text:
    Daniel Charles BATES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10959.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 9, 1979.
    Charles F. Johnson, Buffalo, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Chief Judge.

Movant Daniel Charles Bates appeals from a denial after evidentiary hearing of his motion to set aside a judgment and sentence for statutory rape and to withdraw his guilty plea. The judgment was entered in 1975 and the punishment imposed was 15 years’ imprisonment. Following the motion hearing, held in 1977, the court made findings of fact and conclusions of law, Rule 27.26(i), and denied the motion.

Movant’s “point relied on” is that the trial court erred in finding that the plea of guilty was voluntary. That finding, argues movant, was improper for two independent reasons: (a) Ineffective assistance of counsel was rendered by John Hosmer, the attorney who represented movant at the plea hearing; (b) The plea was entered by mov-ant “out of fear” and without his understanding of its consequences.

The motion is a “combined motion under Rules 27.25 and 27.26.” Vaughan v. State, 579 S.W.2d 721, 722 (Mo.App.1979); Bonner v. State, 535 S.W.2d 297, 298 (Mo. App.1976). An application made pursuant to Rule 27.25 after imposition of sentence is an attack upon the validity of the sentence within the meaning of Rule 27.26 and the procedure to be followed is that set out in Rule 27.26. Bradley v. State, 564 S.W.2d 940, 942[2] (Mo.App.1978).

The burden of proof was upon movant to establish his grounds for relief by a preponderance of the evidence. Rule 27.26(f). The weight of the evidence and credibility of the witnesses are matters for the trial court, Shoemake v. State, 462 S.W.2d 772, 775[2] (Mo. banc 1971), and the trial court may reject testimony offered on behalf of the movant even if there was no contrary evidence. Bibee v. State, 542 S.W.2d 540, 542[4] (Mo.App.1976). Appellate review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j).

At the motion hearing movant testified that while he was a prisoner in the Polk County jail, prior to the entry of the guilty plea, he was “gassed with mace” by Deputy Sheriff Miller; that there was a delay in his obtaining medical help for running sores which broke out over his face; that the deputy sheriff told movant that if he did not plead guilty movant “would get the hell beat out of me.” On cross-examination movant admitted that no one, including the deputy sheriff, ever struck him and that on the occasion when movant was “maced,” there was a disturbance in the jail.

One of movant’s witnesses, a fellow prisoner, testified that during movant’s incarceration movant was not threatened nor was movant the object of physical violence. Sheriff Glen Carson and Deputy Sheriff Miller, both called as witnesses for movant, denied threatening movant or coercing his plea. Miller admitted macing movant but said he did so because movant was causing the disturbance.

Movant testified: “My complaint about inadequate representation is that we did not have time to discuss it before I went in front of the judge.” Movant also testified that attorney Hosmer “did not spend any time with me” and that Hosmer “spent approximately 15 minutes with me at the jail.”

Before accepting movant’s plea of guilty the court meticulously complied with the procedure outlined in Flood v. State, 476 S.W.2d 529, 535 (Mo.1972).

The transcript of the guilty plea hearing refuted most of the testimony adduced by movant at the motion hearing. At the plea hearing attorney Hosmer several times stated on the record that he had advised movant not to plead guilty.

At the plea hearing movant informed the court that no one had threatened or intimidated him in any manner to cause him to enter a plea of guilty; that he had not been mistreated in any manner by any law enforcement officer; that he had discussed the matter on four occasions with attorney Hosmer and did not want additional time for further discussion; that he had told Hosmer all of the facts and that he was satisfied with Hosmer’s representation and advice.

The trial court, in denying the motion, found and concluded that although movant had refused to take attorney Hosmer’s advice, the plea of guilty was a voluntary one, made understanding^ and knowingly and with sufficient legal counsel. The trial court further found that the plea was not procured “through coercion, duress, intimidation, or harassment” and was “not the product of physical abuse or threats.”

In Cain v. State, 575 S.W.2d 893 (Mo.App. 1978), a Rule 27.26 proceeding; movant claimed that his plea of guilty was coerced by reason of the conditions of his imprisonment. The court of appeals, in affirming the judgment'of the trial court denying the motion, pointed out at p. 896 that it was incumbent upon the movant to show, by a preponderance of the evidence, “that the condition of imprisonment of which he complains rose to the level of cruel and unusual punishment. If that requirement is satisfied, he is then met with the problem of sustaining the heavy burden of proof to establish that the coercive nature of the prison conditions was directly related to the root decision to plead guilty.” To similar effect see Peck v. State, 467 S.W.2d 884 (Mo.1971), (a case where the plea of guilty was entered against the advice of counsel.)

The findings, conclusions and judgment of the trial court are not clearly erroneous. Babcock v. State, 485 S.W.2d 85 (Mo.1972); Noble v. State, 552 S.W.2d 267 (Mo.App. 1977). Indeed they are fully supported by the record.

The judgment is affirmed.

All concur, except PREWITT, J., not participating because not a member of the court when case was submitted.

      . All references to rules are to Missouri Rules of Court, V.A.M.R.


source: Caselaw Access Project

author: FLANICAN, Chief Judge.

license: Public Domain

text:
    Joseph F. MUELLER, Plaintiff-Respondent, v. Floyd M. PITTARD, Sr., Defendant-Appellant, v. Thomas SKAGGS and Doris Skaggs, Defendants.
    No. 10721.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 9, 1979.

      Morton K. Lange, Cuba, for defendant-appellant.
    Maurice W. Covert, Houston, for plaintiff-respondent.
   FLANICAN, Chief Judge.

This case involves a road dispute. Plaintiff Mueller is the owner of land which lies adjacent to and north of the land owned by defendant Pittard. The land of defendants Skaggs lies west of and adjacent to the Pittard land. A road connects Texas County Highway Y with State Highway 137 and in so doing crosses the respective lands of each of the parties. The portion of the road which is in dispute is that which crosses the Skaggs land and the Pittard land. The Skaggs segment is approximately a quarter of a mile long and the Pittard segment is approximately three quarters of a mile long.

The petition alleged that the defendants had erected obstructions on the disputed portion and sought an injunction requiring the removal of the obstructions and prohibiting further obstructions.

Defendants Skaggs defaulted and the case proceeded to trial on the issues framed by the petition and the answer of defendant Pittard. The trial court found the issues in favor of plaintiff. The decree stated that plaintiff “has a right of easement over and across defendants’ lands, consisting of a strip of land 30 feet wide, following the course established by the roadway described in plaintiff’s petition and the defendants, their servants, agents, and employees, and all persons acting for or by them, are enjoined from interfering with plaintiff’s full enjoyment of the easement.”

Defendant Pittard appeals.

Defendant’s first contention is that the trial court erred in decreeing that plaintiff had a “right of easement” across the disputed portion for the reason that the petition was not based on the theory of “easement” but was based on the theory that the disputed portion was “a public road.”

The petition, which was not attacked by motion, is lengthy. Some of the facts alleged in it lend support to alternative and perhaps inconsistent theories as predicates for plaintiff’s request for injunctive relief. Missouri procedure permits a pleading to possess the traits of alternativity and inconsistency. Rule 55.10.

Defendant concedes that the petition adequately pleaded that the disputed portion was “a legally established road” within § 228.190 which reads, in pertinent part, “All roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads.”

The allegations of the petition, however, are not confined to the claim based on § 228.190. The petition also contains the following: “Said road has been used by the plaintiff and his predecessors in title and by the public generally, openly and notoriously, for a period of more than 50 years; defendants and their predecessors in title, by allowing the plaintiff ... to use said road, have intended thereby to dedicate said road to the plaintiff . . . and have dedicated and allowed the use of said road by the plaintiff and his predecessors in title, in excess of ten years, whereupon an easement has arisen ... to and in the plaintiff . . . and by reason of said, facts, defendants are estopped from denying the plaintiff . . . the use thereof; said [road] affords to the plaintiff the only means in ingress and egress to and from his property.”

In Day v. Grisham, 571 S.W.2d 473 (Mo. App.1978) the petition sought, and the court granted, a declaration of easement by prescription over defendants’ land. Defendants contended that the judgment was beyond the scope of the pleadings in that the petition did not allege “continuous, uninterrupted, visible and adverse use.” The court of appeals, in rejecting defendants’ contention, pointed out that the petition did allege that for over 30 years plaintiffs and their predecessors in title had used the 20 foot roadway across defendants’ land as their only means of access. The court said, at p. 474: “We find that facts stated in plaintiffs’ petition are sufficient to inform defendant with reasonable certainty of the cause of action they were called upon to meet and to bar another action for the same subject matter.”

The instant petition includes, but is not limited to, allegations held in Day to be sufficient to constitute a pleading based on the theory of “easement by prescription.” Defendant’s first contention has no merit for the reason that it proceeds on the invalid assumption that the petition failed to allege sufficient facts to invoke the theory of “easement.”

Defendant’s second contention is that the trial court erred in decreeing that plaintiffs had a “right of easement” over defendant’s land because there was no proof that the alleged use by plaintiff and his predecessors “was continuous, uninterrupted, visible and adverse under a claim of right for the statutory period of ten years.”

In Guerin v. Yocum, 506 S.W.2d 46 (Mo. App.1974) the plaintiff sought injunctive relief against defendant’s blocking of a road which plaintiff used for access to his land and which crossed defendant’s land. The trial court granted the relief and this court affirmed the decree. The petition, in asserting plaintiff’s claim to the use of the road, based that claim upon the alternative theories of easement by prescription and the existence of a legally established road “by reason of public use and expenditure of public money or labor pursuant to § 228.-190.” The trial court granted the injunc-tive relief on the theory of “easement.” This court held that the judgment of the trial court required affirmance if the plaintiff was entitled to relief under either theory. This court held that the evidence was sufficient to sustain the finding of “easement of roadway” and further stated: “[W]e express no opinion as to whether the road is a private road by prescription or a public road by prescription ... we conclude only that plaintiff’s right to use the road has been invaded by obstructions placed by defendant . . . ”

As pointed out in Guerin, the trial court was justified in granting injunctive relief if the evidence supported either of the alternative theories — “easement by prescription” or “legally established road” under § 228.190 — pleaded by the petition.

Defendant does not contend that the evidence was insufficient to show that the disputed portion was “a legally established road” under § 228.190. A gratuitous review of the record shows that the evidence was sufficient to entitle plaintiff to relief under that theory. The evidence was of the type adduced in Wilson v. Sherman, 573 S.W.2d 456, 458 (Mo.App.1978). The establishment of a public road under § 228.190 is a method separate and distinct from establishment by prescription and if the evidence is sufficient to satisfy the requirements of § 228.190, there is no need to determine whether it meets the requirements of an alternate method for the establishment of a public road, Wilson, p. 459, or a private road, Guerin, p. 48.

Although defendant concedes, at least tacitly, that the evidence was sufficient to show that the disputed portion was a legally established road under § 228.190, defendant contends that the road was abandoned. The claim of abandonment is not contained in defendant’s “points relied on” and there is authority to the effect that the contention, relegated to the argument portion of the brief, will not be considered on appeal. Nutz v. Shepherd, 490 S.W.2d 366, 372[12] (Mo.App.1973). (Citing authorities.)

Defendant’s answer had not pleaded abandonment. Defendant did not testify and his sole witness did not offer evidence supporting a finding of abandonment. “One asserting abandonment of a public road must carry the burden . of showing such abandonment by clear and cogent proof.” Connell v. Baker, 458 S.W.2d 573, 577 (Mo.App.1970). Defendant seeks to rely upon portions of plaintiff’s evidence to support his argument of abandonment. The testimony is disjointed and lacking in clarity. It does not constitute “clear and cogent proof” of abandonment, nor did plaintiff’s proof include the quality of evidence, respecting abandonment, required by such authorities as Johnson v. Rasmus, 237 Mo. 586, 592, 141 S.W. 590, 591 (1911); County of Bollinger v. Ladd, 564 S.W.2d 267, 270 (Mo.App.1978); and Connell v. Baker, 458 S.W.2d 573, 577 (Mo.App.1970). See also Hedges v. County Court for Ray County, 581 S.W.2d 73, 78 (Mo.App. 1979).

Defendant’s second contention has no merit for the reason that even if, which need not be determined, the alleged eviden-tiary deficiencies in fact existed, the injunc-tive relief granted by the decree is otherwise supported by the evidence.

Defendant’s third point is that the trial court erred, in decreeing that the disputed portion of the road consisted “of a strip of land 30 feet wide.” There is merit in this contention. Although the petition pleaded that the disputed portion of the road was “approximately 30 feet in width,” plaintiff adduced no evidence in support of that allegation. Defendant’s evidence was that the road was narrower than 30 feet.

As was the situation in Connell v. Baker, supra, 458 S.W.2d 573, 578, there was no surveyor’s description of the disputed portion of the road in the petition, the evidence or the decree. The petition did not request a declaration of an “easement.” The petition did describe the disputed portion of the road as “running from the south line of plaintiff’s land to the said County Road (Y) and following the ridge line, and following a course from plaintiff’s land to the said County Road (Y).” In Connell this court, in affirming the decree for the plaintiffs, said:

“But no such description was essential to the injunctive relief sought and granted, for nothing in the record indicated that plaintiffs or defendants have any difficulty in recognizing and following the route of ‘the old road’ or ‘the roadway as it now runs’ across defendants’ tract, plaintiffs did not seek establishment and location of an easement over a precisely-demarcated and legally-described strip . . . and the injunctive decree sought and rendered operates in personam . . . and does not run with the land.” (Citing authorities.)

In the case at bar there is nothing in the record to indicate that plaintiff or defendants will have any difficulty in “recognizing and following” the disputed portion of the road.

That portion of the trial court’s decree containing the language, “consisting of a strip of land 30 feet wide” is deleted. As modified by that deletion, the judgment is affirmed.

All concur.

      . The decree of the trial court contained an additional provision permitting, conditionally, the placement of cattleguards or gates across the roadway in such manner as not to interfere with plaintiffs full use of the easement. Plaintiff, respondent in this court, has made no objection to the inclusion of that provision.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R. and all references to statutes are to RSMo 1969, V.A.M.S.

      . In Drydale v. Kiser, 413 S.W.2d 506 (Mo. 1967) it was held that the creation of a legally established road under § 228.190 was valid although the road was only 18 to 20 feet wide and although § 229.010 provides that “[a]ll public roads in this state which hereafter may be established shall not be less than [30] féet in width.”


author: PREWITT, Judge.

text:
    Danny D. HAYES, Plaintiff-Appellant, v. REORGANIZED SCHOOL DISTRICT NO. 4 of Ozark County, Missouri, and Jerry Bean, Joe Arnold, Jim Shaufler, Ed. V. Bridges, Etsel Johnson and Guy Johnson, Directors of the Board of Education of the R-4 School District of Ozark County, Missouri, Defendants-Respondents.
    No. 11208.
    Missouri Court of Appeals, Southern District, En Banc.
    Nov. 9, 1979.
    Harold L. Henry and Don M. Henry, Henry, Henry & Henry, West Plains, for plaintiff-appellant.
    Richard T. Martin, Gainesville and Kenneth A. Wagoner, Moore & Brill, West Plains, for defendants-respondents.
   PREWITT, Judge.

Plaintiff appeals after a jury verdict and subsequent judgment against him in this replevin action for possession of a 60 foot X 40 foot trailer. He claims error in the introduction of evidence and in an instruction tendered by defendants.

Plaintiff was the titled owner of the trailer. In September of 1972, he entered into an oral arrangement with defendants for the lease and purchase of the trailer. The only dispute in the evidence regarding this agreement was the total price to be paid. Annual payments were made by the school district to plaintiff in 1972,1973, and 1974. Thereafter, the parties entered into the following document [signatures omitted]:

“CONTRACT
This contract, made and entered into this 9 day of July, 1975, by and between Danny D. Hayes, Construction Contractor, and the Board of Education of the Bakersfield School District No. RIV County of Ozark, State of Missouri. The Contractor, Danny D. Hayes agrees to rent a 1972 Model 60' X 14' Markwood two-classroom Mobil Unit to the Bakersfield R-IV School District for a period of 12 months beginning July 1, 1975 and ending June 30, 1976.
The rent to be paid for this unit shall be $900.00 per year for each classroom making a total yearly payment of $1800.00 per year for the unit.
This contract entered into and approved this 9th day of July, 1975”.

The only evidence pertaining to this document, other than that it was entered into, related to defendants not making any payment on it. In September of 1975, plaintiff appeared at a school board meeting of defendants and demanded the rent payment. He was told he would receive it if he gave defendants the “title, wheels and axle”. Apparently plaintiff did not do this and on October 17,1975, he wrote the school board, demanded $1,800, and said that if it wasn’t paid by November 15, 1975, he would remove the trailer from the school property. No payment was made and on January 27, 1976, plaintiff filed his “petition in replev-in”.

Defendants contend that plaintiff failed to make a submissible case and that their motion for a directed verdict at the close of all the evidence should have been sustained because defendants were entitled to possession under the “contract” as a matter of law. We should first determine if a sub-missible case was made, as if not, the alleged trial errors become immaterial and the judgment for defendants should be affirmed. Stuyvesant Insurance Group, Inc. v. Anderson, 547 S.W.2d 171, 172 (Mo.App. 1977); Stephens v. Great Southern Savings & Loan Association, 421 S.W.2d 332, 334 (Mo.App.1967).

Defendants had possession of the trailer at the time suit was filed. They contend that their possession was lawful and plaintiff failed to show that he was entitled to possession when he commenced this action. Replevin is a possessory action and plaintiff must prove his right to possession of the property at the time the suit was filed. Fawley v. Bailey, 512 S.W.2d 477, 479 (Mo.App.1974); Wilks v. Stone, 339 S.W.2d 590, 594 (Mo.App.1960).

Plaintiff contends that because the “rent” provided for in the “contract” was not paid, the agreement was breached, and he had a right to terminate it and take possession at the time of the suit. Plaintiff does not contend that prior to that alleged termination defendants had no right of possession nor that there was other breach, anticipatory or otherwise, or repudiation of the “contract”. The burden of proving breach of a contract rests on the party claiming the breach. Equity Mutual Insurance Company v. Affiliated Parking, Inc., 448 S.W.2d 909, 912 (Mo.App.1969); Home Trust Co. v. Shapiro, 228 Mo.App. 266, 64 S.W.2d 717, 726 (1933). Even if we assume that an owner has a right to take possession of a chattel from another for untimely payment of rent without that right being an express part of their agreement, this does not establish that plaintiff here was entitled to possession at the time of suit. The document has no provision as to when payment is to be made. Under the prior oral agreements, payments were made in September and October. However, there was no evidence that this time of payment was agreed to or was to be continued after the “contract”, nor evidence as to when the payment under it was to be made. When parties reduce their agreement to writing, it is presumed that the instrument contained their entire contract. Conservative Federal Savings and Loan Association v. Warnecke, 324 S.W.2d 471, 478 (Mo.App. 1959). We should not enlarge or extend the agreement. Id. 324 S.W.2d at 480. Nothing is before us to indicate that the writing was not their entire agreement and, if it was, they did not agree on a time for the rent payment.

In the absence of a different agreement, rent accrues and becomes due at the end of the term. Bashor v. Turpin, 506 S.W.2d 412, 421 (Mo.1974); Ridgley v. Stillwell, 27 Mo. 128, 134 (1858); Ostner v. Lynn, 57 Mo.App. 187, 191 (1894). No such agreement having been shown, the rent was not due until the end of the term, and there was no default in the payment of rent at the time of suit. No right to terminate the “contract” for nonpayment could have occurred at that time. Defendants had lawful possession of the trailer and plaintiff failed to show he was entitled to possession on the date of filing suit. This was a necessary element of plaintiff’s case. Fawley v. Bailey, supra, 512 S.W.2d at 479. As plaintiff failed to make a submissible case, no point is served in considering the alleged trial errors and the judgment for defendants should be affirmed.

The judgment is affirmed.

All concur, except FLANIGAN, C. J., re-cused and HOGAN, J., recused and taking no part in the consideration or decision of the appeal.


author: PER CURIAM:

text:
    Donna L. RAINES (Norbeck), Plaintiff-Appellant, v. Carroll F. RAINES, Defendant-Respondent.
    Nos. 11152, 11153.
    Missouri Court of Appeals, Southern District, En Banc.
    Nov. 9, 1979.
    Daniel R. Devereaux, Devereaux & Stokes, St. Louis, for plaintiff-appellant.
    Kerry Koboldt, Rolla, for defendant-respondent.
   PER CURIAM:

We are once again confronted with a motion to dismiss the consolidated appeals from orders of the Circuit Court of Phelps County in a proceeding for modification of the child custody provisions of a divorce decree. A previous appeal was dismissed on the ground that the orders in question lacked sufficient finality for appeal. Raines v. Raines, 567 S.W.2d 459 (Mo.App.1978). For the reasons hereinafter stated, we find the present appeal to be subject to the same infirmity.

On February 9, 1978, the trial court entered an order directing appellant to surrender temporary custody of Jerry Randolph Raines to respondent Carroll F. Raines on June 15, 1978, and ordering respondent to pay $100 per month child support. On February 10, 1978, the court set aside, sua sponte, that portion of its order relating to child support. In our previous opinion, this court found that the composite effect of the two orders was to announce that the motion to modify was under advisement and that respondent was to have temporary custody of the child until August 21, 1978.

As noted, appellant’s first appeal from the temporary custody order was dismissed for lack of finality on May 31,1978. Thereafter, upon appellant’s failure to deliver custody of the child to respondent on June 15, 1978 as ordered, and her failure to appear in response to a show cause order, the trial court, on July 26,1978, issued an order directing the sheriff to apprehend appellant and bring her before the court.

Appellant has again filed a Notice of Appeal from the orders of February 9,1978 and February 10, 1978, and a separate Notice of Appeal was filed from the order of July 26, 1978. This court has, on its own motion, ordered these appeals consolidated.

Turning first to the appealability of the temporary custody order, appellant contends that it became a final order upon the expiration of the temporary custody period on August 21, 1978. This contention is without merit. The original motion to modify the divorce decree is still before the trial court; it has not been ruled upon. A temporary child custody order executed prior to ruling on the motion to modify the permanent custody provisions of a divorce decree lacks sufficient finality to support appellate review. Lipschitz v. Smith, 459 S.W.2d 17, 18 (Mo.App.1970).

The order of July 26, 1978, which both parties have treated as a citation for contempt, directs the Sheriff of Phelps County to “apprehend the said Donna L. [Raines] Norbeck and produce the body of her before this court to be dealt with according to law.” (Emphasis ours). The order does not adjudge appellant guilty of contempt; indeed, the order is directed to the County Sheriff. Neither does the order purport to fix punishment by fine or commitment. It refers to appellant as the subject of some future action by the court. A decision of the court convicting a party of civil contempt, and imposing upon her a punishment therefor, is an appealable judgment. In re Blankenship, 553 S.W.2d 307 (Mo.App.1977). The order of July 26, 1978 does not meet these requirements; it does not finally dispose of all the issues and all of the parties to the proceeding. In the Matter of Little Chariton Drain. Dist., Chariton Cty., 555 S.W.2d 77 (Mo.App.1977).

The orders in this case do not constitute a final, appealable judgment. Therefore, this court has no jurisdiction to consider the appeal and it should be dismissed. Caudle v. Kelley, 545 S.W.2d 427 (Mo.App.1976). It is so ordered.

All concur.


author: PER CURIAM.

text:
    Shorty Ray LEWIS, Petitioner, v. ILLINOIS EMPLOYERS INSURANCE COMPANY et al., Respondents.
    No. B-8553.
    Supreme Court of Texas.
    Oct. 31, 1979.
    Tonahill & Hile, Joe H. Tonahill, Jasper, for petitioner.
    Boswell, O’Toole, Davis . & Pickering, Mark T. Price and Susan Crowley, Houston, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The court of civil appeals has reversed the judgment of the trial court that had rendered a default judgment for the plaintiff, Shorty Ray Lewis, after striking the defendants’ pleadings as a sanction for their failure to answer interrogatories. 582 S.W.2d 242. Plaintiff Lewis filed suit on June 6, 1978, and then filed a request for admissions which were answered and filed ten days after the request. Plaintiff then served defendants with written interrogatories on July 14, but the defendants did not file their answers by August 13. See Rule 168, Tex.R.Civ.P. On August 28, plaintiff filed a motion that the trial court strike defendants’ pleadings and render default judgment for the plaintiff. On September 1, 1978, the defendants filed their answers, but the trial court, on the same day but after the answers were filed, granted plaintiff’s motion to strike defendants’ pleadings and then rendered a default judgment in favor of the plaintiff.

Upon this state of the facts, the court of civil appeals held that the trial court abused its discretion. We approve that holding, but disapprove the broad dictum of that court that the sanctions authorized by Rule 215a(c) can be invoked only upon a party’s (1) filing a motion to compel answers to interrogatories, (2) which is followed by a court order which requires the answers, and (3) a failure to comply with that court order.

Rule 168 requires such a procedure in the instance of one’s failure to answer particular interrogatories. When, however, a party wholly fails to answer any of the interrogatories, the propounding party may immediately move for the imposition of sanctions without first seeking and obtaining an order from the court requiring answers to interrogatories. This distinction between one’s failure to answer particular interrogatories and one’s complete failure to make answers is found in Rule 168.

If a party refuses to answer any interrogatory, the proponent of the question may, upon reasonable notice to all persons affected, apply to the court in which the action is pending for an order compelling an answer. Reasonable expenses, including reasonable attorney’s fees, incurred in obtaining the order or opposing the motion may be assessed, and a refusal to comply with the order shall authorize the court to act, as provided in paragraphs (a) and (b) of Rule 215a.
If a party, except for good cause shown, fails to serve answers to interrogatories after proper service of such inter-. rogatories, the court in which the action is pending may, on motion and notice, make such orders as are just, including those authorized by paragraph (c) of Rule 215a.

The application for writ of error is accordingly refused, no reversible error. Rule 483, Tex.R.Civ.P.


text:
    STATE of Texas, Petitioner, v. U. T. L. AERONAUTICS, INC., Respondent.
    No. B-8756.
    Supreme Court of Texas.
    Nov. 21, 1979.
    Henry Wade, Dist. Atty., Charles Bowling and Giles E. Miller, Asst. Dist. Attys., Dallas, for petitioner.
    Andrew R. McCulloch, Dallas, for respondent.
   PER CURIAM.

The State of Texas sued U.T.L. Aeronautics, Inc., for delinquent personal property taxes and recovered a judgment for $1,016.26 plus costs. To satisfy this judgment, a writ of execution issued, but it was returned nulla bona. Believing that U.T.L. Aeronautics owned sufficient property to pay the judgment, the State, pursuant to Rule 737, Tex.R.Civ.P., brought a bill of discovery suit, in which it sought the right to examine U.T.L. Aeronautics upon oral interrogatories to determine the nature and location of all of U.T.L. Aeronautics’ property.

The State later moved the trial court to dismiss the bill of discovery suit without prejudice. The trial court granted the motion, but it ordered that the costs of the discovery suit be taxed against the State. The State appealed this order to the court of civil appeals for the Seventh Supreme Judicial District. That court affirmed. 584 S.W.2d 46.

Article 7297, Tex.Rev.Civ.Stat.Ann., exempts the State from liability for all costs growing out of a suit to recover taxes. It provides:

The district or county attorney . shall institute suit in the name of the State for the recovery of all money due the State and county as taxes due and unpaid on unrendered personal property . . The State and county shall be exempt from liability for all costs growing out of such action. * * *

The court of civil appeals held that the costs arising out of the bill of discovery suit did not grow out of the suit to recover taxes. It is our opinion that the State’s action grows out of and is grounded upon its judgmént in the prior suit for taxes and relates solely to the enforcement of that judgment. But for the prior judgment, there would be no basis for the State’s bill of discovery suit. The judgment of the court of civil appeals is contrary to article 7297.

We grant the application for writ of error; and, without hearing oral argument, we reverse the judgments of the trial court and of the court of civil appeals and render judgment exempting the State from bearing the court costs of its bill of discovery suit. Rule 483, Tex.R.Civ.P.


author: TOM G. DAVIS, Judge. DOUGLAS, Judge,

text:
    Jesse Castillo OROSCO, Appellant, v. The STATE of Texas, Appellee. (two cases).
    Nos. 56876 thru 56878.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.
    Rehearings Denied Dec. 12, 1979.

      Warren E. Hancock, Jr. and W. W. Kil-garlin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Frank Harmon, Asst. Dist. Attys., Houston and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeals are taken from convictions for aggravated rape, aggravated robbery, and forgery. V.T.C.A. Penal Code Secs. 21.03, 29.03, and 32.21. Punishment was assessed at 40 years for the aggravated rape, 15 years for the aggravated robbery, and five years for the forgery.

All three offenses were tried together, and are all related to a single incident involving the prosecutrix.

The prosecutrix testified that on the day of the alleged rape and robbery she had taken one of her children to school, stopped at a convenience store to use a pay phone, and finally returned home. She testified that she used her car as transportation to and from each of the above places.

Later that morning at about 10:30 a.m., she answered a knock at her door. She went to the door and saw the appellant standing outside. The doorway was secured only by a locked screen at the time of the incident. She testified that the appellant asked to come in, but she refused.

According to the prosecutrix, the appellant then took a knife from his pocket and exposed the blade, again requesting entry. She unlocked the door, and the appellant entered, putting the knife away. The knife was not seen by the prosecutrix again.

The appellant requested a glass of water, which the prosecutrix got for him. He then grabbed her and told her he wanted to make love. The prosecutrix testified that she nudged away but did not escape his grip. He told her to go upstairs.

The prosecutrix testified that once upstairs the appellant told her to take her clothes off, and to lie down on the bed. He then took his clothes off and had intercourse with the prosecutrix.

After they dressed the appellant asked if she had any money, to which she replied no. They then went downstairs, and the appellant said he was “going to take something.” He unplugged her television and told her to go upstairs. When she returned downstairs, the appellant was gone, as was her television and checkbook.

The prosecutrix then drove to her husband’s place of employment. Co-workers of her husband called the police, and she was taken to the hospital and examined. She testified that the examination revealed semen in her vagina. The prosecutrix further testified that she was not the appellant’s wife, did not consent to the intercourse, and submitted because she was afraid.

On cross-examination, she stated that she was separated from her husband at the time of the offense and was in the process of getting a divorce. She also related that some three months before the incident she had overdosed on sleeping pills.

An employee of a Houston supermarket testified that on the day following the above events she cashed a check drawn on the prosecutrix’s account for fifty dollars. Although this employee was unable to remember who had cashed the check, the witness did identify the check as the one cashed by her.

The signature on the check purported to be the prosecutrix’s. The prosecutrix, however, testified that she had not signed the check. The check was endorsed in the name of the appellant.

A handwriting expert for the Houston Police Department testified that he compared samples of handwriting taken from the appellant with the endorsement on the check. The officer found that both the endorsement and the handwriting samples had been made by the same person.

The appellant took the stand in his own behalf. He testified that he first saw the prosecutrix at the convenience store and she asked him for a ride downtown. He stated that when he replied that he had no car the prosecutrix then asked him to come to her house. He went to her house and while there, according to his testimony, engaged in a consensual act of intercourse.

Appellant further testified that the pros-ecutrix gave him the television set and a blank check and invited him to come back some other time. Appellant specifically denied threatening the prosecutrix or even possessing a knife on the day in question.

The appellant admitted to cashing the check at the supermarket, and that he signed both his name and the prosecutrix’s name on the check. He maintained that the prosecutrix had given him the check as he left her house and had not signed it because she had no pen. On cross-examination, the appellant admitted that he knew the check was forged.

The appellant’s employer testified to his good reputation for truth and veracity.

Each of appellant’s seven grounds of error is in effect a challenge to the sufficiency of the evidence. The record reveals another issue, however, which requires consideration' in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P. We must determine whether the convictions for aggravated rape and aggravated robbery of a single victim arising out of the same facts and occurring in the same transaction are in violation of the double jeopardy clauses of the state and federal constitutions.

In Tatum v. State, 534 S.W.2d 678, this Court was faced with a situation almost identical with the present one. The defendant had pled guilty to the offenses of aggravated sexual abuse, aggravated rape, and aggravated robbery. The record in Tatum revealed that all three offenses were committed against the same person in the same transaction. The Court held that the convictions for all three offenses violated the double jeopardy clauses of both the state and federal constitutions, and reversed two of the three convictions.

In Hawkins v. State, 535 S.W.2d 359, this Court reviewed numerous cases concerning double jeopardy and carving. The Court found that double jeopardy attached when multiple offenses had arisen from “an uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim.” 535 S.W.2d at 362. See, Uribe v. State, Tex.Cr.App., 573 S.W.2d 819.

In the present case, the initial display of the knife, coupled with the appellant’s continued possession of the knife, must provide the aggravating circumstances in both the rape and the robbery. The appellant’s initial assault with the knife continued throughout the episode. His acts were an uninterrupted and continuous assaultive act against a single victim. Conviction for both the rape and the robbery is violative of the double jeopardy clauses of both the state and federal constitutions.

Appellant was indicted in Cause No. 245,097 for the aggravated rape (Our Cause No. 56,876). The indictment for aggravated robbery shows it is Cause No. 245,179 (Our Cause No. 56,877). The record does not reflect which judgment was entered first,. therefore we will apply the rule in Ex parte Calderon, Tex.Cr.App., 508 S.W.2d 360. We assume that the judgment in the lowest cause number was entered first. Thus, appellant’s subsequent conviction in Cause No. 245,179 for aggravated robbery is reversed.

Appellant contends that the evidence was insufficient to support his conviction for aggravated rape. He maintains that the evidence was insufficient to prove the aggravating circumstances and to show a lack of consent by the prosecutrix.

In Rogers v. State, 575 S.W.2d 555, this Court was faced with a challenge to the sufficiency of the evidence to support a finding of aggravating circumstances in a rape case. This Court observed that when a gun or knife was used to compel submission the evidence is sufficient to prove the aggravating circumstances under Sec. 21.03, supra.

In the present case, the prosecutrix testified that the appellant displayed a knife to gain entry after her initial refusal. Even after this weapon was out of sight, the threat of its use continued. We find the evidence sufficient to support the finding of a threat of death or serious bodily injury.

Further, the prosecutrix’s testimony is sufficient to support a finding that the sexual intercourse was without her consent and that she submitted because of force and threats. Twomey v. State, Tex.Cr.App., 520 S.W.2d 784.

Finally, appellant contends that the evidence was insufficient to support the forgery conviction. Appellant maintains that, although the prosecutrix testified that she did not sign the check, there is no evidence that she did not authorize the appellant to sign the check.

The appellant is correct in his assertion that the prosecutrix never testified that she did not authorize someone else to sign the check. She did testify, however, that the checkbook was taken without her permission and that she did not sign the check. This testimony, coupled with the appellant’s admission that he signed the prosecutrix’s name to the check and knew it was forged, is sufficient to support a finding that the prosecutrix did not authorize the signature on the check. See and cf. Payne v. State, Tex.Cr.App., 567 S.W.2d 4; Reed v. State, Tex.Cr.App., 533 S.W.2d 35.

We hold that the evidence was sufficient to support the convictions for aggravated rape and forgery.

The judgment in Cause No. 245,179 (aggravated robbery) is reversed and the prosecution ordered dismissed. The judgments in Cause No. 245,097 (aggravated rape) and Cause No. 245,187 (forgery) are affirmed.

Before the court En Banc.

MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

The majority overrules the State’s motion for rehearing without opinion.

One should not be permitted to exhibit a weapon to another and commit several offenses against that person and be liable for punishment for only one offense.

Appellant Orosco was convicted of forgery, aggravated rape, and aggravated robbery. On original submission the convictions for rape and forgery were affirmed. The conviction for robbery was reversed and the prosecution ordered dismissed on the ground that the double jeopardy clause of the Constitutions of the United States and Texas had been violated because there was one assault against a single victim in the commission of the robbery and rape'. We should be consistent in the cases and apply a test that would bring about forseea-ble and just results. The holding of a weapon on a victim should not allow wholesale crimes committed on that victim without being subject to more than one punishment.

The evidence showed that Orosco went to the door of the victim’s home and demanded admittance. When the victim refused, the appellant pulled out a knife and again demanded entry. When the victim relented, he put away the knife and it was never ■seen again.

Orosco then took the victim upstairs and raped her. After the intercourse, both put on their clothes. Appellant took the victim to another bedroom and asked if she had any money. When she replied that she did not, he took her downstairs and stated that he was going to take something. He looked around the living room and unplugged the television. He then rummaged through the victim’s purse and found her checkbook. The victim was ordered upstairs whereupon appellant left with the television set and the checkbook.

The majority opinion holds that carving applies to the crimes of rape and robbery because the evidence showed an “uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim.” This principle has been termed by commentators as the “same transaction” test. See Comment, Twice In Jeopardy, 75 Yale L.J. 262 (1969). Yet an analysis of the evidence in this case shows that the assault was neither continuous nor uninterrupted. The prosecutrix testified that the whole event lasted approximately one hour. During that hour several different crimes took place. Appellant had intercourse twice with the victim and attempted anal intercourse once. Further, he went through several rooms of the house before deciding to take the television set and the checkbook.

’ The majority opinion is based on the display of the knife and appellant’s continued possession of it during the robbery and the rape. In other words, the same evidence would be required to prove a material element of each offense, namely, aggravation. This is, in effect, the “common elements” or “same evidence” test. See 75 Yale L.J. 262, supra.

Carving is a court made rule separate from and in addition to the constitutional provision that “No person for the same offense shall be twice put in jeopardy of life or liberty.” Texas Constitution, Article 1, Section 14; Article 1.10, V.A.C.C.P. Basically, the rule is that the State is allowed to “carve” out of any one criminal transaction as large an offense as it desires but it can “cut” only once. The State is then bound by its election. Herera v. State, 35 Tex. Cr.R. 607, 34 S.W. 943 (1896). The difficulty with the application of the carving doctrine lies in the determination of what distinct offenses occur within the same criminal transaction.

The confusion concerning the meaning of “same criminal transaction” has accompanied the carving rule almost from the inception of Texas criminal jurisprudence. In Herera v. State, supra, certain principles were set forth to determine when the doctrine of carving applied. Indictments were not for the same offense if (1) the indictments were so diverse as to preclude the use of the same evidence to maintain all the indictments, or (2) each indictment set out an offense completely different in its elements from the others. If there was a common material element or if the same evidence was required to convict under each indictment, the carving doctrine applied. In 1896, the court found the carving doctrine to be “inherently difficult, and made more so by contradictory and confused decisions from many of the courts.”

Within nine years, confusion surrounded the doctrine of carving in this Court. In Paschal v. State, 49 Tex.Cr.R. 111, 90 S.W. 878 (1905), the court adopted a different test, but cited Herera, supra. Paschal assaulted his wife by (1) throwing an orange at her, (2) by choking her, (3) by cutting her clothes off, and (4) by brandishing a large stick to beat her. He was convicted first of aggravated assault and then of assault with intent to murder. The Court reversed the second conviction, holding that all these acts were “one and the same continuous act or transaction.” Once the State had elected to prosecute for aggravated assault, it was bound by that election and could not prosecute for assault with intent to murder. No one could logically argue with the result of that case.

The confusion between the common element or same evidence test and the continuous assaultive transaction test continues to plague this Court. The common elements test was applied in Price v. State, 475 S.W.2d 742 (Tex.Cr.App. 1972), where the defendant forced his way into the victim’s car with a knife and made her drive off. She pulled over a short time later where the defendant attempted to take a ring off her finger. The whole sequence of events, taking place over a ten to twelve minute period, was called a single transaction because the same evidence was used to convict the defendant of two separate offenses. The carving doctrine was applied and the defendant’s last conviction was reversed. The case, by this writer, should be overruled even though it followed earlier cases.

In the very next year, the continuous assaultive transaction test was used in Douthit v. State, 482 S.W.2d 155 (Tex.Cr. App. 1972). Here the defendant forced the prosecutrix into his car and' attempted to rape her in Travis County. They then drove to Hays County where he raped her twice, drove to Williamson County where she was raped again, and returned to Travis County where she was released. The defendant was acquitted in Williamson County of rape, tried later in Travis County of assault with intent to rape and convicted. He argued on appeal that the entire episode was one continuous assaultive transaction and that the carving doctrine prohibited a second trial in Travis County. The Court held that the continuous assaultive action was one in which several assaultive transactions and completed crimes occurred. In other words, the several acts of intercourse were accomplished by one continuous act of force and threats to overcome the victim’s resistance. The various acts of intercourse were sufficiently separated by time and place so that they were not part of a single transaction for carving purposes.

In Duckett v. State, 454 S.W.2d 755 (Tex. Cr.App. 1970), the defendant was convicted, first, of assault with intent to murder with malice and then óf robbery by assault with a firearm. The Court cited Paschal for the continuous assaultive transaction test and then Herera for the common elements test. The Court then held that because the same evidence was used to support both convictions, carving was required. The robbery conviction was reversed.

The next series of cases all used the same evidence test. In Crabb v. State, 503 S.W.2d 260 (Tex.Cr.App.1974), the defendant was convicted for speeding and willfully attempting to elude a police officer. In Lee v. State, 505 S.W.2d 816 (Tex.Cr.App. 1974), the defendant was convicted on each of three separate acts of sodomy. In each case, the court held that each offense was separate and distinct and not proven by the samé evidence. See also Muncy v. State, 505 S.W.2d 925 (Tex.Cr.App. 1974), where the convictions were for attempting to elude a police officer and aggravated assault with a motor vehicle. In Grant v. State, 505 S.W.2d 279 (Tex.Cr.App. 1974), the convictions were for speeding and driving while intoxicated. In Gehrke v. State, 507 S.W.2d 550 (Tex.Cr.App. 1974), the convictions were for driving while intoxicated and failure to keep the vehicle in the same lane. This Court in these three cases held that the doctrine of carving did not apply.

In Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App. 1975), and in Robinson v. State, 530 S.W.2d 592 (Tex.Cr.App. 1975), both handed down on the same day, different tests were used in applying the carving doctrine. In Evans, the defendant was convicted of robbery and felony theft. The evidence showed that he brandished a pistol, took the victim’s wallet, shot the victim in the stomach, forced the victim to run away, and then stole the. victim’s car. The robbery conviction was based on the stolen wallet while the stolen car formed the basis of the felony theft conviction. The Court stated that there was a continuous time sequence of events which “did not break the chain of antecedent violence perpetrated upon the complaining witness só as to give rise to the inception of another separate and distinct offense.”

In Robinson v. State, supra, however, the “common elements test” was used. Robinson was convicted of criminal trespass and misdemeanor theft when he entered the grounds of the University of Houston without authority and stole a bicycle. The Court reasoned that the trespass was committed as soon as the defendant entered the university grounds. The theft was subsequent to the trespass and, therefore, presumably did not require the same evidence for conviction. If that case had been analyzed under the “same transaction” test, carving would have been applied.

In Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App. 1976), the various carving tests were intermingled. Hawkins was convicted, first, of carrying a prohibited weapon, a sawed-off shotgun and, then, of aggravated robbery with a deadly'weapon. The defendant used the sawed-off shotgun in the robbery. The Court cited cases using each of the carving tests and found “a common thread” in all those decisions. “The common factor has been an uninterrupted and continuous sequence of events and assaultive acts directed toward a single victim.” The Court held that the two instant charges were separate and distinct offenses in law and in fact, citing Robinson v. State, supra. The Court ignored the reasoning that the possession of the shotgun was with the intent of committing the robbery and that the possession occurred during the same criminal transaction as the robbery. There was also a common element in both crimes.

In Humphreys v. State, 565 S.W.2d 59 (Tex.Cr.App. 1978), the defendant was convicted of resisting arrest and failure to identify himself as a witness. The Court cited Ex parte Joseph, 558 S.W.2d 891 (Tex. Cr.App. 1977), and stated that a defendant could not be convicted of different parts of a single transaction, though technically those parts were legally distinct offenses thus ignoring the holdings of. Hawkins and Robinson. The Court then stated that carving would apply only when the first offense was a necessary and essential element of the second, thus ignoring the holding of Herera, which requires only a common material element. The Court then held that carving was not required because (1) the evidence required to convict on each offense was not the same, and (2) the acts which constituted the basis of the defendant’s arrest for failure to identify himself were complete prior to the acts constituting resisting arrest. This holding is the essence of the Hawkins and Robinson rationale of legally distinct and separate offenses.

The Court returned to the “same transacr tion” test in cases where the defendant was convicted of robbery by assault and murder with malice, as in Ex parte Barron, 568 S.W.2d 362 (Tex.Cr.App. 1978), and in Ex parte Williams, 571 S.W.2d 27 (Tex.Cr.App. 1978), and in a case involving robbery and assault with intent to commit murder with malice, as in Ex parte Cantell, 571 S.W.2d 33 (Tex.Cr.App. 1978). The Court stated that the convictions were the result of a continuous and uninterrupted assaultive transaction directed at a single victim in the same place at the same time. It should be noted that in Barron the robbery was noted as a lesser included offense of the other charge. See also Wilson v. State, 577 S.W.2d 498 (Tex.Cr.App. 1979).

This Court in Ex parte Fitch, 580 S.W.2d 372 (Tex.Cr.App. 1979), held that the offenses of robbery and escape from jail were separate offenses where the petitioner, using a rifle, robbed the sheriff of over two hundred dollars, locked him in his own jail and escaped. The Court reasoned that the assault was not a necessary element of the offense of escaping from jail.

The dissenting opinion in that case noted the two theories of same transaction and common element. It stated that the evidence showed that the sheriff was both the party assaulted with the gun in the robbery and the person against whom the firearm was used in the escape, with all elements of each offense occurring simultaneously. Further, the element of assault was a material element in each offense.

A comparison of the holdings noted above demonstrates the frustration any analysis of the carving doctrine yields. The Court has been operating on at least two. theories of determining when two indictments are for the same offense, the same transaction test and the common elements test. Arguably, there is even a third test, the “same evidence” test. Because this Court uses the several tests, the precedential value of any one case is of little or no consequence.

Other jurisdictions have found the standard analytical tools unworkable. One commentator described the same evidence test as a “stereotypical formula” that leads not only to unpredictable results but erodes the finality of criminal judgments as well. Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513 (1949).

Justice Dimond of the Alaska Supreme Court criticized the same evidence test because it increases the likelihood of multiple punishment for what is “really and basically one criminal act.” He criticized the same transaction test because there is no useful standard to determine just what is a single criminal transaction. Whitton v. State, 479 P.2d 302 (Alaska 1970). Pennsylvania adopted a modified version of the same transaction test in order to (1) avoid piecemeal litigation and conserve judicial manpower,, (2) provide the defendant with a speedy trial, and (3) prevent prosecutorial harassment. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973).

Various theories have been proposed as alternatives to the standard analytical modes. In Whitton v. State, supra, the Alaska Supreme Court stated that, when confronted with a carving problem, the trial judge must compare the statutes involved by applying them to the facts of the case in order to determine whether there are significant or substantial differences in the defendant’s intent or conduct. He must then analyze any differences in the light of society’s interest, including the nature of the property or personal right to be protected and the broad objects of criminal law. Ultimately, the judge must determine whether the differences are substantial enough to justify imposing multiple punishments or permitting multiple prosecutions. In Whitton, the defendant was charged with robbery and committing a robbery by use of a firearm, both occurring during the same criminal action. The Alaska court had no trouble finding that both crimes were committed with the same intent and the same conduct and, therefore, the state could prosecute only once.

That the analysis is a two-stage process was emphasized in Thessen v. State, 508 P.2d 1192 (Alaska 1973). The defendant was convicted of fourteen counts of manslaughter and one of arson where the proof showed that he had only the intent to commit arson. The defendant had no knowledge of anyone being in the building at the time he set the blaze. The court found no significant differences in intent or conduct to justify the imposition of multiple punishment. Therefore, it was unnecessary to examine the social interests to be vindicated.

In Walton v. State, 448 S.W.2d 690 (Tenn. Cr.App. 1969), the defendant was convicted of burglary with intent to rape and assault with intent to rape. The court stated that multiple prosecutions were barred where the various offenses grew out of the same transaction involving the same criminal intent. The same rationale was used by the Tennessee Supreme Court in Acres v. State, 484 S.W.2d 534 (Tenn. 1972), where the defendant commandeered an automobile at gunpoint, killed the driver and stole his money. See also Carr v. State, 2 Tenn.Cr. App. 568, 455 S.W.2d 619 (1970), which is factually similar to Hawkins. In Rockett v. State, 475 S.W.2d 561 (Tenn.Cr.App. 1972), the defendant was convicted of robbery and rape. He held a pistol to the victim’s head, made her lie down, emptied her purse and raped her. The court held these were separate offenses with separate intent and each could be prosecuted. This case is very similar to the case at bar.

The Michigan courts have also broadened their “same transaction” test. The crimes must be committed in a continuous time sequence and display a single intent and goal. If a defendant has only one objective and commits several crimes in attaining that objective, only one prosecution may be brought. There must be a close unified purpose, an essentially unitary criminal act. Mere temporal proximity is insufficient. In People v. Robertson, 67 Mich.App. 603, 242 N.W.2d 24 (Mich.Ct.App.1976), the defendant was convicted of possessing both marihuana and receiving stolen property. Though the police developed the evidence of both crimes at the same time, satisfying the time sequence test, the court found that each crime was committed with a different criminal intent. Double jeopardy was not applicable.

This Court should adopt the “intent” test just as the Alaska Court did in the Whitton case. The trial court should compare the statutes involved by applying them to the facts of the case in order to determine whether there are significant or substantial differences in a defendant’s intent or conduct.

No rule can be established that will apply to all cases. The same transaction test is too broad. Each case must be determined on its particular facts.

In order to determine whether prosecution should be barred for multiple offenses arising out of the same transaction, the trial court should look to (1) the definition of the offenses and (2) whether the results were the result of a single or multiple acts. The act or acts and the intent for each act, the different injuries incurred by the victim, should be considered.

Such a test could not be applied mechanically, but it would be better than the confusion we now have from the many cases in this State.

There is no reason to hold that a man can hold a weapon on another person and commit as many crimes against that victim as he wishes without fear of punishment except for one crime. Such holdings do not deter crimes but encourage them.

The appellant’s motion for rehearing should be overruled and both judgments for robbery should be affirmed.

W. C. DÁVIS, J., joins in this dissent.

      . See Duckett v. State, Tex.Cr.App., 454 S.W.2d 755.

      . See and compare Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App. 1976), where, in a very similar fact situation, the common elements test was used to hold that carving applied.

      . Though it is clear that the Texas carving doctrine would apply with this particular indictment, the facts of the case are closely analogous to Hawkins v. State, supra.

      . See and compare Ex parte Evans, supra, and Ex parte Jewel, supra.


author: W. C. DAVIS, Judge.

text:
    David Michael SIMPKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 55787.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 31, 1979.
    Rehearing En Banc Denied Dec. 12, 1979.

      Ronald W. Aultman and Jerry J. Loftin, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Ronald G. Knight, Stephen R. Chaney and J. Michael Worley, Asst. Dist. Attys., Forth Worth, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

The appellant was convicted of murder on July 23,1976. The jury assessed punishment at 10 years confinement.

The record reflects that on November 12, 1974, while the appellant was home on leave from the Army, he attended a talent and fashion show at Dunbar High School. After the program, the appellant approached a group of people, which included the deceased, John Milton. Several witnesses heard the deceased tell the appellant, “Man, I don’t have to say anything to you. I’m grown.” The appellant testified that the deceased also said, “Nigger, I’m grown, get out of my sight.”

The appellant then left the group and returned to his car with Kelvin Curvey. When the appellant got a 12-gauge shotgun from the back seat, Curvey grabbed the gun and it discharged. Curvey testified that the gun fired as he was attempting to put it on safety.

The State’s witnesses testified that the appellant returned about ten minutes later with the gun, walked up within four feet of the deceased, aimed the gun, and fired. After the gun fired, Alvin Giddings ran toward the appellant, as did Kelvin Curvey, and they struggled for the gun.

The defense presented evidence that the struggle for control of the gun did not take place after the shooting, but rather that the gun discharged, hitting the deceased, during the struggle for the gun.

In his first five grounds of error, the appellant contends the trial court erred in its refusal to charge the jury on the lesser included offenses of negligent homicide, aggravated assault, and involuntary manslaughter. Not only did the evidence not raise the issues of these lesser included offenses, but the appellant in his testimony has specifically denied the elements of all of these offenses. In ground of error number one, the appellant contends that the trial court erred in refusing to submit his requested charge on criminally negligent homicide. It is well settled that when evidence from any source raises a defensive issue or an issue of a lesser included offense, and the charge is properly requested, the charge on that issue must be submitted to the jury. Branham v. State, 583 S.W.2d 782 (Tex.Cr.App.1979); Moore v. State, 574 S.W.2d 122 (Tex.Cr.App.1978); London v. State, 547 S.W.2d 27 (Tex.Cr.App.1977); Esparza v. State, 520 S.W.2d 891 (Tex.Cr. App.1975). The accused’s own testimony is sufficient to raise an issue. Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977).

The offense of criminally negligent homicide is committed when a person causes the death of an individual by criminal negligence. V.T.C.A. Penal Code, Sec. 19.07. Criminal negligence is defined in V.T.C.A. Penal Code, Sec. 6.03(d) as:

“A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

The appellant cites Esparza v. State, supra, for the proposition that the essence of negligent homicide is an intentional act producing an unintended result. It is the appellant’s contention that his intentional act of carrying the gun into a crowd of people, and his unintended result of firing the gun, entitles him to a charge on criminally negligent homicide.

The distinction between intentional and unintentional acts which arose under our former penal code has been abolished. See Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.1975) (on Motion for Rehearing). In Dockery, supra, we stated that Sec. 6.03 of the new code defines four culpable mental states. Thus, a person may act “unintentionally” and still commit a criminal offense, provided he acts with knowledge, recklessness, or negligence.

V.T.C.A. Penal Code, Sec. 6.01(a) provides:

“A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that the conduct is an offense.”

Therefore, the distinction to be drawn in determining if the homicide is criminal is not whether the act is intentional or unintentional, but whether the act is voluntary or involuntary. In order for the homicide to be punishable, the evidence must show that the appellant committed a voluntary act with the requisite culpable mental state. See Dockery, supra.

There are two versions of the killing presented in the record before us. The State’s witnesses testified that the appellant approached the group of people standing by the auditorium, stopped four feet from the deceased, aimed and fired the shotgun.

The appellant testified that the shooting was the result of an accidental discharge. He stated:

“Alvin run out toward me and grabbed the gun and we was tussling with the gun and all of a sudden the gun went off, accidentally went off — how come, I don’t know.”
******
Q. [Defense counsel]: Did you voluntarily pull that trigger?
A. No, sir, like I said again, it was an accident.”

We have previously held that where the defense raised the issue of accident, the defendant is not entitled to a charge on negligent homicide. Graham v. State, 486 S.W.2d 92 (Tex.Cr.App.1972); Palafox v. State, 484 S.W.2d 739 (Tex.Cr.App.1972); Smith v. State, 470 S.W.2d 696 (Tex.Cr.App.1971); Shelton v. State, 367 S.W.2d 867 (Tex.Cr.App.1963).

Of course, if the issue of negligent homicide is raised, the appellant is entitled to the charge; however, the defense of accident does not in and of itself raise the issue of negligent homicide.

In Esparza v. State, supra, upon which appellant relies, Judge Roberts stated:

“It is true that a number of opinions by this Court have stated that as a general rule a charge on negligent homicide is not required when a proper charge on accident is given . . . While ordinarily a clear defense of accident will not raise the issue of negligent homicide, this will not invariably be the case. When the issue is raised, . . . the accused is entitled to benefit from a charge on the subject.”

In London v. State, supra, .the defendant’s murder conviction was reversed, this Court holding that where the issue of criminally negligent homicide had been raised, a charge on accident was not sufficient to protect the defendant’s rights because it left the jury with the single alternative of finding him guilty of murder or setting him free.

We agree that if the facts raise the issue of negligent homicide, then a charge must be given. We also agree that if the issue of negligent homicide is raised, a charge on accident would be inadequate to protect the appellant’s rights. However, the evidence in this case did not raise the issue of this lesser included offense. No evidence indicates that the appellant possessed the requisite culpable mental state for negligent homicide, i. e., that he ought to have been aware of a substantial and unjustifiable risk. The appellant testified that he had qualified on the rifle range in the Army and that he knew weapons were dangerous. He also stated in his brief, “Obviously, the appellant realized carrying a gun toward a crowd of people created a substantial risk.”

Where the evidence raises only the issue that the accused is guilty of the offense charged or no offense at all, the issue of the lesser included offense is not raised. Thomas v. State, 578 S.W.2d 691 (Tex.Cr. App.1979). The ground of error is overruled.

Appellant asserts in his third ground of error that the trial court erred in refusing his requested charge on aggravated assault. Again, the evidence does not raise the issue of this offense, in that the appellant has denied committing any voluntary or intentional act which would raise any of the elements of this offense.

Additionally, the failure to give a charge on aggravated assault is not error where the appellant killed the deceased with a deadly weapon per se. Smith v. State, 411 S.W.2d 548 (Tex.Cr.App.1967). A shotgun has been held to be a deadly weapon per se. See Burks v. State, 165 S.W.2d 460 (Tex.Cr.App.1942).

In Cain v. State, 549 S.W.2d 707, 713 (Tex.Cr.App.1977), cert. den. 434 U.S. 845, 98 S.Ct. 149, 54 L.Ed.2d 111, we held that when a deadly weapon per se is used in a deadly manner and death results, there is no need to give a charge on aggravated assault even though the defendant testified he did not intend to kill the victim. See Ruiz v. State, 523 S.W.2d 691 (Tex.Cr.App. 1975); Stills v. State, 492 S.W.2d 478 (Tex. Cr.App.1973).

From a review of appellant’s testimony, we conclude that the record does not reflect that a fact issue requiring submission of aggravated assault was raised. This ground of error is, therefore, overruled.

In ground of error number four, the appellant contends that the trial court erred in failing to charge the jury on involuntary manslaughter as requested.

A person commits the offense of involuntary manslaughter when he recklessly causes the death of an individual. V.T. C.A, Penal Code, Sec. 19.05(a)(1).

Recklessly is defined in V.T.C.A. Penal Code, Sec. 6.03(c) as follows:

“A person acts recklessly, or is reckless, with respect to circumstances surrounding .his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the actor’s standpoint.”

The evidence raised by the defense did not establish that the appellant consciously disregarded the risk of pointing and shooting the shotgun at the deceased. The appellant maintains that he did not take deliberate aim at the deceased and shoot as the State contends, but that the gun accidentally discharged while he was engaged in a struggle over control of the gun. See Brooks v. State, 548 S.W.2d 680 (Tex.Cr.App.1977).

The evidence did not raise the issue of involuntary manslaughter; therefore, this ground of error is overruled.

In grounds of error two and five, the appellant contends that the trial court erred by failing to give a complete charge on the law of accident as requested by the appellant.

The charge given to the jury states in pertinent part:

“You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct. Therefore, if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, David Michael Simpkins, did cause the death of JOHN MILTON by shooting him with a gun, as alleged in the indictment, but you further believe from the evidence, or have a reasonable doubt thereof, that the shooting was the result of an accidental discharge of the gun while Alvin Giddings and the defendant were struggling or scuffling for the possession of the gun and was not the voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict not guilty.”

Upon examination of the record we find that this instruction fairly and adequately presented the issue raised by the appellant’s own testimony.

Appellant specifically complains about the portion of. the charge which states:

“You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.”

He asserts that the statement is a misdirection of the law and a comment on the weight of the evidence. In his brief, the appellant states:

“The charge impressed upon the jury that no involuntary conduct could ever be an offense, despite the various culpable mental states defined in the Penal Code.”

The trial court has correctly stated the law as found in V.T.C.A. Penal Code, Secs. 6.01(a) and 6.02(a). See Dockery v. State, supra. These grounds of error are therefore overruled.

Next, the appellant contends that his motion for mistrial should have been granted because of a statement made by the State’s witness Alvin Giddings. The prosecutor asked Giddings to relate what the appellant had told him about his boot camp experience. Giddings responded, “Well, first, well he told me the first day he went in they had a fight and afterwards they still had . . ”

The defense counsel objected on the grounds that the statement was leading, suggesting, and immaterial. The court sustained the objection and instructed the jury to disregard the statement, whereupon defense counsel moved for a mistrial.

Now, for the first time on appeal, the appellant contends that this evidence is inadmissible as his character and reputation were not in issue. The ground of error presented on appeal must be the same as the objection raised at trial. Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr. App.1976); Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). There was no objection on the ground now urged; therefore, nothing is presented for review. Ground of error number six is overruled.

In ground of error number seven, the appellant asserts that the trial court erred in admitting improper evidence. The appellant complains of the following exchange between witness Alvin Giddings and the prosecutor:

“A. [Giddings]: Well, he said he was looking for a reputation.
“Q. [Mr. Knight]: What kind of reputation?
MR. AULTMAN: [Defense counsel]: That’s not responsive to the question asked.
“THE COURT: Objection overruled.
"MR. AULTMAN: Note our exception.
“THE WITNESS: Fighting reputation.”

Again, the appellant’s objection on appeal differs from the objection asserted during the trial. Nothing is presented for review. Bouchillon supra; Lejeune, supra.

Appellant contends in ground of error number eight, that reversible error was committed during jury argument, when the prosecutor intimated that the appellant had lied and had fabricated his defense. The appellant’s general objection was overruled.

An argument will not constitute reversible error unless, in light of the record as a whole, the language complained of is manifestly improper, harmful, and prejudicial. Kerns v. State, 550 S.W.2d 91 (Tex.Cr. App.1977); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972). In Greer v. State, 523 S.W.2d 687 (Tex.Cr.App.1975), we said that where the defendant’s testimony is clearly contrary to the preponderance of the evidence introduced by the State, it is not reversible error for the prosecutor to argue that the facts of the case prove that the accused was not telling the truth. There should be no different rule for discussion of the appellant’s testimony than that of any other witness. Error, if any, was not so harmful as to require reversal. Ground of error number eight is overruled.

In ground of error number nine, appellant refers to the portion of the argument wherein the prosecutor related to the jury the discrepancies in the defense witness’ testimony. The defense counsel’s only specific objection to these, statements was that the statements were outside the record.

Confronted with a similar argument in Akers v. State, 128 Tex.Cr.R. 68, 79 S.W.2d 128 (1935) (Motion for Rehearing), we said:

“The conflict between the witnesses for the state and the appellant cannot be reconciled. . . . There could have been no argument for the state which would not have questioned the truth of the witnesses for the appellant. Likewise, the appellant’s witnesses were in conflict with those of the state. On appeal, the effect of the remarks of counsel as influencing the verdict of the jury must be considered and appraised in the light of the facts before the court at the time.”

The prosecutor, in jury argument, has the right to make reasonable deductions from the testimony adduced at trial. The discrepancies referred to by the prosecutor were contained in the record; therefore, the argument was a reasonable deduction from the evidence.

This ground of error is overruled.

Appellant contends that a mistrial should have been granted because of improper and inflammatory jury argument made by the prosecutor. The remark complained of by the prosecutor was as follows:

“So I ask you not on sympathy, but in behalf of the Milton family who is happy to see this matter handled in a legal manner in front of a jury in Tarrant County . . .”

The defense counsel objected, saying, “Your Honor, now that’s outside the record.”

The court sustained the objection and instructed the jury not to consider the statement for any purpose. The appellant’s motion for a mistrial was denied.

On appeal, the appellant now objects to the remark as being an attempt to inflame or prejudice the minds of the jurors through sympathy. Again, the ground of error presented on appeal must be the same as the objection raised at trial. Bouehillon v. State, supra; Lejuene v. State, supra. Nothing is presented for review.

However, even if the ground or error alleged had been the same as the trial objection, the argument of the prosecutor appears to have been an invited response to the defense counsel’s argument that the deceased’s family “beat the living daylight” out of a defense witness, that they “kept a lot of people of (sic) the stand” and that the deceased’s family insisted that charges be filed.-

Ground of error number ten is overruled.

In his final ground of error, the appellant complains of the following argument of the prosecutor as being outside the record:

“[Prosecutor, Mr. Chaney]: And they want you to believe that in all of the forty people in the crowd, the man that was killed was accidentally John Milton.
“Isn’t that the most amazing coincidence in the world that this accidental shot hit the very man that he was going to scare, the very man that in effect called him a little kid?
“Isn’t that amazing? What’s the probability of that — one in a million?”

A jury argument must be either extreme or manifestly improper or inject new and harmful facts to be reversible. Thomas v. State, 519 S.W.2d 430 (Tex.Cr. App.1975). While the prosecutor’s mathematical calculations are outside the record, the appellant has not shown that he was unduly prejudiced by this remark. No reversible error has been shown; therefore, this ground of error is overruled.

Finding no reversible error, the judgment is affirmed.

      . See V.T.C.A. Penal Code, Sec. 22.02(a)(1).


text:
    Oscar Lee SIMMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 57675.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 31, 1979.
    Rehearing En Banc Denied Dec. 12, 1979.
    Bill Roberts, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., J. T. Lang-ford and David C. Schick, Asst. Dist. Attys., Dallas, and Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for burglary of a vehicle. On August 10, 1976, a jury found the appellant guilty and assessed punishment at four and one-half years.

The sole ground of error on appeal is that the evidence is insufficient to sustain the conviction. Appellant contends that the evidence presented did not establish that he entered the vehicle with the intent to commit theft.

The record reveals that on April 15,1976, at approximately 8:15 p. m., two Dallas police officers observed the appellant in a parking lot, bent over inside one of the cars. They saw the appellant place a sack on the ground. The sack, it was later determined, contained a six-pack of beer. The appellant had two pill bottles in his possession when he was apprehended.

A1 Gross, the owner of the vehicle, testified that the sack containing the beer and the pill bottles belonged to him. He further testified that he had not given the appellant permission to enter his car and that, to the best of his knowledge, the car doors were shut when he left the car.

The appellant testified in his own behalf. On direct examination, the appellant stated:

“A: Well, I was passing by and I noticed the door on the passenger side of the vehicle was wide open and, you know, and I mean, I was in kind of a pleasant mood and just my curiosity just, I believe, kind of drew me over to the vehicle on the parking lot.
“Q: [DEFENSE COUNSEL]: What did you do when you got over there?
“A: Once I got over there, I noticed that there was no one around, or there was no one in the vehicle, so I — I ' asked myself: Why? And it was— it was dark. It was dark, and so — I noticed no one was in the front seat, so I had to lean over inside the car to see what or who was in the back because I didn’t understand this car wide open on this parking lot and no one around.”
* * * * * *
“Q: What did you do next?
“A: Well, now, I am already in the car, so I picks — opens the container and I believe that maybe that sack there could have been in there or it might have been in the front seat, I am not sure which way it was; but anyway, I remember lifting it up, the container top.”

In Ewing v. State, 400 S.W.2d 911 (Tex.Cr.App.1966), the evidence was similar to that presented in the case at hand. There we held that the evidence was sufficient to sustain the burglary conviction where a police detective observed the defendant leaning inside a parked automobile. As the detective approached, the defendant turned around with a portable radio in his hand. The owner of the car testified that the radio belonged to him. See Kindrick v. State, 466 S.W.2d 778 (Tex.Cr.App.1971); Valdez v. State, 462 S.W.2d 24 (Tex.Cr.App. 1970). It is well established that the specific intent to commit theft can be inferred from the circumstances. Williams v. State, 537 S.W.2d 936 (Tex.Cr.App.1976); Martinez v. State, 469 S.W.2d 185 (Tex.Cr.App. 1971); Hawkins v. State, 467 S.W.2d 465 (Tex.Cr.App.1971). The circumstances surrounding this case reveal that the appellant entered a vehicle belonging to another at night time. He removed property from the vehicle. He had two pill bottles in his possession when he was apprehended.

We hold that the evidence is sufficient to sustain the conviction.

The judgment is affirmed.


author: PHILLIPS, Judge. W. C. DAVIS, Judge,

text:
    Clifton Wayne LONG, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 60979.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 28, 1979.

      O. T. Beaty, Whitney, for appellant.
    Neal T. Jones, Jr., Dist. Atty., Hillsboro, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation.

On October 29, 1975, the appellant pled guilty to the offense of aggravated assault. The imposition of the sentence was suspended and appellant was placed on probation for a period of five years.

On June 2, 1978, probation was revoked and sentence imposed after the court found that the appellant had violated a condition of probation when he had been convicted for the misdemeanor offense of theft of property of the value of $20.00 or more but less than $200.00. The court’s order revoking probation relied exclusively on the theft conviction as showing a violation of the terms of probation sufficient to support revocation.

The practice of relying solely on a conviction to establish the commission of an offense for revocation purposes has been criticized many times by this Court. Ross v. State, Tex.Cr.App., 523 S.W.2d 402. We have continuously reiterated our caution to trial judges, prosecutors, and probation officers as to the inadvisability of relying exclusively upon evidence of a conviction to support a violation of a probationary condition prohibiting the commission of a penal offense. Spencer v. State, Tex.Cr.App., 503 S.W.2d 557; Cannon v. State, Tex.Cr.App., 479 S.W.2d 317; Mason v. State, Tex.Cr. App., 438 S.W.2d 556; Scott v. State, Tex. Cr.App., 516 S.W.2d 196. See also Jansson v. State, Tex.Cr.App., 473 S.W.2d 40. Cf. Harris v. State, Tex.Cr.App., 331 S.W.2d 941. A review of the above cases will indicate some of the inherent problems in relying solely upon proof of a conviction to reflect the commission of an offense, which is the normal probationary condition imposed and alleged violated, and as was true in the instant case.

Appellant’s sole ground of error alleges that the State did not adequately prove that the appellant was the same Clifton Wayne Long that was convicted for the offense of misdemeanor theft in 1978.

The State’s evidence consisted first of testimony by Mr. Harold Wardlow who was appellant’s original probation officer after his conviction for aggravated assault. Through Mr. Wardlow’s testimony, State’s Exhibit No. 1 — appellant’s adult probation file in Cause No. 26,318 — was admitted into evidence. This file, which also included a photograph of the defendant, also contained a contact sheet filled out by Wardlow, containing appellant’s date of birth, driver’s license number, and current address.

The State then sought to introduce Exhibit No. 2, which was a Dallas County Sheriff’s Office booking sheet, dated February 23, 1978. This booking sheet was admitted solely for the purpose of showing the birthdate and driver’s license number of the appellant. The booking sheet was admitted into evidence over the objection of appellant’s counsel in that it violated the hearsay rule. The booking sheet contained no certification that it was a true and correct copy, it bore no signature, and witness Wardlow testified that he did not have anything to do with the preparation of that document, nor was he present when it was prepared.

The State then introduced Exhibit No. 3, which was a certified copy of the judgment and sentence of the appellant for the offense of misdemeanor theft.

Appellant claims that the booking sheet should not have been admitted into evidence because it violated the hearsay rule, and that using it to verify the appellant's name, driver’s license number, and address on his probation information sheet and then using it to show that the judgment and sentence were the end result of the arrest from which the booking sheet was made was insufficient to prove the appellant was the same person who was convicted of the misdemeanor offense of theft during his term of probation. We agree.

We first hold that appellant’s objection at the trial that the booking sheet from the Dallas County Sheriff’s Office constituted hearsay was a sufficient objection to preserve error that the booking sheet did not meet the requirements of Article 3731a, V.A.C.S. Because of the lack of authentication of the booking sheet, the contents therein constituted hearsay and should not have been admitted for any purpose. Hearsay is not admissible in a probation revocation proceeding. Maden v. State, Tex.Cr.App., 542 S.W.2d 189.

Thus, without the connecting link of the booking sheet which showed the same name, driver’s license number, and birthdate as those on the probationer information sheet, there is no proof that the judgment and sentence of conviction for the misdemeanor offense of theft related to the same person who was on probation at the time. Further, we find that in the instant case the documentary evidence of the prior conviction, standing alone, was insufficient to prove up the prior conviction without some admissible form of independent evidence to prove the identity of the accused as the person so previously convicted.

In Cain v. State, Tex.Cr.App., 468 S.W.2d 856, it was stated:

This Court has approved several different means to prove the accused was the same person previously convicted. They include, but are not necessarily limited to: (1) Testimony of a witness who identifies the accused as the same person previously convicted. Garcia v. State, 135 Tex.Cr.R. 667, 122 S.W.2d 631; Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732; (2) Introduction of certified copies of the judgment and sentence and records of the Texas Department of Corrections or a county jail including fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant. Vessels v. State, 432 S.W.2d 108; (3) And by stipulation or judicial admission of the defendant. Brumfield v. State, supra.

Although admittedly the trial court in revoking appellant’s probation was not necessarily limited to the three avenues pointed out in Cain, supra, however, no other admissible evidence exists in the record identifying the appellant as the same person convicted of misdemeanor theft. In McClure v. State, Tex.Cr.App., 496 S.W.2d 588, there was, in addition to the certified copies of the judgment and sentence of a prior conviction, the testimony of an assistant district attorney who was in the courtroom when the accused was convicted of the prior offense. In Bennett v. State, Tex.Cr.App., 476 S.W.2d 281, the defendant testified as to his prior conviction and the-State introduced record evidence of the pri- or Oklahoma conviction.

We once again caution trial judges about the difficulties inherent in relying exclusively upon evidence of a conviction to support revocation based on the probationary condition prohibiting the commission of a penal offense. We find in the instant case that the evidence was not sufficient to prove that the appellant, who had been placed on probation on the condition that he commit no offense against the law and his probation was revoked for a subsequent misdemeanor conviction, was the .same person who had been convicted of the misdemeanor offense of theft during the term of his probation.

The judgment is reversed and the cause remanded.

ODOM, J., concurs in the result.

W. C. DAVIS, Judge,

concurring.

While I concur in the reversal of this judgment, I do so for a different reason than that of the majority. The majority opinion states that appellant’s objection at trial to the introduction of the booking sheet was sufficient to preserve error as to hearsay admitted. I cannot agree that his objection at trial was a hearsay objection. Appellant’s sole objection was,

“We’ll object to State’s Exhibit Number Two on the grounds that the witness was not personally present when the document was prepared, nor does the instrument contain any certification that it is a true and correct copy, and bears no signature at all.”

I cannot agree with the majority that this objection can be construed as an objection to hearsay. Thus, I would hold that this objection was insufficient to apprise the trial court that appellant's objection was to hearsay evidence. See Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977).

Nevertheless, it appears that the judgment should be reversed for the reason that the evidence is insufficient to show that appellant was the same person convicted of misdemeanor theft. The booking sheet was used as the connecting link. However, when the booking sheet was admitted into evidence, it was offered solely to show the birthdate and license number. The court stated,

“It will be admitted solely for that purpose and nothing else.”

Since the evidence was admitted for this limited purpose before the trial court, nothing else contained on the booking sheet may be considered. This, standing alone, appears to be insufficient to show that appellant was the person convicted of misdemeanor theft, upon which the State relied to revoke appellant’s probation.

I concur in the reversal of this judgment.

      . We express doubt as to whether the evidence would have been sufficient to prove that appellant was the same person convicted of the misdemeanor theft even had the booking sheet been admissible. It has been held that the evidence is sufficient in a probation revocation proceeding to prove that the accused is the same person named in the record in question where that record contains photographs and a detailed physical description of a named person and the accused is present in court for the fact finder to compare his appearance with that person described in the record. In Johnson v. State, Tex.Cr.App., 410 S.W.2d 785, in addition to the judgment and sentence of the prior Cali-fomia conviction, there was among the duly authenticated records from California reflecting the conviction a picture of the defendant plus a physical description, including tattoos and missing fingers, and the Court concluded that the trial court could look at the defendant and conclude he was the same person who had been convicted in California. Johnson, supra, presents a close question, but is distinguishable from the instant cáse in that the photograph here involved was not part of the record evidence of the conviction but was included in the probation file relating to the offense for which appellant was originally convicted.