author: DALLY, Commissioner.

text:
    Byron Phillip DOGGETT, Appellant, v. The STATE of Texas, Appellee.
    No. 50280.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    Rehearing Denied Jan. 7, 1976.

      Ben D. Sudderth and Keith Woodley, Comanche, for appellant.
    Bob Glasgow, Dist. Atty., Stephenville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of possession of more than four ounces of marihuana; the jury assessed punishment at imprisonment for 2 years and a fine of $1,000.

Appellant attacks the sufficiency of the evidence; he also contends the trial court erred in overruling his challenge of a juror for cause and complains of the erroneous admission of evidence.

The evidence adduced at trial showed that police officers kept under surveillance a garden and the surrounding area of a plot of land owned by appellant; they observed a large number of marihuana plants growing in various locations near the garden. Appellant and another, Leslie Sharp, entered the garden area on May 21, 1974, and proceeded to water and discuss the marihuana plants; after observing the conduct of appellant and Sharp, Officers Coffee and Cummins arrested them.

In two grounds of error appellant asserts that the evidence is insufficient to prove that he possessed more than four ounces of marihuana. V.A.C.S., Article 4476-15, Controlled Substances Act, Sec. 4.05, provides in pertinent part:

“(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.
“(b) An offense under Subsection (a) of this section is:
“(1) a felony of the third degree if he possesses more than four ounces;
“(2) a Class A misdemeanor if he possesses four ounces or less but more than two ounces;
“(3) a Class B misdemeanor if he possesses two ounces or less.”

Appellant was found guilty of a third degree felony under Sec. 4.05(b)(1).

Gary Westermann, a Department of Public Safety chemist and toxicologist, testified that he received the seized marihuana plants — roots, stalks, stems and leaves — in a garbage bag; the bag was marked State’s Exhibit # 18. The plants were allowed to dry, then placed in another bag marked

State’s Exhibit # 19. Westermann testified that the contents of State’s Exhibit # 19, whole dried marihuana plants, weighed 217.8 grams, or 7.65 ounces. He later indicated that he stripped all the leaves off the plants, conducted his analysis, and placed the remainder in another container; the container was marked State’s Exhibit # 20; there was no testimony concerning the weight of the contents of this latter exhibit. Though the testimony is not perfectly clear, a fair reading would indicate that the 7.65 ounces of marihuana included stems, stalks, roots and leaves.

Sec. 1.02 of the Controlled Substances Act provides:

“For the purposes of this Act:
“(17) ‘Marihuana’ means the plant Cannabis sativa L., whether growing or not; the seeds thereof; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, or its seeds. However, it does not include the resin extracted from any part of such plant or any compound, manufacture, salt, derivative, mixture or preparation of the resin; nor does it include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.” (emphasis added.)

The appellant contends that for the State to prove he possessed four ounces of marihuana it must negative the existence of the excluded materials set out in Sec. 1.02(17) of the Act. We disagree.

In Torres v. State, 161 Tex.Cr.App. 480, 278 S.W.2d 853 (1955), a similar claim was advanced under former Penal Code Article 725b, Sec. 1(13) (defining “cannabis” as used in that Act). In that case appellant complained of the trial court’s failure to give a special instruction based upon the provision in the above section of Article 725b, which read, in part, as follows:

“. . . but shall not include the non-resinous oil obtained from such seed, nor the mature stalks of such plant, nor any product or manufacture of such stalks (emphasis added.)

The Court held that in light of the defendant’s failure to meet his burden of proof under the above exception the instruction was properly refused.

In Getters v. State, 170 Tex.Cr.R. 331, 340 S.W.2d 806 (1960), defendant asserted that it was incumbent upon the State to prove that the seeds contained in the marihuana which was seized were viable and not sterilized. The Court held that:

“If this characteristic [non-viability] was controlling, it was a defense in the nature of an excuse, and the burden of proof was on the appellant under Section 21 of said Art. 725b, V.A.P.C. . .

Smith v. United States, 106 U.S.App.D.C. 26, 269 F.2d 217 (Cir. 1959), involved a statute which defined marihuana in language nearly identical to that of Sec. 1.02(17) of our statute. In answering precisely the same contention as that before us, the Court there said:

“There was no testimony that the Cannabis sativa in appellant’s cigarettes was, or that it was not, derived from the sources which the statute says marihuana ‘shall not include’. This does not affect the validity of the conviction. It is settled that an indictment ‘founded on a general provision defining the elements of an offense * * ⅜ need not negative the matter of an exception made by a proviso or other distinct clause, whether ⅛ the same section or elsewhere, and that ⅛ is incumbent on one who relies on such an exception to set it up and establish it.’ McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed.2d 301.”

See and compare, McClanahan v. State, 394 S.W.2d 499 (Tex.Cr.App.1965); see also, Briscoe v. United States, 336 F.2d 960 (D.C.Cir.1964); Ziatz v. People, 171 Colo. 58, 465 P.2d 406 (1970); State v. Karathanos, 158 Mont. 461, 493 P.2d 326 (1972); State v. Conley, 32 Ohio App.2d 54, 288 N.E.2d 296 (1971); Williams v. State, 437 S.W.2d 82 (Mo.1969); Hall v. State, 291 Ala. 397, 281 So.2d 662 (1973); cf. Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975).

Sec. 5.10 of the Controlled Substances Act provides, in part, as follows:

“(a) It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit.”

We hold that the provisions of Sec. 1.02(17) of the Controlled Substances Act which exclude certain materials from the definition of marihuana are in the nature of exceptions and that the burden of going forward with the evidence pertaining thereto rests upon the person claiming their benefit; the burden in the instant case belonged to the appellant. The only testimony concerning the maturity of the marihuana plants seized in this case came from a State’s witness who indicated that the plants appeared to be young or somewhat less than mature. The appellant did not meet his burden of proof, nor did he request any instructions based upon the exceptions contained in Sec. 1.02(17) of the Controlled Substances Act. These grounds of error are overruled.

Appellant further contests the sufficiency of the evidence, asserting that he was not shown to be in possession of all of the plants seized, and that therefore he was not shown to be in possession of more than four ounces of marihuana. The marihuana plants were taken from two locations: the greater number were distributed in the immediate vicinity of appellant’s garden, while others were located just south of the garden on property which belonged to appellant’s father. There was testimony that both groups of plants appeared to have been cultivated. The appellant testified that he had access to his father’s land and often entered it to care for cattle which he jointly possessed with his father. The appellant was observed watering the plants which were located in the garden area.

Appellant did not request a separate instruction on possession of the plants located on his father’s property. The jury was charged on the law of possession, and by their verdict found the appellant in possession of all of the plants which were seized. Possession of a narcotic drug or a controlled substance need not be shown to be exclusive. Mitchell v. State, 517 S.W.2d 282 (Tex.Cr.App.1975); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975). The proximity of all of the plants to the garden and the conduct of the appellant were enough to support the logical inference that the appellant exercised actual care and control over all of the plants which were seized; therefore, the evidence is sufficient to support the jury’s verdict. This ground of error is overruled.

Appellant next complains of the admission into evidence of State’s Exhibit 1, the search warrant, supporting affidavit, and return; he asserts that they contained inadmissible hearsay statements. At the outset we note that it is not altogether clear that these items were ever seen by members of the jury. When the State offered the documents into evidence, appellant objected and the following colloquy ensued:

“THE COURT: I will allow the search warrant and the return to be introduced into evidence before the jury. The affidavit, I think, should only be introduced for the record.
“MR. GLASGOW [PROSECUTOR]: Well, Your Honor, that’s certainly fine. All we are doing is just introducing that for the record anyway. No intent to show it to the jury.
“THE COURT: It’s allowed for that purpose.”

Thereafter, outside the presence of the jury, counsel for appellant, in urging a motion for mistrial, stated the following:

“. . . and the State announced after it had tendered [State’s Exhibit 1] into evidence in the presence of the Jury that he was offering it solely for the record and not for the Jury to see, having caused the Defendant to make an objection to it going into evidence and calculated to make the Jury believe that the Defendant is attempting to prevent the Jury from seeing matters that should be in evidence, and then in the presence of the Jury stating that it was being offered for the Court alone and not for the use of the jury . . . ”

Although the record leaves some doubt as to the access the jury had to State’s Exhibit 1, we will assume that at least the search warrant and return were available for inspection by members of the jury.

The recitals contained in the search warrant and return were hearsay and the instruments were not admissible before the jury for any purpose. Figueroa v. State, 473 S.W.2d 202 (Tex.Cr.App.1971); Herbert v. State, 157 Tex.Cr.R. 504, 249 S.W.2d 925 (1952); 51 Tex.Jur.2d, Searches and Seizures, Sec. 45, p. 729. Their admission into evidence over objection was error. McGowan v. State, 158 Tex.Cr.R. 319, 255 S.W.2d 512 (1953); Arnold v. State, 157 Tex.Cr.R. 313, 248 S.W.2d 738 (1952); Byars v. State, 154 Tex.Cr.R. 515, 229 S.W.2d 169 (1950). However, whether such error calls for reversal must turn on the facts of each particular case. White v. State, 119 Tex.Cr.R. 338, 45 S.W.2d 225 (1932); Hamilton v. State, 120 Tex.Cr.R. 154, 48 S.W.2d 1005 (1932). It would be necessary to reverse the conviction only if the receipt of the instruments was harmful. Gunter v. State, 109 Tex.Cr.R. 408, 4 S.W.2d 978 (1928); 51 Tex.Jur.2d, Searches and Seizures, Sec. 539, p. 741.

The recitals in the warrant and return were extrajudicial statements made by Officer Cook concerning what he had personally observed. Officer Cook testified at the trial to substantially the same facts, though in greater detail, as those alleged in the instruments in question. Cf. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

As a general rule a judgment will not be reversed for the erroneous admission of improper evidence if the same facts were proved by other proper testimony. Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1973); Botello v. State, 172 Tex.Cr.R. 634, 362 S.W.2d 318 (1962); 5 Tex.Jur.2d, Appeal and Error—Criminal, Sec. 446, p. 704. Officer Cook’s testimony that he observed the appellant watering and caring for the marihuana plants was properly admitted; therefore, the erroneous admission of the search warrant and return was not harmful. This ground of error is overruled.

Appellant lastly contends that the trial court erred in failing to grant a challenge for cause of a prospective juror. Caraway, the prospective juror, stated that he could be fair and impartial at the guilt or innocence phase of the trial, but due to strong feelings about people who use marihuana, he was uncertain as to whether he could be fair and impartial at the punishment phase.

The court overruled appellant’s challenge for cause and appellant used one of his peremptory strikes on Caraway. In urging a motion for mistrial based upon the overruling of the challenge for cause, counsel for appellant stated:

“. . . by allowing Mr. Caraway to remain on the panel and not adding at least one strike to—for the use of the Defendant, it caused the Defendant to not be able to exercise his strikes and have ten challenges of Jurors—of qualified Jurors, the result being that the Defendant could only—was only allowed to strike nine qualified Jurors, and it was necessary to use his tenth strike to strike a Juror which from his own testimony before this Court was disqualified as a Juror in this case . . .”

Appellant did not state nor show that he was forced to take an objectionable juror; the assertion is made for the first time in appellant’s brief that appellant was forced to take a named juror who was objectionable to him. No injury is shown. See Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743 (1958); cf. Rodriguez v. State, 399 S.W.2d 818 (Tex.Cr.App.1966); Powers v. State, 497 S.W.2d 594 (Tex.Cr.App.1973). This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.

ROBERTS, J., dissents on the ground that the burden of proof never changes to the defendant; it is on the State throughout the trial.

      . “In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provisions of this Act, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this Act, and the burden of proof of any such exception, excuse, proviso, or exemption, shall be upon the defendant.”

      . “. . . The statute provides that ‘The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.’ 26 U.S.C. § 4761(2), 68A Stat. 566.”

      . Compare with Figueroa v. State, supra, wherein the defendant was convicted for the possession of heroin recovered from his wife at a time when he was not present. The State’s case was predicated primarily upon an extrajudicial written confession, one which the appellant testified was involuntary and given to secure the release of his wife. The Court stated that:
      “It would be difficult to say that the introduction of the hearsay recitals in the affidavit to the effect that an unidentified informer had told police officers that the appellant was ‘using, keeping and possessing heroin and dispensing heroin to various persons’ was not obviously harmful.” 473 S.W.2d at 204.


source: Caselaw Access Project

author: MORRISON, Judge. ROBERTS, Judge

license: Public Domain

text:
    Ricky Reynolds VAUGHN, Appellant, v. The STATE of Texas, Appellee.
    No. 50463.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.
    Rehearing Denied Jan. 9, 1976.

      Ronald D. Nickum, Amarillo, for appellant.
    Randall L. Sherrod, Dist. Atty., Canyon, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary of a habitation to commit injury to a child; the punishment, seven years.

In his first ground of error appellant charges the indictment is fundamentally defective because it fails to allege with particularity appellant’s specific intent. The pertinent portion of the indictment alleged that appellant did then and there

“intentionally and knowingly with intent to commit injury to a child enter a habitation which was not then open to the public, without the effective consent of Dan Reeder, the owner thereof . .” (Emphasis added)

The offense of burglary is defined in Y.T.C.A., Penal Code, Section 30.02(a)(1):

“(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with the intent to commit a felony or theft; . . . ” (Emphasis added.)

The issue before us is whether the indictment charges that entry was made with intent to commit a felony. V.T.C.A., Penal Code, Chapter 22, Assaultive Offenses, provides in part:

“Sec. 22.04. Injury to a Child
(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury, serious physical or mental deficiency or impairment, or deformity to a child who is 14 years of age or younger.
(b) An offense under this section is a felony of the second degree.”

The title or name of this offense, “Injury to a Child”, is a part of the original legislative act (Acts 1973, 63rd Legislature, Chapter 399, Section 1) and of the new Penal Code. Although the section caption to Section 22.04, supra, does not limit or expand the meaning of the statute, it is nevertheless part of the legislative enactment.

Although the better practice would be for the State to set forth the constituent elements of the intended felony, we hold this indictment sufficiently alleged entry with intent to commit a particular felony. This ground of error is overruled.

In grounds of error four and five appellant charges the indictment is fundamentally defective because it fails to set out the age and name of the child. Appellant was charged with burglary with intent to commit injury to a child. The age of the child is an essential element of the intended felony. See V.T.C.A., Penal Code, Sec. 22.-04.

In Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785, at page 787, we said:

“It has consistently been held by this Court that in assault cases the indictment or information need not allege the elements of the offense intended to be committed by the assault. Indictments alleging an assault with intent to rape, or to murder, or to rob the named complainant are not required to allege the elements of rape, murder or robbery.”

In Gonzales we rejected the contention that an indictment for burglary with intent to commit theft is fatally defective when the specific elements of theft are not alleged.

Appellant’s ground of error four is overruled.

Appellant contends the failure to name the child prevents him from using the disposition of this ease in bar of any prosecution for the same offense. The record does not contain a written motion to quash the indictment and appellant may not now raise this issue on appeal. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598.

By several grounds of error the appellant challenges the sufficiency of the evidence to support the conviction. His principal contention is that the evidence does not show that the appellant had the intent to commit injury to a child when he broke into the house in question. The prosecuting witness, an eleven year old girl, testified that she was asleep alone in her bedroom at 3:15 a. m. when she was awakened by someone “kissing and licking on my back” and that this continued for some six minutes. She had a clock at the head of her bed. She stated that there was a light on in the hall and she got a good look at the appellant as he left. She stated that she did not scream because appellant told her not to, and that as soon as he left she reported the incident to her mother.

Her mother testified that she was awakened by the prosecuting witness who was crying and screaming and that she ascertained that the door of their apartment had been broken into and the police were called.

It is clear that the evidence is sufficient to show an unlawful trespass, but appellant contends that it is not sufficient to show an intent to injure a child as denounced by V.T.C.A., Penal Code, Sec. 22.04.

Prosecutrix’ mother testified that her daughter was in a highly emotional state as the result of the appellant’s actions. Dr. Cannon, a licensed practicing psychologist who specialized in young people aged from five to seventeen, testified that in his opinion conduct as set forth above could reasonably be expected to cause psychological damage to a girl of prosecutrix’ age. He expressed the opinion that although prose-cutrix showed no mental impairment immediately after the incident, as she reached puberty she could be expected to be afraid to be by herself and feel insecure even in the shelter of her home or her bedroom.

We conclude that appellant’s conduct was calculated to cause mental impairment as denounced by the statute. Therefore, the evidence was sufficient to support the conviction.

Appellant next contends that the evidence is insufficient to show that the prose-cutrix’ father was the owner of the premises burglarized. He testified that when he returned home his wife reported the incident and he inspected the door which appeared to have been kicked in. The prose-cutrix’ mother testified that she lived at the premises burglarized and described the condition of “our front door”. We hold that this testimony is sufficient to show that prosecutrix’ father controlled and occupied the premises. Taylor v. State, Tex.Cr.App., 508 S.W.2d 393.

In ground of error seven appellant contends the State used a prior misdemeanor conviction not involving moral turpitude for impeachment during the guilt stage of the trial. On January 23, 1974, appellant had made a written confession to police that on January 19, 1974, he had entered a house in the early morning hours through an unlocked door and gone into a bedroom where a seven year old girl was sleeping and watched her until she awakened, then left. He pled guilty to criminal trespass and received one year’s probation in March 1974.

During the trial of this case appellant took the stand in his own behalf and denied committing the instant offense. Such denial was tantamount to a defense of alibi. Beard v. State, Tex.Cr.App., 456 S.W.2d 82.

On cross examination, he was asked whether he had entered a house on January 19, 1974, and watched a seven year old girl until she awakened. The instant offense occurred June 30, 1974, some six months later, and both offenses have several common distinguishing characteristics. Thus, proof that appellant had committed the January offense was proper to refute his defensive theory, as well as to show identity and a continuous course of conduct. McDonald v. State, Tex.Cr.App., 513 S.W.2d 44; Ransom v. State, Tex.Cr.App., 503 S.W.2d 810; Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97.

Appellant denied having committed the criminal trespass and the State then questioned him about the written confession and judicial confession he had made as being prior inconsistent statements. The conviction itself was not introduced or even mentioned by the State at the guilt stage, but, on re-direct examination, appellant, in attempting to explain his inconsistent statements, volunteered the fact that he had pled guilty and received one year’s probation.

Since the extraneous offense was admissible to refute his defensive theory, there was no error in using his prior inconsistent statements made in connection with that offense for impeachment purposes. The sanctions of Article 38.29, V.A.C.C.P., do not apply, as the State did not use the conviction for impeachment, but introduced the extraneous offense to refute his defense and used the prior inconsistent statements for impeachment purposes.

In his last ground of error, appellant complains of the testimony of Officer Morris concerning the prosecutrix’ identification of a photograph of appellant shortly after the offense. Although this testimony imper-missibly bolstered the prosecutrix’ in-court identification of appellant, we hold the error in admitting this testimony is rendered harmless by the testimony of Officer Guinn.

Officer Guinn testified immediately preceding Officer Morris and stated that the prosecutrix picked out appellant’s photograph from a picture lineup. Appellant did not object to this testimony; he objected only to the admission of the photograph and any testimony as to the details of the picture lineup. This same objection was made to the testimony of Officer Morris, and, in addition, counsel complained that Morris’ testimony bolstered the testimony of Guinn, but he did not object on the grounds that it bolstered prosecutrix’ testimony. Nothing is presented for review. Williams v. State, Tex.Cr.App., 530 S.W.2d 582 (delivered September 17, 1975); Cox v. State, Tex.Cr.App., 523 S.W.2d 695; Campbell v. State, Tex.Cr.App., 521 S.W.2d 636. Even if counsel had properly objected to Morris’ testimony, the error would be harmless in light of Guinn’s testimony. Wood v. State, Tex.Cr.App., 511 S.W.2d 37; Hawkins v. State, Tex.Cr.App., 505 S.W.2d 578.

The judgment is affirmed.

ODOM, J., concurs in the results.

ROBERTS, Judge

(dissenting).

The following opinion was originally prepared by Commissioner Davis. I hereby adopt it as my dissent to the majority’s disposition of this case.

“At the outset, it is contended that the indictment is fundamentally defective.

The pertinent portion of the indictment alleged that appellant did then and there

‘intentionally and knowingly with intent to commit injury to a child enter a habitation which was not then open to the public, without the effective consent of Dan Reeder, the owner thereof. . . ’ (emphasis supplied)

V.T.C.A. Penal Code, Section 30.02(a)(1), defines the offense of burglary:

‘(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with the intent to commit a felony or theft; . . .’ (emphasis supplied)

The indictment in the instant case charged that entry of the habitation was made ‘with intent to commit injury to a child.’ The offense of burglary as defined in Section 30.02(a)(1), supra, requires that entry be made with the intent to commit a felony or theft. Since the indictment does not charge that entry was made with the intent to commit theft, we must determine if the indictment avers that entry was made with intent to commit a felony.

The State urges that the elements of an offense whose intended commission is a part of a charged offense need not be fully alleged and calls our attention to holdings of this Court that the offense intended by an assault need only be named in the indictment. The State cites Small v. State [Tex.Cr.App.], 466 S.W.2d 281 (assault with intent to rape); Johnson v. State [Tex.Cr.App.], 384 S.W.2d 885 and Clark v. State [162 Tex.Cr.R. 493], 286 S.W.2d 939 (assault with intent to murder) and Thomas v. State [Tex.Cr.App.], 451 S.W.2d 907 and Hunter v. State [119 Tex.Cr.R. 558], 45 S.W.2d 969 (assault with intent to rob). Also, cited by the State is our recent opinion in Gonzales v. State [Tex.Cr.App.], 517 S.W.2d 785, where it was held that the constituent elements of theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.

We find the State’s reliance on the foregoing cases and Article 21.13, V.A.C.C.P., to be misplaced. Not every infliction of ‘injury to a child’ is a felony offense. Thus, the infliction of an ‘injury to a child’ is not a felony per se and the averment in the indictment that entry was made with intent to ‘commit injury to a child’ does not amount to an allegation that entry was made with the intent to commit a felony offense.

We conclude that there is a complete failure to charge the offense of burglary since the indictment does not allege that the entry was made with the intent to commit theft or a felony offense. See Williams v. State [Tex.Cr.App.], 505 S.W.2d 838. If an indictment or information fails to allege that an offense was committed by the defendant, it is utterly insufficient and any conviction based thereon is void. American Plant Food Corporation v. State [Tex.Cr.App.], 508 S.W.2d 598.”

In addition to the foregoing, I note that-injury to a child can constitute the misdemeanor offense of simple assault under our new Penal Code. Sec. 22.01, V.T.C.A., Penal Code. Moreover, under the old Penal Code, even aggravated assault upon a child was a misdemeanor. Art. 1148, V.A.P.C. Thus, the importance of specificity in charging the commission of a felony in this indictment becomes even more apparent.

I would therefore reverse this conviction and order the indictment dismissed.

ONION, P. J., joins in this dissent.

      . See Faulks v. State, Tex.Cr.App., 528 S.W.2d 607 (decided October 22, 1975), footnote 1; Morrison and Blackwell, New Texas Penal Code Forms (1973), Sec. 22.04 and Sec. 30.02F; 2 Branch’s Ann. Penal Code, Sec. 30.02.

      . See Jackson v. State, Tex.Cr.App., 507 S.W.2d 231; Lyons v. State, 388 S.W.2d 950. Cf. Adams v. State, Tex.Cr.App., 514 S.W.2d 262.

      . Article 21.13, V.A.C.C.P., provides:
      ‘An indictment for an act done with intent to commit some other offense may charge in general terms the commission of such act with intent to commit such other offense.’

      . V.T.C.A. Penal Code, Sec. 22.04, provides:
      ‘(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury, serious physical or mental deficiency or impairment, or deformity to a child who is 14 years of age or younger.
      (b) An offense under this section is a felony of the second degree.’


author: ROBERTS, Judge.

text:
      Felix HERNANDEZ, Appellant,v. The STATE of Texas, Appellee.
    No. 50603.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.

      Tom R. Scott, Midland, for appellant.
    James A. Mashburn, Dist. Atty., Jack K. Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for unlawful delivery of a controlled substance, to-wit: heroin. After finding appellant had been twice previously convicted of felonies, his punishment was assessed at life. Sec. 12.42(d), V.T.C.A., Penal Code. The offense was committed on February 19, 1974 and the trial commenced on October 15, 1974.

The evidence showed that undercover narcotics agent Gerald Howard, a veteran of ten years’ law enforcement experience, and Elmer Don Culp, a confidential informant, went to appellant’s house on North Baird Street in Midland on the date of the offense. The appellant came out to the car, answered a request from the informant by offering to sell the pair some heroin, and did exchange four shot papers of heroin for two ten dollar bills with the agent. Pat Donley, a chemist for the Texas Department of Public Safety, testified that he ran a series of seven tests on the substance sold to Howard and concluded that it was heroin.

In his first ground of error, appellant complains of a comment made by the trial judge at approximately 4:45 p. m., immediately following the verdict of guilty and just prior to commencement of the punishment phase of the trial. After assuring the jury that the punishment stage would be much shorter than the guilt-innocence stage, the judge said, “And, probably, you will be home for six o’clock dinner.” Appellant’s objection was sustained and the jury instructed to disregard the judge’s remark. Thus error, if any, was cured. Lee v. State, 454 S.W.2d 207 (Tex.Cr.App.1970); Lewis v. State, 503 S.W.2d 806 (Tex.Cr.App.1974). Moreover, in order to constitute reversible error, a comment by the trial judge must be reasonably calculated to benefit the State or injure the defendant. Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975). The comment of the trial judge in this case was apparently inadvertent; it was not a product of a dispute with counsel or otherwise designed to prejudice the appellant. Compare Hernandez v. State, 507 S.W.2d 209 (Tex.Cr.App.1974) in which the judge’s heated remark, “You can try that on appeal,” was held to have been cured by the court’s instruction. Appellant’s first ground of error is overruled.

In his second ground of error, appellant complains of the alleged admission of an extraneous offense. On cross-examination of the State’s main witness, Howard, during the guilt-innocence stage of the trial, the witness was asked, “. . . when was this arrest made?” Howard replied that appellant “was already in the County Jail when we did arrest the defendant.” Appellant’s objection was sustained and the jury instructed to disregard the witness’s answer. Though not as obviously prejudicial, Howard’s answer to the question was similar to the testimony characterized as unresponsive in Allen v. State, 513 S.W.2d 556 (Tex.Cr.App.1974), where an eleven year police veteran testified on cross-examination as follows:

“Q [Appellant’s Counsel] With whom have you discussed his reputation?
“A With victims of robberies, with people who have bought narcotics.”

But, in Nunley v. State, 467 S.W.2d 452 (Tex.Cr.App.1971), a similar answer from a veteran of four years’ law enforcement experience was held not to have been unresponsive. The officer was asked on cross-examination during the guilt-innocence state:

“Q Did you later that night apprehend this man?
“A No, sir.
“Q Do you know when he was apprehended?
“A Yes, sir. He was apprehended committing a burglary out on Scott Street.”

As in the instant case, the question in Nun-ley asked for the time of defendant’s arrest, but the answer given there was much more damaging than the statement that appellant was in jail at the time of his arrest. Nevertheless, this Court held that the answer in Nunley was probably responsive. In both Allen, supra, and Nunley, supra, as well as in Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974) and Boykin v. State, 504 S.W.2d 855 (Tex.Cr.App.1974), the effects of arguably unresponsive answers were held to have been cured by the trial court’s prompt instructions to disregard the remarks. So in the ease at bar, the instruction to disregard was sufficient under the holdings of this Court to cure any error.

Appellant next attacks the sufficiency of the evidence that the substance sold was heroin, contending that the testimony of the chemist Donley should have been stricken, since it was based on readings from instruments whose accuracy was not satisfactorily established. Specifically, appellant complains that the machines were calibrated against the “spectra available in the literature” and against samples of supposedly pure chemicals sent from Austin, and that this does not constitute a sufficient showing of accuracy. A similar contention was rejected by this Court in Bridges v. State, 471 S.W.2d 827 (Tex.Cr.App.1971) in which the chemist compared the spectra from the substance sold by the defendant to spectra from a reference sample of L.S.D. and to the spectra given by different sources in the literature. We perceive no difference between comparisons among the spectra from the suspect drug, reference samples and “the literature,” and analysis of the suspect drug on instruments calibrated from the spectra obtained from reference samples and the literature. We therefore hold that ultra-violet and infrared spectrographic analysis of suspected contraband can be done on the basis of comparisons with spectrographic data available in the appropriate literature and the spectra obtained from known reference samples of the drug.

As in Bridges, supra, there was no question in this case about the witness’s qualifications as an expert. His conclusion that the substance was heroin therefore had probative value and was sufficient to support appellant’s conviction. See also Valdez v. State, 135 Tex.Cr.R. 201, 117 S.W.2d 459 (1938). The cases of Hill v. State, 158 Tex. Cr.R. 313, 256 S.W.2d 93 (1953); Palafox v. State, 509 S.W.2d 846 (Tex.Cr.App.1974); Reyna v. State, 508 S.W.2d 632 (Tex.Cr.App.1974), and French v. State, 484 S.W.2d 716 (Tex.Cr.App.1972), cited by appellant, all involved peculiarities in the administration of breathalyzer tests and are distinguishable on that ground.

Appellant also complains that the delay between the commission of the alleged offense on February 19, 1974 and appellant’s arrest on the charge May 3,1974 deprived him of his Sixth Amendment right to a speedy trial. The Sixth Amendment right to a speedy trial does not attach until the putative defendant becomes the accused. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455 (1971); Luna v. State, 493 S.W.2d 854 (Tex.Cr.App.1973). While a lengthy pre-arrest delay could amount to a denial of due process in some circumstances, it does not outweigh the need to protect the anonymity of the undercover agent in this case. Luna v. State, supra; Baldwin v. State, 490 S.W.2d 583 (Tex.Cr.App.1973).

Appellant makes the claim that the trial court should have appointed counsel to investigate the alleged denial of his right to appeal in one of the prior convictions used to enhance appellant’s present sentence. The State replies that appellant’s eourt-ap-pointed trial attorney had this obligation, and, alternatively, that the validity of one of appellant’s prior convictions is a proper subject for post-conviction collateral attack. We overrule appellant’s specific contention herein because there is no federal statutory or constitutional right to appointment of counsel for the prosecution of habeas corpus attacks, Juelich v. United States, 342 F.2d 29 (5th Cir. 1965); United States ex rel. Coleman v. Denno, 313 F.2d 457 (2nd Cir. 1963), cert. den., 373 U.S. 919, 83 S.Ct. 1310, 10 L.Ed.2d 418 (1963), unless it is required by due process. Dillon v. United States, 307 F.2d 445 (9th Cir. 1962). While due process may require appointment of counsel for state hearings under Art. 11.07, V.A.C. C.P., certainly no such right attaches for the investigation of possible habeas corpus attacks. See, generally, Einsohn, Ira D., Judicial Efficiency and Post Conviction Relief: A Proposal for Texas, 24 S.W.L.J. 661, 662-668 (1970).

Investigation of the validity of one of appellant’s prior convictions used for enhancement was a defensive matter and therefore properly the concern of court-appointed trial counsel. It is also properly the subject of post-conviction attack. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). No error is shown.

In his sixth ground of error, appellant combines several attacks against the enhancement aspects of both the indictment and the court’s charge. Essentially, he complains that the indictment failed to allege the dates of commission of the prior offenses; the dates the convictions became final; the fact that the second prior offense was committed after the first prior offense had become final; and corresponding deficiencies in the charge.

The convictions used for enhancement were described in the indictment in the following language:

“. . . and said conviction was a final conviction and was a conviction for an offense committed by him, the said defendant, prior to the commission of the offense hereinbefore charged against him, as set forth in the [preceding] paragraph hereof. . .

It is not necessary to allege the dates of commission of the prior offenses used for enhancement. Loud v. State, 499 S.W.2d 295 (Tex.Cr.App.1973). Nor is it necessary to allege the dates on which the convictions therefor become final, as long as the allegations are specific enough to apprise the defendant of the conviction being used against him and as long as the proof at the trial shows the necessary succession of offenses and final convictions. Burton v. State, 493 S.W.2d 837 (Tex.Cr.App.1973); Kessler v. State, 514 S.W.2d 260 (Tex.Cr.App.1974). And the allegations that each offense was committed after a final conviction in the preceding case is sufficient for an enhancement indictment. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781 (1956); Branch’s Ann.P.C., 3rd Ed., Sec. 12.-42, p. 598 (1974). The court’s charge, based as it was on the indictment, was likewise sufficient. No error is shown.

Appellant lastly complains of a variance between the allegations of a sale of two (2) dosage units of heroin by appellant to Howard contained in the complaint sworn out to obtain an arrest warrant for appellant and the proof at trial of the sale of four (4) dosage units by appellant to Howard. Appellant has no authority for the proposition that this variance is fatal, but it is presented in light of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Apparently, appellant sold heroin to Howard on two occasions on February 19, 1974. He was arrested on the basis of one such sale, but the State elected to prosecute for the other. Appellant had ample warning of which sale he would be required to defend against and no reason is known why the State could not choose to prosecute on only one of the alleged sales. There is no fatal variance.

The judgment is affirmed.

      . We must take issue with the State’s assertions that no collateral attack is permitted after a defendant’s release from custody, see Sibron v. New York, 392 U.S. 40, 83 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and its assertion that release from illegal restraint is the only remedy obtainable in a habeas corpus attack. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

      . The authorities relevant to this ground of error are all cases under Art. 63 of our old Penal Code. No reason is perceived, however, why they should not apply to sec. 12.42(d) of the new Penal Code. Cf. Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App., delivered November 12, 1975).

      . In fact, Burton contained a statement that the date of sentence was the proper date to allege, and a recommendation that the date of conviction also be alleged. Capuchino v. State, 389 S.W.2d 296 (Tex.Cr.App.1965). The indictment in the instant case alleged the dates of the sentences in the prior convictions.


text:
    Billy Doyne ACTON, Appellant, v. The STATE of Texas, Appellee.
    No. 51081.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.
    Rehearing Denied Jan. 9, 1976.

      V. G. Kolius, Amarillo, for appellant.
    Randall Sherrod, Dist. Atty., Wesley G. Clayton, Asst. Dist. Atty., Canyon, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. On February 8, 1973, the appellant entered a plea of guilty to the felony offense of driving while intoxicated, and the court assessed punishment at imprisonment for 3 years. The imposition of sentence was suspended and the appellant was placed on probation subject to certain conditions of probation, among which were:

“(1) Commit no offense against the laws of this or any other state or of the United States;
“(10) Abstain from drinking intoxicating beverages.”

On March 25, 1975, the State filed a motion to revoke probation alleging that the appellant had violated the aforesaid conditions (1) and (10) as follows:

“(1) On or about the 20th day of March, 1975, in Randall County, Texas, the said BILLY DOYNE ACTON did then and there unlawfully drive and operate a motor vehicle, to-wit: an automobile, upon a public road and highway, situated within said County and State, while the said BILLY DOYNE ACTON was then and there intoxicated and under the influence of intoxicating liquor.
“(10) On or about the 20th day of March, 1975, in Randall County, Texas, the said BILLY DOYNE ACTON did then and there drink intoxicating beverages.”

The court found that the appellant had violated condition (10) in that he had consumed intoxicating beverages. Appellant contends that the trial court abused its discretion in revoking his probation for the reason that “the evidence is insufficient as a matter of law to show that [he] consumed any alcoholic beverage in Randall County. The thrust of this argument is that since the motion to revoke probation alleged that the appellant consumed intoxicating beverages in Randall County, the State was required to prove that appellant consumed intoxicating beverages in Randall County. The State did not prove that the appellant drank the alcoholic beverages in Randall County.

It has been repeatedly held that where revocation is based upon a violation of the probationary condition not to violate the law the allegations of the motion to revoke probation need not be as precise as those of an indictment, but should give fair notice and allege a violation of the law. Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970); Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App.1971); Gamble v. State, 484 S.W.2d 713 (Tex.Cr.App.1972); Vance v. State, 485 S.W.2d 580 (Tex.Cr.App.1972); Kuenstler v. State, 486 S.W.2d 367 (Tex.Cr.App.1972).

The condition before us required appellant to abstain from the consumption of alcoholic beverages; the condition was unlimited as to location. The allegation that the violation occurred in Randall County was not necessarily descriptive of the condition violated; the allegation was not necessary to show a violation of the condition; it was mere surplusage and the State was required to prove only that the appellant had consumed alcoholic beverages on the date alleged. The evidence shows a violation of a probationary condition sufficient to support the revocation order. The court did not abuse its discretion.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Henry GONZALES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51166 and 51167.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.
    Peter Torres, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty. and Michael Schill, Donald A. Clowe and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury under two indictments charging him with delivery of marihuana. The court assessed punishment at three (3) years in each ease; however, imposition of sentence was suspended and appellant was placed on probation.

Appellant’s sole contention is that the indictments are fundamentally defective for failure to allege the amount of marihuana delivered. He relies on Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975), and Tribble v. State, 525 S.W.2d 29 (Tex.Cr.App.1975). See also Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975); Wirges v. State, 521 S.W.2d 251 (Tex.Cr.App.1975); Medrano v. State, 524 S.W.2d 719 (Tex.Cr.App.1975); Saunders v. State, 528 S.W.2d 843 (Tex.Cr.App. delivered October 22, 1975).

The indictment in cause No. 51,166, omitting the formal parts, alleged that on May 31, 1974, appellant “did then and there unlawfully, knowingly and intentionally deliver marihuana to John Hester, for remuneration; . . .’’In cause No. 51,167, the indictment, omitting the formal parts, alleged that on June 19, 1974, appellant “did then and there unlawfully, knowingly and intentionally deliver marihuana to John Hester, for remuneration; . . .”

Sec. 4.05 of the Texas Controlled Substances Act provides for offenses involving both the possession and delivery of marihuana.

That part of Sec. 4.05 pertaining to the offenses relating to the delivery of marihuana are subsections (d), (e) and (f). They read as follows:

“(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
“(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
“(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

In Wilson v. State, supra, we considered that part of Sec. 4.05 (Art. 4476-15, Vernon’s Ann.Civ.Stat.) which prohibits the delivery of marihuana. There, we stated:

“Construing these subsections, we conclude that they provide for a third degree felony offense for the delivery of any amount of marihuana above the amount of one-fourth ounce, regardless of whether the actor receives remuneration or not. If the amount delivered is one-fourth ounce or less and the actor does not receive remuneration, the offense is a Class B misdemeanor. This, then, leaves the question of whether the delivery of one-fourth ounce or less with remuneration is a felony or misdemeanor. Construing the foregoing subsections together, we conclude that such offense is a felony. (Emphasis in original.)
“Therefore, to allege a felony under these subsections, the indictment should allege that the defendant did knowingly or intentionally deliver marihuana of more than or in excess of one-fourth ounce or allege that the delivery was one-fourth ounce or less with remuneration. See and compare Mears and Willis v. State, 520 S.W.2d 380 (Tex.Cr.App.1975).” (Footnote omitted.)

In addition to the authorities cited above, in Finley v. State, 528 S.W.2d 854 (Tex.Cr.App. delivered 10/29/75), we held that an indictment for delivery of marihuana is fundamentally defective if it fails to allege the amount of marihuana delivered or that the marihuana was delivered with remuneration. The same language — the necessity of alleging in the indictment either the quantity of marihuana delivered or that the delivery was for remuneration— as also used in Mears v. State, supra; Tribble v. State, supra, and Medrano v. State, supra.

In Wirges v. State, supra, the concurring opinion pointed out that all deliveries of marihuana fall within the ambit of the Texas Controlled Substances Act, Sec. 4.05(d). “Usable quantity” is not a necessary allegation if the offense is delivery of marihuana, as it is if the offense is possession. What is necessary for any indictment, as this court discussed in Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), is the allegation of “every fact which may affect the degree or kind of punishment,” quoting from 30 Tex. Jur.2d, Indictment and Information, Sec. 38, p. 604. From the already quoted subsections of the Texas Controlled Substances Act, Sec. 4.05, it should be clear that all deliveries of marihuana are felonies of the third degree, as stated in Subsection (e), unless the delivery meets the requirements of Subsection (f). Subsection (f) refers to delivery of “one-fourth ounce or less without receiving remuneration.” Since the present indictment alleges a delivery of marihuana (a criminal offense under Sec. 4.05(d) regardless of what quantity is involved) with remuneration (which means Sec. 4.05(f) is inapplicable), the offense charged was a third degree felony. Sec. 4.05(d), (e), and (f) indicate that the State legislature considered all deliveries of marihuana to be punishable offenses, with all such deliveries to receive punishment as third degree felonies unless the quantity was so small and no remuneration was made as to make such punishment improper. The system established was this: all deliveries of more than one-quarter ounce are felonies of the third degree regardless whether there was remuneration or not; all deliveries of one-quarter ounce or less without remuneration are Class B misdemeanors; any delivery with remuneration, regardless of amount, is a third degree felony.

Since the indictment alleged all the facts “which may affect the degree or kind of punishment” and reflects on its face a felony offense, it is a valid indictment.

The judgment is affirmed.

ROBERTS, J., concurs in the result.


author: DOUGLAS, Judge.

text:
    Asa Lamar WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 50289.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Percy Foreman and Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Michael Kuhn and E. Stanley To-pek, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for sale of an obscene book. After a jury verdict of guilty, punishment was assessed by the judge at thirty days in jail and a $1,000.00 fine.

A police officer dressed in civilian clothes went to the Eros Book Store in Houston and bought a book titled “Cum Together” from appellant. The jury found it to be obscene.

Appellant contends that the court erred in excluding evidence that another jury in another case found an accused not guilty. By formal bill of exception, it is shown that the proffered evidence was that Rodney Carl Rollins was charged with the sale of an obscene book titled “Apartment Sinners” and that the jury found him not guilty.

Appellant contends that the not guilty verdict in the Rollins case was admissible on the issue of contemporary community standards. In Bacon v. State, 147 Tex.Cr.R. 605, 183 S.W.2d 177 (1944), this Court wrote:

“Upon the trial appellant sought to prove the fact of Chastain’s acquittal. It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted. Wharton’s Crim. Evidence, 11 Ed., Vol. 2, p. 1216, Sec. 724; 22 C.J.S., Criminal Law, § 784, p. 1334; Giles v. State, 109 Tex.Cr.R. 234, 4 S.W.2d 66; Bell v. State, 33 Tex.Cr.R. 163, 25 S.W. 769; Harper v. State, 11 Tex.App. 1; Walding v. State, 135 Tex.Cr.R. 430, 120 S.W.2d 1052. Cited in the notes under the sections in the text books will be found many cases from other jurisdictions supporting the principal announced in the Texas cases (supra).”

See also Tucker v. State, 461 S.W.2d 630 (Tex.Cr.App.1971).

There is no reason to change the rule for the purpose of obscenity prosecutions, especially where one has been charged with a separate crime. See also Article 527, Section 7, Y.A.P.C. (1925), in effect at the time of this trial.

It should be noted that there was no special verdict showing that the jury in the Rollins case found the book not to be obscene. The jury could have based its verdict on several grounds; for example, that Rollins did not sell the book. If proof of verdicts in other cases could be shown, then there would have to be proof of the reasons a jury reached their verdict. If proof of acquittals were allowed, then it follows that proof of convictions should be allowed.

We hold that proof of prior acquittals in obscenity cases is not admissible in subsequent cases on the issue of community standards.

No error is shown. The judgment is affirmed.


text:
    Willie Lee HUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 50718.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.

      Richard A. Anderson and Malcolm Dade, Court-appointed on appeal, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Hugh Lucas, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of robbery by firearms; the appellant elected to be punished under the provisions of the new Penal Code and the jury assessed his punishment at imprisonment for 50 years.

The appellant does not challenge the sufficiency of the evidence, but he contends that the trial court erred in admitting: (1) evidence of the details of his arrest which showed the commission of extraneous offenses; (2) evidence of the subsequent death of one of the victims of the robbery; and (3) at the punishment stage, evidence of the appellant’s reputation.

On August 10, 1973, appellant and two others entered a Warehouse Liquor Store and robbed Jerry Rogers, the complaining witness. The appellant did not testify and he offered no evidence.

The first contention is that the trial court erred in admitting the testimony of Dallas police officer C. L. Daniel concerning the circumstances of the appellant’s arrest; he asserts that this testimony showed numerous inadmissible extraneous offenses. Officer Daniel testified that at about 8:30 p. m. on November 20, 1973, he and another officer had under surveillance a Buick automobile parked in front of the Seashore Restaurant in Dallas; the officers were in uniform in a marked patrol car. The appellant, accompanied by a female and another male, left the restaurant, got into the Buick and drove away; the appellant was driving; the female sat in the right front seat, and the other male sat in the back seat. As the Buick drove away, the officers turned on their red lights and siren and drove in behind the Buick. The Buick accelerated and a shot was fired from inside the car through the rear window. As the two cars passed through an intersection, the female passenger leaped from the car while it was traveling approximately sixty miles per hour. The chase continued for six or seven more blocks; more shots were fired at the pursuing police car from inside the fleeing Buick. The appellant was unable to negotiate a turn at a dead end street; the Buick jumped a curb and flipped against a post. The appellant leaped from the car, fired a shot at the officers, and ran up an embankment leading to the expressway. The appellant turned and fired one more time; Officer Daniel then shot the appellant with a shotgun and placed him under arrest.

Evidence of escape from custody or flight to avoid arrest is generally held to be admissible on the issue of guilt. Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974); Johnson v. State, 156 Tex.Cr.R. 534, 244 S.W.2d 235 (1951); Gonzales v. State, 492 S.W.2d 263 (Tex.Cr.App.1973); Jackson v. State, 454 S.W.2d 733 (Tex.Cr.App.1970); Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340 (Tex.Cr.App.1957), cert. denied, 361 U.S. 920, 80 S.Ct. 266, 4 L.Ed.2d 188 (1959). It is also relevant to show the efforts made to locate or apprehend the accused, his pursuit and capture, including his resistance to arrest when overtaken even though this may also prove the commission of anothercrime. Martinez v. State, 140 Tex.Cr.R. 159, 140 S.W.2d 187 (1940). It has been said that the fact that circumstances of flight incidentally show the commission of another crime does not render the evidence inadmissible. Cox v. State, 170 Tex.Cr.R. 128, 338 S.W.2d 711 (I960); Thames v. State, 453 S.W.2d 495 (Tex.Cr.App.1970); Spears v. State, 91 Tex.Cr.R. 51, 237 S.W. 270 (1922). This position was modified and clarified when it was pointed out in Jones v. State, 481 S.W.2d 900 (Tex.Cr.App.1972), that reliance on Cox v. State, supra, was often misplaced. In Jones v. State, supra, it was said:

“. . . flight is a circumstance from which an inference of guilt may be drawn, e. g. Ysa s aga [Ysasaga v. State], 444 S.W.2d 305; Crenshaw v. State, Tex.Cr.App., 389 S.W.2d 676. Still, flight should show some act or instance of running away. The fact that appellant was in Houston within a seven day period of time does not indicate flight. There must be some circumstance to show that the accused is moving out or running, e. g. Woods v. State [Tex.Cr.App.], 480 S.W.2d 664; Israel v. State, 158 Tex.Cr.R. 574, 258 S.W.2d 82.”

Jones v. State, supra, overruled Cox v. State, supra, to the extent it was inconsistent therewith. And see Rogers v. State, 484 S.W.2d 708 (Tex.Cr.App.1972). The holding in Jones v. State, supra, is consistent with our holding here. We hold here that when the circumstances of flight from arrest also show the commission of crimes other than the one charged, the circumstances incidental to the flight are admissible in evidence even though they may also show extraneous offenses.

The record before us shows that the appellant was a fugitive and that when the officers attempted to arrest him, he fled. Each of the extraneous offenses shown was part of and incidental to the appellant’s attempted flight to avoid arrest. Evidence of the circumstances surrounding appellant’s arrest was properly admitted. This ground of error is overruled.

Appellant next asserts that the trial court erred in admitting evidence of the subsequent death of one of the victims of the robbery because this was hearsay evidence and the witness was not qualified to testify to such facts. The complaining witness, Rogers, testified that shortly after the robbery Jay Brown, the manager of the liquor store, and one of the victims of the robbery, seemed quite shaken and kept holding his chest. Rogers said that he told Brown to go home and take it easy. At this point in the testimony appellant’s counsel objected as follows:

“Your Honor, we would object to the whole matter of testimony as to what the other gentleman looked like and what he was, because this was after the alleged offense and we feel like it is not pertinent here and we feel it is only done for one purpose, and that is to make it look worse than it really is.
“THE COURT: Overruled.”
The record then reflects the following: “Q. [ASSISTANT DISTRICT ATTORNEY]: Where is Mr. Brown today, sir?
“A. Mr. Brown is deceased.
“Q. When did he die, sir?
“A. He died about an hour and fifteen minutes after the robbery.
“Q. And what of, if you know?
“A. A heart attack.”

Appellant offered no further objections.

Appellant’s vague, general objection was insufficient to preserve error. Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974); Franklin v. State, 494 S.W.2d 825 (Tex.Cr.App.1973); Holmes v. State, 493 S.W.2d 795 (Tex.Cr.App.1973). Further, appellant did not object to the testimony of Brown’s death. Failure to object presents nothing for review. Bell v. State, 501 S.W.2d 137 (Tex.Cr.App.1973); Navajar v. State, 496 S.W.2d 61 (Tex.Cr.App.1973). On the following day at the end of the guilt or innocence stage of the trial appellant objected to the evidence of Brown’s death. That objection was untimely and presents nothing for review. Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975); Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974). The trial judge did, however, after observing that the objection was untimely, instruct the jury to disregard the evidence admitted about which complaint is now made. This ground of error is overruled.

The appellant’s remaining ground of error is that “the trial court erred in allowing before the jury the testimony of John W. Palich with regard to the reputation and general character of the appellant, when such reputation was not put in question, and the form of the inquiry was not proper.”

At the punishment phase of the trial, the reputation of the appellant is an issue under the provisions of Art. 37.07, Sec. 3(a), V.A.C.C.P. Smith v. State, 414 S.W.2d 659 (Tex.Cr.App.1967); Nelson v. State, 505 S.W.2d 271 (Tex.Cr.App.1974); Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974); Broadway v. State, 418 S.W.2d 679 (Tex.Cr.App.1967). Officer Palich of the Mesquite Police Department testified that the appellant’s reputation as a peaceful law-abiding citizen was bad. During the officer’s direct examination defense counsel was permitted a voir dire examination of the officer to determine whether he was qualified to testify concerning the appellant’s reputation. Under questioning by defense counsel the witness gave the names of three citizens of Mesquite, two law enforcement officers and one Elgin Cortez Spears as persons with whom he had discussed appellant’s reputation.

Defense counsel’s questions revealed that Spears was a black male citizen who had lived in the area where the appellant resided. Defense counsel then asked the witness when the last time was that he had spoken with Spears and if he had asked Spears, “What do you think about Willie Lee Hunter’s reputation for truth and veracity in the community? Is that what you said?” The officer replied that that was not specifically what he had asked Spears when they had last conversed in the early part of 1974. The prosecutor interrogated the witness after defense counsel’s voir dire and elicited a response that Spears was now in prison. The prosecutor then asked the witness to relate the substance of the conversation he had had with Spears. Without objection, the witness answered, “Elgin Spears told me that he, Willie Hunter and Andrew Doyle Hogg robbed the Steak Palace Club in Mesquite on November 11, 1973.” Defense counsel’s objection, which was made after the question was answered, was sustained and the court instructed the jury to disregard both the question and answer.

No further relief was requested; absent a motion for mistrial, reversible error is not presented. Burks v. State, 432 S.W.2d 925 (Tex.Cr.App.1968); Mendoza v. State, 492 S.W.2d 489 (Tex.Cr.App.1973). If the trial court had granted a mistrial sua sponte, a serious question of former jeopardy might be raised in a subsequent trial. Taylor v. State, 474 S.W.2d 207 (Tex.Cr.App.1971), and see United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . In Cox v. State, supra, the-accused committed one robbery, and then was captured as he left the scene of another robbery, one week later. The fact that the accused participated in the second robbery had no bearing on his flight to avoid arrest in connection with the first robbery.

      . In Rogers v. State, supra, the defendant committed the offense of robbery by assault. The State introduced testimony that the defendant committed another robbery by assault a few hours after the first offense. Clearly, the commission of the second offense has little or nothing to do with flight to avoid arrest in connection with the first offense.


author: BROWN, Commissioner.

text:
    Alvin ZIDELL, Appellant, v. The STATE of Texas, Appellee.
    No. 50940.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Allen Weed, Dallas, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a final judgment upon forfeiture of a bail bond. Judgment was taken against appellant as surety and Sylvester Davis, Jr., as principal.

At the request of appellant, the trial court filed findings of fact and conclusions of law. The court found from the evidence that a surety bond in the principal amount of $1,500.00 was filed in the cause on April 26, 1972, bearing the signature of the defendant-principal, and the apparent signature of appellant, Alvin Zidell, written in ink as the surety. That in 1971 appellant entered into an agreement with one P. F. (Pinkey) Brownlee by which appellant would put up certain properties and monies and file an affidavit of net worth with the Sheriff of Dallas County for the purpose of inducing said Sheriff to approve and accept bail bonds with appellant as surety. That thereafter, with appellant’s knowledge, Brownlee signed appellant’s name to bonds. That appellant shared in the proceeds derived from such bonds and never instructed Brownlee to stop signing appellant’s name to such bonds. That appellant did not deny th.' authenticity of such bonds that had been previously forfeited by the trial court until shortly before the instant case. The court concluded that under these circumstances appellant had adopted his signature as signed by Brownlee as valid and authentic.

Appellant in challenging the above conclusion relies upon Walker, et al. v. State, 109 Tex.Cr.R. 618, 6 S.W.2d 356; Ex parte Meadows, 129 Tex.Cr.R. 297, 87 S.W.2d 254 and Wilkins v. State, 130 Tex.Cr.R. 36, 91 S.W.2d 354. Each of these cases is distinguishable from the instant case. In Walker, supra, the principal’s attorney signed the principal’s name by the attorney as agent. Clearly the bond did not purport to be signed by the principal. In Ex parte Meadows, supra, the bond clearly showed that it was not signed by the surety but by his attorney in fact. The same was true in Wilkins, supra.

In the instant case, however, the bond purported to be signed by appellant as surety. We hold that Greer v. State, 382 S.W.2d 481, is controlling in the instant case. In Greer this Court held the surety to be liable where he had adopted the signature purporting to be his own even though he had not personally signed the bond.

The judgment is affirmed.

Opinion approved by the Court.


author: KEITH, Commissioner.

text:
    Ex parte Antonio MARTINEZ.
    No. 51018.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.

      Tom Mills, Jr., Dallas, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

This is an appeal from an order entered in the Criminal District Court of Dallas County remanding appellant for extradition to the State of Illinois to answer a charge of murder.

The Governor’s warrant and duly authenticated supporting documents authorized the extradition of “Antonio Martinez aka Robert Gomez” and the State rested after offering such instruments in evidence. Thus the State made out a prima facie case for extradition. Ex parte Burns, 507 S.W.2d 777, 778 (Tex.Cr.App., 1974); Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App., 1975).

Thereupon, appellant took the stand in his own behalf and introduced what he swore to be his Mexican birth certificate showing his name to be Martinez Filiberto. He also testified that he was not in the State of Illinois on the date of the alleged offense (June 19, 1970) and had not been in that state since the year 1969. Appellant denied ever having been known as Antonio Martinez or Robert Gomez or having ever used either of such names. He likewise denied having known the deceased.

When identity is placed in issue, as it was in this case, the burden is upon the demanding state to show that the person taken into custody and held for extradition is the identical person named in the warrant. Ex parte Ryan, 168 Tex.Cr.R. 351, 327 S.W.2d 596, 597 (1959).

When the hearing resumed, after a recess of several days, the state offered Chicago police officer Foster as a witness. Foster, having examined a photograph contained in the extradition file, identified petitioner as the same person shown therein to be Antonio Martinez. See and compare Ex parte Smith, 515 S.W.2d 925, 926 (Tex.Cr.App., 1974).

Upon cross-examination, however, it was shown that Foster had procured the photograph from “the woman which that man was living here (sic) as his common law [wife] in the City of Chicago,” and “there were three other witnesses in the City of Chicago who identified the photo of Mr. Martinez as being the shooter on that day.” Further, Foster testified that the common law wife “said this person is named Antonio Martinez.”

It is readily apparent that Foster’s testimony constituted hearsay evidence under Dean McCormick’s definition:

“The [hearsay] rule in truth is this: evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous statement, is inadmissible as hearsay.” 1 McCormick & Ray, Texas Law of Evidence (2d ed. 1956) § 781, p. 558.

This testimony also fits the illustration found in McCormick & Ray, supra, § 793, p. 578: “If the witness states that of his own knowledge he hears X make a certain assertion and this is offered to prove the truth of the assertion, the testimony is hearsay.”

In Salas v. State, 403 S.W.2d 440, 441 (Tex.Cr.App., 1966), the Court quoted extensively from 1 Wharton’s Criminal Evidence (12th ed.) Sec. 249, p. 571:

“ ‘Hearsay evidence has been defined as evidence which does not derive its value solely from the credit to be given to the witness himself, but rests in part on the veracity and competency of some other person. In terms of the actual conduct of a trial, hearsay evidence is that which a given witness offers in court (a) which is not based on his own knowledge, but is merely a repetition of what he has been told or the offering by him of a writing prepared by another, and (b) which is offered as proof of the truth of the matter contained or stated therein.’ ”

Appellant contends that he discharged his burden of showing that he was not the person named in the warrant, since the only rebuttal testimony offered by the State was hearsay and constituted no evidence.

We recognize the rule that hearsay evidence has no probative value; or, as stated in Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357, 359 (1959): “Mere hearsay is not only not the best, it is not even secondary, evidence; it is no evidence. It is not admissible although no better evidence is to be obtained.” See also, Salas v. State, supra (403 S.W.2d at 441); Urban v. State, 387 S.W.2d 396, 398 (Tex.Cr.App., 1965).

Affidavits are likewise hearsay evidence when used to prove the truth of the assertions therein made, not for the want of an oath but because of the lack of opportunity for cross-examination of the declarant. 1 McCormick & Ray, supra, § 787 at p. 570.

This brings us to the point where we must face the apparently conflicting holdings of this Court with reference to identification of the accused in extradition proceedings.

In one case, In re O'Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152, 153 (1960), after the issue of identity had been raised, State’s counsel sent a picture of the accused to the demanding state. A detective in the demanding state made an affidavit that the photograph was that of the man named in the extradition warrant. This was held to be sufficient to authorize the trial judge’s rejection of testimony of the accused and his extradition was affirmed. One judge dissented. O’Connor has been followed in other cases, e. g., Ex parte Viduari, supra (525 S.W.2d at 164), and cases therein cited.

On the other hand, in Ex parte Williams, 169 Tex.Cr.R. 192, 333 S.W.2d 146, 148 (1960), relied upon by appellant herein, testimony similar to that given by Foster was held to be insufficient, the Court saying: “This testimony appears to be hearsay and without probative value.” See also, Letwick v. State, 145 Tex.Cr.R. 416, 168 S.W.2d 866, 868 (1943), where the agent of the demanding state sought to identify the appellant by photographs; but, since he was relying upon what the victim had told him, his testimony was held to be hearsay and to constitute no evidence as to identity.

Thus, under prevailing authority, if the identity is established by an ex parte affidavit of an officer of the demanding state, based upon hearsay evidence, the fugitive may be extradited. On the other hand, when the officer from the demanding state testifies in person at the hearing, and his testimony is based upon hearsay, the fugitive may not be extradited.

In order to eliminate the apparently conflicting rule relating to identity established by affidavit and identity established by testimony given in open court, as exemplified by the two lines of cases just discussed, we have reconsidered the subject. In so doing, we quote copiously from a decision by the Supreme Court of Indiana, Notter v. Beasley, 240 Ind. 631, 166 N.E.2d 643, 93 A.L. R.2d 905 (1960), wherein the modern authorities were collated. There, in declining to apply the strict common law rules of evidence to extradition, the Court held:

“The appellant in this case was entitled to and did raise the issue of identity. The question then arises: what is competent evidence on the part of the sheriff or other law enforcement officers holding the petitioner on the issue of identity with that of the fugitive from another state?
“Wigmore classifies extradition proceedings with that of other special or statutory proceedings of a summary nature which are not criminal in nature, in which the strict rules of evidence known to the common law are not applicable. He places within this category interlocutory, grand jury, disbarment, administrative and extradition proceedings, to mention but a few, and says:
“ ‘(6) Extradition. For the same reasons of principle, extradition proceedings are not governed in strictness by the jury trial rules of Evidence. Moreover here the additional reason obtains that the evidence is brought from outside the jurisdiction, and the procurement of evidence is too likely to be hampered by the lack of power or practicability, as well as by the possible differences of law in another system.’ 1 Wigmore on Evidence, 3rd Ed. § 4(6), p. 24.
“In 39 C.J.S. Habeas Corpus § 39a, p. 548, it is said:
“ ‘In construing the evidence in habeas corpus proceedings, the court is not to be governed by the technical rules as in the case of a trial for a crime, but is to regard it liberally in favor of the demanding state.’
“In line with such authority it was held in Letwick v. State, 1947, 211 Ark. 1, 198 S.W.2d 830, that it was proper in a habe-as corpus proceeding involving extradition to introduce in the evidence for the purpose of identification, photographs which the officer from the requesting State stated had been identified ‘as the photographs of the person accused in Colorado’ of the crime charged, although ‘he did not testify that he personally knew Levine (the petitioner).’ We concede this is hearsay testimony, as did the Supreme Court in the instant case, but the appellant is not on trial for the commission of the offense in this State. In fact, the issue of his guilt or innocence is not in question here and the constitutional provision that he is entitled to be confronted with the witnesses against him for cross-examination is not applicable. If and when appellant is tried for the crime charged in the State of Oklahoma, he will be entitled to be confronted by the witnesses there who seek to identify him. It is there that his identity must be proved beyond a reasonable doubt — not here. We are sustained in the position we take here by an almost unanimous weight of authority.
“The United States Supreme Court has said: ‘Strict common law evidence is not necessary’ in proceedings of the character here. Munsey v. Clough, 1905, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515, 517.
“In the Lindbergh kidnapping case, People ex rel. Hauptmann v. Hanley, 1934, 153 Misc. 61, 274 N.Y.S. 813, at page 822, it is said:
“ ‘We are not to be governed by technical rules as in the ease of a trial for a crime.’
“See also: 25 Am.Jur., Habeas Corpus, § 72, p. 198.” (166 N.E.2d at 647, 93 A.L.R.2d at 910-911)

See also, Annotation, 93 A.L.R.2d 912, “Extradition — Accused—Identification ” (1964); United States ex rel. Vitiello v. Flood, 374 F.2d 554 (2 Cir., 1967); “Interstate Extradition to Answer Criminal Charges”, R. Moses and C. Dally, 9 South Texas L.J. 166 (1967).

We hold, in conformity with the authorities cited in Notter v. Beasley, supra, that appellant did not establish, either by admissions or conclusive evidence, that he was not the person named in the Governor’s warrant and did not, therefore, overcome the prima facie finding therein. The holdings of O’Connor and Viduari, both supra, are reaffirmed, and the ruling therein is extended to the in-court testimony of an officer from the demanding state on the question of identification. To the extent the holdings in Ex parte Williams, 169 Tex.Cr.R. 192, 333 S.W.2d 146, 148 (1960), and Letwick v. State, 145 Tex.Cr.R. 416, 168 S.W.2d 866, 868 (1943), are in conflict with the holding herein, each is overruled.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

      . This testimony of appellant, standing alone, is insufficient to require a finding that he was not in the demanding state at the time the offense was alleged to have been committed. Ex parte Harvey, 459 S.W.2d 853, 855 (Tex.Cr.App., 1970).

      . This language is a paraphrase of words found in Belverman v. State, 16 Tex. 130, 132 (1856): “But mere hearsay is not only not the best, nor even secondary evidence; it is no evidence.”

      . A careful study of the Williams Case discloses that the reversal was based upon the fact that the State had not overcome the proof from Williams that he could not, in fact, have been in Ohio when the crime was committed. Cf. Ex parte Martin, 374 S.W.2d 436, 438 (Tex.Cr.App., 1963).


text:
    Guy WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 51475.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.

      None for appellant.
    Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant was convicted by a jury of driving while intoxicated, subsequent offense, and it assessed his punishment at four (4) years.

We have concluded that the appeal must be abated.

The record reflects that, prior to trial, appellant filed an affidavit of indigency. He was represented by counsel at trial, but whether such counsel was court-appointed is not shown by the record. After trial, but prior to sentencing, appellant filed another affidavit of indigency, requesting a free record on appeal and the appointment of counsel to represent him on appeal. Appellant’s trial counsel was appointed to represent him on appeal, sentence was pronounced, and notice of appeal given. Thereafter, appellant obtained his release from custody upon making a $3,500 appeal bond. After appellant’s release from custody, his court-appointed counsel filed a motion to withdraw stating that, because appellant had made the appeal bond, he would no longer qualify as an indigent. The motion to withdraw was granted by the trial court on July 28, 1975.

On October 15, 1975, the trial court entered an order in which he concluded that the appellant was not indigent. This conclusion was based on the fact that appellant had made the aforesaid appeal bond and that “at various points in the testimony upon the trial of this cause the defendant testified that he was receiving compensation from the United States Government which was adequate to maintain him . ” On the same day notice of completion of the record was mailed to appellant. Apparently, there were no objections thereto and the court approved the record on October 31, 1975.

We have held that the fact that an appellant made an appeal bond is not determinative of his status as a non-indigent, Simmons v. State, 511 S.W.2d 308 (Tex.Cr.App.1974), but is only a factor to be considered. Foley v. State, 514 S.W.2d 449 (Tex.Cr.App.1974). Here, the fact that appellant made an appeal bond would have given the trial judge ample justification for inquiry into his status as an indigent.

From the trial court’s order, it is apparent that the trial court gave great weight to testimony at the trial concerning appellant’s financial condition in determining that appellant was not indigent. However, the court had previously heard the same testimony prior to the time he found appellant indigent and appointed counsel to represent him on appeal. Thus, it would appear that the factor that tipped the scales in favor of the trial court’s determination that appellant was not indigent was the fact that appellant made the aforementioned appeal bond. We find nothing in the record to indicate that appellant was given notice that court-appointed counsel was being allowed to withdraw or that appellant was given notice of the trial court’s reconsideration of his economic status. See Per-ryman v. State, 519 S.W.2d 438 (Tex.Cr. App.1975).

Consequently, we abate the appeal in order that the trial court might hold a hearing to determine such question. If the trial court finds that appellant is indigent, the court should take the proper steps to provide appellant with a free transcription of the court reporter’s notes, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Ex parte Mays, 510 S.W.2d 606 (Tex.Cr.App.1974); and effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Lopez v. State, 486 S.W.2d 559 (Tex.Cr.App.1972). Proceedings may then be had in the trial court in accordance with Art. 40.09, Vernon’s Ann.C.C.P.

If the trial court finds that appellant is not indigent, then the appeal should be returned to this Court, together with the trial court’s findings and the transcription of the court reporter’s notes at said hearing of indigency, in order that this Court might properly review the same. See Stephens v. State, 509 S.W.2d 363 (Tex.Cr.App.1974).

For the reasons stated, the appeal is abated.


author: ODOM, Judge.

text:
    Truman Dean HENSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50702.
    Court of Criminal Appeals of Texas.
    Dec. 19, 1975.

      Dade & Young by John E. Rapier, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The offense was burglary; the punishment, enhanced under Art. 63, V.A.P.C., confinement for life.

The sole ground of error raised by appellant’s appointed attorney is without merit. Our reading of the record, however, reveals a violation of the mandatory provisions of Art. 26.04, V.A.C.C.P. In the interest of justice, we will consider such violation as unassigned error, Art. 40.09(13), V.A.C.C.P., as we did in Crothers v. State, 480 S.W.2d 642.

The record reflects that appellant was initially indicted for burglary. Trial counsel was appointed on May 10, 1973. The State later re-indicted appellant upon the same offense as a habitual offender. Such indictment was filed July 16, 1973. Three days later, on July 19, 1973, the same attorney was reappointed to represent appellant on the charges contained in the new indictment. The trial commenced the same day.

Article 26.04, V.A.C.C.P., provides in pertinent part as follows:

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

It is the actual preparation time, not the time of formal appointment, that determines whether a defendant has been given the mandatory preparation time for trial provided by the statute. McBride v. State, 519 S.W.2d 433; Davis v. State, 513 S.W.2d 928; Moore v. State, 493 S.W.2d 844. In the instant case, appellant had ample time to prepare his defense to the burglary allegations. As stated in an entry on the docket sheet dated July 19, 1973, “This present cause is a reindictment of that [earlier burglary] case and charge, identical offense.”

He could not have had more than three days, however, to prepare for trial on the enhancement allegations of his second indictment. Such additional allegations were not minor alterations of the pleadings, but constituted new allegations, unrelated to the original offense, that might have substantively affected the accused’s preparation for trial and, of course, the range of punishment in the event he was convicted, as actually occurred. Cf. Guzman v. State, 521 S.W.2d 267; Hayles v. State, 507 S.W.2d 213.

In short, the record does not affirmatively show that appellant’s court-appointed attorney had ten days time to prepare for the new enhancement allegations, or that the second appointment was made only to allow payment for services. Prince v. State, 500 S.W.2d 533; Houston v. State, 490 S.W.2d 851; Crothers v. State, 480 S.W.2d 642; cf. Carter v. State, 480 S.W.2d 735; Lee v. State, 478 S.W.2d 469; Gray v. State, 475 S.W.2d 246; Meeks v. State, 456 S.W.2d 938.

The record reflects no properly executed waiver of the statutory ten day period with respect to the enhancement allegations of the indictment. Finally, in a direct appeal from conviction, it is wholly immaterial whether any complaint regarding sufficiency of preparation time was raised at trial. Cf. Sutton v. State, 519 S.W.2d 422; Clemons v. State, 501 S.W.2d 92; Hill v. State, 480 S.W.2d 200, cert. denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667 (1972); Meadows v. State, 418 S.W.2d 666.

We are next faced with the question of the appropriate relief to be granted. After a jury found appellant guilty of the offense of burglary, the punishment hearing, at appellant’s request, was before the court. The enhancement allegations for which appellant had insufficient time to prepare related only to such hearing. Because that hearing was before the court, there is no need for an entire new trial. Instead, the punishment should be set aside and the cause remanded for a new punishment hearing before the court. Elizalde v. State, 507 S.W.2d 749; Miller v. State, 472 S.W.2d 269; Brumfield v. State, 445 S.W.2d 732, 740 (on motion for rehearing); Wheat v. State, 442 S.W.2d 363.

The judgment of conviction is affirmed. The cause is remanded for hearing on punishment.


author: DAVIS, Commissioner.

text:
    Joe Lawrence DIAMOND, Appellant v. The STATE of Texas, Appellee.
    No. 51162.
    Court of Criminal Appeals of Texas.
    Dec. 19, 1975.
    Neal Wheeler, Dallas (Court-appointed), for appellant.
    Henry Wade, Dist. Atty., Gary Love, Jim Burnham, Robert Hinton, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appellant was convicted under an indictment charging him with theft of property of the value of $20.00 or more but less than $200.00 and further alleging two prior convictions of theft of property of the value of $50.00 or more. Trial was before a jury upon a plea of guilty and punishment was assessed at ten years.

In his sole contention appellant urges that V.T.C.A. Penal Code, Section 81.-03(d)(4)(C) is unconstitutional under the Fifth and Fourteenth Amendments of the Constitution of the United States and Art. 1, Sec. 9 of the Texas Constitution.

Section 31.03(d)(4)(C), supra, provides: “(d) An offense under this section [theft] is:
“(4) a felony of the third degree if:
“(C) the value of the property is less than $200 and the defendant has been previously convicted two or more times of any grade of theft.”

Appellant urges that Section 31.-03(d)(4)(C), supra, is violative of due process and in addition allows an accused to be placed in double jeopardy. Appellant argues that he is charged with a felony, not because he is guilty of the present offense, a Class A misdemeanor, but because he committed this offense along with past offenses. Appellant maintains that he is being tried for all three offenses.

The instant offense is similar to driving while intoxicated, second offense, as denounced by Art. 67017-2, V.A.C.S. and previously by Art. 802b, V.A.P.C. See also Art. 567b(4), V.A.P.C. Art. 802b, supra, has been held not to be an enhancement of punishment statute, but rather a statute which creates a new offense of the grade of felony. Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93; Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393; Clifton v. State, 156 Tex.Cr.R. 655, 246 S.W.2d 201. In Hill v. State, supra, it was held that where a misdemeanor conviction for driving while intoxicated was used a second time in alleging a felony offense under Art. 802b, supra, “that such subsequent re-use does not violate the constitutional prohibition against placing an accused twice in jeopardy.” In Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618, it was held that the repetition of offenses statute was not applicable to Art. 802b, supra, not because of any constitutional prohibition, but because' of the intent of the Legislature expressed in such statute.

The addition of the prior theft convictions in the instant case created a new offense of the grade of felony and vested the District Court with jurisdiction just as the allegation of the prior conviction for driving while intoxicated created a felony offense under 802b, V.A.P.C. Appellant urges that the creating of a new offense distinguishes this case from the many cases which have upheld the constitutionality of the enhancement statutes. We perceive no difference between the instant case and Hill v. State, supra, where the contention of double jeopardy was expressly rejected when conviction was had under Art. 802b, supra.

The enhancement statutes have withstood attacks that they were invalid under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. See Thrash v. State, 500 S.W.2d 834; Cherry v. State, 447 S.W.2d 154; Beasley v. State, 389 S.W.2d 299; Spencer v. State, 389 S.W.2d 304; 1 Branch’s Ann.P.C., 2 ed., Sec. 698; Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. While the statute under attack in the instant case has the effect of creating a new offense with a higher range of penalty, the challenge of deprivation of due process would appear to be bottomed upon the considerations urged in the enhancement of penalty statutes.

We reject appellant’s contentions that V.T.C.A. Penal Code, Sec. 31.03(d)(4)(C), is violative of due process and placed him in double jeopardy.

The judgment is affirmed.

Opinion approved by the Court.

      . See and compare V.T.C.A. Penal Code, Sec. 12.42(d).

      . V.T.C.A. Penal Code, Sec. 31.03(d)(3) provides that theft of property of the value of $20 or more but less than $200 is a Class A misdemeanor.

      .See cases collated under Arts. 62 and 63, V.A.P.C.


author: GREEN, Commissioner.

text:
    Richard Fulton BATISTE, Appellant, v. The STATE of Texas, Appellee.
    No. 51163.
    Court of Criminal Appeals of Texas.
    Dec. 19, 1975.
    Thomas M. Roberson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Tyler Moore, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This appeal is from an order revoking probation.

On August 6, 1973, appellant waived a jury, plead guilty, and was convicted of unlawful possession of heroin. Punishment was assessed at ten years, probated. Condition (a) of the probation order was that “(a) Commit no offense against the laws of this state or any other state or of the United States.”

On December 20, 1974, the State filed a Third Amended Motion to Revoke Probation, in which it alleged that appellant, on August 27, 1973, committed the offense of burglary of the house of Dan Singleton with the intent to commit theft. A hearing was conducted on said amended motion on January 13, 1975, at which the court, after hearing evidence, found that appellant had violated condition (a), supra, of this probation order, in that on August 27, 1973, he committed the offense of burglary as alleged in the State’s motion. The court reduced the punishment to eight years, revoked probation and sentenced appellant to a term of eight years.

The evidence supports the court’s finding that appellant committed the burglary as alleged in the State’s motion.

Appellant in his sole ground of error contends the court abused its discretion in revoking probation “in that there was no identification of the appellant as having been the same person who had received probation at an earlier date.”

The judgment of conviction and probation had been rendered against Richard Fulton Batiste in Cause No. 191,855 in the 183rd District Court of Harris County by the same judge who conducted the revocation proceedings in the same cause number and court. At the beginning of the hearing, the following occurred:

“THE COURT: Bring out Richard Batiste alias Richard Brown. Have the defendant stand, please. You are Richard Fulton Batiste?
“THE DEFENDANT: Yes, sir.
“THE COURT: Are you one and the same person who in this court on August the 6th, 1973, was found guilty of the offense of possession of heroin and accorded adult probation in this court for a period of 10 years?
“THE DEFENDANT: Yes, sir.
“THE COURT: You are one and the same person?
“THE DEFENDANT: Yes, sir.
“THE COURT: Mr. Roberson standing with you is your attorney representing you in this case?
“THE DEFENDANT: Yes, sir.
“THE COURT: Mr. Roberson, are you the defendant’s attorney?
“MR. ROBERSON: I am, Your Honor.”

Additionally, a thumb print placed on the original of the probation order by the probationer when the probation officer explained same to him, as was the custom in the 183rd District Court, was identified as the thumb print of appellant at the hearing.

The record reflects that the identity of appellant as being the probationer in this cause was fully proved. Hogan v. State, 529 S.W.2d 515 (1975); Barrow v. State, 505 S.W.2d 808.

Furthermore, appellant did not make his identity an issue in the trial court. This issue cannot be raised for the first time on appeal. Hogan v. State, supra; Barrow v. State, supra.

The trial court did not abuse his discretion in revoking appellant’s probation.

The judgment is affirmed.

Opinion approved by the Court.

      . See Art. 42.12, Sec. 8, V.A.C.C.P., as amended by Acts 1973, 63rd Leg., effective June 14, 1973, providing: “. . . If probation is revoked, the court may proceed to dispose of the case as if there had been no probation, or if it determines that the best interests of society and the probationer would be served by a shorter term of imprisonment, reduce the term of imprisonment originally assessed to any term of imprisonment not less than the minimum prescribed for the offense of which the probationer was convicted.”