author: DOUGLAS, Judge. DAVIS, Commissioner.

text:
    Willie D. DILLARD, Appellant, v. The STATE of Texas, Appellee. Harold Eugene NUNLEY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52587, 52588.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Opinion on Appellants’ Motion for Rehearing April 20, 1977.
    Second Rehearing Denied May 18, 1977.

      S. Price Smith, Jr., Wichita Falls, for Willie Dillard.
    Bob Balch, Wichita Falls, for Harold Nunley.
    James B. Ammons, Asst. Dist. Atty., Timothy Eyssen, Dist. Atty., Wichita Falls, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are appeals from convictions for the offense of aggravated robbery. The jury, having found that each appellant had a prior felony conviction, assessed punishment in each case at forty years. Both appellants present substantially the same contentions.

The sufficiency of the evidence to support the convictions is challenged. The indictment alleges that Dillard, Nunley and James Earl Shaw on March 4, 1975, “while in the course of committing theft of property, namely, United States currency, from Jack Hairston, with intent to obtain and maintain control of said property, James Earl Shaw, using and exhibiting a deadly weapon, to wit, a shotgun, knowingly and intentionally placed Jack Hairston in fear of imminent bodily injury and death.”

Jack Hairston testifed that on March 4, 1975, he was employed as the night auditor at the Holiday Inn East in Wichita Falls. At approximately 3:40 a. m., a black male entered Hairston’s office and exhibited a long barreled gun. Hairston described the man as being approximately six feet tall, clean shaven, slender, with a medium length “Afro” hairstyle and dressed in a blue jacket. He said he responded to the robber’s demands for money by giving him the contents of the cash register. This totaled exactly $190.00 in currency. The robber asked him for the location of the safe. Hairston told him that a filing cabinet contained money. The robber threatened to shoot Hairston, took his wallet and made him lie on the floor. The robber then went to the filing cabinet and removed a small grey metal box which contained $75.00 in currency and coins and left. Immediately thereafter Hairston called the police, reported the robbery and gave a description of the robber.

Robert Arnold, Jr., a radio communications dispatcher for the Wichita Falls Police Department, testified that at approximately 3:43 a. m. he received Hairston’s call concerning the robbery and immediately dispatched a bulletin to the officers on duty in that area. He gave a description of the robber and stated a long barreled weapon was used in the robbery.

Officer Alan Bragg testified that he was on patrol when he received Arnold’s dispatch. At approximately 3:50 a. m., in the area of the motel, he saw a black over yellow Plymouth traveling at an excessive rate of speed, above the 35 m.p.h. limit. He pursued the vehicle and stopped it. He had intended to issue a traffic citation but decided not to because he was unable to obtain an accurate clocking of the vehicle’s speed.

Bragg further testified that he decided to check the driver’s identification. As he exited the patrol car the driver of the Plymouth emerged from his automobile. Bragg said he asked the driver to produce his operator’s license. At this point the officer observed two other men in the automobile. He approached it and saw a shotgun on the rear floorboard. He stated that Officers Bartosh and Horton had arrived in the meantime. The two men remaining in the Plymouth complied with the other officers’ request to get out.

Bragg identified Dillard as the driver of the automobile and Nunley as one of the passengers. The other passenger, Shaw, fit the description of the robber.

The officer stated that a search of the automobile yielded the weapon, ammunition and a large amount of currency which was “stuffed under the front seat.” This money totaled exactly $190.00. Bragg said another officer searched Dillard and found approximately $75.00 in his pockets. The money found on Dillard included currency and coins.

Officers Charles Bartosh and Horton assisted Bragg in stopping the vehicle. When Bartosh saw the three men exit the vehicle, he saw a shotgun on the rear floorboard. He saw that Shaw fit the description of the robber and he decided to arrest and handcuff the three men.

Officer Glen Smith testified that after talking to Shaw he went to a highway intersection located about a mile east of the motel and found a metal grey cash box in a ditch.

James Earl Shaw, who was an accomplice witness, testified that Dillard and Nunley came by Linda Burnett’s house at 2:00 a. m. on the morning of the robbery. Linda Burnett, Monica Brewster and Sherry Milam were with Shaw at the time. After a brief discussion about robbing the Holiday Inn, Dillard, Nunley and Shaw went to Nunley’s house and got his yellow Plymouth automobile. Dillard told Shaw that he had previously been employed by the Holiday Inn East and that the money was contained in a filing cabinet and a safe. Shaw said he was told that he should go in and take the money while Nunley and Dillard remained in the car.

Shaw further testified that the shotgun found in Nunley’s Plymouth was the same gun he exhibited during the robbery. He also identified the clip and a shell which were discovered in the automobile.

Shaw testified that he went into the motel office and robbed Hairston. As the trio of robbers left, Dillard placed the money from the cash register under the front seat. Then he put the money from the cash box in his pockets. Shaw said that the box was subsequently thrown out of the car at a Waurika highway intersection near the motel. Shortly thereafter the police stopped the Plymouth as the robbers were traveling toward town and placed them under arrest. He further testified that he told some officers he had robbed the motel’s auditor and helped them recover the cash box.

Sherry Milam testified that she shared a house with Linda Burnett and Monica Brewster. She stated that Dillard and Nunley came by the house between 2:00 a. m. and 2:30 a. m. on the morning of the crime, picked up Shaw and left.

Officer Dan Best testified that he and Officer Smith arrived at the scene of the arrest and had a conversation with Shaw concerning the robbery. Then Shaw directed the officers to the 77 Ranch Road and Waurika Highway intersection where the empty cash box was discovered. Best also recovered Hairston’s wallet from Shaw. It contained Hairston’s driver’s license and several credit cards.

The records of the Holiday Inn reflected that Dillard had previously been employed at the motel. No witnesses testified for the defense.

Article 38.14, V.A.C.C.P., requires corroborating evidence which tends to connect a defendant with the offense in order to support a conviction based upon accomplice testimony. Appellants argue the evidence corroborating the testimony of Shaw is insufficient.

The test of sufficiency of the corroborating testimony requires eliminating from consideration the evidence of the accomplice witness and then examination of the testimony of other witnesses to ascertain if there is inculpatory evidence which tends to connect the accused with the commission of the offense. The evidence is sufficient if there is other evidence of an incriminating nature. Otherwise, it is not sufficient. James v. State, 538 S.W.2d 414 (Tex.Cr.App.1976); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975), and cases cited therein.

The corroboration need not directly link the accused to the crime nor be sufficient in itself to establish guilt. Eliminating from consideration the testimony of the accomplice James Earl Shaw, we are left with (1) the testimony of Sherry Milam that Dillard and Nunley came by her house between 2:00 a. m. and 2:30 a. m. on the morning of the offense and picked up the accomplice; (2) the testimony of Officers Bragg, Smith and Best that appellants were arrested with the accomplice less than fifteen minutes after the robbery at a short distance from the scene; (3) the testimony of Bragg and Smith that a long barreled shotgun fitting the description given by the motel auditor was found in Nunley’s vehicle; (4) the testimony of Bragg that exactly $190.00 was found hidden underneath the front seat of the Plymouth, together with Hairston’s testimony that exactly $190.00 was taken from the cash register; and (5) Bragg’s testimony that approximately $75.00 was discovered in Dillard’s pockets, together with Hairston’s testimony that $75.00 was contained in the stolen cash box. We hold the evidence is sufficient to corroborate the accomplice’s testimony.

Nunley, without an objection or ground of error, contends that there is a fatal variance between the enhancement paragraph of the indictment and the proof.

The indictment alleged robbery. The judgment and sentence were for robbery. He asserts that the time sheet in the prison packet shows that he was serving time for larceny. The judgment and sentence control, not the statement of a board of corrections employee. No variance is shown.

Next, appellants contend that their arrests were made without probable cause and the evidence obtained as the result of the arrests should have been suppressed.

As set out above, the robbery occurred at approximately 3:40 a. m. The police dispatcher received a report from Hairston about the crime at approximately 3:43 a. m. This report was immediately relayed to all officers on duty in the area. They received a description of Shaw and information that a long barreled weapon had been used and that an undetermined amount of money had been taken.

At approximately 3:50 a. m., Bragg observed a black over yellow Plymouth traveling in a westerly direction from the scene of the crime. Since the vehicle was traveling at an excessive rate of speed, for that area, the officer pursued the vehicle. As Bragg pursued the Plymouth, he suspected that it might be related to the robbery which had occurred ten to fifteen minutes earlier.

Bragg, concerning the speeding vehicle, testified as follows:

“Q. At that point in time, why had you turned on your emergency equipment?
“A. It appeared that I wasn’t doing a very good job of gaining on him. I was gaining on him but it appeared — at the 35-mile an hour there by the school— and it still appeared that he was doing more than that.
“Q. You were not closing on him?
“A. I was closing on him, yes, I was.”

Bragg also testified as follows:

“Q. All right, Officer Bragg, is it your testimony to this jury that you did not stop this vehicle because of the armed robbery at the Holiday Inn?
“A. It possibly occurred to me as I was in pursuit of the car, why it was at that speed and why it was traveling at that rate of speed, I thought there might have been some connection but my original pursuit of the car was for the traffic violation.
“Q. Well, that was the reason you were there, you were there looking for the armed robber?
“A. That is correct.
“Q. And you were in that vicinity in the black area of Wichita Falls for that purpose?
“A. Correct.
“Q. Is that correct?
“A. I was in the vicinity of the Holiday Inn and the black area is not that far from the Holiday Inn East.
“Q. Your purpose in being there was to look for an automobile, or someone, or something in that area, right?
“A. We had a description of a subject and we knew the offense had just occurred just a few minutes before.
“Q. But it just crossed your mind?
“A. When I saw the car go through there and I began my pursuit and I guess I got suspicious of why it was driving at that rate of speed at that time in the morning.
“Q. Suspicious that these were the people, or one of these people was the person that committed the armed robbery?
“A. That possibly could be involved.
“Q. That was the suspicion that you had?
“A. It crossed my mind it could be involved.”

Bragg asked Dillard, the driver of the Plymouth, for his driver’s license. After obtaining identification from Dillard, the officer leaned over to request identification from the other occupants and observed a long barreled weapon in the rear’ floorboard. In the meantime, Officers Horton and Bartosh had arrived and they requested that Nunley and Shaw get out of the vehicle. As these two suspects exited, Bragg observed that Shaw fit the physical description of the robber he had received from the dispatcher and that Shaw was wearing a blue jacket.

The initial stop of Nunley’s vehicle was not justified by probable cause to believe that any crime other than speeding had been or was being committed. The traffic violation authorized the initial stop. Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974). Bragg was thus acting within his authority as a Texas peace officer. Article 6687b, Section 13, V.A.C.S.; Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973); Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973). Bragg’s observation of the shotgun in plain view on the floorboard, therefore, was not the fruit of a search. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr. App.1976).

At this point the officers knew that a robbery had been committed only minutes before at a nearby motel and that a shotgun or rifle was used during the robbery; that Nunley’s vehicle had been driven at an excessive rate of speed away from the scene in the early morning hours; and that appellants were in the possession of a shotgun. Thus, the officers had specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted a further detention of appellants. It is well established that a brief detention of suspicious individuals in order to maintain the status quo momentarily while obtaining more information may be reasonable in light of facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). When the investigation revealed that Shaw fit the description of the robber the officers had sufficient information to justify the three suspects’ arrest. The subsequent searches were incident to the lawful arrests.

Appellants argue that since there was a conflict in testimony over whether appellants were speeding the initial stop could not have been justified.

Officer Bragg, who was in pursuit of the vehicle, testified that it was speeding. The trial court had sufficient evidence to conclude that there was a violation of the traffic law and did not err in admitting the evidence subsequently found.

Appellants contend that the trial court erred in denying their requested charges on mere presence. The rule is that mere presence of the accused in the company of an accomplice shortly before or after the time of the offense is not, in itself, sufficient corroboration of the accomplice’s testimony. Moore v. State, 521 S.W.2d 263 (Tex.Cr.App.1975); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). However, presence of the accused with an accomplice, when coupled with other circumstances, may be sufficient corroboration. Cherb v. State, supra. Thus, if the testimony in the instant case raised the defensive theory of mere presence, appellants were entitled to. their requested charges on the issue. McShane v. State, 530 S.W.2d 307 (Tex.Cr.App.1975).

The record reflects that the court charged the jury relative to the law governing testimony of an accomplice witness, the pertinent part of the charge reading:

“A conviction cannot be had upon the testimony of an accomplice unless the jury first believes that the accomplice’s evidence is true and that it shows the Defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the Defendant with the offense charged and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission.
“You are charged that James Earl Shaw was an accomplice if any offense was committed, and you are instructed that you cannot find the Defendant guilty upon the testimony of James Earl Shaw unless you first believe that the testimony of the said James Earl Shaw is true and that it shows the Defendant is guilty as charged in the indictment; and even then you cannot convict the Defendant Harold Eugene Nunley and the Defendant Willie D. Dillard unless you further believe that there is other evidence in this case, outside the evidence of James Earl Shaw, tending to connect the Defendant with the commission of the offense charged in the indictment and then from all the evidence you must believe beyond a reasonable doubt that the Defendant is guilty.”

The State’s testimony did not raise the issue. Appellants did not testify or raise the defensive theory of mere presence. They were with Shaw, the accomplice, near the scene of the robbery shortly before and after the crime was committed. Further, the fruits of the crime were found hidden in Nunley’s automobile and on Dillard’s person.

Possession by the accused of the fruits of the crime tends to connect them with the commission of the crime and may be sufficient corroboration of accomplice witness testimony. Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). Finally, the shotgun which was used by the accomplice was found in appellant Nunley’s automobile. The trial court did not err in refusing to submit the requested charges.

They complain of the overruling of their motions for new trial after Shaw recanted and testified that they were innocent.

Shaw testified at the hearing on the motions, in part, as follows:

“Q. All right. Now, you had just stated that Willie D. Dillard and Harold Nun-ley had let you out of their car at the Eastex on Flood Street?
“A. Yes.
“Q. And you had asked them where they would be later, and they had told you at McKinney’s Hideaway?
“A. Yes.
“Q. After you got out of the car, what happened?
“A. After I got out of the car, I left from Eastex and got in with Larry Brown, and then me and Larry Brown went to the Holiday Inn. Okay, then we left from the Holiday Inn, went to McKinney’s, and they was out there, that’s when I got with Willie D. Dillard and Harold Nunley from McKinney’s.
“Q. All right. Now stop right there. Is it your statement here under oath that neither Willie D. Dillard nor Harold Nunley participated with you in any way in the robbery of the Holiday Inn East?
“A. They did not.
* * * * * *
“Q. Did you ever talk with the DA before you had an attorney appointed for you?
“A. Yes.
“Q. On how many occasions, do you recall? How many times did you talk to the DA before you ever talked to your lawyer?
“A. About three times.
“Q. What did he tell you?
“A. He tell me that five years and wanted me to testify against them.
“Q. What did you say?
“A. I told him ‘no.’
“Q. Why did you say ‘no’?
“A. Because I didn’t want to testify.
“Q. Why didn’t you want to testify against them?
“A. Because it wasn’t true. They wasn’t with me.
“Q. Are you saying that they weren’t involved?
“A. The (sic) wasn’t involved.
“Q. - And you didn’t want to testify against them?
“A. Yes.
“Q. Well, why did you change your mind? Why did you decide to testify against these two men sitting here?
“A. Like I was scared — like going to the jail and getting 99 years or life, like that.
“Q. Did the DA tell you that you might get 99 years or life?
“A. Yes.
“Q. Is that the reason you testified, and the only reason you testified against these men?
“A. Yes.”

The State called Othniel McKinney at the hearing. He testified that his place of business, McKinney’s Hideaway, was closed on the date the robbery was committed and no one was there.

Ronnie James testified that on April 18, 1975, he was Shaw’s cellmate in the Wichita County jail. James stated that he overheard a conversation between Shaw and appellants, who were confined in an adjacent cell, in which appellants threatened Shaw for testifying against them. James further stated that Shaw promised to “get all three of them cut loose” by talking to the district attorney “about this new story that he made up.”

Whether a new trial should be granted on the retraction of the testimony of a State’s witness is within the sound discretion of the trial judge. His action thereon will not be disturbed unless abuse of such discretion is shown. Wilson v. State, 445 S.W.2d 213 (Tex.Cr.App.1969); Williams v. State, 375 S.W.2d 449 (Tex.Cr.App.1964). See United States v. Nolte, 440 F.2d 1124 (5th Cir. 1971), certiorari denied, 404 U.S. 862, 92 S.Ct. 49, 30 L.Ed.2d 106; United States v. Smith, 433 F.2d 149 (5th Cir. 1970). We conclude that the trial court did not abuse its discretion in overruling the motions for new trial.

No error is shown.

The judgments are affirmed.

OPINION ON APPELLANTS’ MOTION FOR REHEARING

DAVIS, Commissioner.

Appellants contend that there was no evidence that a traffic violation had occurred and thus Officer Bragg was not acting within his authority as a peace officer in conducting the search of the automobile. Appellants cite Faulkner v. State, Tex.Cr. App., 549 S.W.2d 1 (1976), in support of their contention that if Officer Bragg stopped appellants solely to check Dillard’s driver’s license, the search of the automobile was illegal. In Faulkner, supra, we held:

“The initial stop of appellant and his passenger was not justified by probable cause to believe that any crime had been or was being committed. The officers saw no evidence of any traffic offenses. The inarticulate hunch, suspicion, or good faith of the officer in suspecting the car to be stolen was insufficient to constitute probable cause for an arrest, or even a temporary detention. . . . The out-of-county tags and slow driving of the appellant were not evidence of any wrongdoing. And the ‘caution’ of the car’s occupants in the presence of the police officers did not rise to the level of probable cause, either. . . . Although the operator’s license check was advanced as one reason for the detention, it was explained that this was merely a matter of routine in all such situations. The real reason for the stopping of appellant’s automobile would appear to have been its out-of-county tags and the slow, ‘cautious’ driving of its driver. . When the detention permitted by the statute becomes a mere subterfuge or excuse for some other purpose which would not be lawful the actions then become unreasonable and fail to meet the constitutional requirement. The scope of an investigation cannot exceed the purposes which justify its initiation. . . .”

In the instant case, Bragg stated that he pursued appellants’ vehicle because it

“seemed to be traveling at an exceptionally high rate of speed, for that particular intersection.” Bragg stated that the speed limit for that particular intersection was 35 miles per hour. He further testified, “I thought that a traffic violation had been committed. I knew it was in excess of 35, but I didn’t know the exact speed.”

Even though Bragg further related that he did not intend to issue a citation for a speeding violation because he did not have a “provable offense,” see Art. 6701d, Sec. 171(a), V.A.C.S., it is clear that Bragg did think a traffic violation had been committed. We disagree with appellants’ contention that unless Bragg knew the exact speed which the automobile was traveling, no violation occurred. Article 6701d, Sec. 166, V.A.C.S., states that a speeding violation occurs whenever a person drives a vehicle on a highway at a speed greater than is reasonable and prudent and it shall be pri-ma facie evidence that the speed is not reasonable if it is in excess of the speed limit specified in that area.

When Bragg noticed the traffic violation, he was acting within the scope of his authority in stopping the automobile and requesting to see Dillard’s driver’s license. See Art. 6701d, supra; and Art. 6687b, Sec. 13, V.A.C.S. Bragg’s investigation was grounded on a traffic violation, contrary to the investigation in Faulkner, supra, and thus his investigation did not exceed the purposes which justified its initiation. Cf. Faulkner, supra; see Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234. The detention of appellants by Bragg to check identification was not a “mere subterfuge or excuse for some other purpose which would not be lawful.” Cf. Faulkner v. State, supra. Bragg had a right to be where he was when he “plain viewed” the shotgun. See Duff v. State, Tex.Cr.App., 546 S.W.2d 283. We hold that the discovery of the gun, combined with the other factors set out in our original opinion, justified the detention of appellants and the subsequent arrest and search.

Appellants submit that this Court may only consider that evidence introduced at the motion to suppress evidence to determine if the arrest and search were proper. The record reflects that Officer Bragg testified at the trial on the merits concerning the traffic violation prior to the introduction of the shotgun into evidence before the jury. However, Bragg did not participate in the pre-trial hearing on the motion to suppress. Officer Horton testified at the pre-trial hearing but he did not have personal knowledge of a traffic violation being committed. Without evidence of the commission of the speeding violation, the officers had no right to be where they were and the subsequent arrest and search would have been improper. We held in Stiggers v. State, Tex.Cr.App., 506 S.W.2d 609, that the erroneous overruling of a motion to suppress evidence was not reversible error if the fruits of the search were not admitted into evidence at trial. Likewise, in the instant case, because Bragg testified at the trial on the merits as to the traffic violation before the fruits of the search were admitted into evidence, we hold that any error which the trial court may have committed in overruling the motion to suppress was cured. See Riojas v. State, Tex.Cr.App., 530 S.W.2d 298.

We have examined the other contentions raised by appellants in their brief in support of their motion for rehearing and find that they are sufficiently addressed in our original opinion.

The motions for rehearing are overruled.

Opinion approved by the Court.


source: Caselaw Access Project

author: DAVIS, Commissioner. DOUGLAS, Judge,

license: Public Domain

text:
    Howie Ray ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51800.
    Court of Criminal Appeals of Texas.
    April 20, 1977.
    Rehearing Denied May 18, 1977.

      Vincent W. Perini and David Loving, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Winfield Scott, Hugh Lucas and Norman Kinne, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was assessed at death.

The record reflects that appellant, Ernest Smith, and George Holden met in the Pussycat Lounge in Dallas on September 27, 1973. Holden agreed to drive Smith and appellant to an undisclosed place to gamble. Holden loaned appellant a .22 caliber pistol that someone had pawned to Holden and which Holden kept at the bar.

Under Smith’s directions, Holden drove the two men in an automobile he borrowed from his brother’s girl friend to a place near Dolphin Road and Alpine Street and was told to wait in the car. Appellant, armed with the .22 caliber pistol, and Smith, armed with another pistol, left the car for approximately fifteen minutes. When the two returned they were running and were carrying a cigar box containing rolled change, paper money, and a .38 caliber pistol and holster.

Holden testified that appellant stated that he had to shoot someone in the head at Schepps’ Food Store. Holden related that appellant was still carrying the .22 caliber pistol when he returned to the car.

The trio drove to James Mitchell’s house and divided the proceeds of the robbery. Holden further testified that appellant told Mitchell that, “ . . .he had shot the man in the head.”

William Moon, night manager of Schepps’ Food Store at Dolphin Road and Alpine Street, was found shot to death at the store on September 28, 1973. Moon died of a gunshot wound in the head. The .22 caliber pistol belonging to Holden was identified as the murder weapon. Appellant’s fingerprints were lifted from a mustard jar on the checkout counter of the store.

Appellant, in a number of his contentions, complains of testimony and arguments of the prosecutor relating to State’s witness Holden taking a polygraph examination.

The record reflects that indictments were pending against Holden for robbery and murder growing out of the transaction which forms the basis of this prosecution. Holden’s attorney, John Thompson, was called as a witness by the defense and, prior to his testifying, an extensive hearing was had out of the presence of the jury. During the hearing, a number of rulings were made by the court relative to the introduction of testimony about Holden taking the lie detector test. It was developed that a plea bargain had been entered into whereby Holden would testify for the State and the State would in turn recommend probated sentences for Holden in the robbery and murder cases. Additional prerequisites to the agreement were that Holden would take a lie detector test, that he must pass the test, and testify on behalf of the State. The trial court ruled that it was not going to allow the results of the test “in the polygraph examiner’s opinion, or what the questions were, or what areas they went into, or what areas they didn’t go into, or-the answers to any specific questions or even what the specific questions were.”

In addition, the court ruled, “ . when the question is asked what the particularized plea bargain was, if there is an objection to that, I will overrule the objection of the State, and then you will have, in effect, in this Court’s opinion, opened up the basis to — in which the plea bargain was arrived at . . .if the issue of having to take a lie detector test is a requisite to receiving the five year probation, I believe the entire conversation will then be opened up.”

In addition, the following occurred outside the presence of the jury.

“MR. THOMPSON [Holden’s attorney]: . I assume that I am permitted to say when I talked with him [Mulder] on that first occasion that they had talked with Mr. Holden; that he had talked to them; and that they had given him a polygraph test. Am I permitted to state that?
“THE COURT: Whatever Mr. Perini understands. He heard your testimony, that whatever the statement was— “MR. SCOTT [Prosecutor]: The point is, see the polygraph occurred before Mr. Thompson got into it.
“THE COURT: I understand that.
“MR. SCOTT: And Thompson is going to testify that Doug [Mulder] told him he passed the polygraph, and that is going to come out in the Jury’s presence, if they open it up.
“THE COURT: And if it is in the same conversation where not only that he had taken a polygraph test and had passed it, and they would like to use him, that is all. That will be part of the conversation that is opened up.
* * * * * *
“THE COURT: If you ask what the plea bargain was in any manner what sources, then I believe it will open up the entire conversation.”

The record reflects that the following occurred during the testimony of Thompson:

“BY MR. PERINI:
“Q. Mr. Thompson, has there been a plea bargain on those two indictments pending against George Holden that you have testified about?
A. Yes, there has been.
Q. Do you anticipate that your client will plead guilty on those offenses and be placed on probation?
“MR. SCOTT: Your Honor, we object to that question.
“THE COURT: Sustained.
Q. (By Mr. Perini) Has your client, George Holden, been promised that on the two pending indictments against him, he will receive no punishment in excess of probation? “MR. SCOTT: Unless the Court says that it is opening the door. “THE COURT: Overruled.
“THE WITNESS: I would say the answer to that would be yes.
“MR. PERINI: Pass the witness. * * * * * *
BY MR. SCOTT [Prosecutor]:
Q. He has been promised that he will not receive in excess of a five-year probation contingent upon three very critical things; is that correct?
A. That's correct.
******
Q. Now, you have said that there were predicates to this plea bargain that you have testified about. First of all, let me ask you if the plea bargain that you are testifying about— did that occur between yourself and Mr. Doug Mulder who is Mr. Henry Wade’s first assistant?
A. Well, let me state it this way, that I was employed to represent George Holden by the family late October, maybe early November, like the 2nd of November, 1973, and part of this plea bargaining had already occurred before I got on the case, and I talked to Mr. Doug Mulder who is Henry Wade’s first assistant District Attorney, probably in early November, and at that time, George Holden had talked with investigators, had talked with Doug Mulder personally about this, and substantial investigation work had been done with regard to what Mr. Holden had told him about this, plus other things, and a part of this plea bargain, as I understand, was that George Holden would be given a polygraph test—
“MR. PERINI: Your Honor, we object to any testimony of that nature and ask you to instruct the Jury to disregard it.
“THE COURT: Overruled.
“MR. PERINI: Would you strike it from the record in order that it be stricken?
“THE COURT: No.
“MR. PERINI: On the grounds previously stated by the Defense, Your Honor.
“THE COURT: I recall the grounds and I overrule them.
“MR. PERINI: The Defense moves for a mistrial.
“THE COURT: Denied.
“THE WITNESS: In other words, one of the things that Mr. Mulder wanted Mr. Holden to do was to take a polygraph test and—
“MR. PERINI: Your Honor, is this witness testifying from his own knowledge or on what basis? Unless it is pinpointed as to time and place, object to hearsay.
“THE COURT: Pinpoint it as to time and place of the conversation. ******
'BY MR. SCOTT [Prosecutor]:
'Q. And Mr. Mulder and you — Mr. Mulder advised you that he, Mr. Mulder, had talked to George Holden about the case, had talked to him about the possibility of probation and told him he was going to have to take a polygraph test first? Didn’t he tell you that?
'A. That’s right.
‘Q. And he further told you that Holden was run on a polygraph by Detective Jim Wright, and he told you the results of that test, that he passed the test; didn’t he?
“MR. LOVING [Defense counsel]: Objection, Your Honor. That is in violation of prior ruling of the Court.
“THE COURT: Was that a part of the same conversation, Counsel? “THE WITNESS: That was a part of — that was part of another conversation that I had probably within ten days after that.
“THE COURT: Sustain the objection.
* * * * ⅜ *
“MR. LOVING: Your Honor, if I may finish my objection, I would ask that the Court instruct the Jury to disregard that answer.
“THE COURT: Disregard.
“MR. LOVING: And the question. “THE COURT: Disregard the question and the answer to the last question.
“MR. LOVING: And on the grounds previously stated and stated here in open Court, we respectfully request a mistrial.
“THE COURT: Denied.
* * * * * *
“BY MR. SCOTT [Prosecutor]:
“Q. Did you have several conversations with Mr. Mulder?
“A. I have had several conversations with Mr. Mulder. I would say that I had three. Now, let me state for the record to be clear on one thing; in the first discussion that I had with Mr. Mulder, which is the one we have been talking about earlier, I want to make it clear that he did tell me that Mr. Holden had been given a polygraph test and that what he said was that he passed it, and they believed his testimony, and I want to say that, and — [Emphasis supplied.]
“Q. All right. Okay.
“A. And I had subsequent conversations with him in detail about the polygraph test.
“Q. All right.
* * * * * *
“Q. (By Mr. Scott) Did you understand that one of the requisites as to that plea bargain, is that he would come down here and tell the truth?
“A. All right. Let me state for the record that I understand that Mr. Holden was expected to perform, in order to acquire this plea bargain. This is part of the agreement. Number one, he had talked with investigators. He had talked to Mr. Mulder. Number two, he had taken a polygraph; and number three, is that he is going to testify in these trials, if they wanted him to testify, about the facts in this case as he knows them, and tell the truth and not come in and tell some other kind of story.
“I think this is what I had expected. I mean, there wasn’t anything that was where I was led to believe that he was just going to get a five-year probated sentence just because he had taken a polygraph test.
“Q. All right. It was based on more than just that?
“A. That’s correct.”
The record reflects that the prosecutor argued:
“ . . . We were not permitted to show you anything about that, but when they go into the question of plea bargaining, that opens up the conversation about polygraph, about the polygraph— [Appellant’s objection was overruled.] “MR. LUCAS [Prosecutor]: So it was through that and only through that you were permitted to hear this, otherwise, you would have gone to the Jury room and not known one thing about that. Is that fair to you?”
At another juncture, the prosecutor argued:
“ . . . Why don’t we dismiss his case, Mr. Perini says? Because based upon what Mr. Holden has told us, based upon what Mr. Holden has told you, based upon the plea bargaining that you heard about, one of the agreements was that he was going to tell the truth to us; that he is going to tell it to you and that he was going to pass a polygraph, a lie detector, if you please.
“MR. LOVING: Objection, Your Honor, violates a previous ruling of the Court and it is improper.
“THE COURT: Sustained.
“MR. LOVING: Instruct the Jury to disregard it, please, Your Honor.
“THE COURT: Disregard.
“MR. LOVING: Move for a mistrial. “THE COURT: Overruled.”

It has been stated many times that great latitude should be allowed a defendant in showing any fact which would establish bias, motive or ill feeling on the part of any witness for the State. See Evans v. State, Tex.Cr.App., 519 S.W.2d 868: This includes examining an accomplice witness who is testifying for the State in regard to any recommendations for probation or promises not to prosecute. See Burkhalter v. State, Tex.Cr.App., 493 S.W.2d 214; Stephens v. State, Tex.Cr. App., 522 S.W.2d 924.

Holden was a vital witness for the State. There were no eyewitnesses to the crime and it was through Holden’s testimony that appellant was implicated with the actual shooting of the deceased. Clearly, appellant had the right to ask Holden’s attorney if his client had been promised on the two indictments pending against him “he will receive no punishment in excess of probation.” The question then becomes if such inquiry opens up the plea bargain agreement relative to taking a polygraph test and passing the test. While the court ruled that the polygraph operator’s opinion could not be introduced into evidence, the court further ruled that Thompson’s first conversation with Mulder relative to Holden taking the test and having passed the test was admissible if appellant made inquiry about any plea bargain in behalf of Holden.

A review of the testimony and argument heretofore set out reflects that the matter of Holden having taken a polygraph and passed it is before the jury by express testimony as well as by implication.

We reject the State’s argument that appellant failed to preserve his objection to the evidence because he failed to object each time Thompson mentioned the polygraph examination. The court had ruled at the hearing out of the presence of the jury that the first conversation Thompson had with Mulder would be admissible if appellant made inquiry about plea bargaining on behalf of Holden. Art. 40.09, Sec. 6(d)(3), V.A.C.C.P., provides that when the court rules testimony admissible outside the presence of the jury it is not necessary for the defendant to object in the presence of the jury when such testimony is offered. Further, the failure of appellant to object every time the same witness mentioned polygraph was not necessary to preserve error.

It has been the consistent holding of this Court that evidence of the results of a lie detector or polygraph is not admissible on behalf of either the State or the defendant. Lewis v. State, Tex.Cr.App., 500 S.W.2d 167. In King v. State, Tex.Cr.App., 511 S.W.2d 32, this Court said, “. . .It is now well established that evidence regarding polygraph examinations is inadmissible for all purposes.”

The instant case does not fall within the ambit of Lucas v. State, Tex.Cr.App., 479 S.W.2d 314, cited by the State, where the defendant testified on direct examination that he had been administered a polygraph test and the test exculpated his guilt. This Court held that the defendant had “opened the door” and the State could then introduce evidence that the defendant did not pass the polygraph test. The instant case, likewise, does not come within our holding in the recent case of Leach v. State, Tex.Cr.App., 548 S.W.2d 383 (1977), where the defendant testified on direct that he was telling the gospel truth, “I will take a lie detector test on it, or whatever.” This Court held it was permissible for the State to then ask the defendant, “Why didn’t you ask for a polygraph examination?” Nor is this case similar to Rodriguez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61, where it was held that when the accused voluntarily testifies that he offered to take such a test the State may show that he was offered the test but declined to take it.

The State argues that the testimony relative to taking the polygraph test was admissible under Art. 38.24, V.A.C.C.P., because appellant “opened the door” concerning the plea bargaining arrangement and the State had a right to introduce evidence of the polygraph examination to prevent the false impression on the jury that the State would rely on a convicted felon’s unverified version of a murder-robbery in exchange for a probated sentence. The State relies on Roman v. State, Tex.Cr.App., 503 S.W.2d 252, where this Court stated that the purpose of 38.24, supra, was “to reduce the possibility of the factfinder receiving a false impression from hearing the evidence of only a part of the conversation, writing, act or declaration.”

In Romero v. State, Tex.Cr.App., 493 S.W.2d 206, the defendant urged on appeal that the trial court erred in admitting into evidence, over objection, the results of a lie detector or polygraph test. The State responded that the same was admissible by virtue of a pretrial written agreement and stipulation entered into between the defendant and the State prior to the test.

In Romero, Pulakis v. State, 476 P.2d 474 (Alaska Sup.Ct.1970), was quoted, where it was stated:

“On the basis of our study of the judicial authority and academic literature in this area, we conclude that the results of polygraph examinations should not be received in evidence over objection. Even if no objection had been tendered, the trial court ordinarily should reject such evidence. A stipulation for admission does not increase the reliability of polygraph results and therefore should not lead to any derivation from the exclusionary policy.”
In Romero, this Court concluded:
“In the instant case, we conclude as did the Alaska Supreme Court in Pulakis that, based on our study, the results of polygraph tests should not be received into evidence, over objection, even if there had been a prior agreement or stipulation. Such stipulation does nothing to enhance the reliability of such evidence when offered by either side on the issue of the guilt or innocence of the accused.”

This Court further noted in Romero that the rationale underlying the exclusion of stipulated polygraph results is “that it is inconsistent for a court to affirm the unreliability of lie detector tests and at the same time admit into evidence the results of a stipulated test.” See Lewis v. State, supra.

The fact that Holden had agreed with the State in a plea bargain agreement to take a polygraph test did nothing to increase the reliability of such test. To apply Art. 38.24, supra, and hold that the testimony relative to Holden taking the lie detector test became admissible in order that the jury might not receive a false impression would be in effect using a test which in the “almost unanimous view of American courts” has been deemed unreliable to dispel a false impression. See Romero v. State, supra. This we decline to do. Further, we decline to accept the State’s theory that a false impression was created by the appellant’s question to Holden’s attorney as to whether Holden had been promised “he will receive no punishment in excess of probation” for testifying.

With the testimony of Holden having taken and passed a polygraph examination before them, the jury would necessarily conclude that Holden’s testimony about appellant having told him that he shot a man in the robbery was true. It would be unrealistic to not conclude that the unverified testimony of Holden, a convicted felon, was bolstered immeasurably by testimony that he had taken and passed a lie detector test. In Nichols v. State, Tex.Cr.App., 378 S.W.2d 335, it was noted that the asking of a prosecutrix in a rape case if she had taken a lie detector test and an affirmative answer thereto in effect revealed the results and bolstered the prosecutrix’ testimony before the jury.

We find the admission of the testimony relative to the witness Holden having taken a lie detector test to be error, that same was harmful and prejudicial to appellant, and requires reversal of this case.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The plea bargaining agreement was first brought out by the defense and the State then proved the entire agreement.

Even if the testimony about the result of the polygraph examination to show Holden’s full plea bargaining agreement should not have been admitted, the same testimony which was originally objected to was admitted without objection and leaves nothing for review. “It has long been the rule that the admission of improper evidence does not constitute reversible error if the same facts were proved by evidence which was not objected to.” Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 (1957). See 5 Tex.Jur.2d, Sections 444-447, pages 699 et seq. The rules do not change because a severe penalty has been assessed.

The judgment should be affirmed.

      . The conviction of Ernest Benjamin Smith, Jr., Tex.Cr.App., 540 S.W.2d 693. was affirmed by this Court in Smith v. State,

      . Article 38.24, supra, states that:
      “When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

      . In a hearing outside the presence of the jury, Jim Wright, the polygraph operator who administered the test to Holden, testified that he did not ask Holden about appellant having told him that he shot a man in the robbery and whether appellant left the car with a .22 caliber pistol and returned with the same. The court refused appellant’s request to allow this testimony to go to the jury.


author: DOUGLAS, Judge.

text:
    Kenneth Allen CROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 53043.
    Court of Criminal Appeals of Texas.
    April 20, 1977.
    Rehearing Denied May 18, 1977.

      Frank Coffey, Fort Worth, for appellant.
    Robert J. Glasgow, Dist. Atty., Stephen-ville, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the jury at ten years. Appellant’s main contentions are that the evidence is insufficient to show that he was a party to the offense. We overrule these contentions.

Lee Beck Hill testified that she was a cashier at Blue’s Grocery in Mineral Wells on January 23, 1975. At approximately 6:00 p.m. a man wearing two suits of clothes and a ski mask came in and robbed her at gunpoint. He placed the contents of the cash register and some change located underneath the register in a sack and left the store. She could not identify the man who robbed her.

Linda Sadler testified that she was married to Lafayette Sadler and that they were living in an apartment in Mineral Wells when the offense occurred. At 4:00 p.m. on that date Walter Schultz, Robert Sanders and appellant came to the apartment to see Lafayette Sadler. Shortly thereafter, she overheard the four men planning to rob Blue’s Grocery. According to the plan, “they was going out about sometime that evening after dark, and Walter was going in the store, and Lafayette was in the phone booth, and Kenneth (appellant) was in the grass, and Robert was driving the car.”

Linda testified that Schultz, Sanders and appellant subsequently left the apartment and then returned with a change of clothes. They apparently intended to throw away the clothes they were wearing after the robbery was committed. Walter Schultz had a ski mask which he intended to wear during the robbery.

Linda further testified that appellant left the apartment before the other three men did. Schultz, Sanders and Lafayette Sadler left “about dark.” Lafayette returned alone sometime later. The next afternoon the four men met again at the apartment where she heard them discuss the completed robbery. She did not know the amount of money they obtained or how it was “split up.”

On cross-examination she testified that she did not know what appellant said during the two conversations she overheard. Nor did she know who did the talking.

Lafayette Sadler testified that he was tried and convicted for the robbery of Blue’s Grocery Store. On the date in question he and Schultz, Sanders and appellant met in his apartment to plan the robbery. During the robbery he was supposed to stand in a phone booth and act as a lookout. Sanders was supposed to have been in a car, Schultz was supposed to go into the store and rob the cashier, and appellant was supposed to lie “in the grass” with a gun and act as a lookout.

Lafayette Sadler related that he and Schultz changed clothes in the apartment prior to the robbery. Appellant did not change clothes because he “already had on some clothes.” Sadler went to his position in the phone booth at approximately 6:00 p.m. When he left the apartment the other three men were still there. At the scene of the crime he saw Sanders riding around near Blue’s. He did not see appellant there. After a lady came up to the phone booth Sadler left and returned to the apartment. Half an hour later he met Sanders coming up the stairs who assured him everything was all right and left.

Sadler further testified that Sanders again came to the apartment the next afternoon to give Sadler his share of the money. Sadler received $130.00. Sanders did not tell him how much money was stolen or whether it was split three or four ways. Sanders then left. Sadler stated that nobody else came by the apartment and that the four men did not get together and discuss the robbery that day.

Sadler related that he did not know whether appellant received any money from the robbery. After Sadler, Schultz and Sanders were arrested in Mineral Wells on June 5, 1975, Sadler did not see appellant again. Appellant, who had been living in Forth Worth, went to Portland, Oregon sometime thereafter where he was arrested.

On cross-examination Sadler testified that appellant mentioned he did not want to get involved in the robbery. Appellant told the men that the crime was risky and that he thought they should not go through with it.

Appellant testified that he was present in Sadler’s apartment during the planning of the robbery but that he told the others he was too scared to participate. He left the apartment with the others on the day of the offense. When they got outside the apartment he told the others that he did not want to be involved. He discussed the matter with them for awhile and finally said, “Well, I’m not going to be in it.” He then went home. The others went to Blue’s. He stated that he did not receive any money from the robbery.

Appellant testified on cross-examination that he was supposed to lie in the grass near the store and keep a lookout. He stated that he did not have a pistol. He quit his job at General Dynamics in Fort Worth, apparently the day after Lafayette Sadler, Schultz and Sanders were arrested. He related that he went to Portland to care for his ill sister.

The record reflects that Walter Schultz and Robert Sanders were tried and convicted of the robbery. They did not testify at appellant’s trial.

The record does not show that appellant was present at the time of the robbery. Thus, he can only be guilty under the theory of parties as defined by Y.T.C.A., Penal Code, Sections 7.01, 7.02 and 7.03.

Section 7.01 provides:

“(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
“(b) Each party to an offense may be charged with commission of the offense.
“(c) All traditional distinctions between accomplices and principals are abolished by this Section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”
Section 7.02 provides in pertinent part: “(a) A person is criminally responsible for an offense committed by the conduct of another if:
* * * * * *
“(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense;
Section 7.03 provides in pertinent part:
“In a prosecution in which an actor’s criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission . . . .”

Appellant and Sadler testified that appellant actively participated in the planning of the robbery. The jury was authorized to reject appellant’s testimony. Appellant’s testimony that he did not participate in the robbery, if taken as true, would not relieve him of the criminal liability because there is sufficient evidence that he acted with intent to promote or assist in the commission of the robbery as denounced by V.T.C.A., Penal Code, Section 7.02(a)(2).

Under the evidence appellant would have been an accomplice before the adoption of the present code and could not have been convicted as a principal. But the classifications under the 1925 Penal Code no longer exist. Section 7.01(c), supra. The court properly instructed the jury applying the law to the facts. Viewing the evidence in the light most favorable to the State, as we must, we hold that the evidence is sufficient to show that appellant was a party to the offense.

Appellant contends that the State failed to prove ownership of the property taken from the complaining witness. The complaining witness was the cashier. The money was taken from her. Under the present penal code the evidence is sufficient if it shows that the property was taken from the care, custody and control of the complaining witness. See Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976).

In other grounds of error complaint is made concerning the admissibility of evidence. No objections were made when the evidence was offered. Nothing is presented for review.

No error is shown. The judgment is affirmed.

PHILLIPS, J., dissents.


author: GREEN, Commissioner. ONION, Presiding Judge,

text:
    Lee Roy THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 53153.
    Court of Criminal Appeals of Texas.
    April 20, 1977.
    Rehearing Denied May 18, 1977.

      Allen C. Isbell, Houston (Court appointed), for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Jack D. Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of aggravated robbery. Punishment was assessed by the jury at 99 years.

The record reflects that on January 30, 1975 appellant was indicted for aggravated robbery allegedly committed on December 26,1974 in Harris County. On February 10, 1975 Hon. Ronald Bartlett was appointed by the court as appellant’s attorney in response to appellant’s sworn plea of indigen-cy. On the same date Ronald Bartlett entered his appearance as appellant’s attorney pursuant to his appointment by the trial court. On July 10, 1975 appellant’s court-appointed attorney filed a motion to suppress evidence seized as a result of a war-rantless search of appellant’s apartment and requested a hearing on the motion. On July 14,1975 a hearing was begun on appellant’s motion to suppress; however, at the State’s request the contentions in said motion were carried forward to be decided when the evidence was offered. A jury was impaneled and sworn for the trial on the same day.

When appellant appeared for trial on July 15, 1975 he advised the court that he did not want to be represented by Mr. Bartlett “because he ain’t standing up to what I want him to stand up to.” Appellant complained several of his constitutional rights had been violated and that his counsel’s failure to bring the violations to the court’s attention amounted to ineffective assistance of counsel. After a lengthy discussion in the absence of the jury between the court and appellant concerning the latter’s right to have an attorney, the court advised appellant that it is complicated for any defendant to represent himself without benefit of legal counsel but that appellant could do so if he desired, and the following occurred:

“THE COURT: ... You can conduct it yourself, if this is your desire.
“THE DEFENDANT THOMAS: My desire, I don’t want him as my lawyer period.
“THE COURT: You don’t want him to have anything to do with your case period?
“THE DEFENDANT THOMAS: I can’t represent myself either. I don’t know all that much about law. All I am saying, you can appoint another lawyer., whatever you want to do. I just don’t want him to represent me at this time.
“THE COURT: Well, of course, this is the problem that faces the Court almost daily, is the fact that you don’t want him to represent you and yet you don’t have representation yourself and yet you insist that you want representation, which is a complete conflict. The Court has no way to do both. I have no alternative. I can’t say that you can’t have a lawyer, and on the other hand, I can’t say that you have to have a lawyer. You are the only one that can make that choice.
* * * * ⅜ *
“THE DEFENDANT THOMAS: I just don’t want him representing me, because he just ain’t doing what I ask him to do. “THE COURT: You don’t want him to represent you?
“THE DEFENDANT THOMAS: No. I don’t.
“THE COURT: All right. The Court is going to ask him to remain and be available to you if you want him. If you don’t want to use him, then you don’t have to.
“THE DEFENDANT THOMAS: I don’t want him period. I don’t want him representing me or asked to sit beside me period.
“THE COURT: All right, have your seat.
“MR. BARTLETT: Could I clarify the Court’s order on that, so I am to know what I am to do?
“THE COURT: Yes, sir. The Defendant has the exclusive right to appear without counsel, to refuse to use counsel. He has the right to conduct his own trial. He said he doesn’t want you to participate in the trial. And so the Court’s order is that you will remain available to him in the event that there are complications that arise that you will be in a position to help him.
“MR. BARTLETT: Okay, sir.
“THE COURT: But you are not to project yourself into the trial in any manner, including the making of objections. “THE DEFENDANT THOMAS: I want me a lawyer, but I don’t want him to represent me. I want you to appoint me another one.”

Following the court’s ruling, the prosecutor requested the jury be advised that appellant was going to represent himself, so that it would not appear to the jury that appellant was not getting a “fair shake.” The following discussion then took place:

“THE COURT: I think the jury should be advised.
“You have no objection, do you, Mr. Thomas to the Court’s advising the jury that it is your desire to no longer proceed with Mr. Bartlett as your attorney, so that they will understand that you are handling your own case?
“THE DEFENDANT THOMAS: By the constitutional rights of the Court of America, I am supposed to have a lawyer, at all times, if we are going to the jury trial, which I can’t represent myself in no court, because I don’t know the law that good. But I do know I am supposed to have a lawyer present. And I don’t want him present in my case. And I want another lawyer. That’s what I am telling you. That’s the only way I know to tell you I want another lawyer.
“THE COURT: All right, bring the Jury out.”

The court then advised the jury that appellant had decided to represent himself, and thereafter the trial of appellant and his two co-defendants, both of whom were represented by employed counsel, proceeded.

The following day appellant filed a motion for mistrial and dismissal of attorney of record. The motion cited counsel’s failure to pursue appellant’s claim of deprivation of constitutional rights. Among other things, the motion alleged that counsel had not interviewed appellant so as to prepare a defense. The motion reiterated that appellant did not wish to represent himself but desired the appointment of other counsel. There is nothing in the record to indicate that the court investigated appellant’s allegations before they were overruled. The record does reflect that thereafter appellant did not participate actively in the trial. He voiced no objections to evidence or to the court’s charge, cross-examined no witness, called no witness of his own, and did not make a closing argument to the jury. Throughout the trial appellant stated to the court that he was not representing himself and that he wanted another lawyer appointed to represent him. Appellant did testify in his own behalf at the punishment hearing. Appellant’s appointed attorney, in obedience to the court’s instructions, did not participate in the trial in any manner other than to be in attendance.

Counsel appointed, after conviction, for the appeal contends “the trial court erred in not requiring appellant’s appointed counsel to participate actively in the trial when the court knew that appellant had no other counsel and that he was not representing himself.”

The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” The Due Process Clause of the Fourteenth Amendment guarantees the same right to the assistance of counsel, including the right to the appointment of counsel in the case of the indigent defendant, in state criminal prosecutions. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Ex parte Herrin, Tex.Cr.App., 537 S.W.2d 33; Lewis v. State, Tex.Cr.App., 501 S.W.2d 88.

Fundamental to the right to counsel cases is the recognition that the assistance of an attorney is essential to assure a fair trial. Thus, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court observed:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. ... He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.”

Since it is unlikely that an accused will be able to present his case effectively without the assistance of counsel, a conviction of an indigent defendant cannot be allowed to stand where the accused is not represented at trial by counsel unless it be determined that there was an intelligent and competent waiver by the accused. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Webb v. State, 533 S.W.2d 780; Smith v. State, 513 S.W.2d 586. To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Parker v. State, Tex.Cr.App., 545 S.W.2d 151. The standard to determine waiver of the right to counsel was articulated in Faretta v. California, supra. The record must show the defendant is competent to waive the right to counsel and that he knowingly and intelligently has done so after being made aware of the advantages and disadvantages of self-representation. Id., 422 U.S. at 835, 95 S.Ct. 2525; Ex parte Herrin, supra; Ex parte Ross, Tex.Cr.App., 522 S.W.2d 214; Parker v. State, supra.

The critical issue in the instant case is whether appellant’s refusal to accept the representation of his court appointed attorney constituted a waiver of his right to the assistance of counsel.

The record reflects that appellant advised the court orally and by written motion that he was indigent and:

1. He was not being effectually represented by counsel;
2. He wanted appointed counsel discharged;
3. He wanted another attorney appointed to represent him;
4. He did not know the law and did not want to represent himself.

Throughout the trial appellant, without equivocation, continued to assert that he was not representing himself and that he wanted another attorney appointed to represent him. Neither appellant nor the attorney initially appointed to represent him participated actively in the trial.

Under these circumstances we hold that a request for appointment of different counsel, coupled with an affirmative denial of self-representation, is not a waiver of the Sixth Amendment right to the assistance of counsel. We further hold that, absent a waiver, effective representation must be afforded the indigent defendant regardless of whether it is requested by him. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1952); Ex parte Auten, Tex.Cr.App., 458 S.W.2d 466.

No waiver having been made here, the trial court should have ordered counsel to render the fullest possible legal representation under the circumstances with or without the cooperation of defendant, bearing in mind, as the Supreme Court noted in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), that the attorney who represents a criminal defendant is “bound by professional duty to present all available evidence and arguments in support of [the client’s] positions and to contest with vigor all adverse evidence and views.” The court committed reversible error, therefore, in ordering appellant’s counsel “not to project yourself into the trial in any manner, including the making of objections.”

Nothing said here should be construed to grant a defendant the right to appointed counsel of his choice. The accused’s right to seleet his own counsel cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Parker v. State, supra; Rodriquez v. State, Tex.Cr.App., 530 S.W.2d 944; White v. State, Tex.Cr.App., 496 S.W.2d 642. The defendant must accept counsel assigned by the court unless he effectively waives right to counsel in order to represent himself, see Faretta v. California, supra, or can show adequate cause for appointment of a different attorney. See Gonzales v. State, Tex.Cr.App., 532 S.W.2d 343; Rogers v. State, Tex.Cr.App., 488 S.W.2d 833; Viges v. State, Tex.Cr.App., 508 S.W.2d 76.

In light of the disposition of this case, appellant’s other grounds of error will not be discussed.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ONION, Presiding Judge,

dissenting.

The indictment was returned on January 30, 1975, and counsel was appointed for the appellant on February 10, 1975. Over five months later a hearing on appointed counsel’s motion to suppress began on July 14, 1975. This was aborted at the State’s suggestion the matter be decided when evidence was offered at the trial on the merits. On the same date a jury was impaneled.

The next day when appellant appeared for trial with his two co-defendants he, for the first time, complained he didn’t want to be represented by his appointed counsel of some five months. The colloquy between the court and the appellant is set out in the majority opinion and need not be repeated. Suddenly the appellant decided after the jury was in the box he didn’t want appointed counsel to have anything to do with his case, and yet he pleaded that he knew nothing about the law and told the court, “. . . all I am saying, you can appoint another lawyer, whatever you want to do. I just don’t want him to represent me at this time.”

At the point at which this matter was urged for the first time by the appellant, the appointment of other counsel would undoubtedly have caused a postponement for at least a ten day preparation period, see Article 26.04, Vernon’s Ann.C.C.P., and a severance from the trial with his co-defendants, in absence of a waiver of the ten day preparation period. This may have been the exact result appellant sought by his actions.

The trial court tried repeatedly to explain to the appellant the situation involved, but the appellant insisted he didn’t want his appointed counsel representing him under any circumstances. The trial court’s remarks may have been inarticulate, but obviously the court was attempting to explain to the appellant at that point in the trial appellant would have to proceed with appointed counsel or represent himself. He ordered appointed counsel to remain available to the appellant during the trial, but ordered him not to participate in the trial until requested in view of appellant’s continued protestations that he didn’t want his appointed counsel as his lawyer “period.”

This court has repeatedly said that an accused’s right to retained or appointed counsel cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Parker v. State, 545 S.W.2d 151 (Tex.Cr.App.1977); Rodriquez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975); White v. State, 496 S.W.2d 642 (Tex.Cr.App.1973).

In my opinion that is exactly what this appellant attempted to do. While it may have been better practice, in view of hindsight, for the trial judge to have clearly presented the appellant the option of having appointed counsel remain in control of the case or have the appellant expressly waive counsel and agree to represent himself in view of the delay necessarily involved in appointment of other counsel, I cannot conclude that reversible error is presented. The trial court honored appellant’s persistent demands that appellant’s appointed counsel not have anything to do with the case, but ordered him to remain available to appellant during the trial. When the totality of the circumstances is considered, it appears that appellant affirmatively waived his right to counsel.

If today’s majority opinion becomes a part of the case or decisional law of this State, I can well imagine what the future actions of some defendants will be. The right to counsel is a valuable constitutional right, both state and federal, but it must not be manipulated in such manner as to defeat the orderly process of justice.

I dissent.

ODOM, J., joins this dissent.


author: ROBERTS, Judge.

text:
    Frank KELLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 54130.
    Court of Criminal Appeals of Texas.
    April 20, 1977.
    Rehearing Denied May 18, 1977.

      Jack B. Lankford, Corpus. Christi (on appeal only), for appellant.
    William B. Mobley, Jr., Dist. Atty., J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation.

On June 15, 1973, appellant was found guilty of burglary; the court assessed punishment at eight years, probated. Condition (a) of appellant’s probation was that he commit no offense against the laws of this or any other State or the United States.

On March 2, 1976, the State filed a motion to revoke appellant’s probation alleging that on or about February 27, 1976, in Nueces County, appellant:

“did then and there with the intent to commit theft, voluntarily break into and enter a vehicle not classified as a habitation, namely a 1974 Ford pickup truck without the consent of James Lee Bar-ganski, the owner of said vehicle; and in so doing violated the condition of his probation that he commit no offense against the laws of this or any other State.”

After hearing evidence the trial court revoked appellant's probation on this basis.

Appellant’s counsel on appeal contends that the evidence is insufficient to support the revocation order. In addition, appellant has filed a pro se brief in which he contends, among other things, that his right to counsel was unfairly and unconstitutionally abridged. We overrule all of appellant’s contentions and affirm.

On February 27, 1976, Jesse Molina was working as a security guard at the Fluor Construction Company in Nueces County. Sometime between 10:00 a. m. and 11:00 a. m. he saw appellant sitting in James Bar-ganski’s pickup truck, which was parked in the construction company’s parking lot. According to Molina, appellant saw him and ducked down toward the seat of the truck. Molina walked away to search for help from a patrolling security guard. He found the guard, Thomas Carnes, and the two returned to the truck, where appellant was still sitting.

Again, appellant “ducked down and sort of lunged over.” The security guards then persuaded appellant to get out of the truck. While Molina was talking by radio with his supervisor, appellant ran away from Carnes.

After Carnes caught appellant, the officers and the complainant Barganski searched the pickup. They discovered that a vent window of the pickup had been pried open and that Barganski’s citizens’ band radio had been forcibly removed from its mounting. Pushed far back under the seat were a tire tool and a screwdriver, neither of which belonged to Barganski. On the tire tool were paint chips which matched the scratched paint of the dashboard where the entry took place.

Barganski testified that he had locked his truck when he left it in the parking lot at 5:45 that morning. He also testified that he did not give appellant or anyone else permission to enter the pickup.

Carnes testified that part of his job was to check every vehicle on the parking lot every morning “to make sure that nobody is in that parking lot during working hours and to make sure that each one of these vehicles are protected.” Carnes stated that he had just finished checking the vehicles when appellant was discovered in Bargan-ski’s pickup. At the time he made his rounds, all of the vehicles on the lot were locked. He had checked Barganski’s pickup only sixteen or seventeen minutes before Molina first saw appellant in the pickup.

The appellant testified that he had parked his car in the Fluor parking lot in order to apply for a job across the street. When he returned to his car, it failed to start. He stated that he then saw a man inside Barganski’s pickup. This unidentified man agreed to give appellant a ride, but left shortly before the security guards apprehended appellant. On several occasions during the revocation hearing the appellant requested a polygraph examination to prove his innocence. In accord with this request the court recessed the hearing for three weeks. Appellant was given an opportunity to submit to a polygraph examination but refused to do so.

We overrule the contention that the evidence is insufficient to support the revocation order, as we did when faced with similar facts in Chenault v. State, 494 S.W.2d 540 (Tex.Cr.App.1973), and Ewing v. State, 400 S.W.2d 911 (Tex.Cr.App.1966).

We also overrule appellant’s pro se contention that he was deprived of competent counsel. The record reflects that the court appointed an attorney, Leo Duran, to represent appellant. Twice thereafter, Duran attempted to discuss the ease with appellant, but appellant refused to talk with Duran. At these meetings appellant told counsel that his family had retained an attorney named Cromwell to represent him. However, the record clearly reflects that Cromwell was not employed to act as appellant’s attorney but was only hired to do investigatory work.

At the revocation hearing, the trial court was informed of this dispute between appellant and his appointed counsel and of appellant’s alleged employment of Cromwell.

Then, in response to a comment by one of the prosecutors, the court acknowledged that appellant had the right to represent himself. Shortly thereafter, the court stated:

“Let the record show that Mr. Duran was appointed to represent the Probationer when he indicated that he did not have a lawyer and did not have money enough to employ a lawyer and needed an attorney appointed, and I believe the record will show other things that the Probationer just stated as well as the other attorneys have said in the case. So, we’re going to go ahead and proceed.”

The court then informed appellant that he had a right to consult with Mr. Duran during the hearing, but that he was not required to do so.

During the court’s admonishment of the appellant, the court asked appellant if he understood the allegations of the motion to revoke probation. Appellant replied:

“No, sir, I really don’t, but I haven’t had no attorney actually to give me the legal advice on it.”

However, the appellant did acknowledge that he had had a copy of the motion to revoke for more than ten days.

Subsequently, after appellant pleaded untrue to the motion to revoke, the court asked appellant, “Are you insane?” Appellant replied:

“No, sir, I am not. I am fully competent of, you know, common sense, but not legally. I really don’t have no knowledge of this happening at this moment.”

The court then proceeded to hear evidence. The hearing was stopped several times to enable counsel and the court to explain to appellant precisely what was occurring. On other occasions appellant asked questions of witnesses and otherwise participated in the lawsuit. However, the record is unequivocal in showing that it was appellant’s court-appointed counsel who conducted appellant’s defense: Counsel thoroughly cross-examined the State’s witnesses in such a way as to make more plausible appellant’s defensive theory. Counsel also helped appellant get the opportunity to take a polygraph examination.

The trial court should not have required appellant to represent himself when appellant attempted to refuse the services of his appointed counsel. Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App.1977); decided this day. The court should have required appellant to accept appointed counsel since appellant did not waive counsel, did not seek to represent himself, and did not show adequate cause for appointment of a different attorney. Thomas, supra, and authorities there cited.

However, the record reflects that counsel for this appellant, unlike the attorney in Thomas, actively participated in the trial, as, to a lesser extent, did appellant. Thus, the trial court’s actions had the effect of giving appellant his rights as guaranteed by Article 1, Section 10 of our Texas Constitution. See Landers v. State, 550 S.W.2d 272 (Tex.Cr.App.1977); delivered January 5, 1977; opinion on rehearing delivered this day.

Because appellant was adequately and ably represented, we conclude that the trial court’s error was cured. Thomas v. State, supra, is therefore distinguishable.

Appellant’s contention is therefore overruled. In addition, we have examined appellant’s remaining pro se contentions; they are without merit and are also overruled.

The judgment is affirmed.

      . See V.T.C.A., Penal Code, Secs. 30.04, 30.01(3).

      . In doing so, we once again point out that a revocation order need only be supported by a preponderance of the evidence, Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Cr.App.1974), and that in a revocation proceeding the trial judge is the trier of the facts and the sole judge of the credibility of the witnesses and the weight to be given to their testimony, e. g., Farmer v. State, 475 S.W.2d 753, 754 (Tex.Cr.App.1972). We also observe that in a probation revocation, as in other cases, evidence of flight is a circumstance from which an inference of guilt may be drawn. Scamardo v. State, supra, 517 S.W.2d at 297.


author: DAVIS, Commissioner.

text:
    James DANIEL, Appellant, v. The STATE of Texas, Appellee.
    No. 53236.
    Court of Criminal Appeals of Texas.
    April 20, 1977.
    Rehearing Denied May 18, 1977.

      Terrence A. Gaiser, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Andy Tobias, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery by firearms. Punishment was assessed by the jury at sixty-five years.

Appellant and co-defendant Lawrence Thomas were jointly tried for a robbery occurring at the South Park National Bank in Houston on March 22, 1972.

Appellant contends that the court erred in overruling his objection to the prosecutor’s argument “wherein the prosecutor argued outside the record” and “injected un-sworn facts outside the record.”

The record reflects that the following occurred during the argument of the prosecutor at the punishment stage of the trial which gives rise to appellant’s complaint: “We weren’t allowed to go into the fact that a police officer, Officer Morris, was shot during the trial in chief. But we were when they took the stand. The Defendants took the stand and denied each and every bit of it. We weren’t allowed to tell you that a police officer that pursued the individuals was shot and in the hospital for some time and that’s why he couldn’t make an identification. So what do you know about the case now?

“MR. BONNER [defense counsel]: Your Honor, I am going to object to that. Now, the State is saying what he wasn’t allowed to say. He was allowed to put in anything that he wanted to put in. And I think that the jury should know that. “THE COURT: Overruled.
“MR. TOBIAS [prosecutor]: See, the Court overruled it, which meant I wasn’t allowed.
“Thank you, Your Honor.
“So now you know. You see when shoes start getting too tight, they start squeaking a little bit. So just listen during the argument, please.”

We find no merit in the State’s argument that appellant’s ground of error does not meet the specificity required by Art. 40.09(9), V.A.C.C.P. The ground of error sets forth the hereinbefore quoted proceedings, and while reference is incorrectly made to the numbered pages in the record at which same occurred, such error is corrected by a supplemental brief filed by appellant. Art. 40.09(9), supra, provides this Court “shall” review a ground of error if “in the light of arguments made in support thereof in the brief, [this Court] can identify and understand such point of objection.”

We also find no merit in the State’s position that the objection made at trial was insufficient to put the judge and prosecutor on notice that appellant’s complaint was directed to the “prosecutor’s alleged failure to stay within the record.” The very nature of the prosecutor’s argument, coupled with appellant’s objection, “Now, the State is saying what he wasn’t allowed to say,” should have made appellant’s objection obvious to the court.

The State argues that evidence adduced at the punishment stage of the trial placed facts before the jury to support the complained-of argument.

The State points to the cross-examination of Reverend H. J. Mathews, a character witness called by co-defendant Thomas, where the following occurred:

“Q. Reverend Mathews, have you heard that this Defendant Thomas committed the offense of assault to murder on March the 22nd, 1972, on a Houston police officer by the name of T. G. Morris?
“A. Yes, sir.”

In further support of this position, certain testimony elicited from appellant on cross and recross examination at the punishment stage of the trial is cited by the State. Appellant took the stand and testified in support of his motion for a probated sentence, and the record reflects that the following occurred upon examination by the State:

“Q. Mr. Daniel, you know you are also charged with assault to murder that occurred on March the 22nd, 1972, of a Houston police officer, Officer T. G. Morris; is that correct, sir?
“A. I know I am charged with it.
“Q. You don’t know why that man wasn’t able to identify you when he testified from the stand?
“A. Because I wasn’t there.
“Q. You weren’t there. You didn’t see the incident that he was involved in out there?
“A. No. I didn’t see no incident.
“Q. You didn’t see any shooting at all, huh?
“A. I wasn’t out there to see it. •
* * * * * *
“Q. And the officer that was shot, critically shot, you don’t know why he can’t identify you, do you?
“A. Because I wasn’t there.
“Q. The fact that he was shot just above the heart, that he was in the hospital for over a week and a half, just about died, doesn’t have anything to do with his ability to identify you, does it, sir?
“A. Do it have anything to do with identifying me? No. I wasn’t there.
“Q. With his ability?
“A. No. I wasn’t there. No wonder he can’t identify me.”

The “have you heard” question directed to Reverend Mathews and his response in the affirmative that he had heard the co-defendant Thomas committed the offense of assault to murder does not support prosecutor’s argument where he asserts as a fact that a police officer was shot. The State is not permitted (in combatting proof of good reputation given by a defense witness) nor does the question asked seek to make inquiry in such a manner as to show or assert as a matter of fact that a police officer was shot. See Webber v. State, Tex.Cr.App., 472 S.W.2d 136; Osborne v. State, Tex.Cr.App., 518 S.W.2d 805.

The question asked appellant by the prosecutor and the answers given thereto do not constitute evidence which will support the prosecutor’s argument that a police officer was shot.

We find that the prosecutor’s argument placed before the jury new and harmful facts that were not supported by evidence in the trial. See Lopez v. State, Tex.Cr.App., 500 S.W.2d 844; Rodriquez v. State, Tex.Cr.App., 520 S.W.2d 778. In light of the punishment assessed, we cannot conclude that such error was harmless.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Earl James LOVILOTTE, Appellant, v. The STATE of Texas, Appellee.
    No. 52786.
    Court of Criminal Appeals of Texas.
    May 3, 1977.
    Harold J. Laine, Jr., Port Arthur, court appointed, Walter M. Sekaly, Beaumont, court appointed, for appellant.
    Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Lovilotte appeals from a conviction for the delivery of heroin. The jury assessed his punishment at twenty-five years. His only contention is that reversible error was committed when the prosecutor asked a reputation witness a “did you know” instead of a “have you heard” question which could not be cured by an instruction by the judge to disregard it. We overrule that contention and affirm.

Officer Joseph Payne of the Calcasieu Parish Sheriff’s Department in Louisiana testified that he and Deputies Duhon and Herbert drove from Lake Charles to Port Arthur on October 9, 1974, to meet with Lt. Jerry Fontenot of the Port Arthur Police Department at Rose Hill Park. Officers from Calcasieu Parish and Jefferson County had been working together on drug cases in the area.

Upon their arrival at Rose Hill Park, Officers Fontenot, Herbert and Duhon searched him and his vehicle as was customary before an attempt to make a case through the use of an undercover agent. He had no money or narcotics. After the search was completed Fontenot gave him four twenty dollar bills, one ten dollar bill and two five dollar bills. Before Payne proceeded to Earl’s Garage, Duhon hid in the trunk of an automobile. Payne drove it to the garage, parked, waited a minute and got out of the car. Moments later he was approached by appellant whom he knew as “RoRo” because of his previous work in that area of Port Author. After a short conversation, appellant asked Payne if he wanted some “stuff”, which was street talk for dope, and Payne responded that he did. Appellant told him he had some “twenty-five cent papers” (twenty-five dollars worth of heroin). Payne said he needed two; appellant said he had three left. Payne did not want three. Appellant said it would take him about ten minutes to get it there and went into the service station next door to his garage.

Payne sat on the trunk of the car and sang while he waited for some thirty minutes. Appellant then came out of the service station and talked to two other individuals. Roosevelt Scott drove up and went inside the station with appellant. Payne recognized Scott because he had purchased narcotics from him on previous occasions. While appellant and Scott were talking, Payne got back in his car and carried on a conversation with Duhon. Scott and appellant talked a couple of minutes before appellant walked back to Payne’s car and handed him two sealed plastic packages. Payne, in turn, gave appellant two twenty dollar bills and two five dollar bills. Payne put the two packages in his left shirt pocket. Appellant told Payne that if he needed any more “stuff” just let him know. Payne drove off and returned to Rose Hill Park where he was met by Fontenot and Herbert. He gave Fontenot the two plastic packets, the remaining two twenty dollar bills and the one ten dollar bill.

Duhon testified that he got in the trunk for surveillance purposes and to protect Payne. The trunk was equipped so that he could open and close it from the inside. Duhon stated that he overheard the initial conversation between Payne and appellant and testified substantially the same as Payne did. Following the initial conversation he felt someone, who he later determined was Payne because of his voice, sit on the trunk and that Payne stayed there for about thirty minutes. Payne then got back into the car through the passenger side and they conversed for a minute or two. Shortly afterward, he heard the same voice that he had heard earlier when Payne agreed to make the purchase. The man walked up to the passenger’s side of the car and told Payne that it was “good stuff.” He then heard Payne count out the money and pay him. Payne and Duhon then returned to the park. Immediately after getting out of the trunk Duhon watched Payne give Fontenot the two papers of heroin he had taken from his shirt pocket.

Herbert testified that following their initial meeting at the park he and Fontenot drove within two hundred feet of Earl’s Garage and watched while Payne was parked there. Herbert related the same sequence of events as did Payne concerning the arrival and what went on at the garage for some thirty minutes. Herbert assisted Duhon out of the trunk and then watched Payne give Fontenot the two packets from his shirt pocket. All of the officers inspected the packets before Payne placed them in a sealed evidence envelope.

Lt. Fontenot testified to the same facts as the other officers did regarding their initial meeting at the park. He then searched Payne and his car and gave him one hundred dollars. His testimony was in substance the same as that of Herbert about the surveillance at the garage and later getting the heroin and the balance of the money from Payne.

Appellant denied ever seeing, meeting, or talking to Payne or anyone fitting his description on the day in question. On cross-examination he said he “knew of” Roosevelt and Will Scott but saw neither of them or Will Scott’s car on that date. He stated that he knew Will Scott’s car because Scott was a customer of his. Then he admitted that he had heard of drug dealing in the area of his garage but knew nothing of it because he just did not pay any attention to the talk. Appellant admitted to having been convicted for possession of a dangerous drug as well as shoplifting in 1973.

Appellant’s reputation as a peaceful and law-abiding citizen was made an issue at the guilt stage of the trial. Then proper “have you heard” questions were asked of Walter Moore, Sr., relative to appellant having been arrested or convicted on different occasions. Then the following complained of question was asked:

“Q. (Prosecutor) If you had known about these incidents I have asked about, or if you had heard about them, would you still be of the opinion that the defendant has a good reputation?”

The following occurred:

“MR. SEKALY: (Defense Counsel) Your Honor, we object to that question as now definitely being a direct assertion on the part of the State that these events occurred even though this witness has not heard of them.
“MR. DOYLE: (Prosecutor) I withdraw the question, Your Honor.
“THE COURT: The question was asked, it was withdrawn, it was improper, so do not consider it for any purpose.”

A motion for mistrial was overruled.

If the rule in Parasco v. State, 168 Tex. Cr.R. 89, 323 S.W.2d 257 (1959), still applied, appellant would be correct. There the Court held:

“Whenever a question is asked which amounts to an assertion of fact and implies the commission of another offense, its harmfulness cannot be cured by the answer or failure to answer, or by any instruction which the court may give, and reversible error is reflected thereby.”

This statement was quoted with approval in Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971). However, that broad language was expressly overruled in Carey v. State, 537 S.W.2d 757 (Tex.Cr.App.1976). In Carey we held that the asking of such a question could be cured by an instruction to the jury to disregard the question, citing Clark v. State, 500 S.W.2d 469 (Tex.Cr.App.1973); Ortiz v. State, 490 S.W.2d 594 (Tex.Cr.App.1973); Longoria v. State, 507 S.W.2d 753 (Tex.Cr.App.1974), and White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969), as examples of prior cases wherein the harmfulness of asking an improper question was cured by an instruction. In Carey we quoted from White:

“ ‘An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.’ ”

The complained of question should not have been asked, but the error does not call for a reversal. Appellant admitted that he had been convicted twice. These covered two of the have you heard questions propounded to Moore. In view of the evidence of appellant’s guilt and his admission of two prior convictions, and the court’s instruction not to consider the improper question, no reversible error is shown.

The judgment is affirmed.

ROBERTS, Judge,

concurring.

I agree with the majority’s conclusion that it was error to ask Walter Moore, Sr., the “did you know — have you heard” reputation question; I also agree that the error was not reversible.

However, I reach this result by a different route than that of the majority. The majority holds in effect that such a question is generally not reversible error, but may be such in rare cases. In fact, the rule is to the contrary.

In Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974), we discussed “have you heard” questions and unanimously stated that:

“Indeed, the mere asking of an improperly framed question asserting as a matter of fact that the defendant committed a specific act of misconduct is reversible error.” Id., at 828, citing, Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971).

The more reasonable view concerning improperly framed “have you heard” questions is that of Wharton v. State, 157 Tex. Cr.R. 326, 248 S.W.2d 739 (1952):

“Some may be harmless and some may be made harmless by a negative answer, but whenever the question is so stated that it amounts to an assertion of a fact under the conditions here under discussion and it implies the commission of another offense, it may be said that its harmfulness cannot be cured by the answer and seldom by any instruction which the court is able to give the jury.” (Emphasis included) Wharton, supra, at 740, quoting, McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987, 988-989.

In Carey v. State, 537 S.W.2d 757, 759 (Tex.Cr.App.1976) I concurred in the overruling of the following language from Paraseo v. State, 168 Tex.Cr.R. 89, 323 S.W.2d 257, 259 (1959):

“Whenever a question is asked which amounts to an assertion of fact and implies the commission of another offense, its harmfulness cannot be cured by the answer or failure to answer, or by any instruction which the court may give, and reversible error is reflected thereby.”

I felt that such language was too broad and that in Parasco the instruction was sufficient to cure the improper question. Carey involved one of the “seldom” instances, see Wharton, supra, where an instruction cured the error of the mere asking of an improper question which implied the commission of another offense. I adhered to the rule of Wharton, supra, and McNaulty, supra, in Carey and I still adhere to it.

I would hold that the question asked of the witness here was one of those “exceptional cases [in which] an instruction to disregard can cure the error.” Carey, supra, 537 S.W.2d at 759 (concurring opinion).

ODOM, J., joins in this concurrence.