author: ROBERTS, Judge.

text:
    Waymon P. WOODS, Appellant, v. The STATE of Texas, Appellee. Homer E. RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. Don A. KUNCAS, Appellant, v. The STATE of Texas, Appellee. Daniel R. PENA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51004 to 51006, 51214, 51215 and 51469.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.

      Robert A. Shivers, San Antonio, for appellant Woods.
    Ted Butler, Dist. Atty., Michael Schill and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
    No attorney on appeal for appellants Rodriguez, Kuncas, and Pena.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State in 51214, 51215 & 51469.
   OPINION

ROBERTS, Judge.

These cases present important questions concerning our appellate jurisdiction to entertain them. Specifically, the question is whether the sentence, as defined by Art. 42.02, Vernon’s Ann.C.C.P., in each of the cases was untimely and improperly pronounced.

In cause numbers 51,004, 51,005 and 51,-006, Woods waived trial by jury and entered pleas of guilty before the court to three indictments, each charging him with burglary of a habitation. The pleas were taken, Woods was convicted, and the court assessed punishment at seven years’ confinement in each case on December 11, 1974. Because of an application for probation, a pre-sentence investigation was ordered. On January 2, 1975, the court denied probation and immediately pronounced sentence in each case. The records are silent, however, as to any waiver of the time to file a motion for new trial or motion in arrest of judgment after probation was denied.

In cause number 51,214, Rodriguez waived trial by jury and entered a plea of guilty before the court to an indictment charging him with possessing more than four ounces of marihuana. The plea was taken, Rodriguez was convicted, and the court assessed punishment at five years’ confinement on December 5,1974. Because of an application for probation, a pre-sen-tence investigation was ordered. On January 10,1975, the court denied probation and immediately pronounced sentence. The record is silent, however, as to a waiver of the time to file a motion for new trial or a motion in arrest of judgment after probation was denied. In fact, the contrary appears because Rodriguez’s counsel asked the court if he could have the ten days immediately after sentence was pronounced. The court replied:

“No, sir; you can file a motion for new trial. I will give you ten days to file a motion for new trial, . .”

However, the January 10 sentence was not set aside or sentence repronounced after the expiration of the statutory time.

In cause number 51,215, Kuncas waived trial by jury and entered a plea of guilty to an indictment charging him with delivering marihuana with remuneration. The plea was taken, Kuncas was convicted, and the court assessed punishment at five years’ confinement on March 31,1975. Because of an application for probation, a pre-sentence investigation was ordered. On May 1,1975, the court denied probation, reduced the punishment from five years’ to three years’ confinement, and immediately pronounced sentence. The record is silent, however, as to any waiver of the time in which to file a motion for new trial or a motion in arrest of judgment after probation was denied. In fact, on May 9,1975, and within ten days from the time probation was denied, Kun-cas filed a motion to reconsider his application for probation and a motion for new trial. No action appears to have been taken on the motion for new trial; however, the trial court denied Kuncas’ motion for reconsideration of probation. The May 1 sentence was not set aside or a new sentence pronounced after the expiration of the statutory time.

In 51,469, Pena waived trial by jury and entered a plea of guilty before the court to an indictment charging him with burglary of a vehicle. The plea was taken, Pena was convicted, and the court assessed punishment at three years’ confinement. Because of an application for probation, a pre-sen-tence investigation was ordered. On April 10, 1975, the court denied probation and immediately pronounced sentence. The record is silent, however, as to any waiver of the time in which to file a motion for new trial or motion in arrest of judgment after probation was denied. In fact, the record reflects that after probation was denied and prior to pronouncement of sentence Pena requested ten days to file a motion for new trial. The trial judge answered that the time to file a motion for new trial had expired.

A sentence, as defined by Art. 42.-02, Vernon’s Ann.C.C.C.P., is required to be pronounced in all cases before an appeal is taken, except in death penalty eases and in probation cases where imposition of sentence is suspended. Art. 42.04, Vernon’s Ann.C.C.P. In all cases where a sentence is required to be pronounced before an appeal is taken, such sentence must be included in the record on appeal. Art. 40.09, Sec. 1, Vernon’s Ann.C.C.P. Numerous appeals of this nature have been dismissed where the required sentence did not appear in the record. See, e. g., Black v. State, 473 S.W.2d 469 (Tex.Cr.App.1971); Clemons v. State, 414 S.W.2d 940 (Tex.Cr.App.1967); Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967); Baker v. State, 491 S.W.2d 887 (Tex.Cr.App.1973); cf. Casias v. State, 503 S.W.2d 262 (Tex.Cr.App.1973). Likewise, it has been held that, in cases where sentence is required, a sentence which has been improperly and untimely pronounced requires dismissal of the appeal. Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.1969); Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969); Payne v. State, 471 S.W.2d 815 (Tex.Cr.App.1971); Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.1973).

Article 42.03, Vernon’s Ann.C.C.P., governs the time for pronouncing sentence. It provides that, in cases where sentence is required under Art. 42.02, supra, the sentence shall be pronounced at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment. Numerous appeals have been dismissed because sentence was pronounced prior to the expiration of the time provided in Art. 42.03, supra. These include Pool v. State, 429 S.W.2d 158 (Tex.Cr.App.1968) Watson v. State, 429 S.W.2d 890 (Tex.Cr.App.1968); Tapp v. State, 432 S.W.2d 102 (Tex.Cr.App.1968); Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969); Gonzales v. State, 440 S.W.2d 847 (Tex.Cr.App.1969); McDonald v. State, 442 S.W.2d 352 (Tex.Cr.App.1969); Clark v. State, 442 S.W.2d 353 (Tex.Cr.App.1969); Posas v. State, 443 S.W.2d 849 (Tex.Cr.App.1969); Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.1969); Stuart v. State (two cases), 445 S.W.2d 743 (Tex.Cr.App.1969); Grimes v. State, 449 S.W.2d 270 (Tex.Cr.App.1969); Duke v. State, 462 S.W.2d 596 (Tex.Cr.App.1971); Singleton v. State, 468 S.W.2d 405 (Tex.Cr.App.1971); Payne v. State, 471 S.W.2d 815 (Tex.Cr.App.1971); Payne v. State, 477 S.W.2d 581 (Tex.Cr.App.1972); James v. State, 480 S.W.2d 690 (Tex.Cr.App.1972); Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.1973); Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975).

Art. 40.05, Vernon’s Ann.C.C.P., governs the time for filing motions for new trial. It provides, in part:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed. Such motion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be determined by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal.”

Art. 41.02, Vernon’s Ann.C.C.P., provides that a motion in arrest of judgment must be made within ten days after conviction.

In Posas v. State, 443 S.W.2d 849 (Tex.Cr.App.1969), the appellant was adjudged guilty on April 23, 1968; however, the punishment was not assessed until May 24, 1968. On the same day punishment was assessed appellant was sentenced. On June 3,1968, the tenth day after punishment was assessed on May 24, appellant filed his motion for a new trial. The appeal was ordered dismissed because appellant was sentenced prior to the time provided in Art. 42.03, Vernon’s Ann.C.C.P.

In Singleton v. State, 468 S.W.2d 405 (Tex.Cr.App.1971), appellant was found guilty on October 15, 1969; however, punishment was not assessed until November 3, 1969. On November 13,1969, the appellant filed his motion for new trial. The appellant did not waive the time allowed by law to file his motion for new trial and agree to accept sentence at an earlier time. This Court dismissed the appeal because the sentence was pronounced prior to the expiration of the time provided in Art. 42.03, Vernon’s Ann.C.C.P.

In Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975), appellant was found guilty on September 23, 1974. Punishment was not assessed until December 18, 1974. This Court, in construing the term “conviction” as used in Art. 40.05, Vernon’s Ann.C.C.P., relating to motions for new trial, and Art. 41.02, Vernon’s Ann.C.C.P., relating to motions in arrest of judgment, held that an adjudication of guilt does not amount to a “conviction.” A conviction, the Court held, for the purposes of these statutes is an adjudication of guilt plus an assessment of punishment.

Thus, we are squarely faced with the question of when was punishment assessed within the meaning of Faurie v. State, supra. Does the time to file a motion for new trial or motion in arrest of judgment begin to run from the time the judge announces a term of years (or months, or weeks, or days, or hours) or when he informs the defendant that the term announced must be served in the Department of Corrections (or county jail) or under the supervision of a probation officer? See Art. 42.12 and Art. 42.13, Vernon’s Ann.C.C.P.

We hold that the time to file a motion for new trial or motion in arrest of judgment does not begin to run so long as an application for probation is pending without determination by the trial court. Stated another way, even though a penalty has been announced, yet an application for probation is under consideration by the trial court, the time for filing a motion for new trial or motion in arrest of judgment does not begin to run until the date the court either grants or denies probation. This is so because “a defendant can make no intelligent decision as to whether to file a motion for new trial or motion in arrest of judgment until he knows the punishment that he faces.” Faurie v. State, 528 S.W.2d at 265.

In the instant cases the appellants did not know for sure what their punishments would be (incarceration or probationary supervision) until the date their sentences were formally pronounced, and they were thus precluded from being given the opportunity to file a motion for new trial or motion in arrest of judgment within the time provided by law. Absent a waiver of such time, we conclude that the sentence in each of these cases was prematurely pronounced. We, therefore, conclude that the appeals must be dismissed.

The only remaining question is the posture these cases must assume when they return to the trial court.

It is an abuse of discretion for the trial judge to refuse a defendant his absolute right to file a motion for new trial or motion in arrest of judgment where the right is properly asserted. Synagogue v. State, 122 Tex.Cr.R. 472, 55 S.W.2d 1052 (1933). See Art. 40.05, Vernon’s Ann.C.C.P. It follows that it is likewise an abuse of discretion where the trial court erroneously pronounces sentence in such a manner as to cut off completely appellant’s time for filing such a motion and his ability to assert this right. Art. 40.05, supra. Moreover, it is essential that the cases be placed in the same posture they were in when the error occurred. Garcia v. State, 499 S.W.2d 126 (Tex.Cr.App.1973).

Therefore, we conclude that upon the issuance of this Court’s mandates of dismissal, the appellants may, if they choose, file their motions for new trial or motions in arrest of judgment. The time for filing such motions shall commence with the receipt of the mandates by the clerk of the trial court. Thereafter, such amended motions as are in accord with the provisions of Article 40.05 may also be filed. Then, if these motions be overruled, the sentences may be properly pronounced and entered, and the appellants may give notice of appeal, if they desire to do so. In such event, proceedings pursuant to Art. 40.09, Vernon’s Ann.C.C.P., may be had.

It is so ordered.

The appeals are dismissed.

      . The sentence (Art. 42.02, infra) should be distinguished from the assessment of punishment, since the assessment of punishment forms a part of the judgment. See Art. 42.01, Vernon’s Ann.C.C.P., and Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975).

      . “A ‘sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Oscar HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50256.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.

      Eduardo Roberto Rodriguez, Brownsville, for appellant.
    Fred Galindo, Dist. Atty., Peter C. Gil-man, Asst. Dist. Atty., Brownsville, and Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of sexual abuse of a child, a violation of Y.T.C.A. Penal Code, Sec. 21.10; the punishment is imprisonment for 5 years.

The appellant presents one ground of error. It is:

“The trial court erred in allowing the State to question the defendant about alleged prior criminal acts without the requisite showing of relevance in time, character or identity with the offense at bar, thus prejudicing the right of the defendant to a fair trial.”

On June 12, 1974, Evangelina C_came from Matamoros, Mexico, to Brownsville to wash some clothes at a washateria. She was accompanied by her young son and the complainant, a nine year old neighbor girl. Mrs. C_ testified that the appellant stopped them on a Brownsville street, “flashed” an identification card, told them he was an immigration official, and asked to see their border crossing papers. The appellant examined their papers and told them that the young girl’s papers were not complete. He then took all of their papers saying he would “check them at immigration.” He told Mrs. C_to do her washing and then to meet him at the intersection of 14th and Monroe streets at 9:30 p. m. when he would return the papers. The appellant met them at the appointed time and place; he stated that since the young girl’s papers were not in proper order they would have to go with him and Mrs. C_would have to sign a paper. Mrs. C_and the children, under a threat that he would take them to jail if they did not go with him, got into the appellant’s automobile to go sign the paper. The appellant drove through some dark streets that were not familiar to Mrs. C_ They were taken to a house which was shown at the trial to be the appellant’s house. There the appellant committed the offense for which he has been convicted; he also compelled Mrs. C_to have a sexual act with him.

The appellant testified in his own behalf. His version of the facts, not believed by the jury, was quite different than those testified to by Mrs. C_ and the young girl. He testified that he did not commit the alleged act with the young girl; he said that a consensual agreement was made between him and Mrs. C_ for her sexual favors on the night in question and also for the next Saturday evening. He denied the truth of the testimony that he posed as an immigration official or that he took the border crossing papers. He said he had never done such a thing at any time. He also testified that he believed someone “out there wanted to do me something,” and that by out there he meant someone in Mexico. He intimated that “someone” had used this woman to “get” him.

Since the appellant in his defense denied that he had approached Mrs. C_ and the children posing as an immigration official, it was permissible for the State to rebut his defensive theory by showing he had on another occasion employed the same methods to take advantage of another person found in circumstances similar to those of Mrs. C.__ and the children. Presiding Judge Hawkins on motion for rehearing in Ivey v. State, 152 Tex.Cr.R. 206, 212 S.W.2d 146 (1948), explained the rule applicable:

“. . . The state, for the purpose of showing the improbability of [defendant’s] defensive theory, introduced the evidence complained of. Under such a state of facts, the evidence became admissible notwithstanding it tended to show an extraneous offense. Of course, the evidence was not admissible for the purpose of impeachment, or showing intent, identity, etc. We did not base our opinion holding it admissible upon any such theory. One of the best-known exceptions to the rule against proving extraneous crimes is that any competent evidence which tends to defeat the defense urged is admissible though it tends to show another offense.”

It was proper for the prosecutor to cross-examine the appellant about a similar prior incident when he posed as an immigration officer to take advantage of a young woman, if the cross-examination was done in good faith based on information known to the prosecutor. Even though the appellant did not admit to the truth of the prior incident, it would not be necessary for the prosecutor to prove up by other witnesses the facts upon which he based his cross-examination.

The burden was on the appellant to show if he could that the prosecutor’s cross-examination was done in bad faith. See Keel v. State, 434 S.W.2d 687 (Tex.Cr.App.1968); Alexander v. State, 476 S.W.2d 10 (Tex.Cr.App.1972); Solis v. State, 492 S.W.2d 561 (Tex.Cr.App.1973). Here the appellant did not even attempt to show that the prosecutor had no basis for the questions he propounded in cross-examination of the appellant. No error has been shown; the ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Felix F. FLORIO, Appellant, v. The STATE of Texas, Appellee.
    No. 50540.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.
    Rehearing Denied March 3, 1976.

      Charles Tessmer, Frank S. Wright, Ronald L. Goranson and Kevin J. Clancy, Dallas, for appellant.
    Henry Wade, Dist. Atty. and W. T. West-moreland, Jr., Douglas Mulder and Jon Sparling, Asst. Dist. Attys., Dallas, Jim D. Yollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is assault with intent to rape; the punishment, 50 years.

In his first two grounds of error appellant complains that he was not informed of the presence of blood on the butt of his service revolver prior to trial. The appellant had made a motion for discovery of all scientific tests including blood tests. After the service revolver was introduced in evidence by appellant, the State called Allen Jones, an expert witness, who testified that there were traces of blood found on the butt of the revolver. He could not determine whether the blood was of human origin or how long it had been there. He further testified that a ballistic comparison between appellant’s gun and the bullet recovered at the scene was inconclusive.

Appellant contends he would not have introduced the gun in evidence had he known about the traces of blood. He additionally contends that the court should have suppressed the evidence concerning the presence of blood since the appellant was not provided with a copy of the report.

As in Means v. State, Tex.Cr.App., 429 S.W.2d 490, we hold that, although fairness required that the State disclose to appellant the results of the test, it cannot be concluded that this evidence materially affected the determination of guilt. Failure to disclose such evidence prior to trial was not so prejudicial as to warrant reversal. We note that once this evidence was presented the appellant did not attempt to secure the report for purposes of cross examination or impeachment. It should be remembered that no effort was made by the State to show that the blood was that of the prose-cutrix or even that it was human blood.

In his third ground of error appellant contends that he was denied a fair trial because the State instructed witness Jones not to talk to defense counsel.

Jones testified that it was -his office’s policy to discuss reports in the presence of attorneys for both sides. On cross examination he revealed that the assistant district attorney had instructed him not to confer with the defense attorneys. However, the record reflects that a meeting between Jones and the attorneys for both sides was scheduled for 11:00 a. m., June 14, 1972, but at the request of the assistant district attorney it was postponed, and the defense attorneys were told that they could talk with Jones at the courthouse at 2:00 p. m. A discovery hearing was held at 2:00 p. m. on June 14, but Jones was not present, and the record does not show that appellant made a demand for him to be present. Appellant has not shown that he attempted at any other time prior to trial to talk to Jones.

We cannot conclude that the instruction of the assistant district attorney to the witness, while not to be condoned, denied appellant his Sixth Amendment right to counsel and to a fair trial. If applicable to the facts of this case, we do not conclude that the opinion of the United States Court of Appeals, D.C. Circuit in Gregory v. U. S., 125 U.S.App.D.C. 140, 369 F.2d 185 (1966) is authoritative and requires a reversal of this conviction.

The fourth ground of error alleges that the trial court erred in admitting testimony inferring that the appellant was charged with another criminal offense. One of the defense witnesses testified during cross examination that the picture of appellant used in the photograph lineup had been taken by the Dallas Sheriff’s Office. This photograph (Defense Exhibit 6-H) was a mug shot of appellant from which the numbers in the margin had not been expunged.

Appellant’s reliance on Priest v. State, 162 Tex.Cr.R. 66, 282 S.W.2d 390 is misplaced. In Priest, the State introduced the evidence of a prior police record. The statements of the complaining witness as to Priest’s being in police files as a known pickpocket were of such a prejudicial nature that instruction could not cure the harm.

In the case at bar there is no showing that the picture was taken in connection with any particular offense, nor were any details of any other offense shown. Since this was appellant’s exhibit, no harm is shown.

Ground of error five deals with the questioning of Officer Norris as to whether the appellant had been moved off of his normal police patrol sometime after September 1972.

“Q All right, they got him off the street?
A Yes.”

The objection to this comment was sustained and the jury instructed to disregard. Appellant was indicted for this offense on September 11, 1972. There is no showing that the State was referring to an offense other than the case at bar. In light of the instruction to disregard, no harm is shown.

Ground of error six contends that appellant’s motion for mistrial should have been granted as to the evidence complained of in his two previous grounds of error. We hold that the court adequately protected the appellant’s rights when he instructed the jury to disregard. Cazares v. State, Tex.Cr.App., 488 S.W.2d 110; Guerrero v. State, Tex.Cr.App., 507 S.W.2d 765, and Pringle v. State, Tex.Cr.App., 511 S.W.2d 35.

Ground of error seven also deals with the testimony of Officer Norris. The following occurred:

“Q [Prosecutor] Why did you not put him in a lineup?
A We wanted to give him the benefit of the doubt. If there was a possibility it was not him and he had had—by having a previous record, we wanted to give him _"

An objection was made and the jury was instructed to disregard the answer. This Court has often held that an unresponsive answer is cured by an instruction to disregard. Warren v. State, Tex.Cr.App., 514 S.W.2d 458; Patterson v. State, Tex.Cr.App., 509 S.W.2d 857; Bolden v. State, Tex.Cr.App., 504 S.W.2d 418.

In ground of error eight, appellant complains of the State’s asking Officer Norris if appellant was able to account for his activities on the night in question shortly after his arrest. Although this was an improper question, it was not answered, and an instruction to disregard was given. This question was not of such a damaging or prejudicial nature as to require more than an instruction to disregard to protect appellant’s rights. Kirkpatrick v. State, Tex.Cr. App., 515 S.W.2d 289; Paredes v. State, Tex.Cr.App., 500 S.W.2d 160; Hopkins v. State, Tex.Cr.App., 480 S.W.2d 212.

By ground of error nine, appellant contends that the court erred in declining his motion for mistrial after Officer Norris testified on cross examination by the State that he was the individual who filed a complaint charging this appellant with this particular offense. Unlike Clay v. State, 161 Tex.Cr.R. 351, 276 S.W.2d 843, the officer did not state an opinion as to appellant’s guilt.

Appellant’s contention that this constituted bolstering of the remainder of Norris’ testimony is without merit. Ballew v. State, 161 Tex.Cr.R. 579, 279 S.W.2d 336, relied upon by the appellant, is distinguishable in that the State, over strenuous objection, questioned its own witness from a sworn statement and additionally bolstered his testimony by showing he had twice testified before a grand jury to the same facts.

Here, the fact that appellant was indicted by the grand jury was well known to the jury as well as the fact that Norris was the investigating officer. Out of an abundance of caution, the trial judge sustained appellant’s objection to the question and instructed the jury not to consider the fact that Norris filed the complaint. No error is shown.

Grounds of error ten and eleven complain of the failure of the trial court to submit to the jury appellant’s requested instructions on mistaken identification and expert opinion. Appellant’s requested charge would have told the jury that they should find appellant not guilty if they had a reasonable doubt that appellant was mistakenly identified by the prosecutrix.

Although appellant testified in his own behalf, his testimony only raised the defense of alibi, and the jury was properly charged on this issue. The testimony of the prosecutrix showed she positively identified appellant four times—from a photograph, viewing appellant in the hall of the police station, in a lineup, and in court. The only evidence which would have raised the issue of mistaken identification was properly excluded. See grounds of error 12 and 13, infra. The trial court properly denied the requested instruction. Ward v. State, Tex.Cr.App., 505 S.W.2d 832; Smith v. State, 437 S.W.2d 835; Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848.

The other requested instruction would have told the jury that they were not bound to accept the opinion of any expert witness and that the credibility and reliability of the opinion was in the jury’s sole province.

The court properly instructed the jury that they were the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given the testimony. The requested instruction would have been on the weight of the evidence and was properly refused. Simmons v. State, Tex. Cr.App., 504 S.W.2d 465; Clark v. State, Tex.Cr.App., 500 S.W.2d 107.

In grounds of error twelve and thirteen, appellant complains of the exclusion of evidence that 19 days prior to the offense someone other than appellant attempted to gain entrance to an apartment in the same manner in which appellant was charged with entering prosecutrix’ apartment in the case at bar. As we said in Ferrell v. State, Tex.Cr.App., 429 S.W.2d 901 at page 903:

“Ordinarily, evidence of offenses committed by parties other than accused is inadmissible.”

The proffered evidence is not inconsistent with appellant’s guilt, and the trial court did not err in excluding the evidence. Loy v. State, Tex.Cr.App., 502 S.W.2d 123; Dickson v. State, Tex.Cr.App., 492 S.W.2d 267; Fleck v. State, Tex.Cr.App., 380 S.W.2d 621.

The final two grounds of error concern the testimony of Denise Pack, called by the State in rebuttal to establish that appellant possessed two items similar to those described by the prosecutrix. During her testimony the witness Pack identified a photograph as being of appellant. Out of the presence of the jury, appellant’s father stated that it was not a picture of appellant.

Appellant alleges that the trial court erred in refusing to admit into evidence the photograph and the testimony of appellant’s father. We agree that appellant should have been allowed to impeach the witness with this evidence; however, we cannot conclude that the exclusion of this evidence was error of such magnitude as to require reversal. The witness Pack did not mistakenly identify appellant; she mistakenly identified a picture that even appellant’s father admitted bore a slight resemblance to appellant. Her testimony was only circumstantially corroborative; she was not an identification witness to the offense for which appellant was on trial, and she did not have any information concerning the crime itself.

Finding no reversible error, the judgment is affirmed.

      . This case is distinguishable from Holt v. U. S., 342 F.2d 163 (5th Cir. 1965), wherein the court held it was reversible error to exclude evidence of two prior offenses by a man who resembled the defendant. In Holt, the excluded evidence tended to show that defendant had twice before been mistakenly identified as the perpetrator of similar crimes and the evidence was both material and relevant as to his contention that he was once again the victim of mistaken identity. In the case at bar the proffered testimony did not establish the identity of the perpetrator of the similar attempted offense, and appellant was not mistakenly identified as the perpetrator of that crime.


author: ONION, Presiding Judge.

text:
    Randle Ross WATSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50912.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.
    Rehearing Denied March 3, 1976.

      Barbara C. Crampton and Robert G. Estrada, Wichita Falls, for appellant.
    Timothy 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

ONION, Presiding Judge.

This appeal is taken from a conviction for robbery. The punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.42, by the allegations and proof of a prior felony conviction for the sale of heroin, was assessed at forty (40) years.

At the outset, we shall consider the request of appellant’s counsel that we consider as unassigned error “in the interest of justice” the indictment is fundamentally defective. Appellant contends that the failure to allege in the first paragraph of the indictment the ownership of the property taken in the robbery renders the indictment void. Reliance is had upon Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975), and Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973). This reliance is misplaced as those cases dealt with robbery indictments drafted under the former Penal Code. Only recently we have held, however, that the failure of a robbery indictment drafted under the new and present Penal Code to allege to whom the property or money taken belonged did not render the indictment defective. See Reese v. State, 531 S.W.2d 638 (Tex.Cr.App. delivered Jan. 21, 1976).

Appellant’s contention is without merit.

Appellant also complains that the court erred in refusing to strike the enhancement paragraph of the indictment and later in charging the jury on enhanced punishment under V.T.C.A. Penal Code, Sec. 12.42.

We have read the argument advanced with great care in an attempt to understand appellant’s precise contention. It appears to be appellant’s contention that said Sec. 12.42 (Penalties for Repeat and Habitual Felony Offenders) is a general statute on enhancement and must yield to special statutes on enhancement involving the subject matter in controversy. Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958), is cited in support thereof. In Edwards the court held that the statute dealing with subsequent offense of driving while intoxicated under the former Penal Code was a special statute which alone governed the punishment to be assessed in such cases and the general repetition of offenses statutes (Articles 61-63, Vernon’s Ann.C.C.P., 1925) were not applicable to prosecution under the special statute. Likewise, in Granado v. State, 168 Tex.Cr.R. 525, 329 S.W.2d 864 (1959), it was held the Uniform Narcotic Drug Act (Article 725b, Vernon’s Ann.P.C.) was a special statute and that Article 63, Vernon’s Ann.P.C., a general statute, must yield to the special statute which provided penalties for second or subsequent offenses under the special statute. See also Willeford v. State, 454 S.W.2d 745 (Tex.Cr.App.1970); Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971); Bell v. State, 504 S.W.2d 498 (Tex.Cr.App.1974); Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Ex parte Giacona, 518 S.W.2d 832 (Tex.Cr.App.1975).

Appellant further argues that V.T.C.A. Penal Code, Sec. 1.05, provides that “the rule that a penal statute is to be strictly construed does not apply to this code” and that such statute must be contrasted with the earlier decisional law that the general enhancement statutes under the former Code should be strictly construed. See 16 Tex.Jur.2d, Criminal Law, Section 404; Garcia v. State, 145 S.W.2d 180 (Tex.Cr.App.1940). Appellant further argues that Article 37.09, Vernon’s Ann.C.C.P., was amended in 1973 to “conform” to the new Penal Code and was changed from a specific statute entitled “Offenses Consisting of Degrees” to a general statute entitled “Lesser Included Offense,” and that his contention must be viewed in light of this amendment.

With this argument as background, appellant further argues that while robbery and theft are found in different chapters, it has long been established that robbery is only an aggravated form of theft; that V.T.C.A. Penal Code, Sec. 31.03, creates a single new offense, which in general terms encompasses all acquisitive conduct previously made unlawful in several separate statutes (See V.T.C.A. Penal Code, Sec. 31.-02, Consolidation of Theft Offenses); that the term “single offense” as used in said Sec. 31.02 with reference to the offense defined in said Sec. 31.03 was meant by the Legislature to refer to the same “theft” mentioned in V.T.C.A. Penal Code, Sec. 29.-02, defining “robbery,” wherein it is stated in part, “[I]f, in the course of committing theft as defined in Chapter 31 of this Code . ”; that the theft offense has its own special enhancement provisions, that theft may be enhanced depending on the value of property, the type of property and repetition of offenses. See generally V.T. C.A. Penal Code, Secs. 31.03, 31.04, 31.05, 31.07. Appellant likewise points out that robbery as defined by V.T.C.A. Penal Code, Sec. 29.02, is a felony of the second degree and that if a person commits such a robbery and (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon, the offense becomes aggravated robbery and is a felony of the first degree carrying an enhanced penalty. See V.T.C.A. Penal Code, Sec. 29.03. Appellant argues that this is a special enhancement statute relating to robbery and it controls over said See. 12.42. Vie cannot agree.

First, we observe that V.T.C.A. Penal Code, Sec. 31.02, (Consolidation of Theft Offenses) reads:

“Theft as defined in Section 31.03 of this code constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.”

It is clear from the express statement in the statute that robbery was not included in the consolidation of “theft” offenses.

Further, while it has been held under the former Penal Code that robbery is an aggravated form of theft, Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165 (1960), there have always been some distinguishing features between theft and robbery. See 50 Tex.Jur.2d, Robbery, Sec. 2, p. 162. Under the new Penal Code, there are still distinguishing features. Only recently in Reese v. State, supra, we took note of Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974), where we said that “the actual commission of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same.” See also Watts v. State, 516 S.W.2d 414 (Tex.Cr.App.1974). This is so because the statute defining robbery (V.T.C.A. Penal Code, Sec. 29.02) used the term “in the course of committing theft.” That phrase as defined in V.T.C.A. Penal Code, Sec. 29.01, “means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.”

It is clear that under the new Penal Code there is no requirement that in every robbery case there must be a fraudulent taking of property as an essential element of the case as was required under the former Code. See Article 1408, Vernon’s Ann. P.C., 1925.

Further, we observed in Reese that in robbery, unlike theft, “if the owner parts with his property because of an assault, fear or violence his consent or want of consent is irrelevant . . .

In addition to the distinguishing features between the two offenses, the provisions of V.T.C.A. Penal Code, Secs. 29.02 and 29.03, defining robbery (a second degree felony) and aggravated robbery are somewhat similar to the provisions of Article 1408, Vernon’s Ann.P.C., 1925, defining robbery, a non-capital offense, and prescribing penalties and further providing that when a firearm or other deadly weapon is used the offense becomes a capital offense. While a capital offense had to be enhanced under Article 64, Vernon’s Ann.P.C., and could not be used in connection with Articles 62 and 63, Vernon’s Ann.P.C. (non-capital offenses), and while a non-capital offense had to be enhanced under these latter statutes and not under Article 64, Vernon’s Ann. P.C., we know of no case under the old Code which held that because of the aggravation of penalty by the use of a firearm or other deadly weapon the provision of the statute was such a special enhancement provision that the conviction of ordinary robbery could not be enhanced under Articles 62 and 63, supra, or that a conviction for robbery by firearms could not be enhanced under Article 64, supra. See and cf. Rinehart v. State, 463 S.W.2d 216 (Tex.Cr.App.1971); Johnson v. State, 463 S.W.2d 736 (Tex.Cr.App.1971); Bradley v. State, 456 S.W.2d 923 (Tex.Cr.App.1970).

Likewise, we hold that punishment for robbery or aggravated robbery may be enhanced under the provisions of said Sec. 12.42, supra, a general statute, and is not governed by any special enhancement provision.

The sufficiency of the evidence is not challenged. It will be necessary to state the facts briefly in order to properly appraise the next grounds of error.

On August 14, 1974, about 5:45 p. m., it was shown the appellant entered Wheeler’s Phillips 66 service station located in Wichita Falls and told the attendant, Dale Blain, to give him “all the money.” Blain was told to lie on the floor of the station with his head turned the other way and that appellant “wasn’t going to fool with him.” He told Blain, “I’ll kill you twenty to twenty-five years from now if you don’t keep your head turned the other way.” The appellant then took approximately $150 out of the drawer.

A customer, David Pennyeuff, drove up to the station during the course of the robbery. The appellant went out pretending to be the attendant. Blain then stepped outside and stated, “I’ve been robbed.” The appellant then grabbed the customer’s $10 bill out of the customer’s hand and fled from the station. The customer Pennyeuff followed the appellant and saw him standing on a corner about one block from the station. He immediately returned to the station and met a police officer and gave a description of the appellant. Pennyeuff followed the officer at his direction and four or five blocks later the officer stopped where the appellant had been arrested by another officer while riding in a car in which the appellant had hitched a ride. The money was recovered and Pennyeuff identified the appellant.

Appellant complains of the admission of hearsay statements made by Pennyeuff to the officer upon his return to the station from following the appellant and which concerned appellant’s description. He further complains of Pennycuff’s statements in identifying him at the scene of the arrest.

We have previously held that a description of the offender given by the victim of a crime to police officers immediately after a crime is admissible as a res gestae statement. See Pilcher v. State, 503 S.W.2d 547 (Tex.Cr.App.1974), and Ricondo v. State, 475 S.W.2d 793 (Tex.Cr.App.1971). After the appellant grabbed the $10 bill from the witness Pennyeuff, he was followed by Pennyeuff, who observed him standing on a corner one block away. Pen- • nycuff gave his statement to officers immediately upon his return to the station. The description of appellant so given was admissible.

Pennyeuff then followed the officer four or five blocks where appellant had been arrested. There Pennyeuff identified the appellant as the man he had seen in the service station by saying “Yes” when the officer asked if appellant was the man who had taken Pennycuff’s money. The statement was made within five or ten minutes of the robbery offense following an exciting event, a chase, etc. The statement was admissible as res gestae of the arrest. See Article 38.22, Vernon’s Ann.C.C.P. See also Steele v. State, 496 S.W.2d 66 (Tex.Cr.App.1973); Solis v. State, 492 S.W.2d 561 (Tex.Cr.App.1973); Norwood v. State, 486 S.W.2d 776 (Tex.Cr.App.1972); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972); Evans v. State, 480 S.W.2d 387 (Tex.Cr.App.1972).

Appellant further complains of the court’s action in overruling a mistrial motion after two police officer witnesses made unresponsive answers referring to an “armed robbery.” The contention is based on the fact that the evidence did not show the appellant was armed at the time of the robbery. The mistrial motion to which appellant calls attention was made when the second officer, Dan Best, was testifying on direct examination. Best was asked if while on duty on the date in question anything unusual occurred. The record then reflects:

“A. Yes, sir, it did.
“Q. Would you tell the Jury what that was?
“A. I was advised of an armed robbery that had just occurred.”

Counsel objected to the use of “armed robbery,” and the court instructed the jury to disregard the remark, but overruled the mistrial motion.

An examination of the record reflects that earlier when Officer Horton was testifying he related he was on duty “when an armed robbery occurred.” The next question by the prosecutor referred to Horton receiving information about an armed robbery. To such testimony and question there was no objection. Subsequently, Horton, in describing his actions in stopping a vehicle, stated he saw a subject in the back seat “who fit the description of the suspect that was given out on the armed robbery.” The objection offered was stated to be based on an earlier objection, and appellant now candidly admits that the trial court could have been misled as to the nature of the objection. Still later, on cross-examination Horton made reference to “an armed robbery.” The objection to such phrase was sustained, and the jury was instructed to disregard the statement. The mistrial motion then made was overruled.

It is noted that neither officer purported to be an eyewitness to the actual robbery, but only indicated the reason they were investigating. The record does not reflect that appellant was armed at the time of the offense. He was charged with robbery under V.T.C.A. Penal Code, Sec. 29.02, and not aggravated robbery under V.T.C.A. Penal Code, Sec. 29.03, and it was the robbery charge that was submitted to the jury.

Further, there was no objection to the first two references to “armed robbery.” It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were shown by facts to which no objection was addressed. Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974); White v. State, 486 S.W.2d 377 (Tex.Cr.App.1972); Merx v. State, 450 S.W.2d 658 (Tex.Cr.App.1970).

As appellant’s counsel candidly admits, the objection to another reference was not sufficient to bring to the trial court’s attention the error now complained of on appeal. Nothing is presented for review as to that reference. Campbell v. State, 521 S.W.2d 636 (Tex.Cr.App.1975); Wood v. State, 511 S.W.2d 37 (Tex.Cr.App.1974); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974).

On the other two occasions, the court sustained the objection and instructed the jury to disregard. It is well established that a jury instruction to disregard a statement or remark will ordinarily cure the error, if any. Brown v. State, 516 S.W.2d 145 (Tex.Cr.App.1974); Zanders v. State, 515 S.W.2d 907 (Tex.Cr.App.1974); Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

We conclude that the court did not err in denying either one of the mistrial motions made after the objection was sustained and a jury instruction given.

The judgment is affirmed.

      . See Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165 (1960); 50 Tex.Jur.2d, Robbery, Sec. 2, p. 162.

      . The question of whether V.T.C.A. Penal Code, Sec. 31.03(d)(2)(B) and (d)(4)(C), would be special enhancement provisions controlling in theft cases over any general provisions in the Penal Code is not here involved and we do not pass on that question at this time.


text:
    Richard GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 50932.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.

      Ruben Sandoval, San Antonio, for appellant.
    Ted Butler, Dist. Atty. and Fred Rodriguez, John Hrncir and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; the punishment assessed is imprisonment for 10 years.

The appellant complains that he was not permitted to discredit and to show the interest, bias, and motive of the witness Luis Hernandez by cross-examination and by showing his arrest record and that there was an indictment pending against him.

Hernandez was the only known eyewitness to the offense for which the appellant was convicted. Hernandez testified that the appellant and two other men had attempted to rob him on a parking lot, but when he showed them that he had no money they assaulted, robbed, and killed another man on the same parking lot.

Prior to trial the State filed a motion in limine requesting the court not to permit defense counsel to show that there was a pending indictment and the arrest record of the witness Hernandez. Prior to Hernandez’s testimony before the jury a hearing was held in the absence of the jury. Hernandez testified there was a burglary indictment pending against him in Bexar County. He also testified that he had been arrested four or five times — three or four times for being drunk and one time for disturbing the peace. He had not been convicted of a felony or a misdemeanor involving moral turpitude.

Immediately after this hearing the court asked defense counsel if he wanted to present any argument before the court ruled on the State’s motion. Defense counsel responded:

“We still feel that this man’s having been in trouble not once or twice but numerous times, and even though they may not involve moral turpitude, we feel that we should be allowed to go into his arrest record if nothing else. We won’t go into his untried indictment at this point, but I feel that we ought to be allowed to go into his arrest record, Your Honor.
“THE COURT: All right, the State’s Motion in Limine is granted. The defense is instructed not to go into any arrests of the defendant or any pending indictment — I mean, against the witness or any pending indictment against the witness unless it is shown that it is otherwise admissible. Such testimony is not to be admitted before the jury unless otherwise brought out by the State. All right, bring the jury.
“(Thereupon, the jury returned into open Court.)”

In our review of the record, we are unable to find that defense counsel, after telling the court “We won’t go into his untried indictment at this point . . . ever again requested or attempted to cross-examine the witness or to prove that there was an indictment pending against him. It appears that counsel abandoned any attempt to get before the jury evidence that there was an indictment pending against this witness. Nothing is presented for review.

We also observe that even if defense counsel had not abandoned his attempt to gain admission of this evidence the record in this case is more like that in Luna v. Beto, 395 F.2d 35 (5th Cir. en banc 1968) and is unlike those in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Evans v. State and Meyer v. State, 519 S.W.2d 868 (Tex.Cr.App.1975). There is only proof that an indictment was pending; there was no attempt made to show that the pending indictment was being used to force the witness’ testimony or that he expected more favorable treatment in his pending case because of his testimony in this case. Luna v. Beto, supra (footnote # 5). The witness’ arrest record was not admissible.

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Billy Wayne DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 50942
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.

      W. John Allison, Jr., Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Dan Garrigan, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. After the jury returned a verdict of guilty, punishment was assessed by the court at thirty years. The indictment alleged the offense occurred on or about September 26,1974, and the record reflects that trial was in February, 1975.

In his first two grounds of error, appellant contends that the court erred in failing to quash the indictment because the indictment did not allege that the property taken in the robbery was without effective consent and failed to aver ownership of the property taken in the robbery.

Appellant’s position is bottomed on the theory that aggravated robbery is the most aggravated form of theft and in support of this position points to V.T.C.A. Penal Code, Sec. 29.02 defining robbery, which begins by stating, “A person commits an offense if, in the course of committing theft as defined in Chapter 31 . .” Appellant reasons that the elements of theft set forth in V.T. C.A. Penal Code, Sec. 31.03 necessarily become elements of the offense of robbery and must be alleged in the indictment.

The decisions of this Court in Earl v. State, 514 S.W.2d 273 and Reese v. State, 531 S.W.2d 638 (1976) are adverse to appellant’s argument. In Earl and Reese, it was stated:

“Although the proof [in a robbery case] will involve proving up a theft or attempted theft, the elements of the particular theft (see Chapter 31, and specifically Secs. 31.02 and 31.03, V.T.C.A. Penal Code) or attempted theft (see Sec. 15.01, V.T.C.A. Penal Code), need not be alleged in the indictment.”

Further, Art. 21.13, V.A.C.C.P. provides:

“An indictment for an act done with intent to commit some other offense may charge in general terms the commission of such act with intent to commit such other offense.”

We find no error in the court’s failure to quash the indictment for failure of the aggravated robbery indictment to allege certain elements of the offense of theft.

Appellant contends the court erred in permitting the State to amend the indictment by striking certain words within the indictment.

The pertinent portion of the indictment before amendment recited that appellant did

“then and there, while in the course of committing theft of one automobile, Four Hundred Fifty Dollars ($450.00) current money of the United States of America, hereinafter called ‘the Property’ from William T. Miller with intent to obtain and maintain control of the property, and by using and exhibiting a deadly weapon, namely a knife knowingly and intentionally threaten and place William T. Miller in fear of imminent bodily injury and death.”

. The record reflects that appellant filed a motion to quash in which it was contended that the indictment was ambiguous in that he was unable to tell whether he was charged with taking an automobile worth $450.00, an automobile and $450.00 in currency or only $450.00 in currency. An order by the court reflects that the “State’s motion to strike certain words from the indictment having been granted, Defendant’s Motion to Quash is Denied, to which the Defendant excepts.” The following was deleted from the indictment, “Four Hundred Fifty Dollars ($450.00) current money of the United States of America.”

Appellant urges that the portion stricken from the indictment was a matter of substance and could not be deleted. Article 28.10, V.A.C.C.P. provides:

“Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.”

It is not contended that the amendment in question did not come before announcements of ready at the trial on its merits.

In Bowie v. State, Tex.Cr.App., 401 S.W.2d 829, relied on by appellant, a conviction for burglary was held void where the trial court had reduced an indictment charging burglary of a private residence at night to burglary on the motion of the district attorney. The effect of the trial court’s action in granting the district attorney’s motion in Bowie was to change the offense charged in the indictment since burglary (as defined in Arts. 1389 and 1390, V.A.P.C.) and burglary of a private residence at night (as defined in Art. 1391, V.A.P.C.) are distinct and separate offenses. Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228.

When not descriptive of that which is legally essential to the validity of an indictment or information, unnecessary words may be rejected as surplusage. Collins v. State, Tex.Cr.App., 500 S.W.2d 168; Cohen v. State, Tex.Cr.App., 479 S.W.2d 950; Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29.

In Burrell v. State, 526 S.W.2d 799, this Court recognized the foregoing rule relative to unnecessary words in an indictment being rejected as surplusage, but noted:

“There is, however, a well recognized exception to the general rule discussed above, and that is where the unnecessary matter is descriptive of that which is legally essential to charge a crime it must be proven as alleged, even though needlessly stated. See 13 Texas Law Review 489 (note); 1 Branch’s Ann.P.C., 2d ed., Sec. 518, pp. 491-498, and cases there cited.
“It is well established that where a person, place or thing necessary to be mentioned in the indictment is described with unnecessary particularity, all circumstances of description must be proven, Smith v. State, 107 Tex.Cr.R. 511, 298 S.W. 286 (1927), and cannot be rejected as surplusage, for they are thus made essential to the identity. Maples v. State, 124 Tex.Cr.R. 478, 63 S.W.2d 855 (1933). Thus, if the pleader makes unnecessary allegations descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence. McClure v. State, 163 Tex.Cr.R. 650, 296 S.W.2d 263 (1956).”

In the instant case, it was not necessary for the indictment charging robbery to allege the items taken “while in the course of committing theft.” Earl v. State, supra. The question then becomes one of whether having alleged the items of property taken it became necessary for the State to prove same.

In a robbery prosecution it is not necessary to prove that all the property alleged was taken. Proof that any part thereof was taken is sufficient. Sirls v. State, Tex.Cr.App., 511 S.W.2d 55; Smallwood v. State, Tex.Cr.App., 464 S.W.2d 846; Hoover v. State, Tex.Cr.App., 390 S.W.2d 758. While the foregoing cases were decided under the old Penal Code, we perceive no difference in this respect under the new Penal Code. It follows that in the instant case it was not necessary to prove that both the “automobile” and “Pour Hundred Fifty Dollars ($450.00) current money of the United States” were taken. Proof that either was taken would suffice.

Numerous cases are reviewed in Burrell which address the subject of what is a matter of form and what is a matter of substance. In the early case of Wade v. State, 52 Tex.Cr.R. 619, 108 S.W. 677 (1908), it was stated:

“This question of requiring the state to prove the particular unnecessary description is so familiarly known to the profession and to the jurisprudence that we deem it unnecessary to cite authorities.”

In Wade, it was held error to amend the indictment by deleting certain dates upon which a court order was published which created the local option law the defendant was charged with violating. In McDonald v. State, 138 Tex.Cr.R. 610, 137 S.W.2d 1046 (1940), the amendment to the indictment reduced the State’s burden of proof from gross negligence to ordinary negligence and constituted an amendment of substance. In addition, Burrell cites numerous cases which hold that an allegation of the means used or means by which an assault was committed, though unnecessary, must be proved substantially as alleged. Arbetter v. State, 79 Tex.Cr.R. 487, 186 S.W. 769 (1916); Maxwell v. State, 66 Tex.Cr.R. 258, 145 S.W. 1190 (1912). Johnson v. State, Tex.Cr.App., 384 S.W.2d 885 (1964) held that an indictment for assault with intent to murder need not allege means used or manner of use, but when the words “shoot at” were used in the indictment, such use did not vitiate the indictment, but the State had the burden of proving that allegation. In Burrell, this Court concluded that an amendment to an assault to murder a peace officer indictment which allowed the deletion of “with his malice aforethought” and “by shooting with a gun,” although unnecessary allegations, were descriptive of the offense, and their deletion from the indictment was an amendment of a matter of substance.

The words deleted in the instant case, “Four Hundred Fifty Dollars ($450.00) current money of the United States of America,” were not necessary to be alleged, nor was it necessary that such allegation be proved even though such averment appear in the indictment. Under Sirls v. State, supra, and Smallwood v. State, supra, proof that any part of the property alleged to have been taken in a robbery indictment is sufficient. After the amendment there remained the allegation that one automobile was taken and there is no contention or suggestion that this allegation was not proven. Thus, the distinguishing factor in the instant case from many of the cases reviewed is that the unnecessary allegation (deleted by amendment) was not required to be proven by the State (even though alleged). Unlike Bowie v. State, supra, relied on by appellant, and McDonald v. State, supra, discussed in Burrell, the offense charged in the instant case was not changed nor was the burden of proof decreased by the deletion. We cannot conclude that the words deleted, “Four Hundred Fifty Dollars ($450.00) current money of the United States of America,” can be characterized as descriptive of the offense like the words deleted by amendment in Burrell. We find that the deletion of the words in question did not constitute an amendment of substance and that the court did not err in granting such amendment before announcement of ready for trial upon the merits by both parties.

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

William T. Miller testified that on the date in question appellant and another man approached him while he was in his car on Skillman Street “just south of Kingsley Road” in Dallas. The men asked for a ride, Miller agreed, and the two men got in the car, appellant on the passenger’s side, the other man in the back. The record reflects the following testimony of Miller relative to the ensuing events:

“A. Well, we had just been driving a short time, probably less than two minutes, when, at a speed of about forty miles an hour when the man in the back seat between us tapped me on the shoulder and pointed down into my lap and this man here [appellant] had a knife pointed into my ribs, my side.
“A. And said to me, keep cool man and you won’t get hurt and then the man in the back of me said keep cool.
“A. We proceeded south on Skillman and as we were approaching the shopper area there in Skillman and Abrams, the Defendant said turn right on Abrams.
“Q. Okay, did you do that?
“A. Yes.
“Q. What happened when you turned right?
“A. Well, I felt my life was in danger and I realized that I must get out of the car so I made a hard, took the steering wheel and made a hard right with the steering wheel, leaned away from the knife and hit the door handle and fell out of the car.”

Miller further testified that he did not consent to the taking of his car and that he ran to call the police immediately after jumping from the vehicle.

The record reflects that appellant was involved in a wreck in Miller’s car the following day and upon questioning by the investigating officer appellant stated that he was the owner of the car.

Without citation of authority, appellant urges the evidence was insufficient in that it showed that the taking of the automobile did not occur as the result of the pointing of a knife toward Miller but occurred after Miller jumped out of the vehicle.

In Glasper v. State, Tex.Cr.App., 486 S.W.2d 350, it was stated:

“Appellant further argues that since the cash register was taken after the victim fled the scene, there is not a sufficient ‘nexus’ between the antecedent violence and the parting with the property to constitute robbery by assault. We do not agree.
“The fact that the victim was able to break free and run for help prior to the actual taking of the cash register is of no consequence. But for the assault and consequential fleeing there would have been no relinquishment of the property, [authorities omitted]”

While the conviction in Glasper was under the old Penal Code, we find nothing in the robbery sections in the new Penal Code under which appellant was tried which would require a departure from the holding in Glasper. See V.T.C.A. Penal Code, Sections 29.02 and 29.03. We find our holding in Glasper to be dispositive of appellant’s contention.

We find the evidence sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.

      . The indictments in Earl v. State, supra, and Reese v. State, supra, appear to be identical to the indictment in the instant case. In those cases, it was noted that the indictment was no model and reference was made to exemplary forms in Morrison and Blackwell, New Texas Penal Code Forms, p. 33, Sec. 29.03B, Aggravated Robbery — With a Deadly Weapon; McClung, Jury Charges for Texas Criminal Practice, rev.ed., p. Ind. 19.

      . The indictment, as amended, reads in part: “ . . . while in the course of committing theft of one automobile, Four Hundred Fifty Dollars ($450.00) current money of the United States of America, hereinafter called ‘the Property’ from William T. Miller with intent to obtain and maintain control of the property, and by using and exhibiting a deadly weapon, namely a knife knowingly and intentionally threaten and place William T. Miller in fear of imminent bodily injury and death.”


text:
    Ronald Kent FRANKS, Appellant, v. The STATE of Texas, Appellee.
    No. 50537.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.
    Lawrence T. Newman, 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 ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

This is a conviction for robbery by assault with a firearm, wherein punishment, enhanced under Article 62, Vernon’s Ann.P.C., 1925, was assessed at life, was affirmed in a per curiam opinion on November 19, 1975. On consideration of appellant’s motion for leave to file a motion for rehearing the court agreed sua sponte that the motion should be granted and rehearing had in light of the indictment.

The indictment in the instant case contains the same fundamental defect as that found in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973), in that it fails to allege “to whom the property allegedly taken belonged.” See also Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App., delivered November 5, 1975); Arline v. State, 529 S.W.2d 73 (Tex.Cr.App.1975); Ainsworth v. State, 531 S.W.2d 613 (Tex.Cr.App., delivered November 5, 1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App., delivered November 5, 1975).

The appellant’s motion for rehearing is granted, the order of affirmance is withdrawn, and the judgment is reversed and the cause remanded.


author: DALLY, Commissioner. ONION, Presiding Judge

text:
    Ex parte Herman P. BEIERSDORF.
    No. 50335.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    Herman P. Beiersdorf, pro se.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction habeas corpus proceeding. See Article 11.07, V.A.C.C.P., and Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

Petitioner, after the state withdrew its notices that it intended to seek the death penalty, waived a jury trial, entered pleas of guilty and was convicted on January 10, 1972, for two separate offenses of murder; the court assessed punishment at life imprisonment in each case.

Petitioner contends that the trial court improperly admonished him and failed to inquire into his sanity prior to accepting his pleas of guilty. The trial court admonished the petitioner that “. . . upon your plea of guilty the court would have to find you guilty and assess your penalty at some term in the State Department of Corrections not to exceed life . . . ” The applicable range of punishment was imprisonment for life or for any term of years not less than two. Article 1257, V.A.P.C. The punishment of death was not applicable since the state had withdrawn its notices of intent to seek the death penalty.

In Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975), the court held that if a trial court in admonishing an accused prior to accepting a guilty plea misstates the range of possible punishment, but the accused is not misled to his prejudice by such erroneous admonishment, the error is harmless. Petitioner’s punishment was set within the range erroneously stated by the trial judge; he was not misled to his prejudice. See Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974); Jorden v. State, 500 S.W.2d 117 (Tex.Cr.App.1973); cf. Donahue v. State, 456 S.W.2d 926 (Tex.Cr.App.1970).

Petitioner further contends that contrary to the requirements of Article 26.13, Y.A.C.C.P., the trial court failed to determine if the plea of guilty was freely given, unprompted by fear or persuasion. In Ex parte Taylor, 522 S.W.2d 479 (Tex.Cr.App.1975), it was held that “in a collateral attack upon a plea of guilty there must be a showing that a defendant was prejudiced or injured for the failure of the trial court to fully comply with Article 26.13, supra.” See also Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975). The petitioner has made no showing of harm; the error is therefore harmless.

Petitioner lastly contends that the court erred in failing to inquire into his sanity prior to taking the pleas of guilty. The record shows that the trial judge stated, “All right you appear to be sane. I’ll accept your plea;” he also stated, “You appear to be sane. Have a seat.” No issue was made at the time the pleas of guilty were entered regarding the appellant’s sanity; therefore, his contention is without merit. See Kane v. State, 481 S.W.2d 808 (Tex.Cr.App.1972); Ring v. State, 450 S.W.2d 85 (Tex.Cr.App.1970); Perez v. State, 478 S.W.2d 551 (Tex.Cr.App.1972).

The relief sought is denied.

Opinion approved by the Court.

ROBERTS, J., concurs in the result.

ONION, Presiding Judge

(dissenting).

It is petitioner’s contention that the court improperly admonished him in accordance with Article 26.13, Vernon’s Ann.C.C.P., in effect at the time he entered guilty pleas to two murder charges on January 10, 1972. I agree.

Here is all the record reflects in the way of admonishment in the two cases:

“THE COURT: Herman, you have heard the reading of the indictment. What is your plea?
“THE DEFENDANT: Guilty.
“THE COURT: You understand upon your plea of guilty the Court would have to find you guilty and assess your penalty at some term in the State Department of Corrections not to exceed life, you understand that?
“THE DEFENDANT: Yes, I do, your Honor.
“THE COURT: All right. You appear to be sane. I’ll accept your plea.
“Next one. You’re going to try both of them together?
“MR. McEVOY: Yes, your Honor.
“THE COURT: All right. 4606.
(Whereupon, the indictment in No. 4606 was read by Mr. Kitzman.)
“THE COURT: Herman, you have heard the reading of the indictment. What is your plea?
“THE DEFENDANT: Guilty.
“THE COURT: You understand upon your plea of guilty, the Court would have to find you guilty and assess your penalty at some term not more than life in prison, you understand that?
“THE DEFENDANT: Yes, I do.
“THE COURT: You appear to be sane. Have a seat.
“Offer your proof.”

It is quickly observed that there was no inquiry as to whether the pleas were prompted by “any consideration of fear,” “any persuasion,” or by “delusive hope of pardon,” nor was there any inquiry as to “force,” “coercion,” “promise,” and the court took no steps to insure a record to show that the guilty pleas were freely, voluntarily and intelligently entered.

Further, the court did not properly admonish as to the proper range of punishment, but only mentioned the outer limits of the penalty. This practice, approved by the majority, simply means that the lazy trial judge will state, with a wave of the hand, “You can get life or 99 years or something like that,” and if the punishment is that or less the error is harmless. See Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975), and other cases cited by the majority.

As the United States Supreme Court (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274—1969) and the American Bar Association (Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Sec. 1^4) move toward greater formality and uniformity in the guilty plea process in order to insure due process, Texas, by virtue of the majority of this court, moves in the opposite direction.

For the failure to comply with the mandatory provisions of Article 26.13, supra, I would grant the relief sought and hold, as this court has for many years, that the questions here involved can be raised by collateral attack without a showing of harm or prejudice. See my dissenting opinion on rehearing in Ex parte Taylor, 522 S.W.2d 479 at p. 481 (Tex.Cr.App.1975). See also Bosworth v. State, 510 S.W.2d 334 (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); Pinson v. State, 530 S.W.2d 946 (Tex.Cr.App.1975).

For the reasons stated, I dissent.

      . Article 26.13, Vernon’s Ann.C.C.P., in effect at the time of trial, reads as follows:
      “If the defendant pleads guilty, or enters a plea of nolo contendere he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is sane, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.”


author: ODOM, Judge.

text:
    Garland Charles SHERMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 50799.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.

      Ebb B. Mobley, Longview, Court appointed on appeal, for appellant.
    Odis R. Hill, Dist. Atty., Alvin G. Khoury, Asst. Dist. Atty., Longview, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for murder. A jury assessed punishment at life imprisonment.

Appellant contends that the evidence was insufficient to support the trial court’s finding that his confession was voluntary and therefore it was error to admit the same into evidence. It will be seen that appellant’s contentions are correct, and the judgment must be reversed upon the authority of Farr v. State, Tex.Cr.App., 519 S.W.2d 876, and the authorities there cited.

A pre-trial hearing to determine volun-tariness was conducted in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Lopez v. State, Tex.Cr.App., 384 S.W.2d 345; and Article 38.22, V.A.C.C.P. At the conclusion of the hearing, the trial court found that the confession of appellant was freely and voluntarily made, that there was no coercion or mistreatment exercised upon him, that no promises or threats were made to him, and that the confession was admissible in evidence. We must determine from the record if the court abused its discretion by so finding.

The record of the hearing reflects that appellant was arrested in Oklahoma on April 28, 1974, the day after he allegedly committed the offense. He waived extradition proceedings, was returned to Gregg County on May 30,1974, and was arraigned before a magistrate the following day. The magistrate advised him of his rights, including the right to counsel, but appointed no attorney to represent him on the capital offense with which he was charged because, the magistrate testified, he did not request an attorney. No attorney was appointed to represent appellant until July 12, 1974.

Appellant testified that except for one visit to the hospital he was held incommunicado in his jail cell between May 30, when he was returned to the Gregg County jail, and June 28, when he signed a statement amounting to a full confession of the offense of murder. He said that he was denied access to a telephone and received no visitors except police officers.

During the two and one-half month interval between his arrest and the appointment of counsel appellant was interrogated on numerous occasions. Three officers were present at the signing of the confession on June 28: deputies Frank Odom and Bill Roach and Chief Deputy Jim Cochran. Appellant testified at the pre-trial hearing that it was Cochran who coerced the confession:

“Q. [by defense attorney] Did you on June 28, 1974, sign this statement?
“A. [appellant] Yes, sir.
“Q. Why did you sign it on that date? What were the circumstances?
“A. Because they had told me — uh—
“Q. Now when you say ‘they’, I want names.
“A. Uh, Chief Cochran told me that he was going to ask for the death penalty and that he was sure he could get it and that he was going to also ask the D.A. which he was sure he could get that, too, to indict me on the habitual criminal act.
“Q. Did you have any alternative for not signing that statement when you signed it, Sherman? I mean, of course you could have refused to sign it. Why did you sign that statement that day?
“A. I signed it because I thought maybe I would get the death penalty. That’s the reason why. The electric chair. That’s what Chief Cochran—
“Q. Did you believe that?
“A. Yes, sir.”

Cochran did not testify at the pre-trial hearing. His absence was wholly unexplained. Odom and Roach did testify. Neither denied that Cochran had coerced appellant to confess. Roach merely denied that he himself had threatened, coerced, or intimidated appellant. He further stated that he repeated the Miranda warnings to appellant the day the confession was given. He denied that appellant had requested an attorney.

Odom testified that no one in his presence had coerced, intimidated, or forced appellant to sign the confession. He also stated that he never interrogated the appellant, that he did not know who had, and that he was present only for the ten to twenty minute period immediately preceding the signing of the confession.

Appellant, therefore, in effect testified that he signed the confession because Cochran had convinced him he would receive the death penalty if he refused. He further testified that he continually told Cochran he wanted to talk to an attorney prior to signing any statement, but Cochran refused. Neither of the officers who testified at the hearing denied or could deny either assertion because there was no showing that either was present when the statements were allegedly made. Cochran, who could have denied the assertions, inexplicably failed to testify. Therefore, under any standard of the State’s burden of proof, the trial court abused its discretion in overruling appellant’s motion to suppress because appellant’s allegations of coercion were not contradicted. This case is squarely within the holding of Farr v. State, Tex.Cr.App., 519 S.W.2d 876. The confession should not have been entered into evidence.

For failure of the State to fulfill its burden of showing that appellant’s confession was voluntary, the judgment is reversed and the cause is remanded.

      . Cf. Farr v. State, Tex.Cr.App., 519 S.W.2d 876, 880 n. 4: “Had the police officers testified and denied any coercion or someone present at this incident denied any use of force, thus contradicting appellant’s testimony, the trial judge as trier of fact could have determined the confession to be voluntary.” (Emphasis added)

      . It should be understood that if the State had presented a reasonable explanation of Cochran’s failure to testify, such as his death or their inability to locate him, the trial court would have been free to disbelieve appellant’s testimony. When the State neither placed Cochran on the stand nor explained his absence, the obvious inference is that he did not testify because he could not deny appellant’s allegations. See Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). No such inference could be made, however, if there were an explanation of the absence of the witness.


text:
    Ray Owen MOCZYGEMBA, Appellant, v. The STATE of Texas, Appellee.
    No. 51080.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.

      Peter Torres, Jr., San Antonio, for appellant.
    Earle Caddel, Dist. Atty., Uvalde, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for murder; the punishment is imprisonment for 5 years.

The appellant asserts that the evidence is insufficient to support the jury verdict for murder with malice, and that he was deprived of constitutional due process because he was not given the opportunity to appear before the grand jury before it returned the indictment charging him with this offense and because his attorney was not notified before the grand jury considered the charges and returned the indictment.

The appellant and his wife Frances gave a party on the evening of November 2, 1973. Before he departed with his date and another couple, one of the guests kissed the appellant’s wife. Although the guest had permission from the appellant before kissing his wife, the kissing incident caused an argument between the appellant and his wife, in which they called each other vile names. All of the guests except Linda Hilton and her husband, who was Frances Moczygemba’s brother, had left. The appellant obtained a pistol and, saying he was going to kill the man who had.kissed his wife, left in his automobile, but returned in about twenty minutes.

The argument and name calling between the appellant and his wife resumed when he returned. Linda Hilton was with them, but her husband was in the house asleep. During the argument the appellant threatened several times to kill his wife. Linda Hilton testified that: “. . . they kept arguing and then he hit her and knocked her out of the chair; then he shot her — when he slapped her it knocked her out of the chair and she was lying flat on the ground. He pointed the gun straight down at her with his arm stretched out; had it straight down at her face.” After the shot was fired Linda Hilton saw blood appear on Frances Moczygemba’s cheek. There was proof that the wound caused her death.

The appellant’s version of the shooting of his wife was quite different from that of Linda Hilton and supported his defense that the shooting was an accident.

The court’s charge included instructions on the law of accident and murder without malice. The jury resolved the conflicts in the testimony against the appellant. The evidence is sufficient to support the jury’s verdict.

The appellant’s second ground of error is:

“The Honorable Trial Court erred in overruling Appellant’s Motion for New Trial in that the appellant was not given the opportunity to appear before the Grand Jury, nor was he nor his attorney notified of the time when his case would be presented to the said Grand Jury, thereby depriving him of due process of law contrary to the Fourteenth Amendment of the United States Constitution.”

Appellant’s argument is more expansive than the ground of error, and most of his arguments are abstract in nature and not related to the record in this appeal, but we will attempt to answer various parts of the argument.

The appellant contends he has a right to be present with the grand jury during the presentation of evidence against him and to at least be notified of its proceedings so he may challenge the grand jury or individual members.

An accused or one being investigated by a grand jury does not have the constitutional right to appear in person or by counsel before the grand jury. Johnson v. Superior Court of San Joaquin County, 15 Cal.3d 248, 124 Cal.Rptr. 32, 539 P.2d 792, (1975); Commonwealth v. Gibson, 333 N.E.2d 400 (Mass.S.Ct.1975); State v. Williams, 310 So.2d 528 (La.S.Ct.1975); State v. Cobbs, 164 Conn. 402, 324 A.2d 234 (1973); Steigler v. Superior Court, 252 A.2d 300 (Del.S.Ct.1969); State v. Panagoulis, 253 Md. 699, 253 A.2d 877 (1969); State v. Salazar, 81 N.M. 512, 469 P.2d 157 (1970); State v. Morgan, 9 N.C.App. 624, 177 S.E.2d 457 (1970); Chesley v. State, 3 Md.App. 588, 240 A.2d 342 (1968).

An accused does not have the right to be confronted with and to cross-examine witnesses who appear before a grand jury investigating and considering matters in which the accused is a prospective defendant. Lopez v. State, 158 Tex.Cr.R. 16, 252 S.W.2d 701 (1952).

Our statutes give an accused or prospective defendant the right at the proper time to challenge the composition of the grand jury. See Articles 19.26-19.33, V.A. C.C.P. These statutes do not require that notice of the grand jury deliberation be given to an accused or prospective defendant. The statute gives him sufficient notice of the empaneling of the grand jury and provides a method to challenge the grand jury’s composition. This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Ex parte Robert Gonzales SANTILLAN.
    No. 51404.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.

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

DOUGLAS, Judge.

This is a habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P.

Petitioner contends that one of two prior convictions should be set aside as void. He alleges that the conviction for possession of heroin and for possession of narcotic paraphernalia arose out of the same transaction.

The trial court made the following findings of fact and conclusions of law:

1. On May 24, 1971, petitioner pleaded guilty to Cause No. 71-708-A for the possession of a narcotic drug and to Cause No'. 71-709 for possession of narcotic paraphernalia.
2. Both offenses were alleged to have been committed on February 6, 1971.
8. Both offenses arose from the same transaction and same set of circumstances, the judicial determination of one foreclosing the determination of the other.
4. The State of Texas made no selection as to which offense to pursue.
5. Petitioner was sentenced to serve eight years for each cause. Sentences for both were to run concurrently.
6. Neither conviction has been set aside.
7. The relief should be granted and the conviction for possession of narcotics paraphernalia should be set aside.

This Court has held that the possession of narcotics and the possession of narcotics paraphernalia which was a part of the same transaction constituted only one offense and the State could obtain only one conviction out of that transaction. Thompson v. State, 495 S.W.2d 221 (Tex.Cr.App.1973); Hancock v. State, 495 S.W.2d 222 (Tex.Cr.App.1973); Harris v. State, 499 S.W.2d 139 (Tex.Cr.App.1973); Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973); Cheeseman v. State, 520 S.W.2d 382 (Tex.Cr.App.1975). Where two such convictions have been had out of such a transaction, the matter may be raised for the first time in a post-conviction habeas corpus proceeding. Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1975).

The sentences were to run concurrently, and even though it will make little or no practical difference, one of the two ■prior convictions must be set aside. The charge of possession of heroin bears the earlier cause number and, presumably, is the one to which the petitioner first, and validly, pled guilty. Following the reasoning of Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974), the possession of heroin conviction will not be disturbed. The conviction for the possession of narcotics paraphernalia is set aside.

      . A copy of this opinion will be furnished to the Texas Department of Corrections.


text:
    Ex parte Woody Lamar AINSWORTH.
    No. 51506.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, & Ned V. Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from an order denying relief in a habeas corpus proceeding in which appellant sought release on bail pending a hearing on the State’s motion to revoke his felony probation.

Appellant challenges the trial court’s refusal to set bail.

We note that effective June 19,1975, Art. 42.12(8)(a), V.A.C.C.P., has been amended. The relevant portion of the statute now provides:

“ . . .A probationer so arrested [upon warrant for violation of any of the conditions of his probation] may be detained in the county jail or other appropriate place of detention until he can be taken before the court. Such officer shall forthwith report such arrest and detention to such court. If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation. The court may continue the hearing for good cause shown by either the defendant or the state. . ” (Emphasis added.)

The emphasized portion of the statute is new.

In Ex parte Jones, Tex.Cr.App., 460 S.W.2d 428, the Court held that Article I, Section 11, of the Texas Constitution, protecting the right to bail, does not apply to a probationer who has been arrested for probation violation. It was held:

“The petitioner is thus not entitled to bail as a matter of right pending a hearing on the State’s motion to revoke probation. . . . ”

While legislative amendment may not alter the scope of constitutional protections, there remains the question of whether the amendment to Article 42.12(8)(a), supra, created a statutory right to bail in cases such as this. We are of the opinion that the statutory language, “If the defendant has not been released on bail,” does not show an intent to create a statutory right to bail but, to the contrary, continues to leave the decision to grant or deny bail in the discretion of the judge. The amending language further supports such a conclusion in that it provides a probationer with the statutory right to demand and secure a prompt hearing on the motion to revoke probation in the event he has not been released on bail.

We therefore hold that a probationer is not entitled to bail as a matter of right pending a hearing on the State’s motion to revoke probation, but that a person so situated may be admitted to bail by the court in the exercise of its discretion.

No abuse of discretion has been shown or asserted. The judgment is affirmed.


text:
    Randy WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51783.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

On May 5, 1975, appellant was convicted by a jury for unlawful delivery of heroin. The jury assessed punishment at ten years and recommended that the imposition of sentence be suspended. Pursuant to Article 42.12, V.A.C.C.P., judgment was entered accordingly. Notice of appeal was given on May 13, 1975.

The record, which is before us without a transcription of the court reporter’s notes, reflects that appellant was represented at trial by retained counsel who filed a written notice of appeal.

Pursuant to Article 40.09, Section 7, V.A. C.C.P., notice of completion of the record on appeal was mailed to counsel on September 26, 1975. Eight days later on October 4, 1975, the attorney was ordered suspended from practicing law in this State until April 3, 1976. The record in the instant case was not approved by the trial court until November 18,1975, which, under Article 40.09, Section 9, V.A.C.C.P., commenced the thirty days’ time in which to file a brief in the trial court in appellant’s behalf. No such brief was filed in the trial court and no brief in this appellant’s behalf has been filed in this Court. See Article 40.09, Section 13, V.A.C.C.P. There is no indication of appellant’s indigency in the record; and, there is nothing before us to indicate that other counsel has been substituted to represent appellant on appeal.

In Chavez v. State, 471 S.W.2d 392 (Tex.Cr.App.1971), and Gomez v. State, 471 S.W.2d 393 (Tex.Cr.App.1971), the attorney for the respective appellant had died prior to notification of completion of the respective appellate records. In both cases the appeals were abated. In Chavez v. State, supra, we stated:

“In Steel v. State, Tex.Cr.App., 453 S.W.2d 486 (1970), we noted that the failure of non-appointed counsel in a criminal case to perfect an appeal from a conviction, when requested to do so by the accused, violates the requirement that the accused be afforded the effective aid of counsel on appeal. See Atilus v. United States, 406 F.2d 694 (5th Cir. 1969). By analogy, it is clear that if the defendant manifested a desire to appeal then the absence of counsel, due to death, to pursue this appeal would also be a denial of assistance of counsel at a critical stage in a criminal proceeding.”

In the instant case, counsel had not been suspended until after notice of completion of the record had been mailed to him. Yet, during all the thirty days’ time provided under Art. 40.09, Sec. 9, supra, in which a brief could be filed timely in the trial court in appellant’s behalf, his counsel was suspended from the practice of law and could not file a brief for appellant.

To avoid the possibility of depriving this appellant of the effective aid of counsel on appeal and an adequate appellate review, this appeal will be abated in order that the trial court can properly notify the appellant of his attorney’s suspension so that appellant may retain assistance of counsel on appeal or in the alternative to inquire and determine whether the circumstances would require the appointment of counsel for the appeal.

The appeal is abated.