text:
    Gerald Lee BODDE alias Jerry Cannon, Appellant, v. The STATE of Texas, Appellee.
    No. 58337.
    Court of Criminal Appeals of Texas, En Banc.
    June 14, 1978.
    Rehearing En Banc Denied July 12, 1978.

      Frank M. Sheppard, Jr., court appointed, Marvin 0. Teague, court appointed, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Michael Kuhn and George Jacobs, Asst. Dist. Attys., Houston, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of capital murder; the punishment is death.

Forty-seven grounds of error are presented; however, twenty-five grounds of error are unsupported by argument and authority. See Art. 40.09, Sec. 9, V.A.C.C.P. We will consider some of the unbriefed grounds of error in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P. In those grounds of error which have been briefed appellant’s contentions concern the constitutionality of the capital murder statutes and the manner in which the death penalty was imposed; jury selection; the restriction of voir dire examination; the court’s failure to sua sponte declare a mistrial when a juror who had been empaneled revealed that he previously had been convicted of a felony; the court’s charge on circumstantial evidence at the punishment stage of the trial; and the sufficiency of the evidence in regard to punishment.

It is alleged that appellant, on or about January 4, 1975, intentionally caused the death of Bernice Hartsfield by hitting, beating, and striking her with a pipe and with an unknown instrument while in the course of committing robbery.

On the afternoon of January 3, 1975, appellant kidnapped Roberta Dodd, the six-year-old daughter of Mrs. Jean Dodd. Appellant previously had dated Mrs. Dodd and had shared an apartment with her and her three children for several months. The next day appellant talked to Mrs. Dodd by telephone and demanded $1,000 ransom for her daughter; Mrs. Dodd then contacted officers of the Houston Police Department, and they established electronic surveillance on her telephone. Appellant called Mrs. Dodd again on January 5 and repeated his ransom demand; he also told her that if she notified the police he would “send Roberta home in a pine box.” Appellant called again on January 6 and instructed Mrs. Dodd to bring the money to a fast food restaurant in Houston where she would be met by a third party.

Mrs. Dodd followed appellant’s instructions; after telephone calls from appellant and a conversation with a third party whom appellant instructed her to meet at a nearby apartment, she met appellant outside the apartment complex. Appellant told Mrs. Dodd that her daughter had witnessed a murder, “and if I can kill an old lady, I can kill a child.” After talking with Mrs. Dodd for approximately twenty minutes concerning the return of Roberta and payment' of the ransom, appellant was arrested by officers who were hiding in one of the apartments at the complex. Appellant was carrying a pistol. Appellant subsequently led officers to an apartment in San Antonio where Roberta Dodd was found.

The car which appellant was driving when he was arrested was registered to the deceased, in whose home the appellant had been a tenant. Non-negotiable bonds and credit cards in the deceased’s name as well-as diamond rings belonging to her were found in the apartment which the appellant had rented in San Antonio. Appliances and clothing belonging to the deceased were found in her car. The deceased’s body was found wrapped in a quilt and tied with electrical cord in a closet of her home. An autopsy revealed that her death was caused by multiple fractures of the skull, compatible with having been struck repeatedly by a blunt instrument.

A. E. Jackson, the attorney of the deceased, testified that he was present at her home on the morning of January 3,1975, to discuss the revision of her will; bonds worth $12,000 belonging to the deceased were lying on the kitchen table during the discussion. Appellant entered the kitchen, and he and Jackson were introduced. The deceased, who was eighty-one years old, left an estate of $789,000.

Appellant concedes that the same contentions that he has raised regarding the constitutionality of the Texas death penalty statutes have been decided adversely to him. See Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975), affirmed, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Brock r. State, 556 S.W.2d 309 (Tex.Cr.App.1977); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976). We adhere to our previous disposition of these contentions. Appellant also attacks the statutory scheme for capital punishment on a basis that this Court has not had occasion to decide. He argues that appellant was deprived of due process because he could not testify at the punishment hearing and admit his guilt without waiving error that occurred during the guilt stage of the trial. See Downey v. State, 505 S.W.2d 907 (Tex.Cr.App.1974); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1972). We cannot say that this common-sense rule of procedure denied appellant due process of law.

Appellant also contends that capital punishment is wantonly or freakishly imposed in Harris County because the decision whether to seek the death penalty is made by the district attorney, who acts without written guidelines. He argues that the prosecutorial discretion in deciding whether to seek the death penalty is unfettered, and therefore impermissible. In short, appellant’s complaint is that the prosecutor may decide not to seek the death penalty in some cases in which it arguably could be imposed. In rejecting a similar contention in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court reasoned as follows:

“[T]he petitioner . . . notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them .
The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution.”

See Jurek v. Texas, supra; Franklin v. State (No. 57,348, decided May 24, 1978); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).

Appellant contends that this state’s statutory scheme for the selection of jurors in a capital case, see Arts. 35.15, 35.17, 37.071, V.A.C.C.P.; V.T.C.A. Penal Code, Sec. 12.-31(b), does not comport with the constitutional requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This question has been resolved adversely to appellant’s contention. Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294; Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976). Appellant also urges that eight venire members were improperly excluded from-the jury.

Appellant concedes that venire members Kattie Mae Thomas, Ira Pay, Frances Dove, and Louis Williams were or “may very will have been” disqualified under Witherspoon, but argues that they were improperly excluded because they were not shown to have been disqualified under V.T. C.A. Penal Code, Sec. 12.31(b). In a capital murder case, a prospective juror may be disqualified under either Witherspoon or Sec. 12.31(b) or both. Franklin v. State, supra; Brock v. State, supra; Moore v. State, supra. A prospective juror who is disqualified under Witherspoon need not be disqualified or even questioned under Sec. 12.31(b). Franklin v. State, supra; Brock v. State, supra. Conversely, a prospective jur- or who is disqualified under Sec. 12.31(b) need not be disqualified or questioned under Witherspoon. Franklin v. State, supra; Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978); Burns v. State, supra; Moore v. State, supra.

These four venire members testified that under no circumstances could they vote to return a verdict which would result in the imposition of the death penalty. They were disqualified under Witherspoon. Prospective jurors Thomas and Pay also testified that knowing that death was a possible punishment would affect their deliberations. They were disqualified under Sec. 12.31(b) as well.

Clifford Minor testified that under no circumstances could he vote to return a verdict that would result in the imposition of the death penalty. He was disqualified under Witherspoon.

Bobbie Thompson testified that under no circumstances could she vote to return a verdict that would result in the imposition of the death penalty; she also testified that knowing that death was a possible penalty would affect her deliberations. She was disqualified under Witherspoon and Sec. 12.31(b). The appellant’s counsel did not question Thompson on voir dire.

Jan Elizabeth Scott testified repeatedly and unequivocally that in answering the second question at the punishment hearing, Art. 37.071(b)(2), V.A.C.C.P., she would hold the State to a more stringent standard of proof than that required by the statute, “beyond a reasonable doubt.” She was properly excluded for cause under Art. 35.15(b)(3), which provides for the exclusion of a venire member who “has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.” See Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978); Moore v. State, supra; Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972), cert. denied 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199.

Barbara Teter testified that she had had a nervous breakdown approximately eighteen months previously, at which time she was hospitalized for four months and given shock treatments. She expressed serious reservations about her ability to serve as a juror and testified that if she were selected as a member of the jury and the jury were sequestered, she might again experience emotional problems. The court excused Teter on its own motion. When the prospective juror was not challenged for cause by the State, the court should not have excused her on grounds which did not show an absolute disqualification. See Art. 35.19, V.A.C.C.P.; Valore v. State, 545 S.W.2d 477. (Tex.Cr.App. 1977); Moore v. State, supra; Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App. 1973). The venire member certainly would have been subject to a challenge for cause under Art. 35.-16(a)(4) on the ground that she had “such bodily or mental defect or disease as to render [her] unfit for jury service . . ” Appellant has not shown how he was harmed by the exclusion of Teter nor has he established that he was tried by a jury to which he had a legitimate objection. See Valore v. State, supra; Moore v. State, supra; Henriksen v. State, supra. Moreover, when the venire member was excused, appellant merely excepted to the court’s ruling and did not object, as he does on appeal, that the venire member was not challenged for cause. Nothing is presented for review. See Moore v. State, supra.

Appellant complains that the court erred in restricting his voir dire examination of prospective jurors Clifford Minor and Darlene Weddle. The record reflects that counsel for appellant questioned Minor extensively, that the court in no way restricted the voir dire examination of Minor, and that appellant made no trial objection that his voir dire examination of Minor was improperly limited. Appellant’s ground of error as to venire member Minor is not supported by the record and is wholly without merit.

Venire member Weddle stated that in no case in which a defendant was found guilty of first degree murder (a lesser included offense of the offense of capital murder, for which appellant was prosecuted) could she assess the minimum punishment, imprisonment for five years. The court properly sustained the State’s challenge for cause. See Art. 35.16(b)(3), supra; Chambers v. State, supra; Moore v. State, supra; Cherry v. State, supra. Appellant contends that the court erred in refusing his request to question Weddle after she had been disqualified. The trial court may impose reasonable restrictions on the exercise of voir dire examination. See Emanus v. State, 526 S.W.2d 806 (Tex.Cr.App. 1975); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App. 1974); Lewis v. State, 488 S.W.2d 740 (Tex.Cr.App. 1973); McCarter v. State, 478 S.W.2d 524 (Tex.Cr.App. 1972). Duplicitous questions may, within the court’s discretion, be limited to curb the prolixity of what can become the lengthiest part of a criminal proceeding. (Transcription of the voir dire examination required more than five thousand legal size pages in the instant case.) See Smith v. State, supra; Cook v. State, 398 S.W.2d 284 (Tex.Cr.App. 1966).

Weddle stated unequivocally several times that she never could assess the minimum punishment for first degree murder. The venire member having shown beyond any doubt that she was disqualified, the court did not abuse its discretion in refusing to allow her to be questioned further. See Ortega v. State, 462 S.W.2d 296 (Tex.Cr. App.1970); Smith v. State, supra.

Even though there was no trial objection, appellant insists that the court erred in failing to grant a mistrial on its own motion when it was revealed that a juror was a convicted felon. Joe E. Howard was the second juror selected. After being sworn, he was excused by the court until the remainder of the jury was chosen. Eleven days later, after three additional jurors had been selected, Howard advised the court that he previously had been convicted of a felony, a fact which he had not disclosed before he was selected as a juror. Howard subsequently appeared in court, and counsel for appellant and the State, as well as the court, questioned him concerning his conviction and his failure to disclose it during voir dire examination. He then was excused without objection.

Since Howard was absolutely disqualified from serving as a juror, Art. 35.-16(a)(2), V.A.C.C.P., the court properly excused him. Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768 (1935). Appellant contends that the court should have declared a mistrial on its own motion and excused all those jurors who had been selected, because Howard had “tainted” and rendered void the entire proceedings before he was excused. We do not agree. Howard heard no evidence in the trial of the case; he was instructed by the court when he was selected not to discuss the case. We are unable to discern how he tainted the proceedings in any way or how appellant was harmed by the court’s failure to discharge those jurors who already had been selected. See Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App. 1968); Black v. State, 46 Tex.Cr.R. 590, 81 S.W. 302 (1904).

Appellant insists the court at the punishment phase of the trial improperly refused his requested charge on circumstantial evidence regarding the two questions under Art. 37.071(b), supra. The court instructed the jury that the State was required to prove beyond a reasonable doubt that affirmative answers should be given to the two questions on punishment, and also instructed the jury as follows:

“In this case the State relies upon circumstantial evidence for affirmative answers to each of the foregoing Special Issues. In order to warrant such answer on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt; all the facts (that is the facts necessary to the conclusion) must be consistent with each other and with the main facts sought to be proved; and the circumstances taken together must be of a conclusive nature, leading on the whole, to a satisfactory conclusion and beyond a reasonable doubt that the Special Issue should be answered ‘Yes’, and unless they do so beyond a reasonable doubt, you must resolve that doubt in the defendant’s favor and answer the Special Issue ‘No’.”

A circumstantial evidence charge is not required on every facet of a case that is supported by circumstantial evidence. Franklin v. State, supra; Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App. 1977). Such a charge is required only when circumstantial evidence is used to prove the culpable act, which is a matter of objective historical fact; proof of mens rea, a psycho-logic fact, does not require the charge. Since deliberation and expectation (which the State is required to prove regarding the punishment questions) arise from internal psychologic processes, no charge on circumstantial evidence at the punishment hearing is required. Franklin v. State, supra; see Shippy v. State, supra; King v. State, 553 S.W.2d 105 (Tex.Cr.App. 1977). The court’s charge, which was submitted to the jury before our decision in Shippy v. State, supra, exceeded that to which appellant was entitled.

Appellant also urges that the court improperly restricted voir dire examination by prohibiting him from questioning the prospective jurors concerning the court’s charge on circumstantial evidence at the punishment stage of the trial. Since appellant was not entitled to such a charge, the court did not err in so limiting the voir dire examination. See Art. 35.17, V.A.C.C.P.

' Appellant’s final contention is that the evidence is insufficient to sustain the jury’s findings that his conduct was deliberate and that there was a probability he would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071(b)(1), (2), supra. Evidence adduced at the guilt phase of the trial showed that appellant killed the deceased, an 81-year-old widow who had rented him a room in her home, by bludgeoning her with a blunt instrument while robbing her. The deceased’s skull was crushed, and her death was caused by bits of bone becoming embedded in her brain. It also was shown that appellant had kidnapped the six-year-old daughter of a woman with whom he once had lived and had threatened to kill the little girl if his ransom demand of $1,000 was not met. Appellant was carrying a pistol when he was arrested.

At the punishment stage of the trial, the State introduced evidence that appellant had been convicted of theft and bigamy. Five witnesses testified that appellant’s reputation for being a peaceful and law-abiding citizen was bad. The evidence is sufficient to support the jury’s determination that appellant’s conduct was deliberate and that appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Felder v. State, 564 S.W.2d 776 (Tex.Cr.App., decided April 26, 1978); Brock v. State, supra; cf. Warren v. State, 562 S.W.2d 474 (Tex.Cr.App. 1978).

Likewise, we find the evidence adduced at the guilt stage of the trial, as discussed in this opinion, supra, sufficient to sustain the conviction. The cumulative force of the incriminating circumstances was sufficient for the jury to find appellant guilty of murder while in the course of committing robbery.

We now shall consider several matters in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P.

Roberta Dodd, who was six years old when she was kidnapped by appellant and seven years old at the time of trial, was called as a witness outside the presence of the jury. She took the stand on several occasions and, despite prolonged questioning by the court as well as the prosecutor, would not answer questions. The court ruled the child incompetent as a witness. Art. 38.06(2), V.A.C.C.P. The court then allowed an assistant district attorney to testify before the jury concerning the State’s attempts to qualify the witness and her refusal or inability to testify. Since the child had been kidnapped before the deceased was killed, and appellant had stated to her mother that the child was present during the commission of the murder, the child was a material witness. The court acted properly in allowing the State to explain its failure to produce the child as a witness. See Green v. State, 167 Tex.Cr.R. 272, 320 S.W.2d 818 (1958); Martinez v. State, 165 Tex.Cr.R. 244, 306 S.W.2d 131 (1957); Chandler v. State, 157 Tex.Cr.R. 353, 248 S.W.2d 736 (1952). United States v. Malizia, 503 F.2d 578 (2d Cir. 1974), cert. denied, 420 U.S. 912, 95 S.Ct. 834, 42 L.Ed.2d 843; United States v. McCaskill, 481 F.2d 855 (8th Cir. 1973); Schumacher v. United States, 216 F.2d 780 (8th Cir. 1954), cert. denied, 348 U.S. 951, 75 S.Ct. 439, 99 L.Ed. 743; 2 Wigmore, Evidence, Sec. 290 at p. 178 (3d ed. 1940).

We also observe that appellant objected to the court’s charge because it failed to submit to the jury the question of whether a common law marriage existed between appellant and Mrs. Dodd, in which case she would have been incompetent to testify. Art. 38.11, V.A.C.C.P.

A claim of common law marriage is closely scrutinized by the courts. Chatman v. State, 513 S.W.2d 854 (Tex.Cr.App. 1974); Krzesinski v. State, 169 Tex. Cr.R. 178, 333 S.W.2d 149 (Tex.Cr.App. 1960); Welch v. State, 151 Tex.Cr.R. 356, 207 S.W.2d 627 (1948). There are three elements which are essential to establish such a marriage; (1) an agreement to become husband and wife; (2) cohabitation pursuant to that agreement; and (3) a holding-out of each other to the public as husband and wife. Chatman v. State, supra; Archie v. State, 511 S.W.2d 942 (Tex.Cr.App. 1974). The agreement of marriage should be specific on both sides. Chatman v. State, supra; Krzesinski v. State, supra; Welch v. State, supra. Although the better view is that such issues should be decided by the trial judge, see 9 Wigmore, Evidence, Secs. 2549-50 (3d ed. 1940), prior decisions of this Court dictate that this issue, when raised by the evidence, be submitted to the jury. Shields v. State, 402 S.W.2d 761 (Tex.Cr.App. 1966); Krzesinski v. State, supra; Welch v. State, supra. In the case at bar, there is no evidence of any agreement between appellant and Mrs. Dodd to become husband and wife. Moreover, the record reflects that Mrs. Dodd still was married to Mr. Dodd at the time she was living with appellant, and consequently she and appellant could not have entered into a valid marriage agreement. In re Greathouse’s Estate, 184 S.W.2d 317 (Tex.Civ.App.—San Antonio 1944, no writ). Accordingly, the court did not err in refusing to submit that issue to the jury.

We also shall discuss the lawfulness of the searches of appellant’s person, the car he was driving when he was arrested, and the apartment in San Antonio. When appellant was arrested he was searched, and a .32 caliber pistol and a set of keys were seized. The search of appellant was conducted incident to his arrest and did not exceed the permissible scope for such a search. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App., decided May 10,1978). The court did not err in admitting these items in evidence.

After appellant was arrested he directed officers to a car parked nearby which he said he had been driving. The car belonged to the deceased, and a subsequent search of it disclosed several items of the deceased’s personal property. Since appellant did not own the car and was not in possession of it when it was searched (the officers having taken custody of it for its rightful owner), the appellant lacked standing to contest the search. Presented with similar facts, another court said:

“In the present case, the court refuses to allow petitioner standing to challenge the search of an automobile, which petitioner was in possession of only by reason of the murder he committed.”

Meade v. Cox, 310 F.Supp. 233 (W.D.Va.1970), affirmed 438 F.2d 323 (4th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 234, 30 L.Ed.2d 182. See also United States v. Ankrom, 446 F.2d 1402 (5th Cir. 1971); United States v. Kucinich, 404 F.2d 262 (6th Cir. 1968); Rodgers v. United States, 362 F.2d 358 (8th Cir. 1966), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454.

Bonds and rings belonging to the deceased, which were found in the apartment appellant rented in San Antonio, were admitted in evidence. They were discovered by appellant’s landlady, who entered the apartment after he had been arrested so that she could prepare it for a new tenant. Since she was not a law enforce-

ment officer or acting as the agent of law enforcement officers, her actions were not subject to the Fourth Amendment prohibition against unreasonable searches and seizures. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Gaines v. State, 95 Tex.Cr.R. 368,251 S.W. 245 (1922); United States v. Knox, 458 F.2d 612 (5th Cir. 1972); Barnes v. United States, 373 F.2d 517 (5th Cir. 1967). We do not understand Art. 38.23, V.A.C.C.P., to render inadmissible the items seized by appellant’s landlady. Since she was rightfully on the premises, whatever incriminating facts or circumstances were discovered by her were admissible. See Parsons v. State, 160 Tex. Cr.R. 387, 271 S.W.2d 643 (Tex.Cr.App. 1953), cert, denied, 348 U.S. 837, 75 S.Ct. 36, 99 L.Ed.2d 660; Dubbs v. State, 143 Tex. Cr.R. 82, 157 S.W.2d 643 (1942).

The record shows that appellant’s trial was fair, that he was represented by experienced, appointed counsel, and that he was afforded all of his constitutional rights. Given the facts surrounding the brutal killing for which appellant was convicted, and his background, we cannot say that the severe penalty which was assessed is inappropriate.

The judgment is affirmed.

ROBERTS and PHILLIPS, JJ., concur in result.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Preston James GRANT, Appellant, v. The STATE of Texas, Appellee.
    No. 55331.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 19, 1978.
    Jon H. Burrows, Temple, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a vehicle. Punishment was assessed at ten years’ imprisonment.

In his first ground of error appellant argues that there was a material and fatal variance between the allegation and the proof of the name of the complainant thus rendering the evidence insufficient to sustain the conviction. The indictment alleges that the complainant’s name was Mary Harrington; the record reflects that the complainant’s name was Marion Harrington. Also, there is no evidence that the complainant was known by the name “Mary Harrington.” See Article 21.07, V.A.C.C.P.; Martin v. State, Tex.Cr.App., 541 S.W.2d 605. The State argues that there is not a material variance because the names Mary and Marion are idem sonans.

The phrase idem sonans means:

“‘Of the same sound’, and names are idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long continued usage has made them identical in pronunciation, irrespective of the rules of orthography. In other words, identity of sound is regarded as a surer method of measuring the similarity of names than identity of spelling, and so long as the names can be sounded alike ‘without doing violence to the powers of the letters,’ any variation in orthography is immaterial, provided the misspelling does not transform the name into a wholly distinct appellation.” Martin v. State, supra, 606-07, quoting from Pedrosa v. State, 155 Tex.Cr.R. 155, 232 S.W.2d 733.

In Martin, we concluded that the resolution of issues involving the rule of idem sonans would best be left to the trier of fact because:

“[A] trial judge or jury, having heard the pronunciation of the names in question by the parties involved, is in the better position to determine whether ‘or not the names are or can be sounded the same.”

Consequently, we held:

“[W]e will therefore refrain from disturbing on appeal a jury or trial court determination that names in question are idem sonans unless evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice.” at pages 607-608.

In the present case, objection was timely raised at trial by motion for instructed verdict. Although the jury was instructed to resolve the issue, there was no evidence that “Mary” and “Marion” may be pronounced the same, and no evidence to support the jury charge. See Martin, supra, at 608. We hold that the names are patently incapable of being sounded the same, and reverse. Moreover, not only are the names incapable of being sounded the same but the misspelling effectively transforms the name “Mary” into a wholly distinct appellation, i. e., Marion. Martin v. State, supra; Pedrosa v. State, supra; Chaverea v. State, 141 Tex.Cr.R. 592, 150 S.W.2d 241. For these reasons we conclude that the names are not idem sonans and thus the evidence is insufficient to sustain the conviction.

Accordingly, the judgment is reversed and the cause remanded.

      . After the State rested and the jury was removed, these events occurred:
      “THE COURT: Do you have anything to support I suppose the contention that this is the same person who is the owner that is alleged in the indictment?
      “MR. MAHLER [Prosecutor]: Yeah. That is Mary Harrington. She [sic] goes by the name of Mary. I should have cleared that up.
      “THE COURT: You sure should have because he stated up here on the stand that his name was not Mary.
      “MR. HOLBROOK [Defense counsel]: He said Marion.
      “MR. MAHLER: I can recall him and clear that up.”
      The complainant was not recalled, and there was no evidence that Mr. Harrington went by the name of Mary.


author: ROBERTS, Judge.

text:
    Felipe ZAMORA, Appellant, v. The STATE of Texas, Appellee.
    No. 57314.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 19, 1978.
    No appearance for appellant.
    No appearance for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation where appellant was convicted of the offense of burglary of a building; the punishment, four years’ confinement in the Department of Corrections.

The record is before us without a transcription of the court reporter’s notes or bills of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Art. 40.09(9), Vernon’s Ann.C.C.P. Although record reflects that appellant was represented by court-appointed counsel at the initial proceedings in which he was placed on probation, the record is completely silent concerning whether or not appellant was indigent during the probation revocation proceedings. Appellant apparently did not request appointed counsel during the revocation proceedings and did not request that counsel be appointed for purposes of appeal or that a free transcription of the court reporter’s notes be provided him because of indigency. This Court has held that it is incumbent upon the appellant, whether indigent or not, to exercise due diligence in securing a copy of the court reporter’s notes. Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Ex parte Thorbus, 455 S.W.2d 756 (Tex.Cr.App.1970). While, as previously stated, there is nothing in the record to reflect that appellant is presently indigent, it should be noted that indigents are also required to adhere to the time requirements imposed by Art. 40.09, Vernon’s Ann.C.C.P. See Hoagland v. State, 541 S.W.2d 442 (Tex.Cr.App.1976); Rhoda v. State, 514 S.W.2d 937 (Tex.Cr.App.1974). Assuming arguendo that appellant is indigent, he has not made any request for a determination of indigency nor a free transcription of the court reporter’s notes. Further, appellant’s counsel has been notified of the completion and approval of the record in this cause and has failed to file a brief. We conclude that the complete inaction of appellant demonstrates the lack of diligence in this cause and nothing is presented for review.

We have found nothing which would require our review in the interest of justice under Art. 40.09(13), Vernon’s Ann.C.C.P.

The judgment is affirmed.

      . After this appeal was filed in this Court, we received a “motion to withdraw appeal notice,” signed by appellant and his attorney, as well as a copy of an order, signed by the trial judge, which purports to grant the motion. The trial judge did not have authority to grant the motion after this Court obtained jurisdiction of appellant’s case. Page v. State, 532 S.W.2d 341, 342, n. 1 (Tex.Cr.App.1976). Nor can we consider appellant’s motion as a motion to dismiss the appeal in this Court, since the motion is not properly authenticated. Page v. State, supra.


author: ONION, Presiding Judge.

text:
    Ex parte Cecil W. BAIN Ex parte Thomas M. THURMOND.
    No. 58595.
    Court of Criminal Appeals of Texas, En Banc.
    July 19, 1978.

      John E. Clark and Earle E. Cobb, Jr., San Antonio, for appellant.
    No appearance for the State.
   ORDER

ONION, Presiding Judge.

On this the 19th day of July, A. D., 1978 came on to be heard the application for writ of habeas corpus by petitioners Cecil Bain and Thomas M. Thurmond. Petitioners, who are San Antonio attorneys, contend they are being unlawfully restrained of their liberty by the respondent, Judge John G. Benavides, Judge of the 187th District Court of Bexar County, who has “designated” and ordered them subject to contempt proceedings, to represent one James Buff-ington in a capital murder case, without being retained by Buffington or appointed by the court to represent the defendant, and thus would be required to serve without compensation.

They contend the court’s order is based on evidence indicating that they had received adequate legal fees from Buffington for civil and other legal services not connected with the capital murder charge.

Petitioners argue that there is no justification for the trial court to use its contempt powers to order them to represent Buffing-ton without compensation; that such action violates their rights under the Thirteenth and Fourteenth Amendments, United States Constitution, and Article I, §§ 3 and 19 of the Texas Constitution. They complain the threats of contempt to compel their compliance with the court’s order deprives them of their liberty and property without due process of law, and the court is exercising control on them causing them to devote their time and resources to the preparation and defense of a capital murder case wholly without compensation, and that such order was entered without authority.

The petitioners further claim a violation of the equal protection clause of the Fourteenth Amendment as they are required to perform legal services in a capital murder case without being retained (a) by a client or (b) appointed pursuant to a statute to represent an indigent client who is entitled to legal services at no expense to himself. Petitioners assert they have been singled out by respondent for unique and punitive treatment, and they are without any other effective remedy to regain their “liberty” and prevent further violation of their rights except by writ of habeas corpus.

Petitioners note that on October 10, 1977 petitioners sought relief by application for writ of mandamus filed in the Supreme Court of Texas. On October 26,1977, without a hearing, the Supreme Court declined to consider said application.

“The writ of habeas corpus is intended to be applicable to all . cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” Article 11.23, Y.A.C.C.P.

Article 11.22, V.A.C.C.P., defines “restraint” as:

“. . . the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.” (Emphasis added.)

The record before us reflects that after petitioners’ “designation” as counsel for Buffington they announced “not ready” at a trial setting and were immediately held in contempt of court, taken into custody, and held until they made bail pending a hearing before another judge. They were later purged of contempt only when they agreed to prepare for the defense of Buff-ington, but they expressly reserved their objections and exceptions to the court’s earlier orders.

We conclude that if the facts asserted by petitioners are true the respondent’s order constitutes a “restraint” within the scope of habeas corpus relief, Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Cr.App.1977), and falls within our habeas corpus jurisdiction, Article V, § 5, Texas Constitution, regarding criminal law matters as the complained of order was entered in a criminal case.

Petitioners have brought forward with their pleadings the transcription of the court reporter’s notes of the hearing on Buffington’s affidavit of indigency on July 29, 1977, at which time the complained of order was entered, and the transcription of the court reporter’s notes at the hearing on the motion to vacate the July 29th order, which hearing was conducted on September 9, 1977, and which motion was denied.

The record at such hearings reflects that Buffington’s wife was killed in March, 1976. A few days later the husband of Buffing-ton’s secretary (an attorney) referred Buff-ington to petitioner Bain, who appeared with Buffington at the police station on two occasions. It is not clear whether Buffington was a suspect or whether the investigation had begun to focus on him. Sometime in April, 1976 petitioner Thurmond was employed by Buffington to collect the proceeds from certain life insurance policies on the life of Buffington’s wife and act as attorney for the three minor Buff-ington children in the collection of certain insurance proceeds on their mother’s life. He was employed to do some corporate work concerning difficulties Buffington was having with his business partner, as well as “some outside problems.” Thurmond related his law firm had a contingency fee contract with Buffington for collections of the insurance proceeds which provide for 25% of the proceeds if collected without litigation and 33Vs% of the proceeds if collected after litigation. The record shows Thurmond collected $229,621.00 for the minor children in insurance proceeds without litigation, and that the law firm of which petitioners are members received $23,301.00 as “reasonable attorneys’ fee” approved by the probate court. Thurmond related the fee had been cut to 10% of the proceeds as a matter of fairness. It also appears that Thurmond collected $139,-000.00 in insurance proceeds from policies where Buffington was the beneficiary. For this and other civil law work, Thurmond received from Buffington $9,900.00 in legal fees. An additional $75.00 was charged for securing an order from the probate court allowing a change in the nature of the certificates of deposit taken out for the children.

Petitioner Bain testified that he received a $6,250.00 from Buffington for legal services rendered. While Thurmond described his work as involving civil law matters and that Bain’s work involved criminál law matters, Bain invoked the attorney-client privilege when asked what services had been rendered. Both Bain and Thurmond testified, however, they had not been paid “in this criminal case.” Buffington testified he had paid Bain some $6,000.00 but that it was not for “this criminal matter” and had paid Bain “nothing” on this case. There are indications in the record Buffington has other pending criminal matters. It would thus appear that petitioners’ law firm received $16,225.00 for work done for Buff-ington and $23,301.00 for collecting the insurance proceeds for the minor children, or a total of $39,526.00.

On March 1,1977 the record reflects that Buffington terminated the services of Thurmond and Bain. In a letter to Thurmond, he directed Thurmond to turn his civil files over to attorney Pepos Dounson and in a letter to Bain instructed him to turn his criminal files over to attorney A1 Hernden. On May 18,1977, over two and a half months after the services of the petitioners were terminated, Buffington was indicted for the capital murder of his wife, who had been killed in March, 1976.

The record shows that attorney Charles Campion appeared with Buffington before the grand jury, and attorney Alan Brown appeared with him when he surrendered at the sheriff’s office and appeared with him at arraignment on May 26, 1977. Buffing-ton testified he did not pay Campion or Brown anything, but had paid A1 Hernden $1,000.00 and Campion and Brown were associates of Hernden. On June 3, 1977 Brown was allowed to withdraw as counsel. On June 7, 1977 attorney Sam Bashara, retained by Buffington, filed an application for writ of habeas corpus to set bail. From June 16 to June 21,1977 the court conducted a hearing on said application and denied bail. Buffington testified he paid Bashara $3,700.00 to represent him at such hearing, although Bashara testified it was $1,700.00. On July 15, 1977 the court conducted a pre-trial hearing on the State’s motion to appoint a psychiatrist and for Buffington to disclose the name of his retained counsel for the trial on the merits. Attorney Bashara was present, as well as attorney James R. Bass, who was handling civil matters for Buffington at the time. Later that day the court learned that Buffington had earlier filed an affidavit of indigency and on July 22, 1977, the court “designated” petitioner Bain to represent Buffington in a hearing on the State’s motion to contest the indi-gency affidavit.

As to his indigency, Buffington testified he had been in jail since May 18, 1977, had no income and that his relatives had no money to help him. ■ He related he had $8.00 to $10.00 in the jail property room, that he had three checking accounts with $1.00 to $3.00 in each account, that he had two bank accounts in the name of Jim’s Fence Co., Inc., one with $50.00 in it and another with $14.00. He acknowledged he had corporate stock in Jim’s Fence Co., but its market value was “nothing” as the business was no longer in operation. He stated he owned no motor vehicle or boat, but did have personal property consisting of watches, rings, tie clasp, lapel pins, etc., of the value of $500.00 to $600.00, that he owned no real estate except one and a half burial lots of the value of $1,500.00 to $2,000.00.

Buffington testified he had two outstanding judgments against him, one in the amount of $17,500.00 in favor of Ray Council, a former business partner, and one in the amount of $6,500.00 in favor of Frost National Bank. He related he had various debts at several stores, and that the trust account set up by attorney Bass was “in the hole” $400.00.

He admitted that on June 23,1976 he had received $139,000.00, but when asked what had happened to the money, he replied, “It was spent.” In addition to the money paid to the various attorneys, he stated some of the money was invested “in business,” but did not give any amount so invested. He did state that he had purchased an $80,-000.00 to $90,000.00 house, making a down payment of $23,000.00, and that he had also purchased $17,000.00 to $18,000.00 worth of furniture in the house. He stated, however, that the ownership of the house was transferred to his minor children, which transfer or sale was approved by the probate court, and that he had also transferred his interest in the furniture and other accessories in the house to the children.

Buffington related that he had given his girlfriend, Linda Morey, a $6,000.00 diamond ring in December, 1976, a $1,400.00 to $1,500.00 mink stole, and $1,100.00 1976 tax refund check to be used for a honeymoon. They were married the day Buffington was placed in jail, but the marriage was annulled and Morey retained the property she had received.

It was shown that after Buffington was jailed he hired attorney Bass to handle his civil affairs and that Bass had represented him in the annulment suit and certain other law suits.

Bass was paid $8,000.00 to $9,000.00, and Bass testified that he also acquired from' Buffington for legal services rendered a second lien note on the house Buffington owned at the time of his wife’s death for $2,400.00 at 7% interest payable at $50.00 per month and an unsecured promissory note of $1,650.00 of David Chasen payable to Buffington at $35.00 per month.

Attorneys Alan Brown and Pat Priest testified that $25,000.00 would be a reasonable fee for a capital murder case, while attorney Sam Bashara stated a “minimum level” fee would be $20,000.00.

At the conclusion of the hearing on July 29th the respondent found Buffington not to be indigent and not entitled to appointed counsel but nevertheless “designated” petitioners Bain and Thurmond to represent Buffington on the capital murder charge as they had been paid $44,000.00 and had been adequately compensated “in this case.”

On August 9,1977 a motion to vacate the order of July 29th was denied. On September 9, 1977 a hearing was conducted on a new motion to vacate the July 29th order, at the conclusion of which the motion was denied. However, the respondent judge noted he was “reoffering” to furnish a free investigator, free expert testimony, a free transcript of any hearing, and to appoint counsel on appeal, if there was a conviction.

Thereafter in October, the petitioners unsuccessfully sought relief from the Supreme Court of Texas, which has been earlier noted. On November 7,1977, when the capital murder case was called for trial, the petitioners were held in contempt by the respondent when they announced “not ready.” They were released from custody on bail pending a hearing before a disinterested judge. On November 22, 1977 the respondent ordered the petitioners purged of contempt, as they agreed to prepare the defense, although through their attorney they expressly did not waive the objections and exceptions to the earlier orders of the court.

The capital murder case was reset for February 6, 1978 and continued for several reasons and set again for May 15, 1978, prior to which time the petitioners brought this application for writ of habeas corpus, and was reset for a trial date in September, 1978 due to the surgery performed on petitioner Bain.

In reviewing the record, we find that the respondent judge was mistaken in finding that the petitioners had been retained and paid $44,000.00 “in this case.” The evidence shows that the petitioners received $39,-526.00 from Buffington, the bulk of which was for civil law work done, and that the petitioners had been paid nothing for the capital murder case. In fact, their services were terminated some two and a half months prior to indictment. Thus, we are not confronted with a situation where retained counsel has already received what the court considers an adequate fee, although not all agreed upon, and is refused permission to withdraw as counsel. What we are faced with is a rather unique situation where the trial court “designates” counsel, without being retained or appointed, to serve in a capital murder case because counsel was retained and compensated for performing other legal services for the defendant. We have not found any reported case approaching the factual situation here presented.

It has long been held in this State that a trial court may not force an accused to accept an attorney if he wishes to waive representation and defend himself. Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), and cases there cited. We are not here faced with a situation where an accused desires to represent himself, but if an accused is solvent, he should be given an opportunity to and be required to employ his own attorney or attorneys for the trial for capital murder. See and cf. Smith v. State, 513 S.W.2d 586 (Tex.Cr.App.1974). Under such circumstances, the trial court should not force “designated” counsel upon him. Of course, if in fact he is “too poor to employ counsel,” then counsel should be appointed and compensated. Articles 26.04 and 26.05, Y.A.C.C.P. See also Williams v. State, 461 S.W.2d 630 (Tex.Cr.App.1971); Ex parte King, 550 S.W.2d 691 (Tex.Cr.App.1977). It has been observed that there are no standards set out for the guidance of trial judges in determining the actual indi-gency of a defendant for the purposes of an appeal, and that each case must be decided upon its facts. Ex parte Combs, 545 S.W.2d 171 (Tex.Cr.App.1977); Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App.1976); Roberson v. State, 538 S.W.2d 788 (Tex.Cr.App.1976); Barber v. State, 542 S.W.2d 412 (Tex.Cr.App.1976). See also Simmons v. State, 511 S.W.2d 308 (Tex.Cr.App.1974). The trial court has the authority to conduct an evi-dentiary hearing at any time during the criminal proceedings to determine the indi-gency of the defendant if placed on notice of such issue. Foley v. State, 514 S.W.2d 449 (Tex.Cr.App.1974). In making the determination of indigency, the statutory wording of Article 26.04, supra, should be considered. An accused may be “too poor to employ counsel” to represent him on the charge pending against him and yet not be completely destitute. An accused may have some available funds, but not enough to secure counsel in view of the nature of the charge pending against him. See and cf. Ex parte Combs, supra.

The question of indigency when raised is to be determined at that time and not based on some prior period of time. See and cf. Conrad v. State, supra; Roberson v. State, supra.

While one may have little sympathy for an accused who has squandered his resources or has transferred his interest in property and then claims he is “too poor to employ counsel” to represent him on a serious criminal charge and asks for appointed counsel, this does not justify a trial court imposing upon attorneys, previously retained and compensated for other matters, the duty of representing an accused in a criminal case without appointment and compensation. The respondent judge was without authority to enter the order of July 29, 1977. It is hereby set aside, and the relief prayed for by the petitioners is granted. We need not therefore answer petitioners’ other contentions.

We trust that if the capital murder case has been transferred to another district court this order will be honored without the necessity of additional orders of this court.

It is so ordered.

      . An accused’s right to select his own counsel cannot be insisted upon or manipulated so as to obstruct orderly procedure in courts or to interfere with a fair administration of justice. Estrada v. State, 406 S.W.2d 448 (Tex.Cr.App. 1966); Robinson v. State, 458 S.W.2d 75 (Tex. Cr.App.1970); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App. 1976).


author: PHILLIPS, Judge.

text:
    Ex parte Benito Salazar BARRON.
    No. 58599.
    Court of Criminal Appeals of Texas, Panel No. 2.
    July 19, 1978.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, Vernon’s Ann.C.C.P.

On March 26,1969, appellant waived trial by jury and entered a plea of guilty before the court to indictment No. C-69-149-LI which charged him with the offense of murder with malice aforethought. On the same day he entered a plea of guilty before the court to the offense of robbery by assault, a lesser included offense, alleged in the indictment in Cause No. C-69-1486-LI. Punishment in each case was assessed at life imprisonment.

On May 14,1978, appellant filed his application for writ of habeas corpus in the trial court in which he alleged that his conviction for robbery by assault in Cause No. C-69-1486-LI violated the carving doctrine, since both the murder and robbery convictions arose out of the same transaction. After reviewing all the records in both causes, the trial judge found that the murder and robbery convictions were the result of “a continuous and uninterrupted assaultive transaction directed at a single victim in the same place at the same time.” The trial court recommended that the judgment and sentence in the robbery by assault case be voided and set aside and the indictment in that cause dismissed. The findings and recommendation were approved by attorneys for petitioner and the State.

We accept the findings, conclusions, and recommendations of the trial court, which are not contested by the State. Consequently, it is ordered that the judgment and sentence convicting appellant of robbery by assault in Cause No. C-69-1486-LI is set aside and declared to be void, and the indictment in that cause is ordered dismissed. See Ex parte Olson, 560 S.W.2d 688 (Tex.Cr.App.1978), and cases there cited. Nothing herein affects the validity of appellant’s conviction for murder with malice aforethought in Cause No. C-69-149-LI.

It is so ordered.


author: ROBERTS, Judge. ONION, Presiding Judge,

text:
    Ex parte Thomas A. CURTIS.
    No. 59108.
    Court of Criminal Appeals of Texas, En Banc.
    July 19, 1978.
    Selden B. Hale, Walter P. Wolfram and Russell C. Busby, Amarillo, David B. Sheppard, Austin, for Thomas A. Curtis.
    Wayne P. Sturdivant and Marvin W. Jones, Amarillo, for Judge Poff.
   OPINION

ROBERTS, Judge.

On July 11,1978, relator was found guilty of criminal contempt of the 47th District Court of Potter County and sentenced to serve three days in jail. He then filed this application for a writ of habeas corpus in this Court. The writ is properly before us as an original writ of habeas corpus, and we will entertain it as such.

Relator is the district attorney for the 47th Judicial District. On March 9,1978, he was representing the State in a pre-trial hearing in the 47th District Court. The principal purpose of the hearing was to consider defensive motions to quash various portions of the indictments in two cases pending in that court — cause numbers 18,-219-A and 18,282-A, styled The State of Texas versus Robert Hicks.

At the beginning of the hearing the trial court announced that he was consolidating the two cases under the indictment numbered 18,219-A. Then, after determining that the defendant was satisfied with the State’s response to the defendant’s motion for discovery, the court proceeded to consider the motions to quash.

Counsel for the defense first urged that the court should quash counts 1, 8, and 9, as well as paragraph 8 of count 2, contained in the indictment for cause number 18,282-A. After a discussion of these parts of the indictment and the law relating to them, this relator, speaking on behalf of the State, agreed to waive counts 8 and 9. The court then indicated that he would not quash count 1 or paragraph 8 of count 2.

Counsel for the defendant then argued the part of his motion to quash which contended that paragraphs 1, 2, 3, 4, and 5 of count 2, as well as all of count 14 of the indictment, were barred by limitations. Relator agreed that this contention was meritorious as to the five mentioned paragraphs of count 2, but he disputed the contention as to count 14 because, according to relator, it was a matter of evidence rather than limitations. However, the court ruled that count 14 should be quashed. Relator’s entire response was, “Fine. Fine.”

Next, counsel for the defendant argued that count 13 of the indictment was not sufficiently specific. Relator disputed counsel’s contention, and argued that this count of the indictment was more specific than the law required. The trial court quashed count 13. As with the earlier contentions, the trial judge participated in this discussion by asking questions of counsel for both sides and by expressing the reasons for his agreement or disagreement with the various positions taken by counsel.

Counsel for defendant then proceeded to his last contention — that count 15 of the indictment was not sufficiently specific. The court then asked relator if he wished to be heard on this contention. Relator responded that he did not believe “it would do any good for us to be heard. With all due respect.” The trial court then stated that he had ruled against relator only once during the hearing and pointed out to relator that relator had indicted the defendant after the statute of limitations had run. Relator replied that the grand jury indicted the defendant. The court then told relator that he did not want a speech from relator. After a further discussion with defense counsel, the court announced that he would not quash count 15.

Next, defense counsel urged his Motion for the State to Elect, which the court denied. Relator responded that the State had “been left with very little to elect with.” Defense counsel then stated that he had no further motions for the court to consider at that time.

At this point, the court asked relator to bring up a request relator had made earlier in the hearing; the request concerned the voir dire examination. Defense counsel suggested that the issue could be discussed in chambers. To this relator replied that he did not want to do anything in chambers with this court. The trial court agreed with relator’s sentiments.

Relator then stated that he wanted to avoid the possibility that some remark might contaminate the jury panel. The court agreed that the idea was a good one, but expressed doubt that it could be effectively done. The following exchange then took place (the underlined comments of relator constitute the basis for his being found guilty of contempt):

“MR. CURTIS: Your Honor, you won’t listen to me_
“THE COURT: I’m listening now.
“MR. CURTIS: I don’t know how.
“THE COURT: Curtis, I ruled against you one time and you act like a spoiled child. Now let’s get over that, okay? All right.
“MR. CURTIS: Will you please call me with the respect that is due any counsel that appears in your court and not Curtis? I think that shows disrespect for counsel. I think your remark_
“THE COURT: I thought it showed I was trying to get along with you, but like I said, you’re acting like a spoiled child. But, Mr. Curtis, I agree with you_
“MR. CURTIS: Your Honor, I have a right to reply to you_
“THE COURT: If we’ve got ___
“MR. CURTIS: I think you’re acting like a biased Judge trying to help this Defendant beat a darn good case. And that is given in response.
“THE COURT: And you’re making a speech right now and we don’t want any of your speeches to the press.
“MR. CURTIS: It was in response, Your Honor. The record will reflect it.
“THE COURT: Now, I thought you were going to tell me about picking a jury. And_you don’t have any further comments on that.
“MR. CURTIS: I think you ought to make some rules that would protect them from contamination by unfortunate remarks by the Court or anybody else and arrange to do it individually.
“THE COURT: Oh, I’m not going to Voir Dire individually if that’s what you’re_
“MR. CURTIS: In some portion individually. Because I really fear in light of what the record will reflect this morning, that the Court itself might contaminate the whole jury panel by some remark he might make.
“THE COURT: Do not want to. And I’ve been trying to get along with you for two years, Tom, honest. And it really hurts me that you’re upset now. Because as I understood those rulings, you agreed to all of them but one. And it_
“MR. CURTIS: Well, you misunderstood, Your Honor, and if you’ll look back over the record you’ll see.
“THE COURT: It’s just ... it is just really sad.
“MR. CURTIS: I agree, it’s very sad.
“THE COURT: Okay. Well, why don’t we try to get along then.
“MR. CURTIS: Your Honor ...
“THE COURT: I referred to you as Tom. I’m sorry. Mr. Curtis. But I would rather refer to you as Tom, honest. And all because I rule against you, that’s no reason for you to be upset and, you know_anyway, what do you want_
“MR. CURTIS: Merely because I feel that you are acting_
“THE COURT: Tom, come on_
“MR. CURTIS: _in favor of this Defendant in derogation of the State’s case illegally and improperly, don’t be upset_
“THE COURT: Tom, I think it’s time somebody protected somebody’s rights around here. You indicted that — a Grand Jury indicted that man on five_
“MR. CURTIS: I notice that is the second_that is the reason for my concern about contamination of the jury panel.
“THE COURT: That’s fine. And you indicted that man on five counts that you now concede were barred by the statute of limitations. You indicted him on two other counts that you have now waived and you complain with me about the one count that I disagree with you about. Fine.
“We’re through, gentlemen.
“MR. KOLIUS: Thank you, Your Hon- or.
“THE COURT: Okay. 9:00 o’clock Monday.”

This concluded the hearing.

Subsequently, the court entered an order finding that relator had made the two contemptuous remarks underlined above. The order also adjudged that relator was guilty of criminal contempt and stated that reía-. tor’s punishment was ten days in the Potter County jail.

On July 11, 1978, a hearing was held to determine whether relator was guilty or innocent of the contempt charge. Trial was before the Honorable David Wesley Gulley, presiding judge of the 222nd District Court, who was sitting by assignment as presiding judge of the 47th District Court. Evidence was heard, and the court found relator guilty of criminal contempt as a result of his having made the two allegedly contemptuous remarks. The court assessed punishment at three days in jail.

We turn first to the issue of whether the words uttered were contemptuous, for if they were not, the relator is entitled to the relief he seeks and no other issues need be discussed. See Ex Parte Vogler, 110 Tex. Cr.R. 579, 582, 9 S.W.2d 733, 734 (1928).

In the case of In Re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972), the judge forced the accused to defend himself pro se because of his lawyer’s absence. The supposedly contemptuous remarks were made in closing argument by the defendant, who said that the judge was biased and had prejudged the case. He also argued that he — the defendant — was a political prisoner.

Relying principally on Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965), the Court reversed, saying that the remarks did not constitute criminal contempt, in the absence of a showing of disruptive or boisterous behavior.

In Holt, the allegedly contemptuous remarks were contained in a change of venue motion. In the motion, the judge was accused of acting as police officer, chief state’s witness, adverse witness against the defense, grand jury, chief prosecutor, and judge — all in a prior contempt proceeding pending before the judge. The allegedly contemptuous motion also accused the judge of intimidating and harassing the pri- or contemnor’s lawyer. The Supreme Court reversed, holding that the charges of bias were relevant to a motion for change of venue in a contempt case. The Court also emphasized that the words were in plain English, inoffensive, and “appropriate” to charge bias.

The allegedly contemptuous language in this case is similar to that in Little and Holt. For purposes of comparison, we repeat the relator’s remarks:

“Merely because I feel that you are acting in favor of this Defendant in derogation of the State’s case illegally and improperly;” and
“I think you’re acting like a biased Judge trying to help this Defendant beat a darn good case.”

As in Little, there is no indication that relator’s statements were made in a boisterous tone or that they disrupted the proceedings in any way. Although we cannot and do not endorse the relator’s remarks — or the acrimonious dispute of which they were a part — we cannot agree that they were any more contemptuous than the remarks made in Little and Holt. Furthermore, these remarks were relevant to the issue (of jury contamination) which was being discussed by the relator and the respondent court. See Holt, supra, at 136-137, 85 S.Ct. 1375.

In his brief filed in this Court the respondent trial judge has argued that the holding in Little is distinguishable from the case before us. Respondent contends that the Little Court gave greater leeway to the language of that alleged contemnor because he was forced to go to trial without the assistance of counsel.

The language in the Little opinion refutes respondent’s contention. The Court specifically held that Little, in defending himself pro se, was “clearly entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client’s cause. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962).” 404 U.S., at 555, 92 S.Ct., at 660 (emphasis added). See also Faretta v. California, 422 U.S. 806, 835, n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The McConnell opinion contains language which is pertinent to the case before us:

“ . . . The arguments of a lawyer in presenting his client’s case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here.
“While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom, or even from conduct so near to the court as actually to obstruct justice, it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients’ cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice. To preserve the kind of trials that our system envisages, Congress has limited the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice, and we think that that power did not extend to this case.” 370 U.S., at 236, 82 S.Ct., at 1292.

Finally, we call to the attention of the respondent and the relator the language of Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958), quoted with approval in Little, supra, 404 U.S., at 555,92 S.Ct., at 660: “Trial courts . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.”

Of course, this admonition applies to lawyers and judges alike. The parties would be wise to remember that the principal function of the criminal justice system is not that the self-esteem of lawyers and judges be preserved; it is that all individuals be tried and sentenced in accordance with law. See Green v. United States, 365 U.S. 301, 309, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (Black, J., dissenting); Duncan v. Magette, 25 Tex. 245, 253-254 (1860).

The original writ of habeas corpus is granted. The charge against relator is ordered dismissed.

DOUGLAS and W. C. DAVIS, JJ., not participating.

ONION, Presiding Judge,

concurring.

I reluctantly concur in the result reached by the majority opinion. I would, however, point out that I do not consider relator’s conduct and statements to be ethical or proper. Relator’s actions were undignified and discourteous conduct which was demeaning to the tribunal before whom he was appearing as an attorney and officer of the court. See DR 7-106(C)(6), Code of Professional Responsibility — Title 14 App.; Art. 12, § 8, p. 353, Vol. 1A, V.A.C.S.

I concur.

ODOM and TOM G. DAVIS, JJ., join in this concurrence as well as in the majority opinion.

      . We have granted relator’s request for a bond pending the outcome of this application.

      . Later in the hearing, defense counsel stated that he had no objections to the indictment in 18,219-A; all of his contentions centered on the indictment in 18,282-A.

      . Relator also stated that he would not have waived counts 8 and 9 if he had known how the court would rule on the defendant’s subsequent contentions.