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

text:
    Finis Weldon HOOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 49988.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.
    On Rehearing Feb. 18, 1976.
    Rehearing Denied March 17, 1976.

      Malcolm R. Sanders, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and Lawrence E. Thorne, III, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of obscene material with intent to distribute. The information alleged the offense occurred on May 28, 1973. Appellant was tried under old Penal Code Art. 527 in April, 1974, and punishment was assessed by the jury at a fine of $1,690.00.

The sufficiency of the evidence is not challenged, and the record reflects that a stipulation was entered into between appellant and the State that the films in question were obscene.

Appellant urges the court erred in admitting into evidence alleged obscene films that were illegally obtained from an unreasonable search and seizure.

The pertinent portion of the search warrant under which the films were seized recited that affiant was keeping “obscene motion picture film” in a certain described pickup with camper, and reads as follows:

“AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO-WIT: On this date during the past twelve hours I was notified by an informant whose identity must remain undisclosed for safety and security reasons, called me and stated that a white male in his sixty’s wearing a yellow shirt and yellow pants with grey receding hair, was in the downtown area trying to sell some obscene movies. I went downtown and found the subject getting into the above described pickup. I went back to my police unit and put out an attempt to locate on the truck. A uniform unit stopped the truck on Pt. Arthur Road for defective brake lights. Subject gave San Antonio address and was very nervous. He was brought to the police station and booked on the traffic charge. He had a notebook in his pocket and he tore some pages out and tried to eat them. The pages in the notebook discussed book stores, movie theatres and arcades and had some phone numbers. Checked the wanted file and found out he was wanted in Houston Texas for Pornography violation. He had a ring of keys in his possession when he was arrested but he managed to get rid of them on the way to the station. He has a metal box in the back of his truck with 2 huge locks on it and he refused us permission to look in the box. While inventorying his truck, a roll of 16 mm film was in the box. While inventorying his truck, a roll of 16 mm film was found in a silver canister in the camper of his truck. I have reason to believe my informant because during the past two months, my informant has given me information on several occasions and on two of offenses reported, arrests were made and contraband was seized. I personally observed the above described subject in the same area as the Cinema X Theatre and The Action Theatre.”

The two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), requires:

“The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was credible or his information reliable.”

Looking to the affidavit, as we must, in determining the reliability of the informer, we note the affiant recites “. . . during the past two months, my informant has given me information on several occasions and on two of offenses reported, arrests were made and contraband was seized.” We find that the affidavit furnishes sufficient underlying circumstances from which the magistrate could conclude that the informer’s information was reliable. Williams v. State, Tex.Cr.App., 476 S.W.2d 300; Heredia v. State, Tex.Cr.App., 468 S.W.2d 833 (rev’d. on other grounds); Hegdal v. State, Tex.Cr.App., 488 S.W.2d 782.

In determining if the magistrate was informed of underlying circumstances from which the informant concluded that appellant was selling obscene films, we note, as appellant points out, that no statement is made that informant saw obscene films in appellant’s pickup or that he heard appellant offer to sell such films. It is readily apparent, however, that the affidavit is not based solely on the hearsay statements of the informer, but contains assertions within affiant’s knowledge which lend credence to otherwise unsupported conclusions and apprise the magistrate that the informer’s story was not entirely out of the whole cloth. Gaston v. State, Tex.Cr.App., 440 S.W.2d 297; Williams v. State, supra. We find it unnecessary to recount all of the information within affiant’s knowledge recited in the affidavit, but note that it is extensive and detailed and sufficiently supports the informer’s conclusion that appellant possessed obscene films. We conclude that the search warrant was based on an affidavit which reflected probable cause for issuance of same.

While the films which were made the basis of the prosecution were seized in a search of a locked metal box in appellant’s vehicle pursuant to a search warrant, appellant complains of his warrantless arrest and search of his person. Appellant also urges that testimony of officers relative to what they saw in his pickup when they removed a dog therefrom prior to the issuance of the search warrant was inadmissible.

The record reflects appellant was arrested for driving a vehicle with a defective brake light. See Art. 6701d, Sec. 124, V.A. C.S. The officer who stopped appellant was authorized to arrest him without warrant. Article 6701d, Sec. 153, V.A.C.S. Incident to the arrest for the traffic violation, the officer was authorized to search appellant’s person. Merriweather v. State, Tex.Cr.App., 501 S.W.2d 887; Wallace v. State, Tex.Cr.App., 467 S.W.2d 608. A further search was conducted at the police station in which appellant was required to remove his socks and shoes. After appellant was arrested and prior to the search at the police station, the record reflects that appellant attempted to hide a ring of keys on his person and tore pages from a notebook in his possession and tried to eat them. The pages torn from the notebook contained information about “arcades, adult movies, theaters, addresses and such as that at various places throughout the state.” A ring of keys was found in one of appellant’s socks. We find that the officers’ search of appellant at the police station was justified in light of appellant’s actions following the initial arrest and search. The officers had a right to search appellant for weapons and items which might be used to effect escape from custody. See Merriweather v. State, supra; U. S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

The officers noted that appellant had a dog in the camper portion of his truck. When they entered the camper to remove the dog, they saw a roll of 16 millimeter film. According to Officer Waggoner, “the film was laying there where you could see down into the box without lifting the flap.” A stipulation was entered at trial that this film was not obscene. The officers acted properly in entering the camper section of the pickup to remove the dog. See Corbett v. State, Tex.Cr.App., 493 S.W.2d 940. The officers, having made a lawful entry of the camper, could testify relative to anything they observed that was in plain view. Jackson v. State, Tex.Cr.App., 489 S.W.2d 565; Alberti v. State, Tex.Cr.App., 495 S.W.2d 236. It was after the entry of the camper to remove the dog that the officers went before a magistrate and obtained the search warrant which resulted in the search of the locked box observed in the camper. As a result of this search, the films forming the basis of this prosecution were seized.

Appellant’s contention that Art. 527, V.A. P.C., in effect on the date in question, is unconstitutional in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, was answered adversely to appellant in West v. State, Tex.Cr.App., 514 S.W.2d 433.

Appellant urges several contentions which concern the overruling of appellant’s objections to the court’s charge.

Appellant advised the court that the motion he had filed for instructed verdict would constitute his objections to the court’s charge, and appellant was allowed to reurge the grounds asserted therein. Other than a claim that Art. 527, V.A.P.C. was unconstitutional, the objections were directed to the lawfulness of his arrest, search and seizure. Appellant’s objections contained therein have already been discussed and decided adversely to him.

Appellant complains of the issuance of the search warrant under which the films were seized without an adversary hearing before a magistrate.

The films in question were not being exhibited in a theater but were seized in a search of appellant’s camper after appellant was arrested. No contention is advanced that appellant was prohibited from showing the films, nor is it urged that appellant was denied a post-seizure adversary hearing in accordance with Sec. 8 of Art. 527, V.A.P.C. See West v. State, supra; Bryers v. State, Tex.Cr.App., 480 S.W.2d 712. No error is shown.

Lastly, appellant urges the court erred in allowing the introduction into evidence of the affidavit and search warrant over objection that same contained hearsay statements.

The recitals in a search warrant are hearsay and are not admissible for any purpose. Figueroa v. State, Tex.Cr.App., 473 S.W.2d 202 (see numerous cases cited therein).

Most of the recitals contained in the affidavit are statements of personal knowledge of the officer-affiant Waggoner. Officer Waggoner testified at trial, and the record reflects that the information set forth in the affidavit and warrant was either elicited by appellant or was introduced without objection except the statement of the informer that appellant was trying to sell obscene movies.

Robert C. Click testified that on the date in question he was operating the Action Theater in Beaumont, which showed hardcore pornographic films. On said date of May 28, 1973, appellant tried to sell him films of the “type I was running.” Appellant stipulated that the films seized were obscene. The record reflects 122 films of 8 MM color film, 5 small spools of 16 MM film, and 11 large spools of 16 MM film were recovered in the search of appellant’s van.

The evidence of appellant’s guilt was not only overwhelming, but undisputed. The only evidence offered by appellant related to the legality of the search and seizure. Under the circumstances, we find the error in admitting the affidavit and search warrant into evidence was harmless. Clay v. State, Tex.Cr.App., 518 S.W.2d 550; Holcomb v. State, Tex.Cr.App., 484 S.W.2d 929.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

ROBERTS, J., concurs in results.

ONION, P. J., and ODOM, J., dissent.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

Appellant’s conviction for possession of obscene material with intent to distribute was affirmed by this Court. This writer concurred in the result and Onion, P. J., and Odom, J., dissented without opinion. We granted appellant’s motion for rehearing in order to examine more closely the search question involved in this case.

The film which was the subject of this prosecution was seized pursuant to a search warrant. The affidavit supporting the search warrant sets out most of the relevant facts and reads as follows:

“AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO-WIT: On this date during the past twelve hours I was notified by an informant whose identity must remain undisclosed for safety and security reasons, called me and stated that a white male in his sixty’s wearing a yellow shirt and yellow pants with grey receding hair, was in the downtown area trying to sell some obscene movies. I went downtown and found the subject getting into the above described pickup. I went back to my police unit and put out an attempt to locate on the truck. A uniform unit stopped the truck on Pt. Arthur Road for defective brake lights. Subject gave San Antonio address and was very nervous. He was brought to the police station and booked on the traffic charge. He had a notebook in his pocket and he tore some pages out and tried to eat them. The pages in the notebook discussed book stores, movie theatres and arcades and had some phone numbers. Checked the wanted file and found •jout he was wanted in Houston, Texas for Pornography violation. He had a ring of keys in his possession when he was arrested but he managed to get rid of them on the way to the station. He has a metal box in the back of his truck with 2 huge locks on it and he refused us permission to look in the box. While inventorying his truck, a roll of 16 mm film was in the box. While inventorying his truck, a roll of 16 mm film was found in a silver canister in the camper of his truck. I have reason to believe my informant because during the past two months, my informant has given me information on several occasions and on two of offenses reported, arrests were made and contraband was seized. I personally observed the above described subject in the same area as the Cinema X Theatre and The Action Theatre.”

The sufficiency of this affidavit under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) was upheld in our per curiam opinion and is not under discussion here. Rather, it is the legality of appellant’s arrest and search on the brake lights offense which is the subject of this opinion.

The record reveals that the search of appellant’s person pursuant to that arrest produced notebook pages discussing book stores and movie theatres and a ring of keys hidden in appellant’s sock. Entry of the camper on the back of his pickup for the purpose of removing a dog revealed a roll of 16 mm film in a silver canister. As the affidavit indicates, these factors, coupled with the informant’s tip, were needed to establish probable cause for the issuance of the warrant. It is therefore necessary to establish the validity of the arrest and search on the brake lights charge in order to uphold the search warrant here.

It is well established that a thorough search of the person is justified if incident to a lawful custodial arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Wallace v. State, 467 S.W.2d 608 (Tex.Cr.App.1971). We need not decide if a custodial arrest was justified for this minor traffic violation, cf. Art. 6701d, Secs. 147, 148, and 153; Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1968), or if a custodial arrest violated due process or equal protection of the laws in this instance, cf. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) (concurring opinion of Stewart, J.), or if the search following the arrest was reasonable in its scope, cf. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968).

At the outset we are confronted with what appears to be a pretext arrest. A search incident to a pretext arrest is invalid. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932); Amador-Gonzalez v. United States, supra; Pruitt v. State, 389 S.W.2d 475 (Tex.Cr.App.1965), overruled on other grounds in Onofre v. State, 474 S.W.2d 699 (Tex.Cr.App.1972); Adair v. State, 427 S.W.2d 67 (Tex.Cr.App.1967) (dissenting opinions of Onion, J., and Morrison, J., and cases cited therein); Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973); Hall v. State, 488 S.W.2d 788 (Tex.Cr.App.1973).

The only evidence in the record that appellant’s brake lights were defective were the hearsay statements of Detective Wag-goner that appellant was stopped for that reason and booked on that charge. Wag-goner’s subsequent affidavit in support of the search warrant also made this allegation. However, the city attorney later dismissed charges on the traffic offense and a mechanic testified that the brake lights were not defective when he examined them the next day. The arresting officer, Detective Holt, did not testify, but he must have been aware of Waggoner’s “attempt to locate” radio bulletin prior to appellant’s arrest.

The State has the burden of proving the legality of a warrantless arrest or search. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975). As in Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975), the State here failed to put on the one witness who could provide the testimony needed to discharge its burden. See also Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972). Appellant has made out a pri-ma facie case of pretext arrest, and the only evidence refuting it is the hearsay testimony of Waggoner, which has no probative value at all. Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975). The conclusion is inescapable that appellant was arrested for the sole purpose of obtaining evidence to corroborate Waggoner’s anonymous informant. “An arrest may not be used as a pretext to search for evidence.” United States v. Lefkowitz, supra 285 U.S. at 467 and, 52 S.Ct. at 424.

Since the facts necessary to support the warrant were discovered as the result of a pretext arrest, the warrant should not have issued and the obscene film supporting appellant’s conviction could not have been used. It follows that appellant’s conviction cannot stand.

The motion for rehearing is granted, the affirmance is set aside and the judgment is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

I do not agree with footnote one in the majority opinion, and, eventually, this leads to a disagreement as to the disposition of this case. As I view the affidavit, the portions noted below were sufficient to authorize a search without a warrant. The informant’s personal knowledge that the appellant was trying to sell obscene movies together with the showing of his reliability and the officer’s surveillance of appellant were sufficient probable cause to authorize the arrest and search of the vehicle.

I do not agree with that portion of the majority opinion which concludes that the information received by the officer after the arrest was needed to establish probable cause for the issuance of the warrant. I therefore do not conclude as does the majority that the facts necessary to uphold the warrant were discovered as the result of the arrest.

Thus, Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968) and Pruitt v. State, Tex.Cr.App., 389 S.W.2d 475, have no application to the case at bar because in neither case was there prior information that any law had been violated.

I do not agree that this is a pretext arrest.

I respectfully dissent to the reversal of this conviction.

DOUGLAS, Judge

(dissenting).

The original opinion in this cause, prepared by Commissioner Davis, is correct.

Probable cause was stated in the affidavit for the search warrant. The majority does not discuss why it holds that such an arrest is based on a false pretext. This is apparently so because there is no evidence to support such a holding. The writer has always been under the impression that the appellate courts should not act as the fact finder instead of the jury or the trial judge. The trial judge had sufficient evidence before him to conclude that the officers had the right to arrest appellant for operating a motor vehicle with defective brake lights. But now a majority of this Court would be the trier of this fact, unseating the trial judge, and hold that the officers are not worthy of belief. The dismissal of the traffic cause does not add or detract anything from the right to arrest. When there is enough evidence to convict for a felony offense, why should the State waste the time and expense in prosecuting one for a misdemeanor traffic offense? The right to arrest is determined from the facts as they exist at the time of the apprehension, not at the time the prosecutors decide to prosecute or dismiss a case. There was sufficient probable cause for the arrest of the appellant and the search of the camper. The officers had been informed by a reliable informer that appellant was selling or attempting to sell obscene films. When they arrested him they saw him tear pages out of a notebook and try to eat them. The pages that he tore out had addresses of arcades, adult movie houses and theaters throughout the State. The information provided by the informer was borne out by this evidence. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, is in point.

In the instant case the informant gave Officer Waggoner a detailed description of appellant as well as his location. Each detail of the tip was corroborated by Officer Waggoner. Thus, this case is controlled by Draper v. United States, supra, and the cases that have followed it.

In United States v. Nieto, 510 F.2d 1118 (5th Cir. 1975), the Fifth Circuit Court wrote:

“. . . Information from a reliable informant that is corroborated by other matters within the participating officer’s knowledge can constitute sufficient probable cause to justify an arrest or search. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Summerville, 477 F.2d 393 (5th Cir. 1973). And this court has also held that ‘probable cause . . . can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest,’ when there is ‘some degree of communication between the two.’ Moreno-Vallejo v. United States, 414 F.2d 901, 904 (5th Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 76 (1970).”

An officer testified that appellant was under arrest for a traffic violation and for investigation for possession of obscene literature at the time. Appellant’s counsel stated: “We will agree that he was under arrest for a traffic violation.” Officers further related that appellant had a German Shepherd dog in the camper and that they had to unlock it to take the dog out so they could take it to the dog pound. When the officers opened the camper they could see the films.

From the above it can be seen that the officers had a right to arrest appellant for a traffic violation. When they opened the camper they could see films. They had probable cause even without a warrant to search.

The majority relies upon a case by the Supreme Court of the United States to reverse this conviction. The same majority relied upon Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, to reverse the case of White v. State, 521 S.W.2d 255 (Tex.Cr.App.1975). Later the Supreme Court held that Chambers v. Maroney authorized the search, contrary to the holding by the majority of this Court in White.

There is no reason to go further than the Supreme Court of the United States and reverse convictions on the grounds of illegal searches. See the dissenting opinions in the appeal to this Court in White v. State, supra.

The judgment should be affirmed.

      . In that opinion, it was agreed that the informant’s tip plus the affiant’s cursory observations downtown did not constitute sufficient probable cause for appellant’s arrest.

      . Such a bulletin afforded no probable cause for appellant’s arrest. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

      . “AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO-WIT: On this date during the past twelve hours I was notified by an informant whose identity must remain undisclosed for safety and security reasons, called me and stated that a white male in his sixty’s wearing a yellow shirt and yellow pants with gray receding hair, was in the downtown area trying to sell some obscene movies. I went downtown and found the subject getting into the above described pickup
      I have reason to believe my informant because during the past two months, my informant has given me information on several occasions and on two of offenses reported, arrests were made and contraband was seized. I personally observed the above described subject in the same area as the Cinema X Theatre and The Action Theatre.”

      . The purpose of the search in this case was clearly to discover the contraband, the possession of which is a crime. See Adair v. State, Tex.Cr.App., 427 S.W.2d 67, 68, Dissenting Opinion, Judge Onion, Footnote 1.

      . Rangel v. State, 444 S.W.2d 924 (Tex.Cr.App.1969); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970); Garcia v. State, 459 S.W.2d 839 (Tex.Cr.App.1970); Lucky v. State, 471 S.W.2d 81 (Tex.Cr.App.1971); Mottu v. State, 472 S.W.2d 522 (Tex.Cr.App.1971); Harris v. State, 486 S.W.2d 88 (Tex.Cr.App.1972); Dickhaut v. State, 493 S.W.2d 223 (Tex.Cr.App.1973); Jordan v. State, 504 S.W.2d 490 (Tex.Cr.App.1974); Houston v. State, 506 S.W.2d 907 (Tex.Cr.App.1974); Hull v. State, 510 S.W.2d 358 (Tex.Cr.App.1974); Rivas v. State, 506 S.W.2d 233 (Tex.Cr.App.1974); Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975); Keeble v. State, 506 S.W.2d 897 (Tex.Cr.App.1974).


source: Caselaw Access Project

author: MORRISON, Judge. ONION, Presiding Judge

license: Public Domain

text:
    Billy Wayne GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 50526.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.

      Mike McCollum, Dallas, court appointed on appeal, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm and Paul Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is attempted burglary; punishment, 10 years.

In his first two grounds of error, the appellant contends that the indictment is fundamentally defective in that it failed to allege the act which constitutes an attempt and failed to allege sufficient information upon which to prepare a defense.

The questioned portion of the indictment alleges that the appellant did then and there unlawfully:

“intentionally and knowingly and without the effective consent of Clyde E. Cumbie, hereinafter called complainant, the owner thereof, attempt to enter a building not then and there open to the public, and with intent to commit theft, to-wit: with intent then and there to unlawfully exercise control over the personal property of complainant, without the effective consent of complainant, the owner of said property, and with intent to deprive complainant of said property.”

There was no motion to quash the indictment. The function of a motion to quash is to call the trial court’s attention to a defect in the indictment that is not obvious on its face.

While the better practice would be to allege the act constituting the attempt, we do not conclude that the omission is fundamental error to require reversal in absence of a motion to quash. To the extent Fonville v. State, Tex.Cr.App., 62 S.W. 573 is in conflict, the same is overruled. Nor do we find that the failure to allege the act deprived the appellant of the opportunity to prepare a defense. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598.

In his third ground of error, appellant contends that he should have been given his requested charge on circumstantial evidence as to the issue of intent. When the intent of the actor is the only element not proved by direct evidence, a charge on circumstantial evidence is not necessary. Davis v. State, Tex.Cr.App., 516 S.W.2d 157; Sloan v. State, Tex.Cr.App., 515 S.W.2d 913.

Appellant in his final ground of error contends his evidence raised the lesser included offense of criminal mischief and that it was error for the court not to include it in the charge. There was no specially requested charge, nor was there any objection to the charge; therefore nothing is presented for review. Hoffman v. State, Tex.Cr.App., 514 S.W.2d 248; cf. Terry v. State, Tex.Cr.App., 517 S.W.2d 554.

The judgment is affirmed.

ONION, Presiding Judge

(dissenting).

This is an appeal from a conviction for attempted burglary, wherein the punishment was assessed at ten (10) years by the jury.

At the outset appellant complains the indictment is fatally defective in that it fails to allege a substantial element of the offense charged. The indictment, omitting the formal parts, alleges that the appellant “on or about the 28 day of August in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did then and there unlawfully intentionally and knowingly and without the effective consent of Clyde E. Cuxnbie, hereinafter called complainant, the owner thereof, attempt to enter a building not then and there open to the public, and with intent to commit theft, to-wit: with intent then and there to unlawfully exercise control over the personal property of complainant, without the effective consent of complainant, the owner of said property, and with intent to deprive complainant of said property.”

Appellant relies upon the provisions of V.T.C.A., Penal Code, Sec. 15.01(a) (Criminal Attempt), which reads:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

Under this statute the elements necessary to establish an offense are: (1) a person (an actor), (2) with specific intent to commit an offense, (3) does an act (amounting to more than mere preparation), (4) that tends, but fails, to effect the commission of the offense intended. See 1 Branch’s Ann.P.C., 3rd ed., p. 634.

Appellant argues that under the former Penal Code there were such specific attempt crimes as attempted abortion, attempted arson, attempted burglary, attempted rape, etc., and that the foregoing section replaces all these type statutes and provides a general attempt statute under which the attempt to commit any offense is an offense. He further urges that to be guilty of an attempted burglary under the new Code the actor (accused) must have a specific intent to commit a burglary and he must do an act, amounting to more than mere preparation, that tends, but fails, to effect the commission of the intended offense. He contends the' act involved must be alleged and that to merely allege “an attempt” only states a conclusion.

Under the former statute, Article 1402, Vernon’s Ann.P.C., 1925, and its predecessors, it was well established that an indictment for attempted burglary was fundamentally defective if it failed to allege the acts of the accused which showed his intent to commit the burglary but simply alleged the attempt as a conclusion. 10 Tex.Jur.2d, Burglary, Sec. 9, p. 170; Sec. 38, p. 194, 4 Branch’s Ann.P.C., Sec. 2549, p. 883.

In 12 C.J.S. Burglary § 43, p. 708, it is stated:

“An indictment for an attempt to commit burglary must not only allege the attempt and the intent, but also the overt acts relied on as constituting the attempt.” Ligon v. State, 25 Ga.App. 306, 103 S.E. 189, and Cooper v. State, 33 Ala.App. 407, 34 So.2d 188, are cited in the support of the foregoing statement. See also Wharton’s Criminal Procedure, 12 ed., Vol. 2 (Indictment and Information), p. 286.

In Fonville v. State, 62 S.W. 573 (Tex.Cr.App.1901), it was held that an attempted burglary indictment must state fully what the defendant did in the attempt to commit burglary and not merely state a conclusion so that it will appear to the court from the allegations that what the defendant did would constitute an attempt to commit burglary. The court noted in Fonville that the motion in arrest of judgment should have been granted as the indictment did not put the defendant on notice of the act or acts relied upon by the prosecution as indicating or constituting an attempt to commit burglary. There was no motion to quash the indictment in Fonville.

In Taubert v. State, 146 Tex.Cr.R. 582, 176 S.W.2d 955 (1944), it was pointed out that an indictment or information should charge acts or omissions thought to constitute the offense with sufficient particularity to advise the accused of the specific acts of misconduct charged, and a mere statement or conclusion is insufficient.

In Jones v. State, 53 Tex.Cr.R. 470, 110 S.W. 748 (1908), it was held that the act of the defendant in trying to break in the house was sufficiently alleged by an allegation that the attempt was “by attempting by force to raise a window in said house.” See also Curry v. State, 122 Tex.Cr.R. 218, 54 S.W.2d 89 (1932); Freeman v. State, 146 Tex.Cr.R. 236, 172 S.W.2d 309 (1943).

I conclude that the holding in Fonville v. State, supra, is applicable to the new statute [V.T.C.A., Penal Code, Sec. 15.01(a)], and that an indictment for attempted burglary is fundamentally defective where the attempt is only stated as a conclusion and it is not alleged what the defendant did in the attempt to commit burglary. When an essential part of the elements of the offense involves an act, amounting to more than mere preparation, that tends, but fails, to effect the commission of the offense intended, then that act should be alleged. While the instant indictment alleged the intent, the attempt was alleged only as a conclusion and the overt acts relied upon as constituting attempt were not alleged.

For the reasons stated, I would find that the indictment in the instant case is fundamentally defective and reverse the judgment and order the prosecution under this indictment dismissed.

The majority overrules Fonville v. State, supra, without any discussion whatsoever of the well established rule for indictments in attempted burglary cases or how the new Penal Code would call for a new and different result, merely stating that the defect in the indictment was not obvious on its face. The attempt is alleged in the indictment only as a conclusion and until today at least this was considered a fundamental defect. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), cited by the majority, made clear, however, that if the indictment does not allege an offense, any conviction based thereon is void. Since the indictment would be fundamentally defective under all previous holdings, it seems the bench and bar are entitled to more than the majority opinion has given them.

I dissent.

      . Under V.T.C.A., Penal Code, Sec. 15.01(c), the punishment for an offense under such section is one category lower than the offense “attempted . . ” at least where the offense attempted is above a felony of the third degree. Under Section 30.02 of the new Penal Code, burglary generally under such section is a felony of the second degree (see, however, Subsection (d) thereof). V.T. C.A., Penal Code, Sec. 12.34 (Third Degree Felony punishment) provides:
      “(a) An individual adjudged guilty of a felony of the third degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 10 years or less than 2 years.
      “(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $5,000.”

      . In connection with an attempted burglary charge the general attempt statute should be read with V.T.C.A., Penal Code, Sec. 30.-02.

      . Article 1402, supra, reads:
      “An ‘attempt’ is an endeavor to accomplish the crime of burglary carried beyond mere preparation, but falling short of the ultimate design in any part of it. Whoever shall attempt to commit burglary shall be confined in the penitentiary not less than two nor more than four years.”

      . The second count of the indictment in Fonville upon which conviction was had and which was held insufficient charged the defendant “did, at night, ... by force, threats, and fraud, attempt to break and enter a house there situate, and occupied by Mrs. Annie McBride, without the consent of the said Mrs. Annie McBride, and with the intent then and there, by force, threats, and fraud, to have carnal knowledge of said Mrs. Annie McBride, a woman then and there being in said house, without the consent of the said Mrs. Annie McBride,” etc.

      . Freeman v. State, supra, was overruled in Hill v. State, 521 S.W.2d 253, 255 (Tex.Cr.App.1975), only to the extent that it held that proof of a consummated burglary would not support a conviction for attempted burglary. See now also V.T.C.A., Penal Code, Sec. 15.01(b), to the same effect.

      . The suggested indictment form for attempted burglary in 1 Branch’s Ann.Penal Statutes, 3rd ed., p. 635, follows such rule for alleged violation of V.T.C.A., Penal Code, Sec. 15.01(a), but the form is no model for pleading.


author: GREEN, Commissioner.

text:
    Travis R. RAVEN, Appellant, v. The STATE of Texas, Appellee.
    No. 50227.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    Rehearing Denied March 17, 1976.
    Les Procter, Austin, for appellant.
    Robert O. Smith, Dist. Atty. and David A. Sheppard, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

On an indictment charging the felony offense of compelling prostitution, appellant was convicted of the misdemeanor offense of engaging in prostitution. Punishment was assessed at a fine of two hundred dollars.

Appellant’s sole ground of error reads: “The trial court committed reversible error by instructing the jury to consider the offense of engaging in prostitution because engaging in prostitution is not a lesser included offense of compelling prostitution.”

The indictment charged that on or about February 6, 1974, in Travis County, appellant and another “did then and there knowingly cause M.T.L., a person under the age of seventeen (17) years, to commit prostitution . . . .”

Thus, the indictment charged a violation of V.T.C.A. Penal Code, See. 43.05(a)(2).

In its charge the court, after applying the law of the felony offense of compelling prostitution to the evidence, and telling the jury that it should find appellant guilty of said offense if it so found beyond a reasonable doubt, further instructed that “if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of compelling prostitution and proceed to consider whether the defendant is guilty of the lesser included offense of engaging in prostitution

Appellant timely objected on the ground that engaging in prostitution “is not a lesser included offense of the charge laid in the indictment in this case, and same should be stricken from the court’s charge.” His objection was overruled.

Since a transcription of the court reporter’s notes of the evidence is not included in the appellate record, the issue on appeal is strictly the legal issue of whether, under the applicable statutes and the indictment, engaging in prostitution as provided by V.T.C.A. Penal Code, Sec. 43.02(a)(1), supra, can be a lesser included offense of compelling prostitution as that offense is defined by V.T.C.A. Penal Code, Sec. 43.05(a)(2), supra.

Art. 37.09, V.A.C.C.P., reads:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

In Day v. State, Tex.Cr.App., 532 S.W.2d 302, opinion on original submission delivered July 16, 1975, in holding that the offense of criminal trespass, V.T.C.A. Penal Code, Sec. 30.05, is a lesser included offense of burglary, V.T.C.A. Penal Code, Sec. 30.-02, under the provisions of Art. 37.09, supra, we demonstrated that each of the elements of criminal trespass “could be established by proof of the same facts necessary to prove the offense of burglary,” and that, with such proof, the requirements of Art. 37.09(1), supra, would be satisfied. On rehearing, opinion delivered February 4, 1976, we reaffirmed that holding, and after a thorough review of the history of Art. 37.09 as it was amended in 1973 we said:

“The careful reader will observe that each definition in Art. 37.09 is stated with reference to ‘the offense charged,’ and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive or reduces culpability as compared to the offense charged . . . whether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the ease.” The elements of the offense of compelling

prostitution as defined in Sec. 43.05(a)(2), supra, are (1) a person (2) knowingly (3) causes by any means (4) a person younger than 17 years (5) to commit prostitution. V.T.C.A. Penal Code, Sec. 43.01(2) provides that “ ‘prostitution’ means the offense defined in Section 43.02 of this code.”

The elements of the offense of engaging in prostitution as defined in Sec. 43.02(a)(1), supra, are (1) a person (2) knowingly (3) offers or agrees to engage or engages in sexual conduct (4) in return for a fee payable to the actor.

“Sexual conduct” is defined by V.T.C.A. Penal Code, Sec. 43.01(4) as including “deviate sexual intercourse, sexual contact, and sexual intercourse.”

V.T.C.A. Penal Code, Sec. 7.01, “Parties to Offenses,” 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.”
Section 7.02 of the Code provides’ in part:
“Criminal Responsibility for Conduct of Another
“(a) A person is criminally responsible for an offense committed by the conduct of another if:
“(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; or . . .”

Applying Code Sections 7.01 and 7.02 to the offense of engaging in prostitution, Sec. 43.02(a)(1), supra, we find that all of the elements of said offense are included within the elements of the offense of compelling prostitution, Sec. 43.05(a)(2). Both offenses involve prostitution as that term is defined in Sec. 43.02(a)(1), supra. See Sec. 43.01(2), supra. In addition to the act of prostitution, the indictment, in line with Sec. 43.-05(a)(2), alleges the element of (1) causing (2) a person younger than 17 years of age to commit the offense. If the proof fails as to either causation or the age of the person, or both, the accused should be acquitted of the felony offense.

It is next to be considered whether the accused would be a party to the act of prostitution if the act of prostitution as defined by Sec. 43.02(a)(1) were proved but either or both of the above mentioned elements of causation and age were not. If the evidence established that the appellant acting with intent to promote or assist the commission of the offense solicited, encouraged, directed, aided or attempted to aid the female to commit the act of prostitution, he would be criminally responsible for the act of prostitution which she did commit. See Sec. 7.02(a)(2), supra. In such event, he would clearly be a party to the offense under the provisions of Sec. 7.01(a), supra.

We conclude that the offense of engaging in prostitution may be a lesser included offense of compelling prostitution.

The judgment is affirmed.

Opinion approved by the Court. ”

DOUGLAS, J., not participating.

      . See V.T.C.A. Penal Code, Sec. 43.05(a)(2) which under the title “Compelling Prostitution” reads:
      “(a) A person commits an offense if he knowingly:

      “(2) causes by any means a person younger than 17 years to commit prostitution.”

      . See V.T.C.A. Penal Code, Sec. 43.02(a)(1) which under the title “Prostitution” reads:
      “(a) A person commits an offense if he knowingly:
      “(1) offers to engage, agrees to engage, or engages in sexual conduct in return for a fee payable to the actor; or


author: MORRISON, Judge. ROBERTS, Judge ONION, Presiding Judge

text:
    Joe Melvin HARPER, Appellant, v. The STATE of Texas, Appellee.
    No. 50533.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    Rehearing Denied March 17, 1976.
    Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, Daniel P. Garrigan and H. Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is unauthorized use of a motor vehicle; the punishment, enhanced by two prior felony convictions, life.

Appellant was stopped while driving a 1971 Volkswagen after making a sudden turn while approaching a driver’s license check point. He did not have a license, and the arresting officer proceeded to make a check on the license number of the car. The car license was registered as belonging on a Toyota. The officer asked appellant to whom the car belonged, and appellant stated that the car belonged to his sister, Mary Richardson. He was subsequently arrested for “theft”.

In his first two grounds of error appellant contends that the statement he made to the arresting officer was admitted in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article 38.22, V.A.C.C.P.

The owner of the car testified that he had not given appellant or anyone else permission to use his car. He had left the car in a repair shop approximately a month earlier for work to be done on it. The mechanic who had been given temporary control of the car testified that he had not given anyone permission to take the car from his car lot. Appellant did not testify or offer any defensive theory. The evidence of appellant’s guilt for intentionally operating a motor vehicle without the owner’s consent was overwhelming.

While the statement was improperly admitted, we conclude that it was harmless error beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Hampton v. State, Tex.Cr.App., 511 S.W.2d 1; Bridger v. State, Tex.Cr.App., 503 S.W.2d 801; Whitehead v. State, Tex.Cr.App., 450 S.W.2d 72.

In his third and fourth grounds of error, appellant contends the trial court erred in failing to instruct the jury as to Mary Richardson’s ownership of the car in question.

Appellant contends that his statement that the ear belonged to Mary Richardson raised an issue as to the ownership of the car by Mary Richardson. Appellant submitted to the court a requested charge on the issue of her ownership of the car. The requested charge was refused by the court. Appellant then objected to the charge given to the jury.

The cases cited by appellant are not in point because there was no evidence that Mary Richardson had given appellant her consent to use the car. The indictment alleged that appellant “knowingly and intentionally operated a motor vehicle owned by William H. Dinkins, Jr., without his effective consent.”

The State proved that Dinkins was the owner of the motor vehicle. The State further proved that appellant operated the motor vehicle knowingly and intentionally without the effective consent of Dinkins. There was no evidence to raise the issue that appellant had received the consent of Mary Richardson to operate the motor vehicle in question.

In Bonner v. State, Tex.Cr.App., 426 S.W.2d 869, this Court reversed a conviction on similar facts; however, in that case the defendant testified that he did not know the car was stolen and that he had been given the car to use by his friend, James. This was enough to raise an issue as to his defensive theory and to require the court to charge the jury on the same. By contrast, in the instant case, appellant did not testify and offered no evidence on the issue of consent to operate the motor vehicle.

Appellant’s third and fourth grounds of error are overruled.

Appellant’s fifth ground of error complains of the failure of the court to grant his requested charge on punishment.

Appellant was indicted under the habitual offender statute for having twice previously been convicted of felony offenses. The appellant requested a charge that could have allowed the jury to find that he had been convicted of one prior felony, but not the other. The charge that was given was more favorable to appellant than the requested charge would have been. Under the charge given, if the jury found appellant had committed one of the prior felonies, but not the other, they would have to find simply not true to the allegation of two prior felonies. The error, if any, was harmless to the appellant.

The judgment is affirmed.

ROBERTS, Judge

(concurring).

I concur in the result reached in this case, but disagree with the majority’s assessment of appellant’s first two grounds of error. They conclude that appellant’s remarks about the ownership of the car he was driving was a confession erroneously admitted in violation of Art. 38.22, V.A.C.C.P., and the Constitution of the United States, but nevertheless rendered harmless by the other “overwhelming” evidence in the case.

Appellant’s statement that the car belonged to his sister was in no way inculpato-ry and did not constitute a confession under our statutes, in my opinion. Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973) (dissenting opinion); Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); Martinez v. State, 498 S.W.2d 938 (Tex.Cr.App.1973) (concurring opinion). It was not the product of oppressive or accusatory police interrogation. I agree with Commissioner Archie Brown, whose original draft of this opinion read as follows:

“Although the appellant was not free to leave he was not under arrest and the investigation had not yet centered on the appellant in any respect save his failure to have a driver’s license in his possession. Under these circumstances the inquiry of the officer as to who the car belonged to after the appellant failed to produce a driver’s license did not involve a custodial interrogation. See Generally Annotation Police Interrogation — Traffic Offenses, 25 A.L.R.3rd 1076. We further note that the appellant’s answer that the car belonged to his sister can hardly be characterized as a confession or even an inculpa-tory statement in the context in which it was given.
“Appellant contends that even if his statement was admissible under Miranda it was none the less error to admit it under Art. 38.22, V.A.C.C.P.
“The statement that the car belonged to the appellant’s sister was not a confession nor did it lead to any evidence that tended to reflect on the appellant’s guilt. The statement was a simple exculpatory statement and Art. 38.22, V.A.C.C.P., was not applicable.”

I therefore concur in the affirmance of this conviction.

ODOM, J., joins in this opinion.

ONION, Presiding Judge

(dissenting).

In his first two grounds of error appellant contends a statement made by him to an officer while he was under arrest resulted from custodial interrogation. He urges that both Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, Vernon’s Ann.C.C.P. were violated.

The opinion prepared for the court by Judge Morrison recognizes the error, but would hold the error harmless in view of the overwhelming evidence of guilt. I wish I could concur that the error was harmless, but I cannot, and I cannot agree with the concurring opinion that the statement was “in no way inculpatory” and that while appellant was not free to go he was not under arrest.

A short resumé of the facts is necessary.

William Dinkins, owner of a 1971 red Volkswagen, testified on December 18, 1973, he took his vehicle to a Volkswagen dealer in Dallas for a tune-up and repair and turned the car over to Cliff Autrey, a service adviser. Autrey testified that it was discovered later that afternoon the car had been taken from the dealer’s lot. He related he did not give anyone permission to take the car from the lot. There was no witness to the taking.

Dallas Police Officer Jack Swafford testified about 2 p. m. on January 12, 1974, almost a month after the alleged offense, he was assisting a driver’s license checkpoint by insuring that motorists did not avoid the checkpoint. He related he saw a 1971 red Volkswagen approach the checkpoint and go almost through the intersection and then make a sudden left turn at a higher than normal speed. Swafford testified he stepped out of his police vehicle and signaled the car to stop, which it did. The appellant was identified as the driver of the car and was unable to produce a driver’s license or any identification, though he gave his name. The officer noticed the car had only one rear license plate, and he stepped to his patrol vehicle and checked on the registration and was informed by the dispatcher that the license number was registered to a Toyota rather than a Volkswagen. After five or ten minutes, he returned to the Volkswagen and asked the appellant to whom the car belonged and, over objection, was permitted to testify that appellant replied the car belonged to his sister, Mary Richardson. The officer testified that at the time of the questioning the appellant was not free to leave, that he was under investigation for a criminal offense — having no driver’s license. While other officers who had arrived were taking appellant to the address where he claimed he lived, Officer Swafford observed the vehicle identification number, normally visible through the windshield of the car, had been pried off. After appellant’s return and it was learned he had pointed out a vacant house as his address, appellant was arrested for “theft.”

The owner’s manual and his address were found in the car. Dinkins was called and recovered his vehicle.

At the time of the complained of statement, the appellant was obviously under arrest for failure to exhibit a driver’s license in violation of Article 6687b, Sec. 13, Vernon’s Ann.C.S. He was not free to leave. Upon his return to the Volkswagen, the officer was also aware that the vehicle bore license plates registered to a different motor vehicle, which was a violation of Article 6675b-7, Vernon’s Ann.C.S., although he testified he had not yet determined whether he would charge anyone with “theft” of the vehicle.

Custodial interrogation was defined in Miranda as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” See also Ancira v. State, 516 S.W.2d 924 (Tex.Cr.App.1974). And such custodial interrogation is not limited to police station house interrogation. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

This court in Ancira, supra, further cited with approval United States v. Phelps, 443 F.2d 246 (5th Cir. 1971), where it was stated:

“ . . . (W)e have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant.” Miranda v. Arizona, 384 U.S. at p. 444, 86 S.Ct. at p. 1602.

Further, it is provided in Article 15.22, Vernon’s Ann.C.C.P.:

“A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.”

In the instant case there clearly was probable cause to arrest for failure to exhibit a driver’s license, which the officer did. In addition, there was probable cause to arrest when it was discovered the Volkswagen bore a license plate issued to a Toyota, and the officer repeatedly testified that at the time of his questioning the appellant was not free to go. While the officer had not yet decided to arrest anyone for “theft” or unauthorized use of a motor vehicle, it is clear that such investigation, under the circumstances, had begun to focus upon the appellant and he had already been placed under restraint.

No warnings having been given, I would conclude that appellant’s statement as to the ownership of the automobile given during custodial interrogation was not admissible in light of Miranda, nor under the provisions of Article 38.22, Vernon’s Ann.C.C.P. The fact that the appellant was under arrest for other offenses and not free to go distinguishes the instant case from a general investigation into an unsolved crime [see Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), and cases there cited] as well as those cases upholding the admissibility of statements made within the ambit of a general on-the-scene investigatory process. See Tilley v. State, 462 S.W.2d 594 (Tex.Cr.App.1971); Higgins v. State, 473 S.W.2d 493 (Tex.Cr.App.1971); Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975). And it is likewise distinguishable from those cases where the individual was not under arrest when the statements were made. See Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975); Graham v. State, 486 S.W.2d 92 (Tex.Cr.App.1972).

Further, it is noted that the oral inculpa-tory statement admitted was not within any of the exceptions pertaining to oral confessions or statements within the ambit of Article 38.22, Vernon’s Ann.C.C.P. Although the statement was not in the mode of a classical confession, it would never have been offered by the State unless it tended to show his guilt — that he had lied about the ownership of the car. Under our time honored interpretation of our confession statute, such statement was not admissible as evidence. See Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973); Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971).

As stated in Dover v. State, 81 Tex.Cr.R. 545, 197 S.W. 192 (1917):

“The purpose and effect of this statute is to prevent the prosecution from using against the accused the testimony of the officer having him under arrest to a verbal statement made by the accused which the state seeks to use to prove his guilt.” (Emphasis Supplied) See also Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163 (1931).

In the instant case there were no witnesses to the actual taking. The most damaging testimony to the appellant was that he was in possession of the vehicle bearing the wrong license plates almost a month after the taking. In order to bolster its case, the State offered the complained of testimony to show that in addition to possession he lied to the officer as to the ownership of the car. I cannot agree that the error in admitting the statement made under arrest was harmless error beyond a reasonable doubt because of other evidence of guilt which was overwhelming under the circumstances presented. It is interesting to note that not a single case cited in support of such holding involved a violation of Miranda or Article 38.22, supra.

I dissent.

      . In Potter v. State, 481 S.W.2d 101 (Tex.Cr.App.1972), at footnote # 8, we held that when an officer knew an automobile had license plates registered to another vehicle he was in possession of reasonably trustworthy information which would lead a man of reasonable caution and prudence to believe a crime was being committed.


author: DALLY, Commissioner.

text:
    Otis Arden WEBB, Appellant, v. The STATE of Texas, Appellee.
    No. 50849.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.

      Ronald L. Walker, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of escape from custody while under indictment for a felony; punishment was assessed at imprisonment for 3 years. The offense was committed April 21, 1973.

We are met at the outset by appellant’s contention that he should be allowed to represent himself on appeal and not be required to accept the representation of counsel appointed to appeal this conviction. The appellant was represented in the trial court by appointed counsel. On January 2, 1975, the day appellant was sentenced, the same attorney was appointed to represent the appellant on appeal. On June 16, 1975, counsel filed a brief seriously urging two grounds of error for the reversal of the judgment. On August 20, 1975, appellant filed in this Court papers denominated “Application For Writ of Mandamus,” by which he requested that this Court direct the trial judge to grant his motion to dismiss counsel of record and allow him to represent himself on appeal. On August 21, 1975, the appellate record was filed in this Court. On September 29,1975, appellant filed a pro se motion denominated “Motion To Strike,” in which he requested that he be allowed to represent himself on appeal, and that the brief filed on his behalf by counsel be stricken and withdrawn from consideration in this appeal.

It is firmly established that the Fourteenth Amendment to the United States Constitution extends to the states as a matter of due process the Sixth Amendment provision that in all criminal prosecutions the accused shall enjoy the right to the assistance of counsel for his defense. The right to the assistance of counsel is applicable to both the trial [Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970); Ex parte Hope, 374 S.W.2d 441 (Tex.Cr.App.1964)] and the appeal [Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Ex parte Coleman, 455 S.W.2d 209 (Tex.Cr.App.1970); Ex parte Gordon, 439 S.W.2d 354 (Tex.Cr.App.1969); Ex parte Marshall, 445 S.W.2d 212 (Tex.Cr.App.1969)] of a criminal case. The contention before us presents the question of whether an accused may resist the appointment of counsel and instead proceed to conduct his own appeal. On June 30, 1975, after the appellate brief had been filed by counsel and before the appellant filed his pro se “Motion To Strike,” the United States Supreme Court handed down its decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). That case holds that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Noting as they did in Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1943), that the Sixth Amendment right to the assistance of counsel implicitly embodies a “correlative right to dispense with a lawyer’s help,” the Court stated the following:

“The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” 95 S.Ct. 2525, at 2541.

Faretta asserted his right to conduct his own defense at trial; however, since the Sixth Amendment right to counsel is applicable to both trial and appeal, it would follow that the correlative right to reject the assistance of counsel would be equally applicable to both the trial and the appeal of a criminal case. We discern no meaningful distinction between conducting a defense at trial and prosecuting an appeal which would prevent the application of the Faretta rationale to the case of an appellant who wished to reject representation by counsel and .instead represent himself on appeal.

It has long been held in this State that a trial court may not force an accused to accept an attorney if he wishes to waive representation and defend himself. Woods v. State, 152 Tex.Cr.R. 525, 215 S.W.2d 334 (1948); Brignon v. State, 399 S.W.2d 810 (Tex.Cr.App.1966); Jennings v. State, 135 Tex.Cr.R. 670, 122 S.W.2d 639 (Tex.Cr.App.1938); Phillips v. State, 450 S.W.2d 650 (Tex.Cr.App.1970); Article 1.14, V.A.C.C.P. Cf. Carr v. State, 475 S.W.2d 755 (Tex.Cr.App.1972); Wiley v. State, 431 S.W.2d 550 (Tex.Cr.App.1968). On the other hand, it has also been held that an accused does not have the right to be both represented by counsel and also propound his own questions to witnesses and make jury argument in his own behalf. Leahy v. State, 111 Tex.Cr.R. 570, 13 S.W.2d 874 (1928); Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968); Roberson v. State, 513 S.W.2d 572 (Tex.Cr.App.1974); Ballard v. State, 514 S.W.2d 267 (Tex.Cr.App.1974). Further, an accused’s right to represent himself or select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Thompson v. State, 447 S.W.2d 920 (Tex.Cr.App.1969); Estrada v. State, 406 S.W.2d 448 (Tex.Cr.App.1966). Thus, an accused may not wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he may retain other counsel. Keys v. State, 486 S.W.2d 958 (Tex.Cr.App.1972); Stovall v. State, 480 S.W.2d 223 (Tex.Cr.App.1972); Miller v. State, 479 S.W.2d 670 (Tex.Cr.App.1972); Brown v. State, 464 S.W.2d 134 (Tex.Cr.App.1971).

We hold here that the right of an accused to reject the services of counsel and instead represent himself extends beyond trial into the appellate process. However, while we hold that an accused has the right to prosecute his own appeal, it is clear that he does not have a correlative right, exercisable on demand, to appear pro se before this Court and present oral arguments. See, Tooke v. State, 23 Tex.App. 10, 3 S.W. 782 (1889); Leahy v. State, supra; Chick v. State, 161 Tex.Cr.R. 450, 278 S.W.2d 140 (Tex.Cr.App.1955). Article I, Section 10 of the Texas Constitution provides that an accused has the right to be “heard by himself or counsel, or both;” however, in reference to that language, Tooke v. State, supra, declared that:

“The language of Section 10 shows that the intention was to declare rights pertaining to the trial before a jury or court where the charge was being investigated on the introduction of evidence.
* * * * * *
“We do not think that any such right [to appear personally before this Court] is even contemplated, much less guaranteed, by the constitution and laws of this state; . . . ” 3 S.W. 782, at 783, 784.

In Chick v. State, supra, the appellant, who at the time of his appeal was incarcerated in the penitentiary, demanded that he be allowed to appear personally before the Court in order to argue his case; in response, the Court issued the following order which was incorporated in its opinion:

“The constitutional right to be heard in person has reference exclusively to trial courts and does not mean that the defendant has a right to be brought personally before the Court of Criminal Appeals. Tooke v. State, 23 Tex.App. 10, 3 S.W. 782; Cooley’s Constitutional Limitations, 4th Ed. 412.
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“The punishment assessed against appellant, as well as the fact that he is an inmate of the penitentiary under a prior conviction, will prevent his personal appearance before this Court, and he will not be granted the right to personally present oral argument.”

Of course, this is not to say that there are no circumstances in which an appellant would be allowed to pro se present oral arguments before this Court. In Leahy v. State, supra, the Court noted merely that there is no absolute right to appear personally before the appellate court:

“Within a year previous to this writing, two men convicted of crime have personally appeared before this appellate court and argued the merits of their several appeals, this to show that this court holds that, where there is no imperative right to be granted upon the capricious demand of one convicted or accused, still there may arise cases when it would become proper to permit the personal appearance before the appellate court of the accused.” 13 S.W.2d 874, at 884.

See also Article 44.03, V.A.C.C.P., footnote # 4, supra.

When an accused makes known his desire to represent himself, the court should take care to ascertain that he fully understands the consequences of waiving his right to representation of counsel and proceeding to represent himself. Faretta v. California, supra, suggested that:

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits.
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“Although a defendant need not himself have ‘the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.’ ” 95 S.Ct. 2525, at 2541.

The trial court should therefore admonish an accused who desires to represent himself regarding the wisdom and practical consequences of that choice.

It is well settled that an accused may knowingly and voluntarily waive his right to counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Smith v. State, 513 S.W.2d 586 (Tex.Cr.App.1974); King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Sanchez v. State, 454 S.W.2d 210 (Tex.Cr.App.1970); Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975). While it would be most desirable for the record to contain a written waiver of counsel executed by the accused, there is no absolute requirement that waiver of right to counsel be effected by a written instrument. See Gallegos v. State, 425 S.W.2d 648 (Tex.Cr.App.1968); Ex parte Ross, supra. In any event, the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself.

Having concluded that an accused has the right to reject representation by counsel and instead represent himself, we must turn now to the procedural aspects of a case wherein an appellant desires to prosecute his own appeal without the assistance of counsel. It is incumbent upon an accused to clearly and unequivocally inform the trial court of his desire to prosecute his appeal without the aid of counsel. Regardless of the point in the appellate process at which an appellant chooses to assert his right of self-representation, he will be required to comply with all relevant rules of appellate procedure set forth in our Code of Criminal Procedure. The right of self-representation is not a license to capriciously upset the appellate timetable or to thwart the orderly and fair administration of justice.

The record before us does not reflect any instance in which the appellant expressed dissatisfaction with the representation of his appointed counsel; the record does not reflect that appellant clearly and unequivocally informed the trial court of his desire to dispense with the aid of counsel and represent himself on appeal. In various motions and correspondence the appellant has alleged a great number of things concerning his attempts to have counsel dismissed so that he might proceed to represent himself; none of the allegations contained therein are properly before us for review. The record does not reflect that the appellant made any effort to have the various motions, correspondence and alleged orders of the trial court filed and made a part of the record on appeal before said record was transmitted to this Court. We note also that the motions filed by appellant in this Court were filed long after his appointed counsel had filed an appellate brief on his behalf. We therefore decline at this time to rule on appellant’s various pro se motions. The brief filed by appointed counsel on appellant’s behalf is properly before us for review and we shall now address the contentions contained therein.

Appellant contends that the court erred in overruling his motion to quash the indictment; appellant asserts that the indictment returned against him was never presented in open court by a grand jury and recorded upon the minutes of the proceedings of the court. Article 20.22, V.A.C.C.P., provides:

“The fact of a presentment of indictment in open court by a grand jury shall be entered upon the minutes of the court, noting briefly the style of the criminal action and the file number of the indictment, but omitting the name of the defendant, unless he is in custody or under bond.”

Appellant moved to quash the indictment, alleging that the indictment was marked Cause Number 31,927, which cause number was in fact a murder indictment against another person; all papers in appellant’s file, other than the indictment, were marked Cause Number 31,928. At a hearing on the matter, the State called Barbara Preston, a clerk in the Jefferson County District Clerk’s office; she testified that her duties, or the duties of someone under her supervision, encompassed the notation of numbers upon indictments returned by the grand jury. Preston stated that the cause number of the indictment for escape while under indictment for a felony returned against the appellant was 31,928; in her opinion, the notation of 31,927 on the indictment in appellant’s file was merely a clerical error; she further noted that there was a return in the file which indicated that the appellant had been served a copy of the indictment against him while he was in jail; the number on the return was 31,928.

At the end of the hearing the trial court made a finding that the number 31,927 which appeared on the indictment was a clerical error; he entered a nunc pro tunc order to have the record reflect that the grand jury returned indictment number 31,-928, escape while under indictment for a felony, against the appellant.

In English v. State, 18 S.W. 678 (Tex.Cr.App.1892), the transcript which accompanied the papers on a change of venue stated the grand jury returned into open court an indictment marked “No. 172;” however, the indictment itself and various other papers were marked “No. 154;” the defendant specially excepted to the indictment on the basis of former Code of Criminal Procedure Article 415; the special exception was overruled. The case was reversed and remanded because there was “no record of the fact that the indictment whose file number was 154 had ever been presented in open court by the grand jury.” English v. State, supra, at 679. However, the court indicated that the discrepancy could have been obviated had the court below made findings regarding which file number was correct and amended the record to show the proper file number.

“There is no evidence in the transcript that the grand jury ever returned or presented the indictment whose file number was 154.
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“If in fact No. 154 was the proper bill, instead of No. 172, then the records of Jones county should have shown that fact, and the entry upon the minutes was a mistake. If the grand jury actually returned the indictment, and its true file number was 172 instead of No. 154, then it was equally necessary that the record should have been amended to show that fact.” English v. State, supra, at 679.

In the case before us the trial court heard evidence which showed that the indictment returned against the appellant was number 31,928, rather than 31,927 (as the indictment was marked); the record was corrected to reflect that the grand jury returned indictment number 31,928 against the appellant. There has been no violation of Article 20.22, Y.A.C.C.P. This ground of error is overruled.

Appellant next contests the sufficiency of the evidence, asserting that there is no evidence of his intent to commit the offense of escape; this is a circumstantial evidence case and the jury was duly charged in that regard.

The evidence shows that on Saturday, April 21, 1973, the appellant and four other trusties were painting offices on the sixth floor of the Jefferson County Courthouse. James Lee, the jailer in charge of the paint detail, testified that each of the prisoners was assigned to paint a different office and that he moved from office to office checking on their progress. He stated that pursuant to requests from the prisoners he had opened a window in each office approximately six or eight inches; the window in the office in which the appellant had been painting had a screw-lock device which, when tightened, prevented the window from opening or closing beyond the point at which it had been set; Lee further stated that he had tightened the screw-lock on the window in the office appellant was painting. At approximately 3:00 p. m., when Lee checked the office where the appellant had been painting, he discovered that the appellant was not there; he stated that only one or two minutes had elapsed since he had last seen the appellant at work in the office. Lee noticed that the window he had opened six or eight inches had been opened to its maximum width; he looked out the window and observed that the gravel on the fourth floor roof had been disturbed by someone apparently landing on it feet first; however, he did not see the appellant. A short time later Lieutenant Jim Sibert of the Jefferson County Sheriff’s Department found the appellant lying on his side on the third floor roof; when approached, the appellant stated, “I’m not going anywhere, I broke my leg.”

We hold that the evidence, though circumstantial, is sufficient to support the jury’s verdict. This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ONION, P. J., concurs in the result.

      . But see footnote # 46 in Faretta, where the Court indicated that:
      “ . . .a State may — even over objection by the accused — appoint a ‘standby counsel’ to aid the accused if and when <•’accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-represeatation is necessary.” 95 S.Ct. 2525, at 2541.
      And see Wiggins v. State, 520 S.W.2d 780 (Tex.Cr.App.1975).

      . However, a patient trial judge may allow both counsel and the accused to jointly participate in the case.

      . A trial court is not obligated to search for an attorney who meets with the approval of the accused. Viges v. State, 508 S.W.2d 76 (Tex.Cr.App.1974); Gleffe v. State, 501 S.W.2d 672 (Tex.Cr.App.1973); Smith v. State, 493 S.W.2d 154 (Tex.Cr.App.1973); Rogers v. State, 488 S.W.2d 833 (Tex.Cr.App.1973); Perry v. State, 464 S.W.2d 660 (Tex.Cr.App.1971). The accused carries the burden of proving that he is entitled to a change of counsel. King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974); Gleffe v. State, supra; Williams v. State, 493 S.W.2d 863 (Tex.Cr.App.1973); Smith v. State, 493 S.W.2d 154 (Tex.Cr.App.1973).

      .See also Art. 1.05, Y.A.C.C.P.

      . Article 44.03, V.A.C.C.P., provides:
      “The defendant need not be personally present upon the hearing of his cause in the Court of Criminal Appeals, but if not in jail, he may appear in person.” (Emphasis added.)

      . It was pointed out in Faretta that:
      “ . . . whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” 95 S.Ct. 2525, at 2541, footnote # 46.

      . It must be kept in mind that the need for clarity in the record is directly related to the fact that courts will indulge every reasonable presumption against the waiver of a constitutional right. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

      . See and compare the colloquy between the court and the accused in Davis v. State, 398 S.W.2d 940 (Tex.Cr.App.1966). Also see Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970), where the Court quoted from Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), as follows:
      “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel, but intelligently and understandingly rejected the offer. Anything less is not waiver.”

      . See generally, Article 40.09, V.A.C.C.P.

      . It was noted in Faretta v. California, supra, that:
      “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” 95 S.Ct. 2525, at 2541, footnote # 46.
      See also, Thompson v. State, supra; Estrada v. State, supra.

      . In appellant’s “Motion To Strike” are excerpts from purported orders issued by the trial court. In one alleged order, dated June 17, 1975, appellant was advised that his motion for dismissal of counsel had been denied. In another alleged order dated September 6, 1975, the trial court informed the appellant that counsel already appointed would remain counsel on appeal.

      .In Faretta v. California, supra, the record contained a “preliminary ruling” of the trial judge, which ruling accepted the defendant’s waiver of assistance of counsel. Several weeks thereafter, but still prior to trial, the judge held a hearing, the transcription of which was made a part of the record, to inquire into the defendant’s ability to conduct his own defense. At the conclusion of the hearing the judge ruled that the defendant had not made an intelligent and knowing waiver of his right to the assistance of counsel and that he had no constitutional right to conduct his own defense. The judge accordingly reversed his earlier ruling and appointed the public defender to represent the defendant.
      In contrast, there is not in the record before this Court one instance in which the appellant voiced to the trial court his desire to dispense with the aid of counsel and instead represent himself. The various motions filed in this Court by the appellant find no support in the record.

      . Substantially the same as Article 20.22, Y.A.C.C.P.