author: TODD, Judge. DROWOTA, Judge,

text:
    BANK OF HENDERSONVILLE, Plaintiff-Appellee, v. RED BARON FLYING CLUB, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 2, 1977.
    Certiorari Denied by Supreme Court July 31, 1978.
    W. Harold Bigham, Nashville, for plaintiff-appellee.
    Ernest Williams, III, Memphis, for defendant-appellant.
   OPINION

With the concurrence of participating judges, the original opinion has been abridged for publication.

TODD, Judge.

The defendant, Red Baron Flying Club, Inc., has appealed from the Chancellor’s decree sustaining the lien claim (security interest) of the plaintiff, Bank of Hender-sonville, in respect to an aircraft purchased by appellant from Mid-South Aviation, Inc.

The facts are uncontroverted. Mid-South, an aircraft dealer, sold to Red Baron the subject aircraft out of its (Mid-South’s) stock of several aircraft. The plane was paid for by cashier’s check. At the time, the appellee bank held a security interest upon a number of Mid-South’s aircraft, including the subject plane. The bank’s security interest was at all pertinent times duly recorded with the F.A.A. Aircraft Registry. Mid-South failed to satisfy the security interest and this suit was filed to enforce same in respect to the subject plane.

The sole question is one of law: whether a security interest upon an airplane held as part of a dealer inventory duly recorded as required by federal law, is superior to the rights of a purchaser for value from the dealer without actual notice of the security interest.

T.C.A. § 47-9-307 provides:

“47 — 9-307. Protection of buyers of goods. — A buyer in ordinary course of business (subsection (9) of § 47-1 — 201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence. [Acts 1963, ch. 81, § 1 (9-307); 1965, ch. 362, § 1.]”

T.C.A. § 47-9-104 provides in part:

“47-9-104. Transactions excluded from chapter. — This chapter does not apply
(a) to a security interest subject to any statute of the United States such as the Ship Mortgage Act, 1920, to the extent that such statute governs the rights of parties to and third parties affected by transactions in particular types of property; or . . .”

“Comments to Official Text” under said statute include the following:

“Purposes:
To exclude certain security transactions from this Article [Chapter].
1. Where a federal statute regulates the incidents of security interests in particular types of property, those security interests are of course governed by the federal statute and excluded from this Article [Chapter]. The Ship Mortgage Act, 1920, is an example of such a federal act. Legislation covering aircraft financing has been proposed to the Congress, and, if enacted, would displace this Article [Chapter] in that field. The present provisions of the Civil Aeronautics Act (49 U.S.C. § 523) call for registration of title to and liens upon aircraft with the Civil Aeronautics Administrator and such registration is recognized as equivalent to filing under this Article [Chapter] (Section 9-302(3)); but to the extent that the Civil Aeronautics Act does not regulate the rights of parties to and third parties affected by such transactions, security interests in aircraft remain subject to this Article [Chapter], pending passage of federal legislation.”

Title 49 §§ 1403, 1406, of the U.S. Code provides:

“§ 1403. Recordation of aircraft ownership
Establishment of recording system
(a) The Secretary of Transportation shall establish and maintain a system for the recording of each and all of the following:
(1) Any conveyance which affects the title to, or any interest in, any civil aircraft of the United States; .
Effect of recording
(d) Each conveyance or other instrument recorded by means of or under the system provided for in subsection (a) or (b) of this section shall from the time of its filing for recordation be valid as to all persons without further or other recordation, .
§ 1406. Law governing validity of certain instruments
The validity of any instrument the recording of which is provided for by section 1403 of this title shall be governed by the laws of the State, District of Columbia, or territory or possession of the United States in which such instrument is delivered, irrespective of the location or the place of delivery of the property which is the subject of such instrument. Where the place of intended delivery of such instrument is specified therein, it shall constitute presumptive evidence that such instrument was delivered at the place so specified.”

Appellant insists that the federal statute just quoted does not aptly preempt and remove airplanes from the provisions of the state statute which favor a purchaser in ordinary course of business over the holder of a mortgage on inventory.

Appellee insists that the federal statute does preempt the subject of priority of interests in aircraft and creates a right in favor of the holder of a security interest in an aircraft held in stock by a dealer superi- or to that of a purchaser from the dealer in ordinary course of business.

In Texas National Bank of Houston v. Aufderheide et al. (U.S.D.C.Ark. — 1964), 235 F.Supp. 599, there was a “floor plan” lien, duly recorded with the F.A.A., but the mortgagee was shown to have followed a practice of allowing the dealer to sell and deliver planes out of stock in violation of the mortgage instrument. The District Court held that the mortgagee had, by its conduct, waived any priority of rights against the purchaser and said:

“[1] There is no question that the Congress by the statutory enactments which have been mentioned has preempted the field of registration and recording of title instruments affecting commercial aircraft, Pacific Financial Corporation v. Central Bank & Trust Co., 5 Cir., 296 F.2d 68, 71, so that protection is no longer afforded to a purchaser or mortgagee of such an aircraft by a recording of his conveyance or mortgage under a State recording statute.
“[2] On the other hand, compliance with section 1403 does not validate a conveyance or other instrument which is lacking in initial or inherent validity as a contract document between the original parties, as, for example, a mortgage or conveyance obtained by fraud or without consideration, or executed by an incompetent party. Questions of such inherent or original validity must be determined by reference to applicable State law. This has been expressly recognized by the Congress. See in this connection the Act of June 30, 1964, P.L. 88-346, 78 Stat. 236, which statute, among other things, provides that the validity of a conveyance or other instrument affecting an aircraft is to be determined by the law of the place where the instrument is delivered. In the Court’s estimation the validity about which Congress was talking in the 1964 Act is what the Court has referred to as the initial or inherent validity of the instrument in question.
“[3] While the act of recording a conveyance or mortgage under the terms of the federal statute or any other recording statute does not confer inherent validity upon an instrument otherwise basically invalid, proper recordation can, and usually does, have a substantial bearing on the validity of the instrument as to third persons, and as to the priority to be accorded to that instrument with respect to other claims or liens affecting the property involved whether arising before or after the recordation.
II.
“[5,6] It does not follow, however, that section 1403 has repealed or abolished the general rule of chattel mortgage law that when a mortgagee consents to the sale of a mortgaged chattel free of lien by the mortgagor, the purchaser takes free of the mortgage lien and his rights are superior to those of the mortgagee. 15 Am. Jur.2d, Chattel Mortgages, §§ 150, 151, and 153; 14 C.J.S. Chattel Mortgages § 262. And a provision in a chattel mortgage prohibiting a sale of the mortgaged chattel without a mortgagee’s consent is waived if the mortgagee knowingly permits the violation of such provision. 15 Am.Jur.2d, p. 324.” 235 F.Supp., p. 603.

In State Securities Company v. Aviation Enterprises, Inc. et al. (10th CA, 1966), 355 F.2d 225, the dealer executed a mortgage on the subject aircraft which was subsequently sold to a customer who had no knowledge of the mortgage which was not recorded with the F.A.A. as required by federal law. The purchaser did not record his bill of sale with the F.A.A., but the U.S. Court of Appeals sustained the rights of the purchaser as superior to those of the mortgagee stating:

“[1,2] By providing a federal system for registration of conveyances and liens affecting the title to aircraft, Congress has preempted that field and state recording statutes are not applicable to such title instruments. However, questions of the validity of such title documents, actual notice, good faith purchaser status, and the like, must be resolved under state law.
“In Bordman Invest. Co. v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72, 76-77, the court held in part as follows:
‘In almost all jurisdictions the recognized rule is that where a mortgagee of an automobile or other chattel knows the mortgagor is a dealer, buying to sell the automobile or other chattel in the regular course of business, and consents to its sale by the mortgagor, the purchaser takes free from the mortgagee’s lien.
‘In such situations, as between an owner or mortgagee who entrusts the chattel to another for purposes other than a complete sale and the one who buys the chattel from the latter without notice of the seller’s lack of authority to sell, the courts have evolved the estoppel theory based on the maxim that, as between two innocent victims of fraud, the one who makes possible the fraud on the other should suffer. It is felt that under such circumstances a purchaser in good faith of a motor vehicle from the stock in trade of a recognized dealer is not bound to investigate the dealer’s title in anticipation of the unknown claims of a mortgagee or seller of such vehicle who should be aware of the danger of the buying public being misled and has made the situation possible by permitting the dealer to have the automobile in his stock in trade.’ ” 355 F.2d, p. 229.

Northern Illinois Corporation v. Bishop Distributing Co. et al., USDC Mich. 1968, 284 F.Supp. 121, involved the same situation and decision as Texas National Bank, supra, with quotations from the Uniform Commercial Code (§ 9-307 supra,) and the “Comment” to § 9-104, quoted supra. Also said opinion states:

“Plaintiff argues that because aircraft are much more costly than household goods or cars, a buyer of an aircraft should be required to conduct an aircraft title search. In this respect, plaintiff contends that all that would have been required of the defendants would have been for them to check with the Federal Aviation Agency in Oklahoma City, Oklahoma.
“[9] We question whether the pricé of goods should determine the duties and obligations of the buying public. Plaintiff was aware that Mich-Air Mooney, Inc. purchased the aircraft in order to sell it.
“[10-13] Although both plaintiff and defendants are innocent parties to a very unhappy chain of events, in determining who should bear the loss we conclude that buyers in the ordinary course of business should not be required to act at their peril. As Chief Judge Henley said in Texas National Bank of Houston, supra:
‘Ordinarily, when a person goes into a merchant’s place of business to make a purchase, whether it be of an automobile, a television set, a washing machine, or a pound of nails, the purchaser ought to have the right to assume that the merchant has a right to sell the commodity in question and should not be required to make a record search before purchasing or to see to it that the merchant obtains a valid release of the item from a bank floor plan before delivering it to the purchaser and receiving his money or obligation. The Court sees no reason why that right should not extend to the purchaser of an airplane who buys it from a recognized dealer from a regular inventory or display and in the ordinary course of business. 235 F.Supp. at 604.” 284 F.Supp., p. 125.

United States Aviation Underwriters v. WTAE Flying Club et al., U.S.D.C.Penn. 1969, 300 F.Supp. 341, was an interpleader suit to determine right to proceeds of insurance policy on an aircraft which was encumbered with a duly recorded lien at the time it was purchased from a dealer. The District Court awarded proceeds to the purchaser on grounds of misconduct of the lienholder and said:

“[8] Steensen was a buyer of the Cessna in the ordinary course of business. A buyer in the ordinary course of business is one who in good faith and without knowledge that the sale to him is in violation of the ownership rights or the lien of a third party in the goods, buys in ordinary course from a person in the business of selling goods of that kind. Steensen was such a buyer.” 300 F.Supp., p. 348.

In Suburban Trust & Svgs. Bank v. Campbell, 1969, 19 Ohio Misc. 74, 250 N.E.2d 118, the rights of a purchaser in ordinary course of business were held superior to the lien of a chattel mortgage executed by the dealer after the sale to renew a prior mortgage recorded before the sale. Although decided on principles of novation, the opinion also supports the superior rights of the purchaser of an airplane in ordinary course of business.

In Southern Jersey Airways, Inc. v. National Bank of Secaucus, 1970, 108 N.J.Super. 369, 261 A.2d 399, there was a contest between the holder of an unrecorded mechanic’s lien in possession and the holder of a prior mortgage duly recorded with the F.A.A. The New Jersey Appellate Division held in favor of the mechanic and said:

“[5-7] Thorough study of the matter convinces us that Congress did not intend by adoption of the cited recordation procedure necessarily to displace and preempt all state law otherwise applicable bearing upon priorities of lien and title interests in aircraft. Rather was it the intent, in relation to aircraft, to substitute for the multiplicity of state registration or recording systems a single preemptive federal system for registering (1) instruments of title, comparable to state registration of titles to motor vehicles, and recording (2) security documents of the kinds commonly comprehended by state recording laws concerning written consensual security interests affecting personal property. The reason was that the ready mobility of aircraft and their common use across state lines made it cumbersome and burdensome for persons having concern with title to or incum-brances on aircraft to have to record or search in all. states or localities which could arguably be claimed to constitute the proper recording situs in relation to the specific owner or incumbrancer of a particular aircraft. See Scott, ‘Liens in Aircraft: Priorities,’ 25 J. Air L. & Com. 193, 200, 203 (1958); Case Note, 48 Colum.L.Rev. 1248 (1948). Thus, failure to federally record a recordable instrument would entail the specific consequences declared by § 1403(c), but no other. Federal recording would validate a title or in-cumbrance as against any claim of invalidity based upon absence of state recording, but would not necessarily create affirmative priority as against competing rights declared by applicable state law.
“. . . Professor Gilmore’s authoritative text states:
The several provisions summarized above obviously amount to a good deal more than a recording system (like the patent and copyright provisions) but are still a good deal less than a comprehensive coverage of security interests in aircraft; they are much less comprehensive than the Ship Mortgage Act, which goes into great detail on the formal requisites and priorities of ship mortgages and includes sections on foreclosure and on the status of mortgages on foreign flag ships. There is of course no plenary federal power over air transportation comparable to the patent and copyright powers or even to the extention [sic] of the ‘judicial power of the United States’ to admiralty and maritime cases. Here Congress acts under the interstate commerce and the bankruptcy powers — which have, however, become so extensive that there is not likely to be any constitutional challenge to anything Congress has done or may do in the future. A truly comprehensive security statute for aircraft — or indeed a statute covering security interests in transportation equipment of any kind, by air, rail, road and water — would undoubtedly be within the power of Congress to enact; there is, however, little likelihood that such a federal preemption of the field will take place in the near future. [1 Gilmore, Security Interests in Personal Property, § 13.5, at 423 (1965).]
“Except for the engine and spare parts liens, § 508 is not in any sense a substantive statute. Therefore, it is believed, apart from these substantive provisions, the question of formal requisites, and the operation of the recording system, state law should apply to determine any question arising in connection with a security interest in aircraft. The argument for a federal law solution is even weaker here than under any of the other federal statutes we have so far discussed: § 503 is much less comprehensive than the Ship Mortgage Act and there is not the same federal source of power that could be alleged in favor of a federal solution in the fields of copyright, patent and admiralty law. The cases decided under § 503 all seem to assume that state law is generally applicable and that § 503 is clearly an ‘interstitial’ statute, which goes as far as it goes but no further. [Id., at 426-427].
“Striking a similar note is Scott, supra, 25 J. Air L. & Com., at 202, wherein, after discussing the case holding the federal act constitutionally applicable to aircraft used solely in intrastate commerce, the writer says:
“Meaning of Section 503 [now § 1403]. Accepting the constitutional validity of the section, we are then faced with the more important question — what priority in right is obtained by a security holder through federal recordation? Clearly it is not axiomatic that recordation assures priority as to subsequent lienors, and the statutory language cannot be construed in such a way as to leave the matter free from doubt. The statute merely provides that conveyances or other instruments filed for recordation ‘shall be valid as to all persons. . . . ’ It does not speak in positive terms of priority, as does for instance the Ship Mortgage Act of 1920 discussed above.
“Most of the decisions having to do with the federal act have been careful to delineate its recording provisions as preemptive and exclusive only in respect of place and requirements of recording and the effect of failure to record a federally recordable conveyance or instrument as to subsequent bona fide purchasers or lienors without notice. Aircraft Investment Corp. v. Pezzani & Reid Equipment Co., 205 F.Supp. 80, 82 (E.D.Mich.1962); American Aviation v. Aviation Insurance Managers, Inc., 244 Ark. 829, 427 S.W.2d 544, 547 (Sup.Ct.1968); Blalock v. Brown, 78 Ga.App. 537, 51 S.E.2d 610, 9 A.L.R.2d 476 (Ct.App.1949); State Securities Company v. Aviation Enterprises, Inc., 355 F.2d 225, 229, 22 A.L.R.3d 1263 (10 Cir.1966); Marsden v. Southern Flight Service, Inc., 227 F.Supp. 411, 415 (M.D.N.C.1961); cf. Lochhead v. G. A. C. Finance Corp. of Camelback, 6 Ariz.App. 539, 434 P.2d 655 (Ct.App.1968); Curtis v. Carey, 393 S.W.2d 185, 189 (Tex.Ct.Civ.App.1965).
“Plaintiff suggests that Congress has preempted the entire field of conveyancing of interests in aircraft. This view is erroneous, notwithstanding in re Veterans’ Air Express Company, 76 F.Supp. 684 (D.N.J.1948), which contains dicta on which plaintiff relies. Congress has said only that until an instrument purporting to convey an interest in an aircraft is recorded, in accordance with the Act, it is void as to third parties without notice. Upon federal recordation, it is valid without further recording. [205 F.Supp., at 82]” 261 A.2d, pp. 403, 404, 405.

In Dowell v. Beech Acceptance Corp., 1971, 3 Cal.3d 544, 91 Cal.Rptr. 1, 476 P.2d 401, the California Supreme Court, relying principally upon decisions of the California Court of Appeals, determined that a lien upon part of an aircraft dealer’s stock in trade, duly recorded with F.A.A., was superior to the claim of a purchaser in ordinary course of business. The California Court was of the opinion that the federal statute did preempt all phases of lien law in respect to aircraft and thereby created an exception to the provisions of U.C.C. as to purchasers in ordinary course of business. The same opinion relies upon the annotation in 22 A.L.R.3d 1270. The pertinent portion of said annotation is § 12(b), pp. 1292 and 1293 wherein only two cases are mentioned. One is Dawson v. General Discount Corp., 82 Ga.App. 29, 60 S.E.2d 653 (1950) which was not based upon the U.C.C. protection of purchasers (from a dealer) in ordinary course of business. The unsuccessful defendant, Dawson, purchased the plane from an individual who had not satisfied the lien of a duly recorded conditional sales contract.

The only other case mentioned in said annotation is Texas Nat. Bk. v. Aufderheide, a 1964 case already discussed, wherein the rights of the purchaser were upheld.

The Dowell decision also relies upon three U.S. District Court decisions and two State decisions which involved superiority of recorded liens over unrecorded mechanics liens and one State decision involving superiority of prior recorded chattel mortgage over subsequently recorded chattel mortgages. None of the out-of-state authorities relied upon in Dowell involves the rights of a purchaser in ordinary course of business from a dealer.

Dowell does recognize Northern Ill. Corp. v. Bishop Co. and Texas National Bank v. Aufderheide, supra, but “simply declines to follow them.”

Dowell ignores State Securities Co. v. Aviation Enterprises Inc. (U.S. Court of Appeals), U. S. Aviation Underwriters v. WTAE Flying Club (U.S. District Court, Penn.), and Southern Jersey Airways v. National Bank of Secaucus (New Jersey Appellate Div.), all discussed supra.

Subsequent decisions have been contrary to the holding of Dowell.

In Carolina Aircraft Corp. v. Commerce Trust Co. (Fla.App.1974), 289 So.2d 37, the lien of a mechanic in possession was held to be superior to that of a prior recorded mortgage.

To the same effect is Industrial National Bank of Rhode Island v. Butler Aviation International, Inc., U.S.D.C.E.D.N.Y. — 1974, 370 F.Supp. 1012.

In Idabel National Bank v. Tucker, Okl.App.1975, 544 P.2d 1287, Cert. Den. by Okl. Supr.Ct., the title and right of a purchaser in ordinary course of business was held to be superior to that of a bank holding a prior recorded mortgage from the dealer. After quoting applicable and persuasive portions of the legislative history of the 49 U.S.C.A. § 1403, the Oklahoma Court adopts the language of Texas National Bank v. Aufder-heide, supra as follows:

“Ordinarily, when a person goes into a merchant’s place of business to make a purchase, whether it be of an automobile, a television set, a washing machine or a pound of nails, the purchaser ought to have the right to assume that the merchant has a right to sell the commodity in question and should not be required to make a [second] search before purchasing or to see to it that the merchant obtains a valid release of the item from a bank floor plan before delivering it to the purchaser and receiving his money or obligation. The Court sees no reason why that right should not extend to the purchaser of an airplane who buys it from a recognized dealer from a regular inventory or display and in the ordinary course of business.” 544 P.2d, p. 1291.

Appellee relies upon only one authority, Dowell, and states that all other authorities are ill considered and that Dowell is dominant because the U.S. Supreme Court denied certiorari in that case.

The denial of certiorari by the United States Supreme Court cannot be ignored, but its action (or inaction) must be considered in the light of the repeated assertions of that Court that its denial of certio-rari is not proper basis for unwarranted inferences of what the holding of the Court might have been had it granted certiorari. It is also significant that Dowell preserved and extended the encroachment of federal law in the state field of commercial law, rather than restricting the application of federal law. State decisions of the former type have been rarely reviewed by the U.S. Supreme Court, whereas decisions of the latter type have been more frequently reviewed.

California appears to stand alone in its insistence that a customer who buys an airplane out of the stock of a dealer must carry out a “title search” for recorded “floor plan” liens.

This Court prefers to follow the rule announced in all other jurisdictions that the rights of a purchaser from a dealer in ordinary course of business are superior to the holder of a lien upon a moving stock of planes in the hands of a dealer. There are a number of reasons why this decision is preferable.

1. The Uniform Commercial Code has brought uniformity and order to the field of commercial law. To graft a new class of exceptions upon the existing uniform law would reverse the wholesome intent and result of the law.

2. It is not reasonable to assume that Congress intended any such result where not clearly stated.

3. The proliferation of aircraft dealerships and aircraft purchases would be seriously hampered if the public were not allowed to trust dealers selling in ordinary course of business.

4. It is inequitable and unjust to allow a mortgagee to hold “secret liens” on chattels while authorizing the chattels to be exhibited for sale by a dealer to the deception and loss of the purchasing public.

5. Lienholders may protect themselves (if they desire) by impounding the mortgaged planes in locked surroundings inconsistent with the free-sale situation of a stock of merchandise.

For the reasons and under the authority stated, the decree of the Chancellor is reversed, the plaintiff’s suit against Red Baron Flying Club, Inc., is dismissed, and all costs, including costs of this appeal, are taxed against the plaintiff.

Reversed and Dismissed.

SHRIVER, P. J., concurs.

DROWOTA, J., dissents.

DROWOTA, Judge,

dissenting.

I respectfully dissent from the conclusion reached in the majority opinion that the purchaser of an aircraft who qualifies as a “buyer in ordinary course of business under T.C.A. § 47-9-307 is protected by that statute from the claim of one holding a security interest recorded under 49 U.S.C. § 1403 prior to the sale. While the issue is obviously not free from doubt and while the force of many of the policy considerations espoused by the majority in favor of the U.C.C. rule cannot be gainsaid, I believe that Congress intended in § 1403 to set up a rule of priority that controls the instant situation, and that we should follow Dowell v. Beech Acceptance Corp., Inc., 3 Cal.3d 544, 91 Cal.Rptr. 1, 476 P.2d 401 (1970).

The Court in Dowell furnishes a reasoned explanation of its conclusion that 49 U.S.C. § 1401 et seq. pre-empt state priority rules and render the rights of the holder of a security interest recorded under § 1403 pri- or to the sale of an aircraft superior to those of one who buys the aircraft in the “ordinary course of business” within the meaning of U.C.C. § 9-307. In addition, a reading of the federal provisions themselves seems to me to require this result. Section 1403(a) sets out the types of interests recordable under the statute, and its language encompasses the security interest involved in the instant case. Section 1403(c) provides that no instrument recordable under the statute shall be “valid” except against “the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof” until it is recorded as provided in the statute. The effect of proper recording is stated by § 1403(d) to be as follows:

(d) Each conveyance or other instrument recorded by means of or under the system provided for in subsection (a) or (b) of this section shall from the time of its filing for recordation be valid as to all persons without further or other recordation . . . . (Emphasis added.)

That “valid” does not refer to the inherent validity of the recorded instrument itself is shown by the express commitment of that issue to state law in § 1406. The most logical explanation of § 1403(d), then, is that recording an instrument makes it “valid as to all persons” in the sense that its holder acquires rights superior to those acquired by subsequent persons such as purchasers.

The priority conferred by recording under § 1403 is very similar to that given recorded deeds of real property under the theory of constructive notice. The similarity is brought out by a description of the effect of § 1403 recording in the legislative history of the 1964 amendment to § 1401 et seq. It is there stated that, when an instrument has been properly recorded under the statute,

. all persons are deemed to have notice of its existence and its effect on title to the property covered thereby. Consequently, to determine whether there are any encumbrances on the aircraft, it is only necessary to consult the central file.

1964 U.S.Code Cong. & Admin.News, pp. 2319, 2320. In my view, this strengthens the conclusion that the rights of one who has recorded a security interest under § 1403 are superior to those of a subsequent purchaser of the encumbered aircraft.

Much of the policy in favor of protecting one who purchases in the ordinary course of business is sound, and has been widely accepted by state courts and by state legislatures adopting the U.C.C. Nevertheless, 49 U.S.C. § 1403 evidences Congress’s intent to reverse this rule in the case of security interests in aircraft which are recordable under the statute. Congress has chosen to give priority to the secured party rather than the buyer in such cases by applying its own uniform rule, a rule not subject to change by the legislatures of the several states. This uniform federal rule simply removes the priority question from determination under the U.C.C. when certain aircraft are involved, rather than “grafting exceptions” onto the Code as the majority suggest. The principle of federal supremacy, recognized in T.C.A. § 47-9-104, requires that this federal priority rule replace conflicting state rules of priority with regard to aircraft.

Further, the buyer’s burden of checking the federal record in such cases is a light one. This is especially so when it is compared to the steps a secured party would have to take, such as locking up the aircraft, to protect himself under the majority’s approach. Far from being “secret,” any interest recorded under § 1403 is readily available for anyone to see. Finally, it is again pointed out that the similar system of “constructive notice” in real property recording, under which a subsequent purchaser would not take free of previously recorded instruments in his chain of title, has worked reasonably well and is not generally considered to be unfair.

In sum, I find in 49 U.S.C. § 1401 et seq. an intent to prefer the rights of a secured party such as plaintiff over those of a buyer in the ordinary course of business such as defendant in the circumstances of the instant case. The Dowell Court was correct in saying that

[t]he federal policy to foster recordation and to protect recorded interests is eviscerated by a rule which relies on state laws to protect the buyer in the ordinary course of business even though he fails to undertake a simple title search which would have readily revealed all encumbrances.

91 Cal.Rptr. at 6, 476 P.2d at 406. We should not frustrate the federal purpose of encouraging recording of interests in aircraft and disregard the intent of Congress by reading state laws of priority such as U.C.C. § 9-307 into the federal scheme.


source: Caselaw Access Project

author: ODOM, Judge. ROBERTS, Judge,

license: Public Domain

text:
    Robert CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 53586.
    Court of Criminal Appeals of Texas, En Banc.
    July 19, 1978.
    State’s Motion for Rehearing En Banc Denied Oct. 11, 1978.
    Ray Stevens, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and William Tyler Moore, Jr., Asst. Dist. Attys., Bryan, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the jury at nine years.

Appellant contends the trial court erroneously refused to charge the jury on the lesser included offense of theft. The issue was preserved by proper objection and the court’s ruling. The State and appellant agree that the victim testified to facts showing aggravated robbery and that appellant testified to facts showing theft. The issue upon which this appeal turns is whether theft is a lesser included offense of aggravated robbery in this ease.

Article 37.09(1), V.A.C.C.P., provides:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; . . . ”

In applying this provision in Hazel v. State, Tex.Cr.App., 534 S.W.2d 698, the Court wrote:

“. . . the proof that appellant’s pistol was on the floorboard of the automobile established both that he carried it ‘on or about his person’ and that he ‘possessed’ it. Since the two are provable by the same facts, the provisions of Article 37.09, Vernon’s Ann.C.C.P., are satisfied.
“The same reasoning applies to the last remaining distinction between the two offenses. The offense charged, under V.T.C.A. Penal Code, Sec. 46.05, involved possession of a ‘firearm, namely a pistol,’ while V.T.C.A. Penal Code, Sec. 46.02, speaks of possession of ‘a handgun, illegal knife, or club.’ The definition of ‘handgun’ in V.T.C.A. Penal Code, Sec. 46.01, is ‘any firearm that is designed, made, or adapted to be fired with one hand.’ (Emphasis Supplied) Again, it is evident that the lesser offense and the offense charged are capable of proof by the same fact that appellant had in his automobile a .38 caliber revolver.” (Emphasis added.)

In Hazel v. State, supra, the defendant’s conviction for the lesser included offense was held proper on the basis of the above quoted analysis of whether Art. 37.09, supra, applied. That same analysis which upheld the conviction in Hazel, applied to the case at bar, requires reversal.

The State in its brief confuses the statutory elements of the definition of an offense with the evidentiary facts required to prove the offense charged. An indictment must charge acts constituting an offense. The facts here charged included the statutory element “in the course of committing theft.” Although under its statutory definition this element may be proven by one of several alternative means, not all of which require proof of a completed theft, the offense charged here, as shown by the State’s evidence, did rest on proof of a completed theft. The State’s version of the events and appellant’s version differed on only one material point: whether the theft was accompanied by acts constituting aggravated robbery. Appellant testified only a theft was committed; the State also relies on proof of the theft, and such additional facts as raise the crime to aggravated robbery. The theft was without question proven within the facts relied on by the State to make its case of aggravated robbery. Theft was a lesser included offense of aggravated robbery on the facts here.

The issue is not whether the primary offense is capable of proof on some theory that would not show theft. The issue is whether the State’s case as presented to prove the offense charged included proof of theft. The record shows theft was included in the proof of the State’s case, and therefore appellant was entitled, on the basis of his testimony, to submission of the lesser included offense of theft. The trial court’s adverse ruling on his objection to the charge was reversible error.

The judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.

ROBERTS, Judge,

dissenting.

I dissent from the majority’s conclusion that theft is a lesser included offense of aggravated robbery under Article 37.09(1), Vernon’s Ann.C.C.P. The majority fails to logically analyze the problem. I shall endeavor to explain, in a logical fashion, why the statutes dictate that the appellant’s contention is without merit.

The evidence reflects that on April 30, 1975, Hilaria Gonzales left the Value King Supermarket with two bags of groceries. As she approached her car, the appellant came up to her and asked her if he could help her. She replied, “No, sir. Thank you so much.” The appellant repeated his request and then pointed a pistol at Gonzales. The appellant told Gonzales to “shut up” and to give him her purse. The appellant repeated his demand and then fired a shot at Gonzales. The shot missed Gonzales, and the appellant then grabbed Gonzales’ purse. The appellant wrested the purse away from Gonzales and began to run away.

The appellant was pursued by Gonzales. Gonzales’ screams for help attracted the attention of Charles Radcliff. Radcliff chased the appellant and ultimately captured the appellant. A gun was found on the sidewalk near where Radcliff caught the appellant.

The appellant took the stand in his own behalf and admitted stealing Gonzales’ purse. However, he denied that he had used a gun in the commission of the offense, that he had ever seen the gun he allegedly used during the robbery, or that he threatened Gonzales.

The appellant contends that the trial judge erred by refusing to charge the jury on the issue of theft, as requested by the appellant. The appellant asserts that theft is a lesser included offense of aggravated robbery under Article 37.09(1), (2) and (3), Vernon’s Ann.C.C.P., and that the trial judge was obligated to charge the jury on the issue of theft as there was defensive evidence raising the issue.

Article 37.09(1), (2) and (3), Vernon’s Ann.C.C.P. provides that:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

The appellant was charged with aggravated robbery under V.T.C.A., Penal Code, Sections 29.02(a)(2) and 29.03(a)(2). V.T. C.A., Penal Code, Sections 29.01-.03 provide:

Sec. 29.01: “In this chapter:
“(1) ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.
“(2) ‘Property means:
(A) tangible or intangible personal property including anything severed from land; or
(B) a document, including money, that represents or embodies anything of value.”
Sec. 29.02:
“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”
Sec. 29.03:
“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon.
“(b) An offense under this section is a felony of the first degree.”

Thus, it is obvious that aggravated robbery can be committed in one of four ways where, in each instance, the accused, while in the course of committing theft and with intent to obtain or maintain control of property, (1) intentionally, knowingly, or recklessly causes bodily injury to another and the bodily injury is serious [Sec. 29.02(a)(1) and Sec. 29.03(a)(1)]; (2) intentionally, knowingly, or recklessly causes bodily injury to another and a deadly weapon is used or exhibited by the accused [Sec. 29.02(a)(1) and Sec. 29.03(a)(2)]; (3) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and the accused causes serious bodily injury to another [Sec. 29.02(a)(2) and Sec. 29.-03(a)(1)]; and (4) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and a deadly weapon is used or exhibited by the accused [Sec. 29.02(a)(2) and Sec. 29.03(a)(2)]. Compare Ex parte Cannon, 546 S.W.2d 266, 271-274 (Tex.Cr.App.1976) (Opinion on State’s Motion for Rehearing).

The offense of theft was defined at the time of the offense by V.T.C.A., Penal Code, Section 31.03, as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:
(1) he obtains the property unlawfully; or
(2) he exercises control over the property, other than real property, unlawfully.
“(b) Obtaining or exercising control over property is unlawful if:
(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

Thus, the offense of theft could have been committed in one of four ways where, in each instance, the accused, with intent to deprive the owner of property (1) obtains the property without the owner’s effective consent [Sec. 31.03(a)(1) and Sec. 31.-03(b)(1)]; (2) obtains the property, which is stolen property, from another knowing it was stolen [Sec. 31.03(a)(1) and Sec. 31.-03(b)(2)]; (3) exercises control over property, other than real property, without the owner’s effective consent [Sec. 31.03(a)(2) and Sec. 31.03(b)(1)]; and (4) exercises control over property, other than real property, which is stolen property obtained by another, knowing it was stolen [Sec. 31.03(a)(2) and Sec. 31.03(b)(2)]. See Ex parte Cannon, supra. The appellant’s requested charge specified the first mode of theft stated above as the lesser included offense of aggravated robbery. Thus, the specific issue presented is whether the offense of theft as defined by Sec. 31.03(a)(1) and Sec. 31.-03(b)(1) is a lesser included offense of aggravated robbery as defined by Sec. 29.-02(a)(2) and Sec. 29.03(a)(2). This question can be resolved only by considering each of the three tests paid out by Article 37.09, Vernon’s Ann.C.C.P., relied upon by the appellant.

First, Article 37.09(1) provides that “[a]n offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” (Emphasis added). See Day v. State, 532 S.W.2d 302, 310 (Tex.Cr.App.1976) (Opinion on State’s Motion for Rehearing).

The elements of aggravated robbery, as defined by Sec. 29.02(a)(2) and Sec. 29.-03(a)(2) and alleged in the indictment, are as follows:

(1) A person
(2) while in the course of committing theft,
(3) with the intent to obtain and maintain control of property,
(4) intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death,
(5) by using and exhibiting a deadly weapon.

The elements of the theft which, according to the appellant, constituted a lesser included offense of the aggravated robbery charged in the indictment are as follows:

(1) A person
(2) with intent to deprive the owner of property,
(3) obtains the property
(4) without the owner’s effective consent.

An examination of the elements of the aggravated robbery charged and the theft which allegedly constituted the lesser included offense reveals that theft is not established by proof of the same or less than all of the facts required to prove the aggravated robbery charged in the indictment. Theft requires proof that the accused obtained the property and that it was obtained without the effective consent of the owner. Aggravated robbery, however, does not necessarily require proof of these elements. This conclusion stems from the requirement that the acts constituting the robbery must be committed during the course of committing theft and that the definition of “in the course of committing theft” . . means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” V.T.C.A., Penal Code, Sec. 29.01(1). Thus, an aggravated robbery can be proved without proof that a theft actually occurred. It logically follows that theft is not necessarily established by proof of the same or less than all the facts required to establish aggravated robbery since theft can require proof of more facts than those required to prove aggravated robbery. I therefore conclude that theft, as defined by Sec. 31.03(a)(1) and Sec. 31.03(b)(1), is not a lesser included offense of aggravated robbery, as defined by Sec. 29.02(a)(2) and Sec. 29.03(a)(2), under Article 37.09(1), Vernon’s Ann.C.C.P.

Second, Article 37.09(2) provides that “[a]n offense is a lesser included offense if it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establishes its commission.” Theft, as defined by Sec. 31.-03(a)(1) and Sec. 31.03(b)(1), requires that the accused obtain the victim’s property. Aggravated robbery, as defined by Sec. 29.-02(a)(2) and Sec. 29.03(a)(2), does not require that the accused obtain the victim’s property. Johnson v. State, 541 S.W.2d 185 (Tex.Cr.App.1975). Thus, although it is clear that aggravated robbery involves a more serious risk of injury .to the victim than theft, it is equally clear that theft involves a more serious risk of injury to the victim’s property than aggravated robbery. Therefore, theft, as defined by Sec. 31.-03(a)(1) and Sec. 31.03(b)(1), is not a lesser included offense of aggravated robbery, as defined by Sec. 29.02(a)(2) and Sec. 29.-03(a)(2), under Article 37.09(2).

Third, Article 37.09(3) provides that “[a]n offense is a lesser included offense if it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.” (Emphasis added). The differences between aggravated robbery and theft referred to above in connection with Article 37.09(1) and (2) demonstrate that any difference between the culpable mental state of theft and the culpable mental state of aggravated robbery is not the only difference between theft and aggravated robbery. Therefore, theft, as defined by Sec. 31.-03(a)(1) and Sec. 31.03(b)(1), is not a lesser included offense of aggravated robbery, as defined by Sec. 29.02(a)(2) and See. 29.-03(a)(2), under Article 37.09(3).

I therefore conclude that theft, as defined by Sec. 31.03(a)(1) and Sec. 31.-03(b)(1), is not a lesser included offense of aggravated robbery, as defined by Sec. 29.-02(a)(2) and Sec. 29.03(a)(2), under Article 37.09(1), (2) or (3). I would overrule the appellant’s first contention.

On the basis of the foregoing, I dissent from the majority opinion. The judgment should be affirmed.

PHILLIPS and W. C. DAVIS, JJ., join in this dissent.

      . The State’s admission that the appellant’s testimony was sufficient to raise the issue is supported by the record. See Sargent v. State, 518 S.W.2d 807 (Tex.Cr.App.1975).

      . The appellant does not rely upon Article 37.-09(4) Vernon’s Ann.C.C.P., which provides that an offense is a lesser included offense if “it consists of an attempt to commit the offense charged or an otherwise included offense.” Since the appellant does not rely upon Article 37.09(4), Vernon’s Ann.C.C.P., I have not addressed the issue of whether theft, as defined by Sec. 31.03(a)(1) and Sec. 31.03(b)(1) is a lesser included offense of aggravated robbery as defined by Sec. 29.02(a)(2) and Sec. 29.-03(a)(2) pursuant to Article 37.09(4), Vernon’s Ann.C.C.P.

      . The majority opinion states that “[t]he issue is not whether the primary offense is capable of proof of some theory that would not show theft. The issue is whether the State’s case as presented to prove the offense charged included proof of theft.” (Emphasis added).

        The foregoing statement by the majority reveals that the majority has ignored the plain— indeed clear — wording of Article 37.09(1), Vernon’s Ann.C.C.P., that an offense is a lesser included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” (Emphasis added). Thus, the majority, by judicial legislation, is eliminating the word “required” from Article 37.09(1) so as to interject its own predilection that theft should be a lesser included offense of aggravated robbery. While this may be a commendable result, I cannot condone the majority’s method of achieving it. Intellectual honesty dictates the approach I have undertaken, and were this Court to interject their predilections into its opinions, we would quickly usurp the Legislature’s function.


author: ROBERTS, Judge: VOLLERS, Judge,

text:
    Gary Dale WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 54163.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.
    Kerry P. Fitzgerald, Dallas, Clifton L. Holmes, Kilgore, for appellant.
    Odis R. Hill, Dist. Atty. and Alvin G. Khoury, Asst. Dist. Atty., Longview, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge:

This is an attempted appeal from a conviction for aggravated assault, enhanced by one prior felony conviction. V.T.C.A., Penal Code, Section 12.42(a). We dismiss the appeal.

On June 17, 1976, the appellant was tried by a jury which returned a verdict of guilty. On June 18, 1976, after the appellant pleaded true, to the enhancement portion of the indictment, the jury assessed the appellant’s punishment at six years’ confinement in the Texas Department of Corrections. On June 28, 1976, the trial judge sentenced the appellant and notice of appeal was given.

Article 42.03(1), Vernon’s Ann.C.C.P., states in part that:

“Sec. 1. If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced ... at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.” (Emphasis added)

Article 40.05, Vernon’s Ann.C.C.P., states in part that:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury . .”

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

In Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975), we stated that:

“Within the meaning of these statutes, an adjudication of guilt does not amount to a ‘conviction.’ A conviction for the purposes of these statutes is an adjudication of guilt plus an assessment of punishment. The reason is that a defendant can make no intelligent decision as to whether to file a motion for new trial or motion in arrest of judgment until he knows the punishment that he faces. Hence, the ten-day waiting period following conviction before which sentence may not be pronounced, absent a waiver by the defendant, commences to run when punishment is assessed subsequent to a finding of guilt.”

In the present case, a verdict of guilt was returned by the jury on June 17,1976. The judgment reflects that the jury assessed punishment on June 17, 1976. However, the transcription of the court reporter’s notes of the penalty stage of the trial clearly reflect that the jury did not assess the appellant’s punishment until June 18,1976. Thus, since a “conviction” for the purposes of the foregoing is an adjudication of guilt plus an assessment of punishment, the appellant was not convicted until June 18, 1976. On June 28,1976, the tenth day after the appellant’s conviction, the trial judge pronounced the appellant’s sentence. However, the record does not reveal that the appellant affirmatively waived his right to file a motion for new trial or motion in arrest of judgment during the remaining portion of June 28, 1976. Therefore, the imposition of sentence on June 28, 1976, was one day premature and we are without jurisdiction to entertain this appeal. Faurie v. State, supra.

Sentence may now be pronounced and the appellant may give notice of appeal. If notice of appeal is given, proceedings may be had in the trial court pursuant to Article 40.09, Vernon’s Ann.C.C.P.

The appeal is dismissed.

VOLLERS, Judge,

dissenting.

I dissent to the dismissal of this appeal. I quite agree that the sentence was untimely pronounced upon the heels of assessment of punishment. I cannot agree that because the sentence was pronounced too soon the appeal must be dismissed. Article 40.-05, V.A.C.C.P. gives any person convicted of a crime ten days in which to file a motion for new trial or motion in arrest of judgment. The pronouncement of sentence does not deprive the convicted party of this right. Article 42.03, V.A.C.G.P. provides for the pronouncement of sentence in the presence of the defendant at any time after the expiration of time allowed for making the motion for new trial or motion in arrest of judgment. The fact that the sentence is pronounced untimely may be a grounds for setting it aside upon objection by appellant, but does not invalidate the sentence.

The reliance by the majority in this case upon Faurie v. State, 528 S.W.2d 263 is correct in its interpretation of this case, but this case should be reexamined. The instant case presents the perfect example to show that the rule announced in Faurie is unsound.

In the instant case the appellant makes no suggestion that he wanted to file a motion for new trial after the assessment of punishment or that he was denied the opportunity to file a motion for new trial or motion in arrest of judgment at any time. We should only set aside a sentence which is untimely pronounced where the appellant objects to such a sentence and attempts to file or is denied the right to file a motion for new trial or motion in arrest of judgment as provided by law.

This record quite clearly reflects that the right to file a motion for new trial or motion in arrest of judgment after assessment of punishment was waived by inaction by the appellant in this cause. We have consistently held that there is a waiver of constitutional rights by the failure to urge them. It is inconceivable to me that a constitutional right can be waived by failure to urge it but a statutory right can not be.

I dissent.

      . The judgment should be corrected to reflect that the jury assessed the appellant’s punishment on June 18, 1976.


author: PHILLIPS, Judge.

text:
    Calvin Allen SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 54727.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.
    William 0. Olsen, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and William E. Taylor, III, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for attempted burglary of a habitation. Punishment was assessed against appellant, as a habitual offender, at life imprisonment.

Appellant’s first ground of error contends that the trial court reversibly erred in failing to grant his motion to quash the indictment for its failure to allege that appellant had the “specific intent” to commit burglary when he committed the acts alleged in the indictment.

The indictment alleged that the appellant did:

“unlawfully commit an offense hereafter styled the primary offense in that said Defendant, with intent to commit theft, did attempt to enter a habitation owned by Ernest Russell, hereinafter styled Complainant, by prying on door of said habitation with a tire tool, without the effective consent of the Complainant.”

Appellant contends in his motion to quash that the failure to allege that appellant acted with the “specific intent” to commit burglary renders the indictment “fatally defective in that it does not charge in plain and concise language the essential elements of the offense attempted to be therein charged so as to enable the defendant to prepare his defense.” At the hearing on appellant’s motion to quash, appellant’s counsel urged that the law required the allegation of two intents.

We conclude that this Court’s discussion of this same contention in terms of “fundamental error” in Dovalina v. State, 564 S.W.2d 378, applies with equal force in the instant cause, notwithstanding appellant’s filing of a motion to quash. As reflected in Dovalina, and the authorities cited therein, “attempt” means “intent” and the word “specific” is not essential to an indictment which alleges an offense requiring a “specific intent” for its mens rea. Further, although the reasoning of Williams v. State, 544 S.W.2d 428 (Tex.Cr.App.), is not directly in point, the same result should follow. The appellant’s motion to quash can only conceivably be entertained pursuant to Article 27.09, Sec. 2, V.A.C.C.P., and Article 21.02, Sec. 7, V.A.C.C.P. A review of the indictment clearly sets forth that the offense of attempted burglary was set forth in “plain and intelligible words.”

We therefore hold that the instant indictment is neither fundamentally defective nor subject to a motion to quash.

Appellant’s second ground of error complains that the trial court reversibly erred in denying the appellant’s motion for a pretrial hearing on the admissibility of appellant’s prior convictions for the purposes of impeachment. The appellant relies on Madeley v. State, 488 S.W.2d 416 (Tex. Cr.App.). Such reliance is misplaced since the conviction considered void in that case was shown to be void by the undisputed evidence adduced from the defendant that at the time of the prior conviction he was without counsel, was indigent and did not waive counsel. Thus, the prior conviction was inadmissible under the authority of Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Appellant’s reliance on Madeley and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), is misplaced since at no time did appellant allege that any of the convictions found in the enhancement paragraph of his indictment were constitutionally void nor did the appellant testify to any facts which would establish that such convictions were void and therefore inadmissible. It is noted that appellant did testify that he had chosen not to testify at the trial in chief since he feared impeachment from his prior convictions. Although he had the opportunity to contest the constitutional validity of the prior convictions, he did not do so.

We therefore hold that the trial court did not err in refusing to conduct a pretrial hearing on the admissibility of the prior convictions absent any contention on the part of the appellant that the prior convictions were constitutionally void.

Appellant’s second ground of error is overruled.

Finally, appellant complains that the trial court erred in overruling his motion to dismiss the enhancement allegations as well as his request that the State be instructed not to mention the enhancement allegations to the jury until a hearing was held outside their presence to determine their admissibility under the constitutional doctrines of U.S. v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and Burgett v. Texas, supra.

At the outset we note that appellant never contested the constitutional validity of the prior convictions. Appellant’s only objection, on constitutional grounds, to the admissibility of the “pen packets” was “they would be in violation of the Fifth, First, Sixth, and Fourteenth Amendments to the United States Constitution.” Appellant never designated any particular grounds upon which these pen packets violated the constitutional provisions cited. Therefore, nothing is preserved for review. Cowan v. State, 562 S.W.2d 236 (Tex.Cr.App.); cf. Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.).

There being no reversible error, the judgment of conviction is affirmed.


text:
    Willie Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55041.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.

      Larry M. Cunningham, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Fred C. McDaniel, Ron Poole and Samuel G. Longo-ria, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of unlawfully carrying a handgun. V.T.C.A., Penal Code, Sec. 46.02. Punishment was assessed at a $300.00 fine and six months in the county jail, probated.

The evidence at trial revealed that on June 9, 1976, the appellant was found in possession of a .22 caliber pistol. Officer Don Norman testified that on June 9, at 12:05 a. m., he and his partner, Officer Ron Hill, noticed the appellant’s red and white pickup truck. The officer began following the truck and, after checking with the dispatcher, learned the vehicle matched the description and license plate number of a suspected vehicle used in a burglary. The appellant did not immediately stop when the officers flashed their red lights but stopped when they turned on their siren. After the officers stopped the vehicle, the appellant was ordered out of the truck. The officers frisked the appellant and found a .22 caliber pistol, commonly referred to as a Saturday night special. When asked why he was carrying the pistol, the appellant replied that he was in the process of moving. The appellant was later transported to the police station in another patrol unit. Officer Ron Hill corroborated this testimony.

The testimony of the two police officers was not contested by the defense. The appellant testified in his own behalf that he had been in possession of the gun when stopped by the police officers. The appellant stated that he was moving from an address on Polk Street to an apartment on Wheatland Road. At that time, Tommy Crawford had been staying with the appellant in the Polk Street apartment, and the appellant helped move Crawford’s stereo to Crawford’s house. When the appellant arrived at the house, he helped Crawford load the stereo in the trunk of Crawford’s car. He noticed the pistol in the stereo and placed it in the waistband of his pants. He then left to get another load of furniture when he was stopped by the police on the suspected burglary. A later investigation revealed that there was no burglary, but a burglary had been reported of appellant’s own apartment on Polk Street.

Betty Johnson, the appellant’s wife, testified that the appellant had been moving furniture from Polk Street to her apartment on Wheatland Road. The appellant moved some bedroom furniture and left at 10:00 or 10:30 to get more furniture. She did not see him carrying a gun at that time.

Raymond Johnson, the appellant’s brother, testified that on the evening of June 8, 1976, he helped the appellant load a stereo and some plants on the appellant’s truck. At that time, Johnson noticed a .22 caliber pistol lying on the stereo. The appellant left at approximately 10:10. The Wheat-land Road apartment was 2V2 miles from the Polk Street address.

In his second ground of error, appellant contends that the jury verdict is contrary to the law and the evidence presented in that no evidence was presented to controvert the defense replied on by the appellant. The State established a prima facie case when it demonstrated the appellant was found carrying a handgun. The appellant then introduced evidence tending to show he was a “person traveling” and therefore his possession of a handgun was not unlawful. The appellant now contends, in essence, that once he established the defense, the State was then required to introduce evidence controverting such proof.

Initially, we must decide if the carrying of a handgun from an old residence to a new residence or from one home to another constitutes a defense to prosecution under V.T.C.A., Penal Code, Sec. 46.02. V.T.C.A., Penal Code, Sec. 46.03 provides, in part:

“The provisions of Section 46.02 of this code do not apply to a person: . (3) traveling; . . . ”

This provision of our law is derived unchanged from prior law, Article 484, V.A. P.C. (1871), which provided in part:

“The preceding article [prohibiting the unlawful carrying of a pistol] shall not apply to a person . . . traveling..."

Under our prior law, Article 484, it was a defense to a prosecution for unlawfully carrying a pistol that a person was transporting a pistol from his temporary residence to his permanent residence, Campbell v. State, 28 Tex.App. 44, 11 S.W. 832, or that he was carrying a pistol from his place of business to his home. Bowles v. State, 66 Tex.Cr.R. 550, 147 S.W. 869; Taylor v. State, 89 Tex.Cr.R. 112, 229 S.W. 552. This defense applied as long as such person did not carry the pistol idly, or merely for the sake of carrying it, or habitually, or for some unlawful purpose. Deuschle v. State, 109 Tex.Cr.R. 355, 4 S.W.2d 559. Since this interpretation of Article 484 was not changed by the Legislature in enacting Sec. 46.03(3), we will presume that these cases are consonant with and applicable to Sec. 46.03(3). See Roy v. State, Tex.Cr.App., 552 S.W.2d 827. We therefore hold a person carrying a handgun from an old residence to a new residence will constitute a defense to prosecution under Sec. 46.02; but such person will not be entitled to carry such weapon idly, or for the sake of carrying it, or habitually, or for some unlawful purpose.

We now turn to the appellant’s contention that once he established his defense of a “person traveling,” the evidence was then insufficient to support the conviction because the State failed to introduce evidence controverting his defensive proof. The appellant relies on Dominguez v. State, 141 Tex.Cr.R. 67, 147 S.W.2d 480, a prosecution for unlawfully carrying a pistol. In Dominguez, the trial court declined to give special requested charges on the “person traveling” exception. This Court reversed, not because the State failed to controvert the defensive evidence, but because the charge which was given the jury was improper. We believe appellant’s reliance on Dominguez is misplaced.

The jury, or trial judge in a trial before the court, is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by State or defense witnesses. Having been properly charged in the instant case, the jury could properly disbelieve the appellant’s defensive evidence. The State was not required to introduce affirmative controverting evidence to rebut the defensive theory. In Porter v. State, Tex.Cr.App., 388 S.W.2d 422, a trial before the court, this Court held:

“Whether this set of facts, if believed, would comprise an exception to the prohibition of Article 484, Vernon’s Ann.P.C., is immaterial because the trial judge is not required to believe the defendant’s testimony as to his reason for carrying the pistol, even if it is not controverted. [Citations omitted]”

We therefore hold the State was not required to rebut the defensive issue raised by introducing positive controverting evidence and we find the evidence sufficient to support the conviction. Oliver v. State, Tex.Cr.App., 455 S.W.2d 291; Chatman v. State, 513 S.W.2d 854. Appellant’s contention is overruled.

In his Ground of Error 3, without citing authority for his argument, the appellant complains that the trial court failed to submit appellant’s special requested charge on the description of a firearm. The appellant requested the trial court to charge the jury pursuant to V.T.C.A., Penal Code, Sec. 46.-01(3), which request was denied.

The appellant was charged in the information with unlawfully carrying a handgun. V.T.C.A., Penal Code, Sec. 46.02(a). In the charge, the trial court instructed the jury as to the definition of a handgun under V.T.C.A., Penal Code, Sec. 46.01(5). Appellant contends that since a handgun is defined as “any firearm that is designed, made, or adapted to be fired with one hand” (emphasis added), the trial court should have given an instruction as to the definition of a firearm under Sec. 46.01(3).

It is well established that a correct instruction of the law relating to the offense charged must be given to the jury. Article 36.14, V.A.C.C.P. Lindley v. State, 8 Tex.App. 445; Smith v. State, Tex.Cr.App., 541 S.W.2d 831. In the instant case, the appellant was charged with carrying a handgun and a correct definition of such term was given. At no time during the trial did the appellant dispute the fact that the .22 caliber revolver found in his possession was a handgun or a firearm. Under such facts, the appellant could not have been prejudiced by the failure to give the requested charge. We find the trial court correctly charged the jury as to the law applicable to this case and did not err in failing to give a definition of a firearm. Lapp v. State, Tex.Cr.App., 519 S.W.2d 443; Brown v. State, 135 Tex.Cr.R. 394, 120 S.W.2d 1057; cf. Burleson v. State, 131 Tex.Cr.R. 76, 96 S.W.2d 785. Appellant’s contention is overruled.

Appellant next contends that the evidence is insufficient to sustain the conviction since the evidence failed to establish the weapon carried by appellant was a firearm. As we have previously noted, proof will be sufficient to sustain a conviction if it is shown the appellant unlawfully carried a handgun. Further, in a prosecution for unlawfully carrying a handgun, there need be no proof that the handgun was capable of being fired or possessed all the component parts of a handgun unless such issue was raised by the evidence. Tolbert v. State, 157 Tex.Cr.R. 101, 246 S.W.2d 896. In the instant case, the appellant never raised such issue. Officer Don Norman testified as follows:

“Q Was the defendant carrying State’s Exhibit 1 on or about his person?
A He was carrying it on his person.
Q Where was he carrying that, sir?
A In the waistband on the left side, right here, sir.
Q And is State’s Exhibit 1 a handgun?
A Yes, sir, it is. That is what I would call a Saturday night special.”

We find the evidence adduced at trial sufficient to sustain the conviction. Ruiz v. State, Tex.Cr.App., 368 S.W.2d 609; Sims v. State, Tex.Cr.App., 546 S.W.2d 296. Appellant’s contention is overruled.

The judgment is affirmed.

      . V.T.C.A., Penal Code, Sec. 46.02(a) provides:
      “(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.”

      . V.T.C.A., Penal Code, Sec. 2.03(e) provides:
      “(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and eviden-tiary consequences of a defense.”

      . The Practice Commentary to V.T.C.A., Penal Code, Sec. 46.03(3) notes:
      “Subdivision (3) is derived directly from prior law without any clarification, and the traveler’s exemption was one of the most enigmatic provisions of the prior weapons offense. The courts never defined ‘traveling’ but in each case considered distance, time, and mode of travel. . . . ”

      . It is well settled that once evidence is admitted supporting a defense, such issue shall be submitted to the jury and, when submitted, the trial court shall charge that a reasonable doubt on the issue requires the defendant be acquitted. V.T.C.A., Penal Code, Sec. 2.03(c) and (d). Failure to give a proper charge on a defensive issue under Sec. 46.03(3) when correctly raised and requested presents reversible error. Garcia v. State, Tex.Cr.App., 528 S.W.2d 604; Dominguez v. State, supra; Davis v. State, 135 Tex.Cr.R. 659, 122 S.W.2d 635. In the instant case, the trial court properly charged the jury as to the appellant’s defense under Sec. 46.-03(3). Cf. Brown v. State, 97 Tex.Cr.R. 402, 261 S.W. 773.

      . Article 36.14, V.A.C.C.P., provides, in part:
      “. .in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; . . ." (Emphasis added)

      . We note that our opinion finds support in Morrison and Blackwell, New Texas Penal Code Forms, Sec. 109.01, Page 553. In that suggested charge for unlawfully carrying a handgun, the charge does not provide a definition for a firearm. In a footnote to that form, the following appears:
      “In defining terms only that portion of the statutory definition that is applicable to the case on trial should be set out in the charge.”


author: ODOM, Judge.

text:
    Russell L. STEPHENSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55443.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.

      William H. Sheehan (on appeal only), Dumas, for appellant.
    Barry E. Blackwell, Dist. Atty., Dumas, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape; punishment was assessed at twenty five years.

In one ground of error appellant contends the trial court improperly denied his motion for new trial. The motion alleged receipt of other evidence by the jury during deliberations in violation of Article 40.03(7), V.A. C.C.P., which provides in relevant part:

“New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other:
“(7) Where the jury, after having retired to deliberate upon a case, has received other evidence; . . .”

In Pafford v. State, 138 Tex.Cr.R. 299, 135 S.W.2d 990, the Court wrote:

“It is apparent from the record as a whole that some member or members of the jury, while they were considering their verdict, related facts to their fellow jurors that were not in evidence before them. This was improper. Sec. 7 of Art. 753 [now 40.03] C.C.P., provides that where the jury, after having retired to deliberate upon a case, have received other testimony, a new trial shall be granted. This court has consistently held that where this is true, the court will not ordinarily speculate upon the question of injury, [citations omitted.] Testimony received by the jury, under the circumstances as disclosed by this record, is contrary to the constitutional provisions according to the defendant the right to be confronted by the witnesses against him. See Snow v. State, 91 Tex. Cr.R. 1, 237 S.W. 563.”

More recently in Rogers v. State, Tex.Cr.App., 551 S.W.2d 369, the Court wrote:

“It is the character of the evidence that controls the determination of this issue, and the Court will not speculate on the probable effects on the jury or the question of injury. . . . Unless there is a fact issue raised on whether the jury actually received the other evidence . the statute requires reversal if the evidence was adverse to the defendant. The statutory provision here applied was designed by the Legislature to guarantee the integrity of the fundamental right to trial by jury by restricting the jury’s consideration of evidence to that which is properly introduced during the trial.”

In the instant case the affidavit of the jury foreman was submitted to the trial court in support of appellant’s motion for new trial. That affidavit recites:

“During the deliberations of the jury on the guilt or innocence of Russell L. Stephenson of the charge, I heard several women jurors say that they knew the defense witnesses Bobbie Jones and Janie Hendrix and that they knew personally that Bobbie Jones and Janie Hendrix and the other principals did not have good reputations for being truthful.
“There were other discussions during the jury deliberations in which Mrs. Forrest Taylor and all other jurors said substantially that she knew the facts or some of the facts in the case personally and that they knew that Russell L. Stephenson was guilty beyond a reasonable doubt of the charge.”

The trial judge denied the motion for new trial on the basis of the affidavit alone without an evidentiary hearing. The State did not take issue with appellant on the matter (see Art. 40.06, V.A.C.C.P.) and filed no affidavits by other jurors.

The credibility of witnesses is for the jury to decide, and receipt of evidence touching on their credibility is within the scope of Art. 40.03(7), supra. Stone v. State, 116 Tex.Cr.R. 319, 31 S.W.2d 822. The nature of the other evidence received by the jury during deliberations was adverse to appellant within the terms of the statute. Absent a controverted fact issue on whether such evidence was received, the trial court should have granted the motion for new trial.

In its brief the State argues that the other evidence could not reasonably have influenced the verdict because of the strength of the State’s case. In his testimony appellant denied that the intercourse was without the prosecutrix’ consent. The two defense witnesses referred to in the affidavit testified at the guilt stage of the trial that the prosecutrix’ reputation in the community for truth and veracity and for morals and decency was bad. We conclude from the character of the other evidence received by the jury during deliberations that such evidence was adverse to appellant and requires a new trial. Rogers v. State, supra.

Lest we be misunderstood, however, we hasten to add that a new trial for receipt of other evidence is not required every time something is mentioned among the jurors that is not supported by the evidence. The two requirements for reversal under Art. 40.03(7), supra, are (1) that the evidence be detrimental to the accused and (2) that it be received by the jury. That it must be detrimental to the accused has been emphasized in many cases. See Rogers v. State, supra, and authorities cited there. That it must be received by the jury has frequently been examined as a disputed fact issue. See McCartney v. State, Tex.Cr.App., 542 S.W.2d 156, and cases cited there. The question of whether the jury has received other evidence, however, may also be a question of degree in some instances. Something said in Heredia v. State, 528 S.W.2d 847, with respect to jury misconduct under Art. 40.03(8), supra, may be applied to the question of whether other evidence was received under Art. 40.03(7):

“. . . the mere mention of the parole law would not be such misconduct as would require a new trial. Likewise, a discussion of the parole law, followed by instructions that it should not be discussed, coming from the court in response to a message from the jury or coming from a juror, after which it is not further discussed, would not be such misconduct as to require a new trial.” (Emphasis added.)

We likewise feel such a passing remark would not constitute a receipt of other evidence, and effective corrective action could remove the taint of such receipt during deliberations, similar to the corrective action of an instruction to disregard evidence improperly heard during trial. We make these comments to prevent an overly broad application of Art. 40.03(7) by the trial judges of the State when they apply this mandatory statute in hearing motions for new trial. In this case, however, other evidence detrimental to appellant was shown to have been received by the jury, and reversal is mandated.

The judgment is reversed and the cause remanded.


text:
    Roy STEARN, Appellant, v. The STATE of Texas, Appellee.
    No. 55791.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.
    Donald J. Driscoll (court appointed), Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Fred C. McDaniel, Gerald Banks and Richard W. Wilhelm, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a habitation wherein appellant asserts the evidence is insufficient to support the guilty verdict; that the trial court erred in denying a charge on circumstantial evidence on the question of intent; and, that documents attesting to a prior out of state conviction were improperly admitted as evidence for enhancement to support his punishment at life as an habitual.

On March 26, 1976, appellant was discovered in the kitchen of a private residence. Nothing had been disturbed beyond what was necessary to break in and appellant fled immediately upon being discovered. The first ground of error asserts that there was no showing of intent to steal and that such is necessary for the crime of burglary. V.T.C.A., Penal Code Sec. 30.02(a)(1).

It is well settled in this State that the question of the intent with which a person unlawfully enters a habitation is a fact question for the jury to be drawn from the surrounding circumstances. Hutchinson v. State, Tex.Cr.App., 481 S.W.2d 881; Henderson v. State, 94 Tex.Cr.R. 97, 250 S.W. 688. Furthermore, the jury’s finding of intent to steal will not be disturbed on appeal where there is no testimony to indicate that the entry was made with any other intent. Callahan v. State, Tex.Cr.App., 502 S.W.2d 3. No controverting testimony was offered in this case and this Court will not overturn the jury’s finding.

Appellant maintains that the trial court should have granted his request for an instruction on circumstantial evidence on the issue of intent. The question was dealt with in Bowles v. State, Tex.Cr.App., 550 S.W.2d 84, wherein the defendant was charged with a violation of V.T.C.A., Penal Code Sec. 21.11 in that he exposed his genitals to a child with intent to arouse or gratify sexual desire. Evidence of the act itself was clear and the only jury issue to be determined from an evaluation of the circumstances was the intent with which the act was done. Had the act not been done with the requisite culpable intent, it would not have been a violation of the statute, a circumstance similar to V.T.C.A., Penal Code Sec. 30.02 where the intent to steal is required to make an unlawful entry burglary. This Court stated that it was “well settled” that where intent is the only issue to be determined by circumstances a charge on circumstantial evidence is not required. A similar result was reached in Green v. State, Tex.Cr.App., 533 S.W.2d 769, where the offense was attempted burglary.

Given that intent was the only element of the offense in this case to be proven by circumstances, appellant was not entitled to a circumstantial evidence charge.

Grounds of error 3 and 4 maintain that records of a past conviction forwarded from California and used to justify enhancement under V.T.C.A., Penal Code Sec. 12.42 were improperly certified and failed to properly link appellant with the judgment handed down in California.

The California records were introduced pursuant to Art. 3731a, V.A.C.S., Section 4 of which provides in part:

“Such writing . . . may be evidenced by an official publication thereof or by a copy . . . attested by the officer having the legal custody of the record, or by his deputy. . . .” (Emphasis added.)

Appellant contends there is no proper attestation of the records here. Both appellant and the State cite Ashley v. State, Tex.Cr.App., 527 S.W.2d 302, in which the Court considered similar California records. Regarding the required attestation it was stated that the- record included, “a certification by Madelon Stuermann that the criminal record of appellant is in her custody, and that the attached document is a true and correct copy of the said original in her custody.” An examination of the record in Ashley reflects this recitation:

“I further certify that the copies of the commitment and fingerprints attached are true and correct copies of the originals in my custody, as required by law.”

In the instant case no such recitation appears. Instead, however, there is an accompanying letter from the California deputy custodian, and it states:

“In compliance with your request we are forwarding certified copies of our records authenticated by the Secretary of State, pertaining to the above named individual.”

Although the record in this case does not contain an attestation of the same formality as that in Ashley, and is not a model for future use, we conclude the quoted statement is sufficient to meet the requirements of Art. 3731a, Sec. 4, supra, that the copy be attested by the custodian or his deputy.

We also conclude the records were sufficiently identified to be those of appellant in that they were in the same packet and reflected appellant’s name and prison number. The third and fourth grounds of error are overruled.

Appellant’s pro se brief has been reviewed and the contentions therein are without merit.

The judgment is affirmed.


text:
    Michael Eugene HOLLOWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 55940.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.
    John Ellis, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Fred C. McDaniel, Bob Hinton and Kelly Loving, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a building; punishment, enhanced by the proof of one prior conviction, was assessed by the jury at 15 years.

In three grounds of error appellant challenges the sufficiency of the evidence to prove the prior conviction alleged for enhancement, the admission of fingerprint evidence, and prosecutorial argument at the punishment stage.

Appellant first argues the evidence does not show his prior conviction was for an offense “legally pending against him and that the said Court then and there had jurisdiction of said cause” as submitted in the jury instructions. No authorities are cited. The State points out that appellant testified and admitted the prior conviction, that the “pen packet” showing the prior conviction was introduced, and that no issue was raised at trial regarding the jurisdiction of the court hearing the prior cause. There having been no issue raised, the presumption of regularity from the judgment and sentence in the prior cause is that the court had jurisdiction of the cause. The ground of error is overruled.

Appellant next contends that due process was violated when the State was allowed to introduce evidence that his palm-print matched one lifted from a trophy at the scene of the burglary. He argues that the State did not disclose the existence of the print found at the scene despite his motion for discovery that was granted by the trial court. The motion that was granted under Article 39.14, V.A.C.C.P., required in part “the production [of] any papers, objects or real evidence, that is in the possession of the police or District Attorney’s office which may in any way be material to the guilt or innocence of this Defendant.” (Emphasis added.) The palmprint clearly was within the motion. It was real evidence and it was obtained by a Dallas police officer who participated in the investigation at the crime scene. The State’s contention that it was unaware of the existence of the print until the trial was in progress is untenable. First, just as defense counsel has an obligation to investigate the case before he goes to trial, the prosecutor has a duty to know what evidence is at his disposal. Furthermore, the motion granted by the trial court was directed to evidence in the possession of the police; the order granting the motion therefore placed a specific duty on the prosecutor in this case to ascertain what evidence within the terms of the granted motion was held by the police and to make such evidence available to the defense under the terms of the order.

We nevertheless find no reversible error. Appellant not only was arrested at the scene in the burglarized premises; he also testified and admitted his presence, while contending it was under innocent circumstances. We conclude any error was harmless. Furthermore, Terrell v. State, Tex.Cr.App., 521 S.W.2d 618, and Detmering v. State, Tex.Cr.App., 481 S.W.2d 863 are distinguishable in that motions for discovery there were improperly denied. The trial court here granted the motion but the State failed to comply with it. Although evidence willfully withheld from disclosure under a discovery order should be excluded from evidence, we hold its admission here was harmless. The ground of error is overruled.

In his final ground of error appellant complains the prosecutor referred to him in jury argument as an habitual criminal. The reference was at the punishment stage. Appellant had admitted at least three other convictions from the witness stand. We conclude the comment was a reasonable deduction from the evidence.

The judgment is affirmed.

VOLLERS, J., concurs in the result.


text:
    Mary POTTS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56676, 56677.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.

      Harry Louis Zimmermann, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds and Jan Potts, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

These are appeals from convictions for the offense of theft over $200.00. V.T.C.A., Penal Code, Section 31.03. The appellant waived a trial by jury and entered a plea of guilty in each case.

Appellant contends that the evidence is insufficient to support the conviction. Article 1.15, V.A.C.C.P., provides that where a jury is waived in a felony case, “it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.”

The State introduced into evidence appellant’s confessions without objection. Appellant took the stand and testified that the contents of the confessions were “substantially true and correct.” No other testimony was offered. Therefore, in order to determine the sufficiency of the evidence, we must look to the appellant’s confessions. The confessions do not state that the property was taken without the owner’s effective consent as was alleged in the indictment.

In Adam v. State, Tex.Cr.App., 490 S.W.2d 189, the defendant pled guilty to the court and executed a consent to stipulate the evidence. The consent to stipulation read, in pertinent part, as follows:

“Said defendant . . . agrees and stipulates that he, the said defendant, is the identical person named in the indictment in the above styled and numbered cause and that all the acts and allegations in said indictment . . . charging the offense of Sale of a Narcotic Drug to-wit: Heroin are true and correct..."

This Court wrote:

“This ‘catch-all’ stipulation is sufficient to constitute a judicial confession which will alone support a conviction.”

In Miles v. State, Tex.Cr.App., 486 S.W.2d 326, the defendant’s affidavit by which he agreed to the stipulation of testimony and which was admitted into evidence stated, “All the acts and allegations in said indictment charging the offense of Passing as. True a Forged Instrument are true and correct . . . .” It is evident, therefore, that an affirmation of the indictment as true and correct will constitute a judicial confession sufficient to support a judgment of conviction.

Should then a judicial confession that one committed an offense as charged in the indictment and an in-court affirmation of that judicial confession constitute compliance with the requirement of Article 1.15, V.A.C.C.P.? We believe it does, especially since there has been no allegation that the appellant was denied a copy of the indictment. In fact, the appellant here admitted before the bench that she understood what she was charged with, that she did not want to hear the charges read to her again, and that the judicial confessions introduced by the State were substantially true and correct. Having concluded the evidence to be sufficient for purposes of Article 1.15, supra, we overrule those contentions of appellant which in effect allege the evidence to be insufficient to sustain the judgment. See generally York v. State, Tex.Cr.App., 566 S.W.2d 936.

There being no reversible error, the judgment is affirmed.

      . Appellant’s confession in Cause No. F76-863-NJ reads:
      “I judicially confess that on the 18 day of December 1975, in Dallas County, Texas, with the intent to deprive the owner, Barney Topporoff, of property, namely, five pantsuits, I did intentionally and knowingly unlawfully exercise control over such property which had a value of at least $200.00 but less than $10,000.00, as charged in the indictment.”
      Appellant’s confession in Cause No. F15-12384 — MKJ reads:
      “I judicially confess that on the 1 day of November 1975, in Dallas County, Texas, with the intent to deprive the owner, Loretta Anderson, of property, namely, two pantsuits, I did intentionally and knowingly unlawfully exercise control over such property which had a value of at least $200.00 but less than $10,000.00, as charged in the indictment.”