author: ROBERTS, Judge. DOUGLAS, Judge, PHILLIPS, Judge,

text:
    Ex parte Alfredo A. GARCIA, Jr.
    No. 55329.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 18, 1978.

      Selden N. Snedeker, Dist. Atty., Joe K. Hendley, Asst. Dist. Atty., Brownsville, for the State.
   OPINION

ROBERTS, Judge.

This a post conviction application for a writ of habeas corpus under Article 11.07, Vernon’s Ann.C.C.P. The petitioner was convicted of possession of firearms by a felon, enhanced by two prior felony convictions, and the trial judge assessed punishment at life. Upon appeal, this Court affirmed the judgment by per curiam opinion delivered June 4, 1975.

The petitioner’s sole contention is that a prior federal conviction, one of the two prior convictions alleged for enhancement purposes, is void and the life sentence is therefore invalid.

On June 11, 1970, the appellant pleaded guilty to the second count of a two-count federal indictment. Count two, which alleged a violation of 18 U.S.C., App. Section 1202(a), is as follows:

“COUNT II”
“Title 18, United States Code, Appendix Section 1202(a).
“That on or about February 7, 1970, in Brownsville, Cameron County, Texas, and in the Southern District of Texas, ALFREDO AGUILAR GARCIA, JR., defendant herein, being a person who had been convicted by a court of the State of Texas of a felony, did knowingly and unlawfully possess a firearm to wit, a .32 caliber Harrington and Richardson revolver, model 732, serial number AF 16076, in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, Public Law 90-351, as amended.”

The petitioner, relying on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), contends that the allegation of 18 U.S.C., App. Section 1202(a) to which he pleaded guilty was fundamentally defective because it failed to allege that he possessed a firearm “in commerce or affecting commerce.”

In United States v. Bass, supra, the Supreme Court was confronted with the proper interpretation of 18 U.S.C., App. Section 1202(a). The issue presented in Bass was whether a prosecution under 18 U.S.C., App. Section 1202(a)(1) could stand where “[t]here was no allegation in the indictment and no attempt by the prosecution to show that either firearm had been possessed ‘in commerce or affecting commerce.’ ” United States v. Bass, supra at 338, 92 S.Ct. at 517. The Court concluded that “. ‘in commerce or affecting commerce’ is part of the offense of possessing or receiving a firearm.” United States v. Bass, supra at 351, 92 S.Ct. at 524.

The threshold question, not unequivocally addressed in Bass, must necessarily be whether the phrase “in commerce or affecting commerce” constitutes an essential element of the offense of receiving or possessing a firearm. Of course, the Bass Court did conclude that this phrase was “. . . part of the offense of possessing a firearm.” United States v. Bass, supra at 351, 92 S.Ct. at 524. Also, two of the Circuit Courts of Appeals have directly held that the phrase “in commerce or affecting commerce” is an element of the offense of possession by a felon that must be alleged as well as proven. See Bryant v. United States, 462 F.2d 433 (8th Cir. 1972); United States v. Fiorito, 465 F.2d 431 (7th Cir. 1972). We are convinced by the foregoing authorities that the phrase “in commerce or affecting commerce” is an essential element of 18 U.S.C., App. Section 1202(a) that must be alleged (as well as proven), and that the appellant’s claim is therefore facially meritorious.

However, we must also ascertain whether the federal courts would grant relief pursuant to 28 U.S.C., Sec. 2254. The petitioner pleaded guilty to the offense of possessing a firearm. See Rule 11, Federal Rules of Criminal Procedure, 18 U.S.C., Rule 11. Federal decisions uniformly hold that a guilty plea waives, all non jurisdictional defects. Broxson v. Wainwright, 477 F.2d 397 (5th Cir. 1973); Boyd v. Smith, 435 F.2d 153 (5th Cir. 1970); Farmer v. Beto, 421 F.2d 184 (5th Cir. 1969); Rice v. United States, 420 F.2d 863 (5th Cir. 1969). Cf. Menna v. New York, 423 U.S. 61, 62, n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Ex Parte Taylor, 484 S.W.2d 748, 752 (Tex.Cr.App.1972). Where an offense is not alleged in an indictment, the indictment may be challenged at any time. United States v. Trevino, 491 F.2d 74 (5th Cir. 1974). An indictment that fails to allege each material element of an offense fails to allege that offense. United States v. London, 550 F.2d 206 (5th Cir. 1977). Thus, the omission of a material element of an offense is a jurisdictional defect susceptible to federal habeas corpus attack even though a plea of guilty was entered and no direct appeal was taken from the guilty plea. United States v. London, supra; Hayes v. United States, supra; Bankston v. United States, supra. We therefore conclude that the federal courts would probably grant relief to the petitioner.

However, even though the petitioner’s claim is facially meritorious and apparently he would be entitled to relief in the federal courts, we must still ascertain whether we should grant the requested relief. Two important considerations affect our decision that the petitioner’s relief should be denied.

First, the indictment alleging a violation of 18 U.S.C., App. Section 1202(a) was filed on April 2, 1970. On June 11, 1970, the petitioner entered his plea of guilty. United States v. Bass was not decided until December 1971. Thus, we must ascertain whether the Supreme Court’s opinion in Bass is to be applied retroactively to cases arising under 28 U.S.C., Section 2254, where the indictment and trial were prior to Bass, but the appeal, if any, may have been before or after Bass.

In this connection, our research has revealed no cases involving a retroactive application to such a fact situation. In both United States v. Harris, 456 F.2d 62 (8th Cir. 1972), and Bryant v. United States, 462 F.2d 433 (8th Cir. 1972), the Eighth Circuit reversed, on direct appeal, prosecutions under 18 U.S.C., App. Section 1202(a)(1), where the indictment omitted the phrase “in commerce or affecting commerce,” and where the indictment and trial were held prior to Bass. However, these cases fail to answer the retroactivity question given the present uncertain factual setting.

In Ex Parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.1972), this Court dealt with the Supreme Court’s decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Leary held that the Fifth Amendment was a complete defense to a prosecution under 26 U.S.C., Section 4744(a), and that a federal statutory presumption of knowledge of illegal importation of marihuana from possession violated due process. In Taylor, the defendant, by writ of habeas corpus, attacked a federal conviction which had been used for enhancement purposes in a state proceeding, and alleged that Leary invalidated the federal conviction. This Court held that the first portion of Leary — that the Fifth Amendment was a complete defense to a prosecution under 26 U.S.C., Section 4744(a) —was retroactive, and that the federal conviction used for enhancement was therefore void.

However, our decision in Taylor was based on the fact that numerous courts had considered whether Leary was retroactive, and that the majority of the courts which had considered the question had held Leary retroactive. Moreover, Leary involved a question of constitutional law, not federal law.

Thus, although “[sjtate courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law,” Stone v. Powell, 428 U.S. 465, 493, n. 35, 96 S.Ct. 3037, 3051, 49 L.Ed.2d 1067 (1976), principles of comity persuade us that it would be inappropriate to speculate whether the federal courts would apply Bass retroactively to a case where the indictment and plea of guilty were prior to Bass, but the appeal, if any, may have been before or after Bass.

Second, we are convinced that principles of comity should dissuade us from permitting collateral attack of federal indictments used for enhancement purposes in a state proceeding, particularly when the collateral attack involves matters of federal law rather than constitutional law. Indeed, we have been unable to locate even one case where a state court, either on direct appeal or in a habeas corpus proceeding, has permitted collateral attack of a federal indictment, used for enhancement purposes, on the basis that the federal indictment failed to state an offense. While this may be understandable in light of the availability of federal relief pursuant to 28 U.S.C., Section 1651 or 2254, we believe that the federal courts will have the facts necessary to answer all the questions of federal law necessary to an accurate determination of this matter.

Petitioner’s requested relief is denied.

DAVIS, J., concurs in the results.

VOLLERS, J., not participating.

DOUGLAS, Judge,

concurring.

I concur in the result reached in denying relief but for different reasons.

The State relied upon a conviction obtained under 18 U.S.C.A.App. Section 1202(a) to enhance petitioner’s punishment to life. The dissent would grant petitioner relief on the basis that the indictment in that cause was fundamentally defective and that, as a result, the State failed to prove the prior federal conviction was valid.

It is not within the province of this Court to pass upon the validity of federal indictments. In essence, petitioner is collaterally attacking the validity of the federal conviction in the wrong forum. Since that conviction is final, and since neither the United States Fifth Circuit Court of Appeals nor any other federal court has declared the conviction invalid, we should give full faith and credit to the judgment of the federal district court and deny the relief sought.

Further, for reasons which follow, habeas corpus would be unavailable even in the federal courts to challenge the sufficiency of the indictment in question. That we have no authority to sanction this collateral attack upon the federal indictment in state court should be beyond dispute.

Section 1202(a) provides, in part:

“Any person who—
“(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting commerce any firearm . . shall be punished as prescribed therein.

The indictment in Cause No. 70-B-122 states, in substance:

“Title 18, United States Code, Appendix Section 1202(a).
“That on or about February 7, 1970, in Brownsville, Cameron County, Texas, and in the Southern District of Texas, Alfredo Aguilar Garcia, Jr., defendant herein, being a person who had been convicted by a court of the State of Texas of a felony, .did knowingly and unlawfully possess a firearm, to wit, a .32 caliber Harrington and Richardson revolver, model 732, serial number AF 16076, in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 Public Law 90-351, as amended.”

The authors of the plurality and dissenting opinions declare that the federal courts would probably grant petitioner relief under the authority of United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In that case, defendant was convicted of possessing firearms in violation of Section 1202(a)(1). The indictment did not allege and the government did not show that the firearms involved had been possessed “in commerce or affecting commerce.”

On appeal, the government contended that Section 1202(a)(1) banned all possessions and receipts of firearms by convicted felons, and that no connection with interstate commerce had to be demonstrated in individual cases. The Court of Appeals rejected that contention and reversed.

The Supreme Court of the United States then construed the statute and determined that it was not clear from the language and legislative history of Section 1202(a)(1) whether or not receipt or possession of a firearm by a convicted felon has to be shown in an individual prosecution to have been connected with interstate commerce. Affirming the decision of the Court of Appeals, the Supreme Court reasoned that the ambiguity of the provision must be resolved in favor of the narrower reading that a nexus with interstate commerce must be shown with respect to all three offenses embraced by the provision. Otherwise, “. . . Sec. 1202(a) dramatically intrudes upon traditional state criminal jurisdiction.” 404 U.S., at 350, 92 S.Ct., at 524, 30 L.Ed.2d, at 498. The Court, therefore, held that the government must prove a nexus with interstate commerce in each case prosecuted under Section 1202(a) but did not hold that an indictment which fails to allege that element was fatally defective.

Furthermore, in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the Supreme Court retreated from its decision in Bass as far as it possibly could without expressly overruling that decision. The Court in Scarborough held that proof that a firearm possessed by an accused traveled at some time in interstate commerce, even before the accused became a convicted felon, was sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.

Justice Marshall, who wrote the opinion in Bass, also wrote for the majority in Scarborough as follows:

“. . . Indeed, it was a close question in Bass whether § 1202(a) even required proof of any nexus at all in individual cases. The only reason we concluded it did was because it was not ‘plainly and unmistakably’ clear that it did not. 404 U.S., at 348, 92 S.Ct. 515, 30 L.Ed.2d 488. But there is no question that Congress intended no more than a minimal nexus requirement.” 431 U.S., at 577, 97 S.Ct., at 1970-71, 52 L.Ed.2d, at 593.

United States v. Fiorito, 465 F.2d 431 (7th Cir. 1972), and Bryant v. United States, 462 F.2d 433 (8th Cir. 1972), were both decided prior to Scarborough. In this light, neither case is persuasive authority for the proposition that “in commerce or affecting commerce” is an essential element of Section 1202(a) that must be alleged as well as proven. Moreover, those eases are not on point because in each the sufficiency of the indictment was challenged on direct appeal and not by collateral attack.

In the federal courts, habeas corpus is available to challenge the validity or sufficiency of an indictment only in rare cases. Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036 (1925); Roth v. United States, 295 F.2d 364 (8th Cir. 1961), cert. denied 368 U.S. 1004, 82 S.Ct. 639, 7 L.Ed.2d 543; Via v. Perini, 415 F.2d 1052 (6th Cir. 1969). The judgment must withstand a collateral attack if the indictment is sufficient to meet constitutional requirements. Chavez v. Baker, 399 F.2d 943 (10th Cir. 1968), cert. denied 394 U.S. 950, 89 S.Ct. 1289, 22 L.Ed.2d 485; Scalf v. Bennett, 408 F.2d 325 (8th Cir. 1969), cert. denied 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161. Such requirements are met unless under no circumstances could a valid conviction result from facts provable under the indictment. Johnson v. Beto, 383 F.2d 197 (5th Cir. 1967), cert. denied 393 U.S. 868, 89 S.Ct. 153, 21 L.Ed.2d 136; Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969).

Some courts have even held that the sufficiency of an indictment is not subject to collateral attack if it apparently attempts to state a federal crime. Bush v. United States, 347 F.2d 231 (6th Cir. 1965), cert. denied 382 U.S. 995, 86 S.Ct. 579, 15 L.Ed.2d 482; Kreuter v. United States, 201 F.2d 33 (10th Cir. 1952). It is beyond dispute that the indictment in the present case meets this test.

Furthermore, this indictment made reference to the official citation of the statute. Such citation provided a means by which petitioner could inform himself of the elements of the offense and hence the indictment is not constitutionally defective under any test. United States v. Roberts, 296 F.2d 198 (4th Cir. 1961); Downing v. United States, 348 F.2d 594 (5th Cir. 1965); Gearing v. United States, 432 F.2d 1038 (5th Cir. 1970).

Whether or not the indictment could have been successfully challenged on direct appeal from the federal conviction, it would not be subject to collateral attack in the federal courts. That the writ of habeas corpus cannot properly be invoked in state court to test the sufficiency of the federal indictment should require no discussion.

Petitioner was convicted of an offense defined by a federal statute of which the United States District Court for the Southern District of Texas had jurisdiction. The indictment charged an offense under such statute and the district court acquired jurisdiction over petitioner’s person. The conviction is presumptively valid unless and until a federal court declares it invalid. This Court has no authority to pass upon the sufficiency of the federal indictment. We should leave federal litigation to the federal courts.

DALLY, J., joins in this concurrence.

PHILLIPS, Judge,

dissenting.

The majority recognizes that under federal law “in commerce or affecting commerce” is an essential element to an offense under 18 U.S.C.A.App., Sec. 1202(a). Federal indictments which fail to allege this element are fundamentally defective. As stated in U. S. v. Fiorito, 465 F.2d 431, 432 (7th Cir. 1972):

“. . The United States Supreme Court construed this statute and in United States v. Bass, 1971, 404 U.S. 336, 350, 92 S.Ct. 515, 30 L.Ed.2d 488, held . . that possession of a firearm ‘in commerce or affecting commerce’ is an element of the offense of possession by a felon, as well as of the offense of transport by a felon.
As the indictment fails to state an offense, it must be dismissed.”

The indictment in the instant case failed to allege possession of a firearm “in commerce or affecting commerce”. Having failed to allege an essential element of the offense, the indictment is fundamentally defective. Bass v. U. S., supra; Bryant v. U. S., 462 F.2d 433 (8th Cir. 1972).

As recognized by the majority, void indictments similar to the one in this case are jurisdictional and susceptible to federal ha-beas corpus attack. U. S. v. London, 550 F.2d 206 (5th Cir. 1977); Hayes v. U. S., 464 F.2d 1252 (5th Cir. 1972). As far as the retroactive application of the Bass decision, the majority recognizes that Bass has been applied retroactively on direct appeal. U. S. v. Harris, 456 F.2d 62 (8th Cir. 1972); Bryant v. U. S., supra. It seems axiomatic that, having applied Bass retroactively and having held such jurisdictional problems subject to federal habeas corpus attack, the federal courts would grant relief. U. S. v. London, supra; U. S. v. Harris, supra. The only consideration remaining for this Court is the application of our enhancement statute to the facts of this case.

In recidivist cases, the prosecution must prove valid prior convictions in order to bring the case within our enhancement statute. V.T.C.A., Penal Code, Sec. 12.-42(d). The right of the State to convict an accused under our statute and impose sentence thereunder is dependent upon the ability to prove that there were constitutionally valid prior convictions. An indictment is admissible into evidence as part of the proof to show that the court which rendered the judgment of prior conviction had jurisdiction. In the instant case the prosecution failed to meet this burden of proof. The federal indictment is void on its face.

It is well settled that enhancement statutes must be strictly construed. Tyra v. State, Tex.Cr.App., 534 S.W.2d 695; Juarez v. State, Tex.Cr.App., 496 S.W.2d 638; Alvarez v. State, Tex.Cr.App., 472 S.W.2d 762. This Court has consistently held that a void prior conviction is subject to collateral attack and unavailable for enhancement purposes. Ex parte Rogers, Tex.Cr.App., 519 S.W.2d 861; Ex parte Lopez, Tex.Cr.App., 491 S.W.2d 420; Ex parte Roberts, Tex.Cr.App., 522 S.W.2d 461; Ex parte Banks, Tex.Cr.App., 542 S.W.2d 183. Therefore, although federal decisions as to the substantive question of what are the essential elements of a given offense are decisive as to whether a federal indictment alleges the elements of a federal offense, a further examination of federal law is unnecessary in order for this Court to apply the law of this State. Under Sec. 12.42(d), a prior conviction which fails to allege the essential elements of an offense is void and cannot be used for enhancement purposes in Texas. The prior federal conviction is void and should not have been used for enhancement purposes in the instant case.

For the reasons stated, relief should be granted, and I respectfully dissent.

ONION, P. J., joins.

      . See V.T.C.A., Penal Code, Section 46.05. The petitioner’s conviction was in Cause No. 74-CR-149-C in the 197th District Court of Cameron County.

      . V.T.C.A., Penal Code, Section 12.42(d).

      . Cause No. 50,243.

      . Criminal No. 70-B-122, United States District Court for the Southern District of Texas, Brownsville Division.

      . 18 U.S.C., App. Section 1202(a) states:
      “Any person who—
      “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
      “(2) has been discharged from the Armed Forces under dishonorable conditions, or
      “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
      “(4) having been a citizen of the United States has renounced his citizenship, or
      “(5) being an alien is illegally or unlawfully in the United States.
      “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”
      Prior to Bass, the Circuit Courts of Appeals had uniformly held that the phrase “in commerce or affecting commerce” modified “transports.” However, the Circuit Courts of Appeals were split over whether the phrase also modified “receives” and “possesses.” See United States v. Bass, supra at 338, n. 3, 92 S.Ct. 515.

      . See also United States v. Bowdach, 454 F.2d 728 (5th Cir. 1972); United States v. Brock, 454 F.2d 735 (5th Cir. 1972); and United States v. Harp, 454 F.2d 1161 (5th Cir. 1972). In each of these three cases, the Fifth Circuit reversed convictions because of the government’s failure to allege and prove that the receipt or possession was “in commerce or affecting commerce.”

      . We initially note that the petitioner raised his claim for relief via writ of habeas corpus in federal court, Cause No. C.A.B-77-18. On April 18, 1977, a United States District Judge dismissed the petitioner’s claim, without prejudice, for failure to exhaust state remedies.

      . Our decision must necessarily consider whether the federal courts would grant the relief requested because the petitioner is asking for relief on the basis of federal interpretation of federal law rather than on the basis of our construction of Texas law. However, we do not know under what authority the petitioner could pursue relief in the federal courts if we deny the relief he requests. While the petitioner could rely upon 28 U.S.C., Sec. 2255 (motion to vacate sentence) if he were still in federal custody, his remedies apparently will be limited to those authorized by 28 U.S.C., Sec. 2254, since he is in state custody. See Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). However, even though relief would be unavailable under Section 2255 in the form of a motion to vacate sentence, the petition would be heard by the federal courts as a writ of coram nobis pursuant to 28 U.S.C., Sec. 1651. See Wharton v. United States, 348 F.Supp. 1026 (D.C.Ark.1972), aff’d 470 F.2d 510 (8th Cir. 1972). The essential point is that there are at least two avenues by which the petitioner could properly obtain access to the federal courts. Since the petitioner is in state custody, we shall assume that he will seek relief pursuant to 28 U.S.C., Sec. 2254.

      .We do not have the complete record from the federal conviction before us. We therefore do not know whether a motion to dismiss the indictment was filed. However, Rule 12(b)(2), Federal Rules of Criminal Procedure, 18 U.S.C. Rule 12(b)(2), states:
      “(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. * * The following must be raised prior to trial: “(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); or . . . .”
      The cases interpreting Rule 12(b)(2) have consistently held that a failure to file a Rule 12(b)(2) motion does not waive jurisdictional defects in an indictment. See Bankston v. United States, 433 F.2d 1294 (5th Cir. 1970); Hayes v. United States, 464 F.2d 1252 (5th Cir. 1972); United States v. Willis, 515 F.2d 798 (7th Cir. 1975); United States v. Coppola, 526 F.2d 764 (10th Cir. 1975). Cf. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1931); United States v. Trollinger, 415 F.2d 527 (5th Cir. 1969); Rosecrans v. United States, 378 F.2d 561 (5th Cir. 1967).
      Thus, our inability to view the entire record of the federal conviction will not affect our determination of whether the federal courts would grant relief pursuant to 28 U.S.C., Sec. 2254. This is so even if the appellant did not appeal the federal conviction and would be asserting his claim in the federal courts for the first time by his 2254 motion. Cf. Hayes v. United States, supra. But see note 10, infra.

      .We cannot ascertain whether the petitioner intentionally bypassed federal appellate procedures so as to possibly preclude federal relief under Sections 2254, 2255 or 1651. See note 11, infra. However, since Bass was subsequent to the indictment, the plea of guilty, and the orders placing the appellant on probation and revoking his probation, the petitioner may not have intentionally bypassed his federal appellate remedies with regard to his claim under Bass.

      . The appellant was placed on probation upon his plea of guilty. On April 7, 1971, his probation was revoked. See record in Cause No. 50,243. Since Bass was decided on December 20, 1971, it is conceivable that the appellant did not appeal either the original conviction or the revocation of probation. Moreover, the record in Cause No. 50,243 (see note 3, supra), reflects that no notice of appeal was filed from the revocation proceeding of April 7, 1971. Thus, it is apparent that we are unable to even ascertain the exact sequence of events from the record.

      . The complete absence of appeals from cases asserting a Bass -type claim pursuant to Sections 1651, 2254 or 2255 may imply that all such claims have been granted in the District Courts. However, in the absence of authority, we do not attach any significance to this phenomenon.

      . Moreover, at least one other state court had held Leary retroactive. See In Re Johnson, 3 Cal.3d 404, 90 Cal.Rptr. 569, 475 P.2d 841 (1970).

      . Cf. Ex Parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1970), where this Court gave retroactive effect to the holding of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

      .Of course, recidivist statutes authorizing enhancement of punishment on the basis of prior convictions contemplate prior valid convictions. Cf. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Thus, some state courts will permit collateral attack of federal convictions used for enhancement, but the attacks have uniformly been on the basis of a denial of a fundamental constitutional right. Cf. Ex Parte Taylor, supra; In Re Johnson, supra.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Antonio Kenneth BAHENA, Appellant, v. The STATE of Texas, Appellee.
    No. 55928.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 25, 1978.
    Appellant’s Motion for Rehearing Denied Feb. 15, 1978.
    Joseph A. Calamia and Charles Michael Mallin, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation. Appellant was convicted of robbery, punishment was assessed at ten years, and he was placed on probation. One condition of his probation was that he commit no offense against the laws of this state. On December 17, 1976, a motion to revoke appellant’s probation was filed alleging that he violated the terms of his probation by committing the offense of unauthorized use of a motor vehicle (V.T.C.A., Penal Code Sec. 31.07) on December 5,1976. Following a hearing on February 23, 1977, appellant’s probation was revoked and punishment was reduced to five years.

Appellant contends the trial court abused its discretion in revoking his probation because it denied his motion for continuance and because the unrebutted evidence shows he did not voluntarily engage in the conduct for which his probation was revoked and lacked the culpable mental state required under the law. We will address the second contention first.

The motion to revoke alleged that appellant did:

“intentionally and knowingly operate a motor-propelled vehicle, to-wit: an automobile, without the effective consent of Armado Nava, Jr., the owner thereof.”

Evidence was presented showing that on the evening of December 5, 1976, appellant was the lone occupant and driver of an automobile involved in a one-car accident at the Paisano on-ramp to I — 10 in El Paso. Armando Nava of the El Paso police department arrived at the scene to investigate and found appellant standing by his car and holding his arm up with a rag wrapped around his wrist, which was bleeding profusely. Nava asked appellant if he wanted to go to the hospital, and appellant answered, “Yes I would like to.” Appellant related to Nava how the accident occurred in a coherent manner, and Nava accompanied appellant to the police car where he sat appellant in the back seat and administered first aid to his wrist. Appellant was coherent and exhibited an awareness of having been in an accident. He was confused and concerned about whether he was going to be taken to jail or to the hospital, but he was not in shock and did not appear to be under the influence of alcohol or drugs. After appellant was seated in the back seat of the police car, Nava started toward appellant’s car to obtain the registration and license plate numbers when he heard a door slam, turned around, and saw appellant had moved to the front seat in the driver’s position. Appellant then drove off in the patrol car and a short distance away collided with a city bus. He was unconscious at the scene with injuries to the head, and was taken to a hospital. Nava further testified he had custody of the police car and did not give appellant consent to operate it.

Friends of appellant testified that on the afternoon before these events appellant was visiting in their home when he exhibited unusual behavior. He began shaking and appeared to have trouble breathing. He fell from his chair to the floor shaking, his eyes bulged, and he was unresponsive to questions. After a time he recovered but was disoriented as to where he was, and had no recollection of what had happened. He vomited, and then went outside for fresh air. One friend intended to take him to the hospital, but he left first. The first accident occurred a short time later.

Appellant testified that he had no recollection of the events between when he blacked out at his friends’ and when he woke up in the hospital after the accidents.

Court-appointed psychologist Randolph Whitworth testified for appellant at the hearing on the motion for continuance and his testimony was considered also on the merits of the motion to revoke probation.

Whitworth’s report described tests administered to determine appellant’s psychological and intellectual condition, and addressed his competence to stand trial. In his eight page report Whitworth digressed briefly to make these comments:

“His description of his loss of consciousness with no apparent precipitating cause, which have occurred several times in the past, however, suggests the possibility of an organic or physiological problem. From his admittedly inexact description, the examiner suspects the possibility of grand mal epileptic seizures. No history of epilepsy other than these occasional losses of consciousness was evident from either the interview with him or his mother. Nevertheless, it is the examiner’s opinion that Mr. Bahena should have a complete neurological examination, including electroencephalographic recordings, to determine if there is any organic involvement, either epilepsy or some other condition.”

Whitworth was examined extensively on the subject of epilepsy. He was quick to point out, however, that any judgment regarding appellant would be pure speculation on his part, and that they were treading on an area beyond his expertise, inasmuch as he is a psychologist, not a medical doctor. After making it clear that he could not make a diagnosis of epilepsy, he did testify to the textbook descriptions of grand mal seizures and petit mal seizures.

“A. Generally there is a grand mal seizure, there is an immediate and without much prewarning a seizure, a loss of consciousness, in which the subject simply falls and is unaware of events occurring around him, quite frequently has what is referred to as convulsions, as most of you are familiar, tend to bite his tongue, swallow his tongue, and so forth. Generally when he recovers consciousness he is unaware of any events that have occurred from the time that he lost consciousness until he has recovered. This may last for a period of minutes and it may be as long as a period of several hours, but not generally. It is usually a fairly short duration.
“Q. Can there be a minimal loss of consciousness coupled with confusion as a symptom of the illness you have described?
“A. This is possible. It is possible with petit mal seizures in which the individual loses consciousness or loses awareness, but does not generally lose control of his motor behavior, that is he may simply sit and be talking to you — if I may describe the behavior — he may simply sit and be talking to you and very briefly lose consciousness. There is usually a rather blank look that comes over the face, and he recovers and does not fall or anything or go into convulsions. Again, I did not observe this. I am just explaining.” ■
******
“Q. I believe you said a person who experiences a grand mal seizure loses consciousness in thoughts?
“A. Well generally he loses motor control, he falls, generally will slump.
“Q. And then he has convulsions?
“A. Most of the time he will, he will certainly show symptoms that will be considered overall severe motor convulsions.
“Q. During that period of time he would be incapable for all purposes?
.“A. Yes sir.”
******
“Q. Doctor, a person who is under a seizure of petit mal would not necessarily be in a state of convulsions?
“A. That is correct.
“Q. But what as to his awareness or knowing what is going on about him or what is happening or what he is doing?
“A. This is an extremely difficult question to answer. Generally one assumes that the loss of consciousness in petit mal seizure is of very brief duration, it is usually seconds. That is why it is referred to as the small seizure. It is not usually one in which he loses consciousness for more than a few seconds.
“Q. But during that period the experience of loss of consciousness he is not aware of what is happening?
“A. That is correct.
“Q. I will ask you whether or not he is able to control himself?
“A. Generally again for that period of time he probably would not be.
“Q. Would you describe to the Court if you will what the symptoms are, what the apparent symptoms are of a person under the seizure of petit mal?
“A. Very few observable in most cases, having observed a number of instances and unless you are aware and know what to look for you often would not recognize them. As I said the individual may be talking to you and there will be a period of time in which he simply loses what is apparently his contact, but this will only be for a few seconds. The only apparent times, you will see a person who is rather blank looking, a blank look will come over his face, his eyes will perhaps glaze, and this will last for a few seconds and he will shake his head and often say ‘I’m sorry I was out of it for a few moments’, but this is the extent of a petit mal seizure.
“Q. I take it then in convulsions and seizures they generally occur and are associated with the diagnosis of grand mal epilepsy, is that correct?
“A. Again, the distinction between these are somewhat overlapping, but again, are neurologically specific and again in terms of electroencephalographic recording, and this sort of thing.”

Regarding the events on December 5, Whitworth testified that appellant was able to recall being at his friends’ house, that his next recollection was turning onto the freeway, that he next recalled being in a car with blood on the car and being in a car with a policeman, and that his next recollection was waking up in the hospital.

Appellant argues that this evidence shows “that because of some type of mental illness or physical condition that he did not voluntarily engage in conduct which was the basis of the revocation.” Appellant concedes that the trial judge as the trier of the facts was the sole judge of the credibility of the witnesses and the weight to be given their testimony. In this case, at issue were the events and actions of the appellant between the time Nava left him in the back seat of the police car and the time appellant drove it away. Appellant’s defensive evidence in no way contradicted Nava’s testimony showing the commission of the alleged offense. In fact, Whit-worth’s testimony on the nature of epileptic seizures supports the conclusion that even if appellant at times suffers such seizures, he could not have been in that state at the time he took the driver’s seat and drove off. The trial judge did not abuse his discretion in finding the allegations in the motion to revoke were true.

We turn now to the denial of appellant’s motion for continuance. Whitworth submitted his report to the court on February 17, 1977, and appellant’s counsel received a copy the next day. He filed a motion for continuance on the day he received the report noting that the hearing was set for February 23, quoting the portion of the report referring to the possibility of epilepsy (quoted hereinabove), and asserting a need for additional time to secure the recommended medical tests in order to adequately prepare a defense.

Regarding the time counsel had to secure other medical tests, we observe that the record contains appellant’s “Motion to Try Charges Which Are the Basis to Revoke Probationer’s Adult Probation Prior to Trying This Revocation.” This motion was filed on February 2, 1977, three weeks before the hearing on the motion to revoke, and alleges inter alia:

“The Probationer-Defendant intends to assert as a defense to both the revocation and the aforementioned indictment that at the time the incident occurred, which is the basis for the revocation and the indictment, he was suffering from a state of unconsciousness, amnesia and motor epilepsy.”

This instrument shows that counsel was aware of and considering the possibility of a defense based on epilepsy three weeks before the hearing. Thus, the psychologist’s report of February 17 was not his first acquaintance with this possibility. Diligence in seeking evidence for such, a defense is not shown.

Furthermore, even if appellant had secured evidence that he on occasions experiences epileptic seizures of the grand mal or petit mal type, as stated under discussion of appellant’s first contention above, Whit-worth’s testimony on the nature of epileptic seizures would support the conclusion that appellant could not have been experiencing such a seizure at the time of the acts he was charged with and found to have committed. Susceptibility to such seizures would not contradict the state’s evidence in this case and would be no defense.

The trial court did not abuse its discretion in denying the motion for continuance.

The order revoking probation is affirmed.

ROBERTS, J., concurs in the result.

PHILLIPS, J., dissents.


author: TOM G. DAVIS, Judge.

text:
    Ex parte Samuel Earl WILLIAMS.
    No. 56410.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Jan. 25, 1978.
    Appellants Motion for Rehearing Denied Feb. 15, 1978.
    Samuel Earl Williams, pro se.
   OPINION

Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.

TOM G. DAVIS, Judge.

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

On February 19, 1968, petitioner entered eighteen pleas of guilty in the 179th District Court of Harris County, resulting in judgments of conviction being entered in eleven robbery cases, one attempted robbery case, one assault to rob case, four felony theft cases, and one burglary case. On May 1, 1968, the trial court assessed punishments in each of these cases, with all sentences running concurrently, the maximum punishment assessed being a term of fifty years in one of the robbery cases. No appeals were taken from any of these convictions.

Petitioner filed an application for writ of habeas corpus in the trial court, alleging among other things that his pleas of guilty to the above-mentioned cases had been rendered involuntary because the State had not honored its plea bargaining agreement; that he was denied jury trials in some of these cases; and that he was denied the effective assistance of counsel. The trial court, without an evidentiary hearing, entered an order on June 13, 1975, which reads as follows:

“The defendant appeared in person and by counsel, and the application having been heard by the Court, the Court is of the opinion that said applications for post-conviction writ of habeas corpus be granted, and that the defendant SAMUEL E. WILLIAMS, be entitled to a new trial in each of the above-styled and numbered causes.”

Thereafter, the trial court entered orders granting new trials in thirteen of the cases, and the State filed motions for nolle prose-qui, which were granted by the court. Petitioner then entered pleas of guilty to the five remaining cases, robbery by assault indictments in Cause No. 124509 and Cause Nos. 124511-124514, and the trial court assessed punishment at twenty-five years in each case, with the sentences running concurrently. No appeals were taken from these “new convictions.” The trial court entered an order to the Texas Department of Corrections, instructing that institution to correct petitioner’s sentences accordingly on June 16, 1975.

No evidentiary hearing was conducted and the trial court entered no specific findings of fact or conclusions of law pertaining to the merits of petitioner’s contentions. There is nothing in the record before us which reflects that petitioner is entitled to the relief for which he prayed. See Morrow v. State, Tex.Cr.App., 481 S.W.2d 144; Reed v. State, Tex.Cr.App., 481 S.W.2d 814; McDonald v. State, Tex.Cr.App., 501 S.W.2d 111; Garrison v. State, Tex.Cr.App., 517 S.W.2d 553; Abron v. State, Tex.Cr.App., 531 S.W.2d 643.

Further, the trial court was without authority to grant the new trials in a post-conviction habeas corpus case, as only the Texas Court of Criminal Appeals has such authority over a final felony conviction. See Ex parte Friday, Tex.Cr.App., 545 S.W.2d 182; Ex parte Johnson, 153 Tex.Cr.R. 619, 224 S.W.2d 240; State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892; Ex parte Young, 418 S.W.2d 824.

Thus, the original eighteen judgments of conviction upon which sentences were pronounced on May 1, 1968, were never vacated and are still valid convictions. See Ex parte Friday, supra. The trial court’s order of June 16, 1975, directed to the Texas Department of Corrections is void and of no force and effect. The Clerk of this Court is directed to send a copy of this order to the Texas Department of Corrections.

The relief sought is denied.

      . Of course, this Court is not bound by the recommendations of the trial court. See Ex parte Taylor, 480 S.W.2d 693; Ex parte Stauts, 482 S.W.2d 638; Ex parte Bazemore, 430 S.W.2d 205.

      . Cause Nos. 116278, 123079, 124077, 124502, 124507, 124508, 124509, 124511-124515, 124517, 124520, and 124526-124531.


author: DALLY, Judge.

text:
    Leo LODEN, Appellant, v. The STATE of Texas, Appellee.
    No. 56978.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 1, 1978.

      John W. Key, Jr., Athens, for appellant.
    Melvin D. Whitaker, Dist. Atty., Athens, for the State.
    Before TOM G. DAVIS, DALLY, and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation.

Appellant pled guilty to the felony offense of driving a motor vehicle on a public highway while intoxicated. On July 28, 1975, punishment was assessed at imprisonment for 3 years, probated. One of the conditions of probation was that appellant commit no offense against the laws of this state.

On January 7, 1977, a second amended motion to revoke probation was filed alleging that appellant had appeared in a public place under the influence of alcohol to the degree that he endangered himself and others. After hearing evidence, the trial court revoked appellant’s probation and imposed sentence on January 12, 1977. Appellant contends that it was not proved he was intoxicated in a public place or that he was a danger to himself or others.

On the night of January 2, 1977, appellant and two companions entered the Sun-dance Saloon, a bar in or near Caney City, where they ordered and drank beer. Appellant was arrested at the bar at about 10:30 p. m., by an officer responding to a disturbance call by the bartender. The arresting officer testified that appellant was intoxicated. The bartender testified that appellant was intoxicated, had been using profane and abusive language, and had thrown a beer bottle which shattered two or three feet from her. Appellant denied throwing the bottle.

Appellant contends that a bar is not within the statutory definition of “public place.” V.T.C.A. Penal Code, Sec. 1.07(a)(29), defines “public place” as “any place to which the public or a substantial group of the public has access . . .” Although no witness expressly testified that the Sundance Saloon was a public place, the evidence shows that it was open to the public for business on the night in question. We hold that a bar open to the public for business is a public place under Penal Code, Sec. 1.07(a)(29), supra.

Appellant also contends that it was not proved he was a danger to himself or others. However, the bartender, whom the trial court obviously believed, testified that appellant threw a beer bottle in her general direction. Such an act constitutes a danger to others.

We find that a preponderance of the evidence establishes a violation of V.T.C.A. Penal Code, Sec. 42.08(a). We do not reach appellant’s challenges to the sufficiency of the evidence with regard to the other alleged probation violations.

The trial court did not abuse its discretion in revoking probation. The judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Geraldo RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 56617.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 18, 1978.
    Motion for Rehearing En Banc Denied Feb. 15, 1978.
    Hugh Lowe, on appeal only, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of possession of heroin upon appellant’s plea of guilty. Punishment was assessed by the court at three years.

Section 4.04(a) of the Controlled Substances Act, V.A.C.S., 4476-15, under which appellant was indicted, provides:

“Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice.”

In his sole ground of error appellant contends that the indictment is fundamentally defective by virtue of its failure to allege that his possession was not pursuant to a valid prescription or doctor’s order.

Our disposition of this appeal is controlled by the recent case of Threlkeld v. State, 558 S.W.2d 472 (Tex.Cr.App.1977), in which this identical issue was addressed. In Threlkeld, we acknowledged the common law rule relied upon by the appellant: that where a penal statute embraces an exception which is part of the statute itself, or the exception appears within the enacting clause of the law, it is necessary for the state to negate such exceptions in the indictment. It was this Court’s holding, however, that the common law rule was rendered inapplicable by the enactment of Article 4476-15, Section 5.10(a), which expressly removed the burden of negating in an indictment any exemptions or exceptions under the act and placed the burden of going forward with the evidence with respect to such exemptions or exceptions upon the defendant. Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Thompson v. State, 495 S.W.2d 221 (Tex.Cr.App.1973). Thus, the failure of an indictment to negate exceptions under Article 4.04(a) of the Controlled Substances Act will not render it defective.

Appellant, however, asserts that the “prescription qualification” of Section 4.04(a) of the Controlled Substances Act is not an exception or exemption, but is, in fact, a constituent element of the offense. He thus reasons that the failure of the indictment to negate this qualification constitutes a failure to allege an essential element of the offense; i. e., that appellant possessed heroin without a physician’s prescription. Clearly, this theory was rejected in Threlkeld when we held that the qualifying language employed in Section 4.04(a) of the Controlled Substances Act is an exception which does not necessitate negation in the indictment. Moreover, as appellant concedes, the purpose of exempting language in a statute is to define those circumstances in which one with proper authorization may lawfully engage in otherwise unlawful conduct. As a Schedule I controlled substance, heroin may not be dispensed pursuant to prescription, V.A.C.S. 3.08, and thus may not be legally possessed under any circumstances. Since there are no occasions where an individual is authorized to possess heroin, the lack of such authorization on the part of the defendant need not be shown in the indictment. The state need not negate that which is statutorily impossible.

No error having been shown, the conviction is affirmed.


author: ONION, Presiding Judge.

text:
    I. P. JIMMERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 56014.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 25, 1978.
    Appellant’s Second Motion for Rehearing Denied Feb. 15, 1978.

      Sam Saleh (court appointed), Lamesa, for appellant.
    Joe Smith, Dist. Atty., Seminole, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

Appellant, with leave of this court, has filed a motion for rehearing in which it is argued that this court committed error in affirming in a per curiam opinion the order revoking probation. The trial court had revoked appellant’s probation because it found that appellant had violated probation by possessing a usable quantity of marihuana and by communicating a false bomb report at Lamesa High School. This court affirmed the order revoking probation finding that “[e]ven though the (trial) court had other grounds, the evidence of appellant’s possession of marihuana is sufficient to support the revocation of probation. It is not necessary to discuss the other contentions.”

With regard to the allegation in the revocation motion as to the possession of marihuana, the record reveals that appellant, after being stopped for speeding on January 10, 1977, was arrested for disorderly conduct in violation of V.T.C.A., Penal Code, § 42.01(a)(4), and was taken to the city jail. Officers searched him during the booking process and two marihuana cigarettes were seized from one of his pockets.

Appellant, citing Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), contends that V.T.C.A., Penal Code, § 42.01(a)(4), is unconstitutional because it does not specifically define the proscribed conduct, and that because there was therefore no probable cause for his arrest then the subsequent search was not justified and the fruit of the search, the marihuana cigarettes, should not have been admitted into evidence. Appellant further argues that without the marihuana cigarettes being admitted into evidence there was insufficient evidence to support the revocation of probation.

V.T.C.A., Penal Code, § 42.01(a)(4), provides:

“(a) A person commits an offense if he intentionally or knowingly:
u * * *
“(4) abuses or threatens a person in a public place in an obviously offensive manner.”

In Gooding v. Wilson, supra, the Supreme Court held that a Georgia statute providing that “[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor” was on its face constitutionally vague and overbroad under the First and Fourteenth Amendments to the United States Constitution. The Supreme Court found that the Georgia courts had not narrowly construed such statute to apply only to “fighting” words “which by their very utterance . . . tend to incite an immediate breach of the peace” as required by Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

Does V.T.C.A., Penal Code, § 42.-01(a)(4), apply only to “fighting words” which by their very utterance tend to incite an immediate breach of the peace? While we are confident that the Legislature intended that anything short of “fighting words” would not be a violation of that section because the section was enacted and became effective (January 1, 1974) well after the decisions in Gooding v. Wilson and Chaplinsky v. New Hampshire, both supra, had clarified the law on the subject of disorderly conduct statutes, we do not reach that question because we find the evidence in this case is not sufficient to support an arrest for disorderly conduct. The only evidence on this issue came from the arresting officer who testified that appellant “used some profane language” and “was highly irritated and kept using, again, profane language”; that the only reason that appellant was placed under arrest was because of the profane language; and that another police officer “did drive up and hear him (appellant) . . cussing.” It is thus apparent that whether the words spoken were “fighting” words, “abusive or threatening” words, or words privileged by the First Amendment to the United States Constitution cannot be determined from this record. In the absence of any evidence as to the words used by the accused to trigger the arrest for disorderly conduct, we find no probable cause for such arrest. The marihuana cigarettes obtained in the subsequent search were therefore not admissible and the evidence was insufficient to prove the allegation in the revocation motion that appellant possessed a usable quantity of marihuana.

We now look to see if the trial court abused its discretion in revoking appellant’s probation because of its finding that appellant communicated a false bomb report at Lamesa High School. The record reflects that at about 11:30 a. m. on February 3, 1977, an office aide at Lamesa High School received a telephone call stating in substance that a bomb would be going off at 2:00 o’clock. The telephone company had earlier placed a tracing device on this telephone and it was determined within a matter of minutes that the telephone call had originated at 407 South 3rd Street, Lamesa. A police officer was dispatched to that address and upon arriving at about 12:05 p. m. saw appellant and three other young men “coming or walking away from the house.” One of the young men lived in the house and readily unlocked the door to let the police officer into the house. Because of the tracing device on the school’s telephone, the telephone inside the house was still connected to the school telephone. Ricky Walton, one of the young men at the house, testified at the revocation hearing that he observed appellant and one James Mason use the telephone shortly before noon on that day, but that only appellant talked on the telephone because the line was busy when Mason tried to use it.

Walton also testified that while he and appellant were under arrest and in custody in the police station he heard appellant say to the two other young men involved, “I don’t know what they’re booking you all for. I already told them I did it, that you all didn’t know anything about it.” The trial court originally sustained an objection to this testimony, but later overruled objection to it and let it in, stating, “I will overrule the objection at this time. After this is over with I am going to check that Statute (as to whether the Statute applies only to statements made to officers).”

That the testimony was erroneously admitted is without question. It is well established that oral statements in the nature of confessions made while in custody are not admissible under Article 38.22 of the Texas Code of Criminal Procedure, except in certain stated circumstances which are not pertinent here. Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971). While there is nothing in the record to reflect that the trial judge did “check that Statute,” it is presumed that he as the trier of the facts of a revocation of probation hearing properly disregarded the oral confession testimony. See Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973).

Using the preponderance of the evidence test applicable to revocation of probation hearings, Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974), we find the evidence, without the oral confession testimony, to be sufficient to support the revocation order in that appellant did communicate a false bomb report at Lamesa High School.

No abuse of discretion being shown, the motion for rehearing is overruled.

ROBERTS, ODOM, PHILLIPS and DALLY, JJ., concur in the result.

      . We need not determine the applicability of the 1977 amendment to Article 38.22, supra (Acts 1977, 65th Leg., ch. 348, p. 935), as the statement was made prior to the effective date of the amendment (August 29, 1977).


text:
    Carl HUGHES, Appellant, v. The STATE of Texas, Appellee.
    No. 56608.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 1, 1978.

      E. Neil Lane, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Don H. Dawson, Jr., Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for theft. Appellant pled guilty, waived his right to a trial by jury, and stipulated the evidence in open court and in writing. The court thereafter found the appellant guilty and assessed punishment at five years in the Texas Department of Corrections.

Appellant’s grounds of error pertain to the indictment. He was indicted and tried under V.T.C.A., Penal Code Sec. 31.03 which had recently been amended.

The indictment in question, excluding the formal parts, charged that the appellant:

“did then and there unlawfully appropriate property, namely fifty six tubes of fiberglass, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the owner, C. R. Bergstrom, of the property, knowing at the time that said property had been unlawfully obtained by another and that said property was stolen.”

He argues under the authority of Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590 that “without the effective consent of the owner” is a necessary element of the theft indictment and that the element’s absence renders the indictment fundamentally defective. This contention is without merit. In Johnson v. State, Tex.Cr.App., 547 S.W.2d 599, dealing with an indictment under the former theft statute, we held that the indictment must either

“allege whether the appellant exercised control of the property without the owner’s effective consent, as required by Section 31.03(b)(1), or whether he exercised control over the property obtained by another, which was stolen property, knowing it was stolen, as required by Section 31.03(b)(2).” at p. 600.

Finding that neither pleading alternative was followed, we held the indictment therein to be fundamentally defective.

In the present case, although the theft statute has been amended, we think the authority of Johnson, supra, is clearly applicable. An indictment alleging the commission of an offense under Sec. 31.03(b)(2) does not have to include an element of the theft statute under Sec. 31.03(b)(1). All that is required is that the indictment “allege all of the elements of whatever method of theft the State seeks to prove.” (Emphasis added.) Johnson, supra, at 601.

Appellant argues next that the indictment is fatally and fundamentally defective in that it fails to allege the name of the person from whom the appellant appropriated or received the property. We note that no motion to quash the indictment was filed. In that the sufficiency of the indictment is questioned for the first time on appeal, only jurisdictional defects will be considered. See Terry v. State, Tex.Cr.App., 517 S.W.2d 554, 555; American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598; Peterson v. State, Tex.Cr.App., 508 S.W.2d 844.

In Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266, 272, it was observed that all theft offenses have been consolidated into a single offense, see V.T.C.A., Penal Code Sec. 31.02 and we further noted that subsections (a) and (b) of Section 31.03 defined the different ways in which theft can be committed. Four different sets of possible elements for the offense of theft under the former penal statute were expounded and we held that

“an indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective, since ‘everything should be stated in an indictment which is necessary to be proved’,” citing Art. 21.03, V.A.C.C.P.

With the recent amendments to the theft statute, it is obvious that the offense of theft now has two different sets of possible elements:

(1) a person
(2) with the intent to deprive the owner of property
(3) appropriates property
(4)"without the owner’s effective consent; or
(1) a person
(2) with the intent to deprive the owner of property
(3) appropriates property
(4) which is stolen property
(5) knowing it was stolen
(6) by another.

An indictment which alleges all of the aforementioned elements of “whatever method of theft the state seeks to prove” will charge an offense against the law. Johnson, supra. Any complaint as to duplicity or want of sufficient notice may be waived. See Ex parte Cannon, supra. In the absence of a filing of a motion to quash, non-jurisdictional defects will not be considered for the first time on appeal. In discussing appellant’s claim of insufficient notice raised for the first time on appeal, we held in Trevino v. State, Tex.Cr.App., 519 S.W.2d 864, that:

“The defect complained of relates simply to the convenience of appellant in making his defense and, by going to trial without raising any such objection, it is presumed that appellant found the indictment sufficient to his own satisfaction and waived any objection. ... A defendant cannot wait to see the State’s case and then, if it appears adverse to him, claim for the first time he had no notice of precisely what he was charged with.” See also Drumm v. State, Tex.Cr.App., 560 S.W.2d 944 (1977); Rhodes v. State, 560 S.W.2d 665 (1978).

The indictment in question contained all the elements for the offense of theft under Sec. 31.03(b)(2). Any complaint concerning the want of sufficient notice as to the name of the individual from whom the appellant appropriated the stolen property is deemed waived, in the absence of filing a motion to quash the indictment.

The judgment is affirmed.

      . Subsections (a) and (b) of Section 31.03, amended by Acts 1975, 64th Leg., p. 914, ch. 342, Sec. 10, eff. September 1, 1975, provides:
      “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
      “(b) Appropriation of property is unlawful if:
      “(1) it is without the owner’s effective consent; or
      “(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”

      . Section 31.03 provided in part:
      val A person commits an offense if, with intent to deprive the owner of property:
      “(1) he obtains the property unlawfully; or
      “(2) he exercises control over the property, other than real property, unlawfully.
      “(b) Obtaining or exercising control over property is unlawful if:
      “(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
      “(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”


author: PHILLIPS, Judge.

text:
    Ex parte Oscar Puente LERMA. Ex Parte Ascencion Vela SALINAS.
    Nos. 56765, 56766.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 1, 1978.

      James M. Sims and Allen C. Isbell, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Don R. Stricklin, Asst. Dist. Attys., Houston, for the State.
   OPINION

PHILLIPS, Judge.

These are appeals from an order denying relief after habeas corpus proceedings were instituted for the purpose of having petitioners’ bail reduced. Petitioners are currently incarcerated in the Harris County Jail, under indictment for possession of heroin. The record reflects that the bond in these cases was set for each petitioner in the amount of $300,000.00. On October 18, 1977, a hearing was had on petitioners’ writs of habeas corpus for reduction of bond, and at the conclusion of the hearing the trial court refused to reduce petitioners’ bonds.

Petitioners present 21 grounds of error in which they contend that the trial court abused its discretion in not reducing the petitioners’ bonds. Consideration of this question is guided solely by Art. 17.15, V.A. C.C.P., which makes it clear that the question of bail is a matter within the trial judge’s discretion. Art. 17.15, supra, also suggests the following guidelines for fixing the amount of bail:

“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be-complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.”

The evidence adduced at the habeas corpus hearing established that petitioner Ler-ma is a Mexican National, is married and has two children. Lerma and his family live in Monterrey in a house he has owned for four and a half years. The majority of petitioner Lerma’s family lives in Mexico. He is employed as a taxi driver and has owned a brick factory in Monterrey for one and a half years. Although not totally paid for, petitioner Lerma also owns a 1977 Dodge automobile.

Petitioner Salinas is also a Mexican National, is married and has six children. Salinas lives in Monterrey with his family and owns his own home. He has no family living in the United States. His only connection with the United States is his employment as a parts buyer. He buys parts for large buses and trucks in the United States for use on vehicles in Mexico.

Gloria Machato, petitioner Lerma’s sister, testified that she is married and has lived in Houston for nine years. She stated her brother was a responsible citizen and would appear for trial if he could raise bond. She further testified that she would allow petitioner Lerma to live in her home while the case was pending. Similar testimony was elicited from petitioner Lerma’s brother, Isaac Lerma, and another sister, Rosie Mun-iz.

Paul Herring, a special agent for the United States Department of Justice Drug Enforcement Administration, testified that the petitioners’ reputation for being peaceful and law abiding citizens was bad.

John Tannor, a deputy sheriff, testified that approximately 39 ounces of heroin were found in the car used by the two petitioners. He stated that there were 28 grams in one ounce and each gram had a street value of $55.00.

Neither petitioner had been previously convicted of a criminal offense in the State of Texas or in Mexico.

The primary object or purpose of an appearance bond is to secure the presence of the defendant in court upon the trial of the offense charged. Ex parte Vasquez, Tex.Cr.App., 558 S.W.2d 477 (1977); Fly v. State, Tex.Cr.App., 550 S.W.2d 684; McConathy v. State, Tex.Cr.App., 528 S.W.2d 594. While bail should be sufficiently high to assure the defendant’s presence, it is not to be used as an instrument of oppression. Art. 17.15, supra; Ex parte Kerr, Tex.Cr.App., 549 S.W.2d 6; Ex parte Clark, Tex.Cr.App., 537 S.W.2d 40. Although not a controlling factor, we think petitioners have demonstrated their inability to make bond. Ex parte Redline, Tex.Cr.App., 529 S.W.2d 68; Ex parte Sierra, Tex.Cr.App., 514 S.W.2d 760; Ex parte Runo, Tex.Cr.App., 535 S.W.2d 188; Ex parte McClellan, Tex.Cr.App., 545 S.W.2d 483.

The nature and circumstances of the offense with which the petitioners have been charged must also be considered. In this regard, the punishment permitted by law may be considered. Ex parte Bufkin, Tex.Cr.App., 553 S.W.2d 116; Ex parte Clark, supra. In the present cases, the petitioners were charged with possession of heroin, a second degree felony, which carries a possible imprisonment of any term of years not less than two nor more than twenty. V.T.C.A., Penal Code, Sec. 12.33.

In viewing the record as a whole, we conclude that the bail of $300,000.00 was excessive. Bail is reduced and set in the sum of $75,000.00 for petitioner Lerma and set at $100,000.00 for petitioner Salinas.

It is so ordered.

      . These cases were submitted to Panel No. 3, First Quarter, 1978, on January 5, 1978, and transferred to the Court En Banc by the panel, pursuant to Rule 7 of the Rules of the Court of Criminal Appeals.


author: McDONALD, Chief Justice.

text:
    Kennedy MONROE, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 5885.
    Court of Civil Appeals of Texas, Waco.
    Jan. 12, 1978.

      Bill Vannatta, Clark & Vannatta, Waco, for appellant.
    John B. McNamara, Jr., McNamara & McNamara, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from an order of the trial court denying and overruling a motion to dissolve a Writ of Sequestration theretofore issued.

Plaintiff General Motors Acceptance Corporation filed suit against defendant Monroe alleging it owned a retail installment contract under which defendant purchased a 1976 Chevrolet automobile; that plaintiff had a security interest in the automobile to secure payment of the contract; and that defendant is in arrears on such contract. Plaintiff sought judgment for amounts due and foreclosure of its security interest.

Plaintiff further caused a writ of sequestration to issue to have the Sheriff take possession of the automobile pending further order of the District Court; which writ was executed.

Defendant filed motion to dissolve such writ of sequestration and order the automobile returned to defendant. The trial court after hearing denied and overruled such motion to dissolve the writ of sequestration.

Defendant appeals from the denial of such motion to dissolve the writ of sequestration on 11 points.

Plaintiff has filed motion to dismiss this appeal asserting such appeal is from an interlocutory order and not appealable.

An order to preserve property under the control of the court, or to dissolve such an order is interlocutory and is not appeala-ble, and an appeal from such order should be dismissed. East & West Texas Lumber Co. v. Williams, 71 Tex. 444, 9 S.W. 436; Keasler Lumber Co. v. Clark, Tex.Civ.App. (Texarkana) NWH, 151 S.W. 345; Gonzales Motor Co. v. Cain, Tex.Civ.App., 476 S.W.2d 124.

Except where some rule or statute authorizes an appeal from an interlocutory order there is no right of appeal. Shiflett v. Associated Oil & Gas Co., Tex.Civ.App. (Houston) NWH, 412 S.W.2d 705; Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994; Carpenter Body Works, Inc., v. McCulley CCA, Er. Ref., Tex.Civ.App., 389 S.W.2d 331. An appeal lies only from a final judgment. VATS 2249. A final judgment is one that finally determines all issues and disposes of all parties in a case.

The writ of sequestration and the denial of the motion to dissolve same exists only as a part of the main suit.

Motion to dismiss appeal granted.

APPEAL DISMISSED.


author: KLINGEMAN, Justice.

text:
    Harmon R. OXFORD, Appellant, v. LIVESTOCK SANITARY COMMISSION et al., Appellees.
    No. 15892.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 16, 1977.

      Royce A. Oxford, Brinkley L. Oxford, Oxford & Oxford, Edinburg, for appellant.
    John L. Hill, Atty. Gen. of Texas, David M. Kendall, Jr., Robert Steve Bickerstaff, Jr., Robert W. Gauss, Asst. Attys. Gen., Austin, for appellees.
   KLINGEMAN, Justice.

This case involves the Tick Eradication Program along the Texas-Mexican border. Harmon R. Oxford appeals from an order dissolving a temporary restraining order and denying his application for temporary injunction, which order also ordered appellant to observe a dipping order entered by appellee, Texas Animal Health Commission, a/k/a Livestock Sanitary Commission. Appellant had initially obtained a temporary restraining order restraining appellees from dipping cattle until a hearing was had on the application for temporary injunction. After a hearing, the trial court entered the order herein under attack.

Appellant’s sole point of error is that the trial court erred in refusing to grant a temporary injunction against appellees.

In suits for temporary injunctions the trial court has broad discretion to grant or deny the injunction, and its judgment will not be overturned on appeal unless the record discloses a clear abuse of discretion. City of Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579 (Tex.1972); State v. Cook United, Inc., 469 S.W.2d 709 (Tex.1971); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952); Rodriguez v. Bolado, 536 S.W.2d 88 (Tex.Civ.App.— San Antonio 1976, writ ref’d n. r. e.).

There are certain statutory provisions of the Tick Eradication Law, Tex.Rev.Civ. Stat.Ann. art. 7014g-l (Supp.1977), applicable here, which may be summarized as follows:

§ 3. Certain counties are quarantined because of tick infestation, which counties include Zapata. The Livestock Sanitary Commission is authorized to designate for tick eradication such counties, or parts thereof, without holding an election. Whenever the Livestock Sanitary Commission designates any of the aforesaid counties, or parts thereof, for tick eradication, the same shall be proclaimed by the Governor of Texas, which proclamation shall be in force and effect on and after the date prescribed in said proclamation.

§ 4. Whenever any county is designated for tick eradication by the Livestock Sanitary Commission and so proclaimed by the Governor, said proclamation shall contain a provision quarantining said county, and the effect of said quarantine shall be to quarantine said county and pastures, persons, lots and premises therein, and all cattle, horses, mules, jacks, and jennets of each individual owner, without specifically designating said land, pasture, person, pen, lot, or premises.

§11. Whenever the Livestock Sanitary Commission shall issue dipping directions in writing to any owner of any livestock which are located in the Tick Eradication Area or in the Free Area of livestock which have been exposed to said ticks or have been exposed to said ticks within nine months next proceeding the date of issuance of said written dipping direction, and said dipping directions are served upon said owner, it shall be the duty of said owner to dip said livestock as directed and also to dip all other livestock which may be located upon the premises referred to in said written dipping direction. Any owner who fails to dip said livestock shall be deemed guilty of a misdemeanor.

§ 12. Any person that desires a hearing for the purpose of protesting against the enforcement of any dipping directions issued under the provisions of this Act may file with the supervising inspector in the county in which said livestock are located, at least ten full days before the dipping date or dates on which he seeks to be excused from dipping such livestock, a sworn application for a hearing, which application shall be forwarded by the supervising inspector to the Livestock Sanitary Commission.

§ 32. The Livestock Sanitary Commission may establish necessary quarantines and restrictions on the movement of hay, hides, and carcasses from quarantined areas and premises and any person moving such hay, hides, or carcasses is in violation thereof and subject to a fine.

Governor’s Proclamation No. 417 recites that inspections have revealed that all livestock ranging in parts of the counties along the Mexican border are infested with or exposed to the fever-carrying tick and are subject to designation as Tick Eradication Areas by the Texas Animal Health Commission. Various counties, or parts thereof, including Zapata, are designated for systematic tick eradication work, and all territory and all premises therein are quarantined and all cattle, horses, mules, jacks, and jennets therein are quarantined.

Appellant asserts that the only question involved in this appeal is whether appellant’s hay, horses, and cattle are quarantined by virtue of Governor’s Proclamation No. 417, issued pursuant to art. 7014g-l. He contends that the evidence clearly demonstrates that he is not covered by the quarantine and never has been. One of appellant’s problems is that the judgment here involved says nothing about quarantines, and appellant’s application for a temporary restraining order and a temporary injunction pertain only to the dipping order. The trial court initially granted a temporary restraining order restraining appellees from dipping appellant’s cattle until a hearing was had on the application for a temporary injunction. The order here under attack dissolves the temporary restraining order, and denies the application for a temporary injunction.

The only question before this Court is whether the trial court abused its discretion in dissolving the temporary restraining order and in refusing to grant a temporary injunction.

The posture of this case is somewhat peculiar. At the hearing on the application for temporary injunction, after the trial judge informed the parties that he was ready to proceed, plaintiff’s attorney stated that he had no evidence to offer and that he was relying on his petition and the facts stated therein. At this time, appellees moved for judgment, wherein the court stated:

I understand and I think you would be entitled to it, but as a precautionary measure, in order to avoid a duplicity of actions, if the Court does not hear it now, it is going to hear it later, and I think it will be safer, since we are already here, to go ahead and hear whatever you have, counsel, and let me rule on it.

Appellant concedes that at this point, appel-lees could have presented no evidence and would have been entitled to judgment. The only evidence in this record was thereafter introduced by appellees after this admonition from the court.

Such evidence consists of several exhibits and the testimony of Mr. McMeans, an Animal Health Technician with the U.S. Department of Agriculture, Veterinarian Services Division, who acts as agent for the Texas Animal Health Commission in the Tick Eradication Program. It appears from the exhibit and testimony that certain lands in Zapata County, Texas are covered under the provisions of the Tick Eradication Program, as proclaimed under Governor’s Proclamation No. 417 and statutory provisions in connection therewith. Appellant is involved and connected with two tracts of land in Zapata County, one referred to as the “Anchor Home farm” and the other as the “Alfalfa farm.” The Alfalfa farm is used primarily to grow grains, although it has some livestock on it. The Anchor Home farm contains a home for boys, and on this farm there are several milk cows and, at times, calves.

McMean testified that fever ticks were found on cattle located on a farm adjoining the Alfalfa farm; that there were signs that such cattle from the infested farm had crossed over into the Alfalfa farm and there were signs of intermingling of the livestock; that the Alfalfa farm was determined to be exposed and was quarantined, and appellant was so notified; and that thereafter certain livestock on the Alfalfa farm were dipped. Appellant was also notified that while alfalfa produced on the Alfalfa farm could be used on this farm, it could not be moved off the premises unless the Commission approved; that the reason why the hay could not be moved is that tick eggs are laid in the grass and alfalfa and that any movement of this infested material would spread the ticks. He further testified that he learned thereafter that hay had been moved from the Alfalfa farm to the Anchor Home farm, which action resulted in the Commission quarantining the Anchor Home farm and the Commission issuing an order that the cattle on such farm be dipped.

The exhibits consist of (a) a copy of Governor’s Proclamation No. 417; (b) a summons to appellant pertaining to an alleged violation of the Tick Eradication Law by permitting the moving of alfalfa hay from a farm exposed to fever ticks; (c) a notice by the Texas Animal Health Commission finding that the Anchor Home farm had been exposed to the fever-carrying tick and quarantining such premises and all livestock thereon; and (d) a written order from the Texas Animal Health Commission to dip the livestock here involved.

It appears from the record that the Alfalfa farm is in the area designated in the Governor’s Proclamation; that the Anchor Home farm is in the Free Area; and that the provisions as to dipping of cattle (§ 11, 7014g-l) apply to any livestock located in the Tick Eradication Area or in the Free Area that have been exposed to ticks. Appellant filed no protest to the dipping order as provided for in § 12, art. 7014g-l.

It is to be remembered that this is an appeal from an order denying a temporary injunction, and the scope of our review is limited to the narrow question of whether the action of the trial court in denying the temporary injunction constitutes a clear abuse of discretion. Appellant saw fit not to present any evidence in the trial court, and it was incumbent upon him to show a clear abuse of discretion by the trial court. This he failed to do. The record does not disclose any abuse of discretion.

The judgment is affirmed.


author: ROBERTSON, Justice.

text:
    DALLAS HEATING CO., INC., Appellant, v. W. E. PARDEE, Appellee.
    No. 19333.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 23, 1977.
    Rehearing Denied Dec. 21, 1977.

      Mike McCurley, McGuire, Levy, Collins & McCurley, Irving, for appellant.
    John Paul Kelly, Dallas, for appellee.
   ROBERTSON, Justice.

W. E. Pardee sued Dallas Heating Co., alleging violations of the Texas Consumer Protection-Deceptive Trade Practices Act, Tex.Rev.Civ.Stat.Ann. § 17.41 et seq. (Vernon Supp.1977), in the sale of a compressor for an air conditioning unit. Although Dallas Heating was duly served with process, it failed to answer and a default judgment was rendered. Seven days after rendition of the judgment, Dallas Heating filed a motion for new trial by which it sought to have the judgment vacated. The trial court overruled the motion and Dallas Heating appealed. We reverse the judgment and remand for a new trial.

The primary issue in this case is whether the motion for new trial, together with the attached affidavits, established Dallas Heating’s right to a new trial. To justify vacation of the default judgment, Dallas Heating’s motion for a new trial must show that the failure to answer before judgment was not intentional or the result of conscious indifference, but rather was the result of a mistake or accident; further, the motion must set up a meritorious defense and be filed when its granting will cause no delay or hardship on the opposing party. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939); United Beef Products Inc. v. Lookingbill, 528 S.W.2d 310, 312 (Tex.Civ.App. — Amarillo 1975) writ ref’d per curiam 532 S.W.2d 958 (Tex.1976). Therefore, we must examine the sufficiency of Dallas Heating’s motion and affidavits in light of these three elements.

CONSCIOUS INDIFFERENCE

In its motion, Dallas Heating alleged that it unintentionally delayed the forwarding of citation to its attorney, and that the delay was not the result of conscious indifference. These allegations were supported by the affidavit of Dallas Heating’s service manager, Ralph Grantham, in which he states that he received a copy of the citation for the purpose of gathering all invoices and records pertaining to Pardee’s account, so that the materials could be delivered to Dallas Heating’s attorney. He further stated that after gathering the records and preparing a memorandum summary of the facts relating to the account, he placed the materials into an “out” basket on his secretary’s desk. It was his understanding that a corporate officer would then retrieve the documents and forward them to the corporation’s attorney. The officer did not retrieve the papers, however, apparently because he thought Grantham had forwarded the papers directly to the attorney. Upon receipt of the default judgment, the records were recovered from under a stack of records where it had been “inadvertently misplaced.”

Pardee argues that since the affidavit demonstrates Dallas Heating’s negligence in failing to answer before judgment, the motion for new trial was properly denied. Negligence, however, is not the test by which the defaulting party’s actions are measured. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); O’Hara v. Hexter, 550 S.W.2d 379, 382 (Tex.Civ.App. — Dallas 1977, writ filed); Healy v. Wick Building Systems, Inc., Doc. No. 19251 (Tex.Civ.App. — Dallas 1977) (not yet reported); Farley v. Clark Equipment Co., 484 S.W.2d 142 (Tex.Civ.App. — Amarillo 1972, writ ref’d n. r. e.). Rather, the question is whether the failure to answer was intentional or the result of conscious indifference. United Beef Products, Inc. v. Lookingbill, 528 S.W.2d 310, 312 (Tex.Civ.App. — Amarillo 1975) writ ref’d per curiam 532 S.W.2d 958 (Tex.1976). In the present case, Grantham’s affidavit shows that the default was the result of a misunderstanding as to who was to forward the process to the corporation’s attorney. Thus, the failure to answer was caused by a mistake or accident, and was not intentional or the result of conscious indifference.

We recognize that the trial court filed numerous findings of fact in this case, and that these findings have been relied upon to support, among other arguments, Pardee’s contention regarding Dallas Heating’s conscious indifference. However, we cannot consider these findings because the recitals in Dallas Heating’s affidavit were not controverted by Pardee. No fact issue was drawn regarding the allegations and in the absence of disputed facts, findings of fact are unauthorized. Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219 (1958); Spiller v. Spiller, 535 S.W.2d 683, 685 (Tex.Civ.App. — Tyler 1976, writ dism’d); Hutchinson v. Texas Aluminum Co., 330 S.W.2d 895, 898 (Tex.Civ.App.— Dallas 1959, writ ref’d n. r. e.). In such a case, the conscious indifference question must be determined in the same manner as the issue of meritorious defense, and it is sufficient that the motion and affidavit set forth facts which, if true, would negate intentional or consciously indifferent conduct. See Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966); Abercia v. First National Bank of San Antonio, 500 S.W.2d 573 (Tex.Civ.App. — San Antonio 1973, no writ). Of course, findings of fact would be authorized if the facts recited in the affidavit were controverted (and perhaps also if the facts recited would permit conflicting inferences), for in such a case, each party would be entitled to fully develop its view of the dispute at a full evidentiary hearing. This procedure does not apply to the sworn allegations of a meritorious defense which, if sufficiently specific, must be accepted as true despite the presence of disputed facts. Ivy v. Carrell, supra.

MERITORIOUS DEFENSES

Pardee pleaded two theories of recovery in his petition. He first alleged that Dallas Heating agreed to install a new compressor in his air conditioning system, but had installed a used, a rebuilt compressor instead. Alternatively, Pardee urged that the rebuilt unit, although warranted by Dallas Heating, was completely ineffective and inefficient.

a. Misrepresentation

In its motion for new trial, Dallas Heating denied the existence of any agreement regarding the sale of a new, rather than rebuilt, compressor unit. Since this factual dispute addresses the very basis of the misrepresentation theory urged by Par-dee, it clearly serves as a meritorious defense, provided that it is supported with sufficiently specific proof. Legal conclusions regarding defenses are insufficient to set up a meritorious defense; there must be specific factual allegations supported by affidavits or other evidence proving prima facie that the defense exists. Bredeson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 513 S.W.2d 110 (Tex.Civ.App. — Dallas 1974, no writ). In response to Pardee’s argument that Dallas Heating failed to install a new compressor unit under the agreement, Dallas Heating offered the affidavit of its sales manager, Hank Winget. He stated that he was contacted by Tom Pardee on behalf of his father, the Plaintiff, regarding the purchase of an air conditioning compressor unit. At that time, Tom Pardee wanted to have the broken unit replaced at the lowest possible expense, and after Winget explained the cost differential between new and rebuilt units, Tom Pardee decided to, and did, purchase a rebuilt unit.

Pardee challenges the sufficiency of this affidavit on two grounds: first, he argues that the statement that Tom Pardee was acting “on behalf of his father” is merely conclusory, and does not set forth sufficiently specific facts to establish a pri-ma facie agency relationship; secondly, Pardee urges that the affidavit does not show whether the compressor unit purchased by Tom Pardee is the one upon which this suit is based. He argues that the present affidavits do not negate the possibility that two compressors were purchased: a rebuilt one by Tom Pardee and a supposedly new one in a separate transaction. We cannot accept these arguments. The agency relationship does not depend upon express appointment or assent by the principal; rather, it may be implied from the conduct of the parties under the circumstances of the particular case. Irwin v. Irwin, 300 S.W.2d 199 (Tex.Civ.App. — Eastland 1957, no writ). In the present case, the various affidavits describing the conduct of the parties reveal circumstances from which the agency relationship may be implied. A second affidavit by Ralph Grantham, Dallas Heating’s service manager, reveals that he sent an employee to Pardee’s home to install a rebuilt compressor unit on the same day that Tom Pardee purchased a rebuilt unit “on behalf of his father.” The compressor was installed without objection, and functioned for approximately three weeks without incident. The record does not reflect any attempt by Pardee to disclaim his son’s authority to negotiate the sale of the compressor unit, and since Pardee acquiesced in the installation of the unit which his son had purchased, Dallas Heating could reasonably assume that the agency was valid.

Grantham’s affidavit also disposes of Pardee’s argument that there may have been more than one compressor sold. Grantham stated that the rebuilt compressor ordered by Pardee’s son was the one installed in Pardee’s air conditioning unit, and that the unit with the rebuilt compressor was the malfunctioning unit of which Pardee complained. Since the rebuilt compressor ordered by his son was the unit actually installed, even if Pardee had purchased another compressor, the uninstalled second compressor cannot have been the basis of his suit. Therefore, we conclude that the affidavits attached to the motion for new trial establish a meritorious defense to Pardee’s theory of misrepresentation.

b. Warranty

Regarding Pardee’s allegations that the compressor unit was ineffective and not of merchantable quality, Grantham’s second affidavit states that he instructed a serviceman to install a rebuilt compressor unit for Pardee on July 8, 1976. According to this affidavit, on August 1st and 28th, Pardee contacted Grantham’s office and reported that his air conditioning system was malfunctioning. On each occasion, a serviceman was dispatched, and it was determined that the malfunction was not due to compressor problems. The system was repaired on each visit, and after the service call on August 28th, Pardee again called to complain that his system was not working. A problem was found in the compressor as a direct result of a malfunction which had previously been repaired, and Pardee was told that the compressor, under warranty, would be replaced for no additional cost, other than labor, pursuant to the terms of the warranty. Pardee would not agree to pay the labor costs, so no further work was done.

These recitations, if true, would establish a defense to Pardee’s allegations regarding the unmerchantable character of the compressor. According, to Pardee’s petition, his complaint regarding unmerchant-ability is apparently based upon a breach of the implied warranty of merchantability set forth in Tex.Bus. & Com.Code § 2.314 (Vernon 1968). Pardee alleges that the compressor was “not fit for the ordinary purpose for which such goods are used.” This conforms to § 2.314(b)(3), which provides that in order to be merchantable, goods must be fit for the ordinary purposes for which they are used. However, Grantham’s affidavit counters these allegations by stating that the malfunction in the compressor was not the result of any inherent defect, but rather was caused by a malfunction in another part of the system. Since the determination of whether a product is defective must be made in light of its normal uses, Rourke v. Garza, 530 S.W.2d 794, (Tex. 1975); Helicoid Gage Division of American Chain and Cable Co. v. Howell, 511 S.W.2d 573 (Tex.Civ.App. — Houston [14th Dist.] 1974, writ ref’d n. r. e.), failure of an otherwise sound unit because of defects in related parts of the system would be a complete defense to Pardee’s allegations of breach of warranty.

DELAY OR HARDSHIP

In order to obtain relief from the default judgment by motion for new trial; Dallas Heating must have filed its motion at a time when the granting thereof would occasion no delay or otherwise injure Pardee. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Although this was alleged in Dallas Heating’s motion, no evidence was presented in support of that allegation. Citing United Beef Producers, Inc. v. Lookingbill, 528 S.W.2d 310 (Tex.Civ.App. — Amarillo 1975) writ ref’d per curiam 532 S.W.2d 958 (Tex. 1976), Pardee argues that in the absence of evidence showing that no delay or hardship would result, the default judgment should be affirmed. We cannot accept this argument. While it is true that Lookingbill denied relief in the absence of evidence that there would be no delay or hardship, the plaintiff in that case had filed a sworn response which set forth specific facts regarding hardship. In the present case, however, no controverting response was filed, and the record does not reflect any special circumstances which would impose a hardship upon Pardee. The motion for new trial was filed only seven days after rendition of the judgment, and Dallas Heating has emphasized that it stands ready for trial at Pardee’s demand.

Pardee also urges that, as in Lookingbill, Dallas Heating’s motion did not offer to reimburse him for costs of suit incurred in obtaining the default judgment, and that this, in itself, should preclude vacation of the judgment. We do not agree. Although we accept the rule set forth in Lookingbill which requires a defendant seeking relief from a default judgment to reimburse plaintiff for expenses incurred in securing the judgment, we are not convinced that Lookingbill established the rule that failure to offer reimbursement in the motion necessarily precludes vacation of the judgment. In its briefs and oral argument before this court, Dallas Heating has stated its willingness to pay all reasonable costs incurred by Pardee in obtaining the judgment, and upon remand, the trial court may determine which expenses, if any, Dallas Heating must reimburse. United Beef Producers v. Lookingbill, 532 S.W.2d 958, 959 (Tex.1976).

In view of the prompt and timely actions by Dallas Heating in challenging the judgment, its willingness to reimburse the costs of securing the judgment, and in the absence of any controverting evidence of hardship by Pardee, we conclude that, as a matter of law, no delay or hardship would have resulted from the granting of Dallas Heating’s motion for new trial.

The judgment of the trial court is reversed, and the case is remanded for a new trial subject to the trial court’s determination of Pardee’s costs of suit in securing the default judgment and reimbursement of that sum by Dallas Heating.