author: TOM G. DAVIS, Judge. ODOM, Judge.

text:
    Michael W. GEORGE, Appellant, v. The STATE of Texas, Appellee.
    No. 60005.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 27, 1979.
    Rehearing Denied Nov. 28, 1979.

      Michael W. George, William L. Smith, Jr., Denton, for appellant.
    Jerry Cobb, Dist. Atty., Denton, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a final judgment forfeiting a bail bond.

Among other contentions advanced appellant contends that the evidence and the judgment nisi will not support the final judgment.

The principal, Steven Parrish, was indicted for aggravated rape and appellant is a surety on a $15,000 bail bond posted by Parrish.

The final judgment was entered by the 158th District Court of Denton County. It states that no sufficient cause is shown why the principal did not appear “in this court” on the 15th of May, 1978.

The testimony of Sandra Smith, an employee in the Clerk’s office, reflects the indictment was returned in the 211th District Court of Denton County where the Honorable Sam Houston is presiding judge. No order appears in the record transferring the case to the 158th District Court which is presided over by the Honorable Robert Sco-field. On the contrary, the testimony of Chief Felony Prosecutor Fred Marsh reflects the following:

“On- the 15th day of May, 1978, the case of Steven Allan Parrish, charged with aggravated rape, Cause No. 14,775-C was called on the docket of the District Judge, Sam Houston, for trial . . . There was a delay for the attorney for the defendant to get his client to the Courtroom, and when his client did not appear for trial, Judge Houston ordered his name called at the doors of the Courthouse, and the instruction was delivered for his name to be called at the doors of the Courthouse . . ., and that was done, and the Judge ordered a judgment nisi to issue for Mr. Parrish for failure to appear for trial.”

The testimony of Marsh further reflects that the indictment was returned in “Judge Houston’s Court.”

The record contains a judgment nisi which shows to have been entered in the “Judicial District Court of Denton County” without stating in which court it was entered. The judgment bears the signature of the Honorable W. C. Boyd, presiding judge of the 16th District Court of Denton County. The court’s docket sheet is not in the record before us. While the judgment nisi is silent as to which court in which it was taken, the pleadings of the appellant show to have been filed in the 16th District Court.

Clearly, any of the judges of the district courts of Denton County have jurisdiction to sit in any district court of the county, and may hear and determine any part of any case or proceeding pending in any of the district courts in the county. Collins v. Miller, Tex.Civ.App., 443 S.W.2d 298; Mullins v. Mullins, Tex.Civ.App., 300 S.W.2d 133; Peach v. State, Tex.Cr.App., 498 S.W.2d 192. This is riot the problem which confronts us.

In Smith v. State, Tex.Cr.App., 548 S.W.2d 407, a judgment nisi entered in the 147th District Court of Travis County stated that appellant failed to appear in that court on September 15, 1975. The final judgment was entered in the 167th District Court of Travis County and recited that no sufficient cause was demonstrated by the principal for his failure to appear “in this court.” In reversing, this Court held that the recitations of the final judgment were not supported by the judgment nisi in that they are in variance with regard to the court in which the principal failed to appear. See Bonds v. State, 162 Tex.Cr.R. 419, 286 S.W.2d 313; Smith v. State, Tex.Cr.App., 567 S.W.2d 10.

In the instant case the testimony at the hearing on the final judgment reflects that the indictment was returned in the 211th District Court, the bond was set by the Judge thereof, the case was called in that court, and upon failure of the principal to appear the Judge of the 211th District Court ordered a judgment nisi to issue. While Judge Boyd did not lack the authority to sign the judgment nisi, the judgment does not reflect in which court it was taken or in which court the principal was to appear. The final judgment shows to have here been taken in the 158th District Court, is signed by the judge presiding of that court, and recites that the principal did not appear “in this court.” Thus, neither the evidence nor the judgment nisi supports the final judgment.

The judgment is reversed and the cause remanded.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

This is an appeal from a final judgment forfeiting a bail bond. On original submission we held the judgment must be reversed because neither the evidence nor the judgment nisi supports the final judgment.

In the State’s motion for rehearing it is urged that Article 44.24(b), V.A.C.C.P. authorizes this Court to reform and correct the judgment of the trial court, and that the judgment in the instant case should be affirmed under the authority of that statute. We disagree for two reasons.

The first reason for rejecting the State’s contention is that Article 44.24(b) is not applicable to appeals of bond forfeitures. Article 44.44, V.A.C.C.P., provides that in cases of bond forfeitures, “the proceeding shall be regulated by the same rules that govern civil actions where an appeal is taken or a writ of error sued out.” Salazar v. State, Tex.Cr.App., 486 S.W.2d 323.

Secondly, under the applicable Rule of Civil Procedure, this judgment must be reversed. Rule 434, T.R.C.P., provides:

“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.” (Emphasis added.)

In the present case the cause must be remanded because it is necessary that some matter of fact be ascertained, without a record of which we may not correct the judgment. The final judgment of forfeiture, entered in the 158th Judicial District Court, recites that “no sufficient cause is shown why the defendant Steven Allan Parrish did not appear in this court on the 15th day of May, 1978 . . . ” (Emphasis added.) This recitation in the judgment is the only finding of fact by the trial judge as to which district court there was a failure to appear in and a forfeiture taken. Without a recitation elsewhere in the record of a specific finding, that the principal failed to appear as alleged in the pleading, and evidence to support such a finding, there is no factual basis for the position, contended for by the State, that the judgment recital that the principal failed to appear “in this court,” the 158th District Court, was a mere drafting error subject to reformation by this Court. In civil cases regulated by Rule 434, T.R.C.P., modification of the judgment by the reviewing court may be made where it appears on the face of the record that modification should be made. Carter v. Barclay, 476 S.W.2d 909, 918 (Tex.Civ.App.—Amarillo, 1972, no writ). We cannot supply that which is not in the record. As on original submission, we hold that the evidence and the judgment nisi are at fatal variance with the final judgment entered on the forfeiture. See Smith v. State, Tex.Cr.App., 548 S.W.2d 407, 408.

The State’s motion for rehearing is overruled.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    STATE of Texas ex rel. Joseph C. HAWTHORN, Special Prosecutor, 252nd Judicial District, Jefferson County, Texas Relator, v. Leonard J. GIBLIN, Jr., Judge, 252nd Judicial District Court, Jefferson County, Texas, Respondent.
    No. 60487.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Joseph C. Hawthorn, Beaumont, for relator.
    Richard D. Hughes, Nederland, Robert Huttash, State’s Atty., Austin, for respondent.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an original application for a writ of prohibition to prevent the respondent from entering a judgment of acquittal in Jefferson County Cause No. 36,326. This Court has jurisdiction to consider this application. Texas Constitution Art. V, Sec. 5.

The record contains the following agreed statement of facts:

“FORD CUMMINGS was indicted on September 21, 1978 in Jefferson County, Texas, in Cause No. 36326, for Attempted Murder of Arthur L. Holdeman, which was alleged to have occurred on March 22, 1976.
“On or about October 4, 1978 Michael Matheny and Joe Goodwin were appointed by the Trial Court as Special Prosecutors.
“The case was tried before a jury beginning October 9, 1978.
“At the end of all the testimony, the Court charged the jury on the offense of Attempted Murder as well as the lesser included offense of Aggravated Assault.
“After approximately eleven hours of deliberation, the jury had not reached a decision. At the request of Mr. Matheny, the Court wrote a note to the jury inquiring as to their progress. The jury wrote back that they had voted 12-0 on Attempted Murder but were hung 6 to 6 on Aggravated Assault. Mr. Matheny asked that the jury be asked whether the 12-0 vote was for guilty or not guilty of Attempted Murder. The jury wrote back that the vote was 12-0 for not guilty of Attempted Murder.
“The trial court then called the jury into open court and in effect, determined from the foreman that further deliberations would be futile.
“The Defendant then made a motion for a mistrial which was granted and the jury discharged.
“On or about November 27, 1978, Mr. Goodwin requested that Joseph C. Hawthorn also be appointed as Special Prosecutor which request was granted.
“On November 30,1978, the Defendant and Mr. Matheny signed an Agreed Order agreeing that because of the written communications from the jury stating they had voted 12-0 to acquit the Defendant, jeopardy attached to the charge of Attempted Murder and therefore, the Defendant stands acquitted of that charge.
“Judge Giblin has announced that he will enter a judgment acquitting the Defendant of Attempted Murder on January 11, 1979.”

Judge Giblin has informed this Court that no judgment or order will be entered in Cause No. 36,326 pending our determination of this application.

The question presented is whether a trial court may enter a judgment of acquittal in a case in which the jurors indicate that they have voted unanimously to acquit the defendant on the charged offense but are undecided as to the defendant’s guilt or innocence on a lesser included offense. Since a judgment cannot be entered in the absence of a verdict, Arts. 37.12 and 42.01, V.A.C.C.P., we must decide if the written communications from the jury in this case constitute a verdict.

Art. 37.01, V.A.C.C.P., provides:

“A ‘verdict’ is a written declaration by a jury of its decision of the issue submitted to it in the case.”

When a jury is instructed on one or more included offenses in addition to the charged offense, it cannot be said that the jury has decided the issue submitted to it until it declares the accused guilty of one of the offenses or not guilty of all of them.

The respondent argues that the communications from the jury constituted an informal verdict of acquittal. Art. 37.10, V.A.C.C.P. However, these communications were written in answer to questions from the trial court as to the status of the jury’s deliberations. This fact, and the jury’s obvious deadlock on the aggravated assault charge, leads us to the conclusion that these communications were intended merely as reports on the jury’s progress toward a verdict. Certainly, we cannot conclude that these communications were plainly intended to operate as an acquittal. Antwine v. State, 572 S.W.2d 541 (Tex.Cr.App.1978); Robinson v. State, 23 Tex.App. 315, 4 S.W. 904 (1887).

We hold that no verdict was rendered in Cause No. 36,326, and that as a consequence no lawful judgment may be entered therein. We are confident that the respondent will promptly act in accordance with this opinion, and the issuance of a writ will not be necessary.

It is so ordered.


author: ODOM, Judge.

text:
    Jose R. IDROGO, Appellant, v. The STATE of Texas, Appellee.
    No. 58136.
    Court of Criminal Appeals of Texas, En Banc.
    July 18, 1979.
    Rehearing Denied Sept. 19, 1979.
    Robert H. Spicer, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Keith W. Burris and Monica L. Donahue, Asst. Dist. At-tys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault. Punishment was assessed at four years and appellant was placed on probation.

In his only ground of error appellant argues the jury’s verdict is contrary to the law submitted to them in the jury charge and requires a judgment of acquittal. The indictment in this case charged appellant with murder. The court’s instructions to the jury submitted the issue of appellant’s guilt or innocence on the murder charge, but did not submit the offense of aggravated assault. The verdict forms submitted with the court’s charge provided for finding appellant guilty of murder as charged in the indictment and for finding him not guilty. The foreman of the jury altered the verdict form for conviction to read that the jury found appellant guilty of aggravated assault instead of murder.

Article 36.13, V.A.C.C.P., provides that the jury “. . . is bound to receive the law from the court and be governed thereby.” In accord with this statute the jury in this case received the customary instruction, “. . . you are bound to receive the law from the court which is herein given to you and be governed thereby.” Under the charge of the court, the jury could lawfully return one of only two verdicts: guilty of murder as charged in the indictment or not guilty. The law of aggravated assault was not submitted in the charge and the jury was without authority to convict appellant of that lesser included offense.

It is fundamental error for a court to authorize conviction by jury instructions that omit even one element of the offense. See, e. g. Cumbie v. State, Tex.Cr.App., 578 S.W.2d 732, and authorities cited there. A fortiori there can be no lawful conviction for an offense that was not submitted in the charge at all.

Article 37.14, V.A.C.C.P., provides:

“If a defendant, prosecuted for an offense which includes within it lesser offenses, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, or the judgment be arrested for any cause other than the want of jurisdiction, the verdict upon the first trial shall be considered an acquittal of the higher offense; but he may, upon a second trial, be convicted of the same offense of which he was before convicted or any other inferior thereto.” Since aggravated assault is a lesser included offense of the murder alleged in this case, in the event of retrial appellant may not be convicted of murder (since the jury here impliedly found him not guilty of that offense, cf. Art. 37.10, V.A.C.C.P.), but he may, on a proper charge, be convicted of aggravated assault.

The judgment is reversed and the cause remanded.


text:
    Mircea Alvin NASTU, Appellant, v. The STATE of Texas, Appellee.
    No. 58059.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 3, 1979.
    Rehearing En Banc Denied Nov. 28, 1979.

      Marvin 0. Teague, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Don Stricklin, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of heroin. Punishment was assessed at 20 years' imprisonment and a $10,-000 fine. Appellant asserts error was committed when the trial court refused to exclude evidence seized as the result of allegedly improper searches, refused to sustain his challenge for cause to a prospective juror, admitted certain oral statements made after arrest, refused to dismiss the indictment when it was learned the police had destroyed certain evidence, and refused to grant a mistrial after improper jury argument.

At 10:00 a. m. on August 11, 1975, Houston police officer Thomas, operating undercover, received information from a confidential informant that appellant was going to bring a large quantity of heroin to his apartment for the purpose of cutting and bagging it. Thomas had never seen appellant but had been getting information about him from this informant since February. He had been told that Nastu was a Turkish-American with a wife from Thailand and that he obtained his heroin by making trips to Thailand, buying the heroin and shipping it back through Hong Kong in stereo equipment. Thomas had begun his investigation of Nastu at that time and learned that he had been checking in and out of hotels and motels and changing rent cars. On the eleventh, the informer told Thomas that Nastu had just arrived back from Thailand and had bragged about picking up 2.2 pounds of heroin. The informant stated that appellant did not keep a large amount of heroin in his house. He described Nastu as a short, fat, Turkish-looking man with no teeth in his head who dressed shabbily and who stared at everyone with piercing eyes. The informer stated that appellant would be arriving at his apartment in the late afternoon carrying a large amount of heroin for the purpose of cutting it and that he usually carried his heroin in a suitcase. Thomas also testified that the informer stated that Nastu bragged about a machine gun and that the informer had seen a machine gun in Nastu’s apartment.

Thomas went to the apartment complex where appellant lived to wait for him. While checking out the apartment complex’s parking lot, he saw a rent car in the parking slot for appellant’s apartment. He called the apartment to see if anyone was home and there was no answer. The officer waited from approximately 4 p. m. until 7 p. m. when a yellow cab bearing appellant and his wife pulled into the parking lot and stopped behind the rent car. As appellant and his wife got out of the right hand passenger door, Thomas walked by on the sidewalk approximately 10 or 15 feet away. Appellant was carrying in his right hand a blue woman’s overnight suitcase, and in the crook of his left elbow, a mortar and pestle and a large paper bag. He put the mortar and pestle on the trunk of the rent car and stuck his hand in the paper sack and stared at Thomas. His hand pulled a little way out of the bag so that the officer could see the butt of a large caliber revolver which Nastu was pointing at him while keeping it largely concealed in the sack. Thomas walked on by and as he walked away Nastu opened the trunk of the rent car and put the mortar and pestle and the overnight bag into it. When Nastu walked around the cab and began paying the cab driver, Thomas turned around and walked up to him — whereupon appellant stuck his hand back in the bag. Thomas asked him where the apartment manager’s office was. Nas-tu stared at him for a few seconds, took his hand from the bag and turned as if to point. The officer then drew his pistol and told Nastu he was under arrest. A furious struggle ensued. Nastu stuck his hand back in the bag but Thomas grabbed his hand and he dropped the bag. Thomas threw him across the hood of the cab, stuck the gun to the head of the screaming and struggling Nastu and told him to hold still. Eventually appellant was subdued with the help of the apartment complex’s security guard who was attracted by the commotion. Appellant’s wife ran to their apartment when the struggle began. The officer and the security guard dragged appellant to the apartment manager’s office where they handcuffed him and read him his rights. In the parking lot, Thomas had removed methadone, 77 white pills, a bag of marihuana, $770 in cash and the car keys from Nastu’s pockets. He also found a 357 magnum pistol in the paper bag. The paper bag was left behind but Thomas went to get it after appellant was handcuffed and found some clothes and food. He called the police dispatcher for help. Officer Thomas testified that, after he made the phone call, appellant attempted to bribe him by offering to give him up to $4,000 in cash and a pound of heroin that he had as well as the pistol. The security officer testified that he too had been offered a bribe of $1,000 for release and overheard Nastu attempt to bribe Thomas. The officer sent the security guard out to watch the car while he called once again for help. He testified that he became worried about being there alone because appellant’s wife was still at large and he remembered being told by his informant that Nastu kept a machine gun in his apartment. He decided to get the heroin out of the car and took Nastu to the car and opened the trunk using the keys. Thomas opened the overnight bag and found 4 one ounce bags of heroin underneath the cosmetic tray. He asked Nastu where the rest was and appellant replied, “Stupid, there is a pound of heroin in that bag.” Thomas looked further and found a larger sack of heroin further down in the overnight bag. As the officer prepared to leave, additional police began to arrive on the scene and he felt relieved of the necessity of leaving.

Thomas asked appellant if the police could have permission to search his apartment. Appellant agreed on the condition that he be allowed to go to the door first and talk through it to his wife to calm her down. He was allowed to do this and the officers entered the apartment. He later signed a written consent form as well. Approximately $4670 was found in the apartment as well as a number of bottles of methadone.

Appellant asserts that the heroin found in the trunk of the car should have been excluded from evidence as it was the fruit of an unlawful warrantless search. It is well established that a search conducted without a warrant issued on probable cause is per se unreasonable and that the warrant requirement is subject only to a few well-delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One of these exceptions arises, under certain circumstances, when there is probable cause to search an automobile. Can ell v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). This exception exists in part because the circumstances that furnish probable cause to search a particular auto are most often unforeseeable and the opportunity to search is fleeting since a car can be readily moved. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). But this exception is not absolute. Chambers and Carroll teach us that the expectation of privacy, and hence the protection afforded it, is lower in automobiles than it is in houses or offices. But automobiles are still protected by the Fourth Amendment and there must be probable cause to search and exigent circumstances which make acquisition of a warrant impracticable in order to search without one. Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.); Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.). When one of these elements is not present, the warrantless search is unlawful and the evidence obtained as a result of that search must be excluded. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.).

“The question of whether a warrantless search is constitutionally valid can only be decided in terms of the concrete factual situation presented by each individual case.” Rivas v. State, 506 S.W.2d 233, 235 (Tex.Cr.App.).

In the instant case, Thomas went to the apartment complex to investigate a tip from an informer who had given him reliable information in the past. The information was that Nastu was bringing a relatively large quantity of heroin to his apartment for the purpose of cutting it. The informant described Nastu carefully in appearance and mode of dress and the fact that he routinely carried the heroin in a suitcase. Nastu appeared at approximately the time he was supposed to according to the informant and matched in every particular the description given by the informant. He was also carrying a woman’s overnight bag and a mortar and pestle. He was observed to place the bag in the trunk of the car. There is some question whether the information given was adequate to give rise to probable cause to search or arrest absent additional information to insure reliability such as how the informant came by this information. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). However, hearsay information, inadequate to constitute probable cause by itself, can become sufficient if corroborated by independent observation of the arresting officer provided the information is detailed enough and adequately corroborated by observation. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958); Rivas v. State, supra. There is also some question whether the corroborated details available to the officer before his contact with Nastu were adequate to give rise to probable cause to arrest for narcotics possession. However, this is not all Officer Thomas had to go on. As he walked by appellant, Thomas saw him in possession of a pistol. This gave rise to probable cause to arrest appellant for carrying a pistol. After the arrest, further information came forth when appellant tried to bribe him with both cash and heroin which gave Thomas probable cause to search for narcotics. Whether Nastu said he would give the officer heroin he had in the car, as Thomas testified at the suppression hearing, or whether he merely said he had dope that he would give him, as he testified at trial, the additional information conveyed by the bribe attempt provided further corroboration of the informant’s tip, corroboration, indeed, of the central and most important part of the informant’s information, that Nastu possessed heroin. Thus, an informant who had proven reliable in the past had given detailed information which had been borne out in almost every detail, including the central fact of narcotics possession. All that remained was to determine if the heroin was being carried in the overnight bag as the informer had said was appellant’s custom. Officer Thomas had seen Nastu put the bag into the car and had probable cause to search the car.

Our inquiry does not end here. As there must be probable cause to conduct a warrantless search of a vehicle, so must there also be exigent circumstances which make obtaining a warrant impracticable. These circumstances were absent in Coolidge v. New Hampshire, supra.

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States—no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a search warrant,’ and the ‘automobile exception,’ despite its label, is simply irrelevant.” 403 U.S. at 461-62, 91 S.Ct. at 2035-36.

In the instant case Nastu was under arrest and the automobile was being watched by the apartment security guard which would seem to place it close to Coolidge. However, Thomas testified that he decided to get the heroin out of the trunk, where he thought it was, and get away from the area because his informant had told him that appellant had had a machine gun in his apartment. Everything the informant had told him had so far proven to be accurate, and Nastu’s wife had fled in the direction of the apartment. We have to view the situation from the standpoint of the officer and cannot impose on him unrealistic prescience about the behavior of Nastu’s wife. She was pregnant and it is highly unlikely that a pregnant woman would emerge from the apartment to rescue her husband with machine gun blazing but the officer did not act in an unreasonable manner in taking steps to see that this supposition did not become enshrined as an addition to the corpus of famous last words. Unlike Coolidge, there was the possibility that the opportunity to search would be fleeting. If he was driven off by gun fire or killed, the car could be driven away. There was the possibility that an alerted confederate, known to be in the area, could move the evidence if the officer merely took his prisoner and withdrew, and there was no police help around to establish a special guard on the car. In Coolidge the auto’s mobility was not a factor, the defendant was under arrest, his wife was miles away in the company of police, and the car was under police guard. We determined in Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.), that there were insufficient exigent circumstances to make the obtaining of a warrant impracticable. The defendant was arrested in his office and taken away, the car was located outside of the building and was under guard at all times. In both cases a warrant was obtained but it proved to be defective. In Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.), the defendant was arrested and spent several hours clearing up a traffic violation during which time his truck was in police hands. The search of the immobilized vehicle at the police station was held to be unlawful. In the case before us the mobility of the car was a factor that still had to be considered.

In the instant case a single officer faced with what he believed was and could potentially have been a dangerous situation took steps to search for and seize evidence of the crime. The exigencies of the situation as it appeared at the time made it impracticable to go for a warrant without risking removal of the evidence. The search was lawful. The third ground of error is overruled.

In ground of error number four appellant asserts that the trial court committed reversible error when it admitted evidence seized during the search of appellant’s apartment. After his arrest, appellant was asked if he would consent to a search of his apartment. He said he would if he was first allowed to talk through the apartment door to his wife in order to calm her down. This was agreed to and the officers and appellant entered the apartment. Present at the time consent to search was given were Thomas, the apartment security guard and two patrol officers who had arrived in response to Thomas’ call. Other officers arrived 15 or 20 minutes later with written consent to search forms which Nastu signed. The consent to search form included a statement that appellant had been informed of his constitutional right not to have a search made.

It is the right of every citizen to be secure in his home from warrantless searches in all but a few instances. However, “[o]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Kolb v. State, 532 S.W.2d 87, 89 (Tex.Cr.App.). But before consent can be effective,- the prosecution must prove by clear and convincing evidence that the consent was given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.); Kolb v. State, supra.

“Whether a consent to search was voluntary is a question of fact to be determined from the totality of the circumstances.” Brem v. State, 571 S.W.2d 314, 319 (Tex.Cr.App.).

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Appellant was in custody at the time his consent was given but this does not necessarily prevent free and voluntary consent. Armstrong v. State, supra at 32. It is merely one of the factors to be considered. It is apparent that Nastu gave his consent freely on the condition that he could calm his wife who did not speak English and was probably frightened by all that had happened. Such an arrangement does not constitute coercion and his concern for his wife does not render the search involuntary. See Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.); Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.). The second and fourth grounds of error are overruled.

Appellant asserts that error was committed when the trial court denied a challenge for cause against a prospective juror who indicated that she could not consider the minimum sentence in the case of an adult guilty of possession of heroin. The record, however, reflects that this prospective juror did not serve on the jury, and the record fails to show that appellant used one of his peremptory challenges to strike her, that he requested and was denied an additional peremptory challenge, or that he was forced to accept a juror objectionable to him against whom he would have exercised a peremptory challenge. No reversible error is shown. Smith v. State, 573 S.W.2d 763 (Tex.Cr.App.); Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.).

Appellant complains about the introduction at trial of two statements in violation of Art. 38.22, V.A.C.C.P. He asserts the bribe attempt should have been suppressed along with appellant’s statement, “Stupid, there’s a pound in that bag,” made while Officer Thomas was going through the overnight bag. The first statements were made spontaneously by appellant in the excitement of the moment and were not the result of questioning. They were admissible under the “res gestae” exception of Art. 38.22 as then in effect. The second statement led to discovery of more heroin packed deeper in the overnight bag, and thus was within the exception for oral statements that lead to evidence conducive to establishing guilt. The fifth ground of error is overruled.

Appellant asserts error was committed when the judge refused to suppress testimony about certain items of evidence that were accidentally destroyed or sold at auction. The items were tagged together in the police property room and consisted of the pistol taken from appellant, the suitcase that the heroin was carried in, appellant’s wallet and fake identification, and the nonnarcotic evidence found in appellant’s apartment. Appellant claims the State deliberately suppressed this evidence and that the indictment should be dismissed or the case reversed and remanded for a new trial. We disagree. The State introduced testimony by its officers, including the police sergeant who ordered the destruction, which indicated the destruction was entirely the result of a mix-up in the police property room and was carried out without the knowledge of those involved in the trial. The situation is similar to that in Penix v. State, 488 S.W.2d 86 (Tex.Cr.App.), where the defendant was accused of narcotics possession. When he was arrested, the narcotics were in a number of small bags contained in a larger potato chip bag. Police threw away the bag because it was torn and soggy and they did not believe it was important. The defendant objected to introduction into evidence of the narcotics exhibit because a portion of it (the potato chip bag) had been “deliberately suppressed by the State.” We stated:

“We find no deliberate suppression by the state. Further, no bad faith on the part of the prosecution is shown and nothing is shown that would affect the disposition of the case; i. e., there is no showing that appellant was deprived of a fair trial.” Penix, supra, at 89.

In this case too, the evidence that lyas destroyed was merely incidental to a case where appellant was caught red handed with nearly a pound of heroin and other narcotics, all of which was available at trial. Furthermore, appellant has failed to make a demonstration of the key elements necessary in any suppression of evidence claim which are, (1) suppression of evidence by the prosecution after a request by the defense, (2) the evidence’s favorable character for the defense, and (3) the materiality of the evidence. Ransonette v. State, 550 S.W.2d 36, 39 (Tex.Cr.App.); Young v. State, 552 S.W.2d 441, 443 (Tex.Cr.App.).

“The standard to be applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony may have had an effect on the outcome of the trial.” Ransonette, supra at 39.

Appellant made no such showing. The sixth and seventh grounds of error are overruled.

In his final ground of error appellant complains of a statement made by the prosecutor during his final argument. He did not obtain a ruling on his objection nor did he ask for a mistrial, so nothing is preserved for review. Hollis v. State, 509 S.W.2d 372 (Tex.Cr.App.); Broussard v. State, 505 S.W.2d 282 (Tex.Cr.App.); Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.). The eighth and ninth grounds of error are overruled.

The judgment is affirmed.

      . This search may have been invalidated and the evidence excluded under the holdings of recent Supreme Court decisions involving luggage found in automobiles. See Arkansas v. Sanders, - U.S. -, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. I, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). However, this search and seizure took place before either of these decisions was handed down and the exclusionary rule is not retroactive if “the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial.” United States v. Peltier, 422 U.S. 531, 537, 95 S.Ct. 2313, 2317, 45 L.Ed.2d 374 (1975). Before Chadwick, there was little question that luggage found in automobiles was included within the automobile exception to the Fourth Amendment’s warrant requirement as was made clear in United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977) where the U.S. Court of Appeals for the Fifth Circuit held Chadwick to be prospective in effect only. Thus, Officer Thomas could reasonably have believed that his search was lawful under the circumstances. We will not apply Chadwick and Sanders retroactively to this case. See also, Kemner v. State, 589 S.W.2d 403; Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir. 1978); United States v. Berry, 571 F.2d 2 (7th Cir. 1978).


author: CLINTON, Judge.

text:
    Claude Mee RINEHART, Appellant, v. The STATE of Texas, Appellee.
    No. 56069.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 31, 1979.
    Rehearing En Banc Denied Nov. 28, 1979.
    James M. Murphy, Dallas, on appeal only, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., Hugh Lucas, Jr. and Stewart C. Robinson, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Tried on an indictment which facially alleged first degree arson, the confessing appellant was found guilty and his punishment assessed at confinement for life by a jury. On original submission his appeal was abated in order that the trial judge might make more detailed findings on disputed fact issues surrounding the taking of appellant’s confession and return his certificate reciting those findings, as required by Hester v. State, 535 S.W.2d 354 (Tex.Cr.App.1976) and McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976). That procedure being accomplished, the appeal was ordered reinstated, and we now turn to consideration of the case on its merits.

As a threshold matter we are confronted by seven supplemental grounds of error which raise an essential proposition: whether arson is a first degree felony when death is suffered by the person named in the indictment by reason of the commission of the offense? Clearly the point goes to the very foundation of the prosecution and, if valid, renders the conviction void. American Plant Food Corporation v. State, 508 S.W.2d 598, 603 (Tex.Cr.App.1974); Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976).

Under the old penal code there was no doubt. Article 1324, P.C., 1925 compounded punishment when “bodily injury less than death is suffered by anyone by reason of the commission of any offense” in Chapters 1 and 2 of Title 17. Article 1325, id, long provided, “Where death is occasioned by any offense described in this and preceding chapter the offender is guilty of murder.” Thus the former arson law provided for at least three offenses and a different punishment: burning with the penalty depending upon what was burned; burning that caused “bodily injury less than death” with an increased punishment not to exceed double what was otherwise provided without injury; and burning that caused death with penalties attaching to the offense of murder. The practice commentary following V.T.C.A. Penal Code, § 28.02, was prepared by two lawyers who served the committees of the State Bar for revision of the penal code. As indicative of intent and purpose the following is written:

“Arson is graded as a second-degree felony unless any person, presumably including the actor, suffers bodily injury less than death as a result of the arson. In that event, it is a first-degree felony. In effect, arson and an assaultive offense are consolidated and the punishment enhanced. If death occurs, arson is only a second-degree felony. Causing a death, however, ordinarily would constitute murder under Section 19.02(a)(3) and be punishable as a first-degree felony. If the actor intended to murder, the offense would be a capital felony under Section 19.03(a)(3) (sic).” (Emphasis supplied).

Relying on the language of Section 28.02(b) and the practice commentary this Court concluded in Wilson v. State, 541 S.W.2d 174,176 that “the offense becomes a felony of the first degree only when bodily injury less than death is sufficiently related to or a result of the fire (or explosion) caused by the arsonist.” Similarly, we conclude here that arson is a first degree felony only when “bodily injury less than death ” is suffered. If death is occasioned by reason of the arson, a different offense is committed — second degree felony arson, murder or capital murder, depending upon the underlying circumstances.

The judgment is, therefore, reversed and the cause remanded.

      . The indictment, omitting the formal parts, alleged that appellant, on or about January 15, 1976, did “intentionally start a fire with the intent to damage and destroy a habitation, without the effective consent of the owner of the said habitation, and by reason of the commission of the aforesaid offense . bodily injury was suffered by Donna Ruth Brown . . . ”

      . As fundamental error, appellant raises the issue in relation to every pertinent aspect of the case; that is, that the indictment fails to allege an essential element of the offense by omitting the phrase “less than death,” that the evidence is insufficient to support conviction for the proof shows that death was suffered by the victim named in the indictment, that the indictment is insufficient to support conviction for first degree felony arson, that the charge on guilt or innocence misstated the law of first degree felony arson by omitting the phrase “less than death,” that the charge on punishment was erroneous in authorizing the jury to consider first degree felony arson range of punishment and that the trial court erred in not instructing sua sponte a verdict of acquittal of first degree felony arson.

      . Probably because that language left the range of punishment uncertain, in 1965 a proviso was added to prescribe applicable punishment where “malice aforethought” was not shown.

      . See 1 V.T.C.A. Penal Code, p. VHff.

      . Clearly the reference was intended for Section 19.03(a)(2).

      . We are fortified in our conclusion by the early case of Beaumont v. State, 1 Tex.App. 533, 536 (1887), Ward v. State, 133 Tex.Cr.R. 110, 109 S.W.2d 207, 210 (1937) and the principle of Swilley v. State, 114 Tex.Cr.R. 228, 25 S.W.2d 1098 (1929) — all decided under our former penal code — and such suggested charges applying present provisions of the penal code appearing in Texas Criminal Pattern Jury Charges 264: “If you find from the evidence beyond a reasonable doubt that bodily injury less than death was suffered by . .,” McClung, Jury Charges for Texas Criminal Practice 92: “. . . and you further find from the evidence beyond a reasonable doubt that _ suffered bodily injury less than death by reason of the commission of the said offense . . . ” and Morrison and Blackwell, Texas Practice, Criminal Forms, § 98.01, defining “bodily injury” as in § 1.07(a)(7), V.T.C.A. Penal Code and applying the law to the facts by stating, “And the said A.B. by reason of the commission of said offense did then and there cause bodily injury less than death to be suffered by C.D. . . . ” See also, for suggested form of indictment, Morrison and Blackwell, Texas Practice, Criminal Forms, § 9.03, “And the said A.B. by reason of the commission of said offense did thereby cause bodily injury less than death to be suffered by C.D.”


text:
    Antonio S. SOLIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 60669, 60670.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 31, 1979.
    Rehearing En Banc Denied Nov. 28, 1979.

      George A. Scharmen, Universal City, for appellant.
    Bill M. White, Dist. Atty., Wayne Hampton and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

Cause No. 60,670 is an appeal from a conviction for attempted burglary of a habitation. The punishment was assessed at imprisonment for seven years. Cause No. 60,669 is an appeal from a revocation of probation. Appellant was originally convicted on November 24,1975, for attempted burglary of a habitation and the punishment was assessed at imprisonment for six years, probated. On July 18, 1977, the State filed a motion to revoke probation alleging the same criminal conduct which was the subject of the indictment in No. 60,670. The district court joined the revocation hearing with the trial on that indictment, found that appellant had violated a term of his probation, and imposed sentence.

In four grounds of error, appellant contends that the evidence is insufficient to support either the conviction or the revocation of probation. The indictment charged, in pertinent part, that on June 9, 1977:

“ANTONIO S. SOLIS did then and there, with intent to commit theft, intentionally and knowingly attempt to enter a habitation, having at the time the specific intent to commit the offense of burglary, by REMOVING A WINDOW SCREEN FROM SAID HABITATION, without the effective consent of REDEN ALFORD, the owner . . ..”

The allegation in the motion to revoke probation was not materially different from the allegation in the indictment.

The essential facts of this case are not in dispute. On June 9, 1977, at about 6:00 p. m., Mrs. Ella Pierce was conversing with Mrs. Opal Crutcher and Mrs. Alice Fisher in the front yard of Mrs. Fisher’s home. Mrs. Fisher lived on the block next to Mrs. Pierce and the front of Mrs. Pierce’s home was plainly visible from Mrs. Fisher’s yard. All three of these women observed a man, subsequently identified as appellant, stooping in front of the front window of Mrs. Pierce’s house. Appellant then went up on Mrs. Pierce’s front porch and tried to open the screen door, which did not open, apparently because it was latched from the inside. Appellant then walked into Mrs. Pierce’s driveway and disappeared from view as he walked toward the back yard. Mrs. Pierce returned to her home to find out what appellant was doing and met appellant coming back into her front yard. Appellant told her he was looking for an apartment and Mrs. Pierce informed him that “there is no apartments around here, specially in my backyard.” Appellant then walked off down the street.

After appellant left, Mrs. Pierce looked at the place where she had first seen appellant stooping near her front window and found a window screen lying on the lawn. She recognized that the screen was not from her house but instead was from the house next door, owned by Reden Alfred. Mrs. Pierce went next door and notified Mr. Alfred, who discovered that a screen was indeed missing from one of his windows. There was no indication that anyone had actually entered the Alfred house and, although a purse was about three feet from the window, the Alfreds reported that none of their property was missing or disturbed in any way. The Alfreds contacted the police about the incident.

The police had already apprehended the appellant as a suspect in several burglaries reported earlier that day. After receiving the call from the Alfreds the police drove appellant to the scene, where he was positively identified by Mrs. Pierce. Appellant was then arrested and he subsequently made a statement which was introduced at trial. That statement reads, in pertinent part, as follows:

“On June 09, 1977 at about 5:50 or 6:00 P.M. I was walking up the side street towards Steves St. [the street of the Alfred and Pierce homes]. When I got to Steves I turned to the right and walked up the sidewalk. I looked around the intersection but I did not see anyone between the corner house [the Alfred house] and the one next to it [the Pierce house]. The windows were already open to a bedroom. I removed the screen from the bedroom window. I took it back towards the street between the houses. I walked across the grass lawn of the house next door and half way up the drive way. I looked back and saw this old woman coming across the street from the corner. I then walked back towards the front of her house on the lawn. When the old lady got up close to me she asked me what I was doing at her house. I did not tell her notheing [sic] I just walked off

The defense presented no evidence except to contest the voluntariness of appellant’s statement, an issue which is not assigned as error by appellant on this appeal.

Viewing the evidence in the light most favorable to the judgment of the trial court, the evidence is sufficient to show that appellant removed a screen from the bedroom window of the Alfred home, walked to the front of the Pierce residence, put the Alfred screen down on the Pierce lawn, walked into the Pierce driveway and back to the front yard, talked to Mrs. Pierce, and walked away. This evidence is sufficient to show that an attempt was made to enter the Alfred home since removal of the screen is an act amounting to more than mere preparation. See V.T.C.A. Penal Code, Sec. 15.01.

The State must also prove beyond a reasonable doubt that appellant removed the screen with the specific intent to commit a burglary with intent to commit theft. The evidence for this element is obviously circumstantial. The State argues correctly that an intent to commit theft will be presumed if the attempted entry occurred at night. Hines v. State, 458 S.W.2d 666 (Tex. Cr.App.1970). The record does not show that this entry occurred at night. Night, as related to burglary or theft at night, traditionally means any time from thirty minutes after sunset to thirty minutes before sunrise. Wilson v. State, 103 Tex.Cr.R. 403, 281 S.W. 844 (Tex.Cr.App.1926). The time was approximately 6:00 p. m. on June 9, 1977. There was no evidence about the amount of daylight at that time; however, United States Weather Bureau information indicates that sunset on June 9,1977, in San Antonio was at approximately 8:32 p. m. The State also argues, with some authority, that flight is an incriminating circumstance. We do not believe the record shows any evidence of flight; further, the police officers’ testimony was that at all times appellant cooperated with them “a hundred percent.”

The only circumstance relevant to proof of appellant’s criminal intent is his removal of the screen. We agree with the State that this circumstance would have been more incriminating if appellant had been interrupted at the scene immediately after the removal of the screen. However, the State’s own witnesses indicate that appellant, after removing the Alfred screen, did nothing further there, although he had not been interrupted or observed, and although a purse was in plain view only a few feet from the window. Instead, appellant took the screen to the Pierce home, placed it on the lawn near the Pierce front window, and attempted to enter the Pierce house before being interrupted by Mrs. Pierce. Appellant is charged with attempting burglary with intent to steal from the Alfred home, not the Pierce residence. We conclude that, although the circumstances show that appellant probably intended to enter the Alfred house with intent to commit theft, his behavior after removal of the screen was sufficiently inexplicable that reasonable doubt remains as to what his specific criminal intentions actually were.

Although we hold that the evidence is insufficient to support the conviction for attempted burglary in No. 60,670, this conclusion does not automatically dictate the same result in deciding whether the trial court abused its discretion in the decision to revoke probation in No. 60,669. The burden of proof for a revocation of probation is proof by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974). The State must show that the greater weight of the credible evidence would create a reasonable belief that the defendant has violated a condition of his probation. Id. The greater weight of the evidence in this case does support a reasonable belief that appellant violated a term of his probation, because the circumstances justify an inference that, more likely than not, appellant intended a burglary with intent to commit theft at the Alfred home at the time he removed their window screen. The revocation finding was not an abuse of the trial court’s discretion; we simply decline to hold that this element was proven beyond reasonable doubt.

The judgment in No. 60,670 is reversed and reformed to show an acquittal; the judgment in No. 60,669 is affirmed.

      . We note that the motion to revoke probation gives the name of the owner of the habitation as “Alford Reden,” rather than Reden Alford. The trial testimony gives the name of the owner as “Reden Alfred.” Appellant does not complain of this variance on appeal and he did not raise the issue at trial. Nothing is presented for review.


author: W. C. DAVIS, Judge.

text:
    Eddie Lewis JASON, Appellant, v. The STATE of Texas, Appellee.
    No. 56816.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 14, 1979.

      Stanley G. Schneider, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Michael C. Kuhn and Ken O. M. Henderson, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated rape of a child. V.T.C.A. Penal Code, Sections 21.09 and 21.03. Punishment, enhanced by one prior conviction, was assessed by the jury at thirty-five years in the Texas Department of Corrections.

The sufficiency of the evidence to sustain the conviction for rape is not challenged. The record reflects that the complaining witness D_M_ met appellant on August 1, 1976 in the lounge of Goofy’s Game Room, at approximately midnight. D— M_ and a friend left the lounge with appellant and his friend, to go to appellant’s apartment to get some drugs. When D— M_attempted to leave the apartment a few hours later, appellant stopped her and thereafter committed the rape.

In his first ground of error, appellant contends that the second count of the indictment is fundamentally defective as failing to allege a culpable mental state. V.T. C.A. Penal Code, Section 6.02.

The second count of the indictment alleged in part that appellant did,

“unlawfully, intentionally and knowingly have sexual intercourse with a female under the age of seventeen years and not his wife, D_ R_ M_, hereafter styled the Complainant, and the Defendant did compel the Complainant to submit to the act of sexual intercourse by threatening the imminent infliction of serious bodily injury and death to the Complainant.”

Appellant attacks the aggravation portion of this indictment as being defective for the failure to allege that he “knowingly and intentionally” compelled submission to the offense.

In Ex parte Smith, 571 S.W.2d 22 (Tex.Cr.App. 1978), we were faced with an indictment for aggravated rape, wherein the defendant made a similar argument. There, the indictment alleged that the defendant,

“did then and there unlawfully engage in sexual intercourse with R— S — , a female then and there under the age of 17 years and then and there under the age of 14 years and not then and there the wife of the said [defendant] and the said [defendant] did then and there knowingly and intentionally during the course of the same criminal episode, cause serious bodily injury to the said R_ S_ . . ” (Emphasis added)

The defendant contended that this indictment was fundamentally defective because it failed to allege that he had sexual intercourse with the requisite culpable mental state.

We recognized that to establish criminal responsibility for the differing offenses of rape, the State must allege and prove that the defendant acted intentionally, knowingly, or recklessly. V.T.C.A. Penal Code, Sections 6.02, 21.03 and 21.09.

In response to the defendant’s argument, we held:

“The indictment in the instant case alleges that [the defendant] ‘knowingly and intentionally during the course of the same criminal episode causefd] serious bodily injury . . ’ (Emphasis added) The criminal episode referred to is the act of sexual intercourse with the complaining witness. We hold that the emphasized phrase constitutes a sufficient allegation that [the defendant] knowingly and intentionally engaged in sexual intercourse.”

In the instant case, the indictment clearly alleges that appellant “knowingly and intentionally had sexual intercourse” with the complainant. It further alleges that he compelled her submission to this intercourse. The allegations are such that before appellant could have had sexual intercourse with the complainant, he had to have compelled her submission to the act first. Thus, the reference to appellant’s compelling the submission of the complainant refers to the knowing and intentional act of sexual intercourse. The allegation that appellant “knowingly and intentionally” had sexual intercourse with the complainant includes the allegation that he also knowingly and intentionally committed the acts by which means he accomplished the rape, i.e., compelling submission by threats. We hold that for the above reasons, this indictment sufficiently alleges a culpable mental state in the aggravation portion of this indictment. See and compare, Ex parte Smith, supra; Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App. 1978); Clark v. State, 558 S.W.2d 887 (Tex.Cr.App. 1977); Johnson v. State, 537 S.W.2d 16 (Tex.Cr. App. 1976); Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App. 1975).

In his second ground of error, appellant contends that the evidence is insufficient to show that the complainant was under the age of seventeen (17) years as alleged in the indictment. We do not agree.

The record reflects that the prosecutor asked the complainant, at trial on November 17, 1976,

“Q. . . . How old are you?
“A. Sixteen.
“Q. And what is your date of birth? “A. June 18th, 1960.
“Q. All right. So you are presently sixteen?
“A. Yes, sir.
******
“Q. I want to ask you to recall back on or about August 1st 1976, and ask you how old you were at that time?
“A. Sixteen.”

Upon cross examination, the complainant again stated the date of her birth. We hold that this testimony was sufficient to prove that the complainant was under the age of seventeen on the date of the offense. See Chavez v. State, 508 S.W.2d 384 (Tex.Cr.App. 1974). This ground of error is overruled.

In his third ground of error, appellant complains of the trial court’s overruling his objection to the prosecutor’s jury argument at the guilt/innocence phase of the trial. Specifically, he complains of the prosecutor’s rebuttal argument that:

“[Defense] counsel said the State hasn’t proved to you that the complainant witness in the case was sixteen. Let me tell you, that’s a competent attorney sitting on the other side of the table from me, and if there was a birth certificate anywhere in the United States, this man has a right to subpoena that birth certificate and have it here.
******
[The objection to this argument was overruled.]
******
And you can believe me, when the State elected to proceed in the case on the rape of a child, wherein this age was important, if there would have been such a certificate, it would have been here . . ."

The record reflects that defense had previously argued:

“Now, we run into technical problems, they get into reasonable doubt. The State never did offer, and there’s one that exists somewhere, there is a birth certificate somewhere. Isn’t that the best evidence? There’s no birth certificate in this thing to show the age of this child who looks like to me, a grown woman fully endowed and so forth. You remember the testimony of the doctor was that she represented that she was sixteen. She represented to you that she was sixteen. But I don’t think that’s enough in the proof of that technical point . That point should be clear proof that she was a child, and there is no birth certificate. In this modern day and age, if she was sixteen, sixteen years, was 1960, there are plenty of records available . We’re talking about a case where this man could go to the penitentiary for life, and the State hasn’t even paid you the courtesy of bringing in documentary proof of age . . . ”

We find that the prosecutor’s argument was made in response to the defense argument that a birth certificate was available to the State. Since the argument was made in response to the appellant’s argument, the trial court did not err in overruling the objection thereto. See Hefley v. State, 489 S.W.2d 115 (Tex.Cr.App. 1973). See also Jones v. State, 520 S.W.2d 755 (Tex.Cr.App. 1975); Allen v. State, 513 S.W.2d 556 (Tex.Cr.App. 1974); Hill v. State, 518 S.W.2d 810 (Tex.Cr.App. 1975). This ground of error is overruled.

In his fourth ground of error, appellant contends that the enhancement portion of his indictment was fundamentally defective in that it failed to allege the court in which the prior conviction was obtained.

In Prodon v. State, 555 S.W.2d 451 (Tex.Cr.App. 1978), we were confronted with this same contention. Quoting from Arce v. State, 552 S.W.2d 163 (Tex.Cr.App. 1977), we overruled this contention, stating:

“ ‘The appellant here made no motion to quash on the ground now urged, and this court has previously held that complaints such as the appellant now makes are exceptions as to form and not to substance, and cannot be raised for the first time on appeal. Stribling v. State, 542 S.W.2d 418 (Tex.Cr.App. 1976); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App. 1974), and cases there cited.’ Id., 552 S.W.2d at 164.”

In the present case, no motion to quash the enhancement paragraph was filed. Under the authority of Prodon v. State, supra, and Arce v. State, supra, this ground of error is overruled.

In his fifth ground of error, ¿ppellant claims that he was denied due process because the prosecutor “systematically excluded blacks from the jury by use of peremptory challenges.”

At his hearing on a motion for new trial, appellant presented the testimony of several witnesses that prosecutors in Harris County usually exercised peremptory challenges to strike blacks from jury panels. The State presented testimony that there was no office policy or established practice for prosecutors to strike black persons from jury panels solely because of their race. There was also testimony that blacks both did and had served on jury panels in the past. Upon a similar record, we have previously considered and rejected appellant’s contention, stating in Ridley v. State, 475 S.W.2d 769 (Tex.Cr.App. 1972);

“In Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)], the Supreme Court said it was the very nature of a peremptory strike to permit ‘rejection for a real or imagined partiality’ which may be ‘frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely the race, religion, nationality, occupation or affiliations of people summoned for jury duty.’ (emphasis supplied) Hence, where race (or any of the other ‘irrational but trial-related suspicions and antagonisms) is a trial-related consideration in a particular trial and potential jurors are excluded from that trial jury by the State’s use of the peremptory strike based on such consideration, equal protection has not been denied in that trial. Nor would the mere cumulation of trials utilizing the peremptory strike in this trial-related manner amount to ‘systematic exclusion’ in the selection of petit juries as understood in Swain.”

Thus, we conclude, as we did in Ridley v. State, supra, that no systematic exclusion has been shown. As we stated in Ridley, to hold otherwise, upon a record such as this, would be, in effect, the abolition of our peremptory challenge practice which has always been a part of our system to help an accused, as well as the State, obtain an impartial jury and a fair trial. See also, Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App. 1978). This ground of error is overruled.

In a pro se ground of error, appellant contends that the trial court erred in receiving and accepting a fatally defective jury verdict which did not find him guilty of the offense with which he was charged.

The indictment alleged aggravated rape of a child. The trial court charged the jury on aggravated rape of a child. Instructions on lesser included offenses were neither requested nor given. However, on a verdict form supplied by the trial court, the jury endorsed its verdict as follows:

“We, the jury, find the defendant guilty of the offense of rape of a child as charged in the indictment.” (Emphasis added)

The omission of the word “aggravated” in this form charge does not require a reversal of the cause.

The trial court correctly charged the jury on the offense of aggravated rape of a child as follows:

“Our law provides that a person commits an offense of rape of a child if he intentionally or knowingly has sexual intercourse with a female not his wife and she is younger than seventeen (17) years. The offense becomes aggravated rape of a child if the person compels submission to the rape as defined above by threat of death or serious bodily injury to be imminently inflicted on anyone.”

The charge then proceeds to define several terms, then concludes by applying the law to the facts:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Eddie Lewis Jason, in Harris County, Texas, on or about the 1st day of August, 1976, intentionally or knowingly had sexual intercourse with a female, to-wit: (Complainant), who was then and there younger than seventeen years, and was not his wife, and that the defendant compelled submission to the rape by threat of death or serious bodily injury to be imminently inflicted on (Complainant), you will find the defendant guilty of aggravated rape of a child.
“If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”

After receiving this charge, the jury retired to deliberate with the verdict form supplied by the court. That form required the jury to choose between (1) finding appellant not guilty and (2) finding appellant guilty of the offense of rape of a child, as charged in the indictment. These were the only choices available to the twelve lay persons who had heard an indictment alleging aggravated rape of a child, who had listened to evidence on aggravated rape of a child, and who had been charged on aggravated rape of a child. In the face of all these circumstances, the jury signaled, by the only means available, that they considered appellant guilty “as charged in the indictment.”

From the indictment up to the verdict of the jury, every phase of appellant’s trial involved aggravated rape of a child. Against that backdrop, twelve lay persons retired to secretly deliberate the guilt of appellant. They found that appellant had committed rape of a child “as charged in the indictment.” Under these circumstances, the language of the verdict should be interpreted in light of the indictment and charge.

The facts before us compare favorably with our holdings in Potts v. State, 571 S.W.2d 180 (Tex.Cr.App. 1978); Adam v. State, 490 S.W.2d 189 (Tex.Cr.App. 1973); Miles v. State, 486 S.W.2d 326 (Tex.Cr.App. 1972). These cases dealt with the sufficiency of stipulations containing “form” phrases which affirmed the acts and allegations in the indictment. An example comes from Adam v. State, supra.

“Said defendant . . . agrees and stipulates that he, the said defendant, is the identical person named in the indictment in the above styled and numbered cause and that all the acts and allegations in the said indictment . . . are true and correct.” (Emphasis added)

This Court wrote:

“This ‘catch-all’ stipulation is sufficient to constitute a judicial confession which will alone support a conviction.”

If reference to a “catch-all” phrase in a form stipulation can bridge a gap in the sufficiency of the evidence, there is no sound reason why the phrase “as charged in the indictment” appearing on a form verdict does not cure the alleged variance. See also Dinn v. State, 570 S.W.2d 910 (Tex.Cr.App. 1978), which applies this same reasoning to enhancement. This ground of error is overruled.

We have examined appellant’s additional pro se contentions and find them to be without merit.

The judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Billy-Ray CANADA, Appellant, v. The STATE of Texas, Appellee.
    No. 58327.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 14, 1979.

      Steven G. Condox, Arch C. McColl, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Karen Chil-ton Beverly, John Tatum and Rider Scott, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Appeal is taken from a conviction for injury to a child. The trial was before a judge. Punishment was assessed at twenty years.

Canada’s former wife, Julia Annette Reed, testified that she saw Canada grab the leg of Rebecca Dawn Reed, her daughter who was then three years of age, just below the knee and twist it with both hands until she heard a “pop”. The leg was broken. She further testified that Canada had earlier blackened the child’s eye by hitting her with a belt.

Canada testified that he had fallen on the victim as he attempted to catch her when she fell off the roof of his car after she had been placed there by Julia Reed.

Dr. James G. Brooks, Jr., an orthopedic surgeon, testified that he had treated the victim and that her injury, a spiral fracture of the left femur, was consistent with a hypothetical situation encompassing Julia Reed’s version of the incident, but inconsistent with a hypothetical situation encompassing Canada’s version. Dr. Brooks also testified that when he examined Rebecca she suffered from contusions and abrasions.

Photographs depicting Rebecca’s injuries were introduced.

Appellant now complains that the trial court erred in admitting over appellant’s objection evidence of an extraneous offense. John Combs, a child welfare supervisor, was permitted to testify that Canada had threatened him with bodily injury four days before Rebecca’s leg was injured when he requested that he be permitted to examine Rebecca.

In Murray v. State, 438 S.W.2d 916 (Tex.Cr.App.1969), this Court said:

“First, we observe that if any error is presented the appellant failed to ask for any further relief, i. e., a motion for mistrial. Further, it is noted that the case was being tried before the court without a jury. It is presumed that if such evidence was inadmissible, it was disregarded by the court. Cf. Noble v. State, Tex.Cr.App., 402 S.W.2d 758. Even without such testimony the evidence is sufficient to sustain the conviction.” 438 S.W.2d at 918.

That language is applicable to the instant case. If any error occurred, it is not reversible.

Appellant next complains that the trial court erred in permitting the cross-examination of appellant about two prior offenses. Appellant was asked about an arrest for public intoxication in 1976 and an arrest for armed robbery in a matter that was pending at the time of the instant case.

The holding of Murray would be sufficient to overrule appellant’s contention, but assuming that the testimony constituted error, we note' that the question about the intoxication arrest was asked after appellant’s answer to a question by his own counsel on direct examination, in which appellant claimed not to drink often. The question about the robbery arrest was in response to the following exchange between appellant’s counsel and appellant’s witness, Dr. James P. Grigson:

“Q. Dr. Grigson, in that respect, you are aware that Billy Ray Canada has virtually no criminal record?
“A. Yes, I am.
“Q. How do you correlate that with the testimony that you have just given? In other words, if he is so violent, what’s he doing here as a first offender?
“A. Well, I think that he is not an individual that would go out and say burglarize a place or rob a store or this type thing, his frustrations would be more apt to inflict themselves upon people that were close to him, or he was involved with and that probably any expression of that kind would not necessarily always lead to say, criminal charges against him.
“Q. I notice in your report that you say he is 27 years old?
“A. Right.
“Q. And he would certainly appear to be his stated age?
“A. Right.
“Q. And once again, you are aware that he has never been charged with murder or robbery or assault or anything like that?
“A. Right, I certainly am.
“Q. For as long as he has been an adult, which is basically 10 years?
“A. Right.”

Appellant’s counsel opened the door to the testimony complained of. His contention is overruled.

Canada contends that the trial court erred in admitting Dr. Brooks’ answer to a hypothetical question. Dr. Brooks was asked:

“Q. . . . if an adult male of say, approximately six foot tall and say 180 pounds, average strength, were to take the left leg of this small girl who was in a seated position and twist the leg either to the right or left in a rotating manner, would that action be consistent or inconsistent with the fracture that you found on Rebecca Dawn Canada?”

Counsel for appellant objected to the form of the question because no proper predicate had been laid.

Appellant now urges that the question assumed facts not in evidence. The objection was not specific enough to preserve error for review. An objection that the proper predicate has not been laid is too general and does not merit consideration. Boss v. State, 489 S.W.2d 582 (Tex.Cr.App.1972); Russell v. State, 468 S.W.2d 373 (Tex.Cr.App.1971). See Bennett v. State, 394 S.W.2d 804 (Tex.Cr.App.1965), and 5 Tex.Jur.2d, Section 171.

In his supplemental brief, Canada contends that the indictment was fundamentally defective in that it charged injury to a person “less than fifteen years of age” rather than to a person “fourteen years of age or under.”

He also claims that there was a fatal variance between the indictment and the judgment, which recites the statutory language of “fourteen years of age or under.”

The phrases are identical in meaning; the contentions are without merit. Phillips v. State, 588 S.W.2d 378 (Tex.Cr.App.1979).

Appellant’s final contention is that the State failed to prove that appellant hit Rebecca Reed with a belt in Dallas County as alleged in the indictment, asserting that the only such assault testified to by Julia Reed occurred in Arkansas. Julia Reed testified that such an assault occurred in February, 1977, after Canada and Reed had returned to Texas. In addition, the court heard ample proof of the twisting by appellant of Rebecca Reed’s leg. Proof of one of the means alleged is sufficient. Papes v. State, 494 S.W.2d 910 (Tex.Cr.App.1973). No reversible error has been shown.

The judgment is affirmed.


author: ONION, Presiding Judge.

text:
    Maurice McELWEE, Appellant, v. The STATE of Texas, Appellee.
    No. 54136.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1979.
    Steven M. Mason and Wilson McVicker, Jr., Lufkin, for appellant.
    Gerald A. Goodwin, Dist. Atty., Lufkin, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

ONION, Presiding Judge.

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

On original submission, a panel of this court affirmed this murder conviction, wherein the punishment assessed was ninety-nine (99) years’ imprisonment. We held, among other things, that the appellant’s rights against being placed in double jeopardy had not been violated. After granting appellant’s petition for certiorari to this court, the United States Supreme Court vacated the judgment of this court and remanded the cause for further consideration in light of the decision in Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), which held that the federal procedure as to the time when jeopardy attaches in a criminal trial was preferable to the various procedures followed by the states, and therefore constitutionally mandated.

A brief recitation of the facts pertinent to the dispositive issue in this cause might be helpful. In October of 1974, the appellant was indicted for murder. No prior convictions were alleged in the indictment. On February 4, 1975, the case was called to trial and the jury was impaneled and sworn. However, the indictment was not read nor did the appellant plead to the indictment. In fact, the proceedings advanced no further at that time because the trial judge was engaged in another trial. After being admonished, the jury was told to return on February 7, 1975 for trial. Because of a delay in the progression of the trial already underway, the trial judge was forced to delay the trial again until February 10. However, prior to this date, the State moved for dismissal of the indictment so that newly discovered previous felony convictions of the appellant could be added for enhancement of punishment purposes in a new indictment. The motion was granted and the jury was discharged. Appellant was reindicted for murder in March of 1975. The new indictment, which reflected two prior felony convictions, was sustained on March 24, 1975, when appellant’s plea of former jeopardy was overruled by the trial court. The trial commenced before a new jury on December 9,1975, which resulted in the appellant’s conviction and this appeal.

In affirming appellant’s conviction, this court held in pertinent part as follows:

“The Fifth Amendment to the United States Constitution provides that ‘. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb . . . .’ and this provision of the Fifth Amendment was made applicable to the states under the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Taylor v. State, 474 S.W.2d 207 (Tex.Cr.App.1972); Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970).
“Under the federal case law, a termination of the trial after jeopardy attaches can only be proper when required by ‘manifest necessity’ or the ‘ends of public justice,’ and jeopardy generally attaches when the jury is selected and sworn. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 525 (1973); United States v. Jorn, 400 U.S. 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).
“However, it has long been the rule in Texas that jeopardy does not attach until the jury is selected and sworn and the defendant pleads to the indictment. Lockridge v. State, 522 S.W.2d 526 (Tex.Cr.App.1975); Vardas v. State, 518 S.W.2d 826 (Tex.Cr.App.1975), cert. den. 423 U.S. 904, 96 S.Ct. 206, 46 L.Ed.2d 135 (1975); Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973); Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047 (1922); Verger v. State, 41 S.W. 621 (Tex.Cr.App. 1897); Anderson v. State, 24 Tex.App. 705, 7 S.W. 40 (1886).
“Finding no compelling reason to overturn this longstanding rule, we adhere to those holdings and overrule appellant’s first ground of error. He was not placed in jeopardy when the jury was selected and sworn on February 4, 1975, and thus his subsequent trial on the new indictment was not barred by the Fifth Amendment to the United States Constitution.”

The Supreme Court has vacated this holding in light of their opinion in Crist v. Bretz, supra. The relevant facts in Crist are summarized as follows from the opinion of the Court as delivered by Justice Stewart:

“The appellees, Merrel Cline and L. R. Bretz, were brought to trial in a Montana court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence. A jury was empaneled and sworn following a three-day selection process. Before the first witness was sworn, however, the appellees filed a motion drawing attention to the allegation in the false pretenses charge that the defendants' illegal conduct began on January 13, 1974. Effective January 1,1974, the particular statute relied on in that count of the information, Mont.Rev.Codes Ann. § 94-1805 (1947), had been repealed. The prosecutor moved to amend the information, claiming that ‘1974’ was a typographical error, and that the date on which the defendants’ alleged violation of the statute had commenced was actually January 13, 1973, the same date alleged in the grand larceny count. The trial judge denied the prosecutor’s motion to amend the information and dismissed the false pretenses count. The State promptly but unsuccessfully asked the Montana Supreme Court for a writ of supervisory control ordering the trial judge to allow the amendment.
“Returning to the trial court, the prosecution then asked the trial judge to dis-. miss the entire information so that a new one could be filed. That motion was granted, and the jury was dismissed. A new information was then filed, charging the appellees with grand larceny and obtaining money and property by false pretenses. Both charges were based on conduct commencing January 13,1973. Other than the change in dates, the new false pretenses charge described essentially the same offense charged in the earlier defective count.”

The defendants were convicted by a new jury under the allegations of the new information. Appeal was taken from that conviction which ultimately resulted in the decision under which we must now modify a rule which has long been recognized as a procedural doctrine in this as well as in other states and the federal system. See, e. g., Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Vardas v. State, 518 S.W.2d 826 (Tex.Cr.App.1975), cert. den. 423 U.S. 904, 96 S.Ct. 206, 46 L.Ed.2d 135 (1975); Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973); Anderson v. State, 24 Tex.App. 705, 7 S.W. 40 (1886).

In foisting upon the states a requirement of uniformity under the guise of a constitutional mandate, the 5-4 majority in Crist v. Bretz, supra, concluded there should be no variance between jurisdictions as to when jeopardy attaches in a jury trial. It was concluded that Montana’s rule that jeopardy attaches only after the first witness is sworn was repugnant to the constitutional safeguards against double jeopardy.- To this extent, it was decided that the federal rule that jeopardy attaches when the jury is impaneled and sworn, was preferable and therefore rationalized that the rule “both reflects [as well as] protects the defendant’s interest in retaining a chosen jury,” and is, therefore, “an integral part of the constitutional guarantee against double jeopardy.” 437 U.S. at 38, 98 S.Ct. at 2162.

It now becomes the duty of this court to render a decision in the instant case which conforms our rule concerning the attachment of jeopardy to the federal timetable, now sanctified as a constitutional imperative. This should not be done, however, without an examination of the origin of the Texas rule and the study of the policies behind its application.

The creation of a safeguard against double jeopardy appeared in the Constitution of the State of Texas in 1845:

“No person for the same offense shall be twice put in jeopardy of life or limb, nor shall a person be again put upon trial for the same offense after a verdict of not guilty; and the right of a trial by jury shall remain inviolate.” Article I, § 12, Constitution of the State of Texas, Vol. I, Paschal’s Annot. Digest, Laws of Texas, p. 48 (1873).

This language was somewhat modified in 1856 and incorporated into the Code of Criminal Procedure:

“No person for the same offense can be twice put in jeopardy of life or limb. This is intended to mean that no person can be subjected to a second prosecution for the same offense, after having been once prosecuted in a court of competent jurisdiction, and duly convicted.” Article 2484 [18], Code Criminal Procedure, Vol. I, Paschal’s Annot. Digest, Laws of Texas, p. 476 (1873).

These protections have consistently been included as they evolved with the constitutional law of this state. Article I, § 14 of the Texas Constitution now provides:

“No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” The statutory provision of the present day Code of Criminal Procedure still parallels the constitutional language. Article 1.10, V.A.C.C.P. (1965), provides:

“No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

In perhaps the earliest judicial interpretation of the constitutional provisions, it appeared that Texas would require a final conviction before jeopardy would attach. Moseley v. State, 33 Tex. 671 (1870). However, this view was shortlived. In Powell v. State, 17 Tex.App. 345 (1884), the court adopted a procedure seemingly similar to the federal rule which we are now compelled to apply. In Powell, it was held that jeopardy attaches to a defendant when he is put to trial in a court of proper jurisdiction, under an indictment or information sufficient to confer that jurisdiction, and in which a jury has been impaneled and sworn. However, as this rule was applied in Shoemaker v. State, 58 Tex.Cr.App. 518, 126 S.W. 887 (1910), if, before a verdict was reached, “the state discovers that the bill of indictment is fatally defective, the court may dismiss, and such dismissal is not equivalent to a verdict, and the jeopardy will not attach unless there is a valid bill of indictment.” 126 S.W. at 888. (Emphasis added.)

Although it had earlier origins, the rule which eventually evolved into the now abrogated Texas procedure was perhaps best outlined in Farm v. State, 138 Tex.Cr.R. 580, 137 S.W.2d 1019 (1940). Quoting with approval from 12 Tex.Jur. 537, the court stressed the significance of the rule that jeopardy should attach at the point in the trial when the defendant, facing an impaneled and sworn jury, pleads to the indictment:

“The plea of the defendant is an essential part of the preliminary proceedings, and until he has pleaded he is not in jeopardy, though the jury had been sworn to try him.”

In addition, the court, focusing on the various and relevant questions of policy, advanced the following explanation of this procedure:

“ ‘Though the jury has been impaneled and sworn, there is still no jeopardy, therefore no bar to second proceeding, unless the court is clothed with authority, and prior proceedings are such that a judgment upon the verdict duly returned will be valid . . . . The plea commonly put in at the arraignment is an essential part of the proceeding, so that, until an indicted person has pleaded, he is not in jeopardy, though a jury has been sworn to try him . . (Citations omitted.) (Emphasis added.)

Therefore, operating under the long established premise that where no plea is entered in a trial, the trial is a nullity as there is no issue for either the jury or the court to determine, this court has consistently applied the rule that jeopardy does not attach until the indictment has been pled to. These considerations of policy which have long been scrutinized by both the state and federal judiciary should not be cast aside at the instance or purpose of mere conformity. Nonetheless, we now abandon these historically sound considerations of procedure and policy for an ill-disguised mandate for uniformity.

Judicial economy and the saving of crucial time in the judicial process will be encroached upon by this decision. It has been a growing practice for courts to conduct the voir dire examination of the jury panels and the selection of the juries in several cases at the commencement of a week and then try these cases as they are later reached on the docket in that week, the next week or so on. Today’s decision, compelled by Crist, may well foreclose an economy designed practice because of the dangers involved in perhaps permitting an obviously guilty defendant charged with murder to go free merely because of a trial court’s efforts to save the time of citizens serving as jurors and the taxpayers’ money in the county where the alleged offense occurred and no issue has been joined by a plea of the accused to the indictment or information. It may well be suggested that we adopt the federal rules of criminal procedure and that we be subject to the changes or revisions, beyond our control, whenever made. So much for federalism.

We now turn to the arguments raised by the amicus curiae brief filed by the Attorney General of the State of Texas. It is contended there, that the Supreme Court’s ruling in Crist should be given only prospective effect, arguing that Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), controls our determination of this issue. In Robinson, the criteria for determining the retroactivity of decisions involving the double jeopardy clause of the Fifth Amendment were enunciated. There, the Supreme Court' noted that the traditional analysis as embodied in the decision of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), which concentrates on protecting “the very integrity of the fact-finding process,” is “not appropriate” in determining such issues in double jeopardy decisions. However, in the course of determining that different considerations applied in determining which constitutional doctrines should be considered retroactive in their application, the Supreme Court did not disturb one of the underlying considerations to the question of retroactive application. This consideration was recognized in Linkletter, supra, wherein it was made clear that a question of retroactive application only arises when “final” judgments are brought before the court for a determination of whether an intervening constitutional doctrine applies. In Linkletter it was held:

“By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio [367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081].” 381 U.S. at 622, note 5, 85 S.Ct. at 1734 n. 5. (Emphasis added.)

The holding in Linkletter clearly emphasizes the initial requirement that a “final” judgment be under consideration before a new constitutional doctrine should be applied retroactively to it.

It is clear that the appellant’s conviction in the instant case was not “final” in the context of Linkletter or under the facts of Robinson v. Neil, supra. This is true, because this remand from the United States Supreme Court is a consequence of appellant’s timely petition for certiorari to this court. Moreover, as noted in Linkletter, supra, although Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was not to be applied retroactively to convictions that became final prior to that decision, it was applied to “cases still pending on direct review at the time it was rendered.” (Citations omitted.) In the instant case, the appellant’s cause was on direct review at the time Crist v. Bretz, supra, was decided.

Therefore, no determination need be made whether Crist is to be given retroactive determination under the guidelines set forth in Robinson v. Neil, supra. We express no view on whether Crist is retroactive to those convictions which became final prior to the decision. This we reserve for another day.

Giving application to the directive of the United States Supreme Court in this cause, we set aside the original judgment of this court and withdraw our mandate, reverse the conviction and remand to the trial court with orders that the prosecution be dismissed on the basis of the principle of double jeopardy.

DOUGLAS, ODOM and PHILLIPS, JJ., concur in the result.

CLINTON, J., not participating.

      . Ralph Waldo Emerson, Essays: First Series (1841).

      . This conclusion was reached over the strong objection of three dissenting justices. In his dissent, Mr. Justice Powell wrote:
      “The rule that jeopardy attaches in a jury trial at the moment the jury is sworn is not mandated by the Constitution. It is the product of historical accident, embodied in a Court decision without the slightest consideration of the policies it purports to serve. Because these policies would be served equally well by a rule fixing the attachment of jeopardy at the swearing of the first witness, I would uphold the Montana statute.” (Emphasis added.)

      . A similar interpretation was made in Spicer v. State, 78 Tex.Cr.App. 57, 179 S.W. 712 (1915).

      . See, Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047 (1922), where the court held as follows:
      “Under the authorities we are of opinion that it should be stated as part of the definition of ‘jeopardy’ that one is not ‘put upon trial’ until the indictment or information is read to the jury and the plea of the accused is heard.”
      See also Yerger v. State, 41 S.W. 621 (Tex.Cr. App.1897). In addition to these provisions, statutes and holdings Article 33.03, V.A.C.C.P., 1965 [580], is noteworthy in this connection. This article is instructive on the question of the longstanding rule on jeopardy by providing that where the defendant voluntarily absents himself after pleading to the indictment or information the trial may continue and it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial.
      Perhaps in view of the revelation in Crist v. Bretz, supra, Article 33.03 was amended in 1979 adding the underlined portion below:
      “In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the iurv has been selected when trial is before a iurv. the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall. not be required at the hearing on the motion for new trial in any misdemeanor case.” (Emphasis added.)

      . See, Fann v. State, supra, and authorities cited therein.

      . Although clothed in a weave of tailored constitutional fiber, the decision in Crist, we are convinced, is in reality nothing more than a requirement for consistency. Certainly, consistency and uniformity must be revered as vital qualities in any system of jurisprudence. But, a sanction which, in essence, requires consistency merely to achieve consistency, is, at best, injudicious and ill-advised. Chief Justice Burger’s dissent in Crist is enlightening in this regard:
      “. . . This is but another example of how constitutional guarantees are trivialized by the insistence on mechanical uniformity between state and federal practice. There is, of course, no reason why the state and federal rules must be the same. In the period between the swearing of the jury and the swearing of the first witness, the concerns underlying the constitutional guarantee against double jeopardy are simply not threatened in any meaningful sense even on the least sanguine of assumptions about prosecutorial behavior. We should be cautious about constitutionalizing every procedural device found useful in federal courts, thereby foreclosing the States from experimentation with different approaches which are equally compatible with constitutional principles. All things ‘good’ or ‘desirable’ are not mandated by the Constitution . . . .”