author: DAVIS, Commissioner.

text:
    Nancy Carol RONK, Appellant, v. The STATE of Texas, Appellee. Harold Francis RONK, Jr. v. The STATE of Texas, Appellee.
    Nos. 51301, 51302.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.
    Rehearing Denied Dec. 22, 1976.

      Herbert Green, Jr., Dallas, for appellants.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, John Ovard and James K. Johnson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from the convictions of the appellants in a joint trial for the offense of injury to a child. Punishment, assessed by the jury, was twenty years each.

Appellants were found to be criminally negligent for failing to obtain necessary medical treatment for two-and-a-half year old Heath Lambert, resulting in his death. The prosecution was under V.T.C.A. Penal Code, Sec. 22.04, Injury to a Child.

At the outset, we are faced with the problem of a fundamentally defective indictment.

Omitting the formal parts, the indictments in these cases charge that “Nancy Carol Lambert Ronk” and Harold Ronk did,

“intentionally, knowingly, recklessly, and with criminal negligence engage in conduct that caused serious bodily injury to Heath E. Lambert, a child less than 15 years of age, in that said Defendant failed and refused to secure proper medical treatment for the said Heath E. Lambert after the said Heath E. Lambert received burns to his body which required medical treatment.”

V.T.C.A. Penal Code, Sec. 22.04, “Injury to a Child,” provides:

“(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury, serious physical or mental deficiency or impairment, or deformity to a child who is 14 years of age or younger.”

V.T.C.A. Penal Code, Sec. 6.01, reads in pertinent part:

“(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that the conduct is an offense.
(c) A person who omits to perform an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform the act.”

V.T.C.A. Family Code, Sec. 12.04, relates to the duty of a parent to provide a child with medical care, said statute providing:

“Except as otherwise provided by judicial order or by an affidavit of relinquishment of parental rights executed under Section 15.03 of this code, the parent of a child has. the following rights, privileges, duties, and powers:
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical care, and education; . . . .”

Section 6.01, supra, “Requirement of Voluntary Act or Omission,” under Title 2 of the new Penal Code, “General Principles of Criminal Responsibility,” provides that an omission to perform an act does not constitute an offense “unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform the act.” Thus, an essential element to an offense arising out of the failure to provide medical care for a child is the duty to provide such care. The only persons charged with such duty under Section 12.04 of the Family Code are the parents as that term is defined in Section 11.01, supra. Thus, the indictments in the instant cases, in failing to allege a relationship (between appellants and the child) which would place appellants under a statutory duty to secure medical treatment for the child, are missing a necessary element to constitute an offense.

If an indictment does not allege an offense any conviction based thereon is void. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Shane v. State, Tex.Cr.App., 513 S.W.2d 579. For the reason heretofore stated, the indictments in the instant cases will not support the convictions.

The judgments are reversed and the prosecutions ordered dismissed.

      . V.T.C.A. Family Code, Sec. 11.01, “Definitions” provides in pertinent part:
      “(3) ‘Parent’ means the mother, a man as to whom the child is legitimate, or an adoptive mother or father.

      (4) ‘Parent-child relationship’ means the rights, privileges, duties and powers existing between a parent and child as provided by Section 12.04 of this code.”


source: Caselaw Access Project

author: ONION, Presiding Judge. ROBERTS, Judge

license: Public Domain

text:
    Larry Keith GREER, Appellant, v. The STATE of Texas, Appellee.
    No. 52041.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.
    Rehearing Denied Dec. 22, 1976.

      Frank Maloney and Kenneth E. Houp, Jr., Austin, for appellant.
    C. Ned Granger, County Atty. and John C. Augustine, Asst. County Atty., Austin, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of driving while intoxicated. The punishment, assessed in the trial before the court, was a $100 fine and three (3) days in county jail.

'Appellant in his first ground of error contends that his warrantless arrest was without constitutional or statutory authority and any evidence obtained as a result of that arrest should have been suppressed.

Austin police officer John Johnston testified that on January 8, 1974, at 1:30 a. m., he was escorting the moving of a house on East Seventh Street, which is a one-way east bound street. At such time he observed an automobile traveling west the wrong way on Seventh Street. Such vehicle came within 40 feet of Johnston’s patrol unit and then made a right turn onto Red River Street at a faster than normal speed. He was unable to identify the driver, but observed he was a white male with light colored hair. Johnston then broadcasted over his radio unit a description of dark blue over light blue Continental automobile, late model, and stated it had been driving the wrong way on Seventh Street and was “possibly D.W.I.” He later saw a car at the police pound which looked similar to the one he had seen.

Austin police sergeant Claude Hill testified he heard the radio broadcast for any police unit around Seventh and Red River Streets and that a possible D.W.I. had been westbound on East Seventh in a dark over light blue Continental. Later he heard a broadcast state the car had gone west on Eighth Street. As Hill turned westbound onto Eighth Street, he saw a large car moving at a very slow rate of speed two and a half blocks away. He closed the gap and observed that the Continental was not traveling faster than 4 to 7 m.p.h. The Continental, meeting the description of the broadcast, turned south onto San Jacinto and then east onto Seventh Street. Taking into consideration the broadcast, the manner of slow driving with no traffic to retard the vehicle at that time, the out of county license plates, and the fact that the driver had apparently driven in “a kind of square,” Hill put on the red lights of his patrol unit and stopped the Continental after two blocks. Hill related he stopped the vehicle partly because of the possibility that the driver was intoxicated considering the manner of his driving and partly because he thought the driver might be lost in view of his manner of driving and out of county plates.

Hill related appellant, whom he identified in the courtroom as a blond-headed man, got out of the vehicle and fell against the car. Hill could detect a strong odor of alcohol on the appellant’s breath and observed that he was unsteady on his feet and was swaying to and fro. His speech was slurred. Hill stated that after he observed the appellant was intoxicated he then arrested him.

Appellant contends that the authority to make a legal arrest without a warrant is controlled exclusively by statute in Texas. He argues if the situation claimed to authorize an arrest without warrant does not come squarely within some classification established by statutes authorizing such arrest, the authority does not exist. The assertion made is that neither Articles 14.01, 14.02, 14.03 or 14.04, Vernon’s Ann.C.C.P., or Article 6701d, Sec. 153, Vernon’s Ann. C.S., or any other Texas statute grants authority to arrest without warrant where the officer receives credible information that a misdemeanor has been committed and the person is about to escape.

However, under the circumstances described in the present case, we need not address the issue of whether there was justification to arrest without warrant upon credible information that a misdemeanor had been committed or whether there was probable cause to stop the car.

The Fourth Amendment has been held not to require a policeman who lacks a precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). Circumstances falling short of probable cause for arrest may justify temporary detention for purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of an individual than is an arrest. Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Thompson v. State, 533 S.W.2d 825 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Wood v. State, supra; Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, supra; Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976).

Thus neither tests of reliability demanded for showing of probable cause nor showing of probable cause is required to justify an investigative stop. United States v. Rollerson, 491 F.2d 1209 (5th Cir. 1974); Wood v. State, supra; Borner v. State, supra. A brief stop of a suspicious individual in order to maintain status quo momentarily while obtaining more information may be reasonable in light of facts known to the officer at the time. Adams v. Williams, supra; Wood v. State, supra; Thompson v. State, supra; Borner v. State, supra.

Of course, the officer must, in light of his experience and general knowledge, have specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant such a stop. Hernandez v. State, supra; Terry v. Ohio, supra; Baity v. State, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

An occupant of an automobile is just as subject to a brief detention as is a pedestrian. Adams v. Williams, supra; Wood v. State, supra; Hazel v. State, supra; Hernandez v. State, supra; Mann v. State, supra.

In the instant case officer Hill had received a police broadcast that a described Continental automobile was “possibly D.W. 1.” and had been seen going the wrong way on a one-way street. A later broadcast informed him the vehicle had turned onto Eighth Street and within 30 to 35 seconds Hill observed a large car on Eighth Street, there being no other traffic in the area. He closed the gap between his patrol unit and the other vehicle and observed it met the description given. He noted that the Continental was traveling from 4 to 7 m. p. h., a very slow speed without any other traffic to impede it. He stated he did not observe any traffic violations. He followed the car for several blocks. Hill also observed that from the information he received as to where the car had been and from the turns the vehicle made the driver was driving in a “kind of square.” Noting the out of county license plates and given the early morning hours, Hill concluded the driver could be lost. He thus determined to make an investigatory stop. The stop under the circumstances was justified. Hill did not testify that he stopped to make a check to see if the driver had an operator’s license, although he could have done so. He did testify that he asked the appellant for an operator’s license and that he produced a valid one. By this time, of course, the appellant had fallen against the car, and had displayed other signs of intoxication earlier described thus providing probable cause for his warrantless arrest for driving while intoxicated.

Appellant’s contention is overruled.

In another ground of error appellant contends the court erred in failing to grant his motion to quash the complaint and information because there was no allegation therein of culpable mental state for the offense of driving while intoxicated. Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975), and Owen v. State, 525 S.W.2d 164 (Tex.Cr.App.1975), have been decided contrary to appellant’s contention. We adhere to those decisions.

Finally appellant contends the court erred in refusing to allow him to reopen a pre-trial hearing on his motion to suppress at the time of the trial. The hearing on the motion to suppress had been heard before a different judge some six months before. The case was later transferred to the court where the trial was had. On the day of trial the appellant asked to reopen such hearing to allow him to testify he thought he was not free to leave at the time he was stopped by the officer. Upon refusal to reopen the hearing, the appellant perfected his bill of exception. We do not find an-abuse of discretion.

The judgment is affirmed.

ROBERTS, Judge

(concurring).

I agree that Sergeant Hill was justified in stopping the appellant’s car for investigation. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975).

However, I cannot agree that the out-of-county license plates on the car constituted any part of this justification. As we said in Faulkner v. State, (Tex.Cr.App.1976), No. 51,235 (delivered November 17, 1976) 2 TCR 178: “The out-of-county tags and slow driving were not evidence of any wrongdoing.”

The basis for such a conclusion is obvious. Our society has become an extremely mobile one: Intercounty, interstate, and even international automobile travel is not merely commonplace, but pervasive. To say that such travel is suspicious is to point the finger of criminal accusation at the great majority of American citizens.

For these reasons I cannot agree with the majority’s implication that out-of-county license plates can be part of a police officer’s justification for an investigative stop.

      . • At the hearing on motion to suppress, officer Hill testified Johnston had described the car as a ’73 model.

      . Article 6687b, Sec. 13, Vernon’s Ann.C.S.; Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App. 1973); Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973).


author: GREEN, Commissioner.

text:
    Roger Dale HESTER, Appellant, v. The STATE of Texas, Appellee. Randall Lewis NYMAN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49924-49929.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.

      William E. Bender, Seguin, for Roger Hester.
    Malcolm C. Halbardier, San Antonio, for Randall Nyman.
    Ted Butler, Dist. Atty., Charles T. Cona-way, Lucien B. Campbell and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a single trial before the court, a jury having been waived, both appellants were convicted of two murders and one burglary of a private residence at night. Punishment was assessed at life for each murder and sixty years for each for the burglary of a private residence at night.

On original submission, the appeals were abated because the trial court failed to file sufficiently detailed findings of fact and conclusions of law on the disputed fact issue regarding the voluntariness and admissibility of the confessions of appellants. The court was directed “to reduce to writing his findings on the disputed fact issues surrounding the taking of appellants’ confessions raised in the grounds of error challenging the court’s ruling on their admissibility, and to file with this Court his certificate reciting those findings.” See Hester and Nyman v. State, Tex.Cr.App., 535 S.W.2d 354. A supplemental transcript has now been filed reflecting such findings and conclusions. The appeals have been reinstated, and are now properly before us for our consideration and disposition. See McKittrick v. State, Tex.Cr.App., 541 S.W.2d 177.

Considering the evidence in the light most favorable to the convictions, the record reflects that shortly before midnight February 1, 1973, both appellants acting together as principals burglarized the private residence of Walter Bennett in He-lotes, Bexar County, taking therefrom personal property including a color television set and other household goods by loading these articles in a Ford van. While headed back toward San Antonio in the van, with appellant Nyman driving, they were stopped for investigation of license plates by deputy sheriffs Vincent Walker and Joshua Rodriquez. Walker in a radio message to his dispatcher sent at 12:32 a. m. inquired of license No. LKK-528 on a van or bus type vehicle. The dispatcher received no further request or report from the officers. At 12:42 a. m. the dispatcher received a call from an unidentified person stating that “two of our officers had been shot in the vicinity of Bandera Road and Huebner Road.” The dispatcher had learned that license LKK-528 belonged to a 1964 Ford van. He broadcast a call for all officers to be on the lookout for a 1964 Ford van bearing license LKK-528 “possibly wanted in the shooting of two Bexar County officers.” Officer Golding, while on patrol, heard the radio message received by the dispatcher concerning the two officers, and arrived near the intersection of Hueb-ner and Bandera 42 seconds thereafter. He found the bodies of Officers Walker and Rodriquez, both of whom had been shot. Their car was nearby with the headlights burning. A lighted flashlight was near Walker’s body. Walker's pistol was in its scabbard which was buckled closed. Rodriquez’s pistol was in his hand. The record discloses that Officer Walker was shot with a .38 caliber pistol by appellant Nyman while the officer was approaching the driver’s side of the van. Officer Rodriquez was shot in the temple by appellant Hester with a .22 caliber pistol while approaching the van on the passenger’s side. Both officers died as the result of these gunshot wounds.

On appeal, appellant Roger Dale Hester complains (1) of the admission in evidence of his written confession; (2) of insufficiency of evidence to sustain the conviction in the two murder cases; (3) of the State being permitted “to carve more than one offense of murder with malice arising out of and from the same transaction and occurrence;” (4) of the failure to prove venue in the murder cases; (5) of insufficient evidence to prove his guilt in our Cause No. 49,926, trial court No. 73-CR-305A of burglary of a private residence at night; (6) of the court’s overruling his motion to suppress evidence obtained by virtue of an illegal search warrant; (7) of cumulating the punishment in his three convictions.

Appellant Randall Lewis Nyman makes the contention of reversible error (1) in the admission in evidence of his written confession; (2) because of insufficiency of evidence to support his conviction of burglary of a private residence at night (our Cause No. 49,929, trial court No. 73-CR-305-B); (3) in that his confession of murder was not corroborated by other evidence; (4) in permitting the State to carve more than one offense “where the evidence shows that the same was one continuing criminal episode;” (5) in the action of the trial court in cumulating the punishment.

APPEALS OP APPELLANT ROGER DALE HESTER

Prior to the admission of any evidence at the guilt phase, the court conducted a hearing to determine the admissibility of the written confession of both appellants. Following the introduction of evidence by all parties, the transcribed record of which covers 430 pages, the court overruled the motions to suppress, and ruled the confessions to be admissible. The court’s findings and conclusions concerning the taking of appellant Hester’s confession are as follows:

“FINDINGS OF FACT
“The Court finds beyond a reasonable doubt that:
“1. The defendant was arrested at his residence by Bexar County Sheriff’s officers between 6:00 and 7:00 a. m. on February 2, 1973, after officers armed with a search warrant had discovered stolen property on the premises. The defendant was not interrogated at the time of his arrest, but was warned of his rights prior thereto by Sheriff’s Investigators Bob Lew and Edgar McGraw. Following his arrest, the defendant was transported to the Bexar County Sheriff’s Office.
“2. Thereafter, on the aforementioned date, between 8:30 and 9:00 a. m., the defendant gave a confession to Investigator Lew. Before taking the confession Lew again warned the defendant of his constitutional rights by reading to him the printed warning at the top of the confession form. The confession taken by Lew was left unsigned by the defendant because at approximately 10:00 a. m., when the defendant was reading the typed confession, another Sheriff’s investigator, Alvin Johnson, entered the room and began talking to the defendant. The defendant, however, never refused to sign the statement taken by Lew, nor did he ever indicate to Lew that he wanted an attorney.
“3. Prior to his interview with the defendant, Investigator Johnson also read the defendant the warning which appears at the top of the printed confession form. Johnson gave the defendant this warning at 10:00 a. m. and advised him in compliance with Article 38.22, V.A.C.C.P., that he had the right to have a lawyer present to advise him prior to or during any questioning; that if he was unable to retain a lawyer, he had the right to a court-appointed attorney to advise him prior to or during any questioning; that he had a right to remain silent; that any statement that he might make could be used in evidence against him; that if he decided to speak with anyone, he could terminate questioning at anytime; that the foregoing rights were continuing rights and could be urged by him at any stage of the proceedings. During the next thirty minutes, as he was interviewing the defendant, Johnson permitted the defendant to use the phone. The defendant told Johnson he was trying to call his brother. After several unsuccessful calls, the defendant said to Johnson, ‘Okay, I’ll just go ahead and give you the confession.’ At approximately 10:30 a. m., Johnson began typing a second confession as the defendant answered his questions. The confession was completed in about thirty minutes. Johnson then read the confession to the defendant who signed the confession at 11:00 a. m. Dudley Bradley and Andrew Berlanga witnessed the defendant’s signature and affixed their own signatures to the bottom of the confession. At the time he interviewed the defendant and took his confession, Johnson had no knowledge whether the defendant had an attorney to represent him.
“4. Investigator Johnson did not induce or coerce the defendant to make and sign his confession through force, threats, persuasion, intimidation, or promises, or any combination thereof. Rather, the defendant acted freely and voluntarily in giving Johnson his confession, which Johnson typed after the defendant had knowingly, intelligently, and voluntarily waived his rights under Article 38.22, Y.A.C.C.P., including his right to the assistance of counsel. The confession was signed by the defendant freely and voluntarily.
“5. Further, the defendant voluntarily gave his confession without force, threats, persuasion, intimidation, or promises on the part of any other person, either prior to or during the time he made and signed the same.
“6. At no time on the aforementioned date did the defendant advise sheriff’s officers that he wanted an attorney present, nor did he tell them that he was expecting the arrival of a lawyer to assist him.
“7. At no time on the aforementioned date did the defendant request sheriff’s officers to cease interrogating him.
“8. At no time did the defendant refuse to sign the confession taken by Investigator Johnson.
“9. Although attorney Terrence Willis appeared at the Sheriff’s Office in defendant’s behalf at approximately the time he signed the confession given to Johnson, Willis was never denied access to his client. No member of the Sheriff’s Office or any other person in authority told Willis he could not see the defendant or wilfully prevented him from seeing the defendant.
“CONCLUSIONS OF LAW
“The Court concludes as matter of law that:
“1. The defendant after repeated warnings knowingly, intelligently, and voluntarily waived his rights under Article 38.-22, V.A.C.C.P., including his right to the assistance of counsel.
“2. The defendant’s confession was not the product of force, threats, persuasion, intimidation, or promises, but was freely and voluntarily given.
“3. The defendant’s voluntary confession was therefore admissible in evidence as a matter of law.”

Appellant’s argument that the evidence fails to show that his confession was freely and voluntarily given is based on his contentions (1) that appellant was not taken before a magistrate prior to making the confession, as provided by Art. 15.17, V.A.C. C.P., and (2) that the evidence fails to show that appellant made and signed the confession “with a knowledgeable waiver of the right of counsel” and that in fact he was “denied the right to the effective assistance of counsel.”

The record reflects that appellant Hester was arrested at his home about 5:00 or 5:30 a. m. where officers were executing a search warrant for the property stolen from Bennett’s home. At that time he was advised of his Miranda and statutory rights by Officer Lew and by Officer McGraw. He was then taken to the sheriff’s office. Officer Lew next saw Hester about 8:30 or 9:00 a. m., when he again read and explained to him his rights, reading from the confession form. Appellant Hester made no mention of wanting a lawyer and, waiving his right to counsel, confessed to Lew that he committed these offenses with his co-principal Nyman. Lew typed the confession and showed it to appellant. At this time about 10:00 a. m. Sheriff’s Criminal Investigator Alvin R. Johnson entered the room. Johnson was a long time friend of Hester, having been his barber before becoming a deputy sheriff. Without knowing that Lew had obtained a statement, Johnson asked him to leave, and Johnson then read to appellant his Miranda rights. Appellant asked permission to use the phone, and made several calls, but made no mention of trying to contact a lawyer. He then said “Okay, I’ll just go ahead and give you the confession,” and proceeded to do so. This was taken down and typed, and appellant, after reading it in the presence of Johnson and a secretary and other witnesses, signed it. Johnson testified that at no time did appellant mention wanting a lawyer, although he had been advised of his right to have one, either employed or court-appointed, and that appellant voluntarily made and signed the confession without any force being used or threats or promises made. Johnson testified the confession was signed at approximately 11:00 a. m. on February 2nd.

Appellant testified he understood the warning that was given by Officer Johnson, but denied having waived the presence of legal counsel, and testified that he told Officers Lew and Johnson that he wanted to have a lawyer before making the statement. He said a secretary was present when he advised Johnson of such desire. The secretary who was present testified she heard no such request. There was no testimony from appellant or any other witness of any force or violence used, or any threats or promises made, and no such contention is made on appeal.

Attorney Terrence A. Willis testified that at about 10:30 a. m., at the request of Beryl Hester, appellant’s brother, he called Chief Deputy Sheriff Garza and stated he represented appellant, and asked that all questioning of him be stopped. Garza responded that the attorney would have to come to the office before anything could be done. Willis and Beryl Hester arrived at Garza’s office at approximately 10:55 a. m. After telling Garza that he represented Hester, and wanted to see him, Garza left to check with other officers. Willis testified that in a few minutes he followed and about twenty-five minutes later he saw appellant being taken to the magistrate’s office after having given the confession. The evidence reflects that Willis was acting solely at the request of appellant’s brother.

Chief Deputy Sheriff Garza testified that when Willis called he told Willis that anyone could call and say he was a lawyer and that there were two lawyers already claiming to be appellant’s attorney, and “he should come on down to the office because I didn’t know who it was on the phone.” When Willis and Beryl Hester arrived at his office, he talked with them and then took them to see Captain Morin, who was in charge of the investigation. Garza did not remember what time this occurred, but testified it was about the time appellant and Officer Johnson came from the interrogation room to go to Judge Gutierrez for formal charges to be filed.

In addition to the above, the opening paragraph of the confession reads:

“I, Roger Dale Hester, after first being duly warned by Alvin R. Johnson, at 10:00 Am. (sic) at Bexar Co. Sheriff’s Department on Feb. 2 — 73 that I have the right to have a lawyer present to advise me either prior to any questioning or during any questioning; and that if I am unable to employ a lawyer, I have the right to have a lawyer appointed to counsel with me prior to or during any questioning; and that I have the right to remain silent and not make any statement at all; and further, that any statement I make may be used in evidence against me at my trial; that if I decide to talk with any one, I can, and that I can stop talking to them at any time I want. The above rights are continuing rights which can be urged by me at any stage of the proceedings, and I do hereby voluntarily waive these rights and give to the said Alvin P. Johnson the person to whom this statement is being made, the following statement:”

In Harris v. State, Tex.Cr.App., 516 S.W.2d 931, at page 936, we said:

“The mere signing of a boilerplate statement to the effect that an accused is knowingly waiving his rights will not discharge the prosecution’s burden of showing waiver, but is a factor to be considered in determining if the accused affirmatively waived his rights. See McCandless v. State, 425 S.W.2d 636 (Tex.Cr.App.1968); Torres v. State, 422 S.W.2d 741 (Tex.Cr.App.1968) (Concurring Opinion).”

See also McKittrick v. State, Tex.Cr.App., 541 S.W.2d 177; Pete v. State, Tex.Cr.App., 471 S.W.2d 841.

In the instant case, we have more than the “boilerplate” statement in the confession. Officer Johnson testified that after appellant had been told of his rights on a number of occasions, including just before he made his confession, he used the telephone several times and then said: “Okay, I’ll just go ahead and give you the confession.” Officer Lew testified to the willingness of appellant to make his confession after having his rights thoroughly explained to him. Appellant testified that the officers explained his rights to him, and that he “understood the warning that was given him by Officer Johnson.” The testimony of Officer Garza and others as well as Johnson reflected that appellant was not denied the right to see counsel before executing his confession, and that the right to counsel was waived.

In Miranda, the majority opinion stated that “an express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.” See Charles v. State, Tex.Cr.App., 424 S.W.2d 909, dissenting opinion, page 914.

The trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony. It found from the evidence that

“6. At no time on the aforementioned date did the defendant advise sheriff’s officers that he wanted an attorney present, nor did he tell them that he was expecting the arrival of a lawyer to assist him.
“9. Although attorney Terrence Willis appeared at the sheriff’s office in defendant’s behalf at approximately the time he signed the confession given to Johnson, Willis was never denied access to his client. No member of the sheriff’s office or any other person in authority told Willis he could not see the defendant or willfully prevented him from seeing the defendant.”

The evidence is sufficient to reflect that the State sustained the heavy burden of proving a waiver of appellant’s right of counsel, and we find the evidence sufficient to support the findings and conclusions of the trial court.

Appellant’s contention that his confession was inadmissible because he was not taken before a magistrate prior to making it, as provided by Art. 15.17, V.A.C.C.P., is without merit. Unless there is a showing that there is a causal connection between the failure to take the defendant before a magistrate and the giving of the confession, the validity of the confession is not affected by such failure. Shadrick v. State, Tex.Cr.App., 491 S.W.2d 681; Dunlap v. State, Tex.Cr.App., 462 S.W.2d 591; Easley v. State, Tex.Cr.App., 448 S.W.2d 490. There was no such showing in the instant case.

The trial court did not err in overruling appellant Hester’s motion to suppress his confession.

In connection with the other contentions of appellant Hester, the record, in addition to the recital of facts made earlier, reflects as follows:

Patrolman Ernest Aguilera while on patrol in his police car heard the radio calls concerning the shooting of the two deputies, and was on the lookout for the 1964 Ford van with license No. LKK-528. About 1:00 a. m. he saw it, noticed the license number, and followed it for a distance. As he followed, he clocked it at one hundred miles per hour. He turned on his flashing lights and was successful in catching up and stopping it. Inside the van was appellant Nyman, his wife and baby. Ny-man and his wife were placed under arrest.

Later that morning, about 4:00 o’clock, on information received from Mrs. Nyman, Officers Carreon, Mendoza and Lew went to the home of appellant Hester. Carreon and Mendoza went to the front door and knocked, while Lew stayed at the car. Mrs. Hester opened the door and invited them in. Lew followed the other officers into the home. Appellant Hester was in the house. No immediate search of the house or arrest of Hester was made but the officers waited for a search warrant which they were advised by Officer Johnson was being prepared.

In the meantime, Mrs. Nyman had made a statement to Officer Johnson, saying that the articles stolen at Helotes had been taken by her husband and Hester to Hester’s home. Based on the information thus received from his informant Mrs. Ny-man, and with legal advice from assistant district attorney Conaway, Johnson prepared an affidavit and presented it to Justice of the Peace Gutierrez, who found the affidavit furnished adequate probable cause for a search warrant. This search warrant was executed by Officer McGraw with the assistance of Lew and others. A search of the home produced a number of items identified as having been stolen from Bennett’s home in Helotes earlier that night. Also found under a mattress was a .38 caliber pistol. Upon the completion of the search, appellant Hester was arrested and taken to the sheriff’s office, where he later made his confession.

The affidavit of Officer Johnson based on the information given by the wife of appellant Nyman in which she was named as the informant and the search warrant are included in the record. We have examined the affidavit and find that the allegations sufficiently furnished probable cause for the issuance of the search warrant. See Woods v. State, Tex.Cr.App., 533 S.W.2d 16; Frazier v. State, Tex.Cr.App., 480 S.W.2d 375. All contentions of appellant alleging illegality of the search are overruled.

Omitting the opening paragraph which sets forth the warning given, appellant’s confession in evidence reads:

“I want to state that on Thursday Feb. 1st 1973 I was at home at 7503 happy (sic) Valley San Antonio, Texas with my wife Norma and two children Randy and his wife Cynthia came over, this was about 8:00 PM. Randy last name is Nyman. He was driving his green Ford Van. We drank a few beers. I drank two at home and two after we left.
“At about 8:30 PM. Randy and I left my house in his ford (sic) van. Randy drove. We went north on Bandera Rd. turned right on a paved road before we got to Helotes. We went down it about a half mile. We stopped at a house on the right side of the road. This house is a one story house. We broke the back door and took some items. We took them to my house dropped them off and went back for some other things.
“On the way back from the location off Bandera road (sic) the second time it was about 12:30 Am. Just as we were com-ming (sic) into Leon Valley a Police car turned his red lights on behind us. Randy stopped. I looked out the of the van (sic) and the lights were too bright to see anything. Randy fired a shot out the drivers side of the van while he was still inside. I didn’t see an officer. At that time I lost my head and started to jump out but thought I would be shot. I had a 22 cal. revolver and took it in my right hand and started shooting it out the passenger side of the van. I didn’t see an officer out side the van on my side but I was firing to keep one from comming (sic) up on it. I was just waving it around and firing it. I don’t know just haw (sic) many times I shot but it was several. After the first shot that Randy fired I didn’t here (sic) him shoot any more. There was so much noise that he could have and I didn’t here (sic) it.
“All I ever saw was the bright lights. I didn’t see anyone on the ground Randy took off and drove fast toward SA. on Bandera Rd. I don’t know just how Randy got home. Some where shortly after we left the scene I saw some flashing red lights and I got scared and opened the door and and (sic) dropped the pistol. We went on home.
“The above statement was given to sheriff’s investigator Alvin R. Johnson of my own free will and accord. I was not threatened or mistreated. The above is the truth as to what I know and it all took place in Bexar Co. Tex.”

Additional testimony was given by Walter Bennett, who testified that his private residence in Helotes, Bexar County, used by him as such was burglarized on February 1,1973, and identified certain personal property found in Hester’s home during the search later that night as being some of the stolen property; by Dr. Rueben Santos, who testified to the bullet wounds causing the death of the two officers; and by a ballistics expert, who testified that a test made by him reflected that a bullet fired from the .38 caliber pistol found in the Hester home matched the bullet taken from the body of deceased Walker, and that Rodriquez’s death was caused by a .22 caliber bullet. Evidence further showed that the place where the bodies were found was in Bexar County. Appellant’s contentions that venue in Bexar County was not proved and that the pistol was erroneously admitted in evidence are without merit.

Appellant Hester also complains of the sufficiency of the evidence to support his conviction of either murder, and also of the burglary. He argues that there was insufficient evidence to establish his guilt as a principal with Nyman in the shooting of Officer Walker, and no evidence corroborating his confession to show that he shot Officer Rodriquez, or that he intended to shoot him, or that he acted with malice. He also argues that the evidence was insufficient to prove his participation in nighttime burglary of the private residence of Bennett.

In Self v. State, Tex.Cr.App., 513 S.W.2d 832, we held that where the State establishes the corpus delicti of the crime by other evidence the defendant’s confession of the offense, unaided by other evidence, is sufficient to prove guilt. See also Brantley v. State, Tex.Cr.App., 522 S.W.2d 519. The corpus delicti of these murders consisted of (1) the bodies of the deceaseds being found and identified, and (2) the deaths were proved to have been caused by the criminal acts of another. Self v. State, supra. In his confession appellant stated that Nyman fired a shot from the driver’s side of the van. The evidence disclosed that the body of Walker was found on that side and that he was shot by the .38 pistol found under a mattress in appellant’s home. While appellant did not admit shooting at deceased Rodriquez, he did admit that after leaving a house he and Nyman had just burglarized in the van loaded with stolen goods and upon being stopped by a police car with red lights, he fired a number of shots with a .22 pistol from the passenger side to keep an officer from coming up on it. It was on that side of the car that the body of Officer Rodriquez was found shot in the head with a .22 caliber bullet. Thereafter both appellants fled from the scene of the shooting in the van.

In connection with this appellant’s claim that intent to kill and malice were not established, we quote as follows from Canedy v. State, Tex.Cr.App., 507 S.W.2d 743:

“Appellant’s argument that there was no showing of ill will existing between the appellant and the deceased is best answered in the words of Judge Lattimore in Banks v. State, 85 Tex.Cr.R. 165, 211 S.W. 217, where he said:
“ ‘Of kindred spirit is he who can shoot in the darkness into houses, crowds, or trains and recklessly send into eternity those whom he does not know and against whom he has no sort of reason for directing his malevolence.’ ”

As for his contention that the evidence does not support his conviction for burglary of a private residence at night, the record, in addition to the confession and the testimony of Bennett, the owner of the home in Helotes, Bexar County, reflects that the property stolen from that residence that night was, within a few hours, found in appellant Hester’s home.

The evidence is abundantly sufficient to establish that appellants Hester and Nyman were acting together as co-principals in the commission of the burglary and the two murders, and to support his convictions of those crimes.

Appellant’s contention that the trial court erred in permitting the State to carve more than one offense of murder out of and from the same transaction and occurrence is without merit. The killings involved two separate killings, with two victims, each being shot separately from the other. The doctrine of collateral estoppel or carving does not apply to the facts of these cases. See Waffer v. State, Tex.Cr.App., 504 S.W.2d 408; Jones v. State, Tex.Cr.App., 502 S.W.2d 164; King v. State, Tex.Cr.App., 502 S.W.2d 800; Scott v. State, Tex.Cr.App., 490 S.W.2d 578; Bradley v. State, Tex.Cr.App., 478 S.W.2d 527.

Appellant contends that the court erred in cumulating the sentences in his cases. The trial court is vested with the discretion to order two or more sentences to operate either concurrently or consecutively. Art. 42.08, V.A.C.C.P.; Banks v. State, Tex.Cr.App., 503 S.W.2d 582; Christopher v. State, Tex.Cr.App., 489 S.W.2d 575. No abuse of discretion is presented.

The judgments from which appellant Hester appeals are affirmed.

APPEALS OF APPELLANT RANDALL NYMAN

Appellant Nyman complains of the court’s action in overruling his motion to suppress his confession and in admitting his confession in evidence. His contentions are that the evidence fails to show his confession was voluntarily made; that he was not, prior to making his confession, taken before a magistrate as provided by Art. 15.17, V.A.C.C.P.; that the confession was made without “a knowledgeable waiver of the right of assistance of counsel; and that he was denied the right to effective assistance of counsel by the sheriff’s department when his attorney, Charles Wright, came to the offices of the sheriff’s department prior to this appellant affixing his signature to the written confession.”

The evidence introduced at the Jackson v. Denno hearing reflects, and the court found, that appellant was given his Miranda warning by Officers Aguilera and Johnson at the scene of his arrest between 1:30 and 2:00 a. m. February 2nd. He was not interrogated at this time, but was taken to the sheriff’s office. He was given the warning again about 9:30 or 10:00 a. m. by Deputy Sheriff Jesus Mendoza. This appellant then told Sheriff’s Lieutenant Carreon that he desired to make a statement. He was permitted to make a phone call to an unidentified person, and at about 10:25 a. m. Officer Lew was assigned to take his statement. Lew read him the warning from the top of the confession form, including, as shown by the evidence and found as a fact by the court, his right to have a lawyer present or, if he did not have a lawyer or was unable to employ one, his right to have counsel appointed by the court. After being advised of his rights, appellant told Officer Lew that he understood these rights and that he willingly waived them, and proceeded to make his voluntary confession, which Lew reduced to writing. Appellant read the confession taken by Lew and signed it in front of witnesses at 10:50 a. m. The trial court’s findings embrace the above facts, which are fully supported by the evidence. With particular reference to complaints of appellant on appeal, the trial court found:

“6. At no time on the aforementioned date did the defendant advise sheriff’s officers that he wanted a lawyer present nor did he ever inform them that he was expecting a lawyer to arrive and assist him.
“9. Although attorney Charles M. Wright appeared at the sheriff’s office in defendant’s behalf, Wright was never denied access to his client. No member of the Sheriff’s office nor any other person in authority, told Wright he could not see the defendant or willfully prevented him from seeing the defendant.”

Although there were some discrepancies between the testimony of State’s witnesses and defense witnesses, the trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony. The evidence reflects that attorney Wright first appeared at the sheriff’s office at 10:40 a. m. at which time appellant was giving his confession in another part of the office. He first went to the hold-over cell, which, he testified, was “surrounded” by newspaper reporters and officers. When he was able to inform an officer in authority that he was the attorney for Nyman and wanted to speak with him, he was taken to see appellant.

At this time, 10:54 o’clock, appellant had signed his confession and was being taken to the Justice of the Peace office.

We find the findings and conclusions of the trial court as to warnings given, rights waived, and voluntariness of the confession fully supported by the evidence. The court did not err in overruling appellant’s motion to suppress his confession.

Appellant Nyman complains of insufficiency of the evidence to support his conviction in the burglary case (our No. 49,929). We quote as follows from his written confession:

“I wish to state that on February 1, 1973, which is a Wednesday, at about 8:30 P.M., I arrived at Roger Dale Hester’s house at 7503 Happy Valley in San Antonio with my wife and child. I had driven to the house in a blue Ford van with license number LKK 528 on Texas plates. At Roger’s house, I drank a few beers and I then called a phone number that I looked up in the phone book of a house that I had seen. They answered so I and Roger than (sic) left Roger’s house in my Blue van looking for a house to break into. I drove out to Helotes, Texas and then we found a house there and got into it. It was on Rafter S Trail and we broke in through the back garage door. Roger and I went into the house and stole a Curtis Mathis color television and 4 dining chairs and one big chair. We loaded these into my van and then drove back to Roger’s house and unloaded the items and we then stayed at the house for about thirty minutes and then Roger and I decided to go back to the house again. We left Roger’s house again at about 11:00 P.M. and went back Rafter S. Trail and this time, we took one more dinette chair and the table. We also took another living room chair. We loaded these items into my van and I was driving and I was driving on Hwy 16 going towards San Antonio when I saw a cop car in front of us. The cop car then pulled over and I kept on driving towards San Antonio and the cop car then pulled behind us. The cop car followed us for about 2 or 3 miles and then put on the flashing lights. I then pulled over of (sic) the road near a nursery and this was on Bandera Road before you get to Leon Valley. I then saw 2 officers get out of the cop car and one officer was walking up to my van on each side. I was in the driver’s seat and Roger Hester in the front passenger side. Roger and I agreed to shoot it out with the officers. I had a 38 caliber pistol. It was a Liberty Chief make. Roger had a 22 caliber old pistol with white handles. As the two officers walked up to the van, I shot twice at the officer on my side. Roger shot at least four times. He (Roger) was right handed so he had to open the door to be open to shoot. After we shot, we took off and I then drove straight to Roger’s house. Roger wanted to leave. At Roger’s house, I help unload the stolen items and then I gave my 38 pistol to Roger Hester and then took my wife and Child and left and we were then stopped by some more cops.”

As heretofore stated, the owner of the burglarized house in Helotes testified that his private residence was burglarized on February 1, and he identified the household furniture found in the Hester home during the early morning hours of February 2nd as being property stolen in the burglary. The evidence is amply sufficient to sustain his conviction of burglary of a private residence at night.

Appellant Nyman’s remaining contentions, being that his confession of murder was not corroborated by other evidence, that the court erred in permitting the State to carve more than one offense from this one continuing criminal episode and that the court erred in cumulating the punishment, are overruled for the same reasons heretofore given in overruling similar contentions of appellant Hester.

Reversible error is not presented. The judgments of conviction of appellant Randall L. Nyman are affirmed.

Opinion approved by the Court.

      . The warning is in the record, and complies with Miranda and Art. 38.22, V.A.C.C.P.

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

      . The court’s findings and conclusions as to warnings given, rights waived, and voluntariness of confession were substantially the same as those concerning Hester’s confession with certain different times of day and names of officers. The opening paragraph of Nyman’s confession reads the same as that of Hester’s, with differences only in time and names.


text:
    George A. JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 52079.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.

      James W. Patterson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Charles C. Cate, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury on an indictment for murder, appellant was convicted of voluntary manslaughter. See V.T.C.A. Penal Code, Sec. 19.04. Punishment was assessed at ten years.

The record reflects that at about 4:00 o’clock in the morning of August 20, 1974, in front of appellant’s home in Houston, appellant shot deceased three times with a shotgun causing the death of deceased. Mrs. Lydia Johnson, a State’s witness, testified that for about twenty hours immediately prior thereto she and deceased had been in deceased’s home drinking together. About 3:30 a. m., she left with him in his car with her driving to get her four year old daughter from a babysitter. Upon getting the child she insisted on driving to appellant’s home in order to get away from deceased, who was intoxicated. She parked the car in front of appellant’s house and, after having an argument with deceased, she and her child got out of the car and entered appellant’s yard, with deceased following. She then saw appellant in his yard holding a shotgun. Appellant asked her if deceased had a gun, and she answered she didn’t know, but he had told her he had one. Appellant then “hollered” at deceased to “go on,” repeating this three times. After the third time, she saw deceased “coming on to where we were at” and heard him say to appellant “F... you.” She next saw appellant fire three times at deceased. At no time on this occasion did she hear deceased say anything to appellant except the one remark stated above.

Officers coming to the scene shortly after the shooting found deceased lying dead in the yard. No knife or other weapon was found on deceased or in the yard. Doctor Jachimczyk performed an autopsy that same morning, and testified that death was caused by wounds caused by shotgun pellets.

On cross-examination, Lydia Johnson testified to an “altercation” between appellant and deceased about six weeks prior to the shooting. Deceased was “bending her over the sink backward.” Appellant told him to stop, and “took his shoulders and just turned him away from me.” She testified that deceased then started to go for his knife but changed his mind, and said to appellant, “If you ever mess with my business again I’ll cut your throat.”

Appellant’s written confession was placed in evidence by the State. In it he admitted shooting deceased three times with a shotgun, stating that after questioning “Lydia about what was going on and she said she needed a place to stay or a way home” he told deceased two or three times to leave, and “when he moved forward I shot one time and when he did not fall I shot two more times.” He then called the officers, and voluntarily surrendered.

Appellant, as a witness in his behalf, testified that he was awakened on the morning of the shooting by a barking dog. Upon seeing a car stopped in front of his yard he got his shotgun, believing that perhaps thieves might be attempting to steal parts of his car, and went into his yard. He saw Lydia Johnson and her child in his yard, with deceased behind them, and asked Johnson if deceased, whom he had recognized, had a gun or knife on him, and she said she didn’t know, but that “deceased had told her he had received his shotgun back.” He then asked the deceased to leave. The deceased responded by backing up a little bit and then he “brought his hand up either to grab at the barrel or something.” The appellant then told him to “back-up” one more time. Appellant testified that he then heard deceased say “F. . . you” and move toward him, pulling his hands out of his pockets. Appellant saw a knife in deceased’s hand, as deceased attempted to grab the shotgun and “a flash, a quick flash.” Knowing deceased’s reputation for violence, particularly when intoxicated, and for carrying a gun or other weapon, and seeing the knife in deceased’s hand, he feared for his life and serious bodily harm and the life of his mother and Lydia Johnson and her daughter, all of whom were in the yard. He stepped back behind his car and fired his shotgun at deceased. Appellant further testified that after the first shot, the deceased hollered and continued to advance upon him. The appellant then shot the deceased two more times. He then went in his house, taking his shotgun with him, and called the police. No knife or other weapon was found in the yard where the shooting occurred. Appellant also testified about the prior altercation with deceased, his testimony being substantially the same as Johnson’s, supra, except that, according to appellant, deceased’s threat was “If you ever put your hands on my ‘blank’ body I will F. . . you off any time I want to.”

There was considerable testimony to the effect that deceased had a violent temper when drinking, and that he was a man who was likely to carry out his threats, and for carrying a gun, which reputation was well known by appellant. Deceased had told appellant he was a former member of the Clyde Barrow gang, and had once been convicted of murder.

The court charged on the law of murder and the lesser included offense of voluntary manslaughter. The charge also included instructions on self-defense from an unlawful deadly attack, and the defense of others. Due to the disposition of this case, only one ground of error will be discussed.

In ground of error two, appellant contends that the trial court erred in refusing to charge the jury on the law of apparent danger as viewed from appellant’s standpoint. The court’s charge on self-defense included the following instructions:

“Now, therefore, even though you may believe from the evidence beyond a reasonable doubt that the defendant, George A. Jones, intentionally or knowingly caused the death of William Daniel Jones by shooting him with a gun, if he did, but you further believe from the evidence, or you have a reasonable doubt thereof, that at the time he did so, the said William Daniel Jones was using or attempting to use unlawful deadly force against the defendant, and the defendant reasonably believed the use of deadly force and the deadly force used, if any, was immediately necessary to protect himself against William Daniel Jones’ use or attempted use of deadly force, and that a reasonable person in the defendant’s position would not have retreated, and the defendant, acting under such reasonable belief caused the death of William Daniel Jones by shooting him with a gun, you will acquit the defendant and say by your verdict ‘not guilty.’
“However, if you believe from the evidence beyond a reasonable doubt that at the time the defendant caused the death of William Daniel Jones, if he did, the said William Daniel Jones was not using or attempting to use unlawful deadly force against the defendant, or the defendant did not reasonably believe the use of deadly force and the degree of force used, if any, was immediately necessary to protect himself against the said William Daniel Jones’s, use or attempted use of deadly force, or that a reasonable person in the defendant’s position at the time would have retreated, then you will find against the defendant on his plea of self-defense.”

Appellant timely in writing asked the court to instruct the jury that

“It is not necessary that there should be actual danger, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would have were the danger real, as it reasonably appeared to him from his standpoint at the time .

This request was sufficient to call the court’s attention to the failure to charge on apparent danger as it reasonably appeared to appellant from his standpoint at the time, and to preserve error, if any, without the necessity of further objection. Art. 36.-15, V.A.C.C.P.; Sledge v. State, Tex.Cr.App., 507 S.W.2d 726.

V.T.C.A. Penal Code, Sec. 9.31, Self-Defense, in Subsection (a) provides:

“(a) Except as provided in Subsection (b) of this section, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.”

The exceptions set forth in Subsection (b) are not here applicable.

V.T.C.A. Penal Code, Sec. 9.32, Deadly Force in Defense of Person, reads:

“A person is justified in using deadly force against another:
“(1) if he' would be justified in using force against the other under Section 9.31 of this code;
“(2) if a reasonable person in the actor’s situation would not have retreated; and
“(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
“(A) to protect himself against the other’s use or attempted use of unlawful deadly force; or
“(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, rape, aggravated rape, robbery, or aggravated robbery.”

This Court, under the former Penal Code (1925), has consistently held that where the evidence raises the issue of apparent danger, the court, in instructing the jury on the law of self-defense, should tell it that a person has a right to defend from apparent danger to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time. See 28 Tex.Jur.2d, Homicide, Secs. 26, 27, and authorities cited; 4 Branch’s 2nd Edition, Secs. 2087-2089, incl. page 501, et seq.

There is nothing in the new Penal Code which conflicts with the above rule. In fact, as shown above, Section 9.31(a) expressly provides that “a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary,” etc., supra. Also see Section 9.32, supra, which also provides the reasonable belief doctrine in the use of deadly force in defense of a person. Consequently, in the instant case it was not necessary that the jury find that the deceased was using or attempting to use unlawful deadly force against appellant in order for appellant’s right of self-defense to exist. It would be sufficient if the jury found that the appellant reasonably believed, as viewed from his standpoint at the time, that deadly force, when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by deceased. See New Texas Penal Code Forms by Morrison and Blackwell, Section C-9.31, pages 110, 111; 1 Texas Annotated Penal Statutes with Forms, Branch’s 3rd Ed., Sec. 9.32, pages 345, 346.

The charge in the instant case did not instruct on the law of apparent danger as viewed from appellant’s standpoint although appellant’s testimony raised the issue. As quoted above, the charge on self-defense required the jury to find, or have a reasonable doubt thereof, that deceased was using or attempting to use unlawful deadly force against appellant, and that appellant reasonably believed the use of deadly force, etc. (see quote from the charge, supra). In the next paragraph, charging the reverse proposition, the court charged that if deceased was not using or attempting to use unlawful deadly force against appellant, or if appellant did not reasonably believe the use of deadly force and the degree of force used, if any, was immediately necessary to protect himself, etc. (see second paragraph of quote from the charge, supra) “then you will find against the defendant on his plea of self-defense.” This last negative paragraph instructed the jury to find against appellant on his self-defense plea if the jury believed either (1) deceased was not actually using or attempting to use unlawful deadly force, or (2) if the jury found that appellant did not reasonably believe the use of deadly force and the degree of force used by him was immediately necessary to protect himself.

For the error of the court in failing to charge on apparent danger as viewed from appellant’s standpoint at the time, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Earl D. WAGNER, Appellant, v. The STATE of Texas, Appellee.
    No. 52150.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.

      Garcia & Garcia, Edinburg, for appellant.
    Oscar B. Mclnnis, Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

The conviction is for the offense of theft by false pretext under Article 1413, former penal code. Following the return of a verdict of guilty by the jury, the court assessed punishment at five years, probated. On appeal, Wagner challenges the sufficiency of the evidence.

After viewing the evidence in the light most favorable to the jury’s verdict, we conclude that it is insufficient to show a false pretext and reverse the conviction. On April 11, 1973, Ovidio Gutierrez Martinez entered into an agreement to purchase three grain silos from Wagner for $30,-000.00 with a 25 percent down payment and the remainder between May 15 and May 30, 1973, upon delivery of the silos. Martinez paid Wagner $750 in cash at the time of their agreement and returned the next day and gave Wagner a check in the amount of 84,375 pesos, Mexican currency, drawn on the Banco Nacional de Mexico, that amount being equivalent to $6,750.00. This check was deposited by Wagner to his account in the Valley National Bank of McAllen. The silos were never delivered to him nor was the down payment refunded to Martinez.

Martinez testified that he was accompanied by Ramon Cazares and Anastacio Gutierrez when he entered into the transaction with Wagner. When the silos were not delivered in May, Martinez made several attempts to find Wagner by telephone and in person. In the latter part of June he finally found him in McAllen and Wagner then stated that the silos had not arrived because the truck upon which they were being shipped was lost. Martinez then returned to Mexico to await delivery of the shipment. Martinez next saw Wagner in October at McAllen and Wagner said that the truck had not arrived because of snow on the roads. Wagner said that he would be in touch with him the next day.

On cross-examination, Martinez admitted that he had had prior business dealings with Wagner as early as 1971. He then identified defendant’s exhibits numbers 1,2 and 3 as orders placed by him with Wagner on March 25, 1971, April 29, 1971, and May 22, 1971. He testified that at the times of those transactions Wagner required 25. percent down payment and the balance on delivery. He further testified that in accordance with the terms of the complained of transaction, appellant did perform the surveying operations in laying out the area that was to be used for the silos as agreed. Cazares testified that he had seen Wagner in Martinez’s office in Reynosa, Mexico on several occasions. Anastacio Gutierrez, Martinez’s brother, testified that Wagner had installed some equipment at his brother’s place of business in Reynosa but he was not exactly sure of the date.

Appellant testified that he had moved to Texas from Kansas in August- of 1967. He worked with the Texas Concrete Silo Company from 1967 until 1971 designing, drafting and supervising the construction of grain silos. He further testified that during his period of employment with Texas Concrete Silo Company he had done business with several individuals in the Republic of Mexico and that on such occasions contractual agreements were executed requiring a down payment of 25 percent with the balance on delivery at McAllen. In 1971 he became associated with Coale Agri Systems. Shortly after his association with Coale Agri Systems, he had several transactions with Martinez and the terms of those contracts in 1971 were 25 percent down with the order and the balance on delivery in McAllen. Concerning the transaction in question, Wagner testified that defendant’s exhibit No. 9 was a purchase order dated May 2, 1973 constituting an order for the equipment he had agreed to sell Martinez. Defense exhibit No. 11 was identified as a letter dated May 7, 1973 from Coale Agri Systems thanking him for his order but informing him that he would have to pay cash which-was a change from the previous policy where orders had been shipped C.O.D. Wagner testified that at the time he had receive the money from Martinez he had a balance of $10.02 in his bank account and that he was “in a bind” financially. Wagner deposited the $6,750 in his personal bank account and immediately began writing checks to pay other obligations. Wagner stated that the sole reason for his failure to deliver the three silos as initially agreed was that the company had changed its payment policy on the orders to requiring cash before delivery. He stated that it was not until early May when he received the letter identified as defendant’s exhibit No. 11 that the company would require 100 percent payment in advance for all silos before they would be shipped. He testified that at no time did he intend to keep the money and not perform his part of the agreement. He related that he had made several attempts- to get the company to send the equipment according to the terms of its previous policy and that such attempts were to no avail. Wagner stated that he had used the $6,750 to pay for other expenses as he had always in the past used the money given him as a down payment because it represented a substantial portion of the commission fee he would receive at the time of the completion of the sale. He stated that during the months of May, June and July, 1973, he could have refunded the money to Martinez had he desired to do so. He did not make any effort to return the money to Martinez because he still thought that he could work out arrangements with his supplier in accordance with past payment policies.

The indictment in the present case charged appellant with theft under the provisions of Article 1410, V.A.P.C. (1925 Code). A prosecution for theft by false pretext could be had upon a general indictment for theft. Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). Article 1413, V.A.P.C., provided:

“The taking must be wrongful, so that if the property came into possession of the person accused of theft by lawful means, the subsequent appropriation is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” (Emphasis Supplied)

Two modes of committing the offense are embraced in the provision as to lawful taking; namely, obtaining the property by false pretext, and obtaining it with an intent to deprive the owner of the value of the property in question. 55 Tex.Jur.2d, Section 17, page 293. Appellant contends that in order to constitute theft by false pretext it must be proved that a false pretext did in fact exist as well as an intent to deprive the owner of property and subsequent appropriation of it. A conviction for theft under false pretext under the provisions of Article 1413, supra, could have been sustained upon proof of either mode, provided however that the court has so charged the jury. See Clay v. State, 171 Tex.Cr.R. 151, 346 S.W.2d 128 (1961), and Windham v. State, 169 Tex.Cr.R. 451, 335 S.W.2d 219 (1960).

In Paragraph III of its charge, the court instructed the jury as follows:

“To constitute theft by false pretext it is necessary at the time of the taking that the person obtained the corporeal personal property by means of some false pretext and with the intent at the time of the taking to deprive the owner of the value thereof, and to appropriate it to the use or benefit of the person taking, and the offense of theft by false pretext, when such property is so taken and so appropriated, is complete, provided said wrongful intent to take and appropriate said property to the use or benefit of the person taking, and to deprive the owner of the value thereof, existed at the very time the property was taken, and appropriated and this is the case notwithstanding that the property so acquired with such wrongful intent may have been obtained with the consent of the person from whom it was taken.” (Emphasis Supplied)

Then in Paragraph IV the jury was charged as follows:

“Now bearing in mind the foregoing instructions, if you find and believe from the evidence in this case beyond a reasonable doubt, that the Defendant, EARL D. WAGNER, did, in Hidalgo County, Texas, on or about the 12th day of April, 1973, obtain possession of Six Thousand Seven Hundred Fifty and No/100 ($6,750.00) Dollars in money from Ovidio Gutierrez Martinez by representing to the said Ovidio Gutierrez Martinez that he would deliver to the said Ovidio Gutierrez Martinez three fully equipped silos between the 15th and the 30th day of May, 1973; and if you further find and believe from the evidence beyond a reasonable doubt that said representations, if any, of the said EARL D. WAGNER were fraudulent and false, and that he knew that said representations were fraudulent and false at the time he made them and at that time the said Earl D. Wagner knew that in truth and in fact he could not perform any of such acts he represented he could, and that the said Earl D. Wagner knew at the time that such representations were fraudulent and false, and that as a result of said representations so made, if they were made, the said defendant acquired from the said OVIDIO GUTIERREZ MARTINEZ the said corporeal personal property; and if you further find from the evidence beyond a reasonable doubt that said representations, if any, of the said defendant to the said Ovidio Gutierrez Martinez were made with the intent to deprive the said Ovidio Gutierrez Martinez of said personal property and the value thereof, and to appropriate the same to the use or benefit of the defendant, and that he did, in said manner, obtain possession of said property and appropriate the same to his own use or benefit by said representations, if any, and that said wrongful intent, if any, existed at the time of said acquisition, if any, and that said alleged property was of the value of fifty dollars or more, and that said Ovidio Gutierrez Martinez was in lawful possession of said property and parted with the possession thereof to defendant as a result of and in reliance on said representations, if any, of the said defendant, and believed said representations, if any, to be true at said time, then you will find the defendant guilty as charged.”

The court’s charge required a finding that the money was obtained by a false pretext. Both modes of committing theft were required. Not only was a false pretext required under the first mode, but the taking of the money knowing that it did not belong to him with the intent to appropriate and to so appropriate it under the second mode. It would be a closer question if only the second mode had been submitted.

We conclude that the evidence does not show that a false pretext was made at the time Wagner received the money from Martinez. Even though the jury was not bound by Wagner’s testimony, the evidence of Martinez and the documents show that they had previous dealings where 25 percent of the purchase price was paid in advance and the balance when the goods were delivered. Wagner did order the silos and equipment and performed the surveying and marking of the area on which the silos were to be erected. The policy of the company to require payment in advance was changed.

Even if the evidence may have been sufficient to support a conviction under the second mode, “with an intent to deprive the owner of the value thereof,” the evidence is insufficient under the facts of this case to show that the money was obtained by appellant from Martinez under false pretext. For the reasons stated, the judgment is reversed and the cause remanded.

      . Wagner’s counsel cites Article 1429 of the former Penal Code, “Conversion by bailee”, which is not involved. There may be sufficient proof to support such a conviction but we are not called upon to pass on that question because he was not tried for that offense.


author: DALLY, Commissioner.

text:
    John Wayne HUGGINS, Appellant, v. The STATE of Texas, Appellee.
    No. 52303.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    Ernest W. Kuehne, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John Tatum and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This appeal from an order revoking probation was first submitted as a wholly frivolous appeal without merit; it was abated for further briefing by both the appellant’s counsel and the State. Huggins v. State, 538 S.W.2d 136 (Tex.Cr.App.1976).

On appeal from an order revoking probation an original conviction may be collaterally attacked and the judgment set aside if fundamental error was committed. Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972). The original conviction will be set aside in an appeal from an order revoking probation if the indictment was fundamentally defective. Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). The indictment upon which the appellant’s conviction is based is fundamentally defective and requires that the judgment of conviction be reversed.

The appellant’s conviction was for attempted arson, a violation of Article 1316, V.A.P.C. (1925), which in pertinent part reads:

“Any person who willfully attempts to set fire to or attempts to burn, . buildings, or property such as are mentioned elsewhere in Chapter 1, Title 17 of the Penal Code of 1925 . . . , shall be guilty of an attempt to commit the offense of arson . . .”

The indictment under which the appellant was convicted alleges that the appellant:

“. . . did then and there unlawfully set fire to and attempt to burn the house of C. J. Humphries in the city of Dallas, Texas, there situate, . . .”

It is not alleged in the indictment that the appellant acted willfully in the attempt to burn the house. Cf. Willson’s Criminal Forms (7th ed.), Sec. 1830; 4 Branch’s Ann.P.C. (2d ed.) 738, Sec. 2395. Orato v. State, 170 Tex.Cr. 514, 342 S.W.2d 108 (1960); Thomas v. State, 41 Tex. 27 (1874).

“The essential element of the crime of arson is the willful burning of the building, without which that crime has not been committed. Proof, merely, that the building burned is not sufficient to establish that fact. Duncan v. State, 109 Tex.Cr. 668, 7 S.W.2d 79.” Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856 (Tex.Cr.App.1950).

An allegation that the offense was committed willfully is necessary when willfulness is an essential element of the crime. 30 Tex.Jur.2d 587, Indictment and Information, Sec. 30.

“If the language of the statute requires the prohibited act to have been ‘willfully’ done before it constitutes an offense an indictment drawn on such statute should allege the act was ‘willfully’ done.” 1 Branch’s Ann.P.C. (2d ed.) 499, Sec. 519.
“It is an elementary rule of criminal pleading that the indictment must allege the constituent elements of the offense charged. As will be seen by reference to the Article quoted [Art. 270, Penal Code], the word ‘willfull’ is the word used to characterize the acts intended to be prohibited by the statute. It is made an essential element of the crime, and unless it is alleged the indictment does not charge the offense defined, even though it avers, as does the one before us, in general terms the acts complained of were ‘contrary to the form of the statute in such cases made and provided.’ Such an allegation does not supply the deficiency in the description.” Woolsey v. State, 14 Tex.App. 57 (1883).

Furthermore, an allegation that an offense was committed unlawfully and willingly instead of willfully is insufficient if the willful doing of the act is an essential element of the offense. Carter v. State, 115 Tex.Cr. 614, 27 S.W.2d 821 (1930).

For other cases which hold it is necessary to allege an act was willfully done if that is an essential element of the offense see Uecker v. State, 4 Tex.App. 234 (1878); Johnson v. State, 161 Tex.Cr. 217, 275 S.W. 714 (1925); Moore v. State, 112 Tex.Cr. 414, 16 S.W.2d 1089 (1929); Ham v. State, 118 Tex.Cr. 271, 40 S.W.2d 152 (1931); Gonzales v. State, 122 Tex.Cr. 543, 56 S.W.2d 879 (Tex.Cr.App.1933).

The order revoking probation and the original judgment are reversed and the indictment is ordered dismissed.

Opinion approved by the Court.


text:
    Robert Eugene PARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 52655.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    Harry L. Williams, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of possession of cocaine; the punishment, which was enhanced by a prior felony conviction, is imprisonment for 50 years.

The sufficiency of the evidence is not challenged; the appellant’s sole ground of error is that his motion to suppress evidence was erroneously overruled and the cocaine that was introduced in evidence was unlawfully obtained. The appellant in his brief admits that a search of the appellant for weapons was reasonable at its inception, but specifically complains that “the intensity and scope of the search went beyond legal limits when the officers took the defendant’s billfold and searched it in violation of the defendant’s Fourth Amendment rights.”

B. R. Armond, a Fort Worth police officer serving with the Narcotic Intelligence Division, had information from an anonymous source, which corroborated some other information he had, concerning the unlawful possession of drugs at an apartment in a multi-unit complex. Officers then kept the apartment under surveillance for several hours on two or three days in an effort to obtain additional information with which they could make an affidavit to have a search warrant issued. The appellant was seen to enter, stay for a short time, and leave the apartment on several occasions. While on surveillance two police officers saw the appellant and another man come from the apartment, and as the men walked to an automobile parked at the curb they were approached by the officers.

The officers intended to talk with the men in an attempt to get additional information which might be used to obtain the search warrant. After the officers, who were in plain clothes, told the men they were police officers and exhibited their badges, they heard a “rustling motion” from the direction of the appellant. He turned away from the officers and placed his hand under a bulky shirt which he was wearing with the tail out. One of the officers unholstered his pistol, pointed it at appellant, asked the appellant twice to take his hand away from his belt, and when he did not do so, told him to freeze. The officer removed the appellant’s hand from a .32 caliber pistol, which he was carrying at his waist under his shirt. At about the same time, the officers found on the ground nearby a clear celophane bag which contained a white powdered substance; the officer thought the contents of the bat were a controlled substance. The officers then searched the appellant and found in a billfold, which was in the appellant’s pocket, three paper packets filled with a white powdered substance. The white powdered substance found in the billfold and in the package found on the ground was cocaine.

After the officers found that the appellant was carrying a pistol and saw the packet on the ground nearby, they had probable cause to arrest the appellant. This was a custodial arrest, and the full search of the appellant, which included his billfold, was made incident to a lawful arrest and was reasonable. Robinson v. United States, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Merriweather v. State, 501 S.W.2d 887 (Tex.Cr.App.1973); State v. Brasel, 538 S.W.2d 325 (Mo.1976).

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ezell WILLIS, Appellant, v. The STATE of Texas, Appellee.
    No. 53376.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.

      Michael S. Sundquist, Dallas, court appointed, for appellant.
    Henry Wade, Dist. Atty., and Sue La-Garde, Asst. Dist. Atty., Dallas, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

The conviction is for theft of “merchandise” of the value of at least $20.00 but less than $200.00. The court assessed punishment at 90 days in jail and Willis duly perfected this appeal.

The complaint and information upon which this prosecution was instituted alleged the theft of “merchandise.” This description of the property alleged to be stolen was insufficient under previous decisions of this Court then in effect.

Article 21.09, V.A.C.C.P., provided:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. . . . ”

In Luce v. State, 88 Tex.Cr. 46, 224 S.W. 1095 (1920), we held that an indictment for swindling which described the property as “furniture and equipment” was insufficient. In Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040 (1934), an embezzlement indictment which described property as “certain lubricating oil” was held insufficient. In Howk v. State, 138 Tex.Cr.R. 275, 135 S.W.2d 719 (1940), an indictment for swindling was held defective where the property was described only as “personal property of the value of $6.00.” In Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817 (1951), a theft indictment described the property which was alleged to have been stolen as “oil field equipment of the value of over $50.00.” This indictment was held to be fatally defective. In Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43 (1959), a theft indictment which alleged the stolen property to be “seed of the value in excess of $50” was held fundamentally defective even though no motion to quash had been filed. More recently, in Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971), a theft indictment which alleged the stolen property to be “tires of the value of over $50.00” was held fundamentally defective. Only this year, in Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), the description of stolen property in a theft indictment as “barbed wire” was held insufficient.

In the instant case the description of the alleged stolen property as “merchandise” is less descriptive than “tires” or “barbed wire.”

The judgment of conviction is reversed and the prosecution is ordered dismissed.

      . Effective June 19, 1975, this statute was amended to read:
      “If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.

      . The writer is following past decisions but would change the rule (when a majority agrees) and hold that absent an exception to, or motion to set aside, the complaint and information the matter would not be subject to review on appeal.


author: ONION, Presiding Judge.

text:
    Ackley Bifano KEEL, Appellant, v. The STATE of Texas, Appellee.
    No. 53439.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.

      Peter A. Lesser, Dallas, for appellant.
    Henry Wade, Dist. Atty., and William M. Lamb, Dan D. Pitzer, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On September 19, 1975, appellant pled guilty to attempted burglary of a habitation before the court and his punishment was assessed at three (3) years. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions of probation, including

“(a) Commit no offense against the laws of this or any other State or the United States.”

On January 13, 1976, the State filed a motion to revoke probation alleging, among other things, that on December 31,1975 the appellant “did then and there intentionally and knowingly operate, without the effective consent of the owner, Danny M. Cain, one motor propelled vehicle, to-wit: 1967 Chevrolet . . . .”

In his sole contention appellant urges that the court erred in failing to grant his motion to require the State to prove its case using as a standard of proof “beyond a reasonable doubt” instead of “by a preponderance of the evidence.”

Prior to the revocation hearing, appellant filed his written motion on the burden of proof and it was denied. The court stated, “This Court will operate under the principle of the State’s proof of violation of probation by a preponderance of evidence.”

Appellant recognizes that in Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974), the majority of this court determined that the burden of proof placed on the prosecution in a revocation hearing was “by a preponderance of the evidence.” He urges that reconsideration be given the question and that the holding in Scamardo should be reexamined and that it should be expanded by adopting a burden of proof of “beyond a reasonable doubt” in revocation proceedings where the alleged violation is the commission of a criminal offense against the laws of this State, any other State, or the United States.

The majority has carefully reconsidered its holding in Scamardo and adheres thereto.

It is further observed that the facts in the instant case were sufficient to show that appellant committed the offense charged as the basis of revocation even if the burden of proof had been “beyond a reasonable doubt.”

The judgment is affirmed.

      . This writer dissented in Scamardo and still adheres to the belief that the burden of proof in revocation proceedings should be “beyond a reasonable doubt.” See also the dissenting opinion in Kelly v. State, 483 S.W.2d 467 (Tex.Cr.App.1972).


text:
    Christine Denese FIELDS, Appellant, v. The STATE of Texas, Appellee. Phyllis Ann PETERSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51941, 51942.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    Donald W. Rogers, Jr., Houston, court appointed on appeal, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Marshall M. Arnold, 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 APPELLANTS’ MOTION FOR REHEARING

ONION, Presiding Judge.

Our prior opinion on original submission is withdrawn.

The appellants were jointly tried for the Class B misdemeanor offense of intentionally fleeing a peace officer attempting to lawfully arrest them. See V.T.C.A., Penal Code, § 38.04 (Evading Arrest). Upon conviction by a jury of each appellant the court assessed appellant Fields’ punishment at thirty (30) days in jail and appellant Peterson’s punishment at sixty (60) days in jail. On appeal both assert identical grounds of error.

Initially it is asserted that the evidence is insufficient to support the convictions in that the State failed to prove that probable cause existed for appellants’ arrest, “and that said arrest was ‘lawful’ as alleged in the information.”

Each information, omitting the formal parts, alleged that each of the appellants “on or about September 3, 1974, did then and there unlawfully intentionally flee from Sgt. J. W. Kunkel, hereafter styled the Complainant, a peace officer lawfully attempting to arrest the Defendant, knowing that the Complainant was a peace officer.” (Emphasis supplied.)

Sgt. J. W. Kunkel, a police officer attached to the Houston City Vice Squad, testified that while on duty about 2:45 a. m. on September 3, 1974, he observed both appellants “flagging cars” in the 2300 block of Dowling Street, an area frequented by prostitutes plying their trade. He related that he knew the appellants as he had arrested them for prostitution on numerous occasions and was known to both of them. He stated it was his experience that both appellants were inclined to run to avoid arrest so he radioed for assistance. He had two officers station themselves at the end of an alley that ran off Dowling Street and obtained a vice officer to assist him. Kunk-el and his companion both dressed in mufti and in an unmarked police car kept the appellants under surveillance for 15 or 20 minutes and thereafter observed the appellants were successful in going into the street and “flagging down” a car containing two men. As the appellants were talking to the men in the car stopped in the street, Kunkel and his companion approached in the unmarked police vehicle which had been used in previous arrests of the appellants. Kunkel’s companion jumped out and yelled, “Police Officer.” One of the appellants said, “Vice Officers— let’s get out of here.” Both appellants ran down the alley, where they were arrested by the waiting officers.

Article 14.03, Vernon’s Ann.C.C.P., provides:

“Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

V.T.C.A., Penal Code, § 43.02 (Prostitution), provides in part:

“(a) A person commits an offense if he knowingly:
“(1) offers to engage, agrees to engage, or engages in sexual conduct in return for a fee payable to the actor; or
“(2) solicits another in a public place to engage with him in sexual conduct for hire. ...”

Article 6701d, § 81(c), Vernon’s Ann.C.S., provides:

“No person shall stand in a road for the purpose of soliciting a ride, contributions, employment or business from the occupant of any vehicle.”

In the instant case the appellants who had been arrested for prostitution by Officer Kunkel on numerous occasions were observed by the officer in an area frequented by prostitutes in the early morning hours “flagging cars.” After making the arrangements with the other officers above described, Kunkel observed the appellants go into the public street and successfully “flagging down” an automobile containing two men whom they engaged in conversation. Under the circumstances, the officer clearly had probable cause to arrest without a warrant the appellants for violating Article 6701d, § 81(c), supra. In view of the appellants’ numerous arrests for prostitution by the officer involved, there was probable cause for the officer to believe that appellants were flagging the cars for the purpose of soliciting business from occupants of such vehicles in appellants’ business of prostitution. We conclude the State sufficiently proved that Officer Kunkel was “lawfully attempting to arrest” at the time of the flight of both appellants. Considering the jury’s verdict in the light most favorable thereto, we find the evidence sufficient to support the verdict.

Lastly appellant complains that the trial court “committed fundamental error by failing to instruct the jury on the law applicable to the fact question of whether J. W. Kunkel was lawfully attempting to arrest the” appellants.

The court applied the law to the facts and instructed the jury that before they could convict the appellants they must find that Officer Kunkel was lawfully attempting to arrest the appellants. There was no objection to the charge or any request for a special requested charge. See Articles 36.14 and 36.15, Vernon’s Ann.C. C.P. The undisputed evidence showed probable cause for the warrantless arrests. The lawfulness of the arrests was not a contested issue. In absence of a timely objection to the charge or a special requested charge, no error is reflected. It cannot be said that the failure of the court to charge sua sponte as the appellants now contend was calculated to injure the rights of the appellants nor were they deprived of a fair and impartial trial. See Article 36.19, Vernon’s Ann.C.C.P.

The judgments are affirmed.

      . V.T.C.A., Penal Code, § 38.04, provides:
      “(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.
      “(b) It is an exception to the application of this section that the attempted arrest is unlawful.

      “(c) An offense under this section is a Class B misdemeanor.” (Emphasis Supplied.)
      V.T.C.A., Penal Code, § 2.02 (Exception), provides:
      “(a) An exception to an offense in this code is so labeled by the phrase: ‘It is an exception to the application of .
      “(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception.
      “(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.”

      . At no time during the trial did the appellants challenge probable cause to arrest.