author: DALLY, Judge.

text:
    Steven Roy CLEMENTS, Appellant, v. The STATE of Texas, Appellee.
    No. 57299.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 24, 1979.

      Will Gray, Houston, on appeal only for appellant.
    Carol S. Vance, Dist. Atty., Ned B. Morris, and Henry K. Oncken, Asst. Dist. At-tys., Houston, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated robbery; the punishment, enhanced by two prior felony convictions, is imprisonment for life.

The appellant asserts that he is entitled to a reversal of the judgment because the charge authorizes the jury to convict him on a theory not alleged in the indictment.

In the indictment it is alleged that the appellant:

“ . . did then and there unlawfully commit an offense hereafter styled the primary offense, in that he did while in the course of committing theft of watches, men’s rings and three jewelry display cases owned by Charles Mize, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”

The jury was instructed:

“In this case you are instructed that if you believe the defendant, Steven Ray Clements, acted together with another or others with intent to promote or assist the commission of the offense by another or others by encouraging, directing, aiding, or attempting to aid another or others to commit the offense alleged in the indictment, to-wit, that in Harris County, Texas, on August 17,1975 they did, without the effective consent of Charles Mize, the owner, take and exercise control over the corporeal personal property of Charles Mize, to-wit, watches, men’s rings and three jewelry display cases from the possession of Charles Mize with intent then and there to deprive Charles Mize of said property, and that said person or persons, in so doing, and with intent to acquire and maintain control of said property intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the said person or persons caused serious bodily injury to Charles Mize or the person or persons used or exhibited a deadly weapon, to-wit, a pistol, then you will find the defendant guilty as charged in the indictment.” (Emphasis added.)

The jury instruction does authorize a conviction for a theory not charged in the indictment. There was no objection to the charge at the time of trial. The author of this opinion is of the belief that in these circumstances where no objection to the charge has been made this Court should determine from the record whether harm results from the giving of an erroneous charge. See the opinion which I authored while a Commissioner in Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976). However, the majority of this Court has since held that the error is fundamental and reversal is mandated in instances such as this. See e. g., Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.1978); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978); Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Armstead v. State, 573 S.W.2d 231 (Tex.Cr.App.1978); Johnson v. State, 573 S.W.2d 778 (Tex.Cr.App.1978); Cleland v. State, 575 S.W.2d 296 (Tex.Cr.App.1978); Fella v. State, 573 S.W.2d 548 (Tex.Cr.App.1978); Bridges v. State, 574 S.W.2d 143 (Tex.Cr.App.1978); Donald v. State, 574 S.W.2d 119 (Tex.Cr.App.1978); Moore v. State, 574 S.W.2d 553 (Tex.Cr.App.1978).

The holdings in these cases govern and this case must be reversed and remanded for new trial.

The judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Brett James BOWLING, Appellant, v. The STATE of Texas, Appellee.
    No. 60406.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 24, 1979.
    None appearing for appellant.
    None appearing for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted by a jury for the unlawful possession of a usable quantity of more than four ounces of marihuana. The judgment recites that the court assessed punishment at confinement in the Collin County jail for 30 days beginning June 15, 1978, a fine of $1500.00, and five years’ confinement in the Texas Department of Corrections probated for a period of five years.

The record is before us without a transcription of the court reporter’s notes or formal bills of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09(9), Vernon’s Ann. C.C.P., and none has been filed here. There is no showing of indigency; however, we find unassigned error that must be reviewed in the interest of justice under Article 40.09(13), Vernon’s Ann.C.C.P.

The knowing or intentional possession of a usable quantity of more than four ounces of marihuana is a third degree felony. Section 4.05(a) and (bXl), Article 4476-15, Vernon’s Ann.Civ.St. The applicable punishment for a third degree felony is by confinement in the Department of Corrections for not more than 10 years or less than 2 years. In addition to imprisonment, an individual adjudged guilty of a third degree felony may be punished by a fine not to exceed $5,000. Section 4.01(b)(3), Article 4476-15, supra. See also V.T.C.A., Penal Code, Section 12.34. Thus, a 30 day jail term is not an authorized punishment for the offense for which appellant stands convicted.

We have reviewed the record and have found no reversible error insofar as appellant has been adjudged guilty of the offense of unlawfully possessing a usable quantity of more than four ounces of marihuana; however, because reversible error was committed in assessing punishment, that part of the judgment is reversed and the cause is remanded to the trial court for a new punishment hearing.

It appears that what the trial court intended to do in the instant case was to assess the defendant’s punishment at confinement in the Department of Corrections for a period of five years and a fine of $1500.00; and, that the court further intended to suspend the imposition of sentence and place the defendant on probation for a five year period on the condition, among other things, that appellant submit to a period of detention in a penal institution to serve a term of imprisonment not to exceed 30 days, as authorized by Article 42.12, Section 6b(a), Vernon’s Ann.C.C.P. However, that is not the way the judgment reads in the instant case; and, we have found nothing else in the record by which we would be justified in reforming the trial court’s judgment under Article 44.24(b), Vernon’s Ann.C.C.P. Consequently, because the 30 day jail term was made a part of the punishment assessed, rather than as a condition of probation, the judgment in the trial court, insofar as it relates to the assessment of the punishment, is reversed and the cause is remanded to the trial court for a new punishment hearing. Upon the assessment of a proper punishment in this case, the trial court should enter a new judgment, see Tyra v. State, 548 S.W.2d 912 (Tex.Cr.App.1977), as well as a new adult probation order. If appellant still desires to appeal, he may do so by giving notice of appeal within the time provided by Article 44.08(b), Vernon’s Ann.C.C.P.

It is so ordered.


author: ROBERTS, Judge.

text:
    Johnny Ray JONES a/k/a Charles Walker a/k/a Robert Fulton, Appellant, v. The STATE of Texas, Appellee.
    No. 57472.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 31, 1979.

      Melvyn Carson Bruder and Archibald C. McColl, Dallas, for appellant.
    Henry Wade, Dist. Atty., Stephen J. Wil-ensky and C. Wayne Huff, Asst. Dist. At-tys., Dallas, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

A jury convicted appellant of attempted murder, and the court assessed his punishment at eighteen years. Appellant contends that the court’s charge is fundamentally defective and that his motion to quash the indictment should have been granted. We affirm.

The State put on evidence which showed that the complainant’s residence was burglarized by one Barbara Williams, that Williams and appellant were arrested for committing the burglary, and that appellant shot the complainant four times in the back in retaliation. Appellant testified in an attempt to show that he acted in self-defense.

Appellant first contends that the court’s charge is fundamentally defective. He points out that, in defining the offense in the charge as it is defined in the statute, the court did not specify that any culpable mental state was required. From this, appellant reasons, intent, knowledge, or recklessness must be read into this part of the charge, if we are to follow the requirements of V.T.C.A., Penal Code, Sec. 6.02(c). If this be true, appellant argues, then the court’s charge was fundamentally erroneous because it expanded upon the language of the indictment, which alleged only that appellant acted intentionally and knowingly (but did not allege that appellant acted recklessly). Cf. Walton v. State, 575 S.W.2d 25 (Tex.Cr.App.1978); No. 54,724, delivered November 29, 1978.

Even if we were to accept appellant’s argument that Section 6.02(c) applies to the court’s charge, we could not sustain his contention. The alleged error occurs in that part of the charge where the offense is generally defined. Although we have counseled against such unnecessarily broad definitions, we have held that they do not constitute reversible error. Dowden v. State, 537 S.W.2d 5, 7 (Tex.Cr.App.1976); Grudzien v. State, 493 S.W.2d 827 (Tex.Cr.App.1973).

As appellant concedes, the portion of the charge which applies the law to the facts duplicates the culpable mental states alleged in the indictment. Cf. Walton v. State, supra. It is this part of the court’s charge which we examine to determine if there has been a fundamentally erroneous expansion on the language of the indictment. See, e. g., Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977), and authorities there cited. We find no fundamental error in the charge; appellant’s contention is therefore overruled.

Appellant’s remaining contention is that the court should have granted his motion to quash the indictment. Omitting its formal parts, the indictment alleges that, on April 8, 1976, appellant

“did then and there, with the specific intent to commit the offense of murder, attempt to cause the death of WAYNE BROWN, an individual, by knowingly and intentionally shooting the said WAYNE BROWN with a firearm.”

Appellant made a timely motion to quash the indictment, in which he alleged, among other things, that the indictment did not contain the elements of murder. This same allegation forms the basis of his contention on appeal.

In Williams v. State, 544 S.W.2d 428, 430 (Tex.Cr.App.1976), we held that “an indictment for criminal attempt is not fundamentally defective for failure to allege the constituent elements of the offense attempted.” There was, however, no motion to quash in Williams. 544 S.W.2d, at 429.

In Williams, we relied heavily on (and quoted from) Gonzales v. State, 517 S.W.2d 785, 788 (Tex.Cr.App.1975), where we held that “the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.” See also Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974). This holding was not qualified by the Court’s noting either the presence or absence of a motion to quash.

Also, we observe that under our former penal code an indictment for assault with intent to murder was not required to allege the elements of murder. Gonzales v. State, supra, 517 S.W.2d, at 787. Bustillos v. State, 464 S.W.2d 118, 125 (Tex.Cr.App.1971).

Finally, we turn to the language of Earl v. State, supra, an aggravated robbery case, which was quoted at length in Gonzales and Williams:

“It is appellant’s contention that the indictment should have alleged the constituent elements of the theft in the course of which the robbery was committed. In considering the argument we observe that Section 29.01, V.T.C.A. Penal Code, provides in part:
“ ‘ “In the course of committing theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.’ ”
“Thus the actual commission of the offense of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same. Of course it must be alleged and proven that the alleged offense was committed ‘in the course of committing a theft’ and ‘with intent to obtain or maintain control of the property’ involved in the theft. Although the proof will involve proving up a theft or attempted theft, the elements of the particular theft (see Chapter 31, and specifically Secs. 31.02 and 31.03, V.T. C.A. Penal Code) or attempted theft (see Sec. 15.01, V.T.C.A. Penal Code), need not be alleged in the indictment.” 514 S.W.2d, at 274.

An attempt offense is analogous to robbery in that the offense attempted need not be proved as a completed offense. Of course, this is the essence of attempt. See V.T.C.A., Penal Code, Sec. 15.01(a). Thus, following the logic of Earl, we hold that the elements of the offense attempted need not be set out in an attempt indictment. Appellant’s second contention is therefore overruled.

The judgment is affirmed.

      . Section 6.02(c) provides:
      “If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.”


author: ONION, Presiding Judge.

text:
    Homer Z. HUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 59124.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 31, 1979.

      James T. Flynt and James Douglas Pickett, Winnsboro, for appellant.
    C. Stephen Hughes, Asst. Dist. Atty., Sul-phur Springs, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for aggravated assault. The jury assessed punishment at imprisonment for 10 years.

On September 20, 1978, we abated the appeal in an unpublished per curiam opinion in order that the record might be approved in accordance with Article 40.09(7), Vernon’s Ann.C.C.P., and so that briefs might be filed in the trial court. The record has now been properly approved, and briefs have been filed; consequently, we reinstate the appeal for consideration on the merits.

Only one contention is raised on appeal. In it appellant contends that the indictment is defective, because it alleges in the disjunctive that he intentionally or knowingly committed the offense, rather than alleging in the conjunctive that he intentionally and knowingly committed the offense. For the reasons that follow, we overrule this contention and affirm the judgment of the court below.

The indictment, omitting its formal parts, alleged that appellant, on or about February 2,1977, “did then and there intentionally or knowingly threaten another, SAMMY RAY POTTS, with imminent bodily injury, by the use of a deadly weapon, to-wit: a gun.” Thus, the indictment was drawn under V.T.C.A., Penal Code, Sections 22.-01(a)(2) and 22.02(a)(3), which provides that a person commits an offense if he intentionally or knowingly threatens another with imminent bodily injury and uses a deadly weapon.

The record reflects that appellant filed a motion to dismiss the indictment prior to trial. The motion alleged, among other things, that the indictment did not adequately and fairly inform appellant of the offense or offenses sought to be charged against him and was so vague, indefinite, contradictory, and uncertain as not to inform appellant of the nature and cause of the accusation against him. The court overruled the motion finding that “the indictment is not vague and uncertain because of the use of the disjunctive word ‘or’ in the phrase ‘Intentionally or knowingly’ . .” The record also shows that appellant attacked the disjunctive allegation in the indictment by motion in arrest of judgment and by amended motion for new trial. In his brief appellant cites several authorities which appear to support his position. The authorities cited will be discussed.

The first case cited is Lewellen v. State, 54 Tex.Cr.R. 640, 114 S.W. 1179 (1908). There it is stated:

“The affidavit charged [Lewellen] with carrying on or about his person a pistol. The indictment is not sufficient; in fact, is fatally defective. The wording of the complaint seems to follow the wording of the statute, and charges the offense in the alternative, instead of con-junctively. It is a well-settled rule, in regard to this character of pleading, that where the statute makes two or more distinct acts connected with the same transaction indictable, and the pleader undertakes to charge more than one of the means found in the statute, these must be pleaded conjunctively, although they may be stated in the alternative or disjunctively in the statute. If not thus pleaded, the indictment will be fatally defective in matter of substance. In Tompkins v. State, 4 Tex.App. 161, the indictment was quashed because two separate offenses were joined with the word ‘or,’ instead of ‘and.’ See Hart v. State, 2 Tex.App. 39, Copping v. State, 7 Tex.App. [61] 62, Roach v. State, 8 Tex.App. [478] 490, Johnson v. State, 9 Tex.App. [249] 252, and Wells v. State (Tex.Cr.App.) 21 S.W. 370. In Davis v. State, 23 Tex.App. [637] 639, 5 S.W. 149, as well as in Walker v. State, 32 Tex.Cr.App. [517], 518, 24 S.W. 909, the indictment was quashed where it stated the offenses disjunctively. In Hart and Wells Cases, supra, and in Burrows v. State (Tex.App.) 17 S.W. 257, Parker v. State (Tex.Cr.App.) 20 S.W. 707, Garza v. State (Tex.Cr.App.) 22 S.W. 139, and Young v. State (Tex.Cr.App.) 42 S.W. 564, it was held that a recognizance which recited that appellant stood and charged and was convicted of carrying on ‘or’ about his person a pistol instead of on ‘and’ about his person, etc., was insufficient, and the appeal was dismissed in those cases because of an insufficient recognizance. Where a statute provides that an offense may be committed by one of various methods or by different means, if the pleader seeks to charge more than one of the means or methods stated, it is not permissible to charge in the alternative.”
“The complaint herein is therefore vicious, and must be held insufficient as a predicate for the prosecution. This being the case, the judgment will be reversed, and the prosecution ordered dismissed, which is accordingly done.”

On rehearing it was made to appear by corrected transcript that appellant had indeed been charged with carrying on and about his person a pistol; and, the conviction was affirmed.

In Lenox v. State, 142 Tex.Cr.R. 194, 152 S.W.2d 342 (1941), the defendant was convicted of maintaining a common nuisance. The Court stated:

“Appellant timely moved to quash the complaint and information on the ground that it failed to charge an offense against the law. It is alleged also that the charges are in the disjunctive in that it is alleged that appellant was keeping a place ‘* * * where intoxicating liquor, to wit, beer and whiskey was kept, possessed and sold or given away * * * .’ It further sets out that the complaint and information failed to negative the fact that appellant did not have a license to sell intoxicants. It charges the many items which the statute prohibits and we would be unable to know which offense the appellant would be called on to defend. A guilty man might be in position to choose the one, but our laws presume him to be innocent. The charge must be specific. We think the motion should have been granted. Carr v. State, 132 Tex.Cr.R. 438, 104 S.W.2d 866; Commander v. State, 140 Tex.Cr.R. 38, 143 S.W.2d 953.”

On original submission in Wilson v. State, 151 Tex.Cr.R. 570, 209 S.W.2d 598 (1948), a conviction upon a plea of guilty to the offense of assault with a prohibited weapon was reversed. It was there stated that the indictment charged that Wilson “did then and there while then and there unlawfully carrying on or about her person a pistol, with the said pistol did then and there wilfully commit an assault in and upon James Ward with said Pistol, and did then and there with said pistol shoot the said James Ward.” The Court stated:

“An indictment which charges that the accused did carry on or about his person a pistol does not charge the unlawful carrying of a pistol, because the use of the word ‘or’ rather than the word ‘and’ renders such allegation uncertain and the indictment defective. Branch’s P.C., Sec. 967; Evage v. State, 136 Tex.Cr.R. 318, 125 S.W.2d 295; Jenkins v. State, 143 Tex.Cr.R. 515, 159 S.W.2d 885.
“It follows that the instant indictment, in charging that the pistol was carried ‘on or about her person’ does not charge that the pistol was unlawfully carried, and is, therefore, fatally defective.”

On State’s motion for rehearing a supplemental transcript was presented to the court showing that an error was made in copying the indictment; in the original transcript the word “or” was used instead of the word “and.” The Court then stated: “As so corrected the indictment is in compliance with law.”

The cases of Scott v. State, 153 Tex.Cr.R. 492, 221 S.W.2d 608 (1949), and Nichols v. State, 171 Tex.Cr.R. 11, 344 S.W.2d 167 (1961), which are cited by appellant, and Mosley v. State, 139 Tex.Cr.R. 550, 141 S.W.2d 948 (1940), which is not cited by appellant, all involved pleadings which allege that the defendant carried a pistol “on or about his person.”

In Wengeroth v. State, 163 Tex.Cr.R. 511, 294 S.W.2d 122 (1956), the defendant was convicted for unlawfully hunting deer with an artificial light. Omitting the formal parts of the complaint, it was alleged that the defendant “ * * * did then and there unlawfully and willfully hunt deer by the aid of an artificial light attached to an automobile, or did then and there unlawfully and willfully hunt deer by the aid of an artificial light * * *(Emphasis in original). In reversing the conviction and ordering the prosecution dismissed, the Court stated:

“The use of the disjunctive ‘or’ in charging an offense renders the allegation uncertain. ‘Manual of Reversible Errors’ by Erisman, Sec. 24, p. 16, and cases there cited.”

In Briscoe v. State, 170 Tex.Cr.R. 321, 341 S.W.2d 432 (1960), the complaint and information alleged that the defendant, and others, did “ ‘unlawfully meet together with intent to aid each other by violence or in some other manner, to wit; by meeting and entering a private place of business, to illegally deprive W. W. Hall of his right of pursuing the labor, occupation and employment’ of operating a lunch counter, the purpose of said unlawful assembly and the intent of appellant, [and others,] in engaging therein being ‘to prevent said W. W. Hall from pursuing said labor, occupation and employment, and to intimidate him from following his daily vocation, and to interfere with his said labor and employment.’ ” There, in reversing the conviction and ordering the prosecution dismissed, the Court stated:

“Under the statute the intent of the persons meeting to aid each other to commit an offense or to illegally deprive any person of any right or to disturb him in the enjoyment of any right, may be the intent to do so by violence or the intent to do so in some other manner than by violence.
“The information was in the disjunctive, and gave no notice whether the state would rely on an intent by violence to disturb W. W. Hall and deprive him of his right to operate a lunch counter, or would rely upon proof of an intent to so disturb and deprive W. W. Hall of such right by some means other than by the use of violence.
“Where a statute provides that an offense may be committed by one of various methods, if the pleader seeks to charge more than one of the methods stated, it is not permissible to charge in the disjunctive. Lewellen v. State, 54 Tex.Cr.R. 640, 114 S.W. 1179.
“The allegation ‘by violence or in some other manner’ renders the information uncertain. Manual of Reversible Errors by Erisman, Sec. 24, p. 16, and cases cited; Branch’s Ann.P.C. 2d Ed. Sec. 523, and cases cited.”

Jasper v. State, 403 S.W.2d 790 (Tex.Cr.App.1966), was a conviction for contributing to the delinquency of a minor. There the information charged the defendant did “ * * * on or about the 27th day of March A.D., 1965, and before the filing of this information, in the County of Brown and State of Texas, did then and there unlawfully contribute to the delinquency of Joe Dellis, a male, then and there under the age of 17 years, by allowing the said minor to remain in a place where intoxicating liquors were kept, drunk, used or sold, * * *There it is stated:

“The complaint and information are fatally defective for the additional reason that the charges are made disjunctively, it being alleged that appellant allowed the minor to remain in a place where intoxicating liquors were kept, drunk, used or sold. Lenox v. State, 142 Tex.Cr.R. 194, 152 S.W.2d 342.” (Emphasis in original).

Our examination of the Texas authorities and those from other jurisdictions shows that the apparent reason for the rule is that it fails to give the defendant notice of the charges against him and is vague and uncertain. This stated reason, however, will not withstand critical analysis.

The indictment in the instant case alleged that appellant “intentionally or knowingly” committed an aggravated assault. The defendant was put on notice that the State would attempt to prove either that he intentionally committed an aggravated assault or that he knowingly committed an aggravated assault. Under the statutes under which this indictment was drawn, the State was not required to prove both that appellant “intentionally and knowingly” committed the offense, but rather could prove that he “intentionally or knowingly” committed the offense. We fail to see how the defendant was not put on notice or was misled or harmed in any way. Nor, do we perceive how the indictment was uncertain or vague as contended by appellant.

It appears to us that the prohibition on disjunctive pleading, in a case such as the instant one, is a hyper-technical rule such as might be found in a 19th Century pleading book. It has overtones of the old forms of action, such as trespass, case, debt, detinue, trover, etc. The prohibition of disjunctive pleading, such as that used in the instant case, has no place in the pleading of criminal cases in the 20th Century. This is not to say, however, that there may be some instances in which a particular disjunctive pleading would be so vague, uncertain, and indefinite, as to give no notice of the offense charged.

Moreover, the use of the disjunctive word “or” in the instant case has far less tendency to mislead a defendant than the allegation in the instant indictment that the offense was committed “on or about the 2 day of February, 1977.” The use of the disjunctive word “or” between the words “intentionally” and “knowingly” at least lets the defendant know that the State will attempt to prove an intentional or knowing violation of the law. However, the allegation that the offense was committed “on or about” February 2, 1977, allows the State to prove the offense was committed at any time before the return of the indictment and within the statute of limitations for the offense of aggravated assault, a period of three years. Nevertheless, the use of an “on or about” allegation as to the date of the commission of an alleged offense has been uniformly upheld against all attack. See Article 21.02, Vernon’s Ann.C. C.P., Annotation 25, and cases there cited.

Furthermore, the use of the disjunctive word “or” between culpable mental states under the new Penal Code is permissible. Under V.T.C.A., Penal Code, Section 6.02(d), culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

(1) intentional;
(2) knowing;
(3) reckless;
(4) criminal negligence.

In Cowan v. State, 562 S.W.2d 236, 240 (Tex.Cr.App.1978), an aggravated rape case, it was held that it was not error to plead in the conjunctive and charge the jury in the disjunctive.

Therefore, we hold that the use of the word “or” between the words “intentionally” and “knowingly” was permissible in the instant indictment. This being so, the trial court did not err in overruling appellant’s motion to dismiss the indictment. All cases which are contrary to this decision are overruled to the extent of such conflict.

The judgment is affirmed.


author: ODOM, Judge. DALLY, Judge,

text:
    Herbert Wayne BASS, Appellant, v. The STATE of Texas, Appellee.
    No. 59622.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 31, 1979.
    James E. Tatum, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Frank Harmon, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction based on a plea of guilty to the offense of delivery of marihuana where punishment was assessed at 10 years and a $5,000 fine.

Appellant asserts that he should be allowed to withdraw his plea because the prosecutor violated a plea bargain agreement. His claim is that in return for a guilty plea the prosecutor agreed not to make a recommendation for punishment. The prosecutor made no recommendation at the hearing where the guilty plea was taken but after appellant’s counsel asked for probation at the sentencing hearing he urged the trial court to give the maximum sentence. Appellant contends this violated the plea bargain.

This is not an instance where a trial court refused to follow an agreed recommendation upon a plea bargain and, thus, does not come within the ambit of Article 26.13, V.A.C.C.P. Rather, this is a dispute over whether the State breached its plea bargain with appellant, and must be examined in light of Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) where the United States Supreme Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” If the prosecution does not live up to its part of the bargain, doubt is raised as to whether or not the guilty plea induced by the broken bargain can be regarded as truly voluntary.

The question before the Court in this case, as in Santobello, is not what the judge did or what his perceptions of the agreement were, but what went on between the prosecutor and the appellant. As the Santobello Court stated:

“We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interest of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. . . .We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.”

The judge’s statement at the end of the hearing on the motion for new trial in the instant case makes clear that he was not bound by what had transpired between appellant and prosecutor. The judge said:

“This Court does not consider itself bound and is not accepting whether there is agreed recommendation, the Court is sure that the defendant was surprised at that fact, at the time, he entered the plea. The simple issue — answer—of the order for pre-sentence investigation to be made by the Court does not — to the Court automatically shut up either side. I still expect either side to indicate their particular stand and I am not under those circumstances bound by the request of either side. I don’t find any breach. I don’t find any grounds for granting the new trial, at this time. The defendant’s motion for new trial will be overruled.”

That he did not feel himself bound by what had occurred puts him in a position not unlike that of the trial judge in Santobello, who was quoted as saying:

“Mr. Aronstein [Defense counsel], I am not at all influenced by what the District Attorney says, so that there is no need to adjourn the sentence, and there is no need to have any testimony. It doesn’t make a particle of difference what the District Attorney says he will do, or what he doesn’t do.
“I have here, Mr. Aronstein, a probation report. I have here a history of a long, long, serious criminal record. I have here a picture of the life history of this man. . . . ”

Santobello v. New York, 404 U.S. at 259, 92 S.Ct. at 497. The Supreme Court reversed Santobello, not because of what the judge did or did not do, but because the prosecutor had not kept faith with the defendant.

Thus, the question revolves around a determination of the existence or nonexistence of the agreement and its terms. “If there was no agreement, there was no breach of duty.” Rodriquez v. State, Tex.Cr.App., 509 S.W.2d 319, 321. Where there is conflicting evidence on the issue, this Court will defer to findings made by a trial court in resolving those conflicts. See King v. State, Tex.Cr.App., 511 S.W.2d 32; Rodriquez v. State, supra. A study of the record of the hearing on appellant’s motion for new trial, however, indicates without conflict that there was an agreement made by the prosecutor not to make a recommendation as to punishment. Appellant’s attorney repeatedly testified to this claim at the hearing on the motion for new trial. The prosecutor in his testimony nowhere explicitly denied this assertion and admitted several times that he had entered into some kind of agreement. The basic thrust of his position was that there is a distinction between “recommendation” and “argument,” and that an agreement not to make a recommendation of punishment does not foreclose him from “arguing” punishment in response to appellant’s request for probation. The fact remains that the prosecutor expressed to the trial court his opinion that the offense called for the maximum penalty. The act is the same, whether called argument or recommendation, and there is sufficient evidence in the record to sustain appellant’s assertion that it was done contrary to an agreement reached during plea bargaining. Under Santobello v. New York, supra, appellant is entitled to relief.

The judgment is reversed and the cause remanded.

DALLY, Judge,

dissenting.

The majority says: “The question before the Court in this case, as in Santobello, is not what the judge did or what his perceptions of the agreement were, but what went on between the prosecutor and the appellant.” However, what went on between the prosecutor and the appellant was a matter to be shown by the record, more particularly by the evidence on the motion for new trial. The trial judge had the duty after that hearing to determine what went on between the prosecutor and the appellant. The trial judge’s determination of the issue is reflected by his order overruling the motion for new trial. The trial judge’s ruling on that matter should only be disturbed if there is a clear abuse of discretion.

The majority also says: “The Supreme Court reversed Santobello, not because of what the trial judge did or did not do, but because the prosecutor had not kept faith with the defendant.” The trial judge in this case based on the complete record as evidenced by his overruling of the motion for new trial found that the prosecutor had kept faith with the appellant.

The trial judge, the Honorable Thomas H. Routt, heard the evidence on the motion for new trial and found that there was not a breach of agreement by the prosecutor and overruled the motion for new trial. The trial judge is the finder of the facts and he may believe or disbelieve any of the testimony he heard on the motion for new trial. Since I find no abuse of discretion on the part of the trial court in overruling the motion for new trial, I dissent to the reversal of this judgment.

      . Had counsel for the prosecution limited his argument to opposing appellant’s request for probation, we would be faced with an entirely different situation. However, he went beyond merely opposing probation to affirmatively recommending a sentence.


text:
    Robert Louis FELDMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 59921.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 31, 1979.

      Danny Duane Pitzer, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Hugh Lucas, Jr., Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On October 15, 1976 the appellant entered a plea of guilty in a bench trial to an indictment charging him with burglary of a building. The court assessed his punishment at three (3) years’ imprisonment, but suspended the imposition of the sentence and placed the appellant on probation subject to certain conditions.

On December 8, 1977, the State filed an amended motion to revoke probation alleging that, among other things, appellant had violated his probationary conditions by failing to report monthly to the probation officer during the months of April and May, 1977 and by committing the offense of public intoxication.

On the same date, appellant entered a plea of “true” to the allegations in the amended motion and later made a judicial confession. The court found he had violated the conditions described above. He was sentenced on July 25, 1978 and gave notice of appeal.

On appeal he contends that the burglary indictment is fundamentally defective and he is entitled to challenge the same on appeal from the revocation order. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

Omitting the formal parts, the indictment alleged that on or about September 4, 1976 the appellant “did unlawfully, knowingly and intentionally enter a building not then and there open to the public, without the effective consent of Robert A. Glick, the owner thereof, with intent to commit theft. . . ."

There was no motion to quash and the form tracks the statute of V.T.C.A., Penal Code, § 30.02, which is usually sufficient. Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976). Appellant contends, however, that the term “effective consent” is vague and uncertain rendering the indictment fundamentally defective. He notes that “effective consent” is defined in V.T.C.A., Penal Code, § 1.07(12), as follows:

“ ‘Effective consent’ includes consent by a person legally authorized to act for the owner. Consent is not effective if:
“(A) induced by force, threat, or fraud;
“(B) given by a person the actor knows is not legally authorized to act for the owner;
“(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or
“(D) given solely to detect the commission of an offense.”

Appellant argues that the State in alleging “without effective consent” must specify whether it is relying on (A) or (B) or (C) or (D) of said § 1.07(12). See and cf. V.T.C.A., Penal Code, § 31.01(4). Appellant cites no authority and we have found none. We conclude that the indictment is not fundamentally defective. An indictment for burglary need not allege which subsection of § 1.07(12) the State is relying upon. Cf. Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975). When “without effective consent” is alleged, the accused is put on notice that it could be for any of the reasons set forth in V.T.C.A., Penal Code, §§ 1.07(12) and 31.01(4).

Finding no abuse of discretion, the judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Fred Lee BREWER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 59923 to 59925.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 31, 1979.
    Gerald A. Woolf, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Attempted appeals are taken from three final judgments forfeiting appearance bonds.

In Cause No. 59,923, the appellant was a surety on an appearance bond for Charles Sweeney in the amount of $10,000. A judgment nisi forfeiting the bond was entered in the 209th District Court of Harris County. A final judgment was entered against Charles Sweeney as principal and Fred Lee Brewer as surety on May 10, 1978.

In Cause No. 59,924, the appellant was a surety on an appearance bond for Charles Sweeney in the amount of $20,000. A judgment nisi forfeiting the bond was entered in the 209th District Court of Harris County. A final judgment was entered against Charles Sweeney as principal and Fred Lee Brewer as surety on May 10, 1978.

In Cause No. 59,925, the appellant was a surety on a bond for Charles Sweeney in the amount of $5,000. A judgment nisi forfeiting the bond was entered in the 209th District Court of Harris County. A final judgment was entered against Charles Sweeney as principal and Fred Lee Brewer as surety on May 10, 1978.

The judgments in each case were entered on May 10,1978. In each case the appellant filed a motion for new trial on May 19, 1978. It does not appear that the trial court took any action with respect to these motions for new trial. They were therefore overruled by operation of law. A notice of appeal to the Court of Criminal Appeals was filed in each case on July 13, 1978. A cost bond in the amount of $500 was filed with the district clerk of Harris County in each case on October 2, 1978. The transcript and statement of facts in each case were filed in this Court on October 24,1978.

In Tinker v. State, 561 S.W.2d 200 (Tex.Cr.App.1978), this Court, quoting from Blue v. State, 170 Tex.Cr.R. 449, 341 S.W.2d 917 (1960), stated:

“A bond forfeiture is a criminal action, but after the entry of judgment nisi all the proceedings, unless otherwise provided, are governed by the same rules as govern in civil cases; that is, by the applicable rules of Civil Procedure.”

It is apparent from the record before us that the appellant has failed to properly perfect his appeal in each of these cases and we must dismiss the appeals for lack of jurisdiction.

The final judgment of forfeiture was entered in each case on May 10, 1978. Rule 329b of the Texas Rules of Civil Procedure provides that a motion for new trial must be filed within ten days and that if it is not acted upon by the trial court, it will be overruled by operation of law 45 days after it is filed. The motions for new trial in each of these cases were therefore overruled by operation of law on July 3, 1978.

We would also note that changes in the Texas Rules of Civil Procedure made by amendment effective January 1,1976, eliminated the notice of appeal as an appellate step in a case such as this.

Rule 356(a) of the Texas Rules of Civil Procedure provides as follows:

“Whenever a bond for cost on appeal is required, the bond shall be filed with the clerk within 30 days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law.” [Emphasis added.]

In each of the cases before us, the appellant’s cost bonds should have been filed within 30 days of July 3, 1978. The cost bonds were, however, not filed with the district clerk until October 2, 1978, almost 90 days after appellant’s motion for new trial in each of the cases was overruled by operation of law.

The requirement that a cost bond be filed within 30 days of the overruling of a motion for new trial by operation of law is mandatory and jurisdictional and it cannot be waived. Texas Employers Insurance Association v. Dixson, 546 S.W.2d 124 (Tex.Civ.App.—Beaumont, 1977, no writ); Juarez v. Marchan, 537 S.W.2d 129 (Tex.Civ.App.—Corpus Christi, 1976, no writ); Olivarez v. Service Finance Corporation, 513 S.W.2d 946 (Tex.Civ.App.—San Antonio, 1974, no writ); Heldt Brothers Trucks v. Alvarez, 477 S.W.2d 691 (Tex.Civ.App.— San Antonio, 1972, writ ref’d.). See King v. Payne, 156 Tex.R. 105, 292 S.W.2d 331 (1956); Glidden Company v. Aetna Casualty and Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956).

In the present state of the record, we have no authority to consider the appeals upon their merits. The appeals are dismissed for want of jurisdiction.

The appeals are dismissed.


text:
    Annie Gilmore GONZALES, Principal and Otharay Crutchfield, Surety, Appellants, v. The STATE of Texas, Appellee.
    No. 59406.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 31, 1979.
    No appearance for appellants.
    Henry M. Wade, Dist. Atty. and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, for the State.
   OPINION ON APPELLEE’S MOTION FOR REHEARING

DALLY, Judge.

The appellee’s motion for rehearing is granted and our opinion on original submission is withdrawn.

The appellee moved this Court to affirm on certificate, pursuant to Vernon’s Ann. Rules Civ.Proc. Rule 387, the final judgment of the trial court against the principal and surety on a bail bond forfeiture. On original submission we affirmed on certificate the judgment against the principal, Annie Gilmore Gonzales, but refused to affirm on certificate the judgment against the surety, Otharay Crutchfield, and dismissed the appeal of the surety. Since the motion of the appellee to affirm on certificate was filed over one year after the right to file the transcript on appeal had expired, we refused to affirm the judgment on the certificate against the surety based on Vernon’s Ann.Rules Civ.Proc. Rule 387(c), which reads:

“Affirmance of the judgment on certificate may be had at any time after the right to file the transcript has expired; but no affirmance of the judgment on certificate shall be had against the sureties upon the bond unless the motion to so affirm has been filed within one year after the right to file the transcript has expired.”

The appellee on motion for rehearing asserts that in the context used the word bond in Rule 387(c), Vernon’s Ann.Rules Civ.Proc., refers to an appeal bond or super-sedeas bond in all civil proceedings including the appeal of bail bond forfeiture proceedings and that the sureties referred to do not include the sureties on a bail bond. We agree, and now affirm on certificate the judgment against Otharay Crutchfield, the surety on the bail bond. Appellee’s motion to affirm on certificate as to appellant Annie Gilmore Gonzales is granted and the judgment is affirmed.

The appellee’s motion for rehearing is granted. The judgments are affirmed.


text:
    Charles L. THORNTON, Appellant, v. The STATE of Texas, Appellee.
    No. 54683.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 31, 1979.
    Marion T. Carson, San Antonio, for appellant.
    Ted Butler, Dist. Atty., F. G. Rodriguez, Stephen P. Allison and Susan D. Reed, Asst. Dist. Attys., San Antonio, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

Our panel opinion on original submission is withdrawn and the following is substituted in lieu thereof.

This appeal is taken from a conviction for aggravated robbery, where the punishment was assessed at life imprisonment by the court following a guilty verdict and proof before the court of a prior felony conviction as alleged for enhancement of punishment.

Court-appointed counsel for appeal has filed a brief in which, after an examination of the record, he concluded that the appeal is wholly frivolous and without merit. Aware of his duties as prescribed by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has advanced two arguable grounds of error in said brief and furnished a copy of the brief to the indigent appellant to allow him to file a pro se brief if he desired. Thereafter, the entire record was made available to the appellant and he filed a pro se brief.

After a careful examination of the appellate brief, we conclude that two “arguable” grounds of error raised by counsel are without merit and they are overruled. A discussion thereof would be of no benefit to the jurisprudence of this State.

On original submission appellant contended in his pro se brief that the trial court erred in assessing his punishment under V.T.C.A., Penal Code, § 12.42(c), as a second offender in that the exhibit (a pen packet) introduced into evidence as proof of the prior conviction is insufficient to support the enhancement of punishment for failure to reflect a valid judgment. The panel agreed and remanded the cause for a new hearing on punishment.

On rehearing we conclude that the panel was in error in remanding said cause. The record reflects that following the jury’s verdict of guilty the penalty stage of the trial was conducted before the court. A fingerprint expert testified that appellant’s known prints were identical with prints contained in State’s Exhibit # 2, a pen packet relating to the alleged prior conviction for felony theft under the former Penal Code. State’s Exhibit # 2 was offered and the only objection was that the sentence contained in the pen packet appeared to be a certified copy rather than the original sentence. The objection was overruled. No objection that the pen packet did not contain a judgment or a copy thereof was made. The copy of the sentence contained in the pen packet recites, among other things, that Charles Lee Thornton had appeared “for the purpose of having sentence of the law pronounced in accordance with the verdict and judgment rendered and entered against him . . . .” There is nothing in the record before us to show that such recital in the sentence is incorrect or that a judgment was not in fact entered in said cause.

A “judgment” and “sentence” are not the same thing. See Articles 42.01 and 42.02, V.A.C.C.P. A sentence is the order of the court in felony and certain misdemeanor cases pronouncing the judgment and ordering the same to execute. See Article 42.02, supra. Without a judgment the trial court is not authorized to sentence a defendant. Tyra v. State, 548 S.W.2d 912 (Tex.Cr.App.1977); Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974); Scott v. State, 461 S.W.2d 619 (Tex.Cr.App.1971). While all of this is true, the question presented is not whether the sentence is valid without a judgment, but whether in proving an alleged prior conviction the failure of a pen packet to contain a copy of the judgment renders the proof insufficient under the circumstances here presented.

In Jones v. State, 449 S.W.2d 277 (Tex.Cr.App.1970), we were confronted with the same fact situation including the same recitation in the sentence of the prior conviction.

There this court wrote:

“In the absence of a showing to the contrary it is to be presumed. that the sentence was based upon a judgment and the court acted in accordance with the law. The appellant makes no claim that a judgment was not in fact entered, only that the State failed to prove the same. We cannot agree.
“The procedure here employed is not, however, commended. Certainly it is far more desirable for a certified copy of the judgment of a prior conviction to be introduced when this method of proof is utilized, but its absence, under the circumstances here presented, does not call for reversal or for a reformation of the judgment . . . .”

We conclude that Jones is controlling in the instant case. We acknowledge that in proving a final conviction for the enhancement of punishment that a mere showing of a verdict, Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974), or a judgment without a sentence, White v. State, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1961), does not show a final conviction necessary to enhancement of punishment under V.T.C.A., Penal Code, § 12.42(c). However, here, we have a sentence showing a verdict and a judgment was entered and no objection offered on the basis of the absence of a judgment in the pen packet.

We are aware of Aaron v. State, 546 S.W.2d 277 (Tex.Cr.App.1976), which noted, among other things, that the pen packet from Louisiana contained no judgments upon which the sentences for the three offenses can be based. There were other reasons the Aaron conviction was reversed, and in reviewing the Aaron decision, we conclude that this was an observation as in the Jones opinion that the failure to include the judgment in the pen packet was not a desirable practice.

The State’s motion for rehearing is granted, the order remanding the cause for a new hearing on punishment is set aside, and the judgment is affirmed.