author: ODOM, Judge.

text:
    Ex parte Kartis EWING.
    No. 58268.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.

      Andrew L. Jefferson, Jr., Houston, for appellant.
    None appearing for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is a post-conviction writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Petitioner was convicted of robbery by assault in a trial before a jury on a plea of not guilty on September 10 and 11, 1974. Punishment was assessed by the court at 10 years, and notice of appeal was given. The conviction was affirmed in Ewing v. State, Tex.Cr.App., 549 S.W.2d 392. A major issue in the appeal, the issue upon which the court was divided, was whether petitioner received effective assistance of counsel at his trial. In that opinion the majority stated:

“[W]e are not in a position to ‘second guess’, through appellate hindsight, the strategy adopted by counsel at trial. . The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.
“We should not . . . attempt to ascertain the specific reason why counsel interrogated the arresting officers in the manner established by the record . Our duty is to review the totality of the representation and determine whether the appellant has been denied his constitutional right to effective assistance of counsel.”

By application for writ of habeas corpus filed in the convicting court on September 23, 1977, petitioner raised claims of ineffective assistance of counsel that will be detailed later in this opinion. The trial court denied petitioner’s request for an evidentia-ry hearing on the issues and the record was forwarded to this Court. In a per curiam order filed in this case on November 2,1977, this Court wrote:

“This allegation [of ineffective assistance of counsel] was raised on the direct appeal and rejected by this Court; however, this Court clearly pointed out, ‘Finally, we are not in a position to “second guess”, through appellate hindsight, the strategy adopted by counsel at trial.’ Because of the seriousness of the allegation, we feel that an evidentiary hearing should be conducted by the trial court to allow the issue of ‘trial strategy’ to be developed so that the proper determination of the issue of ineffective assistance of counsel shall be made. We observe that the determination of such question must turn upon the particular circumstances of each individual case. The constitutional right to counsel, whether the counsel be appointed or retained, does not mean errorless counsel whose competency or accuracy of representation is to be judged by hindsight. See Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974); Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975).
“Since this Court does not hear evidence, Ex parte Rodriguez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (1960), this Court will hold the instant writ in abeyance and hereby order the trial court to conduct a fact finding hearing at the earliest practical time, make findings of fact and conclusions of law, and make the same returnable to this Court pursuant to Article 11.07, Vernon’s Ann.C.C.P.”

Thus, this Court directed that a record be developed for determination of the issue by post-conviction habeas corpus even though the issue had been decided in the direct appeal, because the record on appeal was not adequately developed. The record of the hearing directed in the per curiam order is before us, together with the trial court’s findings of fact and conclusions of law, and we can now proceed to decide the issue with finality.

Petitioner’s assertions of ineffective assistance of counsel that are before us in this cause rest on claims that counsel on numerous occasions failed to object to hearsay evidence at trial, and that counsel allowed introduction at trial of evidence of two extraneous offenses where there was no ground for their admission.

Before these contentions regarding counsel’s trial performance are addressed, a discussion of the standard for judging that performance is in order.

We begin with excerpts, omitting citations, from our opinion in petitioner’s appeal, Ewing v. State, supra, at 395-396:

“For purposes of determining the effectiveness of an attorney’s representation, we have adopted the ‘reasonably effective’ assistance of counsel standard for use in this jurisdiction. We have also formulated reasonable and flexible rules in order to guide our application of this standard.
“First, the sufficiency of an attorney’s assistance must be gauged by the totality of the representation of the accused. In our system of criminal justice an individual is entitled to a fair but not a perfect trial. Isolated failures to object to certain procedural mistakes or improper evidence do not constitute a breach of legal duty by an accused’s attorney.
“We also observe that assertions of ineffective counsel shall be sustained only if they are ‘firmly founded.’ The record must affirmatively demonstrate the counsel’s ineffectiveness.
“Finally, we are not in a position to ‘second guess,’ through appellate hindsight, the strategy adopted by counsel at trial. Trial lawyers occupy the realm of the here and now; they do not possess the luxury of a record to review, nor are they given time to formulate solutions to complex procedural or evidentiary issues in the midst of trial. The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.
“ * * * Furthermore, the failure to object to every instance of improper evidence does not mean that appellant’s representation was ineffective.
“ * * * Our duty is to review the totality of the representation and determine whether the appellant has been denied his constitutional right to effective assistance of counsel.”

It has been urged that effectiveness of retained counsel and appointed counsel should be judged by the same standard. We will begin examination of this proposition with a look at Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974, en banc), cert. den., 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675, in which the issue was discussed at length. The first distinction drawn in that case was between the Fourteenth Amendment due process clause standing alone and the Sixth Amendment right to counsel incorporated in Fourteenth Amendment due process. It was that court’s conclusion that “whenever a lawyer’s ineffectiveness has rendered a trial fundamentally unfair, whether he be retained or appointed and whether his action or inaction was known or unknown to state trial officials, a deprivation of Fourteenth Amendment due process results from enforcement of the resultant judgment.” Distinguishing the incorporated Sixth Amendment standard from the standard of due process alone, the court stated that “the standard of reasonably effective assistance of counsel . . covers a greater range of counsel errors than does the fundamental fairness standard.”

The Fitzgerald court held that the reasonably effective assistance of counsel standard applies to both appointed and retained counsel, yet the test for deprivation of the constitutional right requires a showing of state action in addition to a showing of services below the “reasonably effective assistance of counsel” standard. That court wrote, “The circumstances in which the state will be bound by retained counsel’s failure to meet the Sixth Amendment standard of effectiveness . . . must be assessed more strictly . . . .” (Emphasis added). The test for relief for ineffective assistance of counsel thus consists of two parts: performance below the Sixth Amendment standard and state action.

For retained counsel, the Fifth Circuit adopted this test for the state action requirement:

“To find state involvement in retained counsel’s conduct which is adjudged to be less than reasonably effective . it must be shown that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied. If they directly participate in the incompeteney, it is even more so. Furthermore, if the incompetency of a retained attorney’s representation is so apparent that a reasonably attentive official of the state should have been aware of and could have corrected it then again the state action requirement is satisfied.” (Emphasis added.)

Thus, state action may be shown by actual or constructive awareness by the court or prosecutor of retained counsel’s less than reasonably effective assistance. The great difficulty in applying this test is introduced by the trial strategy and tactics factor. It is to be presumed that the trial judge is fully aware of the actual performance of retained counsel in the courtroom, but how is the trial judge to weigh that performance in light of possible defense strategy and tactics? The Fitzgerald opinion also recognized this problem, and stated that interrupting the trial to question retained counsel about his strategy and tactics would often be counterproductive for the defendant.

We agree that to secure relief for ineffective assistance of retained counsel there must also be an adequate showing of state action by failure of a responsible state official connected with the criminal proceeding (such as the trial judge or prosecutor) to take corrective action when that official had actual or constructive knowledge of retained counsel’s failure to deliver reasonably effective assistance. The trial judge ordinarily should not interfere with the attorney-client relation by inquiring into the matter of strategy and tactics. Such an inquiry should be made only if from all appearances there could be no plausible basis in strategy or tactics for counsel’s actions, and then the inquiry should be made out of the presence of the jury and of the prosecutor. A reply by counsel that his actions are based on strategic or tactical considerations that will become apparent later in the trial should satisfy the court’s inquiry, and counsel should not be required to reveal his strategy and tactics at that time. Full inquiry should be made only if after the trial from all appearances there still is no plausible basis in strategy or tactics for his actions. In this case, “because of the seriousness of the allegation” of ineffective assistance of counsel in trial performance, we ordered just such an inquiry into counsel’s trial strategy.

We turn now to the facts of this case. Petitioner first complains of counsel's failure to object to hearsay statements by some witnesses. The answers were not particularly prejudicial to petitioner, and as pointed out by trial counsel when she testified at the hearing, they tended to show contradictions between witnesses for the State. We hold the failure to object to these answers was not conduct requiring the trial court to intervene and take corrective action, nor was it below the standard of reasonably effective assistance.

The other conduct complained of by petitioner is the introduction of extraneous matters indicating that he was suspected of two burglaries before the robbery for which he was being tried. These matters were developed by defense counsel during cross-examination of two State’s witnesses. First we set out the cross-examination of officer Cashion:

“Q. You had had a make previously on this ear [appellant’s car used in the robbery] what do you mean?
“A. We had picked it up for investigation of a burglary.
“Q. This car?
“A. Yes, ma’am.
“Q. When?
“A. Back on the 25th of November, 1973.
“Q. Was Mr. Ewing involved?
“A. Yes, ma’am, he was.
“Q. You say Mr. Ewing was involved in a burglary?
“A. We are saying we questioned him about a burglary.
“Q. Was his car involved in a burglary? Was it positively—
“A. We had it picked up for investigation of a burglary.
“Q. Was it positively identified as being involved in the burglary?
“A. Not at that time it wasn’t. It was at the scene, though.
“Q. Was Mr. Ewing in the car on the 25th?
“A. No, ma’am; he wasn’t in the car.
“Q. All right. Then had the car been reported for any reason prior to the 25th?
“A. No, ma’am, sure hadn’t.
“Q. Officer, are you telling me that you never had a stolen car report on this brown Chevrolet, ’67, with this license number reported to you before?
“A. No, ma’am; sure not.”

The other testimony regarding the burglaries was elicited on cross-examination of officer Davis:

“Q. How did you happen to go to Rin-gold and Prosper [where he arrested petitioner who was driving the Chevrolet automobile]?
“A. First of all, we had a license plate number. I asked the dispatcher — I can’t remember which one of us did — got on the radio and got him to trace the registration on the car and it was registered to one Chris LeBlanc who lived on — I can’t remember the exact number. I think it is 1046. It was at about the intersection of Wheatley and South Victory. We proceeded to that house and talked to Chris LeBlanc’s mother who stated that her son had sold the car to Mr. Ewing, I think, two months earlier.
We then asked her if she knew where he lived. I can’t remember whether she knew where he lived or not. From her house I called the burglary and theft division because we had the same ear with the same license number towed off on the 28th from the scene of a burglary. Down at burglary they have a little card that stated who claimed the car. We put a ‘hold’ on the car for burglary and theft and before the man who wanted the car could get it out — it was out at the prisoner’s lot is where it was — before he could get it released, he would have to get a release from the burglary and theft division and have to prove by means of registration that it was his car and prove who it was and it turned out it was the Defendant, Kartis Ewing, that got the car released from the burglary division.
“Q. Did you find out that this car had actually been involved in a burglary?
“A. Did I find out it was? We believed that it was but we were not sure. We also apprehended Mr. Ewing at the scene of a burglary but since the car that we found there was a suspicious car, the only car there, it was some model homes, there was one or two trucks that blocked — I don’t remember who built— let’s say Suburban Homes, everybody knows them — one of the Suburban Company trucks were there and there was a passenger car parked on the other side of the lot. We had it picked up and towed off in case it was. Then I saw Mr. Ewing walking down toward the freeway shortly after we had made the burglary call there and so I arrested him for suspicion then but he was released at the scene since the car was not registered to him at that time.
“Q. You never took him to the police department?
“A. Not on the burglary we didn’t. We didn’t have enough evidence to think that we could.
“Q. Did you find that the car had been reported stolen?
“A. No, ma’am; it hadn’t been reported stolen.”

Later in defense counsel’s examination of officer Davis, evidence regarding a second burglary was elicted. Counsel was questioning the officer regarding the absence of a booking photograph to contradict the testimony about how petitioner was dressed on the night of the offense and arrest, and the officer stated a photo was likely already on file from a previous booking. Counsel responded:

“Q. You told me he was not handled for burglary?
“A. He was picked up for suspicion of burglary the 15th of November for burglary of an apartment. He has the I.D. number from that case.
“Q. You told me you didn’t take him—
“A. This is not the same burglary, this is another burglary. This is on the 15th. The time we picked him up that we arrested him at the scene was the 25th of November. On the 15th of November he was also handled by another set of officers for burglary of an apartment but he was released with no charges. . . . ”

The first sequence was deliberately elicited by counsel from Cashion as part of her theory of defense: she showed that petitioner’s car was located near the scene of a burglary, but that petitioner was not in the car, and that he was questioned but not held. The second sequence appears to be repetition of the first, although the dates of the 25th and 28th are at variance. The third sequence presented an obvious surprise to counsel that her client had been arrested in connection with a second, earlier burglary.

Trial counsel gave some testimony at the hearing regarding her trial strategy in this matter, but was limited in fully disclosing that strategy by petitioner’s refusal to waive his attorney-client privilege. From what was revealed at the hearing, it appears that counsel was told by petitioner that before his arrest for the prosecuted robbery he had never been arrested, nor had he been the subject of police investigation. It also appears that petitioner told counsel his car, the one involved in the robbery, had been stolen from him several days before the burglary and was subsequently recovered by him.

On the basis of these representations by petitioner to his attorney, it appears counsel was attempting to present to the jury evidence that would support the testimony petitioner was expected to give later in the trial: that his car had been stolen and was recovered by the police at the scene of a burglary, likely committed by the auto thief. To have police corroboration of defense testimony would boost his credibility.

The evidence of the second, earlier burglary investigation involving petitioner surfaced unexpectedly in the midst of an attempt to weaken the state’s case by showing its failure to present photographic evidence of petitioner’s dress on the night of the offense, evidence presumably in the State’s possession. How he was dressed and how the hitchhiker upon whom he placed the blame was dressed were issues in the case going to the credibility of the eye-witnesses’ identification. Counsel questioned the failure to present the booking photograph from petitioner’s arrest for the robbery, only to discover that he had previously been handled for burglary.

Of course, counsel should make an independent investigation of the facts surrounding the allegations against his client, and not rely exclusively upon the client’s version of what happened. The existence of a police record, however, is not the kind of fact that may have different versions depending on the witness being asked: it is a matter of record and generally not subject to dispute. While this makes it a relatively simple matter to conclusively verify or refute the client’s representation, by the same token it also should make the client’s statement, given to his attorney to aid in preparation of his defense, worthy of belief by the attorney, since there can be no motive for gain and only cause for harm to be expected from giving false information, in that the truth inevitably will come out.

Wholly apart from counsel’s duty to investigate the facts surrounding the offense independently of the client’s version, we find different considerations dictate our conclusion about investigating a client’s statement that he has no police history. If the client falsely tells his attorney he has no record, he may not later claim that his own lies have caused him to suffer ineffective assistance of counsel. He may not set up counsel for later attack by such device. To hold otherwise would reward those who frustrate the attempts to render them assistance, and discourage the open and honest communication that is necessary if counsel is to have the information necessary to defend. We hold petitioner was not denied effective assistance of counsel where counsel was pursuing a plausible defense strategy when she was surprised by revelations of petitioner’s prior police encounters which he had told her did not exist.

With regard to counsel’s failure to object to the extraneous matters once they surfaced, and to request the jury be instructed to disregard, we hold the prejudicial impact was not of a sufficient degree to constitute ineffective assistance of counsel. Cf. Ruth v. State, Tex.Cr.App., 522 S.W.2d 517, 519 (concurring opinion). It is well established that failure to object to admission of extraneous offenses waives the objection and presents nothing for review, e. g., Boatright v. State, Tex.Cr.App., 472 S.W.2d 765; Hanney v. State, Tex.Cr.App., 472 S.W.2d 776, and that a defendant may not complain of evidence elicited by his own attorney, e. g., Mason v. State, Tex.Cr.App., 472 S.W.2d 787. We decline to hold that such actions which waive evidentiary grounds may automatically be transformed into grounds for relief for ineffective assistance of counsel.

We hold petitioner has not established that he was denied reasonably effective assistance of counsel and it is unnecessary to discuss application of the state action requirement to the facts of this case.

Relief is denied.

      . In his application for habeas corpus petitioner also raised one attack based on counsel’s pretrial preparation and raising an issue of whether he had retained Mary Edwards, who represented him at trial, or her husband Titus Edwards. This issue was resolved by the trial court’s findings and has not been asserted in this Court. Although no briefs have been filed, oral argument was presented, and only trial performance was attacked. Furthermore, the order of this Court for an evidentiary hearing was directed solely to the issue of trial performance. Accordingly, pretrial preparation is not in this case, except insofar as it contributes to resolution of the trial performance issue.

      . The trial judge exhibited a sensitivity to this principle when at the hearing he stated: “I was concerned at the time of the trial, and I spent some little time concerning the law, because it is a gray area as far as I am concerned, as the court has held, the matter of trial strategy of employed counsel, how far do you let them go. I recognized at that time in my mind, but who am I to second guess what another lawyer is doing?”

      . At his trial petitioner testified he had reported his car stolen before the more recent of the two burglaries. He also admitted his presence at the scene of the robbery and possession of the car that night, but placed guilt on an unknown hitchhiker he had brought to the shop where the robbery was committed.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Ronnie Gene DECKER, Appellant, v. The STATE of Texas, Appellee.
    No. 58587.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Joseph V. Gibson, III, Odessa, for appellant.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an appeal from a conviction for burglary of a habitation. V.T.C.A. Penal Code, Sec. 30.02. Punishment was assessed by the court at ten years.

Initially there is a question as to whether this Court has jurisdiction of the appeal.

On September 12, 1977, appellant waived his right to trial by jury and entered a plea of guilty before the court. The court admonished appellant of his rights under Art. 26.13, V.A.C.C.P. Appellant’s written judicial confession was admitted into evidence. The trial court found the appellant guilty as charged. The following then occurred:

“[THE PROSECUTOR]: For the purposes of the record, the District Attorney’s office in this case would recommend ten years in the Texas Department of Correction and would further recommend that, if approved, it run concurrent with his parole violation.
“[DEFENSE COUNSEL]: Yes, sir, Your Honor, we would request that long with the jail time, but, of course, I think we can determine that satisfactorily at the time of sentencing later on.
“THE COURT: Do you want to retain custody of this? I will set sentencing then for Wednesday, September 22nd.
“[THE PROSECUTOR]: Thank you, Judge.
“THE COURT: If you all will, get together on the time and come on up.
“[DEFENSE COUNSEL]: All right, sir.
“THE COURT: Have you joined with the District Attorney’s office in the recommendation that the sentence be ten years in the Department of Correction to run concurrent with the probation revocation?
“[DEFENSE COUNSEL]: Yes, Your Honor, with the parole revocation.”

The transcription of the court reporter’s notes before us does not reflect what, if any, punishment was assessed on September 12, 1977. The judgment of conviction, however, which bears the date of September 12, 1977, shows that punishment was assessed at imprisonment for ten years.

The sentence was formally pronounced on October 3, 1977. The next day, appellant filed a pro se notice of appeal. This was done in the form of a letter to the judge, which clearly indicates the appellant’s desire to appeal. See Art. 44.08(a), V.A.C.C.P. It should be noted that in appellant’s letter to the judge he states: “When I was sentenced, you told me that I had a right to appeal' the sentence and could appeal at any time for a period of ten days after you sentenced me.” On January 12, 1978, appellant through counsel filed an “application for permission to appeal.” On January 18, 1978, the trial court entered an order, which reads in pertinent part:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Defendant Ronnie Gene Decker, be, and he is hereby denied permission of the Court to appeal his conviction in the above captioned cause, to which order of the Court the Defendant then and there excepted.”

Although the trial court’s order did not so expressly state, it appears that the court denied appellant permission to appeal pursuant to Art. 44.02, V.A.C.C.P., as amended effective August 29, 1977. See Acts 1977, 65th Leg., p. 490, ch. 351, Sec. 1. This statute now provides in pertinent part:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. . ” [Emphasis added.]

Despite the trial court’s attempted denial of appeal, a full record of the trial was prepared and is before us. In determining whether we have jurisdiction of the appeal under Art. 44.02, supra, we note the following:

1. The appellant pled guilty to the court.
2. The court assessed punishment.
3. The punishment assessed did not exceed the punishment recommended by the prosecutor.

It appears from the colloquy quoted above between the court, counsel for the appellant, and counsel for the State, that the prosecutor had agreed to recommend as punishment in the instant case that appellant be confined in the Department of Corrections for ten years and that such punishment would run concurrently with the appellant’s “parole violation.” Although it appears that appellant’s counsel agreed to this recommendation and also requested that the appellant be given his back “jail time,” there is no showing in the record before us that the appellant personally agreed to the recommendation.

Article 44.02, supra, expressly states that it is applicable where the punishment recommended by the prosecutor is “agreed to by the defendant and his attorney . . .” [Emphasis supplied.] The question is thus presented whether it is necessary for a defendant to personally agree to the recommended punishment where his counsel has acquiesced in same. In Rhynes v. State, Tex.Cr.App., 479 S.W.2d 70, and Goodall v. State, Tex.Cr.App., 501 S.W.2d 342, this Court has held that the record must reflect the personal consent of the defendant where the jury in a felony case is allowed to separate after the charge has been read to the jury under the terms of Art. 35.23, V.A.C.C.P., which requires “the consent of each party” for the jury to separate at such stage of the trial.

Clearly, Art. 44.02, supra, is more explicit in requiring the defendant’s personal consent than is Art. 35.23, supra, since Art. 44.02,. supra, requires agreement “by the defendant and his attorney.” We construe Art. 44.02, supra, to require the defendant to personally agree to the recommended punishment. In the instant case, the record fails to reflect appellant’s personal consent to the recommended punishment. It follows that the trial court cannot deny appellant his right to appeal under Art. 44.02, supra. The record being before us, we will consider the appeal on its merits.

Appellant contends that the trial court failed to admonish him in accordance with Art. 26.13, V.A.C.C.P. Specifically, appellant complains that the trial court failed to advise him “that he would be waiving his right to confront witnesses against him, or that the State of Texas would be required to prove appellant’s guilt beyond a reasonable doubt or that he would not be required to give testimony which would incriminate him.” Appellant concedes in his brief that “the judgment and written record of the court reflects a waiver of these rights. . . . ” The stipulation of evidence, sworn to by appellant and approved by his counsel and the court, contains an express waiver of appellant’s rights to a jury, confrontation and cross-examination of witnesses, and right against self-incrimination. See Arts. 1.13 and 1.15, V.A.C. C.P. He argues, however, that the record must affirmatively reflect that the judge advised him of these rights in open court. We disagree. Article 26.13, V.A.C.C.P., does not require that the judge make the specific inquiries in open court suggested by the appellant. See and compare Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Appellant does not suggest that he was in any way misled or that he was not fully aware of his rights and the consequences of his plea. Neither does he allege that he was in any way harmed or misled in any manner by the admonishments given by the court. No objection was voiced to the admonishments in the trial court. We find that the trial court was in compliance with Art. 26.13, V.A.C.C.P., and conclude that no error is shown.

The judgment is affirmed.

      . In Ex parte Abahosh, 561 S.W.2d 202, this Court held that this amendment to Art. 44.02, V.A.C.C.P., could not be applied retroactively since the trial court accepted the guilty plea and entered judgment prior to the effective date of the amendment to Art. 44.02, supra. Abahosh brought a habeas corpus proceeding urging that he should be released on bail pending appeal. The trial court was directed to take steps to accord the petitioner an out-of-time appeal in accordance with Art. 40.09, V.A. C.C.P.

      . Absent a showing that the defendant personally agreed to the separation of the jury after the charge is read, the burden is on the State to rebut the presumption of harm.

      . We find it unnecessary to reach appellant’s contention that he was deprived of his constitutional rights by the court’s action in ordering that he be denied an appeal in light of our holding that appellant is entitled to his appeal.


text:
    Bobby Steve McKELVEY, Appellant, v. The STATE of Texas, Appellee.
    No. 58608.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Michael M. Phillips, Angleton, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and William E. Taylor, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of a controlled substance, to-wit: heroin. Art. 4476-15, Sec. 4.04, V.A.C.S. The court assessed punishment at three years.

The record reflects that appellant entered a plea of guilty on November 18,1976. The court found the appellant guilty at that time but did not assess punishment or rule on appellant’s motion for probation. The hearing was recessed until December 17, 1976, so that a presentence investigation could be conducted. On December 17,1976, the court reconvened, hearing oral testimony from the appellant’s wife, father, mother, father-in-law, and finally the appellant. The court assessed punishment at three years. The sentence was then immediately pronounced. No motion for new trial was filed at that time.

After the filing of appellant’s brief in the trial court, the trial court on October 20, 1977, resentenced the appellant over the objection of his newly retained counsel. It also appears that a motion for new trial was filed on October 20, 1977, although the record fails to show either a ruling or a hearing on the motion.

Appellant initially complains that he was improperly sentenced on December 17, 1976. Article 42.03, Sec. 1, provides that sentence “shall be pronounced ... at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.” See Art. 40.05, V.A.C.C.P., and Art. 41.02, V.A.C.C.P. The docket sheet in the instant case reflects a stamped entry on December 17, 1976, “ten days time waived.” We have examined the transcription of the court reporter’s notes of the hearing on December 17, 1976, and find no support for this form entry. In Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975), this Court held that a docket sheet entry “waived time” was insufficient to show that sentence had not been prematurely pronounced.

The decisions of this Court clearly establish that where sentence is pronounced prematurely or in untimely manner the jurisdiction of this Court is not invoked and the appeal must be dismissed. Means v. State, 552 S.W.2d 166 (Tex.Cr.App.1977); Carpenter v. State, 541 S.W.2d 446 (Tex.Cr.App.1976); Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976), and cases therein cited. It should be noted, however, that in Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1977), we held that such a sentence is merely voidable rather than void. It is clear, therefore, that the sentence pronounced on December 17, 1976, was premature.

The appellant next contends that the trial court erred when it resentenced him on October 20, 1977, over his objection. It appears to be appellant’s position that since the record had been approved and he had already filed a brief in the trial court, the trial court lacked all power to take any action other than the granting of a new trial. See Art. 40.09, Sec. 12, V.A.C.C.P. The fallacy in appellant’s argument is that because the sentence was prematurely pronounced on December 17, 1976, jurisdiction of this Court could never be invoked. His reliance on Art. 40.09, Sec. 12, V.A.C.C.P., is misplaced. In each of the above-cited cases where this Court has found the sentence to have been improperly pronounced, the appeal was dismissed to allow for proper pronouncement of sentence. In the instant case, it appears that the trial court took prompt, corrective action by timely sentencing appellant while it still had jurisdiction of this cause.

The record reflects that appellant filed a motion for new trial on October 20, 1977. The record does not show that a hearing was ever held or that the trial court ever acted on this motion. A proper judgment was entered on December 17, 1976. See Art. 42.01, V.A.C.C.P. A motion for new trial should have been filed within ten days of December 17, 1976. See Art. 40.05, V.A. C.C.P. No hearing was ever held on this untimely motion for new trial. See Clopton v. State, 563 S.W.2d 930 (Tex.Cr.App.1978). We find the sentence pronounced on October 20, 1977, to be sufficient to invoke this Court’s jurisdiction.

Appellant next contends that the State failed to perform its part of an alleged plea bargain.

The record contains a written stipulation which recites that a plea agreement was reached between counsel for the appellant and counsel for the State on November 18, 1976, the terms of this agreement being that if the appellant would enter a plea of guilty, the State would make no recommendation as to punishment and that the State would not oppose granting probation of the punishment assessed.

We have carefully examined the record and find no indication that the State has breached the plain terms of this agreement. The docket sheet contains the notation in the judge’s handwriting “no recommendation” as to punishment.

Appellant contends that the State’s cross-examination of the appellant’s wife “was calculated to be adversarial” as was its cross-examination of appellant’s father. It appears to be appellant’s position that the State breached its plea bargain by “adversarial” cross-examination. The appellant also argues that the State had an affirmative duty to make known to the court that it would not oppose the granting of probation.

At the time the trial court accepted appellant’s plea of guilty, he carefully admonished the appellant “that this Court is not bound by any recommendations or agreements whatsoever? Do you understand that?” The appellant replied, “Yes, sir.” It should be noted that appellant’s plea of guilty was entered and punishment was assessed over eight months prior to the recent amendment to Art. 26.13, V.A.C.C.P., which now provides that where the trial court rejects a plea bargain the defendant is permitted an opportunity to withdraw his plea of guilty.

The problems presented in this case, both procedural and substantive, typify the problems described by the concurring opinion in Bean v. State, 563 S.W.2d 819 (Tex.Cr.App. 1978), where it was observed:

“Records coming before this Court, particularly from Harris County, have demonstrated a growing tendency to bifurcate these proceedings, [pleas of guilty] In most of these cases the punishment is not assessed at the time of the guilty plea and the cases have been reset for the purpose of obtaining a pre-sentence investigation. At the second hearing, instead of the court passing on the issue of probation, the courts have been permitting the defense to reopen and present evidence as to the facts surrounding the offense as well as presenting reputation witnesses. The State often counters with other evidence concerning the offense.”

As this Court made clear in Thom v. State, 563 S.W.2d 618 (Tex.Cr.App.1978): “There is no bifurcated trial at a plea of guilty.”

We find no breach of the State’s plea agreement by their manner of cross-examination of the witnesses that testified on December 17, 1976. The State agreed to make no recommendation. The record clearly reflects that they made no recommendation as to punishment. The State agreed “not to oppose probation.” The record reflects that the State carried out this part of the bargain. A recommendation to “not oppose probation” cannot be unilaterally converted by the appellant into an agreement to affirmatively recommend probation for him. Cf. Nunez v. State, 565 S.W.2d 536 (Tex.Cr.App.1978).

Appellant’s contentions with respect to a broken plea bargain are rejected.

Appellant finally contends that he was denied effective assistance of counsel at the time of the entry of his guilty plea because the stipulated evidence allegedly shows a violation of his Fourth Amendment rights against search and seizure. It appears to be appellant’s contention that the summaries of the police reports which form part of the stipulation of evidence raise a question as to the reliability of the informant, thereby showing a violation of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Appellant’s plea of guilty waived all nonjurisdictional defects. Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App. 1977); Helms v. State, 484 S.W.2d 925 (Tex. Cr.App.1972). On the basis of the present record, appellant has failed to demonstrate that he received ineffective assistance of counsel.

The judgment is affirmed.

      . See Acts 1977, 65th Leg., p. 748, ch. 280, Sec. 1, eff. August 29, 1977.


author: ONION, Presiding Judge.

text:
    Mike D. ULLOA, Appellant, v. The STATE of Texas, Appellee.
    No. 58638.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Terrence W. McDonald, San Antonio, for appellant.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal’ from a conviction for robbery, wherein the punishment was assessed by the court at three (3) years, probated.

In two grounds of error appellant challenges the sufficiency of the evidence to sustain the conviction, contending the proof did not meet the allegations of the indictment. Omitting the formal parts, the indictment alleged that the appellant on or about December 27, 1976 “did then and there while in the course of committing theft and with the intent to obtain property of Greg Baenziger, to wit: Two (2) shirts, without the effective consent of the said Greg Baenziger and with intent to deprive the said complainant, Greg Baenziger of said property did then and there intentionally and knowingly cause bodily injury to Greg Baenziger.”

The record shows that the appellant and a woman described as his wife were in the Baenziger Model Market in New Braunfels about 3. p. m. on December 27, 1976. Greg Baenziger, manager of the market, observed them acting suspicious while at the shirt counter. He saw the appellant pick up some shirts and then put them down again when a customer would come around the corner. As Baenziger watched appellant picked up two shirts and walked to the next aisle and placed the shirts down in front of his pants and pulled his own shirt over the pants. Appellant then left the store and Baenziger followed him and stopped him in the store’s parking lot and asked if he had forgotten to pay for something. Appellant stated Baenziger was crazy and threatened to call the cops. Baen-ziger asked him, however, to return to the store. As they reentered the store, appellant began to run and pulled the shirts out of his pants. At this time Baenziger grabbed the appellant’s shoulder and the shirts fell or were thrown on the floor and appellant’s woman companion picked them up and stuffed them behind a display of cat and dog food. A scuffle ensued with appellant throwing Baenziger into the meat case causing him to hit his head, bruising it. Appellant then swung at Baenziger several times and they ended up on the floor with Baenziger holding the appellant down. It was at this time that appellant bit Baenziger’s right hand, which left a good-sized scar on the thumb. Baenziger also received some bruised ribs from the kicking he received from appellant’s companion while he was wrestling with the appellant. Police were called and arrived after Baenziger allowed the appellant to get up. Baenziger stated he did not consent to appellant removing the shirts in question from the store.

Two employees of the store who did not see appellant take the shirts gave their version of the scuffle that ensued after both men reentered the store. The defense called a woman customer who testified that she saw Baenziger hitting the appellant and saw him on the floor with Baenziger on top with the appellant complaining that Baen-ziger was choking him.

Testifying in his own behalf, the appellant admitted being in the store at the time in question and that he took the shirts. He related that when he and Baenziger returned to the store Baenziger grabbed him by the coat and told him to stop and then hit him in the ear; that when he saw another man approaching he began to run and threw the shirts away because he had stolen them. He stated while running he went down and Baenziger, who was pursuing, flipped over him into the meat case, but got up and started hitting him with his fists and that Baenziger got him down on the floor and in such a position he couldn’t breathe, and that at this time he bit Baen-ziger.

V.T.C.A., Penal Code, § 29.01 (Definitions), provides:

“In this chapter:
“(1) ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.
“(2) ‘Property’ means:
“(A) tangible or intangible personal property including anything severed from land; or
“(B) a document, including money, that represents or embodies anything of value.” (Emphasis supplied.)

V.T.C.A., Penal Code, § 29.02 (Robbery), reads:

“(a) A person commits and offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or ' knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”

V.T.C.A., Penal Code, § 1.07(a)(7), provides:

“(7) ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”

The Practice Commentary to said § 29.02 reads:

“Under prior law robbery consisted of an assault, violence, or causing fear of life or bodily injury for the purpose of completing a theft from the possession of another, Penal Code art. 1408. Section 29.02 restates the art. 1408 elements with some expansion. Robbery may be committed by causing bodily injury, even if it is only recklessly inflicted, Subsection (a)(1), or by knowingly or intentionally threatening or otherwise causing fear of bodily injury, Subsection (a)(2). As in prior law, the violence used or threatened must be for the purpose of compelling acquiescence to the theft or of preventing or overcoming resistance to the theft. Violence used or threatened for some purpose unrelated to the theft is a separate offense against the person, e. g., assault under Sections 22.01, 22.02.
“Section 29.02 is broader in scope than the prior robbery offense, however, because it applies to violence used or threatened, ‘in the course of committing theft,’ which is defined in Section 29.01 to include not only violent conduct antecedent to a completed theft, but also violence accompanying an unsuccessful attempted theft and violence accompanying an escape immediately subsequent to a completed or attempted theft. This factor adds two new methods of committing robbery. The first — use or threat of violence in an attempted theft — simply combines into the robbery offense the prior separate offense of assault with intent to rob, Penal Code art. 1163. The practical effect is to provide an identical penalty range, which is justified because the conduct is equally dangerous whether or not the theft is completed and it is usually fortuitous that the theft falls short of completion. The second — use or threat of force in escaping — broadens the scope of robbery. Here, too, the conduct is as dangerous as force or threats antecedent to the theft. Thus the conduct in Polk v. State [157 Tex.Cr.R. 75], 246 S.W.2d 879 (Cr.App.1952), for example, would be robbery rather than simply theft from the person. The expansion is limited to assaults to effect an immediate escape so that a thief who uses force to resist apprehension a week after the theft does not commit robbery, but an assaultive-type offense.
“Unlike prior law, Section 29.02 does not limit robbery to the taking of property from ‘the person or possession of another.’ The requirement of an assault, Subsections (a)(1), (2), implies presence of the victim and thus limits the scope of this expansion, but it will apply, for example, when an offender threatens a victim ‘in order to compel him to telephone directions for the disposition of property located elsewhere.’ ” Model Penal Code § 222.1, Comment at 70 (Tent. Draft No. 11, 1960).

In Lightner v. State, 535 S.W.2d 176 (Tex.Cr.App.1976), we noted the changes made in the definition of robbery by the 1974 Penal Code, and held that under the current statutes the offense of robbery includes any violence in the course of effectuating the theft as well as any violence while in immediate flight from the scene of the theft. In Lightner, an aggravated robbery case, the violence was antecedent to the theft and the injured party was a police officer and not the victim of the theft. The conviction was affirmed. In Brown v. State, 535 S.W.2d 640 (Tex.Cr.App.1976), the assault was made upon the victim of the theft outside the store after the theft had occurred in the store. There the court wrote:

“In the instant case, the conduct constituting an assault occurred ‘in immediate flight after the attempt or commission of theft.’ Hence, all the elements of the offense of robbery have been shown. Lightner v. State, Tex.Cr.App., 535 S.W.2d 176 (1976).”

Appellant argues that there is no evidence of flight in the case at bar but rather evidence of an attempt to replace the merchandise. We do not agree. The undisputed evidence reflects that appellant took the shirts in question and left the store. When stopped in the store’s parking lot, he threatened to call the police but returned to the store. Appellant calls our attention to a conflict in the evidence as to whether he walked or ran back to the store. The conflict is immaterial as the undisputed evidence, including appellant’s testimony, is that the appellant began to run once inside the store and that he dropped or threw away the shirts in his flight. He testified that he guessed his effort was to get rid of the evidence. Appellant’s companion then tried to stuff the shirts behind the cat and dog food display. According to the State’s witnesses, appellant continued to run, throwing Baenziger into the meat case and when forced to the floor he bit Baenziger’s hand, causing the scar displayed during the bench trial. Thus, the violence occurred in flight from the scene of the theft.

As in Brown, we conclude that the conduct constituting an assault occurred in immediate flight after the attempt or commission of theft. The evidence does not support appellant’s claim he was attempting to return the merchandise. We reject appellant’s contention that because the assault occurred after he had abandoned or discarded the stolen property a different result should be reached under the circumstances of this particular case.

Appellant further argues that even if the evidence is sufficient to sustain the robbery conviction there is nonetheless a fatal variance between the allegation of “intent to obtain property” and proof of. “intent to maintain control of the property.” Appellant contends the State in drafting the indictment alleged only the intent to “obtain control” over the property, and the undisputed proof showed he threw the property away inside the store. He advances the theory that to sustain the conviction this court must find that by throwing the property away he intended to obtain control of the property. The evidence clearly reflects that appellant intended to appropriate or obtain control of the shirts and in fact did so and only discarded the same in fear of apprehension. Appellant’s contention is without merit.

The judgment is affirmed.

      . See and cf. Lewis v. State, 530 S.W.2d 117 (Tex.Cr.App.1975).

      . In a robbery prosecution it is not necessary that the victim of the theft or attempted theft and the victim of the robbery be the same. Servance v. State, 537 S.W.2d 753 (Tex.Cr.App.1976).

      . In Lightner v. State, supra, this court wrote:
      “. . . This new definition of robbery proscribes the use of violence not only in the taking of the property, but also in the immediate efforts of the thief to keep the stolen property.”
      Such holding was tailored to the facts of Lightner and was not a limitation upon a definition of robbery under the 1974 Penal Code,


text:
    Marvin SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 59003.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    No appearance for appellant.
    No appearance for appellee.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appellant was convicted by a jury for aggravated robbery. The jury assessed punishment at imprisonment for 40 years. From a judgment and sentence reciting that appellant was convicted of “attempted aggravated robbery,” appellant gave notice of appeal.

The indictment alleged the offense of aggravated robbery under V.T.C.A., Penal Code, Sections 29.02(a)(2) and 29.03(a)(2). In pertinent part, it alleged that, on or about March 18, 1977, the appellant “did then and there while in the course of committing theft and with intent to obtain property of Mr. Warren Garrison the owner of the following described property, to-wit: 1976 Mercury automobile without the effective consent of said owner and intent to deprive the said owner of said property, did then and there by using and exhibiting a deadly weapon, to wit: a 38 special revolver, intentionally and knowingly place Warren Garrison in fear of imminent bodily injury. ...”

In applying the law to the facts in its charge to the jury, the trial court not only authorized the jury to convict appellant if they found him guilty as alleged in the indictment; but, the trial court also allowed the jury to convict appellant if they found that appellant committed the robbery by “then and there intentionally, knowingly, or recklessly caused bodily injury to said Warren Garrison. . . . ” Consequently, the trial court allowed the jury to convict appellant if they found he committed robbery under V.T.C.A., Penal Code, Section 29.02(a)(1), a manner of committing robbery which was not alleged in the indictment. This charge, then, was fundamentally erroneous and the cases of Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), and Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977), require reversal of appellant’s conviction.

The judgment is reversed and the cause is remanded.


text:
    Regina JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55924.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 20,1978.

      James P. Finstrom, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Gerald A. Banks and John D. Ovard, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for theft; punishment, enhanced by proof of two prior convictions, was fixed at life.

In her first ground of error appellant challenges the jury charge at the guilt stage of the trial as fundamentally defective. The indictment alleged theft by exercising control over property other than real property without the owner’s effective consent. V.T.C.A., Penal Code Secs. 31.01(5), 31.03(a), (b)(1). The jury charge instructed on theft by appropriating the property. The definition of “appropriate” in Sec. 31.-01(5), supra, includes “to acquire or otherwise exercise control over property other than real property.” This definition was the only one given in the instructions to the jury. We hold the jury instruction is not fundamentally defective as an enlargement upon the allegations in the indictment, and that the definition of “appropriate” in the jury charge restricted its use to the means alleged in the indictment. The first ground of error is overruled.

It is next contended that the definition of “appropriate” in See. 31.01(5)(B), supra, i. e.; “to acquire or otherwise exer-. cise control over property other than real property,” is unconstitutionally vague in that “otherwise exercise control” is impossible to define. We think it is commonly understood what it means to “exercise control” over something, and this is particularly so in the context of the offense, which is described in Sec. 31.03, supra, as alleged in this case, by such exercise of control being with the intent to deprive the owner of the property and without the owner’s effective consent. Cf. Morgan v. State, 557 S.W.2d 512, 515 (Tex.Cr.App.); Courtemanche v. State, 507 S.W.2d 545 (Tex.Cr.App.). The ground of error is overruled.

Appellant next argues the indictment is fundamentally defective for failure to allege the manner in which control was exercised over property. No motion to quash was filed alleging insufficient notice. Any defect here goes only to notice and is not fundamental. See, Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.); Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.).

In her next three grounds of error appellant asserts fundamental errors in the jury charge at the punishment stage of the trial. No trial objections were made to the charge. The jury was instructed on the issues of the truth of each prior conviction alleged, and on the punishment ranges for a finding of only one prior conviction, and of no true prior conviction allegations. The charge recited the prior conviction allegations and instructed that the truth of those allegations must be established beyond a reasonable doubt before a “true” verdict could be returned, and that if there was a reasonable doubt the verdict must be “untrue.” Considering the charge as a whole we find no fundamental error and overrule the grounds of error.

Finally, appellant argues that testimony that appellant was wearing a “booster girdle” when seen and arrested for shoplifting was prejudicial and improperly admitted over objection. Without discussing the sufficiency of the objection to apprise the trial court of the grounds argued on appeal, we note that the expertise of the witness as an investigator of thefts was shown and not challenged, and that the testimony objected to was admitted as expert evidence of the instrumentality of the crime and the manner of its use. The evidence was admissible and the ground of error is overruled.

The judgment is affirmed.

      . A “booster girdle” is “a device by which people enter a store and place merchandise so that it is concealed but looks as though they do not have it.”


text:
    Michael Dean MOLANDES, Appellant, v. The STATE of Texas, Appellee.
    No. 53814.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 20, 1978.
    H. L. Edwards, Nacogdoches, for appellant.
    David D. Adams, Dist. Atty., Nacogdo-ches, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder in which punishment was fixed at life. V.T.C.A., Penal Code Sec. 19.03; Art. 37.071, V.A.C.C.P.

The sufficiency of the evidence is not challenged; the three grounds of error raised on appeal are all directed to the court’s charge.

In his first ground of error appellant contends the jury charge erroneously allowed a conviction for capital murder under the law of criminal responsibility for the conduct of another. V.T.C.A., Penal Code Sec. 7.01. He argues that the law of parties does not apply to capital murder and urges that Smith v. State, Tex.Cr.App., 540 S.W.2d 693, which he acknowledges is adverse to his position, be overruled. We decline to so hold and overrule the ground of error.

He next asserts the trial court erroneously refused to inform the jury in the charge at the guilt stage of the punishment alternatives for capital murder. The court properly reserved the punishment issues for the punishment stage, as is required under the express terms of Art. 37.071, supra. The ground of error is without merit.

Finally, appellant argues that the jury charge authorizing a “no” verdict under Art. 37.071, supra, on agreement of ten jurors is unconstitutional. He contends this violates the requirement of a unanimous verdict, and cites Art. 5, Sec. 13, Texas Constitution, and Art. 36.29, V.A.C.C.P. The constitutional right to a unanimous verdict under the cited provision extends to felony criminal cases. See Clark v. State, 161 Tex.Cr.R. 278, 276 S.W.2d 819; cf. Pandel v. State, 153 Tex.Cr.R. 282, 219 S.W.2d 689. See also Interpretive Commentary to Vernon’s Ann.Tex.Const., Art. 5, Sec. 13, in which it is stated:

“Proponents of the unanimous rule at the Constitutional Convention of 1875 claimed that ‘cheap justice was injustice’, but they were successful only to the extent that the convention retained the unanimous rule in criminal cases of felony.”

The provision here under attack, however, inures to the defendant’s benefit in that it allows a favorable verdict resulting in life imprisonment to be returned on agreement of ten jurors, whereas the position urged by appellant would require a defendant in such circumstances to face the ordeal of a retrial and the possibility of a death-producing verdict by a new jury. We hold the constitutional right to a unanimous verdict in felony cases extends only to the return of a verdict adverse to the accused, and that the legislature may provide for the return of a verdict favorable to the accused on less than unanimous agreement. As to the contrary statutory rule of Art. 36.29, supra, we hold the special provision of Art. 37.071, supra, controls over the general provision. See Jones v. State, Tex.Cr.App., 552 S.W.2d 836. The ground of error is overruled.

The judgment is affirmed.


text:
    Michael JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 54642.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.

      Joseph (Sib) Abraham, Jr., and Charles Louis Roberts, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Thomas C. Roepke, Asst. Dist. Atty., El Paso, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for credit card abuse; punishment was assessed at five years. V.T.C.A., Penal Code Sec. 32.31(b)(1)(A).

Appellant challenges the sufficiency of the evidence to show he was the person who presented the stolen credit card. We sustain the contention and reverse the conviction.

The State called four witnesses: Ruby Thomas, a waitress at the Montana Mining Company in El Paso; Robert Waldman, cashier at the same establishment; Richard Griffin, owner of the Master Charge credit card presented at the Montana Mining Company; and Refugio Barrera, the arresting officer.

Thomas testified that on February 17, 1976, appellant and another man came into the Montana Mining Company where she served them as cocktail waitress. Appellant presented her with a Master Charge credit card for payment, and she took the card to cashier Waldman. Thomas was unable to testify to the name that was on the credit card, and was not asked to identify it.

Waldman testified that on the night in question waiter Frank Mangan brought him a Master Charge credit card for payment of a bill. When he checked the card against the cancellation bulletin, he found it was listed, so he phoned Master Charge. They told him to keep the card and call the police, as it had been reported stolen. He testified the card was in the name of Richard Griffin and identified State’s exhibit 1 as the card presented that night. He was not able to identify appellant as the person who presented the card.

Griffin identified State’s exhibit 1 as his credit card that he had lost in November 1975 in New Orleans.

Barrera testified that on February 17, 1976, he arrested appellant at the Montana Mining Company upon the representations of manager Richard Seery that he was trying to use a lost or stolen credit card.

The testimony of these witnesses does not show that appellant presented a Master Charge credit card belonging to Richard Griffin as alleged by the State. The only witnesses who identified the credit card and testified that it was in the name of or belonged to Richard Griffin were cashier Waldman and Griffin himself, but neither of these witnesses identified appellant or testified that he presented the card. Wald-man testified that he received the card from Mangan, but no such witness was called to testify. The only two witnesses that identified appellant were Thomas and Barrera, but neither of them testified that he presented Griffin’s credit card, nor did either identify the Griffin card introduced in evidence. Thomas testified that she gave Waldman the card presented by appellant, while Waldman testified that the Griffin card was given to him by Mangan. There is no evidence identifying the card presented to Thomas as the Griffin card, nor is there any evidence connecting appellant with the Griffin card introduced by the State.

The judgment of conviction is set aside and in view of the insufficiency of the evidence to support a finding of guilt, the judgment is reformed to show an acquittal. Art. 44.37, V.A.C.C.P.; see Burks v. U.S., -U.S.-, 98 S.Ct. 2141, 57 L.Ed.2d 1 and Greene v. Massey, - U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15.

      . Defense witness Alice Duncan testified that she saw a person who called himself Richard Griffin give appellant a Master Charge credit card for a gambling debt in New Orleans on February 14, 1976. There is no evidence, however, that this card was the one presented in El Paso, nor did this witness identify State’s exhibit 1 as the card she saw.

      . Art. 44.25, V.A.C.C.P., is, to the extent of conflict with the federal constitutional requirements of jeopardy protection expressed in the United States Supreme Court decisions cited above, unconstitutional.


author: DALLY, Judge.

text:
    Lorenzo CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 55207.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    No appearance for appellant.
    No appearance for appellee.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation wherein appellant was convicted of theft by bailee; the punishment, three years’ confinement.

The record in the instant case does not contain a transcription of the court reporter’s notes, and no brief was filed in the trial court in appellant’s behalf pursuant to Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P. On June 22, 1977, this Court issued an opinion in which the appeal in this cause was abated. The purpose of the abatement was to allow the trial court to determine whether or not appellant was represented by retained or appointed counsel since there had been some indication of indigency in the record and no brief had been filed in appellant’s behalf.

On July 21, 1978, we received a supplemental transcript from the trial court which indicates that the mandate of abatement has been satisfied. The trial court conducted a hearing to determine whether or not appellant was indigent, whether he was represented by retained or appointed counsel, and why counsel had not filed a brief in appellant’s behalf.

The facts as discovered by the trial court at the aforementioned hearing reflect that appellant was in fact represented by retained counsel for purposes of appeal and that he was released pursuant to an appeal bond shortly after sentencing. The record also reflects that appellant’s retained counsel has not seen appellant since the date of his release from the Harris County Rehabilitation Center and that counsel, through discussions with various members of appellant’s family, believes that appellant resides somewhere in Michigan. The trial court correctly could not presume that appellant was indigent because of the fact that appellant made initial arrangements to retain counsel on appeal and secured his release on an appeal bond due to representations that appellant was to pursue his appeal as a non-indigent.

The fact that at one time prior to trial in this cause the trial court appointed counsel for appellant is not dispositive of the issue of appellant’s indigency for purposes of appeal. This Court has held that it is incumbent upon the appellant, whether indigent or not, to exercise diligence in securing a copy of the court reporter’s notes. Hoagland v. State, 541 S.W.2d 442 (Tex.Cr.App.1976); Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Ex parte Thorbus, 455 S.W.2d 756 (Tex.Cr.App.1970). As the supplemental record reflects, we are not faced with the situation as in Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970) where retained counsel has bowed out without notice to the court or the accused which frustrates forever accused’s right to protect his vital interests. In the instant case, appellant has executed an appeal bond, made preliminary arrangements to retain counsel on appeal, and thereafter voluntarily absented himself from the jurisdiction of the court. In essence, appellant has not exercised due diligence in pursuing the appeal.

We have found nothing in the record which would require our review in the interest of justice under Art. 40.09(13), Vernon’s Ann.C.C.P.

The judgment is affirmed.


text:
    Randy Lee UNDERWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 55368.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    Thomas A. Autry, Austin, for appellant.
    Ronald D. Earle, Dist. Atty., and Bill White, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana, wherein the punishment was assessed by the court at two (2) years, probated.

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

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

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

On appeal appellant challenges the validity of the search, contending the search warrant affidavit did not meet the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We need not reach this contention as we agree with appellant’s second claim that the evidence is insufficient to sustain the conviction of this appellant.

The record reflects that Austin police officers executed a search warrant at 3219 Nancy Gale in Travis County on February 10, 1974, which was based on an affidavit which stated, among other things, that Terry Ayers and Diana Ingram were keeping, using and selling marihuana at said address. Upon entering the house, the officers found the appellant Underwood and Susan Ray in the living room. Ayers was behind a bathroom door with a gun, which he surrendered, and Diana Ingram was found hiding in a closet in which two baggies of marihuana were discovered. Two marihuana cigarettes were found in the bedroom.

Sgt. James Belvin testified that additional marihuana was found in a gray can on the side table in the dining room, in a red fruit cake can on the floor beside a chest in the living room, and that marihuana seeds were found in a Mason jar on top of the chest and in a coffee can in the chest. The house had a combination living room-dining room which was described as a “big area.” Although Belvin first described the chest as being in the living room, his later testimony placed it in the dining room. Sgt. A. P. Lamme of the Austin police department described the amount of marihuana found as being seventeen to twenty-one ounces with thirteen ounces being seeds. $1,300.00 in cash was also found.

The officers stated that no check was .made to see who had leased or rented the house. The utilities were in the name of one Terry Newmar, which Lamme thought was a fictitious name. Some mail or personal papers were seized, but Lamme stated they “were all to their post office box they had been using out in Manchaca, as I recall.” Lamme did not describe whom he meant by “they” and the names on papers were not revealed nor were the papers introduced into evidence. Lamme stated that their surveillance showed that Susan Ray had arrived with a suitcase just two hours before the execution of the search warrant, and she apparently was not prosecuted. The officers did not testify what their on and off surveillance showed, if anything, as to this appellant. There was no showing that in the search of the appellant, which was conducted at the scene, either contraband or cash was found on his person.

The appellant called Dan Tanner, who testified that the appellant was his roommate and lived with him at a different address at the time. No rebuttal evidence was offered.

An accused may with another or others jointly possess dangerous drugs or narcotics. Thus possession of such items need not be exclusive and evidence that the accused jointly possessed narcotics with others is sufficient to sustain a conviction. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975), and cases there cited. It must be remembered, however, that mere presence alone at a place where narcotics or dangerous drugs are being used or possessed by others does not justify a finding of joint possession. Brooks v. State, 529 S.W.2d 535 (Tex.Cr.App.1975); Woods v. State, supra; Curtis v. State, supra; Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App.1975), and cases there cited.

In Curtis v. State, supra, this court wrote:

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

It has further been held that where an accused is not in exclusive possession of the premises it cannot be concluded that he had knowledge of the contraband and control over it unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Woods v. State, supra, at p. 18, and cases there cited.

With this background, we return to the facts of this case. Officers, armed with a search warrant, conducted a search at the address in question pursuant to a search warrant. The warrant was based on an affidavit which states Ayers and Ingram were keeping, using and possessing marihuana. The appellant was found in the living room of the house at the time of the search. There was no showing that he had leased or rented the house, had the utilities in his name, or shared joint possession of the house. None of his personal clothing or possessions were shown to be in the house. No cash or contraband was shown to have been found on his person. The personal papers and mail which were seized bearing a different address were not shown to reflect his name. There was no evidence of furtive gestures toward the contraband when the officers entered the premises, no attempt to escape, and no evidence of any marihuana smoke, no evidence of the appellant being under the influence of marihuana or other drugs, and no incriminating statements at the time of arrest. The record does not establish appellant’s position in the living room-dining room so as to show close proximity or plain view. Further, the mere presence of an accused near where the prohibited items are found, standing alone, is not sufficient to show possession. Hernandez v. State, supra, and cases there cited.

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

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

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

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

      . It appears the dining room was offset somewhat from the living room.

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


text:
    Ruben Bryan ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 55662.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    Arthur Neale Potts, Jr., Belton, for appellant.
    Arthur C. Eads, Dist. Atty., and Gary W. Proffer, Asst. Dist. Atty., Belton, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for driving while intoxicated, subsequent offense, in which the punishment was assessed by the jury at three (3) years’ confinement in the Texas Department of Corrections. The imposition of sentence was suspended and appellant was placed on probation., Notice of appeal was then given.

In his sole ground of error, appellant attacks the sufficiency of the evidence to convict because there was no legally admissible evidence to show that he was driving the motor vehicle.

The record reflects that the arresting officer had since joined the Marine Corps and was not available to testify at the trial. Although it appears that there were five people in another car which was involved in a minor collision with appellant’s car, no one from that automobile was called as a witness.

In an attempt to place appellant behind the wheel of the vehicle, the State, over objection, introduced a “Texas Peace Officer’s Accident Report” which indicated that appellant was the operator of a vehicle. Included with that report was an affidavit of the arresting officer stating that he observed appellant behind the wheel of the vehicle immediately after the accident and that appellant appeared to be intoxicated.

§ 47 of Article 6701d, V.A.C.S., in part provides:

“All accident reports made by persons involved in accidents, by garages, or peace officers shall be without prejudice to the individual so reporting and shall be privileged and for the confidential use of the Department [of Public Safety] or other State agencies having use for the records for accident prevention purposes

Accordingly, the court erred in admitting the report into evidence and we find the evidence insufficient to support the judgment of the court.

The judgment is reversed and the cause remanded.

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

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

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

For the reasons stated, the judgment is reversed.


author: PHILLIPS, Judge.

text:
    Felix Aguilar GONZALEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 55686.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      John J. Herrera, Houston, for appellant on appeal only.
    Carol S. Vance, Dist. Afty., Winifred E. Akins and Sarah Bullock, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

Appellant was convicted for the unlawful possession of heroin. Punishment was assessed at three years’ imprisonment.

Appellant’s first ground of error complains of the trial court’s failure to submit a specially requested instruction on the law of entrapment as set forth in V.T.C.A., Penal Code, Section 8.06. The motion was submitted orally and was overruled by the trial court. We note that this procedure fails to comply with the requirements of Article 36.15, V.A.C.C.P., which provides in pertinent part:

“Before the court reads its charge to the jury, counsel on both sides shall have a reasonable time to present written instructions and ask that they be given to the jury.” (Emphasis added)

See Black v. State, Tex.Cr.App., 503 S.W.2d 554. Thus, this conviction cannot be reversed on this ground of error unless it appears “from the record” that the failure of the trial court to grant this specially requested instruction “was calculated to injure the rights of defendant” or the appellant “has not had a fair and impartial trial.” See Article 36.19, V.A.C.C.P.

The arresting police officer testified that while in his unmarked undercover police car he received a radio broadcast that one of his informers had contacted him and he was to contact the informer. Upon returning the call he received information that a man named Felix, a Latin American male, approximately 30 years of age, would be at the intersection of North Milby and Menard in a beat up, blue Studebaker, possessing two packets of heroin. This informant had provided reliable information twice previously and knew heroin since he was a former addict. The officer and his two partners arrived at North Milby and Menard at approximately 7 p. m. and observed the vehicle as it was departing the intersection. They pulled to the side of the vehicle as it stopped at a stoplight several blocks away, identified themselves as police officers, and observed two tinfoil packets lying on the floorboard by the driver’s side. The appellant was then arrested for possession of heroin, taken to the police station and processed. A Marquis test at that point proved positive. The police officer denied that Vincent Rosales was his informer, but admitted that he had twice arrested Vincent Rosales for possession of heroin and that his cases were still pending at the time of appellant’s trial. Upon questioning by appellant’s trial counsel, the arresting officer testified that he had once before seen the appellant in a transaction involving heroin and that the arrest of the second party in that transaction produced heroin. He admitted discussing appellant with his informant prior to the arrest, but expressly denied planting dope on the appellant in conjunction with the informant.

The appellant testified that on the day of his arrest he received a phone call at approximately 6 p. m. from Vincent Rosales. Vincent Rosales related that he had the money he owed the appellant for tires previously purchased, approximately $50.00. Appellant was told to come to Rosales’ house at Menard and Drennan. Appellant proceeded to Rosales’ house at which time Rosales was departing to pick up his wife from work. He handed the two packets of heroin to the appellant, asked him to hold them so that his wife would not discover them and said that he would return shortly with the money. Rosales informed the appellant that the content of the packages was heroin. Rosales later returned and said he would come by appellant’s home later with the money, and appellant drove off with the packages. The appellant admitted using heroin twice before, near the time of his arrest, and that he knowingly possessed heroin at the time he was arrested.

By no stretch of the imagination can it be contended that this evidence raises the issue of entrapment. There is nothing to indicate that the appellant took possession of the heroin because he was induced to do so by the arresting officer or any other individual acting as an agent for the arresting officer. It is noted that the appellant voluntarily departed Vincent Rosales’ premises while knowingly possessing heroin. Appellant’s first ground of error is overruled. See Bonsai v. State, Tex.Cr.App., 502 S.W.2d 813.

Appellant’s second ground of error complains of the trial court’s action in refusing to allow the appellant to introduce evidence of the arresting officer’s previous transactions with Vincent Rosales. First, the arresting police officer expressly denied that Vincent Rosales was the informant involved in this case. Second, after a hearing outside the presence of the jury, the trial court ruled that the testimony of the arresting officer’s previous arrests of Vincent Rosales would not be allowed to be introduced before the jury since it was completely irrelevant. Third, notwithstanding this ruling, the appellant was allowed to get the precise information he desired before the jury. The appellant was allowed to explore before the jury the arresting officer’s previous arrests of Vincent Rosales and the fact that those cases were still pending. Since the evidence complained of as being denied introduction before the jury was in fact introduced before the jury, there is no harm should there even be error. Appellant’s second ground of error is overruled.

There being no reversible error, this case is affirmed.

      . “(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
      (b) In this section ‘law enforcement agent’ includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.”

      . See and compare Article 36.14, V.A.C.C.P.


author: W. C. DAVIS, Judge.

text:
    Norman Leslie GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 55942.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 20, 1978.

      Gary D. Jackson, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler and Reed Prospere, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, YOLLERS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for indecency with a child. The jury assessed the punishment, enhanced by one prior conviction, at fifteen years in the Texas Department of Corrections.

In his first ground of error, appellant contends that his indictment is fundamentally defective in that it fails to allege all of the elements of the offense. Specifically, he contends that the indictment fails to allege that he committed the act with knowledge that the child was present.

V.T.C.A. Penal Code, Sec. 21.11 provides that,

“(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
******
(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”

The indictment under which appellant was prosecuted alleged in part that appellant,

“did unlawfully, then and there knowingly and intentionally expose his genitals to Sheri Lynn Cagle, a child younger than 17 years and not then and there the spouse of the Defendant, with the intent to arouse and gratify the sexual desire of the Defendant . . . ”

Since no motion to quash the indictment was filed in the trial court and, therefore, the sufficiency of the indictment is questioned for the first time on appeal, only jurisdictional defects will be considered. Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978); Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975); American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). A jurisdictional defect in an indictment is a defect which renders the indictment insufficient in that it fails to allege the constituent elements of the offense. Seaton v. State, supra; Terry v. State, supra. If the indictment alleges an offense was committed by the defendant, then it will be sufficient in law to support a verdict of guilty; only if the defect be of such a degree as to charge no offense against the law and thereby be void, will an indictment be fundamentally defective and may therefore be raised for the first time on appeal. American Plant Food Corp. v. State, supra.

Therefore, this Court must ascertain whether this indictment, when read as a whole, sufficiently charges the offense of indecency with a child. Seaton v. State, supra; Childs v. State, 547 S.W.2d 613 (Tex. Cr.App.1977); Clark v. State, 527 S.W.2d 292 (Tex.Cr.App.1975). We hold that this indictment does charge an offense against the law and, therefore, is not fundamentally defective.

When read as a whole, the indictment alleges that appellant knowingly exposed his genitals to a child younger than 17 with the requisite intent. The allegation that he knowingly exposed his genitals to the complaining witness is sufficient to allege that he did so knowing that she was present. That he committed the act to her is sufficient to allege that he committed the act with knowledge of her presence.

Thus, the allegations in the indictment do sufficiently state that appellant knew that the complaining witness was present when he exposed his genitals. Therefore, the indictment, when read as a whole, sufficiently sets out this element of the offense. See Seaton v. State, supra; Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977); Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976). See also Clark v. State, 527 S.W.2d 292 (Tex.Cr.App.1975). Appellant’s first ground of error is overruled.

In his second ground of error, appellant complains of the following jury argument by the prosecutor at the punishment phase of the trial:

“Also, [appellant] shows no remorse whatsoever. He’s also the kind of man that would lie. He gets up there and he says ‘If I needed an alibi, I’d get it. I’ll fight the system. I’m not going to rehabilitate myself; I’ll just fight it.’ That’s exactly what kind of man you’re dealing with. He is a remorseless habitual criminal and he’s not going to change. He is a man without feelings for little children. He is without feelings for the little girls and their parents and he’s without feelings for his wife, when he’d go out there and do this sort of thing when he’s married to a woman. He’s a man who under the evidence shows no signs of conscience and in every sense of the word he’s a man of evil intent. He’s just plain bad and that’s what the evidence shows him to be

Appellant now contends that this argument was outside the record and highly prejudicial. However, the record reflects no objection to this argument. No objection having been made, no error is preserved for review. Wilder v. State, 558 S.W.2d 883 (Tex.Cr. App.1977); Hunter v. State, 530 S.W.2d 573 (Tex.Cr.App.1975); Campbell v. State, 525 S.W.2d 4 (Tex.Cr.App.1975); Cox v. State, 523 S.W.2d 695 (Tex.Cr.App.1975). We decline appellant’s suggestion that such argument was fundamental error. This ground of error is overruled.

The judgment is affirmed.


author: ROBERTS, Judge.

text:
    Ex parte Ben Elick CANNADY.
    No. 56907.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    No appearance for appellant.
    No appearance for appellee.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted of the offense of robbery by assault, on his plea of guilty to the court in Cause number 10,199, and was sentenced to a twenty (20) year term of imprisonment on October 7, 1970. No appeal was perfected.

Petitioner filed his application for writ of habeas corpus in the trial court, contending that the indictment upon which he was tried was fatally defective since it failed to allege or describe the property taken. The trial court entered its findings of fact and conclusions of law recommending the application be denied.

Initially, we note that the indictment in the case at bar alleges that on or about February 19,1970, the petitioner, Ben Elick Cannady:

“[D]id then and there unlawfully and wil-fully make an assault upon the person of Pauline Taylor hereinafter styled injured party, and did then and there by the said assault and by violence to the said injured party, and by then and there putting the said injured party in fear of life and bodily injury and by then and there using and exhibiting a firearm, to-wit: .32 caliber revolver did then and there fraudulently take from the person and possession of the said injured party, corporeal personal property then and there belonging to the said injured party; without the consent and against the will of said injured party, and with the fraudulent intent then and there on the part of the said defendant to deprive the said injured party of the value of same, and with the intent to appropriate the same to the use and benefit of the said defendant; Ben Elick Cannady;” (emphasis supplied)

Petitioner contends that the failure of this indictment to properly describe the property taken renders the indictment fatally defective, and he relies on Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App.1970) and Wilson v. State, 171 Tex.Cr.R. 391, 356 S.W.2d 928. In Mankin this Court held that robbery is only an aggravated form of theft, and that a description of the property taken was essential to the validity of the indictment, relying on Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561, and Wilson v. State, supra. It was further held that the failure to give any description of the corporeal personal property was a fatal defect, which could be raised for the first time on appeal.

Since Mankin was decided, this Court has rendered numerous other opinions holding that all the essential elements of a robbery indictment under Art. 1408, V.A.P.C. (1925) must be included in the indictment, otherwise that indictment is rendered fatally defective. See Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976). See also Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977), and Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976).

Additionally, this Court has held that fatally defective indictments may be challenged by way of post-conviction habeas corpus. See Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975); Ex parte Haywood, 550 S.W.2d 292 (Tex.Cr.App.1977); Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977).

For the reasons stated, we are of the opinion that the indictment in the case at bar is fatally defective. See Mankin v. State, supra. Thus, the relief prayed for is granted, and the conviction in Cause number 10,199 is reversed, and the prosecution in this case is dismissed.

It is so ordered.

VOLLERS, J., dissents for the same reasons as in Ex parte Canady, 563 S.W.2d 266 (Tex.Cr.App.1978).