author: McGEE, Justice.

text:
    UNITED MEXICAN STATES, Relator, v. Honorable Calvin ASHLEY, Judge, et al., Respondent.
    No. B-6853.
    Supreme Court of Texas.
    Oct. 5, 1977.
    Rehearing Denied Nov. 16, 1977.
    Denning E. Schattman and Michael D. Schattman, Murad, Wilemon & Henningan, Jerry Murad, Fort Worth, for relator.
    Eugene Sherrod, Jr., Clifford A. Bridwell, Wichita Falls, for respondent.
   McGEE, Justice.

This is an original mandamus brought by the United Mexican States (Mexico), a sovereign nation, against the Honorable Calvin Ashley, district judge. This mandamus was sought as the result of a suit filed by C. J. Brannan against Mexico concerning lands allegedly expropriated by Mexico without compensation. Mexico contends that the district court had no jurisdiction and should have dismissed the suit; Brannan disputes this contention.

Brannan filed suit against Mexico on December 10, 1976, alleging that he was the owner of two ranches in Mexico which had been expropriated by Mexico in 1963 and 1967. In Brannan’s original petition he stated that Mexico, a foreign sovereign, had property located within Texas. On December 10, 1976, Brannan made application for writ of attachment in the district court, which was granted the same day. The property sought to be attached was a collection of pre-Columbian artifacts held by a United States Marshal and claimed as the property of Mexico. Service of citation was made on Honorable Enrique Vasquez, Consul of Mexico, on December 14, 1976.

On December 22, 1976, Brannan filed a motion in the United States District Court for the Western District of Texas seeking to establish a lien by attachment on the pre-Columbian artifacts which had been used as evidence in a criminal case in that court. Brannan’s motion also stated that he knew of no other property situated in the State of Texas upon which attachment could be levied. There is nothing in this record showing what ruling, if any, the federal district court made on Brannan’s motion.

On January 6,1977, Mexico filed a special appearance in Judge Ashley’s court, stating that in all cases affecting foreign consuls, suits could not be brought in a state court. The special appearance also stated that because Brannan’s petition was a complaint against the sovereignty of lands located in Mexico, it constituted a direct attack against Mexico’s sovereignty and could not be brought in state or federal court.

Brannan served the Mexican Consul with written interrogatories on February 16, 1977, which Mexico has refused to answer. On February 17,1977, Mexico filed an additional special appearance stating that its consul, Enrique Vasquez, could not accept service of process by a Texas court. Bran-nan then served the Mexican Consul with requests for admissions on April 11, 1977. Mexico later objected to the interrogatories and requests asserting that it did not need to answer them because they did not pertain to the question of whether the district court had jurisdiction to hear the suit. Subsequently Brannan filed a motion to compel answers to the interrogatories and to deem the requests admitted. Mexico then filed a motion to dismiss the suit, an objection to the district court’s jurisdiction, and requested a hearing on the matter of jurisdiction. Mexico never filed a motion to quash the service made upon Vasquez or a motion contesting the attachment of the property.

The district court heard all pending motions on June 3, 1977. On June 7,1977, the district court entered an order stating that it had jurisdiction of the cause. The court overruled Mexico’s motion to dismiss, its objection to jurisdiction, and its objection to the requests and written interrogatories. The court granted Brannan’s motion to compel answers to his interrogatories and conditionally granted Brannan’s motion to deem the requests admitted.

Mexico brings this case as a mandamus because, in effect, its motions for special appearance were overruled by the action of the trial court. The order which overruled the special appearances cannot be appealed; therefore, it was necessary for Mexico to bring this cause as a mandamus. Carpenter Body Works, Inc. v. McCulley, 389 S.W.2d 331 (Tex.Civ.App.—Houston 1965, writ ref’d), cert. denied, 382 U.S. 979, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966).

Brannan contends that the doctrine of sovereign immunity is not an absolute jurisdictional bar to the suit and argues that the doctrine applies only to the merits of a case. In summary, Brannan argues that the trial court has jurisdiction to consider this case and the defenses of sovereign immunity and act of state would not operate as a bar to the suit at this stage in the proceedings.

We hold that the doctrine of sovereign immunity applies to this case and bars Brannan’s suit against Mexico in the courts of Texas. Under the doctrine of sovereign immunity, a foreign sovereign is immune from suit absent its consent to be sued. The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812). Sovereign immunity has been modified and it has been stated that “restrictive sovereign immunity” is now the law in the United States. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 703, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976); see Mexico v. Hoffman, 324 U.S. 30, 35-36, 65 S.Ct. 530, 89 L.Ed. 729 (1945); Ex parte Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 714 (1943). The doctrine of restrictive sovereign immunity denies immunity to sovereigns when the suit arises out of a purely commercial transaction, with the foreign sovereign acting solely in a commercial capacity. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 703, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). The doctrine of restrictive sovereign immunity is inapplicable to this suit because no commercial activity is involved. It is undisputed that the action giving rise to this suit was Mexico’s expropriation of Brannan’s ranches located in Mexico. While expropriation of lands of a Texas citizen by a foreign power is not an activity to be commended, the action is a governmental action and not a commercial activity within the scope of the doctrine of restrictive sovereign immunity. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 704, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). We hold that the restriction placed on the doctrine of sovereign immunity is inapplicable in this case and Brannan’s suit is thus barred.

Mexico also asserts that the act of state doctrine bars this suit. Generally the act of state doctrine provides that courts will not review the validity of executive or legislative acts of a foreign sovereign affecting property within that sovereign’s own borders. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909); Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897).

It is Brannan’s contention that the trial court must ignore the act of state doctrine due to the “Hickenlooper Amendment,” an amendment to the Foreign Assistance Act of 1964, 22 U.S.C., Sec. 2370(e)(2). The Hickenlooper Amendment currently provides:

(2) Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this subsection: Provided, That this subparagraph shall not be applicable (1) in any case in which an act of a foreign state is not contrary to international law or with respect to a claim of title or other right to property acquired pursuant to an irrevocable letter of credit of not more than 180 days duration issued in good faith prior to the time of the confiscation or other taking, or (2) in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court.

Brannan argues that under the Amendment the act of state is no bar to his suit.

We hold that the Hickenlooper Amendment is inapplicable to the facts of this case. Courts have narrowly construed the Amendment and have held it to be inapplicable in situations where property is expropriated by a foreign sovereign, and neither the expropriated property nor its proceeds are in the United States. See Menendez v. Saks & Co., 485 F.2d 1355, 1364, 1372 (2nd Cir. 1973), rev’d on other grounds, Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976); Banco Nacion al de Cuba v. First National City Bank, 431 F.2d 394, 399-402 (2nd Cir. 1970), rev’d on other grounds, 406 U.S. 759, 92 S.Ct. 1808, 32 L.Ed.2d 466 (1972); French v. Banco Nacional de Cuba, 23 N.Y.2d 46, 295 N.Y.S.2d 433, 242 N.E.2d 704 (1968). The facts of this case do not require us to reach the question of whether the sovereign immunity defense would bar a suit that came within the provisions of the Hickenlooper Amendment.

The restriction placed on the doctrine of sovereign immunity, acts of a sovereign in a purely commercial capacity, has now been applied to the act of state doctrine as well. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 695-706, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). While the validity of the restriction is still in doubt, it is undisputed that in expropriating Brannan’s land the acts of Mexico were governmental, not commercial, and the restriction is inapplicable to this suit. See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 724-730, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976) (Marshall, Brennan, Stewart & Blackmun, JJ., dissenting).

We hold that the district court lacked jurisdiction to order Mexico to answer the interrogatories, conditionally deem the requests admitted, and deny Mexico’s motion for dismissal. There was no dispute concerning the facts of this case when Mexico made its motion to dismiss. The action upon which the suit was based was an act of a foreign sovereign, made in its governmental capacity, affecting only property within the foreign sovereign. From the pleadings and the undisputed facts it was evident that Brannan’s suit was barred.

We expect Judge Ashley to withdraw his prior orders and dismiss this cause. A mandamus will issue only if Judge Ashley fails to comply with these directions. The orders concerning the requests for admissions and interrogatories should be withdrawn and the cause dismissed.

STEAKLEY, J., concurs in the result.

      . In United States v. McClain, 545 F.2d 988 (5th Cir. 1977), the Fifth Circuit reversed and remanded the criminal case involving the artifacts to allow the trial court to determine if Mexico owned the artifacts.


source: Caselaw Access Project

author: DALLY, Commissioner. GREEN, Commissioner.

license: Public Domain

text:
    COLLECTION CONSULTANTS, INC., Appellant, v. The STATE of Texas, Appellee. Stella THORNTON, alias Sadie Vance, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53162, 53163.
    Court of Criminal Appeals of Texas.
    May 3, 1977.
    State’s Motion for Rehearing Granted Oct. 5, 1977.
    Appellants’ Motions for Rehearing Denied Nov. 2, 1977.

      Ralph B. Shank, Ivan Irwin, Jr., Robert B. Cousins, Jr., James E. Sutton, Dallas, for appellants.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from convictions for the offense of harassment by the use of a telephone. V.T.C.A. Penal Code, Section 42.07(a)(2). The appellants were prosecuted in a joint trial. The appellant Thornton was alleged to be an agent of the appellant corporation, acting in behalf of the corporation and within the scope of her employment. See V.T.C.A. Penal Code, Section 7.22. The appellant corporation was assessed a fine of $1,000. The appellant Thornton’s punishment is confinement in the county jail for 30 days and a fine of $150; Thornton was granted misdemeanor probation for a period of 180 days.

The appellants have urged four grounds of error, but they have not contended that it was error to prosecute them under a general penal statute when a specific statute was applicable. As unassigned error under Article 40.09, Sec. 13, V.A.C.C.P., we must reverse the convictions because a specific statute prohibits the conduct which the State attempted to allege as an offense and the punishment assessed is greater than that provided by the special statute.

Only a short recitation of the testimony of the complaining witness is necessary. Ervin O. Grice testified that he received several telephone calls from a Sadie Vance representing Collection Consultants concerning a debt Grice allegedly owed Shamrock Oil Company. Grice received the first telephone call at work at 4:00 p.m. on July 15, 1974; he informed Sadie Vance that according to his records he did not owe Shamrock the amount of money they demanded and that he would prove it in court. On July 19, 1974, Grice received six telephone calls from Sadie Vance and two calls from a Gene Thomas of Collection Consultants. On July 22nd Grice received a series of four calls from Sadie Vance. On July 23rd Grice received calls from Sadie Vance at 1:41 p.m., 1:45 p.m., and 1:46 p.m.; at 1:59 p.m. he received a call from a Gene Thomas. Grice recognized the voice of Gene Thomas as the same person who had previously called him as Bob Grant of Collection Consultants. Later in the afternoon on July 23rd Grice received a call from Sadie Vance at 4:00 p.m., a call from Gene Thomas at 4:13 p.m., and two more calls from Sadie at 4:21 and 4:22 p.m. Grice made a tape recording of all the calls he received on July 23rd. Grice testified that he had heard appellant Stella Thornton speak and that her voice was the same voice he had heard on the telephone as Sadie Vance.

The State alleged and the proof shows that the telephone calls were “in connection with the collection of and attempt to collect a debt alleged to be owed by a consumer, namely Ervin O. Grice.” Grice testified that he had purchased gasoline at a Sigmor service station and presented his Texaco credit card. The debt Grice allegedly owed Sharmock Oil Company arose from these purchases.

V.T.C.A. Penal Code, Section 42.07(a)(2), provides:

“(a) A person commits an offense if he intentionally:
“(2) threatens, by telephone or in writing, to take unlawful action against any person and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient or intends to annoy or alarm the recipient;”

An offense under this section is a Class B misdemeanor, with a possible punishment of a fine not to exceed $1,000 or confinement in jail for a term not to exceed 180 days, or both a fine and imprisonment.

Article 5069-11.03, V.A.C.S., which was enacted at the same term of the Legislature as V.T.C.A. Penal Code, Section 42.07(a)(2), provides in part:

“In connection with the collection of or attempt to collect any debt alleged to be due and owing by a consumer, no debt collector may oppress, harass, or abuse any person by methods which employ the following practices:
“(d) causing a telephone to ring repeatedly or continuously or making repeated and continuous telephone calls, with the willful intent to harass any person at the called number.”

An offense under this section is a misdemeanor punishable by a fine of not less than $100 nor more than $500. Article 5069-11.09, V.A.C.S.

It is a well settled rule of statutory construction that when two statutes cover the same subject matter, one general and the other special, the special statute will control. Sheffield v. State, 165 Tex.Cr.R. 354, 307 S.W.2d 100 (1957); Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974); Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975).

Recently this Court held that the State could not successfully prosecute a defendant under a general penal statute when a specific statute was applicable. Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977). In Alejos the defendant was convicted under the general statute for Evading Arrest, defined in V.T.C.A. Penal Code, Section 38.-04. The facts showed that Alejos failed to stop his motor vehicle after a police officer in a marked police car signaled for him to stop by using emergency lights and siren. Alejos contended that he should have been charged under Article 6701d, Section 186, V.A.C.S., which makes it unlawful for a driver of a motor vehicle to flee or attempt to elude a pursuing police vehicle. It was said that Article 6701d, Section 186, V.A.C.S. and V.T.C.A. Penal Code, Section 38.04, may be construed together, and they can be harmonized by giving effect to the special statute when it is applicable to the facts.

In Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958), the defendant was convicted of driving while intoxicated and the jury assessed punishment under the general enhancement statute, Article 62, V.A.P.C. (1925). However, Article 802b, V.A.P.C. (1925), provided the punishment for each and every subsequent conviction for the offense of driving while intoxicated. The Court held that the Legislature had provided by special statute the punishment for subsequent offenses of driving while intoxicated and that the special statute must control over the general enhancement of punishment statute.

V.T.C.A. Penal Code, Section 42.07(a)(2), is a general statute which provides a penalty for threatening to take unlawful action against any person by telephone. Article 5069-11.03, V.A.C.S., provides a different penalty for a debt collector to harass any person by causing a telephone to ring repeatedly or continuously in connection with the collection of or attempt to collect a debt alleged to be owed by a consumer. Under the facts presented here, the appellants can only be charged under Article 5069-11.03, V.A.C.S. Article 5069-11.03, supra, and V.T.C.A. Penal Code, Section 42.07(a)(2) when construed together can be harmonized with the specific controlling over the general statute. The punishment assessed is more than that provided by the special statute.

In the event of further prosecution the State, should replead the offense under the specific provisions of Article 5069-11.03, V.A.C.S.

The judgments are reversed and the causes remanded.

Opinion approved by the Court.

OPINION ON STATE’S MOTION FOR REHEARING

GREEN, Commissioner.

These appeals are from convictions, in a joint trial, for the offense of harassment by the use of a telephone. V.T.C.A. Penal Code, Sec. 42.07(a)(2). Appellant Thornton was alleged to be an agent of appellant Collection Consultants, Inc., acting in behalf of the corporation and within the scope of her employment. See V.T.C.A. Penal Code, Sec. 7.22. Appellant corporation was assessed a fine of $1,000. Thornton’s punishment was confinement in the county jail for 30 days and a fine of $150, the confinement being probated for a period of 180 days.

On original submission, in reversing the judgments we held as follows:

“V.T.C.A. Penal Code, Section 42.07(a)(2), is a general statute which provides a penalty for threatening to take unlawful action against any person by telephone. Article 5069-11.02, V.A.C.S., provides a different penalty for a debt collector to harass any person by causing a telephone to ring repeatedly or continuously in connection with the collection of or attempt to collect a debt alleged to be owed by a consumer. Under the facts presented here, the appellants can only be charged under Article 5069-11.03, V.A.C.S. Article 5069-11.03, supra, and V.T.C.A. Penal Code, Section 42.07(a)(2) when construed together can be harmonized with the specific controlling over the general statute. The punishment assessed is more than that provided by the special statute.”

By its motion for rehearing, the State requests that we reconsider the statutes as applied to “the facts presented here.”

The opinion on original submission gives a short recitation of applicable testimony of the complaining witness Grice. We adopt that recitation, and add thereto the following:

Grice testified that each time the individual appellant called him she gave her name as Sadie Vance. On each occasion he told her he had paid the debt in question and stated, “I would gladly prove my point in Small Claims or Civil Court.” After testifying of her telephone calls of July 15, July 19, July 22, and July 23 as stated in the original opinion, Grice testified further:

“Q Mr. Grice, once again calling your attention to the calls that were made to you by the person you knew as Sadie Vance, did that person ever admit that she knew that what she was doing was violating the law by continuing to call you?
“A Yes.
“Q What were — How did that come about? In what words?
“A Well, when she’d call me I’d answer the phone and after I found out who it was, I’d tell Sadie that she was not permitting me to do my work and this constitutes harassment of the telephone; and she said, ‘Yeah. I’m going to continue to call you, Mr. Grice, until you send me that check.’
“Q Did she ever tell you or was there ever any conversation between the two of you concerning whether or not she would continue calling you? Whether it was against the law?
“A Would you—
“Q Let me rephrase that. There’s too many whether or not’s.
“A Yeah.
“Q Was there ever a conversation between the two of you concerning her continuing to call you whether or not it was against the law?
“A Yes.
“Q Would you describe that to us, please, sir?
“A Well — uh—I would, like I say, tell Sadie that — uh—uh—I couldn’t get any work done. That — uh—uh— this constitutes telephone harassment.
“She says, ‘Uh-huh. I know this. I’m going to continue to call you until you send me that check, Mr. Grice.’
“Q Did she ever tell you to stop acting like a kid?
“A Yes, she did.
“Q When was this?
“A That was on one of those calls on July 23, 1974.
“Q How did these calls affect you, Mr. Grice, if they did?
"A Well, it was — I was — it was pretty embarrassing with the office mates sitting there and you hang up the phone, and you have a lady calling you and you can’t really say that much with the exception of — uh—uh —you’re harassing me. I don’t really want to talk to you. And, I wasn’t really able to get my work done.
“I couldn’t work efficiently with the telephone ringing constantly.”

The information in the case against the individual appellant alleged that on or about July 23,1974, in Harris County, Stella Thornton alias Sadie Vance

“did then and there unlawfully intentionally threaten by telephone to take unlawful action against Ervin O. Grice, in that the said Defendant, in connection with the collection of and attempt to collect a debt alleged to be owed by a consumer, namely Ervin 0. Grice, did intentionally and knowingly threaten to cause a telephone to ring repeatedly and continuously and did make repeated telephone calls, and said unlawful action was done with the intent to harass Ervin 0. Grice, at the called number and by this action did intentionally and knowingly annoy and alarm and intend to alarm the recipient, Ervin 0. Grice . . .

The information against the corporate appellant alleged the commission of the offense by the corporation by “Stella Thornton alias Sadie Vance, an agent of the said Defendant, acting in behalf of the said Defendant and within the scope of her employment.” See V.T.C.A. Penal Code, Sec. 7.22. The evidence establishes that the individual appellant was acting within the scope of her employment as an agent of the corporate appellant.

V.T.C.A. Penal Code, Sec. 42.07, Harassment, in its pertinent parts provides:

“(a) A person commits an offense if he intentionally:
* * * * * *
“(2) threatens, by telephone or in writing, to take unlawful action against any person and by this action intentionally, knowingly or recklessly annoys or alarms the recipient or intends to annoy or alarm the recipient;
⅜ * * * * *
“(b) An offense under-this section is a Class B Misdemeanor.”

Punishment for a Class B misdemeanor is a fine not to exceed $1,000, or confinement in jail for a term not to exceed 180 days, or both such fine and imprisonment. V.T.C.A. Penal Code, Sec. 12.22.

The elements of Sec. 42.07(a)(2) are

“(1) a person
“(2) intentionally threatens
“(3) by telephone or in writing
“(4) to take unlawful action against any person
“(5) thereby intentionally, knowingly or recklessly annoys or alarms the recipient
“(6) or intends to annoy or alarm the recipient.”

Art. 5069-11.03, V.A.C.S., enacted at the same term of the Legislature as Sec. 42.07, supra, provides in its pertinent part:

“In connection with the collection of or attempt to collect any debt alleged to be due and owing by a consumer, no debt collector may oppress, harass, or abuse any person by methods which employ the following practices:
“d. Causing a telephone to ring repeatedly or continuously or making repeated and continuous telephone calls with the intent to harass any person at the called number.”

An offense under this article is a misdemeanor punishable by a fine of not less than $100 nor more than $500. Art. 5069-11.09, V.A.C.S.

The elements of the above offense are:

“(1) In connection with the collection or attempt to collect an alleged debt due and owing
“(2) a debt collector
“(3) may not oppress, harass or abuse any person
“(4) by causing a telephone to ring repeatedly or continuously
“(5) or by making repeated and continuous telephone calls
“(6) with the intent to harass the person called . . . ”

Section 42.07(a)(2) of the Penal Code, supra, is general in nature, in that it applies to all threats by telephone or in writing to take unlawful action against any person, thereby intentionally, knowingly, or recklessly annoying or alarming or intending to annoy or alarm the recipient. The offense consists primarily of the threats to take unlawful action. Art. 5069-11.03, V.A.C.S., on the other hand, does not concern threats; it specifically makes it unlawful for a debt collector to harass any person by causing a telephone to ring repeatedly or continuously in connection with the collection of or attempt to collect a debt alleged to be owed by a consumer. The unlawful action which appellant Thornton threatened to take was to harass Grice by making repeated and continuous telephone calls until he paid the debt he told her he did not owe.

For a thorough explanation of statutes being either in or not in pari materia, see this Court’s opinion on rehearing in Alejos v. State, Tex.Cr.App., 555 S.W.2d 444 (1977). See also Jones v. State, Tex.Cr.App., 552 S.W.2d 836; Cuellar v. State, Tex.Cr.App., 521 S.W.2d 277; Hines v. State, Tex.Cr.App., 515 S.W.2d 670; 53 Tex.Jur.2d Statutes, Sec. 186, p. 280; Art. 5429b-2, Sec. 3.06, V.A.Civ.St. (Code Construction Act); V.T.C.A. Penal Code, Sec. 1.05(b). After holding the two statutes there involved not to be in pari materia, the opinion on rehearing in Alejos continues:

“Arguably under the facts of the instant case, the State could have prosecuted and successfully proved the elements of either § 186 of Article 6701d, supra, or § 38.04 of the Penal Code. Appellant in a motor vehicle refused to obey the signal of a uniformed police officer in a marked police vehicle to stop his car. That was a violation of said § 186 without regard to whether the officer was attempting to make an arrest. However, in doing so, appellant also fled from an officer who had probable cause to arrest. This was a violation of said § 38.04 without regard to whether appellant was driving a vehicle when doing so or whether the officer was in uniform, etc. A similar situation could arise where the State prosecutes for burglary and the defendant urges that the prosecution should be for criminal trespass.”

The prosecution of the instant case was for threats made by appellants which were proscribed by V.T.C.A. Penal Code, Sec. 42.07, supra. The primary function of Art. 5069-11.03 V.A.C.S., as applied to the facts of the instant case, is that it made unlawful the action which appellants threatened to take against complainant. The State was authorized to carve as large an offense from the transaction as it could, provided it cut only once. Alejos v. State, supra (on rehearing); Ex parte Jewel, Tex.Cr.App., 535 S.W.2d 362. We conclude that the State properly exercised its option as to which offense it sought to prosecute.

We now consider appellants’ four grounds of error.

In their first ground, appellants contend V.T.C.A. Penal Code, Sec. 42.-07(a)(2) is unconstitutional in that it violates the First Amendment of the United States Constitution and also that it fails to meet the requirements of the Due Process Clause of the Fourteenth Amendment because the use of the terms “annoy” and “alarm” is vague and standardless.

Article 476, V.A.P.C., repealed by the Legislature in 1973, was the predecessor to V.T.C.A. Penal Code, Sec. 42.07. That Article in its pertinent part provided:

“Whoever . . . uses any telephone in any manner with intent to harass, annoy, torment, abuse, threaten or intimidate another, except if such call be for a lawful business purpose, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not less than one (1) month nor more than twelve (12) months, or by both such fine and imprisonment.”

In Schuster v. State, 450 S.W.2d 616, this Court, speaking through Judge Onion, stated:

“The conviction is for violation of Article 476, Vernon’s Ann.P.C., with punishment assessed at a fine of $200.00.
“In her sole ground of error appellant challenges the constitutionality of Article 476, supra. In Alobaidi v. State, Tex.Cr.App., 433 S.W.2d 440, this Court in an opinion by Presiding Judge Woodley upheld the constitutionality of said statute. We adhere to that decision. See also LeBlanc v. State, Tex.Cr.App., 441 S.W.2d 847. As we view it, such statute is not violative of the First Amendment, United States Constitution or Article 1, Sec. 8, Texas Constitution, Vernon’s Ann. St.”

In LeBlanc v. State, supra, the contention that Art. 476, V.A.P.C., was void as being too vague and indefinite was overruled, and the constitutionality of the statute in that respect was upheld.

We fail to find any meaningful distinction between the language in Art. 476, V.A.P.C., supra, and the language in Sec. 42.-07(a)(2) here complained of which could affect the validity of Sec. 42.07(a)(2) under the right of Free Speech Amendment or cause the statute to fail to give to a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. See Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The first ground of error is overruled.

In their second ground, appellants contend the court erred in requiring appellant Thornton to give “testimonial evidence” in violation of her rights under the Fifth Amendment to the United States Constitution and Art. 1, Sec. 10, of the Texas Constitution.

Grice, the complaining witness, testified he would recognize the voice of the person who continuously harassed him over the telephone. In the absence of the jury, the court required Thornton, over appellants’ objection, to repeat in Grice’s presence the following:

“I know I’m breaking the law, and I will continue to call you on your job. I’m going to keep calling you until this bill is paid.”

In the jury’s presence, Grice identified appellant Thornton’s voice as being the voice of the person who had made the telephone calls.

In McInturf v. State, Tex.Cr.App., 544 S.W.2d 417, this Court held that no constitutional error was committed when the trial court required the defendant to speak in the presence of prosecutrix, and in absence of the jury, for identification purposes. We quoted with approval from Moulton v. State, 486 S.W.2d 334, 337, as follows:

“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 1, Section 10 of the Constitution of this state, Vernon’s Ann. St., Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972).”

See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

Appellants’ second ground of error is overruled.

In ground three appellants complain the following remarks concerning appellant’s payment by commission for collecting overdue debts constituted improper jury argument.

“What’s her motivation? Money. These people are bounty hunters.”

Appellants’ objection to the remarks was sustained, and the court instructed the jury to disregard the comments. Appellants made a request for a mistrial. A conference between the attorney and the court ensued, and, following the conference, appellants failed to secure a ruling on his motion for mistrial. Appellants’ failure to secure an adverse ruling on his motion for mistrial preserves nothing for review. Bailey v. State, Tex.Cr.App., 532 S.W.2d 316; Cain v. State, Tex.Cr.App., 549 S.W.2d 707. Further, the trial court’s instruction to disregard the complained of remarks removed the harmful effects thereof, if any. Spaulding v. State, Tex.Cr.App., 505 S.W.2d 919; Ramos v. State, Tex.Cr.App., 419 S.W.2d 359.

Ground of error three is overruled.

Appellants in their fourth ground complain of the court’s limitation of the time in which to obtain an expert to examine a recording tape read in evidence.

In a pre-trial session appellants’ motion for discovery was presented and ruled upon. On the day of the trial the State filed a trial brief supporting the admission of taped recorded evidence. The following day the tapes were offered and played to appellants and their counsel in the absence of the jury.

Thereupon, the following proceedings occurred:

“MR. COUSINS (Appellant’s Attorney): Your Honor, at this time we renew our Motion for Discovery.
“We request the Court, as part of our Motion for Discovery on January 10th, to the effect of it to allow this tape to be examined by an expert of our own choosing, in accordance with the law, within the presence of those members of the District Attorney’s staff and the State so directed also.
“THE COURT: All right, gentlemen. You have one hour. I assume you have him ready?
“MR. COUSINS: I’m making my Motion for Discovery, Your Honor. I do not have him ready.
“THE COURT: How long do you think it will take, Counsel?
“MR. COUSINS: It will take longer than an hour and a half.
“THE COURT: You were aware of the possibility of this evidence being considered yesterday. You will be given until 1:30, between this time and that; and the Record can show it is now 12:15— 12:14.
“The State will make Exhibit 11 available to the Defense for examination by an expert of their choosing.
“MR. ARNOLD (State): Your Honor, for the Record, may we have a designated place?
“THE COURT: In these Chambers.”

After the expiration of the time allowed by the court the appellants again moved for “a continuance and for discovery to allow for the process testing of the tape stating that such testing would take longer than one and one-half hours.” Their motion was denied, and appellants excepted to the ruling of the court.

The record reflects that the State’s trial brief filed the first day of the trial alerted appellants of the existence of the tape recording and the State’s intention to offer it in evidence. Appellants’ request on the following day for more time and further discovery under Art. 39.14, V.A.C.C.P., was not diligently made, and under the circumstances shown, the court did not abuse its discretion in denying appellants’ motion, based only upon equitable grounds, and refusing to delay the trial and give appellants additional time to test the tapes. Freeman v. State, Tex.Cr.App., 556 S.W.2d 287 (1977); Chance v. State, Tex.Cr.App., 528 S.W.2d 605; Ward v. State, 520 S.W.2d 395.

Further, appellant cross-examined the witness Grice, who testified concerning the tape recording, at great length about the tapes and his identification of Thornton’s voice, and no prejudice to appellants is reflected by the record or shown or attempted to be shown in their brief. No testimony was offered and no contention was made at the hearing on appellant’s motion for new trial to indicate harm resulting from the failure to grant appellants request for further time to review the tapes.

Reversible error is not presented, and the fourth ground of error is overruled.

The State’s motion for rehearing is granted.

The judgments are affirmed.

Opinion approved by the Court.

      . The opinion in the instant case on original submission cited as authority for its decision this Court’s original opinion in Alejos delivered prior to the granting of the State’s motion for rehearing and affirmance of the judgment in that case.

      . Appellants do not complain of any ruling made at this pre-trial hearing. Their complaint is to the court’s refusal to grant their motion for continuance and discovery made during the trial, as stated infra.


author: PHILLIPS, Judge. DOUGLAS, Judge,

text:
    Eddie ESCAMILLA, Appellant, v. The STATE of Texas, Appellee.
    No. 53660.
    Court of Criminal Appeals of Texas.
    May 18, 1977.
    State’s Motion for Rehearing Denied Nov. 2, 1977.
    Frank Steelman, Bryan, for appellant.
    W. T. McDonald, Jr., Dist. Atty. and J. Bradley Smith, Asst. Dist. Atty., Bryan, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s, Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

The offense is burglary of a vehicle; the punishment, enhanced under V.T.C.A., Penal Code, Sec. 12.42(a), 15 years.

In a per curiam opinion delivered January 12, 1977, this appeal was dismissed because the record did not show appellant’s motion for new trial was overruled prior to pronouncement of sentence. A supplemental transcript reveals the motion for new trial was overruled and the sentence was therefore timely. The appeal is reinstated.

Appellant challenges, among other things, the sufficiency of the evidence and the admission of evidence concerning a blood sample taken from appellant.

The complaining witness, Bessie Tamez, testified she went to Ted’s Place in Bryan about 10:00 p. m. June 26, 1975. She parked her pickup truck across the street, locking the doors, and she left her purse on the seat. About 10:30 p. m. she returned to the truck and noticed the vent window had a hole in it; her purse was missing, and there was glass on the seat. A rock, a blue polka dotted handkerchief or bandana, and a stick about 21 inches long were found in the truck. The door on the driver’s side could not be unlocked because the point of a knife had been broken off in the lock.

Roy Veracruz, an employee of Ted’s Place, testified he escorted Mrs. Tamez back to the pickup and then flagged down a police officer. While the officer was taking down the information, Mr. Veracruz saw appellant and a couple of his friends enter the El Conquistador Club. He told the officer the handkerchief might belong to appellant because he had noticed a blue polka dotted handkerchief sticking out of appellant’s pocket about 4:30 that afternoon while appellant was in Ted’s Place. Witness Veracruz testified appellant had left the bar about 4:40 and returned about 9:00 or 9:30, leaving about 9:45 or 9:50. Veracruz did not notice whether appellant had the handkerchief when he returned that evening.

Officer Fickey of the Bryan Police Department was investigating the burglary when Mr. Veracruz directed his attention to appellant. As Officer Fickey entered the club, appellant saw him and put his head down on his elbows. Officer Fickey asked appellant to step outside and talk with him and appellant asked why, and then said he wouldn’t go. Officer Fickey grabbed appellant’s right wrist and noticed there was blood on his hand from appellant’s arm. Appellant was placed under arrest for pub-lie intoxication. Appellant was taken to the hospital for treatment of his arm, and he told Officer Fickey he was cut by a knife at another bar when some guys jumped him and tried to take his money.

An investigation of the scene revealed a trail of blood leading from the complainant’s truck to a dumpster on the corner. There were four patches of blood on the handkerchief. Witness Williams, a forensic serologist with the Dallas County Criminal Investigation Laboratory, testified the blood on the handkerchief was type A, Rh positive M&N, and that this was the same type blood as appellant’s. She further stated only nine percent of the population has blood of this type.

There were no fingerprints lifted from the pickup truck and the contents of the complainant’s purse were not recovered. The appellant offered no evidence at the guilt stage of the trial.

Detective Miller testified that on October 3, 1975, he, appellant, appellant’s attorney and the assistant district attorney went to the Brazos County Health Unit where a registered nurse took blood from appellant. This action was taken pursuant to an order of the court entered October 2, granting the State’s motion to obtain a blood sample under Rule 167a, Tex.R.Civ.P.

The State’s motion alleged appellant was charged with burglary of a vehicle, that his blood type would be in controversy, and that it was necessary to obtain a sample of his blood to determine whether his blood was the same as that found on a handkerchief in the burglarized vehicle.

The court’s order directed appellant to submit to all procedures necessary to obtain a blood sample, and Dr. Buck of the County Health Department was ordered to obtain blood by use of medically approved procedures. Sheriff Hamilton was ordered to cause appellant to be made available to Dr. Buck and to assist the doctor in complying with the order.

Appellant contends the evidence concerning the blood test should have been suppressed because this constituted a search of the person and the search was conducted without consent and in violation of Art. I, Sec. 9, of the Texas Constitution.

On December 9, 1975, appellant filed a motion to suppress evidence obtained from an illegal search alleging (1) the taking of his blood was in violation of the Fourth and Fifth Amendments of the U.S. Constitution and (2) taking blood is a search and there was no sworn affidavit showing probable cause as required by Art. 1.06, V.A.C.C.P. A hearing was held on the motion on January 9, 1976, and the motion to suppress was denied on January 12, the same day the case came to trial. Although the testimony of the hearing on the motion to suppress was not made a part of the record on appeal, the question has been preserved for review. Graves v. State, Tex.Cr.App., 513 S.W.2d 57; Riojas v. State, Tex.Cr.App., 530 S.W.2d 298. Cf. Writt v. State, Tex.Cr.App., 541 S.W.2d 424.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), involving a conviction for driving while intoxicated, the Supreme Court rejected the argument that withdrawal of a sample of the accused’s blood and receipt of evidence of a chemical analysis of the blood violated the self incrimination clause of the Fifth Amendment. However, the Court further stated:

“But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment . It could not reasonably be argued . . . that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of that Amendment.
* * * * * *
We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber at pages 767-768, 86 S.Ct. at page 1834.

In holding the defendant’s Fourth Amendment right to be free of unreasonable searches and seizures was not violated in that case, the Supreme Court found that, although the arresting officer did not have an arrest or search warrant, he did have probable cause and he might reasonably have believed the situation was an emergency and there was not time to seek out a magistrate and secure a warrant. “Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” Id. at page 771, 86 S.Ct. at page 1836. The Court also found the test chosen to measure the blood alcohol level was a reasonable one and was performed in a reasonable manner.

We hold the taking of a blood sample is a search and seizure within the meaning of Art. I, Sec. 9 of the Texas Constitution, thus the State was required to comply with the provisions of Art. 1.06 and Chapter 18, V.A.C.C.P.

The State’s “motion for permission to obtain a sample of defendant’s blood” does not meet the requirements of an affidavit upon which a search warrant may issue. Assuming an allegation that an accused has been indicted is a sufficient showing of probable cause, the motion is not sworn to. See Art. 1.06 and Art. 18.01(b), V.A.C.C.P. Further, the court’s order does not meet the requirements of a search warrant under Art. 18.01, supra. See Poindexter v. State, Tex.Cr.App., 545 S.W.2d 798. We note that a search warrant issued to seize blood would be an invalid warrant, as blood is not one of the items for which a search warrant may issue under Art. 18.02, V.A.C.C.P.

The State contends appellant consented to the blood test, relying on the testimony of Detective Miller that shows appellant assisted the nurse in finding a vein from which to draw blood.

Consent to search must be shown to be positive and unequivocal and the burden is upon the State to show by clear and convincing evidence that the consent was freely and voluntarily given. Allen v. State, Tex.Cr.App., 487 S.W.2d 120. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Kolb v. State, Tex.Cr.App., 532 S.W.2d 87; Evans v. State, Tex.Cr.App., 530 S.W.2d 932.

The record shows appellant was in custody at the time of the blood test, although he had been released on a $1500 bond. Ex parte Trillo, Tex.Cr.App., 540 S.W.2d 728. Detective Miller testified he did not remember whether appellant gave consent, but he did remember “there was no hassle about it.” Witness Miller further testified:

“Q [DEFENSE COUNSEL] Did he have a choice as to whether or not he gave blood?
A Yes, sir, he could have resisted or argued about it. He did not.
Q You mean, if he had argued, you all would not have taken the blood, with a signed Court Order?
A Yes, sir, with a signed Court Order, we would have taken the blood.
Q Did you have a signed Court Order?
A Yes, sir.
* * * * * *
Q With a Court Order, did Mr. Escamil-la have a choice?
A He did not really have any choice, but he did not resist violently or offer any argument.”

Under these circumstances, we find appellant did not consent to the blood test. Further, the search was not incident to arrest and was not conducted under emergency or exigent circumstances. Cf. Perez v. State, Tex.Cr.App., 514 S.W.2d 748.

Thus, the search of appellant’s person and the seizure of the blood were not authorized by Art. I, Sec. 9 of the Texas Constitution and the results of the blood test were erroneously admitted.

We also find the evidence insufficient to support the conviction. Although appellant was present at Ted’s Place 10 to 15 minutes before the complainant’s arrival, he was not seen around or near the pickup truck. Cf. Chenault v. State, Tex.Cr.App., 494 S.W.2d 540; Ewing v. State, Tex.Cr.App., 400 S.W.2d 911. The only evidence which connects appellant with the crime is his possession five and one-half hours before the offense of a handkerchief similar to a handkerchief found in the truck after the illegal entry and the presence of blood on the handkerchief and on appellant’s arm shortly after the offense.

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

DOUGLAS, J., dissents.

DOUGLAS, Judge,

dissenting on State’s motion for rehearing.

The majority overrules the State’s Motion For Rehearing without written opinion. It holds that the extraction of a sample of appellant’s blood pursuant to an order of the district court was in violation of Article 1, Section 9 of the Texas Constitution, and that there was at the time it was taken no statutory authority for the taking of the sample. In so doing, the majority holds that a district court order under a rule approved by the Legislature was unreasonable and that the taking of a sample of blood from appellant was unreasonable.

The majority reasons that the extraction of blood is a search and seizure within the meaning of Article 1, Section 9, and that as such, it cannot be performed in the absence of a search warrant issued in compliance with the provisions of Articles 1.06 and 18.02, V.A.C.C.P. In one breath, the Court asserts that the State must have complied with Article 18.02, supra, and in the next it observes that such compliance is impossible in that blood is not an item for which a search warrant may issue.

Article 1, Section 9 of the Texas Constitution states that “[t]he people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches . . . .” (Emphasis supplied) This section has never been held to constitute a guarantee against all searches and seizures, Vargas v. State, 542 S.W.2d 151 (Tex.Cr.App.1976), but only against those in which the citizen’s expectation of privacy is unreasonably intruded upon. The majority opinion engages in the assumption that because the extraction of blood is a search and seizure, a warrant is necessarily to be obtained. Such is not the case. The Interpretive Commentary to Article 1, Section 9 points out: “The fact that Section 9 lays down certain requirements for issuing search warrants does not, however, mean that a warrant is indispensable to the existence of a valid search and seizure. Searches and seizures prohibited without a warrant are those which are unreasonable.”

Appellant was charged with burglary of a vehicle. Some months after the crime was committed, the State filed a motion under Rule 167a, Texas Rules of Civil Procedure, alleging that it was necessary to secure a sample of his blood to determine whether his blood type was identical to that discovered on a handkerchief in the burglarized vehicle. Rule 167a provides that when the mental or physical condition, including the blood group, of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician upon a showing of good cause and notice to the person to be examined.

The evidence establishing probable cause to grant the order for the blood test will be summarized. On the afternoon of June 26, 1975, prior to the commission of the offense, appellant was seen carrying a blue polka dotted handkerchief in his pocket. At the time of his arrest later that evening he no longer had the bandana in his possession and Officer Fickey observed blood on the appellant’s right wrist. On the floorboard of the burglarized vehicle, whose vent window had been broken, a blue polka dotted bandana like the one appellant had been carrying earlier was found. The handkerchief was blood stained. Appellant was taken to a Bryan hospital for treatment where the examining physician determined that the cut on his arm was fresh. Ample justification existed for determining whether appellant’s blood type matched that of the blood on the handkerchief in the burglarized truck.

Appellant was taken to the Brazos County Health Unit by Detective Ronnie Miller pursuant to the order of the district court. He was at all times accompanied by his attorney. At the Health Unit, a blood sample was drawn from the appellant by a registered nurse in accordance with acceptable medical procedures. Appellant was not handcuffed or restrained to facilitate the taking of the blood sample, and at no time was he brutalized or physically harmed in any way.

The taking of appellant’s blood sample in this case bears no resemblance to the forcible tactics condemned in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which police choked the accused and pumped his stomach against his will in an attempt to recover morphine capsules which he had swallowed. By contrast, in the present case, every effort was made to afford appellant due process of law, and he was not subjected to force of any kind.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court of the United States established that the extraction of blood constitutes a search and seizure within the meaning of the Fourth Amendment. The language of that amendment must be the starting point for analysis. It provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis Supplied)

In the relatively narrow area of the law of body intrusions, there are three precedents. Rochin v. California, supra; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and Schmerber v. California, supra. These cases reveal that forcible removals oUpvidence from the body by stomach pumping are unconstitutional, while extractions of blood samples, though not assented to, may not be.

Schmerber is the leading case. There, defendant was convicted for driving while intoxicated. The Court found that the war-rantless, nonconsensual withdrawal of his blood was not an unreasonable search because the arresting officer had probable cause and because that officer reasonably believed there was no time to secure a warrant.

The Court wrote:

“We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” 86 S.Ct. at 1836.

There was no court order in Schmerber.

In Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), this Court held that compelling a handwriting exemplar or sample does not constitute compelling an accused to “give evidence against himself” in violation of the Texas Constitutional self-incrimination privilege. The Court further held that compelling a blood test, if taken under conditions which comport with due process, does not violate the privilege against self-incrimination. In relying on Schmerber’s discussion of the Fifth Amendment’s relation to blood extractions, the Court reasoned that such tests are non-testimonial in nature and, thus, that the self-incrimination privilege is not implicated under such circumstances. The Fourth Amendment issue was not confronted in Olson.

The Court in Olson did observe that many types of physical evidence are compellable from an accused consistent with the Fifth Amendment. A partial list of those types of evidence follows: fingerprints, examination of the tongue, fingernail scrapings, footprints, requiring an accused to stand at a line up, requiring an accused to raise his hand before the jury, paraffin test, and requiring an accused to put on clothes and speak before the jury.

Those types of physical evidence generally are not subject to challenge on Fourth Amendment grounds for many of the same reasons that the Fifth Amendment is inapplicable: they involve physical attributes normally displayed to the public. No search or seizure is involved.

The trial court has some inherent authority to compel the physical production of evidence. The authority of the trial court to compel an accused to submit to fingerprinting, for example, seems to be implicitly recognized because no valid Fourth or Fifth Amendment claim may be raised. See, e. g. Price v. State, 449 S.W.2d 73 (Tex.Cr.App.1969).

United States v. Crowder, 177 U.S.App.D.C. 165, 543 F.2d 312 (1976), is the leading case which sanctions the surgical recovery of a bullet. Crowder was convicted of murder. A bullet which was surgically removed from his arm proved to be damaging evidence against him. The District of Columbia Circuit Court of Appeals held that Crowder’s Fourth Amendment rights were not violated when the trial court ordered the removal of the bullet. The main focus of the majority opinion concerned the government’s compliance with due process.

In addressing the Fourth Amendment claim, the majority observed that Crowder had been given a full adversary hearing. The trial judge determined that probable cause was established and ordered Crowder to submit to surgery. The order was “carefully drawn and hedged so as to protect Crowder’s health and life. . . .’’ The Court concluded that the order was reasonable under the circumstances and affirmed.

Rule 167a has been approved by the Legislature. A district judge followed that rule in ordering that a sample of appellant’s blood be extracted. The Legislature has subsequently authorized search warrants to be issued for evidence. This follows the rule that already authorizes the taking of a blood sample.

The Court has held in Hernandez v. State, 548 S.W.2d 904 (Tex.Cr.App.1977), that it was not unreasonable for an officer to hold a suspect by the arms while another choked him until he spat up four balloons of heroin.

The Court should hold that it was not unreasonable for a registered nurse to take blood under a court order pursuant to a rule approved by the Legislature.

      . Rule 167a(a) states, “When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

      . See also Ex parte Davis, Tex.Cr.App., 542 S.W.2d 192, where we held a habeas corpus proceeding relating to denial of bail in a capital murder' case is a criminal case and the trial court was not authorized to compel a psychological examination under Rule 167a, Tex.R.Civ.P.

      . Art. 18.02 provides:
      “A search warrant may be issued to search for and seize:
      (1) property acquired by theft or in any other manner which makes its acquisition a penal offense;
      (2) property specially designed, made, or adapted for or commonly used in the commission of an offense;
      (3) arms and munitions kept or prepared for the purpose of insurrection or riot;
      (4) weapons prohibited by the Penal Code;
      “(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;
      (6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;
      (7) drugs kept, prepared, or manufactured in violation of the laws of this state;
      (8) any property the possession of which is prohibited by law;
      (9) implements or instruments used in the commission of a crime.”

      . Article 18.02, V.A.C.C.P., as amended was enacted in Chapter 237, Section 2, at page 640 in 1977 effective May 25, 1977. It now provides for the issuance of search warrants for evidence.


author: BROWN, Commissioner. DOUGLAS, Judge,

text:
    Artis Deryle WHITEHEAD, Appellant, v. The STATE of Texas, Appellee.
    No. 55024.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.
    State’s Motions for Rehearing Denied Nov. 2, 1977.

      Floyd W. Freed, III, Houston, 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

BROWN, Commissioner.

This is an appeal from an order revoking probation.

Upon a plea of guilty to the trial court, appellant was convicted of forgery. Punishment was assessed at ten (10) years in the Texas Department of Corrections. Imposition of sentence was suspended and appellant was placed on probation on August 19, 1975.

Among the terms and conditions of his probation, appellant was to:

“(a) Commit no offense against the laws of this state or any other state or of the United States .
“(d) Report to the Adult Probation Officer of Harris County, Texas, as directed; on the 15th day of September, 1975 and on the 15th day of each month thereafter, during probation .
******
“(g) Remain within the limits of Harris County, Texas, and change place of residence only with permission of the PROBATION OFFICER . .
******
“(i) Pay [his] fine, if one be assessed . and make restitution or reparation in any sum that the court shall determine, to-wit: . . . [thereafter the court listed the amount of payments due]”

On June 11, 1976, the State filed an amended motion to revoke appellant’s probation on the grounds that he had violated the terms and conditions of his probation. A revocation hearing was held, and the trial court entered an order revoking probation on July 16,1976. In its findings of fact and conclusions of law filed July 20, 1976, the trial court found that appellant had failed to report to his probation officer on April 22, 1976, as instructed; that he was $120.00 in arrears in his restitution payments; that on May 6, 1976 he moved from his place of residence without the court’s permission or permission from his probation officer; that he “took without permission from his mother, BONNIE BECKHAM, two checks and cashed them for $45.00 and $50.00.”

In his first ground of error, appellant contends that the trial court abused its discretion in basing its revocation order on the failure of appellant to report to his probation officer. In its order of probation, the court directed appellant to report to the Adult Probation Officer of Harris County on the 15th day of September 1975, and thereafter on the 15th day of each month during the term of probation. There was no requirement that appellant report on any other dates, nor was there any provision in the order permitting the probation officer to require appellant to report more frequently.

The amended motion to revoke probation, however, alleged that appellant had violated the terms of his probation by failing to report on April 22, 1976, and the court sustained a violation on this ground. It appears, however, that appellant was not obligated to report on April 22, 1976, even though Bruce Corbin, appellant’s probation officer, testified that he had heard from another probation officer that appellant had been instructed to report on that date. Since appellant was not obligated to report on that date, the finding by the court that he did not report on that date cannot sustain a finding of a violation of probation conditions by appellant.

In Herrington v. State, 534 S.W.2d 331 (Tex.Cr.App.1976), we held that where the probation order directed appellant to report “at least once a month,” an allegation that appellant had failed to report on a specific date could not sustain a finding by the court that he had violated his probation conditions absent an allegation and proof that he had failed to report monthly. We held that the probation condition by the court,

“ . . . sufficiently required appellant to report not less than once per month, [citations omitted] However, it did not delegate authority to the probation officer to require weekly reports, and any such instructions given by the officer were beyond his legal authority and of no force. Parsons v. State, Tex.Cr.App., 513 S.W.2d 554; DeLeon v. State, Tex.Cr.App., 466 S.W.2d 573; Campbell v. State, Tex.Cr.App., 420 S.W.2d 715.” (emphasis added.) 534 S.W.2d 331, 334.

Although Corbin testified that he had had appellant reporting on a weekly basis, he had no authority to require appellant to report so often, and absent an allegation by the State and finding by the court that appellant had failed to make monthly reports, there is no violation of appellant’s probation conditions.

In the second ground of error, appellant contends that the trial court abused its discretion in finding that appellant had violated the terms of his probation in failing to make restitution payments. It is well settled that absent a showing of a probationer’s ability to make the restitution payments, and that his failure was intentional, it is an abuse of discretion for a court to revoke probation on this failure to make payments. Curtis v. State, 548 S.W.2d 57 (Tex.Cr.App.1977); Fletcher v. State, 547 S.W.2d 634 (Tex.Cr.App.1977); Herrington v. State, 534 S.W.2d 331 (Tex.Cr.App.1976). Here, there was no showing that appellant was in any way able to make the restitution payments. In fact, the testimony of Cor-bin, Bonnie Beckham, appellant’s mother, and appellant himself showed that appellant was not employed during this period of non-payment and thus had no income from which to make the payments as he was required. The finding by the court that appellant’s non-payment of restitution was a violation of probation conditions cannot be sustained.

In appellant’s third ground of error, he contends that the evidence is insufficient to prove that he changed his residence without the permission of his probation officer, in violation of his probation conditions. Appellant was first given permission by his probation officer to live with his mother, on Harley Street. Corbin testified that he had never given appellant permission to change his residence from that address. There was also undisputed evidence that appellant went to his cousin’s house on Bissonnet Street and stayed there for some undetermined period of time less than two weeks. Appellant admits that he stayed at his cousin’s house during this period but he denies that he changed his residence or ever intended to change it.

Bruce Corbin testified that he learned of appellant’s absence from his mother’s home May 17,1976, when she called the probation office. He further stated that he never attempted to locate him at the Bissonnet address. Corbin further stated that when he talked to appellant on the day he was arrested appellant admitted that he had been living at the Bissonnet address. Beck-ham, appellant’s mother, testified that at some time during this two week period appellant was living with his cousin. She stated that appellant left property at her house on Harley Street, and that he returned to her house during this period but that he did not stay there.

Appellant admitted that he went to his cousin’s house. He testified that he did so for the sole purpose of getting a job in carpentry with his cousin when an expected vacancy arose. He stated that he believed that a partner in his cousin’s business was about to die and that he could get a job as “helper” if he were there. When questioned about why he did not return to his mother’s house when he did not get a job, he stated in response, “There was some confusion between her and my father.” He further testified that he did not intend his cousin’s house to be a permanent address and that he still considered the Harley address to be his permanent address.

There is no question that appellant stayed away from his mother’s house for a period of time. However, appellant argues that there is insufficient evidence to show that he actually changed his residence. In Whitney v. State, 472 S.W.2d 524 (Tex.Cr.App.1971), this Court clearly distinguished between “residence” and bodily presence. We said,

“Residence is an elastic term. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely- depends upon the present intention of the individual. [Citation omitted] Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide, at that moment the residence is fixed and determined . . . ”

In Whitney, the probationer went to Florida to seek employment and spent approximately three nights in a motel there. Even though he was seeking employment and probably would have made Florida his residence had he found a job, we held that there was insufficient evidence to show that he actually changed his residence. In the instant case, there is ample evidence that appellant was away from his mother’s house for a period of fourteen days or less, but we hold that there is insufficient evidence to prove that appellant changed his residence. There is no evidence regarding his intent to make the Bissonnet address his residence, and since he did not move his belongings, a stay of less than two weeks is not, by itself, circumstantial evidence of an intention to create a new residence. While a lengthy stay, or moving all of one’s property could constitute circumstantial evidence of a change of residence, we have neither here.

The State, in arguing that the evidence supports the trial court’s finding that appellant changed his residence, relies on a statement that appellant made at the hearing, as an admission by appellant. On cross-examination, the following testimony was given during a discussion of appellant’s failure to make restitution payments:

“Q [Prosecution]: The fact is you can’t make it on probation; can you?
“A [Appellant]: I can make it.
“Q You haven’t made it yet. You can’t get a job; you can’t keep one; can you?
“A Yes, sir. I can keep a job.
“Q You can’t stay out of trouble either; can you?
“A I can stay out of trouble. I did stay out except for failing to report and moving without permission my place of residence. If that’s getting in trouble, well, I did that, yes.
“Q You just didn’t really consider that a real important condition of your probation; did you?
“A Yes, sir. I considered it important.
“Q You just can’t do that because you don’t think it is important?
“A Yes, I think it’s important.
“Q You think it’s important now when you’re in court and the judge has the authority to send you to the penitentiary, but you didn’t think it was important prior to today?
“A Yes, Ido.
“Q You just flat didn’t do it then?
“A Right.”

When the prosecutor and appellant refer to “it,” it is unclear whether they refer to appellant’s failure to make restitution payments, or to report, or the change of residence, or to appellant’s having “gotten in trouble” with his probation officer in the fist place.

When appellant stated, “If that’s getting in trouble, well, I did that, yes,” he does not appear to have admitted that he changed his residence, but rather he is restating the charges against him and admitting that he has “gotten into trouble” over his probation conditions.

Further, even had appellant admitted that he “changed his residence,” that alone would not be sufficient evidence to support the alleged violation. “Residence” is a legal conclusion, a matter of law, to be determined from facts. An admission of a legal conclusion is not necessarily an admission of underlying facts.

Viewing all the evidence in the light most favorable to the court’s finding, we cannot conclude that there is sufficient evidence to support the finding that appellant changed his residence. We must conclude, therefore, that the court abused its discretion in basing its revocation order on this ground.

Appellant finally contends that the trial court abused its discretion in revoking appellant’s probation on the ground that he committed an offense against the laws of this State, in violation of his probation conditions.

The State’s motion to revoke alleged that appellant “took without permission from his mother, checks from her personal checking account and wrote two checks for $50.00 and one check for $45.00.” Appellant, by proper and timely objection, excepted to the allegation in that it was so vague as to not inform appellant of the offense upon which he was called to defend. He argues that the charge was not sufficient to state any offense under the Penal Code and that he did not know whether he was charged with theft, forgery or passing a forged instrument.

We have repeatedly held that allegations in a motion to revoke probation do not require the same particularity or precision as an indictment or information, yet these allegations should give the probationer fair notice of the charges against him upon which he is called to defend or he is denied the rudiments of due process of law. Garner v. State, 545 S.W.2d 178 (Tex.Cr.App.1977); Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976); Acton v. State, 530 S.W.2d 568 (Tex.Cr.App.1976).

In Roberson v. State, 485 S.W.2d 795 (Tex.Cr.App.1972) we held that where the State’s motion to revoke probation alleged that the probationer “was arrested in Anderson County driving a stolen automobile,” this language was not sufficient to give notice of what offense the probationer was alleged to have committed in violation of his probation conditions. In Garner v. State, 545 S.W.2d 178 (Tex.Cr.App.1977), we held that an allegation in a motion to revoke probation that alleged that the probationer had “committed the offense of theft in Harris County” was not sufficient to inform him what offense he was charged with, and thus he could not prepare an adequate defense to the charge.

In appellant’s ease, the motion to revoke was insufficient to inform him what particular offense with which he was charged if indeed he was charged with an offense at all. Since appellant raised this issue to the trial court before the proceedings began, we conclude that the court erred in overruling appellant’s exception to the motion to revoke.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The judgment should be affirmed because the trial judge did not abuse his discretion in revoking probation. The evidence was sufficient to show that appellant changed his residence without permission. Under the majority opinion, all a probationer has to do to defeat revocation on the ground of changing his residence without permission is to testify that he did not intend to change it permanently.

Further, the ground that he took two checks without the consent of his mother and cashed them was sufficient for the judge to revoke probation.

ODOM, J., joins in this dissent.

      . There was no evidence introduced to show how long appellant was at his cousin’s house. However, the court specifically found that he moved on May 6, 1976, and appellant was arrested and incarcerated on May 20, 1976, so he could not have been at his cousin’s house longer then fourteen days.

      . Also, we do not know what appellant meant by the statement about “moving without permission my place of residence.” Being of limited education, it is likely that he was adopting the prosecutor’s language and stating the issue in the terms that the prosecutor had used, not distinguishing between bodily presence in a place and residence.

      .We also point out that in Whitney v. State, supra, we noted that language in a probation condition which is identical to the language in this case was ambiguous. We stated that, depending on the meaning given to the term “residence,” the language could be read to mean three different things. While this was not controlling in Whitney, and is not in the instant case, if this Court finds the condition ambiguous, it is likely that some probationers do too.

      .Appellant raised this objection to the court before the hearing in a written notice to set aside the motion to revoke and argued the motion before the revocation proceedings began. Thus, Tone v. State, 505 S.W.2d 300 (Tex.Cr.App.1974) and Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973) are not controlling. We held therein that motions to quash the State’s motion to revoke on the same grounds as appellant argues were not timely where they were made after the proceedings had begun.


author: GREEN, Commissioner.

text:
    Allen Edward RUNO, Appellant, v. The STATE of Texas, Appellee.
    No. 55138.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.
    Appellant’s Motions for Rehearing Denied Nov. 2, 1977.
    Joe L. Price, Trinity, for appellant.
    Jerry A. Sandel, Dist. Atty., Huntsville, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court on a plea of guilty appellant was convicted of possession of a firearm by a felon. See V.T.C.A. Penal Code, Section 46.05. Punishment was assessed by the court at five years.

The record reflects that on January 22, 1976 Huntsville Police Detective Dennis Johnston stopped appellant’s automobile on a Huntsville street and arrested appellant pursuant to warrant issued January 21, 1976 in conjunction with appellant’s indictment by the Walker County grand jury. Appellant was placed in a patrol car and Johnston made an “inventory” search of appellant’s car prior to having it towed away by a wrecker service. As a result of the search Johnston found two pistols under the front seats of appellant’s car.

Appellant’s subsequent indictment by the Walker County grand jury under V.T.C.A. Penal Code, Section 46.05, alleged in part that appellant

“. . . did then and there unlawfully, intentionally and knowingly possess a firearm, to wit: (1) Colt Python .357 Revolver away from the premises where he lived; and prior to the commission of said act, the said Allen Edward Runo was duly and legally convicted of the felony offense of Robbery by Assault, being a felony involving an act of violence to a person, to-wit . . . ”

V.T.C.A. Penal Code, Section 46.05 provides:

“(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possessed a firearm away from the premises where he lives.”

In ground of error number one appellant contends that his unconditional pardon from the 1960 robbery by assault conviction relied on in the instant indictment prohibited his subsequent prosecution and conviction under V.T.C.A. Penal Code, Section 46.05.

The record reflects that prior to entering a plea of guilty appellant filed a motion to dismiss the prosecution. The motion alleged that in November 1972 appellant received an unconditional pardon from the robbery by assault conviction relied on in the instant indictment and that by virtue of the pardon he could not “be considered an ex-felon in the sense that it is used in V.T.C.A. Penal Code, Section 46.05.” The State stipulated that appellant had received “a full and unconditional pardon and restoration of full civil rights of citizenship,” but the document evidencing the pardon was not placed in evidence and is not contained in the record before us on appeal. Appellant’s motion to dismiss was overruled by the trial court.

In Ex parte Smith, 548 S.W.2d 410, we stated:

“The second enhancement paragraph of the indictment alleges that appellant was convicted in Cause No. 3158 in the 82nd District Court of Palls County in 1952 of accomplice to robbery with firearms. Appellant contends his subsequent pardon of the offense precludes the use of this conviction to deny bail.
“It was held in Jones v. State, 141 Tex.Cr.R. 70, 147 S.W.2d 508 (1941), and Logan v. State, 448 S.W.2d 462 (Tex.Cr.App.1970), that a pardon for any reason other than subsequent proof of innocence does not obliterate the defendant’s conviction. Rather, it merely serves to restore his civil rights. See also Gurleski v. United States, 405 F.2d 253 (5th Cir. 1968). Thus, the conviction in Palls County is available to deny bail under the constitutional provision. Ground of error number four is overruled.”

In the instant case, the pardon papers were not made part of the record and there is no evidence in the record to show that appellant’s pardon was based upon the Governor’s finding that appellant was innocent of the robbery by assault offense for which he was pardoned. Absent such a showing, the prior conviction for a felony was properly admitted as evidence that appellant had been convicted of a felony involving an act of violence, V.T.C.A. Penal Code, Sec. 46.05, supra.

Ground of error one is overruled.

In ground of error two appellant contends that V.T.C.A. Penal Code, Section 46.05(a), supra, “is unconstitutional in that it is vague, over broad [and therefore] denies due process and infringes upon one’s right to bear arms ... as protected by the Constitutions of the State of Texas and the United States.”

We observe that appellant fails to cite any authority in support of his contention that Section 46.05(a) is unconstitutional as “vague and overbroad,” nor does appellant explain in what manner 46.05(a) is vague or overbroad. Moreover, we find that V.T.C.A. Penal Code, Section 46.05(a) is not void for vagueness because it gives “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” and “it does not encourage arbitrary and erratic arrests and convictions.” See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

Appellant’s contention that Sec. 46.-05(a) is void since it is in conflict with the constitutional right to keep and bear arms was decided adversely to him in McGuire v. State, Tex.Cr.App., 537 S.W.2d 26, and Milligan v. State, Tex.Cr.App., 554 S.W.2d 192 (1977). Accordingly, ground of error two is overruled.

In appellant’s final ground of error he contends that the search of his automobile constituted an unreasonable search and seizure.

Our examination of the record reflects that on June 24,1976 the trial court admonished appellant in compliance with Art. 26.-13, V.A.C.C.P., of the consequences of a plea of guilty. Appellant acknowledged that he understood the statutory admonitions and entered a voluntary plea of guilty to the offense of possession of a firearm by a felon.

It is well settled that where a plea of guilty is voluntarily and understandingly made all non-jurisdictional defects are waived including the evidence seized as the result of an allegedly illegal search and seizure. Helms v. State, Tex.Cr.App., 484 S.W.2d 925; Cantu v. State, Tex.Cr.App., 546 S.W.2d 621.

Appellant’s guilty plea having been voluntarily and understandingly made after proper statutory admonitions by the trial court, error, if any, in admitting illegally seized evidence was waived. Helms v. State, supra; Cantu v. State, supra.

Ground of error three is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . The omitted portion includes a detailed statement of the prior felony conviction.


author: PHILLIPS, Judge.

text:
    Ex parte Ralph Leslie MAXWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 54896.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1977.
    State’s Motions for Rehearing Denied Nov. 2, 1977.

      James H. Kreimeyer, Belton, for appellant.
    Don S. Caldwell, Jr., Dist. Atty. and Richard W. White, Asst. County Atty., James L. Bradley and L. L. Geren, Sp. Prosecutors, Groesbeck, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appeal is taken from an order denying appellant’s application for writ of habeas corpus and refusing appellant’s application for bail. Appellant stands indicted for the offense of capital murder.

Without setting out the facts in detail or commenting on the sufficiency of the evidence, we agree that the State met its burden of establishing that the proof is evident a jury would return a finding of guilt. However, the State must also introduce evidence that a jury would return findings which would require a sentence of death. Ex parte Wilson, Tex.Cr.App., 527 S.W.2d 310.

While the decision of the trial judge that the proof was evident is entitled to weight on appeal, it is nevertheless the duty of this Court to examine the evidence and to determine if bail was properly denied. Ex parte Hammond, Tex.Cr.App., 540 S.W.2d 328; Ex parte Derese, Tex.Cr.App., 540 S.W.2d 332.

A witness for the State testified after appellant had been arrested and released on a $10,000.00 bond he heard appellant and appellant’s wife talking with Hank Worley about a statement Worley had signed. Appellant told Worley if he gave any testimony against appellant that would hurt him on this case appellant “would have something done about it.” Appellant also said his lawyer told him he “had a good chance to get to see old Sparky.”

We cannot conclude that this is sufficient to show the proof is evident that a jury would answer the required questions submitted under Art. 37.071, V.A.C.C.P., in the affirmative. See and compare Ex parte Davis, Tex.Cr.App., 542 S.W.2d 192.

The judgment of the trial court denying bail to the appellant is reversed. Bail is set in the amount of $55,000.00.