author: W. C. DAVIS, Judge. ONION, Presiding Judge,

text:
    Willie D. BERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 55792.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 18, 1979.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John G. Tatum, James K. Johnson and John Ovard, Asst. Dist. Attys., Dallas, and Robert Hut-tash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated rape. V.T.C.A., Penal Code, § 21.03. The jury assessed punishment at life imprisonment in the Texas Department of Corrections.

In his third ground of error, appellant contends that the evidence is insufficient to sustain a conviction for aggravated rape. He concedes that the evidence may show the commission of a rape, but contends that there is no evidence of him compelling submission by a threat of death or serious bodily injury to be imminently inflicted upon her, as required by § 21.03, supra. We disagree.

The prosecutrix testified that prior to the offense she was a college student in Colorado. She stated that she had recently come to Dallas in an internship program and, thus, had been unfamiliar with the city. She and another young woman had rented an apartment together, but had not had a telephone installed. She testified that on the night of the offense she left her apartment at about 8:00 p. m. to walk to a nearby telephone booth in order to make a call. After talking to the party she called, as she stepped out of the phone booth, she saw appellant standing next to a car nearby. She testified that it was dark at that time. She heard appellant say something to her and saw him start to approach her, and she stated that she became frightened. She testified that appellant grabbed her hard by the arm and stuck something sharp in the back of her neck. She testified, “He told me not to do anything and he wouldn’t hurt me,” and she stated that he was hurting her arm and wrist. She stated that the object he stuck in the back of her neck felt like a knife, but that she could not see it. She testified that appellant told her that he would not hurt her if she would do what he said to do.

The prosecutrix testified that he then dragged her over to the car and forced her in, as she struggled with him. She stated that she was in fear for her life. She testified that he was stronger than she and that he kept repeating “just to do what I tell you and I won’t hurt you.” He then told her that he wanted to “make love” to her. She stated that the door on her side of the car was locked and that she was afraid to reach back and unlock it. Then, with her in the car, appellant drove around, stopping briefly to ask friends where his brother was. She was not familiar with any place appellant drove. She stated, “[w]e drove up and down the streets, some more, and whenever a car would pass, coming from the other direction, the two cars would stop, so that then they were parallel to each other, and he would just let the black people that were in the other car stare across to me so that they could get a look at me,” and that nothing was ever said during this time. She testified that she “had the feeling that maybe this man was going to have a sex orgy.”

After this, she stated that he drove to “the slums” and dragged her out of the car and took her into an apartment. She stated that he told her to relax, that as long as she did what he told her to, he would not hurt her. She stated that, although she had not yet seen a weapon, he kept telling her that he would not hurt her if she did what he said to do. Appellant then raped her and later drove her back to the telephone booth.

Upon cross-examination, she testified that when he first abducted her he stuck something sharp in her neck. She stated that this object was sharp and flat and that it felt like a sharp knife, forcibly pressed against her neck. She stated that he indicated to her that he had a weapon and that he was going to use it by putting the object against her neck. She testified that appellant did not verbally threaten her with death or serious bodily injury, other than to tell her that if she complied with his demands she would not be harmed.

Upon review by this court, the evidence must be viewed in the light most favorable to the jury’s verdict. Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977); Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974). The jury found that appellant had compelled the prosecutrix’s submission to the offense by threats of death or serious bodily harm, and we hold that the evidence is sufficient to support this verdict. The term “threats” is not limited to the use of verbal aggression but may include acts amounting to an offer to use future force. Threats may be communicated by actions, words or deeds. Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977); Rogers v. State, supra; see also, Williams v. State, 500 S.W.2d 163 (Tex.Cr.App.1973).

In the instant case, appellant grabbed the prosecutrix hard, hurting her arm and wrist. He then stuck a sharp, flat object in the back of her neck; she testified that the object felt like a knife, forcibly pressed against her neck. Appellant repeatedly told her that if she cooperated with his demands she would not be hurt; the implication of this threat, of course, is that she would be hurt or harmed if she resisted. By his actions and words, appellant indicated to the prosecutrix that he had a weapon and that he would use it if she resisted. These acts, coupled with his threats, are sufficient evidence of a threat of serious bodily injury. Appellant’s third ground of error is overruled.

In his first ground of error, appellant contends that the trial court erred in admitting into evidence a knife obtained pursuant to an illegal search and seizure. Officer W. F. Leichliter of the Dallas Police Department testified that on the night of October 20, 1974, he was patrolling the West Dallas area when he received radio transmissions. As a result of the messages received, he went to a location in a housing project. At this address, he observed an automobile parked off of the parking area between shrubs and a clothes line pole. The officers approached the car and observed' similarities between it and the description of the vehicle for which they were looking. Further, the automobile was parked behind the house number which had been related to them. Officer Leichliter testified that as he stood outside the car looking at it, he observed a putty knife lying in plain view on the front seat. The knife was subsequently seized.

We hold that the trial court did not err in admitting the knife into evidence. The officer was standing in a public place pursuant to a lawful investigation; the knife was in plain view. A police officer may seize what he sees in plain view if he is lawfully where he is. Clark v. State, 548 S.W.2d 888 (Tex.Cr.App.1977); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Craig v. State, 533 S.W.2d 827 (Tex.Cr.App.1976); Casarez v. State, 504 S.W.2d 847 (Tex.Cr.App.1974); Pulido v. State, 503 S.W.2d 578 (Tex.Cr.App.1974). This contention is overruled.

In his second ground of error, appellant contends that the prosecutor committed fundamental error during argument at the hearing on punishment in making an indirect reference to the length of time which appellant would be required to serve in prison on any sentence. No such objection was voiced at trial. Error, if any, in the prosecutor’s argument was waived by appellant’s failure to object. Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978); Wilder v. State, 558 S.W.2d 883 (Tex.Cr.App.1975); Hunter v. State, 530 S.W.2d 573 (Tex.Cr.App.1975). This is not the sort of argument which constitutes fundamental error requiring review absent any objection at trial. This contention is overruled.

The judgment is affirmed.

ROBERTS, J., concurs in the result.

ONION, Presiding Judge,

concurring.

I reluctantly concur in the result reached. The question of whether the evidence is sufficient to show that the rape was aggravated under the terms of V.T.C.A., Penal Code, § 21.03, is presented. The fact situation is similar to that of Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979), where the conviction was reversed because the evidence did not show the rape to be aggravated. The question presented is close.

V.T.C.A., Penal Code, § 21.02 (Rape), in effect at the time of the offense, reads as follows:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
“(2) he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution;
“(3) she has not consented and he knows she is unconscious or physically unable to resist;
“(4) he knows that as a result of mental disease or defect she is at the time of the intercourse incapable either of appraising the nature of the act or of resisting it;
“(5) she has not consented and he knows that she is unaware that sexual intercourse is occurring;
“(6) he knows that she submits or participates because she erroneously believes that he is her husband; or
“(7) he has intentionally impaired her power to appraise or control her conduct by administering any substance without her knowledge.
“(c) An offense under this section is a felony of the second degree.”

V.T.C.A., Penal Code, § 21.03, provides, in pertinent part, as follows:

“(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code . . . and he:
“(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.”

Thus, before rape can become aggravated rape, it must be alleged and proven that the aggravating circumstances exist.

The indictment alleged that on or about October 20, 1974 appellant did:
“. . . knowingly and intentionally by force and threats have sexual intercourse with P_ 0_, a female not his wife, without the consent of the said P_ 0_ and the said Defendant did then and there knowingly and intentionally compel the said P_ 0_ to submit to the said act of sexual intercourse by the threat of death and serious bodily injury to be imminently inflicted on the said P-0-..."

It is seen then that it is alleged that appellant committed the offense of aggravated rape by threat of death and serious bodily injury.

The evidence reflects that as the prosecu-trix left a public telephone booth on the night of the offense she was approached by the appellant, who said something she did not understand. He grabbed her arm and placed a sharp object at the back of her neck and said he wouldn’t hurt her if she would do what he said. She felt a strong pain in her arm where the appellant grabbed her. She did not know what the sharp object was and never did see it. She stated it felt like a knife, but admitted that there was a real possibility that it wasn’t a knife.

Appellant dragged the prosecutrix to his nearby car and told her to sit in the driver’s seat. She did and was then told to move to the passenger’s seat. She related she struggled unsuccessfully but did not scream because of fear. Appellant locked the door and proceeded to drive. He asked the pros-ecutrix her name and told her he wanted to “make love” to her. After they had driven about half a mile, appellant gave the prose-cutrix a marihuana cigarette and told her to smoke it, and she did because she was afraid not to do so. He told her several times he wouldn’t hurt her if she did what he told her to do.

Appellant made several stops during which he talked to various people but did not leave the ear. At one stop he acquired glasses and poured wine into them and offered one to the prosecutrix, which she took and sipped. Eventually, appellant took the prosecutrix to an apartment where he locked the doors after their entry. After a brief conversation, appellant took the prose-cutrix to an upstairs bedroom where he removed her clothes and his and raped her. He then returned the prosecutrix to the location from which she had been abducted. She returned to her apartment nearby, made an outcry to her roommate and the police were called.

The evidence is clearly sufficient to show rape, and the appellant does not contend otherwise. He contends it was not shown to be aggravated rape as alleged. The prosecutrix testified that at no time did the appellant threaten to kill or make any threat of death, thus the inquiry is limited to whether there was a threat of serious bodily injury.

V.T.C.A., Penal Code, § 1.07(a)(34), defines serious bodily injury as:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

In the instant ease the appellant placed an unidentified object against the prosecu-trix’ neck and told her she would not be “hurt” if she did what he told her. This statement was repeated several times during the time the prosecutrix was with the appellant. She never saw the object placed against her neck, nor did she at any time see a knife or other weapon in appellant’s hands or on or about his person. She testified that she was not hit, punched or mistreated in any way other than the rape itself, and that she had not suffered any injuries or bruises.

In Rogers v. State, supra, the defendant struck the prosecutrix in the face when she answered the door. She was knocked back against a table and onto the floor, told to take her clothes off and then she was raped. The prosecutrix stated that the defendant did not display any weapon, did not threaten to kill her, and did not hit or hurt her after he first appeared at her door. She related he did threaten to “hurt” her if she wasn’t quiet or didn’t keep her “mouth shut.” Her visible injuries were two black eyes and a swollen nose, which were x-rayed at the hospital.

In Rogers v. State, supra, the court wrote:

“The cases above illustrate the proof necessary for a finding of a threat of serious bodily injury. In each case where this Court held the evidence was sufficient to support a conviction under Sec. 21.03, there was a showing that a gun or knife was used, or a threat to kill the victim was made, or serious bodily injury was inflicted, or a combination of two or more of these factors. (Footnote omitted.) Only in Blount, [524 S.W.2d 164] supra, where the proof did not show that any of these three acts had occurred, did the Court fail to find the evidence supported a conviction for aggravated rape. In the present ease, as in Blount, no showing has been made that any weapon was used, or a threat to kill made, or serious bodily injury inflicted.
“The injuries testified to by the prose-cutrix were not serious bodily injuries as defined by Sec. 1.07(a)(34), supra. Her own testimony also establishes that no threat on her life was made, nor was any knife, gun, or other weapon used. We find that the evidence was insufficient to prove the aggravated circumstances required under Sec. 21.03, supra.”

In Rogers, as in the instant case, there were no serious bodily injuries and no threats of death. In both cases the only threat was to “hurt” and neither prosecu-trix saw any gun, knife or other weapon. The difference is that in the instant case the appellant placed a sharp object that felt like a knife against the prosecutrix’ neck when the initial threat was made. Further, the evidence reflects that a police officer found a putty knife in the car that appellant had been using several hours after the alleged offense. When it is considered that threats may be communicated by actions and deeds, as well as words, Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977), and when the evidence is viewed in the light most favorable to the jury’s verdict, I concur in the result reached.

      . Appellant did not testify at the guilt or innocence stage of the trial, but he did testify in his own behalf at the punishment phase. Therein, he admitted that he was the one who confronted the prosecutrix on the date of the offense, that he forced her into his car, and that he threatened her. He also testified that he was sorry for what he had done. While this judicial admission, in itself, might constitute sufficient evidence of the aggravation under § 21.03, supra, we need not base our holding upon this alone, due to the other evidence adduced at trial.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Cathey Collins PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 56104.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 18, 1979.

      W. B. “Bennie” House, Jr., Houston, for appellant.

      Ogden L. Bass, Jr., Dist. Atty., and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ. '
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of commercial obscenity. Punishment was assessed by the court at 120 days confinement in jail, to be probated for a period of six months, and a non-probated fine of $750.00. The sufficiency of the evidence is not challenged, and given our holding of the unconstitutional search and seizure involved here and the prejudicial evidence gained therefrom, we do not reach the issue of obscenity. A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964).

Appellant in her third ground of error alleges that 17 magazines, books, and films were obtained as the result of an illegal search and seizure and that failure of the trial court to suppress this evidence requires reversal. We agree. However, we deem it necessary to discuss points of error one and two before reaching the alleged illegality of the search and seizure.

The record reveals that on March 10, 1976, the appellant opened the Swinger Adult Book Store in Freeport at approximately 10 a. m. Present upon opening the bookstore were the following: Detective Charles Wagner of the Freeport Police Department, Investigator Jimmy Jones of the Brazoria County District Attorney’s Office, Brazoria County District Attorney Ogden Bass, and Justice of the Peace Harold Am-mons of Brazoria County. The aforementioned “officials” then entered the bookstore in question and Detective Wagner purchased a magazine entitled “EZE Time” which was completely closed and wrapped in cellophane so that only the front and back cover could be seen. The record shows that Judge Ammons never saw the magazine prior to its purchase and that Detective Wagner saw only the covers of the magazine but never viewed its contents. Detective Wagner got a receipt for the purchase and arrested the appellant on the spot.

Immediately after appellant’s arrest without a warrant, Detective Wagner proceeded to conduct a warrantless search and seizure of 17 other books, films, and magazines which later became State’s Exhibits 2 through 18 during the trial. The record shows that of these 17 exhibits, nine were books and magazines, all enclosed in cellophane so that none of their contents could be viewed. The other eight exhibits were films located in the display counter of which Detective Wagner never saw one frame, instead using his admitted complete “discretion” in selecting any book, film, or magazine that displayed some form of sexual contact on the cover as a guide in determining what to search and seize. The testimony of Detective Wagner and Judge Am-mons does not show that the Judge ever viewed or offered any opinion as to the obscenity of any of these 17 items before their seizure.

During the trial, the court gave a limiting instruction to the jury that these 17 items, State’s Exhibits 2 through 18, could only be considered for the limited purpose of going to the issue of knowledge, if any, on the part of the appellant as to the contents of State’s Exhibits 1 — “EZE Time” — the particular item with which the appellant was charged in the information.

Appellant in her first ground of error alleges that the mere purchase of a magazine does not justify an immediate warrant-less arrest when neither the arresting officer nor a detached neutral magistrate has viewed the contents of the magazine in its entirety for a determination of “probable cause.”

The appellant confuses what is necessary for a finding of obscenity under Section 43.21(1) of the Penal Code and that which is necessary for a finding of probable cause that a certain publication is obscene. Section 43.21(1) defines obscene as: “ ‘Obscene’ means having as a whole a dominant theme that: (A) appeals to the prurient interest of the average person applying contemporary community standards; (B) depicts or describes sexual conduct in a patently offensive way; and (C) lacks serious literary, artistic, political, or scientific value.” (Emphasis added) The front cover of the magazine “EZE Time,” the purchase of which was the basis for Detective Wagner’s arrest of appellant, depicts a partially nude female performing an act of fellatio on a nude male. The back cover of the same magazine reveals a close-up view of a male performing cunnilingus on a nude female. Although Detective Wagner did not view any of the reading matter of the magazine as was the case in Parrish v. State, Tex.Cr.App., 521 S.W.2d 849, before the arrest therein, we hold that the front and back covers of the magazine “EZE Time” gave the officer sufficient probable cause to reasonably believe that a violation of Section 43.23, Section 1 of the Penal Code had occurred in his presence and within his view justifying a warrantless arrest under Article 14.01(b), V.A.C.C.P. The warrantless arrest was legal and proper. U. S. v. Fragus, 428 F.2d 1211 (5th Cir. 1970). Appellant’s first ground of error is overruled.

Appellant’s second ground of error alleges that State’s Exhibits 2 through 18, comprised of various films, magazines, and books, were the result of a search and seizure after an illegal arrest and that their admission into evidence requires reversal in this cause. Based on our previous holding in Ground of Error No. 1 that Detective Wagner had probable cause to make a war-rantless arrest of appellant, this ground of error is overruled.

Appellant in her third ground of error alleges that the warrantless seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the sale of such material, exceeded the constitutional bounds of the Fourth Amendment and thus the admission of such material into evidence mandates a reversal of this cause. It is uncontested: (a) that Detective Wagner had no warrant when he made the seizure, (b) that there had been no “probable cause” determination by a judicial officer on the question of obscenity prior to the search, and (c) that the search was based solely on Detective Wagner’s observing the covers of magazines, books, and film boxes for signs of “sexual contact.”

The State in its brief cites Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, as authority for the proposition that evidence of extraneous offenses committed by the accused is admissible to prove scienter, where intent or guilty knowledge is an essential element of the State’s case as is the case here. The State’s reliance is misplaced, however, because the issue is not how the evidence was used at the trial, but how this evidence was obtained. It is clear that in his search and seizure of the 17 items in question, Detective Wagner actually made ad hoc decisions on the spot and that each decision was made with little opportunity for reflection and deliberation, based solely on whether or not there was some sexual conduct on the cover of the books, magazines, or film boxes. He was provided with no guide to the exercise of his discretion because there was no step in this procedure before seizure designed to “focus searehingly on the question of obscenity.” Marcus v. Search Warrant, 367 U.S. 717 at 732, 81 S.Ct. 1708 at 1716, 6 L.Ed.2d 1127 (1961).

Where the material sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with “scrupulous exactitude.” Stanford v. Texas, 379 U.S. 476 at 485, 85 S.Ct. 506 at 511, 13 L.Ed.2d 431 (1965). “A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.” Roaden v. Kentucky, 413 U.S. 496 at 501, 93 S.Ct. 2796 at 2800 (1973). Thus, “[wjhere presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.” Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

“The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is ‘unreasonable’ in the light of the values of freedom of expression.” Roaden v. Kentucky, supra, 413 U.S. at 504, 93 S.Ct. at 2801.

“[Wjhere seizure is sought of allegedly obscene materials, the judgment of the arresting officer alone is insufficient to justify issuance of a search warrant or a seizure without a warrant incident to arrest The procedure for determining probable, cause must afford an opportunity for the judicial officer to ‘focus searchingly on the question of obscenity.’” (Emphasis added) Zurcher v. Stanford Daily, supra; Marcus v. Search Warrant, supra, 367 U.S. at 732, 81 S.Ct. at 1716; A Quantity of Books v. Kansas, 378 U.S. at 210, 84 S.Ct. at 1725; Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 at 637, 88 S.Ct. 2103 at 2104, 20 L.Ed.2d 1313 (1968); Roaden v. Kentucky, supra, 413 U.S. at 502, 93 S.Ct. at 2800; Heller v. New York, 413 U.S. 483 at 489, 93 S.Ct. 2789 at 2793, 37 L.Ed.2d 745 (1973).

It should be noted that a magistrate was present at the Swinger Adult Book Store at the time the warrantless search and seizure was made. It would have been fairly easy for the magistrate to have “focused searchingly on the question of obscenity” while in the store and then issued the corresponding search warrant. This procedure was upheld in West v. State, Tex.Cr.App., 489 S.W.2d 597, and in Heller v. New York, supra. It should also be noted that the 17 exhibits which were improperly admitted into evidence would not have been excluded under Fourth Amendment requirements if the officer had purchased them along with the magazine “EZE Time” before his arrest of appellant. The Fourth Amendment protects against unreasonable searches and seizures, not against “unreasonable” purchases.

In this case, the probable prejudicial effect of the admission of the 17 books, films, and magazines in evidence requires reversal of appellant’s conviction.

We agree with the State that evidence such as that included in Exhibits 2 through 18 can be used as circumstantial evidence to show knowledge on the part of an appellant of the contents of the allegedly obscene material of which she is accused of selling under Section 43.23(a) of the Penal Code.

In Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, the Supreme Court stated that “Eyewitness testimony of a bookseller’s perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.” See also Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966).

We also agree with the court’s charge in the instant case dealing with the issue of the 17 films, magazines, and books as evidence of knowledge of the alleged obscenity of the magazine “EZE Time” by the appellant. That part of the charge reads:

The Defendant is on trial solely on the charge alleged against her in the information. There has been evidence introduced before this jury of other material that was seized by the State at the time of the Defendant’s arrest. Accordingly, you may consider such evidence of extraneous material only in the event you believe beyond a reasonable doubt that the extraneous material is obscene, and then only for the limited purpose of determining knowledge, if any, on the part of the Defendant of the contents of the material that the Defendant is charged in the information with selling, and for no other purpose whatsoever. [Emphasis added]

However, to find that the extraneous material was obscene, the material must have as “a dominant theme” certain obscenity criteria “as a whole.” In the instant case, however, the record does not reflect that the jury was allowed to see any of the films, magazines, or books in their entirety to make a finding of obscenity beyond a reasonable doubt and then to use this finding as evidence of knowledge on the part of the appellant of the contents of “EZE Time.” In fact, one of the notes from the jury in the record reads: “Please send in several of the cellophane wrapped materials.” The record then shows that Presiding Judge Gayle sent back the following message to the jury: “Cellophane wrapped materials are all sent in. Do not remove cellophane.” By not allowing the jury to remove the cellophane and examine the contents of these books, it was impossible for the fact finder at trial to view the entire material before it made the ultimate judgment that, “taken as a whole the books appealed to the prurient interest.” See Bryers v. State, Tex.Cr.App., 480 S.W.2d 712; Bourland v. State, Tex.Cr.App., 502 S.W.2d 8.

More important, however, is the fact that in only allowing the jury to view, the covers of 17 books, films, and magazines without being able to view their contents to find possible “literary, artistic, political, or scientific value,” [Section 43.21(1)(C), Penal Code], it is not possible to say that these 17 exhibits of “sexual contact” were harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or that “there is a reasonable possibility that the evidence . might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85 at 86-87, 84 S.Ct. 229 at 230, 11 L.Ed.2d 171 (1963).

Given our disposition of this case, our consideration of appellant’s last ground of error is unwarranted.

The judgment is reversed and the cause remanded.

ONION, P. J., concurs in the result.

      . This does not mean an adversary proceeding is needed before seizure, since a warrant may be issued ex parte. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973).


author: CLINTON, Judge. DALLY, Judge,

text:
    Harold Lloyd FINKLEA, Appellant, v. The STATE of Texas, Appellee.
    No. 57072.
    Court of Criminal Appeals of Texas, En Banc.
    April 18, 1979.

      Rex Kirby, Tyler, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

CLINTON, Judge.

On original submission judgment of conviction of forgery by passing on appellant’s plea of guilty was affirmed by a majority opinion delivered December 20, 1978. It and the dissenting opinion, along with opinions in cases cited therein, revealed the diversity of views held by various members of the Court on the matter of knowledge in a forgery case. Essentially the issue is whether an indictment is fundamentally defective if it does not allege that the accused knew the writing in question was forged. The prior opinions are now withdrawn in favor of this one.

Appellant’s motion for leave to file motion for rehearing was granted February 21, 1979 to provide an opportunity for determining the majority view of the Court as presently constituted. With deference the writer will not “seize the day” for there is perceived an even more fundamental problem with the indictment: Simply stated, it fails to allege an offense.

Omitting the formal part, the indictment alleges that appellant, and two others, on the date stated did:

“with intent to defraud and harm another pass to Martha Harrison a writing that had been made to (sic) that it purported to be the act of another who did not authorize the act and which writing is to the tenor following: A $20.00 United States Federal Reserve note, Serial No. K749 591 23A
(here affixed is a copy of a $20.00 bill bearing that serial number)
and said writing purports to be and is part of an issue of money issued by the United States Treasury Department.”

Under his first ground of error in his original brief, appellant asserts that the indictment is fatally defective because nothing in it distinguishes the $20.00 bill from any other Federal Reserve note in that denomination and because the indictment itself clearly states that the note “is part of an issue of money issued by the United States Treasury Department.” We agree.

The language of the indictment, taken as a whole, with the copy of the bill or note exhibited is at once internally so inherently contradictory that the offense of forgery by passing is simply not presented. Obviously if the $20.00 bill “purports to be and is part of an issue of money” it is not a “forgery,” that is, it is not a counterfeit bill. As affixed to the indictment, the bill appears to be genuine;- that appearance of genuineness is confirmed by the statement in the indictment that it purports to be and is a part of an issue of money issued by the United States Treasury Department. As such, passing the bill was not an illegal act.

Appellant’s motion for rehearing is, accordingly, granted, the judgment of conviction reversed and further prosecution on the indictment in No. 9092 is ordered dismissed.

DALLY, Judge,

concurring.

It should also be pointed out that the indictment is deficient because it fails to allege an essential element of the offense, i. e., that the appellant had knowledge the Federal Reserve Note was counterfeit when it was passed. As was said in United States v. Bishop, 534 F.2d 214 (10th Cir. 1976):

“It is fundamental that the naked act of possessing and passing counterfeit money without knowledge that it is counterfeit does not establish the requisite knowledge essential to the crime of passing or the requisite intent to defraud.”

See also the opinion on original submission in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1977).

I concur in the reversal of the judgment.

      . See, e. g., Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1977) and Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977), when the Court was composed of five judges.


text:
    Thomas Gardner WALDON, Appellant, v. The STATE of Texas, Appellee.
    No. 57211.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 18, 1979.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and W. T. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This an appeal from a conviction for possession of more than four ounces of marihuana, wherein the jury assessed punishment at five years in the Department of Corrections and a $5,000.00 fine.

At the outset the appellant challenges the sufficiency of the evidence.

This case involves the same transaction as that discussed Gaffney v. State, Tex.Cr.App., 575 S.W.2d 537, and the same preliminary facts were adduced at the trial of appellant. Part of the statement of facts from that opinion is quoted here.

For some time prior to April 28, 1976, Officer Severn of the D.P.S. Intelligence Service was in contact with a confidential informant concerning other controlled substance transactions. In the course of these discussions, the instant transaction was revealed in general terms. Then, on April 28, 1976, between 9 and 10 a. m., the confidential informant advised Officer Severn that a load of marihuana was to be flown into the Terrell, Kaufman County, Texas, airport that night, around midnight, from Mexico. The make and identification number of the plane were provided, as was the pilot’s name. Officer Severn related this information to D.P.S. Narcotics Officer Spencer. At approximately 9:30 p. m., Officers Severn and Spencer arrived at the Terrell airport to maintain surveillance and seize the smuggled contraband when it arrived. At approximately 11:30 p. m., Officer Severn contacted his informant, who had previously provided reliable information, and was advised that due to inclement weather the airplane was diverted to the Temple, Bell County, Texas, airport. The informant described the vehicles, their license numbers, and their drivers’ names which were en route to rendezvous with the plane by way of Interstate 35. Officer Severn set out towards Temple while Officer Spencer related all the information to the Waco regional office of the D.P.S.
D.P.S. Narcotic Agent Aycock received Officer Spencer’s phone call around 12:05 a. m. on April 29. He was advised of the recent developments, . . . [and to be on the lookout for a 1975 Chevrolet Blazer, license number EV4103 and a 1976 blue Chevrolet pickup truck with a light camper, license number ER5181 in route from Dallas to the Temple airport.] . At 12:15 a. m. Agent Aycock advised Agent Mayben of the Temple office of this same information. Mayben in turn requested assistance of the Temple City Police Department. At 12:35 a. m. Agent Aycock proceeded to the Hewitt Exit South on I.H. 35 to look for the motor vehicles which were observed at 1:15 a. m. travelling at about 80 to 85 miles per hour. Surveillance of these vehicles was maintained from this point,

At approximately 1 a. m. and prior to the arrival of the vehicles at the Temple airport, several officers proceeded immediately to the airport terminal where one of the officers entered the terminal area and observed the night watchman and the appellant who was seated in the terminal facing toward the airplane parking area of the airport. The “suspect plane” was parked in the back parking area of the terminal at this time.

Surveillance of the terminal area then began from a nearby cemetery and was aided by the use of binoculars.

The vehicles entered the airport at about 1:30 a. m. The Blazer vehicle entered the road to the airport, made a U-turn and parked facing the highway. The pickup proceeded to the terminal, momentarily stopped and then continued from the front of the terminal around to the side and to the back of the terminal in the area where various airplanes were parked. The suspect aircraft was in the area at that time and parked in a northernly direction and was the only such airplane parked in that direction. Movement of more than one unidentifiable person was observed at this time as if something was being carried from the airplane to the pickup truck. Within about 15 minutes, the pickup left the area and eventually travelled toward the Blazer and then both vehicles proceeded toward the entrance gate where they were stopped by law enforcement authorities.

The record reflects that both vehicles were searched. Thirty one packages containing 572 pounds of marihuana were found in the pickup camper and its driver and sole occupant, Michael Gaffney, was arrested. A ground-to-air radio was also found in the pickup. This Court recently affirmed Gaffney’s conviction for possession of more than four ounces of marihuana. Gaffney v. State, supra.

The driver of the Blazer, Dan Wilkes, was also arrested, along with the appellant who was in the passenger’s seat of the Blazer. No marihuana was found in the Blazer or on the person of Wilkes or the appellant.. Several maps of Mexico, a transmitter, a following device detector, rental receipts inside a flight bag, and what was purported to be the appellant’s driver’s license and some of his clothing, as well as seats from the suspect plane, were found in the Blazer.

A key was taken from the appellant to open the door of the suspect plane. A search of the plane disclosed “marihuana sweepings” which amounted to .25 grams of marihuana.

The record also reflects that a Mr. Lallier in April of 1976 was vice-president of High Performance Aviation in Dallas and had occasion to lease an aircraft to one “Tom Waldon” during the latter part of April 1976. Subsequently, the aircraft was seized by the Department of Public Safety. Lallier did not see the “Tom Waldon” fly. the airplane off and could not identify the appellant in open court as the “Tom Waldon” in question.

This Court recently reversed the conviction of Dan Wilkes, the driver of the Blazer in which appellant was a passenger when arrested, on the insufficiency of the evidence linking Wilkes to the contraband in the other vehicle. The question presented by appellant is whether (1) his presence at the airport terminal with (2) the key seized from him and which unlocked the plane in question, (3) combined with evidence that he rented the plane, is sufficient evidence beyond that adduced in Wilkes, supra, to affirmatively link him to the marihuana in the camper truck. Although the evidence amounts to a strong suspicion and even probability that the appellant was guilty of the offense charged, the Legislature, Article 4476-15, Section 4.05(a), Y.A.C.S., and the prior holdings of this Court mandate that we find the evidence insufficient as a matter of law.

Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. Martinez v. State, Tex.Cr.App., 539 S.W.2d 885; Woods v. State, Tex.Cr.App., 533 S.W.2d 16; Curtis v. State, Tex.Cr.App., 519 S.W.2d 883, and cases cited therein. However, a finding of joint possession cannot be justified solely by proof of mere presence of an accused at a place where contraband is being used or possessed. Ayers v. State Tex.Cr.App., 570 S.W.2d 926; Brooks v. State, Tex.Cr.App., 529 S.W.2d 535; Harrison v. State, Tex.Cr.App., 555 S.W.2d 736. Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts. Hernandez v. State, Tex.Cr.App., 538 S.W.2d 127; Curtis v. State, supra; Payne v. State, Tex.Cr.App., 480 S.W.2d 732. This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband. Long v. State, Tex.Cr.App., 532 S.W.2d 591; Hineline v. State, Tex.Cr.App., 502 S.W.2d 703.

The evidence does not directly link the appellant to the contraband. It ties appellant into the plane in general, but not specifically at the time in question. There is no evidence that he flew the plane, that he landed it at the Temple airport, that the plane’s flight log or the log of the Temple airport ever reflected appellant as flying the airplane or being near it at any time. Assuming, however, that the key tied him to the airplane in which .25 grams of marihuana was found, there is not evidence to link him or Wilkes to the amount of marihuana over four ounces found in the other vehicle. The police first observed appellant in the terminal building sitting by himself. He was next observed as a passenger in the Blazer.

Granted that there are highly suspicious facts here, the State has failed to prove the requisite affirmative link between the contraband in question and the appellant.

It is also well established that a conviction based 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. Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481; Flores v. State, Tex.Cr.App., 551 S.W.2d 364; Easley v. State, Tex.Cr.App., 529 S.W.2d 522; Indo v. State, Tex.Cr.App., 502 S.W.2d 166. This is especially significant when the night watchman was in the terminal area with a view of the runway and plane parking area and could have shed light on the missing facts of this case.

Where circumstantial evidence relied on by the prosecution is somewhat weak and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellant court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. Schershel v. State, Tex.Cr.App., 575 S.W.2d 548; King v. State, Tex.Cr.App., 396 S.W.2d 409; 24 Tex.Jur.2d 427, Evidence, Section 745.

Given our disposition of this ground of error, w.e decline to discuss appellant’s other grounds of error. Having found that reversal must result in the instant case, we further conclude that no prosecution be had in this cause. The Double Jeopardy Clause of the United States Constitution precludes a second trial once the reviewing court has found the evidence legally insufficient. Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1. This ruling is fully applicable to State Court proceedings, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15.

The conviction is set aside and reformed to show acquittal.

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


author: ROBERTSON, Justice.

text:
    Leonard SCHECTER, Appellant, v. Naomi SCHECTER, Appellee.
    No. 19656.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 12, 1978.
    Rehearing Denied Feb. 7, 1979.

      Wm. Andress, Jr., Dallas, for appellant. Allan D. Hilton, Bill C. Hunter, Hunter, Stewart, Salzberger & Vineyard, Dallas, for appellee.
    Before GUITTARD, C. J., AKIN and ROBERTSON, JJ.
   ROBERTSON, Justice.

This is an appeal from the trial court’s division of property in a divorce action. Naomi Schecter, appellee, filed a petition for divorce against Leonard Schecter, appellant, and asked for a division of the community estate. Trial was to the court which granted a divorce, divided the property pursuant to Tex.Family Code Ann. § 3.63 (Vernon 1975), and made findings of fact and conclusions of law. We hold that the court did not abuse its discretion in dividing the estate, and accordingly, affirm.

In terms of specific assets, the court divided the community estate as follows:

Awarded to Wife
Asset Value
50 shares Leesona Corp. stock $ 852.04
100 shares Tracor Corp. stock 1,148.66
81.9 shares American General Bond Fund stock 1,902.27
Real estate checking account at Northpark National Bank 1,150.44
Personal and savings accounts at Northpark National Bank 1,262.70
Warren Way property 8,000.00
Phoenix Mutual Life Insurance Policy unknown
Keough Retirement Plan 10,000.00
TOTAL $24,316.11
Awarded to Husband
Asset Value
Optometry business equipment unknown
Savings accounts at United National Bank and Richardson Savings & Loan $ 8,000.00
Savings and checking account at Mercantile National Bank 998.39
Phoenix Mutual Life Insurance policy unknown
Keough Retirement Plan 10,000.00
Certificate of Deposit 10,000.00
TOTAL $28,998.39

The primary question on this appeal is whether the trial court abused its discretion in making the above property division. The standard of review is whether the property division is so manifestly unjust as to amount to an abuse of discretion. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 303 (1960); Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975); Goetz v. Goetz, 567 S.W.2d 892, 894 (Tex.Civ.App.—Dallas 1978, no writ). An unequal division of assets does not by itself establish an abuse of discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). Indeed, the figures indicate that appellant received a larger share of the community estate than appel-lee.

Appellant first contends that the trial court erred in finding that all of the following was appellee’s separate property: certain bank accounts in Casa Linda Bank and Republic National Bank; the interest from appellee’s separate certificates of deposit; and dividends from appellee’s separate stock. The record shows that the bank accounts were business accounts used in connection with a retail dress shop, the “Vogue”, which was appellee’s separate property. While it appears that the profits from this business would be community property, we cannot say that the failure to segregate these profits is an abuse of discretion. Since the trial court concluded that the estate of the parties has been divided in a manner that is fair, just, and equitable, the fact that it may have erred in holding that certain property is separate rather than community will not necessarily result in reversal. See Muns v. Muns, 567 S.W.2d 563, 567 (Tex.Civ.App.—Dallas 1978, no writ); Cooper v. Cooper, 513 S.W.2d 229, 233 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). Also, the trial court concluded as a matter of law that “if it had mistakenly labeled property as separate property that was community property, that such property should be community property and it is just and right that such property should be set aside to such individual as his or her separate property.” The same principles apply to the award of interest and dividends, which appear to be community property. Viewing the property settlement as a whole, we cannot say that the trial court committed an abuse of discretion.

Appellant next complains of the trial court’s failure to charge appellee’s separate estate for air conditioning improvements and monthly mortgage payments made on appellee’s home. He argues that these improvements and payments were made with community funds and that the community estate is entitled to reimbursement. Although this may be correct, the record reflects that appellee spent considerable amounts of her separate funds improving the community estate. Under the circumstances, we cannot say that the failure to grant reimbursement was an abuse of discretion by the trial court.

Appellant also raises a no evidence point with respect to the trial court’s granting appellee’s separate estate a right of reimbursement for funds used for the benefit of the community. In considering a no evidence point, we must view the evidence in the light most favorable to the court’s findings and disregard all evidence to the contrary. If there is any evidence of probative force to support the court’s findings, we are bound by these findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We are of the opinion that there is evidence sufficient to support the trial court’s grant of reimbursement. The record contains testimony and exhibits dealing with the specific transfer and use of appel-lee’s separate funds to benefit the community estate. Thus, we cannot substitute our judgment for that of the trial court.

We next address the appellant’s contention that the appellee failed to prove that the inventory of the “Vogue” was her separate property since she did not properly trace the inventory from the beginning to the end of the marriage. Thus, he argues that the property is community and that the court erred in failing to divide it. Appellant cites Jones v. Epperson, 69 Tex. 586, 7 S.W. 488 (1889); Middlebrook v. Zapp, 73 Tex. 29, 10 S.W. 732 (1889), and Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072, 1074 (1941) in support of his contention. These cases are all distinguishable. All three cases involved creditors levying on property that was claimed to be separate property as opposed to community. The courts refused to allow the mere allegation that such property was separate without more, to act as a defense to creditor’s claims. In cases such as the one at bar where the division of the property is at issue, we hold that the rule set out in Schmidt v. Huppman, 73 Tex. 112, 11 S.W. 175 (1889) controls. In Schmidt, the plaintiff ran a mercantile business. At the death of his wife, he filed an inventory and appraisement deducting the value of the inventory at the beginning of the marriage from the value at the end of the marriage. The heirs contested this and the supreme court held that the value of the inventory at the date of the marriage was the separate property of the husband. The court pointed out the following:

While the specific articles that made up the original stock had been sold, and their places supplied by others from time to time as the exigencies of the business required, the property was in fact the same, a stock of merchandise, and we think that there was not such a change in the property as would divest it of its separate character, to the extent of the goods owned by appellant at the time of the marriage. Id. at 116, 11 S.W. at 176.

The rule in Schmidt was followed in Blumer v. Kallison, 297 S.W.2d 898 (Tex.Civ.App.—San Antonio 1956, writ ref’d n. r. e.) in an opinion by Justice Norvell. We hold that appellee sufficiently traced the inventory of the “vogue” and thus, overrule this point.

The next argument that appellant raises is that the court erred in failing to credit him for the payment of $2,100 of temporary alimony. Appellant argues that since the trial court held that a pre-nuptial agreement between the parties, the validity of which is not attacked, provided that appellant would not seek temporary alimony, it was error for the court not to credit appellant with temporary alimony paid. Since the record shows that the court recognized the validity of the pre-nuptial agreement, we must assume that the court considered this when making its division, especially since it awarded appellant the largest share of the community. We cannot find any abuse of discretion with respect to this point.

Finally, appellant alleges that Tex. Family Code Ann. § 3.63 (Vernon 1975) directly conflicts with Tex.Const. art. I, § 3a (Texas Equal Rights Amendment) and is thus unconstitutional. We do not pass on this because no inequality is shown in view of our holding that appellant received a greater share of the community estate than did appellee.

Accordingly, we affirm.

      . This property was purchased for $30,000, subject to a mortgage of approximately $22,-000. Appellee is liable for this debt. No actual appraisal value appears in the record.

      . The face value of this policy is $50,000. However, the record does not reflect the cash surrender value of the policy. Even if we were to include the face value in the totals for property awarded, the decision and rationale of this opinion would not be changed.

      .The face value of this policy is $10,000. However, the record does not reflect the cash surrender value of the policy. Even if we were to include the face value in the totals for property awarded, the decision and rationale of this opinion would not be changed.

      . For the purposes of this opinion, we will assume that such a conclusion is valid since appellant fails to attack it.


author: GUITTARD, Chief Justice. AKIN, Justice,

text:
    Mary Sue CRAFT, Appellant, v. Jerry David CRAFT, Appellee.
    No. 19769.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 19, 1979.
    Rehearing Denied Feb. 21, 1979.

      Jay S. Fiehtner, Berman, Fichtner & Mitchell, Dallas, for appellant.
    Charles O. Shields, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for ap-pellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

Appellee has moved to dismiss this appeal for lack of jurisdiction. The question is whether a temporary order issued under section 11.11 of the Texas Family Code (Vernon 1975), is appealable. We hold that it is not appealable, and, accordingly, we grant the motion to dismiss.

The record before us tells a sad story of divorced parents in continuous litigation over custody of three children. The divorce decree of July 21,1975, appointed the mother managing conservator. The father subsequently moved to modify the decree. On August 8, 1977, the court appointed the father managing conservator of the eldest child, reciting that he had been residing with the father and that the mother had agreed to the change, but the court denied the motion with respect to the two younger children on the ground that their circumstances had not materially changed since the divorce decree. Less than a year later, the father filed an “emergency motion” to modify the decree with respect to the younger children, alleging that the mother was mentally ill, had made threats to kill the father in the presence of the children, and should not be allowed possession of the children outside the presence of a responsible adult. Accordingly, he prayed for an ex parte order modifying the previous decree and appointing him temporary managing conservator. The court issued such an ex parte order on June 2, 1978, and set a hearing for July 17. After notice to the mother, a hearing was held on July 21, with both parties and their counsel present. On August 7 the court signed an order removing the mother as managing conservator and appointing the father temporary managing conservator “pending trial of this cause.” The order further provides that the mother “shall not visit with” the children pending trial.

The mother has complied with the provisions of Rule 385, Texas Rules of Civil Procedure, for perfection of an appeal from an interlocutory order. On her motion we have granted two extensions of time for filing the statement of facts. She has also filed with us an application to suspend the trial court’s order pending this appeal. The father opposed the extensions and moved to dismiss the appeal on the ground that this court has no jurisdiction. We previously granted the extensions and overruled the application to suspend and the motion to dismiss. On consideration of appellant’s motion for rehearing, we now conclude that the motion to dismiss should be granted.

Appellant contends that the order in question is appealable under section 11.19 of the Family Code, which provides for appeals in suits involving the parent-child relationship. She also relies on section 11.11 of the Code, which provides for temporary orders in such cases; and on article 4662 of the Texas Revised Civil Statutes (Vernon 1952), which provides for appeals from orders granting or refusing temporary injunctions.

On this question, decisions of the courts of civil appeals are in conflict. The Tyler court has held such orders to be appealable. In re Stuart, 544 S.W.2d 821, 822 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). The Beaumont court and both Houston courts have held to the contrary. Knipe v. Colpitts, 551 S.W.2d 150, 151 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ); Johnson v. Parish, 547 S.W.2d 311, 312 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Carpenter v. Ross, 534 S.W.2d 447,448 (Tex.Civ.App.—Beaumont 1976, no writ).

We conclude that the Beaumont and Houston courts are correct in their view that the Code has not made such temporary orders appealable. It seems to us that if the legislature had intended such a drastic change from the pre-existing law, it would have used express language so providing, but we find no such language in the Code or elsewhere.

Of course, even “final” custody and support orders are temporary in the sense that they are subject to modification on showing a change in circumstances under section 14.08 of the Code. Before enactment of the Code, however, it was settled that an order was not appealable if it was interlocutory in the sense that it was effective only until a proper hearing could be held to determine custody or support. This rule was well established by such cases as Frost v. Frost, 467 S.W.2d 683 (Tex.Civ.App.—Texarkana 1971, no writ); Archer v. Archer, 407 S.W.2d 529 (Tex.Civ.App.—San Antonio 1966, no writ); Affolter v. Affolter, 389 S.W.2d 742 (Tex.Civ.App.—Corpus Christi 1965, no writ); Mendoza v. Baker, 319 S.W.2d 147 (Tex.Civ.App.—Houston 1958, no writ); Morrow v. Gallant, 312 S.W.2d 526 (Tex.Civ.App.—Austin 1958, no writ); Wardlaw v. Wardlaw, 267 S.W.2d 250 (Tex.Civ.App.—Waco 1954, no writ); and Goodman v. Goodman, 224 S.W. 207 (Tex.Civ.App.—Texarkana 1920, no writ). Those decisions are in accord with article 2249, Texas Revised Civil Statutes (Vernon 1971), providing that appeals may be taken from “every final judgment,” and they follow the general rule that no appeal can be taken from an interlocutory order unless such an appeal is expressly provided by statute. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944).

This background must be considered in construing the Texas Family Code, since, as appellant recognizes, it must be presumed that the legislature acted with full knowledge of all legal decisions on the subject matter of the legislation rendered before its enactment. Garner v. Lumberton Ind. Sch. Dist., 430 S.W.2d 418, 423 (Tex.Civ.App.—Austin 1968, no writ). The only provision of the Code dealing expressly with appeals is section 11.19. The pertinent provisions of this section are the following:

(a) Appeals from orders, decrees, or judgments entered in suits affecting the parent-child relationship, when allowed under this section or under other provisions of law, shall be as in civil cases generally.
(b) An appeal may be taken by any party to a suit affecting the parent-child relationship from an order, decree, or judgment:
(1) entered under Chapter 13 of this code;
(2) entered under Chapter 14 of this code appointing or refusing to appoint a managing conservator; appointing or refusing to appoint a pos-sessory conservator; ordering or refusing to order payments for support of a child; or modifying any such order previously entered;
(3) entered under Chapter 15 of this code terminating or refusing to terminate the parent-child relationship or appointing a managing conservator;
(4) entered under Chapter 16 of this code granting or refusing an adoption.

In our view, these provisions, like many other provisions of the Code, declare the law as it previously existed. McKnight, Commentary to the Texas Family Code, Title 2, 5 Tex.Tech.L.Rev. 281, 407 (1974). Nothing is said about temporary orders, and no reference is made to section 11.11, which provides for temporary orders. By contrast, specific references are made to Chapter 13, concerning legitimation; to Chapter 14, concerning conservatorship, possession, and support; to Chapter 15, concerning termination of parental rights; and to Chapter 16, concerning adoptions. Although final orders under those chapters would be ap-pealable anyway under article 2249, the drafters of the Code apparently intended Section 11.19 to be a comprehensive provision for appeals independent of general statutes defining appellate jurisdiction. Yet section 11.19 makes no reference to section 11.11, and neither does it include any other language suggesting an intent to change the law so as to provide for appeals from temporary orders. It is a well-accepted principle of statutory construction that the express mention of one thing, consequence, or class, is equivalent to an express exclusion of all others. State v. Mauritz- Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943); Carp v. Texas State Board of Examiners in Optometry, 401 S.W.2d 639, 642 (Tex.Civ.App.—Dallas 1966, no writ). Therefore, we construe the words, “an order . . . appointing or refusing to appoint a managing conservator” as an order that is “final” in the sense that it is subject to modification only on showing a change of circumstances under the provisions of section 14.08.

Appellant relies also on article 11.11 of the Code, which authorizes the trial court to make temporary orders in suits affecting the parent-child relationship. Subdivision (b) of this section provides:

Temporary orders under this section are governed by the rules governing temporary restraining orders and temporary injunctions in civil cases generally.

Appellant argues that “the rules governing temporary restraining orders and temporary injunctions in civil cases generally” include the provision for appeals of orders granting or refusing temporary injunctions in article 4662 of the Texas Revised Civil Statutes (Vernon 1952).

We do not construe this language as making all temporary orders in such suits ap-pealable. If the drafters of the Code had intended to make such a far-reaching change in appellate jurisdiction, it is reasonable to suppose that they would have done so explicitly in section 11.19, which expressly provides for appeals, and would not have left the matter for implication from the provisions of section 11.11(b). Since section 11.19 is obviously intended to be a comprehensive provision for appeals in cases arising under the Code, without dependence on general statutes defining appellate jurisdiction, it is unlikely that this reference in section 11.11 to rules governing temporary injunctions was intended to bring temporary custody and support orders within article 4662. The reference to “rules governing temporary restraining orders and temporary injunctions” may be interpreted as meaning the provisions of the Texas Rules of Civil Procedure concerning notices, hearings, recital of reasons for immediate action, and the like, and possibly also to the general rules of equity, such as the requirement of inadequacy of other remedies. It cannot reasonably be construed as meaning statutes defining appellate jurisdiction, such as article 4662. At least, that is not its necessary meaning, and we do not believe that either the drafters or the legislature so intended.

Neither do we believe that the reference to appeals in Chapter 17 of the Code establishes an intention to make temporary orders appealable. Chapter 17 concerns proceedings brought by public officers to obtain emergency orders for the protection of children. The only reference to appeals is in section 17.07, which provides, “An appeal from an emergency order made under this chapter does not stay the order.” Significantly, chapter 17 is not mentioned in section 11.19, although, as previously noted, that section expressly provides for appeals from orders made under chapters 13,14, 15, and 16. Moreover, even though section 17.-02 refers to section 11.11 and describes the order under chapter 17 as one “for the temporary care or protection of the child,” and section 17.04 authorizes appointment of a temporary managing conservator, an order under chapter 17 may, nevertheless, be “final” for the purpose of appeal if it is of indefinite duration rather than one which continues in force only until a further hearing in the particular proceeding. Also, an order under section 17.04 returning a child to his parents may be a final order. Section 17.07 eliminates any question that such an order may be stayed by an appeal. We cannot agree that this section necessarily implies that a temporary order made under section 11.11 is appealable. The argument that temporary orders under section 11.11 are appealable because section 17.02 refers to section 11.11, is too attenuated to provide solid support for an assumption of appellate jurisdiction.

Since this question is one of statutory construction, our notions of policy are relevant only in determining legislative intent. From this point of view, we are convinced that the stronger policy reasons support our construction that temporary orders are not appealable. Custody, visitation, and support litigation is often vexatious and acrimonious. Divorced and divorcing parents may harbor bitter feelings that lead them to employ the adversary system to satisfy personal cravings for vindication and vengeance. The victims of this process are the children, whose interests should be paramount. Their interests demand that litigation be as expeditious as may be consistent with fairness and justice. Their problems can only be aggravated by appeals from temporary orders in such cases.

Such appeals would often result in intolerable protraction of the litigation. They would frequently involve motions for suspension of temporary orders and for delays in preparation of the record, as does the attempted appeal in the present case. Further review by the supreme court on application for writ of error would also be available. Houston Oil Co. v. Village Mills Co., 109 Tex. 169, 202 S.W. 725, 726 (1918). Notwithstanding admonitions in such cases as Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959), and Charter Medical Corp. v. Miller, 554 S.W.2d 220, 223 (Tex.Civ.App.—Dallas 1977, no writ), that interlocutory appeals should not delay trial on the merits, attorneys rarely press for trial, and trial judges are reluctant to insist on proceeding while an interlocutory appeal is pending. The present case, for example, could have been tried on the merits in less time than that required to dispose of this appeal. The resulting delay would more than offset any benefit that would result from subjecting interlocutory orders in custody, visitation, and support cases to appellate review. Although a trial judge may occasionally abuse his discretion in issuing an interlocutory order, the harm is rarely, if ever, permanent, and the best remedy is an early trial on the merits. In absence of express language making such an order appealable, we cannot believe that the legislature intended to impose this additional burden on parents, children, and appellate courts.

Appellant also contends that the order appealed from is one granting a temporary injunction within article 4662 in view of the provision that the mother “shall not visit with” the children pending trial of the cause. If this contention were correct, this provision restricting visitation would be the only part of the order subject to review because of the well-settled rule that other interlocutory orders cannot be reviewed in an appeal from an order granting or refusing a temporary injunction. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389 (1950); Dickson v. Dickson, 516 S.W.2d 28 (Tex.Civ.App.—Austin 1974, no writ). We conclude, however, that the order is not injunctive, but rather one concerning custody and visitation. Any order defining visitation rights involves some degree of restraint. This court has recently held that not every temporary order imposing restraint is an appealable temporary injunction within article 4662. Bowden v. Hunt, 571 S.W.2d 550 (Tex.Civ.App.—Dallas 1978, no writ). The present order is not by its terms injunctive, and, consequently, we hold that it is not appealable.

Our former opinions are withdrawn and the appeal is dismissed.

AKIN, J., dissenting.

AKIN, Justice,

dissenting.

I cannot agree that this court lacks jurisdiction to review an order of the domestic relations court removing the mother as managing conservator and appointing the father temporary managing conservator. In my view, we have jurisdiction under Tex.Family Code Ann. §§ 11.11(b), 11.19 (Vernon 1975). Neither do I agree that the order prohibiting the mother from visiting with the children cannot be reviewed because even if we lack jurisdiction of the order changing custody, we still have jurisdiction of that part of the order denying the mother visitation rights under Tex.Rev.Civ. Stat.Ann. art. 4662 (Vernon 1952). In my view, these questions are separate and distinct, and, consequently, the answer to one does not determine our jurisdiction of the other. Accordingly, I must dissent.

With respect to the order terminating the mother as managing conservator and appointing the father temporary conservator, we have jurisdiction under section 11.11(b) which provides: “Temporary orders under this section are governed by the rales governing temporary restraining orders and temporary injunctions in civil cases generally.” [Emphasis added.] Temporary injunctions in civil eases are appealable under Tex.Rev.Civ.Stat.Ann. art. 4662 (Vernon 1952) and the procedure for such appeals is set forth in Tex.R.Civ.P. 385. As I read this statute, it makes all of the rules, whether procedural, substantive, or statutory, governing temporary injunctions applicable to temporary orders within the ambit of section 11.11 of the Texas Family Code. Consequently, an order changing custody, even though designated as “temporary”, is also appealable. In Interest of Stuart, 544 S.W.2d 821, 822 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). In my view, had the legislature intended the contrary view, it would have used the language “Rules of Civil Procedure” instead of just “rules.” The word “rules” is used in its broadest sense so that temporary orders under the family code are governed by all of the rules afforded temporary injunctions, including the right to appeal. Consequently, I do not regard Johnson v. Parish, 547 S.W.2d 311, 313 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ) as correctly decided and, thus, not sound authority for the majority’s view. In that case, the court correctly recognized that appealability turned on a construction of section 11.11(b), but narrowly construed the word “rules” to be limited to the Texas Rules of Civil Procedure as opposed to the broad construction used by the Tyler Court of Civil Appeals in Stuart.

Neither do I regard as authoritative the holding of the Beaumont Court of Civil Appeals in Carpenter v. Ross, 534 S.W.2d 447, 448 (Tex.Civ.App.—Beaumont 1976, no writ), also cited by the majority, that a temporary child custody order was not ap-pealable under section 11.19(b)(2). In arriving at its conclusion, that court set forth no basis for its holding nor did it even quote or discuss the language of the statute. Similarly, in Knipe v. Colpitts, 551 S.W.2d 150, 151 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ) that court did not discuss the basis for its conclusion that an order denying visitation is not appealable nor did that court refer to any specific section of the Texas Family Code, but instead merely cited Carpenter v. Ross, supra, and Johnson v. Parish, supra.

The majority has interpreted the phrase “rule governing temporary injunctions” as pertaining only to the Texas Rules of Civil Procedure with respect to notices, hearings, recital of the reasons for immediate action and the general rules of equity. I cannot accept this interpretation. Had the legislature intended this interpretation, it could have accomplished it by omitting the words “and temporary injunctions” since the interpretation given this section by the majority is accomplished by the use of the words “temporary restraining orders.” Under the majority’s construction, the language “and temporary injunctions” is rendered meaningless. It can only be given meaning by reading it to include the right to appeal afforded temporary injunctions by article 4662. Of course, under the rules of statutory construction every word is presumed to have some meaning or otherwise the legislature would not have used the words. E. g., Robertson v. State, 406 S.W.2d 90, 95 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n. r. e.).

The majority’s primary reason for holding this order not appealable is that section 11.19 entitled “appeal” does not specifically state that all temporary orders are appeala-ble. I cannot agree that such a statement in section 11.19 is necessary since section 11.19 provides:

(a) Appeals from orders, decrees, or judgments entered in suits affecting the parent-child relationship, when a1-lowed under this section or under other provisions of law, shall be as in civil cases generally.
(b) An appeal may be taken by any party to a suit affecting the parent-child relationship from an order, decree, or judgment:
(1) entered under Chapter 13 of this code;
(2) entered under Chapter 14 of this code appointing or refusing to appoint a managing conservator; appointing or refusing to appoint a pos-sessory conservator; ordering or refusing to order payments for support of a child; or modifying any such order previously entered;
(3) entered under Chapter 15 of this code terminating or refusing to terminate the parent-child relationship; or appointing a managing conservator;
(4) entered under Chapter 16 of this code granting or refusing an adoption. [Emphasis added]

As I read the language, as used in (a), “when allowed under this section or under other provisions of law,” it permits an appeal from orders set forth in section 11.-19(b), such as the order here modifying a previously entered order granting managing conservatorship to the mother, and “under other provisions of law.” The latter phrase, of course, would include section 11.-11(b) pertaining to temporary orders and article 4662. Furthermore, the legislature chose not to use the words “permanent” and “final” or any other words of limitation in section 11.19. By its express terms, section 11.19 does not limit appeal only to final orders with respect to appointments of managing or possessory conservators. This legislative intent is even clearer when sections 11.19 and 11.11(b) are read together.

Consequently, I cannot accept the majority’s construction that section 11.19 merely codifies the law as it existed prior to the adoption of the Texas Family Code. In arriving at this conclusion, the majority correctly notes that section 11.19(b) makes specific references to Chapter 13, concerning legitimation; to Chapter 14, concerning conservatorship, possession, and support; to Chapter 15, concerning termination of parental rights; and to Chapter 16, concerning adoptions. Then the majority notes that final orders under those chapters would be appealable without regard to section 11.19(b) under Tex.Rev.Civ.Stat.Ann. art. 2249 (Vernon 1971) and concludes that section 11.19 was intended to be a comprehensive provision for appeals under the Code independent of other general statutes defining appellate jurisdiction. In arriving at its conclusion, the majority fails to give effect or meaning to subdivision (a) of section 11.19, upon which I predicate this dissent.

Furthermore, although the majority takes note of the mother’s contention that Chapter 17, pertaining to emergency suits for protection of a child, is not specifically mentioned in section 11.19 and section 17.07 provides that an appeal from an order under that chapter does not stay the order, I cannot agree with the majority’s conclusion that an order under Chapter 17 is, nevertheless, “final” in the sense that it is for an indefinite duration. I find no language in Chapter 17 justifying that conclusion. Indeed, section 17.05 provides that if the child is not restored to its parent, guardian, or conservator, the court shall order such restoration of possession or direct that a new suit affecting the parent-child relationship be filed. Thus, under Chapter 17, the court’s order is necessarily temporary if a new suit affecting the parent-child relationship must be filed and can only be final if the child is restored to the parent. The fact that section 17.07 mentions an appeal from any order entered pursuant to Chapter 17 and is not specifically mentioned in section 11.19(b) reinforces my construction of sections 11.19(a) and 11.11(b) and negates the conclusion of the majority that temporary orders are not appealable under section 11.-19 because they are not specifically referred to as such by name. Moreover, section 17.-02 gives the state authority to act under section 11.11 as an alternative to Chapter 17. Indeed, it would be illogical to say that if the state chose to use section 11.11, the order would not be appealable, but if it chose to use Chapter 17, an appeal would be permitted.

I see no logical reason for ascribing to the legislature an intent to place a limitation on section 11.11(b) and construe it as not permitting an appeal as in temporary injunctions. Under the holding of the majority, no provision is made to enforce section 11.-11(b) if a trial court refused to follow the rules pertaining to temporary restraining orders and temporary injunctions because if these orders are not appealable, any complaint becomes moot when the matter is finally adjudicated on the merits. Thus, no relief is afforded an aggrieved party when a trial court ignores the mandate of section 11.11(b).

In addition to the clear language of sections 11.11 and 11.19, it appears to me that the better policy is to permit such appeals in these situations since a child’s life or welfare may be adversely affected even by a temporary order granting custody or denying visitation. Indeed, such orders may last for a period of many months, such as the order here, which was rendered in July of 1978 with final hearing scheduled in January of 1979. Even this trial date may be postponed due to the press of the trial dockets in this jurisdiction. Thus, even years may pass before a final determination is made and, in effect, the “temporary” order may indeed be a permanent order insofar as the child and parent adversely affected are concerned. In this regard, the underlying principle of the family code is that which is best for the child. Since temporary custody affects a substantial right with respect to the child’s best interest, I believe the legislature intended to change the common law and to make such temporary custody orders appealable. See Gordon v. Gordon, 33 Ohio App.2d 257, 294 N.E.2d 239, 241 (Ct.App.1973).

With respect to the appealability of that part of the order denying the mother the right of visitation, that order is appealable under the Texas Family Code, supra, and was appealable under case law prior to the adoption of the Texas Family Code. In Janelli v. Bond, 148 Tex. 416, 225 S.W.2d 824, 826-27 (1950), our supreme court held that a temporary injunction in a divorce case is appealable under article 4662 just as is any other injunction. Thus, apart from the clear language of section 11.11(b), read in conjunction with section 11.19(a), that part of the trial court’s order denying visitation right was appealable even prior to the adoption of the Texas Family Code.

In conclusion, since this court has jurisdiction of both the order removing the mother as permanent managing conservator and naming the father temporary managing conservator and the order denying the mother the right to visit her children during the pendency of the final hearing, I dissent from the order dismissing this appeal and adhere to the original opinion of this court.

      . We do not regard Martin v. Martin, 519 S.W.2d 900, 523 S.W.2d 252 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ) as bearing on this question, since that order, which involved a temporary suspension of visitation privileges for a specified period, was not interlocutory in the sense of continuing only until another hearing.