author: SPEARS, Justice.

text:
    Roger H. STONER, Petitioner, v. Joe Glenn THOMPSON et al., Respondents.
    No. B-8005.
    Supreme Court of Texas.
    March 14, 1979.
    Rehearing Denied April 11, 1979.

      Horkin & Horkin, Patrick J. Horkin, Jr., Corpus Christi, for petitioner.
    Andrews, Kurth, Campbell & Jones, Hall E. Timanus, Houston, Pulbright & Jawor-ski, Simeon Lake, Houston, for respondents.
   SPEARS, Justice.

Petitioner, Roger Stoner, appeals from a judgment against him granting injunctive relief, declaratory relief and money damages to Texas Media, Inc. and Arnold and Audrey Malkan, intervenors and respondents herein. The judgment was entered on their interventions and counterclaim after Stoner, the original plaintiff, had taken a nonsuit and refused to participate in the trial on the merits. Stoner contends there were no pleadings to support the judgment given. The Court of Civil Appeals has disagreed and affirmed the trial court. 570 S.W.2d 511. We affirm except as to money damages awarded Texas Media, Inc.

The factual background and chronology of events is fully set out in the opinion of the Court of Civil Appeals. We will only recite here such facts as are necessary to decide the sufficiency of pleadings question.

Stoner filed the original suit in Harris County District Court on September 2,1976, against Joe Glenn Thompson, seeking an injunction and specific performance.

The Malkans intervened on September 13, asking that injunctive relief sought by Stoner be denied and on September 29 filed a counterclaim for money damages, charging that Stoner interfered with their contractual relations. On November 10, the Malkans filed a supplemental petition in intervention asking for injunctive relief against Stoner. Texas Media intervened on October 8, asking for a declaratory judgment as to its rights and liabilities, and on November 29, filed an application seeking a restraining order, temporary injunction and permanent injunction against Stoner. Stoner filed answers to these pleadings.

On February 17, 1977, Stoner moved to nonsuit without prejudice his causes of action on file. The order of the trial court granting the motion provided that “nothing herein shall be prejudicial to any of the pleadings or rights asserted by the other parties [seeking relief] herein.”

On June 13, the trial court granted a motion for preferential setting filed by the Malkans and set the case for trial on July 11. Stoner’s motion and supplemental motion to set aside this order were denied after a hearing on July 8. On the morning of trial, July 11, Stoner’s attorney, Mr. Hor-kin, appeared and urged a “special appearance,” citing Rule 120a. Stoner was not present. After the trial court overruled the “special appearance,” counsel for Stoner announced to the court that he represented Stoner solely for the purpose of making a special appearance and was not authorized to proceed further on his client’s behalf. The Statement of Facts reflects the following:

“MR. HORKIN: Thank you, Your Honor. We decline to proceed further, Your Honor.
“THE COURT: That is your privilege to make that election. The Court says that you are here, and you say that you are leaving, so good day.
“MR. HORKIN. Thank you.
“(Reporter’s Note: Mr. Horkin retiring from the courtroom.)”

After a brief recess, the Malkans were granted leave to file a trial amendment asking for declaratory judgment relief under Art. 2524-1, and trial without a jury began. Evidence was then presented to the trial court by the Malkans and Texas Media with the resulting judgment in their favor.

The judgment of the trial court granted all of the relief sought by the interventions and counterclaims of Texas Media and the Malkans, and in addition, granted the following relief not asked for in pleadings at the time Mr. Horkin left the courtroom: (1) that Texas Media, Inc. recover $50,000.00 from Stoner, and (2) declaratory judgment relief for the Malkans, declaring their contract to purchase the stock in Texas Media binding and legally enforceable. Stoner complains, inter alia, of both of these awards by the trial court as without pleadings to support them. All relief granted by the judgment of the trial court was supported by the evidence adduced.

The broad question presented is to what extent can a trial court grant relief to the petitioning parties on their pleadings where the opposing party, who has answered, fails to appear for trial or, as here, quits the trial.

The parties here differ as to what type of judgment was entered under the circumstances by the trial court. Stoner contends it was a judgment nihil dicit or a Rule 239 default judgment; Texas Media and the Malkans say it was a judgment pursuant to a trial on the merits. Some courts, under the circumstances here, would describe it as a judgment nihil dicit. Evans v. McNeill, 41 S.W.2d 268 (Tex.Civ.App.1931, writ dism’d); Gomperts v. Wendeborn, 427 S.W.2d 904 (Tex.Civ.App.1968, no writ). Others would term it a judgment upon trial. Webb v. Reynolds, 207 S.W. 914 (Tex.Comm’n App.1919, judgmt. adopted); Kirkman v. Alexander, 280 S.W.2d 365 (Tex.Civ.App.1955, writ ref’d n. r. e.); Hall v. C-F Employees Credit Union, 536 S.W.2d 266 (Tex.Civ.App.1976, no writ).

The judgment in this case was neither a no-answer default judgment, nor a judgment nihil dicit. Frymire Engineering Company, Inc. v. Grantham, 524 S.W.2d 680 (Tex.1975); Otten v. Snowden, 550 S.W.2d 758 (Tex.Civ.App.1977, no writ). Nor was it a judgment upon trial; this Court has said it was a form of “judgment by default,” a post-answer default judgment. Mullen v. Roberts, 423 S.W.2d 576, 579 (Tex.1968), citing Continental Oil and Gas Production Co. v. Austin, 17 S.W.2d 1114 (Tex.Civ.App.1926, no writ).

While there is a difference between a no-answer default judgment and a judgment nihil dicit, the general rule is that the two are so similar that the same rules apply to each with respect to the effect and validity of the judgment. Storey v. Nichols, 22 Tex. 87 (1858); see 49 C.J.S. Judgments § 187 at 325 (1947); Pohl and Kirlin, Judgments By Default—A Survey of Texas Law, 31 Sw.L.J. 465 (1977). In both instances, it is said that the non-answering party has “admitted” the facts properly pled and the justice of the opponent’s claim, although a judgment nihil dicit carries an even stronger confession than the default judgment. Storey v. Nichols, supra; Texas Quarries v. Pierce, 244 S.W.2d 571 (Tex.Civ.App.1951, no writ). In one respect, both the no-answer default judgment and the judgment nihil dicit differ from a post-answer default judgment where an answer is on file but defendant fails to appear at the trial. A post-answer “default” constitutes neither an abandonment of defendant’s answer nor an implied confession of any issues thus joined by the defendant’s answer. Judgment cannot be entered on the pleadings, but the plaintiff in such a case must offer evidence and prove his case as in a judgment upon a trial. Frymire Engineering Company, Inc. v. Grantham, supra.

A judgment must be based upon pleadings, and as this Court has stated, “[A] plaintiff may not sustain a favorable judgment on an unpleaded cause of action, in the absence of trial by consent . . . .” Oil Field Haulers Association, Inc. v. Railroad Commission, 381 S.W.2d 183, 191 (Tex. 1964). In determining whether a cause of action was pled, plaintiff’s pleadings must be adequate for the court to be able, from an examination of the plaintiff’s pleadings alone, to ascertain with reasonable certainty and without resorting to information ali-unde the elements of plaintiff’s cause of action and the relief sought with sufficient information upon which to base a judgment. C & H Transportation Company v. Wright, 396 S.W.2d 443 (Tex.Civ.App.1965, writ ref’d n. r. e.). Mere formalities, minor defects and technical insufficiencies will not invalidate a default judgment where the petition states a cause of action and gives “fair notice” to the opposing party of the relief sought. Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958).

The principle that a plaintiff will not be permitted to obtain relief on a cause of action which is not contained in pleadings of which the defendant can be said to have “fair notice” has been consistently applied by Texas courts to all three types of “default” judgments: (1) a default judgment as defined by Rule 239, where no answer has been filed, Edwards Feed Mill v. Johnson, supra; Weatherford v. Van Alstyne, 22 Tex. 22 (1858); (2) a judgment nihil dicit, where no answer placing the merits of the case in issue is on file, Goodlett v. Stamps, 29 Tex. 121 (1867); Storey v. Nichols, supra; O’Quinn v. Tate, 187 S.W.2d 241 (Tex.Civ.App.1945, writ ref’d); Spivey v. Saner-Ragley Lumber Co., 284 S.W. 210 (Tex.Comm’n App.1926, judgmt. adopted); and (3) a post-answer “default” judgment where a defendant has answered but fails to appear for trial, Mullen v. Roberts, 423 S.W.2d 576, 579 (Tex.1968); City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (Tex.Comm’n App.1937, opinion adopted). The controlling principle has been correctly summarized:

“The rules expressly countenance more general allegations than formerly were permitted, and the default judgment will stand if the plaintiff has alleged a claim upon which the substantive law will give relief, and has done so with sufficient particularity to give fair notice to the defendant of the basis of his complaint, even though he has stated some element or elements in the form of legal conclusions which will need to be revised if attacked by special exceptions.” 4 McDonald, Texas Civil Practice § 17.23.3 at 120 (1971).

In Mullen the defendant filed a general denial, but his attorney thereafter withdrew with leave of the court. On the day of trial neither the defendant nor any attorney representing him appeared, and a “default” judgment was entered against him. After stating the rule that “both a default judgment and a judgment nihil dicit must accord with the pleadings,” this Court labeled the judgment granted plaintiffs by the trial court as a form of “judgment by default.” We held that since the judgment was at variance with the plaintiffs’ petition in that it granted relief not sought by those pleadings, it could not be sustained.

In Gause, a default judgment was entered for one interpleader defendant against another. The trial judge was unaware at the time, because of the clerk’s error, that the other defendant had also filed an answer. The court adjudicated the title to certain real property even though no pleadings put title at issue, but this was held to be error on appeal because of the absence of adequate pleadings.

In the instant case, Stoner, at the time his attorney quit the courtroom, had answers on file to the pleadings of both Texas Media and the Malkans. Texas Media had pled for (1) a declaratory judgment, fixing and declaring its rights with regard to the Malkans, Stoner, and changing its own corporate structure, and (2) injunctive relief to force Stoner to turn over physical possession and control of the radio station KZFM and its books and records to Texas Media. Stoner assails the action of the trial court in granting Texas Media a $50,000.00 judgment for damages as being without support in the pleadings. There is no mention in the pleadings of Texas Media that it sustained money damages and there was no prayer therefor. Under these circumstances, it cannot be said that a party such as Stoner had “fair notice” that the trial court might award money damages against him in favor of Texas Media upon a trial. Nor will the inclusion in the prayer of the phrase “and for such other and further relief to which plaintiff (or cross-plaintiff, intervenor, etc.) may show himself entitled” enlarge a pleading to the extent that it embraces an entirely different cause of action for which fair notice does not exist.

Stoner next complains by point of error that the declaratory relief given the Mal-kans was not alleged or prayed for in their pleadings. The Malkans, when Stoner’s attorney left the trial, had pleadings that (1) prayed that the court deny Stoner’s requested injunction to enjoin another defendant, Thompson, from consummating the sale of his stock in Texas Media to the Malkans, the Malkans alleging that they had a valid, binding contract with Thompson for such sale; (2) sought damages of Stoner for $100,000.00 for tortious interference with their contract with Thompson; and (3) sought injunctive relief against Stoner to prohibit him from interfering with their asserted rights to inspect the business, its premises, books and records, under their contract.

The Malkans argue that their trial amendment asking for declaratory relief and filed shortly after Stoner’s attorney quit the trial was properly allowed and thus supplied the necessary basis in the pleadings for the declaratory relief in the judgment. If the trial amendment had asserted a new or different cause of action of which Stoner did not have fair notice, it would not support a judgment based upon that new or different cause of action. In this case, however, we hold that apart from the trial amendment, Stoner had fair notice of this declaratory relief by the pleadings of the Malkans on file in the case. The Malkans had made the same contention in all three of their prior pleadings that they made in their trial amendment, i. e., that they had a valid contract with Thompson to buy the majority stock interest in Texas Media. Stoner was charged with notice of all pleadings that had been filed and served on him or his attorney prior to their withdrawal. A determination of the question of the validity of the Malkans’ contract to buy the stock had to be made before the trial court could have granted the Malkans relief under any of their prior pleadings. Stoner cannot now say that he did not have fair notice that such declaration of validity or invalidity was going to be made upon a trial. Edwards Feed Mill v. Johnson, supra; Chokas v. Donald, 439 S.W.2d 870 (Tex.Civ.App.1969, no writ).

Texas Media and the Malkans both argue that when Stoner quit the trial, he waived all his rights to complain about their pleadings. They contend that under Rule 90, providing that pleading defects are waived when not brought to the attention of the trial court before judgment, and Rule 67, providing that issues not raised by the pleadings can be tried by implied consent, Stoner has waived any and all defects in the pleadings. They cite Willeford v. Walker, 499 S.W.2d 190 (Tex.Civ.App.1973, no writ); however, that case has no application here. There the party complaining was present during the trial and did participate. He was under those circumstances found to have waived his complaint about the pleadings and tried the unpled issue by implied consent. See also J. D. Abrams, Inc. v. Sebastian, 570 S.W.2d 81, 84 (Tex.Civ.App.1978, writ ref’d n. r. e.).

The specific terms of Rule 90 exempt its application to default judgments, and this Court has so held. Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58 (1952). In view of our holding that in measuring the sufficiency of pleadings to support a judgment a post-answer default is treated the same as a no-answer default judgment and a judgment nihil dicit, it follows that Rule 90 does not apply to a post-answer default judgment. A default judgment admits facts which are properly alleged. Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.1967, writ ref’d n. r. e.); 4 McDonald, Texas Civil Practice 119 § 17.-23.3 (1971). While a petition which serves as the basis for a default judgment may be objectionable under Rule 90, the default judgment will be held erroneous only if (1) the petition (or other pleading of the non-defaulting party that seeks affirmative relief) does not attempt to state a cause of action that is within the jurisdiction of the court, or (2) the petition (or pleading for affirmative relief) does not give fair notice to the defendant of the claim asserted, or (3) the petition affirmatively discloses the invalidity of such claim. Likewise, an absent party will not be considered to have tried an unpled cause of action by implied consent under Rule 67 where fair notice of that cause of action is not in the pleadings. Edwards Feed Mill v. Johnson, supra; Weatherford v. Van Alstyne, supra; City of Fort Worth v. Gause, supra; Spivey v. Saner-Ragley Lumber Co., supra; C & H Transportation Company v. Wright, supra.

The judgment of the Court of Civil Appeals is reformed to eliminate the award of $50,000.00 damages to Texas Media, Rule 501; the remainder of the judgment is affirmed.

      . All references to rules are to the Texas Rules of Civil Procedure; all references to statutes are to Texas Revised Civil Statutes Annotated.


source: Caselaw Access Project

author: PHILLIPS, Judge. VOLLERS, Judge, TOM G. DAVIS, Judge. PHILLIPS, Judge, CLINTON, Judge,

license: Public Domain

text:
    Yancy Leroy BRITTON, Appellant, v. The STATE of Texas, Appellee.
    No. 56680.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.
    On Rehearing March 21, 1979.
    Rehearing En Banc Denied April 11, 1979.
    Charles Shavers, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, John W. Booth and Jan Potts, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

Appellant was convicted of heroin possession. Article 4476-15, Sec. 4.04(a), V.A.C.S. Punishment was assessed at life imprisonment. Article 4476-15, See. 4.04(b)(1), V.A. C.S.; V.T.C.A., Penal Code, Sec. 12.42(d).

Appellant was a passenger in a vehicle observed by two Dallas police officers to be blocking the two west-bound lanes of a Dallas street at 1:50 a. m. The car did not move until after the police pulled up and turned their lights on. Appellant was observed as bobbing, weaving, or swaying his head. Upon one officer’s inquiry, appellant mumbled incoherent responses. Appellant was further observed to have “glassy” and bloodshot eyes. The officer asked appellant to exit the vehicle at which time the officer arrested appellant for public intoxication. The officer then frisked the appellant, finding a syringe containing fresh, milky white residue in his front coat pocket. Appellant denied being a diabetic to the officer. Upon resuming the pat-down, appellant reached for his pocket. The officer removed appellant’s hand and withdrew a matchbox from appellant’s pants pocket in which 12 pink capsules, later found to contain heroin, were found.

Appellant and his counsel on appeal contend that the héroin was the fruit of an illegal search and seizure.

The officers were justified in stopping the vehicle in which appellant was a passenger. The officers testified that its position in the road impeded their patrol car and any other west-bound traffic and that such impedance violated a Dallas municipal city ordinance. See also Article 6701d, Secs. 93-94, 153, Y.A.C.S.; Slaughter v. State, Tex.Cr.App., 439 S.W.2d 836; Thompson v. State, Tex.Cr.App., 398 S.W.2d 942. The officer who arrested appellant was legitimately in a position to observe the facts upon which he based his conclusion that probable cause existed to arrest the appellant for public intoxication. Public intoxication is a Class C misdemeanor. Article 14.01(b), V.A.C.C.P., provides that “a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.” This Court has held that:

“Probable cause for an arrest exists where, at that moment, the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime.” Brown v. State, Tex.Cr.App., 481 S.W.2d 106.

It was footnoted in this case that the facts available to the officer which might constitute probable cause to arrest need not be “sufficient evidence to establish guilt” (481 S.W.2d 106 at 110). One of the essential elements to the offense of public intoxication is intoxication “to the extent that he may endanger himself or another.” See Dickey v. State, Tex.Cr.App., 552 S.W.2d 467. Citing Balli v. State, Tex.Cr.App., 530 S.W.2d 123, and Bentley v. State, Tex.Cr. App., 535 S.W.2d 651, the Court in Dickey indicated that considerable weight was to be accorded the circumstances in which the individual was found by the police officers in determining whether his state of intoxication was “to the extent that he may endanger himself or another.” In Balli the defendant was found walking in the middle of a public street while intoxicated. In Bentley it appeared the defendant was attempting to purchase tire chains for his automobile, thereby indicating his intended purpose to drive an automobile while intoxicated. In Dickey the discovery of the appellant asleep in a car in front of a lounge demonstrated that the appellant was “vulnerable to an assortment of difficulties,” including the possibility of driving the vehicle himself.

In the instant case, the arresting officer testified to the following observations made by him.

“Q Did you notice anything unusual about the passenger of the vehicle?
“A Yes, well, while going back to the rear of the vehicle I had a pretty clear view of the passenger as I was sitting there, his head was bobbing and weaving back and forth.
* * * * * *
“Q Did you have the opportunity to look inside the vehicle?
“A Yes I did.
* * * * * *
“Q Were you able to observe the defendant’s eyes?
“A Yes, sir, I was.
“Q Was anything unusual about that?
“A They appeared to be glassy and bloodshot.
“Q Did you ask the defendant any questions?
“A Yes, I did.
“Q What?
“A First, I asked him how he was doing.
“Q How did he respond to that?
“A He mumbled something that was incoherent — I couldn’t understand it.
“Q Did you ask him another question?
“A Yes, I did, and at that time I asked them what they were doing there, or what they were doing, and he still continued to mumble something I couldn’t understand.
“Q Did you have — having asked these questions, and gotten these responses, and having observed his eyes and head move in the manner in which you described it, did you have any suspicions about whether or not the man was normal or abnormal, or intoxicated or not?
“A I believe that he was intoxicated.
“Q Of course, this was in a public place?
“A Yes, sir, it was.
“Q Well, did you ask the defendant to step out of the vehicle?
“A Yes, sir, I did.”

The police officer then asked the defendant for identification which he was unable to produce for the officer.

“Q Did you next conduct a pat-down frisk of the defendant?
“A Yes, sir, I did.
“Q What was your reason for doing this?
“A It was for my sake, and my partner’s safety.”

It was at this point that the officer discovered the syringe and heroin within the matchbox within his pocket. The officer testified that after he had felt the bulge of the syringe in the appellant’s pocket he thought it might possibly be a knife and that his and his partner’s safety might be in danger. The officer further testified that he would not have let the appellant go had he wanted to when he removed him from the vehicle.

On cross-examination, the police officer testified that he did not smell any alcoholic beverage on the appellant’s breath. He further testified that he did not file a charge for public intoxication against the appellant. It is clear from the officer’s testimony that given the facts observed by him, he lacked the probable cause to arrest appellant for the offense of public intoxication. No facts or information was provided by the police officer to indicate any basis for a reasonable inference that the appellant’s suspected intoxication was to a degree that would endanger himself or others. It must be remembered that appellant was a passenger in a vehicle driven by another individual which this testimony shows was not arrested for any offense at that time. There being no probable cause to lawfully arrest appellant without a warrant, the search of appellant’s person cannot be justified as a search incident to lawful arrest. Cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

However, this finding does not terminate the inquiry required of this Court. As stated above, the initial stop of the vehicle in which appellant was a passenger was justified. However, in determining whether the pat-down frisk of appellant was reasonable and justified, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken [pat-down frisk for weapons] was appropriate?” Terry v. Ohio, 392 U.S. 1 at 21-22, 88 S.Ct. 1868 at 1880, 20 L.Ed.2d 889.

“Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U.S. at 24-25, 88 S.Ct. at 1881-82.
* * * * * *
“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
* * * * * *
“And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

It is abundantly clear from the record before us that the officer’s suspicion that appellant was intoxicated was based on the fact of observing the bobbing, weaving, or swaying of his head while within the vehicle and the appellant’s mumbled responses to questions from the police officer. The officer also observed that the appellant had glassy and bloodshot eyes. We cannot conclude that these facts provide a reasonable basis for the inference by the police officer that the appellant was armed or posed a present danger to the officer or his partner. The police officer’s conclusory statement that the frisk was for the sake of his and his partner’s safety fails to satisfy the mandate of Terry v. Ohio, supra. The officer provided no facts upon which a reasonably prudent man could conclude that the appellant was armed or posed a danger to the police officers. See Keah v. State, Tex.Cr.App., 508 S.W.2d 836; Wimberly v. State, Tex.Cr.App., 434 S.W.2d 857; Tardiff v. State, Tex.Cr.App., 548 S.W.2d 380; Crawford v. State, Tex.Cr.App., 544 S.W.2d 163; Ablon v. State, Tex.Cr.App., 537 S.W.2d 267.

In light of the foregoing, we find that the search of appellant which resulted in the discovery of a matchbox containing heroin capsules was not justified under the facts and circumstances established in this record. The search being in violation of the Fourth Amendment to the United States Constitution and Article I, Sec. 9, of the Texas Constitution, the evidence was inadmissible in the trial of the appellant. Appellant’s ground of error alleging an illegal search and seizure is hereby sustained.

The judgment is reversed and the cause remanded.

VOLLERS, Judge,

dissenting.

It appears that the majority is placing an interpretation upon the offense of public intoxication that is simply not warranted. Section 42.08, Y.A.P.C. provides:

“(a) an individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.”

It appears that the majority is qualifying this to mean that he must not only be intoxicated to the degree required, but that it be under circumstances wherein he is likely to endanger himself or another. This is simply not provided in the statute. The statute merely requires the intoxication to be to the degree that he may endanger himself or another.

The evidence set forth in the majority opinion clearly shows that appellant was very intoxicated and this evidence is certainly sufficient to show probable cause for the officer to arrest him for the offense of public intoxication. Since there was probable cause to arrest for a violation of Section 42.08, V.A.P.C. the officer properly took appellant into custody and the following search of the person was a lawful search incident to a lawful arrest. The contraband which was introduced in evidence in this case was lawfully seized and properly introduced in evidence. This conviction should be affirmed.

I dissent.

Before the court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

On original submission the panel reversed this case, relying on Dickey v. State, 552 S.W.2d 467 (Tex.Cr.App.); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.), and Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.), insofar as these cases related to the essential elements of public intoxication. The panel relied on these cases to determine whether the appellant was shown to have been intoxicated “to the degree that he may endanger himself or another.”

It must be borne in mind that we are here faced with the question of proof necessary to establish probable cause for arrest rather than proof essential to a judicial determination of guilt. The test of probable cause for an arrest without a warrant as stated by the United States Supreme Court in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, is:

“Whether at that moment the facts and circumstances within the officer’s knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.”

Thus, when an officer is confronted with a person intoxicated in a public place, his determination as to possible danger that may befall the individual is not reviewed under the same standard used in a judicial determination of guilt.

In the instant case, the appellant was first observed at 1:50 a. m. sitting as a passenger in a car blocking both westbound lanes of Ross Avenue in Dallas. The car did not move through a changing of the traffic light while the appellant appeared to be conversing with a young woman standing on the corner. Only when the patrol ear turned on its red lights was the car driven to the curb.

The driver got out of the vehicle and talked with the other officer while the arresting officer approached the passenger side of the car. He had observed that the appellant’s head was bobbing and weaving back and forth. The officer noticed that appellant’s eyes were bloodshot and glassy. The appellant was unable to respond to questions from the officer, only mumbling incoherently.

The appellant stepped out of the car at the officer’s request. When asked for identification, the appellant fumbled around, patted his pocket, and finally stated that he had no identification. The officer arrested appellant and a search incident thereto resulted in the officer finding heroin in the appellant’s pocket.

The appéllant was in a public place and the officer observed sufficient characteristics to support his belief that the appellant was intoxicated. This is not an arrest of an intoxicated person who was merely a passenger in a vehicle under ordinary circumstances, but rather an intoxicated person who was sitting in a car that had blocked two lanes of traffic and failed to move through a change of the traffic lights. Even though appellant was not the driver of the vehicle, the officer could have reasonably concluded that appellant was placed in a position of danger by sitting in a car blocking two lanes of traffic. It is reasonable to assume that had appellant not been intoxicated he would have urged the driver to correct the situation or removed himself from the vehicle. It would appear that the potential for danger to this appellant was as great as that of the defendant in Balli v. State, supra, who was walking down the middle of a vacant public street in Plain-view after dark. To determine the sufficiency of the evidence to establish the offense of public intoxication, this Court in Balli, Dickey, and Bentley looked to potential danger rather than present danger to the accused or others.

The officer’s observations of the appellant were sufficient to support a conclusion that appellant was intoxicated. This, coupled with his view of appellant’s position of peril as a passenger in a vehicle blocking two lanes of traffic on Ross Avenue in Dallas, was sufficient to warrant a prudent man in believing that appellant was committing an offense. There was probable cause for the officer to arrest appellant. No error is shown in the admission into evidence of the heroin seized in the search of appellant incident to such arrest.

The contentions advanced by appellant in a pro se brief have been reviewed and found to be without merit.

The State’s motion for rehearing is granted and the judgment is affirmed.

PHILLIPS, Judge,

dissenting.

The majority misconstrues the original panel opinion as having placed an unjustified and stringent standard on the discretion of peace officers to make an arrest. Reliance was had on this Court’s opinions in Dickey v. State, 552 S.W.2d 467 (Tex.Cr.App.); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.); and Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.), in order to make clear what the elements of the offense of public intoxication were. That offense consists of more than mere intoxication in a public place. It requires extreme intoxication and public presence under circumstances that indicate a danger to self or others. The question presented in this search and seizure issue was whether the police officer had a reasonable and rational basis for making an arrest for that offense.

The facts showed appellant was a passenger in a vehicle which was stopped improperly on a public street. However, when the officer made his observations and arrested appellant, the vehicle was safely curbed. Further, the driver of the offending vehicle was not arrested, which did not hinder appellant’s safe passage to wherever he was journeying. Finally, there was no testimony that appellant appeared in danger or as a threat to the security of others. The majority relies heavily on a new legal duty for passengers to correct a driver’s errors or exit.

To be frank, this arrest appears to be a pretext to permit a further exploratory pat-down or search. Once the traffic violation was cured and the decision made to release the driver, the police had no business rousting the passenger.

The liberal construction placed on the probable cause required for an arrest for public intoxication effectively resurrects the former vagrancy statutes which had been ruled unconstitutional. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Our citizens who imbibe are now subject to erratic and capricious interference from peace officers, notwithstanding hitherto respected constitutional protections (see Amendment IV, U.S. Constitution; Article I, Section 9, Texas Constitution) and a legislative effort to establish objective standards for law enforcement (see V.T.C.A., Penal Code, Section 42.01).

I adhere to my original opinion and incorporate it by reference herein as further reason to dissent.

CLINTON, Judge,

dissenting.

Because the majority opinion creates a situation that permits Fourth Amendment rights of one citizen to be cancelled by offending conduct of another, I must dissent and protest against stripping a citizen of one of the few remaining vestiges of reasonable expectation of personal privacy while riding with another in a motor vehicle.

I take it from what is stated, as well as what is implied, by the majority opinion that a passenger who may very well be intoxicated is nevertheless not intoxicated “to the degree that he may endanger himself or another” so long as the driver operates the motor vehicle in a manner that does not arouse the sensibilities of a peace officer. If that premise is valid, then I simply cannot accept the notion that the degree of intoxication reaches a “zone of endanger” merely on account of misconduct on the part of the driver that, according to the majority, the passenger must undertake to correct or, failing that, alight from the motor vehicle.

The suggested alternatives not only defy common experience shared by nearly every passenger at one time or another but also presume that somehow, the arresting officer in this case divined that appellant had come to appreciate the dangerous condition created by his driver — while he was otherwise occupied in conversing with a young woman standing on a corner — and had not taken what the majority sees as exculpatory precautions.

The justification attributed to the searching officer by the majority thus does not pass the settled test of probable cause it insists must be “borne in mind.” That is, that facts and circumstances “within the officer’s knowledge” must be sufficient to warrant a reasonable belief that appellant had committed or was committing the offense of public intoxication — that he was intoxicated to the degree that he may endanger himself or another. In that brief moment while the motor vehicle did not move through a change of lights the officer could hardly have it in his knowledge that appellant understood any danger now perceived by the majority and failed to initiate corrective action. Indeed, the searching officer had no knowledge whatsoever that appellant was even intoxicated until he accosted appellant sitting in the passenger seat of the motor vehicle. Having observed that appellant appeared to have been conversing with the young woman on the corner before he evaluated appellant, the officer had to know that appellant was focusing his attention on the young woman and not on how the driver was maneuvering his vehicle. To provide the searching officer with “knowledge” that “had appellant not been intoxicated he would have urged the driver to correct the situation or remove himself from the vehicle” is but an exercise in hindsight that should not be given retroactive effect.

The consequences of the majority opinion are obvious and far reaching in the jeopardy they presage for Fourth Amendment protections to the mobile citizen.

First, the privacy of the passenger is denied by what is done today on account of misconduct of his driver. Next, because the Court has held that a motor vehicle may be searched for evidence of the cause of intoxication, or for presence of weapons, the privacy of the driver who has done nothing to earn himself so much as a traffic ticket is eroded by what is done today and will be denied by what must surely follow tomorrow.

ONION and ROBERTS, JJ., join in this dissent.

      . The foregoing answers the question left unanswered in Wood v. State, Tex.Cr.App., 515 S.W.2d 300.

      . Parker v. State, 576 S.W.2d 613 (Tex.Cr.App.1979); see generally Taylor v. State, 421 S.W.2d 403, 407 (Tex.Cr.App.1967).

      . Compare Wood v. State, 515 S.W.2d 300, 306-307 (Tex.Cr.App.1974).


author: WILLIAM J. CORNELIUS, Commissioner.

text:
    Shirley Mae THOMAS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55472-55474.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 17, 1979.
    Rehearing En Banc Denied April 11, 1979.

      Steven G. Condos, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, Norman Kinne and Brady W. Sparks, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

WILLIAM J. CORNELIUS, Commissioner.

Appellant was convicted of one charge of murder and two charges of attempted murder. By agreement all three cases were tried together before the same jury. Punishment was set by the jury at fifty years’ confinement in the murder case, and fifteen years’ confinement in each of the attempted murder cases.

The State’s version of the facts was as follows: On December 30, 1975, Michael Robertson, David Whitaker, Randy Marlowe and Alan Shope came to Dallas from Georgia to attend the annual Cotton Bowl game. On Wednesday, December 31, two of the young men met appellant at a bar in downtown Dallas. Appellant propositioned them about having sexual relations with her but the men said they had no money. Nevertheless, after some discussion they took her to their motel. A well-dressed black man was waiting outside and came to the men’s motel door on one occasion to inquire if they were having a party. At one point the appellant told the men she was not going to stay around there and “mess with them” anymore, but that she was going to make some money. The men offered to take her back to town but she refused and left the motel. Shope and Robertson then went back to the downtown hotel near the bar and parked. Marlowe then joined them. Shortly afterward, appellant again appeared and indicated that she had changed her mind and wanted to go back to the motel with the men. They returned to the motel where they again saw the black man who had previously come to their door. Whitaker subsequently joined them. Appellant persuaded the men to disrobe and get on the bed. She then disrobed, and after going over to the radio and turning the music up very loud she went into the bathroom. When she came out, she reached into her purse, pulled out a .22 caliber pistol and started shooting. The first shot struck Alan Shope in the left side just above the belt. The second and fatal bullet hit Randy Marlowe in the lower chest. As Shope attempted to stand up he was shot again in the arm. The fourth shot hit Robertson in the right thigh and the last shot hit Robertson in the head as he attempted to disarm the appellant. After Robertson disarmed appellant, he saw her run outside to the parking lot and get into a waiting automobile. In addition to testimony from Robertson, Shope and Whitaker, the State produced several other witnesses, including a bartender who testified that one of the victims was in his lounge most of the afternoon on the day before the shooting.

Appellant took the stand and testified that she lived in Houston, and that she was abducted and kidnapped in Houston by Shope, Robertson, Whitaker and Marlowe and forcibly taken to Dallas. She testified that on the way to Dallas, as well as after their arrival, the four men were taking narcotics and that they raped her and forced her to commit sodomy. She further said that the victims had threatened to kill her and that she started shooting only to escape from the motel room where she was being held captive, and that she did not intend to kill anyone. After the shooting she ran outside where she met a black man, who was a stranger to her, and when she told him what happened he took her first to his daughter’s home in Dallas where he got her some clothes and then he drove her to Houston.

The sufficiency of the evidence is not challenged, but appellant presents sixteen grounds of error which she maintains require a reversal of the convictions.

The first nine grounds of error relate to various side-bar remarks of the prosecutor and comments made in his jury summation. The first complaint concerns the following comment during the prosecutor’s argument at the punishment phase of the trial:

“You were called upon to assess a sentence, a sentence in the Texas Department of Corrections, and I think I am — I think I am being fair with you when I say that whatever your sentences may be, when they leave this trial court, she will have been sentenced; those sentences will have been sentenced by the judge to run concurrently .

Appellant’s objection was sustained and the jury was instructed not to consider the remark, but a motion for mistrial was denied.

Ordinarily, any injury from an improper jury argument by a prosecutor is obviated when an objection thereto is sustained and the jury is instructed to disregard the argument. Unless the remarks are so inflammatory that their prejudicial effect cannot reasonably be removed by such an admonition, a reversal of the conviction is not required. Carraway v. State, 507 S.W.2d 761 (Tex.Cr.App.1974); Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App.1973). The rule has been applied to improper argument at the punishment stage of the trial which inferred that the accused would not actually be required to serve the length of time specified in the sentence. See Bradley v. State, 489 S.W.2d 896 (Tex.Cr.App.1973); Gray v. State, 477 S.W.2d 635 (Tex.Cr.App.1972); and Lenzi v. State, 456 S.W.2d 99 (Tex.Cr.App.1970). The comment should not have been made, but we hold the error was rendered harmless by the sustaining of the objection and the court’s instruction.

Also assigned as error is the following remark of the prosecutor during cross-examination of appellant:

“Q Now, you were clear on the other side of the room. You mean that he grabbed you over here behind this bed and pushed you all the way over to the door?
A He caught me around my arm and pushed me over by the door, and took the pistol . .
Q Came over here and pushed you?
A And he took the pistol from out of my hand, and I got up and grabbed ahold of the door and ran on out the door.
Q I understand what your practiced testimony is; I am trying to ask you some questions, if you will just try to answer those.”

Appellant’s objection to the comment about “practiced testimony” was sustained and the jury was admonished to disregard it, but a motion for mistrial was denied.

Any error in making an improper remark or asking an improper question will usually be cured or rendered harmless by the sustaining of an objection thereto and instructing the jury to disregard it. Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977); Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971); White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969). The record here reflects that appellant’s answers were sometimes not responsive to the prosecutor’s questions and were merely repetitions of her previous answers. Under the circumstances, and considering the court’s action in sustaining the objection and instructing the jury reversible error is not shown.

During cross-examination of appellant the prosecutor inquired about the contents of her purse. She answered that a watch, among other things, was in the purse. When the prosecutor asked if the watch was still there, appellant answered “yes,” after which the prosecutor remarked: “Okay, I just wanted to be sure we didn’t steal your watch.” An objection was sustained and the jury was instructed not to consider the comment, but the court refused to grant a mistrial.

The comment should not have been made, but the action of the court in sustaining the objection and in giving the instruction rendered the error harmless under the principles noted earlier. Compare Jones v. State, 504 S.W.2d 906 (Tex.Cr.App.1974).

Complaint is also made of an incident when the prosecutor allegedly presented unsworn testimony to the jury. The appellant had testified that the men she said had kidnapped her were taking narcotics. In addition, blood samples of the deceased reflected the presence of morphine. The State advanced the theory that appellant was lying, and that any drugs found in the deceased’s blood must have been given him before he died, either at the scene of the shooting or at the hospital. The State’s expert witness, however, testified that if the drug had been administered under such circumstances it would have been the result of a mistake or of malpractice. On re-direct examination of the expert, the State’s counsel attempted to prove that mistakes are commonly made at hospitals. In doing so, he made the following comment: “I am just trying to point out through the Doctor, some mistakes that Parkland made that I am aware of . ”. Appellant’s objection was sustained and the court instructed the jury to disregard the comment. Motion for mistrial was made and denied.

We do not consider the comment to be so prejudicial as to require reversal, particularly in view of the sustaining of the objection and the giving of the instruction. Moreover, the State’s expert witness ultimately testified that in his opinion the morphine in the deceased’s blood was from an illicit rather than a medical source. Under those circumstances, it is difficult to see how appellant could have been harmed by the comment.

Appellant next urges that the following argument of the prosecutor at the punishment stage of the trial constituted reversible error:

“Now, I do not condone, nor do I agree with anyone who engages in prostitution, nor do I condone, nor do I agree with the activities of these boys in the participation, if they were in prostitution; — if you go out and mess around with a prostitute, you ought to get killed. Do you believe that ought to be the law, that we ought to kill people who mess around and go out with prostitutes? That is pretty strong, that is what they are having you believe.” (Emphasis supplied.)

Again, appellant’s objection to the argument was sustained, and the trial court instructed the jury to disregard the comments, but refused to declare a mistrial.

Prior to the comment quoted, appellant’s counsel had argued to the jury that the responsibility for the shooting was not solely that of the appellant, but that the victims should also bear some of the blame. The prosecutor’s comment appears to be a legitimate answer to that argument. Under the circumstances, we do not believe that the comment constituted error. Certainly, the argument was not so prejudicial that the court’s instruction could not render it harmless.

Appellant also complains of the court allowing the prosecutor to state that the conclusion he argued in the previous quote was the inference which the defense counsel had been making. Under the record as a whole, we do not believe appellant was prejudiced by the court’s ruling in that regard.

Also assigned as error is the following argument:

“I don’t think she planned to run out of that motel room in the nude, but here she has fired all her shots and they aren’t all dead . .

Appellant’s objection was sustained and the jury was admonished to disregard the remarks, but appellant’s motion for mistrial was overruled.

We do not consider appellant to have been harmed by the comment. The State was merely responding to the defense argument that appellant would not have intentionally undressed and then started shooting. The State’s position was that she disrobed knowing full well that she was going to shoot the four young men and assuming that she would not need the clothing to escape. The comment was a reasonable deduction from the evidence. Any possible error was cured by the court’s instruction.

Grounds of error eight and nine argue that reversible error was committed when the prosecutor attempted to argue to the jury that merely because certain defensive theories were defined or mentioned in the charge did not mean that the court believed them. Before ruling on the defense counsel’s objection, the court allowed the prosecutor to finish his statement. Then the court sustained the objection to the statement and instructed the jury, as he had previously done, that every matter raised by the evidence was required to be in the charge. Appellant contends that the court erred in allowing the prosecutor to complete the statement before ruling on the objection, and further that the comment was so prejudicial that the instruction could not remove its harm.

The prosecutor should not have referred to the belief or non-belief of the trial judge in explaining, as he had a right to do, how instructions get into the court’s charge. McClory v. State, 510 S.W.2d 932 (Tex.Cr.App.1974). But in view of the full statement of explanation, and the court’s instruction to the jury, we conclude that reversible error did not occur.

In grounds of error ten and eleven appellant complains because she was not allowed to fully cross-examine the State’s expert witness, Dr. Zumwalt. Early in the trial evidence was produced showing that the deceased had traces of morphine in his blood. The State, in attempting to prove that the deceased was not using drugs, but that the drug was administered medically, proved by Dr. Zumwalt that it would not have been unusual for a general practitioner who came upon the deceased in his wounded condition to administer morphine to him. On cross-examination, appellant attempted to question Dr. Zumwalt as to whether he knew when he gave that testimony that the physician who actually ministered to the deceased prior to his death had stated that he did not administer morphine. The court would not allow appellant’s counsel to question Dr. Zumwalt concerning the hearsay statements attributed to the other physician. Dr. Zumwalt, however, on cross-examination ultimately admitted what the defense was trying to prove. He stated:

“Yes, sir. In my opinion, the morphine found in the blood of the deceased was more probably from an illicit source rather than a medical source.”

Under the circumstances we cannot perceive that appellant was harmed.

Ground of error twelve asserts that the trial court erred in refusing to give appellant’s requested instruction No. Seven which read as follows:

“You are instructed that if the deceased, or those acting with him were in the process of sexually assaulting the defendant, or were in the process of confining the defendant after she was the victim of kidnapping as heretofore defined, then the defendant would not be required to wait until any further injury or sexual assault was actually inflicted or threatened to be inflicted, but she would have the right to use deadly force before receiving any further violence or sexual assaults and she would not have to wait and see if her abductors would release her.”

The court did, however, include the following instructions:

“You are further instructed, in connection with the right of self-defense, that if the defendant was acting in self-defense when she opened fire at Randle Marlowe, Michael Robertson, Alan John Shope, or David Whitaker, acting individually or together, then she would have a right to continue firing so long as it reasonably appeared to her, at the time, as viewed from her standpoint alone, that all danger had not passed.
“You are further instructed on the law of self-defense that a person is justified in using deadly force against another to prevent the other’s imminent commission of aggravated kidnapping, murder, rape, aggravated rape, robbery, or aggravated robbery.
“You are further instructed that on the law of self-defense, that if you find from the evidence that threats were made to the defendant by Randle Marlowe, Michael Robertson, Alan -John Shope, or David Whitaker, acting individually or together, to do the defendant serious bodily injury or to take her life; or if you find from the evidence that the defendant was the victim of one of the above defined crimes then in commission, or was about to become the victim of one of the above defined crimes, then the defendant has a right to arm herself and exercise her right of self-defense as set out above.”

The charge sufficiently set out the defensive theory proposed in the requested instruction. When the charge given by the court adequately presents the defense proposed by a requested instruction, the accused is not harmed. Sheppard v. State, supra; Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Estrada v. State, 479 S.W.2d 316 (Tex.Cr.App.1972).

Appellant further argues that the court’s charge was erroneous because it indicated that appellant was justified in using deadly force only to prevent an imminent rape or kidnapping, but not in order to escape during or after the commission of such a crime. We do not agree. The charge clearly instructed the jury that appellant had the right to defend herself if she were the victim of such a crime or was about to become such a victim. The charge cannot reasonably be read as allowing the use of force to escape before, but not after the crime.

The thirteenth ground of error asserts that the charge was improper because it referred to the possibility of appellant’s retreating before self-defense would be justified, when in fact there was no way for appellant to retreat under the circumstances as they existed. We cannot agree. The charge on the duty to retreat was expressly based upon what a reasonable person, in the defendant’s circumstances, would have done. That was adequate to protect the appellant’s rights. See Sheppard v. State, supra.

Appellant also urges in ground of error fourteen that the court erred in failing to charge the jury on certain lesser offenses included in the offense charged, specifically those of involuntary manslaughter, negligent homicide and simple assault. In support of this argument appellant points to her testimony that she did hot intend to kill anyone but simply began shooting at random in an attempt to escape her alleged captors.

A charge on a lesser included offense is not required unless the evidence raises that issue. McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974); Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973). And, if the evidence raises only the issue that the accused is guilty of the offense charged or no offense at all, the issuer of a lesser included offense is not raised. McBrayer v. State, supra, and cases there cited. In this case appellant was the only witness for the defense. She testified that her only reason for shooting the pistol was her attempt to escape from a kidnapping and rape. If that testimony was true, she would have been guilty of no offense at all. As she was either guilty of the offense charged or no offense, a charge on lesser included offenses was not necessary.

Ground of error fifteen contends that reversible error was committed when the court refused to allow appellant to impeach the State’s witness Hopkins by showing that he had been convicted of the offense of receiving and concealing stolen property and had been assessed a two-year probated sentence. The probation had expired.

It is well settled in Texas that a conviction resulting in a probated sentence which has expired may not be used to impeach the credibility of a witness. Tex.Code Crim. Proc.Ann. art. 38.29 so provides and the cases so hold. Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App.1976); Redman v. State, 533 S.W.2d 29 (Tex.Cr.App.1976). Appellant recognizes those authorities but argues that the decision in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), requires otherwise. We do not agree. Davis v. Alaska allowed an inquiry into a witness’s prior juvenile probation even though Alaskan law prohibited such an inquiry. But the Davis decision was based upon the fact that the witness’s prior juvenile experiences tended to prove bias on the part of the witness and that his testimony was colored by his past experiences. The juvenile record there was admissible for those special reasons, not merely as a criminal record which, by its very nature, impeached the witness’s credibility. Appellant contends that the same situation was present here because, since the witness owned a bar, he was more subject to police or district attorney pressure to cooperate and testify as they wanted. But the answer to that argument is that appellant was allowed to fully show those facts as a possible basis for the witness’s alleged bias. The conviction for receiving and concealing stolen goods was neither necessary nor relevant for such a purpose and therefore does not come within the exception created by Davis v. Alaska.

The final ground of error contends that the indictment should have been quashed because it was not based upon sufficient evidence. That such a contention is not grounds for attacking the validity of the indictment is well settled. Costello v. United States, 350 U.S. 350, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974); Culley v. State, 505 S.W.2d 567 (Tex.Cr.App.1974); Carpenter v. State, 477 S.W.2d 22 (Tex.Cr.App.1972).

All of appellant’s grounds of error have been carefully considered and are overruled. The judgments of the trial court are affirmed.