author: BARROW, Justice.

text:
    STATE of Texas ex rel. Clyde T. McWILLIAMS et al., Petitioners, v. TOWN OF OAK POINT, Texas, Respondent.
    No. B-7970.
    Supreme Court of Texas.
    March 28, 1979.

      Jerry W. Cobb, County Atty., Gray, Whit-ten & Loveless, Michael J. Whitten, Denton, for petitioners.
    Shirley W. Peters, Denton, for respondent.
   BARROW, Justice.

The question presented by this quo war-ranto proceeding is whether an inhabitant of the territory sought to be annexed under the provisions of Article 974 must be a “registered voter” in order to vote in the type election prescribed by this statute. The trial court held that the inhabitant, if otherwise qualified, need not be registered, and since a majority of the inhabitants otherwise qualified to vote had not signed the petition favoring annexation, the annexation ordinance was held void. The court of civil appeals, although not directly addressing the pivotal question before us, reached a contrary result. 574 S.W.2d 785. We hold that the inhabitant must be registered to vote and affirm the judgment of the court of civil appeals.

The State of Texas, acting through the County Attorney of Denton County, upon the relation of Clyde T. McWilliams and four other persons brought this quo warran-to proceeding against the Town of Oak Point to have three annexation ordinances declared invalid. These ordinances were passed on March 21, April 25, and May 31, 1977 and represent the second attempt to annex these adjoining lands. The first attempt was stipulated to be void and is not involved in this appeal. The challenge to the annexations was that the three petitions filed under Article 974 which forms the basis of the ordinances had not been signed by a majority of the qualified electors who resided in any of these territories.

At the conclusion of the evidence, the trial court overruled respondent’s motion for an instructed verdict and submitted three issues to the jury. These issues were in the same form except each inquired about a different territory to be annexed and each was answered as follows:

“Do you find from a preponderance of the evidence that a majority of qualified electors who reside in the territory described (each of the three territories sought to be annexed), signed the petition for annexation and thus voted in favor of annexing that territory to the Town of Oak Point, Texas?
Answer: ‘We Do Not’ ”

The parties now agree that the evidence conclusively establishes that each of the three petitions was signed by a majority of the inhabitants of the respective territory covered by each petition who were REGISTERED to vote at the time of signing the petition. However, if registration was not required, there was not a majority of the qualified electors who signed any of the three petitions.

It is well established that Article 974 does not require a formal election by ballot-box to determine the will of the inhabitants of the territory desiring annexation. This rule was established by this Court in Graham v. City of Greenville, 67 Tex. 62, 2 S.W. 742 (1886) wherein a “vote” by petition was upheld. We said:

“Neither article 503 [the predecessor to article 974] of the Revised Statutes, nor any other law of our state, provides in terms that the will of the inhabitants of the territory proposed to be added to an adjoining city shall be ascertained at an election held as in cases of elections by the people. The article recited does not provide for an order for an election, nor by whom it is to be issued, nor for any notice to be given, nor the time, place, and manner in which it shall be held, nor to whom the returns shall be made. In fact, none of the machinery provided in cases of popular elections, and none of the safeguards thrown around the ballot-box to obtain a fair expression of the popular will, are prescribed by this article; and we look in vain for them in other portions of our statute law.”

This holding was expressly adopted in State v. City of Waxahachie, 81 Tex. 626, 17 S.W. 348 (1891) wherein a petition signed by a majority of the voters residing in the annexed territory was held sufficient compliance with the statute although there had been no election and no ballot-box voting by the qualified electors residing in said territory. See also, Universal City v. City of Selma, 514 S.W.2d 64 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.).

We have found only one case which considered the question before us as to the meaning of the statutory provision requiring “a majority of the inhabitants qualified to vote for members of the State Legislature.” In City of West University Place v. State, 56 S.W.2d 1081 (Tex.Civ.App.—Galveston 1932, writ ref’d), the jury found that two of the signers of the petition for annexation had not paid their poll tax for 1928 and that neither was an inhabitant of the territory. The court of civil appeals affirmed the judgment of the trial court which voided the annexation after concluding:

“We have reached the conclusion that there was ample evidence to support the findings of the jury that neither Mr. nor Mrs. Blankenbecker were qualified voters in the territory seeking to be annexed, and that neither of them was an inhabitant of such territory.”

In view of the holding that these two persons were not inhabitants of the territory, the holding that they were not qualified voters because of their failure to pay poll tax was not actually necessary to the judgment of the court. However, since the case was decided after 1927, this Court’s denial of the application with an outright “refusal” indicated that not only was the judgment of the court of civil appeals a correct one, but that the principles of law declared in the opinion of that court were correctly determined. Tex.Rev.Civ.Stat. art. 1728 (1925), as amended by 1927 Tex. Gen.Laws, ch. 144, at 214, now Rule 483, Tex.R.Civ.Pro.; Myers v. Martinez, 160 Tex. 102, 326 S.W.2d 171 (1959).

Since “registration” of a voter was substituted for the “poll tax” as a requirement for voting by the 1967 amendment to Article VI, Section 2 of the Texas Constitution, it would follow that under the holding in the West University Place ease, “registration” would be required before an inhabitant would be qualified to vote under Article 974.

The qualifications of an “elector” and the requirements for “registration” are set forth in Article VI, Section 2 of the Texas Constitution as follows:

“Every person subject to none of the foregoing disqualifications who shall have attained the age of twenty-one (21) years and who shall be a citizen of the United States and who shall have resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote, shall be deemed a qualified elector; provided, however, that before offering to vote at an election a voter shall have registered annually, but such requirement for registration shall not be considered a qualification of an elector within the meaning of the term ‘qualified elector’ as used in any other Article of this Constitution in respect to any matter except qualification and eligibility to vote at an election.”

It is significant that the Legislature in enacting Article 974 did not require a majority of the inhabitants who were “qualified electors” in the territory to favor annexation, but required a majority of inhabitants who were “qualified to vote for members of the State Legislature.” It cannot be seriously questioned that the Texas Constitution and Election Code require registration before a person can vote for members of the State Legislature. See Tex. Const, art. VI, § 2; and Tex.Elec.Code Ann. art. 5.02. We recognize that by requiring that the inhabitants be “registered voters” the legislature provided a ready means of ascertaining the number of persons eligible to vote for annexation. Without such a requirement, it would be very difficult for the city council to determine if a majority of the inhabitants favored annexation.

We, therefore, hold that Article 974 requires that the inhabitants of the territory to be annexed be qualified electors who have registered to vote. Since petitioners concede that a majority of the inhabitants in each of the three annexed territories who meet this test signed the petitions favoring annexation, the court of civil appeals properly entered judgment that petitioners take nothing by this quo warranto suit against the Town of Oak Point, Texas.

The judgment of the court of civil appeals is affirmed.

      . Article 974, Texas Revised Civil Statutes Annotated, provides:
      “When a majority of the inhabitants qualified to vote for members of the state legislature of any territory adjoining the limits of any city incorporated under, or accepting the provisions of, this title, to the extent of one-half mile in width, shall vote in favor of becoming a part of said city, any three of them may make affidavit to the fact to be filed before the mayor, who shall certify the same to the city council of said city. The said city council may, by ordinance, receive them as part of said city; from thenceforth the territory so received shall be a part of said city; and the inhabitants thereof shall be entitled to all the rights and privileges of other citizens, and bound by the acts and ordinances made in conformity thereto and passed in pursuance of this title.” (Emphasis ours)

      . The trial court instructed the jury as follows:
      “2, You are instructed that our law provides that the following classes of persons shall not be allowed to vote in this State, to-wit:
      (1) Persons under eighteen (18) years of age.
      (2) Idiots and lunatics.
      (3) Paupers supported by any County.

        (4) AH persons convicted of a felony, subject to such exceptions as the legislature may make.
      “Every person subject to none of the foregoing disqualifications who shall be a citizen of the^United States and who shall have resided in this State thirty (30) days next preceding an election and the last thirty (30) days within the district or county in which such person offers to vote, shall be deemed a qualified elector; provided, however, that before offering to vote at an election a voter shall have registered, but such requirement for registration shall not be considered a qualification of an elector within the meaning of the term ‘qualified elector’. All persons who have registered to vote are presumed to have all qualifications of electors until the contrary is shown by a preponderance of the evidence.”

      . Article VI, Section 1 of the Texas Constitution, after giving effect to the 26th Amendment to the United States Constitution, provides that the following classes of persons shall not be allowed to vote:
      1. Persons under eighteen (18) years of age.
      2. Idiots and lunatics.
      3. All paupers supported by any county.
      4. All persons convicted of any felony, subject to such exceptions as the Legislature may make.

      .The 26th Amendment to the United States Constitution mandates that this age be lowered to eighteen (18) years.


source: Caselaw Access Project

author: STEAKLEY, Justice.

license: Public Domain

text:
    Thomas C. BOMAR et al., Petitioners, v. TRINITY NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Respondents.
    No. B-8058.
    Supreme Court of Texas.
    March 28, 1979.
    Rehearing Denied May 2, 1979.
    E. B. Underwood, Thomas C. Bomar and Vickie Darlene McQueen, Ballinger, for petitioners.
    Thompson, Coe, Cousins & Irons, Larry L. Gollaher, Dallas, for respondents.
   STEAKLEY, Justice.

Trinity National Life and Accident Insurance Company, Respondents here and the defendants below, issued two major medical insurance policies to Thomas C. Bomar under date of July 10, 1975. Renewal premiums on the policies were paid and accepted for the period of July 10, 1976, to July 10, 1977. Vickie Darlene McQueen, nee Vickie Bomar, a daughter, was an insured dependent. She was married on July 17,1976, and thereafter was hospitalized for surgery and medical treatments from January 23, to February 23, 1977. A claim for benefits was refused by the Respondent insurance company and this suit was instituted by Thomas C. Bomar and his daughter.

In issue is the following limitation of liability in each of the insurance policies:

PART V
LIMITATIONS
A. “Dependent members of the Insured’s family” as used in this policy means the dependent, unmarried child or children of the Insured who are under 18 years of age, and the Insured’s spouse, whose name is listed in the application or endorsed rider on this policy and are insurable in accordance with the general underwriting standards of the Company. The coverage for any child terminates upon marriage or attaining the age of 18 years, nearest birthdate, except if authorized by Insured, full coverage may be continued provided an adult premium is paid beginning at premium-payment date nearest attaining age 18 or upon marriage; however, (i) if Company accepts a premium after such date, the coverage provided by the policy will continue in force subject to any right of cancellation until the end of the period for which premium has been paid,. . . . [Emphasis added.]
ENDORSEMENT
In Part V, LIMITATIONS, Page 6, wherever the words “18 years of age” appear, the words “24 years of age” are to be substituted.

After trial upon an agreed statement of facts, the trial court ruled that the above provision terminating dependent coverage upon marriage was ineffective under Articles 3.70-4 and 3.70-7 of the Tex.Ins.Code Ann. (1963). Judgment was accordingly rendered for the father and daughter that they recover $13,457.34 from the insurance company. The Court of Civil Appeals was of the contrary view and rendered judgment reversing that of the trial court and declaring that the insured take nothing. 572 S.W.2d 790.

It is the position of the Respondent insurance company that upon her marriage Vickie ceased to be a dependent under the terms of the policies quoted above, and for this reason was not covered by the medical policies at the time of the hospitalization. Thomas Bomar and his daughter, Vickie, counter with the contention that the limitation of liability in such respects is ineffective under the provisions of Article 3.70-7.

Article 3.70-4(B) provides that the provisions of the Act govern when policy provisions conflict with any provision of the Act. Article 3.70-7 reads as follows:

If any such policy contains a provision establishing, as an age limit or otherwise, a date after which the coverage provided by the policy will not be effective, and if such date falls within a period for which premium is accepted by the insurer or if the insurer accepts a premium after such date the coverage provided by the policy will continue in force subject to any right of cancellation until the end of the period for which premium has been accepted. (Italics are added.)

This statute provides that the coverage of the policy continues in force during a period for which premium has been accepted by the insurer if the policy contains a provision establishing a date after which the coverage provided by the policy will not be effective. This date can be an age limit, “or otherwise,” i. e., a date established otherwise than by age. In construing the statute we cannot disregard the broadening phrase “or otherwise.” It is generally presumed that every word in a statute is used for a purpose. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1975); Perkins v. State, 367 S.W.2d 140 (Tex.1963); Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93 (1957). The policy limitation that “the coverage for any child terminates upon marriage” necessarily presupposes a date after which the coverage will no longer be effective, i. e., the date of the marriage. Indeed, there is no way in which the policy limitation of coverage to an unmarried dependent can become effective except upon this date, and this is a date established by the policies. The marriage of Vickie having occurred within a period for which premium had been accepted by the insurance company and the policy coverage having continued in force perforce the statute, the insurer is liable for the medical benefits. The trial court found these to be $13,457.34 and the correctness of this sum is not questioned.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.


author: CLINTON, Judge. ODOM, Judge. CLINTON, Judge,

text:
    Alton MINIX, Appellant, v. The STATE of Texas, Appellee.
    No. 56041.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 24, 1979.
    Rehearing Denied April 25, 1979.
    R. Leon Pettis, Beaumont, for appellant.
    Tom Hanna, James S. McGrath, Dist. At-tys., Paul E. Ñaman, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted of the offense of forgery. The jury found him to be an habitual criminal, and the trial court assessed punishment at life. Appellant raised three grounds of error in his original brief, but we find ground of error number one to be dispositive.

The first contention by appellant is that the trial court erred by failing to grant a motion to quash the indictment which alleged in pertinent part:

“that Alton Minix ... did then and there knowingly, with intent to defraud and harm, forge, by possession with intent to utter the same, a writing as follows:”

A copy of the instrument, a check made payable to “Alton Minix” and signed by “Charles H. Weinbaum,” followed the above allegation in the indictment.

The trial court overruled a motion to quash the indictment on the ground that it failed to allege that the act “was done without the consent of the owner or other person entitled to give consent.” Although the language of the motion is not as well drafted as it could be, appellant is apparently complaining that the indictment fails to allege that the writing purports “to be the act of another who did not authorize the act” as provided in V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i).

It is a well settled rule that when the check is set out haec verba in the indictment, the State is not required to allege that the forged instrument purports to be the act of another, so long as the name of the maker is different than the name of the defendant. Biering v. State, 159 Tex.Cr.R. 331, 263 S.W.2d 558 (1953); Watts v. State, 143 Tex.Cr.R. 303, 158 S.W.2d 510 (1942); Wisdom v. State, 122 Tex.Cr.R. 271, 54 S.W.2d 533 (1932); Huckaby v. State, 45 Tex.Cr.R. 577, 78 S.W. 942 (1904). See also Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977), in which both the payee and maker were different names than the defendant. However, V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i) requires additionally that the instrument must purport to be the act of another “who did not authorize that act.” Young v. State, 529 S.W.2d 542 (Tex.Cr.App.1975). In that respect the present forgery statute did not change its predecessor which included “without lawful authority” as “an essential element of the crime of forgery.” Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876 (1955).

In Smith the facts were very similar to the present case. The indictment set out the check in a way that properly “upon its face, purported to be the act of another,” but did not allege that the check was made without lawful authority. This Court held that the indictment was fatally defective, and the case was reversed.

We conclude that Smith is controlling authority, and failure to allege that the writing purported to be the act of another “who did not authorize that act” rendered the indictment fundamentally defective.

For this reason the judgment is reversed and the cause is remanded.

Before the court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

On original submission appellant successfully challenged the trial court’s adverse ruling on his motion to quash the indictment. That motion attacked the failure of the indictment to allege that the act “was done without the consent of the owner or other person entitled to give consent.” To the extent that old code cases address this issue, Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876, cited by the unanimous panel on original submission, is on point. The element of forgery under Art. 979, V.A.P.C. (1925) of “without lawful authority” has been brought forward in V.T.C.A., Penal Code Sec. 32.21(a)(l)(A)(i), which requires that the purported maker “did not authorize the act” of making the writing. Not only was the indictment here defective on the basis urged in the motion to quash, but under Smith it was fundamentally defective.

Although this prosecution was not for forgery by making under Sec. 32.-21(a)(1)(A), it was brought for forgery by possession with intent to utter under Sec. 32.21(a)(1)(C), which by reference expressly incorporates the elements of Sec. 32.-21(a)(1)(A) and (B). Simple use of the word “forge” in the indictment is insufficient to incorporate by reference the missing element. In Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590, a similar argument that the allegation of “unlawful” in a theft indictment was sufficient to supply the missing element that appeared in the statutory definition in V.T.C.A., Penal Code Sec. 31.03(b), was rejected:

“The allegation of ‘unlawfully’ pleads only a conclusion of law omitting the facts necessary to that conclusion.”

The State urges that the decision in this case is in conflict with Jiminez v. State, Tex.Cr.App., 552 S.W.2d 469, and Jones v. State, Tex.Cr.App., 545 S.W.2d 771. The element found missing in the indictment in this case was not expressly considered in those cases. Jones discussed failure of the indictment to allege that the accused knew the instrument was forged, and Jiminez discussed, inter alia, the purport element. Although the language upholding the Jimi-nez indictments against a purport clause challenge does say that the instrument set out purported to be the “act of another who did not authorize the act,” it did so by relying on the “purport” rule that rests on setting out the forged instrument in the indictment in haec verba, and failed to address the fact that the “purport” and “unauthorized act” elements are separate and distinct. Furthermore, the Jiminez prosecutions were for forgery by making, so that the conflict between the allegation that the accused in fact made the instrument and the appearance from the face of the instrument set out haec verba that someone else made it was sufficient to supply the purport element under the haec verba rule. No such conflict arises in prosecutions for forgery by uttering or forgery by possessing with intent to utter.

The judgment on original submission is modified to the extent that prosecution under this indictment is ordered dismissed.

The State’s motion for rehearing is overruled.

CLINTON, Judge,

dissenting.

The course this cause has taken is illustrative of transitional difficulties in moving from the ways of the old penal code into the course of the new one. As author of the original panel opinion, I find myself in the anomalous position of supporting the motion for rehearing while other of my Brothers now believe not only that the indictment is defective, but fatally so. But since that opinion we have discussed and considered substantially the same problem in a variety of contexts and, upon reflection, my best judgment on the matter of determining sufficiency of an indictment generally is that we should not be unduly influenced by earlier treatment of pleadings under statutes preceding and repealed by the new penal code. Rather we must address such issues that are presented with the format, definitions, purposes and objectives of that code firmly in mind. See V.T.C.A., Penal Code Section 1.02(2) and Introduction, 1 V.T.C.A., Penal Code XIII.

In this particular case the indictment is drawn from the “element of offense” requirements of V.T.C.A., Penal Code Section 1.07(a), and the broad statutory statement of the offense with incorporation of the prescribed method or manner by which the underlying facts suggest it was committed. That is, the indictment alleges that the accused did then and there “knowingly, with intent to defraud and harm, forge, by possession with intent to utter the same, a writing as follows: (setting out a copy of the writing).” In rearranged order, the indictment tracks applicable portions of Section 32.21, V.T.C.A., Penal Code:

(b) A person commits an offense if he forges a writing with intent to defraud or harm another.
* * * * * *
(a) For purposes of this section:
(1) “Forge” means:
******
(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.

An instrument is forged within the meaning of Paragraph (A) if it has been altered, made, completed, executed, or authenticated so that it purports, e. g., “to be the act of another who did not authorize that act.”

Whatever else they might be called — essential ingredients, necessary elements, constituent elements — it is clear to me that the indictment in this case substantively states an offense to withstand an exception lodged under Article 27.08, V.A.C.C.P., and, further, sets forth in plain and intelligible words the “ultimate facts” constituting the offense, see Article 21.02, V.A.C.C.P., to render it invulnerable to an exception as to form contemplated by Article 27.09, Paragraph 2, Y.A.C.C.P. A person who is charged with forging a writing, by possessing it with intent to utter it, with intent to defraud or harm another, has been adequately informed of his offensive conduct. Averring one knowingly, with intent to defraud and harm, possessed a forged writing with intent to utter it, and displaying it informs that the writing purports to be the act of another who did not authorize that act.

The content of the indictment before us was more than enough under old Article 998, V.A.P.C., 1925. Fifer v. State, 451 S.W.2d 757 (Tex.Cr.App.1970) and cases cited.

Now that every forgery offense is a species of fraud denounced in Chapter 32, V.A. T.C., Penal Code, the gist of the offense is “intent to defraud or harm” another. Stuebgen v. State, 547 S.W.2d 29,32 (Tex.Cr.App.1977). The new code does not provide a definition of “defraud” or “fraud,” but we are directed by Section 1.05(b) to apply certain sections of the Code Construction Act, Article 5429b-2, V.A.C.S., to construction of the penal code. Section 2.01 of that Act provides in pertinent part:

“Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

On the civil side there is a great body of law on the subject of fraud, and it is to that we may, and I do now, resort to determine what have been held to be ingredients of fraud in aid of our construction of “intent to defraud.”

Anderson v. Paschall, 60 S.W.2d 1087 (Tex.Civ.App.—Fort Worth 1933), affirmed, Paschall v. Anderson, 91 S.W.2d 1050 (Comm.App., Opinion Adopted, 1936) states precisely:

“ ‘Actual fraud’ has a definite meaning in our law. Its distinguishing feature from other types of fraud is the dishonest intention.”

For the essence of actionable fraud is not that false representations were intentionally made but that their maker intended that they be acted upon — a distinction pointed out in Wilson v. Jones, 45 S.W.2d 572, 575 (Comm.App., Holdings Approved, 1931) and reiterated by the court in Custom Leasing, Inc. v. Texas Bank and Trust Co., 516 S.W.2d 138, 144 (Tex.1974).

From the settled meaning of fraud and established rules concerning it in the civil law, I glean that one who intends to defraud by possessing with intent to utter a check that is in fact a forgery commits an offense denounced by Section 32.21(a)(1)(C) and (b). The thrust of the penal prohibition is the fraudulent intent that motivates one to possess a forged writing until an opportunity to utter it is presented. The dishonest intention is the conscious objective or desire that the person to whom the writing is presented will act on it to the benefit of the presenter and the correlative detriment of another. To form that objective, or hold that desire, one must necessarily have accepted the notion that the writing may not be what it appears to be. But, as in civil fraud, one need not actually know that the writing purports to be the act of another who did not authorize that act. It is enough' that one consciously engage in whatever mental exercise, concerning the facts and circumstances as they are conceived by him to be, is sufficient to conjure up the evil intent to defraud. Thus, short of mental certitude of the false nature of the writing, one may guess, surmise or believe that it is — indeed, one may even be foolhearty enough to act on fond hope. Whatever the psychic processes follow awareness of characteristics of a writing that comes to hand, if the consequence is formulation of an intent to defraud by uttering it, to inform the possessor that the writing purports to be the act of another who did not authorize it is a redundant communication.

Moreover, again as directed by the Code Construction Act, we find that the word “utter” has a particular meaning when used in connection with a writing that labels the writing as false or forged. Thus from Black’s Law Dictionary, Revised 4th Edition, 1716 we are instructed, “To utter, as used in a statute against forgery and counterfeiting, means to offer ... a forged instrument, with the representation, by words or actions, that the same is genuine.” Thus where, as here, the indictment alleges possession with intent to utter, the accused is informed that the State claims the accused possessed a false writing he intended to present as true.

What has been demonstrated, then, is that in matters of fraud involving a false representation the vice is in the making with intent that it be accepted and relied upon rather than knowledge of the maker that the representation is false and, furthermore, that an allegation of intent to utter a writing provides notice that the writing intended to be passed as true is actually false — the writing purports to be an act that was not authorized. Every aspect of offensive intent in context of forbidden conduct was presented in the indictment in this cause.

Indeed, it may be argued that more was set out than necessary. To elaborate, using the idiom suggested elsewhere, the facts found by the grand jury that are identified in its indictment and thereby communicated to the accused are that on the stated date in the designated location the defendant did:

1. knowingly — you were aware of the nature of your conduct and existence of the circumstances surrounding it;
2. with intent — you had the conscious objective or desire to engage in that conduct or cause the result;
3. to defraud — you meant to induce another to rely on the representations appearing on the face of the writing, one or more of which is false, to the monetary detriment of another;
4. forge — the writing you possessed purports to be the act of another who did not authorize that act;
5. by possessing — you had actual care, custody, control and management of the writing;
6. intent to utter — you meant to present the false writing as true to another in exchange for monetary consideration;
7. a writing — what you possessed was this check displayed here on the face of this indictment that along with other identifying data bears your name as payee and the purported signature of Charles H. Weinbaum.

In short, by its indictment the grand jury is communicating to the accused that these are the facts as we have found them and that the State, through its prosecuting attorney, expects to prove. Meeting all the statutory requirements, and providing ample notice, the indictment did not suffer the deficiency claimed in the motion to quash. The trial court, therefore, did not err in overruling it.

DOUGLAS, J., joins.

      . V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i) provides in pertinent part:
      “(a) For purposes of this section:
      (1) ‘Forge’ means:
      (A) to alter, make, complete, execute, or authenticate any writing so that it purports: (i) to be the act of another who did not authorize the act; . .”

      . Indeed, the opinion of the same panel in Landry v. State, (No. 57,533, delivered April 11, 1979) expressly rejects the proposition that omitting the phrase “who did not authorize that act” renders an indictment fundamentally defective. It is obvious that the majority view of the Court is otherwise.

      .In the instant case, the State concedes, as it must, that the “purport” facts must be proved but just because a subsidiary fact must be proved does not, in my view, mean that such a fact is a part of the “everything” that Article 21.03, V.A.C.C.P., indicates should be stated in the indictment. Proof that the writing purports to be the act of another who did not authorize that act is but an evidentiary showing supporting the ultimate fact of intent to defraud and harm. If any reconciliation between Article 21.03, V.A.C.C.P. and other provisions of the Code of Criminal Procedure or of the Penal Code is deemed appropriate, we may accomplish that by holding “everything” in the former refers to the “appearance” on the face of the indictment that an offense has been committed, “plain and intelligible words” stating the offense and “element of offense” in the latter.

      . “If any person shall knowingly have in his possession any instrument of writing, the making of which is by law an offense, with intent to use or pass the samé as true, he shall be confined .

      . That statement, written by Judge Tom Davis then as a Commissioner and approved by the Court, was quoted approvingly by Presiding Judge Onion in the unanimous opinion in Baker v. State, 552 S.W.2d 818 (Tex.Cr.App.1977), a forgery by passing case.

      . The former statutes were couched in terms of “pass” and “use or pass,” Articles 996 and 998, P.C., 1925. The new code, however, proscribes “to issue, transfer, register the transfer of, pass, publish, or otherwise utter” and to possess with intent “to utter.” Thus, we must ascertain the meaning of “utter” as intended by the Legislature in 1973 rather than the meaning of “use or pass” in the Old Code more than 125 years ago.

      . Erroneously styled a motion to quash, the pleading is actually an exception to form contemplated by Article 27.09, Paragraph 2, V.A.C. C.P., and as such, if sustained by the trial court, the indictment would have been amended in accordance with Article 28.09, V.A.C.C.P., interlining that the purported maker of the writing “did not authorize the act.” That amendment would not provide any additional factual information to the accused. Thus, denial of the motion did not prejudice “his substantial rights.” If the mandate of Article 21.19, V.A.C.C.P. is followed the indictment “shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form . . . ”


author: TOM G. DAVIS, Judge.

text:
    William A. CHANCE a/k/a W. A. Duke, Appellant, v. The STATE of Texas, Appellee.
    No. 57449.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 14, 1979.
    Rehearing En Banc Denied April 25, 1979.

      Charles E. Campion and Don W. King, Jr., San Antonio, for appellant.
    Bill M. White, Dist. Atty., David A. Ber-chelmann, Jr. and Monica L. Donahue, Asst. Dist. Attys., San Antonio, for State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the theft of services valued over $200 but less than $10,000. V.T.C.A. Penal Code, Sec. 31.04(a)(1). Punishment was assessed at three years’ imprisonment. V.T.C.A. Penal Code, Sec. 31.04(c)(4).

Appellant’s sole ground of error challenges the sufficiency of the evidence. This contention centers around what portion of an automobile repair bill can properly be characterized as charges for services, as opposed to charges for property.

Appellant had taken his car to a repair shop to have collision damages repaired. The estimate for these repairs was $481.86. The record reflects that these repairs were authorized by the appellant, and the work done as per agreement. The final bill for these repairs was $481.86.

The only testimony regarding what portion of the bill was for services was elicited from the shop foreman during appellant’s cross-examination. He testified the actual labor, according to the estimate that he had made, was $176.40. Although he stated that “paint on the vehicle” was estimated at $57.50, he did not elaborate on the basis of this charge. There was no further questioning by either party regarding what services and labor were performed, nor what portion of the total bill was a charge for each.

The appellant paid the entire bill with a check for $481.86 drawn on the account of “Duke and Frautschi Farming and Hair Styling Associates” at an Odessa bank. The check was returned marked “Account Closed.”

Further testimony at trial established that the person who signed the check was the appellant, and that proper procedures had been followed by the repair shop in regard to collection so as to raise a presumption of appellant’s intent to avoid payment. See V.T.C.A. Penal Code, Sec. 31.06.

Appellant contends that only the labor can properly be considered as a service, thus the State’s failure to show labor in excess of $200 renders the evidence insufficient. The State responds that the evidence shows labor performed of a value in excess of $200.

The State points out that the $11.38 in state sales tax would be proper tax on $227.61 and concludes that since parts are taxed and labor is not, the remainder of the bill was for labor. Thus, the State relies on the estimate and final bill that were entered into evidence as proof of a theft of services in excess of $200.

The estimate for the repairs was made on the repair shop’s form. This form was divided into three columns. These columns were “Operations To Be Performed” (“Operations”), “Material,” and “Labor.” On each line below the “Operations” heading a part or repair was listed. On the same line a figure was entered under the column headed “Material” or “Labor,” or both. The “Material” column was divided into two sub-columns, one titled “List” and the other “Net.” On the first line of the estimate, under “Operations” was “Refinish Damaged Area,” and under the sub-column “Net” was $57.50. On the second line under “Operations” was “1 Frt Bumper,” under sub-column “Net” was $50.75,” and under “Labor” was “1.2.” (The 1.2 indicates labor in hours and tenths of hours. Our calculations reveal a labor charge of $9.00’ per hour.) The remainder of the estimate itemized each labor and parts charge, and was totaled as follows:

“Total Parts 183.02
Net Items 110.75
Total Labor 176.40
Tax 11-69
Total Estimate 481.86’

The final bill was also for a total of $481.86, but does not conform to the estimate as to the itemizing of charges. All parts are listed by identification numbers only, with no further description. The $50.75 charge for the bumper had disappeared, while the $57.50 charge was itemized only as “Paint” under the “Labor Instructions” column in the final bill. Also in this “Labor Instructions” column is a charge denoted as “Repair as per est. $185.37.” These charges are totaled on the bill as:

“Paint and Body Labor 185.37
Parts, Repairs 227.61
Paint - Body 57.50
State Sales Tax 11.38
Cash Sale 481.86”

The State did not examine the shop foreman as to what the charges were for. The State introduced no evidence at trial as to what items sales tax is properly charged on. The jury had only the shop foreman’s testimony and the conflicting estimate and bill as evidence of the value of the services rendered.

The bill and estimate are inconclusive as to what each separate charge was made for. •The contested “Paint” charge could be for either labor, paint, or both. Considering the evidence in the light most favorable to the verdict, the State has failed to prove labor of a value over $200.

We must now determine the issue as framed by the appellant, whether the definition of service is broad enough to include tangible property affixed as part of the service rendered.

V.T.C.A. Penal Code, Sec. 31.04, as pertinent here, provides:

“(a) A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:
“(1) he intentionally or knowingly secures performance of the service by deception, threat, or false token;

Service is defined in V.T.C.A. Penal Code, Sec. 31.01(7), as:

“(7) ‘Service’ includes:
“(A) labor and professional service;
“(B) telecommunication, public utility, and transportation service;
“(C) lodging; restaurant service, and entertainment; and
“(D) the supply of a motor vehicle or other property for use.”

V.T.C.A. Penal Code, Sec. 31.03(a)(1) and (b)(1), provides:

“(a) A person commits an offense if, with intent to deprive the owner of property:
“(1) he obtains the property unlawfully; or
* * * * * *
“(b) Obtaining or exercising control over property is unlawful if:
“(1) The actor obtains or exercises control over the property without the owner’s effective consent;

Property is defined in V.T.C.A. Penal Code, Sec. 31.01(6), as:

“(6) ‘Property’ means:
“(A) real property;
“(B) tangible or intangible personal property including anything severed from land; or
“(C) a document, including money, that represents or embodies anything of value.”

First, it is clear that the appellant committed an offense under both Sec. 31.04 and Sec. 31.03, supra. His intent to deprive or avoid payment is presumed under these facts as set out in Sec. 31.06, supra, which provides as pertinent here:

“(a) If the actor obtained property or secured performance of service by issuing or passing a check or similar sight order for the payment of money, when the issuer did not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders then outstanding, his intent to deprive the owner of property under Section 31.03 of this code (Theft) or to avoid payment for service under Section 31.04 of this code (Theft of Service) is presumed (except in the ease of a postdated check or order) if:
“(1) he had no account with the bank or other drawee at the time he issued the check or order; or
“(2) payment was refused by the bank or other drawee for lack of funds or insufficient funds, on presentation within 30 days after issue, and the issuer failed to pay the holder in full within 10 days after receiving notice of that refusal.”

The State chose to proceed with the offense of Theft of Services, however, and must prove that offense.

The definition of services in Sec. 31.01(7), supra, would clearly include car repair labor, but is silent as to whether property affixed as part of such labor is a “service.” Section 31.01(7), supra, does specify that other hybrid “labor-property” transactions, such as “restaurant service,” are included as a theft of service. A close inspection of these other hybrid transactions reveals a distinction between those transactions and the transaction that occurred in the present case.

The hybrid transactions specifically included in Sec. 31.01(7)(B-D) involve the rendering of almost unseverable combinations of property and labor. These listed transactions are generally quoted at a set price, without regard to the competent value of the labor and property expended. Both historically and by current custom the transactions listed in Sec. 31.01(7)(B — D), supra, are billed to the user with no differentiation between labor and property involved.

This auto repair transaction was rendered at a price set to accommodate each situation after consideration of the component labor and property separately. Rather than the inseparable transactions discussed above, this record reflects that an auto repair transaction involves a charge for parts and a separate charge for the labor expended to affix those parts.

In the Practice Commentary to Sec. 31.04, supra, the definition of service is discussed as follows:

“ ‘Service’ is defined broadly in Section 31.01 to include almost anything that is ordinarily provided for compensation but that was traditionally excluded from theft because it is not classified as ‘property.’ ” Searcy & Patterson, Practice Commentary to V.T.C.A. Penal Code, Sec. 31.04 (1974).

The classification of telecommunications as a service exemplifies a transaction ordinarily provided for compensation that would not traditionally be classified as property. The sale of auto parts, however, even when part of a repair transaction, would still be classified as property both traditionally and under the present Code.

We hold that the auto parts affixed in this case are clearly severable from the labor expended, thus are not such a part of that labor as to render that property a service.

We are not unmindful of the difficulties wrought by the former Code’s narrow definition of theft offenses. We heartily agree with the opinion expressed in the Practice Commentary to V.T.C.A. Penal Code, Sec. ’ 31.02, in that:

“No part of the old Penal Code produced more confusion, more appellate litigation, and more reversals on technicalities unrelated to the actor’s guilt or innocence than the multitude of offenses proscribing criminal acquisitions of another’s property. Although the theft offenses attempted to separate guilty from innocent acquisitions, they did so clumsily, and their effect all too often was to embroil the courts in nice questions about the appropriateness of conviction under one offense label as opposed to another. The distinctions between the various offenses were unnecessary for establishing the point at which acquisitive conduct becomes criminal — that can be done generally — and they provided no rational basis for penalty determinations or for the provision of defenses; they did, however, place unnecessary obstacles before the conviction of the guilty.” Searcy & Patterson, Practice Commentary to Y.T.C.A. Penal Code, Sec. 31.02 (1974).

Our decision today does not place any obstacle to prosecution of offenses such as appellant’s, however.

V.T.C.A. Penal Code, Sec. 31.09, provides: “When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.”

Under Sec. 31.09, supra, both the theft of service and the theft of property can be charged in one indictment and prosecuted as a single offense. The value of the services and property could have been aggregated to raise the offense to a third degree felony, even if neither theft amounted to over $200 standing alone. Sec. 31.09, supra; Tucker v. State, Tex.Cr.App., 556 S.W.2d 823. Thus, this decision will not impede the prosecution of hybrid “service-property” offenses such as the one in the present case.

We hold only that the evidence was insufficient to prove the theft of services in excess of $200. This is important in light of the Supreme Court’s decisions in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), which bar further prosecution when the evidence is found insufficient to support a conviction. It should be noted that the Supreme Court did not reach the issue of whether the defendant could be retried for another offense, but held only that another trial on the same offense was barred by double jeopardy. Greene v. Massey, 98 S.Ct. at 2154, n. 7.

The judgment is reversed and reformed to acquittal insofar as further prosecution for the theft of services under Sec. 31.04, supra, is concerned.

      . See Wages v. State, Tex.Cr.App., 573 S.W.2d 804.


author: CLINTON, Judge.

text:
    Ex parte Leroy MOORE, Appellant.
    No. 60174.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.
    Rehearing En Banc Denied May 2, 1979.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from an order of the trial court, following a habeas corpus hearing on November 7, 1975, remanding appellant to custody for extradition to the State of Florida. Appellant’s only ground of error on appeal is that he was not allowed to challenge the probable cause for the arrest warrant issued in the State of Florida.

At the habeas corpus hearing the State began with testimony from Barbara Williams, a deputy sheriff for Tarrant County who handles extradition matters. Through her testimony the State introduced a Governor’s warrant from the State of Texas which had been served upon appellant. The regularity of that warrant is not challenged in this appeal.

The State then called Amy Harmon, an investigator for the Ninth Judicial Circuit State Attorney’s Office of Florida. Her testimony showed that she had been involved in the investigation of a “cocaine transaction” in which appellant was implicated in Orlando, Florida, on the evening of April 4, 1978. She identified appellant as the same Leroy Moore wanted for arrest in that State. The witness further testified that as a result of the investigation an indictment, was issued in Florida naming appellant as the defendant. As a result of the indictment the Florida arrest warrant was issued, and the investigator proceeded “to have that warrant in that indictment entered into the process of extradition.”

Appellant’s attorney was then allowed over objection to cross-examine the investigator concerning the sufficiency of the probable cause for the arrest warrant issued in the State of Florida. The testimony showed that a paid informant had told Florida investigators that appellant would be involved in a cocaine transaction on the evening of April 4, 1978, and that he would arrive at the Orlando airport the afternoon of that same date. Investigator Harmon went to the airport and saw appellant arrive at the time the informant had stated. An electronic monitoring device was attached to the confidential informant who met with several persons the evening of April 4, 1978. The conversation recorded revealed a selling of three ounces of cocaine to appellant and one other person for $3500. At that point the trial judge ended the cross-examination and found that probable cause had been shown for the arrest warrant issued in the State of Florida.

It is apparently appellant’s position on appeal that he was not allowed sufficient latitude in cross-examining investigator Harmon on the issue of probable cause to arrest in the requesting state. We are faced with the threshold question of whether a defendant in an extradition hearing has a right to inquire at all into the probable cause for arrest in the requesting state when a Governor’s warrant which is regular on its face has been introduced into evidence at the extradition hearing.

Extradition proceedings are governed by Article 51.13, Vernon’s Ann.C.C.P., and issuance of the Governor’s warrant is described in Section 7 of that Article. We note that the Governor’s warrant and supporting papers are not included as part of the record in this appeal. The statement of facts indicates that such a warrant was introduced through the testimony of Deputy Williams. Investigator Harmon’s testimony on direct indicated that the Governor’s warrant was based on an indictment and search warrant from Florida. We will assume those facts to be true since neither is challenged in this appeal and none of the documents were included by appellant in the record before us.

This precise question was addressed by the United States Supreme Court in its recent decision in Michigan v. Doran, -U.S. -, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978). In that case the defendant petitioned for writ of habeas corpus attacking the validity of a governor’s extradition warrant issued pursuant to the Uniform Criminal Extradition Act as adopted by the State of Michigan. The Michigan Supreme Court reversed the denial of the requested habeas corpus relief on a finding that the requesting State, Arizona, failed to show a factual basis for its determination of probable cause to arrest. The documents from Arizona supporting the Michigan Governor’s warrant stated specifically that there had been a judicial finding of “reasonable cause” for arrest. However, the Michigan Supreme Court held that the documents were based on “conclusory language” and the supporting affidavits failed “to set out facts which could justify a Fourth Amendment finding of probable cause.” The United States Supreme Court reversed and held that “once the governor of the asylum state has acted on a requisition for extradition based on the demanding state’s judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state.” 99 S.Ct. at 536.

As can be seen by the above language, the precise holding of the case is that the right to a probable cause inquiry in the asylum state is foreclosed when the Governor’s warrant is based on a “judicial determination” in the requesting state that probable cause for the arrest exists. “[Wjhen a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination.” 99 S.Ct. at 536. A statement in the supporting papers from the requesting state that such a judicial determination has been made is apparently sufficient to satisfy that test. It therefore follows that a defendant’s right to challenge probable cause in the requesting state only arises if the documents supporting the Governor’s warrant are insufficient to establish that a judicial determination of probable cause has been made in the requesting state.

Appellant cannot contend that the sup-porting documents for the Governor’s warrant in this case fail to show a judicial determination of probable cause in the State of Florida because the documents were not made a part of the record in this appeal. Further, even if the documents failed to show that a probable cause determination had been made, appellant was allowed extensive cross-examination of Investigator Harmon which clearly established that probable cause existed for appellant’s arrest.

For these reasons the judgment below is affirmed.

      . Texas has also adopted the Uniform Criminal Extradition Act in the form of Article 51.13, Vernon’s Ann.C.C.P.

      . Appellant’s counsel did have Deputy Williams read into the record the application for requisition made by the affected state attorney in Florida which states, in part, that Leroy Moore was charged with the crime of possession of cocaine “as is shown by a certified copy of the affidavit and warrant made before and issued by a magistrate or an indictment duly found by a grand jury attached hereto . When extradition is sought on the basis of an indictment that the grand jury found probable cause is presumed, Ex parte Manzella, 452 S.W.2d 913 (Tex.Cr.App.1970).


author: ROBERTS, Judge.

text:
    Kenneth John LOWRY, Appellant, v. The STATE of Texas, Appellee.
    No. 56928.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 14, 1979.
    Rehearing En Banc Denied May 2, 1979.

      James T. Stafford and Allen C. Isbell, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Michael C. Kuhn and Allen Stilley, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

In an unpublished per curiam opinion delivered December 7, 1977, we abated the present appeal from a conviction for aggravated rape, see V.T.C.A., Penal Code, Section 21.03, in order for the trial court to determine why an appellate brief had not been filed in the appellant’s behalf. See Lowry v. State, 558 S.W.2d 898 (Tex.Cr.App.1977); see also Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970). Appellant’s brief is now before us for our consideration and the appeal has been ordered reinstated.

Appellant asserts that the court’s charge to the jury was fundamentally defective in that it instructs the jury that a verdict of guilty may be found upon a theory not alleged in the indictment. We agree and reverse the judgment of conviction.

Although the indictment alleged aggravated rape by “intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death,” in its charge to the jury applying the law to the facts, the court instructed the jury under all theories of culpability under Section 21.03, supra. It is now well established that such an enlargement in the charge upon the allegations in the indictment constitutes fundamental error. Clements v. State, 576 S.W.2d 390 (Tex.Cr.App.1979); Todd v. State, 576 S.W.2d 636 (Tex.Cr.App.1979); Cullum v. State, 576 S.W.2d 87 (Tex.Cr.App.1979); Jackson v. State, 576 S.W.2d 88 (Tex.Cr.App.1979); McGee v. State, 575 S.W.2d 563 (Tex.Cr.App.1979); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.


text:
    Philip Abbott MASQUELETTE, Appellant, v. The STATE of Texas, Appellee.
    No. 56034.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 21, 1979.
    Rehearing En Banc Denied May 2, 1979.

      Philip Abbott Masquelette, pro se.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for speeding under Art. 6701d, Secs.* 166 and 169B, V.A.C.S. Punishment was assessed by the court at a fine of $101.00.

The record reflects that this case was originally tried in the Justice of the Peace Court, Precinct No. 1, of Fayette County. Appeal was taken to the County Court of Fayette County. The present appeal is from appellant’s conviction in the county court.

Initially, appellant contends that he was denied due process of law under the Fourteenth Amendment to the United States Constitution when he was tried before a non-lawyer county judge.

In Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.), cert. denied, 423 U.S. 1018, 96 S.Ct. 454, 46 L.Ed.2d 390 (1975), this Court noted that there is no constitutional or statutory requirement in Texas that a county judge be an attorney. The only qualification concerning legal knowledge or training is that a county judge be “well informed in the law of the State.” Art. 5, Sec. 15, Constitution of Texas. See also Art. 1927, V.A.C.S. Ex parte Boss, supra, was decided in accordance with two prior Texas cases, Ex parte Craig, 150 Tex.Cr.R. 598, 193 S.W.2d 178 (1946), and Little v. State ex rel. Parsel, 75 Tex. 616, 12 S.W. 965 (1890). The appellant argues that the recent decision of the United States Supreme Court in North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), mandates a reconsideration of our holding in Ross.

In North, the specific question presented to the United States Supreme Court was whether an accused subject to possible imprisonment was denied due process when he was tried before a non-lawyer police court judge. The Supreme Court declined to decide whether a defendant may be convicted and imprisoned when the only trial afforded him is before a lay judge, however, as Kentucky procedure entitled him to a trial de novo before a lawyer judge. Cf. Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976). Thus, North is not dispositive on this issue.

Appellant has presented no other reason for us to depart from our holding in Ross, and we decline to do so. Appellant’s contention that he was improperly tried before a non-lawyer judge is overruled.

Appellant next contends that Art. 6701d, Sec. 169B, V.A.C.S., the statute enabling the State Highway and Public Transportation Commission to set temporary maximum speed limits, is unconstitutional. He maintains that this statute is an unconstitutional delegation of the Legislature’s authority.

In Ex parte Smith, 441 S.W.2d 544, this Court reviewed the constitutionality of Art. 6701c-3, V.A.C.S. This statute delegated the authority to set minimum safety standards for motorcycle helmets to the Department of Public Safety. Riding a motorcycle without a helmet so approved was a criminal violation. This Court held that the delegation of that authority to the Department of Public Safety was constitutional.

In Ex parte Granviel, 561 S.W.2d 503, this Court was again faced with a challenge to the constitutionality of a statute based on its delegation of authority to an agency. This Court stated:

“Generally, a legislative body, after declaring a policy and fixing a primary standard, may delegate to the administrative tribunal or officer power to prescribe details, Margolin v. State, 151 Tex.Cr.R. 132, 205 S.W.2d 775 (1947); Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177 (1943), such as to establish rules, regulations or minimum standards reasonably necessary to carry out the expressed purpose of the act. Beall Medical Surgical Clinic and Hospital, Inc. v. State Board of Health, 364 S.W.2d 755 (Tex.Civ.App.-Dallas, 1963), and cases there cited.
“Thus, the existence of an area for exercise of discretion by an administrative officer under delegation of authority does not render delegation unlawful where standards formulated for guidance and limited discretion, though general, are capable of reasonable application. Nichols v. Dallas, supra [347 S.W.2d 326 (Tex.Civ.App.-Dallas, 1961)], and cases there cited. So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature’s jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Commissioners Court of Lubbock v. Martin, supra [471 S.W.2d 100 (Tex.Civ.App.-Amarillo, writ ref’d., n. r. e.)].
“In Langford v. State, supra [532 S.W.2d 91 (Tex.Cr.App.1976)], this court decided that Article 6701/1-5, V.A.C.S., did not contain an unconstitutional delegation of legislative powers to the Texas Department of Public Safety in allowing said department to approve methods of breath testing nor in authorizing said department to ascertain the qualifications and competence of individuals who conduct breath testing. See and cf. Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App.1969).”

561 S.W.2d at 514-15.

Article 6701d, Sec. 169B, supra, provides that the State Highway and Public Transportation Commission may establish maximum prima facie speed limits of not more than 70 miles per hour when it finds:

“1. That a severe shortage of motor fuel or other petroleum products exists; and
“2. That the shortage was caused by war, national emergency or other circumstances; and
“3. That a reduction of speed limits will serve to foster conservation purposes and safety; or
“4. The failure to alter state speed limits will prevent the state from receiving revenue for highway purposes from the federal government.”

The section further provides that upon the entry of such an order it shall be filed with the Governor’s Office. After an independent review, the Governor issues a proclamation stating whether or not the necessary facts exist to support the issuance of the Commission’s order. The section also provides that any change in the maximum speed limits made under this section remain effective for a maximum of 120 days unless such conditions are found to continue to exist, in which case the order may be continued in effect for additional 120-day periods.

Thus, Art. 6701d, Sec. 169B, contains standards that limit the discretion of the Commission in its exercise of these delegated powers. These standards are necessary to effect the Legislature’s purpose and are capable of reasonable application. We hold that Art. 6701d, Sec. 169B, supra, is not an unconstitutional delegation of the Legislature’s authority.

Appellant also contends that the subject of Art. 6701d, Sec. 169B, was not properly set out in the title of the enacting bill, and is thus unconstitutional under Art. 3, Sec. 35 of the Texas Constitution. We have reviewed this contention and find it without merit.

Appellant finally contends that the evidence was insufficient to support the conviction.

The State’s case consisted of the testimony of A. F. Hall, a Texas Highway Patrolman. Officer Hall first testified that he was “working radar” on Interstate 10 near Flatonia. He then stated that “the [appellant] was checked by radar at a speed of 67 miles per hour” and that he gave the appellant a ticket for speeding.

Appellant objected to the officer’s next answer, which asserted that it was his personal belief that the appellant was speeding. The trial court sustained this objection. The officer then testified without objection that the appellant was not driving at a speed that was reasonable and prudent under the conditions.

The State rested its case after the above evidence. The appellant called no witnesses regarding the facts of the offense.

Appellant first urges that the State failed to show three essential elements in introducing evidence based on radar monitoring of his speed. He urges that this Court’s decision in Wilson v. State, 168 Tex.Cr.R. 439, 328 S.W.2d 311, requires that the State show that (1) the witness was qualified in the use of radar, (2) that the apparatus be accepted as dependable by the profession concerned with that branch of science, and (3) that the particular radar unit be of an accepted type and in good condition.

Subsequent to our decision in Wilson v. State, supra, this Court has held that the officer’s testimony that he had been both trained to operate the radar set and test it for accuracy is a sufficient predicate to support admission of radar evidence. Cromer v. State, 374 S.W.2d 884; Gano v. State, 466 S.W.2d 730. Thus, as specifically stated in Cromer, the State is not required to call expert witnesses to establish the accuracy of radar.

In the present case, however,, the officer did not testify as to his training and testing of the radar set. We note that his testimony regarding the speed reflected by his radar unit was not objected to by the appellant. Thus, we must decide whether the failure to elicit a proper predicate for his testimony renders the evidence insufficient to support a conviction.

In Romo v. State, 577 S.W.2d 251 (1979), this Court reviewed a similar situation. In Romo, the results of a breathalyzer test had been entered into evidence without any predicate as to the officer’s qualifications or the breathalyzer’s accuracy. In Romo, as here, no objection was made to the officer’s testimony. This Court held that although the State failed to prove the proper predicate for admission of the breathalyzer test results, this error was not preserved for review because of the failure to object.

In the present case, the appellant failed to object to introduction of the radar evidence. Here, as in Romo, the appellant’s failure to object at the time the evidence was offered waived any error.

The appellant also urges that the State failed to establish the posted speed at the place of the violation. Appellant maintains that the trial court could not take judicial knowledge of this fact.

In Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177 (1943), it was stated:

“A proclamation of the Chief Executive of this State, when duly promulgated and filed, occupies a position comparable to laws regularly passed by the Legislature. That a proclamation by the Governor, of and within itself, is notice is further manifested by the fact that the courts are required to take, and do take, judicial notice of the contents thereof. Missouri, K. & T. R. Co. v. McIlhaney, 60 Tex.Civ.App. 598, 129 S.W. 153, and 20 Am.Jur. 67.” See also 23 Tex.Jur.2d, Evidence, Sec. 11.

By minute order No. 69755 passed on March 31, 1975, the State Highway and Public Transportation Commission established the maximum prima facie speed limit in this state at 55 miles per hour. The Governor of Texas issued and placed on file in the office of the Secretary of State Proclamation No. 41-1531 on April 4, 1975, finding that the necessary facts exist to support the issuance of such Commission’s order. The date of the alleged offense, June 9, 1975, was within 120 days of April 4, 1975.

The trial court could take judicial notice that the maximum prima facie speed limit in the State of Texas was 55 miles per hour at the time of the appellant’s offense.

We hold that the evidence is sufficient to support the conviction.

The judgment is affirmed.


author: ODOM, Judge.

text:
    Larry Carnell FORTENBERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 60206.
    Court of Criminal Appeals of Texas, En Banc.
    March 21, 1979.
    Rehearing Denied May 2, 1979.

      Joe L. Cox and Steve L. Hurt, Plainview, for appellant.
    John R. Hollums, Dist. Atty., Floydada, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code See. 19.03. After the jury answered all punishment stage issues in the affirmative, the penalty was fixed at death. Art. 37.071, V.A.C.C.P. This case was tried in Hale County on a change of venue from Motley County.

In his 53rd and 54th grounds of error, appellant contends the trial court submitted an erroneous charge on the law requiring corroboration of an accomplice witness, over his objection.

Appellant was charged with the capital murder of Jalmar “Jinks” Wilson, the sheriff of Motley County, under Sec. 19.03(a)(1), supra:

“A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
“(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman; . . . ”

Article 38.14, V.A.C.C.P., provides:

“A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if- it merely shows the commission of the offense.”

The gravamen of capital murder as alleged against appellant in this case is that the deceased was a peace officer acting in the lawful discharge of an official duty at the time he was killed, and that appellant knew he was a peace officer. The state’s primary witness was Stacy Carter, who acted with appellant in the commission of the offense, and who had pled guilty to the lesser included offense of murder and agreed to testify for the state at appellant’s trial as part of a plea bargain. Carter gave the only direct evidence that appellant knew the sheriff was a peace officer. At the time he was shot, Sheriff Wilson was not wearing a distinctive uniform, a badge, or a gun. The car he was driving displayed no official emblems or words, and was not equipped with lights on top, although there were red lights behind the front grill. The visibility of these lights was in dispute at trial. The passenger who was with the sheriff at the time of the shooting was unable to testify to any conversation by which the sheriff might have informed appellant of his authority.

On the matter of corroboration of the accomplice witness’ testimony, the trial court first instructed the jury generally on the law of Art. 38.14, supra. It then applied the law to the facts in this language:

“The witness, Stacy Albert Carter, is an accomplice, if an offense was committed, and you cannot convict the Defendant upon his testimony unless you first believe that his testimony is true and shows that the Defendant is guilty as charged, and then you cannot convict the Defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said Stace [sic] Albert Carter tending to connect the Defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the Defendant is guilty of -the offense charged against him.”

Appellant timely objected to this portion of the court’s charge, pointing out that it did not direct the requirement of corroboration to the specific elements that render the offense a capital crime. These are appellant’s two objections on this issue that were overruled by the trial court:

“The Defendant objects to the charge as a whole for the reason that the same does not require the jury to find that the accomplice testimony has been corroborated in each element of the offense of capital murder, that is, that the deceased was a peace officer acting in the lawful discharge of an official duty and that this Defendant knew that the deceased was a peace officer.”
“The Defendant objects to the charge as a whole and particularly the three paragraphs contained on page 4 of the said charge in that the same does not require the corroboration of the testimony of the accomplice in this case as to the elements of the case that elevate murder to capital murder, that is, the allegation of ‘peace officer acting in the discharge of an official duty and knowledge of this Defendant that the deceased was a peace officer.’ And the Defendant objects and excepts to the charge of the court contained in paragraph 4 thereof because it does not in any way differentiate the charge of accomplice testimony as to the allegations of murder and capital murder, and is calculated to mislead and confuse the jury as to what corroboration is necessary and whether there is in fact corroboration of the offense of capital murder, as to whether there is corroboration of the allegation in the indictment of acting in the discharge of an official duty and whether there is corroboration of the accomplice that the Defendant knew the deceased was a peace officer.”

In its reply to these two grounds of error the state cites one case for the proposition that it is not necessary to corroborate an accomplice witness on all points, and that the only evidence required is that which would be sufficient to tend to connect the accused with the crime charged.

Although it is the general rule that the “usual” charge on Art. 38.14 is sufficient, that is not always the case. For example, in Warren v. State, 514 S.W.2d 458, the Court recognized the different requirement that applies to prosecutions for receiving and concealing stolen property. In that case the Court wrote:

“Although appellant asserts otherwise, the corroboration need only tend to connect the accused with the offense charged. Article 38.14, V.A.C.C.P. [citation omitted], and make the accomplice’s testimony more likely true than not. The accomplice need not be supported as to every element of the offense. Sheffield v. State, [Tex.Cr.App. 371 S.W.2d 49]. In receiving and concealing cases, the corroboration required includes corroboration of defendant’s knowledge that the property is stolen. Sanders v. State, 144 Tex.Cr.R. 526, 164 S.W.2d 685 (1942); Hall v. State, 373 S.W.2d 252 (Tex.Cr.App.1963), . . .” (Emphasis added.)

Both Hall and Sanders, supra, stand squarely for the proposition that in a prosecution for receiving stolen property, “the thief must be corroborated both as to the theft and the receiving by the accused from the thief, with knowledge that the property had been stolen.”

Another case, Johnson v. State, 144 Tex.Cr.R. 496, 164 S.W.2d 702, spoke directly to the jury charge issue in these words:

“This charge followed approved precedent, and, ordinarily, would be deemed a sufficient application of the law requiring corroboration of an accomplice witness. Quinn v. State, 136 Tex.Cr.R. 131, 123 S.W.2d 890. However, such a charge is insufficient in a case of receiving and concealing stolen property, when the two essential elements of that offense, that is, the theft of the property and the receipt thereof by the accused, are shown by the testimony of the accomplice. In such cases, it is necessary that the accomplice be corroborated both as to the theft and the receipt of the stolen property by the accused knowing it to have been so acquired, and that the charge on accomplice testimony should be so framed.” (Emphasis added.)

Appellant invokes this line of authority by the cases cited in his brief. He points out that the jury instructions to which he objected failed to instruct the jury that the accomplice witness must be corroborated on the very points that make this case one of capital murder, i. e., the elements from Sec. 19.03(a)(1), supra. Just as the accomplice witness in a receiving and concealing case must be corroborated on the matter of the defendant’s knowledge that the property was stolen, appellant argues, likewise must the accomplice witness in this capital murder case be corroborated on the matter of appellant’s knowledge that the deceased was a peace officer.

In Cagle v. State, Tex.Cr.App., 505 S.W.2d 858, after being convicted as an accomplice to receiving and concealing stolen property, the defendant on appeal relied on this same line of authority as support for his position that an accomplice witness must be corroborated on the element of whether the defendant advised, commanded and encouraged the commission of the offense, such as to make him an accomplice. The Court held, “The ‘usual’ charge on accomplice testimony, given by the Court, was not sufficient in this case,” and reversed the conviction for the failure of the trial court to charge the jury on the corroboration of the accomplice witness on the particular point raised.

In Cone v. State, 86 Tex.Cr.R. 291, 216 S.W. 190, relied on in Cagle, supra, the Court held:

“It is not sufficient to charge, in cases of this character, simply that appellant was an accomplice witness and as such to be corroborated. That was necessary, of course, both as to the theft and as to appellant being an accomplice as alleged. The court in directing the minds of the jury as to the law should have instructed them, first, that the state must prove that Pullen was a principal and committed the theft, and that he must be corroborated in his testimony as to that issue; second, that the state must prove that appellant was an accomplice as charged in the indictment, and in the manner charged, and that Pullen’s testimony was not sufficient to prove this; that he must be corroborated as to that issue.”

These cases clearly show that the “usual” charge on accomplice witness testimony is not always sufficient, and the charge “in directing the minds of the jury as to the law” should state that the very basis of the offense charged must be corroborated. See also, Cerda v. State, 147 Tex.Cr.R. 390, 181 S.W.2d 278; Brewer v. State, 93 Tex.Cr.R. 213, 246 S.W. 663.

In capital murder under Sec. 19.-03(a)(1), the very heart of the offense is that the victim was a peace officer (or fireman) who was acting in the discharge of an official duty, and that the accused knew the victim was a peace officer (or fireman). Appellant specifically objected that the accomplice witness instruction failed to direct the jury to the requirements of the law that Stacy Carter’s testimony must be corroborated as to the facts that make this a death penalty case. The trial court committed reversible error when it overruled those objections.

For failure of the court to adequately instruct the jury on the statutory requirement that the accomplice witness must be corroborated, the judgment is reversed and the cause remanded.

DOUGLAS, J., dissents.

      . These cases were reversed for similar errors in seduction cases where corroboration was required by Art. 38.07, V.A.C.C.P. before repeal in 1973, which required corroboration of the complaining witness’ testimony “ . . . by other evidence tending to connect the defendant with the offense charged.”


author: W. C. DAVIS, Judge.

text:
    Ex parte John L. HEBERT.
    No. 58449.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.
    Rehearing Denied May 2, 1979.
    Tom Roberson, court appointed, Houston, Walter E. Boyd, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Chris A. Lorenzen, Asst. Dist. Attys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Appeal is taken from an order denying release in a habeas corpus proceeding in which petitioner sought release on bail pending appeal from a felony conviction.

The record reflects that on August 23, 1977, petitioner was convicted of the offense of rape of a child. The jury assessed punishment at ten (10) years in the Texas Department of Corrections.

On April 7, 1978, a hearing was held on petitioner’s writ of habeas corpus, after which the trial court denied petitioner’s request for bail pending appeal, pursuant to Article 44.04(c), Vernon’s Ann.C.C.P.

Article 44.04(c), supra, provides:

“Pending appeal from any felony conviction where the punishment does not exceed 15 years confinement, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant is likely to commit another offense while on bail. . . .”

Petitioner now contends that the court abused its discretion in denying him bail, as the evidence is insufficient to give the court good cause to believe that he would commit another offense while on bail. We agree.

At the hearing, the State introduced evidence of petitioner’s conviction and sentence. Then the State, without objection by petitioner, introduced into evidence State’s Exhibit No. 2, which was a copy of the report of a psychiatrist who examined petitioner, dated some eight months previously.

In this report, the psychiatric diagnosis was that petitioner “could best be described as a paranoid personality disorder with many borderline schizophrenic symptoms.” The State then introduced Exhibit No. 3, which was a lengthy interpretation of the results of the Minnesota Multiphasic Personality Inventory (MMPI) tests which had been administered to appellant. Attached to this interpretation of petitioner’s test scores was a list of test questions, with the answers given by appellant indicated thereon. Also attached was an uninterpreted statistical chart of petitioner’s raw test scores.

On the basis of State’s Exhibit Nos. 2 and 3, the trial court stated:

“. . .1 am concerned about the psychiatric reports. They do cause me concern to the extent that I believe that there is a reason to believe that there is a probability of [petitioner] committing other offenses and, therefore, I am going to deny bail pending appeal.”

Petitioner correctly contends that the psychiatric report and the report interpreting his test scores were hearsay, and without probative force, even though admitted without objection. Hanna v. State, 546 S.W.2d 318 (Tex.Cr.App.1977); Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975); Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975). Since hearsay evidence, even admitted without objection, constitutes no evidence, we hold that the trial court abused its discretion in denying petitioner bail on this ground.

This case is remanded to the trial court, with an order for the court to either set bail for petitioner or to hold another hearing to determine whether good cause exists to deny bail on another ground.

It is so ordered.

      . • This rule of law is not without criticism. See Hanna v. State, supra (dissenting opinion). However, it remains the rule of law in Texas, and therefore must be applied.