author: DOUGLAS, Judge.

text:
    Adam S. NACOL, Appellant, v. The STATE of Texas, Appellee.
    No. 58244.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 14, 1979.
    Rehearing En Banc Denied Dec. 19, 1979.

      Joe B. Goodwin, Beaumont, Gene Richie, Wichita Falls, for appellant.
    Timothy D. Eyssen, Dist. Atty., Howard L. Martin, Sp. Prosecutor, Wichita Falls, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Appellant was convicted of theft over $200. Punishment was assessed by the jury at two years.

Nacol was indicted for theft of thirty-six birthstone rings taken from a jewelry store in Waurika, Oklahoma. Paul McLain, the store owner, testified that he went to Na-col’s store in Burkburnett, Texas, where he purchased two birthstone rings he believed to have been stolen from his store. He then went to the Wichita County district attorney’s office, turned over the two rings and made his complaint. A body transmitter was concealed under his clothing and he was taken to Nacol’s main jewelry store in Wichita Falls where he confronted Nacol and accused him of theft. According to McLain, Nacol reacted very nervously and offered McLain $2500 if McLain would not file suit.

A search warrant was then issued and McLain and the police proceeded to the Burkburnett store. McLain identified numerous rings in the store as his. He later testified he was able to identify the rings because of the trademark (a circle with an “S” in the center and a sunburst with an “S” in the center) and because the rings seized matched the style and color of the rings stolen from his store. Everett New-berry, a former salesman for the then Schwartz Jewelry Company, testified that he was the sales representative for Schwartz in Texas and that he had never sold any birthstone rings to Nacol.

Clyde Burns testified that he and Woody Fanchier committed the burglary on McLain’s store on February 20, 1975, and stole the birthstone rings. Upon their return to Wichita Falls, Burns called James Lebus to help dispose of the stolen merchandise. The three men had been working together for some eight or nine months to dispose of property stolen in numerous burglaries. Lebus was in charge of delivering the property to various fences and of pinpointing likely locations for future burglaries. Burns testified that on several occasions he heard Lebus telephone Nacol about disposing of stolen property. He also identified the rings stolen from McLain’s store.

Lebus, the “finger” man, testified about his role in the enterprise. He stated that he asked Nacol to “fence” diamonds and other jewelry stolen from various Wichita Falls’ residents. This relationship lasted several months. He then testified, when asked about the disposition of McLain’s birthstone rings, that he assumed that he received the rings and sold them to Nacol. Though he did not tell Nacol that the property was stolen, he stated that, because the arrangement had gone on for so long, it was unnecessary to tell Nacol the status of the property. He identified the birthstone rings as being of the same type stolen from McLain’s store.

Appellant challenges the appointment of the Honorable Howard Martin as Special Prosecutor in this case, first because Martin was not required to disclose the names of the contributors to the fund used to employ him and second, because there was no order limiting his participation and conduct in the case. It was undisputed that the Honorable Timothy Eyssen, the elected district attorney of Wichita County, was present and able to conduct the State’s case.

In Loshe v. State, 160 Tex.Cr.R. 561, 272 S.W.2d 517 (1954), this Court held that the trial court did not abuse its discretion in not limiting thé role of or in not forbidding the appearance of a volunteer special prosecutor. There must be a showing that the rights of the accused were prejudiced or that the appearance of a special prosecutor led the jury to believe that sentiment was so aroused against the accused as to require a special prosecutor. Any evidence of widespread hostility to appellant was brought out on cross-examination of the State’s reputation witnesses who testified that they contributed to that fund. Appellant cannot now complain on appeal of that evidence. Bueno v. State, 409 S.W.2d 421 (Tex.Cr.App.1966). Further, appellant’s change of venue motion was granted because of the presence in the community of those contributors.

In Emerson v. State, 54 Tex.Cr.R. 628, 114 S.W. 834 (1908), this Court discussed the prejudicial impact on a defendant’s rights when the appointed special prosecutor discussed the case with the defendant prior to his appointment. Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661 (1958), held that a special prosecutor was not disqualified where there was no showing that he talked to the defendant or his witnesses prior to the appointment. Appellant has made no showing of harm nor has he shown the relevance of the names of the contributors. These contentions are overruled.

Appellant also complains that the trial court abused its discretion in not requiring the production of the grand jury testimony of Burns, Lebus and Fanchier. Though he was given the statements of these witnesses, he contends that these statements contain nothing about the burglary in question and that he was not given the grand jury testimony, and because of this, he was denied the right of effective cross-examination and impeachment with inconsistent statements.

Nacol has not shown that any grand jury testimony of the three witnesses was available. Defense counsel requested the testimony, as well as any other statements made by the witnesses, after each of the witnesses testified. Each time, the State examined its records of the case and informed the court that no grand jury testimony was available. Only in the case of Fanchier was the State uncertain about the existence of transcribed jury testimony. Nacol never established the existence of that transcription. No harm has been shown. Appellant’s contention is overruled.

Next he contends that the court erred in admitting a tape recording of a conversation between Nacol and McLain; first, because the State failed to lay a proper predicate for the tape’s admission and, secondly, because the State failed to show the extent of the “cleaning up” of the tape by the F.B.I. crime laboratory.

Officer Tommy Johnson of the Department of Public Safety testified that he outfitted McLain with the body transmitter and that he monitored the conversation. Johnson stated that the microphone was very sensitive and capable of monitoring conversations at a distance and that he had been trained in the device’s operation. He related that he listened to the conversation as it was being taped, that there were no changes, additions, or deletions to the tape upon its return from the F.B.I. lab and that it was in the same condition as when the conversation was recorded. He identified the voices as those of McLain and Nacol. This testimony meets the requirements of Edwards v. State, 551 S.W.2d 731 (Tex.Cr.App.1977). The appellant has made no showing of any alteration to the tape other than the removal of background noise. No harm is shown. These contentions are overruled.

Nacol urges that the trial court erred in admitting the tape recording because the prosecutor failed to comply with the trial court’s order to allow defense counsel to inspect the tape. Five days before the trial, the prosecutor-made available for inspection by counsel a copy of the original tape recording. This copy proved to be unintelligible. Two days into the trial, the prosecution attempted to introduce the original tape recording played on a different tape recorder. This tape was intelligible. It is undisputed that the district attorney knew, the night before its introduction, that the second tape was “clean.”

There has been no showing of harm. There is no transcript of the tape recording in the record nor has a copy of that tape been sent to this Court. Appellant filed no motion for continuance upon learning of the new tape. There is no showing of any bad faith on the part of the prosecution. To the contrary, the record shows that the prosecutor did not discover the discrepancy until the night before the tape's introduction into evidence. The focus of defense counsel’s questions on the tape’s admissibility during the voir dire examination and the hearing on the motion for new trial was directed to the possibility of an altered tape. The evidence shows that the tape introduced was the original tape recording unaltered by the F.B.I. lab. Further, defense counsel made no request to have the tape analyzed by an expert to determine the existence of any alterations during the trial or in a motion for new trial. Appellant’s contention is overruled. Appleman v. State, 531 S.W.2d 806 (Tex.Cr.App.1976).

Appellant argues that the trial court erred in refusing to submit two requested instructions in his jury charge. The requested instructions read as follows:

“I.
“You are instructed that you cannot convict the defendant unless you find and believe from the evidence, if any, beyond a reasonable doubt that the 37 birthstone rings offered in evidence by the prosecution are the same birthstone rings taken from Paul McLain on February 21, 1975, as alleged in the indictment.
“II.
“There has been introduced in evidence before you 37 birthstone rings alleged to have been taken from Paul McLain on February 21, 1975; you are instructed that you cannot consider these exhibits for any purpose whatsoever unless you find and believe from the evidence beyond a reasonable doubt that such rings are the identical rings so taken.”

The charge submitted to the jury read: “. . .if you believe from the evi-

dence beyond a reasonable doubt that the defendant, Adam S. Nacol, on or about February 21, 1975, in Wichita County, Texas, either by his own conduct or acting with Clyde T. Burns, Alton Woodruff Fanchier, Jr. or James F. Lebus, did intentionally and knowingly obtain and exercise control over personal property, to wit:
“37 ladies birthstone rings, and all of said property being of the aggregate value of more than $¿¡00.00 and less than $10,000
the said Adam S. Nacol knowing that said property was stolen, and with intent to deprive the owner, Paul McLain, of said property and without the effective consent of Paul McLain, you will find the defendant guilty as charged in the indictment.”

All the terms were defined in the instructions according to their penal code definitions, V.T.C.A., Penal Code, Section 1.07.

The charge given requires the jury to find that the rings introduced into evidence were the same rings taken from McLain’s store. Therefore, the charge given is substantially the same as the charge requested. No harm is shown. Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Estrada v. State, 479 S.W.2d 316 (Tex.Cr.App.1972).

Appellant submits that the court erred when it communicated with the jury outside the presence of the appellant and while the jury was not present in open court, in violation of Article 36.27, V.A.C. C.P.

The jury sent a note to the judge which read:

“We want to know how many days you get at T.D. of Corrections for the days served.”

and

“We want to know how much time would be assessed for probation after he (if) gets out of prison on a two year sentence.
/s/ Dana H. MeHaffev Foreman”

Instead of calling the jury back into court in the presence of Nacol, the judge sent the note back to the jury with the notation:

“You are only to consider what is contained in the charge.
/s/ John Bradshaw Judge Presiding”

In Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974), we held that a communication between the judge and the jury, although not in compliance with Article 36.27, supra, is not reversible error unless it amounts to an additional instruction by the court upon the law or some phase of the case. An almost identical exchange was made in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967). No reversible error is shown.

Appellant next complains of jury misconduct when the jury considered the parole laws. Jurors Terry McCullough and G. W. Farris testified that one of the jurors brought up the question of good time credit claiming that a prison inmate could get three days good time credit for every one day served. After the note was sent to the judge and the instruction returned ordering them to consider only the charge, there was no more discussion of that issue.

In view of the trial court’s instruction to consider only what was in the charge, while the charge on punishment specifically forbade discussion of any possible action to be taken by the Board of Pardons and Paroles, and in view of the fact that no discussion of good time credit was had after the note was returned, there has been no showing of a detriment to appellant as would deprive him of a fair and impartial trial. Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975).

He also complains of jury misconduct. Someone stated during deliberations that Nacol did not take the stand and testify.

Juror Farris testified:

“Q. I want to ask you a question or two about some parts of your deliberation. Do you recall anything having been said in the jury room about the fact that Mr. Nacol did not testify?
“A. It was mentioned, but I don’t remember who mentioned it, but it was mentioned.
“Q. Was it mentioned once or more than once?
“A. Just once, I believe.
“Q. You don’t know which of the jurors made the comment?
“A. No, I sure don’t.”

Juror Zola Peeks testified:

“Q. I want to ask you a question or two, Mrs. Peeks, about some matters that occurred during the jury deliberations. Do you recall any comment or any conversation about the defendant’s failure to testify?
“A. I think it was brought up, but who said it, I don’t know.
“Q. Was it brought up once or more than once?
“A. Once as far as I can remember.
“Q. You heard one member of the jury say they wondered why he didn’t testify or something to that effect?
“A. Yes.”

Juror McCullough testified similarly.

In Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), we held that' it is within the trial court’s discretion to grant a new trial for jury misconduct. A denial of the motion will not be disturbed if the statements were made casually or incidentally. In Broussard v. State, 505 S.W.2d 282 (Tex.Cr.App.1974), we refused to reverse the conviction when there was no discussion or consideration by the jurors of the defendant’s failure to testify beyond its mere mention. No reversible error has been shown.

Appellant argues that there was insufficient evidence to show that the thirty-seven rings introduced into evidence were the same rings stolen from McLain’s store and that the evidence was insufficient to show that Nacol knew the rings were stolen when he received them. We disagree. Newberry testified that he never sold any Schwartz birthstone rings to Na-col. All three accomplices testified that the rings introduced were of the same type as the stolen rings. This evidence was corroborated by McLain, the owner, who identified the rings because of the trademark on the inside of the band and because of the similarity of the shape, size and color of the rings introduced to the rings stolen. As to the lack of Nacol’s knowledge that the rings were stolen, Lebus testified that the fencing arrangement had gone on for so long it was no longer necessary to tell Nacol every time that the goods were stolen property. Taking the evidence in a light most favorable to the verdict, we find the evidence sufficient to sustain the conviction.

Lastly, Nacol complains of the failure of the trial court to give a charge on circumstantial evidence. In view of the direct testimony of an accomplice witness that Nacol knew the rings were stolen when he received them and that the rings were obtained from those witnesses, the court did not err in refusing to charge on the law of circumstantial evidence. Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974).

The record contains no reversible error. The judgment is affirmed.

      . These trademarks indicated that the manufacturer was Schwartz and Company of Buffalo, New York. Each trademark is registered with the Jeweler Board of Trade.


source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Salvador BETANCOURT, Appellant, v. The STATE of Texas, Appellee.
    No. 58457.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 21, 1979.
    Rehearing En Banc Denied Dec. 19, 1979.

      Cliff Preslar, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Miguel J. Cervantes, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This appeal follows conviction for the offense of possession of heroin. Appellant, having been tried on an indictment enhanced pursuant to the provisions of V.T. C.A. Penal Code, § 12.42(d), was sentenced as an habitual offender.

In his sole ground of error, appellant contends that the trial court erred in sentencing him pursuant to Section 12.42(d), supra, in that the State presented evidence of only one prior felony conviction. We overrule this contention and, accordingly, affirm the judgment below.

The thrust of appellant’s contention herein is that one of the two prior felony convictions utilized for enhancement purposes was for the offense of “possession and sale of a narcotic drug” and that the prison packet evidencing said conviction did not identify it as a felony offense. Consequently, reasons appellant, the State did not successfully meet its burden of showing that the offense in question was a felony offense as alleged in one of the two enhancement paragraphs in the indictment.

The record reflects that appellant was convicted of the offense in question on September 15, 1941 and his punishment was assessed at confinement in the Texas Department of Corrections for a term of two years. Though the prison packet does not denominate this offense as a felony, V.A. T.C. Penal Code, § 12.41(1) provides in pertinent part:

“For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows:
(1) ‘felony of the third degree’ if confinement in a penitentiary is affixed to the offense as a possible punishment;”

As prescribed by § 12.41(1), then, it appears that the 1941 conviction was properly alleged as a felony for enhancement purposes since prosecution for the crime preceded the current penal code and penitentiary time was assessed as punishment. See Moreno v. State, 541 S.W.2d 170, 174 (Tex.Cr.App.1976).

However, appellant points out that the State did not introduce the text of the statute basing the 1941 conviction and contends that the trial judge did not have any evidence it was a former felony nor take judicial knowledge of § 12.41, supra, so that there is no evidence that the trial court based its decision finding both enhancement paragraphs true on this statute. This contention is without merit. That the trial court did not take judicial notice of this statute is of no moment as it could have upon proper request. It is axiomatic that Texas courts can in fact judicially notice any and all laws that were formally in effect at a given point in time. Moreno v. State, supra. 1 McCormick and Ray, Texas Law of Evidence, 2d ed., § 173, p. 187 at note 70 and cases there cited. In 1941, the crime for which appellant was convicted was proscribed by Article 725b, § 2(a), Penal Code, 1925, and the applicable penalty for such offense was outlined in Article 725b, § 23(1), supra, as not less than two nor more than life imprisonment in the State penitentiary. The then applicable statute coupled with the prison packet sufficiently proved the 1941 conviction for possession and sale of a narcotic drug was a felony conviction for enhancement purposes pursuant to Section 12.42(d), supra. Moreno v. State, supra; see also Passmore v. State, 544 S.W.2d 399, 402 (Tex.Cr.App.1977).

Appellant advances the correlative contention that Section 12.41(1), supra, is unconstitutional in that it constitutes an ex post facto law. The thrust of this contention is that this statute has the effect of changing the punishment and inflicting a greater punishment than the law annexed to the crime when it was committed. We do not agree. It is true that the classic definition of an ex post facto law is one that aggravates a crime or makes it greater than when it was committed or similarly, changes and inflicts greater punishment than that which was proscribed when the crime was committed, Hill v. State, 146 Tex.Cr.R. 333, 171 S.W.2d 880, 883 (1943); yet we do not perceive how § 12.41(1), supra, comes within that definition. This section merely attempts to classify, for purposes of enhancement of punishment under the ambit of § 12.42, supra, those convic-. tions obtained either under our former penal code or under those penal codes of other jurisdictions. The line of demarcation is if punishment is assessed by confinement in a penitentiary then, for purposes of this sub-chapter, the offense shall be considered a third degree felony. See also V.T.C.A. Penal Code, § 1.07(14) (defining a felony offense). Thus, standing alone § 12.41 is .only definitional, without any operative effect unless coupled with some subsection of § 12.42 for penalty purposes. When given that effect neither constitutes an unconstitutional ex post facto application. Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972); Shaw v. State, 529 S.W.2d 75 (Tex.Cr.App.1975).

The sole ground of error is overruled and the judgment is affirmed.

      . AH emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . The packet adequately reflects that appellant was actually incarcerated in the Texas Department of Corrections.

      . Since the 1941 indictment is not included in the pen packet, we do not know how the separate offenses of “possession and sale” were alleged; the phraseology of the judgment and sentence must be regarded as a sort of shorthand rendition of the allegations in the indictment. We are not called upon to nor could we determine from this record whether the indictment is fatally defective for failing to designate the kind or character of the “narcotic drug,” as required by, e. g., Horton v. State, 123 Tex. Cr.R. 237, 58 S.W.2d 833 (1933) and Baker v. State, 123 Tex.Cr.R. 209, 58 S.W.2d 534 (1933).

      . Appellant’s contention that an accused who has been sentenced to a year in the “penitentiary” for a federal misdemeanor could then have that misdemeanor conviction utilized as a prior felony conviction for purposes of enhancement on the strength of Section 12.41(1) need not be decided for the record does not raise the issue in that he is not similarly situated.


author: DALLY, Judge.

text:
    Larry Edwin SCHAFFER, Appellant, v. The STATE of Texas, Appellee.
    No. 57574.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 5, 1979.
    Jack W. Beech, Fort Worth, for appellant.
    Charles F. Campbell, Jr., Dist. Atty., Hillsboro, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for attempted aggravated sexual abuse of a child. The punishment, enhanced by proof of a prior felony conviction, was assessed at imprisonment for fifty years.

This appeal was originally abated so that the trial court could enter a judicial determination regarding appellant’s competency to stand trial pursuant to Art. 46.02, Sec. 5(g), V.A.C.C.P. Schaffer v. State, 583 S.W.2d 627 (Tex.Cr.App.1979). That determination has now been made and placed in the record. The appeal is reinstated; appellant’s first ground of error is overruled. In other grounds of error, appellant contends that the trial court erred in refusing to allow appellant to present an insanity defense.

The procedural background of this case is explained in an earlier opinion in this case, see Schaffer v. State, 583 S.W.2d at 628, and needs no repetition here. The first trial of appellant ended in a mistrial on April 28, 1977. Appellant made no effort to present an insanity defense at that aborted proceeding. It is uncontroverted that appellant’s counsel, on May 12, 1977, received a letter from the trial court, dated May 9, informing him that the case was set for retrial on May 16,1977. On May 16, appellant filed a motion for leave to file notice that defendant would present evidence of insanity which asserted that appellant did not have adequate time to file a notice prior to that date. Appellant filed his notice of intention to present evidence on insanity with the court and the prosecuting attorney on May 16. That same day, the trial court postponed trial until May 18, for other reasons, and held a hearing on the motion for leave to file. The trial court ruled that appellant had failed to comply with Art. 46.03, Sec. 2, V.A.C.C.P., and that no good cause for this noncompliance had been shown. The trial court ordered appellant not to raise the insanity defense at trial and the defense was not raised, but evidence for the bill of exceptions was offered.

The letter from the trial court which informed appellant of the trial date setting is not in the record; however, appellant filed an affidavit to substantiate his allegations about the timing of these events. During the May 16 pretrial hearing on this matter appellant’s recitation of this factual background was not disputed and, after listening to the arguments from both sides, the trial judge stated:

“The only question in my mind is as to the effect of setting the case twice. He didn’t comply with it the first time without a doubt. As to whether or not he’s entitled to ten days notice on a second setting, which he has not had time to do, let’s go to the chambers and see if we can find any cases . . . .” (Emphasis added.)

With this statement, the record sufficiently reflects that notice of the setting for the second trial was issued less than ten days prior to the date of that trial.

Art. 46.03, Sec. 2, V.A.C.C.P., in pertinent part, reads:

“Sec. 2. (a) A defendant planning to offer evidence of the insanity defense shall file a notice of his intention to offer such evidence with the court and prosecuting attorney:
“(1) at least 10 days prior to the date the case is set for trial; .
“(b) Unless notice is timely filed pursuant to Subsection (a) of this section, evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to give notice.”

Appellant failed to comply with the ten-day notice requirement. Where notice is not timely filed, the trial court generally has the discretion to decide whether the good cause is present. There are no cases interpreting the meaning of “good cause” under this statute. We hold, however, that there is good cause for an untimely filing as a matter of law where the defendant has not been given at least ten days notice of the date of trial, even if it is a subsequent setting.

The defendant cannot know when he will be going to trial until he receives some notification from the trial court. In this case, appellant could have filed a notice of his intention to present insanity evidence on the day that he was notified of the trial date and the filing would still have been untimely. If the trial court does not give ten days advance notice of the trial date, the trial court has precluded the defendant from having a reasonable chance to comply with the statute.

The State argues that from the time of his indictment on April 1, 1977, appellant had ample opportunity to file a notice of his intention to present evidence of insanity. We disagree. That appellant did not present an insanity defense at the first trial did not foreclose his raising such a defense at the second trial. The first trial ended on April 28. The declaration of a mistrial did not, standing alone, place appellant on notice that a second trial was imminent. The mistrial thus did not place appellant under a legal obligation to immediately begin filing motions to meet statutory deadlines applicable to a retrial of the case. Appellant was placed on notice about the second trial when the trial court notified him of the date of the trial setting. This notification came less than ten days before trial; appellant had good, cause for failing to comply with the statute. If the State was not prepared to meet an insanity defense, it could have requested appropriate relief from the trial court.

Appellant was not allowed to present an insanity defense before the jury. This error is not reversible unless appellant’s evidence would have properly raised the insanity issue. The trial court agreed that appellant’s bill of exceptions on this issue would be the psychiatric testimony presented by appellant in the punishment phase before the court. Appellant called Dr. Blaine McLaughlin, whose qualifications in the field of psychiatry were stipulated to by the State. Dr. McLaughlin testified that appellant had a schizophrenic personality, a mental illness which gave appellant delusions and a compulsion to “act out” these delusions. Dr. McLaughlin testified that, although he first interviewed appellant in May, 1976, about six weeks after the offense, the appellant’s history had shown a continuing pattern of this delusional behavior for about ten years. He further testified that appellant had been in and out of psychiatric treatment situations, including several in-patient programs, throughout this period. Dr. McLaughlin and Randy Godsey, a. staff psychologist at the Rusk State Hospital, indicated that a manifestation of this illness was indecent exposure, the conduct which was the subject of appellant’s prior felony conviction. Appellant’s counsel specifically questioned Dr. McLaughlin on the effect this mental illness would have on appellant’s ability to conform to the law.

“Q. And as a result of that mental disease did you form any opinion as to whether [Appellant] could conform his conduct to the requirements of the law he allegedly violated, which is sexual abuse of a child?
“A. Yes, sir. I found that he’s mentally ill and that he cannot manage to live up to the reality — reality codes of behavior, which he understands intellectually, but cannot conform his behavior to them.
“Q. Is it your testimony he’s incapable of conforming his conduct to the requirements of the law?
“A. Yes, sir.
“Q. Now, is his mental disease manifested in any ways other than the criminal conduct which he has shown in this case?
“A. Yes. He has other acts . . . .”

V.T.C.A. Penal Code, Sec. 8.01, defines the insanity defense as follows:

“(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
“(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal-or otherwise anti-social conduct.”

The State argues that the evidence did not show that appellant was insane, under the statutory definition, at the time of the offense. The evidence offered by appellant indicated that the mental illness and its accompanying delusional compulsions had continuously characterized appellant’s behavior for about ten years. Dr. McLaughlin’s testimony is sufficient to raise the defense. The trial court erred in preventing appellant' from presenting evidence which he was entitled to offer before the jury.

The judgment is reversed and the cause remanded.


author: PHILLIPS, Judge.

text:
    Wilbert L. WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 58155.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 5, 1979.
    Mary Ann Beaty, Austin, for appellant.
    Ronald D. Earle, Dist Atty., and Bill White, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for burglary of a habitation. A jury assessed punishment at imprisonment for 30 years.

Appellant contends that the trial court erred in permitting the prosecutor at the punishment phase of the trial to ask a witness whether she had heard of specific acts of misconduct on the part of appellant. Appellant maintains that the testimony of this witness had nothing to do with appellant’s reputation, and therefore the State should not have been allowed to ask “have you heard” questions to test the witness’s knowledge of his reputation. We agree with appellant’s contention and reverse.

At the punishment phase of the trial, appellant’s wife, Gwendolyn Washington, testified on direct examination as follows:

Questions by Ms. Beaty [defense counsel]:

Q Would you state your name for the record?
A Gwendolyn Mary Washington.
Q And what is your relationship with Wilbert Washington?
A I am his wife.
Q And where are you presently residing?
A 2432 Donna.
Q Are you living with anyone there?
A I am staying with my cousin.
Q How many children do you have?
A I have three.
Q And are you currently employed?
A No, I am not.
Q Was Wilbert working at the time he was arrested?
A Yes, he was.
Q You know how long he had been working?
A No, I don’t.
Q Was it as long as a year?
A Well, at that job, no.
Q But had he been working for as long as a year?
A Yes, he had.
Q Was he holding down only one job during that time?
A No, he had two.
Q At one time?
A Yes.
Q What kind of jobs were these when he was working two jobs?
A One was construction and another, he was working at a bank.
Q And how long did he hold down two jobs?
A About three or four months.
Q How long have you known Wilbert?
A I’ve been knowing him for going on three years.
Q Has he been supporting you and the children?
A Yes, he has.
Q What is your religious affiliation?
A I am a Baptist.
Q Is Wilbert, also?
A Yes.
Q Does Wilbert come from a large family?
A Yes, he has.
Q Do most of them live here in town?
A Yes, they do.
Q Are you close to them at all?
A Yes, I am.
Q And what about your family?
A I have a small family.
Q Are they here in town?
A Yes, they are.
Q Are they fairly close with Wilbert, do you know?
A Yes, they are.
MS. BEATY: I will pass the witness.

On cross-examination, over appellant’s objection, the State asked more than 20 “have you heard” questions about specific acts of misconduct on the part of appellant.

Relying on Childs v. State, 491 S.W.2d 907 (Tex.Crim.App.1973), the State argues that the witness’s testimony made her a reputation witness. This Court recently overruled Childs in Ward v. State, 591 S.W.2d 810 (1979). The holding and reasoning of Ward, supra, are directly applicable to the present case:

Since the purpose of a have you heard question is to test the witness who purports to be familiar with hearsay and rumors of the accused’s reputation, a witness who has not professed to be familiar with that reputation in the community could not logically be discredited by questions of whether he has heard other rumors of acts inconsistent with that reputation. Simply stated, there is no reasonable basis for asking have you heard questions of a witness who testifies to his personal opinion of someone’s character, as opposed to the reputation of that person’s character. Since appellant’s wife was not testifying to his reputation, no have you heard questions to test familiarity with that reputation should have been allowed at all.
. Absent a showing that the witness was familiar with and testifying to the reputation in the community, such questions were without probative value on their only authorized purpose (i. e. to test sincerity and familiarity with that reputation), and could only serve the impermissible purpose of prejudicing the jury by showing rumors of inadmissible acts of misconduct by the accused. To the extent that Childs v. State, supra, authorized use of have you heard questions in the cross-examination of any witness who gave testimony that might be seen as reflecting upon character, even though no reputation testimony was given, that case was unsupported by precedent and by reason, and it is overruled.

In the present case appellant’s wife clearly gave no testimony concerning appellant’s reputation. Under our holding in Ward, supra, it was error to permit the “have you heard” questions.

The judgment is reversed and the cause remanded.

ROBERTS, J., not participating.


author: ONION, Presiding Judge.

text:
    Billy Harold CHAMPION, Appellant, v. The STATE of Texas, Appellee.
    No. 62051.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 5, 1979.
    Mike Wade, Monahans, for appellant.
    Robert Huttash, State’s Atty., and Alfred Walker, Asst. State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. Appellant plead guilty before the court on May 26,1977, to the offense of robbery and was assessed punishment at ten .(10) years’ confinement in the Texas Department of Corrections. The imposition of sentence was suspended, and appellant was placed on probation for a term of ten (10) years, subject to certain conditions of probation. Among those, appellant was to: ******

“(2) Commit no offense against the laws of this or any other State or the United States;
“(3) Avoid injurious or vicious habits (including the use of narcotic or habit-forming drugs and alcoholic beverages); ******
“(11) Pay the court costs in this cause on or before 1st day of July, 1978;
“(12) Pay adult probation fee of Ten ($10.00) Dollars per month payable on the first Wednesday of each month for one year;
“(a) Make $101.50 restitution to Sgt. Robert' D. Staneck through the Ward County Texas Adult Probation Officer, as follows, to wit: in equal monthly installments for a period of twelve (12) months, commencing on July 1, 1977.”

• The State filed a motion to revoke probation on March 3, 1978, alleging, inter alia, that appellant had violated condition (2) because on or about February 5, 1978, he intentionally and knowingly caused bodily injury to Harold Rosenberry, a peace officer in the lawful discharge of his official duty when appellant knew Rosenberry was a peace officer, by then and there striking him with his fist; it also alleged that appellant violated condition (3) in that appellant, on or about February 5,1978, appeared in a public place, the 4900 block of Pickett Street in Greenville, under the influence of alcohol to the degree that appellant might endanger himself and others. A capias was issued, but appellant was not arrested until September 29, 1978. Counsel was appointed for appellant on November 6, 1978. On November 9,1978, the State’s first amended motion to revoke probation was filed alleging those violations of conditions of probation set out in the original motion as well as others, namely: that appellant violated condition (11) in that he failed to pay any part of the court costs incurred on or before July 1, 1978; that he violated condition (12) in that he failed to pay adult probation fees of Ten ($10.00) Dollars per month payable on the first Wednesday of each month for one year; and that he violated condition (12)(a) in that he failed to make $101.50 restitution to Sgt. Robert D. Staneck through the Ward County Texas Adult Probation Officer in equal monthly installments for a period of twelve (12) months, commencing July 1, 1977.

On December 28, 1978, a hearing was held on the amended motion at the conclusion of which appellant’s probation was revoked because of violations of conditions (2), (3), (11), (12) and (12)(a). Sentence was imposed and notice of appeal given.

On appeal the appellant contends the motion to revoke probation should have been dismissed upon his request on December 28, 1978, prior to the revocation hearing, because the State was not ready within 120 days of the commencement of the revocation proceedings. He contends Article 32A.02, V.A.C.C.P. (the Speedy Trial Act) is applicable to revocation proceedings and entitled him to discharge. This presents a question of first impression.

Article 32A.02, V.A.C.C.P. (Speedy Trial Act), provides in part:

“Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
“(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony;
“(2) 90 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for more than 180 days;
“(3) 60 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less; or
“(4) 30 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a fine only.
“Sec. 2. (a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when an indictment, information, or complaint against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.
“(b) If a defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, a criminal action commences for purposes of this article on the date of the mistrial, the order granting a new trial, or the remand.
“(c) If an indictment, information, or complaint is dismissed on motion of the defendant, a criminal action commences for the purposes of the article when a new indictment, information, or complaint against the defendant is filed in court, unless the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is detained or released.” (Emphasis supplied.)

While it appears that revocation proceedings are criminal prosecutions, Fariss v. Tipps, 463 S.W.2d 176 (Tex.Sup.Ct.1971), revocation proceedings are not commenced by the filing of an indictment, an information or a complaint, but by a motion to revoke probation. See Article 42.12, § 8, V.A.C.C.P. A motion to revoke probation need not meet the particularities of an indictment, information or complaint. Chacon v. State, 558 S.W.2d 874 (Tex.Cr.App.1977); Rhodes v. State, 491 S.W.2d 895 (Tex.Cr.App.1973); Kuenstler v. State, 486 S.W.2d 367 (Tex.Cr.App.1972). See also Antwine v. State, 518 S.W.2d 830 (Tex.Cr.App.1975); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Garner v. State, 545 S.W.2d 178 (Tex.Cr.App.1977).

In Cotton v. State, 523 S.W.2d 673 (Tex.Cr.App.1975), it was held that a motion to revoke probation is not an indictment or information, and that a statute of limitations requiring that an indictment or information be presented within two years was not applicable. Further, it has been held that revocation of probation based on the fact that probationer had committed a particular offense will not bar subsequent prosecution for such offense on the grounds of double jeopardy. Settles v. State, 403 S.W.2d 417 (Tex.Cr.App.1966); Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973); Valdez v. State, 508 S.W.2d 842 (Tex.Cr.App.1973); Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977).

Still further, a motion to revoke probation need not allege a commission of a felony or misdemeanor to be a valid revocation motion. It may merely allege a failure to report to the probation officer as directed in the probationary conditions. Whiteside v. State, 468 S.W.2d 831 (Tex.Cr.App.1971); Butler v. State, 482 S.W.2d 643 (Tex.Cr.App.1972); Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969). See also Davis v. State, 563 S.W.2d 264 (Tex.Cr.App.1978); Article 42.12, V.A.C.C.P., note 267, and cases there cited.

If the Speedy Trial Act applies, what time limitations apply when the revocation motion alleges the commission of both a felony and a misdemeanor? What time limitations apply when the revocation motion does not allege a commission of a penal offense but only a violation of some other probationary condition?

We conclude that it was not the legislative intent for the Speedy Trial Act to apply to motions to revoke probation. We are reinforced in this decision by the fact that the Legislature has previously provided statutorily for a speedy revocation hearing for those probationers who were not on bail and had requested the same. Article 42.12, § 8(a), V.A.C.C.P., provides in part:

“. . . If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion . . . .”

In addition to the foregoing statutory provision, a probationer has a constitutional right to a speedy hearing if that right is invoked. Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975); Hernandez v. State, 556 S.W.2d 337 (Tex.Cr.App.1977); Newcomb v. State, 547 S.W.2d 37 (Tex.Cr.App.1977) (Concurring Opinion). See also Fraire v. State, 588 S.W.2d 789 (Tex.Cr.App.1979) and Farris v. Tipps, supra.

It would appear from the record before us that the appellant was in confinement from his arrest on September 29,1978 until the revocation hearing on December 28, 1978. The appellant never sought to exercise his statutory rights or those accorded by the constitution. He only attempted to invoke what rights he had, as a probationer, under the Speedy Trial Act. We hold he had none. Appellant’s first ground of error is overruled.

In four grounds of error the appellant challenges the sufficiency of the evidence to prove the alleged violation of the probationary conditions. Among the contentions are claims that the evidence is insufficient to show that he failed to make restitution or pay the court costs assessed.

David Mills, Adult Probation Officer of the 143rd Judicial District Court, testified that the appellant had never paid any part of the court costs assessed or any part of the restitution required by the probationary conditions. This testimony was undisputed.

Article 42.12, § 8(c), V.A.C.C.P., provides:

“In a probation revocation hearing at which it is alleged that the probationer violated the conditions of probation by failing to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.”

The affirmative defense above described must be raised by the probationer. Jones v. State, 589 S.W.2d 419 (Tex.Cr.App.1979). The appellant never raised a defense of inability to pay. The State’s testimony is sufficient to show violations of the conditions of probation by failing to pay court costs and restitution and to justify revocation on these grounds alone. Ross v. State, supra. We need not consider appellant’s other contentions.

Finding no abuse of discretion, the judgment is affirmed.

      . Appellant argues that the criminal prosecution began when the first motion to revoke probation was filed on March 3, 1978. He recognizes that the time limitations of the Speedy Trial Act, however, did not become applicable to his case until July 1, 1978 in light of Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978), but contends more than 120 days elapsed from July 1st until December 28, 1978.

      . Those probationers against whom a revocation motion has been filed and who have subsequently been released on bail are not normally anxious for a speedy hearing on the revocation motion, although there are remedies to encourage the same.


text:
    Cornell ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 58222.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 12, 1979.

      W. B. “Bennie” House, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin Hart-mann and Kay Burkhalter, Asst. Dist. At-tys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of murder wherein the jury assessed appellant’s punishment enhanced by a prior felony conviction under the ambit of V.T.C.A. Penal Code, § 12.42(c), at confinement in the Texas Department of Corrections for a term of twenty years.

At the outset, we are met with the contention that the trial court erred in failing to submit a charge on the lesser included offense of voluntary manslaughter after the evidence fairly raised the issue. We agree with appellant and, accordingly, reverse the judgment below.

The record reflects that Officers Berry-man and Nelson were dispatched to 3514 Beulah in Houston in response to a shooting “call.” Upon arriving at the residence, Ber-ryman asked appellant what had happened. Appellant pointed to the deceased lying on the floor and responded that “he [the deceased] was going to go to the kitchen to get a knife, so I went to the bedroom and got my shotgun. And when he came out, I shot him.” Appellant was thereafter placed under arrest and given his Miranda warnings.

Mrs. Lula Douglas, appellant’s common law wife, testified that appellant and the deceased, her son, spent the entire evening consuming some two cases of beer between them and, from time to time, arguing. The nature of the argument surrounded what the deceased felt was an effort by appellant to procure the deceased’s wife for appellant’s brother and of appellant allegedly being the cause of the deceased having lost both his wife and his pickup truck in the not too distant past. She was out of their presence, however, during events preceding the shooting.

Appellant testified during the offense stage of the trial, recounting the nature and quality of the recurring argument between him and the deceased, particularly the fact that the latter continually told appellant, “Old man, I will get you for causing me to lose my wife and pickup.” Appellant also noted that he had had trouble of this sort with the deceased on more than one past occasion, as had other persons who had been the object of his violent temperament.

As midnight approached Mrs. Douglas left to fetch a second case of beer. She returned to find the argument still in progress. At some point the deceased picked up a standing metal ash tray and threatened appellant with it; Mrs. Douglas admonished her son and took the ash tray from him and put it back in its place. After she left the room, suddenly the deceased told appellant that he was going to get a knife and fix him, and left in the direction of the kitchen. Appellant ran to his bedroom, got his shotgun and was returning to the living room when he saw the deceased coming out of the kitchen “pretty fast.” Appellant testified that at that juncture he felt that the deceased could and would carry out his past threats and that he was in fear of serious physical harm and death. He fired at the deceased one time, striking him in the breastbone and killing him. Appellant then returned to the living room with the shotgun and sat down.

The trial court submitted the issue of self-defense to the jury but declined, over appellant’s timely objection, to submit a requested charge on voluntary manslaughter. The jury then returned a verdict of guilty of the only offense submitted to them, namely murder.

It was formerly settled that where evidence fairly raises the issue of voluntary manslaughter, and the charge is properly requested, the court is bound to submit such issue to the jury and the failure to do so is reversible error. Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974). Indeed, as this Court noted in Ray:

“The testimony of the defendant alone is sufficient to raise the issue [of voluntary manslaughter] and, once it is raised, the court, without determining the weight or the truth or falsity of the testimony is bound to submit the issue for jury determination. [cites omitted] Where the issue of [voluntary manslaughter] is raised by the evidence, the fact that the evidence also raises the issue of self-defense and the accused is granted [the] requested instruction on the same does not deprive the accused of his right to an instruction on [voluntary manslaughter].”

Id. at 667.

Testimony in Ray, supra, showed that the complainant attacked the defendant which led the latter to fear for his life, and this Court held that the issue of assault with intent to commit murder without malice [under our former Penal Code] was raised. The Court has reached the same conclusion in a multitude of cases involving similar fact situations under former penal codes. See, e. g., Armentrout v. State, 515 S.W.2d 297. (Tex.Cr.App.1974); Monroe v. State, 501 S.W.2d 639 (Tex.Cr.App.1973); Lewis v. State, 89 Tex.Cr.R. 345, 231 S.W. 113 (1921).

V.T.C.A. Penal Code, § 19.04 defines the offense of voluntary manslaughter as follows:

“(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
(b) ‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the résult of former provocation.
(c) ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

Presently the Court continues to be instructed by cases decided under the former manslaughter statutes, McCartney v. State, 542 S.W.2d 156, 160 (Tex.Cr.App.1976), and the governing principle is stated to be: “The charge on voluntary manslaughter is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause.” Cerda v. State, 557 S.W.2d 954, 958 (Tex.Cr.App.1977). As Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979) and Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1979) demonstrate, however, application of the principle depends upon the particular facts of the cause.

In Luck the Court could not find evidence which would raise the issue of voluntary manslaughter, pointing out that at no time did Luck, who did not testify, indicate in his statement recounted by a police officer, “that he was in fear of the deceased.” Medlock, on the other hand, particularly notes her testimony that when the deceased came toward her, saying he was going to get her, “I was scared. I didn’t have nowhere to run ... It was my life or Medloek’s,” and with other circumstances found “sufficient evidence was presented in this case to raise the issue that the appellant may have acted under the immediate influence of sudden passion.”

On the point of contrast between Luck and Medlock the instant case easily comes within the purview of Medlock. The gist of the testimony of appellant, supported in some degree by that of his wife, is that, although the tide of the argument rose and ebbed during the late hours, by midnight the deceased had once moved to threaten him with a metal ash tray, desisting only by restraint of his mother, and then subsequently in her absence from the room combined words and deeds that caused appellant to fear for his person and his life and to provoke him into action. Factually, the essential ingredients are similar to those in Ray, supra, that “evidenced an immediate act of the injured party that caused the appellant’s agitated state of mind and provoked the shooting,” 515 S.W.2d at 667. And, as in Ray, we are unable to say that the acts of the deceased here were not adequate cause for sudden passion as a matter of law. The issue was a factual one for determination by the jury. Id.

The failure of the trial court to submit the charge on voluntary manslaughter left the jury with only the alternatives of finding appellant guilty of murder or freeing him. See London v. State, 547 S.W.2d 27, 29 (Tex.Cr.App.1977). The law does not insist that an accused so situated suffer such extreme options when he points to a more moderate choice which may be made available. Because the trial court, though aware of it, did not provide it, the ground of error must be sustained.

For these reasons and the error found the judgment is reversed and the cause remanded.

      . There were conflicting opinions expressed by the two arresting officers as to whether appellant was intoxicated at the time of his arrest. Though one agreed with defense counsel that appellant was “under the influence,” the other did not, though he admitted that appellant was a little high. Autopsy reports showed that the deceased was intoxicated at the time ot his death.

      . As appellant described it, the deceased “broke for the kitchen.”

      . Right at this point the prosecuting attorney seems to have understood and probably correctly characterized the situation in her next question:
      “Q: There was nothing that prevented you simply from walking out the front door and walking around the block until tempers cooled off; was there?”

      . After appellant testified that he did not see whether the deceased actually obtained and was armed with a knife from the kitchen, came the following testimony:
      “Q: Are you telling us that you didn’t take time to find out before you fired whether or not he had a knife?
      A: When a person is that close and coming out of the kitchen and already threatened, who is going to take time?
      Q: You didn’t take time?
      * * * * * *
      A: No.”
      Also, he testified that the arrangement of the house and its egresses were such that he could not retreat because he had “nowhere to go.”

      .As soon as the shot was fired and standing near him, Mrs. Douglas asked appellant why he had shot the deceased, but did not get an answer. Appellant sat down in the living room, he testified, to “try to get myself together.” Another Douglas son, who lived nearby and was called just after the shooting, arrived to see appellant “just sitting there,” and testified that he did not offer any explanation for his actions. In a written statement made some three hours later, portions of which he later recanted in his testimony, appellant is reported to have said, “After I got my gun, I really don’t know what happened, except that I shot him.” It also states that upon reloading the shotgun his wife yelled, “Don’t shoot him any more,” but appellant testified that she actually uttered, “You don’t have to do that.”

      . In McGee v. State, 473 S.W.2d 11, 15 at n. 1 (Tex.Cr.App.1971) (Odom, J., dissenting), the following definitions from Webster’s Dictionary appear: “Anger is the general term for the emotional reaction of extreme displeasure and suggests neither a definite degree of intensity, nor an outward manifestation; rage implies loss of self-control from violence of emotion; resentment is a feeling of indignant displeasure at something regarded as a wrong, insult, or injury; and terror is a state of intensive fear.”
      To apply these definitions in the context of this case is to achieve the eventual result with little difficulty.

      . “. . . [Sjaid § 19.04 is a blend of the old and the new, and cases decided under former Article 1257c, as enacted in 1927, and those decided earlier under the former manslaughter statute are instructive in deciding the case before us.”

      . Indeed, in his second ground of error, appellant contends that the trial court commented on the weight of the evidence in that testimony of two jurors at the hearing on the motion for new trial revealed that they and at least half of the jury overheard the trial judge tell his clerk shortly before' he submitted the jury charge that the instant case, “looks like a case of voluntary manslaughter.” Given our disposition of appellant’s first ground of error, we need not reach the question of whether the jurors’ testimony regarding their discussion of this comment and their dilemma of wanting to find appellant guilty of an offense which they could not possibly do, given the lack of a charge on voluntary manslaughter, poses reversible error — albeit a purported attempt at “impeaching” their verdict. We pause merely to note that the trial court’s comments only added further confusion to a markedly muddled situation regarding voluntary manslaughter and that such a comment was clearly uncalled for where, as here, it reached the ears of a jury shortly before their deliberations as to an accused’s guilt or innocence in a closely contested case.


author: TOM G. DAVIS, Judge.

text:
    Owen Franklin STIDHAM, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 58224.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 12, 1979.
    Mike DeGeurin, Houston, for appellant.
    Carol S, Vance, Dist. Atty. and Michael Kuhn, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for attempted aggravated rape. After finding appellant guilty, the jury assessed punishment at five years.

In a supplemental brief, appellant contends that the charge to the jury contains a fundamental error in that it did not require the jury to find all of the essential elements of the offense in order to convict. This contention is raised for the first time on appeal.

The indictment under which appellant was charged alleges in pertinent part that appellant:

“intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death to E_ G__, a female not his wife and hereafter styled the Complainant, attempt to have sexual intercourse with the Complainant and without the consent of the Complainant, by choking her and threatening her with a crowbar.” [Emphasis added.]

The portion of the court’s charge to the jury which applied the law to the facts of the offense recites:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 7th day of January, 1977 in Harris County, Texas, the defendant, Owen Franklin Stidham, Jr., did, without the consent of E_G__, a female, and by the use of force or by threatening the-imminent infliction of serious bodily injury and death, attempt to have sexual intercourse with the said E_ G_, and that the said E- G_ was not then and there the wife of the said defendant, then you will find the defendant guilty of attempted aggravated rape as charged in the Indictment.”

In Zachery v. State, 552 S.W.2d 136 (Tex.Cr.App.), we held that an indictment for attempted rape which failed to allege a culpable mental state was fundamentally defective. The indictment was defective in that the culpable mental state is an essential element of the offense. See, V.T.C.A. Penal Code, Sec. 6.02.

The jury charge in the instant case failed to include the required culpable mental state of “knowingly” or “intentionally.” Such an omission of an essential element of the offense renders the charge fundamentally defective. See Mendoza v. State, 577 S.W.2d 240 (Tex.Cr.App.); Holloway v. State, 583 S.W.2d 376 (Tex.Cr.App.); West v. State, 567 S.W.2d 515 (Tex.Cr.App.); Thompson v. State, 574 S.W.2d 103 (Tex.Cr.App.); Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.); West v. State, 572 S.W.2d 712 (Tex.Cr.App.); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.). See also Williams v. State, 547 S.W.2d 18 (Tex.Cr.App.).

The judgment is reversed and the cause remanded.


text:
    Debra R. HAMILTON, Appellant, v. The STATE of Texas, Appellee.
    No. 58458.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 12, 1979.

      Richard M. Lovelace, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Miguel J. Cervantes, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for possession of heroin. Punishment is imprisonment for four years.

In a single ground of error appellant complains that the heroin admitted into evidence at trial was the product of an unlawful arrest. We affirm.

On October 6,1976, El Paso police officer Steve Santana, fellow officer Antonio Franco, and some other officers were engaged in surveillance of a known heroin dealer named Yolanda Garcia in the downtown area of El Paso, based on information received from an unnamed informer. The officers observed Garcia enter the Coney Island Restaurant. Shortly thereafter they observed appellant and a man named Larry Wilson enter the restaurant. The officers moved to a vantage point in front of an adjacent store, a few feet away from the restaurant. The front of the restaurant was glass; there was lettering on the glass that helped protect the officers from being seen. Through the lettering the officers could observe the activities of the patrons inside. They saw that appellant and Wilson had sat down in the same booth with Garcia. They observed appellant hand Carcia some money. Garcia in return gave appellant a balloon, which appellant placed in her mouth. From their experience in dealing with drug trafficking, the officers recognized this as a heroin transaction. When appellant and Wilson left the restaurant, the officers closed in quickly and arrested them. In spite of their efforts, appellant had time to swallow the balloon. The balloon was subsequently retrieved from appellant’s stomach pursuant to a valid consent search.

The balloon was found to contain heroin, which was admitted in evidence at trial. Appellant made a motion to suppress the heroin, which motion the trial court denied. Appellant also objected at trial to the admission in evidence of the heroin.

Appellant urges that the heroin was obtained as a result of an unlawful arrest. The informer whom the officers relied on to subject Garcia to surveillance was never shown to meet the reliability requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). But for the tip received from the informer, appellant argues, the officers would not have been observing Garcia and would not have witnessed the sale of heroin to appellant. It follows, according to appellant, that the reliability of the informer under Aguilar and Spinelli is critical to the determination whether the officers had probable cause to arrest appellant.

Although novel, appellant’s contention is without merit. For whatever reason they happened to be where they were, the officers witnessed the transaction in plain view from a public vantage point outside the Coney Island Restaurant. As was stated in James v. United States, 135 U.S.App.D.C. 314, 315 footnote 1, 418 F.2d 1150, 1151, footnote 1 (D.C. Cir. 1969):

. The police are free to observe circumstances and evidence that are in “plain view” to the public. See United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). . . That the policeman may have to crane his neck, or bend over, or squat, does not render the doctrine inapplicable, so long as what he saw would have been visible to any curious passerby. .

See also United States v. Arredondo-Hernandez, 574 F.2d 1312 (5th Cir. 1978); United States v. Various Gambling Devices, 478 F.2d 1194 (5th Cir. 1973); Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977); Licerio v. State, 456 S.W.2d 96 (Tex.Cr.App.1970). Appellant had no reasonable expectation of privacy while sitting in the restaurant. See Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978). Upon observing the transaction and recognizing it as an offense, the officers were authorized to make a warrantless arrest of appellant pursuant to Article 14.01, V.A.C.C.P.

The officers’ observation of appellant committing the offense did not constitute a search. Appellant’s actions were open to the plain view of the officers, who had stationed themselves in a public place, and who observed nothing more than a curious passerby might have observed. Upon witnessing appellant’s actions the officers had probable cause to arrest her independent of any information received from the alleged informer. Cf. Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973). Appellant’s arrest was lawful.

The heroin was seized pursuant to a lawful arrest of appellant and was properly admitted in evidence.

The judgment is affirmed.

ROBERTS, J., not participating.


author: ODOM, Judge.

text:
    Buddy Ray HUSSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 58459.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 12, 1979.

      Charles M. McDonald, Waco, for appellant.
    Felipe Reyna, Dist. Atty., and Lynn W. Malone, Asst. Dist. Atty., Waco, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at 60 years.

In his third ground of error appellant contends the trial court erroneously denied his motion for change of venue filed pursuant to Art. 31.03, V.A.C.C.P. The motion, properly supported by affidavits of two persons, was presented at a hearing on pretrial motions held on February 14,1977, and was denied without an evidentiary hearing even though no controverting affidavits had been filed by the State under Art. 31.04, V.A.C.C.P. Trial commenced two weeks later on February 28.

Under well-established precedent, .as discussed in Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.), and Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.), appellant was entitled to a change of venue as a matter of law when the State failed to contest the application by controverting affidavits or by evidence presented at a hearing on the motion, and the trial court’s ruling constituted reversible error.

In its reply brief the State argues that appellant’s motion does not properly allege “a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial,” as contemplated by Art. 31.03(2), supra. The cases cited by the State, however, address the sufficiency of the evidence to show such a “dangerous combination” when a hearing on the motion was in fact held. Here no hearing was held. The issue here concerns denial of a motion without a hearing.

Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, held that the application for change of venue and supporting affidavit need not follow the exact wording of the statute. The application in that case recited:

“. . . there is a dangerous combination against him instituted by influential persons by reason of which he cannot expect to obtain a fair and impartial trial, as was contemplated by the Statutes and the Constitution of the State.”

Appellant’s application in this case alleged

“. . . there exists in the county where the prosecution is commenced a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial. In this connection it is shown to the Court that the District Attorney’s Office of McLennan County, Texas, and her personnel, in particular Mr. Gary Coker, the Assistant District Attorney trying this case, have such a dislike and hatred for this defendant, that this defendant cannot expect to get a fair trial, and the District Attorney and his assistants consciously and in good faith cannot carry out the responsibilities and commands of Article 2.01, V.A.C.C.P.”

The affiants swore:

“. . that in our opinions, there does in fact exist in McLennan County, Texas, a dangerous combination against the defendant instigated by influential persons, by reason of which the defendant cannot expect a fair trial in McLen-nan County, Texas.”

The application was sufficient to comply with Art. 31.03, supra, even though it went beyond the statutory language in its allegations. It cannot be denied that members of the prosecutor's office can be the source of such injury as alleged. The allegations here are much more than the mere fact of a “swift prosecution” as was held insufficient to prove a dangerous combination in Myers v. State, 77 Tex.Cr.R. 239, 177 S.W. 1167, cited by the State. The trial court reversibly erred when it denied appellant’s uncon-troverted application.

The judgment is reversed and the cause remanded.


text:
    James Earl GAMBLE, Appellant, v. The STATE of Texas, Appellee. Joe Nathan DAVIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 61302, 61303.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 12, 1979.
    Reed Jackson, Fairfield, for Gamble, on appeal only.
    Steven A. Neal, Fairfield, for Davis, on appeal only.
    Robert Huttash, State’s Atty. and Alfred W. Walker, Asst. State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeals are taken from convictions for aggravated robbery. After the jury found that each appellant had previously been convicted of a felony offense, punishment was assessed at 15 years for Gamble and 25 years for Davis.

Appellants were convicted of robbing at gunpoint Wallace Coates at the Teague Jewelry Company in Teague on December 17, 1976. Coates stated that the assailants took several items of jewelry. Sue Fulcher, Coates’ daughter, testified that she and her father were tied up in the store during the robbery by two individuals. Fulcher related that these individuals left the store and entered a white Cadillac driven by a third party. Neither Fulcher nor Coates could identify appellants as the individuals who robbed them.

Trooper Ronald Wood, of the Texas Department of Public Safety, testified that after overhearing a radio transmission reporting the robbery, he stopped a white Cadillac on Interstate 45 near Centerville. Appellants were inside the car with a third individual. A large amount of jewelry later identified as belonging to Coates was found inside the car.

Both appellants testified that the jewelry found in the car was purchased from Bubba Holley of Mexia. They stated that Holley was paid $3,000 for the jewelry near Teag-ue on the morning of the robbery. Holley was driving a white Cadillac of a different year model than that appellants were stopped in by Trooper Wood.

The appellants complain of the court reporter’s failure to transcribe his notes from final arguments at the guilt or innocence and punishment phase of the trial.

The record reflects that prior to trial both appellants requested the court reporter to make notes of the final arguments. This request was granted by the trial court. After they were convicted, both appellants requested the court reporter to transcribe his notes of the jury arguments and include such transcription in the record on appeal. On November 1, 1977, both appellants objected to the record on appeal in that the record did not include the jury arguments. The trial court sustained these objections to the record.

On August 17, 1978, the trial court overruled appellants’ amended motion for a new trial. The motion requested a new trial based on the failure of the record on appeal to include the jury arguments. Attached as an exhibit to the motion was a letter dated July 7,1977, from appellant Gamble’s attorney, the Honorable Reed Jackson, to Mr. Jim Broom, Official Court Reporter for the 87th Judicial District Court. In the letter, Jackson requested that Broom transcribe all of his notes from the trial including jury arguments. On October 31, 1977, appellant Davis’ attorney, the Honorable Steven Neal, requested that Broom transcribe the final arguments in the trial. Finally on March ,8, 1978, Broom signed an affidavit which stated as follows:

“I, Jim C. Broom, who was employed as the Official Court Reporter in and for the 87th Judicial District of Texas when this was tried, am unable to produce the final arguments of the above captioned case due to the fact that the notes of said case were destroyed after the Statement of Facts was prepared. The final arguments were not included in the original Statement of Facts due to a misunderstanding between Mr. Jackson and myself.”

In spite of the fact that the trial court had earlier sustained appellants’ objections to the record, the record was approved without the jury arguments on August 17, 1978.

Art. 40.09, Sec. 4, V.A.C.C.P., provides in part:

“At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments. . . .”

In Timmons v. State, 586 S.W.2d 509 (Tex.Cr.App.), this Court was confronted with a situation in which the court reporter had lost his notes from the entire trial. In that case, we stated:

“It is well settled that the burden is on an appellant to establish that he had been deprived of his statement of facts. Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223, 224 (1953). To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant must show, due diligence in requesting it and that failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches, or other fault on the part of the appellant and his counsel. Randolph v. State, 155 Tex.Cr.R. 432, 234 S.W.2d 235 (1950); Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479 (1933); Roberts v. State, 62 Tex.Cr.R. 7, 136 S.W. 483 (1911). Indeed, the circumstances in such cases should be viewed from the appellant’s standpoint, Young v. State, 172 S.W.2d 500 (Tex.Cr.App.1943), and any reasonable doubt is resolved in favor of the appellant. Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225, 228 (1940).”

The State contends that the failure to include jury arguments in the record on appeal is harmless in view of the fact that the appellants have not alleged any errors which occurred during jury argument. The State relies on Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.), in which the Court held that the failure of the court reporter to transcribe and include the voir dire examination is not reversible error unless there is a claim by the appellant that an error occurred during the voir dire examination.

In Ex Parte Jones, 562 S.W.2d 469 (Tex.Cr.App.), the appellant Jones was back before this Court by way of a post-conviction writ of habeas corpus. In that case, it was noted that in Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.), the requirement of Jones v. State, supra, that harm or prejudice must be alleged to mandate reversal for a violation of Art. 40.09, Sec. 4, supra, was overruled. Ex Parte Jones, supra at 470. Thus, the State’s contention in the instant case is without merit.

The record reflects that both appellants timely requested that the reporter take notes of the arguments and that those notes be transcribed to be included in the record on appeal. Although the court reporter stated that notes were not included due to a “misunderstanding” with one of the attorneys, neither the nature of, nor the fault for that misunderstanding is revealed. Appellants’ repeated attempts to have the notes transcribed indicates due diligence on their part and any reasonable doubt must be resolved in favor of the appellants. See, Lamkin v. State, supra.

The judgments are reversed and the causes remanded.

      . Appellants were separately indicted for the same offense and tried jointly. See, Art. 36.09, V.A.C.C.P.


text:
    Javier Rodolfo RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 62760.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 12, 1979.
    Kitty Schild, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Lane C. Reedman, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for burglary. The court assessed punishment at five years, probated.

Ramirez was arrested on July 1,1977 for burglary. The case was originally set for trial on October 3, 1977, but there was no trial at that time. The State filed affidavits announcing ready on June 30, 1978 and on July 3, 1978. The provisions of the Texas Speedy Trial Act, Article 32A.02, V.A.C. C.P., became effective July 1, 1978. See Wade v. State, 572 S.W.2d 533 (Tex.Cr.App. 1978). On July 3, 1978, the State filed its announcement of ready. The trial was set again for January 9, 1979, at which time Ramirez filed a motion to dismiss for lack of a speedy trial claiming that 535 days had passed since his indictment. The motion was overruled and Ramirez then pled guilty.

Ramirez has waived his rights under the Act. Article 32A.02, Section 3, V.A.C.C.P., provides:

“The failure of a defendant to move for discharge under the provisions of this article prior to trial or the entry of a plea of guilty constitutes a waiver of the rights accorded by this article.” (Emphasis supplied)

Nothing is presented for review. The judgment is affirmed.


text:
    Douglas CROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 62763.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 12, 1979.
    Frederick J. Griffin, Amarillo, for appellant.
    Thomas A. Curtis, Dist. Atty., John Byron Reese and Steve Schiwetz, Asst. Dist. Attys., Amarillo, and Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.

DOUGLAS, Judge.

This is an appeal from a revocation of probation. The conviction was for burglary. Punishment was assessed by the court at six years.

The motion to revoke alleged:

“On or about the 28th day of November, 1978, in Potter County, Texas, the said defendant, Douglas Cross did then and there knowingly and intentionally with intent to deprive the owner, Sue Bergner, of property, namely a watch, and without the effective consent of said owner, did unlawfully appropriate such property which had value of over $5.00 but less than $20.00, against the peace and dignity of the State of Texas.”

Sue Bergner testified during the State’s case in chief:

“Q. And how are you employed, Mrs. Bergner?
“A. I’m Assignment Supervisor with Southwestern Bell Telephone Company.
“Q. Okay. Could you repeat that, please. We are recording all of this and I had some difficulty hearing you.
“A. Okay. My job title is Assignment Supervisor with Southwestern Bell Telephone Company.
“Q. And could you describe your job duties to the Court, please?
“A. My office is the office in which we keep all records of telephone cable repairs and actually make those assignments to the service order.
“Q. Did you ever have occasion to order a Commemorative Watch to be given to an employee during, oh, the month of November or a little bit before that?
“A. Yes, sir.
U* * *
“Q. Okay. And could you describe to the Court how you ordered that particular watch?
"A. Through a special form that is provided to the telephone company listing the employee’s name, preference of gifts; just a standard form that we use that is forwarded on through the channels of organization and goes directly to the benefit committee.
“Q. Do you recall the date that you specifically ordered that watch?
“A. Yes. That was on October 6th, 1978.
“Q. And did you ever see the watch?
“A. No.
“Q. Have you ordered watches like this in the past?
“A. Yes.
“Q. When you have ordered watches like this in the past, what person at Southwestern Bell received the watch when it comes in?
“A. Well, there’s a place on the form that indicates the address that the gift should be sent. In this case it was Sue Bergner, Assignment Supervisor, 815 Tyler, Amarillo.”

Cross argues that the State failed to prove that Bergner was the owner as defined in V.T.C.A., Penal Code, Section 1.07(a)(24), which reads:

“(24) ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.
«* * *
“(28) ‘Possession’ means actual care, custody, control, or management.”

We have consistently held that it is the better practice to allege ownership on behalf of a corporation in a person acting for the corporation. Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App.1971); Walling v. State, 437 S.W.2d 563 (Tex.Cr.App.1969).

In Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976), this Court held that the State can prove ownership in one of three ways: (1) by showing title, (2) by proving possession, or (3) by showing that the alleged owner has a. greater right to possession than does the defendant. Possession may be proved by showing that the alleged owner controlled the property.

It is the employment relationship that determines whether a given individual is an “owner” within the meaning of Section 1.07(a)(24), supra. Commons v. State, 575 S.W.2d 518 (Tex.Cr.App.1979). In McGee v. State, 572 S.W.2d 723 (Tex.Cr.App.1978), we held that a sécurity guard was not an owner because she had no responsibility to acquire the goods for the store nor did she have any managerial authority. Here, the testimony of Bergner established that she did have managerial authority over her department. It was her responsibility to order the watch and her responsibility to award the watch to its intended donee. The watch was mailed to Bergner. She was to have care, custody and control over the watch until it was awarded. She clearly had a greater right to possession than did the appellant. Williams v. State, 537 S.W.2d 936 (Tex.Cr.App.1976). The State met its burden.

The judgment is affirmed.


text:
    James Louis CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 62818.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 12, 1979.
    James N. Barkley, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Gene D. Miles, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for driving a motor vehicle on a public highway while intoxicated. The punishment, assessed in a bench trial upon appellant’s plea of nolo contendere, was thirty (30) days’ imprisonment in the county jail and a $200.00 fine, probated.

In his sole ground of error, appellant contends the court erred in denying his motion to set aside the information in light of the provisions of Article 28.061, V.A.C. C.P.

Said statute provides:

“If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial as required by Article 32A.02 is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction.” (Emphasis supplied.)

Appellant, alleged in his motion to set aside the information that he had been arrested for speeding and driving while intoxicated on December 1, 1978; that he was charged in Municipal Court No. 1, City of Houston, with the offense of speeding; that the prosecution did not announce ready and he was not accorded an opportunity for a jury trial until January 11, 1979; that his motion to dismiss the speeding complaint under Article 32A.02, V.A.C.C.P. (Speedy Trial Act), was granted because the State was not ready for trial within thirty days.

Appellant further alleged that the speeding and driving while intoxicated charges grew out of the same transaction and that his discharge in municipal court barred any further prosecution for any other offense arising out of the same transaction in light of Article 28.061, supra.

The appellant attached to his motion to set aside the information a certified copy of the speeding complaint, his motion for dismissal of the complaint under the Speedy Trial Act, and a copy of the order of the municipal court granting the same.

The appellate record reflects that the trial court denied the motion to set aside the information, but there is no showing that appellant offered proof in support of such motion, requested an evidentiary hearing, or perfected a bill of exception. In fact, there is no transcription of the court reporter’s notes, if any, and no question of indi-gency is presented.

Apparently appellant takes the position that we should accept his motion to set aside the information and its attachments as self-proving. This we decline to do.

In Vaughn v. State, 456 S.W.2d 141 (Tex.Cr.App.1970), it was held that the allegations in a motion for new trial do not prove themselves. Further, it has been held that affidavits and certified copies of court documents are nothing more than pleadings which may authorize the introduction of supporting evidence. Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973); Brown v. State, 505 S.W.2d 277 (Tex.Cr.App.1974). Therefore, the documents attached to the motion to set aside the information are not evidence in and of themselves. The fact that the information in the instant case alleges “on or about December 1, 1978” the appellant drove while intoxicated, and the fact that the complaint in municipal court attached to appellant’s motion alleges the speeding offense occurred “on or about the 1st day of December, A.D.1978” do not of themselves show that the offenses grew out of the same transaction so as to invoke the provisions of said Article 28.061, supra. Further, the date alleged in a complaint, information or indictment may not be the date the offense occurred. The State is not bound by the alleged date so long as the date proved is anterior to the filing of the State’s pleadings and not so remote as to show that the offense is barred by statute of limitations. See Article 21.02, § 6, V.A.C.C.P. Sanders v. State, 70 Tex. Cr.R. 209, 156 S.W. 927 (1913); White v. State, 86 Tex.Cr.R. 420, 217 S.W. 389 (1920); Neal v. State, 374 S.W.2d 668 (Tex.Cr.App.1964); Williams v. State, 565 S.W.2d 63 (Tex.Cr.App.1978).

Appellant’s contention is overruled.

The judgment is affirmed.

      . Said Article 32A.02 provides in pertinent part:
      “Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
      •‘(X) * * *
      “(4) 30 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a fine only.”


text:
    T. L. JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 62814.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 12, 1979.
    Charles 0. Melder, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Larry P. Urquhart and Robert A. Moen, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of aggravated robbery, wherein the appellant, after waiving a trial by jury, entered a plea of guilty before the court. The court assessed punishment at twenty (20) years’ confinement in the Department of Corrections. The sufficiency of the evidence is not challenged by the appellant.

The sole question raised by the appellant is that the court erred in denying his motion to withdraw his guilty plea.

On March 13, 1978, appellant announced ready for jury trial after pleading not guilty to the indictment before the court. After the jury was impaneled and sworn, the appellant decided to change his plea to guilty. The appellant was then duly and thoroughly admonished in accordance with Article 26.13, V.A.C.C.P., he waived his right to a trial by jury, and after certain stipulations were entered into and offered into evidence, the court accepted the appellant’s plea of guilty. No punishment was assessed and the case was passed for a pre-sentence investigation.

On April 28, 1978, the case was again called for the purpose of assessing punishment. At this time, the appellant declared that he wished to withdraw his plea of guilty and enter a plea of not guilty. This was overruled by the trial court and punishment was assessed.

In support of his contention on appeal, appellant argues that a defendant is allowed to withdraw his plea prior to the time the court has taken the cause under advisement or pronounced judgment. Wilson v. State, 515 S.W.2d 274 (Tex.Cr.App.1974). Since a definite penalty is an essential element of a judgment, appellant claims that his request to withdraw his plea prior to his sentencing should have been granted. We disagree.

A liberal practice prevails in this state concerning the withdrawal of a guilty plea, Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W.2d 279 (1921); Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953), and a defendant may withdraw his guilty plea as a matter of right without assigning reason until such judgment has been pronounced or the case has been taken under advisement. Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (1959); Rumage v. State, 324 S.W.2d 865 (Tex.Cr.App.1959); Stanton v. State, supra; Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W.2d 594 (1947). However, where the defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. McWherter v. State, 571 S.W.2d 312 (Tex.Cr.App.1978).

Although appellant’s decision to withdraw his plea in the instant case came prior to the actual pronouncement of the judgment, it came long after the matter had been taken under advisement by the trial court. Under similar circumstances in Milligan v. State, supra, this court held that a defendant’s request to withdraw his plea of guilty after the case had been taken under advisement by the trial court came too late, and that the court did not abuse its discretion in refusing to allow the defendant to withdraw his plea.

We conclude that the request to withdraw the guilty plea which was some six weeks after the court had taken the case under advisement came too late, despite the fact that punishment had not been assessed. There was no abuse of discretion.

The judgment is affirmed.