author: OLIVER, Judge. GALBREATH, Judge

text:
    John NIX, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 18, 1975.
    Certiorari Denied by Supreme Court June 30, 1975.
    Certiorari Denied Oct. 20, 1975.
    See 96 S.Ct. 218.

      Robt. W. Ritchie and Joseph M. Tipton, Knoxville, for plaintiff in error.
    Milton P. Rice, Atty. Gen., David L. Ray-bin, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, for defendant in error.
   OPINION

OLIVER, Judge.

Represented by retained counsel, Nix was convicted of possessing more than one-half ounce of marijuana with the intent to sell it, for which he was sentenced to imprisonment in the penitentiary for not less than one nor more than five years and to pay a fine of $3,000. (TCA § 52-1422, Schedule VI; TCA § 52 — 1432(a)(1)(F)). He has perfected an appeal in the nature of a writ of error to this Court.

We address first the defendant’s second, third, fourth and fifth Assignments of Error which, collectively, charge that he was illegally arrested without probable cause, that he was interrogated without being advised of his constitutional rights, and that the trial court erred in failing to suppress the defendant’s pre-trial custodial statements and evidence obtained by a warrant-less search of his apartment to which he did not freely and voluntarily consent. All of these questions were properly raised by defense motions to suppress evidence, which were heard and overruled by the trial court before selection of the jury.

We summarize the material evidence adduced in the suppression hearing, which consumed two days and occupies 292 pages of this record. It was developed that information reached the Knoxville FBI office that a young white man driving a blue Volkswagen bus, bearing Texas license plates, had exchanged a number of small denomination bills for larger bills at several banks; and that about 2:00 p. m. on February 1, 1873, as the defendant parked his Volkswagen bus on the University of Tennessee campus, three FBI agents approached the bus on the driver’s side and identified themselves to the defendant.

FBI Agent Phillips testified that the defendant was not placed under arrest; that he was advised of all of his Miranda rights with the exception of the right to have the court appoint a lawyer for him if he could not afford one; that he was asked to sit in the FBI car (it was raining slightly) and talk with them about the money; that in the car the defendant explained that he had won the money gambling and felt he would have a better chance to exchange it for larger bills if he went to several banks rather than just one; that he did not reply when asked why he did not do that at the place he won the money gambling; that he said some of the money was in his apartment; that he told the agents he was a senior at UT majoring in psychology, and that he had been dropped from the football squad because he admitted to Coach Battle that he had smoked marijuana; that he was then asked whether he had any contraband or any illegal narcotics at his residence, and he replied he only had a margarine butter dish of marijuana for his personal use, and said he also had there a .22 caliber derringer; that the agents explained to him they would like to check the serial numbers on the bills and asked him if he would consent to a search of his apartment and he agreed; that, after dismissing the defendant’s wife to go to her classes at the university, they went to the defendant’s apartment, the defendant driving his bus and accompanied by one agent and the other two agents following in the FBI car; that enroute to the apartment, the defendant stopped at a filling station and bought gasoline, and that he was under no restraint and was not under arrest or being held in custody; that it is FBI procedure to always place a suspect in handcuffs after arresting him, and that the defendant was never handcuffed or searched or restrained in any way by the FBI agents and he was never arrested by any of them; that when they got to the apartment and entered the living room Agent Phillips read to the defendant a consent-to-search form and asked him to sign it, and the defendant read the form himself and inquired what would happen if he did not sign it and Agent Phillips replied that a request would be made for a search warrant; that the defendant asked the agents to step outside for a few minutes and when he was told they could not do so he signed the form; that the agents then asked him for the marijuana and he produced a very small amount of it which he said was for his own use, and he showed them where the derringer was when they asked about it; and that when they asked him for the money he produced it and counted it in their presence, the aggregate amount being $9290.

While they were counting the money, Knoxville Police Officers arrived. Agent Phillips explained to them what had happened and showed them the consent-to-search form signed by the defendant. Lieutenant Norman, of the Knoxville Police Department Narcotics Division, testified they were there as a result of a call from their dispatcher to meet the FBI at the apartment; that he shook hands with the defendant and advised him orally of his rights and asked him if the narcotics division officers could search his apartment and the defendant agreed; that during the search eight one-pound bricks of marijuana were found; that the defendant was under no restraint until he was taken into custody and placed in the police car; and that he was again advised of his rights enroute to the police station.

The defendant testified in the suppression hearing that he spent the morning of February 1, 1973 going to several Knoxville branch banks exchanging small bills for larger ones, and then he and his wife started to their classes at UT; that the FBI agents identified themselves but did not inform him of his rights and asked him a few questions about changing the money; that they told him to get in the FBI car and he did so, but was not threatened or forced, and they still did not advise him of his rights; that they told him they wanted to see the money and said nothing about wanting to search his apartment; that one of the agents went with him when he went back to his bus to talk to his wife, and then she was released to go to her classes; that he drove his bus to his apartment with one agent accompanying him and the others following in the FBI car; that when they reached the apartment he asked the agents if they wanted to see the money, and Agent Phillips presented a consent-to-search form and said they would like for him to sign it, and he read it over and told them he wasn’t going to sign anything like that; that they told him he would have to sign the form, and that they could get a search warrant by simply making a telephone call; that when he asked the agents to step outside they laughed at him and told him they could not do so, and laughed again and told him to sign the form when he asked them if they were not going to leave, and that he then signed the form, feeling that he had no other choice although he realized the document stated he could refuse to permit a search; that the agents then asked to see the marijuana and the gun and the money; that he was a psychology major at the university at the time; that he turned over the money, $9290, to the FBI and that this money was his and he had other funds at his disposal and he was not indigent and had hired his attorney; that he lied to the agents when he told them he won that money gambling; that as he and the agents went to his apartment it was on his mind that he had marijuana and $9290 there and that he had acquired that money by selling marijuana, and the reason he wanted the officers to leave before he signed the consent form was that he did not want them to find the money and marijuana; that the marijuana found in his apartment was his; and that the FBI agents never informed him that he was under arrest or told him he could not go outside if he wanted to and permitted him to use the telephone, and the bathroom with the door open; that the agents told him he was only making trouble and he would be bringing his wife into the trouble if he did not cooperate; and that when the Knoxville Police arrived he did not consent to their searching his apartment and the first time he was advised of his rights was enroute to the city jail in the police ear.

A clinical psychologist testified as a defense witness that he found the defendant to be passive, introverted and indecisive and that he would tend to give in easily in a crisis situation and to become flustered and easily intimidated before authority figures.

At the conclusion of the suppression hearing, the trial judge carefully reviewed the testimony and found as fact (1) that the defendant was never arrested by the FBI agents, although they had probable cause for doing so, and (2) that the defendant was an intelligent and educated young man and understandingly and voluntarily signed the consent form and consented to the search of his apartment. Accordingly, the court overruled the motion to suppress “as to each and every ground.”

We are bound to adhere to the settled rule that the findings of the trial court, upon questions of fact, are conclusive unless this Court finds that the evidence preponderates against the lower court’s judgment. Bratton v. State, Tenn.Cr.App., 477 S.W.2d 754. The Supreme Court of this State has held repeatedly that the findings of a trial judge in an oral hearing after seeing and hearing the witnesses testify and hearing and considering conflicting testimony, will be given the weight of a jury verdict. Taylor v. State, 180 Tenn. 62, 171 S.W.2d 403; Atlas Powder Company v. Leister, 197 Tenn. 491, 274 S.W.2d 364; Bratton v. State, supra. This record fully sustains the trial judge’s finding that the defendant knowingly and voluntarily consented to the search of his apartment.

“All of the authorities agree a defendant may waive his rights relative to searches and seizures under the Constitutions of the United States and Tennessee. The question of whether or not there was such a waiver and consent to the search is one for the Trial Judge in the first instance.” Shafer v. State, 214 Tenn. 416, 425, 381 S.W.2d 254, 258.

With respect to the failure of the FBI agent to advise the defendant of his right to have an attorney appointed to represent him if he could not afford to hire one, it is sufficient to say that only an indigent must be advised of the right to appointed counsel. Carter v. State, 1 Tenn. Cr.App. 545, 447 S.W.2d 115; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Note 43. As above noted, by his own testimony at the suppression hearing the defendant testified that he was not indigent.

The defendant’s first Assignment of Error relates to the trial before the jury and, in essence, assails his conviction upon the usual ground that the evidence preponderates against the verdict and in favor of his innocence. This Assignment and Assignments six, seven, eight, nine and ten all relate to his contention that the State failed to prove the marijuana confiscated in his apartment was the species cannabis sativa L which was outlawed by the statute at that time. His claim is that there are three species of the genus cannabis and that it was impossible for anyone to tell to which of the three species (one of which is sativa L) the marijuana in his apartment belonged.

In his opening statement before the jury, the defense counsel admitted “that John Nix did possess a substance which the State alleges is marijuana,” and stated the defendant’s theory to be that, in addition to the statutory definition of marijuana as cannabis sativa L, there is another species known as cannabis indica and a third one known as cannabis ruderalis, and that a toxicologist being a chemist is not qualified to distinguish between the three different species, “And that therefore, there must be a reasonable doubt as to whether or not the substance introduced in this case is in fact cannabis sativa L.”

In the trial before the jury, the testimony of FBI Agent Phillips and Knoxville Police Lieutenant Norman was substantially the same as they gave in the suppression hearing. Of course, since the defendant elected not to testify before the jury, the State made no attempt to refer to or admit statements he made in his own testimony during the suppression hearing.

The defendant complains specifically that the trial court erroneously and prejudicially denied him the right to examine John Barbara as to whether he was qualified as an expert witness with reference to the plant cannabis. The significance attached by the defendant to the point thus raised is that at the time of his indictment and trial TCA § 52 — 1409(n) provided in pertinent part: “ ‘Marijuana’ means all parts of the plant [cannabis sativa L] ,” and that actually there are three species of the genus cannabis, and that in order to convict him it was incumbent upon the State to prove beyond a reasonable doubt that the substance he possessed was cannabis sativa L and that the State failed to do so.

Although irrelevant to the case at hand, it is noted that subsequent to the defendant’s trial the words “sativa L” were deleted from the statutory definition of marijuana by Chapter 741 of the Acts of 1974, which became effective on 5 April 1974.

When Mr. Barbara was called by the State as an expert witness, defense counsel raised a question as to his qualifications as such. After extended examination and 11 pages of cross-examination, in the course of which he detailed his education and training and experience as a toxicologist and his occupation as technical director of Tennessee’s Region III Forensic Science Laboratory, his training and experience in the analysis of various drugs including marijuana and LSD, and his experience in some 2,000 to 3,000 toxicological examinations of various substances and his testimony in court in more than 100 cases as an expert witness in the field of toxicology and identification of substances, the court found that he was an expert witness and so instructed the jury. The question of the competency and qualification of witnesses is to be determined by the trial court. Harris v. State, 3 Tenn.Cr.App. 64, 457 S.W.2d 370.

Mr. Barbara received the confiscated marijuana for toxicological analysis. He testified that the material tested positive for the presence of tetra hydrocannabinol, a chemical compound commonly referred to as THC, which he stated is found only in cannabis sativa L. He testified also that, although he has never studied the botanical classification of the genus cannabis himself, he knows of no other species of this genus than sativa L, and that in his studies and experience he has never heard any convincing or authoritative evidence that there is more than the one species of cannabis, and that the literature of the Bureau of Narcotics and Dangerous Drugs and all the information he had received from the government show only the one species — cannabis sativa L.

Barbara said on cross-examination (which fills an additional 23 pages of the trial record) that he is a chemist and not an expert in botany; that sativa L is a botanical name given to the plant by a taxonomist in the Eighteenth Century; that he is not qualified to classify plants botanically; that sativa L is the species of the genus cannabis, which belongs to the family Cannabina-ceae and he knows of no other species of cannabis, but has not made a study as to whether there is more than one species; that he is not familiar with the book Flora Europaea nor with a treatise entitled Flora U.S.S.R. He had read the chapter on cannabis in Harvard botany professor Dr. Richard E. Schultes’ book entitled The Botany and Chemistry of Hallucinogens, and said that was the only place he had ever seen a statement in print that there is more than one species of marijuana or cannabis. Asked whether he recognized Dr. Schultes as an expert in the field of botany, he said: “Well, as a chemist, I could not recognize someone in another profession.” On re-direct examination he testified that his sources of information define cannabis ru-deralis and cannabis indica, mentioned in Dr. Schultes’ book, as sub-divisions or varieties of sativa L.

During the trial the court permitted the sworn testimony of defense witness Dr. William McKinley Klein, Jr. to be tape-recorded by the official court reporter in the presence of the court and counsel, and permitted that recording to be played before the jury. Dr. Klein, a taxonomist and assistant director of the Missouri Botanical Garden, gave an extended discussion of the science of taxonomy, stating that essentially a taxonomist is engaged in the botanical identification and classification of plants. He testified that taxonomists are the only persons capable of classifying plants according to genus and species, and that toxicologists are not qualified to do so; that the genus cannabis is polytypic, which means it has more than one species, and that the three species of cannabis are (1) cannabis sativa L, classified in 1753, (2) cannabis indica, classified in 1783, and (3) cannabis ruderalis, classified in 1924; that the latter two species were of Asiatic and European origin, respectively, and had not met with intensive research or notice in this country until the last few years; that “insofar as we know” each of the three species contains the chemical compound tetra hydrocannabi-nol and that, therefore, a chemical test could not differentiate the three species; that he could not determine the species of the cannabis confiscated and admitted in evidence in this case, because of its processed condition. He admitted that some treatments of this subject had listed cannabis indica and cannabis ruderalis as sub-species of cannabis sativa L. He also admitted that there was at the moment a difference of opinion in the discipline as a whole as to this question, but said those who have done recent research support the polytypic view. He also said that some of each of the three species may not show the presence of tetra hydrocannabinol under certain conditions, such as the place of growth, the type of soil, the amount of rainfall, etc. During direct examination by defense counsel he identified The Botany and Chemistry of Hallucinogens and said the authors are considered reputable authorities in that field. The court sustained the State’s objection when defense counsel moved to admit the book in evidence for use in cross-examination. In cross-examination, the Assistant District Attorney General called to Dr. Klein’s attention the same book and read statements therein and asked whether he agreed and Dr. Klein then read another statement in it.

Dr. Aaron J. Sharp, a defense witness who is a botany professor at the University of Tennessee and specializes in plant taxon-oin,, testified that according to his research there were two or three species of the genus cannabis in the United States, and that they cannot be differentiated by chemical tests, and that taxonomists are the only people who can do so, and that in its present condition he could not be sure that the confiscated material was cannabis and it would be impossible to say what species it was. Dr. Sharp testified on direct examination that Dr. Schultes’ book “. . . is a top book as is Dr. Schultes a top man in this field in the United States,” and that he had read the portion dealing with cannabis. When defense counsel asked Dr. Sharp to read two paragraphs from the book, to impeach Mr. Barbara, the trial court sustained the State’s objection. When Dr. Sharp identified Flora Europaea as an authoritative work in the field of plant taxonomy and said he knew the authors and was asked and stated that this book shows two species of cannabis that occur in Europe, the State’s objection that this was hearsay was sustained and the jury was instructed to disregard the witness’ statements as to what the book said.

The weight and value of expert testimony is for the jury and must be received with caution. Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149; Sparkman v. State, Tenn.Cr.App., 469 S.W.2d 692.

As the sole and exclusive judges of the evidence and of the credibility of the witnesses and the weight and value to be given to the swearing of each and every witness in the case, Gordon v. State, Tenn. Cr.App., 478 S.W.2d 911; Bailey v. State, Tenn.Cr.App., 479 S.W.2d 829, the jury accredited full credence to the testimony of Mr. Barbara that the marijuana admittedly possessed by the defendant was the type proscribed at that time by TCA § 52-1409(n) — cannabis sativa L. That settled the matter under the established rules governing appellate review of the evidence in criminal cases when its sufficiency is challenged on appeal. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223.

There is no merit in the defendant’s complaint that the trial judge sustained the State’s objection to a hypothetical question posed to Mr. Barbara as to whether the chemical compound THC was present in any other plant. The court properly sustained objection to that question, for the simple reason that at that time there was no evidence in the record that this substance may be found in any other plant. Hypothetical questions may not be based upon assumed facts not in evidence. Bailey v. State, supra.

We also find, in the total context of this record, that the trial court did not err in disallowing the defendant’s witnesses Klein and Sharp to put into evidence certain portions of the scientific works herein-above mentioned, for the purpose of undertaking to impeach the State’s witness Barbara simply because he testified he was unfamiliar with two of the books and that, as a chemist, he could not recognize the other book (The Botany and Chemistry of Hallucinogens) because the author was a member of a different profession. And the court was not in error in declining to admit the books in evidence. When Mr. Barbara testified on cross-examination with reference to the three scientific works as above indicated, defense counsel made no effort to impeach him by having him read or by reading to him from those treatises.

The rules with respect to the use and admission of books and scientific treatises is well settled in this State. In Byers v. Railroad, 94 Tenn. 345, 29 S.W. 128, our Supreme Court said in 1895:

. . When a witness is testifying as an expert, it is competent to test his knowledge and accuracy, upon cross-examination, by reading to him or having him read extracts from standard authorities upon the subject-matter involved, and then asking him whether he agreed or disagreed with the authorities, and comparing his opinion with those of the writer. Hess v. Lowery, 122 Ind. 225, 23 N.E. 156, 7 L.R.A. 90; Fisher v. Railroad Co., 89 Cal. 399, 26 P. 894; Railroad Co. v. Allison (Ga.), 12 S.E. 352; 48 A. & E. R. R. Cases 111; 1 Greenleaf on Evidence, Sec. 440, note (15th Ed.).
“See 1 Greenleaf on Evidence (15th Ed.), Sec. 440, note E, in which the following propositions are laid down, and cases cited in support: ‘The weight of current authority is decidedly against the admission of scientific books in evidence before a jury and allowing such books to be read from to contradict an expert generally. However, it is a proper method of cross-examination, in order to test the learning of a witness who testifies as an expert, to refer to books of approved authority upon the subject under investigation and question him in regard thereto. Scientific books may be used by the attorney in framing his questions for the witness. He may read the questions from such a book to the witness, either on direct or cross-examination. Tompkins v. West, 56 Conn. [478,] 485, 16 A. 237. And if an expert has quoted a book, it may be read to him to show that he has misquoted it. Underhill on Evidence, Sec. 189; Ripon v. Bittel, 30 Wis. 614.’ ” (Emphasis supplied)

In McCay v. Mitchell, 62 Tenn.App. 424, 444, 463 S.W.2d 710, 720, the Court said:

“It is established in Tennessee an expert witness may be cross-examined by the use of standard authorities on the subject. The Court in Sale v. Eichberg (1900) 105 Tenn. 333, 59 S.W. 1020, cited Byers v. Nashville, C. & St. L. Railroad Co., 94 Tenn. 345, 29 S.W. 128, which states: ‘When a witness is testifying as an expert, it is competent to test his knowledge and accuracy upon cross-examination by reading to him, or having him read, extracts from standard authorities upon the subject-matter involved, and then asking him whether he agreed or disagreed with the authorities, and comparing his opinion with those of the writer.’ ” (Emphasis supplied)

And the Court of Appeals of this State said in Standard Life Insurance Company v. Strong, 19 Tenn.App. 404, 424, 89 S.W.2d 367, 379:

“ ‘According to the clear weight of present authority, scientific books and treatises cannot be received as evidence of the matters or opinions which they contain.’ Jones on Evidence (2 Ed.), vol. 4, § 1741, p. 3189.”

Finally, contrary to the defendant’s additional insistence, for the same reasons the trial judge committed no error in declining the request to take judicial notice of United States Code § 209, which lists cannabis indica as one of many proscribed poisons. Obviously that federal statute could not impeach Mr. Barbara. See also: TCA § 24-610, with which the defendant did not comply.

Affirmed.

DWYER, J., concurs.

GALBREATH, J., dissents.

GALBREATH, Judge

(dissenting).

There can be little doubt that the defendant was under arrest and in custody of the F.B.I. when devastatingly damaging admissions were obtained from him and a search conducted of his apartment. As summarized in the majority opinion, Agent Phillips admits that the defendant while in his own apartment “asked the agents to step outside a few minutes.” The agent testified, incredibly, that he advised the defendant that they could not do so. In later testimony, Agent Phillips admits that the reason the defendant was not left alone as he requested was because they feared “he had something he wanted to dispose of and he just wanted us to step outside a minute or two for this to be accomplished.”

When the agents for the F.B.I. refused to permit the defendant his freedom to the privacy of his home, he was in every sense of the word “under arrest.” Under a somewhat similar factual situation in which a suspect was closely guarded and refused permission to leave the presence of federal officers during a search, it was logically concluded by the Court that such “restraint . and restriction of . liberty of movement constituted an arrest.” United States v. Hooper, D.C.Tenn., 320 F.Supp. 507. Our Supreme Court has long recognized this principle of law:

It is well settled by the law of arrest that it is not necessary to effect an arrest that there be a manual touching of the body or a formal declaration of arrest; it is sufficient if the person arrested understands that he is in the power of the one arresting and submits in consequence. 4 Am.Jur., § 2, pp. 5, 6; Robertson v. State, 184 Tenn. 277, 284, 198 S.W.2d 633. There are numerous cases holding that “requisite control may be assumed without force, or without any visible physical restraint.” 6 C.J.S., Arrest, § 1, p. 571. Murphy v. State, 194 Tenn. 698, 254 S.W.2d 979.

It is not surprising that the defendant was under close arrest and supervision by the F.B.I. agents. They had a lawful right, as well as a duty, to arrest him, having more than probable cause to believe he had committed the felony for which he now stands convicted. The only problem is that at that time and during the subsequent events when the agents asked the defendant to show them the drugs he produced at their direction, he had not been advised by them of his basic rights. After detailing the advice given the defendant, which did not include his right to have counsel appointed for him, Agent Phillips testified that no further advice was given up to and including the time the damaging admissions against interests were made.

It is quite clear, in spite of the F.B.I. agent’s assertion to the contrary, that the defendant, as a matter of fact, was in custody. Counsel for the State relied during the hearing to suppress on the agent’s assertion that no arrest had taken place to excuse the failure to adequately warn the defendant of his Miranda rights. Inasmuch as arrest had occurred, the failure to give the warnings was fatal error.

In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

Even had the warnings given the defendant at a time when the finger of accusation was unerringly pointed directly at him been full and complete, at the moment the defendant asked the F.B.I. agents to cease and desist in their subtle intimidation by leaving his home this request canceled all consent to further interrogation. For:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Miranda v. State of Arizona, supra.

In Martin v. State, 1 Tenn.Cr.App. 282, 440 S.W.2d 624 the arresting officer gave the same limited advice as did Agent Phillips in this case. In reversing a conviction obtained by the use of incriminating admissions made by the defendant, Judge W. Wayne Oliver recounted the circumstances and reached the proper conclusion of law in his opinion:

In the presence of the jury, the . officer testified:

“Q State to the Court and jury just what you told him.
A We advised him that he could remain silent, he didn’t have to make a statement. That any statement that he made could be used in a Court of law, we advised him that he could get an attorney, or talk to his attorney, or either get him an attorney.”
He then related to the jury the oral incriminating statement made by the defendant in which he related some of the inculpatory details of the fatal encounter.
Unquestionably, the trial judge committed prejudicial error in holding that the defendant was adequately advised of his constitutional rights by the arresting officer prior to interrogating him, and in admitting the defendant’s oral statements made to that officer during that in-custody interrogation. Martin v. State, supra.

Perhaps it is time to retreat from relatively recent defined principles heretofore considered binding on arresting officers and the courts of this State and Nation. But unless we are in a position to overrule the United States Supreme Court’s holding in the landmark case of Miranda v. State of Arizona, supra, and such opinions as Martin v. State, supra, applying these principles in Tennessee, this conviction cannot stand.

In the present status of the law, I am compelled to respectively dissent from the majority opinion.


source: Caselaw Access Project

author: WALKER, Presiding Judge.

license: Public Domain

text:
    Stephen GASKIN et al., Petitioners, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    June 25, 1975.
    Joel Kachinsky, Summertown, for petitioners.

      R. A. Ashley, Jr., Atty. Gen., William B. Hubbard, Asst. Atty. Gen., Nashville, Elmer Davies, Jr., Dist. Atty. Gen., Franklin, for respondent.
   OPINION

WALKER, Presiding Judge.

By their petition for postconvietion relief, the petitioners below, Stephen Gaskin, Brandon Lerda, Wilbur Jordan, and Dane Culbertson, challenge their convictions for manufacture of marijuana. After an evi-dentiary hearing, the trial judge filed his memorandum setting forth his findings of fact and conclusions of law. He found all of the grounds to be without merit and dismissed the petition. We agree and affirm the dismissal.

On direct appeal our Supreme Court affirmed the convictions in Gaskin v. State, Tenn., 490 S.W.2d 521, cert. denied 414 U.S. 886, 94 S.Ct. 221, 38 L.Ed.2d 133.

On their direct appeal and in this proceeding, the petitioners contend that the Tennessee Drug Control Act unconstitutionally interferes with the free exercise of religion guaranteed by the First Amendment to the United States Constitution. They say that the use of marijuana is a sacrament and a central part of their religion and the Drug Control Act violates due process of law; that the Act is legislation against a state of mind in which the State has no compelling interest; that it is not reasonably related to public health, safety and morals and violates equal protection of the law and that punishment under the Act is cruel and unusual.

The question of the constitutionality of the Act was decided on the direct appeal and these questions have been previously determined in Gaskin v. State, supra. The present allegations of unconstitutionality of the statute do not raise new grounds and have already been once litigated. They have been previously determined.

In this proceeding the petitioners now seek to attack the search and the seizure of the marijuana. This question was raised by their counsel at the trial but the record shows that the petitioners themselves determined not to appeal that issue but to confine the direct appeal to the constitutionality of the statute. The search and seizure question has been waived. TCA 40-3811-3812.

At the evidentiary hearing the trial judge limited the issues to the petitioners’ claims to: (1) violation of the equal protection clause of the 14th Amendment of the United States Constitution by selective prosecution of them; (2) the Drug Control Act violates the 14th Amendment by making manufacturing of marijuana a felony while possession is only a misdemeanor; (3) disparity in sentencing in the different circuits in the state violates the equal protection clause of the 14th Amendment and (4) pretrial publicity (filming by a television crew of the arrest) violated due process and denied them a fair trial.

The trial judge found that the mere fact that other people, who purportedly had an interest in the marijuana, were not prosecuted would not make these petitioners less guilty. He further held that it was proper for the legislature to make manufacture of marijuana a felony and mere possession a misdemeanor. He found no proof of any great disparity of punishment in the various circuits.

The petitioners offered testimony showing that television and radio people came when the police arrived and interviewed petitioner Gaskin. They say the television film prejudiced them and the radio people misrepresented their life style. For the state a TBI agent testified the newsmen evidently learned from police radio calls of the impending arrest and came to the scene. At the trial the petitioners did not want to challenge any jurors although their attorney challenged a number peremptorily.

The trial judge found that the evidence failed to show that the petitioners had not received a fair trial as a result of the alleged publicity; that there was no motion for a change of venue and that this is the first time this question was raised.

We have held the Drug Control Act of 1971 as it applies to marijuana in all respects constitutional. See Lee v. State, Tenn.Cr.App., 498 S.W.2d 909.

All assignments are found to be without merit and are overruled.

The judgment is affirmed.

MITCHELL and RUSSELL, JJ., concur.


author: ROBERTS, Judge.

text:
    Robert James MOORE, Appellant, v. The STATE of Texas, Appellee. Shirley PHILLIPS, Appellant, v. The STATE of Texas, Appellee. Cynthia STRINGFELLOW, Appellant, v. The STATE of Texas, Appellee. Robert C. THETFORD, Appellant, v. The STATE of Texas, Appellee. Larry Ray JONES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50191-50195.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Malcolm Dade, Melvyn Carson Bruder, Steven S. Condos, Dallas, for appellants.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Jerry Banks, Jay Ethington and Norman Kinne, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These appellants were convicted of conspiracy to exhibit obscene material in violation of Art. 527, Sec. 6, V.A.P.C. The record shows that the movie “Deep Throat” was exhibited at the Arcadia Theatre in Dallas on March 28, 29, 30, and 31,1973 and the trial for this offense commenced on August 6, 1973. A jury found appellants guilty and assessed each appellant the maximum punishment of five (5) years’ imprisonment and a $5,000 fine.

The evidence revealed that the subject movie was exhibited on the dates indicated above. Vice squad officers seized the movie on March 29, 30, and twice on March 31. Adversary hearings were held prior to each of the first three seizures for a preliminary determination of obscenity. A search warrant and an arrest warrant were issued prior to the fourth seizure.

The record showed that appellant Thet-ford was the owner of the Arcadia Theatre. Appellants Moore and Jones were managing the theatre on the dates in question. Appellants Phillips and Stringfellow sold tickets to the movie or managed the concession stand on the same dates.

Appellants’ first ground of error complains of the argument of the prosecutor at the guilt-innocence stage of the trial. Urging a finding that the movie “Deep Throat” was obscene, the prosecutor argued:

“And if that is not obscene, we might as well quit. We might as well quit prosecuting obscenity cases if this film here isn’t obscene, and concentrate on sex crimes and other matters that arise after people view things like that.” (Emphasis added)

The suggestion that sex crimes are caused by viewing the movie was objected to as being outside the record, but the objection was overruled.

In White v. State, 492 S.W.2d 488 (Tex.Cr.App.1973), the prosecutor’s argument “that sixty percent of the crime in Dallas County was attributable to narcotics” necessitated the reversal of a conviction for possession of heroin. This Court unanimously agreed that there was no causal connection in evidence between the possession of heroin and the commission of other crimes in Dallas County. Only slightly less egregious was the argument of another Dallas prosecutor in Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1975) that “[heroin] results in more crime in this community; that people do anything to get heroin .” Other arguments of causal connections between a defendant’s activities and their effects on others were condemned in Rodriquez v. State, 520 S.W.2d 778 (Tex.Cr.App.1975) and Thomas v. State, 527 S.W.2d 567 (Tex.Cr.App., delivered September 23, 1975).

The State does not really place much stock in its argument that the statement did not indicate a causal connection between dirty movies and sex crimes. Such is the only reasonable interpretation of the argument. Rather, the State strenuously urges that the argument was a reasonable deduction from the evidence. In support of this view, the State refers to the testimony of a defense expert witness, Dr. Green. It is urged that Dr. Green’s testimony that movies such as “Deep Throat” were not harmful or unhealthy for “average” people of “normal sexuality” implied that such movies caused un-average abnormal people to commit sex crimes. Such reasoning is tenuous at best, but the State did not offer evidence on this subject. The record reveals that Dr. Green was asked by defense counsel to give the results of numerous studies, by himself and others, of the effects of exposure to explicitly sexual material on sex offenders and normal control groups. The prosecutor’s objection that such testimony was immaterial and hearsay was sustained.

There was thus no evidence in the record of the relationship between exposure to sexual materials and the commission of sex crimes. The prosecutor’s assertion of a causal connection between the two was clearly improper jury argument. The prejudice to the appellants is apparent from the jury’s imposition of the maximum sentence for these offenses. In view of the charged atmosphere in which this trial took place, this Court cannot say that an error raising the spectre of sex crimes not in the record Was harmless.

The judgments are reversed and the causes remanded.

      . Repealed by Acts 1973, 63rd Legislature, chap. 399, Sec. 3(a), p. 991, effective January 1, 1974.


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

text:
    Danny Lee NICKLAS, Appellant, v. The STATE of Texas, Appellee.
    No. 49683.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Rehearing Denied Dec. 19, 1975.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., and John H. Hagler, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

The question presented by this appeal is one of first impression. May a trial judge revoke probation and then, after the appellate brief is filed in the trial court under Article 40.09, Sec. 9, Vernon’s Ann.C.C.P., grant a new trial and conduct a new revocation hearing on an amended motion to revoke probation filed one year after original hearing and the giving of notice of appeal and over six months after expiration of the probationary period or term?

The appellant entered a plea of guilty before the court to the possession of marihuana on June 3, 1971. His punishment was assessed at two (2) years, probated. One of the conditions of probation was that appellant “(a) Commit no offense against the laws of this or any other state or the United States.” (Emphasis Supplied)

It appears that on October 11, 1972, the probation officer filed a report of violation of a probationary condition and a capias was issued and appellant was arrested.

On December 8, 1972, the State filed a motion to revoke which alleged:

“Subject has been charged with drunk and disorderly aggravated. Subject plead guilty in Criminal District Court No. 5 on August 4, 1972, to a charge of assault With a prohibited weapon — Case No. C72-5399-IL. Received 70 days plus Court Costs.”

On the same date the motion was filed (December 8, 1972) a hearing was held on such motion, at the conclusion of which the court revoked probation, stating the appellant had violated the conditions of probation “as alleged and he was drunk and disorderly on the 10th day of October ..” The appellant was then sentenced. Notice of appeal was timely given on December 15, 1972.

On June 3, 1973, the original probationary period of two years expired.

On September 4, 1973, appellant filed his appellate brief in the trial court in accordance with Article 40.09, Sec. 9, Vernon’s Ann.C.C.P. In such brief appellant contended, among other things, the trial court abused its discretion in overruling the objection to the proceedings for lack of receipt of a copy of the motion to revoke before the hearing began, contending that the court’s tactics of threatening to postpone the hearing and put the appellant back in jail for a month or so eaused the appellant to instruct his counsel to withdraw all objections. Appellant also contended that the evidence was insufficient to support revocation on the grounds alleged, calling attention to the fact that if appellant was drunk on October 10, 1972, it was in his own home and did not reflect a violation of the law, and his guilty plea on the assault charge was coerced.

On December 18, 1973, the State filed its “First Amended Motion to Revoke Probation,” although the probation had already been revoked and the probationary period had expired and an appeal was under way. This motion alleged the commission of the offense of assault with a prohibited weapon upon one Jessie Cranford “on or about the 20th day of May, 1972,” and further alleged that it was the same offense alleged in the original motion to revoke on December 8, 1972. The record does not reflect that any capias or arrest warrant was ever issued as a result thereof.

On January 18, 1974, the court called a hearing on such motion. Appellant expressly objected to any proceedings since the motion was filed after revocation of probation and after the expiration of the probationary period. At the conclusion of colloquy at the bench, the court, on its own motion, granted a new trial and set a hearing on the amended motion for revocation.

On February 8, 1974, the court conducted a hearing on the amended motion to revoke, stating to appellant’s objection that a new trial had been granted, “the obvious reason being to cure any error that may have been in the first of the ease and that is what the Court did in this case.” At the conclusion of the hearing the court again revoked probation on the basis of the assault with a prohibited weapon and again sentenced the appellant. Notice of appeal was given. Findings of fact and conclusions of law were subsequently filed upon request.

While the trial judge undoubtedly retained jurisdiction over the case and had the right to grant a new trial under the provisions of Article 40.09, Vernon’s Ann.C. C.P., we cannot conclude that he had the authority to revoke probation based upon a revocation motion filed after the expiration of the probationary period.

In Ex parte Fernandez, 156 Tex.Cr.R. 246, 241 S.W.2d 155 (1951), the offense made the basis of the revocation occurred and the filing of the revocation motion and the issuance of the capias or warrant all took place after the expiration of the probationary period. The court set aside the conviction upon collateral attack, holding that the trial court was without authority to revoke probation under these circumstances.

The lack of authority of the trial court to revoke under these circumstances does not solely turn, however, upon the fact that the offense made the basis of the revocation occurred after expiration of the probationary period. The following cases involved situations where the alleged penal law violation occurred during the probationary period.

In Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973), we wrote:

“This Court has recently held that where the motion to revoke probation has been filed subsequent to the period of probation the Court does not have jurisdiction to entertain the motion and therefore probation may not then be revoked. Howard v. State, 495 S.W.2d 252 (Tex.Cr.App.1973) and see McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958). Since the trial court did not have jurisdiction to revoke the appellant’s probation on August 16, 1968, the sentence imposed was void and that conviction cannot be used for enhancement of punishment.”

In Pollard v. State, 172 Tex.Cr.R. 39, 353 S.W.2d 449 (1962), the revocation motion was filed prior to the expiration period but the revocation hearing was held subsequent thereto, but no capias or warrant was issued. There, the court held that the trial judge could not, after the term of probation had ended, enter a revocation order where the record was silent as to issuance of any capias or warrant for the arrest of the probationer or setting of a hearing before expiration. See also Lynch v. State, 502 S.W.2d 740 (Tex.Cr.App.1973), which cited Pollard with approval and reached the same result. It is clear then that even if the revocation motion is filed prior to the expiration of the probationary period, revocation cannot be ordered subsequently if a warrant or capias for the arrest of the probationer is not ordered prior to such expiration.

The above cases are to be distinguished from the Fennell line of cases. See Ex parte Fennell, 284 S.W.2d 727 (Tex.Cr.App.1955). In these cases the revocation motions were filed and the arrest warrants issued prior to expiration of the probationary periods although the revocation hearings were held subsequently but shortly after the arrest of the defendant. These revocations have been held proper under most circumstances. See, i. e., Ex parte Fennell, supra; Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3 (Tex.Cr.App.1958); Ortega v. State, 414 S.W.2d 465 (Tex.Cr.App.1967); Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969); Bobo v. State, 479 S.W.2d 947 (Tex.Cr.App.1972); Bryant v. State, 496 S.W.2d 565 (Tex.Cr.App.1973); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Strickland v. State, 523 S.W.2d 250 (Tex.Cr.App.1975). And this is particularly true where the court’s order of arrest is followed by a diligent effort to apprehend and to hear and determine the claimed violation. Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963).

In such cases, however, the right of the court to revoke is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period. McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958); Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969) (Concurring Opinion); Standley v. State, supra, footnote # 1.

In the instant case the State argues that the second motion was only an amendment of the original motion to revoke, citing Banks v. State, 491 S.W.2d 417 (Tex.Cr.App.1973). Banks does authorize “trial” amendments of a revocation motion, but the amended motion here was not a trial amendment filed during “trial” but was filed after revocation, sentence, notice of appeal, the filing of appellant’s brief, etc., and was used as the basis for granting a new trial and for a second hearing on revocation. A different rule is not called for as urged by the State because no new allegations were contained therein.

The State further, in justification of the trial court’s action, urges that the filing of the original motion and the issuance of the capias tolled the running of the probationary period. The cases cited do not support that proposition. The State’s argument, if carried to its logical conclusion, would mean that in every revocation of probation case reversed by this court long after the expiration of the probationary period an amended motion could then be filed on the claim that the filing of the original motion of revocation and the issuance of the warrant tolled the running of the probationary period. The law has never permitted this type of action after the expiration of the probationary period.

For the reasons stated, the judgment is reversed and the prosecution is ordered dismissed.

DOUGLAS, Judge

(concurring).

I concur in the result reached under the circumstances of this case solely because the motion to revoke relied upon was filed after the term of probation had expired.

ODOM, J., joins in this concurrence.

ROBERTS, Judge

(concurring).

Although I agree substantially with the opinion of my brother Onion, I feel it necessary to add several words about the problem mentioned in footnote 2 of that opinion.

The record clearly reflects that the amended motion to revoke was filed after the filing of appellant’s brief but before a new trial was granted by the trial court. As noted by Presiding Judge Onion, the amended motion to revoke was never refiled, yet the trial court proceeded to revoke the appellant’s probation based on the amended motion.

Due process requirements apply to probation revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Campbell v. State, 456 S.W.2d 918, 921 (Tex.Cr.App.1970). And while the rules applicable to indictments and the degree of particularity required do not fully apply to motions to revoke probation, the fundamental standards of due process regarding fair notice must be satisfied. Graham v. State, 502 S.W.2d 809, 811 (Tex.Cr.App.1973).

I would hold that the original revocation motion was inadequate to give the appellant fair notice. Graham v. State, supra. I would also hold that any revocation based on the amended motion was void — not only because it was filed after the conclusion of the probationary term, but also because it was of no legal effect after the granting of a new trial. The amended motion could not be deemed to have been “automatically” re-filed by the court’s granting appellant a new trial.

I would reverse the judgment and order that the prosecution be dismissed.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

In the original opinion the Court wrote that the question presented by this appeal is whether “. . .a trial judge [may] revoke probation and then, after the appellate brief is filed in the trial court under Article 40.09, Section 9, V.A.C.C.P., grant a new trial and conduct a new revocation hearing on an amended motion to revoke probation filed one year after original hearing and the giving of notice of appeal and over six months after expiration of the probationary period or term?” This Court answered that he could not.

Does probation continue while a revocation hearing is on appeal? If probationer does not have to live up to the conditions of probation while the revocation hearing is on appeal, then this Court should hold that the period of probation is abated or suspended. With the period of probation suspended, the term of probation would not run. Therefore, after notice of appeal had been given, the running of the probation period would be tolled. It would follow that the two year term of probation had not expired and the trial court had jurisdiction to enter its order of revocation on the amended or new motion.

The State’s motion for rehearing should be granted.

      . The form of the motion leaves much to be desired. The allegations of a revocation motion need not be as precise as those of an indictment, Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970), but must give fair notice and should allege a violation of the law where that is the probationary condition violated. Jansson v. State, 473 S.W.2d 40, 42 (Tex.Cr.App.1971). See also Graham v. State, 502 S.W.2d 809 (Tex.Cr.App.1973). It should be borne in mind that the fact of arrest, standing alone, or the mere fact that a formal complaint has been filed is not sufficient to show a penal offense has been committed. Vance v. State, 485 S.W.2d 580 (Tex.Cr.App.1972); Rutledge v. State, 468 S.W.2d 802 (Tex.Cr.App.1971), and cases there cited. The allegation that appellant was charged with an offense was not a sufficient allegation. Further, as to the allegation as to a conviction to show the commission of a penal offense during probationary period, this court has repeatedly noted the difficulties inherent therein. See, i. e., Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974); Cannon v. State, 479 S.W.2d 317 (Tex.Cr.App.1972); Mason v. State, 438 S.W.2d 556 (Tex.Cr.App.1969); Scott v. State, 516 S.W.2d 196 (Tex.Cr.App.1974).

      . It does not appear at any time that the amended motion to revoke probation was ever re-filed after the granting of the new trial. It retains only one file mark.

      . It is to be observed that Article 42.12, Sec. 8, Vernon’s Ann.C.C.P., provides in part that “At any time during the period of probation the court may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. . . .” (Emphasis Supplied)

      . For authority supporting “trial” amendments of a revocation motion see also Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974); Cabrera v. State, 494 S.W.2d 177 (Tex.Cr.App.1973); Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971); Tate v. State, 365 S.W.2d 789 (Tex.Cr.App.1963).

      .The amended revocation motion deleted any reference to the “drunk” charge, and alleged the commission of the assault charge rather than alleging the conviction for the assault as a means of showing the commission of the offense. See and compare footnote # 1, id.

      . In the opinion of the writer it would be better for this Court to hold that probation is in effect with all of its conditions from the time it is originally granted. A probationer should not be able to suspend probation by the mere giving notice of appeal. He is, in effect, by his own wrongdoing and appeal setting the probation aside. Probation should be construed to be a status. After a revocation hearing the original probation is not appealed, generally only its revocation is appealed. See Gossett v. State, 162 Tex. Cr.R. 52, 282 S.W.2d 59 (1955). If probation is permitted to run as it should after notice of appeal has been given, then several motions to revoke might be filed on the probationer before the term of probation has expired.
      A defendant should not be given credit on the probation time, and then after an appeal and a possible reversal be free even though he may have violated the terms of probation several times during the appeal.
      Holding that probation is still in effect would be analogous to the holdings under the former driving while intoxicated statute, Article 802b, V.A.P.C. Once a defendant had been convicted of the misdemeanor offense of driving a motor vehicle on a public road while intoxicated, his status was established. Anytime he was charged with driving a motor vehicle upon a public road thereafter, he could be charged as a felon under the subsequent offender statute, Article 802b, supra. Several cases using the prior misdemeanor could be pending at the same time.
      This Court should hold that the probationer is subject to the conditions of probation while the revocation proceedings are on appeal. Not doing this, the Court should hold that the period of probation is tolled during appeal, and a probationer must live up to the terms of probation as ordered by the trial judge.
      An amendment to the statutes is needed to allow probation to run or to abate probation while the revocation proceedings are on appeal.


author: BROWN, Commissioner. ROBERTS, Judge. DOUGLAS, Judge

text:
    Ex parte Miguel Ortega DAVILA.
    No. 50334.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    On Rehearing Dec. 17, 1975.

      Ray J. McQuary, Rosharon, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is a post conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P.

Petitioner contends that he is illegally confined on a void sentence. He was indicted on February 27, 1974, for the offense of statutory rape under Article 1183 of the old penal code. The indictment alleged that the offense was committed on December 8, 1973 and that he unlawfully had carnal knowledge of C-G_, who was then and there under the age of eighteen years, not the wife of petitioner. On the advice of his retained counsel, petitioner pled guilty on April 21,1974, and was sentenced to five (5) years’ confinement. No appeal was taken.

On March 18, 1975, the court which heard the plea of guilty denied petitioner’s application without a hearing. He did, however, file and forward to this Court his findings of fact and conclusions of law. He found as a fact that the complainant in the rape case was born on August 20, 1956, and at the time of the offense “was seventeen (17) years, three (3) months and nineteen (19) days old.” The record of the trial is not before us. Admittedly, this Court is not bound by the findings of the trial court in a habeas corpus proceeding and may make contrary findings when the record will not support the trial court’s findings. Ex Parte Young, Tex.Cr.App., 479 S.W.2d 45, and cases cited therein. Nevertheless, the finding of the exact date of birth and the exact age of the victim by the court which tried the case lends sufficient verity to these findings to enable us to accept them as fact.

Section 21.09(a) of the new penal code which was in effect at the time the indictment was returned and at the time of trial lowers the age of consent from 18 years to 17 years. Accordingly, after January 1, 1974, consensual intercourse with a female who has attained the age of 17 years is not conduct which is proscribed by the new penal laws of this State.

Texas Penal Code, Sec. 6, Savings Provisions, Acts 1973, 63rd Leg., p. 883, Ch. 399 provides:

“(b) . . . . If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act.”

Accordingly, no prosecution for statutory rape of a female 17 years of age or older may now be maintained.

The conviction is set aside, the prosecution ordered dismissed and petitioner is ordered released from custody.

Opinion approved by the Court.

OPINION

ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

In its motion for rehearing the State presents three contentions: that the trial court’s fact-finding as to the complainant’s age is unsupported by the record; that there is insufficient evidence in this record to determine whether the petitioner was entitled to relief; and that by granting relief this Court has, for the first time, allowed a successful collateral attack upon the sufficiency of the evidence. We reject all of these contentions.

Concerning the first two contentions, the State argues that since there was no hearing on this petition, and since no evidence was “presented” to the trial court, we cannot grant habeas corpus relief. The State contends very simply that findings of fact must be supported by reviewable evidence in the record so that this Court may determine if the record developed supports the trial court’s findings.

We first observe that this Court is given broad power “upon affidavit or otherwise to ascertain . . . matters of fact” in habeas corpus cases. Art. V, Sec. 5, Vernon’s Ann.Tex.Const. (Emphasis added). And Article 11.07 of our Code of Criminal Procedure provides that the trial court may hold a hearing on a habeas corpus petition before entering his findings of fact and conclusions of law; thus, such a hearing is not required.

Construing these constitutional and statutory provisions together, we conclude that the proper standard in such cases as the one before us is whether “the fact-finding procedure there employed was . adequate for reaching reasonably correct results.” Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963).

Applying this necessarily flexible standard to this case, we think that several factors justify our conclusion that the procedure was adequate in this case.

First, and most important, the trial judge recited that his findings were based on “the files and records in this case and upon the pleadings.” Next, the court found that the complainant was over seventeen years of age at the time of the offense, a fact which was never disputed by the State, though it had ample time to do so. Finally, the trial court concluded that petitioner should be denied relief even though the court entered detailed fact-findings which seemed to warrant relief. We think that this combination of factors lent sufficient credence to the trial court’s findings of fact, especially in light of the well-established rule that “we must indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.” McCloud v. State, 527 S.W.2d 885, 887 (Tex.Cr.App.1975).

Nor do we agree with the State’s contention that we are creating a rule which always favors petitioners over the State. This Court frequently denies habeas corpus applications solely upon the findings and conclusions of the trial court, without evi-dentiary support. Moreover, we can easily conceive of situations where relief would be denied on the basis of the findings of fact even though the trial judge recommended granting the relief.

In its final contention the State argues that we are allowing a collateral attack upon the sufficiency of the evidence. This allegation misconstrues the nature of the relief sought.

The petitioner in this case is not challenging the sufficiency of the evidence to support his conviction; instead, he asserts that the trial court did not have jurisdiction to try him.

As we held in our original opinion, this case is controlled by subsection 6(b) of the Savings Provision of our new Penal Code. Under that provision, the trial court was required to dismiss the indictment as soon as it became evident that the conduct alleged was no longer an offense. Once this lack of jurisdiction manifested itself, the sufficiency of the evidence ceased to be relevant, since the indictment should have been dismissed when the evidence was presented showing the complainant to have been over seventeen years of age. Acts 1973, 63rd Leg., Ch. 399, pp. 883, 996, Sec. 6(b). See Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Compare Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975) and Ex Parte Bozeman, 166 Tex.Cr.R. 270, 313 S.W.2d 300 (1958). Contrast Wright v. State, 527 S.W.2d 859 (Tex.Cr.App.1975) and Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975). The motion for rehearing is overruled.

DOUGLAS, Judge

(dissenting).

The majority overrules the State’s motion for rehearing. I dissent. The majority is holding that the trial court’s finding of fact that the prosecutrix was seventeen years of age at the time of the offense without the facts being before us is not subject to review by this Court. The trial court concluded that the relief sought should be denied.

This Court has repeatedly held that a trial court’s findings of facts and conclusions of law in habeas corpus proceedings are not binding on this Court:

“Initially, it should be noted that this court is not bound by the findings of the trial court in a habeas corpus proceeding. . Therefore, this court is required to determine if the record developed supports the trial judge’s recommendation.” Ex parte Young, 479 S.W.2d 45 (Tex.Cr.App.1972).

See also Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974); McCuin v. State, 504 S.W.2d 512 (Tex.Cr.App.1974); Ex parte Greer, 505 S.W.2d 295 (Tex.Cr.App.1974); Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972); Ex parte Slaton, 484 S.W.2d 102 (Tex.Cr.App.1972); Ex parte Marez, 464 S.W.2d 866 (Tex.Cr.App.1971); Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967); Ex parte Johnson, 153 Tex.Cr.R. 619, 224 S.W.2d 240 (1949); Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968).

Before the original opinion, the holdings were that this Court reviewed findings of fact by examining “evidence” presented at an evidentiary hearing in support of petitioner’s application for habeas corpus. The majority now concludes that the findings of fact need not be supported by evidence if the “fact-finding procedure . . . was adequate . . . for reaching reasonably correct results.”

The majority is apparently holding that “adequate fact-finding procedures” always result in correct findings of fact. Therefore, this Court need not review evidence supporting findings of fact. The error is obvious. Without the facts, we cannot determine if there was an “adequate fact-finding procedure” in the instant case. The majority concludes that the procedure was adequate because (1) the trial judge stated that his findings were based upon “the files and records of this case and upon the pleadings; (2) the State’s failure to dispute the prosecutrix’s age; and (3) the detailed nature of the trial court’s findings of fact.

This Court should review such files and records. Until this decision, allegations in pleadings had no probative value. Evidence had to be introduced to prove the factual allegations in motions for new trial, motions for continuances, motions to suppress, motions to quash and other pleadings. See Garza v. State, 502 S.W.2d 155 (Tex.Cr. App.1973); Turner v. State, 486 S.W.2d 797 (Tex.Cr.App.1972); Tsamouris v. State, 472 S.W.2d 141 (Tex.Cr.App.1971); Webb v. State, 460 S.W.2d 903 (Tex.Cr.App.1970) and Vaughn v. State, 456 S.W.2d 141 (Tex.Cr.App.1970). The factual allegations in an application for habeas corpus should be afforded no greater probative value than the factual allegations contained in other pleadings.

The fact that the State has not disputed the age of the prosecutrix is not controlling. The State is not required to contest a petitioner’s application for habeas corpus. Nor is the age of the prosecutrix exclusively within the knowledge and control of the State.

Finally, the majority concludes that the fact-finding procedure was adequate because the trial court entered “detailed” findings of fact. The detailed findings of fact may suggest that evidence was presented to the trial court on the prosecu-trix’s age, possibly at some unrecorded, extrajudicial proceeding. Such evidence should be subject to review by this Court.

The majority’s holding will encourage trial courts to dispense with evidentiary hearings in habeas corpus proceedings. A trial court may now refuse a request for an evidentiary hearing and enter findings of fact. The evidence supporting such findings is not subject to review by this Court if “the fact-finding procedure was adequate.” Yet, if the trial court conducts an evidentia-ry hearing, his findings of fact will be tested against the record.

The majority’s holding also appears to be in conflict with Parris v. State, 453 S.W.2d 505 (Tex.Cr.App.1970); Morrow v. State, 481 S.W.2d 144 (Tex.Cr.App.1972) and Reed v. State, 481 S.W.2d 814 (Tex.Cr.App.1972). In each of these cases there was no notice of appeal. The appellants did file applications for writ of habeas corpus alleging various errors in their trials and a denial of their right of appeal. The trial courts granted each appellant an out-of-time appeal without an evidentiary hearing. This Court dismissed the out-of-time appeals in each case because the trial court failed to conduct an evidentiary hearing. In Morrow, this Court wrote:

“The record reflects that an evidentia-ry hearing was never held on appellant’s application for writ of habeas corpus.
“Article 11.07, Vernon’s Ann.C.C.P., which governs the procedure to be taken in post conviction writs, was construed by this Court in Ex parte Young, Tex.Cr.App., 418 S.W.2d 824, where it was said:
“ ‘If the undisputed facts or the facts resolved by him after hearing warrant such proceedings, the judge of the convicting court may be in position to afford the applicant rights which have been denied him, such as counsel on appeal; record on appeal; effective aid of counsel on appeal; determination of voluntariness of confession; and nunc pro tunc proceedings to supply or correct the record. See Ex parte Brown, Tex.Cr.App. [152 Tex.Cr.R. 3], 210 S.W.2d 597; Ex parte Church, 163 Tex.Cr.R. 357, 292 S.W.2d 120; Ex parte Hannen, 155 Tex. Cr.R. 10 [228 S.W.2d 864], 230 S.W.2d 236; Ex parte Brian, Tex.Cr.App., 389 S.W.2d 467; Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417.’
“In Parris v. State, 453 S.W.2d 505, this Court said:
“ ‘The procedure discussed in Ex parte Young, supra, was not designed to authorize a trial judge without a hearing to utilize the office of an out of time appeal to resolve disputed fact issues presented to him by an application for post conviction habeas corpus relief.’
“In the instant case, an evidentiary hearing was not had upon appellant’s application for writ of habeas corpus. No hearing was had upon the question of appellant’s right to an out of time appeal.
“The determination by the trial court that appellant was entitled to an out of time appeal is reviewable by this Court. In the instant case we are unable to review the trial court’s action in granting an out of time appeal, since the basis for the court’s determination is not before us. See Reed v. State, Tex.Cr.App., 481 S.W.2d 814.”

See also McCuin v. State, 504 S.W.2d 512 (Tex.Cr.App.1974).

This cause should be remanded for an evidentiary hearing to determine the evidence offered during the trial. There may be facts to show that forcible rape was committed. If so this would amount to conduct punishable under the present penal code. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975), and Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975).

Since the application for habeas corpus does not contain enough facts at the trial, this Court does not have the basis to hold that the allegations if taken as true would entitle him to the relief sought.

If enough of the record to determine that the relief should be granted is not required, then a district judge could bypass Article 11.07, V.A.C.C.P., and could be the final authority to release convicted felons even after an affirmance of a conviction by this Court. Article 11.07 and its predecessor were enacted to prevent district judges from releasing convicted felons from the penitentiary without review by the Court of Criminal Appeals.

The motion for rehearing should be granted and an evidentiary hearing granted to develop the facts before finally passing upon this cause.

MORRISON, J., joins in this dissent.

      . Our holding in this case does not reach the issue of whether the petitioner may be rein-dieted under a different pleading. See Art. 12.05, Vernon’s Ann.C.C.P., as amended.

      . Article 11.07, Section 2(b), V.A.C.C.P., provides:
      “When a petition for writ of habeas corpus presented to the judge of the convicting court contains sworn allegations of fact, which, if true, would render petitioner’s confinement under the felony conviction illegal, the attorney representing the state in said court and the Attorney General of Texas shall be afforded an opportunity to answer such allegations, and if it appears that there are issues of fact which are material on the question of whether the petitioner is illegally restrained which have not been resolved, the petitioner may be granted a hearing on such issues of fact and the judge conducting such hearing shall make and file his findings of fact and conclusions of law.” (Emphasis supplied)


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

text:
    Daniel Dane SHIFLETT, Appellant, v. The STATE of Texas, Appellee.
    No. 49998.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Rehearing Denied Jan. 7, 1976.

      Joel W. Cantrick, Court-appointed on appeal, Tyler, for appellant.
    Curtis Owen, Dist. Atty., and Howard W. Britain, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was tried before the court on a plea of guilty to the offense of breaking and entering a vehicle. He was found guilty and assessed a punishment of three years’ confinement by the court.

The record shows that the prosecuting attorney recommended a sentence of two years after appellant’s trial before the court on June 17, 1974. The court assessed punishment at two years but, after defense counsel requested that an updated pre-sen-tencing report be compiled for the judge’s consideration, the court instructed the reporter to expunge the reference to two years’ imprisonment from the record. A punishment hearing was held on July 8, 1974 and the court considered an updated pre-sentencing report and heard evidence on the issue of punishment. At the conclusion of the hearing, the prosecutor recommended and the judge assessed a punishment of three years.

Appellant’s sole ground of error asserts that the longer sentence assessed by the court was in violation of the restraints imposed by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Pearce held that due process of law dictated that vindictiveness could not play a part in the court’s sentencing of a defendant who had successfully availed himself of his statutory rights in obtaining a new trial. Therefore, any decision of the trial court to assess a greater sentence than that imposed in the earlier sentencing proceeding had to be accompanied by an affirmative showing in the record of objective conduct on the part of the defendant occurring after the time of the original sentencing proceeding and justifying a harsher sentence.

This salutary constitutional principle was followed in Texas in the case of Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). It has been extended to constrain the trial court’s imposition of sentence in a trial following the granting of a motion for new trial. Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App., delivered June 4, 1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974). The Pearce principle has even been applied to a vindictive reimposition of sentence following the giving of defendant’s notice of appeal. Colburn v. State, 501 S.W.2d 680 (Tex.Cr.App.1973). However, we decline to extend Pearce to the instant case. Sentences following requests for updated pre-sentencing reports are far removed from the situations originally contemplated by Pearce and its progeny. Consideration of pre-sentence reports is disere-tionary with the trial judge. Art. 42.12, Sec. 4, V.A.C.C.P. A practice on the part of a trial judge in considering such reports does not elevate them to the status of a statutory right protected from infringement by North Carolina v. Pearce. Nor does vindictiveness appear here where the court merely followed the prosecutor’s recommendation for a higher sentence. A prosecutorial request for an enhanced sentence following the grant of a new trial was held not to invoke the Pearce rule in Arechiga v. State, 469 F.2d 646 (5th Cir. 1972).

The Pearce rationale obviously does not apply to resentencing by a jury ignorant of a defendant’s earlier trial. Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970). In fact, the case of Ex parte Mullins, 505 S.W.2d 575 (Tex.Cr.App.1974) would appear to be dispositive of the case at bar. In Mullins, the petitioner claimed that the judge cumulated his sentences rather than running them concurrently, in violation of North Carolina v. Pearce. This Court noted that the original order for concurrent sentences had never been assessed at a formal sentencing proceeding, thus there could be no vindictive resentencing. The judge’s initial assessment of two years in the instant case came immediately after appellant’s trial, before his motion for new trial or waiver of the ten days therefor. There was thus no formal imposition of the two year sentence and the Pearce reasoning did not attach.

Appellant’s ground of error is overruled and the judgment is affirmed.

ODOM, Judge

(concurring).

I concur in the conclusion of the majority that no violation of the requirements of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), has been shown, but I base that conclusion upon different reasoning.

The majority observe that no formal imposition of sentence had occurred between the assessment of two years and the assessment of three years, and from that fact conclude that Pearce does not apply. Apparently this is based upon the language in Pearce stating its scope of application as “whenever a judge imposes a more severe sentence upon a defendant after a new trial.” (Emphasis added.) The imposition of sentence spoken of in Pearce, however, should not be taken to mean the formal imposition of sentence of Texas procedure. At least two unreasonable results would flow from such a rigid identification. First, the recognized and well-founded distinction of eases where punishment is assessed by a jury from cases where it is assessed by the court, referred to by the majority, would have to be abolished because, regardless of who assesses punishment, formal imposition of sentence is always by the court, never by a jury. The second unreasonable result of holding Pearce inapplicable whenever the first punishment has not been formally imposed is that the granting of a motion for new trial, which occurs between judgment and sentence, would never invoke Pearce. Nor would Pearce apply to retrial after withdrawal of a guilty plea permitted prior to formal sentencing. Yet such were apparently the facts in Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975) in which this Court unanimously held Pearce applicable and remanded the case for proper assessment of punishment. If the rationale of the majority is sound, Moore apparently was decided wrongly.

I submit that both Moore and the instant case are properly decided upon the following rationale. North Carolina v. Pearce, supra, by its own language applies “whenever a judge imposes a more severe sentence upon a defendant after a new trial.” (Emphasis added.) In Moore v. State, supra, the defendant was permitted to withdraw his plea of guilty and given a new trial. In the instant case appellant was not given a new trial, not even upon the issue of punishment alone. From the record it appears that after the initial assessment of punishment appellant requested that the court withdraw his assessment and recess the cause until a later date in order that more evidence might be presented before final assessment of punishment. The court granted appellant’s request and ordered the first assessment of punishment expunged. No judgment had been entered upon the first assessment of punishment. Had judgment been previously entered, the action of the trial court would have been tantamount to vacating the punishment portion of the judgment, which would have constituted the granting of a new trial on the issue of punishment, invoking Pearce. However, from the facts of this case it is clear that the request and the action of the trial court, as expressed in the record and coming at the stage of the proceedings at which they did, constituted nothing more than a recess in the cause followed by a continuation of the original trial of the cause on the issue of punishment. No new trial was had on the issue of punishment. Accordingly, North Carolina v. Pearce, supra, was not violated.

I therefore concur in the affirmance of this case.

ONION, Presiding Judge

(concurring in part and dissenting in part).

I agree with the disposition of appellant’s sole ground of error, but feel compelled to comment upon the bifurcated trial proceedings used and the use of pre-sentence reports where probation is not an issue. Further, I would consider as unassigned error under Article 40.09, Section 13, Vernon’s Ann.C.C.P., the Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), question reflected by this record and abate for an evidentiary hearing by the trial court.

First, I agree that assessment of the higher punishment at a so-called hearing on punishment was not in violation of North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969), which stated in part:

“. . . whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (Emphasis Supplied)

In the instant case there was only one trial — a plea of guilty before the court. No new trial was granted. The withdrawal of the assessment of the two (2) years’ punishment upon the request of appellant’s counsel for an updated pre-sentence report and the subsequent assessment of three (3) years at the so-called punishment hearing did not constitute a new trial.

It is observed that the bifurcated trial proceedings utilized here are not required where the plea of guilty is before the court after waiver of trial by jury. Article 37.07, Vernon’s Ann.C.C.P., is not applicable to such proceedings. Morales v. State, 416 S.W.2d 403 (Tex.Cr.App.1967). Here, however, there was no objection to the bifurcated proceedings. Further, after the request for an updated pre-sentence report the court explained to the appellant that there would be a delay and no prompt assessment of punishment, and the appellant waived any right to prompt assessment of punishment.

As to pre-sentence reports, it is observed that the only statutory authority for pre-sentence reports is found in the felony adult probation statute. Article 42.12, Section 4, Vernon’s Ann.C.C.P. This statute is generally utilized by courts in passing upon the issue of probation. Rodriguez v. State, 502 S.W.2d 13 (Tex.Cr.App.1973); McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App.1971). In the instant case the court referred to a pre-sentence report having been made some nine or ten months earlier when the appellant was acquitted of another offense. The court ordered an updated pre-sentence report although the issue of probation was not in issue. It appears that this was the practice of the trial court in all cases. It is observed though that no further mention is made of an updated pre-sentence report in the record at the hearing on punishment or otherwise. Whether one was prepared or not does not appear from this record.

With these observations, I agree that appellant’s ground of error has been properly disposed of.

Another matter concerns me. This record shows that the trial court carefully admonished the appellant. At one point, he inquired if the appellant expected the State to make a recommendation as to punishment. The appellant replied in the affirmative, and stated he thought the State would recommend two (2) years. The court warned the appellant he was not bound by any recommendation. At the conclusion of the first hearing, the State did recommend two (2) years, and the court assessed a penalty of two (2) years. After the request for an updated pre-sentence report was made, the assessment of punishment was set side. At the subsequent so-called hearing on punishment, the State recommended three (3) years, the maximum penalty for breaking and entering a motor vehicle. The court assessed punishment at three (3) years.

In Santobello v. New York, supra, the United States Supreme Court vacated the judgment and remanded the case for reconsideration in light of the opinion in a situation where the State did not live up to its plea bargaining agreement that it would make no recommendation to the court as to punishment following a guilty plea. There, the court wrote:

“This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by the safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

In light of the record before us, I would abate the appeal and order the trial court to conduct a hearing to determine if the appellant bargained and negotiated his guilty plea on the condition that the State would recommend a punishment of two (2) years and would further instruct the court to make findings of fact and conclusions of law and return the same to this court together with a record of the hearing. See Kincaid v. State, 500 S.W.2d 487 (Tex.Cr.App.1973); Hullum v. State, 415 S.W.2d 192, 197 (Tex.Cr.App.1967).

It should be kept in mind that a prosecutor’s promise may deprive a guilty plea of the “character of a voluntary act.” Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

To the extent that the majority does not agree to abate the appeal for the reasons above stated, I dissent.