author: ONION, Presiding Judge.

text:
    Dennis Wayne MORR, Appellant, v. The STATE of Texas, Appellee.
    No. 60396.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Jeffie J. Massey, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds and Michael E. Keasler, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for the unlawful possession of cocaine, where the punishment was assessed by the jury at ninety-nine years’ imprisonment after a verdict of guilty and a finding that appellant had been previously convicted of burglary as alleged.

At the outset we shall consider appellant’s contention that the evidence is not sufficient to sustain the conviction.

Omitting the formal parts, the indictment charged the appellant “on or about the 10th day of November in the year of our Lord One Thousand Nine Hundred and 77 in the County and State aforesaid, did unlawfully, knowingly and intentionally possess a controlled substance, namely, cocaine . . .”

Appellant calls attention to Guitierrez v. State, 533 S.W.2d 14 (Tex.Cr.App.1976), which held that in most narcotic possession cases “In order to sustain a conviction, the State must prove: (1) that the accused exercised actual care, control and management over the narcotic or dangerous drug, and (2) that he knew the object he possessed was contraband.” See also Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977).

Appellant argues, among other things, that the State failed to prove, beyond a reasonable doubt, that he knew that the thing he allegedly possessed was cocaine.

In the late afternoon of November 10, 1977, Dallas city police officer Q. D. Stevens received a tip from an informer, who in the past had provided information proven to be correct, that appellant was going to be involved in a marihuana transaction that afternoon. Appellant’s apartment was placed under surveillance. Somewhere between 6:30 and 7 p. m. on the date in question appellant arrived at the apartment complex in a 1969 green Oldsmobile. After appellant left the car and apparently went to his apartment about an hour or hour and a half later, approximately 8:30 p. m., appellant returned to the car. In the interim, the time not being designated, officer Stevens, who had the car under surveillance, by virtue of street lights, approached the car and looked in. He did not see anything on the front seat or on the rear floorboard. When the appellant returned to the car, he was observed to open the trunk, but no one saw what he was doing inside the trunk. Appellant closed the trunk and got in the Oldsmobile and drove to Mesquite. He was followed by Dallas city police officers. He stopped at an apartment complex and went into an apartment for about fifteen minutes. When he emerged from the apartment, he carried a brown paper sack. He entered the Oldsmobile and drove away towards Dallas. Later when the speed of the car appellant was driving increased “. . . up to 80 or 90 miles an hour,” a marked police vehicle was contacted and a uniformed officer stopped the car appellant was driving. The uniformed officer found a syringe in appellant’s shirt pocket containing a liquid. Officer Mee, who had been assisting officer Stevens in the surveillance, arrived shortly after the stop and searched the car appellant was driving. No marihuana was found. The brown sack found in the front seat contained bottles of pills. On the floorboard of the back seat Mee found a box a little larger than a shoe box which had some pliers and a can of motor oil in it. On top of the box were some vials. Mee, without any effort to establish his expertise and without objection, testified: “It’s a vial that you test cocaine with, remove this top right here and take a pinch of cocaine, and put it in here and if it is cocaine, it will change to the color of blue.” It is not clear from the record how many vials were found, but it appears only two had a bluish residue. Mee said, “Point of it being cocaine, I couldn’t definitely say it was cocaine until a chemical analysis had been run.” The appellant was arrested for possession of the pills and later that night was charged with possession of cocaine. The chain of custody of the items seized was established. It was shown that the syringe did not contain a controlled substance. It was agreed the pills in the bottles in the brown sack were caffeine pills. Dr. W. T. Lowery, a chemist, testified that the substance submitted to him by the police, apparently one or two vials containing a bluish residue, contained .38 milligrams of cocaine, which was 0.5% of the total content tested. The direct examination of Dr. Lowery reflects:

“Q. Okay. And let me ask you, Dr. Lowery, if you are familiar with a device such as this, as a cocaine tester? Have you even seen one before?
“A. I have seen it. I have never used it.
“Q. Okay, are you familiar with the operation of it in terms of does it — if cocaine is placed in cocaine tester, does it turn the chemical in the tester a bluish color?
“A. I believe it does.
“Q. You personally haven’t used it?
“A. No, I haven’t.”

Later he testified that he was not sure of the exact chemicals in the testers but he wouldn’t think the chemicals were fit for human consumption and that if cocaine were added it “wouldn’t be a good idea for somebody to try and inject that into their body.”

Testifying, the appellant stated he had borrowed the car involved from a friend on the afternoon in question and didn’t inspect it and didn’t suspect that any kind of illegal narcotics were in the car. He related the owner of the car was Mrs. Cindy Castro Wood. There was no showing to the contrary. From the time appellant came under surveillance about 6:30 p. m. until arrested he was not seen to enter or to reach into the back seat area.

There was no marihuana found to correspond with the informant’s tip. The pills found were caffeine pills. There was no controlled substance in the syringe found. The vials found in the back floorboard were described as cocaine testers, but only two had a bluish residue. Officer Mee related it couldn’t be definitely said to be cocaine without a chemical analysis. The chemist testified that the substance submitted to him contained, after chemical analysis, cocaine which was .05% of the entire matter or .38 milligrams. He had never used cocaine testers and just believed it turned blue when cocaine was added to the chemicals in the tester. He didn’t know. The vial or vials with a blue residue were on a box on the floorboard of the back seat of an automobile which belonged to another individual from whom appellant testified he had borrowed the same. Appellant, while under constant surveillance, was never seen in the back seat or to reach into that area.

The State has the burden of establishing by competent evidence an affirmative link between the accused and the contraband. Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.1974). In furnishing the affirmative link between the accused and the narcotic, the accused is alleged to have possessed independent facts and circumstances must be established indicating the accused’s knowledge of the narcotic as well as his control over such. Wright v. State, 500 S.W.2d 170 (Tex.Cr.App.1973); Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973). As pointed out in Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976), the evidence must affirmatively link the accused to the contraband in such manner that accused knew of its existence and whereabouts. See also Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976).

We conclude that, under the circumstances, the evidence is not sufficient to show that the appellant knowingly possessed cocaine as alleged in the indictment. See Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977).

We also conclude that no further prosecution may be had in this cause pursuant to the holdings in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). These cases dictate that once this court has found the evidence legally insufficient, a second trial on the same charge is precluded by the double jeopardy clause of the Constitution of the United States which is applicable to the states.

The judgment is reversed and the cause remanded and prosecution ordered dismissed.

      . Dr. Lowery testified that there are 1,000 milligrams per gram, and that there are 28.035 grams to an ounce and that the amount of cocaine involved was a really small amount.

      . The State points out that officer Stevens looked into the rear seat area of the Oldsmobile while appellant was at his own apartment and didn’t see anything. It reasons that appellant must have later placed the vials on the back floorboard. It would follow that appellant also placed the box with the motor oil and pliers there. No one, however, saw him in possession of such items or engaging in any activity in the area of the back seat. It should be remembered that Stevens’ view of the back floorboard was by virtue of street lights.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Robert L. ESCOBAR, Abelardo Castillo d/b/a, Eagle Bail Bonds, Appellants, v. The STATE of Texas, Appellee.
    No. 61631.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 26, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Pat Maloney and Timothy T. Tynan, San Antonio, for appellants.
    Bill M. White, Dist. Atty., Roberto De-Leon and Douglas V. McNeel, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ODOM and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from the forfeiture of an appearance bond. The appellants, through four grounds of error, make two basic contentions. First, the appellants argue that the final judgment forfeiting the bond is void because the trial court never obtained personal jurisdiction over appellant Escobar the principal and thus could not render the judgment against the principal that is a prerequisite to a valid judgment against appellant Castillo the surety. Second, the appellants contend that the trial court erred in granting appellee’s motion for summary judgment because the original motion for summary judgment was insufficient under the Rules of Civil Procedure.

Upon entry of a judgment nisi, a citation must be issued which gives notice that the bond has been forfeited and orders an appearance to show cause why the forfeiture judgment should not be made final. Art. 22.03, V.A.C.C.P. This citation must be properly served on the surety and, if the principal’s address is on the bond, the citation must be mailed to that address. Art. 22.05, V.A.C.C.P. In this case, the principal’s address is on the bond, but appellants assert that the citation was never mailed to that address as required by Art. 22.05 and that, consequently, the trial court never obtained personal jurisdiction over the principal. This assertion is not supported by the record.

In the judgment nisi, the district judge expressly ordered that “notice to the DEFENDANT, as principal, be deposited in the United States mail directed to the same DEFENDANT at the address shown on the Bond.” A silent record does not necessarily mean that no mailing occurred. There is nothing in the record which indicates that the order of the district court was not carried out. Absent such an indication in the record, compliance with Art. 22.05 will be presumed. Jackson v. Wallace, 252 S.W. 745 (Tex.Com.App.1923, judgment adopted); In re Estate of Bourland v. Hanes, 526 S.W.2d 156 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n. r. e.); Morris v. Drescher, 123 S.W.2d 958 (Tex.Civ.App.-Waco 1938, writ ref’d).

Additionally, the final judgment of the district court stated that the parties were before the court at the hearing on appellee’s motion for summary judgment. A general appearance before the court by the principal, or by an attorney representing the principal, waives the requirement of service and establishes personal jurisdiction. Toler v. Travis County Child Welfare Unit, 520 S.W.2d 834 (Tex.Civ.App.-Austin 1975, no writ) and authorities cited therein. Where a judgment recites that a party appeared, this recital is presumed true unless there is a conflict between the judgment and the record. Intercity Investments Co. v. Plowman, 542 S.W.2d 260 (Tex.Civ.App.-Ft. Worth 1976, no writ); Carter v. Burleson, 439 S.W.2d 381 (Tex.Civ.App.-Houston [14th Dist.] 1969, no writ); Roberts v. Roberts, 405 S.W.2d 211 (Tex.Civ.App.-Waco 1966, writ ref’d n. r. e. per curiam). No such conflict with the judgment appears in the record before this Court. Compare Day v. State, 489 S.W.2d 368 (Tex.Civ.App.-Austin 1972, writ ref’d n. r. e.). The trial court had personal jurisdiction over the principal.

Appellants also contend that the trial court erred in granting the motion for summary judgment because the motion referred to an attached affidavit, a copy of the judgment nisi, and a copy of the bond, but the motion was actually without these necessary attachments. In the record on appeal, the motion for summary judgment is listed in the index as being with attachments, and the motion is in the record together with all documents referred to, all properly dated. The record is sworn to as correct by the deputy district court clerk. Absent other evidence, we find that the attachments to the motion were “attached thereto or served therewith.” Tex.R.Civ.P. 166-A(e). Attachment of these documents was, in any event, unnecessary because they were already a part of the trial court’s record in the case. Murray v. Texas Department of Public Safety, 461 S.W.2d 210 (Tex.Civ.App.-Eastland 1970, no writ); Perry v. Little, 377 S.W.2d 765 (Tex.Civ.App.-Tyler 1964, writ ref’d n. r. e.).

The attachments were properly filed; yet appellants also argue that, because a copy of the attachments was not served on them, notice was inadequate. Rule 21a, Tex.R.Civ.P., provides that:

“Nothing herein shall preclude any party from offering proof that the notice or document was not received and upon so finding, the Court may extend the time for taking the action required of such party or grant such other relief as it deems just.”

It is doubtful that the unsworn “Exceptions to Plaintiff’s Motion for Summary Judgment” is competent “proof” under this Rule and no other proof was offered. See Hurt v. Bays, 537 S.W.2d 139 (Tex.Civ.App.-Austin 1976, writ ref’d n. r. e.). Appellants also did not secure a “finding” from the trial court on this issue.

Finally, this was an allegation of insufficient notice, not a challenge to personal jurisdiction, and relief under Rule 21a is vested within the discretion of the trial court. Faced with a silent record, we may assume that the trial court satisfied itself during the hearing on the motion for summary judgment that appellants had adequate notice. We also note that the alleged lack of notice essentially translates to lack of notice as to the contents of the bond and the judgment nisi. Appellants were signatories to the bond; we presume they knew its contents. The record further shows that the surety was personally served with a copy of the judgment nisi at the time of its original issuance. We refuse to find, based on this record, that the trial court abused its discretion.

The judgment is affirmed.


author: ODOM, Judge.

text:
    Gary A. LYLES, Appellant, v. The STATE of Texas, Appellee.
    No. 61699.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 3, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.
    Ken J. McLean, Henry R. Muller, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Larry P. Urquhart and John S. Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ODOM and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a bond forfeiture proceeding.

In two grounds of error appellant contends that the forfeiture should be set aside because the name given by the principal upon his arrest, and appearing on the bond, was an alias and not his true name. As a result, argues appellant, he, as surety, was not able to ascertain the principal’s prior record of two felony convictions.

It is established that the only grounds for exonerating liability are those provided in Art. 22.13, V.A.C.C.P. The only provision thereunder that arguably could apply is that the false name rendered the bond “not a valid and binding undertaking in law.” No cases are cited that would support such an interpretation of the statute. In Jones v. State, 504 S.W.2d 442 (Tex.Cr.App.), it was pointed out that a defendant’s name may be alleged in an indictment by means of any name by which he is known, and may be corrected by motion of the defendant if he so desires. See the authorities cited and discussed in Jones. Just as the defendant’s name in the indictment is for purposes of identification, so is the principal’s name in the bond for purposes of establishing his identification. There was no showing in this case that appellant (surety) mistook the principal to be some other person and thereby thought himself to be entering into the contract with some other individual. We hold that the mere use of an alias does not render the bond “not a valid and binding undertaking in law” within the terms of Art. 22.13(1), supra.

In his remaining ground of error appellant argues that there was a fatal variance between the bond and the final judgment of forfeiture in that the bond identified the charged offense by name and as a felony, while the judgment referred to the charge simply as a felony. International Fidelity Ins. Co. v. State, 489 S.W.2d 914 (Tex.Cr.App.), is contrary to appellant’s position. The ground of error is overruled.

The State in its brief points out that the trial court ordered a remittitur on the bond, and suggests that this Court reform the final judgment to order forfeiture of the entire amount of the bond because the trial court was without lawful authority to order the remittitur. State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.), held that a remittitur is authorized only under the terms of Art. 22.16, V.A.C.C.P. No authority for a remittitur appears in this case. The judgment is reformed to order forfeiture of the entire $7,500.00 amount of the bond.

As reformed, the judgment is affirmed.


author: CLINTON, Judge.

text:
    James Alvin MURPHY, Appellant, v. The STATE of Texas, Appellee.
    No. 57681.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 10, 1979.

      Melvin Carson Bruder, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler and John William Booth, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

THis is an appeal from a conviction for aggravated robbery in which the jury assessed appellant’s punishment at 45 years confinement.

Luke Bradley, a sales manager at a Dallas Sears Store, identified appellant as the man — wearing a woman’s nylon hose over part of his face and brandishing a pistol— who forcibly took Bradley’s car as well as an attache ease containing $8,600.00 in checks and currency on the morning of July 7, 1976.

Testifying in his own behalf, appellant denied commission of the robbery and gave an alibi account of his whereabouts at the time of the robbery. Appellant’s cohabitant, Sheryl Davis, corroborated the alibi, insisting appellant had been with her at the time of the commission of the offense.

Over objection, the State was then permitted to introduce the testimony of three witnesses who established the May 6, 1976 robbery of Floyd Whittle, a 7-11 convenience store employee who had collected several stores’ proceeds and driven them to a bank for deposit. After Whittle exited his car, Mark Culp, appellant’s younger brother, grabbed Whittle’s money sack which contained $9,508.00, and ran to a nearby getaway car where appellant and Sheryl Davis were waiting. Culp dropped the money sack before reaching the car.

Before the extraneous offense was established before the jury, the prosecutor, defense attorney and trial judge discussed the matter at length, and the judge consistently ruled he would admit the evidence for the purpose of impeachment of Sheryl Davis and the appellant in that it reflected on their “motives to testify” as they had. Finally, the trial judge stated:

I am going to overrule [the defense attorney’s] objection. I want the record to show that I am admitting this only for the purpose of touching upon the motive, weight, credibility and such of the two witnesses, Miss Davis and the [defendant] Murphy.
Now I am not satisfied that the other two theories . . . mentioned [by the State], the rebutting the defensive theory and the identity would make the testimony admissible. * * * . [W]e don’t need to address [that] . until such time as we draw the charge, because ... I will have to limit the jury’s consideration of it to motive or to motive and identity or to identity and rebutting the defensive theory, one of the above, all of the above, none of the above or some of the above.
I will note [the defense attorney’s] exception.

Defense counsel again voiced strenuous objection to the ruling arguing that the State's only purpose for offering the evidence was to “inflame and prejudice the jury.” The trial judge concluded:

[I] want the record to show that . . . I am letting it in on the exception of motive and motive alone, motive of the two [defense] witnesses that testified. I will note your exception and I specifically, at this point anyway, agree with you as to the admissibility on the grounds of rebutting the defensive theory or identity and I am not letting it in on those grounds. I would sustain your objection.on those grounds, but not on the grounds of the other, and I will note [the defense] exception.

Appellant now complains that the trial court erred in permitting the State to adduce testimony establishing the extraneous offense, because it was not shown to be relevant to a disputed material issue in the case and was therefore tantamount to trying the defendant for being a criminal generally. The State asserts only that the transaction was admissible because it “tended to refute the alibi defense by reflecting on the credibility of the alibi witnesses,” and “the ultimate issue in this case was whose witnesses were telling the truth.” The only case cited in the State’s brief is Vaughn v. State, 530 S.W.2d 558 (Tex.Cr. App.1976) which is inapposite to the issues presented by this case.

It is an established general rule of evidence that proof of similar happenings, extraneous transactions or prior specific acts of misconduct committed by a party is irrelevant to the contested material issues in the case on trial and therefore inadmissible.

In a criminal proceeding, when the extraneous or similar transaction committed by the accused, sought to be admitted by the State, constitutes a criminal offense, introduction of that “extraneous offense” transaction is inherently prejudicial because: (1) the accused is entitled to be tried on the accusation made in the State’s charging instrument which specifies the “material issues” of the case and cannot— consistent with the rudiments of due process — be tried for some collateral crime of which he has no notice, Jones v. State, 568 S.W.2d 847 (Tex.Cr.App.1978); Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977); Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 (1953); Couch v. State, 155 Tex.Cr.R. 585, 238 S.W.2d 198 (1951); and, (2) an accused’s “propensity to commit crimes” is not an issue which is material to whether he is guilty of the specified conduct charged by the State; it follows therefore, that introduction of evidence establishing such a propensity constitutes a trial of the accused as a “criminal generally” which offends our system of justice. Young, supra; Couch, supra; Clements v. State, 147 Tex.Cr.R. 531, 182 S.W.2d 915 (1944); see Spivey v. State, 146 Tex.Cr.R. 11, 171 S.W.2d 140 (1943). See also Jones, supra; Etchieson v. State, 574 S.W.2d 753 (Tex.Cr.App.1978); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

Extraneous transactions constituting offenses shown to have been committed by the accused may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the ease; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Ruiz v. State, 579 S.W.2d 206 (Tex.Cr.App.1979); Jones, supra.

Our threshold inquiry, therefore, is whether the credibility of appellant and his alibi witness Sheryl Davis is a “material issue” in the trial of the instant case, for, even if contested, should the issue be one which is immaterial to the essential elements on which the State has the burden of proof, the prejudicial effect of evidence of an extraneous offense would far outweigh its probative value. See Sparks v. State, 366 S.W.2d 591 (Tex.Cr.App.1963); and n. 8, supra. We hold that an issue regarding the general credibility of a witness in a criminal trial is not a material issue in the sense that it will justify the admission of inherently prejudicial evidence of details of an extraneous offense committed by the witness. Sparks, supra; Tomlinson v. State, 289 5.W.2d 267 (Tex.Cr.App.1956); Ware v. State, 36 Tex.Cr.R. 597, 38 S.W. 198 (1896).

In recognition of this rationale it has long been the law of this State that proof of either mere accusations, or specific acts of misconduct, is inadmissible to affect the credibility of the accused or any other witness. Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.1974); Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.1970); Hunter v. State, 168 Tex.Cr.R. 160, 324 S.W.2d 17 (1959); Sparks, supra; Reed v. State, 42 Tex.Cr.R. 572, 61 S.W. 925 (1901); Red v. State, 39 Tex.Cr.R. 414, 46 S.W. 408 (1898); Ware, supra; McAfee v. State, 17 Tex.App. 135 (1884).

Our Legislature has in addition provided that the mere fact that a witness has been charged by indictment, information or complaint with commission of a criminal offense “shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching . . . [that] witness unless ... a final conviction has resulted . . . .” Article 38.29, V.A. C.C.P. (formerly Article 732a). Even when the State has a burden of proving the fact that a defendant or witness has been finally convicted of a criminal offense, the details of that offense are inadmissible. See, e. g., Driehs v. State, 164 Tex.Cr.R. 455, 301 S.W.2d 123 (1957).

In limited circumstances, proof of the fact that charges have been filed against a witness may become admissible upon a showing that such evidence tends to establish prejudice, interest, bias or motive of the witness in testifying as he has. Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); Blake v. State, 365 S.W.2d 795 (Tex.Cr.App.1963). See also Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). These cases all deal with the admissibility of charges pending against prosecution witnesses, however, where a likelihood exists that in exchange for such testimony for the State the witness will ultimately benefit (or has benefited) in negotiations concerning his own criminal charge. In most cases, however, proof of a pending charge against, or commission of an extraneous offense by, a defense witness has no bearing on his motive to testify for an accused, see, e. g., Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.1975), and thus, the provisions of Article 38.29, supra, control. We fail to see how evidence of the robbery of Whittle, and the fact that charges therefor were pending against appellant and Sheryl Davis bore on the issues of these witnesses’ bias or interest in testifying as they did in the instant case. We agree with appellant that the effect of this evidence was to show the jury that the witnesses were “bad” people, and the defendant was a “criminal generally,” and therefore unworthy of belief.

We believe this case exemplifies the wisdom of the well settled rule that admission of extraneous offense evidence for the purpose of general impeachment is unjustifiably prejudicial, and hold that the admission of such evidence for that purpose here constituted error. The trial court’s charge to the jury limiting its consideration of the evidence to the issue of the witnesses’ credibility compounded the error. Our disposition of this ground of error obviates our address of appellant’s other grounds of error.

For the reasons stated, the judgment of conviction is reversed and this cause is remanded to the trial court for a new trial.

      . Culp was one of the witnesses offered by the State to establish the extraneous offense. It was brought out before the jury that Culp had been charged with the robbery of Whittle and had agreed to testify in exchange for a recommendation for probation.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . The trial court charged the jury at the guilt-innocence stage as follows:
      You are further instructed that certain evidence was admitted before you in regard to the defendant and the witness Sheryl Davis having been involved in an offense other than the one for which the defendant is now on trial. In connection therewith, you are instructed that such evidence was not admitted before you, nor shall the same be considered by you, in determining the defendant’s guilt, if any, in this case. Said evidence was admitted before you to aid you, if it does aid you, in determining the credibiiity of the defendant as a witness for himself, and the credibility of the witness Sheryl Davis, and further to aid you, if it does aid you, in determining how much weight, if any, you choose to give these two witnesses. You are instructed that you shall consider said evidence for no other purpose.

      . Appellant concedes that the alibi defense raised an issue as to the identity of the perpetrator of the robbery but contends that there were no distinguishing characteristics common to both the instant offense and the extraneous offense so as to bear on the issue of identity, see Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974), and further, that the extraneous transaction in no wise rebutted the alibi. Johnson v. State, 509 S.W.2d 870 (Tex.Cr.App.1974).
      We agree with appellant, as did the trial court in his ruling, that the extraneous transaction was not shown to be relevant to the disputed issues raised by the alibi testimony and was therefore not admissible for the purpose of refuting it or the issue of identity.

        . Finley v. State, 573 S.W.2d 238 (Tex.Cr.App.1978); Grayson v. State, 481 S.W.2d 859 (Tex.Cr.App.1972); Johnston v. State, 418 S.W.2d 522 (Tex.Cr.App.1967); Flores v. State, 151 Tex.Cr.R. 478, 209 S.W.2d 168 (1948); Stone v. State, 147 Tex.Cr.R. 489, 182 S.W.2d 400 (1944); Locke v. State, 129 Tex.Cr.R. 432, 88 S.W.2d 110 (1936); Dallas Ry. and Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); Swinney v. Winters, 532 S.W.2d 396 (Tex.Civ.App. San Antonio, 1975, writ refd n. r. e.); Davis v. Zapata Petroleum Co., 351 S.W.2d 916 (Tex.Civ.App. El Paso, 1961, writ refd n. r. e.).

      . It is always required that the commission of the extraneous offense is clearly proved and the accused is shown to have been its perpetrator. Ransom, supra; see also 23 T.J.2d Evidence § 195 (1961).

      . Coleman v. State 577 S.W.2d 695 (Tex.Cr.App.1978); Buckner v. State, 571 S.W.2d 519 (Tex.Cr.App.1978); Finley, supra; Walls, supra; Halliburton v. State, 528 S.W.2d 216 (Tex.Cr.App.1975); Albrecht, supra [wherein it is stated at 100: “A relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown.”]

      . See also Albrecht, supra, wherein it is stated at 101:
      “Whether or not the State may prove a collateral crime is to some extent dependent on the burden of proof imposed upon the State, and the type of evidence which the State has to offer [or has offered] in proof of the essential elements of its case.”

      . This rule assumes that on direct examination the witness has made no “blanket statement concerning his conduct, such as never having been charged or convicted of any offense, or never having been ‘in trouble’.” Hoffman at 254.

      . Notwithstanding the trial judge’s charge to the jury to consider the extraneous offense only for the purposes of weighing the general credibility of the defense witnesses, his stated reason at the time of ruling it admissible was for the purpose of touching upon the motive of the witnesses to testify as they had.

      . But see Campbell v. State, 167 Tex.Cr.R. 321, 320 S.W.2d 361 (1959), wherein it was properly established that a defense witness had offered $10.00 to a prosecution witness to testify the defendant had not been intoxicated, in a driving while intoxicated case.


text:
    Francisco Javier CONTRERAS, Appellant, v. The STATE of Texas, Appellee.
    No. 61523.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 10, 1979.
    John W. Primomo, San Antonio, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

On original submission of this extradition case the appeal was dismissed Tex.Cr.App., 581 S.W.2d 486 for failure of the record to reflect a final judgment and for lack of an appellate brief. Both deficiencies have now been properly corrected, so we reinstate the appeal.

In the Governor’s Warrant and many of the supporting papers the offense here is corruptly called fondling. Included in the packet is a reproduction of the particular statute delineating the offense, Mississippi Code Annotated section 97-5-23 (1972). It is akin to our own V.T.C.A. Penal Code, § 21.10, entitled Sexual Abuse of a Child, but, as a comparison of the two excerpted in the margin below reveals, in Mississippi only a male person above the age of eighteen years may commit the offense.

An essential ingredient of an extradition request is that the accusing instrument supporting it “must substantially charge the person demanded with having committed a crime under the law” of the demanding state. Article 51.13, V.A.C.C.P.; Ex parte Burns, 167 Tex.Cr.R. 533, 322 S.W.2d 289 (1959). A corollary to that requirement, however, is the long standing rule in this State and elsewhere that the validity of a charging instrument will be left to the courts of the demanding State, Ex parte Gore, 162 Tex.Cr.R. 128, 283 S.W.2d 69 (1955), 35 C.J.S. Extradition § 14(6), unless “the accusation is clearly void,” Ex parte Bowman, 480 S.W.2d 675, 676 (Tex.Cr.App. 1972); Ex parte Rosenthal, 515 S.W.2d 114, 117 (Tex.Cr.App.1974); Ex parte Gideon, 493 S.W.2d 156, 157 (Tex.Cr.App.1973).

Whether the accusation before us is valid depends in turn on the constitutionality of the underlying Mississippi statute — an issue that is reserved to its courts and to the Supreme Court of the United States, Ex parte Key, 164 Tex.Cr.R. 524, 301 S.W.2d 90, 91 (1957); Ex parte Peairs, 162 Tex.Cr.R. 243, 283 S.W.2d 755, 757 (1955), dismissed 350 U.S. 858, 76 S.Ct. 104, 100 L.Ed. 762 (1955); 35 C.J.S. Extradition § 14(6). Happily that issue has, indeed, been recently determined by the Supreme Court of Mississippi in Tatro v. State, 372 So.2d 283, 285 (1979). It concluded that section 97-5-23 “is clearly discriminatory and unconstitutionally denies equal protection of the law to males and is, therefore, void.”

Accordingly, the judgment of the trial court is reversed and appellant is in all things discharged from the Executive Warrant of the Governor dated February 20, 1979.

It is so ordered.

      . As this Court observed in Almaguer v. State, 155 Tex.Cr.R. 531, 237 S.W.2d 631, 633 (1951), “The word ‘fondle,’ not having been defined in the statute, is used in the sense commonly known and understood. According to Webster, the term means, ‘To treat or handle tenderly or lovingly; caress’.”

      . In pertinent part, it provides, “Any male person above the age of eighteen years, who, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his body or any member thereof, any child under the age of fourteen years . shall be guilty of a high crime . .

      . In pertinent part, it provides, “A person commits an offense if, with intent to arouse or gratify the sexual desire of any person, he engages in deviate sexual intercourse with a child, not his spouse, whether the child is of the same or opposite sex, and the child is younger than 17 years.”

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.


text:
    Leonard W. ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 61798.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 10, 1979.

      Allan R. Manka, San Antonio, on appeal only, for appellant.
    Bill M. White, Dist. Atty., Lawrence J. Souza, Ron Mata and Monica L. Donahue, Asst. Dist. Attys., San Antonio, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

On his guilty plea before the trial court appellant was found guilty, punishment was assessed, application for probation was denied and sentence imposed. To an otherwise unexceptional procedure, appellant makes but two complaints. One is utterly without merit; the other evokes agreement from the State that corrective action is appropriate. Neither, however, requires a recitation of facts relating to the offense.

Appellant filed and presented a motion to suppress evidence, claiming an illegal arrest and search of his person while in a residence that was raided by peace officers pursuant to a search warrant. At hearing on the motion, through a witness called by the State, an affidavit for and the search warrant were admitted in evidence — without objection. When testimony from that witness was completed, appellant not only informed the trial court that he had no witnesses but also stated he did not believe there was anything wrong with the warrant. As already indicated, there was a guilty plea; it was taken during an exemplary admonishment by the trial court and is supported by a judicial confession of appellant and stipulated testimony, including contents of an offense report that detail his presence and activities as the search warrant was being executed. The trial court honored a plea bargain. The controlled substance, heroin, that was seized was not introduced into evidence. Under these circumstances a ground of error complaining that the trial court erred in overruling the motion to suppress is untenable. Mitchell v. State, 586 S.W.2d 491 (Tex.Cr.App.1979); Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978); Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974); cf. Isam and Medley v. State, 582 S.W.2d 441 (Tex.Cr.App.1979).

In sentencing appellant the trial court stated the term assessed would begin and operate from August 24, 1978, the date apparently appellant was returned to Bexar County from TDC under the bench warrant. The written sentence, however, reflects the date of November 17, 1978, that being the day on which it was imposed. With his complaint that the trial court erred in approving the latter contrary to express provisions of Article 42.03, V.A.C.C.P., the State concurs and also graciously points out that the sentence fails to reflect the further pronouncement of the trial court that the term of confinement in this instant cause is to “run concurrent with the sentence he is serving now.” However, the written sentence need not expressly so provide. See Ex parte Reynolds, 462 S.W.2d 605, 606 n. 1 (Tex.Cr.App.1970).

Therefore, as in Guerra supra, we reform the November 17, 1978 sentence in this cause to show mandatory credit for time served from August 24, 1978 and, as reformed, affirm the judgment of conviction.

The Clerk of this Court is directed to forward a copy of this opinion to the Texas Department of Corrections.

      . Having been bench warranted from the Texas Department of Corrections where he is serving time for two prior convictions, appellant is hardly a fit candidate for probation. Nevertheless court appointed counsel commendably saw to it that appellant was afforded the opportunity for consideration by the trial court. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . Section 2 of which mandates that the court “shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court.” Since Acts 1973, 63rd Leg., p. 205, ch. 91, § 2, granting such credit is no longer a matter of discretion, Guerra v. State, 518 S.W.2d 815, 817 (Tex.Cr.App.1975).


text:
    Michael Eugene PROCHASKA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 61926, 61927.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 10, 1979.
    Stanley G. Schneider, Houston, for appellant.

      Carol S. Vance, Dist. Atty., Larry P. Urquhart and J. Michael Wilkinson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

More than five years ago Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974) described the problem and held as follows:

“. . . [A]ppellant complains of the trial court’s failure to suppress the evidence obtained in a warrantless search of his residence. Overlooked by appellant in drafting this complaint and his ensuing argument is that he does not contend, and the record does not reflect, that any evidence obtained as a result of this search was introduced in evidence. Under these circumstances, no error is shown or presented for review.”

Contemporaneously this Court was holding as in Helms v. State, 484 S.W.2d 925, 927 (Tex.Cr.App.1972):

“Appellant contends that the court was in error in admitting evidence obtained as the result of an illegal search and seizure. Where a plea of guilty is voluntarily and understandingly made, all nonjurisdic-tional defects including claimed deprivation of federal due process are waived. (Citing cases.)”

See also Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977).

Effective August 29, 1977 the proviso added to Article 44.02, V.A.C.C.P. “abrogated this [Helms] rule regarding the effect of a guilty plea in cases of plea bargains before the court . . .,” Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Cr.App.1978), but the new practice does not change the rule in Stiggers, supra. Thus, “If the guilty plea is supported by evidence . independently of the matter contested in the pre-trial motion, then any erroneous ruling on that motion does not vitiate the conviction,” Ferguson, supra, at 910; see also Roberts v. State, 587 S.W.2d 724 (Tex.Cr.App., No. 61,798, delivered October 10, 1979); Mitchell v. State, 586 S.W.2d 491 (Tex.Cr.App., No. 59,860, delivered September 19, 1979); cf. Isam and Medley v. State, 582 S.W.2d 441 (Tex.Cr.App.1979).

The instant offenses are alleged to have occurred in December 1977, after the amendment to Article 44.02, supra, became effective. Appellant filed and presented a motion to suppress evidence of certain objects of personal property obtained by alleged illegal search and seizure of his residence and a motion to suppress a written confession made by him concerning theft of the automobile (and an unrelated burglary) and an oral statement made by him while in custody in which he physically pointed out one or more apartments he had burgled. Toward the conclusion of a hearing on both motions in both cases, appellant announced through his counsel that, after hearing the testimony adduced, “we would admit the validity of the written confession,” and the trial court, finding the oral confession was voluntarily made, overruled the motion to suppress confessions and, finding the property (except a pistol in another part of the place) was in full view as the officers talked to appellant, overruled the motion to suppress evidence.

The day following those pretrial hearings and rulings, after being carefully and fully admonished by the trial court, appellant entered his plea of guilty to both offenses. The State offered in support of the plea, see Article 1.15, V.A.C.C.P., a stipulation of evidence in each case in which, inter alia, appellant confessed to each and every element of each offense. On the evidence presented and admitted, the trial court found appellant guilty as charged in the indictments. Moving into assessment of punishment, its invitation to appellant to submit anything in the way of evidence as to punishment was declined by appellant’s counsel with the remark that “it’s already before the Court about the nature of the offenses. The testimony was given yesterday.” Ascertaining prior convictions and other background information, the trial court then assessed punishment and, appellant waiving ten days for motions and given allocution, imposed sentences, crediting him with time from December 29,1977. Appellant immediately gave notice of appeal.

There was no plea bargain. On the strength of Ferguson and Isam and Medley, supra, the State urges that the judgments of conviction be affirmed. But in Ferguson there was a negotiated plea and Isam and Medley, guilty pleas in a misdemeanor case, premised that the pleas were negotiated. What, then, is the rule in a case such as this where there is not a plea bargain?

Before the effective date of the Article 44.02 proviso the principle we have denominated the Helms rule was settled. It was first recognized in Hoskins v. State, 425 S.W.2d 825, 829-830 (Tex.Cr.App.1968) as originating in Bee v. Beto, 384 F.2d 925 (5 Cir. 1967) in which the court, citing earlier Fifth Circuit authority, held that by entering a guilty plea a Texas state defendant admitted all facts charged in the indictment and waived all nonjurisdictional defects. The principle was reiterated in Fierro v. State, 437 S.W.2d 833, 834 (Tex.Cr.App.1969) and applied to a plea of nolo contendere; followed in Soto v. State, 456 S.W.2d 389 (Tex.Cr.App.1970) and, of course, Helms, supra. Whether the plea was the product of negotiations, a bargain, is not alluded to in these decisions, probably because in those days participants in the criminal justice system pretended such a thing never occurred and rarely acknowledged the existence of one. Now, however, the process is not only admitted but encouraged by just such procedures legislatively established in the Article 44.02 proviso.

Yet, whatever the reasoning, the Legislature conditioned a departure from the Helms rule in two restrictive respects: one, that there be a negotiated recommendation as to punishment and, two, that the punishment actually assessed by the trial court not exceed the recommendation. In these circumstances permission of the trial court to appeal is not required “on those matters which have been raised by written motion prior to trial.” Given this limited abrogation of the Helms rule by the Legislature, we must reluctantly conclude that the rule remains viable in a case where a plea bargain has not been reached.

Accordingly, we hold that, having voluntarily and understandably entered a plea of guilty to the two indictments charging him with felony offenses of auto theft and burglary of a habitation, respectively, appellant waived his claimed deprivation of constitutional guarantees against unreasonable search and seizure and against admission of asserted defective confessions. Helms, Cantu, Hoskins and their progeny.

Further, we hold that, the record not reflecting that any evidence obtained as a result of the alleged illegal search was introduced in evidence during the plea hearing, error is not shown and nothing is presented for review in that respect. Stiggers, supra.

Finally, while the trial court obtained his agreement to do so and no doubt considered his extrajudicial confessions, still the admitted written sworn judicial confessions made and confirmed by appellant in open court fully sustain the convictions upon his guilty pleas under the provisions of Article 1.15, V.A.C.C.P. Cevalles v. State, 513 S.W.2d 865, 866 (Tex.Cr.App.1974) and cases cited therein. Each such judicial confession, being sufficient independent evidence of the guilt of appellant, is not tainted by any erroneous ruling on his pretrial motions and, therefore, the ruling may not vitiate the judgments of conviction. Ferguson and Isam and Medley, supra.

All grounds of error are overruled and the judgment of conviction is affirmed.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . Acts 1977, 65th Leg., p. 940, ch. 351, § 1.

      . In our cause number 61,926, the indictment alleges theft of an automobile on or about December 26, 1977; in number 61,927, the offense is burglary of a habitation on or about December 28, 1977 — with a different victim in each case. All proceedings in both cases were consolidated for purpose of pretrial and plea hearings.

      .We do not dwell on the facts surrounding the offenses, for sufficiency of the evidence is not challenged. As to the other matters, suffice it to say that acting on information peace officers came to appellant’s residence, asked to be and were freely admitted into it where and when they observed in open view several items of personal property they suspected, and later confirmed, were fruits of burglaries committed by appellant.

      . In a colloquy between the trial court and appellant the latter expressly agreed that the evidence offered during the pretrial hearing and his confession might be considered by the trial court in adjudging his guilt.

      . In our number 61,926, the confession read:
      “On December 26, 1977, in Harris County, Texas, I did appropriate property, namely, one automobile, owned by Bobby Minter, of the value of two hundred dollars and under ten thousand dollars, with the intent to deprive its owner of the property and without the effective consent of the owner.”
      In our number 61,927, the confession reads:
      “On December 28, 1977, in Harris County, Texas, I did with intent to commit theft, enter a habitation not then open to the public, owned by Doris Elder, hereafter styled the Complainant, without the effective consent of the Complainant.”

      . It has long been true in Texas that a plea of guilty to a felony offense entered before the trial court alone constitutes an admission of guilt, but since 1931 does not authorize a conviction; see, e. g., Burks v. State, 165 S.W.2d 460, 463 (Tex.Cr.App.1942). The really significant consequence of the Helms rule is the waiver of all nonjurisdictional defects by entering a plea of guilty or of nolo contendere.

      . Even efforts to avoid the “waiver consequences” by entering a plea of nolo contendere with an express understanding that the right of appeal to test an alleged constitutional violation was preserved, where thwarted, as in Killebrew v. State, 464 S.W.2d 838 (Tex.Cr.App.1971).

      . As the Court perceived in Ferguson, supra: “Such a procedure may be expected to conserve judicial resources by encouraging guilty pleas in cases where the only contested issue between the parties in some matter such as the lawfulness of a search, voluntariness of a confession, competency to stand trial, sufficiency of the indictment, or other matters that may be raised by written motion filed prior to trial.”

      . When the Article 44.02 proviso is applicable, as was explained in Isam and Medley, supra: “Thus, if a defendant elects not to make a judicial confession, and if the seized evidence to which a pretrial motion to suppress was directed is used by the State to meet that statutory burden (of Article 1.15, V.A.C.C.P.), then the issue raised by the motion may be pursued despite the subsequent guilty plea.”


author: W. C. DAVIS, Judge.

text:
    Benjamin Dale ALEXANDER, Appellant, v. The STATE of Texas, Appellee.
    No. 55916.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 17, 1979.

      William R. Cummings, New Caney, for appellant.
    James H. Keeshan, Dist. Atty. and J. C. Durst, Asst. Dist. Atty., Conroe, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for the possession of heroin, with intent to deliver. Punishment was assessed by the jury at 99 years confinement.

In his first ground of error, appellant contends that the evidence is insufficient to corroborate the testimony of an accomplice witness, and that, thus, the evidence is insufficient to show that he possessed the heroin. We agree.

The record reflects that on May 30, 1975, narcotics agent Raymond Jones received some information about some heroin. On the basis of that information, Officers Ray and Burns undertook surveillance at a residence on Cochran Street on the morning of May 31, 1975. Officer Jones joined them there later. Later that evening, around 8:30-8:45 p. m., Tim Fraley was arrested leaving the residence. Jones testified that the officers received information from Fra-ley that there was more heroin inside the house and that more drugs would be arriving later. Based on this information, the officers entered the residence. Inside the residence were Albert Fulton and his wife and Gary Alley and his girlfriend. The parties were searched, and heroin was found on Fulton and Alley. They were placed under arrest.

Officer Jones testified that the officers were told by Fulton and Alley that more drugs would be arriving later on that evening, brought by two persons referred to as “Ben” and “Bobbie” (a female), who would be driving a dark blue Cadillac, to arrive around 10:30-11:00 p. m. The officers remained at the residence on the basis of that information.

At around 11:00 p. m., a dark blue Cadillac, driven by a woman, pulled up into the driveway. The passenger in the vehicle, later identified as appellant, got out of the car and went to the front door of the residence. He was asked inside. Meanwhile, an officer approached the driver of the car, later identified as Bobbie, and brought her into the house also. Inside the residence, “Ben,” or appellant, was searched. No contraband was found on him. Bobbie was also searched, and two small packets, later found to contain heroin, were found on her, one hidden in her bra and another on top of her head, underneath her wig. On this basis, both appellant and Bobbie were placed under arrest. A search of the blue Cadillac revealed no more contraband.

Albert Fulton testified on behalf of the State, and stated that during the day before the arrests, he had spoken to appellant on the telephone, and that appellant was supposed to come to the residence at about 10:30 p. m. to bring him heroin. He testified that he had previously bought heroin from appellant on several occasions, and that he had met Bobbie once before in the company of appellant. He also testified that since the arrests, appellant had threatened him twice if he testified. Fulton also stated that he had asked appellant why he had not had the heroin on him, and that appellant had stated that he gave the heroin to Bobbie because of the presence of cars in the driveway of the residence.

Further testimony showed that the blue Cadillac in which the two were riding belonged to appellant.

The trial court instructed the jury on the law of accomplice witnesses and on the law of parties. The jury then found appellant guilty of possession of the heroin found on Bobbie.

In order to establish unlawful possession of a controlled substance, the State must prove that the defendant exercised care, control and management over the contraband and that the defendant knew that the matter possessed was contraband. Weirsing v. State, 571 S.W.2d 188 (Tex.Cr.App.1978); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1977). Possession of the controlled substance need not be exclusive, and evidence which shows that the defendant jointly possessed it with another is sufficient. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976). The mere presence of the defendant at a place where the substance is possessed does not, in itself, justify a finding of his joint possession. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Woods v. State, supra.

Where the accused is not in exclusive control of the place where the substance is found, it cannot be concluded that he had knowledge of the contraband or control of it unless there are additional independent facts and circumstances which affirmatively link the defendant to the contraband. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App.1974); Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972). This affirmative link is established by showing additional facts and circumstances which indicate the defendant’s knowledge and control. Weirsing v. State, supra; Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra.

Therefore, it is necessary to examine the record before this Court in order to find an affirmative link between appellant and the contraband. The record reflects that heroin was found secreted on the person who accompanied appellant that evening, and who was driving his car. There was no evidence that appellant gave any inculpatory statements, or conflicting stories, or that he appeared nervous or made any furtive gestures or attempts to flee. The heroin was hidden on Bobbie and was not within plain view. No heroin was found on appellant, or in his automobile.

The major source of the testimony connecting appellant to the heroin came from Albert Fulton, who testified that appellant was to deliver heroin that evening and that he had been involved in heroin transactions in the past. However, Article 38.14, Vernon’s Ann.C.C.P., provides that:

“[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending- to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

Further, the Controlled Substances Act, Tex.Rev.Civ.Stat.Ann., Article 4476-15, Sec. 1.02(8), provides, in part:

“Proof of an offer to sell [a controlled substance] must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.”

In Carillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978), we reiterated that:

“[t]he test as to the sufficiency of the corroboration [of the accomplice-witness testimony] is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not.”

See also, Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). The mere showing that an offense occurred is not sufficient corroboration. Carillo v. State, supra; Windham v. State, 479 S.W.2d 319 (Tex.Cr.App.1972). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt, Carillo v. State, supra; Atwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); it need only make the accomplice’s testimony more likely than not. Carillo v. State, supra; Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

Thus, we turn to an examination of the record to ascertain what other evidence adduced at trial could corroborate Fulton’s testimony that the heroin belonged to appellant. The record reflects that Officer Jones testified extensively concerning information which he received from Fraley, Fulton and Alley that appellant was going to deliver the heroin to them. However, Officer Jones’ testimony in this regard was clearly hearsay, since these out-of-court statements were offered to prove their truth, i. e., that appellant was possessing heroin and was intending to deliver it. In Ex parte Herbert, we reiterated that hearsay evidence, even admitted without objection, constitutes no evidence and is without probative force. Hanna v. State, 546 S.W.2d 318 (Tex.Cr.App.1977); Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975); Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr. App.1975). Thus, we are constrained to hold that Officer Jones’ testimony concerning appellant’s possession of the heroin was without probative force and, therefore, cannot be considered as evidence in corroboration of the accomplice witness’ testimony.

The only other testimony given by Officer Jones was that:

“[Appellant] on that evening appeared to be under the influence of what I thought at first to be an intoxicating beverage, but I could not smell anything on his breath.”

No other evidence concerning appellant’s physical condition was offered. There is no testimony that he was under the influence of heroin, or that he acted like or appeared like someone under the influence of heroin. There was no testimony that needle marks were observed on his arms. Although Officer Jones testified that he could not smell alcohol on appellant, there was no testimony as to how close he ever got to appellant or whether he was ever in close enough proximity to appellant to be in a position to smell alcohol. We recognize that a defendant’s being under the influence of some substance can sometimes be one factor in establishing an affirmative link between that defendant and a controlled substance. However, in the instant case, it would be speculation for us to assume that appellant was under the influence of heroin, which would tend to link him to the contraband found on his companion. We do not find this bit of evidence alone to be sufficient to tend to connect appellant to the offense or to make the accomplice witness’ testimony more likely than not.

Thus, after a careful search of the record, we are compelled to conclude that there was no evidence adduced at trial to corroborate the testimony of the accomplice witness as required by Article 38.14, supra; and Article 4476-15, Sec. 1.02(8), supra.

Appellant was not found in immediate possession of the heroin, and the accomplice witness provided the testimony which would establish appellant’s possession of the heroin. Since we conclude that the evidence is insufficient to corroborate this testimony, we must also conclude that the evidence is insufficient to sustain appellant’s conviction for the possession of heroin. While the evidence adduced at trial may certainly raise a strong suspicion of appellant’s guilt, this is not sufficient for conviction beyond a reasonable doubt.

Accordingly, the judgment is reversed and remanded to the trial court with instructions to enter a judgment of acquittal.


text:
    Kenneth Walter ADRIAN, Appellant, v. The STATE of Texas, Appellee.
    No. 57088.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 17, 1979.
    Richard W. Crews, Jr., Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction of arson pursuant to V.T.C.A. Penal Code, Sec. 28.02. Punishment was assessed at three years.

Appellant’s sole ground of error on appeal is that the evidence is insufficient to support the judgment of conviction in that the State failed to establish the corpus de-licti of arson, independent of appellant’s confession. We agree.

The State introduced eight witnesses in its case-in-chief. Iva Carpenter testified that on the afternoon of May 12, 1975, Richard Gaston told her, in the appellant’s presence, that he would be gone that night fishing and asked if she would keep an eye on his wife and child. Carpenter testified that at approximately 1:30 a. m. that night, she was awakened by the sound of the appellant’s door slamming. At 2:00 a. m., she got out of bed and discovered a ball of fire over the Gaston’s trailer. Carpenter said she had been restless and uneasy because of two other fires in the trailer park within the last two months.

Carpenter and her husband were fighting the fire when she saw the appellant enter the burning trailer. She did not see him leave, but shortly thereafter saw him in the crowd, smoking a cigarette. About an hour after the fire was out, ambulance attendants arrived, saying they had received a call from a man who had been overcome by smoke. They went to the appellant’s trailer where they found him standing at his desk beating on his chest, hollering, “Nobody cares anything about me, they’re just going to let me die.”

Carpenter’s son-in-law, William Bender, next testified that he was the owner of the damaged trailer and that he had not given anyone permission to burn it.

Janis Gaston testified that she and her son were in the trailer asleep when she awoke and smelled smoke. Shortly thereafter, she heard Iva Carpenter screaming for her. She further testified that the fire appeared to have been started in the garage below the trailer.

Richard Gaston testified that the trailer was on fire when he arrived home. The appellant was standing by the garage door and helped Gaston pull a jeep out of the garage.

A neighbor testified that she had seen the appellant in the crowd, “leering.”

Sometime after the fire, a pair of blue jean cut-offs, believed to belong to the appellant, were found on a clothes line.

The last three witnesses for the State testified concerning the confession of the appellant.

The appellant’s confession was admitted into evidence. It stated in pertinent part:

“I went outside and walked around, I don’t know what time it was, I just walked around, I opened the doors to the garage that had a trailerhouse above it and went into the garage, there was a Jeep inside and I walked to the right side of the Jeep and there was plastic covering at the side of the Jeep, this will be to the right side, hanging from a rafter. Then I lit the plastic on fire with a match and I put the match in my pocket of my cut off jeans. This was all I had on, then I walked out and went back to bed and went to sleep. After a while Jeanette woke me up and told me about a fire that was next to my trailer. I went out and helped some people move a Jeep and motorcycle out of the garage that I had set on fire, then I went up to the trailerhouse that was on fire and grabbed a blanket and wet it under the faucet that was in the kitchen and put the fire out that was burning in the bedroom, then I went outside and went back to my trailer. I had trouble breathing so I went to the Coast Guard pay phone and called the operator and told her I needed an ambulance where there had been a fire next to the Coast Guard station. I went back to my trailerhouse and waited for the ambulance.”

This was the total sum of the State’s case against the appellant. The State did not call any witnesses to testify as to the possible causes of the fire. Apart from the appellant’s confession, there is no evidence that the fire was intentionally set.

It is well established that the extrajudicial confession alone is insufficient to sustain a conviction. Brown v. State, 576 S.W.2d 36 (Tex.Cr.App.1978); R.C.S. A Juvenile, v. State, 546 S.W.2d 939 (Tex.Civ.App.1977); Smith v. State, 363 S.W.2d 277 (Tex.Cr.App.1963). The confession must be corroborated by evidence that a crime has been committed, i. e., the corpus delicti must be proven.

To establish the corpus delicti of arson, the State must show that the house was designedly set on fire by someone. Bussey v. State, 474 S.W.2d 708 (Tex.Cr.App.1972); Zepeda v. State, 139 Tex.Cr.R. 258, 139 S.W.2d 820 (1940). In Miller v. State, 566 S.W.2d 614, 618 (Tex.Cr.App.1978), the Court stated:

“It is clear that the offense of arson still requires that the fire involved be of an incendiary origin. This is implicit in the requirement that the burning be intentional.”

In the case at hand, there is no question that a fire occurred. However, there is no evidence apart from the appellant’s confession that the fire was deliberately set. There is no testimony as to the cause of the fire, nor did the State attempt to negate the possibility that the fire resulted from defective electrical wiring, a defective water heater, spontaneous combustion or any other manner. See Bussey, supra.

In Duncan v. State, 109 Tex.Cr.R. 668, 7 S.W.2d 79 (1928), this Court reversed an arson conviction where, apart from the defendant’s confession, the only evidence introduced by the State to prove that a crime was committed was the testimony of the city fire marshal, stating that he had examined the premises and could not determine the cause or the origin of the fire. The Court then stated:

“Proof that a fire occurred of itself obviously does not prove that the crime of arson has been committed by some one. The record is without any evidence suggesting any connection of appellant with this fire or that such a fire was incendiary except what is contained in the alleged confession of appellant.”

The State has failed to prove the corpus delicti of arson in that there is no evidence to corroborate the appellant’s confession establishing that the fire was caused by a criminal act.

Accordingly, the judgment of conviction is reversed and remanded to the trial court with instructions to enter a judgment of acquittal.


text:
    Ex parte Louis DUGAS, Jr.
    No. 62345.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 17, 1979.
    Stella Saxon, Orange, for appellant.
    William C. Wright, County Atty. and Stephen C. Howard, Asst. County Atty., Orange, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an original habeas corpus application brought on behalf of an attorney who was held in contempt by the 260th District Court of Orange County.

Louis Dugas was retained to represent Galen Ray Herman in a criminal case pending against him in the 260th District Court. On May 17, 1979, Dugas filed in that cause a motion to withdraw as attorney for Herman. The motion was set for a hearing the next day and was overruled. On that same day, May 18, the trial court issued an order in Herman’s case, directed to Dugas, which recited:

“You are hereby ORDERED to appear before this Court at 2:00 P.M., Monday, May 21, 1979 for the purpose of jury selection in the above numbered and entitled case. Failure to do so may be contempt of this Court and may result in a warrant being issued for your arrest.”

On May 21 Dugas failed to appear as directed in the order of May 18. A capias issued and he was arrested and brought before the court. He was then released and ordered to appear on June 1 to show cause why he should not be held in contempt for failure to obey the order of May 18. On June 1 the court found Dugas was in contempt of court for violating the May 18 order, and, according to the docket sheet, he was again released pending a determination of the contempt charges by another judge, pursuant to Art. 1911a, Sec. 2(c), Y.A.C.S. That hearing was held on July 23, and concluded with an order finding Dugas in contempt and assessing his punishment at a fine of $500.00 and four days in jail. From this order Dugas seeks habeas corpus relief.

Among the contentions raised in this proceeding, it is asserted that the July 23 order is void for lack of certainty as to the act or acts of contempt and the order or orders violated. The finding of fact in the July 23 order recites:

“and it appearing to the Court that Defendant Louis Dugas, Jr. is Guilty of Contempt of the Orders of the 260th District Court in failing and refusing to select a Jury on Monday, May 21, 1979 in the case of the State of Texas vs. Galen Ray Herman, all of which occurred in the Courthouse of Orange County, Texas situated in Orange, Texas.”

Petitioner argues that this judgment is vague and uncertain as to what order or orders of the court he did not obey. The State in its brief responds that all elements of the contempt occurred on May 21, and that the only orders issued on that date to proceed to trial prior to the preliminary contempt ruling “were the verbal [oral?] orders of Judge Burgess.” The show cause order, however, did not allege any violation of an order issued on May 21. It specifically alleged that petitioner violated the written order of May 18 that he “appear before the Court at 2:00 P.M., Monday, May 21, 1979 for the purpose of jury selection.”

The contempt order of July 23 does not recite a finding that petitioner failed to appear in violation of the May 18 order, as alleged in the show cause order. Even the State in its brief construes the contempt finding as referring to violations of an order other than the one alleged in the show cause order. Also, the acts alleged, compared to those found, are at variance. The show cause order alleged a failure to appear while the contempt order found a failure and refusal to select a jury.

Because the show cause order and contempt order are at variance as to the order violated and the acts committed, the contempt order must be set aside.

It is so ordered.


author: TOM G. DAVIS, Judge.

text:
    Walker CADD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 55259.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 17, 1979.

      Carl Steckelberg, Walter M. Hall, Midland, for appellant.
    Vern P. Martin, Dist. Atty. and Timothy A. Sloan, Asst. Dist. Atty., Midland, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Our opinion on original submission is withdrawn.

Appeal is taken from a conviction for forgery. Punishment, enhanced by two pri- or felony convictions, was set at life.

Appellant cashed a forged check at the M System Food Store in Midland on November 8, 1975. The check named appellant as payee and D. M. Sheppard Cons. Co. as maker. The drawee bank, Midland National Bank, refused to honor the check. Guy Burleson, operations officer of the bank, testified that the bank had never had an account for D. M. Sheppard Cons. Co.

In his first two grounds of error, appellant contends that the trial court erred in overruling his objection and refusing to instruct the venire panel to disregard a statement made by the prosecutor during voir dire. Specifically, he complains of the following statement:

“MR. WALL (prosecutor): And it may become your responsibility to assess a penalty against an individual, again assuming you have found him guilty of the offense as charged.
“Likewise, at that stage of the proceeding you may or may not, under appropriate circumstances, get to hear evidence about the reputation of the accused. There may also be evidence about a prior criminal' record, assuming that it is an individual who has one.”

Appellant maintains that the above statement constituted an assertion by the State that appellant had a prior criminal record.

In Woods v. State, Tex.Cr.App., 569 S.W.2d 901, we considered a similar statement made by a prosecutor during voir dire. In that case, the prosecutor informed the venire panel that during the punishment phase of the trial, “the defendant’s” or “a defendant’s” prior criminal record could be introduced and considered for punishment purposes. We found no error in the challenged statement in that it did not inform the panel that the particular defendant on trial had a prior criminal record and that the statement was a correct explanation of Art. 37.07, V.A.C.C.P. Woods v. State, supra at 905. Likewise, we find that in the instant case, the prosecutor’s statement did not indicate that appellant had a prior criminal record which could be considered during the punishment phase. We conclude that the trial court did not err in overruling appellant’s objection and refusing to instruct the jury to disregard the challenged statement. No error is shown.

In his third ground of error, appellant contends that the trial court erred in failing to grant a mistrial when the State paraded a cast of witnesses before the jury which suggested that appellant was known to be a criminal figure.

The record reflects that prior to trial, the court ordered appellant to provide a handwriting sample. Appellant refused to comply with the court’s order.

The Honorable James Mashburn, District Attorney of the 142nd Judicial District, was called for the purpose of identifying a sample of appellant’s handwriting which he had in his possession. Mildred Green, Chief Deputy District Clerk, was called as a witness in order to identify a sample of appellant’s handwriting. Officers Frank Bartlett and Boyce Land of the Midland Police Department were called for the purpose of identifying three samples of appellant’s handwriting. All of these samples were subsequently used by the State for comparison purposes when the handwriting expert testified that in his opinion, appellant wrote the check in question.

We find appellant’s contention that the State should have sought out samples of appellant’s handwriting from various nongovernmental agencies to be without merit. We hold that as long as the proper predicate is laid for introduction of a handwriting sample, the source from which it is derived is immaterial. Appellant’s third ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court abused its discretion in denying his motion for the appointment of a handwriting expert. Appellant was charged under a two-count indictment with forgery by possession and forgery by making. The State elected to proceed with the charge of forgery by possession. A handwriting expert from the Midland Police Department testified and was subject to extensive cross-examination by appellant’s counsel.

In a pre-trial hearing on appellant’s motion for the appointment of the expert, appellant was unable to inform the court as to the fee which would be charged by the expert. Appellant suggested that he would retain the expert and pay his fee and then ask the court to reimburse him for the expert’s fee.

Art. 26.05, § 1(d), V.A.C.C.P., provides for compensation “[f]or expenses incurred for purposes of investigation and expert testimony . . . ” We find that the trial court did not abuse its discretion in refusing to grant appellant a blank check in other to retain a handwriting expert. Furthermore, appellant has shown no harm as a result of the alleged abuse of discretion. As noted above, the State elected to prosecute on the count alleging that appellant possessed the forged check and not that he made the forged check. Absent a showing of harm, we find no abuse of discretion. See, Freeman v. State, Tex.Cr.App., 556 S.W.2d 287; Myre v. State, Tex.Cr.App., 545 S.W.2d 820. No error is shown.

In his fifth ground of error, appellant contends that the evidence is insufficient to support the conviction in that the check appellant possessed was not endorsed. He maintains that the unendorsed check was an object without value.

The record reflects that the check in question was payable to appellant. The check was cashed at the food store without appellant’s endorsement.

The intent to defraud or harm is the gist of the offense of forgery under V.T.C.A., Penal Code, Sec. 32.21. Stuebgen v. State, Tex.Cr.App., 547 S.W.2d 29. Thus, the instrument in writing need not be one such as to create, increase, diminish, discharge or defeat any pecuniary obligation. See, Martinez v. State, Tex.Cr.App., 551 S.W.2d 735. We find that the unendorsed check which appellant negotiated was a writing the subject of forgery under Sec. 32.21, supra. Appellant’s fifth ground of error is overruled.

In his sixth ground of error, appellant contends that the trial court erred in refusing to submit his requested charge on circumstantial evidence. He maintains that there was no direct evidence of his intent to possess a forged instrument.

Armondo Bonilla testified that he was a grocery checker for M System Food Store in Midland. He stated that on November 8, 1975, appellant asked him to cash a check payable to appellant in the amount of seventy-five dollars. Fred Reed testified that as assistant manager of the store, he authorized payment of the check. Reed identified appellant as the individual who presented the check to Bonilla.

An instruction as to circumstantial evidence is not required when the main fact is proved by direct testimony and only the question of the defendant’s intent is to be inferred from the circumstances. Williams v. State, Tex.Cr.App., 567 S.W.2d 507; Little v. State, Tex.Cr.App., 567 S.W.2d 502. There being direct evidence from the witnesses that appellant was the individual who possessed the forged instrument, no charge on circumstantial evidence was required. See, Van Buskirk v. State, Tex.Cr.App., 492 S.W.2d 279. We find that the trial court did not err in refusing to submit appellant’s requested charge on circumstantial evidence. Appellant’s sixth ground of error is overruled.

In his seventh ground of error, appellant maintains that the evidence is insufficient to support the conviction. He contends that the State did not offer any evidence to overcome appellant’s sworn denial of his signature under Art. 38.27, V.A.C.C.P.

Officer Roger Meurer of the Midland Police Department testified that he had examined a handwriting sample from appellant as well as the check in question. He testified that in his opinion, the check had been written by appellant. Prior to trial, appellant filed a document styled “Defendant’s Denial of Signature” in which he denied under oath that the handwriting on the check was his own. This document was not offered into evidence, nor did appellant testify to this matter at trial.

Art. 38.27, supra, provides:

“It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof of comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.”

Art. 38.27, supra, replaced Art. 731, V.A. C.C.P. (1925). In Newby v. State, Tex.Cr.App., 384 S.W.2d 133, we held that the testimony of the State’s witness identifying the defendant as the individual who presented the forged check to him was sufficient to corroborate the testimony of the handwriting expert and take the case out of former Art. 731, supra.

In the instant case, we find that the testimony of Bonilla and Reed identifying appellant as the individual who presented the forged check was sufficient to corroborate the testimony of the handwriting expert and take the case out of Art. 38.27, supra. Appellant’s seventh ground of error is without merit.

In his eighth ground of error, appellant contends that the trial court erred in denying his motion to dismiss for failure to provide a speedy trial. The record reflects that appellant was indicted on January 21, 1976, and tried on April 9, 1976.

This prosecution occurred prior to the time limitations now provided for in Art. 32A.02, V.A.C.C.P. Therefore, in determining whether appellant was denied a speedy trial, we will consider factors such as the length of delay, the reason for the delay, appellant’s assertion of the right, and any prejudice or harm appellant may have suffered as a result of the delay. See, Carney v. State, Tex.Cr.App., 573 S.W.2d 24; Grayless v. State, Tex.Cr.App., 567 S.W.2d 216.

In the instant case, appellant does not allude to any harm or prejudice he suffered as a result of the delay, nor, do we find that a ten week period between the time of indictment and trial is an unreasonable delay. We further note that appellant dismissed the first attorney the court appointed for him upon appellant’s assurance that he would retain counsel. When retained counsel's fee was not paid, he withdrew, and the court appointed a second attorney for appellant. We conclude that the trial court did not err in denying appellant’s motion to dismiss for failure to provide a speedy trial. Appellant’s eighth ground of error is overruled.

On original submission, the panel concluded there was fundamental error in the court’s charge to the jury. Appellant was charged by indictment with possession of a forged writing with intent to pass it. V.T. C.A., Penal Code, Sec. 32.21(a)(1)(C). The court’s charge instructed the jury to convict if they found that appellant possessed a forged writing with intent to issue it.

We note that the jury charge in question was requested by appellant and submitted to the jury exactly as it was requested except for two paragraphs not material to the question here presented. The record reflects that the following occurred before the charge was read to the jury:

“MR. STECKELBERG (defense counsel): Comes now the Defendant, Walker Cadd, Jr., and makes his objections to the proposed Charge of the Court, prior to final argument, and tenders as an exhibit herein the proposed Charge of the Defendant, which was accepted by the Court in all respects except that Paragraph 5 and 7 were deleted therefrom.
“MR. WALL (prosecutor): Your Honor, let the record reflect, as Counsel has said, that the Court has accepted basically the Charge prepared for the Court by the Defendant, with the exceptions outlined by Counsel for the Defendant.”

We have held many times that an accused cannot invite error and then complain thereof. Thomas v. State, 131 Tex. Cr.R. 396, 98 S.W.2d 827; Holmes v. State, 140 Tex.Cr.R. 619, 146 S.W.2d 400; and Ex parte Guerrero, Tex.Cr.App., 521 S.W.2d 613. Consequently, if a defendant requests a charge and that charge is given just as requested, he is in no position to complain of any error therein. Stiles v. State, Tex.Cr.App., S.W.2d 894; Criswell v. State, 171 Tex.Cr.R. 206, 346 S.W.2d 341; Trevino v. State, 171 Tex.Cr.R. 22, 343 S.W.2d 700; Gage v. State, 159 Tex.Cr.R. 336, 263 S.W.2d 553; Carriger v. State, 153 Tex.Cr.R. 390, 220 S.W.2d 169; and Herrera v. State, 143 Tex.Cr.R. 96, 157 S.W.2d 363. We find that the appellant is in no position to complain since the charge given by the court was requested by appellant.

We have examined appellant’s pro se brief and find same to be without merit.

The State’s Motion for Rehearing is granted and the judgment is affirmed.

      . See Hammett v. State, Tex.Cr.App., 578 S.W.2d 699.


author: PHILLIPS, Judge.

text:
    Carlos A. CABALLERO, Appellant, v. The STATE of Texas, Appellee.
    No. 56745.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 17, 1979.

      Robert A. Valdez, Antonio G. Cantu, San Antonio, on appeal only, for appellant.
    Bill M. White, Dist. Atty., Keith W. Burris, James W. Blagg, E. Dick Ryman and Lisa M. Beck, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

Appellant’s conviction was reversed and remanded by this Court due to error which occurred in the hearing on appellant’s competency to stand trial. The State has filed a motion for rehearing and urges this Court to reconsider the disposition of this case in light of Brandon v. State (No. 59,348, decided April 25, 1979), which was decided the same day as this case.

In Brandon this Court held that the defendant did not receive a fair determination of his competency to stand trial, but that no error occurred in the trial on the merits. We abated the appeal and remanded the cause to the trial court to empanel another jury to make a retrospective determination of the appellant’s competency to stand trial. The State contends that we should dispose of this case in the same manner. We agree and withdraw the prior opinion.

As we pointed out in Brandon, supra, there are difficulties inherent in making a retrospective determination of a defendant’s competency to stand trial. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky v. U. S., 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). These difficulties include passage of time, present recollection of expert witnesses who testified at the original hearing, and ability of the judge and jury to observe the subject of their inquiry. Pate v. Robinson, supra; Brandon v. State, supra. However, there is ample Federal and State authority that a retrospective determination of competency can be made within the limits of due process, depending on the facts of the particular case. See the exhaustive compilation of cases in Brandon v. State, supra. Since Brandon was decided, this Court has ordered that retrospective competency hearings be held. See Ex parte McKenzie, 582 S.W.2d 153 (Tex.Cr.App.1979); Ex parte Winfrey, 581 S.W.2d 698 (Tex.Cr.App.1979).

The competency hearing and trial in this cause took place three years ago. At the competency hearing appellant called several witnesses, including relatives, and the State called two expert witnesses to testify as to appellant’s competency to stand trial. Those witnesses should be available to testify at the present time. The State’s witnesses administered psychological tests to appellant and presumably the records of those tests are still available. We conclude that a retrospective determination of appellant’s competency to stand trial is feasible.

We have examined appellant’s contentions concerning the trial on the merits and have concluded that no reversible error is shown. In the event that the new competency jury finds that appellant was competent to stand trial, we now discuss these contentions.

At the guilt/innocence phase of the trial on the merits, the State called Dr. Betty Schroeder, a psychologist employed by Bexar County, to testify concerning a psychological examination of appellant which she conducted prior to trial. At one point the prosecutor asked Dr. Schroeder whether appellant was able to communicate with her and recall events. Dr. Schroeder replied:

A Yes; very carefully and very thoroughly. He provided a great deal of information.
Q All right, just what kind of information did he provide to you?
A The information, specifically, were his plans for the murder of his wife and her boyfriend, which he indicated, “I wanted to kill them both — I bought a pistol. I waited for a month. I wanted to catch them both.”
Those are quotes. I took it down specifically. (Indicating.)

Appellant contends that the admission of the statement made by appellant to Dr. Schroeder violated Article 46.02(3)(g),' V.A. C.C.P. That Article provides:

No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.

The admission of the statement was clearly error. Although appellant did not object to the admission of the statement, this Court has held that the error cannot be waived because the statute is too clear and absolute to be held subject to waiver. Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App. 1975, Opinion on Appellant’s Motion for Rehearing). It was pointed out in Ballard, however, that “such an error may be rendered harmless, as when the accused admits the making of the statements.” In Smith v. State, 502 S.W.2d 814 (Tex.Cr.App.1973), cited in Ballard, the admission of an incriminating statement made by the defendant during a psychiatric examination was found to be harmless error because the same statements were made in appellant’s written confession which was admitted in evidence. In this case, as in Smith, appellant confessed to the same facts as were testified to by the State’s witness.

Appellant gave two detailed and lengthy statements in which he confessed to the murder of his wife. Both confessions were read to the jury and admitted in evidence. In the confessions appellant stated that for two months previous to the offense he suspected that his wife was seeing another man. He also stated:

. Since I started feeling that my wife was cheating on me I have been telling her that if I ever caught her I would kill her. I guess I have been thinking about killing her for about a month. .

Appellant further confessed that on the date of the offense he left the house as if to go to work but instead he hid his car and, armed with a pistol, went back to the house to observe his wife’s activities. He stated that he took his pistol with him because it was his intention to kill his wife if he caught her with another man. In the face of this evidence, we cannot say that the admission of appellant’s statement to Dr. Schroeder was prejudicial to appellant. Reversible error is not shown.

Appellant also complains that Dr. Schroeder testified from notes taken by an assistant during a preliminary examination of appellant. Appellant contends this was hearsay testimony. Dr. Schroeder testified that her associate, who was a licensed psychological associate, saw appellant on April 28, 1976, and did the “basic testing.” This involved administering a reading test and a mathematics test and taking down basic “social information” about appellant. According to Dr. Schroeder these tasks did not require the expertise of a psychologist. Dr. Schroeder testified that she verified her associate’s work and went through the social information again in more depth when she examined appellant. Dr. Schroeder did not testify as to the results of the tests which her associate rendered, nor did she testify from any notes which her associate took. Moreover, a doctor can testify from laboratory records as to the results of a test by another person where the analysis is under his supervision or control. See Grant v. State, 472 S.W.2d 531 (Tex.Cr.App.1971); Dagley v. State, 394 S.W.2d 179 (Tex.Cr.App.1965). No error is shown.

Finally, appellant complains of a comment made by the prosecutor during the trial on the merits. Appellant was convicted of shooting his wife to death while his wife was driving appellant and their four-year-old daughter to appellant’s grandmother’s house. The daughter was sitting between appellant and her mother when appellant committed the murder. The State called San Antonio Police Officer Albert Harris to testify concerning what occurred when he arrived at the scene of the offense. The prosecutor asked Harris:

Q All right, while the defendant was there present during your conversation with this little girl, would you tell us, please, what the little girl told you in regard to the shooting?
MR. VALDEZ: Well, I think Your Honor, that number one, the best evidence would be the little girl. The little girl has been subpoenaed.
And I'm going to object to it as not being the best evidence.
THE COURT: I’m going to sustain at this point.
MR. BURRIS: Your Honor, the little girl is in a state of shock. We can’t have any best evidence.

Appellant objected to the prosecutor’s remark that the daughter was in a state of shock; the court sustained the objection and instructed the jury to disregard the remark and not consider it for any purpose in its deliberation. Appellant’s motion for mistrial was denied.

The evidence showed that the daughter was present at the commission of the offense, and it is reasonable to conclude that she was severely traumatized by the offense. The remark was not so prejudicial that the court’s instruction could not remove its harmful effect. See Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977); Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977). No reversible error is shown.

The cause is abated and remanded to the trial court to empanel a jury and conduct a competency hearing within 90 days to determine whether appellant was competent to stand trial at the time of his trial in September 1976. A record of that proceeding shall be prepared in the manner required by Article 40.09, V.A.C.C.P., and transmitted to this Court for further disposition.

It is so ordered.


text:
    Benjamin Franklin LOCKHART, Appellant, v. The STATE of Texas, Appellee.
    No. 60216.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 17, 1979.
    Rehearing Denied Nov. 28, 1979.
    Robert A. Heath, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Michael Hinton, Asst. Dist. Attys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

This cause was reversed on original submission. We withdraw that opinion and reverse upon another ground. The punishment assessed was not authorized by the indictment.

Although not briefed, it is noted that the indictment alleges murder by malpractice under Article 1200, the former Penal Code, but it does not allege that it was done with malice aforethought. Without such an allegation, the murder could be only without malice. The maximum punishment for murder without malice was five years under Article 1257b, V.A.P.C. (1925). The punishment was assessed in this cause at eight years, probated, which was a greater punishment in years than was authorized by the Legislature.

An assessment of a penalty exceeding five years was held to be reversible error under an indictment for murder not alleging that the killing was with malice aforethought. Cox v. State, 116 Tex.Cr.R. 528, 28 S.W.2d 146 (1930).

In Myatt v. State, 114 Tex.Cr.R. 516, 26 S.W.2d 915 (1930), a punishment of 10 years for an unlawful killing was held to be improper and reversible error where the indictment did not allege that it was done with malice aforethought. See Article 1257, Note 8, of the former code for other cases to the same effect.

Because the punishment assessed was not authorized by law, the State’s Motion for Rehearing is overruled; the judgment is reversed and the cause remanded.

      . There are serious questions concerning the constitutionality of the statute and the sufficiency of the indictment which need not be discussed in view of the disposition of the cause.