author: PHILLIPS, Judge.

text:
    Ernie W. HARDIE, Appellant, v. The STATE of Texas, Appellee.
    No. 59337.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 31, 1979.

      Earle Cobb, Jr., San Antonio, for appellant.
    Bill M. White, Dist. Atty., Fred G. Rodriguez, C. Michael Schill, and Gail Dalrymple, Asst. Dist. Attys., San Antonio, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for involuntary manslaughter under V.T.C.A. Penal Code, Section 19.05(a)(2). Punishment, enhanced by a prior conviction, was assessed at 16 years imprisonment.

Appellant contends that the trial court erred in its jury charge, the evidence was insufficient on the issues of intoxication and causation, the State failed to prove any intoxication was voluntary, and the 16-year sentence constitutes cruel and unusual punishment. After examining each of appellant’s contentions, we conclude that the judgment should be affirmed.

Appellant urges error because the trial court in its jury charge required no finding that appellant acted with a culpable mental state. This Court previously has concluded that proof of a culpable mental state is unnecessary where intoxication is an essential element of the offense. Ex parte Ross, 522 S.W.2d 214 (Tex.Crim.App.1975). Since intoxication is an essential element of involuntary manslaughter under V.T.C.A. Penal Code, Section 19.05(a)(2), the trial court correctly required no finding of a culpable mental state.

Relying on Article 21.15, V.A.C.C.P., appellant complains that the State should have alleged and proved the act or acts relied upon to constitute recklessness or criminal negligence. By its own terms, Article 21.15 applies only where “recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense.” As we indicated above, a culpable mental state is not an essential element of involuntary manslaughter under Section 19.05(a)(2). Ex parte Ross, supra. Therefore, Article 21.15 is inapplicable to this type of involuntary manslaughter.

Appellant claims that a fatal variance exists between the indictment and the court’s charge to the jury. The indictment alleges, in part, that appellant “did then and there WHILE INTOXICATED, KNOWINGLY AND INTENTIONALLY OPERATE A MOTOR VEHICLE.” The court’s charge deviated from the indictment by not requiring a finding that appellant acted “knowingly and intentionally.” Defense counsel objected to this variance, and the issue is adequately preserved for review.

As a general rule, the trial court’s charge to the jury should correspond to the allegations in the indictment. Booker v. State, 523 S.W.2d 413 (Tex.Cr.App.1975); Gooden v. State, 145 S.W.2d 177 (Tex.Cr.App.1940). In this case, however, a culpable mental state is not an element of the offense, so the State need not have alleged “knowingly and intentionally” in the indictment. Ex parte Ross, supra. This unnecessary allegation was surplusage, which the trial court properly excluded from its charge to the jury. Beck v. State, 172 Tex.Cr.R. 534, 360 S.W.2d 410 (1962); Corbell v. State, 508 S.W.2d 86 (Tex.Cr.App.1974). The court instructed the jury as to all essential elements of the offense. We hold that the trial court did not err.

Appellant challenges the sufficiency of the evidence on the issue of intoxication. An examination of the record reveals more than enough evidence for the jury to conclude that appellant was intoxicated. Ru-dolpho Ponce, an eyewitness to the fatal accident, testified that appellant’s car crossed the center median and then veered back to the right side of the highway where it left the road and struck a pedestrian. Ponce further testified that he spoke with appellant after the accident, and because of the way appellant walked and talked he believed appellant to be intoxicated.

The first police officer to arrive at the scene was Joseph Phillips. Officer Phillips testified that appellant smelled strongly of intoxicants, had bloodshot eyes, was swaying, and in his opinion was intoxicated. Phillips further testified that he found an empty liquor bottle in the path of the car and a strong smell of intoxicants within the car.

The second police officer to arrive at the scene was John Benefer. Officer Benefer also testified that in his opinion appellant was intoxicated. Based on the testimony of these three witnesses, we hold that the evidence was sufficient to support the jury’s verdict on the issue of intoxication. Fontenot v. State, 486 S.W.2d 941 (Tex.Cr.App.1972); Gibbs v. State, 385 S.W.2d 258 (Tex.Cr.App.1964).

Appellant also challenges the sufficiency of the evidence on the issue of causation. In cases of this nature, the existence or nonexistence of a causal connection is normally a question for the jury. Dorsche v. State, 514 S.W.2d 755 (Tex.Cr.App.1974); Sanchez v. State, 398 S.W.2d 117 (Tex.Crim.App.1965). The jury in this case was instructed that a guilty verdict required a finding of a causal connection between appellant’s intoxication and the death of the deceased. The evidence of appellant’s erratic driving immediately before the accident was sufficient to support a jury finding on the issue of causation. Sanchez v. State, supra. Appellant’s contention is overruled.

Appellant contends that the State failed to allege and prove that his intoxication was voluntary. Intoxication is an essential element of involuntary manslaughter under Section 19.05(a)(2). This provision does not require the State to allege and prove that the intoxication is voluntary. We note, however, that this Court has held that a defendant may raise the affirmative defense of involuntary intoxication. Torres v. State, 585 S.W.2d 746 (1979). If a defendant raises an affirmative defense, the defendant must prove it by a preponderance of the evidence. V.T.C.A. Penal Code, Section 2.04. The State is not required to negate the existence of an affirmative defense in the indictment. V.T.C.A. Penal Code, Section 2.04(b). The evidence in this case did not raise the issue of involuntary intoxication.

Appellant asserts that the State failed to allege and prove what substance caused his intoxication. As long as the evidence is sufficient to support a jury finding of intoxication, the State need not allege or prove what substance caused this intoxication. Appellant’s contention is without merit.

Relying on Rummel v. Estelle, 568 F.2d 1193 (5th Cir. 1978), appellant contends that his 16-year sentence constitutes cruel and unusual punishment. After appellant submitted his briefs, the Fifth Circuit sitting en banc reconsidered the panel decision in Rummel, and it overruled the panel’s decision that petitioner’s life sentence constituted cruel and unusual punishment. Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978). We conclude that appellant’s 16-year sentence for involuntary manslaughter, where this conviction was enhanced by a prior felony conviction, does not constitute cruel and unusual punishment.

The judgment is affirmed.

      . V.T.C.A. Penal Code, Section 19.05(a)(2):
      (a) A person commits an offense if he:
      (2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Charles Eugene O’BRIENT, Appellant, v. The STATE of Texas, Appellee.
    No. 61870.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 31, 1979.
    Rehearing Denied Nov. 21, 1979.
    Robert A. Canónico, Ben Selman, Waco, for appellant.
    Felipe Reyna, Dist. Atty. and Karen C.' Matkin, Asst. Dist. Atty., Waco, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. After the jury answered the punishment issues under Article 37.071, V.A.C.C.P., in the affirmative, punishment was fixed at death.

In his first ground of error appellant contends the trial court reversibly erred when it denied his motion for a change of venue without conducting a hearing. The motion was properly filed and supported by affidavits as required by Article 31.03, V.A. C.C.P. When the motion was presented at the hearing on pre-trial motions on April 20, 1978, the trial court ruled that it would carry the motion along pending jury selection. On May 30, after the jury had been selected, the trial court overruled the motion on the basis of the jury voir dire and without conducting a hearing on the motion, and appellant excepted to the court’s ruling on the basis of the denial of a hearing. These circumstances are substantially the same as those presented in Henley v. State, Tex.Cr.App., 576 S.W.2d 66, and require reversal. In that case this Court wrote:

“The issue on appeal is not whether the trial court erred by not granting appellant a change of venue, nor whether the trial court erred in delaying its ruling on appellant’s motion for change of venue until voir dire had been conducted. The precise question to be decided is this:
“If a defendant timely files a properly verified motion for change of venue under Article 31.03, V.A.C.C.P., is it an abuse of discretion and a denial of due process for the trial court to overrule the motion without affording defendant a pretrial hearing to present evidence in support of the motion?”

In this case appellant timely filed a proper motion under Art. 31.03, supra, and, after jury selection was completed, the State filed controverting affidavits. The trial court was therefore required to conduct an evidentiary hearing on the issue. Henley v. State, supra, and authorities there discussed. Here, as there, “the trial court predicated its denial of appellant’s motion solely upon the successful qualification of a jury panel. In so doing the court confused the grounds for change of venue with the grounds for juror challenge for cause.”

In ruling on the motion the trial judge recited:

“. . .in accordance and in compliance with the Court’s Ruling, which was had ... on the 20th day of May [April] of 1978, at which time the Court held in abeyance the Ruling on the Motion for a Change of Venue and announced into the record and to the parties that the Court was holding the same in abeyance until such time as we determined whether or not a jury could be selected. A jury, having been selected as of 6:45 p. m. on Friday, May 26,1978, and after having examined 105 veniremen, the record of said examination reflects that only four of the veniremen out of the 105 examined were disqualified because of any opinion based upon any publicity. And at this time the Court is denying the Defendant’s Motion for a Change of Venue.”

The written ruling on the motion reflects the same reason for the trial court’s action. This is precisely what was condemned in Henley v. State, supra.

The State argues that appellant abandoned his motion because it was not urged until after the jury had been selected. Such conduct by appellant was merely in accord with the trial court’s instruction. Appellant initially presented his motion over a month before trial, and the court ruled that the motion would be carried over until after jury selection was attempted. The court’s ruling set out above and appellant’s exception to that ruling for failure to conduct a hearing make it clear that he did not abandon the motion.

Devereaux v. State, Tex.Cr.App., 473 S.W.2d 525, relied on by the State, is not in point. In that case several pre-trial hearings were held, yet the defendant at no time prior to trial urged her motion for change of venue. When the defendant did for the first time urge the motion after jury voir dire had been completed, the trial court denied the motion on the grounds that it was untimely urged. Here appellant presented the motion before trial; a final ruling was postponed until after jury selection on the court’s own direction, and the motion was denied on the merits, not for untimeliness.

We also observe that the failure of appellant to make a bill of exception to show what evidence he would have presented at a hearing does not affect the disposition of this ground of error. In Henley v. State, supra, it was held:

“We note that during the motion for new trial hearing the trial court allowed appellant to put on evidence in support of his bill of exception to the court’s denial of his motion for change of venue. While the evidence adduced during the hearing is included in the record before us on appeal we decline to examine it in order to determine whether the trial judge abused his discretion in not granting appellant a change of venue. That is not the issue before us. The abuse of discretion condemned here is the trial court’s failure to grant appellant a pretrial hearing on his change of venue motion. If the hearing on a change of venue is postponed until after trial, a great deal of time, effort and money will be wasted if the evidence adduced during the posttrial hearing compels a new trial in another county. Further, it is unlikely that following a jury verdict of guilty in a highly publicized mass, sex-torture killing case the trial court would readily érase the jury’s pronouncement and grant appellant another trial. Lastly, such a procedure would allow the trial courts to escape their duty of making an independent assessment of the merits of the change of venue motion and to delegate that responsibility to an appellate court. The dictates of due process and Chapter 31, V.A.C.C.P., necessitate that a defendant’s right to an impartial jury and fair trial be protected in the first instance by the trial court. A defendant must not needlessly be denied due process by a trial court and suffer the emotional rigors and expense of a criminal trial, and possibly incarceration pending appeal only to be afforded due process months or even years later by an appellate court. Such a state of affairs is in itself a denial of due process.”

We therefore are required to hold under the authority of Henley v. State, supra, and the cases there examined at length, that the facts of this case demonstrate the trial court’s refusal to conduct a hearing on the motion for a change of venue denied appellant his rights under the laws of this State and constituted a deprivation of due process.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge.

text:
    Oda Vaughn CLEVELAND, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 62153.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 31, 1979.

      J. Thomas Sullivan, court appointed counsel on appeal only, Dallas, for appellant.
    Henry Wade, Dist. Atty., Karen Chilton Beverly, G. J. Muller and Stewart Robinson, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS, and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for unlawful possession of a controlled substance, to-wit: heroin, wherein the punishment was assessed by the court at ten (10) years’ imprisonment following his guilty plea.

Appellant contends the trial court erred in overruling his motion to suppress evidence of a search and seizure and in accepting his plea of guilty where the evidence disclosed an impropriety in the securing of the search warrant.

The record reflects that after the motion to suppress was overruled the appellant on November 13, 1978 entered a guilty plea before the court. It was established that there was no plea bargain and no recommendation was made to the court. Sentence was imposed and notice of appeal was given.

It has long been held that by entering a plea of guilty the defendant waives the error, if any, in admitting evidence obtained as a result of an alleged search and seizure. Helms v. State, 484 S.W.2d 925, 927 (Tex.Cr.App.1972), and cases cited. This rule has been applied to cases where pretrial motions to suppress have been overruled and the defendant later enters a plea of guilty.

Appellant relies upon Article 44.02, V.A. C.C.P., as amended 1977, in effect at the time of appellant’s plea of guilty, which reads:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.” [Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. Aug. 29, 1977.]

In Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), it was held that a defendant who had personally entered into a plea bargain prior to his guilty plea before the court and whose punishment was assessed in accordance with said plea bargain could still appeal without the trial court’s permission but only as to the matters raised by motions filed and heard prior to trial in light of the provisions of said Article 44.02.

Appellant therefore contends that the court’s ruling on the motion to suppress in the instant case should be considered on appeal as Article 44.02, as amended 1977, indicates the legislative intent to “reverse” the line of cases represented by Helms v. State, supra. We do not agree. By its very language, Article 44.02, supra, does not limit appeals in cases, such as the instant one, where the defendant pleads guilty before the court without a plea bargain and recommendation as to punishment. We conclude that the Helms line of cases still applies to appeals such as the instant one. The trial court’s ruling on the motion to suppress is not before this court for review.

Further, we note the contention now raised on appeal was not raised at the hearing on the motion to suppress or at the time of the guilty plea and would not normally present anything for review. It is appellant’s contention that the copies of the search warrant attached to his motion to suppress and the one introduced by the State at the hearing on the motion to suppress, while identical in content, reflect that the copies were not made from the same original, as the signature of the magistrate on one protruded into and over the printed matter in one copy and did not in another, etc. He thus argues that there must have been two search warrants issued based upon a single affidavit. He cites no authority rendering the search invalid if in fact two search warrants were issued. The State argues that it is clear that Xerox copies were made of the search warrant prior to the search and that the search warrant and a copy thereof were independently signed by the magistrate, accounting for the slight difference in the magistrate’s signature. Be that as it may, we know of no requirement that only the original search warrant be issued and that no copy of the same be made and signed by the magistrate or used by the officers or later introduced into evidence.

Still further, we cannot conclude the court erred in accepting the guilty plea upon a ground not then urged. Appellant’s contention is overruled.

Next, appellant contends the court erred in overruling the motion to suppress and accepting the plea of guilty since the supporting affidavit to the search warrant was irregular on its face. For the same reasons set out above, the contention is not before us for review in light of appellant’s guilty plea. Further, the irregularity now urged was not presented to the trial court at the hearing on the motion to suppress or otherwise, and the plea of guilty was voluntarily entered. Still further, the irregularity now complained of would not invalidate the search. Appellant complains that in the search warrant affidavit the officer-affiant swore the premises were in control of a man named Otis, “known to the affiant as ‘Big O,’ ” and elsewhere in the affidavit swore that the informant knew the man as “Big 0.” Appellant claims there is no showing how the affiant acquired the information that the man was also known as Otis. Reading the affidavit as a whole, there is no merit to appellant’s contention.

Lastly, appellant contends the trial court erred in assessing punishment in considering evidence of an offense for which appellant was not charged. Appellant bases his contention on the fact that the trial court interrogated the appellant at the conclusion of his testimony. On direct examination the appellant, who had been previously convicted of robbery, admitted the heroin found was his, that he had been involved in distribution of drugs and had become addicted to heroin, that he was overcoming his addiction. The court then interrogated about the street value of the two grams of heroin found in his possession, which the appellant claimed was part of his “withdrawal thing,” asked how many “hits” were in a gram of heroin, how many “hits” a day appellant was using, etc.

It is observed that appellant first testified about his involvement in the distribution of drugs and his addiction. The court’s questions were relative to the evidence the appellant first brought out. We see no error in the court’s interrogation. Further, there is nothing to show that the court took into consideration the evidence the court elicited on its own examination and thereby increased the punishment assessed. If for any reason the evidence elicited was inadmissible, it is presumed that the trial court will consider only proper and admissible evidence. Jimmerson v. State, 561 S.W.2d 5 (Tex.Cr.App.1978).

The judgment is affirmed.


author: DOUGLAS, Judge. ONION, Presiding Judge,

text:
    Thomas Earl STANFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 59945.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 31, 1979.

      Peter A. Lesser, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds and Hugh Lucas, Jr., Asst. Dist. At-tys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

This is an appeal from an order revoking appellant’s probation.

The opinion on original submission is withdrawn.

On November 23, 1976, appellant pled guilty to the offense of burglary of a building. Punishment was assessed at three years; the imposition of sentence was suspended and probation was granted.

On January 5, 1978, the State filed a motion to revoke probation alleging appellant had failed to report to his probation officer as directed. At a hearing on January 11, 1978, appellant pled true to this ground. The court, however, delayed its decision to revoke until a hearing on March 17, 1978, at which time probation was revoked.

The State, on rehearing, seeks to show that the court did not abuse its discretion in delaying its decision to revoke until the March hearing.

The opinion on original submission relies on Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979), and Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1978). These cases are distinguishable.

In Wester, Wallace and Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979), the court conducted a hearing on the motion to revoke and found an allegation true. The conditions of probation were modified and later revoked because of another violation; the revocation being grounded upon the finding of “true” at the initial hearing. This was held to be an abuse of discretion.

The instant case is similar to Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978). There, the defendant pled true to violating his probationary terms at a May 11, 1976 hearing. The court accepted the plea and found that the allegation was in fact true. The hearing was then recessed pending the court’s decision on the motion. On November 16, 1976, another motion to revoke was filed alleging a violation on November 11, 1976. At a hearing on January 11, 1977, the trial court called the defendant’s attention to his previous plea of true and revoked probation based on its prior findings.

This Court held in Traylor that there was no abuse of discretion because it was clear that the trial court took its decision to revoke under advisement and nothing in the record indicated that the court used the subsequent violation as a basis for the revocation. See Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974); Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973). Likewise, in Furrh v. State, supra, after finding an abuse of discretion because the court modified the terms of probation and later revoked without a further violation being shown, the Court stated:

“While the court could have continued the hearing and delayed exercise of its discretion to continue, modify or revoke the probation, as was done in Traylor v. State, Tex.Cr.App., 561 S.W.2d 492, and apparently in Sappington v. State, Tex.Cr.App., 508 S.W.2d 840, that option is not what occurred in this case.”

The court in this case chose not to revoke probation even though he found that it had been violated. There was no new motion to revoke. The transcript from the March 17, 1978 hearing recites that the following exchange occurred:

“THE COURT: On November 23rd, 1976; you were granted three years probation in that cause, and then on January 11th, 1978, upon a hearing on motion to revoke your probation, hearing was held on that date, arraignment was waived and a plea of — you made a plea of true to that motion in writing and orally to me.
The evidence was presented, both sides closed all of the evidence, concluded the entire motion to revoke probation hearing at that time, and I found as a fact, on that date, that you had violated Condition D of the probation terms. Do you recall all of that?
“THE DEFENDANT: Yes.
“THE COURT: I passed the case at that point in time, for a later time, and I’m now taking up the remainder of that hearing, the conclusion being: The order heretofore entered this cause, suspending imposition of sentence and granting probation in this case is hereby revoked.”

The docket entry for January 11, 1978 also stated: “Hearing passed generally — capias withdrawn.”

The trial judge, from what he said, revoked probation upon the evidence adduced at the January hearing, not upon the subsequent violation. There were no modifications of the probationary terms. Nothing in our previous decisions construes the withdrawal of a capias as a continuation of probation, and we decline to so hold here. The court merely continued the hearing and took its decision to revoke under advisement; an option specifically approved of in Furrh.

The hearing was properly continued and nothing in the record suggests that the trial court acted to revoke on the basis of new offenses.

Finding no abuse of discretion, the motion for rehearing is granted and the judgment is affirmed.

ONION, Presiding Judge,

dissenting.

This cause was correctly decided on original submission. There is absolutely no need to stretch the facts as the majority now does to affirm the order revoking probation.

On November 23, 1976 the appellant entered a guilty plea before the court to the offense of burglary of a building, V.T.C.A., Penal Code, § 80.02. Punishment was assessed at three (8) years’ imprisonment. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain probationary conditions, including:

“(d) Report to the probation officer as directed; to wit: Monthly.”

On January 5, 1978, the State filed a motion to revoke alleging that the appellant had failed to report to his probation officer as directed during the months of June, October and November, 1977. On January 12, 1978 the court conducted a hearing on said motion. Appellant entered a plea of “true.” The appellant took the witness stand and admitted he did not report during June, October and November, 1977 to the probation officer. He related on direct examination he couldn’t get out of bed for six weeks because he had a rupture and “the other time” he was just scared to report because he did not have a job as he was supposed to have. He testified he needed surgery for his condition, and if continued on probation, would have the surgery at Parkland Hospital as he could not hire a private doctor, that he would get a job and report to the probation officer faithfully.

At the conclusion of the hearing, the record reflects:

“THE COURT: Well, the hearing on the Motion to Revoke Probation, arraignment being waived, and the defendant entered a plea of true to the motion, the evidence being presented, the court finds the defendant violated condition ‘D’ of the terms and conditions of his probation.
“This hearing is passed generally.”

A docket sheet entry dated January 11, 1978 (a date at variance with the other evidence in record as to the date of the revocation hearing) reflects: “Hearing passed generally — capias withdrawn” following by the trial court’s signature.

On March 1, 1978, probation officer Taylor filed a report with the court which stated that appellant violated a condition of probation in that

“On or about February 25, 1978, Thomas Earl Stanfield was arrested by Dallas Police Department and charged with attempted burglary of a building.”

A capias for appellant’s arrest was shown to have been issued on the same day bearing the trial judge’s signature. The following date an entry on the docket sheet recited “3-2-78 Reset to Mar 17 ’78.” No new motion to revoke probation is shown to have been filed.

On March 17, 1978, the appellant appeared in open court apparently as a result of his arrest on the capias issued March 1, 1978. The record reflects no hearing, but the following:

“THE COURT (addressing the appellant): On November 23, 1976, you were granted three years probation in that cause, and then on January 11th, 1978, upon a h jaring on motion to revoke your probation, hearing was held on that date, arraignment was waived and a plea of— you made a plea of true to that motion in writing and orally to me.
“The evidence was presented, both sides closed all of the evidence, concluded the entire motion to revoke probation hearing at that time, and I found as a fact on that date, that you had violated condition D of the probation terms.
“Do you recall all of that?
“THE DEFENDANT: Yes.
“THE COURT: I passed the case at that point in time, for a later time, and Fm now taking up the remainder of that hearing the conclusion being: The order heretofore entered this cause, suspending imposition of sentence and granting probation in this case is hereby revoked.
“Is there any reason under the law why you should not be sentenced at this time? . . (Emphasis supplied.)

The sentence was thereafter imposed and notice of appeal given.

Appellant contends that the trial court erred in revoking his probation “in that there was an intervening event between the two hearings which was not proved up before the court and which was the actual basis of the revocation.”

It is appellant’s argument that he was in effect continued on probation on January 12, 1978 and that without a hearing on the matter his probation was terminated upon report to the court of an arrest for attempted burglary.

Article 42.12, § 8(a), V.A.C.C.P. provides in part:

“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation If probation is revoked, the court may proceed to dispose of the case as if there had been no probation . ..” (Emphasis supplied.)

The question here presented is identical to ones confronting this court in Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976), and Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979). In Wallace and Wester the question was whether a trial court following a revocation hearing may continue a defendant on probation (although there is an adequate basis for revocation) and then subsequently upon report of another violation of probation revoke probation without motion by the State and without a hearing and base the revocation upon the ground shown at the earlier hearing. In Wester and Wallace it was concluded that a court could not take such action. In Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979) (Opinion on Appellant’s Motion for Rehearing), the same result was reached.

What did the trial court do here? At the hearing on January 12, 1978 the only alleged violation of probation was the failure to report to the probation officer in June, October and November, 1977. The appellant pled “true” and later admitted in his testimony he had failed to report for the reasons earlier set out. From the record, as noted above, it is clear that both sides closed, and the hearing was concluded with a finding that the appellant had violated his probation as alleged. No oral or written order to revoke probation was entered at the time, and sentence was certainly not then pronounced. No oral or written order modifying the probation was made. The trial judge did state he was passing the hearing generally although the hearing on the alleged violation had been concluded and the court had made its finding. There was no necessity for any further hearing. In addition, it is clear that the appellant, who had been found to have violated a probationary condition, was released subject to the probationary conditions previously imposed. This is evident by the fact the capias issued prior to the January 12th hearing was withdrawn and by the report of the probation officer on March 1, 1978 that appellant had on February 25, 1975 allegedly committed the offense of attempted burglary. That the trial judge had knowledge of the alleged new violation is reflected by the capias it issued for his arrest over the signature of the trial judge. It is clear that the appellant was in effect continued on probation and that his probation was arbitrarily withdrawn without a hearing when the court learned of an alleged new violation depriving him of due process, the due course of the law of the land and fundamental fairness. See Wester, Wallace and Furrh.

The majority opinion on rehearing three times states that the court delayed its decision and took the matter under advisement. There is no support for such statements in this record. Unlike Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), where the trial judge expressly stated he was taking the matter under advisement, there is no statement or order by the trial court in the instant case indicating that it intended to take the matter under advisement. Certainly the difficulty of the matter would not indicate the necessity of advisement. A trial judge may continue a revocation hearing in order to obtain additional witnesses or evidence, to have the probationer examined, to research the law prior to making a ruling. He may even take a revocation matter under advisement. However, the guise of advisement may not be used to accomplish what the law forbids. To the extent that Traylor v. State, supra, is in conflict with such statement, I would overrule it. Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974), and Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973), can be distinguished as they were in Wester.

For the reasons stated, I dissent.

ROBERTS, PHILLIPS and CLINTON, JJ., join in this opinion.

      . It is difficult to understand the dissenting opinion that the trial court violated appellant’s due process. The trial court gave appellant a break by not revoking probation at the time of the first hearing. Appellant was given more time before serving his term. Apparently the dissent would require a judge to revoke probation at the time of the first hearing, and there could be no delay, otherwise, due process would be violated. It goes without saying that most probationers would rather not go to the Department of Corrections when the trial judge first finds that there was a violation of probation.
      To follow the dissent would take away the discretion of the trial courts and cause sentences to be pronounced after the first hearing. The dissenting opinion would overrule that Traylor case to reverse this case. If it is not in point, why should it be overruled?


text:
    David Brainard MONTGOMERY, Appellant, v. The STATE of Texas, Appellee.
    No. 57373.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 7, 1979.

      J. Michael Jaynes, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, L. S. Eubanks, Jr., and C. Wayne Huff, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at life.

In his first ground of error appellant urges reversible error was committed by the trial court’s denial of his proper and timely request for a jury charge on the defense of mistake of fact. V.T.C.A., Penal Code Sec. 8.02.

The trial of this case lasted several days and involved over a dozen witnesses. The events on which the prosecution was brought occurred at appellant’s home on February 18, 1976. At about 8:00 p. m. on that day Garland undercover agents W. E. Anderson and Danny Holder arrived at appellant’s home for the purpose of buying a large quantity of marihuana. Anderson had $18,000 in money supplied by federal drug authorities, and was wired with a broadcasting device that enabled other police officers stationed nearby to hear the conversations occurring in the house. During the meeting appellant twice went out the back door of the house to talk to someone in a Toyota who had driven up in the alley behind the house. He told the undercover officers that there were police officers in the area and they would have to wait a time before making the sale. After awhile appellant pulled a pistol and demanded the $18,000, which Anderson surrendered. Appellant then prepared to spray the undercover agents with Mace when the outside officers listening over the electronic devices came to the undercover agents’ rescue. Appellant fled, but was captured nearby and the money was recovered.

Appellant testified to a lengthy relationship with Louis Caney. He met Caney in June of 1975. Appellant was on parole for a federal offense at the time. When Caney discovered this, he told appellant that he was a narcotics officer with the Garland police force, and that he wanted appellant to work as an informant for him. Appellant refused, and when Caney insisted and threatened to have him sent back to prison by setting him up for possession of drugs, appellant moved first to his mother-in-law’s house, and then to another address in an effort to elude Caney and his demands.

Several months later Caney again located appellant, and told him that he no longer wanted him to work as an informant, but that he wanted him to help convince Anderson that he was a drug dealer so Caney could gain Anderson’s confidence and make a case against Anderson for possession of drugs. Caney told appellant that Anderson was a dealer for one Furrh, who was reputed to be a big time cocaine dealer, and Caney wanted to make a case on Anderson so he could use Anderson to get Furrh. Appellant was again threatened by Caney with being sent back to prison if he did not cooperate. At this point appellant agreed and entered into a scheme to set up Anderson, represented by Caney to be a drug dealer wanting to buy, but in fact an undercover agent. Caney phoned appellant daily until arrangements were made for a deal on February 18 at appellant’s house. At Ca-ney’s directions appellant had arranged for a marihuana seller to supply a large quantity of the substance for Anderson to purchase. According to appellant the seller would deal only with appellant and would require the $18,000 purchase money up front. Caney told appellant that he and another officer, whom he referred to only as Art, would be outside the house during the transaction in case of an emergency and to make the arrest after the sale, and that other officers would be stationed nearby. He also told appellant that if he wanted any protection inside the house he had better get a gun, and that under no circumstances was he to let the purchase money get away.

According to appellant, on the night of the arranged sale, Anderson and his partner arrived at around 8:00 p. m. When time came for the actual sale, Anderson refused to pay the money up front as had been arranged, so that appellant could take the money out to the seller and bring the marihuana in. He told Anderson that he would have to trust him with the money, but Anderson replied, “No way.” Appellant intended to complete the deal and took the money with the intent to go out the front door to buy the marihuana and bring it back in to Anderson. He pulled the gun to take the money and called for Art to come in and control Anderson and his partner while appellant completed the deal. He told Anderson it was not a “rip off” and that they were going to do the deal his way. When no one came in after appellant called for Art, he took a spray can of mace-like eye irritant to temporarily disable Anderson and Holder, but at this time the outside officers stormed the house from the front. Appellant fled through the back looking for Caney. Appellant insisted that he took the money because Caney had told him that under no circumstances was he to let the money get away, and had promised appellant a place in prison if they did not get a “bust” out of the deal that night.

Anderson and Holder testified that Caney introduced them to appellant, but that Ca-ney was not involved in setting up the deal. Anderson testified that Caney was not a police officer. Caney had been a police cadet, but he was not one at the time of these events. Caney died in an automobile accident shortly before the trial.

The issue on appeal is not whether appellant’s story is true or even believable. That issue is exclusively for the jury as trier of fact. The issue before this Court is whether the evidence raised the defense of mistake of fact such as to entitle appellant to a jury instruction on the issue.

“. . . the jury may accept or reject all or a part of a witness’s testimony, and even though a part of that testimony is in conflict with or is contradicted by other evidence the jury may give credence to that part of the testimony. See Barrera v. State, 491 S.W.2d 879 (Tex.Cr.App.1973); Pizano v. State, 489 S.W.2d 284 (Tex.Cr.App.1973); Angle v. State, 486 S.W.2d 308 (Tex.Cr.App.1972); Dawson v. State, 472 S.W.2d 775 (Tex.Cr.App.1971).
“It is also well recognized that a defendant is entitled to an instruction on every issue raised by the evidence, whether produced by the State or the defendant, and whether it be strong, weak, un-impeached, or contradicted. See Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972); Yeager v. State, 96 Tex.Cr.R. 124, 256 S.W. 914 (1923); Hubbard v. State, 153 Tex.Cr.R. 143, 217 S.W.2d 1019 (1949); Perez v. State, 146 Tex.Cr.R. 241, 172 S.W.2d 314 (1943); Pounds v. State, 142 Tex.Cr.R. 52, 150 S.W.2d 798 (1941); 31 Tex.Jur.2d, Instructions, Sec. 110, pp. 660-61.” Thompson v. State, Tex.Cr.App., 521 S.W.2d 621, 624.

Section 8.02(a), supra, provides:

“It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.”

Appellant contends his testimony shows that he through mistake formed a reasonable belief about a matter of fact that negated the culpability required for aggravated robbery, in that it shows he mistakenly believed he was working for and following the instructions of Caney, whom he believed to be a law enforcement officer, and that on those instructions he was attempting to compel Anderson to follow through with the marihuana sale and was following Ca-ney’s explicit instructions that under no circumstances was he to let the money get away.

The State in reply asserts appellant was motivated by fear of Caney and of Caney’s threats to plant drugs on him, and was not motivated to participate in the transaction by a desire to assist law enforcement. This is unresponsive to the issue, which turns on appellant’s mistaken beliefs, not his motives.

The State also argues that the appropriate defense was duress (V.T.C.A., Penal Code Sec. 8.05) or entrapment (V.T.C.A., Penal Code Sec. 8.06), on which the jury was charged, rather than mistake of fact. The duress defense is based on compulsion by threat, and focuses on the conduct of the person making the threats. The entrapment defense is based on inducement by a law enforcement agent, and focuses again on the conduct of the other person. The mistake of fact defense, in contrast, is based on the mistaken belief of the accused, and it looks to the conduct of others only to the extent that any such conduct contributes to the mistaken belief.

The testimony in this case did raise the issue of whether appellant through mistake formed a reasonable belief that he was acting on instructions from a law enforcement officer that would negate the culpability required for aggravated robbery, and the jury should have been charged on the issue. If the evidence raises more than one defensive issue, the accused is entitled to submission of each, and the submission of one does not dispense with the need to submit others. The court is required to charge on every defensive issue raised by the evidence. E. g., McKenzie v. State, Tex.Cr.App., 521 S.W.2d 637. Submission of a charge on duress and entrapment did not eliminate appellant's right to submission of a charge on mistake of fact.

The State also argues that submission of the defense of mistake of fact was not required because the charge included the statutory definition of intent from V.T. C.A., Penal Code Sec. 6.03(a), which requires a finding that it was the defendant’s conscious objective or desire to engage in the conduct or cause the result. This position overlooks the rule that the accused is entitled to an affirmative submission of every defensive issue raised by the evidence. See, e. g., Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166.

We hold it was reversible error to deny appellant’s timely request for a charge on the defense of mistake of fact.

The judgment is reversed and the cause remanded.


author: CLINTON, Judge.

text:
    Jesus Ovalles MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 61547.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 7, 1979.
    Martin Underwood, court appointed, Comstock, Roy E. Greenwood, Austin, for appellant.
    Thomas F. Lee, Dist. Atty., Del Rio, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of burglary of a habitation wherein the jury assessed appellant’s punishment, enhanced by one prior felony conviction, at confinement in the Texas Department of Corrections for a term of twenty years.

At the outset appellant contends that the trial court erred in denying him an opportunity to voir dire the jury panel on the full range of punishment in that the trial court overruled his motion to inform the jury panel of the range of punishment applicable to an offense which is enhanced by one prior felony conviction. We agree and, accordingly, reverse the judgment below.

The record reflects that appellant filed a pretrial motion denominated “Motion Giving Notice of Defendant’s Intent to Inform Jury Panel on Voir Dire of Range of Punishment,” which provided in pertinent part:

“Both the State and the Defendant have a right to question prospective jurors as to their ability to consider the full range of punishment. The range of punishment provided in the event the State proves the allegations of this indictment is from 15 years to 99 years, or life, [citation omitted] Defendant will be unable to intelligently exercise his challenges for cause or peremptory challenges if he cannot examine the panel on the full range of punishment. . [Defendant respectfully prays that this Court order that Defendant’s counsel be allowed to inform the jury panel of the full range of punishment in the event that the allegations of the indictment are proven.”

The motion was denied by the trial court, a ruling complained of by appellant in his motion for new trial.

In its remarks to the panel, the trial court did not touch on punishment. However, prospective jurors were informed by the prosecution during voir dire examination that the offense on trial is a first degree felony punishable by imprisonment from five to ninety-nine years or life and qualified them on that basis. In his turn appellant pretermitted any mention of punishment, thereby avoiding being repetitive of the explanation made by the State and also deferring to ruling of the trial court denying his motion for leave to inform the prospective jurors of enhanced range of punishment. At the punishment phase, of course, the jury was charged on enhancement.

The question thus presented is whether, in the circumstances of this case, appellant was erroneously denied a fair opportunity to interrogate prospective jurors on matters of punishment in order intelligently to exercise his right to challenge for cause or peremptorily?

Bias or prejudice regarding the law applicable to punishment is statutorily specified as a ground for challenge for cause by the State and the accused, Article 35.16(b)3 and (c)2, V.A.C.C.P., and is a proper area of inquiry for peremptory challenges as well as for cause, Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App.1979); Smith v. State, 513 S.W.2d 823, 826 (Tex.Cr.App.1974); Reeves v. State, 491 S.W.2d 157, 161 (Tex.Cr.App.1973). As to aspects of punishment relating to the primary offense the law in this respect is free from any doubt, and the test for ascertaining harm in such cases is “whether the trial judge’s limitation of the voir dire examination amounted to an abuse of discretion, thus depriving appellant of a valuable right,” Emanus v. State, 526 S.W.2d 806, 808 (Tex.Cr.App.1975).

That the punishment ultimately assessed by a jury is one of two or more alternatives it is properly authorized to select has dictated that counsel for the parties be permitted to make appropriate inquiries concerning the alternatives, notwithstanding their conditional or contingent application. Thus, views concerning the former suspended sentence law were examined in Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267 (Tex.Cr.App.1925); attitude towards probation was explored in Houston v. State, 496 S.W.2d 94, 95 (Tex.Cr.App.1973); feelings about assessing a minimum punishment should have been allowed in Mathis v. State, supra. It is the availability of alternatives, yet an uncertainty at the time of voir dire examination of their final determination by the jury, that render the examination as to possible punishments necessary — the occasion, under our system of jury trial, will never again be presented.

So it was, we discern, that the Court came to hold recently in Bevill v. State, 573 S.W.2d 781, 783 (Tex.Cr.App.1978) that there was a “valid reason” to permit the State to explain to a jury panel the range of punishment applicable where one prior conviction was alleged in the indictment pursuant to V.T.C.A. Penal Code, § 12.42. The Court pointed out that the jury must answer the factual inquiries of whether enhancement allegations are true and when it found but one was true:

“. . .In this event, it would be the jury’s duty to assess punishment. Where the jury may be called upon to assess punishment, both the State and the defendant have a right to qualify the jury on the full range of punishment. Thus, it is proper to inform the jury of the range of punishment applicable to an offense which is enhanced by one prior felony offense.”

Bevill specifically notes the provisions of Article 36.01, § 1, V.A.C.C.P., that preclude reading enhancement allegations to the jury until the punishment hearing begins, but clearly the Court was not inhibited by them, or by prior expressions of opinion concerning them, in coming to the conclusion it did. Statements of the rule in, e. g., Castillo v. State, 494 S.W.2d 844, 845 (Tex.Cr.App.1973) and Heredia v. State, 508 S.W.2d 629 (Tex.Cr.App.1974), that enhancement allegations must not be read to the jury at the outset of trial are not contradicted by the holding of Bevill that both the State and the accused have the right “to inform” the jury of the range of punishment applicable to an enhanced offense under Section 12.42(a), (b) or (c), supra, and to qualify it on the full range of punishment. Certainly, one can inform generally of applicable punishment without reading the precise allegations for enhancement, and thereby avoid what some have regarded as jeopardizing the presumption of innocence. Thus harmonizing the Bevill conclusion and the Castillo rule, we adhere to both and hold that the admonition of Article 36.01, § 1, supra — that unless otherwise excepted allegations of prior convictions for purpose of enhancement under Section 12.-42(a), (b) or (c), supra, shall not be read to the jury until hearing on punishment is held — is not offended by either the State or the accused informing and qualifying prospective jurors as to the full range of punishment applicable to the enhanced offense, in order intelligently to exercise peremptory challenges.

Accordingly, we conclude that refusal of the trial court to allow appellant to inform and to question prospective jurors concerning the minimum punishment for the enhanced offense deprived him of a valuable right and was, therefore, an abuse of discretion. Mathis v. State, supra, 576 S.W.2d at 839, Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629, 631-632 (1959) and cases cited in each.

Judgment of the trial court is reversed and the cause remanded.

      . “That is the range of punishment. Now, is there any of you who could not accept that range of punishment for a first degree felony? Is there any of you who could not sit on this jury knowing that that range of punishment is possible in a first degree felony? Is there any of you who could not consider the range of punishment of 5 to 99 years or life? So, I take it by your silence that you could consider the range of punishment as set out by law.”

      . To admission of documentary evidence showing the prior conviction alleged in the indictment, appellant made no objection.

      . “If you believe from the evidence beyond a reasonable doubt that all of the allegations set out in Paragraph Two of the indictment are true, you will . . . assess the punishment of the defendant at confinement . for any terms of years not more than 99 or less than 15, or for life.”

      . “Asking about bias against parts of the range of punishment is certainly permissible. Indeed, bias against any of the law upon which the defendant is to rely is ground for a challenge for cause and a proper matter for query. Art. 35.16(b)(2), V.A.C.C.P.; Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973).”

      . “It is proper to question the jury panel to determine whether there exists a prejudice or objection to assessing the range of punishment provided for by statute.”

      . The rationale was stated as follows:
      “The jury was selected both to determine guilt or innocence and in the event of conviction, to decide upon appropriate punishment and upon the the question of probation. The only chance either the State or the defense had to interrogate the prospective jurors on their prejudice or attitude towards probation was on voir dire. It was obviously proper to permit such examination.”
      And it has been held that a motion in limine by an accused to preclude the State from mentioning his application for probation during void dire is untenable for that very reason, White v. State, 478 S.W.2d 506, 508 (Tex.Cr.App.1972).

      . “The indictment . . . shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment . reciting such convictions shall not be read until the hearing on punishment .

      . “Article 36.01, § 1 . . . leaves no doubt that the enhancement portion of an indictment is to be read only at the hearing on punishment, unless the reading of the prior convictions is jurisdictional. This rule applies with equal force to both the accused and the State. (Emphasis in original.)”

      . Permitting the reading to the jury, at the commencement of the guilt stage of trial, of that portion of indictment alleging a prior felony conviction, over objection, is reversible error by reason of Article 36.01, § 1, supra.

      . In Spencer v. Texas, 385 U.S. 554, 575, 87 S.Ct. 648, 659, 17 L.Ed.2d 606 (1967) (Warren, C. J., dissenting), it was argued: “A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a ‘bad man,’ without regard to his guilt of the crime currently charged. Of course it flouts human nature to suppose that a jury would not consider a defendant’s previous trouble with the law in deciding whether he [had] committed the crime currently charged against him.”

      . Our holding does not embrace challenge for cause since appellant has not protected the record in that respect. See Smith v. State, 513 S.W.2d 823, 826 (Tex.Cr.App.1974) and Mathis v. State, 576 S.W.2d 835, 837 (Tex.Cr.App.1979).

      . The State argues that a good reason supporting the ruling of the trial court is “to prevent tipping the jury off that the Defendant is a convicted felon,” which “would only prejudice the Defendant’s rights.” In this case, however, not only was appellant willing to risk possible prejudice, if any, but also he was more anxious to claim the other right to ascertain whether awareness of a prior felony conviction would foreclose a prospective juror from fairly and impartially considering the minimum punishment for the enhanced offense. We cannot say an accused should be precluded from exercising his options according to his own rights if he insists on doing so.

      . The State further contends by failing to avail himself of the opportunity to query the panel on the minimum of five years for the primary offense, appellant must have been satisfied that any juror able to consider that minimum would have little difficulty in levying a fifteen year minimum. What the contention overlooks is that the latter arises in a quite different and perhaps significantly more stressful setting that under the ruling of the trial court would not be viewed by the juror until after conviction. One may well be prepared to consider five years for a first time burglary of a habitation but absolutely reject the notion of only fifteen years for an unreformed intruder who this time invades a rural residence in southwest Texas. Well knowing that the State could and would prove the prior burglary conviction against him, appellant had a greater need to test the attitudes of prospective jurors on the reality of enhanced punishment than to perpetuate the fiction of a five year minimum. Thus it is not a cure for abuse of judicial discretion, constraining him from getting to the real issue, that an accused decline to reiterate a practical irrelevance the prosecutor has already stated.


text:
    Ex parte Roy Ordria McCLELLAND.
    No. 62660.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 7, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under Article 11.07, V.A.C.C.P.

The petitioner contends, inter alia, that he was charged with capital murder in a one-count indictment which alleged he committed the offense on or about August 14, 1975. On July 12, 1976, the State, with the approval of the court, reduced the offense charged to murder, the petitioner waived trial by jury, and entered a guilty plea before the court to the offense of murder. His punishment was assessed by the court at life imprisonment.

Petitioner now complains that he was indicted for capital murder and that the court was without authority to accept his guilty plea without a jury being impaneled. It is argued that once an individual is indicted for capital murder under V.T.C.A., Penal Code, § 19.03, that offense cannot be reduced to murder, and that a defendant cannot plead guilty to murder under such circumstances unless there is a second count in the indictment charging murder under V.T. C.A., Penal Code, § 19.02, to which the guilty plea is entered, or unless there is a reindictment for murder. Although there was an evidentiary hearing before the convicting court, little attention was given to this allegation of the petitioner, and no mention of the same (allegation) was made in the Findings of Fact and Conclusions of Law of the trial court. There is no dispute, however, that petitioner was indicted in a one-count indictment for capital murder and that it was later reduced to murder by the State and that he pled guilty to murder before the court on the same indictment.

When petitioner’s application for writ of habeas corpus was received by this court, it was filed and submitted only to review the above discussed contention.

V.T.C.A., Penal Code, § 19.02, defines “murder,” a non-capital offense, which is a first degree felony. V.T.C.A., Penal Code, § 19.03 (capital murder), provides as follows:

“(a) 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;
“(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated rape, or arson;
“(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;
“(4) the person commits the murder while escaping or attempting to escape from a penal institution; or
“(5) the person, while incarcerated in a penal institution, murders another who is employed in the operation of the penal institution.
“(b) An offense under this section is a capital felony.
“(c) If the jury does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.” (Emphasis supplied.)

Article 37.08, Y.A.C.C.P., provides:

“In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.”

Article 37.09, V.A.C.C.P., provides:

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

Whether one offense bears such a relationship to the offense charged so as to constitute a lesser included offense must be by a case by case determination, Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976), and the newer statutory scheme of lesser included offenses does not restrict jurisdiction of the trial court, once properly invoked to try the offense charged, to proceed to judgment on a lesser included offense. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975).

It is clear that murder is a lesser included offense of capital murder, and the State may, like in cases where the offense charged include lesser offenses, reduce the offense charged to the lesser included offense. Appellant relies upon Ex parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979), but such reliance is misplaced. There was no reduction to a lesser included offense in Dowden. There, Dowden was charged with capital murder. Apparently the State, as part of a plea bargain, waived the death penalty and Dowden was permitted to waive trial by jury and enter a plea of guilty to the capital murder indictment. He was assessed life imprisonment. After citing Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), the Dowden opinion stated:

“It is clear from what has been said that the State cannot waive the death penalty in capital murder cases, and that the petitioner could not validly waive the right to trial by jury.” (Emphasis supplied.)

Nothing said in Batten or Dowden held that the State could not reduce a charge of capital murder to the lesser included offense of murder with its wide range of penalties. See footnote 3 of the Dowden opinion.

The petitioner is not entitled to the relief sought, and the application for writ of ha-beas corpus is denied.

      . Some confusion may have been caused by the language in the concurring opinion in Dowden and its suggestion about dismissing the capital murder indictment and re-indicting for murder.