text:
    Bernard DODD, Petitioner, v. TEXAS FARM PRODUCTS COMPANY, Respondent.
    No. B-7839.
    Supreme Court of Texas.
    Jan. 31, 1979.
    Larry R. Daves, Tyler, for petitioner.
    William Drew Perkins, Luflin, for respondent.
   SAM D. JOHNSON, Justice.

The issue to be resolved in this case is whether or not the trial court erred in granting the defendant’s motion for judgment notwithstanding the jury verdict. Suit was instituted by Bernard Dodd, plaintiff in the trial court, against Texas Farm Products Company (“Texas Farm”), defendant below, for personal injuries sustained while working on the premises of Texas Farm. The case was tried to a jury, which found in favor of Dodd, awarding him damages in the amount of $86,000. The trial court, however, granted Texas Farm’s motion for judgment non obstante veredicto and rendered a take-nothing judgment against Dodd. The court of civil appeals affirmed the judgment of the trial court, holding that there was no evidence to support the jury finding of Texas Farm’s negligence. 567 S.W.2d 919. Because we find that there was some evidence to support the jury findings, we reverse the judgments of the court of civil appeals and the trial court and render judgment on the jury verdict for Dodd.

At the time of the accident, Dodd was an employee of Lone Star Phosphate Company (“Lone Star”) in Nacogdoches, Texas. Lone Star and Texas Farm are closely related, having common officers and stockholders. The two companies are located on lots adjacent to each other and are physically connected by a common shed approximately two hundred yards long. Lone Star produces phosphate which Texas Farm buys and uses to make fertilizer. Texas Farm is Lone Star’s only customer. After the phosphate is produced at Lone Star, it is transported under the common shed over to the Texas Farm fertilizer plant where it is stored in bins.

On Friday, April 13, 1973, the day of the accident, Dodd reported to Lone Star for his regular work shift, which ran from six o’clock in the morning to two o’clock in the afternoon. About nine o’clock, McShan, Dodd’s foreman at Lone Star, asked him if he would go next door to the Texas Farm premises to move some sulfate that was in one of the storage bins. Dodd said that he would do so. Dodd then went over to Texas Farm with McShan.

Sulfate is a salt-like material that becomes tightly compacted when left in storage. In order to move the sulfate, a low grade, slow-burning dynamite was detonated to loosen and break it up. The explosive was referred to as powerful and dangerous. The testimony concerning the dynamite was that “they keeps it out in storage where fire and stuff ain’t supposed to get to it. It’s dangerous; that’s dangerous stuff there.” Dodd could obtain the dynamite from storage only when he was told by one of his bosses to do so. In order to detonate the dynamite, an auger-like rod first was used to drill a hole in the sulfate. Ten to twelve sticks of dynamite would then be put in the hole, with a blasting cap on one of the sticks. Wires would then be attached to the blasting cap and the battery on a tractor, which would be used to detonate the explosive. The explosive was not only powerful, but also sometimes erratic. As Dodd noted, “It’ll blow — if it don’t catch in there just right, it can blow that stuff from here to the back side of this court house.” After the dynamite had been exploded, the loosened sulfate was then loaded by tractor with a front-end loader. On the instance in question, Dodd and his Lone Star foreman, McShan, placed a string of explosives in the hole they had drilled in the compacted sulfate. The dynamite was then detonated. For some unknown reason, the dynamite did not explode as planned. To quote Dodd, “Well, undoubtably, it broke up some, but it didn’t fall like it was supposed to fall. It — a few buckets fell and I picked it up.”

It is important to note here that the sulfate material was held in place by an elevated retaining wall of some sort. The wall, apparently made of plywood, was located about fifteen or twenty feet above the ground. Dodd testified that while he was picking up the sulfate, he heard a “pop.” Looking up, he noticed that one of the angle iron support rods on the retaining wall was bent, twisted “a good half a round.” He directed McShan’s attention to this condition of the support for the retaining wall and tried to convince McShan to leave the site and return to the Lone Star plant. In his deposition testimony concerning the safety of the retaining wall after the explosion, McShan stated that he looked at it, inspected it, and concluded: “There was nothing wrong with the wall. At one time, I thought I saw it move, but I went on, and I said, well, it must not have moved; and I kept going.” When asked if Dodd said “anything at all about the sulfate falling in,” McShan replied, “I couldn’t recall right now, to tell the truth.” Dodd testified, however, that McShan had agreed to leave the scene after the explosion and their conversation.

At this time, however, Riddle, a supervisor for respondent Texas Farm, and the only Texas Farm employee connected with the accident, came to the site of the aborted explosion. It was under these circumstances and at this point in time that these two supervisors, Riddle of Texas Farm and McShan of Lone Star, had a private conversation out of the hearing of the employee, Dodd. During their conversation, Riddle glanced at the retaining wall, but made no further inspection of it. Following this conversation, McShan returned to Dodd with a complete change of plans. According to Dodd, “[McShan] told me, he came back and told me that he wanted to got [sic] ahead and get the sulfate out, and he would knock it down, and would I pick it up.” Dodd responded, “If it don’t kill you, I don’t guess it’ll kill me.” While Dodd was doing the work as he was told, and as a result of the damage occasioned by the defective blast, the plywood retaining wall and the compacted sulfate crashed in upon him, resulting in extensive personal injuries.

Dodd filed the instant suit and at the trial testified to most of the aforementioned facts. Portions of McShan’s deposition were read into the record, but McShan did not personally appear to testify. Riddle, the Texas Farm employee, did not testify either. The jury found that Texas Farm failed to inspect the retaining wall after the blast, that such failure was negligence, and that such negligence was a proximate cause of the accident. The jury assessed Dodd’s damages in the amount of $86,000. Upon motion by Texas Farm, the trial court rendered judgment notwithstanding the verdict. The court of civil appeals affirmed. We reverse the decisions of both courts.

To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made the findings relative to Texas Farm’s failure to inspect the wall. In acting on the motion, all evidence must be considered in a light most favorable to support the jury verdict, and “every reasonable intendment deducible from the evidence” is to be indulged in favor of the verdict. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). Only the evidence and inferences therefrom that support the jury finding should be considered, with all contrary evidence and inferences being rejected. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952). A judgment notwithstanding the verdict can only be upheld when rendition of a directed verdict would have been proper. Rule 301, Texas Rules of Civil Procedure.

The court of civil appeals noted that if the retaining wall was in a dangerous condition, Texas Farm owed Dodd a duty to repair it and make it safe, and that this duty arose when Texas Farm learned of the dangerous condition or, in the exercise of reasonable care, should have known of it This is not to be confused with actual knowledge of the condition of the retaining wall, and the jury in fact found here that Riddle did not have such actual knowledge. The issue is whether the record contains any evidence showing that there was a failure to properly inspect the retaining wall by Riddle. We are of the opinion that, when taken together, the events, the time involved, the instruments involved, and the surrounding circumstances present some evidence of a failure to properly inspect.

The evidence shows that Dodd and McShan were engaged in dangerous work with explosives on the premises of Texas Farm. As this was work that happened with regularity, it must have been known to Texas Farm. As it sometimes occurred, the explosion did not go as planned. It did result in a twisting of one of the angle iron support rods, which supported the retaining wall. This condition was visible at the site where all of the events took place. The condition was seen by Dodd. McShan even thought he saw the wall move and agreed to leave the site in any event. At this time, at the culmination of this sequence of events, Riddle, Texas Farm’s supervisory employee, came to the site and proceeded to talk privately with McShan. During the conversation, Riddle at least glanced at the retaining wall. Being with McShan and Dodd, he could observe the same things they could see: the compacted sulfate that had not been properly loosened, the few buckets of sulfate on the ground that had been obtained from the abortive explosion, the two workers (McShan and Dodd) still on the premises, the tractor in place, nothing further being done to obtain the needed sulfate, and the two workers preparing to leave the premises. All of this occurred just after the abortive explosion on the premises during regular working hours and at a site under the supervision and control of the supervisory employee of Texas Farm. At the very least, this should have led to an inquiry into the circumstances of the defective explosion, which in turn could only have led to a discovery of Dodd’s fears about the retaining wall. Riddle apparently made no such inquiry. Instead, immediately following Riddle and McShan’s conversation, McShan proceeded directly to complete the dangerous work, instructing Dodd to finish moving the sulfate out of the bin where all of this had occurred. Dodd was injured while doing so. Under these circumstances, we are unwilling to say that there was no evidence from which the jury could have concluded that Riddle should have inspected the wall before either instructing the work to proceed or permitting the work to proceed.

“It was the jury’s province to weigh all of the evidence and to decide what credence should be given to the whole or to any part of the testimony of each witness. ‘The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.’ Stephenville, N. & S. T, R. Co. v. Shelton, Tex.Com. App., 208 S.W. 915, 916.” Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616, 618 (1944).

Since there was some evidence to support the jury findings, the trial court erred in granting Texas Farm’s motion for judgment non obstante veredicto and the court of civil appeals erred in affirming such action. Therefore, we reverse the judgments of both courts. Inasmuch as Texas Farm brought forth no cross points in the court of civil appeals, we render judgment for Dodd on the jury verdict. Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967).

      . Dodd’s primary job for Lone Star was operating machinery in the control room while making phosphate. However, it was not unusual for Dodd to work for Texas Farm, inasmuch as it was common for the two corporations to exchange employees. In fact, Dodd had worked the “graveyard” shift at Texas Farm the night before, from ten o’clock Thursday night until six o’clock Friday morning, at which time he reported to Lone Star for his regular shift. Dodd had been a regular employee of Texas Farm for about fifteen years, from 1953 to 1968, before being transferred to Lone Star in 1968. At the time of the accident, Lone Star employed twelve people and Texas Farm employed over five hundred. There was a frequent interchange of employees, with the “borrowing” company reimbursing the other for the borrowed employee’s wages. This practice was considered by this court in a worker’s compensation action brought by Dodd based on the same accident. Dodd v. Twin City Fire Ins. Co., 545 S.W.2d 766 (Tex.1977).

      . Although in another instance Dodd testified that McShan “asked” him to move the sulfate, he gave the following explanation of the meaning of that term: “Q Okay. Did you have any choice in terms of whether you could say no, I’m not going to do it, or anything else? A Well, not off-hand. If I did, I figured I’d be fired.”

      . The jury failed to find that Riddle, the only Texas Farm employee at the scene of the accident, had actual knowledge of the condition of the retaining wall. The jury further failed to find that Dodd was contributorily negligent. The parties acknowledge that the manner in which this case was submitted to the jury would today be incorrect in light of our decision in Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978).

      . In this connection, we note that the trial court overruled Texas Farm’s motion for a directed verdict, stating as its reason therefor the following:
      “[I’m concerned about] primarily whether or not there’s any evidence to support this case going to the Jury. It appears there is some and we all recognize as attorneys that if there is any evidence of appropriate [sic] value it must be submitted to the Jury. The Court is of the opinion that there probably is some.”


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Holly Ann HANKS.
    No. 60524.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1979.
   ORIGINAL CONTEMPT PROCEEDINGS JUDGMENT

WHEREAS, the Court of Criminal Appeals on the 15th day of January, 1979, made and entered the following order, to-wit:

“No. 60524
“IN THE COURT OP
“CRIMINAL APPEALS OP THE STATE OP TEXAS
ORDER
“WHEREAS, on May 15, 1978, this Court granted a motion for extension of time, granting until August 13, 1978 for the transcription of the court reporter’s notes to be filed in Cause Nos. 16,054-B and 17,782-B in the 78th District Court of Wichita County, styled The State of Texas vs. David Wayne Sheppard; and
“WHEREAS, on August 13, 1978 this Court granted a second motion for extension of time, granting until October 31, 1978 for the filing of said transcription in said cause; and
“WHEREAS, on October 31, 1978, this Court granted a third motion for extension of time, granting until December 30, 1978 for the filing of said transcription in said cause, and our order of October 31, 1978 specifically stated that “NO FURTHER EXTENSIONS WILL BE GRANTED”; and
“WHEREAS, said transcription has not yet been filed, meaning that it was not filed on or before December 30, 1978, the end of the last extension granted by this Court in its said order of October 31,1978;
“NOW, THEREFORE, it is ORDERED, ADJUDGED and DECREED by the Court of Criminal Appeals that said HOLLY ANN HANKS shall show cause why she should not be held in contempt of this Court and punished therefor and that she shall do so by filing her sworn affidavit and by affidavits of other witnesses thereto if any there be, on or before the 5th day of February, 1979, which affidavits shall state facts that deny or excuse the said contempt, if there be any such facts. And it is further ORDERED by this Court that the Clerk of this Court shall issue a NOTICE TO SHOW CAUSE commanding the said HOLLY ANN HANKS to show cause, in the manner and within the period above specified in this order, why she should not be held in contempt of this Court and punished therefor; and a copy of this order shall accompany said notice.
“It is so ordered on this 15th day of January, 1979.
PER CURIAM”

and

WHEREAS, the Clerk of this Court duly issued a Notice to Show Cause as specified in said order of January 15, 1979 and said Notice to Show Cause, together with a copy of said order of January 15, 1979 was properly and personally served on the said Holly Ann Hanks on the 18th day of January, 1979; arid

WHEREAS, on the 5th day of February, 1979, said Holly Ann Hanks filed an affidavit in this Court setting forth certain facts denying or excusing said contempt; and

WHEREAS, this Court is of the opinion that such facts alleged in the affidavit are not acceptable to this Court to deny or excuse such contempt, nor are they sufficient to show adequate cause as to why Holly Ann Hanks should not be held in contempt of this Court and punished therefor; and

WHEREAS, the transcription of the court reporter’s notes in Cause Nos. 16,-054-B and 17,782-B, in the 78th District Court of Wichita County, styled The State of Texas vs. David Wayne Sheppard has not yet been filed;

NOW, THEREFORE it is ORDERED, ADJUDGED and DECREED by the Court of Criminal Appeals that:

(1) The said Holly Ann Hanks is in contempt of this Court.

(2) The said Holly Ann Hanks shall be taken and incarcerated in a county jail and she shall remain so incarcerated until she purges herself of this contempt by filing in the 78th District Court of Wichita County the transcription of the court reporter’s notes in Cause Nos. 16,054-B and 17,782-B, styled the State of Texas vs. David Wayne Sheppard.

(3) The Clerk of this Court shall forthwith issue a capias addressed to any Sheriff within the State of Texas commanding him to arrest the said Holly Ann Hanks and place her in jail and there keep her safely imprisoned until she has purged herself of this contempt as aforesaid and said capias shall recite generally the proceedings had in this case, and it shall be accompanied by a certified copy of this judgment to be served on the said Holly Ann Hanks as further evidence of the Sheriff’s authority.

(4)The Clerk of the 78th District Court of Wichita County shall accept and file the transcription of the court reporter’s notes in Cause Nos. 16,054-B and 17,782-B when completed by said Holly Ann Hanks and such filing shall be considered as “timely” filed under Section 3 of Article 40.09, Code of Criminal Procedure.

JOHN F. ONION, JR. PRESIDING JUDGE

LEON DOUGLAS

TRUMAN ROBERTS

WENDELL ODOM

W. T. PHILLIPS

TOM DAVIS

CARL DALLY

W. C. DAVIS

SAM HOUSTON CLINTON JUDGES


author: PHILLIPS, Judge.

text:
    John McMillan MOULDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 54937.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Stanley I. Weinberg, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, C. Wayne Huff, and Andy Anderson, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

Appellant was convicted for the unlawful possession of marihuana. Punishment was assessed at 30 days’ imprisonment and a $200.00 fine, probated.

Appellant complains in his first two grounds of error that the trial court erred in overruling his motion to suppress the marihuana seized and the course of what he characterizes as an unlawful search and seizure. Appellant’s primary contention is that the odor of burnt marihuana, standing alone, does not provide a peace officer with the requisite probable cause to conduct a warrantless search of a motor vehicle. We disagree with appellant’s position.

In Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, this Court stated, on appellant’s motion for rehearing:

“Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. 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 physical evidence.” Id. at 407.

Initially we note that appellant does not contest the validity of the investigating police officers’ original stopping of the vehicle in which he was a passenger. The police officers testified that they clocked the vehicle in which appellant was riding at 48 miles per hour in a 35 mile per hour zone. See Borner v. State, Tex.Cr.App., 521 S.W.2d 852; Duncantell v. State, Tex.Cr.App., 563 S.W.2d 252; and Duff v. State, Tex.Cr.App., 546 S.W.2d 283. Article 6701d, Section 153, V.A.C.S.

The police officers testified at the hearing on appellant’s motion to suppress that after stopping the vehicle for speeding, they both approached the vehicle and while engaging the occupants in conversation and checking the driver’s license they both detected the odor of burnt marihuana. The police officers conferred at the rear of the vehicle, requested the occupants to exit the vehicle and thereupon searched an unzipped but closed blue overnight bag situated on the floorboards in front of the passenger (the appellant). The search of this bag revealed a plastic bag with what appeared at the time to be marihuana and which was later stipulated to, subject to the appellant’s instant objections, be marihuana. Both police officers testified that they have smelled burning marihuana in their experience and were of the opinion that what they smelled at the time they stopped the vehicle in which appellant was a passenger was marihuana.

This Court stated in Brown v. State, Tex.Cr.App., 481 S.W.2d 106 at 110, that:

“ . . . Probable cause for a search exists where the facts and circumstances within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentality of a crime or evidence pertaining to a crime.”

The Court earlier stated in the same opinion that:

“ . . . Where probable cause is lacking, the challenged search will not be upheld merely because the exigencies of the situation precluded the obtaining of a warrant.” Id. at 109.

It is apparent from the record before us that the searching police officer in the instant case knew what the smell of burnt marihuana was and he smelled the same smell when asking the driver for his license. It is also significant to note that the searching officer’s partner made the same observation. Thus, we are confronted with more than the “inarticulate hunch, suspicion, or good faith” of a police officer which would not constitute probable cause. Appellant seeks to rely on the language found in Taylor v. U. S., 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932), and Johnson v. U. S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Unfortunately, such reliance confuses our constitutional preference for warrants with what specific facts, observations, or circumstances will constitute probable cause. Both the Taylor and Johnson cases referred to dealt with the search of stationary structures. It has long been recognized that automobiles present different analytical problems under search and seizure principles, given their inherent mobility. This “exigent” circumstance countervails our constitutional preference for warrants and is premised on the assumption that an on-the-stop warrantless search is a lesser intrusion on the individual’s privacy expectations. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The facts of this case establish that the police officers validly stopped a moving vehicle for a traffic violation and in pursuit of their lawful authority encountered the aroma of burnt marihuana emanating from the vehicle. Therefore, analysis of this problem falls within the “moving vehicle” exception to the warrant requirement of both federal and state constitutions. In other words, did the police officers have probable cause to search the vehicle. The United States Supreme Court wrote in Johnson v. U. S., supra:

“At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant’s contention, erroneously made, on the strength of Taylor v. U. S., 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.” Id. at 13, 68 S.Ct. at 369.

The evidence in Johnson, supra, possessed by the police officers was that an informant advised them that opium was being smoked at a particular hotel. Upon their arrival, the experienced narcotics agents detected the unmistakable and distinctive odor of burning opium. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), teaches us that the standard for probable cause in a war-rantless search is no less stringent than that required to be shown a magistrate for the issuance of a search warrant. We therefore conclude, on the basis of the foregoing authority and past decisions of this Court, that the police officers in the instant case had probable cause to search the vehicle and the overnight bag situated in front of the appellant on the floorboard after detecting the odor of burnt marihuana. See generally Aldridge v. State, Tex.Cr.App., 482 S.W.2d 171; Leonard v. State, Tex.Cr.App., 496 S.W.2d 576; Tardiff v. State, Tex.Cr.App., 548 S.W.2d 380.

Appellant’s first two grounds of error are overruled.

Appellant’s final contention is that the evidence is insufficient to sustain his conviction for the unlawful possession of marihuana. Appellant’s first line of argument contends that there is no showing that he was in the exclusive control of the vehicle searched. However, appellant misdirects his focus. The contraband was found in an overnight bag situated immediately in front of his seat in the vehicle. When asked, appellant admitted that the bag was his. This certainly establishes that the contraband was within his care, custody, and management. As to whether he knew the substance to be contraband, we note that in addition to the recovered marihuana, the police officers seized rolling papers and a rolling machine. We conclude that the close proximity of the substance and the paraphernalia is sufficient to establish that the appellant knew that the substance was marihuana.

The appellant contends that his statement admitting the ownership of the bag was not placed into evidence during the trial on the merits. However, we note that in the presentation of the case to the court the attorney for the State stated without objection from the appellant:

“The attorney for the State and the attorney for the Defendant and the Defendant are now going to enter into a stipulation. This stipulation is to be incorporated into the record along with the testimony from the previous Motion to Suppress Hearing in this cause.”

It is noted that the statement of facts from the motion to suppress hearing is in the record and that the hearing was conducted before the same county criminal court judge who conducted the actual trial. This statement of facts does reflect the evidence concerning appellant’s statement.

Appellant’s argument that the statement was obtained without a provision of Miranda warnings after the appellant was placed in “investigatorial custody” is not presented for review for nowhere in the record does there appear to be an objection to the admission of such statement. See Larocca v. State, Tex.Cr.App., 479 S.W.2d 669; Watkins v. State, Tex.Cr.App., 411 S.W.2d 364.

We therefore conclude that the evidence established appellant’s exclusive and knowing possession of marihuana. See Duff v. State, supra. Appellant’s third ground of error is overruled.

There being no reversible error, the judgment is affirmed.


author: VOLLERS, Judge.

text:
    Earl BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 56774.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 29, 1978.
    Rehearing En Banc Denied Jan. 17, 1979.

      Antonio G. Cantu, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Gordon V. Armstrong and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

VOLLERS, Judge.

In a trial before the court on a plea of nolo contendere appellant was convicted of aggravated rape. Punishment was assessed by the court at five years.

The record reflects that appellant was duly admonished of the consequences of his plea pursuant to Art. 26.13, V.A.C.C.P. and appellant and his counsel executed a written waiver and consent to stipulation of testimony and stipulations. Included in the stipulated evidence are the sworn statements of the prosecutrix and a female companion who was present at the time of the transaction. The statements reveal that on the night of October 31,1976, complainant, age 26, and her 20 year old companion went to a San Antonio night club. At approximately 1:45 a. m. after they had consumed “a few drinks,” they left the club and walked to their automobile parked in a nearby parking lot. Before the women could enter the car and drive away they were accosted by appellant who asked for a ride. When they refused to give him a ride appellant held on to the door, persisting. Upon being refused a second time, appellant pulled a pistol and put it to the side of the complainant’s head. The complainant asked appellant what he wanted and appellant stated he “wanted my friend.” Complainant told appellant to leave her friend alone and “take me instead.” While still pointing the pistol at complainant, appellant entered the back seat of the automobile and forced complainant to climb over into the back seat with him. Complainant again asked appellant what he wanted and appellant, while holding the pistol at her head, began taking down his pants. Complainant started to remove her pants at which point appellant said “yes, that is what I want.” Appellant continued to point the pistol at the prosecutrix’s head and then forced her to engage in sexual intercourse with him. At appellant’s insistence complainant kissed him and agreed to see him again. Appellant asked for complainant’s phone number and she wrote a fictitious telephone number on his hand. Appellant then stated “now I’ll leave you alone . . .” and left the automobile. The two women immediately searched for and found a policeman and related the incident. Appellant was apprehended a short time later and identified by complainant and her companion as complainant’s assailant.

Omitting the formal portions, appellant’s indictment reads:

“EARL BROWN did then and there knowingly and intentionally by force that overcame such earnest resistance as might reasonably have been expected under the circumstances and threats that would prevent resistance by a woman of ordinary resolution under the same and similar circumstances, because of a reasonable fear of harm have sexual intercourse with . . .” complainant, “a female not his wife, without her consent, and did then and there intentionally and knowingly compel said complainant to submit to such act of sexual intercourse by threatening the imminent infliction of SERIOUS BODILY INJURY AND DEATH to said complainant . . . ”

Appellant’s sole contention on appeal is that the stipulated evidence is insufficient to sustain a finding of guilt by the trial court. Primarily, it appears to be appellant’s contention that to sustain the charge of rape the proof must show that the appellant “compelled his victim to submit by force that overcomes such earnest resistance as might reasonably be expected under the circumstances and he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution.” An examination of Sec. 21.02(b), Penal Code, indicates that there are several ways in which lack of consent to sexual intercourse can be shown. The indictment in this case alleges lack of consent by reason of force as set out in subsection (b)(1) and the lack of consent by reason of threats as set out in subsection (b)(2). In Lucero v. State, 502 S.W.2d 750, 755 (1973), quoting Dyer v. State, Tex.Cr.App., 283 S.W. 820, 823 (1925), this Court acknowledged that:

“It has always been the rule that an indictment which charges a rape to have been committed by force, threats, and fraud, is fully sustained by proof of any one of these three methods thus alleged. See also 4 Branch’s Ann.P.C.2d, Sec. 1937, p. 256.”

Appellant’s further complaint as to the sufficiency of the evidence is aimed at the fact that the victim “volunteered” in order to prevent the forcible rape of her 20 year old companion and thereby consented to intercourse with him. It has long been the rule that “[w]here rape by both force and threats is alleged, it is proper to consider the cogency that the threats may have contributed to the force, and the intensifying influence that the force may have imprinted to the threats.” 48 Tex.Jur.2d 637, Sec. 4; Brooks v. State, 466 S.W.2d 789, 790 (1971). See also Harris v. State, 441 S.W.2d 189 (1969) and Perez v. State, 50 Tex.Cr.R. 34, 94 S.W. 1036 (1906). There are no set criteria by which it can be determined that force either has or has not been applied in any particular rape case, but rather, the facts of each individual case determine the issue. Bundren v. State, 152 Tex.Cr.R. 45, 211 S.W.2d 197 (1948). Though the above cases were decided under the former Penal Code, a comparison of the previous provisions with our present Penal Code’s definitions of “force” and “threats” clearly illustrates a traditional emphasis on the consideration of the totality of the factual circumstances in determining whether consent on the part of the female has been given.

In Brooks, supra, the complainant was at home with only her five year old daughter when the perpetrator, Brooks, entered, pointing a gun at complainant. He grabbed the child and told complainant, “If you don’t want this little girl killed, you will do just what I say.” Brooks then grabbed the complainant’s arm, bent it up against her back and advised her that he could also harm her other children on their return from school. As Brooks continued to remind the complainant of his ability to harm her children, complainant engaged in intercourse with Brooks without resisting. We held that, “it is clear that any resistance to the appellant would have endangered both the prosecutrix and her children. Considering these circumstances, as provided [by law], no resistance by the prosecutrix was required [to illustrate her lack of consent].” Brooks at 790 (emphasis added).

Likewise we find in the case before us, upon consideration of the totality of the circumstances, that no resistance to appellant was required of this victim in order for us to conclude that the subject transaction was effected without her consent. Faced with a situation in which appellant would not be dissuaded by the women’s refusal to give him a ride, then forcing the door open, pulling a gun and holding it to complainant’s head, coupled with the overt threat of permanent trauma to a younger, less mature woman, we find that complainant was prevented from resisting appellant’s advances and was compelled to participate in the act of intercourse. The display of the weapon, the forcible refusal by appellant to allow complainant to close her car door, and the other words and actions of appellant here, were sufficient to prevent and overcome resistance which might be expected by a woman of ordinary resolution, because of a reasonable fear of harm. V.T.C.A. Penal Code, Sec. 21.02(b)(1) and (2).

Inherent in the concept of force, whether it be physical force, threats, or some other type of coercion, is that when involuntarily confronted with distasteful options, it is very human to select that which is the least distasteful. For whatever personal reasons the victim determined appellant’s rape of her would be less distasteful than his raping her young friend, it cannot be concluded that she had the option to exercise any more freedom of choice in the matter than the woman who ultimately submits physically to rape rather than assure her own death or critical injury. The fact that the victim “volunteered” could be interpreted by the trial court not as consent to have sexual intercourse, but as an effort to prevent the rape of her companion. Clearly the victim’s resignation to intercourse with appellant was the result of a combination of threats and force and has no more attributes of a voluntary — or consensual — act than the submission of the mother, pursuant to threats toward her daughter, related in Brooks, supra.

We have stated that “threats may be considered in connection with force resorted to so as to bring the case within the definition of rape.” Harris at 191.

“When both force and threats are alleged, and there is evidence of each, it is not necessary that either the force or the threats measure up to the standard of the statutory definition; the cogency which one contributes to the other may be sufficient to constitute all that is required. Church v. State, 552 S.W.2d 138, 140 (1977); Twomey v. State, 520 S.W.2d 784, 786 (1975).”

Finally, appellant contends that even if his acts constituted rape, there was no element present which would make the transaction aggravated. See n.l, supra. Appellant overlooks the evidence that clearly reflects that he was holding a gun to the victim’s head even as he had sexual intercourse with her. The imminent threat of death or serious bodily injury to complainant was therefore sufficiently existent to aggravate the rape offense. Church v. State, supra.

The evidence is sufficient to sustain the conclusion of the trial court that appellant was guilty of the offense of aggravated rape.

The judgment is affirmed.

      . The offense of rape is committed under V.T. C.A. Penal Code, Sec. 21.02 when
      "(a) A person has sexual intercourse with a female not his wife without the female’s consent.
      (b) The intercourse is without the female’s consent under one or more of the following circumstances:

        (1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
      (2) he compels her to submit or participate by any threat, communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm; . . . ”
      Aggravated rape is defined under V.T.C.A. Penal Code, Sec. 21.03(a)(2) as
      “(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code or rape of a child as defined in Section 21.09 of this code and he:
      (2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.”

      . Article 1183, Vernon’s Ann.P.C., 1925, defined “rape” in part as “the carnal knowledge of a woman without her consent obtained by force, threats or fraud . . Article 1184, Vernon’s Ann.P.C., 1925, defined “force” for purposes of the rape statute as that which “must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.” Finally, Article 1185, Vernon’s Ann. P.C., 1925, provided that the “threat” in rape cases “must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.”

      . See n.l, supra.

      . See also Vanderpool v. State, 155 Tex.Cr.R. 318, 234 S.W.2d 879 (1950); Broadway v. State, 418 S.W.2d 679 (1967).


author: ONION, Presiding Judge.

text:
    Gilbert Cipriano CARRILLO, Appellant, v. The STATE of Texas, Appellee.
    Nos. 60048, 60049.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 29, 1978.
    Ernest W. Kuehne, Jr., Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Fred C. McDaniel and Sue Lagarde, Asst. Dist. At-tys., Dallas, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

On June 2, 1978, appellant waived his right to trial by jury and entered pleas of guilty to two separate indictments, each of which charged him with burglary of a vehicle. Punishment in each case was assessed at imprisonment for three years.

Retained counsel has filed a brief in which he has concluded that the appeals are wholly frivolous. Upon our examination of the records, however, we have found error which calls for reversal and which shall be considered as unassigned error in the interest of justice under Article 40.09(13), Vernon’s Ann.C.C.P.

The certificate of the court reporter found in the records approved by the trial judge states, “ . . . the above and foregoing pages . . . constitute a full, true, accurate and complete transcript of the Statement of Facts, of all proceedings had in” the instant causes. An examination of the transcription reveals that the trial court totally failed to give any admonishment as required by Article 26.13, Vernon’s Ann.C.C.P. See Acts 1977, 65th Leg., p. 748, ch. 280, sec. 1, effective August 29, 1977, and in effect at the time appellant’s guilty pleas were taken. Although dealing with Article 26.13, supra (Acts 1975, 64th Leg., p. 909, ch. 341, sec. 3, effective June 19, 1975), prior to the 1977 amendment of that statute, the case of Kelley v. State, 573 S.W.2d 28 (Tex.Cr.App., 1978 on rehearing), controls the disposition of the instant cases.

In the instant cases there is no showing that appellant was advised of the range of punishment attached to the offense of burglary of a vehicle, nor was it determined that the pleas were freely and voluntarily made, etc., as required by Article 26.13, supra. Under these circumstances, we are not faced with a question of whether there was substantial compliance with that statute, but with a situation of no compliance.

The judgments are reversed and the causes are remanded.


text:
    Horace Barry JORDAN, Appellant, v. The STATE of Texas, Appellee.
    No. 46583.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 20, 1978.
    Rehearing En Banc Denied Feb. 28, 1979.

      Robert N. Udashen, Huntsville, for appellant.
    Henry M. Wade, Dist. Atty., Fred C. McDaniel and James K. Johnson, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

This case arises from an out-of-time appeal granted as a result of post conviction habeas corpus. Appellant challenges the introduction of evidence at his trial which was obtained in a search of his apartment.

Appellant was convicted of the offense of robbery and assessed punishment of 50 years’ imprisonment. The conviction was affirmed on appeal. See Jordan v. State, 500 S.W.2d 638 (Tex.Cr.App.1973). Application for post conviction habeas corpus relief was denied by this Court. On motion for rehearing we reviewed the appellate record and determined that appellant filed a pro se brief in his original appeal which directly raised the issue of validity of the search. A limited out-of-time appeal was granted to consider this question.

This is a companion case to Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973) which involved the same search complained of by appellant. The first question to be decided is whether this Court is bound by its previous holding on the search issue in Lowery, supra. In Oliver v. State, 551 S.W.2d 346 (Tex.Cr.App.1977) and Warren v. State, 523 S.W.2d 237 (Tex.Cr.App.1975) we held that the prior decisions of this Court are binding under the “law of the case” doctrine where the evidence, in its material aspects, is the same as in the earlier case, absent a showing that such holding is clearly wrong and harmful.

On October 28, 1970, the Dallas Police Department secured a warrant for the arrest of Lowery based on an affidavit supported by a hearsay tip from an unidentified informant. On October 29, 1970, approximately twenty policemen went to his apartment to execute the warrant. Several officers entered the apartment and arrested Lowery. This Court reversed the Lowery case, and held that since the arrest warrant was illegal because the supporting affidavit failed to meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the search was not incident to a valid arrest. Furthermore, the Court found that the arrest would not have been justified without a warrant. The Court further found that a 17 year old girl at the apartment, Joyce Strawn, did not give voluntary consent to the search of the apartment.

At the time Lowery was arrested, the appellant in this case was living in the same apartment. Dallas police had been informed that a party using the name of Thomas Elliot was living at Lowery’s apartment and was driving a stolen Cadillac automobile. While the police were inside the apartment, they observed appellant drive up in a Cadillac matching the description of the stolen automobile, step out of the car, take á pistol from his belt, and place the pistol under the front seat of the Cadillac. He was arrested upon entering the apartment, and his person as well as the Cadillac were searched.

Appellant was subsequently tried and convicted of the offense of robbery which occurred at a grocery store. Evidence was introduced at the trial which was obtained in the search of Lowery’s apartment. Appellant complains of the introduction of such evidence at his trial.

The evidence in the instant case as to the admissibility of the evidence seized from the apartment is identical in its material aspects to that of the Lowery case, supra. The evidence as to the validity of the arrest warrant is the same in this case as in the Lowery case. On the issue of consent by Joyce Strawn to search the apartment, she did not testify at appellant’s pretrial hearing to suppress, but her testimony from the Lowery trial was introduced at appellant’s trial by written stipulation. No additional evidence was introduced by the State indicating that our finding of involuntariness of the consent in Lowery was mistaken.

As to the contention by appellant that we are bound by the “law of the case” doctrine because of our previous holding on the search issue in Lowery, supra, it appears that Oliver, supra, and Warren, supra, may have been an unwarranted extension of the “law of the case” doctrine. In 5 Tex.Jur.2d, Section 463 (1959) the doctrine is defined as follows:

“The appellate court’s ruling on a question of law raised on a former appeal will be considered as the law of the case in all subsequent proceedings in the same case unless the ruling was plainly wrong and harmful.”

Numerous cases are cited which have adopted this language, and all of these involved a second appeal by the same defendant in the same case. For example, in Gragg v. State, 152 Tex.Cr.R. 386, 214 S.W.2d 292 (1948), the defendant’s case was on its second appeal. There the Court quoted the language from Texas Jurisprudence cited above, and then stated:

“Were the rule otherwise, trial courts would in a great measure be at sea, and would feel inclined and be authorized to give but little weight to the decisions of the (appellate) court. However, if it appeared that the decision was wrong, and a substantial injury has been done a citizen of this state by such decision, it would be our duty and pleasure to remedy that wrong.”

Both the Oliver and Warren cases deal with appeals by companion defendants which involve the same material facts. They do not involve former ¡appeals by the same party in the same case. While both decisions cite Porter v. State, 154 Tex.Cr.R. 540, 229 S.W.2d 68 (1950) as authority, Porter involved an appeal where the defendant had been previously tried for killing a different man during the same transaction. See Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889 (1948). The Court then applied the law of the case doctrine because the facts were the same in all material aspects and both cases grew out of the same transaction. Therefore, a strict application of the “law of the case” doctrine does not appear to be warranted unless it is a subsequent proceeding in the same case, involving the same parties.

However, in the instant case the facts pertaining to the issuance of a search warrant, the validity of the arrest, the consent to search, and whether or not the search was incident to a valid arrest are the same in this case as they were in the Lowery case in regard to the evidence seized from the apartment where both Lowery and this appellant lived. Although we are not bound by the “law of the case” doctrine in this case, we reach the same conclusion on each of these issues that was reached in Lowery, supra. Though not binding upon us, the conclusion reached in Lowery is certainly persuasive. We again find that the warrant of arrest was invalid, there was no valid arrest without a warrant, there was no search incident to a valid arrest, and there was no voluntary consent to search the apartment given by Joyce Strawn. See Lowery v. State, supra. Under these circumstances the search of the apartment was improper, and the evidence was illegally seized therefrom. Accordingly, we hold that the introduction at appellant’s trial of evidence obtained from the search of the apartment occupied by Lowery and appellant was improper.

Appellant further contends that his arrest and the search incident thereto were improper as fruits of the unauthorized search of his apartment. Appellant complains that the State elicited testimony from the arresting officer concerning a credit card found in appellant’s person, as well as a .45 pistol and five rifles found in the Cadillac, which were obtained as a result of such unauthorized activity by the police.

The officers had received information from a reliable informant that a person driving a stolen late model Cadillac would be at a certain apartment in Dallas. While at that location, the officers observed appellant driving an automobile matching the description of the stolen automobile. In addition, the officers observed appellant place a pistol under the front seat of the Cadillac. These observations corroborated information received from the informant, and provided probable cause for the officers to believe an offense was being committed in their presence. See Article 14.01, V.A.C. C.P.; Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975).

However, appellant asserts that his arrest was the result of the “continuous” operation of the officers in their search of the apartment. We disagree. The observations made by the officers which led to the arrest of appellant could have been made had the officers been positioned on the street rather than in the apartment. This is not a case in which law enforcement officers have exploited a vantage point which was obtained only as a result of an illegal search; it is clear that appellant had no expectation of privacy when he removed a pistol from his belt and placed it under the car seat on a public street. Cf. Ochs v. State, 543 S.W.2d 355 (Tex.Cr.App.1976), cert. denied 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778 (1977); Atwell v. U. S., 414 F.2d 136 (5th Cir. 1969); Hester v. U. S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

The issue upon which this case turns is whether the improper admission at trial of evidence obtained from the apartment search is reversible. The State contends that the error was harmless in view of other evidence introduced at trial. The only physical evidence introduced at trial obtained in the apartment search was a photograph of the appellant which showed him with bleached hair. This corroborated the testimony of State’s witnesses who identified the robber as having had bleached hair. However, the arresting officer testified that appellant had bleached hair on the date he was arrested, October 29, 1970, two weeks after the robbery. Additionally, defense counsel invited introduction of the evidence. Defense counsel showed the arresting officer the photograph on cross-examination which had been marked as a defense exhibit. The record reveals the following colloquy:

CROSS EXAMINATION
(Defense): All right. Unless you want to offer it, I don’t.
REDIRECT EXAMINATION
(State): Did you find that in the apartment out there?
(Officer): I found it in the apartment out there on Sherwood Forest.
(State): Judge, we’ll offer that, offer this into evidence as State’s Exhibit No_
(Defense): It’s marked D-13.
(State): We’ll offer it as D-13.
The Court: Do you have any objection; its admitted into evidence.

The only other evidence from the apartment admitted at trial was the general testimony of Officer Rose that the officers “[f]ound numerous rifles, shotguns, machine gun, quite a bit of radio equipment.” This evidence did not in any way relate to the issue of guilt.

There was substantial evidence of guilt introduced by the State. Two robbery victims made in-court identifications of appellant, and stated that he robbed them at around 8:30 p. m., Sunday, October 14,1970. They further testified that the appellant at that time had bleached hair and wore a blue jump suit. A third witness testified that she sold appellant a blue jump suit around 7:00 p. m., October 14, 1970, and that he made the purchase with a credit card bearing the name Charles Hull. She also said that the appellant had bleached hair at the time of the purchase. Finally, Officer Rose testified that when arrested appellant possessed a credit card bearing the name Charles Hull.

The defendant introduced alibi testimony from his mother and stepfather that he was at his mother’s home in Louisiana the day of the robbery. A friend of appellant testified that she kept a pet for appellant one weekend in October, although she was not sure which weekend it was.

The test for harmless-constitutional error is not whether a conviction could have been had without the improperly admitted evidence, but “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We feel, beyond a reasonable doubt, that this evidence did not contribute to the conviction of the appellant for the offense of robbery.

Although we conclude that the evidence which was erroneously admitted did not contribute to the determination of appellant’s guilt in this case, we must also decide whether or not it was harmless in regard to punishment. Appellant stipulated at trial that he lived at the apartment that was searched. During closing arguments on the issue of punishment the prosecutor told the jury:

“When you think about what his proper punishment should be, think about the vicious injurious habits that he has, carrying a pistol, his apartment there that he stipulated into evidence contained a bomb or bombs, a machine gun, countless rifles; vicious habits.”

Evidence was also introduced at the punishment stage that appellant had a previous felony conviction for burglary. The evidence as to appellant’s guilt proved that he committed an armed robbery, but there was no brutality proved other than the exhibition of a firearm in the commission of the offense.

Under this record the 50 year sentence assessed by the jury in this cause is not unusual, but that is not the question presented here. The question is whether or not we can say that this evidence was harmless beyond a reasonable doubt. Under the facts in this case, we cannot conclude that the prosecutor’s request to the jury to consider this inadmissible evidence in determining punishment did not contribute to the punishment assessed. Therefore, we are unable to say that this error was harmless beyond a reasonable doubt on the issue of punishment.

Since the punishment was assessed by the jury in this cause, and this case cannot be reversed solely upon the issue of punishment, the judgment of conviction is reversed, and a new trial is ordered.

DALLY, J., concurs in result.


author: DALLY, Judge. PHILLIPS, Judge,

text:
    Michael Wayne SPURGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 56010.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 20, 1978.
    Rehearing En Banc Denied Feb. 28, 1979.

      W. T. McNeil, Edna, for appellant.
    Wiley L. Cheatham, Dist. Atty., Cuero, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the delivery of marihuana. The punishment is imprisonment for three years.

The appellant asserts that the judgment is not supported by sufficient evidence. To support a felony conviction for the delivery of marihuana there must be proof that either remuneration was received or that more than one-fourth ounce was delivered. Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976); Gonzales v. State, 530 S.W.2d 570 (Tex.Cr.App.1975). Here it was stipulated that only .10 ounce of marihuana was delivered. So we must examine the evidence to determine whether it is sufficient to establish delivery for remuneration as alleged.

The appellant says the evidence fails to prove remuneration because he was an accommodation agent and received no remuneration for the delivery of the marihuana.

Sec. 1.02(8) of the Controlled Substances Act reads:

“ ‘[Djeliver’ 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 . . . ”

Byron Smith testified that on the night in question he was working as an undercover agent for the Department of Public Safety. While at a bar in Edna, he met the appellant, who suggested that they purchase some marihuana. Smith and appellant first drove to the apartment of an individual who appellant said had marihuana for sale, but no one was home. They then drove to appellant’s residence, where appellant had a private conversation with Michael Johnson, his co-defendant. After this conversation, appellant told Smith that Johnson had some marihuana and suggested that they go to his house. When the group arrived at the Johnson house, Johnson went inside and returned with a plastic bag containing the marihuana. Smith paid Johnson $5.00, and Johnson handed the bag to appellant. Appellant subsequently handed the bag to Smith.

Appellant, in his testimony, denied that he had first suggested a purchase of marihuana and stated that he had merely acted to accommodate Smith at no profit to himself. Whether accommodation agency may be urged as a defense to delivery of marihuana for remuneration is a question that has not been addressed by this Court. See and compare Posey v. State, 515 S.W.2d 286 (Tex.Cr.App.1974). If such a defense is available, it would not be a defense as a matter of law, but would only entitle a defendant to a jury charge. See Kemp v. State, 502 S.W.2d 726 (Tex.Cr.App.1973). We need not decide the question in this case, since it was for the trial court, as the trier of facts following appellant’s waiver of his right to a jury trial, to weigh the testimony and determine the credibility of the witnesses. Smith’s testimony was sufficient to sustain appellant’s conviction as a principal to the offense of delivery of marihuana for remuneration. See former Penal Code, Secs. 65 and 66, effective at the time of this offense on November 15, 1973. The evidence shows that the appellant was a principal in that he acted together with Johnson and, knowing his unlawful intent, aided and encouraged Johnson in the actual transfer of marihuana from Johnson to Smith. The evidence is sufficient to support the judgment of the trial court.

The judgment and sentence in this case state only that appellant was convicted of delivery of marihuana. The judgment and sentence are ordered reformed to reflect that appellant was convicted of delivery of marihuana for remuneration as charged in the first count of the indictment. See Art. 44.24, V.A.C.C.P. As reformed, the judgment is affirmed.

PHILLIPS, Judge,

dissenting.

The relevant portion of the indictment in the instant cause reads as follows:

“. . . knowingly and intentionally deliver[ed] to Byron Smith a usable quantity of marihuana of more than one-fourth ounce, and did then and there receive remuneration for same.”

The Controlled Substances Act (Article 4476-15, V.A.C.S.) makes delivery of marihuana a felony offense if either (1) the amount delivered is greater than one fourth of an ounce regardless of whether remuneration is involved or (2) any amount of marihuana is delivered for remuneration. Id., Section 4.05(d), (f).

The majority makes no mention of the allegation in this case, but discussed the matter in an original draft in terms of conjunctive pleadings. That is, if an offense could be committed by several means, all or some of those means could be alleged conjunctively in one count and the conviction would be sustained if the evidence supported any single alleged means of commission. See Sidney v. State, 560 S.W.2d 679; Garcia v. State, 537 S.W.2d 930; and Jurek v. State, 522 S.W.2d 934. Is this indictment a “conjunctive” pleading? I believe so. See 30 Tex.Jur.2d, Indictment and Information, Section 42, Page 610, and cases there cited. However, although a conjunctive pleading in the sense that it utilizes the word “and,” there remains a fatal variance between what is alleged and the proof. The evidence does show appellant’s involvement in the delivery of marihuana for remuneration as a principal. However, the second alleged means for committing the felony of marihuana delivery herein refers expressly to the first alleged means when it alleges the remuneration was received for the “same.” Thus, there is an express reference to the precisely described substance and amount, i. e., “a usable quantity of marihuana of more than one-fourth ounce, . ” This express incorporation by reference binds the State to proving its allegations in every alleged detail. As the majority states, the stipulated evidence shows only .10 of an ounce was delivered. Moore v. State, 531 S.W.2d 140; Butler v. State, 429 S.W.2d 497; Seiffert v. State, 501 S.W.2d 124; Sidney v. State, supra (Onion, P. J., dissenting opinion); Rowland v. State, 523 S.W.2d 676; Weaver v. State, 551 S.W.2d 419.

Since there exists a fatal variance between the allegata et probata, the evidence is insufficient and the conviction should be reversed and reformed to show an acquittal. See Burks v. U. S., 437 U.S. 1, 98 S.W.2d 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

For the foregoing reasons, I respectfully dissent.


text:
    Ex parte Alberto YBARRA.
    No. 59505.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 20, 1978.
    Rehearing En Banc Denied Feb. 28, 1979.
    Julio A. Garcia, Laredo, for appellant.
    Charles R. Borchers, Dist. Atty., Sharon S. Trigo, Alonzo Z. Laurel, Jr. and Olivero E. Canales, Asst. Dist. Attys., Laredo, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

This is an appeal from a denial of relief by the County Court at Law of Webb County to petitioner’s application for writ of habeas corpus contending that the statute under which he is being prosecuted is unconstitutional as applied to him.

Appellant was arrested and charged with being a party to the operation of a motor vehicle over the public highways of the State of Texas, within the county of Webb, while engaged in the business of transporting persons for compensation or hire without first obtaining a certificate of public convenience and necessity from the Texas Railroad Commission, in violation of Article 911a, V.A.C.S. After a hearing, the trial court refused to grant petitioner relief.

It is the petitioner’s contention that because prior acts of the legislature attempting to regulate persons engaged in the business of being a “travel bureau” have been declared unconstitutional, see Ex parte Martin, 127 Tex.Cr.R. 25, 74 S.W.2d 1017 (1934); Ex parte Talkington, 132 Tex.Cr.R. 361, 104 S.W.2d 495 (1937), the present act in question is unconstitutional because the petitioner is in the business of operating a travel bureau.

The petitioner’s testimony raised the issue that he had operated a travel bureau in the city of Laredo for some four years under the name of Ybarra Brothers where people wanting to go to San Antonio could walk in, and he would put them in touch with people driving to San Antonio. It was his testimony that he did not enter into the negotiations for price of those services or control the terms of the contract between the passenger and the driver. Petitioner contended that he merely brought the two into contact with each other and received $1.75 per person as a commission for his services. He further testified that he did not know Aurelio Espinoza Saucedo, the driver who he was charged with aiding and abetting to operate a motor vehicle over the public highways while engaged in the business of transporting persons for compensation or hire, without obtaining a certificate of public convenience and necessity from the Railroad Commission.

On cross-examination it was established that a sign at petitioner’s office advertised “trips to San Antonio,” that petitioner did not personally solicit drivers for these trips, but sometimes they were the same drivers who had driven before. It was also established that cars left for San Antonio from the area of appellant’s office every three or four hours and that he understood that the charge was $7 or $8 for each passenger. Appellant also required the drivers to show a chauffeur’s license, ask if they had liability insurance, and knew that they carried fire extinguishers in their vehicles. The drivers often used vans or stationwagons to transport passengers.

The State presented evidence that on May 20,1977 Laura Pruneda went to appellant’s place of business and found an office “like a bus stop.” When she said she wanted to go to San Antonio an employee at the office told her to go outside. There she found a van waiting for passengers and found that the vehicle could not leave for San Antonio until it had a full load. There were a couple of people waiting on the inside of the office. The driver of the van kept going in and out of appellant’s office. This witness paid the driver $5 for the trip, and when the van left there were 10 passengers in it. After leaving the office they stopped and picked up another passenger. This vehicle was stopped at the border patrol checkpoint on Interstate Highway 35 near Laredo. Officer Dracoulis of the Department of Public Safety testified that he participated in the investigation of the vehicle which was carrying Mrs. Pruneda when it was stopped. It was driven by Aurelio Espinoza. The vehicle was subsequently determined to be registered to Quick Auto Sales, Charles A. Ibarra, agent. Appellant had previously testified that his son, Carlos Ybarra had a used car lot in San Antonio by the name of Quick Auto Sales.

Officer Dracoulis also testified that he called appellant’s office, and the phone was answered with the announcement “Trips to San Antonio and Chicago.” He determined also that the frequency of the departures was “every hour on the hour.” Officer Dracoulis and Mike Greer, an auto theft investigator, went to appellant’s place of business and took pictures of a sign on the front of the building advertising trips to Dallas, Houston and Chicago.

Border Patrolman Mendes testified that on April 6, 1977, while working the checkpoint on Interstate Highway 35 near Laredo he stopped three Ybarra Brothers travel vehicles within an eight hour period. One of the vehicles was a van with the same registration as the van which was stopped on May 20. There were 13 persons in the vehicle, and it was driven by a Mr. De La Garza.

The trial court made findings of fact that appellant had been engaged in the business of soliciting for compensation and hire fares and trips of the paying public from Laredo to San Antonio, and that he did not have a certificate of public convenience and necessity from the Texas Railroad Commission as required by Article 911a, V.A.C.S. Such findings of fact are supported by the record in this cause.

Section 1(c) of Article 911a, defines motor bus company as meaning every person “owning, controlling, operating or managing any motor propelled passenger vehicle not usually operated on or over rails, and engaged in the business of transporting persons for compensation or hire over the public highways within the State of Texas, whether operating over fixed routes or fixed schedules, or otherwise.” Section 2 declares that all motor bus companies as defined in the Act are common carriers and subject to regulation by the State of Texas. It prohibits their operation except in accordance with the provisions of the Act.

The right to operate motor buses has been held to be purely permissive. See Railroad Commission v. Metro Bus Lines, 144 Tex. 420, 191 S.W.2d 10 (1945); Railroad Commission v. Interstate Motor Freight Line, 77 S.W.2d 1100 (Tex.Civ.App.—Waco 1935, no writ); Railroad Commission v. Shupee, 57 S.W.2d 295 (Tex.Civ.App.—Austin 1933, no writ); affirmed at Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.2d 505 (Tex.1934); Texas Motor Coaches v. Railroad Commission, 41 S.W.2d 1074 (Tex.Civ.App.—Austin 1931, no writ). It would appear that it is a legitimate exercise of the legislative authority to regulate the operation of motor vehicles using the highways of the State of Texas for profit. See All American Bus Lines v. Hawkins, 188 S.W.2d 992 (Tex.Civ.App.1945); Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294 (Tex.Cr.App.1932).

It does not appear that the appellant in this cause takes issue with the constitutionality of this Act, as applied to persons owning, operating or managing passenger vehicles, but merely contends that it is unconstitutional as applied to him because he merely operates a travel bureau and has nothing to do with the operation of the motor vehicles which transport the passengers from Laredo to San Antonio. In bringing this criminal action it is the State’s contention that the operation of a “travel bureau” by appellant is merely a sham, and that he in fact was a party to the transportation of passengers for hire on the public highways of this State. The findings of the trial court were to the effect that appellant did more than merely act as a travel bureau, and these findings are supported by the record. This Court will not permit the determination of the sufficiency of the evidence to sustain a conviction under this Act by means of habeas corpus, and we do not rule upon whether or not this evidence shows that appellant is guilty as charged. However, the authorities upon which the appellant relies are inapplicable because the evidence does not support appellant’s contention that he merely acted as a travel bureau.

We hold, therefore, that under the facts of this case Article 911a, V.A.C.S. is not unconstitutional as applied to appellant. The trial court properly denied relief to appellant upon his application for writ of habeas corpus.

The judgment of the trial court is affirmed.


author: DALLY, Judge. DOUGLAS, Judge,

text:
    Willie Earl MATHIS, Appellant, v. The STATE of Texas, Appellee.
    No. 53463.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 10, 1979.

      Art Brender, Fort Worth (Court-appointed), for appellant.
    Tim Curry, Dist. Atty., Marvin L. Collins and Howard A. Borg, Asst. Dist. Attys., Fort Worth, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of murder; the punishment is imprisonment for life.

In two grounds of error the appellant complains that his voir dire examination of the jury was restricted to the extent that he could not intelligently exercise his right to make peremptory challenges. He argues that the court erred in not permitting him to ascertain the prospective juror’s attitudes and feelings about assessing a minimum punishment of five years’ imprisonment for the offense of murder and in not permitting him to ascertain the prospective juror’s attitudes and feelings for granting or denying probation to a defendant after his conviction for the offense of murder. We conclude after considering the record that appellant’s counsel was not allowed sufficient latitude in voir dire examination. The matters complained of require that the judgment be reversed.

The right to be represented by counsel, guaranteed by Article 1, Section 10 of the Texas Constitution, encompasses the right of counsel to question the members of the jury panel in order to intelligently exercise his peremptory challenges. Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959); DeLaRosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967); Burkett v. State, 516 S.W.2d 147 (Tex.Cr.App.1974); Hernandez v. State, 508 S.W.2d 853 (Tex.Cr.App.1974); Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975). The trial court, in its sound discretion, can and should control the voir dire examination of the venire; however, the permissible areas of questioning the panel in order to exercise peremptory challenges are broad and cannot be unnecessarily limited. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974).

Bias against the range of punishment is a proper area of inquiry for both challenges for cause and peremptory challenges. When the contention is that the trial court erred in denying a challenge for cause, no reversible error is shown unless the defendant exhausted his peremptory challenges and one or more objectionable juror sat on the jury. However, when the question is asked for the purpose of exercising peremptory challenges, the test for injury is entirely different. If the question is proper, an answer denied prevents intelligent use of the peremptory challenge and harm is shown. Smith v. State, supra. As was stated in Mathis v. State, supra, . . it is immaterial how the jurors would have answered the question, for, whatever their answers, the appellant was entitled to know their answers in order to enable him to exercise his peremptory challenges.”

In Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267 (1926), it was held to be reversible error to refuse the request to interrogate the jurors individually as to their views concerning the suspended sentence law and whether they objected to giving application thereto in a proper case. The Court said:

“[T]he right to appear by counsel carries with it the right of counsel to interrogate each juror individually, to the end that he may form his own conclusions after this personal contact with the juror as to whether, in the counsel’s judgment, he would be acceptable to him, or whether on the other hand he should exercise a peremptory challenge to keep him off the jury.”

In the instant case the court first qualified the jury panel as a whole concerning general areas of the law. The court explained the range of punishment and the probation law as it applied to this case. The court asked the panel whether there was anyone who could not consider probation in a murder case. No prospective juror stated to the court that he or she could not fairly consider probation. Thereafter the prosecutor questioned the panel and individual jurors concerning the range of punishment and the law of probation. At that time one juror stated to the court and the prosecutor that if the appellant was found guilty of murder he could not consider probation as a form of punishment. This prospective juror was excused upon the appellant’s challenge for cause. When the appellant’s attorney questioned the panel concerning the range of punishment and the probation law two more jurors expressed reservations about probation. Appellant’s complaints concern the following ruling by the trial court during the voir dire examination:

“MR. BLANKENSHIP: Mr. Acuff, our Law provides and we anticipate the Court will instruct you that the minimum penalty for a Robbery case or a Murder case in this State is five years confinement in the Texas Department of Corrections.
H* * *
“What I am asking you and this panel as a whole is: Can you imagine a fact-type case where there was a robbery and a person was killed in that robbery allegedly where you could give fair consideration for the minimum penalty of five years?
“In other words, do you feel that five years is too little and you could not in good conscience vote for five years?
“MR. ACUFF: If the man was guilty, is what you’re saying?
“MR. BLANKENSHIP: Yes.
“MR. STRICKLAND: Your Honor, before the venireman answers, we would have an objection. This calls for the Jur- or to engage in speculation. I think the proper question is: Whether or not they could give fair consideration to the entire range of punishment and not sit here and imagine specific fact situations.
“THE COURT: I’ll sustain the objection. It’s hypothetical and I’ll sustain the objection.
“MR. BLANKENSHIP: Well, let me put it this way: Mr. Acuff, and ladies and gentlemen of the panel as a whole, is there anybody on this panel that has strong feelings against any Law that provides for a minimum penalty of five years’ confinement in the penitentiary for Murder?
“Let’s just say Murder, for instance — Is there anybody on the panel that has strong feelings against that minimum penalty of five years?
“MR. STRICKLAND: We would again object, Your Honor. It’s not a question of whether or not they have feelings for or against.
“The question is whether or not they could follow the Law.
“THE COURT: Yeah, I will ask the question. Is there anybody on the panel who couldn’t follow that Law and consider the full range of punishment; that is, life or any term between five and ninety-nine years depending on what the facts are in the case?
“He’s not asking you — He can’t ask you about this case because you haven’t heard the facts.
“Anybody have such a prejudice against that range of punishment that they couldn’t consider the full range of punishment in a proper case?
“Okay.
“MR. BLANKENSHIP: Of course, I object to the Court’s Ruling because the question that I asked, I felt, was a proper question and if such — so designed that it would enable me to gain information by voir dire examination which is the whole purpose of this situation here so that I can intelligently exercise peremptory challenges.
“And unless the witness is permitted to answer that question that I asked him— unless the prospective Juror is permitted to answer that question that I have asked, I object to the Court’s Ruling and the effect to the Court’s Ruling — I deem it so that the Court may take harsh — punitive action against me if I try to elicit this information from this prospective Juror and such Ruling of the Court is an undue restraint upon the Defendant’s right to effective assistance of Counsel at each and every stage of the proceedings.
“THE COURT: Well, I have already Ruled. If I was wrong, I was wrong. The Ruling has already been made.
“MR. BLANKENSHIP: All right.
“Now, I know there is one lady back there — number forty-seven, that probably feels that under no circumstances vote for probation.
“MR. BENNETT: Your Honor, I’m going to object.
“MR. BLANKENSHIP: In a Murder-type case.
“MR. BENNETT: Your Honor, I’m going to object to him voir diring and questioning a prospective Juror that we in all likelihood will not reach.
“THE COURT: I’ll sustain the objection. We can’t get back to forty-seven.
“MR. BLANKENSHIP: Well, I wasn’t directing this at her. I was just predicating it for the whole panel.
“I wanted to ask the whole panel: Is there anybody else that feels right now, having heard other people express this strong feeling that you may be prompted to let the cat out of the bag, so to speak— some people sometimes express their true feelings when they see whether or not anybody else has got the courage to speak up.
“Now, is there anybody on this panel here that hasn’t before announced any feelings they may have against recommended probation in a case of Murder or Robbery — Aggravated Robbery, Armed Robbery?
“MR. BENNETT: Your Honor, I’m going to object to the form of the question. It’s not whether they are going to recommend it in this case or any Robbery case.
“It’s whether they are going to fairly consider it.
“THE COURT: I’ll sustain the objection. It’s a question of whether you will fairly consider it.
“MR. BLANKENSHIP: That is not what I was asking. I asked if there was anybody here that has got some strong feelings against it and that is what I want to know by this voir dire examination so that I can exercise my peremptory challenges with some degree of intelligence.
“I would like to ask that question and have these people answer it.
“THE COURT: Ask your question again.
“MR. BLANKENSHIP: Is there anybody on this panel now that have some strong feelings against recommending probation as a form of punishment in— first of all, a Murder case?
“MR. BENNETT: Your Honor, I’m going to make the same objection.
“THE COURT: Okay, I’ll sustain the objection. It’s not a matter of whether you have strong feelings. It’s whether you can fairly consider it, ladies and gentlemen, and you have to be able to consider the full range of punishment including probation.
“MR. BLANKENSHIP: I want to object to the effect of the Court’s Ruling.
“THE COURT: I’ll sustain the objection.
“MR. BLANKENSHIP: It’s denying me the opportunity by propounding questions on voir dire examination here to elicit from these people whether or not they’ve got strong feelings against it and I’m entitled to know more than whether they pay lip service to it, Judge.
“THE COURT: I have already Ruled.
“MR. BLANKENSHIP: I except the Court’s Ruling.”

Appellant’s attorney should have been allowed to question the prospective jurors concerning their feelings about the range of punishment and probation so that he could intelligently exercise his peremptory challenges. The trial court’s refusal to allow such questioning deprived the appellant of a valuable right and was an abuse of discretion. Plair v. State, supra; Hernandez v. State, supra; Abron v. State, supra.

On appeal the State’s principal argument is that the appellant’s counsel’s questions were repetitive of those propounded by the court and prosecutor. We are not favorably impressed with this argument. So long as the method of jury selection long used in this State prevails — as opposed to practice in federal court — defense counsel may not be precluded from the traditional voir dire examination because the questions asked are repetitious of those asked by the court and prosecutor.

We do not necessarily hold that the precise questions used by defense counsel in this case must be permitted in all cases, but we are holding that the defense counsel must have a fair opportunity to interrogate the prospective jurors so that he may intelligently exercise his right to peremptorily challenge some of them.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority incorrectly holds that appellant’s counsel was not allowed sufficient latitude during voir dire examination. Specifically, appellant’s conviction is reversed because of the court’s refusal to allow counsel to question a prospective juror concerning (1) his attitude toward assessing the minimum punishment of five years for the offense of murder, and (2) his attitude toward the granting or denying of probation to a defendant convicted of murder.

The majority correctly recognizes that the conduct of voir dire examination must rest within the sound discretion of the court. Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Hernandez v. State, 506 S.W.2d 884 (Tex.Cr.App.1974); Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972); Pena v. State, 114 Tex.Cr.R. 29, 29 S.W.2d 785 (1930), and that only abuse of such discretion will call for correction on appeal. Battie v. State, 551 S.W.2d 401 (Tex.Cr.App.1977); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Kincaid v. State, 103 Tex.Cr.R. 485, 281 S.W. 855 (Tex.Cr.App.1926). Inherent in the trial court’s discretion over the scope and course of voir dire is his ability to (1) place reasonable time limits on the examination, (2) disallow questions which are improper, and (3) prevent the propounding of vexatious or repetitious questions. Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975). In placing limitations upon counsel’s examination, the court in this case merely exercised those functions which were well within its judicial discretion; that discretion was not abused.

More than three hours were devoted to the voir dire examination — a considerable length of time in light of the fact that only eight hours were required for the introduction of the evidence and the arguments. Counsel was admonished by the court for wasting time. This Court has held that the amount of time expended by counsel on voir dire is to be considered in determining whether there has been an abuse of discretion. Battie v. State, supra. If the court in this case wished to avoid the propounding of unnecessary questions and the delay attendant thereto, it was within his discretion to do so.

The questions propounded by appellant’s counsel were improper. Regarding the minimum applicable punishment, venireman Acuff was asked:

“What I am asking you and this panel as a whole is: Can you imagine a fact-type case where there was a robbery and a person was killed in that robbery allegedly where you could give fair consideration for the minimum penalty of five years?”

Counsel’s question required that the venireman conjure up a hypothetical fact situation and speculate as to what his decision might be under such imaginary circumstances. It bore no relevance to the issue of whether or not venireman Acuff was capable of giving fair consideration to the entire range of punishment in a proper case.

Counsel proceeded to question Acuff:

“In other words, do you feel that five years is too little and you could not in good conscience vote for five years?”

In Williams v. State, 481 S.W.2d 119 (Tex.Cr.App.1972), defense counsel asked members of the venire whether they could assess a five-year penalty under a given factual situation. The question was held to be improper. In Smith v. State, supra, defense counsel attempted to question twelve members of the jury panel as to whether they might grant a two-year probated sentence for murder with malice, given a “proper case where the facts warranted it and circumstances justified it.” The trial court refused to allow the question thus framed and proceeded to qualify the venire himself on the range of punishment. No error was shown.

Appellant’s counsel further questioned the venire:

“Now, is there anybody on this panel here that hasn’t before announced any feelings they may have against recommended probation in a case of murder, or robbery — aggravated robbery, armed robbery?”

The question was intended to elicit from the panelists whether they would refuse to recommend probation in advance of their selection. It was improper. Smith v. State, supra.

Decisions as to the propriety of any question must be left to the discretion of the trial court. Such discretion is abused only when a properly framed question concerning a proper area of inquiry is prohibited. Smith v. State, supra. Inasmuch as appellant’s question was improper, its denial by the court did not constitute an abuse of discretion.

This Court has previously ruled on the test to be utilized in determining whether the trial court has erroneously denied the asking of a question sought to permit an intelligent exercise of the accused’s peremptory challenges. Following the State’s objection to appellant’s question concerning the minimum punishment, the court qualified the panel on the same subject:

“Yeah, I will ask the question. Is there anybody on the panel who couldn’t follow that law and consider the full range of punishment; that is, life or any term between five and ninety-nine years depending on what the facts are in the case?
“He’s not asking you — he can’t ask you about this case because you haven’t heard the facts.
“Anybody have such a prejudice against that range of punishment that they couldn’t consider the full range of punishment in a proper case?”

The State is correct in its contention that appellant’s counsel had the benefit of knowing the panel’s response to the question he sought to ask. He was not deprived of any information necessary to the intelligent exercise of his peremptory challenge. In Smith v. State, supra, the specificity of the court’s examination of the venire on the range of punishment and the similarity of its question to that which counsel sought to ask led this Court to the conclusion that no abuse of discretion occurred. In Smith, we stated that there is no error in prohibiting duplicitous questions where investigation into possibly proper or fruitful matters is not entirely prevented. In the present case the court correctly propounded the same question which counsel failed to properly frame. At no time did it restrict counsel’s examination in legitimate fields of inquiry.

By its holding, the majority makes unjustified inroads into the authority of the court to conduct voir dire. As this Court observed in Battie v. State, supra, the trial judge must be vested with some discretion lest voir dire examination get completely out of control. See also, Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816 (1957).

We should look to all of the examination of the prospective jurors to determine if an abuse of discretion has been shown. We should not reverse a conviction for the failure to permit a particular question where the same general matter has been covered in other questions. If we reverse for refusal to permit the asking of a particular question and these are increased as cases are handed down, then counsel will have an automatic right to ask each particular question. If not the case can be reversed on appeal. After these cases grow in number, the questioning of the prospective jurors can become unlimited.

One of the worst features of the jury system is the permission of the uncontrolled voir dire examination of prospective jurors. This wastes the time of the courts and people called to serve as jurors. This Court should not encourage this.

If voir dire is not to last for weeks or even months in some cases, the discretion exercised by the trial court should not be abridged in the absence of a clear showing of abuse.

No error is shown. The judgment should be affirmed.

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


author: DOUGLAS, Judge.

text:
    Jimmy CRUZ, Appellant, v. The STATE of Texas, Appellee. Jorge Louis MORALES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54873, 54874.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 17, 1979.
    Rehearing En Banc Denied Feb. 28, 1979 for Docket # 54873.

      Ted Potter, Belton, for appellants.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
   OPINION

DOUGLAS, Judge.

Appellants entered pleas of guilty before the court to the offense of aggravated robbery. Punishment for each was assessed at eight years.

The appellants contend that there was no proof that a three and one-half to four-inch blade pocket knife used to cut a woman in the throat and in the chest and on the hand during a robbery was capable of producing death or serious bodily injury.

The evidence shows that both appellants, who had been drinking liquor and using marihuana, went into a U-Tot-Em Store, took a knife with a three and one-half to four-inch blade and demanded the money from the operator, Katie Allen. Cruz had his left arm around her neck and kept saying, “Let me have it.” She testified that she was afraid that they were going to kill her. He cut her in the neck and the chest and on her hand with the knife. The cash drawer was open and she told him to take the money. They took the cash from the register. When asked on cross-examination if it was a scratch, she testified that it was not a scratch, but that the knife went in and out. The wounds shown in the photographs appear to have been made by stabbing. The knife was capable of inflicting serious bodily injury or death, especially when she sustained cuts in the neck and in the chest. It was, therefore, a deadly weapon under V.T.C.A., Penal Code, Section 1.07(a)(ll), which provides that a deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."

Recently, in Denham v. State, 574 S.W.2d 129 (1978), this Court overruled Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977), and Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978), in part. In the Denham case, the Court held that there did not have to be wounds before a knife can be determined to be a deadly weapon. It also held that wounds may be considered in determining if a knife is a deadly weapon. In that case the prosecuting witness in an aggravated assault case testified that he thought the knife was a deadly weapon.

The Court wrote:

“ . . . Surely one who observes and receives a wound from a butcher knife is capable of testifying that the knife is a deadly weapon capable of causing death or serious bodily injury. We decline to hold that further testimony is needed to justify the jury in finding such knife to be a deadly weapon. This is common knowledge that any lay witness is competent to testify to.
“In the case of Acosta v. State, 179 S.W. 870 (Tex.Cr.App.1915), this Court held:
“ ‘Appellant contends that a razor is not per se a deadly weapon. We are inclined to believe that all mankind know that death can be inflicted by a razor in the hands of a grown man.’ ”

In Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978), there was injury to a victim that required him to be hospitalized for an operation. This Court wrote:

“In the instant case while there was no medical testimony as to the nature of the wounds, and while the knife taken from appellant’s possession was not introduced into evidence, we conclude the evidence sufficient to show the knife used to be a deadly weapon. The manner in which the knife was used and the wound inflicted were sufficient to bring the knife within the definition of the deadly weapon.”

In the Denham case the complaining witness testified that the knife was a deadly weapon. The witness in the present case knew just like any layman knows that stab wounds to the neck and chest can be deadly or cause serious bodily injury. She testified she thought that they would kill her.

This is a robbery case, not a case involving an assault to murder. Both appellants pled guilty to the offense of robbery by use of a deadly weapon. The appellant’s intended for the woman in the store to believe that the knife was capable of producing serious bodily injury or death to obtain the money. The statute provides that a weapon is deadly if it is “capable of causing death or serious bodily injury.” We hold that the evidence was a sufficient to show under the statute that the knife was such a weapon.

The judgments are affirmed.

ROBERTS and CLINTON, JJ., concur in the result.