author: DOUGLAS, Judge.

text:
    Elgin BALDWIN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51266.
    Court of Criminal Appeals of Texas.
    June 23, 1976.

      Stan Brown, Abilene, for appellant.
    Ed Paynter, Dist. Atty., and John W. Weeks, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

Appellant was convicted for the felony offense of credit card abuse under V.T.C.A., Penal Code, See. 32.31(b)(4). Punishment was assessed by the jury at two years.

On original submission, the judgment was reversed because the indictment did not allege an element of the theft statute. The prior opinion is withdrawn.

Appellant contends that (1) the evidence is insufficient to support the conviction; (2) the court erred in failing to quash the indictment; (3) the court should have charged on circumstantial evidence; and (4) the court erred in excluding testimony of a reputation witness.

Sufficiency of the Evidence

Brenda White and her husband Paul White operated White’s Color Photography in a shopping center in Abilene. On October 22,1974, she put her purse by a chair in their store. The purse contained a billfold in which she had the Master Charge credit card alleged in the indictment. She went to another store in the center. Within a few minutes her husband called her. She started toward their store and saw appellant with her billfold in his hand.

Paul White testified that he was in the back of their store when he heard someone enter. As White entered the front part of the store, he saw appellant standing by the chair where his wife put her purse. Appellant was “rising” and appeared to be nervous and said, “Oh, you scared hell out of me. I didn’t know anyone was here.” After appellant left, White immediately went to his wife’s purse and her billfold was not in it. He later saw appellant in the shopping center and got the billfold from him.

Clyde Watson, an Abilene Policeman, who also operated a television store in the shopping center where the Whites operated their business testified he saw appellant walk by his store in a hurry. Then he saw Paul White running toward him. Watson called for the appellant to stop and told him that he was a police officer. Appellant had a light blue billfold in his hand. He arrested appellant.

Appellant testified that he went into White’s store. He saw a purse on the floor with a billfold by it. He picked up the billfold at about the time Paul White came into the room. He related that this scared him. He talked with White about some photographs and then left the store with the billfold in his hand. He went and put his hat and jacket in his car because he was scared. He knew that White was going to call the cops. Appellant walked toward a piano store and stood behind a bush. After he was stopped by Officer Watson, he returned the billfold to White. He also related that he did not intend to steal the billfold.

Appellant admitted taking the property. This with the other testimony was sufficient to support the conviction. The jury was not bound to accept his testimony that he did not intend to steal.

SUFFICIENCY OF THE INDICTMENT

Next appellant contends that the court erred in overruling the motion to quash the indictment. The indictment alleged that Elgin Baldwin, Jr., “did then and there unlawfully, knowingly and intentionally steal a Master Charge credit card belonging to and from Brenda White.”

Sec. 32.31(b)(4), supra, provides:

“A person commits an offense [credit card abuse] if . . .he steals a credit card or, with knowledge that it has been stolen, receives a credit card with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder . . . ”

The original opinion held that the indictment was insufficient because it did not allege that Baldwin took the card with the “intent to deprive the owner of the property” and cited Worthington v. State, 469 S.W.2d 182 (Tex.Cr.App.1971), a case under the general theft statute of the 1925 Penal Code.

In the present case, the motion to quash the indictment was on a different ground than the one relied upon in appellant’s brief. The motion to quash the indictment in part alleges:

“. . . the indictment herein is insufficient in law because it merely alleges that the Defendant did unlawfully, knowingly and intentionally obtain a Master Charge credit card from one Brenda White. Said indictment does not allege, as required by the provisions of Sec. 32.-31(b)(4) of the Texas Penal Code, that the credit card was obtained or stolen by Defendant with the intent to use it, sell it, or transfer it to a person other than the issuer or the cardholder . . .”

The contention in the brief was not presented in a motion to quash. The indictment charges the first mode in which the offense of credit card abuse may be committed under Sec. 32.31(b)(4), supra.

After further consideration, it appears that the indictment in the present case is sufficient to allege the offense of credit card abuse. The indictment followed the terms of Sec. 32.31(b)(4), supra, when it alleged that appellant did “knowingly and intentionally steal” the credit card.

This was sufficient to put appellant and his attorney on notice of the crime (credit card abuse) for which he was charged. There was no such offense titled credit card abuse in the 1925 Code.

We hold that it is not necessary to define theft in a credit card abuse case just as it is not necessary to define theft or set out all of its elements in a burglary case.

Ordinarily an indictment which charges an offense in the terms of the statute is sufficient. See 30 Tex.Jur.2d, Indictment and Information, Sec. 27, n. 13, and cases collated. Since the offense was charged in the terms of the statute, and the pleading gives adequate notice in fact, it is sufficient. See American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598.

This is like the cases under the former Code holding that an indictment charging ordinary theft under Art. 1410 is sufficient for a theft by false pretext conviction under Art. 1413. See Cameron v. State, Tex.Cr.App., 401 S.W.2d 809, and Cameron v. Hauck, 5 Cir., 383 F.2d 966.

V.T.C.A., Penal Code, Sec. 1.05, requires the application of Sec. 2.01 of the Code Construction Act (Art. 5429b-2, V.T.C.S.):

“Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

As used in Sec. 32.31(b)(4), supra, “steal” has that technical meaning given it in Sec. 32.01. In common usage, the term “steal” means “to take or appropriate without right or leave and with intent to keep or make use of wrongfully”. Webster’s New Collegiate Dictionary, 1975. Both the “technical” meaning and “common usage” of the term “steal” carry with their use the “intent to deprive”.

As stated above, such an application to the case at bar conforms to the intent of the Legislature. The new Penal Code was drafted with the intent to eliminate many of the archaic practices which had become entrenched in our law and which served no useful legal purpose. In Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785, this Court recognized that the new Penal Code altered in some way the pleading requirements in burglary. There the Court stated:

“. . . Under the definitions of burglary and theft contained in the V.T.C.A., Penal Code, effective January 1, 1974, supra, although the proof will involve the necessity of establishing the intent to commit the offense of theft (Sections 31.-02 and 31.03, V.T.C.A., Penal Code), the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.”

Similarly in Earl v. State, Tex.Cr.App., 514 S.W.2d 273, the Court recognized that when a term has been legislatively defined the necessity for placing that definition in an indictment is dispensed with, when the substantive offense is defined in terms of a word or words that have been assigned technical meanings.

In Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558, the indictment charged an offense of burglary with intent to commit a felony. This Court held it was sufficient to allege the felony offense as “injury to a child” rather than all of the constituent elements of such offense.

The only other issue that remains is whether Art. 21.05, V.A.C.C.P., requires that the indictment specifically allege “the intent to deprive the owner of the property”. The material portion of this statute provides:

“Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment.”

This provision of the Code of Criminal Procedure has a counterpart in the new Penal Code: Chapter 6 (Culpability Generally). Chapter 6 provides for four “culpable mental states” which are to be used in the Penal Code in defining the various offenses. These culpable mental states — intentional, knowing, reckless and criminal negligence — set forth the various degrees of guilty knowledge which are requisite before culpability attaches.

Unless the definition of an offense clearly dispenses with the requirement of a culpable mental state (a strict liability offense), one of the four above-mentioned “intents” is mandatory. Offenses under the new Code comply with these requirements, and the definition of the offense will generally provide for one of them. If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element. [V.T.C.A., Penal Code, Sec. 6.02(b)] Further, if the definition does not prescribe a culpable mental state but one is required, intent, knowledge or recklessness suffice to establish criminal responsibility. V.T.C.A., Penal Code, Sec. 6.02(c).

In the case at bar, Sec. 32.31(b)(4), supra, does not prescribe one of the culpable mental states. Since the statute does not indicate that the intent was to make this a strict liability offense, Sec. 6.02(b) and (c) require the conduct be done either intentionally, knowingly or recklessly, and one or more of these culpable mental states must be alleged in the indictment. The indictment in the instant case does in fact do this by alleging “knowingly and intentionally”. No other intent appears in the description of the offense, and no other need be alleged. Art. 21.05, V.A.C.C.P.

To require a definition of most of the words or terms in setting out the elements of an offense would be contrary to the intent of the Legislature when it adopted the new Penal Code.

Charge on Circumstantial Evidence

Appellant admitted taking the property and leaving the store with it. When he was stopped by Officer Watson, he returned it. This amounts to direct evidence of the taking. When an accused admits committing the act and only the intent is at issue, no charge on circumstantial evidence is required.

The applicable rule is found in Smith v. State, Tex.Cr.App., 470 S.W.2d 696, where it is written:

“Where the only element proved by circumstantial evidence is that of intent, no charge upon circumstantial evidence is required . . . ”

We hold that the court did not err in refusing the charge.

Exclusion of Evidence

At the punishment stage of the trial Bobbie Jackson testified that he knew appellant’s general reputation as a peaceable, law abiding citizen. The State’s objection on the ground that the witness had not discussed such reputation with anyone in the community was sustained.

In Barber v. State, 168 Tex.Cr.R. 168, 324 S.W.2d 553, this Court held that a witness does not have to hear the reputation of an accused brought to question or discussed before he can testify that such reputation is good. This is different from the rule where a witness proposes to testify that another’s reputation is bad. See Texas Practice, McCormick and Ray, Sec. 653, p. 493.

In the present case, the court should have permitted the witness to answer. However, when the objection was sustained, the witness was not asked for the purpose of the bill of exception what his answer would have been. There was no proffer of what his answer would have been.

In Brown v. State, Tex.Cr.App., 438 S.W.2d 926, the trial court sustained an objection to the testimony of a reputation or character witness. This Court wrote:

“The record contains no offer of proof. It is not shown whether the character witnesses were to testify as to the character or reputation of the appellant, her husband, or the deceased. Nothing is presented for review. Hill v. State, 403 S.W.2d 797; Johnson v. State, 379 S.W.2d 329; Boyett v. State, Tex.Cr.App., 368 S.W.2d 769. See 13A Texas Digest Criminal Law, Key 1120(3); 5 Tex.Jur.2d 354, Sec. 209.”

In Alardin v. State, Tex.Cr.App., 491 S.W.2d 872, this Court wrote:

“Absent a showing of what the excluded testimony would have been or an offer of proof in the form of a statement to the judge, the matter is not properly before us for review. Brown v. State, Tex.Cr.App., 475 S.W.2d 938, 953; Elliott v. State, Tex.Cr.App., 475 S.W.2d 239. See particularly Haynes v. State, Tex.Cr.App., 468 S.W.2d 375.”

No reversible error has been shown. The motion for rehearing is granted and the judgment is affirmed.

ROBERTS, J., concurs in the result.


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Robert David JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 51579.
    Court of Criminal Appeals of Texas.
    June 30, 1976.

      Percy Foreman and Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Sam Adamo, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the possession of heroin which offense was committed on March 16, 1973; appellant waived a jury trial and, pursuant to his election to be sentenced under the Controlled Substances Act, the court assessed punishment at imprisonment for 6 years.

In his sole ground of error appellant contends that the evidence is insufficient because a chain of custody for the subject heroin had not been established. We agree and reverse the judgment.

At a suppression hearing held immediately prior to trial, Officer E. J. Stringfellow testified that on March 16, 1973, in the parking lot of a Holiday Inn in Houston, he saw the appellant throw a balloon from the driver’s window of a car he was operating. Officer Stringfellow seized the balloon and found inside a brownish, powdery substance which, based on his experience, he thought was heroin. He stated that he arrested the appellant, initialed the balloon and, after his partner arrived, took the appellant to the police station and delivered the balloon to police chemist Robert H. Warkentin. Officer Stringfellow was not asked to identify any balloon containing a brownish, powdery substance as being the same one he seized and initialed.

At the conclusion of the hearing, the trial judge overruled appellant’s motion to suppress. Then to save time and avoid having the witness repeat his testimony, the court indicated that Officer Stringfellow’s testimony, subject to the sustaining of objections to conclusory statements he made regarding the merits of the case, would be incorporated in the record of the trial proceedings.

The State called the police chemist, Warkentin, who testified that on March 16, 1973, Officer Stringfellow delivered to him a balloon filled with a substance which he later determined contained heroin. He was shown State’s Exhibit No. 1 and identified it as a plastic bag containing the balloon delivered to him by Stringfellow; he identified his own initials on the balloon. The exhibit was admitted in evidence over appellant’s objection that a proper chain of custody had not been established.

State’s Exhibit No. 1 was never shown to or identified in any manner by Officer Stringfellow; the fact that the chemist identified the balloon as one delivered to him by the officer is not legally sufficient to show that the balloon was the one the officer seized after he saw appellant throw it from a car. In short, there was no showing that State’s Exhibit No. 1 was in any manner connected to the appellant, and therefore the proof is insufficient to show that appellant possessed heroin on the date charged. See and compare Brown v. State, 156 Tex.Cr.R. 144, 240 S.W.2d 310 (1951).

The State contends the case before us is controlled by Salinas v. State, 507 S.W.2d 730 (Tex.Cr.App.1974). However, that case is distinguishable in that there the chain of custody of the package containing the heroin was sufficiently shown to connect the appellant to the heroin. The specific complaint in that case was that the officers were unable to identify the substance in the packages they were shown at trial as being the same substance in the packages which had been delivered to the chemist. On the other hand, in the case before us there was no showing that the powder-filled balloon identified by the chemist was the same one Officer Stringfellow saw appellant throw from his car.

The State also contends that the testimony of Officer Stringfellow at the suppression hearing, wherein he stated that the substance in the balloon appeared to be heroin and that when he “ran a test on the substance” it gave him a “positive reaction,” was, standing alone, sufficient to establish that appellant was in possession of heroin as alleged. In support of this position the State offers the case of Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466 (1959), where it was held that a narcotics officer’s testimony that he had seen a great deal of marihuana and could recognize it when he saw it was sufficient to qualify him as an expert and to show that the accused did possess marihuana. See also Jordan v. State, 486 S.W.2d 784 (Tex.Cr.App.1972); Satery v. State, 455 S.W.2d 294 (Tex.Cr.App.1970). However, when the trial judge incorporated Officer Stringfellow’s suppression hearing testimony in the record of the trial proceeding, he stated that he would sustain objections to conclusory remarks made by the officer concerning the merits of the case; therefore, the officer’s statements regarding the chemical make-up of the brown, powdery substance in the balloon were not in evidence and cannot be made the basis of a finding that the appellant possessed heroin on the date charged.

Appellant’s challenge to the sufficiency of the evidence is sustained.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Curtis PRIDE, Appellant, v. The STATE of Texas, Appellee.
    No. 51777.
    Court of Criminal Appeals of Texas.
    June 30, 1976.
    John R. Saringer, Abilene (Court-appointed), for appellant.
    Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of aggravated robbery. Punishment was assessed by the jury at thirty years. The defense was insanity.

On January 31, 1975, appellant left Odessa by bus for Houston. On a stop-over in Abilene he went to the First Presbyterian Church and gained entry by stating that he wanted to use the telephone. He assaulted the church secretary and robbed her of her money as well as the money belonging to the church. She was bound with a coffee pot cord and a sock taken from his foot was placed in her mouth to gag her. After he left, the victim untied herself and crawled to the door and alerted a woman who was passing. The victim gave a detailed description of her assailant. A bus ticket to Houston was found on the floor in the church office. Police later located appellant at the bus station where he had purchased a ticket to Houston. The victim suffered extensive injuries.

Appellant requested a psychiatrist be appointed. The court appointed Dr. James H. Kreimeyer of the Big Spring State Hospital. Dr. Kreimeyer testified on appellant’s competency to stand trial. The jury found him competent. During the trial Dr. Kreimeyer testified to the effect that appellant was insane at the time of the commission of the offense.

The State called Dr. Marvin E. Grice who testified that he examined the appellant in 1972 in regard to a claimed injury and found him to be neurotic. Dr. Grice related that he visited appellant during a lunch hour during the trial. He testified that appellant appeared to be competent and that he was not insane at the time of the commission of the offense.

Appellant contends that the visit to the jail without a previous order by the court violated Article 46.03, Section 3(a), V.A.C. C.P., which provides as follows:

“If notice of intention to raise the insanity defense is filed under Section 2 of this article, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant with regard to the insanity defense and to testify thereto at any trial or hearing on this issue, but the court may not order the defendant to a state mental hospital for examination without the consent of. the head of the state mental hospital.”

There was no attempt to show what questions were asked of the appellant while he was being interviewed by Dr. Grice. The doctor had examined him some three years before and knew his background and observed him and testified that in his opinion the appellant was not insane. The doctor also related that appellant refused to answer his questions but that while he was there appellant ate a sandwich and took a drink and acted normally during the noon hour. It is not clear but apparently from the record appellant was keeping his head on the table in the courtroom when he was being tried.

Even though there was no formal order for an examination by Dr. Grice, the court could have entered an order for an examination under Article 46.02, V.A.C.C.P. The court’s overruling of the objection was tantamount to the approval of the actions of the doctor. What the doctor did was more of an observation instead of an examination. The case could have been recessed so that an examination could have been formally ordered and the same result could have been obtained. No reversible error was committed.

The judgment is affirmed.


author: GUPTON, Judge.

text:
    Joseph PHILLIPS alias Walter Robinson, Appellant, v. The STATE of Texas, Appellee.
    No. 51903.
    Court of Criminal Appeals of Texas.
    June 30, 1976.

      John Mustachio, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Henry Oncken, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

The offense is burglary of a habitation under V.T.C.A., Penal Code, Sec. 30.02; the punishment, enhanced under V.T.C.A., Penal Code, Sec. 12.42(c), 15 years.

Appellant challenges the sufficiency of the evidence. He contends the evidence as to identification of any fruits of the alleged burglary is insufficient because the complaining witness would only testify that the television “seemed” or “appeared” to be the same item that was taken. There is no merit to this argument since the actual commission of a theft is not a prerequisite to the commission of burglary. See Gonzalez v. State, Tex.Cr.App., 517 S.W.2d 785; Adami v. State, Tex.Cr.App., 524 S.W.2d 693. In this case a witness testified to seeing the appellant, who was armed, kicking down the doors of several rooms in the motel and entering them. In light of this testimony, it is unnecessary that the complaining witness be able to identify the television set taken from his room in order to sustain a conviction for burglary. Nevertheless, the complaining witness was able to identify as his the television set found in appellant’s car later the same day, due to a broken antenna on the set which he had repaired. The evidence is sufficient to sustain the jury’s verdict. Jones v. State, Tex.Cr.App., 458 S.W.2d 89.

Appellant’s second ground of error complains the charge failed to conform to the indictment. Appellant’s position is that the court asserted an evidentiary matter in its charge by saying, “ . . . did enter a building then and there occupied, controlled and in the possession of Calvin Simmons, hereinafter called owner, without the effective consent of said owner . . . .” It is appellant’s contention that the charge should track the language of the indictment, which alleged appellant:

“ . . . did then and there unlawfully with intent to commit theft, enter a habitation not then open to the public, owned by Calvin Simmons, hereafter styled the complainant, without the effective consent of the Complainant.” (Emphasis added)

Appellant maintains the indictment alleged the complainant was the “owner” of the premises whereas the charge “broadened his proprietary interest considerably.” We hold this contention to be without merit.

Appellant’s third ground of error is “[T]he penitentiary papers were inadmissible because the evidence statute excepting this practice from hearsay was not followed.” The two pen packets introduced by the State were properly certified under Art. 3731a, Sec. 4, V.T.C.S. See Kanaziz v. State, Tex., 382 S.W.2d 485. Cf. Morgan v. State, Tex.Cr.App., 532 S.W.2d 85. Furthermore, the papers did not contain any extraneous offense or details of the offense for which appellant was convicted. See Mullins v. State, Tex.Cr.App., 492 S.W.2d 277. Cf. Sherman v. State, Tex.Cr.App., 537 S.W.2d 262 (1976). This ground of error is overruled.

In another ground of error appellant asserts the use of an “alias” name in the indictment and in the court’s charge is as incriminating to the appellant as appearing before the jury in jail clothing. When the indictment was read, appellant entered a plea of not guilty but did not object to that portion of the indictment referring to appellant by his given name and an alleged alias. Appellant did not at that time notify the court of his desire to be referred to only by his given name or by the alleged alias.

Appellant was identified in court as the man seen breaking into the motel. Appellant did not object to the prosecutor’s remark to let the record reflect the witness had identified Joseph Phillips alias Walter Robinson. No incriminating evidence relating to the “alias” appears in the record. We fail to see how appellant was harmed by the reference to his given name and alleged alias in the court’s charge. This contention is overruled.

We note that the judgment reflects that the jury found appellant had been twice previously convicted of felonies less than capital, and assessed his punishment at 15 years under the charge of the court which instructed the jury as follows:

“You are further instructed that if you find beyond a reasonable doubt that the defendant is the same person who was convicted in Cause No. 113165 or Cause No. 153811 or both, then you will assess his punishment at life or any term of years not less than fifteen (15) years or more than ninety-nine (99) years in the Texas Department of Corrections.” (Emphasis added)

The indictment alleged two prior convictions for felonies less than capital, for enhancement of punishment under Sec. 12.-42(d), V.T.C.A., Penal Code. The proof, however, failed to show the two prior felonies to be in the proper time sequence required for enhancement under Sec. 12.42(d). This defect in proof, however, would still permit enhancement under the terms of Sec. 12.42(c), V.T.C.A., Penal Code, upon finding a prior conviction for either of the two priors alleged. The court’s charge properly submitted the issue under that section, and also submitted the proper range of punishment. The sentence, however, recites that appellant shall be confined for “not less than 5 years nor more than 15 years.” Under the applicable enhancement provision, the term assessed was the minimum term available. Pronouncement of sentence, therefore, should not have applied the indeterminate sentence law. Art. 42.09, Sec. 1, V.A.C.C.P. Accordingly, the sentence must be reformed by striking the words “not less than 5 years nor more than” from the context above quoted.

The judgment and sentence recite appellant had twice previously been convicted of a felony offense. The judgment and sentence are hereby reformed to show appellant had been once previously convicted of a felony offense.

The judgment as reformed is affirmed.


author: KEITH, Commissioner.

text:
    Bill SWEED, Appellant, v. The STATE of Texas, Appellee.
    No. 51990.
    Court of Criminal Appeals of Texas.
    June 30, 1976.
    Bart Cox, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and William E. Moody, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

The jury found appellant guilty of burglary of a habitation under an indictment which contained an enhancement paragraph charging that appellant had theretofore been convicted of a felony. The jury assessed his punishment at confinement for twenty-five years.

Appellant does not challenge the sufficiency of the evidence; and, under our view of the record, we need discuss only appellant’s second ground of error complaining of the jury’s discussion of the law of parole while deliberating upon his punishment. Strangely, neither council mentions our opinion in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975), which we find to be dis-positive of the case.

It was established upon the hearing of the amended motion for new trial that the jury violated the court’s instructions not to consider the law of parole in their deliberation. Juror Dennis S. Wagner, Jr., testified that during their deliberations on punishment there was a lengthy discussion as to what portion of any sentence appellant would have to serve. One juror, according to Wagner, professed to know the law of parole, as it related to juveniles, and stated that appellant would have to serve only about a third of any period fixed by the jury. Wagner said that this discussion, some of which is set out in the margin, caused him to agree to an increase of the punishment from fifteen years to twenty-five years.

State’s counsel argues that under the rationale of Jones v. State, 462 S.W.2d 578 (Tex.Cr.App.1970), reversible error can be shown only when the law has been incorrectly stated by a juror who professes to know the law. This rule was repudiated in Heredia, supra, where the development of the rule was explained in this language:

“Demolli v. State, Tex.Cr.App., 478 S.W.2d 554 (1972), added to the Jones requirement: not only must there be a misstatement of the law, but the speaker must profess to know the law. This two-prong assertion was repeated [in two later cases]. In Powell v. State, Tex.Cr.App., 502 S.W.2d 705 (1974), a variation was announced: there must be a misstatement of the law and the misstatement must be relied upon as true by some other juror. Whether the speaker actually asserted it as true or professed to known the law was not mentioned as an element.” (528 S.W.2d at 851)

Under the undisputed record which we review, the jury did discuss the law of parole during their deliberations upon the punishment of appellant; they did receive erroneous information as to the law on the subject; at least one of the jurors [Wagner] voted to increase the punishment after receiving such information. We follow Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168 (1946), as explained in Heredia, supra, saying: We are convinced that the appellant was deprived of a fair trial because the comment of the juror had the effect of bringing about a greater punishment, and this regardless of whether it was a misstatement of the law or not. (See 528 S.W.2d at 851, discussing the holding in Price.)

While not every showing of the receipt of other evidence by the jury during their deliberations will require a reversal [Heredia, supra (528 S.W.2d at 853, fn. 3)], information given to the jury during their deliberations which is a misstatement of the law, constitutes “other-testimony, as defined in Article 40.03, subdivision 7, V.A. C.C.P. Under this undisputed record, the misstatement of the law permeated the jury deliberation and, unlike Heredia, it was not stopped by the foreman. We have determined from this record that the misconduct constituted such degree of misconduct as to deny the appellant “a fair and impartial trial.” Article 40.03, subdivision 8, V.A.C.C.P.; Heredia, supra.

Because of the misconduct of the jury, the judgment of the trial court must be reversed. In view of the possibility of another trial, we suggest that it would be appropriate to remove the legend “4 — 16-71” from the mug shot introduced in evidence upon this trial. See and compare Harlan v. State, 416 S.W.2d 422, 423 (Tex.Cr.App.1967). See also, Richardson v. State, 536 S.W.2d 221, 223 (Tex.Cr.App.1976).

Reversed and remanded.

Approved by the Court.

      . “During your deliberations you are not to consider or discuss the indeterminate sentence law or the possible actions of the Board of Pardons and Paroles or how long the defendant will be required to serve the punishment which you assess.”

      . “Q. What was the statement that was made, or the various statements, as to how long he would serve?
      “A. It came up that if he was given fifteen years, the Defendant would spend five; and, if he was given twenty-five he would actually have to spend nine or five depending upon the length of the term given.”

      . This is the language of the rejection in Here-dia, supra: “The State contends that before reversal will be ordered for jury discussion of the parole law it must appear that the juror who makes such a statement must profess to know the law. With this statement we cannot agree,...” (528 S.W.2d 850).

      .The statement that appellant need serve only a third of his sentence is palpably erroneous since many other factors enter into a determination of eligibility to parole. See Art. 42.12, § 15, subdivisions (a) and (c), V.A.C.C.P.
      Assuming, arguendo, appellant established his eligibility to parole, the statement that he would serve only nine years if assessed a 25-year sentence, is incorrect. Art. 42.12, § 15, subdivision (a), supra.

      . Wagner’s testimony stands unrebutted and unchallenged in our record. Thus, the trial court was not in position to disregard such testimony in making his finding; and, it follows that the court erred in overruling the motion for new trial complaining of the misconduct of the jury. McDaniel v. State, 165 Tex.Cr.R. 402, 308 S.W.2d 24, 26 (1957); Stallworth v. State, 148 Tex.Cr.R. 255, 186 S.W.2d 252, 255 (1945). See, also, Hartman v. State, 507 S.W.2d 557, 560-561 (Tex.Cr.App.1974).


author: ODOM, Judge.

text:
    Willie LANG, Appellant, v. The STATE of Texas, Appellee.
    No. 52183.
    Court of Criminal Appeals of Texas.
    June 30, 1976.
    Rehearing Denied July 19, 1976.
    J. Michael Jaynes, Dallas, for appellant.
    Henry Wade, Dist. Atty., Edgar A. Mason and Robert Whaley, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty appellant was convicted of attempted aggravated robbery, punishment was assessed at ten years, imposition of sentence was suspended, and appellant was placed on probation. One of the terms of probation was that appellant commit no offense against the laws of this or any other state or the United States.

Subsequently the State filed a motion to revoke probation alleging that appellant violated the terms of his probation by committing the offenses of escape (V.T.C.A. Penal Code See. 38.07) and possession of a short-barrel firearm (V.T.C.A. Penal Code Sec. 46.06). The trial court, after hearing evidence on the motion to revoke, found appellant had not committed the offense of • escape, but had possessed a short-barrel firearm. Probation was revoked and sentence pronounced.

Appellant contends the trial court abused its discretion when it revoked his probation because the evidence is insufficient to show that the object found in his possession is a short-barrel firearm as that term is defined by statute.

V.T.C.A. Penal Code Sec. 46.01(10), provides:

“ ‘Short-barrel firearm’ means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.”

Although the alleged short-barrel firearm was introduced in evidence as State’s Exhibit 1, there was no testimonial evidence of its barrel length or overall length. The trial court examined the exhibit and recited the following findings of fact regarding its physical characteristics:

“The Court is quite familiar with the fact that bird shot or rat shot may be fired in the rifle. The Court has personally fired rat shot in a .38 caliber pistol with a barrel on it three inches long and that inasmuch as the weapon has rifling the Court is not going to hold that a .38 caliber pistol is a shotgun within the terms of that understanding, otherwise every pistol in the United States would be a sawed-off shotgun because it is capable of firing rat shot in catridges [sic] designed to fit those particular weapons. The Court will not hold that this is a shotgun or any part thereof. Further examination of the weapon shows that the front site is attached and also that the end of the muzzle is beveled and there appears to be no evidence on this particular exhibit, State’s Exhibit No. 1, that the barrel has been reduced in size from the date of its original manufacture. It appears to be some fifteen to eighteen inches long from the end of the chamber immediately in front of the opening for the magazine and the bolt in a closed position and into the muzzle.”

From these findings it is clear that the alleged short-barrel firearm is neither a short-barrel shotgun nor an altered short-barrel firearm. To be a short-barrel rifle under the statute the barrel must be less than sixteen inches in length. The weapon (a .22 caliber rifle) is before this Court and upon examination and measurement of the length of the barrel, we find it is eighteen inches in length. We therefore hold the evidence is insufficient to support the trial court’s conclusion that appellant possessed a short-barrel firearm.

The trial court having abused its discretion, the order revoking probation is set aside and the cause is remanded.

      . The exhibit was obtained pursuant to the order of the Court under Art. 40.09(15), V.A.C.C.P.


text:
    Josepha HOLIFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 51745.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Robin M. Green, Amarillo, for appellant.
    Thomas A. Curtis, Dist. Atty., Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of burglary of a building with intent to commit theft. The court assessed punishment at ten years.

The sufficiency of the evidence is unchallenged. Appellant contends that a new trial should have been granted because the jury was not allowed to express their feelings to the court after it had returned a verdict and that the judge was disqualified because at one time he was a district attorney in an adjoining county and had instituted prosecution against her for another offense. These contentions are overruled.

In the early morning hours of January 9, 1974, a burglary occurred at the Catching Pharmacy located at 811 Lamar Street, Amarillo. While the burglary was in progress, police arrived on the scene and found that a hole had been chopped in the roof of the pharmacy. Appellant and three companions were arrested at the scene.

In her first ground of error, appellant contends that the trial court erred in refusing to grant a new trial because several jurors stated in their affidavits that they thought their deliberations were not complete at the time their verdict was returned and that the court declined to hear their opinion when they returned the verdict.

The trial lasted three days. The jury received the court’s charge the afternoon of the second day, March 18,1975. At approximately 6:05 p. m., the jury foreman sent to the court a note as follows: “It appears that the jury is unable to reach an unanimous verdict.” The jury was returned to the jury box and inquired of by the court as to its numerical split without having the foreman state it in terms of guilty or not guilty. The foreman replied that it was an 11-1 split. The court then inquired of the foreman as to whether or not he felt further deliberation in the morning would be meaningful after the jury had the night to think it over. In response the foreman stated that he could not speak for the one individual but that he thought the jury would be willing to wait and see. At 9:00 o’clock the next morning the jury resumed its deliberations. At 9:45 a second note was received from the jury as follows:

“. . . ‘Judge Dowlen, the jury requests clarification concerning Paragraphs 7 and 8 of the Charge to the Jury. Paragraph 7, is intent known only subjectively, that is, known only to the Defendant in her own mind, and then known only to the jury by her testimony of how she felt, or can intent be known ultimately by a person’s actions?’ ”

and,

“ ‘Paragraph 8. Is a person responsible for what he hears while intoxicated, as well as any resulting actions? By hears, we want to include what was said in her presence.’ ”

By agreement of counsel and the appellant herself, the following written reply was sent to the jury by the court:

“. . . ‘Mr. McGee, I can only refer you to Paragraphs 6 and 7 which read together constitute the law concerning intent in this case.
“ ‘Concerning Paragraph 8, intoxication, I can only refer you to the Court’s Charge.’ ”

At 11:45 a. m. another note was received from the jury as follows:

“. . . ‘Judge Dowlen, is it permissible to have read into the record of this case an opinion of the jury which would not affect the verdict, but express the feeling of the jury? We have reached a unanimous decision on this case.’ ”

The jury was returned to the jury box after argument by the prosecutor that such opinion should not be allowed to be read into the record. When the jury returned, the court asked the foreman, “Mr. McGee, has the jury reached a verdict?”, to which McGee responded, “Yes, sir, we have.”

The verdict was then read aloud by the court followed by the inquiry, “Ladies and gentlemen, is this your verdict?” The jury answered affirmatively. Defense counsel then requested the jury be polled and each member of the panel was asked individually if the verdict as read was his or her verdict and each juror answered affirmatively. The jury was then discharged with instructions that they were now free to discuss the case with counsel if they desired and could give or not give an affidavit. Defense counsel objected to their discharge.

A hearing was then held so that defense counsel might perfect his bill of exception to the court’s order discharging the jury. At this hearing eight jurors testified, two of which testified that they had never intended to vote guilty and had been misled or tricked into doing so. Three others testified that in their minds deliberations had not been completed when their verdict was returned. A ninth juror submitted an affidavit at a later date wherein she stated that deliberations had not ended and that she too had never intended to enter a final vote of guilty. It is urged that these jurors were under the impression that their deliberations were not completed until after the trial court considered the formal statement they requested to make in their third note to the court. Yet, in their third note wherein they requested to make a statement to the court, the jury had written, “we have reached a unanimous decision on this case.” The jury, as noted earlier, was polled and each juror acknowledged the verdict as his own in response to individual questioning by the court. Jurors will not be permitted to impeach their verdicts by giving their reasons for agreeing thereto.

The extenuating circumstances apparently concerned the testimony that appellant was intoxicated at the time the offense was committed.

Even though one or more jurors may have disagreed with a portion of the court’s charge which stated that voluntary intoxication is no excuse for committing a crime and at least one juror had misgivings about returning a guilty verdict, this is not grounds for granting a new trial. Simmons v. State, 493 S.W.2d 937 (Tex.Cr.App.1973); Hill v. State, 493 S.W.2d 847 (Tex.Cr.App.1973); Arnold v. State, 486 S.W.2d 345 (Tex.Cr.App.1972), and Adams v. State, 481 S.W.2d 884 (Tex.Cr.App.1972). No misconduct of the jury has been shown.

The conscientious jurors in this case, in keeping with their oath, followed the instructions of the court concerning the law even though some of them were not happy in doing so. Even though some of the jurors were not pleased with the law as submitted to them, this does not require setting aside the verdict.

In her second ground of error, appellant alleges that it was error for the trial judge, the Honorable George E. Dowlen, not to have disqualified himself from hearing this case because he had been acting prosecutor in a case which was still pending against her in Randall County. Her contention is without merit.

The prohibition found in Article 5, Section 11 of the Texas Constitution and Article 30.01, V.A.C.C.P., against a judge hearing a case in which he has acted as counsel requires that he actually have participated in the very case which is before him and it is not necessary that an objection be made. The record in the instant case shows that Judge Dowlen had been the district attorney in Randall County when two cases were pending against appellant, one in district court and another in county court. The district court case had been dismissed on January 7, 1974, and the case in county court was still pending at the time of this trial in Potter County. The evidence showed that Judge Dowlen had never participated in the prosecution of this case. He was not disqualified from sitting in the instant case. Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973); and Rodriguez v. State, 489 S.W.2d 121 (Tex.Cr.App.1973).

No error having been shown, the judgment is affirmed.


text:
    Tommy Joe HOLT, Appellant, v. The STATE of Texas, Appellee.
    No. 51854.
    Court of Criminal Appeals of Texas.
    July 7, 1976.

      Douglas H. Parks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, James D. Burnham and Dale Markland, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at ninety-nine years.

The only grounds of error challenge the legality of appellant’s warrantless arrest and of the accompanying search of the motel room where the arrest occurred. The search revealed guns used and money and drugs taken in the pharmacy robbery of which appellant stands convicted.

The record of the hearing upon the motion to suppress reflects that a few hours after the robbery Officer Chadwell of the Port Worth Police Department received a telephone call from a confidential and reliable informant who stated that he had seen two males and a female in a red Mustang automobile suspiciously deposit some items in a large garbage dumpster and then leave. The informant noted the Oklahoma license plate number and investigated the dumpster, finding a large number of drug boxes and a small quantity of drugs.

Officer Chadwell then related this information to Officer Senkel of the Dallas Police Department. Senkel stated that earlier in the day two males in a red Mustang with Oklahoma license plates had committed a robbery at a pharmacy. A police bulletin containing these details was then broadcast.

Within minutes another police officer found the red Mustang with the correct license plate number parked at a motel in River Oaks less than one-half mile from the dumpster where the informant had found the drug boxes and drugs. Several officers were dispatched to the motel.

Officer Lassiter talked to the motel desk clerk, who stated that two males fitting the description of the robbery suspects and one female had checked into the motel room directly adjacent to where the Mustang was parked. The clerk also knew that one of the males had recently been taken in a taxicab to the airport, but that the other two occupants were still in the room.

The officers knocked on the door of the motel room and were invited to enter by a female, who then sat on a bed. Appellant was sitting in a chair. Both were placed under arrest. The officers then searched the female’s purse, which was located next to her on the bed. The purse contained a pistol. Suitcases in the room were opened and searched and large quantities of money and drugs and another pistol were found. The arrest and search were completed shortly after 6:00 p. m.

All of the above described events, from the discovery of the items in the dumpster by the informant to the arrest and search of appellant, took approximately thirty minutes.

Appellant contends that his arrest was illegal because no warrant was obtained. We disagree.

Article 14.04, V.A.C.C.P., provides:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

There was ample probable cause to believe that appellant had committed a robbery a few hours prior to the arrest. He was found in a motel room and in possession of a car with the reported Oklahoma license plate. The man who the police officers had probable cause to believe had assisted appellant during the robbery had already escaped. The police officers testified at the hearing that it might have taken two or three hours to find a magistrate and obtain an arrest and search warrant and that the arrest was quickly effected so as to preclude any possibility of escape. Under these circumstances, the officers reasonably concluded that quick action was necessary to preclude appellant’s imminent escape. Cf. Honeycutt v. State, Tex.Cr.App., 499 S.W.2d 662. The warrantless arrest was clearly authorized under the statute cited. Cf. U. S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598.

Appellant next contends that the scope of the search exceeded the permissible bounds of a search incident to a lawful arrest. This contention has no merit.

The purse and suitcases searched were all within a few feet of where appellant and his female companion were arrested. The police officers were authorized to search these items, as well as the arrestees’ persons, to secure their own safety and to prevent the destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The judgment is affirmed.


author: DALLY, Commissioner:

text:
    Jerry G. HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51952.
    Court of Criminal Appeals of Texas.
    July 7, 1976.

      Douglas M. Kennedy, Jack E. Hunter, Corpus Christi, for appellant.
    Jot B. Law, County Atty., pro tern., Rock-port, John H. Flinn, Dist. Atty., Sinton, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner:

This is an appeal from an order revoking probation.

On September 6, 1974, the appellant was found guilty of the offense of burglary of a vehicle; the punishment assessed was imprisonment for 3 years and a fine of $200. The imposition of sentence was suspended and the appellant was granted probation.

On February 13, 1975, probation was revoked after the court found the appellant had violated a condition of probation when he on December 15, 1974, unlawfully, intentionally and knowingly possessed a usable quantity of marihuana. Sentence was imposed on April 30, 1975.

The appellant asserts that the trial court abused its discretion in revoking probation. He contends that illegally obtained evidence was admitted and that the evidence failed to show he possessed marihuana or in the alternative that the evidence failed to show he possessed a usable amount of marihuana. He also contends the court erred in refusing his request to recall two prosecution witnesses.

On December 15, 1974, Sam Arrington, a police officer in Aransas Pass, observed an automobile in which there were two persons leave the Sea Breeze Motel. He then received a call concerning a window peeper at the Sea Breeze Motel and in connection with this incident was given a license plate number and the description of a vehicle.

He then found the automobile which had been described to him parked near the Shamrock restaurant and bar. This was the same automobile that he had seen leaving the Sea Breeze Motel. Officers placed the automobile under surveillance. At about 10:00 p. m. the appellant and his brother got in the automobile and left. The officers stopped the automobile at a nearby intersection.

Officer Arrington stopped behind and Officer Keller stopped in front of the automobile driven by the appellant. Officer Ar-rington went to the driver’s side of the automobile and questioned the appellant. Officer Keller went to the passenger side of the automobile and asked Juan Hernandez to step out of the automobile. By the light of his flashlight and a street light where the car was stopped Keller saw a cellophane bag on the floorboard of the automobile about five inches ahead of the front passenger’s seat. The bag contained a green plant substance which Keller thought was marihuana. Arrington stated that there was also a matchbox containing roaches in the “glovebox” of the car; he said the matchbox was not visible to the driver. Officer Hudgens stayed behind the car on the passenger’s side as a precautionary measure. He did not see anything untoward in the car until after the appellant and his brother had been arrested and placed in one of the patrol cars. He then drove the car which had been driven by the appellant to the police station. He testified that when he was driving the car he found on the dashboard a matchbox and an ashtray, both containing what he believed to be marihuana roaches.

The officers testified fully concerning the stopping of the automobile and finding the marihuana before any objection was made that it was unlawfully obtained. The appellant’s objection made after all of this testimony had been elicited came too late.

If the marihuana was obtained unlawfully, the error in admitting it in evidence was waived by the failure to make a timely objection. Ashford v. State, 502 S.W.2d 27 (Tex.Cr.App.1973); Smith v. State, 456 S.W.2d 90 (Tex.Cr.App.1970). This contention is overruled.

Appellant next contends the trial court erred in refusing to allow him to recall Officers Arrington and Keller. Officer Keller had earlier testified and was cross-examined; Officer Arrington had already been recalled once and was cross-examined each time he testified.

Appellant’s stated purpose in recalling the officers was to probe the circumstances surrounding the arrest and seizure of marihuana in order to show that the marihuana was unlawfully obtained. We concluded in the previous ground of error that even if the marihuana had been obtained unlawfully, the error in admitting it in evidence was waived by the failure to make a timely objection. Therefore, appellant would have been in no better position even if he had recalled the officers and through their testimony clearly established that the marihuana had been unlawfully obtained. The error, if any, in refusing to allow the officers to be recalled, was harmless. This contention is'overruled.

Appellant next contends that the evidence was insufficient to show that he possessed marihuana.

To establish unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972); Rodriguez v. State, 372 S.W.2d 541 (Tex.Cr.App.1963).

Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972); Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972). However, a finding of joint possession cannot be justified solely on the basis of proof of mere presence at a place where contraband is being used or possessed. Payne v. State, supra; Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972); Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1972); Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). It was stated in Brown v. State, 481 P.2d 475 (Okl.Cr.1971), that “[pjossession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed.” Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts. Payne v. State, supra, and the cases there cited; Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973); Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973). This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control. Hineline v. State, supra; Alba v. State, 492 S.W.2d 555 (Tex.Cr.App.1973); Woolridge v. State, 514 S.W.2d 257 (Tex.Cr.App.1974).

It was established in Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975), that an order revoking probation must be supported.by a preponderance of the evidence.

“ . . .in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation . . . ” 517 S.W.2d 293 at 298.

Of course the State is still required to sustain the burden of proving by a preponderance of the evidence the allegations of the motion to revoke probation. Regardless of the burden of proof, in a case such as the one before us, the accused must be affirmatively linked to the contraband in a fashion that supports a reasonable inference that he knew he was in possession of the contraband.

It was uncontroverted that the car was not owned by either appellant or Juan Hernandez, his brother. Juan testified that he had borrowed the car from his uncle earlier in the day and had been riding around with friends during the evening; he stated that he had not seen the appellant that day prior to seeing him at the Shamrock at about 10:00 p.m. At that time he suggested they go for a ride and asked the appellant to drive.

There was no evidence that the appellant had been in the car prior to entering it outside the Shamrock. Officer Arrington was unable to identify the appellant as one of the two persons he earlier observed in the car when it left the Sea Breeze Motel.

Officer Keller stated that the street light where the car was stopped enabled him to see the marihuana in plain view on the floorboard on the passenger side. Officer Arrington stated that the appellant had access to the marihuana though it would have taken “some effort” to reach it while the car was moving. Officer Hudgens stated that there was a matchbox and an ashtray on the dashboard of the car; he said that the matchbox contained matches and roaches and that the ashtray was “quite full of ashes and also a couple of roaches in it.” On cross-examination he stated that there were no cigarettes or cigarette butts in the ashtray.

Appellant testified in his own behalf and denied having any knowledge that there was marihuana in the car or that it had been smoked while he was in the car. He stated that he had not seen his brother until they met at the Shamrock a few minutes before they left to go for a drive. Appellant’s sister testified that the appellant was with her at her home until about 9:00 p.m. and that she saw him again with other people at the Shamrock shortly before Juan entered. Though neither the appellant nor his brother made a statement at the time they were arrested, Juan admitted at the police station and so testified at the hearing that the marihuana belonged to him and that he had not told the appellant he had it in his possession. He stated that the bag of marihuana was in his pocket and that he had dropped it on the floorboard when the police approached.

It is appellant’s contention that “the greater weight of the credible evidence does not establish an affirmative link between the Appellant and the marijuana . . . ” We disagree.

The defense testimony offered by the appellant was before the court for its consideration. The court, as trier of the facts, is the sole judge of the credibility of witnesses and the weight to be given their testimony and may accept or reject all or any part of any witness’ testimony. Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1972), and the cases there cited.

Appellant points out that many of the facts and circumstances which have been held sufficient to supply the affirmative link supporting the inference that the accused had knowledge he possessed contraband were not present in the instant case. It is true that the record before us does not reflect that the appellant made false, misleading or contradictory statements to the officers concerning his own conduct or the marihuana found in the car. Appellant did not make furtive gestures, nor did he attempt to flee or throw anything from the car. There was no odor of marihuana in the car. There was no evidence that he was under the influence of marihuana or any other controlled substance at the time of his arrest. No marihuana was discovered on appellant's person and there was no evidence that he had previously sold or possessed a controlled substance. However, the absence of the above facts and circumstances is not evidence of appellant’s innocence to be weighed against evidence tending to connect appellant to the marihuana. The issue is whether there is sufficient evidence linking the appellant to the marihuana to support the reasonable inference that he was knowingly in possession of marihuana.

The evidence against appellant consists of: (1) the bag of marihuana found in plain view on the floorboard on the passenger side of the car and its proximity to the appellant; (2) the roaches found in an ashtray and a matchbox on the dashboard; (8) the marihuana was found in a car which belonged to appellant’s uncle; (4) the appellant was the driver of the automobile at the time of the arrest. While there was no showing that the light was sufficient to enable the appellant to see the marihuana at any time between when the car left the Shamrock and when it was stopped, it strains credulity to suggest that the driver of a car, even at night, is unable to see objects on the dashboard. The case is a close one, but we conclude the evidence is sufficient to support the order of revocation. This contention is overruled.

The appellant also contends the evidence is not sufficient in that it does not show a usable quantity of marihuana as that term is defined in the statute. See Controlled Substances Act, Sec. 1.02(17). The chemist, Waller, testified that the marihuana delivered to him weighed in excess of 30 grams or slightly more than one ounce.

The State’s proof, showing the amount of marihuana found in the car at the time appellant was arrested to be more than one ounce, was sufficient to support the order of revocation. See Terrill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976), where the evidence showed a matchbox containing a mere 1.48 grams of marihuana. See also Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968). This contention is overruled.

The judgment is affirmed.

ONION, P. J., and ROBERTS, J., dissent.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Nathaniel BUCKNER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52232, 52233.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Ronald A. Piperi, Killeen, for appellant.
    Joe Carroll, Dist. Atty., and Jack M. Pepper, Asst. Dist. Atty., Belton, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for delivery of heroin. The two causes were tried together before the court on August 8, 1975, upon pleas of guilty and punishment in each case was set at eight years.

Appellant contends that “The trial court erred in admonishing the appellant pursuant to Vernon’s Ann.C.C.P., Art. 26.13, because that article is unconstitutional, and appellant was denied his right to liberty without due process of law contrary to the Fifth and Fourteenth Amendments to the U.S. Constitution and Art. 1, Sec. 19 of the Texas Constitution.”

Appellant concedes that there was substantial compliance with Art. 26.13, supra, by the trial court in admonishing appellant. The appellant does not contend that he was not aware of the consequences of his plea or that he was misled or harmed by the admonishment of the court. Appellant was represented by retained counsel and it is not suggested that such counsel was ineffective. Appellant’s contention appears to be bottomed on the proposition that Art. 26.13, supra, will not meet constitutional muster in determining the voluntariness of a plea of guilty. While appellant’s attack appears to be directed to Art. 26.13, supra, rather than its application, appellant reviews the record in the instant cases in arguing that he was deprived of his constitutional rights. We, too, will review the record in an effort to determine if same presents any question of constitutional dimension.

Article 26.13, supra, as amended, Acts 1975, 64th Leg., p. 909, ch. 341, Sec. 3, effective June 19, 1975, provides:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of punishment attached to the offense; and
(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
(b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
(e) In admonishing the defendant as herein provided, substantial compli-anee by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”

In Boykin v. Alabama,, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, cited by appellant, the judge asked no questions of appellant concerning his plea. The Supreme Court noted that the waiver of federal constitutional rights is involved when a plea of guilty is entered in a state court; namely, (1) the privilege against self-incrimination; (2) the right to trial by jury; (3) the right to confront one's accusers. The Court concluded that the waiver of these rights could not be presumed from a silent record.

The record before us reflects a sharp contrast between what occurred in the trial court in the instant case to Boykin. The court inquired of appellant personally (1) relative to his waiver of trial by jury; (2) whether appellant was pleading guilty of his own free will; (3) whether appellant had been “forced or threatened — or pressured — anything” to plead guilty; (4) that the court would have to find him guilty upon his plea of guilty and advised appellant as to the range of punishment. Pursuant to the requirements of Art. 1.15, V.A.C. C.P., appellant filed written waivers bearing his signature and that of his counsel and the approval of the court, waiving his right to trial by jury, right to confrontation and cross-examination of witnesses, and right against self-incrimination.

Article 26.13, supra, requires that the plea not be accepted unless it appears that “the plea is free and voluntary.” In the instant case, the record supports the trial court’s finding that the pleas were voluntary. While no inquiry was made of appellant’s mental competency, it was not suggested at trial, nor is it now suggested, that he was not mentally competent. Appellant’s answers to the questions propounded by the court appear lucid and support the court’s finding that appellant “is sane.”

Appellant’s written judicial confessions admitting all of the elements of the offenses were admitted into evidence, counsel for appellant stating, “We have no objections. The Defendant signed the same in open court to-day.”

Appellant points to the fact that at no time during the trial did the court make inquiry, nor does Art. 26.13, supra, require that appellant be asked, “(1) whether or not he understood what his Fourth, Fifth and Sixth Amendment rights were; (2) whether or not any of these were violated by the police during his arrest (e. g. failure to give proper Miranda warnings) or prior to trial (3) whether or not he realized exactly what he was waiving by pleading guilty.” It would thus appear to be appellant’s position that Art. 26.13, supra, to be constitutional must not only require a determination by the court that the plea is freely and voluntarily made, but must go further and require an inquiry and determination by the court that none of the accused’s constitutional rights were violated at any stage of the proceeding, beginning with the defendant’s arrest. We conclude that such requirements would necessitate an unwarranted, if not unreasonable, extension of the Supreme Court’s holding in Boy-kin v. Alabama, supra. We cannot agree with appellant’s contention that Art. 26.13, supra, is violative of the Fifth and Fourteenth Amendments to the U.S. Constitution and Art. 1, sec. 19 of the Texas Constitution, nor can we conclude that appellant was deprived of any of his rights by the manner in which it was applied in the instant ease.

The judgments are affirmed.

Opinion approved by the Court.

      . Art. 1.15, V.A.C.C.P., provides:
      “No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.”

      . Cf. Henderson v. Morgan, - U.S. -, 96 S.Ct. 2253, 49 L.Ed.2d 108, 1976, 19 Cr.L. 3133.


text:
    Ex parte James Roger FARRIS.
    No. 52246.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Don L. Jarvis and Ray F. Grisham, Sherman, for appellant.
    Joe Max Shelton, County Atty., Ralph Petty, Jr., Asst. County Atty., Sherman, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

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

Petitioner’s sole contention is that he has been placed in double jeopardy by being convicted of the offense of murder with malice in Cause No. 28,774 and robbery by firearms in Cause No. 28,773, with both offenses arising out of the same transaction upon the same victim, Fred Wright.

The question of law presented in this cause is the same as was decided in the case of petitioner’s co-defendant, Michael Jewel. In Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976), this Court held that the robbery by firearms conviction must be vacated since petitioner therein had been previously convicted of the murder of Fred Wright, which occurred during the robbery, for the reason that the subsequent prosecution would have been barred by the carving doctrine as set out in Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970).

The facts in the case at bar are exactly the same, except for the trial dates; therefore the same result must occur. The relief sought is granted. Petitioner’s conviction in Cause No. 28,733, for the offense of robbery by firearms in which he received a 99 year sentence, is hereby declared void and said indictment is dismissed.

IT IS SO ORDERED.


text:
    Ex parte Jodie D. HILLIARD.
    No. 52296.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Ray J. McQuary, Rosharon, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner’s sole contention is that he was subjected to double jeopardy when he was convicted of the offense of assault with intent to murder after being previously convicted of the offense of robbery by assault, where both offenses arose out of the same transaction, were based on the same evidence, and the victim was the same.

The records reflect that petitioner entered pleas of guilty to indictments charging him with robbery and assault to murder in Causes Nos. 4769 and 4770 respectively in the District Court of Howard County on November 14, 1973. After the pleas were accepted, the trial court assessed punishment at eighteen years in each case. No appeal was perfected in either case.

The trial court entered findings of fact that “Both the robbery and assault with intent to murder were perpetrated upon the identical person in the same transaction . . . the sole victim of the robbery was shot during the course of robbery.” The trial court found in its conclusions of law that the second conviction, assault with intent to murder, would “not stand where based upon the same transaction and the same proof used to support both convictions.” The trial court concluded that “the assault with intent to murder conviction must be set aside and dismissed.”

The trial court’s findings of fact, unchallenged by the State, reflect that both convictions arose out of the same transaction and were based upon the same evidence.

In Duckett v. State, Tex.Cr.App., 454 S.W.2d 755, it was held that where the defendant was convicted of robbery by assault with a firearm and was later convicted of assault with intent to murder arising out of the same transaction and based on the same evidence, the second conviction would be violative of the double jeopardy provisions of the State and Federal Constitutions. See Ex parte Jewel, Tex.Cr.App., 535 S.W.2d 362.

The failure of petitioner to object at the assault with intent to murder trial that he was being placed in double jeopardy does not constitute a waiver of the right to raise the matter in a post-conviction habeas corpus attack. Ex parte Evans, Tex.Cr.App., 530 S.W.2d 589; Ex parte Jewel, supra. Further, the fact that petitioner pled guilty to the assault with intent to murder indictment does not preclude him from now raising the double jeopardy contention. Ex parte Seelies, Tex.Cr.App., 511 S.W.2d 300; Ex parte Jewel, supra.

The relief sought is granted. The conviction for assault with intent to murder is set aside.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    John Wayne HUGGINS, Appellant, v. The STATE of Texas, Appellee.
    No. 52303.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Stephen E. Gossett, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., John Tatum and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On July 13, 1973, appellant waived trial by jury and entered a plea of guilty before the court to the offense of attempted arson as denounced by Art. 1316, Vernon’s Ann. P.C. (1925). Punishment was assessed at three (3) years imprisonment; however, the imposition of sentence was suspended and appellant was placed on probation. One of the terms of appellant’s probation was: “(a) Commit no offense against the laws of this or any other State or the United States.” On May 12,1975, the State filed a motion to revoke appellant’s probation, alleging that he violated this condition in that: “On the 9th day of May, 1975, in Dallas County, Texas, John Wayne Huggins did then and there unlawfully exercise control over and obtain property, to-wit: drug items of the value of $2.51 from Safeway Store No. 9 without the effective consent of the manager, Don Howard.” After a hearing on July 13, 1975, the court revoked appellant’s probation.

Appellant’s counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. Our surface review of the record convinces us that the issue as to whether or not the indictment for attempted arson is fatally defective and the issue of whether there was sufficient evidence of the want of consent of the store manager to justify revocation deserve analysis. There may well be other grounds which a proper review would show must be treated before this Court could conscientiously decide that this case is wholly frivolous and without merit. Accordingly, without intimating any view on the ultimate resolution or fate of the appeal, the appeal is abated so that counsel might search the record and prepare another appellate brief in this cause.

The appeal is abated.

      . The indictment does not allege that arson was attempted “wilfully.”

      . See Sizemore v. State, 496 S.W.2d 80 (Tex.Cr.App.1973).


author: AKIN, Justice.

text:
    Sarah COBURN, Appellant, v. Alfred MOORE, Appellee.
    No. 18784.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 13, 1975.

      Michael M. Daniel, Dallas Legal Services Foundation, Inc., Dallas, for appellant.
    Alfred Moore, pro se.
   AKIN, Justice.

This is an appeal from an order of the district court denying a temporary injunction. Plaintiff-lessee sought a temporary injunction enjoining defendant-lessor from (1) refusing to allow various utility companies access to the premises; (2) evicting or attempting to evict plaintiff; and (3) filing or prosecuting a forcible detainer action. Additionally, plaintiff prayed judgment for damages for breach of the lease contract and foreclosure of a lien securing such damages pursuant to Tex.Rev.Civ.Stat.Ann. art. 5236 (Vernon 1962). By written amended brief, plaintiff-appellant has limited her appeal to the trial court’s denial of injunctive relief with respect to defendant’s attempt to evict her without judicial process.

In an application for a writ of temporary injunction, the applicant is not required to establish that he will prevail on the final trial, but he must plead a cause of action and show a probable right to the relief he seeks and probable injury in the interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968); Transport Company of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Electronic Data Systems Corp. v. Powell, 524 S.W.2d 393 (Tex.Civ.App.-Dallas 1975, writ ref’d n. r. e.). In temporary injunction cases, the question presented on appeal is whether the trial judge abused his discretion in issuing or refusing the writ. Transport Company of Texas v. Robertson Transports, supra; Electronic Data Systems Corp. v. Powell, supra. We find no abuse of discretion and, therefore, affirm.

On August 28, 1974, plaintiff moved into an apartment located at 4802 Live Oak, Dallas, Texas. On May 1, 1975, she moved into another apartment at the same address. At that time, plaintiff and defendant entered into an oral lease creating a week-to-week tenancy of a furnished apartment. Defendant was to provide utilities and plaintiff was to pay $25 per week. After plaintiff moved into this apartment, she discovered the roof leaked. Because of this, plaintiff refused to pay the rent until the roof was repaired. On July 18, 1975, after defendant assured her that the roof had been repaired, she paid him the rent until July 25. The roof continued to leak, however, and on July 25,1975, plaintiff told defendant that she would not pay rent until the roof was satisfactorily repaired. At the time of the temporary injunction hearing on August 22, plaintiff had not paid rent since July 18. Defendant testified that, because the rent had not been paid, he terminated the lease on July 25. This was confirmed by plaintiff’s testimony. At the time the district court entered its order, plaintiff still resided in defendant’s apartment; however, on this date there was pending a forcible detainer action in the justice court to evict plaintiff from the premises.

During the hearing on the temporary injunction, there was conflicting testimony whether the defendant had interfered with plaintiff’s access to the premises by removing and/or repairing certain stairways and whether the defendant wrongfully interfered with plaintiff’s utilities which apparently had been placed in her name. Presumably, the trial court resolved these conflicts against plaintiff.

Plaintiff introduced no evidence of monetary damages sustained as a result of the leaking roof or otherwise. In view of her occupancy of the premises from July 25 to the time of the hearing, without payment of rent, the trial court could properly conclude that she had no probable right to recover damages in excess of the amount of rent she owed, and, therefore, that she had no substantial claim to be secured by a lien under art. 5236. Consequently, we hold that denial of the temporary injunction was within the court’s discretion.

Affirmed.


author: PEDEN, Justice.

text:
    5629 CORPORATION, Appellant, v. IDEAL LIGHTING FIXTURES COMPANY, INC., et al., Appellees.
    No. 16676.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 15, 1976.
    Rehearing Denied May 13, 1976.
    Alfred C. Schlosser, Gerald A. Sadler, Houston, for appellant.
    Richie, Greenberg & Brackman, Roger B. Greenberg, Houston, for appellees.
   PEDEN, Justice.

Appeal from a summary judgment in favor of the plaintiffs in their declaratory judgment suit to construe two leases. The trial court determined that the plaintiffs gave the appellant timely notice of their intention to exercise their options to extend the leases and the court reformed one of the provisions in the leases.

Each lease provided on page two in Article II:

“The term of this Lease is for twenty (20) years commencing June 1, 1956 and terminating May 31, 1976, unless sooner terminated under any of the provisions contained herein.”

The provisions relating to the lessee’s option to extend the lease are found in Article III at the top of page three in each of the leases:

“Strictly conditioned upon the Lessee promptly and faithfully performing all of the terms and provisions herein contained, the Owner hereby gives Lessee an option to extend this Lease for an additional period of ten (10) years, such ten year optional period commencing June 1, 1977 and terminating July 31, 1987, provided that should Lessee desire to exercise said option, then it shall give notice to the Owner by registered mail two (2) years or more before the termination of the main twenty (20) year term of this Lease.”

Thus there was a gap from May 31, 1976 to June 1,1977 between the end of the main term and the beginning of the optional term.

Ideal Builders gave notice of its wish to exercise the option to extend the lease in a letter dated January 22, 1975, but the lease required it to give such notice by May 31, 1974, so the notice was more than seven months late.

The summary judgment evidence consisted of an affidavit by Jack Kay, president of Ideal Lighting Fixture Company, Inc., and of Ideal Builders Hardware Company, Inc., and an affidavit and deposition of Leon Deutser, president of 5629 Corporation.

When the lease contracts were executed on February 3, 1956, the lessors, Kay and Deutser, owned the building as partners and both were shareholders and officers of their corporate enterprises, Ideal Builders Hardware Company, Inc., and Ideal Lighting Fixture Company, Inc. The 5629 Corporation became successor owner and lessor of the leased premises, and the lease agreements were assigned to it in 1959. The association between Kay and Deutser was terminated; Kay became president and principal owner of the Ideal corporations, while Deutser became president and principal owner of the 5629 Corporation. After receipt of the January 22, 1975, notice of extension, 5629 Corporation replied that the notice was not timely given and this litigation followed.

Appellant’s first point of error is that the trial court erred in finding that the “Plaintiffs’ notice of intention to exercise the option ... to extend the lease are found to have been timely made” because no basis for equitable relief exists in that there was no showing of mutual mistake or of a unilateral mistake combined with inequitable conduct by the appellant as to the due date. In its second point the appellant complains that there are issues as to material facts upon which the judgment must be based and they cannot be determined in a summary judgment proceeding.

The Ideal companies, plaintiffs, contend that the lease option was timely exercised because, applying the equitable standard set out in Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265 (1939), the trial court was fully authorized to find as a matter of law that plaintiffs were not grossly negligent in exercising their lease option but rather that they were misled by the ambiguity or mistake in the leases. They further contend that under the test in Jones, once it is determined that they were thus misled, there remained only the task of determining whether the defendant had materially changed his position in reliance on plaintiffs’ delay in exercising their lease options. They also argue that any delay on their part in timely exercising their options was brought about by the defendant’s conduct.

We sustain the appellant’s first and second points of error. We cannot say that the summary judgment evidence establishes as a matter of law that there is no genuine issue as to any material fact concerning the giving of notice that the option would be exercised and that the appellees were entitled to summary judgment as a matter of law. The clause that fixed the beginning and ending dates of the optional term is the result of a mistake and is ambiguous, but we do not consider ambiguous the clause that limited the time for giving notice that the option was being exercised. Further, the appellant testified he always relied on May 31, 1976, as the end of the primary term and that notice was to be given “two years prior to the termination of the primary term” in May of 1974, while the ap-pellee contends he relied on the beginning of the option period in paragraph 3, June 1, 1977, as to when to give notice.

If there is any ambiguity in the meaning of a contract, and any dispute as to the interpretation placed on it by parties, the issue as to its true meaning is one of fact for the jury. Ellisor v. Kennedy, 128 S.W.2d 842 (Tex.Civ.App.1939, writ ref.)

Even if the notice clause be considered ambiguous, the appellees would not be entitled to summary judgment unless they established as a matter of law that they were misled by the ambiguity, that they intended to exercise the option, and that they would suffer substantial damage if the lease is terminated. Such proof is necessary if the appellees are to be relieved of a strict compliance with the notice provision in order to exercise the option. In the absence of equities an optionee is held to a strict compliance with the terms of the option agreement. Ziedman v. Davis, 161 Tex. 496, 342 S.W.2d 555 (1961).

The appellees’ summary judgment proof consisted of an affidavit by Mr. Kay. In it he stated that as president of both plaintiff corporations he “did reasonably rely on paragraph 3 of the Lease Agreements . to determine the date on which notice was required for the exercise of the option provisions in said lease contracts.” He asserted that he gave notice on behalf of both corporations on or about January 22, 1975, claiming that this was some four months before such notice was required by paragraph 3 of the leases. He also said:

“The Lease Agreements contain an ambiguity as to the dates regarding the termination of the primary term and commencement of the option term causing confusion and resulting in notice given by the Plaintiffs herein of their intention to exercise said option terms subsequent to the date on which Defendants herein felt that such notices were properly due.
“It was at all times the intention of Plaintiffs herein to exercise their option pursuant to said lease contracts and to timely notify the Lessor, Defendant herein, of their intention to so exercise said option. I filed said notice with Lessor, reasonably relying upon Paragraph 3 of said lease contract in which it is stated that the option term would commence on June 1, 1977. I was at all times unaware of any ambiguity in the contract and was not put on notice by the Lessor of any such ambiguity in dates concerning the termination of the primary term and the commencement of the option term.”

Mr. Kay made his affidavit as president and principal owner and on behalf of the plaintiff corporations, so it is the testimony of an interested party. Strickland Transportation Co. v. Navajo Freight Lines, Inc., 387 S.W.2d 720, 726 (Tex.Civ.App.1964, no writ).

“An affidavit by an interested party to a matter of which the adversaries have no knowledge or ready means of confirmation does no more than raise an issue of fact. The affidavit does not establish the facts conclusively, and it therefore will not support a summary judgment.” Lewisville State Bank v. Blanton, 525 S.W.2d 696 (Tex.1975).

The plaintiffs offered no summary judgment evidence of damage they would suffer by termination of the lease, but the defendant-appellant offered evidence that it would be damaged by a ruling that notice was timely given. The plaintiffs-appellees say that circumstantial evidence demonstrates that they would be damaged by moving from a location they had used for twenty years. However, the burden of proof was on them as movants and all doubts as to the existence of a genuine issue as to a material fact are resolved against the movants. Great American Reserve Insur. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

Looking at all the relevant summary judgment evidence on the points we note that Mr. Deutser, president of 5629 Corporation, stated at one point in a deposition that it was after May 31, 1974, that he became aware of the mistake in the dates of the option period, but later in the deposition he testified that he learned of it before that time. He did not confer with Mr. Kay about this discovery; they were not on speaking terms. When asked whether Kay would have probably exercised his option had he been able to do so pursuant to paragraph 3, Deutser replied “Apparently so.”

We hold that this evidence did not justify a holding as a matter of law that the plaintiff companies were relieved of a strict compliance with the notice provision.

The summary judgment evidence shows that the parties agreed that there was a mutual mistake in having the lease provide that the optional lease should begin one year after the end of the primary term. We affirm the trial court’s reformation of the option term to provide that it begins on June 1, 1976, and ends on May 31, 1986.

Having sustained the appellant’s first and second points of error, we do not reach his others.

The judgment of the trial court in reforming paragraph 3 of the lease contracts to provide that the ten year option periods are to begin on June 1, 1976 and end on May 31, 1986 is affirmed; the judgment is otherwise reversed and remanded.

ON MOTION FOR REHEARING

We amend our opinion in this appeal to delete these words from the fifth paragraph from the last: “but the defendant-appellant offered evidence that it would be damaged by a ruling that notice was timely given.”

Appellees’ motion for rehearing is overruled.