author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    James G. PRESSWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 52876.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Rehearing Denied April 6, 1977.

      Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds, Joe McNeff, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of possessing a usable quantity of marihuana of less than two ounces. The punishment, assessed by the court, was a fine of $150.

The appellant contends that the evidence was insufficient to establish his unlawful possession of the marihuana. We agree and reverse.

Dallas police officer R. A. Keesy testified that he observed the automobile appellant was driving make an erratic change of lanes at approximately 8:50 p. m. on April 24, 1974. Appellant then drove into the parking lot of a liquor store. Officer Keesy followed the automobile into the parking lot, approached the automobile, and asked appellant for his driver’s license. As Officer Keesy was approaching, the appellant got out of the automobile. Keesy observed a rifle on the floorboard of the car. The officer removed the rifle from the automobile and took the appellant back to his police car. Officer Keesy radioed for assistance and Officer James Kuhn arrived shortly thereafter.

As Officer Keesy and Officer Kuhn were questioning the appellant in the police car, Keesy observed the passenger act “as if he were hiding something underneath the front seat.” Keesy then brought the passenger back to the police car. He then searched the automobile and found a pistol underneath the front seat. Officer Keesy then arrested the appellant and his passenger for unlawfully carrying a pistol. A wrecker was called to tow the automobile.

Officer Kuhn then went back to the automobile and continued searching it. Inside the glove compartment of the automobile, he found two plastic bags of marihuana wrapped inside of a bank bag. Officer Kuhn brought the marihuana back to the police car. The officers then questioned the appellant and his passenger, saying, “Whose is it?” The court overruled appellant’s objection to the testimony of his answer: “Both of them are mine. My buddy doesn’t know anything about them,” on the grounds that the answer was “res gestae.”

Appellant’s statement may not be used to prove that he knowingly possessed the marihuana. The record does not reflect that he was properly advised of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Article 38.22, V.A.C.C.P. His statement did not lead to the discovery of evidence tending to establish his guilt. Article 38.22, Sec. 1(e), V.A.C.C.P. There was no predicate laid to show that this statement was a spontaneous utterance. Article 38.22, Sec. 1(e), supra.

The only evidence in the record tending to establish possession was merely that the appellant was the driver of the automobile at the time Officer Keesy approached it. The record does not reflect how long the appellant was in possession and control of the automobile, nor does it show to whom the automobile belonged. The marihuana was found wrapped inside a bank bag which was in the glove compartment of the automobile. There was no marihuana found on either the appellant or his passenger. There is no testimony indicating that either the appellant or his passenger was under the influence of marihuana. Neither Officer Keesy nor Officer Kuhn testified that they smelled the odor of marihuana in or around the automobile.

“Where there is an absence of direct evidence that the accused was in exclusive possession of a narcotic, then possession, if any, must be proved by circumstantial evidence. (Citation).” Abercrombie v. State, 528 S.W.2d 578, 587 (Tex.Cr.App.1974, On State’s Motion for Rehearing). We do not feel that the circumstances presented exclude to a moral certainty every other reasonable hypothesis except that of the appellant’s own unlawful possession. “Certainly, it is not unreasonable to assume that marihuana had been possessed at some earlier point in time by a person or persons occupying that automobile.” Taylor v. State, 505 S.W.2d 927, 929 (Tex.Cr.App.1974).

This case resembles that of Woolridge v. State, 514 S.W.2d 257 (Tex.Cr.App.1974). In that case we held that the evidence failed to show any connection between the defendant and the glove compartment area of the borrowed vehicle he was driving. Admittedly, the record in the instant case does not affirmatively reflect that the appellant’s automobile was a borrowed one. However, it does not affirmatively reflect that he owned the automobile either. In Woolridge, the marihuana was found in the glove compartment, as in the instant case. The police inspected the vehicle several times before they found the marihuana, as in the instant case; no odor of marihuana was present, nor were seeds, papers or particles of marihuana found on the defendant, as in the instant case.

In Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972), we held that the evidence was insufficient to establish the defendant’s possession of the marihuana because the record was “. . . devoid of any competent evidence, which would have shown that the [defendant] knew or should have known of the presence of the marihuana; that the marihuana was in plain view, or even that the marihuana was conveniently accessible to the [defendant].” Id., at 78.

In Harvey, the defendant was seated in the right rear seat of the automobile. The marihuana was found on the dashboard directly in front of the driver’s seat where a person by the name of Jackson had been sitting when the vehicle was stopped. The contraband was in a matchbox which was hidden in a large Kleenex box. The officers that testified never observed either box in defendant’s possession, nor were defendant’s fingerprints found on either box. The officers did not testify that they smelled marihuana odor or smoke nor that, in their opinion, either Jackson or the defendant was under the influence of marijuana. Ownership of the vehicle was not established although the car had been impounded.

Discounting appellant’s admission of possession, as we must, we do not feel that the State has sustained their “. burden of establishing, by competent evidence, the affirmative link between the accused and the contraband.” Payne v. State, 480 S.W.2d 732, 734 (Tex.Cr.App.1972); accord, Armstrong v. State, 542 S.W.2d 119 (Tex.Cr.App.1976).

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

Judge Dally, a commissioner for this Court, submitted an opinion affirming this conviction. Omitting some of the discussion not pertinent to answering the majority, his opinion is adopted in substance as follows:

“While Officer Keesy and Officer Kuhn were questioning the appellant in the police car, Keesy saw the passenger in the appellant’s automobile bend over out of sight ‘as if he was hiding something underneath the front seat.’ Officer Keesy removed the passenger from the automobile and patted him for weapons. After the officer placed the passenger in the police car he searched the automobile and found a pistol underneath the front seat. The officer placed both men under arrest for unlawfully carrying the pistol, then called a wrecker to tow the automobile.

“Officer Kuhn testified that he went back to the automobile to continue the search. Officer Kuhn found two plastic ‘baggies’ of marihuana inside a bank bag which was in the glove compartment of the automobile. Officer Kuhn brought the marihuana back to the police car. Officer Keesy said that ‘[w]e’d already given both defendant’s, both gentlemen their rights and just put a question out, saying, “Whose is it?” ’ Appellant objected that the statement would be hearsay and an inadmissible oral confession. The court overruled his objection stating that the statement was ‘res gestae.’ Thereafter, the officer was permitted to testify that the appellant answered, ‘Both of them are mine. My buddy there doesn’t know anything about them.’

“The record does not show that the appellant was properly advised as to his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Article 38.22, V.A.C.C.P. Further, since appellant’s statement did not lead to the discovery of any evidence conducing to establish guilt, it would be admissible under Article 38.22, Section 1(f), V.A.C.C.P. The State made no effort to lay a proper predicate to show that appellant’s statement was a spontaneous utterance. See Article 38.22, Section 1(f), supra. Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974). Cf. Brown v. Beto, 468 F.2d 1284 (5th Cir.1972). Therefore, appellant’s statement may not be used to prove that he knowingly possessed the marihuana.

“To establish unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); 57 A.L.R.3d 1314; Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972).

“Possession need not be exclusive, and evidence which shows that the accused jointly possessed the contraband with another is sufficient. However, proof of mere presence at a place where contraband is being used or possessed does not, standing alone, justify a finding of joint possession. ‘Possession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed.’ Brown v. State, 481 P.2d 475 (Okla.Cr.1971). Whether the case is tried on the theory of joint or sole possession, the evidence must affirmatively link the accused to the drug he is alleged to have possessed. This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control. Hernandez v. State, supra; Payne v. State, supra; Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972); Ochs v. State, 543 S.W.2d 355 (Tex.Cr.App.1976); Annot., 57 A.L.R.3d 1319 (1974).

“Appellant contends that the evidence is insufficient to show that he possessed the marihuana because mere presence at the scene of the crime or at the place where the contraband is found is insufficient to prove he possessed the marihuana. However, appellant was not merely present in the automobile, but was the driver in possession and control of the automobile. * * * [T]he evidence is sufficient to support the conviction. Terill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976); Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1971); Dabbs v. State, 507 S.W.2d 567 (Tex.Cr.App.1974); Hernandez v. State, supra; Duff v. State, [Tex.Cr.App.] [546] S.W.2d [283] (No. 51,681, on motion for rehearing, January 19, 1977); [State v. Wikum ] Wikum v. State, [6 Or.App. 405] 488 P.2d 815 (Or.App.1971); Corrao v. State [154 Ind.App. 525], 290 N.E.2d 484 (Ind.App.1972).”

The judgment should be affirmed.

ODOM, J., joins in this dissent.


source: Caselaw Access Project

author: GREEN, Commissioner.

license: Public Domain

text:
    Harlan Cleere CODY, Appellant, v. The STATE of Texas, Appellee.
    No. 52061.
    Court of Criminal Appeals of Texas.
    March 23, 1977.

      R. William Wood, Denton, for appellant.
    John Lawhon, County Atty. and Mervin B. Waage, Asst. County Atty., Denton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of the misdemeanor offense of driving while intoxicated. Punishment was assessed by the court at a fine of fifty dollars and thirty days in jail, the jail time being probated for a period of six months.

We note that the order of the court assessing the punishment and setting forth the terms of probation erroneously recites that the appellant “pleaded guilty to the information herein, waived trial by jury, and submitted this cause to the COURT .. ” The record establishes that the trial was before a jury on a plea of not guilty, and that the verdict of guilty was returned by the jury. The order is reformed to reflect those facts.

The State’s contention that this appeal is moot and should be dismissed because the record reflects that appellant has paid the fine and court costs assessed by the court is without merit. Fouke v. State, Tex.Cr.App., 529 S.W.2d 772, relied upon by the State, may be distinguished from the present case, in that in Fouke the sole punishment was a fine of $25.00 and court costs, and the fine and costs were paid voluntarily. This Court said that:

“The appeal is moot because the appellant has voluntarily paid the fine and costs assessed; he voluntarily elected to satisfy the judgment; there is nothing from which to appeal. It has long been the rule in this state that the voluntary payment of the fine in a misdemeanor case renders the appeal from the judgment in that case moot,” citing a number of eases.

In each of the cases cited as authority for this statement, the punishment assessed had been fully satisfied, so that there was nothing remaining from which to appeal.

In the instant case, the record reflects that the fine and costs were paid after a writ of commitment was issued ordering the arrest of appellant “and him safely keep until such fine and costs, amounting to 104.-30 Dollars, are fully paid and discharged by law . . .” The court’s docket sheet contains the order for the writ of commitment entered September 10, 1975, and both the docket entry and the copy of the writ included in the transcript show that execution was stayed until September 10, 1975, “when defendant shall be arrested unless fine and court costs sooner satisfied.” A certificate of the sheriff contained in the record reflects that the fine and court costs were paid September 12, 1975. Under the circumstances, we do not consider this to reflect a voluntary payment.

Additionally, appellant has not elected to satisfy the punishment of thirty days in jail probated for six months. He timely gave notice of appeal from the court’s order. The collateral legal consequences of the unsatisfied punishment are not minimal, as were those in Fouke v. State, supra. See Ex parte Langston, 510 S.W.2d 603, Tex.Cr.App.; Ex parte Burt, 499 S.W.2d 109, Tex.Cr.App.

We conclude that the appeal is not moot.

In his second ground of error, appellant contends that the court reversibly erred in admitting in evidence the results of a breathalyzer test and permitting the jury to consider the same in its deliberation. He contends that there is no evidence that the chemicals used in such test were the correct chemicals or used in the proper proportion to insure an accurate test.

Officer Bryan testified that about 9:15 p. m. on January 25, 1975, he arrested appellant following a one-car accident and charged him with driving a motor vehicle upon a public highway while intoxicated. Officer Bryan testified that in his opinion appellant was under the influence of intoxicating liquor. Appellant testified that during that evening he had drunk two cans of beer, but denied being intoxicated. As rebuttal evidence, the State placed Officer Gene Green on the stand. Green testified that he had successfully completed a course in the instruction and operation of “the breathalyzer instrument” conducted by the Texas Department of Public Safety and that he was a certified breathalyzer operator, having been certified by the Department of Public Safety. He stated that at 10:00 p. m. on January 25th he administered the test on appellant, using a control ampule furnished by the Department of Public Safety. He related the eight step procedure he used, and a copy of the check list styled “Texas Department of Public Safety, Breathalyzer Operational Check List for Harlan Cleere Cody” was admitted in evidence. He was then permitted to testify that the test showed 0.13% alcohol, over appellant’s objection, as follows:

“Your Honor, we will object to him giving any results of the test for the reason he is not qualified to give it, the State not having laid the predicate, or explaining that he knows the compounding of the chemicals, that they were compounded correctly, or that he understands and knows how the test works, and then in support of the objection we would cite to the court the cases of Hill versus State, and French versus State.”

Prior to the answer of the result of the test, appellant asked to take him on voir dire, but his request was refused by the court, and, after the above objection was overruled, the witness answered as above stated.

On cross-examination of Green, the following proceedings occurred:

“By Mr. Wood (appellant):
“Q Do you know what kind of chemicals are used in connection with the breath test?
“MR. WAAGE (State): Your Honor, I believe that he has stated that he is not qualified to testify about those chemicals.
“COURT: I overrule the objection, counsel is not bound by his answers on direct examination.
“Q Do you know what kind of chemicals are used in the breath—with the breathalyzer machine?
“A No, sir.
“Q Do you know what the machine purports to measure?
“A I have a table, but, no, sir, not by— no, sir, this is something that the chemist teaches and this is something that he works out; no.
“Q So-
“A —In other words, I could read it out of a book but that is it.
“Q But you would be just taking the word of the book then as to what that is?
“A Right, uh-huh. No, I don’t know. “Q So far as the result that you testified that the machine gave, are you saying that you don’t know what that means, as far as what it measures?
“A It is thirteen hundredths point alcohol in his blood per—I don’t know.”

On redirect, he testified:

“Q Let me ask the question I asked on direct examination, are you telling the jury that you know anything about the chemistry behind this test?
“A No, sir, I do not.”

Officer Green was the only witness who testified concerning the breathalyzer test. He was not a chemist. As a certified operator, he was qualified to operate the breathalyzer. As stated in French v. State, 484 S.W.2d 716, Tex.Cr.App.:

“. . . an officer may administer a breath test even though he is not otherwise qualified to interpret the results, Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499 (1953); Shawhan v. State, 393 S.W.2d 921 (Tex.Cr.App.1965), and the standards required to qualify one to administer the test are far less than those qualified to interpret the results. Fluitt v. State, 169 Tex.Cr.R. 259, 333 S.W.2d 144 (1960). See, now, Article 802f, supra.”

Officer Green admitted that he had not received instructions in the preparation or analysis of chemicals and knew nothing about the chemicals used in the test. No chemist or other witness qualified to testify concerning the chemicals used in the test or to interpret the results testified in this case. There was no evidence concerning the use of properly compounded chemicals. See Reyna v. State, 508 S.W.2d 632, Tex.Cr. App.; French v. State, supra.

The jury was instructed that:

“Our law further provides that if at any time a person shall have one-tenth of one percent (0.10) or more of alcohol in his blood by weight, it may be presumed he was at such time under the influence of intoxicating liquor.”

This Court has consistently held that the necessary predicate which the State must prove in order to introduce over proper objection the result of the accused’s breathalyzer test includes:

(1) the use of properly compounded chemicals;
(2) the existence of periodic supervision over the machine and operation by one who understands scientific theory of the machine;
(3) proof of the result of the test by a witness or witnesses qualified to translate and interpret such result so as to eliminate hearsay.

See Reyna v. State, supra; Palafox v. State, 509 S.W.2d 846, Tex.Cr.App.; French v. State, supra; Hill v. State, 158 Tex.Cr. App. 313, 256 S.W.2d 93.

We conclude, as we did in Reyna, supra, French, supra, and Hill, supra, under similar fact situations, that the State failed to meet the first requirement stated above; i. e., to introduce proof of properly compounded chemicals used in the breathalyzer test given appellant. The court reversibly-erred in overruling appellant’s objection and admitting the evidence of the result of the test.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

DOUGLAS and ODOM, JJ., dissent.

      . The offense occurred January 25, 1975, and the trial was on September 10, 1975. Art. 802f, V.A.P.C., was amended (effective June 1, 1971) to provide that 0.10 percent or more by weight of alcohol in a person’s blood is prima facie proof of the fact that a person is under the influence of intoxicating liquor. (Arts. 802d to 802f were transferred pursuant to Sec. 5 of Acts of 1973, 63rd Leg., p. 995, ch. 399 to Arts. 6701/-3 to 6701.1-5, V.A. Civ.St.)


author: DALLY, Commissioner.

text:
    Ex parte Carlos GARCIA.
    No. 53484.
    Court of Criminal Appeals of Texas.
    March 23, 1977.
    Larry J. Adams, Corpus Christi, Court-appointed, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction habeas corpus proceeding. See Article 11.07, V.A.C.C.P. and Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

Pursuant to an order of this Court petitioner was granted an evidentiary hearing in the convicting court to determine whether he had been denied the right of appeal. The hearing has now been held, and that record is before this Court. It contains the findings of fact and conclusions of law made in the trial court.

The court’s findings of fact and conclusions of law are as follows:

“After considering the pleading, the evidence, and the arguments of counsel, the Court makes the following findings of fact:
“1. On September 15,1971, a jury convicted Petitioner of Assault With Intent to Murder and assessed his punishment at 23 years in the penitentiary in cause number 13926 in the 105th District Court of Nueces County, Texas.
“2. Petitioner was represented by retained counsel, Neal Dancer, during his trial.
“3. On September 23, 1971, a motion for new trial was filed by Petitioner. That motion was signed by the Petitioner but not by his counsel.
. “4. Defense counsel obtained an order setting the motion for new trial for a hearing on October 7, 1971.
“5. Petitioner was sentenced on October 7, 1971.
“6. There was no hearing on the motion for new trial prior to sentencing.
“7. At the time of sentencing, neither Petitioner or his counsel objected to Petitioner being sentenced without a hearing on his motion for new trial.
“8. At the time of sentencing Petitioner knew of his right to appeal.
“9. At Petitioner’s request, oral notice of appeal was given on October 7, 1971, after he was sentenced.
“10. After sentencing, Petitioner was informed by the Trial Court of his right to appeal and of his right to have counsel appointed to represent him if he was indigent. Concerning this fact, the Trial Court relies on the testimony of defense counsel and rejects that of Petitioner.
“11. Petitioner at the time of sentencing, was not indigent.
“12. At the time of sentencing, Petitioner did not intend to appeal his case.
“13. Petitioner’s counsel gave notice of appeal to protect Petitioner’s rights in case Petitioner changed his mind and decided to appeal.
“14. Petitioner made no further contact with his counsel after October 7, 1971. Concerning this fact, the Trial Court relies on the testimony of defense counsel and rejects that of Petitioner.
“15. Petitioner did not retain his trial counsel, Neal Dancer, to represent him on appeal. Defense counsel never told Petitioner that he would represent him on appeal. Petitioner knew that Mr. Dancer was not retained to represent him on appeal. Concerning these facts, the Trial Court relies on the testimony of defense counsel and rejects that of Petitioner.
“16. All money paid to defense counsel was for representation of Petitioner during the trial of his case through sentencing and no money was paid to defense counsel to represent Petitioner on appeal. Concerning this fact, the Trial Court relies on the testimony of defense counsel and rejects that of Petitioner.
“17. Petitioner’s first application for writ of habeas corpus filed on November 26,1975, was an attempt to perfect a late appeal of his case.
“18. Petitioner did not complain of any failure of his retained counsel to perfect an appeal until the filing of his second application for writ of habeas corpus dated May 2, 1976.
“On the basis of these findings, the Court concludes (1) that Appellant waived his right to appeal, (2) that Appellant was not deprived of his right to appeal and (3) that Appellant was not deprived of assistance of counsel to perfect his appeal.
“Signed on this date: September 20. 1976”

The findings of fact and conclusions of law were conscientiously made by the trial court. However, this Court is not bound by the findings of the trial court in a habeas corpus proceeding such as this. Ex parte Davila, 530 S.W.2d 543 (Tex.Cr.App.1975); Ex parte Young, 479 S.W.2d 45 (Tex.Cr.App.1972), and the cases there cited.

From our review of the evidence we find that the court’s finding number eleven, that the petitioner was not indigent at the time he gave notice of appeal, is not supported by the evidence. The petitioner testified that he was indigent at the time he gave notice of appeal. The petitioner’s counsel, who was retained for the trial of the case, stated that he would only be guessing, but that he thought the petitioner was indigent at the time notice of appeal was given. The evidence shows that retained counsel was paid considerably less than one-half of the fee which he had set for the trial of the case, and this amount of the fee was paid in installments by the petitioner and by members of his family over a period of time prior to trial. The record also reflects that the petitioner was in jail at the time of giving notice of appeal. There is no evidence in the record concerning the petitioner’s employment or that he had any property whatsoever at the time of trial and at the time that he gave notice of appeal. Based on this record we must find that there is no evidence that the petitioner was other than indigent at the time that he gave notice of appeal.

We find it difficult to reconcile finding of fact nine, which states that at the petitioner’s request oral notice of appeal was given on October 7, 1971, after he was sentenced; and finding of fact number twelve, that at the time of sentencing petitioner did not intend to appeal his case. Finding of fact number thirteen does not satisfactorily resolve this apparent conflict; we find that the petitioner by giving notice of appeal intended to appeal from the judgment of conviction at the time he gave notice of appeal.

Since it appears that the petitioner was indigent at the time he gave notice of appeal, he was entitled to have a free record for his appeal and counsel appointed to represent him on appeal. Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Perryman v. State, 519 S.W.2d 438 (Tex.Cr.App.1975); Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Roberson v. State, 538 S.W.2d 788 (Tex.Cr.App.1976).

Although the court made no finding as to whether a record for delayed appeal can be furnished, stipulations in the record made in open court by the State and the petitioner and which were acknowledged by the court indicate that it is impossible at this time to furnish a record on appeal. Since the petitioner was deprived of an appeal and the State cannot now afford him a meaningful delayed appeal, the petitioner is entitled to a new trial. Ex parte Young, 517 S.W.2d 288 (Tex.Cr.App.1974); Ex parte Coleman, 487 S.W.2d 119 (Tex.Cr.App.1972); Ex parte Pugh, 465 S.W.2d 946 (Tex.Cr.App.1971); Ex parte Moreland, 456 S.W.2d 949 (Tex.Cr.App.1970).

The relief sought is granted and the petitioner is remanded to the Sheriff of Nueces County to again stand trial under the indictment in Cause No. 13,926 in the 105th District Court.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 53915.
    Court of Criminal Appeals of Texas.
    March 23, 1977.

      Stephen M. Orr, Austin, for appellant.
    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 final judgment forfeiting a bail bond.

We must reverse this forfeiture because there is no judgment nisi to support the final judgment. The record contains a judgment nisi entered in the 147th District Court of Travis County. It states that the principal failed to appear in that court on September 15, 1975.

The final judgment, however, was entered by the 167th District Court of Travis County. It states that no sufficient cause was demonstrated by the principal for his failure to appear in “this court” on September 15, 1975. There is, however, no judgment nisi in the record stating that the principal failed to appear in the 167th District Court on September 15, 1975.

The recitations of the final judgment are not supported by the judgment nisi. The situation before us is similar to that confronted in Bonds v. State, 162 Tex.Cr.R. 419, 286 S.W.2d 313. There, we observed:

“The variance between the judgment nisi and the scire facias (citation) is apparent, because the bond was conditioned that the principal make his appearance in one court, while the judgment nisi recites that the principal was to appear in a court other than and different from that named in the bond, and the scire facias (citation) recites that the principal was to appear in a court different from that named in the judgment nisi. Such variance is fatal to a judgment making final the judgment nisi.”

In the case at bar, the judgment nisi and the final judgment are in variance with regard to the court in which the principal failed to appear. The final judgment is not supported by the allegations of the judgment nisi. Appellant’s contention must be sustained.

The judgment is reversed and the cause remanded.

      . The docket sheet establishes that the principal’s cause was transferred from the 147th District Court to the 167th District Court on July 29, 1975, long before the principal defaulted on the bond.


text:
    Ex parte Andre Augusta CROSLEY.
    No. 54339.
    Court of Criminal Appeals of Texas.
    March 23, 1977.
    Randall L. Freedman, Dallas, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an attempt to appeal from the action of the trial court. The trial court refused to issue a writ of habeas corpus and refused to hear the application for the writ in which the applicant alleges that a misdemeanor judgment of conviction is void. No appeal lies from the court’s action. See e. g. Nichlos v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522 (1953); Mayes v. State, 538 S.W.2d 637 (Tex.Cr.App.1976). Since this is not a felony conviction, the habeas corpus proceeding is not governed by the provisions of Article 11.07, V.A.C.C.P., and this Court will not take original jurisdiction of the writ. See Ex parte Phelper, 433 S.W.2d 897 (Tex.Cr.App.1968).

Both county and district courts have original jurisdiction in habeas corpus proceedings when attacks are made upon the validity of misdemeanor convictions; see Article 5, Section 8 of the Constitution of Texas; Articles 11.05 and 11.09, V.A.C.C.P., and petitioners have a right of appeal from an order denying relief. See Ex parte Phelper, supra; Mayes v. State, supra.

We observe that the appellant’s sworn application contains allegations of fact which if true would show the appellant’s misdemeanor conviction is void. It is alleged that the appellant, while indigent, while unrepresented by counsel, and without waiving his right to counsel, was convicted for the offense of theft, and punishment was assessed which included confinement in jail. Even though the applicant may have been discharged from confinement, collateral legal consequences of his conviction may entitle him to relief. See Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973); Ex parte Langston, 510 S.W.2d 603 (Tex.Cr.App.1974); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); cf. Fouke v. State, 529 S.W.2d 772 (Tex.Cr.App.1975). The applicant is entitled to have a hearing on the allegations which he has made. See Ex parte Phelper, 442 S.W.2d 695 (Tex.Cr.App.1969).

The appeal is dismissed.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Ex parte Frank SMITH.
    No. 54348.
    Court of Criminal Appeals of Texas.
    March 23, 1977.
    Rehearing Denied April 6, 1977.

      McMillan & Lewellen, Stephenville, for appellant.
    Ronald D. Earle, Dist. Atty., and Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order of the 147th District Court of Travis County denying bail.

As a matter of policy we will avoid a complete discussion of the facts since the case has not been tried on the merits. See Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974).

Appellant was indicted on January 26, 1977. The indictment alleges appellant committed the offense of aggravated robbery and further alleges two prior felony convictions for enhancement purposes. At the hearing the prior offenses were proved. Appellant was identified as the person convicted of those offenses by comparison of fingerprints in the prison record with his fingerprints taken subsequent to his arrest for the present offense.

The offense occurred on December 3, 1976, at an auto salvage yard in Austin. Isaac Raab testified that he was robbed at gunpoint by several men wearing masks. Joseph Daniel Holt and John Calvin Bailey testified at length that appellant planned and directed the crime.

At the conclusion of the hearing bail was denied under the authority of Article I, Sec. 11-a, Vernon’s Ann.Tex.Const., which provides:

“Any person accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor may, after a hearing and upon evidence substantially showing the guilt of the accused, be denied bail pending trial, by any judge of a court of record or magistrate in this State; provided, however, that if the accused is not accorded a trial upon the accusation within sixty (60) days from the time of his incarceration upon such charge, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder.”

The first enhancement paragraph of the indictment alleges that appellant was convicted in the United States District Court for the Western District of Texas in Cause No. CR-67-28-A. The offense was aiding and abetting the transportation of a stolen motor vehicle from Texas to Nevada.

Appellant was convicted of that offense on September 28,1967. Then, as now, there was no statute in Texas specifically prohibiting the transportation in interstate commerce of stolen motor vehicles. He contends that this conviction is not the type of prior felony conviction contemplated by Article I, Section 11-a, supra, and, thus, cannot be used to deny bail.

Appellant relies on Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117 (1958). In Puckett, this Court recognized and applied the rule that a federal conviction used for enhancement under Article 63 of the former Penal Code must be for an offense which is denounced as a felony by the laws of this State. There, the indictment alleged a prior federal conviction for violation of the National Motor Vehicle Theft Act. The Court held that such a violation was not available for enhancement purposes under Article 63.

At that time there was no Texas statute specifically pertaining to possession of stolen motor vehicles. The Court reasoned that if the prohibited act had been committed in Texas, then Puckett would have been guilty of receiving stolen property, but he would not have been guilty of a felony unless the value of the stolen automobile was $50 or more. The National Motor Vehicle Theft Act required no showing of value. Thus, convictions under that Act were not available for felony enhancement purposes in this State.

In the instant ease, however, the conduct which formed the basis for appellant’s federal conviction would now constitute a felony offense under V.T.C.A., Penal Code, Section 31.07, which provides:

“(a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.
“(b) An offense under this section is a felony of the third degree.”

The constitutional provision does not require that the federal offense be identical to the Texas offense. Rather, our cases have required like conduct; that is, the federal conviction must be for “an act denounced by the laws of Texas.” Ex parte Scafe, 334 S.W.2d 170, 171 (Tex.Cr.App.1960). See also Ex parte Puckett, supra.

In Lopez v. State, 171 Tex.Cr.R. 648, 352 S.W.2d 749 (1961), Lopez was charged with possession of heroin in violation of Article 725b under the former code. The State alleged three prior federal convictions for enhancement under Article 63. Two of those convictions were for unlawfully acquiring marihuana. The other was for importing a narcotic drug. Lopez was convicted and assessed an enhanced punishment of life.

His appeal was based on Ex parte Puckett, supra. This Court held that the federal felony convictions were properly alleged for enhancement purposes and stated that “the facts necessary to establish appellant’s guilt for any of the prior convictions alleged for enhancement would have constituted proper grounds for a prosecution under Article 725b, V.A.P.C., for possession of a narcotic drug. . . .” Lopez v. State, supra.

Ex parte Puckett, supra, was decided when allegations for enhancement under Article 63, V.A.P.C., 1925, were in effect. It provided that only prior felonies classified as non-capital could be used for enhancement. The Court held in that case no value was required for a conviction of transporting a motor vehicle across state lines and therefore we had no comparable offense in Texas.

In the instant case, appellant’s act of aiding and abetting in the transportation of a stolen motor vehicle from Texas to Nevada would constitute a felony offense under present Texas law. See State v. Wait, 9 Wash.App. 136, 509 P.2d 372, 65 A.L.R.3d 578 (1973). Nothing stated in Ex parte Puckett, supra, would require a contrary result since Section 31.07, supra, has no value element. The question then becomes whether appellant’s prior federal conviction is available to deny bail under Article I, Section 11-a, supra, even though the offense and conviction occurred before the effective date of the new Penal Code.

In this connection, the recent decision of Graham v. State, 546 S.W.2d 605 (Tex.Cr.App., 1977), provides an instructive analysis. In that case Graham was convicted of obtaining a controlled substance by use of a forged prescription under Section 4.09(a)(3) of the Controlled Substances Act. His punishment was enhanced to life by two prior felonies less than capital (theft and possession of marihuana).

He contended on appeal that the prior convictions could not be used for enhancement because they could not have been used for enhancement under the “old Narcotic Drug Act.” This Court rejected that contention and held such usage did not constitute an ex post facto application of the law. The Court quoted from Shaw v. State, 529 S.W.2d 75 (Tex.Cr.App.1975) and Vasquez v. State, 477 S.W.2d 629, Tex.Cr.App., as follows:

“The reason that a conviction which occurred before the statute was enacted may be used for enhancement is that the statute providing for a greater penalty upon. a subsequent conviction does not seek to punish the offender for the original criminal act a second time, but rather, ‘The repetition of criminal conduct aggravates . . . guilt and justifies heavier penalties . . .’ Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 585, 56 L.Ed. 917 (1912).”

Likewise, permitting the prior federal felony conviction in the instant case to be used for denial of .bail under Article I, Section 11-a, supra, does not again punish appellant for the original violation of 18 U.S.C., Sections 2(a), 2312. Rather, the repetition of criminal activity aggravates the showing of guilt of the primary offense at the bail hearing and justifies denial of bail. Such a result comports with the express provisions of Section 11-a.

Graham v. State, supra, teaches that when the availability of a prior conviction to enhance punishment or deny bail is in question, the proper focus is the status of such conviction at the time of the primary offense. That Section 31.07, supra, was not in effect at the time of the prior conviction is of no consequence. Therefore, we hold that appellant’s federal conviction is the type of felony conviction contemplated by Article I, Section 11-a, supra, and was properly used to deny bail under that provision.

Appellant next argues that the federal conviction cannot be used pursuant to the constitutional provision in any event since the offense was not a felony in Texas at the time the amendment was adopted (1956). This argument is without merit. See State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 334 (1945).

All constitutional provisions have prospective application; all are subject to reinterpretation. Moreover, neither the substantive nor the procedural criminal law of this State is forever frozen when such a provision is adopted. See and cf. Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972). If appellant’s reasoning were accepted, then no felony offense in the new Penal Code could be used to deny bail under Article I, Section 11-a, supra, unless it was also a felony under the former code.

Next, appellant contends the trial court had no authority to deny bail because the evidence did not substantially show his guilt. Without elaborating further on the facts, we have fully reviewed the record and determined that it reveals a substantial likelihood of his guilt. Cf. Ex parte Colbert, 452 S.W.2d 454 (Tex.Cr.App.1970). Ground of error number two is overruled.

Appellant urges that the trial court abused its discretion in denying bail because there was testimony at the hearing that setting bail would assure his presence at trial.

In Ex parte Miles, 474 S.W.2d 224 (Tex.Cr.App.1971), this Court held that denial of bail to persons who have two prior felony convictions less than capital under Article I, Section 11 — a, supra, is reasonable and does not violate constitutional rights of a class. Under V.T.C.A., Penal Code Section 12.42, the punishment is life upon conviction and a finding of two prior felony convictions. In the case at bar, there was a substantial showing of appellant’s guilt at the hearing. In view of these circumstances no abuse of discretion is shown in denying bail. Ground of error number three is overruled.

The second enhancement paragraph of the indictment alleges that appellant was convicted in Cause No. 3158 in the 82nd District Court of Falls County in 1952 of accomplice to robbery with firearms. Appellant contends his subsequent pardon of the offense precludes the use of this conviction to deny bail.

It was held in Jones v. State, 141 Tex.Cr.R. 70, 147 S.W.2d 508 (1941), and Logan v. State, 448 S.W.2d 462 (Tex.Cr.App.1970), that a pardon for any reason other than subsequent proof of innocence does not obliterate the defendant’s conviction. Rather, it merely serves to restore his civil rights. See also Gurleski v. United States, 405 F.2d 253 (5th Cir.1968). Thus, the conviction in Falls County is available to deny bail under the constitutional provision. Ground of error number four is overruled.

In his last five grounds of error, appellant complains of matters relating to a prior conviction in McLennan County. The indictment does not allege this conviction nor does the State rely on it to deny bail or enhance punishment. The grounds of error are overruled. For the reasons stated, the decision of the trial court is affirmed and the relief sought is denied.

      . 18 U.S.C., Sec. 2312 provides, “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C., Section 2(a) provides, “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”


author: ROBERTS, Judge.

text:
    Ex parte Raymond Earl SHEPPARD.
    No. 54470.
    Court of Criminal Appeals of Texas.
    March 23, 1977.

      James P. Pinstrom and Larry Finstrom, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jerome L. Cro-ston, Jr., Asst: Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an application for writ of habeas corpus filed originally in this Court. For the reasons stated, the writ will be granted and the petitioner ordered released.

On June 30, 1970, a jury convicted petitioner of possession of dangerous drugs in Cause No. CCr-70-1419-b in County Criminal Court No. 2 of Dallas County. The jury then assessed petitioner’s punishment at two years in jail and a fine of three thousand dollars; this was the maximum punishment for a first offender. Art. 726d, Sec. 15, V.A.P.C. (1925). Petitioner was then committed to the Dallas County jail, where he discharged his entire two-year sentence in 664 days with the assistance of the “good time” provisions of Art. 5118a, V.A.C.S. The date of petitioner’s release was May 1, 1972.

Petitioner then made an agreement with the court to pay his fine in weekly installments of fifteen dollars. Later, this agreement was altered to allow monthly installments of sixty dollars. As the State concedes, petitioner “has been paying on his fine since his release from the jail, and the balance due has been reduced to less than $800.00.”

However, on several occasions since petitioner was originally released from the Dallas County jail, he has been returned to jail, ostensibly for his failure to make his fine payments in this case in a timely manner. The total time of this additional confinement, which appeared to have ended on June 4, 1975, was 165 days.

Subsequently, petitioner was again placed in jail as a result of his conviction and punishment in this case. On January 3, 1977, his application for a writ of habeas corpus, filed in the 194th District Court of Dallas County, was granted, and he was ordered discharged from all further confinement in this case.

However, on February 17, 1977, appellant was again arrested and confined in the Dallas County jail as a result of this conviction. He again filed a petition in the 194th District Court requesting not only that habeas corpus relief be granted, but also that the judge of County Criminal Court No. 2 be prohibited “from arresting or interfering in any way with the liberty of” petitioner. The District Court denied petitioner’s application for a writ of habeas corpus and a writ of prohibition.

Petitioner then filed his “APPLICATION FOR WRIT OF HABEAS CORPUS” in this Court. We granted leave to file the application, set the case for submission, and set bail. Present for our consideration are two issues: Is petitioner entitled to the relief he seeks, and, if so, is this original habeas corpus petition the proper method for seeking relief?

Petitioner has consistently relied upon Article 43.03(c), Vernon’s Ann.C.C.P., as amended, effective January 1,1974. It provides:

“If a defendant is sentenced both to imprisonment and to pay a fine or costs or both, and he defaults in payment of either, a term of imprisonment for the default, when combined with the term of imprisonment already assessed, may not exceed the maximum term of imprisonment authorized for the offense for which defendant was sentenced.”

The State concedes that petitioner has been confined for a period longer than the maximum possible punishment for the offense of possession of dangerous drugs. In such a case the mandate of Art. 43.03(c) is unequivocal: The petitioner may not be subjected to further confinement.

Clearly, petitioner is entitled to the relief he seeks. The only remaining question is whether this Court should exercise its original habeas corpus jurisdiction in order to grant this relief.

It cannot be questioned that the Court of Criminal Appeals has the power to issue writs of habeas corpus filed originally in this Court. Art. V, Sec. 5, Vernon’s Ann.Tex.Const.; Art. 11.05, Vernon’s Ann. C.C.P.; Ex parte Lynn, 19 Tex.App. 120 (1885); Ex parte Cvengros, 384 S.W.2d 881 (Tex.Cr.App.1964). But it is well established that this power is rarely exercised, and only in the discretion of the Court. Ex parte Lynn, supra; Ex Parte Young, 418 S.W.2d 824, 827 (Tex.Cr.App.1967), and cases there cited.

Even though Ex parte Young, supra, involved a felony conviction, it contains language applicable to this case. There this Court stated:

“Where the applicant is entitled to a writ or hearing on his petition and is denied such right, the Court of Criminal Appeals may hear the petition as an original proceeding.”

See also Ex parte Fitzpatrick, 167 Tex.Cr.R. 376, 320 S.W.2d 683 (1959). We believe the case before us is just such a case: Petitioner has been unlawfully incarcerated. He has petitioned the District Court for habeas corpus relief, and has been granted relief. Nonetheless, he has subsequently been incarcerated by the County Criminal Court in direct violation of the District Court’s valid order. Then, in the face of this violation, the District Court has refused the further relief to which the petitioner was entitled.

From this it is clear that in turning to this Court for original habeas corpus relief petitioner is not seeking to avoid available local relief; indeed he has diligently sought such relief. Compare Ex parte Lynn, supra. We conclude that petitioner has properly invoked this Court’s original habeas corpus jurisdiction.

Accordingly, the application for writ of habeas corpus and relief prayed for are granted. Petitioner is ordered discharged from all further incarceration in Cause No. CCr-70-1419-b.

It is so ordered.

      . Taken together with petitioner’s original period of confinement, this represents a total confinement period of approximately two years and three months.

      . It is not significant that the petitioner’s original conviction and incarceration occurred before the effective date of the amendment to Article 43.03. See Ex parte Scott, 471 S.W.2d 54 (Tex.Cr.App.1971); Ex parte Tate, 471 S.W.2d 404 (Tex.Cr.App. 1971).