text:
    Norman James ZACHERY, Appellant, v. The STATE of Texas, Appellee.
    No. 55088.
    Court of Criminal Appeals of Texas.
    June 8, 1977.
    Robert A. Scardino, Jr., Houston, for appellant.
    Jim D. Vollers, State’s Atty., and David S.McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of attempted rape. Punishment was assessed at imprisonment for ten (10) years.

At the outset we are confronted with a fundamentally defective indictment which requires review as unassigned error “in the interest of justice” under Article 40.09, Sec. 13, Vernon’s Ann.C.C.P.

V.T.C.A., Penal Code, Sec. 21.02, provides:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
“(2) he compels her to submit or participate by any threat, communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm;
“(3) she has not consented and he knows she is unconscious or physically unable to resist;
“(4) he knows that as a result of mental disease or defect she is at the time of the intercourse incapable either of appraising the nature of the act or of resisting it;
“(5) she has not consented and he knows that she is unaware that sexual intercourse is occurring;
“(6) he knows that she submits or participates because she erroneously believes that he is her husband; or
“(7) he has intentionally impaired her power to appraise or control her conduct by administering any substance without her knowledge.
“(c) An offense under this section is a felony of the second degree.”

Y.T.C.A., Penal Code, Sec. 15.01, defines criminal attempt as follows:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
“(b) If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.
“(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
“(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a felony of the third degree, the offense is a Class A misdemeanor.”

V.T.C.A., Penal Code, Chapter 6, provides for culpability generally. Section 6.02 provides:

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
(1) intentional;
(2) knowing;
(3) reckless;
(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”

It is clear from a reading of the definition of the offense of rape in Section 21.02 that it does not itself prescribe a culpable mental state, but one is nevertheless required by Section 6.02 because Section 21.02 does not “plainly dispense with any mental element.” See Braxton v. State, 528 S.W.2d 844 (Tex.Cr.App.1975).

The indictment in the instant case, omitting its formal parts, alleges that on or about April 4, 1975, appellant:

“. . . did then and there unlawfully attempt by force and threats to have sexual intercourse without the consent of Melonee Randall, a female not his wife and hereafter styled the Complainant, by choking her and beating her with his hands . . ..”

The indictment fails to allege any culpable mental state as required by Section 6.02 and is therefore fundamentally defective. See Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr.App.1976); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976); Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977); and compare Price v. State, 523 S.W.2d 950 (Tex.Cr.App.1975); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976). See Ailey v. State, 547 S.W.2d 610 (Tex.Cr.App.1977). Moreover, we have held that an indictment which does not allege an offense against the law is utterly insufficient and any conviction based thereon is void. Ward v. State, 520 S.W.2d 395, 397 (Tex.Cr.App.1975), and cases there cited.

The judgment is reversed and the prosecution under the instant indictment is ordered dismissed.

DOUGLAS, J., dissents for the reasons set out in the dissenting opinion in Bocanegra v. State, 552 S.W.2d 130 (Tex.Cr.App.1977), this day decided.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Keith Alan CHURCH, Appellant, v. The STATE of Texas, Appellee.
    No. 53235.
    Court of Criminal Appeals of Texas.
    June 8, 1977.
    Rehearing Denied June 29, 1977.

      Will Gray, Houston (on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Stu Stewart, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Keith Alan Church was indicted for aggravated rape. He was convicted for attempted aggravated rape. Punishment was assessed by the jury at twenty years. He appeals.

He challenges the sufficiency of the evidence to show that the attempted rape was aggravated. He admits that the evidence would have been sufficient to support a conviction for attempted rape but contends that there was no evidence that he attempted to compel “submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone”, under V.T.C.A., Penal Code, Section 21.03(a)(2).

The record reflects that M.D., the prose-cutrix, lived in a Houston apartment complex with her two children. John Young, an employee of the complex, lived in an apartment nearby with his wife and mother-in-law, Mrs. Erva Harris.

On the evening of November 10, 1974, M.D. left her children with Mrs. Harris and went to a birthday party. When she returned two hours later she parked her automobile near her patio gate. At this time appellant drove up at a high rate of speed and struck another vehicle as he attempted to park.

Before M.D. reached the gate appellant grabbed her from behind. He put his arm around her neck and held an object against her throat. He told her to remain quiet and to come with him to his car. She said she would not go with him and asked him what he wanted. He replied that he wanted to have sex with her. She grabbed the gate but did not scream because she was afraid. He pulled her from the gate and got her between two cars.

M.D. testified that the following occurred after she was on the ground:

“A. Well, we went down on the ground and I was with my head in the gutter and he got on top of me and pulled everything down.
* * * * * ⅜
“Q. What did he do with your garments from your waist down?
“A. He pulled them down, I would say midway from my legs to my ankles.
“Q. At that time had you realized or did you know what he had in his hand?
“A. By that time I had a glance at it and I saw it was a knife.
******
“A. I saw him put it down.
“Q. Okay. How did he get your pants off?
“A. He ripped them.
“Q. What did he do about his clothing?
“A. He started taking off his clothes, undid his belt and, you know, slipped his pants — pulled them down.”

Appellant was on top of M.D. having intercourse for approximately five minutes but was prevented from completing the act by the arrival of John Young and Erva Harris at the scene. Young knocked him off of M.D. Appellant then escaped on foot but left his automobile at the scene.

After the police determined that appellant owned the automobile and arrested him later, M.D., Young and Harris all identified him as the attacker. The knife was found at the scene.

The record also reflects that M.D. suffered a superficial laceration around the neck area, several smaller scratches on one of her wrists, and a bruise over her lower spine. Since there was no serious injury, the State was required to prove that appellant attempted to compel the prosecutrix to submit to rape “by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.” Section 21.-03(a)(2), supra.

There was no evidence of a direct threat to kill or injure M.D. But the jury was authorized to conclude that appellant threatened M.D. with death or serious bodily injury by holding the knife to her throat when he grabbed her. A threat can be communicated by action or conduct as well as verbally. Blount v. State, 542 S.W.2d 164 (Tex.Cr.App.1976); Most v. State, 386 S.W.2d 537 (Tex.Cr.App.1965). And in Twomey v. State, 520 S.W.2d 784, 786 (Tex.Cr.App.1975), we quoted with approval from DeVonish v. State, 500 S.W.2d 800, 802 (Tex.Cr.App.1973), and 4 Branch’s Ann. P.C.2d, Section 1956, page 281, as follows:

“When both force and threats are alleged, and there is evidence of each it is not necessary that either the force or the threats alone measure up to the standard of the statutory definition; the cogency which one contributes to the other may be sufficient to constitute all that is required.”

Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to establish the offense of attempted aggravated rape. Cf. Twomey v. State, supra, and Blount v. State, supra. The evidence that the prose-cutrix still had a piece of cake from the party in her hand when she was thrown on the ground does not negate the evidence of the threat and force to commit rape.

The present case is different from Blount, supra, relied upon by appellant, because the evidence in that case did not show that the knife was exhibited before the intercourse.

Appellant next contends that the indictment is fundamentally defective because it fails to charge the offense of aggravated rape as set forth in Section 21.03(a)(2), supra.

The indictment alleges, in pertinent part, that appellant “did then and there unlawfully, intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death to M_D_, a female not his wife and hereafter styled the Complainant, have sexual intercourse with the Complainant and without the consent of Complainant.”

Appellant argues the indictment is fundamentally defective because it fails to allege that appellant compelled the prosecu-trix to submit to rape. It does, however, allege that appellant by force and threat of imminent infliction of serious bodily injury and death had sexual intercourse with the prosecutrix without her consent. We perceive no material difference between the two allegations. A reasonable reading of the entire indictment is that the prosecutrix was compelled to submit to appellant’s act by force and threats. See Watson v. State, 548 S.W.2d 676 (Tex.Cr.App.1977), and Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977).

Article 21.17, V.A.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

Appellant next contends that the court’s charge is fundamentally erroneous. No objection was made to the charge. His complaint, as we understand it, is that paragraph ten of the charge impermissibly combined the element of force, as set out in V.T.C.A., Penal Code, Section 21.03(a)(1), with the element of threats, as set out in Section 21.03(a)(2), supra. The charge reads, in material part, as follows:

“In this case, you must find from the evidence beyond a reasonable doubt that the defendant attempted to have sexual intercourse with M_ D_ by force and by threatening the imminent infliction of serious bodily injury or death to M_ D_, and before you would be warranted in finding the defendant guilty of attempted aggravated rape, you must be satisfied from the evidence beyond a reasonable doubt that the attempted sexual intercourse if any, by the defendant, was attempted by the use of force and by threatening the imminent infliction of serious bodily injury or death to M_D_and a lack of consent on the part of M_D_
“Now if you find from the evidence beyond a reasonable doubt, that on or about the 10th day of November, 1974, in Harris County, Texas, the defendant, Keith Alien Church, did without the consent of M_D_, a female, and by the use of force and by threatening the imminent infliction of serious bodily injury or death to M_D_, attempt to have sexual intercourse with the said M_D_, who was not then and there the wife of the said defendant then you will find the defendant guilty of attempted aggravated rape.
“Unless you so find beyond a reasonable doubt, you will acquit the defendant on the charge of attempted aggravated rape.”

Appellant further asserts that the error is compounded in paragraph eleven where the court charged on the “use of actual force or threat of force” as a prerequisite to a determination of attempted rape and then required a finding that the prosecutrix submitted “by the use of force” as previously defined. He therefore argues that paragraphs ten and eleven, when read in conjunction with the abstract charge on rape which required a finding of force or threats as defined in Section 21.02(b)(1) and (2), effectively eliminated the element of threats in connection with the law of attempted rape. Thus, he contends the jury was precluded from finding him guilty of the lesser offense of attempted rape.

A determination of aggravated rape can rest on a finding of rape as defined in V.T.C.A., Penal Code, Section 21.02, and either a finding of serious bodily injury or an attempt to cause death to the prosecu-trix or threats to anyone of imminent infliction of death, serious bodily injury, or kidnapping. The court properly charged on the law of aggravated rape. The court’s charge on the law of attempted aggravated rape, attempted rape, and rape was substantially correct. Taken as a whole, the charge authorized a finding of attempted rape even if threats as well as force were employed by appellant in the course of the criminal act. No reversible error is shown.

Appellant next contends that the trial court erred in admitting testimony concerning the presence of his attorney at a police lineup where appellant was identified as the rapist.

The evidence concerning defense counsel’s presence at the lineup was first elicited by him. On cross-examination of John Young, the record reflects:

“Q. Are you saying that your identification was made under circumstances that you have no doubt whatsoever that this defendant is the person that you saw committing this act?
“A. That’s right. You were also present at the lineup when I picked him out, too.”

The court sustained counsel’s objection to the response. The following then occurred:

“Q. Now, when you were at the lineup, did some police officer counsel with you before you went to the lineup?
“A. He told me not to speak to anyone.
“Q. Including me, is that correct?
“A. Including you because I didn’t know who you were at the time.”

Defense counsel elicited similar evidence on cross-examination of Erva Harris:

“Q. Okay. Do you recall seeing me at the showup?
“A. Seeing what?
“Q. Seeing me at the showup?
“A. Yes, I recall.
“Q. When you came out of the room, did you not tell me that it looked like him but you’re not sure?
“A. No. I didn’t. I sure didn’t.”

If there was any error in the testimony of Officer White about counsel being present at the lineup, it was harmless because counsel had elicited the same testimony from other witnesses. Cf. Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974).

Next appellant contends that he was denied the effective assistance of counsel because it was shown that his counsel was present at the police lineup. We perceive no error in this contention.

Appellant’s final contention is that the attorney-client privilege was violated and he was denied effective assistance of counsel because counsel at trial was compelled to testify to rebut the State’s testimony concerning counsel’s presence and activities at the lineup.

No communication between counsel and appellant was disclosed. Hence the attorney-client privilege was not invaded. Article 38.10, V.A.C.C.P. Moreover, we perceive no denial of the effective assistance of counsel.

The judgment is affirmed.


author: ROBERTS, Judge.

text:
    Emilio FRANCO, Appellant, v. The STATE of Texas, Appellee.
    No. 54410.
    Court of Criminal Appeals of Texas.
    June 8, 1977.

      Brinkley L. Oxford, Edinburg, for appellant.
    Oscar R. Mclnnis, Dist. Atty., and Tom Beery, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a revocation of probation. The trial court entered written findings that appellant violated three conditions of his probation and imposed the original punishment of five years’ confinement in the Texas Department of Corrections.

The trial court’s written findings reflect that appellant (a) committed a burglary, (b) associated with a person of disreputable or harmful character and (c) failed to pay the court costs of his original trial.

Appellant challenges the sufficiency of the evidence on all three findings. His central contention is that an instrument entitled “Stipulation of Evidence,” which he and his attorney signed, should not have been admitted into evidence. In this instrument appellant admits to all three violations of the conditions of his probation.

If appellant is correct, the judgment must be reversed because other evidence in the record is insufficient to show that he committed the burglary, that his failure to pay the court costs was willful or intentional, or that he violated a condition of his probation by association with a person of disreputable or harmful character.

Although the record is poorly developed, this is apparently what happened: As the result of plea negotiations, appellant had originally intended to enter, at a prior time, a plea of “true” to the State’s motion to revoke. At this time he signed a boiler plate “Stipulation of Evidence.” By this instrument, appellant stipulated that the facts in the State’s motion to revoke were true and correct and constituted the evidence in the case. The appellant’s attorney also signed the instrument and it was sworn to before the district clerk. However, when the actual hearing began before Judge Ev-ins, the appellant entered a plea of untrue to all the allegations in the State’s motion to revoke. Judge Evins questioned the appellant and determined that appellant was not going to enter a valid plea of true. Consequently, Judge Evins refused to sign the stipulation of evidence, recessed the case and said he would leave it up to Judge Smith (the original trial court).

At the hearing before the original trial court, the appellant persisted in pleading untrue and strenuously objected to the admission of the stipulation of evidence. The prosecutor admitted that plea negotiations had taken place and that at the prior hearing before Judge Evins the appellant had denied violating any of the three conditions of his probation. Nevertheless, the prosecutor urged that by virtue of the boiler plate language the stipulation was a “judicial confession.” The trial court found that the instrument was not a judicial confession because “there wasn’t any confession in open Court.” We agree. Fancher v. State, 167 Tex.Cr.R. 269, 319 S.W.2d 707, 708 (1958); Botello v. State, 145 Tex.Cr.R. 50, 165 S.W.2d 903, 904 (1942).

“Judicial confessions are those which are made before the magistrate, or court, in the due course of legal proceedings.” Speer v. State, 4 Tex.App. 474, 479 (1878), quoting 1 Greenl. on Ev., Section 216, 6th edition.

Nonetheless, the trial court admitted the stipulation of evidence into evidence because “this is sworn to before the District Clerk. That makes it an entirely different instrument.”

Apparently, plea negotiations had fallen through. The record affirmatively reflects that appellant did not want to plead “true” but wished to plead “untrue” and put the State to its burden of proof by a preponderance of the evidence. See, Roberson v. State, Tex.Cr.App., 549 S.W.2d 749 (delivered April 27, 1977). Appellant persisted in pleading untrue before Judge Evins, which is why Judge Evins did not sign the stipulation of evidence. Appellant persisted in pleading untrue in front of Judge Smith, which was in complete contradiction to the alleged voluntary “Stipulation of Evidence.”

Setting aside a stipulation ordinarily is within the discretion of the trial court. Thompson v. Graham, 318 S.W.2d 102, 105 (Tex.Civ.App.-Eastland 1958, writ ref’d, n.r. e.). However, we are of the opinion that the trial court abused its discretion in revoking appellant’s probation upon the record before us. From appellant’s persistence in pleading untrue, we can only conclude that appellant signed the stipulation of evidence involuntarily or under a mistake of fact as to the nature of the negotiated plea-agreement.

The judgment of the trial court is reversed and the cause is remanded.

      . The only other evidence in the record concerning the burglary was the testimony of the owner of the burglarized house and he merely stated that his home was burglarized and that certain property was taken.

      . Appellant was required to pay $49.50 in court costs the first month after his discharge from the Alternative House in Houston, Texas. The only evidence in the record of appellant’s financial gain from the time of his discharge on February 3, 1976 until the time the State filed its motion to revoke on August 11, 1976, was that he had made approximately $100 in a tomato harvest. This is insufficient to show that appellant had the ability to pay the court costs and that his failure to do so was willful or intentional. Fletcher v. State, Tex.Cr.App., 547 S.W.2d 634 (delivered March 9, 1977).

      .Although the trial court’s written findings hold that appellant violated the condition of his probation by associating with a person of disreputable character, the trial court orally ruled from the bench that the evidence was insufficient on this allegation: “I am not going to hold him on Section B. It’s not sufficient on Section B . We agree with the trial court.


author: GREEN, Commissioner.

text:
    Milton Eugene BROYLES, Appellant, v. The STATE of Texas, Appellee. Charles Curtis O’QUINN, Appellant, v. The STATE of Texas, Appellee. William A. RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53390 to 53392.
    Court of Criminal Appeals of Texas.
    June 14, 1977.

      Paul D. Eaton, Curtis D. Glover and Kenneth D. Carden, Dallas, for appellants.
    Henry Wade, Dist. Atty., John H. Hagler, John R. Roach and James K. Johnson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a joint trial before a jury, appellants Milton Eugene Broyles, Charles Curtis O’Quinn and William A. Richardson on separate complaints and informations were convicted of selling a sound recording that each knew had been reproduced without the written consent of the owner of the original recording. See Art. 9012, Sec. 2(2), V.A. Tex.Civ.Stats. Punishment of Broyles and Richardson was assessed at a fine of $1500 each, and of O’Quinn, at a fine of $2000.

The information in each case charged that the named appellant on or about February 2, 1975, in Dallas County, did unlawfully

“Offer for sale and sell to L. E. Beilharz a sound recording, to-wit: one 8 track tape title ‘Sweet Baby James, by James Taylor,’ knowing that said recording had been reproduced without the written consent of Warner Brothers’ Records, the owner of the original recording.”

Appellants initially contend that their convictions are void because the informa-tions do not allege the culpable mental state required by V.T.C.A. Penal Code, Sec. 6.02, that they intentionally, knowingly, or recklessly offered for sale and sold the sound recording. No motion to quash the infor-mations on this ground was filed in the trial court.

Section 6.02, supra, provides:

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”

V.T.C.A. Penal Code, Sections 6.02 and 6.03 establish the requirements and definitions of culpability for the Code, and Section 1.03(b) makes it clear that these provisions, as well as the other provisions of Titles 1, 2 and 3 of the Code, apply to offenses defined by the civil statutes “unless the statute defining the offense provides otherwise.” See Bocanegra v. State, 552 S.W.2d 130 (1977). Since nothing in Article 9012, supra, provides otherwise, Sections 6.02 and 6.03 apply to this civil statute.

Art. 9012, Sec. 2(2), V.A.Tex.Civ. Stat., supra, does prescribe in the definition of the offense the culpable mental state that the accused at the time he sold or offered for sale the sound recording must know that it had been reproduced without the written consent of the owner of the original recording. This is the same culpable mental state required for the offense of knowingly reproducing for sale a sound recording, as set out in Sec. 2(1) of Art. 9012. The information tracks the statute creating the offense, and alleges the required culpable mental state set forth in the statute for the offense, thus complying with V.T.C.A. Penal Code, Sec. 6.02. See Teniente v. State, Tex.Cr.App., 533 S.W.2d 805. Cf. Bocanegra v. State, supra; Zachery v. State, 552 S.W.2d 136 (1977).

Appellants’ contention in the first ground of error is without merit, and is overruled.

In the second ground of error, appellants contend the coúrt violated their Sixth Amendment right of confrontation and cross-examination by restricting his cross-examination of State’s witness Billy Emerson.

Emerson was attorney in Dallas for the Southwest Association of Recording Merchandisers, a group of companies and individuals operating legitimately in the music industry. He was also manager of Records of Dallas, Inc., engaged in the music recording business. He qualified as an expert in the field of the music recording industry, and the court so found. He testified that in January and February, 1975, he discovered that these appellants were engaged in the business of dealing in and selling “bootleg tapes” in violation of Art. 9012, Sec. 2(2), V.A.Tex.Civ.Stat., supra, and notified each of them to that effect, giving to each a copy of that statute. Thereafter, on February 22, he arranged for Dallas police officers to investigate appellants’ activities, and after each appellant had sold to Dallas undercover officers the records as alleged in the informations they were arrested.

On cross-examination, appellants placed in evidence a letter written February 25, 1975, by Emerson as attorney for the Southwest Association of Recording Merchandisers to a firm in Longview stating in part: “I have received reliable information that you have purchased large quantities of eight-track tape cartridges from a Charles O’Quinn on the ‘Hemesphere Sound Label.’ ”

Appellant then asked and the witness replied:

“Where did you receive this information.” “A That’s confidential.”

The State objected to the answering of the question “until he establishes its relevancy.”

A hearing was then conducted in the absence of the jury, and in answer to the court’s inquiry as to the relevancy of the question, appellant replied:

“It’s relevant to show that he did in fact, acquire information from confiscated materials contrary to the Texas Statutes which state that it is a felony for confiscated materials to be released to a party not a member of law enforcement.”

The State’s view, as argued by the prosecuting attorney, was that “whatever information he (Emerson) had about some offense that occurred in Longview” after the commission of this offense “is not relevant or material to the offense charged here.” The court found, after argument of counsel, that any answer would not “solve any issue which will show his bias or interest, financial interest, in anything, and sustained the State’s objection.” However, the court permitted appellant to cross-examine the witness at length concerning the Longview matter.

The State had not, on direct examination, introduced any testimony concerning the subject matter of the letter to the Longview firm. This was brought into evidence for the first time on cross-examination. We have reviewed the subject matter of appellants’ complaint and agree with the trial court that there is no showing of any relevancy concerning where the witness received the information stated in the letter. Neither is there any showing of harm to appellants by virtue of the court’s ruling. The second ground of error is overruled.

Appellant next contends that Art. 9012, V.A.Tex.Civ.St., the statute under which this conviction was obtained, is void in that “it is an attempted regulation of interstate commerce by a State government” in violation of Art. 1, Sec. 8, Clause 3 of the United States Constitution. That clause provides that the Congress shall have Power .

“to regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes; . . .”

As stated by our Texas Supreme Court in Robinson v. Hill, 507 S.W.2d 521:

“In passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily, and the burden is on one who challenges an act to establish its unconstitutionality. Smith v. Craddick, Tex.Sup., 471 S.W.2d 375; Smith v. Davis, Tex. Sup., 426 S.W.2d 827, and authorities there cited. . . .”

See also 12 Tex.Jur.2d, p. 385, Constitutional Law, Sec. 42.

The Supreme Court of the United States, in upholding a California statute similar to Art. 9012, supra, in Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163, stated that the California statute “evidence^] a legislative policy to prohibit ‘tape piracy’ and ‘record piracy’ conduct that may adversely affect the continued production of new recordings, a large industry in California.” See also Tape Industries Association of America v. Younger, D.C., 316 P.Supp. 340, and cases cited.

It is evident that the passage of Art. 9012, supra, by the Texas Legislature evidenced that same policy.

In Plumley v. Massachusetts, 155 U.S. 461, 15 S.Ct. 154, 39 L.Ed. 223 (1894) the law question was “whether, as contended by the petitioner, the statute under examination, in its application to sales of oleomargarine brought into Massachusetts from other states, is in conflict with the clause of the Constitution of the United States investing Congress with power to regulate commerce among the several states.”

The Court stated:

“Several cases in this court were cited in argument to support the contention that the grant of power to Congress to regulate interstate commerce extended to such legislation as that enacted by the Commonwealth of Massachusetts. Let us see whether those cases announce any principle that compels this court to adjudge that the states have surrendered to the general government the power to prevent fraud in the sales of property." (Emphasis added).

After discussing a number of federal Supreme Court cases, the Court proceeded to say:

“In none of the above cases is there to be found a suggestion or intimation that the Constitution of the United States took from the States the power of preventing deception and fraud in the sale, within their respective limits, of articles, in whatever state manufactured, or that that instrument secured to anyone the privilege of committing a wrong against society.” (Emphasis added)

We conclude that the Legislature of the State of Texas is not precluded by the Commerce Clause of the United States Constitution, Art. 1, Sec. 8, Cl. 3, from exercising the police power of the State in prohibiting record and tape piracy by the unauthorized reproduction for sale or knowingly selling reproduced sound recording, as provided in Art. 9012, V.A.Tex.Civ.Statutes, supra. See Texas Attorney General’s opinion No. M-1114, 1972; annotation in 40 ALR 3rd Series, page 566 on Unfair Competition by Direct Reproduction of Literary, Artistic, or Musical Property, following opinion in Capitol Records v. Erickson et al., 40 A.L.R.3d 553 (California Court of Appeals, Second District, Division 1, 1969 also reported in 2 Cal.App.3d 526, 82 Cal.Rptr. 798, writ den., 398 U.S. 960, 90 S.Ct. 2176, 26 L.Ed.2d 545).

The third ground of error is overruled.

Appellant next argues that the court reversibly erred in permitting State’s witness Fern Shapiro to testify by hearsay to facts outside of her personal knowledge in order to prove that Warner Brothers Records owned the original recording of “Sweet Baby James by James Taylor” as alleged in the indictment.

State’s exhibit No. 12 is a contract between Warner Brothers Records and Marle-bone Productions giving Warner “the exclusive services of James Taylor as a recording artist.” It was admitted in evidence during the testimony of Fern Shapiro, an official of Warner Brothers Records as Director of Royalties and Licensing. When the contract was first offered by the State, appellants objected on the ground that

“We have no way of knowing whether corporations did, in fact, approve this contract . . . Second, we do not have any way of knowing if, in fact, either of these corporations, had a right to represent ‘Baby James’ exclusively . . . we have no way of knowing whether they were in fact corporations, or what their relation was.”

When the court sustained this objection, the State proved by Shapiro that the contract had been executed in her presence, and that she had the care, custody and control of the records of the company, including this contract, which records were kept in her custody in the regular course of the company’s business. The State also placed in evidence a copy of the incorporation of Warner Brothers Records, Inc., also taken from the records in the custody of the witness. Thereupon, Exhibit 12 was admitted in evidence over appellant’s objection that

“I don’t think that this witness has satisfactorily shown that she is knowledgable of the corporate activities as to be able to testify whether they represent the incorporation of the companies that she is employed by.”

The court did not err in overruling the objection and admitting State’s Exhibit No. 12. Art. 3737e, V.A.Civ.St.; Prine v. State, Tex.Cr.App., 509 S.W.2d 617; Lawless v. State, Tex.Cr.App., 495 S.W.2d 241.

Appellant complains that Shapiro “was allowed to testify that James Taylor is the exclusive owner of Marlebone Productions, and that state’s exhibit No. 12 was, in effect, an exclusive recording agreement between Warner Brothers Records and James Taylor.”

Shapiro testified that in her employment with Warner Brothers Records, she was responsible for the direct administration of all contracts for Warner Brothers Records, and that she was present at the execution of State’s exhibit No. 12. She stated without objection that while Taylor had not personally signed the contract, Warner had a production agreement “with his production firm, which is Marlebone Productions,” and that at the time the record of Sweet Baby James was made, Taylor was under contract with Warner Brothers Records. We quote as follows from her testimony:

“Q Mrs. Shapiro, I’m going to ask you if you’re familiar with the contractual agreements between Warner Bros. Records and James Taylor?
“A Yes, sir.
“Q If you would, just explain to the jury why you would be familiar with that sort of thing?
“A I am responsible for the direct administration of all contracts for Warner Bros. Records.
“Q And to your knowledge, has James Taylor ever signed a contract with Warner Bros. Records?
“A Has he, himself, signed a contract?
“Q Yes, ma’am.
“A No, his signature is not on the contract.
“Q I’m sorry. I don’t understand.
“A We have a production agreement with his production firm, which is Marlebone Productions.
“THE COURT REPORTER: I’m sorry. What was the name of the company?
“THE WITNESS: Marlebone Productions.
“THE COURT REPORTER: Would you spell it, please?
“THE WITNESS: (Spelling) M-a-r-l-e-b-o-n-e.
“Q (By Mr. Roach) Are you familiar with the album or tape recording ‘Sweet Baby James’ by James Taylor?
“A Yes, I am.
“Q At the time that album or tape recording was made, was he or was he not under contract to Warner Bros. Records?
“A Yes, sir.
* * * * * *
“Q The question is: Who does Marle-bone Productions represent in that contract?
“MR. WIGHTMAN: Your Honor,' I’ll have to object to that ‘who do they represent in that contract.’
“THE COURT: In the contract, I’ll sustain.
“Q (By Mr. Roach): Who do they represent?
“A James Taylor.
“Q Do they represent other artists as well?
“A No.
“Q It’s a fact that James Taylor owns Marlebone Productions, doesn’t he?
“A That’s correct.
“Q Now, I’ll ask you this from either the contract terms or your own knowledge. First of all, does James Taylor record exclusively for Warner Bros. Records, Incorporated?
“A Yes, he does.
“MR. WIGHTMAN: Your Honor, I'll have to object due to the fact that, first of all, the witness has already testified that their only contact with Mr. James Taylor is with Marle-bone — whatever it is. The State is now asking her to go beyond the powers of Marlebone when she has already admitted that their only connection with him is with Marlebone.
“THE COURT: Overrule your objection.
“MR. WIGHTMAN: Exception, please. ******
“ANSWER: Yes, he does.
“THE COURT: Go ahead, Next question.
“Q (By Mr. Roach) Among those recordings of James Taylor for Warner Bros. Records, Incorporated, would they include ‘Sweet Baby James’ by James Taylor?
“A Yes, they would.
“Q Is Warner Bros. Records, Incorporated the owner of the original recording of that recording ‘Sweet Baby James’ by James Taylor?
“A Yes, they are.
“Q Is Warner Bros. Records, Incorporated also known as Warner Bros. Records?
“A Yes, it is.”

The record reflects that Fern Shapiro, in her executive capacity as Director of Royalties and Licenses, was thoroughly familiar with the transactions between her employer and James Taylor and his production company. Much of her testimony of that relationship was introduced without objection. Her testimony establishes that her knowledge of the connection between Marlebone and Taylor was first hand personal information obtained through her responsible obligatory duties concerning the recording contracts of her employer. The record does not reflect that her information was based on hearsay obtained outside of her personal knowledge, as contended by appellant in this ground of error. There was no objection on the ground that her testimony was not the best evidence of the facts she was stating.

Reversible error is not presented, and appellant’s contentions are overruled.

The judgments are affirmed.

Opinion approved by the Court.

      . “Art. 9012. Reproduction for sale, or sale or offer for sale, of a sound recording without owner’s consent
      “Section 1. As used in this Act, ‘owner’ means the owner of the master recording, master disc, master tape, master film, or other device used for reproducing recorded sound on a phonograph record, disc, tape, film, or other material on which sound is recorded and from which the transferred recorded sound is directly or indirectly derived.
      “Sec. 2. A person commits a misdemeanor punishable by a fine not to exceed $2,000 if he:
      “(1) knowingly reproduces for sale any sound recording without the written consent of the owner of the original recording; or “(2) sells or offers for sale any sound recording that he knows has been reproduced without the written consent of the owner of the original recording.”

      . California Penal Code, Sec. 653h (1968), Transfer of recorded sounds for unlawful use, sale, provides in part:
      “(a) Every person is guilty of a misdemeanor who:
      “(1) Knowingly and willfully transfers or causes to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film . . . or other article on which sounds are recorded, with intent to sell or cause to be sold . . . such article on which such sounds are so transferred, without the consent of the owner.
      “(2) * * *
      “(b) As used in this section, ‘person’ means any individual, partnership, corporation or association; and ‘owner’ means the person who owns the master phonograph record, . . master tape ... or other device used for reproducing recorded sounds on phonograph records . . . tapes . . or other articles on which sound is recorded, and from which the transferred recorded sounds are directly or indirectly derived.”


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Jeremiah HARRISON, Appellant, v. The STATE of Texas, Appellee.
    No. 53426.
    Court of Criminal Appeals of Texas.
    June 14, 1977.

      Will Gray, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and George 0. Jacobs, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant appeals from his conviction for possession of heroin. The jury assessed punishment at twenty years.

The sufficiency of the evidence is not challenged. The record reflects that appellant and his wife, Shirley, were tried jointly for the possession of heroin seized in a raid on their home by officers of the Houston Police Department, Harris County Sheriff’s Office and the Texas Department of Public Safety on October 3, 1973, pursuant to a search warrant. Appellant and his wife retained two attorneys to represent them.

Appellant contends in ten separate grounds of error that he failed to receive a fair trial because of ineffective assistance of his retained counsel in the trial court.

The constitutional right to counsel, whether counsel be appointed or retained, does not mean errorless counsel whose competency or adequacy of his representation is not to be judged ineffective by hindsight. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); see also, Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974).

The adequacy of an attorney’s services must be gauged by the “totality of the representation”; therefore, we decline to take up each instance of ineffectiveness alleged in appellant’s brief. Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975); Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974). The allegations of ineffective representation will be sustained only if they are firmly founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974). Effectiveness of retained counsel must be gauged by whether or not there was wilful conduct by retained counsel without a defendant’s knowledge which amounts to a breach of legal duty. Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976).

As this Court wrote in Chatman v. State, 478 S.W.2d 91 (Tex.Cr.App.1972):

“. . . complaints of ineffective counsel must be examined in light of what the Court said in Williams v. Beto, 354 F.2d 698 (5th Cir.): ‘As no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight.’ ”

An attorney must appraise a case and do the best he can with the facts and the fact that other counsel might have tried the case differently does not show inadequate representation. Ex parte Prior, supra. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975), and Witt v. State, 475 S.W.2d 259 (Tex.Cr.App.1971). See also, United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974).

We have carefully examined this very voluminous record and appellant’s numerous allegations and cannot conclude there was ineffective assistance of counsel. This record does not support or reflect any wilful misconduct by an employed counsel without appellant’s knowledge which amounts to a breach of the legal duty of an attorney. Trotter v. State, 471 S.W.2d 822 (Tex.Cr.App.1971). Even if we use the “reasonably effective assistance” standard of Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974), we would reach the same result.

Nothing appears in the record to show any bad faith, insincerity or disloyalty toward appellant by his attorney. A good faith error or mistake, if any, made by retained counsel with honest and earnest purpose to serve his client cannot be the basis of a claim of reversible error. Mills v. State, 483 S.W.2d 264 (Tex.Cr.App.1972); see also, Popeko v. United States, 294 F.2d 168 (5th Cir.1961).

With respect to appellant’s allegation of a conflict of interest in his retained counsel representing both him and his wife, we find the language of Stutes, supra, controlling, wherein we said:

“It is true that where an appointed counsel has an actual conflict of interest a defendant is denied his right to effective representation without a showing of specific prejudice. Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974). But where counsel is retained, there is no ineffectiveness on such grounds unless the attorney’s representation was fettered or restrained by his commitments to others, and such commitments were unknown to the defendant. Randazzo v. United States, 339 F.2d 79 (5th Cir. 1964). In the case at bar, we have neither an actual conflict of interest nor an appellant ignorant of any potential conflict of interest.

We find that appellant had adequate representation in the trial court. Nor do we conclude that appellant has been deprived of a fair trial or due process of law.

No reversible error having been shown, the judgment is affirmed.

ROBERTS, Judge,

dissenting.

For the reasons stated in my dissenting opinion in Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977), I dissent to the majority’s decision to apply the “breach of a legal duty” standard simply because counsel was retained. There should be no distinction between retained and appointed counsel. Both should be reasonably competent, and neither should render inadequate representation.

PHILLIPS, J., joins.


author: DALLY, Commissioner.

text:
    Lewis B. EASDON, Appellant, v. The STATE of Texas, Appellee.
    No. 53493.
    Court of Criminal Appeals of Texas.
    June 14, 1977.

      Paul J. Chitwood, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Tatum, Rider Scott and Ron Poole, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the misdemeanor offense of driving a motor vehicle on a public highway while intoxicated. The punishment is confinement in the county jail for 10 days and a fine of $500.00.

The appellant, in his sole ground of error, asserts that the trial court erred in charging the jury that a person who drives a motor vehicle on a public highway when there is 0.10 percent alcohol in his blood is presumed to be intoxicated.

The appellant was observed driving a pickup truck in an erratic manner on a freeway in Dallas at approximately 6:00 p. m. on July 3, 1974. After crossing several lanes of traffic the pickup truck driven by the appellant sheered off a light pole and came to a stop. In the opinion of two witnesses who observed the incident and who observed the appellant after the collision, the appellant was extremely intoxicated. In the opinion of a police officer who investigated the collision, the appellant was highly intoxicated. The appellant was taken from the scene of the collision to Parkland Hospital where a sample of his blood was taken at about 8:20 p. m. A chemist who analyzed the blood sample testified that it contained .21 percent alcohol.

Article 67017-5, Sec. 3(a), V.A.C.S., provides:

“Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle and while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by chemical analysis of his blood, breath, urine, or any other bodily substance, shall be admissible and if there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.”

V.T.C.A. Penal Code, Section 2.05, guides the court in submitting charges on statutory presumptions. This section provides:

“When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:
“(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and “(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:
“(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
“(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but is not bound to so find;
“(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
“(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.”

The Court, over a timely objection, on the same grounds as are now urged on appeal, charged the jury as follows:

“You are further instructed that as a part of the law in this case the statutes of the State of Texas provide that it shall be presumed that any person who drives a motor vehicle is under the influence of intoxicating liquor, if there was, at the time that the person so drove, 0.10 percent or more by weight of alcohol in the person’s blood, as shown by chemical analysis of the person’s blood, breath, urine or any other bodily substance.
“(A) The facts giving rise to the presumption must be proven beyond a reasonable doubt;
“(B) if such facts are proven beyond a reasonable doubt you may find that the element of the offense sought to be presumed exists, but you are not bound to so find;
“(C) even though you may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
“(D) if you have a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and you shall not consider the presumption for any purpose.”

The appellant asserts the charge, which was submitted to the jury, was in conflict with the presumption of innocence, and was an instruction for the jury to return a verdict of guilty. The appellant also asserts the charge was a comment on the weight of the evidence and violated the provisions of Article 36.14, V.A.C.C.P., which prohibits the court from expressing any opinion on the weight of the evidence or summing up testimony in the charge.

The charge submitted to the jury is based on Article 67011 -5, Sec. 3(a), Y.A.C.S. and V.T.C.A. Penal Code, Section 2.05. A statutory presumption permits an inference to be drawn from proof of certain facts. In this instance the statute permits the jury to infer that a person is intoxicated if it is proved that there was 0.10 percent alcohol in his blood when he drove a motor vehicle on a public highway. The state is not relieved of the burden of proving each element of the offense beyond a reasonable doubt. In order to take advantage of the presumption the state must prove each fact giving rise to the presumption beyond a reasonable doubt. Even if the jury finds that the facts giving rise to the presumption are proven beyond a reasonable doubt, the jury is not required to presume the fact or element of the offense.

The charge submitted to the jury does not conflict with the presumption of innocence and does not shift the burden of proof to the accused. The charge did not violate the appellant’s constitutional rights. Cf. Kay v. United States, 255 F.2d 476 (4th Cir. 1958); Varner v. State, 493 P.2d 452 (Okla.Cr.1972); State v. Bailey, 184 Kan. 704, 339 P.2d 45 (1959); State v. Protokowicz, 55 N.J.Super. 598, 151 A.2d 396 (1959). See also 61A C.J.S. Motor Vehicles § 633(2) and 633(3). The charge was not an instruction to the jury to return a guilty verdict.

When a court instructs a jury on a presumption created by statute, it is not a comment on the weight of the evidence. It is instead a statement of the law applicable to the case. Soules, Presumptions in Criminal Cases, 20 Bay.L.Rev. 277, 288 (1968). To hold otherwise would render V.T.C.A. Penal Code, Section 2.05 meaningless. Section 2.05, supra, specifically authorizes the court to instruct the jury on a presumption established by the penal code or another penal law. Article 67017-5, V.A.C.S., is “another penal law” within the meaning of Section 2.05, supra. The court’s instruction did not violate Article 36.14, V.A.C.C.P. No error is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Ex parte Richard W. MEDIEROS.
    Nos. 54438, 54932.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Brantley Pringle, Fort Worth, for appellant in No. 54438.
    Ben Hill Turner, Cleburne, for appellant in No. 54932.
    John R. MacLean, Dist. Atty., Cleburne, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are two appeals following habeas corpus proceedings in the 18th District Court in which appellant was remanded to custody for extradition to Arizona.

In Cause No. 54,438, appellant complains that his confinement is illegal because there is no Texas warrant or court order authorizing any Texas peace officer to restrain him on any charge and because the Governor of Texas has not issued a warrant for his extradition. Subsequent to the appeal of Cause No. 54,438, the Governor did issue a warrant for appellant’s extradition. Appellant in Cause No. 54,932, however, states' that the Governor’s warrant and the supporting papers contained in the record are insufficient to support his extradition to Arizona.

In each cause the trial court, after hearing, ordered appellant remanded to custody for extradition to Arizona. Therefore, if either of the two such orders is valid, we must deny relief and affirm the valid order.

Appellant’s waiver of extradition recites:

“I, Richard W. Mederios, [sic] hereby acknowledge that I am charged in a Court of Pima County, Arizona, with felony offenses of (1) armed burglary (2) assault with a deadly weapon (3) attempted armed robbery (4) kidnapping, and that a warrant number 702389056 has been issued from said State for my arrest. I hereby waive the issuance and service of the warrant provided by law for my extradition from the State of Texas to the State of Arizona and I hereby acknowledge to E. Byron Crosier, Judge of the 18th Judicial Court of Johnson County, Texas, that I am willing to return in the custody of any Arizona peace officer to the State of Arizona without the issuance and service of any warrant other than the warrant already issued for my arrest. I understand that I have the right to demand that extradition proceedings be initiated and carried out in this matter and I voluntarily waive all extradition proceeding of every kind and character, and I further realize that I am entitled to sue out a writ of habeas corpus and I further voluntarily waive my right of said habeas corpus proceeding, all of these matters having been fully explained to me by E. Byron Crosier, Judge of the 18th Judicial District Court of Johnson County, Texas.
“I understand that this is not in any way a plea of guilty and that I do not waive any of my rights in the trial of the matter with which I am charged in the state of Arizona.”

Appellant contends, however, that the waiver was obtained without advice of counsel, and that the waiver was coerced.

The record reflects that appellant is thirty-two years old and has completed his junior year in college. During the hearing held on the writ of habeas corpus in Cause No. 54,438, the following dialogue occurred between the district attorney and the appellant:

“Q. So, you have got the hours necessary to classify you as a junior, almost a senior?
“A. Right, yes, sir.
“Q. As I recall you were seated back along with another individual, back toward the rear of the Courtroom there?
“A. That’s right.
“Q. And some other proceedings were taking place there while you were seated there?
“A. Right.
“Q. And then I believe you were called up here before Judge Crosier, and he discussed the instrument that you signed with you; did he not?
“A. Yes, sir.
“Q. And did he not tell you that you were wanted in Arizona for some charges there, and that they want to come and pick you up and take you back there to Arizona? Didn’t you understand that?
“A. Yes, sir.
“Q. And in fairness to the Court here, didn’t he make it clear to you that you didn’t have to sign this instrument unless you clearly wanted to sign it?
“A. Yes, sir.
“Q. And when he was explaining your rights to you, he explained what would happen if you did sign this waiver that they would come and get you, and you would be tried in Arizona for your charges?
“A. Yes, sir.
“Q. And I believe he also told you that at that time you weren’t waiving any of your rights in Arizona, that this didn’t involve a guilty plea out there, that you weren’t waiving any of your rights to a fair trial and trial by Jury, and so forth, in Arizona? Didn’t he make that perfectly clear to you?
“A. Yes, sir.
“Q. And I believe he also discussed that you had the right to have a Habeas Corpus proceeding here in Johnson County where you could sue out a Habeas Corpus if I recall correctly. Do you recall that?
“A. Yes, sir.
“Q. And that basically you were going away with the procedure that is required to extradite you, that you were willing to go when the deputies came to pick you up? Basically that is what was involved?
“A. Pardon me?
“Q. Basically you realized once you signed that, you were going to be picked up by some deputies from Arizona and taken back to Arizona for a trial?
“A. Yes, sir.
“Q. Did the Judge hurry through that, or did he take his time and treat you fairly and explain it to you in detail?
“A. I thought he was quite, uh, deliberate about it.
“Q. Do you feel like in any way he tricked or pressured you into signing that?
“A. No, at the time I made up my mind that I was going to waive extradition and go to Arizona. Now, I didn’t understand the legal implications of what I was signing at the time.
“Q. But my question is, — do you feel like the Judge was unfair and hurried you through it, and pressured you into signing it?
“A. No, no.
“Q. Do you think he took a due amount of time to explain it to you fully where you would understand it?
“A. Yes, sir.”

There is nothing in the record to support appellant’s claim that he was coerced into waiving his right to an extradition proceeding. The evidence also supports the trial court’s conclusion that the appellant was aware of the rights secured to him by Article 51.13, V.A.C.C.P., and that he intelligently waived them.

Apparently appellant contends that the waiver is ineffective unless he receives the advice of counsel prior to the waiver. We do not agree with this contention. Article 51.13, Sec. 25a, Y.A.C.C.P., provides:

“Sec. 25a. Any person arrested in this State charged with having committed any crime in another State or alleged to have escaped from confinement, or broken the terms of his bail, probation, or parole may waive the issuance and service of the warrant provided for in Sections 7 and 8 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge or any court of record within this State a writing which states that he consents to return to the demanding State; provided, however, that before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in Section 10.”

The record conclusively demonstrates that the trial court adhered to the requirements of this statute and informed the appellant of his statutory rights. Under the Uniform Criminal Extradition Act, the judge, not counsel, is to advise the individual of the rights afforded him before accepting or allowing a waiver of such rights. The fact that appellant was not advised by counsel prior to the waiver is not controlling.

Appellant knowingly and voluntarily waived his right to an extradition proceeding. In light of our holding, we need not determine the sufficiency of the Governor’s warrant and the supporting papers thereon.

The order of the trial court in Cause No. 54,438, remanding appellant to custody for extradition to Arizona, is affirmed, and the relief prayed for in Cause No. 54,932 is denied.

      . Article 51.13, supra.


text:
    Edmundo V. LEYVA, Appellant, v. The STATE of Texas, Appellee.
    No. 54479.
    Court of Criminal Appeals of Texas.
    June 14, 1977.

      Harry Tom Petersen, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Thomas C. Roepke, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

On May 25, 1973, appellant waived trial by jury and entered a plea of guilty before the court to the offense of burglary with intent to commit theft, a violation of the former Penal Code. Punishment was assessed at ten years, probated. One of the terms of probation was that he “[cjommit no offense against the laws of this or any other State or of the United States.”

On August 3, 1976, the State filed a motion to revoke appellant’s probation. The motion alleged, in substance, that on June 8, 1976, appellant violated V.T.C.A., Penal Code, Section 31.03, by committing theft. On September 30, 1976, probation was revoked.

Appellant contends that the trial court erred in denying his motion for the appointment of a psychiatrist. On the day of the revocation hearing the appellant filed a motion for a psychiatric examination for the purpose of determining appellant’s “legal sanity at the time of the offense and presently.” The motion alleged that appellant had reported to his attorney that he had been repeatedly under psychiatric treatment in Juarez, Mexico, and that he was mentally ill. The motion nowhere alleges that appellant was incompetent to stand trial or insane on the date of the alleged probation violation. In support of appellant’s motion the certificate of the Administrator of the Hospital Civil Libertad of Juarez, Mexico, was admitted into evidence. That certification reflects that appellant was treated by a psychiatrist at the hospital for a week in January, 1974. No other evidence was offered by appellant in behalf of his motion.

A person is incompetent to stand trial if he does not have: (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against him. Article 46.02, Section 1(a), V.A.C.C.P. A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Article 46.-02, Section 1(b), V.A.C.C.P.

Article 46.02, Section 2, V.A.C.C.P., provides:

“(a) The issue of the defendant’s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on the written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial. (Emphasis supplied).
“(b) If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.” (Emphasis supplied)

Article 46.02, Section 3(a), provides:

“At any time the issue of the defendant’s incompetency to stand trial is raised, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant with regard to his competency to stand trial and to testify at any trial or hearing on this issue, but the court may not order the defendant to a facility operated by the Texas Department of Mental Health and Mental Retardation for examination without the consent of the head of that facility.” (Emphasis supplied)

There is no allegation that appellant has been judicially determined to be mentally ill. Even if it had, a judicial determination that a person is mentally ill does not constitute a determination of a person’s mental competency. See Article 5547 — 83(b), V.A.C.S.; Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973). Appellant introduced no evidence in support of the allegation that he was “mentally ill.” The certification of the administrator of the hospital in Juarez, Mexico, does not state that appellant was “mentally ill,” merely that he was treated by a psychiatrist. This, standing alone, would not require a finding that appellant was mentally incompetent. Ainsworth v. State, supra; Bledsoe v. State, 519 S.W.2d 646 (Tex.Cr.App.1975); Nichols v. State, 501 S.W.2d 333 (Tex.Cr.App.1973); Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976). In short, we hold that there was no evidence before the court which would support a finding of incompetency to stand trial. Article 46.02, Section 2, supra.

Appellant maintains that a lesser quantum of proof is required when an accused seeks the appointment of a psychiatrist under Article 46.02, Section 3, supra, than that which is required in order to require a separate hearing on the issue of competency. Appellant relies on United States v. McEachern, 465 F.2d 833 (5th Cir. 1972), which construed 18 U.S.C. Section 4244. That statute, however, makes it mandatory for a federal district court to appoint a psychiatrist to examine an accused when he has been presented with reasonable cause to believe that such person is mentally incompetent. Article 46.02, Section 3, leaves such appointment to the trial court’s sound discretion even when the issue of the defendant’s incompetency to stand trial is raised. The decision of the trial court is reviewable limited to a determination of whether the trial court abused its discretion. For such a review the individual facts of each case must be examined. In the instant case there was no allegation or evidence which would raise an issue of appellant’s incompetency to stand trial. We overrule appellant’s contention concerning the appointment of a psychiatrist for the purpose of determining appellant’s competency to stand trial.

Likewise, we overrule the contention relating to the appointment of a psychiatrist for the purpose of determining appellant’s sanity at the time of the alleged probation violation. Article 46.03, Section 2, V.A.C.C.P., provides:

“(a) A defendant planning to offer evidence of the insanity defense shall file a notice of his intention to offer such evidence with the court, and the prosecuting attorney:
“(1) at least 10 days prior to the date the case is set for trial; or “(2) if the court sets a pretrial hearing before the 10-day period, the defendant shall give notice at the hearing; or
“(3) if the defendant raises the issue of his incompetency to stand trial before the 10-day period, he shall at the same time file notice of his intention to offer evidence of the insanity defense.
“(b) Unless notice is timely filed pursuant to Subsection (a) of this section, evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to give notice.”

Article 46.03, Section 3(a), V.A.C.C.P., provides:

“If notice of intention to raise the insanity defense is filed under Section 2 of this article, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant with regard to the insanity defense and to testify thereto at any trial or hearing on this issue, but the court may not order the defendant to a state mental hospital for examination without the consent of the head of the state mental hospital.” (Emphasis supplied).

The record does not show that appellant gave notice that he intended to rely upon insanity as a defense as required by Article 46.03, Section 2, supra. Nor do we find that he attempted to show that good cause existed for failure to give notice. Consequently, no abuse of discretion has been shown.

Next he contends that the trial court erred in overruling his motion to quash the motion to revoke his probation. The motion alleged, in pertinent part:

. . on the 8th day of June, 1976, in the County of El Paso and State of Texas, the said defendant, EDMUNDO LEYVA, did then and there unlawfully, violate Tex. Penal Code Ann. § 31.03 (1974), by appropriating the personal property of ELMER E. RAMSEY, 1508 Hawthorne, El Paso, Texas, and by exercising control over said property without the effective consent of the owner.

Specifically he contends that the motion is defective because it fails to allege that the property was appropriated “with intent to deprive the owner of property.”

V.T.C.A., Penal Code, Section 31.03(a), provides that a person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property.

The allegations in a motion to revoke probation do not require the same particularity of an indictment or information. Wilcox v. State, 477 S.W.2d 900 (Tex.Cr.App.1972); Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

All that is required is that the motion to revoke should fully and clearly set forth the basis upon which the State seeks revocation so that a defendant and his counsel might be informed as to that upon which he will be called to defend.

In Kuenstler v. State, 486 S.W.2d 367 (Tex.Cr.App.1972), we held that the trial court erred in failing to sustain a motion to quash a motion to revoke probation where the motion merely alleged that the probationer “[c]ommitted the offense of Felony Theft, subsequent to being placed on probation.” There we stated:

“. . . The motion was couched in such general terms as to give the appellant no notice as to how he had violated his probationary conditions or to enable him to prepare a defense or to determine what witnesses to subpoena. No dates were alleged, the name of the injured party in the felony theft was not disclosed, nor were there other details alleged.”

In Garner v. State, 545 S.W.2d 178 (Tex.Cr.App.1977), the motion to revoke alleged that:

“. . . the defendant did on or about the 16th day of December, 1974, commit the offense of theft in Harris County, Texas, as alleged in the indictment for that offense that was filed in the 174th Criminal District Court of Harris County, Texas, in Cause No. 223,979.”

There we held that the trial court erred in failing to sustain a motion to quash the revocation motion and stated:

: . The general allegation that appellant on or about December 16, 1974, committed the offense of theft in Harris County, without further identification of the offense alleged to have been committed, did not give appellant or his counsel sufficient notice of the offense on which the State relied for revocation.” (Footnote omitted).

In the instant case, however, the motion to revoke alleged that appellant unlawfully violated V.T.C.A., Penal Code, Section 31.03, on June 8, 1976. It further alleged the owner of the property appropriated and his address. The missing allegation, that the property was appropriated with intent to deprive the owner of the property, could not have misled appellant, as the motion to quash showed that appellant was aware that this was an essential element of the offense of theft. We hold that appellant had fair notice as to how he was alleged to have violated his probationary conditions so as to enable him to prepare a defense and to determine what witnesses to subpoena.

Lastly, appellant also contends:

“The court erred in denying defendant’s motion to dismiss in that there was no evidence presented by the state to prove that the alleged offense had occurred in ‘any state or the United States’ as alleged.”

Specifically he contends that, since the State’s motion to revoke probation alleged that appellant had committed theft in El Paso County, Texas, mere proof that the probationary violation occurred in El Paso County was not sufficient proof that it occurred in El Paso County, Texas. We perceive no error.

We take judicial notice that El Paso County is in Texas.

The judgment is affirmed.

      . Appellant does not contend that he was entitled to a separate hearing on the issue of his competency to stand trial. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Nor do we understand him to contend that the facts of the case constitutionally required the suspension of the revocation hearing pending a prompt psychiatric evaluation. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

      . We do believe that the trial court erred in refusing to allow appellant to testify for the limited purpose “of establishing his mental condition at this time” in light of Article 46.02, Section 3(f), V.A.C.C.P., even after the State had rested its case, at the revocation hearing. But, in light of counsel’s statement that “his sole testimony would be .to establish the fact that he has been previously hospitalized in Mexico,” the testimony would have been merely cumulative of the certificate of the Administrator of Juarez hospital.

      .See also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).


author: ONION, Presiding Judge.

text:
    Pete Charo ARCE, Appellant, v. The STATE of Texas, Appellee.
    No. 54567.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    John P. Mustachio, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Ted Poe, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin. Punishment, enhanced under the provisions of V.T.C.A., Penal Code, § 12.42(d), was assessed at life imprisonment.

On February 15, 1975, the appellant entered a guilty plea to the primary offense but pled “untrue” to the two prior felony convictions alleged for enhancement of punishment.

Appellant urges three grounds of error. He claims the indictment is fatally defective for failure to allege the designation of the court in which the prior convictions occurred; that the evidence was insufficient to prove the prior convictions as alleged; that the trial court did not properly admonish him at the time of his guilty plea as required by Article 26.13, Vernon’s Ann. C.C.P.

The appellant did not file a motion to quash the indictment or the enhancement paragraphs on the contention now advanced on appeal that the enhancement paragraphs did not contain the name or designation of the courts where the prior convictions occurred.

The indictment, after it alleges the primary offense, reads in part:

“ENHANCEMENT PARAGRAPHS
“Before the commission of the primary offense, on January 14, 1975, in Cause No. 79149, in Harris County, Texas, the Defendant was convicted of the felony of Unlawful possession of a narcotic drug, to-wit, Heroin.

“Before the commission of the primary offense, and after the conviction in Cause No. 79149 was final, the Defendant committed the felony of Unlawful sale of a narcotic drug, to-wit, Heroin and was convicted on December 9, 1963, in Cause No. 107799, in Harris County . . ..”

The State urges that since the prior convictions are alleged to have been felonies the cause numbers obviously refer to convictions in the district courts of Harris County and name and designation of the convicting court are easily obtainable.

The appellant here made no motion to quash on the ground now urged, and this court has previously held that complaints such as the appellant now makes are exceptions as to form and not as to substance, and cannot be raised for the first time on appeal. Stribling v. State, 542 S.W.2d 418 (Tex.Cr.App.1976); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), and cases there cited.

The enhancement paragraphs are not fatally defective for the reason urged by the appellant.

Next, he claims the proof is insufficient to support such allegations as to prior convictions. A fingerprint expert testified that prints he had taken from the appellant were identical with prints in the pen packets in connection with Cause Nos. 79,149 and 107,799. The indictment in Cause No. 107,799 was introduced. The appellant took the stand and admitted he had been convicted in each of said causes and he had been convicted in Cause No. 107,799 after he got out of the penitentiary as a result of the conviction in Cause No. 79,149. We conclude the evidence is sufficient to sustain the enhancement paragraphs of the indictment.

There is likewise no merit to the contention that he was not properly admonished. The court carefully inquired and determined appellant was pleading guilty because he was guilty and for no other reason, that no one had threatened him or promised him anything to induce his guilty plea, that he was not under any delusive hope of a pardon, that his plea was being entered freely and voluntarily. The court also made inquiries as to appellant’s competency to stand trial. The admonishment was clearly in accord with the version of Article 26.13, supra, in effect at the time of the guilty plea.

The judgment is affirmed.

      . There was, however, a hearing on a motion to quash the enhancement paragraphs on the ground that there were not sufficient allegations to show that the second prior conviction came after the first prior conviction in point of time. This motion was denied.


text:
    Ex parte Keith Lambert MILLER.
    No. 54709.
    Court of Criminal Appeals of Texas.
    June 14, 1977.

      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 an order of the 47th District Court of Potter County denying relief on appellant's application for writ of habeas corpus.

On September 30, 1974, appellant was convicted of burglary, imposition of sentence was suspended, and he was placed on probation for five years. On October 20, 1976, probation was revoked, notice of appeal was given, and appellant was released on bond pending appellate review of the revocation order.

On February 26, 1977, while the appeal was pending, appellant allegedly committed the offense of driving while intoxicated. On March 3 the judge of the 47th District Court ordered issuance of a capias for his arrest. This order recites that the appellant was granted probation and that he is alleged “to be in violation of his probation.” See, Article 42.12, Sec. 8(a), V.A.C.C.P. Appellant has been confined pursuant to that capias.

Appellant challenges the legality of his confinement. Apparently he takes the position that he cannot be arrested under Art. 42.12, supra, for a violation of his probation committed after his probation has already been revoked. This issue turns on whether appellant was subject to the conditions of his probation pending appeal of the trial court’s earlier revocation order.

Nicklas v. State, Tex.Cr.App., 530 S.W.2d 537, stands for the proposition that the probationary period continues to run unabated until it expires or until a revocation order is entered and becomes final, either by failure to take an appeal or upon issuance of a mandate of affirmance if an appeal is taken. In Nicklas, the defendant was placed on a two-year probationary period on June 3, 1971. This Court held that the probationary period expired on June 3, 1973, two years after it began, notwithstanding the fact that an order of revocation had been entered on December 8,1972, and notice of appeal of the revocation order was given on December 15, 1972. The probationary period was not tolled during the week from the order of revocation to notice of appeal, nor was it tolled while the appeal was pending after notice of appeal. Cf. Ex parte Roberts, Tex.Cr.App., 547 S.W.2d 632.

It would be inconsistent to hold on the one hand that during an appeal from a revocation of probation the period of probation continues to run and the probationer earns time toward discharge of that period and, on the other hand, that the probationer during that same time is not subject to the terms of probation and to supervision under Article 42.12, supra. Accordingly, we hold that, notwithstanding the prior order of revocation and appeal, appellant remained subject to the terms of probation and subject to arrest for any violation of those terms during the remainder of the period of probation.

Appellant is lawfully confined pursuant to the trial court’s capias issued after he allegedly violated a condition of his release. Article 42.12, Sec. 8(a), supra. We uphold the trial court’s denial of relief and affirm the judgment.


author: ONION, Presiding Judge. ODOM, Judge.

text:
    Fred MEANS, Appellant, v. The STATE of Texas, Appellee.
    No. 54975.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Thomas R. Grett, Longview, for appellant.
    Odis R. Hill, Dist. Atty. and Quita Russell, Asst. Dist. Atty., Longview, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a purported appeal from a conviction for the unauthorized use of a motor propelled vehicle under the provisions of V.T.C.A., Penal Code, § 31.07. Punishment was assessed at three (3) years in the Department of Corrections.

From the record before this court the appeal must be dismissed since the sentence was untimely pronounced.

The record reflects that on July 21, 1976, the appellant, represented by counsel, waived the right to be charged by indictment and was charged by information. He also waived trial by jury and entered a guilty plea before the court. He was admonished by the court as to the consequences of his plea and took the witness stand and made a judicial confession. The court then assessed punishment and stated: “I’ll give you ten days before sentencing.” This reference apparently meant the ten day period in which to file a motion for new trial (Article 40.05, Vernon’s Ann.C.C.P.) or motion in arrest of judgment (Article 41.02, Vernon’s Ann.C.C.P.). In the record and dated the same date as the trial (July 21, 1976), is an instrument entitled “Waiver of Motion for New Trial and Right of Appeal.” Two days later on July 23,1976, the appellant did file a motion for new trial stating that it was being filed “with leave of the court first had and obtained.”

On August 2, 1976 the court sentenced the appellant, but there is no showing that the court overruled the motion for new trial prior to pronouncing sentence.

Article 42.03, § 1, Vernon's Ann.C. C.P., provides that a sentence shall be pronounced “at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.” Article 40.05, supra, and Article 41.02, supra, respectively provide that a motion for new trial and a motion in arrest of judgment must be made ten days after conviction. See Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975); Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976). Therefore, sentence is not to be pronounced until after the expiration of the time for filing such motions in absence of a valid waiver of the time in which to file such motions. Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969); Payne v. State, 471 S.W.2d 815 (Tex.Cr.App.1971). Further, we stated in Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.1969), that where a motion for new trial or motion in arrest of judgment is timely filed, sentence should not be pronounced until such motions have been overruled following a hearing or by operation of law or unless the motion or motions are withdrawn accompanied by a waiver of any unexpired time in which to file another such motion. See Adams v. State, supra; Carpenter v. State, 541 S.W.2d 446 (Tex.Cr.App.1976).

In the instant case sentence was pronounced on August 2, 1976 without any showing the court overruled the motion for new trial or that the motion was withdrawn. The timely motion for new trial would not have been overruled by operation of law until August 12, 1976, twenty days after it was filed. St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). The sentencing having been improperly and untimely pronounced without the timely filed motion for new trial having been overruled by action of the court or by operation of law and at a time when the motion had not been withdrawn, the sentence is voidable and the appeal must be dismissed. See Ex parte Shields, 550 S.W.2d 670 (Tex.Cr. App., Opinion on State’s Motion for Rehearing, May 18, 1977). Upon receipt by the District Clerk of our mandate of dismissal, the procedure to be followed is that discussed in Woods v. State, supra; Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976); Middleton v. State, 537 S.W.2d 25 (Tex.Cr.App.1976).

It is observed that appellant’s appointed counsel on appeal has filed a brief in which he concluded the appeal is wholly frivolous and without merit. Following the issuance of the mandate of dismissal, counsel should brief the question of whether waiver of an indictment for the offense of theft of property of $200 or more but less than $10,000, see V.T.C.A., Penal Code, § 31.03(d)(4), will justify the filing of an information, without indictment, charging the offense of unauthorized use of a motor propelled vehicle. See V.T.C.A., Penal Code, § 31.07. Further, counsel should brief the question of the significance of the decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), might have in light of the plea bargain agreement reflected by the record before us.

Following the issuance of the mandate of dismissal the trial court maintains its right to grant a new trial under Article 40.09, Vernon’s Ann.C.C.P.

For the reasons stated, the appeal is dismissed.

ODOM, Judge.

I concur in the dismissal of this appeal. Because the sentence was untimely pronounced, this Court is without jurisdiction. Although the majority decline to expressly acknowledge that lack of jurisdiction is the cause for dismissal, the fact of dismissal in this case necessarily implies a lack of jurisdiction because no lesser defect would support our action.

The Constitution of Texas mandates this Court’s appellate jurisdiction:

“The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with the limits of the State in all criminal eases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.” Art. 5, Sec. 5, Vernon’s Ann.Tex.Const.

The Legislature, acting pursuant to the power granted by this provision, has created a statutory right of appeal in Art. 44.02, V.A.C.C.P., which provides:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.”

Only jurisdictional defects can defeat a defendant’s right to have his appeal heard by this Court. In Chumbley v. State, 137 Tex.Cr.R. 491, 132 S.W.2d 417 (1939) it is written: ,

“Every person who takes an appeal from a conviction of the county or district court over which this court has been given jurisdiction is legally entitled to have his cause reviewed.”

In Young v. State, 172 S.W.2d 500 (Tex.Cr.App.1943), the Court stated:

“The right of appeal, where authorized, is a valuable right and should be denied only where the express mandate of law so provides.”

The majority opinion, by a careful choice of words, has dismissed this appeal without expressly acknowledging our lack of jurisdiction:

“The sentencing having been improperly and untimely pronounced without the timely filed motion for new trial having been overruled by action of the court or by operation of law and at a time when the motion had not been withdrawn, the sentence is voidable and the appeal must be dismissed. See Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App., Opinion on State’s Motion for Rehearing, May 18, 1977).”

The fact of dismissal, however, necessarily means we are without jurisdiction, because to dismiss this case if we did have jurisdiction would be a violation of this Court’s constitutional mandate to hear all appeals where our jurisdiction is invoked (unless subsequently waived) and would be a denial of appellant’s statutory right to have his appeal heard today, and of his constitutional rights to due process and equal protection of the laws.

The exercise of this Court’s appellate jurisdiction is not a matter of discretion. The absence of discretion in this matter, and the constitutional powers, duties, and rights involved in the determination of whether dismissal will be ordered, further underscore the finding of lack of jurisdiction upon which the dismissal of this appeal necessarily rests.

If the majority dispute this conclusion, let them inform the citizens of Texas and our bench and bar on what grounds this Court may refuse to hear this appeal in the face of jurisdiction to hear it. Their failure to do so, and the very disposition of this case, acknowledge the validity of the dissent in Ex parte Shields, supra, on motion for rehearing, and the unanimous majority in that case on original submission. The majority in Shields on rehearing, however, declined even to address the issue before the Court in that case, although that issue was stated quite plainly by the petitioner therein, as set out in the dissenting opinion on rehearing. If this Court had the power to hear Shields’ original appeal, as assumed by the majority on rehearing in that case, then the Court has the power to hear appellant’s appeal in this case. That we do not hear it shows we may not hear it. The dismissal of this case, therefore, is either on jurisdictional grounds or is in flagrant disregard of this Court’s constitutional mandate and appellant’s rights. The presumption should be that this Court today acts in accordance with its constitutional duties and, therefore, that it today orders this dismissal on jurisdictional grounds.

On this basis, I concur in the dismissal.

      . A waiver of the right to appeal is not binding on a defendant when made after judgment but prior to sentence. See Ex parte Thomas, 545 S.W.2d 469 (Tex.Cr.App.1977); Bailey v. State, 543 S.W.2d 653 (Tex.Cr.App.1976). Since the waiver of a motion for new trial comes before the sentence, the advisability of combining a waiver of a motion for new trial with a waiver of the right of appeal is questionable in light of the cases cited. It is further observed that the waiver here makes no reference to a waiver of a motion in arrest of judgment.

      . After the sentencing the court asked appellant’s counsel if he wanted ten days in which to file a motion for new trial and counsel indicated he did. The motion, of course, had already been filed on July 23rd. It is here noted that where the court permits the belated filing of a motion for new trial where sentence has been pronounced, sentence should be set aside and an order entered to that effect. Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); Adams v. State, supra; Duke v. State, 462 S.W.2d 596 (Tex.Cr.App.1971). On August 13, 1976, appellant’s counsel withdrew his motion for new trial. Since no such motion was filed after sentence, reference was obviously to the motion filed on July 23rd which had not been earlier withdrawn. On the same date appointed trial counsel withdrew and other counsel was appointed for the purpose of appeal.
      It is further observed that since more than ten days had expired from the time of conviction until the day of sentencing without the filing of a motion in arrest of judgment the right to file such motion had expired by the time of sentencing and there was no need for the record to reflect a waiver of the time in which to file such motion prior to sentencing.

      . Chumbley v. State, and Young v. State, both supra. Contrast our discretionary jurisdiction in original habeas corpus matters, as discussed in Ex parte Norvell, Tex.Cr.App., 528 S.W.2d 129, 130.


text:
    Ex parte Paul Wayne AUGUST.
    No. 55127.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Paul Wayne August, pro se.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order of the trial court entered in a habeas corpus proceeding in which appellant sought a reduction in bail pending appeal of a criminal conviction.

The record reflects that on November 4, 1976, appellant gave notice of appeal from an order of the trial court revoking his probation in a burglary of a building conviction. Appellant was sentenced to imprisonment for ten (10) years; and, on December 3, 1976, bail, pending appeal, was set at $10,000.

On April 4, 1977, appellant filed a pro se application for writ of habeas corpus seeking a reduction in bail. The application alleged that appellant was indigent and that bail in the amount of $10,000 was excessive.

On April 6, 1977, the trial court granted the writ but denied relief, without a hearing, finding that the application did not state facts which, if true, would entitle appellant to relief. See Article 11.15, Vernon’s Ann.C.C.P. We have concluded that the judgment of the trial court must be reversed and the cause remanded for a hearing on appellant’s application for writ of habeas corpus.

At first blush, it would appear that the setting of bail at $10,000 for one appealing a 10-year sentence is not unreasonable. To so hold, however, would be to say that, as a matter of law, such bail is never unreasonable. We decline to so hold.

Undoubtedly, the sentence imposed upon conviction for crime is one of the most important circumstances to be considered in determining the amount of bail pending appeal. The Legislature considered it of great significance by denying bail to those appealing criminal convictions with sentences in excess of 15 years. See Article 44.04, Vernon’s Ann.C.C.P. But, the sentence imposed is not the only circumstance to be considered. See Article 17.15, Vernon’s Ann.C.C.P. Certainly appellant’s alleged indigency, while not controlling, is also a circumstance to be considered. Ex parte Clark, 537 S.W.2d 40 (Tex.Cr.App.1976).

Although the burden of proof is upon appellant to show that the $10,000 bail which was set was excessive, see Holliman v. State, 485 S.W.2d 912 (Tex.Cr.App.1972); Ex parte Clark, supra, it would be pure speculation to conclude, as a matter of law, that he will be unable to sustain it, for there may be other circumstances which would show that the $10,000 is unreasonable.

The judgment is reversed and the cause is remanded to the trial court for a hearing on the allegations in appellant’s habeas corpus application.

      . The trial court has apparently placed heavy reliance on the fact that appellant had a prior bond forfeiture for failure to appear in another case. There is nothing before us to show that the forfeiture went to final judgment or that appellant would be unable to show exonerating causes. See Article 22.13, Vernon’s Ann.C.C.P. Perhaps at the habeas corpus hearing appellant will be able to satisfactorily explain his failure to appear in the other case.