author: SPEARS, Justice.

text:
    ROYAL GLOBE INSURANCE COMPANY, Petitioner, v. BAR CONSULTANTS, INC., Respondent.
    No. B-7765.
    Supreme Court of Texas.
    Feb. 14, 1979.
    Rehearing Denied March 28, 1979.

      Wilson & Grosenheider, David Moore, Austin, and James E. Ross, Houston, for petitioner.
    Hooper, Robinson & Moeller, Malcolm Robinson, Austin, for respondent.
   SPEARS, Justice.

This is a deceptive trade practice case. The principal question presented on this appeal is whether a misrepresentation about coverage afforded by a policy of insurance, made by the insurance company’s local recording agent, is a deceptive trade practice under Texas statutes for which the insurance company as principal is liable for treble damages.

Petitioner Royal Globe Insurance Company, defendant in the trial court, is appealing from a judgment obtained by Plaintiff and Respondent, Bar Consultants, Inc., for violation of the Deceptive Trade Practices Act and Article 21.21 of the Texas Insurance Code. The Court of Civil Appeals affirmed, 566 S.W.2d 724. We affirm, but on different grounds.

Bar Consultants, Inc. operated a bar near the campus of The University of Texas known as “The Bucket.” The president of Bar Consultants, Inc., John Barber, testified that he purchased a policy of insurance from Tully Embrey, an agent of Royal Globe, sometime prior to September 1975. The one-year policy was renewed on September 4, 1974 and again on September 4, 1975. Each contained identical terms which included a vandalism and malicious mischief endorsement. Barber testified that before the first policy was written, he had a lengthy discussion with Embrey about the problem of vandalism at which time Em-brey assured him that he was “totally covered” from losses caused by vandalism. His testimony was uncontradicted.

The policy in question is a Texas Standard Policy covering fire and extended coverage. An endorsement attached includes coverage for vandalism and malicious mischief. The insurance memorandum says that the property covered is “[o]n the contents in the . . . building,” giving the address of “The Bucket.” The term “contents” is defined in the policy.

On January 31, 1974, during the policy year 1973-74, Royal Globe paid a vandalism claim filed by Bar Consultants. The description of the damage on the proof of loss form was “Vandals inflicted damage in the bathroom area for which insured is liable under lease contract.”

On the night of March 5, 1976, the men’s rest room at The Bucket sustained extensive damage. The main sewer line was stopped up by one or more plastic cups; the flush valve part of the urinal had been torn away. The stoppage in the main sewer line caused the facilities in both men’s and women’s rest rooms to overflow. The partitions between the commodes were torn down, water was nearly an inch deep on the floor of the rest room and out into the hall. The acoustical ceiling had been torn down, as had the light fixtures. In addition, the floor tiles came loose and the carpet was ruined. The trial court found that the damage was caused by vandalism or malicious mischief and that it cost $1,735.15 to repair.

The day following the damage Barber called Embrey’s office. Embrey was not in, but his secretary, after a discussion with Barber, told Barber to “go ahead; have the work done. You’re covered under the policy.” Later Barber talked with Embrey who told him the same thing. Subsequently, Royal Globe refused the claim, and Bar Consultants filed this suit against Embrey and Royal Globe.

Bar Consultants alleged that the damages were covered by its policy and asked for actual damages plus a penalty of 12% interest and attorney’s fees, or in the alternative for actual and exemplary damages because of the fraudulent misrepresentations of the agent, and in the further alternative for treble damages, attorney’s fees and return of premiums because, if in fact the policy did not cover such damage, then such representations and policy terms were false, deceptive and misleading, in violation of Article 21.21, Section 4(1), Texas Insurance Code, and Section 17.46(a)(12) of the DTPA.

The trial court found that under Article 21.02 and under the facts and circumstances of this case Tully Embrey was “at all times an agent” for Royal Globe; that Embrey, as Royal Globe’s agent, represented to Bar Consultants that the policy covered all damages caused by vandalism, including the damage in question; and that the policy did not cover the damage in question. The trial court awarded Bar Consultants a judgment for $5,205.45, as treble the cost of repairs, plus $1,991.00 attorney’s fees against Royal Globe. The Court of Civil Appeals affirmed, holding that Embrey’s statement on the day after the loss of March 5 that the loss was “covered” under the policy, when in fact it was not, was a violation of both Article 21.21 of the Insurance Code and Section 17.46 of the Deceptive Trade Practices Act.

In order to determine what is a deceptive trade practice or act, as that term applies to a local recording agent for an insurance company, it is necessary to look at the definition of such act or practice given by the legislature. Section 16 of Article 21.21 declares that a cause of action for treble the actual damages may be brought by:

“Any person who has been injured by another’s engaging in any of the practices (1) declared in Section 4 of this Article or (2) in rules or regulations lawfully adopted by the Board under this Article to be unfair methods of competition and unfair and deceptive acts or practices in the business of insurance or (3) in any practice defined by Section 17.46 of the Business and Commerce Code, as amended, as an unlawful deceptive trade practice . .” (Emphasis and numbering added.)

We will therefore examine each of the three cumulative definitions of deceptive trade practices or acts. The first is set out in Section 4 of Article 21.21 which declares in part:

“Sec. 4. Unfair Methods of Competition and Unfair or Deceptive Acts or Practices Defined. — The following are hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance:
“(1) Misrepresentations and False Advertising of Policy Contracts. Making, issuing, circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages promised thereby . . . .” (Emphasis supplied.)

The second reference to a deceptive trade practice or act made by Section 16 is “in rules or regulations lawfully adopted by the [State] Board [of Insurance] under this Article . . . .” Pursuant to Section 13 of Article 21.21 the Board in 1971 adopted rules and regulations prohibiting “any trade practice that is a misrepresentation of an insurance policy,” including both material misrepresentations of fact and of law, whether done “directly or indirectly,” and irrespective of “capacity or connection with such insurer.”

The third definition of a deceptive trade practice or act incorporated into Article 21.-21, Section 16, is found in Section 17.46 of the DTPA. Subsection (a) of Section 17.46 declares unlawful “[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” Subsection (b) lists specific acts or practices which are included in the definition of “false, misleading, or deceptive acts or practices.” Subsection (b)(12) prohibits:

“. . . representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve . . . .”

Royal Globe by its first point of error contends that there is no evidence that its agent Embrey had authority to make statements and representations that were binding upon Royal Globe. Having determined what activity is prohibited, it is necessary to examine Embrey’s legal relationship with Royal Globe and to determine the extent to which Royal Globe is responsible in law for his actions in misrepresenting policy coverage.

It is clear from the record before us that Tully Embrey was the local recording agent of Royal Globe as that term is defined in Article 21.14, Section 2:

“. . .a person or firm engaged in soliciting and writing insurance, being authorized by an insurance company . to solicit business and write, sign, execute and deliver policies of insurance, and to bind companies on insurance risks . . .”

Embrey issued the policy in question from the “Tully Embrey Insurance Agency”; he signed the policy for Royal Globe as its agent and Royal Globe has not denied his authority to do so.

In describing the circumstances of a local recording agent’s authority, this Court said in Shaller v. Commercial Standard Insurance Co., 158 Tex. 143, 309 S.W.2d 59 (1958), at page 63:

“. . . The purpose of the statute was to vest local recording agents with authority co-extensive with that of the company insofar as writing insurance is concerned and to remove all questions of the local agent’s actual or apparent authority from the field of cavil or dispute.

The trial court found that Embrey was Royal Globe’s agent under the provisions of Article 21.02, which says:

“Any person who solicits insurance on behalf of any insurance company, whether incorporated under the laws of this or any other state or foreign government, or who takes or transmits other than for himself any application for insurance or any policy of insurance to or from such company, or who advertises or otherwise gives notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk, or receive, or collect, or transmit any premium of insurance, or make or forward any diagram of any building or buildings, or do or perform any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company other than for himself, or who shall examine into, or adjust, or aid in adjusting, any loss for or on behalf of any such insurance company, whether any of such acts shall be done at the instance or request, or by the employment of such insurance company, or of, or by, any broker or other person, shall be held to be the agent of the company for which the act is done, or the risk is taken, as far as relates to all the liabilities, duties, requirements and penalties set forth in this chapter. . . (Emphasis supplied.)

The final words, “in this chapter,” refer to Chapter 21, which includes Article 21.21, the article prohibiting deceptive acts or practices.

Royal Globe cites Hartford Fire Insurance Company v. Walker, 94 Tex. 473, 61 S.W. 711 (1901), in which this Court held that the predecessor of Article 21.02 did not confer any power or authority to contract beyond what the law and the terms of his appointment already gave him. Not only was this case decided before Article 21.21 was enacted, but it and others cited by Royal Globe deal with the authority of a soliciting agent, which is clearly much more limited than the authority of a local recording agent authorized to sign and execute insurance policies. International Security Life Ins. Co. v. Finck, 496 S.W.2d 544 (Tex.1973); Mutual Life Ins. Co. of N. Y. v. Anderson, 408 S.W.2d 335 (Tex.Civ.App.1966, writ ref’d n.r.e.). In Home Ins. Co. of N.Y. v. Roberts, 129 Tex. 178, 100 S.W.2d 91 (Tex.Comm.App.1937, opinion adopted), we held that a recording agent could orally waive a policy provision despite a policy provision to the contrary. See also N.Y. Fire Insurance Co. v. Reed, 138 S.W.2d 138 (Tex.Civ.App.1939, writ ref’d). The one case cited by Royal Globe which dealt with local recording agents, State Farm Mutual Automobile Ins. Co. v. Matlock, 462 S.W.2d 277 (Tex.1970), concerned representations made after the loss occurred. More importantly, none of the cases cited by Royal Globe involved questions of deceptive acts or practices defined by the statutes here invoked; all involved the questions of contractual liability. Hartford Fire Insurance Company v. Walker, supra; State Farm Mutual Automobile Ins. Co. v. Matlock, supra; International Security Life Ins. Co. v. Finck, supra; Great American Casualty Co. v. Eichelberger, 37 S.W.2d 1050 (Tex.Civ.App.1931, writ ref’d); Reeves v. New York Life Insurance Company, 421 S.W.2d 686 (Tex.Civ.App.1967, writ ref’d n.r.e.); Wyche v. Trinity Universal Ins. Co., 198 S.W.2d 158 (Tex.Civ.App.1946, no writ); Westbrook v. Millers Mutual Fire Ins. Co. of Texas, 374 S.W.2d 248 (Tex.Civ.App.1963, no writ).

We are not to be understood as holding that the statutory authority granted an agent under Article 21.02 authorizes that agent to misrepresent policy coverage and bind the company to terms contrary to those of the written policy; that question was decided by us in International Security Life Ins. Co. v. Finck, supra. However, an insurance company that authorizes an agent to sell its policies may not escape liability for the misrepresentations made by that agent which violate Article 21.21 or Section 17.46 merely by establishing that the agent had no actual authority to make any such misrepresentation.

Neither Article 21.21 nor Section 17.46(b)(12) require either expressly or by implication that an agent have actual authority before an insurance company can be found to have vicariously committed a deceptive act or practice. Section 1 of the regulations of the Board of Insurance impliedly negates such a requirement when they include acts

“. . . whether done directly or indirectly, and irrespective of whether the person is acting as insurer, principal, agent, employer or employee, or in other capacity or connection with such insurer.” See note 8, supra, for full text.

To require actual authority would emasculate both Article 21.21 and Section 17.46 and provide a violator with an easily manufactured defense. It would only be necessary for a corporate principal to deny that an agent had actual authority to perform an act, even though a reasonably prudent man, using diligence and discretion in view of the insurance company’s conduct, would naturally suppose the agent possessed such authority.

There is even stronger evidence of legislative intent that the absence of actual authority of an agent is not a defense to a violation of Section 17.46 when the agent is clothed with apparent authority to do the act or make the representation. Section 17.46(c)(2) provides that in construing actions brought under the Act, the legislative intent is that:

“. . . the courts to the extent possible will be guided by Subsection (b) of this section and the interpretations given by the federal courts to Section 5(a)(1) of the Federal Trade Commission Act.”

Numerous federal decisions made applicable to this case by Section 17.46(c), hold that lack of actual authority is not a defense if the agent is acting within the apparent scope of his authority, and not even instructions not to mislead nor diligence in preventing the misrepresentations will exculpate the corporate principal. Standard Distributors v. F.T.C., 211 F.2d 7 (2nd Cir. 1954); Goodman v. F.T.C., 244 F.2d 584, 591-3 (9th Cir. 1957). See Maxwell, Public and Private Bights and Remedies Under the Deceptive Trade Practices—Consumer Protection Act, 8 St. Mary’s L.J. 617, 638-39 (1977).

Embrey as a local recording agent for Royal Globe, had statutory authority under Article 21.02 and Article 21.14(2) to sell insurance policies for the company and by necessary implication to represent the coverage afforded by such policies to the consumer. If his representations were false as the trial court here found, under the explicit language of Section 16, Article 21.-21 and Section 17.46(b)(12) of the DTPA, his actions constituted a deceptive act or practice for which his principal is accountable.

Though it may be harsh to hold a principal liable for the deceptive acts of his agents where he does not authorize or have knowledge that they occurred, such result is clearly called for by the legislature’s enactment of the DTPA. Woods v. Littleton, 554 5.W.2d 662, 669-71 (Tex.1977). The rationale behind this agency principle is expressed by Justice Learned Hand when he wrote:

“. . . since the principal has selected the agent to act in a venture in which the principal is interested, it is fair, as between him and a third person, to impose upon him the risk that the agent may exceed his instructions.” Standard Distributors v. FTC, supra, at p. 15.

By its next point of error, Royal Globe argues that Bar Consultants has presented no evidence that it was “injured” or suffered damages as a result of Embrey’s representations. We agree with Petitioner’s contention with regard to the post-loss representation of coverage made on March 6, but hold that there is evidence that Bar Consultants was “adversely affected” and “injured” when it relied on the misrepresentations of coverage made by Embrey at the time of the initial policy in 1973 and impliedly made each time the policy was renewed. The injury to Bar Consultants was that it believed it was covered by a policy of insurance from any loss caused by vandalism when it was not so covered. Bar Consultants’ damage was the reasonable and necessary cost of repairs made necessary by the vandalism. That belief was made even more logical and reasonable by the knowledge that, prior to renewing the policy, Royal Globe paid a claim for the same type damage to the bathroom area without questioning coverage, thus giving credence to the agent’s previous misrepresentations.

Accordingly, the representations made by agent Embrey at the time the policy was sold in September 1973 and impliedly made to Bar Consultants upon each renewal do furnish a basis for deceptive act or practice liability of Royal Globe, and there is evidence to support the trial court’s findings in this regard.

We disagree with the Court of Civil Appeals’ holding that the representations made by Tully Embrey and his secretary after the loss had occurred constituted a deceptive trade act or practice. In the first place, Embrey was in the business of selling insurance, not the business of adjusting claims, and his post-loss statement that “you’re covered” under the policy was not within his actual or apparent authority. Secondly, there is no evidence that Bar Consultants, Inc. took any action based on the post-loss representation to its injury or damage. The evidence was clear that Bar Consultants, Inc. would have repaired the damages to the rest rooms regardless of the post-loss representation in order to open for business immediately, whether or not the loss was covered by insurance. Since Bar Consultants was going to have the damage repaired anyway, it could not have been “injured” or “adversely affected” by the post-loss representation. We agree with Petitioner Royal Globe that the Court of Civil Appeals was in error in holding that Bar Consultants relied on the post-loss representation of Embrey in a way that caused Bar Consultants any actual damages. Garnor-Evans & Co. v. Webber, 363 S.W.2d 383 (Tex.Civ.App. writ ref’d n.r.e.); Reiger v. DeWylf, 566 S.W.2d 47 (Tex.Civ.App.1978, writ ref’d n.r.e.).

The judgment of the Court of Civil Appeals is affirmed.

      . Tex.Bus. & Comm. Code Ann. § 17.46 et seq. (Supp.1978); abbreviated hereinafter as DTPA.

      . All references to Article 21.02-21 are to the Texas Insurance Code.

      . Plaintiffs Exhibit 10 shows policy dates of September 4, 1973 to September 4, 1974.

      . Barber’s testimony was as follows:

        “Q. When you secured the first policy from Mr. Embrey, did you sit down and discuss with him what your needs and concerns were concerning what coverage you wanted?
      “A. Yes, we did. We sat down with him at length and described all the problems that we — or I had occur over the past years that I had been in this business, and one of the things that we stressed was vandalism, liability insurance and fire. And numerous times, we had discussed this while he was in the process of selling us the policy. We had gone out to his office at a time I believe he was in the Franklin Savings and Loan Building handling a lot of their work, and he came very highly recommended to us. And we sat down many different times and explained to him exactly what we wanted, and he assured us that we would be covered for everything that we had discussed.
      “Q. And he never told you that you would be covered for everything except somebody destroying leasehold improvements?
      “A. No, he did not tell us that.
      “Q. He told you — there were no exclusions as far as his representations to you?
      “A. In fact, we sat down and went over the lease with them, and I believe in the lease it says that we are responsible for all of the property within the confines of the walls of what was then called The Bucket.
      “Q. And he assured you you were totally covered?
      “A. Yes, he did.”

      . Tully Embrey was dismissed as defendant pri- or to trial.

      . An apparent misreference; subsection (a) has no paragraph (12) as does (b), which was intended.

      . Our examination of the policy does not compel the conclusion of the trial court that the loss was not covered; however, that question is not before us.

      . Texas State Board of Insurance, Regulation In Respect to Insurance Trade Practice, Advertising and Solicitations, Docket No. 18663, Dec. 3, 1971, reads in part:
      “Sec. 1. DECEPTIVE ACTS OR PRACTICES OF INSURERS, AGENTS, AND CONNECTED PERSONS. PURPOSE OF REGULATION. It is the purpose of these Rules and Regulations to further define and state the standards that are necessary to prohibit deceptive acts or deceptive practices by insurers and insurance agents and other persons in their conduct of the business of insurance or in connection therewith, whether done directly or indirectly, and irrespective of whether the person is acting as insurer, principal, agent, employer, or employee, or in other capacity or connection with such insurer.

      “Sec. 4. UNFAIR TRADE PRACTICES PROHIBITED. (a) Misrepresentation of insurance policies, unfair competition, and unfair practices by insurers, agents and other connected persons are prohibited by Article 21.20 and Article 21.21 or by other provisions of the Insurance Code of Texas and by the rules and regulations of the State Board of Insurance. No person shall engage in this State in any trade practice that is a misrepresentation of an insurance policy, that is an unfair method of competition, or that is an unfair or deceptive act or practice as defined by these and other Rules and Regulations of the State Board of Insurance authorized by the Code.
      “(b) Irrespective of the fact that the' improper trade practice is not defined in any other section of these Rules and Regulations, no person shall engage in this State in any trade practice which is determined pursuant by law to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.
      “Sec. 5. MISREPRESENTATION DEFINED. STANDARDS FOR DETERMINING MISREPRESENTATION. The term misrepresentation, or the prohibited conduct, act or practice that constitutes misrepresentation by a person subject to the provisions of this regulation, is defined as any one of the following acts or omissions:
      “(a) any untrue statement of a material fact; or
      “(b) any omission to state a material fact necessary to make the statements made (considered in the light of the circumstances under which they are made) not misleading; or
      “(c) the making of any statement in such manner or order as to mislead a reasonably prudent person to a false conclusion of a material fact; or
      “(d) any material misstatement of law; or
      “(e) any failure to disclose any matter required by law to be disclosed, including failure to make disclosure in accordance with the provisions of these and other applicable regulations of the State Board of Insurance.”

      . Article 21.21 was based on Article 5053, Rev.Stat.1925 (Acts 1909, p. 192) as amended.


source: Caselaw Access Project

author: VOLLERS, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Lucien COLEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 55242.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 8, 1978.
    Rehearing Denied March 21, 1979.
    J, R. Musslewhite, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Robert A. Shults, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

The appellant was convicted of the offense of aggravated robbery and a jury assessed the punishment at life. The appellant raises seven grounds of error, all of which involve the introduction of evidence relating to extraneous transactions which reflect the commission of extraneous offenses.

In its case-in-chief the State presented testimony that the appellant committed a robbery, along with two accomplices, at a Rice Food Market on March 31, 1975. It was shown that appellant and his accomplices got money from the manager, a cash register and deliverymen. A fingerprint expert identified one of the prints lifted from the cash register as belonging to the appellant.

Appellant was the only defense witness and he testified that he did not know where he was on the date in question but that he was not at the food market where the robbery occurred. He further stated that he had never been in that market.

In rebuttal the State presented evidence that the appellant had participated in four other robberies. The admissibility of the evidence of the four other robberies is raised by appellant in grounds of error number two, three, four and five. In those grounds of error the appellant contends that there were insufficient similarities between the extraneous transaction and the primary offense to warrant the introduction of such evidence.

The law is well settled that an accused may not be tried for some collateral crime or for being a criminal generally. Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Halliburton v. State, Tex.Cr.App., 528 S.W.2d 216; Alvarez v. State, Tex.Cr.App., 511 S.W.2d 493. However, there are exceptions to this general prohibition against the use of extraneous transactions which show extraneous offenses. It was pointed out in Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, 100, that

“Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred—what has been termed the ‘res gestae’—under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act. (5) To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.” [Footnotes omitted.]

From the evidence in this case it is clear that the appellant’s testimony raised the defensive issue of identity and contradicted the evidence which the State had presented upon this issue. It is clear that the extraneous transactions, if sufficiently relevant, were material to this issue and admissible. The question that is presented is whether or not there were sufficient similarities to show such relevancy as to enable the probative value of this evidence to outweigh its obvious prejudicial effect. Without discussing the evidence in detail it is sufficient to say that the extraneous transactions were probably admissible because they showed a similar method of operation in that the robberies were effected in the early morning hours, by a group of two or more, where the manager, checkers and customers or salesmen were victims.

However, appellant’s ground of error number six raises an issue which is dispositive of this appeal. In that ground of error the appellant complains about the admissibility of an extraneous transaction tending to show that the appellant was a participant in a burglary of a habitation belonging to W. K. Duke. The State contends that this extraneous transaction is admissible because an automobile was taken at the same time of the burglary and the evidence tended to show that this was the same automobile used in connection with appellant’s getaway in the robbery at the Lewis and Coker Store which was shown as an extraneous transaction on the issue of identity. It is the State’s contention that the burglary and auto theft were a part of the same criminal transaction as the Lewis and Coker robbery the next day and were admissible. The State relies upon Query v. State, Tex.Cr.App., 485 S.W.2d 924 and Avilla v. State, Tex.Cr.App., 493 S.W.2d 233.

It appears that the State’s reliance upon these two cases is misplaced. In Query v. State, supra, this Court held that an extraneous offense that was a part of the same transaction as the primary offense is admissible. In Avilla v. State, supra, proof of the theft of an automobile was admissible as a part of the extraneous transaction which showed that the taking of the automobile was a part of the actual robbery which was involved in the extraneous transaction.

The question that is presented is whether or not the proof of the burglary and theft of an automobile has any bearing upon the issue of identity for which the extraneous transactions were admissible. We fail to find that the transaction involving the burglary and theft of an automobile has any bearing whatsoever upon any contested issue of fact as to the primary offense in this case. Since this evidence had no relevance as to any contested issue, it was not admissible and it was error for the trial court to allow its proof in this case.

Even though there was proof that appellant was guilty of the offense of robbery in the primary case, and proof connecting him with four extraneous robberies, it must be remembered that the extraneous robberies were admissible only upon the issue of identity. Since the trial court permitted the introduction of proof of an extraneous burglary and theft of an automobile that was not admissible upon any issue, we cannot say that this evidence was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

For these reasons the judgment of conviction is reversed and the cause is remanded for a new trial.

Before the court en banc.

STATE’S MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

On original submission, a panel reversed this conviction because two extraneous offenses were improperly admitted. The majority now overrules the State’s motion for rehearing without written opinion. This writer is convinced that the error, if any, in admitting the extraneous offenses was harmless.

Two key factors which can be used to determine whether admission of an extraneous offense is harmless are the amount of evidence to establish the defendant’s guilt and the number and nature of other offenses which are properly admitted. Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); see Nixon v. State, 572 S.W.2d 699 (Tex.Cr.App.1978). The evidence of appellant’s guilt was overwhelming. Three eyewitnesses identified him and his fingerprint was found on a cash register. His defense was that he was not there and that he did not commit the offense. He could not state where he was on the day in question. Evidence of four similar robberies committed by appellant provided further proof of identity. In addition to his overwhelming proof of guilt, the improperly admitted offenses were of relative unimportance compared to the properly admitted offenses. This could have added little, if any, to the finding of guilt or in the assessment of punishment. The improper evidence, according to the majority, concerned a burglary and theft of a car. The proper evidence concerned four armed robberies. Under these circumstances, a theft and burglary could have only a negligible influence on the jury.

The panel acknowledges the four extraneous robberies were admissible on the issue of identity but the burglary and theft were “not admissible upon any issue.” The panel, therefore, concludes that the evidence was not harmless error.

Thrush v. State, supra, involved a similar situation. Thrush was convicted of robbery by assault. Evidence of several robberies and burglaries was admitted to refute the defensive theory of duress. A tape recording suggesting that Thrush was involved with marihuana and pills was also admitted. We held that these references were improperly admitted. However, we concluded that the error was harmless “in light of the numerous robberies and other extraneous offenses which were clearly admissible, and in light of the overwhelming evidence of appellant’s guilt.”

The drug offenses in Thrush were also “not admissible upon any issue.” Yet, the Court concluded their admission was harmless error because of the overwhelming evidence of guilt and the properly admitted extraneous offenses. The panel neither overrules nor distinguishes Thrush.

The evidence of guilt was overwhelming and the four extraneous robberies make the theft and burglary appear insignificant. The car taken during the burglary the night before was used in the robbery in the present case. This was part of the continuing transaction to commit the robberies and it was admissible.

The holding of Thrush should be applied to the instant case and the judgment should be affirmed.

ODOM, TOM G. DAVIS and W. C. DAVIS, JJ., join in this dissent.


author: W. C. DAVIS, Judge. DOUGLAS, Judge.

text:
    Thomas Lloyd WHITE, Jr. and Michael S. Parks, Appellants, v. The STATE of Texas, Appellee.
    No. 59431.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 15, 1978.
    On Rehearing March 7, 1979.
    None for appellant.
    Henry Wade, Dist. Atty. and Harry Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is a bond forfeiture proceeding, wherein final judgment was entered against appellants on August 29, 1974, and a bill of review denied December 2, 1976. On December 8, 1976, notice of appeal was given and the appeal and supersedeas bonds filed.

Rule 386, Texas Rules of Civil Procedure, provides that an appellant shall file the transcript and statement of facts with the clerk of the appellate court “within sixty days from the rendition of the final judgment and order overruling motion for new trial, or perfection of writ.” No transcript or statement of facts has been filed with this Court by appellant.

On August 23, 1978, Appellee, the State of Texas, filed in this Court a Motion for Affirmance on Certificate pursuant to Rule 387, Texas Rules of Civil Procedure. This rule provides that if appellant fails to file a transcript in the proper time, the appellee may, upon motion, have the case affirmed on certificate; however, this rule further provides that no affirmance of the judgment on certificate shall be had against the sureties on the bond unless the motion to so affirm has been filed within one year after, the right to file the transcript has expired. It is apparent that the period of time allowed for appellant to file a transcript of the record in this case has elapsed. It is also apparent that appellee’s motion for af-firmance on certificate was not timely filed. Accordingly, Appellee, the State of Texas, is entitled to have the judgment affirmed against the principal, but not the surety, upon the bond. Gonzales and Crutchfield v. State, 576 S.W.2d 406 (Tex.Cr.App.1978); Jernigan v. State, 449 S.W.2d 251 (Tex.Cr.App.1968).

Appellee’s motion to affirm on certificate as to appellant, Thomas Lloyd White, Jr., is affirmed.

Appellee’s motion to affirm on certificate as to appellant, Michael S. Parks, is denied and dismissed.

Before the court en banc.

ON APPELLEE’S MOTION FOR REHEARING

DOUGLAS, Judge.

Appellant is a surety appealing from a judgment forfeiting an appearance bond.

In our original opinion we held that under Rule 387, Texas Rules of Civil Procedure, a Motion for Affirmance on Certificate must be filed within one year after the appellant’s right to file the transcript has expired. The recent case of Gonzales v. State, 576 S.W.2d 406 (Tex.Cr.App., 1979), held that the word “bond” in Rule 387(c) refers to an appeal bond or supersedeas bond, not an appearance bond.

Accordingly, appellee’s motion for affirmance on certificate was timely filed and the judgment is affirmed.

The appellee’s motion for rehearing is granted. The judgment is affirmed.


author: ONION, Presiding Judge.

text:
    Armando ROBLES, Appellant, v. The STATE of Texas, Appellee.
    No. 54643.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 24, 1979.
    Rehearing En Banc Denied March 21, 1979.

      Ed J. Kidwell and Alan Brown, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Donald A. Clowe and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a burglary of a habitation conviction, where the punishment was assessed at life imprisonment after a verdict finding the appellant guilty and a finding that he had been previously convicted of two felonies as alleged in the indictment.

On appeal appellant contends that there was no voluntary and knowing waiver of the right to counsel, and no findings to that effect, and that he was required to represent himself without being made aware of the dangers and disadvantages of self-representation.

The record reflects that the indictment was returned on March 17, 1976 alleging the primary offense occurred on or about January 12, 1976. Arraignment was on April 9, 1976. On April 29, 1976, at the first setting of the case, the record shows the following colloquy:

“THE COURT: Mr. Robles, as I understand, I think you are having some misunderstanding with your attorney. The State has announced ready in these cases, and we have a Jury available, if you want a trial by a Jury. And, the Court wants to proceed with the cases. I want to get them disposed of.
“Now, you have previously employed Mr. Pena, who is a very good lawyer. The Court has a real high regard for him. But, I understand sometimes Defendants and lawyers do disagree.
“Now, it’s going to be necessary for us to go on with the trial. If you don’t want Mr. Pena to be your lawyer, I am still going to require that he stay here during the trial so that if, somewhere along the line, you change your mind and you do want him, he can just pick it up there. You have been in jail for a good while. I don’t want you to be in jail longer than necessary.
“So, I want to go ahead with the trial.
“Now, if you have another lawyer that is ready to come right in and start the trial right now, you can have a different lawyer; otherwise, you are either going to have to go on with Mr. Pena, or you will have to represent yourself with him standing by.
“MR. ROBLES: Well, I don’t want him to represent me.
“THE COURT: You don’t want Mr. Pena?
“MR. ROBLES: No.
“THE COURT: I am going to require that he stay here in the Courtroom during the trial anyway, but that’s not what you are doing. I’m going to make him do that so that if something happens in the middle of the trial and you say, hey, wait a minute. I have changed my mind. I do need a lawyer. He will be here.
“So, Mr. Pena, you can sit at the counsel table or back at the bench or wherever you are going to be most comfortable.
“Now, do you want to plead guilty or not guilty?
“MR. ROBLES: Not guilty.
“THE COURT: You want to plead not guilty. All right. Do you want a trial with a Jury or do you want a trial just before me, without a Jury?
“MR. ROBLES: I want a lawyer. I don’t want him.
“THE COURT: Okay. Okay. You don’t have him. You don’t have him. But, the thing is, we have got to start right now. And, if you have another lawyer, he can come in right now, but the trial has to begin now. You know we have been putting it off and putting it off. And now this is Thursday and we are about to run out of this week. And, I just don’t want you to stay in jail any more.
“THE COURT: Okay. Let’s get a Jury Panel.
“Now, do you want to get another lawyer of you own choosing?
“MR. ROBLES: Yes, sir. I would like to have another lawyer.
“THE COURT: All right. Do you have somebody that you have hired?
“MR. ROBLES: No, sir.
“THE COURT: Okay. I won’t delay the case to get another one. And, Mr. Pena is the lawyer, as far as this Court is concerned. And you can talk to him about any questions that you have, or you don’t have to talk to him if you don’t want to. But we are going to go ahead with the trial and, from time to time, he will tell you things and I will tell you things, too. But we are going to go on with the trial now. So you can be seated.
“MR. PENA: Could I have a statement read into the Record, please?
“THE COURT: Sure.
“MR. PENA: My name is Richard Pena and I am the attorney of record in the State of Texas Versus Armando Robles, in Cause Number 76-CR-568, and that I have, on this day, filed a Motion with the Honorable 175th Judicial District Court to be allowed to withdraw as an attorney of record for the said Armando Robles. That said Motion was denied and that there are three cases pending against said Defendant. That with the habitual counts upon a finding of guilty, will automatically sentence the Defendant to life imprisonment, that after strenuous negotiations with the District Attorney’s Office, we have agreed upon a recommendation of thirty years in two cases, and dismissal of the third. That the Defendant was apprised by his attorney that he believed that the agreement was reasonable and that the Defendant agreed to plead guilty and accept the recommendation of the District Attorney’s Office, subject to the Court’s approval. That when the stipulations were made, the Defendant refused to sign them and stated that he would not plead guilty, against his attorney’s advice. And also stated that he did not want the said Richard Pena to represent him. Again, in open Court, on this date, the 29th day^of April, he has reiterated that he would represent himself and that the Court has instructed the said Richard Pena to stand by said Defendant, Armando Robles, if he needed him for any reason.
“Thank you, Your Honor.”

Later, the trial court dictated into the record “Now, let the Record reflect that the Defendant, Armando Robles, has previously employed Richard Pena as his attorney, that he does not desire Richard Pena to continue to represent him. Mr. Pena had asked that he be permitted to withdraw. The Court is directing that the Case proceed to trial and that Mr. Pena remain in the Courtroom to assist the Defendant, if he needs assistance, or asks for it, as the trial proceeds.”

When the jury panel was brought into the courtroom, the trial judge advised the panel that the appellant had “determined that he wants to defend himself . . . ” and that attorney Pena had been appointed to assist if such assistance was needed.

After the State concluded its voir dire examination, attorney Pena interrogated two prospective jurors and was successful in having the court excuse both of them. No other voir dire examination was conducted by him or the appellant. During the presentation of the State’s case-in-chief at the guilt stage of the trial there was no cross-examination of any of the State’s five witnesses and no objection was offered by the appellant. He called no witnesses in his behalf. Attorney Pena did not participate except to make a 118 word jury argument.

At the penalty stage of the trial, attorney Pena offered objections to State’s Exhibit # 4, a pen packet, offered in connection with appellant’s alleged prior convictions, which were overruled. There was no cross-examination of the fingerprint expert, the only State’s witness at this stage of the trial. Attorney Pena did call the assistant district attorney prosecuting the case as a defense witness and elicited from him, without objection, that one of the prior convictions offered, while a felony at the time of that conviction, was a misdemeanor under the new Penal Code because of the amount of marijuana involved.

Attorney Pena did argue at the penalty stage of the trial, pointing out he could not quarrel with the jury’s verdict of guilty, but noting that one of the prior felony convictions would be a misdemeanor under present law and argued, without objection, an inconsistency in dates of another conviction between that alleged and proved although his objection to the same had been earlier overruled by the court and which was without merit.

These are the facts with which we are confronted and with which we must work. The appellant appeared in open court at the first setting of the case a month and twelve days after indictment and informed the court he did not want to be represented further by his retained counsel. The court gave him the choice of (1) continuing with the same counsel, or (2) obtaining another retained counsel ready to go to trial immediately, or (3) representing himself.

With regard to the first choice, appellant expressed his dissatisfaction with his counsel apparently because of a disagreement on plea bargaining. In connection with the second choice, it appears the appellant was in jail and there was no inquiry into appellant’s financial ability to acquire other counsel completely aside from new counsel’s ability to proceed to trial immediately without preparation. The second choice was not a feasible choice at all. As to the third choice, there is no evidence in the record, at the time appellant was required to represent himself, if he did not resort to the other two choices, the appellant desired to represent himself. This then is not the usual case where the accused affirmatively waives the right to counsel and demands the right of self-representation.

It is well settled that the Fourteenth Amendment to the United States Constitution extends to the states as a matter of due process the Sixth Amendment provision that in all criminal prosecutions the accused shall enjoy the right to the assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), and cases there cited. Article I, § 10 of the Texas Constitution also provides for the right to counsel for an accused in a criminal prosecution.

This right to counsel may be waived. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Webb v. State, supra; Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975); Sanchez v. State, 454 S.W.2d 210 (Tex.Cr.App.1970). For such waiver to be valid, it must be voluntarily and knowingly made. Parker v. State, 545 S.W.2d 151, 155 (Tex.Cr.App.1977); Ex parte Ross, supra; Webb v. State, supra. Waiver may be defined as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver of the constitutional right to counsel will not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962); Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970); Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975); Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976). A waiver will not be “lightly inferred” and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, supra. And a heavy burden rests upon the prosecution to demonstrate an intelligent, voluntary and knowing waiver of constitutional rights, particularly as applied to the right to retained or appointed counsel. Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. And it has been held in this state that a trial court may not force an accused to accept an attorney if he wishes to waive representation and defend himself. Webb v. State, supra.

The following principles, however, were laid down by Faretta v. California:

1. The Sixth Amendment vests the right to conduct the defense of a criminal case directly in the accused. He has the choice of self-representation or of assistance of counsel.
2. The right of self-representation is the basic or primary right, and that of assistance of counsel supplements it.
3. “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits . Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with his eyes open’. . . . ” 422 U.S. at 85, 95 S.Ct. at 2541, 45 L.Ed.2d at 581.

In Webb v. State, supra, this court stated:

“When an accused makes known his desire to represent himself, the court should take care to ascertain that he fully understands the consequences of waiving his right to representation of counsel and proceeding to represent himself.”

It should be remembered, however, an accused’s right to represent himself or select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Webb v. State, supra; Thompson v. State, 447 S.W.2d 920 (Tex.Cr.App.1969); Estrada v. State, 406 S.W.2d 448 (Tex.Cr.App.1966). An accused, therefore, may not wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he may retain other counsel. Webb v. State, supra; Keys v. State, 486 S.W.2d 958 (Tex.Cr.App.1972); Stovall v. State, 480 S.W.2d 223 (Tex.Cr.App.1972); Miller v. State, 479 S.W.2d 670 (Tex.Cr.App.1972); Brown v. State, 464 S.W.2d 134 (Tex.Cr.App.1971).

In the instant case, while the appellant on the day of trial stated he did not want his retained counsel, he further stated he wanted a lawyer, another lawyer, but he was told that unless he already had hired someone ready to go to trial there would be no delay in the trial, and that his retained counsel would stand by to assist him if needed, and the trial proceeded with the appellant representing himself. There is nothing to indicate that appellant was trying to manipulate the orderly procedures of court. Thus, we are not confronted with a situation where the court refused the defendant’s request to discharge counsel and ordered counsel to continue, nor a situation where appellant asks to waive counsel and urges the right of self-representation. Here retained counsel was allowed to withdraw, but to remain in the courtroom to assist upon request, and the appellant was told to represent himself if he was unable to produce another hired attorney immediately. There is nothing to indicate the appellant’s desire to waive the right to counsel and no expressed effort to seek self-representation. There was no attempt to persuade him from attempting to conduct his own defense nor were the hazards of doing so explained.

A request for other counsel is not a waiver of the right to counsel. Thomas v. State, 550 S.W.2d 64, 68 (Tex.Cr.App.1977). Retained counsel should have been required to remain in the case until there was an affirmative waiver of the right to counsel and a request for self-representation.

In the instant case there was no voluntary and knowing waiver of the right to counsel and no showing that appellant was made aware of the dangers and disadvantages of self-representation so as to establish that the appellant knew what he was doing and that this required choice was made with his “eyes open.” See and cf. Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.


author: TOM G. DAVIS, Judge.

text:
    Raul MEZA, Appellant, v. The STATE of Texas, Appellee.
    No. 56206.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 24, 1979.
    Rehearing En Banc Denied March 21, 1979.
    Stephen W. Russell, Austin — on appeal only — for appellant.
    Ronald D. Earle, Dist. Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. Punishment was assessed at twenty years.

In three grounds of error, appellant challenges the admission of his oral confession.

We note that in Meza v. State, 543 S.W.2d 189 (Tex.Civ.App.—Austin, 1976, no writ), the appellant challenged the admission of this confession in his appeal of the juvenile court’s transfer of jurisdiction to the district court. The Court of Civil Appeals held that the confession was properly admitted. 543 S.W.2d at 192. The admission of the confession is now challenged on different grounds.

On December 31, 1975, the appellant and three other juveniles robbed the night manager of a U-Totem convenience store in Austin. In the course of the robbery the manager was taken into a cooler in the rear of the store and shot in the back by the appellant.

On January 3, 1976, at 9:30 a. m., the appellant was arrested pursuant to an arrest warrant by Sergeant Schwettman of the Austin Police Department. While still in appellant’s residence, Schwettman read the appellant his Miranda rights in the presence of Pat Castro, the appellant’s stepfather. Schwettman read these warnings from a “blue card,” and then asked if appellant understood or had any questions. Schwettman stated that he did not interject anything between the warnings, but read the card without interruption.

Appellant was then taken to the Youth Services facility at the police station, arriving at approximately 10:00 a. m. after the officers had first stopped and taken another suspect in the robbery into custody. Appellant was not taken before a magistrate until 3:40 p. m., however.

Sergeant Gambrell, who was also present when the appellant was arrested, did not accompany appellant and the other officers back to the station, but instead continued his investigation. He returned to the station between 12:00 and 1:00 p. m. with other evidence gathered in his investigation. Gambrell then called the municipal court, and when informed that no judge was present, asked that a judge be contacted. He then took the appellant from the Youth Services department and brought him to his office in the Armed Robbery detail.

Gambrell read the appellant his Miranda rights, pausing between each statement and inquiring whether the appellant understood. He also warned the appellant that he could be certified as an adult by the juvenile court and tried as an adult for the offense. Appellant responded that he understood each of those rights, and in response to questioning made the oral confession that is the subject of this appeal.

From Gambrell’s office the appellant was taken to the residence of another juvenile involved in the robbery. At that residence, he directed the officers to the inculpatory evidence discovered as a result of his confession. Appellant was returned to the police station at 3:40 p. m. and taken before a magistrate. The magistrate warned the appellant of his rights out of the presence of the police officers. No other statement was made by the appellant, and he was transferred to Gardner House, a juvenile detention center.

Appellant’s mother testified that about noon on the day in question she called Gambrell and asked the officer if the appellant needed “a lawyer or anything.” She stated that Gambrell responded, “No, he doesn’t,” and that he would call her when the appellant was transferred to Gardner House. She again called at about 3:30 p. m. and asked if she needed to go to the police station. She stated that she was told that she did not need to go to the police station and that she would be informed when a transfer to Gardner House occurred.

Pat Castro, appellant’s step-father, testified that he did not think that the appellant paid attention while being read his Miranda rights at the residence. He further stated that he had listened to his wife as she made two calls to the police station.

The trial court entered findings after a pre-trial hearing that appellant’s waiver was knowingly and intelligently made and that the confession was freely and voluntarily made.

Appellant initially contends that the trial court erred in finding that the appellant knowingly and intelligently waived his right to counsel and to remain silent. The circumstances cited by the appellant as showing that his waiver was not knowing and intelligent are:

1. Appellant’s age;
2. The length of time that he was alone with police;
3. The absence of a showing that he was asked whether he wished to assert any of his rights;
4. The isolation from his family and friendly adult advice;
5. The failure to warn the appellant in Spanish;
6. The length of time before he was taken before a magistrate and warned.

Whether a defendant knowingly and intelligently waived his right to counsel and to remain silent is determined from the totality of the circumstances surrounding that waiver. Castro v. State, 562 S.W.2d 252; McKittrick v. State, 541 S.W.2d 177; Estes v. State, 507 S.W.2d 216. Although the age of the defendant is one factor to be considered, the fact that the defendant was a juvenile at the time of his arrest is not controlling. Moreno v. State, 511 S.W.2d 273. Nor does this waiver have to be express. Moreno v. State, supra. Each case must be considered on its own facts to determine if the waiver was knowingly and intelligently made.

In the present case, the appellant was given the Miranda warnings twice before the oral confession was made. He was not questioned continuously for an extended period of time, nor was there any showing that oppressive, abusive, or coercive tactics were used in that questioning.

Appellant did not testify at either the suppression hearing or at trial. We can only judge his maturity and ability to understand his rights from the testimony in the record before us. The officers’ testimony that the appellant acknowledged that he understood his rights is, in effect, uncontra-dicted.

The officers’ statements to appellant’s mother do not, standing alone, show a deliberate isolation of the appellant. At no time did the officers state that no one could see the appellant, nor is there a showing that they actually prevented access to the appellant.

We cannot say from the record before us that the delay in taking appellant before a magistrate was unreasonable or intentional. Sergeant Williams attempted to contact a magistrate before questioning appellant, and the record indicates that no magistrate was available at that time.

There is no evidence indicating that the delay was calculated to coerce a confession from the appellant. The officer who questioned the appellant had continued his investigation, and immediately upon concluding the investigation attempted to contact a magistrate.

We find that the evidence supports the trial court’s findings that appellant knowingly and intelligently waived his rights and that the confession was freely and voluntarily made.

Appellant also contends that the confession was obtained while the appellant was in custody in violation of V.T.C.A. Family Code, Sec. 52.02. He maintains that unless Sec. 52.02 was complied with any detention was illegal, and hence any confession during that detention would be tainted.

As pertinent to this ground of error, Sec. 52.02(a)(3), provides that:

“(a) A person taking a child into custody, without unnecessary delay and without first taking the child elsewhere, shall do one of the following:
******
“(3) bring the child to a detention facility designated by the juvenile court; . . . .”

On cross-examination, appellant’s counsel elicited the following from Sergeant Gamb-rell:

“Q. Did you bring him to a detention facility prior to bringing him elsewhere and without unnecessary delay?
“A. Sergeant Williams did.
“Q. A detention facility designated by the juvenile court?
“A. Yes, sir.
“Q. Is not that detention facility Gardner House?
“A. It’s Youth Services of the Department.
“Q. Are you saying that the police department is the facility designated by the juvenile court for detention and not Gardner House?
“A. There’s a special facility of the Department for the handling of juveniles.
“Q. Do you personally know where Sergeant Williams took Raul Meza?
“A. To the Juvenile Detail.
“Q. You have personal knowledge of that, not what Sergeant Williams told you?
“A. That’s where he was when we arrived.”

From the record before us, we find that Sec. 52.02, supra, was complied with.

Appellant finally contends that Y.T. C.A. Family Code, Sec. 51.09(b)(2), is unconstitutional, as it permits police to take oral confessions without Miranda warnings and further that the distinction made between oral and written confessions has no rational basis. Appellant argues that greater protection is afforded a juvenile making a written confession than is given a juvenile making an oral confession.

Article 38.22, V.A.C.C.P., is the general statute controlling the use of confessions in criminal trials. Although Art. 38.22, supra, does not on its face require Miranda warnings before an oral confession leading to other evidence of the crime is admissible, this Court has held that lack of such a requirement does not affect the applicability of Miranda. Noble v. State, Tex.Cr.App., 478 S.W.2d 83; Valerio v. State, Tex.Cr.App., 494 S.W.2d 892; Moore v. State, Tex.Cr.App., 505 S.W.2d 887. Article 38.-22(l)(e), supra, as in effect at the time of the cases cited above, provided:

“1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if: ******
“(e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

Section 51.09(b)(2), supra, the specific statute applicable to oral confessions made by juveniles, provides:

“(b) Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
“(2) it be made orally and the child makes a statement of facts or circumstances that are found to be true, which conduct tends to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

We hold that Sec. 51.09(b)(2) does not dispense with Miranda warnings, and thus is constitutional in the face of such a challenge.

Finally, absent a suspect classification, so long as a statute’s unequal treatment of persons is based upon a reasonable and substantial classification, it does not deny equal protection. Milligan v. State, Tex.Cr.App., 554 S.W.2d 192; Ex parte Rubin, Tex.Cr.App., 362 S.W.2d 331.

The Legislature’s establishment of different requirements as to the admissibility of confessions by juveniles, hinged on whether the oral confession leads to discovery of inculpatory evidence, is a reasonable and rational classification. A confession that does not lead to inculpatory evidence would lack the indicia of truth present when a confession leads to evidence which tends to establish guilt. Requiring greater protections as a prerequisite to admission of a confession that does not lead to such evidence is a rational and reasonable basis to attach that greater protection. We find that Sec. 51.09, supra, does not violate the equal protection guarantees of either the state or federal constitution.

We hold that the appellant’s confession was properly admitted into evidence.

The judgment is affirmed.

      . Meza was 15 years old at the time of the offense.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See In re D. M. G. H., 553 S.W.2d 837 (Tex.Civ.App.—El Paso, 1977).

      . Amended, effective Aug. 29, 1977.


author: ROBERTS, Judge.

text:
    Rodolfo Cruz RAZO, Appellant, v. The STATE of Texas, Appellee.
    No. 58698.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 24, 1979.
    Rehearing En Banc Denied March 21, 1979.
    Knox Jones, McAllen, for appellant.
    Leslie E. Reed, Asst. Dist. Atty., Edin-burg, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana. The court found appellant guilty and assessed his punishment at a one-hundred-dollar fine and five years’ imprisonment, probated.

Appellant’s sole contention is that the marihuana admitted into evidence was the fruit of an unreasonable search and seizure, and therefore should have been excluded by the court. We affirm.

The record reflects that at approximately 8:45 a. m. on September 24, 1977, Department of Public Safety Officers Buckley and Starnes, pursuant to the authority granted by Tex.Rev.Civ.Stat.Ann., Art. 6687b, Sec. 13, were conducting a routine driver’s license check. The officers stated that they were stopping every car on U.S. Highway 281, approximately seven miles north of San Manuel. After the officers stopped appellant, Buckley walked up to appellant’s vehicle, a station wagon, identified himself, and requested to see the appellant’s operator’s license. At about this time, Buckley smelled a strong odor of marihuana emanating from the inside of the station wagon. After appellant presented a valid Texas operator’s license, Buckley walked to the rear of the station wagon and detected even a stronger odor of marijuana. He then loosened a screw which held a panel on the vehicle’s rear door and there discovered inside the door a large quantity of marihuana, more of which was found under the vehicle’s rear seat; a total of fifty-one pounds of marihuana was recovered as a result of this search.

Appellant places full reliance on our decision in Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1976) as authority for his contention that the search in the present case was violative of his state and federal constitutional rights. See Tex.Const., Art. I, Sec. 9; U.S.Const., Amend. IV. We conclude, however, that Faulkner is inapposite to the present case; appellant’s reliance is misplaced.

In Faulkner, police officers stopped the car driven by Faulkner because they had a suspicion or hunch that the car was stolen. The State attempted to justify the officers’ action by the authority granted to peace officers by Art. 6687b, supra. After Faulkner, who was standing between his car and the police car, presented a valid Texas operator’s license, the officers, still unsatisfied, walked over to Faulkner’s car, checked the vehicle inspection sticker, shined a flashlight into the car and observed a pistol lying on the floorboard. A search of Faulkner’s person produced several live rounds of .45 caliber ammunition, some white powder, some pills and a large sum of money. Faulkner was then arrested and his car was towed to a private salvage yard where, the next morning, the proprietor inadvertently discovered several pounds of marihuana in the trunk. In concluding that the arrest of Faulkner and the incident seizure of the marihuana was unlawful, we recognized that although Art. 6687b, supra, authorizes officers to stop and detain motorists for the limited purpose of checking their operator’s license, it does not authorize fishing expeditions. Faulkner at 2, supra. We finally concluded that even if the officers were justified in detaining Faulkner under Art. 6687b, supra, in order to check his operator’s license, once that was accomplished they did not possess sufficient probable cause to detain him for the further investigation which resulted in his arrest and subsequent seizure of contraband.

This Court in the past has upheld the validity of temporary detentions authorized by Art. 6687b, supra, under circumstances which show the check of the driver’s license to be the sole purpose for detention. See Fatemi v. State, 558 S.W.2d 463, 465 (Tex.Cr.App.1977), and cases there cited. On the other hand, the mere asking for a driver’s license will not validate the stopping of an automobile if it is clear the license check was not the reason for the initial detention. Fatemi v. State, supra.

It is true, as we said in Faulkner, that the scope of an investigation cannot exceed the purposes which justified its initiation; however, a qualification of this rule, which went unstated in Faulkner because it was not presented by the facts of the case, is that if, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for the physical evidence. Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974), and authority there cited.

In the present case, unlike Faulkner, it is uncontroverted that the officers who conducted the search of appellant’s vehicle were, prior thereto, conducting a routine driver’s license check on U.S. Highway 281; while they were in the process of checking appellant’s driver’s license, one of the officers detected a strong smell of marihuana; when he went to the rear of the vehicle, the odor of marihuana became even stronger; it was then that he removed the rear door panel and discovered the contraband in question. Thus, during the legitimate detention of appellant, the officers acquired additional probable cause to believe a more serious charge was being committed and were therefore justified in searching appellant’s vehicle. Under these facts, we conclude that the contraband seized was properly admitted into evidence. See Tardiff v. State, 548 S.W.2d 380 (Tex.Cr.App.1977); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973). As we stated in Tardiff, supra:

“Appellant concedes that the officer was justified in his initial stop of the car, for his authority for this act is without question. Art. 6687b, Sec. 13, Vernon’s Ann.C.S. However, appellant seems to think that as soon as the officer hands the license back to the driver a veil falls to block out his view of any activity in the automobile. We cannot agree. Any articulable facts and circumstances which come into the officer’s knowledge during the license check, or, for that matter, at any other time, may justify further investigation.” (Citations omitted.) Ibid at 382.

The judgment is affirmed.

      . Article 6687b, supra, provides in relevant part as follows:
      . . Any peace officer may stop and detain any motor vehicle operator for the purpose of determining whether such person has an operator’s license as required by this Section.”

      . Police officers testified that they stopped Faulkner because he was driving slowly and seemed “cautious” or “conscious” of the officers’ proximity and also because the car he was driving bore out-of-county license plates.


text:
    B. R. RINGER, Appellant, v. The STATE of Texas, Appellee.
    No. 56096.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 31, 1979.

      Marvin 0. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and John B. Holmes, Jr., Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated promotion of prostitution; punishment is imprisonment for five (5) years and a fine of $5,000, probated.

Appellant has set forth twenty-two grounds of error in which he complains that: (1) the indictment is defective; (2) the evidence is insufficient to sustain the conviction; (3) hearsay evidence was erroneously admitted; (4) the court erred in refusing to charge the jury on the law of circumstantial evidence; (5) the court’s charge did not correctly apply the standard of reasonable doubt; and (6) the judgment does not conform to the verdict.

The Venetian Spa was owned by the Crestmont Corporation, of which appellant was an incorporator.

M- G_ J_ and E-F_ were arrested and charged with prostitution but were given immunity after they agreed to testify for the State. M_G_J_testified that she was hired by appellant to work as a masseuse at the Venetian Spa. M-G_J_was told by appellant that she could give “locals” to (masturbate) customers who became sexually aroused during the massage. Appellant told her that the customers were to be given locals on every massage, regardless of the cost, and that this “relief” was to be a part of the massage. During the two months that M_ G-J-worked at the spa, there were only one or two customers to whom she did not give locals. Appellant also told her when she was hired that giving locals was not a criminal offense, and that nurses were allowed to give locals in hospitals. Appellant and M_ G- J-entered into an agreement to divide equally the proceeds from massages given by M_ G_ J_Appellant stopped at the Venetian Spa “periodically” to pick up money and receipts. After M_ G_ J_ and E_ F-were arrested, a meeting was held at which appellant told M_ G_ J_and several other masseuses at the spa of a new policy regarding the giving of locals. The new policy was that the customer was to be told that the massage was over and that if he wanted relief, it would be provided at no extra charge.

E-F_testified to substantially the same facts as M- G-J_E_ F_ testified that her agreement with appellant provided that she was to receive forty per cent of the proceeds from massages given by her. She also testified that appellant had told her she was required to give locals as a condition of employment at the spa. If she were arrested, a lawyer and bondsman would be provided for her, but she was not to give a statement or testify.

Ralph Derrick, a private citizen who performed undercover investigative work for the Harris County Sheriff’s Department, testified that he visited the Venetian Spa twice. On both occasions, he paid the receptionist $20 for a forty-five minute massage. Both times, he removed his clothes and was massaged for approximately thirty to forty minutes; the masseuse then gave him a local. He did not request a local on either occasion, nor did the masseuse ask if he wanted one. The first time he visited the spa, he stayed in the massage room for approximately forty minutes; the second time, approximately forty-five minutes. On both occasions that he was given locals, Derrick ejaculated and received sexual gratification as a result thereof. He identified M_G_J_and E-F_ as the masseuses who gave him locals.

Charles McCreary and Charles Edwards both testified that they had visited the spa. They paid the receptionist and were given massages that culminated in locals which they did not request. Edwards testified that he also had received a massage at the spa which did not include a local.

The indictment in the instant case alleged that appellant:

“. . . on or about May 14, 1974, did . . . knowingly own and invest in and finance and control and supervise and manage a prostitution enterprise that uses more than one prostitute, namely E- F_ and M- G-J_, at a location in Harris County, Texas, known as the Venetian Spa.”

Appellant filed two motions to dismiss the indictment, both of which were overruled by the court. On appeal, appellant complains that the language of the indictment is so vague and indefinite that he cannot plead the judgment given upon in bar of a prosecution for the same offense. See Article 21.04, V.A.C.C.P. Specifically, appellant argues that the term “prostitution enterprise” does not enable a person of common understanding to know what is meant nor does it give him notice of the particular offense with which he is charged. See Article 21.11, V.A.C.C.P. Although the term “prostitution enterprise” is not defined in the Penal Code, it has been defined by this court as meaning “a plan or design for a venture or undertaking in which two or more persons offer to, agree to, or engage in sexual conduct in return for a fee payable to them.” Taylor v. State, 548 S.W.2d 723 (Tex.Cr.App.1977).

Appellant argues that since the Taylor case was not decided until he was convicted, he was unable to avail himself of the above definition. Be that as it may, we cannot agree that the indictment in the instant case is defective. The term “prostitution” is defined in the Penal Code [V.T.C.A., Penal Code, §§ 43.01, 43.02(a)(1)], and the word “enterprise” is one of common usage. We hold that the allegations of the indictment are set forth with sufficient certainty to give appellant notice of the offense with which he was charged.

Appellant also asserts that the indictment is defective because it alleges that he owned, invested in, financed, controlled, supervised and managed a prostitution enterprise that used “more than one prostitute,” whereas it is provided by statute that a person commits the offense of aggravated promotion of prostitution if he owns, invests in, finances, controls, supervises or manages a prostitution enterprise that uses “two or more prostitutes.” V.T.C.A., Penal Code, § 43.04. Because of this dissimilarity of language, appellant argues that the indictment does not state an offense against the laws of this state; alternatively, he argues that the indictment alleges only the offense of promotion of prostitution [V.T. C.A., Penal Code, § 43.03], which is a misdemeanor offense over which the district court did not have jurisdiction.

To support this argument, appellant maintains that the phrase “more than one prostitute” in the indictment means “one prostitute.” We cannot agree with this imaginative interpretation. There is no rule of logic, grammar or statutory construction according to which “more than one” means “one.” The phrases “more than one prostitute” and “two or more prostitutes” mean precisely the same thing, and the indictment sufficiently alleges the offense of aggravated promotion of prostitution.

Appellant also urges that the court’s charge, which employed the phrase “two or more prostitutes,” is erroneous for instructing the jury as to factual allegations not contained in the indictment. This contention is, for the reasons discussed, supra, wholly without merit.

Appellant urges that the evidence is insufficient to sustain the conviction. He argues that there is no evidence that acts of prostitution were committed at the Venetian Spa or that the Venetian Spa was a “prostitution enterprise.” Appellant also argues that it was not proved that he knew acts of prostitution were being committed at the Venetian Spa.

In support of this contention, appellant points out that the fees for the massages were paid to the receptionist and that no money exchanged hands between the customers and the masseuses. It was uncon-troverted, however, that for each massage a masseuse performed she would receive either forty per cent or fifty per cent of the amount paid the receptionist. It also was shown that each customer at the spa would receive a local as part of the massage for which he paid. Derrick testified that on both occasions when he received locals, they were performed on him during the forty-five minute period for which he paid $20 to be massaged. It also was shown that each customer was given a local whether or not he requested it, and that the masseuse would perform the local, without inquiring as to whether the customer desired it, as part of the massage.

V.T.C.A., Penal Code, § 43.02(a)(1), as in effect at the time of the offense, provided that a person commits the offense of prostitution if he “offers to engage, agrees to engage, or engages in sexual conduct in return for a fee payable to the actor.” We find the evidence sufficient to prove M_ G_ J- and E_ F_ were guilty of prostitution by engaging in sexual conduct in return for fees payable to them. We also find that the evidence is sufficient to prove the Venetian Spa was a “prostitution enterprise” as that term has been defined by this court. See Taylor v. State, supra.

Both M_G_J_and E_ F_ testified that appellant instructed them that locals were to be given as part of each massage. M-G-J_further testified that appellant instructed the masseuses, after M-G_ J_ and E- F-were arrested, that a new policy concerning the giving of locals was to be instituted. We hold that the evidence is sufficient to prove appellant knew M- G-J_and E_F_had committed acts of prostitution at the Venetian Spa, and the evidence is therefore sufficient to sustain the conviction.

A copy of what purported to be E_ F_⅛ employment contract was admitted in evidence. E-F_denied that the signature on the agreement was hers. The State then introduced a copy of a statement given by E_F_after she was arrested, for the limited purpose of comparing the signature thereon with the signature on the employment contract. The statement was admitted over appellant’s objection that it was hearsay, and both the statement and the contract were examined by the jury so that the signatures could be compared. The State subsequently moved that all of the statement except E_ F_⅛ signature be excised, and the motion was granted. The court also instructed the jury that the statement as originally admitted was to be considered for the sole purpose of showing E_ F_⅛ alleged signature.

The statement as originally admitted is in the record before us. It contains nothing that was not testified to by EF-in court. Moreover, the statement was not hearsay because it was not offered to prove the truth of the matters asserted therein. See Huff v. State, 560 S.W.2d 652 (Tex.Cr.App.1978). We hold that admission in evidence of the entire statement by E_F_was harmless error. See Huff v. State, supra; Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Fazzino v. State, 531 S.W.2d 818 (Tex.Cr.App.1976).

Appellant also complains that other hearsay was erroneously admitted in evidence. Shirley Brandt, a former employee of the Venetian Spa, testified that appellant never instructed her to give locals to customers. She also testified that the spa’s policy on giving locals was not changed after M_ G_ J_ and E_F_were arrested. To rebut Brandt’s testimony, the State called another former employee of the spa, Kathrine Wright. Wright testified as follows regarding the change in policy:

“Shirley Brandt told us she had gotten a telephone call, and we were from then on before we ever gave any massage on a massage to tell them that the massage was complete, and ask them if they would like us to relieve them, and there would be no extra charge for this.
“Q All right. What do you mean by relieve?
“A Your masturbation word.
“Q All right. Who was the phone call from? Who did she say the phone call was from?
“A From Mr. Ringer.”

The proper predicate for Wright’s testimony was laid when the State asked Brandt if she had made such a statement and she denied doing so. See Thumann v. State, 466 S.W.2d 738 (Tex.Cr.App.1971); Marshall v. State, 384 S.W.2d 893 (Tex.Cr.App.1964). Wright’s testimony of a prior inconsistent statement by Brandt was permissible for impeachment. See Lafoon v. State, 543 S.W.2d 617 (Tex.Cr.App.1976); Thrash v. State, 500 S.W.2d 834 (Tex.Cr.App.1973); Bellah v. State, 415 S.W.2d 418 (Tex.Cr.App.1967).

Appellant contends that the court erred in refusing to instruct the jury on the law of circumstantial evidence. He argues that there is no direct evidence of appellant’s knowledge that the Venetian Spa was a prostitution enterprise. We do not agree. Appellant’s instructions to M-G_J_and E_F_re-garding locals constituted direct evidence of appellant’s knowledge. The court properly refused to instruct the jury on the law of circumstantial evidence.

Appellant asserts that the court erred in refusing six requested charges. The effect of these requested charges was to require the jury to find appellant not guilty unless it found that he owned and invested in and financed and controlled and supervised and managed a prostitution enterprise. The court’s charge properly allowed the jury to convict appellant if it found that he was guilty of any of the six above means of participating in a prostitution enterprise. See Cowan v. State, 562 S.W.2d 236 (Tex.Cr.App.1978). The court properly refused appellant’s requested instructions.

Appellant’s final contention is that the judgment does not conform to the verdict. The jury recommended that appellant be granted probation for his term of imprisonment and his fine, but the judgment does not so reflect. The judgment is reformed to show that both the term of imprisonment for five years and the fine of $5,000 are probated.

As reformed, the judgment is affirmed.