author: POPE, Justice.

text:
    Victor MORAN, Jr., et al., Petitioners, v. Lester ADLER, Respondent.
    No. B-6817.
    Supreme Court of Texas.
    July 26, 1978.
    Rehearing Denied Oct. 11, 1978.

      Goodman & Cronfel, Ada Cronfel and Raymond J. Goodman, Laredo, for petitioners.
    Hall & Zaffirini, Horace C. Hall, III, Laredo, for respondent.
   POPE, Justice.

The plaintiffs assert their rights as equitably adopted children to their stepmother’s one-half community interest in two tracts of real estate. The defendant, Lester Adler, asserts his ownership in the land as a bona fide purchaser without notice of plaintiffs’ claim that they are the adopted children of the stepmother. The trial court rendered judgment on a jury verdict for the plaintiffs but the court of civil appeals has reversed the judgment of the trial court and remanded the cause to that court. The court of civil appeals held that the jury findings about equitable adoption were not supported by clear, unequivocal and convincing evidence. 549 S.W.2d 760. We granted the writ to examine that standard of proof. We also granted defendant Adler’s application which asserts his rights as a bona fide purchaser of the land without notice of the children’s adoptive status. We reverse the judgments of the courts below and render judgment that plaintiffs take nothing.

The plaintiffs in this cause are Victor Moran, Jr., Xóchitl Moran Hernandez, Yolanda Moran Coulter and Rene Moran. They are the children of Victor Moran, Sr. and Ester Landeros Moran. The mother died in 1929 and the next year Victor Moran married Ramona Guevara Moran. It is undisputed that the lands in suit were the community property of Victor Moran and Ramona, his second wife. Ramona died intestate in 1959, and in 1973 Mr. Moran borrowed sixty thousand dollars from the Laredo National Bank. He gave a deed of trust covering the tract to secure the loan and when he became delinquent the bank foreclosed the deed of trust lien. Lester Adler purchased the property at the foreclosure sale for seventy-five thousand dollars. Adler now asserts his rights as a purchaser from the bank who, he says, was an innocent purchaser for value and without notice of the claim by the children of the first marriage that they were equitably adopted by their stepmother, Ramona. The opinion of the court of civil appeals contains a full and correct statement of the testimony upon which the jury made its findings that Ramona, the stepmother, equitably adopted the four children of the earlier marriage. The testimony need not be repeated.

The plaintiffs urge that the court of civil appeals erred in requiring them to prove their ease by clear, unequivocal, and convincing evidence. They argue that the correct standard is the preponderance of the evidence. While there are statements in some opinions which require proof in equitable adoption cases to be “clear, unequivocal and convincing,” it has now been settled that the right standard is that the evidence must be factually sufficient to constitute proof by a preponderance of the evidence.

The trial court submitted all of the special issues in this case in terms of the preponderance of the evidence which was the correct standard for issues and which is also the correct standard for review of the factual sufficiency of the evidence. State v. Turner, 556 S.W.2d 563, 565 (Tex.1977); Meadows v. Green, 524 S.W.2d 509 (Tex.1975); Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950). Cf. Bigleben v. Stevens, 262 S.W.2d 785, 789-90 (Tex.Civ.App.—San Antonio 1953, writ ref’d n. r. e.). Though the opinion of the court of civil appeals suggests that the evidence would be factually sufficient under the preponderance standard, we cannot say the court so held. A court reviewing the factual sufficiency of the evidence should consider both the direct evidence and the circumstantial evidence. The general rule is that in reviewing the factual sufficiency of the evidence, the court of civil appeals must consider all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). As this court said in a prior equitable adoption case:

It was not necessary, however, that there be direct evidence of the agreement [to adopt]. It like any other ultimate fact could be proved by the acts, conduct and admissions of the parties and other relevant facts and circumstances. Cavanaugh v. Davis, 149 Tex. 573, 578, 235 S.W.2d 972, 975 (1951).

The court of civil appeals erred in its standard of review.

Defendant Lester Adler asserted his title to the lands by claiming that the bank took the mortgage on the property for a valuable consideration without notice of the claim by the Moran children that Ramona had adopted them. If the bank took the lien in good faith for a valuable consideration without notice, then Adler, regardless of his knowledge or notice, took good title as purchaser under the bona fide mortgagee at the foreclosure sale. West v. First Baptist Church of Taft, 123 Tex. 388, 71 S.W.2d 1090, 1098-99 (1934); Bergen v. Producers’ Marble Co., 72 Tex. 53, 11 S.W. 1027 (1888); Lewis v. Johnson, 68 Tex. 448, 450, 4 S.W. 644, 645 (1887); Donald v. Davis, 208 S.W.2d 571, 573-74 (Tex.Civ.App.—Waco 1948, writ ref’d); Benn v. Security Realty & Development Co., 54 S.W.2d 146, 150 (Tex.Civ.App.—Beaumont 1932, writ ref’d); Hunley v. Bulowski, 256 S.W.2d 932 (Tex.Civ.App.—Texarkana 1953, writ ref’d n. r. e.); Harper v. Over, 101 S.W.2d 830 (Tex.Civ.App.—Eastland 1937, no writ); Annot., 63 A.L.R. 1362, 1370 (1929); 39 Tex.Jur.2d Mortgages and Trust Deeds §§ 69, 70 (1976). The jury made findings that the Laredo National Bank at the time it took a deed of trust on the property had notice that the plaintiffs claimed the land, that the bank had knowledge of facts sufficient to put it on inquiry, and that a diligent inquiry would have revealed the claim by the plaintiffs to an undivided one-half interest in the property. The defendant, Adler, says there is no evidence to support those findings.

The court of civil appeals, without reaching Adler’s no-evidence point, held that children who are equitably adopted are legal heirs of the adopting parent. It then distinguished an earlier decision of this court which held that equitably adopted children, unlike natural children and statutorily adopted children, receive only an equitable title from a deceased adoptive parent. The court of civil appeals quotes Fleming v. Ashcroft, 142 Tex. 41, 175 S.W.2d 401 (1943), and construes it to hold that the innocent purchaser doctrine protects a purchaser by cutting off an equitable title, but that the doctrine does not cut off a legal title. That ease was decided in 1943. The court of civil appeals said that the Probate Code changed the status of equitably adopted children so that they are now “heirs at law.” It held that equitably adopted children now inherit the same quality of title as a natural child or a statutorily adopted child, and for that reason, the court of civil appeals concluded that Fleming and its protection of innocent purchasers against the claim of an equitably adopted child was changed by the Probate Code.

It is our opinion that Fleming was not grounded upon the supposed distinction between legal and equitable title that is owned by an equitably adopted child. The real basis for protection of an innocent purchaser is explained in Fleming by its quotation from Edwards v. Brown, 68 Tex. 329, 337, 4 S.W. 380 (1887): “The policy of our laws is to protect purchasers against secret titles, whether they be legal or equitable.

The Fleming opinion cites three cases by this court that state that the holder of the apparent title will be protected over the holder of the secret title. In Edwards v. Brown, supra, at issue was the rights of heirs of a spouse when title had been taken in the name of the other spouse. The court gave this as its reason for protecting an innocent purchaser who did not have notice of a holder of the legal estate who had not recorded his deed:

But it may be further remarked that it does not follow that, because one may have the legal title, another may not acquire a superior equity as a bona fide purchaser. The holder of the legal estate by an unrecorded deed cannot prevail over a purchaser from his grantor, who has paid value without notice of the unrecorded conveyance.
* * * * * *
If a vendee is to be required to inquire into his vendor’s family history in order to ascertain whether the property was community or not, why should he not be held to inquire into his business history and thus be affected with notice of secret trusts on behalf of partners or other third parties? 68 Tex. at 332-33, 4 S.W. at 381.

Marshburn v. Stewart, 113 Tex. 507, 254 S.W. 942 (1923), was another case cited in Fleming. The reason expressed in Marsh-burn for protecting the innocent purchaser even against an outstanding legal title, was. that apparent title should prevail over hidden titles:

While in this case the apparent title and the real title are both legal titles, we do not think, in view of the legal presumption of the sufficiency of the apparent title and the burden of proof imposed by our law on the holder of the real title to prove its superiority, that it should be given greater weight in determining the burden of proof on the question of notice than is given to an outstanding equitable title when asserted against a legal title. The law having invested Mrs. Aiken, as survivor of the community, with the apparent legal title in fee simple to this land, and such apparent title having passed to Marshburn for an adequate and valuable consideration, we think before defendants in error can defeat the same they must further show that at the time he purchased he had notice of their rights, or that he had notice of facts sufficient to put him upon inquiry, and that such inquiry, pursued with reasonable diligence, would have necessarily discovered the real facts upon which their claim to the land involved in this suit is predicated. 113 Tex. at 513, 254 S.W. at 944.

The protection of the apparent title is also discussed in Patty v. Middleton, 82 Tex. 586, 17 S.W. 909 (1891), cited in Fleming:

There is no doubt that in many opinions this court has used expressions to the effect that the rights of heirs of a deceased member of the matrimonial union, where the land was conveyed during the marriage to the survivor, was a legal estate, and the title transmitted by descent a legal title; but this is not true as matter of law, and to so hold when words or terms are used with reference to the right of a bona fide purchaser from the survivor to whom the lands were directly conveyed would overturn all the long-recognized rules applicable to the question, for the question then is not as to the real interest which the wife or her heirs had, but as to the apparent right in the surviv- or as evidenced by the deeds through which the property was acquired. 82 Tex. at 592, 17 S.W. at 912.

The correct basis for the innocent purchaser doctrine is that of “the apparent title or the legal title as appearing of record” to an interest in land. Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 234 (1938). See Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675 (1942); Gholson v. Peeks, 224 S.W.2d 778, 782 (Tex.Civ.App.—Eastland 1949, writ ref’d); Federal Life Ins. Co. v. Martin, 157 S.W.2d 149, 152 (Tex.Civ.App.—Texarkana 1941, writ ref’d); Burton v. Connecticut General Life Ins. Co., 72 S.W.2d 318, 322 (Tex.Civ.App.—Fort Worth 1934, writ ref’d).

The doctrine which protects an innocent purchaser frequently finds its application in cases in which the legal title prevails over the equitable title. That confrontation occurs so frequently that many opinions place their holdings upon a legal-equitable distinction. See, e. g., Mitchell v. Schofield, 106 Tex. 512, 171 S.W. 1121 (1915); Daniels v. Mason, 90 Tex. 240, 38 S.W. 161 (1896); Foster v. Christensen, 67 S.W.2d 246 (Tex.Comm’n App.1934, judgmt. adopted); Heidelberg v. Harvey, 391 S.W.2d 828 (Tex.Civ.App.—El Paso 1965, writ ref’d n. r. e.); Connor v. Lane, 355 S.W.2d 223 (Tex.Civ.App.—Waco 1962, no writ); Landry v. Williamson, 335 S.W.2d 400 (Tex.Civ.App.—Houston 1960, writ ref’d n. r. e.); Stahl v. Westerman, 250 S.W.2d 325 (Tex.Civ.App.—San Antonio 1952, no writ); Balcomb v. Vasquez, 241 S.W.2d 650 (Tex.Civ.App.—El Paso 1951, writ ref’d n. r. e.); Moye v. Goolsbee, 124 S.W.2d 925 (Tex.Civ.App.—Beaumont 1939, writ ref’d); Home Owners’ Loan Corp. v. Netterville, 110 S.W.2d 628, 630 (Tex.Civ.App.—Beaumont 1937), rev’d on other grounds, 134 Tex. 30, 132 S.W.2d 93 (1939); Love v. R. S. Allday Supply Co., 106 S.W.2d 830, 832 (Tex.Civ.App.—Eastland 1937, writ dism’d).

It is our opinion that Fleming v. Ashcroft, supra, correctly holds that a purchaser from the apparent legal heir, in the absence of notice to the contrary, can rely upon the presumption that there are no equitably adopted children. The reason for that rule is that the claim of the equitably adopted child is not apparent. There áre neither birth nor adoption records which a purchaser can consult to protect himself. The proof of an equitable adoption is extrinsic, may come from any source, and in that sense is hidden or secret. This is particularly so after the alleged adoptive parent, Ramona Moran in this case, has died. A purchaser from the heirs must discover the apparent heirs, whether they are the natural or statutorily adopted children, at his own peril. But a child who is adopted by estoppel affords no legal record. As this court has held before, an equitable adoption or adoption by estoppel does not afford all of the legal consequences of a statutory adoption. Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex.1963).

There remains for consideration Adler’s contention that the Laredo National Bank, through whom he acquired his title, was an innocent purchaser as a matter of law. He urges that there is no evidence either of knowledge or of facts which were sufficient to put the bank upon inquiry. We agree.

Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346 (1936), was a holding that, as a matter of law, the defendant was protected as an innocent purchaser of an oil and gas lease. Plaintiffs were the children of Manuel Strong and his first wife Nancy Strong. Manuel and Nancy Strong acquired some land as their community property, but it was taken in his name. After the death of his first wife, Manuel and his second wife executed an oil and gas lease. The children of the first marriage brought suit in trespass to try title to recover the undivided interest which they had inherited from their mother. This court in its holding as a matter of law that the plaintiffs had not overcome the defense of innocent purchaser wrote:

A purchaser of land must search the records, for they are the primary source of information as to title and he is charged with knowledge of the existence and contents of the recorded instruments affecting the title. [Citations omitted.] He must also make inquiry as to the rights or title of the possessor, for possession is equivalent to registration, in that it gives constructive notice of the possessor’s rights. .
The value and effectiveness of the registration statutes are to an extent impaired by the rule that possession gives constructive notice of title, but the rule is justified, or at least supported, as suggested by Mr. Pomeroy, by the fact that ordinarily the truth as to title may be readily obtained from the person in possession. We find no good reason, however, for imposing upon the purchaser the additional burden of ascertaining at his peril what may be the common reputation in the community as to- the ownership of land. Reputation does not ordinarily afford a . ready or dependable source of information. It has the fallibility of hearsay. Rights or titles to land should not be dependent upon the existence or nonexistence, the truth or the untruth, of common reputation, notoriety, or rumor. 98 S.W.2d at 348.

There was evidence that Victor Moran, following the death of his second wife, acting alone, executed oil and gas leases covering the property which were recorded. He executed surface leases and conveyances to tracts of land out of a larger tract, including one conveyance of two acres to one of the plaintiffs. Victor Moran was named as the sole owner in a condemnation proceeding instituted by the City of Laredo in 1970. He had previously given mortgages on the land to borrow money. At the time the bank took its mortgage on the property, none of the plaintiffs were in possession of the land, and the plaintiffs did not assert their claim prior to this suit.

Plaintiffs relied upon two items which they say were sufficient to put the bank upon inquiry. Plaintiff Rene Moran, a police officer, testified that he told virtually every member of the Laredo Police Department that he, his brother and his sisters claimed an interest in the land. That kind of reputation and hearsay evidence was rejected in Strong v. Strong, supra. The other item upon which the plaintiffs rely is an affidavit that Victor Moran, Sr. recorded in the Webb County deed records in 1968. He swore that plaintiffs were the natural children of him and his first wife, that they were not Ramona’s natural children and that Ramona did not adopt them. The fact that Moran denied Ramona’s adoption in the affidavit, argue the plaintiffs, put the Laredo National Bank on notice to make further inquiry about the negative of the statement. In our opinion, even actual knowledge of a second marriage does not put one on inquiry about the adoption of children of the first marriage by the new spouse of the second marriage. There is no stronger reason that such facts put one on notice than existed in Strong v. Strong. It is our opinion that the evidence relied upon by the plaintiffs in support of the jury’s findings about the Laredo National Bank’s knowledge or notice of facts about the equitable adoption is no more than a scintilla of evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898).

We reverse the judgments of the courts below and render judgment that plaintiffs take nothing.

BARROW, J., not sitting.

      . The holder of the “apparent title,” as used in this opinion, is the “one apparently invested with title” when viewed from the recorded instruments, “rely[ing] on the record.” Waggoner v. Dodson, 96 Tex. 415, 422, 73 S.W. 517, 518 (1903). See Hennessy v. Blair, 107 Tex. 39, 42, 173 S.W. 871, 873 (1915); Patty v. Middleton, 82 Tex. 586, 590-91, 17 S.W. 909, 911 (1891); 4 F. Lange, Texas Practice: Land Titles and Title Examination § 335, at 29 (1961); 5 F. Lange, Texas Practice; Land Titles and Title Examinations § 813, at 244 (1961). In determining the apparent title, one may also rely on well established legal presumptions operating on the recorded facts and knowledge of whether a grantee is, in fact, deceased. Thus when the recorded instruments show the husband purchased the land during marriage, one who purchases from the surviving wife acquires the “apparent title” because of the presumption that property purchased during marriage is community property. Sanburn v. Schuler, 86 Tex. 116, 23 S.W. 641 (1893).


source: Caselaw Access Project

author: DOUGLAS, Judge. DALLY, Commissioner. DOUGLAS, Judge. ODOM, Judge. REAVLEY, Special Judge, DOUGLAS, Judge,

license: Public Domain

text:
    James E. WHITMORE, Appellant, v. The STATE of Texas, Appellee.
    No. 52325.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.
    On Rehearing April 6, 1977.
    State’s Motion for Rehearing July 12, 1978.
    State’s Motion for Rehearing En Banc Denied Oct. 4, 1978.

      Brantley Pringle and Robert Schmidt, III, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty. and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death. The indictment alleged in substance that Whitmore caused the death of Judy Carol Rummel by employing Harrell Totty for remuneration to kill her.

The evidence presented shows that at approximately 5:00 p.m., on September 26, 1974, appellant, James Whitmore, had gone to the Dos Gringos Bar in Fort Worth. Joyce Walton, a waitress who served appellant, testified that he appeared to be upset. She further stated that he told her that his girlfriend had tried to run over him with a car and attempted to stab him on two previous occasions and that in response to her comment, “You mean to tell me you’re going to put a contract out on her?” he replied, “Well, I can’t let her kill me.” Whitmore then related that he had talked with a security guard as to exactly what could be done about the situation without elaborating on the details of their plans. He also stated to her that he would not be caught because no money would be transferred between them. As he left he said, “Well, you’ll probably read about this in the paper.”

Allen Bailey, his neighbor, testified that on the evening in question he had gone skeet shooting. He returned to his apartment around 9:30 p.m. and began cleaning his shotgun. Shortly thereafter, Whitmore came over and told him “. . . that if I heard two shots about two o’clock in the morning, not to worry about it, just open my door and he wanted to use the phone to call the police” because he did not have a telephone in his apartment. Bailey then testified that Whitmore had told him about his girlfriend’s two previous attempts to kill him and about the details of his plan with the security guard, Harrell Totty, to kill her. The plan called for him to invite his girlfriend over to make amends for their past disagreements. Totty would be making his rounds of the apartment complex and would be in appellant’s bathroom and he would yell, “Totty, Totty, Totty”, and Totty would come around the corner and shoot her twice. Then they were going to take a knife from the sink and use a sock to put it in her hand. Whitmore would make sure she was dead and then call for a doctor who lived in the complex to come over. Bailey stated that he did not believe Whit-more.

Tory Schroeder came into the apartment and Whitmore told him of the attempts made on his life by his girlfriend to which Schroeder kiddingly replied, “I would have her shot.” Some ten or fifteen minutes later Schroeder and Whitmore left to buy some beer. On the way to the Quik Sak grocery he told Schroeder that he was going to have his girlfriend, Judy Rummel, shot and that he was going to pay the security guard to do it and related the same plan to him as testified to by Bailey.

Judy Rummel, the deceased, was employed as a waitress at Pinto’s, a restaurant and bar. Whitmore knew that the place usually remained open until 2:00 a.m. Judy closed Pinto’s early on the evening in question because there were no customers. Susan Cowell, a friend and former roommate of the deceased, testified that she was with her at Pinto’s at approximately 9:30 p.m. and that Judy was very happy that evening because it was her first day back at work after having been in the hospital for pneumonia and she was going to see Whitmore that night.

Anita McCasland, the deceased’s roommate, testified that she was with her at Pinto’s from 8:00 p.m. until it closed at 11:30 p.m. and that her roommate had been in a good mood all evening. The deceased gave her a ride to their trailer house and after dropping her off said that she had received a call from Whitmore and was going to his apartment.

Schroeder, Totty and Whitmore were still in Bailey’s apartment when the deceased arrived. Schroeder then returned to Dr. Horn’s apartment where his mother was visiting and as he looked back he observed appellant, Totty and the deceased going into the apartment together. He then told Dr. Horn and his mother of Whitmore’s threats and began watching the apartment through the window of Dr. Horn’s apartment. Ten minutes later he heard two shots and then saw Whitmore go next door to Bailey’s apartment. Bailey, who had left his apartment for a few minutes to go to the store, also heard the two shots as he was unlocking his door after which he heard a woman scream, “Oh, God.” Shortly thereafter, Whitmore came into his apartment and said, “That was a cold blooded son-of-a-bitch, wasn’t it, Allen?” Whitmore called the police and then went to Dr. Horn’s apartment and told him that there was a woman in his apartment with two bullet holes in her. Dr. Horn told him to call an ambulance and police and to “get the hell” out of his apartment. Prior to going to Dr. Horn’s, Whitmore had yelled to Bailey as he was leaving, “Al, come over and look at this s — .” Bailey stepped outside his apartment and looked into the apartment. The deceased was lying on her side with her left arm draped over her forehead and her back toward the fireplace.

Officer C. P. Chessar of the Fort Worth Police Department testified that upon his arrival at the apartment he had the following conversation with Totty:

“Q. Did Totty describe to you the circumstances under which he had gone to the apartment that evening?
“A. Yes, sir, he did.
“Q. What did he say had happened?
“A. He stated he had been making his rounds, and knew that Whitmore had been having trouble, and he had gone to the apartment, One Seventy-One, to use the restroom. He stated that while he was inside the restroom he heard Whitmore screaming for help, and he went to the entranceway. He said, T drew my pistol and fired twice, I think.’
“Q. All right. Did he say who he shot at?
“A. He stated that he had shot at a white female, coming at Whitmore with a knife extended.”

Detective E. W. Cole of the homicide division testified that upon his arrival:

“He [Totty] told me he was the security guard there at the apartments that he— They had had trouble with Mrs. Rummel before at the apartments, that they had had complaints of her trying to run over Mr. Whitmore, that he was making his rounds, and that he had stopped into Mr. Whitmore’s apartment to use the bathroom, or restroom, and while there, in the restroom, he heard a call from Whitmore, and when he came around he saw Mrs. Rummel coming at James Whitmore with a knife, and that he fired his weapon.”

The Tarrant County medical examiner testified that the deceased had died as a result of blood loss into the thoracic chest due to two gunshot entry wounds. Several other witnesses who had known Whitmore testified that he drank heavily and was an alcoholic. There was also testimony that there had been problems in the past between him and the deceased.

Whitmore testified that he had talked to Judy Rummel at 4:30 p.m. on September 26, 1974, approximately seven hours before her death and he knew that she worked until 2:00 a.m. each morning. He further testified that at 6:00 p.m. on September 26, 1974, he had asked the security guard, Harrell Totty, to come check on him around 2:00 or 2:15 a.m. because he was going to have a date and the deceased knew of this fact. He related that when Totty was making his rounds at approximately 11:30 p.m. and asked to use his bathroom, just before the killing, he told Totty there would be no need to come by at 2:00 a.m. because he was going to spend the night at his mother’s place.

In his first ground of error, he contends that the trial court erred in not granting a new trial based on newly discovered evidence, the newly discovered evidence being that Harrell Totty, also indicted for this offense, had been acquitted.

The jury returned its verdict on May 30, 1975, and the motion for new trial was not filed until June 30, 1975. Assuming that we could consider the late motion for new trial, a subsequent acquittal of a co-principal of the crime does not by itself entitle a convicted co-defendant to a new trial. Another jury often has different evidence involving a single transaction. Different juries could reach opposite results on the same evidence. Rozell v. State, 502 S.W.2d 16 (Tex.Cr.App.1973).

Next, he contends that the trial court erred in filing “Conclusions of Law” overruling the motion for new trial over his objection. He urges that the action of the trial court is in violation of Article 40.07, V.A.C.C.P., which provides:

“In granting or refusing a new trial, the judge shall not sum up, discuss or comment upon the evidence in the case, but shall simply grant or refuse the motion without prejudice to either party.”

The court, in its conclusion, found that the motion was untimely filed. In order for such action to constitute reversible error, there must be a showing of injury to appellant. Mims v. State, 378 S.W.2d 318 (Tex.Cr.App.1964). No harm is shown. Ground of error number two is overruled.

In his third ground of error, he contends that the trial court erred in sustaining the State’s challenge for cause of venireman Ray E. Rugg. He argues that Rugg was a qualified juror under the constitutional standards of “ Witherspoon ” and that the Legislature is without authority to impose stricter standards as to a venireman’s qualification on the death penalty.

He is apparently contending that V.T. C.A., Penal Code, Section 12.31, is in conflict with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and that the prospective juror Rugg was excused in violation of Witherspoon.

In Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975), we held that the holding of Witherspoon was still alive and well in light of the new statutory scheme providing for the imposition of the death penalty, the adoption of which followed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Moore v. State, 542 S.W.2d 664 (1976).

The statutory scheme for capital murder [V.T.C.A., Penal Code, Section 19.03 (formerly Article 1257, V.A.P.C., as amended in 1973), and Article 37.071, V.A.C.C.P.], including the possible infliction of the death penalty, has been upheld by this Court in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

Prospective juror Rugg stated that under certain circumstances he would falsify his vote in answering the questions or issues submitted to him as provided by Article 37.071, V.A.C.C.P., in order to avoid imposition of the death penalty. Although Rugg stated that in a proper case he might be able to impose the death penalty, he consistently stated that his opposition to the death penalty would affect his deliberation on the fact issues submitted to him as required by Article 37.071, supra. While it is conceded by the State that Rugg was qualified under the Witherspoon doctrine, his answers were such as to disqualify him under V.T.C.A., Penal Code, Section 12.31(b), which provides:

“Prospective jurors, shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

It is of no consequence that prospective juror Rugg was qualified under Witherspoon. Moore v. State, supra. Ground of error number three is overruled.

Ground of error number four complains of the admission into evidence of photographs taken of the deceased in the morgue after the killing. The photographs, taken before the autopsy, show the location of the wounds and were admissible under Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). No error is shown.

In ground of error number five, he contends that the trial court erred in refusing to admit into evidence at the preliminary competency to stand trial hearing an affidavit by Dr. Jackson Speegle regarding his mental condition. He argues that the affidavit was admissible to show his state of mind and he relies on Article 3726, V.A.C.S. His contention is without merit.

The affidavit in question was dated August 15,1960, and states that appellant was a schizophrenic. The State’s objection that the affidavit was hearsay and was not authenticated or qualified under the provisions of Article 3737e, V.A.C.S., was properly sustained. The affidavit was more than fifteen years old and was of no material relevance in the instant case. There is no showing in the record that Dr. Speegle was unavailable or that any attempt had been made to subpoena him.

Ground of error number six urges that the trial court erred in the admission into evidence at the trial on the merits the judgment of the competency hearing. Such contention is without merit. Where testimony is offered upon the main trial on the issue of insanity, the admission into evidence of the judgment in a preliminary sanity hearing is proper. Wilkinson v. State, 423 S.W.2d 311 (Tex.Cr.App.1968).

Ground of error number seven complains that the trial court should have submitted to the jury a charge during the punishment phase of the trial as to the issue of temporary insanity caused by intoxication. The charge submitted to the jury at the punishment stage of the trial properly instructed the jury as to the law of temporary insanity caused by intoxication as a mitigating fact. No error is shown.

In grounds of error numbers eight, nine, ten and fourteen appellant contends that the grand jury did not hear sufficient evidence before it returned the indictment and that the trial court should not have refused him a copy of the grand jury proceedings so that it could be included in the record on appeal.

The motion to quash the indictment was filed June 9, 1975, ten days after the trial was concluded. A grand jury may determine the nature and competency of any evidence presented to it and this Court cannot go behind the face of the indictment. Carpenter v. State, 477 S.W.2d 22 (Tex.Cr.App.1972).

There is no showing in this record that the grand jury testimony was ever recorded or transcribed nor has appellant shown a particularized need. No error is shown. Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.1974). Grounds of error numbers eight, nine, ten and fourteen are overruled.

Ground of error eleven contends that the trial court should not have transferred this case from Criminal District Court No. 4 to Criminal District Court No. 1. The court has the power to transfer causes and there is no jurisdictional problem. Bank v. State, 503 S.W.2d 582 (Tex.Cr.App.1974). There was no challenge to the regularity of the transfer made at the time of the trial and no harm has been shown. Nothing is presented for review.

In grounds of error numbers twelve and thirteen, appellant contends that the death penalty is cruel and unusual punishment and that the juries and prosecutors are given too much discretionary authority. These contentions have been decided adversely to appellant by this Court in Jurek v. State, supra, and Smith v. State, 540 S.W.2d 693 (1976), and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

Finally, in ground of error number fifteen, appellant contends that it was error for the trial court to admit certain statements made by the deceased to her roommate, Anita McCasland, outside his presence on the day of her murder. Many of the statements came in without objection. Even if the statements were hearsay, no reversible error was committed. The statements made earlier to her roommate are admissible to show that she was going to see appellant on a peaceful mission. Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973); Sherman v. State, 428 S.W.2d 338 (Tex.Cr.App.1968); Porter v. State, 152 Tex.Cr. 540, 215 S.W.2d 889 (1948).

No reversible error having been shown, the judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Commissioner.

On motion for rehearing we have reconsidered the appellant’s contention that he was deprived of a constitutional right to the testimony of a co-defendant who was acquitted after the appellant’s conviction.

James E. Whitmore and Harrell Totty were indicted for the murder of Judy Carol Rummel. It was alleged that the appellant, for remuneration and the promise of remuneration, hired Totty to kill the deceased. A severance was requested and granted. Appellant was tried first, although he asked that Totty be tried first, and a jury returned a verdict of guilty of capital murder and assessed punishment at death; judgment was entered on May 30, 1975, and the appellant’s motion for new trial was overruled July 10th.

Harrell Totty, who admitted he shot the deceased, was subsequently tried. The court charged the jury on the law of capital murder, murder, voluntary manslaughter, self-defense, and defense of a third person. On October 4, 1975, the jury returned a verdict of not guilty. On October 8, 1975, the appellant filed a motion for new trial and alleged as grounds newly discovered evidence. Appellant alleged that at the time of his trial he was denied the testimony of Totty, because Totty would have asserted his Fifth Amendment right and refused to testify. It was further alleged that since Totty had been acquitted his testimony was now available. The court overruled appellant’s motion for new trial because it was filed after the time provided for filing such motions. See Art. 40.05, V.A.C.C.P.

At the hearing on the motion for new trial Totty’s attorney testified that the appellant’s attorney had requested that Totty testify at the appellant’s trial. Totty’s attorney stated that he advised appellant’s attorney that Totty would assert his Fifth Amendment right and would not testify at appellant’s trial. At the hearing appellant offered the testimony of Totty at his own trial to show what his testimony would have been if Totty had testified at appellant’s trial. The court admitted a transcript of Totty’s testimony as a bill of exception for the record on appeal.

Totty testified at his own trial that he was a member of the United States Air Force. His general duty was that of a security guard. He had secret clearance and on special occasions had guarded nuclear weapons and the President of the United States. With permission of the Air Force, he worked part-time as a security guard at the apartment complex where he and his family lived. While working as a security guard at the apartments he became acquainted with the appellant and his former girl friend, Judy Rummel, the deceased. The first time he saw the deceased he pulled her off the appellant because she was sitting on him and beating him with her fists. Totty testified that on another occasion the deceased was arrested by the police for breaking appellant’s window. He had numerous complaints about both the deceased and the appellant and tried to get the manager to have the appellant evicted from the apartments. On another occasion he saw the deceased with her car try to run over the appellant and a girl friend. Because of all this trouble, the apartment manager instructed Totty that under no circumstances was the deceased to be allowed to be at the apartments and that he should check on appellant’s apartment at least every hour.

Totty testified that on the night of the shooting he was making his rounds checking the apartments. He knocked on appellant’s door and was told to come in. Appellant’s door was unlocked and he did not see the deceased. Appellant was sitting on his couch. Totty asked to use the restroom and checked the back room to make sure the deceased was not present, because he remembered that he had not been checking appellant’s apartment as he had been instructed to do. When he was coming out of the bedroom from using the restroom he heard the appellant shout, “Help, help. She’s going to kill me.” The deceased was about an arm’s length from the appellant with a knife in her hand. He stated that deceased appeared crazed and out of her mind and that he was afraid for appellant’s life and his own. He drew his gun and shot the deceased. He stated that when he shot her he was too far away to physically stop her and that he was afraid, if he did not shoot, she would attack him and would have killed the appellant. Totty further testified that he had not agreed to kill or discussed killing Judy Rummel with appellant; that he had not received any money or the promise of anything from Whitmore or anyone else to kill her. He stated that he was sorry that the killing occurred but that there was no way he could have avoided it.

A trial court has considerable discretion in granting or denying a new trial in which newly discovered evidence may be admitted. To show that the court abused its discretion by not granting a new trial, the record must reflect that: (1) the newly discovered evidence was unknown to the movant at the time of his trial; (2) the movant’s failure to discover the evidence was not due to his want of diligence; (3) the materiality of the evidence is such as would probably bring about a different result on another trial; and (4) the evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching. Hernandez v. State, 507 S.W.2d 209 (Tex.Cr.App.1974); Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975); Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974).

The testimony of Harrell Totty was known to the appellant before his trial and is not in the usual meaning of the words newly discovered; however, it was newly available evidence. A defendant may not call as a witness a co-defendant who has indicated he will assert his privilege against self-incrimination under the Fifth Amendment of the United States Constitution. Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972); Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); United States v. Roberts, 503 F.2d 598 (9th Cir. 1974) cert. denied 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. McKinney, 453 F.2d 1221 (9th Cir. 1972). However, after the witness has been convicted or acquitted that witness’ testimony then becomes available. United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967). See Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969); Franco v. State, 491 S.W.2d 890 (Tex.Cr.App.1973); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). Also, a witness may change his mind and, while represented by counsel, elect to waive that right and testify. Thus, it has been held that the witness then becomes the source of new factual information not otherwise previously available. United States v. Guillette, 404 F.Supp. 1360 (D.C.Conn.1975).

This Court has long recognized that newly available evidence is the same as newly discovered evidence. Under our prior laws, which have been repealed and held unconstitutional, principals, accomplices, or accessories could not testify on behalf of each other. Where two people were jointly or separately indicted for an offense arising from the same incident, and one was tried and convicted, and subsequently the other was tried and acquitted, a new trial was granted the former to enable him to obtain the testimony of the latter, where it appeared that the new evidence which the law had formerly placed beyond his reach was admissible and material to his defense. Branch’s Penal Code, Sec. 762 (2d ed. 1956) which cites numerous cases in support of the rule stated, including, e. g., Lyles v. State, 41 Tex. 172 (Tex.App.1874); Rucker v. State, 7 Tex.App. 549 (1880); Sylvas v. State, 68 Tex.Cr. 117, 150 S.W. 906 (1912). As this Court stated in Barker v. State, 73 Tex.Crim. 229, 164 S.W. 383 (1914):

“It is well settled that if, after the defendant is tried and convicted, his co-defendant is tried and acquitted, the testimony of the latter is held to be newly discovered.”

The difference between this situation and that in the case at bar is that in the former the testimony was not available because a statute made the witness incompetent, while in the latter the testimony is unavailable because of the witness’ constitutional rights.

There is no doubt that the testimony of Totty was newly available evidence after the jury at his trial acquitted him. The appellant could not be charged with a want of diligence. Although it was probably unnecessary to do so to preserve error, he attempted to obtain at the time of his trial the testimony of Totty. From our discussion of the testimony of Totty given at his own trial, there is no doubt that his testimony would be admissible and not merely cumulative, corroborative, collateral, or impeaching; and that its materiality was such as would probably bring about a different result on another trial. If appellant had filed his motion for new trial based on newly discovered evidence within the time provided by our Code of Criminal Procedure, we would have held that it was an abuse of discretion to deny appellant a new trial. Therefore, the question is whether an accused’s right to compulsory process under the Sixth Amendment of the United States Constitution and the Texas Constitution is superior and should override a valid provision of our Code of Criminal Procedure.

The Supreme Court of the United States, in the case of Washington v. Texas, 388 U.S. 24, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), was faced with a conflict between an accused’s right to compulsory process and a state statute which prevented his co-defendant from testifying on behalf of the accused. The Court held that the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment. The Court said:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”

The Court held that Washington was denied his right to compulsory process because the State arbitrarily denied him the right to call a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.

In Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972), the Fifth Circuit relying on Washington v. Texas, supra, stated that “when a state procedural rule comes into conflict with a fundamental constitutional right it is clear that the state rule must yield.” In Braswell, the “rule” was invoked regarding the sequestration of witnesses who intended to testify. A defense witness violated the “rule” by remaining in the courtroom during the presentation of the state’s case. The Court of Appeals reversed and ordered a new trial. The Court discussed at length the excluded testimony which clearly showed that his testimony was crucial to the appellant’s claim of self-defense. While the Court noted that Federal Courts are reluctant to strike down valid procedural rules, the Court held that in these particular and extraordinary circumstances the exclusion of the appellant’s sole corroborating witness denied the appellant his Sixth Amendment right, and rendered his trial fundamentally unfair.

At the time of appellant’s trial, the appellant’s constitutional right to compulsory process was in direct conflict with Harrell Totty’s constitutional right against self-incrimination. The weight of authority appears to be that the privilege against self-incrimination is the superior right. Rodriguez v. State, supra; Glasper v. State, supra; United States v. Roberts, supra; United States v. McKinney, supra; cf. Victoria v. State, supra. In order for appellant to receive the full benefit of his constitutional rights we will review this claim as it stood at the time he filed his motion for new trial based on newly available evidence, because at that time the conflict of constitutional rights was no longer present due to Totty’s acquittal.

The case at bar does not present a question of lack of diligence in asserting this constitutional right. The record reflects that appellant’s attorney attempted to have Totty testify at appellant’s trial but that he could not compel Totty to testify. Totty’s testimony was therefore not available until after October 4, 1975. Four days later, on October 8, 1975, appellant filed his motion for new trial based on newly discovered evidence.

We cannot say that the failure to grant appellant a new trial is harmless. As noted earlier, one of the most important factors in determining whether the trial court abused its discretion by failing to grant a new trial based on newly discovered evidence is whether “its materiality was such as would probably bring about a different result on another trial.” Hernandez v. State, supra. Other cases have stated that it must be shown that “the new evidence was probably true, and that such evidence would probably produce a different result at another trial.” Myers v. State, supra.

V.T.C.A. Penal Code, Sec. 19.03 (Capital Murder), states that:

“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and;
“(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; * * *”

The appellant was convicted of capital murder and sentenced to death because the jury found that he hired Harrell Totty to kill Judy Rummel. The appellant and Totty were the only persons present at the time Judy Rummel was killed. The jury that convicted the appellant did not hear the testimony of Totty. Totty’s trial was held after appellant’s. At his trial Totty testified in his own behalf. The jury apparently believed Totty’s testimony and acquitted him. Therefore, it is beyond dispute that the appellant was harmed by not being granted a new trial after Totty was acquitted and at a point in time when he could have compelled Totty to testify.

The appellant was deprived of the full benefit of his constitutional right to compulsory process guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States. In the circumstances of this case our Code of Criminal Procedure provision governing the time for filing of motions for new trial must yield to the appellant’s superior constitutional rights. Accordingly, the appellant’s motion for new trial that alleged as grounds newly available testimony should have been granted.

Our decision in this case does not overrule the cases stating the general rule that an untimely motion for new trial should not be heard by the trial court. See e. g. Jones v. State, 501 S.W.2d 677 (Tex.Cr.App.1973); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973); Morales v. State, 458 S.W.2d 56 (Tex.Cr.App.1970); Nelson v. State, 464 S.W.2d 834 (Tex.Cr.App.1971); Roberts v. State, 493 S.W.2d 849 (Tex.Cr.App.1973); Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Morgan v. State, 519 S.W.2d 449 (Tex.Cr.App.1975); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976). However, in some cases where an accused’s constitutional rights are in conflict with a valid procedural rule of law the procedural rule must yield to the superior constitutional right. Also, in this case, the facts show good cause for a late filing of the motion for new trial. See Article 40.05, V.A.C.C.P. At no time during the statutory period for filing motions for new trial could the appellant have raised the issue presented here, because during that period of time Totty had not been tried and was unavailable as a witness. Even though the motion for new trial was not granted, the careful trial judge undoubtedly recognized the conflict between the accused’s constitutional rights and the statutory provision and permitted appellant’s counsel to perfect the record. Therefore, the appellant here need not be relegated to habeas corpus relief. A constitutional question similar to the one presented here was raised in Jones v. State, supra. However, in that case, the co-defendant, whose testimony Jones alleged he was deprived of, was available to testify at the time of trial because he had already been convicted of the offense in question. Therefore, had Jones exercised diligence, he could have compelled the co-defendant to testify at any time during the trial. Also, Jones could have raised his constitutional question in a timely motion for new trial. Jones still had the right to seek habeas corpus relief when all of the facts could be more fully developed than they were developed in his motion for new trial.

For the reasons stated, appellant’s motion for rehearing is granted, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

DISSENTING OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

The majority holds that appellant was denied his constitutional right to the testimony of co-defendant Totty and reverses.

Totty was acquitted subsequent to appellant’s conviction and prior to his motion for new trial. Appellant alleged in the motion that at the time of his trial he was deprived of Totty’s testimony because Totty would have asserted his privilege against self-incrimination and refuse to testify.

At the hearing on the motion for new trial, it was established that appellant’s attorney had requested that Totty testify at appellant’s trial. Although Totty’s attorney testified that he advised appellant’s attorney that Totty would assert his privilege at appellant’s trial, Totty himself never asserted the privilege nor indicated he would refuse to testify.

It should not have to be explained to the majority that the privilege against self-incrimination is personal to the witness and can be asserted only by him. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951), rehearing denied 341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348; Sharp v. United States, 410 F.2d 969 (5th Cir. 1969); United States v. Goodwin, 470 F.2d 893 (5th Cir. 1972), cert. denied 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691; Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). Not even the witness’ attorney may claim the privilege for him. United States v. Moore, 485 F.2d 1165 (5th Cir. 1973); Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778 (Tex.Cr.App.1933); 8 Wigmore, Evidence, Section 2272 at 426 (McNaughton rev. 1961). Furthermore, the privilege may not be asserted in advance of questions actually propounded to the witness. It must be asserted with respect to particular questions, and in each instance the court must determine the propriety of the refusal to testify. United States v. Malnik, 489 F.2d 682 (5th Cir. 1974), cert. denied 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50; Farmer v. State, 491 S.W.2d 133 (Tex.Cr.App.1973). Thus, “a simple blanket declaration by the witness that he cannot testify for fear of self-incrimination will not suffice to invoke the privilege . . .; the mechanism of the Fifth Amendment is not automatic or self-winding.” United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir. 1975), cert. denied 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42. See also Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

In discussing Totty’s testimony in the instant case, the majority correctly states, “[a] defendant may not call as a witness a co-defendant who has indicated he will assert his privilege against self-incrimination under the Fifth Amendment of the United States Constitution. Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972); Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), cert. denied 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. McKinney, 453 F.2d 1221 (9th Cir. 1972).” However, a review of those authorities reveals that the co-defendant witness in each case properly invoked the privilege before the court determined that the co-defendant would not be compelled to testify. Rodriguez v. State, supra; Glasper v. State, supra; Victoria v. State, supra; United States v. Roberts, supra; United States v. McKinney, supra.

In the case at bar, therefore, appellant’s constitutional right to compulsory process was not in conflict with co-defendant Totty’s constitutional right against self-incrimination. The declarations made by Totty’s attorney concerning what Totty might or would have done if he had been called to testify at appellant’s trial did not present the trial court with a problem of constitutional dimensions. Even Totty was not the exclusive judge of his right to exercise the Fifth Amendment privilege; the judge was entitled to determine whether any refusal to answer particular questions appeared to be based upon the good faith of the witness and was justifiable under all of the circumstances. United States v. Gomez-Rojas, supra; Ex parte Butler, 522 S.W.2d 196 (Tex.1975).

The court never had the opportunity to make such a determination. Since Totty never invoked his Fifth Amendment privilege, appellant’s right to compulsory process was not opposed. Accordingly, the court correctly overruled appellant’s motion for new trial because it was filed after the time provided for filing such motions. See Article 40.05, V.A.C.C.P. Appellant’s motion for rehearing should be overruled.

ONION, P. J., joins in this dissent.

En Banc.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

The State’s motion for leave to file a motion for rehearing was granted and after reconsideration we overrule the State’s motion for rehearing, having decided that the matter was properly disposed of in the majority opinion by then Commissioner Dally delivered April 4, 1977.

When this case was originally heard and decided, this Court consisted of five Judges. At that time Judge Vollers was State’s Attorney and actively participated in the appeal of this case. Accordingly, pursuant to Article 5, Sec. 11, of the Texas Constitution, Judge Vollers certified his disqualification to the Honorable Dolph Briscoe, Governor of the State of Texas, who then appointed the Honorable Thomas M. Reavley, a former Associate Justice of the Supreme Court of Texas, to replace the Honorable Judge Vollers to hear and determine the State’s motion for rehearing in this appeal.

The State’s motion for rehearing is overruled.

ROBERTS, PHILLIPS and DALLY, JJ., and REAVLEY, Special Judge, join in this opinion.

REAVLEY, Special Judge,

concurring.

I join the four Judges in overruling the State’s motion for rehearing, but my decision is not based upon the Sixth Amendment to the United States Constitution. My decision is based upon the nature of the newly discovered evidence in this death case; it entitles appellant to a new trial.

The trial court overruled appellant’s motion for new trial because it was untimely filed. Article 40.05, V.A.C.C.P., provides that . . for good cause shown the time for filing or amending may be extended by the court . . . ” The sufficiency of the evidence of “good cause” is subject to review on appeal. Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); see Kilpatrick v. State, 85 Tex.Cr.R. 172, 211 S.W. 230 (1919); cf. Clopton v. State, 563 S.W.2d 930 (Tex.Cr.App.1978). Appellant filed his motion only four days after the testimony of Harrell Totty first became available. Good cause for late filing of the motion is established.

The newly acquired evidence of an acquitted co-defendant has been held to require a new trial in a number of cases. See Rozell v. State, 502 S.W.2d 16, 18 (footnote 1) (Tex.Cr.App.1973).

In Rucker v. State, 7 Tex.App. 549 (1880), the Court held that where two are jointly indicted, and one is tried and convicted, and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where it appears that the new evidence is legal, competent and material to the convicted defendant’s defense. The Rucker decision was followed in Gibbs v. State, 30 Tex.App. 581, 18 S.W. 88 (1891), and in Chumley v. State, 32 Tex.Cr.R. 255, 26 S.W. 406 (1893).

Rucker and Gibbs were followed by the Court in Sanders v. State, 52 Tex.Cr.R. 465, 107 S.W. 839 (1908). In that case the defendant was convicted of manslaughter upon an indictment charging her with murder. The defendant herself did not shoot the deceased, but the case was tried and submitted to the jury on the theory that she had conspired with her brother, who was alleged to have fired the fatal shot that resulted in the death of the deceased. The defendant was tried first and convicted. Her brother, indicted for the same offense, could not and did not testify. After the conviction of the defendant, her brother was tried and acquitted of the same offense as that for which his sister had been convicted. The defendant then made a motion for new trial, setting up the facts of the acquittal of her brother, that his testimony was and would be material to her defense, and that she was denied the benefit of his testimony by reason of the pendency of the indictment against him. The motion for new trial set out at great length the testimony to be given by the brother. The Court held there was no doubt as to the materiality of this new testimony and found reversible error in the trial court’s overruling of the motion for new trial.

The Court recited and followed the rule of the Rucker case:

There can be no doubt at this day as to the rule or the correctness of the rule in proper cases, as now established in this State, that where two are jointly indicted, and one is tried and convicted, and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where it appears that the new evidence is legal and competent and material to his defense. Sanders, 107 S.W. 840.

The Sanders Court also relied upon the Gibbs decision, noting that it involved a conviction for murder and subsequent reversal thereof on the sole ground that the defendant in that case had been denied the testimony of a co-defendant who had subsequently been acquitted. The Court stated that the Gibbs decision “. . .is precisely in point and authority for our action in this case.” Id.

In Sylvas v. State, 68 Tex.Cr.R. 117, 150 S.W. 906 (1912), the defendant and one Franco were indicted for murder. The defendant was convicted, and Franco was later tried and acquitted. After Franco’s acquittal, the defendant made a motion for new trial. An affidavit was attached to the motion showing that Franco testified upon his trial that he had killed the deceased and that the defendant had nothing to do with it. The Court noted that Franco could not testify at the time of the defendant’s trial, but that subsequent to the defendant’s conviction, Franco had been tried and acquitted. The Court then summarized the facts set out in Franco’s affidavit which was attached to the defendant’s motion for new trial. In substance, the affidavit recited that Franco would have testified positively that defendant had nothing to do with the alleged murder, that Franco killed the deceased in self-defense, and that his jury took his view and acquitted him. Applying Rucker, Gibbs and their progeny, the Court noted that Franco’s testimony was very material to the defendant and that the trial court should have awarded a new trial under the authority of those decisions.

In Barker v. State, 73 Tex.Cr.R. 229, 164 S.W. 383 (1914), the defendant was convicted of receiving and concealing stolen property. The State’s case was established by the testimony of a confessed accomplice. He testified that he and others burglarized a house, that the defendant knew of this burglary, and subsequently received the stolen goods. One of the accomplice’s cohorts, Decherd, was still in jail when the appellant was convicted on June 27. On July 1, after appellant’s conviction, Decherd was discharged from custody and relieved of prosecution. The defendant obtained his statement in writing and it contradicted the accomplice’s testimony on all points. This statement was appended to defendant’s motion for new trial. Following the rule laid down in the Rucker case, the Court held that the defendant was entitled to a new trial. At the time of the Barker decision, a motion for new trial had to be made within two days after conviction, but for good cause shown, the trial court could allow the motion to be made at any time before adjournment of the term at which the conviction was had. The question of timeliness was not discussed in the Barker decision, but it is apparent that the motion was untimely filed. The Court did state that the first opportunity the defendant had to avail himself of Decherd’s testimony was after the State had discharged him from custody; that Decherd’s testimony could not be used by the defendant until after he was discharged; that this occurred on the 1st of July, after defendant’s conviction on the 27th of June; and that the defendant procured Decherd’s affidavit and made the showing at the earliest practicable moment.

In Denning v. State, 120 Tex.Cr.R. 122, 48 S.W.2d 643 (1932), the defendant and another were indicted for the possession of intoxicating liquor for the purpose of sale. Some two weeks after the appellant’s conviction, his companion was tried and acquitted. Thereupon, the defendant filed a motion for new trial so that he might have the benefit of the testimony of his companion. In applying the rule of the Rucker case, the Court affirmed the judgment because the evidence expected from the acquitted individual was not contained in the record.

These eases were decided at the time when the Texas statute prevented the co-defendant from testifying on behalf of the accused. That statute was held to be an unconstitutional infringement upon the Sixth Amendment right of an accused to have compulsory process for obtaining witnesses in his favor in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). We do not have state action preventing Whitmore from obtaining the testimony of Totty at the original trial, but we do have newly available evidence that may change the conviction or punishment assessed Whitmore. I would not hold that Whitmore has a constitutional right to the testimony of Totty and to a new trial. I would hold that Whitmore’s motion does state grounds for a new trial under the general rules of newly discovered or available evidence.

In deciding the motion, and in treating the procedural flaws in the present record, the overriding consideration to me is that James E. Whitmore should not be sent to his death without his peers weighing the testimony of Harrell Totty — the man who was alleged to have killed Judy Rummel at Whitmore’s hiring — but who has been freed and absolved from all crime.

It would be my preference to abate this appeal and to allow the appellant an opportunity to put his motion for new trial in proper form before the trial court considers the motion on its merits. I would permit this liberality towards procedural requirements because this is a death case. The other Judges elect either to reject appellant’s appeal or to order a new trial. Given that choice, I join in ordering the new trial and overruling the State’s motion for rehearing.

VOLLERS, J., not participating.

DOUGLAS, Judge,

dissenting.

On appellant’s motion for rehearing the majority held that he was denied his constitutional right to the testimony of co-defendant Totty. Totty had been acquitted subsequent to appellant’s conviction but pri- or to his motion for new trial. Appellant alleged in the motion that at the time of his trial he was deprived of Totty’s testimony because Totty would have asserted his privilege against self-incrimination and refused to testify.

At the hearing on the motion for new trial, it was established that appellant’s attorney had requested that Totty testify at appellant’s trial. Although Totty’s attorney testified that he advised appellant’s attorney that Totty would assert his privilege at appellant’s trial, Totty himself never asserted the privilege nor indicated he would refuse to testify.

Appellant’s motion for new trial was filed after the time provided for filing such motions. See Article 40.05, V.A.C.C.P. The majority held that appellant was denied his right to compulsory process and that, under these circumstances, the Texas Code of Criminal Procedure provision governing the time for filing of motions for new trial must yield to appellant’s superior constitutional rights. The majority further held that the motion for new trial that alleged as grounds newly available testimony should have been granted.

The majority opinion, on rehearing, relied on Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972). In Washington, the Supreme Court of the United States was confronted with the question whether the Sixth Amendment right to have compulsory process for obtaining witnesses in his favor is applicable to the states through the Fourteenth Amendment, and whether that right was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime cannot be introduced as witnesses for each other.

Determining that the Sixth Amendment right to compulsory process is incorporated into the Due Process Clause of the Fourteenth Amendment, the Court wrote:

“The right to offer the testimony of witnesses, and to compel their attend-anee, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” 87 S.Ct. at 1923.

The Court held that the state statute in question violated the petitioner’s constitutional rights because it “arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” 87 S.Ct. at 1925. But the Court stressed that the statute was invalid because it arbitrarily prevented whole categories of defense witnesses from testifying on the basis of prior categories that presumed them unworthy of belief. The Court implied that it would have had greater difficulty in striking down the state rule if the accused accomplice would have been absolutely prohibited from testifying. It pointed out that the rule permitted the accomplice to be called by the prosecution to testify against the defendant, or to testify for the defendant after he was acquitted at his own trial. Common sense suggested that an accomplice often has a greater interest in lying in favor of the prosecution rather than against it, in order to obtain leniency from the prosecution.

Justice Harlan, in his concurring opinion, stated that that case did not implicate the right to compulsory process in any manner. In his view, the ease was one in which the State of Texas had recognized as relevant and competent the testimony of an accomplice witness but had arbitrarily barred its use by the defendant and that this violated the Due Process Clause.

In Braswell, the “rule” regarding the sequestration of witnesses who intended to testify was invoked. A defense witness violated the rule by remaining in the courtroom during the State’s case-in-chief. As a result the witness was not permitted to testify.

The United States District Court for the Southern District of Florida granted Bras-well relief in a habeas corpus proceeding. Upon the State’s appeal, the Court of Appeals noted that the excluded testimony was crucial to Braswell’s claim of self-defense (he had been convicted of aggravated assault). The Court stated that federal courts are reluctant to strike down valid state procedural rules, but held that application of the rule in question under these circumstances — where the excluded witness was Braswell’s sole corroborating witness— violated his constitutional right to compulsory process. In affirming the district court, the Court relied on Washington v. Texas, supra.

The instant case is readily distinguishable from the Washington and Braswell cases. In the latter two cases, the state procedural rules in question operated to exclude competent evidence to the detriment of the defendant. Those rules were thus in direct conflict with the defendants’ constitutional right to compulsory process.

In contrast, the rule governing the time for filing of motions for new trial in no manner pertains to the admission or exclusion of evidence or to the availability of witnesses. The State did not use this rule to arbitrarily prevent key defense witnesses from testifying, as occurred in Washington. Here, appellant chose not to call Totty at trial. The State did not prevent him from testifying.

Moreover, there was no conflict between the application of this procedural rule and appellant’s right to compulsory process. The only conflict possibly extant was between appellant’s Sixth and Fourteenth Amendment rights and Totty’s Fifth Amendment privilege against self-incrimination. Although such apparent conflict between the constitutional rights of the co-defendants was not resolved until after appellant’s trial, this did not implicate the Due Process Clause, particularly in light of the fact that there was no real conflict between such constitutional rights in the first place for reasons which follow.

The privilege against self-incrimination is personal to the witness and can be asserted only by him. See Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir. 1975). Not even the witness’ attorney may claim the privilege for him, as Totty’s attorney attempted to do here. United States v. Moore, 485 F.2d 1165 (5th Cir. 1973); Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778 (1933); 8 Wigmore, Evidence, Section 2272 at 426 (McNaughton rev. 1961). Furthermore, the privilege may not be asserted in advance of questions actually propounded to the witness. It must be asserted with respect to particular questions, and in each instance the court must determine the propriety of the refusal to testify. United States v. Malnik, 489 F.2d 682 (5th Cir. 1974); Farmer v. State, 491 S.W.2d 133 (Tex.Cr.App.1973). Thus, “a simple blanket declaration by the witness that he cannot testify for fear of self-incrimination will not suffice to invoke the privilege . . . ; the mechanism of the Fifth Amendment is not automatic or self-winding. . . . Once the Court satisfies itself that the claim is well-grounded as to the testimony desired, it may, in its discretion, decline to permit either party to place the witness on the stand for the purpose of eliciting a claim of privilege or to comment on this circumstance.” United States v. Gomez-Rojas, supra, at 1219, 1220.

In the instant ease, therefore, appellant’s constitutional right to compulsory process was not in conflict with Totty’s constitutional right against self-incrimination. The declarations made by Totty’s attorney concerning what Totty might have done or would have done if he had been called to testify presented no problem of constitutional dimensions. Even Totty was not the exclusive judge of his right to exercise the Fifth Amendment privilege; the judge was entitled to determine whether any refusal to answer particular questions appeared to be based upon the good faith of the witness and was justifiable under all of the circumstances. United States v. Gomez-Rojas, supra; Ex parte Butler, 522 S.W.2d 196 (Tex.1975).

The trial court never had the opportunity to make such a determination. Since Totty never invoked his Fifth Amendment privilege, appellant’s right to compulsory process was not opposed. Accordingly, the court correctly overruled appellant’s motion for new trial because it was filed after the time provided for filing such motions. See Article 40.05, supra. The rationale of the Washington and Braswell cases is not applicable under these circumstances.

Zerschausky v. Beto, 396 F.2d 356 (5th Cir. 1968), cert. denied 393 U.S. 1004, 89 S.Ct. 493, 21 L.Ed.2d 468 (1968), involved a proceeding on petition for writ of habeas corpus.

In April of 1963, Zerschausky had been convicted in a Texas district court for murder with malice and was sentenced to thirty years. Three potential witnesses at his trial had been charged as accessories and did not testify. Their charges were dropped shortly thereafter.

Zerschausky took no appeal from his conviction, but in 1966 he filed a petition for writ of habeas corpus in the same state district court which granted the writ returnable before this Court. We denied relief. Ex parte Zerschausky, 417 S.W.2d 279 (Tex.Cr.App.1967). Zerschausky then filed a petition for writ of habeas corpus in federal district court. The district court conducted a thorough factual investigation and thereafter handed down an extensive memorandum opinion denying relief. 274 F.Supp. 231 (Western District, Tex.1967).

On appeal, Zerschausky relied on Washington v. Texas, supra, which had held unconstitutional the Texas statutes denying defendants the right to call as witnesses anyone under indictment as accessories to the crime. The Court of Appeals determined that Washington was distinguishable and affirmed the district court.

The Court observed that no testimony by accessories was offered at Zerschausky’s trial. The testimony which would have been given by the accessories would have conflicted in several respects with Zerschausky’s theory of self-defense. The Court further observed that Zerschausky had waited to complain until charges had been dropped against the accessories and until the statute of limitations had run.

The Court reasoned from the foregoing that Zerschausky’s failure to call the accessories to the stand was the result of a voluntary and conscious decision in trial strategy, not mere obedience to the Texas statute. Thus he had waived his constitutional right to compulsory process. See also Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

Likewise, in the present case appellant never offered the testimony of Totty at the hearing on the motion for new trial. Hence, his constitutional right to compulsory process was waived. The facts in this case withdraw it from the reach of Washington v. Texas, supra.

Even assuming the rule governing filing of motions for new trial did conflict in some manner with appellant’s constitutional rights, it should be observed that not all state procedural rules must yield to an assertion of such rights. Otherwise, the decisions holding that failure to object to the violation of certain constitutional rights waives the error would be invalid. See, e. g., Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), which held that failure to object to Witherspoon error waives the error; this case could not stand if all procedural rules in conflict with the assertion of constitutional rights must fall. Likewise, the contemporaneous objection rule would fall in such circumstances with regard to errors of constitutional dimension.

The Court has promulgated a new rule which could result in chaos for our criminal justice system. The rule apparently can be used to invalidate any conviction where there is more than one defendant charged with the commission of an offense.

In the opinion on appellant’s motion for rehearing, the majority observed that an accused may not call as a witness a co-defendant who will assert his privilege against self-incrimination. The majority then determined that the only requirement the accused must meet in regard to obtaining such testimony at the time of his trial is to ask the co-defendant’s lawyer whether he (counsel) will advise the co-defendant to invoke the protection of the Fifth Amendment. This determination was erroneous for the reasons previously stated. The majority finally concluded that this Court will review a claim of newly discovered or newly available evidence as it stood at the time that appellant filed his motion for new trial based upon such evidence, even though the time for filing the motion had passed.

Under the majority’s reasoning, an accused tried and convicted of murder may file a motion for new trial (even after his appeal apparently) claiming newly available evidence if the co-defendant has been convicted and if such conviction has become final. At that point, if the co-defendant is willing to give favorable testimony for the accused, then he is entitled to a new trial. If the accused was then inclined to reciprocate and give favorable testimony for the convicted co-defendant, the co-defendant would probably also be entitled to a new trial. Both defendants would have to be reprosecuted and, thus, the State would be back where it started since neither co-defendant could be compelled to testify for the other. Such a situation would clearly hinder the administration of justice.

For the reasons stated above, the State’s motion for rehearing should be granted and the judgment affirmed.

ONION, P. J., and TOM G. DAVIS and W. C. DAVIS, JJ., join in this dissent.

VOLLERS, J., not participating.

      . See similar provision contained in Article 1257(d), V.A.P.C., 1925, as amended (Acts 1973, 63rd Leg., p. 1122, ch. 426 — effective June 14, 1973 until January 1, 1974 — effective date of present Penal Code.

      . Art. 711, V.A.C.C.P. (1925); Art. 82, V.A.P.C. (1925).

      . Art. 36.09, V.A.C.C.P. (1965).

      . Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

      . We note that Braswell involved a rule of evidence, while the case at bar concerns a valid statute governing the time for filing motions for new trial; however, neither can be applied so as to deprive an accused of a right secured by the Constitution.

      . For a few cases which discuss facts that have been held to show or not show harm because an accused was deprived of the testimony of a witness, see and compare, United States v. Curran, 465 F.2d 260 (7th Cir. 1972); Zerschausky v. Beto, 396 F.2d 356 (5th Cir. 1968) cert. denied 393 U.S. 1004, 89 S.Ct. 493, 21 L.Ed.2d 468; Ex parte Kirk, 478 S.W.2d 503 (Tex.Cr.App.1972); Ex parte Columbus, 489 S.W.2d 562 (Tex.Cr.App.1973); Ex parte Turner, 542 S.W.2d 187 (Tex.Cr.App.1976).


author: TOM G. DAVIS, Judge.

text:
    Wayne Edward ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 54915.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.

      Michael W. Hubbard, Iowa Park, court appointed on appeal, for appellant.
    Timothy D. Eyssen, Dist. Atty., and Roger E. Towery, Asst. Dist. Atty., Wichita Falls, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a habitation under V.T.C.A. Penal Code, Sec. 30.02(a)(1). After the jury returned a verdict of guilty, punishment was assessed by the court at fifteen years and one day.

In a single ground of error, the appellant challenges the sufficiency of the evidence to support his conviction. The State relied on circumstantial evidence for conviction and the court instructed the jury regarding the burden of proof in such cases. In light of appellant’s contention, we review the evidence in detail.

Robert English, a Wichita County deputy sheriff, testified that on October 27, 1975, he investigated a reported burglary at the W. P. Mitchell residence on Lower Charlie Road in Wichita County. As a result of that investigation, he arrested George Nixon, Jr., William Robinson, and Wayne Edward Robinson, the appellant. The three were arrested five or six miles east of the scene of the burglary in Clay County at approximately 11:00 a. m. the same day.

Johnnie Mitchell testified that she and her husband owned a home on Lower Charlie Road in Wichita County. On the evening of October 26,1975, between 10:00 and 11:00 p. m., she and her husband heard car doors open, followed by a knock on the door of their home. She heard a man at the door ask her husband for “James Robinson.” They knew of no one in the community by that name. She noted that it took the man “a good little while to leave” after he returned to his car.

On the morning of October 27, 1975, at about ten minutes before eight, Mitchell planned to leave for classes at Midwestern University but discovered that she had “a low tire.” She left her home and drove to her mother-in-law’s. At her mother-in-law’s, she checked the tire and added air. In order to get to school she retraced her route toward her home. As she approached the house, she noticed a car parked in the ditch in front of the house. The car was dark blue with a white top and it had a large dent on the driver’s door. She also noted that the car had “a big antenna in the center of the trunk.” She thought it was a Chevrolet or a Plymouth. She observed one black male sitting in the front seat “alJ scrunched down.” She thought this man had on a “dark green looking color coat.” She also observed another man approaching her house. She drove into the driveway and honked her horn several times. The man turned, started walking toward her and said, “Can I help you?” She answered, “Can I help you?” According to Mitchell, the man responded, “Can I help you ma’am? I’ve come to see James Robinson.” Mitchell identified the man in her yard from a photograph as George Nixon, Jr. She also stated categorically that because of his voice, she was sure it was Nixon who had knocked on her door the night before asking for James Robinson. After a brief discussion, Nixon got into the car and drove off very slowly. At this point she discovered that the front door of her home had been broken. She returned to her car, got in, and backed out, intending to follow Nixon’s car. She stated that she was screaming, “Help, help,” and honking her horn to try and attract attention. As she backed out of her driveway, she saw a third black male jump the fence surrounding her yard and drop into an irrigation ditch. According to Mitchell, the man “was running scrunched way down in the ditch where he thought maybe I couldn’t see him but I seen him and I was honking my horn and yelling ‘Help, help’ and honking my horn.” The man then came out of the irrigation ditch and onto the road. She testified that this man was wearing blue jeans and a light-colored shirt “with little pin stripes in it.” She chased him down the road in her car hollering at him. According to the witness, as he ran he turned and told her, “Shut up, shut up.” She apparently lost sight of the man on the road and returned to her mother-in-law’s house, where she notified the authorities. She also testified that she found the back door of her home open and the house had been ransacked. A portable color TV and several other items appeared to have been stacked near the front door. She could not identify the appellant as either the man she saw running from her house or the man sitting in the front seat of the blue car.

Mrs. Beatrice Mitchell, Johnnie Mitchell’s mother-in-law, testified that about 8:00 on the morning of October 27th, Johnnie Mitchell came to her house to get some air in a tire. She left and returned a few minutes later and told her mother-in-law of the break-in. They advised the authorities and Johnnie Mitchell departed to seek assistance from a neighbor. After her daughter-in-law departed, she got into her own car and drove to her daughter-in-law’s home. As she approached her daughter-in-law’s house on Lower Charlie Road, she sighted a car pulled off the road in front of her daughter-in-law’s home. The car was dark blue with a white top and it had a large antenna on the back. She was able to note the last three numbers of the license plate as being “426.” There was only one occupant in the car, a black male whom the witness could not identify. As she approached, the car sped off and passed her going in the opposite direction.

B. R. Harwell testified that shortly after 8:00 on October 27, 1975, he was at the ranch where he was employed as foreman approximately a quarter of a mile from the scene of the burglary. He observed a black man walking up the creek. The man told him he had car trouble at a nearby gravel pit and needed to get to town. The witness volunteered to give the man a ride to town with another employee named Davenport. The black man was identified from photographs as William Robinson.

Chester Lee Davenport, Jr., testified that he was employed on the G. T. Kimbell ranch in Wichita County on October 27,1975. At the foreman’s direction he gave a man identified from photographs as William Robinson a ride to town. He testified that Robinson was dressed in black work shoes and a pair of gray slacks. After Davenport and Robinson had gone a short distance down the road in the. pickup, the two met a second black male walking down the road “almost in front of the other Mitchell house.” Robinson asked Davenport to stop, saying that the man “was his partner or buddy.” They stopped and picked up the second man. Prior testimony of Johnnie Mitchell reflected that her mother-in-law, Mrs. Beatrice Mitchell, lived “just less than a mile from our house.” The man they picked up was positively identified as the appellant. Davenport dropped the two off in Wichita Falls.

Officer English was recalled, and testified as to the forcible entry into the Mitchell home. He also testified that in the course of his investigation he discovered a footprint in a freshly plowed garden near the rear of the Mitchell home. A check of the partial license number with the description of the car used by the burglars revealed that such a car was owned by George Nixon, Jr. After a conversation with Harwell, English sought to see if he could discover a disabled car near a gravel pit such as William Robinson had described to Harwell. As a result of the investigation, a car was discovered several miles away in Clay County adjacent to a gravel pit. There was evidence to tie the ownership of this car to George Nixon, Jr. A stake-out was established on the car in Clay County and later that morning George Nixon, Jr., William Robinson and the appellant were arrested when they attempted to come and remove the disabled vehicle. After his arrest, it was determined that the footprint found in the rear of the Mitchell home matched the pattern of the shoe worn by William Robinson at the time of his arrest.

Opal Adams testified that on Saturday, October 25,1975, she lived in a house trailer on Lower Charlie Road in Wichita County. On that day her husband was hospitalized and shared a hospital room with a black male named Terry King. King had a number of visitors, one of whom the witness was positive was the appellant. She thought but was not sure that George Nixon and William Robinson also visited King in the hospital on that day. The next day, Sunday, October 26, at about twenty minutes until ten in the evening, she heard someone “beat on the side of my trailer.” She turned on an outside light and she saw a man she identified as appellant. He asked for the man of the house, saying he had car trouble down the road. She refused to help and turned out the light. She became frightened and called a neighbor. On cross-examination, she identified William Robinson from his photograph rather than the appellant as the man who came to her trailer on the night of October 26th.

William Robinson testified that he was the brother of the appellant.

The appellant testified in his own behalf that on the morning of October 27, 1975, George Nixon drove him to work at Allison Van and Storage after picking up his brother, William Robinson. They were early, so they stopped for coffee. They discovered that it was apparently a holiday and “no one was going to show up for work.” Appellant’s brother explained to him that he had been using his father’s car the night before and it had stopped somewhere out in the country on Lower Charlie Road. The three drove to a gravel pit, where the car was located. According to the appellant, when they arrived on the scene, Nixon realized he didn’t have enough gas to pull the car back, so they let the appellant off and went looking for gas. According to the appellant, this was at approximately 8:30. Appellant then remembered that prior to arriving at the car they had dropped off William in the country so he could get a chain to pull the car. After 35 or 40 minutes waiting for his brother or Nixon to return, he started hiking back to town and was picked up by Davenport and his brother. Davenport dropped them off in town, where they eventually rendezvoused with Nixon and returned to the disabled car at the gravel pit. When they approached the car at the gravel pit, they were arrested. The appellant adamantly denied any connection with the burglary of the Mitchell residence.

The test for determining the sufficiency of the evidence to uphold a conviction in a circumstantial evidence case was stated in Indo v. State, Tex.Cr.App., 502 S.W.2d 166, as follows:

“This court has long adhered to the rule that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt cf the accused, and proof amounting to only a strong suspicion or merely probability is not sufficient. Flores v. State, 489 S.W.2d 901, 902 (Tex.Cr.App.1973), and cases therein cited.”

It is not necessary, however, that every fact point directly and independently to the guilt of the accused, and the cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Easley v. State, Tex.Cr.App., 564 S.W.2d 742; Flores v. State, Tex.Cr.App., 551 S.W.2d 364.

Every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481; Moore v. State, Tex.Cr.App., 532 S.W.2d 333.

By way of summation, the incriminating facts show that three black males were at the scene of the burglary around 8:00 a. m. on the day in question. Appellant was identified by the witness Davenport as being at a location less than a mile from the burglarized house that morning. Appellant was arrested in the company of George Nixon, Jr. and William Robinson about 11:00 a. m. the same morning. Nixon was identified as one of the three persons at the scene of the crime. William Robinson’s footprint matched a print found at the Mitchell residence.

Presence in the vicinity of a crime is not sufficient to sustain a conviction. Ysasaga v. State, 444 S.W.2d 305. We find that this factor, along with all of the other circumstances in this cause, amounts to nothing more than strong suspicion or a probability that appellant committed the crime charged. We conclude that the evidence does not exclude all other reasonable hypotheses except appellant’s guilt and find the evidence is insufficient to support the conviction.

In Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1, the United States Supreme Court by opinion of June 14, 1978, held that the “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient . . ..” In Greene v. Massey, - U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15, handed down the same day as the Burks decision, the Supreme Court held, “Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland [395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)], we are bound to apply the standard announced in Burks to the case now under review.”

Having found that reversal must result in the instant case since we concluded that the evidence is insufficient to support the conviction, the Supreme Court’s decisions in Burks v. United States, supra, and Greene v. Massey, supra, dictate that no further prosecution be had in this cause.

The judgment of conviction is set aside and is reformed to show an acquittal.