author: ODOM, Judge.

text:
    Kenneth Carl WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 55608.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 24, 1978.
    Rehearing En Banc Denied Jan. 10, 1979.

      Donald W. Bankston, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Najla Weyant, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of over four ounces of marihuana. Punishment was assessed by the court at two years and appellant was placed on probation.

In his only ground of error appellant contends the trial court erroneously overruled his motion to suppress the contraband because it was seized in an inventory search conducted after an unlawful stop of appellant’s automobile. We agree and reverse the judgment.

The record reflects that around midday on April 24,1975, officers Carroll and Keni-sell of the Houston Police Department were on patrol in their police ear when they observed an automobile in the parking lot of Gulfgate Mall shopping center. They watched the car as it drove around the parking lot for three or four minutes and then stopped it as it started to leave. We are here concerned only with the reasons given for this initial stop.

Officer Carroll testified there had been a rash of purse snatching at the Gulfgate Mall and parking lot. When asked what unusual behavior brought appellant to his attention, he answered, “We saw they were driving around with no purpose. They were just driving around in the parking lot.” He later testified, “All I could tell you is when someone is riding around with no purpose in mind that looks suspicious to me.” He admitted that no illegal behavior was observed and that neither appellant, his passenger, nor the car fit any description of a suspect or car related to purse snatehings. The other officer testified that they observed appellant driving through the Gulf-gate parking lot, turned around and stopped him as he was leaving the parking lot, and asked him for his driver’s license.

The State argues the stop was a valid driver’s license check under Article 6687b, Sec. 13, V.A.C.S. A driver’s license check may not be used as a subterfuge to cover up an unlawful stop based on mere suspicion unsupported by articulable facts necessary for an investigative detention. Fatemi v. State, Tex.Cr.App., 558 S.W.2d 463; Faulkner v. State, Tex.Cr.App., 549 S.W.2d 1. Here the officers were suspicious of appellant “riding around with no purpose in mind.” The behavior observed by the officers was as consistent with innocent activity as with criminal activity, and in fact was no ground for suspicion whatsoever. A mere hunch will not support a traffic stop. Shaffer v. State, Tex.Cr.App., 562 S.W.2d 853; Scott v. State, Tex.Cr.App., 549 S.W.2d 170; Brown v. State, Tex.Cr.App., 481 S.W.2d 106.

We hold the automobile stop was unauthorized and a violation of appellant’s constitutional rights. The contraband discovered and seized in the course of events flowing from the initial illegal stop should have been suppressed. The ground of error is sustained.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: DALLY, Judge. ROBERTS, Judge, ONION, Presiding Judge,

license: Public Domain

text:
    Lothar SOMMER, Appellant, v. The STATE of Texas, Appellee.
    No. 56865.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 15, 1978.
    Allen C. Isbell, Houston, court appointed, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Kay L. Burkhalter, Asst. Dist. Attys., Houston, for the State.
   OPINION ON REHEARING EN BANC UPON COURT’S OWN MOTION

DALLY, Judge.

This is an appeal from a conviction for the offense of burglary of a building with the intent to commit theft. The punishment is imprisonment for ten years.

Our prior per curiam opinion on original submission is withdrawn and this opinion is substituted on the Motion for Rehearing En Banc on the Court’s Own Motion.

The sole ground of error raised by the appellant is that the trial court erred in not withdrawing sua sponte appellant’s plea of guilty. When the evidence fairly raised the issue of innocence in that appellant had no knowledge of entering the alleged building.

The appellant waived a jury trial and entered his plea of guilty before the court. We have recently held in Moon v. State, 572 S.W.2d 681 (No. 54,342, decided Oct. 4,1978 on State’s Motion for Rehearing) that when the plea is before the court a plea of guilty need not be withdrawn and a plea of not guilty entered when evidence is introduced that might reasonably and fairly raise an issue of fact as to the guilt of the defendant. The trial judge as the trier of the facts may without withdrawing the plea decide the issue either finding the defendant not guilty or guilty as he believes the facts require.

The judgment is affirmed.

ROBERTS, Judge,

concurring in part and dissenting in part.

What follows is the per curiam opinion originally prepared for the Court in this case. I continue to believe that the opinion was correct and therefore adopt it as my opinion on rehearing:

“This is an appeal from a plea of guilty to the charge of burglary of a building with intent to commit theft. The trial court assessed punishment at confinement in the Texas Department of Corrections for a term of ten (10) years.

“The appellant sets forth one ground of error in which he complains that the trial court should have withdrawn the plea of guilty and entered a plea of not guilty when appellant’s testimony raised an issue as to his guilt. The appellant relies upon testimony wherein the appellant stated that he had been drinking and awakened inside a strange building. While the appellant is correct in his position that this Court exercises great care in requiring a trial judge to withdraw a plea of guilty where the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, that principle is not applicable to the present case. An examination of the record in this cause indicates that the appellant did not testify at the hearing on February 15,1977, wherein he entered a plea of guilty and he was found guilty. It was only at the hearing on punishment on April 13, 1977, after the appellant had been found guilty, that the appellant presented the testimony upon which he now relies.

“This Court has had the occasion to consider this question very recently in Sullivan v. State, No. 56,864, 573 S.W.2d 1 (January 18, 1978). In that case the Court pointed out that in situations where the appellant’s guilt had already been adjudicated, the trial judge was under no obligation to withdraw appellant’s plea of guilty, even if the evidence makes evident the innocence of the accused or reasonably and fairly raises an issue of such fact. Appellant’s contention in this case is without merit and the conviction is affirmed.”

ONION, Presiding Judge,

dissenting.

The only contention raised by the appellant is that the trial court erred in failing to sua sponte withdraw his guilty plea when the evidence fairly raised an issue of fact as to his innocence. He relies upon the rule that where a defendant has entered a guilty or nolo contendere plea in a felony case and the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is withdrawn, the trial court is required sua sponte to withdraw the defendant’s guilty or nolo conten-dere plea and enter a not guilty plea for the defendant. See, e. g., Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915); Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1973); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977). See also Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976); Allen v. State, 559 S.W.2d 656 (Tex.Cr.App.1977).

The rule relied upon applies although the accused makes no request to withdraw at all. In Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915), this court wrote:

“If the defendant pleads guilty, and the facts should develop that he is not guilty, but acted purely in self-defense, it would be the duty of the court to see that no conviction was had, although a plea of guilty was entered. . . . ”

Appellant calls attention to his own testimony that he was on a trip from California to Florida and stopped in Houston for gas and to switch drivers; that he and his companion bought some wine and he went to sleep on the back seat of the car and woke up in a strange building when the police entered and found him still in the back seat of the car.

In the instant case the appellant entered a guilty plea on February 15,1977. He was duly admonished of the consequences of his plea. During the colloquy at the bench there was discussion about resetting the case, about the appellant bringing in witnesses, some of whom were out of town. Stipulations were entered into and the court found the appellant guilty but did not assess punishment and reset the matter “for the purposes of hearing additional witnesses as to character and reputation of the Defendant as well as to order a pre-sentence investigation.”

On April 13, 1977, almost two months later, the case was called again. The record reflects the following at that time:

“THE COURT: The court has had a pre-sentence investigation made, and I don’t believe . . . did you have any witnesses at that time?
“MR. FRAGA (Defense Counsel): No, Your Honor.
“THE COURT: I don’t remember you having any. Do you have any you want to present at this time?
“THE DEFENDANT: Yes, sir.”

The twenty-four year old appellant then testified, without objection, as to the facts surrounding the alleged offense, including the fact that he had had some wine, fell asleep in the back seat of a car, and woke up on such seat inside a burglarized building when the police arrived. He denied any knowledge of the burglary. His sister and her friend, William Price, then testified as reputation witnesses.

At no time was there an objection that this was the “penalty stage” of the guilty plea or that appellant had no right to reopen and call fact witnesses, etc. At the conclusion of the evidence including appellant’s testimony, the court for the first time assessed punishment, one of the essential elements of a judgment. See Article 42.01, V.A.C.C.P.

Article 37.07, Y.A.C.C.P., providing for bifurcated trials, is, by its very terms, not applicable to pleas of guilty, in felony cases, either before a judge or jury. Basaldua v. State, 481 S.W.2d 851, 853 (Tex.Cr.App.1972), and cases there cited; Johnson v. State, 492 S.W.2d 505 (Tex.Cr.App.1973); Morales v. State, 416 S.W.2d 403 (Tex.Cr. App.1967); Thom v. State, 563 S.W.2d 618 (Tex.Cr.App.1978); Bean v. State, 563 S.W.2d 819 (Tex.Cr.App.1978) (Concurring Opinion). See and cf. Nunez v. State, 565 S.W.2d 536 (Tex.Cr.App.1978).

Even though a judge may, without statutory authority, bifurcate a guilty plea proceeding, this does not affect the rule relied upon by the appellant.

In the instant case appellant’s testimony before punishment was ever imposed fairly raised an issue of the fact of his innocence and the trial court, in my opinion, erred in not withdrawing the plea of guilty.

The rule relied upon by the appellant has long been held applicable to pleas of guilty and nolo contendere whether the pleas were before the judge or the jury and such holdings were both before and after the 1965 Code of Criminal Procedure. See the cases cited on original submission in Moon v. State, 572 S.W.2d 681 (Tex.Cr.App. # 54,-352, 1977 — rehearing 1978). On rehearing of the State’s motion for rehearing in Moon, the majority took the well-established rule and split it in two, leaving the rule applicable to a jury, but inapplicable to a bench trial. That decision on rehearing in Moon was erroneous and should be overruled. The majority uses the same in the instant case to affirm the judgment without any discussion of the facts merely because this was a bench trial. I dissent for the reasons set forth in the opinion on original submission in Moon.

      . And see my opinions on rehearing and original submission in Sullivan v. State, 573 S.W.2d 1 (Tex.Cr.App.1978) (No. 56,864, this day decided), as well as my opinion on rehearing in Moon v. State, 572 S.W.2d 681 (Tex.Cr.App. 1978) (No. 54,352, this day decided).
      Here, as in Sullivan, the trial court expressly found the appellant guilty before he abated the proceedings for a subsequent hearing on the issue of punishment.


author: ROBERTS, Judge.

text:
    James Earl SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 54786.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 20, 1978.
    Izak D. Gregory and Edgar A. Mason, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and Paul Macaluso, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for unlawful possession of a firearm by a felon. Upon a plea of not guilty, appellant was convicted by a jury which assessed punishment at eight years’ imprisonment.

We are confronted at the outset with fundamental error in the jury charge that requires reversal in the interest of justice. Article 40.09(13), Vernon’s Ann. C.C.P.; Article 36.19, Vernon’s Ann. C.C.P.

The record reflects that on September 8, 1970, an indictment was filed in the Criminal District Court No. 5 of Dallas County charging appellant with the offense of robbery under the former Penal Code. Article 1408, V.A.P.C., (1925). Appellant was brought to trial on this indictment, and on November 6, 1970, he was convicted of the lesser included offense of assault with intent to commit robbery, Article 1163, V.A. P.C. (1925), and placed on probation which was subsequently revoked on March 17, 1972. Appellant served a two-year sentence and was discharged. On March 25, 1975, appellant was found in possession of a .25 caliber automatic pistol while he was away from the premises where he lived.

Omitting the formal portions, the indictment charged that appellant:

“. . . did unlawfully, knowingly and intentionally possess a firearm, to-wit: a handgun, away from the premises where he lived, and . . . that prior to the commission of the aforesaid offense by said defendant, to-wit: on the 10th day of August A.D. 1970, in Cause No. C70-6507-ML, in the Criminal District Court No. 5 of Dallas County, Texas, styled the state of Texas vs. James Earl Smith, the said defendant was duly and legally convicted of an offense of Robbery, . (Emphasis supplied).

At the guilt-innocence stage, the court instructed the jury as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 22nd day of March, 1975 in Dallas County, Texas, the defendant did then and there intentionally or knowingly possess, away from the premises upon which he lives, a handgun, to wit, a pistol, and that the said defendant, James Earl Smith, had theretofore, to wit, on the 10th day of August, 1970 in the Criminal District Court Number Five of Dallas County, Texas, in Cause Number C-70-6507-ML, styled The State of Texas versus James Earl Smith, been convicted of a felony involving an act of violence to a person, to wit, robbery, or its lesser included offense of assault with intent to commit robbery, then you will find the defendant guilty as charged.” (Emphasis supplied).

Thus, in applying the law to the facts in its instructions to the jury, the court not only authorized the jury to convict appellant if they found that he had been previously convicted of the offense of robbery as alleged in the indictment; but, the court also allowed the jury to convict appellant if they found that he had been previously convicted for the offense of assault with intent to commit robbery, a theory not alleged in the indictment.

It is well established that a jury charge is fundamentally defective if it authorizes conviction on a theory not supported by the indictment. This charge, then, was fundamentally erroneous and the cases of Armstead v. State, 573 S.W.2d 231 (Tex.Cr.App.1978); Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978), and Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977), require that we reverse appellant’s conviction. See also Article 36.19, supra.

The judgment is reversed and the cause remanded.

      . V.T.C.A., Penal Code, provides in relevant part that:
      “Sec. 46.05. Unlawful Possession of Firearm by Felon
      “(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he litles.”

      . Under the former Penal Code, the offense of robbery was a Title 17 Offense Against Property and the offense of assault with intent to rob was a Title 15 Offense Against the Person.

      . Although the present indictment alleges that appellant was previously convicted for the offense of robbery on August 10, 1970, the record indicates that appellant was in fact convicted on November 6, 1970, for the offense of assault with intent to commit robbery.

      . We express no opinion on the validity of this indictment; however, see and compare Mendoza v. State, 460 S.W.2d 145 (Tex.Cr.App.1970) and Waiter v. State, 460 S.W.2d 147 (Tex.Cr.App.1970), which held that where a prior conviction for burglary was relied upon to invoke Sec. 46.05, supra, the indictment must allege and the evidence must show that the prior conviction involved an act of violence. But see Scott v. State, 571 S.W.2d 893 (Tex.Cr.App.1978), wherein we held that the offense of robbery by assault is a felony involving violence or threatened violence against a person as a matter of law and therefore it was not necessary for the State to present evidence regarding the circumstances of the commission of the offense.


author: VOLLERS, Judge.

text:
    John David MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 54986.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 20, 1978.
    Bruce K. Bornefeld, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Keno M. Henderson, Jr., Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. The court assessed punishment at 15 years and 1 day. Appellant raises numerous grounds of error, but we can dispose of this cause under ground of error number four.

The indictment in this cause accused appellant of committing aggravated robbery by alleging in part that on or about May 17, 1974, appellant did:

“while in the course of committing theft of money owned by Vernon Lee Roberson, hereafter styled the Complainant, and with intent to obtain the maintain control of the property, intentionally and knowingly cause serious bodily injury to the Complainant.” (Emphasis added.)

The trial court instructed the jury that it could find appellant guilty of the offense of aggravated robbery if it found that he did, in the course of committing, theft, intentionally, knowingly or recklessly cause bodily injury to the victim, or knowingly threaten or place the victim in fear of imminent bodily injury or death. The court further instructed the jury that the robbery became aggravated if it found that appellant caused serious bodily injury to the victim or used or exhibited a deadly weapon in committing the robbery.

Since the indictment only alleged that appellant caused serious bodily injury and the court’s charge to the jury submitting both alternative grounds for aggravated robbery under V.T.C.A., Penal Code, Section 29.03(a), it appears that the trial court committed fundamental error in authorizing the jury to convict the appellant upon a theory not alleged in the indictment. Under the prior decisions of this Court the fact that appellant made no objection to the court’s charge is immaterial. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1971); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Brewer v. State, 572 S.W.2d 719 (Tex.Cr.App.1978).

For these reasons the judgment is reversed and the cause is remanded.

      . This writer feels that although such an interpretation appears to be a complete contradiction to the provisions of Article 36.19, V.A.C. C.P. and many prior decisions of this Court, a majority of this court, En Banc, have decided that this is the law. Although misguided (see Brewer v. State, supra, dissenting opinion), such a decision by a majority of the Court is controlling, and is the law.


text:
    Buddy Charles HEFLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 55442.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 20, 1978.
    W. V. Dunnam, Jr., Waco, for appellant.
    Felipe Reyna, Dist. Atty. and Rodney S. Goble, Asst. Dist. Atty., Waco, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape in which punishment was fixed at 50 years. Appellant’s grounds of error numbers 10,11,12 and 13 complain of the admission into evidence of certain pills found in his automobile when he was arrested approximately one month after the offense occurred. Our disposition of the case makes consideration of his other grounds of error unnecessary.

Appellant was arrested for criminal trespass when an officer, responding to a complaint, saw him emerging from an apartment complex in Waco and chased him down. He fit the description of the suspect in a rape that had occurred in another Waco apartment complex a month earlier. After the arrest, police searched his car which was in the apartment parking lot and discovered several bottles of pills in the pocket of appellant’s army field jacket.

At the trial the pills were introduced into evidence over objection. A Department of Public Safety chemist testified to the fact that one of the bottles contained an amphetamine and another contained diazepam, better known by its trade name, Valium. The chemist testified that the Valium was classified as a dangerous drug and that amphetamines were in penalty group 3.

Appellant asserts on appeal that use of the pills at trial was improper introduction of a collateral offense and that they were introduced solely to prejudice the jury against appellant. The State contends that the pills were admissible as res gestae of the arrest.

In Riles v. State, Tex.Cr.App., 557 S.W.2d 95, this Court quoted from Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836, where it stated:

“The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.”

Evidence of the commission of other offenses is admissible to establish identity of the person or crime, intent, motive, system, when put in issue, or as part of the res gestae. Cameron v. State, Tex.Cr.App., 530 S.W.2d 841. The justification for introduction of an extraneous offense must be carefully examined because of the potential for prejudice that exists.

“Limitations on the admissibility of evidence of an accused’s prior criminal conduct are imposed not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him. . Thus, before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown.” Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, 100.

It cannot be said these pills were res gestae of the arrest. The arrest took place in the apartment complex after appellant ran back into it on spotting the police. He was then taken to a police car on the east side of the apartment complex and read his rights. Only then did the police inquire about the location of his car. The car was parked on the west side of the complex which measured two blocks by one block. The pills were found in the pocket of a jacket in the car. Thus, the search of the car and discovery of the pills was isolated both in time and place from the arrest. Had the pills been on appellant’s person at the time of arrest the result might be different but under the existing facts the pills cannot be res gestae of the arrest. Compare, Milligan v. State, Tex.Cr.App., 554 S.W.2d 192; Downey v. State, Tex.Cr.App., 505 S.W.2d 907.

The judgment is reversed and the cause remanded.

PHILLIPS, J., not participating.

      . See, Art. 4476-14, V.A.C.S.

      . This is a reference to the Texas Controlled Substances Act, Art. 4476-15, Vernon’s Ann. Civ.St.

      . This list is not exclusive. See Albrecht v. State, 486 S.W.2d 97 and cases cited therein.


author: TOM G. DAVIS, Judge.

text:
    Charles Edward SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 55818.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 20, 1978.

      Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and William E. Taylor, III, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a vehicle. V.T.C.A. Penal Code, Sec. 30.04. Punishment, enhanced by two prior convictions, was assessed at life.

In separate grounds of error, appellant contends that the court erred in admitting two hearsay statements into evidence. Since we find these grounds of error dispos-itive of the case, we develop the facts only insofar as they are necessary to a discussion of these contentions.

Appellant’s conviction was based on the burglary of a vehicle that occurred between 3:00 p. m. and 4:00 p. m. on December 9, 1975. The complaining witness testified that during that time someone entered his locked truck on Foley’s parking lot in Northwest Mall in Houston and took a Citizens Band (C.B.) radio and a tool box. This radio and tool box were found by police officers in a red van in which the appellant was riding at approximately 5:00 p. m. on the same day. A search of the appellant revealed two screwdrivers, a knife, and wire cutters. No other connections between the break-in and the appellant were shown.

The officers had stopped the van after they had been approached in a Woolco parking lot by an unidentified teenage girl and told that a red van at a nearby intersection had been stolen from the Woolco parking lot. She stated that she had heard this information over her C.B. radio. The officers could see a red van at that intersection as the girl talked to them.

After the officers stopped the red van, an unidentified man approached the officers and told them that he had heard over his C.B. radio that someone in a red van had been attempting to break into an automobile on the Woolco parking lot. A subsequent search of the van revealed the property stolen in the previous break-in of the truck on Foley’s parking lot.

The testimony complained of was by Officer McSwain, the arresting officer. His testimony before the jury was as follows:

“Q. And who did this person talk to when she came up to your police vehicle?
“A. She came up to my side of the car which is the passenger side.
“Q. And what was it that she told you?
“MR. MOORE [defense counsel]: I’m going to object to that, Judge. I’d like to have the jury removed. This is the subject of our motion.
“THE COURT: Overruled.
“MR. MOORE: Note my exception, Your Honor.
“We would object further as to what she told him as being hearsay to this defendant unless it can be shown he was present at that time.
“THE COURT: Overruled at this time.
“MR. MOORE: Note my exception.
“Q. (By Mr. Taylor [prosecutor]): What did she state?
“A. She said she heard over the CB radio that the van at the intersection of Long Point and Campbell was stolen, and she heard it over a CB radio.
“MR. MOORE: We’d object to this, Judge, being hearsay as to this defendant, not being shown the source—
“THE COURT: Overruled.”

After further questioning the appellant again requested that the jury be removed for a hearing on his motion to suppress. After a hearing was held, the jury returned and the following testimony was elicited from Officer McSwain regarding a conversation with another C.B. operator:

“Q. And subsequent to your partner going and looking for the YIN [vehicle identification] number, was there anything else — was there any other conversation in this defendant’s presence concerning the occurrence that you were investigating?
“A. That’s correct.
“Q. Okay. What was that?
“A. The other CB operator—
“Q. Yes.
“A. —stating that he had heard—
“MR. MOORE: Again, Your Honor, I’m going to object to somebody stating what he heard. This would be hearsay.
“MR. TAYLOR: It’s in the presence of this defendant, Your Honor, and it’s res gestae of this particular occurrence.
“THE COURT: Who was present? Was the defendant present?
“THE WITNESS: Sir? Yes, sir.
“THE COURT: Overruled.
“MR. MOORE: Note my exception, Your Honor, as to the hearsay.
“THE COURT: I will do that.
“A. He stated that he had heard over his CB radio that a red van — someone operating a red van had been seen attempting to break into a pickup truck in a parking lot — at the Woolco parking lot.
“Q. And this occurrence took place in the presence of this defendant and the Defendant Zataratous [driver of the van] and your partner and yourself, is that correct?
“A. Yes, sir.
“Q. And subsequent to that what did your partner do, if anything?
“A. My partner walked up to the vehicle and opened the door and looked inside.”

All the testimony set out above was also elicited at the hearing on appellant’s motion to suppress, at the conclusion of which the court ruled that the articles seized in the search of the van were admissible. No issue was submitted to the jury regarding the search.

The appellant did not testify at trial. The driver of the van arrested with him took the stand but asserted his Fifth Amendment privilege and refused to testify

Appellant contends that although this hearsay was admissible on the issue of probable cause at the suppression hearing, this was not an issue for the jury’s determination.

Hearsay testimony relating to the existence of probable cause is not admissible if no issue of probable cause is before the jury. Haynes v. State, Tex.Cr.App., 567 S.W.2d 518; Torres v. State, Tex.Cr.App., 552 S.W.2d 821; Smith v. State, Tex.Cr. App., 511 S.W.2d 296; Maxon v. State, Tex. Cr.App., 507 S.W.2d 234; Barber v. State, Tex.Cr.App., 481 S.W.2d 812; Dawson v. State, Tex.Cr.App., 477 S.W.2d 277; Vara v. State, Tex.Cr.App., 466 S.W.2d 315.

Whether the admission of such hearsay testimony is reversible error depends on the facts of each case. See Torres v. State, supra; Smith v. State, supra; Maxon v. State, supra; Vara v. State, supra.

In the present case, the evidence against the appellant was circumstantial. It showed him to be in a van in which stolen property was found soon after that property had been stolen, and in possession of items useful to gain entry and remove a radio from an automobile.

Under these circumstances, we cannot say that the hearsay testimony of the officer regarding what two people had told him that they had heard over their C.B. radios was harmless. The error in the admission of these hearsay statements requires reversal of this cause.

The judgment is reversed and the cause remanded.


author: W. C. DAVIS, Judge.

text:
    Ronald RESNICK, Appellant, v. The STATE of Texas, Appellee.
    No. 55923.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 20, 1978.
    Barbara L. Welz and Catherine F. Harris, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky, Burt Carnes, and Ted Steinke, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for public lewdness; punishment is confinement in jail for 30 days and a fine of $1,000.

Appellant contends that: (1) the evidence is insufficient to sustain the conviction; (2) the court erred in refusing appellant’s requested instruction on whether a stall or a booth is a private place; (3) the jury engaged in misconduct during its deliberations; and (4) the judgment and sentence fail to state an offense and are not supported by the pleadings, evidence or verdict.

The offense occurred on April 12, 1976, at the Ellwest Arcade, an adult movie house in Dallas. The complainant, L. P. Reid, an undercover police officer, testified that he and appellant entered a coin-operated movie booth at the arcade at approximately the same time. The officer inserted coins in the movie unit, and as he and the appellant watched the movie, appellant placed his hand on that portion of the officer’s trousers which covered his genitals. Reid testified that his pants were zipped and that his genitals were completely inside his pants; that appellant did not reach inside his pants; that appellant’s fingers did not encircle his penis; and that appellant’s hand touched only the officer’s trousers and did not make flesh-to-flesh contact with his genitals.

V.T.C.A. Penal Code, Sec. 21.07, defines public lewdness as follows:

“A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:
(1) an act of sexual intercourse;
(2) an act of deviate sexual intercourse;
(3) an act of sexual contact;
(4) an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.”

Appellant was charged with public lewdness by sexual contact in a public place, the complaint and information alleging in relevant part that appellant did:

“. . . knowingly engage in an act of sexual contact with L. P. Reid, by then and there touching the penis of the said L. P. Reid, with the intent to arouse and gratify the sexual desire of Ronald Res-nick, in a public place to-wit: El West Arcade, 308 S. Ervay, Dallas, Dallas County, Texas. . . . ”

“Sexual contact” is defined in V.T.C.A. Penal Code, Sec. 21.01(2) as follows:

any touching of the anus or any part of the genitals of another person or the breast of a female 10 years or older with intent to arouse or gratify the sexual desire of any person.”

Appellant argues that the evidence does not show a “touching” of the officer’s genitals within the meaning of that word as used in the statutory definition of sexual contact.

Miles v. State, 157 Tex.Cr.R. 188, 247 S.W.2d 898 (1952) involved a prosecution under Article 535d, Y.A.P.C. (1925). That statute provided as follows:

“It shall be unlawful for any person with lascivious intent to intentionally place or attempt to place his or her hand or hands, or any portion of his or her hand or hands upon or against a sexual part of a male or female under the age of fourteen (14) years, or to in any way or manner fondle or attempt to fondle a sexual part of a male or female under the age of fourteen (14) years, or to intentionally place or attempt to place his or her hands or any part of his hand or hands upon the breast of a female under the age of fourteen (14) years, or to in any way or manner fondle or attempt to fondle the breast of a female under the age of fourteen (14) years.”

The Court in Miles, in response to the argument that the evidence in that case showed no flesh-to-flesh contact, observed that:

“. . . there is nothing in the statute suggesting that the crime there denounced could be committed only by the application of the bare hand of the accused to the bare or naked sexual part of the child.”

Although the statutory language in the instant case differs from that in Miles, we are not persuaded that a different result should follow. Webster’s New Twentieth Century Dictionary of the English Language, Unabridged, Second Edition (1978) gives the following as its first definition of “touch”:

“1. to put the hand, finger, or other part of the body on, so as to feel; to perceive by the sense of feeling.”

This definition makes it quite plain that the essence of the act of touching is to perceive by the sense of feeling. It is a matter of the commonest knowledge that the interposition of a layer of fabric between a person’s hand and an object upon which the hand is placed will not prevent that person from feeling the object thus concealed. Were we to accept appellant’s contention that he did not “touch” the officer’s genitals because no flesh-to-flesh contact was made, absurd results would follow. Under such an analysis, a defendant who thrust his hand beneath a victim’s undergarments and fondled his or her genitals in a public place could not be prosecuted for public lewdness if he were wearing a glove.

We hold that the evidence is sufficient to show an act of sexual contact and therefore is sufficient to sustain the conviction.

Appellant urges that the court erred in refusing the following requested instruction:

“. . . You are further instructed that a stall or a booth in a public viewing room is private to the extent that it is offered to the public for private, however transcient, individual’s use, and the occupants thereof are entitled to the modicum of privacy that its design affords. Therefore, if you should find that an act of sexual contact was made by the defendant with L. D. Reid on the 12th day of April, 1976, in the Ellwest Arcade, 308 South Ervay, Dallas, Texas, as alleged, but that such act occurred in a movie stall wherein the defendant could reasonably expect privacy, and such act was not in plain view, you will acquit the defendant and say by your verdict not guilty.”

In a prosecution for public lewdness, it is not error to refuse to instruct the jury that it can acquit the defendant if it finds that the place where the defendant’s conduct occurred was not a “public place.” Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978). Appellant’s requested instruction would have informed the jury that the movie stall was not a public place as a matter of law. The requested instruction was properly refused.

Appellant claims that a note from the jury indicates that the jurors engaged in misconduct by considering punishment during their deliberations on guilt or innocence. Appellant made no claim of misconduct in his motion for new trial, nor did he submit affidavits of jurors supporting his claim. Nothing is presented for review. Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975); Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973).

Appellant’s final contention concerns the judgment and sentence, which recite that appellant engaged in an act of sexual contact and was reckless about whether another was present who would be offended or alarmed by the act. He argues that the judgment and sentence are in conflict with the pleadings and evidence, which showed that appellant engaged in an act of sexual contact in a public place. Before the appellate record was filed in this Court, a nunc pro tunc hearing was held, and the judgment and sentence were corrected. The trial court was within its power in entering the judgment and sentence nunc pro tunc. Arts. 40.09, 44.11, V.A.C.C.P.; Perkins v. State, 505 S.W.2d 563 (Tex.Cr.App.1974). The conflict of which appellant complains no longer exists.

The judgment is affirmed.

ODOM, J., dissents.


author: DOUGLAS, Judge.

text:
    James F. BRIDGES, Appellant, v. The STATE of Texas, Appellee.
    No. 56647.
    Court of Criminal- Appeals of Texas, Panel No. 3.
    Dec. 20, 1978.

      Ben D. Sudderth, Comanche, for appellant.
    Lynn Ingalsbe, Dist. Atty., Abilene, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

DOUGLAS, Judge.

James Bridges appeals from his conviction of aggravated robbery. The court, after finding that appellant had twice before been convicted of felony offenses, assessed punishment at life.

Appellant, in his sole ground of error, contends that the search warrant is invalid because it did not sufficiently describe the premises to be searched. The sufficiency of the evidence is not challenged.

On December 5, 1976, shortly before 8:00 p. m., David Smedley of the L & L Service Station in Abilene was robbed. Smedley was able to give police officers a description of the getaway car and the license plate number. Shortly thereafter, police arrested appellant at his residence at 2134 Hardy Street in Abilene. As appellant was placed under arrest, officers observed torn-up checks, made out to the L & L Service Station, on the floor. The officers then went before a magistrate to obtain a search warrant to search the house. A warrant was issued and executed. The officers seized various items used or taken in the robbery. The affidavit, which is incorporated in the warrant, describes the place to be searched as a “pink wood frame building having white trim located at 2134 Hardy” in Taylor County, Texas. It also indicates that the City of Abilene police officers had arrested appellant at that location and had just left there with the obvious intent of obtaining a search warrant.

Bridges argues that the description of the house is inadequate because it fails to specify the town in which 2134 Hardy is located. In response to repeated questioning on cross-examination, one of the officers who executed the warrant stated that he did not know if there was a 2134 Hardy address in several other communities in Taylor County-

Several of our previous cases bear directly on the issue before us. In Cruze v. State, 114 Tex.Cr.R. 450, 25 S.W.2d 875 (1930), we held that a warrant which authorized the search of the residence and buildings “occupied by P. C. Cruze” in “Robertson County, Texas” was sufficient. In Helton v. State, 164 Tex.Cr.R. 488, 300 S.W.2d 87 (1957), we were confronted with a warrant that described the place to be searched as a “residence” located in Dallas County at “719 Bonnie View.” The divided Court in Hel-ton overruled Cruze and held that the warrant was invalid because it did not specify in which city, in Dallas County, Bonnie View was located. Helton was written before Ex Parte Flores, 452 S.W.2d 443 (Tex.Cr.App.1970). Flores involved a warrant to search “Fred’s R C Paint & Body Shop on the west side of Josephine Street in the 600 block directly behind 1501 Leopard Street” in Nueces County, Texas. The Court in Flores held this description was sufficient since the record failed to indicate that such a building existed anywhere in Nueces County except Corpus Christi. The Court disposed of Helton by simply stating that it was “distinguishable under the facts.”

It is difficult, if not impossible, to reconcile Helton and Flores. Both “719 Bonnie View” and “Fred’s R C Paint & Body Shop” probably existed only in one place in the county. Any difference in the degree of that probability would be speculative.

Our law concerning search warrants has two goals: to ensure that there is adequate probable cause to search and to prevent the mistaken execution of the warrant against an innocent third party. This second goal is met when the warrant identifies the place to be searched sufficiently so that the officers who execute the warrant, acting as reasonable men, can locate that place and identify it from other places in the community. This goal is not furthered by rigid application of rules requiring a warrant to contain certain descriptive elements such as the name of the city. Article 18.04, V.A.C.C.P., does not set forth a list of required descriptive elements. We are convinced that the rights of society and of the innocent third party can best be protected by evaluating each search warrant individually. To the extent that Helton can be read to absolutely require that a warrant name the city in which the place to be searched is located, it is overruled.

In the instant case, the appellant was arrested in his house. The police officers made observations which gave them probable cause to suspect physical evidence was present in the house. The officers took this information to a magistrate who issued a search warrant that described the house to be searched by its street address, color, type of construction, county and state. The officers then returned to that house, conducted a search and seized the complained of items. There was no reasonable probability that the officers would search any place other than the intended house. The warrant was sufficient.

There is no reversible error. The judgment is affirmed.


author: CORNELIUS, Commissioner.

text:
    Melchor Tafoya LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 56827.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 20, 1978.

      Dick Stengel, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ., and CORNELIUS, Commissioner.
   OPINION

CORNELIUS, Commissioner.

A jury convicted appellant of the offense of delivery of heroin. Punishment, enhanced by prior convictions, was set at confinement for life. The sufficiency of the evidence is not challenged.

According to the State’s evidence, Detective Walter Mollier received information from a confidential informer that a person known as Wetto had some heroin for sale. Acting on that information, the officer and the informer went to a location in downtown El Paso in an attempt to locate Wetto. They were unable to find him, but while they were there they noticed the appellant standing on the south side of the curb between Stanton and Kansas Streets. When they saw appellant he motioned for them to come over to him. They did so and inquired of him if he knew where they could find Wetto. The appellant replied that he didn’t know why they were looking for Wetto because “he deals for me, the heroin that he is selling is my heroin.” Appellant then said, “So why don’t you go ahead and buy the heroin from me?” Officer Mollier then made the purchase.

Four grounds of error are urged for a reversal. The first asserts that the trial court erred in overruling appellant’s motion to disclose the identity of the State’s informer and in refusing to allow appellant’s counsel to cross-examine the State’s witnesses concerning their arrangements and relationships with the informer.

The accused is entitled to a disclosure of the identity of an informer where the informer took a material part in bringing about the offense or was present when it occurred and might be a material witness as to whether or not the accused committed the offense. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Acosta v. State, 403 S.W.2d 434 (Tex.Cr.App.1966); Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967). But the record here reveals that appellant and his counsel knew the informer, and his identity was revealed on several occasions during the trial. Officer Mollier testified that the informer was Fernando Regalado. Previously appellant’s counsel had requested that Mr. Regalado be placed under the rule for the exclusion of witnesses in the event he appeared in the court room. There was no indication that appellant could not have produced Mr. Re-galado as a witness or that his testimony was for any reason unavailable. In those circumstances, the action of the court in denying appellant’s motion was not error. Stuart v. State, 456 S.W.2d 129 (Tex.Cr. App.1970).

In support of the contention that he should have been allowed to cross-examine the State’s witnesses as to the arrangements or relationships they had with the informer, appellant cites numerous cases which enunciate the rule that an accused has the right to explore the nature of any agreement or relationship between the prosecution and a witness who has an incentive for cooperating with the government. See, for example, United States v. Mayer, 556 F.2d 245 (5th Cir.1977). The rule is based upon the right of the accused to test or attack the credibility and the bias or prejudice of a witness against him. But the rule does not apply in this case because the informer was not a witness. As he was not called to testify, his credibility, bias or prejudice was not in issue and the area sought to be explored by appellant’s counsel clearly would have been irrelevant. See United States v. Ramirez, 533 F.2d 138 (5th Cir. 1976), cert. denied, 429 U.S. 884, 97 S.Ct. 235, 50 L.Ed.2d 165 (1976).

Ground of error number two urges that the trial court should have submitted appellant’s requested jury charges on the defense of entrapment and on accomplice testimony.

If criminal design originates in the mind of an officer and he induces a person to commit a crime which that person would not otherwise have committed except for such inducement, entrapment exists and may constitute a defense. Haywood v. State, 482 S.W.2d 855 (Tex.Cr.App.1972), and cases there cited. However, where the criminal intent originates in the mind of the accused, the fact that the officer furnishes the opportunity for or aids the accused in the commission of the crime affords no defense. Holdaway v. State, 505 S.W.2d 262 (Tex.Cr.App.1974); Haywood v. State, supra. Appellant contends that his entire defense was entrapment and that the jury should have been charged on the law pertaining to that defense. But a charge on a defensive theory is only required when the evidence raises that issue. And if the accused does not testify, and there is no other evidence raising the defense of entrapment, no charge on that defense is required. Bonsai v. State, 502 S.W.2d 813 (Tex.Cr.App.1973); Garcia v. State, 473 S.W.2d 488 (Tex.Cr.App.1971); Beck v. State, 172 Tex.Cr.R. 534, 360 S.W.2d 410 (1962). That was the situation here. Appellant did not testify, the arresting officer’s testimony did not raise the issue of entrapment, and nothing was elicited on cross-examination which could be construed as raising that issue. Under the circumstances, there was no error in refusing the charge on entrapment.

The same applies to the requested charge on accomplice testimony. An undercover agent is not an accomplice so long as he does not bring about the crime but merely obtains evidence to be used against those engaged in the crime. Howery v. State, 528 S.W.2d 230 (Tex.Cr.App.1975); Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974); Gonzales v. State, 505 S.W.2d 267 (Tex.Cr.App.1974). There was no evidence here which raised the issue that Officer Mollier, as judged by the foregoing criterion, was an accomplice to the offense. Consequently, a charge on accomplice testimony was not required.

In ground of error number three appellant argues that it was error to allow, at the punishment stage of the trial, the use of prior convictions for enhancement purposes, because in one of the convictions he was not represented by an attorney and because one of the conviction records revealed extraneous offenses on appellant’s part.

Regarding the first argument, the only evidence that appellant was not represented by an attorney at one of the previous convictions was his testimony at the punishment stage of the trial that he did not know whether he had an attorney or not. The judgment of conviction, however, recites that appellant appeared in person and with his counsel, waived the right to a jury trial, and pleaded guilty. Appellant’s testimony, standing alone, is insufficient to disprove the recitations in the judgment. White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974); Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974); Reeves v. State, 500 S.W.2d 648 (Tex.Cr.App.1973).

The allegation that extraneous offenses were improperly shown relates to a judgment of the U.S. District Court for the Western District of Texas. The judgment, which was properly authenticated, revealed that appellant had been convicted of the offense of importing and concealing narcotic drugs in violation of Section 174, Title 21 of the U.S. Code. In addition, it contained a recitation that appellant “has admitted the charges contained in a supplemental information that he was previously convicted on four separate counts of a violation of federal narcotic or marihuana laws.”

In proving prior convictions for enhancement purposes as authorized by Tex. Code Crim.Proc. art. 37.07, the State may not show the details of the offenses leading to such convictions and may not show extraneous offenses other than final convictions. Lege v. State, 501 S.W.2d 880 (Tex. Cr.App.1973); Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973). Appellant argues that the recitation in the federal court judgment improperly revealed extraneous offenses on his part which were other than final convictions. We do not agree. The judgment was properly authenticated and proven. As such it was presumed to be regular and to speak the truth. The recitation specifically referred to the fact that appellant was “previously convicted” of four counts of narcotics violations. A conviction means a final conviction. A recitation or allegation that a person was “convicted” of an offense has been held sufficient to show the finality of the conviction. See Martinez v. State, 163 Tex.Cr.R. 10, 288 S.W.2d 71 (1956); Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660 (1938); Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393 (1945); Scott v. State, 553 S.W.2d 361 (Tex.Cr.App.1977). As the offenses were shown to be final convictions, there was no error in allowing proof of them. Compare Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977).

Finally, it is asserted that reversible error was committed when two of the State’s witnesses were allowed to testify that appellant’s reputation as a peaceful and law abiding citizen was bad. It is contended that the witnesses were not qualified to so testify because on cross-examination by appellant’s counsel they were unable to give names of specific individuals with whom they had discussed appellant’s reputation or specific conversations regarding his reputation. The witnesses did, however, testify that their opinions were based on general discussions they had with numerous persons concerning appellant and his reputation for being a peaceful and law abiding citizen.

There was no error in allowing the testimony. Although a witness may not testify that an accused’s reputation is bad if he has never heard anyone make adverse comments about it, it is not necessary that the witness be able to name the specific persons who have made such comments. Jacks v. State, 167 Tex.Cr.R. 1, 317 S.W.2d 731 (1958).

All of appellant’s grounds of error have been carefully considered and are overruled.

The judgment is affirmed.


text:
    Ex parte Edwin Paul BRANTLEY.
    No. 57610.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 20, 1978.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

This is a petition for writ of habeas corpus brought pursuant to Article 11.07, V.A. C.C.P.

In 1974 an indictment was returned against petitioner which alleged that on or about the 23rd of August, 1974 petitioner did “knowingly and intentionally by forgery attempt to acquire and obtain possession of a controlled substance from Floyd H. Keller namely, Dilaudid, by then and there presenting a forged prescription. . . . ”

On January 31, 1975, petitioner entered a plea of guilty before the court to this indictment and his punishment was assessed at a fine of $500 plus 10 years confinement in the Texas Department of Corrections. Imposition of sentence was suspended and petitioner was placed on probation. Subsequently, on July 28,1975 petitioner’s probation was revoked and the court reduced appellant’s punishment to 7 years confinement in the Texas Department of Corrections.

Appellant now complains that the indictment on which his conviction was obtained is fundamentally defective for failure to allege an offense against the laws of this State. The record reflects that on December 8, 1977, the trial court found that the attempt provisions of V.T.C.A. Penal Code, Section 15.01(a) do not apply to the offenses contained in the Controlled Substances Act (Article 4476-15, V.A.C.S.), and therefore concluded that petitioner had been convicted on an indictment which failed to allege an offense.

Finding from the record that at the time of filing the subject petition, petitioner was confined pursuant to that conviction of which he now complains, we conclude that this Court has jurisdiction of this cause. See Article 11.07, Section 2(b), V.A.C.C.P.

Article 4476-15, supra, Section 4.09 provides in pertinent part:

“(a) It is unlawful for any person knowingly or intentionally:
(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.”

In Moore v. State, 545 S.W.2d 140 (Tex.Cr. App.1977), this Court held that the allegation that one had made an “attempt to obtain a controlled substance by fraud” failed to charge an offense, because the Controlled Substances Act does not contain a general criminal attempt provision, nor does Section 15.01(a), V.T.C.A. Penal Code apply to the Controlled Substances Act. The reasoning of Moore, supra, that Section 15.01(a) V.T.C.A., Penal Code does not apply to the Controlled Substances Act, is based on the expression of the Penal Code in Section 1.03(b) that “The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws . . . .” [Emphasis supplied.] Because Section 15.-01, supra, is contained in Title 4 of the penal code, this Court concluded that it should not apply to the Controlled Substances Act.

Petitioner in the instant case was alleged to have attempted to obtain a controlled substance by “forgery” rather than “fraud” as in Moore v. State, supra. However, for purposes of disposing of this petition, Moore v. State, supra is directly in point. We accordingly hold that the indictment in this cause is fundamentally defective for failure to allege an offense. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex. Cr.App.1974). Petitioner is presently confined under a void indictment.

Petitioner is ordered discharged from custody resulting from conviction in this cause.

      . Section 15.01(a), supra, provides:
      “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.”


author: ONION, Presiding Judge.

text:
    Ex parte Danny Ray OSBOURN.
    No. 59776.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 20, 1978.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

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

On August 17, 1976 the petitioner was found guilty of delivery of marihuana and his punishment was assessed by the jury at three (3) years’ confinement in the Department of Corrections.

It is petitioner’s contention that the indictment under which he was convicted is fundamentally defective for failure to allege the amount delivered leaving the penalty to be assessed vague and uncertain.

We do not agree that the indictment is fundamentally defective, but an examination of the indictment reveals that it only alleges a misdemeanor. Consequently, we set aside the conviction and remand to the district court to be transferred to a court having jurisdiction of the misdemeanor offense. Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976); Whitaker v. State, 572 S.W.2d 956 (Tex.Cr.App.1978).

Marihuana is a Schedule I controlled substance. Article 4476-15 (Texas Controlled Substances Act), § 2.03(d)(10), V.A.C.S. The knowing and intentional delivery is prohibited by § 4.05(d) of said statute. Except as provided in § 4.05(f) of Article 4476-15, supra, a knowing or intentional delivery of marihuana is a felony of the third degree. § 4.05(e) of Article 4476-15, supra. Under said § 4.05 the knowing or intentional delivery of marihuana is a Class B misdemeanor if the accused delivers one-fourth ounce or less of marihuana without receiving remuneration. Consequently, since the indictment in the instant case failed to allege the amount of marihuana delivered or whether the delivery was for remuneration, it does not allege a felony. Suarez v. State, supra, at p. 603, and cases there cited.

The conviction is set aside and the relief prayed for is granted.

      . Omitting the formal parts, the indictment alleges the petitioner “on or about the 22nd day of February, A.D. 1976, and before the presentment of this indictment, in said County and State, did then and there knowingly and intentionally deliver to DELL HAMPTON a usable quantity of marijuana . . .

      . Nothing herein precludes re-indictment. See footnote one of Suarez v. State, supra, at p. 602.


author: PER CURIAM.

text:
    DUVAL COUNTY et al., Cross-Appellants, v. Homero BARRERA, Cross-Appellee.
    No. 16001.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 26, 1978.
    Rehearing Denied Nov. 15, 1978.
    R. E. Lopez, Jr., Alice, Richard R. Gonzales, Hebbronville, J. G. Hornberger, Laredo, for cross-appellants.
    John F. Ryan, Laredo, for cross-appellee.
   PER CURIAM.

Homero Barrera brought suit individually and as representative of a class of persons similarly situated, all being taxpayers in Zone Three, Duval County, Texas, against Duval County and the other defendants. He alleged that the 1976 tax zoning scheme adopted by defendants was illegal and asked for injunctive relief from the payment of taxes based thereon. The trial court held that the 1976 tax plan was arbitrary and unlawful as contended by appellant, cross-appellee, and grated him in-junctive relief. However, the Court denied relief to the members of the class action finding that they had shown no damage and had waived their objections to the 1976 plan. Homero Barrera as appellant appealed the judgment denying relief to the class. Appellant’s motion for extension of time to file their brief was denied by this Court and his appeal was dismissed on March 3, 1978.

Duval County as cross-appellants allege the trial court erred in granting plaintiff, Homero Barrera, injunctive relief against Duval County for the collection of 1976 taxes. The judgment of the trial court in this case contained a recitation that all parties gave notice of appeal. The record contains no cost bond or notice of appeal on behalf of cross-appellants other than the recitation in the judgment. We dismiss cross-appellants’ appeal.

The provisions concerning notice of appeal in these cases, where such notice is still required after January 1,1976, are found in Rule 354(e), which provides as follows:

(c) When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a notice of appeal which shall be filed with the clerk, within thirty days after rendition of judgment or order overruling motion for new trial (or after such motion is overruled by operation of law.) Such notice shall be sufficient if it state the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or some designated portion thereof. Copy of the notice shall be mailed by counsel for appellant in the same manner as the mailing of copies of the appeal bond. Tex.R.Civ.P. 354(c),

In City of San Antonio v. Rudewick, 567 S.W.2d 38 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.), this Court held that it had no jurisdiction to consider the appeal of the City of San Antonio because the City, being exempt from the requirement of a cost bond, had failed to file a separate notice of appeal as required by Rule 354(c) within thirty days after rendition of judg-mént or order overruling motion for new trial (or after such motion is overruled by operation of law.)

In Rudewick, this Court stated:

If the Supreme Court had intended to preserve the provisions of the old Rule 353(a)(1) permitting additional ways of giving notice of appeal, it could easily have done so by incorporating it in new Rule 354(c), as was done with all other provisions of old Rule 353(a) and 353(b) which were retained by incorporation in the new rule.

Id. at 39.

In the present case the cross-appellants are not required to give bond for cost on appeal. Therefore, Rule 354(c) requires that written notice of appeal filed with the clerk thirty days after rendition of judgment or order overruling motion for new trial. Since a motion for new trial was not filed, Duval County had thirty days after rendition of judgment to file a written notice of appeal with the clerk. The notice of appeal was not given within the time specified. As a result, the appeal has not been perfected, and this Court is without jurisdiction to consider the appeal.

The appeal is dismissed.


author: CADENA, Chief Justice.

text:
    Mrs. Frankie Henry WEED, Appellant, v. BRAZOS ELECTRIC POWER COOPERATIVE, INC., et al., Appellees.
    No. 15925.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 25, 1978.

      Jack Ware, Uvalde, for appellant.
    Jos. Irion Worsham, Dallas, amicus curiae.
    Segrest, Mills & Cameron, Waco, Carlos C. Ashley, Ashley & Ashley, Llano, for ap-pellees.
   CADENA, Chief Justice.

Appellant’s motion for rehearing is overruled. The opinion previously filed in this case is withdrawn and the following is substituted as the opinion of the Court in this case.

Plaintiff, Mrs. Frankie Henry Weed, appeals from a judgment denying her prayer that a coal and lignite lease executed by her on October 25, 1966, naming James F. Gray as lessee, be declared to have terminated. Defendants are Brazos Electric Power Cooperative, Inc., and South Texas Electric Cooperative, Inc., assignees of the rights of the original lessee, and Jessie Gray Wilson, the sole devisee of the original lessee.

Plaintiff alleged that the lease “lacks mutuality in that [it] does not have a term; said term being measured by the will and election of the Lessee,” and that, although she had accepted all delay rentals tendered under the lease until October 24, 1974, she “elects not to further accept delay rentals and elects to terminate [the] lease . . .” She does not allege the breach of any express or implied covenant by defendants, nor does she allege that defendants delayed development of the land for an unreasonable time.

The following facts are stipulated:

1. Plaintiff was paid a valuable consideration, in the form of a cash bonus, for the execution of the lease.
2. As of the date of the stipulations, April 29, 1977, defendants had not commenced production of coal, lignite or other minerals.
3. On June 25, 1975, plaintiff notified the bank where her delay rentals were to be deposited that she did not want any further rentals deposited in her account and that she had so notified defendants.
4. Cashier’s checks in the amount of the delay rentals due October 25, 1975, and October 25,1976, were tendered to plaintiff by defendants “in compliance with the terms of” the lease.
5. Plaintiff “has not accepted any delay rentals for the years commencing October 25, 1975, or October 25,1976, but [has] held the tendered checks in her possession.” The two mentioned checks have been “tendered into the registry of the Court” by plaintiff.
6. Defendants and the original lessee have performed all acts and obligations required of lessee under the terms of the lease to keep such lease in full force and effect.

The granting clause of the lease in question purports to convey the described lands “for the purpose of . producing . . . coal, lignite, clay and other minerals (except oil and gas).” Except for the description of the minerals which are to be produced, the granting clause is, for all practical purposes, the same as that found in the usual form of oil and gas lease. However, there is a significant difference between the habendum clause found in the ordinary oil and gas lease and that which is contained in the lease before us. In the usual oil and gas lease, the habendum clause provides that the lease is to remain in force and effect for a specified number of years (commonly called the “primary,” “fixed” or “exploratory” term), and so long thereafter as there is production of oil and gas in paying quantities. Such lease usually contemplates the commencement of drilling operations within one year but provides that lessee may, without initiating such drilling operation, continue the lease in effect for the entire primary term by payment of delay rentals. As our Supreme Court said in Fox v. Thoreson, 398 S.W.2d 88, 91 (Tex.1966), the primary term designates the period of time at which the estate granted will terminate unless it is extended by some other provision of the lease, usually a provision to the effect that the lease will remain in force so long as there is production of oil or gas in paying quantities. The habendum clause in the lease executed by plaintiff provides that the lease shall remain in force “so long as the rentals hereinafter provided for are paid and/or so long as coal, lignite, clay and other minerals (except oil and gas) are produced from” the described lands.

In the ordinary oil and gas lease which incorporates a primary term, the lessor is assured that at the expiration of the specified time he will be reaping the benefits of production or the estate will revert to him. The lease involved in this case contains no primary term, and the effect of the language of the habendum clause is to allow lessee to continue the lease in force indefinitely merely by paying delay rentals without commencing development of the minerals. If the language is given its effect, plaintiff is in the unhappy position of being unable to point to a definite date on which she will either be receiving royalties or will again become the owner of the estate granted.

In Fox, supra, the Supreme Court defined a “no term” lease as one “which does not impose an obligation on a lessee to drill a well or to produce oil or gas or other minerals as a condition [precedent] to the continued life of the lease indefinitely.” 398 S.W.2d 88, 90 (Tex.1966). Chief Justice Calvert then added:

The no term lease, in common use in a past era in the oil and gas industry but now all but extinct, usually imposes an obligation to drill a well, but * * * permits the lessee to forego that obligation and keep the lease alive indefinitely by the payment of rentals. * * * As examples, see Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566 (1923); Texas Co. v. Davis, 113 Tex. 321, 254 S.W. 304, 255 S.W. 601 (1923); Rosson v. Bennett, Tex.Civ.App., 294 S.W. 660 (1927) no writ history.

398 S.W.2d at 90-91 (1966). The opinion in Fox is troublesome because at one place it contains language to the effect that a no term lease “does not impose an obligation on a lessee to drill a well or to produce oil or gas or other minerals”; this language is followed in the next sentence by the statement that the no term lease “usually imposes an obligation to drill a well.” Id. at 90-91.

The significant distinction between a no term lease and a lease containing a primary term does not depend on the presence or absence of language creating an “obligation” to drill or commence operations. Under the “unless” form of drilling clause which is universally used today, the lessee is under no duty to drill, or even to pay delay rentals. 2 Summers, The Law of Oil and Gas, § 337 at 394-95 (1959). Insofar as Fox suggests that the absence or presence of an “obligation” to drill is determinative in distinguishing between a no term lease and the usual form of lease which contains a primary term, the suggestion must be disregarded, since neither form of lease imposes a duty to drill or to commence operations. However, it is clear that in Fox the Supreme Court was not using the term “obligation” in the sense of “duty.” When the Court, in apparent contradiction of its statement that a no term lease imposes no obligation to drill, observed that a no term lease imposes an obligation to drill, but permitted lessee to avoid such obligation by paying rental, it was not speaking of an “obligation” which imposed on the lessee a duty to perform or to be liable for breach of a contractual duty. The Court spoke of the obligation to drill or to produce “as a condition to the continued life of the lease indefinitely,” and referred to the fact that, instead of drilling, the lessee in a no term lease could “keep the lease alive indefinitely by the payment of rentals.” 398 S.W.2d at 90-91. The hallmark of a primary term lease is that it establishes a period of time at the end of which the estate granted will terminate unless production has been achieved. It is the absence of language which provides for termination of a lease at a specified time unless minerals are being produced which distinguishes the no term lease from a lease containing a primary term.

We, therefore, agree with plaintiff’s contention that the lease before us is a no term lease.

Plaintiff, relying on National Oil & Pipe Line Co. v. Teel, 95 Tex. 586, 68 S.W. 979 (1902), argues that, because of the lack of a primary term, the lease in question lacks mutuality, is a unilateral contract, and is necessarily “void” because it does not obligate lessee to produce minerals or to pay rentals. In Teel, the instrument, after reciting that Teel “granted, bargained, sold, and conveyed” to Nicholson “all the oil and gas and coal and other minerals in and under” the lands described in the instrument, provided:

To have and to hold . . until [Nicholson, his] heirs and assigns, on the following conditions: ... In case operations for either drilling a well for oil or mining for coal or other minerals is not begun and prosecuted with due diligence within two (2) years from this date, then this grant shall immediately become null and void as to both parties: provided, that [Nicholson] may prevent such forfeiture from year to year, and no longer, by paying in advance $100 . . . , until such well is completed, or until shipments from such mine have begun.

67 S.W. 545, 546 (Tex.Civ.App.) aff'd, 95 Tex. 586, 68 S.W. 979 (1902). The Supreme Court held that the instrument passed no interest in the land, but was a mere contract “for an option” by which Nicholson might acquire such interest. The Court said:

A naked agreement, by which one promises to convey to another an interest in land in consideration of money to be paid or acts to be performed by such other, but which does not bind the other to pay or perform the consideration, as the case may be, cannot be enforced. In such case there is a want of mutuality in the agreement. The one party promises to do something; the other does not promise absolutely to do anything; hence there is no consideration to support a contract, and it is void. On the other hand, a promise to give an option is valid if supported by an independent consideration.

95 Tex. 586, 591, 68 S.W. 979, 980 (1902).

Plaintiff contends that since Teel involved a no term lease it is controlling in the case before us, requiring the conclusion that the no term lease executed by plaintiff is “void.” We disagree.

In Deaton v. Rush, 113 Tex. 176, 197, 252 S.W. 1025, 1033 (1923), the Court suggested the possibility that the Teel conclusion “rested upon the theory that only a nominal consideration was paid and that the real consideration was development which could not be enforced by the lessor.” In the case before us, plaintiff was, according to the stipulation of the parties, paid a cash bonus in addition to the consideration of $10.00 mentioned in the lease instrument. Plaintiff does riot contend that the cash bonus constituted only a “nominal” consideration. Irrespective of the validity of the distinction suggested in Deaton, it is clear that Teel cannot be considered controlling today. The Deaton opinion points out that if Teel was not overruled by the case of Gilmore v. O’Neil, 107 Tex. 18, 173 S.W. 203 (1915), it was at least ignored in that later case. The Deaton opinion concludes: “Without elaborating our views on the matter, we think that a lease conveying oil and gas in place for a valuable consideration with the right to enter and appropriate creates and conveys to the lessee an estate in the land itself and is not a mere option.” 113 Tex. at 198, 252 S.W. at 1033. It is significant that the lease in Deaton contained language to the effect that the lessee had the “right or option” either to surrender the lease at any time by making certain payments “ ‘or to continue the grant in force and effect and prevent its forfeiture from time to time, by [paying delay rentals] or beginning and drilling wells . . . 113 Tex. at 186, 252 S.W. at 1028. Further, Teel cannot be given controlling effect in this case in the face of the decision in Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290 (1923). In that case, lessee agreed to begin “prospect work” within 18 months from the date of the lease. However, this “agreement” was clearly illusory, since the instrument went on to provide that if lessee was not “prospecting” on the premises at the termination of the 18-month period, lessee was to pay lessor $1.00 per acre “for all the time [lessee] shall keep or hold said lease on said land after 18 months has [sic] expired.” 113 Tex. at 165, 254 S.W. at 291. The Supreme Court, after careful examination of the problems involved, unequivocally held that the instrument conveyed, at the time of its execution, a fee simple determinable in the oil and gas in place.

The situation in Stephens County was no different, from the viewpoint of lessor, than the situation of plaintiff in this case. Despite the language to the effect that lessee agreed to begin operations within 18 months, it is clear that lessee was under no obligation to drill within such period, since in case of its failure to drill it could keep the lease in force by paying rentals. The language of that lease makes it clear that lessee was under no duty to do either. Further, as in the case before us, the lease in Stephens County contained no language prohibiting the postponement of drilling operations indefinitely by payment of delay rentals. Stated simply, the lease in Stephens County, like the lease in Teel and the lease executed by plaintiff in this case, was a “no term” lease which contained no language imposing on lessee the duty to either drill or pay rentals, while permitting lessee to keep the lease in effect indefinitely by simply paying rental. Teel held that such an instrument conveyed no interest in the land and amounted to no more than an unenforceable option. Stephens County is a definitive holding that such an instrument effects a present conveyance of a fee simple determinable estate in the minerals. The impossibility of reconciling the two holdings is patent. The “option” rationale, advanced with no citation of supporting authority in Teel, must be rejected in favor of the conclusion reached, following detailed analysis of the problem, in Stephens County.

The suggestion that Stephens County involved a lease containing a primary term, rather than a no term lease, cannot be seriously considered. In Fox, the Supreme Court expressly referred to Stephens County as an “example” of a no term lease. 398 S.W.2d at 91. The other two cases mentioned by the Supreme Court in Fox as examples of no term leases are Texas Co. v. Davis, 113 Tex. 321, 254 S.W. 304, 255 S.W. 601 (1923), and Rosson v. Bennett, 294 S.W. 660 (Tex.Civ.App.—Waco 1927, no writ). Both of these decisions reached results incompatible with the “option” rationale applied in Teel.

In Davis, the lease, following language to the effect that the grant would terminate if the drilling of a well was not commenced within two years, provided that lessee “may prevent such forfeiture ... by paying to [lessor] . . . $10.00 per year, until such well is commenced or until shipments from such mine have begun . . ” 113 Tex. at 327, 254 S.W. at 305. The Supreme Court held that the instrument conveyed a determinable fee, relying on Stephens County. Id. at 331, 254 S.W. at 306. On rehearing, the Supreme Court pointed out that the provision for annual rentals permitted lessee to defer drilling for no more than a reasonable time. Id. at 336, 255 S.W. at 601.

In Rosson, the lease provided that if no well were commenced within the first year, the “ ‘lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay ... to the lessor . the sum of one dollar per year . . . , which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date.’ ” The lease further provided, “ ‘In like manner and upon all like payments . the commencement of a well may be further deferred for like periods of the same number of months successively.’ ” 294 S.W. at 661. Lessor in Rosson contended that the provision concerning extension of the lease by payment of rentals was unenforceable “because it is unilateral, in that it attempts to bind Pessor] to accept such annual rentals and consent to a renewal of the lease for each such period successively, but does not bind Pessee] to pay such rentals.” Id. at 662. The court rejected this contention, saying:

[The] lease was granted in consideration of a cash payment of $500.00, [and it recites] that such payment should cover not only the specific term of three years provided for the continuance thereof, but also the option of extending the same in the manner provided by said renewal provision. A contract for the grant of an option is necessarily unilateral. Its very purpose is to enable the grantee to exercise the particular right therein contracted for or not, as he may elect, and its value consists in that privilege.

Id. at 662. The court then held that the effect of the lease was to convey a fee simple determinable in the minerals, and said that the provision permitting extensions by payment of rentals should be construed as authorizing only reasonable delay. Id.

The holdings in Davis and Rosson that provisions for successive extensions of a lease by payment of rentals, without language limiting the number of such extensions, does not authorize lessee to delay development unreasonably. This proposition finds full support in the language of the Supreme Court in Stephens County, where the Supreme Court said that lessee could keep the lease alive “for a reasonable time” by payment of the rentals. 113 Tex. at 166, 254 S.W. at 291.

As already pointed out, plaintiff did not allege in her pleadings that lessees had delayed development of the land for an unreasonable period of time. Her brief in this Court makes no such contention. Whether a lessee has unreasonably delayed commencement of operations necessarily depends on all the facts and circumstances of the case. We cannot hold that, as a matter of law, the delay in this case has been unreasonable, and plaintiff does not so argue. Her sole contention is that, under Teel, the instrument executed by her amounts to no more than an unenforceable option. We consider this to be an untenable position in view of the holdings in Stephens County and the subsequent holdings in Davis and Rosson, all of which, according to Fox, involved no term leases.

We do not agree with plaintiff’s contention that Reed v. Wylie, 554 S.W.2d 169 (Tex.1977) must be construed as a “pronouncement to the effect that coal and lignite leases are not governed solely by the principles of oil and gas law.” Reed involved neither an oil and gas lease nor a coal lease. The Court was construing language, in a conveyance reserving an undivided interest in “ ‘all oil, gas and other minerals.’ ” The sole holding was that the clause did not reserve to the grantor any interest in coal. The Court was careful to point out that its conclusion would have been different if the instrument had expressly reserved coal. The opinion contains no language suggesting that the nature of the estate conveyed by an instrument depends on whether it covers merely “oil, gas and other minerals” or whether it covers coal and lignite. Plaintiff concedes that the issue in Reed “is not identical to the issue before” us in this case. We find there is no similarity between the question involved in Reed and the question now before us.

Since plaintiff’s claim for relief is based solely on the contention that the lease in question is unenforceable because of want of mutuality and lack of consideration, the judgment of the trial court must be affirmed.

      . The provisions of the instrument in Teel are taken from the opinion of the Court of Civil Appeals in that case, 67 S.W. 545, 546 (1902), since the opinion of the Supreme Court does not set out the provisions of the instrument.