author: REYNOLDS, Commissioner.

text:
    Jose Gutierrez RODRIQUEZ and Luis Mani, Appellants, v. The STATE of Texas, Appellee.
    No. 52322.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Rehearing Denied March 30, 1977.

      Oscar J. Pena, Laredo, for Rodriquez.
    Ruben Garcia, Laredo, for Mani.
    Charles R. Borchers, Dist. Atty., Donato D. Ramos, Stephen A. Whitworth and Sharon S. Trigo, Asst. Dist. Attys., Laredo, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

REYNOLDS, Commissioner.

Indicted and prosecuted for murder, appellants were convicted of the offense of voluntary manslaughter. The punishment of each was fixed by the jury at confinement for twelve years.

The prosecution was under Y.T.C.A., Penal Code § 19.02(a)(3), which reads:

“§ 19.02. Murder
“(a) A person commits an offense if he:
* * * * * *
“(3) commits or attempts to commit a felony other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”
* * * # * *

Omitting its formal parts, the indictment charges that appellants

“. . . did, then and there commit a felony, to-wit: did then and there intentionally and knowingly carry on and about their persons a handgun while on certain premises licensed and issued a permit by the State of Texas for the sale and service of alcoholic beverages, to-wit: El Dandy Club Bar, 2619 Guatemozin, situated in Laredo, Webb County, Texas, and while in immediate flight from the commission of said offense the said JOSE GUTIERREZ RODRIGUEZ and LUIS MANI, then and there acting together, did commit an act clearly dangerous to human life, to-wit: did then and there discharge a handgun into the said El Dandy Club Bar, a business establishment at the time of the shooting, and did thereby cause the death of Jose T. Ramos by shooting him with the said handgun,

An evidential summary is that appellants entered the El Dandy Club Bar owned by Jose Trinidad Ramos, the deceased, and ordered beer. Sixteen or seventeen persons, including Ramos, were present. Appellant Rodriquez displayed a pistol, pointing it out the door and clicking it. Appellants were told to leave. They left and, once outside, called for Ramos to come out and talk with them. When Ramos started toward the door, the barmaid and a customer caused him to remain inside. Sounds of shots were heard. A bullet penetrated the bar building, striking Ramos in the head and killing him instantly. The pistol from which the fatal shot was fired was found under the front seat of a pickup truck appellant Rodriquez drove to a nearby bar owned by Mani. In a statement given by appellant Rodriquez after his arrest and introduced by him in evidence, he reported that the shot was fired by appellant Mani. Neither appellant testified during the guilt-innocence stage of the trial.

Initial attention is given to the fourth ground of error claiming that § 19.-02(a)(3) is unconstitutional for vagueness and indefiniteness. The infirmity is contended for on the theory that the section fails to show what culpable state of mind is required in the commission of the “act clearly dangerous to human life that causes the death of an individual.” The novel contention has not heretofore been decided and, to resolve it, the enactment must be considered with other sections of the Penal Code, to which the rule of strict construction does not apply. § 1.05.

Section 6.02 of the Penal Code provides, in part, that

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.”

From a consideration of these sections together, it logically follows that because § 19.02(a)(3) is silent as to, and does not plainly dispense with, the culpable mental state required for the underlying felony committed or attempted, § 6.02(b) mandates that the culpable mental state shall, as specified in § 6.02(c), be one of intent, knowledge or recklessness. Uppn the establishment of the underlying committed or attempted felony embracing the requisite mental element, § 19.02(a)(3) then declares that an act which is committed in the course and furtherance of, or in immediate flight from, the underlying committed or attempted felony and which is clearly dangerous to human life and causes death shall constitute murder. Thus, the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying committed or attempted felony giving rise to the act. The transference of the mental element establishing criminal responsibility for the original act to the resulting act conforms to and preserves the traditional mens rea requirement of the criminal law. See, e. g., Hilliard v. State, 513 S.W.2d 28 (Tex.Cr.App.1974).

Consequently, § 19.02(a)(8) is not unconstitutional for its failure to specify the culpable mental state required for the act of murder. The fourth ground is overruled.

Consistent with this rationale, appellants’ third ground, by which they say that the indictment was fatally defective because it failed to inform them of the culpable mental state with which they were charged in committing the act resulting in death to Ramos, is overruled. In view of what we have written, it is sufficient if the indictment alleges the culpable mental state attending the underlying felony committed or attempted. Here, the indictment alleged that appellants “intentionally and knowingly” committed the underlying felony.

For the same reasons, appellants’ attack on the court's charge for its failure to charge on the culpable state of mind necessary for the alleged act of murder is not valid. To this extent, the fifth ground of error is overruled.

Appellants’ first ground is that the possession of a weapon on premises licensed for the sale of alcoholic beverages is not the type of felony that will support an act of murder because it does not involve intentional violence. Suffice it to state, without an academic discussion of the views of courts of other states as presented in the briefs, that the legislature has seen fit to exempt only the felonies of voluntary and involuntary manslaughter, and we will not add to the statutory exemption. The first ground is overruled.

We now arrive at appellants’ second ground which challenges, for three reasons, the sufficiency of the evidence to support the convictions. The first of these is that there is insufficient evidence to show flight.

To establish the offense charged, it was necessary for the State to prove its essential allegation that the killing occurred “while (appellants were) in immediate flight from the commission of” the felony offense alleged. The court charged the jury that

“ ‘Flight’ is the evading of the course of justice by voluntarily withdrawing one’s self in order to avoid arrest or detention—the act of fleeing or escaping from danger.”

The definition is substantially the one appearing in Black’s Law Dictionary, Revised Fourth Edition.

Tested by the definition, the evidence is insufficient to prove an immediate flight from the commission of the underlying felony. The barmaid denied that she told appellants to leave and she did not notice that Ramos did. She said there was no kind of disagreement between Ramos and either one, or both, of the appellants. A customer testified that the barmaid did tell appellants to leave because they could not carry a gun there, and that Ramos told appellants it was his place of business and for them to move out. He said the appellants left immediately; they were not running and were not chased by anybody. When they were outside, appellants called for Ramos to come outside to talk with them, but, according to the barmaid, she stood in the door to stop Ramos from going out and, as the customer testified, another customer got hold of Ramos “so everything was all right.” The shooting then occurred.

It is obvious that neither an arrest nor a detention of appellants was ever mentioned and that no overt act of either was threatened. No legitimate inference that appellants were fleeing from any danger can arise from the testimony about the acts of, or the conversations between, appellants and Ramos. Indeed, the testimonial facts are that appellants’ departure was normal and that thereafter “everything was all right.” In short, the evidence negates rather than establishes an immediate flight. To this extent, the second ground of error is sustained.

For the failure of the State to establish an essential element of the offense charged, the judgments must be reversed. However, in the event of other proceedings, the following observations are noted.

Appellants’ contention that the evidence is insufficient to show that Ramos’ premises were properly licensed to sell alcoholic beverages because the license itself was not produced is not well taken. An inspector for the Texas Alcoholic Beverage Commission testified that he had custody and control of the records of licenses issued for establishments located in Webb County. The records revealed that a license, effective for one year, was issued to Ramos for his bar less than two months before his death; the license was not cancelled and it was in effect on the date of the offense alleged. Similar evidence caused a like contention to be rejected in Reyna v. State, 477 S.W.2d 564 (Tex.Cr.App.1972). In this respect, the second ground is overruled.

In view of the remand, we need not determine whether, as appellant Mani advocates in his sixth ground, the admission of the statement offered by appellant Rodriquez was reversible error. But, in the event of another joint trial and a proper objection to the admission of the statement, attention is directed to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and to their progeny. Bruton holds that the admission of a confession by a codefendant who does not testify deprives the other defendant, who is implicated by the confession, of his confrontation rights conferred by the Sixth Amendment to the United States Constitution. Even though the jury is instructed to disregard the hearsay admission in judging the non-confessing defendant, the harm is not obviated unless it can be said, under the holding of Harrington, that the case against the non-confessing defendant is so overwhelming that the admission of the confession is harmless beyond a reasonable doubt.

We pretermit any further discussion of the remaining contentions. They concern matters that either were not preserved for review or are not likely to recur or to recur in the same context.

Because the State failed to establish an essential element of the offense charged, the judgments are reversed, and the cause is remanded.

Opinion approved by the Court.

       All subsequent references to sections are to sections of the Texas Penal Code (1974).


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Frank SLAVIN, Appellant, v. The STATE of Texas, Appellee.
    No. 52606.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Rehearing Denied March 30, 1977. .

      Dalton C. Gandy, Fort Worth, court appointed on appeal only, for appellant.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of indecency with a child; the punishment, which is enhanced by prior felony convictions, is imprisonment for life.

The appellant asserts that the indictment is fundamentally defective. We agree. The State attempted to allege the commission of this offense in exactly the same words that we held to be insufficient in Victory v. State, Tex.Cr.App., 547 S.W.2d 1 (Decided January 21, 1976, opinion on motion for rehearing delivered November 3, 1976).

The indictment in the case at bar in pertinent part reads:

“. . . did then and there knowingly and intentionally engage in sexual contact with V_R_F_, a child younger than 17 years and not then the spouse of the defendant, by touching the genitals of V-R-F-”

In Victory v. State, supra, the indictment was held to be defective because it failed to allege that the touching of the genitals of the named child was done with the intent to arouse or gratify the sexual desire of any person. It was there said that the indictment must allege the particular intent because it was a material fact in the description of the offense. Art. 21.05, V.A.C.C.P. Also, Art. 21.03, V.A.C.C.P. requires that everything should be stated in an indictment which is necessary to be proved. It is necessary to prove the specific intent required by the statute. V.T.C.A., Penal Code, Sec. 21.01(2).

Since the indictment omitted the necessary allegation of the particular intent, the indictment is fatally and fundamentally defective, and even though a motion to quash the indictment or a motion to dismiss the indictment was not filed, reversible error is presented. See Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590 (Decided November 3, 1976).

The judgment is reversed and the prosecution on this indictment is ordered dismissed.

Opinion approved by the Court.

DOUGLAS, J., dissents.


author: ROBERTS, Judge.

text:
    Ex parte Pablo FLORES, Jr.
    No. 53937.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Rehearing Denied March 30, 1977.

      Sam Saleh, Lamesa, for appellant.
    Joe Smith, Dist. Atty., and Ricky Smith, Asst. Dist. Atty., Lamesa, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order of the trial court entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of “Alabama.

The executive warrant of the Governor of this State, which was admitted into evidence, is regular on its face and makes out a prima facie case authorizing extradition. Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975). The Governor’s warrant states, among other things, that appellant “stands charged by AFFIDAVITS BEFORE A MAGISTRATE WITH WARRANTS before the proper authorities, with the crime of FALSE PRETENSE(s) — (two counts),” etc.

Appellant’s sole contention on appeal is that the trial court erred in remanding him for extradition because the Alabama affidavits, upon which the requisition was based, failed to state the date on which the offenses were allegedly committed in that State. An examination of these affidavits reveals that they do not, in fact, state the date of the alleged offenses. Nevertheless, we have concluded that such failure does not defeat appellant’s extradition.

In Pearce v. State, 32 Tex.Cr.R. 301, 23 S.W. 15 (1893), the relator had been remanded to custody for extradition to the State of Alabama. He contended that the Alabama indictments, upon which requisition was sought, were wholly void, in that neither venue nor the dates of the alleged offenses were laid therein. On appeal, the extradition was upheld. In a separate opinion by Hurt, P. J., and Davidson, J., it was stated:

“Our position upon this question is that, if it reasonably appears upon the trial of the habeas corpus that the relator is charged by indictment, in the demanding state, whether the indictment be sufficient or not under the law of that state, the court trying the habeas corpus case will not discharge the relator because of substantial defects in the indictment under the laws of the demanding state. To require this would entail upon the court an investigation of the sufficiency of the indictment in the demanding state, when the true rule is that, if it appears to the court that he is charged by indictment with an offense, all other prerequisites being complied with, the applicant should be extradited.”

That decision was affirmed by the Supreme Court of the United States in Pearce v. Texas, 155 U.S. 311, 15 S.Ct. 116, 39 L.Ed. 164 (1894).

In Ex parte Woodland, 146 Tex.Cr.R. 616, 177 S.W.2d 62 (1943), the indictment upon which requisition to the State of Mississippi was sought alleged that the offense was committed “on or about the_day of -, 1943.” Contrary to the relator’s assertion that the Mississippi indictment was fatally defective, this Court, citing Pearce v. State, supra, upheld Woodland’s extradition and affirmed, saying,

“If the indictments against relator are defective under the laws of the demanding State, he can so show in that State. Such question is not one for the determination of the courts of this State.”

In Ex parte Drake, 363 S.W.2d 781 (Tex.Cr.App.1962), extradition to Alabama was again upheld, even though the Alabama indictment failed to contain an allegation as to when the offense was purportedly committed. Relying upon Ex parte Woodland, supra, and Pearce v. State, supra, the extradition was upheld.

Appellant has advanced no reason for construing affidavits from a demanding state more strictly than indictments from a demanding state; and, we refuse to do so. See and compare Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App.1966). Further, we adhere to what we” said in Ex parte Bowman, 480 S.W.2d 675 (Tex.Cr.App.1972), that the asylum state is not concerned with the sufficiency of the indictment, information, or affidavit as a criminal pleading, because this is a question to be determined by the courts of the demanding states. See also Ex parte Gore, 162 Tex.Cr.R. 128, 283 S.W.2d 69 (1955), and Ex parte Strom, 168 Tex.Cr.R. 130, 324 S.W.2d 224 (1959).

The judgment is affirmed.


author: BROWN, Commissioner.

text:
    Morris W. RALEY, Appellant, v. The STATE of Texas, Appellee.
    No. 46123.
    Court of Criminal Appeals of Texas.
    March 16, 1977.

      John T. Montford, on appeal only, Lubbock, for appellant.
    Steve W. Simmons, Dist. Atty., and David R. Rosado, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for embezzlement under Article 1534, Vernon’s Ann.P.C. Appellant was tried before a jury and assessed punishment of two years in the Texas Department of Corrections. Imposition of sentence was suspended and appellant was placed on probation.

Appellant was indicted in 1971 for this offense and was initially tried in 1971, such trial ending in a mistrial. On retrial in 1972, appellant was convicted and in a per curiam opinion delivered April 18, 1973 the conviction was affirmed by this Court because no brief had been filed in accordance with Article 40.09(9), Vernon’s Ann.C.C.P. Appellant was later granted an out-of-time appeal because his retained counsel had failed to prosecute his appeal after making representations to appellant that he was doing so. Ex Parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975).

Appellant now raises twenty-nine grounds of error. We have reviewed all of the grounds of error and have determined that the judgment must be reversed for error in the admission into evidence in this trial of a transcript of testimony given by a witness at appellant’s first trial. We will, therefore, discuss only appellant’s seventh through eleventh grounds of error.

Briefly summarized, the record reflects that appellant was employed as Chief Juvenile Probation Officer for El Paso County at the time of the alleged offense in 1969. He was indicted for the embezzlement of fifty ($50) dollars paid to him by a Mrs. Marie Kellum in restitution for damages caused by her son, a juvenile offender, to a car owned by Gary Sanderling. Mrs. Kel-lum testified that on September 10, 1969 she made out a check for fifty dollars, payable to appellant, and mailed it to him at the juvenile detention home. She said that the check cleared her bank, endorsed by appellant, on September 22,1969. She further stated that she was following appellant’s instructions in mailing him the check because she understood that appellant would act “as her agent” and see that Sand-erling was paid.

One of appellant’s secretaries testified that she cashed the check in question and that it was endorsed with appellant’s signature. She stated that she gave the fifty dollars in cash to appellant on September 18, 1969. She said that she thought the check was unusual because it contained the notation that it was for “court costs” in the case of Johnny Lansford (Mrs. Kellum’s son). She thought it unusual because she did not remember any restitution payments being involved in that particular case.

Other testimony established that it was not unusual for the secretary to cash checks for appellant since he had established a cash disbursement system for restitution payments. It was developed that the juvenile offenders, or their families, would make payments to appellant’s office, usually in cash, and would receive a written receipt. The money was maintained in a restitution fund and disbursed to the complainants, also in cash. The bookkeeping method for these disbursements was not established by the evidence.

Gary Sanderling, owner of the damaged car, did not testify in this trial. However, the State introduced into evidence the transcript of his testimony at appellant’s first trial which resulted in a mistrial. The essence of Sanderling’s testimony was that he was present in the courthouse in El Paso on the day of the Lansford boy’s juvenile hearing. Sanderling stated that after the hearing he was told by a man, whom he could not identify, that the Lansford family was in poor financial condition due to the recent death of the boy’s father. He stated that the man left him with the impression that it would be very difficult to get restitution payments for damage to his car. He further stated that he never received a fifty dollar payment and heard nothing more about the case. He also stated that he made no attempt to contact anyone at the juvenile probation offices before he was transferred away from El Paso in December of 1969.

Appellant objected to the introduction of the transcript of Sanderling’s testimony on the grounds that the State failed to lay the proper predicate for the introduction of the transcript under Article 39.01, Vernon’s Ann.C.C.P.

If a witness has once testified in a case, in a preliminary hearing or in a former trial, and the accused was present and had the opportunity to cross-examine the witness, and such witness has since died, or resides out of the State, or has removed beyond the limits of the State, or cannot attend by reason of age or bodily infirmity, or has been prevented from attending court through the act or agency of the other party, his testimony may be reproduced at a subsequent trial of the case if the proper predicate be laid for its admission. See Article 39.01, Vernon’s Ann.C.C.P.; 1 Branch’s Ann.P.C., 2d ed., Sec. 98, p. 110.

To be admissible it must be shown that the witness’s testimony at the former trial or hearing was given under oath, that it was competent, that the accused was present and had adequate opportunity to cross-examine him through counsel, and that the accused was the defendant at the former trial or hearing upon the same charge. See 24 Tex.Jur.2d, See. 698, p. 337; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974); Carver v. State, 510 S.W.2d 349 (Tex.Cr.App.1974). Such predicate must be clearly and satisfactorily established before such testimony can be reproduced. 1 Branch’s Ann.P.C., 2d ed., Sec. 99, p. 112.

The Supreme Court in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), noted that the exception to the confrontation requirement has been explained and “justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.”

Where the State seeks to reproduce testimony of an absent witness given at a prior hearing, it has the burden of establishing an exception to the right of confrontation. Forbes v. State, supra; Carver v. State, supra; Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1969); Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446 (Tex.Cr.App.1951).

“Recognizing the traditional exception to the confrontation requirement where a witness is unavailable and has given testimony in a previous judicial proceeding against the same defendant which was subject to cross-examination, the Supreme Court in Barber, supra, nevertheless held that ‘a witness is not “unavailable” for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.’ ” Carver v. State, supra; Forbes v. State, supra. Compare Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

Appellant in the instant case contends that the State failed to lay the proper predicate for the introduction of Sanderling’s testimony by failing to make a good-faith effort to secure his attendance, knowing his whereabouts and knowing his availability for trial.

We note at the outset that no subpoena was ever issued for Sanderling. The record reflects that an investigator for the El Paso district attorney’s office had determined that Sanderling resided in North Carolina. The investigator testified that he had attempted to “secure the attendance” of Sanderling by calling his home on various occasions, but had received no answer. He stated that he did nothing further to contact Sanderling. The prosecutor, Mrs. Sipes, testified that she sent Sanderling a letter on December 18, 1971 requesting an estimate of his expenses for coming to testify. She stated that Sanderling responded by telephone and told her that he was in school in North Carolina and “would be more than willing to come to El Paso to testify in this trial” but that he was going to Florida for a school vacation for the Christmas holidays and would contact her again to ascertain when he would be able to attend. Mrs. Sipes stated that this telephone conversation took place sometime between the mailing of her letter on December 18 and Christmas, only two weeks prior to this January 4, 1972 trial. She further stated that she determined that Sanderling would be “financially unable to attend” the trial because his own funds were insufficient, although it was not established when she learned this. The prosecution also presented testimony by the county auditor that the county had no funds to pay Sand-erling’s expenses to El Paso. It was further developed that Sanderling was residing in North Carolina at the time of appellant’s first trial and his expenses had been paid to enable his attendance at that trial.

Under the provisions of Article 24.28, Sec. 4, Vernon’s Ann.C.C.P., the court in the instant case could have issued a summons to compel the attendance of Sanderling at appellant’s trial. (Both North Carolina and Florida have adopted provisions of the Uniform Act to secure the attendance of witnesses from without the State. See West’s F.S.A. Sec. 942.01 to 942.06 and North Carolina G.S. Sec. 15A-811 to 15A-816. Article 24.28, Sec. 4(b) also provides for the payment of compensation to nonresident witnesses as required for compliance with Article 24.28.

In light of these provisions and the requirements of Barber v. Page, supra, we do not think that the State has established a “good-faith” effort to secure the attendance of Sanderling. The prosecutor herself testified that the witness was willing to attend the trial. It appears that the only compelling reason prohibiting his attendance was his own lack of funds and the county’s inability to pay his expenses. As stated in Barber v. Page, supra, the appellant’s right of confrontation cannot be dispensed with so lightly. It was therefore error for the trial court to permit the reading of the transcript of Sanderling’s testimony at appellant’s trial.

Furthermore, we cannot hold that the introduction of the transcript constituted harmless error under the rule set out in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

In Fellers v. State, 138 Tex.Cr.R. 307, 136 S.W.2d 217 (Tex.Cr.App.1940), this Court stated,

“In order to sustain a prosecution for embezzlement against an agent of a private person or corporation, four distinct propositions of fact must be established in evidence, beyond a reasonable doubt. * * * 1. That the defendant was the agent of the person or corporation as alleged, and by the terms of his employment was charged with the duty of receiving the money of his principal. 2. That he did so receive money belonging to his principal. 3. That he received it in the course of his employment. 4. That he embezzled, misapplied, or converted it to his own use.”

In the instant case the evidence, as presented by the State, shows (1) that appellant routinely acted as an intermediary between juveniles and complainants; (2) that he assumed this relationship with Mrs. Kellum; (3) that Mrs. Kellum mailed a check to appellant to pay her son’s restitution; (4) that the check was endorsed with appellant’s signature and cashed by appellant’s secretary; (5) that the secretary gave the money to appellant; and (6) that Sanderling never received the money.

Under the facts and circumstances of this case, it was essential to the State’s case that the disposition of the proceeds of Mrs. Kellum’s check be. established. Unlike Forbes v. State, supra; Carver v. State, supra, and Whitehead v. State, supra, there was no evidence other than the testimony of the absent witness which would establish appellant’s guilt. Sanderling’s testimony was the State's only evidence of any alleged misappropriation of the proceeds of the check.

Therefore, the judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: BROWN, Commissioner. DOUGLAS, J.,

text:
    J. D. WESLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51906.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Rod Poirot, Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky 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

BROWN, Commissioner.

This is an appeal from a conviction for indecency with a child under V.T.C.A. Penal Code, Art. 21.11. Trial was before a jury and punishment was assessed by the trial court at ten (10) years in the Texas Department of Corrections.

We note at the outset that appellant filed a supplemental brief in the trial court and in this Court in which he raises for the first time a new ground of error alleging a defect in the indictment. We have previously held that such a ground will be reviewed only in the interest of justice. Vernon’s Ann.C.C.P., Art. 40.09, Sec. 13; Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973); Kalmbach v. State, 481 S.W.2d 151 (Tex.Cr.App.1972).

Appellant contends that the indictment is defective in that it failed to allege an element of the offense; namely, “intent to arouse or gratify the sexual desire of any person.” We note that if appellant had filed a motion to quash the indictment that the disposition of this case would be controlled by the recent decision in Victory v. State, Tex.Cr.App., 547 S.W.2d 1 (No. 50,-764 decided January 21, 1976) (State’s Motion for Rehearing overruled, November 3, 1976). The issue then is whether the defect in the indictment presents reversible error in the absence of a motion to quash.

In American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974) we held that if an indictment fails to charge that an offense was committed, such failure is an error in substance and may be raised for the first time on appeal.

In Victory v. State, supra, we held that an indictment must allege both the act or omission and the accompanying mental state because the “accompanying mental state to the act or omission is part of the conduct.” V.T.C.A. Penal Code, Sec. 1.07(a)(13) states that “elements of an offense” means the “forbidden conduct” plus the required culpability as well as the result and the negation of any exception to the offense.

Therefore, since the requisite intent is an essential element of the offense, the failure to allege intent would constitute an error of substance which can be raised for the first time on appeal. American Plant Food v. State, supra. Furthermore, failure to allege the intent constitutes reversible error. Victory v. State, supra.

The judgment is reversed and the cause ordered dismissed.

Opinion approved by the Court.

DOUGLAS, J.,

dissents in the dissenting opinion in Victory v. State, 547 S.W.2d 1 (No. 50,764) motion for rehearing overruled March 9, 1977.


text:
    Larry Eugene WALLS, Appellant, v. The STATE of Texas, Appellee.
    No. 52258.
    Court of Criminal Appeals of Texas.
    March 16, 1977.

      Richard A. Mayhan, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus, Ned B. Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

REYNOLDS, Commissioner.

Appellant was convicted of the offense of robbery by firearms. His punishment was assessed by the jury at confinement for twenty-five years.

The prosecution was for the 27 November 1973 robbery of Loretta L. Budro, the manager of a 7 — 11 store in Houston, from whom $820 was taken at gunpoint while she was in fear of her life or bodily injury. With sufficient time and ample opportunity for observation at the scene, she positively identified appellant as the robber who was armed with a pistol.

Four days later on 1 December 1973, Houston police, acting on a report by John R. Sharp, Jr., that appellant had robbed him with a pistol and then entered a designated house in Houston, apprehended appellant, who was armed with a loaded pistol, as he emerged from the house.

Appellant did not testify and he offered no witness in his behalf.

Initially, appellant contends that the court erred in overruling his motion to suppress evidence of the complainant’s lineup identification because the testimony indicated the lineup was suggestive. Neither of these matters was preserved for review. The record fails to show that the motion to suppress was presented to, acted on or denied by the court as a necessary predicate for the contention, Weir v. State, 503 S.W.2d 571 (Tex.Cr.App.1974), or that any objection was made to the question or answer now asserted to be indicative of undue suggestion, which is required for preservation of error. Hunter v. State, 530 S.W.2d 573 (Tex.Cr.App.1975).

Next, appellant complains that over his objection the trial court erroneously admitted testimony of an extraneous offense. During the presentation of the State’s case in chief, a police officer testified that, in response to a call, he met certain complainants, one of whom was John R. Sharp, who stated that a person had robbed them at their apartment. Appellant objected “to any testimony of this nature” and moved for a mistrial, stating, “This has nothing to do with the case in question.” The objection and motion were overruled and, upon his request to be heard, appellant’s counsel was informed by the court that he could take his bill later.

The officer’s continuing testimony was that after talking with the complainants and receiving a description of the suspect, he and his partner went to a house at a certain location where they were met by another officer. As the officer started to testify about someone inside, an objection and motion for mistrial were offered. The court overruled the objection and said, “I will let him testify subject to making it material at a later time.”

Thereuport, the officer testified that when police officers knocked on the front door and identified themselves as police, the appellant ran out the back door and was apprehended by the testifying officer. A search of appellant’s person revealed a loaded pistol in his back pocket.

Thereafter, John R. Sharp, J., was called by the State and gave testimony concerning his robbery by appellant without objection. Upon cross-examination, Sharp acknowledged that he knew nothing about the robbery of Miss Budro. At this point appellant began an objection based on immateriality and the court, interposing the comment that the testimony was let in without objection, advised the jury that he would charge them “that you will not consider any extraneous offenses in connection with the case at hand except as relates (sic) to the arrest in this case.” Counsel replied that he thought he was making a running objection to any extraneous offense whenever he objected to the first one, and the court responded that he did not understand it that way.

The State rested and appellant, making his bill, moved for a mistrial on the ground the State had failed to lay a predicate for the admission of any extraneous offense. Overruling the motion, the court stated that the testimony was admitted over appellant’s objection to show arrest. In the only reference in the court’s charge to an extraneous offense, the court instructed the jury that

“You are instructed that certain evidence was admitted in evidence before you in regard to the defendant’s having committed an offense other than the one for which he is now on trial. You are instructed that such evidence cannot be considered by you against the defendant as any evidence of guilt in this case.”

The State does not contend that the evidence of the extraneous offense became material to its case; that is, the State does not suggest any circumstance which would justify the admission of the evidence of the collateral crime. Rather, the thrust of the State’s response to appellant’s complaint is that the objections made were not specific enough and that appellant’s brief is not in compliance with Article 40.09, Y.A.C.C.P.

The objections, and particularly the first, were not as specific as they should have been, and the presentation of the ground of error bears too little resemblance to the requirements of Article 40.09, V.A.C. C.P.; nevertheless, we think that from the beginning the objections were sufficient to apprise the court that appellant was objecting to the admission of the evidence of an extraneous offense whose materiality was not established, and that the brief is adequate to present the error alleged.

Although the court said the evidence of the extraneous offense was admitted over appellant’s objection to show arrest, the jury was not charged to that effect; indeed, they were merely instructed not to consider it as any evidence of guilt in this case. There are, of course, many and varied circumstances which justify the admission of evidence of an extraneous offense; but, because the accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, evidence of an extraneous offense is not admissible unless there is shown a relationship between it and the evidence necessary to prove the accused committed the crime with which he is charged. See, e. g., Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972); Rogers v. State, 484 S.W.2d 708 (Tex.Cr.App.1972); Jones v. State, 481 S.W.2d 900 (Tex.Cr.App.1972).

Here, however, the State does not suggest a relationship, and we find no sufficient relationship between the robbery of Sharp and the proof necessary to establish that appellant robbed Miss Budro. Even though we accept the similarities that both robberies were committed by appellant with a pistol, the robbery of Sharp has no legal relevance to the issue of whether appellant committed the robbery of Miss Budro. Miss Budro positively identified appellant as the one who robbed her and her testimony remained unimpeached. Appellant offered no evidence; he did not affirmatively contest any element of the crime to which evidence of his robbery of Sharp would be either relevant or necessary to prove an element of the offense charged against him. Moreover, the arrest could easily be shown sans evidence of the extraneous robbery which was not admissible as a circumstance of flight showing guilt because appellant’s arrest in the same city four days after the indicted offense does not indicate flight. Rogers v. State, supra.

Under these circumstances, the admission of the evidence of the extraneous offense was harmful error.

Two other grounds assign error to the prosecutor’s jury arguments concerning the extraneous offense. In the light of the erroneous admission of the evidence of the extraneous offense, an abbreviated discussion will suffice.

When, in the course of his opening argument at the guilt-innocence stage, the prosecutor asked the jury to consider and keep in mind the extraneous offense, the court responded to appellant’s objections by instructing the jury not to consider the prosecutor’s remarks and to follow the court’s charge. Motions for mistrial were denied. As previously noted, the court’s charge, while instructing the jury that the extraneous offense could not be considered as evidence of guilt in the case on trial, did not inform the jury what consideration they could give to the evidence. Otherwise unrestrained, the jury was left free to consider, as the prosecutor attempted to argue on two occasions, that appellant was a criminal generally. It has been the consistent holding of this Court that the accused should be tried on the indicted offense and not for being a criminal generally. Albrecht v. State, supra at 100.

At the punishment stage, the argument that appellant was not entitled to a break because “he is out there pointing his pistol at Miss Budro and robbing those other young men out there . . . ” was an invitation for the jury to consider the extraneous offense in assessing punishment. Appellant’s objection was overruled. It also is consistently held that an accused should not be assessed punishment for being a criminal generally. Klueppel v. State, 505 S.W.2d 572 (Tex.Cr.App.1974). Here, the jury assessed appellant’s punishment at ten years in excess of the minimum prescribed for the offense for which he was convicted, and we cannot say that the permitted argument was harmless.

We do not discuss the remaining three grounds. One of them is a mere statement and the other two concern matters which should not recur during further proceedings.

For the reasons stated, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: PHILLIPS, Judge.

text:
    Loysie M. MALLICOTE, Appellant, v. The STATE of Texas, Appellee.
    No. 52627.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Michael L. O’Neal, Dallas, for appellant.
    Henry Wade, Dist. Atty., Edgar A. Mason, Fred W. Davis, III, D. Brian Blessing, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for murder under V.T.C.A., Penal Code, Sec. 19.02 upon a plea of not guilty before a jury. The court assessed punishment at ten years’ confinement.

This is a case of circumstantial evidence in which we find a multitude of unexplained contradictions in the testimony of the material witnesses. Said evidence may be summarized as follows:

Officer M. D. Cosby of the Dallas Police Department responded to a shooting call during the early morning of April 12, 1974. Upon his initial examination of the apartment he found the body of Everette Leroy Rankin lying on a sofa in the living room. He observed a chest wound in the deceased’s body. He further testified that there appeared to have been a struggle and that appellant was in the room muttering, “I had to do it”. In his opinion appellant was intoxicated.

Officer J. M. Hunter also responded to the call. He observed a .20 gauge shotgun lying on the floor approximately three feet from the deceased with a barrel pointed away from the body. The presence of broken glass, bottles and an overturned ashtray on the floor indicated to Hunter that a struggle had taken place. Appellant appeared to Hunter to be intoxicated and incoherent. The medical examiner told Hunter that in his opinion the shotgun had been held from six inches to one foot of deceased’s body when fired.

Officer Glenn E. Thompson, an investigator from the Crime Scene Search Section of the Dallas Police Department, testified to recovering the shotgun from the apartment approximately eight to twelve inches from the deceased. It was his opinion that a struggle had taken place.

Dr. Vincent DiMaio of the Dallas County Medical Examiner’s Office testified that the muzzle of the shotgun was approximately one or one-half inch from Rankin’s chest when he was shot and that the weapon was held at a high angle. When the shotgun was discharged, the muzzle was underneath Rankin’s undershirt. At the time of death the deceased’s blood alcohol level was .283 which indicated to Dr. DiMaio that the deceased was almost to the point of intoxication at which he would lose consciousness. It was Dr. DiMaio’s opinion that Rankin’s death was a homicide.

The deceased’s brother, Jamie Earl Rankin, testified to the deceased’s illness and stated that in his opinion his brother would not commit suicide. His testimony concerning an encounter with appellant two and one-half years prior to the shooting forms the basis of appellant’s complaint in her First Ground of Error and will be discussed there.

Veedia Garner, called by appellant, lived in a neighboring apartment and testified that she was called into the hallway on the night of April 13,1974, at which time appellant asked her to accompany appellant to appellant’s apartment. When Garner refused, appellant stated, “I think something has happened”, and “Well, I think there’s somebody down there dead”. Garner heard no gunshot and did not think appellant had been drinking. She testified that the deceased was “sickly” and appellant expressed concern over his condition. She also stated that in the past appellant had requested her to dial the telephone for appellant who was unable to do so because of an infirmity in her arms.

Sue Williams shared a common wall with appellant and deceased’s apartment. She heard no shot or disturbance, but called the police at the request of appellant and Garner. Williams testified that appellant did not appear intoxicated. Contrary to Officer Cosby’s testimony, she stated that she was with appellant and Garner when the first officer arrived and that the officer took appellant by force back to her apartment. She did not hear appellant say, “I had to do it”.

Appellant testified that she took care of and kept house for the deceased who was extremely ill. She denied shooting the deceased. According to her testimony, she fixed supper for the deceased and had a glass of wine with him, following which she took several prescription drugs and went to bed. Her next recollection is of two police officers in her apartment.

Over what we deem sufficient objection to raise the issue of the admissibility of an extraneous offense, the State was permitted to prove that the brother of the deceased and his son visited deceased and appellant in November of 1972 in their apartment at a time when both deceased and appellant had been drinking heavily, that upon said visit the son suddenly informed said brother that appellant was standing by his side and pointing a pistol at his head, that there had been no argument or disagreement prior to said time and that deceased’s said brother immediately disarmed appellant and left. Such is properly raised by appellant’s First Ground of Error.

Evidence of an extraneous offense committed by an accused has been held admissible as “res gestae” and to prove identity, intent or knowledge, state of mind, motive, system, scheme or plan, and to rebut or refute a defensive theory. Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97; Johnson v. State, Tex.Cr.App., 494 S.W.2d 870; Halliburton v. State, Tex.Cr.App., 528 S.W.2d 216. The only argument of significant strength that the State can make toward admissibility of said proof that appellant while intoxicated on an occasion approximately two and one-half years prior to the date of this offense pointed a pistol at the head of deceased’s brother is that such was relevant to show the effect of alcohol upon appellant and her tendency toward belligerency and resort to firearms when under its influence. In other words, that such proof is relevant on the question of motive. Though said proof might be of some slight relevancy on said question, such is certainly not what we deem to be material relevancy. All evidence of a defendant’s commission of collateral crimes has some slight relevancy toward the likelihood of his committing an alleged crime, and especially so where the collateral crime is similar in nature to the one charged against the accused. However, as stated by this Court in Albrecht v. State, supra, “The test for determining admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory aspects, if any.” We consider proof of the unexplained act of the appellant of pointing a pistol at deceased’s brother while intoxicated two and one-half years prior to the offense alleged herein to be so inherently prejudicial to appellant under the many contradicted facts of this circumstantial evidence case that its slight probative value, if any, is far outweighed by its potentiality for improper, unjustified and inflammatory inferences against the accused. The reasons for the need for its exclusion are well stated by Judge Odom in Albrecht v. State, supra, at page 100, as follows:

“Limitations on the admissibility of evidence of an accused’s prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him.”

The judgment is reversed and the cause remanded.

      . “Your Honor, we would object to the testimony of this witness. One, the State, I think, is trying to get this in under, you know, a prior type offense showing a course of conduct, which this does not meet the requirements of the law .


author: GREEN, Commissioner.

text:
    Barry Bill PHILLIPS and Jay C. Emerson, Appellants, v. The STATE of Texas, Appellee.
    No. 52696.
    Court of Criminal Appeals of Texas.
    March 16, 1977.

      Charles L. Caperton, Dallas, for Phillips.
    George R. Milner and Ronald L. Goran-son — on appeal only — Dallas, for appellant.
    Joe Smith, Dist. Atty., Seminole, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a joint trial before a jury, appellants Barry Bill Phillips and Jay C. Emerson were convicted of possession of more than four ounces of marihuana, a felony. Punishment of each was assessed at five years probated.

On appeal, appellant Emerson makes the contentions of insufficiency of the evidence to support the verdict and of error in the admission over appropriate objection of the evidence of the marihuana seized in the alleged unlawful search of the truck of Jackie Eugene Hinson. Appellant Phillips raises only the contention of insufficiency of the evidence to support the verdict. However, in the interest of justice and because constitutional questions are involved, we have reviewed the evidence concerning probable cause to stop the truck from which the marihuana was taken and probable cause before stopping it to search the truck and seize the marihuana, insofar as said evidence applies to appellant Phillips as well as to appellant Emerson, in order to determine whether fundamental error is present as to appellant Phillips. See Art. 40.09, Sec. 13, V.A.C.C.P.; Kaser v. State, Tex.Cr.App., 505 S.W.2d 806; Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744; Heltzel v. State, Tex.Cr.App., 462 S.W.2d 289. The record reflects that Phillips also made appropriate objection to such evidence.

This case involves a seizure of contraband; this seizure in turn resulted in an indictment against these appellants charging a possessory offense in which the appellants’ alleged possession of the seized contraband at the time of the contested search and seizure was an essential element of the State’s case. Hence, although appellants were not present at the time the truck containing the marihuana was stopped and searched, and claimed no possessory interest in the truck or the contraband, they have standing to contest the legality of the admission in evidence of the stopping and search of the truck. Riojas v. State, Tex. Cr.App., 530 S.W.2d 298, and authorities there cited; Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

The instant case against these appellants involves the same marihuana that was seized in the search of a U — Haul van-type truck being operated by Jackie Eugene Hinson on January 17, 1975, which truck was stopped by Sheriff Guy Kinnison and his deputy as it was leaving the Dawson County Airport. See Hinson v. State, 547 S.W.2d 277 (1977). In Hinson, we reversed the judgment because of error in admitting, over appropriate objections, evidence of the stopping by the officers of the truck and the subsequent finding of the marihuana in the search. In reversing, we held:

“From the facts and circumstances, which we find in the record, and will discuss, it is obvious that the Sheriff did not have probable cause to stop and arrest either the appellant or his passenger, and the Sheriff did not have probable cause to search the truck before it was stopped. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).”

After discussing the facts and circumstances, we stated:

“We have concluded that the evidence in this record shows no more than a mere suspicion and that the evidence in this record does not show specific and articu-lable facts which reasonably warranted the stopping of the appellant for further investigation. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972); Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973); Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976). It is, of course, established by authority too well known to require citation, that the results of a search cannot be considered to determine whether there was probable cause for the search in the first place.”

The evidence discussed in Hinson, supra, and the portion of the testimony of Sheriff Kinnison there quoted were taken from a transcription of the evidence given at a joint pre-trial hearing on separate motions to suppress the evidence of the search of the U-Haul type truck filed by Hinson and these appellants. The three defendants and their separate counsel were present and participated in the joint pre-trial proceedings. The details of the actions of the officers in stopping defendant Hinson and searching his truck and seizing the marihuana (over 1200 pounds) found therein are thoroughly set out in our opinion in Hinson v. State, supra, and need not be repeated here.

Additional evidence developed at the trial of appellants reflects the following: About two hours after the search of the U — Haul type truck and the arrest of Hin-son, Sheriff Kinnison, his deputy and a newspaper reporter returned to the airport. There, the sheriff drove his car close to the runway, and while watching the plane which had brought the marihuana (Hinson had stated its cargo was clock parts) depart, he noticed a pickup truck parked near the runway flash its lights several times. The sheriff also noticed that the passenger in the pickup was holding a “walkie-talkie” type high frequency radio frequently used for ground to air communication. The officers went to the pickup, which was occupied by these appellants, and asked for identification. New Mexico driver’s licenses were shown the officers bearing the names Barry D. Richardson and Lloyd Nolan Nash. The passengers stated they were there to meet an executive named Bill Moss, one of the two persons previously arrested who were in the U — Haul Truck. The officers then searched appellants’ truck for weapons and found a large photograph of Bill Moss. In a search of the occupants a small amount of marihuana less than four ounces was found. Appellants were than arrested. We have reviewed the record and find no probable cause for the search of appellants’ truck, or for their arrest and the search of their persons.

During the trial before the jury, evidence of the stopping of the U-Haul truck by the officers, the search of the truck and the finding of over 1200 pounds of marihuana therein as well as the search of appellants’ truck and of appellants personally was admitted over appellants’ appropriate objections. In the absence of probable cause1 we conclude that the trial court reversibly erred in admitting the evidence of the marihuana found during the search of the U— Haul type truck, see Hinson v. State, supra, and the small amount of marihuana and the other articles found in the subsequent search of appellants and their truck.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      . In Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, (1973), mentioned in Riojas, supra, the Supreme Court stated: “In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” The Court expressly reserved for future decision the question of standing “where possession at the time of the contested search and seizure ‘is an essential element of the offense . . charged,’ ” since that was not an essential element of the offense in that case. See also Smith v. State, Tex.Cr.App., 530 S.W.2d 827, where the defendant was found to have no standing because he was not present at the time of the search, and “was not charged with an offense which included the possession of the automobile as an essential element of the offense.”


author: DOUGLAS, Judge.

text:
    Suzano Salinas PEREZ, III, Appellant, v. The STATE of Texas, Appellee.
    No. 52782.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Philip S. Greene and Dan B. Gerson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Robert N. Burdette, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for burglary with intent to commit theft under the former code. Trial was before the court which found appellant guilty and assessed punishment at twelve years.

The sufficiency of the evidence is not challenged. The offense occurred at a large apartment complex on Hillcroft Street in Houston. The complainant, Calvin Daetwyler, lived in Apartment 133. He left home early in the morning of July 17, 1973, and returned to the apartment complex “sometime after lunch.” He went to Apartment 133 with the manager and discovered that someone had entered it without consent. The entry had been made by someone “somehow” opening a wooden gate to the patio in back and by forcing open a patio sliding glass door. A gold watch which had belonged to Daetwyler’s grandfather was among the items which had been stolen from the apartment.

Alice Patrick, an employee of the apartment complex, saw a stranger fitting appellant’s description walking past the manager’s apartment between 12:15 and 12:30 p.m. He was looking up at the apartment and carrying a briefcase. Afterwards, she reported the event and gave a description of the stranger to Officer Ward, the security guard who resided at the complex. The officer had been summoned by the manager to investigate the burglary.

At approximately 1:30 p.m., Ward observed appellant “peeking through the fence” behind complainant’s apartment. Appellant had his hand on the fence gate as if he were about to enter the enclosed area, and the officer heard the gate latch “clicking.” Appellant was carrying a briefcase. Ward identified himself and asked appellant if he could help him. Appellant replied that he was looking for the Talberts who lived in that apartment. The officer told appellant that no Talberts lived in Apartment 133 and asked him who he was. Appellant responded that his name was “Alonzo” and that he would like to determine where the Talberts resided. Ward and appellant then went to the manager’s apartment “to check the rent roll.”

Officer Ward and the manager checked the rent roll and determined that no one named Talbert lived in the apartment complex. The officer then advised appellant that a burglary had occurred earlier and requested identification. Appellant responded that he had no identification but that he was on the apartment grounds selling Christmas cards. He opened his briefcase and showed the officer that it did contain Christmas cards. Ward told appellant he did not believe him because it was July and called the Houston Police Department.

While awaiting the arrival of the police, appellant became “very nervous and got up as if he was going to leave the room.” At that point Ward conducted a pat down search. The officer found an object in appellant’s pocket and asked what it was. Appellant pulled a watch out of the pocket and replied that he had found it on the other side of town the previous day. Complainant then entered the manager’s office and identified the watch as part of the stolen property.

Appellant’s sole contention is that the watch was obtained as the result of an illegal search and seizure. Ward testified that appellant was not under arrest when they went to the manager’s apartment to check the rent roll, but that he would not have let him leave because

“The apartment had been burglarized and I had a description of a suspect and he fit the description.
“Q. But you did not have a description of someone who — that someone had given you that they saw broke into an apartment, did you?
“A. That he had broke into it?
“Q. That anybody had broke into it?
“A. No, just a suspect in the area.”
* * * * * *
“THE COURT: Let me ask you, what information did you receive about any suspicious persons?
“THE WITNESS: The maid on the project, she had told me — she had told the manager — the maid on the project had told the manager that they had seen a suspicious person walking around on the project, and I was called from my extra job. I work at a bank and I came over to my apartment project, and I talked to the maid and the manager, and they described this subject, you know, identically. Then, when I did, I walked around the corner. I was going back to the office. It appeared to me that Mr. Perez, he had his hand on the patio gate and it was clicking as I walked up to him, and it appeared to me that he was fixing to enter the apartment again.
“THE COURT: What information do you have with regard to him being a suspicious person or what?
“THE WITNESS: It was my opinion, Your Honor. I observed the subject peering through the planks. It has a—
“THE COURT: No, but excuse me. You said you had information from the maid and Mrs. Gladys?
“THE WITNESS: Right.
“THE COURT: About a suspicious person?
“THE WITNESS: Yes, sir.
“THE COURT: What information did they actually give you with regard to why they felt he might be suspicious?
“THE WITNESS: Roth of them stated to me that that was the only person seen around Mr. Daetwyler’s house, and he was walking back and forth and just in general didn’t have any business on the project.”
***** *
“THE COURT: And you uncovered the watch as a result of the pat search?
“THE WITNESS: Yes, sir.
“THE COURT: Did you recognize it as a watch at the time you patted him down or did you think it might have been something else?
“THE WITNESS: No, sir. If Mr. Da-etwyler hadn’t walked in at the same time this all happened, I probably would have turned the subject loose in a few minutes.”

Circumstances short of probable cause for arrest may justify temporary detention for purposes of investigation since an investigation is considered to be a lesser personal intrusion upon the security of an individual. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

In the instant case, Officer Ward found appellant looking through the fence behind the burglarized apartment shortly after the burglary was discovered. Appellant looked as if he were about to enter the apartment’s patio area. The officer knew that appellant fit the description of a stranger who had been seen walking through the apartment grounds earlier. After appellant agreed to go to the manager’s office with the officer to check the rent rolls, he told the officer he had no identification. Appellant also told what the officer thought was an implausible story about selling Christmas cards in mid-summer. The officer then called other officers. When appellant acted as if he were going to leave, the officer conducted a limited “pat down” search which yielded the stolen gold Elgin watch.

The purpose of a limited search after a temporary detention is not to discover evidence of crime but to allow the peace officer to pursue investigation without fear of violence. Terry v. Ohio, supra; Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). However, in Terry the Supreme Court of the United States stated:

“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” See also Cox v. State, 442 S.W.2d 696 (Tex.Cr.App.1969).

We hold that the brief detention and subsequent frisk by the officer to have been reasonable under the circumstances. The evidence was properly admitted. It is clear from the record that the officer wanted to detain appellant long enough to investigate appellant’s suspicious actions and statements. Ward testified that appellant was not under arrest when they went into the manager’s office, that he did not call the officers until he discovered that appellant’s stories were probably false, and that he would have “turned the subject loose in a few minutes” if the stolen watch had not been discovered. The officer would have shirked his duty if he had done less. There is no showing that appellant thought he was under arrest when he went to the manager’s apartment to find out where the Talberts lived. After arriving there, he became nervous and acted as though he were going to leave. The officer than conducted a pat down search to maintain the status quo. When he did he felt an object and asked appellant to take it out of his pocket. Before seeing the object he thought it was larger than a modern watch.

The judgment is affirmed.


text:
    Augustin GALLEGOS, Appellant, v. The STATE of Texas, Appellee.
    No. 52992.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Bruce J. Ponder, El Paso, for appellant.
    George N. Rodriquez, County Atty., J. Todd Southern, Asst. County Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. Me Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was convicted of the offense of reckless conduct by a jury in County Court at Law # 2 of El Paso County. The court assessed punishment at confinement in the county jail for 180 days, probated for six months.

Appellant’s sole ground of error is that the court erred in overruling his objection to the court’s charge because the court failed to charge on the offense of assault which appellant contends is a lesser included offense to reckless conduct under the 1974 Penal Code. Appellant is mistaken in this assumption.

Article 37.09, Vernon’s Ann.C.C.P., provides that an offense is a lesser included offense if:

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

V.T.C.A. Penal Code, Secs. 22.01 to 22.04, provide that reckless acts that cause bodily injury constitute assault, but that reckless acts that fall short of injuring another are excluded. V.T.C.A. Penal Code, Sec. 22.05 (Reckless Conduct) applies to those acts that fall short of injuring another (emphasis added). Accordingly, reckless conduct is a lesser and included offense to assault under the Penal Code. This is exactly the reverse of appellant’s contention.

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Larry Lee WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 53041.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Howard G. Wilson, Dallas, for appellant. Henry Wade, Dist. Atty., Gary M. Love, Brady Sparks and John W. Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated rape. The jury assessed punishment at thirty-five years.

The prosecutrix testified that appellant raped her after threatening her with a gun on May 6, 1975. Appellant testified in his own behalf that the prosecutrix consented to the sexual intercourse.

Appellant contends in four grounds of error that the trial court improperly limited appellant’s introduction of evidence concerning the prosecutrix’s prior sexual behavior. The trial court, after conducting a hearing out of the presence of the jury pursuant to V.T.C.A., Penal Code, Sec. 21.-13, refused to allow appellant to cross-examine the prosecutrix regarding an abortion she had two or three years prior to the rape. The court also excluded cross-examination of the prosecutrix in regard to her being treated for venereal disease and that she had engaged in sexual intercourse on two or three prior occasions. The record further reflects that the court refused to allow appellant to introduce to the jury a medical report prepared by the examining physician containing references to the same information and that the prosecutrix was taking oral contraceptives on the date of the offense.

“(a) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct may be admitted under Sections 21.02 through 21.05 of this code (rape, aggravated rape, sexual abuse, and aggravated sexual abuse) only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
“(b) If the defendant proposes to ask any question concerning specific instances, opinion evidence, or reputation evidence of the victim’s sexual conduct, either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this section. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits nor refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
“(c) The court shall seal the record of the in camera hearing required in Subsection (b) of this section for delivery to the appellate court in the event of an appeal. . .

The matters which appellant attempted to introduce were not germane to the issue of the victim’s acquiescence, or any other fact at issue in the case as required by Sec. 21.13, supra. See Young v. State, 547 S.W.2d 23 (Tex.Cr.App.1977), and cases there cited. We hold that the trial court did not err in excluding the evidence.

Appellant’s grounds of error are overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . The record reflects that appellant’s trial was conducted after the effective date of Sec. 21.13, supra. Sec. 21.13, supra, provides as follows:

      . Pursuant to the requirements of Sec. 21.13, supra, the evidence proffered by appellant at the in camera hearing was sealed by the court and is in the record before us.


author: ONION, Presiding Judge.

text:
    Raul Ruiz SALAS, Appellant, v. The STATE of Texas, Appellee.
    No. 53330.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Bart Cox, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., James C. Butts, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for burglary of a habitation where the jury assessed punishment at twenty (20) years.

Briefly, the facts reflect that on June 8, 1975 members of the El Paso City Police Department were on a stakeout at the Ramada Inn in that city on a surveillance, waiting for a suspected “drug deal” to transpire. They observed a burglary in process at Room 225 and identified the appellant as the man who entered the room and removed a television set therefrom. The evidence reflects that the room was rented at the time to a woman guest with two or three children who were apparently not present at the time. In the indictment the ownership was alleged in Joel Burns. Burns testified he was general manager of the said Ramada Inn at the time and was “responsible for the hotel and operation of the motel” and that he did not give the appellant permission to enter the room in question or to take anything therefrom.

Appellant advances two grounds of error. He contends the State failed to prove the allegations of ownership in Burns as laid in the indictment, and that there was a fatal variance between the averments of the indictment and the proof offered as to the ownership of the habitation alleged to have been burglarized.

Burglary of a habitation is defined by V.T.C.A., Penal Code, § 30.02, which provides in part:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building ■ (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
“(d) An offense under this section is a felony of the first degree if:
“(1) the premises are a habitation; or

V.T.C.A., Penal Code, § 30.01, provides in part:

“In this chapter:
“(1) ‘Habitation’ means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
“(A) each separately secured or occupied portion of the structure or vehicle; and
“(B) each structure appurtenant to or connected with the structure or vehicle.

In the Practice Commentary to V.T.C.A., Penal Code, § 30.02, it is written:

“ ‘Habitation’ is broader than ‘building’ in that it includes vehicles that are ‘adapted for the overnight accommodation of persons,’ Section 30.01(1). ‘Habitation’ also includes garages and other outbuildings, Section 30.01(1)(B), and ‘separately secured and occupied portions’ of a habitation, to cover those who, while legally in an apartment building or hotel, for example, enter another’s room, Section 30.01(1)(A).”

In Jones v. State, 532 S.W.2d 596, 600 (Tex.Cr.App.1976), it was observed that “habitation” was meant to be broader than “private residence,” as used in Article 1391, Vernon’s Ann.P.C., 1925.

V.T.C.A., Penal Code, § 1.07(a)(24), provides:

“ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”

V.T.C.A., Penal Code, § 1.07(a)(28), provides:

“ ‘Possession’ means actual care, custody, control, or management.”

Article 21.08, Vernon’s Ann.C.C.P. (Allegation of ownership), provides in part:

“Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. . . .”

It is clear that now, as in the past, ownership does not merely involve the title interest to property. See Ex parte Davis, 542 S.W.2d 192 (Tex.Cr.App.1976). From our study, it appears the Legislature has attempted to avoid evidentiary problems that arise at trial where the title interest of real property may be in one person or corporation, the management and control may be in another person, while a third person may have actual possession under a lease or rental contract.

The question before us then is whether it was proper to allege Joel Burns as owner. While it would have been proper to have alleged the woman renter of the hotel room as the owner, we conclude it was also proper to have alleged Burns, the hotel manager, as the owner. The evidence showed that as manager he had care, custody and management of the entire Ramada Inn, including Room 225, at the time in question, which supports the allegation as to ownership. Putting aside any question of who had the greater right of possession of the room at the time between the renter and the manager, it is also clear that the manager had a greater right of possession of the property than the actor (appellant) and would for this additional reason be an “owner.” Y.T.C.A., Penal Code, § 1.07(a)(24).

Both of appellant’s contentions are overruled.

The judgment is affirmed.


text:
    Ex parte John Michael PRIBBLE.
    No. 53934.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Art. 11.07, Vernon’s Ann.C.C.P., in which appellant challenges two convictions, Cause Nos. F-75-548-JI and F-75-4722-KI, in the Criminal District Court No. 2 of Dallas County. The convicting court has recommended that relief be granted and we agree.

On May 12, 1975, the petitioner was convicted by virtue of two indictments, each charging the offense of unlawfully, knowingly, and intentionally possessing a criminal instrument; namely, a forged prescription, with intent to use it in the commission of obtaining possession of a controlled substance. The offenses were alleged to have occurred on or about December 31, 1974, and on or about March 28, 1975. The convictions resulted from guilty pleas, and punishment was assessed at imprisonment for four (4) years in each case; however, the imposition of sentence in each case was suspended and appellant was placed on probation. No appeals were taken.

The disposition of this case is governed by Ex Parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976). The petitioner there was charged with the identical offenses as is the petitioner in the instant case. There we held that V.T.C.A., Penal Code, Sec. 16.01, which proscribes the possession of a criminal instrument with intent to use it in the commission of an offense, to be a general statute, whereas possession of a forged writing with the intent to utter it is forgery under V.T.C.A., Penal Code, Sec. 32.-21(a)(1)(C), and is a special statute dealing with the possession of forged instruments, including forged prescriptions. We concluded that Harrell was improperly convicted of unlawful possession of a criminal instrument and should have been charged with forgery under Section 32.21(a)(1)(C), a misdemeanor, over which the convicting district court did not have jurisdiction. The same result must follow in the instant case.

The relief sought is granted; the convictions are set aside.

It is so ordered.


text:
    Zaragoza Lerma GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 54472.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Lawrence A. Beauchamp, Jr., San Antonio, court appointed, for appellant.
    Ted Butler, Dist. Atty., E. Dickinson Ry-man, William W. Blagg and Joe D. Brown, Asst. Dist. Attys., San Antonio, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of attempted murder. A plea of “true” was made to the third paragraph of the indictment which alleged a 1936 conviction for murder for the purposes of enhancing punishment under V.T.C.A., Penal Code, Sec. 12.42(b). The second paragraph of the indictment, which alleged a 1941 conviction for assault with intent to commit murder with malice, was abandoned and dismissed. Upon conviction the court assessed punishment at imprisonment for ten (10) years under Sec. 12.42(b), supra.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by advancing two contentions which counsel says might arguably support the appeal. See Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). A copy of counsel’s brief has been delivered to appellant and appellant has been advised that he has a right to file a pro se brief. No such brief has been filed.

Counsel’s first contention relates to the 1936 murder conviction which was alleged for enhancement purposes. The third paragraph of the indictment alleged that on the 13th day of October, 1936, Zaragoza Lerma Garza was convicted of murder in Cause No. 41,375 in the Criminal District Court of Bexar County. The judgment and sentence in Cause No. 41,375, which was admitted in evidence without objection, shows that one Armando Zaragosa was convicted of murder in the Criminal District Court of Bexar County on October 13, 1936. Appellant’s written stipulation of evidence was admitted without objection. In that stipulation appellant swore, among other things, that he was the same named person who was found guilty in Cause No. 41,375.

As we understand appellant’s contention, he contends that the evidence was insufficient to show that he was the same person convicted of murder in 1936 because appellant’s name is Zaragoza Lerma Garza, whereas the person convicted in 1936 was named Armando Zaragosa. He relies on the following language from Helsley v. State, 128 Tex.Cr.R. 205, 80 S.W.2d 962 (1935):

“. . . The evidence touching the previous convictions was not admissible against appellant for the reason that the indictment contains an averment that the indictments in the prior cases were against ‘B. A. (Dick) Helsley,’ when as a matter of fact the proof showed that the offender named in the said previous indictments was not ‘Helsley.’ In one of them, the party charged is A. M. Shaw, alias Walter Walker Warren, alias W. W. Beck, alias Luther Ramsey, alias Walter Scott, alias L. C. Howard. In another indictment the offender is A. Vymola.”

Article 21.07, Vernon’s Ann.C.C.P. provides that when a person is known by two or more names an indictment is sufficient if it states either name. In Smith v. State, 446 S.W.2d 883 (Tex.Cr.App.1969), a murder case, the deceased was alleged in the indictment as “Roberta Thornton.” The evidence showed that the deceased was known by the name of “Roberta Jackson.” However, there was other evidence to show that the deceased was known as both “Roberta Jackson” and “Roberta Thornton.” There we held that there was no variance between the allegations in the indictment and the proof. See also Dears v. State, 465 S.W.2d 376 (Tex.Cr.App.1971); Hammond v. State, 465 S.W.2d 748 (Tex.Cr.App.1971); Pegoda v. State, 470 S.W.2d 675 (Tex.Cr.App.1971).

An examination of the above quoted statements in Helsley v. State, supra, reveals that they were dicta, since they were unnecessary to the disposition of that case. In fact, the evidence of the prior convictions in Helsley would have been admissible had the State shown, as it did in the case before us, that the defendant was the same person named in the previous indictments. However, to the extent that the statements in Helsley might be read contrary to Article 21.07, supra, and our holding herein, they are overruled.

An examination of the written stipulation of evidence, which was admitted without objection in this case, reveals that it meets the requirements of Article 1.15, Vernon’s Ann.C.C.P. Appellant’s sworn statement, which is contained in that stipulation, in which he admits that he is the same person who was found guilty in Cause No. 41,375 was sufficient to support the trial judge’s finding that the allegations in the third paragraph of the indictment were true. Consequently, we find the first contention without merit.

An examination of the second contention reveals it is also without merit. A discussion of it would unduly elongate this opinion and would add nothing to the jurisprudence of the State. It is overruled.

The judgment is affirmed.


text:
    William Charles CURTIS, Appellant, v. The STATE of Texas, Appellee.
    No. 53415.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Laird Palmer, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. On April 9, 1973, the appellant was convicted for the offense of possession of heroin; his punishment, assessed by a jury, is imprisonment for 10 years; the court, on the recommendation of the jury, placed the appellant on probation.

Four of the conditions of probation were that the appellant:

“1. Commit no offense against the laws of this State or of any other state or of the United States;
“3. Report to the probation officer as directed;
“7. Remain within a specified place;
“10. Pay $10.00 a month probation supervision fee to the Travis County Adult Probation Department not to exceed twenty-four (24) payments.”

The State’s Amended Motion to Revoke Probation, which was filed on April 17, 1975, alleged that the appellant had violated each of these conditions of probation as follows:

“ . . .he Failed to Report as directed; Failed to notify his Probation Officer of a change of address; and Failed to Pay his Supervision Fee as directed. Furthermore, he violated the provisions of his probation in that he committed the offense of Delivery of a Controlled Substance, to-wit: Heroin, in that on or about the 10th day of May, 1974, in the County of Dallas, State of Texas, the defendant did then and there knowingly and intentionally deliver to Eddie Brown a controlled substance, namely, Heroin.”

The appellant, who was in federal custody, was returned to Travis County, and after a hearing the court revoked probation on each of the four grounds alleged in the amended motion to revoke probation; the court imposed sentence on June 12, 1975.

The order to revoke probation for a violation of conditions 3 and 7 cannot be sustained because these conditions are so vague and indefinite that they cannot be enforced; they do not inform the probationer with sufficient certainty of what he is to do. See Parsons v. State, 513 S.W.2d 554 (Tex.Cr.App.1974); Flores v. State, 513 S.W.2d 66 (Tex.Cr.App.1974); DeLeon v. State, 466 S.W.2d 573 (Tex.Cr.App.1971); Brown v. State, 508 S.W.2d 366 (Tex.Cr.App.1974); Cotton v. State, 472 S.W.2d 526 (Tex.Cr.App.1971).

There is not sufficient evidence, if any, to support the allegation that the appellant violated condition of probation 10 that he was to pay a supervision fee. There is not sufficient evidence to show that the appellant had the ability to pay and willfully refused to pay the supervision fee. See Herrington v. State, 534 S.W.2d 331 (Tex.Cr.App.1976); Gormany v. State, 486 S.W.2d 324 (Tex.Cr.App.1972); Barber v. State, 486 S.W.2d 352 (Tex.Cr.App.1972); Brown v. State, supra; Cotton v. State, supra.

If the court’s order revoking probation is to be sustained, it must be on the evidence offered to prove the allegation that the appellant violated the condition of probation that he would commit no offense against the laws of this state, by the delivery of heroin to Eddie Brown on the 10th day of May, 1974. The appellant urges that the evidence is insufficient to sustain this allegation because there is no evidence of probative value to support the allegation that the substance delivered to Eddie Brown was heroin.

The State asserts that there is sufficient evidence to prove that the substance delivered to Eddie Brown by the appellant was heroin as alleged. Brown, an experienced narcotic officer, who was working as an undercover agent, made a Marquis reagent field test of the substance he obtained from the appellant. He testified there was a positive reaction to the Marquis reagent, which indicated that the substance delivered to him by the appellant was an opiate derivative. The chemist who analyzed the substance was not called as a witness, but Brown’s hearsay testimony that the chemist told him the substance was heroin was admitted without objection. The State also argued that Brown, who was an experienced narcotic officer, observed the powdered substance which was in an orange balloon, and that his opinion as an expert that the substance was heroin is sufficient to sustain the court’s finding.

A Marquis reagent test which is positive does not prove a substance is heroin. Brown correctly testified that it was merely evidence that the substance was an opiate derivative. There are at least twenty-five organic substances that can be extracted from opium; morphine, codeine and paregoric are among these substances. Drugs of Abuse, Drug Enforcement Administration, U.S. Dept, of Justice, 3rd ed. Brown’s testimony that he was told by the “DEA lab” chemist the substance was heroin is hearsay evidence of no probative value. Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975); Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975).

This Court has held that an experienced officer may be qualified to testify that a certain green leafy plant substance is marihuana. Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466 (1959); Satery v. State, 455 S.W.2d 294 (Tex.Cr.App.1970); Jordan v. State, 486 S.W.2d 784 (Tex.Cr.App.1972); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971). However, we are unwilling to say that an experienced officer can look at a white or brown powdered substance and testify that it is heroin since morphine, codeine, paregoric, other opiates, other controlled substances, and noncontrolled substances also appear in white or brown powdered form. A green leafy plant substance which is marihuana has different characteristics from other green leafy plant substances; an expert can determine the difference. The evidence here does not show that even the experienced expert can distinguish one white or brownish powdered substance from another and determine which is heroin.

The State is required to show in a revocation of probation proceeding that the court’s order is supported by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975). The State has failed to show by a preponderance of the evidence that the substance delivered by the appellant to Brown was heroin. See Roberts v. State, 537 S.W.2d 461 (Tex.Cr.App.1976); cf. United States v. Gregorio, 497 F.2d 1253 (4th Cir.1974) cert. denied 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298; United States v. Atkins, 473 F.2d 308 (8th Cir.1973).

Officer Brown testified that in May, 1975, in federal court the appellant had been found guilty of an offense arising out of the same transaction relied upon for revocation of probation in this case. Since there is no evidence that the federal conviction was final, the State quite properly does not rely upon that conviction as evidence to sustain the order of revocation here. See Harris v. State, 169 Tex.Cr.R. 71, 331 S.W.2d 941 (1960); Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App.1971); Prince v. State, 503 S.W.2d 777 (Tex.Cr.App.1974).

There is no explanation in the record and we are at a loss to understand why the State failed to call the chemist who it was said analyzed the substance to prove by him, if it could, that the substance in question was heroin. If that chemist was for some good reason unavailable, why did the State not have another chemist who was close by and available as a witness analyze the substance so it could offer his testimony? Under the record submitted, we must find there was an abuse of discretion in revoking the appellant’s probation.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS and ODOM, JJ., dissent.

      . We observe the order revoking probation incorrectly recites these conditions in different language than the order entered when probation was granted.


text:
    Jesse Ruiz GONZALES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 53896.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Gary J. Cohen, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., Richard E. Banks, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from an order revoking probation. Appellant was convicted of the primary offense of attempted burglary; the punishment, imprisonment for three (3) years.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. Counsel certified in the brief that he had delivered a copy of same to the appellant. Because there was nothing before us to show that appellant had been advised that he would be given an opportunity to examine the appellate record and that he had a right to file a pro se brief, we abated the appeal on January 12, 1977, in an unpublished per curiam opinion.

We now have before us a supplemental transcript which contains the affidavit of court-appointed counsel. In the affidavit counsel states that appellant has been paroled from the Department of Corrections and is currently living in Buda, Texas. He further states that appellant has no telephone and that he has mailed three separate letters to appellant by certified mail, return receipt requested, in which he requested appellant to contact him. He further states that appellant has answered none of the letters. Copies of these letters are attached to counsel’s affidavit; the last, which was received at appellant’s home on November 30, 1976, advised appellant that he would be given an opportunity to review the appellate record and that he had a right to file a pro se brief.

On January 24,1977, the clerk of the trial court mailed a letter to appellant’s address in Buda, advising appellant that he would be given an opportunity to review the appellate record and that he had a right to file a pro se brief. This letter was sent by certified mail and the returned receipt shows that it was delivered to appellant’s address on January 25,1977. Consequently, we conclude that there has been a showing of sufficient diligence to locate appellant in order to advise him of his appellate rights. We, therefore, order the appeal reinstated and will consider the same on the merits.

An examination of the record reveals that appellant entered a plea of “true” to the State’s motion to revoke probation and judicially confessed that he violated the same. Consequently, we agree with counsel’s conclusion that the appeal is wholly frivolous and without merit, and we further find nothing in the record which might arguably support the appeal.

The judgment is affirmed.

Opinion approved by the Court.