author: DALLY, Judge.

text:
    Randall Dale ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 60037.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 31, 1979.
    Rehearing En Banc Denied March 21, 1979.

      Melvyn Carson Bruder, J. Stephen Cooper and George A. Preston, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Douglas D. Mulder and Win-field Scott, Asst. Dist. Attys., Dallas, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment was assessed at death.

Appellant’s brief contains forty grounds of error in which he contends that: (1) the trial court erred in refusing to admit evidence of extraneous criminal offenses committed by the State’s chief witness, David Harris, and in restricting appellant’s cross-examination of another State witness, Teresa Turko; (2) the prosecutor improperly withheld a statement made to the police by witness Emily Miller; (3) the trial court erroneously refused to permit appellant to ask venire members certain questions during voir dire, and excused some venire members for cause in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (4) Art. 37.071, V.A.C.C.P., is unconstitutional; and (5) the evidence is insufficient to support the jury’s affirmative answer to the second punishment issue.

Appellant was found guilty of the murder of Dallas police officer Robert Wood, who was fatally shot by the driver of an automobile he had stopped for failing to have on its headlights. The shooting occurred at approximately 12:30 a. m. on November 28, 1976, in the 3400 block of North Hampton Road in Dallas.

The State’s principal witness was David Harris, who at the time of the offense and trial was sixteen years of age. Harris testified that he ran away from his home in Vidor on November 26, 1976, after stealing money and a car from the house of a neighbor. He also took with him a .22 caliber pistol and ammunition.

Harris drove to Houston, where he spent the night in a shopping center parking lot. On the morning of November 27, Harris drove to Dallas. In Dallas, Harris picked up appellant, who was hitchhiking. Harris and appellant spent the afternoon and evening of November 27 riding around Dallas in the car Harris had stolen, smoking marihuana and drinking beer. That night they went to a drive-in movie.

Harris and appellant left the movie at approximately midnight. Appellant was driving. As they drove south on the street Harris later identified as Hampton Road toward the motel at which appellant was living, they were stopped by a police patrol car. Harris, fearing that he would be identified, slumped down in the front seat so that he would not be seen. As the officer, Robert Wood, approached the driver’s window of the car, appellant reached under the front seat where he knew the pistol was located, removed the pistol, shot the officer several times, and rapidly drove away.

After the shooting, appellant drove to his motel, where he and Harris separated. Harris spent the rest of the night in a parking lot, and then returned to Vidor. Harris spent the next several days with friends, to whom he stated that he had shot a Dallas police officer. Harris testified that he made this claim in an effort to impress his friends. Harris was arrested on December 5,1976, for the theft of the car and was released to the custody of his parents. He was rearrested on December 20, after the Vidor police learned of the incriminating statements he had made with regard to the Dallas murder. Following this arrest, Harris gave a statement detailing his activities in Dallas and identifying appellant as the person who shot Wood.

Appellant, in his testimony, admitted spending the day of November 27 with Harris. But appellant claimed that he and Harris left the movie at approximately 9:30 p. m. and that they separated at a convenience store next door to his motel. Appellant testified that he returned to his motel room no later than 10:00 p. m. and was asleep there at the time of the murder. Appellant’s defensive theory was that Harris had shot Wood and was attempting to shift the blame to him.

Pursuant to a motion in limine filed by the State and granted by the trial court, evidence concerning extraneous offenses committed by Harris was first elicited outside the presence of the jury in order that a determination as to its admissibility could be made. Through Harris’ own testimony and that of other witnesses, it was established that Harris had committed several burglaries and a car theft during 1975. It was also established that Harris had been adjudicated a juvenile delinquent following another burglary in April, 1976, and was on juvenile probation at the time of appellant’s trial. The trial court ruled that this testimony was admissible, and it was subsequently introduced before the jury. However, the trial court refused to permit the introduction of testimony concerning a burglary and a robbery committed by Harris on December 4 and 5, after his return to Vidor from Dallas. We shall hereafter refer to these offenses as the “December offenses.”

Testimony concerning the December offenses was elicited from five witnesses. Harris admitted participating in both offenses. Lynn Brown and Randy Hayes, two of the friends with whom Harris was staying at that time, also testified that Harris committed these offenses. Jim Sharon Bearden, the County Attorney of Orange County, and James Jenkins, the Assistant County Attorney, testified that offense reports had been filed in their office with respect to these offenses and that a petition to revoke Harris’ probation had been prepared but not filed. Bearden and Jenkins also stated that no decision had been made whether to prosecute Harris as an adult for the offenses. Appellant contends that this testimony was admissible to establish Harris’ bias and motive for testifying against appellant.

In general, unadjudicated criminal offenses may not be used to impeach a witness in a criminal case. Art. 38.29, V.A. C.C.P. However, evidence of pending charges against a witness is admissible under certain circumstances for the limited purpose of showing bias, prejudice, interest, and motive of the witness in testifying as he did. Randle v. State, 565 S.W.2d 927 (Tex.Cr.App.1978); Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740 (1934). See also Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977). Appellant argues that the failure of the Orange County authorities to take any action against Harris based on the December offenses affords the basis for an inference that a bargain had been made with Harris in exchange for his testimony. See Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973).

An examination of the record reveals that appellant failed to preserve error with respect to the testimony of Bearden and Jenkins. After questioning both witnesses outside the presence of the jury, as required by the motion in limine, appellant failed to secure a ruling by the trial court on the admissibility of their testimony regarding the December offenses. Appellant may not complain on appeal of the exclusion of testimony in the absence of an offer of the testimony and a ruling by the trial court excluding it from evidence. Norman v. State, 523 S.W.2d 669 (Tex.Cr.App.1975); Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974).

Appellant did obtain rulings from the trial court excluding from evidence the testimony of Harris, Brown, and Hayes concerning the December offenses. However, in arguing for the admission of their testimony, appellant’s trial counsel did not raise the contention now made on appeal. The contention made before the trial court was that the evidence concerning the December offenses showed that Harris was on a criminal spree during the time period in question, and that Harris had a propensity to blame others for his own criminal conduct. The following excerpt illustrates the argument made by appellant’s counsel:

“THE COURT: Mr. White, I would like to know now, not talking about his criminal activities prior to the shooting of the police officer, I would like to know how the later commission of a burglary and a robbery by [Harris] is material to this case?
“MR. WHITE: Your Honor, I believe that our defense being that this witness —well, by his own witness is an accomplice but—that it will—that he is the perpetrator of the crime and I believe that the evidence will show he was on a criminal spree and he was committing one crime after the other.
“THE COURT: In other words, you want to show he is a criminal generally, is that right, is that it?
“MR. WHITE: Not just a criminal generally, but it’s the specific time span from November 26th to December 19th that he was on a criminal spree committing a series of related crimes.
“MR. WHITE: I believe that I have elicited from this [witness] that in relation to the burglary that he was the one that went into the residence, to the trailer and yet upon his arrest he implicated Frank Nelson, Hootie Nelson and Lynn Brown who were not people that went into the residence.
“That in the commission of the robbery he held the rifle, went inside the convenience store, committed the robbery and yet upon his being arrested and giving a statement he implicated two other participants that were not directly—
“THE COURT: It’s—
“MR. WHITE: He has a propensity of committing crimes and blaming it on the closest person at hand.”

Not only did appellant fail to urge the admission of the December offenses on the ground now urged before this Court, he made no effort to pursue the question of Harris’ bias and motive during the trial. The fact that Harris was on juvenile probation was in evidence. It was also established that by stealing his neighbor’s money and car and leaving Orange County Harris had violated the terms of his probation. It was also apparent from Harris’ description of the events of December 27 and 28 that he was a prime suspect in Wood’s murder. Despite the presence of this evidence, appellant did not cross-examine Harris with regard to the existence of any agreement he may have had with the State, nor was Har-ns asked any questions regarding his motive for testifying against appellant. Appellant did not call County Attorney Bear-den to testify before the jury, and in his questioning of Assistant County Attorney Jenkins, appellant made no inquiry into the existence of any understanding between his office and either appellant or the Dallas District Attorney. We hold that the refusal of the trial court to admit testimony concerning the December offenses was not an abuse of discretion in light of appellant’s failure to inform the trial court that the testimony was sought to show bias or motive, and the absence of any attempt by appellant to show that Harris’ testimony had been prompted by the promise or hope of favorable treatment. Cloud v. State, 567 S.W.2d 801 (Tex.Cr.App.1978); Garza v. State, 532 S.W.2d 624 (Tex.Cr.App.1976); Luna v. Beto, 395 F.2d 35 (5th Cir. 1968).

Officer Teresa Turko was Wood’s partner. Turko testified that she was standing near the right rear corner of the assailant’s car at the time Wood was shot and that she saw only one person in the car. Turko could not identify this person since she saw only the back of his head, but she did testify that appellant’s hair was the same color and worn in the same style as that of the man in the car. Turko also testified that Harris’ hair was not similar in either color or style to that of the man she saw.

Outside the presence of the jury, Turko testified that an internal affairs investigation of her conduct on the night of the shooting was conducted by the Dallas Police Department after questions were raised as to the truthfulness of her original report. Although she was not formally suspended, Turko was relieved of her duties for ten days while this investigation took place. As a result of the investigation, the charges against Turko were determined to be unfounded.

The trial court initially granted the State’s motion in limine prohibiting appellant from introducing evidence of the investigation of Turko’s conduct. Appellant contends that the trial court erred by restricting his cross-examination of Turko in this manner. However, during appellant’s cross-examination of Turko, the following exchange took place relative to the report Turko had filed pursuant to the investigation:

“Q. Did you make a further statement in connection with the Police Department investigation of the killing of Robert Wood?
“A. Yes, sir, I did.
“Q. Was that statement made by you on the 9th day of December, 1976?
“A. Yes, sir.
“Q. Did you state at the beginning of that affidavit that ‘I will also cover the additional allegations that have been surfaced since the shooting incident’?
“A. Yes, sir.
“THE COURT: Let me see you around the side of the bench, Mr. White, Mr. Mulder.
“MR. MULDER: He can put the whole thing in as far as I’m concerned. I don’t want to argue about it any more. He can put the whole thing in.
“MR. WHITE: I’m in agreement that parts of this are appropriate and parts are not. I would like to examine which parts are appropriate.
“THE COURT: Go ahead with your questions.
“MR. WHITE: I would like to take a few moments and—
“MR. MULDER: Judge, I don’t have any objection to it and don’t have any motion. As far as I’m concerned he can put the whole thing in.
“THE COURT: Are you offering the whole thing?
“MR. WHITE: No, I’m not, I’m not, Your Honor. I’m trying to abide by the terms of previous motions.
“THE COURT: What is it you want to do now, Mr. White?
“MR. WHITE: I’m trying to get Mr. Mulder to identify parts that comply with his motion. I’m going to introduce those parts only.
“THE COURT: Well—
“MR. MULDER: I’m withdrawing any motions, you can put anything you want to put in.
“THE COURT: He said he is—
“MR. MULDER: I’m withdrawing that. Put it all in if you want to.”

Despite the withdrawal of the State’s motion in limine, appellant did not question Turko concerning the internal affairs investigation. Although appellant was given the names of the officers who conducted the investigation, he did not call these officers as witnesses. We hold that the failure of appellant to offer evidence concerning the internal affairs investigation after the State withdrew its motion in limine waived any objection he might have had to the initial exclusion of this evidence. Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1976); Johnson v. State, 527 S.W.2d 525 (Tex.Cr.App.1975).

Three witnesses testified that they drove past the scene of the shooting after the assailant’s car had been stopped but before Wood was shot. Emily and Robert Miller testified that they saw only one person in the suspect car and identified appellant as that person. Michael Randall testified that he saw two people in the suspect car and identified appellant as the driver.

Each of these witnesses gave a written statement to the police soon after the shooting. In Emily Miller’s statement, she describes the assailant as “a Mexican or a very light skinned black man.” Appellant contends that, since he is neither black nor of Mexican descent, this prior statement was relevant to the issue of Emily Miller’s credibility and that the prosecutor improperly withheld the statement in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Appellant learned of the existence of Emily Miller’s statement when, three, days after she testified and after appellant had waived her further appearance, appellant’s trial counsel asked the prosecutor to see the written statements of the three identification witnesses. At this point in the trial, both sides had rested and Emily Miller had moved to an unknown address believed to be in Illinois. Given the uncertainty as to whether and when Emily Miller could be located, the trial court refused appellant’s request to introduce her statement into evidence.

Prior to trial, appellant filed a motion for the disclosure of evidence favorable to the accused in which he requested, among other things, the statements of witnesses. Appellant contends that the failure of the prosecutor to comply with this motion with respect to Emily Miller’s statement denied him due process of law, citing Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App.1972). In Crutcher, a burglary conviction was reversed because of the failure of the prosecutor to reveal a police offense report that contained a description of the burglar by the State’s chief identification witness. This description was basically inconsistent with the appearance of the defendant. We held that the existence of this inconsistent description was relevant to the witness’ credibility and that the prosecutor violated his duty under Brady v. Maryland, supra, when he knowingly failed to reveal the existence of the offense report despite an attempt by the trial court, at the hearing to determine the admissibility of the witness’ in-court identification, to determine if there were any discrepancy between the witness’ description of the burglar and the actual appearance of the defendant.

A defendant is entitled to examine the written statement of a witness for purposes of cross-examination upon demand made after the witness has testified on direct examination. Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1961). The distinction between the general Brady rule and the more specific Gaskin rule was discussed in Payne v. State, 516 S.W.2d 675 (Tex.Cr.App.1974), in which the defendant complained of the prosecutor’s failure to disclose the statements of the State’s witnesses prior to trial:

“Reliance is primarily made on Brady v. Maryland, [supra], which is limited to suppression of exculpatory evidence by the prosecution to an accused upon request as being a violation of due process. Several federal jurisdictions favor pre-trial disclosure of evidence subject to the Brady doctrine. [Citations omitted.] Despite the announced policy in these federal jurisdictions, the legislative policy of Texas is to the contrary. Art. 39.14, V.A. C.C.P., specifically excepts written statements of witnesses from pre-trial discovery. We do not feel compelled to expand upon the rule followed in this State since the procedure of disclosing such evidence at trial affords the appellant an opportunity to request a postponement or continuance which adequately satisfies due process requirements of Brady v. Maryland, supra.

A defendant is entitled to examine the prior statements of a State witness only if he makes a timely and specific request to do so following the witness’ direct testimony. Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977); Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972); Gaskin v. State, supra. Appellant did not request to see Emily Miller’s written statement until three days after she had testified. This was not a timely request, and appellant may not complain of the failure of the prosecutor to disclose the statement earlier.

Emily Miller was one of three identification witnesses. Her statement describing the suspect as a black or Mexican man was based on having seen the assailant for a few seconds as she and her husband drove past the scene. This is in contrast to Crutcher v. State, supra, where the sole identification witness had had a face-to-face conversation with the burglar and had soon thereafter given the police a detailed description which did not fit the defendant. The record also reveals that Emily Miller positively identified appellant in both a lineup and a photographic display. After examining the entire record, we cannot say that Emily Miller’s written statement creates a reasonable doubt as to appellant’s guilt. See Frank v. State, 558 S.W.2d 12 (Tex.Cr.App.1977); Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974).

Appellant contends that the trial court erred by restricting his questioning of certain venire members, thereby preventing him from using intelligently his peremptory challenges. The necessity to question freely and broadly on voir dire in order to decide intelligently when to use one’s peremptory challenges has been firmly established as a concomitant to the constitutional right to counsel. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); De La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967). Although the decision as to the propriety of any question during voir dire is left to the discretion of the trial court, that discretion is abused when a proper question about a proper area of inquiry is prohibited. Smith v. State, supra. There is no doubt, however, that reasonable restrictions on the exercise of voir dire examination may be imposed for various reasons, among them to curb the prolixity of what can become the lengthiest part of a criminal proceeding. Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Smith v. State, supra. In the instant case, jury selection began on March 28, 1977, and did not end until April 25, after the examination of more than one hundred venire members. The transcription of the voir dire examination fills more than 5,700 pages of the record.

Appellant raises three grounds of error regarding his examination of Mrs. Willie Millhollon. The first is based on the following exchange:

“Q. (By Ms. James) All right. Now, you believe there are two sides to every story?
“A. Yes.
“Q. All right. And after the Prosecution has rendered their version, you will, of course, wish to hear the Defendant’s version, will you not?
“MR. TOKOLY: Objection.
“THE COURT: Sustained. Don’t answer. Ask your next question.
“MS. JAMES: Well, Your Honor, I believe this goes to the burden of proof in the right of—
“THE COURT: It’s a leading question.”

Appellant contends that the attitude of ve-nire members about the accused’s right not to testify is a proper area of inquiry on voir dire.

Although it is apparent that the prosecutor’s objection was sustained because of the leading nature of the question, and not because of its subject matter, appellant did not rephrase the question. Furthermore, the proper inquiry is not whether the juror might wish the accused to testify, but whether the juror would, regardless of his wishes, follow the law and not consider the silence of the accused as evidence against him. Barry v. State, 165 Tex.Cr.R. 204, 305 S.W.2d 580 (1957). The trial court did not abuse its discretion in sustaining the objection.

While questioning Millhollon, appellant’s counsel made the following statement concerning courtroom security:

“Q. And there's another matter, that during the trial — I don’t know what measures exactly the Court has to secure, whether there will be searches at the door. There will undoubtedly be a large number of Bailiffs and Deputy Sheriffs entrusted with the security of this courtroom and they will be wearing badges and guns and there will be a large number of Sheriffs and other security people around the Courthouse and possibly individual searches of people coming into the courtroom.
“THE COURT: Wait a minute. Where did you get that from?
“MS. JAMES: Well, I don’t know if Your Honor plans to search people or not.
“THE COURT: Then let’s don’t tell the jurors what I’m going to do about security when you don’t know.”

The statement was obviously based on speculation, and the trial court did not err in refusing to permit questions based thereon.

Finally, appellant asked Millhollon the following question:

“Q. All right. Do you have any hostile feelings toward persons whose life style differs from your own?
“MR. TOKOLY: Judge, that’s so vague.
“THE COURT: Sustained.”

Appellant has made no showing as to the relevance of this question, other than to assert that it “attempts to determine whether the venireman was one who is prejudiced against, rather than tolerant of, those different from herself.” No abuse of discretion is shown. See Johnson v. State, 467 S.W.2d 247 (Tex.Cr.App.1971).

Appellant’s counsel explained to ve-nire member Leslie Goekler that appellant did not have to testify and that this could not be considered as evidence against him, and Goekler stated that he understood. Goekler was then asked:

“. . . We have gone through the presentation of the evidence by the Prosecution; and at that point would you expect the Defendant to testify?
“A. No.
“Q. Well, being honest with yourself, wouldn’t you want him to explain—
“MR. TOKOLY: Objection.
“THE COURT: Sustained. Don’t suggest.
“Q. (By Ms. James) Do you think he should testify? Do you think he should—
“MR. TOKOLY: Judge, pardon me. I object to this whole line of questioning because—
“THE COURT: Sustained.”

Since appellant had already established that Goekler understood that appellant did not have to testify and that he would not expect him to testify, the trial court did not abuse its discretion in sustaining the objections to the subsequent, essentially duplicitous questions. Bodde v. State, supra; Smith v. State, supra; Barry v. State, supra.

During the voir dire examination of Raymond Wagner, it was established that he had read news stories about the shooting of Officer Wood, but that he remembered few of the details and retained no impression of the stories. Appellant subsequently asked Wagner:

“Q. Would you say that the news stories that you have read were slanted towards the side of the prosecution in this case?
“MR. SCOTT: Objection, Your Honor.
“THE COURT: Sustained.
“Q. (By Ms. James) All right. Were you changed in any of your thinking by any of the newspaper stories that you read?
“A. Well, I haven’t really given it any thought.
“Q. All right. It was not a matter of any importance to you at that time?
“A. No, ma’am.
“Q. All right. Did you have an occasion to read in the newspaper any opinion of any prominent person about this case?
“A. No, ma’am.”

Appellant contends that the question objected to was an “attempt to elicit the venireman’s perception of the articles he previously admitted he had read and remembered.” Wagner was thoroughly questioned concerning his memory of the news stories he had read, and he stated that he retained no impression of them. The trial court did not abuse its discretion in sustaining the objection. Bodde v. State, supra; Smith v. State, supra.

The following also occurred during appellant’s examination of Wagner:

“Q. (By Ms. James) If after the prosecution has rendered their version and they have closed their testimony and you have heard all of their evidence and the case is then in the hands of the defense, would you expect Randall Dale Adams to testify?
“MR. TOKOLY: Objection, because the predicate has not been laid.
THE COURT: I understand. What [we] are talking about predicate is this, the ultimate issue that we are asking about is really can you follow the law as I will give it to you at the end of the trial.
JUROR WAGNER: Right, I will follow the law.
“THE COURT: If the Defendant does not testify during the trial then part of the law I will give you would be that in deliberating upon any issue in the case that you are not to consider his failure to testify as any evidence of anything, period.
“All right. You are not to discuss it, consider it or refer to it in any way during your deliberations. Now, some jurors are of the frame of mind that if the Defendant doesn’t testify then they would in some way hold that against the Defendant, if they are of that frame of mind then they could not be a fair juror because they could not follow the instructions of the Court. There are some people who just couldn’t follow the instructions on that. They may feel like if the Defendant doesn’t testify, ‘By golly I’m going to convict him,’ for whatever reason.
“So Ms. James is trying to find out if the defense — Defendant does not testify in the trial if on one hand you would hold that against him or if on the other hand you could follow the Court’s instruction and not consider his silence as a witness—
“JUROR WAGNER: I could follow the Court’s instructions.
“THE COURT: Go ahead, Ms. James.
“Q. (By Ms. James) Well, would you want him to testify?
“MR. TOKOLY: Well, I object to that.
“THE COURT: Sustained.
“Q. (By Ms. James) Well, the Court has just given the predicate for you, you have said you would follow the law in the Court’s Charge and I think that the Court would charge you that the Defendant does not have an obligation to testify, but wouldn’t you want him to testify?
“MR. TOKOLY: Objection.
“THE COURT: Well, as to whether the juror would want him to testify or not, I’m not going to allow that. Well, no, I beg your pardon. I’m going to sustain the objection. Go on to your next question.
“Q. (By Ms. James) All right. Being honest with yourself wouldn’t you wonder why the Defendant didn’t testify? “MR. TOKOLY: Objection.
“THE COURT: Sustained.
“Q. (By Ms. James) All right. Now, if the Court has followed — has given you the law in the Court’s Charge would you wonder why he did not explain himself?
“MR. TOKOLY: Objection.
“THE COURT: Sustained.
“Q. (By Ms. James) All right. Do you think that these thoughts about why he did or didn’t testify might be subconsciously affecting your determination of innocence or guilt?
“THE COURT: Do you object to that?
“MR. TOKOLY: Yes.
“THE COURT: I will allow that question provided it be rephrased to not assuming something that is not before the Court.
“Do you feel that any thoughts that you might have about why the Defendant didn’t testify or for what reason he didn’t testify or any thoughts like that, do you feel that any feelings you might have about it would or could be such that they would prevent you from following my instructions of not considering his silence?
“JUROR WAGNER: No, I would follow the law whatever your Instructions were.
“THE COURT: Any feelings or thoughts you might have about it I take it from what you say would not be such as it would preclude you or prevent you from being able to follow the Court’s instructions?
“JUROR WAGNER: That’s right.
“THE COURT: Go ahead, Ms. James.”

Wagner’s ability to follow the law should appellant not testify was thoroughly tested. The trial court did not abuse its discretion in sustaining the objections. Bodde v. State, supra; Smith v. State, supra; Barry v. State, supra.

A similar exchange took place during the examination of Paul Matlock:

“Q. All right. Now, after the Court has charged you on the law of course that will be after the prosecution has rendered their version, would you expect the Defendant to testify?
“MR. TOKOLY: Here again—
“THE COURT: You have to lay a predicate.
“Q. (By Ms. James) Well, I think that— you know that the Defendant does not have the burden of proof, does not have to testify although he can if he wishes. Now, after the prosecution has rendered their version and after the Court has instructed you on the law would you still expect the Defendant to testify?
“A. Not necessarily.
“Q. All right. Would you think he was hiding something if he didn’t testify?
“MR. TOKOLY: Objection.
“THE COURT: Sustained.
“Q. (By Ms. James) Well, being honest with yourself, wouldn’t you think these thoughts might subconsciously prevent you from following the Court’s instructions?
“THE COURT: Don’t lead your witness. Rephrase your question.
“Q. (By Ms. James) Do you think that your thoughts might subconsciously affect your determination of innocence or guilt?
“MR. SCOTT: I don’t see how a person can answer that.
“THE COURT: Sustain the objection. The question is if the Defendant does not testify you will be instructed by the Court not to consider his silence as any evidence in the case. You are not to discuss it, refer to it or consider it in any way. And the question is if you are on the Jury and that occurs and you are so instructed would you follow that instruction of the Court?
“JUROR MATLOCK: Correct. Yes.
“THE COURT: Go ahead, Ms. James.”

Again, no abuse of discretion is shown. Bodde v. State, supra; Smith v. State, supra; Barry v. State, supra.

Venire member Charles Abbott was asked:

“Q. Do you drink?
“A. Occasionally.
“Q. You have no prejudice or otherwise that would cause you to disbelieve anybody who took a drink?
“A. No.
“Q. (By Ms. James) Well, would you have any bias, even though the law permits drinking, against anybody who drinks which would cause you to disbelieve part or all of his testimony?
“MR. TOKOLY: I object to that.
“THE COURT: Sustained . . .”

The last question was duplicitous; no abuse of discretion is shown. Bodde v. State, supra; Smith v. State, supra.

The following questions were asked of venire member Leo Cunningham:

“Q. All right. Now, if the Court should instruct you that silence of the Defendant is not evidence, and that he does not have to testify, and if the Court has charged you on the law and after the— this would necessarily be after the Prosecution has rendered its version, would you still expect the Defendant to testify?
“A. I don’t think so.
“Q. All right. Would you want him to testify?
“MR. TOKOLY: Now, Judge—
“THE COURT: Sustained.
“MR. TOKOLY: —we object to that.”

The second question was essentially a repetition of the first, and we find no abuse of discretion. Bodde v. State, supra; Smith v. State, supra; Barry v. State, supra.

Venire member Lester Hutchings was asked:

“Q. (By Ms. James) Well, if there is evidence of violence in this case or there are descriptions of injuries or wounds leading to death, would that fact alone prejudice you against Randall Dale Adams?
“A. No.
“Q. All right. Would the presence of violence, bloodshed, injury or death shock you or embarrass you so as to interfere with your objectivity?
“A. No, ma’am.
“Q. All right. Would evidence of injuries causing death hamper your consideration of all the other evidence in any way?
“A. I don’t think so.
“Q. You’re not just going to get grossed out and stampede some way or other? “A. No, ma’am.
“Q. All right. The Defendant, of course, is entitled to his day in Court; you do agree with that?
“A. Yes, ma’am.
“Q. All right. Would you be upset because this is a case in which someone has died?
“MR. SCOTT: Judge, we object. That—
“THE COURT: Sustained.”

The question objected to was duplicitous, and the trial court did not err by sustaining the objection. Bodde v. State, supra; Smith v. State, supra.

The following exchange took place during appellant’s examination of venire member Anita Pritchett:

“Q. All right. Now, if the Court should instruct you that the silence of the person on trial is not evidence and after the Court has charged you on the law and that is a necessity after the prosecution has rendered their version, would you still expect Randall Dale Adams to testify?
“THE COURT: Realizing again, that he has no obligation to testify.
“THE WITNESS: Right. That is his right. If he wants to testify in his behalf, I think that would be—
“MS. JAMES CONTINUING:
“Q. Would you expect him to explain?
“MR. SCOTT: Judge, I think that is an improper question.
“THE COURT: Sustained.”

We again find no abuse of discretion. Bodde v. State, supra; Smith v. State, supra; Barry v. State, supra.

It should be noted, with regard to the questioning of the venire members as to their desire or expectation that appellant testify, that appellant did testify at the guilt-innocence phase of the trial. Thus, the harm, if any, caused appellant by the rulings of the trial court complained of above was rendered moot.

Appellant contends that thirteen venire members were erroneously excluded for cause under V.T.C.A. Penal Code, Sec. 12.31(b), which provides that a prospective jury member in a capital case shall be disqualified unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact. Specifically, appellant contends that by permitting the application of Sec. 12.31(b), supra, to the three punishment issues specified by Art. 37.071, V.A.C.C.P., the trial court bestowed upon the prosecution a broader basis of exclusion than allowed under the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). However, this Court has consistently held that the statutory scheme for the selection of jurors in capital cases in Texas, and in particular the application of Sec. 12.31(b), supra, to the punishment issues, comports with the constitutional requirements of Witherspoon. Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976). The trial court did not err in excluding from the jury those venire members who could not state that their deliberations on the punishment issues would not be affected by the mandatory penalty of death or life imprisonment.

Other than to object to the application of the statute to the punishment issues, appellant does not take issue with the trial court's determination that the thirteen ve-nire members were disqualified under Sec. 12.31(b), supra. We have reviewed the voir dire examinations of these venire members and conclude that the trial court was correct in its determination.

Appellant contends that Art. 37.071, V.A. C.C.P., is unconstitutional because the punishment issues specified therein, in particular the second issue, “fail to present for the jury’s consideration any concept of ‘desert,’ thus depriving the defendant of the critical consideration of the jury of any defined standard by which they may decide if the defendant ‘ought to die,’ this being a requirement of the Constitution as interpreted in Gregg v. Georgia, [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)].” In a related argument, appellant contends that Art. 37.071, supra, is unconstitutional because “there are no provisions for jury lenience if all the special issues are answered affirmatively thus calling for jury negation should the jury believe that under all the circumstances the defendant does not ‘deserve’ a sentence of death.”

Appellant acknowledges that the defendant in a capital case in Texas may offer at the punishment hearing any relevant mitigating evidence. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977). See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, appellant argues that such evidence is of no avail to the defendant if the jury is convinced by the evidence beyond a reasonable doubt that the punishment issues should be answered affirmatively. In such a case, appellant argues, the punishment of death is mandatory even though the jury, on the basis of the mitigating evidence, may believe that death is inappropriate. Appellant contends that this system is of the sort condemned in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

In Gregg, the Supreme Court recognized retribution as one of the underlying purposes of the death penalty. The Court also made it clear that the sentencing authorities must give attention to the nature and circumstances of the crime and to the character of the defendant in determining whether death is the appropriate punishment in a particular case. From this, appellant asserts that “[i]t may no longer be doubted that there must be a finding that the individual adjudged guilty of a capital crime ‘deserves to die’ before he can be so sentenced.” But the Court clearly did not intend that the sentencing authority be given such broad discretion to decide whether a given defendant ought to receive the death penalty:

“Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion should be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”

Gregg v. Georgia, supra, 428 U.S. at 189, 96 S.Ct. at 2932.

The Supreme Court has described the Texas capital sentencing scheme as follows:

“. . . Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it . [T]he Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.”

Jurek v. Texas, supra, 428 U.S. at 273, 274, 96 S.Ct. at 2957. Appellant would substitute for this guided discretion the right of the jury to decide, by its own lights, whether or not the defendant ought to die. The flaw in appellant’s argument is best seen when it is turned around: if a defendant may not be given the death penalty, regardless of the jury’s answers to the punishment issues, unless the jury believes that he “deserves to die,” it would follow that if the jury so believes, then the defendant must be sentenced to death regardless of the answers to the punishment issues. Thus, appellant would return to the jury in a capital case the unbridled discretion to impose the death penalty condemned in Fur-man v. Georgia, supra.

Lockett v. Ohio, supra, does not support appellant’s contentions. In Lockett, the Court held that the Ohio capital sentencing scheme was unconstitutional because the sentencing authority was permitted to consider only three specified mitigating circumstances. The Court held that any relevant mitigating evidence offered by the defendant must be considered by the sentencing authority in determining whether the punishment of death should be imposed. Texas practice is in accord with this holding. Jurek v. State, supra; Robinson v. State, supra. At the same time, the Court re-stated the view of the plurality in Gregg that the discretion of the sentencing authority must be “directed and limited” so that the death penalty will be imposed in a consistent manner. Lockett v. Ohio, supra, 98 S.Ct. at 2963. The three issues specified in Art. 37.071, supra, provide this direction and limit the discretion of the jury so as to prevent the arbitrary or capricious imposition of the death penalty.

Contrary to appellant’s contention, Art. 37.071, supra, is not a mandatory statute of the sort held unconstitutional in Woodson v. North Carolina, supra, and Roberts v. Louisiana, supra. The statutes struck down in Woodson and Roberts mandated the death penalty for all defendants convicted of first-degree murder, without consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender. These statutes invited juries to disregard their oaths and the trial judge’s instructions and choose either a not guilty verdict or a guilty verdict for a lesser offense whenever they felt that the death penalty was inappropriate. Thus, the North Carolina and Louisiana capital sentencing procedures did not provide standards to channel jury judgments, nor did they permit review to check the arbitrary exercise of the capital jury’s de facto sentencing discretion.

Although the death penalty in Texas is mandatory upon the return of affirmative answers to the three punishment issues, Art. 37.071, supra, the jury does not consider the punishment issues unless it has first found the defendant guilty of murder under certain specified aggravating circumstances. V.T.C.A. Penal Code, Sec. 19.03. Furthermore, in answering the punishment issues the jury must consider all the relevant evidence concerning the particular offense and the individual defendant offered by the State or by the accused. Jurek v. State, supra; Robinson v. State, supra. The punishment issues give guidance to the jury regarding those factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision. Gregg v. Georgia, supra, 428 U.S. at 192, 96 S.Ct. 2909. The punishment issues provide for the guided jury discretion found wanting in pre-Furman death penalty statutes and in the statutes in question in Woodson and Roberts.

We hold that Art. 37.071, supra, is not unconstitutional for failure to present for the consideration of the jury the concept of “desert.” We also hold that Art. 37.071, supra, does not impose the death penalty in an unconstitutionally mandatory manner.

Appellant contends that the phrase “criminal acts of violence” contained in the second punishment issue is a technical legal phrase which must be defined in the jury charge. He further contends that left undefined, the phrase is unconstitutionally vague and calls upon the jury to decide a question beyond its competence. These contentions have been presented to and rejected by both this Court and the United States Supreme Court. Jurek v. Texas, supra; Jurek v. State, supra; Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977); King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977); Battie v. State, 551 S.W.2d 401 (Tex.Cr.App.1977).

In his final ground of error, appellant contends that the evidence is insufficient to support the jury’s affirmative answer to the second punishment issue. The record discloses that appellant’s only prior criminal conviction was for driving an automobile while intoxicated. Appellant had also been absent without leave for a short time during his service in the Army. At the punishment hearing, Dr. John Holbrook, a psychiatrist, testified that he had examined appellant and determined that he has the profile and characteristics of a sociopath. Holbrook also testified that he would expect little or no change in this diagnosis in the future and that, in his opinion, appellant would commit criminal acts of violence in the future that would constitute a continuing threat to society. Dr. James Grig-son, another psychiatrist, gave similar testimony. This testimony, when considered with the evidence of the crime itself, which was a particularly senseless and motiveless killing, is sufficient to support the jury’s determination that appellant would constitute a continuing threat to society. Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App. 1978); Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976).

The judgment is affirmed.

      . Harris, Bearden, and Jenkins each testified, in response to questions by the prosecuting attorney outside the presence of the jury, that no promises or agreements had been made by the State in exchange for Harris’ testimony.


source: Caselaw Access Project

author: ONION, Presiding Judge. TOM G. DAVIS, Judge,

license: Public Domain

text:
    Ex parte Harold Leo LeBLANC, Jr.
    No. 58575.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 7, 1979.
    Rehearing En Banc Denied March 21, 1979.
    Joseph C. Hawthorn, Beaumont, for appellant.
    None for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the Criminal District Court of Jefferson County denying relief to appellant. He sought to have the indictment against him alleging capital murder and murder dismissed and to prevent his further prosecution or conviction of these offenses.

An agreed statement of facts is in the record before us. It reflects that appellant was alleged to have committed capital murder and murder in Jefferson County on February 26, 1975. At that time, appellant was fifteen years old having been born on April 7, 1959. The County Court of Jefferson County, sitting as a Juvenile Court, on November 12, 1975, entered an order waiving jurisdiction and transferring the cause-in question to the Criminal District Court of Jefferson County.

On December 8, 1975, the Criminal District Court held an examining trial and discharged appellant because the State failed to establish probable cause that appellant had committed the alleged offenses.

The County Attorney of Orange County on February 18, 1976, filed a petition in the Orange County Juvenile Court alleging that appellant had engaged in delinquent conduct by committing the offense of forgery on February 12, 1976. On March 2, 1976, the Juvenile Court of Orange County found the allegations in the petition true and committed appellant to the Texas Youth Council. At the time of the finding, the offenses of capital murder and murder allegedly occurring in Jefferson County were within the knowledge of the Orange County Juvenile Court as evidenced by the record of the Juvenile Court proceedings.

On April 1, 1976, appellant was indicted in Jefferson County for the previously mentioned offenses of capital murder and murder. It is this indictment which appellant seeks to have dismissed.

In Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), we held that a juvenile who has been transferred to a district court for criminal proceedings has the right to an examining trial in the district court before indictment and that an indictment returned prior to an examining trial in the district court is void. In reaching that conclusion, after setting forth the legislative enactments through the years, we stated:

“Is it clear from these enactments that the legislative intent has been that a three step procedure be followed before a juvenile, sixteen and later fifteen years old or older, is tried in district court as an adult. At each step safeguards were provided. If the juvenile court decides to retain jurisdiction at the hearing to determine if the court should waive jurisdiction and certify the juvenile for criminal proceedings, that ends the matter with regard to certification. The juvenile then will be handled as a juvenile. If there has been certification and the district court, following an examining trial, decides to remand the juvenile to juvenile court, then the juvenile will not be tried as an adult but will be subject to the jurisdiction of the juvenile court. If the juvenile, after an examining trial in district court, is bound over for action by the grand jury and the grand jury does not indict, the district court certifies such failure to indict to the juvenile court and the jurisdiction of the case is resumed by the juvenile court. Thus, at any of the three steps if there is a decision not to prosecute the juvenile as an adult, then the juvenile will not be so prosecuted.”

We went on to the state that an examining trial . . is a valuable right, for it furnishes another opportunity to have the criminal proceedings against the juvenile terminated and the jurisdiction of the juvenile court resumed.”

Here the district court held the examining trial and discharged appellant because the State failed to establish probable cause that appellant had committed the alleged offenses. Appellant was thus not bound over for action by the grand jury, yet some four months later the grand jury returned the indictment in question against appellant.

We find such indictment to be void. Ex parte Menefee, supra; White v. State, 576 S.W.2d 843 (Tex.Cr.App., this day decided); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App., this day decided).

While it is not uncommon nor improper for a grand jury to return an indictment against an adult discharged at an examining trial, we conclude that such is not possible in the ease of a juvenile because of the three vital steps that the Legislature has provided must be accomplished before a juvenile may be tried as an adult. Menefee, supra. Here the State faltered at the second vital step when the court discharged appellant at the examining trial. We find that such action terminated the criminal proceedings against appellant and effectively remanded appellant to the jurisdiction of the juvenile court. To hold otherwise would render the examining trial a meaningless sham because the State could simply refuse to put on any evidence and then take the juvenile before the grand jury, thus depriving the juvenile of the valuable right of a meaningful examining trial as provided by the Legislature in V.T. C.A., Family Code, § 54.02.

In view of our holding that an examining trial at which it is determined that there is probable cause that the accused had committed the alleged offenses is prerequisite to an indictment being returned against a juvenile sought to be tried as an adult and that the discharge of appellant here at the examining trial terminated criminal proceedings against him, we do not reach the additional issue raised by appellant that his prosecution or conviction for the capital murder and murder offenses is barred because of former jeopardy.

The judgment is reversed and the cause remanded.

TOM G. DAVIS, Judge,

dissenting.

The majority relies on Ex parte Menefee, Tex.Cr.App., 561 S.W.2d 822, with which I cannot agree (see dissenting opinion in White v. State, 843 S.W.2d 576, and goes a step beyond in arriving at its holding.

V.T.C.A. Family Code, Section 54.02(h), provides:

“If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.” [Emphasis supplied.]

The Criminal District Court satisfied the “second vital step is determining whether a juvenile should be tried as an adult” required by Menefee v. State, supra, and White v. State, supra, when it held an examining trial on December 8, 1975. The majority concludes that when such examining trial did not find probable cause that such finding “effectively remanded appellant to the jurisdiction of the juvenile court.” Section 54.02(h), supra, leaves it to the discretion of the court holding the examining trial as to whether there shall be a remand to the juvenile court, that section providing, “The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.” [Emphasis supplied.]

That the Legislature intended to leave such matter to the discretion of the court conducting the examining trial is further evidenced by V.T.C.A. Family Code, Sec. 54.02(i), which provides if the grand jury does not indict, the district court “shall certify the grand jury’s failure to indict to the juvenile court.” [Emphasis supplied.]

The majority disregards that provision of Sec. 54.02(h), supra, which provides, “On transfer of the child for criminal proceedings, he shall be dealt with as an adult in accordance with the Texas Code of Criminal Procedure.” [Emphasis supplied.] As noted in the majority opinion, “it is not uncommon nor improper for a grand jury to return an indictment against an adult discharged at an examining trial.”

The appellant was accorded “the second vital step” mandated by Menefee and White when he was given an examining trial in the Criminal District Court of Jefferson County. It was then within the discretion of the court as to whether it should remand the appellant to juvenile court upon probable cause not being found, Sec. 54.02(h) providing that such court “. . . may remand the child to the jurisdiction of the juvenile court.” [Emphasis supplied.] When appellant was transferred to district court from juvenile court, he was to be “dealt with as an adult” under Sec. 54.02(h). The grand jury returned indictments against appellant for capital murder and murder. I would hold that the grand jury had jurisdiction to take such action.

I dissent.

DOUGLAS, DALLY and W. C. DAVIS, JJ., join in this dissent.

      . The record on appeal at page 19 shows the following Criminal District Court docket entry made over twenty-eight months later:
      “4-17-78 Record should reflect that an examining trial was held in this matter in this Court before indictment. At examining trial, Court found no probable cause existed based on proof offered and discharged the Def. from custody but did not return jurisdiction of the Def. to Juvenile Court pending action by the Grand Jury.”


author: QUENTIN KEITH, Commissioner.

text:
    Ex parte Ronnie Joe CHATMAN.
    No. 58870.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 14, 1979.
    Rehearing En Banc Denied March 21, 1979.
   OPINION

QUENTIN KEITH, Commissioner.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, Sec. 2, V.A.C.C.P. (Supp.1978). Petitioner was convicted in the 122nd District Court of Galveston County of the offense of aggravated rape on his plea of guilty before the court, and assessed a 20-year sentence on April 7, 1975, and no appeal was perfected from such judgment.

Petitioner contends that the judgment of conviction in the instant case is void because the trial court failed to conduct an examining trial pursuant to the provisions of Sec. 54.02(h), Family Code (1975), after he had been certified to the district court for trial as an adult. The trial court recommended that the application for the writ of habeas corpus be denied even though the State’s answer filed in the habeas corpus proceeding specifically admitted that “no examining trial was held by any court other than his certification hearing.”

By an order entered on May 9, 1978, this Court called the trial court’s attention to our opinion in Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), holding that the failure to conduct an examining trial after the juvenile certification to the district court rendered the indictment fatally defective. Our order also called attention to the opinion in Criss v. State, 568 S.W.2d 942 (Tex.Cr.App.1978), wherein we held that under certain circumstances the requirement that an examining trial be conducted may be waived.

We directed the trial court to hold a further hearing “to determine whether any specific waiver of the examining trial was obtained in the ease at bar” and directed the trial court to make additional findings and to recertify the record to this Court for review.

Notwithstanding the specificity of our order on remand, the trial court has wholly failed to make the requisite finding as to waiver of the examining trial. There are no findings of fact with reference to a waiver of an examining trial and no showing thereof in the record before us. Absent a showing of an intentional knowing waiver, such defect was not cured. See and compare Ramirez v. State, 486 S.W.2d 373, 374 (Tex.Cr.App.1972). While the trial court’s conclusion (as set out in footnote 1) may be technically correct insofar as petitioner’s constitutional rights are concerned, there has been a denial of his statutory rights under Menefee, supra.

A portion of the record in the original trial is before us and we are unable to find that there was any waiver of the right to an examining trial as in Criss, supra. State’s counsel has stipulated that there was no examining trial held and we accept such stipulation as bespeaking the truth.

A conviction for a felony cannot be had in Texas without an indictment. Texas Constitution Art. I, § 10; Melancon v. State, 367 S.W.2d 690, 692 (Tex.Cr.App.1963). And, as stated in Albrecht v. United States, 273 U.S. 1, 8, 47 S.Ct. 250, 252, 71 L.Ed. 505 (1926), “A person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court.” Or, as stated by the author in 2 Wharton’s Criminal Procedure, § 225, at 7 (12th Ed., C. Torcia, 1975): “[A] void indictment or information is the same as no formal accusation at all.”

Under the record which we review, petitioner is entitled to relief from confinement under the void indictment under the rationale of Menefee, supra. See White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979). See also Davila v. State, 547 S.W.2d 606, 608 (fn. 1) (Tex.Cr.App.1977); Huggins v. State, 544 S.W.2d 147, 148 (Tex.Cr.App.1976).

We now order that he be released from further confinement under the void conviction attacked and that he be delivered to the Sheriff of Galveston County, where he will be held for an examining trial under Sec. 54.02(h), Family Code (1975), and such further proceedings as may be appropriate when conducted in accordance with the applicable statutes and rules, without reference to his earlier conviction which is here and now vacated. It is so ordered.

Opinion approved by the Court en banc.

DOUGLAS, TOM G. DAVIS, DALLY and W. C. DAVIS, JJ., dissent.

      . Six specific findings of fact were made, none of which touched, even tangentially, the question we submitted. Notwithstanding this pointed disregard of our order, this bald conclusion is made: “The Court is further of the opinion and finds from an examination and consideration of the record in this case, that Petitioner is lawfully confined, that he has not been denied any right or privilege guaranteed to him by the Constitutions of the United States and of the State of Texas.”


author: ODOM, Judge.

text:
    James Elbert LEE, Appellant, v. The STATE of Texas, Appellee.
    No. 56469.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 7, 1979.
    John W. Cliff, Jr., Odessa, for appellant.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery in which punishment was assessed at 25 years.

At the outset we observe fundamental error that requires reversal in the interest of justice. Art. 40.09(13), V.A.C.C.P. The jury charge authorized conviction on a theory not alleged in the indictment, and this type of error is fundamental. Art. 36.19, VACCP

The indictment alleged, inter alia, that appellant committed aggravated robbery by using and exhibiting a handgun and by placing the complaining witness in fear of imminent bodily injury and death. The jury charge, in contrast, authorized a conviction if appellant either threatened or placed the complaining witness in fear of imminent bodily injury or death. This constituted an enlargement upon the allegations in the indictment since it authorized the jury to convict appellant upon finding facts that had not been alleged. See, V.T.C.A., Penal Code Sec. 29.02(a)(2). It is now well established that such error is fundamental. E. g., Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Jones v. State, Tex.Cr.App., 566 S.W.2d 939. It is essential that trial judges take note of the allegations in the indictment when drafting the portion of the jury charge that applies the law to the facts of the case if such errors as this are to be avoided.

The judgment is reversed and the cause remanded.


text:
    Elbert Eugene POINTER, Appellant, v. The STATE of Texas, Appellee.
    No. 56624.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 7, 1979.

      John Cutler, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Pat McKenna and Larry Knapp, Asst. Dist. Attys., Houston, for the State.
    Before ONION, PHILLIPS and TOM G. DAVIS, JJ., and KEITH, C.
   OPINION

QUENTIN KEITH, Commissioner.

Appellant was charged by complaint and information with the offense of attempted theft of property of the value of over twenty dollars and under two hundred dollars. The jury assessed his punishment at confinement in jail for thirty days which was probated for six months and a fine of two hundred dollars which was not probated.

The property was alleged to consist of two roosters belonging to Asper Joe Caruso, and the testimony showed conclusively that such roosters were fighting cocks which were bred and raised for sale to individuals who utilized such roosters in cockfighting in Louisiana or in Mexico.

Caruso testified at length that the market value of his roosters was from fifty to a hundred dollars each; that they were not bred for any purpose other than to fight “to the death”. He readily admitted that his roosters were not raised for meat production and that the game hens were not kept for meat or egg production. Caruso also admitted that the supermarket price of a five pound rooster would be approximately two dollars; but appellant’s counsel was unable to shake Caruso’s testimony that his game roosters were worth from fifty to one hundred dollars each.

Appellant contends that it was error for the trial court to permit Caruso to testify as to the present market value of the chickens on their “ability to commit an illegal act, to-wit, to fight other chickens at promoted game cock fights.” The contention was properly preserved in the trial court but we find it has no merit.

A similar contention has been rejected by this Court in several cases involving slot machines, the first of which was Bryant v. State, 129 Tex.Cr.R. 438, 87 S.W.2d 722 (1935). After considering out of state holdings and recognizing a conflict therein, the Court concluded:

“We are of the opinion that a private citizen who has without authority invaded the premises of another and taken therefrom any article belonging to such other person, without his consent and with intent to appropriate it to his own use and benefit, has small ground upon which to claim that the party in possession can not legally hold or use same, and that therefore the taker may appropriate same to his own use and benefit.”

Bryant, supra, has been followed in Smitham v. State, 129 Tex.Cr.R. 473, 87 S.W.2d 724 (1935); and Fincher v. State, 130 Tex.Cr.R. 470, 95 S.W.2d 131 (1936).

Indeed, the holding in Bryant is in accord with the majority rule prevailing in this country. See, e. g., Annotation, 51 A.L. R.2d 1396, “Gambling or lottery paraphernalia as subject of larceny, burglary, or robbery” (1957). See also 50 Am.Jur.2d, Larceny § 60, at 227 (1970), and 52A C.J.S. Larceny § 3(5), at 420 (1968), and authorities therein cited. Ground one is overruled.

Appellant’s second ground of error, submitted without supporting authority, presents the recurring problem of an attempt by the jury to split the penalty by probating the jail term and requiring payment of the fine. At the penalty hearing, the court submitted six alternate verdict forms as summarized in the margin.

The jury’s confusion was made known to the court in two notes which read:

“May we asses [sic] a fine and a jail term and probate the jail term only?”
and
“If we asses [sic] Pointer a jail term is the probation term of the same length of time as the jail term?”

The trial judge answered the first inquiry by “yes” and did not attempt to answer the second question.

Pursuant to Article 42.13, Sec. 4(b), Vernon’s Ann.C.C.P. (1979), the court noted the reception of the two findings of the jury assessing the fine without probation and the imprisonment in jail with a recommendation of probation. Under the notation, while no final conviction was ordered, the court required the fine to be paid by a date certain as a condition of the probation.

The question presented is one which has sorely divided this Court in recent years. See, e. g., Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977); Batten v. State, 549 S.W.2d 718 (Tex.Cr.App.1977); and, more recently, in Franklin v. State, 576 S.W.2d 621 (1978, not yet reported).

State’s counsel, mistakenly relying upon Taylor and Batten, supra, suggests that “[t]he sentence should be reformed so that both the fine and jail time imposed are probated.” For the reasons set out in Taylor, supra, and more recently in Franklin, supra, such a procedure would be impermissible.

We have no alternative but to reverse the judgment of the trial court and remand the cause, and it is so ordered.

      . The only authority cited is City of Galveston v. O’Mara, 146 S.W.2d 416 (Tex.Civ.App.—Galveston 1940), affirmed, 138 Tex. 16, 155 S.W.2d 912 (1941). We do not find the cited authority in point or persuasive.

      . (a) Assessment of a fine without probation; (b) assessment of a jail confinement without probation; (c) assessment of a fine and jail confinement without probation; (d) assessment of fine and recommendation of probation; (e) assessment of jail confinement with a recommendation of probation; and (f) assessment of a fine and jail confinement with a recommendation of probation. The jury in this case used two forms — (a) a fine of $200 without recommendation of probation and (e) thirty days confinement in jail with a recommendation of probation.


author: DOUGLAS, Judge.

text:
    Ex parte Danny R. WILSON.
    No. 58646.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 7, 1979.
    Frank Blazek, Huntsville, for appellant.
    Bill M. White, Dist. Atty., Edward J. Coffey and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P.

On February 2, 1977, relator was indicted for theft over $200, enhanced, pursuant to V.T.C.A., Penal Code, Section 31.09. He pled guilty on May 18, 1977, and punishment was assessed at twelve years. No appeal was taken. On September 20, 1978, we remanded this case to the 187th District Court of Bexar County for the purpose of conducting an evidentiary hearing and to have filed findings of fact and conclusions of law. A hearing was held on October 5, 1978. The trial judge found relator’s allegations were true and transmitted the case to this Court in accordance with Article 11.07, supra.

Relator’s sole contention is that he was denied effective assistance of counsel when his court-appointed attorney failed to advise him of his right to sever the counts in the theft indictment and have the charges tried as misdemeanors. Relator asserts that the right to severance under V.T.C.A., Penal Code, Section 3.04, is a mandatory right. We disagree with relator’s contentions and deny relief.

The recent case of Wages v. State, 573 S.W.2d 804 (Tex.Cr.App.1978), is in point. After first holding that misdemeanor theft counts may be properly aggregated to a third degree felony under V.T.C.A., Penal Code, Section 31.09, this Court stated:

“Appellant’s second ground of error complains that his trial counsel was ineffective for failing to request a severance of the three aggregated theft offenses alleged in the indictment. See V.T.C.A., Penal Code, Sections 31.03, 31.09, 3.01 and 3.02. Appellant alleges in his brief that he was not apprised of the options available to him under the law; i. e., that V.T.C.A., Penal Code, Sec. 3.04(a), provided him with a right to a severance. Such a contention assumes that the severance provision of Sec. 3.04(a) of our present Penal Code applies to the unique aggregation provision of Sec. 31.09 of the present Penal Code. Such a position has to be rejected on a facial interpretation of the relevant statutes. It is clear that the aggregation principle enunciated in Sec. 31.09 operates to create one offense. This provision applies when the amounts taken are obtained ‘pursuant to one scheme and continuing course of conduct.’ It is axiomatic that you cannot sever one offense. This provision should be contrasted to that expressed in Waythe v. State, 533 S.W.2d 802 (Tex.Cr.App.). In that case, the forgery offenses were consolidated pursuant to V.T.C.A., Penal Code, Sec. 3.02. The right to a mandatory severance under Sec. 3.04 was clearly applicable. Thus, in the instant case, had the record even supported appellant’s contention that he was not advised of the severance procedures under Sec. 3.04(a), ineffectiveness of counsel would not have been established. Upon a review of the whole record and the totality of the circumstances, we are convinced that appellant was not denied effective assistance of counsel — be he retained or appointed. Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.); Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974). . . .”

Accordingly, in the instant case, the relator had no right to sever the theft charges, and therefore was not harmed by his attorney’s alleged negligence. Based on the record before us we conclude that the totality of representation not only did not deprive relator of his right to adequate representation, but furthermore, that no legal duty owed to the relator was breached. See Ex parte Ewing, 570 S.W.2d 941 (Tex.Cr.App.1978); Harrison v. State, 552 S.W.2d 151 (Tex.Cr.App.1977).

The relief sought is denied.


author: DICKENSON, Justice.

text:
    COMMERCE INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Charles HAMPTON, Appellee.
    No. 5214.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 18, 1979.
    Rehearing Denied Feb. 15, 1979.
    Second Rehearing Denied March 29, 1979.

      J. Harris Morgan, Greenville, Jack L. Hart, Dallas, for appellants.
    Jerry D. Johnson, Lyne, Klein, French & Womble, Carl A. Generes, Elliott, Meer, Vetter, Denton & Bates, Dallas, for appel-lee.
    Donald A. Parks, City Atty., Greenville, Robert M. Collie, Jr., City Atty., Daniel Doherty and Jay D. Howell, Jr., Asst. City Attys., John W. Coolidge, Huntsville Ind. School Dist., Houston, Latham Boone, III, Navasota, Howard W. Perdue, Sweetwater Ind. School Dist., Arlington, filed briefs amicus curiae.
   DICKENSON, Justice.

Charles Hampton sued Commerce Independent School District, City of Commerce, Commerce Water District, their tax collector and their tax collection lawyers. Hampton owns the post office building in Commerce, Texas, and he sought relief from the “Authorized Collection Expense” which defendants added to the 1974 ad va-lorem taxes on that property. Hampton’s lawsuit, as shown by his pleadings and his brief, challenges the “Authorized Collection Expense” ordinances of the taxing authorities as not being authorized by the Texas Constitution and as involving a scheme of tax collection which is in direct contravention of the applicable statutory provisions. The tax authorities filed a counterclaim against Hampton for penalty, interest and “Authorized Collection Expense” alleged to be due in connection with his 1974 ad valo-rem taxes and for an order for foreclosure of tax liens and for sale of the post office property.

After a nonjury trial, the district court entered judgment declaring the “Authorized Collection Expense” ordinances of the tax authorities to be illegal and void. The Attorney General of Texas was not served with a copy of the proceedings and was not given an opportunity to be heard. We will reverse the judgment, and the cause will be remanded.

City of Commerce is chartered under Article 11, Section 5, of the Texas Constitution which provides that “ . . .no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State . . . .” (emphasis added) Hampton sought declaratory relief under the Uniform Declaratory Judgments Act, Article 2524 — 1, Tex.Rev.Civ.Stat.Ann. (1965).

Section 11 of that Act provides in part that:

In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the Statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.

We hold that the failure to notify the Attorney General of the pendency of this lawsuit, and to give that official an opportunity to be heard, deprived the trial court of jurisdiction to decide the challenge to the constitutional validity of the ordinances. Commissioners Court of Harris County v. Peoples National Utility Company, 538 S.W.2d 228 (Tex.Civ.App—Houston (14th Dist.) 1976, writ ref’d n. r. e.); Burke v. Hutcheson, 537 S.W.2d 312 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.). In view of this holding, we do not reach the points of error and cross-points asserted in the briefs.

The judgment of the trial court is reversed, and the cause is remanded to the trial court with instructions that unless the Attorney General of Texas is served with copies of the pleadings within a reasonable time, the cause is to be dismissed.

ON MOTION FOR REHEARING

Hampton asserts in his motion for rehearing that his “ . . . position in this case, both in the Trial Court and in this Court, has been, and is, that the Collection Ordinance is in direct contravention of the applicable Texas statutes. . . . ” Hampton contends that the constitutionality of the Collection Ordinance was never at issue, but we hold that if the ordinance is inconsistent with the general laws of this State, it would violate the constitutional prohibition contained in Article 11, Section 5, of the Texas Constitution. Therefore, Hampton’s claim that the ordinance is in contravention of the statutes constitutes an allegation that the ordinance is unconstitutional, and the Attorney General must be served under Section 11 of the Declaratory Judgments Act, Article 2524-1, Tex.Rev. Civ.Stat.Ann. (1965).

The motion for rehearing is overruled.


author: KLINGEMAN, Justice.

text:
    ANGLO EXPLORATION CORPORATION, A. W. Dugan and Lydia Dugan, Appellants, v. John GRAYSHON, Appellee.
    No. 16033.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 24, 1979.
    Rehearing Denied March 14, 1979.

      William G. Lowerre, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellants.
    Frederick R. Zlotucha, A. L. Hernden, Royal D. Adams, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is an appeal from an order of the District Court of Webb County, Texas, overruling pleas of privilege of appellants Anglo Exploration Corporation, A. W. Du-gan and/or Lydia Dugan. The nature of plaintiff John Grayshon’s suit will be more fully discussed hereinafter, but basically, his cause of action alleges that he is entitled to twenty per cent of certain oil and gas overriding royalties which were acquired by appellants. The oil and gas properties under consideration are located in Webb County, Texas. Appellants filed individual pleas of privilege praying for transfer of the case to Harris County, Texas, the county of their residence. Appellee thereafter filed his controverting plea in which he asserts that venue is maintainable in Webb County, Texas, pursuant to Article 1995, and, specifically, under Subdivision 7 (suits for fraud); Subdivision 14 (suits for recovery of land); Subdivision 27 (suits against foreign corporations); and Subdivision 29a (suits involving two or more defendants). Tex.Rev.Civ. Stat.Ann. art. 1995, subds. 7, 14, 27 & 29a (Vernon 1964).

The parties stipulated as to certain facts at the non-jury venue hearing, and the trial court after the hearing overruled appellants’ pleas of privilege. No findings of fact or conclusions of law were requested of, or filed by, the trial court. We will refer to the parties herein as they were designated in the trial court.

We have concluded that this case can properly be decided solely under the provisions of Subdivision 14 and the points of error will be so discussed with reference thereto.

The provisions of Subdivision 14 fixing venue at the situs of land are mandatory where the privilege is properly claimed. Langdeau v. Burke Investment Co., 163 Tex. 526, 358 S.W.2d 553 (1962); Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441 (1940); South Texas Development Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937). The necessary venue facts under Subdivision 14 are (1) that the suit is one for the recovery of land or damages thereto, and (2) that the land is situated in the county where the suit is filed. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954); Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); Kimbell v. Roberts, 264 S.W.2d 763 (Tex.Civ.App.—El Paso 1953, writ dism’d); 1 R. McDonald, Texas Civil Practice § 4.22.1 (rev. 1965).

Whether or not the suit is one for recovery of lands or damages thereto is a matter to be determined from the allegations of the plaintiff’s petition. Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); Woodworth v. Rogers, 367 S.W.2d 412 (Tex.Civ.App.—San Antonio 1963, no writ); Hunt Oil Co. v. Murchison, 352 S.W.2d 365 (Tex.Civ.App.—Eastland 1961, no writ); Rogers v. Scaling, 285 S.W.2d 259 (Tex.Civ.App.—Fort Worth 1955, mand. overr.). The nature of plaintiff’s claim is determined by the principal right asserted in plaintiff’s petition and the relief sought for the breach thereof. Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957); Wagner v. Pulliam, 361 S.W.2d 470 (Tex.Civ.App.—Eastland 1962, no writ).

Both a royalty interest and an overriding royalty in minerals are “lands” for the purpose of fixing venue in suits for recovery of such interests or damages thereto, and a mineral estate is an interest in land, and damages to such estate are damages to land. Tennant v. Dunn, 130 Tex. 285, 110 S.W.2d 53 (1937); Texaco Inc. v. Gideon, 366 S.W.2d 628 (Tex.Civ.App.—Austin 1963, no writ); Fagadau v. Sand Springs Home, 337 S.W.2d 744 (Tex.Civ.App.—Amarillo 1960, writ dism’d); Marshall v. McMurrey, 303 S.W.2d 811 (Tex.Civ. App.—Eastland 1957, writ dism’d); Natural Gas Distributing Corp. v. Williams, 292 S.W.2d 353 (Tex.Civ.App.—Beaumont 1956, writ dism’d); Case-Pomeroy Oil Corp. v. Pure Oil Co., 245 S.W.2d 763 (Tex.Civ.App.—Fort Worth 1952, no writ); Frost v. Standard Oil Co. of Kansas, 107 S.W.2d 1037 (Tex.Civ.App.—Galveston 1937, no writ).

The defendants assert four points of error pertaining to Subdivision 14, which may be summarized as follows: the trial court erred in overruling their pleas of privilege because there is (1) no evidence, or alternatively, (2) insufficient evidence, to support a determination that the suit falls within Subdivision 14 of Article 1995; and there is (3) no evidence, or alternatively, (4) insufficient evidence that title to the overriding royalty interest was to be taken in the names of both plaintiff and defendants. Defendants assign other points of error under Subdivisions 7 and 27 of the venue statute. Since we have concluded that Subdivision 14 is determinative of this case we will not discuss those other subdivisions.

Defendants assert that this suit is one for specific performance of a contract or for breach of contract, and is not a suit involving title to lands covered by Subdivision 14. We disagree. Defendants rely heavily on Calvert v. Greene, 326 S.W.2d 592 (Tex.Civ. App. — San Antonio 1959, no writ), to support their opposition to venue under Subdivision 14. Defendants’ reliance on that case is misplaced. In Calvert, the court upheld venue in the county in which the action was filed, which was the situs of the oil, gas and mineral leasehold interests.

The pleadings on which the venue hearing was based are summarized as follows:

(a) The named defendants are Anglo Exploration Corporation, a Delaware corporation authorized to do business in the State of Texas [hereinafter referred to as Anglo]; A. W. Dugan and/or Lydia Du-gan. Anglo’s registered agent for service is in Houston. A. W. and Lydia Dugan may be served at Anglo’s Houston address;
(b) This action involves mineral interests concerning lands in Webb County, Texas;
(c) There existed a fiduciary relationship between plaintiff and defendants prior to and apart from the transactions made the basis of this suit. Plaintiff is a geologist, familiar with oil- and gas-producing properties. He entered into an oral agreement with defendants for the mutual benefit of all parties, wherein they would jointly locate, evaluate, acquire, sell, trade, assign and/or otherwise dispose of prospective oil- and gas-producing properties. The parties agreed there would be a division of profits and/or proceeds from their endeavors, with plaintiff to receive 20% and defendants to receive 80%, including said percentages of any mineral interest retained;
(d) Defendants acquired the “Rettig Lease” in Webb County for a bonus price of $7.50 per acre, after having plaintiff evaluate the land as a reasonable prospect for mineral exploration. Thereafter, the lease was sold by defendants to another corporation by an assignment dated November 25, 1974. The assignment involved in this sale provided for a reservation to the defendants of ⅛⅛ of %ths interest in all oil and/or gas which might be produced from the assigned lands. Plaintiff contends that he became immediately entitled to 20% of the overriding royalty interest retained (20% of 64oths [⅛ th], which is equal to Vioth or 2½% of the total), in all of the oil and gas produced under the terms of the Rettig Lease. Gas is currently being produced on the lease and is being sold. The royalty interest is currently held in the name of Anglo and plaintiff claims a constructive trust over such royalty interest;
(e) Although requested, defendants have refused to account to plaintiff for his pro rata share in said overriding royalties, and for profits from sale of the lease;
(f) Plaintiff prays for 20% of the overriding royalty interest retained by defendants in the assignment of the oil and gas lease, for an accounting, for exemplary damages, jmd for other relief to compensate him for services rendered pursuant to the oral agreement.

Attached to the petition is a document entitled the “ASSIGNMENT OF OIL AND GAS LEASE,” which describes the land in Webb County and reserves to assignor (the defendants) an overriding royalty interest in the oil and gas lease assigned.

Plaintiff’s petition clearly seeks to impress a constructive trust on property interests situated in Webb County. The principal right asserted in his suit for which relief is sought is for establishment through a constructive trust of an equitable title to 20% of certain overriding royalties received by defendants under an assignment of an oil, gas and mineral lease covering lands in Webb County. The action for specific performance and for breach of contract is merely ancillary thereto. A suit claiming equitable title to land by means of a constructive trust is a suit for recovery of lands within the meaning of Subdivision 14 of Article 1995. McDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944); Carstairs v. Bomar, 119 Tex. 364, 29 S.W.2d 334 (Tex.Comm’n App.1930, opinion adopted); Levinson v. Slater, 565 S.W.2d 337 (Tex.Civ.App.—Corpus Christi 1978, no writ); Woodworth v. Rogers, 367 S.W.2d 412 (Tex.Civ.App.—San Antonio 1963, no writ); Rudman v. Chandler, 255 S.W.2d 592 (Tex.Civ.App.—San Antonio 1953, no writ).

Two recent decisions of the Corpus Christi Court of Civil Appeals are directly in point with the cause before uS. One of those cases involves the same defendants as in the present suit under the same type of pleaded agreement. In Anglo Exploration Corp., et al. v. John Grayshon, et al., 576 S.W.2d 151 (Tex.Civ.App.—Corpus Christi 1978), Anglo was sued by Grayshon and Robert W. Hopf to recover certain overriding royalty interests in several oil and gas leases in lands located in Gonzales County, Texas. Defendants there filed pleas of privilege to be sued in the county of their residence, and plaintiffs controverted the pleas, relying on Article 1995, Subdivisions 7, 14, 27 and 29a, exactly as in the instant case. The trial court overruled defendants’ pleas of privilege, and the court of civil appeals affirmed the trial court judgment under the provisions of Subdivision 14.

The court’s opinion sets forth in detail plaintiffs’ petition which is remarkably similar to the pleadings in the case before us. Defendants’ contentions in that cause were basically the same as those asserted herein. In upholding the trial court, the court of civil appeals held that (1) the primary purpose of the suit was not for specific performance of a contract to assign an interest in land, but to establish through a constructive trust an equitable title to 20% of the overriding royalty interest received by the defendants in the lease described therein; (2) the parties were essentially engaged in a joint venture; (3) there was a breach of a confidential relationship resulting in the constructive trust; and (4) a suit claiming an equitable title to lands by means of a constructive trust comes within Subdivision 14.

In Levinson v. Slater, 565 S.W.2d 337 (Tex.Civ.App.—Corpus Christi 1978, no writ), an earlier case before the same appellate court, defendants filed a plea of privilege to be sued in the county of their residence, and plaintiffs controverted asserting the suit should remain in Wharton County where the disputed oil and gas leases were located. The trial court overruled defendants’ pleas of privilege and the court of civil appeals affirmed, holding (1) that under the allegations in the petition the primary purpose of the suit was to establish through a constructive trust equitable title to an overriding royalty interest in minerals in the leasehold estates; and (2) that a suit by one claiming equitable title to lands by means of constructive trust came within the mandatory provision of Subdivision 14. Levin-son v. Slater is basically similar to the case before us.

It is undisputed that the land involved in the present case is situated in Webb County, Texas, the county where the suit was brought. The only other venue fact necessary for plaintiff to establish in order to maintain venue in Webb County, Texas, is that his suit is an action for recovery of lands or damages thereto. This is a matter to be determined from the allegations of the plaintiff’s petition, and the nature of plaintiff’s claim is determined by the principal right asserted and the relief sought for the breach thereof. Under the record herein and the applicable rules and authorities pertaining thereto, this suit is clearly one to recover an interest in lands pursuant to Subdivision 14 of Article 1995.

The trial court correctly overruled defendants’ pleas of privilege and properly held venue to be in Webb County. The judgment of the trial court is affirmed.

      . Subdivision 14 of Article 1995 provides an exception to the general venue rule:
      Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land or a part thereof, may lie.
      Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 14 (Vernon 1964).

      . Defendants bring no points of error that pertain to Subdivision 29a, which was raised in the venue hearing. That subdivision was not discussed in appellants’ brief, and we will not consider it on appeal.


author: MURRAY, Justice.

text:
    Wanda HARP, Appellant, v. VALLEY FORGE LIFE INSURANCE CO., Appellee.
    No. 16124.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 24, 1979.
    Rehearing Denied March 14, 1979.
    Charles L. Franz, Jr., Harold L. Warford, San Antonio, for appellant.

      Ralph K. Harrison, San Antonio, for ap-pellee.
   OPINION

MURRAY, Justice.

This is a suit upon an alleged contract of life insurance between appellee, Valley-Forge Life Insurance Company, and the insured, William Harp, for the benefit of appellant, Wanda Harp, the surviving wife of the insured. The trial court entered a judgment on the jury verdict in favor of the appellee, and appellant has perfected her appeal to this court.

Bernard Nelson, a salesman for appellee, took a written application for life insurance from William Harp on October 17, 1973, accepted a check for the first premium payment of $29.60, and issued Mr. Harp a conditional premium receipt. It is undisputed that on the same occasion Nelson informed Harp that a physical examination was required by the company because of Harp’s age and the amount of insurance for which he applied. It is further undisputed that no physical examination was taken by Mr. Harp prior to his death on November 17, 1973. No policy was issued upon the Harp application, but appellee instead returned to appellant the first premium tendered, without making a determination of the insura-bility of William Harp.

In those cases in which no physical examination is required by the company, Part II of the application consists of a medical history on the reverse side of Part I of the application. In those cases in which a physical examination is required by the company, the medical history on the reverse side of Part I of the application is not filled out, and Part II consists of the physical examination. Both appellant and appellee agree that the language of the conditional premium receipt relevant to the effective date of the insurance can be summarized as follows:

If the Company, after receiving Parts I and II of the application and such other information as it requires, determines to its satisfaction that the proposed insured
was insurable under the Company’s rules and standards, then the insurance shall take effect from the date of Part I or Part II, whichever is later.

The trial court submitted the following issues to the jury, who answered them as indicated:

SPECIAL ISSUE NO. _1
Do you find from a preponderance of the evidence that the failure of William J. Harp, Sr., to complete a physical examination was the consequence of the actions and neglect of Valley Forge Life Insurance Company?
[Ajnswer: We Do Not.
SPECIAL ISSUE NO. _2
Do you find from a preponderance of the evidence that under the circumstances then prevailing, Valley Forge Life Insurance Company arbitrarily refused to proceed to the formation of an opinion as to William J. Harp, Sr.’s insurability under the rules, limits and standards of the plan and amount applied for with Valley Forge Life Insurance Company?
[Ajnswer: We Do Not.

William Harp was required to take a medical examination, and the jury found that his failure to take the medical examination was not caused by the acts of the appellee. Texas law on when insurance becomes effective under a conditional premium receipt is set forth in National Life and Accident Insurance Co. v. Blagg, 438 S.W.2d 905 (Tex.1969) and United Founders Life Insurance Co. v. Carey, 363 S.W.2d 236 (Tex.1962). Both cases deal with the issue of when life insurance becomes effective under a conditional premium receipt when a medical examination is required as part of the application process.

As expressed by the Supreme Court in Carey, a conditional premium receipt, similar to the one given William Harp, provided for temporary life insurance; and the insurance was to be effective on the date of completion of the applicant’s medical examination if in the opinion of the company’s authorized officers he was on that date insurable and acceptable according to the terms of the receipt. The Court stated:

We thus conclude that the receipt issued to Bruce did provide for temporary insurance and that the insurance was to be effective on the date of the completion of his physical examination if in the opinion of the authorized officers of petitioner he was on that date insurable and acceptable according to the terms of the receipt.

363 S.W.2d at 243. It is clear from the partial statement of facts filed in this case that the temporary life insurance never became effective because the applicant failed to take the required physical examination.

All other points presented by appellant have been considered by this court and are without merit; therefore, they are overruled. The judgment of the trial court is affirmed.