author: POPE, Justice. DENTON, Justice,

text:
    Nora RAY, Petitioner, v. FARMERS’ STATE BANK OF HART, Texas, Respondent.
    No. B-7649.
    Supreme Court of Texas.
    Jan. 17, 1979.
    Moran & Miller, Dimmitt, Whittenburg Law Firm, Amarillo, Cary Schachter, Amarillo, for petitioner.
    Gibson, Ochsner, Adkins, Harlan & Han-kins, A. B. Hankins and Danny M. Need-ham, Amarillo, for respondent.
   POPE, Justice.

The question presented is whether Mrs. Nora Ray, the drawer, or Farmers’ State Bank of Hart, Texas, the drawee, is liable for the loss occasioned by a check that a third party altered. In a case tried before the court without a jury, Mrs. Ray recovered judgment for $1,850.00, which was the amount of the alteration. The court of civil appeals reversed the judgment and rendered judgment that Mrs. Ray take nothing. 565 S.W.2d 103. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The controlling issue in the case is whether Mrs. Ray was negligent as a matter of law. On May 7, 1975, Mrs. Ray, an eighty-year-old lady, was awakened from a nap by a man who was shaking the screen to her front door. He gave his name as Robert Freeman, said he worked for the utility company, and that he needed to check the electrical system of her home because the power was off along the block. Mrs. Ray testified that when she unlatched the screen to look down the street for a utility vehicle, Freeman pushed his way inside the house. He went around the house placing a device in the electrical outlets and then went outside to check in the garage. While he was outside, as she later discovered, he cut the telephone wire to her house. Upon returning, he told Mrs. Ray that he was not through, but that he was awaiting the arrival of someone else from the utility company. He said that he was going to get a hamburger and would return after lunch, but that she should give him $1.50 for the service charge. Mrs. Ray testified that she could not see what he had done to earn $1.50 but was willing to give him the money to get him out of the house. She reached for her purse, but Freeman picked up her checkbook that was lying on the table telling her that his company required payment by check. He proceeded to fill it in, then shoved it over to her to be signed. She noted to herself that the check was for $1.50 and was in ink so it couldn’t be changed. She signed the check and Freeman left.

After waiting a considerable period of time, Mrs. Ray concluded that Freeman was not going to return. She decided to phone the bank to stop payment on the check because he had not earned the money. She then discovered the phone was dead. Mrs. Ray walked down the street to use a neighbor’s phone but could find nobody at home. About two hours later, when she finally talked to a lady at the bank, she learned that Freeman had cashed the check and that it was for $1,851.50 instead of $1.50.

When Freeman filled out the check at Mrs. Ray’s home, he wrote the figures “1.50” far to the right of the dollar mark, leaving space in which he later added the figures “185”. That made the amount appear as $1,851.50. There is some evidence that he also left space on the next line where he wrote the words “one and 50/100”. He later placed in front of those words, “Eighteen Hundred & Fifty.”

When Freeman presented the check at the bank, the teller required him to produce identification which he did by showing his driver’s license and another identification card that showed his picture. Freeman had endorsed the check and beneath his signature he had stamped the words, “Allied Construction and Commercial-Residential.”

The trial court made a number of findings of fact and also filed conclusions of law. The findings relevant to this appeal are:

la. The Defendant Bank paid the check in question in good faith and in accordance with the reasonable commercial standards of the Bank’s business.
2a. The Defendant Bank paid the check in due course of its banking business.

The relevant “conclusion of law” was that the conditions and circumstances under which Nora Ray signed and delivered the check did not amount to negligence substantially contributing to the material alteration of the instrument as required by Section 8.406 of the Uniform Commercial Code to constitute a defense.

We must begin with article 4.401 of the Code since it sets forth the general rule when a bank may charge an item against a customer’s account. It states that a bank may charge against a customer’s account any item properly payable from that account. Further, the bank may charge the account if it pays in good faith, even though the item has been altered, but only according to the original tenor of the altered item. We are here dealing with an alteration as explained by article 3.407(a)(3) since there were additions to Mrs. Ray’s check. If we look only to these two statutes, the bank had the right to charge Mrs. Ray’s account according to the original tenor of the item —$1.50—because, according to the findings, the bank acted in good faith.

We still need, however, to fit article 3.406 into the scheme of the statutes. That article cuts off rights that a person might have against a holder in due course or against a drawee or other payor who pays an instrument in good faith and in accordance with reasonable commercial standards of the drawee’s or payor’s business. This means that Mrs. Ray would be precluded from asserting the alteration against Farmers’ State Bank if her negligence substantially contributed to the alteration of the check.

In determining whether the bank may charge Mrs. Ray’s account, there are steps that must be taken sequentially. First, the instrument must have been paid in good faith and in accordance with the reasonable commercial standards of the drawee’s business. Second, the person seeking to assert the alteration must be found negligent. Third, the negligence must have substantially contributed to the alteration of the instrument.

It can be concluded that the bank did pay the check in good faith and in accordance with reasonable commercial standards. There was a finding of fact to this effect by the trial court, and there was no dispute concerning this issue before the court of civil appeals. The trial court and the court of civil appeals, however, differ on the question of negligence. The trial court found that Mrs. Ray was not negligent under the circumstances, but the court of civil appeals found negligence as a matter of law.

Official Comment 3 to this section of the Uniform Commercial Code includes this explanation of how negligence is to be determined.

3. No attempt is made to define negligence which will contribute to an alteration. The question is left to the court or the jury upon the circumstances of the particular cases. Negligence usually has been found where spaces are left in the body of the instrument in which words or figures may be inserted.

As a general rule, the determination of negligence is the province of the trier of fact. Exchange Bank & Trust Co. v. Kidwell Construction Co., 463 S.W.2d 465 (Tex.Civ.App.—Tyler), writ ref’d n. r. e. per curiam, 472 S.W.2d 117 (Tex.1971). In determining whether there was any evidence of probative force to sustain the trial judge’s finding, the court of civil appeals was required to consider only that evidence favorable to the finding and the judgment rendered thereon and to disregard all evidence to the contrary. The judgment of a trial court will not be set aside if there is any evidence of a probative nature to support it, and a court of civil appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (Tex.1951).

When viewed in the light most favorable to the trial court’s judgment, we think there is at least some evidence of probative force to support the trial court’s' finding. At most, the evidence is conflicting. Under such circumstances, the trial court’s finding is binding on the court of civil appeals. It is our opinion that the nature of the evidence introduced at trial was such that reasonable minds might differ as to whether Nora Ray was negligent under the circumstances. The court of civil appeals, therefore, erred in reversing the judgment of the trial court and rendering judgment that Nora Ray was negligent as a matter of law. Because of this determination, we do not reach the causation issue.

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

Dissenting opinion by DENTON, J.

CAMPBELL and SPEARS, JJ., not sitting.

DENTON, Justice,

dissenting.

I respectfully dissent. I agree with the Court of Civil Appeals.

      . Although this finding appears among the conclusions of law, the designation is not controlling and we may treat it as a finding of fact. McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016 (1950).

      . §4.401. When Bank May Charge Customer’s Account
      (a) As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft.
      (b) A bank which in good faith makes payment to a holder may charge the indicated account of its customer according to
      (1) the original tenor of his altered item; or
      (2) the tenor of his completed item, even though the bank knows the item has been completed unless the bank has notice that the completion was improper.
      Tex.Bus. & Com.Code Ann. § 4.401 (Tex.UCC).

      . § 3.407. Alteration
      (a) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in
      (1) the number or relations of the parties; or
      (2) an incomplete instrument, by completing it otherwise than as authorized; or
      (3) the writing as signed, by adding to it or by removing any part of it.
      Tex.Bus. & Com.Code Ann. § 3.407 (Tex.UCC).

      . § 3.406. Negligence Contributing to Alteration or Unauthorized Signature
      Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business. Tex.Bus. & Com.Code Ann. § 3.406 (Tex.UCC).


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Frank TERRELL, Petitioner, v. Nellie GRAHAM, Respondent.
    No. B-7906.
    Supreme Court of Texas.
    Jan. 24, 1979.
    Rehearing Denied Feb. 28, 1979.

      Coan & Terrill, Richard D. Coan, Ste-phenville, for petitioner.
    McMillan & Lewellen, Mary E. McCoy and Garry' Lewellen, Stephenville, for respondent.
   BARROW, Justice.

This case involves the construction of reciprocal instruments executed simultaneously by two brothers. E. H. and H. R. Richardson became the co-owners of 121¼ acres of land in Erath County in .1945 with each having an undivided one-half interest. On or about March 10, 1969, they each executed, delivered, and recorded an instrument in the form of a general warranty deed whereby each purported to convey to the other all of the 121¾4 acres with this provision:

“This deed is written under Article 1296 R.C.S. of Texas, and shall take effect and become absolute on my death.”

H. R. Richardson died in 1975, and his will which named Nellie Graham as the sole devisee of his estate was admitted to probate. The property in question was not specifically mentioned in the will. On April 9, 1976, E. H. Richardson and wife, Ollie, executed a deed to Frank Terrell purporting to convey in fee simple the entire 121¼ acres. On February 13, 1976, Nellie Graham brought this suit to construe the two instruments, seeking to quiet her title to an undivided one-half interest in the tract, with alternative pleas for the full title.

The trial court found that no title passed under either instrument and rendered judgment that Nellie Graham is the owner of an undivided one-half interest in the land. The court of civil appeals reversed and rendered judgment that Frank Terrell has fee title to the entire tract burdened with an estate in expectancy in Nellie Graham to an undivided one-half interest, the possession and enjoyment of which is to take effect on the death of E. H. Richardson. 569 S.W.2d 595. Only Terrell complained of this judgment. We reverse the judgments of the lower courts and render judgment that Terrell has fee simple title to the entire tract.

Both parties acknowledge that the two instruments should be considered together and construed as one transaction in that both were executed at the same time, between the same parties and related to the same tract of land. See Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (1959); Rudes v. Field, 146 Tex. 133, 204 S.W.2d 5 (1947); Hendes v. Gale, 376 S.W.2d 922 (Tex.Civ. App.-San Antonio 1964, writ ref’d n.r.e.). Also, in construing these instruments, the primary inquiry of the court is directed to ascertaining the intent of the grantor. Newsom v. Newsom, 378 S.W.2d 842 (Tex.1964); Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608 (1956).

We agree with the conclusion of the court of civil appeals that the instruments are deeds and not ineffective wills. The instruments are in the form of general warranty deeds, they were duly acknowledged before a notary and filed for record as deeds. They were not witnessed as wills nor do they have any indicia of wills. The provision that they would not become absolute until the death of grantor does not make the instruments testamentary in character. Richardson v. Richardson, 270 S.W.2d 307 (Tex.Civ.App.-Dallas 1954, writ ref’d); Turner v. Montgomery, 293 S.W. 815 (Tex.Com.App.1927); Texas Pacific Coal & Oil Co. v. Bruce, 233 S.W. 535 (Tex.Civ.App.-Fort Worth 1921, no writ); Glenn v. Holt, 229 S.W. 684 (Tex.Civ.App.-El Paso 1921, no writ).

A more difficult question is raised as to the legal effect of the deeds. Article 1296 allows estates in futuro to be conveyed in derogation of the common law rule which prohibited such conveyances. Under this statute the grantor conveys the title and interest specified in his deed, but full enjoyment and possession is not had by the grantee until the death of the grantor. Parker v. Blackmon, 553 S.W.2d 623 (Tex.1977); Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297 (1942); Richardson v. Richardson, supra; North v. North, 2 S.W.2d 481 (Tex.Civ.App.-Waco 1927, no writ). The interest conveyed is usually referred to as an “estate in expectancy.”

It is clear under the foregoing authorities that if only one instrument were involved, it would be construed as a deed which effectively passed a present vested interest in the grantee as an estate in expectancy of the undivided one-half interest owned at that time by the grantor. Also, since the deed expressly conveyed by general warranty deed all of grantor’s interest in the land, it effectively passed fee simple title to all interest owned by the grantor at the time of his death when the deed became absolute. Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270 (1942); Gulf Oil Corporation v. Shell Oil Company, 410 S.W.2d 260 (Tex.Civ.App.-Beaumont 1966, writ ref’d n.r.e.). This included the grantor’s own undivided one-half interest in the tract as well as grantor’s expectancy in the other half interest.

We have found no authority which considered the crucial question presented here by the execution of two simultaneous deeds written subject to Article 1296. We believe that our construction carries out the intent of the two brothers that the survivor would own the land in fee and is supported by the foregoing authorities cited regarding a conveyance of an estate in futuro.

Prior to execution of the deeds on March 10, 1969, each brother owned only an undivided one-half fee interest in the land. However, each conveyed to the other by general warranty deed an estate in expectancy to all interest in the land owned by the grantor at the time of his death. Such conveyance left each grantor with a life estate in his undivided one-half interest in the land as well as the estate in expectancy conveyed to him by his brother.

On the death of H. R. Richardson, his deed took effect and became absolute by its terms, thereby vesting all of his interest in the land in E. H. Richardson, including the estate in expectancy which had already been conveyed to H. R. by E. H. at the time the deeds were executed. After the death of H. R., the surviving brother, E. H. owned full fee simple title to the entire tract of land. On April 9, 1976, E. H. Richardson and his wife conveyed this entire interest to Frank Terrell and he became the owner of the land in fee simple.

The judgments of the lower courts are reversed and judgment is here rendered that Nellie Graham take nothing against the defendants, E. H. Richardson and Frank Terrell, and that the said Frank Terrell do have and recover, under his cross-action, title and possession of the full fee simple estate in and to the 121⅛ acres of land.

      . The deed of E. H. Richardson refers to the statute as Article 1996, but this is obviously a clerical error. Article 1296, Texas Revised Civil Statutes Annotated,' provides: “An estate or freehold or inheritance may be made to commence in futuro, by deed or conveyance, in like manner as by will.”


author: TOM G. DAVIS, Judge.

text:
    Charles Vernon PARKER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 57037.
    Court of Criminal Appeals of Texas. Panel No. 3.
    Feb. 7, 1979.
    Jack Hill, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb and Mary K. Ludwick, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of less than two ounces of marihuana. Art. 4476-15, Sec. 4.05(b)(3). The court assessed punishment at one day and a fine of $250.

In a single ground of error, appellant contends that the trial court erred in refusing to grant his motion to suppress.

W. L. Carmack, a Dallas police officer, testified that on May 24, 1976, at approximately 1:45 a. m., he answered a disturbance call at a “strip place” called the Painted Duck on Gaston Avenue in Dallas. As Carmack pulled into the driveway of the Painted Duck, he “noticed a vehicle attempting to leave at a pretty good rate of speed.” When asked whether he stopped the vehicle, he stated, “Yes, the vehicle almost ran into us. . ” The driver, who was identified as the appellant, and a companion were removed from the car. The appellant was, in the officer’s opinion, intoxicated, and he was arrested for public intoxication. The officer testified that the arrest was for public intoxication rather than DWI because the car was stopped before it reached the public street.

Officer Carmack went inside the Painted Duck to answer the disturbance call while another officer who had arrived at the scene, J. N. Stacey, stayed with the appellant and his companion. After returning from the Painted Duck, Carmack searched the interior of the appellant’s automobile and discovered two baggies of what was later identified as marihuana, one under the driver’s seat and another in the console between the two front seats. It appears at the time the search was conducted the appellant and his companion were seated in the backseat of one of the patrol cars at the scene.

In his brief, the appellant argues that the officers had no probable cause to search appellant’s automobile. It is clear from Carmack’s testimony that the appellant’s automobile was leaving the parking lot “at a pretty good rate of speed” and it “almost ran into” the patrol car. This was sufficient probable cause to authorize the initial stop of appellant’s vehicle. When the vehicle was stopped, the officer was in a position where he could properly observe appellant’s intoxication. He was then arrested for the offense of public intoxication.

In Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App.1978), cert. denied, — U.S. —, 99 S.Ct. 637, 58 L.Ed.2d — (1978), this Court was confronted with a case involving the discovery of marihuana after a stop for speeding. Citing Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967), the Court stated:

“Once a bona fide stop or arrest has been made for a traffic offense, the police can make additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of the vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge he may arrest for that offense and incident thereto conduct an additional search for physical evidence.” [Emphasis in the original.]

This Court in Duncantell v. State, supra, also observed:

“It is common knowledge that usage of marihuana, or of a combination of marihuana and alcohol, often results in a form of intoxication.”

In Law v. State, 574 S.W.2d 82 (Tex.Cr.App.1978), the defendant challenged the search of his automobile after his arrest for carrying a handgun. Like the appellant in the instant case, Law had been asked to step out of his car and “was being escorted by the other officer on duty toward the rear of the car . . .” while a search was conducted of the interior of his automobile which disclosed a gun under the front seat. This Court stated:

“Further, if there is probable cause that a motor vehicle contains contraband or the instrumentalities of a crime as there was here, a valid search is not limited to Chimel’s, supra [Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)], ‘area of immediate control’ scope, but embraces the mobile vehicle itself, regardless of the distance of the accused from the vehicle. The factual situation confronting the officers in the instant case established that exigent circumstances existed requiring the officers to proceed to arrest appellant and search the car for weapons without waiting for a warrant. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. U. S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Hooper v. State, Tex.Cr.App., 516 S.W.2d 941; Borner v. State, Tex.Cr.App., 521 S.W.2d 852.”

In Corbitt v. State, 445 S.W.2d 184 (Tex.Cr.App.1969), this Court stated:

“. . . it is well established in this jurisdiction that when the driver of a motor vehicle who has committed a traffic offense appears to be under the influence of an intoxicant the officer has reasonable grounds for searching the car for liquor or drugs. Richardson v. State, 163 Tex.Cr.R. 585, 294 S.W.2d 844; Tabb v. State, 154 Tex.Cr.R. 613, 229 S.W.2d 628; Thompson v. State, Tex.Cr.R., 398 S.W.2d 942; Anderson v. State, Tex.Cr.App., 391 S.W.2d 54; Ybarra v. State, 160 Tex.Cr.R. 487, 272 S.W.2d 374. ‘These searches, however, find their justification in the fact that they were incident to an offense for which the officer had probable cause to arrest, i. e., driving while under the influence of drugs or driving while intoxicated, offenses for which there exists means or instruments of commission.’ Grundstrom v. Beto, supra [D.C., 273 F.Supp. 912].”

In the instant case, it is clear that the initial stop of the appellant was valid. Once the appellant was stopped, the officer observed that he was intoxicated and placed him under arrest for that offense. See Duncantell v. State, supra. Once having placed the appellant under arrest for public intoxication, the arresting officer had probable cause to search the vehicle for intoxicants. Duncantell v. State, supra; Corbitt v. State, supra. The trial court did not err in overruling appellant’s motion to suppress.

The judgment is affirmed.


author: ODOM, Judge.

text:
    Robert Lee ROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 56284.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 25, 1978.
    Rehearing En Banc Denied Nov. 22, 1978.
    Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Bert Graham, Asst. Dist. At-tys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for delivery of heroin; after finding the allegation that appellant had previously been finally convicted of a felony, the jury assessed punishment at forty five years.

Appellant first contends fundamental error is presented by prosecutorial jury argument commenting on his failure to testify. This was the argument and trial objection:

“We have evidence all the way from the police officer to the chemist. The chemist says it is heroin. I don’t know any other way to prove it except by chemical analysis which we have done. The only other way to prove it is to go to the head of the Defendant, himself, who told the police officer, ‘Yes, that is heroin.’ And the police officer said it was heroin.
“[Defense counsel]: I object, Your Honor, to the testimony that he told the police officer it was heroin. That is something for the Jury to determine if this Defendant was the one out there or not.”

There was testimony from the undercover officer that when he purchased the heroin appellant told him it was heroin. The argument was a deduction from the evidence, the objection at trial was not on the ground urged on appeal, and fundamental error is not shown. The ground of error is overruled. Cf. Cox v. State, 523 S.W.2d 695, 699 (Tex.Cr.App.); Wood v. State, 511 S.W.2d 37, 46-47 (Tex.Cr.App.)

In his other two grounds of error appellant raises issues concerning the enhancement allegation and proof. The enhancement paragraph of the indictment alleged:

“And the Grand Jury aforesaid do further present that prior to the commission of the aforesaid offense by the said ROBERT LEE ROOKS, to-wit: on the day of November 5, 1971, in the Criminal District Court of Harris County, Texas, in cause number 156054 on the docket of said court, the said ROBERT LEE ROOKS under the name of ROBERT LEE ROOKS, was duly and legally convicted in said last named court of a felony, to-wit: Burglary with Intent to Commit Theft, upon an indictment then legally pending in said last named court and of which said court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said ROBERT LEE ROOKS, prior to the commission of the offense hereinbefore charged against him as set forth in the first paragraph hereof.”

Appellant argues the allegation is fundamentally defective because there was no Criminal District Court in Harris County in 1971, and he further argues the proof is at fatal variance with the indictment because it shows the prior conviction in cause number 156,054 was had in the 184th District Court of Harris County.

In Corley v. State, 158 Tex.Cr.R. 207, 254 S.W.2d 394, cited by appellant, the Court wrote:

“The evidence introduced in support of the above allegations of the indictment shows that the judgment was rendered and entered and sentence pronounced in said Cause No. 72-AB in Criminal District Court No. 2 of Dallas County, Texas, on the date alleged, and not in the Criminal District Court of Dallas County as alleged.
“The two district courts above named are separate and distinct courts. Arts. 52-1 and 52-8, C.C.P., as amended, Acts 1951, 52nd Leg., p. 663, Vernon’s Ann.C. C.P. arts. 52-1, 52-8.
“Consequently, there was a variance between the allegations in the indictment and the proof. The variance between the allegations as to the district court in which the appellant was previously convicted and the proof is fatal to a conviction. [citations omitted].” See also, Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886.

This case appears to be on point and to support appellant’s position.

In Arce v. State, 552 S.W.2d 153 (Tex.Cr.App.), however, the Court upheld an enhancement paragraph that alleged:

“Before the commission of the primary offense, on January 14, 1975, in Cause No. 79149, in Harris County, Texas, the Defendant was convicted of the felony of unlawful possession of a narcotic drug, to-wit, Heroin.”

And in Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.), the Court upheld proof of a prior conviction for enhancement where the proof showed a different court than that alleged in the indictment, but the county and cause number of the conviction were correct.

The Bray Court distinguished Corley and Morman, by stating that in those cases the counties were multi-district, whereas Falls County, in Bray, had only one district court. As urged by the State, however, Bray could not turn on such a technical distinction. In Arce, supra, the State urged that an allegation of a prior felony designating the cause number and county was sufficient notice to enable the accused to obtain the name and designation of the convicting court. Noting there was no motion to quash, the Court sustained that contention and affirmed the conviction. Of course, the urging of a motion to quash would make no difference if the county and cause number alone are sufficient notice to enable the accused to locate the prior felony conviction alleged. Such reasoning is the underlying basis for Arce, supra, as well as Bray, and we are compelled to conclude that if Bray did not overrule Corley and Morman, which it purported to distinguish, it at least sounded the death knell forewarning their final interment by Arce.

Although Arce was an indictment case and Bray was a variance case, read in tandem they show Corley is no longer viable. If alleging the wrong court but the right county and cause number produces no variance in a single district county, as Bray held, and if alleging no court but only cause number and county is sufficient in a multi-district county, as Arce held, then surely allegation of a wrong court in a multi-district county can neither be fatal nor produce a fatal variance. To hold otherwise would produce pointless and unjustifiable distinctions in the law to befuddle the attentive and trap the unwary. Indeed, the trend in the law regarding allegations of prior convictions has generally been toward a relaxation of the rigid rules of the past. See also, Hernandez v. State, 530 S.W.2d 563 (Tex.Cr.App.); Prodon v. State, 555 S.W.2d 451 (Tex.Cr.App.); Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.); Howell v. State, 563 S.W.2d 933 (Tex.Cr.App.); Hollins v. State, 571 S.W.2d 873 (Tex.Cr.App.). We expressly overrule Corley v. State, supra, and Morman v. State, supra.

The allegations were sufficient and the proof did not constitute a fatal variance. The grounds of error are overruled.

The judgment is affirmed.

      . A second enhancement paragraph was similarly alleged in that case.

      . In Plessinger v. State, 536 S.W.2d 380 (Tex.Cr.App.), a variance in the style of the prior conviction was held not fatal, and to that extent Corley was overruled. We today expressly overrule the holding of Corley.


author: ROBERTS, Judge.

text:
    Jessie W. FRAZIER, Appellant, v. The STATE of Texas, Appellee.
    No. 54797.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 13, 1978.
    Rehearing En Banc Denied Feb. 21, 1979.

      E. K. Peticolas — on appeal only — El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Thomas C. Roepke, Asst. Dist. Atty., El Paso, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery. Upon a plea of not guilty, appellant was convicted by a jury which assessed punishment at five years’ imprisonment.

Appellant urges that the court erred in failing to include in its charge an instruction on the law of circumstantial evidence. We agree and reverse the judgment of conviction.

The record reflects that on March 29, 1976, at approximately 3:45 p. m., Louise Mireles was robbed while on duty as a store clerk at the Qik-N-Eze drive-in grocery in El Paso. Mireles testified that at the robber’s command she placed in a brown paper sack all the money on hand which was a ten-dollar bill, fourteen one-dollar bills, a silver dollar and an unknown amount of mixed change; she surrendered the money-filled sack to the robber who then fled on foot. Because the robber wore a mask during the commission of the offense, Mireles could only describe him to police as a Negro male wearing a short-sleeve medium blue shirt and blue trousers; at no time did Mireles observe the robber’s face.

The evidence further reflects that Officers Fishel and Wiles, within ten minutes after the offense had been reported, and while en route to the scene, observed appellant approximately three-fourths of a mile from the store driving in the opposite direction. Wiles testified that he recognized the license number of appellant’s car as the same as a car involved in another robbery under investigation. For this reason, the officers immediately began pursuit of appellant who, after engaging in several evasive maneuvers, was finally brought to a stop.

Appellant was then taken to the store where he was presented to Mireles for identification. Mireles was able only to identify appellant’s shirt as the shirt worn by the robber; she also identified appellant as being the same height and weight as the robber.

A search of appellant’s person at the police station revealed a brown paper sack containing a ten-dollar bill, fourteen one-dollar bills, a silver dollar and $11.45 in mixed change; also found on appellant’s person was a pair of women’s nylon hose which Mireles later identified as the “mask” worn by the robber.

The State initially contends that any error with respect to the court’s charge was waived because appellant’s objection to the charge did not satisfy the requirements of Article 36.14, Vernon’s Ann. C.C.P.

Article 36.14, supra, provides that objections to the court’s charge shall be presented in writing. Since September 1, 1975, this requirement may be satisfied by dictating objections to the court reporter in the presence and with consent of the court where the subsequent transcript is endorsed with the court’s ruling and official signature. .

Appellant, before the charge was read to the jury, in the presence and with consent of the court, dictated to the court reporter his objection to the court’s failure to instruct the jury on the law of circumstantial evidence. In a signed, written order, the court directed that the reporter’s notes reflecting appellant’s objection and the court’s ruling thereon be made part of the record. Furthermore, without objection by the State, the entire record was approved by the court. We hold that appellant satisfied the requirements of Art. 36.14 and therefore properly preserved the error for review.

In addressing the merits of appellant’s contention, the State argues that this is a direct evidence case, or, in the alternative, that the facts proven are in such “close juxtaposition” as to be equivalent of direct evidence of the main fact to be proved in this case — identity.

We have long adhered to the principle that a charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See Ransonette v. State, 550 S.W.2d 36, 43 (Tex.Cr.App.1976), and authorities cited therein. And since the case of Montgomery v. State, 20 S.W. 926 (Tex.Cr.App.1893), this Court has sought to augment this well-settled principle by imposing what has come to be known as “the close juxtaposition rule,” a flexible rule which basically dispenses with the necessity for a circumstantial evidence instruction where the facts proven are so closely related to the main fact essential to guilt so as to be the equivalent of direct testimony. See also Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971).

Thus, when confronted with a proper request for an instruction on circumstantial evidence, a trial judge should ask the following two questions: (1) Is there any direct evidence of the main fact essential to guilt? (2) If no such direct evidence exists, are the proven facts so closely related to the main fact to be proved so as to be the equivalent of direct evidence? An instruction on circumstantial evidence is not required when either question can clearly be resolved in the affirmative. Hence, the better practice dictates that a properly requested instruction on circumstantial evidence should be given when any degree of doubt exists as to the proper resolution of these two questions.

The distinction between direct and circumstantial evidence is that the former directly demonstrates the ultimate fact to be proved, while the latter is direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proved. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973), and cases there cited. The test is not whether the evidence is more or less probative, or even conclusive, but whether it applies directly or inferentially to the main fact to be proved. See 2 McCormick & Ray, Texas Law of Evidence, Sec. 1481 (2d Ed. 1956). Stated another way, direct evidence is that which directly demonstrates the main fact to be proved, while circumstantial evidence is direct proof of a secondary fact which by logical inference demonstrates the main fact. Crawford, supra. Eiland v. State, 509 S.W.2d 596 (Tex.Cr.App.1974).

In the present case, identity is the main fact essential to guilt. Mireles testified that at no time did she observe the robber’s face. Her identification of appellant was based primarily on the similarity in attire between appellant and the man who robbed her. Thus, the jury was relegated to the process of inference in resolving the issue of identity. Since there was no direct evidence on this issue, a charge on circumstantial evidence would have been appropriate. See Grandison v. State, 514 S.W.2d 763 (Tex.Cr.App.1974); Eiland v. State, 509 S.W.2d 596 (Tex.Cr.App.1974). Cf. McInturf v. State, 544 S.W.2d 417 (Tex.Cr.App.1976).

We next consider whether or not the facts proved were in such close relation to the main fact to be proved — identity—as to be equivalent to direct testimony of that fact. As was stated in dissent in Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971):

“There is a difference between facts being in such a juxtaposition to warrant an inference of guilt and facts being in such a juxtaposition as to be equivalent to direct testimony. The former, no matter how strong they are or how certain is the guilt of the accused, cannot justify a failure to charge on circumstantial evidence. The latter set of facts will occur only where the evidence is such that it is logically and practically the virtual same thing as direct evidence of the factum probandum.” Id. at 846.

In Riggins v. State, supra, the accused was found asleep in his car parked by the curb in front of a burglarized jewelry store with the stolen jewelry. No one saw him enter the store. Someone had vomited in the store’s broken glass on the sidewalk and there was vomit in the car. Vomit also led to the car. The Court held that the facts proved were in such close juxtaposition, or in such close relation, to the breaking and entry as to be equivalent to direct evidence and a charge on circumstantial evidence was not required.

Riggins, supra, is distinguishable from the present case in that circumstances connecting the defendant with the breaking and entering were much stronger than those connecting appellant with the robbery in the present case. See and compare Coleman v. State, 530 S.W.2d 823 (Tex.Cr.App.1975).

The State contends the facts of the present case are equivalent to direct testimony that appellant in fact committed the robbery, viz: (1) appellant attempted to evade officers who first observed him within ten minutes after the offense and approximately three-fourths of a mile away; (2) Mireles identified appellant’s shirt as the same shirt worn by the man who robbed her; (3) Mireles testified that appellant was generally the same height and build as the man who robbed her; and (4) on appellant’s person was found the recently stolen property and mask used to commit the offense.

While these circumstances may have been sufficient to support a finding of guilt, we hold that these facts clearly are not the equivalent of direct evidence of guilt. Even though the State’s evidence may lead to the almost irresistible conclusion that appellant was guilty, and although the circumstances indicating guilt are compelling, if the case is based on inference and reasoning therefrom the court must charge on circumstantial evidence. Draper v. State, 513 S.W.2d 563, 565 (Tex.Cr.App.1974). The court’s failure to do so in the present case was reversible error.

The judgment is reversed and remanded.

ODOM, J., dissents.


author: ONION, Presiding Judge. DALLY, Judge, DOUGLAS, Judge,

text:
    E. L. FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 53310
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 20, 1978.
    Rehearing En Banc Denied Feb. 21, 1979.
    Melvin Gray, San Angelo, for appellant.
    George R. Killam, Jr., County Atty., Snyder, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the misdemeanor offense of driving a motor vehicle upon a public highway while intoxicated. The jury assessed punishment at three days in the county jail and at a fine of $100. The jury recommended that the jail time be probated. The court thus placed the appellant on misdemeanor probation for six months and ordered the fine paid by March 1, 1976 as a condition of probation.

The question that immediately arises is whether the jury is permitted to recommend misdemeanor probation as to the jail time but not as to the fine. The court’s charge at the penalty stage of the trial correctly instructed as to the penalty for driving while intoxicated, and did not authorize the jury to recommend probation as to one type of penalty and not the other, but the printed verdict form with appropriate blanks did appear to authorize the jury to recommend probation as to one type of penalty and not as to the other. The verdict returned was as follows:

“We, the Jury, having heretofore found the Defendant guilty of driving and operating a motor vehicle upon a public highway while under the influence of intoxicating liquor in the County of Scurry and State of Texas, as charged in the information, now assess his punishment for said offense at confinement in the county jail for three (31 davs and by a fine of $100.00. and we further find that the Defendant has not been under probation in the preceding five years, and we recommend to the court that the
Jail time
(You inserting ‘Jail time’ OR ‘Fine’ OR ‘Jail time and fine’)
assessed against the defendant in this case be probated.
“/s/ Leslie O. Albin
Foreman of the Jury”

Only recently we were confronted with the same question here and the same type of verdict form as used in the instant case in Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977). After reviewing Article 42.13, V.A.C.C.P., and prior decisions, the court wrote:

“In authorizing the jury to probate either the fine or the jail time and to exact from the appellant that portion of the penalty not probated, the court fell into error. Article 42.13, supra, does not contemplate such procedure. The jury may recommend probation or not, but if it recommends probation then the penalty assessed, whether fine, jail time or both a fine and jail time, must be probated. The statute expressly provides that where misdemeanor probation is granted no judgment is to be entered and the finding of guilt is not to become final except upon revocation. And this court has held that judgments and sentences entered in misdemeanor cases prior to revocation are nullities. Lee v. State, supra; Coby v. State, supra. The statute did not intend that a judgment and sentence disposing of a part of the penalty assessed be entered and the remaining penalty be probated. If this was not so then upon successful completion of probation the accusation, complaint, information or indictment would be dismissed and the finding of guilty may not be considered for any purpose except to determine his future eligibility for probation, see Section 7 of Article 42.13, supra, yet there would still be outstanding judgment and sentence as to part of the penalty assessed which was exacted from the defendant. This is not what Article 42.-13, supra, intended.”

The dissent would overrule Taylor and other recent cases interpreting Article 42.-13, supra, and would hold that where the court instructs a jury in a misdemeanor case it has the authority to order payment of all or part of any fine assessed by the jury as a condition of probation, the jury in its role of assessing punishment may probate any jail time assessed but not any part of the fine assessed. And this would be true even though the jury was impaneled for the very purpose of assessing the punishment and passing upon the issue of probation.

Where would such a ruling as urged by the dissent lead us?

Under the circumstances of a case where only a fine is assessed and probation is recommended by the jury but the jury was instructed as to the court’s authority to require payment of all or a part of a fine, then the jury’s verdict may be altered and in effect set aside by the trial judge because the defendant could be required to pay all or a part of the fine imposed prior to the carrying out of the recommendation of the jury as to probation. The trial judge would have the same power to alter the jury s verdict, to a lesser degree, where the fine is only a part of the punishment assessed.

If a jury concludes that a fine with a recommendation of probation is the appropriate punishment in a case, they may well assess jail time instead to prevent their recommendation of probation from being circumvented. This is so because if the full punishment assessed is a fine and that is exacted in full as a prerequisite to probation, is not the jury’s recommendation rendered meaningless? And under such circumstances, would not the subsequent requirement after paying the fine in full of being subject to the conditions of probation be a more severe penalty than that imposed by the jury? If, under these circumstances, probation is later revoked, what penalty would then be required of the defendant considering the provisions of Article 42.13, § 3(b), supra?

It should also be remembered that where probation is granted pursuant to Article 42.13, supra, no judgment is even entered. If an assessed fine or part thereof is collectable under the circumstances described, the punishment assessed, or a part thereof, is exacted without a judgment or sentence being entered and without the conviction being final. Cf. Article 42.15, V.A.C.C.P., as amended 1971.

Suppose the full fine, which is the only punishment, is exacted and the defendant is placed on probation and satisfactorily completes probation. What happens then? Is the fine collected without benefit of judgment or sentence remitted to the defendant?

Article 42.13, § 7, V.A.C.C.P., reads:

“(a) When the period and terms of a probation have been satisfactorily completed, the court shall, upon its own motion, discharge him from probation and enter an order in the minutes of the court setting aside the finding of guilty and dismissing the accusation or complaint and the information or indictment against the probationer.
“(b) After the case against the probationer is dismissed by the court, his finding of guilty may not be considered for any purpose except to determine his entitlement to a future probation under this Act, or any other probation Act.” (Emphasis supplied.)

Surely, in addition to all these problems, the Legislature did not intend to authorize a trial judge to circumvent and usurp a jury’s verdict at his own whim or to exact punishment before the conviction is final. This would be an absurdity.

The guarantee of the right to trial by jury contained in the Sixth Amendment, United States Constitution, is made applicable to the states by virtue of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Article I, § 10 of the State Constitution, provides that in all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. Since this constitutional provision applies to all criminal prosecutions, the defendant in a misdemeanor case has the same right of trial by jury as in felony cases. 35 Tex.Jur.2d, Jury, § 12, p. 49.

Article I, § 15 of the State Constitution, also provides:

“The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. . . . ”

In response thereto the Legislature has from time to time enacted laws pertaining to trial by jury. While the federal and state constitutional right to trial by jury does not include the right to have the jury assess punishment, the Texas Legislature, pursuant to Article I, § 15 of the State Constitution, has enacted Article 37.07, V.A. C.C.P., which authorizes a defendant to request a jury to pass on punishment and the issue of probation.

In the concurring opinion in Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972), it was written at p. 416:

“In 57 Tex.Jur.2d Trial § 393, p. 28, it is written:
‘A jury in criminal proceedings must assess in their verdict the punishment intended to be imposed on the defendant, where it is not otherwise fixed by law. Under these circumstances assessment of punishment is exclusively within the province of the jury . . .’
“At least, prior to the enactment of Article 42.13, supra (the Misdemeanor Probation Law), it was fundamental that a trial judge did not have authority to receive a jury’s verdict and then refuse to abide by it. Hardy v. State, 159 Tex.Cr.R. 54, 261 S.W.2d 172 (Tex.Cr.App.1953), and cases there cited.
“In Champion v. State, 113 Tex.Cr.R. 172, 19 S.W.2d 63, 65 (Tex.Cr.App.1929), this court said:
‘. . . The proposition that the court cannot receive a verdict, discharge the jury, and thereafter change the verdict in any material part, has been often affirmed by this court, and is in accord with its uniform holdings.
“And similar to the instant case, it has been held that the trial court may not receive a verdict and give effect to part of it and ignore some other part and enter another and different judgment from that called for by the jury’s verdict. Combes v. State, 162 Tex.Cr.App. 482, 286 S.W.2d 949 (1956); King v. State, 135 Tex.Cr.R. 71, 117 S.W.2d 800 (Tex.Cr.App.1938). Nor may the court receive the verdict and go beyond it in enlarging the judgment thereon, since the judgment must follow the verdict. See, Cagle v. State, 147 Tex.Cr.R. 140, 179 S.W.2d 545 (Tex.Cr.App.1944). Also, Baker v. State, 70 Tex.Cr.R. 618, 158 S.W. 998 (Tex.Cr.App.1913); Luttrell v. State, 116 Tex.Cr.R. 277, 31 S.W.2d 818 (Tex.Cr.App.1930). The variance is material where it appears that the judgment imposes a more severe penalty than that assessed by the verdict. Rivers v. State, 10 Tex.App. 177 (Ct. of App. 1881).
“Castro v. State, 118 Tex.Cr.R. 53, 42 S.W.2d 779 (Tex.Cr.App.1931), held void the court’s action in disregarding (upon the State’s motion) the recommendation of the jury that the sentence be suspended. There the court held such action violates the
‘. . . fundamental principle that the judge presiding over a trial has no right and no power to change a verdict rendered by the jury unless with their consent and before their discharge. The right of the accused, under such circumstances, to have the judgment follow the verdict, if formal and agreeable to the issues submitted, is absolute. The impotency of the trial court or the judge presiding, at the instance of the state, to nullify a verdict, responsive to the evidence and issues, which accords the accused the suspended sentence is supported, it is thought, by the cases mentioned above and by the principles governing the decision of this court in the case of Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162, 41 L.R.A. (N.S.) 1144, in which the original suspended sentence law conferring upon the trial judge authority inconsistent with the finality of a verdict of the jury was denounced. . . . ’ 42 S.W.2d at 781.”

If Article 42.13, supra, can be interpreted as permitting the court to require the payment of all or a part of the fine assessed in order to obtain the benefit of the jury’s recommendation as to probation, then serious questions of due process and due course of the law of the land, Article I, § 19, Texas Constitution, are raised. The dissent’s argument is not persuasive.

For the reasons stated in Taylor v. State, supra, the judgment is reversed and the cause is remanded.

DALLY, Judge,

concurring.

Both the majority and dissenting opinions attempt to deal in an indirect manner with Art. 42.13, Sec. 8, V.A.C.C.P., the provisions of which cannot be satisfactorily reconciled.

Sec. 3(b) provides that if a jury recommends probation, the court must grant the defendant probation; yet the same sentence provides that a defendant must first meet the requirements of Sec. 3(a)(4) that the court believe the ends of justice and the best interest of society and of the defendant will be served by granting the defendant probation. This permits the court to override the jury’s recommendation to grant probation in any case in which the court feels the best interest of society and the defendant will not be served by granting probation. Also, it appears that even when a jury recommends probation of a fine, the recommendation is not binding on the court because Sec. 3(a)(3) permits the court to override a jury recommendation to probate the fine.

It is obvious to me that the legislature intended that a court be bound by a jury’s recommendation to grant misdemeanor probation and intended that the jury could recommend probation of either a fine or imprisonment, or both. Therefore, since the provisions of the statute are in conflict, I would reconcile that conflict by holding that if a defendant satisfies the requirements of Sec. 3(aXl) and (2), and the jury hearing the defendant’s case recommends probation, the court must grant probation and that the trial court cannot override the jury’s recommendation in any way, such as assessing a fine as a condition of probation. If this is not what the legislature intended, it can make its intention clear in its next session.

I concur in the result reached by the majority.

ROBERTS and W. C. DAVIS, JJ., join in this opinion.

DOUGLAS, Judge,

dissenting.

The question presented is whether the jury is permitted to recommend misdemeanor probation as to one type of penalty and not as to the other under Article 42.13, V.A.C.C.P.

At the penalty stage of the trial the court correctly instructed the jury on the penalty applicable to driving while intoxicated and on the law of misdemeanor probation. The verdict form submitted to the jury and the verdict are as follows:

“We, the Jury, having heretofore found the Defendant guilty of driving and operating a motor vehicle upon a public highway while under the influence of intoxicating liquor in the County of Scurry and State of Texas, as charged in the information, now assess his punishment for said offense at confinement in the county jail for three (3) days and by a fine of $100.00 and we further find that the Defendant has not been under probation in the preceding five years, and we recommend to the court that the Jail Time (You inserting ‘Jail time’ OR ‘Fine’ OR ‘Jail time and fine’) assessed against the defendant in this case be probated.
/s/ Leslie O. Albin
Foreman of the Jury”

Article 42.12, Section 3a, V.A.C.C.P., as amended, dealing with felony probation, provides in part:

“. . When the jury recommends probation, it may also assess a fine applicable to the offense for which the defendant was convicted. . . . ”

No such provision is contained in Article 42.13, supra, which governs misdemeanor probation. This article provides, in part:

“Sec. 3(a) A defendant who has been found guilty of a misdemeanor wherein the maximum permissible punishment is by confinement in jail or by a fine in excess of $200.00 or by both such fine and imprisonment may be granted probation if:
“(1) he applies by written motion under oath to the court for probation before trial;
“(2) he has not been granted probation nor been under probation under this Act or any other Act in the preceding 5 years; provided that the court may grant probation regardless of the prior probation of the defendant, except for a like offense within the last 5 years; “(3) he has paid all costs of his trial and so much of any fine imposed as the court directs; and
“(4) the court believes that the ends of justice and the best interests of society and of the defendant will be served by granting him probation.
“(b) If a defendant satisfies all the requirements of Section 3(a)(1), (2), (3) and (4) of this Article, and the jury hearing his case recommends probation in its verdict, the court must grant the defendant probation. .
“Sec. 5(a) The period and terms of probation shall be determined by the court granting it. Except as provided in Subsection (d) of this section, a probationer is under the supervision of the court granting him probation.
“(b) The period and terms of probation shall be designed to prevent recidivism and promote rehabilitation of the probationer. The terms must include, but are not limited to, the requirement that a probationer:
U * * *
“(8) pay his fine, if the court so orders and, if one be assessed, in one or several sums, and make restitution in any sum that the court shall determine not to exceed One Thousand Dollars ($1,000): . . (Emphasis Supplied).

Heretofore our interpretation of these provisions in relation to the question presented in the instant case has been somewhat confusing and of little value to the trial courts. Johnson v. State, 473 S.W.2d 939 (Tex.Cr.App.1971), involved a misdemeanor conviction for driving while intoxicated. The jury in that case was instructed that they could probate either the jail time or the fine. But the court authorized them in completing the verdict form in the instructions to recommend probation for “Jail time and Fine.” After receiving the charge the jury sent the court a note in which it inquired: “If the sentence is probated is the fine also probated?” The court responded by referring them back to the charge.

The jury then assessed the punishment at six months in jail and a $300 fine and recommended that both be probated. The court probated the jail term but ordered defendant to pay the fine.

On appeal, we held that when the court accepted the verdict and acted upon it he should have followed its terms. We reasoned that the jury “should not be kept in the dark any more than our decisions now require . . . . [W]e should not add more blindfolds by instructing them with charges that the jury can grant probation for the part of the punishment assessing a fine when that part of their verdict will not be followed (footnote omitted).” 473 S.W.2d at 941.

We did not hold in Johnson that the trial court cannot require payment of a fine when the jury recommends probation. That case turned on the point that the court will be estopped, in effect, from failing to follow the jury recommendation of probation where they are misled by the court into believing that any fine assessed by them will be probated.

In Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972), the conviction was for unlawful possession of a dangerous drug. During the deliberations at the punishment stage of the trial, the jury asked the court whether defendant would have to pay a fine in a lump sum. Apparently the court did not respond. The jury then assessed the punishment at a fine of $1,250 and recommended probation. The court ordered that defendant pay $500 of the fine as a condition of probation and probated the remainder.

Defendant contended on appeal that the trial court erred in ordering that a portion of the fine be paid. In reliance on Johnson v. State, supra, we agreed and reformed the judgment to show that the entire fine was probated.

In his concurring opinion in Faugh, Presiding Judge Onion observed that the majority opinion and the opinion in Johnson had inferred, without so holding, that if the jury knew what action the court contemplated as to the requirement of the payment of all or part of the fine as a condition of probation no error would be presented. He expressed the view that where the jury has the right to recommend probation under Article 42.13, supra, such recommendation is mandatory and binding upon the trial court.

The express language of the statute is contrary to that reasoning. Article 42.13, Section 3(b), provides that a jury’s recommendation of probation is binding upon the court only if defendant has satisfied all of the requirements of Section 3(a). Among those requirements are that defendant has paid all costs of his trial and so much of any fine imposed as the court directs. Section 3(a)(3), supra. The court may order that all or part of such a fine be paid as a condition of probation. Section 5(b)(8), supra.

The statute imposes the conditions of probation set forth in Section 5(b). It follows that where the court instructs the jury of his authority to require payment of all or part of any fine as a probationary condition, they are authorized to probate the jail time but the probation is not binding on the court when proper instructions have been given. Where the court misleads the jury as to his authority in this regard, as occurred in Johnson, the jury’s recommendation of probation of the fine is binding upon the court for the reasons stated in that case. But where the court properly instructs the jury as to his authority to order payment and the jury recommends probation of the fine, such recommendation is advisory only upon the court.

Article 42.13 provides the court with no authority to order defendant to serve any of the jail time as a condition of probation. Thus, the jury’s recommendation of probation as to the jail time is always binding upon the court.

In Judge Onion’s concurring opinion in Faugh, he expressed concern that permitting the court to order payment of the fine as a condition of probation even though the jury recommended probation of the fine would violate defendant’s constitutional right to a jury trial. He reasoned that defendant is entitled to have his punishment assessed by the jury in a misdemeanor case whether the plea be “guilty” or “not guilty.”

That argument is contrary to the rule that the constitutional right to trial by jury does not encompass the right to have the jury assess punishment. Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972); Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970).

When a defendant asks for probation, he seeks to come under the provisions of the statute which provide that the judge may require, upon conviction, the payment of the fine and costs. Where the court instructs the jury in a misdemeanor case that he has the authority to order payment of all or part of any fine assessed as a condition of probation, we should hold that the jury is authorized to probate jail time and the fine, but the recommendation as to probation of the fine is advisory only.

Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977), involved a misdemeanor conviction for driving while intoxicated. In Taylor, we held that the trial court erred in authorizing the jury to probate either the fine or the jail time and to exact from defendant that portion of the penalty not probated. We stated that the jury “may recommend probation or not, but if it recommends probation then the penalty assessed, whether fine, or jail time or both a fine and jail time, must be probated. . . ” 549 S.W.2d at 724.

Taylor, Oliva v. State, 500 S.W.2d 144 (Tex.Cr.App.1973); Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1974), and Batten v. State, 549 S.W.2d 718 (Tex.Cr.App.1977), should be overruled to the extent they are contrary to Article 42.13, V.A.C.C.P.

Applying these principles to the instant case, the court’s instructions to the jury contain no reference to his authority to order payment of any fine assessed. However, the error in failing to give such an instruction was harmless under these circumstances. This Court should hold that since the jury did not recommend probation of the $100 fine, the court could have ordered it to be paid as a condition of probation in any event. See Article 42.13, Sections 3(a)(3) and 5(b)(8), supra.

The jury verdict does not always have to be followed in felony cases. Under Article 42.12, Section 3, V.A.C.C.P., if a jury denies probation, a judge may grant probation. He is not bound to follow the verdict in felony cases, and under Article 42.13, supra, he is not bound to probate the fine when the verdict is silent as to probation.

The record reflects that appellant was placed on probation on February 2, 1976, at which time he filed a written notice of appeal. The court ordered that the fine be paid on or before March 1,1976. Appellant paid his fine and costs on February 27,1976. The appeal is not moot. See Cody v. State, 548 S.W.2d 401 (Tex.Cr.App.1977).

We should follow the statutes as written and not be controlled by what individual judges are accustomed to or what each thinks the law ought to be.

No reversible error having been shown, the judgment should be affirmed.

ODOM and VOLLERS, JJ., join in this dissent.

      . Lee v. State, 516 S.W.2d 151 (Tex.Cr.App.1974).

      . Coby v. State, 518 S.W.2d 829 (Tex.Cr.App.1975).

      .The dissent recognizes that there were no jury instructions as to the court’s authority in the instant case, but would hold such failure to instruct to be harmless error.

      . Article 42.13, V.A.C.C.P., is not and has never been a well drafted statute. Hopefully someday the Legislature will see fit to have one statute dealing with both felony and misdemeanor cases where the rules and procedure can be as similar as possible.

      . Art. 42.13, Sec. 3(a) and (b), V.A.C.C.P., reads as follows:
      “(a) A defendant who has been found guilty of a misdemeanor wherein the maximum permissible punishment is by confinement in jail or by a fine in excess of $200.00 or by both such fine and imprisonment may be granted probation if:
      “(1) he applied by written motion under oath to the court for probation before trial;
      “(2) he has not been granted probation nor been under probation under this Act or any other Act in the preceding 5 years; provided that the court may grant probation regardless of the prior probation of the defendant, except for a like offense within the last 5 years;
      “(3) he has paid all costs of his trial and so much of any fine imposed as the court directs; and
      “(4) the court believes that the ends of justice and the best interests of society and of the defendants will be served by granting him probation.
      “(b) If a defendant satisfies all the requirements of Section 3(a)(1), (2), (3) and (4) of this Article, and the jury hearing his case recommends probation in its verdict, the court must grant the defendant probation. The court may grant the defendant probation regardless of the recommendation of the jury or the prior conviction of the defendant, except for a like offense within the last five years. The court may, however, extend the term of the probationary period to any length of time not exceeding the maximum time of confinement allowed by law. In the event the probation is revoked in accordance with Section 6, the judgment of the court shall not prescribe any penalty in excess of that imposed by the jury.”


text:
    John Edward RUSH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55688, 55689.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 20, 1978.

      Marvin 0. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Robert Bennett, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

These are appeals from convictions for gambling promotion (V.T.C.A., Penal Code Sec. 47.03) and communicating gambling information (V.T.C.A., Penal Code Sec. 47.05). After a trial before the court punishment was assessed at five years in each case and appellant was placed on probation.

In several grounds of error appellant challenges the sufficiency of the evidence, the sufficiency of the indictments, and the lawfulness of the search warrant under which certain incriminating evidence was seized. He also contends his convictions for these two offenses violate the constitutional prohibition against double jeopardy.

As a groundwork for discussion of the indictment, jeopardy, and sufficiency of the evidence issues, we will first set out the statutory provisions upon which these prosecutions were based.

V.T.C.A., Penal Code Sec. 47.03 provides in part:

“(a) A person commits an offense if he intentionally or knowingly does any of the following acts:
“(2) receives, records, or forwards a bet or offer to bet; . . . ”

The indictment charging a violation of this provision alleged that appellant:

“. . . on or about August 5, 1974, did then and there unlawfully knowingly and intentionally receive and record a bet by Andrew William Pritchett said bet having been made by S. D. Plaster to the said Andrew William Pritchett and said Andrew William Pritchett communicating the bet to John Edward Rush on baseball games. . . . ”

V.T.C.A., Penal Code Sec. 47.05 provides in part:

“(a) A person commits an offense if, with the intent to further gambling, he knowingly communicates information as to bets, betting odds, or changes in betting odds or he knowingly provides, installs, or maintains equipment for the transmission or receipt of such information.”

The indictment charging a violation of this provision alleged that appellant:

“. . . on or about August 5, 1974, did then and there unlawfully knowingly and intentionally communicate information as to bets, betting odds and changes in betting odds on baseball games to Andrew William Pritchett with the intent then and there to further gambling.”

There was no motion to quash either indictment, and the language used in each effectively tracks the language of the respective statutory provisions. We find no fundamental error and accordingly overrule the grounds of error. Cf. American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598.

We now turn to a review of the evidence presented. The State presented three witnesses, all officers of the Houston Police Department. The defense presented no evidence.

Officer Plaster testified first. After relating his initial undercover operation at the Seventeen-Eighteen Lounge during which he gained sufficient familiarity with Andrew Pritchett, the bartender, to be able to place bets with him on various sporting events, he told of what happened on Monday, August 5, 1974. On that afternoon he went to Pritchett to place bets. In Plaster’s presence and immediate view, at 5:00 p. m., Pritchett called 665-9390 and asked for the line, or betting odds, on baseball games. Pritchett wrote this list down and gave it to Plaster. After examining the list and making his choices, Plaster wrote down his bets on four games and gave the list to Pritchett. At 5:15 p. m. Pritchett again in Plaster’s presence called 665-9390 and placed the bets. Plaster kept the line sheet and bet list, and they were introduced at trial as State’s Exhibit 1.

From earlier events in the investigation Plaster had learned that 665-9390 was the number being used in the gambling operation, and had also learned that this number served a pay phone at a used car lot run by appellant and located at 5500 Kirby Drive in West University Place, Harris County. On August 2 he had visited the car lot and talked with appellant under the pretense that he wanted to buy a car for his sister. While there he saw the phone with number 665-9390, and by the phone he saw baseball line sheets and bet sheets. He also on that day saw appellant answer the phone two or three times, and on one occasion appellant picked up a sheet of paper and read off figures to the person on the other end.

On August 5, while Plaster was placing bets with Pritchett, officer Steffenhauer, the State’s second witness, was observing appellant at the used car lot at 5500 Kirby. From his vantage point he saw appellant answer the telephone at 5:00 p. m. and again at 5:15 p. m.

Three days later, on August 8, officer Jenkins, the State’s last witness, executed a search warrant at the used car lot office on 5500 Kirby. When he arrived appellant was seated at the desk in the office. Seized were numerous line sheets, betting slips, and tally sheets, which were introduced as State’s Exhibits 4, 5 and 6. Among those papers were a line sheet that listed the teams on the line sheet in State’s Exhibit 1, with corresponding odds, and a betting slip with the same bets placed by Plaster through Pritchett, and bearing the name Andy, the name under which Plaster’s bets were placed, and the day Monday, the day on which Plaster’s bets were placed.

The sufficiency of the evidence must be reviewed in the light most favorable to the determination made by the finder of fact. Va lore v. State, Tex.Cr.App., 545 S.W.2d 477. Doing so, we see that Plaster saw Pritchett call a known number at 5:00 p. m. on August 5 and receive gambling information, while Steffenhauer at the same time saw appellant answer that phone. Fifteen minutes later Plaster again saw Pritchett call the same number and place his bets, while Steffenhauer saw appellant answer the phone. Three days later, at the execution of the search warrant at appellant’s premises, he was found seated at the desk on which were found a line sheet and a betting slip corresponding to those communicated to and from Pritchett on the phone calls of August 5. We conclude the evidence is sufficient to show appellant communicated information as to betting odds with the intent to further gambling during the 5:00 p. m. phone call, and to show he received and recorded a bet on baseball games as alleged, from information received in the 5:15 p. m. phone call. The grounds of error challenging the sufficiency of the evidence are overruled.

In his grounds of error invoking the double jeopardy clause appellant argues these two convictions were based on one transaction. The evidence is otherwise. The communication of gambling information, constituting an offense under Sec. 47.-05, supra, was completed with the 5:00 p. m. phone call. The receiving and recording of Prichett’s bet, constituting the offense of gambling promotion under Sec. 47.03, supra, was committed in conjunction with the 5:15 p. m. phone call. The two offenses were separate and distinct both in fact and in law. No violation of the jeopardy clause occurred. These grounds of error are overruled.

In his remaining ground of error appellant contends the trial court erroneously overruled his motion to suppress evidence seized at the used car lot on August 8 pursuant to a search warrant. He argues that the warrant does not sufficiently identify the place to be searched and the affidavit does not state sufficient probable cause.

The search warrant ordered a search of the office of Johnny Rush’s used car lot at “5500 Kirby, in West University, Harris County, Texas,” and the seizure of gambling paraphernalia, line sheets, and recorded bets believed to be there. The affidavit recited, inter alia, that on August 2 officer Plaster visited Johnny Rush’s office at 5500 Kirby and while there he observed a line sheet for baseball games and a number of recorded baseball bets.

We conclude the observations of Plaster on August 2 were alone sufficient to show probable cause for issuance of the warrant, and need not consider appellant’s assertions regarding the sufficiency of other portions of the affidavit.

On the matter of the sufficiency of the description of the premises to be searched, appellant relies on testimony that the actual address was 5500 Kirby Drive instead of 5500 Kirby, and that the community was West University Place instead of West University. It was also shown that there is no municipality in Harris County known only as West University, and that in the southern part of the county there is a Kirby Street.

Appellant relies on Ervin v. State, 165 Tex.Cr.R. 391, 307 S.W.2d 955. In that case a search warrant described the premises to be searched as “a private residence located at 611 Ute St. in the city of Lubbock, Lubbock Co., Texas * * * and being the premises occupied by, in charge of and under the control of person or persons whose name or names and whose description or descriptions ae [sic] unknown to the affi-ants.” The Court reversed after finding that the house searched:

“(1) had no number on it; (2) was not in the City of Lubbock, and (3) had it been numbered in accord with the system used in the City of Lubbock it could not have been 611 Ute Street, or any other odd number; that (4) properly numbered, 611 Ute Street was a vacant lot.”

The Court also observed, however, “Had the warrant and affidavit alleged that appellant occupied the premises a different rule might well be applied.”

In Guzman v. State, Tex.Cr.App., 508 S.W.2d 375, on the other hand, a challenge to the sufficiency of the description of premises to be searched was rejected and the conviction was affirmed. The search warrant there described the residence to be searched as, “a one-story white frame building situated in the city of Houston, Harris County, Texas, located at 7307 Avenue ‘L’.” On arrival the officers found a lot with two houses. One, an unpainted house, was numbered 3707. The other was a white frame house and numbered 3709. The white frame house was searched. The Court stated:

“Under the circumstances, if no further description of the house to be searched had been given, other than its number, a more serious question would have been presented. However, the executing officers were entitled to rely upon the entire description given in the warrant.”

We conclude the description in the warrant in the instant case was sufficient. The premises were described as the office of Johnny Rush’s used car lot at 5500 Kirby in West University, Harris County, Texas. The premises searched were the office of Johnny Rush’s used car lot at 5500 Kirby Drive in West University Place, Harris County, Texas. The officers were entitled to rely on the entire description in the warrant. Although there is a Kirby Street elsewhere in the county, it is not near West University Place, and the record contains no indication that there is an office of Johnny Rush’s used car lot at 5500 Kirby Street, or that there even is such an address as 5500 Kirby Street. The ground of error is overruled.

The judgments are affirmed.


author: ONION, Presiding Judge.

text:
    Jesse R. FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 56741.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 20, 1978.
    Rehearing En Banc Denied Feb. 21, 1979.

      Eugene H. Lieck, San Antonio, Antonio G. Cantu, on appeal only, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Gordon V. Armstrong, Lawrence J. Souza and Roy R. Barrera, Jr., Asst. Dist. Attys., San Antonio, for the State.
   OPINION

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

ONION, Presiding Judge.

This is an appeal from a conviction for murder, wherein the jury assessed punishment at life imprisonment.

Appellant’s counsel on appeal has raised several grounds of error, but in view of our disposition of the case only one of them will require discussion. That ground of error alleges in substance that appellant was denied effective assistance of counsel at trial.

The record reflects that appellant was involved in a shooting incident which resulted in a charge of murder being brought against him. On April 9, 1976, an attorney was appointed to represent him after it was found by the court that he was too poor to employ counsel. Also at that time, the trial was docketed for August 16, 1976.

The appointed counsel testified at the trial and at the hearing on the motion for new trial that on April 21, 1976, after he had completed some legal research on the case and had his initial interview with appellant, he filed a motion for the court to have an investigator appointed to assist him. On the same day, in accordance with the usual practice in Bexar County at the time, the court appointed a specific investigator to assist appellant’s counsel. On the following day, appointed counsel telephoned the investigator and was promised some information in the case in ten days and a thorough investigation after that. About three months later, after receiving nothing at all from the investigator, appointed counsel on July 8, 1976, wrote to the appointed investigator requesting a complete written report. No response was received to this request and on or about the first day of August appointed counsel was able to reach the investigator by telephone and was promised that he would have a full report prior to the trial on August 16. No report was ever received by counsel.

Just prior to the trial commencing, appointed counsel requested a delay for one week, stating, “If the man (the appointed investigator) can’t get it done I will get somebody to do it and pay it out of my pocket. But, I just can’t go to trial today.” Appointed counsel candidly testified under oath that he had not conducted a factual investigation, that he had not spoken to any witnesses, and that he had not previously brought to the court’s attention the lack of cooperation on the part of the appointed investigator. The court denied the motion for delay after merely ascertaining that this was not a capital murder case.

As this court stated in Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977):

“Any claim of ineffective assistance of counsel must be determined upon the particular circumstances of each individual case. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).
“The adequacy of an attorney’s services must be gauged by the totality of the representation, Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Coble v. State, 501 S.W.2d 344 (Tex.Cr.App.1973), and the allegations of ineffective representations will be sustained only if they are firmly founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973).”

Where counsel is appointed, as here, the test is whether the defendant was provided with reasonably effective assistance of counsel. Ex parte Gallegos, supra, and cases therein cited.

Here there were two people other than appellant and the deceased who were present at the actual shooting. One of them was the driver of the car in which the deceased was riding when he was killed and, although he was the State’s primary witness, he was never contacted by the defense prior to the time he took the stand to testify. The other eyewitness was a casual friend of appellant known only as Larry who was riding with appellant when the killing occurred. Although appellant testified that he did not know the last name and location of Larry, there was nothing in the record to indicate that efforts were made to contact and interview Larry to corroborate appellant’s testimony as to the circumstances of the shooting. Two go-go dancers, one of whom was a fairly close acquaintance of appellant and the other was known only as Sheba to appellant, were not interviewed by the defense prior to their testimony as to the background and possible motive for the shooting. The six police officers who testified were not interviewed by the defense prior to trial.

It is fundamental that an attorney must acquaint himself not only with the law but also the facts of a case before he can render reasonably effective assistance of counsel. The size of the burden on the counsel to acquaint himself with the facts will vary of course depending upon the complexities of the case, the plea to be entered by the accused, the punishment that may be assessed, and other such factors, but that burden may not be sloughed off to an investigator if one is appointed. It is counsel’s responsibility.

Here the appointed counsel for an indigent defendant charged with murder who could, and did, receive a life sentence relied on an appointed investigator to produce at the last moment a thorough investigation when the investigator had already months before promised the same thing and then did not bother to contact the attorney even after the attorney wrote to him about it. Such trust was sorely misplaced and as a result neither the investigator nor the counsel did the job they were appointed to do.

The trial court, which should have been contacted much earlier by counsel as to the derelictions of the investigator, heard the full story and knew that counsel was totally unprepared for trial, yet routinely denied the motion for a week’s delay after ascertaining only that this was not a capital case.

In applying the reasonably effective assistance standard to the facts here, we must conclude, based on the actions of the appointed investigator, the appointed counsel, and the trial court, that appellant was denied the effective assistance of counsel.

The judgment is reversed and the cause remanded.


author: VOLLERS, Judge.

text:
    Ex parte Humberto SANDOVAL.
    No. 59560.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 20, 1978.
    Rehearing En Banc Denied Feb. 21, 1979.

      Sam D. Adamo, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.
    Before DOUGLAS, TOM DAVIS and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

This is an appeal from a habeas corpus proceeding wherein the petitioner requested the trial court to reduce the bail set in this case.

The record reflects that the petitioner filed an application for writ of habeas corpus from the 184th District Court of Harris County, Texas. The writ of habeas corpus was issued and the hearing was had upon the matter. The record reflects that petitioner is being held upon an indictment alleging that he did knowingly and intentionally possess a controlled substance, to-wit, cocaine, with intent to deliver. Bail had been set in the amount of $500,000. The judge hearing the application for reduction of bail denied petitioner’s request for relief, from which he gave notice of appeal to this Court.

The petitioner presented evidence that he was married, had two children and had lived in New York City prior to moving to Colombia and becoming a citizen of that country. He returned to the United States in 1977, to Houston. He had an apartment in Houston with his wife and children, and his children had started school in Houston. He was legally in Houston, even though he was still a resident of Colombia.

Petitioner also presented testimony that he had never been convicted of a crime in either the United States or Colombia. He also presented testimony as to his ability to make bail in the amount of $10,000.

The State presented no testimony as to the circumstances surrounding the commission of the crime with which appellant was charged, the sufficiency of the evidence indicating his likelihood of conviction, the severity of the punishment or any prior criminal history on the part of the petitioner.

While we recognize that the primary purpose of setting bail is to ensure the presence of the petitioner in court upon the trial of the charge against him, there are other factors which enter into the determination of what constitutes reasonable bail in any particular case. Factors for consideration by the court in determining reasonable bail include likelihood and probable severity of punishment, as well as the ability of the accused to make bail. Ex parte Alba, 469 S.W.2d 188 (Tex.Cr.App.1971). This Court has also recognized in the past that the fact that a person is a citizen of another country is not, by itself, a sufficient reason to require excessive bail even if it is a proper consideration in setting bail. Ex parte Salinas, 561 S.W.2d 10 (Tex.Cr.App.1978).

Since this record contains no evidence of aggravating factors which would indicate that the petitioner herein will probably receive a lengthy sentence in the penitentiary as a result of this charge, we find that bail in the amount of $500,000 is excessive in this case. On the other hand, the petitioner’s ability to make bail is not controlling either. We therefore set reasonable bail in this cause in the sum of $50,000.

The petitioner’s request for reduction of bail is granted and bail is set in the sum of $50,000. It is so ordered.


author: DOUGLAS, Judge.

text:
    Michael Gregory TODD, Appellant, v. The STATE of Texas, Appellee.
    No. 55607.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 24, 1979.
    Marian S. Rosen and Clyde W. Woody, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Henry K. Oncken, Asst. Dist. Attys., Houston, for the State.
   OPINION

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

DOUGLAS, Judge.

Michael Gregory Todd appeals from his conviction for the offense of aggravated robbery. Punishment was assessed by the court at sixty years.

At approximately 11:45 p. m. on the evening of August 17,1975, Charles and Carrie Mize and their son, Skipper Mize, were awakened when their doorbell was rung by a man claiming to have a summons for Mr. Mize. The complainant opened the front door to find three men in masks on his front porch. One of the men in a panty-hose mask, later identified as the appellant, grabbed the complainant, placed a gun to his temple and threatened to kill him if he did not co-operate. The complainant was directed to proceed to the master bedroom where he and his family were tied, had their heads covered with pillowcases and were forced to lie face down on the bed. Thereafter, the complainant, a wholesale jewelry salesman, was told by appellant to reveal the location of all jewelry and valuables in the house. In the course of the robbery, appellant and his co-defendants stole some $100,000 worth of sample diamond and gem-set jewelry, $40,000 worth of personal jewelry, fifty silver dollars and a 1973 Oldsmobile, all of which belonged to the complainant.

On Thursday, August 21, 1975, a police lineup was conducted at which Charles, Carrie and Skipper Mize all identified appellant, by appearance and voice, as one of the men who had robbed them the previous Sunday.

Seth Ricklin, the complainants’ neighbor, testified that an hour and a half before the robbery he saw three men in an unfamiliar car drive past the complainants’ house. Ricklin identified co-defendant Steven Clements as the driver and appellant as the man sitting next to Clements. Leslie Hage-dorn, another neighbor, testified that at around 10:30 on the night of the robbery she saw three men in their late twenties walking past the complainants’ house. She identified appellant as having been one of the men.

Arresting officer Sam Nuchia testified that on the basis of Seth Ricklin’s photographic identification of the appellant he obtained a warrant for his arrest. With the assistance of six other patrolmen and a police helicopter, a “stakeout” was conducted at appellant’s home. Upon leaving his house, Todd was followed by officers to a trailer belonging to Steven Clements. From there, officers pursued Todd and Clements to an apartment shared by co-defendant Howard Pope and Janet Womack. The four were followed to the Great Southern Bank in Houston and from there to the Pope apartment. A knock on the apartment door elicited no response. Officers entered the unlocked apartment and found appellant, Steven Clements and Howard Pope standing at a table on top of which lay a blue box of jewelry identified as that belonging to the complainants.

Co-defendant Howard Pope testified that he had committed the offense with Michael Todd and Steven Clements; that the robbery had been solicited by pawn shop owner Nukie Fontenot in exchange for $5,000 to be split between the co-defendants; and that following the robbery, some of the jewelry was taken to the Great Southern Bank and stored in Janet Womack’s safety deposit box. He further testified that he, the co-defendants and Janet Womack had withdrawn the jewelry from the lockbox at the bank immediately prior to their arrest.

Lillie Todd, mother of appellant, and Judy Todd, wife of appellant, both testified that appellant was with them at the ranch of Mr. and Mrs. Carl Scoggins the weekend of the robbery; that appellant had attended a rodeo in Richland Springs with Judy, had camped out with her on the ranch property on Saturday night and had returned to the ranch house with Judy after dusk on Sunday. They further stated that appellant was on the road to Houston with them at the time of the robbery.

Appellant advances fourteen grounds of error for our consideration. We need not reach each of these contentions. Appellant asserts that the court’s charge constituted a fatal variance between the indictment and the evidence offered and that such error is fundamental requiring reversal notwithstanding appellant’s failure to timely object at trial. Upon these grounds the conviction is reversed.

Each of the three counts of the instant indictment charged the offense of robbery as defined by V.T.C.A., Penal Code, Section 29.02(a)(2). Each count further alleged aggravation by virtue of appellant’s having

“[ijntentionally and knowingly threatened] and place[d] the Complainant in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, namely, a pistol.”

The indictment, therefore, alleged the offense of aggravated robbery under Penal Code Section 29.03(a)(2).

The portion of the charge to which appellant objects instructed the jury on an alternative theory of aggravation. The court charged the jury that it should find appellant guilty of aggravated robbery if, in the course of robbery, appellant

“caused serious bodily injury to Charles Mize or the defendant used or exhibited a deadly weapon, to-wit, a pistol . . (emphasis supplied).

No evidence was adduced at trial to show that appellant caused serious bodily injury to Charles Mize. The jury was nevertheless charged on the law of aggravated robbery “by using or exhibiting a deadly weapon” under Section 29.03(a)(2) and aggravated robbery “with serious bodily injury” under Section 29.03(a)(1).

For the court to charge the jury on both theories of aggravated robbery when the evidence supported only a charge on aggravation “by using or exhibiting a deadly weapon” was error. Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976); Reid v. State, 560 S.W.2d 99 (1978); Mauldin v. State, 463 S.W.2d 10 (Tex.Cr.App.1971).

Moreover, appellant correctly argues that by this charge the trial court authorized the jury to render a guilty verdict under every conceivable theory of aggravation rather than limiting its charge to the theory of aggravation alleged in the indictment. The charge of aggravation in the instant case is virtually identical to those given in the recent cases of Johnson v. State, 573 S.W.2d 778 (Tex.Cr.App.1978); Cleland v. State, 575 S.W.2d 296 (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); and Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977). In Johnson, Davis and Robinson, as in the present case, the indictments charged the offense of aggravated robbery by using and exhibiting a deadly weapon under Penal Code Section 29.-03(a)(2). The juries were charged not only on the theory of aggravation alleged in the indictment but also on aggravation “with serious bodily injury” under Section 29.-03(a)(1). In Cleland, the converse situation was presented, the defendant having been indicated only for aggravated robbery with bodily injury and the jury having been charged on both the “bodily injury” and “deadly weapon” theories of aggravation. In each case, this Court has held that it was error for the trial court to charge on each conceivable theory of aggravated robbery rather than limiting the charge to the theory of aggravation alleged in the indictment. In each case the charge was held to be fundamentally defective.

Following the holdings in the foregoing cases, the judgment is reversed and the cause is remanded.

      . The writer does not agree with the cases cited as fundamental error because error in each case was harmless. In the present case there was no serious bodily injury shown by the evidence. There was no way that the jury could have been misled or the appellant injured by the charge, but the majority of the Court has previously held otherwise. All of the above cases should be overruled. See the dissenting opinion on motion for rehearing in Cleland v. State, 575 S.W.2d 296 (Tex.Cr.App.1978).