author: WALKER, Judge.

text:
    Eddie Lee BOLTON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Aug. 16, 1979.
    Permission to Appeal Denied by Supreme Court Oct. 29, 1979.

      Charles E. Baucum, Asst. Public Defender, Memphis, for appellant.

      William M. Leech, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, Kenneth R. Roach, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

WALKER, Judge.

Convicted of robbery by means of a deadly weapon and sentenced to 30 years’ imprisonment, Eddie Lee Bolton appeals to this court, first challenging the sufficiency of the evidence to sustain the jury’s verdict. At issue is whether or not the testimony of an accomplice is sufficiently corroborated.

The state’s evidence showed that on August 27,1977, Dick and Teen Yee, owners of Ford Road Grocery in Memphis, were robbed of approximately $500 by three young persons with a sawed-off shotgun. Although Mr. and Mrs. Yee were ordered to lie on the floor and not to look at the robbers, they were able to give officers a general description of their clothing. At trial they identified an old sawed-off shotgun with black tape as the weapon.

Two days later officers arrested the appellant along with Jesse James Dean, Jr., and Abraham Mitchell on another charge. In a search of the appellant’s automobile at that time the officers found the shotgun later identified as that used in this robbery.

Jesse James Dean, Jr., a juvenile, testified that the appellant was the driver of the get-away car on the. occasion of the robbery; that the appellant planned the robbery and took him (Dean) and two others there and waited for them in the appellant’s car. Dean said that he owned the shotgun, and that he was now confined at Taft Youth Center for his part in the robbery.

The appellant did not testify or offer any evidence.

Slight circumstances may be sufficient to furnish the necessary corroboration of an accomplice’s testimony. Here the shotgun used in the robbery was found in the appellant’s automobile two days after the crime. Under the rules laid down in McKinney v. State, 552 S.W.2d 787 (Tenn. Cr.App.1977), the evidence sufficiently corroborates the testimony of the accomplice.

The appellant complains that the court did not instruct the jury on corroboration of an accomplice. At the close of the evidence, in response to inquiry from appellant’s counsel, the court informed counsel for both sides what he intended to charge the jury and asked the appellant’s counsel if he had anything further. The appellant made no request for additional instructions. In the absence of a special request, the trial judge did not err here. Cole v. State, 187 Tenn. 459, 215 S.W.2d 824 (1948).

The appellant next attacks the search of the automobile in which the shotgun was found, saying that the search violated both the state and federal constitutions. We examine the facts which led to the search which were presented at the jury-out hearing.

On August 29 Officer Johnson and his partner were stopped by two women who reported that they had been raped and robbed by three men using a sawed-off shotgun. As the officers drove the women around looking for suspects, the women pointed out the appellant’s car as being the one in which their assailants had been riding.

After taking the women back to the place where they had found them, the officers returned to the car and began a visual examination of its outside. A drive-out tag had been issued in the appellant’s name. When three young persons soon approached the car, the officers asked them their names, ages and addresses because they appeared to be minors and it was past the curfew hour. All three denied knowing anything about the car. The appellant also denied its ownership although he had given the officers his correct name. The three matched the general description given to the officers by the women. The officers placed them under arrest and returned the women to the scene. The women promptly identified the three as the ones who had raped and robbed them.

Before having the car towed away, the officers conducted an inventory search in which they located the shotgun. It was reasonable for them to believe that they would there find the weapon the women had described.

At the suppression hearing the appellant questioned whether an inventory was actually made. We find that this was a valid search whether or not an inventory was made. A well recognized exception to the warrant requirement is that a search may be conducted if an officer has probable cause and there are exigent circumstances. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975; 26 L.Ed.2d 419 (1970); Fuqua v. Armour, 543 S.W.2d 64 (Tenn.1976); State v. Hughes, 544 S.W.2d 99 (Tenn.1976). In this case the officers had'probable cause to believe that a sawed-off shotgun was in the car. Exigent circumstances also existed. The automobile search was valid.

The appellant also complains because the trial judge permitted the shotgun to be introduced as an exhibit for identification by Mr. and Mrs. Yee prior to a hearing on its admissibility. While this is not the better practice, we find no error under these circumstances in view of our determination that the evidence was later properly admitted. If there is any doubt as to the admissibility of tangible evidence, its display and tender should be made outside the presence of the jury. See ABA Standards Relating to the Prosecution Function, Sec. 5.6(c), Presentation of Evidence.

In his attack on the admissibility of the shotgun, the appellant says that the court erred by refusing to hear his motion to suppress prior to trial. He cites Tenn.R. Crim.P. 12(e) to the effect that such motions shall be determined before trial, unless the court, for good cause, orders that it be deferred. This motion was filed long before trial and the defense counsel asked . for a ruling before the trial. Without giving any reason, the trial court declined to hear it then. Rule 12 contemplates that such motions be passed upon before trial unless there is good cause to defer it. The record shows no reason for the trial judge’s action. In most cases it is to the interest of the court and all parties to dispose of similar motions in advance of trial. While the trial judge erred in failing to show good cause, if that were present, in view of the admissibility of the evidence, the timing of the hearing was not prejudicial.

Bolton insists that the court erred by refusing to permit counsel to question prospective jurors as to whether they would be prejudiced because he was in jail, unable to make bond. The trial judge has wide discretion in the scope of voir dire examination of the jury. Smith v. State, 554 S.W.2d 648 (Tenn.Cr.App.1977). We find no abuse of that discretion. Further, Bolton did not request that he be tried in civilian clothing. Under the reasoning of Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), he cannot claim prejudice.

All assignments are overruled and the judgment is affirmed.

O’BRIEN and DAUGHTREY, JJ., concur.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    Wayne K. FARR, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Nov. 21, 1979.
    Permission to Appeal Denied by Supreme Court Dec. 31, 1979.

      Frank V. Williams, III, Rockwood, for appellant.
    William M. Leech, Jr., Atty. Gen., James A. DeLanis, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, Edward P. Bailey, Jr., Asst. Dist. Atty., Lenoir City, Charles Hawk, Asst. Dist. Atty., Kingston, for appellee.
   OPINION

TATUM, Judge.

The defendant, Wayne K. Farr, was sentenced to serve ten years in the penitentiary for second-degree murder. This prosecution arose from the death of Mr. P. G. Shrout as a result of being struck by a truck operated by the defendant. On this appeal, the defendant insists that the evidence does not support his conviction of second-degree murder. He also insists that the trial judge erred in restricting his argument to the jury. After considering the issues, we affirm the conviction.

The facts established that at about 1:30 o’clock P.M., on 26 July 1978, the defendant was operating his truck across the “Old Bridge” in the city of Harriman at a speed of 25 to 30 miles per hour. There is another road forming a junction at the end of the bridge and it is necessary to make a 90 degree turn at the end of the bridge. When the defendant attempted to make a turn to the right at a speed of 25 to 30 miles per hour, his left door flew open and he fell from the truck. Before Leonard Gallaher, the passenger in his truck, could grab the steering wheel, the truck continued to the right and struck Mr. Shrout, who was sitting in a yard, killing him.

Officer Paul C. Carnahan investigated the accident and talked with the defendant at the scene. Officer Carnahan testified, that he “could smell alcohol on him [the defendant], and also he did not stand on his own free will, and his speech was slurred.” The officer then arrested the defendant for driving while intoxicated and reckless driving.

The defendant’s ex-wife, Reba Farr, testified that the defendant and Gallaher came to her residence shortly after noon to catch chickens to give to Gallaher’s mother. At that time, according to Reba Farr, the defendant was “drinking heavily.” She was present at the pen where the defendant was catching chickens and observed him “staggering around over the lot and cursing, and everything.” She smelled the odor of alcohol on his breath. When she asked him if he had been drinking, he first denied it, but after an argument about the matter, he admitted to her that he had consumed “a few beers.”

The defendant, testifying in his own behalf, admitted that he had split a six-pack of “tall boys” with a co-worker between about 9:30 and 10:30 that morning, but stated that he had drunk nothing since. He and other witnesses denied that he was intoxicated at the time he fell out of his truck. He stated that the argument with his ex-wife grew out of her request that he deliver the chickens in the automobile rather than in the truck.

There is no conflict in the following evidence: The defendant’s truck was a 1964 Chevrolet in very poor condition. The door latches on both doors would not function and the defendant had placed slide latches, ordinarily used for screen doors, on the truck. The latches operated with a sliding bolt, were rusty and dilapidated, and would frequently vibrate loose when the truck was running. The latch had vibrated loose and the driver’s door had opened previously while the defendant was driving the truck; also, he was aware that this had occurred while other persons were driving the truck.

The defendant further testified that the bridge was narrow and that at the end of it there was a “short, steep curve and you can’t go around it very fast.” He testified that he knew the dangerous condition of the door when he leaned against it in making the right turn. When he leaned against the door in the turn, it opened and he fell out of the truck.

Malice, either express or implied, is an essential element of the crime of second-degree murder. T.C.A. § 39-2401-39-2403. The requisite element of malice may be, and in most vehicular homicide cases, must be, implied from the surrounding circumstances. State v. Johnson, 541 S.W.2d 417, 418 (Tenn.1976). The criminal intent necessary to sustain a conviction of murder in the second degree is supplied from an unlawful act which is malum in se. Griffin v. State, 578 S.W.2d 654, 656 (Tenn.Cr.App.1978). Driving an automobile while under the influence of an intoxicant is ma-lum in se. Griffin v. State, supra. The driving of a motor vehicle in wilful or wanton disregard for safety of persons or property (T.C.A. § 59-858) is also malum in se. T.C.A. § 59-858(a); State v. Johnson, supra.

We find sufficient evidence upon which a rational trier of fact could be convinced beyond a reasonable doubt that the defendant was driving while intoxicated. We also find that a rational jury might be convinced beyond a reasonable doubt that aside from the defendant’s intoxication, his conduct in operating the truck in the manner and under the circumstances described above, could constitute implied malice. This latter conduct implied such a high degree of conscious and wilful recklessness as to amount to that malignity of heart constituting malice. Though unintentional, the killing was murder. Tarvers v. State, 90 Tenn. 485, 16 S.W. 1041, 1044 (1891); Owen v. State, 188 Tenn. 459, 221 S.W.2d 515, 519 (1949). We must overrule the first assignment of error. Rule 13(e), Tennessee Rules of Appellate Procedure; Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The defendant says that the trial judge erred in sustaining the State’s objection to his. argument distinguishing the legal standards of civil liability from the standards of criminal liability in motor vehicle cases. The context of the record upon which this assignment is based, is as follows:

[MR. WILLIAMS] . . . Ladies and gentlemen the Assistant Attorney General has made a lot of the fact that Mr. Shrout is dead. And, yes he is. And this man may well end up being at least civilly liable for the man’s injuries, but .
MR. BAILEY: Your Honor, the State objects to argument And (sic) submits to the Court that that is improper. That any civil liability has nothing to do with what goes on in this Court.
MR. WILLIAMS: We are talking about a different standard here .
MR. BAILEY: Your Honor, we are talking about what is proper and what is improper in argument before the jury.
THE COURT: Well I am going to sustain the objection from the standpoint that I am going to caution you not to get into things outside the facts of this case. What may or may not take place in a different proceedings (sic) doesn’t have any thing to do with this.

As we read the foregoing, we do not understand that the trial judge intended to prevent argument distinguishing the standards of conduct in civil and criminal cases. In .any event, the defendant afterwards, without objection, told the jury:

. And the Court is going to tell you that the State has to prove that this man was in fact operating that truck in a wanton manner, with a reckless disregard for the life and property of others to make him criminally liable. In other. words he just couldn’t have been negligent, he has got to be wantonly, and reckless, either expressly or impliedly operating that truck with disregard for the life and property of others. And ladies and gentlemen that is the point.

While the trial judge’s original ruling was qualified and not entirely clear to us, counsel argued the difference between criminal and civil negligence. The latter-quoted argument stated clearly that ordinary negligence was insufficient to convict. The trial judge also covered this proposition in his instructions to the jury. Any error was harmless. Rule 36(b), Rules of Appellate Procedure.

The judgment of the trial court is affirmed.

WALKER, P. J., and DUNCAN, J., concur.


author: PER CURIAM.

text:
    Ray YATES et al., Petitioner, v. MOBILE AMERICA SALES CORPORATION and Ford Motor Credit Company, Respondents.
    No. B-8589.
    Supreme Court of Texas.
    Oct. 31, 1979.
    Rehearing Denied Jan. 16, 1980.
    Provost, Umphrey, Doyle & McPherson, • Jon B. Burmeister, Port Arthur, for petitioner.
    Orgain, Bell & Tucker, Jo Ben Whitten-burg, Beaumont, Baker & Botts, Walter Conrad, Jr. and Randall A. Hopkins, Houston, Lamson & Plessala, Frank M. Lamson, Port Arthur, for respondents.
   PER CURIAM.

The trial court rendered a take nothing judgment against petitioners on their claim under chapter seven of the Consumer Credit Act. See Tex.Rev.Civ.Stat.Ann. art. 5069-7.01 to 7.10 (Vernon 1971). The court of civil appeals affirmed this judgment, holding that the mobile home in question was not a motor vehicle within the definition of § 7.01(a) of the Act because it was not a mobile home designed and used primarily to transport persons or property on a public highway. 582 S.W.2d 509.

In refusing petitioners’ application for writ of error with the notation no reversible error, we do not intend to exclude installment sales of any mobile homes from the Act’s regulation. A mobile home that does not meet the definition of motor vehicle under § 7.01(a) is a “good” under § 6.01(a) of the Act, ahd its credit sale is regulated by chapter six. See Tex.Rev.Civ.Stat.Ann. art. 5069-6.01 to 6.09 (Vernon 1971 & Supp. 1978-1979). See also 1979 Tex.Sess.Law Serv., ch. 672, § 39, at 1576 (Vernon) (after August 27, 1979, credit sales of “manufactured homes” will be regulated by chapter 6A).

Petitioners’ application for writ of error is refused, no reversible error.


author: BARROW, Justice.

text:
    Ex parte William Randall JOHNSON, Relator.
    No. B-8603.
    Supreme Court of Texas.
    Dec. 12, 1979.

      Hand, Anderson & Johnson, David W. Anderson, Marlin, for relator.
    Tom Moore, Waco, for respondent.
   BARROW, Justice.

Relator, William Randall Johnson, brought this original habeas corpus proceeding after the district judge held him in contempt and committed him to jail for thirty days because of his failure to comply with that portion of the divorce decree which required him to deposit in the registry of the court for the benefit of his former wife “one-half of the proceeds of his monthly check from the Veterans Administration Retirement Fund.” Relator first sought to secure his release by application for writ of habeas corpus to the court of civil appeals, but that court denied his application. 583 S.W.2d 660.

The principal question presented is' whether the supremacy clause of the United States Constitution preempts enforcement by contempt of an order by the state court dividing a spouse’s entitlement to disability compensation benefits from the Veterans’ Administration for service-connected disabilities authorized by Title 38 of the United States Code. We hold that under the terms of this statute, these benefits are not to be treated as “property” and future benefits are not subject to division upon divorce as property. Therefore, under the supremacy clause the district court cannot imprison relator for violating such order. Accordingly, relator is ordered discharged.

Relator entered the United States Navy in 1947 as an enlisted man. He and Elizabeth Johnson were married in 1951. In July 1959, relator was given a medical discharge from the Navy. He was suffering lateral sclerosis and arthritis of the spine which were service connected and 100 percent disabling at the time of his discharge. He was entitled to and began receiving disability retirement pay. However, in March 1970, relator executed a waiver of his retirement pay in .order to receive the larger disability compensation benefits in question from the Veterans’ Administration. The waiver and exchange of benefits is provided for in 38 U.S.C. § 3105. These benefits are unrelated to length of service, but are based solely upon disability. Relator is not entitled to longevity retirement. Although he is classified at the present time as 100 percent disabled, this rating is subject to periodic review by the Veterans’ Administration and the amount of his compensation is based on his condition at the time of review. 38 U.S.C. §§ 314, 334.

The payment to relator was not an earned property right which accrued to him by reason of his years of service in the Navy, but was for a service-connected disability. It has been held that veterans benefits are gratuities and establish no vested rights in recipients, but may be withdrawn at any time and under any condition Congress may choose. Milliken v. Gleason, 332 F.2d 122 (1st Cir., 1964), cert. denied, 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703. In determining the nature of such an award by the Veterans’ Administration, it is provided by 38 U.S.C. § 211(a) as follows:

“[Ejxcept as provided, . . . the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.”

It is thus apparent that the compensation to relator is a payment personal to him from the government for service-connected disease sustained in the military service and is not the result of an earned property right. Ramsey v. Ramsey, 474 S.W.2d 939 (Tex.Civ.App.—Eastland 1971, writ dism’d).

Our precise question is whether the supremacy clause of the United States Constitution preempts a division of such benefits. 38 U.S.C. § 3101(a) provides in part:

“Nonassignability and exempt status of benefits
“Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the Supreme Court held that benefits payable under the Railroad Retirement Act and the expectation of ultimately receiving future benefits under the Act are not subject to division by a state court as “property” upon divorce.

It was further held that the California state court was precluded from applying its community property law to award the wife an interest in the husband’s expectation of ultimately receiving benefits under the Act since, under the supremacy clause, such an award would impermissibly conflict with the provisions of the Act, in that (1) to order the husband to pay the wife an appropriate portion of his benefit, or its monetary equivalent, as he received it, would (a) run contrary to the language and purpose of § 231m, which exempts benefit funds from legal process and is meant to insure that benefits actually reach the intended beneficiary, and (b) mechanically deprive the husband of a portion of the benefit Congress, by cutting off a divorced spouse’s benefits in 45 U.S.C. § 231d(c)(3), has indicated is designed for the employee spouse alone, and (2) to order an offsetting award to the wife of present community property to compensate her interest in her husband’s expected benefit would (a) improperly “anticipate” benefits payment, in violation of § 231m, by allowing the wife to receive her interest before the date Congress has set for any interest to accrue, and (b) frustrate the statutory policy of protecting the employee since the award would impair the husband’s economic security.

In Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950), the Supreme Court concluded that the California community property law conflicted with certain provisions of the National Service Life Insurance Act which provided that payments to the named beneficiary “shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” 38 U.S.C. § 3101(a). It was held that the judgment of the California court which awarded one-half of the insurance proceeds to the serviceman’s widow in accordance with that state’s community property laws, nullified the soldier’s choice and frustrated the deliberate purpose of Congress. It was therefore set aside. This holding was cited with approval in Hisquierdo v. Hisquierdo, supra.

In Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979), we were presented with the question of whether the supremacy clause of the United States Constitution preempted a division of a spouse’s entitlement to benefits under the Railroad Retirement Act. We held that our disposition of the case was controlled by the Hisquierdo decision and that the award of 40 percent of the monthly railroad retirement benefits to the non-employee spouse as a division of the property of the parties was. erroneous and must be reversed.

In Perez v. Perez, 587 S.W.2d 671 (Tex.1979), we held that military readjustment benefits paid to a spouse pursuant to a federal statute were not community property under Texas law. In doing so, we determined that the legislative history of the statute providing such benefits to an involuntarily released member of the Army Reserve indicated a Congressional intent to provide a non-earned gratuity. In accordance with the holding in the Hisquierdo case, we carried out such Congressional intent and classified these benefits as a gift under Texas property rules to comport with the stated federal objectives.

The Hisquierdo holding is determinative of the question presented here although our case involves disability compensation benefits from the Veterans’ Administration rather than railroad retirement benefits. These benefits, like those provided by the Railroad Retirement Act, are not contractual. Congress may alter and even eliminate them at any time. Congress expressed strong intent in both statutes that the benefits were intended for the use of the recipient. This is clearly seen in the statutory provisions relative to a veteran’s dependents. A veteran may be entitled to an additional amount of compensation for a spouse, child, and/or dependent parent where the veteran is entitled to compensation based on a disability evaluation. 38 U.S.C. §§ 315, 335. However, upon divorce, this amount of additional compensation is eliminated. 38 U..S.C. § 3012(b)(2). This reduction was made here following the divorce.

Both statutes contain a strong prohibition against attachment and anticipation of the benefits. Section 231m of the Railroad Retirement Act provides in part that such payments shall not be subject to any “legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated . . ..” Section'3101(a) of Title 38 provides in part that the disability compensation benefits shall not be assignable and “shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

We hold that the award to relator’s spouse of 50 percent of his anticipated future disability benefits from the Veterans’ Administration conflicts with the clear intent of Congress that these benefits be solely for the use of the disabled veteran. The diversion of future payments as soon as they are paid to him by the Veterans’ Administration amounts to a seizure of the veteran’s benefits for community property purposes and is in conflict with the exemption provision of the statute. Accordingly, relator may not be imprisoned for failing to make these preempted payments to his former wife.

Relator is ordered discharged.

GARWOOD, J., not sitting.

      . This order does not relate to child support payments. Cf. 42 U.S.C. § 659.

      . U.S.Const. art. VI, cl. 2.


author: McGEE, Justice.

text:
    Raymond Eugene BROD, Relator, v. Honorable Andrew Z. BAKER, Judge, Respondent.
    No. B-8777.
    Supreme Court of Texas.
    Dec. 19, 1979.
    Simpson & Burwell, Inc., M. Bruce Fort, Texas City, for relator.
    Jean E. Hosey, Galveston, for respondent.
   McGEE, Justice.

This is an original mandamus proceeding in which relator, Raymond .Eugene Brod, seeks an order directing the Honorable Andrew Z. Baker to transfer a petition to modify an order appointing him-managing conservator of his two minor daughters. The petition to modify was filed by Beverly June Howell, formerly Beverly June Brod, who is the mother and possessory conservator of the two girls.

Raymond and Beverly Brod were divorced in 1972. Custody of their two daughters was originally granted to Beverly Brod, now Howell, but that order was modified by an order of June 18,1976 in which Brod was made managing conservator. The girls have resided with their father in Waco, McLennan County, since June of 1976. On July 19, 1979, during a visitation period, Howell filed a petition to modify the June 1976 order. This petition was filed in the Family District Court of Galveston County, 306th Judicial District, the court of continuing jurisdiction. Howell alleged a change of circumstances, that retention of the children by Brod was injurious to their welfare, and that her appointment as managing conservator would be an improvement for the children.

Brod filed a writ of habeas corpus seeking to regain possession of the children. In response to Howell’s petition to modify con-servatorship, Brod filed a motion to transfer the proceedings to McLennan County. After a hearing, the judge, Andrew Z. Baker, denied the writ of habeas corpus and appointed Howell as “temporary conservator” pending the hearing on Howell’s motion to modify conservatorship. That action is not challenged here. With respect to the petition to modify, Judge Baker denied Brod’s motion to transfer.

Venue in suits affecting the parent-child relationship is governed by section 11.04 of the Family Code. That section provides in pertinent part:

“§ 11.04. Venue.
“(a) Except as otherwise provided in this subtitle, a suit affecting the parent-child relationship shall be brought in the county where the child resides.
“(c) A child resides in the county where his parents (or parent if only one parent is living) reside, except that:
“(1) if a managing conservator has been appointed by court order or designated in an affidavit of relinquishment, or if a custodian for the child has been appointed by order of a court before January 1,1974, the child resides in the county where the managing conservator or custodian resides; . . . ”

Tex.Family Code Ann. § 11.04 (Vernon 1975 & Supp.1979). Transfer of proceedings to the county in which venue is proper is addressed in article 11.06 of the Code, which provides in part:

“§ 11.06. Transfer of Proceedings.
“(b) If a petition or a motion to modify a decree is filed in a court having continuing jurisdiction of the suit, the court, on the timely motion of any party, and on a showing that venue is proper in another county or that a suit for dissolution of marriage has been filed in another court, shall transfer the proceeding to the county where venue is proper or to the court . where the suit for dissolution of the marriage is pending. However, if the basis of the motion is that the child resides in another county, the court may deny the motion if it is shown that the child has not resided in that county for at least six months. In computing the period of time during which the child has resided in that county, the court shall not require that the period of residence be continuous and uninterrupted but shall look to the child’s principal residence during the said six-months period.”

Tex.Family Code Ann. § 11.06 (Vernon 1975 & Supp.1979).

In Cassidy v. Fuller, 568 S.W.2d 845 (Tex.1978) this court held that “Section 11.06(b) is mandatory in its provision that ‘. the court, on the' timely motion of any party, and on a showing that venue is proper in another county . . . shall transfer the proceeding to the county where venue is proper . . . ” Id. at 847. We hold that Cassidy v. Fuller is controlling here. At the time of the motion to transfer, Brod was managing conservator of the girls. Howell concedes that the girls have resided with Brod continuously since June 1976. Venue was proper in McLennan County and it was the mandatory duty of Judge Baker to transfer the proceedings to McLennan County. This duty obtains regardless of the temporary order deemed appropriate by Judge Baker in the habeas corpus proceeding. The question of a permanent modification in managing conserva-torship is properly triable in McLennan County.

It is expected that Judge Baker will transfer the conservatorship proceedings in accordance with this opinion; the writ of mandamus will issue only in the event he does not do so.

      . The validity of the temporary order issued in the habeas corpus proceeding is not before us. Section 14.10(c) of the Family Code authorizes the court to issue temporary orders if there is a “serious immediate question” concerning the child’s welfare, Tex.Fam.Code Ann. § 14.10(c) (Vernon 1979). We note that the habeas corpus order did not purport to modify the managing conservatorship order of June 1976, and thus did not contravene the policy against using habeas corpus as a “vehicle to relitigate custody.” See Trader v. Dear, 565 S.W.2d 233 (Tex.1978); Strobel v. Thurman, 565 S.W.2d 238 (Tex.1978).


author: DOUGLAS, Judge.

text:
    Ralph WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 57785.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 28, 1979.
    Rehearing Denied Jan. 9, 1980.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, Jan E. Potts and David C. Schick, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Ralph Wright appeals his conviction for aggravated robbery. Punishment was assessed by the jury at fifty years.

Wright contends that his alibi witness was improperly impeached on a collateral matter with evidence that showed an extraneous offense. He also challenges the. sufficiency of the evidence to prove that a deadly weapon was used.

Oscar Smith, a college student, was working at an independent service station on the evening of December 23, 1976. Appellant approached Smith, pulled a weapon which Smith referred to as a “gun”, “revolver” and a “pistol”, at different places in the record. Appellant demanded the money which Smith gave him. Appellant then drove off in his car.

Wright contends that this evidence does not show that a “deadly weapon” was used. The use of a “deadly weapon” is an essential element of aggravated robbery. V.T.C.A., Penal Code, Section 29.03. A firearm is per se a deadly weapon. V.T.C.A., Penal Code, Section 1.07(a)(ll)(A). Appellant argues that evidence is sufficient only if the witness uses the term “firearm” or otherwise proves the use of a “deadly weapon” under one of the alternative definitions. We disagree. Testimony using any of the terms “gun”, “pistol” or “revolver” is sufficient to authorize the. jury to find that a deadly weapon was used.

Wright next complains of the use of a prior conviction to impeach his alibi witness on a collateral matter. Iris Wright, appellant’s mother, testified that appellant was at home with her at the time of the robbery. As part of the preliminary questions asked of her on direct, the following exchange occurred:

“Q. Mrs. Wright, back in December of 1976, which is just December that we have just had, was Ralph living with you at that time?
“A. Yes, he was.
“Q. All right, how long had he been living with you there?
“A. Well, he had been living with me, I would say about—I would say about six or seven years.”

On cross-examination, she was - questioned further on this matter:

“Q. Nine years he’s been living in your home?
“A. Yes.
“Q. Did he live in your home in November of 1976?
“A. Yes.
“Q. And October?
“A. Yes.
“Q. And September?
“A. Yes.
“Q. Where did he live in June and July and August of 1973, did he live at home then?
“A. Yes.
“Q. Are you sure he was living at home then?
“A. Yes, uh-huh, he was.
“Q. Starting in June, the last part of June of 1973—”

At this point, appellant objected and a hearing was held outside the presence of the jury. The State then elicited from Mrs. Wright that her son was not living with her from the summer of 1973 until sometime in 1975 because he was in prison.

In Bryant v. State, 471 S.W.2d 66 (Tex.Cr.App.1971), we were confronted with a similar situation. Bryant’s alibi witness, James Duncan, testified that he and Bryant were in Arkansas at the time of the robbery. He also testified that he first met appellant in September, 1969 at a Dallas bar owned by Duncan. Duncan was asked if he knew that Bryant was in the penitentiary in September, 1969, and was not released until October 14, 1969. In overruling Bryant’s contention, we held, “The question was proper to test the knowledge and credibility of appellant’s witness.”

In the instant case, Mrs. Wright established an alibi. Her credibility and objectivity were seriously questioned when it was shown that she made a blanket statement which was factually incorrect. This impeachment was probative.

Also, Mrs. Wright’s direct testimony tended to create a false impression with the jury. If appellant had lived with his mother for several years prior to this incident, the jury could infer that he was a law-abiding and fairly respectable citizen. His trip to the penitentiary casts Mrs. Wright’s testimony in an entirely different light.

Mrs. Wright made a factually incorrect statement on direct examination. Impeachment evidence indicated that her objectivity in matters concerning her son was suspect and eliminated a false impression concerning her son. The evidence was relevant and properly admitted.

There is no reversible error. The judgment is affirmed.


author: CLINTON, Judge.

text:
    Mark Allen NASH, Appellant, v. The STATE of Texas, Appellee.
    No. 63675.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 19, 1980.

      Lamar W. Hankins, Bryan, for appellant.
    John M. Barron, Jr., County Atty., Bryan, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Charged with the misdemeanor offense of driving while intoxicated, appellant entered a plea of guilty and, upon that plea, was found guilty by the trial court. Punishment was assessed at thirty days in jail and a $230.00 fine, the former being probated for one year.

In his sole ground of error, appellant contends that the trial court erred in accepting his plea of guilty and assessing punishment involving “imprisonment" absent a knowing and intelligent waiver of his constitutional right to counsel. For. reasons more fully developed below, we overrule this contention and now affirm.

Appellant was arrested for the instant-offense on February 11, 1979 and, shortly thereafter, consented to take a breathalyzer test. The results of that test showed that appellant “blew” a .13, a reading of .10 creating a statutory presumption that the accused is intoxicated. See, e. g., Annis v. State, 578 S.W.2d 406, 407 (Tex.Cr.App.1979). Some eleven hours after taking the breathalyzer test, appellant was brought before the Brazos County Court at Law where he evidenced a desire to “take care of the case today” and pled guilty. The prosecutor read the misdemeanor information to appellant who indicated that he understood the nature of the charges against him. Appellant further stated that he desired to plead guilty, that he wished to waive his right to trial by jury, and that he understood the terms of a form which he had signed denominated “WAIVER OF RIGHT TO AN ATTORNEY AND OTHER RIGHTS AND PLEA OF . GUILTY.” Omitting the formal parts, this form recited that:

“Now comes MARK NASH, the defendant in this cause and represents to the Court the following, to wit:
I know that I have the right to be represented by an attorney in this case and that if I cannot afford to hire an attorney then the Court would appoint an attorney to represent me, and I have no attorney, and I voluntarily waive my right to have an attorney defend me in this case.
Under oath, in writing and in open Court I swear that I understand the charge against me in this cause; that I committed each and every element of the charge alleged; and that I am GUILTY as charged. I specifically waive my right to be tried before a jury and ask the Court to decide all of the issues in this case. I further ask that the Court accept my plea of Guilty and waiver of trial by jury; enter a judgment in this case and proceed to sentence me according to the law and without further delay. I understand my right to appeal this case to the Texas Court of Criminal Appeals and my right to appointed counsel upon appeal if I cannot afford an attorney, and I specifically waive my right to appeal the Court’s decision in this case.”

The foregoing form was signed in open court by appellant and approved by the trial court.

Additionally, the record discloses that pri- or to the entry and acceptance of his guilty plea, appellant signed another form entitled “EXPLANATION OF RIGHTS AND PROCEDURES.” This form explained, inter alia, that an accused has the right to be represented by an attorney up to and including the perfection of an appeal to the Court of Criminal Appeals and that, if the accused could not afford one, an attorney would be appointed without charge by the court. If the accused wanted to act as his own counsel, this form indicated that he had the right to so act but that, if an attorney was otherwise requested, the case would be reset for one week to enable the accused to contact counsel, either appointed or retained. The accused was also notified of his rights under the Speedy Trial Act and that if a reset was requested, it would extend the time limits pursuant to the Speedy Trial Act under which the State could try him. The form outlined requisites of executing a pauper’s affidavit if appointed counsel was requested and then informed the accused that he or she would have to, at this time, decide whether a plea of guilty or not guilty would be entered and whether counsel was desired. Appellant chose the fourth alternative listed, to wit:

“[4] I do not want a lawyer. I understand my right to have a lawyer and want to waive that right. I want to plead GUILTY and finish the case today.” [Emphasis in original]

Appellant signed his name below all of the above.

At the hearing on his motion for new trial, appellant testified that he had no legal training, experience or knowledge relating to: the rules of evidence, the preparation of a defense, compulsory process, cross examination, legal presumptions, or the collateral consequences inherent in waiving the right to an attorney and entering a plea of guilty. Appellant graduated from high school and was employed as an installer of garage doors making approximately $600.00 per month. He was nineteen years of age at the time of the offense and was living home with his parents.

The thrust of appellant’s contention that he did not knowingly and intelligently waive his right to counsel lies in his assertion that “the record below does not show the Appellant’s age, occupation, educational background, previous court experience, etc., so as to show that [his] waiver of the right to counsel was knowing and intelligent, nor was there any showing that Appellant was made aware of the disadvantages of self-representation . . ” Additionally, contends appellant, this record does not indicate that he had been informed of the range of punishment for the offense charged, nor admonished as to the elements of the offense or that a conviction therefor could be utilized for enhancement purposes at a later date.

Appellant is correct in his assertion that the right to counsel, otherwise applicable in misdemeanor cases, is not lost merely because the trial court grants proba- . tion after assessing punishment with a period of confinement in jail. Warr v. State, 591 S.W.2d 832, 835 (Tex.Cr.App.1979). But, as we noted in Warr, supra, this right to counsel may be waived, and it is to this question that we now turn.

There can be no doubt about waiver in this case. This record contains two different forms which advised appellant of his right to counsel, his right to a trial by jury, and his correlative right to waive those rights. Indeed, the form entitled “EXPLANATION OF RIGHTS AND PROCEDURES” goes so far as to define the word “waive” as giving up such a right or not taking advantage of it and putting the “waiver” concept in the context with the right to counsel etc. Appellant signed this and the other form indicating that he knew and understood the aforementioned rights, including his right to counsel and that he wished to waive them and “finish the case today.” Additionally, in open court, he again stated that he knew and understood his rights and that he wished to waive them in entering a plea of guilty. Finally, Fred Maddox, a Brazos County Probation Officer, confirmed his common practice to make sure that an accused in County Court at Law understands that he has the absolute right to an attorney and that such right, consistent with the explanation of the two printed forms alluded to above, was fully explained to the appellant, and that his signature appears on those two forms waiving that and other rights.

Though it is true, as appellant points out in his brief, that he was not fully admonished as to the elements of the offense and the range of punishment involved, this Court has held that the provisions of Article 26.13, V.A.C.C.P., outlining the statutory admonishments that must accompany á plea of guilty, do not apply to misdemeanor pleas of guilty. See Gallegos v. State, 425 S.W.2d 648 (Tex.Cr.App.1968). As regards the elements of the instant offense, we pause only to note that the prosecutor read the information to appellant and that the latter stated in open court that he understood the nature and quality of the charges against him.

Appellant’s reliance on the holdings of Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.1978) and its progeny is misplaced. In those cases, the accused actually acted as his or her own counsel and. chose to enter a plea of not guilty. Whether this appellant would have been qualified to have acted as his own counsel in a contested case is an entirely different question, but we are not called upon today to answer that query. Instead, this record reveals an individual who confessed guilt in the first instance, motivated to do so, in part, by a damaging reading on a post arrest breathalyzer test. It was only after an apparent change of heart that he attempted to advance the contention that he did not knowingly and intelligently relinquish his right to counsel. And as recounted above, this record quite clearly evidences that he did.

We adhere to our earlier holdings that to protect so fundamental a right as the right to counsel we will indulge every reasonable presumption against waiver, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and to this extent the record must clearly show that the accused voluntarily, knowingly, and intentionally waived such right. Jordan v. State, supra; Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App.1977). Here it does.

Accordingly, we conclude from the testimony and exhibits introduced at the hearing on appellant’s motion for new trial and on the record as a. whole that appellant intelligently, voluntarily, and knowingly waived his right to counsel. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); compare Warr v. State, supra.

The judgment is affirmed.

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

      . In selecting the fourth option contained in the form “Explanation of Rights and Procedures,” appellant passed over and thereby rejected the first three, that third reading:
      “(3) I do not want a lawyer. I understand my right to have a lawyer and want to waive that right. I want to plead NOT GUILTY and have a trial.” [Emphasis in original]