author: ONION, Presiding Judge.

text:
    Billy Ray ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 53221.
    Court of Criminal Appeals of Texas.
    May 3, 1977.

      Dan J. Anderson, Richardson, for appellant.
    Henry. Wade, Dist. Atty., John Tatum, Braden W. Sparks and John William Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for aggravated sexual abuse in which the punishment was assessed by the jury at ninety-nine (99) years in the Department of Corrections.

In two grounds of error appellant challenges the sufficiency of the evidence to sustain the conviction, and in a third ground contends the indictment is fatally defective.

The record reflects that the complaining witness, Charles Douglas Hedrick, was arrested during October, 1974, for failure to pay a fine imposed as a result of a misdemeanor marihuana conviction.

The jail tank in the Dallas County jail where appellant was placed consists of several separate cells, each capable of housing eight inmates, which are opened during the daytime onto a dayroom. After having been in jail for 20 days and 3 days prior to the alleged offense, Hedrick was first approached by Henry Albert Bradshaw, an inmate and co-defendant of the appellant. Bradshaw made sexual advances to He-drick, telling him he was “sweet” and that he would like to have sexual relations with him. Bradshaw threatened to beat Hedrick to get him to submit, but Hedrick, who was approximately the same size as Bradshaw, rebuffed Bradshaw by saying that he would fight. Bradshaw continued to harass He-drick by grabbing him on the arm and leg, inviting him to move into Bradshaw’s cell and asking him to be Bradshaw’s “ole lady.”

On the same day, October 25th, Hedrick first came into close contact with the appellant, Billy Ray Rogers, who was substantially larger than Hedrick. Rogers stated that he had been informed Hedrick was “going to kick his ass.” Hedrick disclaimed any knowledge of such statement. Rogers approached Hedrick again on October 26th, and stated someone was “trying to get us to fight” and suggested Hedrick move to his (appellant’s) cell for protection, but Hedrick kept “putting him off.” On October 27th appellant delivered an ultimatum. Hedrick related the appellant told him “to get my shit and move it in the cell or to get out in the dayroom and he was going to kick my ass.” Hedrick moved into appellant’s cell, and shortly thereafter Bradshaw moved into the same cell.

Nothing occurred on the night of October 27th. On the next night, after the inmates had been locked in their cells for the night, Hedrick was making coffee when without warning appellant hit him in the face, knocking him to the ground. Hedrick related he would have defended himself, but the blow rendered him “off balance and sightless.” Appellant continued to beat Hedrick with his fists and feet. Over the next two hours there were some five series of beatings, interrupted only when the guard came by. Hedrick was hit with a plastic bottle and two or three times the appellant picked him off the floor and slammed his head into the cell bars, saying, “I’m going to brain you this time.” He was also kicked in the groin and became extremely nauseated. The appellant continued to beat Hedrick about the face until one of the inmates suggested appellant “would pick up a case” because marks on the face could be easily identified by pictures “and stuff like that.”

During the beatings when a guard was heard approaching Hedrick was told to clean up his face by wiping the blood off his face and to turn in the opposite direction from the guard. Hedrick was told by appellant that if he made “any motion towards the guard or anything like that by the time they got around to letting me out that he would kill me.” After the second series of beatings, Hedrick was told to take off his bloody clothing, and when they thought a guard was approaching Hedrick was hidden under a bunk because there was no time to clean him up. When the guard did not materialize, Hedrick was pulled out and the beatings continued. After the fourth series, Hedrick passed out for a few minutes.

While appellant initially attacked He-drick without warning, by the time of the second series of beatings appellant told He-drick he was either going to “fight or fuck,” indicating and referring to Bradshaw, who was nearby and who would nod, smile and appeared excited. This statement was continually repeated and Hedrick understood it to mean that he had to submit to Bradshaw or keep getting beaten. Hedrick, who said he was unable to fight back, kept saying he would fight and the beatings continued.

After the fifth series of beatings, Bradshaw told Hedrick he might as well give up. Hedrick stated he was in a great deal of pain from his groin and his chest after two hours of beatings and concluded “it would be easier to give in than to be beaten to death.”

Hedrick laid down on a bunk, believing he was shoved by the appellant. There Bradsaw assaulted him, resulting in contact and penetration between the genitals or the penis of Bradshaw and the anus of Hedrick. When the assault was completed, the appellant asked if “anybody else in the cell . wanted some.” Hedrick related, however, that neither the appellant nor any of the other inmates bothered him thereafter. He did not sleep all night.

The next morning when Jail Guard R. F. Tucker entered the area where Hedrick was he saw Hedrick standing at the door “shaking real bad, his hands were trembling . .” Tucker separated Hedrick from the other inmates by placing him in a safety port cell and reported the incident. Chief Jailor Macaluso and Georgia Parks, a nurse, also testified that when they observed Hedrick shortly after his release from the cell he was having difficulty breathing and was badly shaken. Bruises were observed all over his body. A large knot was found on the right side of his head, and numerous knots could be felt under the hair on his head.

In the first ground of error appellant contends there is a variance between the indictment and the proof. He argues the indictment alleged lack of consent to have been a result of compulsion by threat while the proof shows the compulsion was by force, and thus the State failed to show complainant submitted to the act of deviate sexual intercourse because of the threat of imminent infliction of death.

When the sufficiency of the evidence is challenged, this court is required to view the evidence in the light most favorable to the verdict. Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976); Morgan v. State, 503 S.W.2d 770 (Tex.Cr.App.1974). The jury had before it testimony that He-drick was beaten by appellant, a much larger man, over a period of two hours, and he was threatened with death if he made any outcry. Threats accompanied the beatings, which included Hedrick having his head slammed against the cell bars two or three times while the appellant stated, “I’m going to brain you this time.” Hedrick finally submitted after the fifth series of beatings because of the pain he was suffering and because it would be “easier to give in than to be beaten to death.” He stated he believed he was threatened with imminent death.

While the evidence may reflect that the use of force accompanied the verbal threats made to the complainant, that fact does not create a variance. The term “threats” is not limited to the use of verbal aggression, but may include acts amounting to an offer to use future force. Threats may be communicated by actions, words or deeds. In the record before us we find the jury had ample evidence to conclude that Hedrick submitted because he was “threatened with imminent infliction of death.”

Appellant next argues that the evidence fails to prove sufficiently that appellant acted with intent to promote or assist the commission of the act of deviate sexual intercourse by Bradshaw. Appellant cites V.T.C.A., Penal Code, § 7.02.

First, we observe that V.T.C.A., Penal Code, § 21.04, provides in part that:

“(a) A person commits an offense if, without the other person’s consent and with intent to arouse or gratify the sexual desire of any person, the actor:
“(1) -
“(2) Compels the other person to engage in sexual intercourse or deviate sexual intercourse with a third person, whether the other person is of the same sex as or opposite sex from the third person. ...” (Emphasis supplied.)

V.T.C.A., Penal Code, § 7.02 (Criminal Responsibility for Conduct of Another), provides in part:

“(a) A person is criminally responsible for an offense committed by the conduct of another if:
“(1) -
“(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or . . . .”

Appellant did all of the beating of He-drick, telling him he had to “fight or fuck,” indicating Bradshaw, who would nod, smile and appear excited. After Hedrick lay on the bunk where he believed the appellant shoved him, Bradshaw assaulted him. Then the appellant inquired if any of the other inmates “wanted some.” The evidence is more than sufficient to show that the appellant acted with intent to promote or assist the commission of the act charged.

Appellant’s contention is without merit.

Appellant advances the contention that the State failed to allege and prove each element of the offense charged beyond a reasonable doubt. The thrust of appellant’s argument is that Y.T.C.A., Penal Code, § 21.05, prescribes that a person commits the offense of aggravated sexual abuse if he commits sexual abuse as defined in § 21.-04 of the Penal Code and commits certain aggravating conduct as set forth in subsections (1) and (2) of § 21.05(a). He urges that the State failed to allege or prove one of the enumerated non-consensual acts as set forth in Y.T.C.A., Penal Code, § 21.-04(b)(l — 7), essential to an allegation and proof of sexual abuse.

There was no motion to quash or set aside the indictment, so appellant must rely upon the indictment being fundamentally defective. See American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

Omitting the formal parts, the indictment charged the appellant:

“ . . . did then and there unlawfully knowingly and intentionally, by threatening the imminent infliction of death to Charles Douglas Hedrick, compel Charles Douglas Hedrick, a person not the spouse of Henry Albert Bradshaw, to engage in deviate sexual intercourse with Henry Albert Bradshaw without the consent of Charles Douglas Hedrick, by contact between the genitals of Henry Albert Bradshaw and the anus of Charles Douglas Hedrick with intent to arouse sexual desire of Henry Albert Bradshaw

V.T.C.A., Penal Code, § 21.04, as originally enacted and in effect at the time of the alleged offense, reads:

“(a) A person commits an offense if, without the other person’s consent and with intent to arouse or gratify the sexual desire of any person, the actor:
! “(1) engages in deviate sexual intercourse with the other person, not his spouse, whether the other person is of the same or opposite sex; or “(2) compels the other person to engage in sexual intercourse or deviate sexual intercourse with a third person, whether the other person is of the same sex as or opposite sex from the third person.
“(b) The intercourse is without the other person’s consent under one or more of the following circumstances:
“(1) the actor compels the other person to submit or participate by force that overcomes such earnest resistance as might be reasonably expected under the circumstances;
“(2) the actor compels the other person to submit or participate by any threat that would prevent resistance by a person of ordinary resolution;
“(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
“(4) the actor knows that as a result of mental disease or defect the other person is at the time of the deviate sexual intercourse incapable either of appraising the nature of the act or of resisting it;
“(5) the other person has not consented and the actor knows the other person is unaware that deviate sexual intercourse is occurring;
“(6) the actor knows that the other person submits or participates because of the erroneous belief that he is the other person’s spouse; or
“(7) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge.
“(c) An offense under this section is a felony of the second degree.”

The form of § 21.04 follows that of V.T. C.A., Penal Code, § 21.02 (Rape). Subsection (b) of § 21.04 repeats the list of facts negating consent set out in § 21.02 (Rape). Here pertinent is the Practice Commentary to § 21.02 which reads in part:

“Subsection (b)(2) deals with threats and basically preserves Penal Code art. 1185, which provided that ‘the threat must be such as might reasonably create a just fear of death or of great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.’ Although this article spoke of fear of death or great bodily harm, it was not so applied. In recent cases, fear for the safety and mental health of the victim’s children was deemed a sufficient threat, e. g., Most v. State, 386 S.W.2d 537 (Tex.Cr.App.1965). Moreover, the wording of art. 1185 did not indicate whether the threat must be against the female or some third person, but the court in Torbert v. State, 166 Tex.Cr.R. 311, 313 'S.W.2d 303 (1958), held that threats against the victim’s children were included. Subsection (b)(2) focuses on the effect of the threat, thus avoiding these difficulties in prior law.”

V.T.C.A., Penal Code, § 21.05 (Aggravated Sexual Abuse), provides:

“(a) A person commits an offense if he commits sexual abuse as defined in Section 21.04 of this code or sexual abuse of a child as defined in Section 21.10 of this code and he:
“(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
“(2) compels submission to the sexual abuse by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.
“(b) An offense under this section is a felony of the first degree.”

If it can be argued that appellant’s contention has any validity, we observe that the allegation that Hedrick was compelled to submit by being threatened with the imminent infliction of death would be inclusive of “any threat that would prevent resistance by a person of ordinary resolution.” V.T.C.A., Penal Code, § 21.04(b)(2) (in effect at the time of the alleged offense). And proof of a threat of death to be imminently inflicted would reflect a threat that would prevent resistance by a person of ordinary resolution.

It is also observed that the indictment in the instant case is in substantial compliance with the suggested forms in Morrison and Blackwell, New Texas Penal Code Forms, p. 18; 2 Branch’s Texas Anno. Penal Statutes, 3rd Ed., § 21.05, p. 138. See also McClung’s Jury Charges for Texas Criminal Practice (Indictments and Informations), 1976, p. 251.

We conclude the language from Gray v. State, 77 Tex.Cr.R. 221, 178 S.W. 337, 339 (1915), is here appropriate. There the court wrote:

“ . . . We think the indictment, as written, is unquestionably of that certainty which will enable the accused to plead the judgment herein given upon it in bar of any other prosecution for the same offense; also that it charges the offense in such ordinary and concise language as to have enabled appellant or any other person of common understanding to know what is meant, and to give her notice of the particular offense with which she was charged, and to enable the court to pronounce the proper judgment of conviction. . . . ” See also Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971); Articles 21.04 and 21.11, Vernon’s Ann.C.C.P.

We conclude that the indictment was not fundamentally defective nor subject to a motion to quash if one had been made. The contention is without merit.

The judgment is affirmed.

      . Said § 21.04 was amended in 1975 (Acts 1975, 64th Leg., p. 477, ch. 203, § 2, eff. Sept. 1, 1975). Among other things, Subsection (b)(2) was amended to read:
      “(2) the actor compels the other person to submit or participate by any threat, communicated by actions, words, or deeds, that would prevent resistance by a person of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm . . .


source: Caselaw Access Project

author: GREEN, Commissioner.

license: Public Domain

text:
    Clarence Thomas BOWLES, Appellant, v. The STATE of Texas, Appellee.
    No. 53222.
    Court of Criminal Appeals of Texas.
    May 3, 1977.

      ■ John Ellis, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds and Michael E. Keasler, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of indecency with a child. See V.T.C.A. Penal Code, Sec. 21.11(a)(2). Punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.42(d), was assessed at life.

Appellant initially says that the evidence at the guilt stage is insufficient to support the verdict. Specifically, he argues that there is no evidence that the exposure of appellant’s genitals was done “with intent to arouse or gratify the sexual desire of” appellant, as alleged in the indictment.

The complainant, a ten year old girl, testified that on Monday, December 2, 1974, about 3:30 p. m., as she was walking home from school she saw appellant sitting in a light blue automobile parked next to the sidewalk. As she was about to pass the car appellant said to her, “Look here.” She walked toward the car, and when she was about six feet from it appellant, the man in the car, raised the lower part of his body and exposed his penis to her. When she saw it, she started running toward her home, but stopped long enough to write the license number of the car on her composition book. Appellant drove off. At home she told her mother, and the police were notified. When a policeman arrived, complainant gave him the car license number.

Complainant testified further that on the Sunday afternoon before this Monday, as she passed Lukes the Spooks Lounge on her way to a store, she saw appellant in front of the lounge, and on that occasion he also exposed himself by showing his penis to her. She told her mother about that occasion, but police were not notified because “she thought it was somebody just going to the beer joint.”

Appellant did not testify, and placed no witness on the stand.

Complainant’s testimony established that she was, at the time of the offense, under 17 years of age, and was not the spouse of appellant. The jury had direct evidence that appellant, knowing she was present, spoke to her, telling her to “Look here,” and then rose up in his seat and exposed his penis, a part of his genitals, to her. She said he had also exposed it to her the day before. This Court has consistently held that under Article 535c, V.A.P.C., lascivious intent can be inferred from the defendant’s conduct, remarks and surrounding circumstances. Allen v. State, Tex.Cr.App., 478 S.W.2d 946; Dunlap v. State, Tex.Cr.App., 440 S.W.2d 672; Meredith v. State, 171 Tex.Cr. 359, 350 S.W.2d 550. In O’Neal v. State, Tex.Cr.App., 421 S.W.2d 391, 393, we quoted from Slusser v. State, 155 Tex.Cr. 160, 232 S.W.2d 727 with approval as follows:

“ . . . ‘the term lewd or lascivious manner’ means in a vulgar manner inciting sexual desire or appetite, and connotes lust, indecency, and sexual indulgence. The words ‘lewd’ and ‘lascivious’ are similar in meaning and signify that form of immorality which has relation to sexual impurity.”

We conclude that the evidence is sufficient to support the jury’s verdict that appellant exposed a part of his genitals to the ten year old complainant, knowing she was present, with intent to arouse or gratify his sexual desire. See V.T.C.A. Penal Code, Sec. 21.11(a)(2), supra.

Appellant contends the court erred in refusing to charge on circumstantial evidence, as properly requested. As stated above, there was direct evidence of the exposure to complainant by appellant. The only issue for the jury to determine by circumstances was intent. As stated in Davis v. State, Tex.Cr.App., 516 S.W.2d 157, at page 161: “It is well settled that where intent is the only issue to be determined by the circumstances a charge on circumstantial evidence is not required” citing authorities. See also Green v. State, Tex.Cr.App., 533 S.W.2d 769.

The contention is made that the court erred in refusing to charge on the lesser included offenses of indecent exposure and disorderly conduct.

V.T.C.A. Penal Code, Sec. 21.08, Indecent Exposure, provides:

“(a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.
“(b) An offense under this section is a Class C misdemeanor.”

Section 42.01(a)(10) of the Penal Code, Disorderly Conduct, provides:

“(a) A person commits an offense if he intentionally or knowingly:
“(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act.”

In Clark v. State, Tex.Cr.App., 527 S.W.2d 292, 294, we quoted with approval from McBrayer v. State, Tex.Cr.App., 504 S.W.2d 445, as follows:

“ . . . merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense.”

There is no testimony that appellant was reckless about the presence of another; the only testimony on the subject established that he intentionally exposed himself to complainant after calling her to “Look here.” The court did not err in refusing to charge on the lesser included offenses of indecent exposure and disorderly conduct.

In two grounds of error, appellant contends the court erred in entering a nunc pro tunc order during the punishment stage of the trial reforming the sentence in the prior conviction alleged in paragraph three of the indictment for enhancement of punishment and that the evidence at the punishment stage does not support the verdict.

The sentence in said prior conviction recited the punishment as “confinement in the Texas Department of Corrections for not less than 2 nor more than 4 years.” (Emphasis added). The conviction was for exposing with lascivious intent appellant’s private parts to a female child under sixteen years. See Art. 535c, V.A.P.C. Section 2 of that article at the time of the conviction in 1969 provided:

“Any person violating this Act shall be guilty of a felony, and shall upon conviction be punished by confinement in the county jail for a period of not to exceed two (2) years, or by confinement in the penitentiary for any term not to exceed fifteen (15) years.”

When the papers in the penitentiary packet reflecting this conviction were offered in evidence, appellant objected because the sentence was null and void “with respect to the Indeterminate Sentence Act.” His particular complaint was that Section 2 of Article 535c provided no such minimum punishment as was stated in the sentence. The court responded to the objection as follows:

“THE COURT: Okay. Now, your objection is well taken to a point and I think that your objection also to some degree has been anticipated by Mr. Keasler [State] who has just handed me an order which I signed and I am going to have — I am going to have signed the order nunc pro tunc. . . . Having signed the order which I now make a part of State’s Exhibit No. 5, I will overrule your objection and State’s Exhibit No. 5 is admitted into evidence.”

The nunc pro tunc order to which appellant also objected reformed the sentence “by deleting the words ‘not less than two’ and substituting the words ‘not less than one day.’ ”

The judgment reflects that the punishment assessed in the case was four years. Under the indeterminate sentence law, Art. 42.09 V.A.C.C.P., the minimum is “the time provided by law as the lowest term.” An error in reciting the minimum punishment in the sentence does not render the sentence void, as contended by appellant, since the above statute fixes the minimum as a matter of law. Such error may be corrected by the trial court nunc pro tunc after a hearing, Cazares v. State, Tex.Cr.App., 488 S.W.2d 455, or, if the conviction is appealed by this Court on appeal. Turner v. State, Tex.Cr.App., 485 S.W.2d 282. We need not determine whether the trial court erred in entering the nunc pro tunc order without a hearing. It has been the consistent holding of this Court that a judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked. Hughes v. State, Tex.Cr.App., 493 S.W.2d 166; Briones v. State, Tex.Cr.App., 473 S.W.2d 39; Barker v. State, 169 Tex.Cr. 277, 334 S.W.2d 182; Ex parte King, 156 Tex.Cr. 231, 240 S.W.2d 777; Lenore v. State, 137 Tex.Cr. 417, 129 S.W.2d 657.

Since the sentence was not void because it erroneously recited the minimum punishment and since it could have been reformed by proper nunc pro tunc proceedings, it was not subject to being collaterally attacked at the punishment phase of the instant trial. Hence, regardless of error, if any, in correcting the sentence without proper hearing, the proof of the two prior convictions, shown to meet the requirements of V.T. C.A. Penal Code, Sec. 12.42(d), sufficiently supported the jury’s verdict at the punishment stage. Appellant’s contentions to the contrary are overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . “21.11. Indecency with a child

      “(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he

      “(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.
      * * * * * *
      “(c) An offense under this section is a felony of the third degree.”

      . See V.T.C.A. Penal Code, Sec. 6.02.

      . There was no appeal in either conviction used for enhancement in the instant case.


author: ROBERTS, Judge.

text:
    Ex parte Joseph Dennis FONTENOT.
    No. 54308.
    Court of Criminal Appeals of Texas.
    May 3, 1977.

      Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

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

Petitioner was convicted of the offense of robbery by assault in Cause No. 196616, with a prior conviction alleged for enhancement under Article 62, V.A.P.C., and was sentenced to the mandatory life term in prison on August 23, 1973. An appeal of that conviction was affirmed in a per cu-riam opinion.

Petitioner filed an application for writ of habeas corpus in the trial court, alleging that the indictment for robbery by assault was fatally defective for failing to allege ownership of the property. The trial court entered findings of fact and conclusions of law recommending that the writ be denied.

The indictment in the case at bar alleges that petitioner

“. . . heretofore on or about April 14, 1973, did then and there unlawfully assault Lois Hartis hereafter styled the Complainant, and did by the assault, by violence, and by putting the Complainant in fear of life and bodily injury, fraudulently and against the Complainant’s will, take from the person and possession of the Complainant money with the intent to deprive the Complainant of the value of the property and to appropriate it to the Defendant’s use.”

The indictment in the case at bar is fatally defective for failing to allege ownership in the complainant. See Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975).

In addition, petitioner may challenge the validity of a fundamentally defective indictment by way of a post conviction writ of habeas corpus. See Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1977); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1977); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

For the reasons above stated, the writ of habeas corpus is granted and the conviction in Cause No. 196616 is set aside and said indictment is ordered dismissed.


author: DALLY, Commissioner.

text:
    Ex parte Raymond Garza VALDEZ.
    No. 54737.
    Court of Criminal Appeals of Texas.
    May 3, 1977.

      Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction habeas corpus proceeding brought under the provisions of Article 11.07, V.A.C.C.P. The appellant was convicted of the offense of burglary under the provisions of the former Penal Code, Article 1390, V.A.P.C., 1925. His punishment, which was enhanced by two prior felony convictions, is imprisonment for life.

The appellant urges that the indictment under which he was convicted is fundamentally defective and is therefore subject to collateral attack. See Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). The pertinent part of the indictment alleges that on or about the 14th day of July, 1973, the appellant

“ . . . did then and there unlawfully break and enter a house owned by Alfred Costello, hereafter styled the complainant, with the intent fraudulently to take therefrom corporeal personal property of the complainant and with the intent to deprive the complainant of the value of the property and to appropriate it to the defendant’s use and benefit . . . ”

Under the former Penal Code an indictment for burglary with the intent to commit theft was fundamentally defective if it failed to allege that the accused intended to take the property without the consent of the owner. See Treadwell v. State, 16 Tex.Cr. 643 (1884); Fox v. State, 61 Tex. Cr.R. 544, 135 S.W. 570 (1911); Toder v. State, 99 Tex.Cr.R. 337, 269 S.W. 1043 (1925); cf. Martini v. State, 116 Tex.Cr.R. 58, 32 S.W .2d 654 (1930); Mitchell v. State, 118 Tex.Cr.R. 77, 37 S.W.2d 1018 (1931); Garrett v. State, 118 Tex.Cr.R. 71, 43 S.W.2d 120 (1931); Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988 (1935). Also see and compare Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975), which holds that under the new Penal Code (1974) an indictment charging the offense of burglary with the intent to commit theft need not allege the elements of theft.

The indictment in this case failed to allege that the appellant intended to take the property without the consent of the owner. The indictment is fundamentally defective. Treadwell v. State, supra; Fox v. State, supra; Toder v. State, supra.

The requested relief is granted, and the prosecution under this indictment is ordered dismissed.

Opinion approved by the Court.


author: PHILLIPS, Judge.

text:
    Elmer Lee WALLACE, Appellant, v. The STATE of Texas, Appellee.
    No. 54335.
    Court of Criminal Appeals of Texas.
    May 3, 1977.

      W. C. Roberts, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb and Winfield W. Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appeal is taken from an order revoking probation wherein appellant stands convicted of burglary of a building. Punishment was assessed at two years confinement in the Texas Department of Corrections.

The order revoking probation is based on a finding that appellant committed the offense of indecent exposure in violation of the term of probation (a) commit no offense against the laws of this or any other state or the United States. Officer Daniel of the Dallas Police Department testified at the revocation hearing that on September 3, 1976, he answered a disturbance call at a grocery store. “A bunch of children” at the scene told him a man started throwing bottles at them and cursing them, knocking some kids down. The children pointed toward an alley and when Officer Daniel looked in that direction he saw appellant holding a female by the arm. Daniel said appellant was pulling the girl toward the alley and she was resisting. Daniel then noticed appellant “had his penis out” and “he reached over and touched it”. Daniel stated he was offended and alarmed by what he saw. Because Daniel believed a rape was occurring, he returned to his patrol car and proceeded toward the location when he saw appellant walking by himself, down the street. As Daniel emerged from the patrol car, appellant put his hands up and said, “You got me wrong, I wasn’t going to rape her.” Daniel later returned to the girl, who appeared to be 12 or 13 years old, and she said the man was trying to drag her into the alley.

Appellant’s complaint on appeal is the State’s motion to revoke probation failed to allege an offense against the laws of this or any other state.

“It has been repeatedly held that where revocation is based upon a violation of the probationary condition not to violate the law the allegations of the motion to revoke probation need not be as precise as those of an indictment, but should give fair notice and allege a violation of the law.” Acton v. State, Tex.Cr.App., 530 S.W.2d 568, 570, and authorities cited therein.

The motion to revoke probation alleged on September 3, 1976, appellant “did then and there recklessly expose his genitals in the presence of Danny Daniel, who was offended and alarmed by said exposure, with intent to arouse and gratify the sexual desire of the said Elmer Lee Wallace.”

Appellant contends because there is no allegation as to whom the exposure was made the motion to revoke does not allege an offense. Although this objection was raised in the trial court, appellant did not voice his objection at the time he pleaded not true. The complaint here presented was not raised until the conclusion of the evidence. The objection being untimely, the trial court did not abuse its discretion in overruling appellant’s complaint. Grantham v. State, Tex.Cr.App., 547 S.W.2d 286; Ausborne v. State, Tex.Cr.App., 499 S.W.2d 179. Cf. Garner v. State, Tex.Cr.App., 545 S.W.2d 178.

Further, we find to whom the exposure is directed is not an essential element of the offense of indecent exposure. The elements of the offense are:

(1) a person

(2) exposes his anus or any part of his genitals

(3) with intent to arouse or gratify the sexual desire of any person

(4) and he is reckless about whether another is present who will be offended or alarmed by his act.

Although it is better practice to plead, where applicable, an accused exposed himself to a specified person or persons, failure to allege this would not render an indictment or information fundamentally defective.

There being no showing of an abuse of discretion, the judgment is affirmed.

ROBERTS, J., concurs in the results.

      . Indecent exposure is defined in V.T.C.A., Penal Code, Sec. 21.08, as follows: “(a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.”

      . See Morrison and Blackwell, New Texas Penal Code Forms (1973), Sec. 21.08 at page 19; 2 Tex.Ann. Penal Statutes, Branch’s 3rd Ed. (1974), Sec. 21.08 at page 149.


author: ODOM, Judge.

text:
    David Joe KERNS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52670 to 52673.
    Court of Criminal Appeals of Texas.
    May 3, 1977.

      Neal B. Wheeler, Dallas (Court-appointed on appeal), for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, Robert E. Whaley and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

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

Appellant was convicted for the murder of four persons. He was assessed punishment at life imprisonment for each offense.

Appellant first asserts that the trial court committed reversible error when it failed to instruct the jury that Joseph Arnwine, a State witness, was an accomplice witness as a matter of law. Article 38.14, V.A.C.C.P., provides:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

The question of whether Arnwine was an accomplice witness was submitted as a fact issue to the jury. We, however, conclude that Arnwine was • an accomplice witness as a matter of law and the court erred when it refused to so instruct the jury.

Appellant was convicted for murdering Betty Cannon, James Bradley Cannon, James Walker and Michelle Walmer. Arn-wine was indicted for the murder of Betty Cannon. Arnwine, thus, was a co-indictee to the same offense as that committed by appellant and it was error for the court not to instruct the jury that he was an accomplice witness as a matter of law. Creek v. State, Tex.Cr.App., 533 S.W.2d 794; McCloud v. State, Tex.Cr.App., 527 S.W.2d 885; Hendricks v. State, Tex.Cr.App., 508 S.W.2d 633.

Arnwine’s testimony and the record also compel us to conclude that he was an accomplice witness as a matter of law with regard to the other three offenses. He implicated himself in all of the offenses appellant was charged with committing. The State could have prosecuted him for all four murders. See, Easter v. State, Tex.Cr.App., 536 S.W.2d 223.

The question before us is whether the court’s failure to instruct the jury that Arnwine was an accomplice witness as a matter of law constitutes reversible error. In Gonzales v. State, Tex.Cr.App., 441 S.W.2d 539, at 54—542, we stated:

“It appears from these cases that where the court submits to the jury the fact question of whether a certain State witness is an accomplice witness when the evidence was such as to justify a charge that such witness was an accomplice witness as a matter of law, and proper objection is reserved, the error does not require reversal unless the testimony of the witness is essential to the State’s case (a) because, if the witness is in fact an accomplice, there is no evidence to corroborate his testimony, or (b) because, without the testimony of the witness . . . there is insufficient evidence to support a conviction or (c) because it is the sole corroboration of the testimony of another accomplice.” (Also see Cranfil v. State, Tex.Cr.App., 525 S.W.2d 518; Bentley v. State, Tex.Cr.App., 520 S.W.2d 390.)

We must ascertain whether there is sufficient evidence to support the convictions after Arnwine’s testimony is excluded from consideration.

The offenses occurred in the early morning hours of April 27, 1974. Mitchell Pen-land testified that he went to appellant’s apartment in the early evening of April 26, 1974, and that the appellant and Betty Cannon argued about appellant’s relations with another woman. Penland left after this argument started.

He returned the next afternoon and saw a trail of blood leading from the parking lot up the apartment building’s stairs to the appellant’s residence, and blood smeared on the door of appellant’s apartment. Inside he noticed bloodstains on the carpet and the wall. The appellant asked him to help clean up the apartment.

Two hours after Penland arrived at the apartment, the appellant stated: “Mitchell, I killed them. I killed them all,” and, “Mitchell, I promise you no one suffered.” Appellant also stated that he had shot them in the head with a .38 and that he dumped the bodies in a stream but that he did not have time to weight the bodies down. The appellant asked Penland to return to the stream and help him accomplish this task.

Other evidence established that three of the victims died from .38 caliber gunshot wounds to the head. Betty Cannon was killed by several shots in the left chest area.

Loretta Padgett, a half-sister of Arnwine, testified that she picked up appellant from the Interstate 30 bridge over Lake Ray Hubbard early on the morning of April 27 and drove him, accompanied by Arnwine, back to his apartment. The bodies surfaced near this point a few days later. One of the appellant’s crutches was found washed ashore less than one mile north, of this point, and the other crutch was found in his apartment.

A friend of Betty Cannon’s testified that she phoned him at 2:30 on the morning of April 27 and told him she and appellant were fussing and fighting and asked him to bring a gun to the apartment. (We consider this not for the truth of the matter stated, but for the fact that such statements were made.) When he phoned back ten minutes later there was no answer.

We conclude that the evidence, excluding Arnwine’s testimony, is sufficient to support the convictions. The physical evidence demonstrates that four murders occurred. There is evidence proving that some of the victims were killed in appellant’s apartment. Appellant was seen, on the day of the offense, at the lake near where the bodies of the victims were discovered. Furthermore, appellant’s statements to Penland are highly inculpatory. See, McGilvery v. State, Tex.Cr.App., 533 S.W.2d 24.

The failure of the trial court to instruct the jury that Arnwine was an accomplice witness as a matter of law did not result in reversible error. Gonzales v. State, supra. Appellant’s contention on this matter and his assertion that Arnwine’s testimony was not corroborated are overruled. We also overrule appellant’s contention that the evidence is insufficient to support the findings of the jury.

Appellant complains that the trial court erred in failing to instruct the jury that Mitchell Penland, Loretta Padgett and Earl Watson were accomplice witnesses as a matter of law. He contends that he was entitled to this instruction because these witnesses helped Arnwine conceal the crime.

The record reflects that Penland attempted to wash the bloodstains from the areas around and in the appellant’s residence. Padgett helped Arnwine dispose of his bloody clothes and the murder weapon. She also drove Arnwine back to the bridge in order that he might retrieve his truck which had run out of gas. Watson burned Arnwine’s bloody clothes and threw the murder weapon into a creek. All of these actions occurred after the victims were killed. None of these witnesses were aware of who was killed or who did the killing.

In Easter v. State, supra, we made the following statements:

“A witness is not deemed an accomplice witness because he or she knew of the crime but failed to disclose it or even concealed it.” 536 S.W.2d at 225.
“And it appears to be well settled that one is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged.” 536 S.W.2d at 227.

Penland, Padgett and Watson were not accomplice witnesses. They could not have been prosecuted for the murder of the four victims. Easter v. State, supra.

The tenth ground of error claims that the court allowed improper and prejudicial hearsay testimony to be admitted in evidence. Lee Thompson, a witness for the State, testified that Betty Cannon called him in the early morning hours of April 27, 1974, the date of the offenses. Cannon told him who was at the apartment, that one of appellant’s friends had brought some guns to the residence and that she and appellant had been fighting.

Appellant’s objection to Thompson’s testimony at trial was that the State had failed to lay the proper predicate for introduction of this testimony. He did not object to the testimony on the ground that it was hearsay, as alleged in his brief on appeal. Bouchillon v. State, Tex.Cr.App., 540 S.W.2d 319; Arivette v. State, Tex.Cr.App., 513 S.W.2d 857.

Furthermore, the identities of the persons in the apartment on the day of the offenses, the fact that one of appellant’s friends had brought guns to the residence, and the fact that Betty Cannon and appellant had been fighting were all established by other competent and admissible evidence which was not objected to. See, Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169. No injury has been shown. Myre v. State, 545 S.W.2d 820 (1977); Cunningham v. State, Tex.Cr.App., 500 S.W.2d 820.

The eleventh ground of error asserts that the trial court erred in admitting prejudicial hearsay testimony from members of appellant’s family. The part of the record objected to, however, contains no testimony from a member of appellant’s family.

Appellant appears to be objecting to the following testimony entered by Loretta Padgett:

“He (Arnwine) told me, if anything ever happens to me, don’t forget that boy, his name is David Kerns.”

We perceive no reversible error in the admission of the testimony.

Appellant next complains that the trial court erred in permitting the State to introduce evidence tending to establish the good reputation of one of the victims, James Cannon. Anita Deason testified that James Cannon paid his mother’s rent.

The objection to this testimony was sustained and the jury was instructed to disregard this statement. No further relief was requested. No adverse ruling was obtained and no reversible error is presented. Hunter v. State, Tex.Cr.App., 530 S.W.2d 573.

Staff Sergeant G. W. Pope testified that James Cannon was a good soldier. Appellant complains of this testimony on appeal, but he failed to object to it at trial. Error is not preserved for our review. Ground of error number twelve is overruled.

The thirteenth ground of error asserts error was committed by the following argument to the jury:

Prosecutor: “. . . you know, we could not call Blackie to that stand. But if Blackie, Donnie Horton had taken that stand and answered questions for those men and for me, you would know for certain whether or not Arnwine was lying or whether this man (appellant) was lying about who took that’ third body down those stairs.”
Appellant’s counsel: “Your Honor, I am going to object to the prosecutor arguing outside the record and anticipating testimony that does not exist.”
Prosecutor: “I submit to you that Blackie was not called as a witness in this case by these men, (appellant and his counsel) who could have called him if they had wanted him in here — they sure didn’t want him in here.”
Appellant’s counsel: “Judge, we’re going to object to that on the grounds that he has the same subpoena power that this Defendant does. He could have brought him down here.”
Prosecutor: “Ladies and gentlemen, that is not so. If we had subpoenaed Blackie down here and put him on the stand and asked him one question, he could have took the Fifth Amendment. This case would have automatically had reversible error, if I knew he was going to do that when I put him on there. You were told that in voir dire.”
Appellant’s counsel: “I’m going to object on the grounds that he is going outside the record because there is no evidence that Blackie would take the Fifth Amendment, if he did come down here.”

The objections were overruled. In order to constitute reversible error, a jury argument must either be extreme or manifestly improper, or inject new and harmful facts into evidence. Thomas v. State, Tex.Cr.App., 519 S.W.2d 430; Minter v. State, Tex.Cr.App., 505 S.W.2d 581. We conclude that the prosecutor’s argument does not constitute such error as would compel a reversal of these causes.

The State has the right to comment on an accused’s failure to call competent and material witnesses, and this argument may be accompanied by an inference that the absent testimony would have been material and harmful to the defendant’s position. Fisher v. State, Tex.Cr.App., 511 S.W.2d 506; Winkle v. State, Tex.Cr.App., 506 S.W.2d 891, cert. denied, 419 U.S. 843, 95 S.Ct. 75, 42 L.Ed.2d 71; Simon v. State, Tex.Cr.App., 406 S.W.2d 460.

We also observe that the argument did not inject any new evidence into the record. Thomas v. State, supra; Minter v. State, supra. Arnwine and the appellant both testified and contradicted each other’s version of the offenses. Arnwine’s testimony in-eluded a statement that “Blackie” helped the appellant dispose of one of the victims. The prosecutor merely commented on the failure of the appellant to utilize “Blackie” as a witness. Fisher v. State, supra.

The comments concerning “Blackie’s” potential assertion of his right against self-incrimination were made in response to appellant’s objection. The prosecutor stated that “Blackie” “could have” asserted his Fifth Amendment protection, not that he “would have” used the Fifth Amendment protection as appellant states in his brief.

The discussion of whether a potential witness might have asserted his right to remain silent was collateral to the issues before the jury. Although objections are addressed to the judge and not the jury, and replies to objections likewise should not be addressed to the jury, we nevertheless conclude that the appellant was not prejudiced by the prosecutor’s response. We overrule this ground of error.

The next ground of error asserts that the admission of certain photographs of the victims constitutes reversible error. This contention has no merit. The photographs were pertinent to the injuries received by the victims and also to the description of the location, Lake Ray Hubbard, where the bodies were recovered. See, Vasquez v. State, Tex.Cr.App., 532 S.W.2d 338; Fazzino v. State, Tex.Cr.App., 531 S.W.2d 818; Brantley v. State, Tex.Cr.App., 522 S.W.2d 519.

Ground of error fifteen states that the trial court erred when it overruled appellant’s motion to take the deposition of Loretta Padgett. The record reflects, however, that the appellant did not secure an adverse ruling from the trial court on this motion. Indeed, he failed to secure any ruling from the trial court on this motion. Error is not preserved for our review. Weir v. State, Tex.Cr.App., 503 S.W.2d 571; Torres v. State, Tex.Cr.App., 491 S.W.2d 126. This ground of error is overruled.

Ground of error sixteen complains of a remark the prosecutor made during cross-examination of the appellant. Appellant was asked whether his attorneys were appointed or retained. After discovering that the attorneys were retained, he stated:

“Well, Betty Cannon didn’t hire them (appellant’s attorneys), we can be fairly sure of that.”

The objection to this improper comment was promptly sustained and the prosecutor did not pursue the matter. No reversible error is shown.

Appellant also states that reversible error was committed when the prosecutor asked appellant if he were a pimp. The record reflects no objection to this question; therefore, error is not preserved. Fazzino v. State, supra; Rich v. State, Tex.Cr.App., 510 S.W.2d 596.

Furthermore, appellant stated that he had been convicted for pandering and that Betty Cannon, the woman he had lived with, was a prostitute. This ground of error is without merit.

The next ground of error asserts that a motion for mistrial should have been granted because of the following cross-examination of appellant’s wife:

“Q. When did you talk to him (appellant) then next?
“A. It was on Tuesday morning.
“Q. You talked to him on Tuesday morning when he was arrested?
“A. No, before he was arrested.
“Q. Oh. Did he come over to your house?
“A. No, sir, he called me on the phone.
“Q. On Tuesday morning before he was arrested?
“A. Yes.
“Q. What did he say to you — be sure you tell this story — ”

Appellant maintains that this statement implied that the appellant instructed his wife to tell a certain story to the authorities. Objection to this, question was sustained and the jury was instructed to disregard the statement. The instruction to disregard was sufficient to cure any error. Pringle v. State, Tex.Cr.App., 511 S.W.2d 35.

Appellant’s eighteenth contention claims that the trial court erred in allowing the State to bolster the testimony of Joseph Arnwine. Arnwine’s testimony established that he thought he was going to be killed and that he was relieved to have been imprisoned in a single cell in the jail.

Carl Rowland, the chief jailer at the Dallas County Jail, testified in the following manner:

“Q. Would you tell this jury whether or not Joe Arnwine has been kept in a single cell secluded and away from other prisoners?
“A. That is true. He has been ever since he’s been in the Dallas County Jail.
“Q. For what reasons has that been done?
“A. The word—
“Q. No, not the word. Don’t say the word.”
Appellant’s counsel: “Your Honor, at this time we would object to this witness testifying on the grounds that it is not proper rebuttal and an attempt to bolster the State’s witness, Arnwine.”

The court overruled this objection. This testimony, however, did not bolster the evidence introduced by Arnwine.

Appellant also contends that another State witness, Charles Franklin, bolstered the testimony of Arnwine. No objection, however, was made to Franklin’s testimony on this basis.

The following contentions arise from appellant’s motion for new trial and the hearing held thereon.

Appellant claims that he was denied due process of law and compulsory process because the State was responsible for the nonattendance of a material witness, Joseph Arnwine, at the hearing held on the motion for new trial. Arnwine was released on personal bond. He was subpoenaed by the trial court for purposes of the hearing. The subpoena, however, was returned unserved because Arnwine had left town.

The record reflects that the State was not responsible for Arnwine’s failure to appear at the hearing held on the motion for new trial. Compare, White v. State, Tex.Cr.App., 517 S.W.2d 543.

Hearsay evidence was introduced by the appellant to show that the prosecutor had advised Arnwine that Dallas was not a safe town and he should leave. But, the record also demonstrates that the prosecutor instructed Arnwine to inform the State of his whereabouts so that he could make the necessary court appearances. Arnwine failed to do this.

Appellant has not established that Arn-wine’s failure to appear was brought about by improper action attributable to the State. White v. State, supra. The nineteenth ground of error is overruled.

The next ground of error also concerns Arnwine’s failure to attend the hearing held on appellant’s motion for new trial. Appellant insists that his motion for continuance made at the hearing should have been granted because of the failure to secure the attendance of Arnwine.

After hearing argument and reviewing the appellant’s affidavits, the court denied the motion for continuance. The judge stated that he denied the motion because there was nothing in the record before him to demonstrate or indicate when the attendance of Arnwine could be secured. No one knew where Arnwine was located, nor did anyone know how to contact him.

The trial court did not abuse its discretion in denying the motion for continuance. The court reached its conclusion only after it reviewed the circumstances before it and determined that a continuance would not aid in securing Arnwine’s attendance. We will not disturb the findings of the trial court on this issue. Cf. Chance v. State,

Tex.Cr.App., 528 S.W.2d 605. We overrule this ground of error.

The final ground of error argues that the trial court erred when it failed to grant appellant’s amended motion for new trial based upon the newly discovered evidence that Arnwine had been rewarded for entering evidence against the appellant. Arnwine was rewarded, according to appellant, because he did not have to post a cash bond in order to be released from custody.

At the hearing held on the motion for new trial both the prosecutor and Arn-wine’s attorney testified that no “deal” had been made with Arnwine. This testimony was undisputed. No material evidence, therefore, was suppressed from the jury during the trial.

Appellant has failed to establish his allegations. The mere fact that Arnwine was released on personal bond would not have brought about a different verdict at a new trial. See, Hayles v. State, Tex.Cr.App., 507 S.W.2d 213. The final ground of error is overruled.

The judgments are affirmed.

      . It appears from the record that Arnwine was involved with certain “underworld” figures in Dallas. He was fearful of them due to his participation in the events surrounding the of-tenses committed in the case at bar. The record also demonstrates that there was a “contract” out on Amwine’s life.


author: WALTER, Justice.

text:
    Bobby Joe DUDLEY, Appellant, v. FARMERS BRANCH DAILY TIMES et al., Appellees.
    No. 4994.
    Court of Civil Appeals of Texas, Eastland.
    March 17, 1977.
    Rehearing Denied May 5, 1977.
    Guy W. Rucker, Richardson, for appellant.
    Douglas B. Owen, Law, Snakard, Brown & Gambill, Ft. Worth, for appellees.
   WALTER, Justice.

Times Chronicle Newspapers, Inc., publisher of Farmers Branch Daily Times, recovered a summary judgment against Bobby Joe Dudley and Dudley appeals.

In his libel suit against the defendant, Dudley alleged it published the following article:

“. . . (Bold face headline reads ‘2 Charged with $168,000 Theft’. The Article then reads ‘Two Dallas County Men have been charged with theft in connection with the disappearance of an estimated $168k 000 worM of polyethylene resin material from the Arrow Industries, Inc. plant at 2625 Belt Line Road in Car-rollton. Bobby Joe Dudley, 36, of 2766 Cooks Creek Place, Apt. 106, Carrollton, was arrested Sunday. He posted $5,000 bond and has been released.’ . . .”

The defendant pleaded absence of libel to plaintiff as a matter of law, privileged under the common law and Art. 5432 of Tex. Rev.Civ.Stat., affirmative defense of truth, freedom of press and a general denial.

Bobby Joe Dudley testified by deposition substantially as follows:

I am the plaintiff in this lawsuit. I also have filed a lawsuit against Marcus Rosenberg and Arrow Industries for filing charges against me for theft.

The instrument marked Exhibit “A” is a copy of the Article appearing in the paper on January 30, 1974 which is the basis of my lawsuit against the Times. I will go through it and point the inaccurate portion of the article. We will start out with the headlines. That is a lie. I was never charged with theft of $168,-000.00, but I was charged with theft. The thing wrong with the headline is the figure of $168,000.00. I heard the figure $168,000.00 used by two County sheriffs who picked me up. They wanted to know what we had done with the $168,000.00 worth of polyethylene resin that was “supposed to be stole”. So when I saw this in the paper, it was not the first time I had heard that figure.

The main thing I am concerned with in this lawsuit is:

“It’s the headline right there. ‘Two charged with $168,000.00 theft.’ I mean, I don’t see no reason for blowing it up there.”

I was charged with theft of 62,660 pounds of polyethylene resin pellets and scrap. The complaint against me charged:

“ ‘Did unlawfully and fraudulently take 62,660 pounds of polyethe lene pellets and scrap at the value of $6,655.50. And being the total value of over $50.00, the same being the corporeal personal property of Marcus Rosenberg, hereinafter styled Complainant, and without the consent of said Complainant, and with the intent to deprive the Complainant of the value thereof, and with the intent to propriate it to the use and the benefit of him, the said Defendant.’ ”

This material is worth about 10<p per pound. I was indicted for this alleged offense, however, all charged have now been dropped by the district attorney’s office.

We hold the summary judgment was proper under Subdivisions 1 and 4 of Art. 5432, Tex.Rev.Civ.Stat, which are as follows:

“Art. 5432. Privileged matters
The publication of the following matters by any newspaper or periodical shall be deemed privileged and shall not be made the basis of any action for libel.
1. A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of same when in the judgment of the court the ends of justice demand that the same should not be published and the court so orders, or any other official proceedings authorized by law in the administration of the law.

4. A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.”

In Fort Worth Press Go. v. Davis, 96 S.W.2d 416 (Tex.Civ.App., Port Worth 1936, writ ref’d), the court said:

“Analyzing the settling basin editorial, we find that all of the statements therein are shown by the evidence to be true, excepting the statement ‘it swallowed $80,000 of the money of Fort Worth taxpayers.’ What is the charge then that is being made? A waste of the taxpayers’ money in the settling basin project. There is no more opprobrium attached to or charged by saying that $80,000 of the .taxpayers’ money was wasted in this project than there would be should the charge have been made that $17,500 of the taxpayers’ money was wasted. If one were charged in an article with embezzling $80,000 or with a swindle involving such sum, and because of the publication of such purported facts, a libel suit should be brought, a complete answer to the cause of action is that the proof indisputably showed an embezzlement of or a swindle in the sum of $17,500. That this is the law, we do not believe any one will question.”

We have considered all of appellant’s points of error and find no merit in them. They are overruled.

The judgment is affirmed.


author: CIRE, Justice.

text:
    T.D.E., Appellant, v. CHRISTIAN CHILD HELP FOUNDATION, Appellee.
    No. 1588.
    Court of Civil Appeals of Texas, 14th Supreme Judicial District.
    March 30, 1977.
    Rehearing Denied April 20, 1977.
    Ron Etzel, Law Offices, Lloyd Lunsford, South Houston, for appellant.
    Susan W. Crump, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
    Helen A. Cassidy, Houston, for amicus curiae.
   CIRE, Justice.

This appeal is from a decree terminating a parent-child relationship.

In October 1974 the child Baby Boy T. was born to H.T. The mother was not married. One week later, H.T. executed an affidavit of relinquishment of parental rights, stating that the child was not the legitimate child of its father, surrendering the care, custody, and control of the child to Christian Child Help Foundation, and designating the Foundation as the managing conservator of the child. She also executed an affidavit of status naming T.D.E. as the father and stating that she had never been married to him or attempted to marry him.

At the end of November 1974 the child was placed with a couple serving as foster parents, with whom the child still lives and who hope to adopt him. In that same month the Foundation brought this suit to terminate the parent-child relationship between the infant and its mother. The Foundation’s petition stated that it believed T.D.E. would waive his rights in and to the child. The Foundation was appointed guardian ad litem and the court set a date for hearing evidence concerning the termination of parental rights and appointment of a managing conservator. However, prior to the hearing, T.D.E. filed a petition for voluntary legitimation of the child. He also sought appointment as the infant’s managing conservator. Attached to the petition was a statement admitting paternity of the infant. The Foundation then amended its petition. It contested the legitimation of the child and sought termination of the rights of the father under section 15.-02(1)(E) of the Texas Family Code Annotated (Supp.1976), claiming: that T.D.E. had “engaged in conduct which endangers the physical or emotional well-being of the child” and that termination was in the best interest of the child. On August 10, 1976 the Juvenile Court of Harris County did enter an order declaring the parent-child relationship to exist between appellant and the infant and then proceeded to trial before a jury on the Foundation’s suit to terminate the parent-child relationship.

The baby’s mother testified as to the circumstances leading up to his birth. In June 1973 H.T. and T.D.E. were employees of the same company when T.D.E., who usually worked elsewhere, was assigned to duty in the building where she worked. T.D.E., who was married and had two children, arranged to be introduced to her at a motel club. They began dating frequently until March 1974, when T.D.E. left his wife and they moved into an apartment together. He did ask her to marry him when he got a divorce. At the end of March he moved out of their apartment without telling her and returned to his wife and children. He later called her and told her that he had been given a promotion and felt it would be bad for his position to be living with someone other than his wife. During part of this period she used no form of contraception because she did not believe that she was able to conceive. She said T.D.E. never inquired whether she used contraceptives. In April 1974 she discovered she was pregnant. She testified she felt abandoned by T.D.E. and ashamed, and that T.D.E. was not interested in the child. She concealed her pregnancy from those at work. On cross-examination she admitted she would not have told T.D.E. she was pregnant had he asked.

T.D.E. testified that H.T. knew from their first meeting that he was married. He testified he told her he loved her. Because he and his wife were not getting along, his wife asked him to leave their home, at which time he moved into the apartment with H.T. He denied telling H.T. that he would marry her. He admitted being afraid that his position at work might be affected by his affair and said his boss had talked to him about the matter. After leaving H.T. he called her to tell her he was returning home, but never called after that. He said the first he knew of the child was in October 1974, when the Foundation contacted him to secure a waiver of his parental rights. He had no idea H.T. might be pregnant and said she had told him she had been using oral contraceptives. Upon being interviewed at the Foundation by a case worker, he admitted having relations with H.T., but was cautious concerning any admission of paternity. He was given a release of parental rights at that time but refused to sign, saying “there’s no way that I would ever give one of my children away.” He and his wife discussed the possibility of voluntarily relinquishing his rights in the child, and he said his wife felt strongly that he should not do so. He said that he would have offered to help support the child had he known of it. He also said he would give up the child if he felt it was in the child’s best interest. His wife did not testify.

Betty Althaus, the Foundation’s director of professional services, testified that the baby was born prematurely, was suffering from fetal distress, and that at the time of birth there was some question of his survival. He was in intensive care for a week after birth.

Dr. Robert E. White, a psychiatrist, testified at length on the subject of the child’s growing attachment to the “nurturing parents” — those adults who acted as his parents in caring for him — and that separation at 22 months, the baby’s age at the time of trial, would cause overwhelming anxiety, which would be traumatic and damaging. He reported on an interview he had conducted with the foster parents and Baby Boy T. and offered the opinion that the child was in a very healthy environment. Using a hypothetical based upon the facts of the case he offered the opinion that a woman in H.T.’s position would feel depressed, rejected, abandoned, anxious, and concerned about her future, that the child would reflect that anxiety, and that the mother might not take proper care of herself, thus causing harm to the fetus. Finally, in relation to the hypothetical, he testified that if the child was taken away from his present environment his emotional well-being would be endangered.

The case was submitted to the jury on two special issues and this instruction:

“In connection with this special issue, you are instructed that you shall not consider whether respondent, T.E., knew or intended that his conduct would endanger the said welfare of the child, Baby Boy T., if there was in fact any such conduct on respondent’s part that would endanger such welfare of the said child.”

In answer to the first special issue, the jury found that T.D.E. engaged in conduct which endangers the physical or emotional well being of Baby Boy T. In answer to the second issue, the jury found it would be in the best interest of the child to terminate the parental rights of T.D.E.

T.D.E. appeals on five points of error. He challenges only the jury’s finding in their answer to the first special issue. Points one, two, and three attack the judgment on the grounds that there is no evidence to support the submission of the first special issue to the jury and that there was insufficient evidence to support the jury’s affirmative answer to it. We disagree.

Justice Reavley in the case of In the Interest of K, 535 S.W.2d 168, 170 (Tex.Sup.), cert. denied, 429 U.S. 907, 97 S.Ct. 273, 50 L.Ed.2d 189 (1976) stated:

Sec. 15.02(1) was drafted in 1973 without thought of a biological father who terminated his relationship with the mother and the expected offspring nine months prior to the birth of the child. It may be questioned whether the trial court was restricted to these specific grounds of 15.-02(1) if the father (even if a “parent”) were totally unfit to hold any responsibility or control of the child — even though it might not be said that he has yet engaged in conduct which has endangered the child.

Here, however, we have a case where the father has actually engaged in conduct which endangered the “physical or emotional well-being of the child.” As shown by the medical testimony, a fetus may suffer from conduct directed at its mother during gestation. There is evidence that damage actually occurred to the child because of the mother’s anxious and depressed condition, for which T.D.E.’s conduct was largely responsible. Moreover, T.D.E. now attempts to disrupt the child’s life a second time, by taking him from a healthy, loving environment in which he has flourished, a course of action which the testimony established will almost certainly cause anxiety and trauma to the child. These points are overruled.

Point of error number four asserts the trial court erred in submitting to the jury the instruction quoted above, for the reason that this instruction allowed the jury to consider the illegitimate status of the child as conduct which endangered the emotional or physical well-being of the child in violation of the equal protection clause of the 14th amendment to the U.S. Constitution. This argument is untenable and the point is overruled. The instruction had nothing to do with the illegitimacy of the child. It was a correct statement of the law. Knowledge or intent on the part of the parent to engage in conduct which would endanger the well-being of the child is not required. Carter v. Dallas County Child Welfare Unit, 532 S.W.2d 140, 142 (Tex.Civ.App.—Dallas 1975, no writ). It. might have been just as applicable in a case in which a husband leaves his wife whom he does not know is pregnant as in a case where a man leaves his mistress who carries the illegitimate child of which he is unaware.

The fifth point asserts it was error not to grant appellant’s motion for «judgment non obstante veredicto because the only evidence which the jury could have considered in answering special issue number one affirmatively was the illegitimate status of the child. As stated above, there was ample evidence of T.D.E.’s harmful conduct to support the jury’s answer. This point is overruled.

Affirmed.


author: MOORE, Justice.

text:
    TEXAS STATE BOARD OF PHARMACY, Appellant, v. Wallace C. KITTMAN, Appellee.
    No. 1041.
    Court of Civil Appeals of Texas, Tyler.
    March 31, 1977.

      Robert W. Gauss, Asst. Atty. Gen., Austin, for appellant.
    Charles E. Huebner, Houston, for appel-lee.
   MOORE, Justice.

This is an appeal by the State Board of Pharmacy from a temporary injunction restraining the enforcement of an order issued by the Board. The controversy originated as a result of an administrative order issued by the appellant, State Board of Pharmacy (Board), levying a fine of $2,500.00 against appellee, Wallace C. Kitt-man, and suspending his license to practice pharmacy for a period of two years all of which was probated except for a period of thirty days. The record reveals that the Board held a hearing on November 30,1976, at which time the Board found appellee guilty of all ten charges brought against him. The order of suspension was entered on December 7, 1976. Appellee did not file a motion for rehearing. On December 23, 1976, appellee instituted the present suit in the District Court of Sabine County, Texas, in the form of an appeal seeking to set aside the Board’s order. Ancillary to the suit appellee sought a temporary injunction suspending the Board’s order pending final judgment in the main suit. The Board resisted the action with a plea to the jurisdiction alleging that the court was without jurisdiction because appellee had failed to exhaust his administrative remedies by failing to file a motion for rehearing on the Board’s order as required by Section 16(e) of the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Act). After a hearing on appel-lee’s application for injunctive relief the trial court denied the Board’s motion to dismiss for want of jurisdiction and entered an order temporarily enjoining the Board from enforcing its order pendente lite. From such ruling and judgment the Board perfected this appeal.

We reverse and dismiss.

By a single point of error, the Board contends that the trial court erred in granting the temporary injunction because the District Court acquired no jurisdiction over the attempted appeal from the order of the Board. The Board takes the position that under the provisions of the Administrative Procedure Act, supra, a motion for rehearing is a prerequisite to an appeal from the Board’s order and since no such motion was filed the trial court was without jurisdiction. In reply appellee takes the position that a motion for rehearing was not required because, he contends, his right of appeal is governed solely by the Texas Pharmacy Act, Tex.Rev.Civ.Stat.Ann. art. 4542a, sec. 12(i) as amended in 1943, reading as follows:

“Revocation, cancellation, or suspension of a license shall be only after ten (10) days notice and a full hearing. Any person whose license to practice pharmacy has been refused, revoked, or suspended by the Board may, within twenty (20) days after the effective date of the order, decision, or ruling of the Board, take an appeal to any of the District Courts where said applicant resided at the time the offense was committed which resulted in the Board’s action refusing, revoking, or suspending said license.”

The Administrative Procedure Act which became effective on January 1,1976, recites that the purpose of its enactment was to provide a “uniform practice and procedure for state agencies.” As defined therein, the Board is a state agency. -The pertinent appeal provisions of the Act relating to the procedure in appealing from administrative orders are as follows:

(1) Section 16(c).
“A decision is final, in the absence of a timely motion for rehearing, on the expiration of the period* for filing a motion for rehearing, and is final and appealable on the date of rendition of the order overruling the’ motion for rehearing, or on the date the motion is overruled by operation of law. . . .”
(2) Section 16(e)
“. . .a motion for rehearing is a prerequisite to an appeal. A motion for rehearing must be filed within 15 days after the date of rendition of a final decision or order. . . .” (Emphasis supplied.)
(3) Section 19(a)-19(b)
“(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. This section is cumulative of other means of redress provided by Statute.
“(b) Proceedings for review are instituted by filing a petition within 30 days after- the decision complained, of is final and appealable. . . .”

Prior to the enactment of the Administrative Procedure Act, provisions for appeal were included in practically all laws regulating the various state agencies. It is therefore significant that when the Administrative Procedure Act was passed the legislature included the following repealer clause, to-wit:

“Chapter 274, Acts of the 57th Legisla- . ture, Regular Session, 1961, as amended (Article 6252-13, Vernon’s Texas Civil Statutes), and ,all other laws and parts of laws in conflict with this Act are repealed.”. .

The record clearly shows that thisdg an appeal from the Board’s order and not a direct attack thereon. Therefore the narrow question presented for determination in this case is whether, under existing law, a motion for rehearing is a prerequisite: to the appellate jurisdiction of the District Court in an appeal from a ruling issued by the State Board of Pharmacy. The problem appears to be one of first impression. , We hold that a motion for rehearing is now a prerequisite to an appeal.

As we interpret the language of the Administrative Procedure Act, the legislative intent is clear and unambiguous. It clearly appears that the legislature intended for the motion for rehearing to be an integral part of the administrative procedure and the failure to file the motion amounts to a failure to exhaust the administrative remedy. Section 16(c) provides that a decision becomes final and not ap-pealable in the absence of a timely motion for rehearing. Section 16(e) makes a motion for rehearing. “a prerequisite to an appeal.” Section 19(a) allows judicial review only after all administrative remedies are exhausted.

It is a settled rule of statutory interpretation that statutes which deal with the same general subject or have the same general purpose aré considered to be in pari materia and will be taken, read and construed together as though they were parts of one and the same law. The purpose of the. pari materia rule is to carry out the full legislative intent.. The rule proceeds on the supposition that several statutes relating to one subject are governed by one spirit and policy and are intended to be consistent in their several parts and provisions. 53 Tex. Jur.2d Statutes sec. 186, pp. 280-284. An act which is later in point of time controls or supersedes an earlier act, insofar as the two are inconsistent and irreconcilable and cannot both stand at the same time. State v. Easley, 404 S.W.2d 296 (Tex.1966); Commercial Std. Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930, 933 (Tex.Civ. App., Austin 1968, no writ); See 53 Tex. Jur.2d Statutes, sec. 101, p. 149.

The Administrative Procedure Act constitutes the latest legislative expression concerning the procedure to be followed in appealing from an order of a state agency. The procedure required for an appeal to the District Court is set forth in detail. Thus it appears that the legislature clearly intended to supersede the appeal provisions of the Pharmacy Act and add the requirement of a motion for rehearing as a prerequisite to an appeal. Once the provisions of the Administrative Procedure Act became effective, the appeal provisions of the Pharmacy Act became inconsistent with the legislative mandate requiring a motion for rehearing. Consequently, to the extent of the inconsistency, the former appeal provisions were repealed and superseded by the later act.

We cannot agree with appellee’s contention that because Section 19(a) of the Act provides such Section shall be “. cumulative of other means of redress provided by statute,” he is entitled to perfect an appeal under the provisions of the Pharmacy Act without the necessity of filing a motion for rehearing. Section 19(a) does not provide that the provisions thereof shall be cumulative of the requirements for appeal provided by other statutes regulating state agencies. It specifically says that such section shall be “cumulative” of other means of redress. The cumulative provision merely means that upon a judicial review the appealing party shall be afforded not only the right to challenge the order of a state agency on the grounds specified in Section 19(a), but also shall have a right to challenge the order on any other grounds provided by other statutes. For this reason the Administrative Procedure Act cannot be construed as cumulative of the appeal provisions set forth in the Pharmacy Act.

Where, as here, the legislature has provided an aggrieved party with a mandatory procedure to obtain a review of a ruling by a state agency, the doctrine of exhaustion of administrative remedies requires that resort must first be had to such procedure before the courts will entertain jurisdiction. Texas State Bd. of Pharmacy v. Walgreen Texas Co., 520 S.W.2d 845, 848 (Tex.Civ.App., Austin 1975, writ ref’d n. r. e.); Ector County Independent School Dist. v. Hopkins, 518 S.W.2d 576, 579 (Tex.Civ.App., El Paso 1974, no writ); Terry County Airport Bd. v. Clark, 378 S.W.2d 932, 933 (Tex.Civ.App., Amarillo 1974, no writ); see 1 Tex.Jur.2d Administrative Law, etc. sec. 37, p. 677; But see Cummins v. Board of Trustees of Eanes Independent School Dist., 468 S.W.2d 913, 916 (Tex.Civ.App., Austin 1971, no writ).

It is undisputed that the proceeding before the Board was a “contested case” as defined by the Act. It is likewise undisputed that appellee did not file a motion for rehearing within the time provided for by the Act. The trial court therefore acquired no jurisdiction and since the trial court had no jurisdiction, this court has none.

Accordingly, the judgment of the trial court is reversed and the cause is dismissed.