author: ODOM, Judge. ONION, P. J.,

text:
    Alford RHODES, Appellant, v. The STATE of Texas, Appellee.
    No. 56119.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 18, 1978.
    Appellant’s Motion for Rehearing Denied Feb. 8, 1978.

      Holt, Tatum & Meehan, Nacogdoches, for appellant.
    Herbert B. Hancock, Dist. Atty., Nacog-doches, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

On February 5,1974, appellant waived his right to trial by jury and entered a plea of guilty before the court to an indictment which charged him with the offense of theft of corporeal personal property of the value of over Fifty Dollars ($50.00), a violation of Articles 1410 and 1421, Vernon’s Ann.P.C. (1925). Punishment was assessed at imprisonment for five (5) years; however, the imposition of sentence was suspended and appellant was placed on probation. A judgment was entered reciting that appellant “pleaded guilty to the offense charged in the indictment,” and that it was “ORDERED, ADJUDGED, and DECREED by the Court that the defendant is guilty as charged in the indictment in this cause and as confessed by the Defendant in the plea of guilty herein made,” etc.

On March 1, 1977, the State filed a motion to revoke appellant’s probation. That motion alleged that appellant had violated his probation in that, on or about February 25, 1977, he unlawfully drove and operated a motor vehicle on a public road and highway while he was intoxicated and under the influence of intoxicating liquor.

On March 24,1977, the trial court, after a hearing, revoked appellant’s probation, finding that he had violated his probation in the manner alleged in the State’s motion to revoke. On the same date the trial court, with all parties being present, entered an order correcting the original judgment nunc pro tunc to reflect that appellant had been convicted of the offense of “theft of property of the value of fifty dollars or more.”

On this appeal appellant does not challenge the trial court’s finding that appellant violated his probation in the manner alleged. However, he does contend that the trial court abused its discretion in revoking his probation for the reason that the original judgment of conviction did not recite whether appellant was convicted of felony theft or misdemeanor theft; that the defect in the original judgment was fundamental and could not be corrected by a nunc pro tunc entry as attempted by the court; and, that the trial court abused its discretion “by permitting revocation even if a nunc pro tunc hearing was permitted for the reason that such correction occurred after the date of the alleged violation and such judgment would only be valid from the date of the correction if the court had such authority to correct.” We overrule these contentions.

The case of Hughes v. State, 493 S.W.2d 166 (Tex.Cr.App.1973), is dispositive of appellant’s contentions. There we stated:

“The indictment may be considered in construing the judgment and sentence in order to determine the offense for which an accused is convicted. The judgment may be reformed so as to show the offense of which the accused was found guilty by the court and jury. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777; Beebe v. State, 99 Tex.Cr.R. 638, 271 S.W. 97.
“A judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked. Barker v. State, 169 Tex.Cr.R. 277, 334 S.W.2d 182; Ex parte King, supra.”

The indictment in the instant case charged appellant with the offense of theft of corporeal personal property of the value of over fifty dollars. The original judgment of conviction recited that appellant had been found guilty “as charged in the indictment.” Considering the indictment in construing the original judgment in this cause, we find it adequate to show that appellant was convicted of the offense of theft of corporeal personal property of over fifty dollars. No reversible error is shown.

We next consider as unassigned error in the interest of justice under Art. 40.09(13), Vernon’s Ann.C.C.P., the question of the sufficiency of the original indictment. The indictment alleged that the property stolen was “wall paneling of the value of over Fifty ($50.00) Dollars.” Appellant did not attack the indictment in the trial court in any manner, nor does he question the sufficiency of the indictment in this Court.

Prior to amendment in 1975, Article 21.09 Vernon’s Ann.C.C.P., provided:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. . . ”

In Willis v. State, 544 S.W.2d 150 (Tex.Cr.App.1976), we held that a theft indictment which was drawn under V.T.C.A., Penal Code Sec. 31.03, was fundamentally defective because it described the property allegedly stolen only as “merchandise.” We turn first to the cases cited in Willis as authority.

In Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), the description of stolen property in a theft indictment as “barbed wire” was held insufficient. It should be noted, however, that in Moore the trial court had overruled a motion to quash. Likewise, in Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971), it was held that an indictment, which alleged that the defendant stole “tires of the value of over $50.00,” was “fundamentally” defective and that the trial court erred in overruling a motion to quash.

In Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43 (1959), a theft indictment alleged the stolen property to be “seed of the value in excess of $50.” On original submission the Court noted that there was no motion to quash the indictment and stated that “the failure to describe the seed alleged in the indictment is not of such nature as would require a reversal when raised for the first time on appeal.” On appellant’s second motion for rehearing it was concluded that the description of the property contained in the indictment was insufficient to meet the requirements of Article 403 (now Article 21.09), V.A.C.C.P.

In Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817 (1951), a theft indictment described the stolen property as “oil field equipment of the value of over $50.00.” This description was held to be “fatally” defective.

Howk v. State, 138 Tex.Cr.R. 275, 135 S.W.2d 719 (1940), involved a complaint and information for swindling. There the property was described as “personal property of the value of six dollars.” This Court held the pleadings defective; however, the opinion does note a motion to quash those pleadings.

In the case of Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040 (1934), an embezzlement indictment was held “fatally” defective. There the indictment described the property as “certain lubricating oil.” However, no mention was made as to whether the indictment was challenged prior to trial.

Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095 (1920), involved a swindling indictment. Although the indictment was said to contain a “fatal” defect on other grounds, the Court did hold that, “against a motion to quash,” property described as “the furniture and equipment” was insufficient. The Court cited with approval the case of Mathews v. State, 39 Tex.Cr.R. 553, 48 S.W. 189 (1898).

Mathews was a conviction for cattle theft that was reversed on motion for rehearing. On original submission, Mathews v. State, 39 Tex.Cr.R. 553, 47 S.W. 647 (1898), the conviction was affirmed over the defendant’s contention that the indictment failed to allege an offense against the law and failed to allege the theft of any specific property from any person. The indictment charged appellant with the theft of “on cattle.” Although the defendant did not challenge the indictment prior to trial, he did challenge it in a motion for new trial. This Court treated the word “on” as sur-plusage and held that the indictment was good as against a motion in arrest of judgment. On rehearing the Court held that “cattle” was an insufficient description of the property and reversed. The Court stated:

“But we know of no case in this state that holds an indictment sufficient which does not in some way designate the number of things or animals alleged to have been stolen; and we hold that, if any case could be found, it would not be supported by authority.”

Summarizing these cases decided under Art. 21.09, supra, and its prior enactments, we see that five were reversed because motions to quash were improperly overruled, five were reversed in the absence of a motion to quash for fundamental defects in the property descriptions, and one was affirmed.

Some of the statements from these cases quoted above suggest an inconsistency in the need for a motion to quash for a defect under Art. 21.09, supra. (Contrast Oakley on original submission, Donahoo, and Crawford, all supra, with Mathews, the early Scott, Leos, Oakley on second rehearing, and Willis, all supra.) An examination of Art. 21.09 in its context in the Code of Criminal Procedure may prove helpful in resolving this apparent inconsistency.

This article is one of several in Chapter 21 of the Code that provide rules for allegations of particular matters. Other articles in that chapter express general requirements for alleging an offense.

The requisites of an indictment are listed in Art. 21.02, Vernon’s Ann.C.C.P., number 7 of which provides, “The offense must be set forth in plain and intelligible words.” In American Plant Food Corp. v. State, 508 S.W.2d 598, the Court considered the corresponding requisite for informations found in Art. 21.21(7), V.A.C.C.P. We find the holdings in that case with respect to infor-mations and the need for a motion to quash are also applicable to indictments.

“If the charge alleges an offense was committed by the defendant, then it is sufficient in law to support a verdict of guilty if one be rendered thereon. If it does not so allege, then it is utterly insufficient and any conviction based thereon is void.1 A void conviction may
“1. It will also be observed that any defect in the matters set forth in the other provisions of Article 27.08 [V.A.C. C.P.] also go to the very sufficiency of the indictment or information to support the particular conviction based thereon. It is this quality of the sufficiency of the State’s pleading as a matter of law to support the conviction that makes the deficiency one of substance. [End of footnote.]
“be challenged at any time and thus an exception to the substance of the State’s pleading, as set forth in Article 27.08, supra, may be raised for the first time on appeal.” American Plant Food, supra, at 603.

Regarding the specific requirements of requisite 7 (substantially the same for indictments under Art. 21.02, supra, as for informations under Art. 21.21), the court in American Plant Food, supra, recognized that a deficiency may be of substance under Art. 27.08(1), supra, or of form under Art. 27.09(2), according to the degree:

“Unless the deficiency under Article 21.21(7) [or Art. 21.02(7)], supra, be of such a degree as to utterly fail to charge that an offense against the law was committed by the defendant (cf. Art. 27.08(1), supra), then it is objectionable only as to form and not as to substance.” Id., at 602.

This matter of the degree of deficiency referred to in general terms in American Plant Food is equally appropriate regarding claimed deficiencies in the description of property under Art. 21.09, supra. This line of demarcation between defects of substance and those of form explains why some descriptions of property are fundamentally defective and others must be challenged by motion to quash. Of course, any inconsistencies on this point in cases decided before American Plant Food, supra, were resolved by our holding therein that objections to the indictment for failure to give notice, as contrasted with jurisdictional defects, must be raised by motion to quash. An examination of the two cases decided after Amer-ican Plant Food demonstrates proper application of these principles. These cases are Willis v. State, 544 S.W.2d 150 and Moore v. State, 532 S.W.2d 333.

In Moore, supra, we reversed because the trial court “erred in failing to grant the motions to quash the indictment” for felony theft in which the property was described as, “barbed wire of the value of over fifty dollars, the same then and there being the corporeal personal property of and belonging to Morris Peterson.”

In Willis, supra, a theft indictment was held fundamentally defective in the absence of a motion to quash. The property was described simply as “merchandise.”

“Merchandise” is so general and non-descriptive as to constitute no allegation of the property at all. It could as well have alleged merely “property.” “Wall paneling” (alleged in the instant case) on the other hand, while not as detailed a description as is required by Art. 21.09, supra, is, nevertheless, sufficient to allege that element of theft for purposes of invoking the jurisdiction of the trial court. Thus, while subject to a motion to quash, it is not fundamentally defective. As in American Plant Food, supra, if found insufficient by the defendant to give him notice, it would be his duty to voice such objection by motion to quash. Compare, Drumm v. State, supra.

Automatic reversal is no more necessary to vindicate a complaint that an indictment does not comply with Article 21.09, supra, absent a timely and proper objection, than it is to review a search or confession question without objection. Moreover, the public and judicial economy suffer in such cases. When a defendant, charged by an indictment that alleges an offense against the law and is regular on its face, fails to challenge it prior to trial on the ground that it does not comply with Article 21.09, supra, it can safely be assumed that he found it to his satisfaction and knew what he was charged with. To hold otherwise would be to allow the defendant to “sand bag” the judicial process by remaining silent and not calling the Article 21.09, supra, defect to the trial court’s attention, while hoping that jeopardy will bar subsequent prosecution by acquittal or otherwise. Then, if the verdict is adverse, courts would be forced to hold that the defendant had no notice under Article 21.09, supra, although he had previously voiced no such complaint. When this is contemplated it is not difficult to conceive of the judicial time wasted or the expense to the public. The law does not require such a result.

Consequently, we hold that a defect in the description of property under Art. 21.09, supra, must be raised by a motion to quash, and may not be raised for the first time on appeal, unless the description is so deficient as to be no description at all and to constitute a jurisdictional defect, as was the case in Willis, supra. The property description in the indictment in this case does not suffer from such a defect.

The judgment is affirmed.

ONION, P. J.,

concurs in the result. He would not reach the questions discussed as unassigned error.

ROBERTS, J., concurs in the result.

      . Effective June 19, 1975, this statute was amended to read:
      “If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice...."

      . Moore should be compared with Scott v. State, 543 S.W.2d 128 (Tex.Cr.App.1976). In Scott, a theft of service indictment which described the service allegedly stolen as “auto alterations” was held not to be fundamentally defective. Citing American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598, the Court noted that no motion to quash the indictment had been filed.

      . One of the cases cited in support of the position taken on original submission was Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952 (1956). In Donahoo the Court stated:
      “The appellant next complains that the complaint and information are insufficient to support a judgment. No motion to quash the information is found in the record. Reliance is had upon Mathis v. State, 113 Tex.Cr.R. 164, 18 S.W.2d 920. In that case this Court held that an information was fatally defective because (1) it did not set forth the false pretenses by means of which the property was obtained, (2) it did not allege that the false pretense was untrue, and (3) it did not describe the property acquired with certainty. So far as we can determine this is the only case which could be construed as holding that the failure to describe the property acquired with definiteness and certainty may be asserted as a grounds for reversal when raised for the first time on appeal. In Trigg v. State, 117 Tex.Cr.R. 536, 34 S.W.2d 878, we pointed out that such a question was one properly raised by a motion to quash. We are not inclined to extend the rule in the Mathis case and hold that this one defect alone is fundamental error. Unlike the offenses of theft and swindling, the amount of the check and not the value of property acquired determines the punishment applicable to the offense defined by Article 567b, V.A.P.C.”
      In Trigg, the Court held that the trial court erred in overruling a motion to quash an information that described property as “Groceries, the amount and kind unknown, and the balance in cash of the value of Fifteen and 8/100 dollars.”

      . The author of the opinion on rehearing stated that the case of Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362 (1957), caused him “great concern.” The description in Crawford was “two inch upset tubing.” The opinion notes a motion to quash, but stated:
      “We find no bill of exception to the form of the indictment in the record, and the transcript shows no exception to the overruling of the motion to quash, which, under Article 760e, Vernon’s Ann.C.C.P., is requisite to authorize this Court to consider the question without a bill of exception.”

      . Although the opinion of the Court does not so state, an examination of the Leos record shows no pre-trial challenge to the sufficiency of the indictment. In fact, no brief was filed in the defendant’s behalf. However, in its brief, the State confessed error.

      . The original papers in that cause reflect the following ruling on the motion to quash:
      “Presented on the call of the above entitled and numbered cause, and by the Court overruled.”

      . An examination of the original papers reveals no pre-trial challenge to the sufficiency of the indictment.

      . The swindling statutes quoted in Luce related to the acquisition of personal or movable property as opposed to real property. The opinion pointed out that the use of the term “furniture and equipment” indicated a distinction between the two and that the indictment furnished no data by which the court could determine whether the things designated were such as would be treated in law as fixtures or as movable property.

      . Mathews was not cited in Willis, but is cited in both Moore cases. The Willis opinion, as stated above, relied on both Moore cases.

      . See, e. g., arts. 21.05 (particular intent), 21.06 (venue), 21.07 (names), 21.08 (ownership), 21.12 (purchaser in unlawful sale), 21.13 (act done with intent to commit another offense), 21.15 (recklessness and criminal negligence).

      . Art. 21.03:
      “Everything should be stated in an indictment which is necessary to be proved.”
      Art. 21.04:
      “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”
      Art. 21.11:
      “An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; ,
      Art. 21.17:
      “Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

      . For a discussion of the jurisdictional nature of such defects whereby the indictment is void, see Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266, 268, concurring opinion.

      . Regarding the use and purpose of a motion to quash, see Drumm v. State, - S.W.2d -(Tex.Cr.App.1977); Day v. State, Tex.Cr.App., 532 S.W.2d 302, 310, opinion on rehearing, at p. 315, n. 7.

      . See Scott v. State, 543 S.W.2d 128 (Tex.Cr.App.1976).

      . See Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974). Cf. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Ronnie Lee HAYES, Appellant, v. The STATE of Texas, Appellee.
    No. 56330.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Jan. 18, 1978.

      Tom A. Boardman and Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Fred C. McDaniel and Gerry Holden, Asst. Dist. At-tys., Dallas, for the State.
    Before THOMAS G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation.

On May 4,1976, appellant waived trial by jury and entered a plea of guilty to the offense of burglary of a habitation. Appellant was given a five year probated sentence. One of the terms of probation was that appellant commit no offense against the laws of this State.

On May 13, 1977, the State filed a motion to revoke appellant’s probation in which it was alleged that:

“On or about April 8, 1977, in Dallas County, Texas, RONNIE LEE HAYES unlawfully did then and there knowingly and intentionally possess a short-barrel firearm, to-wit: a shotgun, with a barrel length of less than 18 inches.”

On May 26, 1977, the trial court, after hearing evidence, revoked appellant’s probation and imposed sentence.

Appellant contends that the evidence is insufficient to support the revocation order, in that the State failed to prove that the weapon in question was manufactured after 1899. This contention is based on the definition of “firearm” found in V.T. C.A. Penal Code, Sec. 46.01(3), which exempts from the definition “antique or curio firearms that were manufactured prior to 1899 ...”

Appellant’s contention is without merit. First, the motion to revoke alleged that the appellant possessed a short-barrel firearm, a violation of V.T.C.A. Penal Code, Sec. 46.06(a)(3). The definition of “short-barrel firearm,” V.T.C.A. Penal Code, Sec. 46-01(10), does not mention date of manufacture.

Second, even if it is assumed that the exemption of antique or curio firearms contained in the definition of “firearm,” V.T.C.A. Penal Code, Sec. 46.01(3), modifies the definition of “short-barrel firearm,” V.T.C.A. Penal Code, Sec. 46.01(10), appellant is incorrect in stating that this facet of the definition must be proved by the State. V.T.C.A. Penal Code, Sec. 46.06(d) states:

“It is an affirmative defense to prosecution under this section that the actor’s conduct was incidental to dealing with a short-barrel firearm solely as an antique or curio.”

The existence of an affirmative defense must be raised by the defendant. V.T.C.A. Penal Code, Sec. 2.04(c). It need not be negated by the prosecuting attorney. V.T.C.A. Penal Code, Sec. 2.04(b). There is nothing in the record to indicate that appellant raised this affirmative defense at the hearing.

The judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Melvin E. JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 56618.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Jan. 18, 1978.
    Dain P. Whitworth, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, for the State.

      Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

On November 13, 1975, appellant entered a plea of guilty to the offense of aggravated robbery The court assessed punishment at ten years but suspended the imposition of sentence and placed appellant on probation for ten years. On April 14, 1976, the State filed a motion to revoke probation alleging that appellant committed the offense of rape. A hearing on the motion to revoke was held on June 4, 1976, wherein the trial court found that appellant had violated the terms and conditions of his probation by committing the offense of rape as alleged. The court entered an order revoking probation and sentenced appellant to ten years.

We are confronted at the outset by appellant’s contention that the record does not contain a valid judgment as defined by Article 42.01, V.A.C.C.P.

The record contains two separate instruments which are purported to be judgments. The first instrument was styled “Judgment of Guilt on Plea of Guilty” and entered of record on November 13, 1975. It does not recite the punishment assessed as required by Article 42.01, Section 1(10), V.A.G.C.P.

The other instrument, styled “Assessment of Punishment”, was entered of record on November 26, 1975. Although lacking certain other requisites of a valid judgment, this instrument does recite that appellant’s punishment was assessed at imprisonment for ten years.

Appellant correctly cites Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976), and Richie v. State, 542 S.W.2d 422 (Tex.Cr.App.1976), for the proposition that a recital of all the requisites specified by Article 42.01, including the assessment of punishment, is essential to the validity of a judgment. In the recent decision of Ledesman v. State, 557 S.W.2d 788 (Tex.Cr.App.1977), however, we held that two separate instruments which are purported to be judgments, although filed on different days, may be construed together to satisfy the requirements of Article 42.01, supra.

Construing together the two instruments in the instant case, we find that the statutory requirements of a valid judgment have been met. In so finding we adhere to our earlier recommendations that all of the requirements for a judgment as specified in Article 42.01 be incorporated in one instrument. See Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976), and Ledesman v. State, supra.

Appellant contends the court abused its discretion in revoking probation because the evidence was insufficient to support the revocation order.

The prosecutrix testified that on the night of April 2, 1976, she and William Maddox went to an Austin nightclub with the intention of buying marihuana from Charles Bradford and Floyd Taylor. She and the three men later drove to an apartment complex. Bradford told her to get out of the car and come with him. He made her walk to an abandoned apartment where he raped her.

The prosecutrix further testified that Bradford then forced her to walk to a nearby house. Appellant, who was in the kitchen, introduced himself as “Little Red.” Bradford refused to let him talk to the prosecutrix and took her to a room. An argument between the two men ensued after which Bradford left.

The prosecutrix stated that appellant then entered the room and had sexual intercourse with her without her consent. She related that she feared him and had intercourse with him because she “didn’t have any choice.”

William Maddox testified that he, Charles Bradford, Floyd Taylor and the prosecutrix drove to an apartment complex to consummate a drug transaction on the night in question. Bradford suggested that he would go in to get the marihuana and that the prosecutrix should accompany him. When they did not return, Taylor and Maddox drove around searching for them.

Maddox further testified that he saw the prosecutrix at a convenience store the next morning. She had a disheveled appearance and had been crying. She told him that she had been raped.

Donnie Jones testified that he resided in Austin with his wife and two children. Appellant and his brothers, David and Woodrow Jones, stayed in Donnie’s house occasionally.

Jones related that the prosecutrix awoke him by pounding on his door early in the morning of April 3, 1976. She was crying and asked him to take her home. She told him she had been raped. Except for a blanket which she had draped around her shoulders, she was nude. Jones took her to a convenience store where she met William Maddox.

Appellant testified that he met the prose-cutrix in the kitchen of Donnie Jones’ house. She was with Charles Bradford. After appellant gave her a glass of water, she and Bradford went to appellant’s room for awhile. Shortly thereafter, appellant asked them to leave so he could go to sleep. He stated that they left and that that was the last time he saw the prosecutrix. He denied raping her.

The State’s burden of proof in a probation revocation hearing is “by a preponderance of the evidence.” Viewing the foregoing evidence in the light most favorable to the State, as we must, we find that such evidence was sufficient to support the order revoking probation.

Appellant’s final contention is that the court abused its discretion in revoking probation because the evidence was insufficient to show force or threats as alleged. In this connection, the prosecutrix testified that appellant “kept forcing himself on me, and there was no way I could stop him.” She resisted by repeatedly telling him “no.” This evidence was sufficient to support the' allegation that appellant used force and threats. See V.T.C.A., Penal Code, Section 21.02.

No abuse of discretion is shown. The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Paul W. COX, Appellant, v. The STATE of Texas, Appellee.
    No. 56763.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Jan. 18, 1978.
    Peter A. Lesser, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Maridell Templeton and Winfield Scott, Asst. Dist. Attys., Dallas, for the State.
    Before TÓM G. DAVIS, DALLY and W. ’C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for theft over $200.00. Appellant entered a plea of guilty, after which punishment was assessed at eight years.

In his sole ground of error, appellant complains that the indictment in the instant ease “was fundamentally defective in that said indictment failed to comply with the requirements of Article 21.09 [V.A.C.C.P.].”

Article 21.09, V.A.C.C.P., provides, in pertinent part:

“If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.”

The above quoted language was incorporated into Art. 21.09 by an amendment effective June 19,1975, and is applicable to this indictment which was returned on December 8, 1975.

The indictment in the instant case alleges that the appellant:

“did unlawfully, knowingly and intentionally appropriate property, other than real property, to wit: one ring of the value of at least $200.00 but less than $10,000.00, without the effective consent of Harlin R. Robinson, the owner thereof.

Appellant contends that the amended language in Art. 21.09, supra, “is more stringent in its requirements as to what must be alleged in an indictment” than was the old language. This Court has specifically rejected the proposition. In Welch v. State, Tex.Cr.App., 543 S.W.2d 378, 380, we said:

“We conclude that Art. 21.09, supra, as amended, places no greater burden on the State to more specifically describe personal property alleged in an indictment than before.”

An indictment which was sufficient before the amendment would still be sufficient today.

In Bruner v. State, Tex.Cr.App., 509 S.W.2d 620, we held the description “two suits” was sufficient. In Ashford v. State, Tex.Cr.App., 502 S.W.2d 27, we found the description “one purse” to be sufficient. In Mays v. State, Tex.Cr.App., 428 S.W.2d 325, we found the description “one television set” was sufficient. See also Kirkland v. State, Tex.Cr.App., 489 S.W.2d 298, 299 (“one oxygen container and the contents thereof, to-wit: oxygen”); Wilson v. State, Tex.Cr.App., 398 S.W.2d 291 (“ten drill bits”).

The description of “one ring” contained in the indictment is as definite as any of those referred to above. The indictment in the instant case is sufficient in its identification of the property involved. No error is shown.

The judgment is affirmed.

      . The previous Art. 21.09, V.A.C.C.P., read as follows, in pertinent part:
      “When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient.”


author: ONION, Presiding Judge. ROBERTS, Judge,

text:
    Billy James WILDER, Appellant, v. The STATE of Texas, Appellee.
    No. 53474.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 25, 1978.

      Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary W. Love and Les S. Eubanks, Jr., Asst. Dist. Attys., Dallas, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

The majority opinion on original submission is withdrawn and the following is substituted in lieu thereof. The appeal was taken from a conviction for robbery by assault with a firearm under the former Penal Code. Punishment was assessed by the jury at fifty (50) years’ imprisonment.

The appellant was jointly tried with co-defendant Robert Lewis Andrew, though represented by different counsel. In the opinion on Andrew’s motion for rehearing this court reversed Andrew’s conviction because the trial court committed reversible error in failing to require the prosecution to reveal the name of a confidential informer, a material witness. Andrew v. State, 558 S.W.2d 876 (Tex.Cr.App.1977).

On appeal the appellant Wilder raises the same contention as Andrew. While most of the facts relating to the informer being a material witness to the offense were developed by Andrew’s counsel, it is observed in perfecting his bill of exception appellant’s counsel determined from the witness that his answers to the questions propounded to Andrew’s counsel would be the same if the questions were repeated by appellant’s counsel. As in Andrew, and despite the fact that the trial court cut off the completion of the bill of exception, the informal bill is sufficient to show the informer was a material witness to the transaction and that his identity should be revealed. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973).

Appellant’s motion for rehearing is granted. The judgment of affirmance is set aside. The judgment is reversed and the cause remanded.

VOLLERS, J., not participating.

ROBERTS, Judge,

concurring.

I concur with the Court’s opinion on the Appellant’s Motion for Rehearing. However, there is an additional ground of error which requires that the appellant’s conviction be reversed.

Appellant’s sixth contention focuses upon the following argument concerning a confidential informant made by the prosecutor:

“Mr. Zimmermann [Appellant’s Co-Defendant’s Counsel] asked why didn’t they bring him down here. Now I’m trying to tell you and he won’t let me, because he would be dead in a minute, that’s why.”

It must be noted, however, that immediately prior to the above argument the prosecutor, over objection, had stated:

“Now, Mr. Zimmermann said, ‘Why didn’t we bring that mysterious person down here?’ Yes, he is mysterious, ladies and gentlemen. He is a confidential informant.”

Both of the prosecutor’s comments were in response to the following argument by appellant’s co-defendant’s counsel:

“How about the mysterious witness, the mysterious witness who saw it? Why can’t he come down? Why can’t he identify somebody? Why can’t he be brought to you? Not trying to hide anything.”

The State contends that the prosecutor’s comments were invited by the appellant’s co-defendant’s counsel and therefore not error.

It is well established that the rule of invited error is that if the defendant’s counsel goes outside the record in his argument, the prosecutor is then also permitted to go outside the record to respond to that argument. Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App.1974); Griffin v. State, 481 S.W.2d 838 (Tex.Cr.App.1972). But in Reynolds v. State, supra, we held that when defense counsel’s argument is not objectionable the prosecutor may not go outside the record and argue facts not in evidence. See also Bailey v. State, 531 S.W.2d 628 (Tex.Cr.App.1976). Furthermore, in Garrison v. State, 528 S.W.2d 837 (Tex.Cr.App.1975), we held that a prosecutor’s argument may not exceed the invitation of defense counsel’s argument.

These rules create a dual inquiry that must be applied to allegedly improper pros-ecutorial responses to arguments of defense counsel. First, if defense counsel's argument was supported by the record and therefore proper, then any response by the prosecutor that is not supported by the record is improper. Second, if defense counsel’s argument was not supported by the record and therefore improper, then any response by the prosecutor going outside the record will be improper only if the response exceeded the limits of the proper scope of the invitation. See Garrison v. State, supra.

In the present case, we deal with a comment by the appellant’s co-defendant’s counsel touching upon the State’s failure to call a witness and the prosecutor’s response to that comment.

It is a well established proposition that the State can comment during final argument on the failure of the defendant to call competent and material witnesses. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Fisher v. State, 511 S.W.2d 506 (Tex.Cr.App.1974); Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974). It is equally well established that the defendant may comment upon the failure of the State to call competent witnesses. Bowlin v. State, 93 Tex.Cr.R. 452, 248 S.W. 396, 404 (1923); Patterson v. State, 387 S.W.2d 390 (Tex.Cr.App.1965); 56 Tex.Jur.2d, Trial, Sec. 261, p. 599.

The record reflects that there was testimony relating to a “mysterious” witness. Therefore, the argument by the appellant’s co-defendant’s trial counsel was proper. Reynolds v. State, supra; Bailey v. State, supra.

While there is no need to delineate the precise limits of proper invited argument, it is sufficient to note that the prosecutor adequately explained the absence of the mysterious witness when he told the jury that the mysterious witness was a confidential informant. Cf. Bailey v. State, supra at 630.

The prosecutor’s comment that the mysterious witness “would be dead in a minute” if he testified interjected his opinion that the appellant was a murderer. This violated the principle that a prosecutor may not imply that an absent witness was afraid to testify due to the defendant. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966) (J. Morrison, concurring); Benavides v. State, 111 Tex.Cr.R. 361, 12 S.W.2d 1031 (1929). The argument interjected new and harmful facts which were prejudicial to the appellant. Minter v. State, 505 S.W.2d 581 (Tex.Cr.App.1974).

Therefore, I concur not only with the majority’s opinion on rehearing, but would also reverse the cause and remand for a new trial due to the prosecutor’s improper and prejudicial comment.

PHILLIPS, J., joins in this opinion.

      . If the defendant was unable to comment on the State’s failure to call material witnesses, a violation of due process would result.

      . Even if the argument was improper, the fact that appellant’s co-defendant’s counsel exceeded the bounds of proper argument should not justify an unrestrained prosecutorial reply. To allow an unrestrained response would be akin to reasoning that two wrongs make a right.
      The better reasoned approach would require the prosecutor to object to improper arguments by defense counsel and request a curative instruction from the trial judge. Only if the objection is overruled should the prosecutor be permitted to respond to the argument of defense counsel. Furthermore, the prosecutorial response should be limited so that the defendant’s right to a fair trial is not violated.
      Moreover, where defense counsel ignores the instructions of the trial judge as to the proper scope of argument, the trial judge can hold him in contempt, or, under the ruling of United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), remove counsel from the proceeding and declare a mistrial without invoking the availability of a double jeopardy claim.
      It is obvious that the invited argument rule is not in the best interests of society. Unlike the exclusionary rule, however, there are alternatives that better suit due process. Cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Bivens v. Six Unknown Named Federal Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (dissenting opinion of Mr. Chief Justice Burger).

      . In Garrison v. State, supra, we held that the prosecutor exceeded the limits of proper invited arguments by recounting all of the defendant’s alleged misdeeds before the jury. The strong implication was that a conclusory statement would have been within the limits of proper invited argument.

      . In Garrison v. State, supra, the prosecutor similarly exceeded the limits of proper invited argument by interjecting the crimes of molesting and adultery. We held that to be outside the limits of proper invited argument.


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

text:
    Charles Henry SIDNEY aka Charles Williams, Appellant, v. The STATE of Texas, Appellee.
    No. 53533.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 25, 1978.
    Appellants’ Motion for Rehearing Denied Feb. 8, 1978.

      Will Gray, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Joe D. Anderson, Asst. Dist. At-tys., Houston, for the State.
   OPINION

DOUGLAS, Presiding Judge.

This is an appeal from a conviction for aggravated robbery. The court assessed punishment at eight years.

The record reflects that on January 2, 1975, appellant robbed Bertha DeLa Torres of her wallet, which contained approximately $3.00. He took the wallet while he beat her severely. As a result she sustained injuries to her face, left eye and mouth.

Appellant contends that a fatal variance exists between the indictment and the proof. The indictment alleges, in part, that appellant “ . . . did then and there unlawfully * * * while in the course of committing theft of money owned by . the complainant, and with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, a pistol, intentionally and knowingly cause serious bodily injury to the complainant.”

The record reveals that no pistol was used or displayed by appellant during the robbery. The complainant’s injuries were caused from the beating appellant inflicted upon her with his fists.

The court instructed the jury that “[T]he offense is aggravated robbery if the person committing a robbery causes serious bodily injury to another or uses or exhibits a deadly weapon in committing robbery.”

In applying the law to the facts, the court gave the following instruction:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 2nd day of January, 1975 in Harris County, Texas, the defendant, CHARLES HENRY SIDNEY Mias CHARLES WILLIAMS, did, without the effective consent of Bertha DeLa Torres, the owner, take and exercise control over the corporeal personal property of Bertha DeLa Torres, to wit, money, from the possession of Bertha DeLa Torres, with intent then and there to deprive Bertha DeLa Torres of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally or knowingly, caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond' a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Bertha DeLa Torres then you will find defendant guilty of aggravated robbery . . .

There were no objections to the court’s charge.

Appellant was indicted under V.T.C.A., Penal Code, Section 29.03, which provides as follows:

“(a) A person commits an offense as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.
“(b) An offense under this section is a felony of the first degree.”

The constituent elements of the offense are that a person (1) commits the offense of robbery as defined in Section 29.02, supra, (2) causes serious bodily injury to another or uses or exhibits a deadly weapon. Where there are several ways or methods by which an offense may be committed set forth in the same statute, and those ways or methods are subject to the same punishment, they may be charged conjunctively in one count. Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976); see also, 30 Tex.Jur.2d, Indictment and Information, Section 42, page 610. Therefore, an indictment charging the offense of aggravated robbery may properly allege conjunctively in one count that the robbery was effected by the use and exhibition of a deadly weapon, and by the infliction of serious bodily injury to another. Allegation and proof of either of the two statutory means of aggravation will suffice to support a conviction for aggravated robbery. See and compare Garcia v. State, supra.

Appellant was initially charged with committing aggravated robbery by using and exhibiting a deadly weapon and by intentionally causing serious bodily injury to the complainant. The theory that appellant used and exhibited a deadly weapon was abandoned and was not submitted in the court’s charge.

Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975), is distinguishable on its facts. In Burrell, the State was erroneously allowed to amend a duplicitous indictment by deleting descriptive allegations. We held that such amendment was one of substance and, thus, contravened Article 28.10, V.A.C. C.P. In the instant case, however, there was no amendment, but merely an abandonment of one of the ways or methods by which the offense could be committed. No violation of Article 28.10, supra, has been shown.

The State relied upon the theory set forth in the indictment that appellant intentionally caused serious bodily injury to the complainant. The proof supporting this theory is strong. We hold that no fatal variance is shown.

In view of this holding, we do not reach appellant’s contention that the evidence is insufficient to support the allegation that he used and exhibited a pistol. Likewise, we do not reach his contention that the evidence is insufficient to show he caused serious bodily injury to the complainant with a pistol.

Appellant contends the evidence is insufficient to prove that he stole the complainant’s wallet. He argues that the evidence is sufficient to support a conviction for attempted rape, but is insufficient to prove any offense against property.

The complainant testified that appellant had placed her in fear of imminent serious bodily injury or death. He took her wallet without her consent while he was hitting her and did not return it. She further testified that the wallet contained approximately $3.00.

Viewing this evidence in the light most favorable to the State, as we must, we hold the evidence was sufficient to prove that appellant robbed the complainant of her money. See V.T.C.A., Penal Code, Sections 29.02, 29.03 and 31.03.

The judgment is affirmed.

ONION, Presiding Judge,

dissenting.

Appellant contends that there is a fatal variance between the indictment and the proof in that the indictment alleged the single offense of aggravated robbery by using and exhibiting a deadly weapon, namely, a pistol, and that the proof revealed that no pistol was used.

Omitting the formal parts, the indictment alleged in part that on or about January 2, 1975 the appellant:

“did then and there unlawfully while in the course of committing theft of money owned by Bertha DeLa Torres, hereafter styled the complainant, and with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, a pistol, intentionally and knowingly cause serious bodily injury to the complainant.”

The proof did not show a pistol was used as the State readily admits.

The majority, citing Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976), overrules appellant’s contention, holding that where there are several ways by which an offense may be committed set forth in the same statute, and those ways are subject to the same punishment, they may be charged conjunctively in one count. The majority concluded the indictment conjunctively charged: (1) aggravated robbery by using and exhibiting a deadly weapon and (2) aggravated robbery by the causation of serious bodily injury to another and the submission of the second method (serious bodily injury) to the jury and the abandonment in effect of the first method (using and exhibiting a deadly weapon) was not error. The majority thus found no variance between allegata et probata in view of the permissive abandonment described above. The majority sought to distinguish Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975), contending that there was no amendment of substance by deleting descriptive allegations.

The key word in the indictment is the word “serious,” which is descriptive of the alleged “bodily injury.” If the word “serious” had not been employed there could be only one possible interpretation of the indictment; i. e., the indictment would have alleged the appellant had committed robbery by causing bodily injury and that it was aggravated robbery because the appellant used and exhibited a deadly weapon. However, the insertion of the word “serious” allows three possible interpretations of this indictment: (1) the indictment alleges aggravated robbery by a deadly weapon, (2) the indictment alleges aggravated robbery with serious bodily injury, or (3) the indictment alleges these two ways to commit aggravated robbery conjunctively in one count.

To better understand these possible interpretations, the statutes defining robbery and aggravated robbery must be examined.

V.T.C.A., Penal Code, § 29.02 (Robbery), provides:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”

The elements of robbery with bodily injury are: (1) a person (2) in course of committing theft (3) with intent to obtain or maintain control of property (4) intentionally, knowingly or recklessly (5) causes bodily injury.

The elements of robbery by threats or fear are: (1) a person (2) in course of committing theft (3) with intent to obtain or maintain control of property (4) knowingly or intentionally (5) threatened or placed another in fear of imminent bodily injury or death.

V.T.C.A., Penal Code, § 29.03 (Aggravated Robbery), provides:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.
“(b) An offense under this section is a felony of the first degree.” (Emphasis added.)

The elements of aggravated robbery with serious bodily injury are: (1) a person (2) commits robbery under § 29.02 and (3) causes serious bodily injury to another.

The elements of aggravated robbery by deadly weapon are: (a) a person (2) commits a robbery under § 29.02 and (3) uses or exhibits a deadly weapon.

Morrison and Blackwell, New Penal Code Forms, § 29.03A, p. 32, provides a suggested form for an indictment alleging aggravated robbery — causing serious bodily injury:

“(Commencement Form) A. B., on or about the _ day of _, 19-, in the county and state aforesaid, did then and there while in the course of committing theft and with intent to obtain (or maintain control of) property of C. D., to wit: _ (specify the property) without the effective consent of the said C. D. and with intent to deprive the said C. D. of said property, did then and there intentionally knowingly (or recklessly) cause serious bodily injury to C. D. (or E. F.) by _ (specify the manner and means of committing the act).”

Another suggested form is found in 2 Branch’s Texas Annotated Penal Statutes, 3rd ed., § 29.03, p. 319 (Aggravated Robbery with Serious Bodily Injury):

“[Caption, Introduction, see Appendix of General Pleading Forms]
“ 1 did then and there, while in the course of committing theft of 2 (describe property which is the subject of the theft), hereinafter called ‘the property,’ from 3 (name of owner of the property), with intent to obtain and maintain control of the property, knowingly and intentionally cause serious bodily injury to 4 (name of victim).’’

Morrison and Blackwell, New Penal Code Forms, § 29.03B, p. 33, also sets forth another suggested form for an indictment for aggravated robbery — with a deadly weapon:

“(Commencement Form) A. B., on or about the - day of _, 19_, in the county and state aforesaid, did then and there while in the course of committing theft and with intent to obtain (or maintain control of) property of C. D., to wit: _ (specify the property), without the effective consent of the said C. D. and with intent to deprive the said C. D. of said property, did then and there by using and exhibiting a deadly weapon, to wit: _ (specify the deadly weapon used) intentionally and knowingly (or recklessly) cause bodily injury to C. D. (or E. F.) by - (specify the manner and means of committing the act) (or intentionally and knowingly threaten C. D. (or E. F.) with (or intentionally and knowingly place C. D. (or E. F.) in fear of) imminent bodily injury (or death).”

2 Branch’s Texas Annotated Penal Statutes, 3rd ed., § 29.03, p. 320, also suggests an indictment form for “Aggravated Robbery by Deadly Weapon.” It provides:

“[Caption, Introduction, see Appendix of General Pleading Forms]
“ 1 did then and there, while in the course of committing theft of 2 (describe the property which is the subject, of the theft), hereinafter called ‘the property,’ from 3 (name of owner of the property), with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, 4_(describe weapon), knowingly and intentionally 5 (cause bodily injury to) 6_(name of victim), (or) 7 (threaten and place 8 (name of victim) in fear of imminent bodily injury and).”

It appears that the indictment in the instant case attempted to follow the last form set out above for aggravated robbery by a deadly weapon with the allegation that bodily injury was caused and the word “serious” was inserted as descriptive of the bodily injury. As indicated earlier, this insertion raises the question before us. Did the allegations of the indictment simply allege aggravated robbery by a deadly weapon in which bodily injury was caused with the averment of “serious” being an unnecessary but a descriptive averment requiring proof thereof to sustain the conviction, or did the indictment allege aggravated robbery with serious bodily injury with averments specifying the manner and means of committing the act (with a deadly weapon, namely, a pistol) but which aver-ments, having been pleaded must be proved, or did the indictment allege, as the majority suggests, both forms of aggravated robbery conjunctively in one count and the form with a deadly weapon was abandoned when the charge was submitted to the jury (that portion of the indictment actually abandoned was the averment “using and exhibiting a deadly weapon, namely, a pistol.”)?

In my humble opinion the judgment must be reversed under any of these theories.

If the indictment in fact alleges aggravated robbery by a deadly weapon in which bodily injury was caused, then the conviction must fall. In Moore v. State, 531 S.W.2d 140 (Tex.Cr.App.1976), we stated, “The State is bound by its allegations in the indictment and must prove them beyond a reasonable doubt. Butler v. State, 429 S.W.2d 497 (Tex.Cr.App.1968); Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App.1973). Therefore, the State was bound to prove beyond a reasonable doubt that the appellants robbed the complainant Shaw with a pistol. The proof of robbery with a sawed-off shotgun does not meet the burden.” Here it was alleged that the deadly weapon was a pistol and there was no proof whatsoever that a pistol was in fact used.

If it is assumed that the indictment alleges aggravated robbery with serious bodily injury being caused, then it is apparent that the pleader (as suggested in the Morrison and Blackwell forms) went further and alleged the manner and means of committing the act (“using and exhibiting a deadly weapon, namely, a pistol”). In Burrell v. State, supra, the indictment, omitting the formal parts, alleged that Burrell “ . did unlawfully, voluntarily and with malice aforethought, make an assault in and upon the person of J. P. Huckabay, hereinafter styled ‘Injured Party’, with the intent to kill said ‘Injured Party’ by shooting him with a gun, and said ‘Injured Party’, then and there being an officer, to-wit, a police officer of the City of Balch Springs, Texas, who was then and there engaging in the performance of his official duty and the said Defendant then and there knowing that the said ‘Injured Party’ was such police officer ...” (Emphasis supplied.) The trial court permitted the State to amend the indictment after the trial commenced by the deletion of the emphasized words. This court concluded that the deleted words, although unnecessary allegations, were descriptive of the offense and once pleaded they must be proved, and that therefore their deletion from the indictment was an amendment of substance which required reversal of the conviction. Thus, it is apparent in the instant case that the State having averred the manner and means of committing the act must prove the manner and means, and the State failed to do so.

It is also my opinion that the least likely interpretation of this indictment is that it conjunctively alleges both forms of aggravated robbery. Article 21.11, Vernon’s Ann.C.C.P., provides in part:

“An indictment shall be ... in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged

Here there is nothing on the face of this indictment to indicate that two forms of aggravated robbery are being alleged. Had the pleader intended to conjunctively allege both forms of aggravated robbery it would seem to follow that he would use a conjunction to join up the two forms. In Garcia v. State, supra, and in a sampling of the cases under 30 Tex.Jur.2d, Indictment and Information, § 42, p. 610 (cited by the majority), the conjunction “and” is used in the indictment where the word “or” is found in the statute. However, assuming arguendo that the indictment does attempt to allege both forms of aggravated robbery, I am further of the opinion that under the rule laid down in Burrell v. State, supra, the State cannot here delete from the indictment, by abandonment, amendment, or otherwise, the words “using and exhibiting a deadly weapon, namely, a pistol.” In this case, these words are clearly descriptive averments of the manner and means of committing the offense and because they are alleged they must be proved. They were not so proved.

For the reasons stated, the judgment should be reversed and remanded. I dissent.

ROBERTS and PHILLIPS, JJ., join in this dissent.

      . Under any circumstances, it is easy to understand why a defendant may be confused or misled as to which is alleged.

      . It is observed as to the culpable mental states involved in the two ways of committing robbery “knowingly” and “intentionally” are common to both while “recklessly” is applicable only to robbery with bodily injury.


author: W. C. DAVIS, Judge.

text:
    Billy James CRUTCHFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 56327.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Jan. 25, 1978.
    Jimmy Phillips, Jr., Angleton, for appellant.
    Ogden Bass, Dist. Atty. and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for driving while intoxicated, a felony offense since appellant had a previous misdemeanor conviction for the same offense. The punishment was assessed at five years confinement in the Texas Department of Corrections.

On October 17,1975, appellant apparently entered a plea of guilty to the trial court. The court heard evidence against appellant and then entered an order deferring further proceedings and placing appellant on probation for a period of five years under certain terms and conditions. This order was entered pursuant to the authority of Art. 42.-12, Sec. 3d(a), Vernon’s Ann.C.C.P.

On March 9, 1977, the State filed its amended petition for “the revocation of a probated sentence and adjudication of guilt,” alleging that appellant’had violated his probationary conditions. On March 28, 1977, a hearing was held, after which the trial court set aside its prior order deferring an adjudication of guilt and placing appellant on probation. The trial court then orally found appellant guilty of the offense of driving while intoxicated. This appeal followed, but we have concluded that it must be dismissed.

The language of Art. 42.12, Sec. 3d(a) and (b), supra, is very similar to Sec. 4.12(a) and (b), Article 4476-15, Vernon’s Ann.Civ.St., Controlled Substances Act, which likewise provides for deferred adjudication of guilt and the procedure to be followed upon a violation of the conditions of probation. In Richie v. State, 542 S.W.2d 422 (Tex.Cr.App.1976), this Court held in construing Sec. 4.12(a) and (b), supra:

“Reading Subsections (a) and (b) together, it is apparent that no judgment is to be entered at the time a conditional discharge is granted but one must be entered at the time the conditional discharge is revoked. In this regard the conditional discharge procedures under Sec. 4.12, supra, are no different than the misdemeanor probation procedures under Art. 42.13, Vernon’s Ann.C.C.P.”

Upon our review of the record, we have found no judgment of conviction for the felony offense as required by Art. 40.09, Sec. 1, Vernon’s Ann.C.C.P. The order entered by the court entitled “Revocation of Conditional Discharge and Imposition of Sentence” is not sufficient to constitute a judgment; nowhere in this order does there appear a finding of guilt as required by Art. 42.01, Vernon’s Ann.C.C.P. The order merely recites that appellant had been found guilty. Neither does the record show the taking of appellant’s plea, as required by Art. 42.01, supra. This is not the case as Ledesman v. State, 557 S.W.2d 788 (Tex.Cr.App.1977) where the requisites of a valid judgment are contained in separate instruments in the record.

Accordingly, this appeal must be dismissed. Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976); Scott v. State, 461 S.W.2d 619 (Tex.Cr.App.1971).

      . Appellant’s plea to the charge is not in the appellate record. However, other orders in the record indicate that such plea was taken.

      . See Richie v. State, supra, also for the procedures to be followed for the entering of judgment, pronouncement of sentence, etc.

      . We direct the trial court’s attention to the fact that before the submission of this case to the Court of Criminal Appeals appellant timely filed objections to the record. Appellant had previously requested that the transcript and statement of facts from the original proceedings in the trial court be included in this appellate record. The trial court entered an order directing the court reporter to prepare the same. However, this transcript and statement of facts were not included in this appellate record. Neither did the trial court hold a hearing on appellant’s objections to the record, as mandated by Art. 40.09, Sec. 7, Vernon’s Ann. C.C.P. Since appellant’s first ground of error on appeal complains of the absence of this part of the record, the trial court may, in a subsequent proceeding, remedy this situation.


author: ROBERTS, Judge.

text:
    Douglas Gene WOLFE, Appellant, v. The STATE of Texas, Appellee.
    No. 56660.
    Court of Criminal Appeals of Texas. Panel No. 3.
    Jan. 25, 1978.

      Rodney L. Poirot and Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., J. T. Lang-ford, Kelly Loving and Jan E. Potts, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from an order of the court revoking the appellant’s probation. The trial judge found that the appellant had violated one condition of his probation and sentenced the appellant to five years’ confinement in the Texas Department of Corrections.

The appellant contends that the conviction upon which his probation was based is void. We affirm.

The appellant was indicted for the offense of criminal mischief on February 14, 1977. The indictment alleged that the offense was committed on or about December 21, 1976.

On April 7, 1977, the appellant waived a trial by jury and entered a plea of guilty before the court pursuant to Article 1.13, Vernon’s Ann.C.C.P. See Article 1.15, Vernon’s Ann.C.C.P. The State introduced a stipulation, signed by the appellant, the appellant’s attorney, the prosecutor, and the trial judge which stated, in pertinent part, that:

“I judicially confess that on the 21 day of Dec. [sic], 1977, in Dallas County, Texas, I did knowingly and intentionally destroy an automobile window w/o the effective consent of Robert McMullin, the owner thereof, said damage amounting to more than $200.00 but less than $10,000, as charged in the indictment . . ..”

The trial judge assessed the appellant a five-year probationary term.

One of the conditions of the appellant’s probation was that he “(a) [c]ommit no offense against the laws of this state or any other state or the United States.” On April 18,1977, the State filed its motion to revoke and as grounds therefor alleged that the appellant had violated condition (a) of his probation by committing the offense of burglary of a habitation on April 8, 1977.

On July 20, 1977, a hearing was held on the State’s motion to revoke. The appellant pleaded true to the motion. The trial judge revoked the appellant’s probation and sentenced the appellant to five years.

The appellant contends that his conviction for criminal mischief is void. The appellant asserts that the only evidence in the record to support the conviction for criminal mischief is his signed judicial confession, that his judicial confession reveals that the offense was committed on December 21, 1977, but that the indictment, which was returned by the grand jury on February 14, 1977, shows that the offense was committed on December 21, 1976. Thus, since the State has the burden of proving that the offense was committed prior to the return of the indictment, McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Glenn v. State, 436 S.W.2d 344 (Tex.Cr.App.1969), the appellant contends that there is no evidence to support his conviction for criminal mischief.

Essentially, the appellant is collaterally attacking the sufficiency of the evidence. It is well established that the sufficiency of the evidence may not be collaterally attacked. Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973). However, in Ex Parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), this Court created an exception to the rule prohibiting collateral attacks on the sufficiency of evidence. In Moffett, we permitted a collateral attack of an order revoking the defendant’s probation where the revocation order was based on no evidence. We there held that since there was no evidence, not merely insufficient evidence, to support the order revoking probation, a violation of due process had been shown which justified collateral attack by habeas corpus. See also Ex Parte Murchison, 560 S.W.2d 654 (Tex.Cr.App.1978).

In the present case, the appellant asserts that there is no evidence to support his conviction for criminal mischief. The record before us supports the appellant’s contention. The appellant’s judicial confession does reflect that the offense was committed after the return of the indictment.

However, the record before us does not contain a transcription of the court reporter’s notes from the trial on the appellant’s plea of guilty to the charge of criminal mischief. Without that transcription, we are unable to ascertain whether other evidence was introduced to support the appellant’s conviction. We therefore hold that the appellant’s contention does not fall within the purview of Ex Parte Moffett, supra, but is merely an impermissible attempt to collaterally attack the sufficiency of the evidence. Appellant’s contention is overruled.

The judgment is affirmed.

      . V.T.C.A., Penal Code, Section 28.03(a)(1).

      . The appellant also waived his right to appeal.

      .At that time, the appellant also entered a plea of guilty to an indictment charging him with the April 8, 1977, burglary of a habitation. See Wolfe v. State, No. 56,661 (this day decided in an unpublished per curiam opinion).

      . Due to our disposition of this case, we find it unnecessary to decide whether the phrase “ . .as alleged in the indictment,” contained in the judicial confession, cures the vari-anee between the dates alleged in the confession and that alleged in the indictment.

      . See note 2, supra.


author: VOLLERS, Judge.

text:
    Ex parte David OLSON.
    No. 56714.
    Court of Criminal Appeals of Texas. Panel No. 3.
    Jan. 25, 1978.

      Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

VOLLERS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted on his plea of not guilty to a jury of the offense of murder in Cause No. 18207 and was sentenced to a life term of imprisonment on March 12, 1971. Petitioner was also convicted on his plea of guilty to the court of the offense of robbery by assault in Cause No. 18210 and assessed another life term of imprisonment on March 15, 1971. No appeals were taken of these convictions.

Petitioner has filed an application for writ of habeas corpus with the trial court, contending that he has been subjected to double jeopardy by way of a violation of the carving doctrine, since both of the above-mentioned convictions arose out of the same transaction, upon the same victim, at the same time. The trial court, after reviewing the records of the previous convictions, found that the State introduced petitioner’s confession at both trials, and that that confession read as follows, to-wit:

“At this time, I took the military type .45 caliber automatic pistol which was given to me by Harmon and walked down to the Seven Eleven Store and went in. The man was behind the Counter, and I told him to take all of the money and put it in a plain paper bag, he did as such and said nothing at all. As he handed me the bag, his hand went down and all I remember is hearing the explosion of the gun in my hand . . . and all I remember after the explosion of the gun was shaking for a moment and then looking over the counter. I turned and took off in a cold scared run.”

Under this Court’s opinion of Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977) a majority of this Court held that:

“Even if we accept the facts as they are recited in the confession, we cannot agree with the State’s interpretation of the evidence that the offense of robbery was complete when petitioner took the money and the act of standing in the doorway interrupted the transaction so that the murder was a separate assault . the time sequence of events was continuous and did not break the chain of antecedent violence perpetrated upon the complaining witness so as to give rise to the inception of another separate and distinct offense.”

Under Ex parte Birl, petitioner is entitled to relief based upon the evidence as shown by petitioner’s confession. See also, Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App.1976); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Ex parte Farris, 538 S.W.2d 134 (Tex.Cr.App.1976); Ex parte Thomas, 538 S.W.2d 622 (Tex.Cr.App.1976); Ex parte Prince, 549 S.W.2d 753 (Tex.Cr.App.1977). Cf. Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App.1974). We conclude that the prosecution for robbery by assault in Cause No. 18210, the subsequent conviction, should have been barred under the carving doctrine.

For the reasons stated, the writ of habeas corpus is granted and the conviction for robbery by assault in Cause No. 18210 is hereby ordered reversed and dismissed.


author: ONION, Presiding Judge.

text:
    Vernon Boyd CARAWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 57312.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Jan. 25, 1978.
    Steven G. Condos, Dallas, for appellant.
    Henry Wade, Dist. Atty., T. Michael Sutton, Paul Macaluso and Rider Scott, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for aggravated rape. The punishment, enhanced under the provisions of V.T.C.A., Penal Code, Section 12.42(d), was assessed by the court at life imprisonment.

On October 14, 1977, the record on appeal was completed, and notice thereof was given to the parties pursuant to Article 40.09(7), Vernon’s Ann. C.C.P. On October 21, 1977, appellant filed his pro se request for a “personal inspection of all the record” in order “to assist his counsel in the preparation of his brief on appeal” and to enable him “to properly present . . .his own supplemental pro se brief.” On November 4, 1977, the trial court entered its order approving the record on appeal in this cause. Subsequently, on Monday, December 5, 1977, appellant’s court-appointed counsel timely filed his brief in the trial court. In that brief counsel concluded that the appeal was wholly frivolous and without merit. This brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in that it contains a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced on appeal. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974).

Also on December 5,1977, counsel mailed a copy of his brief to the appellant. By letter of the same date, counsel informed appellant that he had a right to file a pro se brief and that he had “the right to request that you be furnished with the use of a copy of the appellate record of your case” in order to aid him in filing such brief.

It does not appear from the record before us that appellant, after having received counsel’s letter, again requested that he be allowed to review the record on appeal in order to aid him in filing a pro se brief. On December 22, 1977, the trial court ordered the record on appeal to be forwarded to this Court.

Under the circumstances it would appear that, after the record on appeal had been approved and appellant had read the brief filed by court-appointed counsel, he was satisfied with the brief filed by counsel and did not wish to further pursue his request to review the appellate record or his desire to file a pro se brief.

We are of the opinion and now so hold that, prior to approval of the record by the trial court, any pro se request by a defendant for permission to review his appellate record is premature. Of course, we have held that, in cases such as the instant one where court-appointed counsel has filed a “frivolous appeal” brief, the defendant must be advised that he has a right to file a pro se brief and that he has a right to personally review the appellate record for that purpose. Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). However, we believe that it is only after court-appointed counsel has filed a “frivolous appeal” brief and has given the defendant advice concerning his pro se appellate rights, that the time arises for the defendant to decide whether or not to file a pro se brief and whether to request a personal review of the appellate record for that purpose. To hold otherwise opens the doors to repetitious requests for personal reviews of appellate records by defendants, resulting in the needless waste of judicial time, not to mention the unnecessary expense of public funds. In the instant case the trial court was not bound to honor appellant’s premature request for a review of the appellate record.

We have reviewed the record and counsel’s brief and agree with counsel in his conclusion that this appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.

The judgment is affirmed.


text:
    Norman Dean PITTS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56361, 56362.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Jan. 25, 1978.

      Terrence A. Gaiser, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Gerard W. Guerinot, Asst. Dist. Attys., Houston, for the State.
    Before THOMAS G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

These are appeals from convictions for burglary. Trial was before the court on pleas of guilty. The punishment is imprisonment for 10 years in each case.

In three related grounds of error the appellant contends that the court erred in eliciting testimony from appellant concerning previous arrests including arrests occurring when the appellant was a juvenile. It is urged that the court’s inquiry was in contravention of Art. 37.07, Sec. 3(a), V.A. C.C.P., which provides that only that portion of the defendant’s prior criminal record which resulted in final convictions may be offered and considered.

After the court found the appellant guilty the State recommended punishment of imprisonment for 10 years, probated. The court requested a presentence report. When the court reconvened to consider whether to grant probation, a presentence probation report had not been furnished, and during this hearing the court asked the questions about which appellant now complains. The colloquy follows:

“THE COURT: Have you ever been handled by the police before for anything?
“THE DEFENDANT: Yes, sir.
“THE COURT: What for?
“THE DEFENDANT: Misdemeanor possession of marijuana.
“THE COURT: What else?
“THE DEFENDANT: Juvenile.
“THE COURT: What else?
“THE DEFENDANT: That’s it.
“THE COURT: As a juvenile, what theft?
“THE DEFENDANT: Attempted theft.”

The record is clear that the questions were asked by the court to determine whether probation should be granted. In determining whether probation should be granted the court did not err in considering appellant’s arrest record. McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App.1971); Valdez v. State, 491 S.W.2d 415 (Tex.Cr.App.1973) including his juvenile record, Walker v. State, 493 S.W.2d 293 (Tex.Cr.App.1973).

The judgments are affirmed.