text:
    Arthur Charles FRANKS, Appellant, v. The STATE of Texas, Appellee.
    No. 55488.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 13, 1978.

      Thomas P. Roebuck, Jr., Port Arthur, for appellant.
    Tom Hanna, Dist. Atty., and T. Michael Sutton, Asst. Dist. Atty., Beaumont, for the State,
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. Upon his plea of not guilty, appellant was convicted by a jury which assessed punishment, enhanced by a prior felony conviction, at forty years’ imprisonment.

By his first ground of error, appellant contends that the State improperly commented on his failure to testify in violation of his state and federal constitutional rights. Tex.Const. Art. I, Sec. 10; U.S. Const. Amend. V. See also Article 38.08, Vernon’s Ann.C.C.P. We agree and reverse the judgment of conviction. Accordingly, we find it unnecessary to set out the facts or address appellant’s remaining ground of error.

Appellant complains of the following argument by the prosecutor which occurred at the guilt-innocence phase of the trial:

“Mr. Grossheim [Defense Counsel], in trying to give you some type of explanation, says that the Defendant — he told you in his argument that the Defendant does not have to testify. The Court tells you that and he tells you that, that the Defendant does not. The Court — Mr. Grossheim, ‘If the Defendant does not want to testify he does not have to testify. That is his right.’ So, he did not testify. Ladies and gentlemen, use your common sense. Why do you think he did not want to testify?
“MR. GROSSHEIM: Objection, Your Honor, this comments on the failure of the defendant to testify.
“MR. SMITH [Prosecutor]: Your Hon- or, it’s in complete response to Mr. Gros-sheim. He opened the door, Your Honor.
“MR. GROSSHEIM: I didn’t open the door to that, Your Honor. I was merely explaining the instructions.
“MR. MANESS [Prosecutor]: Your Honor, he commented on it in pretty much detail. I think we have a—
“THE COURT: Overrule the objection. “MR. GROSSHEIM: Note our exception.
“BY MR. SMITH: Use your common sense. He had nothing to say up here in his defense about that night. That’s why he did not want to testify.” (Emphasis supplied).

The State contends that the argument was invited and in response to the following argument by defense counsel:

“Now, let’s go to — there are other instructions in here that I might just mention in the beginning. The Defendant— and more specifically on this instruction on the Defendant’s failure to testify. It’s not our burden to show him innocent. That’s not our purpose; it’s not our burden; it’s not what we’re required to do. They are required to prove him guilty. (So, if he doesn’t want to testify, we don’t have to make him testify.) He doesn’t have to testify and it cannot be held against him because it’s not our burden of proof. It’s their burden of proof to establish his guilt as the circumstantial evidence instruction says to a moral certainty.”

Initially, we observe that since the appellant’s objection was overruled by the court, we are not presented with a question of whether a timely instruction cured the error in question. See Garrison v. State, 528 S.W.2d 837 (Tex.Cr.App.1975). Hence, the question squarely before us is whether or not the prosecutor’s argument exceeded defense counsel’s invitation to respond on the subject of his client’s failure to testify.

Although the invited argument rule permits prosecutorial argument outside the record in response to a defense argument which goes outside the record, Garrison v. State, supra at 840, a prosecutor must not stray beyond the scope of the invitation. Kincaid v. State, 534 S.W.2d 340, 342 (Tex.Cr.App.1976). We hold that the prosecutor’s argument, in the present case, exceeded the scope of defense counsel’s invitation and constituted an unjustified direct comment on appellant’s failure to testify. See Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App.1977).

The State relies on Meador v. State, 113 Tex.Cr.R. 357, 23 S.W.2d 382 (1929), a case where defense counsel made an extended argument on his client’s failure to testify. It was held that the prosecutor’s comment on the defendant’s failure to testify made in response to this argument did not exceed the scope of defense counsel’s invitation because the latter had made “a plain unquestioned argument in favor of his client based on his [client’s] refusal to testify” and had appealed “to the jury to look at his client’s silence as similar to that of Jesus Christ upon His trial when He sat dumb before His accusers.”

In Garcia v. State, 126 Tex.Cr.R. 208, 70 S.W.2d 996 (1934), also cited by the State, we held that the prosecutor’s comment on the defendant’s failure to testify was justified by the following argument by defense counsel:

“ ‘The state in this case, gentlemen, have their story and counsel is trying to get you to believe it, in the face of all the contradictions from the mouths of their own witnesses. You have heard only one side of the case, it is true, gentlemen, you have not heard the defendant’s story in this ease; but we feel, gentlemen, that it was not necessary for us to put in any evidence at all in this case — because we think that the state has failed to make out a case. They have failed to prove the guilt of this defendant beyond a reasonable doubt. The evidence produced by the state cannot convince you as reasonable men of this defendant’s guilt.’ ”

This was clearly an argument in favor of the defendant based on his failure to testify-

In Broussard v. State, 505 S.W.2d 282 (Tex.Cr.App.1974), cited by the State, defendant’s counsel argued as follows:

'Now when this charge says that you are not to consider the defendant not testifying for any purpose, it means exactly that, and all of you swore to do your duty. Now this man on the stand is exposed to a skilled prosecutor, and he’s not very smart. This one is not. But this man is, and he is good, and he would just cut him to pieces and he would probably convict him on something else other than what he’s charged with here. And you mustn’t do that, either. You saw what he tried to do with Leroy [a defense witness]. He wants you to convict Leroy of other things except what he’s charged with in his case, and I’m asking you not to let him do it.’ ”

The prosecutor responded:

“ ‘. . . The Judge has told you, on the second to last page, that this man didn’t testify, and you can’t take that as a circumstance against him. You see? Now, Mr. Carver, both of them get up and they say why he didn’t testify, because they didn’t want him to testify, because they didn’t want to expose him to a rigorous cross-examination, see; by me — good old prosecutor, me, I’m gonna tear him up if I can. If he would tell the truth, nobody could tear him up — nobody.’ ”

This Court in Broussard, supra, held that the prosecutor’s response was invited and therefore was not an improper comment on the defendant’s failure to testify. Furthermore, it was held that defendant’s counsel secured no ruling on his objection and therefore nothing was presented for review.

Thus, the cases cited by the State share a common characteristic which distinguishes them from the present case. In those cases, defense counsel attempted to explain away or otherwise minimize the significance of the defendant’s failure to testify. See also, Slater v. State, 166 Tex. Cr.R. 606, 317 S.W.2d 203 (1958); Evans v. State, 127 Tex.Cr.R. 539, 78 S.W.2d 196 (1935); Parker v. State, 39 Tex.Cr.R. 262, 45 S.W. 812 (1898). In the present case, defense counsel merely stated that it was his client’s right not to testify if he wished not to do so. We do not construe such an argument as an attempt to explain away the appellant’s silence, nor was this argument an argument in favor of his client based on his client’s refusal to testify. See Broussard, Meador, and Garcia, all supra.

We conclude therefore that the prosecutor’s argument in the present case was uninvited and unjustified under the circumstances. Appellant’s contention is sustained. See Hunt v. State, 28 Tex.App. 149, 12 S.W. 737 (1889).

The judgment is reversed and remanded.

      . The opinion of the Court in Meador, supra, does not contain a verbatim transcript of defense counsel’s argument.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    John Luke DANIELS, Appellant, v. The STATE of Texas, Appellee.
    No. 55673.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.

      James M. Murphy, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, C. Wayne Huff and Paul D. Macalu-so, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the possession of cocaine; the punishment is imprisonment for twenty years.

Although the appellant timely offered a specially requested charge that was sufficient to apprise the court of the omission of a circumstantial evidence charge, the trial court did not submit a charge instructing the jury on the law of circumstantial evidence. In one of several grounds of error the appellant asserts that the failure to instruct the jury on the law of circumstantial evidence was reversible error. We agree.

The conviction is for possession of a minute quantity of cocaine which the officers found in a plastic bag in the kitchen cabinet on the premises occupied by the appellant and his wife. The expert witness testified that a qualitative analysis proved the powdered substance he found in the plastic bag included lidocaine, methapyriline, and cocaine. This witness further testified the cocaine was neither a quantity that could be quantitatively measured nor a quantity for which a pharmacological effect could be obtained.

The minimum quantity of marihuana that will sustain a conviction for its possession is a usable quantity, Controlled Substances Act, Sec. 4.05(a), but the minimum quantity of any other controlled substance that will sustain a conviction for its possession is not specified. Controlled Substances Act, Sec. 4.04(a); see also Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977).

However, when the quantity of a substance possessed is so small that it cannot be quantitatively measured there must be evidence other than its mere possession to prove that the defendant knew the substance in his possession was a controlled substance. See Reyes v. State, supra; Cantu v. State, supra. Reyes sold a substance which he represented to be heroin and his conviction was upheld even though only a trace of heroin was found in the substance. His representation that the substance was heroin was held to be evidence of a knowing possession of the trace of heroin. Although he possessed only traces of heroin, Cantu was found to have a knowing possession of heroin because he pled guilty to the offense and admitted under oath that he knowingly and intentionally possessed heroin. On his plea of guilty we held the evidence was sufficient to meet the requirements of Art. 1.15, V.A.C.C.P.

The quantity of cocaine possessed by the appellant was so small that it could not be quantitatively measured by the most sensitive and sophisticated equipment used in the Dallas Crime Laboratory. The quantity was so small that in itself it was insufficient to show the appellant knew the substance he possessed was cocaine. However, the State, arguing in support of the sufficiency of the evidence in answer to another ground of error says that there is in this case, just as there was in Reyes v. State, supra, and Cantu v. State, supra, other evidence to show that the appellant knowingly possessed the cocaine. Other controlled substances, narcotic paraphernalia, and me-thapyriline, which is an agent sometimes used to “cut” cocaine, were all found on the same premises as the cocaine. The possession of these items furnishes circumstantial evidence which it was necessary for the jury to believe for its verdict to have sufficient support in the evidence. Since the State does not rely on direct evidence to show that the appellant knowingly possessed the cocaine but necessarily must rely on inferences drawn from the other evidence it necessarily follows that it was error to refuse to instruct the jury on the law of circumstantial evidence. The main fact to be proved rests purely and entirely on circumstantial evidence. See Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.


author: W. C. DAVIS, Judge. TOM G. DAVIS,

text:
    Mary Helen DENHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 56136.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 13, 1978.

      W. John Allison, Jr. (on appeal only), Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb and Dan Garrigan, Asst. Dist. Attys., Dallas, for the State.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated assault; the punishment assessed is imprisonment for 10 years. The indictment alleges that the appellant used a knife, a deadly weapon, intentionally to threaten imminent bodily injury to the complainant.

Appellant’s sole contention is that the evidence is insufficient to prove that the knife she used to stab the complainant was a deadly weapon. The knife, which was not offered for identification nor introduced in evidence, was described by the complainant, without contradiction, as a butcher knife with a blade seven or eight inches long.

The complainant was a supervisor at a laundry where appellant had been employed. Two days after he had fired appellant for absenteeism, the complainant was on the way to visit a friend when he saw appellant walking along the sidewalk. He stopped and gave appellant a ride as far as his destination. A few minutes after the complainant had entered his friend’s house, appellant came to the door and asked to use the bathroom. She entered the house, walked into a back room, and shortly thereafter returned with her hands behind her back. Appellant walked over to where the complainant was sitting, leaned over as if to whisper in his ear, and stabbed him in the shoulder. She then backed away several feet and shouted, “Get up because you’re next on my list.” The complainant, who testified that he was in fear for his life, grabbed a chair with which to fend off appellant, after which appellant retreated to the front door and left.

“Deadly weapon” is defined in V.T.C.A., Penal Code, Section 1.07(a)(ll) as:

“(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

It has been held under the former Penal Code, as well as the present Penal Code, that a knife is not a deadly weapon per se. Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978); Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972); Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679 (1961); Henderson v. State, 55 Tex.Cr.R. 170, 115 S.W. 588 (1909); 4 Branch’s Ann.P.C., 2nd., ed., section 1573, p. 132.

Although a knife is not a deadly weapon per se, it has been held that it can qualify as such through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517 (1944); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Abels v. State, 489 S.W.2d 910 (Tex.Cr.App.1973). Under the former Penal Code there was no statutory definition of deadly weapon, Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1976). The current Penal Code, as above set out, does contain such a definition and broadens the above considerations to in clude “or its intended use.” Further, it has been held that the wounds inflicted on the injured is also a factor that is considered in determining the character of the weapon. Reed v. State, 149 Tex.Cr.R. 208, 192 S.W.2d 890 (1946); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972). This does not, however, mean that wounds must be inflicted before a knife can be determined to be a deadly weapon. Richards v. State, supra.

The evidence introduced at the trial showed that the complainant was stabbed with a seven or eight inch blade butcher knife and that he felt that the knife was a deadly weapon. The complainant testified as follows:

“Q. Okay. Now, after she stabbed you and backed off with the knife, started coming at you again, were you scared at that point?
A. Sure, Yes.
Q. What were you afraid she was going to do to you?
A. She was going to kill me. Thought she was going to stab me again.
Q. So you — at that time you were in fear for your life?
A. Yes, sir.
Q. And this particular knife, did you feel that it was a deadly weapon?
A. Yes, sir.
Q. Did you feel that it could kill you?
A. Yes, sir.
Q. How long was the blade again, about how long?
A. (Indicating)
Q. About like that, about what — seven, eight inches?
A. About seven or eight inches.
Q. It’s a butcher knife, is that right?
A. Butcher, Yes, sir.”

In this State, the opinions of lay witnesses, when competent, are admissible concerning sanity, insanity, value, handwriting, intoxication, physical condition— health and disease, estimates of age, size, weight, quantity, time, distance, speed, identity of persons and things. McCormick and Ray, Texas Law of Evidence, Sections 1421 through 1436. Surely one who observes and receives a wound from a butcher knife is capable of testifying that the knife is a deadly weapon capable of causing death or serious bodily injury. We decline to hold that further testimony is needed to justify the jury in finding such knife to be a deadly weapon. This is common knowledge that any lay witness is competent to testify to.

In the case of Acosta v. State, 77 Tex. Cr.R. 643, 179 S.W. 870 (1915), this Court held:

“Appellant contends that a razor is not per se a deadly weapon. We are inclined to believe that all mankind know that death can be inflicted by a razor in the hands of a grown man.”

In the recent ease of Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978), a robbery victim named Floyd testified that the appellant slipped up behind him and grabbed him, placed a knife in his throat, and stated, “Give me what you got.” After taking Floyd’s money, appellant came around to the front and stabbed him in the stomach. In connection with his wound, Floyd testified, “He stick me into my liver. Had to operate on me that night.” There was no medical testimony as to the nature or severity of the wounds or the operation, nor was there any evidence as to the size of the knife or expert testimony that it was capable of causing death or serious bodily injury. In a unanimous opinion by Panel No. 2, Second Quarter, 1978, this Court held:

“In the instant case while there was no medical testimony as to the nature of the wounds, and while the knife taken from appellant’s possession was not introduced into evidence, we conclude the evidence sufficient to show the knife used to be a deadly weapon. . . . The manner in which the knife was used and the wound inflicted were sufficient to bring the knife within the definition of the deadly weapon.”

As stated in the dissent in Harris v. State, supra, “To say that a four-inch bladed knife, whether it is a pocket knife or some other type, is not a deadly weapon unless an expert so testifies is to strain the bounds of reason.”

Insofar as Harris v. State, supra, or Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977), require such expert testimony, they are reversed.

Furthermore, the description of the weapon as a butcher knife with a seven or eight inch blade, and testimony concerning its intended use by appellant, was sufficient to authorize the jury to find such to be a deadly weapon.

The evidence in this case is sufficient to prove the knife a deadly weapon. The judgment is affirmed.

TOM G. DAVIS,

concurring in part and dissenting in part.

I concur in the result reached in the majority opinion insofar as it holds that the size of the knife, the mode and manner of its use, and the wounds inflicted on the injured party support a finding that the knife was a deadly weapon.

As was recognized in Harris v. State, 562 S.W.2d 453, it has long been held that a knife may qualify as a deadly weapon through the manner of its use and that the wounds inflicted on the injured party may be looked to in determining this issue. Under V.T.C.A. Penal Code, Sec. 1.07, the manner of the weapon’s “intended use” can be considered. See Limuel v. State, 568 S.W.2d 309. The holding in Harris “ . . . that the evidence regarding the ‘manner of its use or intended use’ is insufficient to show that the pocket knife was capable of causing death or serious bodily injury” was based on facts clearly distinguishable from the instant case. In Harris, neither the victim nor the witness saw a knife, there was no showing of blood on the pocket knife in the defendant’s possession, and the injuries were not considered serious enough by the victim or the investigating officer to require medical attention. While the officer witness in Harris described a movement of the defendant toward the victim as “It was kind of a slashing move,” he was unable to state which one of the parties had a weapon, much less identify what type of weapon was used, as evidenced by his testimony, “I felt like one of them [either the defendant or victim] had some type of weapon.” The tenuous facts of Harris are in sharp contrast to those in the instant case, and I cannot agree that the affirmance herein requires the overruling of Harris.

It is undisputed that a knife cannot qualify as a deadly weapon per se under V.T.C.A. Penal Code, Sec. 1.07(a)(11). The reversal in Danzig v. State, 546 S.W.2d 299, upon the insufficiency of the evidence to prove a pocket knife a deadly weapon is bottomed upon the facts of that case and does not stand for the proposition that expert testimony is required in every case to prove that a knife is a deadly weapon. In those instances where the manner of its use or intended use, its size and shape, and resulting injuries, if any, fail to prove deadly weapon, opinion evidence as to whether the knife was a deadly weapon may make the difference in meeting the burden of proof. I have no quarrel with the majority’s position that the opinion of a layman who observes and receives a wound from a knife should be able to express an opinion as to whether the instrument was a deadly weapon, but obviously such lay opinion is not entitled to the weight of an opinion expressed by a doctor who has experience in treating knife wounds, or the opinion of a veteran police officer who has investigated altercations in which knives have been used, or morticians who had had an opportunity to examine knife wounds which have resulted in death. Further, it is not unreasonable to expect that anyone who is attacked by a person wielding a knife will be so engulfed with fear as to produce an opinion that any knife, regardless of size or its use, would be a deadly weapon. Thus, insofar as the majority tends to equate lay opinion with that of experts, I cannot agree. In the final analysis, whether opinion evidence, if any, is necessary, and whether lay or expert opinion is required in proving that a knife is a deadly weapon, is going to depend upon a case-by-case analysis of the evidence. No hard and fast rule can be formulated.

Neither the affirmance herein nor the holding that lay testimony may be admissible on the question of whether an instrument is a deadly weapon requires the overruling of Harris and Danzig.

ROBERTS, ODOM and PHILLIPS, JJ., join in this opinion.


author: PHILLIPS, Judge. DALLY, Judge,

text:
    Ernest GARCIA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56470.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.
    H. Thomas Hirsch, Odessa, for appellant.
    John R. Hollums, Dist. Atty., Floydada, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from convictions for voluntary manslaughter (2) and aggravated assault (2). Punishment was assessed at 10 years’ imprisonment for each offense.

At the outset we note as unassigned error in the interest of justice (see Article 40.09, Section 13, V.A.C.C.P.) fundamental error in the court’s charge which mandates the reversal of appellant’s conviction for the voluntary manslaughter of both Carlos Mendoza and Juan Mendoza. The indictment charged that the appellant “intentionally and knowingly cause[d] the death of an individual, Carlos Mendoza, by shooting him with a gun, . . . .” The same allegation is in the indictment with respect to Juan Mendoza. That portion of the court’s charge which instructs the jury by applying the law to the facts of the case on both murder and voluntary manslaughter provided the jury with the alternative theory of murder provided for under V.T. C.A., Section 19.02(a)(2), i. e., “or did then and there intend to cause serious bodily injury to the said Carlos Mendoza and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit, shooting at Carlos Mendoza with a gun and causing the death of the said Carlos Mendoza, . . . .” The providing of an alternative theory for the commission of a charged offense in the court’s charge which is not alleged in the indictment constitutes fundamental error. See Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Shaw v. State, Tex.Cr.App., 557 S.W.2d 305; Robinson v. State, Tex.Cr.App., 553 S.W.2d 371.

The error created by the providing of an alternative theory upon which the jury could find the appellant committed murder is not rendered harmless or in any other way mitigated merely because the jury was at the same time instructed, under the instruction on voluntary manslaughter, on the “defensive” issue of “the immediate influence of sudden passion arising from an adequate cause.” Paige v. State, Tex., 573 S.W.2d 16 (1978); Braudrick v. State, Tex.Cr.App., 572 S.W.2d 709 (1978). The State is still obligated to prove beyond a reasonable doubt that the appellant committed the offense of murder and the provision of alternative theories to enable the jury to make that finding suffers the same fatal defect as the other cases in which this Court has found fundamental error to exist. See Armstead v. State, Tex.Cr.App., 573 S.W.2d 231 (1978); Smith v. State, Tex.Cr.App., 570 S.W.2d 958; Plunkett v. State, Tex.Cr.App. (No. 55,078, delivered November 15, 1978); Brewer v. State, Tex.Cr.App., 572 S.W.2d 940 (1978 — rehearing denied, November 15, 1978).

The judgment of conviction finding the appellant guilty of voluntary manslaughter of Carlos Mendoza and Juan Mendoza is hereby reversed and dismissed.

Regarding the remaining two judgments of conviction, another matter is presented to this Court which should also be considered in the interest of justice under Article 40.09, Section 13, V.A.C.C.P. The indictment under which the appellant was prosecuted contained four separate counts that charged the appellant with two murders and two aggravated assaults. Whenever a single indictment charges two or more distinct felonies in different counts, the accused may be convicted of only one count. Beaupre v. State, Tex.Cr.App., 526 S.W.2d 811; Easley v. State, Tex.Cr.App., 490 S.W.2d 570; Monroe v. State, 142 Tex.Cr.R. 239, 172 S.W.2d 699; Wimberley v. State, 94 Tex.Cr.R. 1, 249 S.W. 497. V.T.C.A., Penal Code, Sections 3.01 through 3.04, have abolished this rule with respect to offenses against property while at the same time providing for a severance upon request of the accused.

Since only one count of the indictment can support a judgment of conviction in these circumstances, and the two judgments of conviction for voluntary manslaughter have been reversed and remanded for the foregoing reasons, the judgment should be reformed to show that the appellant is convicted for one offense of aggravated assault and the sentence should be corrected to conform with the judgment. Beaupre v. State, supra.

Appellant’s single ground of error on appeal was concerning the trial court’s refusal to grant his specially requested instruction on the lesser included offense of involuntary manslaughter. See V.T.C.A., Penal Code, Section 19.05(a)(1) and Section 6.03(c). While we do not need to reach a decision on appellant’s contention, we direct the trial court’s attention to Brooks v. State, Tex.Cr. App., 548 S.W.2d 680; Jackson v. State, Tex.Cr.App., 548 S.W.2d 685; and McCartney v. State, Tex.Cr.App., 542 S.W.2d 156.

The two judgments of conviction for voluntary manslaughter are reversed and dismissed. The judgment of conviction for the aggravated assault upon Manuel Mendoza, Jr., is affirmed. The judgment of conviction for aggravated assault upon Frank Robledo is reversed and dismissed.

DALLY, Judge,

dissenting.

We need not determine whether the court’s charge on murder presents error since the jury found the appellant guilty of voluntary manslaughter, a lesser included offense. See, e. g., Brooks v. State, 143 Tex.Cr.R. 320, 158 S.W.2d 307 (1942); Goodgame v. State, 129 Tex.Cr.R. 250, 86 S.W.2d 753 (1935); Texas Digest, Homicide 340(4). That the charge on voluntary manslaughter may contain surplusage is of no importance. That charge contains the essentials. It authorizes the jury to convict the appellant for voluntary manslaughter if he caused the death of Carlos Mendoza under the immediate influence of sudden passion arising from an adequate cause.

There is another matter that should be considered. Although there was no objection to the misjoinder of offenses, the indictment has one paragraph containing four separate counts that charged the appellant with the murder of Carlos Mendoza and Juan Mendoza, and with committing aggravated assault upon Manuel Mendoza, Jr. and Frank Robledo. The usual and better practice would be to return four indictments. See Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), footnote 1. It has been consistently held that when in the same indictment two or more felonies are alleged in different counts the accused may be convicted of only one count. See, e. g., Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975); Easley v. State, 490 S.W.2d 570 (Tex.Cr.App.1972); Monroe v. State, 142 Tex.Cr.R. 239, 172 S.W.2d 699 (1943); Wimberley v. State, 94 Tex.Cr.R. 1, 249 S.W. 497 (1923). This rule, of course, does not now apply to offenses against property. V.T.C.A. Penal Code, Secs. 3.01, 3.02, 3.03, and 3.04.

Since the appellant may only be convicted under one count of the indictment, the conviction for voluntary manslaughter of Carlos Mendoza should be affirmed. The judgment and sentence should be reformed to show that the appellant is convicted for one offense of voluntary manslaughter and the sentence should be corrected to conform with the judgment. See Beaupre v. State, supra.

Although not considered in its original draft, the majority have now adopted and incorporated within its opinion the matter which I first discussed in the second and third paragraphs of this opinion. The majority should likewise adopt the first paragraph and affirm the judgment in this appeal.

I dissent to the reversal of the conviction for voluntary manslaughter.

      . The prosecutions for voluntary manslaughter or murder under this indictment must be dismissed since one of the four alleged felonies is herewith affirmed. We do not address the question of whether appellant can be reindicted separately for these offenses.

      . For the same reason set forth above and in Footnote 1, the prosecution under the instant indictment must be dismissed.


text:
    Ruben GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 56548.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.

      Gene A. Garcia, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Richard Silvas, Asst. Dist. Atty., Corpus Christi, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated assault on a peace officer. The punishment is imprisonment for three years.

It is the appellant’s contention that the evidence is insufficient to show that the peace officer was engaged in the discharge of his official duties at the time of the assault and that he was entitled to an instructed verdict of acquittal. It is also his contention that the trial court improperly refused to instruct the jury on the requirements of a lawful arrest without a warrant.

The appellant was involved in a fight on a dance floor at a Knights of Columbus Hall in Robstown. A security officer escorted the appellant out of the building and called the constable’s office for assistance. The complainant, a deputy constable, responded to the call. The security officer pointed to the appellant and told the deputy constable that appellant was one of the persons who engaged in the fight. The officer approached the appellant and told him he was under arrest. The appellant ran and as the deputy constable pursued the appellant turned and threw a knife at the deputy constable, wounding him in the abdomen. The deputy constable required hospital treatment for his wound.

V.T.C.A. Penal Code, Sec. 22.02, provides in pertinent part:

“(a) A person commits an offense if he commits assault as defined in Section 22.-01 of this code and he:
“(2) causes bodily injury to a peace officer in the lawful discharge of official duty when he knows or had been informed the person assaulted is a peace officer;
“(b) The actor is presumed to have known the person assaulted was a peace officer if he was wearing a distinctive uniform indicating his employment as a peace officer.” [Emphasis added.]

The appellant urges that the deputy constable was not in the lawful discharge of his official duty, because the arrest without a warrant was unlawful. Even if the appellant’s contention is correct that the arrest was unlawful, his contention that the officer was not in the lawful discharge of an official duty is without merit. The appellant relies upon George v. State, 506 S.W.2d 275 (Tex.Civ.App. Houston 1st Dist.1974) and Crow v. State, 152 Tex.Cr.R. 586, 216 S.W.2d 201 (1949). These cases were decided before the new penal code became effective and are no longer applicable. They held that since a person had a right to resist an unlawful arrest, a peace officer making an unlawful arrest was not acting in the lawful discharge of his duty.

V.T.C.A. Penal Code, Sec. 38.03 provides that a person may not lawfully resist an unlawful arrest. It is now a criminal offense to resist an officer even though he may be making an unlawful arrest. The reasoning used to support the holdings in George v. State, supra, and Crow v. State, supra, is no longer viable because of the change brought about by Sec. 38.03. Regardless of whether the appellant’s arrest was lawful or unlawful, the deputy constable was in the lawful discharge of his duty when he attempted to arrest appellant. It follows that the appellant was not entitled to an instructed verdict of acquittal and was not entitled to a jury instruction on the requirements of a lawful arrest without a warrant.

The judgment is affirmed.

      . V.T.C.A. Penal Code, Sec. 38.03(a) and (b) provide:
      “(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or search of the actor or another by using force against the peace officer or another.
      “(b) It is no defense to prosecution under this section that the arrest or search was unlawful.”


author: VOLLERS, Judge. ROBERTS, Judge,

text:
    Kenneth JAMAIL, Appellant, v. The STATE of Texas, Appellee.
    No. 56863.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 13, 1978.

      Jimmy James, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and R. P. Cornelius, Asst. Dist. At-tys., Houston, for the State.
    Before the court en banc.
   OPINION

VOLLERS, Judge.

This is an appeal from a conviction for delivery of cocaine. Appellant entered a plea of guilty before the court and his punishment was assessed at confinement in the Texas Department of Corrections for five (5) years.

Appellant’s sole contention is that the trial court failed to properly admonish him as required by V.T.C.A., C.C.P. Article 26.-13, by failing to state that the court is not bound by any recommendation of the prosecuting attorney, before the court accepted his guilty plea. The relevant portions of Article 26.13 in effect at the time of appellant’s plea provided that:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.

The record reflects that on February 7, 1977 appellant filed with the clerk the following documents: (1) “Plea of Guilty” which includes affirmations that appellant waived his rights to arraignment and the reading of the indictment, voluntarily pled guilty and fully understood “that the judge is not bound to follow recommendations, if any, concerning punishment herein . . .” This document was signed by appellant, his trial attorney, and further reflected, in the form of an entered order, the acceptance of the plea by the trial court; (2) “Waiver of Trial by Jury in Felony less than Capital” which is signed by appellant and approved by both his trial counsel and the court; (3) “Stipulation of Evidence” which includes waivers of appellant’s rights to appearance, confrontation and cross-examination of witnesses, as well as his right against self incrimination, and also contained a handwritten admission of guilt, signed by appellant and approved by his attorney and the trial court.

On February 7,1977, upon entry of appellant’s guilty plea, the trial court’s admonishment was as follows:

THE COURT: All right, you waive arraignment and the reading of the indictment?
MR. ANDREWS [Defense Counsel]: We do, Your Honor.
THE COURT: All right. What is your plea to the indictment? You’re charged — you know what you’re charged with — delivery of a controlled substance, cocaine.
THE DEFENDANT: Yes, sir.
THE COURT: What is your plea?
THE DEFENDANT: Guilty.
THE COURT: You pleading guilty solely because you are guilty and not based upon any consideration of fear or hope of pardon or force or anything along that line?
THE DEFENDANT: Yes, sir. Yes, sir.
THE COURT: You want to waive a jury and try it before the Court?
THE DEFENDANT: Yes, sir.
THE COURT: You have that right to try it.
THE DEFENDANT: Yes, sir.
THE COURT: I can give you anything from ten to two years and/or $5,000 fine. That’s the range of punishment. Is it twenty?
MR. STRIPLING [Prosecutor]: Five to life. Delivery of cocaine is first.
THE COURT: Oh, this is first. I can give you anywhere from 5 to life or 99 years. That’s a great difference; isn’t it? I’m not saying that I am. But I’m saying that I could do it if I want to. All right. You’re in your right mind; you know exactly what you're doing; you’re pleading guilty solely because you want to and because you are guilty?
THE DEFENDANT: Yes, sir.
THE COURT: All right, sir. Good enough for me.”

The prosecutor was then allowed to question appellant as to whether he had read the “Plea of Guilty” document, consulted with his attorney regarding its contents and found all statements in it to be true. On concluding the questioning, the prosecutor had the “Plea of Guilty” form marked and introduced as State’s Exhibit No. 1, whereupon the court inquired:

THE COURT: What is . . . your recommendation?
[PROSECUTOR]: Your Honor, this is for a presentence investigation, without a recommendation from the District Attorney’s office. (Emphasis supplied.)

The court proceeded to order that a pre-sentence investigation be made and then stated:

THE COURT: * * * Based upon the testimony, I find you guilty as charged in the indictment and order a presentence investigation which we’ll . give them one month to complete .

It is undisputed that the trial court did not orally admonish appellant that the court was not bound to follow any recommendation as to punishment made by the State. It is likewise undisputed that the State made no recommendation. Therefore, at the outset we are confronted with the question of whether, when no recommendation exists, the trial court is nevertheless required to advise the accused that he is not bound by “any” recommendation in order for the court’s admonishment to be in substantial compliance with the requisites of Article 26.13, supra. We hold that the trial court is not so required.

In Richards v. State, 562 S.W.2d 456 (Tex.Cr.App.1978) we stated in n. 1 that since the plea of guilty in that case was before a jury, . . the necessity of admonishing appellant that the prosecuting attorney’s recommendation was not binding on the court” was obviated. We see no distinction between the propriety of the application of such a rule in Richards, supra, and the instant case, where the absence of a recommendation by the State likewise dispenses with the need to recite the provision of Article 26.13(a)(2) C.C.P. We therefore hold that an otherwise regular admonishment which deletes the content of subsection (a)(2) regarding the court’s independence from a recommendation by the State in setting punishment substantially complies with the provisions of Article 26.13 when no such recommendation is made by the State.

Having found that the admonition in the instant case substantially complies with the requisites of Article 26.13, supra, we now turn to the question of whether the appellant has affirmatively shown “that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court,” V.T.C.A., C.C.P. Article 26.13(c).

Appellant neither suggests that he was misled, nor that he was harmed by the court’s admonishment. No allegation has been urged that appellant’s plea was involuntary or that appellant was unaware of its consequences. The record reflects no objection to the admonishment at the time the trial court accepted appellant’s plea, and no objection was raised by motion for new trial. It is well settled that “where there is no showing that a defendant was prejudiced or injured by the failure of the trial court to fully comply with Article 26.13 . . . that failure to fully comply will not constitute reversible error on appeal.” [Emphasis original.] Guster v. State, 522 S.W.2d 494, 495 (Tex.Cr.App.1975). See also Richards v. State, supra; Beiersdorf v. State, 532 S.W.2d 632 (Tex.Cr.App.1976); Pinson v. State, 530 S.W.2d 946 (Tex.Cr.App.1976); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975); Williams v. State, 522 S.W.2d 488 (Tex.Cr.App.1975).

In Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1976), we recommended that upon entry of a guilty plea the trial court make inquiry as to whether such plea is the result of negotiations and, if so, determine the terms of the agreement. We have also stated:

[W]e commend as better practice a procedure whereby the trial judge on the record informs the defendant and the attorneys for both the defense and the State that they have a duty to enumerate to the court and upon the record the details of any agreements that may have been reached as a result of plea negotiations. Cruz v. State, 530 S.W.2d 817, 822 (Tex.Cr.App.1975).

Like the instant case, Gibson and Cruz, supra, are decided under prior law before Article 26.13 specifically provided for such a procedure. The fact of subsequent codification reaffirms the vitality of these concepts as applicable to appellant’s trial. In the case at bar, the trial court made the necessary inquiry regarding the possibility of plea negotiations and a concomitant recommendation by the State. The inquiry is plainly set out in the record before us. Having been informed that the State had no recommendation as to appellant’s punishment, it is clear that the court was under no duty to address that issue further. No prejudice, harm, or injury of any kind has been alleged or shown by appellant.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

For the reasons stated in the dissenting opinion in Kidd v. State, 563 S.W.2d 939, 940-942 (Tex.Cr.App.1978), I would hold that the trial court failed to comply with the requirements of Art. 26.13(a)(2), V.A.C. C.P. The judgment should be reversed.

PHILLIPS, J., joins in this dissent.

      . See verbatim recitation of “Plea of Guilty” form executed and filed in Williams v. State, 522 S.W.2d 483, 484-85 (Tex.Cr.App.1975), which is identical to the one used here with the exceptions, of course, of information filled into blanks.

      . Such order was apparently made pursuant to appellant’s Motion for Probation which was also filed on February 7, 1977.

      . We point out that, in addition to the portion of the Statement of Facts containing a guilty plea and the question/answer admonishment by the court before accepting such plea, it is wholly appropriate for us to review the entire record in order to determine whether such plea was entered voluntarily and knowingly. Williams v. State, 522 S.W.2d 483 (Tex.Cr.App. 1975); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Appellant here raises no issue regarding the voluntariness or intelligence of his plea, but rather, couches his complaint in terms of the trial court’s alleged failure to comply with the mandatory directives of the Texas Statute, Article 26.13, supra.

      . It should be noted that Article 26.13 was amended by Acts 1977, 65th Leg., Ch. 280, p. 784, Section 1, effective August 29, 1977, and subsection (a)(2) now reads: “The fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere . . . .” (Emphasis supplied.)

      . Stated the Court in Cruz, supra, at 821: “We are . . . convinced that justice would be better served by a procedure calculated to clear the atmosphere surrounding the plea negotiating process. Defendants now commonly deny during an Art. 26.13, V.A.C.C.P., inquiry that any promises have been made that induced a plea of guilty, when in fact the prosecutor has promised to recommend a certain sentence in exchange for the plea. The deceptive denial stems from the fear that the trial court will not accept the plea if the question is answered truthfully. The fear is misplaced because a plea bargain per se does not vitiate the volun-tariness of a guilty plea.”

      . See N. 4, supra.


author: DOUGLAS, Judge. PHILLIPS, Judge,

text:
    Ex parte Lester Obie ARNOLD.
    No. 57609.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 13, 1978.

      No attorneys appearing.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is a postconviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

Petitioner was convicted in Cause No. F77-932-IJ in the Criminal District Court No. 3 of Dallas County for a subsequent offense of driving while intoxicated. The court assessed his punishment at two years, probated.

The prior misdemeanor conviction for driving while intoxicated was obtained on February 2, 1972, in Cause No. CCR72-4373-B. Petitioner entered a plea of guilty to the present offense on April 8,1977. No appeal was taken. Then, on September 7, 1977, petitioner filed an application for writ of habeas corpus in the trial court contending that the prior conviction in Cause No. CCR72 — 4373-B had been set aside and the complaint and information had been dismissed.

The trial court’s findings of fact disclose that petitioner was assessed a fine of $125.00 and a jail term of thirty days in the prior offense. The jail term was probated for a period of one year. Petitioner successfully completed the probationary term and on January 5,1974, the prior conviction was dismissed. The present offense did not occur until November 28, 1976.

Petitioner argues that the conviction in the prior offense failed to meet the requirements of a final conviction and could not be used to transform the subsequent driving while intoxicated offense into a felony. He thus contends that the trial court did not have jurisdiction of the present offense.

In McKenzie v. State, 159 Tex.Cr.R. 345, 263 S.W.2d 562 (1953). The defendant was prosecuted under an indictment which charged that he had committed a subsequent offense of driving while intoxicated. The State failed to establish the allegation of the prior conviction. On appeal, the Court stated that the misdemeanor offense of driving while intoxicated was included within the allegations of the indictment and was a constituent element of the felony offense charged. The Court held, therefore, that the criminal district court had jurisdiction over such misdemeanor offense when the State failed to prove the felony.

Because the facts which controlled in McKenzie exist here, we find that the trial court had jurisdiction to entertain the cause.

However, petitioner is entitled to partial relief since the court was authorized to convict petitioner of the lesser included offense only. See Evans v. State, 402 S.W.2d 756 (Tex.Cr.App.1966); McKenzie v. State, supra. Although a judgment of conviction for the felony was entered, we perceive the error to relate essentially to punishment.

The judgment in Cause No. F77-932-IJ is set aside but the cause is remanded for proceedings consistent with this opinion. The trial court is instructed to enter a judgment of conviction for the misdemeanor offense of driving while intoxicated and to assess the punishment accordingly. Ex parte Murillo, 528 S.W.2d 127 (Tex.Cr.App.1975); Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App.1977). See Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976).

It is so ordered.

PHILLIPS, Judge,

dissenting.

It is undisputed that the prior driving while intoxicated charge alleged in the indictment as a necessary condition precedent to invoking the jurisdiction of the felony tribunal was nonexistent. See Article 42.-13, Sections 4(a), 7(a) and (b), V.A.C.C.P. Thus, the felony court lacking jurisdiction, the felony conviction is void. Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.); Ex parte McGee, 552 S.W.2d 850 (Tex.Cr.App.); Ex parte Sealy, 563 S.W.2d 817 (Tex.Cr.App.); Ex parte Pribble, 548 S.W.2d 54 (Tex.Cr.App.); Article 6701/-2, V.A.C.S.; Article 6701/-1, V.A.C.S.

The judgment should be reversed and the prosecution in the felony tribunal (district court) dismissed. For the foregoing reasons, I dissent.


author: ODOM, Judge.

text:
    Charles Albert BRIDGES, Appellant, v. The STATE of Texas, Appellee.
    No. 59062.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 13, 1978.
    Steven F. Gamble, Longview, court appointed on appeal, for appellant.
    Odis R. Hill, Dist. Atty., Longview, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment, assessed under V.T.C.A., Penal Code Sec. 12.42(c), is fifty years.

By supplemental brief counsel urges fundamental error in the jury charge. The indictment alleges that appellant did:

“. . . while in the course of committing theft, knowingly and intentionally place Juanita Dorsey in fear of imminent bodily injury by exhibiting a deadly weapon, namely, a handgun, with the intent to obtain control of $350.00 money of the United States, the property of Juanita Dorsey, without her effective consent and with the intent to deprive her of her property. . . .” (Emphasis added.)

It is plain that this indictment charges aggravated robbery under parts of V.T.C.A., Penal Code Secs. 29.02(a)(2) and 29.03(a)(2):

“Sec. 29.02. Robbery
“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) . . . (Emphasis added.)
“Sec. 29.03. Aggravated Robbery
“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon. “(b) . . . (Emphasis added.)

The jury was instructed, in the application of the law to the facts, to convict appellant if they found facts under any theory of aggravated robbery:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 9th day of December, 1975, in Gregg County, Texas, the Defendant, Charles Albert Bridges, with intent to deprive Juanita Dorsey, the owner, of her personal property, to wit, money belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Juanita Dorsey said money belonging to Juanita Dorsey, and that the Defendant, in so doing, and with intent to obtain or maintain control of said money, then and there intentionally or knowingly caused bodily injury to said Juanita Dorsey or the Defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that the defendant, in committing the foregoing acts, if you do so find, caused serious bodily injury to Juanita Dorsey or that Defendant used or exhibited a deadly weapon, to wit, a firearm, then you will find Defendant guilty of aggravated robbery, as charged in the indictment.” (Emphasis added.)

The jury charge manifestly went beyond the allegations of the indictment in its authorization for a guilty verdict: it submitted the theories of causing bodily injury, Sec. 29.02(a)(1), of threatening imminent bodily injury or death, Sec. 29.02(aX2), of placing in fear of death, Sec. 29.02(a)(2), of causing serious bodily injury, Sec. 29.-02(a)(1), of using a deadly weapon, Sec. 29.02(a)(2), and submitted the description of the deadly weapon as “a firearm” rather than the more specific “handgun” as alleged in the indictment.

It is clear that the jury charge went far beyond the allegations of which appellant was informed in the indictment. Under recent authority this error is fundamental and requires reversal. Jones v. State, Tex.Cr.App., 566 S.W.2d 939; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Robinson v. State, Tex.Cr.App., 553 S.W.2d 371.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge.

text:
    Gaylord Loverne LISNEY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 59475, 59476.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 13, 1978.

      John H. Tull, Jr., Amarillo, for appellant.
    Dale Paul Summa, County Atty., Sherman, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

These are appeals from a conviction for a violation of an occupational driving license restriction and a conviction for driving while intoxicated. Appellant entered pleas of guilty in both causes and the court assessed punishment in the first cause at three (3) days in jail and a fine of $500.00 and in the second cause at thirty-two (32) days in jail and a fine of $500.00.

Appellant contends that the trial court erred in trying him without representation of counsel when the record fails to reflect that he voluntarily and knowingly waived his right to counsel and further fails to reflect that he was made aware of the dangers and disadvantages of self-representation.

The majority of the court has held that a person charged with a misdemeanor is entitled to counsel only if imprisonment is actually imposed. Empy v. State, 571 S.W.2d 526 (Tex.Cr.App.1978). Thus, in the instant case not only did the possibility of imprisonment exist, but imprisonment was actually imposed on the appellant. He was entitled to counsel.

The State contends that appellant waived his right to counsel and points to various instruments in the record to support that contention.

On the issue of waiver of counsel, this court stated in Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.1978):

“However, an accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. Faretta v. California, 422 U.S. 806,95 S.Ct. 2525,45 L.Ed.2d 562 (1975); Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App.1977). To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra; Thomas v. State, supra. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself. Thomas v. State, supra; Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976). In Faretta v. California, supra, the Supreme Court held that the record should reflect that the defendant waived his right to counsel only after being made aware of the advantages and disadvantages of self-representation so that it is clear that he “knows what he is doing and his choice is made with eyes open. 425 U.S. at 835, 95 S.Ct. at 2541.”

The record before us contains no statement of facts and both briefs state that no court reporter was present at trial and no testimony was introduced into evidence by the State. The instruments in the record of each cause pointed to by the State to show waiver are:

(1) An instrument entitled “Affidavit and Waiver” which was signed by appellant prior to trial and which states, “The Judge informed me of my right to retain Counsel” and “The Judge informed me of my right to request the appointment of Counsel if I were unable to obtain Counsel.”
(2) A document entitled “Waiver of Appointment of Attorney by Defendant Entering Plea of Guilty,” also signed by appellant prior to trial, which states, “Now Comes the undersigned Defendant in this cause and represents to the Court that he has no attorney, that he does not intend to employ counsel herein, and that he waives any right he may have, on application therefor, to have the Court appoint an attorney to defend him in this cause.”
(3) An instrument entitled “Judgment” of the court which states “. said defendant waived representation by counsel . . . ”
(4) The “Sentence” instrument which states, “On this day the above entitled and numbered cause being again called, the State appeared by her County Attorney and the defendant appeared in person, having heretofore waived representation by counsel . . .”
(5) The docket sheet entry which reads in part: “Defendant appeared in person, waived representation by an attorney, announced ready for trial, waived trial by jury, waived presentation of testimony on part of the State, and pleaded guilty to the information.”

In Ex parte Ross, 522 S.W.2d 214 (Tex.Cr. App.1975), we held that instruments containing recitals such as those in this record tended to establish a knowing and intelligent waiver, but that they were not conclusive proof of such fact. We did find proper waiver in that case based on the defendant’s testimony coupled with the recitals in the instruments.

Here the instruments are all that we have before us. At best, they show that appellant was informed as to his right to counsel, that he had not retained an attorney and did not intend to do so, that he waived his right to have the court appoint an attorney for him, and that he waived representation by counsel or an attorney. The record does not show the appellant’s age, occupation, educational background, previous court experience, etc., so as to show that waiver of the right to counsel was knowing and intelligent; nor was there any showing that appellant was made aware of the disadvantages of self-representation as required by Faretta v. California, supra, and Webb v. State, supra. As the Supreme Court held in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962):

“The record must show . . . that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

The record before us not being sufficient to show that appellant knowingly and intelligently waived his right to counsel after being made aware of the advantages and disadvantages of self-representation, the judgments are reversed and the causes are remanded.

      . See and cf. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App. 1972).