author: COOPER, Justice.

text:
    Mary FARMER, Appellant, v. Thomas N. FARMER, Jr., Catherine Farmer, Mark Taylor Farmer and Karen Elizabeth Farmer, minors, b/n/f Charlotte Diane Farmer, Appellees.
    Supreme Court of Tennessee.
    Feb. 27, 1978.
    Harry Berke, Berke, Berke, & Berke, Chattanooga, for appellant.
    Richard Dietzen, Dietzen, Dietzen & Barker, Chattanooga, for appellees.
   OPINION

COOPER, Justice.

This is a workmen’s compensation case. The only issue on appeal is the proper allocation of death benefits among the widow of an employee and his children by a previous marriage.

Thomas N. Farmer, an employee of Rockwell International Corporation (Rockwell), was killed in the course of his employment. Rockwell brought this action, seeking to have the court approve and apportion the death benefits payable under the Workmen’s Compensation Law. At trial, the evidence showed that the deceased employee was survived by his widow, Mary Farmer, and by his four children by a previous marriage, who were in the custody of his former wife. Evidence was also introduced concerning the employee’s earnings and his support obligations under the divorce decree. The chancellor, after determining that the deceased employee’s dependents were entitled to the maximum death benefits of $85 per week as provided in T.C.A. § 50-1010, allocated ¾⅞ of those benefits to the children and ¾ to the widow. The widow has appealed, contending that she is entitled to a greater share, both under the statute and in equity.

The allocation and the amount of the death benefits payable to the dependents of a deceased employee are governed in part by T.C.A. § 50-1013, which provides in pertinent part as follows:

(a) • • •
(3) Wife, child, mother, father, grandmother, grandfather, sister, brother, mother-in-law, and father-in-law who were wholly supported by the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his actual dependents, and payment of compensation shall be made to them in the order named.
* * * * * *
(c) Compensation in death cases. In death cases, compensation payable to dependents shall be computed on the following basis, and shall be paid to the persons entitled thereto, without administration:
(1)Widow and no dependent child. If the deceased employee leave a widow and no dependent child, there shall be paid to the widow fifty percent (50%) of the average weekly wages of the deceased.
(2) Widow and child. If the deceased leave a widow and one or more dependent children, there shall be paid to the widow for the benefit of herself and such dependent child or children, sixty-six and two thirds percent (66⅜%) of the average weekly wages of the deceased.
(3) Widow and children, how paid. In all cases where compensation is payable to a widow for the benefit of herself and dependent child or children, the court shall have the power to determine in its discretion what portion of the compensation shall be applied for the benefit of any- such child or children, and may order the same paid to a guardian.
* * * * * ⅜:
(13) Actual dependents. Actual dependents shall be entitled to take compensation in the order named in subsection (a)(3) above, until sixty-six and two thirds percent (66⅜%) of the monthly wages of the deceased during the time specified in this chapter shall have been exhausted, but the total compensation to be paid to all actual dependents of a deceased employee shall not exceed in the aggregate eighty-five dollars ($85.00) per week.

The deceased employee left a widow and four dependent children. Under T.C.A. § 50-1013(c)(2), the widow and children are entitled to receive 66⅜% of the average weekly wage of the deceased, subject to the maximum benefit of $85 per week set forth in T.C.A. § 50-1010. Those benefits are payable to the widow under T.C.A. § 50-1013(c)(3), with the provision that the court may, in its discretion, allocate the benefits among the widow and children, and order that the benefits allocated to the children be paid to a guardian. The chancellor determined that a proper allocation of the benefits would be to award ¾ to the widow and to the children, with the portion due the children to be paid to the former wife of the deceased as their guardian. The appellant contends that this was error—that T.C.A. § 50-1013(a)(3), which sets forth the order in which dependents are to receive benefits, demonstrates an intent on the part of the legislature that the widow receive benefits in preference to the children. We do not agree with that construction of the statute. As we view it, T.C.A. § 50-1013(c)(3) expressly provides that when a deceased employee leaves both a widow and dependent children, the benefits are payable jointly, subject to the power of the court to allocate the benefits among them should that be appropriate. The separate listing of “wife” and “children” in T.C.A. § 50-1013(a)(3) is less to establish the priority between them than to establish the priority of each over the potential beneficiaries listed subsequently. See Allstate Erectors v. Boshell, 301 A.2d 316 (Del.Super.1972), aff’d 305 A.2d 619 (Del.1973), for a similar construction of a comparable statute. Also compare Williams v. Travelers Insurance Co., 530 S.W.2d 283 (Tenn.1975), in which the court approved a division of benefits among a widow and dependent children as being within the trial judge’s discretion.

The appellant further contends that, under the facts of this case, she is entitled to a greater portion of the benefits than was awarded to her. Upon a consideration of the record, we find no abuse of discretion in the proration of benefits decreed by the chancellor.

The judgment of the chancellor is affirmed. Costs of the appeal are adjudged against the appellant.

HENRY, C. J., and PONES, BROCK and HARBISON, JJ., concur.


source: Caselaw Access Project

author: DAUGHTREY, Judge.

license: Public Domain

text:
    C. L. ALEXANDER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 18, 1977.
    Certiorari Granted June 6, 1977.
    Affirmed by Supreme Court Feb. 6, 1978.

      Hughie Ragan, Jackson, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, Howard F. Douglass, Asst. Dist. Atty. Gen., Jackson, for appellee.
   DAUGHTREY, Judge.

OPINION

The defendant-appellant, C. L. Alexander, and his codefendant, James Morrow, were indicted for assault with intent to commit first degree murder. Both were convicted of assault and battery and sentenced by the jury to eleven months and twenty-nine days incarceration. Only Alexander appeals the conviction.

There was a sharp conflict in the testimony at trial. According to Melvin Perry, the 61 year old victim, two men stormed through the front door of his house one night as he lay sleeping in his bed, knocked out the ceiling lights, beat, kicked and then dragged him onto the front porch. There they stripped Perry of all his clothes except a tee shirt, and demanded money. Perry said that after he gave them the money he had in his wallet, $14.00, they threatened to kill him if he didn’t reveal the whereabouts of the “rest” of his money. The two men finally put him in an automobile and drove him to a remote spot where they pulled him from the car and physically assaulted him again. When their activity was interrupted by the passing of another car, they fled, leaving Perry injured and half-naked at the side of the road.

The occupants of the passing ear sought help for Perry. A local constable came to the scene and drove the battered victim back to his house to dress before taking him to a local hospital. The constable described the house as “ramshacked”: there was broken glass and blood on the porch, panes were missing from the front door (which was standing open), the electric ceiling lights had been smashed, the stove had been knocked over, and the house was in disarray.

The victim had never seen the two defendants before the day in question. Morrow had been to Perry’s house earlier that day, in the company of another man who owed Perry a small amount of money. Perry accompanied them to an informal gathering at a house up the road which was attended by several other people, including the defendant, Alexander. Perry testified that he did not know Morrow and Alexander by name, but that his identification of the defendants as the two men who assaulted him was predicated on the fact that he “had done seed them” at the time of the assault and “knowed their faces.”

There is no dispute that the two defendants were in the victim’s home on the date in question, and that they there engaged in a physical encounter with Perry. Statements given by the defendants to police several days later at the time of their arrest were introduced at trial over objection. According to both statements, the defendants went to Perry’s house because of an altercation that had occurred earlier in the day between Perry and a third party. Alexander told police he went for the purpose of seeing if the victim was “all right”; Morrow said that Alexander was angered by Perry’s earlier behavior and wanted to get even with him. They gave varying reports of what occurred at Perry’s home. According to Alexander, Perry was the first aggressor; according to Morrow’s story, Alexander first assaulted Perry and when Perry fought back, Morrow joined the fight. They both said they later attempted to take Perry to the hospital and that when he became obstreperous, they left him on the road. Both defendants denied robbing Perry. Both were fairly young men, and everyone concerned with the case was white except Perry, who was black.

We think the evidence against the defendant, in the absence of any error committed at trial, would be sufficient to sustain the conviction. Therefore we overrule those assignments of error regarding the sufficiency of the evidence to support the verdict of the jury.

Several other assignments are likewise without merit. The defendant complains of the trial court’s failure to sever Alexander’s case from that of Morrow. But there was no timely motion to sever filed prior to trial. Thus the defendant has waived his right to complain on appeal of the court’s failure to sever when asked to do so in mid-trial. Hoskins v. State, 489 S.W.2d 544 (Tenn.Cr.App.1972).

Alexander next attacks a certain portion of the prosecutor’s closing argument as being improper, on the ground that it contained a prejudicial misstatement of fact. There was a contemporaneous objection entered to the prosecution’s averment, but it was not made on the basis now assigned as error. Furthermore, tested under guidelines previously developed by this court, we do not think the prosecutor’s comment resulted in reversible error. See generally Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App. 1976).

The defendant further objects to the victim’s identification of him as one of the assailants, purportedly on hearsay grounds. However, the gist of the complaint is lack of personal knowledge, and we find that the defendant’s contention in this regard is not supported by the record.

Finally, Alexander contends that his constitutional right to confrontation was violated by the introduction of Morrow’s confession implicating him in the assault on Perry. At trial Alexander made a timely objection to the admissibility of Morrow’s statement on the basis of the United States Supreme Court’s opinion in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There the Court held that the use of one co-defendant’s confession to implicate the other violates the non-confessing co-defendant’s Sixth Amendment right to confront the witnesses against him.

In this case neither defendant took the stand. Because Morrow did not testify, Alexander had no opportunity to cross-examine him regarding the content of Morrow’s prior statement. Compare Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). And although both co-defendants confessed and both statements were read to the jury, the substance of the two confessions was not the same. Thus the situation does not fall within the exception noted in O’Neil v. State, 2 Tenn.Cr.App. 518, 455 S.W.2d 597 (1970) and State v. Elliott, 524 S.W.2d 473 (Tenn.1975).

The State contends that the Bru-ton violation was cured by substitution of the phrase “my friend” for Alexander’s name each time it appeared in Morrow’s statement. This argument is supported, rather lamely we think, by the proposition that the term “my friend” could apply to any one of many people who were in fact friends of Alexander. The State cites no legal authority for its position.

Under Tennessee law the editing of Morrow’s statement was insufficient to cure the Bruton problem involved. See White v. State, 497 S.W.2d 751 (Tenn.Cr.App. 1973), wherein this court determined that substitution of the phrase “the other person” for the name of a non-confessing co-defendant constituted a violation under Bruton. The White court held that “a statement of the confessing co-defendant [can] be used only if completely stripped of any incriminating references to the non-confessor,” and that “the insertion of ‘the other person’ does not meet that test.” 497 S.W.2d at 755. Likewise, in the situation now before us, there could be little or no doubt in the jurors’ minds that the reference to “my friend” in Morrow’s statement was in fact a reference to Alexander. This result was all the more inevitable because the State also introduced Alexander’s statement in which he admitted being in Perry’s house with Morrow. To compound the error, there is no indication in the record that the trial court at any time instructed the jury that Morrow’s statement could not be used against Alexander in determining Alexander’s guilt or innocence of the crime charged. We think the Bruton error here is clear and unmistakable.

We recognize that such error may be considered harmless in cases where proof of the defendant’s guilt is overwhelming and it appears beyond a reasonable doubt that the error has had no effect on the verdict. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); State v. Elliott, supra. After careful study, we are unable to say that this is true in the case before us. It follows that the defendant is entitled to a new trial free of such error.

Reversed and remanded.

RUSSELL, P. J., and GALBREATH, J., concur.

       Thus this case must be distinguished from Gwin v. State, 523 S.W.2d 636 (Tenn.Cr.App. 1975), in which this Court held that there was no Bruton violation because, among other factors, the confessing co-defendant’s statement had been redacted to read “blank” in each place where a non-confessing co-defendant’s name appeared. The distinguishing point is the fact that there were multiple co-defendants in Gwin, and not just two, as here, whose identities were otherwise made obvious to the jury.


text:
    Lloyd James McPHERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 31, 1977.
    Certiorari Denied by Supreme Court March 6, 1978.

      Charles A. Leach, Malcolm L. McCune, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Michael D. Noel, Asst. Dist. Atty. Gen., Nashville, for appel-lee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant was convicted of rape and sentenced to serve ten years in the penitentiary. The same jury then considered evidence presented by the State concerning the defendant’s prior convictions and returned a guilty verdict on the charge of habitual criminality, imposing the mandatory life sentence. On appeal the defendant challenges (1) the admissibility of an oral statement introduced against him at trial, and (2) the constitutionality of Tennessee’s habitual criminal statute, T.C.A. § 40-2801. For the reasons set forth below, we affirm both convictions.

I.

The only challenge presented by the defendant to the rape conviction concerns the admissibility of certain oral statements made by the defendant to police officers. After the defendant had been identified from a lineup by the rape victim, he was arrested and held in the county workhouse. While in jail, he was placed in solitary confinement, commonly called “the hole,” after he assaulted a guard in an attempt to escape. The defendant spent eight days in the hole, during which time his only visitor was a clergyman, the Reverend James A. Weeks. The defendant told Weeks that he wished to speak to a particular police officer, but did not indicate the purpose for this request. Weeks was unable to locate the officer, who was on vacation at the time.

The next morning the police sent for the defendant, bringing him from the workhouse to police headquarters. The officers had information linking the defendant to another crime, a homicide, about which they wished to question him. After being informed of his Miranda rights, the defendant refused to sign a waiver form. Nevertheless, the police began their interrogation after the defendant indicated that he understood his rights and was willing to talk to them. A few minutes later the defendant asked to speak to Reverend Weeks. The police sent for the clergyman, interrupting the questioning until he arrived. After conferring with Weeks, the defendant made a complete confession to the homicide. He then signed the waiver form which was again proffered by the police. Following this, almost as an afterthought, the officers asked the defendant about his involvement in the rape. He made several inculpatory remarks, culminating in an admission of guilt. These statements were not recorded, either electronically or steno-graphically. At trial the officers present repeated the statements made by the defendant, as best they could remember.

The defendant challenged the admissibility of this confession. He alleged that at the time of the lineup which resulted in his arrest he was represented by the public defender, and that at that lineup the public defender told the police that the defendant would make no statement. The public defender, testifying at the hearing on the defendant’s motion to suppress the confession evidence, indicated that he further admonished the police officers not to question the defendant. The content of this conversation, however, was not communicated by the public defender to his client. Two of the interrogating officers testified that they had no knowledge of the conversation; another said he could not recall the specifics of his conversation with the public defender.

The defendant asserts that the trial court erred in permitting testimony concerning the confession because the police violated his Fifth Amendment privilege against self-incrimination and his Six Amendment right to counsel. After a careful review of the testimony, however, we conclude that neither of these contentions is supported by the proof.

With regard to the Fifth Amendment claim, the evidence shows conclusively that the defendant was advised of his constitutional rights to remain silent and to have an attorney present during questioning. Instead of insisting on the presence of his attorney, the defendant by his own admission asked only to be allowed to consult with his minister, Reverend Weeks. This request was immediately carried out by the police, who then allowed the defendant to meet privately with Weeks and to have Weeks present during interrogation. Weeks testified that the defendant told him privately he was going to confess because “it was the right thing to do,” and that the defendant did not indicate that he wanted his attorney present at any time during the period of questioning. The defendant, testifying at the suppression hearing, said that he was aware at that time he had the right to have his attorney present, that he did not ask the police to call his attorney, and that he confessed to the murder but not to the rape. He said in this regard, “[I confessed to the murder] because I didn’t think it made any difference. I figured I could tell them anything and get out of the hole. I mean after all, I didn’t commit the crime, you know, and so why should it make any difference. And I realize now that it turned out to be a mistake.” He conceded that immediately following his murder confession, he signed a waiver form. He also said that once Weeks arrived, he felt that he would be successful in getting out of the hole.

Reverend Weeks was present throughout the interrogation concerning the murder charge, the rape charge, and two or three other charges which were pending against the defendant. He testified unequivocally to the non-coercive nature of the proceeding.

This proof amply supports the trial court’s determination that the statements later admitted into evidence were given voluntarily by the defendant, following a waiver of his Miranda rights. The combined testimony of the officers involved, of the neutral eyewitness, and of the defendant himself establishes the existence of a knowing and intelligent waiver. The account given by the minister corroborates the testimony of the interrogating officers and tends to establish that the statement was voluntary, despite the defendant’s self-serving testimony to the contrary. We find no Fifth Amendment violation on the record before us.

But the defendant further insists that the conduct of the police infringed upon his Sixth Amendment right to counsel, relying on the recent United States Supreme Court decision in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In Brewer the accused had been arrested in Davenport, Iowa, for a homicide occurring in Des Moines. He was represented by separate counsel in both places, and both attorneys had made agreements with local police that the defendant would not be questioned in the absence of counsel, and in particular that he would not be interrogated during his return to Des Moines. Despite this agreement, during the ride from Davenport to Des Moines one of the officers in the vehicle asked the accused about the location of the homicide victim’s body. The accused declined to answer, saying he would prefer to wait until after he consulted with his attorney in Des Moines. The officer pressed on successfully, using psychological pressure to secure an admission from the accused. Declining to address the question of a Fifth Amendment Miranda violation, the United States Supreme Court found a violation of the accused’s Sixth Amendment right to counsel and reversed his conviction on these facts.

We think the defendant’s reliance upon Brewer is misplaced. While it is true that the defendant’s attorney had requested that no statement be taken from his client, there was no agreement that the police would forego questioning in his absence. As the attorney conceded on the witness stand, it remained entirely possible for the defendant to waive his right to have counsel present during questioning, despite the attorney’s admonition to the police. See Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972).

We have already found that the defendant was informed of his constitutional rights prior to his confession and that he waived these rights for purposes of the Miranda requirements. The only remaining question is whether this waiver was also valid for purposes of his right to counsel under the Sixth Amendment. We conclude that there was a valid Sixth Amendment waiver, unless that constitutional provision requires the presence of counsel at the time the waiver is executed. Compare People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 (1976) with Commonwealth v. Yates, 467 Pa. 362, 357 A.2d 134 (1976) The major factual distinction between this case and Brewer is that at the time he was questioned the defendant manifested no desire to have his attorney present, a fact which he conceded at the suppression hearing. Thus there is nothing in the record to refute the officers’ testimony that the defendant made an oral waiver of his right to counsel. There is also evidence of his written waiver, executed after the homicide confession but prior to his statement concerning the rape charge. We think the State has discharged its burden of showing, by a preponderance of the evidence, that the defendant’s waiver of his right to counsel was voluntary, knowing, and intelligent. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). This being the case, we find no Sixth Amendment violation, and no error in the trial court’s determination of admissibility.

Nevertheless, we wish to reiterate the trial court’s finding that the confession in this case was saved principally by the presence of a neutral witness, Reverend Weeks. We agree fully with the trial judge’s conclusion that the police “tread on thin ice” when they question a suspect in the face of a request from his attorney that no interrogation occur in the attorney’s absence, whether or not this request is communicated by the lawyer to the client, and whether or not it is communicated by the officer who receives it to the interrogating officers. The police department must undertake measures to ensure that such requests by defense counsel are scrupulously honored. Otherwise there is a great risk that a subsequent confession will be invalidated for lack of adequate proof of waiver. It is the rare case in which a truly disinterested witness, such as Reverend Weeks, will be available to lend credence to an otherwise constitutionally suspect practice.

II.

The defendant next challenges the validity of the habitual criminal statute, T.C.A. § 40-2801. It is asserted that the statute is applied in a discriminatory fashion, because a large percentage of those eligible for prosecution under the act are in fact never prosecuted. Counsel suggests in this context that the application of the habitual criminal sanction is not unlike the discriminatory imposition of the death penalty which was struck down as unconstitutional by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This same argument was rejected by this Court in Hobby v. State, 499 S.W.2d 956 (Tenn.Cr.App.1973), and the Tennessee habitual criminal statute has been repeatedly held to be constitutionally valid. See, e. g., Canupp v. State, 197 Tenn. 56, 270 S.W.2d 356 (1954). In addition, the sound exercise of prosecuto-rial discretion in the selective enforcement of recidivist statutes has been upheld by the United States Supreme Court. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). For these reasons, we overrule the assignments of error directed to the validity of T.C.A. § 40-2801.

The judgment of the trial court is affirmed.

RUSSELL, P. J., and HAL D. HARDIN, Special Judge, concur.


text:
    Robert C. HESTER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 5, 1977.
    Certiorari Denied by Supreme Court Jan. 23, 1978.
    William H. Ortwein, Robert H. Feeney, Chattanooga, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Jerry S. Sloan, Jon Seaborg, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Robert C. Hester, was jointly indicted with one Tommy King for larceny, concealing, and receiving stolen property over the value of $100.00. Hester was tried alone and was convicted on the concealing count and sentenced to three to four years imprisonment. On appeal he challenges (1) the sufficiency of the convicting evidence, (2) the State’s failure to turn over certain tape recordings following a defense request under T.C.A. § 40-2441, and (3) the propriety and sufficiency of the trial court’s instructions to the jury. We find no reversible error in the record, and, accordingly, we affirm the conviction.

The charges against Hester and King arose as the result of an undercover investigation carried out in Chattanooga in September, 1975. One of the undercover agents involved in the investigation testified that he received a call from King, who offered to sell him an office calculator for $200.00. (At trial its value was established at between $600.00 and $700.00.) During the same phone call the undercover agent also talked to Hester, whose voice the agent recognized from prior phone conversations, and who identified himself as “Corn” Hester, a nickname used by the defendant. Hester assured the agent that the $200.00 asking price was firm.

A meeting was arranged within an hour of the telephone call. The agent and his partner both testified that Hester arrived at the designated location driving his car, with King and an unidentified woman as passengers. Hester opened the trunk of his car, and King removed the stolen calculator and placed it in the agents’ car. One of the agents handed King two $100.00 bills; King then gave Hester one of them, saying that “he wanted to pay some on his beer and liquor bill.”

The defendant did not testify, but presented three witnesses by whom he attempted to shift to King the full blame for the sale of the stolen calculator. The jury rejected the defendant’s version of the events surrounding the offense, and we are unable to say that the evidence preponderates against their verdict, as required in order to reverse the conviction on appeal. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We think there was ample evidence from which the jury could find that Hester and King were engaged in a joint venture vis-a-vis the stolen calculator. The assignment relating to the sufficiency of the proof is therefore overruled.

Next the defendant insists that the trial court should have suppressed testimony concerning the phone call from King and Hester, because the undercover agent to whom the call was made had taped the conversation but was unable to produce the tape recording in response to a pretrial discovery request by the defendant. At a jury-out hearing, the undercover agent testified that subsequent to the phone call he had inadvertently taped over the recording in question. There is, however, undisputed proof that some four months prior to trial the agent had met with the defendant’s attorneys and told them everything he knew about the case against their client, including the substance of the telephone call in question. He also allowed the attorneys to photocopy the notes he made on the night of the offense concerning the phone call and the subsequent meeting with Hester and King.

We think these facts establish sufficient compliance with the dictates of T.C.A. § 40-2441. The defendant’s reliance on Sambolin v. State, 215 Tenn. 569, 387 S.W.2d 817 (1965) to support his contention that the tapes constitute the “best” and only admissible evidence of the conversation is misplaced. In Sambolin, the accused apparently was not given notice of the State’s intention to offer testimony regarding certain oral statements allegedly made by him, and, furthermore, these oral statements had been reduced to writing at some point, but no copies were furnished under § 40-2441. Here the defendant was made fully aware that his oral statement would be offered against him, and although the statement was not reduced to writing, he was given full discovery of notes made by a witness concerning the content of the statement. There was no error and the assignment is therefore overruled.

Lastly, the defendant complains that the trial judge’s instructions to the jury concerning T.C.A. § 40-2707 were somehow misleading, and that the court erred in refusing a special request submitted by the defendant. Because the jury charge is not included in the bill of exceptions, a review of the record as to these two assignments is not possible, and they are therefore overruled.

The judgment of the trial court is affirmed.

RUSSELL and BYERS, JJ., concur.


text:
    Orville Curtis ALDRIDGE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 8, 1977.
    Certiorari Denied by Supreme Court March 6, 1978.

      C. Berkeley Bell, Jr., Greeneville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., Nashville, Charles E. Fraley, Jr., Asst. Dist. Atty. Gen., Charles R. Terry, Morristown, for ap-pellee.
   OPINION

DAUGHTREY, Judge.

As the result of an assassination plot to kill District Attorney General Heiskell Win-stead and his wife, Barbara Winstead, the defendant-appellant, Orville Curtis Al-dridge, was indicted for solicitation of murder in the first degree. Aldridge was subsequently convicted by a Hawkins County jury and sentenced to six to twenty-one years imprisonment. On appeal he attacks (1) the validity of the indictment, (2) the failure of the trial court to order a continuance, (3) both the sufficiency of the evidence and the admissibility of certain items of evidence introduced at trial, and (4) the trial court’s refusal to order a mistrial following the entry of guilty pleas by his two co-defendants after trial had begun. Because we find no error, we affirm the conviction.

The defendant first contends that the indictment returned against him was not sufficiently specific to protect him from subsequent prosecution for the same offense, because it is not possible to tell which of several arguably applicable offenses is charged in the body of the indictment. We reject this contention. The language of the charging instrument is almost exactly that of the applicable statute T.C.A. § 39-115 (“Solicitation to commit crime”), and it therefore follows that the notice requirements which must be met by an indictment have been fulfilled. Erby v. State, 181 Tenn. 647, 184 S.W.2d 14 (1944). Nor is the indictment duplicitous because it charges the existence of more than one intended victim. According to the proof at trial, the solicitation involved was a single act; therefore, soliciting two murders constituted part of the same transaction. Under such circumstances, conduct which might otherwise involve the commission of two offenses may be charged in one count of an indictment. State v. Smith, 194 Tenn. 608, 253 S.W.2d 992 (1952); Cornell v. State, 66 Tenn. 520 (1874); State v. Ailey, 50 Tenn. 8 (1870); Womack v. State, 47 Tenn. 508 (1870). The trial court did not err in overruling the defendant’s motion to dismiss the indictment, and the assignment is likewise overruled.

There was also no error in the trial judge's refusal to grant a continuance. The defendant’s attorney contends that he was not given adequate time to prepare a defense, citing his inexperience in criminal cases, the relatively short period of time between his appointment and the trial (25 days), and the even shorter period between his first interview with the defendant, who was incarcerated in the State Penitentiary for another offense, and the trial (nine days). But the record refutes the attorney’s modest assessment of his own professional abilities. The technical record reveals that he filed a total of nine pretrial motions, and a review of the bill of exceptions demonstrates vigorous and able pursuit of his client’s interests at trial. Furthermore, the record fails to disclose that the defendant’s case was prejudiced in any way by inadequate preparation, nor are any such specific instances alleged in the motion for a new trial or in the brief filed on appeal. We note also that prior to trial the district attorney offered to furnish defense counsel with a criminal investigator from his office, in order to aid the defendant in finding witnesses alleged to be “scattered • over several counties.” There is no intimation in the record that any material defense witnesses were unavailable at trial. We conclude that the defendant’s appointed attorney did a commendable job in the face of overwhelming evidence against his client, and we find no abuse of discretion in the trial court’s denial of a continuance. The assignment of error is therefore overruled.

The defendant next attacks the sufficiency of the conviction evidence, citing the “incredibility” of an informant who testified at trial and the alleged inadmissibility of a tape recorded conversation between the defendant and the informant. Not only are we precluded from reversing the conviction based on the credibility of witnesses at trial, State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973), but we find that there was ample additional evidence to establish the defendant’s guilt. Moreover, the circumstances surrounding the tape recording are similar to those in Clariday v. State, 552 S.W.2d 759 (Tenn.Cr.App.1976). Here, as in Clariday, the recipient of the telephone call, acting as a police informant, recorded the conversation as a result of the defendant’s misplaced confidence in the informant. There was no constitutional violation involved in this procedure. Clariday, supra at 769. Nor did the trial court err in ruling that the incompleteness of the tape recording (due to inadvertent “tape overs” by an undercover agent) affected its weight and not its admissibility, finding that it was otherwise properly authenticated. The assignments relating to the sufficiency and the admissibility of the convicting evidence are therefore overruled.

Lastly, the defendant assigns as error the trial court’s failure to grant a mistrial following the mid-trial decision of his two co-defendants to withdraw their pleas of not guilty and to plead guilty in return for negotiated sentences. This turn of events occurred immediately after direct examination, but before cross-examination, of the State’s principal witness, an undercover agent working in conjunction with the informant and posing as the would-be “hit man.” The defendant contends that this situation is analogous to that in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), on the grounds that he was thereby deprived of his right to confront and cross-examine his alleged cohorts, whose statements had been introduced into evidence during direct examination of the undercover agent.

The record shows that the two co-defendants withdrew their pleas of not guilty and re-entered pleas of guilty outside the presence of the jury. When the jury returned to the courtroom, the trial judge gave appropriate cautionary instructions concerning the absence of the co-defendants. Furthermore, the testimony of the undercover agent did not violate the rule in Bruton. Although he testified to extrajudicial statements of the co-defendants which tended to establish the commission of the offense in question, none of those statements in any way inculpated the defendant. Far more damaging to the defense was the agent’s testimony concerning highly incriminating extrajudicial statements made by the defendant himself and as to these statements the agent was subjected to rigorous cross-examination. There was no error, and, accordingly, the assignment is overruled.

The judgment of the trial court is affirmed.

WALKER and BYERS, JJ., concur.


author: DANIEL, Justice.

text:
    M. J. BRANNON, et al., Petitioners, v. GULF STATES ENERGY CORPORATION, et al., Respondents.
    No. B-6759.
    Supreme Court of Texas.
    Dec. 30, 1977.
    Rehearing Denied March 15, 1978.

      Clark & Tartaglia, W. Scott Clark, Fort Worth, for petitioner.
    Levi Old and Willoughby, Brown, Longe-necker, Beeeham, KLoons & Rapier, John E. Rapier, Dallas, for respondents.
   DANIEL, Justice.

The question in this case is whether an oil and gas lease terminated for nonpayment of delay rentals where there was a late payment and acceptance by the lessor of a check designated as “lease rental.” More specifically, the issue is whether parol evidence was admissible to vary the written designation of the late payment from a “rental” to a bonus for a new lease.

Petitioners, M. J. Brannon, Jr., Otis Thompson, Patricia A. Elliott, and Henry W. Elliott III claim under a lease dated November 20,1973, from Clara Odessa Martin covering 202 acres in Coleman County. The first delay rental of $202.00 due November 20, 1974, was not timely paid. However, Petitioners allege that on January 17,1975, Respondent, Gulf States Energy Corporation, while holding an interest in said lease, made a late written tender of the rental to the lessor by letter and cheek. Both of these designated the payment as “lease rental,” and the check was accepted by the lessor. Respondent, Gulf States, countered with the allegation that the check was in fact a bonus paid in advance for a new lease which Mrs. Martin executed and delivered to Gulf States on July 9,1975. The trial court, over the objection of Petitioners, permitted parol evidence at variance with the “rental” letter and check. Upon jury findings favorable to Gulf States, a take nothing judgment was entered against the Petitioner-plaintiffs. The Court of Civil Appeals affirmed. 548 S.W.2d 790. We reverse and remand for further proceedings in accordance with this opinion.

On November 20, 1973, Mrs. Clara Odessa Martin executed an oil and gas lease to Mary Linn Elliott covering the 202 acres mentioned above. It was a five year lease providing for termination at the end of each anniversary date unless an annual rental of $202.00 was paid or the lease was otherwise perpetuated by drilling operations or production. In the meantime, Mrs. Elliott had also acquired an adjoining 1900 acre lease known as the “Evans lease.” Early in 1974, Mrs. Elliott negotiated the terms of a sale of the Martin and Evans leases to Royal Russell, sole owner and stockholder of Gulf States, whereby she would assign the leases for a cash consideration and retain a ¾6⅛ overriding royalty. Prior to Mrs. Elliott’s execution of the assignments, Royal Russell negotiated . an agreement with Master Drillers, Inc., on February 18, 1974. It referred to the separate tracts as one lease and recited that Master was interested in purchasing said lease and “acting in a capacity of ‘Warehousing’ said lease for and on behalf” of Gulf States, and that the two companies were interested in jointly developing same. The agreement provided, among other things, that (1) Gulf States “agrees to allow Master to purchase” said lease and to give up any option then held by Gulf States to purchase same; (2) that Master would purchase the lease for $25,000, and give Gulf States an option to purchase no less than one half of the usable oil locations on said lease for a total accumulated price of one-half of Master’s purchase price, with lease assignment to Gulf States to be a net 77%; and (3) that Gulf States would be allowed to make its selection of drilling locations prior to any other party, including Master.

At Russell’s request, on February 20, 1974, Mrs. Elliott executed assignments on the Martin and Evans leases to Master Drillers, Inc., “effective as of February 18, 1974.” The ½6⅛ overriding royalty reserved by Mrs. Elliott in the Martin lease assignment was conveyed by her on March 26,1975, to her children, Patricia Elliott and Henry Elliott III, who are two of the Petitioners here.

Russell testified that he had made selections for Gulf States under the agreement with Master, had drilled wells on the Evans portion of the acreage, and that during 1974 Gulf States had paid Master the $12,500 which entitled Gulf States to one-half of all the acreage assigned to it by Mrs. Elliott. The agreement between Gulf States and Master was not recorded and no assignment was made from Master to Gulf States on its interest in the Martin 202 acre lease. On October 22,1974, the Internal Revenue Service seized the Martin and Evans leases along with other property of Master Drillers to enforce a lien for taxes.

Mrs. Martin’s annual lease rental was not paid on November 20,1974. She so advised Mrs. Elliott after Christmas in December of 1974. Because of this jeopardy to her overriding royalty, Mrs. Elliott testified that she called Royal Russell and asked him to pay the rentals. Russell remembered a call from Mrs. Elliott about the Evans lease but denied any mention of the Martin lease. In any event, by letter dated January 17,1975, addressed to Mrs. Martin, with a copy mailed to Mrs. Elliott, Royal Russell transmitted a Gulf States check payable to Clara Odessa Martin in the sum of $202.00, on which was typed “Lease Rental.” The letter read in part as follows:

“Dear Mrs. Martin:
Enclosed please find check # 6240 in the amount of $202.00 which is for lease rental on the following described lease:
[Description]
Thank you. Sincerely,
GULF STATES ENERGY CORPORATION
(s) Royal Russell
President
RR/mdm
Enclosure

cc: Mrs. Mary Elliott”

The check was received, accepted, endorsed, and deposited in her bank account by Mrs. Martin. On January 24, 1975, Mrs. Elliott wrote Mrs. Martin, “I trust you have received your rental money, since Mr. Russell advised me that he was mailing the check.”

On May 27, 1975, at a public sealed-bid sale by the Internal Revenue Service, petitioner Thompson bought all rights and interests of Master Drillers in the Martin and Evans leases. Royal Russell attended the sale and submitted a lower bid on behalf of Gulf States. Thompson conveyed one-half of his purchase to petitioner Brannon by quitclaim deed dated June 9, 1975. Subsequent delay rentals, due November 20,1975, were tendered by them to Mrs. Martin but were declined by her.

On July 9, 1975, Mrs. Martin executed a new ten-year lease on the 202 acres to Gulf States. It made a first well location on the tract in late July of 1975 and drilled three wells in spite of the recorded conveyances to Thompson and Brannon and written notices from their attorneys protesting any operations on the property by Gulf States. This suit was filed by Petitioners Brannon and Thompson on September 17,1975, seeking a declaratory judgment that the lease of November 20, 1973, from Clara Odessa Martin to Mary Linn Elliott was in full force and effect; that the subsequent lease from Mrs. Martin to Gulf States be declared void; and that Gulf States be ordered to vacate the premises. Petitioners Patricia and Henry Elliott intervened, seeking similar relief and an accounting and payment for Vifíth of the oil, gas and other minerals produced from the 202 acres. Gulf States filed a general denial, a special claim of development of the tract under a superior lease, and an alternative claim for development expenditures in excess of $210,000.

Gulf States’ claim to a superior title rests upon parol testimony of Mrs. Martin and Royal Russell that the $202.00 “lease rental” paid by Gulf States to Mrs. Martin on January 17, 1975, was not in fact a rental due under the Martin-Elliott lease of 1973, but a bonus for a new lease from Mrs. Martin to Gulf States executed by Mrs. Martin on July 9, 1975. In support of this direct contradiction of the written terms of the rental letter and check, there was other parol evidence to the effect that shortly before Christmas of 1974, Mrs. Martin orally agreed to make a new lease to Gulf States in consideration of $202.00 and a promise to drill a well. This evidence is summarized in narrative form by the Court of Civil Appeals.

Petitioner-plaintiffs have contended throughout this litigation that the parol evidence rule rendered inadmissible the testimony of Mr. Russell and Mrs. Martin contradicting the written Gulf States rental letter and the $202.00 rental check of January 17, 1975, which was accepted and endorsed by Mrs. Martin. If they are correct, then admission of such parol evidence was erroneous and there was no probative evidence warranting the submission of special issues 1 through 4. The Court of Civil Appeals held that the parol evidence rule did not apply because the letter and check were not contractual, and even if so, that the rule could not be invoked by a stranger to the transaction.

Contractual Nature of the Letter and Check

That a written instrument cannot be varied by parol evidence is a rule of substantive law. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958); South Texas Implement & Machine Co. v. Anahuac Canal Co., 280 S.W. 521, 523 (Tex.Comm.App.1926, judgmt adopted). Yet it is true that the rule applies only to contractual or jural writings evidencing the creation, modification, termination or securing of a particular right or obligation. 9 J. Wigmore, A Treatise on Evidence §§ 2400-01 (3d ed. 1940); 2 C. McCormick and.R. Ray, Texas Law of Evidence § 1612 (1956); 4 S. Williston, A Treatise on the Law of Contracts § 631 (3d ed. 1961).

We consider the letter and the check relating to “lease rentals” as contractual in nature because late payment and acceptance of annual rentals provided for in an oil and gas lease has the effect of reviving the lease as though it had never terminated. Mitchell v. Simms, 63 S.W.2d 371 (Tex.Comm.App.1933, holding approved); McCoy v. Texon Royalty Co., 124 S.W.2d 877 (Tex.Civ.App.1939, writ dism’d, judgmt correct). See also Humble Oil and Refining Co. v. Harrison, 146 Tex. 216, 205 S.W.2d 355 (1947); Myers v. Crenshaw, 116 S.W.2d 1125 (Tex.Civ.App.1938), affm’d 134 Tex. 500, 137 S.W.2d 7 (1940).

In Simms, a rental due on June 1, 1929, was paid in December, over six months late. The payment was accepted by the lessor, and it was held that such acceptance es-topped the lessor from “claiming that the lease had terminated before payment was made.” The court said: “The practical result ... is the same as if Simms and wife [the lessors] had by binding agreement in December, revived the lease.” By the same token, the written tender of lease rentals by Gulf States to Mrs. Martin two months late and her acceptance, endorsement, and deposit of the check to her account had the same effect as a binding agreement to revive the only existing lease on which any “rentals” were due. The transaction was contractual in nature. Furthermore, there is no ambiguity in the term “lease rental.” One pays lease rental for the purpose of delaying drilling operations, rather than consideration for a new lease. Griffith v. Taylor, 156 Tex. 1, 291 S.W.2d 673, 676 (1956). The parties were familiar with the term. Being evidenced by unambiguous written documents clearly designating the payment as rentals, extrinsic parol evidence was not admissible to prove that the “lease rental” was a bonus consideration for an unexecuted lease rather than rental due under the executed Martin-Elliott lease of November 20, 1973.

Strangers to the Lease?

Gulf States asserts in the alternative that the parol evidence rule does not apply to strangers to a transaction and could not be invoked in this case because Gulf States was a stranger to the Martin-Elliott lease. As such, it argues that any payment by it of the late rental could not bind either the lessor or the lessee or inure to the benefit of Petitioners. We shall not discuss the authorities on this point, because it is our opinion that Gulf States was not a stranger to the Martin-Elliott lease when it sent the rental letter and check to Mrs. Martin on January 17, 1975.

On the contrary, Gulf States, through its President and sole owner, Royal Russell, had arranged the purchase of the Martin and Evans leases from Mrs. Elliott. Prior to their assignment from Mrs. Elliott, Gulf States entered the written agreement of February 18, 1974, with Master Drillers whereby the latter would pay the cash consideration of $25,000 to her, receiving the assignments in its name and “acting in a capacity of ‘Warehousing’ said lease for and in behalf of GSE [Gulf States] . . ..” By the agreement Gulf States agreed “to allow Master to purchase” the lease (referring to both the Martin and Evans tracts as one lease), with. Gulf States having the option to purchase no less than one-half of the usable oil and gas locations thereon for one-half of the purchase price paid to Mrs. Elliott by Master. Russell testified that he made certain selections and had paid Master Drillers the $12,500, which entitled Gulf States to one-half of the lease, before the end of 1974. Gulf States claimed this interest in the Martin-Elliott lease before the IRS sale and as late as December, 1974, when Russell showed the IRS the February 18, 1974, agreement with Master Drillers. Gulf States still claimed an interest in the lease when it bid at the IRS sale of Master Drillers’ interest on May 27, 1975. In answer to a question on oral argument in this Court, Gulf States’ counsel stated that the company would still claim to own an interest in the Martin-Elliott lease if this Court decided that the lease is in effect.

Under the “warehousing” agreement of February 18, 1974, between Gulf States and Master Drillers, the latter was holding in its name one-half of the unassigned Martin and Evans leases for Gulf States when Gulf States paid “lease rentals” to Mrs. Martin on January 17,1975. If not an express trust, the written agreement of February 18, 1974, at least created a constructive trust under which Gulf States could have enforced its right to assignments due under the contract. Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1957). The rights of Gulf States, held in trust for it by Master Drillers, were not extinguished or transferred when the IRS sold Master Drillers’ interest in the lease to Thompson by quitclaim deed on May 27, 1975. The quitclaim purported to cover only “the right, title and interest of the said Master Drillers, Inc.,” in and to the leases, and its legal effect was to convey only such interest as the delinquent taxpayer [Master] owned at the time of the lien and quitclaim. 26 U.S.C. § 6339(b)(2); Mansfield v. Excelsior Refining Co., 135 U.S. 326, 10 S.Ct. 825, 34 L.Ed. 162 (1889); Crow v. Wyoming Timber Products Co., 424 F.2d 93 (10th Cir. 1970). See also Winningham v. Dyo, 48 S.W.2d 600 (Tex.Comm.App.1932, judgmt adopted); Gulf Production Co. v. State, 231 S.W. 124 (Tex.Civ.App.1921, writ ref’d); 23 Am.Jur.2d § 292.

Under the circumstances, Thompson and his assignee by quitclaim Brannon, were not innocent purchasers for value. They received only the title of Master Drillers, which was subject to the interest of- Gulf States under its written but unrecorded agreement with Master Drillers. Thus, Gulf States was not a stranger to the Martin-Elliott lease when it sent the “lease rental” to Mrs. Martin. Unless it has since lost its interest by waiver, election, renouncement or some other action (a question which we do not now decide), Gulf States is still entitled to the one-half interest it had acquired in the Martin-Elliott lease under its agreement with Master Drillers dated February 18, 1974.

Conclusions and Instructions on Remand

Since the written lease rental payment and acceptance were contractual and unambiguous, it was error to allow the terms and effect thereof to be varied by parol evidence. We hold that the Martin-Elliott lease of November 20, 1973, is in full force and effect and that it is superior to the Martin-Gulf Coast lease of July 9, 1975.

As to the ½6⅛ overriding royalty retained by Mrs. Mary Linn Elliott in her assignment to Master Drillers on February 20, 1974, we hold that it is in effect and is owned by Patricia A. Elliott and Henry W. Elliott III. On remand, the trial court should enter judgment in their favor for title to such royalty, for an accounting by Gulf States, and for recovery of Vwth of all of the oil, gas and other minerals produced, saved and marketed by Gulf States from the Martin 202 acres, in accordance with the terms of the assignment referred to above.

As to ownership of the Martin-Elliott oil and gas lease, we hold that it is vested in M. J. Brannon, Jr., and Otis Thompson, subject to (1) the ½6⅛ overriding royalty of Patricia A. Elliott and Henry W. Elliott III, (2) the right of Gulf States to reimbursement of one-half of the lease rental paid on January 17, 1975, (3) the rights, if any, of Gulf States under its agreement of February 18, 1974, with Master Drillers, and (4) an offset in favor of Gulf States for the amount of Brannon and Thompson’s share of any reasonable and actual expenses found to have been made by Gulf States in drilling, operating and producing the wells on the Martin-Elliott lease when an accounting is made between the parties for the production of oil, gas and other minerals therefrom.

If, upon remand, Gulf States asserts no interest in the Martin-Elliott lease or it is found by the court to have no interest therein, then Gulf States will be entitled to an offset of the actual amount of its reasonable expenditures in drilling and developing the leasehold estate if Gulf States is again found to have drilled and developed the 202 acre lease in good faith belief in the superiority of its lease of July 9, 1975. Petitioners insist that as a matter of law Gulf States cannot be a trespasser in good faith because of its own revival and knowledge of the Martin-Elliott lease. We disagree. Under certain circumstances, one can be completely mistaken in his claim of superior title and yet be a trespasser in good faith. The question is usually one of fact. Gulf Production Co. v. Spear, 125 Tex. 530, 84 S.W.2d 452, 457 (1935); McMurrey Corp. v. Shell Oil Co., 173 S.W.2d 354 (Tex.Civ.App.1943, writ ref’d); Gulf Production Co. v. Baton, 108 S.W.2d 960 (Tex.Civ.App.1937, writ ref’d).

Although Petitioners’ adverse claim had been known and asserted by letters, no suit was filed against Gulf States prior to its entry upon the leasehold and spudding its first two wells. It consulted legal counsel before incurring expenses on the lease. On retrial, substantially the same evidence as to belief in the superiority of its title would support a jury finding that Gulf States conducted its operations and made its expenditures in good faith. However, the amount of the expenditures should not be a mere estimate as on the present trial. Rather, it should be based on a detailed accounting of the actual expenditures. See the above cited cases and Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 93 (1955). Under the applicable decisions, the amount of such expenditures may be recouped by Gulf States only by way of an offset if they are less than the amount received by Gulf States and owed to Bran-non and Thompson for production from the 202 acres.

As indicated, our holding concerning the validity and effectiveness of the Martin-Elliott lease, as prayed for by Brannon and Thompson, leaves several equitable issues between them and Gulf States which cannot be determined on the record now before us. We are not informed whether the wells on the Martin 202 acres have produced more income than the cost of drilling and operating them. No accounting has been sought by Brannon and Thompson from Gulf States, and the latter has made no alternative plea for an interest in the Martin-Elliott lease. Thus, it is necessary that we reverse and remand the case to the trial court for further proceedings to determine those equities between Brannon-Thompson and Gulf States which are incidental to our holding that the Martin-Elliott lease is in effect. Upon remand, the trial court is instructed to enter a judgment in accordance with this opinion after hearing and determining the incidental issues referred to above between Brannon-Thompson and Gulf States. Their pleadings should be amended in order that these incidental issues and other phases of the controversy may be resolved in the final judgment of the trial court.

Accordingly, the judgments of the lower courts are reversed and the case is remanded to the trial court for further proceedings in accordance with this opinion.

ON MOTION FOR REHEARING

Both petitioner, Brannon, and respondent, Gulf States Energy Corporation, have filed motions for rehearing. Brannon asks that we delete from our opinion any inference of a possibility that Gulf States may now own an interest in the 1973 Martin 202 acre lease, which was conveyed by quitclaim deed from the Internal Revenue Service to Brannon, et al. Brannon states that this issue has been litigated and determined against Gulf States in another lawsuit in Coleman County. The record in this case does not reveal any such prior litigation, and it has been referred to for the first time in Brannon’s motion for rehearing. Brannon further argues that by judicial admissions, estoppel, and election of an inconsistent remedy, Gulf States has waived any claim to an interest in the 1973 Martin lease. Neither of these issues has been fully developed or briefed in the present case. Therefore, such issues should be considered at the trial upon remand.

Brannon also argues that none of the evidence on good faith development by Gulf States is admissible in view of our holding that such evidence could not vary the written instruments evidencing payment of rentals by Gulf States on the 1973 Martin lease. While parol evidence was not admissible to vary the written contract, it is admissible and should be heard on retrial for the sole purpose of determining whether Gulf States believed in good faith in the superiority of its 1975 lease when it drilled the three wells on the Martin lease. Bran-non contends that Gulf States should be held as a matter of law not to have been in good faith in drilling the third well because it was commenced after this suit was filed. This particular argument is overruled because Gulf States entered upon the Martin tract and began its drilling program prior to the filing of this case. The question of Gulf States’ good faith is still one of fact to be decided upon remand.

Brannon further contends in the alternative that each of the three wells should be treated separately in determining the re-coupment of costs to which Gulf States would be entitled if held again upon retrial to have been acting in good faith. However, this argument is not briefed; no cases are cited on the point; and like the other issues referred to above, it should be developed, briefed and decided at the new trial.

Gulf States’ motion complains of our holding that it was not a stranger to the 1973 Martin lease when it paid the rentals due thereon. It argues that no right or title ever passed to it by reason of the contract with Brannon dated February 18, 1974, or by a constructive trust resulting therefrom. We have disposed of this argument in our original opinion contrary to the views argued by Gulf States.

Accordingly, both motions for rehearing are overruled.

      . The description lists Tract No. 1 of 161.5 acres and Tract No. 2 of 40.5 acres in substantially the same form as in Mrs. Martin’s lease to Mrs. Elliott and in exactly the same form and wording as the 202 acres was described in the assignment from Mrs. Elliott to Master Drillers.

      . Upon this evidence the jury made the following findings: (1) the Gulf States check dated January 17, 1975, payable to Mrs. Martin was not paid by Gulf States as delay rental on the Martin-Elliott lease dated November 20, 1973; (2) not answered; (3) Gulf States paid $202.00 to Mrs. Martin on January 17, 1975, as consideration for the Martin-Gulf States lease dated July 9, 1975; (4) Mrs. Martin accepted payment of the $202.00 as consideration for the Martin-Gulf States lease; (5) Gulf States drilled and made improvements on the 202 acres believing, in good faith, it had a valid right to drill such well or wells; and (6) the value of the improvements made by Gulf States on the 202 acres was $200,000.

      . For cases containing statements to the effect that the rule is inapplicable to strangers to a contract see Vander Stucken v. Willoughby, 242 S.W. 478 (Tex.Civ.App.1922, no writ); United States v. Menier Hardware No. 1, Inc., 219 F.Supp. 448, 459-60 (W.D.Tex.1963); and White v. Hunt, 193 Miss. 742, 10 So.2d 539 (1942). For the contrary view which is more applicable to the facts of this case, see Cannon v. Pearson, 383 S.W.2d 565, 570 (Tex.1964); Kingsbery v. Phillips Petroleum Co., 315 S.W.2d 561, 571 (Tex.Civ.App.1958, writ ref’d n. r. e.); 2 C. McCormick and R. Ray, Texas Law of Evidence § 1621 at 475-76 (1956); and 9 J. Wigmore, supra, § 2446 at 150.


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    William Kyle MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 54207.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.
    State’s Motion for Rehearing Denied Feb. 8, 1978.
    R. Leonadis McKinney, III, Colorado City, on appeal only, for appellant.
    Frank Ginzel, Dist. Atty., Colorado City, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order of the court revoking the appellant’s probation. The trial judge found that the appellant had violated a condition of his probation, sentenced the appellant to confinement in the county jail for 60 days, and imposed a fine of $100.

The appellant’s contentions are numerous. Due to our disposition of the case, we need only consider the appellant’s contention that the trial judge abused his discretion in holding that the appellant violated a condition of his probation by possessing a usable quantity of marihuana. We reverse the conviction and remand the cause.

On January 12,1976, the appellant pleaded guilty to the offense of driving a motor vehicle upon a public road while under the influence of intoxicating liquor. The appellant was assessed 60 days’ confinement in the county jail and a fine of $100. The trial judge suspended the imposition of the term of imprisonment.

One of the conditions of the appellant’s probation was that he “1. [cjommit no offense against the laws of this State or any other State or the United States.”

The State’s motion to revoke, filed on June 3,1976, and amended on June 7,1976, alleged in part that . . on or about the 16th day of March, 1976, he knowingly possessed a usable quantity of marihuana, to-wit: less than two (2) ounces . . ..”

On June 16, 1976, a hearing was held on the State’s amended motion. At the close of that hearing, the trial judge found that the appellant had violated condition 1 of his probation by knowingly possessing a usable quantity of marihuana on March 16, 1976.

The testimony reveals that on March 16, 1976, Wendel Bryant, an off-duty policeman, saw the appellant driving his automobile on a public street in Colorado City. The appellant and his companion were slumped down in their seats and the officer could barely see their heads. Shortly thereafter, Bryant encountered Sgt. Fuller, who was on patrol duty. Bryant told Fuller what he observed and that he thought the occupants of the automobile were smoking marihuana.

Fuller then saw the appellant’s automobile travelling on a busy street. He likewise noticed that the appellant and his companion were slouched very low in their seats and could barely see them. Fuller testified that he stopped the appellant because he thought the appellant was endangering lives and property.

Fuller further testified that after he stopped the appellant he observed that the appellant’s eyes were bloodshot and glassed over. He also smelled the odor of burning marihuana coming from inside the vehicle.

Fuller, after smelling the odor of burnt marihuana, saw what appeared to be fragments of marihuana, marihuana seeds on the floorboards and both seats, and a pink “roach” in the ash tray.

After Fuller took the appellant and his companion to the police station, he searched the appellant’s automobile. The search revealed the contents of State’s Exhibits 1, 1A, 2 and 3.

State’s Exhibits 1 and 1A, a pipe and two roach clips, revealed traces of marihuana residue. David Legg, a chemist with the Texas Department of Public Safety, testified that the residue was not usable. Rather, Legg indicated that the residue was from marihuana which had already been used.

State’s Exhibit 2 consisted of a baggie containing eight marihuana seeds and other debris. Legg testified that he could identify marihuana particles among the debris in State’s Exhibit 2. He did not testify as to their weight.

Legg also testified that he attempted to germinate the eight seeds. Only one seed germinated. There was no testimony relating to the weight of either the eight seeds or the seed which germinated.

State’s Exhibit 3 consisted of a baggie containing debris, paper, matchsticks and trash collected from beneath the driver’s seat and the ash tray. Legg testified that his chemical test of the contents of State’s Exhibit 3 revealed a trace of marihuana. Legg did not testify as to the weight of the marihuana contained in State’s Exhibit 3.

Legg, however, did testify that the usable quantity of marihuana contained in State’s Exhibits 1, 1A, 2 and 3 was “probably” less than one-tenth of a gram. However, Legg could not testify to the exact weight of the usable marihuana. Moreover, Legg apparently included the residue from State’s Exhibits 1 and 1A, and the seeds from State’s Exhibit 2 which did not germinate, in his estimate of the weight of the marihuana.

Since Legg had previously testified that State’s Exhibits 1 and 1A did not contain usable marihuana and seven of the eight seeds contained in State’s Exhibit 2 did not germinate, Legg’s testimony that there was probably less than one-tenth of a gram of marihuana was speculative at best.

More importantly, Legg testified that a usable quantity of marihuana for smoking purposes was between two-tenths and five-tenths of a gram.

In Pelham v. State, 164 Tex.Cr.App. 226, 298 S.W.2d 171 (1957), we discussed Texas’ former law which dealt with marihuana. We there stated:

“We know that the use commonly made of marijuana is to smoke it in cigarettes; it is not taken internally or by hypodermic, as are other narcotics. Such being true, we have concluded that the reasonable construction and interpretation to be applied here is that the legislature intended that to constitute the unlawful act of possessing marijuana there must be possessed an amount sufficient to be applied to the use commonly made thereof. In other words, unless the amount of marijuana possessed is such as is capable of being applied to the use commonly made thereof, it does not constitute marijuana within the meaning of the statute.” Pelham v. State, supra at 173, 298 S.W.2d at 173.

Unless we are willing to expressly overrule Pelham and hold that a single, nonster-ilized marihuana seed capable of germination is a usable quantity of marihuana, there is no evidence that the appellant possessed a usable quantity of marihuana. See Lejeune v. State, 538 S.W.2d 775, 780 (Tex.Cr.App.1976) (Dissenting Opinion of Judge Odom); Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974). We decline the opportunity to overrule Pelham.

The trial judge abused his discretion in revoking the appellant’s probation. The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority incorrectly holds that the evidence is insufficient to show that appellant possessed a usable quantity of marihuana.

Article 4476-15, Section 1.02(17), V.A.C.S., defines marihuana as follows:

“ ‘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 sterilized seed of the plant which is incapable of germination.” (Emphasis added).

In Getters v. State, 170 Tex.Cr.App. 331, 340 S.W.2d 806 (1960), the conviction was for the possession of marihuana under Article 725b of the former code. The evidence showed that two Houston police officers had found some marihuana seeds and 35 marihuana leaf fragments in defendant’s apartment. The leaf fragments weighed .02 of a gram and would not have made a marihuana cigarette. It was unknown whether the seeds were viable.

On appeal, defendant contended that the evidence was insufficient to support the conviction because the 35 leaf fragments, by themselves, were not of sufficient quantity to make a marihuana cigarette and thus was not an amount sufficient to be applied to the use commonly made thereof. Reasoning that the leaf fragments together with the seeds were of sufficient quantity to make a marihuana cigarette, this Court held that the evidence was sufficient to meet the requirements set forth in Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957).

On the motion for rehearing in Getters, defendant argued that marihuana seeds were not commonly used for smoking and were to be excluded in determining whether the amount of marihuana was sufficient under Pelham. We rejected that contention and stated:

“. . . However, the majority holding [in Pelham ] was upon the assumption that the only use commonly made of marihuana is to smoke it in cigarettes. The seed which are specifically included in the definition of marihuana and the plant Cannabis Sativa L. are not restricted to that use, though the officers testified they were so commonly used.” 340 S.W.2d at 808.

Taking together Section 1.02(17), supra, and Getters v. State, supra, marihuana seeds are to be included in determining whether the evidence is sufficient to show a usable quantity of marihuana, and smoking marihuana in cigarettes is not the only use commonly made of the drug. The marihuana could have been placed in a pipe and smoked and thus could have been usable. It does not take a full marihuana cigarette to be smoked. Roach clips are used for smoking “roaches” or very small marihuana cigarette butts. If a butt can be smoked, it contains a usable amount.

In the instant case, a pipe containing the residue of smoked marihuana was found under the seat of appellant’s automobile, and a “pink roach” was found in the ash tray. Marihuana fragments and seeds were found all over the car. Eight seeds were tested for viability and one germinated. At the request of the prosecutor, the chemist tested eight seeds. On the fourth day none had germinated. On the fifth day one germinated. Such viable marihuana seeds are usable in the growing of marihuana plants. Although the testimony presented by the State was ambiguous with respect to the number of seeds found in the car, it appears that more than eight were found. The marihuana particles found in the car weighed approximately .10 of a gram.

The State thus proved that twelve per cent of the seeds tested were viable and that some non-tested seeds apparently were scattered throughout appellant’s automobile. These non-tested seeds could have been used in making a cigarette even if they were incapable of germination.

The evidence that appellant possessed, almost .10 of a gram of marihuana fragments, without more, was sufficient to show possession of a usable quantity. Cf. Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) [63 milligrams of marihuana held sufficient]; Rainey v. State, 464 S.W.2d 865 (Tex.Cr.App.1971) [.02 grams of marihuana held sufficient]; Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) [.0074 grams of marihuana held sufficient]; and Terrill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976) [1.48 grams held sufficient to show a usable quantity of marihuana]. In any event, the preponderance of the evidence of possession of both the marihuana fragments and the seeds was sufficient to show that appellant possessed a usable quantity of marihuana.

No abuse of discretion has been shown. The judgment should be affirmed.

      . Although the motion to revoke alleged three grounds for revocation, the trial judge revoked the appellant’s probation only on the ground that he knowingly possessed a usable quantity of marihuana.

      . See Article 4476-15, Section 1.02(17), Controlled Substances Act, which states:
      “ ‘Marihuana’ means the plant Cannabis sati-va 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.”
      Thus, it is not clear whether the seven seeds which did not germinate were sterilized and incapable of germination, and hence excluded from the definition of marihuana, or merely seeds and within the definition of marihuana.

      . Article 725b, Vernon’s Ann.P.C.


author: DOUGLAS, Judge.

text:
    Ex parte Lafayette SANFORD, Jr.
    No. 56713.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.

      Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

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

Petitioner was convicted in Cause No. 17121 in the 54th Judicial District Court of McLennan County of theft of edible meat. The punishment, enhanced under the provisions of Article 63, V.A.P.C. (1925), was assessed by the jury at life. Upon appeal, this Court affirmed the judgment on March 14, 1973. 492 S.W.2d 581.

On August 26, 1977, petitioner filed an application for writ of habeas corpus in the trial court contending that a 1960 robbery by assault conviction in Cause No. 14629 in McLennan County, upon which the State relied for enhancement, was void. The court found that conviction was based upon a fundamentally defective indictment. We agree.

An examination of the indictment in Cause No. 14629 reveals that it is fundamentally defective because it fails to allege the ownership of the property alleged to have been taken. Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Adams v. State, 540 S.W.2d 733 (Tex.Cr.App.1976); Ex parte Fuqua, 548 S.W.2d 909 (Tex.Cr.App.1977). Such a fundamentally defective robbery indictment may be challenged by way of a post conviction application for writ of habeas corpus. Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Fuqua, supra. Petitioner’s conviction under the provisions of Article 63, supra, cannot stand since a prior void felony conviction was utilized.

The other prior conviction relied upon for enhancement purposes was a 1964 conviction for theft from a person. Assuming such conviction was an offense of like nature to the primary offense, petitioner’s punishment would be ten years under Article 62, V.A.P.C. (1925). It has been made to appear that petitioner has been incarcerated on this charge in excess of ten years and three months. His release from the Texas Department of Corrections is in order since he has served the maximum time. Cf. Ex parte Woodard, 541 S.W.2d 187 (Tex.Cr.App.1976).

The relief sought is granted and petitioner is ordered discharged from the conviction in this cause.

      . No motion for rehearing will be entertained.


author: ODOM, Judge.

text:
    Aubrey Eugene KOMURKE, Appellant, v. The STATE of Texas, Appellee.
    No. 53871.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 25, 1978.

      Ray A. Bass, III and Richard E. Wetzel, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Sam D. Adamo, Asst. Dist. Attys., Houston, for the State.
   OPINION

ODOM, Judge.

In a trial before the court appellant was convicted of sodomy under Art. 524, Vernon’s Ann.P.C. (1925). Appellant elected to have his punishment assessed under the new Penal Code, and the court, on proof of two prior felony convictions, assessed punishment at life imprisonment. V.T.C.A., Penal Code Sec. 12.42(d).

In a per curiam opinion delivered December 15, 1976, we affirmed this appeal because no brief was filed in the trial court as required by Article 40.09, Sec. 9, V.A.C.C.P., and our examination of the record disclosed no unassigned error requiring consideration in the interest of justice under Art. 40.09, Sec. 13, V.A.C.C.P. On May 24, 1977, pursuant to a writ of habeas corpus, appellant was granted an out of time appeal.

The record reflects that on the morning of January 19, 1973, while walking alone to school, the twelve year old complaining witness was approached by appellant who asked him if he knew a boy named “Jimmy.” He replied that he did not know Jimmy, but upon appellant’s promise to give him fifty cents, he agreed to go with appellant in appellant’s car and search for Jimmy. While driving around looking for Jimmy, appellant told the complainant that he had previously taken photographs of Jimmy and offered him money if he would allow appellant to photograph him. He agreed and appellant drove to a nearby service station. The two entered the station’s restroom and appellant photographed complainant. Appellant then fondled his penis and attempted an act of anal intercourse upon him but withdrew upon his complaint that “it was starting to hurt.” Appellant then performed an act of fellatio on him, and when he declined to reciprocate they left the restroom. Appellant paid him $2.00 and drove him to school. When he entered his classroom he started crying and told his teacher he was “sick.” His mother was notified and she arrived at the school to take her son home. He told her he had been “picked up” by a man but he did not fully disclose the details of the incident until later in the day. The Houston police were then notified. Appellant was initially linked to the crime through a license plate number registered to appellant’s stepfather’s automobile. The license number was given police by school officials who had instructed the school safety patrolmen to copy down the license number of any “suspicious” cars driving around the school area. Appellant was subsequently identified at trial by complainant as the man who, on the morning of January 19,1973, paid him $2.00 to engage in the behavior described above. Appellant was also identified by the service station attendant as the man he saw enter the station restroom with the complainant.

In his first and fourth grounds, appellant contends the evidence established that the prosecuting witness was an accomplice witness as a matter of law, and that his testimony was not sufficiently corroborated by other evidence. See Art. 38.14, V.A.C.C.P.

In McDonald v. State, Tex.Cr.App., 513 S.W.2d 44, the defendant appealed from a conviction for sodomy on a ten year old boy. In our opinion affirming the judgment, we quoted from Carnathan v. State, Tex.Cr.App., 478 S.W.2d 490, as follows:

“ ‘. . . [Ejven though the witness was an actor in the criminal transaction he is not regarded as an accomplice if he did not act knowingly or willingly, or if he was too young to be criminally responsible.’ ” 24 Tex.Jur.2d, Evidence, Sec. 690, p. 313 (Emphasis added.)

Article 30, Sec. 1, Vernon’s Ann.P.C., in effect at the date of the commission of this offense, provided:

“No person may be convicted of any offense except perjury, which was committed before he was 15 years of age; and for perjury only when it appears by proof that he had sufficient discretion to understand the nature and obligation of an oath.”

Under the provision of Art. 30, Sec. 1, supra, the twelve year old complaining witness in the instant case was “too young to be criminally responsible” for the offense of sodomy. Although in McDonald and Carnathan, supra, we declined to determine what effect the statutory amendment had on Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727, we will now do so. The trial facts in Slusser, as stated in the opinion, are:

“The record shows without dispute that the ten-year old boy willingly took part in and consented to the indecent acts of appellant.
“The [trial] court took cognizance of the uniform holdings of this court that one so consenting and acting is an accomplice under the law, and his testimony must therefore be corroborated. .
“But the charge clearly reveals that the court was' of the opinion that an exception to such rule exists in the case of a young boy between the ages of nine and thirteen years, by reason of the provisions of art. 30, P.C.
******
“Article 30, P.C., provides that no child between such ages is criminally responsible for any offense committed unless it shall appear that such child ‘had discretion sufficient to understand the nature and illegality of the act’
******
“In the course of the opinion [in Holmes v. State, 99 Tex.Cr.R. 298, 269 S.W. 96], however, the court said: ‘We pretermit discussion of the interesting question as to whether a boy between 9 and 13 years of age should be regarded as a victim or an accomplice, believing it too dangerous to lay down any hard and fast rule based on age, in the absence of statutory provision. . . .’” (Emphasis added.)

The Court in Slusser then proceeded after a discussion of several other cases to state the rule as to a child witness under Article 30, supra, as then in force:

“(1) Each case must be considered upon its own facts in determining whether the witness is to be considered a victim of the unlawful act of another or as a participant therein, and therefore an accomplice.
“(2) If inferences are to be indulged, the correct inference would be that a child over nine and under thirteen years of age possesses sufficient discretion and knowledge to be an accomplice.
“(3) If from the evidence, a question is raised as to whether the child between the ages of nine and thirteen years voluntarily participated in the criminal act, or as to whether such child, so participating, is possessed of sufficient discretion to know the act to be criminal, and to have the necessary criminal intent, such issue or issues should be submitted to the jury in order that the jury may, by resolving such issue, determine whether the witness is to be considered an accomplice witness.
“(4) If the record as a whole shows that the child witness has such discretion, and voluntarily participated in the unlawful act, then the testimony of the witness should be dealt with as that of an accomplice witness.” (Emphasis added.)

This rule in Slusser regarding a child between the ages of nine and thirteen was derived from and rested upon the statutory language of Art. 30, both as to the age range and as to the standard by which such a child is to be found an accomplice or not. In light of the changed language of Art. 30, supra, there was no longer an “absence of statutory provision” to support a “hard and fast rule” on the matter of whether the complainant was an accomplice witness. We hold that under the terms of Art. 30, supra, complainant was too young to be criminally responsible and was not an accomplice witness as a matter of law or fact, and therefore no corroboration of his testimony was required.

The first and fourth grounds of error are overruled.

In his second ground of error appellant asserts the service station attendant’s in-court identification of the appellant was tainted by an impermissibly suggestive pretrial photographic identification.

Service station employee Bob Love testified that on the morning of January 19, 1973, from a distance of about twelve feet he observed appellant and the complainant enter the station’s restroom. Love stated that because the station was robbed a lot he was watching appellant and complainant and “looked at them good enough to know them.” Approximately a week later the police showed Love two photographs, both of appellant, and told him, “This is the man we think was here that day.” Love tentatively identified appellant from the photographs as the man who entered the station restroom with complainant on January 19, 1973. Love positively identified appellant at trial. He testified that his identification of appellant was not based on the photographs and that he would have been able to identify appellant even if he had never seen the photographs.

We observed in Benson v. State, Tex.Cr.App., 487 S.W.2d 117:

“Even where the pre-trial identification procedure was impermissibly suggestive, the in-court testimony of the identification witness would still be admissible as long as the record clearly reveals that the witness’ prior observation of the accused was sufficient to serve as an independent origin for the in-court identification.”

Love’s testimony that he had an adequate opportunity to observe appellant at close range during daylight hours was sufficient to serve as an independent origin for the in-court identification. See, West v. State, Tex.Cr.App., 511 S.W.2d 502; Clay v. State, Tex.Cr.App., 518 S.W.2d 550. Ground of error two is overruled.

In ground of error three appellant asserts the court erred in admitting into evidence appellant’s incriminating oral statements made while in police custody. See Art. 38.22, V.A.C.C.P.

Houston police officer Cone, assigned to investigate the offense, testified that he was notified by local school authorities of the license number of a “suspicious” car seen driving around in the vicinity of complainant’s school. Cone checked the car’s registration and determined it was owned by John C. McKinney of 3020 Sagebrush in Houston. On January 22, 1973, he went to the Sagebrush address. When appellant answered the door, Cone recognized him as a past sexual offender. It is unclear from the record whether Cone advised appellant of his rights in accordance with “Miranda and Art. 38.22, V.A.C.C.P., before or after questioning him and obtaining his admission that although the suspect car was owned by his stepfather, appellant was the driver on the date of the offense. Assuming arguendo that appellant was in police custody when questioned and that his oral statements were inadmissible under the provisions of Art. 38.22, V.A.C.C.P., since this was a trial before the court, it is presumed the trial court disregarded any inadmissible evidence. Kimithi v. State, Tex.Cr.App., 546 S.W.2d 323. Ground of error three is overruled.

It is contended that the indictment is fatally defective because it fails to allege a culpable mental state as required under the new Penal Code, Sec. 6.02.

Because the offense was committed on January 19, 1973, the indictment charged appellant under Art. 524 of the 1925 Penal Code.

The new Penal Code, with certain exceptions not here applicable, applies only to offenses committed on or after its effective date. A criminal action for an offense committed before the Act’s effective date is governed by the law existing at the time of the offense. See Sec. 6(c) of the “Savings Provision” of the new Code. Appellant was correctly indicted and convicted under Art. 524, Vernon’s Ann.P.C., the law in effect at the time the offense was committed.

In his fifth ground of error appellant argues that the trial court erred in overruling his motion to have his punishment assessed under V.T.C.A., Penal Code Sec. 21.06, and thereby denied him due process of law.

Trial was on March 17, 1975, after the effective date of the new Code. Appellant elected to be punished under the provisions of the new Penal Code. See V.T.C.A., Penal Code, Savings Provision, Section 6(c); Johnson v. State, Tex.Cr.App., 548 S.W.2d 700; Bishoff v. State, Tex.Cr.App., 531 S.W.2d 346; Wright v. State, Tex.Civ.App., 527 S.W.2d 859. If the conduct under the former Penal Code for which appellant was convicted constituted a violation of more than one offense under the new Code, the court in assessing punishment determines from the evidence which offense under the new Code is applicable. Wright v. State, supra; Ambers v. State, Tex.Civ.App., 527 S.W.2d 855; Bishoff v. State, supra.

There is sufficient evidence that appellant, with intent to gratify his sexual desires, engaged in deviate sexual intercourse with a twelve year old boy. Such conduct constitutes the felony offense of Sexual Abuse of a Child under Sec. 21.10 of the new Penal Code. The provision relied on by appellant, Sec. 21.06, supra, the misdemeanor offense of Homosexual Conduct, provides, “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” Under the rule stated in Johnson v. State, supra, and Bishoff v. State, supra, the trial judge was not obligated to punish for the lesser offense since Sec. 21.10 prohibits the exact conduct engaged in by appellant in the instant case.

Appellant also contends he was denied due process by the procedure here employed and by this Court’s decision in Bishoff v. State, supra, in which the opinion on original submission was withdrawn. The due process arguments raised by appellant are without merit under the holding of this Court in Wright v. State, supra. Cf. Wright v. State, Tex.Civ.App., 527 S.W.2d 859, 867, opinion concurring in part and dissenting in part. Appellant’s argument that the changed disposition of Bishoff v. State, supra, violated the prohibition against ex post facto laws as applied to the trial of his case is likewise without merit. Although appellant’s trial was between rendition of our opinion on original submission and final disposition on motion for rehearing, the change in the construction of the Saving Provision of the 1974 Penal Code that occurred did not violate the prohibition against ex post facto laws. Cf. Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The opinion on original submission was never final and never was part of the jurisprudence of this State.

Ground of error number five is overruled.

Finally, appellant contends there was insufficient evidence for enhancement under V.T.C.A., Penal Code Sec. 12.42(d). That section requires the State to prove that the second previous felony conviction alleged was committed after the first previous conviction became final. Hickman v. State, Tex.Cr.App., 548 S.W.2d 736; Wiggins v. State, Tex.Cr.App., 539 S.W.2d 142.

The State introduced the judgment and sentence for the first prior conviction and the judgment for the second prior conviction alleged in the indictment for enhancement purposes. The first previous felony conviction was final on April 4, 1960. The second previous felony conviction was had on November 16, 1974. The record does not disclose when the second offense was committed or when the indictment for that offense was returned. Therefore, the State failed to prove that the first conviction was final when appellant committed the second offense and the trial court erred in enhancing the punishment under V.T.C.A., Penal Code Sec. 12.42(d). The State in its brief concedes this deficiency in the proof.

The error relates to punishment only and the court assessed punishment. Therefore, appellant’s life sentence is set aside and the cause remanded to the trial court for a hearing on the issue of punishment to be assessed by the court, at which time the State may attempt to properly prove up the prior convictions for enhancement purposes. Tyra v. State, Tex.Cr.App., 534 S.W.2d 695.

The judgment of conviction is affirmed, the punishment is set aside, and the cause is remanded for a new punishment hearing before the trial court.

      . This article was repealed by the new Penal Code, effective January 1, 1974. See now V.T. C.A., Penal Code Sec. 8.07.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.