author: ONION, Presiding Judge.

text:
    Mildred Opal BATTEN, Appellant, v. The STATE of Texas, Appellee.
    No. 50945.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.

      Milton E. Douglass, Jr., Wichita Falls, for appellant.
    Timothy D. Eyssen, Dist. Atty., and Roger E. Towery, Asst. Dist. Atty., Wichita Falls, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for capital murder [V.T.C.A. Penal Code, Sec. 19.03(a)(3)], wherein the jury assessed the punishment at life imprisonment.

The appellant was charged with hiring one James Bates to murder her husband, George Batten.

At the outset, we are confronted with the most serious question in the case— that the trial court erred in denying the appellant fifteen peremptory challenges to which she was entitled in a capital case under Article 35.15(a), Vernon’s Ann.C.C.P., as amended.

The record reflects that the alleged offense occurred on June 29, 1974, the indictment was presented on July 17, 1974, and the trial commenced on September 16,1974.

Both parties assert that the trial court took the position that since the State had not filed written notice it would seek the death penalty such penalty was no longer in the case and limited the number of peremptory challenges for the appellant to ten, which is the proper number for non-capital cases. He further refused a written request by the appellant to examine the jurors separate and apart (Article 35.17, Vernon’s Ann.C.C.P., as amended) and instructed the jury at the voir dire examination that the only penalty was life imprisonment if the appellant was found guilty of capital murder. After the jury found the appellant guilty of capital murder, the court at the penalty stage of the trial did not submit the questions required by Article 37.071, Vernon’s Ann.C.C.P., but simply instructed the jury that the “punishment authorized for this offense is confinement in the State Penitentiary for life.” The jury in its verdict assessed life imprisonment.

The parties agree that the trial court in limiting the number of peremptory challenges apparently relied upon the provisions of Article 1.14, Vernon’s Ann.C.C.P., 1965, as amended 1967, and the decisional law thereunder that where the State fails to give written notice it will seek the death penalty such penalty is waived, although the nature of the offense is not changed and certain procedural requirements relative to capital cases need not be met.

However, said Article 1.14 was amended in 1973 to simply read:

“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.” (Acts 1973, 63rd Leg., p. 1127, ch. 426, Art. 3, Sec. 5, effective June 14, 1973)

This amendment was a part of the statutory scheme adopted for the trial of capital murder cases following the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In the same bill Article 35.15(b), Vernon’s Ann.C.C.P., 1965, was amended. It had provided that in non-capital cases “and in capital cases where the State has made known to the court that it will not seek the death penalty” each party was entitled to ten peremptory challenges. The 1973 amendment eliminated the phrase in quotes, but it did not affect Subsection (a) of the statute which provided for fifteen peremptory challenges for each party “[i]n capital cases.” At the same time Article 35.17, Vernon’s Ann.C.C.P. (voir dire examination), was amended. Section 1 thereof was rewritten, and the references to “capital case in which the state’s attorney has made known that he will not seek the death penalty” was deleted. In Section 2 thereof the phrase “when the state’s attorney has made known he will seek the death penalty” was replaced with the phrase “In a capital felony case . . . .” The amendments to Articles 1.14, 35.15 and 35.17, supra, clearly removed any requirement that the State give written notice of its intention to seek the death penalty and clarified the number of peremptory challenges available in view of such amendment. These amendments became effective June 14, 1973, prior to this 1974 offense and trial, and must be considered in light of the provisions of the statutory scheme relating to criminal homicide, including the classification of felonies into categories, including capital felonies (V.T.C.A. Penal Code, Sec. 12.04), the provisions for punishment for a capital felony (life or death, V.T.C.A. Penal Code, Sec. 12.31), as well as the provisions of V.T.C.A. Penal Code, Sec. 19.03, defining capital murder, which Section on January 1, 1974, superseded Article 1257, Vernon’s Ann.P.C., as amended in 1973.

In light of the foregoing, it is clear that the trial court was in error in holding that the State had waived the death penalty and in limiting the number of peremptory challenges, but we must determine if such error was reversible error.

It is observed that the appellant properly objected to the refusal of the court to permit her fifteen peremptory challenges, used the ten challenges permitted, and complained that there were still jurors who were objectionable to her. Cf. Peak v. State, 522 S.W.2d 907 (Tex.Cr.App.1975); Chappell v. State, 519 S.W.2d 453 (Tex.Cr.App.1975). She also requested additional challenges. See Acosta v. State, 522 S.W.2d 528 (Tex.Cr.App.1975).

In Boles v. State, 102 Tex.Cr.R. 634, 279 S.W. 261 (1926), two defendants were jointly tried for murder. The trial court limited the defendants to a total of fifteen peremptory challenges in all rather than eight each as the statute (Article 691, Vernon’s Ann.C. C.P., 1916) then required. The trial judge qualified the bills of exception by stating he had overlooked the fact that there was a joint trial, his attention was not directed to the same, and no injury was shown. In reversing, this court said:

“We think the action of the learned judge in this instance was clearly erroneous, and that under the law it was not incumbent upon the appellants to show injury, but that, when they are deprived of this right to exercise their full number of peremptory challenges, there is but one thing for this court to do, and that is to reverse the case.”

In Benson v. State, 95 Tex.Cr.R. 311, 254 S.W. 793 (1923), this court held that if the privilege of exercising peremptory challenges conferred by statute is denied the right to a fair trial is abridged.

In several cases decided under former Codes of Criminal Procedure, it was held that the defendant was entitled to his fifteen peremptory challenges in a capital case even though the prosecutor had announced he would not seek or ask for the death penalty. This was so because such announcement did not have the effect of removing death as a possible penalty and the jury theoretically could still impose death. Therefore, the refusal to permit the fifteen challenges was error. See Kerley v. State, 89 Tex.Cr.R. 199, 230 S.W. 163 (1921); Viley v. State, 92 Tex.Cr.R. 395, 244 S.W. 538 (1922) (Opinion on Rehearing). See also Perez v. State, 99 Tex.Cr.R. 489, 244 S.W. 548 (1922).

It was also true in trials under former Codes that if death was not a possible penalty, regardless of the nature of the offense charged in the indictment, it would not be error to refuse the fifteen peremptory challenges applicable to capital cases. In Cheek v. State, 4 Tex.App. 444 (1878), the Court of Appeals in 1878 held that where a person was charged with a capital offense but convicted of a lesser included offense and then awarded a new trial he could not upon re-trial be convicted of any higher offense than the one of which he was originally convicted and upon re-trial was limited to the challenges which were applicable thereto. See also Hudson v. State, 28 Tex.App. 323, 13 S.W. 388 (1890); Blackwell v. State, 29 Tex.App. 194, 15 S.W. 597 (1890); McKinney v. State, 31 Tex.Cr.R. 583, 21 S.W. 683 (1893); Welcome v. State, 438 S.W.2d 99 (Tex.Cr.App.1969); Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969). In Walker v. State, 28 Tex.App. 503, 13 S.W. 860 (1890), there was no error in refusing to order a special venire applicable to capital cases in view of the fact that it was undisputed the defendant was less than 17 years old at the time of the alleged offense and thus could not be given the death penalty under Article 35 of the then existing Penal Code despite the fact he was charged with a capital offense. Cf. Cheek v. State, supra. And it has been held that when the capital feature of an indictment for robbery by assault with a firearm has been abandoned the defendant is not entitled to a special venire. Caballero v. State, 171 Tex.Cr.R. 133, 346 S.W.2d 343 (1961). As earlier noted under the provisions of Article 1.14, Vernon’s Ann.C.C.P., 1965, as amended, when the State waived the death penalty in a capital case, “the case was in effect reduced to a noncapital case.” Clardy v. State, 436 S.W.2d 535 (Tex.Cr.App.1968). See also Elliott v. State, 412 S.W.2d 320 (Tex.Cr.App.1967); Smith v. State, 455 S.W.2d 748 (Tex.Cr.App.1970). It is clear that these cases were decided on the “penalty” view of the ease. If the death penalty was not legally possible, then it was not a capital case. It is noted that Article 47, Vernon’s Ann.P.C., 1925, provided in part: “An offense for which the highest penalty is death is a capital felony.” In such former Code cases, although death was no longer a possible penalty, the defendant was subject to the remaining range of punishment provided by statute, which was usually a wide range of punishment.

It is observed that said Article 47 has now been replaced by V.T.C.A. Penal Code, Secs. 12.02, 12.03 and 12.04. Sec. 12.02 divides offenses into felonies or misdemeanors; Sec. 12.03 classifies misdemeanors; Sec. 12.04 classifies felonies and provides in Subsection 1 for “capital felonies.” The punishment for a capital felony is provided at death or life imprisonment by V.T.C.A. Penal Code, Sec. 12.31. We do not otherwise find capital felony defined in the new Penal Code. The language quoted above from former Article 47 was not brought forward.

Despite any former Code cases, the appellant calls attention to the Practice Commentary following V.T.C.A. Penal Code, Sec. 19.03 (Capital Murder), under which the instant case was prosecuted, which reads in part:

“Section 19.03 is a separate offense, punishable by a mandatory sentence of death or life imprisonment, see Section 12.31, and once an indictment is presented for capital murder the prosecutor may not waive the death penalty as he could under C.C.P. art. 1.14 before that article was amended by the Capital Felony Act of 1973. The offense’s mandatory nature is the first of the constitutional bases touched by the legislature in recognition of the fact that three of the majority in Furman objected to the death penalty essentially because of its discretionary application.”

In addition to Section 19.03 appellant cites V.T.C.A. Penal Code, Sec. 12.04 (Classification of Felonies), which classified felonies into four categories, including “(1) capital felonies,” and also notes the special procedure provided in capital cases as provided by Article 37.071, Vernon’s Ann.C. C.P., as well as the amendments to Articles 1.14 and 35.15 and 35.17, Vernon’s Ann.C. C.P., previously discussed. Appellant argues that by virtue of such enactments the Legislature has mandated the “category of cases” view of capital murder as opposed to a “penalty” view. Admitting that there was some benefit in the trial court’s erroneous exclusion of the death penalty, appellant nevertheless argues that the procedure provided by law nevertheless applied in view of the “category of cases” view and the fact that both the minimum and maximum punishment under the circumstances of the instant case was the mandatory penalty of life imprisonment.

Appellant cites United States v. Watson, 496 F.2d 1125 (4th Cir. 1973), where the defendant was charged under 18 U.S.C., Sec. 1111, with first degree murder. The trial was a post-Furman trial, and thus the. Government did not seek the death penalty. The- defendant was sentenced to life. On appeal the defendant contended the court erred in not granting him two appointed counsel as provided in 18 U.S.C., Sec. 3005, in capital cases. The Government argued it was not a “capital crime” at the time the additional attorney was requested in light of Furman. Here, the issue of whetheb capital offenses should be considered as a separate classification of offenses or only as applicable where the extreme penalty is sought vis-a-vis the procedure statutorily required for capital crimes was squarely joined. The case was reversed for the failure to follow the procedure in capital crimes of providing two attorneys. The court said:

“Were we convinced that defendant’s exposure to the risk of the imposition of the death penalty was the sole reason for the two-attorney requirement in § 3005, we would be inclined to agree with the government. However, we believe that there is a significant chance that other considerations also underlay the two-attorney requirement.
⅝ ⅝ * ⅛ # ⅜
“It is not unlikely that Congress may have also sought to buttress the defense with two attorneys to provide greater assurance that a defendant’s rights would be fully observed. As a consequence, we are unable to say, absent a clear legislative expression, that the possibility of the imposition of the death penalty was the sole reason why Congress gave an accused the right to two attorneys.
⅜ ⅜ ⅜ ⅜ * ⅜5
“We therefore hold that, notwithstanding Furman, defendant had an absolute statutory right to two attorneys under § 3005.” Id. at 1128-1129.

We agree that in the wake of Fur-man the Legislature has adopted a “category of cases” view and has adopted a mandatory procedure to be followed in capital cases where the extreme penalties of death or life imprisonment are involved, and that it is not possible to say, absent a clear legislative expression, that the possibility of the imposition of the death penalty was the sole reason the Legislature mandated the procedure to be used in capital murder cases. Under the statutory scheme adopted, the State may not waive the death penalty, but even in cases such as the instant one where such waiver has been improperly permitted, the capital case procedures, including the right to fifteen peremptory challenges, are still applicable even though the only possible penalty under the circumstances would be life imprisonment.

The State points out that Article 35.13, Vernon’s Ann.C.C.P., 1965, as amended in 1967, provides:

“A juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance or challenge first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause.”

The State argues that since this Article has not been amended since 1967 it would by implication either require or allow the State to continue to give notice if the State seeks the death penalty. In light of the amendments to Articles 1.14, 35.15 and 35.17, Vernon’s Ann.C.C.P., expressly eliminating reference to giving such notice and indicating the legislative intent by the later enactments, we cannot agree with the State’s position. The language in Article 35.13, Vernon’s Ann.C.C.P., was possibly overlooked in the reform of the law following Furman and does not, in our opinion, nullify the obvious intent of the Legislature as reflected by the later enactments.

Being convinced that the court fell into error in refusing to allow the appellant fifteen peremptory challenges in the trial of this capital case, the judgment must be reversed and the cause remanded.

Having concluded that this was a capital offense, we hold the trial court also erred in refusing the demand to have the jurors examined on voir dire individually and apart from the entire panel. See Article 35.17, supra, as amended.

The judgment is reversed and the cause remanded.

      . Although both parties assert that it was the trial judge who took this position, it is not clear from the record just what resulted in the State’s waiver of the death penalty. We do find several references by the trial judge to the fact that the State had waived the death penalty, but the reasons for such waiver are not clearly reflected in the appellate record.

      . The 1967 version of Article 1.14, supra, reads as follows:
      “The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case in which the State has made known in open court in writing at least 15 days prior to trial that it will seek the death penalty. No case in which the State seeks the death penalty shall be tried until 15 days after such notice is given. When the State makes known to the court in writing in open court that it will not seek the death penalty in a capital case, the defendant may enter a plea of guilty, nolo contendere, or not guilty before the court and waive trial by jury as provided in Article 1.13, and in such case under no circumstances may the death penalty be imposed.”

      . See, e. g., Smith v. State, 455 S.W.2d 748 (Tex.Cr.App.1970).

      . This 1973 amendment caused the statute to read just as its predecessor under the former Code of Criminal Procedure had read. See Article 11, Vernon’s Ann.C.C.P., 1925.

      . Now see V.T.C.A. Penal Code, Sec. 8.07(e); former Article 31, Vernon’s Ann. P.C., 1925; Ex parte Adams, 383 S.W.2d 596 (Tex.Cr.App.1964); Ex parte Enderli, 110 Tex.Cr.R. 629, 10 S.W.2d 543 (1928).

      . It is also observed that Article 35.16(b)(1) relating to challenges for cause still provides: “That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty . . . .” For the same reasons stated above with regard to Article 35.13, we do not conclude such language nullifies the obvious legislative intent expressed by later enactments.

      . In the event of a retrial the appellant will not be able to waive trial by jury in light of Article 1.14, Vernon’s Ann.C.C.P. (set forth in the body of the opinion), and it is here noted that the doctrine of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), will not normally be involved so that death will be an applicable penalty upon retrial.

        Pearce held that neither the double jeopardy provision nor the due process clause of the Fourteenth Amendment absolutely bars imposition of a more severe sentence upon re-conviction of a defendant who has had original conviction set aside at his own behest, but that due process of law requires that vindictiveness against a defendant for having successfully attacked his prior conviction must play no part in the punishment assessed after he receives a new trial. Since a defendant’s fear of such vindictiveness may unconstitutionally deter a defendant from attacking his earlier conviction, due process requires a defendant be freed of apprehension on the part of the sentencing judge.

      In order to insure the lack of vindictiveness on the part of the sentencing judge, the Pearce opinion required the judge to make certain findings before the punishment assessed at the second trial could be more severe than at the first trial.
      However, in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the United States Supreme Court held that the imposition of a higher penalty by a jury upon retrial after a reversal of a state conviction did not violate the double jeopardy provision nor due process clause of the Fourteenth Amendment where the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. See also Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974), and cases there cited; Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975).


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Collie C. CREEK, Appellant, v. The STATE of Texas, Appellee.
    No. 50964.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.
    Aubrey L. Roberts, Jr., Sweetwater, for appellant.
    Gary R. Price, Dist. Atty., Brownwood, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for theft. Punishment was assessed by the jury at two years.

The indictment alleged that the offense occurred on or about March 29, 1972, and the record reflects that trial was in September, 1974.

Appellant contends that the court erred “in failing in its charge to the jury, to apply the law of accomplice testimony to the facts in evidence.”

The record reflects that the court charged the jury abstractly relative to the law governing testimony of an accomplice witness, the pertinent part of the charge reading:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed and the corroboration is not sufficient if it merely shows the commission of the offense.”

Appellant by timely objection to the court’s charge complained of the court’s failure to instruct the jury that Terry Goza was an accomplice witness.

Goza, a co-indictee who had been tried, convicted and had served his time, testified for the State. When one is a co-indictee and testifies for the State against an accused, he is an accomplice witness as a matter of law. Hendricks v. State, Tex.Cr.App., 508 S.W.2d 633. It was error for the court to fail to instruct the jury that Goza was an accomplice as a matter of law. Bentley v. State, Tex.Cr.App., 520 S.W.2d 390. The State concedes that Goza was an accomplice as a matter of law but urges that if the court failed to properly instruct on the law of accomplice witness the error is harmless where the evidence clearly warranted a conviction independently of the accomplice’s testimony. The abstract charge given by the court did not serve to instruct the jury that Goza was an accomplice as a matter of law. In light of the argument advanced by the State, we review the evidence.

The accomplice witness Goza testified that on the date in question he and appellant went to a utility right of way near the Goldbusk community in Coleman County. Goza climbed the poles and cut copper wire therefrom which he and appellant rolled and placed in their car. Goza and appellant drove to Sweetwater where they sold what was determined to be about 758 pounds of copper wire to one Leroy Sells for thirty-seven cents a pound. The money from the sale of the wire was split between Goza and appellant.

Wayne Farley, who lived eight miles south of Goldbusk, testified that on the date in question he observed a Ford Thunderbird with license plates “DHT996” parked on a dirt road 100-150 yards east of his mailbox.

L. R. Sells testified that he was in the business of buying scrap iron and metal in Sweetwater and that on March 30, 1972, he purchased rolls of copper wire from appellant and Goza.

A sales ticket reflected Sells had purchased “number one copper, 758 pounds, $280.46.” The sales ticket showed the license number “BHT996” and a signature “Jim Carver.” Sells stated that the number on the ticket was the license number of the vehicle containing the wire and that appellant and Goza were in a Thunderbird automobile. According to Sells, the person he bought the copper wire from signed the name “Jim Carver” on the ticket. Other testimony of Sells indicated the details of the transaction were carried on between appellant and Sells. ”

In Hendricks v. State, supra, it was contended that the trial court erred in failing to charge that a co-indictee, who testified for the State, was an accomplice witness as a matter of law. In Hendricks, it was stated:

“It is to be noted that Hicks [accomplice witness] gave damaging testimony against appellant when he testified about getting their business straight which included killing, if necessary, and that the two went armed to the place of the homicide.
“When one is a co-indictee and testifies for the State against an accused, he is an accomplice witness as a matter of law.
“The trial court’s failure to respond to the objection was error and necessitates a reversal of the judgment. See Lindsey v. State, 146 Tex.Cr.R. 459, 176 S.W.2d 192, and Herrera v. State, 115 Tex.Cr.R. 526, 27 S.W.2d 211.
“Much of the incriminating testimony of Hicks was not covered by other witnesses. Even if there be sufficient evidence without the testimony of Hicks, we cannot conclude that the error in the charge was harmless. Cf. Allen v. State, Tex.Cr.App., 461 S.W.2d 622, and Gonzales v. State, Tex.Cr.App., 441 S.W.2d 539.” Also, see and cf. Bentley v. State, 520 S.W.2d 390.

As in Hendricks, much of the incriminating testimony in the instant case of the accomplice witness Goza was not covered by other witnesses. In fact, Goza was the only witness whose testimony constituted direct evidence of appellant’s involvement in the crime. Assuming there was sufficient evidence to sustain the conviction without the testimony of Goza, we cannot conclude that the error in the charge was harmless.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: ODOM, Judge. ONION, Presiding Judge

text:
    Melvin Eugene THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 51013.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.

      James P. Finstrom (Court appointed), Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Gary Love, Donald J. Driscoll and Billy Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The offense was robbery by firearms; punishment was assessed at eleven years.

In the first ground of error, appellant contends the trial court erred, under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in admitting into evidence a co-defendant’s confession that implicated the appellant.

We do not agree. Bruton v. United States, supra, stands for the proposition that it is a violation of a defendant’s Sixth Amendment right of confrontation to introduce into evidence a co-defendant’s confession inculpating the defendant, provided that the co-defendant does not testify at trial. If, however, the co-defendant does testify, then he is available for cross-examination and there is no denial of the right of confrontation. As the United States Supreme Court has held:

“[Wjhere a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.”

Nelson v. O’Neil, 402 U.S. 622, 630, 91 S.Ct. 1723, 1727, 29 L.Ed.2d 222 (1971). This is precisely what happened in the instant case. No error of constitutional import occurred by introduction of the co-defendant’s confession into evidence.

Moreover, no violation of our eviden-tiary law concerning hearsay occurred. The confession was introduced into evidence by the State after the co-defendant who allegedly made the statements therein had testified favorably to appellant and contradictory to the confession. The trial court instructed the jury that the confession, even if found by the jury to be voluntary, was not to be considered as evidence of guilt of any of the co-defendants except the maker thereof. It was not error to admit the confession into evidence, and the ground of error is overruled.

In the second ground of error, appellant contends the trial court erred in stating to the jury, immediately after having charged them upon the law of assault and battery, that “I bet I have read that a hundred times and I still don’t know what it means, but it’s a statute so I cherish it.” The record reflects no objection to the trial court’s comment. Nothing is presented for review. The ground of error is overruled.

The judgment is affirmed.

ONION, Presiding Judge

(concurring).

I concur in the result reached by the majority but do not believe the majority has made clear just what transpired in this joint trial of the appellant along with Chester Jackson and Kenneth Ray Price.

Initially, appellant contends the court erred in admitting into evidence at the joint trial the confession of Chester Jackson which implicated him. Reliance is had upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton the Supreme Court, overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), held that despite instructions to the jury to disregard the implicating statements in determining the co-defendant’s guilt or innocence, admission at a joint trial of a defendant’s extrajudicial confession implicating the co-defendant violated the co-defendant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment.

Subsequently in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), it was held that Bruton was applicable to the states by virtue of the Fourteenth Amendment and was to be applied retroactively. The Supreme Court has had occasion to further discuss Bruton errors. See, e. g., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). Likewise, this court has had occasion to consider Bruton-type errors. See, e. g., Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Evans v. State, 500 S.W.2d 846 (Tex.Cr.App.1973); Hearne v. State, 500 S.W.2d 851 (Tex.Cr.App.1973); Moore v. State, 504 S.W.2d 904 (Tex.Cr.App.1974) (footnote #1); Ex parte Smith, 513 S.W.2d 839 (Tex.Cr.App.1974); Lewis v. State, 521 S.W.2d 609 (Tex.Cr.App.1975). Cf. Griffin v. State, 486 S.W.2d 948 (Tex.Cr.App.1972).

In the instant case we have a little different fact situation than in any of the above cited cases.

During the State’s case in chief, no effort was made to offer the confession of the co-defendant Jackson. After the State rested its case, Jackson took the stand in his own behalf. He denied the robbery, and contended he only shot the store clerk in self-defense and testified favorably as to the appellant exculpating him of any wrongdoing. On direct examination, he related he had given a statement to the police. On cross-examination, he identified his signature on State’s Exhibit # 15 and admitted making a statement, but when he denied his rights had been explained to him prior to the statement, the State called the detective to whom the statement had been given and in the absence of the jury the voluntariness and admissibility of the confession were established. Thereafter in the jury’s presence the State sought to impeach Jackson by asking him about certain statements in the confession which were contradictory of his earlier testimony. The confession itself was not introduced and none of the questions asked for the purpose of impeachment implicated the appellant. Jackson was cross-examined by the appellant and testified again appellant was not guilty of any offense. Subsequently the detective was recalled in the presence of the jury and identified certain statements in the confession as being made by Jackson. Here again, none of the questions asked showed that the confession implicated the appellant. The court charged that such evidence (concerning questions about certain statements) was limited to the purpose of impeachment and was not to be considered as evidence of the appellant’s guilt.

Since Jackson’s confession which implicated the appellant was never introduced into evidence and the questions asked about the confession and the answers given (for the purpose of impeaching Jackson) did not implicate the appellant and since Jackson testified and was cross-examined by the appellant, giving testimony favorable to the appellant, there is no Bruton error involved for the appellant has not been denied any “confrontation and cross-examination” rights protected by the Sixth and Fourteenth Amendments which Bruton was designed to protect.

While the co-defendant took the stand in Nelson v. O’Neil, supra, its facts are not precisely like what happened in the instant case as contended by the majority. There, in a California trial (apparently in the State’s, case in chief), the prosecution offered the testimony of a police officer in a joint trial that the co-defendant Runnels had made an unsworn oral statement admitting the crimes and implicating O’Neil in the offense. It would appear that at this point the Bruton error was injected into the case, despite the fact that the court instructed the jury the statement could only be considered against Runnels and not against O’Neil. However, later Runnels took the stand in his defense and on direct examination denied making the statement and contended the substance of the statement imputed to him was false. He was vigorously cross-examined by the prosecutor, but stuck to his version in every particular. He was not cross-examined by O’Neil, although O’Neil was free to do so. Later, O’Neil took the stand and gave an identical version of the events of the night in question.

Without discussing the fact that the introduction of Runnels’ confession in the State’s case in chief would have been a Bruton error had not Runnels subsequently testified, the Supreme Court concluded under all the circumstances there was no violation of the Constitution. The court concluded that where a co-defendant takes the stand in his own defense and denies making an extrajudicial confession implicating the defendant and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights under the Sixth and Fourteenth Amendments.

While the same principle is here involved, the facts in the instant case are different and present a stronger case for the lack of a Bruton error. In the instant case the confession of the co-defendant was not offered or used in the State’s case in chief, but only after Jackson had testified. Jackson did not deny making the statement, but claimed. certain statements therein have been inserted by the officer taking the confession. The confession, which did implicate the appellant, was not introduced into evidence. Portions of it were used only in an attempt to impeach Jackson and the questions and answers given in the impeachment attempt did not implicate the appellant. Jackson was cross-examined by the appellant and gave favorable testimony to him. The court gave a limiting instruction as to the impeachment testimony.

For the reasons stated, I concur.

      . It is observed that in Griffin v. State, 486 S.W.2d 948 (Tex.Cr.App.1972), it was held that there was no Bruton error where all references to the defendant in the co-defendant’s confession were deleted before such confession was introduced into evidence.


author: BROWN, Commissioner.

text:
    Roy Wayne BEEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 51061.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.

      Don R. Malone, Vernon, Samuel D. McDaniel, Austin, for appellant.
    Bill Neal, Dist. Atty., Vernon, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of delivery of a controlled substance, to-wit: amphetamine. The trial court assessed punishment at five years in the Texas Department of Corrections.

The appellant contends that the trial court erred in denying the appellant’s plea of former jeopardy based on the improper discharge of the jury during the appellant’s second trial.

The record reflects that the appellant’s first trial resulted in a mistrial during the jury selection. The appellant was then brought to trial on April 23,1974. The case was submitted to the jury at about 2:30 p. m. on April 25,1974, and a mistrial declared over objections of both parties at 4:30 p. m. on the same day. The trial judge declared a mistrial based on the failure of the jury to reach an agreement on the question of guilt or innocence. On May 14, 1974, the appellant was called to trial for the third time, after his plea of former jeopardy was overruled. The jury found the appellant guilty of the offense charged on May 16,1974, and this appeal followed.

The record reflects that the initial vote of the jury at the second trial was six to six. The jury then apparently sent a note to the trial judge indicating that they wanted further instructions. The trial court instructed the jury to continue its deliberation. The next vote was eight to four although there is some discrepancy as to the time this vote was taken. The jury then deadlocked ten to two and so informed the trial judge. The trial judge questioned only the foreman about the jury’s deliberations and declared a mistrial over the objections of both the state and the appellant.

Article 36.31, V.A.C.C.P., provides:

“After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree.” (Emphasis added)

The rule is well settled that the exercise of discretion in declaring a mistrial is determined by the amount of time the jury deliberates considered in light of the nature of the case and the evidence. Green v. State, 167 Tex.Cr.R. 330, 320 S.W.2d 139 (1958); Villarreal v. State, 172 Tex.Cr.R. 213, 355 S.W.2d 516, cert. denied 371 U.S. 867, 83 S.Ct. 127, 9 L.Ed.2d 103 (1962); Lindsey v. State, 393 S.W.2d 906 (Tex.Cr.App.1965); O’Brien v. State, 455 S.W.2d 283 (Tex.Cr.App.1970).

The record before us indicates that the jury was out for only two hours, from 2:30 p. m. until 4:30 p. m. There was testimony at the hearing on appellant’s plea of former jeopardy that the jury actually deliberated less than an hour and a half because of various breaks that were taken. It should be noted that the initial vote was, as indicated above, six to six. Then after further deliberation eight to four. After still further deliberation it was ten 'to two. Although the State argues that this was a simple case with only two witnesses for the State, the record indicates that it took from April 23 to April 25 to select the jury and present the case.

In view of the record we must conclude that the trial court did not keep the jury together for such a period of time as to render it altogether improbable that it could agree on a verdict. The trial judge abused his discretion in declaring a mistrial and should have sustained the appellant’s plea of former jeopardy. See and compare, Satterwhite v. State, 505 S.W.2d 870 (Tex.Cr.App.1974); Boone v. State, 506 S.W.2d 227 (Tex.Cr.App.1974); and Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974) with the facts of the instant case.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    Gregorio Garcia GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 51186.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.
    Arthur L. Lapham, Victoria, for appellant.
    Robert J. Seerden, Dist. Atty., and Knute L. Dietze, Asst. Dist. Atty., Victoria, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court, appellant was convicted of driving while license suspended. Punishment was assessed at a fine of one hundred dollars and seventy-two hours in jail.

Among other contentions, appellant argues that there is no evidence that he is the Gregorio Gonzales, Jr. whose driver’s license was shown to have been suspended.

The record reflects that on September 27, 1974, in Victoria, Officer Leon Perkins of the Victoria Police Department stopped appellant while he was driving an automobile in order to check his driver’s license. Appellant handed him a license made out to Gregorio Gonzales which had expired. Perkins testified: “I run a records’ check on the driver’s license in Austin by teletype and our dispatcher, to check if the driver’s license were indeed expired or what the disposition of the driver’s license was.”

No further testimony was given concerning this expired driver’s license.

The State next placed in evidence as its Exhibit 1 a certificate from the License Issuance and Driver Records Division of the Texas Department of Public Safety dated February 27, 1975. This certificate reflected that the “Texas driving privilege” of one Gregorio Gonzales, Jr. of Route 5, Box 415, Victoria, Texas, was at the time of its issuance and at the time of this alleged offense suspended because of his failure to post the required financial responsibility as required by Art. 6701h, Sec. 17, V.A.T.Civ. Stats.

Appellant did not testify and offered no evidence.

At the close of the trial appellant moved for judgment of acquittal since there was no evidence that he was the same person whose license had been suspended. This motion was overruled, and the court found him guilty of driving while his license was suspended as charged in the information.

The information on which appellant was convicted charged that on September 27, 1974, in Victoria County, Gregorio Garcia Gonzales did

“ . . drive and operate an automobile upon the public highway there situate, while the Texas operator’s license of the said Gregorio Garcia Gonzales was then and there suspended under Article 6701h, Sec. 5(b) of Vernon’s Annotated Civil Statutes.”

While the evidence may have been sufficient to show that appellant was driving with an expired driver’s license, there was no evidence to identify him as the “Gregorio Gonzales, Jr.” named in the certificate whose “Texas driving privilege” was under suspension. See Elizalde v. State, Tex.Cr.App., 507 S.W.2d 749, 752.

The burden was upon the State to prove that this appellant was operating an automobile while his, appellant’s driving license was suspended. The State made no attempt to offer any such proof.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: QUENTIN KEITH, Commissioner.

text:
    William WAYTHE, Appellant, v. The STATE of Texas, Appellee.
    No. 51305.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.
    Rehearing Denied March 17, 1976.

      Terrence F. Srsen, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., El Paso, William J. Ellis, Asst. Dist. Atty., Fabens, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

QUENTIN KEITH, Commissioner.

Appellant was tried upon a single indictment containing four substantive counts of forgery as defined in V.T.C.A., Penal Code, Sec. 32.21(a)(1)(B), (1974); the punishment was fixed at life imprisonment. We have determined that this is a case of first impression for this Court on a multicount indictment under the criminal episode theory set forth in V.T.C.A., Penal Code, Sec. 3.02(a).

Appellant was indicted in an eight count indictment for four separate forgery offenses. The first, third, fifth and seventh counts alleged the commission of the four separate forgery offenses. The second, fourth, sixth and eighth counts alleged the same offenses, but each additionally contained a second paragraph alleging that appellant had two prior felony convictions. The same two prior felonies were alleged in each of these four paragraphs.

Appellant filed a timely motion to quash which was overruled. The motion to quash requested separate indictments issue on each count because the proof on each count varied, making a fair trial impossible, and because Article 21.24, V.A.C.C.P., was not applicable. As amended, effective January 1, 1974, Article 21.24 provides that a single indictment may charge two or more offenses, each in a separate count, if the offenses arise out of the same “criminal episode”. Criminal episode is defined in Chapter 3, V.T.C.A., Penal Code, as “the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property).”

We find the repeated commission of forgery as alleged in the substantive counts permitted the State to charge all four offenses in a single indictment.

However, appellant’s other ground for quashal is a motion for severance under V.T.C.A., Penal Code, Sec. 3.04(a). He asserted this right in a timely manner and in a form which apprised the trial court of his request. The trial court erred in denying appellant the right to sever the several offenses under Sec. 3.04(a).

Counts first, third, fifth and seventh, alleging the four separate forgeries were properly joined under the provisions of V.T. C.A., Penal Code, Sec. 3.01, reading:

“In this chapter, ‘criminal episode* means the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property).”

See also, V.A.C.C.P., Sec. 21.24, as amended, effective January 1, 1974.

This statutory joinder in separate counts of separate offenses is subject to the rights granted to an accused by the provisions of V.T.C.A., Penal Code, Sec. 3.04(a). This statute is a model of simplicity, reading:

“Whenever two or more offenses have been consolidated or joined for trial under Sec. 3.02 of this code, the defendant shall have a right to a severance of the offenses.”

The language of Sec. 3.04(a) is remarkably similar to that used in the ABA, Standards Relating to Joinder and Severance (Approved Draft, 1968), Sec. 2.2, reading:

“(a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.”

Presumptively, the legislature knew of the practice prevailing in the federal system as well as in several other states which differs materially from that chosen by the law-making body. See, e. g., Federal Rules of Criminal Procedure 8(a) and 14. Instead of adopting the liberal joinder of offenses with a severance in the discretion of the court upon a showing of prejudice, the Texas legislature adopted the rule requiring a mandatory severance.

The reasons for the adoption of ABA section just quoted above are articulated in the -Commentary immediately following § 2.2, and need not be repeated here. Plainly, the section now under consideration was adopted by our legislature with the intent to follow the ABA standards then presumptively known to it. The legislature, just as did the ABA, used the word “shall” in giving the accused the right to a severance. We have no ambiguity; instead, we have a command by the law-making body which we must enforce.

In Brinkley v. State, 167 Tex.Cr.R. 472, 320 S.W.2d 855, 856 (1958), this Court wrote:

“ ‘Must* and ‘shall’ are synonymous and are usually mandatory when used in statutes.”

We hold, therefore, that Sec. 3.04(a) is mandatory and that the trial court erred in failing to grant the appellant’s motion for severance.

Because of the possibility of another trial, we deem it appropriate to express our views upon two other facets of the law which may be raised upon such trial.

Appellant’s complaint of the admission of evidence of extraneous offenses; i. e., proof of the details of the other offenses set forth in the several counts, is without merit. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

Under our holding in Carvajal v. State, 529 S.W.2d 517, 521 (Tex.Cr.App.1975), the same two prior convictions may not be used to enhance the punishment more than once.

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

Opinion approved by the Court.

      . Professor Charles Alan Wright in 1 Federal Practice and Procedure, § 143, p. 318, fn. 47 (1969), speaking to the question says: “The ABA Project has proposed an ingenious solution. It would allow joinder of ‘similar character’ offenses at the pleading stage but give defendant a severance, on application, as a matter of right.” (emphasis supplied)


author: DALLY, Commissioner.

text:
    Tony P. TENIENTE, Appellant, v. The STATE of Texas, Appellee.
    No. 50727.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    Peter Torres, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., Keith Burris, Don A. Clowe and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of burglary; the punishment is imprisonment for 5 years.

In the appellant’s sole ground of error he asserts there is no evidence or there is insufficient evidence to prove that when he entered the habitation he intended to commit the offense of theft. The evidence is uncontroverted that the appellant removed a window air conditioner from a habitation and entered the house through that window. When the police officer arrived at the house to investigate a complaint, he found that the air conditioner had been removed from the window and burglar bars over the window had been “kicked in.” After entering the house, the officer found that the drawers in one bedroom had been pulled out, a jewelry box had been overturned, and items were scattered throughout the room. He entered the living room and found the appellant seated on a couch. A screwdriver was found in the appellant’s pocket. The complainant testified that he had not given the appellant permission to enter the house. The complainant also testified that when he left for work the air conditioner was in the window, the burglar bars were in place, and the drawers in the bedroom were closed.

The appellant’s testimony that he had been given permission to enter the home was a controverted issue which the jury resolved adversely to him. We find the evidence sufficient to show that the appellant entered the habitation with the intent to commit theft.

The appellant included in his argument in his only ground of error the following:

“Further, our new code requires the element of culpability that the act be knowingly and intentionally done in order for an act to constitute an offense (Section 6.02, Texas Penal Code), this was not even alleged in the indictment for which further reason appellant says the conviction herein should be reversed . . . ”

The pertinent part of the indictment in this case alleges that:

“On or about the 3rd day of July, A.D., 1974, Tony P. Teniente did then and there, with intent to commit theft, enter a habitation without the effective consent of Carlos Reyna, the owner.”

V.T.C.A. Penal Code, Sec. 6.02, provides that 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. The conduct that is the gist of the offense of burglary in this case is the entry into the habitation with the requisite intent. The indictment alleges the culpable mental state with which the appellant entered the habitation; it alleges he entered the habitation “with the intent to commit theft.”

The judgment is affirmed.

Opinion approved by the Court.

      .V.T.C.A. Penal Code, Sec. 30.02(a)(1), provides:
      “(a) A person commits an offense if, without the effective consent of the owner, he:
      “(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft;”


author: MORRISON, Judge.

text:
    Lorenzo BERMUDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51147.
    Court of Criminal Appeals of Texas.
    March 10, 1976.
    Charles W. Cromwell, J. Douglas Tinker, on appeal only, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty., and J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is aggravated robbery; the punishment, 20 years.

Appellant’s first contention is the indictment is fundamentally defective because it does not comply with V.T.C.A., Penal Code, Sec. 6.01(a), which provides:

“(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.

Appellant’s position is that an act otherwise sufficient to constitute a crime will not be a crime unless the act is voluntarily engaged in and the element of voluntariness must always be pled. Appellant contends the new penal code specifically requires both “a voluntary act” and “culpability” be alleged in the indictment.

This Court has held that the requirement of a culpable mental state is mandatory in the absence of clear language to the contrary. See Braxton v. State, Tex.Cr.App., 528 S.W.2d 844; Ex parte Ross, Tex.Cr.App., 522 S.W.2d 214; Teniente v. State, Tex.Cr.App., 533 S.W.2d 805 (decided March 3, 1976). However, this result is mandated by the provisions of V.T.C.A., Penal Code, Sec. 6.02(b) as follows:

“(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.”

Since Sec. 6.01 does not contain a similar provision, voluntariness need not be pled unless it is an essential element of an offense. See American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Parnell v. State, Tex.Cr.App., 384 S.W.2d 350; Graham v. State, 139 Tex.Cr.R. 98, 139 S.W.2d 269; Bush v. State, 97 Tex.Cr.R. 219, 260 S.W. 574. “Element of offense” is defined in V.T.C.A., Penal Code, Sec. 1.07(a)(13) as the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. The forbidden conduct in the case at bar as prescribed by V.T.C.A., Penal Code, Secs. 29.02(a)(2) and 29.03(a)(2) does not contain a requirement of voluntariness. Voluntariness is separate and apart from the “required culpability” and from the “required result”. Absence of voluntariness cannot be construed as an exception to the offense since V.T.C.A., Penal Code, Sec. 2.02(a) provides that exceptions are so labeled.

We hold that the issue of “voluntariness” of the conduct is in the nature of a defense and need not be pled in the indictment. See V.T.C.A., Penal Code, Sec. 2.03(b). See also Harris v. State, 91 Tex.Cr.R. 446, 241 S.W. 175; Bradley v. State, 102 Tex.Cr.R. 41, 277 S.W. 147.

Appellant’s remaining ground of error asserts the witness Velasquez impermissibly made an in-court identification of appellant. Appellant did not request a preliminary hearing on the admissibility of the in-court identification. See Martinez v. State, Tex.Cr.App., 437 S.W.2d 842. Appellant did take the witness on voir dire prior to the in-court identification and made an objection to her testimony on the grounds that she had been shown pictures by the police.

The record shows that two men entered the house where witness Velasquez was employed and took items, including jewelry and a TV set. Velasquez testified that one of the two men slapped her and then she was locked in a closet. She only saw one of the two men. The testimony of a police officer shows that within a few days of the offense Velasquez selected a picture of the co-defendant from a photographic display. Approximately two months later she chose appellant’s photograph from a different photographic display and identified appellant in a line-up.

Photographic identification does not automatically taint an in-court identification. White v. State, Tex.Cr.App., 496 S.W.2d 642, and cases there cited. The lapse of time between the offense and the identification and the identification of another person are only two of the factors to be considered in determining the origin of an in-court identification. Thompson v. State, Tex.Cr.App., 480 S.W.2d 624.

Velasquez’ testimony at trial showed identification of appellant was based on adequate opportunity to view appellant at the time of the offense and the in-court identification was of independent origin. Jordan v. State, Tex.Cr.App., 495 S.W.2d 949; Gonzales v. State, Tex.Cr.App., 501 S.W.2d 644.

Finding no reversible error, the judgment is affirmed.

      . Omitting the formal parts, the indictment alleges appellant “did then and there unlawfully while in the course of committing theft and with intent to maintain control over a shotgun and a television set, personal property owned by Frank Hufsmith, intentionally and knowingly place Genevie Velasquez in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, namely a firearm.”

      . Appellant seems to base this assertion on the captions to V.T.C.A., Penal Code, Secs. 6.01 and 6.02, to-wit: “Requirement of Voluntary Act of Omission” and “Requirement of Culpability.” Although the captions are part of the original legislative act (Acts 1973, 63rd Legislature, Chapter 399, Section 1), they do not limit or expand the meaning of the statute. Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558.


author: ODOM, Judge.

text:
    James PETE, Appellant, v. The STATE of Texas, Appellee.
    No. 50979.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    Rehearing Denied March 24, 1976.

      Robert B. Wallis of Haynes & Fullen-weider, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough, Alvin M. Titus and Ned B. Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction under our former Penal Code for assault with intent to murder without malice. Punishment was assessed at three years.

The first three grounds of error are based on an alleged conflict of interest arising from retained trial counsel’s dual representation of appellant and his co-defendant.

In the first ground of error appellant contends that reversible error is presented by the failure of the trial court to inquire of appellant before the trial began whether he was aware of possible conflicts that might arise during the course of the trial from his attorney’s dual representation of both defendants. The second ground of error similarly contends that the trial court erred “by failing to halt the proceedings, during trial, when it became apparent that a conflict existed between the co-defendants, and advising appellant of his right to separate counsel.”

The third ground of error asserts that the conflict of interest was prejudicial to the appellant in that he was denied the full, effective, and undivided assistance of counsel.

The first two grounds of error, then, are predicated on assertions that the trial court failed to act when there was a duty to act, and the third asserts ineffective assistance of counsel.

The first two grounds of error we immediately overrule. We are not unmindful of the possibility of conflict of interest whenever one attorney undertakes to represent co-defendants. See Morales v. State, Tex.Cr.App., 466 S.W.2d 293, 304 (concurring opinion). We are of the view, however, that counsel has the primary responsibility for advising prospective clients of possible conflicts in their positions. See States v. State, Tex.Cr.App., 530 S.W.2d 309, at 313, and DR 5-105, Code of Professional Responsibility, quoted below.

At the outset of the trial it was retained counsel, not the trial court, who was under a duty to investigate and determine any possible conflict between his clients. The trial court could only have been aware of the general possibility of conflict of interest that exists whenever there are multiple defendants. This possibility, although always real, is not inevitable.

Furthermore, we are aware of no statutory or other authority in this jurisdiction that would require a trial judge, upon the mere appearance of conflict among the positions of multiple defendants who retained one attorney, to halt the proceedings and take the action urged by appellant.

The first two grounds of error are overruled.

We now turn to the claim of ineffective assistance of counsel. The record reflects that appellant and a co-defendant, who was acquitted, were tried jointly and represented by the same retained counsel. The complaining witness alleged that the co-defendant attacked her with a knife but did not succeed in inflicting any wound other than a small nick upon her neck. Appellant then arrived at the scene of the struggle, told his co-defendant to run, pulled his pistol, and shot the complaining witness. Both appellant and his co-defendant testified that before appellant shot the witness she pulled a derringer from her bosom and fired it once.

The record reflects that the complaining witness was an admitted prostitute or former prostitute. According to her testimony) appellant had been her manager or pimp. The co-defendant was also an admitted prostitute, and testified that appellant was a pimp but not her pimp. Appellant denied that he had ever been anyone’s pimp.

By far the most serious conflict asserted is the testimony of appellant’s co-defendant that appellant was a pimp, which he denied upon his own direct examination.

This is a collateral point that concededly raised the question of the credibility of each defendant. Appellant contends that separate counsel for each defendant would have enabled his own attorney vigorously to impeach the co-defendant. Such a conclusion is highly speculative. Trial counsel might well judge that such an attempt at impeachment might be much more damaging than the strategy in effect adopted by counsel in the instant case, which was to disparage the importance of this detail as collateral and not relevant to the offense of assault. Any attempt to impeach the co-defendant would likely have elicited specific, damaging, and prejudicial facts supportive of her statement that appellant was a pimp. The record reflects no prejudice from the failure of counsel to impeach the co-defendant. Cf. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975).

None of the other alleged conflicts of interest approached the possible gravity of the instance cited. We note that the defenses of the defendants were consistent although not the same. Their testimony as to the details of the alleged offense was essentially the same.

Equally important, there has been no showing that appellant was not fully apprised of the potential risks inherent in his retained counsel’s dual representation. There has been no showing, in short, that his attorney breached his legal duties to his client. Bee Ex parte Hill, Tex.Cr.App., 528 S.W.2d 259; Ex parte Raley, Tex.Cr.App., 528 S.W.2d 257. Such duties in this context are stated in our State Bar Rules Code of Professional Responsibility, Appendix to Y.A.C.S. Title 14, Art. 12, Sec. 8:

“DR 5-105. Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
“(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(0).
“(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(0).
“(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.”

There has been no showing that retained counsel did not fully comply with such duties. EC 5-15 provides further guidance as to the responsibilities of an attorney who is considering multiple representation. See also the American Bar Association Standards relating to the Defense Function, Approved Draft, 1971, Section 3.5.

We hold that this record fails to reflect any conflict of interest on the part of retained counsel that was prejudicial to appellant and that there is no showing that appellant was not advised of the risk of any conflict of interest that may have arisen. States v. State, supra. The third ground of error is overruled.

In the fourth ground of error appellant contends the trial court erred in failing to answer jury questions in writing and in failing to notify appellant of said questions, all in violation of Article 36.27, V.A.C.C.P.

The jury in such questions requested the testimony of three witnesses. The record does not reflect whether the trial court ever acted upon or answered the request.

“Where procedural requirements do not affirmatively appear in the record to have been violated, a presumption of regularity must prevail.” Green v. State, Tex.Cr.App., 510 S.W.2d 919, 921.

See also Smith v. State, Tex.Cr.App., 513 S.W.2d 823, 829.

Appellant contends that the failure to object and the silent record cannot be dis-positive of his ground of error because he would have had no opportunity to correct either deficiency if the trial court did not notify him of the jury’s written request when it was made.

That contention is also without merit. The jury’s written request was filed in the papers of the cause on the day it was made. Appellant later filed both a motion for new trial and an amended motion for new trial. Neither alleged the error now asserted. Nor does the record before us contain a formal bill of exception on the matter. The ground of error is overruled.

The judgment is affirmed.

      . Although a case might arise wherein a conflict of interest would be so egregious that the trial court would be justified in halting the proceedings to protect the defendant’s right to a fair trial, cf., e. g., Horowitz v. Henderson, 514 F.2d 740 (5th Cir. 1975); United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973); State v. Baker, 288 So.2d 52 (La.1973); People v. Caffray, 62 Mich.App. 486, 233 N.W.2d 625 (1975); People v. Sanders, 54 Mich.App. 541, 221 N.W.2d 243 (1974); People v. DeLeon, 77 Misc.2d 969, 354 N.Y.S.2d 785 (N.Y. Kings County Ct. 1974), the failure to act sua sponte would not be grounds for complaint on appeal. Rather, the denial of a fair trial warranting such action by the trial court would itself constitute the basis for relief, if warranted, on appeal. Although formal requirements such as the inquiry urged may serve beneficially to insure a fair trial and to eliminate the need for subsequent inquiry into the issue of whether in fact a dual representation abridged effective representation, the introduction of such formal requirements into the practice in this jurisdiction is an appropriate matter for legislative consideration. This Court lacks the general rule-making powers that the Legislature has given the Supreme Court. See Art. 1731a, V.A. C.S.
      Further, we should point out that there would have been nothing wrong with the trial court at the outset of this trial questioning defense counsel whether he had apprised the defendants of the inherent risks of dual representation and asking the defendants whether they understood the same. We are of the same view with regard to the same procedure at any point during the trial. We are loath, however, to recommend or require such a procedure. See Prince v. State, Tex.Cr.App., 500 S.W.2d 533; cf. The American Bar Association Standards for Criminal Justice relating to the Function of the Trial Judge, Approved Draft, 1972, Section 3.4(b).
      Finally, a different case would be presented if the trial court had involved itself in the perpetration of the alleged conflict. The trial court, for example, must be extremely cautious in appointing a single counsel for multiple defendants. To insist upon dual representation in the face of objection may work grievous harm to a defendant. See Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465, 86 L.Ed. 680, 699 (1942); Maynard v. Commonwealth, 507 S.W.2d 143 (Ky.1974).

      . Appellant claimed self-defense; his co-defendant merely denied that she attacked the complaining witness with a knife.


author: DALLY, Commissioner. ONION, Presiding Judge,

text:
    Charles Edwin BULLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 51025.
    Court of Criminal Appeals of Texas.
    March 3, 1976.

      Pat McDowell, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and James G. Walker, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of felony theft; the punishment, enhanced by proof of two prior felony convictions under the provisions of V.T. C.A. Penal Code, Sec. 12.42(d), is imprisonment for life.

In numerous grounds of error, the appellant contends that: (1) the evidence is insufficient to support the conviction; (2) extraneous offenses were erroneously admitted in evidence; (3) the court failed to instruct the jury on the law of circumstantial evidence; (4) he was not granted an examining trial; and (5) the evidence is insufficient to sustain a finding that the appellant had been convicted of the offense alleged for enhancement of punishment.

When viewed most favorably in support of the jury’s verdict, the evidence shows the following: James Thomas, the complaining witness, left his home at 2:30 p. m. on October 4, 1974; when he returned at 6:00 p. m. on the same day he discovered that his home had been broken into and that numerous items had been stolen. Included among the items stolen were a General Electric 21 inch black and white portable television set and a President component stereo system. Thomas stated that the television set was two or three months old and that he had paid $300 for it; he stated that the stereo system was six or seven months old and that he had paid in excess of $400 for it. Thomas further stated that any decrease in value of the television and stereo sets subsequent to his purchase of those items was negligible.

Officer G. D. Womack of the Dallas Police Department testified that on October 10, 1974, he was working undercover, keeping under surveillance a Jiffy Food Store, the manager of which was suspected of trafficking in stolen goods. Officer Wom-ack stated that he and his confidential informer were parked directly in front of the Jiffy Food Store when the appellant and another, nicknamed “Foots,” drove up and went inside the food store. After the appellant and “Foots” spoke to Jose Yvarra, the man inside the food store, they returned to their car, retrieved a television set and a stereo system and carried them inside the store. Yvarra handed some money to the appellant and “Foots” and the two men left. Officer Womack and his confidential informer then went inside the store and arranged to sell some goods to Yvarra; when they brought the goods inside, the officer and his informer were directed to place them behind the same meat counter in back of which the appellant and “Foots” had placed the television and stereo sets. Officer Womack stated that he saw a General Electric portable television set and a President stereo system behind the counter; he further stated that there were no other television or stereo sets behind the counter.

Officer Edward Hardy of the Dallas Police Department was working with Officer Womack in the surveillance being maintained on the Jiffy Food Store. He was in a car parked less than one hundred yards away from the store, watching the store and listening to a radio which was picking up conversations broadcast by a hidden microphone worn by Officer Womack during his dealings with Yvarra. Officer Hardy saw the appellant and “Foots” take a stereo and a television set into the food store, then return to their car and leave. The officer continued his surveillance of the store until it closed at midnight; after closing the store Yvarra placed a number of items into his car; Officer Hardy then followed him home. After Yvarra moved all save two of the items in his car into his house, he was arrested and his house searched. Two of the items recovered in the search were a President component stereo system and a General Electric black and white portable television set; Officer Hardy stated that the television and stereo sets were the only ones of their respective tradename at Yvar-ra’s house.

The various items seized in the search of Yvarra’s house were loaded into a police property truck for transportation to the police station. En route to the police station the truck was involved in a collision; most of the property in the truck, including the television and stereo sets, was badly damaged. Nevertheless, complaining witness Thomas was able to identify the television set and stereo system as the ones taken from his house on October 4,1974. Thomas pointed out that there was some white paint on one of the stereo’s speakers that he had accidentally spilled on it when he was painting his room. Thomas further stated that he at no time gave the appellant permission to have possession of or exercise control over his television set or stereo system. Finally, Officer Hardy testified that he returned to and searched the Jiffy Food Store; he stated that he did not find either a General Electric black and white portable television set or a President component stereo system at that location.

The appellant contends that the evidence is not sufficient to connect him to the offense alleged. The rule where the State relies alone on possession of recently stolen property is stated in 5 Branch’s Ann.P.C.2d, Sec. 2650.

“To warrant an inference or presumption of guilt from the circumstances alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.”

See Jesko v. State, 458 S.W.2d 927 (Tex.Cr.App., 1970); Smith v. State, 518 S.W.2d 823 (Tex.Cr.App., 1975). See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) for a discussion of the presumption arising from the possession of recently stolen property in relation to the presumption of innocence and other constitutional rights.

The evidence here is sufficient. It shows that the appellant and “Foots” had the stolen property in their personal possession six days after it was stolen; their possession was unexplained; and they exercised control of and disposed of the property showing a conscious assertion of right to the property.

In answer to other grounds of error, the evidence is sufficient to show that both the television set and stereo system were in the possession of the appellant and “Foots” and that they were the same items alleged to have been stolen from the owner.

It is also urged that the evidence is insufficient to show the value of the property stolen. The appellant for the first time on appeal challenges the evidence of value of the stolen items. Each of the items was shown to have a value of over $200. See Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App., 1974). The failure to prove the market value of these stolen items was not fatal when there was no evidence that the value of the property was less than $200 and there was some evidence admitted without objection to show the property had a value of over $200. If the manner of proving value did not meet with the approval of the appellant, it was incumbent upon him to voice his objection at the time of the introduction of the testimony. Turner v. State, 486 S.W.2d 797 (Tex.Cr.App., 1972).

We find the evidence of each and every element of felony theft sufficient to support the jury’s verdict. These grounds of error are overruled.

The appellant next complains that the trial court erred in admitting evidence of alleged extraneous offenses. This complaint concerns Officer Womack’s testimony that he sold property to Yvarra at the store and Officer Hardy’s testimony that he recovered stolen property from Yvarra’s house. This evidence was not offered to show, and it did not show, that the appellant had committed other offenses. It was a part of the circumstantial evidence which was relevant to the proof of the State’s case against the appellant. This evidence was so entwined with, and closely related to, the other admissible evidence that it was properly admitted. We also note that most of this evidence about which complaint is now made was admitted without objection. This ground of error is overruled.

The appellant complains that the trial court erred in failing to instruct the jury on the law of circumstantial evidence. This was a circumstantial evidence case, and if a timely objection had been made or if a timely specially requested charge had been offered, a refusal to give such a charge would have been error. However, the error was not preserved for review because no such specially requested charge was offered and there was no objection that the court’s charge did not contain an instruction on circumstantial evidence. See Articles 36.14 and 36.15, Y.A.C.C.P. Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973); Golden v. State, 475 S.W.2d 273 (Tex.Cr.App.1972). This ground of error is overruled.

Appellant asserts the trial court erred in failing to grant him an examining trial. Appellant’s contention is without merit; the return of an indictment terminates any right to an examining trial. Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Harris v. State, 457 S.W.2d 903 (1970), reversed on other grounds, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971); McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974). This ground of error is overruled.

Appellant also asserts that the evidence is insufficient to show that he had previously been convicted of two felonies. At the punishment stage of the trial the State called Deputy Sheriff John Slovak, a fingerprint expert from the Dallas County Sheriff’s Department. Deputy Slovak testified that he had taken the appellant’s fingerprints on the afternoon the trial began. He identified State’s Exhibits Nos. 2 and 3 as being photostatic copies of Dallas County “jail card business record[s]”, containing official records and fingerprints of one Charles Edwin Bullard made upon conviction in Dallas County in Cause Nos. C-70-6579-MN (burglary) and D-7519-JI (attempting to pass a forged instrument knowing the same to have been forged), respectively. Both State’s Exhibits Nos. 2 and 3 which were admitted in evidence without objection were properly admitted. See Arts. 3731a and 3737e, V.A.C.S.; Jones v. State, 500 S.W.2d 661 (Tex.Cr.App.1973).

Deputy Slovak compared the fingerprints on State’s Exhibit No. 2 with those he had taken of the appellant earlier that afternoon, and testified that they were made by the same person, the appellant. The State’s evidence was sufficient to identify appellant as the defendant who was convicted in Cause No. C-70-6579-MN (burglary) in the 195th Judicial District Court in Dallas County. However, Deputy Slovak was not asked to compare the fingerprints he had taken of the appellant with those on State’s Exhibit No. 3; at no time did Deputy Slovak testify that the fingerprints he had taken of the appellant were made by the same person whose fingerprints appeared on State’s Exhibit No. 3. The State’s evidence is therefore insufficient to identify the appellant as the defendant who was convicted in Cause No. D-7519-JI in Criminal District Court No. 2 in Dallas County. See Elizalde v. State, 507 S.W.2d 749 (Tex.Cr.App.1974). The identity of names was not sufficient. Elizalde v. State, supra; Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971). Hence, the court erred in enhancing the punishment as the record reflects he did under the provisions of V.T. C.A. Penal Code, Sec. 12.42(d).

The error herein relates to punishment only; the court assessed the punishment. Inasmuch as the State’s proof of prior convictions is insufficient, the proper remedy is to set aside the life sentence and remand the case to the trial court for a new hearing or trial on the issue of punishment to be assessed by the court, at which time the State may again attempt to prove the prior convictions for the purpose of enhancing punishment. See Article 44.25, V.A.C. C.P. Insofar as it conflicts with the manner of the disposition herein, the case of Elizalde v. State, supra, is overruled.

It is so ordered.

Opinion approved by the Court.

ONION, Presiding Judge,

(concurring in part and dissenting in part).

I agree that the case must be remanded to the trial court for a new hearing on punishment, but cannot agree that Elizalde v. State, 507 S.W.2d 749 (Tex.Cr.App.1974), only recently • decided without dissent, should be overruled by the “current” majority.


text:
    Louis LEDET, Appellant, v. The STATE of Texas, Appellee.
    No. 51172.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    Peter D. Williamson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Andy M. Tobi-as, Asst. Dist. Attys., Houston, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of oral sodomy under the former Penal Code. The jury assessed punishment at nine years in the Texas Department of Corrections.

Initially the appellant challenges the sufficiency of the evidence to sustain the conviction. The testimony will, therefore, be set out in detail.

The complaining witness, Frederick Brown, was six years old at the time of the offense and eight years old at the time he testified in this case. Brown was examined by the trial court and held to be a qualified witness outside the presence of the jury. Art. 38.06, V.A.C.C.P.; 1 McCormick and Ray, Texas Evidence, Section 272, 2nd Ed., 1956; McCormick, Law of Evidence, Sec. 62, 2nd Ed., 1972. On direct examination Brown testified that he lived at 1639 Allen Parkway in Houston with his mother and older brother. He stated that people who don’t tell the truth get a whipping and that he would tell the truth.

The State then asked the witness the following:

“Q. Do you know this man sitting over here in the white T-shirt?
“A. No.
“Q. Have you ever saw that man before?
“A. No.
“Q. Did you ever see him close to 1629 Allen Parkway where you live?
Look at him real close. Have you ever seen him close to your house?
“A. (Shaking head.)”

Brown then testified that he knew “DeDe” and that she lived with her mother and father. He then stated that “DeDe’s” father was named Freeman. The State then asked:

“Q. Do you know Louis Ledet, was he living there with De De and her mother?
“A. (Shaking head.)
“Q. Was this man living in an apartment close to you on December 23, 1972?
“A. No.
“Q. Do you ever remember going upstairs to an apartment with this man?
“A. No.
“Q. You have never seen him before back on December 23, 1972?
“A. (Answer unaudible.)”

Brown then testified that he went to an apartment near his home on the day of the offense to watch T.V. He stated that the T.Y. was brought upstairs to the bedroom by a man he called Louis. Brown then stated that the man called Louis ordered him over to the bed where he was lying down and made Brown “suck his thing.” Although the testimony is not clear, Louis apparently had a knife held behind his back and another knife in his pocket. Brown then stated that he heard someone he later said was his mother calling and attempting to get into the apartment. Brown testified that “he” went downstairs and opened the door to his mother. After the apartment door was opened, Brown stated that he ran outside to his mother and told her what had happened.

The record then reflects the following:

“MR. TOBAIS: May the defendant stand for identification purposes, your honor?
“THE COURT: Yes, sir.
(Whereupon the defendant stood up.)
“Q. (MR. TOBAIS): Look at this man.
Is this the man you have been talking about?
“A. No.
“Q. Are you sure?”
“A. (Shaking head.)
“Q. Look at him real close. Are you afraid of him?
“A. No.”

On cross-examination, Brown testified that the same man who committed this offense had compelled him to perform a similar act once before. He stated that he had told his mother about this prior act and that he had seen the man again. The record then reflects the following:

“Q. If you saw the man again would you know him?
“A. Yes.
“Q. Are you sure?
“A. Yeap.
“Q. And you have never seen this man before, have you?
“A. No.
“Q. Did that man have on any shoes?
“A. No.
“Q. Did he have socks on?
“A. He didn’t have any socks on.
“Q. Do you remember what kind of pants he had on, did he. have blue jeans on?
“A. I don’t know the kind.
“Q. What color were they, do you know?
“A. No.
“Q. How many times, if you counted them all up how many times did this man make you suck his thing?
“A. Once.
“Q. Just once. Are you sure?
“A. (Shaking head.)
“Q. You are not scared down here, are you?
“A. (Shaking head.)
“Q. Have you ever seen me before other than today, have you ever seen me before?
“A. Yeap.”

Brown further testified on cross-examination that after returning home to his mother on the date of the offense he received a whipping. Brown was then asked to describe the man who committed the offense. He stated that the man had a mustache and beard. That his hair was black, that he was bigger than the appellant and skinnier. Brown then testified that the man who committed the offense was a white male with blue tattoos on his arms. The record reflects that the appellant is a very dark black male.

On re-cross examination Brown testified that there was a second man in the apartment on the night of the offense. Brown stated that this second man had an afro haircut and that he was black. Apparently from the testimony this second man left before the offense was committed.

On re-direct examination, the State asked Brown to identify a picture of the appellant taken at the time of his arrest. The record then reflects the following:

“Q. (Mr. Tobáis): Fredrick, let me show you state’s exhibit number one and ask you if you recognize him or not, have you seen that man before, is that the Louis you have been telling us about?
“A. No.
“Q. You can not identify state’s exhibit number one as the man in the picture, have you seen this man before?
“A. No.
“Q. Never seen him before.
“Pass the witness.”

The victim’s mother, Clara Brown, testified that on December 23, 1972, she had gone to the airport to pick up her sister and had left Frederick at home with her daughter. She identified appellant as the man who was living next door to her on the date of the offense.

Clara Brown then testified that upon returning home she went to the appellant’s apartment and attempted to enter to get her son. She stated that the appellant opened the apartment door. She was then asked to describe her son’s appearance as he came out of the apartment. She stated, “Well, he just came out, but I was so mad and upset ’till I just told him to go on to the house and I was asking him what he was doing with my son over here in his house and why he would not let him out.”

Over objection, Clara Brown testified that her son told her about the commission of the offense. She stated that she believed the appellant was the man that her son described committing the offense.

In Allen v. State, 479 S.W.2d 278 (Tex.Cr.App.1972), this Court held that the testimony of the complaining witness alone was sufficient to support a conviction for sodomy. The fact that a ten year old witness in a sodomy prosecution may have given some contradictory testimony did not render the evidence insufficient in Dawson v. State, 472 S.W.2d 775 (Tex.Cr.App.1971); however, the identity of the accused and the details of the offense were in no material way contradicted.

In Hawkins v. State, 505 S.W.2d 578 (Tex.Cr.App.1974), the victim was, as in the instant case, six years old at the time of the offense and eight years old at the time of the trial. The victim clearly identified the accused and described the offense. The accused testified and denied the offense. This Court held that the testimony of the six year old victim was sufficient to support the conviction.

The appellant in McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974), challenged the sufficiency of the evidence to show that the complaining witness identified him as the perpetrator of the offense. In contrast to the instant cause, the witness identified the accused in open court as the man she called “Buddy.”

In McCullen v. State, 372 S.W.2d 693 (Tex.Cr.App.1963), the accused was charged with the offense of “enticing a minor to a house for the purpose of proposing to such child the performance of an act of sodomy.” This Court reversed the conviction because the State failed to prove that the offense was committed by the accused. This Court stated:

“The State did develop testimony, from the prosecutrix, that the Eastman yard was right next door to where the man lived. The burden is on the State in any criminal prosecution to prove beyond a reasonable doubt that the accused committed the criminal act charged. De La Paz v. State, 161 Tex.Cr.R. 514, 279 S.W.2d 101. As stated by this Court in Mayo v. State, 156 Tex.Cr.R. 26, 238 S.W.2d 777: ‘The state was under the burden of showing that this appellant was the man who committed the offense charged. Unless and until the state satisfies that burden, the guilt of this appellant has not beén shown. Gandy v. State, 139 Tex.Cr.R. 140, 139 S.W.2d 275, also supports the holding that the accused must be identified as the person who committed the offense.”

As the testimony set out above indicates, this is a case where the complaining witness not only failed to identify the appellant, but repeatedly testified that the appellant was not the man who committed the offense. On the direct evidence of the complaining witness, the conviction cannot be sustained.

The State argues in its brief that this is a circumstantial evidence case and that circumstantially the guilt of the appellant is proven. °

The test for determining the sufficiency of the evidence in a circumstantial evidence case was recently set out in Easley v. State, 529 S.W.2d 522 (Tex.Cr.App.1975); citing Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973), as follows:

“ ‘This Court has long adhered to the rule that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except the guilt of the accused, and proof amounting to only a strong suspicion or mere probability is insufficient. Flores v. State, 489 S.W.2d 901, 902 (Tex.Cr.App.1973), and the cases therein cited.’ ”

There is no more than a strong suspicion in the instant case. The victim stated the appellant was not the man, although circumstances may point to him as the guilty party. Further, there is another reasonable hypothesis: That the offense was committed by a white man with blue tattoos on his arms who was in the apartment at the time of the offense.

It should be noted that after a careful review of the record we are forced to observe that the briefs of both the appellant and the State have described testimony which our own reading of the record does not support.

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

Opinion approved by the Court.

      . We note that a verbal answer should be elicited from the witness.


text:
    Ex parte Monroe Henry PRESTON.
    No. 51451.
    Court of Criminal Appeals of Texas.
    March 3, 1976.

      Peter Gilgeather, Ft. Worth, for appellant.
    Tim Curry, Dist. Atty., Howard M. Fender, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding in Criminal District Court No. 1, Tarrant County, on July 8, 1975, denying the relief requested.

Appellant contends that the court erred in not ordering the release of appellant for lack of probable cause to believe an offense had been committed.

It has been duly brought to our attention that the appellant is now under indictment for murder in this case. The return of an indictment establishes probable cause as a matter of law. Therefore, the question of probable cause to hold appellant has been rendered moot. Ex parte Sellers, Tex.Cr.App., 516 S.W.2d 665; Ex parte White, Tex.Cr.App., 486 S.W.2d 301.

The appeal is dismissed.

Opinion approved by the Court.

      . We call attention to Ex parte Johnston, 533 S.W.2d 349 (Tex.Cr.App.1976), holding that the return of an indictment does not render moot an appeal from a habeas corpus proceeding to set or reduce the amount of bail.