author: DALLY, Judge. ODOM, Judge, PHILLIPS, Judge, ROBERTS, Judge, ONION, Presiding Judge,

text:
    Henry Earl MOON, Appellant, v. The STATE of Texas, Appellee.
    No. 54352.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 4, 1978.
    Ealy A. Bennett, Moncie Rasmus, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Gerard Guerinot, Asst. Dist. Attys., Houston, for the State.
   OPINION ON THE STATE’S MOTION FOR REHEARING

DALLY, Judge.

The majority of the Court now adopts for its opinion the dissenting opinion on original submission. The “straw man” argument presented, the assumptions made, and the discussions concerning the voluntar-iness of the plea, in the opinion concurring in part and dissenting in part, are wholly irrelevant. The record reflects that the appellant was carefully admonished concerning his guilty plea and that his constitutional rights were fully protected, but in view of the opinion concurring in part and dissenting in part a portion of the record will be incorporated in an appendix to this opinion. This portion of the record shows the appellant was fully and completely admonished and that he was accorded due process.

The State’s Motion for Rehearing is granted; the judgment is affirmed.

ODOM, Judge,

dissenting.

Judge Carl Dally, a commissioner for this Court, submitted a proposed opinion affirming this conviction. I adopt his opinion as my dissent.

“The appellant asserts that the evidence is insufficient to sustain his conviction for murder and his plea of guilty should have been withdrawn and a plea of not guilty should have been entered for him by the trial court. Although the appellant made a judicial confession sufficient to sustain the conviction for murder, additional evidence, which was not withdrawn, clearly raises the issue of self-defense and voluntary manslaughter. Therefore, the only question presented for review is whether the appellant’s plea of guilty should have been withdrawn by the court and a plea of not guilty entered.

“In a long line of authorities this Court has held that when the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required on its own motion to withdraw the defendant’s guilty plea or nolo contendere plea and enter a not guilty plea for the defendant. E. G. Harris v. State [76 Tex.Cr.R. 126], 172 S.W. 975 (Tex.Cr.App.1915); Edwards v. State [134 Tex.Cr.R. 153], 114 S.W.2d 572 (Tex.Cr.App.1938); Navarro v. State [141 Tex.Cr.R. 196], 147 S.W.2d 1081 (Tex.Cr.App.1941); Rayson v. State [160 Tex.Cr.R. 103], 267 S.W.2d 153 (Tex.Cr.App.1954); Fite v. State [163 Tex.Cr.R. 279], 290 S.W.2d 897 (Tex.Cr.App.1956); Richardson v. State [164 Tex.Cr.R. 500], 300 S.W.2d 83 (Tex.Cr.App.1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969); Hays [Hayes] v. State, 484 S.W .2d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1974); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, [548] S.W.2d [908] ([Tex.Cr.App.] No. 54065, 4/6/77). This rule has been recognized and applied even when a jury has been waived and the plea is before the court without a jury. Burks v. State [145 Tex.Cr.R. 15], 165 S.W.2d 460 (Tex.Cr.App.1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976).

“Prior to January 1, 1966, the effective date of the 1965 Code of Criminal Procedure, the rule was properly applied when the jury had been waived and a plea of guilty entered before the court as well as when a plea of guilty had been entered before a jury. Prior to the effective date of the 1965 Code of Criminal Procedure, a defendant could not waive a jury and enter a plea of not guilty before the court. Article 11, V.A.C.C.P. 1925. If the defendant waived a jury trial and entered a plea of guilty before the court and it became necessary for the court to withdraw the defendant’s plea of guilty, the court was required to impanel a jury to hear the not guilty plea. This is explained in the opinion in Burks v. State [145 Tex.Cr.R. 15], 165 S.W.2d 460 (Tex.Cr.App.1942).

“The 1965 Code of Criminal Procedure provides that a defendant may waive a jury trial and enter a plea of not guilty before the court in all except capital cases. Articles 1.13 and 1.14, V.A.C.C.P. There now seems to be no valid reason for the court to withdraw the guilty plea and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. It. is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. It would serve no purpose to withdraw the plea of guilty and enter a not guilty plea. Those cases in which this Court has reached a different result are overruled to the extent they conflict with the opinion in this case.”

The judgment should be affirmed.

DOUGLAS, J., joins this dissent.

APPENDIX

THE COURT: All right, sir, you are Henry Earl Moon?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Moon, in Cause No. 230,232 it is alleged by an indictment that reads: “In the name and by authority of the State of Texas, the Grand Jury of Harris County, State of Texas, duly organized at the May term, 1975, of the 176th District Court of said county, in said court, at said term, do present in the County of Harris and the State of Texas, one Henry Earl Moon, hereafter referred to as the Defendant, heretofore on or about June the 15th, 1975, did then and there intentionally and knowingly cause the death of Theodore Thomas Kelly, Jr. by stabbing and cutting him with a knife.

“Against the peace and dignity of the State.” Signed Foreman of the Grand Jury.

Sir, to this indictment, how do you plead? Guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: Sir, let me ask you this: As to all of these offenses, the indictment that the Court read, as well as the other two, are you pleading guilty, because you are guilty and not because of any promises, not because of any fear, not because of any persuasion on the part of your attorney, the district attorney, your friends or relatives, or any delusive hope or idea that you would have a better chance of getting a pardon or parole? But are you pleading guilty, strictly because you are guilty; for none of the reasons enumerated or outlined or any other reason, except the fact that you are guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Sir?

THE DEFENDANT: Yes, sir.

THE COURT: You are pleading guilty, because you are guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Not because of any other reason?

THE DEFENDANT: Yes, sir.

THE COURT: Sir, do you understand your right of a trial by jury?

THE DEFENDANT: Yes, sir.

THE COURT: Do you want a trial by jury in any one of these three cases?

THE DEFENDANT: Yes, sir.

THE COURT: You do want a trial by jury?

THE DEFENDANT: No, sir.

THE COURT: Well, now, you said yes, sir, and now you say no, sir. You understand you can have a trial by jury, or you can waive the trial by jury and proceed before the Court without the benefit of a jury.

What is your desire?

THE DEFENDANT: No, sir.

THE COURT: No, sir, what?

THE DEFENDANT: No jury.

THE COURT: No jury. You want to proceed and waive the jury and proceed before the Court; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. You understand that the penalty for the offense of murder, as you have pled guilty to, may be incarceration — that’s locked up — in the Texas Department of Corrections — that’s the penitentiary — for a period of not less than five years nor more than ninety-nine, or for life.

Do you understand the penalty for that offense?

THE DEFENDANT: Yes, sir.

THE COURT: You understand that, in this case, the district attorney is not making any recommendation. The Court is going to — as I understand from your attorneys, they want the Court to secure a presentence investigation, to hear evidence concerning the alleged murder and take into consideration the offense reports and stipulations there will be in this case, and from that evidence, for the Court to make its determination as to the penalty to be assessed.

Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Is that your agreement and your understanding?

THE DEFENDANT: Yes, sir.

THE COURT: Now, you are represented by Mr. Rasmus?

THE DEFENDANT: Yes, sir.

THE COURT: And what is your name?

MR. BENNETT: Ealy Bennett, Your Honor.

THE COURT: Bennett, that’s right.

And by Mr. Bennett, both of whom are with you today. Have they been employed by you, or were they appointed by the Court?

THE DEFENDANT: Employed.

THE COURT: Are you satisfied with both of them as your attorney?

THE DEFENDANT: Yes, sir.

THE COURT: Have you had ample opportunity to counsel with them and to advise with them, so that they are familiar with the circumstances concerning the alleged offenses and the incidents leading up to and that transpired in the commission of the offense, as well as your arrest?

THE DEFENDANT: Yes, sir.

THE COURT: Have they had ample opportunity to counsel with you and to find out everything that you knew about the case?

THE DEFENDANT: Yes, sir.

THE COURT: And do you have good sense?

THE DEFENDANT: Yes, sir.

THE COURT: Nobody ever said you were crazy, except in jest? Nobody ever said you were crazy; did they?

THE DEFENDANT: No, sir.

THE COURT: You feel that you are competent to stand trial at this time?

THE DEFENDANT: Yes, sir.

THE COURT: Now, you have filed with the Court several instruments; one of which is a stipulation of evidence, wherein you acknowledge that you understand you have a right to be confronted by your accusers and you and your attorney have the right to cross examine the witnesses. And you state you want to waive that right. Is this correct?

THE DEFENDANT: Yes, sir.

THE COURT: And you further state that you are agreeable to and consent to the oral stipulation of evidence, as well as to the introduction of affidavits, written statements of the witnesses and other documentary evidence, including this stipulation itself, wherein you acknowledge as being true all of the allegations set out in the indictment alleging the offense of murder. Is that your agreement, your stipulation and your understanding?

THE DEFENDANT: Yes, sir.

THE COURT: And you understand that, along with this stipulation, there is a waiver of a trial by jury? Is that your signature?

THE DEFENDANT: Yes, sir.

THE COURT: And likewise there is attached hereto numerous reports, offense reports and a motion for probation.

You understand that the district attorney is not recommending probation. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: You understand, to the contrary, that they are asking that you be given hard time. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And you understand that there is a voluminous amount of reports and_ statements and various other instruments attached to the stipulation of evidence in which you state, I understand, that that’s agreeable for the Court to take into consideration as evidence in this case; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Now, I don’t know what has been told you, but I am telling you that the district attorney is not recommending probation. And you understand, of course, that no one else has any authority to tell you that the Judge is going to give you probation, to get you to plead guilty. You understand the Court takes murder as a serious offense?

THE DEFENDANT: Yes, sir.

THE COURT: And until I hear the evidence and until I read the stipulations and all of the records that are attached to it and until such time as I can have a presentence investigation made, I certainly will not be in a position to assess any penalty. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: This is your signature on a waiver of a trial by jury?

THE DEFENDANT: Yes, sir.

THE COURT: In this you have got here, you are asking that the jury assess the punishment.

MR. RASMUS: Judge, I think that was filed prior to making an agreement in this matter. I think I filed all of those documents.

THE COURT: I have got a paper here in which you have asked the Court, upon your plea of guilty, — well, you have it styled a Defense motion at the time of entering a plea of not guilty. And this was in anticipation—

MR. RASMUS: Of trial.

THE COURT: And does he understand that you are withdrawing and asking the Court to assess the penalty in this regard?

MR. RASMUS: I have explained that to him and his family.

THE COURT: Do I understand this, Mr. Moon, that even though you have filed here a request that the jury assess the punishment, that is not your desire; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: All right, Mr. Rasmus, how long have you been representing the Defendant?

MR. RASMUS: Judge, I have been representing him, I would say, for the past year and a half.

THE COURT: And have you had ample opportunity to see him, to counsel with him, to advise with him?

MR. RASMUS: Definitely, Judge.

THE COURT: Are you satisfied that he is sane?

MR. RASMUS: Yes, sir.

THE COURT: You are satisfied that he is competent to stand trial?

MR. RASMUS: Yes, sir.

THE COURT: Do you know of any reason why I shouldn’t accept his plea of guilty?

MR. RASMUS: At this time I do not, Your Honor.

THE COURT: And, Mr. Bennett, how long have you been representing the Defendant?

MR. BENNETT: Basically, Your Honor, about three months.

THE COURT: Have you had an opportunity to counsel and to advise with him?

MR. BENNETT: Yes, sir, Your Honor, I have.

THE COURT: Are you satisfied that he is sane?

MR. BENNETT: Yes, sir, Your Honor.

THE COURT: You are satisfied that he is competent to stand trial?

MR. BENNETT: Yes, sir, Your Honor.

THE COURT: Satisfied that he understands all of the rights that he is entitled to and the rights, particularly, that he is waiving? He is waiving a number of rights, the right to be confronted by his accusers,—

MR. BENNETT: Yes, sir, Your Honor.

THE COURT: —and the right to cross examine the witnesses and the right to have a jury trial. Does he understand he has these rights?

MR. BENNETT: Yes, sir, Your Honor.

THE COURT: You feel that he is freely and voluntarily waiving all those rights?

MR. BENNETT: Yes, sir, Your Honor.

THE COURT: And he is acknowledging that it is agreeable upon the Court accepting his plea of guilty, that this testimony will be by virtue of stipulations, by written statements which ordinarily might be inadmissible by virtue of some of them being hearsay and various other things, but that he is acknowledging in the stipulations' that they are a part of the stipulations to be entered into the record, for the Court to take into consideration in assessing his penalty?

MR. BENNETT: Yes, sir, Your Honor.

THE COURT: And the same thing is true as to the ordering of the presentence investigation, which I understand both Mr. Rasmus and yourself, as well as Mr. Moon, are asking the Court to accept his plea of guilty and then to reset the matter for the purpose of securing a presentence investigation. Is this your understanding?

MR. BENNETT: Yes, sir.

THE COURT: Is this your understanding?

MR. RASMUS.: That is correct, Your Honor.

THE COURT: And this is your desire?

MR. MOON: Yes, sir.

THE COURT: All right, the Court will accept your plea of guilty in all three cases.

(State’s Exhibit No. 1 was marked for identification purposes by the court reporter.)

MR. GUERINOT: Mr. Moon, let me show you what’s been marked as State’s Exhibit No. 1, Cause No. 230,232, which states that on June the 15th, 1975, in Harris County, Texas, you did intentionally and knowingly cause the death of Theodore Thomas Kelly, Jr. by stabbing him with a knife. Is that your signature on that instrument?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: Are all those facts true and correct?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: You realize that you are judicially confessing to the felony offense of murder?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: And have you had an opportunity to discuss all of this stipulation, the waiver of a trial by jury and all of the attachments to this stipulation; that is, the autopsy report, the offense report, your statement that you made to the officers and the statements of the other witnesses?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: Is that your signature which appears on this waiver of a trial by jury in a felony less than capital in Cause No. 230,232, wherein you state you wish to waive your constitutional right to a trial by jury and have the Court hear the evidence in this case?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: That’s your signature?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: And that is your desire, to give up your constitutional right to a trial by jury?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: You realize you are waiving that right and asking the Court to hear the evidence in this case and to assess the punishment?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: It is also your agreement to introduce into evidence, along with these two documents, the formal stipulation of evidence, the waiver of trial by jury, all of these attachments; that is, the autopsy report and the offense report, pictures, drawings, diagrams, statements of all the witnesses.

THE DEFENDANT: Yes, sir.

MR. GUERINOT: Have you discussed this with your attorney fully?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: All of these documents that are in here? And is it your agreement and your understanding they are to be a part of this record for the purposes of not only your plea of guilty, but the sentence to be assessed?

THE DEFENDANT: Yes, sir.

MR. GUERINOT: Your Honor, at this time the State would offer into evidence State’s Exhibit No. 1: The stipulation of evidence, the waiver of trial by jury, signed by the Defendant, Mr. Rasmus and myself, the autopsy report which is attached to the stipulation of evidence and the offense report which contains all of the details concerning the murder, the diagrams, the statements of Mr. Moon, the statements of Freddy Lee Williams, Kenneth Celestine and numerous other notations which are made in the file.

THE COURT: All right, sir. Mr. Moon, stand up, please. Do I understand it is agreeable with the Defendant that the exhibits and stipulations be entered?

MR. RASMUS: It is, Your Honor.

THE COURT: And by the Defendant? THE DEFENDANT: Yes, sir.

THE COURT: And by Mr. Bennett? MR. BENNETT: Yes, sir.

THE COURT: All right, sir, the Court will order the exhibits and stipulations filed of record.

Is it my understanding there is no recommendation?

MR. GUERINOT: There is no recommendation as to the murder.

PHILLIPS, Judge,

concurring.

Although not crystal clear, it is apparent that the doctrine requiring a trial court to sua sponte withdraw a guilty plea when evidence was adduced that either made evident the defendant’s innocence or reasonably and fairly raised an issue as to his guilt was rooted upon the proposition that the trial court was vested only with the authority to resolve legal questions. The resolution of factual disputes was solely within the province of the jury prior to the 1965 codification of our criminal procedure. From the perspective of this Court, I cannot perceive that this case establishes any precedent of significant practical value. The reason for this conclusion is twofold. First, Article 44.02, V.A.C.C.P., as recently amended, effectively forecloses our review of the great majority of convictions obtained by way of a plea of guilty. Thus, whether the trial court abused its discretion in failing to withdraw a plea of guilty, should the prior rule have been continued, would seldom reach us. Second, were we to require that the guilty plea be withdrawn and a not guilty plea entered, our standard of review (in a light most favorable to the verdict) requires, for our purposes, only that some evidence be introduced on each element of the offense.

The United States Supreme Court has decided that the United States Constitution does not prevent the conviction of a defendant on a plea of guilty who simultaneously asserts his innocence. Alford v. North Carolina, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). It is also clear that this Court has abdicated from the position expressed in Garcia v. State, 237 S.W. 279, that “The court is required to exercise great care in preventing the improvident entry of a plea of guilty . . . .” This is evident from the rulings of this Court which have held that a judicial confession couched in the same terms as the indictment is sufficient evidence to support a plea of guilty for purposes of Article 1.15, V.A.C.C.P. This retreat in principle has apparently been approved by the Texas Legislature in its decision to restrict appeals from pleas of guilty. See Article 44.02, V.A.C.C.P.

As a corollary to the presumption that in a trial before the court the judge will disregard any inadmissible evidence in reaching a decision on factual issues, the majority holds that the plea of guilty will have no material effect on the neutral and detached position the trial judge holds as arbiter of fact and law. I, too, have every confidence in the fairness of our trial judges, but also realize the heavy burdens they are forced to work under. Despite this burden and the demands of extrajudicial obligations taken on by this State’s judicial officers, I commend the suggestion raised in my brother Roberts’ opinion that whenever evidence is presented during the course of a guilty plea that makes the innocence of the accused evident or reasonably and fairly raises the issue, a more detailed inquiry be pursued. The reason for this is that had there been a plea bargain and previous arrangement to enter a plea of guilty, a part of that agreement should have been to foreclose the development of any defensive issues upon the entry of a guilty plea. When such evidence is raised, it may indicate a breakdown in communications between attorney and client and State. It might also be an indication that the defendant has not been adequately advised of the law as it relates to the facts of his case. This is a constitutional prerequisite to a voluntary and knowing plea of guilty. See McCarthy v. U. S., 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Although it is true that the admonishments required under Article 26.13, V.A. C.C.P., were adequately given in the ease at bar and are, as a general matter, adequately given in all guilty plea contexts, the trial judge is indeed the presiding officer of the trial and the one most responsible for seeing to it that due process is accorded each defendant that appears before him. Given today’s decision and the recent enactment of Article 44.02, V.A.C.C.P., the implementation of these suggestions and procedures is left solely within the province of the trial court.

Since the procedural underpinnings for the doctrine requiring the sua sponte withdrawal of a guilty plea under the circumstances discussed in these opinions have been removed with the enactment of Articles 1.13,1.14, and 1.15, V.A.C.C.P., I concur with the majority’s opinion to overrule those decisions arising subsequent to their enactment which failed to discuss this principle. I also concur in the result.

I.

ROBERTS, Judge,

concurring in part and dissenting in part.

I agree that the judgment should be affirmed. On March 31, 1976, appellant pleaded guilty and received careful admonishments from the trial court. See Art. 26.13, Vernon’s Ann.C.C.P. The court then found him guilty but abated the case for a pre-sentence investigation and also to allow appellant to prepare and present evidence on the issue of punishment.

On June 3, 1976, the court reconvened the case to hear evidence on punishment. During this hearing, testimony was presented which, quite clearly, raised the issue of self-defense. I would hold that because the trial judge had already found the appellant guilty, the issue was raised too late to require the judge to withdraw appellant’s plea.

II.

However, I do not agree with the majority holding which eliminates the requirement that the trial court withdraw the plea of guilty of an accused wherever the evidence fairly and reasonably brings his guilt into question in a hearing before the court. This holding is dicta in the form of an advisory opinion and unnecessary to the decision of the case. Faced with such a sweeping change in our established law, I would reject the majority’s broad holding and hold instead that whenever the evidence raises a question of the defendant’s innocence the trial court must — at the very least — stop the hearing and determine whether the plea is voluntary and whether the accused is aware of conflict between his plea of guilty and the evidence presented.

III.

The majority opinion rests on three basic assumptions. The first of these, stated in the opinion, is that the trial judge will fairly consider the evidence presented, even though some of that evidence is in plain conflict with the defendant’s plea of guilty. I have no general quarrel with the even-handedness and fair-mindedness of our State’s trial judges; however, I believe that the rule which the majority abolishes is not concerned with mere evidentiary questions, but is instead a reflection of this Court’s concern for the principles of due process as guaranteed by our State and Federal Constitutions. When a question arises as to the voluntariness of a plea of guilty, the sufficiency of the evidence to support that plea takes a position of distinctly secondary importance; simply put, due process — and the rights which it embodies in this context — comes first.

By its broad-sweeping new rule, the majority allows trial judges to ignore their constitutional duty to inquire carefully into the voluntariness of each guilty plea. Although one recent Supreme Court decision held that a trial judge may accept a plea of guilty despite the defendant’s protestation of innocence, the Court also made it clear that in any guilty plea the trial judge may accept the plea only after making a careful determination that the plea is knowing and voluntary. North Carolina v. Alford, 400 U.S. 25, 32, 38, n. 11, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), relying, inter alia, on Brady v. U. S. 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

The holding in Alford, which upheld the validity of that State court guilty plea, was dependent upon a finding by the Supreme Court that the plea was knowing and voluntary and supported by ample evidence of guilt.

IY.

The Court’s decision in Alford also serves to refute what I believe to be the second, albeit unstated, assumption contained in the majority opinion: that the trial judge is merely an umpire, nothing more than a caller of balls and strikes. I cannot agree with this conclusion. The trial judge is the presiding officer of the trial, and it is his duty above all to see that justice under law is not thwarted. Certainly he must remain impartial, but he is nonetheless the principal public official whose obligation it is in a criminal ease to see that “all individuals are tried and sentenced in accordance with law.” Ex Parte Curtis, 568 S.W.2d 363, 367 (Tex.Cr.App.1978). As such, he must intrude himself into the guilty plea hearing when the voluntariness of the plea comes into question. See Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Henderson v. Morgan, supra (note 3); Boykin v. Alabama, supra (note 3).

V.

The majority’s final assumption, not stated but certainly woven into the fabric of the opinion, is that because the accused is represented by counsel his rights will be adequately represented and defended. See Brady v. U. S., supra at 748-749, n. 6, 90 S.Ct. 1463.

In this regard, I am aware that my dispute with the majority puts me in the position of advocating an intrusion by the trial judge into the relationship between the accused and his attorney. In most cases, that relationship — and the privileges and responsibilities it carries with it — should not be infringed upon. However, a guilty plea is a special case, an exception to the general rule, because in a guilty plea the defendant, upon the advice and counsel of his lawyer, abandons his normal role as an active litigant in the adversary process and joins with the prosecution to help pull the State’s case to shore. Here it should be remembered that the accused is helping the prosecutor shoulder the heaviest of evidentiary burdens — that of proof beyond a reasonable doubt.

Thus, in a plea of guilty or nolo conten-dere, an accused formally and officially abandons his traditional position as opponent of the prosecution. Admittedly, he does so actively, as a supposedly knowing and voluntary participant in the proceedings. Nonetheless, his position is analogous to that of a defendant who passively and unknowingly abandons his position as a litigant on appeal when his retained attorney fails to prosecute the defendant’s appeal after promising to do so. In these latter cases, we, as an appellate court, intervene in the attorney-client relationship because we realize that the defendant has become an unwitting accomplice in the State’s efforts to affirm his conviction. We recognize in those cases that due process requires that the defendant himself be afforded the opportunity to resume his position as an active litigant on appeal.

Similarly, when an accused agrees, after consultation with counsel, to plead guilty and present evidence which is ostensibly in support of his plea, he abandons his status as an active litigant. Should he then present evidence which reasonably and fairly brings his guilt into question the trial court should intervene in order to determine with care and discernment whether he wishes to reassert his role as a contestant in the adversary process. I would hold that federal due process requires this much at the very least.

ONION, Presiding Judge,

dissenting.

On original submission when this was still a five judge court appellant’s conviction was reversed and remanded because the trial court failed to sua sponte withdraw the appellant’s plea when the evidence reasonably and fairly raised an issue of fact as to the innocence of the appellant. It was undisputed that the evidence clearly raised the issue of self-defense. Now on rehearing before a nine judge court the majority grants the State’s motion for rehearing and affirms the conviction. In doing so, the majority relies upon the dissenting opinion on original submission and takes a well established rule applicable to both jury and bench trials and splits the rule in two, leaving the same applicable to jury trials, but inapplicable to bench trials. This is indeed regrettable. I adhere to the opinion on original submission. For the reasons stated there, I dissent.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for murder wherein the punishment was assessed at twenty (20) years’ imprisonment. The appellant waived the right to trial by jury and entered a plea of guilty before the court.

Appellant asserts that in view of the evidence offered his guilty plea should have been withdrawn by the court and a not guilty plea entered for him. Without detailing the evidence suffice it to say the evidence clearly raised the issue of self-defense.

This court has for years held that when evidence introduced before a jury (when a defendant had entered a guilty plea) makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required sua sponte to withdraw the defendant’s guilty or nolo contendere plea and enter a not guilty plea for the defendant. E. g., Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915); Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679 (1921); Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180 (1923); Aills v. State, 114 Tex.Cr.R. 345, 24 S.W.2d 1097 (1930); Villa v. State, 122 Tex.Cr.R. 142, 53 S.W.2d 1023 (1932); Thompson v. State, 127 Tex.Cr.R. 494, 77 S.W.2d 538 (1935); Edwards v. State, 134 Tex.Cr.R. 153, 114 S.W.2d 572 (1938); Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081 (1941); Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153 (1954); Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956); Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83 (1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1973); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, 548 S.W.2d 908 (Tex.Cr.App.1977).

Ever since Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942), the rule has been recognized and applied when the guilty or nolo contendere plea was before the court without a jury and has been consistently applied since the advent of the 1965 Code of Criminal Procedure. See, e. g., Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W 2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976).

And it has even been held applicable to a revocation of probation proceeding where like the guilty plea before the court the trial judge is the trier of the facts, the judge of the credibility of the witnesses and the weight to be given their testimony. Roberson v. State, 549 S.W.2d 749 (Tex.Cr.App.1977).

In the instant case we hold that the trial court under the circumstances presented should have withdrawn the guilty plea on its own motion because the evidence reasonably and fairly raised an issue of fact as to the innocence of the appellant.

The dissent would reach out and would have this court, sua sponte, adopt a new rule. The dissent would hold that since the advent of the 1965 Code of Criminal Procedure there would seem to be no valid reason for the trial court to withdraw the guilty plea and enter a plea of not guilty when the defendant enters a guilty plea before the court after waiving a jury.

In light of such statement, it is well that we examine the background of the rule involved. Prior to the 1931 amendment, Article 12, Vernon’s Ann.C.C.P., 1925, read:

“No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded. . . . ”

Thus, a jury was required in every felony case regardless of the plea.

It was then and now well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968), and cases there cited; Ex parte Taylor, 480 S.W.2d 692, 693 (Tex.Cr.App.1972); Gates v. State, supra; Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972); Durham v. State, 466 S.W.2d 758 (Tex.Cr.App.1971); Ochoa v. State, 481 S.W.2d 847 (Tex.Cr.App.1972); West v. State, 480 S.W.2d 640 (Tex.Cr.App.1972); Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970).

Where the guilty plea is before the jury, the presumption of innocence does not obtain under the plea and there is no issue of justification under it. Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Darden v. State, supra, and cases there cited.

In such cases there are no defenses or defensive issues for the jury to pass upon. Reyna v. State, supra; Jackson v. State, 155 Tex.Cr.R. 466, 236 S.W.2d 623 (1951); 16 Tex.Jur.2d, Criminal Law, § 362, p. 558.

If at such trial before the jury on a guilty plea the defendant deems the evidence insufficient, he may change his plea to not guilty at any time before the retirement of the jury to deliberate upon the case and put upon the State the burden of proving his guilt beyond a reasonable doubt. Reyna v. State, supra; Alexander v. State, 69 Tex.Cr.R. 23, 152 S.W. 436 (1912); Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279 (1922). See also Lewis v. State, 438 S.W.2d 816 (Tex.Cr.App.1969).

Despite the procedures above described, the rule in question in the instant case has long had application. If the evidence introduced before the jury on a guilty plea makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such fact is not withdrawn, then it becomes the obligation of the court to withdraw the guilty plea and enter a plea of not guilty for the defendant if he fails to do so himself. Reyna v. State, supra, and cases there cited; Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942), and cases there cited; Gates v. State, supra; Woodberry v. State, supra.

Turning to pleas of guilty before the court; it is observed that by Acts 1931, 42nd Leg., p. 65, ch. 43, § 3, Article 12, supra, was amended to read:

“No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded, unless in felony cases less than capital, the defendant upon entering a plea of guilty has in open Court in person and with the approval and consent of the Court and the State’s Attorney, as provided in Section 1 of this Act, (Article 10a of Code of Criminal procedure of the State of Texas), waived his right of a trial by Jury. Provided, however, that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the Court as the basis for its verdict, and in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same.”

By the same enactment, Article 11, Vernon’s Ann.C.C.P., 1925, was amended to read:

“The defendant in a Criminal prosecution for any offense, may waive any right secured him by Law except the right of a trial by a Jury in a felony ease when he enters a plea of not guilty.” (Emphasis added.)

The Amendatory Act of 1931 added the italicized words above. See also Article 10a, Vernon’s Ann.C.C.P., 1925, which is also a part of the same enactment.

Prom the above it is clear that a defendant could waive trial by jury in a non-capital case if he entered a plea of guilty, but a jury was still required in such cases if his plea was not guilty.

Under the procedure established in every case where the defendant entered a guilty plea before the trial court, the State was required to introduce evidence showing the guilt of the defendant, and if the State failed in this respect the defendant was entitled to a new trial if there had been a conviction. Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386 (1940); Franklin v. State, 140 Tex.Cr.R. 251, 144 S.W.2d 581 (1940); Howell v. State, 140 Tex.Cr.R. 627, 146 S.W.2d 747 (1941); Wilson v. State, 154 Tex.Cr.R. 39, 224 S.W.2d 234 (1949). Thus, while a plea of guilty constitutes an admission of guilt, it would not alone authorize conviction when trial by jury was waived and such plea was entered before the trial court. The burden remained _ upon the State to introduce sufficient evidence to show the guilt of the accused and all necessary elements of the offense. Burks v. State, supra; Spivey v. State, supra. See also Utsman v. State, 485 S.W.2d 573 (Tex.Cr.App.1972); Edwards v. State, 463 S.W.2d 733 (Tex.Cr.App.1971).

If during the proceedings on a plea of guilty the defendant considers the evidence insufficient, the plea should be withdrawn and a plea of not guilty entered. Garcia v. State, supra; Alexander v. State, supra; Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W.2d 594 (1947).

The trial court, of course, is required to exercise great care in preventing the improvident entry of a plea of guilty and a liberal practice prevails touching its withdrawal. Garcia v. State, supra; Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953).

In cases where the plea of guilty is before the court, and all formalities have been complied with, evidence heard, etc., and the judge announces judgment or has taken the case under advisement, it is too late to withdraw a guilty plea. Ralls v. State, supra. See also Stanton v. State, supra; Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (1959).

In Burks v. State, supra, the question arose as to whether the rule requiring withdrawal of a guilty plea under certain conditions where the plea was before a jury was also applicable to such a plea before the court. The court in Burks noted that the amendment to Article 12, supra (Acts 1931, 42nd Leg., p. 65, ch. 43), contained no provision evidencing the legislative intent that the rule applied theretofore in pleas of guilty before the jury was not to be applied in pleas of guilty before the trial court. The court then wrote:

“. . . The amendment and rule are, therefore, to be construed together; and, when so construed, it now appears to be the settled law of this state that one accused of a felony less than capital may, under his plea of guilty, waive a trial by jury and his punishment may be fixed by the trial judge, provided: (a) the State introduces evidence sufficient to show the accused guilty of the offense charged; and (b) no facts are received in evidence making evident the innocence of the accused, or which reasonably and fairly present such as an issue of fact. Unless the facts bring the case within the rule stated, the trial judge is without authority to render a judgment finding-the accused guilty, because, if the State fails to show the guilt of the accused, no conviction can follow; and, if evidence be received showing the accused to be innocent of the offense charged, then the plea of guilty is supplanted by the entry of a plea of not guilty, in which event the trial judge is without authority to determine the guilt of the accused.”

It appears that the rule established in Burks has been followed before and since the adoption of the 1965 Code of Criminal Procedure. See, e. g., Gonzales v. State, supra; Faz v. State, supra; Trevino v. State, supra; Cooper v. State, supra; Sanchez v. State, supra.

The dissent now takes the position that since Articles 1.13 and 1.14 and 1.15, Vernon’s Ann.C.C.P., 1965, permit a defendant to waive a jury and enter a plea of not guilty before the court in all felony cases except capital ones there is no valid reason for continuing the rule announced in the Burks case decided under the former Code of Criminal Procedure, and those decisions since the effective date of the 1965 Code of Criminal Procedure which followed Burks are overruled. We do not agree.

It is true that the 1965 Code of Criminal Procedure permits the defendant to enter a plea of not guilty before the court after waiving trial by jury, and that a defendant’s inability to waive trial by jury where the plea was not guilty was indeed a factor in the Burks decision, but it was not the sole factor. Further, we find nothing in the 1965 Code of Criminal Procedure evidencing a legislative intent that there should be an abandonment of the rule under discussion because of any revision in the applicable statute.

There should be no difference in the application of the rule regardless of whether the guilty plea is before the jury or the judge. There are perhaps stronger reasons for its application in guilty pleas before the court than before the jury. As noted, a guilty plea before the jury admits the existence of all facts necessary to establish guilt, and the only purpose of the State offering evidence is to enable the. jury to intelligently assess punishment. On the other hand, while a plea of guilty before the court constitutes an admission of guilt, it alone does not authorize a conviction. The State has the burden of producing sufficient evidence to show the guilt of the accused and all necessary elements of the offense. When under these circumstances evidence is introduced which makes evident the innocence of the defendant or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, it is as important, if not more so, that the plea be withdrawn and a not guilty plea entered than in the jury type situation. When the plea is withdrawn and a not guilty plea entered, the trial court, trier of the facts, will be more apt to hold the balance nice, clear and true between the State and the accused. The State will be alerted that the case is now proceeding upon a not guilty plea, that the admission of guilt is no longer viable, that its burden of proof is now beyond a reasonable doubt rather than the lesser burden of “sufficient evidence.” See Article 1.15, supra. Further, the defendant will be in a better position to elicit and fully develop any defenses he may have.

The dissent contends that under a guilty plea before the court the court may find the defendant not guilty and no purpose is served in withdrawing the guilty plea and entering a not guilty plea as required by the rule. Such action may be technically correct, but is not too likely to occur. Most trial judges will not permit the State to assume its burden is only “sufficient evidence” to support the guilty plea when in light of the evidence adduced the court intends to acquit the defendant from which action the State has no right of appeal, Article V, § 26, Texas Constitution; Article 44.01, Vernon’s Ann.C.C.P., and where the case will not be tried again in light of the federal and state constitutional provisions regarding double jeopardy. See also Article 1.10, Vernon’s Ann.C.C.P. Allowing the rule to remain viable will serve to benefit the State as well as the defendant and will promote the ends of justice.

What the dissent seeks to do is to create a harmless error rule for all cases appealed from guilty pleas before the court where the evidence makes evident the innocence of the accused or which reasonably and fairly raises such issue and where such evidence is not withdrawn. There exists, however, no necessity to change the rule.

The evidence in the instant case having reasonably and fairly raised an issue as to the defense of self-defense, we conclude the court erred in not withdrawing the guilty plea and entering a plea of not guilty.

The judgment is reversed and the cause remanded.

      . “Article 44.02. Defendant may appeal. A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.”

      . In 1977 there were 136,392 criminal cases on the dockets of just the district courts of this State. See 49th Annual Report of the Texas Judicial Council, First Annual Report of the Office of Court Administration, May 1978, Page 142. The increase of new criminal cases in 1977 was 6 percent from 67,269 in 1976 to 71,839.

      . Tex.Const., Art. I, Sec. 19.

      . U.S.Const., Amends. 5, 14.

      .See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Henderson v. Morgan, 426 U.S. 637, 644-645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

      . See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

      . See Ex Parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975). Ex Parte Hill, 528 S.W.2d 259 (Tex.Cr.App.1975); Ex Parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1976). See also Yates v. State, 557 S.W.2d 115 (Tex.Cr.App.1977); Guilory v. State, 557 S.W.2d 118 (Tex.Cr.App.1977).

      . It is interesting to note that the State in its motion for rehearing made no effort to endorse the dissenting opinion on original submission now warmly embraced by the majority.

      . The State has not urged the court to adopt such position.

      . It would appear the evidence must go farther than just tending to show a defensive issue, but must reasonably and fairly present such issue before the trial court would be required to withdraw the guilty plea. Reyna v. State, supra. See also Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Jones v. State, 491 S.W.2d 883 (Tex.Cr.App.1973).

      . In 9 Houston Law Review 641, Bruder, “Pretrial Motions in Texas Criminal Cases,” the procedure for guilty pleas before the court in felony cases was discussed. There it was written:
      “In such cases, the State is under a burden to prove with sufficient evidence the guilt of the accused. The plea of guilty in such cases only constitutes an admission of guilt and does not authorize a conviction. The State, however, may discharge this lesser burden of proof by obtaining a stipulation of all the evidence with the defendant’s consent."


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Denise Ann DUBUISSON, Appellant, v. The STATE of Texas, Appellee. Brenda Sue ROSENDAHL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54981, 54982.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.
    Rehearing Denied Nov. 15, 1978.

      George W. Long, San Antonio, for appellant.
    James M. Parker, City Atty., Charles S. Johnson and Steven W. Arrange, Asst. City Attys., San Antonio, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for violations of San Antonio Municipal Ordinance 46370 (hereinafter referred to as the ordinance). Upon their pleas of not guilty before the court, each appellant was convicted under a different section of the ordinance; each was assessed a fine of one hundred ten dollars.

Appellants both contend that the ordinance in its entirety is unconstitutionally overbroad on its face because it sweeps within its ambit protected speech and conduct in violation of the First and Fourteenth Amendments. We agree and reverse the judgments of conviction.

Appellant Rosendahl was convicted under Sec. 2(A) of the ordinance which provides:

“No entertainer or performer employed in any establishment in which food or beverage is sold to be consumed upon the premises, and wherein a strip or striptease act is conducted or engaged in shall mingle therein with any patron or spectator for any purpose.”

Appellant Dubuisson was convicted under Sec. 3(A) of the ordinance which provides:

“It shall be unlawful, in any place of business where food or beverage is sold to be consumed upon the premises, for any person, who is employed therein in any capacity, to solicit any patron of such establishment to purchase any article of food or beverage for the one soliciting or for another employee of such establishment.”

Clearly, the ordinance seeks to define certain criminal conduct for which the penal sanction is not to exceed that of a Class C misdemeanor. See V.T.C.A., Penal Code, Sec. 12.23.

Initially, we are confronted with the issue of appellants’ standing to challenge the constitutionality of the ordinance. At a pre-trial hearing, the trial court concluded that there was no unconstitutional application of the ordinance to appellants. Assuming, without deciding, that the trial court’s conclusion was correct, we hold that appellants nevertheless have standing to challenge the validity of the ordinance in this case. As the Supreme Court of the United States stated in Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648, 660 (1975):

“[EJven though a statute or ordinance may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the Court.”

See also Young v. American Mini Theatres, 427 U.S. 50, 58, 96 S.Ct. 2440, 2446, 49 L.Ed.2d 310, 319 (1976).

The record reflects that on March 20, 1976, at approximately 9:30 p. m., Detective Rudy Fuentes of the San Antonio Police Department visited a San Antonio nightclub known as the Casino Strip. After he had been there several minutes, appellant Rosendahl joined Fuentes at his table and the two engaged in general conversation. Shortly thereafter, appellant Dubuisson, a waitress at the club, approached Fuentes and Rosendahl and asked Fuentes if he “would buy the lady a drink”; Fuentes agreed. Approximately ten minutes later, after consuming the drink purchased for her by Fuentes, Rosendahl was introduced to the club’s patrons by the bartender. She then began performing a dance in striptease fashion which culminated in her dancing completely nude before the audience.

At the outset we observe that Ordinance 46370 makes no distinction between establishments licensed to sell alcoholic beverages and those that are not so licensed. It applies with equal force to employees and entertainers working in either type of establishment.

The record indicates that at the time of the offenses the Casino Strip was not licensed to sell alcoholic beverages, and that no alcoholic beverages were in fact sold. Therefore, it cannot be argued that the municipal police power to enact this ordinance is buttressed by the explicit grant of power from the Twenty-First Amendment of the U.S. Constitution. See and compare California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), in which the U.S. Supreme Court upheld certain state regulations prohibiting lewd or naked dancing and entertainment in establishments licensed to sell alcoholic beverages. In so holding the court stated:

“The state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink.
“While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-First Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.” Id. at 114, 93 S.Ct. at 395, 34 L.Ed.2d at 349-350.

We conclude therefore, based on the rationale of LaRue, supra, that the ordinance must stand or fall solely on the basis of the city’s general police power, delegated to it by the State, to reasonably regulate activities relating to the health, safety and welfare of its citizenry.

The critical issue in the present case is the city’s attempt to ban certain speech and conduct across the board, in liquor-vending as well as non-liquor-vending establishments.

The ostensible purpose of the ordinance, as evidenced by its preamble, is to protect the novice clientele of San Antonio nightclubs from being “hustled” and “conned” by unscrupulous employees working in some of those establishments. We recognize the legitimate governmental interest in eliminating this exploitative type of conduct, especially since tourism plays such a significant role in the city’s economy, as reflected by the record.

However, a permissible end may not be accomplished by unconstitutional means. Only a compelling state interest will warrant the reasonable governmental regulation of one’s First Amendment freedoms. Young v. American Mini Theatres, supra; N. A. A. C. P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405, 421 (1963).

It does not require a strain of the imagination to envision numerous situations where the ordinance would officially condemn otherwise constitutionally protected conduct. Within the meaning of the ordinance’s definitions of “strip” and “striptease” could conceivably fall a variety of productions of acclaimed artistic value ranging from modern interpretations of Shakespeare to the contemporary musical “Hair.” The practical effect of Sec. 2(A) would be to hold the entire cast of players in these productions incommunicado from admiring fans and patrons while the performers remained on the premises upon which the performance was staged, provided that food or beverage were sold for consumption there. It requires sweeping authority indeed to mute an entire cast of players in the manner contemplated by Sec. 2(A).

In this respect, the ordinance tends to impede advancement of the arts. Furthermore, we recognize the artist’s need to establish a healthy rapport with his patrons in order to improve and refine his creative product. Entertainers, like other citizens, are entitled to the fundamental freedoms guaranteed by the First Amendment. Schacht v. United States, 398 U.S. 58, 63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970). We therefore hold that Section 2(A) of the ordinance is unconstitutionally overbroad.

With respect to Sec. 3(A), which authorized the conviction of appellant Dubuis-son, we note initially that the communication sought to be prohibited is properly labeled as “commercial speech” because it involves “a solicitation to purchase or otherwise pay or contribute money.” Va. State Brd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346, 358 (1976). “Commercial speech,” although more readily subject to reasonable regulation than the expression of ideas, beliefs and philosophy, is nevertheless protected by the guarantees of the First Amendment. Va. State Brd. of Pharmacy v. Va. Citizens Consumer Council, Inc., supra.

Section 3(A) prohibits employees of food or beverage vending establishments from soliciting “any patron.” The phrase “any patron” conceivably includes friends as well as relatives of the soliciting employee. Thus, one is subject to prosecution if he were to solicit his parent or spouse who happened to be patronizing his place of employment — even if the solicitation were in jest.

Nor does Sec. 3(A) require that the solicitation be for the purchase of food or beverage sold on the establishment’s premises wherein the solicitor is employed. Hence, the ordinance prohibits solicitations for food or beverage to be purchased after working hours and at remote locations.

Moreover, it is possible for one to violate Sec. 3(A) without knowing one has done so. This section imposes no requirement that the soliciting employee “know” that he is soliciting for the benefit of another employee, and therefore presumes that every employee “knows” each of his fellow employees. We can conceive of situations where this presumption would prove to be erroneous.

A municipal ordinance may, in some instances, permissibly provide for strict criminal liability due to the overriding governmental interest in promoting the health, safety and welfare of its citizens; however, an ordinance that seeks to regulate personal freedoms by imposing penal sanctions for unknowing infractions, under the guise of general police power, exceeds the constitutional limits of due process. Smith v. California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205, 212 (1959).

In light of the foregoing considerations, we perceive no compelling governmental interest sufficient to overcome the potential source of mischief created by Ordinance 46370. Young v. American Mini Theatres, supra; N. A. A. C. P. v. Button, supra.

Mindful of our duty to construe the ordinance in such a way as to uphold its validity if possible, Delorme v. State, 488 S.W.2d 808, 811 (Tex.Cr.App.1973), we conclude that the ordinance in its entirety is over-broad and not subject to a limiting construction; we further conclude that its deterrent effect on legitimate expression and conduct is both real and substantial. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). Therefore, we hold that it cannot withstand the constitutional challenge here presented.

Unaided by the specific grant of power from the Twenty-First Amendment, the City of San Antonio exceeded its general delegated police power by enacting Ordinance 46370. See generally Marney v. State, 168 Tex.Cr.R. 567, 330 S.W.2d 623 (1960); Ex parte Luehr, 159 Tex.Cr.R. 566, 266 S.W.2d 375 (1954); Ex parte Faulkner, 143 Tex.Cr.R. 272, 158 S.W.2d 525 (1942).

In concluding that the ordinance is invalid on its face, we do not impugn the legitimate governmental interest at stake. We hold only that the present ordinance does not satisfy the rigorous constitutional standards of precision and clarity that apply when government attempts to regulate First Amendment rights. See Erznoznik v. City of Jacksonville, supra.

The judgments are reversed and the prosecutions under this invalid ordinance ordered dismissed.

      . Ordinance 46370 also contains the following special definitions:
      “SECTION 1. Definitions.
      “The following definitions shall apply in the interpretation and the enforcement of this article:
      “(1) Mingle — to associate or fraternize with or join the company of patrons or spectators of the establishment in which the entertainment is being performed.
      “(2) Private Parts — The following parts of the human body: the pubic area, pubic hair, perineum and buttocks of all entertainers, and the nipples of a female entertainer.
      “(3) Striptease — A form of entertainment wherein any of the private parts of an entertainer are exposed during the course of a performance.
      “(4) Strip — A form of entertainment wherein all of the private parts of an entertainer are exposed during the course of a performance.”

      . Section 4(A) of the ordinance provides:
      “SECTION 4. Penalties.
      “A. Any person who shall violate any provision of this article shall be deemed to be guilty of a misdemeanor and shall upon conviction be punished by a fine not exceeding two hundred dollars ($200.00).”

      . The Twenty-First Amendment provides in relevant part:
      “Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, ic hereby prohibited.”

      . The State relies on the following cases as persuasive authority to uphold the validity of the ordinance: De Francis v. City of Bossier, 322 So.2d 333 (La.App.1975); City of New Orleans v. Kiefer, 246 La. 305, 164 So.2d 336 (1964); Playboy Club of New York, Inc. v. O’Connell, 14 N.Y.2d 648, 249 N.Y.S.2d 433, 198 N.E.2d 602 (N.Y.App.1964). The State’s reliance is misplaced; the cases cited are inap-posite.
      While the ordinances involved in these cases are substantially similar to the one presently considered, the holdings of those cases are based on the State’s right, under the Twenty-First Amendment, to regulate within its borders the sale and use of intoxicating liquors, a power which does not aid the City of San Antonio in the present case. See also Aristocratic Restaurant of Mass., Inc. v. Alcoholic Beverages Control Comm’n., 374 N.E.2d 1181 (Mass.1978); People v. King, 115 Cal.App.2d Supp. 875, 252 P.2d 78 (1952); Page v. State, 492 S.W.2d 573 (Tex.Cr.App.1972); Courtemanche v. State, 507 S.W.2d 545 (Tex.Cr.App.1974).

      .The preamble of Ordinance 46370 provides:
      “WHEREAS, the City of San Antonio is the site of major training bases for new enlisted military personnel of the United States and foreign nations, many of whom have been victimized by employees and entertainers in certain establishments; and
      “WHEREAS, local youth have also been victimized by said entertainers and employees; and
      “WHEREAS, tourists, who provide the basis of a major source of revenue for the City of San Antonio have similarly been victimized by said employees and entertainers; and
      “WHEREAS, such conduct has been encouraged by management of said establishments; and
      “WHEREAS, said conduct often consists of a promise or an intimation of sexual conduct, as defined in Section 43.01 V.T.C.A., Penal Code, between entertainer and patron premised upon the purchase of food or beverage for the one soliciting; and
      “WHEREAS, such intimation of sexual conduct is often reinforced by a touching or fondling of the patron or spectator by the entertainer; and
      “WHEREAS, the City Counsel has determined that it is the duty of the City of San Antonio to protect the health and welfare of the consuming public in this area; and
      “WHEREAS, many of such businesses hold Food Establishment Licenses issued by the City of San Antonio; NOW THEREFORE;


author: DOUGLAS, Judge.

text:
    John Wayne NIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 55295.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 18, 1978.
    Rehearing Denied Nov. 15, 1978.

      Donald W. Rogers, Jr., Houston, for appellant.
    W. G. Woods, Jr., Dist. Atty. and Elliott Knott, Asst. Dist. Atty., Liberty, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

John Wayne Nixon appeals his conviction for aggravated robbery. The jury assessed punishment, enhanced by one prior conviction, at life.

“Sonny” Huey, a deputy sheriff, testified that he was called to a gas station to investigate a situation involving appellant and Larry Dalton. Upon arrival, he determined that appellant possessed several weapons. As he called for assistance to further investigate, appellant aimed a gun at him and told him to get away from the radio. Nixon ordered Huey to get into a truck and give his vehicle a push. Before Huey could do this appellant told Larry Dalton to get into the truck and give him a push. Dalton did this and both vehicles fled down the highway. Rhonda and Harry Lee Ains-worth, the owner of the truck and his wife, both testified to this same series of events.

Both vehicles were abandoned only a few miles down the road. The stolen truck had a flat tire and was smoking under the hood.

Appellant challenges the sufficiency of the evidence. Specifically, appellant argues that the State failed to prove that he acted with an intent to deprive the owner of the truck.

The evidence shows that appellant told Larry Dalton to get into the stolen truck to give his vehicle a push. After doing this, both Dalton and appellant sped off. The truck was later abandoned in an inoperable condition.

Appellant contends that the facts show they used the truck only to effectuate their escape and did not intend to deprive the owner of the truck. We have rejected similar arguments in the past and upheld the jury’s verdict. Stout v. State, 467 S.W.2d 409 (Tex.Cr.App.1971).

In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict. Fernandez v. State, 564 S.W.2d 771 (Tex.Cr.App.1978). The jury is the sole judge of the credibility of the witnesses and may believe those portions of the evidence that it deems proper. Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974).

It is a reasonable inference from the evidence in this case that appellant and Dalton intended to take the truck and abandoned it only when it became inoperable. The jury accepted this inference and resolved the issue against appellant. The evidence was sufficient.

Appellant contends the trial court erred in refusing to allow Larry Dalton to testify at the punishment phase of the trial. Dalton would have testified that he took the truck because he panicked and appellant did not direct or encourage him.

Appellant relies on Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App.1973), and Brazile v. State, 497 S.W.2d 302 (Tex.Cr.App.1973). Both of these cases, involving offenses under our former penal code, were reversed because the trial court excluded defense evidence concerning lack of malice at the punishment phase. In both cases malice was not an element of the offense and was relevant only with respect to punishment. As Judge Morrison points out in his concurring opinion in Brazile, these cases do not hold that affirmative defenses or evidence exonerating the defendant is admissible at the punishment phase.

The disposition of this ground of error is governed by our holding in White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969). In White, the defendant, at the punishment phase, sought to take the stand and testify to his version of the facts. We held that this evidence was properly excluded as not being relevant at the punishment phase of the trial.

Evidence of affirmative defenses which would exonerate the defendant is not admissible at the punishment phase of the trial. The court properly excluded such evidence in this case.

Appellant complains that he was denied jail time credit from July 28, 1975, to June 4, 1976. Appellant was credited with time from March 25,1975, to July 28,1975, while he was held in the Liberty County jail. He was then transferred to the Polk County jail, received a sentence there and was sent to the Texas Department of Corrections.

Appellant is entitled to all time spent in jail “on said cause.” Article 42.03, V.A.C.C.P.; Harrelson v. State, 511 S.W.2d 957 (Tex.Cr.App.1974). However, when he is confined by another jurisdiction, he is confined “on said cause” only if a detainer or hold is lodged against him. Ex parte Alvarez, 519 S.W.2d 440 (Tex.Cr.App.1975); Ex parte Spates, 521 S.W.2d 265 (Tex.Cr.App.1975).

The record fails to reflect that a hold was placed by Liberty County with either Polk County or the Department of Corrections. Based on the record, appellant is entitled to no additional time. If in fact a hold was placed, appellant should be credited with all such time.

In his next ground of error, appellant, by way of a pro se brief and his counsel’s supplemental brief, contends that he was tried on a fundamentally defective indictment. Excluding the formal parts, the primary count of the indictment alleges:

“. . . did then and there while in the course of committing theft and with intent to exercise control over property of Harry Lee Ainsworth, to-wit: a pickup truck, without the effective consent of the said Harry Lee Ainsworth and with intent to deprive the said Harry Lee Ainsworth of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a gun, knowingly and intentionally threaten and place Harry Lee Ainsworth in fear of imminent bodily injury and death. . . . ”

Appellant argues that because the indictment substitutes the phrase “with intent to exercise control over property” for the statutory “with intent to obtain or maintain control over property,” the indictment is fundamentally defective.

Appellant filed no motion to quash and does not contend that he was not given sufficient notice to defend himself against the charge. The charge to the jury contained the statutory “obtain or maintain” definition. Thus, there was no chance that the substitute wording in the indictment affected the jury’s deliberation.

Article 21.17, V.A.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

The exact words of the statute need not be alleged when there is no material difference between the allegations. Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977).

“Obtain” refers to the initial portion of exercising control; “maintain” refers to the continuation of exercising control. The words are sufficiently similar and there is no material difference. The indictment is proper.

Finally, appellant contends the indictment in a prior burglary conviction used against him at the punishment phase is void. This allegation is currently pending on a collateral attack of that conviction. Assuming, without deciding that the burglary conviction is void, we note that the State also introduced six robbery by assault convictions at the punishment phase. Given the number and nature of these convictions and the fact of the possession of several weapons by the defendant in the current transaction, the introduction of the burglary conviction is harmless error. Marks v. State, 454 S.W.2d 749 (Tex.Cr.App.1970).

We have examined the other grounds raised in appellant’s pro se brief. They are without merit.

There is no reversible error. The conviction is affirmed.


author: ODOM, Judge. ROBERTS, Judge,

text:
    Charles G. HANNER, Appellant, v. The STATE of Texas, Appellee.
    No. 53786.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 1, 1978.

      Luke W. Able, Jr., Houston, for appellant.
    Ogden Bass, Dist. Atty. and Jerome L. Farrer, Asst. Crim. Dist. Atty., Angleton, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for rape by force. The jury assessed the appellant’s punishment at fifteen years’ confinement in the Texas Department of Corrections.

The appellant contends that the trial judge erred by: (1) failing to delete portions from the appellant’s written confession before it was admitted into evidence; (2) allowing the appellant’s amended motion for new trial to be overruled by operation of law without holding a hearing on it; (3) allowing, in four instances, the introduction of hearsay evidence; (4) overruling the appellant’s motion for mistrial; (5) failing to instruct the jury that they must find, beyond a reasonable doubt, that the appellant’s penis penetrated the prosecutrix’s vagina; (6) failing to instruct the jury on the lesser included offense of attempted rape; (7) failing to rule on the appellant’s objection to the prosecutor’s final argument; (8) failing to allow the appellant to develop and introduce evidence of jury misconduct and other errors during the appellant’s hearing on his amended motion for new trial. We affirm.

The trial testimony reveals that in the early hours of May 20,1975, the prosecutrix drove from Shreveport, Louisiana, to Surf-side Beach in Freeport. The prosecutrix spent the day on the beach. At approximately 6:00 p. m., the appellant, the appellant’s cousin, Charles Gilbreath, and another person identified only as James were driving along Surfside Beach when they saw the prosecutrix. At that time, the prosecutrix was putting together a charcoal grill. As Gilbreath drove the Plymouth by the prosecutrix, the appellant asked her if she needed any help. She responded that she did not need any assistance and Gil-breath continued to drive down the beach.

Gilbreath turned the car around and drove toward the prosecutrix. The appellant again asked the prosecutrix if she needed any help and she again responded in the negative. The next thing the prosecu-trix realized, the appellant was standing beside her trying to make “small talk.” She merely continued to put the grill together.

The prosecutrix finally asked the appellant to leave. The appellant asked why, and she told him that she had come to the beach to be alone. The appellant then started to walk down the beach.

Just as the appellant started to walk down the beach, the prosecutrix realized that a nearby Winnebago camper was in the process of leaving. The prosecutrix picked up her grill and put it into the hatchback of her car. She then got into her car to drive away, but the appellant came up to the driver’s side of the prosecutrix’s car, grabbed the door, opened it and forced himself inside, thereby forcing the prosecu-trix over to the middle of the car. The prosecutrix asked him what he was doing and told him to leave her car.

When the appellant failed to respond to her demand to leave her car, she attempted to escape out the passenger side of the car. The appellant, however, put his arm around her neck and restrained her. Then the appellant told her “to shut up, to quit hollering,” and that he “had a gun” and “he would use it” if necessary.

A physical struggle ensued during which the appellant punched the prosecutrix in her left eye. The force and threats employed by the appellant were sufficient to subdue the prosecutrix to the point where the appellant was able to start the car and drive it down the beach. As the appellant drove the prosecutrix’s car down the beach, he had his arm around her neck and was feeling her breasts while telling her that he was going to “f_k” and “e_t” her.

The appellant stopped the car, but the appellant’s companions drove up. The appellant promptly started the prosecutrix’s car and drove further along the beach. When the appellant subsequently stopped her car, the appellant told the prosecutrix to take off her clothes. The prosecutrix, who was crying, begged the appellant to let her alone. The appellant yelled at the pros-ecutrix and hit her again. He then ripped off the top button of the prosecutrix’s blouse. The prosecutrix then removed her clothes and laid down on the front seat.

The appellant unzipped his pants and attempted to insert his penis into the prosecu-trix’s vagina. The prosecutrix testified that the appellant could not achieve an “erection” and that, despite his efforts, his penis only partially penetrated her vagina. The appellant subsequently forced the pros-ecutrix into the back portion or hatchback area of her car. He then continued to rape her for approximately ten to fifteen minutes.

Thereafter, the appellant got out of the prosecutrix’s car and told her that he would kill her if she reported the occurrence. The prosecutrix got into the driver’s seat and attempted to drive away, but the car got stuck in the sand. The appellant recruited Gilbreath and James to assist him in getting the prosecutrix’s car out of the sand. The Plymouth was subsequently backed up to the prosecutrix’s car so that chains could be attached to it.

Meanwhile, a car driven by Edward Springs, which had driven by the prosecu-trix’s car twice during the rape, passed by a third time. The prosecutrix waved at him and attracted his attention. Springs drove up and watched the appellant and his companions free the prosecutrix’s car from the sand. At that time, the prosecutrix drove off and Springs followed her. When the prosecutrix stopped her car a short way down the beach, Springs got out of his car and asked her if she had been attacked. The prosecutrix responded in the affirmative and Springs took the prosecutrix to a nearby convenience store to call the police.

The police were summoned, and the pros-ecutrix was examined by a physician. There was no evidence of sperm in her vagina and no evidence of any trauma in her pelvic area.

The defensive testimony focused on the appellant’s alcoholic condition during the time of the rape. The testimony tends to show that it would have been impossible for the appellant to have been able to have sexual intercourse with the prosecutrix. The defense also presented evidence that any sexual contact between the appellant and the prosecutrix was consensual in nature.

The appellant’s first contention is that the trial judge erred by failing to delete a portion of the appellant’s confession. The portion of which the appellant complains is the underlined portion of the following:

“I met some old woman on the street and took her to Rosie’s. We had a beer there then I was going to take the woman back to the Cozy Lounge. I told Ray to come back to the Cozy and pick me up.
“Just as I got outside the Cozy, I was picked up by Freeport Police Department.”

The events which the appellant wanted deleted occurred after the rape. The appellant contends that the events reveal an extraneous instance of immorality. The appellant relies upon Chatterfield v. State, 436 S.W.2d 146 (Tex.Cr.App.1969).

In Chatterfield, the defendant was charged with assault to rob. Over the defendant’s objection, the prosecutor elicited, in his case-in-chief, a telephone conversation the defendant had with a married woman within one hour of the commission of the offense. This Court there held that

“[t]he testimony relating the telephone conversation was not pertinent to any issue raised on the trial, and shows appellant’s conduct which was wholly disassociated with the offense for which he was on trial, and was of such a nature that it was reasonably calculated to prejudice his rights and deprive him of a fair and impartial trial on the issue of whether the jury would recommend that his sentence be probated.”

However, we do not view the “objecta-ble” portion of the appellant’s confession as evidence of an extraneous offense unrelated to the offense on trial. Rather, the events demonstrate the appellant’s actions following the rape. The appellant’s actions immediately after the rape were admissible to show the complete context in which the criminal act occurred. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). Cf. Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975).

Moreover, even if the objectionable portion of the confession should have been deleted to avoid any possibility of prejudice, we do not consider the objectionable portion of the appellant’s confession to be so prejudicial as to conclude that the trial judge abused his discretion in refusing to delete it. Cf. DeLeon v. State, 500 S.W.2d 862 (Tex.Cr.App.197S). Appellant’s first contention is overruled.

The appellant’s second contention is that the trial judge erred by allowing the appellant’s amended motion for new trial to be overruled by operation of law.

On January 23, 1976, the jury returned a verdict finding the appellant guilty. The jury assessed the appellant’s punishment at fifteen years. That same day, the trial judge entered the judgment and set the sentencing for February 5, 1976.

On February 4, 1976, the appellant filed his motion for new trial. The appellant’s motion for new trial was overruled by the trial judge on February 5, 1976, sentence was pronounced, and appellant gave notice of appeal. On February 9, 1976, the appellant filed an amended motion for new trial and the trial judge set a hearing for February 19, 1976. However, a hearing on the amended motion for new trial was not held until March 18, 1976. Because notice of appeal was not withdrawn and the sentence was not set aside before the February 9 motion for new trial was filed, the trial court lacked jurisdiction to entertain it and it should not have been considered. Locke v. State, 502 S.W.2d 1 (Tex.Cr.App.), and authorities cited there. The ground of error is overruled.

The appellant’s third, fourth, fifth and sixth grounds of error contend that the trial judge impermissibly allowed the prosecutor to introduce hearsay evidence of the prosecutrix’s statements to Edward Springs and that these statements bolstered the prosecutrix’s unimpeached testimony.

The statements made by the prosecutrix to Springs, by the prosecutrix, and introduced through Springs were that: (1) the prosecutrix did not know the men; (2) the prosecutrix was molested by the large man; (3) the prosecutrix told the appellant that she would not report him if he turned her loose; and that (4) the appellant told her that he would kill her if she reported the rape.

All of these statements were made by the prosecutrix or repeated to Springs within a very short period after the offense was committed. In Knox v. State, 487 S.W.2d 322, 327 (Tex.Cr.App.1972), we quoted the following from 48 Tex.Jur.2d, Rape, Section 56, p. 691:

“ ‘The fact that the prosecutrix cried out or complained of an outrage perpetrated on her, shortly after its occurrence, may be proved by the state. Though the details of the cry or complaint must be part of the res gestae in order to be admissible as original evidence, the question whether the statements made were strictly res gestae is immaterial where the evidence is confined to the bare fact of complaint.’ ”

We hold that all the foregoing statements were either “confined to the bare fact of complaint” or were res gestae of the offense. Albrecht v. State, supra; Price v. State, 496 S.W.2d 103 (Tex.Cr.App.1973). Appellant’s third, fourth, fifth and sixth contentions are overruled.

The appellant’s seventh contention is that the trial judge abused his discretion by refusing to grant the appellant’s motion for mistrial after the prosecutor elicited, on cross-examination, that the defensive witness was the appellant’s brother-in-law.

The appellant called Fred Sheffield to testify to the appellant’s reputation for being a peaceful and law-abiding citizen. On cross-examination, the prosecutor asked the witness if he was related to the appellant. When Sheffield responded that he was related to the appellant, the prosecutor asked in what manner. Sheffield responded: “Brother-in-law.”

It is well established that the State should not prove that a defendant in a rape case is married. Lassere v. State, 458 S.W.2d 81 (Tex.Cr.App.1970). In the present case, Sheffield’s testimony did not reveal that the appellant was married, only that the appellant had a brother-in-law. Moreover, during the guilt or innocence stage of the trial, the appellant called his wife to testify that the appellant was physically unable to engage in sexual intercourse when he consumed large quantities of alcoholic beverages. Any error was waived by the introduction of similar evidence by the appellant. Appellant’s seventh contention is overruled.

The appellant’s eighth contention is that the trial judge erred by failing to charge the jury that they must find, beyond a reasonable doubt, that the appellant’s penis penetrated the prosecutrix’s vagina.

The trial judge defined sexual intercourse to mean “any penetration of the female sex organ by the male sex organ.” This language tracked the definition of sexual intercourse set forth in V.T.C.A., Penal Code Section 21.01(3). The trial judge thereafter instructed the jury that they must find beyond a reasonable doubt that sexual intercourse occurred. The charge was proper. No error is shown. Appellant’s eighth contention is overruled.

The appellant’s ninth contention is that the trial judge committed fundamental error by failing to charge the jury on the lesser included offense of attempted rape. Basically, the appellant contends that the defensive evidence of his impotency is the converse of penetration.

The obvious flaw in the appellant’s argument is that his request that the trial judge instruct the jury that they had to find, beyond a reasonable doubt, that the appellant’s penis had penetrated the prosecutrix’s sexual organ, even coupled with the defensive evidence of impotency, did not put the trial judge on notice that the appellant desired an instruction on attempted rape. Also, we are not aware of whether the appellant consciously chose not to submit a requested instruction on attempted rape in the hope that the jury would believe his impotency defense and acquit him. This is not one of those situations where the appellant’s counsel’s failure to act cannot be classified as trial strategy. Cf. Ruth v. State, 522 S.W.2d 517, 519 (Tex.Cr.App.1975) (Morrison, J., concurring). Fundamental error is not shown. Cf. Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). Appellant’s ninth contention is overruled.

The appellant’s tenth contention is that the prosecutor went outside the record during his final argument at the guilt or innocence stage by stating:

“You know things have changed in the last few years. Twenty years ago people didn’t even have locks on their doors. People who grew up around here, you would go to people’s houses, nobody locked their doors, and now what happens when you go to somebody’s house at night? Knock on the door. You are going to sit there and wait three or four minutes while they come and look through the peephole. Then unlock the chain, then undo the dead bolt.”

The following then occurred:

“[Appellant’s Counsel]: I object to this line of argument. It is completely outside the record and I would object to it. If we could confine ourselves to the record I think we could speed this up, and I object to his going outside.
[Prosecutor]: May I proceed?
“THE COURT: You may.”

It is plain that the appellant did not obtain an adverse conclusory ruling. Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974). Nothing is before us for review. Appellant’s tenth contention is overruled.

The appellant’s eleventh through eighteenth grounds of error concern the hearing held on the appellant’s amended motion for new trial. Since we have previously held that the trial court lacked jurisdiction to hear the motion, it is clear that the hearing on the amended motion for new trial was not authorized and any errors which occurred during it are not properly before us. Appellant’s grounds of error eleven through eighteen are overruled.

The judgment is affirmed.

ROBERTS, Judge,

concurring in part and dissenting in part.

I agree with the results reached by the majority. However, I dissent to the method used to dispose of appellant’s second ground of error.

At the outset, I note that the appellant was convicted on January 23, 1976. Thus, the appellant had ten days in which to file a motion for new trial and motion in arrest of judgment. Articles 40.05 and 41.02, Vernon’s Ann.C.C.P. The appellant had until Monday February 2, 1976, to file these motions.

However, the appellant did not file his motion for new trial until February 4,1976. The untimely motion for new trial was expressly overruled on February 5, 1976.

On February 9,1976, an amended motion for new trial was filed. A hearing was held on that untimely filed amended motion for new trial on March 18, 1976.

The essential question is whether the trial judge’s action in expressly overruling the appellant’s untimely filed motion for new trial deprived the trial judge of the power to grant the appellant leave to file an amended motion for new trial.

Article 40.05, Vernon’s Ann.C.C.P., states:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed. Such motion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be determined by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal. . . .” (Emphasis added.)

In Clopton v. State, 563 S.W.2d 930 (Tex.Cr.App.1978), the defendant timely filed an original motion for new trial. Twenty days thereafter, the original motion for new trial was overruled by operation of law. Thereafter, a second motion for new trial was filed. This Court there held that despite the fact that the original motion for new trial had been overruled by operation of law the trial judge had the power to consider a second motion for new trial and that the record did not have to reflect that the trial judge found that good cause existed for the untimely filing of the second motion for new trial.

A different situation is presented in this appeal. Two factors significantly distinguish the present case from Clopton: (1) Unlike Clopton, the first motion for new trial was not timely filed; and (2) unlike Clopton, the trial judge expressly overruled the first motion for new trial.

It is clear that unlike Clopton the trial judge did affirmatively rule on the appellant’s original motion for new trial within twenty days after it was untimely filed. In light of the language of Article 40.05, Vernon’s Ann.C.C.P., and the distinctions between the present case and Clopton, I would hold that the trial judge’s express ruling on the original untimely filed motion for new trial deprived him of the power to grant the appellant leave to file an untimely amended motion for new trial. For this reason I would overrule appellant’s second ground of error.

      . V.T.C.A., Penal Code Section 21.02(b)(1).

      . By this time Gilbreath and the other occupant of the car had left the immediate vicinity.

      . The amended motion for new trial was filed on February 9, 1976. The hearing on the amended motion for new trial was not held until thirty-eight days later.

      . We also note that the State could properly elicit the fact that the witness was related to the appellant so as to attempt to show the witness’ bias. Cf. Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977).

      . The appellant has couched his ground of error in terms that the trial judge erred by failing to rule on the objection. A trial judge has an obligation to rule on objections, but defense counsel likewise have an obligation to press the trial judge to definite ruling on the objection.