author: DAVIS, Commissioner.

text:
    Laumont HILL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52337 and 52338.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.
    Rehearing Denied Jan. 12, 1977.

      Mike Aranson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald H. Fla-nary, Jr., G. Norman Kinne and Kelly Loving, Asst. Dist. Attys., Dallas, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

In a single trial, appellant was tried under four indictments charging him with sales of heroin. While two of the indictments appear to have alleged sales on or about April 24, 1973, and May 2, 1973, the indictments in causes numbered (in the trial court) C-73-7976-J and C-73-7977-J both alleged sales on or about April 27,1973, and it is from convictions in the latter two causes that these appeals are taken. After the jury found appellant guilty, the court assessed punishment at 12 years in each of the two cases.

Narcotic agent Braswell testified that he purchased two papers of heroin from appellant on April 24 for $100.00. At “approximately 11:05 to 11:10 A.M.” on April 27 the agent purchased one paper of heroin from appellant for $50.00 and that afternoon, “at approximately 2:50 P.M.,” Braswell testified he purchased four papers of heroin and some cocaine from appellant for two hundred fifty dollars. The testimony of the agent further reflected a purchase of two papers of heroin for $100.00 on the afternoon of May 2, 1973.

In the two grounds of error advanced by appellant, it is urged (1) “the trial court erred in denying appellant’s motion to quash,” and (2) “the trial court erred in allowing the State’s attorney to arbitrarily choose which sale related to which cause.”

The indictments in the two causes are identical, alleging in pertinent part that appellant,

. . on or about the 27th day of April in the year of our Lord One Thousand Nine Hundred and 73 in the County and State aforesaid, did then and there unlawfully sell a narcotic drug, to wit: Heroin to Troy Braswell .

In his motion to quash, appellant urged (1) the indictment did not allege an offense with sufficient particularity for him to prepare a defense and (2) to require appellant to proceed to trial under the two indictments would deny him the defense of jeopardy.

Appellant does not challenge the sufficiency of the indictment to charge an offense. The thrust of his argument appears to be that the indictments were “. clearly insufficient to inform the appellant of what ‘cause’ or facts differentiated C-73-7976-J from C-73-7977-J.”

An indictment, to be sufficient, must give the day, month, and year of the commission of the offense. Hess v. State, 528 S.W.2d 842, Tex.Cr.App. Both indictments alleged that the offenses occurred “on or about” April 27, 1973. The State is not bound by the date on or about which the offense is alleged to have been committed and a conviction may be had upon proof that the offense was committed at any time prior to the return of the indictment which is within the period of limitation. Nees v. State, 402 S.W.2d 186, Tex.Cr.App.; Art. 21.02(6), V.A.C.C.P. The limitation period applicable to the offense here charged is three years anterior to the presentment of the indictment. Art. 12.01(4), V.A.C.C.P. If it be appellant’s position that one of the indictments should have averred that one sale occurred on or about 11:05 A.M. on April 27, 1973, and the other indictment alleged another sale on the same date at about 2:50 P.M., the State still would not have been prohibited from proving any one of the sales of heroin to Braswell (all falling within the limitation period) under either indictment. “While the State is not required to plead its evidence, the allegations in the indictment must be sufficient to apprise the appellant of the act he is charged with committing.” Seiffert v. State, 501 S.W.2d 124, Tex.Cr.App. We find that the State has met such burden in its pleading and find no merit in the contention that the indictment was not sufficient to enable appellant to prepare a defense.

With respect to appellant’s argument that the court’s ruling denied him the defense of jeopardy, we find that Marshall v. State, 432 S.W.2d 918, Tex.Cr.App., cited by appellant, distinguishes the instant case from those cases where jeopardy was found to bar a second prosecution.

In Marshall, the defendant was charged with possession of marihuana in two cases. Upon the trial of the first cause, evidence of two sales of marihuana was presented. This Court found that defendant’s plea of jeopardy should have been sustained at the subsequent trial upon the second indictment, the opinion reciting that the second trial fell within the following rule:

“Where two or more similar but separate acts constituting separate offenses are placed in evidence under an indictment or information under which a conviction of either offense can be had, and neither the state nor the court elects one particular act on which conviction is sought, a plea of former conviction or of former acquittal will be good on a subsequent prosecution based on any of the acts or offenses proved, it being uncertain for which one the conviction was had.”

Unlike Marshall, evidence under both indictments was presented at a joint trial and the State advised the court that it was seeking a conviction in Cause No. C— 73-7976-J upon evidence showing a sale on the afternoon of April 27, 1973, and in Cause No. C-73-7977-J evidence was offered on a sale that occurred at “11:05 to 11:10 A.M.” Thus, there was no uncertainty in the instant ease as to which evidence or set of facts each conviction was based on. We find no merit in appellant’s contention that the court’s action in overruling his motion to quash denied him the defense of jeopardy.

We reject appellant’s contention that the court erred in allowing the prosecutor to choose which sale related to which cause. To the contrary, we find that it was appropriate for the State to elect as to which “particular act on which conviction is sought” in each of the two causes. Marshall v. State, supra.

The judgments are affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: GREEN, Commissioner. ODOM, Judge

license: Public Domain

text:
    Wiley Eugene ULMER, Appellant, v. The STATE of Texas, Appellee.
    No. 53333.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.
    Rehearing Denied Jan. 5, 1977.
    Royal Caswell, Odessa, for appellant.
    Emory C. Walton, Dist. Atty., Eastland, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellant waived a jury and pled nolo contendere to the charge of Retaliation contained in the indictment. Upon conviction in a trial before the court, punishment was assessed at ten years.

Y.T.C.A. Penal Code, Sec. 36.06, Retaliation, reads:

“(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant, witness, or informant.
“(b) For purposes of this section, ‘informant’ means a person who has communicated information to the government in connection with any governmental function.
“(c) An offense under this section is a felony of the third degree.”

The pertinent part of the indictment charges that on or about September 9,1975, in Eastland County, appellant and four other named defendants:

“ . . . did then and there knowingly and intentionally threaten to harm and did harm Oscar Hutchins by an unlawful act, namely: That the said defendants did then and there knowingly and intentionally cause serious bodily injury to the said Oscar Hutchins, in retaliation for and on account of the service of Oscar Hutchins, a witness in a Grand Jury proceeding in the United States District Court for the Western District of Texas, Midland Division, on or about March 6, 1975; ...”

The record reflects that on March 6,1975, Oscar Hutchins, in response to a subpoena, appeared as a witness before the federal grand jury empaneled by the United States District Court for the Western District of Texas in Midland and gave testimony in regard to an investigation of a highjacking of a United States mail truck involving, among others, this appellant. Thereafter, according to the testimony of Hutchins, appellant called him a “snitch” “every time he seen me” and on three occasions appellant told Hutchins he was “going to get” him, and on two occasions tried to run over him with an automobile.

On September 9, 1975, appellant and his four co-defendants went to Hutchins’ home in Ranger to get even with him for “snitching” on them before the federal grand jury in Midland. There, appellant assaulted Hutchins, beating and choking him until appellant was stopped by one of his confederates to prevent him from killing Hutch-ins. As a result, Hutchins received many serious bodily injuries, necessitating hospitalization.

In two grounds of error, appellant contends the court erred in (1) overruling his motion to dismiss the indictment and (2) overruling his motion for arrest of judgment, both of which motions were based on appellant’s contention that the State courts of Texas had no jurisdiction of the case.

Since the indictment alleged and the evidence showed that the retaliation was for Hutchins’ service as a witness before a federal grand jury, the legal issue before this Court is whether the term “witness” as used in V.T.C.A. Penal Code, Sec. 36.06(a), supra, includes a person who has appeared and given testimony before a federal grand jury. Appellant says that “The alleged victim does not fulfill the elements of the Code to be a witness. He did not testify in an official proceeding of the State government, as defined in the Code.”

As stated in the Explanatory Comment to Section 36.06, Retaliation, supra, in Vol. 3, Branch’s Texas Annotated Penal Statutes, 3rd Edition,

“The purpose of this section is to raise the punishment for other offenses, such as assaults (Sec. 22.02) when the conduct is retaliatory. The section is not limited to criminal matters, but sufficiently broad to cover all public servants, witnesses and informants involved in legislative, administrative, and other proceedings.
“It should be noted that the service of a public servant or witness is not limited to governmental functions while the informant is by virtue of the definition in Subsection (b).

We do not agree with appellant’s contention that the term “witness” as used in Section 36.06(a), supra, was meant to be limited to one who testifies in an official proceeding of the State government as the term government is defined in the Code. As stated in the commentary in Branch’s, 3rd Edition, supra, the term “witness” is not limited to any governmental function, as is the term “informant.” See 36.06(b), supra. We conclude that as applied to the facts in the instant case, “witness” applies to one who testifies before a federal grand jury or federal official proceeding in the same manner as it would apply to one who testifies in a State Court or before a State grand jury or other official State governmental agency. This is so because the term is not limited by the statute and because the gravamen of the crime is the unlawful act causing or threatening harm committed in retaliation for or on account of the victim’s services as a witness. If the Legislature had intended to limit the term “witness” to one who testified before an official proceeding of State government, “witness” would have been so limited in the same manner as was the term “informant” in Subsection (b) of Section 36.06, supra.

We hold that the trial court had jurisdiction over this cause and over this appellant and that the motions to dismiss the indictment and for arrest of judgment, both of which were based on lack of jurisdiction of the State court, were properly overruled.

The judgment is affirmed.

Opinion approved by the Court.

ODOM, Judge

(concurring).

I concur in the affirmance of this conviction, but would base that conclusion on different reasoning.

Appellant was charged with a violation of V.T.C.A., Penal Code Section 36.06(a), which provides:

“A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant, witness, or informant.”

It is pointed out in the Practice Commentary to Sec. 36.06, supra, that “ ‘Witness’ is not defined, but presumably the term will be construed to mean only one who testifies before an official proceeding, cf. Section 36.05; otherwise, location of the ‘witness’ part of the offense in this chapter would be inappropriate.”

V.T.C.A., Penal Code Section 36.05, provides:

“Sec. 36.05. Tampering with Witness
(a)A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence; or
(4) to absent himself from an official proceeding to which he has been legally summoned.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a) of this section.
(c) An offense under this section is a felony of the third degree.”

These two offenses are set out in Chapter 36, Bribery and Corrupt Influence, which is in Title 8, Offenses Against Public Administration. These two offenses also are the only ones in this chapter that speak of witnesses. Considering this and the requirement of Section 36.06, supra, that the acts be “in retaliation for or on account of the service of another as a . . witness . . .” (emphasis added), I would construe “witness” to mean one who testifies in an official proceeding.

“Official proceeding” is defined in V.T. C.A., Penal Code Section 36.01(3) as “any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant authorized by law to take statements under oath.”

“Public servant,” as defined in V.T.C.A., Penal Code Section 1.07(a)(30), includes “(B) a juror or grand juror.”

Under this construction of the cited offenses and definitions in the Penal Code, the issue before us in this case would reduce itself to whether “grand juror” in Sec. 1.07(a)(30)(B), supra, includes members of a federal grand jury. I would hold that it does, and on this basis I concur in the judgment.

ROBERTS, J., joins in this concurrence.

      . See V.T.C.A. Penal Code, Sec. 1.07(a)(30).

      . Not defined in the new Penal Code.

      . V.T.C.A. Penal Code, Sec. 1.07(a)(15); “ ‘Government’ means the state; a county, municipality, or political subdivision of the state; or any branch of the state, a county, municipality, or political subdivision.”
      Sec. 38.01(4) of the same code defines “ ‘Governmental function’ includes any activity that a public servant is lawfully authorized to undertake on behalf of government.”


author: ONION, Presiding Judge. ROBERTS, Judge

text:
    Danny McINTURF, Appellant, v. The STATE of Texas, Appellee.
    No. 51416.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.
    Richard D. Bird, court appointed, Chil-dress, for appellant.
    Thomas A. Curtis, D. A. and David L. Gleason, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Prior to his recent retirement Judge Thurman M. Gupton prepared the following opinion for the court. We now adopt it as the opinion of the court.

“The offense is rape under Art. 1183, V.A.P.C.; the punishment, ten years.

“In two grounds of error appellant complains of the failure of the trial court to charge the jury on the law of circumstantial evidence. Appellant contends there is no direct evidence identifying him as the perpetrator of this rape. The record reflects that a man entered prosecutrix’ trailer, exhibited a knife, made verbal threats, and committed acts of oral sodomy and intercourse. The prosecutrix identified appellant in court as the assailant based on a comparison of the sound, quality and tone of appellant’s voice. The voice identification was the only method by which the prosecutrix was able to identify the appellant.

“The prosecutrix testified that she was awakened by a man wearing a hose over his face. She stated that her vision uncorrected was 20-400 and she was not wearing her eye glasses. The man wrapped a bath towel around her head and secured it with a tape measure. The blindfold was not removed until after the man left her trailer approximately three hours later. During the last half hour the man spoke extensively about himself. The prosecutrix thus had ample opportunity to observe the character of the man’s voice. In the presence of the jury she stated that appellant’s voice was the voice of the man in her trailer. She further stated that on one other occasion she had an opportunity to hear appellant’s voice, but the details of that occasion were not admitted into evidence. Cf. Ramon v. State, [162 Tex.Cr.R. 365,] 285 S.W.2d 225. We find this sufficient to show a basis for comparison of the assailant’s voice and appellant’s voice, even though the prosecutrix acquired some additional knowledge of the appellant’s voice after the alleged rape. Locke v. State, [Tex.Cr.App.,] 453 S.W.2d 484.

“The prosecutrix’ testimony concerning the voice identification was very strong and was in no way impeached. Cf. Porter v. State, [Tex.Cr.App.,] 50 S.W. 380. However, there was no physical evidence to connect appellant with the offense. No fingerprints were found because before the man left prosecutrix’ trailer he dusted his fingerprints off everything he might have touched. The trial court was therefore not required to charge the jury on the law of circumstantial evidence if the voice identification by the prosecutrix constituted direct evidence. Helms v. State, [Tex.Cr.App.,] 493 S.W.2d 227.

“In Givens v. State, [35 Tex.Cr.R. 563,] 34 S.W. 626, this Court held a charge on circumstantial evidence was not required where the appellant was identified by the complaining witness on the basis of his voice. He was also identified by another witness as the person who fired the shot which was the basis of the charge of assault with intent to murder.

“In Welch v. State, [143 Tex.Cr.R. 529,] 154 S.W.2d 248, cert. den. 315 U.S. 808, 62 S.Ct. 797, 86 L.Ed. 1207, the accused was charged with kidnapping for extortion and was identified on the basis of his voice and a black hat found in appellant’s possession which was identified as the one worn by the kidnapper. Citing Givens, this Court held that the case was not one requiring a charge on circumstantial evidence.

“In both Givens and Welch, the voice identification was made by a person who had known the appellant for several years.

“In Porter, a conviction for burglary with intent to commit rape was reversed because the evidence was insufficient to establish the identity of appellant, which was proven solely by his voice and by certain tracks. The prosecutrix in that case was not familiar with appellant’s voice and her recognition of appellant’s voice was contradicted by other witnesses. The Court stated:

“ ‘But we do not believe, as stated before, that the identity of appellant is established with that degree of certainty in accordance with the rules of circumstantial evidence . . . ’ (Emphasis added)

“In two other cases, Waggoner v. State, [Tex.Cr.App.,] 98 S.W. 255, and Holland v. State, [56 Tex.Cr.R. 440,] 120 S.W. 470, this Court has treated voice identification as opinion evidence.

“In Waggoner a witness identified appellant by his voice, stating ‘he could not be sure whose voice it was, but that it “went mightily like Joe Waggoner’s.” ’ This Court said:

“ ‘This might be in a certain sense in the nature of an opinion, but, as we understand, this character of evidence is admissible.’

“In Holland a witness testified the voice he heard quarreling with the deceased was the same voice he heard later.

“This Court stated:

“ ‘Certainly a witness can give his opinion as to whether a voice he hears is the same voice he heard a few moments before.’

“Other courts that have passed upon the issue at hand have held that voice identification is direct evidence. In Lindsey v. State, 279 So.2d 913, 914 (Miss.1973), the Supreme Court of Mississippi reaffirmed its earlier holdings, stating:

“ ‘The case of Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961), involved the same question as raised here. There we said:
“ ‘ “It is argued, however, that the prosecutrix had never seen the three persons who invaded her home prior to the date of the alleged crime, and since she had a pillow case tied over her head at the time the alleged crime was actually committed, the prosecutrix’ identification of the appellant as one of the persons who actually ravished her was based entirely upon her recognition of his voice, and that such voice recognition testimony was insufficient to prove the identity of her attacker beyond a reasonable doubt and to a moral certainty.
“ ‘ “But the courts have generally held that testimony identifying the accused by recognition of his voice is direct evidence, and the weight to be given such testimony is a question of fact for the jury to determine. See Annotation — Identification of Accused by his Voice, 70 A.L.R.2d 995, 1012, and cases cited.” ’

“In Martin v. State, [100 Fla. 16,] 129 So. 112, 115 (Fla.1930), the Supreme Court of Florida stated the rule as follows:

“ ‘This court has held that testimony is admissible to establish the identity of an accused even by one having heard his voice, and such evidence is not to be considered as circumstantial, but as direct and positive proof of a fact, and its probative value is a question for the jury.’

“See also Alea v. State, 265 So.2d 96 (Fla.Dist.Ct.App.1972).

“In State v. Carcerano, [238 Or. 208,] 390 P.2d 923 (1964), cert. den. 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807, the Supreme Court of Oregon held testimony identifying defendant through his physical features and more particularly through his voice was competent testimony and that its weight was for the jury to determine. That court also said:

“ ‘We are aware of no reason for believing that a participant in a crime cannot be identified by one who saw the crime’s commission, through his physical features, his attire, or his voice. If the alleged criminal was unusually short, tall, thin, overweight, or had a deformity, those features might attract attention. Voices differ and although the divergence between one voice and another may be slight, nevertheless, the person who receives a telephone call many times identifies the voice of the caller the moment it is heard. The sound of a voice, as it is broadcast by radio, may enable a listener to identify the speaker or singer.’ Id., at page 927.

“It appears the general rule among other jurisdictions, as shown in 70 A.L.R.2d 1011, is that voice identification is direct, not circumstantial, evidence. The difference between recognition of a familiar voice and a voice heard only at the time of, and subsequent to, the offense goes to the weight and probative value of the voice identification testimony and, as such, is a fact for the determination of the trier of the facts.

“We hold the voice identification of the prosecutrix constituted direct evidence, thereby rendering a charge on circumstantial evidence unnecessary. To the extent that Porter, Holland, and Waggoner are in conflict with this holding, they are expressly overruled.

“Grounds of error one and two are overruled.

“Appellant’s third ground of error asserts a violation of appellant’s constitutional right against self-incrimination when appellant was compelled to speak in the presence of the prosecutrix. The record shows that appellant, over objection, stated his name, age, address and educational level in front of the prosecutrix but out of the presence of the jury. As requested by appellant in his brief, we have reconsidered our holding in Olson v. State, [Tex.Cr.App.,] 484 S.W.2d 756 (Opinion on Appellant’s Motion for Rehearing) and find the same to be sound. As this Court stated in Moulton v. State, [Tex.Cr.App.,] 486 S.W.2d 334, 337:

“ ‘A handwriting exemplar in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside the protection of the Fifth Amendment to the Constitution of the United States, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and is outside the protection of Article I, Section 10 of the Constitution of this state, Vernon’s Ann. St., Olson v. State, 484 S.W.2d 756 (Tex. Crim.App.1972).’

“Appellant’s third ground of error is overruled.

“Appellant’s final ground of error complains of the trial court’s exclusion of the transcription of testimony of Dr. Leyva, a psychiatrist, given at a prior hearing to determine appellant’s competency to stand trial. Appellant asserts this testimony was important to his defense of insanity at the instant trial.

“Appellant’s grandmother testified as follows:

“ ‘Q Do you know where Dr. Leyva is now?
“ ‘A Well, he said he was going to Florida.
“ ‘Q He no longer resides in Amarillo?
“ ‘A No.
“ ‘Q Have you been able to locate him?
“ ‘A No.’

“This is the only testimony offered to show the unavailability of Dr. Leyva. We find this insufficient to establish that Dr. Leyva resided outside the state or was removed beyond the limits of the state. See Article 39.01, V.A.C.C.P.; Anderson v. State, [165 Tex.Cr.R. 525,] 309 S.W.2d 239. Cf. Galvan v. State, [Tex.Cr.App.,] 461 S.W.2d 396; Webb v. State, [160 Tex.Cr.R. 144,] 268 S.W.2d 136. We further note appellant failed to make an oath in compliance with Article 39.09, supra.”

Finding no reversible error, the judgment is affirmed.

ROBERTS, Judge

(dissenting).

Appellant was convicted of rape by force and threats under our former Penal Code. After finding the appellant guilty, the jury assessed his punishment at ten years.

By his first two contentions, appellant urges that the trial court committed reversible error in failing to charge on the law of circumstantial evidence, despite the appellant’s timely written objection to the court’s charge. I believe the charge should have been given and that reversal is required.

The prosecutrix was alone in her trailer asleep during the early morning hours of April 20,1973, when she was awakened and forced at knifepoint to submit to several acts of sexual intercourse. The prosecutrix testified that her vision was extremely poor and that her attacker was wearing ladies’ hose over his face when he first accosted her. Shortly thereafter, the prosecutrix was blindfolded. As a result, the prosecu-trix was totally unable to identify the appellant as her assailant.

The prosecutrix did identify the appellant’s voice as being that of the man who raped her. However, the only other evidence connecting the appellant to the offense was purely circumstantial: Events from the appellant’s past were shown to be very similar to the autobiographical details which the assailant narrated to the prosecu-trix at the time of the offense.

The issue then is whether voice identification is direct or circumstantial evidence, for if it is not direct evidence, the trial' court erred in failing to charge on circumstantial evidence.

The distinction between direct and circumstantial evidence is that the former directly demonstrates the ultimate fact to be proved, while the latter is direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proved. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973), and cases there cited. The test is not whether the evidence is more or less probative, or even conclusive, but whether it applies directly or inferentially to the main fact to be proved. See 2 C. McCormick & R. Ray, Texas Law of Evidence, Sec. 1481 (2d Ed. 1956).

Thus, for over 35 years this Court has held that fingerprint identification is of great probative value, Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211 (1941), yet it amounts to direct evidence only in a very narrow class of cases. Eiland v. State, 509 S.W.2d 596 (Tex.Cr.App.1974).

Voice identification, like evidence of fingerprint comparisons, fits readily within the classic definition of circumstantial evidence: First, one proves that the voices sound alike; then one logically infers from the seeming identity of voices that the person with the unknown voice is the same person whose voice is known and identified. Here it should be emphasized that the prosecu-trix was totally unfamiliar with the voice of her assailant (and the voice of the appellant) until the offense occurred; this is comparable to the situation which exists with regard to fingerprint comparisons, where the fingerprint which is “lifted” is an unknown factor until it is compared to the known fingerprint of an individual.

In Porter v. State, 50 S.W. 380 (Tex.Cr.App.1899), this Court indicated that a voice identification like the one in this case is circumstantial evidence. The United States Court of Appeals for the Seventh Circuit reached a similar conclusion in United States v. Zweig, 467 F.2d 1217 (1972), cert. den. 409 U.S. 1111, [93 S.Ct. 921, 34 L.Ed.2d 692] (1973).

A charge on circumstantial evidence should have been given. The failure to do so was reversible error.


author: ONION, Presiding Judge.

text:
    Larry Darnill YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 51991.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.

      Thomas D. Wells, Paris, for appellant.
    James D. Vollers, State Atty., David S. McAngus, Asst. State Atty., Austin, for appellee.
   OPINION

ONION, Presiding Judge.

This appeal arises from a conviction for murder without malice under the provisions of Article 802c, Vernon’s Ann.P.C., of the former Penal Code. The alleged offense was shown to have occurred on January 15, 1972. The trial commenced on June 20, 1972. For some reason the judgment was not entered of record until January 27, 1975. Sentence was not entered until February 10, 1975 and the appellate record did not reach this court until February 27,1976.

We shall at the outset consider appellant’s contention that the evidence is insufficient to sustain the conviction in that the State failed to prove that he was the driver of the car at the time of the alleged offense, a necessary element of such offense.

In the instant case the record reflects' that on the afternoon of January 15, 1972 about 4 p. m. Department of Public Safety Patrolman Earl Green and his partner, Thomas Pervis, stopped a red Chevrolet automobile which bore no license plates and arrested the driver Dillworth. The appellant Young and one Donald Edwards were passengers in the car. Pervis left the keys with Young at Dill worth’s request that the car be released to the appellant and Edwards when Dillworth was taken into custody. About 5 p. m. these officers received a report of an automobile wreck, and when they arrived at the scene, they observed the same red Chevrolet turned upside down and the appellant Young and Edwards were sitting on the ground on the side of the road where the red car was located. There were quite a few people there when the officers arrived.

Billy Ray Hines testified the collision in question occurred right outside his home, and that when he heard the impact of the two cars he looked outside and saw a red car “flying through the air” and that it came to rest upside down. Hines revealed he first went to the other vehicle in which the deceased was riding and observed that the deceased appeared dead, her husband unconscious and two of the three children in the car unconscious. He related that he removed one little boy pinned under some wreckage and “laid him out.” He then explained that when he saw he couldn’t further help the occupants of that car he proceeded to the red car. The time lapse from the time of collision until he got to the red car was not shown. He observed two people in the upside down car. He testified that one was in the front and another in the back, “. . . the car, like I said, was laying upside down.” When he stated the appellant was in the front part of the car, the record then reflects:

“Q He was the one in the front of the car?
“A If the car had been turned over, if you follow me. The car was upside down.
“Q And he was — although the car was turned upside down, he was in the vicinity there of the wheel?
“A Yes, sir.”

Hines was the only witness who placed the appellant inside the car.

Thomas Burgess, the husband of the deceased, testified that he was rendered unconscious by the collision. He did not testify nor was he asked about the identity of the occupants of the other car.

The record clearly shows that the appellant and his companion where lying on the ceiling of the upside down car some time after the car had catapulted through the air. The seats and steering wheel were above them. Officer Green indicated that evidence found at the scene indicated the red Chevrolet “launched or went into the air” and came down on the hood of the other car, flipped off and rolled over and came to rest on its top.

No witness testified he saw the appellant drive the vehicle. The strongest evidence is that he was given the keys and an hour later following the described wreck he was lying in the front of the ceiling of the car after it had flown through the air and collided with another car and turned over. He was not the only one in the car.

To sustain a conviction under Article 802c, supra, the evidence must establish that the accused drove the vehicle as alleged in the indictment. See Article 802c, supra. Cf. Johnson v. State, 517 S.W.2d 536 (Tex.Cr.App.1975); Gamboa v. State, 481 S.W.2d 423 (Tex.Cr.App.1972); Weldon v. State, 397 S.W.2d 859 (Tex.Cr.App.1966); Sharp v. State, 164 Tex.Cr.R. 80,296 S.W.2d 932 (1957).

The State relies upon circumstantial evidence to sustain the conviction. It is well established that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting only to a strong suspicion or mere probability is insufficient. Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973); Flores v. State, 489 S.W.2d 901 (Tex.Cr.App.1973).

In determining whether the incriminating circumstances are sufficient to support a conviction each case must necessarily be tested by its own facts. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Indo v. State, supra; Baker v. State, 447 S.W.2d 172 (Tex.Cr.App.1969).

Only the witness Hines placed the appellant in the car. Only after Hines had extracted one person from the other car who was pinned in the wreckage did he walk over to the car and observe the appellant and another man lying on the ceiling of the overturned car. He answered affirmatively the question of the prosecutor which suggested the appellant was in the “vicinity of the wheel.” Anyone in the car would have been in the vicinity of the wheel, and the evidence reflects not only that the car catapulted through the air and turned over, but that some time elapsed before Hines reached the car.

The instant case is distinguishable from those cases where the defendant is the only person in the car and was found therein shortly after the offense. See, e. g., Sandoval v. State, 422 S.W.2d 458 (Tex.Cr.App.1967); Perez v. State, 432 S.W.2d 954 (Tex.Cr.App.1968).

In 24 Tex.Jur.2d, Evidence, Sec. 742, p. 422, it is written:

“In criminal cases, a judgment of conviction, to be sustained on appeal, must be supported by evidence that produces a moral certainty of the guilt of the accused to the exclusion of every reasonable doubt. The evidence will be insufficient to sustain the conviction where, although not leaving the accused free from suspicion of guilt, it still fails to show his guilt to a moral certainty, so as to exclude all reasonable doubt.
“In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged. . . . ” Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969); Ysasaga v. State, 444 S.W.2d 305 (Tex.Cr.App.1969).

Although the evidence does not leave the appellant free from the suspicion of guilt, it fails to show his guilt to a moral certainty so as to exclude all reasonable doubt that the appellant was the driver of the car. See Culmore v. State, supra.

The judgment is reversed and the cause remanded.

ODOM, J., dissents.


text:
    Jackie Lee HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 53319.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.
    Michael M. Phillips, Angleton, for appellant.
    Ogden Bass, Dist. Atty., and Thomas W. Watson, Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

Appellant entered a plea of guilty before the court on September 15, 1975, to the offense of unauthorized use of a vehicle. Punishment was assessed at three years, probated.

A motion to revoke appellant’s probation was filed on February 3, 1976, and the record reflects that after a hearing on the motion on March 4, 1976, the court entered an order finding that appellant had violated the terms of his probation by committing the offense of attempted burglary on November 22, 1975.

Appellant advances contentions relative to the sufficiency of the evidence to support the court’s order revoking probation and the admissibility of a confession introduced at the hearing. We cannot consider these contentions because the record does not contain a transcription of the court reporter’s notes of the hearing on the motion to revoke for us to review. See Barrow v. State, Tex.Cr.App., 502 S.W.2d 162.

Appellant also complains of the trial court’s action in “not requiring a sufficient record on the hearing on indigency to be made so that the Court of Criminal Appeals would be able to determine whether or not the trial court abused its discretion when the trial court found that the defendant was not indigent.”

The record reflects that appellant on March 4,1976 filed a pauper's oath in which it was stated that he was “wholly destitute of means to pay for a transcript and record of these proceedings” and requested the court to “order the county to furnish a transcript and record.” The docket sheet reflects an entry of 4-15-76 showing that a hearing was had on the question of indigen-cy and the relief was denied. The record contains still another pauper’s oath in which appellant requested “a transcript and record of the proceedings on hearing for pauper’s affidavit.” At the bottom of the oath there is a notation by the court “heard and denied.” This instrument bears a file date of April 15, 1976. Insofar as the record reflects, the court filed no findings of fact following the hearing at which the relief requested in the pauper’s oath was denied.

Appellant cites Curry v. State, Tex.Cr.App., 488 S.W.2d 100, where this Court held that after the trial court holds a hearing under Art. 40.09, Sec. 5, V.A.C.C.P. to determine if a defendant is indigent:

“If the court finds he is not indigent, a sufficient record of the hearing on indi-gency must be made so that in the event of another appeal, this Court will be able to determine whether there was an abuse of discretion or not.”

The State notes in its brief that appellant was represented by retained counsel and was out on bond at the time of the revocation hearing and “out on bond pending appeal.” These factors, standing alone, are not determinative of the appellant’s in-digency at the time of appeal. Barber v. State, Tex.Cr.App., 542 S.W.2d 412; Conrad v. State, Tex.Cr.App., 537 S.W.2d 755; Simmons v. State, 511 S.W.2d 308.

The State relies on Barrow v. State, supra. In Barrow, the defendant filed a pauper’s oath in which it was recited that he was to poor too pay for or give security for the “statement of facts.” A hearing was held pursuant to Art. 40.09, Sec. 5, supra, and the court found that defendant was not too poor to pay for or give security for a “statement of facts.” The order contained detailed findings of fact supporting the court’s determination that defendant was not indigent. Complaint was made on appeal that defendant had been erroneously deprived of a transcription of the court reporter’s notes of the trial in which he was convicted. This Court noted that it did not have the evidence of the indigency hearing before it and concluded that, absent an agreed statement of facts or a formal bill of exception “or any other way” showing that the trial court had abused its discretion in denying him a free record, the Court would consider the trial court’s order as being supported “by proper evidence and conclusive of the matter.”

In Barrow, the defendant made no attempt to bring “before this Court a record which would show that the trial court abused its discretion in denying him a free transcription of the court reporter’s notes” and on appeal complained that he had been erroneously deprived of a free record. In the instant case, appellant, after having his request denied for a free record at the conclusion of the hearing on indigency, filed another pauper’s oath in which he requested a record of that hearing. Thus, appellant made an effort to get the record of the hearing on indigency before this Court.

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the United States Supreme Court held that due process and equal protection clauses of the Fourteenth Amendment are violated where a state provision for an appeal in all criminal cases as a matter of right is so administered as to deny full appellate review to an indigent defendant solely because of his inability to pay for a transcription of the record while granting such review to all other defendants.

If a defendant is to have full appellate review in accordance with Griffin and Art. 40.09, Sec. 5, supra, it follows that he is entitled to have an appellate court review the court’s adverse determination on a hearing on the defendant’s pauper’s affidavit in which a free record is requested for appeal.

For the reasons stated, the appeal is abated in order that a transcription of the court reporter’s notes of the hearing on indigency may be furnished appellant in order that he may have appellate review of the court’s order denying the relief requested in his pauper’s oath.

It is so ordered.

Opinion approved by the Court.

      . Art. 40.09, Sec. 5, V.A.C.C.P., provides:
      “A party desiring to have included in the record a transcription of notes of the reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk in duplicate in time for inclusion in the record and the defendant shall pay therefor. The court will order the reporter to make such transcription without charge to defendant if the court finds, after hearing in response to affidavit by defendant that he is unable to pay or give security therefor. Upon certificate of the court that this service has been rendered, payment therefor shall be made from the general funds by the county in which the offense is alleged to have been committed in a sum to be set by the trial judge. The court reporter shall report any portion of the proceedings requested by either party or directed by the court.”


author: ODOM, Judge. DOUGLAS, Judge

text:
    Richard C. DEXTER, Appellant, v. The STATE of Texas, Appellee.
    No. 52330.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.

      Gerald H. Goldstein and Cheryl L. Wilson, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Keith W. Burris, Edward C. Prado, Nelson M. Atwell and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for commercial obscenity (exhibiting an obscene motion picture), a Class B misdemeanor. V.T.C.A., Penal Code Sec. 43.23. Punishment was assessed by the court at ninety days’ imprisonment and a seven hundred fifty dollar fine.

In view of the reversal required, we will only consider that ground of error in which appellant contends that the trial court erred in refusing to grant his motion for mistrial based on the action of the prosecuting attorney. The motion for mistrial was made after a file cabinet labeled “organized crime” was placed in full view of the jury.

The facts surrounding this error may be summarized as follows. During the selection of the jury, the prosecutor asserted that the State would prove a “syndicate” located in Memphis, Tennessee, owned and operated the theatre where the film was shown.

The appellant secured from the court an order forbidding the prosecution from making reference to “syndicate,” “organized crime,” or “mafia.”

Shortly after the trial started, a file cabinet was brought into the courtroom. One side of this cabinet displayed a 5½" X 8V2" white sign on which were written in prominent red letters the words “organized crime.” The filing cabinet was placed between the prosecutor’s table and the jury, The side of the cabinet bearing the sign faced the jurors as they entered the jury box.

The appellant, outside of the presence of the jury, made a motion for mistrial. This motion was denied by the court. In order to preserve error, the appellant’s counsel entered testimony and exhibits into the record.

The appellant’s counsel stated that he saw the jurors “craning their necks” to see the sign on the filing cabinet and that the jurors had seen the sign. Counsel also introduced into the record the sign with the red lettering on it and a diagram showing the proximity of the filing cabinet to the jurors. The State made no objection to the testimony or the exhibits introduced into the record by the appellant.

The prosecuting attorney also testified outside the presence of the jury. He stated that the cabinet contained the files of appellant’s case and some other cases. He also said that the cabinet belonged to the Organized Crime Section of the District Attorney’s office.

The trial continued after the judge denied appellant’s renewed motion for mistrial and ordered the sign on the file cabinet removed from the courtroom. During the jury argument, the prosecutor again attempted to connect the appellant with “organized crime.”

The State contends that the appellant’s motion for mistrial is not sufficient to preserve error for our view, citing Delgadillo v. State, Tex.Cr.App., 508 S.W.2d 383.

The defendant in that case was on trial for driving while intoxicated. During the trial an ice pick was placed on the prosecutor’s table. No reference was made to the ice pick during the proceedings, and there was nothing in the record of that case to establish that the jury had seen the instrument.

In affirming the conviction in Delgadillo, supra, we stated:

“Also, the appellant never actually voiced an objection to the instrument, but, instead, made only a motion for mistrial, late into the trial. See Melton v. State, Tex.Cr.App., 508 S.W.2d 104.” 508 S.W.2d at 384.

The case at bar is distinguishable from the decision in Deigadillo, supra. A motion requesting the court to instruct the jury to disregard the sign on the file cabinet would not have cured the injury. The motion for mistrial, and the adverse ruling obtained thereon, was sufficient to preserve error for our review in this case.

In Delgadillo, supra, we also stated:

“We do not intend to imply that we condone a prosecutor displaying potentially prejudicial objects before the jury, knowing full well they will not be introduced. However, the record in this cause reflects no bad faith on the part of the prosecutor.” 508 S.W.2d at 384.

The record in the case at bar does not lead us to the same conclusion as that reached in Delgadillo, supra. The prosecutor, in direct contravention of the express order of the court, attempted to connect the appellant with “organized crime” throughout the course of the trial.

We have often stated that an individual should only be convicted upon evidence that demonstrates he is guilty of the offense charged and not through an attempt to arouse prejudice in the minds of the jurors. Koller v. State, Tex.Cr.App., 518 S.W.2d 373. We have also held that an accused is entitled to “at least one tolerably fair trial." Brown v. State, 168 Tex.Cr.R. 67, 323 S.W.2d 954, 957.

The conduct of the prosecuting attorney in the case at bar prevented the appellant from receiving a fair and impartial trial.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge

(concurring).

I concur in the result. The statements of attorneys of what the jurors saw is not evidence.

      . The appellant also raises grounds of error on those matters which we need not discuss.


author: ODOM, Judge.

text:
    Nathan WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 52775.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.

      J. R. Musslewhite, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Phyllis M. Bell, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of attempted burglary. His punishment, enhanced under V.T.C.A., Penal Code Sec. 12.42(d), was assessed at life imprisonment.

The first two grounds of error challenge the validity of the indictment. We initially observe that no motion to quash was made.

The indictment alleges in part that:

“Nathan Williams hereinafter referred to as the Defendant, heretofore on or about March 2, 1975, did then and there unlawfully commit an offense hereinafter styled the primary offense in that he did attempt to enter a building owned by Ray Bailey, by prying a door latch with a steel meathook, having intent to commit burglary.”

Appellant’s first attack on the indictment claims it is fundamentally defective because it does not allege that the attempted entry was made without the effective consent of the owner. His second attack claims the allegation of specific intent to commit burglary is insufficient. Underlying both of these grounds of error is the contention that the constituent elements of the offense attempted must be set out in an indictment charging the attempt. The grounds must be sustained or overruled according to the validity of this underlying contention.

In Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785, at 787-788, the following observations were made:

“It has consistently been held by this Court that in assault cases the indictment or information need not allege the elements of the offense intended to be committed by the assault. Indictments alleging an assault with intent to rape, or to murder, or to rob the named complainant are not required to allege the elements of rape, murder or robbery. Small v. State, Tex.Cr.App., 466 S.W.2d 281; Williams v. State, Tex.Cr.App., 491 S.W.2d 142; Ex parte Ward, Tex.Cr.App., 470 S.W.2d 684; Welcome v. State, Tex.Cr.App., 438 S.W.2d 99; Bustillos v. State, Tex.Cr.App., 464 S.W.2d 118; Johnson v. State, Tex.Cr.App., 384 S.W.2d 885; Thom v. State, 167 Tex.Cr.R. 258, 319 S.W.2d 313; Clark v. State, 162 Tex.Cr.R. 493, 286 S.W.2d 939; Jones v. State, 89 Tex.Cr.R. 355, 231 S.W. 122; Crumes v. State, 28 Tex.App. 516, 13 S.W. 868. See, also, Article 1165, Vernon’s Ann.P.C., and annotations thereunder.
“In Earl v. State, Tex.Cr.App., 514 S.W.2d 273, the contention was made by the defendant that the indictment should have alleged the constituent elements of the theft in the course of which the aggravated robbery was committed. The Court, in construing V.T.C.A., Penal Code Sections 29.02 (defining robbery), 29.01, and 29.03, said:
“ ‘It is appellant’s contention that the indictment should have alleged the constituent elements of the theft in the course of which the robbery was committed. In considering the argument we observe that Section 29.01, V.T.C.A. Penal Code, provides in part:
“ ‘ “ ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” ’
'“Thus, the actual commission of the offense of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same. Of course it must be alleged and proven that the alleged offense was committed “in the course of committing a theft” and “with intent to obtain or maintain control of the property” involved in the theft. Although the proof will involve proving up a theft or attempted theft, the elements of the particular theft (see Chapter 31, and specifically Sees. 31.02 and 31.03, V.T.C.A. Penal Code) or attempted theft (see Sec. 15.01, V.T.C.A. Penal Code), need not be alleged in the indictment.’
“The actual commission of the offense of theft is not a prerequisite to the commission of burglary. The unlawful entry with the intent to commit theft (or a felony) is the required element which must be alleged and proved. Under the definitions of burglary and theft contained in the V.T.C.A., Penal Code effective January 1, 1974, supra, although the proof will involve the necessity of establishing the intent to commit the offense of theft (Sections 31.02 and 31.03, V.T. C.A., Penal Code), the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft. See Earl v. State, supra.”

Following the same theory today, we hold that an indictment for criminal attempt is not fundamentally defective for failure to allege the constituent elements of the offense attempted.

The first and second grounds of error are overruled.

The final ground of error challenges the sufficiency of the evidence. The evidence presented by the State included the testimony of Vernon Gallier, the arresting officer, Ray Bailey and G. W. Finley.

Officer Gallier testified that he received a radio message that a burglar alarm had been triggered at the Ryder Truck Rental Company. Within a few minutes, the officer arrived at this location and saw the appellant and another person run from the corner of a small plywood building. The officer apprehended the appellant but the other person escaped. The door to the small building had been damaged. A steel hook, found approximately one foot from the door, was covered with yellow paint chips matching the paint on the door. Gal-lier also stated that a fence surrounded the area where the appellant was apprehended. The gate to this area was locked, but two gaps had been made in the fence.

Bailey testified that he was an employee of the Ryder Truck Rental Company and that he had not given appellant permission to enter the premises. Finley stated that his company, Alarm Engineers, had installed the security system for the truck rental enterprise. Finley monitored the alarm system on the day of the offense and he stated that when the alarm sounded, he heard banging through a speaker connected to the security device.

The court charged the jury on circumstantial evidence.

We conclude that the evidence is sufficient to support the conviction. The third ground of error is overruled.

The judgment is affirmed.


text:
    Ex parte Bob LEWIS.
    No. 53481.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

Petitioner was convicted of the offense of aggravated assault with a deadly weapon on March 14, 1975, and granted a six year probated term. On May 18, 1976, the probation was revoked. No appeals were taken.

Petitioner filed his application for writ of habeas corpus with the trial court, alleging that the information upon which petitioner was convicted was fundamentally defective since the information failed to allege the name of a complainant and since there was no allegation that the accused caused or threatened to cause harm or injury to another as required under V.T.C.A., Penal Code Sections 22.01 and 22.02.

The information in petitioner’s case, omitting the formal parts, alleges:

“Bob Lewis, who is hereinafter styled defendant, on or about the 12th day of March, A.D., 1975, and before the making and filing of this Information, in the County and State aforesaid, did then and there intentionally and knowingly use a deadly weapon, to-wit: a firearm, that in the manner of its use and intended use was capable of causing death and serious bodily injury.”

The trial court has recommended that the writ be granted since the information is fundamentally defective, and the State’s brief concedes that error of fundamental dimensions has occurred. We agree, noting that it is fundamental that the name of the complaining witness is a necessary requisite to a valid indictment or information. See Articles 21.02, 21.07, and 21.21, V.A.C.C.P. We are also in agreement that the information in the case at bar fails to properly allege that the appellant caused or threatened to cause harm or injury to another as required by the provisions of Sections 22.01 and 22.02, supra. See Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975).

Furthermore, it is apparent that petitioner may challenge fundamentally defective indictments by way of a post-conviction application for writ of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Huggins v. State, 544 S.W.2d 147 (1976).

For the reasons stated, the relief is granted, the conviction is set aside, and the information is ordered dismissed.

      . The record affirmatively shows that petitioner waived his right to be indicted by a grand jury and that the prosecution proceeded upon an information. See Article 1.141, V.A.C.C.P.


author: PHILLIPS, Judge.

text:
    Ex parte Trinidad Andrade GARCIA.
    No. 53482.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.
    / Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted of the offense of carrying a handgun on premises licensed to sell alcoholic beverages in Criminal District Court No. 3 of Tarrant County on September 30, 1974. Punishment was assessed at 10 years imprisonment, and no appeal was perfected.

Petitioner filed his application for writ of habeas corpus alleging that the indictment in his case was fundamentally defective inasmuch as it failed to allege a necessary culpable mental state. The trial court entered Findings of Fact and Conclusions of Law recommending that the relief be granted.

Omitting the formal parts, the indictment alleges that on or about March 29, 1974, petitioner:

“did then and there carry on or about his person a handgun, on a premises licensed and issued a permit by the State of Texas for the sale and consumption of alcoholic beverages, namely: Roberts El Dorado Club, 3125 North Main Street, Fort Worth, Tarrant County, Texas.”

V.T.C.A., Penal Code, Sec. 46.02, provides in pertinent part:

“(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun . (Emphasis added.)
“(c) An offense under this section is a felony of the third degree if it occurs on any premises licensed or issued a permit by this state for the sale or service of alcoholic beverages.”

The statute requires a culpable mental state be alleged and proved. See V.T.C.A., Penal Code, Sec. 6.02. The indictment in the case at bar fails to allege any culpable mental state, and is therefore fundamentally defective. See Hazel v. State, Tex.Cr.App., 534 S.W.2d 698; Price v. State, Tex.Cr.App., 523 S.W.2d 950; Huggins v. State, Tex.Cr.App., 544 S.W.2d 147 (decided December 8, 1976); and compare Braxton v. State, Tex.Cr.App., 528 S.W.2d 844.

Furthermore, it is apparent that petitioner may challenge a fundamentally defective indictment by way of post-conviction application for writ of habeas corpus. See Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179; Huggins v. State, supra.

For the reason stated, the relief is granted; the conviction is set aside and the indictment is ordered dismissed.


author: RAY, Justice.

text:
    Robert T. JACKSON et al., Appellants, v. James L. RANDALL, Appellee.
    No. 8352.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 28, 1976.
    Rehearing Denied Nov. 30, 1976.
    Mark Davenport, Atwell, Cain & Davenport, Dallas, for appellants.
    Wm. C. Herndon, Herndon, Girand & Dooley, Dallas, for appellee.
   RAY, Justice.

This is a summary judgment case. Ap-pellee (plaintiff), James L. Randall, brought suit against appellants (defendants), Robert T. Jackson and J. Harold Wilson, to enforce a final judgment of the Monroe County Supreme Court of the State of New York. All parties filed motions for summary judgment. The trial court rendered summary judgment in favor of Appellee Randall and denied appellants’ motion for summary judgment. Appellants have perfected their appeal and submit five points of error for our consideration.

Appellee Randall obtained a default judgment in the New York court against appellants in 1972 for damages in the sum of $270,459.00, together with all costs. Appel-lee sought the enforcement of the New York judgment and the trial court found appellee entitled to a summary judgment.

Appellants have urged that the New York court default judgment is not entitled to full faith and credit because the New York court lacked jurisdiction over the appellants, “either in personam or through exercise of what is commonly referred to as Tong arm’ jurisdiction pursuant to Section 302(a) C.P.L.R.”

The allegations by Randall in New York were that appellants had conspired to defraud appellee by selling him 20,000 shares of Capital Oil Corporation of Dallas, Texas, and caused the shares to be issued in the State of New York without proper registration. In appellee’s affidavit for summary judgment it was stated with regard to the New York case that:

“The lawsuit as filed was an action to recover damages resulting from contractual breaches of a contract between Plaintiff and Defendants, and the fraudulent and tortious sale to Plaintiff of shares of the common stock of Capital Oil Corporation and which Defendants were its agents and/or officers or employees. The transactions involving the sale of the shares of the common stock of Capital Oil Corporation all occurred in the State of New York.”

By reply affidavits, appellants stated that they had been at all times relevant to the lawsuit residents of the State of Texas; that they had never been within the jurisdictional boundaries of the State of New York in connection with any transaction with James L. Randall; that they had never done any act within the State of New York in connection with the sale to James L. Randall of Capital Oil Corporation stock; that they had never transacted any business in the State of New York relevant to the matters involved in the lawsuit; that they had never entered into any contract for the sale of Capital Oil Corporation stock with James L. Randall within or without the jurisdictional boundaries of the State of New York; and that they had never sold any stock to Randall or committed any fraudulent or tortious acts in connection with any sale of stock to Randall in the State of New York or in any other state.

Article IV, Section 1 of the Constitution of the United States provides that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. It is well established, however, that despite the provisions of the full faith and credit clause, Texas courts may examine the facts to determine whether or not a sister state had jurisdiction to enter a decree that is sought to be enforced in Texas. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Burleson v. Burleson, 419 S.W.2d 412 (Tex.Civ.App. Houston—14th Dist. 1967, no writ); Spitzmiller v. Spitzmiller, 429 S.W.2d 557 (Tex.Civ.App. Houston—1st Dist. 1968, writ ref’d n. r. e.).

The question before this court in its review of the summary judgment awarded to appellee is whether or not the appellee has established as a matter of law that the New York court had jurisdiction to enter its decree. Tex.R.Civ.P. 166-A. Resolution of the question depends in large part on the force to be given the foreign judgment. The Texas Supreme Court has recently written that where a judgment appears to be a valid final and subsisting judgment entered by a court of general jurisdiction, its introduction into evidence makes a pri-ma facie case for the parties seeking to enforce it, and the burden of going forward with the evidence is on the party resisting the judgment to establish that the foreign court did not have proper jurisdiction to render the decree. Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975); Moody v. First Nat. Bank of Dona Ana County, 530 S.W.2d 879 (Tex.Civ.App. Houston—1st Dist. 1975, writ ref’d n. r. e.); Hungate v. Hungate, 531 S.W.2d 650 (Tex.Civ.App. El Paso 1975, no writ); Hamilton v. Newbury, 412 S.W.2d 801 (Tex.Civ.App. Dallas 1967, writ ref’d n. r. e.).

The Texas cases have not, however, traditionally afforded equal dignity to default judgments. While ordinarily, presumptions are indulged in support of a judgment, no presumptions are indulged in favor of a default judgment. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (Tex.Com.App.1935, opinion adopted); Harris v. Hayles, 433 S.W.2d 250 (Tex.Civ.App. Texarkana 1968, no writ); Aetna Casualty and Surety Co. v. Dobbs, 416 S.W.2d 869 (Tex.Civ.App. Eastland 1967, no writ); Bankers Life and Casualty Company v. Watson, 436 S.W.2d 404 (Tex.Civ.App. Tyler 1968, writ ref’d n. r. e.). Jurisdiction of the foreign court to grant the default judgment must appear affirmatively on the face of the record. This rule was applied by the Dallas Court of Civil Appeals in Country Clubs, Inc. v. Ward, 461 S.W.2d 651 (Tex.Civ.App. Dallas 1970, writ ref’d n. r. e.) in refusing to enforce a foreign judgment. The Court held that the party seeking enforcement of a Kentucky judgment in Texas had not demonstrated strict compliance with the Kentucky long arm statute.

Conversely, where the jurisdiction of a foreign court to grant a default judgment appears affirmatively in the record, the burden is on the party who resists its enforcement to refute the decree’s validity. Randall appeared pro se in the New York action, and did not present a particularly lucid factual background of his cause of action. Nevertheless, he did allege the essential jurisdictional facts required by the New York long arm statute to make out a prima facie case upon proper presentation of the judgment. The burden of going forward with the evidence then shifted to the appellants, Jackson and Wilson, to rebut the presumption of the validity of the New York judgment. In meeting this burden, the appellants have refuted by affidavit the applicability of each element of the New York long arm statute (New York Civil Practice Law and Rule, Sec. 302(a)).

The statements contained in appellants’ controverting affidavits, if taken as true, produced evidence sufficient to justify a finding of the nonexistence of the presumed fact of jurisdiction. 1 McCormick & Ray, Texas Law of Evidence, See. 53, p. 62 (1956). In this case the appellants have succeeded in raising a fact issue concerning jurisdiction. The award of a summary judgment to the Appellee Randall must be reversed. Likewise, the existence of a fact issue as to jurisdiction raised by Randall and refuted by Jackson and Wilson precludes an award of a summary judgment to appellants. The case will be remanded for further proceedings to determine the fact issue of jurisdiction of the New York court to issue its decree.

Even had the appellants failed to raise a fact issue by way of their controverting affidavits, the summary judgment awarded to appellee would have at best been suspect. In the transcript submitted to this Court, no copy of the foreign judgment on which the appellee relies had been affixed to his motion for summary judgment or his affidavit in support of his motion. Rule 166-A(e), Texas Rules of Civil Procedure, requires that sworn or certified copies of all papers or parts thereof referred to in an affidavit be attached. Our Supreme Court has been called upon to apply this rule several times in recent years and has adhered to strict compliance. A motion for summary judgment must be supported by its own summary judgment proof and not by reference to the pleadings. The Rule is: If court records or other doeu-ments are relied upon by the movant, the originals or authenticated or certified copies of such records or documents must be attached to the motion or affidavit in support of the motion and not to the pleadings in order for such records or documents to constitute summary judgment proof. Texas Nat. Corp. v. United Systems International, Inc., 493 S.W.2d 738 (Tex.1973); Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1963); Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Gist v. Stafford Hospital District, Tex.Civ.App. Eastland, 541 S.W.2d 510; 1 Tex.Ct.Rpts. 539 (9/3/76).

The judgment of the trial court is reversed and the cause is remanded for a trial upon the merits.

ON MOTION FOR REHEARING

Appellee Randall has filed his motion for extension of time within which to file his motion for rehearing. The opinion of this Court was delivered on September 28, 1976, and the last day for filing appel-lee’s motion for rehearing fell on October 13, 1976, but the motion was not received by this Court until October 14, 1976. Attached to appellee’s motion for extension of time was an affidavit of Ver jean Craig-head, personal secretary to appellee’s attorney, in which affiant swore that she mailed the motion for rehearing to this Court on October 12,1976. We consider the affidavit to be sufficient proof of the date of mailing under Rule 5 of the Texas Rules of Civil Procedure and have thus ordered appellee’s motion for rehearing to be filed as of the date it was received. Since there is proof that the motion was timely mailed, the filing will be timely and appellee’s motion for extension of time to file the motion for rehearing at a late date under Rule 21c is unnecessary. Appellee’s motion for extension of time is dismissed.

We noted in our opinion that the original transcript did not contain or show that an authenticated copy of the New York Judgment had been attached to appellee’s affidavit for summary judgment. A supplemental transcript containing the authenticated judgment has been forwarded to this Court by the Clerk of the trial court with the notation, “Filed as Attachment to Affidavit for Summary Judgment 7-26-74 but inadvertently omitted from original transcript.” We have ordered the supplemental transcript filed in this Court.

Appellee’s motion for rehearing has been considered and we find no reason to change our original opinion. Appellee’s motion for rehearing is therefore overruled.


author: OSBORN, Justice. OSBORN, Justice.

text:
    VOLKSWAGEN OF AMERICA, INC., Appellant, v. Larry J. LICHT and Bob Hoy Volkswagen of El Paso, Inc., Appellees.
    No. 6537.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 20, 1976.
    Motion on Rehearing and Rehearing Denied Nov. 17, 1976.

      Diamond, Rash, Leslie & Smith, Alan V. Rash, El Paso, for appellant.

      ■ Calhoun, Morton & Deason, Charles A. Deason, Jr., Ratliff & Haynes, Chris Haynes, El Paso, for appellees.
   OPINION

OSBORN, Justice.

The Appellant complains of the trial Court’s judgment which awarded trebled damages and attorney’s fees for violation of the Texas Deceptive Trade Practices — Consumer Protection Act arising out of an alleged breach of an express new car warranty. Relief was sought under the provisions of Section 17.50(a)(2), Tex.Bus. & Comm. Code Ann. We affirm, except as to the provision for indemnity by the dealer against the importer which is reversed and rendered.

The Appellee purchased a new 1974 Volkswagen Super Beetle on September 6, 1974. He received an owner’s manual and warranty pamphlet, which contained the following language:

“1. VWoA warrants that every 1974 Volkswagen vehicle imported by VWoA and sold as a new vehicle to a retail customer will be free from defects in material and workmanship for 12 months after the date of delivery of the vehicle to the original retail customer or until the vehicle has been driven 20,000 miles, whichever comes first. * * * ”

On September 26, 1974, while Mr. Licht was driving on a highway, the engine caught on fire. At that time, the car had 1,546 miles on it and had been in service less than three weeks. Mr. Licht was told by the dealer that the warranty would not cover the repairs and he subsequently made a claim against his automobile insurance carrier, who estimated the cost of repairs at $388.19 and paid all of that amount to him, except the cost of the carburetor dash-pot, which was $16.12. He then instituted this suit against the importer and the dealer of the car. Subsequently, the insurance carrier, exercising its right of subrogation, made demand and was reimbursed the total cost of the repairs, and they then sent Mr. Licht a draft for $16.12, which was received by him but never presented for payment. (No issue is raised as to whether the payment under the policy and the subrogation agreement constituted an assignment of the cause of action, or whether the payment to the carrier and its execution of a release constituted a release or an accord and satisfaction of the cause of action, and we do not decide such issues.)

The jury found in the lone issue relating to liability that the fire was caused by a manufacturing defect in material or workmanship, and in the remaining issues found the amount of the reasonable attorney’s fees for services in the trial Court, in the Court of Civil Appeals, and in the Supreme Court, both where a writ was granted and where it was not granted. Judgment was entered based upon these findings, and the dealer was awarded indemnity over and against the importer.

The Appellant presents three points of error making a “no evidence” attack on Special Issue No. One: first, in submitting the issue; second, to the answer made by the jury; and third, in the denial of a Motion to Disregard the answer. The next three points raise the “insufficient evidence” or “against the great weight” issue. First, we note that there is no assignment in the motion for new trial to support the first point, and the fourth and sixth points do not raise an issue which would be error upon the part of the trial Court. Nevertheless, the other points do raise both the “no evidence” and “against the great weight” issues, and each contention will be considered.

In passing on the “no evidence” points of error, we must consider only the evidence and inferences tending to raise a fact issue, and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). The evidence tending to support the jury’s answer comes from Mr. Ray Sides, a witness called by the Appellant, who examined the car the day after the fire, and he said:

“Q And what did you do as a result of that examination?
“A I inspected the engine compartment where the fire had concentrated and in my brief inspection of it, I tried to determine the best I could of what caused it, if possible.
“Q Did you do so?
“A In my opinion, yes, sir.
“Q Will you tell us what that was?
“A It was the dash-pot in the carburetor.
* * * * * *
“Q And you found that there was a carburetor defect?
“A I said to the best of my knowledge that is what caused it.
* * * * * *
“Q And you say it was a carburetor defect that caused the fire in his engine?
“A In my opinion, yes, sir.”

Certainly, this testimony, which was received without objection, was some evidence to support the jury finding that the fire was caused by a manufacturing defect in material or workmanship.

In passing on the “great weight of the evidence” issue, we consider the entire record and review all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Mr. Jay Blobner, who was with Appellant when the fire occurred, had no opinion as to the cause of the fire. Mr. Hoy, the dealer, said a defective carburetor was covered by the warranty, but that the repairs after the fire were not handled on a warranty basis because the dealer could not determine what caused the fire. They were unable to determine whether there was a defective part or not. He said it definitely was a gasoline fire, and not an electrical one. He concluded: “I don’t have evidence that it was a defect or was not a defective (sic).” Considering all this testimony, we cannot say the jury’s answer is against the great weight of the evidence. The first six points of error are overruled.

Point of Error No. VII asserts that the trial Court erred in overruling and denying the Appellant’s plea in bar. Although the brief does not reflect to which assignment of error in the motion for new trial this point is germane, as required by Rule 418, Tex.R.Civ.P., it is obviously germane to Assignment No. I in the motion for new trial, which states:

“The Court erred in overruling and denying this Defendant’s Plea in Bar, which said Plea is incorporated herein by reference thereto for all purposes.”

This assignment does not comply with the provisions of Rules 320, 321, 322, and 374, Tex.R.Civ.P., and under the holding in Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), the point of error may not be considered.

Point of Error No. VIII contends that the trial Court erred in submitting Special Issue No. Two, concerning attorney’s fees in the trial of the case, to the jury because there was insufficient evidence to support the submission thereof. There is no assignment in the motion for new trial to stand as the basis for this point of error, and thus, it may not be considered. Even if such an assignment was in the motion for new trial, it would be of no benefit because a trial Court may refuse to submit an issue only where there is no evidence and not where the objection is that there is insufficient evidence. Casey v. Jones, 189 S.W.2d 515 (Tex.Civ.App.—Waco 1945, writ ref’d w.o.m.).

Point of Error No. IX asserts that the answer to Special Issue No. Two is against the great weight and preponderance of the evidence. Again, we find that there is no assignment in the motion for new trial which will serve as a basis for the point of error.

Points of Error VII, VIII, and IX are not considered.

Points of Error X, XI, and XII attack the jury issues and answers and the judgment with regard to attorney’s fees on appeal, contending that there was no evidence to support the submission of the issue, that the award is speculative, conjectural and not authorized by law, and that Section 17.50(b) of the Deceptive Trade Practices—Consumer Protection Act does not authorize or provide for the award of attorney’s fees beyond the trial Court level. The statutory provision in question provides:

“(b) In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorney’s fees reasonable in relation to the amount of work expended; * * Section 17.50(b)(1) Tex. Bus. & Comm.Code Ann.

With regard to the sufficiency of the evidence to support the jury findings, counsel for the Appellee testified as to the number of hours expended in preparation of the case. Mr. John Niland, a practicing attorney in El Paso, testified that he had reviewed the file of counsel for the Appellee and that in his opinion the legal work performed was necessary, and he testified as to a reasonable hourly fee for the work performed. It was on the basis of this testimony that the jury arrived at their answer as to the attorney’s fees for work performed in the trial of the case. In addition, Mr. Niland testified that he was familiar with the legal requirements for perfecting an appeal, which he outlined, and what would be a reasonable fee for such services. Based upon that testimony, the jury answered the issues concerning attorney’s fees for services rendered if the judgment should be appealed. We believe that the jury’s findings of $500.00 for services in the Court of Civil Appeals, $50.00 in the Supreme Court if no writ is granted and $750.00 if the writ is granted, is fully supported by the evidence, and certainly the findings are not excessive for the services required.

The question as to whether or not attorney’s fees on appeal are authorized by the statute presents a more difficult question. The only guideline appearing in the statute is that the fees must be reasonable in relation to the amount of work expended. Since the statute does not limit in any way “the amount of work expended,” we assume the Legislature must have intended to include all work expended. If all work expended is included, then it must' necessarily include the work expended on appeal, since that work is just as essential to the recovery as is the work in the trial Court. We believe such conclusion to be consistent with the holding in International Security Life Insurance Company v. Spray, 468 S.W.2d 347 (Tex.1971). In that case, the Court permitted recovery of attorney’s fees in a suit under the Insurance Code, which provides for recovery of the amount of loss plus a 12% penalty “together with reasonable attorney fees for the prosecution and collection of such loss.” In reaching that result, the Court said:

“The statute provides for recovery of reasonable attorney fees which the insured must pay to his attorney because of the necessity of pursuing legal action to collect the loss covered by the policy. The purpose of the statute would be defeated if only the fees incurred in the trial court were recoverable and the fees incurred during the appeal remained the expense of the policyholder. No such distinction or limitation may be found in Article 3.62. When it imposes liability on the company for ‘reasonable attorney fees for the prosecution and collection of such loss,’ it includes all fees incurred for that purpose.”

In this ease, the judgment for such fees on appeal is conditioned upon such an appeal being perfected both to the Court of Civil Appeals and the Supreme Court of Texas, and the judgment follows the direction of Justice Reavley in the Spray case in allocating the fee only if the additional work is actually done. Finding no error with regard to the award of attorney’s fees for the appellate work, Points of Error X, XI, and XII are overruled.

The next three points of error are not assigned as error in the motion for new trial other than by reference to Appellant’s requested instructions to the jury and Appellant’s Motion for Instructed Verdict, and the motion recites that the instructions and the motion are incorporated by reference thereto for all purposes. As previously noted under the holding in Wagner v. Foster, supra, such assignment is insufficient and the points of error may not be considered.

The last point of error complains of error upon the part of the trial Court in awarding the dealer indemnity over and against this Appellant, who was the importer of the vehicle involved in the fire. On this issue, both the importer and the dealer center their arguments around the decision in Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949). In Heil Company v. Grant, 534 S.W.2d 916 (Tex.Civ.App.—Tyler 1976, writ ref’d n.r.e.), the Court followed the Austin Road Co. case and pointed out that when joint tort-feasors are not equally guilty, although both are liable to a third party, as between themselves the blameless should be allowed indemnity. Under such a rule, the dealer in this case argues that it is entitled to indemnity since it was furnished a vehicle by the importer with a manufacturing defect, which in no way resulted from any conduct upon the part of the dealer. We conclude that such line of cases is not controlling where the cause of action, under which the original recovery has been permitted, is a statutory right created by the Legislature. In our case, there has been no finding of negligence upon the part of either party, nor have the usual issues in a strict liability case been submitted to the jury. Instead, the cause of action arises under a consumer protection statute and from a failure to comply with a warranty. The Legislature, in creating the cause of action, did not address itself to the issue of indemnity in cases such as the one now before the Court. For us to grant such a right would be to write into the statute a right which the Legislature did not provide. Accordingly, we conclude that the right does not exist, and Point of Error XVI is sustained.

That part of the judgment providing that Volkswagen of America indemnify Bob Hoy Volkswagen of El Paso is reversed and rendered, and the judgment is otherwise affirmed.

PRESLAR, C. J., not sitting.

ON MOTION FOR REHEARING

OSBORN, Justice.

The Appellant, Volkswagen of America, Inc., urges in its motion for rehearing that we erred in affirming the trial Court’s judgment because there was no evidence of a manufacturing defect at the time the vehicle left the control of Appellant. It cites McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Jack Roach-Bissonnet, Inc. v. Puskar, 417 S.W.2d 262 (Tex.1967); and Technical Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex.1972). All of those cases were decided under the rule in Restatement (Second) of Torts, Sec. 402A (1965), and are not applicable in this case where Appellant gave a warranty “* * * for twelve months after the date of delivery * * *” to the customer, and liability is based upon the Texas Deceptive Trade Practices—Consumer Protection Act and not the Torts strict liability rule.

With regard to the testimony of Mr. Ray Sides, some of which was quoted in our original opinion, Appellant notes that Mr. Sides indicated there were three basic ways in which the fire could have started, and that this evidence was not rebutted. Testifying that something could have occurred is no evidence that it did occur. Johnston Testers v. Rangel, 435 S.W.2d 927 (Tex.Civ.App.—San Antonio 1968, writ ref’d n.r.e.). The witness’ testimony with regard to the carburetor defect was not that it could have occurred but that it did, in fact, occur and was the cause of the fire. He did not testify that any of the other three ways in which the fire could have occurred did, in fact, occur.

Appellant also suggests we erred in failing to consider certain points of error, which we concluded had not been properly assigned as error in the trial Court. He states in his motion for rehearing: “* * * if this Honorable Court felt that this Appellant’s statement of the point of error was confused or uncertain, then it could have required the matter to be re-briefed pursuant to Rule 422 T.R.C.P.” From such argument, we conclude counsel has misconstrued our opinion. We did not refuse to consider any point or argument because the same was defective or not properly briefed. We did so only because the point had not been assigned as required by the Rules of Civil Procedure. No amount of rebriefing can cure a failure to properly assign error in the trial Court.

We have considered all of the Appellant’s points in the motion for rehearing, and the motion is overruled.

Bob Hoy Volkswagen of El Paso, Inc., urges in its motion for rehearing that it was entitled to indemnity against the importer who gave a written warranty. We conclude that Bob Hoy Volkswagen of El Paso, Inc., as a seller, under the Uniform Commercial Code, gave an implied warranty of fitness of the product sold, and Section 17.-50(a)(2), Tex.Bus. & Comm.Code, permits recovery for a failure to comply with both an express and an implied warranty. Thus, the Appellee, Licht, was entitled to recover under the statute against the importer for breach of its express warranty and against the seller for breach of its implied warranty. As noted in our original opinion, the legislature has not provided for indemnity between such wrongdoers and we may not add to the statute so as to provide for indemnity. The motion for rehearing of Bob Hoy Volkswagen of El Paso, Inc., is overruled.

PRESLAR, C. J., not sitting.