author: DALLY, Commissioner.

text:
    Morgan A. ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 53003.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.
    Rehearing Denied Jan. 26, 1977.

      Robert J. Kuhn, Austin, for appellant.
    Ted Butler, Dist. Atty., Gus E. Wilcox, E. Dickinson Ryman and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of possession of heroin; the punishment, which is enhanced by prior felony convictions, is imprisonment for life.

Two grounds of error are presented. The appellant urges that the heroin and his confession were both obtained unlawfully in violation of his constitutional rights; therefore, he says, they were erroneously admitted in evidence.

The heroin was obtained incident to the appellant’s arrest. He asserts that the State failed to show, at the time of trial, that there was probable cause for his war-rantless arrest. The appellant filed a motion to suppress the heroin which he alleged was unlawfully obtained. See Art. 28.01, Y.A.C.C.P. A hearing on that motion was commenced on July 16, 1975, but was recessed because a witness was unavailable. On October 8th, just prior to the trial on the merits, the court heard the remainder of the testimony on the motion to suppress and overruled the motion. After the trial on the merits commenced the appellant’s counsel renewed his objection to the admission of the heroin on the grounds that it had not been shown that the heroin was lawfully obtained. The State at the trial on the merits did not offer the testimony of the witnesses to show probable cause for the arrest nor did the State reintroduce the evidence heard on the motion to suppress. Although the appellant argues that probable cause was not shown during the motion to suppress, he insists, even if it were, that his objection at the trial on the merits placed the burden on the State of again showing that the appellant’s arrest was lawful.

This Court has held that a defendant, to preserve error on appeal, need not renew during the trial on the merits an objection made at a pretrial motion to suppress. Riojas v. State, 530 S.W.2d 298 (Tex. Cr.App.1975), and Graves v. State, 513 S.W.2d 57 (Tex.Cr.App.1974). The corollary is that the State, if it wishes to do so, may rely upon the evidence showing probable cause heard during the motion to suppress and need not again offer evidence at the trial on the merits to show probable cause for the arrest. The statute provides that the record made at a pretrial hearing to suppress evidence, the rulings of the court and the objections and exceptions thereto shall become a part of the trial record of the case on its merits. Art. 28.01, Sec. 2, Y.A.C.C.P.

The defendant’s counsel may either file a pretrial motion to suppress evidence or he may wait until the trial on the merits and object when the alleged unlawfully obtained evidence is offered. The trial court, to determine whether there is probable cause for an arrest, has the option of either hearing a motion to suppress the evidence prior to trial or of the waiting until the defendant’s counsel makes an objection at the trial on the merits when the alleged unlawfully obtained evidence is offered. Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1957); Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974). Whether the issue of the unlawful arrest is presented in a pretrial hearing to suppress or during the trial on the merits, the State has the burden of showing that there was probable cause for a warrantless arrest. Contrary to the appellant’s argument there is no difference in the State’s burden of proof whether the issue is presented at a pretrial motion to suppress hearing or at the trial on the merits.

The appellant also argues that he is entitled to have the jury hear the evidence and to then make a determination of whether there was probable cause for his arrest; he cites Art. 38.23, V.A.C.C.P. Even though he was granted a pretrial hearing to suppress the evidence, he says that after his objection was made at the trial the State must again “shoulder the burden” before the jury and show probable cause for the appellant’s warrantless arrest. This position is untenable; generally, much of the evidence supporting probable cause is hearsay and would be, if offered by the State as original evidence, inadmissible before the jury. Barber v. State, 481 S.W.2d 812 (Tex.Cr.App.1972); Cabrera v. State, 395 S.W.2d 34 (Tex.Cr.App.1965); Wood v. State, 166 Tex.Cr.R. 319, 313 S.W.2d 615 (1958). If the appellant wishes to raise issues of fact before a jury to obtain a jury instruction as provided for in Art. 38.23, V.A.C.C.P. concerning probable cause for his arrest, he may attempt to do so. See Rose v. State, 470 S.W. 198 (Tex.Cr.App. 1971). However, if before a jury, the appellant makes probable cause for arrest an issue, evidence to show probable cause, including hearsay evidence, would become admissible. See Lacy v. State, 424 S.W.2d 929 (Tex.Cr.App.1968).

We have answered the appellant’s contentions, and we must now determine from the record whether there was probable cause for the arrest of the appellant. On February 8, 1974, Pat Dotson, a City of San Antonio police officer, talked to an informer on the street. This informer had given Dotson information from six to ten times, and as a result of that information he had obtained search warrants and made arrests. This informer told Dotson that Pablo Torres was at the La Mónita De Ore Bar, where in about thirty minutes Torres was going to meet Tony De La 0 and that they were going to transfer a large amount of heroin. Detective Joe Saucedo, who was nearby, in an undercover vehicle, was told by Dotson, with a “walkie-talkie,” of the information he had received. Dotson then took a position across the street from the La Mónita De Ore Bar. As a result of his surveillance he saw a red and black 1969 Oldsmobile park near the front of the bar. Within about a minute he saw a 1964 gold Ford driven by Tony De La 0 park behind the Oldsmobile. Dotson, who knew Tony De La 0, and knew he dealt in narcotics, saw him approach the Oldsmobile on the driver’s side. The Oldsmobile was then driven to another position nearby. The driver of the Oldsmobile was not known by Dotson. Tony De La 0 then parked his Ford in front of the La Mónita De Ore Bar and went into the bar. In a short time, at about 5:00 p. m. he came out of the bar; he had in his right hand an object that looked like a brown package which he “nonchalantly placed” in the pocket of the leather coat he was wearing. Tony De La 0 then made a motion toward the driver of the Oldsmobile parked across the street. Tony De La 0 got into his Ford and drove away followed by the Oldsmobile. Officer Dotson, who was driving a Datsun pickup, followed them. Dotson remained in radio contact with Saucedo. Tony De La 0 drove the Ford to the 4600 block of Eldridge where he stopped; the Oldsmobile was stopped behind De La O’s Ford. Dotson then observed Tony De La O leave the Ford, walk back to the driver’s side of the Oldsmobile and hand the brown package through the window to the driver. De La O then returned to his Ford and drove away followed by the Oldsmobile. The automobiles were driven onto the expressway; both proceeded north on Interstate Highway 35 until they reached an access road. Both cars left the freeway and were in slow moving “bumper to bumper” traffic which stopped completely from time to time. Dotson, who was still in communication by radio with other officers, told them that he would arrest Tony De La O and directed the other officers to arrest the occupants of the Oldsmobile.

Saucedo and Sgt. Creed went to the Oldsmobile. The appellant was the driver; his wife was seated on the passenger side. Both the appellant and his wife were placed under arrest. Saucedo noticed the appellant look toward the console of the Oldsmobile and saw him make a motion with his right hand to grab a package. At this time Saucedo grabbed the package which was “alongside of the console.” The brown paper package contained three sealed packets in which there was a brown substance later determined to be heroin. The informer’s tip and the acts which Dotson saw that have been summarized were sufficient to show probable cause for the appellant’s arrest and for a search of the Oldsmobile. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970); Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975); Hull v. State, 510 S.W.2d 358 (Tex.Cr.App.1974). The trial court did not err in admitting the heroin obtained incident to the lawful arrest.

The appellant insists that his confession was involuntarily given to the police and that it was erroneously admitted in evidence; he argues that the only logical inference which can be reached from the circumstantial evidence is that he gave the confession in return for his wife’s release from police custody.

The appellant did not testify at the hearing on the motion to suppress the confession; the circumstances on which he relies are that within approximately one hour after he was arrested he made a written confession and within thirty minutes after he made the confession his wife was released from custody and given possession of his automobile.

A part of the testimony of Sgt. Creed, the officer to whom the confession was made, follows:

“Q. Did you discuss with him why he ought to give a statement to you?
“A. Not really. He wanted to give a statement, he said. We have him and his wife both down there, and they were both in the car. And we had them both down in the narcotics office and were preparing to put both of them in jail. And he said his wife didn’t have anything to do with this incident.
“Q. And so then at that point you said, ‘Tell me about what happened,’ or something to that effect?
“A. He laid it out to me.
“Q. And you then, after you listened to what he had to say, you told him if he would give you this statement in writing, that that would clear his wife and that you would release her?
“A. No, sir, that wasn’t the way it was put at all.
“Q. That’s the way it happened, isn’t it?
“A. Well, that’s what subsequently happened, but I advised him that they were both under arrest for possession of heroin. And he proceeded to tell me his wife didn’t have anything to do with it and that she had merely ridden down here from Austin. He said she didn’t even know what his transaction down here was supposed to be, and he wanted to know what he could do about getting her out of this.
“I said it would be up to the Court, and he said — well, he said, ‘Man, she doesn’t know anything about it.’ And I said, ‘If she doesn’t really know anything about it,’ I said, ‘Are you willing to make a statement to that effect?’ And he said, ‘Yes, I am.’
“And I said all right, and then I got the forms out and gave him a copy to read and let him read them, and then I went over it with him. And I got the typewriter and proceeded to reduce it to writing as he told it to me.”

The Supreme Court of the United States in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489,12 L.Ed.2d 653 (1964), applied to State prosecutions the rule announced for federal prosecutions in 1897 in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, that a confession must be free and voluntary and it must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises however slight, nor by the exertion of any improper influence. See also Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).

A threat made by police officers to arrest or punish a close relative or a promise to free a relative of a prisoner in exchange for a confession may render the prisoner’s subsequently made confession inadmissible in evidence. People v. Steger, 16 Cal.3d 539, 128 Cal.Rptr. 161, 546 P.2d 665 (1976). 80 A.L.R.2d 1428, 1438. However, where no express or implied promise or threat is made by the police, a prisoner’s belief that his cooperation will benefit a relative will not render the prisoner’s subsequent confession inadmissible in evidence. People v. Steger, supra. See 80 A.L.R.2d 1428, 1438.

Even when police have made a vague promise to see “what could be done” about freeing a prisoner’s friends, it did not render a confession made subsequently inadmissible when the subject of leniency for the friends was introduced initially by the prisoner and not the police. People v. Kendrick, 56 Cal.2d 71, 14 Cal.Rptr. 13, 363 P.2d 13 (1961).

When a prisoner has created conditions which place an innocent relative under suspicion and the prisoner desires to extricate the relative from this position by making a confession and the confession is self-motivated, it may deem voluntary and admissible in evidence. People v. Jackson, 19 Cal.App.3d 95, 96 Cal.Rptr. 414 (1971). See also McCutcheon v. State, 159 Tex.Cr.R. 61, 261 S.W.2d 329 (1953); Henson v. State, 159 Tex.Cr.R. 647, 266 S.W.2d 864 (1954); Coleman v. State, 245 So.2d 642 (Fla.App.1971); People v. Wormuth, 35 A.D.2d 609, 312 N.Y. S.2d 28 (1970); United States v. McShane, 462 F.2d 5 (9 Cir., 1972); United States v. Reese, 351 F.Supp. 719 (Pa.D.C.1972); cf. State v. Hilpipre, 242 N.W.2d 306 (Ia.1976); People v. Hogland, 545 P.2d 721 (Colo.App. 1976).

When all of the circumstances presented in this case are considered we conclude they support the trial court’s determination that the confession was made voluntarily and that it was admissible in evidence. The appellant had created the situation which placed his wife, who he said was not guilty of any wrong, under suspicion. He was a mature man who had prior felony convictions and experience with law enforcement officers and of being in custody. He made the confession within an hour after being arrested. He did not offer his or his wife’s testimony, even on the motion to suppress. Creed was under a duty to determine whether or not there was evidence to hold or release the appellant’s wife. A fair interpretation of Creed's testimony shows that it was not he, but that it was the appellant, who first said the appellant’s wife was innocent and initially introduced the subject of leniency for his wife.

The trial court could well conclude that the statement was self-motivated and voluntarily made by the appellant because he wanted his innocent wife who was under suspicion freed and that the appellant’s confession was not induced by promises direct or implied made by Creed. The trial court did not err in admitting the appellant’s confession in evidence.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

license: Public Domain

text:
    James Andrew POSEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 53191, 53207 and 53208.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.

      Tom Mills, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love and Robert C. Hinton, Jr., 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.

These are appeals from convictions for the offense of obtaining a controlled substance by misrepresentation, fraud, deception, and subterfuge, in violation of Section 4.09(a)(3) of the Controlled Substances Act. The punishment assessed in each case is imprisonment for 5 years.

In Cause No. 53,191, the appellant waived indictment and was prosecuted on an information. He then waived a jury trial, entered a plea of guilty before the court, and made a judicial confession that the allegations in the information were true and correct. In Cause Nos. 53,207 and 53,208, the appellant was prosecuted by indictment; he waived jury trials, entered pleas of guilty before the court, and made judicial confessions that the allegations in the indictments were true and correct.

Briefs filed in Cause Nos. 53,207 and 53,208 state that the appeals are wholly without merit and are frivolous. We agree that these appeals are frivolous and they will be affirmed. In Cause No. 53,191, the appellant asserts that the evidence is insufficient to support the judgment. We do not reach this contention since in our review in the interest of justice as required by Article 40.09, Sec. 13, Y.A.C.C.P., we find the information in Cause No. 53,191 is fatally defective; the judgment in that cause must be reversed.

Section 4.09(a)(3) of the Controlled Substances Act provides:

“(a) It is unlawful for any person knowingly or intentionally:
“(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.”

The information, omitting its formal parts, alleges that the appellant on or about January 31, 1976, did unlawfully

“. . . then and there knowingly and intentionally acquire and obtain possession of a controlled substance, namely: Parest, by misrepresentation, fraud, deception, and subterfuge, in that he, the said defendant, did then and there present to Paul Kamleiter, a pharmacist, a prescription purporting to prescribe said controlled substance for Donna Ren-ner.”

The facts constituting an offense denounced by a statute should be alleged so that the conclusion of law may be arrived at from the facts stated. Stribling v. State, 129 Tex.Cr.R. 656, 91 S.W.2d 735 (1936); Pond v. State, 116 Tex.Cr.R. 54, 32 S.W.2d 855 (1930); Jones v. State, 118 Tex.Cr.R. 106, 38 S.W.2d 587 (1931). The pleading must state facts which if true show a violation of the law. Ex parte Vasquez, 122 Tex.Cr.R. 475, 56 S.W.2d 190 (1933); Bassett v. State, 139 Tex.Cr.R. 65, 139 S.W.2d 267 (1940); Taubert v. State, 146 Tex.Cr.R. 582, 176 S.W.2d 955 (1944). Although it is generally sufficient to allege an offense in the terms of the statute without alleging additional facts, if it is the manner and means by which an act is done that makes the otherwise innocent act a criminal offense, it is necessary to allege facts showing the manner and means which make the act a criminal offense. See Bush v. State, 97 Tex.Cr.R. 219, 260 S.W. 574 (1924); Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971); Reeves v. State, 144 Tex.Cr.R. 270, 162 S.W.2d 705 (1942); Parker v. State, 114 S.W.2d 906 (Tex.Cr.App.1938); Kennedy v. State, 86 Tex.Cr.R. 450, 216 S.W. 1086 (1919).

The State recognized that it was necessary to allege additional facts which would lead to the legal conclusion that the appellant knowingly and intentionally acquired and obtained possession of a controlled substance by misrepresentation, fraud, deception, or subterfuge. In attempting to allege these additional facts the State alleged “. . .in that he, the said defendant, did then and there present to Paul Kamleiter, a pharmacist, a prescription purporting to prescribe said controlled substance for Donna Renner . . . ,” but those facts alleged without more, allege only a non-criminal act — not a criminal offense. It is not a criminal offense to obtain a controlled substance for a friend or family member by presenting to a pharmacist a prescription prescribing a controlled substance for that friend or family member which had been properly obtained.

Proof of the facts alleged in the instant information would not show that the controlled substance was obtained by misrepresentation, fraud, deception, or subterfuge. In order to prove that a criminal offense was committed it would be necessary to prove additional facts. Article 21.03, V.A. C.C.P., provides that everything should be stated in an indictment which is necessary to be proved. The information in Cause No. 53,191 fails to allege a criminal offense, and even though it was not attacked in the trial court, it is fundamentally defective and requires that we reverse this judgment of conviction. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

In contrast with the information in Cause No. 53,191, the indictments in Cause Nos. 53,207 and 53,208 do allege sufficient facts. The indictment in Cause No. 53,207, in pertinent part, alleges that the appellant:

“. . . did unlawfully, then and there knowingly and intentionally acquire and obtain possession of a controlled substance, namely, PHENMATRAZINE, by misrepresentation, fraud, deception and subterfuge, in that he, the said defendant, did then and there present to Gary Yenn, a pharmacist, a prescription for said controlled substance, said prescription purporting to prescribe said controlled substance for Beverly Cole, but which said prescription was then and there forged in that it then and there purported to be but had not been written and signed by Kenneth H. Baldwin, and the said prescription was then and there of the tenor following:”

This count of the indictment then incorporated a photographic copy of the prescription purportedly signed by Kenneth H. Baldwin. The indictment in Cause No. 53,-208 is substantially the same as that in Cause No. 53,207. See also the forms suggested in 4 Branch’s P.C., 3rd ed., p. 258, and Morrison and Blackwell, New Penal Code Forms, Sec. 4.09, p. 85.

The judgments are affirmed in Cause Nos. 53,207 and 53,208.

The judgment in Cause No. 53,191 is reversed and the information is ordered dismissed.

Opinion approved by the Court.


text:
    Maggie Christina REJCEK, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53381 to 53383.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.

      Donald R. Scoggins, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Sue La-garde, Asst. Dist. Atty., Dallas, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from orders revoking probation.

On September 18, 1975, the appellant waived indictment and trial by jury and entered a plea of guilty in each of three cases in which she was charged by information with obtaining possession of phenme-trazine, in violation of Section 4.09(a)(3) of the Controlled Substances Act. The punishment assessed in each case was imprisonment for 5 years. The imposition of sentence was suspended and appellant was placed on probation.

On February 20,1976, a motion to revoke probation was filed in each case alleging that appellant had violated a condition of her probation that she would not commit an offense against the laws of this state in that on or about the 15th day of February, 1976, she attempted to obtain a controlled substance by passing a forged prescription.

On March 5, 1976, a hearing was held on the motion to revoke probation. The State offered into evidence appellant’s written judicial confession and stipulations to the facts surrounding the alleged attempt to obtain a controlled substance by presenting a forged prescription on February 15, 1976. The court found that appellant had violated a condition of her probation, reduced her punishment to imprisonment for 2 years, revoked probation, and pronounced sentence.

Appellant’s court-appointed counsel filed a brief in which he has concluded that these appeals are wholly frivolous and without merit. We do not agree.

A fundamentally defective indictment or information may be collaterally attacked on appeal from a revocation of probation. Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). See also Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972).

Since each information under which the appellant was convicted is fundamentally defective, the judgments must be reversed. E. g. the information, in pertinent part, in Cause No. 53,381, alleges that:

“. . . did unlawfully: then and there knowingly and intentionally acquire and obtain possession of a controlled substance, namely: PHENMATRAZINE by misrepresentation, fraud, deception, and subterfuge, in that he, the said defendant, did then and there present to Dwayne Wallace, a pharmacist, a prescription for said controlled substance, said prescription purportedly to prescribe said controlled substance for Tina Hall.”

This is almost the identical pleading which we have held this day to be fatally defective in Posey v. State, 545 S.W.2d 162 (Tex.Cr.App.1977).

For the same reasons stated in Posey v. State, supra, these judgments are reversed and the information in each case is ordered dismissed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Richard McCONATHY, Appellant, v. The STATE of Texas, Appellee.
    No. 52982.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Attorney, David S. McAn-gus, Asst. State’s Atty., Austin for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a final judgment forfeiting a bail bond in the amount of $200.00.

The record reflects that the principal Willie Earl Rusk was charged by information with possession of marihuana of less than two (2) ounces. On May 26,1976 the principal was released on a $200.00 bail with the appellant McConathy as surety. When the principal Rusk failed to appear for trial on February 10, 1976 and the bail bond was forfeited, a judgment nisi was entered on the same day. After a hearing on June 4, 1976, a final judgment was entered forfeiting the bail bond.

Appellant urges the court erred in forfeiting the bail bond since he had relieved himself of all responsibility as surety under the bond when he surrendered the principal into custody of the sheriff’s office on November 2, 1975. He further contends that thereafter he did not consent to the use of the bail bond after the surrender had been effected.

The docket sheet reflects that on October 14,1975,-a notation was made that principal Rusk had failed to appear, the bond was forfeited and the amount of any new bond raised to $500.00. A “pass slip” found in the record dated October 14, 1975 reflects that the principal was present in the court on that date. On November 4,1975 a docket sheet entry reflects the earlier bond forfeiture was set aside and the case was passed to November 6, 1975. On that date the case was passed to December 19, 1975, when the “pass slip” indicated the principal was present. On December 19, 1975 the case was passed until January 27, 1976, on which date the principal was present. On that date the case was passed until February 3, 1976, and then passed until February 10, 1976, at which time the principal was not present. The bond forfeiture was then ordered and the judgment nisi entered.

Appellant-surety McConathy testified at the hearing on whether the judgment nisi should be made final. He stated he was notified of the bond forfeiture of October 14, 1975 and given a 20 day grace period in which to locate the principal and surrender him, an apparent local policy. He testified that on the 19th day after October 14,1975, in order to relieve his liability under the bail bond, he surrendered the principal to the sheriff’s office. That would have been November 2, 1975. Such testimony was undisputed. McConathy also testified he did not file affidavit of surety to surrender since he observed that the principal’s bond had been raised to a $500.00 cash bond and he didn’t think such affidavit was a necessity since the principal would have to make a cash bond to get out of jail. He related that he did not thereafter consent or give anyone permission to have the appellant released under the original bond. Subsequently on November 17, 1975 he filed an affidavit of surety to surrender principal in order to protect himself, but the affidavit was refused by the trial judge, with the judge marking “Refused” on the affidavit near the section requesting the issuance of an arrest warrant. No warrant of arrest was issued. It is not clear from this poorly developed record just when the principal was released from jail.

Article 17.16, Vernon’s Ann.C.C.P., provides:

“Those who have become bail for the accused, or either of them, may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the sheriff of the county where he is prosecuted.”

Article 17.19, Vernon’s Ann.C.C.P., provides:

“Any surety, desiring to surrender his principal, may upon making affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases.”

Article 2372p-3, § 13(a), Vernon’s Ann. C.S., relating to the licensing and regulations of bail bondsmen, provides:

“(a) No person who executes a bail bond as a surety for a principal may surrender the principal unless he forthwith executes an affidavit to be filed with the clerk of the court stating:
“(1) the date the bond was made;
“(2) the fee paid for the bond; and
“(3) the reason for the surrender.
“(b) If the reason for surrender is deemed without reasonable cause by the principal, any agent of the sheriff, or any attorney representing the state or any accused in the proceeding, that person may bring the matter to the attention of the court. “(c) If the court determines that the person who surrendered the principal did so without reasonable cause, the court in its discretion may require that all or a part of the fees paid as a condition for making the bail bond shall be returned to the principal. In making the determination the court shall determine what fees, whether denominated fees for the making of the bond or not, were in fact paid for the purpose of inducing the surety to make the bond.”

Appellant-surety argues that under the provisions of Article 17.16, supra, and since there was no valid bond forfeiture prior to his surrender of the principal to the sheriff of the county where the principal was being prosecuted, he is relieved of his liability under the bond. See Pfeil v. State, 118 Tex.Cr.R. 124, 40 S.W.2d 120 (1931); Rachel v. State, 102 Tex.Cr.R. 97, 277 S.W. 649 (1925); Ex parte Cobb, 69 Tex.Cr.R. 473, 154 S.W. 997 (1913); Hughes v. State, 28 Tex.App. 499, 13 S.W. 777 (1890).

In Wells v. State, 100 Tex.Cr.R. 73, 271 S.W. 918 (1925), this court in construing Article 330, C.C.P., 1911, a forerunner of Article 17.16, supra, held that the statute was to be liberally construed and not taken literally. This court there wrote:

“This statute is intended to confer a benefit on the surety, but not to entail a loss or expense on the state. The object of the law, it would appear, is to give the surety authority, under the statute, to relieve himself of liability under the bond; but, before he is relieved, he must put the state in at least as good a situation as it was before.”

Appellant contends that by surrendering the principal he put the State in as good a situation as it was before the bail bond was made and the principal’s subsequent release was without his consent.

He further argues that when he learned the principal had been released on the same bond without his approval or consent he filed an affidavit of surety to surrender as provided by Article 17.19, supra, but the trial court refused to issue a warrant of arrest, thus thwarting his effort to apprehend the principal.

The State acknowledges the provisions of Article 17.16, supra, but contends that such provisions must be read in light of the provisions of Article 2372p-3, § 13(a), supra. The State contends that now any such surrender under Article 17.16, supra, is ineffective until the surety forthwith executes and files an affidavit in accordance with Article 2372p-3, § 13(a), supra, with the clerk of the court. Such latter statute does require that no surety shall surrender a principal unless the surety shall execute and file the required affidavit. The main thrust of said § 13(a) is to provide a remedy for the principal for a return of all or any part of the fees paid for making the bond if the surrender was without reasonable cause in the opinion of the court after the matter is called to the court’s attention by the principal, attorneys for the parties, or an agent of the sheriff. We conclude that all statutes dealing with the surrender of the principal must be read in light of Article 2372p-3, § 13(a), supra. Appellant-surety in surrendering the principal to the sheriff’s office complied with Article 17.16, supra, and later filed his affidavit in accordance with Article 2372p-3, § 13(a), supra. While there was some delay in filing the affidavit, we do not conclude that the surety’s right to relieve himself of liability under the bond can be defeated by the release of the principal on the original bond between the surrender and the filing of the affidavit without the approval or consent of the surety under the circumstances of this case.

Further, in filing the affidavit the surety not only sought to comply with Article 2372p-3, § 13(a), supra, but also sought compliance with Article 17.19, supra, by requesting the issuance of an arrest warrant. The trial judge refused to issue such warrant. We find no authority for the trial judge to refuse the issuance of the arrest warrant after the requisite affidavit. If the trial judge considered the attempt to surrender without reasonable cause, the remedy is under Article 2372p-3, § 13(a), supra, not the blocking of one of the statutory procedures for surrendering of a principal.

Under the circumstances here presented, the trial court erred in entering final judgment forfeiting the bail bond.

The judgment is reversed and the cause ordered remanded.

      . This is a printed form apparently designed for use in the County Criminal Court of Dallas County designated as “Form 441 — Defendant’s Request for Action” and provides squares to be checked if the defendant is in court or not and who requested the “pass” and the date of any new setting.

      . The appellant-surety did earlier testify that the date of the surrender was “on or about the 10th of November,” but he was not sure of the exact date. He then stated it was within the 20 day grace period. Later he positively stated he returned the principal on the “19th day from October the 14th.” No one introduced the jail records.

      . Another remedy of the principal is a civil action against the surety. Ex parte Vogler, 495 S.W.2d 893 (Tex.Cr.App.1973).

      . It has been held that the filing of an affidavit and the issuance of an arrest warrant under Article 17.19, supra, does not constitute a surrender as to discharge liability under the bond. This liability is not discharged until the principal is taken into custody. Apodaca v. State, 493 S.W.2d 859 (Tex.Cr.App.1973); Thompson v. State, 169 Tex.Cr.R. 495, 335 S.W.2d 226 (1960); Wells v. State, supra.


author: PHILLIPS, Judge.

text:
    Ex parte Norman Lee BIRL.
    No. 53480.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    Ray J. McQuary and Ken G. Anderson, Rosharon, for appellant.

      Henry Wade, Dist. Atty., Jerome L. Cro-ston, Jr., and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is a post conviction application for writ of habeas corpus pursuant to Art. 11.-07, V.A.C.C.P., in which petitioner alleges a violation of the double jeopardy provision of the state and federal constitutions.

On October 23, 1972, petitioner pled guilty in Criminal District Court No. 2 of Dallas County to robbery in Cause No. C72-1597-JI and to murder with malice in Cause No. C72-1598-JI. The court assessed punishment at life imprisonment in each case. No appeal was taken from either conviction.

Petitioner’s application for writ of habeas corpus alleges both offenses arose out of the same transaction and involved the same victim, thus the State should have been allowed to carve only one offense. Copies of the indictments, judgments and sentences in the two cases show both offenses occurred on January 16, 1972, and involved Wallace Page. Pursuant to an order of this Court, an evidentiary hearing was held to develop the facts and circumstances surrounding the two offenses.

Petitioner testified that on January 16, 1972, he entered a small grocery store, shot the clerk and then robbed him. To rebut this testimony, the State introduced a confession petitioner made to the police on January 27,1972, in which he stated that he and Joe McNary entered the store, Joe took money from the cash register, and handed the gun to petitioner. The confession recited:

“. . . As I started out the door I saw the man behind the counter move. I didn’t know if the man was getting up, getting a gun or what. I reached over the counter and shot the man two ot [sic] three times . . .”

The trial court entered findings of fact and conclusions of law and recommended that relief be granted and one of the convictions be dismissed. The trial court’s findings of fact were as follows:

“a. Petitioner’s written confession, given to the police following his arrest, is true and credible. (State’s Exhibit No. 1)
b. That the robbery and murder to which Petitioner confessed were a continuous assault.
c. That the Petitioner’s action of going to the door of the store and then returning to shoot the storekeeper did not sufficiently interrupt the flow of the assault to constitute two separate assaults

In Hawkins v. State, 535 S.W.2d 359, this Court reviewed the recent cases interpreting the doctrine of carving and said, “The common factor has been an uninterrupted and continuous sequence of events or as-saultive acts directed toward a single victim.” Hawkins at page 362.

In Lamberson v. State, 509 S.W.2d 328, this Court held a robbery and murder of the same victim involved two separate transactions, because the two offenses were not committed in the same place and over 30 minutes elapsed between the robbery and the murder. More recently in Ex parte Caldwell, 537 S.W.2d 265, we held a robbery and rape perpetrated on a single victim did not occur in a single transaction and the two offenses were not committed in the same place or at the same time. In Caid-well, two men approached the prosecutrix as she was leaving a store. They forced her to re-enter the building, made several threats, and made her call her employer for the combination of the safe. The two men made several unsuccessful attempts to open the safe. The prosecutrix was then taken to a back room by one of the men, where she was raped and tied up. Under the facts of that case, the act of taking her to another room and raping her was held to be a separate assault.

In Harris v. State, Tex.Cr.App., 516 S.W.2d 931, the defendant was convicted of robbery of a service station attendant and of murder of a police officer during the defendant’s escape from the robbery. In holding the State did not improperly carve two offenses from the same transaction, this Court stated the two offenses involved different victims and the murder did not occur until after the completion of the robbery.

Although petitioner’s testimony and the confession are in conflict as to the sequence of the events, this conflict is not dispositive of the issue presented. Under either version of the facts concerning the robbery and the murder, the petitioner committed continuous and uninterrupted as-saultive acts directed at a single victim in the same place and at the same time. Cf. Ex parte Caldwell, supra. Even if we accept the facts as they are recited in the confession, we cannot agree with the State’s interpretation of the evidence that the offense of robbery was complete when petitioner took the money and the act of standing in the doorway interrupted the transaction so that the murder was a separate assault.

The State asserts the few seconds while petitioner stood in the doorway was sufficient time for the petitioner to form the mens rea of murder and “there is no legal significance between those few seconds and a decision made the next day to go back and eliminate the only eyewitness.” In light of Ex parte Evans, Tex.Cr.App., 530 S.W.2d 589, we cannot agree that the passage of a few seconds is sufficient in itself to interrupt the assaultive action. In Evans, the defendant took a wallet at gunpoint, shot the victim in the stomach and forced him to run away, and took the victim’s automobile. This Court held the continuous nature of the assaultive action prevented the State from carving both robbery by assault and felony theft of the automobile out of the same transaction. In so holding, we said, “The time sequence of events was continuous and did not break the chain of antecedent violence perpetrated upon the complaining witness so as to give rise to the inception of another separate and distinct offense.” Evans, supra, at page 592.

We find the State improperly carved two offenses out of a single transaction and one of the convictions is therefore invalid. The record does not reflect which conviction occurred first, thus we assume petitioner’s plea of guilty and conviction for robbery in Cause No. C72-1597 — JI was valid and prior in time to the conviction for murder with malice in Cause No. C72-1598-JI. See Ex parte Calderon, Tex.Cr.App., 508 S.W.2d 360.

The relief requested by petitioner is granted to the extent the judgment and sentence in Cause No. C72-1598-JI is voided and the indictment in that case is dismissed. The conviction for robbery in Cause No. C72-1597-JI is still a valid sentence and is not disturbed by this ruling.

It is so ordered, and a copy of this opinion shall be sent the Texas Department of Corrections.

DOUGLAS and ODOM, JJ., dissent.


text:
    Ex parte Stephen COMBS.
    No. 53485.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.

      Art L. Keinarth, Sally Ray, Huntsville, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a habeas corpus proceeding instituted under the provisions of Article 11.07, Vernon’s Ann.C.C.P. Petitioner contends that he has been denied due process and equal protection of the law in that he has been denied his appeal from a conviction for murder to the Court of Criminal Appeals as he is an indigent and has been denied an appointed counsel on appeal.

The record reflects that on August 14, 1970 petitioner was indicted for murder with malice in Cause No. 4086 in the District Court of Midland County. During a separate sanity trial in August, 1970, he was found incompetent to stand trial by a jury and was committed to Rusk State Hospital. The petitioner was found competent to stand trial by a jury on May 15,1972 in a restoration hearing. On June 8, 1972 the jury in the trial of Cause No. 4086 returned a verdict of guilty of the offense of murder and assessed petitioner’s punishment at twenty-five (25) years. It appears petitioner was sentenced and gave notice of appeal. On May 14, 1973 the court granted a new trial and petitioner was released on a $10,-000 bond with his father and uncle as sureties.

On May 17, 1974 the petitioner was again tried on the same charge. The jury convicted, and the punishment was assessed at fifteen (15) years. On June 17, 1974 appellant was sentenced and gave notice of appeal and remained on bail. Sometime in July, 1974 petitioner’s father “went off” the bond and petitioner was arrested.

On September 30, 1974 the petitioner filed a pauper’s oath and requested the appointment of counsel on appeal. The request was denied. There does not appear to have been any hearing on the question of indigency. On the same date appellant requested his case remain “on appeal” but asked to be sent to the Department of Corrections. No appellate record of any kind was ever forwarded to the Court of Criminal Appeals. See requirements of Article 40.09, § 1, Vernon’s Ann.C.C.P.

On January 16, 1976 petitioner signed and swore to an application for a writ of habeas corpus claiming the deprivation of counsel on appeal. On May 3, 1976 the trial court signed an order refusing to entertain the application. On May 24, 1976 the Court of Criminal Appeals ordered the trial court to conduct a hearing on indigen-cy, and if the court found that appellant was indigent to appoint appellate counsel and provide a free record. After an eviden-tiary hearing, the court entered findings that petitioner was not indigent. The Court of Criminal Appeals is, however, not bound by the findings of the trial court. See Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968); Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974).

At the time of the evidentiary hearing on June 16,1976 petitioner was shown to be 31 years of age. He testified that he was arrested July 17, 1970, and that in August, 1970 he was committed to Rusk State Hospital after a competency hearing, at which he was represented by retained counsel, two Midland attorneys. He related that about this time he began receiving a monthly check of $495.00 from the Veterans Administration for disabilities. After his restoration -hearing in May, 1972, appellant was tried the first time for murder in June, 1972 and was convicted. At such trial he was represented by the same two Midland lawyers. Petitioner’s father was shown to have paid for counsel and for expert witnesses used at the first trial in the amount of $16,000.00. Petitioner was to repay his father from his monthly disability checks. For the purposes of appeal from the first conviction, the petitioner personally paid $1,400.00 for a transcription of the court reporter’s notes. In May, 1973 the trial court granted a new trial. Thereafter, the appellant was released on a $10,000.00 bond signed by his father and his uncle at no cost to petitioner. Petitioner testified he lived in Dallas and Denton until time of his next trial on May 17, 1974, and that during such time he was unemployed and lived off his disability checks. He related that he retained a Dallas lawyer for $10,000.00 for his second trial, paying $7,000.00 of the fee out of what he had accumulated out of his disability checks and promising to pay the balance of $3,000.00. There appears to have been $2,500.00 to $3,000.00 spent on expert witnesses for the second trial. The money was arranged for by his father. After his second trial and conviction, petitioner testified that notice of appeal was given, but that at the time he had about $500.00 to pay for the transcription of the court reporter’s notes and counsel on appeal, and that he was still indebted to his Dallas lawyer, who had been retained for trial purposes alone, and he was still indebted to his father for expenses of his first trial. In July, 1974 his father “went off” the bond after a “falling out” and petitioner was then confined. After he was confined, petitioner filed a pauper’s oath asking the appointment of counsel on appeal. He testified at the time he was heavily indebted and had only about $500.00. The motion for appointment of counsel was denied. He related the $500.00 would have only been a deposit on the transcription of the court reporter’s notes and that he could not pay the balance. At the time of the evidentiary hearing on June 16, 1976, petitioner testified he had approximately $600.00 in a bank, owned no other property, nor had any stocks or bonds, etc. He related that each month his disability checks had been divided to pay the balance of his Dallas lawyer’s fee, which had been paid off, and to pay his debt to his father. He explained that on June 1, 1975 his disability check had been cut to $280.00 per month and that he had been informed it would be reduced to $188.00 per month on August 1, 1976.

Petitioner’s father, Max Combs, testified that the petitioner owed him $17,000.00 at the time he “went off” the bond; that he had decided he could not financially assist the petitioner any longer. He related that since that time the petitioner had repaid him $3,100.00 and had paid the balance of $3,000.00 to the Dallas lawyer. Apparently the disability checks were sent to petitioner’s father, who made the payments.

The State offered no evidence other than eliciting the amount of the disability checks on cross-examination.

The trial court found that from August, 1970 until June 1, 1975 the petitioner had been receiving a disability check of $495.00 monthly and that after June 1, 1975 until the date of the evidentiary hearing (June 16, 1976) he had been receiving a check of $280.00 per month; that from August, 1970 until the evidentiary hearing he had been somewhere in confinement except from May, 1973 until July, 1974 and while in confinement all his needs as to shelter, clothing, food, etc., was provided by the State or County. He found that during such period petitioner had received somewhere between $30,000.00 and $36,000.00 in disability checks. The court further found that following the second conviction and after petitioner’s re-arrest in July, 1974 petitioner had between $500.00 and $600.00 which was a sufficient down payment for the court reporter to begin a transcription of his notes, and that if the next two months’ disability checks had been used the appellate record could have been paid for within that time period. The trial court found that the petitioner voluntarily chose not to apply this money towards the perfection of his appeal. The record reflects that after his confinement in the Department of Corrections appellant reduced his debt to his father by $3,100.00 and paid the balance of his fee ($3,000.00) to his attorney at the second trial. The court also found that petitioner’s agreement to repay his father was an oral one not subject to any specific time requirement for repayment. The court further found that at the time of the evidentiary hearing petitioner had about $600.00 in a bank and was still receiving $280.00 monthly disability checks. The court concluded petitioner was not an indigent for the purpose of appeal either at the present time or on September 30, 1974.

In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the United States Supreme Court held that indigent defendants were denied equal protection of the law where the merits of the one appeal they had from their convictions were decided without benefit of counsel. See also Lopez v. State, 486 S.W.2d 559 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex. Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), held that an indigent is entitled to a free transcript on appeal. See also Article 40.09(5), Vernon’s Ann.C. C.P.

In Conrad v. State, 537 S.W.2d 755 (Tex. Cr.App. 1976), it was observed that there are no standards set out for the guidance of trial judges in determining the actual indi-gency of a defendant for the purposes of an appeal, and that each case must be decided upon its facts. See Roberson v. State, 538 S.W.2d 788 (Tex.Cr.App.1976); Barber v. State, 542 S.W.2d 412 (Tex.Cr.App.1976). Some guidelines have emerged from the decisional law. In Simmons v. State, 511 S.W.2d 308 (Tex.Cr.App. 1974), this court held that because the defendant made a $5,000.00 appeal bond, that fact alone did not warrant the trial court in refusing to appoint counsel on appeal for the defendant in absence of a hearing. See and cf. Foley v. State, 514 S.W.2d 449 (Tex.Cr.App. 1974). See also Roberson v. State, supra; Barber v. State, supra.

In Conrad v. State, supra, this court, speaking through Judge Douglas, wrote:

“Parents of appellant are not legally bound to pay for the expenses of an appeal. Even though they put up a cash bail for appellant’s appearance, it is not shown that appellant has any way to use those funds.
“Sometimes parents run out of funds and cannot help a child who has been charged with committing crimes. In some cases parents may have funds but will not furnish them for counsel and for the record. If they have money, this does not mean that a defendant is not indigent.
“Trial judges are often faced with questions of indigency after bail has been made and after an attorney has been paid a fee. Even though there has been retained counsel at the trial, this does not bind counsel to furnish a record at his own expense or to handle the appeal without a fee. The question of indigency for appeal purposes is to be determined at the time for the appeal and not at the time of the trial.” (Emphasis Supplied.) See also Roberson v. State, supra.

In the instant case the petitioner was accorded no appeal despite his timely given notice of appeal. Article 40.09, § 1, Vernon’s Ann.C.C.P., requires the clerk of the court to include in the appellate record “whether designated or not copies of the material pleadings, material docket entries made by the court, the charge, verdict, judgment, sentence, notice of appeal, any appeal bond, all written motions and pleas and orders of the court and bills of exception.” This clerk did not do so. Petitioner’s father told the court reporter not to prepare the transcription of the court reporter’s notes or at least not to look to him for payment. Appellant’s counsel, apparently employed only for the second trial alone, did not bring this to the trial court’s attention and asked to withdraw. Appellant filed a pauper’s oath, including a request for the appointment of counsel. The trial court denied the same without a hearing. Appellant requested to be sent to the Department of Corrections and testified he understood his only appeal from the court’s refusal to appoint counsel was through ha-beas corpus proceedings to be brought by the staff counsel for the inmates. Thereafter, he applied what funds he did receive toward the payments of debts. See and cf. Roberson v. State, supra. Thus it appears many factors were involved which prevented the appeal of petitioner’s conviction.

Under the circumstances presented, we conclude that the petitioner is entitled to an out-of-time appeal with appointed counsel. It appears that while without sufficient funds for a fully effective appeal the petitioner has sufficient funds accumulated to pay for or to pay at least a portion of the transcription of the court reporter’s notes. The trial court, upon receipt of this court’s mandate, should determine the exact amount of petitioner’s available funds. If such funds are sufficient to cover the cost of the transcription, then it is the responsibility of the petitioner to secure such transcription. If the funds are not sufficient to pay the full cost of the transcription, the county should be ordered to pay the balance. After counsel has been appointed and transcription obtained, the provisions of Article 40.09, Vernon’s Ann.C.C.P., should be followed in order to accord the petitioner his appeal.

The relief prayed for above is granted in accordance with the foregoing opinion.

It is so ordered.

      . If the record had reached this court with a pauper’s oath, etc., the matter now before the court could have been clarified at a much earlier date.

      . During the hearing petitioner’s father testified it would take $1,100.00 to secure the transcription of the court reporter’s notes. The court reporter did not testify.


author: DAVIS, Commissioner.

text:
    Ex Parte Thomas CLARK, Jr.
    No. 53527.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    Art L. Keinarth, Huntsville, for appellant.

      Ronald L. Wilson, Dist. Atty., and Jack C. Brock, Asst. Dist. Atty., Galveston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P., by the petitioner, an inmate of the Texas Department of Corrections.

Petitioner was convicted for the offense of sale of marihuana on December 10, 1964. The punishment was enhanced by a prior conviction for sale of marihuana and punishment was set at life. The conviction was affirmed on appeal. See Clark v. State, Tex.Cr.App., 398 S.W.2d 763.

Petitioner contends that his Sixth Amendment rights to trial by an impartial jury were denied because he was taken before the jury panel dressed in prison garb and handcuffed to another prisoner.

It appears from the order of the trial court denying petitioner’s application that no evidentiary hearing was had, nor were any findings of fact or conclusions of law filed. The application for writ of habeas corpus reveals that petitioner desired no evidentiary hearing, desiring instead to rely on the record in this Court developed at his trial, such record being before this Court on appeal.

We find that the issues of fact were fully developed at the original trial and we look to those records.

The record on petitioner’s direct appeal reflects that on December 7, 1964, at approximately 3:00 p.m., prior to the selection of a jury in his case, petitioner filed a motion to quash the jury panel, claiming that petitioner had been viewed by the jury panel in handcuffs and prison clothes. Testimony adduced at the hearing on December 8, 1964, on the motion to quash reveals that on December 7 petitioner was brought into the courtroom handcuffed to another prisoner named Eatherly. Both petitioner and Eatherly were dressed in prison attire, consisting of a white “T-shirt” and white duck trousers, with a large “P” stenciled upon both garments. Both of the prisoners were escorted from the back of the courtroom to the “lock-up” in the front of the courtroom by a uniformed and armed officer. In the courtroom at that time were at least part of the jury panel from which the jury for petitioner’s trial was selected.

A jury was selected from the jury panel for a sanity hearing for Eatherly. At noon on December 7, when the Eatherly sanity hearing was recessed for lunch, appellant was taken from the “lock-up” and handcuffed to Eatherly in the courtroom. The prisoners were then led from the courtroom in the presence of some of the members of the sanity trial jury who were present in the courtroom at that time.

Later that afternoon, the jury found Ea-therly insane. Four of the members of the jury at the Eatherly sanity hearing subsequently served as jurors at petitioner’s trial.

A deputy sheriff testified at the hearing on the motion to quash the panel that prisoners may wear any clothes they desire to court if so requested, but that he had no knowledge of whether petitioner had any other clothes at the jail on December 7.

Dorothy Clark, wife of petitioner, testified at the hearing that she was requested to bring civilian clothing to the jail for petitioner, and that she did so on Saturday, December 5, and left them with the jailer. Petitioner was wearing the civilian clothes at the hearing on the motion to quash. The motion to quash was overruled.

Richard Croft, a juror in both petitioner’s trial and the Eatherly sanity hearing, testi-. fied at a hearing on petitioner’s motion for new trial. Croft stated that he was in the courtroom when petitioner was led in handcuffed to Eatherly wearing white jail clothes with the letter “P” on them.

In Hernandez v. Beto, 443 F.2d 634, 636-637 (5th Cir., 1971, reh. denied), a habeas corpus proceeding, the Court stated:

“We conclude that trying Hernandez in his prison clothing infringed a fundamental right — the presumption of innocence.”

Hernandez was made retroactive in Smith v. Estelle, 498 F.2d 631 (5th Cir., 1971), and Hollins v. Beto, 503 F.2d 1373 (5th Cir., 1974), and was followed by this Court in Ephraim v. State, 471 S.W.2d 798.

Hernandez further held, however, that an accused must object to being tried in jail garments; he may not remain silent and willingly go to trial in such clothes and thereafter claim error. See also Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Gray v. Estelle, 538 F.2d 1190 (5th Cir., 1976); Barber v. State, Tex.Cr.App., 477 S.W.2d 868; Williams v. State, Tex.Cr.App., 477 S.W.2d 24.

In the recent decision of Estelle v. Williams, supra, the United States Supreme Court stated that the ultimate consideration in this type of case is whether the accused was compelled to stand trial in prison garb and the failure to object to the court by defendant sufficiently negates the presence of compulsion necessary to establish a constitutional violation. In Estelle v. Williams, supra, the defendant knew he had civilian clothes available, objected to the sheriff, but no objection was made to the court regarding his attire. Defendant’s counsel made references to defendant’s prison clothes during voir dire. Thus, a deliberate trial strategy was indicated.

It does not appear if petitioner knew the clothes were available to him on the 7th, although petitioner wore civilian clothes at the hearing on the motion to quash the jury panel on December 8 and, apparently, throughout the rest of his trial. The record does not reveal that petitioner and his attorney knowingly waived petitioner’s right to appear in civilian clothes as was the case in Estelle v. Williams, supra. See also Gray v. Estelle, supra, where the accused knowingly waived an objection because of apparent trial strategy.

Petitioner timely objected after the Eath-erly sanity hearing at 3:00 p.m. on December 7 by filing a motion to quash the jury panel. This was the day before petitioner’s trial began and before the jury selection. Petitioner seems to have objected at the earliest possible time since his case was not called until the Eatherly sanity hearing was concluded. Clearly, it was not a defensive trial strategy for petitioner to appear in jail clothes before the jury panel handcuffed to Eatherly prior to his trial.

In Ephraim v. State, supra, a case similar to the instant case, a defendant was taken before a jury panel in jail clothes. The defendant filed a motion for continuance until a new jury panel could be impaneled, which was overruled. Relying on Hernandez, this Court reversed because the defendant had timely objected.

Even though petitioner was seen only twice in jail clothing by jurors, and then only for very brief periods, we cannot say that such error was harmless beyond a reasonable doubt. See Hernandez v. Beto, supra, and cases there cited; Ex parte Sla-ton, Tex.Cr.App., 484 S.W.2d 102. We hold that petitioner’s rights regarding presumption of innocence were violated when members of the jury that ultimately served in his case observed him in jail clothes. The petitioner is entitled to the relief he seeks for the reasons stated. He is entitled to the release from further confinement under the conviction attacked and should be delivered to the Sheriff of Galveston County to answer the indictment in Cause No. 29,677.

It is so ordered.

Opinion approved by the Court.

      . While the matter of petitioner being brought before members of the jury in jail clothes was before this Court on direct appeal in 1966, Hernandez v. Beto, 443 F.2d 634, was not decided until 1971.

      . We may take judicial notice of records in this Court “in the same, or related proceedings involving the same or nearly the same parties.” Huffman v. State, Tex.Cr.App., 479 S.W.2d 62, 68; Ex parte Flores, Tex.Cr.App., 537 S.W.2d 458.


author: GREEN, Commissioner.

text:
    Stephen Don GARNER, Appellant, v. The STATE of Texas, Appellee.
    No. 53577.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    Victor R. Blaine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Hogan Stripling, 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.

This appeal is from an order revoking probation. On October 4, 1971, appellant was convicted of burglary with intent to commit theft. Punishment was assessed at four years, probated. Condition (a) of the order of probation was that he commit no offense against the laws of this or any other State or of the United States.

On March 27, 1975 the State filed a motion to revoke probation. An amended motion was filed August 29, 1975, which added to the violations previously alleged the following allegation:

“It is further alleged that on or about December 16, 1974, the defendant committed the offense of theft in Harris County, Texas. He stands indicted with this offense in the 174th Criminal District Court in Cause No. 223,979.”

On October 29, 1975, appellant by his counsel filed the following exception to the amended motion:

“Defendant excepts to such motion wherein it alleges that the defendant committed the offense of theft for the reason it does not apprise the defendant of sufficient facts to enable him to prepare a defense thereto.”

The record reflects that the cause came for hearing on the motion to revoke probation on October 29, 1975, and the State and defendant “announced ready for the hearing before the court; and all preliminary matters having been disposed of, the following proceedings were had, to-wit . . ”

The State then read the motion to appellant, and the following proceedings were had:

“Sir, to this application, the amended motion to revoke probation, how do you plead, true or not true?
“THE DEFENDANT: Not true.
“MR. BLAINE (attorney for defendant): The defendant files his exception to this, particularly that portion where he committed the offense of theft. It is just a blank statement and doesn’t apprise us of the allegations in order to prepare any defense.
“THE COURT: That is overruled.
“MR. BLAINE: He pleads not true.”

Evidence was then introduced, after which the court found that:

. . the defendant did on or about the 16th day of December, 1974, commit the offense of theft in Harris County, Texas, as alleged in the indictment for that offense that was filed in the 174th Criminal District Court of Harris County, Texas, in Cause No. 223,979.”

Limiting his finding of violation to the theft charge, the court revoked probation.

In his first ground, appellant contends the court abused its discretion in overruling his exception to the State’s amended motion to revoke.

While the allegations in a motion to revoke probation do not require the same particularity of an indictment or information, in all fairness the allegations as to violation of probation should be fully and clearly set forth in the revocation motion, so that the defendant and his counsel might be informed as to that upon which he will be called to defend. Tamez v. State, Tex. Cr.App., 534 S.W.2d 686; Graham v. State, Tex.Cr.App., 502 S.W.2d 809; Kuenstler v. State, Tex.Cr.App., 486 S.W.2d 367; Burk-ett v. State, Tex.Cr.App., 485 S.W.2d 578; Campbell v. State, Tex.Cr.App., 456 S.W.2d 918. When the allegations in the motion fail to fully inform the probationer, and the trial court refused to sustain an exception timely filed, the probationer is denied the rudiments of due process. Tamez v. State, supra; Graham v. State, supra; Kuenstler v. State, supra.

In the instant case the record reflects that although appellant stated “not true” when the court called for his plea, his counsel immediately, and before any further action was taken in the hearing, presented his exception to the court, and the court overruled it. The general allegation that appellant on or about December 16, 1974 committed the offense of theft in Harris County, without further identification of the offense alleged to have been committed, did not give appellant or his counsel sufficient notice of the offense on which the State relied for revocation. Ta-mez v. State, supra; Graham v. State, supra; Campbell v. State, supra. The addition of the reference to the indictment in Cause No. 223,979 in the 174th Criminal District Court was not sufficient notice of the offense relied on by the State in view of appellant’s exception. The accused was entitled to have the motion to revoke set forth in clear language the violation of the order of probation relied on for revocation. The failure of the motion to make such allegation was timely called to the trial court’s attention. The court erred in overruling appellant’s exception to the motion to revoke.

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.

DOUGLAS and ODOM, JJ., dissent.

      . The term “on or about” includes any date prior to the presentment of the indictment within the period of limitation. Brown v. State, Tex.Cr.App., 475 S.W.2d 938, 956.

      . The proceedings in the instant case were in the 176th District Court of Harris County.


author: ARCHIE S. BROWN, Commissioner.

text:
    Patrick MASTERS, Appellant, v. The STATE of Texas, Appellee.
    No. 53614.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    R. Doyce Mallett, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty. and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ARCHIE S. BROWN, Commissioner.

This is an appeal from an order revoking probation.

On July 24, 1975 appellant pled guilty to an indictment charging him with burglary of a building. The court found him guilty and assessed punishment at three (3) yeatS and a $300.00 fine, probated.

On March 1,1976 the State filed a motion to revoke probation alleging that appellant had violated probationary condition (a) not to violate any penal laws in that appellant on February 26, 1976 committed theft of gasoline of a value of less than $5.00. The motion further alleged a violation of condition (c) to avoid persons or places of disreputable or harmful character in that on said date appellant associated with Rocky Rawls, a person known to appellant to be on probation for burglary.

On April 28, 1976 when the motion to revoke was called for a hearing, the court mentioned that appellant had filed a motion to suppress the confession on the grounds that it was not voluntary and suggested that he should dispose of that matter prior to a hearing on the merits. The prosecution then stated that since there was no jury, the matter raised in the motion to suppress could be gone into “in the event the confession is attempted to be introduced.” The court agreed and the hearing on the merits proceeded. The State called Charles L. Howard of the Amarillo Police Department as a witness. Howard stated that he gave appellant the proper warning as to appellant’s rights whereupon appellant gave the confession. When the prosecution offered the confession in evidence, counsel for appellant stated:

“Your Honor, we would object at this time to this statement being introduced in evidence as being an involuntary statement, and I would like to tender my client for the sole purpose of testifying as to the voluntariness of the statement.
“And we would also object to this as being the fruit of an illegal arrest

After an extended discussion as to the legality of the arrest, the court overruled appellant’s objection and admitted the confession in evidence without granting appellant’s request to be allowed to testify as to the voluntariness of the confession. After appellant’s counsel cross-examined Officer Howard on the issue of voluntariness the State rested. Appellant’s counsel then again offered appellant for the purpose of testifying on the issue of the voluntariness of the confession. At this point the State asserted that since it had rested, if appellant took the stand it would be for all purposes and not just as to the issue of voluntariness. Appellant’s counsel objected to the State’s contention and reminded the court that it had been agreed that appellant could testify on the limited issue of volun-tariness. The court overruled this objection, thereby denying to appellant his right to testify on the limited issue of the volun-tariness of the confession. Appellant, in his first ground of error, alleges that the court erred in this regard. We agree.

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the United States Supreme Court wrote:

“ ‘It is now axiomatic that a defendant in a criminal case is deprived of the process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.’ ” (Emphasis added) “ ‘Rogers v. Richmond, supra.’ ”

Following the dictates of Jackson v. Den-no, supra, this Court in Lopez v. State, 384 S.W.2d 345, set forth rules and guidelines, as follows:

“In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. . . . Should the defendant testify at such a hearing, the cross-examination of the defendant shall be limited solely to the facts surrounding the voluntariness of the confession, and the defendant shall not be subject to cross-examination except for the limited purpose of facts involving the voluntary nature of his confession, nor shall the defendant be compelled to take the stand upon the trial of the cause upon its merits because of his testimony at this hearing.” See also, Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732.

The refusal of the court to permit appellant to testify solely on the issue of volun-tariness of the confession without subjecting himself to unlimited cross-examination by the prosecution on other issues constituted error.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Ex parte Jack FRIDAY.
    No. 54052.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an application for post-conviction writ of habeas corpus filed pursuant to Article 11.07, Vernon’s Ann.C.C.P.

Petitioner was convicted in Cause No. 5254 in the 142nd Judicial District Court of Midland County on September 18, 1975 of the offense of aggravated assault with a deadly weapon. Petitioner’s punishment was assessed by the court at life imprisonment in the Department of Corrections as a result of two prior felony convictions alleged and proved for the enhancement of punishment. No appeal was perfected from this conviction.

Petitioner filed an application for writ of habeas corpus in the convicting court challenging the validity of this life sentence in Cause No. 5254, contending that the two prior convictions alleged for enhancement of punishment had been previously used for enhancement to life in 1961 in another case in the same court, Cause No. 2680 (unlawful possession of a bomb). The two prior convictions supposedly used for enhancement in both cases were a 1952 burglary conviction in Cause No. 1707 and a 1946 burglary conviction in Cause No. 1456, in the then 70th District Court of Midland County. If petitioner’s contentions are true, then the life sentence in Cause No. 5254 would have to be vacated. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App.1975); Ex parte White, 538 S.W.2d 417 (Tex.Cr.App.1976); Rollins v. State, 542 S.W.2d 163 (Tex.Cr.App.1976).

Relief was denied by the convicting court without a hearing, and the record was forwarded to this court. This court then entered an order on October 20, 1976 remanding this cause to the trial court for findings of fact and conclusions of law to determine the factual basis for the petitioner’s claims with instructions to forward such findings to this court.

No findings of fact or conclusions of law were made. Instead the trial court on November 15, 1976 entered an order entitled “Order of the Court Granting Defendant a New Trial” in Cause No. 5254. The State then filed a motion to dismiss the indictment in Cause No. 5254, which was granted by the trial court. These records were forwarded to this court.

On December 6, 1976 this court entered another order directing the trial court to make the required findings of fact and conclusions of law. In said order it was noted that the trial court does not have the authority to grant a new trial after a felony conviction becomes final, and that only the Court of Criminal Appeals has the authority to grant relief as a result of a post -conviction writ of habeas corpus. See Article 11.07, § 3, Vernon’s Ann.C.C.P.; State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (1961); Ex parte Johnson, 153 Tex.Cr.R. 619, 224 S.W.2d 240 (1949). It was also noted that the trial court’s order of November 15, 1976, purportedly granting petitioner a new trial in Cause No. 5254, is unauthorized and void.

On December 20, 1976 the trial court entered its “Findings of Fact and Conclusions of Law.” This instrument was more of an explanation of why the trial court had taken certain actions rather than findings as to petitioner’s contentions. However, the trial court forwarded the judgments, sentences, indictments, etc., in the various causes as this court had requested in its last order. From the record before us, it can be established that Cause No. 1707, the 1952 burglary conviction, was used for enhancement in both Cause No. 2680 in 1961 and again in Cause No. 5254 in 1975. What has apparently been overlooked by all parties is that the other prior conviction used for enhancement in Cause No. 2680 in 1961 was a 1946 burglary conviction in Cause No. 1458, while the other prior conviction used for enhancement in Cause No. 5254 in 1975 was a 1946 burglary conviction in Cause No. 1456. The records reflect that on March 4, 1946 the petitioner entered guilty pleas before the Midland County District Court in both Cause No. 1456 and Cause No. 1458. They were separate and distinct offenses, and it thus does not appear that either of these convictions has been used more than once for enhancement of punishment. Petitioner’s contention that Cause No. 1456 was used for enhancement in both Cause No. 2680 and Cause No. 5254 is not supported by the record.

Since Cause No. 1707 was in fact used for enhancement first in Cause No. 2680 and subsequently in Cause No. 5254, its subsequent use was improper and unauthorized. Caravajal v. State, supra; Shaw v. State, supra. The life sentence in Cause No. 5254 must be vacated.

The primary offense in Cause No. 5254 was aggravated assault with a deadly weapon, a felony of the third degree. See V.T.C.A., Penal Code, § 22.02. While the prior felony conviction in Cause No. 1456 has not been shown to have been previously used for enhancement, it is available to be used for enhancement in Cause No. 5254 so that the punishment can be assessed as a second degree felony. V.T.C.A., Penal Code, § 12.42(a). The punishment for a second degree felony is for any term of not more than 20 years or less than 2 years.

The petitioner is entitled to partial relief. Since the trial court assessed punishment at the original trial during the penalty stage without the intervention of a jury, the trial court is instructed to bench warrant the petitioner from the Department of Corrections and to resentence him in Cause No. 5254 in accordance with this opinion.

It is so ordered.

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