author: SAM D. JOHNSON, Justice.

text:
    Ollie B. COLLORA, Petitioner, v. Franklin R. NAVARRO, Respondent.
    No. B-7622.
    Supreme Court of Texas.
    Nov. 29, 1978.

      Houston C. Munson, Jr., Gonzales, for petitioner.
    Don Blansitt, Schulenburg, for interve-nors.
    Michael W. Melton, Schlanger, Cook, Cohn & Mills, Joel W. Cook, Houston, for respondent.
   SAM D. JOHNSON, Justice.

The question presented for our decision in this case is a narrow one. The substantive legal issue is whether or not a directed verdict may be based on the uncontradicted testimony of a party to the lawsuit. To pose the question in its precise factual context, did the testimony of Ollie Collora, plaintiff below and petitioner here, establish as a matter of law one element (j. e., a present agreement to be husband and wife) of a common-law marriage between herself and Joe Collora when the other elements of such a marriage were conclusively proven by evidence other than her testimony? The trial court ruled in favor of Mrs. Collora by granting her motion for directed verdict.' The court of civil appeals, with one member dissenting, reversed and remanded the cause. 566 S.W.2d 304. We agree with the action of the trial court and accordingly reverse the judgment of the court of civil appeals, but for reasons stated below, remand the cause to the trial court for rendition of a proper judgment.

Ollie Collora filed this suit against Franklin Navarro, defendant below and respondent here, in 1971 for partition of a 68.5-acre farm in Lavaca County, Texas. She alleged that she had an undivided one half interest in the farm by virtue of her common-law marriage to Joe Collora, who originally purchased the land in his name only and later attempted to transfer it to Camille Corporation, predecessor-in-title to respondent Navarro. The children of Joe and Ollie Collora intervened in the case on the side of Mrs. Collora, arguing that the transfer of land was fraudulently induced. They requested that a constructive trust be imposed on the land in their favor. At the close of the evidence, the trial court directed a verdict in favor of both Mrs. Collora and the children intervenors. Navarro appealed.

The court of civil appeals in its original opinion upheld the judgment in favor of Mrs. Collora. On rehearing, however, the court reversed the directed verdicts as to the children intervenors and Mrs. Collora and remanded both causes to the trial court. 566 S.W.2d 304. One member of the court dissented from the reversal as it related to Mrs. Collora. 566 S.W.2d 304 at 312-14. The children intervenors have not appealed from that decision and are therefore not now before this court. Only Mrs. Collora has appealed. She bases her appeal on the argument that the court of civil appeals erred in reversing the trial court because the evidence conclusively established the fact of her common-law marriage to Joe Collora, thus leaving no issue to be presented to the jury. We agree with this contention.

Ollie and Joe started dating in 1947, and by 1949 were going together on a steady basis. Ollie testified that in April 1949 she and Joe “agreed to a marriage” and moved into his mother’s home where they lived until late 1949 or early 1950. This is the period of the claimed common-law marriage. Thereafter, in her words, they “confirmed” their marriage through a civil ceremony on February 11, 1950, some ten months after the commencement of their alleged common-law marriage. The reason ascribed for delaying the ceremonial marriage was religious differences between Joe’s mother, a Catholic, and Ollie, a Protestant. Seven different witnesses, ranging from the County Agricultural Agent to next-door neighbors to relatives, testified that during the period between April 1949 and February 1950, the time period of critical inquiry, Joe and Ollie held themselves out to be married. Joe introduced Ollie as his wife, Mrs. Collora. They told people they were married. They lived together under the roof of Joe’s mother as man and wife. For more than ten years, from April 1949 (the inception of their asserted common-law marriage) through the ceremonial marriage in 1950 and up until their divorce in December 1959, they cohabited together, maintained a household, and introduced themselves to people as Mr. and Mrs. Collo-ra. All of this testimony was clear, direct, positive, and uncontradicted. Navarro called no witnesses of his own nor did he cross-examine any of Ollie’s witnesses on the matter of her common-law marriage to Joe.

In late 1948 or early 1949, while still dating and before they had “agreed to a marriage,” Joe and Ollie became interested in purchasing land under the Texas Veterans Land Board Program, Article 5421m, Texas Revised Civil Statutes Annotated, now codified as Texas Natural Resources Code Annotated, Sections 161.001-161.403. They decided on the 68.5-acre tract which is the subject matter of this suit. It was not until January 17, 1950, in the ninth month of their claimed common-law marriage, however, that Joe Collora, as purchaser, contracted with the Veterans Land Board for the purchase of this property in his name only. Joe entered into this contract during the period of the asserted common-law marriage, but one month prior to their ceremonial marriage in February.

Joe and Ollie were divorced on December 15,1959. Respondent Navarro, an attorney, represented Joe during the divorce proceedings. At the time of those proceedings the Veterans Land Board contract was still outstanding and in force and effect. The divorce decree granted Joe and Ollie each one half of the equity in the farm, but did not partition the tract of land. A little more than two years later, in January 1962, Joe attempted to convey by deed title to all of the land to the Camille Corporation. Later in the same month he assigned the Veterans Land Board contract to the Corporation. Ollie did not join in these transactions. Camille Corporation in turn attempted to convey by deed title to all of the 68.5-acre tract to Navarro. Joe Collora died testate in 1968. This suit was instituted in 1971. The decisions of the lower courts are set forth above.

The court of civil appeals applied the proper standard of review in this directed verdict case. The rule as generally stated is that the plaintiff is entitled to a directed verdict when reasonable minds can draw only one conclusion from the evidence. The task of an appellate court in such a case is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. The court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences. Henderson v. Travelers Ins. Co., 544 S.W.2d 649 (Tex.1976); Echols v. Wells, 510 S.W.2d 916 (Tex.1974). When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948).

The validity of the common-law marriage has always been recognized in Texas. 1 L. Simpkins, Texas Family Law § 2:1 (1975); Comment, Common-Law Marriage in Texas, 21 Sw.L.J. 647 (1967). It is authorized by statute. Tex.Fam.Code Ann. § 1.91. A valid common-law marriage consists of three elements: (1) an agreement presently to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963). There was abundant evidence from other sources of the second and third elements, and the court of civil appeals correctly held that they were established as a matter of law. Consequently, our concern is directed solely to proof of the first element.

The only direct evidence relating to the first element — a present agreement to be husband and wife — was Ollie’s testimony that she and Joe had “agreed to a marriage.” Her testimony was direct, positive, and uncontradicted. Navarro chose not to cross-examine her, nor did he call her as an adverse witness. There was no other direct evidence produced at trial that’ proved or disproved her testimony. Under these circumstances, the court of civil appeals held that Ollie’s testimony, standing alone, could do no more than raise a fact issue of credibility and could not support a directed verdict. With this conclusion we cannot agree.

The statement is often encountered that evidence given by a party or a witness who has an interest in the outcome of the suit cannot be the basis for an instructed verdict; it raises an issue of credibility upon which the jury must pass. 62 Tex. Jur.2d Witnesses § 374; Annot., 8 A.L.R. 796. This is the general rule, and one to which we still adhere. As with most general statements, however, this one is not without exception.

The exception to the rule was explained thusly by McDonald:

“But the testimony of an interested party or witness is not wholly without probative force. An instructed verdict based thereon favorable to the party with whom the witness is identified is proper when the testimony pertains to matters reasonably capable of exact statement, and is clear, direct, and positive, is internally devoid of inconsistencies and contradictions, and is uncontradicted either by the testimony of other witnesses or by circumstances — in short, when there is nothing to cause any reasonable suspicion as to its truth.” 3 R. McDonald, Texas Civil Practice § 11.28.6 at 249.

This exception is most appropriate when the opposing party has the means and opportunity of disproving the testimony or testing the credibility of the witness, but fails to avail himself of it. On the other hand, as we stated in Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458 (Tex.1969), “the basis for recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue.” 449 S.W.2d 458 at 467 [and cases cited].

The court of civil appeals was of the opinion that Mrs. Collora’s testimony, although clear, direct, positive, and uncontra-dicted, was of such a nature that Navarro could not readily contradict or disprove it. Consequently, it presented an issue of credibility for the jury. There are three factors present in this case which, taken together, lead us to disagree with the lower court’s holding.

First, the general rule governing the finality to be given to testimony of an interested witness is by no means an absolute one to be applied in a cut-and-dried fashion. Rather, it is flexible and its application must turn on the facts of each case. Certainly there will be cases where the credibility of an interested witness or party is so suspect that it must go to the jury, even though the testimony is uncontradicted. Then there will also be cases where the testimony of the witness is so clear that the jury should not be allowed to speculate as to his veracity. Cf. Praetorian Mutual Life Insurance Co. v. Sherman, 455 S.W.2d 201 (Tex.1970), with Great American R. Ins. Co. v. San Antonio PI. Sup. Co., 391 S.W.2d 41 (Tex.1965). Between these two extremes lies a broad spectrum of possibilities. Our courts have recognized this in the past by setting forth certain standards by which the rule and its exceptions are to be measured: Is the testimony clear, direct, and positive? Is it internally consistent? Is it contradicted or corroborated by other circumstances in the case? Is it contradicted or corroborated by other witnesses? Does the opposing party possess the means to verify or dispute the testimony? Does he have a way to test the witness’ credibility? Did he make use of those means? Obviously no one factor automatically can be dispositive in every case.

-The court of civil appeals in this case, however, has in essence resorted to an automatic test for applying the rule, that being whether or not it is possible to contradict the testimony of the interested witness. The practical effect of this holding would be to foreclose the possibility of an instructed verdict in many, if not most, common-law marriage cases. It is well-established that the agreement to marry need not be shown by direct evidence, but may be implied or inferred from evidence that establishes the elements of cohabitation and holding out to the public as husband and wife. Humphreys v. Humphreys, supra, at 178; Consolidated Underwriters v. Kelly, 15 S.W.2d 229, 230 (Tex.Com.App.1929, jdgmt adopted); Tex.Fam.Code Ann. § 1.91(b); Comment, Common Law Marriages in Texas, 13 Baylor L.Rev. 168 (1961).

In this ease there is no need to imply an agreement between Ollie and Joe, since Ollie testified to an express agreement. There is nothing in the record to suggest she was telling anything less than the truth. When all of the evidence points only to the truthfulness of the witness, a directed verdict cannot automatically be rejected solely because the witness’ testimony cannot be contradicted. In another case and under different facts, perhaps that one factor would be sufficient to defeat an instructed verdict, but in this case and under these facts, it is not.

A second factor in this case leads us to disagree with the court of civil appeals. The court placed great importance on the fact that Navarro had no way to disprove or contradict Ollie’s testimony as to the agreement. Under the present circumstances, we are inclined to agree with the dissent in the court of civil appeals that Navarro could have utilized the “time honored method for testing a witness’s credibility, . . . cross-examination . . .” 566 S.W.2d 304 at 313. Having failed to do so, his complaint loses its primary thrust.

Finally, there is a third factor which, when taken in combination with the two listed above, compels us to reverse the decision of the court of civil appeals. We have already pointed out that the agreement to be husband and wife may be inferred from proof of the other two elements of a common-law marriage. In this case there is no need to resort to inferences, inasmuch as there is direct evidence of an express agreement. We find persuasive Mrs. Collora’s argument that the proof of cohabitation and holding out to the public was corroborative evidence of her direct testimony.

“[W]hen there exists corroboration [either by another witness or surrounding circumstances] we are no longer dealing with an issue raised solely by the testimony of an interested witness.” 3 R. McDonald, Texas Civil Practice, supra, at 250.

We hasten to emphasize that the three factors considered important in this case will not automatically be dispositive of other cases. The circumstances of each case must be carefully considered, and each case must turn on its own facts.

One further problem remains to be resolved concerning the proper disposition of this appeal. Although Ollie prayed for a partition of the land, the trial court granted her “title to and possession of an undivided one-half interest” in the land. As explained in footnote three to this opinion, however, legal title to the land still rests with the Veterans Land Board, which was not made a party to this suit. The trial court thus was without power to award to Ollie a legal title to the land. At most, it had the power to adjust the equitable interests in the land among the parties to this action. It is of course true that Joe’s assignment of the contract and attempted transfer of the entire tract in 1962 to the Camille Corporation would not be effective to transfer a greater interest in the property than that which he owned. Bradley v. Bradley, 540 S.W.2d 504, 512-13 (Tex.Civ.App.—Fort Worth 1976, no writ). The Camille Corporation could have acquired no more than Joe’s undivided one half equitable interest in the farm, and it in turn could transfer no greater interest than that to Navarro. We have therefore determined that this cause must be remanded to the trial court for a determination of the equitable interests in the land owing to each party.

Mrs. Collora’s cause is severed from the cause brought by the children intervenors. As severed, the judgment of the court of civil appeals relating to Mrs. Collora is reversed and the cause is remanded to the trial court for entry of a proper judgment in accordance with this opinion.

      . In this connection, we would note that Navarro has not filed any written briefs in this court.

      . It should be noted that whatever was the nature of those differences, it was not sufficient to prevent Ollie and Joe from residing in his mother’s home without benefit of a ceremonial marriage.

      . Under the provisions of the Veterans Land Board Program, Joe signed a contract of sale and purchase, with the Board as seller and Joe as buyer. It provided for a purchase price of $7,000, with $350 as a down payment, the remainder to be paid in six-month installments over a forty-year period at an interest rate of three percent per year. The contract was signed on January 17, 1950. The Board purchased the land by deed dated January 23, 1950. There is no evidence that the Board has ever executed and delivered a deed to the land to anyone. It must therefore be assumed that the Board still retains legal title to the land. Based on this assumption, Ollie Collora has at best an equitable interest in the land. The 1959 divorce decree granted Ollie and Joe each an undivided one half equitable interest in the land, with Joe having as separate property an equity interest of $350 (representing the down payment). It is also noted that all installment payments since 1962 have been paid either by the Camille Corporation or Navarro.

      . Since this case does involve direct evidence of an express agreement, we do not consider or pass on the propriety of a directed verdict when the agreement must be implied from proof of the other two elements. But cf. Prudential Insurance Company of America v. Krayer, 366 S.W.2d 779, 780 (Tex.1963).

      . Cross-examination has long been regarded as the foremost weapon in the attorney’s selective arsenal of trial tactics for the purpose of ascertaining the truth. A noted criminal prosecutor has written that cross-examination is the principal tool “for separating truth from falsehood, actual knowledge from hearsay, fact from imagination and opinion; it is the best technique, as one legal scholar wrote, ‘for reducing exaggerated statements to their true dimensions.’ ” V. Bugliosi, Till Death Us Do Part at 241 (1978). Professor Wigmore has declared it “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence § 1367 at 32 (Chadbourn rev. 1974).

      . Neither party has addressed this defect in the judgment at any stage in the appeal of this case. Indeed, the parties appear to have tried the case on the assumption that they owned legal title. The court of civil appeals noted the problem, 566 S.W.2d 304 at 307, but did not pass upon it in light of its decision to remand the case for a new trial.


source: Caselaw Access Project

author: DOUGLAS, Judge. ODOM, Judge,

license: Public Domain

text:
    Sheron Lenore CANNON, Appellant, v. The STATE of Texas, Appellee.
    No. 55343.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 15, 1978.
    Rehearing Denied Dec. 13, 1978.

      Jim Hooper, Texarkana, for appellant.
    Charles G. Hall, Asst. Dist. Atty., Texar-kana, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for aggravated robbery. A plea of guilty was entered before the jury. The punishment was assessed at five years. The sufficiency of the evidence is not challenged.

Bonnie Ward testified that she was operating the Ward’s Grocery Store in Texar-kana on the 16th of December, 1975, and that appellant came to the store, waved a pistol and said, “I need your money”, and she wanted only the bills; that the appellant took $75.00.

Homer McCombs testified that he was an officer at Texarkana; that he received a call that there had been a robbery at Ward’s Grocery; shortly thereafter he saw a car fitting the description and followed it and the driver sped away. He turned on his lights and the automobile accelerated. He stopped the car and, as appellant got out, she brushed her leg against a brown paper bag. She said, “I’m the one that robbed the store” and that if the car had started sooner he would never have caught her. The officer found $75.00 in the paper bag, a ski mask and a shirt which fit the description of the one that Mrs. Ward gave as the one the robber was wearing.

The appellant bought the pistol some four days before the robbery.

She testified on direct examination that she committed the robbery; that she was in need of money. The State introduced evidence that she had paid an attorney toward getting a divorce and that she had spent some $20.00 to buy the gun some time before the robbery.

She testified on direct examination she had never been in trouble before and then she admitted on cross-examination that she had been picked up for shoplifting at a service base in El Paso and had been barred from the base.

Appellant contends that reversible error was committed when she was asked if it was not the fact that at the time she was arrested she had marihuana in her possession. She answered, “Yes.” She testified over objection that she really did not know where the marihuana was but that it was not in her purse.

Later Officer Homer McCombs testified that he found marihuana in her possession. This was without objection. Then an objection not relevant here was made. After this, appellant, on voir dire examination, questioned Officer McCombs about his ability to identify marihuana; counsel then objected:

“Your Honor, based on the Officer’s testimony I would object to him testifying to any substance he may have found in this car or on her possession, or anywhere else, if he’s going to testify it’s marijuana.”

He then testified it was found in her purse. The officer was asked, “And, in your opinion, was this marihuana?” Counsel then objected, “Again, Your Honor, we would renew our objection on the same grounds previously stated.” The objection was overruled.

The tenor of the voir dire examination was concerning the officer’s qualification to identify marihuana. Nothing was mentioned about an extraneous offense. Absent an objection, nothing is presented for review. This Court has held that a ground of error different from the objection raised at the trial will not be considered. McIlveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977); Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976); Moore v. State, 480 S.W.2d 728 (Tex.Cr.App.1972). See Texas Digest, Criminal Law 1043(3), for many other cases holding the same thing.

Thomas v. State, 572 S.W.2d 507 (1976, motion for rehearing, October 18,1978), did not change the rule that where testimony comes from another source the error is waived or made harmless. See Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978), a death penalty case where this Court held that it was harmless error where testimony was erroneously admitted and the testimony from another witness to the same effect was admitted without objection. See also Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976).

We perceive no error in the cross-examination of appellant about the trouble she had in El Paso after she had testified on direct that she had never been in trouble before.

No reversible error has been shown. The judgment is affirmed.

ODOM, Judge,

concurring.

While I concur that error was waived when appellant failed to object to officer McCombs’ testimony, I dissent to the majority’s declaration on the facts of this case:

“Absent an objection, nothing is presented for review. This Court has held that a ground of error different from the objection raised at trial will not be considered.”

Actually, this is what the record reflects when the extraneous offense was first brought up:

“Q. Mrs. Cannon, isn’t it also a fact that, at the time you were arrested and your possessions were taken at the Police Station, that you had marijuana in your possession?
“A. Yes, sir.
“[Defense counsel]: Your Honor, I’m going to object to that. That’s an attempt by the State to try to show some extraneous offense, and we would object strenuously to that.
“THE COURT: Overruled.”

Thus, appellant clearly made an objection on the same ground urged on appeal and secured an adverse ruling on it. At that point in the trial the issue was preserved for appellate review. Only when McCombs later testified to the same facts without the same objection being reurged was the error waived.

Of course, had the first objection to the extraneous offense been made outside the presence of the jury, the issue would not have been waived. Art. 40.09(6)(d)(3), V.A. C.C.P.; Harryman v. State, Tex.Cr.App., 522 S.W.2d 512. That legislatively established rule makes exceedingly good common sense, but until the legislature expands that rule so that an objection once adversely ruled upon before the jury need not be reurged at each subsequent proof of the same facts, or until this Court is willing to reconsider the waiver doctrine applied in this case, it will be the duty of counsel either to secure an adverse ruling out of the presence of the jury or to reurge his objection at every point that the same matter is presented to the jury. Appellant’s counsel in this case having failed to reurge his objection to the extraneous offense at the second time it was proven, and having failed to secure his initial ruling outside the presence of the jury (Art. 40.09(6)(d)(3), supra), I concur in the affirmance on the grounds that such conduct waived the previously obtained adverse ruling.

ROBERTS and PHILLIPS, JJ., join this concurrence.


author: ODOM, Judge. PHILLIPS, Judge,

text:
    Johnny DAVENPORT, Appellant, v. The STATE of Texas, Appellee.
    No. 56013.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 15, 1978.
    Rehearing Denied Dec. 20,1978.

      John Langford, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation. On January 19, 1971, appellant pled guilty to the offense of possession of a narcotic drug and his punishment was assessed at six years in the Texas Department of Corrections. Imposition of sentence was suspended and probation was granted, subject to certain terms and conditions. Among the conditions of appellant’s probation were that he commit no offense against the law, that he avoid injurious or vicious habits, and that he drink no alcoholic beverages and enter no place where such beverages are sold.

On September 3, 1976, the State filed a motion to revoke adult probation alleging:

“[Ojn the thirteenth day of August, 1976, in the County of El Paso and State of Texas, the said defendant, Johnny Davenport, did then and there unlawfully, intentionally and knowingly drive and operate a motor vehicle, to-wit: 1970 Ford Pinto upon a public road and highway in said State and County, while the said Johnny Davenport was intoxicated and under the influence of intoxicating liquor.”

A hearing was held on October 21, 1976, and the trial court denied the State’s motion to revoke. Subsequent thereto, on November 1, 1976, the State filed another motion to revoke adult probation alleging as grounds the same factual basis that was alleged in the September 3 motion.

On December 22, 1976, after having heard the second motion, the court found the State’s allegations true and revoked appellant’s probation.

Double Jeopardy Issue

The first contention presented by the appellant is that Article I, Sec. 14, of the Texas Constitution, and the United States Constitution’s Fifth Amendment guarantee against double jeopardy applicable to the states through the Due Process Clause of the Fourteenth Amendment prohibit the State from twice subjecting the appellant to a revocation of probation proceeding based upon the same alleged probationary violation and fact situation.

At a revocation of probation proceeding, a defendant need not be afforded the full range of constitutional and statutory protections available at a criminal trial. Gag-non v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). At such a proceeding, guilt or innocence is not at issue, and the trial court is not concerned with determining the defendant’s original criminal culpability. “The question at a revocation hearing is whether the appellant broke the contract he made with the court after the determination of his guilt.” Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, 469. Also of significance is the fact that “. . . the result of such a hearing to revoke is not a conviction but a finding upon which the trial court might exercise its discretion by revoking or continuing probation.” Hill v. State, Tex.Cr.App., 480 S.W.2d 200, cert, denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667 (emphasis added.) “A probation revocation hearing is not ... a criminal prosecution.” Hill v. State, supra. It has been denominated as “administrative in nature.” Hill v. State, supra.

In interpreting the Double Jeopardy Clause embodied in Art. I, Sec. 14, Tex. Const., this Court held in Johnson v. State, 73 Tex.Cr.R. 133,164 S.W. 833, “A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment or information . sufficient in form and substance to sustain a conviction, and a jury has been . impaneled and sworn to try the case,” at 834. See Thompson v. State, Tex.Cr.App., 527 S.W.2d 888. We are thus constrained to hold that the double jeopardy protections of both the Texas and Federal Constitutions do not apply to a proceeding wherein the result is deemed to be neither a conviction nor acquittal, see Barber v. State, Tex.Cr. App., 486 S.W.2d 352; a proceeding that is not considered to be a trial, “as that term is used and contemplated by the Constitution in reference to criminal cases . . .,” Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774, 776; Campbell v. State, Tex.Cr. App., 456 S.W.2d 918; a proceeding which is not considered to be a criminal prosecution, Hill v. State, supra, and is considered to be only “administrative in nature.” Hill v. State, supra.

In Bass v. State, Tex.Cr.App., 501 S.W.2d 643, cert, denied 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 873, we rejected the defendant’s contention that the revocation of his probation based “on the same evidence heard by the same court in denying a prior motion to revoke” violated double jeopardy protection. In that case, the testimony adduced at the first hearing was introduced again at a subsequent hearing to revoke, along with the information, judgment, sentence and mandate of affirmance of a conviction for misdemeanor embezzlement. The same offense was the subject of both of the State’s motions to revoke probation. In finding no double jeopardy violations, we cited Settles v. State, Tex.Cr.App., 403 S.W.2d 417, and held, “The allegation in a motion to revoke probation that probationer has committed a particular offense when the motion is heard by the court does not constitute jeopardy and will not bar a subsequent prosecution for such offense.” Bass, at 644.

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court held, “[T]he risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not essentially criminal.” Id., at 528, 95 S.Ct. at 1785.

In light of the nature of the probation revocation proceeding, we hold that the double jeopardy protection of the Texas and United States Constitutions is not applicable.

Res Judicata Issue

The appellant next contends that the trial court abused its discretion in refusing to dismiss the State’s second motion to revoke probation because the prosecution of the second motion was barred by the doctrine of res judicata. Appellant contends that the doctrine of res judicata applies even where a plea of double jeopardy would not lie, and further argues that public policy considerations would be violated if the State were allowed to relitigate after it has been once litigated and the issues finally disposed of.

“[R]es judicata is the doctrine that an existing final judgment or decree, rendered on the merits, without fraud or collusion, by a court of competent jurisdiction, on a matter within its jurisdiction is conclusive of the rights of the parties or their privies in all other actions or suits in the same court, or in any other judicial tribunal of concurrent jurisdiction, on points and matters in issue in the first suit.” Goldberg v. Goldberg, 425 S.W.2d 830, 831 (Tex.Civ.App., Ft. Worth 1968, no writ history). See also McGuire v. Commercial Union Insurance Co., 431 S.W.2d 347 (Tex.Sup.1968). Parr v. Parr, 543 S.W.2d 433 (Tex.Civ.App., Corpus Christi, 1976, no writ history).

It has also been held, however, that res judicata does not apply to administrative decision-making. See Bryant v. L. H. Moore Canning Co., 509 S.W.2d 432 (Tex. Civ.App. — Corpus Christi, 1974), cert, denied 419 U.S. 945, 95 S.Ct. 79, 42 L.Ed.2d 74; Railroad Commission v. Phillips, 364 S.W.2d 408 (Tex.Civ.App. — Austin, 1963); Killingsworth v. Broyles, 300 S.W.2d 164 (Tex.Civ.App. — Austin, 1957).

In Hill v. State, supra, it was held that a probation revocation hearing is administrative in nature. Under Texas statutory law, this nature of the proceeding is apparent. Article 42.12, V.A.C.C.P., is the Adult Probation Law. In the opening sentence of the first section of that Act it is stated:

“It is the purpose of this Article to place wholly within the State courts of appropriate jurisdiction the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of probation, and the supervision of probationers, in consonance with the powers assigned to the judicial branch of this government by the Constitution of Texas.”

The administrative supervision of the probationer by the court is also stated in Sec. 3 of the Act:

“Any such person placed on probation, whether in a trial by jury or before the court, shall be under the supervision of such court.”

We hold the supervision of probationers is an administrative function of the courts and not a judicial function, and that the revocation hearing and the decision to revoke probation or not is administrative in nature. We therefore hold that the doctrine of res judicata does not apply. See and cf. Bass v. State, supra; Wester v. State, Tex.Cr.App., 542 S.W.2d 403; Sap-pington v. State, Tex.Cr.App., 508 S.W.2d 840; Traylor v. State, Tex.Cr.App., 561 S.W.2d 492. The contention is overruled.

In his last contention appellant argues the evidence is insufficient to show he was intoxicated as alleged in the motion to revoke. Officer Lisowski, the arresting officer, testified that he stopped appellant because the car he was driving was moving at a rapid speed and almost collided with two cars as it made a right hand turn. When appellant stepped from the car he was very unsure of his footing and almost fell. During his conversation with the officer he came very close, and had a moderate odor of alcoholic beverage at two inches distance. The officer stated that in his opinion appellant had been drinking alcoholic beverages and was intoxicated. He also testified that a person may have only a moderate odor of alcohol and still be intoxicated. The contention is without merit.

We find no abuse of discretion and affirm the order revoking probation.

PHILLIPS, Judge,

dissenting.

The majority concludes that the State’s successful second effort to revoke appellant’s probation based on the same alleged offense committed by the probationer while on probation does not violate the double jeopardy clauses of the Texas and United States Constitutions. See U. S. Constitution, Fifth Amendment; Texas Constitution, Article I, Section 14. They also conclude that the collateral civil doctrine of res judicata does not apply to appellant’s situation.

I.

With respect to the majority’s disposition of the first issue, heavy concentration is placed upon previous characterizations of the revocation of probation proceeding. It has variously been interpreted as a remedy for a contractual breach by the probationer or as an administrative proceeding in nature. Majority opinion, infra at 75; Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, 469; Hill v. State, Tex.Cr.App., 480 S.W.2d 200. Reliance is also had on the authority of Bass v. State, Tex.Cr.App., 501 S.W.2d 643, a case that can be considered “on all fours.” Nevertheless, as will be explained below, I believe the authority of Bass v. State, supra, and the majority’s disposition of appellant’s ground of error are in error.

The first order of analysis under a claim of a double jeopardy violation is to eschew those labels that serve to obfuscate more than clarify. This is clearly the teaching of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). The Court in Breed was concerned with the question of whether an adjudicatory proceeding against a juvenile under the California Welfare and Institutions Code in which testimony was adduced before the juvenile court concerning the facts of the offense allegedly committed by the alleged juvenile delinquent constituted jeopardy insofar as it would operate as a bar against any subsequent prosecution of the juvenile as an adult. In Breed, after the required adjudicatory hearing, the juvenile was found to be delinquent as defined under the California Welfare and Institutions Code, but not amenable to the rehabilitation programs available for juvenile offenders. The juvenile was then transferred to the adult system for prosecution as an adult felon. Of significance to the conclusion that the same doctrine should apply to this State’s revocation of probation proceedings is the fact that under Section 701 of the California Welfare and Institutions Code the adjudicatory hearing is conducted before the court, without a jury, and the burden of proof shouldered by the State in establishing that the juvenile is delinquent is a preponderance of the evidence. The same burden of proof applies in this State’s probation revocation proceedings. Scamar-do v. State, 517 S.W.2d 293. Furthermore, when the basis for the State’s motion to revoke a probation is based upon the alleged commission of an offense against the laws of this State, the State is required to prove each element of the offense allegedly committed by the' probationer before revocation orders can be entered.' Battle v. State, 571 S.W.2d 20 (No. 57,806, 1978); Holder v. State, 571 S.W.2d 885 (1978); Jones v. State, Tex.Cr.App., 560 S.W.2d 673; Wygal v. State, Tex.Cr.App., 555 S.W.2d 465.

The Court in Breed wrote:

“We believe it is simply too late in the day to conclude, as did the District Court in this case, that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include the stigma inherent in such a determination and the deprivation of liberty for many years.” Breed v. Jones, 421 U.S. at 529, 95 S.Ct. at 1785.
“Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution.” Id., U.S. at 528, 95 S.Ct. at 1785.
“As we have observed, the risk to which the term jeopardy refers is that traditionally associated with ‘actions intended to authorize criminal punishment to vindicate public justice.’ [Citations omitted] Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens— psychological, physical, and financial — on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once ‘for the same offense.’ [Citations omitted].” Id., U.S. at 529-530, 95 S.Ct. at 1786.

In concluding their analysis of the California juvenile adjudicatory process under the double jeopardy doctrine, the Supreme Court wrote:

“Thus, in terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution. For that reason, it engenders elements of ‘anxiety and insecurity’ in a juvenile, and imposes a ‘heavy personal strain.’ ” Id., U.S. at 530-531, 95 S.Ct. at 1786.

Turning to this State’s probation revocation proceeding, it is evident that one “risk” a probationer is subjected to upon the filing of a motion to revoke probation and a hearing on that motion is the revocation of the probation and the immediate imposition of a penalty previously assessed. Regardless of what label we attach to the proceeding, the consequence is the same. The probationer faces the “risk” of losing his liberty.

Notwithstanding the greater resources and power available to the State, the burdens imposed upon them in order to effect a revocation of one’s probation are much less than in a traditional criminal prosecution. As was already noted, the burden of proof is only by a preponderance of evidence instead of beyond a reasonable doubt. Further, accomplice witnesses need not be corroborated. Howery v. State, Tex.Cr.App., 528 S.W.2d 230. Confessions of the probationer need not be corroborated. Bush v. State, Tex.Cr.App., 506 S.W.2d 603. The motion to revoke probation need not be as precise as an indictment or information, but need only give fair notice to the probationer of the condition of probation allegedly violated. Figgins v. State, Tex.Cr.App., 528 S.W.2d 261. In fact, should the proof adduced during the proceedings vary from the motion to revoke probation on file, the trial court is empowered to permit the State to make an amendment to its pleadings. Banks v. State, Tex.Cr.App., 491 S.W.2d 417; Cabrera v. State, Tex.Cr.App., 494 S.W.2d 177; Spencer v. State, Tex.Cr.App., 503 S.W.2d 557.

Yet the anxiety, insecurity, strain, and potential of imprisonment are real “risks” faced by the probationer brought before the court on a motion to revoke probation filed by the State. The stigma from a revocation of probation is real, especially when the revokee is subsequently considered for parole.

It occurs to me that in light of this overwhelming advantage possessed by the State and the “risks” facing the probationer, the doctrine of double jeopardy should apply to a subsequent revocation of probation proceeding in which the basis for the State’s motion to revoke is the same offense previously alleged for revocation purposes, but which the State failed to prove to the satisfaction of the trial court with sufficient evidence. Under these narrow circumstances, appellant should be entitled to reversal.

In the instant case, an order was signed and entered by the trial judge on October 27, 1976, following a hearing on the State’s September 3, 1976, motion to revoke probation. That order reads, in . pertinent part:

“. . . The Court proceeded to hear evidence on said motion and after hearing said evidence and the arguments of counsel and considering the same and the law, the Court is of the opinion and so holds that the evidence is insufficient inasmuch as there is no evidence to show that the defendant operated a motor vehicle on a public road and highway in the State of Texas and County of El Paso.” (Emphasis added.)

In this rare situation where the trial court expressly finds that the evidence is insufficient, the doctrine of double jeopardy should certainly attach to any subsequent efforts to revoke the probationer’s condition on the same offense. See Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

As stated by the Supreme Court in Burks v. U. S., supra, “the purposes of the Clause [double jeopardy] would be negated were we to afford the Government an opportunity for the proverbial ‘second bite at the apple.’” 437 U.S. at 17, 98 S.Ct. at 2150.

The majority relies on Bass v. State, supra, a terse opinion which in turn relied on Settles v. State, Tex.Cr.App., 403 S.W.2d 417, and Barber v. State, Tex.Cr.App., 486 S.W.2d 352. The reliance of this Court in Bass on the inapposite cases of Settles and Barber should be reconsidered. The Bass case represented a situation similar to the instant matter. A motion to revoke probation was heard and denied in February of 1970. The precise basis for the denial of the State’s motion to revoke is not explained. Nevertheless, two years later a hearing was conducted on a motion to revoke probation alleging the same offense that was considered in the February 1970 hearing. At the subsequent hearing appellant’s probation was revoked after the same evidence was introduced as in the first hearing, as well as the information, judgment, sentence, and mandate of affirmance of appellant’s conviction for misdemeanor embezzlement. This Court merely concluded that no abuse of discretion was shown and relied on the authorities referred to above. An analysis of the authorities relied upon by this Court in Bass shows that different procedural contexts were involved in those cases.

In Settles the appellant attempted to invoke the prior unsuccessful effort of the State to revoke his probation as a bar to his subsequent prosecution on the substantive offense of aggravated assault. The first risk faced by appellant was the revocation of his probation and the imposition of a sentence previously suspended. In the latter proceeding brought up to this Court on direct appeal, the risk was the assessment of a penalty for the actual offense involved.

Barber v. State, supra, involved the appellant’s contention that the trial court abused its discretion in permitting the State to amend its motion to revoke probation during the hearing on the original motion to revoke probation. Appellant made the argument that such action constituted double jeopardy, thus an abuse of discretion. This Court concluded that such a contention was without merit. I would submit that the decision in Barber was correct, but totally inapposite to the issues raised in Bass and the instant case. I would conclude, therefore, that Bass should be overruled.

This case does not involve collateral questions that some might fear would be answered or implicated in the holding I propose. First, it does not deal with the State pursuing a motion to revoke probation after the probationer was acquitted on the substantive offense alleged in the motion to revoke probation as a violation of the probationary conditions. Further, it does not address the question raised in Settles, on which some doubt might be cast, of instituting substantive criminal prosecutions against probationers after the State has attempted to revoke their probation on the basis of the same offense, but which the trial court concluded were insufficiently proven by the State. We leave those questions for another day.

The majority decision quotes from Breed v. Jones, supra, that “[T]he risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not essentially criminal.” A review of the cases cited by the Supreme Court in support of that phrase reflects that the “risks” involved in the various cases were the forfeiture of smuggled goods [One Lot Emerald Cut Stones v. U. S., 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972)], the collection of double damages, plus forfeiture of actual damages, pursuant to “informer statutes” because of the collusive bidding on government work projects [Í7. S. ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943)], and the collection of a 50 percent penalty calculated on the deficiency in taxes paid to the Internal Revenue Service [Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938)]. None of the eases involved the type of “risk” faced by either a criminal defendant or probationer facing a motion to revoke probation. However, there is one quotation from Helvering v. Mitchell, supra, which if interpreted literally and out of context would present a disquieting prospect for my position. That is:

“Remedial sanctions may be of varying types. One which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted.” Id., U.S. 399, 58 S.Ct. at 633. However, the cases on which that proposition was based involved alien deportations and disbarments. Neither of those consequences involves the loss of liberty traditionally associated with criminal prosecutions or “criminal punishment to vindicate public justice.”

Finally, an analysis that holds true to the teachings of Breed v. Jones, supra, needs to answer the question raised by the following excerpt:

“If there is to be an exception to that protection [of the double jeopardy clause] in the context of the juvenile-court system, it must be justified by interests of society, reflected in that unique institution, or of juveniles themselves, of sufficient substance to render tolerable the costs and burdens, noted earlier, which the exception will entail in individual cases.”

In Breed the Court was confronted with the contention that to apply the protections of the double jeopardy clause to the proceedings at issue would deprive the juvenile court system of California of the flexibility needed to deal with youthful offenders. This contention was rejected by the Supreme Court since from a review of procedures in other states it was clear that a waiver of jurisdiction and transfer proceeding could be accomplished without a full adjudication of the facts of the offense as was done under the California procedures.

Similarly, the application of the protections of the double jeopardy clause to probationers whom the State seeks to imprison after having failed to prove their allegations on their first try will not disrupt any legitimate State interests. The only burden on the State created by the application of this doctrine is that they do the job right the first time. The people of this State deserve no less and the prosecutors of this State should expect no more.

Therefore, I would hold that in a case where the trial court expressly finds that the evidence was insufficient to sustain the State’s motion to revoke probation based on an allegation that the probationer committed an offense in violation of his probationary conditions, the double jeopardy clause of the United States and Texas Constitutions protects that probationer from any subsequent efforts by the State to revoke his probation based on the same alleged offense.

II.

Again, in confronting the contention of appellant that, in the alternative, the res judicata doctrine applies to the situation described above, the majority shields this State’s probation revocation proceedings behind labels of convenience. By considering the matter administrative in nature and not judicial, the majority concludes that the doctrine of res judicata does not apply. Should the foregoing analysis and discussion which concludes that the double jeopardy clause should attach to such proceedings not be accepted, I would submit that in the alternative the doctrine of res judicata should apply.

The doctrine of res judicata is based on public policy:

“. . . Once the claims of the parties have been determined by the ultimate tribunal provided by law for their adjudication, the matter should be concluded. It is recognized that there must be an end of litigation somewhere, and that when a case has once been tried and the issues duly disposed of, the litigation should be ended, unless some proper ground is shown for vacation or modification of the judgment by a higher tribunal or a court of equity, since the parties have had their day in court and the judgment of the court, which is presumably correct, impartial, and honest, should be conclusive on them.” 34 Tex.Jur.2d, Judgments, Sec. 451, pp. 492-495.

Under the facts as presented in the case at bar, and in the event the double jeopardy doctrine is considered inapplicable, I perceive no reason why the doctrine of res judicata should not bar the State’s attempt to relitigate the issue previously decided in appellant’s favor. Why should appellant be required to defend himself again in a revocation of probation proceeding based upon the same alleged probationary violation previously adjudicated adversely to the State? We see no reason in law or logic why the State should have an opportunity to take a “second bite out of the apple.”

The State argues that the argument does not apply here because one of the requisites of res judicata is the existence of a final judgment and the order entered after a probation revocation hearing is not a judgment as defined in Article 42.01, V.A.C.C.P. While such an order is not a judgment of conviction as defined in Article 42.01, supra, it is nevertheless a final judgment. It is a judgment because it rules on the issues of fact and law litigated before it in the hearing, and either grants or denies the revocation sought by the State. Article 42.01, supra, by its very terms cannot apply to revocation proceedings. The finality of the trial court’s order of either revoking probation or continuing the defendant on probation in respect to the alleged violations cannot be questioned. In Wester v. State, 542 S.W.2d 403, the trial court found the defendant had violated his probation, but in its discretion continued him on probation. On a subsequent arrest the trial court revoked probation on the previously found violation. Wester held the trial court could not go behind the order continuing the defendant on probation even though adequate grounds for revocation had previously been shown. “To hold otherwise would violate due process, due course of the law of the land and fundamental fairness.” Id. at 406. Clearly, after the trial judge had continued the defendant therein on probation, and had made his ruling denying the State’s motion to revoke, that order was final. See and compare Wester v. State, supra, with Sap-pington v. State, Tex.Cr.App., 508 S.W.2d 840, and Traylor v. State, Tex.Cr.App., 561 S.W.2d 492.

Mr. Justice Holmes, speaking for the Supreme Court in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), expressed the view:

“Upon the merits the proposition of the government is that the doctrine of res judicata does not exist for criminal cases except in the modified form of the 5th Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb; . * * * * * *

The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice ... in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time.” Although res judicata in principle and theory springs from the same fundamental principle of justice as does the double jeopardy clause, it can be applied in cases where a plea of former acquittal or former conviction could not be entertained, and where double jeopardy protections do not apply. See 9 A.L.R.3rd 203 and cases cited therein.

It cannot be doubted that due process applied to probation revocation hearings. Spencer v. State, Tex.Cr.App., 503 S.W.2d 557; Wester v. State, supra. To hold that the State could again litigate the same issue that had once before been fairly and finally adjudicated would thwart basic concepts of fundamental fairness. Cf. Wester v. State, supra. Certainly the benefit accruing to the State by allowing it to file another motion to revoke probation alleging the same facts on the same alleged probationary violation that had been adjudicated adversely to it previously after a full and fair hearing is outweighed by the burden such a practice would place on the probationer by requiring him to again defend against the same charge. Where would a rule allowing relitigation by the State stop? After two unsuccessful bites at the apple? After a dozen? The line must be drawn at one day in court. Cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 40 L.Ed.2d 1067 (1976). The State had already had its day in court on the facts reurged in its second motion to revoke probation. The trial court in the first proceeding made an express finding that the evidence was insufficient to support a revocation order.

In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, the Supreme Court stated:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for the alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Id., U.S. at 187-188, 78 S.Ct. at 223.

I would therefore conclude that, in the alternative, the doctrine of res judicata operates as an equal bar against the second effort of the State to revoke appellant’s probation on the same offense on which they previously failed to muster sufficient evidence.

For the foregoing reasons I respectfully dissent.

ONION, P. J., and ROBERTS, J., join in this dissent.

      . “On the 13th day of August, 1976, in the County of El Paso and State of Texas, the said defendant, Johnny Davenport, did then and there unlawfully, drive an automobile, to-wit: a Ford Pinto upon a street within the limits of an incorporated city, to-wit: El Paso, Texas, while the said Johnny Davenport was intoxicated.”

      . This case does not present the same factual situation as was discussed in Banks v. State, Tex.Cr.App„ 503 S.W.2d 582.

      . “No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”


author: PHILLIPS, Judge.

text:
    Melvin LAW, Appellant, v. The STATE of Texas, Appellee.
    No. 55301.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 22, 1978.
    Rehearing En Banc Denied Dec. 20,1078.

      Jimmy Phillips, Jr., Angleton, for appellant.
    Ogden Bass, Dist. Atty. and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of carrying a handgun. Punishment was assessed at 30 days’ imprisonment.

At 12:10 a. m. on March 6, 1976, Rheda Simmons, the principal witness in the case, walked into the Lake Jackson Police Department obviously shaken and, after talking to the officer in charge, signed the following written statement:

“I was walking down the street going to this girl’s house. Melvin Law got out of his car and put the pistol up to my face and said I have two (2) seconds to get away or he was going to blow my head off, so I ran to the Lake Jackson Police station. I was on Coral at the time this happened.
“I can read and write the English language and I have read the above statement and I find it to be true and correct to the best of my knowledge and belief.”

Immediately after receiving this statement from Ms. Simmons, the Lake Jackson police put out a radio broadcast that one Melvin Law was carrying a gun located under the front seat of the car, had threatened someone with it and that he was driving a brown Pontiac Firebird.

Five to seven minutes after hearing the broadcast, and approximately within an hour of the alleged incident, Officer Pan-coast of the Clute Police Department arrested appellant in Clute, approximately six miles from where the alleged incident occurred. Officer Pancoast testified that he and another officer approached the vehicle and asked appellant to step out of the car. A search beneath the appellant’s driver’s seat revealed a loaded .32 caliber pistol. A further search of the car’s console revealed a box of .32 caliber shells.

At the trial Rheda Simmons testified that the appellant was sitting in his car. She went over, saw another girl with him, and started arguing with him. He then told her he wanted her to leave. She then ran off and told the police that the appellant had a gun, but she testified under oath that she never saw the gun. Her signed statement quoted above was then introduced for impeachment purposes only.

In his first ground of error appellant alleges that the information and complaint were insufficient to give the appellant fair notice of the charges against him because they failed to identify the precise location of the alleged offense. This Court has held that it is only necessary to allege the name of the county as the place where the offense was committed, (1) if the offense may be committed anywhere within the county, (2) the place where committed is not an element of the offense, and (3) the court in which the offense is tried has county-wide jurisdiction. Hodge v. State, Tex.Cr.App., 527 S.W.2d 289. Those criteria have been met in the instant case. Appellant’s first ground of error is overruled.

Appellant in his second and third grounds of error challenges the sufficiency of the evidence. The State relied upon the gun found at the time of the arrest for sufficiency purposes. Appellant claims that since there was no showing that appellant owned the car the evidence was insufficient to support a conviction. We disagree. Although the record does not show registration of title, it reflects that the appellant was observed in the exclusive possession of the car numerous times before the time of the arrest. The appellant was driving the car at the time of the arrest. The arresting officer found a gun under the appellant’s driver’s seat, conveniently accessible to the appellant. We conclude that these facts taken together were sufficient to show possession of a handgun by the appellant. Hazel v. State, Tex.Cr.App., 534 S.W.2d 698; Curry v. State, Tex.Cr.App., 465 S.W.2d 154. Grounds of error two and three are overruled.

Ground of error four alleges that the trial court erred in admitting the gun and bullets in evidence since they were the fruits of a warrantless arrest made without probable cause.

The information given by Simmons to Officer Gore alleged that the felony of aggravated assault had occurred and that the appellant fled the scene of the offense in his vehicle. The description of the appellant and the appellant’s car was given over the police radio, which resulted in the arrest of appellant a short time later, six miles from the scene of the alleged threat. Police broadcasts, based on probable cause, reporting a felony and a description of the suspect satisfy the requirements for a warrantless arrest under Article 14.04, V.A.C.C.P. Guzman v. State, Tex.Cr.App., 521 S.W.2d 267; Myre v. State, Tex.Cr. App., 545 S.W.2d 820. The test as to probable cause is the information known to the officer who requests another officer to effect an arrest. McDuff v. State, Tex.Cr.App., 431 S.W.2d 547; Marsh v. U. S., 344 F.2d 317 (5th Cir.). The information known to Officer Gore was sufficient probable cause to arrest the appellant. Appellant’s fourth ground of error is overruled.

Appellant’s final ground of error argues that the gun and bullets were the product of a search excessive in scope, since the appellant had stepped out of his car when the search occurred. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), declared that the permissible scope under the Fourth Amendment of a search incident to arrest is “the arrestee’s person and the area ‘within his immediate control’ . . construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. The record in the instant case reveals that the appellant was asked by Officer Pancoast to step out of his car. and he was being escorted by the other officer on duty toward the rear of the car, Officer Pancoast searched under the front seat and found the gun. Although the record is not perfectly clear, it appears this area was still within the appellant’s reach or was within the area in which he might have leaped or lunged for the weapon. It was, in our opinion, within the permissible scope of a search incident to a valid arrest.

Further, if there is probable cause that a motor vehicle contains contraband or the instrumentalities of a crime as there was here, a valid search is not limited to Chimel’s, supra, “area of immediate control” scope, but embraces the mobile vehicle itself, regardless of the distance of the accused from the vehicle. The factual situation confronting the officers in the instant case established that exigent circumstances existed requiring the officers to proceed to arrest appellant and search the car for weapons without waiting for a warrant. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. U. S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Hooper v. State, Tex.Cr.App., 516 S.W.2d 941; Borner v. State, Tex.Cr.App., 521 S.W.2d 852.

The court did not err in admitting the evidence seized as a result of the search of appellant’s car. Appellant’s fifth ground of error is overruled.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Cloice William STONE, Appellant, v. The STATE of Texas, Appellee.
    No. 55471.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 22, 1978.
    Rehearing En Banc Denied Dec. 20,1978.

      Robert T. Baskett, court appointed, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and Davis C. Schick, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the sexual abuse of a child. V.T.C.A. Penal Code, Sec. 21.10. Punishment was assessed by the jury at 18 years and a fine of $10,-000.

The record reflects that the appellant and his wife had hired their next-door neighbor to baby-sit with their children while both were at work. The children would either be taken to the neighbor’s home in the morning or the neighbor would go to the appellant’s home and return to her residence with the children. The youngest child, an infant of six months, required diapers and other supplies for her care. These supplies were stored in the appellant’s residence. The baby-sitter stated that she would sometimes go there during the day to get additional supplies, and that both the appellant and his wife knew of and approved of this arrangement.

Neither the appellant nor his wife testified at his trial. At a hearing on appellant’s motion to suppress, the wife testified that these supplies were usually taken to the baby-sitter with the children, but did not deny that the arrangement set out above existed. Both agreed that permission had been given for the baby-sitter to enter the house to get the items necessary for the infant’s care.

On the date of the appellant s arrest, the baby-sitter had returned to the appellant’s residence to get soap for the infant’s bath. While in a bedroom, the baby-sitter saw a stack of photographs on a dresser and looked through them. The top photograph was of the appellant’s infant child. Four of the other photographs in the stack were of the appellant. Two pictures showed the victim performing oral sex on him, one depicted the same little girl sitting on his lap while both were naked from the waist down, and the last picture was of the appellant standing naked alone. Two more photographs showed the same child performing oral sex on the appellant’s wife. The remaining photograph was of the child naked from the waist down. The record reflects that these photographs were taken approximately one month before the appellant’s arrest.

The baby-sitter took these photographs to the manager of the housing unit in which the appellant lived. The manager summoned the police and ultimately turned the photographs over to them. The photographs were also shown to the seven-year-old girl’s parents.

At trial, the baby-sitter and the manager identified the girl in the pictures as the child of a family that lived nearby. These photographs were entered into evidence.

The seven-year-old girl in these photographs was allowed to testify after the judge questioned her and determined that she was a competent witness. The girl testified that she had been given candy to enter the appellant’s residence and while in his residence that acts like those depicted in the photographs occurred. She also testified that the appellant attempted to have sexual intercourse with her and did have intercourse with his wife in the girl’s presence. The girl also acknowledged that photographs were taken.

The girl’s mother testified that the child lived with her and her second husband near the appellant’s residence, but that they had moved the day after she learned of the incident depicted in the photographs. The girl’s parents had visited with appellant and his wife socially for some four or five months prior to the appellant’s arrest. The mother stated that the girl was undergoing psychiatric care and had become nervous and wary of men. The judge did not allow the State to inquire any further as to the exact nature or the seriousness of the child’s mental problems.

At this point the parties and this witness retired to the judge’s chambers. Further testimony was elicited there, and was transcribed by the court reporter. The mother testified that the girl was once placed in the voluntary custody of a child welfare agency. Her testimony also revealed that her first husband and his brother had possibly sexually abused the child about one year before the incident in question. She related that her first husband had slept with the girl and “apparently . . . pounced on her in his sleep,” and that his brother had masturbated in front of the child. She also testified as to action taken by a Dallas court and the Department of Human Resources regarding both incidents of abuse. The girl was no longer allowed to see her natural father except in public when accompanied by other persons. The mother knew of no other incidents of abuse of the child. This testimony was noi, permitted in front of the jury.

The court also refused to allow the appellant to introduce testimony from appellant’s son which defense counsel maintained would show that the son and two other boys, all about twelve years of age, had engaged in various sexual acts with this seven-year-old girl. Although no bill of exception was made of the boys’ testimony, the court sustained the State’s objection to the offer of such testimony.

Various police officers testified concerning the appellant’s arrest and the chain of custody of the pictures. The appellant’s employer testified at the punishment stage as to the appellant’s good work record.

Appellant does not challenge the sufficiency of the evidence.

Appellant initially challenges the admission of the photographs into evidence. He maintains that Art. 38.23, V.A.C.C.P., prohibits introduction of evidence obtained in violation of law by a private citizen. This challenge is not based on a constitutional violation, however, but on the contention that the baby-sitter’s removal of the pictures was a theft under V.T.C.A. Penal Code, Sec. 31.03, and therefore obtained in violation of the law.

Article 38.23, V.A.C.C.P., supra, provides: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

If no violation of the law occurred, this statute can have no application in the present case. Therefore, we see no need to determine whether the baby-sitter was an “officer or other person” under this statute, as we find the threshold question to be whether a violation of state law occurred.

V.T.C.A. Penal Code, Sec. 31.03, as applicable here, provides:

“(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. “(b) Appropriation of property is unlawful if:
“(1) it is without the owner’s effective consent . . ..”

V.T.C.A. Penal Code, Sec. 31.01(3)(A), provides that:

“(3) ‘Deprive’ means:
“(A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner . . ..”

The evidence in the present case does not support a finding of an intent to deprive by the baby-sitter. The pictures were turned over to the police and the owners identified. This negates any inference that she sought to deprive the owner of his property. The effect of these actions would be to facilitate the return of the property if the police did not find them to be evidence of a crime. We hold that Art. 38.23, supra, does not require the exclusion of this evidence.

The appellant also challenges the use of the pictures as evidence in that no proper predicate had been established and no witness had identified the pictures as to “whom, when and where” they were taken.

We first note that that the testimony of the baby-sitter, the manager, and the police established a proper chain of custody from the time the photographs were found on the dresser until they were entered into evidence. At trial, the seven-year-old girl testified that pictures had been taken by the appellant or his wife in their home at the time the acts depicted occurred. The pictures were not, however, shown to the child at trial.

The baby-sitter testified that she could determine from the photographs that they were taken at the appellant’s home. Her testimony also established that the photographs were found in the appellant’s home.

Testimony of the photographer is not necessary to render photographs admissible. David v. State, Tex.Cr.App., 453 S.W.2d 172. As long as the testimony shows that these photographs fairly and accurately depict the scene on the date of the offense, they are admissible. Fobbs v. State, Tex.Cr.App., 468 S.W.2d 392; Haas v. State, Tex.Cr.App., 498 S.W.2d 206; Goss v. State, Tex.Cr.App., 549 S.W.2d 404.

Insofar as the record reflects, the acts which form the basis of the prosecution herein never occurred at any time other than the occasion in question. The victim described acts like those depicted in the photographs and testified that pictures were made. The baby-sitter identified the location portrayed in the picture. We conclude that the foregoing evidence constituted a basis from which the trial court could conclude that the pictures fairly and accurately depicted what occurred.

Appellant next contends that the trial court erred in entering evidence that the girl was undergoing psychiatric treatment. This testimony was in response to the prosecutor’s inquiry as to what treatment the girl was undergoing. No objection was made to the question or answer. When the prosecutor proceeded to elicit other testimony regarding this treatment, appellant objected. The trial court then refused to allow any further evidence on this subject.

Appellant failed to timely object to the first question regarding this psychiatric care and received all the relief he sought regarding his subsequent objection. Thus, nothing is presented for our review. Guzman v. State, Tex.Cr.App., 521 S.W.2d 267; Martinez v. State, Tex.Cr.App., 504 S.W.2d 897.

Appellant further contends that the trial court erred in refusing to allow introduction of evidence showing prior sexual abuse of the complaining witness by her father and uncle. This testimony was preserved in a bill of exception made during the testimony of the girl’s mother. Appellant offered this testimony to rebut and mitigate the testimony concerning the psychiatric care of the child. The trial court refused to allow this testimony into evidence at both the guilt-innocence and punishment stages of the trial.

This evidence, as all other evidence, must be relevant to a contested fact or issue to be admissible. The determination of this admissibility is within the sound discretion of the trial judge. Lanham v. State, Tex.Cr. App., 474 S.W.2d 197; Hernandez v. State, Tex.Cr.App., 484 S.W.2d 754; Williams v. State, Tex.Cr.App., 535 S.W.2d 637.

The mother’s testimony regarding instances of sexual abuse by other persons is evidence of the victim’s prior sexual conduct. This prior conduct cannot be asserted as a defense if the offense involves a child under the age of fourteen. See Sec. 21.-10(b), supra. Thus, this evidence could not have been germane to any fact issue concerning the appellant’s guilt or innocence. Cf. Young- v. State, Tex.Cr.App., 547 S.W.2d 23.

Nor does the record reveal any fact issue was raised that would warrant entry of this evidence at the punishment stage. In light of the explicit evidence depicting the acts perpetrated on a child of such tender age, a conclusion that mental harm resulted was inevitable. The mother’s testimony went no further than to show the girl was under a psychiatrist’s care and did not raise a fact issue regarding the seriousness of her mental problems. The mother’s testimony of prior abuse would not have tended to justify the appellant’s actions nor mitigate the seriousness of those acts.

We hold that the trial court did not abuse its discretion in excluding evidence of the prior sexual abuse of this child.

The appellant also sought to introduce testimony from the appellant’s son as to the girl’s sexual encounters with the son and two other boys. The trial court refused to allow this into evidence.

Again, this evidence was not relevant to any fact issue raised in the appellant’s trial for the sexual abuse of a child under the age of fourteen. We find that the trial court properly excluded this evidence.

Appellant’s final contention is that the State’s argument during the punishment stage and set out below was improper:

“ . . . She will still have the scars of some sort that will bring her back to that point in time when she was in that trailer and now she knows or has some idea of the impact of what went on and she knows how it was bad and wrong, and I’m sure it’s embarrassing to her, and don’t you know it will always embarrass her if someone will know what happened to her back when she was a little girl at the hands of this Defendant.
“Now, that’s sad it really is, and you should think about her when you’re assessing your punishment. Let’s think about her and think about the other children that live in this community that are subjected to this type of conduct by others and use your common sense.”

Appellant’s objection that the prosecutor was urging the jury to consider what happens to other children was overruled.

We find this argument to be a proper plea for adequate punishment and law enforcement. Hicks v. State, Tex.Cr.App., 545 S.W.2d 805; Crawford v. State, Tex.Cr. App., 511 S.W.2d 14; Pogue v. State, Tex.Cr.App., 474 S.W.2d 492.

The judgment is affirmed.

      . Appellant did not contend that the photographs were gruesome or that their prejudicial effect would outweigh any probative value.


text:
    Willie Lee PETERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 56455.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 22, 1978.
    Rehearing En Banc Denied Dec. 20,1978.

      Paul Brauchle and Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum, C. Wayen Huff and John Ovard, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the offense of aggravated robbery. V.T.C.A., Penal Code, Sec. 29.02. The jury assessed punishment at 35 years.

Appellant initially complains of fundamental error in the jury charge. Appellant contends that the court’s charge authorized conviction on a theory not alleged in the indictment.

The indictment in the instant case alleges that the appellant committed the offense of aggravated robbery by “. . . then and there by using and exhibiting a deadly weapon, to-wit: a firearm, intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury.”

The court in its charge to the jury on guilt or innocence abstractly explained the law of robbery and then in applying the law to the facts stated in part,

“. . . and that the said defendant, in so doing, and with intent to acquire and maintain control of said property, intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant used or exhibited a deadly weapon, to-wit: a firearm then you will find the defendant guilty of aggravated robbery as charged in the indictment.” [Emphasis added.]

In Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), this Court held a jury charge fundamentally defective that authorized conviction under every conceivable theory in the robbery and aggravated robbery statutes. Likewise, in Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977), we held a jury charge fundamentally defective where the trial court failed to limit the charge to the theory alleged in the indictment. To a similar effect are our recent decisions in Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.1978), and Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978). See also Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978).

In the instant case, the indictment alleged robbery under Y.T.C.A., Penal Code, Sec. 29.02(a)(2), and the aggravated factor found in V.T.C.A., Penal Code, Sec. 29.-03(a)(2). Appellant argues that the indictment did not allege fear of “death,” although the jury was charged that they could convict the appellant if they found that the complainant had been placed in fear of “death.”

V.T.C.A., Penal Code, Sec. 1.07(a)(ll)(A), defines a “Deadly Weapon” as:

“a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury

V.T.C.A., Penal Code, Sec. 1.07(a)(7), provides that:

“ ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”

The charge in the instant case does not contain the vice condemned in Robinson v. State, supra; Davis v. State, supra; Edmond v. State, supra; and Jones v. State, supra, wherein all of the possible theories of aggravated robbery were submitted in the court’s charge. Where, as here, the indictment alleges that appellant violated V.T.C.A., Penal Code, See. 29.03(a)(2), implicit in the allegation that a “Deadly Weapon” was used to threaten the complainant is the possibility that the complainant was threatened with death as well as bodily injury. We do not find that the charge authorized conviction on a theory not alleged in the indictment. No fundamental error is shown in the court’s charge.

Appellant next complains that the use of the term “firearm” was “so vague as to fail to put appellant on notice of the particulars of the weapon he allegedly used to commit the offense.”

In O’Briant v. State, 556 S.W.2d 333 (Tex. Cr.App.1977), also an aggravated robbery case, the indictment likewise charged that the defendant committed the offense by using a “firearm.” The defendant contended on appeal that the use of the word “firearm” was too general. In rejecting the defendant’s contention, this Court stated:

“We find ‘firearm’ to be far less vague and general than the word ‘gun.’ It could reasonably be urged that the word ‘gun’ is broad and general enough to include such diverse instrumentalities as a ‘BB gun,’ a ‘blow gun,’ a ‘pop gun,’ or even a ‘grease gun.’ Clearly the word ‘firearm’ has a much more limited meaning.”

We find the indictment in the instant case charged the commission of the offense “in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged.” Article 21.11, Y.A.C.C.P.

The court did not err in overruling appellant’s motion to quash the indictment.

The judgment is affirmed.