author: CLINTON, Judge.

text:
    Daniel William MITCHELL, Appellant, v. The STATE of Texas, Appellee.
    No. 59860.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 24, 1979.

      Terrence A. Gaiser, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Lewis Dickson, III, and Connie B. Williams, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

CLINTON, Judge.

Any method worthy of being called a “system” is expected to work at least tolerably well. What is now before us demonstrates, however, that sometimes the criminal justice system functions at a level well below acceptable tolerance. With the thought that critical evaluation of one operation of the mechanism may provoke self-examination of others, we assay the instant situation in some detail. Our critique is not of individual performance but of the mechanical operation of the system itself in this case.

Appellant was arrested in the evening of January 11, 1977, as he was getting out of his automobile in a parking stall connected with an apartment complex in which he resided on Ella Boulevard in Houston. According to the arresting officer, appellant had just placed in his mouth a baggy containing a substance that the officer believed to be and was found to be heroin — four grams of it. We infer from the state of the record now before us that appellant had been confined ever since, first in the Harris County Jail and now in the Texas Department of Corrections.

Returned March 14, 1977, the second indictment charges as the primary offense intentional and knowing possession of heroin followed by two enhancement paragraphs, one alleging a 1956 conviction for theft and the other a 1967 conviction for possession of heroin. The seriousness of the situation lies in the possible maximum punishment: confinement for life.

The motion to suppress, filed March 18, 1977, by what appears to be retained counsel, was heard April 19, 1977. The crux of appellant’s theory for suppressing as evidence all “items seized as a result of the search” is stated as follows:

“The Defendant was getting out of his automobile when Defendant was approached and placed under arrest without probable cause. He was removed from his vehicle to the police car, and without proof of exigent circumstances, the officers had no lawful right or authority to search the Defendant or his vehicle without first securing a search warrant.”

Houston Radio Patrol Officer R. E. Ash-wood testified that acting on information from one he believed to be reliable that at about a given time and stated place appellant would have in his possession a quantity of heroin for sale, he and his partner went to a place near the apartment complex and shortly an automobile fitting the make and license number previously given him turned into the complex premises. Following its route the officers spotted the car, backwards in a parking stall, with its driver still inside. Though the precise sequence of movements that followed is not made clear, we gather that the officer approached the automobile simultaneously with the opening of its door automatically turning on its dome light and thereby revealing the face and figure of appellant. Still approaching him, the officer saw appellant “reach into his shirt pocket and pull out this baggy with a substance in it that I believed to be heroin and put that in his mouth.” Until that moment neither officer had said a word to appellant nor laid a hand on him. After that moment we are left to wonder .just what occurred:

“Q. Did you retrieve the substance?
A: Mr. Garza, the surveillance officer, did, and he retrieved it from him immediately.”

Then appellant was formally arrested.

The testimony concluded and without hearing argument of counsel — leave to be heard was not requested — the trial court rendered its ruling: “The motion is overruled. I think it was a good arrest.”

The case was reset for trial on August 3, 1977, then for November 2, 1977. On that day counsel for appellant presented and the court granted him leave to withdraw. Trial was then set for November 29, 1977, at which appellant appeared with other counsel who, we infer, was retained; the case was reset for January 10, 1978. Through written motion the trial court was informed that appellant had failed to cooperate with and no longer desired the services of his second counsel. Leave to withdraw granted, with third retained counsel apparently standing by, for there followed a plea hearing. It created issues that are also brought to the Court in this appeal.

A plea bargain had been struck. Executed by appellant and his counsel and approved by counsel for the State and by the presiding judge were two separate papers: “Waiver of Trial by Jury in Felony less than Capital” in the usual acceptable form and “Stipulation of Evidence,” in which appears above the signature of appellant and the jurat of a deputy clerk, inter alia, the following statement:

“ * * * I waive my right against self-incrimination and confess the following facts:
On January 11, 1977, in Harris County, Texas, I did intentionally and knowingly possess a controlled substance, namely Heroin.”

(The enhancement paragraphs were waived by the State.)

The admonishment of appellant by the trial court is exceptionally correct, clear and concise. Admitted into evidence as a single exhibit, State’s Exhibit No. 1, were the executed and approved waiver and stipulation, which appear to our eye to have once been stapled together — alas, they are separated again. With the recommendation of sixteen years confinement and informed that it was a product of bargaining, the careful presiding judge then ascertained from him that appellant understood the agreement and cautioned appellant: “Do you understand that if I follow that recommendation you cannot appeal this case?” and received an affirmative response. The trial court then found appellant guilty and assessed punishment in accordance with the bargain, in pertinent part:

“THE COURT: All right, on your plea of guilty, together with the stipulations and waivers filed in this cause, I find you guilty of the felony offense of possession of a controlled substance . . . and assess your punishment at confinement . for sixteen years.”

Appellant waived ten day period for filing motions and was sentenced to serve not less than two nor more than sixteen years. Then and there in open court counsel for appellant announced, “We will give notice of appeal, Your Honor.”

The docket sheet contains the following germane entries in the order in which they appear — all on the same January 10, 1978:

“The Court has assessed punishment not exceeding that recommended by the State and agreed to by the Defendant and his attorney. Permission to appeal will not be granted in this case absent written authorization by the court.”
“To which action of the Court the defendant, by and through his attorney, excepts to the ruling of the Court and gives notice of appeal to the Court of Criminal Appeals . . . ”
“Defendant filed paupers oath . attorney appointed on appeal.”

Among the papers is a sworn “paupers oath” with the prayer “the Court direct” the court reporter to prepare a statement of facts, and appended to it is an order signed by the court, directing the reporter to do so. The sentence, erroneously dated January 10,1976, also notes the notice of appeal and then provides that because that notice was given “execution of the sentence is deferred to await the judgment and order of our Court of Criminal Appeals in this behalf,” and finally recites that appellant is transferred to the Texas Department of Corrections “pending mandate of affirmance Court of Criminal Appeals . ” Also in the record is a commitment issued by the clerk of the court directing the sheriff to deliver appellant to TDC, “having given Notice of Appeal to the Court of Criminal Appeals . . ., pending mandate from said Court.”

When the record was completed and, as earlier noticed, no objections were filed, the trial court approved an order finding it correct, approving it and ordering it filed “as the record in said cause.” After briefs were filed with the clerk of the court, the trial court signed an order directing its clerk immediately to cause the appellate record to be transmitted to the Clerk of this Court.

The cause was submitted November 28, 1978 to a panel of the Court. Things get “curiouser and curiouser” — just as Alice exclaimed.

It will be recalled that the brief presented by appointed counsel for appellant challenged only admissibility of the controlled substance. In his well written pro se brief appellant also attacked seizure of the heroin but limits his challenge to a narrow contention that reliability of the informant was not adequately demonstrated. For its part, passing over the threshold issue, the State tells us in its reply to grounds of error advanced by appellant’s counsel:

“Candidly, the propriety of the officers [sic] actions in the instant case must be determined in light of probable cause for either arrest, search, or both.” (Emphasis in original.)

Now, in his recent motion, appellant, himself, is the first person making his way through the maze of this case who had directly and pointedly stated what is at once obvious: The brief filed by his appellate attorney “should have been designated a ‘frivolous appeal brief’ in that the grounds of error raised therein were foreclosed to review by this Court’s decision in Stiggers v. State, Tex.Cr.App.1974, 506 S.W.2d 609.” Appellant, more than one year and four months after his trial on a plea of guilty, has stated plainly in writing what no one else did: Search and seizure errors claimed here are not involved in the conviction “as no physical evidence obtained thereby had been introduced at trial.” He is absolutely correct, as Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978) affirms. All grounds regarding admissibility of the controlled substance are overruled since it was never admitted into evidence.

In his pro se brief appellant contends in his second ground of error that the State failed to introduce evidence to support judgment of conviction as required by Article 1.15, V.A.C.C.P. Specifically he asserts that the “Stipulation of Evidence” was not formally introduced. Factually, appellant errs. As recited ante, the exhibit is in the record before us, stapled to a page headed State’s Exhibit No. 1 — Stipulation of Evidence. Thus, Garcia v. State, 571 S.W.2d 896, 900 (Tex.Cr.App.1978) is inapposite. The ground of error is overruled.

His third ground of error contends that the State failed to introduce probative evidence that the substance appellant was charged with possessing was in fact heroin. He makes a somewhat convoluted argument that his judicial confession is not in itself enough to show that appellant “knew” it to be, or was somehow qualified to say it was, heroin. As appellant recognizes, however, Pesina v. State, 560 S.W.2d 97 (Tex.Cr.App.1978), is dead set against him, and we do not see the horrors he conjures up in arguing that the decision is “dangerous” and should be overruled. Appellant’s third ground of error is overruled.

Finally, the threshold contention by the State — “the notice of appeal given was without the trial court’s consent and therefore ineffective to confer jurisdiction to the court” — brings us back to still another malfunction in the system. Article 44.02, V.A. C.C.P., precludes appeal where conviction follows from a plea bargaining that is received and respected in assessment of punishment by the trial court — “ ‘except on those matters which have been raised by written motion filed prior to trial.’ ” See generally Decker v. State, 570 S.W.2d 948 (Tex.Cr.App.1978). We now know what all parties must have, that appellant did file and present a motion to suppress, and his original brief and the one filed by counsel on his behalf addressed the issues raised by the motion, albeit a futile endeavor. But the motion, having been filed, presented, heard and ruled on, provides appellate jurisdiction, and, called on to do so, we have exercised it here.

Our fervent hope is that distractions and diversions, permitted any party by inattentive preparation of and cursory approval of an appellate record, will cease to hinder smoother operation of the criminal justice system. To that end this critique is submitted.

The appellant’s motion for rehearing is denied and the judgment of conviction is affirmed.

DOUGLAS and DALLY, JJ., concur in result.

      . The appeal on original submission was properly dismissed by a per curiam panel opinion April 25, 1979 because although all grounds of error challenged admissibility of the heroin, the record did not then show the issues ruled on by the trial court after a suppression hearing had been raised by written motion filed prior to trial. The reason the written motion — it had,, indeed, been filed with the clerk of the court— was not in the record was because it had been filed among the papers in Cause No. 257,373, the number given the original indictment, but all subsequent proceedings were held in Cause No. 259,653, the number of the “reindictment,” and the motion never made it from the former to the latter — notwithstanding both the second docket sheet and indictment show on their face that Cause No. 259,653 is a “reindictment” of Cause No. 257,373. Responding to a motion to supplement the appellate record filed May 8, 1979, the trial court caused a supplemental transcript to be prepared that contains the motion to suppress evidence filed March 18, 1977, four days after the grand jury returned the second indictment to the same district court. All this in the face of a written designation of record on appeal, prepared by appellant pro se and filed by the clerk March 14, 1979, that expressly designated “particularly the hearing conducted on the Motion to Suppress” and all motions, pre-trial proceedings and other identified papers.

        Appellant pro se forwarded to the Clerk of this Court, within time permitted for filing a Motion for Leave to File a Motion for Rehearing, his motion to reinstate the appeal — after, so he informs the Court, reading in a newspaper'that the appeal had been dismissed, but not knowing on what basis. Since his motion was timely filed there is no need to order the appeal reinstated for we treated and granted the motion as one for leave to file for rehearing.

      . We pretermit a recitation of all aspects of reasonable suspicion or probable cause or whatever motivated the quest, for the issue is' now moot.

      . At one point, asked whether the informant said he knew that appellant would have heroin, the officer, in what has to be jargon only another criminal justice system person would appreciate, actually replied, “No, the actor had told the informant that when he came to the location he would have a quantity of heroin for sale.” How have we come to permit such “nonspeak” as this to become the parlance of the courtroom?

      . Officer J. Colunga, who was driving the patrol car.

      . This testimony is the first, only and last mention of surveillance officer Garza. The record tells nothing else about him or just how he went about retrieving the “substance” from appellant “immediately.”

      . There were references to antagonisms, accusations and statements that indicated a loss of the faith, confidence and trust that are essential to a satisfactory attorney-client relationship.

      . We must confess astonishment in this:
      “THE COURT: Have you ever, in this or any other jurisdiction been convicted of an offense of the grade of felony?
      DEFENDANT: No sir.”

      . We know the court reporter did prepare a statement of facts that he certified January 17, 1978 at the expense of Harris County. Briefs, including appellant’s pro se brief, were filed on or about September 15, 1978. Meanwhile, so appellant informs the Court in his motion to reinstate appeal, “Appellant persuaded his family to purchase a copy of the Statement of Facts and Transcript . . . and prepared and filed his pro se brief.”

      . Because this is an apparent typographical error, the trial court should correct the sentence, nunc pro tunc.

      . As best we can tell, neither judgment nor sentence bears the signature of the trial judge. To the extent that omission suggests they were not presented to him, the trial court was deprived of an opportunity to review and detect any apparent errors.

      .Neither that order nor any other in the record reflects that the trial court carried out the duty imposed by Article 40.09, § 12, V.A.C.C.P., “to decide from the briefs . . whether the defendant should be granted a new trial and we are not otherwise advised. Without elevating it to a “presumption of regularity” — a risky one in the circumstances of this case — we merely assume the court did so. Having read the brief for the State, the trial court had to notice a threshold issue raised on its first page: “In light of the Court’s admonishment regarding Appellant’s waiver of appeal, the notice of appeal was without the trial court’s consent and therefore ineffective to confer jurisdiction to this court . . Art. 44.02 V.A.C.C.P.”

      . Lewis Carroll, “Alice in Wonderland” Ch. 2.

      . In fairness to the State we note that it filed a supplemental brief directly in this Court November 28, 1978, in which both Ferguson and Stiggers were cited, but somewhat masked their holdings by alluding to a plea of guilty being supported by a judicial confession so that “any erroneous ruling on the (pretrial) motion does not vitiate the conviction.”

      . With jurisdiction to decide the search and seizure questions the Court determined it expedient to decide the “no evidence” and “insufficient evidence” contentions advanced by appellant pro se in order to avoid additional expenditure of judicial time and effort in a post-conviction habeas corpus proceeding preliminary to a federal one, as in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) and Jackson v. Virginia,-U.S.-, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) 25 Cr.L. 3229.


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Carl Ray RENFRO, Appellant, v. The STATE of Texas, Appellee.
    No. 55788.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      Richard A. Dawson, Sugarland, and Donald A. Smyth, Huntsville, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Greg Pipes, R. J. Adcock and Candyce Howell, Asst. Dist. Attys., Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. The appellant was convicted by a jury which assessed his punishment, enhanced by a prior felony conviction, at 99 years’ confinement. See V.T. C.A., Penal Code, 12.42(c).

The appellant contends that he did not voluntarily and knowingly waive his right to counsel and that he was compelled to represent himself without the obligatory warnings and admonishments concerning the dangers and disadvantages of self-representation. See Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977). The appellant’s contention is well taken; accordingly, we reverse.

Due to the nature of appellant’s contention, we deem it unnecessary to set forth with particularity the facts and circumstances surrounding the offense with which he was charged. Suffice it to say, that after hearing the evidence presented by the State, the jury found the appellant guilty of robbing at knifepoint Eunice Roberson, while she was working at a convenience store in Fort Worth.

At a pretrial hearing on October 7, 1976, the appellant informed the court that he was not satisfied with the representation he was receiving from his court-appointed counsel, and that he wished the court to appoint different counsel. The court refused the appellant’s request and advised the appellant that his right to employ private counsel was in no wise being infringed upon and that court-appointed counsel would not be relieved until such time as the appellant verified to the court that he had employed private counsel. During several subsequent pretrial hearings, the appellant persisted in his request that the court appoint different counsel and each time the court refused such request. The record reflects the following colloquy between the court and the appellant at a pretrial hearing on November 15, 1976:

THE COURT: “. . . Mr. Williams has been appointed to represent you. If you don’t want him representing you, you don’t have to have him representing you. You don’t have to have anybody representing you. I am going to order that Mr. Williams remain in the courtroom to be able to advise and consult with you if you want his advice and consultation, if you don’t want him to represent you. Now, what’s your desire with regards to that?”
THE DEFENDANT: “Your Honor, I asked for another attorney and I filed this motion with the courts earlier which the motion was denied for another attorney and I am not satisfied with the present attorney that I have, Mr. Harry Williams, but I have no alternative due to the fact that honorable judge would not appoint me another one and I am forced to defend myself as best I could and without any knowledge of the fine points of law and I have been denied the services of a — Mr. Harry Williams as far as filing motions and any type of writs and all statements or anything of this matter I have did on my own and without any assistance from my court-appointed attorney, Mr. Harry Williams.”
THE COURT: “Well, what I want to know from you at this time, Mr. Renfro, is this: Do you want Mr. Williams representing you as your attorney in front of the jury when you go to trial in your case Wednesday?”
THE DEFENDANT: “No, I do not.”
THE COURT: “You do not? You are going to represent yourself; is that right?”
THE DEFENDANT: “Yes.”
THE COURT: “All right. Now, I told you just a minute ago that, of course, you are entitled to do that under the law. I will allow you to do that. I am going to require that Mr. Williams stay in attendance on the Court for the purpose of advising you if you seek his advice; otherwise, he won’t say a word. You understand?”
THE DEFENDANT: “Well, am I to understand that this a technicality of showing that Mr. Williams is a — representing me?”
THE COURT: “Yes. Mr. Williams is representing you. The Court has appointed him to represent you. Now, you have declined to have him try your case for you, which is a privilege you have.”
THE DEFENDANT: “He can try the case, but what I mean is, he is — I would like for him to say anything that he thinks could help in my defense.”
THE COURT: “Can’t have it both ways, Mr. Renfro. Is he going to represent you or is he not going to represent you?”
THE DEFENDANT: “Well, I don’t have any alternative but to — yes, he can represent me.”
THE COURT: “Okay. That’s the way we’ll proceed, then.”
THE DEFENDANT: “I don’t want him to represent me. I'd rather represent myself.”
THE COURT: “I understand.”
THE DEFENDANT: “But the court is forcing me to. I would like to represent myself. I don’t want Mr. Harry Williams.”
THE COURT: “I am going to let you represent yourself if that’s what you want to do. Is that what you want to do?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “All right.”
* * * * * *
THE COURT: “. . . Mr. Williams is going to remain in the courtroom while the case is being tried. Now, unless and until you want him to say a word, he won’t. If at any time during the trial you want to seek his advice, he’ll be there for that purpose. Do you understand?”
THE DEFENDANT: “Right.”

At the appellant’s trial on the merits, the record reflects the following:

THE COURT: “Mr. Renfro, for purposes of the record, you informed the Court sometime ago in writing by way of a motion that you felt insecure with Mr. Williams, your appointed counsel, asked the Court to relieve Mr. Williams of the responsibility of representing you in this case and to allow you to represent yourself; is that correct?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “Upon a hearing, the Court granted that relief with the exception that the Court insisted that Mr. Williams sit at counsel table and be available to you in the event you wanted to confer with him or needed advice from him; is that correct?”
THE DEFENDANT: “Your Honor, I also asked for another attorney that was — motion that was denied, too, I would like to state at this time.”
THE COURT: “Yes, sir, but you are at this time representing yourself because that is your desire as per your motion; is that correct?”
THE DEFENDANT: “Yes, sir.” ******
THE DEFENDANT: “May the record also reflect that Mr. Williams has been restrained from obtaining any type or giving any type of assistance in defending — helping to defend my case?”
THE COURT: “I don’t understand you, Mr. Renfro.”
THE DEFENDANT: “In other words, you have restricted Mr. Williams from making any type of oral statements or anything in my behalf.”
THE COURT: “The Court has not restricted Mr. Williams in any way. The Court at all times has been willing for Mr. Williams to represent you. You, Mr. Renfro, requested that he not do so. Isn’t that correct?”
******
THE DEFENDANT: “Well, this, I was referring to when I asked for another attorney, but since the Court does not wish to give me another attorney and proper counseling, I have no alternative but to use whatever means I can to . . .”
THE COURT: “All right.”

The appellant represented himself at trial without the assistance of appointed counsel. Of the eight witness presented by the State and 16 State’s exhibits introduced into evidence, the appellant asked only eight questions on cross-examination and made three objections to the admission of various items of evidence. Appellant presented no witnesses in his behalf nor did he testify, although he did make a closing argument before the jury.

These are the facts from which we must determine whether the appellant voluntarily and knowingly, with “eyes open,” waived his right to be represented by counsel at trial, a right guaranteed to him by the state and federal constitutions. U.S.Const. amend. VI; Tex.Const. Art. 1, Section 10. See also Barbour v. State, supra. In the recent case of Lisney v. State, 574 S.W.2d 144 (Tex.Cr.App.1978), we had the occasion to state succinctly the applicable rules determinative of the question before us:

“On the issue of waiver of counsel, this court stated in Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.1978):
‘However, an accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Barbour v. State, [supra], Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App.1977). To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. Johnson v. Zerbst, 3Ó4 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra; Thomas v. State, supra. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself. Thomas v. State, supra; Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976). In Faretta v. California, supra, the Supreme Court held that the record should reflect that the defendant waived his right to counsel only after being made aware of the advantages and disadvantages of self-representation so that it is clear that he “knows what he is doing and his choice is made with eyes open.” 425 U.S. at 835, 95 S.Ct. at 2541.’ ”

In Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App.1977), we noted that the accused’s right to select his own counsel cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts and thus interfere with the fair administration of justice. Ibid, at 68. We then held, under facts similar to those of the present case, that where the accused is not satisfied with appointed counsel and cannot show adequate cause for the appointment of different counsel, in the absence of a voluntary and intelligent waiver of counsel by the appellant, he should be required by the court to accept appointed counsel and not be required to represent himself merely on the basis of his dissatisfaction with appointed counsel.

Another closely analogous case is that of Robles v. State, 577 S.W.2d 699 (Tex.Cr.App.1979), in which the defendant requested different counsel and the trial court responded by giving the defendant the choice of (1) continuing with the same counsel, or (2) obtaining other retained counsel ready to go to trial immediately, or (3) representing himself. We concluded that the trial court’s response to the defendant’s request was unreasonable and, in effect, a Hobson’s choice, designed to force the defendant to continue with the same counsel or else represent himself, the latter alternative being the one elected by the defendant. After observing that there was nothing in the record to indicate that the defendant attempted to manipulate the orderly procedures of the court we held:

“A request for other counsel is not a waiver of the right to counsel. Thomas v. State, 550 S.W.2d 64, 68 (Tex.Cr.App.1977). [C]ounsel should have been required to remain in the case until there was an affirmative waiver of the right to counsel and a request for self-representation.” 577 S.W.2d 704-705.

Although the appellant, upon the court’s inquiry, stated that he wished to represent himself, it is abundantly clear from the record as previously set forth that the appellant’s decision to do so was based solely on the court’s refusal to appoint different counsel and not because he wished to forego his right of representation. We cannot say, under these facts, that the appellant voluntarily and knowingly waived his right to counsel. Robles v. State, supra; Lisney v. State, supra; Thomas v. State, supra.

Furthermore, not only does the record in the present case fail to demonstrate a voluntary and knowing waiver of the right to counsel, it also fails to show that the appellant’s decision to represent himself was intelligently made as required by Faretta v. California, supra, and Jordan v. State, supra. The court made no inquiry into the appellant’s age, educational background, legal experience, knowledge of the rules of evidence and trial procedure nor was the appellant made aware of the dangers and disadvantages of self-representation. In short, the record fails to demonstrate that the appellant’s choice to represent himself was made with his “eyes open.” See also Barbour v. State, supra. We conclude that the trial court erred by not requiring the appellant to accept appointed counsel when it was apparent that the appellant’s decision to represent himself was not voluntarily, knowingly and intelligently made.

The appellant also complains that he was deprived of three days’ jail credit at the time he was sentenced. We are confident that in the event appellant is tried again for this offense the trial court will enter the appropriate correction, if necessary. See Article 42.03, V.A.C.C.P.

The judgment is reversed and the cause remanded.


text:
    Harold Wayne SHEPPERD, Appellant, v. The STATE of Texas, Appellee.
    No. 56225.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 19, 1979.

      Robert J. Kuhn, Austin, for appellant.
    Edward J. Walsh, Dist. Atty., Georgetown, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

After the jury found the appellant guilty of “unlawful possession of firearm by felon,” the court assessed punishment at five years’ confinement.

The first ground of error argues that the State failed to prove that the appellant was “a person who has been convicted of a felony.” The statement of facts reads:

“(Indictment read to Jury.)
“THE COURT: To which the defendant pleads—
“MR. WEBERNICK: Not guilty, Your Honor.
“MR. CONNOR: At this time, the State would introduce by stipulation the certified copy of the conviction in Cause Number 14,926, out of Bell County, Texas, which is, the ones charging Mr. Sheppard, Harold Wayne Sheppard, with the offense of robbery by force.
“MR. WEBERNICK: Your Honor, we will so stipulate to the introduction.
“MR. CONNOR: The State does introduce it at this time.
“THE COURT: All right. Is that all your stipulation?
“MR. CONNOR: Yes, sir.
“THE COURT: We will recess .

The appellant argues that the stipulation extended only to the introduction of the exhibit, not to the fact that the person named in the exhibit was the appellant, so that the record contains no proof of identity. Although the stipulation “is certainly not a model,” as the State admits in its brief, it makes sufficiently clear that the parties were stipulating to the identity of the appellant and the person named in the exhibit. The use of the word “stipulation” by both parties would have been inappropriate to a mere offer of an exhibit without objection. The prosecutor’s reference to “the ones charging Mr. Sheppard, Harold Wayne Sheppard,” linked the exhibit to the appellant. By using the name “Wayne,” the prosecutor must have been referring to the appellant; the records of the former conviction identify the defendant as “Harold W. Sheppard,” not using the name “Wayne.” We also note that the stipulation was not the only proof of identity. The exhibit was a prison packet, which included photographs, birth date, and a detailed physical description (including descriptions of tattoos on the forearms) of the defendant in the former case. This constitutes independent proof of identity when the finder of fact can observe the defendant in the courtroom. Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977). The stipulation and the exhibit constituted sufficient proof of identity.

The second ground of error argues that V.T.C.A., Penal Code, Sec. 46.05, violates Article 1, Section 23, of the Texas Constitution (“Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”) The appellant argues that the reasoning of Webb v. State, 439 S.W.2d 342 (Tex.Cr.App.1969), which upheld a statutory predecessor, is inapplicable to Section 46.05. This precise argument was rejected in McGuire v. State, 537 S.W.2d 26 (Tex.Cr.App.1976). The appellant urges us to re-examine McGuire. We have done so, with the same result. Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977). The statute does not infringe on the provision of the Constitution.

In his third ground of error the appellant argues that prosecution under Section 46.05 violates due process of law and due course of law. According to the appellant, the purpose of the statute is to prevent the use of firearms in committing crime. He then argues that the statute conclusively presumes that all persons who have been convicted of a felony involving an act of violence or threatened violence are likely to commit crimes. From this the appellant concludes that due process and due course are violated in two ways: by an unreasonable and arbitrary classification of the felons, and by the denial of a hearing on the individual circumstances of the possession. We shall address each conclusion.

A federal statute (18 U.S.C. Appendix, Section 1202(a)) makes it an offense for a felon (of any stripe) to possess or to receive a firearm in commerce or affecting commerce. The classification of felons for this purpose is rational and does not deny due process. E. g., United States v. Ransom, 515 F.2d 885 (5th Cir. 1975), cert. denied, 424 U.S. 944, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976); United States v. Lupino, 480 F.2d 720 (8th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 257, 38 L.Ed.2d 159 (1973). Felons who have committed crimes of violence or threatened violence are more likely than other felons to commit dangerous crimes. See Cocozza & Steadman, “Some Refinements in the Measurement & Prediction of Dangerous Behavior,” 131 American Journal of Psychiatry 1012 (1974). A fortiori, the classification of such felons is rational.

In saying that defendants are denied a hearing on the individual circumstances of the possession, the appellant overstates his case, for the defenses (e. g., duress) in chapter 8 of the Penal Code and the justifications (e. g., necessity) in chapter 9 are available to him. Also, mere possession is not an offense; the State must prove that the possession was intentional or knowing. Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976). Despite the overstatement, the appellant makes it clear that his real complaint is that a defendant is not given an opportunity to rebut the “presumption” that he (as a person who has been convicted of a felony involving an act of violence or attempted violence) is likely to commit crimes. He relies on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1971) (unwed father denied opportunity to prove fitness as a parent after death of mother), and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1970) (uninsured motorist’s driving license and automobile registration suspended without hearing on issue of fault). These cases are not controlling for at least two reasons.

First, a key passage from Stanley v. Illinois must be considered:

“In Bell v. Burson, 402 U.S. 535, [91 S.Ct. 1586, 29 L.Ed.2d 90] (1971), we found a scheme repugnant to the Due Process Clause because it deprived a driver of his license without reference to the very factor (there fault in driving, here fitness as a parent) that the State itself deemed fundamental to its statutory scheme. Illinois would avoid the self-contradiction that rendered the Georgia license suspension system invalid by arguing that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children.
“ * * * But all unmarried fathers are not in this category; some are wholly suited to have custody of their children. This much the State readily concedes, and nothing in this record indicates that Stanley is or has been a neglectful father who has not cared for his children. Given the opportunity to make his case, Stanley may have been seen to be deserving of custody of his off-spring. Had this been so, the State’s statutory policy would have been furthered by leaving custody in him.” 405 U.S. 653-655, 92 S.Ct. 1213-1214 (emphasis supplied) (footnotes omitted).

In Bell and Stanley, due process was being denied by the failure to consider proof of the very factors (fault and fitness) that were central to the statutory schemes. In contrast, Section 46.05 of the Penal Code not only permits, it requires proof of the very factor that is central to the purpose of the statute: keeping violent felons from going about with firearms. Unlike Stanley, a violent felon has much in his record to indicate that he is unfit to have “custody” of a firearm; unlike Bell, he has a record of “fault,” a record of violent crime. To paraphrase Reddy v. United States, 403 F.2d 26, 27 (1st Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 871, 21 L.Ed.2d 778 (1969), it is not without support in reason to conclude that a person whose crime was a violent felony is an undesirable person to possess firearms; proof of an inescapable relationship between past and future conduct is not requisite.

Second, it must be noted that Stanley and Bell were being deprived of a basic right or an essential privilege. The right to possess firearms away from home is not of comparable importance. See United States v. Karnes, 437 F.2d 284, 287 (9th Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971). To extend the holding of Stanley beyond certain constitutionally protected rights would turn its doctrine “into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.” Weinberger v. Salfi, 422 U.S. 749, 772, 95 S.Ct. 2457, 2470, 45 L.Ed.2d 522 (1975). Section 46.05 of the Penal Code is one of those legislative judgments to which Stanley does not extend. The statute is a legitimate exercise of the directive in Article 1, Section 23, of the Texas Constitution that the wearing of arms be regulated. The classification of violent felons is rational. Due process and due course of law do not require that a defendant be allowed to be heard on other issues.

In a separate due process attack, the appellant contends that the phrase “away from the premises where he lives” is unconstitutionally vague. We have said that the entire statute is not vague. Runo v. State, 556 S.W.2d 808 (Tex.Cr.App.1977). In Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976), we held that another phrase in the statute (“a felony involving an act of violence or threatened violence to a person or property”) was not unconstitutionally vague. The well-known test is whether the term is so vague that men of common intelligence must guess as to its meaning and differ as to its application. Powell v. State, supra, at 618. Without repeating the authorities and examples cited in Powell, it is sufficient to hold that, by that test, the phrase “away from the premises where he lives” is not unconstitutionally vague.

In his fourth ground of error, the appellant claims that the evidence was insufficient to prove that he was away from the premises where he lived. The appellant produced evidence that he lived in a camper which was mounted on his ' pickup truck. On the night in question, the truck was parked on the parking lot behind a “beer joint.” A group of young people were engaged in throwing tomatoes at each other when the appellant appeared on the parking lot with a shotgun. He fired several times, slightly wounding one person. If the appellant lived in the camper, he was away from the premises where he lived when he left the camper and went onto the parking lot. An adjacent parking lot is not part of the premises where one lives. Bryant v. State, 508 S.W.2d 103 (Tex.Cr.App.1974). See Wilson v. State, 418 S.W.2d 687 (Tex.Cr.App.1967). The evidence was sufficient to prove this element of the offense.

The judgment is affirmed.

      . “A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.” V.T.C.A., Penal Code, Sec. 46.05(a).

      . See 405 U.S. at 651-652, 92 S.Ct. 1208.

      . See 402 U.S. at 539, 91 S.Ct. 1586.

      .As we have held again today, the Texas Constitution does not protect the possession of firearms by a felon. The same is true of the United States Constitution. E. g., United States v. Day, 476 F.2d 562 (6th Cir. 1973).


author: ONION, Presiding Judge. ROBERTS, Judge,

text:
    Herbert Lee KNOX, Appellant, v. The STATE of Texas, Appellee.
    No. 56363.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      Donald B. Dailey, Jr., Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty., and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin, where the punishment was assessed by the jury at five (5) years, probated.

Appellant’s sole contention is that the heroin in question was seized incident to an unlawful arrest and hence was inadmissible in evidence. Appellant argues that the court erred in overruling his supplemental motion to suppress because the affidavit or complaint on which the capias ordering the arrest of the appellant was not based on probable cause.

On May 5, 1976 a complaint and information were filed in County Court at Law No. 5 of Nueces County charging appellant with the offense of theft. Omitting the formal parts, the complaint reads:

“Before me, the undersigned authority, on this day personally appeared David L. Castillo who, after being duly sworn, on oath deposes and says that he has good reasons to believe and does believe that heretofore, to-wit on or about the 2nd day of May, A. D. 1976, and anterior to the filing of this complaint, in the County of Nueces and State of Texas, one Herbert Lee Knox did then and there unlawfully appropriate property, other than real property, to wit: a tire and rim of the value of $20.00 or more but less than $200.00 without the effective consent of Tradewinds Ford, the owner thereof, and with the intent to deprive Tradewinds Ford of said property . . . .”

On the same date the complaint and information were filed the clerk issued a capi-as ordering the arrest of the appellant. On May 6,1976 Detective David L. Castillo and Officer Flores of the Corpus Christi Police Department executed the capias. They observed the appellant outside a drive-in grocery. They identified themselves and told appellant he was under arrest. He was removed from his car and frisked, which frisk revealed a needle and syringe. Detective Castillo then entered appellant’s vehicle, and as he did, he observed a cup covered with tinfoil on the console. He examined the cup, removing the tinfoil, and found it to contain a white powdery substance which was later shown to contain heroin.

In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the United States Supreme Court wrote:

“The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a' warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).” (Emphasis supplied.) See also Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965); Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1965) (on remand).

Further, the Supreme Court has held that the exclusionary rule was applicable to state prosecutions, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and that the same probable cause standards were applicable to federal and state warrants under the Fourth and Fourteenth Amendments.- Still further, see Article I, § 9, Texas Constitution; cf. Article 38.23, V.A.C.C.P.

In Evans v. State , 530 S.W.2d 932 (Tex.Cr.App.1975), and Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), this court applied the rule of Whiteley to felony arrest warrants issued by justices of the peace pursuant to sworn complaints. In those cases it was held that the complaints upon which the arrest warrants were issued did not contain sufficient information to show probable cause. The rule, however, is not limited to felony arrest warrants but applies to misdemeanor arrest warrants as well.

Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), held that municipal court clerks who were authorized by city charter to issue warrants for arrest of persons charged with breach of municipal ordinances qualified as “neutral and detached magistrates” for purposes of the Fourth Amendment, where they were removed in their work and were subject to supervision of municipal court judges. Thus, it is clear that the Supreme Court has drawn no distinction between felony and misdemeanor cases with regard to the rule discussed in Whiteley.

An examination of the complaint in the instant case reveals that it consists of nothing more than a conclusion that the appellant perpetrated the theft offense described in the complaint. The actual basis for the complainant’s conclusion is omitted from the complaint. The complaint contains no allegations that the complainant spoke with personal knowledge of the matters contained herein and did not indicate any source for the complainant’s belief, nor set up sufficient information to support an independent judgment that probable cause existed.

There being no probable cause set forth in the complaint, the arrest of appellant by capias was illegal and the search of appellant and his car was also illegal and tainted thereby. The admission into evidence of the fruits of the search was reversible error.

The judgment is reversed and the cause remanded.

ROBERTS, Judge,

concurring.

By reversing the judgment on the issue of probable cause, the majority opinion reaches the right result for the wrong reason. The majority opinion addresses the question of probable cause as though the capias had been issued after an erroneous determination of probable cause by a magistrate. This treatment ignores the crucial feature of the case: The parties seem to agree that the issuance of the capias was an automatic, ministerial act of the deputy district clerk, which involved no exercise of discretion. The question is not whether there was an erroneous determination of probable cause, for there was no determination at all.

The question is whether the constitutional prohibitions against the issuance of warrants without probable cause (United States Constitution, Amendment IV; Texas Constitution, Article I, Section 9) forbid an arrest under authority of a capias issued without a magistrate’s determination of probable cause. We should hold that such arrests (and the searches conducted incident to them) violate the state and federal constitutions.

Because the "arrest was invalid for this reason, we need not consider the appellant’s argument that the complaint failed to state probable cause. Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Coolidge held that before a reviewing court proceeds to the issue of probable cause, it must first be satisfied that the warrant was issued by a neutral and detached magistrate. The reason is that the requirement that a neutral and detached magistrate evaluate the officer’s evidence of probable cause is the “point” of the Fourth Amendment. Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948). It is “the very heart of the Fourth Amendment directive” not only that an officer have probable cause, but that he present it to a magistrate and get a warrant. United States v. United States District Court, 407 U.S. 297, 316, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972). The existence of probable cause will not excuse the failure to get a warrant from a magistrate who has made such a determination. United States v. United States District Court, supra; Coolidge v. New Hampshire, supra; Johnson v. United States, supra; Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Stoddard v. State, 475 S.W.2d 744, 749-750 (Tex.Cr.App.1972). These authorities demonstrate that, if no constitutionally valid warrant was obtained (and there was no justification for a search without a warrant), the existence or nonexistence of probable cause is irrelevant.

Several opinions of the Supreme Court of the United States indicate that it would be unconstitutional to make an arrest on the authority of a warrant issued without a magistrate’s determination of probable cause. The Court recently has delivered a dictum expressly to that effect. See Gerstein v. Pugh, 420 U.S. 103, 118, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), discussed below.

In Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927), a bench warrant issued when the United States attorney filed an information. The affidavits supporting the information were defective. The Court held that the arrest on the warrant violated the Fourth Amendment. In part I of Coolidge v. New Hampshire, 403 U.S. 443, 449-453, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court held that a search warrant may be issued only by a neutral and detached magistrate, and that a prosecutor is not such a magistrate. Compare Mancusi v. DeForte, 392 U.S. 364, 371, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). (I note that, if the county clerk automatically issues a capias when the prosecutor files an information and complaint, then the Texas prosecutor effectively determines when this writ shall issue.) In Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), the Court held that a municipal court clerk who was an employee of the judicial branch subject to the judge’s supervision, and who was not connected with police or prosecution, and who was competent to make the determination, could function as a magistrate and determine whether complaints showed probable cause for the issuance of an arrest warrant. From these holdings, and from the constitutional provisions cited above, we can state the constitutional requirements for the issuance of an arrest warrant when a misdemeanor prosecution is instituted: A neutral and detached magistrate who is competent to make the determination must determine from the complaint that there is probable cause to issue the warrant.

A system which allowed a court to issue an arrest warrant solely on the filing of the prosecutor’s information once existed in the Philippine Islands, and it was upheld in Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914). But “the result reached in Ocampo is incompatible with the later holdings of Albrecht, Cool idge, and Shadwick.” Gerstein v. Pugh, 420 U.S. 103, 118, 95 S.Ct. 854, 865 fn. 20, 43 L.Ed.2d 54 (1975) (dictum).

The issuance of the capias in this case was essentially identical to the issuance of the arrest warrant in Ocampo, supra. As the holdings discussed above imply, and as the dictum in Gerstein, supra, expressly states, the Fourth Amendment will not countenance an arrest based upon a warrant which issues automatically without a determination of probable cause by a neutral and detached magistrate. A result which upholds the procedure by which the capias issued in this ease is equally incompatible with the constitutional doctrines that I have discussed above.

I pause at this point to address a problem of terminology. A capias is not a “warrant of arrest,” as defined in V.A.C.C.P., Article 15.01, and the person who is seized when a capias is executed is not “arrested” within the meaning of V.A.C.C.P., Article 15.22. But the statutes stated explicitly that a capias is a writ that orders, and is executed by making, an arrest. See V.A.C.C.P., Articles 23.01, 23.02(2), 23.05, 23.06, and 23.10 through 23.17. For the purposes of our constitutional considerations, there is no substantive difference between an arrest warrant and a capias. My references to “warrants” include both the “warrant of arrest” and the “capias.”

“A ‘capias’ is a writ issued by the court or clerk, and directed ‘To any peace officer of the State of Texas’, commanding him to arrest a person accused of an offense and bring him before that court immediately, or on a day or at a term stated in the writ.” V.A.C.C.P., Article 23.01. In felony cases, the statutes clearly state who issues the capias and when it issues: “A capias shall be immediately issued by the district clerk upon each indictment for felony presented . . . .” V.A.C.C.P., Article 23.03(a). In misdemeanor cases, the statutes say only that, “In misdemeanor cases the capias or summons shall issue from a court having jurisdiction of the case.” V.A.C.C.P., Article 23.04 (in pertinent part). The statute leaves open the question of what showing must be made for the issuance of a capias in a misdemeanor ease, and the possibilities that the capias in a misdemeanor case may be issued only by the court, or by either the court or the clerk.

We must keep in mind the rule of statutory construction that when two interpretations are possible, one constitutional and the other not, the constitutionál interpretation must prevail. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968). There is no indication that the Legislature intended to authorize any of the unconstitutional procedures which we have discussed. We should avoid such unconstitutional procedures by our construction of the capias statutes.

If there is any indication of legislative intent, it is this: A capias may be issued by the court or clerk. V.A.C.C.P., Article 23.-01. In felony cases, the clerk shall issue the capias. V.A.C.C.P., Article 23.03(a). If the Legislature intended that the clerk also should issue automatically a capias in misdemeanor cases, there would have been no purpose in authorizing the court to issue a capias.

Therefore, we should hold that the capias statutes (V.A.C.C.P. chapter 23) do not authorize a clerk to issue a capias merely on the filing of a complaint and information which charge a misdemeanor offense; a neutral and detached magistrate who is competent to make the determination must determine from the complaint that there is probable cause to issue a capias for an arrest. The standard of probable cause must be the same as is required for a warrant of arrest. See Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

We also should hold that it is a violation of the United States Constitution, Amendments IV and XIV, and the Texas Constitution, Article I, section 9, for a person to be arrested on the authority of a misdemeanor capias that issued without a determination of probable cause by a neutral and detached magistrate. Consequently, searches and seizures that are conducted incident to such arrests would be unconstitutional, and evidence obtained thereby might not be admitted at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); V.A.C. C.P., Article 38.23.

The question of whether a county clerk (or his deputy) can act as a neutral and detached magistrate in determining probable cause is not before us, for no such action was attempted in this case. Also not before us is the question of whether a capi-as may issue in a misdemeanor case, without a determination of probable cause, to continue the confinement of a defendant who already has been arrested properly under V.A.C.C.P., chapter 14 or 15. The validity of the felony capias also is not questioned.

Neither the majority opinion nor my opinion would affect the requisites of affidavits, complaints, and informations to support a prosecution. A misdemeanor conviction will not be reversed because no magistrate determined probable cause before the complaint and information were filed. Tarlton v. State, 578 S.W.2d 417 (Tex.Cr.App.1979). The standards of probable cause to issue a warrant are different from the standards of notice in a charging instrument. Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967).

I concur in the result.

      . The holding today should not be confused with those cases which hold that the requisites of an affidavit or complaint or a complaint and information to support a prosecution are not as stringent as the requirements of a complaint or affidavit for a search warrant or an arrest warrant by which there might be a search incident to arrest. See Wells v. State, 516 S.W.2d 663 (Tex.Cr.App.1974); Cisco v. State, 411 S.W.2d 547 (Tex.Cr.App.1967); Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967). In Chapa, this court wrote: “The purpose of the complaint is to apprise the accused of the facts surrounding the offense with which he is charged in order to permit him to prepare a defense to such charge.”

      . A felony indictment is assumed to be a conclusive showing of probable cause. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932). See Barnes v. State, 134 Tex.Crim. 461, 116 S.W.2d 408 (1938). Therefore, there is no need for a magistrate to determine probable cause. Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Gerstein v. Pugh, 420 U.S. 103, 117, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (dictum).

      . See Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972).

      . See footnote 1, supra.


text:
    Frank Edward TIMMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 56538.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      Robert E. Fitzgerald, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., and John H. Hagler, Asst. Dist. Atty., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for misdemeanor theft in which the trial court assessed punishment at one year confinement in the Dallas County Jail and a fine of one thousand dollars.

After initial submission, there being no transcription of the court reporter’s notes, we abated this appeal for further proceedings in accordance with Article 40.09, § 7, V.A.C.C.P. Timmons v. State, 571 S.W.2d 197 (Tex.Cr.App.1978, unpublished). Those proceedings having been held and their record now before us, the appeal is reinstated for consideration of the asserted error.

Appellant advances one ground of error for our determination: that he was deprived of a transcription of the court reporter’s notes for inclusion in the appellate record. For reasons more fully developed below, we sustain that ground of error and reverse his conviction.

The record reflects that sentence in the instant case was pronounced on January 14, 1977 and that the appellant timely filed his notice of appeal on that same day. Contemporaneously appellant orally requested the court reporter to prepare a statement of facts. On March 3,1977, the appellant filed a designation of material to be included in the appellate record that itemized a request for a transcription of the court reporter’s notes. Appellant’s counsel received notice of June 22, 1977 that the record was complete, waiving formal certified mail notice of such completion under the provisions of V.A.C.C.P., Article 40.09(7). This waiver, and the similar acknowledgment and waiver of the prosecutor, are the last pages in this record that evidence the county clerk’s file mark with the corresponding date of filing.

Included in the record is an objection to the appellate record, filed by appellant’s counsel, based on the failure of the district clerk to include a transcription of the court reporter’s notes, and the trial court’s order approving the record and directing the filing of briefs. This order is dated July 12, 1977.

Pursuant to the directive of this Court, the trial court held an evidentiary hearing on January 19, 1979 and heard the sworn testimony of appellant’s counsel and the court reporter who had taken down the testimony in appellant’s trial. It established that appellant’s counsel first contacted him to request a transcription of his notes sometime in late January; that appellant’s counsel made at least three different attempts to get a copy of the statement of facts from the court reporter and was told on each occasion by the court reporter to get an extension of time in which to perfect the appellate record, and that the court reporter did not in fact tell appellant’s counsel that the notes of the trial proceeding were lost until the last week in June. The court reporter testified that he had made every effort to find his shorthand notes of appellant’s trial proceeding and that he had exhausted all means of attempting to locate them.

Indeed, the State established beyond any doubt that the court reporter’s notes simply do not exist As early as six months before any objection to appellate record was filed, the court reporter had been put on notice that a transcription of his notes was required. Whether he knew that he had lost his notes at that time we are not advised, and in all fairness it cannot be maintained that appellant and his counsel bear any responsibility for their disappearance. Regardless of whether his objection to the record was timely filed, it is now clear that appellant did everything in his power to procure the statement of facts. He made repeated efforts to obtain a statement of facts that, unknown to him, could not be produced. It is further apparent that the trial court, even with the objection before it, was powerless to remedy the problem.

It is well settled that the burden is on an appellant to establish that he had been deprived of his statement of facts. Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223, 224 (1953). To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant must show due diligence in requesting it and that failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches, or other fault on the part of the appellant and his counsel. Randolph v. State, 155 Tex.Cr.R. 432, 234 S.W.2d 235 (1950); Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479 (1933); Roberts v. State, 62 Tex.Cr.R. 7, 136 S.W. 483 (1911). Indeed, the circumstances in such cases should be viewed from the appellant’s standpoint, Young v. State, 172 S.W.2d 500 (Tex.Cr.App.1943), and any reasonable doubt is resolved in favor of the appellant. Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225, 228 (1940).

We find, from the whole record before us, that the appellant has demonstrated that he has in fact been deprived of a statement of facts without fault on his part and that he exercised all of that due diligence as required by law. He is therefore, entitled to a reversal of the judgment against him. Hartgraves v. State, 374 S.W.2d 888, 890 (Tex.Cr.App.1964); Ex Parte Hooper, 166 Tex.Cr.R. 189, 312 S.W.2d 673 (1958); Seliger v. State, 139 Tex.Cr.R. 26, 138 S.W.2d 817 (1940); Brannan v. State, 137 Tex.Cr.R. 611, 132 S.W.2d 594 (1939); McNabb v. State, 137 Tex.Cr.R. 463, 132 S.W.2d 273 (1939); Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479 (1933).

The judgment is reversed and the cause is remanded.

      .Omitting the formal parts, the information charged that the appellant did:
      . intentionally and knowingly appropriate property other than real property, to wit: current money of the United States, of the value of at least $20.00 but less than $200.00, without the effective consent of Thomas Patrick Connelly, the owner thereof, and with intent to deprive the said owner of said property.”
      In applying the law to the facts in its charge, however, the court instructed:
      “Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Frank Edward Timmons on our [sic] about the 4th day of March, 1976, in the County of Dallas, and State of Texas, as alleged in the information did then and there unlawfully, acting either alone or with one or more persons, exercise [sic] appropriate property, other than real property, to wit: current money of the United States of the value of at least $20.00 but less than $200.00 without the effective consent of Thomas Patrick Connelly, the owner thereof, and with intent to deprive Thomas Patrick Connelly of said property, you will find the defendant guilty of a Class ‘A’ Misdemeanor as charged in the information, and you will make no fínding in this verdict as to punishment.”

      We note that although the instant charge omits the words knowingly and intentionally as alleged in the indictment and would at first blush suggest a failure to include in the charge all of the essential elements of the offense as alleged in the indictment, no objection to the charge was proffered at trial. Given our disposition of appellant’s sole ground of error, we do not reach and therefore express no opinion on the issue of whether this omission in the instant charge constitutes fundamental error in the absence of an objection below.
      We further note that the trial judge, in applying the law to the facts, charged the jury, during the guilt or innocence phase of the proceedings, as to the punishment range for the charged offense in a situation where the appellant had already elected to go to the court for punishment in the event of a conviction. The charge is objectionable not only on the ground that punishment was not at issue during this phase of the trial but on the ground that even with a guilty verdict being returned, it was no concern of the jury as to the punishment range, given the appellant’s election to have the trial court assess punishment.

      . Formerly, and often now more conveniently, called the statement of facts.

      . In pertinent part, the trial court “after hearing, shall enter such orders as may be appropriate to cause the record to speak the truth and the findings and adjudications in such orders, if supported by evidence, shall be final.”

      . The record reflects that the following papers included in it and in their order are neither filed marked nor time stamped:
      Appellant’s Objection to the Appellate Record Order Approving Record and Directing Filing of Appellate Briefs
      Defendant’s Formal Bill of Exception No. One Letter from Appellant’s Counsel to the Clerk Affidavit of Court Reporter Regarding his Inability to Locate his Notes in this Cause Final Order of the Court on Appeal This Court cannot, and the trial court did not attempt to, ascertain just why these documents were not in fact marked, but we again express our own dissatisfaction with omissions that create threshold issues that waste the time and effort of all concerned. See Young v. State, 86 Tex.Cr.R. 621, 218 S.W. 754 (1920). The failure of the clerk to file mark and date these documents, especially the Appellant’s Objection to the Appellate Record, has drawn valuable resources away from the real problem in the case. See footnote 5, infra.

        . It is contended by the State and, indeed, evidenced in the trial court’s finding and order, that the failure of the Appellant’s Objection to the Appellate Record to be file marked and date stamped is dispositive of this appeal. It is their position that if a document does not bear the mark of the clerk, it cannot be considered to have been timely filed. See, e. g., Anaya v. State, 292 S.W.2d 108 (Tex.Cr.App.1956). Yet it is well settled that the lack of a file mark and a date stamp is not determinative of timely filing when it is shown that it was delivered to the clerk within the required time, as where it appears that the paper was in fact filed in time but that the clerk, through oversight of inadvertence, neglected to place a file mark on it. Monroe v. State, 101 S.W. 214 (Tex.Cr.App.1907); Campbell v. State, 57 Tex.Cr.R. 301, 123 S.W. 583 (1923); Young v. State, 86 Tex.Cr.R. 621, 218 S.W. 754 (1920). Additionally, the final page of the instant original record reflects in pertinent part, the following:
      I, L. E. Murdoch, County Clerk and Clerk of the County Criminal Court of Dallas County, Texas do hereby certify that the above and foregoing 60 pages contain a true and correct copy of all the proceedings had and done in Cause No. 76-619 STYLED: THE STATE OF TEXAS V. FRANK EDWARD TIMMONS as same appears on file and of record in my office.
      The certificate bears the signature and seal of the deputy county clerk, Mrs. Ira B. Griffin. This certification, and the place in which the objection appears — preceding order approving the record — taken together with the testimony adduced at the evidentiary hearing, compel us to hold that the Appellant’s Objection to the Appellate Record was in fact timely filed. The State presented no evidence tending to rebut the testimony of appellant’s counsel, as well as the circumstantial evidence of timely filing gleaned from the clerk’s certification of this record, that the objection was in fact timely filed.

      .All emphasis is supplied throughout by the writer unless indicated otherwise.

      . Two such motions for extension of time in which to complete the record were in fact filed and granted by the trial court.

      . No effort was made to call Mrs. Griffin, the clerk to whom the objection had been personally handed, and who, in turn, compiled this appellate record.


text:
    Tereso Talmantes JUAREZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56674.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 19, 1979.
    Bill Alexander, Odessa, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

From an assessment of punishment of fifty years confinement for delivery of heroin, appellant presents six grounds of error. We need to consider only one ground, however, since it is dispositive of this appeal.

Ground of error two is:

“The district court erred in admitting into evidence the money seized under a search warrant which was procured from the magistrate through purposive (sic) misrepresentations in violation of appellant’s rights under the Fourth Amendment to the Constitution of the United States and Article I, Sections 9 and 10 of the Texas Constitution.”

The money referred to is $250.00 in currency, whose denominations and serial numbers were recorded by peace officers who then gave the money to one Danny Matta. Mat-ta was at the time acting as a “cooperating individual” to make a case against appellant for delivery of heroin. Some two weeks earlier Matta had been arrested and charged with four counts of delivery of heroin to an undercover agent; his wife was also arrested and charged with one count. In an effort to “alleviate a little of the pressure of the situation that he was in,” as one witness put it, Matta initiated, negotiated and entered into a plea bargain with the district attorney that in consideration of certain actions to be taken and recommendations to be made by the prosecutor he, for his part, would make a buy of heroin from appellant.

In September 1976, appellant resided in Barstow, Ward County, Texas. Matta resided in Pecos, Reeves County, Texas, as did Wendell Taylor, then an investigator for the district attorney for the 143rd Judicial District. The undercover agent was Gary Steven Howard, also then a district attorney investigator for the 143rd Judicial District who was then staying at one or another motel in Pecos. Howard was Matta’s “control” agent. Matta had known appellant for about five years and had worked on the same job with him. The plan devised was that Matta would contact appellant at his home in Barstow and try to arrange a purchase of heroin — all the while Taylor would have the residence of appellant under surveillance from the vantage point of a nearby mobile home and Matta would be in the company of Howard and other officers at a nearby location where Matta and his Mustang automobile would be searched thoroughly and he would be given the $250.00 in currency just before he went to call on appellant.

The operation began Saturday, September 18, 1976 when, according to his supplemental report, Taylor set up surveillance at about noon that day. Matta “believed” that he called at the home of appellant on Saturday and Sunday — the supplemental report does not show that he did — but it is clear that he went by appellant’s home on at least four occasions on Monday, September 20, beginning about 9:30 a. m. At some point during the day, Matta reported to Howard that he could make a buy for $250.00. The money was obtained and, after at least one abortive meeting on a county road during the afternoon, at about 8:00 p. m. Matta drove to the residence of appellant and, according to him, appellant drove up in his pick up; each got out of their respective vehicles, stood and talked for a few minutes and Matta exchanged $250.00 for 65 “nickel papers” of heroin in a plastic wrapper, known in the vernacular as a “ball.” Matta then returned in his automobile to the location of Howard and others where he handed over the ball and, as instructed, drove back home to Pecos.

Meanwhile, Taylor had broken off surveillance from the mobile home shortly after he discovered that his radio ceased to function; he obtained a ride to his home in Pecos and then returned to Barstow in his own automobile, but did not arrive until after Matta had returned to Howard — notwithstanding, his supplementary report states that at 8:50 p. m. “Danny Matta returned to Juarez’ home.”

It will be recalled that Investigator Howard and the officers accompanying, him were at a location where they could not observe appellant’s house or near approaches to it. Thus, when Matta returned to that location the last time he was the only person in the state’s group who knew what he had actually done during the 15 minutes or so that he was out of the sight of every officer. Howard testified that when Matta handed him the ball a search of his person demonstrated that Matta did not still have the $250.00 in currency with him but, as Howard also admitted, “At that point I couldn’t, it would be impossible for me to say what happened to it.”

The problem thus confronting Howard and his associates became obvious: Unless they could prove that the $250.00 in currency was possessed by appellant either on his person or in his house, the case they had been working so hard to make against appellant was weak indeed, resting as it did primarily upon the testimony of the ubiquitous Danny Matta.

During a pre-trial proceeding before the second trial, in his argument to the court the district attorney pinpointed what was generally believed to be true at that time:

“And, as far as trying to get the search warrant for money, of course, that would be evidentiary and couldn’t do it anyway. But certainly if you have a search warrant for heroin, and you discover some stolen property or what have you, you can certainly pick it up during the search for the heroin.”

Accordingly, a search warrant was obtained, as Taylor conceded at one point, “To find any contraband that we could find plus the marked money.” The warrant was issued late Monday night or early Tuesday morning, upon an affidavit reading in pertinent part:

“On this day Danny Matta purchased a narcotic drug, to-wit: Heroin in the suspected place and the money for the purchase was supplied to Danny Matta by the undersigned and further that Affiant has had the suspected place under surveillance for the past 48 hours and has seen heavy traffic at said location including known and suspected drug users and dealers.
Further affiant says that the informant, Danny Matta, told the affiant that the suspected party was keeping and possessing a quantity of heroin inside of the said suspected residence. That Danny Matta told the affiant as an junderlying (sic) circumstance supporting this conclusion that informant has been inside of said residence within the past twenty-four hours and has observed the said suspected party keeping and possessing heroin.
That the affiany (sic) has known the informant, Danny Matta, for a number of years. That during this period of time the informant, Danny Matta, has given the affiant information on more than one occasion about violations of the Texas Controlled Substance Act. That the affi-ant has always checked this information supplied by the informant and has proved it to be true and correct. That the informant has also supplied the affiant with the information that has allowed the affi-ant to arrest individuals for violations of the Texas Controlled Substance Act. That the affiant . . . ran the surveillance described above, beginning September 18, 1976.”

Prom the first pre-trial through the mistrial, the second pre-trial and during the second trial, appellant stoutly challenged the validity of the search warrant and the underlying affidavit on nearly every conceivable basis, particularly attacking the veracity of many statements in the affidavit. All motions and objections were overruled but, as indicated in the footnote in the margin below, the trial court permitted appellant to perfect a full bill even though at one point the district attorney, noting his own effort to be patient, expressed the thought that “we are going beyond the search warrant” rather than “to look at the warrant on its face.” When he completed his bill of exceptions appellant reurged and renewed all his objections which the trial court overruled.

Of course, all of these proceedings predated Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) in which the Supreme Court held that the “four corners” rule in Delaware impinged on Fourth Amendment protections in precluding every challenge to veracity of sworn statements in an affidavit for search warrant. This Court has recently applied the holding of Franks v. Delaware retroactively to an affidavit for search warrant executed in June 1976, Ramsey v. State, 579 S.W.2d 920 (Tex.Cr.App.1979), and, because the trial court there did not hold an evidentiary hearing on allegations that the affidavit contained a falsehood, reversed the conviction and remanded the cause. In the case before us now, however, exhaustive hearings were held at the pre-trial stage as well as on bill of exceptions during the course of the trial, and the trial court ruled implicitly in accordance with the law as it then existed that the sufficiency of a statement of probable cause in an affidavit for a search warrant is determined from the four corners of the affidavit.

With Franks v. Delaware, however, the rule to be followed and the test to be applied are:

“. . . where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”

Accordingly, the hearings having been held and the allegations overruled, we examine the record to determine whether the Franks v. Delaware test was met.

First, we note that in the affidavit “suspected place” or “suspected residence” refers to a dwelling house in charge of and controlled by appellant. The first statement in the probable cause portion of the affidavit is one of direct fact, without attribution to any other source: “On this day Danny Matta purchased a narcotic drug, to-wit: Heroin in the suspected place . . ” That statement, as already demonstrated, is patently false on at least two points: First, Taylor, having recanted his earlier testimony about being on surveillance and observing the alleged transaction at 8:50 p. m., did not have the personal knowledge to make the factual statement. Secondly, the only evidence as to the situs of the purchase came from Danny Matta, himself, and he said it occurred in front of the residence as they stood by and between their respective motor vehicles.

The second factual statement in the first sentence of the affidavit, again without attribution to any source, is “the money for the purchase was supplied to Danny Matta by the undersigned . . . ” Investigator Howard testified on the bill of exception:

“Q: Who gave the money, the $250.00 that you are prepared to testify that you discovered in the house, who gave that money to Danny Matta?
A: I did.
Q: If Officer Taylor swore to the magistrate that he, that the money for the purchase was supplied to Danny Matta by the undersigned, did you see him give that money to Danny Matta?
A: Mr. Taylor did not give the money to Danny Matta.”

The third statement in the first sentence is also a personal report by Taylor of his surveillance during which he claims to have seen “heavy traffic at said location including known and suspected drug users and dealers.” Since his supplemental report of comings and goings did not identify anyone other than appellant, his brother and Matta, Taylor was asked to give the names of “suspected drug dealers and users,” and, after naming one, he admitted he couldn’t “call names” because he did not recognize them, and then retreated to the following position:

“Q: Now, it’s your testimony then that you just saw other people coming and going?
A: I just said ‘suspected,’ too. That’s all I said.
Q: Everybody that went in that house, of course, then was suspected?
A: Yes, sir.”

The next paragraph in the probable cause portion of the affidavit claims that Danny Matta “told the affiant that said suspected party was keeping and possessing a quantity of heroin inside of the said suspected residence” and that the circumstance supporting “this conclusion” is that Danny Matta said he “has been inside of the said residence within the past twenty-four hours and has observed the said suspected party keeping and possessing heroin.” As to this, affiant Taylor himself testified:

“Q: Did Danny Matta tell you that that he had been in that house prior to the 24 — hour period that preceded the arrest or the warrant?
A: I don’t know whether he told me, but between all the Officers we discussed it.
Q: You swore on your oath that Danny Matta told you that he had been in that house in that 24-hour period. Now, my question to you is: Did he tell you that, or did he not tell you that? Or do you know?
A: Sir, I couldn’t be for sure he told me personally.”

Matta testified:

“Q: Did you tell Officer Taylor that at any time prior to the time that you alleged he gave the stuff to you, that you had seen him in possession of any heroin, either out there on the road, out there around the road, or in the house?
A: I don’t remember telling him that I had seen him in possession. I knew that he had . .
******
Q: And you never did see any heroin in this house, did you?
A: No sir, I didn’t.
******
Q: . . Did you ever tell anybody that you had seen that day, either Saturday or Sunday or Monday, any heroin in Tito Juarez’ and Gloria Juarez’ house?
A: No, sir, I didn’t.
Q: And if Officer Taylor says that you told him, that you had seen Teto Juarez keeping and possessing heroin, this was not you that told him, is that true?
A: He may have misunderstood what I said.
Q: But you didn’t tell him that, did you?
A: I said that .
Q: Excuse me you didn’t tell him that on Saturday or Sunday or Monday you had seen possession by this man of heroin in this house that we are talking about .
A: I don’t recall having said so, no.”

The last paragraph in the probable cause portion of the affidavit reports that Taylor had known Matta for a number of years and asserts that Matta had given him information about violations of the Controlled Substances Act which had been checked and proved to be true and correct and had permitted Taylor to arrest individuals for violation. This material, of course, goes to the credibility of Matta rather than the veracity of affiant Taylor. Whether one may believe Matta becomes completely irrelevant when it is shown clearly, as here, that the first paragraph is represented as a direct statement of facts from the affiant that are blatantly false, and the second paragraph that does report statements allegedly made by Matta are false in that they were never made.

We find, therefore, that appellant has established by a preponderance of the evidence that false statements knowingly and intentionally, or with reckless disregard for the truth, were included by affiant in the warrant affidavit. When we set aside, as we must, the first two paragraphs of the probable cause section all that remains are the assertions of Matta’s credibility that are completely insufficient to establish probable cause. We conclude, therefore, that the search warrant must be voided and the fruits of the search excluded.

The judgment of conviction is reversed and the cause remanded.

      . The first trial in this case resulted in a mistrial being declared by the court after Taylor, responding to a question by the prosecutor as to whether, based on a search warrant, he found any heroin in the house, answered not in the house and then gratuitously added “on the premises, we did.” During his earlier testimony in the first trial he testified as to the comings and goings of appellant that he observed:
      “The next time he left was at 8:50, right after 8:50 when Danny Matta pulled up in front of his house. When Danny drove off, Tito drove off behind him. I’d say 8:55 or something.”
      And then in describing the occasions when Matta appeared at the residence he also represented that Matta came back at about 8:50 p. m., stayed approximately 5 minutes, did not go in the house but talked to appellant and related the following testimony:
      “Q: Where they were standing if you could see them when they had their conversation, any conversation they might have had?
      A: The pick up was standing in front of the house, and Danny drove up in front of the house, and they were between the car and the pick up.
      Q: And did you ever lose visual contact of Danny Matta and Tereso T. Juarez after Danny drove up to the house?
      A: No, I didn’t.
      * * * * * *
      Q: And what . . could you observe that Juarez and Matta were doing while they were standing there in front of the Juarez’ house together?
      A: They talked there like I said for a minute or two, and then it looked like there was some kind of exchange was going on, but I couldn’t actually see what did happen.
      * * * * * *
      And then after their conversation was apparently over, what happened then? O'
      Danny got into the car and went ahead and turned and went north. <

      * sfc * 4s * *
      What did Tereso T. Juarez, Jr. do?
      He went and got in the pick up and went north.
      # >fs * 5‡! Sf!
      How far did you observe him?
      When I saw him leave, then I turned around and was on the radio trying to talk to the officers to tell them that Danny had left .
      And now while you were there at this location under surveillance, when you began the surveillance, did your have you car or vehicle there? O'
      No, I didn’t.
      ******
      How were you picked up, or how did you get away from your surveillance after you observed Danny Matta and Tereso T. Juarez leave the Juarez’ residence? O'
      I called my compadres to pick me up when they could.
      Who came and picked you up? O'

        A: Mr. Halliburton.

      Q: What did you do then?
      A: I went and got my car.
      Q: Where was your car located?
      A: Pecos.”
      At the second trial Taylor was questioned adversely on voir dire in reference to the search warrant question when the following occurred:
      “Q: Alright, your records showed that the original delivery of heroin was observed by you about 8:30, is that correct?
      A: I believe that’s right.
      Q: It showed that at nine o’clock the heroin was given to the DEA and the other officers by Danny Matta, the informant . is that correct?
      A: That record I put said eight fifty.
      Q. Alright.
      MR. HOLCOMBE: Excuse me . . . we’ve got to interject here. I was not involved in this situation, and I was not going to put this evidence on in the case in chief, but I discovered it different in the meantime, and I’m going to ask Mr. Taylor right now to tell you that is not correct. He did not see a transfer. He not there at 8:50.
      WENDELL TAYLOR: That’s correct.

      . In his ground of error V appellant contends that the date of the warrant and the jurat to the affidavit were “misdated,” since he views the evidence as nearly conclusive that they were done on the 21st rather than the 20th. In view of our disposition in this case, however, we need not and do not address that matter.

      . A different judge presided over the second pre-trial and trial. At the beginning of the second pre-trial appellant reurged all previous motions but the judge understandably announced that the court would affirm all decisions and rulings made at the first pre-trial. However, the court made it clear to appellant that he had the right “to go into anything in any of your motions that you have pending here at this time.” Accordingly, among others, appellant presented a second motion to suppress and was permitted to examine and interrogate adversely Taylor as affiant to the affidavit for search warrant. After argument the court overruled the motion but stated that the motion would certainly be reconsidered as the trial progressed in the event evidence became supportive. Thereafter, when the testimony of Investigator Howard reached the point of execution of the search warrant the jury was excused and the proposed testimony of Howard was heard by the court; when it reached the point of recovering $250.00 in currency, appellant made a lengthy objection that included “for the reason that the affiant has testified that the facts given to the magistrate in the affidavit are not necessarily the facts that he says in the affidavit.” After hearing the argument the court overruled the motion and objection “in all respects” but permitted a continuing running exception and also allowed appellant at that point to make his bill of exception by further interrogating Investigator Howard, the magistrate that issued the warrant and Af-fiant Taylor. Having completed his bill appellant then reurged all of his objections and the court “respectfully overrules all your motions” with a continuing running exception.


text:
    Robert BANKS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 57920.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      Charlie C. Williams, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Robert A. Moen, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for aggravated rape in which the trial court assessed punishment at fifty years confinement in the Texas Department of Corrections, notwithstanding consideration of appellant’s sworn motion for probation.

At the outset, we are confronted with fundamental error in the jury charge that requires reversal in the interest of justice. Article 40.09(13), V.A.C.C.P.

Omitting the formal parts, the indictment charged that the appellant did:

“. . . intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death to C-L-B-, a female not his wife and hereafter styled the Complainant, have sexual intercourse with the Complainant and without the consent of the Complainant.”

In applying the law to the facts in the jury instructions, however, the court charged:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of January, 1977, in Harris County, Texas, the defendant, ROBERT BANKS, JR., did then and there unlawfully and without the consent of C-L_ B_, a female, have sexual intercourse with the said C-L_ B_, and that the said C_ L_ B_, was not then and there the wife of the said defendant, and that the defendant used force on C_L_B_on the occasion in question and that it was such force as to overcome such earnest resistance as might reasonably be expected under the circumstances at the time, and that the defendant used threats to C-L_ B_, and that they were such threats as would prevent resistance by a woman of ordinary resolution, and that the defendant, compelled submission to the rape by threat of death or serious bodily injury to be imminently inflicted on her, then you will find the defendant guilty as charged in the indictment.”

Appellant was charged with aggravated rape under § 21.03(a)(2), V.T.C.A. Penal Code which provides:

(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code . . . and he:
(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.

Though the statutory language of § 21.03, supra, does not prescribe a culpable mental state, it is clear that a culpable mental state is required given the thrust of V.T.C.A., Penal Code § 6.02(b) and (c) which provides:

(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.

It therefore follows that a culpable mental state is an essential element of the offense of aggravated rape under the ambit of Subsection (b) of § 6.02, supra, and further that the culpable mental state prescribed is one of knowledge and intent under the ambit of Subsection (c) of § 6.02, supra. As an essential element of the offense charged, this culpable mental state must, therefore, be alleged in the indictment. V.T.C.A., Penal Code § 1.07(a)(13).

The indictment here properly alleged the culpable mental state as an essential element of the offense, however, the court’s charge to the jury omitted this same essential element. This failure to include in the jury charge all of the essential elements of the offense as alleged in the indictment constitutes fundamental error. Thompson v. State, 574 S.W.2d 103 (Tex.Cr.App.1978); West v. State, 572 S.W.2d 712 (Tex.Cr.App.1978); Long v. State, 548 S.W.2d 897 (Tex.Cr.App.1977).

For the error in this respect, the judgment of conviction is reversed, and the cause is remanded.

      . All emphasis is supplied throughout by the writer unless indicated otherwise.

      . See Morrison and Blackwell 7 Tex.Crim. Forms, § 6.09 at 44 (8th ed.); see also, Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977).

      . See Morrison and Blackwell, supra, § 95.02, at 296.