author: ODOM, Judge. ROBERTS, Judge

text:
    Delbert Allen GIBSON and A. L. Reeves, Jr., Appellants, v. The STATE of Texas, Appellee.
    No. 50197.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.
    Rehearing Denied Feb. 11, 1976.

      C. Anthony Friloux, Jr., Houston, Rodger M. Zimmerman, San Marcos, for appellants.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellants and a third codefendant who did not appeal his conviction waived trial by jury and entered pleas of guilty before the court to the offense of burglary with intent to commit theft. The trial eourt denied probation to these appellants and sentenced each to five years’ confinement in the Texas Department of Corrections.

Appellants raise five grounds of error challenging the voluntariness of their guilty pleas and the refusal of the trial judge, after assessment of punishment, to permit withdrawal of the pleas and award new trials. The substance of all grounds of error is stated in appellants’ brief as follows:

“The sole issue is ‘whether the plea by Gibson and Reeves was voluntarily made, or whether in truth and fact, it was induced by the plea bargaining guarantee of the State and the Sheriff?’ ”

The record on appeal before us contains transcribed court reporter’s notes from hearings on four different days. On May 16, 1974, the pleas of guilty were entered and accepted, and appellants were found guilty. On July 11, 1974, appellants again appeared and punishment was assessed. On August 28, 1974, the court heard and denied appellants’ motion for new trial. Finally, on November 21, 1974, appellants were called before the court for formal pronouncement of sentence.

On May 16, 1974, before accepting appellant Gibson’s plea of guilty, the trial judge made the following inquiries, among others:

“THE COURT: Have you been persuaded to plead guilty against your will?
“THE DEFENDANT: No, sir.
“THE COURT: Have you been promised anything in this case—
“THE DEFENDANT: No, sir.
“THE COURT: —to plead guilty. You know that if you plead guilty in this case, and the evidence shows that you’re guilty, that the attorneys may make a recommendation to the Court, and that’s all that is, a recommendation. I do not have to take the recommendation.
“THE DEFENDANT: Yes, sir.
“THE COURT: I will consider it, but that’s all; just consider it. If they recommend that you be granted probation, I may deny that recommendation and send you to the penitentiary for as much as twelve years. You understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Knowing all that, do you still plead guilty in this case?
“THE DEFENDANT: Yes, sir.”

The following inquiries were made of appellant Reeves:

“THE COURT: Has anyone promised you anything to plead guilty?
“THE DEFENDANT: No, sir.
“THE COURT: I don’t know whether I told A. L. Reeves or not, but the recommendation of the District Attorney or the State is nothing more than a recommendation. He may recommend probation and I could still send you to the penitentiary.
“THE DEFENDANT: Yes, sir.”

After accepting the pleas of guilty, the trial judge further stated:

“In addition to announcing judgment here, if you should be granted probation, if you should be, and don’t think that I’m saying that you’re going to be because I don’t know, if your records are not sufficient, your past records are not sufficient to warrant what I think would be a good probation risk, well, I will send you to the Department of Corrections. . . . "

On July 11 the case was called for assessment of punishment. Prior to assessment of punishment the prosecutor recommended probation and defense counsel made the following statement to the court:

“Judge, I would respectfully request the Court to be very compassionate in this case and grant these boys probation. The term of probation is not that important. Mr. Fielder has seen fit after reading all the investigation to recommend probation. I know that you’re the final word. But we would urge upon the Court to exercise extreme leniency in this case and grant all three of them probation. Thank you.”

The court assessed punishment in each case at five years and denied probation. At that point appellants sought to withdraw their guilty pleas, and defense counsel stated as grounds:

“ . . . Of course, the State has made its recommendation for probation, realizing, of course, it’s discretionary with the Court. But, nevertheless, the decision to enter a plea of guilty was based upon entirely and solely the recommendation for probation and the delusive hope of getting probation. . . . ”

The trial court refused to allow withdrawal of the pleas.

Subsequently appellants filed motions for new trial alleging in part that they entered pleas of guilty only because they had been guaranteed probation. Attached was an affidavit by Sheriff Bobby Kinser, read into evidence, in which it is stated:

“ ‘I am aware of the fact that none of the Defendants in this case would have changed their plea of “Not Guilty” to a “Guilty” plea had they not been assured that they would receive probation.”

Also attached was an affidavit by District Attorney Richard Fielder which recites in part:

“ T am cognizant of the allegations contained in the foregoing verified Motion for New Trial by the Defendants, Delbert Allen Gibson and A. L. Reeves, Jr., and said allegations are true and correct. Further, in an effort to fairly represent the people of the State of Texas, and by the authority vested in me as District Attorney of the 22nd Judicial District, I made an agreement with the Defendants, Delbert Allen Gibson, A. L. Reeves, Jr., and Larry Wayne Miller, and their attorney of record, Rodger M. Zimmerman, to recommend probation in their case, if they would change their pleas from “Not Guilty” to “Guilty.” The basis for this agreement was to move the trial docket and to see that restitution was made. Restitution was made and the interest of the State of Texas was best served by this “plea bargaining” procedure.
“ ‘There is not the slightest doubt in my mind that had these Defendants thought that they would not get probation, none of them would have changed their pleas of “Not Guilty” to “Guilty” and thereby given up their fundamental right to a trial by jury.” ’

Both appellants testified at the hearing on the motion. Both testified that they were promised probation, yet both also admitted that at the time they entered their pleas they told the court that they had been promised nothing and acknowledged that the trial judge had explained to them that any recommendations made would be nothing more than recommendations, and the trial court could sentence them to the penitentiary despite any recommendation of probation.

Following presentation of evidence at the hearing on the motion for new trial, counsel argued:

“ . . . But I am convinced that these two young men, all three of these young men, would not have changed their pleas if in their own mind they weren’t convinced that they were not going to go to the penitentiary. I realize my duty as defense counsel with these individuals; and going further than that duty, knowing what this Court has done in the past or what other courts do in the past. I talked with these Defendants about it and I said, ‘Regardless of what the District Attorney does, this judge has the power to do whatever he wants to do within what we’re talking about. But when the State’s attorney and the law enforcement agencies all get behind and recommend probation, and will go so far as to promise and add to that if the Court does not for any reason at all ‘I’ll join with you,’ then I think, Judge, to send these two young men to the penitentiary would be a real trick. . . . ”

On November 21 appellants appeared for sentencing. Prior to pronouncement of sentence the trial judge permitted the sheriff, defense counsel and himself to be called as witnesses by the defense “to make a record on some matters.” Counsel stated that he had filed a “Motion to Set Aside Judgment on Plea of Guilty and Assessment of Judgment [sic?].” The testimony was not relevant to or offered in support of any of the grounds stated in Article 42.07, V.A.C.C.P., as reasons to prevent sentence.

In their brief appellants assert:

“There is no dispute of the following material facts contained in the Statement of Facts:
“(6) That the district attorney Fielder guaranteed Defendants they would get probation and not go to jail if they changed their plea.
“(7) That the sheriff guaranteed the Defendants if they made restitution and changed their plea, they would get probation and not go to jail.
“(8) That the defense counsel assured Defendants the bargain and guarantee would be kept by the State.
“(9) That the Defendants would not have changed their plea except for this guarantee.”

A reading of the record as a whole, including those portions of the record quoted above, reveals that the assertions made by appellants that they were “guaranteed” probation are by no means established as undisputed fact. Appellants at the time of entering their pleas informed the court that no promises had been made and indicated to the court that they understood any recommendation of probation would not be binding on the court, but to the contrary, the court could sentence them to imprisonment notwithstanding any recommendations of probation. Statements by defense counsel acknowledged full understanding on his part and communication to his clients of the principle of law that on the decision of whether to grant probation the judge is “the final word” and “it’s discretionary with the court.” The ultimate issue, as framed in appellants’ brief, of whether appellants’ guilty pleas were induced by a guarantee of probation, was, on the record before us, an issue of fact which the trial court resolved against appellants. The record contains evidence sufficient to support the trial court’s implied finding that there was no guarantee, but that instead there was nothing more than a traditional and valid plea bargain by which the prosecutor agreed to recommend probation. It appears that upon failure of the trial court to follow the recommendation for probation appellants sought to withdraw their pleas, not because of failure of a bargain guaranteeing probation, but because their assessment of the weight that the prosecutor’s recommendation would carry with the trial court proved inaccurate.

The record does not show that appellants’ pleas were induced by a guaranteed probation and the grounds of error are overruled.

Suggested by the record but not adequately developed in the evidence or argued on appeal are possible claims of prose-cutorial misconduct, ineffective assistance of counsel, or both. The American Bar Association Standards for Criminal Justice (though not adopted in this State), relating to the Prosecution Function, Approved Draft, 1971 (Section 2.8(a)), state, “It is unprofessional conduct for a prosecutor intentionally to misrepresent matters of fact or law to the court.” The Standards relating to the Defense Function, Section 1.1(d), likewise state, “It is unprofessional conduct for a lawyer intentionally to misrepresent matters of fact or law to the court.” Regarding plea bargains, the Standards relating to the Prosecution Function state in Section 4.3(a) and (b):

“(a) It is unprofessional conduct for a prosecutor to make any promise or commitment concerning the sentence which will be imposed or concerning a suspension of sentence; he may properly advise the defense what position he will take concerning disposition.
“(b) A prosecutor should avoid implying a greater power to influence the disposition of a case than he possesses.”

The following Standards are proposed in the delineation of the Defense Function:

Section 5.1(b):

“It is unprofessional conduct for a lawyer intentionally to understate or overstate the risks, hazards or prospects of the case to exert undue influence on the accused’s decision as to his plea.”

Section 7.5(a):

“It is unprofessional conduct for a lawyer knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek withdrawal thereof upon discovery of its falsity.”

Although the record before us no more supports findings of conduct violative of the above quoted standards than it supports a finding that the pleas were induced by a guarantee of probation, we can only conclude that were it to support the latter, it almost certainly would support the former. The prosecutor and defense counsel are without authority to bind the court to a fixed punishment or to probation by plea negotiation. An attempt to base a negotiated plea upon such a guarantee would violate Prosecution Function Standard 4.3(a) and (b), supra, and Defense Function Standard 5.1(b), supra. To then represent to the court at the entry of the plea that no plea bargain has been struck or that no improper plea bargain has been struck would violate Prosecution Function Standard 2.8(a), supra, and Defense Function Standard 1.1(d), supra. To stand silent while the defendant makes such representations known by the prosecutor and defense counsel to be false would possibly violate both previously cited standards and Defense Function Standard 7.5(a), supra.

As previously stated, the record before us does not prove and the brief does not assert violation of the above quoted standards. The record supports the implied findings and the ruling of the trial court. Nevertheless, we have quoted from the Standards for Criminal Justice in order to draw the attention of the bench and bar to the need for proper conduct of plea negotiations, and demonstrate the soundness of the recommended practice upon entry of a guilty plea of inquiring whether the plea is the consequence of negotiations, and if so, what the terms of the negotiated plea are. Of. Galvan v. State, Tex.Cr.App., 525 S.W.2d 24, in which the trial court, as in the instant case, followed “the highly desirable practice” (Galvan v. State, 525 S.W.2d at 26) of explaining to the accused that a recommendation is only a recommendation, and does not bind the Court. No less desirable a practice is that the results of any negotiations upon which the plea is based be made known to the trial court and made a part of the record. See Cruz v. State, Tex.Cr.App., 530 S.W.2d 817. Since properly negotiated pleas are acceptable and improper plea bargains render the plea involuntary, there is nothing to lose and all to gain by bringing the fruit of negotiations out of the closet and into the record.

The record in the instant case supports the conclusion that appellants entered their pleas of guilty voluntarily and knowing that the court was not bound by the prosecutor’s recommendation of probation.

The grounds of error are overruled and the judgments are affirmed.

DOUGLAS, J., not participating.

ROBERTS, Judge

(dissenting).

This case goes to the heart of the plea bargaining process, questioning the reasons for its very existence. It demonstrates how a common malfunction of the process results in further delays of criminal justice administration, strained relations between bench and bar, and manifest injustice to criminal defendants.

The facts surrounding these guilty pleas are amply set forth in the majority opinion. They present an all too familiar scenario. Accepting the testimony most favorable to the State, it is seen that the defendants changed their pleas to guilty in exchange for the prosecutor’s recommendation of probated sentences. Although they were admonished at the time by the trial court that he was not bound to accept the prosecutor’s recommendations, and were in all probability so informed beforehand, they quite reasonably expected to receive probated sentences. They would never have changed their pleas if they had thought for a moment that they would wind up in the penitentiary. However, the trial judge rejected the terms of the plea bargain, as was his prerogative. It is a fact, however, that this prerogative is never exercised by many judges, and only rarely by the rest, for the obvious reason that it defeats the whole purpose of the plea bargaining system.

That the plea bargaining process is an indispensable element of our criminal justice system there can no longer be any doubt. See, e. g., Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975) (concurring opinion); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The bedrock assumption of the process was stated by the Supreme Court in Santobello as follows:

“. . . when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id., at 262, 92 S.Ct. at 499.

When a defendant does not obtain the sentence he bargained for, even though the prosecutor made the recommendation agreed to, there has been in a very real sense a failure of consideration flowing to the defendant.

Consider briefly the consequences of affirming convictions such as these. Defense lawyers are going to be much more hesitant to enter plea bargains with the prosecutor’s office — especially in Hays County — if the judge is simply going to ignore them. This should necessitate trials in at least some cases which would otherwise be settled by negotiated pleas.

“An accused will be reluctant to engage in negotiations or to enter into a plea agreement if he cannot withdraw his plea of guilty when he does not obtain the expected concessions he was promised.” State v. Wolske, 280 Minn. 465, 160 N.W.2d 146, 151-52 (1968).

Other aspects of the delay in criminal justice administration caused by the judge’s rejection of the plea bargain can be foreseen in the lengthy wrangling over motions to withdraw the guilty plea and in motions for new trial, as in this case, and in appeals such as this.

Moreover, rejection of plea bargains can only lead to strained relations between the bench and bar. Although this case involved uncharacteristic cooperation between defense counsel, the prosecutor’s office, and law enforcement officials, the record reveals lack of communication and distrust where the trial judge is concerned. When a judge lends no more credence to a plea bargain than was exhibited in the instant case, he is going to disappoint not only the defense bar, but the prosecutor’s office as well.

Consider also the cost in respect for the system that cases such as this engender.

“It is important for all segments of our society to believe that our court systems dispense justice. This includes the criminals themselves as well as the law abiding citizens and especially those criminals who have cooperated fully in police investigations.” Dube v. State, 257 Ind. 398, 275 N.E.2d 7 (Ind.1971).

To that group of criminals might be added those who uphold their end of the bargain and plead guilty. The disillusionment with the criminal justice system already festering in our jails and prisons cannot help but be exacerbated by cases such as those of Gibson and Reeves. And it is not likely that the general public will more readily perceive the justness of such results.

The denial of motions to withdraw guilty pleas in such cases also results in manifest injustice to the defendant. His guilty plea usually waives numerous rights, including the right to a jury trial, the right to confront witnesses and the right to assert whatever defenses he thinks he has. What is the consideration for these concessions if the court rejects the bargain and the plea is irrevocable?

“More important, we believe, if withdrawal is refused upon proof of an un-kept and unfulfilled plea agreement, defendant has been in effect deprived of his right to a jury trial and the benefit of the presumption of innocence — constitutional safeguards guaranteed to every accused without regard to the probability of his guilt or the truthfulness of any pretrial admissions or confessions.” State v. Wolske, supra at 151.

What can be more unfair than the procedure countenanced by the majority, whereby a defendant must uphold his end of the bargain, to his irrevocable prejudice, before the court decides whether or not the prosecution’s side of the bargain will be upheld?

There has been a growing recognition by other jurisdictions of the problems discussed above. A variety of safeguards surrounding guilty pleas have been adopted, but the one I would urge today is simply this: when the trial judge rejects a plea bargain, the defendant, upon timely request, should have the right to withdraw his guilty plea.

There is admittedly no statutory or case authority in Texas for this rule. In fact, the rule urged would have the effect of overruling express authority to the contrary. Williams v. State, 487 S.W.2d 363 (Tex.Cr.App.1972). The cases of Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975), Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975), and Cruz v. State, Tex.Cr.App., 530 S.W.2d 817 (this day decided) to the same effect are distinguishable. In none of those cases was there a timely request to withdraw the guilty plea before imposition of sentence. It should also be noted that Texas subscribes to a liberal policy touching withdrawal of guilty pleas. Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279 (1922).

Perhaps concerned about injustices in the area of voluntary guilty pleas, the 64th Legislature recently amended the applicable statute, Art. 26.13, V.A.C.C.P., by adding among other things the following required admonishment prior to acceptance of such pleas:

“(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on.the court.”

This action codified the recommendations of some cases as to “the better practice”. Trevino v. State, 519 S.W.2d 864, 868 (Tex.Cr.App.1975); Galvan v. State, 525 S.W.2d 24, 26 (Tex.Cr.App.1975). It is nevertheless clear that the statutes do not contemplate the rule urged today. It should be noted, however, that such a rule would not rob the trial judge of his discretion to accept or reject a guilty plea. This discretion is essential if the trial judge is to prevent oppressive or unfair bargains and to protect the public interest. The rule would merely permit an accused to opt for the uncertainties of trial by changing his plea to not guilty when confronted with a trial judge unwilling to accept the prosecutor’s recommendation.

It is neither necessary nor appropriate to defer to the Legislature for fashioning this rule. The Legislature wisely left “delusive hope of probation” out of Art. 26.13 as a factor which might invalidate a guilty plea. See also Valdez v. State, 507 S.W.2d 202 (Tex.Cr.App.1974). The Legislature is not blind to the fact that most negotiated guilty pleas are based on some sort of hope of probation. Under the strict language of Art. 26.13, a guilty plea can be accepted even if it is based on a hope of probation which turns out to be delusive. All the rule urged today would do would be to permit the accused to withdraw his guilty plea, upon timely request, if that hope turns out to be delusive. No modification of Art. 26.13 is necessary. Moreover, the amended Art. 26.13 now only requires that a guilty plea be free and voluntary, dropping the proscriptions against fear, persuasion, promises, and delusive hopes of pardon. The way is opened for spreading the terms of plea bargains upon the record, as my Brother Odom has prudently recommended in Cruz, supra.

It remains to consider where other jurisdictions stand on this matter. Following the lead of the third and eighth circuits, Congress has finally adopted the long awaited amendments to the Federal Rules of Criminal Procedure. Rule 11(e)(4), effective December 1, 1975 provides as follows:

“Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.” (Emphasis added)

It thus appears that the entire federal system now subscribes to the rule urged today. A majority of the states confronting the issue also permit a defendant to withdraw his guilty plea if the judge rejects the plea bargain. Many of those states rejecting the rule have done so only after lengthy discussions and over dissenting opinions. Thus, the trend is in the direction of the rule urged here.

Support for the rule can also be found in the proposed revisions to the American Bar Association Standards Relating to Pleas of Guilty (Approved Draft, 1968), Sec. 2.1(a)(ii)(5) and the American Law Institute’s Model Code of Pre-Arraignment Procedure (Proposed Official Draft, 1975), Secs. 350.5(4) and 350.6.

The time is right for Texas to join the growing number of jurisdictions permitting withdrawal of guilty pleas, upon timely request, when the trial court rejects a plea bargain. Only after having been given such an opportunity after the trial judge rejects the plea bargain can a defendant’s plea be characterized as voluntary. Accordingly, I would adopt the rule discussed above and reverse these convictions. The causes should be remanded and the appellants given a chance to change their pleas.

DOUGLAS, J., not participating.

      . Cf. Faurie v. State, Tex. Cr.App., 528 S.W.2d 263 (1975).

      . If properly before us (Cf. McCall v. State, Tex.Cr.App., 512 S.W.2d 334), the record made at that hearing reflects:
      The sheriff testified:
      “Q. All right. Is it your testimony that the plea bargaining took place between the prosecution with you yourself as the investigating officer present, the defendants and their lawyer, Mr. Zimmerman?
      “A. Yes.
      “Q. As a result of that plea bargaining an agreement was reached, was it not, for probation?
      “A. That’s correct.
      “Q. And at that time were the defendants told that if they did plea they would get probation, would not have to go to jail.
      “A. Yes, sir.”
      Defense counsel testified:
      “Q. All right. As a result of a negotiation did the District Attorney agree that he would recommend probation and assured them they would not get any jail time.
      “A. Yes, sir.
      “Q. As a result of that, after your conference with your clients following the negotiation, did they then agree to change their plea on that assurance?
      “A. Yes, sir. I might add to that, the District Attorney told us that in the event something happened, that the Court would not go along with its plea, that if necessary, and went to that extent, he would join with us in not opposing a Motion for a new trial, to put them back in the stature they were in prior to changing their plea for which he did, and for which I respect him in living up to his word in doing so, and he did.

      “Q. Was there any question in your mind when you discussed the matter after the plea bargaining with the clients that the plea would be honored?

        “A. There really wasn’t any question in my mind. I knew the record of the individuals. I knew it was always an outside possibility of being a discretionary matter with the Court that probation would not necessarily be granted. But I had no earthly idea, nor did I suspect of my wildest dreams, that if this honorable Court would not grant probation after the State had recommended it, and after they changed their pleas by a plea bargaining system, that he would not allow them to withdraw their plea and put them back in the same stature they were in prior to changing their plea.
      “Q. All right. It was on that feeling or on that decision you made and based on your prior experience never having had any problem in this area that you went ahead and recommended that the bargain that had been made in their presence be honored.
      “A. Yes, sir.
      “Q. And from your discussion with the client can you testify whether or not they would have gone forward if there had been any question in their mind there was any chance of getting jail time?
      “A. No, sir. There’s absolutely no question in my mind looking back now that, or at the time, there was no question in my mind but that if they were not assured and they didn’t really believe that they were going to get probation they wouldn’t have changed their plea; and, further, if there was any remote idea on their mind that they would not be allowed to withdraw their plea if probation was not granted that they would go to the penitentiary, they would never have considered it.
      “Q. Now, this was, I guess, was communicated to the defendants by yourself, and the investigating officer and the prosecutor.
      “A. Yes, sir.
      “Q. Now, in regard to the admonition that was given to the defendants which the Court has advised that he was not bound by the recommendation, and so forth, had you heard this admonition on the other cases where the plea bargaining had been honored?
      “A. Yes, sir.
      “Q. In those cases the defendants likewise say, ‘No. The defendant had no bargain.’
      “A. That’s correct.
      “Q. And you’re familiar with this practice throughout the State, are you not, trying cases in other districts.
      “A. Yes, sir.
      “Q. Is that the procedure generally followed as far as your experience has been?
      “A. I know of no other procedure.
      “Q. We have no plea bargaining statute in Texas as such which specifies particular sequential questions. Do we?
      “A. No, sir.
      “Q. All right. Is it your judgment that based on the conversations with the two defendants in this cause that they acted in accordance with what they thought was an agreement which would have resulted in their getting probation in this ultimate decision?
      “A. Yes, sir, or in the alternate; at least not have a one-way ticket to the penitentiary.”
      The trial judge testified:
      “Q. Yes, sir. At the time the plea and the recommendation was made the Court had the matter referred to the probation officer for an investigation.
      “A. 'Right.
      “Q. All right. At the time the sentencing took place the Court then was aware of the recommendation of the State and also had before it the results of the probation investigation. The Court at that time, as I recall from the record, advised that he was going to, one boy, was going to be given probation. The sentence as to the other two, they had five years, I think, in the Texas Department of Corrections, as the Court could not give probation. I think the Court might have specified the reason for it. Your Honor, prior to this time, since this District Attorney has been in office, I’ll ask the question as to the predecessor, has the Court up until the date of the Reeves and Gibson case on recommendation of the State for probation where plea bargaining had taken place, has the Court without any notice on either parties and in specific cases refused to accept the recommendation, even though the Court was then made aware that a plea bargaining had been made, decide that the Court would not foEow the bargain and subsequently sentence them to jail time?
      “A. I have.
      “Q. Does the Court recall prior to this Gibson and Reeves case any specific cases where this wasn’t given?
      “A. I don’t specifically remember one in Hays County. However, at or about the time these pleas were entered and the plea bargaining was discussed between the defense, and the defendant, and the State’s attorney, the recommendation was made to the Court after a presentence investigation was presented to the Court, instead of the defendant having two minor violations I found, as a result of a wrap sheet that was not presented to the Court at the time the plea was entered but was then presented to the Court in the pre-sentence investigation, that the defendant had some ten or twelve arrests in the last three or four years; at which time I declined to follow the recommendation, and sentence the defendant to five years in the penitentiary for burglary. On rehearing I reduced it to four when he made some restitution.
      “Q. All right, sir. Your Honor took part in the proceeding and during the course of the actual sentencing itself preparatory to the Motion for New Trial. The Court did give the admonition and did make a statement that he was not bound by, according to the statutes itself, any recommendation that had been made by the State. The Court’s well aware from the record the defendants’ reply to the Court’s question ‘Have you been promised by anybody . . . ’ and the rest of the admonition, they said, they responded in the negative. I would ask the Court this. Generally speaking, in plea bargaining cases isn’t it true where there is a recommendation from the State that the defendants respond in this manner?
      “A. It is.”

      . We also note that Art. 26.13, V.A.C.C.P., as amended, effective after the trial in this case, provides:
      “(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
      “(1) the range of punishment attached to the offense; and
      “(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.

      “(b) No plea of guilty or plea or nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
      “(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.” (Emphasis added.)

      . Since sentences are not usually probated until after a pre-sentence report has been filed and the time for filing motion for new trial has expired, the sentencing hearing is often the first indication a defendant has that probation will be denied. At this time, good faith would require that the trial judge indicate his dissatisfaction with the prosecutor’s recommendation, thereby allowing a timely motion to withdraw the guilty plea before imposition of sentence. It is noted that Trevino, Galvan and Cruz were all sentenced by the same trial judge, who did not afford them this advance warning of his intentions.
      See also the American Bar Association Standards Relating to Pleas of Guilty (Approved Draft, 1968), Sec. 3.3(b); The American Law Institute’s Model Code of Pre-Ar-raignment Procedure (Proposed Official Draft, 1975), Sec. 350.5(4), and Rule 11(e), Fed.Rules of Crim.Proc., eff. Dec. 1, 1975, containing similar recommendations.

      . United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3rd Cir. 1972).

      . United States v. Gallington, 488 F.2d 637 (8th Cir. 1973), cert. den., 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974).

      . Connecticut — Quintana v. Robinson, 31 Conn.Sup. 22, 319 A.2d 515 (1973).

        Florida — Davis v. State, 308 So .2d 27 (Fla.1975).

        Georgia — Burkette v. State, 131 Ga.App. 177, 205 S.E.2d 496 (1974).
      Illinois — Ill.Sup.Ct. Rule 402(d)(2) (1970); Ill.Rev.Stat.1973, ch. 110A, Sec. 402(d)(2).

        Indiana — Watson v. State, 300 N.E.2d 354 (Ind.1973).

        Iowa — State v. Fisher, 223 N.W.2d 243 (Iowa 1974).

        Minnesota — State v. Wolske, 280 Minn. 465, 160 N.W.2d 146, 152 (1968).
      New Hampshire — State v. Farris, 320 A.2d 642, 644 (N.H.1974) recommended as “prudent”.
      New Jersey — State v. Nuss, 131 N.J.Super. 502, 330 A.2d 610 (A.D.1974).
      Pennsylvania — Rule 319, Pa.Rules of Crim.Proc.; Commonwealth v. Wilson, 335 A.2d 777 (Pa.Super.1975).

      . California — People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970).

        Massachusetts — Commonwealth v. Stanton, 317 N.E.2d 487 (Mass.App.Ct.1974).

        Michigan — People v. Rogers, 55 Mich.App. 491, 223 N.W.2d 20 (1974).

        Missouri — Huffman v. State, 499 S.W.2d 565 (Mo.Ct.App.1973).
      New Mexico — State v. Ramos, 85 N.M. 438, 512 P.2d 1274 (N.M.Ct.App.1973).
      New York — People v. Selikott, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784 (N.Y. Ct.App.1974), cert, den., 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975).

        Texas — Williams v. State, supra.

        Wisconsin — State v. McKnight, 65 Wis.2d 582, 223 N.W.2d 550 (1974).

      . 2.1 Plea withdrawal.
      (a) The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

      (ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
      (5) he did not receive the charge or sentence concessions contemplated by the plea agreement concurred in by the court, and he did not affirm his plea after being advised that the court no longer concurred and being called upon to either affirm or withdraw his plea.

      .Section 350.5. Additional Action to be Taken by the Court Where There is Plea Agreement

      (4) Ruling on the Plea. Before accepting a plea pursuant to a plea agreement, the court shall advise the parties whether it approves the agreement and will dispose of the case in accordance therewith. If the court determines to disapprove the agreement and not to dispose of the case in accordance therewith, it shall so inform the parties, not accept the defendant’s plea of guilty or nolo contendere, and advise the defendant personally that he is not bound.

      Section 350.6. Sentencing Following Plea
      If, at the time of sentencing, the court for any reason determines to impose a sentence more severe than that provided for in a plea agreement between the parties, the court shall inform the defendant of that fact and shall inform the defendant that the court will entertain a motion to withdraw the plea. The court after pronouncing the sentence of a defendant who has pleaded guilty or nolo contendere shall inquire of the defendant personally whether the sentence pronounced violates any agreement or understanding the defendant had with respect to the sentence. If the court determines that the sentence pronounced is inconsistent with an agreement, or that it differs from the defendant’s understanding in such a way that it would be unjust to permit the defendant’s plea to stand, it shall vacate the plea.


source: Caselaw Access Project

author: ROBERTS, Judge. DOUGLAS, Judge.

license: Public Domain

text:
    Thomas Edward MAYBERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 49840.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.
    On Rehearing Feb. 4, 1976.

      John Rapier and Malcolm Dade, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Steve Wil-ensky, Fred Davis and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appeal is taken from a conviction for possession of heroin. After the jury returned a verdict of guilty, punishment was assessed by the court at sixteen years.

On December 10, 1971, Officers Walker, Avey, and Barnett went to a residence at 4152 Prescott Street in Dallas after having been advised that this was the address of one Ed Weaver. They were seeking Weaver by reason of information they had received that Weaver had purchased a stolen television set. Upon knocking at the door at the address in question, a person later identified as James E. Goodman, alias Norris Paul Dittrick, opened the door. Goodman, in response to the officers’ questions, stated that he did not live there and he did not know if Ed Weaver lived there. Goodman told the officers “Old Tom pays the rent” and “Old Tom will know where Ed is at.” The officers then asked, “Could we talk to Old Tom?” While there is conflict among the officers’ testimony as to what, if anything, was said at this juncture, all three officers testified that Goodman motioned with his hand for them to follow him. The three officers entered the living room and Barnett testified that Goodman motioned to him a second time to follow him. Barnett entered the kitchen behind Goodman and observed appellant cutting or slicing a white substance that appeared to be heroin. A lab analysis of the powder seized from the table in the kitchen revealed that the substance contained heroin and morphine.

I.

Appellant first urges that Goodman did not have the authority to consent to a search of appellant’s residence. The State counters that the officers merely seized evidence in plain view after being lawfully invited onto the premises, and that no search took place. Justification for this view can be found in Alberti v. State, 495 S.W.2d 236 (Tex.Cr.App.1973), where the seizure of marihuana in plain view inside defendant’s apartment was upheld since the defendant, responding to the officers’ knock at his door, had invited them to come in. In Alberti, this Court wrote:

“We recognize that it has long been the rule in this jurisdiction that an invitation to officers to enter a residence ordinarily cannot be construed as an invitation or consent to search. Robertson v. State, 375 S.W.2d 457 (Tex.Cr.App.1964). However, that case and many others have recognized that officers invited in are not trespassers and have a right to seize articles in open view.” (Citations omitted).

The distinction between a search and mere entry of a person’s dwelling is thus established. But the discovery of the heroin in this case cannot be justified on the basis of Alberti. The issue of authority to consent to a mere entry of a dwelling was not present in either Alberti, supra, or Robertson, supra, because the invitation to officers to enter the dwelling was in both cases given by the defendant who was a resident there. Those cases can be taken to mean only that mere entry is a lesser intrusion than a search, but not that mere entry is no intrusion at all. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Simply because officers merely entered appellant’s residence pursuant to Goodman’s invitation does not mean that the Fourth Amendment is inapplicable. Reliance on magic words such as “search” is misplaced. Cf. Terry v. Ohio, supra. The Fourth Amendment protects not only against unreasonable searches and seizures but against any invasion of a person’s reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (especially concurring opinion of Harlan, J.); Mancusi v. Deforte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Sorensen v. State, 478 S.W.2d 532 (Tex.Cr.App.1972), and Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971). There is not much dispute that a person is entitled to a reasonable expectation of privacy in his own home. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Appellant in the instant case was discovered cutting heroin in the kitchen of his own home, out of view of passers-by and even others in the house. Surely it cannot be said that he had no reasonable expectation of privacy. Therefore, the Fourth Amendment was not inapplicable.

The question then becomes, did Goodman have authority to waive appellant’s Fourth Amendment protections. I cannot subscribe to the State’s contention that any unauthorized third person might consent to mere entry of another’s house, simply because it is a lesser intrusion than a search. Such a holding makes serious inroads into our Fourth Amendment protections.

The cases of United States v. Mattlock, 476 F.2d 1083 (7th Cir.1973), rev’d on other grounds, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), and the annotations at 31 A.L.R.2d 1078 discuss authority for consent to search and provide a good starting point for the inquiry in the instant case. These authorities make it clear that third persons can give consent to search premises only when they have rights of control or use of the premises concomitant to those of the owner’s. Mattlock states that this authority to consent to a search consists of both a reasonable appearance that such authority exists and facts existing just prior to the search showing actual authority to consent. Goodman lacked authority to consent to a search under either of these tests. The record shows that Goodman did not live at the house, that he did not even know if Ed Weaver did live there, and that he communicated these facts to the officers prior to his invitation for them to enter.

The case of Illinois v. Dent, 371 Ill. 33, 19 N.E.2d 1020 (1939) is close to the facts in the present case. There, police knocked on defendant’s door and entered the house when defendant’s companion said, “Come in.” They found defendant and her companion sitting at a table with a policy book, numbers, and betting slips spread out before them. A majority of the Illinois Supreme Court held that the materials thus seized were inadmissible and said that there must be a showing that the companion’s invitation to the officers to enter the premises was specifically authorized by the resident defendant. The Court added that a person’s Fourth Amendment rights are personal and cannot be waived indiscriminately by anyone else without doing violence to the constitutional principle.

Perhaps it should be held that a third person needs as much authority to waive an owner’s protections against mere entry as he would need to consent to a search. But we need not go that far in this case. The officers’ entry into appellant’s house, although not as intrusive as a search, was nevertheless a lesser invasion of appellant’s reasonable expectation of privacy. As such, it could not be authorized by Goodman, whose lack of authority to give such permission was not only a fact but was known to the officers. To hold otherwise would be to hold that anyone could give consent to police officers merely wishing to enter another person’s home.

II.

Reversal of this conviction is also mandated by prejudicial prosecutorial argument in this case. At the guilt-innocence stage of the trial, the following proceedings transpired:

“MR. DAVIS [Prosecutor]: I think common sense, and certainly a reasonable deduction from the evidence about how heroin is packaged, how it’s sold, what it sells for, tells you that it results in more crime in this community; that people do anything to get heroin, that this man .
“MR. CHITWOOD: Your Honor, I again object to this argument here. There is no evidence here whatsoever as to the effect of heroin on crime in Dallas County.
“MR. DAVIS: I will withdraw it.
“THE COURT: Overruled.
“MR. CHITWOOD: Note my exception.”

The prosecutor’s references to the packaging and selling of heroin might well have been a reasonable deduction from the evidence about the amount of heroin found, the cellophane wrappers and tape also found, the heroin that was already packaged, and the cost of heroin on the street. This type of deduction from the evidence was approved in Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1974). But the contention that “ . . . it results in more crime in this community; that people do anything to get heroin . . . ” takes the argument beyond the type of deduction permitted in Powell. And reading the statements together produces a meaning different, from that which could legitimately be deduced from the evidence. The crime increase being referred to is not an increased incidence of heroin sales by this appellant, but rather the crimes against persons and property allegedly committed by people needing to buy the heroin.

This argument falls squarely within the prohibitions of White v. State, 492 S.W.2d 488 (Tex.Cr.App.1973) wherein this Court held that a prosecutor’s argument that sixty per cent of the crime in Dallas County was attributable to narcotics constituted reversible error. The only practical difference between the arguments in the two cases is that “sixty per cent” is a more precise figure than the general allegation of “more crime” in Dallas County.

In Rodriquez v. State, 520 S.W.2d 778 (Tex.Cr.App.1975), this Court condemned a similar argument outside the record. On the basis of one sale of heroin to an undercover agent, the prosecutor in Rodriquez argued about “the lives [Rodriquez] has touched with the heroin he has helped disburse in this county ... He has touched more lives than a killer could do with the heroin he helps disburse.” The extrapolation from the evidence to the effect on others in the county was held to be reversible error. The argument in the instant case contains a similar extrapolation to facts not in evidence. To permit this argument would be to permit prosecutors ever after to “deduce from the evidence” that those in possession of heroin are also responsible for many other crimes.

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

ONION, P. J., and MORRISON, J., join only in Part I of the opinion.

ODOM, J., joins only in Part II of the opinion.

DOUGLAS, J., not participating.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The heroin in question was contained in State’s Exhibits 3, 4 and 5. State’s Exhibit 3 was identified. An objection was made that the chain of evidence had not been established. The objection was sustained. The chain of evidence to the three exhibits was then established. When each of these exhibits was offered into evidence appellant’s counsel specifically stated on three separate occasions “no objection.” These exhibits were the only ones identified by Dr. Mason, the chemist, as being heroin. McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975), is directly in point. McGrew filed a motion to suppress evidence; it was overruled the day before the trial. When the marihuana in that case was offered, his counsel stated, “Your Hon- or, we don’t have any objections.” This Court wrote:

“In view of the express statement of appellant’s counsel, nothing is presented for review under the claim that evidence was seized as a result of an illegal search. Cortez v. State, 520 S.W.2d 764 (Tex.Cr.App.1975); Johnson v. State, 504 S.W.2d 496 (Tex.Cr.App.1974); Weatherspoon v. State, 501 S.W.2d 909 (Tex.Cr.App.1973); Stewart v. State, 491 S.W.2d 410 (Tex.Cr.App.1973); Finklea v. State, 481 S.W.2d 889 (Tex.Cr.App.1972).”

The matter is not properly before us for review.

Appellant contends that the trial court erred in overruling his objection to the prosecutor’s argument “that appellant was guilty because a co-defendant was found guilty and sentenced to thirty years in the penitentiary.”

The record reflects that the following occurred during the prosecutor’s argument at the guilt stage of the trial:

“The facts that apply to this defendant are the same facts that applied to him [James E. Goodman], and he was convicted then, thirty years in the Texas Department of Corrections.
“MR. CHITWOOD [defense attorney]: Your Honor, I am going to object to this on the grounds that there is nothing in evidence to show what facts were testified to back there in February of 1972, and ask it to be withdrawn from the consideration of the jury.
“THE COURT: Jury will recall the evidence, Mr. Chitwood.”

In Verret v. State, 470 S.W.2d 883 (Tex.Cr.App.1971), this Court quoted from 56 Tex.Jur.2d, Trial, Section 317, page 673:

“An objection to argument must be pressed to the point of procuring a ruling or the objection is waived. And to protect the record where an objection is passed on provisionally, counsel must procure a final ruling before the conclusion of the trial.”

In Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974), where the defendant objected to the prosecutor’s argument and the court responded, “The jury will have to remember the testimony,” this Court held that nothing was presented for review. It follows that nothing is before us for review in the instant case.

Appellant contends that the court erred in overruling his objection to an argument of the prosecutor which was outside the record.

The record reflects that the following occurred during the argument of the prosecutor at the guilt stage of the trial:

“MR. DAVIS [prosecutor]: I think common sense, and certainly a reasonable deduction from the evidence about how heroin is packaged, how it’s sold, what it sells for, tells you that it results in more crime in this community; that people do anything to get heroin, that his man—
“MR. CHITWOOD: Your Honor, I again object to this argument here. There is no evidence here whatsoever as to the effect of heroin on crime in Dallas County.
“MR. DAVIS: I will withdraw it.
“THE COURT: Overruled.
“MR. CHITWOOD: Note my exception.”

Appellant relies on White v. State, 492 S.W.2d 488 (Tex.Cr.App.1973), where in an appeal from a conviction for possession of heroin this Court held that the prosecutor’s argument which injected facts not in evidence, that sixty per cent of the crime in Dallas County was attributable to narcotics and that, when arrested, defendant was going “somewhere on up the line to get some more,” was of such a prejudicial nature as to deprive defendant of a fair trial.

When Officer Barnett entered the kitchen, appellant was observed “cutting up powder and mixing it with some white stuff, milk or something.” A portion of the substance was recovered and found to contain heroin. Eight small cellophane packets filled with a white substance were seized and found to contain heroin. These packets were described as “dime bags” or “hits” which are sold on the street for ten dollars a package. Empty cellophane wrappers and strips of cellophane tape were on the table where appellant was working and enough substance containing heroin was recovered, from the table to fill seven more “dime bágs” or “hit” packages. The argument that the heroin was for sale was a logical deduction from the evidence. Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). The prosecutor did not argue as to what per cent of the crime in the county was caused by narcotics, as in White v. State, supra, but rather that it was “a reasonable deduction from the evidence” that the heroin “results in more crime in this community.” It being a reasonable deduction from the evidence that the “hit” packets or “dime bags” of heroin possessed by appellant were for sale on the street leads to the logical conclusion that the possession of same “results in more crime in the community.”

There is no evidence to support prosecutor’s argument “that people do anything to get heroin.” The question thus becomes whether such argument was so harmful as to require reversal. The evidence of appellant’s guilt was overwhelming. No evidence was offered to refute the three officers’ testimony that appellant was found in the possession of heroin. The only defensive theory raised by appellant was that the heroin was illegally seized. The punishment having been assessed by the court after the jury returned a verdict of guilty, it cannot be urged that such argument affected the penalty assessed. Whether argument of counsel requires reversal of a judgment of conviction must be resolved on the probable effect it has on the minds of jurors and the facts of each case must be looked to. Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973); Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App.1972); Jett v. State, 489 S.W.2d 101 (Tex.Cr.App.1972). Under the facts and circumstances of this case, we do not find the error in the prosecutor’s argument to be so harmful as to require reversal.

The State’s motion for rehearing is granted. The reversal is set aside and the judgment of conviction is now affirmed.

ROBERTS, J., dissents for the reasons stated in his original opinion.


author: MORRISON, Judge.

text:
    Jimmy Dwain MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 50839.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Rehearing Denied Feb. 18, 1976.

      Benny J. Lowe, Odessa, for appellant.
    James A. Mashburn, Dist. Atty., and Jack K. Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with intent to commit theft under Article 1389, V.A.P.C.; the jury assessed punishment at nine years.

In view of our disposition of this ease, a recitation of the facts is not necessary. Appellant’s third ground of error challenges the admissibility of a pen packet from Ohio. The Ohio prison papers were offered at the punishment phase of the trial as proof of appellant’s prior criminal record under Article 37.07, V.A.C.C.P. Prior to the punishment hearing the State withdrew the enhancement portion of the indictment. Over appellant’s timely and specific objection, the papers were introduced into evidence as State’s exhibit No. 16.

Appellant contends the papers were not properly certified under Article 3731a, Sec. 4, V.A.T.S. made applicable to criminal trials under Article 38.02, V.A.C.C.P. The applicable statute provides in part:

“. . . Except in the case of a copy of an official writing or official electronic recording from a public office of this State or a subdivision thereof, the attestation shall be accompanied with’a certificate that the attesting officer has the legal custody of such writing . . .”

The Ohio papers were accompanied by a certificate as follows:

“I, Robert L. Baker swear that the enclosed copies are of the originalls [sic] received by me and that they are the true and accurate and certified.
s/Robert L. Baker_
Robert L. Baker Supervisor
Record Department”

The certificate was sworn to before a notary public in Warren County, Ohio. There is nothing in the record to indicate that Mr. Baker is an employee of the prison system of Ohio. The record does not contain a certificate from a judge in the county where the prison is located or from the clerk of a court in that county. There is nothing to indicate that the papers were received from the legal custodian of the records in Ohio.

We find the Ohio papers were not authenticated in compliance with Article 3731a, Sec. 4, V.A.T.S., and were improperly considered by the jury in assessing appellant’s punishment. See and compare Ka-naziz v. State, Tex.Cr.App., 382 S.W.2d 485.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge.

text:
    Richard Martin KOLB, Appellant, v. The STATE of Texas, Appellee.
    No. 50733.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1976.

      Tony Martinez, Brownsville, for appellant.
    Selden N. Snedeker, Dist. Atty., David Lanford, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for the possession of a controlled substance, to-wit: Marihuana over four ounces. The punishment, assessed in a bench trial, was two (2) years in the Department of Corrections.

In his sole ground of error appellant contends the trial court erred in overruling his motion to suppress and subsequently admitting into evidence all items seized when he was arrested since the same resulted from an unreasonable search and seizure.

The record reflects that James Parker of the Cameron County Organized Crime Task Force received information from an informer at 4 p. m. on August 4, 1974, that one Emil Cross, who was known to Parker, had picked up 400 pounds of marihuana in the Los Indios area and was taking it to either locker #94 or #95 at the Stor-More storage on Highway 83 Access Road in Harlin-gen. The informer related that Cross, whose description he gave, would be driving a white 1960 Chevrolet van bearing license number DF 1913. The informer had given reliable information in the past. The record, however, does not reflect how the informer came into possession of the information he passed on to Parker.

Parker, along with Gary Morrison, Special Agent, Drug Enforcement Administration, went to the Stor-More storage units soon after receiving the tip from the informer. They did not see Cross or a white Chevrolet, and there was no activity in the area. There were locks on both lockers #94 and #95. A search of the adjoining areas revealed nothing. Around 6 p. m. the manager of the storage units was contacted at home, and he was not sure whether Cross had rented locker #94 or #95. Parker had another engagement in Edinburg, and he did not meet Morrison again until 11:15 p. m. No effort was made to secure a search warrant. They then returned to the Stor-More units about 11:45 p. m. Again they did not see Cross or the Chevrolet van. They did notice a lock lying on the ground in front of locker #94, which was constructed of concrete blocks without windows. The overhead garage-type door to such locker was closed. They knocked on the door, and a male voice responded. They identified themselves as police officers “and told the male to open the garage door.” Officer Morrison put his hand on the door and began to open the door and believed someone assisted from the inside, but he wasn’t sure. When the door was opened, they observed the appellant Kolb, whom they did not know, and smelled marihuana. Kolb was patted down, and a pistol was found. With the aid of a flashlight, there being no other lights, the officers observed a Pontiac automobile with its trunk open inside the locker unit. There were suitcases near the car, as well as several large green garbage bags. The suitcases were found to contain what appeared to be marihuana residue, and the garbage bags contained bricks of what appeared to be marihuana. By stipulation, it was shown that the chemist found the 132.8 pounds of substance submitted to him to be marihuana. Other evidence reflected that it was later learned Cross, about whom the information was first received, had rented locker #95 and there was no showing of any connection between the appellant Kolb and Cross.

It is appellant’s contention that his arrest and search incident thereto were without warrant and the circumstances did not justify a warrantless search, not coming within any of the recognizable exceptions.

The basic purpose of the Fourth Amendment, United States Constitution, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. See Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). The same is true of Article I, Sec. 9 of the Texas Constitution, and it is well settled under the Fourth and Fourteenth Amendments of the United States Constitution that a search conducted without a warrant issued upon probable cause is “per se unreasonable . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454, 455, 91 S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Stoddard v. State, 475 S.W.2d 744, 749 (Tex.Cr.App.1972).

One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, supra; Davis v. United States, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 1261-1262, 90 L.Ed. 1453 (1946); Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477 (1946). The protections afforded by the Fourth Amendment and the State Constitution (Article I, Sec. 9) may be waived by an individual consenting to a search. Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Cr.App.1972); Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972); DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1971).

It is also settled that the burden of proof by clear and convincing evidence is upon the prosecution to show that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Frazier v. State, 119 Tex.Cr.R. 217, 43 S.W.2d 597 (1931); Scott v. State, 139 Tex.Cr.R. 210, 139 S.W.2d 787 (1940); Compton v. State, 148 Tex.Cr.R. 204, 186 S.W.2d 74 (1945); Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Cr.App.1972). The burden requires the prosecution to show consent given was positive and unequivocal, and there must not be duress or coercion, actual or implied. Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972). This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, supra; Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267, 65 L.Ed. 654 (1921); Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436 (1948); Paprskar v. State, supra.

As stated in 51 Tex.Jur.2d, Rev., Part I, Searches and Seizures, Sec. 42, p. 722:

“Consent to a search is not to be lightly inferred. It should be shown by clear and convincing evidence, and any consent must be voluntary and neither physically nor psychologically coerced . . . .”

And it must be remembered that consent to search is invalid if granted only in submission to a claim of lawful authority. Amos v. United States, supra.

The question of whether a consent to search was “voluntary” is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bus-tamonte, supra; Paprskar v. State, supra.

In the instant case there was no statement attributed to the appellant relating to the issue of consent. The only evidence bearing on the consent question was the fact that Officer Morrison, while opening the overhead door, himself “believed” someone was assisting him from the inside, but about this he was unsure. Officer Parker testified the door “flew open,” but he had no idea whether Morrison or the person inside opened the door. Under the totality of the circumstances, we cannot conclude the search of the garbage bags and suitcases was with consent. If the appellant in any way assisted the officer in opening the door, it was obviously in submission to the demand of the officers that he open the door.

The State argues, however, that the appellant “consented to the initial intrusion which placed the contraband in open view, thus negating the necessity of a search warrant or probable cause.”

It is true that an officer may seize contraband which he sees in plain sight or open view if he is lawfully where he has a right to be. Morrison v. State, 508 S.W.2d 827 (Tex.Cr.App.1974); Casarez v. State, 504 S.W.2d 847 (Tex.Cr.App.1974); Alberti v. State, 495 S.W.2d 236 (Tex.Cr.App.1973); Jackson v. State, 449 S.W.2d 279 (Tex.Cr.App.1970); Lewis v. State, 439 S.W.2d 351 (Tex.Cr.App.1969).

Even if we could conclude that the evidence was sufficient to show consent for the initial intrusion, which we cannot, we cannot conclude that evidence showed contraband in plain sight. There were no lights inside the locker. Only by a flashlight could the officers see the suitcases and garbage bags. It was not until the contents thereof were examined that it was determined that the contents were contraband.

This case cannot be sustained on the State’s theory of the case.

The State does further argue that once the door was opened the officers detected the odor of marihuana emanating from within the locker, and thus had probable cause to conduct a search for physical evidence. Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973); Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1972). See also United States v. Coffey, 520 F.2d 1103 (5th Cir. 1975). These cases involved either a valid stop for a traffic offense or a stopping of a vehicle at a permanent border checkpoint after which the officers detected the odor of marihuana coming from the interior of the vehicle and thus had probable cause to search.

In the instant case the officers either opened the door to a constitutionally protected area or caused the appellant in submission to the color of their office to assist in the opening of the door, and it was not until the door was opened that the officers smelled what they believed to be the odor of marihuana. An officer gaining access to a constitutionally protected area under the color of his office and of the law which he personifies must have some valid basis in law for the intrusion. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948). In the instant case there was no valid basis.

In this respect, the instant case is different from the facts in Albro v. State, 502 S.W.2d 715 (Tex.Cr.App.1973). There, officers received complaints about smoking in a certain apartment. As they approached the apartment, the front door was open and directly in front of the door was a little end table which contained a baggie of marihuana and a Kleenex and a couple of needles and syringes. Upon seeing such evidence, they entered the apartment. This court said:

“There is nothing to show that the officers had unlawfully intruded into a constitutionally protected area when they observed the marihuana in open view. Under such circumstances they had the right to enter the open door and continue to investigate.”

Appellant’s right of privacy was violated in the instant case. Cf. Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971).

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

DOUGLAS, J., concurs in the result.

      . The five basic exceptions are: (1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk.

      . Schneckloth v. Bustamonte, supra, made clear that the protections of the Fourth Amendment are of a wholly different order than those constitutional guarantees having to do with promoting the fair ascertainment of truth at a criminal trial, and that standard of intentional relinquishment or abandonment of a known right or privilege does not apply in determining the “voluntariness” of a consent search. Thus, the general test of a waiver of constitutional rights set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), is not applicable in such consent search cases. The question of whether a person has acted “voluntarily” in consenting to a search is distinct from the question of whether there has been a “waiver” of a trial right. The question of whether an individual has voluntarily consented to a search can be answered by examining the relevant circumstances to determine if he has been coerced while the waiver of trial rights turns on the extent of the individual’s knowledge. It is not necessary that an officer advise an individual of his right to refuse to consent before obtaining a valid consent for knowledge of a right to refuse to consent to a search is not a prerequisite of a “voluntary” consent. To the extent that Paprskar v. State, supra, applied the general test of waiver of constitutional rights set forth in Johnson v. Zerbst, supra, it is no longer viable.


author: BROWN, Commissioner.

text:
    Robert Glenn LANGFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 51360.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1976.

      Dougal C. Pope, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough and Greg Lucia, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for driving a motor vehicle while intoxicated under Art. 67017-1 V.A.C.S. Punishment was assessed by the court at thirty days in the county jail, probated for one year, and a fine of one hundred seventy-five dollars.

Initially we are confronted with the State’s contention that we are without jurisdiction to hear this appeal. The record reflects that the trial court assessed punishment on October 24, 1974. Appellant filed his motion for new trial on October 24, 1974. A hearing on the motion was set for November 13, 1974. The docket sheet for November 13, 1974 indicates only that notice of appeal was given in open court. The State argues that the notice of appeal was ineffective because it was given before the motion for new trial was overruled by operation of law.

This Court has held that where notice of appeal is given prior to the hearing on, or overruling of, the motion for new trial the notice of appeal is ineffective. Perez v. State, 496 S.W.2d 627 (Tex.Cr.App.1973); Menasco v. State, 503 S.W.2d 273 (Tex.Cr.App.1973).

However, the record was corrected on October 10, 1975 to reflect the fact that appellant’s motion for new trial was overruled by the trial court on November 13, 1974 after which appellant timely gave notice of appeal. Therefore, the record as corrected wholly fails to support the State’s contention. The appeal is properly before us.

Appellant’s first ground of error is that the trial court erred in refusing to permit the appellant to subpoena the breathalyzer machine and bring it into court.

The appellant contends that since he was not allowed to bring the breathalyzer into the courtroom he was denied the right of effective cross-examination of the State’s witnesses. What the appellant is apparently arguing is that he was denied the use of the breathalyzer machine so that it could be used to attack the credibility of the State’s expert witnesses. The record reflects that the appellant’s attorneys had the opportunity to examine the breathalyzer at the Houston Police Department. The appellant does not contend that the machine was in any way mechanically defective, nor has he shown how he could have used the breathalyzer in his cross-examination of the State’s witnesses. The record before us indicates that the appellant’s attorneys conducted an extensive and detailed cross-examination of the State’s expert witnesses.

The use of the breathalyzer before the jury rested within the sound discretion of the trial court. In order for the appellant to show an abuse of discretion he must show that he was harmed by the action of the trial court. This the appellant has failed to do. The appellant has made no showing that he was denied the right of effective cross-examination.

Appellant’s first ground of error is overruled.

Appellant’s second ground of error is that the breathalyzer statute, Art. 6701/-5, Sec. 3(b) V.A.C.S., is unconstitutional in that it is a delegation of legislative powers to the executive branch, i. e., the Texas Department of Public Safety.

See. 3(b) of Article 6701/-5 provides as follows:

“(b) Chemical analysis of a person’s breath, to be considered valid under the provisions of this section, must be performed according to methods approved by the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose. The Texas Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of the Texas Department of Public Safety.”

This Court is the final arbitrator of the standards that apply in determining the sufficiency of the evidence and due process. The statute in question has been cited, discussed and impliedly held constitutional in a number of cases. Gilder v. State, 474 S.W.2d 723 (Tex.Cr.App.1972) (reversed because there was no expert testimony offered that the result of the test showed intoxication); French v. State, 484 S.W.2d 716 (Tex.Cr.App.1972) (reversed because the proper predicate for the admissibility of the breathalyzer test not shown); Rangel v. State, 502 S.W.2d 152 (Tex.Cr.App.1973) (results of breathalyzer test inadmissible without testimony concerning the operator’s certification as required by Art. 6701/-5); Reyna v. State, 508 S.W.2d 632 (Tex.Cr.App.1974) (reversed because the proper predicate for the admissibility of the breathalyzer test not shown); Palafox v. State, 509 S.W.2d 846 (Tex.Cr.App.1974) (breathalyzer test not admissible because there was no showing that the operator possessed a valid certificate from the Department of Public Safety or that the test was performed according to methods approved by the Department of Public Safety); Dorsche v. State, 514 S.W.2d 755 (Tex.Cr.App.1974) (operator who gave breathalyzer test held to be currently certified as required by the statute and rules promulgated by the Department of Public Safety); Bennett v. State, 522 S.W.2d 507 (Tex.Cr.App.1975) (statute held only to apply to persons under arrest at the time the test was taken).

However, as the appellant’s reply brief points out this seems to be the first time that the constitutionality of the statute has been directly challenged.

In Margolin v. State, 151 Tex.Cr.R. 132, 205 S.W.2d 775 (1947), cited by the appellant, this Court reversed a conviction for violation of the pure food law holding that the statute could not be given a construction that allowed the State Health Officer to determine as a matter of law what constituted adulteration. This case is not in point. The delegation of authority that was condemned related to the definition of what was an offense not a means of determining if an offense had taken place.

In Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673 (1949), cited by the appellant, this Court held that where a statute forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application it lacks the first essential of due process of law. On this basis this Court held that a conviction for driving “without due caution or circumspection” could not stand. Again this is not in point since the question before us is not the definition of what constitutes an offense.

Our own research has led us to Williams v. State, 514 S.W.2d 772 (Tex.Civ.App.—Beaumont 1974 writ ref’d n. r. e.) which we believe is instructive. The appellant in Williams v. State, supra, challenged the constitutionality of the Water Well Drillers Act, Art. 7621e V.A.C.S., alleging that the Act was an unconstitutional delegation of legislative authority in that it did not set forth guidelines or standards for the Board to follow in licensing and regulating water well drillers. In finding that the Act was valid the Beaumont Court of Civil Appeals made the following points:

“In passing upon this question we have the rules stated in Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946), to guide us:
“ ‘This Court, in testing the constitutionality of a statute, has variably stated the rule as follows:
‘“Ashford v. Goodwin, 103 Tex. 491, 131 S.W. 535, 537, Ann.Cas.1913A, 699: “This court must sustain it unless its invalidity be apparent beyond a reasonable doubt.”
“‘State v. Hogg, 123 Tex. 568, 70 S.W.2d 699; on rehearing 123 Tex. 568, 72 S.W.2d 593: “ * * * the rule is that every possible presumption is in favor of the constitutionality of a statute, and such presumption obtains until the contrary is shown beyond a reasonable doubt.”
“ ‘It is stated in the case of Brown v. City of Galveston, 97 Tex. 1, 75 S.W. 488, loc.cit. 492: “If there be doubt as to the validity of the law, it is due to the co-ordinate branch of the government that its action should be upheld and its decision accepted by the judicial department.” ’ ”

In Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App.1969) the appellant challenged the constitutionality of Art. 6701c-3 V.A.C.S. which requires motorcycle operators and passengers to wear protective headgear. The appellant contended that the statute improperly delegated legislative authority to the Texas Department of Public Safety. This Court rejected the appellant’s contention, saying:

“The delegation of authority by the legislature to the Department of Public Safety to promulgate rules and regulations capable of reasonable application which are necessary to carry out the purpose of the act does not render the statute void.”

A contention identical to the appellant’s herein was before the Supreme Court of Iowa in the case of State v. Berch, 222 N.W.2d 741 (Iowa 1974). The Iowa court held that a statute which authorized the commissioner of public safety to promulgate rules for breath and urine tests to determine blood alcohol content was not an unconstitutional delegation of legislative power to the commissioner of public safety.

Beall Medical Surgical Clinic & Hospital v. Texas State Board of Health, 364 S.W.2d 755 (Tex.Civ.App.—Dallas 1963 no writ), contains the following statement of law:

“The Legislature may properly delegate to an administrative agency the authority to establish rules, regulations or minimum standards which may be said to reasonably carry out the expressed purpose of the Act.”

The title of the breathalyzer act reads as follows:

“An Act authorizing and regulating the use and performing of chemical tests under certain conditions on motor vehicle drivers to determine intoxication; providing for suspension or denial of the driver’s license upon refusal of an arrested person to submit to certain chemical testing; providing for an administrative hearing and judicial review; providing for admissibility of test results as evidence; providing a severability clause; and declaring an emergency.” Acts 1969, 61st Leg., p. 1468, ch. 434.

In light of the authorities cited above and the purpose of the Act as shown by its title it is clear that Art. 67017-5 does not contain an unconstitutional delegation of legislative powers to the Texas Department of Public Safety in allowing the Department of Public Safety to approve methods of breath testing, nor in authorizing the Department of Public Safety to ascertain the qualifications and competence of individuals who conduct the breath testing.

It should be further noted that the statute actually did no more than codify the existing case law that had developed on the issue of the admissibility of breathalyzer evidence. See 7 Houston L.R. 508 (1970). The use of breath testing evidence to prove intoxication was first approved by this Court in the case of McKay v. State, 155 Tex.Cr.R. 416, 235 S.W.2d 173 (1950) and it continues to be admissible evidence provided the proper predicate is shown. See also Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953)

Appellant’s second ground of error is overruled.

Appellant’s third ground of error is that the court erred when it instructed the jury that when a breath analysis is 0.10 percent or more by weight of alcohol in the person’s blood the defendant is presumed to be intoxicated.

The record before us indicates that no written objection to this portion of the trial court’s charge was made in a timely manner as required by Art. 36.14, V.A.C.C.P.

Appellant’s complaint is not before us for review. See, e. g., Keith v. State, 499 S.W.2d 187 (Tex.Cr.App.1973) and the cases cited therein.

The judgment is affirmed.

Opinion approved by the Court.


author: KEITH, Commissioner.

text:
    Reynaldo DOMINQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50762.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.

      Sol Balias, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Phil Adams and Gerald Banks, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

Appellant was indicted for murder but the conviction was for voluntary manslaughter and his punishment set by the court at confinement for ten years.

His single ground of error on appeal is that the trial court erred in refusing his requested charge on the right to continue shooting. In reviewing this ground of error we bear in mind the rule of law stated in Boaz v. State, 89 Tex Cr.R. 515, 231 S.W. 790, 794 (1920):

“The necessity of such a charge in a given case depends upon the facts and the manner in which the issues are submitted to the jury.”

Appellant and Steven Alvarez, the deceased, had been friends for several years. During the early evening of February 15, 1974, appellant accompanied the deceased, the deceased’s girl friend, Sarah Williamson, and Macio and Carrie Trevino to a bar in Dallas where the group drank beer and played pool. Shortly before midnight the group left the bar, stopped by a convenience store and purchased two or more six-packs of beer, and went to appellant’s apartment in Trevino’s car. There the men played dominoes (with Trevino and deceased continuing to drink beer and appellant drinking milk) until around 4 a. m. The women listened to music for a while before Carrie Trevino went to sleep on appellant’s bed.

Macio Trevino agreed to drive the deceased and Williamson to their home, intending to return for his wife. Macio and Williamson went down the stairs of appellant’s garage apartment and seated themselves in Trevino’s car. Then, according to appellant’s testimony, deceased declined to leave but finally did so and appellant followed him down the stairs to lock the door as he left. Deceased then began beating and kicking on the door, breaking the wooden frame and the glass, in an effort to regain entry. After deceased had kicked out a part of the door, Trevino and Williamson heard gunshots but neither knew that deceased had been shot until he got into the car and they saw blood. They immediately headed for the hospital and deceased died shortly after arrival at the hospital.

Carrie Trevino said that she was sleeping when she heard gunshots and awoke to see appellant standing outside the bedroom on a balcony overlooking the front door and driveway.

Appellant testified that deceased became angry when appellant refused to leave with the other members of the group; that after he had locked the door at the bottom of the steps, he saw deceased kick out the door and reach for the inside lock through the hole he had made in the door. He testified that he was afraid that the deceased was going to get inside and beat him up again. Appellant fired down the stairs at the deceased but, when the shots did not stop the deceased from trying to get inside, he went through the bedroom door to the balcony and “shot down on the ground” but “didn’t shoot at him.”

Dr. DiMaio testified that the deceased died of four gunshot wounds penetrating his neck and upper chest.

The court charged broadly upon the law of self defense following § C-9.32A, “New Texas Penal Code Forms,” Morrison & Blackwell, p. 110 (1973), and applied the law to the facts as set out in the accompanying footnote. The jury was instructed that regardless of when or where the fatal shots were fired defendant should be acquitted if he was acting in self defense. The requested charge was merely repetitious of that given in the main charge. As stated in Aranda v. State, 506 S.W.2d 221, 225 (Tex.Cr.App.1974): “When the charge refused is substantially the same as that given by the court, no harm is shown.”

Moreover, we note that under the requested charge, the defendant’s use of deadly force would be justified against any use or attempted use of unlawful force by the deceased.

As stated in the Practice Commentary following V.T.C.A., Penal Code, Section 9.32:

“Section 9.32 restores the issue of excessive deadly force to Texas law: if the actor can protect himself short of killing, for example, he must do so on penalty of forfeiting his justification for the unnecessary portion of the deadly force used.”

The trial court’s charge was sufficiently broad to protect all of appellant’s rights and no error was committed in refusing the requested charge. The judgment of the trial court is affirmed.

Opinion approved by the Court.

      . The requested charge read: “You are instructed, in connection with the right of self-defense, that if the defendant was acting in self-defense when he opened fire at the deceased, then he would have a right to continue firing his pistol at deceased so long as it reasonably appeared to him, at the time, as viewed from his standpoint alone, that all danger had not passed.”

      . The court applied the law to the facts in this manner:
      “Now, therefore, bearing in mind the foregoing definitions and instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, Reynaldo Domin-quez, in the County of Dallas and State of Texas on or about the 16th day of February, 1974, did then and there intentionally or knowingly kill Steven Alvarez by shooting him with a gun; but you further find from the evidence or have a reasonable doubt thereof that the defendant reasonably believed, as viewed from his standpoint alone that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful force by the said Steven Alvarez; and that at such time a reasonable person in the defendant’s situation would not have retreated, you will acquit the defendant and say by your verdict ‘not guilty’.”


author: ODOM, Judge. DOUGLAS, Judge

text:
    Beverly Louise PITTMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 50791.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.

      William G. Rosch, III (Court-appointed on appeal), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Jack Bodiford, Asst. Dist. Attys., Houston, 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 conviction for robbery by assault under our former Penal Code. A jury assessed punishment at ten years.

At the outset we are confronted with a fundamentally defective indictment, the charging portion of which alleges that appellant did unlawfully:

“assault Terry P. White hereafter styled the Complainant, and did by the assault, by violence, and by putting the Complainant in fear of life and bodily injury, fraudulently and against the Complainant’s will take from the person and possession of the Complainant money with the intent to deprive the Complainant of the value of the property and to appropriate it to the Defendant’s use.”

Although the indictment sufficiently alleges the possession of the property taken, the ownership of that property is nowhere alleged. Hence, the indictment is fundamentally defective and cannot support a conviction for robbery by assault. Bouie v. State, Tex.Cr.App., 528 S.W.2d 587; Lucero v. State, Tex.Cr.App., 502 S.W.2d 128; see 5 Branch’s Ann.P.C. (2d ed.), Sec. 2584 at 19, and authorities there cited.

The judgment is reversed and the prosecution ordered dismissed.

DOUGLAS, Judge

(dissenting).

It is unfortunate that the majority refuses to correct one of its most obvious errors in the history of this Court in requiring the State to allege and prove who owned the property when an allegation of who possessed the property in a robbery case is all that is required under the statutes passed by the Legislature. See Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975), and the dissenting opinion. The old decisions were based upon the fallacious reasoning that one could not be convicted for robbery if he took his own property from another with a gun. This part of the unwritten law of the West is or should be past history. One can be so convicted when the person in possession of the property has a greater right to possession than the owner.

If an owner of a painting lives in New York and a robber takes the painting from one who rightfully possesses it in a museum in Texas, what difference should it make who owns the painting? The violence and robbery would be committed against the person in Texas. Would the New York citizen have to testify that he did not give consent to the robber to use a pistol and take the painting? The previous erroneous court-made rule is not sufficient in itself to require such an error to be followed blindly. Two of the majority would change a rule and hold that previous decisions by this Court should not be followed in determining the admissibility of statements made after arrest in construing Article 38.22, V.A.C.C.P., and its predecessors. See the dissenting opinion in Butler v. State, 493 S.W.2d 190, 199 (Tex.Cr.App.1973), where it is stated in a footnote: “Where this Court recognizes a genuine need for change, the overruling of a long line of cases becomes only a secondary consideration. See Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972).” If they are ready to overrule seventy or eighty years of decisions construing that statute, why are they not ready to overrule a few cases with a much more erroneous holding. Another court rule of long standing concerning admissibility of photographs has been changed since these two members have been on the Court. See Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972).

One member of the majority wrote correctly when he stated:

“Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged in either.”

In the same case, the wrong owner was alleged but this Court held that it made no difference, but it was the possessor that had to be proved. See Clark v. State, 527 S.W.2d 527 (Tex.Cr.App.1975). If that opinion was good in 1975 then why is it not good in 1976? Shouldn’t the trial judges and lawyers be entitled to the reasons why that case does not apply?

According to .the Clark holding, it is immaterial who is alleged to be the owner, for if there is proof of some owner (not the one named in the indictment) the case is not reversed. In other words the indictment as to ownership was held to be meaningless because the allegation of ownership did not have to be proved as alleged.

Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973), cited by the majority, is the main case relied upon in the erroneous decision in Bouie. The Lucero opinion states that ownership was not alleged. The indictment was not set out in the opinion. In reading that opinion, one cannot tell that there was a good allegation that the property was taken by the robber from the possession of the person assaulted. The basis (if there ever was a valid one) for the old decisions that one could not be guilty of robbery in taking his own property is no longer Valid.

In the opinion on motion for rehearing in Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), many previous holdings of this Court were overruled even if in dictum. There were at least some reasons to retain the old rules in those cases but better reasons dictated that they be overruled. There is no reason to retain the rule in Lucero, Bouie and in the present case. For further authorities see the dissenting opinion in Bouie.

Many future cases will no doubt be reversed upon the same ground, but this writer will not write a dissent to those pending on appeal but will be ready to change the erroneous decisions when two other judges are willing to do so.

If the majority should hold that robbers who have been finally convicted upon indictments or informations which do not contain allegations of the judge-made rule or judicial amendment to the robbery statute, there will be further dissents.

This conviction should not be reversed.