text:
    James P. WRIGHT, Appellant, v. CLIMATIC AIR SALES, INC., Appellee.
    No. 16516.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 11, 1975.

      W. G. Smith, Houston, for appellant.
    Talbert, Giessel & Stone, James H. Barker, Houston, for appellee; Alice Giessel, Houston, of counsel.
   COLEMAN, Chief Justice.

This is an appeal from an order sustaining the defendant’s plea of privilege. No findings of fact or conclusions of law were requested or filed. We affirm.

The plaintiff is an employee of an automobile dealer. While certain of his fellow employees were engaged in installing an air conditioning unit purchased from the defendant in an automobile, the plaintiff approached them to inquire as to the length of time before the automobile would be ready for delivery. Before the air conditioner could be installed in the car, it was necessary that the standard radiator hose be lengthened. The defendant furnished to the purchaser of the air conditioner an installation kit which included a piece of straight metal tubing, a length of hose, and two clamps. By use of these materials a piece of radiator hose was attached to the hose with which the automobile was equipped. While the plaintiff was standing near the upraised hood of the automobile the metal tubing slipped out of the hose and plaintiff was sprayed with boiling water resulting in severe bodily injuries.

Plaintiff filed suit in Harris County based on strict tort liability alleging that the automobile air conditioning unit manufactured by the defendant, Climatic Air Sales, Inc., was defective and/or unreasonably dangerous in design and that Climatic failed to warn or notify plaintiff of such defect or dangerous design. Climatic filed a plea of privilege requesting that the cause be removed to Dallas County, the county of its residence. In his controverting affidavit plaintiff asserted that venue was proper in Harris County under Subdivisions 23 and 9a of Vernon’s Annotated Texas Statutes Article 1995.

To sustain venue under Subdivision 23, supra, it was the burden of the plaintiff to plead and prove facts showing that a cause of action arose in his favor against Climatic, and that either a part of the cause of action arose in Harris County, or that Climatic had an agent or representative in Harris County. Employers Casualty Co. v. Clark, 491 S.W.2d 661 (Tex.1973).

To establish a cause of action in strict tort liability plaintiff was required to produce evidence that the defendant sold the product in a defective condition unreasonably dangerous to the user or consumer, that the product reached the plaintiff without substantial change, and that the condition of the product was the producing cause of the injury to the plaintiff. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); John Deere Co. v. Ramirez, 503 S.W.2d 382 (Tex.Civ.App.—Amarillo, 1973, writ dism’d).

For the purpose of this opinion we will assume that the metal tubing furnished with the installation kit constitutes a part of the air conditioning unit. There is no expert testimony that the method suggested for installing the air conditioning unit was unreasonably dangerous or that it would result in a defective product. There was no testimony that the materials furnished were defective. The plaintiff testified that the hose parted at the point where his fellow employees had joined the two pieces of radiator hose with the metal tubing held in place by the two clamps. He gave his opinion that the tubing had not seated because it hadn’t gotten hot enough for the hose to get sticky so that the clamp could hold it. The only evidence of a defective design is that the hose slipped off of the piece of metal tubing. There is no testimony as to whether the clamps were properly tightened or as to the temperature necessary to cause the rubber hoses to become sticky. There is no evidence of standards in the industry or that better designs are known to the trade.

While we might speculate as to methods by which a connection of the two pieces of hose could have been made with safety, there is no testimony in the record to support such speculation. There is evidence from which we might reason that the water circulating through the hose was under pressure; however, this circumstance and its effect were not developed in the testimony. The evidence does not establish that this hose connection, and all hose connections of the same design, were unreasonably dangerous for use in connection with the installation of an air conditioning unit in the automobile. Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974). The plaintiff did not establish a cause of action. The trial court did not err in failing to sustain venue in Harris County, Texas, under the provisions of Exception 23 of Article 1995, V.A.T.S.

The plaintiff also contends that the trial court erred in failing to sustain venue in Harris County under the provisions of Subdivision 9a of Article 1995, Y.A. T.S. Under this section the plaintiff had the burden of showing that an act or omission of negligence on the part of the defendant occurred in the county where the suit was filed. A suit based on the theory that negligent acts in one county caused damage in another county may not be tried in the county where damage resulted if that county is not the county of residence of the defendant. Leonard v. Abbott, 366 S.W.2d 925 (Tex.1963).

In his original petition the plaintiff did not plead specific acts of negligence which were proximate causes of his injuries, nor did he plead negligence generally. There is no evidence of any negligent act on the part of the defendant which occurred in Harris County, Texas.

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold KUNZ, Jr., et al., Relator, v. Hon. Franklin S. SPEARS et al., Respondents.
    No. 15518.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 17, 1975.

      Alfred W. Offer, San Antonio, for relator.
    Foster, Lewis, Langley, Gardner & Ba-nack, San Antonio, for respondents.
   PER CURIAM.

This is an original proceeding wherein relators, Harold Kunz, Jr. and Kunz Construction Company, seek a writ of prohibition to prevent respondents, Hon. Franklin S. Spears, Judge of the 57th Judicial District Court of Bexar County, and H. Glenn Huddleston, from executing or seeking to enforce the judgment entered in Cause No. 74CI-3223.

On May 20, 1975, Judge Spears, as judge presiding, signed a judgment in Cause No. 74CI-3223 pending in the 57th Judicial District Court, which suit grew out of a dispute between partners as to the financing, development and disposition of partnership property consisting in part of cash, bank accounts, notes and real estate. Relators’ amended motion for new trial was overruled on July 15, 1975, by Judge Spears. On July 23, 1975, the Hon. James C. Onion, Judge of the 73rd Judicial District Court of Bexar County, as judge presiding, entered an order in this cause fixing the amount of the supersedeas bond at the sum of $15,-000.00 pursuant to Rule 364(c).

On July 23, 1975, the District Clerk of Bexar County approved and filed relators’ supersedeas bond in this amount. Thereafter, respondent Huddleston filed a motion in the 57th District Court to increase the amount of said supersedeas bond. On August 15, 1975, Judge Spears entered an order which revoked the supersedeas bond filed by relators in the amount of $15,000.00 and ordered relators to file a new bond in the amount of $60,000.00 within twenty days or the judgment would be subject to execution. On September 2, 1975, we granted relators leave to file this original proceeding.

The matter of supersedeas is covered by Rules 364-368. Although he did not preside over the trial of the case, Judge Onion was authorized under Rule 330(h) to set the amount of supersedeas bond in the capacity as “judge presiding” in the 57th District Court of Bexar County. See also, Article 199, Tex.Rev.Civ.Stat.Ann. (1969). This bond, when approved by the District Clerk, superseded the judgment. Ex parte Wrather, 139 Tex. 47, 161 S.W.2d 774 (1942).

The power to require an additional bond where the initial supersedeas bond is insufficient is vested in the appellate court under the express provisions of Rule 365. This rule provides in part: “The sufficiency of a cost or supersedeas bond shall be reviewable by the appellate court and said court may require additional bond or security in case of the insufficiency of the amount of said bond or the sureties thereon, . .” (emphasis ours) See also Schrader v. Garcia, 512 S.W.2d 830 (Tex.Civ.App.—Corpus Christi 1974, no writ); Polk v. Holland Texas Hypotheek Bank, 66 S.W.2d 1112 (Tex.Civ.App.—Beaumont 1933, no writ).

We therefore conclude that Judge Spears did not have jurisdiction to set aside the original supersedeas bond which had been approved and filed. Respondents are hereby prohibited from proceeding with the execution or entry of orders in-Cause No. 74CI-3223, in the 57th Judicial District Court of Bexar County pending the further order of this Court.

We have no doubt that respondents will abide by this opinion and our judgment herein entered, and, for that reason, the clerk is directed not to issue a formal writ of prohibition.

The writ of prohibition is conditionally granted.

      . All references to rules are to Tex.R.Civ.P. (1967).


author: CADENA, Justice.

text:
    Woodrow BANKS, Sr., Appellant, v. Martin SADA, Appellee.
    No. 15413.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 17, 1975.
    Hope, Henderson, Hohman & Georges, George A. Scharmen, II, San Antonio, for appellant.
    Martin Sada, San Antonio, for appellee.
   CADENA, Justice.

By this appeal, plaintiff, Woodrow Banks, Sr., seeks to have set aside an order of Hon. Franklin Spears, district judge of Bexar County, granting, nunc pro tunc, a new trial in a case in which plaintiff had recovered a default judgment against defendant, Martin Sada. We dismiss the appeal.

The default judgment was rendered on March 14,1973. Defendant filed his motion for new trial on March 23, 1973, and on March 26 the court entered an order setting the motion for hearing on April 6,1973. On May 7, 1973, another order was entered setting the hearing on the motion for new trial on May 16, 1973.

On December 28, 1973, defendant filed a petition for bill of review seeking to set aside the judgment against him and on that date the court granted a temporary restraining order against the sale of defendant’s home in satisfaction of the default judgment. On June 8,1974, summary judgment was entered denying defendant relief in the bill of review proceedings.

On November 13, 1974, defendant filed a motion urging the court to enter, nunc pro tunc, an order granting his motion for new trial. After plaintiff had filed an answer to such motion, a hearing was held and on November 27, 1974, the court entered an order reciting that on April 6, 1973, the court orally granted defendant’s motion for new trial but, although such action was noted in the court’s docket, no written order reflecting such action was ever signed or entered. This nunc pro tunc order granted defendant’s motion for new trial.

On December 9, 1974, plaintiff filed a motion to set aside the nunc pro tunc order of November 27,1974, granting defendant a new trial. This motion was overruled on December 23, 1974, whereupon plaintiff gave notice of appeal and timely took all steps necessary to perfect an appeal to this Court.

Plaintiff recognizes the well established rule that an order granting a new trial, being interlocutory in nature, is not reviewable by appeal. However, he insists that in this case the order granting defendant’s motion for new trial nunc pro tunc, entered more than eight months after rendition of the judgment against defendant, is void since, on its face, it reflects that it was entered after the trial court had lost jurisdiction over such judgment.

The fact that an order purporting to grant a new trial is entered after the trial court has lost control over the judgment which the challenged order sets aside does not make the order reviewable by appeal. The question of whether an order is a final order in the sense in which “final” is used in determining the existence of appellate jurisdiction does not depend on the validity or voidness of the order. Stated differently, an interlocutory order is not transmuted into a final order because it is void. The order, void or otherwise, remains interlocutory and, therefore, in the absence of a statute permitting review by appeal of interlocutory orders of that nature, is not subject to appellate review. Tindall v. Rhodes, 493 S.W.2d 733 (Tex.1973); Lynn v. Hanna, 116 Tex. 652, 296 S.W.2d 280 (1927).

The appeal is dismissed.

BARROW, C. J., not participating.


author: BARROW, Chief Justice.

text:
    TOWN & COUNTRY MOBILE HOMES, INC., Appellant, v. John David BENFER et ux., Appellees.
    No. 15416.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 17, 1975.

      Joe E. Shaddock, Wichita Falls, for appellant.
    Carter, Callender & Gonzalez, Marvin B. Zimmerman, Pete Kyle, Jr., Oscar Gonzalez, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellant, a Texas Corporation, has perfected its appeal from an order overruling its plea of privilege in the suit filed by appellees against appellant and Jerry Thomas, a resident of Bexar County, to recover damages for an alleged breach of warranty or fraudulent misrepresentation concerning a mobile home purchased by ap-pellees.

Appellant is a resident of Wichita County. Appellees controverted the plea of privilege and asserted that venue can be maintained in Bexar County against appellant, the manufacturer of the mobile home, under Tex.Rev.Civ.Stat.Ann. art. 1995, Subdivisions 4, 7, 29a (1964), and Subdivision 31 (Supp.1975). The trial court overruled the plea of privilege after a non-jury hearing. There are no findings of fact or conclusions of law to indicate the basis for the court’s action; however, the appellees urge an af-firmance under the exception provided by Subdivision 4. While we are not restricted to this exception, it will be considered at the outset.

.The venue facts under Subdivision 4 are: (I) one defendant resides in the county of suit; (II) the party asserting his privilege is at least a proper party to the claim against the resident defendant; and (III) the plaintiff has a bona fide claim against the resident defendant. 1 McDonald, Texas Civil Practice, Section 4.10.2-{II) (1965 rev.); Cage v. Guerra, 511 S.W.2d 397 (Tex.Civ. App.—San Antonio 1974, no writ); Ford Motor Credit Company v. Garcia, 504 S.W.2d 931 (Tex.Civ.App.—San Antonio 1974, no writ).

The undisputed evidence establishes that in September of 1974, appellees purchased a mobile home from Jerry Thomas, a retailer of mobile homes. The deal was consummated at Thomas’ place of business in Bex-ar County. Appellee, John David Benfer, testified that Thomas told him the mobile home manufactured by appellant had a quarter-inch sheathing on the siding which made it better than cheaper units. Benfer was interested in this feature in that his neighbor had a mobile home with plywood underneath it. The mobile home sold to appellees was not on the lot at the time as it was delivered to Thomas by appellant after appellees had agreed to purchase it. However, a model similar to the one purchased by appellees was on the lot and Thomas pointed out to Benfer the grade of plywood sheathing on this model unit. When the mobile home was delivered to appellees, they were given several written warranties signed by appellant, including one which specifically warranted that the mobile home was sheathed with one-fourth inch plywood beneath the pre-finished aluminum exterior wall surface.

Appellees subsequently discovered their mobile home did not contain this sheathing and brought suit for damages for breach of this warranty, or in the alternative, for fraudulent misrepresentation.

This testimony, which was uncontro-verted, made out a cause of action against Thomas for breach of an express warranty under Section 2.313 of the Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968). This section provides in part:

“(a) Express warranties by the seller are created as follows:
(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(3) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.”

Here although the mobile home actually purchased was not on the lot at the time the representation was made, Thomas showed a model to Benfer with the quarter-inch sheathing and represented to Benfer that the unit purchased by appellees also contained such sheathing. This representation was confirmed by the express warranty of appellant which was delivered with the trailer. See: Uniform Commercial Code, Comment, 7, p. 196, Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968); Weintraub, Warranties Under the UCC, 53 Texas L.Rev. 60, 63, and 64 (1974).

These representations constituted an express warranty under Section 2.313(a)(1) and (3). Bowen v. Young, 507 S.W.2d 600 (Tex.Civ.App.—El Paso 1974, no writ); Mobile Housing, Inc. v. Stone, 490 S.W.2d 611 (Tex.Civ.App.—Dallas 1973, no writ). The testimony of Benfer that the mobile home purchased by appellees did not contain the sheathing as warranted by Thomas established a cause of action against Thomas, a Bexar County resident, for breach of the warranty. Since appellant was the manufacturer of said mobile home and made a written warranty that it contained such sheathing, appellant is clearly a proper party in the suit for damages for breach of the express warranty.

Venue is maintainable against appellant in Bexar County under Subdivision 4, and the trial court did not err in overruling appellant’s plea of privilege. It is therefore unnecessary to consider the application of the other exceptions urged by appellant.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Burrell JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50136.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Richard J. Petronis and John B. Guinn, Copperas Cove, for appellant.
    Joe Carroll, Dist. Atty., and Troy Hurley, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder under V.T.C.A., Penal Code, Sec. 19.02; the punishment, 99 years.

The record reflecte that on April 23,1974, the deceased, Zola Jones, was at the home of Jeanette Alexander, appellant’s former girlfriend. Appellant testified he went to Alexander’s house to “cut her loose” and “explain to her that we was going to be through”. As appellant approached the house, he could hear Alexander and Jones talking and referring to appellant as a “dummy” and “fool”. Appellant met Alexander outside the house, took her to the front entrance, and pushed her through the doorway into a wall. Appellant then saw Jones rise from the couch and approach him. Appellant pulled a gun from his pocket and fired three times. Two of the shots struck Jones in the chest, killing him. The third shot wounded Alexander in the arm.

Appellant’s first ground of error complains of the prosecutor’s remarks during the punishment stage of trial. The comment complained of is as follows:

“[PROSECUTOR]: Ladies and Gentlemen, I must apologize to you for my fellow member of the bar [appellant’s trial attorney’s name]. This is the first time in my career in law that I have ever seen a lawyer get up and tell a jury, respectfully or not, that they were wrong in their verdict. What—
[DEFENSE ATTORNEY]: Your Honor, we’re going to object.
⅛ $ * $ ⅝: ⅛
THE COURT: I believe that is a correct statement of what he just said when he got up. Did he not?
[DEFENSE ATTORNEY]: No, Your honor.
THE COURT: All right. The jury will remember.”

The comments of the court do not constitute an adverse ruling sufficient to preserve error. Nichols v. State, 504 S.W.2d 462. Even if the error were properly before this Court, the remarks of the prosecutor were not of a sufficiently inflammatory and prejudicial nature to require a reversal under the test set forth in Bray v. State, 478 S.W.2d 89, and reaffirmed in Edmiston v. State, 520 S.W.2d 386. Although the prosecutor’s remarks did not constitute reversible error, personal attacks on defense counsel should always be avoided. Crutcher v. State, 481 S.W.2d 113.

Appellant’s remaining two grounds of error complain of the exclusion of the testimony of a defense expert witness. Appellant asserts that such testimony was essential, first to the development of his theory of self defense and, second, to show his state of mind at the time of the offense.

After the State presented its case, appellant called the witness Wilkerson, who testified that the deceased had told him he knew karate. He also stated that he passed this information along to the appellant and further told him that the deceased’s “hands” were “registered”.

Appellant then offered the testimony of Vincent Costello, who stated that he held a black belt, the highest level of proficiency in his particular field of karate, and had trained in the art of karate for six years. Appellant then posed a hypothetical question to him about whether it was possible for a person the size of the deceased who had knowledge of karate to have rendered a blow after lunging forward from a seated position and, in a matter of seconds thereafter, to have disabled his adversary and killed him. At this point, the jury was withdrawn, and the witness answered the question affirmatively. The trial court then, upon motion from the State, rejected Costello’s testimony entirely and, upon the jury’s return to the courtroom, instructed them not to consider it for any purpose.

At the time the State’s objection was made and sustained, appellant had not testified. There was no evidence that appellant knew anything about karate except that he had been told deceased knew something of it. Costello’s testimony did not become relevant or admissible until the appellant developed that he knew about karate and understood how it was used and that he was in fear of the deceased because of deceased’s knowledge of this art. Appellant did later testify to the above, at which time Costello’s testimony may have become relevant. However, appellant made no further effort to present this expert testimony after appellant had testified.

A similar situation occurred in Rawls v. State, 127 Tex.Cr.R. 479, 76 S.W.2d 1053, in which this Court held, as we do here, that where the court excluded testimony that was not relevant at the time it was offered, the failure to reoffer the evidence when it did become relevant does not preserve error for consideration.

Finding no reversible error, the judgment is affirmed.


author: ODOM, Judge.

text:
    Terry Don CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 50151.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., James B. Scott and Hugh Lucas, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The offense was robbery by assault; the punishment was imprisonment for life.

On March 2,1973, Richard Amos answered a knock on his front door. When he opened the door, three persons including the appellant forced their way into his house. Amos was loosely tied up downstairs while two of the persons went upstairs and took a coin collection from an upstairs apartment that Amos had rented to a family friend, Hubert Kidder. Appellant remained downstairs with Amos during this time. Amos testified that he never saw a weapon, but that appellant kept his hand in his coat pocket and told Amos that if he cooperated he wouldn’t get hurt. Amos testified that he was placed in fear of physical harm by these events.

Appellant urges seven grounds of error. In the second of these he contends that the evidence is insufficient to prove possession of the property in Richard Amos as alleged in the indictment.

The record reflects that Amos owned the two-story dwelling entered by appellant and his companions. The apartment leased by Kidder had its own door and lock. Amos did not possess the key to this lock, but the door was customarily left unlocked and was unlocked on the day of the robbery. Both Amos and Kidder possessed keys to the front door of the house and both regularly used that common entrance.

A charge of robbery by assault may be supported by evidence of a taking by placing in fear from the possession of the victim. Art. 1408, V.A.P.C. The concept of possession in the robbery statute is broader than that of the theft statutes, Arts. 1410 et seq., V.A.P.C. Barfield v. State, 137 Tex.Cr.R. 256, 129 S.W.2d 310; Goodrum v. State, 172 Tex.Cr.R. 449, 358 S.W.2d 120; Ford v. State, Tex.Cr.App., 502 S.W.2d 160. We have frequently said that any right to possession by the victim superi- or to that of the defendant is sufficient to support a conviction for robbery. West v. State, Tex.Cr.App., 480 S.W.2d 640; Wright v. State, Tex.Cr.App., 468 S.W.2d 422; Goodrum v. State, supra. It is only where the victim of the assault has no right to possession whatsoever that a charge of robbery may not be sustained. Hence, where the taking has been from a store clerk or after an assault upon a watchman, for example, convictions for robbery have been upheld. E. g., Emerson v. State, Tex.Cr. App., 476 S.W.2d 686; Blankenship v. State, 166 Tex.Cr.R. 51, 310 S.W.2d 579; Ibeck v. State, 112 Tex.Cr.R. 288, 16 S.W.2d 232.

Appellant urges that such cases involve entrustment and a duty of care lacking in the instant case. We find the difference one of degree only. Amos and Kidder had never discussed the former’s duty with respect to the latter’s property. But Amos stated that the entire house was under his sole control while Kidder was absent. Kidder said generally that when he left for work he considered Amos to be in charge of his property, but he denied that Amos had any right to reduce to physical possession his coin collection. We find that the latter’s right to possession was superior to that of the appellant. Our conclusion is strengthened by the fact that because there was a common entrance to the dwelling, appellant could not steal Kidder’s money without first disposing of Amos. This conclusion is in accord with our opinion that the robbery statute “seems aimed at the protection of the party robbed rather than the security of the property taken.” Ford v. State, supra; Barfield v. State, supra.

In the instant case, appellant received a jury charge upon the issue of possession. His attorney argued the matter at length before the jury. The jury decided the issue adversely to him. The evidence is sufficient to support the jury’s verdict. Appellant’s second ground of error is overruled.

In his first ground of error, appellant contends that there is a fatal variance between ownership of the money as alleged in the indictment and as proved at trial. The indictment alleged ownership in Richard Amos. From the foregoing facts, it is clear that at trial the true owner of the property was shown to be Hubert Kidder. In view of our disposition of appellant’s second ground of error, this contention is without merit. Art. 21.08, V.A.C.C.P., provides in pertinent part that in any indictment:

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

The evidence was sufficient to sustain the jury’s conclusion that Richard Amos had possession of the property at the time of the robbery. Hence, it was proper to allege ownership in his person and no variance is shown. Ford v. State, supra; Michaels v. State, 120 Tex.Cr.R. 553, 49 S.W.2d 444; Guyon v. State, 89 Tex.Cr.R. 287, 230 S.W. 408. Appellant’s first ground of error is overruled.

Appellant’s remaining grounds of error were raised, discussed, and held to be without merit in appellant’s companion case, Cause No. 50,150, tried jointly with the instant case and this day decided by Per Curiam opinion.

The judgment is affirmed.

ONION, P. J., dissents.

      . We note that this problem cannot arise under the new Penal Code because Sections 29.02 and 31.03 make it clear that a charge of robbery may be made out upon a showing of placing in fear “in the course of committing theft.”


author: ROBERTS, Judge.

text:
    John Lynn MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 50188.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Dist. Atty. and William P. Gibson, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

A jury convicted appellant of delivery of heroin under the Controlled Substances Act, and the court assessed his punishment at ten years.

Appellant’s sole ground of error is that the evidence is insufficient to support the conviction since no illegal controlled substance was introduced at trial. Appellant argues that the substance introduced was never properly identified as heroin.

Ronald Tucker, an undercover narcotics agent for the Department of Public Safety, testified for the State. He stated that on May 4, 1974, the appellant approached him at a drive-in in Killeen and told Tucker that he was selling “skag,” or heroin. The appellant asked Tucker if he knew anyone who might be interested in buying some “skag.” Tucker expressed such an interest himself, and purchased from appellant a purported half gram of heroin for twenty-five dollars.

On May sixth, Tucker took the substance to the D. P. S. laboratory in Waco for testing. There he personally turned it over to Gary Westerman, a qualified chemist working at the laboratory. Westerman testified that he tested the substance on August 14, 1974, using six separate tests to determine if the substance was heroin. On the basis of these tests he concluded that the substance contained four percent heroin. The substance was then admitted without objection.

In Hicks v. State, 508 S.W.2d 400, 402 (Tex.Cr.App.1974), we wrote:

"As a general rule an object offered in evidence should not be rejected because it is not positively identified as the exact object that was connected with the crime.”

See also Salinas v. State, 507 S.W.2d 730, 731 (Tex.Cr.App.1974); Haggerty v. State, 490 S.W.2d 858, 859 (Tex.Cr.App.1973).

Here Westerman positively identified State’s Exhibit Number One as the package he had received from Tucker and tested for heroin. Appellant expressly waived any objections to its admission into evidence. Appellant’s contention is overruled. Salinas v. State, supra; Haggerty v. State, supra.

However, there remains an issue not raised by appellant which we shall consider in the interest of justice. Art. 40.09(13), Vernon’s Ann.C.C.P.

The record reflects that on August 21, 1974, some four weeks before this case was presented to the jury, appellant pleaded guilty to this offense. After admonishing appellant, the trial court accepted appellant’s plea, found him guilty, and assessed his punishment at seven years’ confinement upon the joint recommendation of the assistant district attorney and counsel for appellant. The court’s docket sheet reflects that appellant was allowed to withdraw his plea of guilty and enter a plea of not guilty on September 6, 1974.

The trial before the jury began some ten days later. As noted above, the jurors were excused after the first stage of the trial. At the punishment stage, the State presented the testimony of four Killeen police officers, who testified that appellant’s reputation in the community “for being a peaceable and law-abiding citizen” was bad.

The trial court then assessed appellant’s punishment at ten years. The court based the admitted three year increment in punishment solely upon “the evidence at both phases of the trial,” which, the court stated, was “a little more detailed” than it had been at the hearing on appellant’s guilty plea four weeks earlier.

This is not sufficient to meet the requirements of North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969), which requires that:

“[Wjhenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

The record is absolutely devoid of any “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” It follows that the cause must be remanded for assessment of punishment in accord with the requirements of North Carolina v. Pearce, supra. See Bingham v. State, 523 S.W.2d 948 (Tex.Cr.App.1975); Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), and cases there cited.

The case is remanded for a proper assessment of punishment.

      . Because of our disposition of this case it is not necessary for us to reform the sentence, which incorrectly reflects that the jury assessed punishment.


author: ONION, Presiding Judge.

text:
    Ex parte Eddie J. TRELOAR aka Patrick Herbert.
    No. 50350.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III and Dennis Cain, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in the 184th District Court following a hearing on appellant’s application for a writ of habeas corpus.

This is what we are able to gather from the poorly developed record before us. On May 7, 1975, the habeas corpus application was filed wherein appellant alleged he was illegally confined “by virtue of a certain indictment for fugitive warrant from the State of Mississippi.” He prayed that he be discharged from such confinement or granted bail.

At a hearing on May 9, 1975, the only evidence offered by the State was through the court. The record reflects:

“THE COURT: Mark the applicantion (sic) for the writ State’s Exhibit No. 1, . and the return State’s Exhibit No. 2, and the State offers them into evidence; and they are admitted, and the State rests.
“MR. CAIN (Assistant District Attorney): Yes, thank you.”

The sworn return by the sheriff reflects that appellant is in custody by virtue of “Capias & Indictments & Governor’s Warrant.”

The Governor’s Warrant was not introduced or otherwise identified.

Appellant’s counsel testified bail had been set at $35,000 for capital murder and at $20,000 each in two robbery cases (apparently pending in Harris County).

Appellant testified he escaped from Mississippi authorities after conviction for burglary while his case was on appeal and that he could make bail in the amount of $7,000 if the court would grant him “a bond.”

At the conclusion of the hearing the court denied the relief sought. His written order found the appellant was “legally held in custody.”

There can be no question that if the appellant had not made bonds in the pending cases of capital murder and robbery he would be legally held in custody until such bonds were made.

This, of course, does not answer the question of whether he was legally held by virtue of some charge or conviction from Mississippi or is entitled to bail if he is being held by virtue of such charge.

From this record we are unable to determine what appellant meant by reference in his pleadings to “a certain indictment for fugitive warrant from the State of Mississippi.” The burden of proof, however, was upon the State in this proceeding to show that appellant was legally held upon this charge. The only proof offered was a sworn return which mentions a Governor’s Warrant. Whether this warrant related to the offense or conviction in Mississippi or not is not revealed in this record.

Under the state of the record before us we conclude that the State failed to sustain its burden of proof and the appellant is entitled to be discharged from confinement by virtue of any fugitive charge from Mississippi.

It is so ordered.

      .If the State had introduced a Governor’s Warrant, timely executed, showing the appellant was held by virtue thereof, a different question would have been presented. It is observed that Article 51.13, Sec. 21, Vernon’s Ann.C.C.P., provides in part: “. . . Each warrant issued by the Governor shall expire and be of no force and effect when not executed within one year from the date thereof.” Since it was not established a Governor’s Warrant was issued as a result of any charge or conviction in Mississippi, we do not reach the question of whether he would have been entitled to bail where a Governor’s Warrant has been issued. Further, we do not reach the question of the State’s right to hold the appellant if there is a timely executed Governor’s Warrant in proper form resulting from charges in Mississippi or another State.


author: DOUGLAS, Judge.

text:
    Shirley Ann LEWIS, alias Price, alias Jones, Appellant, v. The STATE of Texas, Appellee.
    No. 50369.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Fred J. Marett, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Jack Bodiford, Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction of robbery by firearms. Appellant pled guilty and sought probation. The court assessed punishment at forty years.

Appellant contends that she was admonished as to the range of punishment under the wrong statute and that the evidence is insufficient to support her plea of guilty.

First we will consider the admonishment. Appellant contends that the trial court erred in admonishing her as to the range of punishment for robbery under Article 1408 of the former penal code. She insists that the admonishment should have been for the range of punishment for aggravated robbery under the present code. There was no election for punishment to be assessed for aggravated robbery.

The offense occurred in October of 1973. The indictment was drawn in the terms of the 1974 penal code alleging aggravated robbery. Does it allege the offense of robbery by firearms for an offense committed prior to the adoption of the present code? If it does, the admonishment is sufficient.

The indictment, omitting the formal parts, alleges:

“ . . . Shirley Ann Lewis alias Price alias Jones hereinafter referred to as the Defendant, heretofore on or about October 6, 1973, did then and there unlawfully while in the course of committing theft of a pistol, owned by James K. Capps, hereafter styled the Complainant, and with intent to obtain and maintain control of the property threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”

The elements of robbery by assault under Article 1408, V.A.P.C. (in effect at the time of the commission of the offense), are (1) fraudulent taking of property from a person or possession of another; (2) by assault, violence, or putting the victim in fear of bodily injury; (3) with intent to appropriate such property to defendant’s own use; and (4) by exhibiting a deadly weapon.

The indictment in the instant case alleges (1) fear of bodily injury and death, and (2) exhibiting a deadly weapon. The indictment substitutes the word “theft” for the statutory language “fraudulent taking of property with intent to appropriate to his own use.” In McClane v. State, 170 Tex. Cr.R. 603, 343 S.W.2d 447 (1960), this Court wrote:

“ . . . It is the rule that where a word not in the statute is substituted in the indictment for one that is, the indictment is sufficient if the word substituted is equivalent to the word used in the statute. 1 Branch’s Ann.P.C. 2d Ed. par. 515, page 496.”

Article 1410, V.A.P.C. (1925 Code), defines theft as follows:

“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.”

Thus, the general term “theft” embraces the specific allegation of “fraudulent taking of property with intent to appropriate.” The use of a general term in an indictment is authorized by Article 21.12, Y.A.C.C.P., which provides:

“When a statute defining any offense uses special or particular terms, indictment on it may use the general term, which, in common language, embraces the special term. . . . ”

We, therefore, conclude that the indictment (though not a model) was sufficient to apprise appellant of the offense with which she was charged. McKenzie v. State, 450 S.W.2d 341 (Tex.Cr.App.1970), 408 U.S. 938, 92 S.Ct. 2868, 33 L.Ed.2d 758, on remand 488 S.W.2d 801; American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Besson v. State, 515 S.W.2d 112 (Tex.Cr.App.1974).

The trial court informed appellant of the punishment provided by Article 1408, V.A.P.C. The statute providing for the penalty for aggravated robbery was not in effect at the time the offense was committed. No error is shown.

Appellant next contends that the evidence is insufficient to support the conviction.

Her stipulated evidence, omitting the formal parts, is as follows:

“On the 6 day of October, 1973, in Harris County, Texas, I did make an assault upon James K. Capps and by such assault and by violence and by putting him in fear of life and bodily injury I did fraudulently and against his will take from his person and possession personal property consisting of a pistol with the intent to deprive him of the value of the same and to appropriate it to my own use and benefit.”

Officer Capps testified that she raised a pistol and fired it at the time in question. The evidence is sufficient.

The judgment and sentence recite that appellant was convicted of aggravated robbery. The effective date of the new penal code was January 1, 1974. Thus, the judgment and sentence should state that the appellant was convicted of robbery by firearms. The judgment and sentence should be and are reformed to show that appellant was convicted for the offense of robbery by firearms.

The conviction, with the judgment and sentence reformed, is affirmed.

      . Jefferson v. State, 519 S.W.2d 649 (Tex.Cr. App.1975).


author:
ONION, Presiding Judge. MORRISON, J.,
      DOUGLAS, Judge ODOM, Judge

text:
    Henry Earl CARTWRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 50413.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Jim D. Vollers, State’s Atty., and David S.McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for driving a motor vehicle upon a public highway while intoxicated. The complaint and information alleged the offense occurred on December 25, 1972. The punishment was assessed by the jury at confinement in the county jail for six (6) months and at a fine of three hundred dollars ($300.00).

The trial was conducted on February 13, 1973, and the appellate record was received by this court on June 2, 1975.

There are no appellate briefs filed by the appellant or by the State. See Article 40.-09, Secs. 9 and 10, Vernon’s Ann.C.C.P. We do, however, find a timely presented bill of exception approved without qualification by the trial judge. In such bill of exception it is established that appellant made a timely request for the trial court to provide a court reporter for the trial proceedings and a motion for continuance on the basis that there was no court reporter present. Both were overruled and denied. Appellant was ordered to trial without a court reporter. Such bill of exception also establishes that there is a serious question as to the sufficiency of the evidence at the trial of appellant’s intoxication to sustain the conviction and that without a record of the testimony the appellant is unable to present the sufficiency issue to this court since the attorneys and the court were unable to agree upon a statement of facts. This fact is supported by a written request of appellant on the date of the sentence for the trial judge to prepare a full and complete statement of facts, which request was denied “due to the complexity and length of trial, the court is unable to recall and give a statement of facts of the cause.” This fact is further supported by the statement of the county attorney at the hearing on the motion for new trial at which a court reporter was present at the appellant’s expense. It should here be noted that there is no evidence or claim of indigency on the part of the appellant.

The question presented by this appeal is whether a judge of a constitutional county court, such as the County Court of Shelby County, is required to appoint a court reporter in a criminal case.

Our research reveals no statute specifically relating to the appointment of a court reporter for the County Court of Shelby County. In Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1968), this court wrote:

“We find no statutory or constitutional provision which requires that the judge of a county court, established under Art. V., Sec. 15, of our Constitution, Vernon’s Ann.St., appoint a court reporter in a criminal case.”

In such opinion the court took note of Article 2821, Vernon’s Ann.C.S., a general statute relating to the appointment of an official court reporter in each district court, as well as Articles 2327 and 2327d, Vernon’s Ann.C.S., the latter statute providing that county court judges “may” appoint a court reporter, and the former statute providing that in a civil case such judge “shall” appoint a competent stenographer if one be present when either party requests or applies therefor.

In the Herbort opinion there was no consideration of the provisions of Article 40.09, Vernon’s Ann.C.C.P., then in effect.

We do find in Article 40.09, Sec. 4, Vernon’s Ann.C.C.P., the following:

“At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments. . . .”

(Emphasis Supplied)

Article 40.09, Sec. 5, Vernon’s Ann.C.C.P., in its final sentence also states:

“The court reporter shall report any portion of the proceedings requested by either party or directed by the court.”

Do such provisions apply to the County Court of Shelby County? Section 1 of Article 40.09, Vernon’s Ann.C.C.P., makes the statute applicable to “all cases appealable by law to the Court of Criminal Appeals.” See also Attorney General’s Opinion H-569 (March 31, 1975). Article V, Sec. 16 of the State Constitution, Vernon’s Ann.St., provides in part:

“The County Court shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the Justices Court as the same is now or may hereafter be prescribed by law, and when the fine to be imposed shall exceed $200.”

See also Article 4.07, Vernon’s Ann.C.C.P.

Article 4.01(5), Vernon’s Ann.C.C.P., also provides that county courts have criminal jurisdiction.

The offense here involved was driving while intoxicated upon a public highway, which is a misdemeanor over which the County Court of Shelby County had jurisdiction. See Article 802, Vernon’s Ann.P.C. Upon conviction, the case was appealable to the Court of Criminal Appeals and appellant exercised this right.

Article V, Sec. 5 of the State Constitution, Vernon’s Ann.St., provides:

“The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.”

The only limitation placed upon such jurisdiction is found in Article 4.03, Vernon’s Ann.C.C.P., which reads:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law shall not exceed one hundred dollars.”

It is clear that cases not appealable to the Court of Criminal Appeals are those criminal actions originating in the justice, city or municipal court where after conviction there is an appeal to the county court and following a trial de novo the fine assessed in county court does not exceed one hundred dollars ($100.00). See, i. e., Leggio v. State, 489 S.W.2d 622 (Tex.Cr.App.1973); Barksdale v. State, 441 S.W.2d 534 (Tex.Cr.App.1969); Bass v. State, 399 S.W.2d 558 (Tex.Cr.App.1966).

This limitation is not applicable to the instant case which originated in the county court itself. It therefore was a case appealable to the Court of Criminal Appeals, and the mandatory provisions of Article 40.09, Secs. 4 and 5, supra, are applicable thereto.

We conclude that under the said provisions of Article 40.09, supra, the Judge of the County Court of Shelby County was required to appoint, when requested to do so, a court reporter to report all trial proceedings in the instant criminal case which was appealable by law to the Court of Criminal Appeals. To the extent that Herbort v. State, supra, is in conflict, it is overruled.

The judgment is reversed and the cause remanded.

MORRISON, J.,

dissents.

DOUGLAS, Judge

(concurring).

I concur in the result reached and only in that part of the opinion which holds that the trial court erred in failing to have a court reporter present to take down the testimony when this case was tried.

ODOM, Judge

(concurring).

I concur in the opinion of the majority, but take exception to the closing assertion in footnote 6 of that opinion. It is true that a statutory requirement, such as that of Article 40.09(4), V.A.C.C.P., relied upon in this case, should be interpreted with uniform consistency. See the dissenting opinions in Jones v. State, Tex.Cr.App., 496 S.W.2d 566. Nevertheless, the meaning of a statute of diverse parts detailing various requirements in different terms, such as Article 26.13, V.A.C.C.P., both before and after amendment by the 64th Legislature, cannot be stated so simply. Had the Legislature intended but a single standard or requirement in such a statute, it would have used uniform language or parallel construction throughout. Instead, by enumerating different standards in different terminology, it obviously intended a difference in the requirements, justifying a difference in interpretation from one part to the next. See my concurring opinion in Cameron v. State, Tex.Cr.App., 508 S.W.2d 618, 619.

      . See and cf. Hilliard v. State, 401 S.W.2d 814 (Tex.Cr.App.1966), where the trial judge in a complex felony case prepared the statement of facts.

      . Article 2327d, supra, provides in part that the judges of the county courts of this State “may appoint an official shorthand reporter for such Court . . . .”

      . Article 2327, supra, provides in part:
      “When either party to a civil case pending in the county court or county court at law applies therefor, the judge thereof shall appoint a competent stenographer, if one be present, to report the oral testimony given in such case. . . ”

      . The opinion noted that no statutory or constitutional provision had been cited by Herbort in his brief to support his contention.

      . Article V, Sec. 22 of the State Constitution, Vernon’s Ann.St., provides the Legislature may by law increase, diminish or change the civil and criminal jurisdiction of county courts. We find no such change regarding the County Court of Shelby County.

      . The Court of Criminal Appeals has made clear that the defendant in a criminal case must make an affirmative request under Article 40.09, supra, for the court reporter to take the record in order to show error on appeal. Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App. 1973); Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973), and cases there cited; Garrett v. State, 434 S.W.2d 142 (Tex.Cr.App. 1968); American Plant Food Corp. v. State, 508 S.W.2d 598, 605 (Tex.Cr.App.1974). Further, the court has repeatedly urged trial judges, even in the absence of a request to do so, to have the court reporter record all proceedings unless the same is waived. Taylor v. Sate, supra (footnote # 1); Jackson v. State, 491 S.W.2d 155 (Tex.Cr.App.1973); Jones v. State, supra (footnote # 1); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971); Brown v. State, 505 S.W.2d 277 (Tex.Cr.App.1974) (footnote # 2).
      It is clear that upon request for a court reporter to take the trial proceedings Article 40.09, Sec. 4, Vernon’s Ann.C.C.P., becomes mandatory. The statement in Taylor v. State, supra, that the statute is not mandatory has been disowned even by the author of the Taylor opinion. See Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973) (Dissenting Opinion on Motion for Rehearing at p. 574).
      It is true that when the request for a court reporter has been made under Article 40.09, supra, to take the voir dire examination as opposed to the trial on the merits this court has concluded the failure to honor such requests was error, but was harmless error unless harm was alleged or shown to have resulted from the refusal to furnish a court reporter. Morris v. State, 441 S.W.2d 730 (Tex.Cr.App.1967); McClain v. State, 432 S.W.2d 73 (Tex.Cr.App.1968); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971); Young v. State, 488 S.W.2d 92 (Tex.Cr.App.1972); Williams v. State, 418 S.W.2d 837 (Tex.Cr.App. 1967); Evans v. State, 430 S.W.2d 502 (Tex.Cr.App.1968); Vines v. State, 479 S.W.2d 322 (Tex.Cr.App.1972); Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973); Alvarado v. State, 508 S.W.2d 74 (Tex.Cr.App.1974).
      In the instant case a reversal is called for under the theory the statute becomes mandatory when the request is made and any refusal to furnish a court reporter is prejudicial or under the theory of the cases cited above since harm is alleged or shown. Since there should be no difference in the test applied merely because the request is to take the voir dire examination rather than the trial on the merits, the above cited cases are overruled as to the extent of any conflict with the opinion herein. .The same portion of a statute should not be divided and given different interpretations. See and compare Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973) (Dissenting Opinion); Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973) (Dissenting Opinion); Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974) (Dissenting Opinion); Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975) (Opinion Concurring in Part and Dissenting in Part).

      . We observe that the Attorney General in his opinion H-569 (March 31, 1975) reached a similar result. We further note a special problem. In those cases originating in a lower court' appealable to the county court for a trial de novo, a request may at the beginning of the trial be made for the appointment of a court reporter to report all trial proceedings. If the request is refused and subsequently the judge or jury assesses punishment in excess of a one hundred dollar ($100.00) fine, the case is then appeala-ble to the Court of Appeals, and Article 40.09, supra, is applicable to the case even though it originated in a justice, city or municipal court. When such a trial commences in a county court, the judge will not know in advance what punishment will be assessed so clearly the better practice is to appoint a court reporter upon request in any case in county court.

      . Although there is no question of indigency in the instant case, there is another compelling reason why county judges should appoint court reporters in criminal cases when requested where the defendant is indigent or may be indigent when the appeal is taken. Article 40.09, Sec. 5, Vernon’s Ann.C.C.P., provides in part:
      “ . . . The court will order the reporter to make such transcription without charge to defendant if the court finds, after hearing in response to affidavit by defendant that he is unable to pay or give security therefore. ...”
      It appears clear that if the defendant, who has given notice of appeal, is found to be indigent, he is entitled to such transcription and need not first resort to alternative methods such as an agreed statement of facts (Article 40.09, Sec. 14, Vernon’s Ann.C.C. P.), etc., unless by choice. See Curry v. State, 488 S.W.2d 100, 103 (Tex.Cr.App.1972). Our statutory procedure is broader than the federal constitutional requirements of due process when the question is presented as to what type of appellate record must be afforded an indigent appellant convicted of a misdemeanor for the purposes of an effective review of his conviction on appeal. By virtue of the provisions of Article 40.09, Vernon’s Ann.C.C.P., the grounds of error alleged need not make out “a colorable need for the complete transcript” before an indigent becomes entitled to the complete record. Curry v. State, supra; Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), involving appeals from misdemeanor convictions, presented the question of just how far the principle of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), was to be extended. [In Griffin, the United States Supreme Court held that the due process and equal protection clauses of the Fourteenth Amendment are violated where a State provision for an appeal in all criminal cases as a matter of right is so administered as to deny full appellate review to an indigent appellant solely because of his inability to pay for a transcription of the record while granting such review to all other defendants. Griffin, of course, involved a felony conviction.] In Mayer, the United States Supreme Court held that any distinction between felonies and misdemeanors in this concept was an “unreasonable distinction” and held that although the State must afford an indigent appellant a “record of sufficient completeness” to permit proper consideration of his claim on appeal, it need not necessarily furnish a complete verbatim transcript, but may provide alternatives that accord effective appellate review. The Court made clear, however, that where “the grounds of appeal, as in this case, make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an ‘alternative’ will suffice for an effective appeal on those grounds.”
      So whether due process and equal protection requirements or statutory provisions are involved, the importance of having a court reporter in county court report the trial proceedings is well demonstrated, particularly where the question of indigency may become involved, and where a request for such reporter is made. See and cf. Attorney General’s Opinion M-1095 (March 13, 1972).


text:
    Gonzalo GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 50514.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Guy H. McNeely, Wichita Falls, Court appointed, for appellant.
    Tim Eyssen, Dist. Atty. and James B. Ammons, Asst. Dist. Atty., Wichita Falls, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation. In December of 1973 appellant was indicted for the offense of assault to murder with malice under Art. 1160 of our former Penal Code. On March 13, 1974, in a trial before the court, appellant was found guilty of assault to murder without malice. The trial court assessed punishment at five years, probated.

Condition two of appellant’s probation was that he “avoid injurious or vicious habits. (Such as, the use of . alcoholic beverages . . . ).” Condition five was that appellant “refrain from entering or frequenting any place of ill repute or desreputable [sic] or harmful character (Eg: bars, bawdy houses . . . ).”

The State alleged, and the court found, that appellant violated these conditions by “consuming alcoholic beverages at the Rock Inn, on or about the 9th day of August, 1974, in Wichita County, Texas.” The court revoked appellant’s probation and sentenced him to serve not less than two nor more than five years.

In full compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), appellant’s court-appointed counsel has filed a brief urging one arguable ground of error. He has, however, urged as arguable support for the appeal, Anders, supra, 386 U.S. at 744, 87 S.Ct. 1396, the contention that “a person can [not] be sent to the Texas Department of Corrections for drinking intoxicating beverages.” He recognizes that Pearson v. State, 486 S.W.2d 576 (Tex.Cr.App.1972), provides authority which serves to overrule this contention. We adhere to our holding in Pearson and decline to “turn [the trial court] around pronto,” as counsel has suggested we do.

We feel compelled to take this opportunity to laud counsel for his efforts in complying with Anders v. California, supra. Compare Gainous v. State, supra. Counsel has not only referred to a legal issue which might arguably support the appeal; he has also argued that issue in his brief (while conceding that binding authority was against him); he has delivered a copy of the brief to appellant; and he has “secured an order of the Trial Judge giving Gonzalo another month in which to file a brief herein.” Going further, he asked every lawyer he saw “if he, or she nowadays, [knew] of any case applicable to the issue.” In his brief he reports that:

“Some lawyer, name forgotten, told him about PALAFOX V. STATE, by Judge Onion [Tex.Cr.App.], 509 SW-2 page 846. This lawyer did not see how that case could help Gonzalo but the Court can read it and if the Court thinks it does Gonzalo would appreciate it.”

Sure enough, as counsel observed, Pala-fox does not yield comfort to his client. However, that name-forgotten lawyer, well-intentioned to be sure, managed to overlook a case which does help appellant. The case is Welcome v. State, 438 S.W.2d 99 (Tex.Cr.App.1969), where we held that the double penalty provisions of Article 1160 could not be invoked in the absence of allegations in the indictment making the double penalty provisions applicable.

Here, as in Welcome, the appellant was charged with assault to murder with malice. The court found him guilty of assault to murder without malice and assessed punishment at five years. Without the double penalty provisions of Article 1160, the maximum punishment for this offense is three years. Since the State did not allege any of the special factors which give rise to the double penalty provisions, the sentence of five years is void. Welcome v. State, supra.

Nor can it be said that the punishment assessed was authorized because it was within some applicable punishment range under our new Penal Code. The record contains no written motion requesting that appellant be sentenced under the provisions of the new Code. In the absence of such a motion, the court must assess a defendant’s punishment within the punishment range provided by the former Code. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 6(c), eff. Jan. 1, 1974. Compare Section 6.01(c) of the Controlled Substances Act, Vernon’s Ann.Civ.St., Art. 4476-15, and Saunders v. State, 511 S.W.2d 281 (Tex.Cr.App.1974).

The punishment is set aside, and the case is remanded for a proper assessment of punishment by the trial judge.

DOUGLAS, J., concurs in the results.

      .The judgment recites only that appellant was convicted of assault with intent to kill. However, every other subsequent document filed — including the “judgment of probation,” the motion to revoke probation, the order revoking probation, and the sentence — indicates that the conviction was for assault to murder without malice. Accordingly, the judgment will be reformed to reflect that appellant was found guilty of assault to murder without malice. See, e. g., Castaneda v. State, 491 S.W.2d 885, 887 (Tex.Cr.App.1973).

      . Compare Kubat v. State, 503 S.W.2d 258 (Tex.Cr.App.1974), where we upheld a similar contention and reversed. In that case, however, the allegation was that the probationer had been “drinking excessively,” while the evidence showed only a mild case of consumption. Moreover, that probationer was merely required to avoid vicious and injurious habits, while the appellant in the present case was, in addition, given spécific examples of particular habits he should avoid.

      . The Honorable Guy H. McNeely.

      . In Palafox, we found it unnecessary to reach the issue which counsel now brings forward.

      . Omitting the formal parts, the indictment reads: “that Gonzalo Gonzales on or about the 7th day of December A.D., 1973 and anterior to the presentment of this Indictment, in the County of Wichita and State of Texas, did then and there unlawfully with malice aforethought make an assault in and upon Jesse Diaz, Jr. with the intent then and there to kill the said Jesse Diaz, Jr.” This is almost exactly the form used in the indictment in Welcome v. State, supra at 100.


author: GREEN, Commissioner.

text:
    Manuel RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50848.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court without a jury, appellant was convicted of the offense of unlawful possession of a firearm by a felon. See V.T.C.A. Penal Code, Sec. 46.05. Punishment, which was enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.-42(a), was assessed at five years.

The indictment alleges that on or about June 14,1974, appellant possessed a firearm away from the premises where he lived, and that on December 1, 1967, in Cause No. 12,736 in the 105th District Court of Nueces County, Texas, he was duly and legally convicted of murder without malice, which was a final conviction prior to the commission of the instant offense. In a second paragraph, the indictment alleged this same conviction in Cause No. 12,736, in the 105th District Court, Nueces County, for purposes of enhancement of the punishment. No other prior conviction was alleged.

Appellant plead nolo contendere to the charge in the first paragraph of the indictment, and not guilty to the allegations of the second paragraph. The judgment recites that the court found him guilty “of Possession of Firearm by Felon, First County (sic) and Enhancement of Punishment, Second Count.”

Although the record does not reflect that any objection was raised in the trial court to the allegations in the second paragraph purporting to use the same prior conviction for enhancement that was alleged as an element of the primary offense, and no complaint thereof is made by appellant in this Court, we find that such paragraph fails to allege the constituent elements necessary in order to enhance the punishment under V.T.C.A. Penal Code, Sec. 12.42(a), supra. See Art. 27.08, V.A.C.C.P.; Cox v. State, 523 S.W.2d 695; Terry v. State, Tex.Cr.App., 517 S.W.2d 554. Hence, such paragraph is fundamentally defective, and we should and will consider its deficiency in the interest of justice. Art. 40.09, Sec. 13, V.A. C.C.P.; Ex parte Roberts, Tex.Cr.App., 522 S.W.2d 461; Standley v. State, Tex.Cr.App., 517 S.W.2d 538.

V.T.C.A. Penal Code, Sec. 46.05, supra, is a special statute which, as an element of the offense, requires proof of a prior final conviction of a felony involving an act of violence in addition to proof of the possession of a firearm away from the premises where the accused lives. Having been alleged as an element of the offense charged in the first paragraph, the conviction in Cause No. 12,736 in the 105th District Court of Nueces County on December 1, 1967 was not available and could not be again used to enhance the punishment under V.T.C.A. Penal Code, Sec. 12.42(a), supra. Garcia v. State, 169 Tex.Cr.R. 487, 335 S.W.2d 381. Cf. Mena v. State, 504 S.W.2d 410, 415; Ex parte McLane, Tex.Cr.App., 417 S.W.2d 405.

As stated on motion for rehearing in Garcia, supra:

“Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618; Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465; Granado v. State, 168 Tex.Cr.R. 525, 329 S.W.2d 864, and Fletcher v. State, 169 Tex.Cr.R. 506, 335 S.W.2d 613, support the holding in our original opinion that a prior conviction is not available to enhance punishment for an offense of which it is an essential element.”

As heretofore stated, the judgment reflects that the trial court, in assessing the punishment, enhanced it because of the same prior conviction that was alleged as an element of the offense. We recognize that the punishment assessed by the court is within the range provided for a third-degree felony as well as a second-degree felony. See and compare V.T.C.A. Penal Code, Secs. 12.33 and 12.34. However, since the record reflects that the court found appellant guilty of a second-degree felony under the enhancement statute, Sec. 12.42(a), supra, and assessed punishment as provided in Sec. 12.33, we cannot assume that this same punishment would have been set if the court had found the offense to be a third-degree felony and assessed punishment under the provisions of Sec. 12.34. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592.

The error relates solely to punishment, which was assessed by the court. Accordingly, the punishment heretofore assessed is set aside, and the case is remanded to the trial court for proper punishment for conviction of a third-degree felony as such punishment is provided in V.T.C.A. Penal Code, Sec. 12.34, and for the pronouncement of sentence, and for further proceedings authorized by Art. 40.09, V.A.C.C.P. See Saunders, v. State, Tex.Cr.App., 511 S.W.2d 281; Elizalde v. State, Tex.Cr.App., 507 S.W.2d 749.

It is so ordered.

Opinion approved by the Court.

      . “Sec. 46.05. Unlawful Possession of Firearm by Felon
      “(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.
      “(b) An offense under this section is a felony of the third degree.”

      . V.T.C.A. Penal Code, Sec. 12.42(a) provides that if it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony.


author: DAVIS, Commissioner.

text:
    Carl Everett HOSTETTER, Appellant, v. The STATE of Texas, Appellee.
    No. 49740.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      Leland D. Sutton, Odessa, for appellant.
    John H. Green, Dist. Atty. and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

DAVIS, Commissioner.

Our opinion on original submission is withdrawn and the following is substituted therefor.

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

Appellant shot his wife, Thelma Christine Hostetter, on August 27, 1970. She died on August 29, 1970. Appellant’s defense was insanity.

Appellant contends that the trial court erred in allowing the witness Dr. James H. Kreimeyer to testify that his colleagues at the Big Spring State Hospital agreed with his diagnosis of appellant’s mental condition over the objection that same was inadmissible hearsay testimony.

Appellant argues that he timely objected when such testimony was offered and urges that the subsequent admission of the doctor’s diagnosis without objection did not render the opinion of other persons admissible.

The record reflects that the following occurred during direct examination of Dr. Kreimeyer by the prosecutor.

“Q. Okay. After you tested and examined [appellant] and went through your procedures down there for evaluation did you present this to a board down there that you have?
“A. Well, our staff meeting, medical staff and consultant psychiatrists from Midland and some of the social workers, psychologists, present a case and see if we are in agreement.
“Q. And you did this in this case?
“A. I did.
“MR. SUTTON: If the Court please, that is certainly hearsay as far as this Defendant is concerned. I thought they brought Dr. Kreim-eyer here to testify to his mental condition.
“THE COURT: I will overrule your objection.
“MR. SUTTON: Note our exception.
“Q. Did you present it to the board?
“A. I did, sir.
“Q. What was the composite opinion of the board?
“A. They agreed with my diagnosis of passive-aggressive personality disorder, episodic excessive drinking and—
“MR. SUTTON: Now, if the Court please, there is not one iota of evidence in this record about this man’s drinking habits. If the doctor is permitted to testify to it, it is the rankest kind of hearsay and is inadmissible evidence.
“THE COURT: Part of the diagnosis.
“Q. I will ask the question that way. Did you diagnose on him that he had chronic alcoholism when he was down there?
“A. Episodic excessive drinking.
“Q. Episodic?
“A. Yes, sir, and mild drug dependency, of a very mild tranquilizer.”

Dr. Kreimeyer concluded that “In my opinion he [appellant] was legally sane. That is he knew right from wrong, the nature and consequences of his act.”

We agree that the admission of testimony by Dr. Kreimeyer regarding his diagnosis of “episodic excessive drinking” without objection did not constitute a waiver of appellant’s objection to the testimony of Dr. Kreimeyer that the board agreed with his diagnosis.

In Schooler v. State, 175 S.W.2d 664 (El Paso Ct. of Civ.App., 1943), relied on by the State, it was held that in condemnation proceedings testimony of geologists to value of minerals, though based in a large part on geological reports made by others, was admissible. The Court noted that it was analogous “to the diagnosis by a physician based in part on unsworn reports of tests made by hospital technicians.” (Emphasis supplied)

In Birdsell v. United States, 346 F.2d 775 (5th Cir., 1965), also cited by the State, it was stated:

“This Court has held that opinions as to sanity contained in hospital records are not admissible under the Business Records Act, 28 U.S.C. § 1732, and that such an opinion is receivable only if the expert rendering it is made available for cross-examination. England v. United States, 174 F.2d 466, 468-469 (5 Cir. 1949); Mullican v. United States, 252 F.2d 398, 404 (5 Cir. 1958). But that does not mean that the records of a hospital performing psychiatric investigations with respect to the symptoms recounted by the subject or the results of recognized psychological tests stand differently under the Business Records Act than do similar data concerning other forms of illness, . . . ”

In the remaining case cited by the State, United States v. Williams, 447 F.2d 1285 (5th Cir., 1971), it was held that an expert witness can express an opinion as to value even though his opinion is based in part or solely upon hearsay sources.

The opinion in Birdsell appears to be adverse to the State’s position, the Court stating that opinions as to sanity in hospital records are inadmissible. The instant case is even a step further removed for there is no suggestion that the “opinion of the board” expressed by the doctor came from such a record. While it is true that the doctor did not testify as to the board’s opinion as to appellant’s sanity, he did testify that the board agreed with his diagnosis of “passive-aggressive personality disorder, episodic excessive drinking, . . . ” It is logical to conclude that such opinion was consistent with the doctor’s conclusion that appellant was “legally sane.”

Clearly, the doctor was not expressing an opinion based on tests and findings by the members of the board, but was stating that the members of the board agreed with his diagnosis.

The right to cross-examine witnesses is implicit within the right to confrontation provided by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

The right to confront and cross-examine witnesses has also been held to be essential to due process and a fair trial within the provision of the Fourteenth Amendment to the Constitution of the United States. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

As was noted by this Court in Coulter v. State, 494 S.W.2d 876, if the rights of confrontation and cross-examination were absolute, none of the exceptions to the hearsay rule would apply in criminal cases. While we recognize, as was stated in Coulter, that in almost every criminal case evidence is properly admitted under one of the exceptions to the hearsay rule, we do not find the complained-of testimony in the instant case to fall within any of the exceptions.

We next look to see if the error in admitting such evidence was so harmful to appellant as to require reversal.

Appellant’s only defense was that he was insane at the time of the commission of the crime charged in the indictment. Appellant offered the testimony of a clinical psychologist that he was insane at the time of the act. In addition, appellant offered lay testimony of relatives to support this defense, and appellant testified that he did not recall any of the events surrounding the shooting of his wife.

The State controverted the evidence of insanity presented by appellant with the testimony of Dr. Kreimeyer and the lay testimony of a deputy sheriff.

The complained-of testimony of Dr. Kreimeyer that the board which was composed of “medical staff and consultant psychiatrists from Midland and some of the-social workers, psychologists” agreed with his diagnosis clearly bolstered the doctor’s testimony relative to his diagnosis and was so harmful to appellant as to require reversal of the conviction.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . This transcription of the court reporter’s notes or the statement of facts consists of two volumes containing 595 pages. It does not even contain an index giving the names of the witnesses. Since there is no index, there is no mention of exhibits, where they were identified or admitted into evidence. Court reporters should at least prepare an index for the trial court and this Court to better review the record.
      Trial judges should require the proper preparation of the transcription of the court reporter’s notes to prevent their being returned. We hope that it will not be necessary for rules to be adopted in regard to the preparation of the court reporter’s part of the record for appeal.
      For examples of good records of the transcription of the court reporter’s notes, see Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975), and Yates v. State, 509 S.W.2d 600 (Tex.Cr.App.1974).


text:
    Robert L. LUNA, Appellant, v. The STATE of Texas, Appellee.
    No. 50286.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.
    R. Roscoe Haley, Austin, for appellant.
    Joe Carroll, Dist. Atty., Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON MOTION TO REINSTATE APPEAL

DOUGLAS, Judge.

The appeal was previously abated because the “frivolous appeal” brief filed by appointed counsel for appellant did not contain an evaluation of the record demonstrating why there are no arguable grounds to be adyanced.

A supplemental record has been forwarded to this Court. It will be treated as a motion to reinstate the appeal.

After the cause was abated, appellant, by virtue of a bench warrant, was taken from the Texas Department of Corrections to the trial court and advised of his right to file a brief in his behalf. His counsel was not present.

No pro se brief has been filed. Still no brief has been filed by appointed counsel evaluating the record and demonstrating why there are no arguable grounds to be advanced.

When the appellant was advised of his right to file a brief the trial judge stated: “I couldn’t even notify him (counsel) to be here, but I assume that he is going to do all he is going to do in this thing. . .”

Under the decision of the Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and this Court in Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), more is required. The . trial court, after this cause was abated, had control of the cause. He also had authority to require the appointed attorney to file an additional brief in compliance with Anders v. California, supra, and Gainous v. State, supra.

The appeal is again abated so that this will be done.


author: DALLY, Commissioner.

text:
    Mary DANIELS, Appellant, v. The STATE of Texas, Appellee.
    No. 50442.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.
    O. W. Sternberg, Waco, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Commissioner.

This is an appeal from a conviction for the offense of voluntary manslaughter; the appellant’s punishment assessed by the jury is imprisonment for eight years. This record does not contain a transcript of the court reporter’s notes; no question of the appellant’s indigency was raised; no briefs were filed either in the trial court or in this court before original submission. The judgment was affirmed in a Per Curiam opinion. That opinion is now withdrawn. The appellant’s motion for leave to file a motion for rehearing has been granted, and we will now consider the motion for rehearing.

The appellant asserts that fundamental error was committed because the jury was not properly charged on the full range of punishment for the offense of voluntary manslaughter.

V.T.C.A. Penal Code, Sec. 19.04(d) provides that voluntary manslaughter is punishable as a second degree felony. V.T.C.A. Penal Code, Sec. 12.33 provides punishment for second degree felony as follows:

“(a) An individual adjudged guilty of a felony of the second degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 20 years or less than 2 years.
“(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.”

At the punishment phase of the trial, the court’s instruction to the jury concerning punishment was that “our statutes provide that the punishment for the offense of voluntary manslaughter is by confinement in the Texas Department of Corrections for any term of years not less than two nor more than twenty.” The charge did not instruct the jurors that in addition to imprisonment they could assess a fine not to exceed $10,000. The appellant did not object to the charge submitted by the court, and she did not make a special request for a proper charge.

If the jury had been instructed on the full range of punishment, the appellant argues, it might have assessed punishment of a fine and a term of imprisonment of less than eight years.

Some of the early cases held that the submission of an incorrect charge on punishment required reversal of the judgment, even though harm or prejudice was not shown. E. g. Buford v. State, 44 Tex. 525 (1876); Howard v. State, 18 Tex.App. 348 (1885); Gardenhire v. State, 18 Tex.App. 565 (1885). Now, however, the rule is well established that the submission of an incorrect charge on punishment does not require reversal of the judgment unless harm or prejudice is shown. Leal v. State, 46 Tex.Cr.R. 334, 81 S.W. 961 (1904); Manning v. State, 46 Tex.Cr.R. 326, 81 S.W. 957 (1904); Robbins v. State, 57 Tex.Cr.R. 8, 121 S.W. 504 (1909); Bragg v. State, 73 Tex.Cr.R. 340,166 S.W. 162 (1914); Grider v. State, 82 Tex.Cr.R. 124,198 S.W. 579 (1917); Thompson v. State, 91 Tex.Cr.R. 234, 237 S.W. 926 (1922); Billings v. State, 92 Tex.Cr.R. 628, 245 S.W. 236 (1922); Sulak v. State, 118 Tex.Cr.R. 112, 40 S.W.2d 157 (1931); Christian v. State, 135 Tex.Cr.R. 42, 117 S.W.2d 1094 (1938); Fletcher v. State, 137 Tex. Cr.R. 191, 128 S.W.2d 404 (1939); Marks v. State, 144 Tex.Cr.R. 509, 164 S.W.2d 690 (1942).

Can the error of misdirecting the jury on the range of punishment be raised at any time? There are two lines of authorities. One line holds it may be raised at any time. See Thompson v. State, supra; Punchara v. State, 122 Tex.Cr.R. 134, 54 S.W.2d 110 (1932). Another line holds that it may not successfully be raised for the first time on appeal and should be raised by objection before the erroneous charge is submitted to the jury. See Manning v. State, supra; Robbins v. State, supra; Grider v. State, supra; Bragg v. State, supra; Marks v. State, supra. See also Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974); Campbell v. State, 525 S.W.2d 4 (decided July 16, 1975).

In Thompson v. State, supra, the defendant was convicted for the offense of robbery with a deadly weapon; the statutory penalty was punishment by death or any term of years not less than 5; the court erroneously charged that the permissible punishment included life imprisonment; the jury assessed the death penalty; this Court held that the error was harmless; there was no objection to the charge, but this Court said the objection could be raised on the motion for rehearing on appeal.

In Manning v. State, supra, the defendant was convicted for the offense of perjury; the statutory penalty was punishment by imprisonment for not less than 2 years nor more than 10 years; the court erroneously charged that the permissible punishment was not less than 5 years nor more than 10 years; the jury assessed punishment of imprisonment for 7 years; this Court held that the error was waived because of the defendant’s failure to object to the erroneous charge at the time of the trial; one judge wrote a dissenting opinion; the majority opinion has been criticized, Thompson v. State, supra; Clayton v. State, 78 Tex.Cr.R. 158,180 S.W. 1089 (1915); but it has also been- cited as authority, e. g., Robbins v. State, supra; Grider v. State, supra, and it has never been overruled.

In Grider v. State, supra, the defendant was convicted for the offense of cattle theft; the statutory penalty was imprisonment in the penitentiary for not less than 2 years and not more than 4 years; the court erroneously charged that the permissible punishment was not less than 2 years and not more than 5 years; the jury assessed punishment of imprisonment for 3 years; this Court held that error was waived because of the defendant’s failure to object to the erroneous charge at the time of trial.

The court’s instructions in Manning v. State, supra, and Grider v. State, supra, that misdirected the jurors on the range of punishment that could be assessed were more harmful to those defendants than the complained of instructions are to the appellant in this case. In this case, at the time of trial, it was to the appellant’s advantage not to object to the instructions that failed to tell the jurors they could assess a fine in addition to imprisonment. She, having accepted this benefit, having failed to object to the court’s charge, and having failed to request a proper charge — Articles 36.14 and 36.15, V.A.C.C.P. — waived her objection and cannot now for the first time on appeal in the motion for rehearing successfully complain of the court’s erroneous charge. See Article 36.19, V.A.C.C.P.; Manning v. State, supra; Grider v. State, supra; Campbell v. State, supra.

The judgment is affirmed.

Opinion approved by the Court.

ONION, P. J., and ROBERTS, J., dissent.


text:
    David HOUSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 49668.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    C. David Evans and W. Allan Craig, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Michael Schill and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appeal is taken from a conviction for possession of narcotic paraphernalia. Punishment, assessed at appellant’s request under the provisions of Subsection (c), Sec. 6.01, of the Texas Controlled Substances Act, is sixty days in jail and a fine of two hundred dollars.

In two grounds of error, appellant contends that his conviction is void since the indictment is fatally defective since it does not allege conduct which constituted an offense at the time of the trial.

The indictment, which was returned by the grand jury on December 6,1972, alleges that appellant, in Bexar County, Texas, on or about October 21, 1972,

“ . . . did then and there unlawfully have and possess ONE (1) HYPODERMIC SYRINGE AND NEEDLE adapted for the use of narcotic drugs by subcutaneous injection into a human being with the purpose and intent of using such HYPODERMIC SYRINGE AND NEEDLE to inject narcotic drugs into a human being by subcutaneous injection; . .

This indictment was sufficient to allege the offense of unlawful possession of narcotic paraphernalia under Article 726d, Section 3(h), V.A.P.C., as it existed at the time of the offense and the date the indictment was filed in court. See Buford v. State, Tex.Cr.App., 481 S.W.2d 133.

At the time of the trial, September 27, 1973, the Controlled Substances Act (Art. 4476-15, Rev.Civ.Stats. of Texas) was in effect. Sect. 4.07 of the Act provides:

“Possession of controlled substance paraphernalia .
“Sec. 4.07(a) A person, except a practitioner or a person acting under his direction, commits an offense if he possesses a hypodermic syringe, needle, or other instrument that has on it any quantity (including a trace) of a controlled substance in Penalty Group 1 ór 2 with intent to use it for administration by subcutaneous injection in a human being.
“(b) An offense under Subsection (a) is a Class A misdemeanor.” (Emphasis added).

Heroin is included in Penalty Group 2,. Art. 4.02(b)(2)(J).

Appellant contends that since the above article added the requirement that the syringe, needle, or other instrument have “on it any quantity (including only a trace) of a controlled substance,” which Art. 726d, Sec. 3(h), V.A.P.C. (1972), supra, on which the indictment was based, did not require, and which was not alleged, the indictment did not allege all elements of the offense required by the statute in effect at the trial, and, therefore, could not support the conviction. See Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Shane v. State, Tex.Cr.App., 513 S.W.2d 579.

Section 6.01(a) of the Controlled Substances Act provides:

“Except as provided in Subsections (b) and (c) of this section, this Act applies only to offenses committed on and after its effective date, and a criminal action for an offense committed before the effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force. . . . ”

Appellant, in his argument, relies on Subsection (b) of Section 6.01, which reads:

“Conduct constituting an offense under existing law that is no longer an offense under this Act may not be prosecuted after the effective date Of this Act. If on the effective date of this Act, a criminal action is pending for conduct that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act.”

We construe Subsection (b), supra, according to its terms. It speaks of conduct under the law existing at the time of the commission of the offense, and conduct constituting an offense under the Controlled Substances Act.

In the trial, appellant plead guilty to the indictment, waived a jury, and entered into stipulations evidencing his guilt. The State introduced in evidence a Toxicology Report which established that the syringe and needle that appellant possessed had on them a quantity of heroin, a controlled substance.

Under the' provisions of Subsection (b) of Section 6.01, supra, the conduct of the accused determines whether the alleged offense was an offense after the Controlled Substances Act became effective. See Ambers v. State, Tex.Cr.App., 527 S.W.2d 855 (1975); Wright v. State, Tex.Cr.App., 527 S.W.2d 859 (1975); Rockwood v. State, Tex.Cr.App., 524 S.W.2d 292. The proof established that his conduct was an offense under that Act. Hence, under the provisions of Subsection (a) of Section 6.01, supra, Art. 726d, Sec. 3(h), V.A.P.C., (1972), supra, was applicable in the instant case, and the indictment charging appellant with possession of narcotic paraphernalia under Art. 726d, Sec. 8(h), was a valid indictment. See Saunders v. State, Tex.Cr.App., 511 S.W.2d 281; Jones v. State, Tex.Cr.App., 502 S.W.2d 771.

Appellant’s grounds of error are overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . Article 726d, Section 3(h), V.A.P.C., as it was in effect on the date of this offense in 1972, provided that it is unlawful “For any person at any time to have, or possess, a hypodermic syringe, needle, or any instrument adapted for the use of dangerous drugs by subcutaneous injections in a human being and which is possessed for that purpose, unless such possession is for the purpose of subcutaneous injections of a drug, or. drugs, or medicine, the use of which is authorized by the direction of a licensed physician.”