author: ROBERTS, Judge.

text:
    Joaquin H. RIOS, Appellant, v. The STATE of Texas, Appellee.
    No. 53328.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.
    Appellant’s Motion for Rehearing Denied Nov. 9, 1977.

      C. Nick Rothe Jr., San Antonio, for appellant; Antonio G. Cantu, San Antonio, of counsel.
    Ted Butler, Dist. Atty., Keith W. Burris and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for delivery of a controlled substance. The jury found that appellant had two prior felony convictions, and the court accordingly assessed his punishment at life in the Texas Department of Corrections.

The appellant contends that the trial judge erred by (1) permitting the details of an offense and extraneous offenses to be introduced during the penalty stage; (2) overruling his plea of former jeopardy; (3) allowing evidence of a prior conviction against one George De La Garza to be introduced against the appellant; and (4) allowing evidence of an extraneous offense to be introduced over objection. We affirm.

The testimony reflects that on March 25, 1974, Melvin Lee Jackson, a paid government informer, went to the office of the Federal Drug Enforcement Administration (DEA) in San Antonio. Based on information supplied by Jackson, Henry Brown, a detective with the San Antonio Police Department assigned to the DEA, drove with Jackson to the vicinity of Chestnut and Burnet Streets in San Antonio. Jackson and Brown there met Fernando Castillo. Castillo entered the car and the three men proceeded to the 200 block of Burnet. They stopped at 219 Burnet, and Castillo left the car and entered the residence at 219 Bur-net. Jackson and Brown remained in the car. Castillo came back to the car and after a short discussion he re-entered the residence. Shortly thereafter, Castillo and the appellant left the residence and entered the car with Jackson and Brown.

Castillo introduced the appellant to Jackson and Brown. Brown and the appellant then discussed the possibility of a delivery of heroin. The appellant then discussed the possibility of a delivery of heroin. The appellant told Brown that he could provide heroin and that Brown should come back whenever he wanted to purchase heroin.

The following morning, at approximately 11:40 a. m., Brown talked with the appellant at 214 Burnet Street. They negotiated a price of $100, but the appellant told Brown the heroin would not be delivered by “his man” for an hour. Brown left and subsequently returned at approximately 1:00 p. m. At that time, the appellant told him to return in 45 minutes. At 1:45 p. m., Brown returned and the appellant gave Brown seven balloons containing a substance subsequently identified as heroin. Brown paid the appellant $100.

Officer Alfonso Alonzo, a San Antonio Police Department patrolman assigned to the DEA, testified that he and Agent Montoya of the San Antonio Police Department had Brown’s car under surveillance on March 25 and 26, 1974. His testimony corroborated the testimony of Officer Brown.

We will initially consider appellant’s second contention that the trial judge erred in overruling his plea of former jeopardy. The record reflects that on November 6, 1975, the appellant was put to trial on the merits of this case.

The testimony of that earlier trial is in this record. It reveals that during the direct examination of the first witness for the State the following occurred:

“Q Okay. How, after this statement made by Fernando Castillo, without going into the conversation, what then occurred?
“A Mr. Castillo re-entered the house at 214 Burnet, returned to the undercover vehicle accompanied by a subject introduced to me as Güero, subsequently identified as Joaquin H. Rios. And, both Mr. Castillo and Mr. Rios entered the undercover vehicle, and some discussion was held relative to the delivery of a quantity of heroin to me on that day, at that location.
“MR. ROTHE [DEFENSE COUNSEL]: Your Honor, I’m going to object to that and ask the jury to be instructed to disregard it as a direct violation of what counsel was instructed.
“THE COURT: Mr. Bailiff, take the jury.
“MR. PRYOR: Come with me, please.
“WHEREUPON, after the jury was removed from the courtroom the following proceedings were had as follows: “THE COURT: I’m curious as to why this testimony came out that way?
“MR. BURRIS [PROSECUTOR]: Your Honor, I—
“THE COURT: Why don’t we get to what we heard.
“MR. BURRIS: Well, I don’t know.
“THE COURT: You didn’t tell him that we didn’t want extraneous offenses testified to?
“MR. BURRIS: Agent Brown, what did I instruct you when I walked up to you a little while ago?
“AGENT BROWN: Well, the way I understood it, nothing was to be said relative to a narcotic buy on the 25th
“MR. BURRIS: That’s what I told you?
“AGENT BROWN: The actual narcotic transaction itself.
“MR. BURRIS: Didn’t I tell you that?
“AGENT BROWN: Yes. You did. And, I, at this point, didn’t think this was not what was, you know, wanted by the Court.
“THE COURT: You didn’t say that we discussed the narcotic buy on the 25th?
AGENT BROWN: Yes, sir. Well-okay.
“MR. ROTHE: Your Honor, if I might. My objection is—
“THE COURT: I apologize to you because I assumed he was going to say what we were going to have the next day. It was a shock to me that he was doing it just exactly the way I told the State’s attorney to tell him not to do.
“MR. ROTHE: I’ll move for a mistrial.
“THE COURT: I’ll declare a mistrial. You may return to Federal Court. (To Agent Brown)
“AGENT BROWN: Thank you, Your Honor.
“THE COURT: Do you want a mistrial?
“MR. ROTHE: Yes, sir.
“THE COURT: Okay. That will be granted.”

Prior to the trial of the instant case, the appellant filed a special plea alleging former jeopardy. See Vernon’s Ann. C.C.P., Article 27.05. The plea stated that the trial judge, when he granted appellant’s motion for mistrial, did not inquire whether the appellant personally wished to have a mistrial declared and that this failure by the trial judge precluded a second trial of the cause.

The issue, therefore, is whether the double jeopardy clause will bar retrial where a motion for mistrial has been requested by defense counsel but the trial judge has not asked the defendant whether he personally wants a mistrial.

We have not previously addressed this specific issue, although we have addressed similar contentions. In De Young v. State, 160 Tex.Cr.R. 628, 274 S.W.2d 406, 407 (1954), the defendant asserted that the trial judge erred in overruling his special plea of former jeopardy. This special plea was based on a former trial that had resulted in a mistrial. The Court there stated:

“This he [the trial judge] did in response to appellant’s written motion for mistrial, and therefore the appellant, having specifically prayed for the action of the court about which he now seeks to complain, cannot successfully raise the question of former jeopardy. This we think is so fundamental as to not require the citation of authorities.”

In De Young, however, the defendant did not raise the issue of whether the defendant’s personal consent to his counsel’s motion was required before a subsequent prosecution would be barred. See also Abbott v. State, 94 Tex.Cr.R. 31, 250 S.W. 188 (1923); Vaccaro v. United States, 360 F.2d 606 (5th Cir. 1966).

In Speights v. State, 499 S.W.2d 119 (Tex.Cr.App.1973), the trial court overruled a special plea of former jeopardy. The basis of the special plea was the entry of a mistrial in a former prosecution. The record of the case, however, reflects that although the defendant’s counsel originally requested a mistrial, the trial judge asked the defendant whether he (the defendant) personally wanted the mistrial. The defendant, over the objection of his counsel, responded that he wanted the mistrial. This Court held that the inquiry by the trial court into the circumstances surrounding the defendant’s consent and the defendant’s actual consent to the entry of the mistrial in the former case barred his claim of double jeopardy.

In Hippie v. State, 80 Tex.Cr.R. 531, 191 S.W. 1150 (1917), the jury was discharged and the case continued upon the motion of the prosecutor. The defendant’s counsel consented to this action. The defendant, however, stood mute and neither objected nor consented in person. Upon his retrial, the defendant filed a plea alleging former jeopardy. The trial court dismissed the plea. This Court held that the trial court erred in dismissing the plea of former jeopardy, that the consent of the defendant’s counsel was not binding on the defendant, and that the defendant had not waived the right to assert his plea of former jeopardy.

These cases, however, are not dispositive of the issue. In United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976) the Supreme Court stated that:

“ . . . where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprose-cution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.”

In United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, (1964) the Court stated:

“If Tateo had requested a mistrial on the basis of the judge’s comments, there would be no doubt that if he had been successful, the government would not have been barred from retrying him.” (Emphasis in original.)

Neither Tateo, supra, nor Dinitz, supra, involved a similar fact situation.

The language in Tateo and Dinitz, however, is instructive when viewed in light of our decision on rehearing in Landers v. State, 550 S.W.2d 272 (Tex.Cr.App.1977). In Landers we held that there is no constitutional right to hybrid representation. We there stated that:

“Chief Justice Burger, then Judge of the United States Court of Appeals for the District of Columbia, discussed the proper roles of the defendant and his counsel at the National Defender Conference in 1969:
‘Answering the question “who controls the progress of a case—the defendant or his counsel?” Judge Burger had an emphatic response: “The defense lawyer! ” The defendant has only three decisions to make, he pointed out. To plead guilty or not guilty; to have a jury or non-jury trial; and to take the stand or not.
‘The ideal and goal, according to Judge Burger, is to establish a system in which the assigned defense counsel will be indistinguishable from the retained defense counsel in skill, as well as manners.’ ” (Citation omitted)

Landers, therefore, is consistent with our opinion in Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1970), where we reaffirmed the rule that a defendant does not have the right to be both represented by counsel and also propound his own questions to witnesses as well as make jury arguments in his own behalf.

It necessarily follows that the defendant need not be asked by the trial judge if he personally approves of the action of his trial counsel in requesting a mistrial.

Moreover, it is entirely logical that the defendant impliedly consented to the waiver of his double jeopardy claim. In United States v. Dinitz, supra, the Supreme Court stated:

“This Court has implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right.” Id., at 609, n. 11, 96 S.Ct. at 1081. (Citations omitted)

Accord, Andrews v. State, 436 S.W.2d 546 (Tex.Cr.App.1969); Whitehead v. State, 162 Tex.Cr.R. 507, 286 S.W.2d 947 (1956). Appellant’s contention is overruled.

We will next consider appellant’s fourth contention that the trial judge erred by allowing the State to introduce testimony of an extraneous offense. Specifically, this contention focuses upon the alleged offer by the appellant to sell Officer Brown heroin on March 25, 1974.

It is a well established proposition that where an offense is one continuous transaction, or another offense is part of the case on trial or closely interwoven with the case on trial, proof of all facts relating to the transaction or other offense is proper as part of the res gestae of the offense. Spencer v. State, 466 S.W.2d 749 (Tex.Cr.App.1971); Jones v. State, 505 S.W.2d 909 (Tex.Cr.App.1974) and cases cited in 23 Tex. Jur.2d, Evidence, Section 196, p. 302.

The alleged offer to sell, if indeed it was an offer to sell, would have constituted an offense under Sec. 4.03(a) of the Controlled Substances Act. We need not decide whether the appellant committed an extraneous offense on March 25, 1974, as the appellant’s activity is res gestae of the offense. Spencer v. State, supra; Jones v. State, supra. Appellant’s contention is overruled.

Appellant’s third contention is that the trial judge erred in permitting evidence of a prior conviction against one George De La Garza to be introduced when the third enhancement paragraph alleged the same conviction against the' appellant.

The appellant’s contention, as we understand it, is that the third enhancement paragraph alleged that the appellant, in the District Court of Bexar County, Texas, in Cause No. 64423, had been convicted of the felony of theft of corporeal property over the value of $50.00, while the prison packet reflecting the felony conviction named George De La Garza, alias Joaquin Rios, as the person who was convicted of the felony.

The appellant does not complain that there is a variance between the allegations in the indictment and the proof or that the evidence is insufficient to show that he was the same person convicted of the felony theft. Rather, the appellant contests the admissibility of the evidence to establish that the appellant was the same person convicted of the felony theft.

It is well established that the State has the burden of proving that the appellant was the same person convicted of the felony theft. Elizalde v. State, 507 S.W.2d 749, 752 (Tex.Cr.App.1974). In Cain v. State, 468 S.W.2d 856, 859 (Tex.Cr.App.1971), we stated:

“This Court has approved several different means to prove the accused was the same person previously convicted. They include, but are not necessarily limited to: (1) Testimony of a witness who identifies the accused as the same person previously convicted. Garcia v. State, 135 Tex.Cr.R. 667, 122 S.W.2d 631; Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732; (2) Introduction of certified copies of the judgment and sentence and records of the Texas Department of Corrections or a county jail including fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant. Vessels v. State, Tex.Cr.App., 432 S.W.2d 108; (3) And by stipulation or judicial admission of the defendant. Brumfield v. State, [Tex.Cr.App., 445 S.W.2d 732] supra.”

Furthermore, we considered a similar contention in Garza v. State, 548 S.W.2d 55 (Tex.Cr.App.1977). There, the defendant contended that the evidence was insufficient to show that he was the same person convicted of a prior felony. As in the present case, the enhancement paragraph alleged the defendant’s name, while the prison packet indicated that a person with a different name committed the prior felony.

In Garza, we held that the evidence was sufficient to show that the defendant was the same person who was convicted of the prior felony. The difference in the name alleged in the enhancement paragraph and the prison packet was irrelevant since the State proved that the defendant and the person named in the prison packet were the same.

We therefore hold that Garza, supra, is controlling. The evidence was properly admitted and appellant’s third contention is overruled.

We now consider appellant’s first contention. The appellant contends that the trial judge erred in permitting the introduction, over objection, of details of offenses and extraneous offenses during the penalty stage of the trial. Specifically, the appellant objected to the introduction of State’s Exhibit No. 9.

State’s Exhibit No. 9 does contain reference to two extraneous offenses. However, the record reflects that these extraneous offenses were final convictions. Moreover, the pen packets of the two extraneous offenses were properly admitted in evidence at trial. Cf. Aaron v. State, 546 S.W.2d 277 (Tex.Cr.App.1976); Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973).

The jury found both enhancement paragraphs true and assessed punishment at life. Under the provisions of V.T.C.A., Penal Code, Section 12.42(d), the mandatory sentence was life. We cannot perceive how the appellant could have been prejudiced. The error, if any, was therefore harmless beyond a reasonable doubt. Burton v. State, 493 S.W.2d 837 (Tex.Cr.App.1973); Morrow v. State, 500 S.W.2d 811 (Tex.Cr.App.1973). Appellant’s contention is overruled.

Finding no reversible error, we affirm the conviction.

      . V.T.C.A., Penal Code, Section 12.42(d).

      . We deal not only with the Fifth Amendment of the United States Constitution, but also with Article I, Sec. 14 of the Texas Constitution.

      . Although this writer concurred in the results of the dissent in Landers, I am bound by this Court’s holding in that case. Landers, however, is distinguishable from the present case. In Landers, we did not address the issue presented by this case. The issue here necessarily encompasses the question of the duty of the trial judge to inquire into decisions relating to tactical or strategic matters at trial. Neither the majority nor the dissent in Landers would require the trial judge to ascertain whether the defendant personally acquiesces in each and every tactical or strategic decision of his defense attorney.

      . See also United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, (1971), where the trial judge sua sponte ordered a new trial. The Court held that the mistrial was a bar to a subsequent prosecution. Mr. Justice Burger, however, noted in his concurring opinion that “[I]f the accused had brought about the erroneous ruling we would have a different case . . . .” Id., at 488, 91 S.Ct. at 558.

      . Vernon’s Rev.Civ.St., Article 4476-15, Section 4.03(a).

      . See Vernon’s Ann. C.C.P., Article 21.07, which provides that when' a person is known by two or more names an indictment is sufficient if it states either name.

      . The sufficiency of the evidence demonstrating that the appellant was the person who was convicted of the felony theft is not challenged.

      . The appellant objected to the introduction of the prison packet.

      . In order to prove that the appellant was in fact the person convicted of the felony theft in Cause No. 64423, the State called a fingerprint expert. He testified that fingerprints taken from the appellant during the trial matched those contained in the prison packet reflecting the conviction of George De La Garza in Cause No. 64423.

      . State’s Exhibit No. 9 is comprised of the pen packet and various other papers connected with Cause No. 66913, one of the two prior felony convictions relied upon by the State for enhancement.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Donald Owen COMO, Appellant, v. The STATE of Texas, Appellee.
    No. 53637.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.

      R. Leon Pettis and Donald L. Boudreaux, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and Paul E. Ña-man, Asst. Dist. Atty., Beaumonj;, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for delivery of heroin. Punishment was assessed by the jury at fifty (50) years’ imprisonment.

Initially, appellant contends the trial court committed reversible error in refusing his “motion to shuffle prospective jurors.” The record reflects that the appellant filed such motion on February 9, 1976 and the trial judge denied the motion. A jury was then selected, but a mistrial later declared. A new jury was selected, but on February 11, 1976 another mistrial was declared. On February 23,1976 the case was again called for trial. Prior to trial the transcription of the court reporter’s notes (statement of facts) reflects that appellant renewed all his pretrial motions filed prior to the first trial and specifically called the trial judge’s attention to his “Motion to Shuffle Prospective Jurors.” The record reflects that the trial judge noted that he had ruled on this motion and that the same ruling applied. There is nothing in the record to show that the prospective jurors for the case were shuffled and redrawn.

Article 35.11, Vernon’s Ann.C.C.P., provides:

“The trial judge, upon the demand of the defendant or his attorney, or of the State’s counsel, shall cause the names of all the members of the general panel drawn or assigned as jurors in such case to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such ease, and such names shall be written, in the order drawn, on the jury list from which the jury is to be selected to try such case, and write the names as drawn upon two slips of paper and deliver one slip to the State’s counsel and the other to the defendant or his attorney.”

Under this statute a defendant or the State, upon demand, is entitled to have the jury panel assigned to his case redrawn in accordance with its provisions. Alexander v. State, 523 S.W.2d 720 (Tex.Cr.App. 1975); Woerner v. State, 523 S.W.2d 717 (Tex.Cr.App.1975); Dynes v. State, 479 S.W.2d 676 (Tex.Cr.App.1972); Gonzalez v. State, 468 S.W.2d 85 (Tex.Cr.App.1971).

It thus appears that the court erred in denying the motion to have the jury redrawn.

The State argues that the cause the appellant assigned when the original motion was filed prior to the first trial was no longer applicable prior to the third trial two weeks later. However, a defendant or the State is entitled to have the jurors redrawn under Article 35.11, supra, upon demand. Cause or reason need not be assigned. Further, it is not incumbent on a defendant to show that he suffered injury by the failure of the court to follow the statutory method. Alexander v. State, supra; Woerner v. State, supra; Fontenot v. State, 379 S.W.2d 334 (Tex.Cr.App.1964); Rhodes v. State, 171 Tex.Cr.R. 384, 350 S.W.2d 651 (1961); De Joyas v. State, 141 Tex.Cr.R. 520, 150 S.W.2d 254 (Tex.Cr.App.1941); Moore v. State, 132 Tex.Cr.R. 403, 105 S.W.2d 250 (Tex.Cr.App.1937).

The State further argues that the motion requested a redrawing or reshuffling of the jury panel for the week and not merely the jury panel for the case and that therefore the court’s action in denying the motion was not error. It is true that Article 35.11, supra, applies only to redrawing the jury panel for the case assigned to a specific court and not the entire jury panel for the week. Boatwright v. State, 472 S.W.2d 765 (Tex.Cr.App.1971); Gonzalez v. State, supra. While the motion to reshuffle the prospective jurors is not as artfully drafted as it might have been, we do not read it as requesting a redrawing of the jury panel for the week as opposed to the jury panel for the case. Further, there is nothing to show that the trial court interpreted the motion as now argued by the State and made that the basis of his ruling.

The State further calls our attention to Dynes v. State, supra, and contends it is dispositive of the case before us. In Dynes the motion to have the prospective jurors redrawn was denied. The court held that the defendant was entitled to have the prospective jurors reshuffled under Article 35.-11, supra, but then concluded:

“. . . However, since no statement of facts is included in the record, we are unable to determine whether the trial court shuffled the names of the panel assigned to his (sic) court. If the court failed to shuffle the panel once they arrived at his (sic) court, as appellant contends in his brief and by oral argument, he should have made this fact known to this court by a bill of exception or otherwise. This was not done.”

The Dynes case was affirmed.

In the instant case the transcription of the court reporter’s notes (statement of facts) is in the record before us. It reflects that appellant specifically renewed his original motion and that the trial court again denied it. There is nothing to show that the trial court changed its ruling or had the jury redrawn prior to jury selection. We conclude the instant case is sufficiently distinguished from Dynes.

Further, the viability of the Dynes requirement that although a motion to redraw the prospective jurors for the case is erroneously denied, the defendant in absence of a statement of facts, in the record, must make an additional showing by bill of exception or otherwise that the trial court did not later reshuffle the names of the panel for the case is highly questionable.

The court erred in refusing to reshuffle the jurors for the case. The judgment is reversed and the cause remanded.

      - “MOTION TO SHUFFLE

        PROSPECTIVE JURORS

      “COMES NOW, DONALD COMO, Defendant herein, by and through his undersigned attorney, and files this motion and for cause would show as follows to-wit;
      I.
      “Defendant would show that prospective jurors have been questioned in one or more cases in this court this week prior to the commencement of this case and that therefore the names of all prospective jurors should be shuffled pri- or to the commencement of this court and to prior to selection of the jury herein. . .

      . We do not understand the State to make any claim that the names of the prospective jurors for the instant case were redrawn prior to the jury selection but not reflected by the record.


text:
    Raymond G. RILES, Appellant, v. The STATE of Texas, Appellee.
    No. 54101.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.
    State’s Motion for Rehearing Denied Nov. 9, 1977.

      Calvin A. Hartmann, Houston, on appeal only, for appellant.
    Carol S.. Vance, Dist. Atty., James C. Brough and Stu Stewart, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for the offense of capital murder. See V.T. C.A., Penal Code, § 19.03. Punishment was assessed at death following the jury’s affirmative answers to certain questions. See Article 37.071, Vernon’s Ann.C.C.P.

We are met at the outset with appellant’s initial contention that the court reversibly erred in admitting evidence of extraneous offenses which occurred about forty minutes after the alleged offense.

In order to properly address appellant’s contention, a brief recitation of the facts is necessary. William Thomason testified he was the lot manager for John Henry Motors at 8506 Irvington Boulevard in Houston. On December 9,1974 about 5:30 p. m. Ozel-la Grant and Herbert Washington tried out a 1966 Mustang automobile. They were accompanied by the appellant Riles and a small child. Thomason reduced the price of the Mustang because of things the prospective buyers said were wrong with the car. Washington paid $149.00 as down payment on the sale price of $695.00, jointly purchasing it with Grant. The deceased, John Henry, was not present during the transaction.

On December 11,1974, Washington drove the Mustang onto the lot. He was accompanied by appellant Riles, who drove another vehicle, a blue Ford. Washington complained to Thomason the Mustang was not operating properly and demanded the return of his down payment. Thomason conferred with Washington and the appellant for fifteen or twenty minutes, advising that the down payment could not be refunded but that he would attempt to have the car repaired. Otherwise he advised they would have to see John Henry, the owner. Washington and appellant left in the blue Ford, but returned a short time thereafter. Henry was on the telephone, but upon finishing the conversation in the inner office, came into the outer office where Thomason explained the situation to him. Henry then told Washington he could not refund the down payment, but he would try to repair the car.

Appellant stated it was a “rip off” and demanded the down payment. Henry asked the appellant to stay out of the conversation so he could “work it out” with Washington. Appellant pushed Henry, who fell backwards. The appellant and Washington both then pulled guns. When Henry attempted to get out the office door, appellant yelled for him to “get back” in here and then shot Henry and followed Henry out of the door. Inside the office Washington hit Thomason across the mouth with his gun and knocked him against the wall. He demanded and got the papers relating to the sale of the Mustang and then took $43.00 of Thomason’s own money.

Frank Glenn, a porter at the lot, saw the appellant follow Henry out of the office after the shot was fired. He observed appellant was straddling Henry, with his gun in Henry’s face. After appellant demanded money, Henry gave him a folded roll of bills. Appellant yelled, “Come on, I’ve got the money.” Washington came out of the office and kicked at Henry but missed. The appellant kicked Henry and both men then fled in a blue Ford. It was about 11:50 a. m.

Then, over objection, Nelson Noak, division manager of Herby’s Foods at 6506 Gulf Freeway, testified that at 12:30 p. m. on December 11, 1974 appellant and Washington entered his store and asked for employment. He explained there were no openings, but appellant asked to fill out forms. When Noak stated it was useless, appellant stated it was a “stick up” and demanded money. Appellant and Washington both displayed guns and took $411.00 from Noak, $135.00 to $150.00 from Noak’s wife and a bag from Herby’s Foods containing $1,300.00. Money was also taken from one Nick Costa.

Shirley Noak’s testimony was much the same as that of her husband’s.

About 1:30 p. m. on December 11, 1974 Officers D. C. Wells and J. B. Robbins of the Criminal Intelligence Division, Houston Police Department, were on patrol in mufti when they observed the appellant and Washington in a blue Ford. They were not aware of the above described offenses. Wells noted the holes in the Ford’s rear license plates did not match, that the men in the Ford wore gloves and that the passenger Washington was “active.” As the officers followed the Ford, Washington became more active and the Ford began to speed, and a chase with speeds up to 100 miles per hour ensued.

At the intersection of South Park and Griggs appellant’s car ran a red light and collided with a truck. Appellant and Washington ran from the Ford with appellant carrying a gun and Washington carrying what appeared to be a bank bag. Appellant threw a gun to Washington as they fled, and they exchanged gunfire with the officers who were twenty-five feet away. Appellant fired three deliberate shots at the officers. Washington was wounded in the hand, dropped his bag and pistol and fell to the ground. Appellant was also wounded but escaped. A bag having Herby’s Food Market imprinted on it was found when Washington was arrested.

Earnest Boyd, Jr., who had just arrived home from work as a security guard early in the afternoon on December 11, 1974, heard his front door open. He then observed appellant in a living room chair bleeding from his right arm. The appellant displayed a pistol and demanded assistance. After a brief struggle, Boyd took appellant’s gun and subdued him. Following a trail of blood, Officer Robbins entered the Boyd house and found the appellant had been subdued.

Dr. Joseph Jachimczyk, Harris County Medical Examiner, testified that the cause of death of John Henry, the deceased, was a gunshot wound with the bullet entering the deceased’s back and proceeding into his head. Dr. Jachimczyk testified a person sustaining such a wound might not be aware of such wound until pressure from hemorrhaging built up in the brain.

Neither the appellant nor Washington testified. The only witness called by the defense was Houston Police Officer John Evans, who related that at 11:50 a. m. on December 11, 1974, while on patrol, he saw a scuffle at the John Henry Motors lot. He saw Henry fall to the ground and saw a man kick him. Someone rushed to his vehicle and told him “to catch the blue Ford” as they were “the ones.” The officer pursued the blue Ford but lost it in the noon day traffic. He was unaware at the time of what had occurred.

Under his first ground of error it is apparent from the argument that appellant is complaining of the admission of the testimony concerning the extraneous offenses involving the robberies of Nelson Noak, Shirley Noak and Nick Costa at Herby’s Foods, a wholesale company on the Gulf Freeway in Houston, which occurred some distance away and some forty minutes or so after the alleged offense of capital murder.

“The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.” Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 (1953). See also Rodriguez v. State, 486 S.W.2d 355 (Tex.Cr.App.1972); Jones v. State, 481 S.W.2d 900 (Tex.Cr.App.1972); Jones v. State, 479 S.W.2d 307 (Tex.Cr.App.1972); Chandler v. State, 417 S.W.2d 68 (Tex.Cr.App.1967); 23 Tex. Jur.2d, Evidence, § 194, p. 294.

There are, of course, exceptions to this general rule as were discussed in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), but the exceptions there discussed are not exclusive as the opinion noted. See also 23 Tex.Jur.2d, Evidence, § 195, p. 300.

In the instant case the State advised the court it intended to offer the extraneous offenses occurring at Herby’s Foods on the theory of flight. Out of the jury’s presence Houston Police Officer White testified he had learned Washington and Ozella Grant had rented an apartment on South Park Avenue in Houston on December 9th and that appellant had spent the night there before the alleged offense. Despite the location of Herby’s Foods, the State offered the argument that the appellant and Washington were fleeing to such apartment from the scene of the alleged offense but attracted the attention of Officers Wells and Robbins which resulted in their eventual arrest. They never reached the apartment in question. Officer White’s testimony was not offered before the jury, but the trial court stated it would admit evidence of the extraneous offense on the theory of flight. Later the court, at the guilt stage of the trial, gave a limiting charge on the extraneous offenses limiting the jury’s consideration of the extraneous offenses to the issue of intent.

On appeal the State urges the extraneous offenses occurring at Herby’s Foods store were admissible on the theory of flight and admissibility was further justified on the issue of intent. The State argues that in making its case of capital murder as alleged it must not only prove the intent to kill but the intent to commit robbery as the indictment alleged the murder occurred during the course of a robbery.

In Rogers v. State, 484 S.W.2d 708 (Tex.Cr.App.1972), a robbery conviction was reversed because of the admission of the extraneous robbery offense occurring a few blocks from' the robbery charged. There the court quoted from Jones v. State, 481 S.W.2d 900 (Tex.Cr.App.1972):

“True, flight is a circumstance from which an inference of guilt may be drawn. E. g. Ysasaga v. State, 444 S.W.2d 305; Crenshaw v. State, Tex.Cr. App., 389 S.W.2d 676. Still, flight should show some act or instance of running away. The fact that appellant was in Houston within a seven day period of time does not indicate flight. There must be some circumstance to show that the accused is moving out or running. E. g. Woods v. State, 480 S.W.2d 664; Israel v. State, 158 Tex.Cr.R. 574, 258 S.W.2d 82.” (Emphasis added.)

Then the Rogers opinion added:

“In the instant case, the record reflects that the extraneous offense occurred within a few blocks of the primary offense. Clearly, flight is not shown.
“We find no issue of identity, intent, or motive raised by the evidence which would permit the introduction of the extraneous offense. No defensive theory was raised by the appellant testifying in his behalf or by the presentation of testimony by any other witness. We conclude that reversible error was committed by the admission of the extraneous offense.”

In Hicks v. State, 82 Tex.Cr.R. 254, 199 S.W. 487, 488 (1917), it was pointed out that the circumstances must indicate that the flight is “so connected with the offense on trial as to render it relevant as a circumstance bearing upon his guilt.”

The State surmises from the evidence (offered in the absence of the jury) that the appellant and Washington were on their way to an apartment in Houston which had just recently been rented. Although they never reached there, the State argues they were in flight and evidence of the robberies at Herby’s Foods was admissible. The instant offense occurred in the city of Houston. The extraneous offenses occurred about 40 minutes later some blocks away but in Houston. Appellant and Washington may well have been on their way to their apartment when they were apprehended by officers in Houston. We cannot conclude under these circumstances that flight is shown so as to justify the admission of extraneous offenses on that theory. See Powers v. State, 508 S.W.2d 377 (Tex.Cr.App.1974).

The State argues though the extraneous offenses were admissible on the issue of intent. In Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.1975), it was written:

“With regard to the admissibility of the extraneous offense, it is true that a specific intent to kill can be presumed from appellant’s use of a deadly weapon, and thus intent to kill was not really in issue. Rodriguez v. State, 486 S.W.2d 355, 359 (Tex.Cr.App.1972). ...”

In the instant case, the appellant used a deadly weapon in committing the alleged offense, and thus, intent to kill was not really in issue. The State recognizes this but urges that it also had to prove the intent to rob the deceased at the time and that its evidence on this issue was equivocal, thus justifying the admission of the extraneous offenses. We cannot agree that the evidence on the issue of intent to rob was equivocal. State’s evidence showed that immediately after the appellant shot the deceased he followed the deceased out of the office door and was seen straddling the deceased, pointing a gun in his face and demanding money. As soon as the deceased gave the appellant a roll of bills, the appellant yelled to Washington “Come on, I’ve got the money.” Washington was still in the office robbing Thomason at gunpoint. The foregoing evidence was undisputed, and neither the appellant nor Washington testified. Hafti v. State, 416 S.W .2d 824 (Tex.Cr.App.1967), made clear that if the State’s testimony leaves no question as to intent or identity proof of an extraneous offense is inadmissible on the issue of intent or identity. See also Rogers v. State, supra. Thus, where the intent can be inferred from the act, extraneous offenses, are not admissible. See Albrecht v. State, supra.

In the instant case the intent to commit robbery during the course of the offense of murder was clearly inferable from the acts of the appellant.

Thus, there is no issue as to intent, identity or motive raised by the evidence which would permit the introduction of the extraneous offenses. No defensive theory was raised by the evidence. The admission of the extraneous offenses was reversible error. Rogers v. State, supra.

The judgment is reversed and the cause is remanded.


author: DAVIS, Commissioner.

text:
    Thomas Earl PARR, Appellant, v. The STATE of Texas, Appellee.
    No. 55287.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.

      Al T. Davis, Odessa, for appellant.
    John H. Green, Dist. Atty., and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for delivery of methamphetamine. The appellant entered a plea of guilty and elected to have the jury assess his punishment. Punishment, enhanced by one prior conviction, was assessed at 99 years.

In appellant’s first and second grounds of error, he claims that the court erred by not allowing him to fully explain, upon redirect examination, the underlying circumstances of his prior convictions after these circumstances relative thereto had been partially explored by the prosecutor on cross examination.

The record reflects that on February 25, 1975, the appellant pled guilty to two charges of sale of amphetamine and one charge of possession of marihuana. He was given a 5-year sentence for each charge, which sentences ran concurrently. The indictment in the present case alleged one of the sale of amphetamine convictions for enhancement purposes.

During the trial before the jury, the State introduced appellant’s “prison packet.” The packet contained copies of the judgment and sentence for each of the three prior convictions.

The appellant testified in his own behalf. During cross examination by the prosecutor, the following occurred:

“Q. You went down to the penitentiary for 5 years for sale of methamphetamine, amphetamine twice, didn’t you? In other words, you sold on two different times, didn’t you?
“A. I plead guilty to those charges, yes.
“Q. To selling to an agent, that was just sales you made to an agent and that was just on these dates. You were running in the community then when these sales were made, weren’t you?
“A. Yes, I was.
“Q. All right. And then also you went down on possession of marijuana, didn’t you, which occurred on a separate day?
“A. That is true.
“Q. All right. And you were running around here in our county selling dope, weren’t you?
“MR. DAVIS [defense counsel]: Your Honor, I believe that question could be specified.
“THE COURT: I will overrule your objection.
“Q. You were running around here in these people’s county selling dope, weren’t you?
“A. I say this—
“Q. My question was were or were you not?
“A. I was not guilty of the indictment I was charged with.
“Q. Oh, you weren’t? Why did you plead guilty then?
“A. Because I was threatened with 99 years sentence for possession of marijuana if I did not plead guilty.
“Q. Who threatened you with that?
“A. The district attorney’s office.
“Q. Did I threaten you with that sentence?
“A. The district attorney’s office.
“Q. My question is who in the district attorney’s office?
“A. I don’t remember any individual.
“Q. All right. Let’s go back to plea bargaining then. You knew—
“A. My attorney came to me and told me this. I don’t know who, Mr. Green.
“Q. So you went down for the best deal you could you get which you are trying to get these people here to do where you won’t go down for 99 years, isn’t that right? You don’t want to go down for 99, you would be down there a little while, wouldn’t you? . .” [Emphasis added.]

On redirect examination, appellant’s attorney tried to explore the matter further:

“Q. Tommy, if you didn’t actually make sales that you plead guilty to back, why did you plead guilty?
“MR. GREEN: Why he pled guilty is of no concern to this jury. The record speaks for itself, we have had hearings on this.
“MR. DAVIS: The district attorney opened this up himself, Your Honor. “THE COURT: I don’t believe at this point he can go behind that.”

At the request of appellant, the court excused the jury and appellant stated that he wanted to make a bill of exception. Upon counsel asking appellant why he entered pleas of guilty to the sales, the court admonished counsel “that all this has been gone into on the hearing outside the presence of the jury prior to the time this trial started and why he plead guilty . it is all a matter of record.” The record does reflect that appellant was asked the following questions before appellant proffered the testimony asked at pre-trial to which the court made reference:

“Q. What did you think you were going to get if you pled guilty to the possession of marijuana at that time?
“A. If I pled guilty?
“Q. Yes.
“A. Five years.
“Q. If you were tried on the marijuana?
“A. Life sentence.”

The record at pre-trial to which the court referred and which appellant makes a part of his bill by reference reflects that appellant testified that he was indigent when he was charged with the offenses, that a lawyer was appointed for him and that he told the lawyer that he was not guilty of the sale charges but that he was guilty of possession of marihuana. Appellant further related that his court-appointed counsel would not discuss anything but a plea of guilty with him and advised him that even if he beat the sale charges and went to trial on the possession of marihuana that “I was guaranteed 99 years on possession, or life.”

This Court has held the State cannot show the details of the offenses resulting in convictions offered at the punishment stage of the trial under Art. 37.07, V.A.C.C.P. Lege v. State, 501 S.W.2d 880; Mullins v. State, 492 S.W.2d 277.

Appellant contends that once the State had opened the inquiry into why the appellant pled guilty he was entitled to further explore the issue. Appellant relies on Art. 38.24, V.A.C.C.P., which provides, in pertinent part:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other

In McElroy v. State, 528 S.W.2d 831, the trial court allowed the State to introduce a prior conviction during the punishment stage of the trial, but refused to allow the defendant to show a subsequent court order setting aside the probated sentence and dismissing the indictment. This Court held it was error under Art. 38.24, supra, not to allow the defendant to prove his contention.

In Bermudez v. State, 504 S.W.2d 868, the defendant subpoenaed a records officer from the Dallas Police Department to testify about prior contacts between himself and the police. After the defendant had questioned the witness on the contents of some of the records, the court allowed all of the records to come into evidence. This Court found this to be proper under Art. 38.24, supra. See also Williams v. State, 427 S.W.2d 868.

It is well established that the evidence which is used to fully explain a matter opened up by the other party need not be ordinarily admissible. In Lucas v. State, 479 S.W.2d 314, the defendant revealed the fact that he had taken a polygraph examination and claimed the results were inconclusive. The State then proved that the defendant had in fact not passed the test. This Court held that this was proper under Art. 38.24, supra.

In Burns v. State, 556 S.W.2d 270, the defendant, in an effort to impeach a witness, cross examined the witness extensively about an extraneous offense which had occurred a week prior to the offense in question. We held that as a result of the defendant’s examination of the witness relative to the extraneous offense the State was entitled to inquire into “the whole on the same subject inquired into.”

In the instant case, after the appellant had answered the prosecutor’s questions relative to three prior convictions, the prosecutor first broached the subject of the details behind the convictions by asking, “You were running around here in our county selling dope, weren’t you?” The court overruled appellant’s objection thereto and the prosecutor then asked, “You were running around here in these people’s county selling dope, weren’t you?”

Appellant then answered that he was not guilty of the indictment and the prosecutor inquired, “Why did you plead guilty then?” and pursued such inquiry further by questioning appellant relative to the plea bargaining in such cases.

With the prosecutor having gone into the subject of appellant selling dope in the county, why appellant entered a plea of guilty, and the plea bargaining resulting in the pleas, it was error for the court to refuse to allow appellant on redirect to testify as to why he entered a plea of guilty.

We are unable to say that the error was harmless in light of the ninety-nine years punishment assessed appellant by the jury. The range of punishment under V.T.C.A. Penal Code, Sec. 12.42(c), is from 15 to 99 years, or life.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: DALLY, Commissioner.

text:
    Larry WHISENANT, Appellant, v. The STATE of Texas, Appellee.
    No. 55319.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.

      Randall L. Rouse, Amarillo, for appellant.
    Thomas A. Curtis, Dist. Atty. and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation.

On May 28,1976, appellant was convicted of the offense of burglary; punishment was assessed at imprisonment for 3 years, but the imposition of sentence was suspended and the appellant was placed on probation. Two of the conditions of probation were that the appellant commit no offense against the laws of this State and that he abstain from the use of alcohol in any form at any time. After hearing the State’s motion to revoke probation the court found that on November 17, 1976, appellant had violated a condition of probation in that he had driven a motor vehicle upon a public highway while intoxicated. The court reduced punishment from 3 to 2 years and sentence was imposed on December 28, 1976.

The appellant contends that: (1) he was deprived of the right of due process since he was not granted a preliminary hearing to determine whether there was probable cause to revoke probation; (2) he was deprived of the right of due process since the judge at the revocation hearing was the same judge who had granted probation; (3) there was a variance between the allegations of the motion to revoke and the evidence; and (4) the evidence is insufficient to support a finding that appellant violated a condition of probation.

The appellant urges that he was entitled to a preliminary hearing to determine if there was probable cause to believe that he had violated a condition of probation. He cites and relies upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

In both Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, supra, the Supreme Court of the United States considered procedures far different from those in this state. Morrissey, a parolee from the Iowa State Penitentiary, was arrested at his home. After reviewing a parole officer’s written report the Iowa Board of Parole, without granting him a hearing, recommitted Morrissey to the penitentiary. Morris-sey argued that his right to due process entitled him to a hearing. The State argued that no hearing was required.

The Supreme Court held that there had been a denial of due process and found that an alleged parole violator should be given a preliminary hearing “reasonably near” the place of his arrest and “as promptly as convenient after arrest” to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts which would constitute a violation of parole conditions. The Court said that although it would not be proper and fair for the parole officer who recommended the revocation of parole to hold the hearing, it would be proper for a “neutral and detached” parole officer to conduct the hearing, and that it was unnecessary for the hearing to be conducted by a judicial officer. The Court then said that at a later time — two months would not appear to be unreasonable — the parolee should be accorded a final hearing with the following minimum requirements of due process:

“(a) Written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking probation. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense; it is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
“We do not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.”

The preliminary hearing was required because “there is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked”; the determination of probable cause is “to warrant the parolee’s continued detention . . . ”

Scarpelli, after conviction, was placed on probation in custody of the Wisconsin Department of Public Welfare. He was later allowed to reside in Illinois, where he was accepted for supervision by the Adult Probation Department of Cook County. Scar-pelli was apprehended during the course of a burglary in Illinois. He was apprised of his constitutional rights and confessed his guilt. Probation was revoked without a hearing by the Wisconsin Department of Public Welfare, and Scarpelli was incarcerated in the state reformatory and was never afforded a hearing.

The Supreme Court held that a probationer, like a parolee, is entitled to a preliminary hearing and to a final revocation hearing under the conditions specified in Morrissey v. Brewer, supra, and that the circumstances of a particular case must be considered to determine whether the probationer is entitled to counsel at the final revocation hearing. The question raised by appellant has been answered contrary to his contention. Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973); and Grant v. State, 505 S.W.2d 259 (Tex.Cr.App.1974).

The procedure for revoking probation in this state is far different than the procedures which prompted the Supreme Court to set the minimum requirements in Morris-sey v. Brewer, supra, and Gagnon v. Scar-pelli, supra. Probation in this state is supervised by the court and not by an administrative agency. Art. 42.12, V.A.C.C.P. The proceeding to revoke probation, although not the same as a criminal trial, requires substantially all the same procedure. When probation is granted under the law of this state, the imposition of sentence is suspended. Art. 42.12, Sec. 3, V.A.C.C.P. When it is believed that a probationer has violated a condition of probation, a written motion to revoke probation is filed, and a warrant or capias is issued for the arrest of the probationer. If not released on bail after being arrested, the probationer may move for a hearing, and the motion to revoke is dismissed if not heard within twenty days thereafter. Art. 42.12, Sec. 8, V.A.C. C.P. Ex parte Trillo, 540 S.W.2d 728 (Tex. Cr.App.1976).

The motion to revoke is heard by a judge of the district court. Art. 42.12, Sec. 8, V.A.C.C.P. If the probationer is indigent, counsel is appointed to represent him. Art. 42.12,Sec. 3b, V.A.C.C.P.; Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973); Crawford v. State, 435 S.W.2d 148 (Tex.Cr. App.1968). An adversary proceeding is afforded the probationer in which almost all of the rules of evidence and criminal procedure are applicable. See Masters v. State, 545 S.W.2d 180 (Tex.Cr.App.1977); Lovorn v. State, 536 S.W.2d 356 (Tex.Cr.App.1976).

Upon request, the court should make specific findings of fact as to the basis for revocation. Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974); Gamble v. State, 484 S.W.2d 713 (Tex.Cr.App.1972). The probationer may be continued on probation, the terms of probation may be modified, or probation may be revoked. Art. 42.12,Sec. 6, Sec. 8, V.A.C.C.P. If probation is revoked, the probationer is then sentenced. The court in its discretion may reduce punishment if warranted by the circumstances when revocation of probation is ordered. Art. 42.12, Sec. 8(a), V.A.C.C.P. The accused then is afforded a review of the revocation proceeding aided by counsel, and if indigent, by appointed counsel, before the Court of Criminal Appeals. Art. 42.12,Sec. 8, V.A.C.C.P. The probationer may be released on bond pending appeal of the order revoking probation.

The procedure for revoking probation in this state affords a probationer far greater safeguards than those required by Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, supra. See also Grant v. State, 505 S.W.2d 259 (Tex.Cr.App.1974); Ex parte Shivers, supra. That appellant did not receive a preliminary hearing and that the same judge who granted probation heard the motion to revoke did not deprive the appellant of the right of due process granted by the constitutions of this State and of the United States.

Appellant also asserts that the trial court abused its discretion in not dismissing the motion to revoke because of a variance between the motion and the evidence adduced at the hearing. The variance to which appellant refers is that the motion stated that appellant had an occupational driver’s license permitting him to drive between the hours of 6:00 a.m. and 5:00 p.m., whereas conflicting evidence introduced at the hearing purported to show that appellant’s license restricted his driving hours to between 7:00 a.m. and either 9:00 a.m. or 9:00 p.m. The variance is immaterial since appellant was arrested at approximately 2:00 a.m. a time at which he was not permitted to drive.

Finally, appellant contends that the evidence is insufficient because the only evidence to support a finding that he had violated any condition of probation was the testimony of the officer who arrested him on November 17, 1976. Officer Russell Daniels testified that appellant was driving his car erratically, that he had a strong smell of alcoholic beverage on his breath, that he appeared to be sleepy, and that he spoke in a slurred tone. Daniels also testified that appellant admitted, upon being arrested, that he had been “drinking” at home. Daniels testified that he was of the opinion that appellant was intoxicated at the time of his arrest. The evidence was sufficient. McGuire v. State, 537 S.W.2d 26 (Tex.Cr.App.1976); Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.1976); Alexander v. State, 161 Tex.Cr.App. 66, 274 S.W.2d 831 (1955).

The judgment is affirmed.

Opinion approved by the Court.

      . In a probation revocation hearing, unlike a criminal proceeding, the burden of proof is by a preponderance of the evidence rather than beyond a reasonable doubt, Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1973), and unlike prosecutions for most criminal offenses in this state, the testimony of an accomplice witness is sufficient and need not be corroborated in a probation revocation hearing. Howery v. State, 528 S.W.2d 230 (Tex.Cr.App.1975).


author: GREEN, Commissioner.

text:
    Ex parte Billy Ward WRIGHT.
    No. 55397.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.
    Will Gray, Houston, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from an order entered after hearing seeking a reduction of bail pending appeal.

On April 4, 1977, appellant was convicted in the District Court of Bell County of the third degree felony of possession of a firearm by a felon. See V.T.C.A. Penal Code, Sec. 46.05. Punishment was assessed at ten years. An appeal from the conviction is pending in this Court as our No. 56,271. Upon conviction, the trial court ordered appellant held in custody without bond. A hearing was thereafter conducted by the trial court on appellant’s application to have bail set pending appeal, and after hearing, bail was set at $50,000. The record reflects that appellant has been unable to make bail in that amount, and remains in custody.

The only witness at the hearing was appellant. He testified that he owned no property, but that his parents had attempted to make an appeal bond for him, and that the “very maximum” amount they could make would be $15,000. He said that if released on bond he would have employment with his father building houses. Appellant had resided in Bell County 23 years, during which time he had been convicted in Bell County of felonies in 1961, 1963, and 1971. He had had occasion to make numerous appearance bonds and had never defaulted on any. In addition to his felony convictions in Bell County, he had been convicted of felonies in Oklahoma, including escape from prison, and in Louisiana. These sentences had been served.

Other than proof of appellant’s prior convictions and that he and his wife were separated, all by cross-examination of appellant, the State offered no evidence.

Appellant argues that, although his prior criminal record is to be considered in fixing bail,

“The evidence developed by Wright regarding his financial condition, his long residence in Bell County, interrupted on occasion, of course, by his incarceration in various penal institutions; his employment prospects; the fact that his father would post a property bond up to $15,000, and his excellent record of no prior bond forfeitures, sustained his burden of proof that bail of $50,000 was excessive and that he could not make such bail.”

In view of all the circumstances, we conclude that the amount of appeal bond as set is excessive and that a bond in the sum of $20,000 is reasonable, and appellant’s bail is set at $20,000 pending appeal. See Ex parte Salizar, Tex.Cr.App., 537 S.W.2d 252; Ex parte Clark, Tex.Cr.App., 537 S.W.2d 40.

Opinion approved by the Court.


text:
    Reynaldo Alfonso CANTU, Appellant, v. The STATE of Texas, Appellee.
    No. 55701.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.
    Rudolfo G. Davila, Victoria, for appellant.
    Ogden L. Bass, Jr., Dist. Atty. and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On December 15, 1975, appellant entered a plea of guilty before the court to the felony offense of unlawful possession or marihuana. Punishment was assessed at three years, but the imposition of sentence was suspended and appellant was placed on probation.

Among the conditions of appellant’s probation was the following: “A. Commit no offense against the laws of this State or of any other State or of the United States.” On May 11, 1976, a motion to revoke appellant’s probation was filed. The motion alleged that:

“. . . the defendant, Reynaldo Alfonso Cantu, on or about the 24th day of March, 1976, in Brazoria County, Texas, did then and there intentionally and knowingly possess a usable quantity of marihuana of more than four (4) ounces.”

On November 22, 1976, after a hearing, the court entered an order revoking appellant’s probation. The court’s order was based on its finding that appellant had been in possession of more than four ounces of marihuana on March 24, 1976.

Appellant contends that the court abused its discretion in revoking his probation because such action was based on evidence which had been illegally seized.

On March 24, 1976, Captain Gene Smith, of the Brazoria County Sheriff’s Department, filed an affidavit for search warrant with Justice of the Peace Harrold Ammons. The affidavit set forth the location of the property and described the premises sought to be searched as follows:

“A gray frame, 2 story residence surrounded by a hurricane fence and trees and cutliage (sic).”

Pursuant to the affidavit, the magistrate issued a search warrant on the same date. The warrant included the above description of the premises to be searched, and then concluded with the following words:

“You are therefore, commanded to search forthwith the premises described above and all edifices and automobiles at the premises for the property described above and seize the property if found and bring it before me in Brazoria County, Texas. .” [Emphasis added.]

The search warrant was executed on March 24, 1976. Several officers were sent to the scene. One of the officers, Lieutenant Charles Wagner of the Freeport Police Department, searched a chicken coop which was located between 100 to 125 feet from the house. In the chicken coop, Wagner found a buried garbage can which contained 29 pounds, 6 ounces of marihuana.

Wagner drew a sketch of the premises in question which reflected that the residence was surrounded by what was described as a hurricane fence and attached to this fence at the back side of the premises was what appeared to be a smaller (the drawing does not purport to be drawn to scale) fenced-in area in which the chicken coop was located. The testimony of Wagner reflects:

“Q. As I understand it, the gate connected the fence enclosing the chicken coop with the fence enclosing the house, is that correct?
“A. Yes.
“Q. What was the distance from the house to the chicken coop?
“A. A hundred to a hundred and twenty-five feet.
“Q. Was there a worn trial in the grass from the house to the coop?
“A. Yes.”

Appellant contends that the scope of the search was too broad and that any evidence found in the chicken coop should have been suppressed. The appellant filed a motion to suppress and same was heard at the hearing on the motion to revoke.

The State first seeks to sustain the search by arguing that the provision in the search warrant calling for a search of “all edifices and automobiles at the premises” authorized the search of the chicken coop. The appellant points out that the above provision goes beyond the premises which were described in the affidavit on which the warrant was issued.

In Riojas v. State, 530 S.W.2d 298, this Court held that the description of the place to be searched in the affidavit limits and controls the description in the search warrant. See also McTyre v. State, 113 Tex.Cr.R. 31, 19 S.W.2d 49; Robie v. State, 117 Tex.Cr.R. 283, 36 S.W.2d 175. To the extent that the warrant authorized a broader search than the affidavit had justified, it was invalid and cannot justify a search of premises beyond those described in the affidavit.

The record reflects that a baggie containing one ounce of marihuana was found inside the house and, in response to a question from appellant’s counsel, Officer Smith testified that he found a “controlled substance” in appellant’s bedroom in open view, “just a bunch of loose stuff . It was strewed all over the floor and in the suitcase.” Smith related that the suitcase was “laying open” and the “stuff” in it was visible. The State urges that after finding the marihuana in the house the officers were furnished with probable cause to search other outbuildings. See Long v. State, 532 S.W.2d 591. The record reflects that different officers searched the chicken coop and the house. The record does not show in what sequence the searches were conducted or whether they were simultaneous. There is nothing in the record to reflect that the marihuana was found in the house and upon the basis of this discovery that the officers proceeded to search the outbuildings.

The State also justifies the search based on the inclusion of “curtilage” in the description of the place to be searched in both the affidavit and the warrant. Resolution of this issue will turn on whether or not the chicken coop was within the curtilage of the residence to be searched.

In Worth v. State, 111 Tex.Cr.R. 288, 12 S.W.2d 582, this Court reviewed the various definitions of “curtilage” as follows:

“ ‘The inclosed space immediately surrounding a dwelling house, contained within the same inclosure. * * * It has also been defined as “a fence or inclosure of a small piece of land around a dwelling house, usually including the buildings occupied in connection with the dwelling house, the inclosure consisting either of a separate fence, or partly of a fence and partly of the exterior of buildings so within this inclosure.” ’ Bouv. Law Diet. vol. 1 (Rawle’s 3d Ed.) p. 741. Also: ‘ “Curtilage” is a yard, courtyard, or piece of ground lying around or near to a dwelling house, included within the same fence; a fence or inclosure of a small piece of land around a dwelling house, usually including the buildings used in connection with the house, which inclosure may consist wholly of a fence or partly of a fence and partly of the exteri- or side of buildings so within the inclosure.’ Words and Phrases (Second Series) vol. 1, p. 1183.”

In Worth, the searchers found various parts of a still located on the defendant’s land at distances between 100 and 400 yards from his residence. This Court found that the area involved was outside the curtilage of the residence.

Black’s Law Dictionary (Revised 4th Ed.) defines “curtilage” as: “The inclosed space of ground and buildings immediately surrounding a dwelling house.” In 25 C.J.S. p. 82, “curtilage” is defined as:

“In its most comprehensive and proper legal signification it includes all that space of ground and buildings thereon which is usually inclosed within the general fence, immediately surrounding a principal messuage, outbuildings, and yard, closely adjoining to a dwelling house . . . .”

In the instant case, the outbuilding in which the marihuana was discovered was surrounded by a fence attached to the hurricane fence surrounding the house. The hurricane fence surrounding the house appears to constitute one side of the smaller fenced-in area surrounding the chicken coop. There was testimony which reflected that it was used in “connection with the house,” Wagner testifying that “there was a worn trail in the grass from the house to the coop.” The distance between the house and the chicken coop was described as “a hundred to a hundred and twenty-five feet.”

We find the chicken coop in which the marihuana was found to be within the cur-tilage of the premises described in the search warrant and reject appellant’s contention that the marihuana found there should be suppressed.

Appellant contends that the evidence was insufficient to support a finding that appellant possessed the contraband.

In Williams v. State, Tex.Cr.App., 524 S.W.2d 705, it was stated:

“Possession of narcotics need not be exclusive and evidence which shows that the accused jointly possessed the narcotic with another is sufficient. Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; Simpson v. State, Tex.Cr.App., 486 S.W.2d 807; Valdez v. State, Tex.Cr.App., 481 S.W.2d 904; Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713; Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763. Mere presence at a place where narcotics or dangerous drugs are possessed does not in itself justify a finding of joint possession. Curtis v. State, supra; Valdez v. State, supra. The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts. Curtis v. State, supra; Hineline v. State, Tex.Cr.App., 502 S.W.2d 703; Williams v. State, Tex.Cr.App., 498 S.W.2d 340.”

Appellant points to the testimony of Officer Smith that there were “three people in the premises” and “that they appeared to be living there.” They were appellant, his wife, and one Patrick Ryan.

Rent receipts were found in the house “made out to” appellant. Probation officer Robertson testified that the only person appellant had indicated to him who lived in the house with him was his wife. Robertson stated that he knew Ryan, that he was on probation from Calhoun County, that “He was to be one of our probationers” but he had no knowledge that Ryan was living at appellant’s home. While there is evidence that a baggie containing one ounce of marihuana was found in the house, the location of same or whether it was in open view was not established. As heretofore noted, Smith testified in response to questioning by appellant’s counsel as to whether there was “any controlled substance — out in open sight” that there was, and it was found “strewed all over the floor and in the [opened] suitcase in appellant’s bedroom.”

We find the evidence sufficient to connect appellant with the offense and conclude that the court’s finding that appellant possessed more than four ounces of marihuana is supported by the evidence.

No abuse is shown in revoking appellant’s probation.

The judgment is affirmed.

Opinion approved by the Court.


text:
    John Davis TEAMER, Appellant, v. The STATE of Texas, Appellee.
    No. 55839.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.

      J. R. Musslewhite, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and R. P. Cornelius, Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction in a bench trial for forgery by passing a check [V.T.C.A., Penal Code, § 32.21(d)] with punishment being assessed at twenty (20) years, it being enhanced by virtue of a prior felony theft from person conviction alleged and proved.

Appellant initially contends the indictment is fundamentally void since it fails to allege in the primary count that he intended to defraud and harm another and fails to allege the particular person he intended to harm or defraud. The indictment against which no motion to quash was directed does allege that the appellant committed the alleged forgery “with intent to defraud and harm.” The indictment does fail to allege the particular person appellant intended to defraud or harm, but such allegation is unnecessary. Article 21.05, Vernon’s Ann.C.C.P.; Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977).

Appellant waived trial by jury and entered a guilty plea before the court, but claims on appeal the trial court erred in admonishing him by incorrectly stating the range of punishment. The court informed the appellant the range of punishment was for not “less than two or more than twenty years.” The indictment charged the primary offense of forgery by passing a check, which is a third degree felony. V.T.C.A., Penal Code, § 32.21(d). A third degree felony is punishable by confinement in the Department of Corrections for not more than ten (10) years nor less than two (2) years, and in addition, a fine not to exceed $5,000.00 may be imposed. However, the indictment alleged a prior felony theft conviction for the purpose of enhancement.

V.T.C.A., Penal Code, § 12.42(a), provides:

“(a) If it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony.”

V.T.C.A., Penal Code, § 12.33, provides that a person adjudged guilty of a second degree felony shall be confined in the Department of Corrections for not more than twenty (20) years nor less than two (2) years. In addition, a fine not to exceed $10,000.00 may be imposed.

A stipulation and a judicial confession furnished proof of the prior felony theft conviction. The court thus correctly stated the range of punishment with regard to confinement in the Department of Corrections, although there was a failure to mention the possible fine. There was no showing that appellant was unaware of the range of punishment or that he was misled or harmed by the admonishment of the court. No fine was imposed. There was a substantial compliance with Article 26.13, Vernon’s Ann.C.C.P., in effect at the time of trial on November 22, 1976. Any error under the circumstances was harmless error. It appears from the record there was a plea bargain. In addition, the record reflects the following after the State recommended twenty (20) years’ confinement as punishment:

“THE COURT: I’m willing to accept that recommendation, if it’s agreeable to the defendant and his counsel.
“MR. ROBERSON (defense counsel): It is, Your Honor.
“THE COURT: Do you agree?
“THE DEFENDANT: Yes, sir.”

Appellant’s contention is overruled.

In four grounds of error appellant urges the judgment and sentence are void because they purport to find him guilty of a misdemeanor but assess punishment within the range of a first or second degree felony.

The indictment charged forgery by passing a check as the primary offense. While the instrument is described as “a writing,” the check then is set out in full in the body of the indictment. The court expressly found the appellant guilty as charged in the first count of the indictment and that allegations as to the prior felony theft conviction were true.

The judgment and sentence describe the offense as “unlawfully, with intent to defraud and harm, intentionally and knowingly forge, by passing an instrument in writing.” Appellant seizes upon such description of the offense for which appellant was convicted to urge that it is only a Class A misdemeanor. V.T.C.A., Penal Code, § 32.-21, defines “forge” as well as “writing” and then provides:

“(c) Except as provided in Subsections (d) and (e) of this section an offense under this section is a Class A misdemeanor.”

Appellant relies upon subsection (c) in his argument, but overlooks subsection (d), which reads:

“(d) An offense under this section is a felony of the third degree if the writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check or similar sight order for payment of money, contract, release, or other commercial instrument.” (Emphasis supplied.)

While the judgment and sentence refer merely to “passing instrument in writing,” it is clear from the indictment and the proof offered and the expressed findings of the trial court that the offense was forgery by passing a check. Thus, the judgment and sentence are not void, but can be reformed from the information we have in the record before us. Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972), and cases there cited. Jiminez v. State, supra. See also Article 44.24, Vernon’s Ann.C.C.P. The judgment and sentence are thus reformed to reflect a conviction for forgery by passing with a check.

In two grounds of error the appellant contends that the enhancement paragraph of the indictment is void because it fails to specifically allege that the appellant was convicted in a court much less a district court. The enhancement paragraph in question reads:

“Before the commission of the primary offense, on February 21, 1967, in Cause No. 118134, in Harris County, Texas, the Defendant was convicted of the felony of Theft from person.”

While certainly no model for alleging pri- or convictions and while such form is not to be emulated, allegations as to prior convictions almost identical to those above were held not to be fundamentally defective in Arce v. State, 552 S.W.2d 163 (Tex.Cr.App.1977), and Prodon v. State, 555 S.W.2d 451 (Tex.Cr.App.1977). In the instant case, there was no motion to quash. We adhere to Arce and Prodon.

As reformed, the judgment is affirmed.

      . In a second enhancement paragraph, the indictment also alleged a prior conviction for unlawful possession of heroin. This allegation was abandoned and never proved.

      . See footnote # 1.


text:
    Ruben Lambert SANTELLANO, Appellant, v. The STATE of Texas, Appellee.
    No. 55878.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.
    None on appeal, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellant was indicted by a Harris County grand jury for attempted burglary in violation of Art. 1402, Vernon’s Ann.P.C. (1925). The indictment alleged that the offense was committed on or about June 2, 1973. On September 21, 1976, appellant waived trial by jury and entered a plea of guilty before the court. Appellant was convicted and punishment was assessed at imprisonment for five (5) years.

The record is before us without a transcription of the court reporter’s notes and no brief has been filed in appellant’s behalf. Although there is no affidavit of indigency in the record, it does contain appellant’s pro se motion for appointment of counsel on appeal. In this motion, appellant stated that he was indigent and could not afford to retain counsel to represent him on appeal. It does not appear that this motion was ever called to the attention of the trial court for appropriate action. Under these circumstances we would ordinarily abate the appeal; however, the record on its face shows error which requires reversal.

The indictment, which was presented and filed June 19, 1973, charges appellant with the offense of attempted burglary of a house, alleged to have been committed June 2,1973. See Art. 1402, V.A.P.C. The maximum punishment authorized for that offense was four years. The judgment and sentence both recite that appellant was convicted of attempted burglary of a habitation, with punishment being assessed at five years. See V.T.C.A. Penal Code, Sections 31.02 and 15.01, effective January 1, 1974. The indictment will not support a conviction for the offense of attempted burglary of a habitation under Sections 31.02 and 15.01 of the new Code.

Since appellant was convicted for an offense not alleged in the indictment, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      . The record does not contain any request by appellant to be punished under the provisions of the new Penal Code. (See Sec. 6(c) of the Savings Provisions of the new Code.) See Bishoff v. State, Tex.Cr.App., 531 S.W.2d 346.


text:
    Leslie William WAGONER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56258.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.
    Van Ballew, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., and Jerome L. Croston, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the unlawful possession of amphetamine, a dangerous drug. The punishment assessed is imprisonment for 2 years. The State alleged that the appellant had had a prior conviction for a like offense, possession of barbiturates. The Dangerous Drug Act, Art. 726d, V.A.P.C. 1925, in effect at the time of the alleged commission of this offense, provided that a second or subsequent violation was a felony offense punishable by imprisonment for not less than 2 nor more than 10 years.

The offense was alleged to have been committed on October 30, 1969, and the trial was on October 29, 1971. After the record was completed and the briefs were filed in the trial court, the court, on January 8, 1973, ordered that the record be promptly transmitted to the Court of Criminal Appeals. The record inexplicably was not received by nor filed with the Clerk of the Court of Criminal Appeals until September 20, 1977.

The appellant asserts that there is insufficient evidence to support the judgment. We agree and reverse the judgment.

The appellant waived a jury trial and entered a plea of not guilty before the court. The only evidence before the court was that heard by the court on the appellant’s pretrial motion to suppress evidence. The evidence elicited during the hearing on the motion to suppress was admitted by stipulation between the State and the appellant and his counsel. The State rested and closed without offering any other evidence. The State in its brief says:

“The State concedes that the prosecutor had and should have presented, or stipulated that the State would have presented, two bottles taken from defendant, which bottles were marked as containing ‘benzedrina’; the laboratory report showing that analysis of the contents of the bottles showed both contained amphetamine sulfate (trade name: benzedrine), which is a dangerous drug under Texas law; that Drs. Anderson and Mason of the Dallas City-County Criminal Investigating Laboratory were prepared to testify concerning their analysis; and the ‘prison packets’ and court records which prove that Appellant had been twice before convicted for possession of heroin and for possession of barbiturates. The prosecutor had this evidence in his file and could have, but did not, stipulate the evidence in accordance with Appellant’s Agreement to Stipulate Evidence.”

After this candid concession the State still urges:

“But there was presented at the hearing on Appellant’s Motion to Suppress Evidence sufficient evidence to support the trial judge’s finding. There was the testimony of Officer Wise that when Officer Wise and his partner approached Appellant in the cafe, identified themselves as police officers, and told Appellant that he was under arrest for violation of the dangerous drug law that Appellant immediately stood up and, facing the officers, put his hands behind his back. Further, the officers had to struggle with Appellant in the cafe and outside the cafe before they could get Appellant’s hands from behind his back and when finally opened each hand contained a bottle of tablets labeled in Spanish as ‘Benzedrina.’ Certainly Appellant’s conduct when arrested showed a consciousness of guilt and a probability, beyond a reasonable doubt, that the bottles contained the drug for which they were labeled. Although not as strong a case as the prosecutor could have made had he remembered to use all the evidence in his file still there was sufficient evidence to uphold the conviction.”

Art. 1.15, V.A.C.C.P. requires that when a plea is entered before the court it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and in no event shall a person be convicted without sufficient evidence to support the plea. There is no evidence that the tablets in the bottles found in the appellant’s possession were amphetamine, and there is no evidence to support the allegation that the appellant had a prior conviction for a like offense. Without proof of the prior conviction, the punishment for the felony offense which was assessed was unauthorized.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Mack Bernard YATES, Appellant, v. The STATE of Texas, Appellee (two cases).
    Nos. 56316, 56317.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.

      Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant waived his right to trial by jury and entered pleas of guilty to two separate indictments charging him with aggravated robbery. Punishment was assessed at five years in each case.

Although the records before us contain a transcription of the court reporter’s notes, no brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09, Section 9, V.A.C.C.P., and none has been filed in this Court. The records reflect that appellant is indigent. He was represented by court-appointed counsel at trial, and this same attorney was also appointed to represent him on appeal.

Notices of completion of the records were mailed to appellant’s counsel on May 24, 1977. No objections to the records were made and the records were approved by the trial court on June 20, 1977. Thereafter, the 30-day period of time for counsel to file a brief in the trial court in appellant’s behalf pursuant to Article 40.09, Section 9, supra, expired. Counsel made no effort to seek an extension of time in which to file a brief from this Court. See Article 40.09, Section 16, V.A.C.C.P.

On August 8, 1977, the clerk of the trial court notified the trial judge, counsel for appellant, and counsel for the State that the time in which to file a brief in appellant’s behalf had expired and that the records on appeal reflected that no pauper’s oath had been filed. This was erroneous as the records reflect that appellant is indigent and is represented by court-appointed counsel. No doubt, had the trial court not been misinformed, he would have required that a brief be filed in appellant’s behalf prior to the transmission of the records to this Court.

When the time to file a brief under Article 40.09, Section 9, has expired, there has been some misconception that trial judges no longer have authority to require counsel to file a brief. This belief is apparently held because new Article 40.09, Section 16, requires extensions of time to be sought from this Court and not the trial court, contrary to former practice. The trial court has a duty under the Texas and federal constitutions to provide an appellant with the effective assistance of counsel on appeal. This assistance, however, cannot be afforded without requiring that counsel file a brief in an appellant’s behalf.

It is settled that the Texas and United States Constitutions require that an indigent defendant is entitled to the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). And, the decision of the Supreme Court of the United States in Anders v. California, supra, requires that court-appointed counsel file a brief in appellant’s behalf. In the instant case the court-appointed counsel has failed to perform that duty.

The appeal will be abated so that appellate briefs may be filed. It will be the duty of the trial court to see that this is done under Article 40.09, V.A.C.C.P. If this is not done, the trial court has authority to punish for contempt under Article 1911a, V.A.C.S.

The court still has control over the case until the record reaches this Court. Rangel v. State, 408 S.W.2d 231 (Tex.Cr.App.1966). Even though a late brief is filed, he can grant a new trial. If the court refuses to grant a new trial after a late brief has been filed and the record is forwarded to this Court, then this Court will determine if the brief will be considered on appeal. This will give the trial court an opportunity to pass upon the grounds raised in the brief before it reaches this Court.

The appeals are abated. No motion for rehearing will be entertained.

      . That statute, effective May 25, 1977, provides:
      “Extensions of time for meeting the limits prescribed in Sections 3, 6, 9, and 10 of this Article for either the appellant or the State may be granted by the Court of Criminal Appeals or a judge of the Court for good cause shown on timely application to the Court of Criminal Appeals.”
      Pursuant thereto, Rule 13 of this Court’s rules was promulgated. Since September 1, 1977, it has provided:
      “All motions for extension of time under Article 40.09, Section 16, V.A.C.C.P., effective May 25, 1977 shall be in writing and shall be filed with the Clerk of the Court of Criminal Appeals. Each such motion shall specify: (1) the trial court where the case is pending; (2) the number and style of the case in the trial court; (3) the offense for which the appellant was convicted; (4) the punishment assessed against the appellant; (5) the present deadline for the filing of the item in question; (6) the length of time requested for the extension; (7) the number of extensions of time which have been previously granted regarding the item in question; (8) the facts relied upon to show good cause for the requested extension, and (9) when an extension of time is requested for the filing of a transcription of the court reporter’s notes, the facts relied upon to show good cause must be supported by the affidavit of the court reporter which shall include the court reporter’s estimate of the earliest date when the transcription can be completed.”