author: GREEN, Commissioner.

text:
    Joseph H. AUSTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 51732.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.
    Gordon R. Cooper, II, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and James C. Brough, Alvin M. Titus and James Sims, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of the misdemeanor offense of false imprisonment. See V.T.C.A. Penal Code, Section 20.02. Punishment was assessed by the court at thirty days, probated for one year. The acts constituting the alleged false imprisonment occurred about 8:00 p.m. January 10, 1974, when appellant, surety on a forfeited $5,000 bail bond, the principal being Emery Scroggins, went with two employees to the home of Scroggins, kicked in the door when Scroggins refused to open it, forcibly wrestled him to the floor, seized and handcuffed Scroggins, and took him to the Harris County jail. Appellant there notified the sheriff that he, as surety on the forfeited bond, was surrendering Scroggins. Appellant had no arrest warrant, and neither he nor any of the men with him were peace officers.

Under his first ground of error, appellant admits that he forcibly “arrested” Scrog-gins, the complaining witness, after he had “jumped bail,” but he contends that the “arrest” was lawful by virtue of Article 17.16, V.A.C.C.P. He argues that he had not committed the offense of false imprisonment under V.T.C.A. Penal Code, Section 20.02, since subsection (d) of said Section provides: “It is no offense to detain or move another under this section when it is for the purpose of effecting a lawful arrest or detaining an individual lawfully arrested.” Appellant agrees that “the entire case then turns on whether the arrest by appellant of Scroggins was lawful or not.”

V.T.C.A. Penal Code provides:

“Section 20.02. False Imprisonment
“(a) A person commits an offense if he intentionally or knowingly restrains another person.
* * * * * *
(d) (Quoted above)”

Article 17.16, V.A.C.C.P. (1965) provides:

“Those who have become bail for the accused, or either of them, may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the sheriff of the county where he is prosecuted.”

This article is the same as its immediate predecessor, Article 282, V.A.C.C.P. 1925.

In the absence of a statute to the contrary, the common law right of a surety to arrest and surrender his principal is thusly set forth by the Supreme Court in Taylor v. Taintor, 16 (83 U.S.) Wall 366, p. 371, 21 L.Ed. 287:

“When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner.”

See also Fitzpatrick v. Williams, Sheriff (5th Cir. 1931), 46 F.2d 40, 73 A.L.R. 1365, and the authorities cited in Annotation, 73 A.L.R. 1369.

As stated in 8 C.J.S. Bail § 25, p. 44. “The right of the bail to seize their principal is not dependent on issuance of new process. None is needed. The right results from the nature of the undertaking of bail, and if there is no statutory provision to the contrary it need not be exercised by process, but, ordinarily, the bail may arrest the principal without any warrant or bailpiece.” (Emphasis added).

We refer now to Article 17.19, V.A.C.C.P. (1965) which reads as follows:

“Any surety, desiring to surrender his principal, may upon making affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases.”

This article is the same as its immediate predecessor, Article 285, V.A.C.C.P. 1925.

In Pfeil v. State, 118 Tex.Cr. 124, 40 S.W.2d 120 (1931), the Court stated:

“Under our statute, there are two modes by which a principal may be surrendered by his bail. The first is that pointed out in Article 282 of the Code of Criminal Procedure (1925) which is as follows: (identical with present Article 17.16, V.A. C.C.P., supra)
“Secondly, under Article 285, C.C.P., (1925) which provides: (identical with present Article 17.19, V.A.C.C.P., supra).”

In Pfeil, supra, p. 123, the Court stated that:

“When the statute prescribes the manner in which the principal in a bail bond may be surrendered by his sureties, the statutory method must be strictly followed.”

See also Apodaca v. State, Tex.Cr.App., 493 S.W.2d 859; Thompson v. State, 169 Tex.Cr. 495, 335 S.W.2d 226; Whitner v. State, 38 Tex.Cr. 146, 41 S.W. 595; Woodring v. State, 53 Tex.Cr. 17, 108 S.W. 371; Roberts v. State, 4 Tex.Cr.App. 129.

In Pfeil, supra, the Court, in construing the statute strictly, held that the surrender must be a manual surrender to the sheriff of the county where the principal is being prosecuted, and not to the sheriff of an adjoining county.

In Smith v. State, 47 Tex.Cr. 469, 85 S.W. 1078 (1915), the Court stated as follows on rehearing:

“Appellant contends that he had the right to arrest and deliver to the sheriff the alleged injured party, because he (appellant) was surety on his bond for his appearance before the district court, and under Article 318, Code Cr.Proe. 1895 that it was not necessary for him to obtain a warrant of arrest, or to take any other steps than simply arrest his principal and deliver him to the sheriff. It is true that Article 318 provides that the sureties on a bail bond may surrender their principal and be released, but under subsequent article of the Code it is provided that, wherever the surety desires to surrender his principal, he must make affidavit and obtain a warrant. Appellant urges, and cites some cases which he contends support his proposition, that the surety may arrest his principal for the purpose of surrendering him without warrant. An examination of those authorities, in our judgment, does not sustain the contention. It may be conceded that, if the surety could induce the principal to accompany him for the purpose of being surrendered, a warrant is not necessary; but this does not authorize the surety to forcibly arrest and take the principal and surrender him, unless he is armed with proper legal authority. . We are of opinion that, where the surety proposes to surrender his principal, he can do so, if the principal will accompany him to the sheriff willingly. If not, he must make the affidavit and secure the warrant of arrest. This seems to be our statutory provision.” (Emphasis added.)

See Woodring v. State, supra; Roberts v. State, supra.

In Gray v. Strickland, 163 Ala. 344, 50 So. 152 (1909), a civil suit for damages for false imprisonment, the Supreme Court of Alabama in affirming a judgment for the plaintiff below said:

“Under the common law the sureties upon a defendant’s bail had the unquestioned right to arrest him at pleasure and surrender him into the hands of the law, and this could be done without the issuance of process. (Citing authorities). Section 6351, Code 1907, provides for the discharge of the sureties by a surrender of the principal, and also provides for the arrest of the defendant upon a certified copy of the undertaking. Therefore, under the statute, the sureties have the right to procure their discharge by surrendering the principal at any time before a default, just as they had under the common law; the only change being that the arrest must be made upon a certified copy of the bond. The statute does not give any additional rights or powers, but really qualifies the common-law right of arrest, and this method, as prescribed by the statute, must be exclusive. It gives no additional right to arrest, and cannot be said to be in aid of or cumulative to the common-law in this particular, and, to give it any meaning or operation whatever, it must be construed as confining the right of arrest by the sureties in the manner therein required. To hold otherwise would render the statute meaningless as to the requirement in making arrests, and in effect stultify the lawmakers.”

See, also, Nicholson v. Killpatrick, 188 Ala. 258, 66 So. 8 (1914); Livingston v. Browder, 51 Ala.App. 366, 285 So.2d 923 (1973); Register v. Barton, 75 So.2d 187 (Sup.Ct. Pla. 1954); Poteete v. Olive, 527 S.W.2d 84 (Sup.Ct.Tenn.1975); Cooke v. Harper, 78 Ind.App. 267, 135 N.E. 349 (1922); Edwards v. State, 39 Okl. 605, 136 P. 577 (1913). Contra: Carr v. Sutton, 70 W.Va. 417, 74 S.E. 239 (1912).

We conclude that where the surety proposes to surrender his principal, he may do so without a warrant under the provisions of Article 17.16, V.A.C.C.P., if the principal will surrender willingly and without the use of force. Otherwise, the surety must comply with the requirements of Article 17.19, V.A.C.C.P., and secure a warrant of arrest for the principal. See Smith v. State, supra; Gray v. Strickland, supra. Under the facts of the instant case, the forcible seizure by appellant of the unwilling Scroggins, principal on the bail bond on which appellant was surety, without complying with Article 17.19, constituted an unlawful arrest and seizure, and constituted an intentional and knowing restraint of Scroggins as same is proscribed by V.T.C.A. Penal Code, Section 20.02.

The first ground of error is overruled.

In his second ground of error, appellant complains of the court’s instruction in its charge that “If a surety decides to surrender the principal he may do so if the principal will accompany him to the sheriff willingly.” The record reflects that immediately following the above the court included the following instruction: “If not, he must make the affidavit and secure a warrant of arrest.”

No error is presented. See Article 17.19, V.A.C.C.P.; Smith v. State, 47 Tex.Cr. 469, 85 S.W. 1078.

Appellant next complains in his third ground of the court’s refusal to instruct the jury that

“ . . . if it should find from the evidence or have a reasonable doubt thereof that the Defendant Joseph Austin was undertaking to surrender the accused into the custody of the Sheriff of the County where said complaining witness was being prosecuted, then you will find the Defendant not guilty.”

The court included in its charge the substance of Article 17.16, V.A.C.C.P., and gave proper instructions of when under the law as applied to the evidence in this case a warrant of arrest is necessary and when not, and what findings were necessary for a finding of guilt. The jury was then instructed that unless it “so found beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”

Error is not presented in the refusal of the court to give the instruction here requested.

Neither did the court err in refusing to instruct the jury to acquit if it found from the evidence, or had a reasonable doubt thereof, that appellant detained or moved the complaining witness “for the purpose of making a lawful arrest.” The evidence reflects without dispute, and appellant admitted on the stand and states in his brief, that he kicked in the door of the complaining witness’ house, entered with two companions, wrestled the witness to the floor, handcuffed him, put him in appellant’s car, and took him to jail, all without an arrest warrant as provided in Article 17.19, V.A.C.C.P. The issue of lawful arrest was not raised.

In his fourth ground, appellant contends the court erred in refusing to give his “Requested Instruction to the Jury No. 2,” which reads:

“It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon a written interpretation of the law contained in an opinion of a Court of Record or made by a public official charged by law with responsibility for interpreting the law in question.
“THEREFORE, if you should find from the evidence or have a reasonable doubt thereof that the Defendant JOSEPH AUSTIN acted in belief that his conduct did not constitute a crime and that he acted in reasonable reliance upon interpretation of law contained in an opinion of a Court of Record or made by a public official charged by law with responsibility for interpreting the law in question, then you will find the Defendant not guilty.”

V.T.C.A. Penal Code, Section 8.03¡ Mistake of Law, provides:

“(a) It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.
“(b) It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:
“(1) An official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or
“(2) A written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question . . ”

Initially, we note that the requested instruction misplaces the burden of proof. See V.T.C.A. Penal Code, Sec. 2.04(d), which provides:

“(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of [the] evidence.” (Emphasis added.)

However, since the request called the court’s attention to the affirmative defense, a correct instruction should have been given in the charge provided the issue was raised by evidence supporting the defense. V.T.C.A. Penal Code,- Section 2.04(c).

Appellant testified that at the time he seized Scroggins it was his opinion that the law authorized a surety to arrest his defaulting principal without warrant, and that it was customary for bail bondsmen to do so. However, the only written statement he received from any administrative agency was a notice from the Harris County district attorney’s office dated October 8, 1973, notifying him of the forfeiture and stating: “Immediate action will protect your obligation under this contract.” The nature of the “immediate action” was not stated.

Appellant does not refer us to any written interpretation of the Texas statutes or law contained either in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law which would justify any reasonable belief that his conduct did not constitute a crime. Our review of the record does not disclose any such opinion or statement. The affirmative defense provided by V.T.C.A. Penal Code, Section 8.03(b), and requested by appellant, was not raised by evidence supporting such defense, and the court did not err in refusing to include it in the jury charge. V.T.C.A. Penal Code, Section 2.04(e).

The judgment is affirmed.

Opinion approved by the Court.

      . Present Article 17.16, V.A.C.C.P. (1965).

      . This obviously is a reference to Article 321, Code Cr.Proe. 1895, presently Article 17.19, V.A.C.C.P., 1965.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Ex parte John Lamar TULLOS.
    No. 51755.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.
    James W. Minor, Austin, for appellant.
    C. Ned Granger, County Atty. and Mark Schreiber, Asst. County Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a habeas corpus proceeding in which petitioner was denied relief in the County Court at Law No. 2 of Travis County.

Petitioner was convicted for driving while intoxicated under Art. 67011 — 1, V.A. C.S., on July 29, 1974. Punishment was assessed at thirty days’ confinement and a $100.00 fine, but petitioner was placed on probation for nine months. Motion to revoke probation was filed February 19, 1975. Probation was revoked on June 13, 1975, and the period of confinement was ordered reduced to five days. Petitioner thereafter filed application for writ of habeas corpus challenging the constitutionality of his confinement and secured his release upon personal bond pending disposition of his habeas corpus action. The court below denied relief and this appeal was taken under Art. 44.34, V.A.C.C.P.

Petitioner challenges the constitutionality of his confinement under the Equal Protection Clause of the United States Constitution and under this Court’s holding in Ex parte Matthews, Tex.Cr.App., 488 S.W.2d 434. Specifically, appellant attacks the operation of Arts. 67017-1 and 67017 — 4, V.A. C.S., under which seventeen to eighteen year old males are treated differently than females of the same age, in that such males are subject to punishment including confinement in jail for driving while intoxicated, whereas females of the same age and guilty of the same offense are subject to punishment only by fine.

Petitioner was assessed punishment under Art. 67017-1, supra, which provides in part:

“Any person who drives or operates an automobile or any other motor vehicle upen any public road or highway in this State . . . while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a misdemeanor and upon conviction shall be punished by confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine or not less than Fifty ($50.00) Dollars nor more than Five Hundred ($500.00) Dollars.

Article 67017-4, supra, on the other hand, provides in part:

“Section 1. Any male minor who has passed his 14th birthday but has not reached his 17th birthday, and any female minor who has passed her 14th birthday but has not reached her 18th birthday, and who drives or operates an automobile or any other motor vehicle on any public road or highway in this state . while under the influence of intoxicating liquor . . . shall be guilty of a misdemeanor and shall be punished by a fine of not more than One Hundred Dollars ($100.00). ...”

It is apparent that males and females convicted of driving while intoxicated are treated the same under these two statutes, according to age, with the sole exception of seventeen year old offenders. Petitioner was seventeen years of age when he committed the offense of driving while intoxicated. He contends his confinement is unlawful because a female the same age committing the same unlawful acts would be subject to prosecution under Art. 67017-4, supra, and could not be punished by confinement.

Two issues are raised. The first is whether the statutory scheme embraced by these statutes impermissibly discriminates upon the basis of sex against males of the age of seventeen years. If so, we must then determine whether petitioner’s confinement under Art. 67017 — 1, supra, is lawful.

We deem Ex parte Matthews, Tex.App., 488 S.W.2d 434, to be controlling upon the first issue. In that case Art. 2338 — 1, Sec. 3, Y.A.C.S., and Art. 30, Sec. 2, Y.A.P.C., which in effect provided that a seventeen year old male offender against the laws should be tried as an adult, whereas a seventeen year old female offender could not be so tried unless the juvenile court waived jurisdiction, were held to be without rational basis in so differentiating between males and females.

The statutes before us today likewise discriminate between seventeen year old males and females without rational basis, and therefore, upon the reasoning of Ex parte Matthews, supra, create a punishment scheme that is unconstitutional under the Fourteenth Amendment to the United States Constitution and Article I, Section 3a of the Texas Constitution. We hold that all seventeen year old persons convicted of driving while intoxicated must be subject to the same range of punishment regardless of sex.

We must now address the second issue: whether the unconstitutional punishment scheme for seventeen year old DWI offenders renders petitioner’s confinement unlawful. To decide this issue we must determine whether inclusion of male seventeen year old DWI offenders in Art. 67017-1, supra, was an unconstitutional imposition of liability in the face of the lesser punishment range applicable to similarly situated females or whether the inclusion of female seventeen year old DWI offenders in Art. 67017-4, supra, was an unconstitutional exemption from punishment by confinement in the face of the greater punishment range applicable to similarly situated males. We find the legislative history of successive enactments and amendments of the statutes on this subject to be instructive in the resolution of this issue.

After earlier enactments, the Legislature in 1941 (47th Leg., p. 819, ch. 507, Sec. 1) amended Article 802, V.A.P.C. (1925), later Art. 67017 — 1, supra, to provide:

“Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a misdemeanor, and upon conviction, shall be punished by confinement in the County Jail for not less than ten (10) days nor more than two (2) years, or by a fine of not less than Fifty Dollars ($50) nor more than Five Hundred Dollars ($500), or by both such fine and imprisonment.”

In 1951 the Legislature supplemented the general driving while intoxicated statute then in force (Art. 802, supra) with a statute addressed specifically to minors. By Acts 1951, 52nd Leg., p. 786, ch. 436, it was enacted in part:

“Section 1. Any minor who has reached his or her fourteenth (14th) birthday but who has not reached his or her seventeenth (17th) birthday and who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley within the limits of an incorporated city, town, or village, in a reckless manner, at an excessive rate of speed, or while under the influence of intoxicating liquors, as hereinafter defined in this Act, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than One Dollar ($1) nor more than Fifty Dollars ($50).
“Sec. 2. . . .
“(c) Any minor who drives or operates an automobile or any other vehicle while such person is intoxicated or under the influence of intoxicating liquors shall be guilty of driving or operating a motor vehicle while under the influence of intoxicating liquors.”

This statute was designated Art. 802d, V.A. P.C., and is now designated Art. 67017-3, V.A.C.S. Two years later Art. 802, supra, was amended to read the same as Art. 67017-1 does today, quoted above, providing for confinement and a fine. Acts 1953,53rd Leg., p. 480, ch. 167, Sec. 1. Article 67017 — 4, supra, was enacted in its present language by Acts 1957, 55th Leg., p. 736, ch. 302, and designated Article 802e, V.A.P.C. That enactment also apparently intended to repeal Art. 802d, supra, now Art. 67017-3, supra. Compare Sec. 5 of the Act with its caption and see Op.Atty.Gen. 1957, No. WW — 182.

This history of legislative acts upon the subject demonstrates that the discrimination under these statutes between seventeen year old males and females today held unconstitutional first arose upon enactment of Art. 802e, V.A.P.C., in 1957. From the enactment of Art. 802d in 1951 until the enactment of Art. 802e in 1957, neither males nor females seventeen years of age were protected from confinement by the provisions of the minor DWI statute then in force, i.e., Art. 802d, supra. Under that law only minors under seventeen years of age were so protected from confinement. The effect of the 1957 change in the law, then, was to extend the protection from confinement for driving while intoxicated to seventeen year old females without likewise extending that protection to seventeen year old males. We therefore hold the 1957 enactment of Art. 802e, V.A.P.C., now designated Art. 67017-4, V.A.C.S., unconstitutionally extended to seventeen year old females without likewise extending to seventeen year old males punishment by fine only for driving while intoxicated, as distinguished from the punishment range available against such males of fine and imprisonment under Art. 802, now Art. 67011-1.

Finally, we must ascertain whether this unconstitutional character of Article 67011 — 4, supra, renders the entire statute void. Section 6 of the original Act (Acts 1957, 55th Leg., ch. 302) provided:

“If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions of [sic] applications of the Act which can be given effect without the invalid provisions or application, and to this end the provisions of this Act are declared to be severable.” (Emphasis added.)

Giving effect to this provision, we hold Article 67011-4, supra, unconstitutional only insofar as it extends to seventeen year old females. Having thereby severed the unconstitutional application from the statute, we hold petitioner’s confinement under Art. 67011-1, supra, is not unlawful.

Furthermore, under the principles applied in Delorme v. State, Tex.Cr., 488 S.W.2d 808, we may strike such words from Article 67011-4, supra, as are required to give effect to the legislative intent to the extent consistent with the constitutional principles here applied. Thereupon, Article 67011-4, supra, with the stricken words lined out, reads in relevant part as follows:

“Section 1. Any male minor who has passed his 14th birthday but has not reached his 17th birthday, and any female minor who has passed-her 14th birthday but has not readied her 18th birthday, and who drives or operates an automobile or any other motor vehicle on any public road or highway in this state while under the influence of intoxicating liquor . . . shall be guilty of a misdemeanor and shall be punished by a fine of not more than One Hundred Dollars ($100.00). ...”

The order of the court below denying relief is affirmed.

      . The remaining sentence of the article, then Art. 802, V.A.P.C., was held unconstitutional in Gilderbloom v. State, 160 Tex.Cr. 471, 272 S.W.2d 106, 109 (on motion for rehearing).

      . Acts 1923, 38th Leg., 2nd C.S., p. 56; Acts 1935, 44th Leg., 1st C.S., p. 1654, ch. 424, Sec. 1; Acts 1937, 45th Leg., p. 108, ch. 60, Sec. 1.

      . We further observe that V.T.C.A. Penal Code Sec. 8.07, as amended (Acts 1975, 64th Leg., p. 2158, ch. 693, Sec. 24, eff. Sept. 1, 1975), prohibits prosecution for this offense if committed by a person when younger than fifteen years of age, and further prohibits such prosecution for this offense committed before reaching seventeen years of age unless the juvenile court waives jurisdiction and certifies the individual for criminal prosecution.


author: ROBERTS, Judge.

text:
    Jerry Carlo MORENO, Appellant, v. The STATE of Texas, Appellee.
    No. 51769.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.

      Charles W. Tessmer and Ronald L. Gor-anson, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Jim Burnham and Bob Hinton, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated assault. The jury returned a finding of guilty on the primary offense and true on the enhancement paragraphs. The trial court assessed punishment at life.

Michael D. Edwards testified that he was the assistant manager of a grocery store. At about 6:10 p. m. on July 5, 1974, he observed two girls with big shoulder purses get out of a 1964 Chevrolet and enter the store. He observed them go up to the meat counter and put several packages in their bags. As the two girls were in the act of departing from the store without paying for the meat, Edwards took each girl by the arm and escorted them to a back room, where he left them with Barry Baker, another employee. He then went to make sure that the police had been called.

Edwards’ attention was then attracted by a disturbance; he turned and saw the appellant and the two women running down the produce aisle and out the side door of the grocery store. Edwards gave chase. The appellant produced a pistol and leveled it at Edwards. Edwards attempted to stop but slipped and fell. Edwards testified that at this point he thought the appellant fired a shot, but was not sure because he was scared. Edwards then got up and continued the chase, during which appellant again pointed the gun at Edwards. The appellant then ran into a little creekbed nearby. Edwards testified that he heard another shot go off from down in the creekbed and saw the bullet strike the dirt and the dirt fly up. Edwards then called to the appellant, saying give up, the police are on the way, whereupon the appellant threw the pistol into the creek. The water in the creek was neck deep and, although a search was conducted, the pistol was never recovered.

The above testimony was corroborated by Barry Baker, Mark Allred, and Tom Cantu, other employees of the grocery store. Baker, who was a grocery clerk at the time of the alleged offense, also testified that he was with the women in the back room where Edwards had left them after initially apprehending them. He stated that as the women were taking the meat from their bags and placing it on a table, the appellant and another man entered the back room. The other man produced a pistol and the appellant said words to the effect, “Let these girls go, we’re going.” Baker permitted the group to leave, and this was when Edwards saw them fleeing down the produce aisle.

By his first ground of error, appellant complains of the trial court’s failure to instruct the jury to disregard what appellant contends to be improper argument of the prosecutor. This occurred when the prosecutor argued that “This was nothing but a band of thieves that he’s (the appellant) directed out there and these are nothing but professional shoplifters.” The appellant’s objection was sustained, but the trial court refused to instruct the jury to disregard the argument. An exception was taken.

While we do not look favorably upon the prosecutor’s argument, we are of the opinion that no reversible error has been shown. The appellant contends that the effect of the argument was to get the jury to find the appellant guilty for collateral crimes which the prosecutor injected into the case by way of jury argument. We disagree. Cf. Cazares v. State, 488 S.W.2d 110, 112 (Tex.Cr.App.1973); Rodriquez v. State, 520 S.W.2d 778, 780 (Tex.Cr.App.1975).

By his second and third grounds of error, appellant complains of the failure of the trial court to charge the jury as to the law of assault. Although both appellant and the State have briefed the point on whether the evidence justified the instruction on the lesser included offense of assault, a decision on this matter is unnecessary because an instruction was given. However, appellant also contends that the instruction was defective in that it denominated the lesser and included offense by its punishment-classification and not by its statutory name. The law of assault was defined to the jury, but the trial court went on to charge that “if . . you have a reasonable doubt as to whether the defendant used a deadly weapon, to wit, a pistol, then you will find the defendant guilty of a class C misdemeanor.” The instruction also provided a place for the jury to return a verdict of guilty of a “class C misdemean- or.”

This is an improper way to charge the jury. It tends to confuse the jury at the guilt or innocence stage by impliedly injecting information regarding punishment and allows the prosecution additional leverage in its jury argument. The proper way to charge the jury would be to denominate the lesser included offense by its statutory name. See, Tex. Crim. Pattern Jury Charges, Sec. 22.02(a)(3), p. 213. However, this Court has repeatedly held that, although the inclusion of information regarding punishment in the charge at the guilt-innocence stage is improper, the error is not such as to require reversal. Staggs v. State, 503 S.W.2d 587, 588 (Tex.Cr.App.1974).

By his next ground of error, appellant complains that the trial court’s charge was fundamentally defective in that it allowed a conviction for an offense different than the one charged in the indictment. The indictment alleges that the accused “. . . did then and there unlawfully knowingly and intentionally use a deadly weapon, to wit: a pistol, and did then and there intentionally and knowingly threaten Michael D. Edwards with imminent bodily injury by the use of said deadly weapon.” (Emphasis added). The appellant contends that the trial court’s charge permitted a conviction if the accused “. . . intentionally or knowingly . . . ” committed the offense. We have examined the court’s charge and find that with regard to the threat of imminent bodily injury, the charge follows the language of the indictment: “intentionally and knowingly,” not as appellant contends in his brief, “intentionally or knowingly.” However, with regard to the use of the deadly weapon, the indictment alleges “knowingly and intentionally” while the court charges “intentionally or knowingly.”

We are of the opinion that the charge was not fundamentally erroneous. It followed the language of the indictment with regard to the culpable mental state in the threatening of imminent bodily injury. No objection was made to the charge with regard to the culpable mental state in the use of the deadly weapon. Nothing is presented for review. See, Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1975); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975).

In his next ground of error, appellant complains of the trial court’s inclusion of the definition of the culpable mental state of recklessness in the instructions. No error is shown. Furthermore, no objection was made to the part of the charge which included the definition of recklessness.

In his next ground of error, the appellant urges that the trial court committed fundamental error in its charge on punishment. The State sought to enhance the appellant’s punishment pursuant to Y.T. C.A., Penal Code, Sec. 12.42(d), by alleging the appellant had been finally convicted of two prior felony offenses. The trial court’s charge on punishment failed to define the law as to what punishment would be applicable if the jury found only one of the enhancement paragraphs to be true. No objection to the charge on punishment was made on this ground and the error is raised as fundamental error. Under the terms of this particular charge, the jury had to find both enhancement paragraphs to be true; otherwise, appellant would be sentenced merely upon the primary offense, without any second offender punishment being available. If both enhancement paragraphs had to be found by the jury to be true before any enhancement could occur, then this charge was more favorable to the appellant than a charge which permitted the jury to find one, but not both, of the enhancement paragraphs to be true. Therefore, no harm is shown absent an objection. Vernon’s Ann.C.C.P., Art. 36.19.

Interwoven with the above ground of error is appellant’s next ground, which contends that the trial court erred in denying the appellant the right to voir dire the jury panel as to the possible range of punishment if either of the enhancement paragraphs was found to be untrue. Any error committed by the trial court in the voir dire was rendered harmless by the more favorable jury charge given at the punishment stage. See Harper v. State, 533 S.W.2d 776 (Tex.Cr.App.1976).

Appellant’s final grounds of error present the same contention: that the trial court erred in failing to grant appellant’s motion to delete each of the enhancement paragraphs from the indictment since the offenses alleged in each paragraph are no longer felonies under the laws of the State of Texas.

The first enhancement paragraph of the indictment alleges a prior felony offense of theft of property of the value of $50 or over. Vernon’s Ann.P.C., Art. 1421 (1925), formerly provided that theft of property of the value of $50 or more was a felony offense. The 1974 Penal Code increased the value of the property to $200 or more before the offense became a felony. V.T.C.A., Penal Code, Sec. 31.03(d)(4)(A). The second enhancement paragraph of the indictment alleged a prior felony offense of possession of narcotic paraphernalia. By virtue of the old Code, such offense was a felony. Vernon’s Ann.P.C., Art. 725b, Secs. 2(e) and 23(1) (1925). Appellant states that now, by virtue of Sec. 4.07 of Art. 4476-15, V.A.C.S., the Texas Controlled Substances Act, such offense is a misdemeanor. Therefore, appellant contends, the two prior convictions used for enhancement purposes are now considered to be misdemeanors under the laws of this State and cannot be used for felony enhancement under V.T.C.A., Penal Code, Sec. 12.42.

The disposition of these grounds of error is controlled by V.T.C.A., Penal Code, Sec. 12.41, which provides that for enhancement purposes “. . . 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 . . .” (Emphasis added). Because the convictions used by the prosecution for enhancement purposes were not obtained under “this Code,” but under the former Penal Code, they are now, for enhancement purposes, considered to be felonies of the third degree because confinement in a penitentiary was affixed to each of these offenses as a possible punishment. Vernon’s Ann.P.C., Art. 1421 (1925); Vernon’s Ann.P.C., Art. 725b, Sec. 23 (1) (1925). The trial judge properly refused to delete these two enhancement paragraphs because he could have taken judicial notice of the punishment provisions applicable to these former felony offenses which, by such provisions, makes them felonies of the third degree for enhancement purposes under the present Code. 1 McCormick and Ray, Texas Law of Evidence, 2d Ed., Sec. 173, p. 187, n. 70 (and cases there cited); see also, Duren v. Houston and T.C. Ry. Co., 86 Tex. 287, 24 S.W. 258 (1893); Singleton v. State, 139 Tex.Cr.R. 28, 138 S.W.2d 100, 101 (1940).

The judgment of the trial court is affirmed.

      . At closing argument, the prosecutor stated that, “Well, if you think that’s misdemeanor conduct out there, then find him guilty of a class C misdemeanor — a man throwing a gun on a man out there trying to earn an honest living.”

      . It might be added that the State introduced a Texas State prison packet to prove each of the two prior offenses, which shows that the appel-ant did in fact spend time in the penitentiary pursuant to the convictions of the two prior offenses.


text:
    Bill WILSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51022, 51024.
    Court of Criminal Appeals of Texas.
    Sept. 20, 1976.

      John E. Gleaton, Comanche, for appellant.
    Jim D. Vollers, State’s Atty., and David S.McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are appeals from convictions for arson and aggravated assault. Punishment was assessed at five years for the offense of arson and three years for the aggravated assault. Because the issue of double jeopardy is raised, the appeals will be considered together.

We will first consider the appeal from the arson conviction.

Appellant’s only ground of error in the arson appeal is that the trial court committed error by admitting testimony of extraneous offenses into evidence. This ground of error must be overruled. Appellant’s only objection to the testimony at trial was:

“Objection, your Honor, I can’t see the relevancy of this line of questioning in this cause . . . ”

This objection is too general. It does not specifically state any reason why the evidence should have been excluded. The objection does not preserve error for review. Rich v. State, Tex.Cr.App., 510 S.W.2d 596; Dyche v. State, Tex.Cr.App., 478 S.W.2d 944.

We now consider the appeal from the conviction for aggravated assault where, in his only ground of error, appellant contends that he has been twice placed in jeopardy for the same offense and that this violates the Texas Constitution and the doctrine of carving. This assertion is founded on the following facts.

Appellant was arrested and placed in jail upon a charge of incest. He started a fire in the cell in which he was confined. During the fire, Deputy Sheriff Gorman removed appellant from his cell and proceeded to take him to a place of safety. Appellant then attacked the deputy with a pocket knife. Gorman later suffered from smoke inhalation as a result of the fire.

Two convictions were obtained against appellant from these incidents. First, he was convicted of arson causing bodily injury. V.T.C.A. Penal Code See. 28.02. The first part of this opinion addresses his appeal from that conviction. In the arson trial, testimony was given concerning appellant’s knife attack on Gorman. Expert evidence of smoke inhalation suffered by the same peace officer was also introduced at the arson trial.

Appellant was later tried for attempted capital murder of a peace officer on the basis of the knife assault, and was convicted of the lesser included offense of aggravated assault.

Appellant claims double jeopardy because he was tried twice for the same offense: the knife attack on the peace officer. This assertion is based on appellant’s position that the knifing incident was proven in the arson trial to show that bodily injury had been suffered by Gorman and to render the arson a first degree felony under Sec. 28.02, supra.

Appellant’s position is valid only if Sec. 28.02(b) authorizes punishment for arson as a first degree felony when an arsonist starts a conflagration, then through some other action during the conflagration causes an injury unrelated to the fire itself.

Section 28.02(b) states that arson is a first degree felony only when bodily injury less than death “is suffered by any person by reason of the commission of the offense.” (Emphasis added.) The Practice Commentary to this section states:

“Arson is graded a second-degree felony unless any person . . . suffers bodily injury less than death as a result of the arson.”

The language of the section and the Practice Commentary leads us to the conclusion that the offense becomes a felony of the first degree only when bodily injury less than death is sufficiently related to or a result of the fire (or explosion) caused by the arsonist. In the arson prosecution, such injury was shown by expert testimony of injury from smoke inhalation. This injury was a direct result of the fire created by appellant. The knife attack, although proven at the arson trial, was not an injury suffered “by reason of” the arson, and could not support punishment as a first degree felony.

Appellant also maintains that the State has violated the doctrine of carving. He asserts that once he was found guilty of arson causing bodily injury he could not be tried subsequently for attempted murder of a peace officer. Appellant concludes that his conviction for aggravated assault was based on the same evidence and was part of the same transaction which led to his conviction for arson. We do not agree.

From the discussion above it is clear that the evidence of the assault with a knife on Gorman and the resulting injury could not authorize or support the conviction for arson as a first degree felony.

We overrule the ground of error on double jeopardy and the doctrine of carving.

For the reasons stated, both judgments are affirmed.

      . Tex.Const. Art. I, Sec. 14.

      . V.T.C.A. Penal Code Sec. 28.02(b), provides: “(b) An offense under this section is a felony of the second degree, unless bodily injury less than death is suffered by any person by reason of the commission of the offense, in which event it is a felony of the first degree.”

      . “. . the prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once.” 1 Branch’s Ann.P.C., 2nd Ed., Sec. 654, p. 625.


author: ONION, Presiding Judge.

text:
    Marcia McKITTRICK, Appellant, v. The STATE of Texas, Appellee.
    No. 51364.
    Court of Criminal Appeals of Texas.
    Sept. 20, 1976.
    Charles L. Caperton and Kenneth E. La-bowitz, Dallas, for appellant.
    Carol S. Vance, Dist. Atty. and Phyllis Bell, Robert C. Bennett, Jr., Asst. Dist. At-tys., Houston and Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder with malice under the former Penal Code. Punishment was assessed in a bench trial at ten (10) years’ confinement in the Department of Corrections.

On original submission the appeal was abated because the trial court failed to file its findings of facts and conclusions of law regarding the voluntariness of the appellant’s confession. See McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976). There, it was held that the requirements of Article 38.22, Vernon’s Ann.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), requiring the trial court to make such findings must be followed whether the defendant objects to the failure of the court to follow the statutory duty or not. See Hester v. State, 535 S.W.2d 354 (Tex.Cr.App.1976). A supplemental transcription has now been filed reflecting such findings and conclusions. The appeal has now been reinstated.

The indictment returned on April 25, 1973, alleged that on or about September 24, 1972, Bobby Vandiver and the appellant McKittrick “did with malice aforethought kill John Hill by shooting him with a gun.” Proof showed that Hill was a medical doctor.

The sufficiency of the evidence to sustain the conviction is not challenged. In appellant’s sole ground of error she states:

“The trial court erred in denying appellant’s motion to suppress her confession of September 25, 1973, because said confession was coerced and involuntary; the circumstances under which the confession was obtained reveal that her protected rights were violated in its production.”

The evidence presented during the hearing on the pre-trial motion to suppress was voluminous and contains an exhaustive examination into all aspects of the events leading to appellant’s confession.

The record reflects that the indictment was returned on April 25,1973. On May 14, 1973, the appellant, accompanied by her attorney, Charles Caperton of Dallas, posted bond. On May 25, 1973, the appellant was arraigned. Her counsel was present.

Detective J. W. Carpenter of the Houston City Police Department, Homicide Division, testified he had been active in the investigation of the shooting death of Dr. John Hill. Carpenter related he was present at the arraignment of the appellant and that subsequently on a date not made clear by the record he was contacted by Detective Hargraves of Lubbock, where the appellant had been arrested for prostitution, and who stated appellant wanted to talk to Carpenter. Appellant told Carpenter she wanted to come to Houston to discuss the murder indictment against her, and Carpenter arranged for the Lubbock police to put her on a plane for Houston. Carpenter waited for her, and when she failed to arrive as scheduled, he checked and discovered she had deplaned at a stop in Austin.

After this event, appellant’s counsel, Ca-perton, filed a motion for a temporary restraining order and permanent injunction to enjoin Carpenter and all other peace officers from contacting or harassing the appellant. Carpenter later learned the matter was moot when neither the appellant nor her attorney appeared for a hearing on the said motion.

On September 24,1973, at 7 p. m. Carpenter received a telephone call from a Dallas city detective. When he returned the call, he was informed that appellant was in custody in Dallas on several charges and wanted to talk with Carpenter about a murder case. Carpenter talked with the appellant, who said she wanted to “get her business straight” about the John Hill murder case, and that she was sincere about it this time, and her bondsman “had gone off her bond” in the murder case. When Carpenter inquired about her lawyer, appellant informed him Caperton didn’t represent her any more and had told her to do anything she wanted to do. Carpenter told her that if there was an outstanding capias for her he would come to Dallas to pick her up. Carpenter then learned that the bondsman “had gone off the bond” and there was an outstanding capias. He then called the appellant and told her he was on his way to Dallas. She requested a change of clothes, and Carpenter obtained some from his wife and then picked up his partner, Detective Gamino, and arrived in Dallas between 11:30 p. m. and midnight. They secured appellant’s release in about an hour, and Carpenter then asked if she had been given her warnings, and she replied she had been before a judge, and in response to Carpenter’s question told him she knew she didn’t have to talk to them. Around 1 a. m. they stopped in a gas station and the appellant changed clothes. Appellant told Carpenter she was “dope sick,” and he observed she was having chills and was in some discomfort. About 3 or 3:30 a. m. they stopped at a truck stop and all had breakfast, and Carpenter said he gave her two aspirins for her discomfort when they had coffee. He recalled that on the trip she asked about getting some methadone, and he replied he didn’t know, he would have to check on what was available when they got to Houston. Carpenter revealed they reached Houston about daylight, and the “case wasn’t discussed on the way back to any extent.” They arrived at the Homicide Division, and appellant went to the restroom with a female detective and had coffee, and they then waited “for the first judge to get there.”

It appears that at 9:35 a. m. the appellant was taken before a magistrate, Judge Mike Breen, and Carpenter testified the Judge gave her the warnings found on the face of the subsequent confession, which are in accordance with Articles 15.17 and 38.22, Vernon’s Ann.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Then at 9:50 a. m. Carpenter began to interrogate the appellant about the charge against her. At 11:20 a. m. appellant signed the typed statement in the presence of witnesses after she had read the confession, including the warnings thereon.

Carpenter testified he had no trouble communicating with appellant while taking her confession, that she was an intelligent girl, communicated in an intelligible manner, and was able to understand what she was revealing and knew “what was going on around her.” He related she had her “wits about her,” was not crying or emotionally distressed. He stated that while she had complained of chills, discomfort, etc., on the trip from Dallas and stated she felt bad, she also stated when asked if she wanted to give a confession that she felt “like going ahead” and asked and was given coffee.

Carpenter testified that he made no threats or promises to her, nor did he use coercion to obtain her written statement. He told her he could not help her in connection with any of the charges in Dallas County, but would talk to the Harris County District Attorney’s office to see if they would make an offer as to her testimony in the murder case. He testified that she had not asked for nor was she denied food, rest, sleep, etc., that appellant’s confession had been freely and voluntarily given.

Carpenter later testified that after the confession was taken he took the appellant to the Repose Clinic at St. Joseph’s Hospital, and the appellant talked with a nun and a doctor. The doctor then decided she was not eligible for methadone, but did give her three prescriptions without any examination. The prescriptions were lomotil for diarrhea, amytal as a sedative and valium. Carpenter paid to have the first two prescriptions filled, but not the third as the appellant stated she would not take valium. He was reimbursed by the police department.

Lillian Duke, registered nurse at the Harris County Jail, called by the appellant, testified that the appellant came into her custody at 2:30 p. m. on September 25,1973, after being booked into jail at 1:45 p. m. and having taken two capsules of sodium amytal at 2:15 p. m. At the time appellant was semi-conscious, was having difficulty with her respiration, and seemed to have had an overdose of drugs. There were fresh needle marks on her arm. She was given artificial respiration and liquids. The nurse stated that the appellant had come to jail with a bottle of 98 sodium amytals, the prescription having called for 100 capsules; that amytal was a barbiturate which affects the central nervous system, and would account for appellant’s semi-conscious condition. It was related that after treatment appellant slept for 24 hours.

Robert Walker, administrator for the medical division of the Harris County Sheriff’s department, also called by the defense, stated he saw the appellant a few hours after admission into the jail and described her as being in a semi-comatose state.

Testifying in her own behalf, the appellant stated after the arraignment on May 25, 1973, Assistant District Attorney Bob Bennett approached her and asked if she knew what immunity meant and offered her immunity for her testimony in the case and mentioned something about paying a month’s rent on her apartment. She related that Caperton, her attorney, told her not to talk “to them,” and she didn’t. She stated the next day as she was leaving Houston for West Texas two men not in uniform grabbed her at the airport and said they were Texas Rangers. She struggled, lost her plane ticket, but retained her purse, ran up an escalator, and took a taxi cab and made her escape.

She testified she had been arrested in Lubbock about June 12th for prostitution, paid her fine and had gone back to her motel when two hours later at night Detectives Hargraves and Cooper arrived and took her back to the Lubbock Police Department. There they mentioned Carpenter’s name and tried to persuade her to go to Houston. She told them she was on bond and had an attorney, but they refused to permit her to call Caperton, telling her they didn’t trust him, that Caperton was “in league” with Percy Foreman, who was paying Caperton to get her the electric chair and get Foreman’s client off. The appellant admitted that the next morning she talked to Detective Carpenter over the telephone, that Carpenter talked to her about immunity, told her not to contact Caperton as he (Carpenter) didn’t trust Caperton, that if she cooperated she wouldn’t need a lawyer. She stated she agreed to talk “to them” if they were going to persist in picking her up, but that she wanted Caperton present when they did.

The appellant then related that afternoon the Lubbock officers placed her on a plane for Houston after inquiring if the flight was a direct flight to Houston, not realizing there is a difference between a non-stop flight and a direct flight. When the plane stopped in Austin, she got off the plane and called her lawyer in Dallas. Thereafter, the earlier described motion for restraining order, etc., was filed.

Appellant testified she was again arrested in Dallas on September 21, 1973, on various charges (auto theft, theft over $50, forgery, passing worthless checks) and that night she called Caperton. She revealed that at the time she had been a narcotic addict using heroin since December, 1972, and was using six to eight grams a day. She related that as soon as she was booked in Dallas she was told that she was wanted in Houston as her bond had been forfeited, that Dallas officers told her she was “definitely going to talk to Houston,” and if she didn’t, “they were going to do something to me,” which she interpreted as a threat of physical harm. She had no recollection of ever having talked to Carpenter from Dallas and denied telling him Caperton didn’t represent her any longer. She related that Houston officers, Carpenter and Gamino, picked her up in Dallas and took her to Houston, that on the way Carpenter gave her a pill which was not aspirin, but was smaller and very bitter, that it eased her withdrawal pains, and she just “blacked out.” She admitted that she signed the confession in question, but stated that she did so because Carpenter promised her narcotics if she did and also promised her immunity. She stated she asked to contact Caperton, but was told that if she did she would be an old lady before she ever saw her son again. She did remember taking a polygraph examination after the confession was taken. She vaguely recalled going to the St. Joseph’s Hospital, but did recall Carpenter putting two blue amytals in her mouth and that she swallowed the same without water. She could not explain why the jail records showed she had taken two pills at 2:15 p. m. on September 25, 1973, unless they gave her additional pills at that time.

Dr. Stan Shoemaker, a physician at the Parkland Hospital in Dallas, testified for the defense that he examined the appellant on September 22, 1973, at the hospital upon a referral from the Dallas County Jail. He found that she had a urinary tract infection which could be accompanied by chills. He prescribed an antibiotic drug. He learned from the appellant she was a narcotic addict and that she had taken her last “fix” at 4:30 p. m. on September 21st. As she appeared nervous and anxious, he gave instructions to the police officers for general morphine support therapy for withdrawal and wrote a prescription for a minor sedative, librium. Dr. Shoemaker testified that for a person taking six to eight grams of heroin a day the peak withdrawal period occurs between 48 and 72 hours. If the last dose was taken on September 21st, then the peak would have been reached between 4:30 p. m. on September 23rd and 4:30 p. m. on September 24th, and the peak would have passed by 9 a. m. on September 25th, and the subject would then be on the down side of the withdrawal period, although symptoms of the withdrawal can continue for seven to ten days.

There was also introduced into evidence an affidavit executed by the appellant in the Dallas County Jail before a notary public on September 24, 1973, to the effect that she was represented by Caperton, recounted her Lubbock experience, restated her fear that Houston officers would again attempt to interrogate her since she was no longer on bond and since Dallas officers had already indicated Houston officers wanted to talk to her.

Officer Gamino, called in rebuttal, testified that Carpenter did not give the appellant any type of drugs on the trip from Dallas but may have given her aspirin as Carpenter used aspirin himself. He testified that she did not pass out or become unconscious on the trip, though she may have fallen asleep for a while, but she did not seem disoriented or confused, that while she appeared tired or sleepy, she did not appear to be suffering any discomfort.

As earlier noted, the findings of facts and conclusions of law by the trial court are before us. Such instrument reads in part as follows:

“In support of the Court’s action, the Court finds the following facts:
“1. That the defendant was arrested September 21,1973 at about 5:30 p. m. by the Dallas Police Department officers for the offenses of auto theft, felony theft, forgery and passing worthless checks. The defendant subsequently was convicted of these offenses and sentenced to the Texas Department of Corrections. The records of the Dallas Police Department indicate that at 6:30 p. m. on September 21, 1973, a warrant for the arrest of the defendant existed in Harris County for the offense of murder.
“2. During the evening shortly after her arrest, the defendant was allowed to call an attorney.
“3. On September 22, 1973, at about 9:40 a. m., the defendant was taken to Dr. Stan Shoemaker at Parkland Hospital. The defendant was diagnosed as having a urinary infection. All vital signs were normal. The only signs of drug addiction were the verbal communications by the defendant and she appeared to be nervous and anxious. The defendant was released after the examination.
“4. The defendant remained in the Dallas jail until the early morning hours of September 25, 1973; at which time, she was released to Detective Carpenter and Detective Gamino of the Houston Police Department.
“5. Detective Carpenter first became aware that the defendant wanted to talk to him about the killing of Dr. Hill when he was contacted at home on the evening of September 24, 1973 between 6:00 and 7:00 o’clock p. m. Detective Carpenter then returned the call to Dallas; at which time, he talked to the defendant who told him she wanted to come to Houston and straighten out her situation in the murder case. Detective Carpenter inquired as to her situation regarding her attorney. The defendant indicated that she had talked to her lawyer and that she could do as she pleases. She then told Detective Carpenter that she was sincere about coming to Houston to talk about the facts concerning the murder. Detective Carpenter then checked to verify the existence of an outstanding warrant and then called Dallas back and told the defendant that he would come to Dallas and bring her back to Houston if that is what she wanted. The defendant asked Detective Carpenter to bring her some clothes when he came to pick her up.
“6. Detective Carpenter and Detective Gamino arrived in Dallas between 11:30 and midnight and made arrangements to bring the defendant to Houston. When Detective Carpenter met the defendant, she said she was re'ady to go and did voluntarily leave Dallas with Detectives Carpenter and Gamino.
“7. During the trip to Houston, the defendant was allowed to change clothes and was allowed to eat breakfast. The only discomfort of the defendant evident to Detective Carpenter was that she had chills and complained of stomach cramps. Detective Carpenter gave the defendant two aspirins on the way back to Houston.
“8. During the trip to Houston, Detective Carpenter and the defendant discussed the fact that she had been before a judge in Dallas and defendant was aware that she did not have to talk to Detective Carpenter.
“9. After Detectives Carpenter and Gamino and the defendant arrived in Houston, the defendant was taken to the Homicide office where she was allowed to use the restroom and was given coffee to drink.
“10. Later that morning at 9:35 o’clock a. m., the defendant was taken before Houston magistrate Judge Mike Breen, who informed the defendant of the accusation against her, that she has the right to retain counsel, that she has the right tó have an attorney present during her interview with peace officers or attorneys representing the state, that she has the right to terminate the interview at any time, that she has the right to request appointment of counsel if she cannot afford counsel, that she has a right to an examining trial, that she has the right to remain silent and that she is not required to make any statement, and any statement she makes may be and probably will be used against her.
“11. That, thereafter, the defendant gave a confession and signed it in the presence of witnesses after the same was reduced to writing and the defendant had been given an opportunity to and did read the same.
“12. That defendant was then given a polygraph examination concerning the confession.
“13. That the defendant at no time requested counsel to advise her from the time she left Dallas until the statement was completed.
“14. That even though the defendant was experiencing discomfort from the last stages of withdrawal, she was not under the influence of any drugs or the promise of any drugs which led to her giving the confession.
“15. That the defendant is a mature and intelligent individual; and there was no evidence of any over-reaching because of any different education-mental level between the officer and the defendant. The confession was not secured as the result of any promises made the defendant by the officer taking the confession or any other person.
“The Court bases its findings in this case after carefully examining the demeanor and the manner in which each witness testified. The Court paid particular attention to the defendant’s testimony and noticed that on the critical issues she only responded to suggestive and leading questions. The Court further noticed that her testimony on cross examination was totally illogical in comparison with her testimony on direct examination and that even she became aware of this conflict and then tried to change her testimony to corroborate what she had said during direct examination.
“The Court therefore finds, from the above facts, that the statement marked State’s Exhibit No. 1 was given by the defendant, _ _ ., freely and voluntarily without threats, improper influence, any promises, persuasion or compulsion after she knowingly and intelligently waived the presence of counsel and her right to remain silent; and that the defendant was alert and mentally competent and was not induced by the influence of any drugs at the time the confession was made; that these findings of fact are made by the Court as a result of the hearing held in the absence of a jury and prior to any further proceedings in this cause.”

We do not understand the appellant to complain that the warnings given by the magistrate prior to the confession or those on the face of the confession form do not conform with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or Article 38.22, Vernon’s Ann.C.C.P. It is appellant’s complaint that the evidence is insufficient to show an affirmative waiver of the right to counsel and the privilege against self-incrimination as required by the Miranda decision and the provisions of Article 38.22, supra.

Miranda, of course, teaches that a heavy burden rests upon the prosecution to prove that a person in custody “knowingly and intelligently” waived his privilege against self-incrimination and his right to retained or appointed counsel, 384 U.S. at 475, 86 S.Ct. at 1628.

The determination of whether there has been such an intelligent waiver must depend upon the particular facts in each case, including the background, experience, and conduct of the accused. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Thus, courts must approach the question of waiver in each case on an ad hoc basis. Narro v. United States, 370 F.2d 329, 330 (5th Cir.1966). See also McCandless v. State, 425 S.W.2d 636, 640 (Tex.Cr.App.1968).

We turn now to an examination of the facts and circumstances in the instant case to determine if they sufficiently demonstrate a “knowing and voluntary” waiver of the right to counsel and the privilege against self-incrimination.

It appears that appellant had the same retained counsel before and after the confession. This court, however, has never interpreted Miranda to mean that once counsel has been requested or obtained the same forever bars law enforcement officers from interrogating an accused provided the prosecution sustains its heavy burden of showing an affirmative waiver. And this is particularly true where the accused initiates the conversation with the officers. See, e. g., Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974); Caraway v. State, 489 S.W.2d 106 (Tex.Cr.App.1973); Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972); Elliott v. State, 444 S.W.2d 914 (Tex.Cr.App.1969); Hill v. State, 429 S.W.2d 481 (Tex.Cr.App.1968); Gunter v. State, 421 S.W.2d 657 (Tex.Cr.App.1967).

The face of the confession reflects a warning by a magistrate shortly before the confession was given and further reflects the appellant was warned:

“(1) Of the accusations made against me and of any affidavit filed; (2) That I have the right to retain counsel; (3) That I have the right to have an attorney present during my interview with peace officers or attorneys representing the State; (4) That I have the right to terminate the interview at any time; (5) That I have the right to request appointment of counsel if I cannot afford counsel; (6) That I have the right to an examining trial; (7) That I have the right to remain silent and that I am not required to make any statement, and any statement I make may be and probably will be used against me.
“I fully understand all of these rights; and, desiring to waive all of them, I hereby make the following voluntary statement to Jerry Carpenter.”

The evidence shows that this confession was read and signed by the then 23 year old appellant, who had a prior criminal record and some experience with peace officers.

Such statements in a confession are factors to be considered in determining if the accused affirmatively waived his or her rights but is not determinative thereof. McCandless v. State, 425 S.W.2d 636, 640 (Tex.Cr.App.1968); Torres v. State, 422 S.W.2d 741 (Tex.Cr.App.1968) (Concurring Opinion); United States v. Hayes, 385 F.2d 375 (4th Cir.1967). See also Encina v. State, 471 S.W.2d 384 (Tex.Cr.App.1971); Brookins v. State, 499 S.W.2d 320 (Tex.Cr.App.1973).

Here, we have more than a boilerplate statement in the confession. When Carpenter returned the call he had received from Dallas, he talked to the appellant, who told him she wanted to get “her business straight” in Houston and was sincere about it. Upon inquiry, she told Carpenter that Caperton no longer represented her as her lawyer and had told her to do anything she wanted to do. A short time after she had been warned of her rights by the magistrate she told Carpenter she felt “like going ahead” when asked if she wanted to give a confession. We conclude from the totality of the circumstances that the prosecution discharged its burden of showing an affirmative waiver of the right to counsel.

With regard to the waiver of the privilege against, self-incrimination, in addition to all of the above, it is noted that when they left Dallas the appellant told Carpenter she had been before a judge and knew that she didn’t have to talk to him. After receiving the magistrate’s warnings, she agreed to give a confession, and at no time during the interrogation did she state she wished to remain silent or desired to terminate the questioning. We conclude that under the totality of the circumstances the prosecution demonstrated an affirmative waiver of the privilege of self-incrimination. See and cf. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Of course, appellant’s own testimony contradicted some of the testimony of the State’s witnesses, but it is clear that where the facts are in dispute in a separate hearing on the voluntariness and admissibility of a confession, be it a hearing on a motion to suppress or otherwise, the trial judge is the trier of the facts and can accept or reject the testimony of the witnesses, including a defendant, in determining the issues before him. Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975); Horne v. State, 506 S.W.2d 596 (Tex.Cr.App.1974); Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974); Gutierrez v. State, 502 S.W.2d 746 (Tex.Cr.App.1973). We conclude the trial court was supported by sufficient evidence in holding that there were affirmative waivers.

Appellant urges that her physical condition and state of mind at the time would show the confession was involuntary and that the waivers, if made, were not “knowing and intelligent” waivers. It is true that appellant testified she was addicted to heroin, and this is supported in some degree by the fact she had fresh needle marks on her arm. She did not testify as to when she had had her last “fix,” but Dr. Shoemaker testified she told him that on September 22nd she had taken a “fix” at 4:30 p. m. on September 21st, that if she was taking six or eight grams she would reach the peak of her withdrawal period between 48 and 72 hours and would have been on the down side of her withdrawal at 9:50 a. m. on September 25th, at the time of the confession. This is supported by the fact that the doctor at the Repose.Clinic would not give her methadone shortly after the confession was given. It is true she testified she was having chills and stomach cramps on the trip to Houston and Carpenter thought she was having chills. It is also true that Dr. Shoemaker testified chills often accompanied the urinary tract infection for which he treated her. The appellant also claimed Carpenter gave her a bitter pill, smaller than aspirin, and she blacked out. This was contradicted by Officers Carpenter, and Gamino. Gamino testified she was not given any drugs and that she was able to sleep part of the time on the trip to Houston, that she was never confused or disoriented. Carpenter testified that at the time of the confession she had her “wits about her,” etc. We cannot conclude her condition was such as to prevent her waivers from being “knowing and intelligent.”

Appellant did testify that Carpenter promised her immunity and narcotics if she would confess, but this was denied by Carpenter and the trial court found no promises were made. The evidence supports such finding. Carpenter told her that he could do nothing about the charges in Dallas, but would talk to the Harris County District Attorney’s office to see if they were interested in an offer for her testimony. The appellant may have mistakenly construed this as an offer of immunity, which it was not. Carpenter did testify that appellant inquired, on the trip to Houston, about methadone and he told her that he was not sure how methadone was dispensed, but he would check when he got to Houston.

We conclude from the totality of the circumstances that the confession was freely and voluntarily given by appellant after she had been fully apprised of her constitutional rights and had affirmatively waived these rights. Encina v. State, supra. The court did not err in overruling the motion to suppress.

The judgment is affirmed.

      . It appears the date in question was about June 12, 1973.

      . See and cf. Haney v. State, (Tex.Cr.App., # 51,733, delivered July 14, 1976).

      . At the time of the hearing on the motion to suppress, appellant related she had been convicted of a number of these charges and was serving time in the Department of Corrections.

      . She stated that Carpenter told her before the confession he would see that she got immunity, but that after the confession was signed he told her that if he couldn’t get her immunity he would see she got probation.


text:
    John Edward JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51778.
    Court of Criminal Appeals of Texas.
    Sept. 20, 1976.

      Joel W. Cantrick, Austin (Court-appointed on appeal), for appellant.
    Curtis L. Owen, Dist. Atty., and Frank McClendon, III, Asst. Dist. Atty., Tyler, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. The jury assessed punishment at fifteen (15) years’ confinement in the Texas Department of Corrections.

By his first ground of error, appellant challenges the sufficiency of the evidence. More specifically, appellant contends that there is insufficient evidence to show that he was acting “in the course of committing theft.” Furthermore, appellant contends that the evidence was insufficient to show an intent to obtain or maintain control of the property. For a conviction of aggravated robbery to be sustained, both elements must be proved. Earl v. State, 514 S.W.2d 273, 274 (Tex.Cr.App.1974).

We preface our summary of the evidence by noting that a charge on circumstantial evidence and an instruction on the law of principals was given.

The record reflects that on December 1, 1974, appellant and three companions, all dressed alike, approached a Safeway store located in Tyler. Appellant and one companion, Michael DeWayne Hawkins, entered the store. Because of a prior telephone call alerting the Tyler Police, officers had been dispatched and were waiting at various locations around the store. One officer testified that he observed Hawkins holding a shotgun and standing in front of the manager’s booth in the store. After commanding Hawkins to drop his gun, the officer chased Hawkins down an aisle to the back of the store. Hawkins was later arrested at the back of the store. While the pursuit and arrest of Hawkins were occurring, the appellant was observed by another officer in front of one of the store aisles. This officer testified that the appellant had a pistol in his hand and that customers near the appellant were getting underneath the counters. After this observation by the officer, he ran inside the store and shouted at the appellant to stop. Appellant then began to run down the aisle and when he turned and pointed his pistol at the officer, the officer shot and wounded him. Appellant was then arrested.

The manager of the store testified that while at the back of the store he was in fear of imminent bodily injury when Hawkins pointed the shotgun at him prior to Hawkins’ arrest. The manager further testified that there was approximately $4,200 in the store.

Since there was no evidence of a demand, taking or attempted taking of money or other property by the appellant or Hawkins, the appellant contends that the evidence is insufficient to show that he acted in the course of committing theft or had the intent to obtain or maintain control over any property.

In Long v. State, 47 Tex.Cr.R. 296, 83 S.W. 384 (1904), the defendant approached two individuals, pointed his gun at them and said, “Halt! Throw up your hands!” This Court held that this was sufficient evidence to allow the jury to find that the defendant had the specific intent to rob.

In Gerzin v. State, 447 S.W.2d 925 (Tex.Cr.App.1969), cert. denied, 398 U.S. 912, 90 S.Ct. 1710, 26 L.Ed.2d 73 (1970), the defendant walked into a liquor store, pointed his shotgun at the attendant and stated, “I guess you know what this means.” We held that there were sufficient facts and circumstances for the jury to conclude that the defendant had the intent to rob.

In the instant case, the appellant was observed with a gun in his hand while customers around him were trying to get underneath the counters. His companion Hawkins pointed a gun at the manager in the back of the store, after apparently realizing the mission had been thwarted, and stated, “Where are the keys to this damn back door.” While neither appellant nor his companion actually demanded the money from the manager, we conclude that there was sufficient evidence to allow the jury to find that they were acting with intent to obtain control of the property within the meaning of V.T.C.A., Penal Code, Sec. 29.-02(a). A verbal demand is not the talisman of an intent to steal. Such intent may also be inferred from actions or conduct. Banks v. State, 471 S.W.2d 811, 812 (Tex.Cr.App.1971).

We are also of the opinion that appellant was acting in the course of committing theft. V.T.C.A., Penal Code, Sec. 29.01(1) defines this to mean “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” (Emphasis added). Appellant’s companion Hawkins’ action in pointing the gun at the manager and stating, “Where are the keys to this damn back door,” along with the other evidence, was sufficient to allow the jury under the charge on circumstantial evidence and the instruction on the law of principals to find that appellant acted in the course of committing theft.

Appellant’s first ground of error is overruled.

By his second ground of error, appellant complains of the trial court’s failure to charge on the lesser included offense of criminal attempt.

As we have stated, the evidence was sufficient to allow the jury to find that appellant was acting in the course of committing theft and with intent to obtain or maintain control of the property. We further noted that the manager of the store testified that he was in fear of imminent bodily injury when appellant’s companion Hawkins pointed the gun at him. At this point the offense of aggravated robbery was committed. The fact that the money was not actually taken does not necessitate a charge on attempted aggravated robbery. The offense of aggravated robbery does not require as an element thereof that the property sought actually be obtained. It is sufficient to show that the defendant acts in the course of committing theft as defined in V.T.C.A., Penal Code, Section 29.02(a). Watts v. State, 516 S.W.2d 414, 415 (Tex.Cr.App.1974). Earl v. State, supra.

Appellant’s second ground of error is overruled.

Appellant’s pro se brief has been carefully examined. The grounds of error there urged are without merit and overruled.

The judgment of the trial court is affirmed.

      . This is a companion case to Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App.1976).

      . Since this was a prosecution under the new Penal Code, the instruction should have been drafted in the terms of V.T.C.A., Penal Code, Secs. 7.01, 7.02, rather than under the old law of principals. However, this was not made the subject of an objection at trial or a ground of error on appeal. The error, if any, was waived.


author: DAVIS, Commissioner.

text:
    Ex parte Charlie WOODARD.
    No. 52854.
    Court of Criminal Appeals of Texas.
    Sept. 20, 1976.

      Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction writ of habeas corpus brought under the provisions of Article 11.07, V.A.C.C.P., by the petitioner, an inmate of the Texas Department of Corrections.

The petitioner was convicted for the offense of burglary on March 2,1954. Pursuant to the provisions of Article 63, V.A.P.C., the punishment was enhanced by two prior non-capital convictions and punishment was set at life.

One of the prior convictions used for the purpose of enhancement of punishment was a conviction for the felony offense of driving a motor vehicle on a public highway while intoxicated. On the habeas corpus hearing, the trial court found that the misdemeanor conviction for driving while intoxicated, alleged and utilized in obtaining the felony driving while intoxicated conviction, was obtained while the petitioner was not represented by counsel, was indigent, and had not made a knowing and intelligent waiver of his constitutional right to counsel. The trial court’s findings are supported by the record. Because of the deprivation of the constitutional right to counsel, the misdemeanor conviction is void. See Ex parte Webster, Tex.Cr.App., 497 S.W.2d 305; Walker v. State, Tex.Cr.App., 486 S.W.2d 330; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. The right to counsel in a misdemeanor case has been held to be retroactive. Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373.

Proof of the misdemeanor conviction being an essential element of the felony driving while intoxicated conviction, it follows that the felony conviction is also void. The petitioner’s conviction under the provisions of Article 63, V.A.P.C. cannot be permitted to stand since a prior void felony conviction was utilized.

The other prior conviction relied on for the purpose of enhancement was a conviction for felony embezzlement. Assuming such conviction was an offense of like nature to the primary offense, petitioner’s punishment would be twelve years under Article 62, V.A.P.C. Petitioner has been incarcerated on this charge since 1954. Since he has clearly served in excess of the maximum time, his release from the Texas Department of Corrections is in order.

The writ is granted and petitioner’s release ordered.

Opinion approved by the Court.


author: OSBORN, Justice.

text:
    NORTH EAST INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. NORTH EAST FEDERATION OF TEACHERS, LOCAL # 3410, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, et al., Appellees.
    No. 6535.
    Court of Civil Appeals of Texas, El Paso.
    July 14, 1976.
    Foster, Lewis, Langley, Gardner & Ba-nack, Inc., Ralph G. Langley, Emerson Ba-nack, Jr., William T. Armstrong, III, San Antonio, for appellants.
    Mary Patricia Robards, San Antonio, for appellees.
   OPINION

OSBORN, Justice.

This is an appeal from the granting of a temporary injunction, now superseded, which enjoined the School District and certain administrators from refusing to allow the distribution to teachers within the School District of a circular concerning suspending disruptive students from class. We reverse the judgment of the trial Court, and the injunction is dissolved.

The only two witnesses to testify at the injunction hearing were Gerald C. Hastings, a teacher at Churchill High School and the president of the North East Federation of Teachers, and Ivan W. Fitzwater, Superintendent of Schools for the North East Independent School District. Mr. Hastings identified a letter he had written to a School Principal on March 17,1975, requesting permission to distribute Union materials at Churchill High School in the hallways before and after class, and in the teachers’ lounge and dining room during school hours. The Union agreed to submit a copy of all materials to the Principal prior to distribution. The following day he received an authorization for distribution following the guidelines set forth in his letter. Thereafter, some eight or nine pamphlets and newsletters were distributed without difficulty. On October 7, 1975, Mr. Hastings wrote to the High School Principal requesting a time and place to distribute the flyer which appears as an exhibit to this Opinion. The next day he was denied permission to distribute the publication “ * * on the Winston Churchill Campus.”

On October 9, 1975, Mr. Hastings appeared before the School Board at a regular meeting and asked that they adopt a policy of free speech with no censorship of Union materials. He gave the Board a copy of the flyer which had been rejected for distribution on the School campus. The request was taken under advisement. He testified at the injunction hearing that the need for the flyer did not create any emergency.

Mr. Fitzwater testified that there was no request for Board action on this particular flyer. It was his opinion that the proposed method of distribution was such that the flyer could have fallen into the hands of students, and in such a case, it would have a disruptive effect on the operation of the School. Thus, he was of the opinion that it should not be distributed on the campus. He also noted that Mr. Hastings’ policy request was not on the agenda, but that the request was made before the Board at a time provided for citizens’ discussion.

One day after the Board took the policy request under advisement, this suit was filed and seven days later the hearing was held in District Court.

It seems worth noting that this School Board, which denied the right to distribute an “underground” newspaper and was castigated for such conduct in Shanley v. Northeast Independent School District, Bexar County, Texas, 462 F.2d 960 (5th Cir.1972), because of its failure to follow the rules in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), now finds itself with a problem of disruptive students, the very thing Mr. Justice Black so ably warned about in his dissenting opinion in the Tinker case, namely “ * * * the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.”

This time the teachers, who want to distribute material to complain about disruptive students, are unwilling to abide by the administrators’ determination that their materials will cause the very thing the teachers dislike, i. e. disruptive students. School Boards and their administrators everywhere must be amazed by those decisions which regulate the use of armbands, freedom buttons, hairstyles, and underground newspapers, after a professed belief and assertion that “courts should not interfere with the day-to-day operations of schools.”

The Appellants complain in their first point of error that the granting of the temporary injunction did not have the effect of maintaining the status quo between the parties, but that instead it destroyed that relationship. Prior to the injunction, the Union had always submitted and obtained administration approval to distribute its materials. Mr. Hastings testified that the purpose of his letter of October 7th was to ask for permission to distribute the flyer. The Court’s injunction permits distribution without administration approval, and thus changes the status quo.

Of even greater consequence is the fact that the Appellees at a temporary injunction hearing obtained full relief and no issue remains for a final hearing. In Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953), the Court said:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. * * * ”

Thus, in this case the Appellees obtained full relief, the right to distribute the flyer, and did so under a requirement of only showing a probable right and a probable injury, without the necessity of proof that they will finally prevail in the litigation. But a final hearing would be moot once distribution occurs under the temporary injunction. It was never intended that a party obtain full relief at a temporary injunction hearing where the burden is substantially different from that at a final hearing on a permanent injunction. Houston Belt & Terminal Railway Company v. Texas and New Orleans Railroad Company, 155 Tex. 407, 289 S.W.2d 217 (1956). The first point is sustained.

We also sustain the second point of error because the trial Court erred in granting the injunction before Appellees had exhausted their administrative remedies and pursued to a final determination the administrative appeals available to them. McIntyre v. Hoblinski, 333 S.W.2d 697 (Tex.Civ. App.—Waco 1960, writ ref’d); Ector County Independent School District v. Hopkins, 518 S.W.2d 576 (Tex.Civ.App.—El Paso 1974, no writ). Having elected to submit the issue to the School Board for its decision, that appeal must be exhausted and completed before one resorts to the courts for any additional relief. Cook v. Neill, 163 Tex. 49, 352 S.W.2d 258 (1961). The fact that the Board did not act on the same day the request was made does not mean the appeal had been completed. In fact, since the request for a new policy was not on the agenda for the School Board meeting, there would be a serious question as to the validity of any action taken by the Board on a non-emergency matter under the Open Meetings Law. See Article 6252-17, Sec. 3A, Tex.Rev.Civ.Stat.Ann.; Toyah Independent School District v. Pecos-Barstow Independent School District, 466 S.W.2d 377 (Tex.Civ.App.—San Antonio 1971, no writ); Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex.1975). Once the request was made for a new policy, it would seem the Board took the only alternative open to it, which would require taking the matter under advisement, then placing it on an agenda for action at a regular Board meeting and then adopting such policy as was proper and necessary with due regard for the rights of all concerned.

In the meantime, there has been no censorship of the Union flyer or newsletters. Mr. Hastings readily admitted Union publications could be mailed to teachers in the School system, or they could be hand delivered outside the School campus. While this might be more expensive and more time consuming, nevertheless, a means of distribution was available to the Union. Once a policy is adopted, it may be subject to attack, but if it be such as to prevent “material and substantial” disruption of school activities, then it would be a permissible restraint upon the constitutional right of free speech. Shanley v. Northeast Independent School District, supra.

The School Board, having been directed to provide a “reasonable appellate mechanism” in Shanley, and having been enjoined from permitting that appellate mechanism to work in this case, must wonder what direction it should take as the control of its day-to-day operations does a flip-flop between federal and state courts. No censorship having occurred, we propose to leave those operations with the trained and educated school administrators and the duly elected board members, who are always accountable to the public whom they serve without pay, life tenure or retirement benefits.

Having sustained Appellants’ Points of Error One and Two, the third point becomes immaterial.

The judgment of the trial Court is reversed and the temporary injunction is dissolved.

      . See Tinker v. Des Moines Independent Community School District, supra.

      . Burnside v. Byars, 363 F.2d 744 (5th Cir.1966).

        .Karr v. Schmidt, 320 F.Supp. 728 (W.D.Tex.1970), reversed 460 F.2d 609 (5th Cir.1972).

      . See Shanley v. Northeast Independent School District, supra.

      . Id. 967.