author: ODOM, Judge. DOUGLAS, Judge

text:
    Charles R. DOWDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 51124.
    Court of Criminal Appeals of Texas.
    April 20, 1976.
    Rehearing Denied June 9, 1976.
    Marlin Thompson, Orange, for appellant.
    Jim Sharon Bearden, Dist. Atty., and Patrick A. Clark, Asst. Dist. Atty., Orange, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for aggravated robbery. Punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.42(d), was assessed at life imprisonment.

It is only necessary to consider the ground of error in which appellant correctly contends that the trial court’s charge upon the guilt or innocence stage of the trial presents reversible error. In paragraph six of said charge, the trial court instructed the jury as follows:

“Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Charles R. Dowden, on or about the 28th day of June, 1974, in the County of Orange, State of Texas, as alleged in the indictment, did then and there and while in the course of committing theft and with the intent to obtain property of Doug Storey, to wit, United States Currency, without the effective consent of said Doug Storey, and with intent to deprive the said Doug Storey of said property, Defendant then and there by using and exhibiting a deadly weapon, to-wit, a gun, intentionally or knowingly, or recklessly, place Doug Storey in fear of imminent bodily injury or death, you will find the defendant guilty of the offense of aggravated robbery and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘Not Guilty.’ ”

In timely filed written objections to the court’s charge, appellant objected to the use of the word “recklessly” in this portion of the charge. The overruling of this objection presents reversible error in that the charge authorized the jury to find appellant guilty of aggravated robbery for conduct that does not constitute such offense under V.T.C.A. Penal Code, Secs. 29.02 and 29.03. Section 29.03 provides that a person commits aggravated robbery if he commits robbery as defined in Sec. 29.02 and uses or exhibits a deadly weapon. Sec. 29.02 provides:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”

The statutes do not authorize a conviction for robbery if the proof only shows that a person recklessly placed another in fear of imminent bodily injury or death, and yet the court’s charge here authorized a finding of guilt upon precisely that finding.

It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397); the indictment alleged such conduct (Venzor v. State, supra; 31 Tex.Jur.2d, Sec. 69 at 596); and the evidence at trial showed such conduct (Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; 5 Branch’s Ann.P.C. (2d ed.), Sec. 2603 at 32). In the instant case none of these requirements of due process of law were met because the trial court authorized the jury to find appellant guilty upon a set of circumstances that could not constitute the offense charged. Accordingly, the judgment must be reversed.

Appellant also complains that in the first two paragraphs of the charge the court quoted the entirety of V.T.C.A. Penal Code, Secs. 29.01 and 29.02, including portions thereof that were neither pled in the indictment nor supported by the proof at trial. This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction. E. g., Griffith v. State, 142 Tex.Cr.R. 559, 155 S.W.2d 612; see Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Simons v. State, Tex.Cr.App., 34 S.W. 619; cf. Mauldin v. State, Tex.Cr.App., 463 S.W.2d 10. We reiterate that admonition.

The judgment is reversed and the cause is remanded.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction because the court instructed the jury that it could find appellant guilty of robbery if it found that he used a gun and “intentionally or knowingly, or recklessly, place Doug Sto-rey in fear of imminent bodily injury or death. . . . ” The Legislature has provided that this Court should not reverse for errors in a charge to the jury unless the error was calculated to injure the appellant. See Article 36.19, V.A.C.C.P., which provides, in part, that where the requirements of Articles 36.14, 36.15 and 36.16, V.A.C. C.P., relating to court’s charge have been disregarded “. . . [t]he judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial .”, and the cases there cited.

Let us look at the evidence in the present case to see if reversible error was committed. Douglas Lee Storey, an employee of Lynn’s Sak-N-Pak Store in Orange, testified that a man came into the store after midnight and had on a mask or a stocking and stated, “Everyone this is a holdup,” and he pointed what looked to him to be a large gun and made some three people who were in the store get near Storey. The man turned and asked Storey for all the money that he had in the store and said that he knew where every bit of it was because he had been watching them some time before. He told them that he did not care what they did after the robbery after he left because he was dying of cancer but he said that he would shoot them if they followed him out of the door and that the man took over a thousand dollars in cash. While the robbery was in progress Storey pushed an alarm button and as the robber left the store one of the officers who was waiting outside said, “Freeze.” The man, later shown to be appellant, reached for his back right pocket but he was rushed, arrested and handcuffed. A loaded .38 caliber revolver was found in his right rear pocket. The stocking mask was taken off his face and the money taken from the store was found in the bag in his hand. Deborah Broussard, another employee of the store, testified that she was in the store at the time and a customer said, “You are all fixing to get robbed”; that the man came in and told them it was a robbery, it was a hold up and to give him the money; that he had a stocking cap over his head. The man said that he had been watching them for days and knew where everything was; that the man told them “to keep your hands up.”

Four officers testified about apprehending appellant who had a loaded .38 caliber special revolver with the stocking mask over his face and with the money in a brown paper bag as he came out of the store.

At the guilt stage of the trial the docket sheet shows that the jury deliberated twenty minutes before finding appellant guilty.

The evidence in this case shows that the robbery was premeditated, deliberate, intentional and with malice aforethought. The charge that the appellant could have recklessly placed Storey in fear of his life should not have been given. However, one cannot be said to recklessly place another in fear of his life when he deliberately does so. There is no way that any jury could have been misled under the facts of this case by the charge given by the trial judge. No reversible error has been shown.

The judgment should be affirmed.

      . The language in Art. 36.19, V.A.C.C.P., relied upon in the dissent was enacted in 1897 and again in 1913. The emergency clause in the 1913 Act reads:
      “The fact that there are many reversals in criminal cases caused by errors in the charge of the court due to the fact that such errors were not pointed out to the trial judge before the charge was given and the further fact that the docket of the Court of Criminal Appeals is daily becoming crowded with cases many of which contain such errors, creates an emergency and an imperative public necessity [etc.] . . .” Acts 1913, p. 278, at 279.
      Other sections of the Act provided that objections must be in writing, which had not been required before that time. This tells us that the language in Art. 36.19, upon which the dissent relies, referring to a requirement having been disregarded, refers to those cases in which the defendant disregarded the requirement of written objections. The dissent’s reliance on that article is misplaced. See, e. g., Echols v. State, 75 Tex.Cr.R. 369, 170 S.W. 786, 792 (1914).

      . In Williams v. State, Tex.Cr.App., 535 S.W.2d 352 (1976), Article 36.19, V.A.C.C.P., was given application because there was not proper objection to the charge. In the instant case there was proper objection.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    James MARLOW, Appellant, v. The STATE of Texas, Appellee.
    No. 50599.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    Roland H. Hill, Jr., Fort Worth, for appellant.

      Tim Curry, Dist. Atty., Donald S. Gandy and Joe Shannon, Jr., Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction under our former Penal Code for exhibiting obscene material. Punishment was assessed at confinement for ninety days and a fine of one thousand dollars.

First, appellant contends that portions of the court’s charge at the guilt or innocence stage of the trial constitute impermissible comments upon the weight of the evidence, Art. 38.05, V.A.C.C.P. The court charged the jury:

“NOW THEREFORE, if you find and believe from the evidence beyond a reasonable doubt that the motion picture film depicting various acts of oral sodomy and sexual intercourse between three white females and two white males, which has been introduced in evidence before you, to be obscene, as that term is herein defined, you will so state in the verdict form provided below. Unless you do so find beyond a reasonable doubt, then you will find the film depicting various acts of oral sodomy and sexual intercourse between three white females and two white males not to be obscene, and so indicate in the verdict form provided below.
u* * *
“NOW THEREFORE, if you find and believe from the evidence beyond a reasonable doubt that Charles Eugene Armstrong did on or about August 8th, 1973, knowingly exhibit to J. E. Little obscene matter, namely, one motion picture depicting various acts of oral sodomy and sexual intercourse between three white females and two white males, and you further find and believe from the evidence beyond a reasonable doubt that the defendant, JAMES MARLOW, did engage in procuring aid or means of any kind to assist the exhibition, if any, while the said Charles Eugene Armstrong was engaged in the exhibition, if he was, then, in that event, the said JAMES MARLOW would be guilty as a principal and you will so say by your verdict.”

Appellant objected to these portions of the charge in a timely manner. His complaint is that the charge assumes as true that the film depicted acts of oral sodomy and sexual intercourse and thereby invaded the province of the jury as the finder of fact.

It is undisputable that the charge assumed the matters stated and that the matters stated were adverse to appellant’s interest. The issue is whether the trial court erred in assuming such matters.

The authorities are in conflict upon this point. On the one hand, this Court has said:

“It has been quite uniformly held that it is improper for a judge, in charging the jury in a criminal case, to assume that any fact has been proved against the defendant, however strong the evidence may be.”

Kellogg v. State, 58 Tex.Cr.R. 84, 124 S.W. 958, 959 (emphasis added.) Accord, Richardson v. State, Tex.Cr.App., 390 S.W.2d 773; Supina v. State, 115 Tex.Cr.R. 56, 27 S.W.2d 198; Jones v. State, 22 Tex.App. 680, 3 S.W. 478; Jernigan v. State, 10 Tex.App. 546; Webb v. State, 8 Tex.App. 115; Baker v. State, 6 Tex.App. 344. See also Hawley v. State, 158 Tex.Cr.R. 61, 252 S.W.2d 933; Stanley v. State, 142 Tex.Cr.R. 495, 154 S.W.2d 856, 859 (on motion for rehearing); Hughes v. State, 99 Tex.Cr.R. 244, 268 S.W. 960, 961 (on motion for rehearing); Cannon v. State, 84 Tex.Cr.R. 504, 208 S.W. 339; Young v. State, 68 Tex.Cr.R. 580, 151 S.W. 1046.

Under this statement of the rule, there appear to be only two exceptions. If the fact is one that the court may judicially notice or if the accused makes a judicial admission of the fact, it is not error if the trial court assumes the fact to be true in its charge. Findley v. State, Tex.Cr.App., 378 S.W.2d 850; see also Wyatt v. State, 140 Tex.Cr.R. 578, 146 S.W.2d 187; Burk v. State, 50 Tex.Cr.R. 185, 95 S.W. 1064; Jackson v. State, 25 Tex.App. 314, 7 S.W. 872.

On the other hand, as this Court has stated:

“[I]t has been held that where the facts are admitted to be true, or are shown beyond any doubt without contest, the court in its charge may so assume without infringing the rule inhibiting a charge upon the weight of evidence and . where there is no conflict in the testimony and no room to doubt or hesitate as to a matter of fact in issue the charge ought not to assume that it is or may be doubtful. (Elizando v. State, 31 Tex.Cr.R. 237, 20 S.W. 560; Jackson v. State, 25 Tex.App. 314, 7 S.W. 872; Fahey v. State, 27 Tex.App. 146, 11 S.W. 108, 11 Am.St.Rep. 182; Nelson v. State, 35 Tex.Cr.R. 205, 32 S.W. 900; Holliday v. State, 35 Tex.Cr.R. 133, 32 S.W. 538; Pearce v. State, 35 Tex.Cr.R. 150, 32 S.W. 697; Tracy v. State, 44 Tex. 9).”

Schwartz v. State, 53 Tex.C.R. 449, 111 S.W. 399, 400 (emphasis added.)

It is apparent that the latter statement of the rule will more often authorize the trial court to assume adverse facts to be true in its charge, although it has frequently been stated, as in Schwartz v. State, supra, that “This doctrine should rarely be applied . . . .”

Reconciliation of these divergent authorities has sometimes been attempted, as in Bradshaw v. State, Tex.Cr.App., 70 S.W. 215, 216:

“While there are some cases which hold that where some fact is not controverted, but admitted, the court may in the charge assume the fact to be so, yet these are special instances, in which there was clearly no controversy as to the fact assumed; the proof being all one way on the question, or the fact distinctly admitted. Ordinarily the plea of not guilty brings in issue every inculpatory fact, and the court should be careful not to assume against appellant any fact about which there might be any possible controversy.”

Similar language and an illustrative example appear in Nelson v. State, 35 Tex.Cr.R. 205, 32 S.W. 900, 901:

“When the facts are admitted to be true, or are placed beyond any doubt without contest, we can see no reason why the court may not so assume, without infringing the rule inhibiting a charge upon the weight of the evidence. But this would not be so if there was an issue as to any such fact, and the court must then refrain from the assumption. To illustrate, on a trial for homicide, where it is proved by both sides, or it is not controverted, that deceased was killed, but the issue is as to the degree of culpability or identity of the slayer, it would not constitute a charge on the weight of the evidence for the court to assume the death of the deceased; but it would be if the court assumed the identity of the accused, or any degree of his culpability, as the issue might be, the plea on the trial being not guilty.”

The inherent danger is clear where the trial court assumes in its charge facts damaging to a defendant to be true merely because the same were not “controverted,” not “placed in issue,” or not “contested.” It is the right of all defendants to put the State to its proof. The burden of proof rests with the State and the failure of an accused to present evidence in his own behalf cannot alone authorize the trial court to charge the jury in such a manner that every fact upon which the proof was all one' way is assumed to be true. Such a result comes perilously close to authorizing a directed verdict of guilty for the State.

Therefore, we reject the State’s contention that solely because appellant in the instant case at trial did not offer evidence disputing that the film depicted oral sodomy and sexual intercourse, the trial court properly assumed those facts to be true.

We are of the opinion that only rarely should the trial court assume in its charge any fact to be true that is damaging to the defendant, but that under very limited circumstances the same is proper. We have already mentioned the well-established exceptions: where the fact is one that the trial court may judicially notice, or where the defendant judicially admits that the fact is true. Neither exception applies to the instant case.

We believe that the trial court should never assume as true a fact based wholly upon the State’s testimonial, as opposed to physical, evidence. The jury is always entitled to doubt the credibility of any witness, and there are both statutory and constitutional inhibitions against any instruction of the trial court that tends to invade that province of the jury.

This danger does not exist with respect to certain uses of physical or tangible evidence. We are referring to the use of such evidence to prove some physical characteristic of the evidence about which there is absolutely no room for doubt or hesitancy as to the validity of perception of that characteristic or as to the truth of the fact of the perceived characteristic, and regarding which perception or fact there is no contradictory evidence from any source. We therefore hold that under the conditions just stated the trial court may assume as fact a physical characteristic of tangible or physical evidence that can be sensorially perceived by the jury, the trial court, and, if necessary, this Court on appeal.

Two decisions of this Court, properly reasoned and decided, may illustrate. In Nelson v. State, 35 Tex.Cr.R. 205, 32 S.W. 900, the offense was theft over twenty dollars. The trial court failed to charge the jury upon value of the property alleged to have been stolen. The property consisted, however, of a twenty dollar gold piece, a fifty-cent piece, two ten dollar bills, and other items, all of which were admitted into evidence. It was held that the trial court did not err in assuming, in effect, that the value of these items was more than twenty dollars.

In Schwartz v. State, 53 Tex.Cr.R. 449, 111 S.W. 399, the offense was theft over fifty dollars; the property allegedly stolen was an iron safe containing forty-one dollars in money. Although there was apparently uncontroverted testimony by State’s witnesses that the safe was worth more than nine dollars, the court stated:

“Values are always largely a matter of opinion, and a statement of value is not to be received always as conclusive, or necessarily to be accepted by the jury, and this without reference to the jury’s belief in the honesty and fairness of the witness . . . [N]or do we believe that in respect to a matter of value concerning an article such as a secondhand safe, the mere expression of opinion by one or two witnesses ought to be held to so conclusively establish the fact as that a judge is authorized to assume the value so incontestably proven as to take this matter from the jury.”

Schwartz v. State, supra, 111 S.W. at 400.

In the instant case, the fact assumed to be true in the court’s charge concerned a physical characteristic of a tangible object that was introduced into evidence, to-wit: that a film depicted acts of sexual intercourse and oral sodomy between three white females and two white males.

The jury, the trial judge, and members of this Court have viewed the film. No rational person could deny that the film does in fact depict the matters stated; there is absolutely no room for doubt or hesitancy insofar as that conclusion is concerned and the record reflects no contradictory evidence at trial from any source. Therefore, the trial court did not err in overruling appellant’s objections to the charge.

Next, appellant contends the trial court erred in overruling his motion for mistrial after the prosecutor asked him upon cross-examination at the punishment stage of the trial whether he had ever had his bail forfeited. The objection to the question was sustained before appellant answered, and the jury was instructed to disregard the question; therefore, no reversible error is shown.

Finally, appellant complains of two exhibits introduced by the State during the punishment stage of trial. The exhibits were two photographs depicting the interior of appellant’s business premises, taken after his arrest but before trial. See Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946. Like the film that was the basis of the prosecution, the photographs depicted magazine covers and posters showing various acts of sexual intercourse and oral sodomy.

The record reflects, that, prior to the introduction of the photographs, appellant testified at length and in detail as to the continuing nature of his business before any objection was interposed. His verbal description of the premises and the nature of the business conducted therein were generally corroborated and made more complete by the photographs. After the former had been admitted without objection, it was within the discretion of the trial court to admit the latter. Moreover, the still photographs were certainly no more prejudicial than the film that the jury had already viewed. No abuse of discretion has been shown.

The judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Ann BATTERBEE, Appellant, v. The STATE of Texas, Appellee.
    No. 50980.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    Percy Foreman and Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough, Alvin M. Titus, and John Pizzitola, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of murder with malice after a trial before the court. Punishment was assessed at ten years, probated.

Appellant challenges the sufficiency of the evidence. The State’s case is founded primarily on the statement made by appellant after the deceased’s death and the testimony of Dr. Joseph Jachimczyk, Harris County medical examiner. The State introduced evidence that appellant wanted to divorce her husband and that she wanted him dead. Even though she might have wanted to kill him, the question is did she cause the death of Vernon Batterbee?

The indictment, omitting the formal parts, is as follows:

“Ann Batterbee on or about the 12th day of April 1973, in said County and State did with malice aforethought kill Vernon Batterbee by causing him to swallow sec-obarbital so administered did cause the death of the said Vernon Batterbee.”

On May 9, 1973, appellant made a statement. Omitting the formal parts, it is as follows:

“I would like to give Det. Oviedo the following voluntary statement:
“After reading the other statement that I gave I wish to give this statement to make some changes and tell the complete truth.
“On Thursday 4r-12-73 after Vernon and I had relations, about 20 to 30 minutes later he asked for a glass of milk. I took the glass of milk into the bedroom and Vernon had some Seconal pills in his hand. I don’t know how many but it was over two. He took the pills and drank the glass of milk and laid back in bed. After 40 minutes later I went into the bedroom and Vernon was asleep. I took 4 Seconal capsules from a Bufferin bottle that was on the dresser in the bedroom.
I got a glass of water from the bathroom in the bedroom.
“He was laying with his head up asleep and I opened his mouth and put one Seconal capsule in the back of his tongue and closed his mouth and he swollowed it. I repeated this three other times for a total of 4 Seconal capsule and then poured a little water in his mouth and he swollowed them. The Seconal capsule that I gave him came from the same bufferin bottle that I gave Dts. Oviedo and Merchant today at my house. I put the bottle of Seconal capsules in the drawer of the dresser in the bedroom after I gave him the 4 Seconal capsules, before the Doctor got there. I would like to say that I learned and have seen patients being given pills when they are asleep and is why I knew how to do it when a person is sleeping. I was working for a Doctor at the hospital and is where I saw it.
“I would also like to say that when my babies were small Vernon never did stay home on week-ends and never did help with the babies. He would always go out with his buddies on weekends. He told me when I got pregnant, ‘you had the children, you raise them.’ . . .”

Dr. J. C. Holsomback, the family doctor of the Batterbees, was summoned by the appellant to their home on two occasions during the month of April, 1973, the 8th and 12th. He testified that appellant had called him on the 8th day of April because her husband was sick. When he arrived at the Batterbee home,

“Vernon was comatose, he was also cya-notic, he had labored breathing, he was stuperous and couldn’t be aroused and was vomiting and the vomitous was bloody. He was gurgling as though he had aspirated some of this vomitous back into his trachea and bronchial tubes.”

The patient was immediately taken to the intensive care unit of Baytown Medical Care Center Hospital where his stomach was pumped out and his mouth, throat and upper trachea were suctioned out.. He testified that Vernon Batterbee was near death but no medical determination of the cause was made by way of laboratory tests, but “. . .he was in what appeared to be a real deep effective sedative drug, almost to the stage of anesthesia . . .” The doctor further testified that when he arrived at their home on April 12th he found that Vernon Batterbee had expired, “[t]here was no pupilary signs, no breathing, no heart motion, no heartbeats.” Dr. Holsomback had been treating Vernon for what he thought was narcolepsy, “a syndrome where you go to sleep more easily than usual.” On April 11, 1973, he prescribed an antidepressant drug, because “Mr. Batterbee seemed to be in a depressed, somewhat withdrawn mental state, worried about some difficulties, we didn’t know what the difficulties were”.

Dr. Jachimczyk testified that he had performed an autopsy on the body of deceased at 3:40 p. m. on April 12, 1973. Laboratory tests which were run to test for the presence of barbiturates were positive, the level in the blood was found to be 1.6 milligrams percent of secobarbital, the trade name for that is Seconal, a type of sleeping drug. Dr. Jachimezyk stated:

“There will be certain amount present if the drug is used to induce sleep. There will be another amount required for a toxic level; that is one that might cause a person to have an overdose and show symptoms thereof; and then there’s yet another amount that would be termed lethal, that would be the amount necessary to cause death.”

He testified that in most people the level of 1.0 milligrams percent or higher will cause death, depending usually on the size of the individual and whether or not the patient was a drug addict, thereby allowing him to sustain a much higher level and survive. He testified that Vernon Batter-bee died as a result of secobarbital poisoning. He related that he had rendered three opinions as to the manner of death. The pertinent part of the first autopsy report of April 12, 1973, is as follows:

“It is our opinion that the decedent, Vernon Arnold Battarbee, came to his death as a result of acute barbiturate poisoning (Secobarbital), suicide.”

Then on May 17, 1973, the autopsy report contains the following:

“Subsequent to the initial investigation concerning the circumstances of death, it has come to our attention that the decedent’s wife admitted to have purposefully fed him a lethal amount of seconal capsules; accordingly, an amended death certificate has been issued stating the manner as homicide, instead of suicide as originally indicated.”

Finally, on March 15, 1974, a second amended opinion which appears in the record reads, in part, as follows:

“Subsequent to the deposition of March 8, 1974, and check of mathematics re seco-barbital, I am unable to determine the manner of death beyond a reasonable doubt as required by law; accordingly, it is our opinion that the decedent, Vernon Arnold Battarbee came to his death as a result of secobarbital poisoning, manner undetermined.”

Dr. Jachimezyk testified that his first amended opinion was based on the police offense report, written statements of witnesses including appellant’s statement. His subsequent amended opinion was issued as a result of mathematical errors made known to him during an oral deposition he gave on March 8,1974. On direct examination he testified that ten one hundred milligram capsules would bring the blood level to 1.0, previously referred to by him as the “lethal level”. Then by simple mathematical computation, sixteen tablets would bring the level to 1.6 milligram percent. He originally felt that three to four capsules would have brought the blood level to “between .09 and 1.2 . . . ” He related that his mathematical error and recomputation caused him to change his first amended opinion as to manner of death from “homicide” to “manner undetermined.” The doctor stated that he could not render “. an opinion beyond a reasonable doubt or beyond all doubt as to the manner of death.” He examined the contents of State’s Exhibit No. 4, a bottle which contained two types of medication, a pink capsule and a white-scored tablet. The pink capsule, of which there were several, was identified as a 100 milligram Seconal capsule manufactured by Lilly. He testified that the deceased’s stomach contained one-half pint of viscid gray, mottled with tan-brown and containing pink particular matter which appeared to be the pink Seconal capsular material. The stomach did not contain tranquilizers. He had no way without a test of determining the amount of secobarbital, if any, in the stomach.

Dr. Jachimezyk further testified that he changed his original opinion from suicide to homicide, in part, because of appellant’s statement that her deceased husband had taken two pills and she had given him four and according to his first computation this would have been a lethal dose. The statement that for each of such pills taken the blood level will rise .1 milligram was based on the assumption that an individual weighed 150 pounds. Vernon Batterbee weighed 189 pounds. He testified that normally seven percent of the total weight of a person is blood, thus it would take more than one pill to raise the blood level to .1. Thus, instead of sixteen pills to get the level found in Vernon Batter bee’s body, it would take nineteen pills in terms of medical probability. He further testified that to obtain a lethal level it would take twelve pills instead of ten. In response to continued questions on cross-examination, Dr. Ja-chimczyk stated that nineteen pills had to be absorbed into the deceased’s body, that if in fact appellant had given him only four as indicated in her statement, then the deceased would have taken fifteen pills which would have been a lethal dose. Since fifteen pills would have been fatal, there was no way to tell whether or not the last four were absorbed. Dr. Jachimczyk related that once a person reaches the state of irreversible shock, death is certain and nothing can be done for the person. He stated that the deceased could have gone into irreversible shock at the 1.0 level up to the 1.6 level because, generally speaking, one could go into irreversible shock only if he received a lethal level. However, irreversible shock could have set in after eight pills or as low as the .5 level, or at any point up to the nineteen pills which had been absorbed. There was a half pint of liquid in the stomach. Under the tests made there was no way to know the total amount of pills that Vernon Batterbee took. The equivalent of four secobarbital pills, or as many as eight, could have remained in the stomach.

Don Hightower, an extramarital lover of appellant, testified that he had known her and that they had sexual intercourse frequently for some ten years up to approximately the first of April in 1973. He related that during their last meeting appellant told him she was pregnant. Medical testimony was introduced to show that she was not pregnant. There was evidence that appellant wanted a divorce from the deceased.

Joy Owens testified that appellant had told her that “. . . she prayed every night that God would take him and I wouldn’t believe the hate she had for him in her heart.” When asked about any conversations with appellant on April 8,1973, Miss Owens replied that appellant had told her at the hospital, “If I had waited five more minutes, he would have been dead . I thought he was when I called the doctor.” Further, appellant had told her on many occasions of her desire to marry Don High-tower and that during the course of a conversation with appellant on April 10, 1973, appellant had related that she had had an argument with the deceased the previous evening and that he had accused her of giving him the drugs and that she wished he had died. Miss Owens also testified that on April 27, 1973, appellant had told her that she was going to have an abortion and it would cost $150, but that the doctor had told her it would be too dangerous. In February 1973, appellant asked her how to kill someone and not get caught. She did not think appellant was serious about killing Vernon Batterbee.

Corpus delicti in a prosecution for murder consists of two elements: (1) that the body or the remains of the body of the deceased be found and identified, and (2) that the death of the deceased was caused by the criminal act of another. Proof of the corpus delicti may not be made by an extrajudicial confession alone, but proof of the corpus delicti need not be independent of an extrajudicial confession. If there is some evidence corroborating the confession, the confession may be used to and in the establishment of the corpus delicti. Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974).

The indictment alleged that the appellant caused the death of Vernon Batter-bee by causing him to swallow secobarbital. The evidence shows that he died as a result of secobarbital poisoning, and that appellant gave him secobarbital pills. Therefore, the issue remaining unresolved by the evidence is whether appellant gave to the deceased sufficient secobarbital to bring about his death or did the deceased bring about his own death. If the latter is true, then the crime of murder was not committed. According to appellant’s statement, deceased took at least two pills and she gave him four more. The evidence shows that as few as eight pills could have caused him to go into irreversible shock, a condition which the evidence shows results in certain death. The deceased was in a depressed state the last days of his life. It may be reasonably inferred from this record that he had attempted to take his own life only three days earlier. Ill feelings existed between appellant and the deceased, and appellant had been involved in an illicit love affair for ten years. And while the record reflects that the circumstances surrounding the deceased’s death are very suspicious, the evidence considered in the light most favorable to the finding of guilt by the trial court is insufficient as a matter of law.

This is not like a case where one is dying and another inflicts a fatal blow hastening death, because the proof in this case does not show that the four secobarbital pills resulted in, or contributed to, Vernon Batterbee’s death.

The judgment is reversed and the cause remanded.


author: ROBERTS, Judge.

text:
    Kenneth Earl JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51040.
    Court of Criminal Appeals of Texas.
    May 19, 1976.

      James P. Finstrom, Dallas (Court-appointed), for appellant.
    Henry Wade, Dist. Atty., and Steve Wil-ensky, Asst. Dist. Atty., Dallas, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation.

On April 26, 1974, the appellant pleaded guilty to the offense of burglary of a habitation with intent to commit theft, V.T. C.A., Penal Code, Sec. 30.02(a)(1). The court assessed punishment at five years, probated, and set as condition (a) of appellant’s probation that he commit no offense against the laws of this or any other State or the United States. On October 24, 1974, the State filed a motion to revoke appellant’s probation, alleging that he had violated condition (a) by committing the offense of burglary. Specifically, the State alleged:

“On the 9th day of October, 1974, in Dallas County, Texas, Kenneth E. Johnson did then and there without the effective consent of Jewel Walker, the owner thereof, enter a building, then and there a habitation occupied by the said Jewel Walker, not then and there open to the public, with the intent to commit theft, to wit: with intent then and there to exercise control over and obtain property unlawfully from Jewel Walker, the owner of said property, and with intent to deprive the said owner of said property . . ."

The State alleged no other violations of probation.

The appellant contends that the original indictment is fundamentally defective in two respects; he also contends that the court abused its discretion in revoking probation, since the evidence was insufficient to support the allegation. We overrule these contentions and affirm.

The complainant (in the revocation proceeding), Jewel Walker, testified that she returned to her apartment on October 9, 1974, and found that it had been broken into. She stated that she had closed and locked her apartment when she left earlier in the day, and that she had not given anyone permission to enter the apartment.

Benny Bradley, a nine-year-old boy, testified that he lived in the same apartment complex as the complainant. He stated that he saw two men coming out of the window of the complainant’s apartment during the afternoon of October 9, 1974. He denied that the appellant was one of the two men; he also denied that he had told the complainant or the security guard on the day of the offense that the appellant was one of the two men. However, he admitted that one of the two men was the appellant’s brother.

After seeing the two men, the Bradley boy began to look for the apartment security guards; he found one of them approximately five minutes after seeing the men leave Jewel Walker’s apartment.

George Clark testified that he was a security guard at the apartment complex on the date of the burglary. According to Clark, Benny Bradley beckoned to him, told him that two men had broken into an apartment and named the appellant as one of the two men. Clark approached the apartment and saw three boys standing near the front door of the complainant’s apartment. One of the three — Clark was not sure which one — was inside the apartment when Clark arrived.

When they saw Clark, the three boys ran from the complex; Clark followed them but was unable to catch any of them. He then went to the apartment manager’s office and called the Dallas police. While he was in the office, Clark saw the three boys walking nearby; he then went out, accompanied by another security guard, and apprehended them. He stated that the appellant was one of the three boys whom he saw, chased, and later apprehended.

Appellant’s first contention is that the indictment fails to allege a culpable mental state as required by V.T.C.A., Penal Code, Secs. 6.02, 6.03 and 30.02. See also Art. 21.03, Vernon’s Ann.C.C.P. Omitting the formal parts, the indictment, to which appellant pleaded guilty prior to being placed on probation, charges that appellant:

“did then and there unlawfully then and there, with intent to commit theft, enter a habitation, without the effective consent of James T. Young, the owner . ."

Such an indictment was held sufficient to allege a culpable mental state in Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1975). This contention is overruled.

Appellant’s second contention is that the indictment is fundamentally defective because it fails to allege that the habitation was “not then open to the public.” Such an allegation is neither necessary nor appropriate in an indictment charging burglary of a habitation. Garza v. State, 522 S.W.2d 693 (Tex.Cr.App.1975). Appellant’s contention is overruled.

Appellant’s final contention is that the evidence is insufficient to support the order revoking probation.

The evidence shows an unauthorized breaking, appellant’s presence in or near the burglarized premises shortly after the discovery of the breaking, and the appellant’s flight from the scene after being discovered by the security guard.

Of course, it is well settled that the mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction under the principles of V.T. C.A., Penal Code, Sec. 7.02(a)(2); however, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974), and cases there cited.

Moreover, an order revoking probation need only be supported by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975).

In Shivers v. State, 460 S.W.2d 915 (Tex.Cr.App.1970), this Court held, under very similar facts, that the evidence was sufficient, beyond a reasonable doubt, to support the defendant’s conviction for burglary under our former Code. We hold that the evidence was sufficient to support the revocation order in this ease. See also Torres v. State, 491 S.W.2d 126 (Tex.Cr.App.1973); Washington v. State, 442 S.W.2d 395 (Tex.Cr.App.1965). This contention is overruled.

The judgment is affirmed.

      . We observe that the trial judge who heard the evidence and entered the revocation order at the same time found that the evidence was sufficient to support a finding that the appellant was guilty beyond a reasonable doubt of the offense of burglary; thereafter, the court granted the appellant a new trial because the evidence was, in the court’s opinion, not sufficient beyond a reasonable doubt to sustain the conviction. The court correctly recognized that a lesser standard of proof is necessary to support a revocation order.

      . We need not decide the probative value (if any) in this revocation proceeding of Clark’s hearsay testimony that Benny Bradley had identified the appellant as one of the two men who came out of the window of the complainant’s apartment. Compare Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975), with Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975).


author: KEITH, Commissioner.

text:
    James O. COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 51412.
    Court of Criminal Appeals of Texas.
    May 19, 1976.

      Lloyd W. Westerlage, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Gary Love, Don Driscoll and Brian Blessing, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

Appellant was convicted in a bench trial of aggravated assault and his punishment fixed at confinement for a period of two years.

On June 4, 1974, the complaining witness Judy Cook reprimanded her brother-in-law, the appellant, for cursing in front of her children and firing a pistol at a neighbor who was riding by on a motorcycle. Appellant turned the pistol toward Judy, pointed the gun at her face, cocked the hammer back, and stated: “ ‘I’ll shoot you, Judy. Don’t make me shoot you. I’ll kill you for that.’ ”

On June 17, 1974, Mrs. Cook filed a complaint for a peace bond against appellant in Justice of the Peace Court, alleging the threat of June 4 set out above as well as other threats. On June 18, the justice of the peace ordered appellant to post a peace bond in the amount of $500. However, the justice of the peace cancelled the peace bond by his order dated July 16, 1974. On July 22, 1974, appellant was indicted for aggravated assault arising out of the sequence of events of June 4, 1974, set out above.

Appellant’s sole ground of error is predicated upon the proposition that the order requiring him to post the peace bond constituted former jeopardy barring prosecution under the indictment of July 22, 1974. There is no merit to the contention so advanced and we affirm the judgment for the reasons now to be stated.

We find that appellant’s sole authority, Benard v. State, 481 S.W.2d 427 (Tex.Cr.App.1972), is not even persuasive, much less controlling.

When Mrs. Cook sought relief before the justice of the peace, she invoked an ancient procedure designed to prevent the commission of an offense — not to punish for an offense already committed. See Davidow, “Texas Peace Bond,” 3 Tex.Tech L.Rev. 265 (1972); Steele, “Peace Bonds,” 36 Tex.B.J. 303 (1973). This procedure, which has been a part of our State practice since the early days of the Republic, has as its purpose “to halt such threats [to kill or commit a crime against property] prior to an effort at their execution.” Ex parte Luehrs, 152 Tex.Cr.R. 348, 214 S.W.2d 126, 127 (1948).

It has long been the law of this State that conduct does not constitute an offense unless it is defined as an offense by statute. V.T.C.A., Penal Code, Sec. 1.03(a). Appellant was not charged with the commission of an offense defined as such in the penal code when he appeared before the justice of the peace. His appearance was required under the provisions of Chapter Seven, V.A. C.P., art. 7.01 et seq. At that time he had not been charged with the commission of an offense by either indictment or information. In fact, the only charge was that he had threatened to commit an offense. No jeopardy attached upon the entry of the order requiring him to post the peace bond.

Appellant’s reliance upon Benard v. State, supra, is misplaced. In this instance, there was no prior criminal accusation to which appellant could plead so that jeopardy never attached.

Finding no error, the judgment of the trial court is affirmed.

Approved by the Court.

      . See statute quoted in 3 Tex.Tech L.Rev., supra (p. 267, fn. 5)


author: ONION, Presiding Judge.

text:
    Louise Norcross WHEAT, Appellant, v. The STATE of Texas, Appellee.
    No. 51502.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    George E. Gilkerson, Lubbock, for appellant.
    Ray D. Anderson, County Atty., Jim D. Rudd, Asst. County Atty., Brownfield, 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 a conviction in a bench trial for driving a motor vehicle on a public highway while intoxicated. The punishment was assessed at thirty (30) days in the county jail and a fine of $100.00; however, probation was granted for a period of six (6) months.

The sufficiency of the evidence is not challenged. The sole ground of error is that the affidavit or complaint upon which the information is based is fatally defective because it was not properly sworn to by the affiant as required by Article 21.22, Vernon’s Ann.C.C.P.

The complaint appears regular on its face and appears to be properly sworn to by the affiant, who was later shown to be the arresting officer. Appellant acknowledges that the complaint is regular on its face, but contends the evidence at the hearing on the motion to quash the complaint rebuts and overcomes the regularity of the complaint. He relies upon Davis v. State, 171 Tex.Cr.R. 400, 350 S.W.2d 934 (1961), and Colbert v. State, 166 Tex.Cr.R. 431, 314 S.W.2d 602 (1958).

The defendant has the burden of proof on a motion to quash an indictment or complaint. Simpson v. State, 172 Tex.Cr.R. 264, 356 S.W.2d 146 (1962); Ex parte Peoples, 489 S.W.2d 908 (Tex.Cr.App.1973); Worton v. State, 492 S.W.2d 519 (Tex.Cr.App.1973). At the hearing on the motion to quash the only witness called in support of the motion was Carolyn Hiltbrunner, secretary to the County Attorney, who also was a notary public. She testified that Warren Yeager, the arresting officer, had appeared before her and signed the complaint in question. The record then reflects:

“Q All right. Did you at any time have him acknowledge it_?
“A Yes, sir.
“Q Did you ask him whether or not he had signed it for the purposes and consideration expressed therein and in the capacity stated?
“A Yes, sir.
“Q All right. Was that the procedure you took?
“A Yes, sir.
“Q And this did occur on this occasion?
“A Yes, sir.”

The appellant called no other witnesses, even though the arresting officer was present and the State offered no evidence.

Appellant contends that the court erred in overruling the motion to quash since the evidence showed the notary public had taken an “acknowledgement” as provided in Article 6603, Vernon’s Ann.C.S., rather than the oath required on such complaint by Articles 2.04,15.05 and 21.22, Vernon’s Ann. C.C.P. In both Davis and Colbert it appeared the complaint was regular on its face, but the affiant testified that while he signed the complaint he did not swear thereto. It was held in each case that the complaint was not a valid complaint and would not support the information.

In the instant case the complaint was likewise regular on its face, but the affiant was not called as a witness as in the Davis and Colbert cases. Thus, there is no testimony from him that he did not swear thereto. The appellant relies upon the notary’s testimony in answer to his questions, obviously framed with Article 6603, Vernon’s Ann.C.S., in mind. Although she testified she took an “acknowledgement,” at no time did she testify that she did not give the oath as required by law, nor was she asked. Assuming she understood the distinction between an oath and an acknowl-edgement and understood appellant’s questions, the mere fact that she took an ac-knowledgement does not eliminate the possibility that she properly administered the oath to the affiant. We conclude the appellant did not sustain his burden of proof on his motion to quash and that the court did not err in overruling the same.

The ground of error is overruled.

The judgment is affirmed.

      . There was a second ground of error, but the same has been abandoned by both brief and in oral argument.

      . Article 6603, Vernon’s Ann.C.S., states:
      “The acknowledgement of an instrument of writing for the purpose of being recorded shall be by the grantor or person who executed the same appearing before some officer authorized to take such acknowledgement, and stating that he had executed the same for the consideration and purposes therein stated; and the officer taking such acknowl-edgement shall make a certificate thereof, sign and seal the same with his seal of office.” (Emphasis Supplied)


author: DAVIS, Commissioner.

text:
    James Lewis HART, Appellant, v. The STATE of Texas, Appellee.
    No. 51510.
    Court of Criminal Appeals of Texas.
    May 19, 1976.

      Robert G. Chappell, Abilene, 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

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery. Punishment was assessed by the jury at two years.

The indictment alleged that the offense occurred on or about February 2, 1975, and the record reflects that trial was in July, 1975.

Barbara Gibson identified appellant as the man who entered the Colonial Food Store on Grape Street in Abilene shortly before midnight on February 2, 1975, and announced, “This is sort of like a hold up.” Appellant approached Gibson’s fiance who was waiting for her to close the store and said, “You move or say a word and I will blow your head off.” Gibson did not see a gun but stated that appellant “had both hands in his pockets, and this one, you know, you could tell something was pointed out.” At appellant’s request, Gibson removed what was later determined to be “around a hundred” dollars from a cash register, placed it in a paper bag, and gave same to appellant.

Appellant in his sole ground of error contends that the court erred in refusing to grant his requested charge at the punishment stage of the trial that intoxication may be considered to mitigate punishment (appellant made a motion for probation) if, as a result of the intoxication, “the defendant either did not know his conduct was wrong, or was incapable of conforming his conduct to the requirements of the law he allegedly violated.”

Appellant urges that under the evidence he was entitled to have the jury instructed in accordance with V.T.C.A. Penal Code, Sections 8.04 and 8.01.

Section 8.04, supra, “Intoxication,” provides:

“(a) Voluntary intoxication does not constitute a defense to the commission of crime.
(b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.
(c) When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of this section.
(d) For purposes of this section ‘intoxication’ means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.”

Section 8.01, supra, “Insanity,” provides:

“(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

The testimony of Bob Borst, who had assisted appellant in moving on the day in question, was to the effect that appellant had drunk a substantial quantity of beer throughout the day and that Borst had visited a number of clubs that evening with appellant where appellant’s drinking continued. Prior to appellant carrying Borst home “after ten or ten thirty,” appellant drank a mixture of “whiskey and cokes.” About twelve o’clock the same night appellant returned to Borst’s house at which time Borst described appellant as being “pretty pickalated.”

Appellant directs our attention to the following, which occurred on cross-examination of Borst by appellant.

“Q. At this time, you said that, ‘I think that when James [appellant] gets to drinking a lot of times, he doesn’t know what he is doing.’ Would that be a fair statement of your opinion now?
“A. Yeah.”

On re-direct, Borst was asked to state what he meant when he testified that appellant didn’t know what he was doing when he was drinking. The record reflects that Borst testified that appellant would not remember what he had told him over five minutes, “he will be driving on the wrong side of the road and won’t pay no attention,” and “he is just likely to do anything.”

Appellant further directs our attention to the testimony of appellant that he remembers entering the store where the robbery occurred but that he did not recall doing the things he was accused of doing on the occasion in question.

Appellant relies on Rodriguez v. State, Tex.Cr.App., 513 S.W.2d 594, and Perez v. State, 146 Tex.Cr.R. 241, 172 S.W.2d 314. Appellant recognizes that these cases arose under the former code, Art. 36, V.A.P.C. but urges that these decisions are applicable under Section 8.04, supra.

In Rodriguez, it appeared to be undisputed that defendant was intoxicated; however, the evidence was found insufficient to warrant a charge under Art. 36, supra. In Rodriguez, this Court noted that Perez v. State, supra, accurately described the evidence necessary to warrant a charge. In Perez, the Court stated that the testimony of the defendant’s wife relative to temporary insanity “is very meager indeed, and barely, if at all, calls for an instruction thereon.” In Perez, it was undisputed that the defendant was drunk prior to the events which resulted in the ultimate conviction of defendant for aggravated assault. The defendant’s wife testified, “I think this drinking on my husband’s part has had the effect of interfering with his ability to tell right from wrong; he never gets in any trouble unless he is drinking like that. I think he is mentally affected only when he is drinking like that, he gets like that in trouble and they pick him up.”

Under the former code, a defendant must have been intoxicated to the point of losing his ability to distinguish between right and wrong in order to avail himself of the mitigation of penalty provision of Art. 36, supra. See Art. 35, V.A.P.C.; Rodriguez v. State, supra.

Reading Sections 8.04 and 8.01, supra, of the present code together, a defendant, to avail himself of the mitigation provision of Section 8.04, supra, must, as the result of intoxication, (1) “not know his conduct was wrong” or (2) “was incapable of conforming his conduct to the requirements of the law he violated.”

First it should be noted that it appears undisputed that appellant in the instant case was intoxicated as was the case in Rodriguez and Perez. Section 8.04, supra, like former code Art. 36, V.A.P.C., provides that “voluntary intoxication does not constitute a defense to the commission of crime.”

While Rodriguez and Perez are no longer controlling, we find the decisions in those cases helpful. In Perez, the Court found the testimony of the defendant’s wife that the defendant’s drinking interfered with his ability to tell right from wrong and that defendant was mentally affected when he was drinking “. . . very meager indeed, and barely, if at all, calls for an instruction thereon.” We find the testimony of Borst that in his opinion “. that when appellant gets to drinking a lot of times, he doesn’t know what he is doing” to be even more meager than the testimony of the defendant’s wife in Perez. It clearly does not raise the issue that appellant did not “know his conduct was wrong on the occasion in question” or that appellant “was incapable of conforming his conduct to the requirements of the law he violated.” Further, we do not find the testimony of appellant and Borst relative to appellant being forgetful and being unable to remember the events on the night in question to raise the issue of temporary insanity. In Guyton v. State, Tex.Cr.App., 472 S.W.2d 130, a case tried under the former code, complaint was made on appeal of the failure of the trial court to submit to the jury the issue of insanity as a defense. This Court quoted from 31 Tex.Jur.2d, Insane and Incompetent Persons, Sec. 4, p. 422, where it was stated:

“. . general unsoundness of mind or incapacity to understand a particular transaction is not established by the fact that a person may be eccentric, or forgetful, or given to delusion.”

We find the foregoing quotation to be no less applicable under the new code.

We conclude that the evidence does not raise the issue of temporary insanity caused by intoxication and reject appellant’s contention that the court erred in failing to grant his requested charge.

The judgment is affirmed.

Opinion approved by the Court.

      . Art. 36, V.A.P.C., as amended by Acts 1969, 61st Leg., p. 1656, ch. 521, Sec. 1, effective September 1, 1969, provided:
      “Neither intoxication nor temporary insanity of mind produced by the voluntary recent use of ardent spirits, intoxicating liquor, narcotics, or dangerous drugs, or a combination thereof, shall constitute any excuse for the commission of crime. Evidence of temporary insanity produced, however, by such use of ardent spirits, intoxicating liquor, narcotics, or dangerous drugs, or a combination thereof, may be introduced by the defendant in mitigation of the penalty attached to the offense for which he is being tried.
      “When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by immoderate use of intoxicating liquor, narcotics, or dangerous drugs, or by a combination thereof, the judge shall charge the jury in accordance with the provisions of this Article.”

      . For a jury charge under Section 8.04, supra, see Morrison & Blackwell, New Texas Penal Code Forms, Sec. C-804, “Intoxication.”

      . While Art. 36, V.A.P.C. spoke in terms of insanity produced by “voluntary recent use of ardent spirits, intoxicating liquor, narcotics, or dangerous drugs, or a combination thereof,” another change in the new code is the provision that intoxication can result “from the introduction of any substance into the body.”


text:
    Roy Lee MIDDLETON, Appellant, v. The STATE of Texas, Appellee.
    No. 51515.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    John Mustachio, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an attempted appeal from a conviction for attempted murder. Punishment was assessed at five (5) years.

On January 21, 1975, appellant waived trial by jury and entered a plea of guilty before the court. Because of an application for probation, a pre-sentence investigation was ordered. On March 7, 1975, the court assessed punishment and immediately imposed sentence.

In his first ground of error, appellant contends that he was deprived of his right to file a motion for new trial within ten days after punishment was assessed. We agree.

In Woods v. State, 532 S.W.2d 608, 611-612 (Tex.Cr.App.1976), we held as follows:

“We hold that the time to file a motion for new trial or motion in arrest of judgment does not begin to run so long as an application for probation is pending without determination by the trial court. Stated another way, even though a penalty has been announced, yet an application for probation is under consideration by the trial court, the time for filing a motion for new trial or motion in arrest of judgment does not begin to run until the date the court either grants or denies probation. This is so because ‘a defendant can make no intelligent decision as to whether to file a motion for new trial or motion in arrest of judgment until he knows the punishment that he faces.’ Faurie v. State, 528 S.W.2d [263,] 265 [Tex.Cr.App.1975],
“In the instant cases the appellants did not know for sure what their punishments would be (incarceration or probationary supervision) until the date their sentences were formally pronounced, and they were thus precluded from being given the opportunity to file a motion for new trial or motion in arrest of judgment within the time provided by law. Absent a waiver of such time, we conclude that the sentence in each of these cases was prematurely pronounced. We, therefore, conclude that the appeals must be dismissed.
“The only remaining question is the posture these cases must assume when they return to the trial court.
“It is an abuse of discretion for the trial judge to refuse a defendant his absolute right to file a motion for new trial or motion in arrest of judgment where the right is properly asserted. Synagogue v. State, 122 Tex.Cr.R. 472, 55 S.W.2d 1052 (1933). See Art. 40.05, Vernon’s Ann.C. C.P. It follows that it is likewise an abuse of discretion where the trial court erroneously pronounces sentence in such a manner as to cut off completely appellant’s time for filing such a motion and his ability to assert this right. Art. 40.05, supra. Moreover, it is essential that the cases be placed in the same posture they were in when the error occurred. Garcia v. State, 499 S.W.2d 126 (Tex.Cr.App.1973).
“Therefore, we conclude that upon the issuance of this Court’s mandates of dismissal, the appellants may, if they choose, file their motions for new trial or motions in arrest of judgment. The time for filing such motion shall commence with the receipt of the mandates by the clerk of the trial court. Thereafter, such amended motions as are in accord with the provision of Article 40.05 may also be filed. Then, if these motions be overruled, the sentences may be properly pronounced and entered, and the appellants may give notice of appeal, if they desire to do so. In such event, proceedings pursuant to Art. 40.09, Vernon’s Ann.C.C.P., may be had.”

In the instant case both the sentence and the docket sheet contain the notation “Ten days’ time waived,” apparently referring to the time in which to file a motion for new trial or motion in arrest of judgment. See Articles 40.05 and 41.02, Vernon’s Ann.C. C.P. However, the transcription of the court reporter’s notes does not reflect a waiver of the time in which to file such motions and there is no other instrument in the record which shows that appellant waived the time provided in Articles 40.05 and 41.02, supra.

We are unable to say that the notations concerning the waiver of “ten days” constituted a waiver of the time in which to file a motion for new trial or motion in arrest of judgment. Similar notations were found not to constitute such waiver in Faurie v. State, supra. Therefore, we have reached the conclusion that the March 7, 1975, sentence was premature. The sentence having been improperly and untimely pronounced, we are without jurisdiction to hear this appeal. Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.1969); Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.1973). Woods v. State, supra.

As in Woods, the only remaining question is the posture this case must assume when it is returned to the trial court. We hold that the procedure recommended in Wood's must be followed in this case. Upon receipt of this Court’s mandate, the appellant may, if he chooses, file his motion for new trial or in arrest of judgment; thereafter, proceedings in accord with the opinion in Woods shall be followed.

It is so ordered.

The appeal is dismissed.


text:
    Andrew McGUIRE, Appellant, v. The STATE of Texas, Appellee.
    No. 51795.
    Court of Criminal Appeals of Texas.
    May 19, 1976.

      Jerome W. Kirby, Littlefield, for appellant.
    Jim D. Vollers, State’s Atty., and David S.MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

This is an appeal from an order revoking probation. Appellant was convicted of the offense of unlawful possession of a firearm by a felon under the provisions of V.T.C.A., Penal Code, Sec. 46.05, and the court assessed his punishment at ten years probated. One of the conditions of his probation was that he “[cjommit no offense against the laws of this or any other state or the United States.” State’s counsel filed a motion to revoke the probation alleging that appellant violated the terms of the probation by driving an automobile on a public road in Cottle County, Texas, “under the influence of alcoholic beverages and while intoxicated.”

Upon the hearing on the motion to revoke probation the State offered Paducah Police Chief Robert Molette, State Highway Patrolmen Harold Price and Thomas F. Cap-man as witnesses. Each testified that he observed appellant and that he was intoxicated and under the influence of intoxicating liquor on the date in issue. Only Chief Molette testified as to the appellant’s operation of the vehicle upon the public streets of Paducah, the highway patrolmen having seen him only in the courthouse.

Appellant contends that the evidence was insufficient to show that he was intoxicated at the time and place charged in the motion to revoke. This contention is predicated upon an apparent error in Patrolman Price’s testimony concerning the result of a breathalyzer test which he took of appellant. Upon direct examination Price, after testifying that he was a qualified operator and performed all of the required steps in the test, was asked:

“Q. What was the results that the machine measured to be the blood alcohol content of Mr. McGuire’s blood?
“A. Point zero two five percent.
“Q. It is presumed that a person is intoxicated at point point one zero percent, is this correct?
“A. Yes, sir, at zero point one zero.
“Q. Is this above that figure?
“A. Yes, sir, it is.” (emphasis supplied)

It is apparent from an examination of the record that the witness erroneously stated his finding by transposing the zero and that the answer should have been “zero point two five.” But, we consider the discrepancy to be immaterial. Three experienced police officers testified unequivocally that appellant was intoxicated; and, appellant testified that he began drinking about 9:30 or 10:00 the night before and continued drinking at a party until nearly noon the next day. He then took a nap for a few hours, awakening about 3:00 or 3:30 in the afternoon. Thus, he admitted to having driven his pickup truck within four or five hours after his lengthy drinking bout.

It is now well established that in reviewing the trial court’s order revoking probation this Court is limited to the question of whether the trial court abused its discretion. See, e. g., Desormeaux v. State, 489 S.W.2d 900, 901 (Tex.Cr.App.1973); Farmer v. State, 475 S.W.2d 753, 754 (Tex.Cr.App.1972). And, as said in Farmer, supra:

“In a hearing of this type, the trial judge is the trier of the facts and as such can believe those witnesses it chooses to believe and disbelieve those witnesses it chooses not to believe just as a jury can when it is the trier of the facts.” (citations omitted)

See also, Strickland v. State, 523 S.W.2d 250, 251 (Tex.Cr.App.1975).

After consideration of the entire record, we find no abuse of discretion on the part of the trial court and find that the State established the facts authorizing the revocation of probation by more than a preponderance of the evidence. Cf. Scarmardo v. State, 517 S.W.2d 293, 298 (Tex.Cr.App.1974). Ground one is overruled.

In ground two, appellant contends that his original conviction for the unlawful possession of a firearm by a felon (in violation of V.T.C.A., Penal Code, Sec. 46.05) “should be dismissed because such crime is violative of Appellant’s State Constitutional rights to keep and bear arms and therefore is void.” We find no merit to the contention and it is overruled for the reasons now to be stated.

Appellant recognizes the general rule that his failure to appeal when he was placed upon probation amounted to a waiver of his right to review the conviction. However, citing Standley v. State, 517 S.W.2d 538, 541 (Tex.Cr.App.1975), he argues that he can attack the original conviction because the statute under which he was convicted is unconstitutional. Although there is no merit to the contention now made, in order to preclude a separate habeas corpus attack, we will meet the issue as presently presented.

Appellant contends that the present statute, Sec. 46.05, is void since it is in conflict with Article I, Section 23, Constitution of Texas guaranteeing to the citizens the right to keep and bear arms in the lawful defense of himself or the State.

The prior statute, Art. 489c, V.A.P.C., has been upheld by this Court against the identical challenge. Webb v. State, 439 S.W.2d 342 (Tex.Cr.App.1969). Appellant recognizes the holding in Webb, but argues that because the new statute has broadened the scope of the prohibition [by substituting “firearm” as presently defined in V.T.C.A., Penal Code, Sec. 46.01(3), for “pistol, revolver or any other firearm capable of being concealed upon the person”], this renders the decision in Webb inoperative. We disagree. The authorities discussed in Webb, supra, are also applicable to the new statute and we are of the opinion that Sec. 46.05 does not contravene any of the rights guaranteed by Article I, Section 23 of the Constitution of Texas. That being the only challenge to the validity of Section 46.05 presented in this appeal, our holding in this case is to be confined to the specific question herein discussed.

The judgment of the trial court is affirmed.

Approved by the Court.

      . The prior statute has been upheld as against other challenges. See, e. g., Castillo v. State, 411 S.W.2d 741, 742 (Tex.Cr.App.1967), where the nature of the attack is not stated; Salazar v. State, 423 S.W.2d 297 (Tex.Cr.App.1968), where it was held that the statute was not an ex post facto law. It was upheld against an unspecified attack in Elliott v. Beto (5th Cir.1969), 419 F.2d 128. But, cf. dissent in Long v. State, 170 Tex.Cr. 177, 339 S.W.2d 215, 219 (1960), Davidson, J.


author: ODOM, Judge. GUPTON, Judge

text:
    Diane CREEKS, Appellant, v. The STATE of Texas, Appellee.
    No. 51946.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    Melvyn Carson Bruder, Dallas, court appointed, for appellant.
    Henry Wade, Dist. Atty. and" Jerome L. Croston, Jr., Gary Noble, Mike Keasler, 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 possession of heroin following a plea of guilty. Punishment was assessed at seventeen years.

In her original brief appellant’s sole complaint was that she was not properly admonished as to the consequences of a plea of guilty as required by Art. 26.13, V.A.C. C.P.

In a supplemental brief she now concedes that proper admonishments were in fact given. She now contends, however, that the record properly before this Court does not contain those admonishments as, she contends, it must.

The record reflects that on April 17,1975, the trial court approved the record after notice of completion had been mailed to the parties and no objections to the record had been made. When appellant filed her original brief, the trial court and the State realized that the record did not contain any guilty plea admonishments.

The matter was set for a hearing on October 24,1975. At that hearing the court reporter from the original trial testified that five pages of trial transcript, now numbered pages 2B-2F, had been erroneously omitted from the prepared statement of facts. These pages included the record of appellant’s arraignment at which she was properly admonished in accordance with Art. 26.13, V.A.C.C.P., as the supplemental brief concedes. Following this hearing, a second notice of completion of the record, with pages 2B-2F included therein, was mailed to the parties and the record was again approved by the trial court.

Appellant’s contentions are that the trial court was without authority to conduct the October 24 hearing, and that the record thereof and pages 2B-2F of the statement of facts are not properly before this Court. We need not pass upon these contentions because even if appellant is correct, reversible error has not been shown.

Both the docket sheet and the judgment recite that appellant was admonished following her guilty plea. These recitations are sufficient to show compliance with Art. 26.13, supra, in the face of a silent record. Brown v. State, Tex.Cr.App., 505 S.W.2d 277; King v. State, Tex.Cr.App., 502 S.W.2d 800; see also Davis v. State, Tex.Cr.App., 507 S.W.2d 740. The presumption of regularity created by the recitals can be overcome only when the record otherwise affirmatively reflects that Art. 26.13, supra, was violated.

Art. 40.09, Sec. 1, V.A.C.C.P., provides in part:

“In all cases appealable by law to the Court of Criminal Appeals, the clerk of the court that entered the conviction sought to be appealed from shall, under his hand and seal of the court, make and prepare an appellate record comprising a true copy of the matter designated by the parties, but shall always include, whether designated or not, copies of the material pleadings, material docket entries made by the court, the charge, verdict, judgment, sentence, notice of appeal, any appeal bond, all written motions and pleas and orders of the court, and bills of exception.”

Obviously, the record of the arraignment at which guilty plea admonishments are given is not required to be included in the appellate record, although it is always preferable that such record be so included. Brown v. State, 505 S.W.2d at 278, n. 2; King v. State, 502 S.W.2d at 801, n. 2. The ground of error in the supplemental brief is overruled.

The judgment is affirmed.

GUPTON, Judge

(concurring).

I concur with the majority opinion and the results reached. Article 40.09, Sec. 7, V.A.C.C.P., is silent as to the instant situation. A majority of this Court held in Guzman v. State, 521 S.W.2d 267, 271:

“The question succinctly put is whether the State waived the right to have designated matters included in the record by failure to object within the prescribed fifteen day period after notice of completion of the record was mailed. We think not.”

Heck v. State, Tex.Cr.App., 507 S.W.2d 737, involved a situation concerning a supplemental approval of the record. The record therein was approved without a statement of facts and without objection. Six months later a statement of facts was filed and approved. This Court held:

“We find the trial court’s order of July 23, 1973, directing that the transcription of the court reporter’s notes be included in the record on appeal done long before the appellate record was transmitted to this Court constituted a supplemental approval of the record.”

Guzman, supra, further reveals that although Heck, supra, deals with a supplemental approval of the statement of facts rather than matters designated for inclusion in the record, both situations are controlled by the same rationale. I feel that the situation at bar is controlled by the same rationale.

I quote further from Guzman, supra:

“Both Article 40.09, Sec. 4 and Sec. 7, clearly indicate the legislative intent that the trial judge be afforded limited discretion in these records, so that the statement of facts and the record shall ‘speak the truth.’ ”

A period of four months lapsed from the date the trial judge held the evidentiary hearing until this appeal was filed with this Court. The trial judge had the authority to include in the appellate record the additional pages of the statement of facts.

I concur with the majority opinion.

ROBERTS, J., joins.


author: GREEN, Commissioner.

text:
    Robert CANNON, Appellant, v. The STATE of Texas, Appellee.
    No. 52025.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    James D. Durham, Jr., Amarillo, Court appointed, for appellant.
    Tom Curtis, Dist. Atty., Bruce Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from an order revoking probation.

On June 13, 1975, appellant plead guilty before the court and was convicted of burglary. Punishment was assessed at eight years, probated. Condition (a) of the probation order was that appellant commit no offense against the laws of this State or any other State or of the United States.

On July 8, 1975, the State filed a motion to revoke appellant’s probation, alleging that on July 3, 1975, within the period of probation, he committed the offense of burglary of a building owned by Gary Gwyn. At the hearing of said motion held July 21, 1975, appellant plead “guilty” to the burglary alleged, and after he was duly and fully admonished of the consequences his plea was accepted by the court.

Appellant testified at the hearing, fully admitting his guilt of the burglary alleged in the State’s motion. His purpose in testifying, as reflected in his evidence, was to convince the trial court that in revoking probation the punishment should be reduced from eight years to some lower figure. He testified that his use of heroin had been the cause of his criminal conduct, and that he had withdrawn from his addiction to narcotics while in jail, and that if his punishment was reduced it would give him a greater opportunity to rehabilitate himself. His mother and sister testified that they would be ready, willing and able to help him with his problems when he was released from custody.

Appellant’s sole ground of error is that the trial court erred in not reducing the original punishment.

Article 42.12, Section 8(a), V.A.C.C.P., as amended in 1973 reads in part:

“. . . If probation is revoked, the court may proceed to dispose of the case as if there had been no probation, or if it determines that the best interests of society and the probationer would be served by a shorter term of imprisonment, reduce the term of imprisonment originally assessed to any term of imprisonment not less than the minimum prescribed for the offense of which the probationer was convicted.” (Emphasis added)

With reference to the above amendment to Section 8(a), supra, this Court in footnote 1 in Burson v. State, 511 S.W.2d 948, said:

“Prior to this amendment to said Section 8(a) (Acts 1973, 63rd Leg., Ch. 464, p. 1269, effective June 14, 1973) the reduction of punishment, if any, was governed by the provisions of Section 7 of Article 42.12, supra, and decisions of this court interpreting the same. It was held under these decisions that if the probationer had served two years or one-third of his probationary period at the time of revocation the court could reduce the punishment imposed. See Smith v. State, 399 S.W.2d 557 (Tex.Cr.App.1966); Avalos v. State, 480 S.W.2d 382 (Tex.Cr.App.1972) (footnote # 3). On the other hand, if the probationer had not served two years nor one-third of his probationary term at the time of revocation, reduction of punishment was improper. Smith v. State, supra; De Leon v. State, 466 S.W.2d 573 (Tex.Cr.App.1971), and cases there cited; Maddox v. State, 466 S.W.2d 755 (Tex.Cr.App.1971); Melvin v. State, 471 S.W.2d 853 (Tex.Cr.App.1971).”

See also Beshear v. State, 169 Tex.Cr.R. 131, 332 S.W.2d 724.

The amendment of 1973, supra, gave the trial court authority, on revocation of probation, to reduce the original punishment to a term not less than the minimum prescribed for the offense of which the probationer was convicted without any limitation of the probationary period he had served. See Batiste v. State, Tex.Cr.App., 530 S.W.2d 588. However, it is clear from the portion of the amendment emphasized above that such reduction was left to the sound discretion of the trial court.

The evidence establishes that within less than a month after appellant was placed on probation following his conviction of burglary he admittedly burglarized another building. The record reflects no abuse of discretion in the failure of the trial court to reduce the term of punishment originally assessed.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Patrick James HERRIN. Ex parte Michael Wilson HERRIN.
    No. 52052.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    Gene A. Garcia, Rock Port, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

This is an original application for writ of habeas corpus filed in this Court by the petitioners seeking to invalidate their misdemeanor convictions. See Articles 11.05 and 11.09, V.A.C.C.P.

The petitioners were jointly indicted by the Live Oak County Grand Jury for the offense of aggravated assault, and the district court transferred the indictment to the county court for trial. On September 17, 1975, both petitioners were convicted, on their pleas of not guilty to the jury in Cause No. 4939, of the offense of aggravated assault and each was assessed punishment of 90 days imprisonment and a $500.00 fine. The time for filing a motion for new trial was waived, and both petitioners were immediately sentenced. No appeal was taken of either of these convictions.

On February 5, 1976, the petitioners filed a joint application for writ of habeas corpus with the trial court alleging that they were denied their right to counsel during their trial in violation of the protections guaranteed by the Sixth Amendment to the United States Constitution. The trial court conducted a hearing on this application and subsequently denied the writ without findings of fact and conclusions of law. No notice of appeal was taken in a timely fashion, but petitioners have presented their case as an original application for writ of habeas corpus.

Initially, it should be noted that “[t]he original jurisdiction of this Court to issue writs of habeas corpus is unlimited.” State v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892, 894 (1961). See also, Article 11.05, V.A.C.C.P. However, this Court has consistently held that the invocation of its original habeas corpus jurisdiction should be used only in extraordinary cases since the petitioner has the alternate remedy of applying for habeas corpus relief to the county or district court in the county of his jurisdiction. See Ex Parte Rodriguez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (1960); Ex Parte Phelper, 433 S.W.2d 897 (Tex.Cr.App.1968); Ex Parte Fitzpatrick, 167 Tex.Cr.R. 376, 320 S.W.2d 683 (1959). In the case at bar, the petitioners have applied to the trial court for relief and have been denied. Even though no appeal was taken of that decision, we are of the opinion that original jurisdiction should be taken in this case since the petitioners have alleged substantial violations of their fundamental constitutional rights.

A reading of the testimony presented at the writ hearing, as well as the records on file in this case, permit us to summarize the sequence of events in this case. On or about October 18, 1974, the petitioners allegedly committed a joint assault on two persons. They were arrested on these charges and released on bond provided by their retained counsel, one of the members of the Texas Legislature. The records reflect that counsel sought and procured legislative continuances in the case as provided by law. See Article 2168a, V.A.C.S., as amended in 1973. At the conclusion of the legislative term, the trial court ordered the case to be set for trial on September 17, 1975, and all parties were notified of this setting.

On the date of trial, the petitioners both appeared in the county court of Live Oak County to attend their trial. However, their attorney did not appear. According to the testimony of the petitioners, which was unrebutted in this record, petitioners attempted to call their attorney by telephone, but he could not be located, at which time the petitioners asked for “a couple of days” to get another lawyer. This request-for a continuance was denied, apparently because the trial court was of the opinion that the case had been too long delayed.

Thereafter, the trial court offered to appoint counsel for the petitioners in order that the trial begin immediately. The petitioners apparently refused the appointment of counsel, stating that they wanted their own retained counsel of choice to be present. Since that attorney had failed to appear, without any fault on the part of the petitioners, the petitioners apparently decided to act as their own counsel pro se as their request for postponement had been denied.

The records reflect that the petitioners, both young and unlearned in the law, did not participate in the jury voir dire. An application for probation was filed by the petitioners, after they were informed by the county attorney that probation was possible. The State presented its witnesses, with the petitioners conducting minimal, if any, cross-examination. Apparently, the petitioners’ father assisted them in asking some of the questions. After the State had rested, the petitioners did not present any testimony, and there is no showing whether or not any jury argument was made, since there was no court reporter present at the trial of this cause. After the petitioners were convicted, the formal sentence was pronounced, reflecting that the petitioners “waived” their time for filing a motion for new trial. Compare Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975) at Footnote No. 1. Apparently, the petitioners then entered their plea of guilty to the second charge and were once again convicted and sentenced without being represented by counsel.

On September 22, 1975, petitioners’ retained counsel made his belated appearance in court, filing a motion for new trial and obtaining the petitioners’ release on bond. An amended motion for new trial was filed on October 16, 1975, but there is no showing that a hearing was ever held on these motions. No timely notice of appeal was given in the case. See Article 44.08, V.A.C.C.P.

The question presented in this case is whether the petitioners voluntarily and knowingly made a waiver of their right to counsel during these trials. It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972). However, a criminal defendant may waive his right to counsel if such waiver is made voluntarily and knowingly of the consequences thereof. See Ex Parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975); Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973); Smith v. State, 513 5.W.2d 586 (Tex.Cr.App.1974); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976).

In the case at bar, we cannot conclude from the record before us that the petitioners made a knowing, intelligent, and voluntary waiver of their right to counsel merely because their trial counsel failed to appear on the date of the trial without fault of the petitioners. Recently, in the case of Baker v. State, 519 S.W.2d 648 (Tex.Crim.App.1975), we reversed a conviction on almost identical facts as those presented in the case at bar. We hold that under the facts of this case, even though no claim of indi-gency was made at the time of the trial, petitioners have been denied the fundamental right to counsel in that they were effectively forced into representing themselves, pro se, in a jury trial, without a knowledgeable and intelligent waiver of the right to counsel. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Ex Parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Baker v. State, supra.

For the reasons stated above, the writ of habeas corpus is granted, these convictions are declared void, and the petitioners are ordered released to the Sheriff of Live Oak County to answer the charges pending in Causes Nos. 4939 and 4940.

It is so ordered.

Approved by the Court.

      . Petitioners have also raised in this application for writ of habeas corpus the contention that they were not tried upon an information which was filed in the county court. The filing of an information in this case was immaterial, since both cases were tried upon valid indictments issued by the Live Oak County Grand Jury. No information was required. See Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976).

      . Our record shows that petitioner Patrick James Herrin was confined in the Live Oak County Jail under this sentence on January 2, 1976, and that petitioner Michael Wilson Her-rin was so confined on January 9, 1976. When our jurisdiction was invoked, we admitted both to bail by an order dated March 16, 1976, so that petitioners would not have served out their sentences before we completed our review of their applications before this Court.

      .The record does not reflect that any other licensed attorney was in the courtroom at the time of the petitioners’ trial, except for the county attorney, the Honorable William L. Hardwick. There is no suggestion as to whom the court would have appointed at the last minute to represent these petitioners since the 1975 Texas Legal Directory reflects that there are only three other attorneys in the city of George West, Texas, the county seat of Live Oak County.
      Furthermore, even if the court would have appointed counsel, petitioners and the attorney would have been entitled to ten days’ preparation time. See Article 26.04, V.A.C.C.P.; Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972); Ex Parte Cavett, 521 S.W.2d 619 (Tex.Cr.App.1975).

      . The record shows that Patrick Herrin was 18 years of age at the time of this trial, with brother Michael being 21 years of age, but without a high school education.

      . In our recent opinion of Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.1975), we held that upon request county courts must provide court reporters for criminal trials. In the case at bar, there is no showing that the petitioners were advised of their right to have a court reporter.

      . Of course, motions for new trial filed after the date of formal sentencing need not be considered by the trial court. See Roberts v. State, 493 S.W.2d 849 (Tex.Cr.App.1973); Hines v. State, 495 S.W.2d 252 (Tex.Cr.App.1973).