author: BROWN, Commissioner.

text:
    Leodis GRANDHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 50095.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Rehearing Denied Oct. 22, 1975.

      Paul P. Riley and John R. Vorhies, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky, Les Eubanks and Robert Prather, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was tried before a jury for the offense of rape by force, threats and fraud committed on September 5, 1973. At the punishment stage of the trial on January 31, 1974, appellant elected to be punished under the 1974 Penal Code. The jury assessed punishment at life imprisonment. The sufficiency of the evidence is not challenged.

All of appellant’s grounds of error are levelled at the court’s charge on punishment. The young lady who was the victim of the rape had gone to a public phone booth near El Centro College in Dallas where she attended classes at night to report her car stolen. Appellant approached her with his hand under the front of his shirt and told her he would shoot her if she did not hang up the phone. He then grabbed her, twisted her arm behind her back and pushed her into a dark parking lot between two cars and threw her to the ground. Appellant then tore her pants off. At this point she screamed, whereupon appellant beat her in the face with his fists and then pounded her head against the parking lot pavement. He then told her he would kill her if she did not spread her legs. Appellant then raped her.

The portion of the Court’s charge under attack by appellant is as follows:

“. . .A person commits aggravated rape if a person compels submission to the rape by threat of death or serious bodily injury to be imminently inflicted on anyone.
“If you believe beyond a reasonable doubt that the defendant committed aggravated rape upon Marilyn Rose Holder you will assess his punishment at life or not less than five (5) years nor more than ninety-nine (99) years confinement in the Texas Department of Corrections.
“You are further instructed that if you do not find beyond a reasonable doubt that the defendant committed aggravated rape as above defined then you will assess his punishment at not less. than two (2) years nor more than twenty (20) years confinement in the Texas Department of Corrections.”

Appellant first contends that the court erred in defining aggravated rape but refusing to define rape. The charge as drawn adequately placed the burden on the State to prove the aggravating circumstance beyond a reasonable doubt and if it failed to so prove, the jury was relegated to the lesser punishment for rape under Sec. 21.02, V.A.P.C. Since the jury had already determined appellant’s guilt of rape, the charge as given adequately protected appellant’s rights. Martinez v. State, Tex.Cr.App., 500 S.W.2d 151. See also Wright v. State, 527 S.W.2d 859 (Tex.Cr.App.1975); Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975); Rockwood v. State, Tex.Cr.App., 524 S.W.2d 292.

Appellant next contends that the court’s definition of aggravated rape was insufficient. This objection was not included in appellant’s objections to the court’s charge. Therefore, nothing is preserved for review. Taylor v. State, Tex.Cr.App., 489 S.W.2d 890; Meadowes v. State, Tex.Cr.App., 368 S.W.2d 203.

In his third ground of error, appellant challenges the sufficiency of the evidence to sustain a charge on aggravated rape. The testimony of the victim that appellant told her he had a gun and that he would kill her if she didn’t spread her legs was clearly sufficient to raise the issue of aggravated rape.

Appellant next attacks the charge on punishment for its failure to require the jury to find that the appellant had a culpable mental state. This issue had already been determined adversely to appellant when the jury found him guilty of rape. The charge as given adequately protected appellant’s rights. Gonzales v. State, Tex.Cr.App., 466 S.W.2d 772; Martinez v. State, supra.

Finally, appellant contends that the court erred in not charging the jury on insanity at the punishment stage. Two doctors testified that appellant was sane, knew right from wrong and was capable of conforming to the right even though he had a sociopathic personality. In view of this testimony no charge on insanity was either required or justified. Morris v. State, Tex.Cr.App., 382 S.W.2d 259.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Garry Frank GOBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 50348.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    James P. Finstrom, Court-appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, and Phil Dixon, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of theft of a horse. Punishment was assessed at five years. Imposition of punishment was suspended and appellant was placed on probation. Subsequently, probation was revoked, and appellant initiated this appeal.

Appellant first contends that his initial conviction was void because the prosecution was barred by the Saving Provisions of the new Penal Code. Section 6(b) of Acts 1973, 63rd Legislature, ch. 399, provides in part:

“Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act.”

The offense was committed in November 1973 and appellant was convicted after January 1,1974. Indictment was for theft of a horse under Article 1440, V.A.P.C. (1925). Although that article was specifically repealed on January 1, 1974 (Acts 1973, 63rd Leg., ch. 399, Sec. 3), the conduct of appellant that constituted an offense under that article also constitutes an offense under the new Penal Code. See Sec. 31.03(d)(4)(A). Accordingly, the prosecution was not dismissed under Section 6(b), supra. The ground of error is overruled.

Appellant next contends that the indictment is fundamentally defective for failure to allege the value of the horse, thereby failing to reflect jurisdiction in the district court. Article 27.08(4), V.A.C.C.P. An indictment for theft of a horse under Article 1440, V.A.P.C. (1925), need not allege the value of the horse in order to establish jurisdiction in the district court because under that statute theft of a horse, regardless of its value, is a felony. Although tried after the effective date of the new Penal Code, appellant’s trial was properly conducted under the following controlling portion of Section 6(a) of the Saving Provisions:

“ . . .a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force.”

Appellant’s second ground of error is overruled.

In his last ground of error, appellant asserts the trial court abused its discretion in revoking his probation. The State in its motion to revoke alleged three violations of the law in violation of the terms of appellant’s probation. In revoking probation the court found appellant had violated the condition of his probation that he commit no offense, finding that appellant did unlawfully drive a motor vehicle upon a public street while intoxicated, and did flee a police officer. In his brief, appellant only challenges the finding of the second violation. Since the other finding upon which probation was revoked is unchallenged, appellant’s contention, even if correct, would not show an abuse of discretion. The ground of error is overruled.

We observe the judgment and sentence erroneously recite appellant was convicted of theft of personal property over the value of fifty dollars. They are reformed to reflect the true offense for which appellant was convicted, theft of a horse.

The judgment, as reformed, is affirmed.


author: DALLY, Commissioner.

text:
    Carl L. BYROM, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50689-50691.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Rehearing Denied Oct. 29, 1975.

      Raymond E. Taylor, Court-appointed, San Antonio, for appellant.
    Ted Butler, Dist. Atty., John Hrncir and Douglas C. Young, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These appeals are taken from convictions for attempted murder (Cause No. 50,691), committed after January 1, 1974, and passing as true forged instruments (Causes Nos. 50,689 and 50,690), committed before January 1, 1974. A jury was waived and a motion for probation was denied in all three cases. In Cause No. 50,691, appellant entered a plea of guilty and punishment was assessed at imprisonment for 10 years. Appellant pleaded guilty in Cause No. 50,689 and not guilty in Cause No. 50,690; after election was made to be punished under the new Penal Code, punishment was assessed at imprisonment for 5 years in each case.

One ground of error is common to all three appeals. We shall consider it first:

“These proceedings, according to page 2 of the transcript, took place in a probate court, which was and is without jurisdiction in a felony prosecution.”

Reference here is made to the fact that the bailiff opened the proceedings by declaring the court to be a Probate Court. However, the judgment and sentence in each case indicate that the proceedings took place in the 187th Judicial District Court in Bexar County. These documents are controlling. The grounds are overruled.

ATTEMPTED MURDER—CAUSE NO. 50,691

The appellant contends that “the record and evidence viewed as a whole fails to show malice; a necessary element of the offense of attempted murder.” No authorities are cited and no argument is made under this ground of error. Nothing is presented for review. Article 40.09, Sec. 9, V.A.C.C.P.; Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973). The record reflects that the offense was committed July 20, 1974, subsequent to the effective date of the new Penal Code. The state correctly points out that malice is not one of the elements of murder under Section 19.02 of the new Penal Code. This ground of error is overruled.

The appellant challenges the sufficiency of the evidence. Appellant entered a plea of guilty and executed under oath a written waiver and consent to stipulations. Further, he made a judicial confession, admitting the truth of the allegations in the indictment. The judicial confession, standing alone, is sufficient to support the plea of guilty. Henderson v. State, 519 S.W.2d 654 (Tex.Cr.App.1975); Cevalles v. State, 513 S.W.2d 865 (Tex.Cr.App.1974); Battiste v. State, 485 S.W.2d 781 (Tex.Cr.App.1972). This ground of error is overruled.

Still another complaint is made that the indictment fails to state that the offense was committed in Bexar County, Texas. The indictment quite clearly states that the offense was committed in Bexar County, Texas. This ground of error is overruled.

The judgment in Cause No. 50,691-is affirmed.

PASSING AS TRUE A FORGED INSTRUMENT-CAUSE NO. 50,689

The appellant attacks the sufficiency of the indictment. The necessary elements of passing as true a forged instrument are:

(1) A person must pass as true
(2) a forged instrument in writing
(3) knowing that it was forged at the time of the passing.

Articles 996, 979, Y.A.P.C.; Montgomery v. State, 157 Tex.Cr.R. 44, 246 S.W.2d 209 (1952).

Appellant contends that the state did not allege a “passing” by virtue of its failure to include in the indictment a copy of the reverse side of the check where the appellant endorsed his name.

The indictment does not fail to allege a passing due to the failure to include in the indictment a copy of the endorsed back of the check. The check was complete without the endorsement. Gumpert v. State, 88 Tex.Cr.R. 492, 228 S.W. 237 (1921); Updack v. State, 131 Tex.Cr.R. 134, 96 S.W.2d 979 (1936); cf. Smiley v. State, 80 Tex.Cr.R. 280, 189 S.W. 482 (1916). The indictment alleged that the appellant, knowing that it was forged, passed a forged instrument to a named party with the intent to injure and defraud. The ground of error is overruled.

The appellant contends that the evidence is insufficient to sustain the conviction. Appellant made a judicial confession, admitting the truth of the allegations in the indictment. That confession is sufficient to support the plea of guilty. See the cases cited in our discussion in Cause No. 50,691, supra. These grounds of error are overruled.

The appellant contends that the check was not a negotiable instrument. He cites no authorities and makes no argument. Ground of error number eight is unintelligible. Failure to make an argument and to cite authority leaves us unable to ascertain appellant’s complaint. Nothing is presented for review. Article 40.09, Sec. 9, V.A.C. C.P.; Houston v. State, 506 S.W.2d 907 (Tex.Cr.App.1974); Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974). These grounds of error are overruled.

The judgment in Cause No. 50,689 is affirmed.

PASSING AS TRUE A FORGED INSTRUMENT-CAUSE NO. 50,690

In this case appellant sets out seven grounds of error; however, in light of our manner of disposition we need only deal with one ground.

Appellant challenges the sufficiency of the evidence contending that the state has failed to show a “passing” of the instrument involved in that the instrument was never “accepted” and that there was no voluntary relinquishing of the “consideration.”

The relevant facts are that on November 6,1973, the appellant presented to the night manager of an H.E.B. food store a check payable to and endorsed by the appellant. The check appeared to be drawn on an account of the Santa Rosa Medical Center at the National Bank of Commerce of San Antonio. The night manager of the H.E.B. store, Thomas Rau, took the check inside the teller’s cage in which he was located and counted out the appropriate amount of money. Rau testified that prior to handing the money over to the appellant he became suspicious of the check. He put the money down inside the cage where he thought it could not be reached, asked the appellant to wait, then turned to a check scanner located beside him in order to see if the check was good. While Rau was turned away, appellant reached into the cage and “fished” out the money which had been placed on the counter inside the cage. When Rau learned from the check scanner that the check was probably no good, he turned back to so inform the appellant; however, the appellant was at that point walking rapidly out the door. Rau shouted to him to stop, but the appellant got in his car and drove away.

The indictment, in pertinent part, reads as follows:

“CARL BYROM, in the County of Bex-ar and the State of Texas, on or about the 6th day of NOVEMBER, A.D., 1973, did then and there wilfully, knowingly and fraudulently pass as true to one THOMAS RAU, a false and forged instrument in writing, which had theretofore been made without lawful authority and with intent to injure and defraud

Where there are several ways by which an offense may be committed set forth in the same statute, and all are contained in the definition and made punishable in the same manner, they are not distinct offenses and they may be charged in the same count. Smith v. State, 81 Tex.Cr.R. 534, 197 S.W. 589 (1917). Both passing and attempting to pass a forged instrument as true may be charged in the same count. Smith v. State, supra. The indictment before us, however, alleges only a passing of the false instrument.

In Harvey v. State, 132 Tex.Cr.R. 214, 104 S.W.2d 51 (1937), this Court reversed a conviction for passing as true a forged instrument wherein the indictment alleged only a passing of the false instrument. There, the appellant had given a forged check in exchange for a watch. The storekeeper, before handing over the watch, turned to check first with the bank. Appellant then fled without obtaining the watch or retrieving his check. The Court held:

“The uncontradicted evidence shows that if appellant was guilty of anything she was guilty of the offense of attempting to pass the instrument.”

See also McConnell v. State, 85 Tex.Cr.R. 409, 212 S.W. 498 (1919); Jessup v. State, 44 Tex.Cr.R. 83, 68 S.W. 988 (1902); Houston v. State, 59 Tex.Cr.R. 505, 128 S.W. 618 (1910); Smiley v. State, 80 Tex.Cr.R. 280, 189 S.W. 482 (1916); Wilson v. State, 153 Tex.Cr.R. 572, 223 S.W.2d 234 (1949); Pate v. State, 172 Tex.Cr.R. 612, 361 S.W.2d 875 (1962); and Ware v. State, 475 S.W.2d 282 (Tex.Cr.App.1972).

Two recent cases contain language which would appear to lead to the conclusion that passing as true a forged instrument may be shown by a passing or an attempt to pass the instrument as true. Aldridge v. State, 492 S.W.2d 477 (Tex.Cr.App.1973); Rice v. State, 484 S.W.2d 589 (Tex.Cr.App.1972).

Rice is distinguishable in that there the indictment alleged both passing and attempting to pass the instrument. Proof of either would appear to support the conviction. The dicta in that case is not controlling here. The indictment contained in the record in Aldridge, on the other hand, alleged only a passing of the instrument, as does the indictment in the case at bar; however, the proof adduced at the trial distinguishes the two cases.

Aldridge “agreed to a stipulation of the testimony and entered a plea of guilty to the second count in the indictment which charged him with passing the check in question to Nadine Birchfield at the Wellington State Bank.” The stipulated testimony of Nadine Birchfield, admitted in evidence, stated that she “cashed [the check] and gave the money to Mr. Aldridge, who I recognize and identify.” Thus, Aldridge pleaded guilty to the completed offense of passing as true a forged instrument; he presented the check and was given money therefor. In the case before us appellant entered a plea of not guilty. The state showed that the appellant handed Rau a false instrument; however, instead of completing the transaction by handing appellant the money, Rau turned to the check scanner to ascertain the validity of the check. The appellant then reached into the cage, grabbed the money and fled. The passing was not shown to have been completed. At best what was shown was an attempt to pass the instrument or a theft.

We hold as we did in Harvey v. State, supra, that if the state alleges both a passing and an attempt to pass, proof of either will support a conviction; however, if the state alleges only a completed passing, it must show a completed passing; proof of a mere attempt will not suffice.

The judgment in this case must be reversed.

The judgments in Cause Nos. 50,689 and 50,691 are affirmed.

The judgment in Cause No. 50,690 is reversed and the cause is remanded.

Opinion approved by the Court.

      . Though this case involved a prosecution for attempting to pass a forged instrument, the facts are similar. The Court there said:
      “As appellant bargained for a watch and tendered the check in payment, and only left when Brodkey took the check and went to the telephone to ask the alleged maker of the check if it was genuine, taking with him the watch he had been bargaining for, it was an ‘attempt to pass’ the check, and this is the offense with which he was charged.”

      . This was a prosecution for attempting to pass a forged instrument. In answer to appellant’s contention that a passing had not been proved, the Court said:
      “Article 996, V.A.P.C., under which appellant was prosecuted proscribes not only the passing of a forged instrument as true, but also the attempted passing of such an instrument. It is not incumbent upon the State to prove acceptance of the forged instrument.”
      It would appear implicit in this holding that acceptance is an element of “passing” as opposed to “attempting to pass.”


text:
    Ex parte Thero WHEELER.
    No. 50735.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Sherman A. Ross, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order in a habeas corpus proceeding in which the appellant was remanded to custody for extradition to the State of California.

The appellant urges the trial court’s order should be reversed because it was not shown that the appellant was the same person named in the Governor’s Warrant and that the requisition of the Governor of the demanding state and supporting papers failed to meet the requirements of Article 51.13, See. 23(2), V.A.C.C.P., in that they failed to state the circumstances of the appellant’s escape from custody.

The Governor’s Warrant, which is regular on its face, was introduced into evidence; it recites that: “Thero Wheeler stands convicted of the crimes of robbery, second degree — in violation of Sec. 211, California Penal Code, and escape without force — in violation of Sec. 4530, California Penal Code, before proper authorities by indictment, judgments, and sentences and thereafter escaped from confinement” and that he had taken refuge in Texas.

When the Governor’s Warrant, regular on its face, is introduced, the state does not have any further burden of proving the identity of the relator as the fugitive named in the Governor’s Warrant, unless the relator raises the issue of identity.

The appellant says he has raised the issue of his identity as the fugitive named in the Governor’s Warrant through the testimony of Edith Baird. Mrs. Baird testified that she had known the appellant by the name of Bradley Bruce since April 26, 1974, when he was employed by the company for which she was the office manager. She did not know whether he had also used the name Thero Wheeler, or whether he had escaped from confinement in California prior to the time that she met him. The testimony of Mrs. Baird was not sufficient to raise the issue of identity.

We will now consider the appellant’s other contention. Article 51.13, Sec. 23(2), Y.A.C.C.P., in pertinent part, provides:

“When the return to this State is required of a person who has been convicted of a crime in this State and has escaped from confinement, ... or the warden of the institution . from which escape was made, shall present to thé Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement, the State in which he is believed to be, including the location of the person therein at the time application is made.”

The obvious purpose of the Article is to satisfy the Governor of the demanding state that the requisition for the fugitive should be issued. In this instance affidavits state the circumstances which led to the three convictions for which the appellant was serving prison sentences. Judgments of conviction as well as the indictments and information under which the appellant was prosecuted are also among the supporting papers. The affidavit then states that the appellant was transferred from Folsom State Prison to the California Medical Facility on November 8, 1972. On August 2, 1973, the appellant escaped, and on July 3, 1975, California officials were notified that the appellant had been apprehended in Houston earlier that day.

Keeping in mind the purpose of Article 51.13, Sec. 23(2), V.A.C.C.P., we find that under the circumstances of this case there was sufficient compliance with the statute, the statement of the circumstances of the appellant’s escape sufficiently supports the Governor’s Warrant, regular on its face.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Roger D. HOWERY, Appellant, v. The STATE of Texas, Appellee.
    No. 50776.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.

      Bill Cornett, Amarillo, for appellant.
    Randall L. Sherrod, Dist. Atty., and Richard L. Wilcox, Asst. Dist. Atty., Canyon, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On November 5, 1973, the appellant entered a guilty plea before the court to the offense of burglary of a private residence at night with intent to commit theft. Punishment was assessed at six (6) years, but the imposition of sentence was suspended and the appellant was placed on probation subject to certain probationary conditions.

On July 3, 1974, a first amended motion to revoke probation was filed alleging in two counts that the appellant on June 8, 1974 and June 9, 1974, “did then and there knowingly and intentionally deliver to W. L. Hord a controlled substance, namely: heroin” in violation of his probationary condition that he not violate penal laws.

On November 7, 1974, the court conducted a hearing on said motion at the conclusion of which the court revoked probation based on the offense alleged to have occurred on June 9, 1974.

Appellant contends the court abused its discretion in revoking probation, claiming in a number of grounds of error that the evidence was insufficient to sustain the probation.

Hord, an undercover agent for the Department of Public Safety, testified that he had heard the appellant’s name in an Amarillo lounge and on June 8, 1974, he in company with a man known as “Walt” went to the appellant’s house in Amarillo and met the appellant. He went inside the house and was introduced to Judy Howery, appellant’s wife. The appellant then asked Hord if he was interested in some “stuff,” and when Hord replied in the affirmative the appellant advised Hord he had one gram, but stated he “would have to talk to Judy.” After this, the appellant went into another room and his wife came from the back of the house and removed a tinfoil packet from a container and sold it to Hord for $65.00 and told him to come back if he needed more. The next afternoon, June 9, 1974, Hord returned to appellant’s house and Judy answered the door. Hord told her he wanted two grams. She invited him in and removed two tinfoil packets from a container and told him the price was still $65.00 a gram. He handed a $100.00 bill and two $20.00 bills to her and asked for change. She then called the appellant and asked if he had change, and he stated he didn’t but would get it. He took one of the $20.00 bills, left the house, and returned within ten minutes and handed a $10.00 bill to his wife, who handed the same to Hord. At this point the appellant “stated that he had to quit dealing as he was on probation at the present time.”

Hord testified he dated and initialed the packets and subsequently turned them over to the Department of Public Safety Chemist Johnson in Lubbock. Johnson related he ran tests on the substance in each packet and that it was determined to be heroin.

The appellant did not call any fact witnesses, but called his mother and brother in support of his plea that he be continued on probation. He offered the deposition of another witness, but it is not in the record before us.

Appellant contends the evidence was insufficient to sustain the revocation because it did not show that he personally delivered any controlled substance to anyone or was criminally responsible for an offense committed by the conduct of another. We do not agree.

V.T.C.A., Penal Code, Sec. 7.01, provides:

“(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
“(b) Each party to an offense may be charged with commission of the offense.
“(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

Sec. 7.02 of said Penal Code provides in part:

“(a) A person is criminally responsible for an offense committed by conduct of another if:
“(1) . . .
“(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense . . ..”

Under the facts stated above, we reject appellant’s contentions that the evidence was insufficient as claimed.

Appellant also urges that there is “no corroboration by a person other than the offeree or by evidence other than a statement of the offeree of an offer to sell a controlled substance by Roger Howery (appellant).” This contention is based on the definition of “delivery” found in Section 1.02(8) of the Controlled Substances Act (Article 4476-15, Vernon’s Ann.C.S.), which provides:

“ ‘Deliver’ or ‘delivery’ means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.” (Emphasis Supplied)

The transaction upon which revocation was based occurred on June 9, 1974. The offense of delivery which occurred was not based solely upon an offer to sell. The evidence showed the actual transfer of the controlled substance and the appellant’s participation therein. We reject appellant’s contention.

Appellant further urges that undercover agent Hord was an accomplice witness and that by the terms of Article 38.14, Vernon’s Ann.C.C.P., his testimony must be corroborated and it was not. It is well established that Article 38.14, supra, is not applicable to revocation of probation proceedings, and revocation may be based upon uncorroborated testimony of an accomplice witness. Barnes v. State, 467 S.W.2d 437 (Tex.Cr.App.1971); Moreno v. State, 476 S.W.2d 684 (Tex.Cr.App.1972); Stembridge v. State, 477 S.W.2d 615 (Tex.Cr.App.1972); Richardson v. State, 487 S.W.2d 719 (Tex.Cr.App.1972); Mann v. State, 490 S.W.2d 545 (Tex.Cr.App.1973). Still further, even if such rule was not applicable, the evidence does not show that Hord was an accomplice witness. It is well settled that an undercover “agent is not an accomplice witness so long as he does not bring about the crime, but merely obtains evidence to be used against those engaged in the traffic.” Alexander v. State, 168 Tex.Cr.R. 288, 325 S.W.2d 139 (1959); Jones v. State, 427 S.W.2d 616 (Tex.Cr.App.1968); Ochoa v. State, 444 S.W.2d 763 (Tex.Cr.App.1969), and cases there cited.

Appellant also advances the claim that the substance analyzed was not the same substance actually delivered. Hord testified the two tinfoil packets he received as a result of the transaction on June 9, 1974, were dated and initialed and placed in the locked glove compartment of his car until June 11 or 12 when he personally delivered the packets to Chemist Pat Johnson in Lubbock. Johnson identified the packets as the ones delivered to him by Hord and as the ones upon which he placed laboratory numbers before running tests which proved the packets contained heroin. Hord was recalled to the stand and identified the packets as the ones he delivered to Johnson. It appears to be appellant’s contention that Hord had also made a delivery of cocaine case on June 9, 1974, and that three packets obtained in this cocaine case were in the glove compartment with the exhibits in question and had been marked identically and as a result thereof the State failed to prove by competent evidence that the same substance received as a result of the transaction with appellant and his wife on June 9, 1974, was the same substance analyzed as heroin. Under the evidence we reject such contention. There is nothing in the evidence to suggest any tampering with the exhibits or any possible confusion with packets allegedly containing cocaine. Walker v. State, 470 S.W.2d 669 (Tex.Cr.App.1971).

Lastly, we consider appellant’s contention that the court erred in revoking probation based on the June 9, 1974, transaction “because the court held that Judy Howery and appellant were co-conspirators when there were no allegations in the motion to revoke probation of a criminal conspiracy.” The revocation was not based on criminal conspiracy, but on the allegation of delivery of a controlled substance on June 9, 1974. Appellant’s complaint is really directed to the admission of Judy Howery’s conversation with undercover agent Hord on June 9, 1974, apparently in the absence of the appellant. No objection was made until the evidence reflected that Hord asked for his change. The hearsay objection then made was overruled with the court stating in part, “ . . . she’s a co-conspirator in this, as far as I am concerned.” Shortly thereafter, the evidence reflects that the appellant entered the room and all subsequent conversations were in his presence. The only testimony admitted over objection was that Hord asked for his change and appellant’s wife advised him she did not have change but the appellant would, get some. The subsequent evidence, clearly admissible, established the same facts. The error, if any, was harmless. Further, in a revocation proceeding a judge is deemed not to consider inadmissible evidence.

The judgment is affirmed.


author: ODOM, Judge. MORRISON, Judge DOUGLAS, Judge

text:
    Raul MALDONADO, Appellant, v. The STATE of Texas, Appellee.
    No. 49286.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.

      James S. Bates, Edinburg, for appellant.
    Jim D. Vollers, State’s Atty., and David S. MeAngus; Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The offense was possession of more than four ounces of marihuana; the punishment, confinement for seven years and a fine of five thousand dollars.

Appellant’s sole ground of error is that the trial court erred in overruling his motion to suppress and admitting marihuana into evidence at trial. He asserts that a warrantless search of the vehicle containing the marihuana violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. The State in its brief avers only that appellant has no standing to contest the legality of the search.

The facts relevant to a proper disposition of this case are lengthy and somewhat complicated, involving two arrests and several vehicle searches. On August 31, 1973, Highway Patrolmen Franklin W. Robinson and Stanley Oldham joined a road block on Interstate 35 about three miles south of New Braunfels. Robinson and Oldham arrived at the road block at approximately 2:50 a. m. The road block had been established by other officers to attempt to apprehend some prisoners who had escaped from a jail in Hondo. Every northbound vehicle was stopped.

Appellant arrived on the scene at 3:35 a. m. He was alone and driving a 1968 Ford truck with a blue cab and two green sideboards. The back of the truck was open.

Robinson asked to see appellant’s driver’s license. Appellant responded that he had a valid license but had left it at home. He could produce no identification, but gave his name and address as Raul Maldonado of 1122 North 19½ Street, McAllen, Texas. In answer to further questions, appellant stated that he did not have the registration receipt for the truck, but the owner was a close friend, “Jose,” whose last name he could not remember. Appellant gave the officer the vital statistics that might aid in determining whether he held a valid driver’s license. While the registration and license checks were made by radio, Robinson again asked appellant who owned the truck. This time the response was “Pedro,” but again he could not remember the last name. The return on the registration check showed the owner to be Jose Garcia of Mission. Because of the lateness of the hour and the combination of name and birth date, it could not be determined whether appellant held a valid driver’s license.

When asked about his destination, appellant said that he was traveling to San Antonio to pick up some furniture at a location near the Alamo, but could give no further details. He explained his presence north of San Antonio by stating that he was first going to visit some relatives in Austin, but he could not furnish any name, address, or telephone number.

Appellant was arrested for operating a motor vehicle without a valid driver’s license and failure to display vehicle registration receipts. The officers frisked him and inspected the exterior of the truck. The back of the truck appeared to be empty. The front license plate was wired on and bore a rusted bolt mark, indicating that at one time the plate had been bolted to some vehicle.

Appellant was not taken to the Comal County-jail until 4:15 a. m. The arresting officer at the pre-trial hearing testified that during all this time appellant’s demeanor and conduct were wholly unsuspicious. He did not appear to be under the influence of any intoxicant, stood or sat quietly by the side of the road while waiting to be taken to jail, and generally “was co-operating” in every way. The interior of the truck was not searched, the officer testified, because no police officer present felt that the appellant posed any danger.

At 4:30 a. m. the truck was towed to M.G.’s Garage in New Braunfels, which was customarily employed by the police for general storage of vehicles. At 6:45 a. m. the road block was discontinued.

At 7:00 a. m. Robinson telephoned Bobby G. Prince, a criminal investigator in the Motor Vehicle Theft Division of the Texas Department of Public Safety. Robinson expressed his suspicion that the truck was stolen based upon the details recited above: appellant’s lack of possession of a driver’s license or truck registration receipt, lack of information about the owner, unsatisfactory explanation of his destination and route, and the rusted bolt mark on the front license plate.

At 8:15 a. m. Prince began his investigation by going to M.G.’s Garage. His investigation consisted of checking the vehicle identification number on the door, noticing that there was fresh paint under the identification plate, and determining shortly aft-erwards by radio that the identification number corresponded to the license plate number, both of which had been issued to the truck. At midmorning he learned that there was no stolen report on the truck. If Prince had also checked the vehicle identification number on the frame of the truck and the confidential police number located elsewhere on the truck, he would have discovered, as ascertained much later, that both these numbers also corresponded to the others.

During this investigation, Prince drove to the Comal County Courthouse. Before his arrival, appellant pled guilty to the two offenses with which he was charged, paid his fine, and walked out of the courtroom, apparently a free man once again. He proceeded to walk toward a door in the courthouse that led to the outside parking lot. At this point, appellant was not in custody or under arrest for any charge.

Before appellant reached the door, Prince entered and stopped him. Prince asked appellant if he was Raul Maldonado. Appellant answered that he was, whereupon Prince stated that he wished to talk to him.

During this conversation, appellant’s memory and lapses of memory substantially corresponded to those of the early morning, except that he now identified the owner of the truck as “Pepi.”

For the next three hours, or between 9:00 a. m. and noon, Prince continued to talk to appellant in a room in the Sheriff’s office at the courthouse. Although appellant was apparently left unattended at times for this three hour period, he was nevertheless restrained of his liberty. Prince had already once restrained appellant from leaving the courthouse. If Prince had observed him trying to leave again, it is reasonable to infer that he would have stopped him again.

Appellant was “under arrest” at 9:00 a. m. or very shortly thereafter. “It is not the actual physical taking into custody that will constitute an arrest. An arrest is complete whenever a person’s liberty of movement is restricted or restrained.” Hardinge v. State, Tex.Cr.App., 500 S.W.2d 870; Vernon’s Ann.C.C.P., Article 15.22.

Appellant was returned to jail at noon.

About 2:00 p.m., with appellant still in custody, Prince learned from South Texas police authorities that they had no knowledge of Raul Maldonado, that he had no drug arrests, that the registered owner of the truck was in Michigan, and that “in the past trucks of this nature [had been] used to transport narcotics, in different methods.”

At about 3:00 p.m. Prince returned to M.G.’s Garage to examine the truck once more. He was accompanied by Sergeant B. L. Hierholzer of the Narcotics Service, Department of Public Safety, San Antonio, and Captain John Wood of the Texas Rangers. The officers first checked the identification number on the frame of the truck, which matched the door identification and license plate numbers.

Then the confidential or “secondary YIN number” on the truck was finally checked, and it, too, matched the door and engine numbers as well as corresponding to the license plate number.

Finally, Prince noticed that the inside of the truck appeared to have a shorter depth than the outside. Upon climbing into the back of the truck, the officers noticed a piece of plywood nailed onto the floor. The officers extracted the nails and discovered a false compartment in the truck containing 650 wrapped packages of marihuana.

The contention that appellant has no standing to contest the legality of the search is without merit.

In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Supreme Court of the United States enumerated three bases upon which a defendant might establish that he is a “person aggrieved” by an unlawful search and seizure: (1) his proprietary or possessory interest in the thing searched or seized; (2) his legitimate presence on the premises searched; or (3)his having been charged with an offense an essential element of which is possession of the seized evidence. The last basis is commonly referred to as the “automatic standing” doctrine.

Appellant has standing under the first and last of these bases. The evidence does not establish that the appellant did not have a proprietary or possessory interest in the truck at the time of the search. The State correctly points out that the evidence also does not establish the contrary.

In Clemons v. State, Tex.Cr.App., 501 S.W.2d 92, 93, we quoted approvingly from Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) and Jones, supra:

“[I]t is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation is disputed that he establish, that he himself was the victim of an invasion of privacy.” (Emphasis added.)

Appellant’s standing was never contested in the proceedings below. The State raises the issue for the first time in its brief upon appeal. The State should not be heard to complain of an incomplete record when its failure to dispute appellant’s standing is responsible for the deficiency.

Moreover, appellant has automatic standing because he was charged with possession of marihuana. The holding of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), was that a defendant’s testimony at a pre-trial hearing in support of standing is inadmissible at the trial on guilt or innocence. This holding has in many cases reduced the need for the automatic standing doctrine established in Jones, supra. Simmons, itself, however, reaffirmed the doctrine, 390 U.S. at 390, 88 S.Ct. at 974. To this day, as the Court of Appeals for the Fifth Circuit has recently said, “[T]he rule is still the law.” United States v. Hunt, 505 F.2d 931, 939 n. 9 (5 Cir. 1974). See Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973).

Jones, supra, has long been the law in Texas. Henley v. State, Tex.Cr.App., 387 S.W.2d 877 (1964); Vines v. State, Tex.Cr.App., 397 S.W.2d 868 (1966); Holcomb v. State, Tex.Cr.App., 484 S.W.2d 929 (1972), cert. denied, 410 U.S. 940, 93 S.Ct. 1404, 35 L.Ed.2d 606 (1973). In the recent case of Hutchinson v. State, Tex.Cr.App., 509 S.W.2d 598, we considered a defendant’s claim that he had automatic standing. The claim was rejected because the appellant there was not charged with a possessory offense. Here, where appellant has been charged with such an offense, he has automatic standing.

We therefore now turn to the issue of the lawfulness of the 3:00 p.m. search. To hold it valid we must make three findings:

(1) That the search was supported by probable cause, the threshold requirement of any valid search.

(2) That the failure to obtain a search warrant was excusable because the search was incident to a lawful arrest or was justified by some other exigent circumstance furnishing an exception to the warrant requirement.

(3) That the scope of the search was consistent with its purpose.

The inability to make any one of these findings must invalidate the entire search, and mandate the further conclusion that the trial judge erred in overruling appellant’s pre-trial motion to suppress the marihuana. In spite of our doubts as to the existence of probable cause, we decline to invalidate the search on that basis. Rather, we hold that the trial judge should have suppressed the marihuana because the police failed to obtain a warrant and because, even if the failure to obtain a warrant was excusable, the scope of the search exceeded any permissible purpose for which it may have been initiated.

The State’s failure to obtain a search warrant cannot be excused. We begin with the proposition that “[Sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Hence, the State must show incidence of the search to the arrest or the existence of “exigent circumstances” within an established exception to the warrant requirement to justify the failure to obtain a warrant. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970).

The search was not incident to either of appellant’s arrests. First, at the time of the search appellant had discharged his obligation for the traffic offenses, which in any case could not have conferred the right to conduct a warrantless general search.

Second, appellant’s second arrest occurred about 9:00 a.m. at the Comal County Courthouse. The third vehicle search was conducted at 3:00 p.m. at M.G.’s Garage. “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964).

The truck while in police custody could not be subject to the moving vehicle exception of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

On its face, Chambers v. Maroney, supra, might be seen as justifying the search. In that case some men had committed a robbery at a gas station. On the basis of a detailed description of the number of men, the clothing of two of them, and the automobile used in the robbery, police stopped the petitioner and three other men. All were arrested and the car was taken to the police station where a warrantless search revealed guns used and money taken in the robbery. The Court rejected the petitioner’s contention that the failure to obtain a warrant invalidated the search:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances ... In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.”

Chambers v. Maroney, supra, 399 U.S. at 51, 52, 90 S.Ct. at 1981, 1982.

Here, however, the vehicle was already immobilized and appellant had been in custody for hours. The vehicle was under guard in a fenced yard used by the police for storage of vehicles in their custody and no one could tamper with it in any way. Its continued immobilization until a search warrant could be obtained would .have been no greater intrusion upon the appellant than that already imposed by virtue of his incarceration. Chambers, supra, was not decided in this context, but, rather, in a context where the immobilization of a vehicle while a search warrant was obtained would have itself constituted an intrusion.

Because the accused was in custody at the time of the search, we find the facts and rationale of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744 applicable to the instant case. In Coolidge, supra, at the time petitioner was arrested at his home an automobile in his driveway was seized, taken to the police station, and searched without a valid warrant. The court stated:

“Chambers, supra, is of no help to the State, since that case held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station. ... On its face, Chambers purports to deal only with situations in which the police may legitimately make a warrantless search under Carroll v. United States . . .”

Coolidge v. New Hampshire, supra, 403 U.S. at 463 &n. 20, 91 S.Ct. at 2036 &n. 20 (emphasis in original). Similarly, the State here cannot rely on Carroll, supra, because the truck was beyond appellant’s control at the time of his second arrest. If Carroll is inapplicable, so is Chambers. On the contrary, here, as in Coolidge, the warrantless search was planned. Coolidge, supra, 403 U.S. at 471 n. 27, 91 S.Ct. at 2041 n. 27. Where the search is planned, the thing searched is beyond the effective reach of the accused, and the obtaining of a warrant involves no greater intrusion upon the accused than that already imposed upon him, there is no exigent circumstance justifying a warrantless search. As Investigator Prince himself testified at the pre-trial hearing:

“Q. All right. Was the Justice of the Peace office at the Comal County courthouse still open at that time [3:00 p.m.]?
“A. Yes, sir.
“Q. Did you come down and attempt to get a search warrant?
“A. No, sir, I did not.
“Q. To your knowledge did anyone attempt to come down and get a search warrant to search the truck?
“A. No, sir, not to my knowledge.
“Q. Was there any legitimate reason why one could not have been procured?
“A. No, sir.”

We find that no warrantless search was authorized under any exception to the warrant requirement.

There is yet another reason why the search must fail. The scope of a search is limited to the purpose which made its initiation permissible. Coolidge v. New Hampshire, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Haynes v. State, Tex.Cr.App., 475 S.W.2d 739. The purpose of this search was to look for evidence that the truck was stolen. The scope of such a search might reasonably have been expected to include examination of all identification numbers and of any area of the truck where evidence that someone else had owned or driven the truck might reasonably be expected to be found. Hence, a search of the glove compartment, floorboards, and rear areas might, for example, turn up some document or item bearing the true owner’s name. A search of the rear area of the truck might uncover some object belonging to the owner, perhaps with his name or address thereon. But once the police began ripping up the floorboards of the rear area of the truck, the permissible scope of a search for this purpose was exceeded. It could not reasonably be expected that evidence of theft might be uncovered by these means. Rather, a variety of suspicious circumstances, some justified and some ill-founded precipitated an “exploratory search,” unsupported by independent probable cause to believe contraband might be discovered, and beyond the scope of any search that was supported by probable cause. Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739.

We find the search and seizure were in violation of appellant’s constitutional rights, and the fruits should have been excluded from evidence.

The judgment is reversed and the cause remanded.

MORRISON, Judge

(concurring).

I concur in the reversal of this conviction, but not entirely upon the reasoning of my Brother Odom. As I see it, the probable cause to search the truck ended at noon. Up until that time the officers were seeking to determine if the truck was stolen, and they had ample probable cause to pursue their search to that point. However, they were never able to establish that the truck was stolen.

When the officers branched off on a new and independent narcotics investigation with no more information than they had, their original probable cause came to an end and any search thereafter was illegal. It is important to note that up until noon of the day of appellant’s arrest the motor vehicle theft investigator had found nothing about the appellant or about the truck to alert him in any way to the probability that the truck was being used for narcotics.

Shortly after noon the motor theft investigator went to San Antonio and returned with a Texas Ranger and a narcotics investigator and the search was reinstituted. This was done upon the scant information, from someone the motor theft investigator did not know, “that trucks in the past of this type had been used to transport narcotics”.

The officers’ original probable cause will not carry over to this second search. It is obvious that we do not have in the case at bar “the same continuity of purpose” discussed in our opinion on rehearing in Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, 408.

DOUGLAS, Judge

(dissenting).

The writer is of the opinion that the officers had probable cause to believe that the truck was stolen and that the search was not unreasonable.

Appellant’s sole ground of error is that the court erred in admitting the marihuana obtained from the search. He contends that it was obtained as a result of an illegal warrantless search and seizure in the absence of probable cause and exigent circumstances and in violation of the applicable provisions of the United States Constitution and the laws of Texas.

The record of the evidence at the hearing on appellant’s motion to suppress was admitted by stipulation as evidence at the trial. The police report filed in the case was also admitted into evidence. All evidence was admitted subject to the appellant’s objection.

At about 2:30- a. m. on the morning of Friday, August 31, 1973, Officers Frank Robinson and Stanley Oldham of the Texas Department of Public Safety established a roadblock on Interstate 35 south of New Braunfels. The purpose of the roadblock was to locate escapees from the Hondo jail. All northbound traffic was stopped at the roadblock.

At about 3:35 a. m., appellant was stopped at the roadblock. He was driving a 1968 Ford truck. Upon stopping the appellant, the officers asked him if he could show them his driver’s license. The appellant said that he did not have his driver’s license with him. The appellant was not able to produce any license receipts for the truck. The appellant gave his name as Raul Maldonado and his birth date as 07-06-52. However, when questioned as to the owner of the truck, the appellant said that it belonged to a close friend of his, Jose, but he was unable to supply Jose’s last name or address. Later, while the officers ran a license check, the appellant said that Pedro owned the car, but again was unable to supply a last name.

Apparently due to the combination of the name of the appellant and the birth date, the Department of Public Safety in Austin was unable to give the officers any verification of the appellant’s driver’s license. The officers also ran a check on the license plates and determined that they were registered to a Jose Garcia of Misson. During this interval, the officers frisked the appellant for weapons and walked around the truck to see if it or its contents posed any danger to the police. No one else was in the truck.

At about 4:15 a. m., the officers arrested appellant for operating a motor vehicle without a valid driver’s license and for failure to display license receipts for the truck. The appellant was taken to the Comal County jail by a Comal County deputy. The officers took custody of the truck and had a wrecker from a private garage in New Braunfels tow the truck away. The truck was stored in the garage. The garage was located about three miles from the county jail. The officers stayed at the roadblock until about 6:45 a. m.

At about 7:00 a. m. on August 31, 1973, Officer Robinson telephoned Officer Prince, an auto theft investigator with the Department of Public Safety stationed in New Braunfels. Officer Robinson during the course of the call told Officer Prince why he believed that the truck was stolen. While at the roadblock the following was determined about the appellant and the truck: the appellant had no driver’s license with him nor could any record of one be located; the appellant did not have any license receipts for the truck; the appellant could not give the name or address of the owner of the truck; the appellant said that he was going to San Antonio to pick up some furniture, but could give neither the name, address or phone number of his destination; the appellant said that he was traveling north of San Antonio because he was going to visit relatives in Austin, but could not give any names, addresses, or phone numbers of relatives for verification; the license plates were rusted where they were tied on with wire indicating that they had been previously bolted on to this or some other vehicle.

Officer Prince first saw the truck at about 8:15 a. m. on the morning of August 31. The officer testified that he knew that a vehicle identification number was located on the door of that particular model truck, and that he knew where another number was located on the frame; however, he followed what he considered normal procedure and first ran a registration check on the license plates to see if the license numbers matched the number on the door. At this point Officer Prince noticed that the number on the door had fresh paint underneath it. At about mid-morning of the same day, Officer Prince received an answer on the license registration check: the truck had not been reported stolen.

Officer Prince interviewed the appellant at about 9:00 a. m. at the courthouse. The appellant had paid his fines and was no longer in custody. The officer talked with the appellant at the door by the sheriff’s office which led to the parking lot. During this conversation, the appellant said that his name was “Maldon” and that the owner of the truck was a man named Pepi. Officer Prince ran an independent check on the driver’s license of “Raul Maldon”. The answer received from Austin was that there was no “Maldon”, but that there was a Raul Maldonado, and Austin proceeded to give the appellant’s arrest record. However, the department did not give the officer any information as to the appellant’s driver’s license. The appellant also said that he was traveling north of San Antonio on a trip to his relatives in Austin and that he planned to return to San Antonio to pick up some furniture. Again he could not supply any names or addresses in Austin or in San Antonio.

During the morning of the 31st, Officer Prince requested that the sheriff’s department of Hidalgo County visit the address of the truck’s registered owner, Jose Garcia. Officer Prince received a reply from the sheriff’s department in Mission at about 2:00 p. m. that there was such a man and an address, but that he was currently in Michigan.

The appellant was returned to jail at about noon. Officer Prince requested that the sheriff’s department hold the appellant until they could contact the owner of the truck. At that time, Officer Prince had not yet received the information from Hidalgo County that the owner was in Michigan.

Officer Prince went to San Antonio while waiting for a reply from Hidalgo County. Upon learning that the owner of the truck was in Michigan, he returned to New Braunfels with Officers Hierholzer and Wood of the Department of Public Safety and the Texas Rangers, respectively. The purpose of this second trip to the truck was to check the hidden identification numbers on the truck. This final investigation of the truck took place at about 3:00 or 3:30 p. m., August 31, 1973.

During this investigation, Officer Prince matched the vehicle identification number on the door with the police number under the hood and the confidential vehicle identification number on the frame. All of these numbers matched the numbers listed with the license plate records. However, Officer Prince noticed that the police number did not appear to be die-stamped together because the numbers were placed on the body of the truck in an uneven manner.

The truck was a Ford stake-bed or grain-bed truck with only three sides to the bed. When looking from the rear to the front of the truck, the officer could see completely into the bed. While walking around the truck, Officer Prince noticed that the depth of the bed was different on the outside than it was on the inside of the truck. The outside of the truck was green while the inside of the truck had recently been painted black. Upon noticing the difference in depth, Officer Prince crawled up into the bed of the truck and saw that there was a false front compartment. Marks on the freshly painted sidepanels led the officer to believe that the false front had been raised in the past.

Officer Prince brought the false compartment to the attention of the other officers. Together the officers loosened the nails holding down the plywood top and raised up the top. Under the plywood was a layer of plastic paper. They lifted up the paper and found what they believed to be marihuana. The officers returned to the courthouse at about 5:00 p. m. and charged the appellant with possession of marihuana. The record reflects that 650 packages of marihuana were found in the false compartment.

The legality of the search does not turn on the existence of probable cause to believe that the truck contained contraband, but the probable cause to believe that the truck was stolen. It makes no difference whether appellant was or was not under arrest at the time the search was made.

As stated by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), with respect to the search of a vehicle, it is not the validity of the arrest of the occupants that justifies a search of a vehicle, but the probable cause to believe that the contents or the status of the vehicle violates the law. The legality of the search of the truck does not depend upon the grounds of arrest against the appellant nor necessarily upon the probable cause to believe that the vehicle contained contraband.

Probable cause to believe that the object of a search violates the law or contains evidence of a crime is an essential element of any search. Whether a warrantless search is based upon probable cause depends upon the facts and circumstances of the particular case. The test is whether the person conducting the search or making the arrest has facts and circumstances within his knowledge or of which he has reasonably trustworthy information to warrant a reasonable and prudent man in the belief that a particular person has committed or is committing a crime and that such a search would produce evidence pertaining to a crime. Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974).

After the officers stopped the appellant’s truck on the highway and questioned him, they had probable cause to believe that the car was stolen: the appellant was unable to produce a valid driver’s license or any license receipts for the truck; the officers were unable to get any verification on the appellant’s driver’s license; the license plates on the truck appeared to have been previously on another vehicle; the appellant was unable to give the name of the owner of the truck with any certainty, nor was he able to give any address for the owner; the appellant was unable to give any names or addresses pertaining-to his destinations either in Austin or in San Antonio.

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the United States Supreme Court sanctioned a war-rantless search of an automobile at the police station subsequent to an arrest on the highway where there was probable cause to search the automobile on the highway. As in Chambers v. Maroney, supra, probable cause to think the vehicle searched was stolen still existed when the truck was taken into police custody and stored in the garage in New Braunfels. As in Gomez v. State, 470 S.W.2d 871 (Tex.Cr.App.1971), it was necessary in the present case to remove the truck from the highway in order to carry on the investigation of the truck in a less dangerous location. In the present case, the arresting officers were under orders to conduct a roadblock, the purpose of which was to capture escaped prisoners. The officers were justified in not being distracted by continuing the investigation of the appellant’s truck and needed to remove the truck away from the possible disruption at the roadblock. In any event, it was necessary to store the truck in a safe place while the appellant was in jail. The search of the truck was not invalid because the officers moved the truck to a garage for further investigation.

The officers would have been remiss in their duty in permitting appellant to drive the truck without a license.

In the past, this Court has upheld war-rantless searches where the removal of the vehicle to the police station and subsequent search were part of a “series of events constituting one continuous happening.” Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975). In the present case, the search of the false compartment was the culmination of a continuous effort on the part of Officers Robinson and Oldham and later Officer Prince to ascertain the ownership of the truck. The investigation was extended over a period of time because of the delay entailed in contacting the various law enforcement departments in San Antonio, Austin and Mission while trying to track down the owner of the license plates. The officers did not stray from their goal of locating the owner during the entire length of the transaction. We held that the search was part of a continuous happening and comes under Taylor v. State, supra, and Borner v. State, supra.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court summarized the warrant requirement of the Fourth Amendment as follows: “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, supra, at 357, 88 S.Ct. at 514. One such exception to the warrant requirement is the long-established exception for the search of vehicle which is readily capable of being moved along the highway. Carroll v. United States, supra; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Another exception is the exigent circumstances exception, Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. 1975. This case comes under both exceptions to the warrant requirement.

In Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972), this Court invalidated a search of an automobile following the arrest of its owner because no exigent circumstances existed which would have excused the failure to obtain a warrant to search the automobile. In Stoddard v. State, supra, the appellant had been arrested in his office and put in jail. After he was in custody, the police searched his car where it was parked some distance from the appellant’s office. There was no indication that Stoddard’s car was stolen.

Unlike Stoddard v. State, supra, this ease does present exigent circumstances excusing the officers from obtaining a search warrant for the search of the truck that appellant had been driving. Absent any showing of bad faith on the part of Officer Prince, the Comal County Sheriff’s Department could not detain the appellant in jail indefinitely without filing some charges against him. Upon his release from jail, the appellant would either have possession of the keys to the truck when his personal effects were returned to him or the keys would be in the truck at the garage (the record was unclear as to the location of the keys). At least during business hours when the garage was open to the public, the appellant would have had access to the private garage where the truck was stored. In addition, the report from Hidalgo County that the owner of the plates on the truck was in Michigan and was not available for immediate clarification of his relationship, if any, to the truck, made it all the more pressing for the officers to proceed with the cheek of all the vehicle identification numbers on the truck.

Beside the exigent circumstances exception to the warrant requirement, there is also the moving vehicle exception. Although the present ease does not involve the search of a car on the highway as did the landmark case of Carroll v. United States, supra, it does share many of the elements which led to the carving out of such an exception. As pointed out by Justice Blackmun in the recent Supreme Court case of Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), a search of an automobile is less intrusive than a search of a home, there is a lesser expectation of privacy in a motor vehicle because it is not a “residence or [a] repository of personal effects.” Cardwell v. Lewis, supra, at 590, 94 S.Ct. at 2469. The Court also noted that people riding in automobiles do not have much capacity for escaping public scrutiny since the contents and occupants of the vehicle are largely in plain view.

In Cardwell, supra, the appellant was convicted for murder based upon, among other things, the matching of paint scrapings and tire tread from his car with paint and tire marks found at the scene of the crime. A warrantless search was made of the exterior of the appellant’s car after the appellant’s arrest and some time after the police had probable cause to believe that such a search would yield evidence of the murder.

In Cardwell, supra, the police took paint scrapings from the bumper of the automobile and an imprint of the tire tread. Nothing in the interior of the car was searched. Similarly in the present case, the police did not search the interior of the vehicle where the appellant would have enjoyed a greater expectation of privacy. In this case, the police only looked for the vehicle identification numbers placed on the exterior of the truck and studied the bed of the truck which was only closed on three sides. The false compartment was virtually in plain view.

As was done with the case in Cardwell, supra; this case could be distinguished from Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), on the ground that the search in Coolidge, supra, necessitated the entry upon private property for the seizure of the vehicle which was searched while in this case no such invasion of private property was necessary because the truck was seized on the public highway.

The question remains of the scope of the search. The scope of any search is limited to the circumstances which made its initiation permissible. Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1972); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The search in the present case was initiated in order to find evidence which would indicate whether or not the truck was stolen. It was not unreasonable on the part of the officers to think that evidence possibly hidden in the false compartment would indicate whether or not the truck was stolen. The compartment could easily have held cans of paint used to change the color of the truck, or its previous license plates or other sets of plates to change the identity of the truck, or the compartment could have contained papers concerning the ownership of the truck. The search of the false compartment did not exceed the scope of the search initiated to determine whether or not the truck was stolen.

No error is shown. The judgment should be affirmed.

      . We note that none of this information could have contributed in the slightest to probable cause to believe either that appellant had committed any offense whatsoever or that the truck was stolen.

      . The record contains only hearsay testimony by several officers that appellant continually claimed that he had borrowed the truck from a friend. If true, this fact would suffice to give appellant a possessory interest in the truck and, thus, standing.

      . It should be noted that the search was not supported by probable cause to believe that the truck contained marihuana or any other contraband. Prince testified that he did not “see or observe or smell anything that gave . reason to believe that the truck was transporting marihuana or any form of narcotics.” Prince knew that appellant had no record of any drug arrest. And he testified that the appellant did nothing at any time to furnish a reasonable belief that he was in possession or had been in recent possession of any amount of drugs. Prince had only the circumstance of an irregularity in the back bed of the truck. The facts would hardly warrant a man of reasonable prudence in concluding that contraband was contained therein.
      The only probable cause that may have existed, and which we assume, was probable cause to believe that the truck was a stolen vehicle.

      . Hence, appellant’s second arrest, even if unlawful, could not mandate a reversal of his conviction. The reason is that neither testimony of this arrest nor any evidence obtained as a result of it was necessary to the judge’s determination that appellant was guilty of possession of marihuana. Because the inculpatory evidence was not seized in a search incident to the arrest, illegality of the arrest would not have tainted that evidence. Stiggers v. State, Tex.Cr.App., 506 S.W.2d 609; Gross v. State, Tex.Cr.App., 493 S.W.2d 791; Frazier v. State, Tex.Cr.App., 481 S.W.2d 857; Garcia v. State, Tex.Cr.App., 472 S.W.2d 784.
      Moreover, such cases as Borner v. State, Tex.Cr.App., 521 S.W.2d 852; Gomez v. State, Tex.Cr.App., 470 S.W.2d 871, and Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, cert. denied, 393 U.S. 916, 89 S.Ct. 241, 21 L.Ed.2d 201 (1968), are not involved. The relevant inquiry in such cases was whether the removal of an automobile and its subsequent search were part of a series of events constituting one continuous happening. That test in effect inquires only whether reasonable suspicions have gradually accumulated so as to constitute probable cause to arrest and render permissible as incident thereto a search of the arrestee’s vehicle. The test has no application where, as in the instant case, the search is not incident either to the initial arrest or to the subsequent arrest for a more serious offense. The test in any case can furnish no broader exception to the warrant requirement than that afforded by any search incident to a lawful arrest under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).


author: ROBERTS, Judge. DOUGLAS, Judge MORRISON, Judge

text:
    Manuel Gardenas GAMBOA, Appellant, v. The STATE of Texas, Appellee.
    No. 50020.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.
    Woody & Rosen, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Stu Stewart, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of murder with malice aforethought under Arts. 1256 and 1257, V.A. P.C. Appellant was tried before a jury and the jury assessed punishment at thirteen years’ imprisonment.

In this appeal, appellant complains of the refusal of the trial court to submit a charge on circumstantial evidence. Such a charge was timely requested in writing by appellant who also filed written objections and exceptions to the court’s charge complaining of the omission of the circumstantial evidence charge.

The evidence showed that appellant and his wife, Maria Gamboa, had an abrupt separation on June 14, 1969, and that she took the children and went to live with appellant’s sister-in-law, Minnie G. Gamboa, the deceased. Although the children subsequently returned to live with appellant, his wife remained with the family of the deceased. On June 30, 1969, appellant left Hermann Hospital without being discharged, where he had been receiving heavy medication for an old back injury. After a stop at the home of his sister, Jane Rivera, appellant went to the deceased’s home where he once more sought unsuccessfully to persuade his wife to return to him.

Appellant arrived at deceased’s house around 11:00 p. m., June 30. The evidence was conflicting, but there was some testimony that four of deceased’s children were asleep in the living room at the time. Deceased’s eldest child, Rosalinda, was awake in a darkened bedroom of the house. Jane Rivera arrived at deceased’s house shortly after appellant but left fifteen minutes later after “patting down” her brother and ascertaining that he was unarmed. Rivera testified that appellant was speaking softly and pleading with his wife to come back to him. Moments after Rivera left, Rosalinda Gamboa testified she heard four gunshots. She stepped quickly to a place in the dining room where she could see her uncle, appellant herein, placing a gun in his pocket. She could not see her mother from this position, nor could she remember if anyone beside her brothers and sisters, her mother, and appellant’s wife were in the living room at the time. She testified that appellant then ripped the telephone off the wall and left the house. In the living room, both Maria and Minnie Gamboa were found dead of gunshot wounds.

Around 11:30 p. m., appellant returned to the house of his sister, Jane Rivera, who noticed for the first time that appellant had a gun. Appellant gathered all his children and placed them in a truck he had stolen and departed for Colorado. He was apprehended a short time later.

At the trial, the witness Rosalinda. Gam-boa was unable to identify the .22 caliber pistol introduced into evidence as the pistol she saw her uncle placing in his pocket on the night of the shootings. She could say only that the pistol she saw her uncle placing in his pocket had a white handle and a black barrel, like the one in evidence, but that her mother also kept a similar-looking pistol in the house. The witness Rivera testified that if appellant had had a gun prior to 11:30 p. m. on the date in question, she would have noticed it. Appellant himself testified that the pistol in evidence resembled a pistol he had owned, but he could not be sure if it was the same one. Randy Sillivan, a ballistics expert, testified that the fatal bullets probably came from a .22, but that he had been unable to determine that the bullets had come from the weapon in evidence.

The evidence against appellant was thus circumstantial. While the circumstances adduced strongly suggested his guilt, there was no direct evidence of the factum pro-bandum. No one saw appellant fire the fatal shots. Nor was there direct evidence that the bullet which killed the deceased came from the weapon later taken from appellant. Under such circumstances, Texas law requires that a charge on circumstantial evidence be given. 4 Branch’s Ann. P.C., 2d ed., Sec. 2049, p. 357. The State contends, however, that the facts are in such close juxtaposition that they amount to direct evidence and therefore a charge on circumstantial evidence is not needed.

On the basis of the record before us, we do not think the facts were in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony obviating the need for a charge on circumstantial evidence. Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1973).

The judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction because the court did not instruct the jury that this was a case depending upon circumstantial evidence.

The court instructed the jury that before it could convict it must find beyond a reasonable doubt that appellant with malice aforethought unlawfully and voluntarily killed Minnie Gamboa with a gun. The court also instructed the jury “[ujnless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.”

The court charged the jury that “the defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in ease you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit him. You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given their testimony. . . . ”

In the last few years a charge on circumstantial evidence has been required by this Court more than ever before. Now it appears that the majority considers a circumstantial evidence charge sacrosanct unless an eyewitness testifies to every element of the case. Would the majority now hold in a murder case that unless an eyewitness testifies that he saw the bullet fired by a defendant hit the deceased a charge on circumstantial evidence must be given?

Jurors of today are usually educated. They are able to consider the evidence such as in this case without the judge having to tell them that no one saw appellant pull the trigger.

Unless the failure to give a charge would cause a different result, the error, if any, is harmless. Let us look to the testimony in this case to see if the giving of a charge on circumstantial evidence would have caused the jury to have reached a different result and found the appellant not guilty.

The victim alleged in the indictment was Minnie Gamboa, the wife of appellant’s brother. Maria Gamboa, appellant’s wife, was killed in the same room at the same time by three shots from a .22 caliber gun. Minnie Gamboa was talking over the telephone at the time she was shot. Appellant put a pistol in his pocket immediately after the last shot was fired. Two small children were sleeping in the room where the two women were killed. There was no evidence of a struggle on the part of the women. No weapon was found in the room.

Appellant and his wife, Maria, had five children. Minnie Gamboa and Maria and her children went to a dance and did not return until around two o’clock in the morning. Appellant and Maria argued about this and separated June 14, 1969. Maria and her children went to live with Minnie. A few days later, appellant, with Maria’s permission, took the children to live with him.

Prior to the shooting, appellant went to Hermann Hospital because of pain from old injuries to his back. On June 30, appellant, without being discharged, covered his face with a paper and left the hospital. He put padding and paper in his bed to make it appear that he was in it. A nurse saw him leaving and asked him to return to get a release. He refused. He went to his sister’s house and got his children and then with his niece and a nephew started to get ready for a trip to Colorado. His children stayed at the house and he went to the home of Minnie where Maria was staying.

Janie Rivera, appellant’s sister, was called to the house by Minnie. Janie arrived at about 10:55 p. m. Appellant was urging Maria to come back to him. She refused. Janie Rivera left to go to work a few minutes later. Rosalinda Gamboa, the then eleven-year-old daughter of Minnie, was awake in the bedroom waiting to take a bath. She heard appellant walking and talking to her Aunt Maria in the living room. She then heard a shot and immediately jumped up and ran to where she could see into the living room. On the way she heard several shots. Immediately after the shots were fired, she saw her Uncle Manuel, appellant, putting a gun in his pocket. Her mother was sitting in a chair. He then started to leave but he turned, came back, pulled the telephone cord and receiver loose and then left.

About six blocks away from the house, appellant robbed William Thompson of a truck at gun point. This was a McCane-Sondock, a burglar alarm company truck, equipped with a two-way radio. Appellant’s children arrived at Janie Rivera’s house in a taxicab just ahead of appellant. He took the children in the truck and said that he going to Colorado. Appellant ran a roadblock that officers had set up near Stafford. Officers pursued him and shot the tires of the truck. Appellant stopped and let all of the children go except one who was three years of age. He abandoned the truck near Sugar Land. A Dodge Dart belonging to T. C. Rosell, Jr., which was stolen in Sugar Land during the early morning hours of July 1, 1969, was recovered near the Rivera residence in Houston. Appellant returned to the Rivera home at about 4:00 a. m. and threatened Janie Flores, daughter of Mrs. Rivera, with a pistol. Janie Flores called the police. When appellant was arrested that night he had a fully loaded .22 caliber pistol and twenty-six rounds of ammunition.

Dr. Joseph A. Jachimczyk, chief medical examiner of Harris County whose qualifications were stipulated, testified that Minnie Gamboa and Maria Gamboa each died of three .22 caliber gunshot wounds to the head. He related that the shots in the head of 'Minnie Gamboa were fired at a distance of approximately four inches or less. The shots that killed Maria Gamboa were fired from a distance of about four inches to twenty inches.

The pistol taken from appellant at the time of his arrest was apparently an inexpensive or inferior type. Ballistics tests run on the slugs found in the house of the deceased were of little or no evidentiary value.

Appellant testified that he did not remember leaving the hospital and going to Minnie’s house on Sherman Street or seeing the truck. He stated that he did not remember anything until after he was locked up. There was no issue of self defense or accident. There is no showing that anyone but the two women who were killed, the small children and appellant were in the room when the fatal shots were fired.

Would the jury have reached a different result if the court had charged that no one saw appellant pull the trigger and that there was no direct evidence of the killing? The jury knew what the testimony was and did not have to be so told by the court. Jurors should not be considered stupid. The court instructed the jury that it must believe beyond a reasonable doubt that appellant shot and killed Minnie Gamboa. From the evidence in this case there is no reasonable probability that someone other than appellant killed Minnie Gamboa.

Where the facts are in such close juxtaposition as to amount to direct evidence, no charge on direct evidence has been required. See Eason v. State, 423 S.W.2d 315 (Tex.Cr.App.1968). Where facts are in such close relation to each other as to amount to direct evidence, no charge on circumstantial evidence is required. Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971).

When there is no reasonable suggestion that anyone else could have committed the murder of Minnie Gamboa at a distance of four inches from her head except appellant, why does the majority reverse this conviction?

The Legislature has provided this Court should not reverse a conviction because of errors in a court’s charge unless the error was harmful. See Articles 36.16 through 36.19, V.A.C.C.P. This Court should follow that mandate.

It should take at least something.of substance to reverse a conviction. Mark me dissenting to reversal on such a frivolous, far-fetched ground.

The judgment should be affirmed.

MORRISON, Judge

(dissenting).

The record as a whole, including an antecedent argument, presence of the appellant at the scene of the murder, possession of a gun by appellant immediately after shots were heard, and subsequent flight by appellant not mentioned in the majority opinion, shows that the facts in this case are of a positive character. At least, the facts and circumstances are of such a character as to place the appellant in such close proximity to the main fact as to render a charge on circumstantial evidence unnecessary. See Allen v. State, 36 Tex.Cr.R. 381, 37 S.W. 429.

I dissent to the reversal of this conviction.