author: HENRY, Justice.

text:
    James Nathaniel MATHIS, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Dec. 3, 1979.

      Wm. Walker Gwinn, Memphis, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., David C. Wade, Don A. Dino, Asst. Dist. Attys. Gen., Memphis, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari in this criminal action, wherein petitioner was convicted of murder in the second degree and sentenced to thirty-two years confinement in the state penitentiary, in order to determine the sufficiency of the evidence. We find it to be insufficient and reverse and dismiss the case.

Petitioner was jointly indicted and tried with Bobby B. Kimmons, also known as “Skinny Pimp,” who received the same sentence. The homicide was actually committed by Kimmons. We denied certiorari in his case because our review of the evidence resulted in our considering it to be sufficient. The conviction of petitioner must rest upon the sufficiency of the evidence to convict him as an aider and abettor.

I.

Factual Background

The State’s case against petitioner rests solely upon the insistence that he handed Kimmons the gun used to commit the homicide. We review the evidence and trial proceedings.

a. General Factual Background

Late at night on November 13, 1976, Kimmons, accompanied by petitioner, Terry (Doc) Williams and James (Butch) Gregory, went to the apartment of the victim, Ronald (Shine) Farmer, apparently for the purpose of borrowing his automobile. With Farmer were James Anthony and Fred Jef-fries. Only Kimmons and petitioner entered the apartment. Kimmons got into an argument with Farmer stemming from damages done to his automobile on an occasion when he previously used it. Petitioner left, went to his house and later came back. Upon his return the argument had moved outside. It concluded when Kimmons shot and killed Farmer.

b. State’s Proof

The State led off with James Anthony, who was in Farmer’s apartment when petitioner and Kimmons arrived. Anthony was a senior at Booker T. Washington High School. According to him, Kimmons entered alone and talked with Farmer about borrowing his car. Farmer demurred because of damage done when he had borrowed it before. During this discussion, petitioner entered, spoke and went back out — after staying only a minute or two. After he left, Farmer and Kimmons went out into the hallway and continued the argument in rather heated tones and terms. Anthony and Jeffries went out into the hall, brought Farmer back inside and threw him on the bed;

Subsequently, Farmer, Anthony and Jef-fries went out to the car. As they did they came upon Kimmons who started arguing again. Anthony’s statement of the critical events follows:

As Shine was getting in the car, me and Fred had already got in the car, and Shine got back out of the car, and went around the car, and they was start (sic) arguing. And, I saw Bobby [Kimmons] bend over. I don’t know exactly what he was bending over for, but they were arguing, and he came around. When he came around, I saw the gun in his hand. And, I tried to tell Mr. Farmer that he had a gun so he would come on and get in the car, so we could go where he was going. And, so they kept on arguing, and Shine was in a swing on Mr. Bobby, and Bobby pushed him back off of him, and shot him. (Emphasis supplied).

He stated positively that he did not see petitioner; that he didn’t know where he was; and that he never saw petitioner after he left the apartment.

The State’s next witness was Fred Lee Jeffries. He was in Farmer’s apartment when Kimmons arrived. He corroborates Anthony on the beginning conversation, the subsequent entry of petitioner, his departure, and generally on the details of the argument in the apartment and hallway and their taking Farmer back into the apartment to “cool him down.”

He says that after they left the apartment and as they were going to the car, Kimmons appeared in the hallway and porch and started provoking Farmer. His version of the shooting coincides with Anthony’s in the essential details. The following extracts from his testimony on the State’s direct examination are significant:

Q. Could you tell whether Bobby Kim-mons, Skinny Pimp, had a weapon?
A. Well, before he got up on him, I seen him bend down, and brought something out.
******
Q. Did you see anyone else around that time?
A. No.
******
Q. When you saw that [the shooting] was the defendant, James Mathis, standing close by him.
A. No.

At this point the State requested a jury-out hearing. In the absence of the jury, the witness was examined about an alleged statement made by him to the examining Assistant District Attorney General to the effect that petitioner was standing near Skinny Pimp when the shot was fired. It was the witness’ insistence that he was referring to the hallway and not the outdoor area at the time of the killing. He maintained that he had been asked by the Assistant District Attorney General whether petitioner was “anywhere around when they were arguing.” His response to that inquiry had been in the affirmative.

The witness reiterated that he had not seen petitioner at the time of the shooting but, by affirmative response, said he “saw him just before the shooting.” He gave certain distance estimates between petitioner and Mathis but these were clearly during the argument that preceded the shooting.

The jury was returned to the courtroom. Jeffries again stated that he had been an eyewitness to the shooting but did not see petitioner “out there,” and that he “was not outside.” The jury was again excused. The Trial Judge immediately took over the questioning of the witness and examined and cross-examined him rigidly and closely. The witness reiterated that petitioner was not present at the time of the shooting.

It is apparent from the Trial Judge’s questions that he construed the witness’ testimony during the jury-out hearing as outlining the distance separating petitioner from Kimmons as relating to the time of the actual shooting. It is equally apparent that the witness had, in fact, related it to the time of the prior argument.

After the Trial Judge had admonished the witness that “if you tell a lie on this witness chair, under oath, about this case, you can go to the penitentiary for perjury,” Jeffries again stated that petitioner was not outside and that he last saw him “when they was arguing in the hall.” The court graciously acknowledged that perhaps there had been a misunderstanding.

Be these things as they may, it was his clear and unrefuted testimony that the last time he saw petitioner was during the argument in the hall and he saw him at no other time that night. There was no proof to the contrary and we cannot presume the falsity of his statements, absent competent contradictory proof.

On cross-examination by Kimmons’ counsel the witness stated that Kimmons took the pistol out of his sock. Before the actual shooting, he warned Parmer that Kimmons had a gun.

The next and last eyewitness called by the State was Tony Williams, who had accompanied petitioner and Kimmons to the Farmer apartment. Upon arrival he remained in the car while Kimmons and petitioner went inside. Subsequently, petitioner came out alone, got in the automobile, drove to his house, got out, went inside and then came out. He had nothing in his hands. They drove back to Farmer’s apartment. Petitioner got out but he “didn’t pay no more attention to him.” The witness remained in the car.

While seated in the car, he saw Farmer and Kimmons and heard them arguing. He saw Farmer advance on Kimmons and heard the shot. At the time Mathis was standing on the other side of a tree but not near Kimmons. He did not see Mathis hand Kimmons anything. As a matter of fact, he did not see the.gun.

The State’s last witness was Sergeant Kenneth East of the homicide division of the Memphis Police Department. On the night of the murder, as a part of his investigation, but before the investigation had focused on him, he talked with Mathis. Mathis related that he did not see the murder but heard the shot fired. He “didn’t have any idea” how Kimmons got the weapon.

This was the State’s entire case against petitioner. The State had established that Kimmons shot and killed Farmer. It had proved by two eyewitnesses that petitioner was not even at the scene, and by a third that he had gotten out of a car upon his return to the scene and apparently was somewhere in the vicinity. However, the State did not establish, by that third witness, that petitioner even witnessed the shooting. It had presented witnesses who said Kimmons bent down and removed the gun from his sock. The State’s witnesses had affirmatively stated that petitioner did not hand a gun to Kimmons. In short, the State did not prove that petitioner was a participant who had committed, or aided or abetted in the commission of, any crime.

c. Motion for Directed Verdict

At the conclusion of the State’s proof the petitioner moved the .court for a directed verdict.

During the course of the argument the State conceded that there was only “slim proof against Mr. Mathis.” It only argued a statement allegedly made by Tony Williams that petitioner had told him he had handed Kimmons the gun. It should be noted that Williams admitted to having made this statement to the police after they had represented to him that petitioner had “done this here.” On the stand he flatly denied that petitioner had given Kimmons a gun and attributed his statement to confusion and a fear that he was being considered a suspect. He was eighteen years old at the time of the trial. Moreover, the court correctly held this not to be substantive evidence.

The State, in argument, did not dwell on this act at any length. In fact, the State’s entire argument on the petitioner’s motion is covered in twenty-one lines of the transcript and concludes with the commendably candid statement by the Assistant District Attorney General:

The state quite agrees that other than his having been in the hall—in the hall, or in the room that is the proof against Mr. Mathis.

After noting that “[i]t’s close, there is no question about it; it’s very close,” the Trial Judge elected to take the motion under advisement and hear the entire case before making a final ruling. There is no authority in our practice or procedure in a criminal case for the trial judge to take under advisement a motion for a judgment of acquittal made at the conclusion of all the State’s proof. Rule 29(a), Tenn.R. Crim.P., clearly directs “the entry of judgment of acquittal ... if the evidence is insufficient to sustain a conviction . . .” It is only when a motion for acquittal is made “at the close of all the evidence” that the trial judge “may reserve decision on the motion, submit the case to the jury and decide the motion” either before or after jury or its discharge without having returned a verdict. See Rule 29(b). When the evidence is insufficient to support a conviction “the trial judge has no alternative but to direct a verdict of acquittal.” Overturf v. State, 571 S.W.2d 837, 839 (Tenn.1978).

Thus, the Trial Judge was in error. Petitioner’s counsel, however, did not pursue the matter in accordance with approved practice. When the court overrules, or does not act, upon a motion for an acquittal made at the conclusion of the State’s proof, if counsel is convinced as to the validity of the motion, he or she must then and there take affirmative action to confine the controversy to the proof already presented. He or she should announce that the defendant stands on his motion, will present no proof, disclaims any benefit of any evidence introduced by his defendant, disavows any detriment, and should state that the evidence presented by the co-defendant will not be binding upon him, and he should participate no further in the trial until after the conclusion of all the proof. See Caruthers’ History of a Lawsuit § 361 (8th ed. 1963). See also Pikeville Fuel Co. v. Marsh, 34 Tenn.App. 82, 232 S.W.2d 789 (1948).

Petitioner did not stand on his motion. In fact he made no objection to the action of the court and it was only after his co-defendant, Kimmons, had testified and closed that he announced that “Mr. Mathis rests.” This was after he had cross-examined Kimmons. The cross-examination was extremely brief but by it he received a favorable response to the critical issue of whether petitioner handed Kimmons a gun. By failure to close his case at the conclusion of the State’s proof and by participating in the trial by the cross-examination of his co-defendant, petitioner waived the error in the action of the court on his motion for an acquittal.

d. The Testimony of Kimmons

The only defense proof was the testimony of Kimmons. Most of it, of course, was directed at his own insistence of self-defense. We examine it only to the extent necessary to determine whether it is sufficient to make out a case against petitioner, whose conviction must rest solely upon the testimony of Kimmons, together with any corroboration thereof.

His version of the facts preceding the actual shooting is not essentially different from that expressed by the State’s witnesses. He says that about the time Farmer hit him and knocked him back against the tree, petitioner drove up. The fight continued and “somebody, you know, give me a pistol.”

Subsequently, the following question was asked and answer given:

Q. Bobby, do you know who gave you that gun out there that night?
A. From what — James Mathis was the only person behind me at the time. I don’t know if he give me the pistol. When I came back to Memphis, I asked Mr. Williams, I said, Man, did you give me the pistol. He said, no, I didn’t give you the pistol. He said, didn’t nobody get out of the car, but James Mathis you know. And, earlier before when we was fighting, when Mr. Shine was rushing me, I had turned and looked. I heard Mr. Mathis say, come on man, you know, like this here, you know. But, he had to be the only person behind me to give me the pistol. (Emphasis supplied).

On cross-examination the following testimony is pertinent:

Q. Mr. Kimmons, let me ask you this, sir. Did you see who actually gave you the pistol?
A. No, sir.
Q. So, you don’t know who gave you the pistol; is that correct?
A. No, sir, not really.

Variations of this testimony appear in the record; however, Kimmons consistently stated that someone handed him the pistol from behind him and that only petitioner was in this position.

There is no corroborative testimony in the record. To the contrary, the clear preponderance of the proof is contrary to the Kimmons version. In fact, all witnesses clearly refute the Kimmons version. It is of importance to note that the pistol used by Kimmons in the slaying was never discovered, nor was there any effort made to trace its ownership to the petitioner.

II.

Corroboration of the Testimony of an Accomplice

As a matter of law, Kimmons, the perpetrator or principal was an accomplice of petitioner. Boaz v. State, 537 S.W.2d 716 (Tenn.Crim.App.1976).

The Trial Judge correctly charged the jury that a conviction may not be based upon the testimony of an accomplice “unless there is evidence in the case independent of his testimony corroborating his testimony, which independent evidence tends to show the commission of the offense charged and that the defendant committed the offense.” Further, the Trial Judge correctly instructed that the corroboration is sufficient “if . . . without the aid of the accomplice’s testimony, [it] tends to show the commission of the offense charged and the connection of the defendant with the offense.” See T.P.I. — Crim. 37.09.

The corroboration in this case may not rest upon mere presence and opportunity; it must extend to the involvement of the petitioner as a participant, aider or abettor, in furnishing Kimmons with the gun. Without the testimony of Kimmons, the record is devoid of any proof that even points the finger of suspicion at petitioner. Therefore, there was no corroboration.

Without the testimony of Kimmons there is no independent evidence which fairly and legitimately tends to connect petitioner with the crime. He left the initial argument between Kimmons and the deceased, saying that it “wasn’t about nothing.” He went home and later returned. Why, the record does not reveal. The purpose may have been criminal or wholly innocent. We can only speculate. We can only speculate that he owned a gun and if so that it was the murder weapon. Aside from Kimmons’ uncorroborated testimony, the record clearly and conclusively shows that petitioner did not hand Kimmons a gun. Phrasing it another way, no witness, except Kimmons, even suggests that petitioner was present, aiding and abetting by handing petition a gun or otherwise. “A verdict of a jury may not be based alone upon conjecture, guess, speculation or a mere possibility.” Sullivan v. State, 513 S.W.2d 152, 154 (Tenn.Crim.App.1974).

“[TJhere must be some fact testified to, entirely independent of the accomplice’s testimony which, taken by itself, leads to an inference, not only that a crime has been committed, but also that the accused is implicated in the crime.” (Emphasis supplied). McKinney v. State, 552 S.W.2d 787, 789 (Tenn.Crim.App.1977).

The testimony in this case fails the test. There was no corroboration.

Reversed and dismissed.

BROCK, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      . They were also accompanied by James Gregory, a female impersonator, who did not testify. Apparently neither side had been able to locate him. The criminal investigator had made an unsuccessful effort to do so.

      . The Trial Judge overruled the motion for a directed verdict at the conclusion of all the proof.

      . Petitioner called no proof.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    UNION PLANTERS NATIONAL BANK OF MEMPHIS and Memphis Bank and Trust Company, Appellees, v. Jayne Ann WOODS, Commissioner of the Department of Revenue for the State of Tennessee, Appellant.
    Supreme Court of Tennessee.
    Dec. 3, 1979.
    William M. Leech, Jr., Atty. Gen. and Reporter, David S. Weed, Sr. Asst. Atty. Gen., Nashville, for appellant.
    David C. Scruggs, Dale Woodall, Cobb, Edwards, Hamlet, Nichol & Woodall, Memphis, for appellees.
   OPINION

COOPER, Justice.

This appeal presents the issue: Is Excise Tax Rule and Registration No. 1320-6-1.-22(a) (1974), as promulgated by the Commissioner of the Department of Revenue for the State of Tennessee, inconsistent with T.C.A. § 67-2701 (Supp.1975), so that excise taxes collected pursuant to the regulation were erroneously assessed? The chancellor answered the issue in the affirmative, and awarded the respondent taxpayers a refund of excise taxes and interest paid under protest. We affirm the chancellor’s decree.

Appellee Union Planters National Bank is a national banking association with its principal office in Memphis, Tennessee. Appel-lee Memphis Bank and Trust Company is a state banking association chartered in Tennessee, with its principal office also being located in Memphis. Both banks filed franchise and excise tax returns showing net operating losses in 1973 and in 1974, after the deduction of income from the obligations of the State of Tennessee and its political subdivisions as provided in T.C.A. § 67 — 2701(C) (Supp.1975). Both banks had profitable years in 1975 and, in filing their Tennessee Franchise and Excise Tax Return for that year, sought to carry forward the losses from the two previous years. See T.C.A. § 67-2701(B). The Commissioner of Revenue, citing the regulation promulgated by her, required the addition of previously excluded interest income to the net operating loss to determine the loss to be carried forward. Under the regulation, Union Planters National Bank was allowed to deduct a “net operating loss” of $4,997,711.00 which was $3,572,690.00 less than its computed net operating loss for the years 1973 and 1974. Memphis Bank & Trust Company, because of the application of the regulation, was allowed no deduction in 1975 for its net operating loss of $177,617.00 in 1973 and $241,337.00 in 1974.

The parties stipulated that Union Planters National Bank of Memphis paid Tennessee excise taxes in the sum of $192,030.00 for the calendar year of 1975 together with interest in the amount of $3,200.50, and that Memphis Bank & Trust Company paid $21,301.00 in excise taxes and $101.93 in interest for the calendar year 1975. The parties further stipulated that the taxes and interest paid by the banks were assessed and collected by the commissioner pursuant to T.C.A. § 67-2701 (Supp.1975) and Regulation No. 1320-6-1.22(a), and were paid by the banks under protest.

T.C.A. § 67-2701 (Supp.1975) provides that all corporations and all national banks doing business in Tennessee shall pay an annual excise tax equal to six percent of its net earnings for the next preceding fiscal year from business done within the State. Net earnings subject to tax are subject to certain adjustments — those pertinent to this action being paragraphs (B) and (C) of Section 67-2701, which are as follows:

(B) All entities enumerated hereinabove and taxable under this section may carry their current year’s losses forward two (2) years in computing net earnings subject to said tax.
(C) There shall be excluded from “net earnings” any income derived from bonds or other such obligations of the state of Tennessee, its instrumentalities or political subdivisions, including but not limited to counties, municipalities, utility districts, school districts and public authorities.

With the exception of exclusions set forth in the statute, such as in (C) above, the phrase “net earnings” is not defined. Neither is the term “losses,” as used in (B) above defined.

Tennessee Code Annotated § 67-2721 (Supp.1975) provides:

The commissioner of finance and taxation is authorized to make and promulgate rules and regulations, not inconsistent with this chapter, for the purpose of carrying out the provisions of this chapter, which rules and regulations, when approved by the attorney general, and when promulgated and published, shall have the force and effect of law.

The Department of Revenue promulgated Excise Tax Rule and Regulation No. 1320-6-4.22(a) (1974) applicable to the tax years in question, which addresses loss carryovers in the following language:

The term “losses” as used in Section 67-2701, T.C.A. is hereby defined as the excess of allowable deductions over total income for the taxable year. The amount of “losses” that may be carried forward will be subject to the following adjustments:
(a) There shall be added to the net loss as determined for excise tax purposes . all interest . . . excluded from net earnings pursuant to Subsection[s] . . .(C) of Section 67-2701, T.C.A.

The Tennessee Excise Tax Statute §§ 67-2701 et seq. (Supp.1975) does not specifically define “losses” to be carried forward in computing net earnings subject to the excise tax. Neither does it define “net earnings.” It does however direct in mandatory terms that “There shall be excluded from ‘net earnings’ any income derived from bonds or other such obligations of the state of Tennessee, its instrumentalities or political subdivisions, . . . .” The obvious purpose of the exclusion of such income from the impact of the excise tax is to make the obligations of the State, its in-strumentalities and political subdivisions, attractive to corporate investors and national banks at a lower interest rate than otherwise would be demanded by the buyer of the bonds. The effect of the regulation adopted by the Commissioner of Revenue is to tax income from state bonds where the corporation attempts to offset net earnings by losses sustained in the preceding two years. This is contra to the specific directive of the legislature that income from bonds or other such obligations of the state be excluded from the impact of the excise tax, and defeats the purpose of the legislature in granting such an exclusion. This being so, it necessarily follows that the Commissioner of Revenue manifestly abused her discretion in promulgating Rule and Regulation No. 1320-6.-1.22(a) and taxes paid because of the application of the rule must be refunded to the taxpayer where, as in this case, payment was made under protest.

The decree entered in the Chancery Court of Shelby County is affirmed.

BROCK, C. J., and FONES, HENRY, and HARBISON, JJ., concur.


author: SANDERS, Judge.

text:
    T. J. NELSON and wife, Katherine Nelson, Plaintiffs-Appellants, v. FORD MOTOR CREDIT COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    July 6, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.

      Jack H. McPherson, Jr., McPherson & Blevins, Kingston, for plaintiffs-appellants.
    George F. Legg, Stone & Hinds, Knoxville, for defendant-appellee.
   OPINION

SANDERS, Judge.

The sole question for determination on this appeal is proper venue in a transitory action.

The Plaintiffs-Appellants, T. J. Nelson and wife, Katherine Nelson, filed suit in the Circuit Court of Roane County against the Defendant-Appellee, Ford Motor Credit Company. The suit is premised on tortious actions of the Defendant constituting “outrageous” conduct. The Plaintiffs are residents of Roane County. The Defendant is a foreign corporation with offices and place of business in Knox County. Plaintiffs allege in their complaint that they purchased a Ford automobile from East Tennessee Motor Company in January, 1976. The automobile was purchased on a retail installment contract which was to be paid in 42 monthly installments. After making their February payment they were informed the contract had been assigned to Ford Motor Credit Company. The complaint alleges that although Plaintiffs made their monthly payments to the Defendant over the next 12 months they were constantly receiving letters and telephone calls from the Defendant telling them their payments had not been received, their payments were delinquent, sending them statements for late charges, threatening to repossess their automobile, and they conclude their complaint as follows: “The plaintiffs assert that Ford Motor Credit Co. and its employees have been seriously negligent in their handling of this matter; that Ford Motor Credit Co. and its employees have been deliberately abusive; that the plaintiffs have suffered much embarrassment, mental anguish and suffering and have been greatly inconvenienced in having to take off time from their jobs to obtain records and have incurred expense in attempting to supply the records requested by Ford Motor Credit Co. to ‘prove that the plaintiffs were not delinquent’; that the plaintiffs have been illegally charged with an accumulation of service charges which are not owed and that their reputation and credit have been damaged all by the outrageous conduct and negligent acts of the defendant.

“WHEREFORE, the plaintiffs sue the defendant for damages in the amount of $25,000.00 compensatory and $100,000.00 punitive and demand a jury to try the cause.”

The Defendant filed a motion to dismiss the complaint on the grounds of improper venue. In its motion it says it is a foreign corporation and as such it may be sued only in a county where it maintains an office or agency for the transaction of business or in the county where the cause of action arose, pursuant to T.C.A. § 20-405 and § 20 — 407. It further says all the activities of the Defendant’s agents and employees occurred in Knox County. Venue, accordingly, lies only in Knox County.

The Circuit Judge sustained the motion and the Plaintiffs have appealed, assigning the action of the Court as error.

The portion of T.C.A. § 20-407 which we hold to be controlling in this case provides:

“VENUE OF ACTIONS AGAINST FOREIGN CORPORATIONS. — The venue of all actions, suits or proceedings against a foreign corporation in case of service of process upon its registered agent, or, in lieu thereof, upon the secretary of state, may be in the county in which the cause of action arose or accrued; or, in the county where the one to be served resides and the process is so served, except where the action is local in nature.”

Defendant filed an affidavit in support of its motion, which says, “Ford Motor Credit Company maintains its principal office in Dearborn, Michigan, and the corporation’s registered agent for process is located in Knox County, Tennessee. No agents or officers of Ford Motor Credit Company are located in Roane County, Tennessee.”

This narrows the issue to one question— Where did the cause of action arise or accrue? The Defendant says all the actions for which the Defendant has been charged, if true, were done or performed by its agents and employees at the Knoxville office. For this reason the cause of action, if any, arose or accrued in Knox County. The Plaintiffs, however, say that since the letters and telephone calls were received by the Plaintiffs in Roane County, the cause of action arose or accrued there.

We have been cited to no cases, nor have we found any, directly in point on this issue. The case of Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292 (1933) is not directly in point but is worthy of consideration. There the defendant released certain pollution into a stream in Laurel District. The stream flowed from Laurel District into Ellisville District. For purposes of venue the two districts are the same as two counties. Suit was filed in Ellisville District where the plaintiffs lived and owned property. The defendant challenged the right of the plaintiffs to maintain the suit in Ellisville District. As pertinent here, the Supreme Court of Mississippi said:

“The question here is, where did this cause of action accrue? Section 495, Code 1930, uses this language: ‘Where the cause of action may occur or accrue.’ It is true that the alleged pollution of the waters of Tallahalla creek took place in the Laurel district; there appellant emptied into the creek the refuse matter that in part caused the pollution, but the injuries did not accrue to appellees until the waters passed out of the Laurel district into the Ellisville district. The polluted waters were entirely harmless so far as appellees were concerned until they reached the Ellisville district; there the injuries took place, although the cause arose in the Laurel district. We conclude, therefore, that the cause of action accrued in the Ellisville district.”

It will be observed the Mississippi statute is similar to ours in that it provides that suit may be maintained in the county where the cause of action “arose” or “accrued." In the Masonite Corp. case, supra, the court found that, although the cause of action “arose” in Laurel District, the cause of action “accrued” in Ellisville District.

In the case of Medlin v. Allied Investment Company, 217 Tenn. 469, 398 S.W.2d 270 (1966) our Supreme Court held that before recovery can be had in a cause of action for “outrageous” conduct two factors must concur: “(a) the conduct complained of must have been outrageous, not tolerated in civilized society, and (b) as a result of the outrageous conduct, there must be serious mental injury.”

If, in the case at bar, the Plaintiffs are able to meet this criteria it would appear that although (a) the outrageous acts occurred in Knox County (b) the mental injury occurred in Roane County. “(W)here the tort is committed in one county or district and the injury occurs in another county or district, suit may be brought in either.” 92 C.J.S. Venue § 66, Torts, p. 767. “Cause of action ‘accrues’ on date that damage is sustained and not date where causes are set in motion which ultimately produce the injury.” Black’s Law Dictionary, Revised 4th Ed.

We, accordingly, hold the Plaintiffs’ cause of action accrued in Roane County. Therefore, venue lies in Roane as well as Knox County.

The assignment of error is sustained. The judgment of the Trial Court is reversed and the case is remanded for a trial on its merits.

The cost of this appeal is taxed to the Appellee.

GODDARD and FRANKS, JJ., concur.


author: W. C. DAVIS, Judge. ODOM, Judge. DOUGLAS, Judge, DALLY, Judge,

text:
    David RIGGALL, Appellant, v. The STATE of Texas, Appellee.
    No. 57985.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.
    On Rehearing Dec. 5, 1979.
    Donald L. Davis, Hereford, for appellant.
    Andy Shuval, former Dist. Atty., Ronald Saul, Dist. Atty., Hereford, and Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Appeal is taken following a plea of guilty to a charge of theft, where punishment was assessed pursuant to a plea bargain agreement at six years confinement. This appeal is limited to pre-trial matters raised by written motion. Article 44.02, V.A.C.C.P. In September of 1976, appellant was an inmate at the New Mexico State Penitentiary. In that same month, the State filed a detainer warrant on appellant, charging him with theft. Beginning in March of 1977, appellant communicated in writing to the State his desire to have counsel appointed and his demand for a speedy trial. In an order dated April 8, 1977, the trial court granted appellant’s speedy trial motion but failed to appoint counsel. This same order directs a return of appellant by May 1, 1977, to stand trial on the theft charge. There followed involved and confusing communications between appellant and the State, resulting in a six-month delay in getting appellant before the court and appointing counsel. During this period of delay, appellant filed written motions to dismiss for failure to prosecute.

Supporting his claim, appellant directs our attention to Article 28.01, V.A.C.C.P., which, in pertinent part, reads:

“ . . . the defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding.”

Appellant urges that this procedure was violated when neither appellant nor an attorney for appellant participated in the hearing that resulted in the order overruling appellant’s motion to dismiss dated May 25, 1977.

The record does not reflect a hearing was had on appellant’s motion to dismiss. However, Article 28.01 does not speak to hearings alone but mandates the appearance of a defendant at “any pre-trial proceedings.” We must determine if this order of May 25th is a proceeding under Article 28.01.

The order overrules appellant’s motion to dismiss and recites that the cause “came on to be heard” on May 25. The order itself contains four paragraphs which are labeled by the trial court as findings of fact and conclusions of law. These recitations indicate there was at least some proceeding from which the trial court made its conclusions; therefore, the order of May 25 is a proceeding under Article 28.01. Clearly, appellant or his appointed counsel should have been present. Ex parte LeMay, 525 S.W.2d 1 (Tex.Cr.App.1975); Article 28.01, V.A.C.C.P.

The State does not discuss the failure of the trial court to appoint counsel or have appellant present on May 25. Rather, the State seems to suggest that the error, if any, was harmless because the appellant finally got his trial.

Such a harmless error argument was approved in Cleveland v. State, 573 S.W.2d 33 (1978). In Cleveland, the appellant was not present when certain written, pre-trial motions were considered. However, appellant’s attorney was present and we held that in an absence of a showing of harm, there was no reversible error. Accord, Mares v. State, Tex.Cr.App., 571 S.W.2d 303 (1978).

Appellant’s situation is factually distinguishable. The proceeding on May 25th was completely ex parte. The appellant was incarcerated in New Mexico and no attorney had been appointed. Such proceedings come squarely under Article 28.01, V.A.C.C.P., and harm need not be shown. Under the facts in appellant’s case, he had an absolute right to be present or to be represented by counsel.

The absence of appellant or his appointed counsel at the pre-trial proceedings of May 25 denied appellant the opportunity to support his motion to dismiss and controvert any facts presented by the State. We hold that the consideration, ex parte, of appellant’s motion to dismiss violated the provisions of Article 28.01, V.A.C.C.P.

The judgment is reversed and remanded.

DOUGLAS, J., dissents.

PHILLIPS, J., concurs in results.

Before the court en banc.

MOTION FOR REHEARING

ODOM, Judge.

Appellant was convicted of theft on his plea of guilty and punishment was assessed at six years.

On original submission the conviction was reversed because the trial court considered and denied his pre-trial motion to dismiss for denial of a speedy trial in an ex parte proceeding, which violated the requirement of Art. 28.01, V.A.C.C.P., that the defendant be present “during any pre-trial proceedings,” and also violated his right to counsel.

By motion for rehearing the State presents two arguments to affirm this conviction. First, it argues that appellant’s guilty plea should constitute a waiver of the right to speedy trial, i. e., of the matter urged in the pre-trial motion that was denied ex parte. As appellant points out in his response to the State’s motion, Article 44.02, V.A.C.C.P., expressly permits an appeal after a guilty plea from a matter raised by a pre-trial motion. In Ferguson v. State, 571 S.W.2d 908, we held that the amendment to Art. 44.02, supra, abolished the rule that a valid guilty plea waives all non-jurisdictional defects in cases where there is a plea bargain and punishment is assessed within the terms of the agreed recommendation. Appellant’s guilty plea did not waive his pre-trial motion to dismiss for denial of a speedy trial.

The other argument presented in the State’s motion for rehearing points out that after appellant’s motion was overruled in the ex parte proceeding, counsel was appointed for appellant and the record is silent as to whether the motion was ever reurged. Apparently the State contends this was a waiver. We cannot infer a waiver of counsel from a silent record:

“[A]n accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Barbour v. State, 551 S.W.2d 371; Thomas v. State, 550 S.W.2d 64. To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra; Thomas v. State, supra. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself. Thomas v. State, supra; Webb v. State, 533 S.W.2d 780.” Jordan v. State, 571 S.W.2d 883.

We remain convinced that appellant’s rights were violated in both respects stated on original submission. We will nevertheless reconsider that decision to the extent that it ordered a reversal of appellant’s conviction.

In Trevino v. State, 565 S.W.2d 938, we were confronted with a situation in which the defendant had been denied his right to counsel at the hearing on his motion for new trial. It was held that the appropriate relief was not to reverse the conviction, but, instead, to return the case for a second hearing on the motion at which the defendant would be afforded his right to counsel. It was emphasized in Trevino that this was possible because a motion for new trial is heard after the conviction and is actually a part of the review process. While that fact would distinguish Trevino from the instant case, in which the right to counsel was denied at a proceeding before trial, a more recent case suggests that a second hearing at this date would be sufficient even though the error accompanied a pre-trial hearing.

In Brandon v. State, Tex.Cr.App. (No. 59348, 1979), it was held that the defendant was denied due process and a fair hearing on his pre-trial hearing to determine competency to stand trial. The relief ordered, however, did not require invalidation of the subsequent trial and reversal of the conviction. Instead, the cause was remanded with directions that the trial court empanel a jury to make a retrospective determination of the defendant’s competency. He was to be granted a new trial if the jury found him incompetent; if he were found competent, an appeal would be allowed to review only the competency proceedings.

For purposes of determining the appropriate relief in this case, which likewise presents reversible error at a pre-trial proceeding, we conclude that Trevino v. State and Brandon v. State, supra, support modification of the relief ordered by our decision on original submission. Accordingly, we abate this appeal and remand this case for a hearing on appellant’s motion to dismiss for denial of a speedy trial. A record of that hearing shall be prepared in the manner required by Art. 40.09, V.A.C.C.P. and transmitted to this Court for further disposition.

It is so ordered.

DOUGLAS, Judge,

dissenting.

On a plea of guilty, appellant was convicted of theft over the value of $200 and less than the value of $10,000. The majority overrules the State’s motion for rehearing. More of the facts will be set out.

On April 1, 1977, appellant was indicted in Deaf Smith County. On April 8, 1977, the judge of the District Court of Deaf Smith County ordered the sheriff to transport appellant from the New Mexico State Penitentiary to Deaf Smith County jail no later than May 1, 1977 and that the cause be set down number one on the next jury docket.

The district attorney was informed by a latter from the warden of the New Mexico penitentiary that Riggall could not be returned until the interstate compact on de-tainers was complied with.

The State made attempts to return Rig-gall to Deaf Smith County for trial. As reflected by the correspondence in the records, on the 13th of May, 1977, appellant filed a motion to dismiss the prosecution because he had been denied a speedy trial.

On May 25, 1977, the judge entered an order denying the dismissal of the prosecution and found (1) that the prosecution stood ready since September, 1976, and stands ready, to try the defendant at the earliest opportunity; (2) the reason there has not been a trial is that defendant had failed to sign a waiver of extradition and the proper papers for extradition from New Mexico; (3) that the only reason defendant had not been tried as of this date was of his own doing; (4) that should the defendant wish to be tried, he must complete the necessary papers from New Mexico authorities and send them to the receiving agency in Deaf Smith County, then the sheriff of Deaf Smith County or his agent will pick up the defendant immediately and will set him down for the next jury docket.

The clerk of Deaf Smith County filed a letter from Riggall, dated July 1, 1977, which is as follows:

“I am at this time advising the Honorable Court of my intent to withdraw my consent to and my application for speedy trial in your court, cause No. DC 2800. I have also notified the District Attorney and the Warden here of my intent.
Sincerely,
/s/ James Riggall
23597”

August 29, 1977, the court ordered an attorney appointed for Riggall.

On October 5,1977, the attorney asked to withdraw from the case and on the same date another attorney was appointed.

On October 28, 1977, appellant signed a document approved by his attorney and the district attorney and the judge entitled “Waiver of Rights and Plea of Guilty” where he recited that he had been advised of his rights (1) to remain silent and not testify against himself, (2) to employ a lawyer, (3) to demand a jury trial, (4) to notice for two days before the time for arraignment, and (5) to have ten (10) days to prepare for trial; that he waived his rights without coercion or duress and entered the plea of guilty as charged and asked the court to assess the punishment.

After this case was tried, the Legislature passed the Speedy Trial Act, Article 32A.02, Section 3, V.A.C.C.P., which provides, in part:

“[Fjailure of a defendant to move for discharge under the provision of this Article prior to trial or the entry of a plea of guilty constitutes a waiver of the rights accorded this article.” (Emphasis supplied)

It provides that the entry of a plea of guilty constitutes a waiver of his rights. The reasoning of the Legislature in enacting the statute should apply in this case.

Appellant entered a plea of guilty in accordance with the plea bargaining agreement in an effort to receive a lesser punishment. He could have entered a plea of not guilty and had a full-fledged trial.

If the court had not denied the motion to dismiss the prosecution, appellant would have been in the same position as he was when he filed the motion. No harm has been shown. In either event, he was not denied a .speedy trial.

No reversible error is shown; the judgment should be affirmed.

DALLY, Judge,

dissenting.

If the Court considered the pretrial motion for speedy trial out of the appellant’s presence, no “matter” as contemplated by Art. 44.02, V.A.C.C.P. was “raised.” When the appellant entered a plea of guilty without renewing his motion for speedy trial he waived that issue. The State’s motion for rehearing should be granted and the judgment should be affirmed.

ONION, P. J., and TOM G. DAVIS, J., join in this opinion.

      . The record reflects two written requests for the appointment of counsel and the completion of two forums indicating a desire that counsel be appointed during the six-month period.

      . These pro se motions are a part of this record and are the basis of our review under Article 44.02, V.A.C.C.P.

      . The record indicates that the trial court may have been misinformed by this ex parte proceeding and thus reached an improper conclusion. The records reflect the following:
      April 20 The warden of the New Mexico Penitentiary informed the State by letter that in order for appellant to be released, the State should forward form V of the “Agreement on Detainers.”
      May 25 The trial court proceeded without appellant or his attorney present and concluded that the reason the appellant had not been tried was “because of his own cause.” July 11 The State encloses form V and VII in a letter to the warden in New Mexico.
      These facts indicate that the State contributed to the six-month delay and would have supported appellant’s motion to dismiss.


author: PHILLIPS, Judge. CLINTON, Judge.

text:
    Ex parte Ruben MERCADO, Appellant.
    No. 60955.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 16, 1979.
    Rehearing Denied Nov. 21, 1979.

      Charles S. Black, Jr., Austin, for appellant.
    Ronald D. Earle, Dist. Atty., Bill White, Asst. Dist. Atty., and Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is a post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P.

Petitioner contends that because of the language of V.T.C.A., Family Code, Section 51.02(1)(B) and his prior adjudicated status as a delinquent child, the district court lacked jurisdiction to try him for the offense of aggravated robbery committed after his 17th birthday without a waiver of jurisdiction being entered by the juvenile court under Section 54.02 of the Family Code.

We cannot interpret the statutory provisions cited to us without reference to their context. V.T.C.A., Penal Code, Section 8.07(b) and (c) provide:

(b) Unless the juvenile court waives jurisdiction and certifies the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age except:
(1) perjury and aggravated perjury when it appears by proof that he had sufficient discretion to understand the nature and obligation of an oath;
(2) a violation of a penal statute cognizable under Chapter 302, Acts of the 55th Legislature, Regular Session, 1957, as amended, except conduct which violates the laws of this state prohibiting driving while intoxicated or under the influence of intoxicating liquor (first or subsequent offense) or driving while under the influence of any narcotic drug or of any other drug to a degree which renders him incapable of safely driving a vehicle (first or subsequent offense); or
(3) a violation of a motor vehicle traffic ordinance of an incorporated city or town in this state.
(c) Unless the juvenile court waives jurisdiction and certifies the individual for criminal prosecution, a person who has been alleged in a petition for an adjudication hearing to have engaged in delinquent conduct or conduct indicating a need for supervision may not be prosecuted for or convicted of any offense alleged in the juvenile court petition or any offense within the knowledge of the juvenile court judge as evidenced by anything in the record of the juvenile court proceedings.

V.T.C.A., Penal Code, Section 1.05(a) provides:

(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

V.T.C.A., Family Code, Section 51.01(3) provides:

This title shall be construed to effectuate the following public purposes: .

(3) consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation; .

V.T.C.A., Family Code, Section 54.02(a) provides:

(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.

We believe that the Legislature did not intend to impede adult prosecution of adjudicated delinquents for offenses they commit between their 17th and. 18th birthdays. A reasonable interpretation of the statutory provisions relied on by petitioner is that he is not subject to prosecution as an adult for offenses against the Penal Code committed prior to his 17th birthday, save for those specifically excepted under V.T.C.A., Penal Code, Section 8.07(b), (1) through (3), or in which the juvenile court waives its jurisdiction. In fact, previously adjudicated delinquents who subsequently commit penal offenses after reaching age 17 demonstrate rather markedly the failure of the purposes of the Family Code — specifically the purpose of “treatment, training, and rehabilitation.” Section 51.01(3), supra. To interpret the statutes as petitioner contends would result in unequal protection of the laws for a small class of individuals without any justifying State interest.

In further and independent support of our interpretation is the Dallas Court of Civil Appeals opinion in In Matter of A_ N_M_, 542 S.W.2d 916 (1976). There the court interpreted the Family Code as not affecting previous law that held a commitment of a juvenile to the Texas Youth Council was an abdication of the juvenile court’s jurisdiction over the child in favor of the Council’s. See and cf. Tex. Att’y Gen. Op.No.H-642 (1975).

We therefore hold that any person, regardless of his or her previous history of juvenile adjudication, who commits an offense against the laws of this State after reaching 17 years of age is subject to prosecution as an adult without any preliminary proceedings in the juvenile courts. Accordingly, the relief petitioner seeks is denied. Before the court en banc.

MOTION FOR REHEARING

CLINTON, Judge.

May 24, 1973 the Senate concurred in House amendments to S.B.No.34 and thereby enacted the new Texas Penal Code. It was approved June 14, 1973 to generally become effective January 1, 1974. Its § 8.07, Age Affecting Criminal Responsibility, insofar as pertinent here, then provided in subsection (b):

“(b) ... (A) person who is younger than 17 years [of age] may not be prosecuted or convicted for any offense, unless the juvenile court waives jurisdiction and certifies him for criminal prosecution.”

May 25, 1973, the Senate concurred in House amendments to S.B.No.111 and thereby enacted Title 3 of the Family Code. It was approved June 16, 1973 to become effective September 1, 1973. Its § 51.02, Definitions, insofar as pertinent here, provided in subsection (1):

“(1) ‘Child’ means a person who is:
(A) ten years of age or older and under 17 years of age; or
(B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.”

Section 2 of S.B.No.lll amended Article 30, Penal Code, 1925, Children Not Punishable, insofar as pertinent here, to provide in Section (b):

“(b) Unless the juvenile court waives jurisdiction and certifies the individual for criminal prosecution, á person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age (with exceptions not applicable here).”

These statutory provisions were still in effect on June 27, 1975 when appellant, then, fourteen years old and having been adjudicated a child in need of supervision, was committed by the Juvenile Court of Travis County to the care, custody and control of the Texas Youth Council for an indeterminate period not to exceed his eighteenth birthday.

The extremely narrow question presented in this post-conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C. C.P., is whether they, the statutory provisions, and that fact, the commitment of applicant, so endowed him with a status of a “child” within the meaning of § 51.-02(1)(B), supra, as to make him immune from prosecution as an adult for the felony offense of aggravated robbery committed while on some character of release — but not discharge — from restraint by the Texas Youth Council, after he had become seventeen years of age but before the eighteenth anniversary of his birth. A panel opinion delivered May 16,1979, denied relief, but in doing so wrote rather broadly with respect to anomalous consequences of adopting applicant’s interpretation and the opinion of the court in the Matter of A_N_M_, supra, at note 6. Leave to file applicant’s motion for rehearing was granted in order to explore and analyze the competing contentions of the parties to the end that our answer to the question is as narrow as the question.

The matter is simply one of statutory interpretation — albeit making the interpretation may not be simple. Applicant sees a need to reconcile “the conflicting sections” of the respective codes we have excerpted ante. The State argues from a scholarly stated view that § 51.02(1)(B) “merely extends juvenile jurisdiction through [sic] the age of 18 for those persons who committed the act in question before they reached age 17, and that penal acts committed by a person after 17 may be prosecuted in the District Court without regard to any prior juvenile action.” Aided somewhat by both but not adopting wholeheartedly either position, for reasons about to be stated the Court will overrule applicant’s motion for rehearing and deny the relief he seeks.

Applying germane rules of statutory construction, as mandated by V.T.C.A. Penal Code, § 1.05(b) and the Code Construction Act, Article 5429b-2, V.A.C.S.,. we first find that the suggested reconciliation of the Penal Code and Family Code provisions, excerpted above, is not necessary. Section 3.11(c) dictates:

“The repeal of a statute by a code does not affect an amendment, revision, or reenactment of the statute by the same legislature which enacted the code. The amendment, revision, or reenactment is preserved and given effect as part of the code provision which revised the statute so amended, revised, or reenacted.”

We agree then, with the statement in the practice commentary following § 8.07, “Thus the Family Code amendment to old Article 30 controls.” Therefore the problem is not reconciliation but interpretation and construction of two provisions within the Act that gave us the Family Code and revised Article 30 of the 1925 Penal Code.

The definition of “child” in § 51.02(1) identifies two distinct classifications: one, the person over ten and under seventeen years of age and, two, the person seventeen years or older and under eighteen years of age who has committed acts of chargeable conduct before becoming seventeen years of age. “Exclusive original jurisdiction” over a “child,” as thus bottomed, is bestowed on the juvenile court on the basis of one classification or the other, and they appear to be mutually exclusive. The first class is based purely on age with implicit underlying contemporaneous delinquent conduct; the second embraces explicitly both a narrow age bracket and the commission of offending acts before reaching that age. Obviously the second class is made redundant by the first — inevitably a member of the first class will simply age into the second — unless we find a legislative intent and purpose to specialize the second class. We do.

They are, we are satisfied, to provide juvenile court jurisdiction to that limited category of young persons who commit unlawful acts before becoming age seventeen but who, for one reason or another, have not been brought within the juvenile justice system for those acts prior to reaching seventeen years of age. Thus the juvenile status of a person who ceased to be a child under § 51.02(1)(A) is continued for less than one year in order for the system to deal with that person until jurisdiction is terminated by law at age eighteen. The plainly permissible objective is to provide an opportunity for the juvenile authorities to apply corrective measure to one whose chargeable acts are not found out until so near his seventeenth year that the initial jurisdiction of the system cannot be invoked while the person is still sixteen. Such intent, purpose and objective are derived directly from the language of § 51.02(1)(A) and (B).

Dovetailing the language of § 51.02(1)(B) with that of Article 30, P.C., as amended by S.B.No.111, supra, leaves no doubt that between September 1, 1973 and September 1, 1975, in the absence of waiver and certification by the juvenile court, a person — of whatever age — was not to be criminally prosecuted in a district court for any offense committed before becoming seventeen (with inapplicable exceptions), yet that same person, while between seventeen and eighteen, may be adjudicated and disposi-tioned by the juvenile court for chargeable acts committed before becoming seventeen. Thus, after passing the seventeenth anniversary of one’s birth, a person is no longer a “child” with respect to criminal conduct committed after that occasion, and there is not any prohibition known to this Court against such a person being criminally prosecuted as an adult. The fact that at age fourteen he may have been adjudicated and committed to TYC does not, at law, preserve his favored status as a “child” against prosecution for a penal offense committed after reaching seventeen and before becoming eighteen.

We hold that the statutory provisions in effect and the fact of adjudication and commitment to TYC by the juvenile court in June 1975 did not so endow our applicant with the status of a child within the meaning of § 51.02(1)(B) that he was immune for prosecution as an adult for the felony offense of aggravated robbery committed by him while at large from custodial restraint by TYC after he had become seventeen years of age but before he reached eighteen years of age. We decide no more than this and leave for another day all other questions that may arise from post September 1, 1975 situations.

Accordingly, appellant’s motion for rehearing is in all things overruled, and the relief he seeks is denied.

DOUGLAS and DALLY, JJ., concur in the result.

      . V.T.C.A., Family Code, Section 51.02(1)(B):
      (1) “Child” means a person who is: .
      (B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.

      . On June 6, 1975, prior to petitioner’s 17th birthday, he was so adjudicated in a juvenile court of Travis County in Cause No. J-5834.

      . Acts 1973, 63rd Leg., ch. 399.

      . Acts 1973, 63rd Leg., ch. 544.

      .Section 4 of S.B.No. 111, in providing its effective date, further mandated that the Act “governs all proceedings, orders, and judgments brought after it takes effect . . . ”

      . 2 V.T.C.A. Family Code 467.

      . Acts 1975, 64th Leg., ch. 693, p. 2158, § 24, amended § 8.07(b), supra, to read exactly as § 2 of the Family Code, amended Article 30, supra, to read and, accordingly, repealed the latter. Its § 5 also made clear that Title 3 governed proceedings involving offending conduct “engaged in by a person who was a child within the meaning of this'title at the time he engaged in the conduct,” that is now § 51.04(a). However, that act did not become effective until September 1, 1975 — slightly more than a month after our applicant was committed to TYC.

      . As to commitment to the Texas Youth Council and its options, see generally Matter of A_ N_ M-, 542 S.W.2d 916, 920-921 (Tex.Civ.App. Dallas 1976) and Texas Juvenile Defense Manual, Revised Edition, CDLP, 1978 Chapter 15, pp. 77-83.

      . Applicant himself views with alarm the notion that commitment of a child to the Texas Youth Council by a juvenile court is “an abdication of the juvenile court’s jurisdiction over the child in favor of the Council’s,” as expressed in the panel opinion. We hear that alarm and our disposition of this case is not based on that ratio decidendi.

      . “Vexing problems” envisioned thirty years ago in Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983, 989 (Tex.Cr.App.1947) still remain.

      . Steele, “The Treatment of Juvenile Under the Family Code: An Overview,” 5 Tex.Tech.L.Rev. 589, 591 (1974): A “child” within the meaning of § 51.02 is a “person 10 years of age or older and.under 18 years of age who is alleged to have committed the act in question before his seventeenth birthday.” (Emphasis by the State.)

      . Section 1.05(b) includes application of § 3.11 of the Act to the construction of the penal code unless context requires a different one, and we find here that it does not.

      . V.T.C.A. Family Code, Article 51.04(a) so characterized it in the phrase, “The juvenile court has exclusive original jurisdiction over proceedings . . Also in id. Article 54.-02(a).

      . We do not mean to say that a young person could never be subjected to the jurisdiction of a juvenile court on the first basis and then the other, for such a situation may easily be envisioned, but we need not examine the possibility for the factual setting here does not raise the matter. Our applicant was adjudicated and committed only once — in June 1975 when he was fourteen years old — so that the juvenile court acquired jurisdiction over him as a member of the first class defined in § 51.02(1)(A).

      . So here appellant is said to be in the second class merely by becoming seventeen years of age, having earlier been found a delinquent for acts committed before reaching that age.

      . V.T.C.A. Family Code, § 54.05(b).

      . See Wood v. State, 171 Tex.Cr.R. 307, 349 S.W.2d 605, 607 (Tex.Cr.App.1961) for a similar conclusion under the former delinquent child act. Article 2338-1, V.A.C.S. See also Pruett v. State, 463 S.W.2d 191, 192 (Tex.Cr.App.1971).


author: TOM G. DAVIS, Judge.

text:
    Jerry Michael MOSES, Appellant, v. The STATE of Texas, Appellee.
    No. 62282.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 7, 1979.
    Richard T. McConathy, on appeal only, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Bruce Evan Foster and Hugh Lucas, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.

      Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On January 27,1978 appellant pled guilty to the offense of driving a motor vehicle while intoxicated on a public highway, second offense. Punishment was assessed at two years probated and a fine of $500.00. On February 26, 1979 a motion to revoke probation was filed alleging among other violations that appellant violated condition “(a)” in that on or about January 20, 1979 he operated a motor vehicle upon a public highway in Dallas County while his driving privileges were revoked and condition “(g)” that he remain in Dallas County in that he was in Harris County on or about February 12,1979 without permission of his probation officer.

At the hearing on the motion to revoke appellant entered a plea of true. A written stipulation of evidence signed and sworn to by appellant and approved by his counsel was admitted in evidence. In the stipulation appellant admitted violations as alleged by the State in its motion. In addition the appellant took the stand and testified at the hearing. At the conclusion of the hearing the court entered its order revoking appellant’s probation. Findings were set forth in such order reflecting that appellant violated conditions “(a)” and “(g)” of his probation.

Appellant contends “the trial court erred in failing to withdraw appellant’s plea of true and enter a plea of not true.” '

Appellant directs our attention to his testimony which he urges showed the approval of his probation officer in leaving Dallas County. Appellant testified:

“My probation officer has told me repeatedly that she thinks the best thing I can do is move out of Dallas, and I have a job out of Dallas, and she said she’s willing to give me a work permit, and that’s what I’d like to do.”

At the outset it should be noted that appellant’s plea of true and the written stipulation offered into evidence support the court’s finding relative to the violation of condition “(a)” concerning appellant’s operation of a motor vehicle on a public highway while his driving privileges were revoked. Proof of any one of the alleged violations is sufficient to support the order revoking probation. Gobell v. State, Tex.Cr.App., 528 S.W.2d 223. In addition, appellant’s reliance on Roberson v. State, Tex.Cr.App., 549 S.W.2d 749 for the proposition that the trial court should withdraw a plea of true when the probationer takes the stand and raises a defensive issue is misplaced. In Cole v. State, 578 S.W.2d 127 this Court relied on Moon v. State, Tex.Cr.App., 572 S.W.2d 681 in overruling Roberson by holding that there is no duty upon a trial court to withdraw a plea of true in a revocation of probation proceeding even if a probationer presents a defensive issue. Appellant’s plea of true, standing alone is sufficient to support the revocation of probation. Cole v. State, supra; Benoit v. State, Tex.Cr.App., 561 S.W.2d 810; Jiminez v. State, Tex.Cr.App., 552 S.W.2d 469.

No abuse of discretion is shown in the trial court’s action in revoking appellant’s probation.

The judgment is affirmed.

      . In Moon v. State, supra, this Court held that when a defendant waives a jury and pleads guilty to the trial court, the trial court has no duty to withdraw the plea even if the evidence raises a defensive issue.


author: ODOM, Judge. DALLY, Judge,

text:
    Ex parte James FELTON, Appellant.
    No. 62654.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 7, 1979.
    Rehearing Denied Dec. 19, 1979.
    None for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P.

On May 30, 1973, James Felton, the applicant in this case, was convicted of murder with malice in cause no. 1251 in the 71st District Court in Harrison County. According to the court records attached to his application, Felton was convicted by the court on his plea of guilty and punishment was assessed at twenty years. Also attached to his application are forms filed in that case for waiver of the right to trial by jury, an agreement to stipulate testimony, and for approval of the district attorney and consent of the court. The place on the waiver of jury trial form for the signature of the accused is blank. This record is the basis for Felton’s application for relief. He contends the conviction in cause 1251 is void because his guilty plea was received in violation of Articles 1.13 and 1.15, V.A.C.C.P.

Article 1.13 supra, provides:

“The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of. the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him.” (Emphasis added.)

Article 1.15, supra, provides in part:

“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; . . .” (Emphasis added.)

Although a printed jury waiver form was filed in cause 1251, it was not signed by the applicant. The language of Art. 1.13, supra, plainly requires that the waiver of the right to trial by jury “must be made in person by the defendant in writing . It does not say that the waiver is sufficient if it be reduced to writing. It says made in writing. A printed form becomes a writing made by the defendant only when he places his signature on it and by that act adopts the writing as his own. This act not having been performed in this applicant’s case, as evidenced by the forms in the record before us, there was no effective waiver of the right to trial by jury in compliance with Art. 1.13, and, under the express mandate of Art. 1.15, no felony conviction could have been lawfully entered. We conclude that applicant Felton is entitled to the relief he seeks, and accordingly his conviction in Cause No. 1251 in the 71st Judicial District Court of Harrison County is set aside. He shall be discharged from further custody under that conviction and shall be remanded to the custody of the sheriff of Harrison County to answer the indictment pending against him in that cause. A copy of this opinion shall be sent to the Texas Department of Corrections.

It is so ordered.

DALLY, Judge,

dissenting.

A defendant may agree to waive a jury trial in writing in open court without signing that agreement. Neither Art. 1.13 nor 1.15, V.A.C.C.P. (1965) requires that a defendant sign the agreement he has made in writing in open court. These articles merely require that the agreement be in writing. The majority without reason have added the requirement that a defendant must sign the agreement.

The petitioner was charged with the offense of murder with malice in Cause Nos. 1250 and 1251 in the 71st District Court of Harrison County. On May 30, 1973, petitioner entered pleas of guilty to both offenses. After finding petitioner guilty the court assessed punishment of imprisonment for twenty years in each case and ordered that the sentence in Cause No. 1251 be cumulated with that in Cause No. 1250.

The petitioner asserts that the judgment and sentence imposed in Cause No. 1251 are void since the record affirmatively reflects that a Waiver of Trial by Jury form was not signed by him. The appellant alleges that his signature does appear following the Waiver of Jury Trial form used in Cause No. 1250 and he seeks no relief in that cause.

Art. 1.13, V.A.C.C.P. (1965) provides:

“The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him.”

The form used when the appellant entered his plea of guilty in Cause No. 1251 is here reproduced.

IN THE 71ST DISTRICT COURT OF HARRISON COUNTY, TEXAS

THE STATE OF TEXAS VS. James Earl Felton_

No. 1251

May__ 1973

WAIVER OF JURY TRIAL

COMES NOW THE DEFENDANT, in the above styled and numbered cause in open court and before having pleaded to the indictment herein, announces that Defendant will plead guilty to said charge and hereby requests the consent and approval of the court and of the attorney for the State that Defendant may waive the right to trial by jury herein, and does hereby upon the consent of the court and State’s attorney waive trial by jury.

DEFENDANT /s/ Charles A. Allen

ATTORNEY FOR DEFENDANT

AGREEMENT TO STIPULATE TESTIMONY

Said Defendant, Defendant’s counsel, and the State’s attorney do hereby enter into an agreement that the Defendant waives the appearance, confrontation, and cross-examination of witnesses in the above entitled and numbered cause and agrees that the testimony of said witnesses may be stipulated into the record by the State’s attorney, such testimony being the same as the witnesses would give if they were present in court and testifying under oath and the Defendant further consents to the introduction of testimony by affidavit, written statements of witnesses, and all other documentary evidence that may be introduced by the State.

/s/ James Earl Felton_ DEFENDANT

/s/ Charles A. Allen_ ATTORNEY FOR DEFENDANT

APPROVAL OF DISTRICT ATTORNEY

Before the said Defendant enters his plea herein, each of the above requests of the said Defendant are hereby consented to, and approved by me, the attorney representing the State herein.

/s/ Sam Baxter_ ASSISTANT — CRIMINAL DISTRICT ATTORNEY

CONSENT OF COURT

The above and foregoing applications of the Defendant herein having been duly considered by the court and it appearing to the court that the Defendant is herein charged with a felony, that the Defendant is represented by counsel, and that attorney representing the State herein has given the consent and approval to same, therefore consent and approval of the court is hereby given thereto.

/s/ John Furrh_ JUDGE PRESIDING

Art. 1.13, V.A.C.C.P. simply does not require that the appellant sign the agreement in writing; this is in contrast with the requirement of Art. 1.13 V.A.C.C.P. that the consent and approval of the attorney representing the State shall be in writing, signed by him.

When a defendant waives a trial by jury, all that is required by Art. 1.13, V.A.C.C.P. is that the agreement be made in open court in writing. The agreement was made in open court and reduced to writing in this case.

The form was signed in the blank provided in Cause No. 1250; that it was not signed in Cause No. 1251 does not mean that the petitioner did not agree to waive a jury in open court and it does not contradict the judgment entered which reads in pertinent part:

“. . . and it appearing to the Court that the Defendant, his counsel, and the State’s attorney have agreed in writing, in open court to waive a jury in the trial of this cause and to submit this cause to the Court; and the Court having consented to the waiver of a jury herein, the indictment was read, and the Defendant entered his plea of guilty thereto . . .”

See and compare Martinez v. State, 555 S.W.2d 462 (Tex.Cr.App.1977) and Ex parte Smith, 449 S.W.2d 266 (Tex.Cr.App.1969). The relief sought in this collateral procéed-ing should be denied. I dissent.

DOUGLAS and TOM G. DAVIS, JJ., join this dissent.


author: PHILLIPS, Judge.

text:
    Irene PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 58111.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 14, 1979.
    Rehearing En Banc Denied Dec. 19, 1979.

      J. G. Hornberger and J. G. Hornberger, Jr., Laredo, for appellant.
    Charles R. Borchers, Dist. Atty., Laredo, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for tampering with governmental records. V.T.C.A. Penal Code, Section 37.10. Punishment was assessed at imprisonment for five years, probated, and a $5,000 fine.

Appellant challenges the sufficiency of the evidence to support the conviction and raises various complaints concerning the examining trial, the Grand Jury proceedings, the denial of pretrial motions, the exclusion of evidence at trial, and the court’s charge to the jury. Appellant also complains of the court’s denial of her motion for new trial and motion in arrest of judgment.

Appellant was convicted of impairing the availability of governmental records, namely automobile transfer tax receipts, by withholding such receipts, with the intent to harm the State of Texas. See Section 37.10(a) and (c) of the Penal Code. Appellant contends she was entitled to a directed verdict of acquittal.

At the time of the offense appellant worked for the Webb County Tax Assessor-Collector’s Office in Laredo, registering cars and collecting the 4 percent State sales tax that is levied on automobile transfers. Appellant’s job was to collect the payment and issue receipts to the transferring parties, and at the end of the day to turn in the money collected and additional copies of the receipts to the cashier. One of the copies was retained by the Tax Assessor-Collector’s Office, one was sent to the State Highway Department, and one was sent to the State Comptroller’s Office. The receipts for the Comptroller’s Office were filed in the county office for one month, then were sent, along with 95 percent of the sales tax amount represented by the receipts, to the Comptroller’s Office in Austin. Five percent of the tax was retained by Webb County. Appellant was convicted of withholding the Comptroller’s copy of the receipt that had been issued to Arthur Ochoa on August 24, 1976.

Tom Gay testified that in January 1977, pursuant to his authority as a Field Auditor for the Comptroller’s Office, he audited the Webb County Tax Assessor-Collector’s Office. As a result of the audit Gay determined that some 2,395 Comptroller receipts of an estimated value of $250,000 had not been turned in to the Comptroller’s Office as required. Gay could not locate the receipts in the Tax Assessor-Collector’s Office. Gay asked appellant if she had any of the receipts, and appellant gave Gay 80-100 receipts worth approximately $3,900. Appellant told Gay that those receipts were all she had. Appellant’s brother wrote Gay a check for $3,900 to cover the amount represented by the receipts.

Upon deeper investigation further receipts turned up, including a batch of 590 receipts that appellant returned through her attorney. Ochoa’s receipt was part of this batch. Only a small part of the money represented by the receipts was recovered by the State. Most of the receipts were identified as having been issued by or under authority of appellant by the presence of the initials “IP” on the face of the receipts. The Ochoa receipt was so initialed.

Appellant testified that shortages began appearing in the Tax Assessor-Collector’s Office in 1969 or 1970. These shortages took the form of appellant and others who worked at the windows not having enough money at the end of the day to cover the amount represented by the receipts. According to appellant the receipts could not be turned in unless the payment equaled the amount of the receipts. When the money came out short, appellant would turn in only enough receipts to equal the money she had and would retain the rest of the receipts. This went on for a period of years. Appellant testified that she kept the receipts in envelope boxes at her desk and in a small closet next to her desk.

Appellant admitted that she withheld the Ochoa receipt on August 24,1976, the day it was issued, and further admitted that she had not turned the receipt in by September 10, 1976, when that receipt and the others that had been issued in August were due at the Comptroller’s Office in Austin. The evidence showed that, although she retained the Ochoa receipt, she turned in the check that had accompanied that receipt, presumably to cover other receipts. Appellant knew that these receipts were due in Austin by September 10th. Appellant testified that on January 19, 1977, she delivered to Gay over 1,000 delinquent receipts. She delivered a check for over $10,000 along with these receipts. Later in the month she delivered the batch of receipts that included the Ochoa receipt.

Ron Hamilton, Regional Supervisor for the State Department of Highways and Public Transportation, testified that in May 1974 he conducted an audit of the Webb County Tax Assessor-Collector's Office and found that 24 receipts were missing, at an estimated value to the State of $13,248. He discussed the matter with appellant; she went home and returned with the receipts. She wrote out a personal check of over $3,000 to help cover the amount of the receipts.

Both Hamilton and Gay testified that receipts due from Webb County to their respective offices were often months late. Gay also testified in rebuttal to appellant’s testimony that when he conducted his audit he did not find any of the delinquent receipts, even though he looked in and around her desk and in the closet near her desk.

The evidence showed that it was one of appellant’s duties to turn in the tax receipts at the end of the day. The evidence showed that appellant intentionally failed to turn in the Ochoa receipt until months after it was due, even though she turned in the payment that had accompanied that receipt. Clearly her action impaired the availability of that governmental record. Her intent to harm the State is evidenced by her continuing action of withholding thousands of dollars worth of similar receipts, her actions in paying for the receipts with checks written on her personal account, and upon being discovered, her telling Gay that the 80-100 receipts she gave him were all the receipts she had. Gay’s testimony that the receipts were not in the office also indicates that appellant either took the delinquent receipts she had in her possession from the office, or hid them somewhere in the office. Appellant knew that the receipts were to go to the Comptroller’s Office each month. Appellant turned in over 1,500 delinquent receipts in three large batches when the audit uncovered that the receipts were missing. Appellant’s behavior is simply not consistent with innocent or unintentional action. We find the evidence sufficient to sustain the conviction; a directed verdict of acquittal was not in order.

In a series of related grounds of error appellant complains of the court’s refusal to require that the Grand Jury proceedings be recorded, its refusal to permit her to inspect the minutes of the Grand Jury, and its refusal to pierce the secrecy of the Grand Jury and set aside the indictment on the ground that the District Attorney was present during the Grand Jury’s deliberations.

As appellant concedes, there is no requirement, statutory or otherwise, that Grand Jury testimony be recorded and transcribed. See Tibbetts v. State, 494 S.W.2d 552 (Tex.Cr.App.1973); Acuff v. State, 433 S.W.2d 902 (Tex.Cr.App.1968). In its order denying appellant’s motion to inspect the minutes of the Grand Jury, the court noted that, as was the custom in the 49th District Court, no minutes were taken or recorded. The District Attorney also testified at a pretrial conference that no minutes were taken. Moreover, appellant did not make a showing of a particularized need for the minutes of the Grand Jury. Tibbetts v. State, supra; Terry v. State, 489 S.W.2d 879 (Tex.Cr.App.1973).

Appellant also'filed a motion to pierce the secrecy of the Grand Jury proceedings and a motion to set aside the indictment, alleging that the District Attorney had been present during the Grand Jury’s deliberations. Both motions were denied. Appellant filed no affidavits that supported these allegations, and her motions are mainly based on speculation and beliefs of defense counsel as to what might have been going on in the Grand Jury room. Appellant presented no evidence to support the allegations. The court properly denied these motions. See Tibbetts v. State, supra; Terry v. State, supra. Appellant’s contentions regarding the Grand Jury proceedings are overruled.

Appellant contends that the indictment should be set aside because she was denied the right to call witnesses at the examining trial. At the examining trial the State presented the testimony of Texas Ranger Ramiro Martinez. The court ruled Martinez’s testimony sufficient to establish probable cause to bind appellant over to the Grand Jury. Appellant then called Cruz Cabello and Francisco Flores, the Webb County Tax Assessor and Collector, to testify. Neither witness testified to any matter that put the previous determination of probable cause into question. When it became apparent that appellant’s witnesses had nothing material to offer, the court cut off Flores’s testimony. Appellant objected to that action and to the court’s refusal to call further witnesses to enable her to attack the existence of probable cause. The court did not err because sufficient evidence to justify holding appellant under bond had already been presented by the State and appellant’s witnesses were offering nothing to rebut such probable cause. Moreover, the refusal to allow appellant to call further witnesses at the examining trial provides no basis to set aside the indictment. As this Court has previously noted, the return of a true bill of indictment independently satisfies the principal purpose and justification of the examining trial — to show that there is probable cause to believe the accused committed the offense charged. See Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Harris v. State, 457 S.W.2d 903 (Tex.Cr.App.1970). No error is shown.

Appellant contends that the indictment should have been set aside because the trial court did not have jurisdiction over the cause at the time the indictment issued. Two days after the examining trial appellant filed a petition for a writ of mandamus in the 111th District Court of Webb County, requesting that the judge who had presided at the examining trial be ordered to hold another examining trial. The 111th District Court, traditionally a civil court, refused to take jurisdiction. Appellant then applied to the same court for a temporary injunction against the Webb County District Attorney enjoining him from taking appellant’s case before the Grand Jury prior to appellant’s receiving another examining trial. Again the 111th District Court refused to take jurisdiction. Appellant then filed a petition for a temporary injunction in the Court of Civil Appeals in San Antonio. Her petition was denied. The courts to which appellant applied for relief never took jurisdiction of the matter; the trial court was never deprived of jurisdiction nor was the State prohibited from properly pursuing an indictment. Appellant’s contention is without merit.

Appellant contends that the court improperly denied her motion for discovery of exculpatory evidence and motion to compel the District Attorney to comply with the court’s discovery order. Appellant filed numerous motions relating to discovery of various items, and on appeal she does not specify which action of the court she considers erroneous. The record reflects that the trial court granted appellant’s motions for discovery of exculpatory and documentary evidence and ordered the District Attorney to supply appellant with all exculpatory and documentary evidence material to appellant’s prosecution. Appellant does not specify what material, if any, was withheld or to which she was denied access; nor does appellant allege or show any harm. Appellant nowhere shows that the unspecified matter of which she complains was material to her defense or that such matter was in the possession of the State. See Bell v. State, 442 S.W.2d 716 (Tex.Cr.App.1969). This ground of error is without merit.

Appellant next contends that the court erred when it quashed the subpoenas duces tecum of then Attorney General John Hill and State Comptroller Bob Bullock. Both officials filed affidavits stating that they did not have personal knowledge of facts material to the case. Both acknowledged in the affidavits that they had possession of certain documents demanded in the subpoenas and stated that they would make those documents available to the defense. Upon demand by the court at the hearing on the motions to quash, appellant was unable to show what Hill and Bullock would testify to that would be material to her defense. See Jones v. State, 501 S.W.2d 677 (Tex.Cr.App.1973); Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974). The affidavit that accompanied appellant’s motion to quash does not show that Hill or Bullock knew anything that was material to appellant’s defense, nor does appellant allege anything in her brief on appeal to show that the two men would have been material witnesses. The court did not err in refusing to require Hill and Bullock to personally appear as witnesses at appellant’s trial.

Appellant called Ron Hamilton as a defense witness. On cross-examination of Hamilton the State elicited testimony harmful to the defense. Appellant’s counsel then attempted to impeach Hamilton, claiming he had become a hostile witness. The court refused to allow appellant to impeach Hamilton. Appellant contends this was error. Appellant never laid a predicate for impeaching Hamilton — she did not claim surprise, and she did not demonstrate surprise by showing outside the presence of the jury that the witness had made prior statements inconsistent with his trial testimony. See Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975); Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974). Absent such a predicate, appellant was not entitled to impeach Hamilton. This contention is overruled.

Appellant offered into evidence an indictment pending against her in a related cause, in a further effort to impeach Hamilton’s testimony. As pointed out above, appellant did not establish a predicate for impeaching Hamilton. Moreover, the indictment had extremely limited probative value, if any at all, when offered for purposes of impeachment. The court properly excluded the indictment from evidence.

Appellant complains of the court’s refusal to allow her to elicit from Gay that Francisco Flores and Arturo Villareal, the supervisor of the Tax Assessor-Collector’s Office, told Gay during his audit that they had known about the receipt shortages for several years. Appellant urges that such statements were admissible as declarations against penal interest on the part of Flores and Villareal. These statements were contrary to Flores and Villareal’s penal interest in that they tended to make the two men parties to the offense in this case. It is well established, however, that declarations of a third party admitting guilt of the offense for which the defendant is on trial are admissible only when, among other things, the guilt of the third party is inconsistent with the defendant’s guilt. Ramirez v. State, 543 S.W.2d 631 (Tex.Cr.App.1976); Cameron v. State, 153 Tex.Cr.R. 29, 217 S.W.2d 23 (Tex.Cr.App.1949). Such is not the case here. This contention is overruled.

Appellant urges that the court erred when it instructed the jury that evidence of extraneous offenses consisting of appellant’s withholding tax receipts other than the Ochoa receipt were to be considered only for the purpose of showing appellant’s system, intent, arid design. It is appellant’s position that the charge should have limited the jury’s consideration solely to appellant’s intent. We disagree. The extraneous offenses also tended to show a continuous course of action by appellant, amounting to system and design on her part. Extraneous offenses are admissible to show system and design as well as intent. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). No error is shown.

Appellant complains of the exclusion from evidence of the monthly reports that went to the Comptroller’s Office in the years 1973, 1974, and 1975; she also complains of the exclusion of the subpoena issued for Allen Beeson, the State Auditor for Webb County. The gist of appellant’s complaint in both grounds is that those documents show that county and State officials knew receipts were being withheld at the Webb County Tax Assessor-Collector’s Office. The alleged knowledge of county and State officials that receipts were being withheld does not tend to prove appellant’s innocence and is not relevant to any other issue at trial. Any probative value would have been outweighed by the confusion the evidence would have caused the jury. The court did not abuse its discretion in ruling this evidence inadmissible. See Albrecht v. State, supra; Hernandez v. State, 484 S.W.2d 754 (Tex.Cr.App.1972).

Appellant complains of the court’s refusal to instruct the jury on the law of circumstantial evidence. Appellant’s own testimony showed that she withheld the Ochoa receipt. When a defendant admits committing the act and only intent is at issue, no charge on circumstantial evidence is required. Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976). Appellant complains of the court’s refusal of various other of her requested instructions. Our review of the record shows that the requested instructions were covered by the main charge, see Bridges v. State, 422 S.W.2d 449 (Tex.Cr.App.1967), or constituted misstatements of the law or comments on the weight of the evidence. No error is shown.

Appellant filed a motion for new trial in which she alleged that the State fraudulently prevented certain witnesses from attending the trial. She complains of the court’s denial of her motion. The record does not reflect that a hearing on appellant’s motion for new trial was held. Appellant attached no affidavits to support her motion for new trial. In the absence of any evidence to support the allegátions, the court did not err in denying appellant’s motion for new trial. Pinson v. State, 530 S.W.2d 946 (Tex.Cr.App.1975); Rios v. State, 510 S.W.2d 326 (Tex.Cr.App.1974). Moreover, appellant filed no motion for continuance to obtain more time to secure the presence of the witnesses. See Robinson v. State, 453 S.W.2d 836 (Tex.Cr.App.1970); Young v. State, 374 S.W.2d 891 (Tex.Cr.App.1964). No error is shown.

Finally, appellant contends that the court should have granted her motion in arrest of judgment. Appellant alleges that the indictment was vague and indefinite in that it failed to allege from whom the Ochoa receipt was withheld. The motion was timely filed. The indictment alleged that appellant “intentionally impaired], by withholding, the availability of a governmental record of the tenor following: [a photostatic copy of the Ochoa receipt is then attached] with intent to harm another, namely, the State of Texas.” In order to state the offense it was not necessary to allege from whom the receipt was withheld. In any event the receipt on its face showed that it was to be sent to the Comptroller’s Office; that constituted sufficient notice that the receipt was withheld from the Comptroller’s Office. We note that no motion to quash the indictment was filed; if appellant did not have sufficient notice of what she was charged with, she should have filed such a motion rather than waiting until the trial was completed and then filing a motion in arrest of judgment. Error, if any, is waived. See Reed v. State, 373 S.W.2d 687 (Tex.Cr.App.1963); Benson v. State, 93 Tex.Cr.R. 308, 247 S.W. 510 (Tex.Cr.App.1923).

The judgment is affirmed.