author: ONION, Presiding Judge.

text:
    Joe DINN, Jr. v. The STATE of Texas, Appellee.
    No. 54939.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Donald B. Dailey, Jr., Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty., J. Grant Jones, Asst. Dist. Atty., Corpus Christi, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated assault, wherein the jury, having found that the appellant had been previously convicted of a felony as alleged in the indictment, assessed punishment at sixteen (16) years’ confinement in the Department of Corrections.

In three grounds of error appellant complains that the trial court erred in not having him examined by a psychiatrist on the issue of his competency to stand trial, by not holding an adequate hearing to determine such issue, and in ruling the evidence was insufficient to support such issue.

We are not here confronted with a pretrial motion to appoint a psychiatrist or the refusal to impanel a jury for a pre-trial determination of competency to stand trial. The matters here complained of arose during the trial on the merits.

In order to better understand appellant’s contentions, a brief summary of the facts is necessary. On July 21, 1975 the appellant about 5:30 p.m. went to the home of Jesus Davila, apparently his uncle. Davila was there with his wife, Josefa, his two children and his wife’s sister, Connie Rios. The appellant changed shirts, and when he started to leave he wanted Connie to go with him, but she refused. He then forced her toward the door and then stabbed her in the hip. She ran into the kitchen and out the back door. Josefa Davila fled the house. It was later shown she went to her mother’s house. The complaining witness, Jesus Davila, then asked the appellant to put the knife down, and the appellant stabbed Dav-ila in the arms and in the abdomen and ran out the front door. Bleeding, Davila took his two children to his mother-in-law’s house. The appellant appeared there, but the mother-in-law, Rufina Garcia, persuaded the appellant to give her the knife. He then fell on the floor saying, “Kill me, kill me. I just stabbed my Uncle Chooy.” He stayed about three minutes and left. The appellant was later arrested and taken to jail. Davila was taken to the Memorial Medical Center, where he stayed three days.

The defensive issue at the trial on the merits was insanity at the time of the commission. There was testimony bearing on that issue, as well as testimony that the appellant had been drinking beer for some time before the alleged offense and was drunk when later arrested.

Jesus Davila, the complaining witness, describing the appellant at the time of the offense, testified that the appellant “came at me like he was berserk . . . his “eyes looked like ... he was not in his right mind.” He described appellant’s conduct was “weird or hard to believe” and that the appellant acted like an “insane man.”

Davila’s wife, Josefa, testified appellant had acted like a “crazy person” and “needed treatment.” She testified appellant called her from the jail and told her that her husband had better not testify.

Rufina Garcia, Josefa’s mother, testified that when the appellant came to her house after the stabbings he acted like a “crazy man . . . out of his mind.” She based this on the fact he threw himself to the floor asking for someone to kill him. She related that he was a very kind, very good person to her, but when she saw him in jail he “looks very sad, like he’s sick or something.”

Luis Garcia, son of Rufina Garcia, testified he saw the appellant at his mother’s house after the stabbings and that he (appellant) did not act like a man with good sense. He related, “I think he lost his mind.” He added, “When Joe stabbed by brother-in-law, he lost his mind, you know.”

Connie Rios, the appellant’s girlfriend, when asked if the appellant acted crazy, replied, “I don’t know.” She related she, the appellant and her brother, Luis Garcia, had all been drinking beer at the Davila house, that the appellant left and upon his return the stabbings took place.

After the State rested its case, the defense called Esperanza Davila, grandmother • of the appellant, who thought he was insane, not right in his mind and was getting worse. She wanted him examined by a doctor. She related that there had been no prior difficulties between the appellant and Jesus Davila and explained that appellant was drunk on the date of the alleged offense. The record also reflects on direct examination:

“Q Do you think that Joe has control over himself?
“A Well, yes, but when he drinks, that’s all, he goes out of kilter then.”

Sylvia Aroya, mother of the appellant, testified the appellant was twenty-one years old and had not lived with her for a year and a half. She stated she had reason to believe he was not right in his mind and was getting worse. Although it was not established when the letters were written, she related she had received letters from the appellant threatening suicide, and she believed anyone who would do that had severe mental problems. She thought her son needed psychiatric treatment. At the close of the evidence at the guilt stage of the trial, appellant conferred with his counsel and agreed that the jury need not be sequestered.

The issue of insanity at the time of the commission of the alleged offense was submitted to and rejected by the jury at the guilt stage of the trial.

At the penalty stage of the trial, appellant conferred with counsel about his plea to the enhanced portion of the indictment and about whether to testify. He did testify and his testimony was lucid.

At three different times during the presentation of the State’s case in chief the court, in the absence of the jury, sua sponte, made inquiry into appellant’s competency to stand trial. The first inquiry came after the testimony of Jesus Davila. The second inquiry came after the testimony of Josefa Davila, Rufina Garcia and Luis Garcia. The third and last inquiry came after the testimony of Connie Rios and the arresting officer, W. W. Whatley, Jr.

These inquiries revealed that appellant’s court-appointed attorney had recently rep-resénted the appellant in a burglary case in Kleberg County and that the issue of competency to stand trial had not been raised in that case, that no pre-trial motions had been filed in the instant case, that counsel hadn’t thought about having appellant examined by a physician or a psychiatrist “until today.” He related he had talked and communicated with the appellant during the earlier trial and had visited with him in the county jail prior to the instant trial. He related he had received numerous letters from the appellant, but the suggestions contained therein were nothing other than “jailhouse law” and of no practical value. Counsel expressed the opinion that appellant’s judgment was poor. He based this on the fact that appellant had rejected a five year term as a part of a plea bargain agreement. When asked if appellant’s ideas made sense, counsel merely referred to the facts of the instant case, his personal knowledge of the complaining witness, and the lack of provocation concerning the instant offense.

Luis Garcia testified in the inquiry that he saw the appellant in the jail and he was “not normal.” Later, however, he stated the appellant was in full command of himself. When asked if the appellant was crazy, he answered, “No, not quite. He was talking fine. He was talking just right.” Connie Rios testified she also saw the appellant in jail, that he answered questions, told her things and was able to communicate with her, that he made sense.

Arresting Officer Whatley testified during the inquiry that at the time of arrest the appellant came at him, that he pulled his gun and told appellant to freeze, which he did. Appellant was then handcuffed and arrested for aggravated assault, drunk and disorderly conduct. He related that appellant was upset, cursed, and made threats, and on the way to jail kept yelling obscenities to people on the street. He expressed the opinion that appellant was intoxicated at the time. He thought appellant was mean as opposed to crazy.

Tom Grace, captain in charge of the county jail, testified he had known the appellant for eight years, that appellant had been in jail under his supervision for several months prior to trial, that he observed him and communicated with him daily. He expressed the opinion that appellant could think straight, knew what he was doing, and was normal. Grace did not think appellant was crazy or out of contact. In his opinion appellant could communicate with his lawyer and answer questions. He stated that appellant was “very mean, very cold.” He related that only recently an inmate was stabbed in the same cell where appellant was and that on another occasion a fire had been started in appellant’s cell. He didn’t know whether appellant had anything to do with the fire, but believed appellant had done the stabbing.

At the conclusion of the third inquiry and before any testimony was offered by the defense, the court dictated the following into the record:

“The Court has inquired out of the presence of the jury into the competence of the Defendant to stand trial, and based upon what the Court has heard from several witnesses, based further upon the Court’s personal observations of the Defendant in Court, conferring with his counsel, his general demeanor, the Court is of the opinion and does so find that the Defendant is mentally competent and capable of standing trial.”

For the first time after such ruling in mid-trial appellant’s counsel asked for the appointment of a psychiatrist. The motion was denied.

Article 46.02, § 1, V.A.C.C.P., in effect at the time of appellant’s trial on June 7,1976, read:

“Section 1. (a) A person is incompetent to stand trial if he does not have:
“(1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or
“(2) a rational as well as factual understanding of the proceedings against him.
“(b) a defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.”

See Acts 1975, 64th Leg., p. 1095, ch. 415, § 1, eff. June 19, 1975. This was a codification of the test of competency approved by the United States Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

§ 2(b) of Article 46.02, supra, in effect at the time of appellant’s trial, provided:

“(b) If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”

§ 4(a) of Article 46.02, supra, in effect at the time of appellant’s trial, provided:

“Sec. 4(a) If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled to determine the defendant’s competency to stand trial. This determination shall be made by a jury that has not been selected to determine the guilt or innocence of the defendant.”

We are not here confronted with a situation where the trial judge failed to halt the proceedings on his own motion or the question of the sufficiency of the evidence to cause the judge to halt the proceedings to make inquiry. See Article 46.02, § 2(b), supra; Johnson v. State, 564 S.W.2d 707 (Tex.Cr.App.1977). Here the trial judge stopped the proceedings three times to make inquiry, but concluded that a separate competency proceeding before a separate jury was not necessary.

We conclude that his decision was correct when the test of § 1(a) and § 2 is applied. While the questions were not as carefully phrased as they might have been, the record shows the sufficient present ability of the appellant to consult with his lawyer with a reasonable degree of rational understanding, and a rational and factual understanding of the charges against him.

Captain Grace, who had known the appellant for eight years, and had had him under daily observation for several months in jail, testified the appellant was normal, could think straight, and knew what he was doing, and could communicate with his lawyer. The testimony of Connie Rios and Luis Garcia showed that appellant was able to communicate with them, made sense, and was in full command of himself. His attorney had represented him in another felony case a short time before and did not raise any issue as to competency. He had communicated with him about the instant case and had not filed any pre-trial motions relating to a question of competency to stand trial. He thought appellant’s judgment was poor because he rejected a plea bargain, etc., but he hadn’t thought about a psychiatric examination until after the court conducted its’ first inquiry. At no time did counsel contend that the appellant had no rational understanding of the charge against him or lacked the ability to consult with counsel with a reasonable degree of rational understanding. There, of course, is a presumption of competency under the statutes.

The court did not err in finding that appellant’s incompetency to stand trial was not supported by sufficient evidence, did not err in refusing to impanel a jury to pass on such question, and in refusing to appoint a psychiatrist when the request was made for the first time in mid-trial under the circumstances here presented.

Next, appellant complains the trial court erred in overruling his objection to a misstatement made by the prosecutor in argument at the guilt stage of the trial.

The prosecutor argued that appellant’s trial counsel had misled the jury when he argued “there couldn’t be a psychiatrist for Joe Dinn, Jr.,” as all he had to do was request the court to appoint one. The objection was, “We object to that, Your Hon- or. It’s discretionary with the court.” The objection was overruled.

Earlier appellant’s counsel argued, “And by the way, Mr. Kamin (prosecutor) asked why didn’t we get a psychiatrist or bring a psychiatrist down here to testify. Ladies and Gentlemen, that should answer itself. Those people don’t work for nothing. Here’s a man that’s been in jail for more than a year. He can’t afford a lawyer . He doesn’t have the money to hire a lawyer to represent him and yet Mr. Kamin says why didn’t I go get a psychiatrist. And I’d say that would cost at least $250.00 and that’s not available.”

The prosecutor’s objection as to the argument being misleading as to the law and facts was sustained. The record reflects that the prosecutor had never asked why the defense had not obtained a psychiatrist. The defense counsel put those words in the prosecutor’s mouth, and in trying to answer the question he raised himself he attempted to show the lack of a psychiatrist was due to lack of money and thus invoke sympathy.

In response the prosecutor reminded the jury of the availability of the appointment of a psychiatrist for an indigent defendant. Appellant points to Article 46.03, § 3(a), V.A.C.C.P., and contends such appointment is not mandatory, but discretionary with the court. However, the prosecutor’s argument was invited by the misleading statement of the defense. While the appellant is correct as to the provisions of Article 46.03, supra, we cannot conclude that the prosecutor’s statement was so erroneous as to be harmful under the circumstances here presented.

The contention is overruled.

Appellant further urges that the trial court erred in overruling his objection to the attacks upon his trial counsel by the prosecutor. The appellant calls our attention to six places in the record where the prosecutor objected to defense counsel’s questions as being side-bar remarks, or as being asked in bad faith or alluding to counsel’s argument as being unethical. The ground of error is multifarious and presents nothing for review. Article 40.09, § 9, Y.A. C.C.P. Nevertheless, we have examined the instances presented and find no objection at the time of trial on the basis now presented on appeal. The contention is without merit.

Lastly, appellant urges the evidence is insufficient to support the enhancement portion of the indictment used to enhance punishment. The appellant argues that although the State offered the pen packet pertaining to the alleged prior conviction it did not call a fingerprint expert or other witness to identify appellant as the one named in the instruments in the pen packet and that when he was on the witness stand and referred to a prior conviction he was not asked any questions so as to identify that conviction as the one alleged in the indictment. This evidence he contends was insufficient to establish the prior conviction as alleged.

It is observed, however, that the appellant entered a plea of “true” to the enhancement paragraph of the indictment at the penalty stage of the trial. In Graham v. State, 546 S.W.2d 605 (Tex.Cr.App.1977), it was held that a defendant who enters a plea of “true” to enhancement paragraphs of an indictment cannot be heard to complain the evidence is insufficient to support the same.

Appellant has overlooked his plea of “true” and the holding in Graham. The contention is overruled.

The judgment is affirmed.

      . The current version of Article 46.02, § 1, supra, contains the same language. (Acts 1977, 65th Leg., p. 1458, ch. 596, § 1, eff. Sept. 1, 1977).

      . The current law contains the same language.

      . Further provisions have been added to said § 4(a), supra, by Acts 1977, 65th Leg., p. 1458, ch. 596, § 1, eff. Sept. 1, 1977. These provisions are not, however, applicable to the instant case.

      . Prior to the amendment of Article 46.02, § 2(b), in effect at the time of appellant’s trial, this court consistently held that before a court will be required to halt proceedings on its own motion it is necessary that evidence come before it, from some source, of sufficient force to create in the judge’s mind reasonable grounds to doubt a defendant’s competency. Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975); Ballard v. State, 514 S.W.2d 267 (Tex.Cr.App.1974); King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974); Quintanilla v. State, 508 S.W.2d 647 (Tex.Cr.App.1974); Perryman v. State, 507 S.W.2d 541 (Tex.Cr.App.1974). These holdings followed that of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), and on occasion this court has stated the evidence must raise a “bona fide doubt” as to a defendant’s competency to stand trial. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Wilborn v. State, 491 S.W.2d 432 (Tex.Cr.App.1973).
      By the 1975 amendment to Article 46.02, the Legislature intended to preserve the bona fide doubt in the mind of the trial judge as the standard of proof to be met before a separate mid-trial determination of the accused’s competency will be required. Johnson v. State, supra.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Jack Bryan SLAGLE, Appellant, v. The STATE of Texas, Appellee.
    No. 54947.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Prank Maloney and David H. Reynolds, Austin, for appellant.
    Ned Granger, County Atty. and Juan Gallardo, Asst. County Atty., Austin, for the State.
    Before ONION, P. J„ and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for driving while intoxicated. Punishment was assessed at 30 days’ imprisonment and a $100.00 fine, probated.

Appellant’s first ground of error complains that the trial court erred in submitting the instruction concerning the presumption of intoxication under Article 67017 -5, Section 3(a), V.A.C.S., because the State failed to prove beyond a reasonable doubt the facts required to establish said presumption. It is the contention of appellant that the testimony on the administration of the breathalyzer examination showed that the results of a breathalyzer test could vary according to a number of variables. These variables included the body temperature of the subject, the temperature of the subject’s breath, whether the subject discharged alcohol through his saliva glands, the ratio of blood alcohol to alveolar alcohol, whether the subject hyperventilated, the time lapse between operation of the motor vehicle and administration of the breathalyzer test, the amount of solution in the test ampoule, and whether the subject’s circulatory system was at equilibrium. However, it is noted that at no time did the appellant establish that these particular variables that might create error in the test results were applicable to him at the time the test was administered.

Article 67017-5, Section 3(b), V.A. C.S., provides:

“(b) Chemical analysis of the person’s breath, to be considered valid under the provisions of this section, must be performed according to methods approved by the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose. The Texas Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of the Texas Department of Public Safety.”

Appellant does not contend that the eviden-tiary basis for submission of the presumption to the jury, as set forth above, was not established by the evidence. Neither does appellant contend that the evidence of the breathalyzer test results was introduced without a proper predicate as required under Texas case law. Although appellant’s Ground of Error No. 1 on appeal does not comport with his written objections to the charge at the time of trial, we conclude that the trial court did not err in submitting the instruction on the presumption of intoxication to the jury. Nor did the trial court misstate the law in submitting the instruction to the jury. V.T.C.A., Penal Code Section 2.05(1) provided at the time of appellant’s trial:

“When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; . . .”
(Emphasis added)

Thus, the law mandated submission of the instruction concerning the presumption of intoxication if there was sufficient evidence of the facts required to give rise to the presumption. The only requirements for the presumption to become operative are that (1) the test “be performed according to methods approved by the Texas Department of Public Safety and [(2)] by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose.” The evidence reflects that the appellant was stopped by Highway Patrol Officer Martin at approximately 1:22 a. m. on November 3, 1974. Appellant was stopped after being observed driving erratically and failing to remain in a single marked lane. Upon being stopped and asked to exit his vehicle, the appellant walked with some hesitancy towards the rear of the vehicle, leaned on his vehicle, had red, glassy eyes, was swaying as he stood, had “thick tongued” speech, and smelled of alcoholic beverages. He was arrested for driving while intoxicated and was transported to the Travis County Sheriff’s Office. He was read the standard warning and agreed to take the breathalyzer examination. He was tested at 1:58 a. m. by Officer Martin with a test result showing .11 percent alcohol present in appellant’s blood. Officer Martin is certified by the Department of Public Safety for conducting such tests and operated this test according to the DPS “Breathalyzer Operational Checklist.” The evidence shows that the facts giving rise to the presumption were proven by the State. These particular facts were never controverted by the appellant, save for the question of the voluntariness of his consent to take the test which was not presented here on appeal. Thus, we must conclude that there being no contested factual issue concerning the facts giving rise to the presumption, the trial court was under a mandatory obligation to submit the presumption to the jury. The evidence of the breathalyzer test results having been admitted into evidence without objection, the jury was free to conclude that the presumption of intoxication applied and proved the element of intoxication in appellant’s prosecution for driving while intoxicated.

The evidence relied upon by the appellant for the proposition that, as a matter of law, the presumption was inapplicable really addresses the question of whether the use of such a presumption is appropriate. Such a decision is legislative in nature and is foreclosed by the Legislature’s judgment as reflected in Article 6701/-5. It is our belief that the Legislature was cognizant of the possible variables involved in the administration of the breathalyzer examination insofar as it provided the right, upon request, to have a blood test conducted for the purpose of determining the alcoholic content of the blood. We note that there is no evidence that the appellant requested such an examination. Furthermore, the appellant has not demonstrated that he himself possesses those unique physical characteristics that would remove him from the general class of individuals upon which the scientific assumptions underlying the breathalyzer test theory are based. The evidence adduced by appellant does not “clearly preclude” the jury from finding the presumed fact.

Finally, we note that the appellant was allowed to introduce the evidence concerning these variables before the jury and the jury apparently chose to disregard any discounting effect the appellant thought it might have. Such evidence goes to the weight to be accorded to the breathalyzer test results. The instruction required to be submitted to the jury under V.T.C.A., Penal Code, Section 2.05(2)(B), provides:

“that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find; . . . .” (Emphasis added)

Appellant’s first ground of error is overruled.

Appellant’s next contention is that the presumption involved in Article 67017-5, V.A.C.S., constitutes a presumption based upon a presumption. The appellant bases his contention on the various underlying scientific assumptions upon which the breathalyzer test theory rests. As stated above, the Legislature has seen fit to conclude that these potential margins of error are not sufficiently significant to foreclose the use of the breathalyzer examination results in the prosecution of this offense. The Legislature has made appropriate provision for those individuals who might believe they have such individual variations in their metabolism. These people can request a direct examination of their blood. See Article 6701/-5, Section 3(c), Footnote 4, supra. Further, appellant admits that the presumption has a rational basis. Thus, the doubts of some scientists concerning the accuracy of the breathalyzer examinations conducted in the law enforcement environment are not sufficient to countervail the long line of case law holding that such scientific test results are admissible. Such evidence being admissible and the presumption acknowledged as valid, we cannot conclude that this legal presumption based upon evidence obtained by scientific method, which in turn is premised on scientific assumptions, constitutes the type of eviden-tiary deficiency condemned by this Court in Hart v. State, 152 Tex.Cr.R. 537, 215 S.W.2d 883; Williamson v. State, 156 Tex.Cr.R. 520, 244 S.W.2d 202; Stallings v. State, 158 Tex.Cr.R. 74, 252 S.W.2d 939; and Emanus v. State, Tex.Cr.App., 526 S.W.2d 806.

Appellant’s second ground of error is overruled.

Appellant’s third ground of error complains that the trial court erred in failing to apply the law of Article 67017—5, Section 3(a), V.A.C.S., and V.T.C.A., Penal Code, Section 2.05 to the facts of this case. Counsel for the appellant acknowledges that no objection was made to the alleged omission, but that the omission constitutes fundamental error and may be reviewed by this Court. Cf. Romo v. State, Tex.Cr.App., 568 S.W.2d 298; Pitts v. State, Tex.Cr.App., 569 S.W.2d 898. Appellant filed no special requested instruction, but suggests that the court should have submitted a charge of the following tenor:

“Now, if you believe from the evidence that a chemical analysis of the blood, breath, urine or other bodily substance of the Defendant, Jack Bryan Slagle, showed beyond a reasonable doubt that the blood of the Defendant contained .10 percent or more of alcohol by weight at the time of the act alleged, then you may presume that the Defendant was under the influence of intoxicating liquor, but you are not bound to make this presumption; but if you do not find that all of the facts showed such a percentage of alcohol in the blood of the Defendant, or if you have a reasonable doubt thereof, then you will acquit the Defendant and say by your verdict, ‘Not Guilty.’ ”

The charge of the court applying the law to the facts of this cause reads:

“V.
“Now, if you believe from the evidence beyond a reasonable doubt that the Defendant, Jack Bryan Slagle, did on or about the 3rd day of November, A.D. 1974, while under the influence of intoxicating liquor, operate a motor vehicle upon a public road within the County of Travis, State of Texas, then you will find the Defendant guilty of the offense charged and so say by your verdict. But in no event can you convict the Defendant unless from the evidence in this case you find and believe beyond a reasonable doubt that he was under the influence of intoxicating liquor at the very time he is alleged to have driven an automobile upon a public road in the County of Travis and State of Texas, and if you have a reasonable doubt thereof you will acquit the Defendant and say by your verdict ‘Not Guilty’.”

Our determination of whether fundamental error exists in the court’s charge must be based on the record as a whole. We note that the two immediately preceding paragraphs of the court’s charge read:

“HI.
“You are further instructed that if it is shown by chemical analysis of a person’s blood, breath, urine or other bodily substance, that there was at the time of the act alleged 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor; however, such amount of alcohol in the blood of the person, if you find there was such amount of alcohol in the blood of the person, merely raises a legal presumption that such person was under the influence of intoxicating liquor, which presumption may be overcome by competent evidence showing that such person was not under the influence of intoxicating liquor.
IV.
You are charged that the facts giving rise to the presumption must be proven beyond a reasonable doubt.
You are charged that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find.
You are further charged that if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the element to which the presumption applies, or any other element of the offense charged, it shall acquit the defendant and say by its verdict not guilty.”

It is our conclusion that the appellant’s rights were adequately protected by the charge of the court as given and appellant has not been denied a fair and impartial trial. Appellant’s third ground of error is overruled.

Appellant argues in his fourth ground of error that he was denied his right to due process and a fair trial when the results of the breathalyzer examination were introduced without a showing that the test was scientifically reliable. The admissibility of the breathalyzer examination test has long been acknowledged, provided the proper predicate is established. See Hill v. State, supra; French v. State, supra; Reyna v. State, supra; Palafox v. State, supra; Langford v. State, Tex.Cr.App., 532 S.W.2d 91; Cody v. State, supra.

Article 67017-5, Section 3(a) provides for the admissibility of breathalyzer test results. See Footnote 1, supra. As already stated above, the predicate provided in Article 67017 -5 for the admission of such evidence was satisfied. The State does not have to establish as part of its predicate that the breathalyzer examination is a scientifically reliable test before the results are introduced.

Appellant’s fourth ground of error is overruled.

Appellant’s final ground of error complains that the caption to the amendment of Article 67017-5, Section 3(a), V.A. C.S., fails to provide the type of notice required under Article III, Section 35, of the Texas Constitution. Article III, Section 35, of the Texas Constitution provides:

“No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.”

The caption to House Bill 261 which amended Article 802f, Vernon’s Texas Penal Code, the predecessor to Article 67017-5, provided:

“An Act providing for the establishment of presumptive limits of blood alcohol in a person’s blood, urine, breath, or other bodily substances in certain criminal proceedings; amending Sections 2 and 3, Chapter 434, Acts of the 61st Legislature, Regular Session, 1969 (Article 802f, Vernon’s Texas Penal Code); and declaring an emergency.” Acts 1971, 62nd Leg., p. 2340, ch. 709, effective June 7, 1971.

The appellant erroneously cites the caption to Senate Bill No. 74 which was the original enactment of Article 802f, Vernon’s Texas Penal Code, the predecessor to Article 67017 -5. It is noted that in the original enactment there was no presumption of intoxication based on a particular amount of alcohol detected by way of any of the scientific examinations specified. See Acts 1969, 61st Legislature, p. 1468, ch. 434, effective September 1, 1969.

As is readily apparent from a reading of the correct caption, the Legislature and the public were provided sufficient notice that the amendment was establishing a presumption of intoxication based on a specific amount of alcohol in an individual’s blood. See Castellano v. State, Tex.Cr.App., 458 S.W.2d 73; White v. State, Tex.Cr.App., 440 S.W.2d 660; Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189, 194 (1958).

Appellant’s fifth ground of error being without merit, it is hereby overruled.

There being no reversible error, the judgment is affirmed.

      . “Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle and while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by chemical analysis of his blood, breath, urine, or any other bodily substance, shall be admissible and if there was at that tíme 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.

      . A predicate for the admissibility of the results of a breathalyzer examination requires a showing that (1) properly compounded chemicals were used in the test, (2) there has been periodic supervision over the machine and the machine was operated by an individual who understands its scientific theory, and (3) the results of the breathalyzer test are testified to by one qualified to translate and interpret those results in order to eliminate hearsay testimony. See Cody v. State, Tex.Cr.App., 548 S.W.2d 401; Palafox v. State, Tex.Cr.App., 509 S.W.2d 846; Reyna v. State, Tex.Cr.App., 508 S.W.2d 632; French v. State, Tex.Cr.App., 484 S.W.2d 716; Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93.

      . Appellant’s written objection to the charge submitted at the time of trial reads, in pertinent part:
      “Defendant objects to Paragraphs III and IV of the court’s charge because same is not a correct statement of law, violates the Texas and federal constitution in that it shifts the burden of proof, and further said paragraph constitutes a comment on the weight of the evidence.”
      The latter two objections were not presented on appeal either.

      .“You are under arrest for the offense of driving while intoxicated. I hereby request that you submit to a chemical breath test to determine the alcoholic content of your blood.
      If you refuse to take this test your driving privilege and drivers license can be suspended.
      In addition to the breath test you have the right to have a physician, qualified technician, chemist or qualified professional nurse of your own choosing administer a chemical test, or tests, within a reasonable time (not more than two hours) after your arrest.”


text:
    Willie BRYANT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 54948.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Thomas D. White, Houston, for appellant.
    W. Jack Salyer, Dist. Atty., Bay City, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated robbery, wherein the punishment was assessed by the jury at twenty (20) years’ confinement in the Department of Corrections.

Initially, appellant contends the indictment is fundamentally defective and does not charge an offense against the laws of the State. Omitting the formal parts, the indictment charged:

“. . . Defendant, on or about the 4th day of September, A.D.1975, and before the presentment of this indictment, in said County and State, did then and there while in the course of committing theft and with intent to obtain property of Paul Lewis, the owner of the following described property, to-wit: lawful money of the United States of America in the amount of $485.75 without the effective consent of said owner and intent to deprive the said owner of said property, did then and there exhibit a deadly weapon, to-wit: shotgun, and did then and there intentionally and knowingly threaten and place the said Paul Lewis, the owner of said property, in fear of imminent bodily injury and death . . . .” (Emphasis supplied.)

Appellant argues the indictment alleges he had no intent to deprive the complainant of his property. He contends that when it states “without effective consent of said owner and intent to deprive said owner of said property” the word “without”' is carried over to “intent to deprive said owner of said property” and thus alleges he did not have the requisite intent, an essential element of the offense charged. He therefore claims that the indictment is fundamentally defective although no motion to quash the indictment was filed.

The State counters with the statement that the printed form of the indictment (16-3016-Indictment Robbery/Aggravated) was prepared by Hart Graphics of Austin and is used extensively throughout the State. This, of course, would not save a fundamentally defective indictment. While the indictment form should have had the word “with” inserted before “intent to deprive the owner of said property,” we cannot conclude that the appellant was misled or that the absence of such words renders the indictment fundamentally defective when the indictment is read in its entirety. The omission of the word “with” was not so essential to the certainty necessary in the description of the offense as to render the indictment void. See Stephens v. State, 69 Tex.Cr. 437, 154 S.W. 996 (1913). The sense of the indictment is not affected and the meaning cannot be mistaken.

Next, appellant challenges the sufficiency of the evidence to sustain the conviction. Appellant’s counsel acknowledges that this ground of error is “weak” and we agree. The record shows that on September 4, 1975 two men with women’s hose over their faces entered the Sonic Drive-In in Bay City and robbed Paul E. Lewis, the manager, of over $400.00 at gunpoint and beat him as well. Both Lewis and his wife, who was present, identified the appellant as one of the robbers. Charles Brown, a co-in-dictee, testified that he was with the appellant and Don Stone when the robbery was planned and a gun was obtained. He drove them near the Sonic Drive-In and saw them with their masks. He related they later appeared at a nearby bar with the money.

The appellant admitted he was in Bay City at the time in question for the purpose of attending revival meetings, but denied he had committed the robbery in question. We find the evidence sufficient to sustain the jury’s verdict.

Appellant also contends the trial court erred in failing to grant a mistrial when the prosecutor on direct examination elicited evidence of an extraneous offense.

Detective Douglas Holland testified he investigated the robbery charged and that he had Lewis come to the city hall to view some suspects. He stated that appellant was not in the group of suspects. The record then reflects:

“Q Where was he?
“A He was out in another room.
“Q All right, were you interrogating him on another matter?
“A Yes, sir.”

The objection thereto was sustained and the jury was instructed to disregard the last question and answer. The mistrial motion was overruled after being argued in the absence of the jury. When the jury returned, the court again instructed the jury to disregard.

Appellant cites no authority to support his contention, and we conclude the instruction of the trial court was sufficient to cure the error, if any.

In another ground of error, appellant re-urges the contention discussed above and points to Holland’s testimony on re-direct examination that during his investigation of the instant case he picked up several people with a history of armed robbery and brought them in for questioning. There is nothing to show that the appellant was one of those “people.” Further, there was no objection made and nothing is presented for review.

Appellant next contends the State committed reversible error when it failed to make a full disclosure of the agreement between it and the accomplice witness Charles Brown.

The record shows that co-indictee Brown was granted immunity from prosecution for the instant robbery in the presence of the jury prior to his testimony. On cross-examination, he readily admitted he had been released on a $100,000.00 bond, but that he didn’t know what happened, “I was in jail and all I know I got out.” He had not paid anyone to make the bond. Brown further related he had been on probation and he had been promised his probation would not be revoked if he testified for the State. He denied that anything else had been promised him. He was thoroughly cross-examined on the matter.

Now on appeal appellant claims that after time for completing the appellate record had elapsed “evidence is bubbling to the surface to the effect there was an additional agreement with regard to the probation and the release of Charles Brown . . .” Just what additional agreement there could have been with regard to the probation and release is not asserted. There is certainly nothing in the record to support appellant’s claim. We find no motion or request by appellant for any additional information and no basis or evidence that the State should have disclosed information without request. There is no indication of suppression of evidence. Appellant’s contention is overruled.

Appellant further contends the court “erred in permitting the prosecutor to show the police had had the fingerprints of appellant for about six (6) years prior to his trial.”

On direct examination, the appellant testified that after his arrest in the instant case the police had taken his fingerprints and had had them for six months, and that he had no objections to the police trying to match them with fingerprints taken from the Sonic Drive-In. Then on cross-examination the prosecutor asked:

“Q Now, you stated to your lawyer just then and this Jury that the police had fingerprints for about six months?
“A For about six months.
“Q Is it more likely six years?
“A About six months.”

Appellant’s counsel objected, and in the absence of the jury moved for a mistrial because the prosecutor was attempting to show that the nineteen year old appellant had his fingerprints taken when he was thirteen years old and that he had been in trouble with the police for six years. The prosecutor then elicited from the appellant that he had been convicted of sale of marihuana on November 25,1971, and then elicited other arrests and convictions, and attempted to show he had been printed when arrested on these occasions. The prosecutor argued that the appellant had testified he had never before been printed until six months before trial and he was entitled to impeach the appellant. This, of course, was a misunderstanding of the testimony, but it does tend to clarify the action of the prosecutor. At the conclusion of the hearing outside the presence of the jury, the mistrial motion was overruled. When the jury was returned, the matter was not pursued.

We cannot agree that the court permitted the prosecutor to show that appellant’s fingerprints had been taken six years previously. The prosecutor merely asked if it was more likely the fingerprints had been taken six years ago, and the appellant responded, “About six months.” There was no showing before the jury therefore that prints had been taken six years ago. The matter was not further pursued. Under the circumstances, we cannot perceive reversible error.

Further, the appellant contends the conviction should be reversed because the trial judge would not instruct the jury to disregard evidence elicited by the prosecutor that he (appellant) was arrested on September 4, 1975 for an offense other than the instant robbery.

On cross-examination of the appellant, the record reflects:

“Q Now, then, Mr. Bryant, I believe you also told this Jury that you were arrested for this robbery charge on September 4, 1975?
“A Yes, I was arrested on September 4, 1975.
“Q That is not correct either, is it?
“A I was arrested September 4, 1975.
“Q But not for robbery?”

Upon objection and without the question being answered, there was a discussion at the bench, and without the appellant obtaining a ruling on the objection, the interrogation continued. The appellant denied being served with an arrest warrant on the instant robbery, but thereafter a stipulation was entered that appellant was charged with and an arrest warrant served on him on September 5, 1975, for the instant robbery offense. We find no request that the jury be instructed to disregard the prosecutor’s unanswered question. No reversible error is presented.

Next, appellant complains, again without citation of authority, that the court erred in permitting the prosecutor to show that the co-defendant Stone was already in the penitentiary.

On cross-examination of the appellant, the record reflects the following:

“Q You have known Charles Brown and Don Stone most of your life?
“A Yes sir, I have.
“Q We know where Charles Brown is, where is Don Stone?
“A From my knowledge, he is in the County jail.
“Q Isn’t it true that he is in the penitentiary?
“MR. WHITE (defense counsel): We object to that. My gosh, may we approach the bench on that?”

Thereafter, in the absence of the jury, appellant’s counsel moved for a mistrial on the ground that the prosecutor had injected the fact that the co-defendant Stone had already been found guilty and was in the penitentiary, which deprived the appellant of a fair and impartial trial. The mistrial motion was overruled. In the presence of the jury, the matter was not pursued. We observe that the question was never answered, and there was no showing that if the co-defendant Stone was in the penitentiary he was there confined as a result of the instant robbery. Under the circumstances, there is no reversible error.

Lastly, appellant complains the court erred in failing to instruct the jury to disregard the testimony of Charles Brown, an accomplice witness, that appellant and Stone “went on and pulled the job.”

Brown testified he had driven the appellant and Stone to the vicinity of the robbery scene. On direct examination, the following occurred:

“Q Dropped them off on the corner?
“A The corner from the Sonic Drive-In. I continued and went on to the Cadillac Bar and they went on and pulled the job.”

Thereafter, appellant’s counsel objected and requested the jury be instructed to disregard the last statement. The court held its ruling in abeyance and the appellant never again renewed his request or obtained a ruling thereon. Brown, who had testified as to the planning of the robbery, the obtaining of the gun and the transportation to the scene, later related appellant and Stone appeared at the Cadillac Bar with the money. Since he was not an eyewitness to the offense, he should not have been permitted to testify “they went on and pulled the job” even though the statement was unresponsive to the question asked. However, the appellant never secured a ruling on his objection or his request for a jury instruction, and in light of all the circumstances we cannot conclude the error was reversible error.

The judgment is affirmed.

      . There is some confusion in the record as to appellant’s age. At the trial which commenced on March 22, 1976, the appellant testified that he was nineteen years old, but then added he was “born August 15, 1946.” If the birth date given is correct, this would explain his conviction in 1971 as an adult.

      . The district attorney also argued the State’s file had been made available to the defense counsel and that he knew that no fingerprints had been lifted at the scene of the robbery and that he was making a grand stand play about the appellant’s willingness to have his fingerprints matched with nonexistent prints.


text:
    Theran Noble AYERS, Appellant, v. The STATE of Texas, Appellee.
    No. 55365.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Thomas A. Autry, Austin, for appellant.
    Ronald D. Earle, Dist. Atty., and Bill White, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana, wherein the punishment was assessed by the court at four (4) years, probated.

The alleged offense occurred on February 10, 1974. The indictment was returned on July 30, 1974, and the appellant was tried before the court on a plea of not guilty on April 23, 1975. Following the conviction and notice of appeal, the appellate record reached the Court of Criminal Appeals on June 30, 1977, more than two years after the trial.

On July 6, 1977, a week after the appellate record was received, the appeal was dismissed for want of a proper judgment in accordance with Article 42.01, V.A.C.C.P. See Savant v. State, 535 S.W.2d 190 (Tex.Cr.App. 1976); Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App. 1976).

On October 6, 1977, the trial court again had the appellant before the bench and again assessed punishment, both the court and counsel being under erroneous impressions as to why the appeal was dismissed. The supplemental record was received in the court on June 1, 1978, along with a proper judgment and briefs which had not originally been filed.

Appellant raises two grounds of error on appeal. Because we agree with appellant’s second claim that the evidence is insufficient to sustain the conviction, we need not reach appellant’s first contention that the search warrant affidavit did not meet the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The record reflects that Austin police officers executed a search warrant at 3219 Nancy Gale in Travis County on February 10, 1974, which was based on an affidavit which stated, among other things, that appellant and one Diana Ingram were keeping, using and selling marihuana at said address. Upon entering the house, the officers found Randy Underwood and Susan Ray in the living room. Appellant was found behind the door of a bathroom with a gun which he “handed” (R. 49) to the officer present. Diana Ingram was found in a bedroom closet in which two bags of marihuana were discovered. Sgt. James Belvin testified that additional marihuana was found in a gray can on the side table in the dining room, in a red fruit cake can on the floor beside a chest in the living room, and that marihuana seeds were found in a Mason jar on the top of the chest and in a coffee can in the chest. Sgt. A. T. Lamme of the Austin Police Department described the amount of marihuana found as being seventeen to twenty-one ounces with thirteen ounces being seeds. $1,300.00 in cash was also found.

The record indicates that the officers made no cheek to see who had leased or rented the house. The utilities were in the name of one Terry Newmar, which Lamme thought was a fictitious name. Some mail or personal papers were seized, but Lamme stated they “were all to their post office box they had been using out in Manchaca, as I recall.” Lamme did not describe whom he meant by “they” and the names on papers were not revealed nor were the papers introduced into evidence. Although there was some testimony regarding surveillance of the house, the record is completely silent as to what the off and on surveillance revealed, if anything, as to this appellant. No contraband or money was found in the bathroom in which appellant was found and there was no showing that any contraband or cash was found on the appellant in a search of his person which was conducted at the scene.

It is well settled in this state that to establish unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App. 1975); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App. 1972). Moreover, possession of contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App. 1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App. 1976); Curtis v. State, supra. However, mere presence of an accused at a place where contraband is being used or possessed does not justify a finding of joint possession. Harrison v. State, supra; Payne v. State, supra; Woods v. State, supra.

Therefore, whether the theory of prosecution is sole or joint possession, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it. Woods v. State, supra, at p. 18, and the cases cited therein.

The State bases its contention that appellant jointly possessed the contraband in the instant case on two circumstances. Initially, appellee asserts that the information received through the informant which named the appellant provides an affirmative link between appellant and the contraband. However, we conclude that whatever the informant told the officers is no more than hearsay which certainly cannot be used in determining the sufficiency of the evidence. See, Irvin v. State, 563 S.W.2d 920 (Tex.Cr.App. 1978) (On rehearing). See also, Maden v. State, 542 S.W.2d 189 (Tex.Cr.App. 1976). Appellee next contends that the discovery of appellant in the bathroom with a gun is sufficient to affirmatively link him to the contraband found in other parts of the house. Based upon the record which has been presented for our review in this cause, we cannot agree with this contention.

The record reflects that officers, armed with a search warrant, conducted a search at the address in question pursuant to a search warrant. The warrant was based on an affidavit which states appellant and Ingram were keeping, using and possessing marihuana. The appellant was found in the bathroom of the house at the time of the search warrant. There was no showing that he had leased or rented the house, had the utilities in his name, or shared joint possession of the house. None of his. personal clothing or possessions were shown to be in the house. No cash or contraband was shown to have been found on his person. The personal papers and mail which were seized bearing a different address were not shown to reflect his name. There was no evidence of furtive gestures toward the contraband when the officers entered the premises, and no evidence of any marihuana smoke, no evidence of the appellant being under the influence of marihuana or other drugs, and no incriminating statements at the time of the arrest. However, the fact that appellant was found in the bathroom with a weapon in his hand seems to be relied upon by the State as an inference of an attempt to escape. We conclude that appellant’s presence in the bathroom with a weapon, which he surrendered without resistance, is insufficient, standing alone, to affirmatively link him to the contraband which was seized in other parts of the house.

In Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1, the United States Supreme Court by opinion on June 14, 1978, held that the “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence le-gaily insufficient . . . In Greene v. Massey, - U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15, handed down the same day as the Burks decision, the Supreme Court held, “Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we are bound to apply the standard announced in Burks to the case now under review.”

Having found that reversal must result in the instant case since we concluded that the evidence is insufficient to support the conviction, the Supreme Court’s decisions in Burks v. United States, supra, and Greene v. Massey, supra, dictate that no further prosecution be had in this cause.

The judgment of conviction is set aside and is reformed to show an acquittal.

For the reasons stated, the judgment is reversed and the cause is remanded.

      . The stipulation as to the chemist report shows 11.241 ounces of marihuana and 10.13 ounces of marihuana seeds.


text:
    Charles BOWERS, Appellant, v. The STATE of Texas, Appellee.
    No. 55683.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Larry D. Dowell, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Ted Poe, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated kidnapping. Punishment was assessed at 50 years’ imprisonment.

Appellant’s first ground of error complains that the instant conviction violates the prohibition against double jeopardy under the Fifth Amendment to the United States Constitution and the applicable Texas Constitution and statutory provisions. Article I, Section 14, Texas Constitution; Article 1.10, V.A.C.C.P. Appellant’s argument is premised upon the initial position that he has previously been convicted for aggravated robbery, an offense which was an indistinguishable part of the same continuous criminal transaction from which the instant offense arose. He directs this Court’s attention to the appeal of his alleged prior conviction for aggravated robbery in our Cause No. 53,930. We note that this Court issued a per curiam opinion in that cause on January 12,1977, in which we dismissed the appeal in light of a supplemental transcript showing that the trial court granted appellant a new trial on December 13, 1976, pursuant to Article 40.09, Section 12, V.A.C.C.P. The appellant’s reliance on Ex parte Birl, Tex.Cr.App., 545 S.W.2d 169; Ex parte Jewel, Tex.Cr.App., 535 S.W.2d 362; Ex parte Evans, Tex.Cr. App., 530 S.W.2d 589; Ex parte Prince, Tex.Cr.App., 549 S.W.2d 753; and Ex parte Santillan, Tex.Cr.App., 532 S.W.2d 638, is misplaced. It is axiomatic that before the doctrine of carving can be applied to reverse a subsequent conviction for an offense arising out of the same criminal transaction against the same victim which formed the basis for a prior conviction, there must be a prior conviction.

Article 40.08, V.A.C.C.P., provides that:

“The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. Tjhe former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.”

See also Reed v. State, Tex.Cr.App., 516 S.W.2d 680. We therefore conclude, on the facts of this case, that the State has not violated the “carving doctrine” by prosecuting appellant for aggravated kidnapping in light of the grant of a new trial in his previous conviction for aggravated robbery. The net effect of the above described events is to render the instant conviction the first conviction of an offense arising out of the criminal episode to be described below. Appellant’s ground of error one is overruled.

Appellant complains in his second ground of error that the trial court errecj in denying his motion for new trial which alleged that the court erred in failing to grant the appellant ten days to prepare from the time he received a copy of his indictment. Pretrial proceedings in this cause show that appellant was previously indicted for aggravated kidnapping in Trial Cause No. 213428. On October 29, 1975, appellant was re-in-dieted in Trial Cause No. 247448. The only difference between the re-indictment and the previous indictment was that the present indictment specifically identified the felony that the appellant was facilitating when he abducted the victim. Appellant was apparently represented by the same trial counsel on both indictments. The record shows trial counsel’s statement that he had previously filed a motion to dismiss the first indictment on July 17, 1975, although no such motion appears in the present record. The record reflects that the appellant was served with the present indictment on January 30,1976, and that his attorney was served on February 2, 1976. This matter was brought to the trial court’s attention by trial counsel who merely stated that he was prepared to proceed under Trial Court Cause No. 213428 and that all his motions had been filed under that cause number. The State responded that the appellant had sufficient notice of the charges for a considerable period of time and that he desired a speedy trial. Without further objection from appellant’s trial counsel, the trial court ruled that trial would proceed under Trial Court Cause No. 237448 and the present indictment. The trial court further authorized the duplication and refiling of any motions filed under the previous Clause No. 213428 and indictment. Appellant then reurged a number of motions previously filed, obtained the trial court’s ruling on them and proceeded to trial without any further objection or a motion for continuance.

First, appellant relies on Article 26.04(b), Y.A.C.C.P., which provides:

“The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

This provision of the Code only applies to appointed counsel. There is no showing in this record that appellant’s trial counsel was appointed for this trial. The only evidence of indigency in the record is a pauper’s oath filed after appellant was convicted and sentenced. Therefore, the express mandatory provisions of Article 26.-04(b), V.A.C.C.P., do not apply to the instant cause. Banks v. State, Tex.Cr.App., 494 S.W.2d 839. The recent case of Johnson v. State, 567 S.W.2d 214, (1978), is not applicable since appellant filed no motions for continuance pursuant to Article 27.12, V.A.C.C.P. Furthermore, it is clear from the representations of counsel at the pretrial hearing that he had prior familiarity with this cause and nowhere does there appear to be an allegation of surprise or harm. We therefore conclude that appellant’s second ground of error is without merit and is hereby overruled.

Appellant’s third ground of error complains of the trial court’s failure to apply the law concerning the criminal responsibility of one individual for the conduct of another to the facts of appellant’s cause. First, as will be demonstrated within the discussion of the next ground of error, the evidence was clearly sufficient to sustain the conviction of appellant as a primary actor alone. Thus, a charge on the law of parties was in itself unnecessary. Second, this Court’s recent decision on the State’s motion for rehearing in Romo v. State, 568 S.W.2d 298 (1978), categorically disposes of this ground of error. In the instant case no objection was interposed with respect to the court’s charge to the jury as provided for under Article 36.14, V.A.C.C.P. The decision in Romo v. State, supra, makes it clear that a failure to apply the law of principals to the facts of the case is not such an omission that can be construed to be “calculated to injure the rights of defendant.” See Article 36.19, V.A.C.C.P. Furthermore, on review of this entire record, we cannot conclude that the appellant has been denied a fair and impartial trial. Appellant’s third ground of error is overruled.

Appellant finally complains that the evidence is insufficient to support his conviction. However, appellant couches his ground of error in terms that would apply when the evidence relied upon to sustain the conviction is circumstantial. Appellant’s initial assumption that, because there is,an instruction on circumstantial evidence in the court’s charge, the State’s case was necessarily predicated on circumstantial evidence is faulty. The victim of the kidnapping in the instant case rendered first-hand eyewitness testimony on appellant’s participation in her abduction from the time she was forced into the assailants’ automobile. Her testimony shows that on May 3, 1974, while she was four months pregnant, she was the night manager for a 7-11 store working the 12 midnight to 8 a. m. shift. At approximately 3 a. m. an automobile slowly passed by the store with two occupants and then pulled into the parking lot away from her store while she was in the front mopping up. She took down the license number of the automobile and returned to her mopping when a man approached the store from the direction of the automobile. She identified Charles Hamilton as that individual at the trial of appellant. Charles Hamilton entered the store, bought a pack of cigarettes, at which time the victim noticed him pulling a gun. She then flipped the store’s silent alarm just before Charles Hamilton approached her with the gun, demanding all the money. She placed all the money in the sack, whereupon Charles Hamilton told her to get her purse, come with him, and act natural. They approached the car she had previously seen and was told to get in on the driver’s side. She was then sandwiched in between appellant and Charles Hamilton. She testified that appellant, while sitting on the passenger’s side, had a gun in his hand pointed at her stomach with his finger on the trigger. When she asked, “Why take me?”, she received no response. After having difficulty starting the automobile, a police car arrived and Charles Hamilton told the defendant to “kill him,” referring to the police officer. The appellant then shot at the police officer approximately three times and the police officer returned fire. They then left the parking lot and a chase ensued during which the appellant shot at the police officer’s automobile several times. After failing to negotiate a curve during the chase, the automobile crashed into a ditch. The witness was able to leave the vehicle, there being a police officer in front of it with his weapon drawn. Shé further testified that appellant made no effort to release her when she asked, “Why take me?” and that her position in the automobile precluded escape.

The elements required to be established by the evidence in order to sustain this conviction for aggravated kidnapping are:

(1) a person
(2) intentionally or knowingly
(3) abducts
(4) another person with intent to facilitate the commission of the felony or the flight after the attempt or commission of a felony.

See 2 Branch’s Ann.P.C., Section 20.04, Page 74 (3rd Edition). V.T.C.A. Penal Code, Section 20.01(2) defines “abduct” as the restraint of a person “with intent to prevent his liberation by (B) using or threatening to use deadly force.”

V.T.C.A., Penal Code, Section 20.01(1)(A) provides as follows:

“ ‘Restrain’ means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another, or by confining him. Restraint is ‘without consent’ if it is accomplished by: force, intimidation, or deception; . . . ”

The evidence, when viewed in a light most favorable to the jury’s verdict (Ransonette v. State, Tex.Cr.App., 550 S.W.2d 36, 42), clearly demonstrates that appellant presented the victim with the threat of deadly force by pointing a deadly weapon at her stomach with his finger on the trigger while she was ordered to enter the car and was thereby confined between him and his companion, Charles Hamilton. It is clear that the restraint involved was effected through force and intimidation which began in the store and continued throughout the period of time the witness was confined by the appellant and his companion. The commission of the felony of aggravated robbery was established, as was the appellant’s flight from the commission of that felony and his continuing efforts to aid the escape and the kidnapping of the victim. Prom the acts and events described by the victim, the jury was entitled to infer that the actions taken by the appellant were done intentionally or knowingly. See and compare Smith v. State, Tex.Cr.App., 541 S.W.2d 831.

The evidence being sufficient to sustain appellant’s conviction for aggravated kidnapping, appellant’s fourth ground of error is overruled.

There being no reversible error, the judgment is affirmed.


text:
    Jake Edward DAMRON, Appellant, v. The STATE of Texas, Appellee.
    No. 56031.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Richard D. Bird, Childress, for appellant.
    Charles W. Darter, Dist. Atty., Wellington, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana, where the punishment assessed was five (5) years’ confinement, probated.

At the outset we are confronted with appellant’s challenge to the sufficiency of the evidence to sustain the conviction.

The indictment charged that the appellant on or about October 26,1976 “did then and there unlawfully and knowingly possess a useable quantity of marihuana, to-wit: more than four (4) ounces . . ..” (Emphasis supplied.)

Tom Finley, an agent of the Department of Public Safety, testified that in the late afternoon of October 26, 1976, he executed a search warrant at appellant’s house in Estelline; that the only persons present at the time of the search were appellant’s wife and child; that in a bedroom closet he found approximately one pound of marihuana in various containers and some large stems of marihuana plants.

Agent Don Hatcher of the Department of Public Safety generally corroborated Finley’s testimony. Texas Ranger Leo Hickman testified that in the afternoon hours of October 26, 1976 he arrested the appellant at the river bridge on Highway 287, north of Estelline, and held him until the narcotic agents arrived and he released appellant to their custody. Agent Curtis Baker testified he acquired custody of the appellant and took him to the residence in question. The search had been completed and there was no showing that appellant had contraband on his person or made any incriminating statements at the time of his arrest. Appellant’s father testified he visited frequently at his son’s home, and that he was there on Sunday, October 24,1976, two days prior to the search, and that the appellant’s brother-in-law, his wife’s brother, was there. He related that this individual had been previously convicted of possession of marihuana. It was stipulated that the premises in question were the community property of appellant and his wife. The chain of custody of the substance found was established and a chemist testified that the same was marihuana. These then are the facts with which we are confronted in answering appellant’s contention.

In proving possession in a narcotics case, it is not necessary to prove the accused had exclusive possession of the narcotics in question. Collini v. State, 487 S.W.2d 132 (Tex.Cr.App.1972), and cases there cited. It is well established that a narcotic drug may be jointly possessed by two or more persons. Davila v. State, 169 Tex.Cr.R. 502, 335 S.W.2d 610 (1960); Ochoa v. State, 444 S.W.2d 763 (Tex.Cr.App.1969). Thus possession need not be exclusive, and evidence which shows that the accused jointly possessed the contraband with another is sufficient to sustain a conviction. Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976). Proof of possession may be shown by direct or circumstantial evidence. Collini v. State, supra. Thus various facts and circumstances surrounding a search and arrest may be shown to prove that the accused and another person or persons acted together in jointly possessing a narcotic. Collini v. State, supra, at p. 136, and cases there cited.

It must be remembered, however, that mere presence alone at a place where narcotics are being used or possessed by others does not justify a finding of joint possession. Brooks v. State, 529 S.W.2d 535 (Tex.Cr.App.1975); Woods v. State, supra; Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App.1975); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972).

Whether the case is tried on the theory of joint or sole possession of the narcotic, the evidence must affirmatively link the accused to the narcotic he is alleged to have possessed. Harvey v. State, supra. Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971); Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972); Collini v. State, supra. This burden of showing an affirmative link rests upon the State, Payne v. State, supra; Haynes v. State, supra.

As pointed out in Collini, an accused’s knowledge that the substance in his possession is a narcotic drug was an essential element of the offense of unlawfully possessing a narcotic drug under former Article 725b, Y.A.C.C.P., 1925. Under the present Controlled Substances Act (Article 4476-15, § 4.05, V.A.C.S.), a person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.

In Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975), it was held that the evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts.

This was well explained in State v. Carr, 8 Ariz.App. 300, 445 P.2d 857, 859 (1968), where the Arizona court wrote:

“The crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance. Carroll v. State, 90 Ariz. 411, 368 P.2d 649 (1962). Although possession may be shown by direct or circumstantial evidence, the evidence must link the defendant to the narcotics in such a manner and to such an extent that a reasonable inference may arise that the defendant knew of the narcotics’ existence and of its whereabouts. Carroll v. State, supra.” See also State v. Oare, 249 Or. 597, 439 P.2d 885 (1968); Haynes v. State, supra.

In Curtis v. State, supra, at p. 885, this court wrote:

“The State must show that (a) the appellant exercised, either singularly or jointly, care, custody, control and management over the contraband and (b) that he knew the object he possessed was contraband. The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts. Hineline v. State, Tex.Cr.App., 502 S.W.2d 705; Powell v. State, Tex.Cr.App., 502 S.W.2d 705; Williams v. State, Tex.Cr.App., 498 S.W.2d 340. This affirmative link is established by showing facts and circumstances which indicate the accused’s knowledge and control of the contraband. Williams v. State, supra; Powell v. State, supra; Alba v. State, Tex.Cr.App., 492 S.W.2d 555.” .

Where an accused is not in exclusive possession of the premises where the contraband is found, it cannot be concluded that he had knowledge of the narcotic and had control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the narcotics. Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.1972); Harvey v. State, supra; Payne v. State, supra; Hausman v. State, supra; Collini v. State, supra.

In the instant case the appellant was (1) not at the place searched at the time of the search, and (2) there were other persons present at the time of the search and shown to be living there so appellant was not in exclusive possession, (3) the marihuana was found in a closet in a bedroom without any showing it was appellant’s bedroom or the only bedroom in the house and no showing of appellant’s personal belongings in the closet or bedroom or even the observation of any men’s clothing, etc., and (4) appellant was not found in possession of any contraband at the time of arrest nor (5) was he under the influence of any narcotic and (6) he did not make any incriminating statements at the time of arrest.

It is true that it was stipulated that the premises were the community property of the appellant and his wife and there were references to the fact that the house was his residence, and that his wife and child were present at the time of the search. There was no evidence, one way or the other, whether other persons lived or frequently stayed there. The question thus presented is whether the State has established an affirmative link from the appellant to the marihuana found when he was not present under the particular circumstances of this case. Stated another way, is the evidence sufficient to sustain a conviction of an accused, who is not present at the time of the search, where contraband is found in his residence under the above described conditions?

Williams v. State, 521 S.W.2d 275 (Tex.Cr.App.1975), presents a similar fact situation to the instant case. There officers executed a search warrant at a residence in Temple where only the defendant’s wife and a young child were present. 138 tablets of lysergic acid diethylamide were found in the refrigerator. Later the officers went to the defendant’s place of employment and arrested him. The utilities were shown to have been connected in the same name as the defendant, but there was no showing that the defendant was that person. There was no showing that clothing or any other object belonging to the defendant was found in the house at the time of the search, and there was no testimony that anyone had ever seen the defendant on the premises even though the same had been under surveillance by the police prior to the search. In Williams the court stated:

“The meager circumstances here presented do not support the jury’s verdict that the appellant was guilty of either the exclusive or joint possession of the contraband found in the refrigerator. A conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting only to strong suspicion or mere probability is insufficient (citations omitted).”

For the same reasons we conclude, under the facts of the instant case, the evidence is insufficient to support the jury’s verdict.

In Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1, the United States Supreme Court by opinion on June 14, 1978, held that the “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient . . . .” In Greene v. Massey, - U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15, handed down the same day as the Burks decision, the Supreme Court held, “Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we are bound to apply the standard announced in Burks to the case now under review.”

Having found that reversal must result in the instant case since we concluded that the evidence is insufficient to support the conviction, the Supreme Court’s decisions in Burks v. United States, supra, and Greene v. Massey, supra, dictate that no further prosecution be had in this cause.

The judgment of conviction is set aside and is reformed to show an acquittal.

For the reasons stated, the judgment is reversed and the cause is remanded.

      . It was earlier noted that the indictment in the instant case alleged “knowingly.'

      . The accused may be linked to the contraband by evidence showing he had sole access to the place where the contraband was found. Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); 57 A.L.R.3d 1314.


author: ROBERTS, Judge.

text:
    Johnny Bruce BRINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 57071.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.

      Ronald W. Chapman, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve J. Wilen-sky and Will Wilson, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for driving while intoxicated. The appellant pleaded guilty and after a jury trial the jury assessed the appellant’s punishment at two years’ confinement in the Dallas County jail and a five hundred dollar fine.

The appellant contends that the jury never returned a verdict of guilty, that the trial judge improperly allowed the State to reopen, and that the trial judge should have assessed punishment. We affirm.

The record reflects that on the evening of March 21, 1976, the appellant was stopped for running a red light. The appellant was subsequently arrested for driving while intoxicated. The appellant’s first contention is that the jury never returned a verdict of guilt.

Article 37.01, Vernon’s Ann.C.C.P., states that “[a] ‘verdict’ is a written declaration by a jury of its decision of the issue submitted to it in the case.” The jury was charged that “you are instructed to find the Defendant [appellant] guilty as charged in the Information.” However, the following verdict, according to the appellant, is not a verdict of guilt:

“We, the jury having heretofore found the Defendant guilty, as charged in the Information, assess the Defendant’s punishment at a fine of $500 and confinement in the County Jail for 2 years.
/s/ Ronald K. Laster
FOREMAN”

The appellant argues that the word “heretofore” renders the verdict insufficient.

It is well established that a plea of guilty before a jury admits all the elements of the offense. Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942). Where a defendant pleads guilty before a jury, “the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Thus, a plea of guilty before a jury ... is conclusive as to the defendant’s guilt.” Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974).

Therefore, in all cases where a defendant enters a plea of guilty before a jury, no issue of the defendant’s guilt is submitted to the jury. Brown v. State, 507 S.W.2d 235 at 238 (Tex.Cr.App.1974). Thus, since a verdict is “a written declaration by a jury of its decision of the issue submitted to it in the ease,” but the issue of guilt is not submitted to a jury when a defendant has pleaded guilty before it, a jury does not return a verdict of guilt in such a situation. We therefore conclude that the appellant’s contention is utterly without merit and is overruled.

Moreover, it is well established that a verdict will be upheld as sufficient if its meaning can be reasonably ascertained from the words used. Batten v. State, 549 S.W.2d 718 (Tex.Cr.App.1977); Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974). In the present case the intention of the jury is clear. No error is shown. The appellant’s first contention is overruled.

The appellant’s second contention is that the trial judge abused his discretion by allowing the State to reopen after the appellant had rested. The appellant relies on Article 36.02, Vernon’s Ann.C.C.P., which states:

“The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”

On January 7,1977, the appellant entered a plea of guilty. After the State presented its evidence and rested its ease in chief, the defense rested without presenting any evidence. The prosecutor then requested “a short recess in order to process some papers.” The appellant then objected to “the State being allowed to offer any further testimony or evidence for any further purposes in this case other than rebuttal.” The trial judge overruled the objection.

The appellant then stipulated that he was the same Johnny Bruce Brinson in Cause Nos. C721594, C727688ML, C727689ML, C748008IK, and C749761HK. The prosecutor then offered State’s Exhibits 3 through 7, which consisted of the judgments in the above numbered causes, into evidence. The appellant specifically stated that he had no objections to the introduction of State’s Exhibits 3 through 7.

The appellant subsequently stated for the record that since the trial judge had overruled his objection to the State’s reopening he was going to testify in his own behalf. The appellant testified that he had committed the five felony offenses, but he also attempted to explain the sequence in which they occurred and the circumstances surrounding them.

Initially, we note that the appellant failed to object when the prosecutor offered State’s Exhibits 3 through 7 into evidence. Also, the appellant specifically stated that he had no objection to the exhibits when they were offered. See McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975). Nothing is presented for review.

However, even assuming that the appellant had preserved error, we cannot perceive how the trial judge abused his discretion. The appellant had filed his sworn application for misdemeanor probation. The five prior felony convictions were relevant to the issue of whether the jury should recommend probation. The trial judge’s action in allowing the prosecutor to reopen appears to us to have been necessary to a due administration of justice. No abuse of discretion is shown. Appellant’s second contention is overruled.

The appellant’s final contention is that the trial judge, not the jury, was required to assess the appellant’s punishment. The appellant relies upon Article 27.02(7), Vernon’s Ann.C.C.P., which states that:

“Art. 27.02. Defendant’s Pleadings
“The pleadings and motions of the defendant shall be:
* * * * * *
“(7) An election, if any, to have the jury assess the punishment if he is found guilty . . . .”

The appellant’s contention, however, is controlled by Article 27.14, Vernon’s Ann.C. C.P., which states:

“Art. 27.14. Plea of Guilty or Nolo Con-tendere in Misdemeanor
“A plea of ‘guilty’ or a plea of ‘nolo contendere’ in a misdemeanor case may be made either by the defendant or his counsel in open court; in such case, the defendant or his counsel may waive a jury, and the punishment may be assessed by the court either upon or without evidence, at the discretion of the court. In a misdemeanor case arising out of a moving traffic violation for which the maximum possible punishment is by fine only, payment of a fine, or an amount accepted by the court constitutes a finding of guilty in open court, as though a plea of nolo conten-dere had been entered by the defendant.”

Article 27.14, Vernon’s Ann.C.C.P., expressly provides that a defendant or his counsel may “waive a jury.” Thus, since the record does not reflect that the appellant waived his right to trial by jury, the trial judge properly impaneled a jury. See Dickson v. State, 492 S.W.2d 267 (Tex.Cr.App. 1973). No error is shown and the appellant’s third contention is overruled.

The judgment is affirmed.

      . Vernon’s Ann.Civ.St., Article 6701Í-1.

      . Compare the verdict forms used in Batten v. State, 549 S.W.2d 718, 719 (Tex.Cr.App.1977) and Taylor v. State, 549 S.W.2d 722, 723 (Tex.Cr.App.1977).

      . The judgments revealed that the appellant had been convicted of five felony offenses.

      . Due to our disposition of this ground of error, it is unnecessary to address the appellant’s contention that the record must contain proof that the additional evidence “is necessary to a due administration of justice.”

      . Article 27.14, Vernon’s Ann.C.C.P., was recently amended. See Acts 1977, 65th Leg., ch. 858, Section 1, p. 2143. It became effective on June 16, 1977. The trial of this cause was on January 7, 1977.

      . We note that there is no requirement that the waiver comport with the requirements of Article 1.13, Vernon’s Ann.C.C.P., which states:
      “The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him.”
      See Ex Parte Ross, 522 S.W.2d 214, 222, n. 11 (Tex.Cr.App. 1975).

      .There is another reason why this contention must be overruled. By filing his sworn application for probation, the appellant indicated to the court that he desired to have the jury assess punishment. Art. 37.07, Sec. 2(b), Vernon’s Ann.C.C.P.; Palasota v. State, 460 S.W.2d 137 (Tex.Cr.App. 1970); White v. State, 478 S.W.2d 506 (Tex.Cr.App. 1972).
      Contrast Gibson v. State, 549 S.W.2d 741 (Tex.Cr.App. 1977). There the accused filed two written requests specifically asking that the court assess punishment, as well as an application for probation. The trial judge in Gibson specifically overruled the two requests for judicial assessment of punishment.