author: DOUGLAS, Judge.

text:
    Harold CURTIS, Appellant, v. The STATE of Texas, Appellee.
    No. 55158.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 18, 1978.
    Rehearing En Banc Denied Nov. 28, 1978.

      Jose E. Camacho, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Richard E. Banks, Asst. Dist. Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Harold Curtis appeals from his conviction for the offense of voluntary manslaughter. His punishment was assessed by the jury at fifteen years. He attacks the sufficiency of the evidence, the refusal of the trial court to submit his requested instructions on simple assault, aggravated assault and independent impulse, and the alleged systematic exclusion of 18-21 year olds from the grand jury which returned the instant indictment. We overrule these contentions and affirm.

This case arose out of the 1975 murder of Austin police officer Leland Anderson. Walter Jennings was separately tried and convicted for the offense; his punishment was assessed at life. Robbie Slaughter, a co-indictee, was also convicted for the offense and was assessed a term of thirty years upon his plea of guilty.

Appellant was indicted for the offense of murder; he was convicted of the lesser included offense of voluntary manslaughter. While the evidence does not show the offense was committed under the influence of sudden passion arising from adequate cause, V.T.C.A., Penal Code, Section 19.04, his conviction must be sustained if sufficient evidence was introduced to support a finding of guilt on the greater offense of murder. Article 40.03, Section 9, V.A.C.C.P. There was sufficient evidence to show that the greater offense of murder was committed.

At 7:00 p. m. on June 6, 1975, Officer Leland Anderson was on patrol on Congress Avenue in downtown Austin. He stopped at the corner of 8th and Congress to question appellant concerning his sale of some papers on the sidewalk. After a brief discussion, Officer Anderson radioed a request for a warrant check on appellant. At this time, appellant was observed waving toward a white van driving down Congress. The driver of the van, Walter Jennings, waved back and indicated that he would park the vehicle around the block and rejoin appellant. Jennings did so and Anderson requested a warrant check on him, also. During the next few minutes a rather heated discussion took place between Anderson on the one hand and Curtis and Jennings on the other. The latter pair became highly sarcastic and belligerent toward the deceased. Travis County Sheriff’s Reserve Deputy John Adams was standing nearby. He identified himself to Anderson and offered his assistance. Anderson requested that he stay in the area. Approximately two minutes after radioing his request for a warrant check, Anderson received a response indicating that there existed two outstanding warrants for appellant’s arrest. Anderson told Curtis that they would have to go to the police station. He reached for the sheaf of newspapers which appellant held in his hands. Appellant refused to let go of the papers and began struggling over them with the officer. At this point Walter Jennings jumped Anderson from behind and began hitting and punching him with his fists. Appellant almost immediately jumped Anderson from the front. Both men beat the officer until, a few seconds later, Deputy Adams placed appellant in a “choke-hold” and thereby subdued him. Appellant was dragged by Adams to the vicinity of the deceased’s police car. In the meantime Jennings continued to fight with Officer Anderson. The fray moved to the middle of 8th Street where Anderson’s police revolver appeared over the heads of the two men. As both clutched at the gun, Robbie Slaughter appeared and attacked Anderson as well. Jennings was seen jerking the deceased’s head back sharply; the officer fell to the ground and was further beaten and kicked by Jennings and Slaughter. Jennings obtained control of Anderson’s gun, bent over him and fired two shots into his chest. Following the shots, Deputy Adams released appellant in order to go radio for help. Appellant, Jennings and Slaughter reunited, jumped into the white van and fled. The total elapsed time between notification of appellant’s outstanding warrants and the shooting of the deceased was only forty-one seconds.

The defendants’ fleeing van was spotted and pursued by an unmarked police car. As officers pulled alongside the van they saw Jennings driving and appellant standing beside him. Gunfire was exchanged and the chase continued into east Austin. A second police car joined the chase and saw the defendants’ gun being thrown out the window on the passenger side. The van jumped a curb at Fourth Street and Chicon and rammed a police car which was in pursuit. As the van attempted to round a corner at Fourth and Chalmers, it overturned. The occupants refused to respond to police orders to exit the van. One officer broke the vehicle’s rear window, removed the trio and placed them under arrest.

The State called Dr. Coleman de Chenar, the physician who performed the autopsy, and James Watkins, a funeral director and embalmer who assisted in the autopsy and prepared the deceased’s body for burial. The testimony of these two witnesses reflects that as a result of the beating inflicted upon him Anderson received numerous facial contusions, his nose was broken, his upper lip was severely crushed and his ear was swollen and deformed. His neck had been violently stretched to the point of near separation from the cranium. His scrotum and testicles were badly bruised. Death was caused by the passing of a bullet through both lungs causing their collapse and the victim’s suffocation.

The indictment charged, in pertinent part, that appellant

“did then and there knowingly and intentionally cause the death of Leland Anderson by shooting him with a pistol.”

The issue is whether sufficient evidence was adduced from which the jury could have found appellant guilty beyond a reasonable doubt as a party to the instant offense. Such evidence must have shown that appellant was physically present at the commission of the offense and solicited, encouraged, directed, aided or attempted to aid Walter Jennings in the commission of the offense, either by words or other agreement. V.T.C.A., Penal Code, Section 7.02(a)(2); Baldridge v. State, 543 S.W.2d 639 (Tex.Cr.App.1976); Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974). Appellant contends that the second of these requirements has not been satisfied. He further contends that the actions of Walter Jennings were by themselves so clearly sufficient to produce the death of the decedent as to render appellant free of criminal responsibility for the offense.

We do not agree. The fact that appellant did not participate in the actual shooting of the deceased is immaterial. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Bush v. State, supra. This Court may look to events occurring before, during and after the commission of the offense and reliance may be placed on actions which show an understanding and common design to do a certain act. Ex parte Prior, supra; Bush v. State, supra; Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975).

It is conceded that appellant was present at the commission of the offense. The evidence showed, moreover, that although appellant did not land the first blow against Officer Anderson he did initiate the physical struggle which culminated in Anderson’s death. The evidence further showed that prior to his entry into the fight appellant could see that Jennings was hitting and punching Anderson with the obvious intent to injure the officer. It was with the knowledge that his co-defendant intended to beat up the deceased that appellant then joined in the fray and knowingly and intentionally assisted Jennings in committing aggravated assault on the deceased by attacking him from the front. The record gives every indication that appellant would have continued to beat the deceased had he not been dragged away by Deputy Adams. The fact that an intervening bystander stopped appellant’s participation in the fight did not negate appellant’s intent to aid in the assault. Later, with the knowledge that Jennings had shot the deceased, appellant nevertheless rejoined him in the escape. The evidence shows an implicit agreement to commit the offense formulated contemporaneous with the offense. Suff v. State, supra. Whether words evidencing such agreement were uttered between appellant and Jennings is of no consequence. Barron v. State, 566 S.W.2d 929 (Tex.Cr.App.1978).

Appellant urges, however, that to support his conviction for murder, and hence manslaughter, it is not enough that he participated in the initial assault. Contrary to this contention, it does not matter that the offense originally intended by appellant, aggravated assault, subsequently escalated into murder. Where several people act together in pursuit of an unlawful act each one is liable for collateral crimes, even though unplanned and unintended, if those crimes are the foreseeable, ordinary and probable consequences of the preparation or execution of the unlawful act. Thompson v. State, 514 S.W.2d 275 (Tex.Cr.App.1974). This Court has held that where no deadly weapon is used to kill a deceased the relative size and strength of the parties, the manner of the attack and the wounds inflicted may be considered in determining a defendant’s intent to kill. McDonough v. State, 147 Tex.Cr.R. 111, 178 S.W.2d 863 (1944). Inasmuch as his death would have been a foreseeable consequence of the assault, appellant was liable for the collateral crime of murder whether or not there existed any prior agreement to commit the latter offense. Thompson v. State, supra; V.T.C.A., Penal Code, Section 6.04(b)(1).

The evidence is sufficient to show that participating in the beating of Leland Anderson appellant aided or attempted to aid Walter Jennings in the murder of the deceased.

He contends that the evidence is confusing as to whether he actually inflicted injury on the deceased. He concedes that he was a party to the assault on Officer Anderson until he was dragged away by Deputy Adams. The record shows that the deceased sustained severe injuries, almost all of which were frontal. Appellant attacked the deceased from the front. The jury could reasonably have concluded that at least a portion of the injuries sustained were inflicted by the appellant.

Whether or not appellant’s blows actually caused injury is not determinative of guilt. V.T.C.A., Penal Code, Section 6.04(a), provides that one who operates concurrently with another is criminally responsible for the other’s behavior unless the concurrent cause was by itself clearly sufficient to . produce the result. The record shows that Deputy Adams remained on the scene for the specific purpose of assisting Officer Anderson. It is unlikely that Walter Jennings could have incapacitated and shot the deceased had Deputy Adams been available to come to the deceased’s aid. Adams was prevented from doing so because of his preoccupation with controlling appellant. The jury could reasonably have concluded that by preventing Adams from going to the aid of the deceased appellant assisted Jennings in effectuating his murder. Binyon v. State, 545 S.W.2d 448 (Tex.Cr.App.1976).

Complaint is next made of the court’s refusal to submit requested charges on the lesser offenses of simple and aggravated assault.

There is no question that the deceased sustained serious bodily injury as a result of the beating perpetrated by appellant and his co-defendants. A charge on simple assault was not, therefore, raised by the evidence. A charge on the offense of aggravated assault would have been required only if testimony was introduced from some source which indicated a lack of intent on the part of appellant, acting as a party, to kill the deceased. Payne v. State, 516 S.W.2d 675 (Tex.Cr.App.1974); Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974); Machado v. State, 494 S.W.2d 859 (Tex.Cr.App.1973). No such evidence was introduced to support this or any other defensive theory. A jury charge on aggravated assault was not required.

Appellant urges that the court erred in failing to submit the following requested charge on “independent impulse”:

“If there was no common intent and intent of all, including the Defendant, to commit the offense, or if the offense, if any was committed by one or more, acting independently of the Defendant in so doing and without participation by him in the intent to commit it, the Defendant is not guilty and if you have a reasonable doubt as to this issue, you must give the Defendant the benefit of the doubt and acquit him.”

Such a charge would have been contrary to the established law of criminal responsibility as set forth in V.T.C.A., Penal Code, Section 6.04(b)(1). We have already determined that if appellant knowingly and intentionally participated with co-defendant Jennings in assaulting the deceased he was criminally responsible for the collateral and foreseeable offense of murder whether or not he had the intent to actually kill the deceased. Furthermore, any error committed by the court in refusing to submit appellant’s requested charge would have been harmless. The court’s charge on the law of parties fully protected appellant’s rights in the area of criminal responsibility. Randolph v. State, 493 S.W.2d 869 (Tex.Cr.App.1973).

It is finally contended that the court erred in overruling appellant’s motion to quash the indictment on the grounds that the Travis County grand jury selection process systematically excludes persons aged 18-21. With regard to whether 18-21 year olds constitute a distinctive group in Travis County, appellant alleges that the “generation gap” is not a cliche but a reality. Such a statement is hardly evidence upon which we may rely. Indeed, appellant has presented no evidence whatsoever to either the trial court or this Court to show that such individuals constitute a distinctive group, that they are systematically excluded from Travis County grand juries in general or that they were excluded from the grand jury which indicted appellant in particular. See Tibbetts v. State, 494 S.W.2d 552 (Tex.Cr.App.1973). Even were 18-21 year olds to be considered a distinctive group comparable to racial minorities, appellant’s contention would be without merit. It has been repeatedly held that the Constitution requires that grand juries be selected without discrimination as to race, but that it does not require proportional representation of races on grand jury panels. Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Rodriguez v. State, 513 S.W.2d 22 (Tex.Cr.App.1974). Likewise, there need not be proportional representation of that segment of the population that is aged 18-21 on each and every grand jury selected in Travis County.

No error is shown. The judgment is affirmed.

      . V.T.C.A., Penal Code. Section 6.04(b)(1), which codifies the common law doctrine of transferred intent, provides:
      “(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
      “(1) A different offense was committed.”


source: Caselaw Access Project

author: ROBERTS, Judge. ODOM, Judge, VOLLERS, Judge,

license: Public Domain

text:
    Ex parte David CLEAR.
    No. 59288.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 1, 1978.

      T. W. Proctor, Houston, for Clear.
    George L. Walker, Houston, for Walker.
    Joe Resweber, County Atty. and Anthony D. Sheppard, Asst. County Atty., Houston, for Thompson.
   OPINION

ROBERTS, Judge.

This is an application for a writ of habeas corpus filed originally in this Court. Relator alleges that the district court illegally assumed jurisdiction as a magistrate of a felony complaint filed against him in justice court and unlawfully raised his bond from one thousand to two thousand dollars. We agree and grant the relief requested.

I.

On July 8, 1978, the State filed a felony complaint against the relator David Clear. The complaint alleged that relator had, by causing bodily injury, assaulted a police officer who was, at the time of the assault, in the lawful discharge of an official duty. See V.T.C.A., Penal Code, Sec. 22.02(a)(2). The complaint was filed in justice court precinct 2, position 2 of Harris County.

The complaint, along with supporting statements alleged to show probable cause, was sworn to before an assistant district attorney and presented to the Honorable Lawrence H. Wayne, who was acting as a magistrate. Judge Wayne is Justice of the Peace for precinct 1, position 2 of Harris County. On the same day the complaint was filed, a warrant was issued by Judge Wayne, who also set relator’s bond at one thousand dollars. On July 10, 1978, relator was arrested under the warrant and placed in jail. Shortly after relator’s arrest, a probable cause hearing was conducted by the Honorable N. 0. Morrison, Justice of the Peace for precinct 3, position 2 of Harris County. The record reveals without dispute that Judge Morrison and Judge Wayne were acting on behalf of the Honorable D. F. Thompson, Justice of the Peace for precinct 2, position 2, where the complaint was filed. Their actions were in accord with the broad language of Art. 2393a, Vernon’s Ann.Civ.St., which provides:

“A justice may hold court for any other justice whose precinct is in the same county; and the justices of a county may exchange benches whenever they deem it expedient.”

On July 11, 1978, relator executed a bail bond in the amount of one thousand dollars and was released from custody. The next day he appeared before the Honorable George L. Walker, Presiding Judge of the 185th District Court of Harris County, for a !‘48-hour hearing.”

These 48-hour hearings were established by an order entered by the Honorable Mi-ron A. Love, Presiding Judge of the 177th District Court of Harris County, acting as administrative judge for Harris County. See Art. 199a, Sec. 2.003, Vernon’s Ann. Civ.St. The order reads as follows:

“ORDER
“BY ORDER OF THE DISTRICT JUDGES OF HARRIS COUNTY, TEXAS, TRYING CRIMINAL CASES THERE IS HEREBY CREATED A FORTY EIGHT HOUR HEARING FOR ALL FELONY CASES FILED IN HARRIS COUNTY, TEXAS WHICH FORTY EIGHT HOUR HEARINGS SHALL BE HELD IN THE DISTRICT COURTS HAVING SUCH FELONY CASES PREASSIGNED TO THEM RESPECTIVELY.
“IT SHALL BE THE DUTY OF THE CLERK TO FILE AND DOCKET CASES INTO THE DISTRICT COURTS ASSUMING JURISDICTION TO REVIEW AND SET BONDS AND APPOINT ATTORNEYS IN FELONY CASE COMPLAINTS ASSIGNED TO THEM, AND TO RECORD, ENTER, AND FILE ALL PROCESS APERTAIN-ING TO SAID CASES.
“IT SHALL FURTHER BE THE DUTY OF THE CLERK TO ENTER ALL SUCH TRANSACTIONS IN REGARD TO THE ABOVE MENTIONED CASES INTO THE JUSTICE INFORMATION MANAGEMENT SYSTEM AND TO MAKE SUCH OTHER ENTRIES, EITHER AUTOMATED OR MANUAL, AS MAY BE NECESSARY TO RECORD PROCEEDINGS HAD AT THE FORTY EIGHT HOUR HEARINGS.
“THIS ORDER TO BE EFFECTIVE Aug 15. 1977.
“DONE AND ENTERED THIS THE 10TH DAY OF AUGUST 1977.
/s/ Miron A. Love
“MIRON A. LOVE ADMINISTRATIVE JUDGE HARRIS COUNTY, TEXAS”

See also Gerstein v. Pugh, supra (note 2); Alberti v. Sheriff of Harris County, supra (note 2).

As can be seen, the principal stated purpose of the hearing is “to review and set bonds and appoint attorneys in felony case complaints.” It appears from the record that the hearing is also used to determine whether the accused is willing to waive his right to proceed by indictment. Finally, it appears that the hearing is used by the judge to make a general inquiry about the representation of the accused by counsel. In those cases where the accused is not indigent, he is admonished to retain counsel within a very short time after the hearing.

When relator appeared for his 48-hour hearing on July 12, 1978, Judge Walker ordered that the hearing be recessed until the following morning and instructed relator to return at that time accompanied by retained counsel.

On July 13, 1978, relator appeared without counsel at the recessed hearing. According to his sworn statement filed in this Court, relator had attempted to get in touch with an attorney he wanted to employ, but he had been unsuccessful in doing so. However, there is some dispute whether he made this fact known to Judge Walker on July 13th. The record reflects that Judge Walker’s perception was that relator was not “earnestly seeking to employ counsel,” but that “instead, he made light of the court’s admonition on the importance of retaining counsel or establishing the need of appointment of counsel.”

Judge Walker decided that relator was likewise insufficiently concerned about the seriousness of being charged with a felony offense. Because of this perceived lack of concern about counsel and the charges against him, relator was deemed by Judge Walker unlikely to appear in court when required to do so. And, since relator did not indicate at the hearing “that he was not able to employ counsel or to make a higher bond,” Judge Walker revoked the thousand-dollar bond and increased relator’s bail to two thousand dollars. Relator was then taken into custody, from which he was released after posting a two-thousand-dollar bail bond.

At some time on July 13,1978 (the day of this last hearing) Judge Walker entered the following order:

Subsequently, relator filed in this Court his application for a writ of habeas corpus, writ of mandamus, and writ of prohibition. In his application he contended: (1) that the increased bond imposed at the July 13th hearing constituted an illegal confinement, from which he should be relieved by means of habeas corpus; (2) that this Court should, by means of mandamus, order that he be given an examining trial in Justice Court, precinct 2, position 2, where the complaint against him was originally filed; and (3) that Judge Walker “and all other Harris County Criminal District Judges [be prohibited] from interfering with the pre-indictment jurisdiction of the Justice Courts of Harris County.”

We concluded that relator’s application should be treated as an original application for writ of habeas corpus and ordered that the ease be filed and set for submission and oral argument. Responses by the named parties were encouraged, as were amicus curiae briefs on behalf of certain named individuals and organizations. Finally, we ordered that all lower court proceedings arising out of this case be stayed pending our disposition of relator’s writ.

II.

Article 2.09, Vernon’s Ann. C.C.P., provides:

“Each of the following officers is a magistrate within the meaning of this Code: The judges of the Supreme Court, the judges of the Court of Criminal Appeals, the judges of the District Court, the county judges, the judges of the county courts at law, judges of the county criminal courts, the justices of the peace, the mayors and recorders and the judges of the city courts of incorporated cities or towns.” (Emphasis added).

In Kerry v. State, 17 Tex.App. 178, 181 [Tyler Term, 1884], Presiding Judge White commenced his opinion for the court with the following language:

“A justice of the peace is a ‘magistrate.’ (Code Crim. Proc., art. 42.) When a justice sits for the purpose of inquiring into a criminal accusation against any person, he sits not as a justice of the peace but as a magistrate, and the court which he then holds is not a justice’s but ‘an examining court.’ (Code Crim. Proc., art. 63.) When holding such a court, his functions as a magistrate are the same as those of the judges of the county, district, supreme, or court of appeals, when they sit as magistrates to hold an examining trial. The same rules govern each. (Hart v. The State, 15 Texas Ct.App., 202.)”

This language from the Kerry opinion was quoted with approval in O’Quinn v. State, 462 S.W.2d 583, 587 (Tex.Cr.App.1970), where it was also stated that “ ‘magistrate’ has come to connote one having duties which are judicial in nature.” And it is clear that when a justice of the peace acts as a magistrate, his jurisdiction is coextensive with the limits of the county. E. g., Hinkley v. State, 119 Tex.Cr.R. 254, 45 S.W.2d 581 (1931); Crouch v. State, 136 Tex.Cr.R. 162, 123 S.W.2d 904 (1938); Gilbert v. State, 493 S.W.2d 783 (Tex.Cr.App.1973).

It follows that all the magistrates of a given county have co-equal jurisdiction; indeed, this appears to be nothing less than the plain import of the statute. More specifically, we hold that a justice of the peace acting as a magistrate has jurisdiction concurrent with that of a district judge who also seeks to exercise magisterial powers.

Article 4.16 of our Code of Criminal Procedure provides:

“When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction except as provided in Article 4.12.”

As far as this statute is concerned, a criminal “offense” is the equivalent of a criminal “case,” which this Court has defined to be “an action, suit, or cause instituted to secure a conviction and punishment for crime, or to punish an infraction of the criminal law.” White v. State, 543 S.W.2d 366, 368 (Tex.Cr.App.1976); Ex parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531, 588 (1912). See also Taylor v. Goodrich, 25 Tex.Civ.App. 109, 40 S.W. 515, 524 (1897).

The complaint filed against relator on July 8th was the initial step of an action instituted to secure his conviction and punishment for the crime of aggravated assault and hence constituted a criminal offense. See V.T.C.A., Penal Code, Section 22.-02(a)(2). And, since the justice court and the district court had concurrent jurisdiction over relator’s case as magistrates, it is clear that the rule of Article 4.16 applies.

The record reflects that the aggravated assault case against relator was first filed in Judge Thompson’s Justice of the Peace Court, precinct 2, position 2. That court, with Judge Wayne sitting for Judge Thompson, obtained jurisdiction over the subject matter of the complaint and later, with Judge Morrison sitting, over the person of relator. At that point the Justice Court for precinct 2, position 2, possessed sole jurisdiction over this complaint against relator, to the exclusion of all other courts, until the time that the complaint was either dismissed by the court or superseded by the action of the grand jury, or until the time that the requirements of Article 1.141 of the Code of Criminal Procedure had been met. It follows that Judge Walker exceeded his authority by usurping the lawful jurisdiction of the justice court.

III.

Nor can it be argued that the District Judge’s actions were authorized under the “inherent powers” doctrine of Article V, Section 8 of the Texas Constitution, which gives district courts “general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution . ..” (Emphasis added.) By enacting Articles 2.09 and 4.16 of the Code of Criminal Procedure, the Legislature “provided by law” a limitation on the “inherent powers” of the district courts, and that limitation applies to the case before us.

IV.

Relator is clearly entitled to habeas corpus relief. We have held that one may be “in custody” for habeas corpus purposes even though he is out of jail on bond or his own personal bond. Ex parte Trillo, 540 S.W.2d 728 (Tex.Cr.App.1976), and authorities there cited. In such a case the issue is whether the relator has been subjected to restraints on his liberty not shared by the public generally. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), cited with approval in Ex parte Trillo, supra. And see Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

In the present case, relator was free on a one-thousand-dollar bail bond when the District Judge improperly assumed authority over his case. Judge Walker then revoked that bond and set relator’s bail at an amount exactly double that of the original amount. Relator once again secured his release on bond. Yet it cannot be denied that in doing so relator was subjected to significant restraints on his liberty, as well as his property. Moreover, he had indicated his desire for an examining trial, which the Justice of the Peace stands ready to afford him but for the fact of jurisdictional pre-emption effectuated by the District Court. Compare Hensley v. Municipal Court, supra.

V.

The remaining question is whether this Court should exercise its original habe-as corpus jurisdiction to grant the relief to which appellant is entitled. See Art. V, Sec. 5, Vernon’s Ann.Tex.Const.; Art. 11.05, Vernon’s Ann. C.C.P.; Ex parte Sheppard, 548 S.W.2d 414 (Tex.Cr.App.1978). In this case, as in Sheppard, we are confronted with a jurisdictional conflict between two lower trial courts. The dispute is one “regarding criminal law matters.” Art. V, Sec. 5, Vernon’s Ann.Tex.Const., supra. Clearly, the issue cannot be settled on a subsequent appeal. Ex parte Lohse, supra (note 6); and see Ex parte Trillo, supra. We conclude, as we did in Sheppard, that the exercise of our original jurisdiction is justified.

Accordingly, the writ is granted. Relator’s two-thousand-dollar bond is set aside and his one-thousand-dollar bond is ordered reinstated. All acts of the District Court which purported to be an exercise of jurisdiction over relator’s ease are ordered vacated. Jurisdiction of the case is hereby vested in Justice Court, precinct 2, position 2.

ODOM, Judge,

concurring.

I concur in the disposition of petitioner’s application for writ of habeas corpus and in the relief granted to the extent that the district court’s exercise of magisterial powers in petitioner’s case is declared void and the exercise of magisterial powers in that case by the Justice Court, Precinct 2, Position 2, is upheld. The majority, however, go too far in the scope of jurisdictional issues discussed. At issue in this case are the conflicting assertions of jurisdiction as magistrates by the district court and the justice court. The jurisdiction of the district court to try the case is not at issue and need not be discussed. Therefore, I do not join that part of the majority opinion that attempts to describe the exclusive means by which a case first filed by a complaint in justice court can be brought to trial. Inasmuch as that discussion is dictum, it should not be relied on for attacks on trial court jurisdiction in cases that may have reached trial by some path other than those described by the majority.

DOUGLAS, J., joins.

VOLLERS, Judge,

concurring.

I concur in the opinion of the Court except for paragraph III. I agree that the legislature has “provided by law” a limitation upon the “inherent powers” of the district courts by enacting Articles 2.09 and 4.16 of the Code of Criminal Procedure, but that limitation applies in the case before us only to the exercise of the powers of a magistrate. Since the petitioner’s complaint as to custody does not result from the district court calling the petitioner before it to determine whether or not he wished to waive indictment, but only resulted from the district court’s exercise of jurisdiction over this cause as a magistrate, we are not called upon to rule on the issue of whether or not the district judge has inherent powers under Article 5, Section 8 of the Texas Constitution which enables him to call the accused before the court to determine whether or not he wishes to waive an indictment. Since this matter is not presented to us for review in this case, I think that we should make it clear that we are not deciding the issue.

      . See Arts. 2.09, 2.10, Vernon’s Ann. C.C.P.

      . See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Alberti v. Sheriff of Harris County, 406 F.Supp. 649 (S.D.Tex.1975); and see Art. 2.11, Vernon’s Ann. C.C.P.

      . Judge Thompson, Justice of the Peace for precinct 2, position 2, has refused to accord relator an examining trial because of Judge Walker’s assumption of jurisdiction over the case on July 13th.

      . Article 4.12 deals with certain misdemeanor cases to be tried in justice court and thus is not here applicable.

      . It is not significant that Judge Thompson and Judge Walker preside over courts of different general criminal jurisdiction. In Leberman v. State, 139 Tex.Cr.R. 243, 139 S.W.2d 813 (1940), we held that the predecessor statute of Article 4.16 precluded a county court from preempting the earlier-acquired jurisdiction of the justice court in a case where both had jurisdiction.

      . It is alleged in one of the amicus curiae briefs that the complaint was filed simultaneously in the justice court and in the 185th District Court. The record does not so reflect. However, we observe that Article 4.16 is concerned primarily with jurisdiction over the person (rather than subject matter jurisdiction). Ex parte Lohse, 157 Tex.Cr.R. 488, 250 S.W.2d 215, 217 (1952) (opinion on motion for rehearing); Bragg v. State, 109 Tex.Cr.R. 632, 6 S.W.2d 365, 366 (1928). Thus, jurisdiction attached to the justice court when relator appeared first before that court. See Cordway v. State, 25 Tex.App. 405, 8 S.W. 670, 672 (1888). Of course, it is well settled that two courts may not exercise criminal jurisdiction at the same time, even though they share concurrent jurisdiction. Clepper v. State, 4 Tex. 242 (1849); Ringer v. State, 135 Tex.Cr.R. 573, 121 S.W.2d 364 (1938).

      . See Art. 2393a, supra.

      . See Epps v. State, 130 Tex.Cr.R. 398, 94 S.W.2d 441 (1936); Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972).

      . See Baskins v. State, 75 Tex.Cr.R. 537, 171 S.W. 723 (1914).

      . It also follows, and we hold, that if the complaint had first been filed in the district court, and the case had proceeded in that court as it did in the justice court, the district court would have possessed exclusive jurisdiction of relator’s case.

      . See Art. I, Sec. 19, Vernon’s Ann.Tex.Const.; U.S.Const., Amends. V, XIV.

      . As we have noted before, our original habe-as corpus jurisdiction is rarely exercised, and then only in the discretion of the Court. Ex parte Sheppard, supra, at 416.


author: ROBERTS, Judge.

text:
    Curley ARMSTEAD, Appellant, v. The STATE of Texas, Appellee.
    No. 55135.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 15, 1978.
    Lester Van Slyke, Jr., Richmond, for appellant.
    C. A. Dickerson, Dist. Atty., and William A. Meitzen, Asst. Dist. Atty., Richmond, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery, an offense denounced by V.T.C.A., Penal Code, Sec. 29.02. The punishment, enhanced by a prior felony conviction, was assessed by the court at twenty-five years’ imprisonment.

We conclude that the court’s charge to the jury at the guilt-innocence phase of the trial was fundamentally erroneous. Therefore, in the interest of justice, the judgment of conviction must be reversed. Article 40.-09(13), Vernon’s Ann.C.C.P.

Omitting the formal portions, the indictment charging appellant with robbery alleged in relevant part:

“. . . that Curley Armstead, Defendant, on or about the 1st day of May, A.D. 1976, and before the presentment of this indictment, in said County and State, did then and there while in the course of committing theft and with intent to appropriate property of Gloria Slavinski, the owner of the following described property, to-wit: cash money, without the effective consent of said owner and intent to deprive the said owner of said property, did then and there placed Gloria Slavinski in fear of imminent bodily iniu-ry.” (Emphasis supplied.)

Thus, it is readily apparent that the indictment charged appellant with robbery based on the theory embodied in Sec. 29.02(a)(2), supra, that appellant “intentionally or knowingly threatened] or place[d] another in fear of imminent bodily injury or death.”

In applying the law to the facts in its charge to the jury, the court not only authorized the jury to convict appellant if they found him guilty as alleged in the indictment; but, the court also allowed the jury to convict appellant for robbery if they found that appellant “intentionally, knowingly, or recklessly caused bodily injury to said owner. . . Consequently, the jury was authorized by the charge to convict appellant under a theory described by Sec. 29.02(a)(1), supra, a manner of committing robbery which was not alleged in the indictment. This charge then, was fundamentally erroneous and the cases of Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Robinson v. State, 553 S.W.2d 371, 374 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303, 304 (Tex.Cr.App.1977), require that we reverse appellant’s conviction.

The judgment is reversed and the cause remanded.

      . Section 29.02, supra, provides that:
      “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
      “(1) intentionally, knowingly, or recklessly causes bodily injury to another; or “(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
      “(b) An offense under this section is a felony of the second degree.”

      . We express no opinion on the validity of this indictment.


text:
    Carroll Gene HERRING, Appellant, v. The STATE of Texas, Appellee.
    No. 55137.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 15, 1978.
    Wes Reed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald D. Hinds and James D. Burnham, 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 criminal mischief. V.T.C.A., Penal Code, Sec. 28.03. Upon his plea of not guilty, appellant was convicted by the court; punishment was assessed at two years’ confinement, probated.

In a single ground of error, appellant challenges the sufficiency of the evidence to sustain his conviction. We affirm.

Viewing the evidence in the light most favorable to the State, Tatom v. State, 555 S.W.2d 459 (Tex.Cr.App.1977), we find that on February 19, 1976, the date of the offense, Robert Trenholm, the complainant, was co-owner of a house under construction located at 8901 Flint Falls in Dallas. Tren-holm contracted with D. W. Wilson to construct the house and Wilson, in turn, by verbal agreement, subcontracted a portion of the roof work to appellant. After appellant fulfilled his obligation under the contract, a dispute arose between him and Wilson concerning payment for the work completed. When Wilson would not accede to appellant’s demand for payment, appellant entered upon the premises and disassembled the roof he had already completed. The construction material was also damaged; it was undisputed that this material was owned by the complainant.

On cross-examination, appellant testified that he tore down the roof for two reasons: (1) because he had not been paid for his work, and (2) because the contractor told him he was not satisfied with the work and it was appellant’s intention to rebuild the roof to the contractor’s satisfaction.

The record further shows that appellant filed a mechanic’s lien against the house the day after he tore down the roof.

Specifically, appellant contends that the evidence does not show that he intentionally and knowingly damaged and destroyed the roof. We disagree.

The evidence showed that appellant finished his work on the roof, that all parties were satisfied with the work, that a dispute arose over the payment for the work, that appellant entered upon the property and disassembled the roof, and that appellant admitted that one reason for his action was that he felt he did not receive proper payment for his work. We conclude that the evidence is sufficient to sustain appellant’s conviction for criminal mischief. The ground of error is overruled.

The judgment is affirmed.

      . Section 28.03, supra, provides in relevant part as follows:

        “(a) A person commits an offense if, without the effective consent of the owner:
      “(1) he intentionally or knowingly damages or destroys the tangible property of the owner; . . .
      “(b) An offense under this Section is: * *
      “(4) a felony of the third degree if:
      “(A) the amount of pecuniary loss is $200 or more but less than $10,000; . . ”


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

text:
    Ricky Dean HOUSEWRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 55651.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 15, 1978.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for knowingly and intentionally possessing a usable quantity of marihuana in an amount of less than two ounces. Punishment was assessed at 30 days in jail.

In our prior opinion of September 14, 1977, we concluded that the sentence in the instant case had been prematurely pronounced and dismissed the appeal. Upon reconsideration, that opinion is now ordered withdrawn; and, for the reasons to be stated below, the judgment of the trial court is affirmed.

Article 42.03, Sec. 1, Vernon’s Ann.C.C.P., governs the time for pronouncing sentence. It provides that “sentence shall be pronounced in the presence of the defendant except when his presence is not required by Article 42.02 at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.” Article 40.05, Vernon’s Ann.C.C.P., governs the time for filing a motion for new trial, and Article 41.02, Vernon’s Ann.C.C.P., governs the time for making a motion in arrest of judgment. Numerous decisions of this Court have held that a sentence, as defined by Article 42.02, Vernon’s Ann.C.C.P., should not be pronounced until after the expiration of the time for making a motion for new trial or motion in arrest of judgment, unless such time is waived by the defendant. Many of these cases are cited in Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1976). In Shields, on State’s motion for rehearing, we discussed the question of whether an untimely pronounced sentence could be collaterally attacked. There we stated:

“After due consideration, we hold that a sentence untimely pronounced results in an irregularity in the proceedings and renders the sentence voidable as opposed to void. Such irregularly pronounced sentence is not to be equated with the failure to pronounce sentence with regard to the jurisdiction of this court. Prior decisions so indicating were in error. If an attack is made upon such voidable sentence on direct appeal or the matter is called to the attention of this court in any manner while the appeal is pending, the appeal will be dismissed. If no appeal is taken or if the matter of untimely pronounced sentence is not called to the appellate court’s attention in any manner on appeal, such voidable only sentence will not be subject to collateral attack by habeas corpus proceedings or otherwise.”

The only thing in the record before us to suggest that sentence may have been untimely pronounced in the instant case is that it was pronounced on December 16, 1976, which was the same day appellant was convicted and judgment was entered. The only indication of a waiver of the time allowed for filing a motion for new trial or motion in arrest of judgment is an instrument that was filed at the time of appellant’s guilty plea, but before the finding of guilt, assessment of punishment, and entry of judgment. If this were the only purported waiver of the time allowed to file such motions, it would be premature and ineffective. McConathy v. State, 545 S.W.2d 781 (Tex.Cr.App.1976). Neither the court’s docket sheet nor the sentence reflects that appellant waived the time in which to file a motion for new trial or make a motion in arrest of judgment. While it would be the better and recommended practice for them to so reflect, we know of no authority which requires the docket sheet or the sentence to reflect a waiver of the time to file such motions.

Both Articles 42.02 and 42.03, supra, which deal with the imposition of sentence, are procedural in nature. See also Article 42.04, Vernon’s Ann.C.C.P., which provides that sentence shall be pronounced before an appeal is taken, except in certain specified cases not here applicable. In Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974), it was contended that the trial court erred in permitting the jury to separate after being charged without the consent of the defendant, in violation of Article 35.23, Vernon’s Ann.C.C.P. That contention, however, was found to be utterly without foundation in the record. There we stated:

. . We have repeatedly held that, where the record is silent, there is a presumption that procedural rules were complied with. See, e. g., Davis v. State, Tex.Cr.App., 507 S.W.2d 740 (presumed that proper number of jurors impaneled); Bishop v. State, Tex.Cr.App., 507 S.W.2d 745 (indictment presumed filed after commission of alleged offenses); Lewis v. State, Tex.Cr.App., 501 S.W.2d 88 (procedural requirements on convictions in enhancement counts presumed); Haas v. State, Tex.Cr.App., 498 S.W.2d 206 (exercise of discretion in allowing witness who violated rule to testify presumed properly exercised); Arnold v. State, Tex.Cr.App., 486 S.W.2d 345 (venue proven and jury properly impaneled and sworn are presumed); Ex parte Rocha, Tex.Cr.App., 482 S.W.2d 169 (regularity of judgment presumed on habeas corpus); Morgan v. State, Tex.Cr.App., 470 S.W.2d 877 (notice prior to introduction of bill in the Legislature presumed); Lipscomb v. State, Tex.Cr.App., 467 S.W.2d 417 (compliance with Article 36.27, V.A.C.C.P., presumed). Where procedural requirements do not affirmatively appear in the record to have been violated, a presumption of regularity must prevail.” [Footnote omitted.]

See also McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975), where it is stated:

“. . . It is a cardinal rule of appellate procedure in this State that we must indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.” See also Clopton v. State, 563 S.W.2d 930 (Tex.Cr.App.1978).

The instant appeal appears to have been taken for the purposes of delay only. The record before us consists only of the trial court clerk’s transcript. There is no transcription of the court reporter’s notes or formal bills of exception. No brief was filed in the trial court in appellant’s behalf in accordance with Article 40.09(9), Vernon’s Ann.C.C.P., and none has been filed here. There is no showing of indigency. Consequently, on the record before us we are unable to determine whether sentence was pronounced in an untimely fashion or whether sentence was pronounced after a waiver by appellant of the time for filing a motion for new trial or making a motion in arrest of judgment.

As stated above, it is the better practice, and we recommend, that in cases where a defendant waives the time in which to file a motion for new trial or make a motion in arrest of judgment such waiver should be reflected on the docket sheet and sentence of the court. However, experience has taught us that, in many cases that come before this Court where a defendant has waived the time for making such motions, such waiver is only reflected in the transcription of the court reporter’s notes. Consequently, without a transcription of the court reporter’s notes or a formal bill of exception in the present case showing that appellant did not waive the time for making such motions, we will presume that the court pronounced sentence after having obtained a waiver of the right to file such motions from the appellant.

Neither Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975), Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976), nor Middleton v. State, 537 S.W.2d 25 (Tex.Cr.App.1976), is contrary to today’s decision. In Faurie, we noted that the record in that case did not affirmatively show a waiver of the time in which to file a motion for new trial or make a motion in arrest of judgment prior to the pronouncement of sentence. We also noted that the form sentence and printed notation on the docket sheet which recited that the defendant “waives time” was insufficient to show such waiver. The record in Faurie, however, contained a transcription of the court reporter’s notes of the punishment and sentencing proceedings and showed that no such waiver was, in fact, made by the defendant. In Mendez, the record did not reflect that the defendant voluntarily and knowingly waived his right to file a motion for new trial within 10 days after the assessment of punishment. As in Faurie, the form sentence of the court indicating that appellant “waived time” was held insufficient to show a waiver of this right in the record on appeal. Like the record in Fau-rie, the record in Mendez contained a transcription of the court reporter’s notes of the punishment and sentencing proceedings and showed that no such waiver was, in fact, made by the defendant. In Middleton, the court assessed punishment and imposed sentence the same day. Other than the notation on the docket sheet of “Ten days’ time waived,” there was no other showing of a waiver of the time in which to file a motion for new trial or make a motion in arrest of judgment. However, the record in Middleton, like the ones in Faurie and Mendez, contained a transcription of the court reporter’s notes of the punishment and sentencing proceedings. There we stated:

“In the instant case both the sentence and the docket sheet contain the notation ‘Ten days’ time waived,’ apparently referring to the time in which to file a motion for new trial or motion in arrest of judgment. See Articles 40.05 and 41.02, Vernon’s Ann.C.C.P. However, the transcription of the court reporter’s notes does not reflect a waiver of the time in which to file such motions and there is no other instrument in the record which shows that appellant waived the time provided in Articles 40.05 and 41.02, supra. [Emphasis supplied].
“We are unable to say that the notations concerning the waiver of ‘ten days’ constituted a waiver of the time in which to file a motion for new trial or motion in arrest of judgment. Similar notations were found not to constitute such waiver in Faurie v. State, supra. Therefore, we have reached the conclusion that the March 7, 1975, sentence was premature.

We apply the procedural presumption of regularity of Green v. State, supra, to the sentence which was pronounced in the instant case, as it does not affirmatively appear from the record that Article 42.03, supra, was violated. Therefore, we hold that, without a transcription of the court reporter’s notes or formal bill of exception showing that a defendant did not, in fact, waive the time in which to file a motion for new trial or make a motion in arrest of judgment prior to the pronouncement of sentence, we will presume that any sentence pronounced before the expiration of the 10 day period after the assessment of punishment was pronounced in a timely fashion.

Our examination of the record reveals nothing which should be reviewed as unassigned error in the interest of justice under Article 40.09(13), Vernon’s Ann.C.C.P. Nothing is presented for review.

The judgment is affirmed.

VOLLERS, Judge,

concurring.

While I certainly agree with the Presiding Judge that the procedural presumption of regularity is applicable to a situation like this in order to uphold the validity of the sentence which was pronounced, I feel that the Court has not gone far enough in solving the problem which is presented in cases such as this. It appears that the present opinion leaves open the question that the appellant could come back at some point, many days past the time in which to file a motion for new trial, and establish a record showing that there was in fact no waiver, other than by silence, of the ten day period in which to file a motion for new trial. I find such a position lacking.

Article 40.05 V.A.C.C.P. provides that: “A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury .

It thus appears that the legislature has given every convicted defendant the right to file such a motion in order to develop such facts as may be necessary to convince a trial court that he should be granted a new trial, or to make a record for appeal to the Court of Criminal Appeals. It has long been recognized by this Court that such a motion is not a prerequisite to an appeal but is necessary in order to preserve certain matters for review by the Court of Criminal Appeals when they involve facts which are not reflected by the record. The timetable makes it imperative that the defendant, or his attorney, make a decision within ten days as to whether or not he needs or wants to file a motion for new trial. Failure to file such a motion ends the matter, unless the trial judge authorizes, for good cause shown, the filing of a late motion for new trial.

To implement the defendant’s right to file a motion for new trial and develop such matters the legislature further provided in Article 42.03 C.C.P. that:

“If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the presence of the defendant at any time after the expiration of the time allowed for making the motion for new trial or the motion in arrest of judgment . .”

Thus it is clear that in the proper order of procedure provided for by the legislature a careful trial judge would wait ten days before pronouncing sentence to see whether or not the defendant wished to file a motion for new trial, which he has a right to do, or determine whether the defendant waives such period of time. But we are not dealing with the ideal situation; we are dealing with one in which sentence was pronounced within the ten day period of time after verdict. We are further presented with a situation where it has never been suggested, either to the trial court or this Court, that the defendant wished to present a motion for new trial or that he had any grounds to review on appeal which must be preserved by the presentation of evidence at a motion for new trial.

The right which has been granted to the defendant by the act of the legislature to file a motion for new trial or motion in arrest of judgment within ten days from the date of conviction is certainly no more significant or fundamental than rights guaranteed by the Constitution of the United States or Constitution of the State of Texas. Cases are legion which hold that constitutional rights can be waived by failure to assert them. Therefore, it would be perfectly logical that unless there is a specific waiver by the appellant or his attorney there would be a right to file a motion for new trial or motion in arrest of judgment within ten days after conviction, whether the sentence was pronounced or not; but this right would be waived by failure to assert it. That is exactly what we have in this case.

It would appear that the sentence which was pronounced was “voidable” upon the option of the appellant by attempting to file a motion for new trial or motion in arrest of judgment within ten days after verdict. If such a right was urged then the sentence should be set aside at appellant’s option. This record clearly reflects that he did not choose to do this and made no attempt to assert such a right.

I therefore concur in the result that the sentence pronounced before expiration of the ten day period after assessment of punishment is not void and this Court has jurisdiction to consider this appeal.

ROBERTS, Judge,

dissenting.

A trial judge is more than an umpire. He is not simply a caller of balls and strikes. He is “the principal public official whose obligation it is in a criminal case to see that ‘all individuals are tried and sentenced in accordance with law.’ ” Moon v. State, 372 S.W.2d 681, 689 (Tex.Cr.App.1978) (opinion of Roberts, J., on rehearing). He is assumed to know the law, both substantive and procedural.

Procedural law for criminal cases is established by the Legislature so that a lawyer representing clients may go anywhere in the State and be assured that the procedure will be the same. See Bouie v. State, 565 S.W.2d 543, 554-555 (Tex.Cr.App.1978) (dissenting opinion).

In this case the trial judge pronounced sentence without allowing the necessary ten days to elapse for a motion for new trial or motion in arrest of judgment, and, in addition, he failed to ascertain if the appellant wished to waive his right to this ten-day period. The right to have ten days to file these motions is fundamental to our procedure. See Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976), and authorities there cited.

As in Woods, I would dismiss the appeal.


author: DALLY, Judge.

text:
    Charles Michael FINLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56082.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 15, 1978.

      James M. Stanley, Fort Worth, for appellant.
    Tim Curry, Dist. Atty. and Marvin Collins, Howard A. Borg, Paul Sorenson and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for burglary of a motor vehicle; the punishment, enhanced by a prior felony conviction, is imprisonment for ten years.

Appellant contends that the trial court erroneously permitted the introduction of testimony concerning an extraneous offense. We agree and reverse the conviction.

At 6:15 a. m. on the morning of September 22, 1976, Weldon Daniels arrived at the Frito-Lay warehouse in Fort Worth, where he was employed. He left his locked car in the employee parking lot. Daniels returned to his car at 7:00 a. m., at which time he saw appellant walking away from his car toward another car parked nearby. Daniels observed that his car had been broken into and his CB radio had been removed. Daniels approached appellant, who was standing beside the second car. In the back seat of this car, Daniels saw his CB radio. In answer to Daniels’ questions, appellant identified himself, acknowledged ownership of the second car, and denied any knowledge of how Daniels’ radio had come to be in the back seat. He told Daniels that he was employed at PVI, a business one block away, and had given a man named Jerry Jackson a ride to Frito-Lay, where Jackson was to apply for a job. Daniels and a fellow employee searched for Jackson, but were unable to find him. Daniels then called the police, despite appellant’s request that he not do so, and appellant was subsequently arrested.

During his trial, appellant called Danny Jones as a witness. Jones testified that he was the man to whom appellant had given a ride on the morning in question. He further testified that he had given a false name to appellant, and had stolen Daniels’ radio and placed it in appellant’s car for safe keeping until he could return for it. He stated that appellant had had no knowledge of the theft. At the time of the trial, Jones was on probation for burglary and was in custody on two indictments for burglary of a vehicle. Jones and appellant were being held in the same tank in the Tarrant County jail. Appellant also called the personnel manager at PVI, who testified that he was employed there on the date in question.

In rebuttal, the State called Jimmy Coffee. Over appellant’s objection, Coffee testified that in August, 1975, appellant had offered to sell him two CB radios for $45.00. Coffee gave appellant the money, and they drove to a vacant house. Appellant entered the house and never returned, apparently exiting through a rear door or window. Coffee never saw the radios appellant offered to sell.

Appellant contends that the trial court erred in admitting Coffee’s testimony since it concerned an extraneous offense, was not relevant to any fact in issue, and was highly prejudicial. The State argues that Coffee’s testimony was admissible to rebut appellant’s defensive theory and to prove his guilty knowledge.

Evidence of other unrelated offenses is not generally admissible, since a defendant may not be tried for some collateral crime or for being a criminal generally. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). However, evidence which shows the commission of another offense by the accused is admissible if it tends to prove the offense charged or is relevant to a material fact issue, such as a defensive theory raised by the accused. Albrecht v. State, supra; 2 McCormick and Ray, Texas Law of Evidence, Sec. 1521 (2d ed. 1956).

Coffee’s testimony concerned an alleged theft of money committed by appellant thirteen months prior to the charged offense. The only similarity between the extraneous offense and the charged offense was that Coffee was induced to give appellant money on the basis of a deceptive claim by appellant that he had two CB radios for sale. There is no evidence that appellant actually possessed the radios he offered to sell to Coffee or, if he did, that he obtained them by breaking into automobiles. In short, the evidence of the extraneous offense did not tend to connect appellant with the theft of Daniels’ radio, nor did it rebut appellant’s defensive theory. We hold that the trial court erred in admitting Coffee’s testimony over appellant’s objection.

The other evidence against appellant, although strongly suggestive of guilt, was circumstantial. Appellant’s defensive theory, and Jones’ testimony in support thereof, was not so implausible as to be incapable of belief by the jury. Under the circumstances, it cannot be said that the erroneous introduction of Coffee’s testimony was harmless.

The judgment is reversed and the cause remanded.


author: VOLLERS, Judge.

text:
    Ex parte Linda BRESCO. Ex parte Jerry BRESCO.
    Nos. 58308, 58309.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 15, 1978.

      Geoffrey Gay, Fort Worth, for appellants.
    Tim Curry, Dist. Atty., and Ronald G. Knight, Asst. Dist. Atty., Fort Worth, Jim D. Yollers, State’s Atty., Austin, for the State.
   OPINION

VOLLERS, Judge.

This is an appeal from a hearing on an application for writ of habeas corpus. At the hearing before the trial court counsel appearing with the petitioners stipulated that there was an outstanding warrant in the Justice of the Peace court for their arrest in an extradition matter. The record reflects that he did not agree that it was a valid warrant, nor was there any other evidence introduced showing why the petitioners were being detained.

At the hearing of this matter before the district court there was argument by counsel for both petitioners and the State, but no evidence was introduced other than the stipulation that there was a warrant for their arrest in the Justice of the Peace court. The transcript in this cause before this Court reflects that there are copies of a capias issued in the State of Florida for Linda Bresco and an information filed in the circuit court in and for Sarasota County, Florida, charging Linda Bresco with removal of a child from the state contrary to court order. The record also reflects a fugitive complaint against Linda Bresco alleging that she is a fugitive from justice from the State of Florida, but it does not show that this was filed in any court. The record also contains a restraining order and order to show cause issued from the circuit court of Sarasota County, Florida, involving Linda Bresco. The statement of facts from the hearing of this matter before the district court fails to reflect that any of these instruments were offered in evidence in any manner and they will not be considered on appeal.

Even if we assume that there was a valid warrant from the Justice of the Peace court charging the petitioners with being fugitives from justice such a showing is insufficient to establish probable cause for such detention. Ex Parte Wright, 138 Tex. Cr.R. 350, 136 S.W.2d 212 (1940). Cf. Ex Parte Garcia, 547 S.W.2d 271 (Tex.Cr.App.1977).

Since this record does not reflect that the State has shown a valid reason why petitioners should be restrained of their liberty, the relief which they request is granted and they are ordered discharged from custody.


text:
    Ex parte Charles H. Fowler, Jr. Charles H. FOWLER, Jr., Petitioner, v. Fred HOOEY, Judge, 180th District Court, Harris County, Texas, Respondent.
    No. 58639.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 15, 1978.

      No attorneys appearing.
   OPINION ON COURT’S MOTION FOR REHEARING

VOLLERS, Judge.

The prior opinion of the Court is withdrawn.

We have before us a purported appeal from an order of the trial court in a habeas corpus proceeding in which the appellant sought a reduction in bail pending appeal and in which appellant also sought a transfer from the Texas Department of Corrections to the Harris County Jail pending his appeal.

We also have before us an original application for writ of mandamus in which the petitioner requests this Court to compel the Honorable Fred Hooey, the trial judge in said habeas corpus matter, to conduct a hearing in response to his said application for writ of habeas corpus.

In looking at the records before us in regard to both the habeas corpus and the mandamus matters, we find the facts to be as follows:

The appellant-petitioner, Fowler, was convicted of theft under a five count indictment and was assessed a punishment of fifteen years’ confinement in the Texas Department of Corrections and a fine of $1500 on each count. He thereafter gave notice of appeal and was committed to the Texas Department of Corrections pending his appeal.

On March 22, 1978 appellant-petitioner filed an application for writ of habeas corpus in the trial court, asking that he be transferred from the Texas Department of Corrections to the Harris County Jail on the ground that he was sentenced to confinement not to exceed fifteen years and that he had not requested to be transferred to the Texas Department of Corrections. In that application he also requested that bail pending appeal be set in a reasonable amount. In response to this application, the trial judge entered an order setting bail at “$15,000 on each count or a total of $75,000 . . . ” The trial court made no order respecting a change of custody. No appeal was taken from the trial court’s action.

On May 3, 1978, appellant filed a second application for writ of habeas corpus in which he again sought to be transferred from the Texas Department of Corrections to the Harris County Jail on the same ground alleged in his first application. Also, in the second application, he sought a reduction of bail from $75,000 to $25,000. The trial judge denied the second application without a hearing. There is no indication in the record that the trial court ever issued a writ of habeas corpus.

As to the application for writ of mandamus, two questions are presented. First of all, petitioner requests that this Court require the trial court to order his transfer from the Texas Department of Corrections to the Harris County Jail. This relief is denied.

The petitioner bases his contention upon the provisions of Article 44.04(c), V.A.C.C.P. which provides that

“Pending the appeal from any felony conviction where the punishment does not exceed 15 years confinement, the trial court may deny bail and commit the defendant to custody if there exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final

It is apparently the petitioner’s reasoning that since his punishment does not exceed fifteen years’ confinement he should not be transferred to the Texas Department of Corrections pending the outcome of his appeal. This reasoning overlooks the provisions of Article 42.09, V.A.C.C.P. pertaining to the delivery to the place of confinement. That article provides:

“Sec. 4. If a defendant is convicted of a felony and sentenced to death, life, or a term of more than ten years, in the Department of Corrections and he gives notice of appeal, he shall be transferred to the Department of Corrections on a commitment pending a mandate from the Court of Criminal Appeals. [Emphasis added.]
Section 5. If a defendant is convicted of a felony and his sentence is a term of ten years or less and he gives notice of appeal, he shall be transferred to the Department of Corrections on commitment pending a mandate from the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court. Upon a valid transfer to the Department of Corrections under this section, the defendant may not thereafter be released on bail pending his appeal.”

Section 4 specifically provides for transfer to the Department of Corrections when there is a term of more than ten years in the Department of Corrections. It should be noted that nothing is said in Section 4 about the defendant not thereafter being released on bail pending his appeal, as is provided under the transfer under Section 5 upon the defendant’s request. It is therefore apparent that there is no conflict between Article 42.09 and Article 44.02. As was pointed out in Ex parte Briones, 563 S.W.2d 270 (Tex.Cr.App.1978), in harmonizing the provisions of these two articles

“It is presumed the legislature intended that both amendments be given effect, and we will give both statutes effect if a reasonable construction may be found to produce harmony rather than conflict between them. See, Art. 5429b-2, Sec. 3.03(5), supra. Construing Art. 42.09 to address only the manner of delivery of appellant for confinement, and construing Art. 44.04(c) to control the determination of whether to confine appellant, we hold the apparent conflict is thereby resolved, and both statutes may be given effect. These constructions we find to be in accord with the legislative intent.”

The trial judge’s refusal to transfer petitioner from the Texas Department of Corrections to the Harris County Jail was correct and petitioner’s request for such transfer is denied.

The second question presented by the application for writ of mandamus is whether or not the trial judge in this cause shall be required to hold a hearing to determine whether or not the bail is excessive. It appears that the application for writ of habeas corpus raising this issue with the trial court was presented to the trial judge in this cause but that he apparently refused to issue the writ. Whether or not a trial judge issues a writ of habeas corpus is a matter of discretion and not the proper subject for a writ of mandamus. Ex parte Benson, 153 Tex.Cr.R. 598, 223 S.W.2d 934 (1949). However, the use of habeas corpus to determine the issue of bail on appeal seems to have been supplanted by the provision of Article 44.04 supra, pertaining to bond pending appeal. In the revision of Article 44.04 at the last session of the legislature, the legislature saw fit to provide that

“(g) The right of appeal to the Court of Criminal Appeals in this state is expressly accorded the defendant for a review of any judgment or order made hereunder, and said appeal should be given preference by the Court of Criminal Appeals.”

When this provision is considered in light of subsection (c), which was previously discussed, and subsection (d), it becomes apparent that the trial judge should have treated the application for writ of habeas corpus as a motion for reduction of bail under Article 44.04(d). In order to have such a motion reviewed under the provisions of subsection (g), the petitioner should have given notice of appeal to this Court. Since notice of appeal was not given, we do not have jurisdiction to review the matter, and we shall no longer review such matters by habeas corpus since a specific right of appeal is provided.

In regard to the question of appealing such an order by the trial court, it would appear that the application of the provisions of Article 40.09, V.A.C.C.P. would result in delay and defeat of the legislative intent that such matter should be reviewed expeditiously, therefore the timetables set out in that article do not apply to such an appeal. Cf. Ex parte Watson, 455 S.W.2d 300 (Tex.Cr.App.).

For the reasons stated, the application for writ of mandamus is denied. Since we will no longer review matters pertaining to bail pending appeal by habeas corpus, the application for writ of habeas corpus is also denied.

      . Article 44.04(d), V.A.C.C.P. provides:
      “(d) If the defendant is on bail when the trial commences and is convicted of a misdemeanor appealable to the Court of Criminal Appeals or of a felony and his punishment is assessed at a fine or confinement not to exceed fifteen years, or both, he shall remain on such bail and the bail shall not be considered discharged until his conviction has become final, either through his failure to obtain a new trial or to perfect or pursue an appeal or through final affirmance by the appellate court on appeal and the filing of a mandate thereof with the clerk of the trial court.
      After conviction, either pending determination of any motion for new trial or pending final determination of the appeal, the court in which he was tried may increase or decrease the amount of his bail, as it deems proper, either upon its own motion or the motion of the State or of the defendant, which bail and the sureties thereon shall be approved by such trial court in the event any additional bond is required.” (Emphasis added.)

      . It should be noted that the time for giving notice of appeal is not provided by Article 44.-04, V.A.C.C.P. so the general provisions of Article 44.08(c), V.A.C.C.P. would control.


author: ONION, Presiding Judge.

text:
    Ex parte Donald Wayne LOWE.
    No. 59346.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 15, 1978.
    Thomas D. White (on appeal only), Houston, for appellant.
    No attorneys for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

Appeal is taken from an order denying release in a habeas corpus proceeding in which appellant sought release on bail pending appeal from an order revoking probation.

The record reflects that on December 5, 1977 the appellant was convicted of the offense of burglary of a habitation. The jury assessed punishment at ten (10) years in the Department of Corrections. On February 14, 1978 the trial court suspended the sentence and placed the defendant on probation for the term of the said sentence.

Appellant’s probation was subject, among other things, to the following conditions:

“A. Commit no offense against the laws of this state or of any other State or of the United States;
“B. Avoid injurious or vicious habits and completely abstain from the consumption of alcohol in any form, publicly or privately, as well as, completely abstain from consumption of any other mind altering drugs.
* * * * * *
“G. Remain within the limits of Brazo-ria County, Texas except for trips out of the county for the purpose of receiving medical care or treatment by his physicians. If for good and sufficient reasons, probationer herein desires to change his residence within the State, he shall file an application to his supervising probation officer, which transfer will be subject to the Court’s consent and regulations as the Court may require in the absence of a probation officer in the locality to which the probationer is transferred;
* * * * * sis
“J. He be placed under a curfew and the Defendant is required to remain in his residence or place of habitation every night between the hours of 11:00 o’clock P.M. and 6:00 o’clock A.M. of the following day.
***** *’>

Although this habeas corpus record does not include the motion to revoke probation, it clearly reflects that on April 10, 1978 a hearing was held before the trial court which found that the appellant had violated the terms and conditions of his probation. In revoking appellant’s probation, the trial court made these findings concerning probationary violations five days after probation was granted:

“A. That the Court finds the defendant, DONALD WAYNE LOWE, did on or about February 19,1978, in Pasadena, Harris County, Texas, unlawfully intentionally and knowingly appear in a public place under the influence of alcohol to the degree that said defendant might endanger himself and others.
“B. That the Court finds the defendant, DONALD WAYNE LOWE, did consume alcohol on or about February 19, 1978, in Pasadena, Harris County, Texas.
“G. That the Court finds the defendant, DONALD WAYNE LOWE, did leave the limits of Brazoria County, Texas and enter into Harris County, Texas on or about February 19, 1978, without the consent of or knowledge of the Court or his probation officer and for a purpose other than receiving medical care and treatment by his physicians.
“J. That the Court finds the defendant, DONALD WAYNE LOWE, on or about February 19, 1978, in Harris County, Texas was out of his residence and place of habitation between the hours of 11:00 o’clock P.M. and 6:00 o’clock A.M. towit: 3:30 A.M.”

Sentence was imposed and notice of appeal given. The record further reflects that on July 28, 1978 the trial court denied appellant’s request for bail pending appeal, concluding that his dependence upon alcohol would likely lead him to commit other offenses while on bail.

Appellant first contends that the trial court abused its discretion in refusing to set bail. Article 44.04(c), V.A.C.C.P., provides that:

“Pending the appeal from any felony conviction where the punishment does not exceed fifteen years’ confinement, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final. The court may impose reasonable conditions on bail pending the finality of his conviction. On a finding by the court on a preponderance of the evidence of a violation of a condition, the court may revoke the bail.” (Emphasis supplied.)

The record in the instant case clearly supports the trial court’s conclusion that the appellant would likely commit other offenses while on bail. The psychiatric evidence referred to by the trial court in its findings provided a direct causal link between appellant’s alcohol addiction and his criminal activities. We conclude that no abuse of discretion has been shown or asserted. Appellant’s first ground of error is overruled.

Relying on Article I, § 11 of the Texas Constitution, the appellant next claims that the denial of bail in this case is unconstitutional. This court has held that Article I, § 11 of the Texas Constitution, which provides that: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident,” has reference to prisoners before conviction, and that prisoners after conviction are not guaranteed the right to bail pending appeal. Nielssen v. State, 446 S.W.2d 882 (Tex.Cr.App.1969); Ex parte McBride, 108 Tex.Cr.App. 618, 2 S.W.2d 267 (1928). Moreover, appellant concedes that pursuant to Article 44.04, supra, the trial court may deny bail when it would appear likely that the defendant would commit another offense while on bail. As we concluded above, the record before us clearly supports the trial court’s decision in this cause.

Finding no reversible error, we affirm the judgment.


text:
    Willie CHASE v. The STATE of Texas, Appellee.
    No. 59502.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 15, 1978.

      J. Manuel Banales, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Rene Whittle, Asst. Dist. Atty., Corpus Christi, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

Appellant was convicted of the offense of forgery. The jury found that he had been twice before finally convicted of felony offenses and the court assessed punishment at life imprisonment.

In this appeal the appellant raises two grounds of error, both of which deal with his contention that he was wrongfully placed in jeopardy again upon this trial. A recitation of the facts is not necessary in order to dispose of this appeal.

On June 28,1977 appellant was convicted by a jury upon his plea of not guilty of the offense of forgery. Appellant gave timely notice of appeal to the Court of Criminal Appeals and filed a timely appellate brief with the trial court setting forth several grounds of error. In his second ground of error the appellant complained that

“The trial court erred in denying appellant’s timely motion for instructed verdict at the close of the State’s case for the reason that the evidence is wholly insufficient as a matter of law to support a verdict of guilty.”

Subsequent to the filing of the appellate brief by appellant, in accordance with the provision of Article 40.09, V.A.C.C.P., the trial court entered the following order:

“BE IT REMEMBERED that on this 5th day of Jan. A.D. 1978, the Court had before it the Record on Appeal in the above styled and numbered cause. Pursuant to ARticle [sic] 40.09, Section 12, V.A.C.C.P. the Court finds that the Appellant’s ground of error No. 2 in his appellate brief is correct.
It Is Therefore Ordered that the Appellant, Willie Chase, in the above styled and numbered cause, is hereby granted a new trial.
Vernon Harville /s/ JUDGE PRESIDING

It is now the appellant’s contention that a judgment of acquittal should have been entered and that he should not have been retried because the new trial was granted upon a determination that the evidence was insufficient to support the verdict of guilty. The State takes the position that the prior decisions of this Court authorize the retrial of the accused any time a new trial is granted at his own request. See Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975). Although the State’s contention is correct as to the prior decisions of this Court, it should be noted that on June 14, 1978 the United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), held that where an appellate court determines as a matter of law that the evidence is insufficient it is a violation of the double jeopardy provision of the United States Constitution to remand such a cause to the trial court for retrial. The reasoning of that Court was based upon the simple proposition that if the evidence was insufficient the trial judge should not have submitted the cause to the jury for its consideration, and even if improperly submitted to the jury, the jury should have acquitted. As to the question of retrial after a determination of insufficiency of evidence by the appellate court it was noted

“. . . such an appellate reversal means that the government’s case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous— it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.”

If the evidence was insufficient as a matter of law and the jury should have returned a verdict of acquittal the double jeopardy provision of the United States Constitution prohibits a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to present at the first proceeding.

It would appear that the same reasoning would apply to the instant case. The appellate process was invoked and the trial court was called upon to review the sufficiency of the evidence which had been presented to the jury in the first trial. When the trial judge determined that the evidence was insufficient as a matter of law to sustain the guilty verdict he in effect determined that the evidence was so deficient that the question should not have even been submitted to the jury in the first instance. Since the jury in the first trial was not authorized to return a verdict of guilty, as a matter of law, it should have acquitted the appellant on the first trial. Such an acquittal would have been accepted by all as within the proper function of the jury in that trial. Since the trial judge subsequently determined that this should have been done, as a matter of law, this appellant should not have been subjected to a retrial.

It was therefore error for the trial court to overrule the appellant’s plea of former jeopardy in this cause. The judgment of conviction is reversed and this cause is remanded to the trial court for entry of a judgment of acquittal.

      . The standard for review by the trial court on sufficiency of the evidence is not to consider whether or not he believes or disbelieves any witness, but merely to determine whether or not, in looking at the evidence in a light most favorable to sustain the verdict, there is any evidence which the jury could have believed in arriving at such a verdict. This is the same standard of review by which this Court reviews sufficiency of the evidence. Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977).