author: ODOM, Judge. DOUGLAS, Judge DOUGLAS, Judge.

text:
    Warren W. ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
    No. 51509.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Leave to File State’s Motion for Rehearing Denied Oct. 20, 1976.
    Chagra & Chagra, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and William J. Ellis, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of marihuana. Punishment was assessed at six years.

Initially, appellant challenges the sufficiency of the evidence. Second, he asserts the trial court erred in refusing his requested charge on circumstantial evidence.

Evidence heard on the motion to suppress reveals that at approximately 11:30 a. m. on October 7, 1970, Officer Gomez of the El Paso Police Department received information from a confidential informant that a shipment of marihuana loaded in four suitcases would shortly be taken out of El Paso by airplane. The airplane and its location were described.

Evidence received before the jury reveals that Officer Aguirre of the El Paso Police Department received a radio call on the morning of October 7, 1970, directing him to the Southwest Air Rangers area of the El Paso Airport. He arrived and commenced surveillance of the airplane approximately at noon. No one was present for the first forty minutes of observation. Appellant then arrived and went to the airplane. He began preparing the plane for service, walked to the Southwest Air Rangers building briefly, and then returned to the plane.

Ten minutes later a taxi arrived with Richard Watson and four suitcases. Watson and appellant each carried two suitcases to the plane and placed them in the cargo section. Both boarded and appellant started the engines. Officer Aguirre and other officers on the scene surrounded the plane with their vehicles. Aguirre jumped on the wing on the pilot’s side and ordered appellant to stop the engines, which he did. The officers then boarded the plane and removed the four suitcases, which were found to contain marihuana.

The interior of the plane had two seats forward, one for the pilot, and the area behind these seats had been adapted for carrying cargo. Four “roaches” (marihuana cigarette butts) were found in closed ashtrays located in the cargo area, and an officer testified that he knew the smell of marihuana and could smell the marihuana that was in the suitcases when he boarded the plane.

Appellant testified that he was a flying subcontractor for a company that handled explosives, and that he was staying in El Paso briefly for refueling and instrument repairs. He was en route to California without a cargo to have other repairs performed and to pick up a cargo to carry back to the east coast. He testified he met Watson in El Paso and agreed to provide him passage on his plane to California at rates in the usual range for private charters. He also testified that his plane was left unlocked in the location where it was parked, so the repairman could get in when he was not there.

The State had filed two motions for continuance, alleging in each that Watson was not then available and:

“The testimony of this witness is believed by the Applicant to be material for the State, as shown by the fact that it is expected said witness will establish the following facts: That the defendant WARREN ARMSTRONG knew that the suitcases involved in the above cause contained a substance believed to be marijuana, and therefore will link the defendant with the marijuana establishing his knowledge and control thereof.”

The record also reflects that Watson was present and available to testify for the State but that he was not called to testify. The State presented no evidence inconsistent with appellant’s testimony.

In sum, the State’s evidence against appellant consisted of this: (1) appellant was seen carrying two of Watson’s suitcases from the taxi to the plane; (2) the trained officer could smell the marihuana in the suitcases in the plane; (3) four “roaches” were found in closed ashtrays in the cargo area of the plane.

The strength of the first item is diminished by uncontradicted evidence that the suitcases did not appear unusual or reveal their contents. The strength of the second is diminished by several factors. The officer testified that he could recognize the smell of marihuana because “I have been working narcotics for fifteen years and I can pretty well detect the smell of marihuana,” whereas appellant was not shown to know the smell of marihuana and may not be presumed to have such expert knowledge. Finally, the third item is diminished in strength by the unrefuted testimony that others had access to the plane during appellant’s absence and the State’s evidence that there was no smell of burning marihuana All and that the ashtrays were closed, were weakened by the State’s failure to call Watson. Cf. Ysasaga v. State, Tex.Cr. App., 444 S.W.2d 305.

In Powell v. State, Tex.Cr.App., 502 S.W.2d 705, it was held:

“When an accused is charged with the unlawful possession of a narcotic or dangerous drug, two elements must be proven: (1) that he exercised care, control, and management over the contraband; and (2) that he knew the object he possessed was contraband, [citations omitted] The evidence must affirmatively link the accused to the narcotics in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the narcotic’s existence and of its whereabouts.”

With respect to the suitcases, the evidence is insufficient to show that appellant knew they contained marihuana. The mere fact that he assisted his paying passenger in carrying the suitcases to the airplane is not sufficient to support a finding of knowledge any more than it would have been sufficient to support such a finding with respect to the taxi driver who assisted in placing the suitcases in the taxi. The State was bound to show independent circumstances linking the accused to the marihuana, and it showed none. By contrast, in Powell v. State, supra, the following was shown:

“ . . . (1) three people were seen at the Powell ranch where the airplane and the pickup met; (2) the three people appeared to be unloading bundles from the plane into the back of the pickup; (3) one person took off in the airplane and two people left in the pickup and were later found in it when it was stopped on the highway; (4) appellant was in the pickup after it was stopped; (5) a small quantity of marihuana was found on appellant’s person; (6) there was testimony that appellant appeared to be under the influence of narcotics at the time of arrest. ...”

With respect to the roaches found inside the airplane, we note that the ashtrays containing the roaches were located in the common cargo area of the plane, and that there was undisputed testimony that others, including one or more repairmen, had had access to the airplane for several days immediately preceding the day of appellant’s arrest, and at times when appellant was not present. Hence, appellant had not been in exclusive possession of the airplane.

In Higgins v. State, Tex.Cr.App., 515 S.W.2d 268, 270, we said:

“Where an accused is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the narcotic and control over it unless there are additional independent facts and circumstances which link the accused to the narcotic.”

Accord, Hernandez v. State, Tex.Cr.App., 517 S.W.2d 782.

The State showed no additional circumstances linking the accused to the contraband in the closed ashtrays. The evidence was insufficient with respect to either knowledge or control of the roaches. We are unable to find any case holding the evidence sufficient upon so sparse a record as this. For the sort of additional linking circumstances that may be sufficient to support a conviction, see Brooks v. State, Tex.Cr.App., 529 S.W.2d 535; Granfil v. State, Tex.Cr.App., 525 S.W.2d 518; Williams v. State, Tex.Cr.App., 524 S.W.2d 705; and Curtis v. State, Tex.Cr.App., 519 S.W.2d 883.

For similar reasons, the trial court also erred in refusing the requested circumstantial evidence charge. In Ramos v. State, 478 S.W.2d 102, 105, this Court stated:

“The distinction between circumstantial evidence and direct evidence is that the latter applies directly to the ultimate fact to be proven, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proven.”

' In the instant case, as in Ramos v. State, supra, no witness saw appellant exercise control over the contraband in such a manner that knowledge of the marihuana was shown. The contraband in the ashtrays was not in a place where appellant had sole access to it. Cf. Harris v. State, Tex.Cr. App., 486 S.W.2d 88. Therefore, there was no direct evidence that appellant knowingly possessed any of the marihuana. Instead, there were only the minor facts that appellant carried two suitcases containing marihuana and that marihuana roaches were found in closed ashtrays inside his airplane. Therefore, the trial court erred in refusing the requested charge on circumstantial evidence. Draper v. State, Tex.Cr.App., 513 S.W.2d 563; Selman v. State, Tex.Cr.App., 505 S.W.2d 255; Crawford v. State, Tex.Cr. App., 502 S.W.2d 768; Ramos v. State, supra.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction on the grounds that the evidence is insufficient to support the conviction.

Officer Juan F. Aguirre testified that four suitcases were carried by Watson and appellant from the taxicab to the plane. When the cab driver offered to help carry the bags appellant said that Watson did not need any help. Officer A1 Castro testified that the seats were removed from the passenger area of the plane. In the two ashtrays behind the pilot seat there were three marihuana cigarette butts or “roaches”. In the right ashtray behind the co-pilot seat there was another “roach”. Officer Saman-iego testified that in three of the suitcases there were sixteen bricks of marihuana and fourteen in the fourth suitcase for a total of sixty-two bricks. The total weight was 127 pounds. The officers testified that they could smell the marihuana in the plane.

Appellant testified that he lived in Maryland and was a flying subcontractor for a company that handled only explosives; that he was a mechanic and a rated pilot, and that he owned the Aztec plane where the marihuana was found. Prior to the date in question he had never been in El Paso. He landed in El Paso some two days before his arrest to refuel. He had no intent of landing there originally. As he landed he was told by the operator that a part of his radar reception equipment was not operating properly and because there would be heavy traffic where he was going he wanted it repaired. He related that he ordered fuel and talked to a man about repairing his equipment. He asked about a Holiday Inn in El Paso. He went to a Holiday Inn and checked the prices and thought he would not stay there but decided he would eat at the Holiday Inn. While he was waiting for a hostess, he and Richard Watson, whom he had never seen before, engaged in conversation and decided to eat together. When appellant told Watson that he was a pilot, Watson told him that he wanted to go to San Francisco and inquired as to the cost of flying in a privately owned aircraft like his. Watson made an agreement to pay appellant approximately four times the commercial rate because Watson stated that he could see the scenery better from a private plane. He agreed to call Watson the next day. Appellant then went to some motel; he did not remember which one but it had a less expensive rate than the Holiday Inn. Appellant related that while he was getting the plane ready on the date in question a taxi pulled up with Watson. Watson had four suitcases and appellant helped carry them to the aircraft. He related that he only carried cargo and that he had never sat anywhere in that area of the plane and had not ridden in the plane except as a pilot or in the front part of the plane; that he had never carried passengers in the back area. He related that Watson never told him that there was marihuana in the suitcases; that he did not smell anything unusual in the suitcases and did not have the faintest idea how the roaches got in the ashtrays. On cross-examination he testified that he was flying from Maryland to El Monte, California; that he came down that far south for better weather, and that he usually went by Pueblo, Colorado or Albuquerque, New Mexico.

The evidence shows that appellant owned the plane; that he did not normally carry passengers; that there were marihuana cigarette butts in the ashtrays of the plane; that there was a strong odor of marihuana coming from the suitcases; and that the suitcases contained a total of 127 pounds of marihuana. Appellant helped carry them and informed the cab driver that they did not need any help. He just happened to meet Watson at a motel dining room and have dinner and Watson wanted to fly in a private plane and look at the scenery and was willing to pay several times the price of a commercial flight.

The evidence should be construed in the light most favorable to the State. Here the appellant owned the plane with the cigarette butts in it; he was on the plane; he was in possession of the plane and in possession of the marihuana. And with all the facts and circumstances in this case the evidence in the opinion of this writer is sufficient to support the conviction. The jury was not bound to believe that appellant knew nothing about the marihuana and cigarette butts in the ashtrays and was not bound to believe that he did not smell marihuana. The jury was not bound to believe any of his testimony. They heard him testify to his story about his flight and why he was there which was off the direct route from Maryland to the Los Angeles area of California. The evidence is sufficient to support the conviction.

A fallacy in the majority opinion is that the State must disprove testimony by a defendant. In most cases a crime is usually committed with as few witnesses present as possible. The majority states that the evidence of presence of the cigarette butts in the plane was “diminished in strength by the unrefuted testimony that others had access to the plane during appellant’s absence.” Is the majority discussing his absence from the plane in Maryland or any other place he might have flown? This reasoning is like one disclaiming marihuana in his automobile because others had access to it. This is a new burden placed on the State to disprove something that is within the knowledge of a defendant — an impossible burden.

From the majority opinion it appears practically useless to charge anyone with possession of marihuana in an aeroplane or other vehicle when he claims others had access to it.

The jury heard the evidence. It heard appellant testify to an unusual set of coincidences and it is requiring the State to disprove such testimony.

The majority is taking something from the proof because the State did not call Watson to the stand. The evidence shows that Watson possessed 127 pounds of marihuana when he arrived in the taxicab. He also exercised control over it and jointly possessed it with appellant. It is reasonable that most people are hesitant to incriminate themselves before their case has been tried. Would the majority require a showing that the witness was called and that he claimed his Fifth Amendment right or have deductions taken from the evidence? The failure to call Watson does not disprove any of the evidence.

The judgment should be affirmed.

DISSENTING OPINION ON DENYING LEAVE TO FILE STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The majority overrules the State’s motion for leave to file motion for rehearing without written opinion. The motion filed by the Honorable Steve Simmons, District Attorney, and his Assistant, William J. Ellis, of El Paso County, is adopted as a dissent by this writer.

I

“In its analysis of the cause at bar, this honorable Court summed up the case against Appellant as consisting of three points, and then discussed how the strength of each point had been ‘diminished.’ ‘When the sufficiency of the evidence is challenged, this Court is required to view the evidence in the light most favorable to the verdict.’ Resendez v. State, 495 S.W.2d 934, 935 (Tex.Crim.App.1973); Pogue v. State, 474 S.W.2d 492, 494 (Tex.Crim.App.1971). A discussion of how the evidence favorable to the verdict has been ‘diminished’ is not consistent with this rule. See also Jones v. State, 442 S.W.2d 698 (Tex.Crim.App.1969), cert. den. 397 U.S. 958, 90 S.Ct. 967, 25 L.Ed.2d 143; White v. State, 478 S.W.2d 506 (Tex.Crim.App.1972); Cleaver v. State, 498 S.W.2d 945 (Tex.Crim.App.1973); Provost v. State, 514 S.W.2d 269 (Tex.Crim.App. 1974). The rule in the 5th Circuit is not inconsistent with the rule heretofore followed by this honorable Court:

“ ‘A judgment of conviction, which is attacked on the ground of insufficient evidence, will be sustained on appeal if the evidence taken most favorably for the Government supports the verdict. . The Government is entitled to the benefit of all inferences sustaining the conviction that may be reasonably drawn from the evidence.’ United States v. Davis, 443 F.2d 560 (5th Cir. 1971), cert. den. 404 U.S. 945, 92 S.Ct. 298, 30 L.Ed.2d 260. (Emphasis Supplied).

Rua v. United States, 321 F.2d 140 (5th Cir. 1963), cert. den. 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 738.

“Not only does the above discussed rule obtain in Texas, it obtains in a virile form. In Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974) this honorable Court held:

“ ‘In reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict. In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused.’ (Emphasis supplied).

In view of the evidence as developed, infra, there is evidence showing the guilt of Appellant herein, and this Court’s opinion in the above styled and numbered cause would appear to emasculate the rule in Banks, supra, et al.

II

“Another long-standing and well-settled rule seemingly eroded by this honorable Court’s opinion in the case at bar is the rule that the province of the fact finder, in this case a jury, will not be invaded in retrospect on appeal. The State is led to this conclusion by virtue of this honorable Court’s recitation of Appellant’s exculpatory testimony concerning his meeting Watson and the fact that the airplane was left unlocked at the airport. The jury was not obliged, for example, to believe that the plane was unlocked. If this was the case, there would be no merit in this Court’s assumption that others would have had access to the aircraft.

“In Easley v. State, 478 S.W.2d 539, 540 (Tex.Crim.App.1972), the issue was whether or not the appellant had possessed a narcotic drug. The testimony of an agent inculpated him, while the appellant testified in an exculpatory fashion, denying that he had possessed anything:

“ ‘The jury had before it two opposing versions of the events on the day in question and it chose to accept the testimony of Rangel and reject that of appellant. It is the province of the jury to pass on the credibility of the witnesses and the weight to be given their testimony.’ (Emphasis supplied).

Likewise, in Esquivel v. State, 506 S.W.2d 613, 615 (Tex.Crim.App.1974), this Court have an expanded but not novel version of the holding in Easley, supra:

“ ‘The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. . The jury may believe some witnesses and refuse to believe others and it may accept portions of the testimony of a witness and reject other portions.’

For example the jury could accept Appellant’s testimony that Watson had hired Appellant to fly him to California, but it could have rejected the testimony that Watson’s purpose in doing so was so that he could better see the country.

“As in the case at bar, in Hines v. State, 495 S.W.2d 252 (Tex.Crim.App.1973), appellant’s defense was one of mere presence and that he was merely in pursuance of some lawful and innocent design. This Court held at page 255 of Hines, ‘The jury did not choose to believe appellant, and it is the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ The effect of this honorable Court’s holding in the case at bar, on the contrary, is to require the State to disprove Appellant’s testimony. This court has previously held that the fact finder’s ability to believe and disbelieve is not affected by an appellant’s offer of exculpatory evidence. Morris v. State, 411 S.W.2d 730 (Tex.Crim.App.1967). In Banks v. State, supra, appellant’s attorney, during cross-examination, managed to cast doubt on an eye-witness’ identification of appellant, however this Court held at page 595:

“ ‘. . . it is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portion thereof as it sees fit.’

Consequently, we have no way of knowing what portions of the Appellant’s testimony the jury believed and what portions it did not, but it is obvious from its verdict that it disbelieved a large part of it. ‘The conflict in the testimony was resolved by the jury who was the trier of facts, the judge of the credibility of the witnesses and weight to be given the testimony.’ Solis v. State, 492 S.W.2d 561 (Tex.Crim.App.1973). In Rodriguez [Rodriquez] v. State, [544 S.W.2d 382 (Tex.Cr.App.)], No. 50,659, handed down on the same day as the opinion in the case at bar, this honorable Court correctly recognized its appellate function:

“ ‘The issue before this Court is not the truth of Appellant’s testimony; that is for the jury.
“ ‘Whether the events actually happened that way in this case was a question for the jury. .
“ ‘We reiterate that the truth of appellant’s testimony is not at issue here and we express no opinion on who was telling the truth.’

Further in Hernandez v. State, [538 S.W.2d 127 (Tex.Cr.App.)], No. 51,952, the trial court was the fact finder. On the same date as its holding in Rodriguez [Rodriquez], supra, this Court held:

“ ‘The defense testimony offered by the appellant was before the court for its consideration. The Court, as trier of the facts, is the sole judge of the credibility of witnesses and the weight to be given their testimony and may accept or reject all or any part of any witness’ testimony.’

Ill

“Realizing the affirmative link which the State must show between appellant and the contraband, the State will review prior decisions of this honorable Court which have demonstrated the link and then compare them with the facts in the case at bar.

“In Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App.1972):

“ ‘Appellant’s third contention [was] that the evidence [was] insufficient to show that appellant knew that the substance found in the pipe and in the cigarette butts was contraband. We call attention to . the smell emanating from within the automobile which was identified as marihuana by the arresting officers.’

See also Aldridge v. State, 482 S.W.2d 171 (Tex.Crim.App.1972). Interestingly, in neither Ross or Aldridge, supra, contrary to this honorable Court’s opinion in the case at bar, was it required or held that an appellant be shown to know the smell of marihuana, or that the smell of marihuana would be known only to an expert.

“In Buntion v. State, 476 S.W.2d 317 (Tex.Crim.App.1972), where marihuana cigarette butts were found in an automobile being driven by appellant, but in which a passenger was also riding, this Court found the requisite affirmative link at page 319:

“ ‘It is undisputed that appellant was driving the ear. Appellant testified she was the owner of the car. We deem the evidence sufficient to support the conviction. The unlawful possession of marihuana need not be exclusive to reflect a violation of the law.’

“In Hernandez, supra, the court found an affirmative link under facts far less connecting in nature than any cited cases as well as the case at bar, and more exculpatory than the instant case: the car in which the marihuana was found did not belong to appellant, the marihuana was not in a part of the car to which appellant had access while it was moving, the car had roaches and ashes in an ashtray on the dash, appellant testified denying all knowledge of the marihuana, and appellant’s brother testified saying the marihuana was his not appellant’s, and that appellant had no knowledge of the marihuana. Although Hernandez involved a revocation of probation, this Court held that the burden to show an affirmative link is the same whether the main proceeding be a revocation or a trial on the merits. In Hernandez, the appellant had pointed out the absence of certain links that have been recognized in the past as sufficient (e. g. no evidence of an odor of marihuana in the car). This honorable Court responded to Appellant’s contention:

“However, the absence of the above facts and circumstances is not evidence of appellant’s innocence to be weighed against evidence tending to connect appellant to the marihuana. The issue is whether there is sufficient evidence linking the appellant to the marihuana to support the reasonable reference that he was knowingly in possession of marihuana.”

The Court noted that with marihuana on the dash, it strained credulity to suggest that the driver (appellant) could not see it — in spite of the fact that there was no showing that appellant was familiar with marihuana so as to recognize it on sight.

“At bare mínimums, the case at bar contains two factors linking Appellant to the marihuana: cigarette butts in the ashtray (Buntion, supra), and the smell of marihuana emanating from within the plane which was his and which he was piloting (Ross and Aldridge, supra). The credulity of the State is strained at the thought that Appellant could not smell 127 pounds of marihuana in the same compartment of his airplane in which he was riding. Further, the evidence is far stronger than Hernandez wherein appellant not only denied knowledge but where another witness, against his own penal interest exonerated appellant. Just as the judge was the trier of facts in Hernandez, so was the jury in the case at bar. Consequently, when the evidence is viewed in the light most favorable to support the verdict and when the fact-finding authority of the jury is left unfettered, the evidence is sufficient to support the verdict.

“The fact that the State did not call the unconvicted accomplice, Watson, was, but ought not to have been, charged against it. Under the facts of the case at bar there could be no legal presumption that the testimony would have been exculpatory as to Appellant. Roberts v. State, 489 S.W.2d 893 (Tex.Crim.App.1972). Likewise, in view of Watson’s 5th Amendment rights, there could be no practical presumption that his testimony would exculpate Appellant. Having proven a prima facie case, Appellee was under no duty to call Watson.

IV

“This honorable Court also held, in the case at bar, that the trial court erred in not giving a requested circumstantial evidence charge on knowing possession. The State’s research has revealed that only when the fact of possession must be shown circumstantially is such a charge required. In all events, the jury was affirmatively charged that it must find, beyond a reasonable doubt, that Appellant’s possession was intentional and knowing.

“When the main fact is proved by direct testimony, as it was in the case at bar, and only the question of a defendant’s intent is to be inferred from the circumstances, a charge on circumstantial evidence is not required. Littleton v. State, 419 S.W.2d 355 (Tex.Crim.App.1967); cert. den. 389 U.S. 887, 88 S.Ct. 115, 19 L.Ed.2d 188 (1967); reh. den. 389 U.S. 998, 88 S.Ct. 484, 19 L.Ed.2d 507 (1967). Knowledge is no more nor less a subjective state of mind than intent, and if no circumstantial evidence charge is required as to one, it is difficult to see the basis for requiring it as to the other. This is especially true when it is remembered that the jury was charged that, before it could convict, it must believe that Appellant’s possession was knowing. Must a charge on knowledge now always be given?

“WHEREFORE, premises considered, the State prays that its Motion for Rehearing be granted and the judgment in the above styled and numbered cause affirmed.”

The motion should be granted and the conviction should be affirmed.

      . Moreover, the officer agreed that it would have been more difficult to detect the smell allegedly emanating from the suitcases when they were in the “open air”, which they were when appellant carried them. The taxi driver who drove Watson and the suitcases to the airport testified that he had helped Watson place the suitcases in the taxi, and that he never detected any unusual smell.

      . Officer Gomez also testified outside the hearing of the jury during the hearing on the motion to suppress that the confidential informant told him that the Mexico suppliers told the informant that they, the suppliers, had talked to the pilot. This was hearsay upon hearsay and without probative value. No witnesses present at the alleged conversation were called to testify nor was an explanation given for their absence.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Randy Lee GARDNER, Appellant, v. The STATE of Texas, Appellee.
    No. 52764.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Weldon Holcomb, Tyler, for appellant.
    A. D. Clark, III, Dist. Atty., L. Michael Thompson, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an out of timé appeal in which the appellant seeks review of an order revoking his probation for the offense of forgery, with the sentence being assessed at three (3) years in the penitentiary.

Appellant initially entered a plea of guilty to the offense of forgery and was placed on five-year probation on April 10, 1970. On June 30, 1972, the State filed its first application to revoke probation, with an amended application being submitted on December 19, 1974. The subsequent motion to revoke alleged that appellant failed to report to the probation officer, failed to pay his court costs and supervision fees and that he failed to report his change of address or employment to the probation office.

Appellant’s initial ground of error on appeal complains in a general fashion that the trial court “abused its discretion in revoking probation” for the reason that the State failed to show that appellant had the capability of paying his supervisory fees and court costs; however, appellant’s brief concedes and admits that the evidence is sufficient to show that appellant failed to report to his probation officer as directed by the court and that he failed to advise his probation officer of his change of address.

During the probation revocation hearing, appellant testified and admitted that he failed to make any further reports to his probation officer after May of 1972. In addition, appellant admitted that he left Tyler, without permission of the probation office or the court, and that he did not notify either the court or the probation office of his change of address, employment or residence. In view of appellant’s admissions and the other evidence introduced by the State, the evidence is overwhelming to show at least two violations of the terms and conditions of probation; therefore, the trial court did not abuse its discretion. See Wright v. State, 523 S.W.2d 704 (Tex.Cr. App.1975). In any event, without detailing the extent of the evidence concerning appellant’s ability to pay his costs and supervisory fees, we are of the opinion that the evidence is sufficient for the trial court to revoke for appellant’s willful failure to pay court costs and other fees. See Guana v. State, 501 S.W.2d 116 (Tex.Cr.App.1973). Compare Denton v. State, 511 S.W.2d 311 (Tex.Cr.App.1974).

Ground of error number one is overruled.

Appellant also makes the complaint that he should be discharged from further service of this sentence inasmuch as he has been in continuous custody in the Smith County jail on this revocation since December 18, 1974, and that when his time credits for this sentence are computed, including consideration for “good time” credit as a “state approved trusty” pursuant to the provisions of Article 61841, V.A.C.S., he would have sufficient time credits for his immediate discharge.

The trial court conducted a hearing on appellant’s “Motion for Release and Discharge” and entered findings of fact and conclusions of law holding that only the officials of the Texas Department of Corrections may award good time credit under the provisions of Article 61841, supra.

We are in complete agreement with the trial court’s findings of fact and conclusions of law.. The appellant in this case is seeking to completely evade service of any portion of his felony penitentiary sentence in the Texas Department of Corrections, as he apparently seeks to serve this sentence in its entirety in the Smith County Jail by obtaining credit for good time from the Sheriff of Smith County for his good conduct behavior while incarcerated in that county jail.

In response to this argument, we initially note that Article 61841, supra, is the exclusive statutory provision for the awarding of commutation time credits for good conduct to those persons committed to the Texas Department of Corrections for felony convictions in this state. See Ex parte Weaver, 537 S.W.2d 252 (Tex.Cr.App. 1976). A county sheriff has the authority to award commutation time credits to only those persons convicted and committed to serve sentences in his county jail. See Article 5118a, V.A.C.S.

It is now well settled that criminal defendants are entitled to consideration for good time credits for time spent in county jails pending their direct appeals to this Court. See Pruett v. State of Texas, 468 F.2d 51, aff’d en banc, 470 F.2d 1182 (5th Cir. 1973), aff’d in 414 U.S. 802, 94 S.Ct. 118, 38 L.Ed.2d 39 (1973); Art. 42.03, Sec. 4, Y.A.C.C.P. In the en banc opinion of the United States Court of Appeals for the 5th Circuit, it was specifically pointed out that neither Article' 5118a, supra, nor Article 61841, supra, was unconstitutional per se, but that their enforcement together denied criminal defendants due process.

In response to the United States Supreme Court’s affirmance of the Court of Appeals’ en banc decision, the Texas Legislature made certain statutory changes in the Texas Code of Criminal Procedure in order to come into compliance with that decision. Under these new provisions, any criminal defendant who appeals his felony conviction of more than 15 years is automatically transferred to the Texas Department of Corrections pending appeal. See Article 42.09, Sec. 4, V.A.C.C.P. If a defendant receives 15 years or less, he may be released on bail, but if he cannot make bail, he has a choice of waiting for the disposition of his appeal either in the county jail or in the Texas Department of Corrections. See Article 42.09, Sec. 5, supra; Ex parte Norvell, 528 S.W.2d 129 (Tex.Cr.App.1975).

If a defendant appeals his conviction and is not released on bail, whether he is in the county jail or the Texas Department of Corrections, he is entitled to credit for all calendar time spent in custody. See Article 42.03, Secs. 2-3, Y.A.C.C.P. See also Ex parte Griffith, 457 S.W.2d 60 (Tex.Cr.App. 1970). In addition, Texas law now provides that inmates incarcerated in county jails pending their appeals are entitled to consideration for good time credits for good behavior. See Article 42.03, Sec. 4, supra; Ex parte Jasper, 538 S.W.2d 782 (Tex.Cr.App. 1976); Ex parte Bates, 538 S.W.2d 790 (Tex. Cr.App.1976).

Under the present statutory scheme for awarding time credits in Texas, all of the inequities found in the prior scheme in Pruett v. State of Texas, supra, have been alleviated. Under present Texas law, all persons appealing their convictions for felonies would be entitled to consideration for good time credits spent in custody pending their appeals. It is critical to note that the source of any good time credit awarded, however, must come from the Texas Department of Corrections, in accordance with the court’s judgment and sentence. See Article 42.09, Sec. 1, supra. It is readily apparent, therefore, that all persons committed to the Texas Department of Corrections under their felony sentences must therefore look to that institution for the proper award of good time credit.

While the Texas Department of Corrections is authorized to award good time credits through Article 61841, supra, it must be noted that the award of good time credit is not mandatory but, rather, is dependent upon an inmate’s good conduct during the service of his sentence, whether it be in the county jail or in the state prison system. See Article 42.03, Sec. 4, supra; Article 61841, supra; Ex parte Enriquez, 490 S.W.2d 546 (Tex.Cr.App.1973); Ex parte Bennett, 508 S.W.2d 646 (Tex.Cr.App.1974); Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr. App.1976); Ex parte Iglehart, 535 S.W.2d 185 (Tex.Cr.App.1976); Ex parte Jasper, supra; Ex parte Bates, supra.

The record in the case at bar shows that appellant has maintained a “trusty” status while in the Smith County Jail; therefore, assuming continued good conduct, there is little doubt that appellant will be entitled to some commutation credit under Article 61847, supra. However, until such time as the Texas Department of Corrections receives actual custody of appellant and processes his record, it is impossible for the officials of the state prison system to make a final determination of commutation time credits.

In the case at bar, appellant has chosen to remain in the county jail pending the outcome of his appeal, and, of course, this is his legal right. See Article 42.09, Sec. 5, supra. However, it is appellant’s position that he is absolutely entitled to - additional good time credits as a “state approved trusty” just as if he were serving his sentence in the Texas Department of Corrections. Since the Texas Department of Corrections has not yet had an opportunity to investigate the facts and circumstances of this inmate’s ease, there can be no particular award of a certain commutation time classification as yet. Neither the Smith County Sheriff, the trial court, nor this Court is able to “second guess” the ultimate decision of the officials of the Texas Department of Corrections. See Ex parte Enriquez, supra.

There is no evidence before this Court that the officials of the Texas Department of Corrections would automatically classify appellant as a “state approved trusty” upon his commitment to that institution or, even if they did, whether they would apply his trusteeship status in a retroactive manner as to appellant’s entire service of this sentence in the county jail. This is a decision that will have to be made by the Texas Department of Corrections at the proper time when appellant is committed to that institution under the mandate of this Court.

Upon final mandate of this Court, the Sheriff of Smith County will be required to inform the Texas Department of Corrections as to appellant’s conduct while in jail pending this appeal, and appellant will thusly be given whatever credits he may be entitled to under the provisions of Article 42.03, Sec. 4, supra, and Article 61841, supra. It is clear that the statutory changes made by the Texas Legislature completely implement the constitutional standards and procedural requirements required in Pruett v. State of Texas, supra.

Were we to accede to appellant’s argument in this case and permit the Smith County Sheriff to determine appellant’s status as a “state approved trusty’’ and allow appellant to discharge his felony sentence while in the county jail, we would have effectively negated the Texas Department of Corrections’ jurisdiction to incarcerate convicted felons in this state. This we shall not do. It is to be noted that the sentence of the trial court in this case reads as follows:

“Randy Lee Gardner ... be delivered by the sheriff of Smith County, Texas, immediately to the director of corrections of the Texas Department of Corrections, or other persons legally authorized to receive such convicts, and the said Randy Lee Gardner shall be confined in said penitentiary for a term of not less than two nor more than three years in accordance with the provisions of the law governing the penitentiaries and the Texas Department of Corrections." (Emphasis added).

In view of this felony judgment and sentence, appellant must be committed to the Texas Department of Corrections to serve the remainder of his sentence, not to the Smith County Jail. See Article 42.09, Sec. 1, supra. Upon issuance of the mandate of affirmance of this conviction by this Court, the provisions of the trial court’s sentence shall be carried out immediately. See State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974).

ju(jgment ⅛ affirmed,

Opinion approved by the Court.

ROBERTS, J. concurs in the results.

      . The overwhelming majority of felony sentences result in the commitment to the Texas Department of Corrections; however, there are certain exceptions, such as a conviction for the offense of felony driving while intoxicated, which carries the possibility of incarceration in the county jail or in the Texas Department of Corrections. See Article 67017-2, V.A.C.S.
      It is therefore obvious that those persons convicted of felony drunk driving and committed to the Texas Department of Corrections are thus entitled to “good time” credit under Article 61847, supra, and those persons convicted under this statute and assessed county jail time would be given “good time” credit under Article 5118a, supra.

      . Under the provisions of Article 61847, supra, the Texas Department of Corrections is authorized to classify inmates into four separate classes for the awarding of commutation time credits. The classification as “state approved trusty” is the most favorable status, during which an inmate receives 30 days of credit for every 30 days of calendar time served, assuming good conduct.
      The other three classifications for commutation time credit award 20, 10 or zero days credit for every 30 days of calendar time served, depending upon the circumstances of each case.


author: GUPTON, Justice.

text:
    J. D. WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 51541.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.

      James S. Moss, Mesquite, for appellant.

      Wiley L. Cheatham, Dist. Atty., Cuero, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Justice.

This is an appeal from a conviction under our former penal code for the offense of theft of a check of over the value of $50.00. Punishment was assessed at nine years in the Texas Department of Corrections.

The indictment charged in part in the first count that appellant and Pete Alimón, acting together, did then and there in the County of Jackson, State of Texas, “unlawfully and fraudulently take one check of the value of over $50.00, the same being the corporeal personal property of Belle Hamilton from the possession of the same Belle Hamilton”, without her consent, “with the intent to deprive” her “of the value thereof and with intent to appropriate same to the use and benefit of them, the said J. D. Williams and Pete Alimón.” The State elected to go to trial on the first count only. Appellant was tried separately.

The learned trial judge properly charged the jury on the law applicable to the case, including the definitions of “theft”, “fraudulent taking”, “theft by false pretext”, “principals”, “accomplice witness” and “corroborating evidence”.

The appellant did not testify in his own behalf and rested his case without any testimony being offered by appellant.

Appellant contends in two grounds of error that the evidence is insufficient to sustain his conviction because there was no showing that at the time of taking he possessed the criminal intent to deprive the complaining witness of the value of the check, and further contends that venue was in Tarrant County rather than Jackson County. We do not agree.

The evidence shows that Pete Alimón, Norman Cowart and appellant contrived a scheme to have Pete Alimón obtain an appointment to sell insurance through First Continental Life and Accident Insurance Company of Houston, in order that Cowart and appellant could unlawfully solicit, obtain and submit applications for insurance through Alimón, as an agent, which was also prohibited by law.

All these men went to Houston to make the arrangements; then Cowart and appellant started contacting prospects and obtaining money from them by making false and incorrect representations. The officials of First Continental Life and Accident Insurance Company of Houston did not give either of them permission to sell insurance for their company.

Both Cowart and appellant contacted the 75 year old complaining witness, Belle Hamilton, of Lolita, in Jackson County. Both represented to Belle Hamilton that they were authorized insurance agents for First Continental Life and Accident Insurance Company, which was untrue. They also represented to her that their alleged insurance company had purchased and taken over the Tidelands Life Insurance Company of Corpus Christi, with whom Belle Hamilton had a policy on which the premium was paid up and in force at the time. Cowart and appellant falsely represented to Belle Hamilton that her annual premium on her “Tidelands” policy was due, all of which was false and untrue.

Belle Hamilton signed and delivered to them a check for $382.78, dated October 13, 1973, payable to the First Continental Agency. She also signed a blank application for a new insurance policy. The victim testified that she had no knowledge that she was signing papers to apply for a new insurance policy, and she did not agree to buy a new policy with any company. Because of this action of appellant and Co-wart, her policy with “Tidelands” Life Insurance Company lapsed for non-payment. Belle Hamilton believed the representations of appellant and Cowart and relied on same and testified she would not have signed and delivered her check to them if she had known that it was for a “new” policy with any company. After leaving Belle Hamilton’s house, both Cowart and appellant returned to Fort Worth, and gave the money and application to Alimón.

The officials of First Continental Life and Accident Insurance Company of Houston became concerned about appellant, Co-wart and Alimón and cancelled Allmon’s appointment without granting appellant or Cowart authority to sell for their company. Appellant, Alimón and Cowart deposited the money of Belle Hamilton and others in Allmon’s special account, which they opened as “First Continental Agency, Pete Ali-món”, in the Security State Bank in Fort Worth. After the First Continental Life and Accident Insurance Company refused to let appellant, Cowart and Alimón represent their company, appellant, Cowart and Alimón forged an application for insurance from Belle Hamilton and others to American Insurance Company in Brownwood, with whom Alimón was associated. They retained the agent’s commissions and submitted the forged application of Belle Hamilton and.others to the insurance company in Brownwood without the knowledge and consent of the victims.

The testimony of accomplice witness Norman Cowart was that he and appellant intended and did at the time of the taking of Belle Hamilton’s check on October 11, 1973, in the amount of $382.78 at her home in Lolita, Jackson County, make false and fraudulent representations to her in order to induce her to deliver the check to them.

He testified:

“A She was told that she carried her insurance through our agency and that she had a premium coming due and that the First Continental Agency had taken over, or bought out Tidelands Life Insurance Company and it was a combination of Southwest Service Life and Tidelands that we were setting her up on a better policy and that it would be with First Continental Agency. And—
Q All right. Now at this time, were either you or this defendant, J. D. Williams, licensed to sell insurance?
A No, sir.
Q All right. All right. And, let me ask you this. In truth and in fact, was she carrying her insurance through your agency, meaning you and this defendant, J. D. Williams, in truth and in fact?
A No. No, sir.
Q And, did she have any premium due like you told her?
A No, sir.
Q And had the First Continental Insurance Company bought out Tidelands like it was represented to this woman?
A No, sir.
Q Now, then, who made these representations to this woman, you or this defendant, or both of you?
A Both of us.
Q Okay. By both of you, do you mean you and this defendant, J. D. Williams?
A Yes, sir.
Q Did you two know that these representations that you made to this woman were false when you made them?
A Yes, sir.”

The evidence further showed that the victim, Belle Hamilton, 75 years of age, relied on and believed the false and fraudulent representations of appellant and Co-wart and that she signed and delivered her check to them in Jackson County, Texas on October 11, 1973. It was about February 28, 1974, when she realized that she had been a victim of appellant and Norman Cowart.

Article 1413, Y.A.P.C., provides:

“The taking must be wrongful so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

To form the basis of the offense of theft by false pretext, the false pretext must be the inducing cause which moves the injured party to surrender the property in question. If the injured party knows, or by the exercise of ordinary prudence should know, at the time he parts with possession of the property that the pretext is in fact false, the offense cannot arise. Kinder v. State, 477 S.W.2d 584 (Tex.Cr.App.)

The evidence further shows that during 1973 Norman Cowart and appellant, J. D. Williams, were soliciting and selling insurance without license or appointments as required by law; therefore, neither was an authorized agent for any insurance company. Appellant had his appointment to sell insurance withdrawn and cancelled in early October 1973.

The complaining witness testified that two men, the appellant and Norman Co-wart, came in her house located in Lolita on October 11, 1973, and both of them talked to her about her insurance with Tidelands Insurance Company, which was due; that they represented the First Continental Insurance Company had bought Tidelands Company out and they came to collect the premium; that she did not agree with them to buy a new policy of insurance with any company from them and that she gave them a check in the amount of $382.78 for only the premium they represented to her was then due. She further testified that she did not sign or give the appellant or anyone else permission to sign her name twice to an application for an insurance policy with American Insurance Company and denied that the two signatures thereon were hers. She testified that she wrote a letter to American Insurance Company of Texas on February 28,1974 (State’s Exhibit 13, which was read before the jury), advising them that she had learned on this date “that your company did not buy out the company I had insurance with, Tidelands Life Insurance . . . The men told me they bought out the other company which is not true, I made a check out to Continental Insurance Company for $382.78, check No. 1148, but I got a policy from American Insurance Company of Brownwood, costing $391.80. I did not want this policy. I want my money back, at once if I do not receive my money back I’ll go the State Board of Insurance in Austin. I do not want to do this, but I will if I have to.”

Belle Hamilton further testified as follows:

“Q (BY MR. CHEATHAM): Now then, after writing this letter to the American Insurance Company of Texas, Mrs. Hamilton, did you ever get a refund?
A No sir.
Q Was this letter an attempt to get your money back?
A Ya.
Q Now then, Mr[s] Hamilton, let me ask you this. At the time that you gave this defendant and the other man your check for $382.78, at that time if you had known that they were not authorized to sell insurance for any company in Texas, would you have given them your check?
A No sir.
Q If you had known at that — well, let me ask this. If you had known at the time that Tidelands Insurance Company had not sold out to First Continental, would you have given them your check for this amount of money?
* * * * * *
A No sir.
Q If you had known at that time that your insurance on your Tidelands policy was not due, your premium was not due, would you have given these two men, this defendant and the other man, your check?
A No sir.
Q For $382.78?
A No sir.
Q Did I ask you whether or not you ever gave permission to them to sign your name on this other application to American Insurance?
A No sir; I did not.
Q Did you ever agree in any way to take out a new policy with American Insurance Company of Texas?
A No sir, I didn’t.
Q Did you ever agree to take out a new insurance policy with the First Continental Insurance Company of Texas?
A No, I didn’t.
Q Did you ever agree to take out a new insurance policy with the First Continental Insurance Company?
A No sir. No sir.”

In evidence is a letter from J. E. Dobbs, President of American Insurance of Texas (Brownwood) dated March 20, 1974, addressed to Mr. Pete Alimón, D.S.R. Box 123, Weatherford, Texas, relative to various transactions between them and includes the following:

“On March 5, 1974 you were written a letter in regards to Belle Hamilton. We asked you to satisfy this complaint or refund the commissions you received for writing this case so that we could refund it. This has not been taken care of. Mr. Alimón, we would recommend that all of the above mentioned complaints be taken care of immediately. Otherwise we will consider every piece of correspondence our Company has been receiving in regards to misrepresentation made by you be turned over to the Insurance Department for its investigation. You are also receiving a copy of a letter in regards to the Peays application. I might advise that an investigation is being made by the District Attorney’s Office in San Angelo in regards to this case. May I hear from you before it is too late to get you involved more deeply than you are already.”

An employee of the Ramada Inn, 8700 South Main, Houston, Clarence Webster, made an open court identification of appellant when he, Cowart and Alimón registered there on October 9, 1973. Appellant gave his residence address in Fort Worth, 2532 Ridgemore, Number 19, his black Lincoln Continental license number FGG 492 and his name as J. D. Williams for two persons and a rollaway bed for the third person. Clifford Page, an employee of the Texas Highway Department identified J. D. Williams as the owner of the black Lincoln Continental from its license number as of October 11, 1973. Appellant and Norman Cowart were identified by the manager of the Christopher Inn, Victoria, as registered in Room 219, for two persons, on October 10-11,' 1973. Norman Cowart registered and paid the bill by American Express Card. His address was listed at 3820 Grady, Fort Worth.

The Executive Vice President of the Citizens State Bank, Ganado, T. J. Howell, testified that the September-October 1973 bank ledger sheet of Belle Hamilton showed the clearance of her check No. 1148, in the amount of $382.78, dated October 13, 1973 (changed by appellant and Cowart from October 11). The withdrawal of $382.78 from her account depleted and lessened her account in that sum.

Charles Gary Hill of the agency department of the First Continental Life and Accident Insurance Company in Houston testified as to Pete Allmon’s and appellant’s transactions with his insurance company on October 11, 1973, and also about his investigation at the Security Bank in Fort Worth of the First Continental Agency and later the Pete Alimón Agency accounts. All of his direct testimony fully verifies and corroborates the testimony of accomplice witness Cowart and additional witnesses J. E. Dobbs, then President of the American Life Insurance of Brownwood (November 1973), and Naomi Lawrence, head banker of the Security Bank of Fort Worth and custodian of the bank records.

Appellant’s contention that the evidence is insufficient to support the conviction for the reason that there was no showing at the time of the taking that appellant possessed criminal intent to deprive the complaining witness Hamilton of the value of the check alleged to have been fraudulently taken is without merit. Accomplice witness Cowart testified at length and in detail showing the intent of appellant and Cowart at the time of the taking that they, both appellant and accomplice witness, possessed criminal intent to deprive the victim, Belle Hamilton, of the value of the check alleged to have been fraudulently taken on October 11, 1973.

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

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

The test of sufficiency of corroboration of the testimony of an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the accused with the commission of the offense. If there is such evidence, the corroboration is sufficient, otherwise, it is not. Cherb v. State, 472 S.W.2d 273, page 279 (Tex.Cr.App.). Odom v. State, 438 S.W.2d 912 (Tex.Cr.App.), and other cases cited therein.

Applying this test to the instant case, we first eliminated the testimony of Norman Cowart, the accomplice. We are left with testimony of the complaining witness, Belle Hamilton, the testimony of employee of the Ramada Inn showing appellant’s presence in Houston, the testimony of employee of the Texas Highway Department identifying the appellant’s car by license plates and its presence with him in Houston, the testimony of the manager of the Christopher Inn in Victoria identifying and placing appellant in Victoria, the testimony of the banker in Ganado that the victim’s check was cashed, the testimony of the representative of First Continental Life and Accident Insurance Company of Houston about appellant’s participation in the attempted transaction with his company and further about his investigation of the two accounts in the Security State Bank of Fort Worth and participation of appellant therewith, the testimony of the President of the American Insurance Company about participation of Pete Alimón and appellant with his company, and the testimony of the head banker of the Security State Bank of Fort Worth about appellant’s connection with the accounts in the name of the First Continental Agency and the Pete Alimón Agency. All of this testimony traces the check No. 1148 of the complaining witness in the amount of $382.78 fraudulently taken from her and proof of appropriations by appellant, with the exception of the testimony of the employee of the Ramada Inn, the employee of the Texas Highway Department and the manager of the Christopher Inn, which shows the plan of appellant along with Pete Alimón and the accomplice witness to illegally solicit and sell insurance. The testimony of the complaining witness not only shows that the offense was committed, but is also evidence which tends to connect the appellant with its commission. All the other testimony connects the appellant with the crime in the instant case, without that of the accomplice.

In Rogers v. State, 461 S.W.2d 339, 402, this Court said:

“The corroborating testimony need not be sufficient in itself to establish the guilt of the accused, for if this were true, the testimony of the accomplice would be of no value. The evidence is sufficient if it tends to connect the defendant with the offense.”

See Cherb v. State, supra.

The evidence is sufficient to corroborate the testimony of the accomplice. This ground of error is overruled.

Appellant’s contention in ground of error three that the evidence is insufficient to sustain his conviction for the reason the proof shows the offense occurred in Tarrant County and not in Jackson County is misplaced. The offense occurred in Jackson County on October 11,1973, at the time the complaining witness gave the check because of the intended fraudulent and false representations made by appellant and accomplice witness Cowart.

Art. 13.12, V.A.C.C.P., in effect at the time of the offense, provided:

“Where property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the county where he took the property or in any other county through or into which he may have carried it.”

The testimony is undisputed that the cheek was obtained by appellant and Co-wart by false pretext and with intent to deprive the victim owner of the value thereof and to appropriate the property to their own use and benefit arid the same was so appropriated and completed the offense of theft. Further, the false pretext was the inducing cause which moved the injured party to surrender the check. Venue was proper in Jackson County. See and compare Davenport v. State, 127 Tex.Cr. 552, 78 S.W.2d 605. Ground of error three is overruled.

The appellant contends that the trial court committed error in violation of Gaskin v. State, 172 Tex.Cr. 7, 353 S.W.2d 467, by denying the appellant access to the use of a tape recorded statement of the accomplice witness Cowart after he had completed his direct examination upon the trial of this cause.

The record reflects that Cowart entered a plea of guilty on or about November 1, 1974, to two indictments charging felony theft involving fraudulent insurance sales in DeWitt County. Seven to ten days later, Cowart agreed to testify in any other cases where other persons had also committed crimes in the insurance business of which he had knowledge. Cowart then spent approximately 18 hours, over a period of a week, answering questions about his knowledge of other transactions. A recording of the questions and answers was made by the district attorney. It was these statements on tape that were sought by appellant after the witness Cowart completed his direct testimony in the trial of the instant case. When this request was made, the district attorney assured the court that he was present during the recording and that the tape recordings did not have anything to do with the instant case on trial. He assured the court that the transaction involved in this case came to his attention some months after the tape recordings were made.

Curtis Woodard, a United States Postal Inspector, was present during the making of the tape recordings in question, and his testimony on this issue was that the tapes made no reference to the “Belle Hamilton” complaint or the instant transaction. Following this testimony, the witness Cowart also stated that he did not tell the district attorney about the “Belle Hamilton case” until after the first of the year (1975) and the tapes were made in 1974. Mr. Woodard also testified that the investigation against appellant in this cause was triggered by a telephone conversation on January 28, 1975, between the witness and Mr. Bill Davis, Chairman of the Board of Insurance of Texas. The trial court then concluded that these tape recordings contained nothing pertaining to the instant transaction and denied appellant access to them.

Appellant contends that the tapes in question come within the provisions of the Gaskin Rule. Gaskin v. State, supra, and subsequent decisions merely make available to appellant prior statements of witnesses pertaining to the matters about which they testified, for the purpose of cross examination and possible impeachment, where demand is made after the witness has testified on direct examination. Of necessity, in order to be used for cross examination or impeachment, it would be necessary that the statement pertain to the matter about which the witness is testifying. Obviously, the appellant would not be allowed to cross examine from the statement or impeach by using the statement as to immaterial matters or immaterial issues where no pertinence is shown to the testimony of the witness in the instant case.

In this cause the tapes in question have now been made available to appellant by order of this Court. Ogle v. State, Tex.Cr.App. (No. 50,159, delivered November 5, 1975, Opinion on Rehearing). He has now filed a supplemental brief suggesting to the Court that he would have found the information in the tapes useful in the conduct of his defense. However, appellant has failed to point to any statement in the tapes that pertains to the instant transaction. He has failed to point out to the Court that at any point this witness made statements on the tapes pertaining to the transaction about which he testified in the course of this trial. He has not suggested to the Court how any of the statements made by the witness in these tapes could have been legitimately used in the cross examination of this witness in the trial of this case. The fact that a witness has made statements concerning other transactions does not make those statements automatically available to trial counsel under the Gaskin Rule. Our examination of this record leads us to the conclusion that the trial judge did not commit error in denying appellant access to these tape recordings at the conclusion of the direct testimony of the witness Cowart. This ground of error is overruled.

The judgment is affirmed.

      . V.A.T.S., Insurance Code, Art. 21.14(4).

      . This statute now appears as Art. 13.08, V.A. C.C.P., and provides:
      “Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same.”


author: DALLY, Commissioner.

text:
    Cecil Charles EVANS, Appellant, v. The STATE of Texas, Appellee.
    No. 51741.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.

      George R. Sehilter, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Gerard W. Guerinot, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of burglary; punishment, enhanced by proof of a prior felony conviction under the provision of V.T.C.A. Penal Code, Sec. 12.42(b), was assessed by the jury at imprisonment for 25 years.

The appellant contends the trial court erred in refusing to grant his motion for mistrial after a State’s witness allegedly brought an extraneous offense before the jury. He also contends that the court erred in admitting a confession in evidence and that he was improperly sentenced.

During the prosecutor’s examination of State’s witness Detective Sabino Monte-mayor of the Baytown Police Department, the following exchange was had:

“[PROSECUTOR]:
“Q. Nineteen.
“I draw your attention back to about the 15th day of April, 1974, and I will ask you if on that occasion you had an opportunity to have a talk or interview with a Cecil Charles Evans?
“A. I did.
“Q. And if he were in the courtroom today, could you identify him?
“A. Yes, I can.
“Q. And how did you and Mr. Evans happen to get together on that occasion?
“A. It was through investigation concerning the alleged forgeries of some checks.
“[DEFENSE ATTORNEY]: Objection.
“THE COURT: Sustained.
“[DEFENSE ATTORNEY]: That is an extraneous offense. I would ask the jury be instructed to disregard that statement.
“THE COURT: Ladies and gentlemen of the jury: You will disregard the last statement of the witness.
“[DEFENSE ATTORNEY]: Due to the fact that the jury has heard the testimony of the officer, I think irreparable damage has been done. The Defendant will move for a mistrial at this time.
“THE COURT: Be overruled.”

Appellant contends Detective Montemayor’s reference to an investigation was evidence of an extraneous offense committed by appellant.

It has' been stated that any error in the admission of improper testimony is cured by the trial court’s withdrawal of the evidence and its instruction to the jury to disregard “except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.” Bolden v. State, 504 S.W.2d 418 (Tex.Cr.App.1974); Allen v. State, 513 S.W.2d 556 (Tex.Cr.App.1974); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972); Nunley v. State, 467 S.W.2d 452 (Tex.Cr.App.1971); White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969). It has been held that testimony referring to or implying extraneous offenses allegedly committed by the defendant is rendered harmless by the trial court’s instruction to disregard. Hernandez v. State, 530 S.W.2d 563 (Tex.Cr.App.1975); Tristan v. State, 510 S.W.2d 329 (Tex.Cr.App.1974); Chatman v. State, 509 S.W.2d 868 (Tex.Cr.App.1974); Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Allen v. State, supra.

On direct examination of the State’s reputation witness in Boykin v. State, 504 S.W.2d 855 (Tex.Cr.App.1974), the question “And when did you first get to know him?” was followed by the response, “I was robbed by him.” It was there held the error was cured when the defendant’s objection to the evidence was sustained and the jury instructed to disregard it.

The testimony of the witness in the case at bar cannot be said to be more damaging than that ruled curable in Boykin v. State, supra. In view of the trial court’s prompt sustaining of counsel’s objection and instruction to the jury, the error, if any, was cured. This ground of error is overruled.

Appellant next complains of the admission in evidence of his written confession. He contends that neither statutory requirements nor those of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were met.

A hearing outside the presence of the jury was held to determine the admissibility of the confession. The record includes findings of fact and conclusions of law filed by the trial court holding the confession to have been freely and voluntarily given in accordance with all constitutional and statutory requirements and properly admissible in evidence.

The record reflects that on April 15,1974, Detective Montemayor interrogated the appellant in connection with an investigation concerning alleged forged checks. Prior to the interrogation Montemayor took appellant before a magistrate who properly advised him of his rights. Appellant, along with two other men, was questioned three or four times in connection with the alleged forged checks. The other two men eventually admitted their involvement in the burglary upon which the present prosecution was predicated; they implicated the appellant in their statements. On April 16th Montemayor again advised appellant of his rights and thereafter appellant confessed to taking part in the burglary. The confession was reduced to writing and, properly witnessed, was signed by appellant.

Appellant was properly advised of his rights by a magistrate shortly aftér he was taken into custody and by Detective Montemayor before the confession was given. Appellant contends that the warnings administered by the magistrate applied only to his original arrest on suspicion of involvement in a forgery scheme and that he should have again been taken before a magistrate prior to being allowed to confess to the burglary. His contention is without merit. Article 15.17, V.A.C.C.P., was satisfied when appellant was initially taken before a magistrate. A warning by either a magistrate or the person taking the statement is sufficient to satisfy the requirements of Article 38.22, V.A.C.C.P.; it was not incumbent upon Detective Montemayor to take appellant before a magistrate again prior to taking the statement. See Davis v. State, 499 S.W.2d 303, 308 (Tex.Cr.App.1973).

We hold appellant was adequately apprised of his constitutional and statutory rights in accordance with the requirements of Miranda v. Arizona, supra, and Articles 15.17 and 38.22, V.A.C.C.P., and his confession was therefore properly admitted in evidence. This ground of error is overruled.

Appellant also contends he was improperly sentenced. We agree. The record reflects that appellant timely filed a motion electing to have the jury assess punishment. After the jury returned a verdict of guilty, the appellant, with the consent of the prosecutor, changed his election and requested that the court assess punishment. The prosecutor recommended a punishment of imprisonment for twelve years; the court assessed punishment at twelve years imprisonment and the appellant waived his ten days to file a motion for new trial. The judge stated that he would not take up the matter of the enhancement allegation, and proceeded instead to formally sentence appellant on the unenhanced burglary charge to serve not less than two nor more than twelve years.

The court then advised the appellant of his right to appeal and when appellant affirmatively indicated that he wished to appeal, the following ensued:

“THE DEFENDANT: Yes, sir. We do intend to appeal the case.
“THE COURT: You would like to appeal?
“THE DEFENDANT: Yes, sir.
“THE COURT: There is no need and you want to appeal — you feel you have not had a fair trial — looks like we will set it aside and continue with our jury.
“What do you have in mind? Do you have in mind that you just want to play games?
“THE DEFENDANT: No, sir.
“THE COURT: Well, what are you doing? You are telling this Court that you want the Court to assess punishment, you have already been found guilty of burglary in this case, I don’t understand what it is now that you withdraw it from the jury for what purpose? If you are not satisfied, then this is what you seem to be saying.
“All right. If he wants to — just put him back in the lockup.”

The court then set aside the judgment and sentence of 12 years and proceeded to bring back the jury for a hearing on punishment. After appellant pleaded “true” to the enhancement count in the indictment, the jury assessed appellant’s punishment at imprisonment for 25 years.

The trial court did not have authority to hold a punishment hearing before the jury after the appellant had elected to have punishment assessed by the court. Article 37.-07, Sec. 2(b), V.A.C.C.P., provides:

“(b) Except as provided in Article 37.-071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.” (Emphasis added.)

After the jury returned a verdict of guilty, the record clearly reflects that the appellant, with the consent of the attorney for the State, changed his initial election of jury assessment of punishment, choosing instead to have the court assess punishment. See Benson v. State, 496 S.W.2d 68 (Tex.Cr.App.1973). Article 37.07, V.A.C.C.P., gives to the defendant the right to determine whether the court or the jury will assess his punishment; the trial court must abide by the defendant’s timely election.

The proceedings had before the jury on the issue of punishment were void and of no effect. The original judgment and sentence based upon the court’s assessment of punishment at imprisonment for 12 years are ordered reinstated. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1968). Also, see and compare Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Cleaveland v. State, 507 S.W.2d 769 (Tex.Cr.App.1974); Colburn v. State, 501 S.W.2d 680 (Tex.Cr.App.1973); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971).

The judgment as ordered reinstated is affirmed.

Opinion approved by the Court.


author: KEITH, Commissioner.

text:
    William David BROWNE, Appellant, v. The STATE of Texas, Appellee.
    No. 52441.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.
    Douglas A. Yancy, Houston (John P. Mustachio, Houston, of counsel), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Ned B. Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

Appellant was charged by indictment with the offense of possessing a dangerous drug, namely, lysergic acid diethylamide. The offense was alleged to have been committed on January 16, 1973. Appellant pleaded not guilty but the jury found him to be guilty. He timely requested that his punishment be determined by the trial court; and, upon proof that he had been twice previously convicted of felonies less than capital, his punishment was assessed at confinement for life.

PART I

In the fourth ground of error, appellant challenges the sufficiency of the evidence to support the conviction. On the date in question, Houston Police Officer Bankston, accompanied by another officer, was at a Texaco service station on the Gulf Freeway in Houston when the attendant informed him that there were some people in a car over by one of the gasoline pumps who had used a stolen credit card a week earlier in making a purchase. Based upon this information (which was not presented to the jury), the officers approached the vehicle and saw appellant sitting under the steering wheel of the car. The officers ordered the occupants to get out of the car; and, when appellant got out, Bankston saw a “chrome pistol on the floorboard underneath the seat on the driver’s side” of the car. Appellant was then arrested and the officers searched the car finding a milk carton in a clear plastic bag inside of a brown paper bag. The carton “had a bunch of pink pills in it” which the officer believed to be LSD.

The chain of custody having been properly established, Chemist Zotter testified that he made a chemical examination of a random sampling of the pills (of which there were approximately twenty-four hundred) and that each contained LSD.

Appellant did not testify nor did he offer any affirmative defense. Having examined the evidence, we find it sufficient to support the conviction and ground four is overruled.

In ground of error number six, appellant complains of the action of the trial court in overruling his motion to quash one of the enhancement paragraphs in the indictment, alleging that he was duly and legally convicted of the offense of “Unlawfully Purchasing a Narcotic Drug, in violation of Title 26, U.S.Code, Section 4704” in the United States District Court for the Southern District of Texas, sitting at Houston. We set out in the margin the pertinent portion of his motion to quash which was overruled by the trial court.

However, upon appeal, appellant does not argue that the conviction may not be used for the reasons stated in his motion to quash; instead, he invokes the doctrine set out in Ex parte Lopez, 491 S.W.2d 420 (Tex.Cr.App.1973), which followed Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). We confine our discussion to the argument advanced upon appeal and note at the outset that appellant pleaded guilty to the federal indictment charging the unlawful purchase of a narcotic drug in violation of Title 26, U.S.Code, Section 4704. Thus, appellant’s reliance upon Lopez is misplaced.

Our case is controlled by this court’s opinion in Rodriquez v. State, 495 S.W.2d 952, 954 (Tex.Cr.App.1973), where Judge Jackson (also the author of Lopez, supra) noted that “the court’s decision in Leary did not invalidate the statute as a whole”, and the plea of guilty rendered Leary inapposite. So it is in the case at bar; and ground of error number six is overruled.

Finding no error, the judgment is affirmed.

Approved by the Court.

      . “That the State is using as its first enhancement count a 1960 Federal conviction wherein the defendant was convicted of ‘the unlawful buying of heroin’. The State must proceed under Article 63 in the enhancement counts in order to make the Habitual Criminal Statute effective.
      “The defendant would show the Court that the federal conviction of the unlawful buying of heroin is not a proper enhancement count in that the State does not have a like or a counterpart statute similar to or the same as the federal statute, consequently it cannot be used for an enhancement count. . . . ”

      . Four other grounds of error are discussed in what is designated as Part II of this opinion. It contains no new questions of law. It is a matter of record but will not be published, cited, or accepted as authority. See footnote 2 in Jones v. State, 520 S.W.2d 755, 759 (Tex.Cr. App.1975).


text:
    Fred Washington COLMAN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52448, 52449 and 52450.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.

      Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Stewart Robinson, Asst. Dist. Attys., Dallas, Jim D. Yollers, State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

Three separate indictments' were returned charging appellant with the offense of attempted capital murder. Appellant duly and properly waived a trial by jury and the three cases were heard in a single trial to the court. The appellant was found guilty in each case and his punishment was assessed at confinement for eighteen years. Appellant was represented upon the trial by retained counsel and upon appeal by court-appointed counsel. A single brief has been filed by appellant with a single response, and we will dispose of the three cases in one opinion.

On the evening of June 4, 1975, Dallas Police Officer J. L. Chandler, in uniform and patrolling in a well-marked police vehicle, was stopped at a traffic light when he looked to his left and saw appellant reach up on the dash of his automobile for a pistol which he then pointed at Chandler. Appellant then pulled around in front of Chandler and sped off with Chandler in pursuit. Chandler reported to the police dispatcher that he was attempting to arrest appellant and was joined in the chase by Officers T. L. Graves, Dan Cain, and Gary Jones, each of whom was driving or riding in a well-marked police vehicle and each was in uniform.

Each of the latter three officers testified that appellant fired his pistol at him one or more times during the pursuit, but not one was hit by any bullet. Appellant eventually stopped his vehicle, got out, and ran with Officer Graves in pursuit. Finally, after considerable struggle, appellant was subdued, handcuffed, and taken to the police station under arrest. Each of the officers was positive in his identification of appellant and he did not offer any factual defense through his own testimony or otherwise. Indeed, the only defense shown by the record was the defense of insanity which was rejected factually by the judge hearing the case.

In his first six grounds of error, appellant complains of the sufficiency of the indictments. As the three indictments are virtually identical, a quotation from that involving Officer Graves [our No. 52,-450] will suffice to illustrate the complaint as to all of the cases. The indictment, as pertinent to the complaint, reads:

“. . . then and there, with the specific intent to commit the offense of capital murder, attempt to cause the death of Terry L. Graves, hereinafter called complainant, by shooting the said Terry L. Graves with a pistol and the said complainant was a peace officer then and there acting in the lawful discharge of an official duty to-wit: attempting to arrest said defendant and the said defendant then and there knew the said complainant to be a peace officer.”

Appellant did not file a motion to quash any of the indictments and the complaint is made for the first time upon appeal. Citing V.T.C.A., Penal Code, Sec. 15.01(a), and American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), appellant contends that the omission of the phrase “amounting to more than mere preparation that tends but fails to effect the commission of the offense intended” renders the above indictment fundamentally ineffective.

We restate the argument in counsel’s own words:

“It is an element of the offense of criminal attempt that the actor do an act which amounts to more than mere preparation.
“The indictment in the pending cause alleges an act (i. e. ‘shooting’) but fails to allege that such act is one that is beyond mere preparation. It was part of the burden of proof for the State to establish that the act committed was beyond mere preparation.”
V.T.C.A., Penal Code, Sec. 15.01(a), reads:
“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

We quote the definition of murder and capital murder in the margin, noting that the indictment contains all the .necessary allegations to charge capital murder if appellant had been a better marksman on the night in question.

In Green v. State, 533 S.W.2d 769, 770 (Tex.Cr.App.1976), this Court noted that the function of a motion to quash the indictment was “to call the trial court’s attention to a defect in the indictment that is not obvious on its face.” It is apparent from the evidence introduced (which stands without dispute or contradiction) that appellant had acquired a pistol and shells; that he had this loaded weapon upon the dash of his vehicle where it was readily available for his use in killing or wounding persons when he so determined to use it.

Although dissenting, Judge Onion in Green v. State, supra, had occasion to discuss the provisions of V.T.C.A., Penal Code, Sec. 15.01(a), and his comments are persuasive in the present case. This is the language used:

“Under this statute the elements necessary to establish an offense are: (1) a person (an actor), (2) with specific intent to commit an offense, (3) does an act (amounting to more than mere preparation), (4) that tends, but fails, to effect the commission of the offense intended. See 1 Branch’s Ann.P.C., 3rd ed., p. 634.”

Under the old 1925 version of the Penal Code, the intent to kill could be inferred from the use of a deadly weapon; and, since a pistol is a deadly weapon per se, proof of the use of a pistol in shooting at another person was sufficient to support a conviction of assault with intent to murder under the statute, Article 1160. See Thompson v. State, 521 S.W.2d 621, 622 (Tex.Cr.App.1974), and cases therein cited. See also, Garcia v. State, 541 S.W.2d 428 (Tex.Cr.App.1976), 1 T.C.R. 642.

In the absence of a motion to quash the indictment, no error is shown. American Plant Food Corporation v. State, supra. The first six grounds of error are overruled.

We will discuss appellant’s seventh and eighth grounds of error together. In the seventh ground of error, appellant contends that the evidence is insufficient to support the conviction of attempting to commit the capital murder of Terry L. Graves, our No. 52,450. The eighth ground of error urges a similar complaint as to Gary Jones, our No. 52,448. In each instance, appellant argues that there is a fatal variance between the indictment which alleged that appellant shot Graves (or Jones, as the case may be) when the evidence showed that he only shot at the officer, completely missing him in each instance.

The undisputed testimony showed that as Graves’ patrol car was pursuing appellant’s vehicle, appellant turned around, aimed his pistol at Graves, and fired a shot which struck the hood of Graves’ vehicle but did not strike his person. A second shot was fired at Graves but it did not hit the officer. Similarly, the testimony showed beyond a question of doubt that while appellant shot at Officer Jones, he did not succeed in having the bullet strike Jones’ body.

Appellant’s argument contrasts the language of the indictments in our No. 52,448, involving Jones, and No. 52,450, involving Graves, with the language used in the indictment in our No. 52,449, involving Dan Cain. As noted earlier, in the indictments involving Jones and Graves, it is charged that appellant did attempt to cause the death of the named officer “by shooting the said” officer with a pistol. Unaccountably, in the indictment involving Dan Cain, the charge is that appellant attempted to cause the death of the said officer “by shooting a pistol at Danny Max Cain.” (emphasis supplied)

We are not impressed by this ingenious but sophisticated argument. A similar complaint was made in Williams v. State, 449 S.W.2d 271, 272 (Tex.Cr.App.1969), where the Court stated the problem in this manner:

“The first ground of error is that there is a fatal variance between the indictment which alleged that the appellant, with malice, shot Pat Gooden with a pistol with the intent to murder him and the evidence which fails to show that he shot him.”

The late Judge Belcher then recounted the evidence which showed that the defendant had entered the tavern with a pistol in his hand and his finger on the trigger; that he pointed the pistol at Gooden’s head while standing at the table where Gooden was sitting, and when Gooden struck his hand the pistol fired. Gooden then jumped up and the parties grappled over the pistol which snapped several times. In disposing of the contention, the Court held the evidence to be sufficient to sustain the conviction of the offense of assault with intent to murder with malice, saying:

“The first ground of error is overruled. 4 Branch 2d 168, Sec. 1797; Carr v. State, 41 Tex. 543, 547; McIntire v. State, 105 Tex.Cr.R. 403, 289 S.W. 48; Perez v. State, 114 Tex.Cr.R. 473, 22 S.W.2d 309.”

In Carr v. State, 41 Tex. 543, 546-547 (1874), cited in Williams v. State, supra, we find this language:

“The indictment in effect charges the defendant with having shot John Dickson with a pistol, with intent to murder him. The word ‘assault’ is not in the indictment. The evidence shows beyond a question that Carr shot at Dickson and missed him. This raises the question, Does the proof sustain the allegations in the indictment, so far as it is necessary to make the conviction legal?”

Having searched “in vain in the books of forms for such an indictment for the offense attempted to be charged”, Chief Justice Roberts resorted to “first principles” and concluded that “the act of shooting Dixon, as alleged, includes the act of assaulting him, as proved.”

So it is in this case, and, so holding, the seventh and eighth grounds of error are overruled.

We have also carefully reviewed appellant’s pro se brief filed in this court and, finding no error disclosed by such examination and review, each ground therein is overruled.

Finally, we adopt Chief Justice Roberts’ comments in Carr v. State, supra, as applicable to the case at bar:

“Notwithstanding the proceedings may not be altogether so formal and regular as the facts of the case are plain, we find no substantial error which requires a reversal of the conviction.”

Judgment affirmed.

Approved by the Court.

      . V.T.C.A., Penal Code, Sec. 19.02(a): “A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual.”

      . Capital murder is defined in V.T.C.A., Penal Code, Sec. 19.03(a): “A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and: (1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman.”