author: DUNCAN, Judge.

text:
    STATE of Tennessee, Plaintiff-in-Error, v. Eddy DANIELS, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 5, 1975.

      R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Baxter Key, Jr., Dist. Atty. Gen., Carthage, for plaintiff-in-error.
    Reneau & Reneau, Celina, for defendant-in-error.
   OPINION

DUNCAN, Judge.

The Honorable Hillard M. Roberts, Judge of the Criminal Court of Clay County, dismissed a presentment against the defendant in error, Eddy Daniels, on the grounds of double jeopardy. The State has appealed therefrom, alleging that the trial court erred in holding that the defendant had been once placed in jeopardy in the General Sessions Court of Clay County.

The record indicates that the parties entered into a stipulation of facts, which reflects the following:

The defendant, Eddy Daniels, was arrested on September 19, 1974, by the Sheriff of Clay County and charged with operating a motor vehicle while under the influence of intoxicants. A State warrant was issued and Daniels was brought to trial on the charge in the General Sessions Court of Clay County on October 25, 1974. At that time the defendant entered a written plea of not guilty, waived his right to a trial by indictment or presentment preferred by a grand jury, and waived his right to a trial by a jury of his peers. Thereafter, the witnesses were sworn. At the conclusion of these proceedings, the arresting officer moved the court to dismiss the case. The motion was granted and the warrant was dismissed without the permission of the defendant and over his objection.

Subsequently, the arresting officer appeared before the grand jury of Clay County and that lawfully constituted body returned a presentment against the defendant. It is stipulated that the occurrences set forth in the State’s warrant and in the presentment were one and the same in law and fact and were not separate offenses.

On February 24,1975, the trial court sustained a plea of double jeopardy, dismissed the presentment and discharged the defendant.

The sole issue to be determined in this case is at what point does jeopardy attach in a nonjury case.

In Tennessee, the law is clearly defined that jeopardy attaches in a jury case when a defendant is put on trial before a court of competent jurisdiction, upon an indictment sufficient in form and substance to sustain a conviction and the jury has been impaneled and sworn. Etter v. State, 185 Tenn. 218, 205 S.W.2d 1 (1947); King v. State, 216 Tenn. 215, 391 S.W.2d 637 (1965); State v. Johnson, 218 Tenn. 433, 404 S.W.2d 244 (1966); Bell v. State, 220 Tenn. 685, 690, 423 S.W.2d 482, 485 (1968).

It is not necessary that the indictment be read or that testimony be heard as a prerequisite for the attachment of jeopardy in a jury trial. In Bell v. State, supra, our Supreme Court stated:

“The contention of the plaintiff in error is based upon Section 10 of the Declaration of Rights found in Article 1 of our Constitution, that ‘no person shall, for the same offense, be twice put in jeopardy of life or limb.’ This provision in our Constitution, which also appears in the Fifth Amendment to the Federal Constitution, is from the common law.
“In effect this provision as interpreted by the courts has been to protect the citizen against oppression and prosecution even though the persons might be guilty. In effect it means when one is put on trial in a court of competent jurisdiction, on a valid indictment and a plea thereto, has a jury sworn upon an issue and the jury is charged with the fate of the accused, that is, when the jury is sworn to try the issue upon the indictment and the plea thereto, before the reading of the indictment or the introduction of testimony, he is thus put in jeopardy. Ward v. State, 20 Tenn. 253; Tomasson v. State, 112 Tenn. 596, 79 S.W. 802, and many others.” (emphasis added)

Thus, the law being clear as to the point when jeopardy attaches in a jury case, we are now called upon in this appeal to determine when it attaches in a nonjury case. The parties acknowledge that they have found no Tennessee authorities on the point raised and in our research we have found none. For guidance, we look to authorities in other jurisdictions.

Many jurisdictions, even a majority perhaps, follow the rule that some testimony must be heard. Other jurisdictions have ruled that the stage of jeopardy is reached when the witnesses are sworn and that the hearing of testimony is not required.

In researching the question presented in this appeal, we find the following language in 22 C.J.S. Criminal Law § 241, at 639-40 (1961):

“If the trial is to the court without a jury, it is well settled that, for the purpose of determining when jeopardy attaches, the trial begins at the time of the commencement of the taking of testimony, that is, when the first witness is duly sworn, and, accordingly, in such a case, jeopardy begins after accused has been indicted, arraigned, and has pleaded, and the court has begun to hear the evidence, or the trial has begun by the reading of the indictment to the court. In the application of these principles it is assumed that there has been a plea of not guilty, and that the court has jurisdiction.”

For authorities supporting the above propositions, see the cases cited under the foregoing section.

In the discussion and summary set forth in 49 A.L.R.3d 1039, 1041-43 (1973), it is readily apparent that there is a great divergence of opinion as to when jeopardy attaches in a nonjury case, in spite of the fact that many cases say the point is “well settled.” We refer to this summary of the question and quote therefrom, as follows:

“Double jeopardy, a second ‘exposure to danger,’ is forbidden by the Fifth Amendment, and the prohibition is applied to the States through the Fourteenth Amendment. A person is said to be in legal jeopardy when he is put on trial before a court of competent jurisdiction on an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance.
“The law appears to be somewhat more equivocal, however, as to the question of when jeopardy attaches in a non jury trial. While the phrase ‘well settled’ appears with some frequency in discussions of when jeopardy attaches in a non jury trial, an examination of the cases indicates considerable divergence of opinion. The commencement of trial, the swearing of the first witness, the taking of testimony, and the hearing of evidence, have all been held to be the point at which jeopardy attaches. The New York courts have recognized at least two of the above rules.
“In some instances there appears to be an actual difference of view, but in others there seems to be merely a difference in phraseology. Repeatedly, the phrases stating the point at which jeopardy attaches are defined in terms of one another and are equated one to another when they need not be synonymous.
“A few courts have stated that jeopardy attaches in a nonjury trial when the trial has begun, seemingly an imprecise standard. In that connection, it has been stated that the trial begins when the first witness is sworn and also that the swearing of witnesses precedes the beginning of trial. Which, if either, of these views is adopted may depend on whether the witnesses are sworn one at a time as they are called to the stand, or as a group as soon as the case is called. In the latter case, the swearing of witnesses has been said to be an administrative procedure followed for the convenience of the court.
“A recent article construes the Model Penal Code to suggest that jeopardy should ‘attach in all cases upon the swearing of the first witness, evidencing the belief that there should be no distinction between jury and nonjury trials.’ This view, however, would also require a change in the time of attachment in a jury trial, since such time is now at the swearing of the jury, not at the swearing of the first witness.
“The introduction of testimony has also been said to be the point at which jeopardy attaches in a nonjury trial, and to be the equivalent of the swearing of the jury in a jury trial. It is, however, unclear whether the term ‘taking of testimony’ is meant by the courts to be different from the term ‘taking of evidence.’ It seems apparent that the receipt of evidence may precede the taking of testimony, and one case seems to indicate that testimony is taken when the first witness is sworn.
“ ‘When the court begins to hear evidence’ is the term most often used to describe the point at which jeopardy attaches in a nonjury trial. One court has equated the commencement of the taking of evidence with the swearing of the first witness, but it has also been held that the two are different and that the words ‘hearing of evidence’ mean ‘just what they state’ — to actually hear evidence. Thus, in a situation where, after the witnesses had been sworn, a nolle prosequi was entered when the trial judge excluded certain testimony, it was held that jeopardy had not attached since no evidence had been heard. Jeopardy has been held to have attached and not to have attached in cases where jeopardy has been said to begin when evidence is heard. This difference in outcome may have resulted either from the fact that the stage reached in the trial was not the same in each case, or from the fact that the courts differed in their definition of ‘hearing of evidence.’
“New York courts have held in some cases that jeopardy attaches, in a nonjury trial, when the first witness is sworn, in other cases that it attaches when the first evidence is heard, and in one case that the swearing of the first witness is the commencement of the taking of testimony. Consistent definition lacking, the New York law must be considered unsettled.”

For authorities supporting the above propositions, see the cases annotated under the cited discussion.

The language and rationale of some of the cases which have addressed this issue strike us as being illogical. For instance, Newman v. U. S., 133 U.S.App.D.C. 271, 410 F.2d 259 (1969), in holding that jeopardy attaches in a nonjury trial at the point when the court has begun to hear the evidence, states that there is a difference whether the witnesses are sworn all together or singly. What possible difference this could make is not pointed out, except that the court indicates that swearing witnesses in a group is for the convenience of the court. To us, this is a distinction without a difference.

The Supreme Court of Florida, in Bernard v. State, Fla., 261 So.2d 133 (1972), agreed with the Newman holding, and adopted the test that presentment of proof must begin. We note that when the Bernard case was before the Florida District Court of Appeals, 254 So.2d 38, 40 (1971), the dissenting judge took the position that the majority confused the taking of testimony with the taking of evidence. It was his conclusion that, “When the first witness is sworn, regardless of whether testimony has or has not been taken, eo instanti the trial judge begins to take note of the evidence and jeopardy attaches.” Evidently, he felt that the defendant’s motion to exclude testimony and the subsequent sustaining of this motion was in effect, the offering of evidence.

In Jones v. State, 17 Md.App. 504, 506, 302 A.2d 638, 639-40 (1973), the court stated without further clarification, that:

“The double jeopardy claim of the Fifth Amendment is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707. The constitutional policies underpinning the Fifth Amendment’s guarantees are implicated when an accused in a criminal proceeding is put on trial before the trier of fact, whether the trier be a jury or a judge. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199; Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974.”

In a later decision, the Maryland court clarified “put on trial” to mean when the first witness is sworn. See Blondes v. State, 19 Md.App. 714, 733-34, 314 A.2d 746, 758-59 (1974). In this case, the Maryland court, in holding that jeopardy attaches in a bench trial when the first witness is sworn, regardless of whether any testimony is heard or not, said:

“With respect to a non-jury trial, the law is more equivocal as to the time when jeopardy attaches. In addition to the imprecise standard of ‘the commencement of trial’, the cases refer to ‘the swearing of the first witness’ or ‘the introduction of testimony’, or ‘the hearing of evidence’. In some cases these three phrases seem to be treated as synonymous. In others there appears to be an effort to distinguish them. When the witness takes the oath, he is sworn; when he gives his name and address, testimony is introduced; when he testifies on the merits, evidence is heard. The majority of the cases couch the rule in terms of the hearing of evidence.

(Citations omitted)

“Whether there be a real distinction in the various wordings of the rule or not, we think that the rule is best expressed, as to a non-jury trial, in terms of the swearing of the first witness. This, it appears to us, is least subject to uncertainty, and requires little interpretation or construction. Under such terms, the time jeopardy attaches begins as mechanically as when the jury is sworn. Therefore we adopt as the rule with respect to a non-jury trial, that the indictment, information or charging document having been brought to trial on the general issue, jeopardy attaches when the first witness is sworn.”

In Indiana, the courts have stated that jeopardy attaches “when a trial commences” before a judge or jury. In Crim v. State, Ind.App., 294 N.E.2d 822, 828 (1973) that court said:

“It is elementary under both the Indiana and Federal Constitutions and cases that jeopardy attaches when a criminal trial commences before a judge or jury and this point has arrived when a jury has been selected and sworn even though no evidence has been taken.”

While the Crim case involved a jury trial situation, it laid the foundation for a subsequent Indiana case, Loza v. State, Ind.App., 316 N.E.2d 678, 681 (1974), which stated that jeopardy attaches in a trial to the court “when the trial has commenced, i. e., when the first witness is sworn.”

California is another state which follows the rule that jeopardy attaches in a bench trial when the first witness is sworn. In People v. Upshaw, 117 Cal.Rptr. 668, 670-71, 528 P.2d 756, 758-59 (1974), the Supreme Court of California stated the rule and cited its predecessor authorities as follows:

“A person is in legal jeopardy for an offense when placed on trial on a valid accusatory pleading before a competent court with a jury duly impaneled and sworn; or, if the trial is by the court, when the trial is ‘entered upon.’ (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 376, 93 Cal.Rptr. 752, 482 P.2d 664; People v. Hernandez (1967) 250 Cal.App.2d 842, 848, 58 Cal.Rptr. 835.) A court trial is ‘entered upon’ when the first witness is sworn. (Richard M. v. Superior Court, supra; People v. Sturdy (1965) 235 Cal.App.2d 306, 314, 45 Cal.Rptr. 203.)”

See also, People v. Ayala, 138 Cal.App.2d 243, 291 P.2d 517 (1956), for a similar ruling.

The Louisiana Supreme Court, in the case of State v. Yokum, 155 La. 846, 99 So. 621, 625 (1923), also applied the “witness sworn” test, and said:

“In the case at bar, the accused was not tried before a jury for manufacturing intoxicating liquor for beverage purposes. He could not have been constitutionally tried in that manner. However, the general principle is the same, whether the case is tried by the court with or without a jury. We therefore feel safe in holding that jeopardy attaches under section 9 of article 1 of the Constitution of 1921, when the case is tried by the court without a jury, the moment it is called for trial, and the trial has begun by the reading of the indictment to the court, or, when that instrument is not formally read to the court, when the first witness is sworn.”

In those eases which hold that some testimony must be presented, we find no logical reason stated as to why this should be required. As heretofore stated, our Tennessee cases hold that the hearing of testimony is not a prerequisite to the attachment of jeopardy in a jury case. We see no reason for a different rule in a nonjury case.

In State v. Coats, 17 N.C.App. 407, 194 S.E.2d 366, 371 (1973), that court said:

“The general rule is that jeopardy attaches when a defendant in a criminal prosecution is placed on trial (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been impaneled and sworn to make true deliverance in the case.”

After stating the above proposition, the court in the Coats ease proceeded to hold that a duly elected and qualified judge sitting as the trier of facts was in the same position as a duly sworn and impaneled jury, and satisfied requirement no. “5,” quoted above.

The United States Supreme Court equates the role of a judge at a bench trial with that of a jury, at a jury trial. United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250, 257 (1975). In that case the court said:

“Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that Clause apply to cases tried to a judge.”

In United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971), the Supreme Court, in discussing the question of double jeopardy and comparing the judge at a bench trial with that of a jury, said:

“The Fifth Amendment’s prohibition against placing a defendant ‘twice in jeopardy’ represents a constitutional policy of finality for the defendant’s benefit in federal criminal proceedings. A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society’s awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both of these considerations are expressed in Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), where the Court noted that the policy underlying this provision ‘is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ These considerations have led this Court to conclude that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge. (emphasis added). See Green v. United States, supra [355 U.S.], at 188, 78 S.Ct. at 223; Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949).”

We agree with the comparisons made in the cases of Coats, Jenkins, and Jorn. To us, it is logical and compelling that the judge’s role at a bench trial be considered the same as the jurors’ role at a jury trial. Each, when so sitting, is acting as the trier of the facts. If the hearing of testimony is not a prerequisite to the attachment of jeopardy in a jury trial, we see no reason why it be required in a nonjury trial.

In Rosser v. Commonwealth, 159 Va. 1028, 167 S.E. 257 (1933), the court held that when testimony is introduced in a non jury case, it is equivalent to swearing of the jurors in a jury trial. Again, we do not see the logic in equating the swearing of jurors in a jury trial with the hearing of testimony in a nonjury trial. In our opinion, there is no basis for such an analogy or comparison.

After reviewing the case law in other jurisdictions which have considered this issue, we think the “swearing of the witness or witnesses” test is the better rule to apply. Our reasons for so holding is that the “hearing of evidence” test and other such formulations are open to much speculation, conjecture, and various interpretations. The time at which jeopardy attaches in any given case should not be left open to dispute. It should be stated exactly and unequivocally. Tennessee has formulated an exact rule as to when jeopardy attaches in a jury trial. It is equally important to formulate an exact rule for a nonjury trial. We now do so by expressly holding that jeopardy attaches in a nonjury trial when a defendant is placed on trial (1) on an indictment, presentment (or other charging instrument), (2) before a court of competent jurisdiction, (3) before a competent judge who is present and ready to sit as a trier of the facts, (4) after a valid waiver is executed by the defendant, (5) after the entry of his plea, and (6) after the witnesses are sworn, whether they be sworn singly or in a group. We further specifically hold that if the above factors are present, then the hearing of testimony is not a prerequisite to the attachment of jeopardy.

In applying the foregoing rule to the case, sub judice, we find that all of the criteria set forth are present. The Sessions Court, before which the defendant was initially tried, was duly exercising the jurisdiction conferred on it by the Private Acts of Tennessee, 1949, Chapter 285; the defendant Daniels was charged in a warrant sufficient in form and substance; he waived his right to be tried only by indictment or presentment, likewise waiving a jury trial; his plea was entered, and the witnesses were sworn; and the judge, acting the same as an impaneled and sworn jury, was ready to hear the case. Thus, the trial had commenced and at that stage the prosecuting officer moved to dismiss his case. Under these facts we conclude that jeopardy had attached.

The warrant involved herein, since it was the instrument upon which the prosecution proceeded, must be considered analogous to an indictment or presentment. The defendant went to trial on that instrument, and after availing himself of his constitutional and statutory rights, the case was dismissed at the instigation of his prosecutor, without the permission of and over the objection of the defendant. In our view, the officer had his opportunity to prosecute the defendant at that time, and no other. Once the officer voluntarily surrendered his case, he was precluded from reinstituting the action by way of a new and separate prosecution.

Obviously, the inescapable inference to be drawn in the instant case is that had the defendant entered a plea of guilty, the officer would have allowed the case to proceed to a conclusion. However, when the defendant exercised his right to plead not guilty, the officer attempted to “punish” him by dismissing the case, and thereafter by way of a presentment, attempted to once more prosecute the defendant for the same offense.

Such avenues of potential abuse and harassment against our citizenry cannot be permitted or tolerated. In King v. State, supra, the court stated that the double jeopardy clause of Tennessee’s Constitution “is not merely protection from punishment for an offense of which the defendant has been once acquitted, but protection from ‘successive harassing prosecutions for a single offense.’ ” The right not to be harassed by successive prosecutions in the same case and the right not to be placed in jeopardy a second time for the same offense is as important as the right of trial by jury. Such rights are and should be safeguarded with equal diligence and care.

Therefore, for the reasons stated, we hold that the trial judge was correct in sustaining the defendant’s plea of double jeopardy. We affirm his dismissal of the presentment.

WALKER, P. J., and RUSSELL, J., concur.


source: Caselaw Access Project

author: GALBREATH, Judge.

license: Public Domain

text:
    Billy G. LAYNE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 20, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.
    Petition to Rehear Denied March 1,1976.

      H. H. Gearinger, Chattanooga, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, David H. Rotroff, Asst. Dist. Atty. Gen., Chattanooga, for defendant-in-error.
   OPINION

GALBREATH, Judge.

In his usual courtly and eloquent manner, the Honorable H. H. Gearinger of the Chattanooga Bar as counsel for plaintiff in error seeks to persuade us that the conviction in this case for second degree murder resulting from the reckless use of a motor vehicle should be reversed because the defendant at the time was under the influence of barbiturate drugs to such an extent and in such manner as to render him temporarily insane due to involuntary intoxication.

There is no dispute as to the physical facts adduced at trial from which the jury found the defendant, while driving his automobile in a northerly direction on U. S. Highway 27 in Hamilton County, crossed to the wrong side of the road and collided with another vehicle head-on, causing the death of its two occupants. It is contended on behalf of the defendant that due to addiction he had an overwhelming compulsion to ingest the drugs which rendered the resulting intoxication involuntary and that the disability produced by the intoxication was symptomatic of illness and disease rather than a state of criminality. There is no suggestion in the record that the ingestion of the drugs was in any sense a result of mistake, trick, accident, or coercion.

We are faced with two controlling factors preventing our concurrence with the theory so ably advanced on behalf of plaintiff in error. The jury found as a matter of fact that the defendant was not insane at the time of the accident. And, our Supreme Court has consistently rejected all alternatives to the test of insanity controlling in Tennessee as charged by the trial court and generally referred to as the M’Naghten test or rule. It may well be that our highest Court will someday modify the law now controlling us on this point, but until it does we are firmly bound by its former pronouncements in such cases as Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299. See also Smith v. State, 2 Tenn.Cr.App. 192, 452 S.W.2d 669.

Past decisions of our Supreme Court have characterized homicides resulting from operating an automobile under the influence of an intoxicant as involuntary manslaughter. Keller v. State, 155 Tenn. 633, 299 S.W. 803; McGoldrick v. State, 159 Tenn. 667, 21 S.W.2d 390, and Gentry v. State, 184 Tenn. 299, 198 S.W.2d 643. Other decisions have affirmed second degree murder convictions arising out of such vehicular deaths. Owen v. State, 188 Tenn. 459, 221 S.W.2d 515, and Rogers v. State, 196 Tenn. 263, 265 S.W.2d 559. In Rogers the Supreme Court directly held that even when the catastrophic “result may not have been intended:”

“. . . we nevertheless hold that a driver of an automobile while intoxicated and driving recklessly upon the public highway, will not be heard to say he had no intention of doing an injury to the person or property of another. The intent to commit a criminal act, . is evidenced by the act itself, so in the case at bar intent is evidenced (1) by the wilful drinking of intoxicating liquors, (2) knowingly driving an automobile while drunk at a dangerous and reckless rate of speed, to wit 60 and 70 miles an hour, and (3) with knowledge that his condition in thus driving was perilous to every person on the highway including the defendant himself. It would be a mockery of the law for one thus guilty of violating the criminal laws of the State, enacted for the protection of human life, to say he could not foresee the consequence of his act.”

From a close reading of the two lines of cases cited above it would appear that there has evolved over the past fifty years a blurring of the distinction between manslaughter and murder when the death results from the unlawful operation of a vehicle. Inasmuch as the highest Court of this State has consistently affirmed convictions for either offense found by the jury, we must affirm the conviction in this case. We accordingly overrule the assignments of error challenging the sufficiency of the evidence and the charge of the court as it related to the voluntariness of the defendant’s drug induced intoxication. We find the charge was complete and correct.

Appellant’s conviction for possession of a controlled substance is not challenged in this appeal.

We have carefully considered all the assignments, including that directed to argument of the prosecuting attorney as prejudicial and inflammatory and find no reversible error.

Affirmed.

WALKER, P. J., and DUNCAN, J., concur.


author: PER CURIAM.

text:
    Alton KOENNING, Petitioner, v. MANCO CORPORATION et al., Respondents.
    No. B-5340.
    Supreme Court of Texas.
    Dec. 23, 1975.
    Rehearing Denied Jan. 28, 1976.
    Chase & House, Carl C. Chase, Jr., Corpus Christi, E. B. Grimes, Robstown, for petitioner.
    Kleberg, Molley, Lockett & Weil, J. Lev Hunt, Wood, Burney, Nesbitt & Ryan, Allen Wood, Corpus Christi, for respondents.
   ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing filed by South-Tex Corporation is granted, the action of this court in granting the writ of error and the Per Curiam opinion handed down November 5 are withdrawn, and the application for writ of error is refused, no reversible error.

REAVLEY, J., not sitting.


text:
    CLAYTON BROKERAGE COMPANY OF ST. LOUIS, INC., Petitioner, v. Roy W. MOUER, Securities Commissioner of Texas, Respondent.
    No. B-5238.
    Supreme Court of Texas.
    Dec. 17, 1975.
    Rehearing Denied Feb. 11,1976.
    Jenkens & Gilchrist, John A. Gilliam, Henry Gilchrist and Christie S. Flanagan, Dallas, Thompson & Mitchell, Gerard K. Sandweg, Jr., St. Louis, Mo., for petitioner.
    John L. Hill, Atty. Gen., David W. Pace, Asst. Atty. Gen., Austin, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon suit by the State of Texas, the trial court entered final judgment ordering that Petitioner, et al., be permanently enjoined from selling and offering to sell, within the State of Texas, securities involving “London Commodity Options” except in compliance with the Securities Act of Texas. The Court of Civil Appeals affirmed this judgment, stating: “We affirm the judgment of the trial court enjoining appellant from selling securities involving London options, because the offer and sale of such securities without registration is prohibited by the Texas Securities Act.” 520 S.W.2d 802.

The application for writ of error subsequently filed by Petitioner was refused, no reversible error. Subsequently, Petitioner filed its motion for rehearing and, later, a motion to dismiss the entire cause as moot. The basis for the motion was the enactment by the United States Congress of the Commodity Futures Trading Commission Act of 1974, P.L. 93-463, 88 Stat. 1389,1 U.S.Code Cong, and Admin.News p. 1589 (1974), which became effective on April 21, 1975. The Act instituted federal regulation for commodity futures trading. In The State of Texas v. Monex International, Ltd., 527 S.W.2d 804 (Tex.Civ.App.—1975), the Court ruled, in effect, that the Federal Act preempts regulation of margin account sales for future delivery. Application for writ of error was this day refused. This ruling is equally applicable to the subject matter here and consistent therewith, and pursuant to Rule 483, Tex.R.Civ.P., we grant the motion of Petitioner to dismiss this cause as moot and it is so ordered.


author: GREEN, Commissioner. ONION, Presiding Judge KEITH, Commissioner.

text:
    Richard Henry APPLEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 50287.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    On Rehearing Jan. 21, 1976.
    Rehearing Denied Feb. 11, 1976.

      William Drew Perkins, Lufkin, for appellant.
    Jim D. Yollers, 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 murder without malice. Punishment was assessed at five years. The record reflects that appellant was represented at the trial and on appeal by retained counsel.

In three grounds of error appellant contends that the court erred in overruling his motion for a new trial, in which he alleged that the State knowingly suppressed and failed to disclose evidence of material value to the defense and that jury misconduct occurred when the jury received additional testimony during its deliberations. Each of these contentions is based upon evidence allegedly developed at the hearing on the motion for new trial. It becomes necessary for us to determine whether the transcription of the notes of the court reporter covering the testimony given on the hearing of the motion for new trial is properly before us for our consideration.

Although the record shows that the motion for new trial was overruled by the trial court on October 12, 1973, and that appellant was sentenced and notice of appeal was given on that same date, no transcription of the testimony given at said hearing was filed in this Court until October 21, 1975. It shows that it was for the first time filed with the clerk of the trial court on October 17, 1975.

The appellate record, approved by the court on August 22, 1974, which included the transcript prepared by the district clerk and the transcription of the court reporter’s notes of the trial in chief (but not of the hearing on the motion for new trial) was filed in this Court on May 12, 1975. This record contains no designation by appellant specifying matters he wished to be included in the record. See Article 40.09, Section 2, V.A.C.C.P. The record reflects that after several extensions of time were granted by the trial court in which to file the transcription of the court reporter’s notes of the evidence, the time limit set by the last extension being April 5,1974, the transcription of the evidence given at the trial in chief was filed in the trial court April 5, 1974. Counsel for both parties were duly notified by the clerk of the completion of the record on August 7, 1974, and an approval by both counsel appears in the transcript. On August 22, 1974, no objections having been filed, the trial court approved the record and ordered it filed as approved. See Article 40.09, Section 7, V.A.C.C.P. No statement of facts of any testimony purportedly given at a hearing on appellant’s motion for new trial was at that time on file in the district clerk’s office, same not being filed until October 17, 1975, and the record does not reflect that any such document was ever presented to the trial court or included in the court’s approval.

Article 40.09, Section 5, V.A.C.C.P., as applicable here, reads:

“A party desiring to have included in the record a transcription of notes of the reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk in duplicate in time for inclusion in the record . . . .”

Section 3 of the same article makes as a part of the appellate record the transcription of the court reporter’s notes of the proceedings occurring “before, during or after the trial,” and states that “same will constitute the statement of facts for the appeal.” This section sets out the time limits for filing such statement of facts in the trial court, subject to the trial court granting extensions of time.

We quote from Dart v. State, Tex.Cr. App., 515 S.W.2d 119, p. 121, as follows:

“It is clear and unambiguous from a reading of Sec. 5 of Art. 40.09, supra, that the burden is upon the party desiring a transcription of the court reporter’s notes to not only obtain such, but to further see that same is filed with the Clerk in time for inclusion in the record.
“In Sartain v. State, 171 Tex.Cr.R. 192, 346 S.W.2d 337, this Court followed Ex parte Denson, 165 Tex.Cr.R. 420, 307 S.W.2d 952, in holding:2
“ ‘It is incumbent upon the appellant to obtain the statement of facts, to have the same properly approved, and to follow it up to see that it is filed as required by law.’ ”
Footnote 2 in Dart reads: “The forerunner of Sec. 5, Art. 40.09, supra, was Sec. 4 of Art. 759a, V.A.C.C.P., in effect at the time of the Sartain and Denson cases, which provided in pertinent part, ‘The defendant shall file said statement of facts in duplicate, with the clerk of the trial court, within ninety days after the date of giving notice of appeal .

See also Goodings v. State, Tex.Cr.App., 500 S.W.2d 173; Conerly v. State, Tex.Cr.App., 412 S.W.2d 909; Ex parte Hill, 159 Tex.Cr.R. 238, 262 S.W.2d 507. Cf. with Heck v. State, Tex.Cr.App., 507 S.W.2d 737.

There is no showing that appellant took any action to discharge his responsibility of furnishing the transcription of the evidence at the hearing on the motion for new trial to the district clerk in time for inclusion in the record. Since such transcription was not timely filed, and was not included as a part of the record at the time of the approval by the trial court, it is not properly before us for our consideration.

In the absence of a timely filed statement of the evidence at the hearing, appellant’s first three grounds of error are not before us for review.

In his fourth ground, appellant contends that the evidence establishes self-defense as a matter of law and that the court erred in overruling his motion for instructed verdict.

In Powers v. State, Tex.Cr.App., 497 S.W.2d 594, in overruling a similar contention of the defendant, the Court said:

“In the recent cases of Whitfield v. State, Tex.Cr.App., 492 S.W.2d 502 and Escamilla v. State, Tex.Cr.App., 464 S.W.2d 840, contentions were made that the evidence showed self defense as a matter of law, and this Court recognized the following statement from Parkman v. State, 149 Tex.Cr.R. 101, 191 S.W.2d 743, to be controlling:
“ ‘In making this contention, he recognizes the controlling rule to be that in order for a reviewing court to hold, as a matter of law, that a defendant in a homicide prosecution killed in self-defense, the evidence must be uncontradict-ed and no issue thereon presented for the jury’s determination. Parker v. State, 138 Tex.Cr.R. 478, 136 S.W.2d 229; Patton v. State, 129 Tex.Cr.R. 269, 86 S.W.2d 774.’ ”

In the instant case, the State offered no eyewitness to the offense, but made out a prima facie case of murder by proving the death of deceased by being shot with a gun and the admission of appellant that he had shot him. State’s witness Henley testified that on the afternoon of the killing he heard appellant, while in a pool hall, in talking of deceased who had just left the pool hall, say that “he thought he would go to town and kill the son-of-a-bitch.” Appellant thereupon left the pool hall, went to his wife’s apartment knowing that deceased’s car was parked in front of it, got a pistol from his car, placed it in his belt under his shirt, and went into the apartment where deceased was visiting his wife. Deceased was shot by appellant shortly after appellant’s arrival. The only eyewitnesses to the shooting, excluding deceased, were appellant and his wife. She did not testify. The only evidence raising the issue of self-defense was given by appellant in testifying in his own behalf. Defense witnesses gave testimony of deceased being a man of violent and dangerous character. A fact issue of self-defense was raised and submitted to the jury, which was decided against appellant.

The fourth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.

ONION, Presiding Judge

(concurring).

I concur in the disposition of appellant’s first three grounds of error solely because the supplemental transcript containing the statement of facts on the hearing on the motion for new trial was not approved by the trial judge. See Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975).

ROBERTS, J., joins in this concurrence.

OPINION

On Appellant’s Motion For Rehearing

KEITH, Commissioner.

On November 5, 1975, this Court affirmed the judgment of the trial court after overruling several of appellant’s grounds of error. However, for reasons set out in the opinion, the first three grounds of error complaining of jury misconduct were not considered.

The record now having been supplemented and the record now showing that the stenographic transcription of the evidence heard upon the motion for new trial was inadvertently left out of our record, we are able to dispose of the first three grounds of error.

On the hearing of the motion for new trial, appellant established that the State’s witness Henley was not under subpoena but appeared upon call of State’s counsel. Henley testified that while he was in the pool hall he heard appellant tell Jerry Tullos that “he thought he would go to town and kill the son-of-a-bitch.” Appellant’s trial counsel stated that he was surprised at Henley’s appearance since he had checked the court records for the names of all State witnesses, having done this daily prior to trial.

Appellant denied having had any such conversation with Tullos, and denied even knowing Henley by sight. However, it did develop on the hearing that Tullos lived in the nearby small community of Apple Springs in Trinity County. No effort was made to contact Tullos, no request was made for time within which to locate Tul-los, and appellant’s counsel rested the case without making any complaint of the testimony of Henley or appellant’s inability to refute the statement attributed to him.

At the hearing on the motion for new trial, Tullos denied that appellant made any such statement to him, and, more importantly, testified that he had so told the district attorney that no such statement had been made by appellant. The district attorney testified that he had indeed conferred with Tullos before trial but that Tullos denied any recollection of the statement — not that it was not made as Tullos testified upon the hearing.

Appellant now contends that State’s counsel breached the duty owed to appellant by not informing him, before the trial, of Tullos’ equivocal position with reference to Henley’s testimony, invoking the doctrine of Means v. State, 429 S.W.2d 490, 493-495 (Tex.Cr.App.1968), and Crutcher v. State, 481 S.W.2d 113, 115 (Tex.Cr.App.1972).

We do not recede from our prior opinions relating to the prosecutor’s constitutional duty to disclose evidence favorable to the accused as exemplified in the cited cases. However, our record does not disclose that: (1)the prosecutor deliberately painted a false picture of facts using perjured testimony; or (2) failed to correct its own testimony when it became apparent that it was false; or (3) actively suppressed evidence which might have exonerated the accused or been of importance to the defense; or (4) negligently failed to disclose evidence which might have exonerated the accused; or (5) any bad faith on the part of the prosecutor.

A direct conflict was shown between the testimony of Tullos and the district attorney as to what Tullos had told the latter, and the trial court was not required to accept as true the Tullos account of the conversation. The decision upon a motion for new trial rests in the sound discretion of the trial court and in the absence of an abuse of discretion its decision will not be disturbed on appeal. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816 (1956); Bryan v. State, Tex.Cr.App., 406 S.W.2d 210, 216 (1966); Hill v. State, Tex.Cr.App., 480 S.W.2d 670, 673 (1972).

We find no abuse of discretion and grounds of error numbers one and two are overruled.

Next, appellant contends that the trial court erred in overruling his motion for new trial because the jury received new evidence during its deliberations upon appellant’s guilt. One juror testified that the foreman told several jurors that the reputation of the deceased, which the record made by appellant showed to be bad, was about the same as that of appellant. The foreman denied having made such statement before the verdict was reached unanimously but admitted that he may have made such a statement after the jury had found appellant guilty. Another juror denied having heard any such remark.

In Powell v. State, 502 S.W.2d 705, 711 (Tex.Cr.App.1973), the rule was restated in this manner:

“The trial court is the place to decide issues of fact as to what occurred in the jury room. That decision will not be disturbed by this Court in the absence of an abuse of discretion.”

We find no abuse of discretion in this instance. An issue of fact having been drawn as to what occurred in the jury room, the proper tribunal to decide that issue is the trial judge who hears the witnesses. Hartman v. State, 507 S.W.2d 557, 560 (Tex.Cr.App.1974), and authorities therein cited. Ground three is overruled.

The motion for rehearing is overruled and the judgment of the trial court is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Tommy DEAS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 50794.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Rehearing Denied Feb. 11, 1976.

      Selden B. Hale, Amarillo, for appellants.
    Andrew J. Shuval, Dist. Atty., Hereford, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is second degree felony theft (cattle); the punishment as to each appellant, five years.

Sufficiency of the evidence to support the conviction is challenged.

It was established by non-accomplice testimony that:

1. The three appellants were brothers.

2. One hundred and two branded cattle were stolen from the Texsun Feed Yards in Hereford on August 2, 1974.

3. One hundred and two of the stolen cattle were recovered from Nichols Truck Pen in Houston on August 6.

The non-accomplice testimony is summarized as follows.

Phillip Farr, Assistant Manager of Tex-sun Feed Yards in Hereford, testified that on Friday, August 2, he saw appellants Tommy Deas and Jerry Deas at a steak house in Hereford with Cliff Skiles. He also testified that the feed lot had no night watchman and, as far as he remembered, he locked the outer gates at the close of business on August 2. He further stated that he did not miss any cattle until his foreman brought the matter to his attention on Sunday afternoon and that all concerned then began to try to account for how many cattle had been taken and were ultimately able to ascertain that the number was one hundred and two.

Cliff Skiles, who along with Ken Gill owned a 40-foot cattle trailer and truck-tractor, said that he met Tommy and Jerry Deas at the steak house in Hereford on August 2. They discussed using his trailer later in the day.

Ken Gill stated that Jerry Deas got the keys to his truck-tractor on August 2, and that Tommy Deas returned the keys the next day.

Betty Gresham, bookkeeper at a truck stop in Hereford, said that Tommy Deas signed a ticket for 50 gallons of gasoline on August 2, and rode off in Gill’s truck-tractor.

Michael Bradford, owner of Bradford Trucking Company in Hereford, testified that on August 3 he received a call from one of the appellants for two “pots” and drivers to pick up some cattle at Reece Lawson’s cattle pens six miles north of Hereford. In compliance with this call, he went to these pens with two “pots” and drivers, where he met Tommy Deas and Larry Noland, a feed lot operator in Sum-merfield. Tommy Deas gave instructions to haul the cattle to Houston.

Bob Sims, manager of Texsun Feed Yards, testified that on Sunday, August 4, he received a call from his head cowboy reporting that some cattle were missing. The following morning, after marshalling his help, he ascertained that the missing number amounted to one hundred and two head. He immediately sent notices of the numbers and brands of the missing cattle. On Tuesday, August 6, he received a call and went to Nichols Truck Pen in Houston, where he identified the one hundred and two missing cattle by brands.

Kenneth Hudson, head cowboy at Texsun Feed Yards, testified that on Saturday, August 3, he found the gates to the individual pens open and the cattle mingling out in the yard. He participated in the head count on Monday and assisted in identifying the missing cattle found at Nichols in Houston.

Robert Holmes, truck driver for Bradford Trucking Company, said that he helped load the cattle at Reece Lawson’s pens on August 3 and drove to Houston, where he met Tommy Deas and Gary Godwin and unloaded the cattle upon Tommy Deas’ orders.

Johnny Beltran, an employee of Texsun Feed Yards, testified that on August 2 his superior Henry Rayburn, had the keys to the individual pens at the feed lot. That evening he went to Rayburn’s house, where he saw Tommy Deas and another man drinking beer with Rayburn.

Jack Ceasar, a cattle buyer in the Wharton area, testified that he saw Tommy Deas and Ronny Mack Deas at his club on Sunday, August 4, and they asked him to sell some cattle in Houston for them. On Tuesday, August 6, he called Ronny Mack Deas and told him that he had set up a deal to sell the cattle.

Milton Freedman, wholesale meat dealer and packer, testified that on August 4 he received a call from Jack Ceasar about some cattle at Nichols Truck Pen. He did nothing further in the transaction.

The accomplice witnesses gave the following testimony.

Larry Noland testified that he met Tommy Deas and Jerry Deas at a club in Amarillo a week prior to August 2, and they discussed stealing some cattle from Texsun Feed Yards. During the conversation, the fact that no night watchman was employed at the feed lot was discussed. He met Tommy Deas, Jerry Deas and Cliff Skiles at a steak house in Hereford on August 2. Tommy and Jerry told him that they had a truck and were going to Texsun Feed Yards that night to steal cattle. They further told him that their brother, Ronny Mack Deas, would handle the sale of the cattle once they got to Houston. At about 10:00 p. m. that night Tommy, Jerry, Gary God-win and he met at the Texsun Feed Yards and started loading cattle. Three truck loads and one pickup trailer load of cattle were carried that night before 3:00 a. m. to Reece Lawson’s pens.

Noland further testified that the next morning he and Tommy Deas returned the truck to Skiles and went to Reece Lawson’s pens, where they loaded the cattle into the Bradford trucks. Noland did not accompany the cattle to Houston. On Monday, August 4, he learned the cattle theft had been discovered. He was unable to contact Tommy Deas in Houston, but spoke to Jerry Deas in Amarillo. Later that day he was approached by law enforcement officers and ultimately cooperated with them.

Gary Godwin, who was working for Larry Noland and living in his house, testified that on August 2 Tommy Deas, Jerry Deas and Noland asked him if he wanted to help them steal some cattle from Texsun Feeds Yards, and he agreed. Later that night they went to the feed lot and hauled the cattle to Reece Lawson’s pens. The next day he and Tommy returned the truck keys to Ken Gill and went to Reece Lawson’s pens to help load the cattle into the Bradford trucks. He then drove Tommy Deas to Houston and enroute Tommy told him that Ronny Mack Deas would take care of the sale of the cattle in Houston. Upon their arrival, they unloaded the cattle at Nichols Truck Pen. Later he accompanied Tommy Deas and Ronny Mack Deas to see Jack Ceasar, but did not hear the discussion.

Tommy Deas was the only appellant to testify in his own behalf. He admitted borrowing the truck and trailer from Skiles and Gill, but said that at 2:00 a. m. on August 3 Larry Noland called him and asked his help in disposing of two loads of cattle. He agreed to do so for a commission, and thereafter arranged for the trucks from Bradford and accompanied Gary God-win to Houston to make the sale. He denied any conversation with Ceasar. He stated that later he and Ronny Mack learned that the cattle had been stolen. They flew to Amarillo, met Jerry and all three of them drove to Hereford, where they surrendered to the sheriff.

The test of sufficiency of corroboration of the testimony of an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the accused with the commission of the offense. Colunga v. State, Tex.Cr.App., 481 S.W.2d 866; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273. Clearly there is sufficient evidence to corroborate the accomplice witnesses’ testimony as to the appellant Tommy Deas. Dagley v. State, 171 Tex.Cr.R. 465, 351 S.W.2d 229.

There is evidence that Jerry Deas negotiated for the use of the cattle truck in Hereford and picked up the truck on August 2. Proof that an accused was at or near the scene of a crime at or near the time of its commission may tend to connect the accused with the commission of the crime so as to furnish sufficient corroboration to support a conviction. Clary v. State, Tex.Cr.App., 491 S.W.2d 900. Jerry Deas secured the truck used in the commission of the crime and was seen in the company of his brother, Tommy, and the accomplice Larry Noland. We hold this to be sufficient corroboration to support his conviction.

As to Ronny Mack Deas, the only evidence tending to connect him with the offense was his conversation with Jack Cea-sar about finding a buyer for some cattle in Houston. There is a complete absence of any corroboration of the fact that he had knowledge that the cattle which he attempted to sell were stolen. This is an essential element for his conviction. Because of the absence of such corroboration, the evidence is insufficient to support the conviction of Ronny Mack Deas. O’Donald v. State, Tex.Cr.App., 492 S.W.2d 584; Windham v. State, Tex.Cr.App., 479 S.W.2d 319.

Accordingly, the convictions for Tommy Deas and Jerry Deas are affirmed. The judgment of conviction against Ronny Mack Deas is reversed and the cause remanded.

      .The Texsun Feed Yards handled an average of 6,000 cattle at a time. The cattle belonged to different owners. By checking brands, the feed lot employees were able to establish that one hundred and two cattle were missing.

      . “Pots” were shown to be a double decker cattle truck-tractor and trailer.


author: ODOM, Judge.

text:
    William Lester SUFF, Appellant, v. The STATE of Texas, Appellee. Teryl Rose SUFF, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51152 and 51153.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Rehearing Denied Feb. 11, 1976.
    John L. Gamboa and Harry L. Williams, Fort Worth, for William Suff.
    Kenneth Pounds (Court appointed), Hurst, for Teryl Rose Suff.
    Tim Curry, Dist. Atty. and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellants, husband and wife, were tried together upon their pleas of not guilty and convicted of the murder of their infant daughter. A jury assessed punishment at seventy years for each.

Appellant William Suff’s appointed attorneys have filed a brief in which they conclude that his appeal is frivolous. He has been so informed and has exercised his right to file a pro se brief. This procedure is in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, Tex.Cr.App., 436 S.W.2d 137. Appellant Teryl Suff urges one ground of error.

We have completely reviewed the record. In the case of William Suff the grounds of error in his pro se brief are patently without merit. We have discovered no unassigned error that should be considered in the interest of justice, Art. 40.-09(13), V.A.C.C.P. The judgment as to him is affirmed.

The sole ground of error urged by appellant Teryl Suff challenges the sufficiency of the evidence to support the conviction.

The record reflects an appalling history of physical abuse of both the deceased, who was two months old at the time of her death, and her baby brother, who was then twenty-one months of age. The evidence adduced at trial pointed to the father as the actual perpetrator of the violence. There was testimony that he had abused both children frequently. There was no evidence whatsoever that the mother, Teryl Suff, had herself ever directly injured either child.

On the day of the murder, Teryl Suff awoke between 6:30 a. m. and 7:00 a. m. She arose, changed her daughter’s diaper, fed her, laid her back in her crib, and prepared to go to work. Shortly after 8:00 a. m., she woke her husband William and left for work with Irene Taylor, her next-door neighbor who customarily gave her a ride to work.

William Suff was home alone with the two children that entire morning, according to his testimony, except for two brief departures to check the mailbox and to make a telephone call at a pay telephone two blocks away. The children were left unattended on each occasion. After returning from making the phone call, he testified, he discovered his daughter lying face down on the floor between her crib and the wall. She was dead. He then ran back to the pay phone and told his wife to come home immediately because “something had happened to our baby.” The time was shortly before noon.

Teryl Suff ran home immediately and went into hysterics. She broke into Irene Taylor’s next-door apartment and called an ambulance. Taylor, who had returned home and gone back to sleep, was awakened by Teryl Suff’s screams to get an ambulance because her baby was dead.

We regard the testimony of Dr. Feliks Gwozdz, who performed the autopsy, as critical. Dr. Gwozdz testified that although the deceased had numerous pre-existing injuries, including thirteen broken ribs and a broken arm, the cause of death was a sharp blow to the abdomen with a blunt object. The blow caused the liver to rupture and resulted in massive bleeding into the abdominal cavity. He stated that because he could not determine the exact size of the rupture as originally inflicted and, therefore, the rate of internal bleeding, he could not state with certainty the exact time that the fatal blow was struck. He did say, however, that it could not have been less than thirty minutes or more than eight hours before he performed the autopsy, which was between 2:00 p. m. and 3:00 p. m. the day of the murder. The blow that caused death, therefore, was inflicted sometime after 6:00 a. m. that morning.

Obviously the State’s case was founded upon circumstantial evidence. The trial court properly instructed the jury upon the law of circumstantial evidence as well as upon the law of principals. From the foregoing recitation of the facts, we believe it apparent that the verdict as to William Suff was sufficiently supported by the evidence.

The State in its brief has listed eleven items of circumstantial evidence that it contends are sufficient to support Teryl Suff’s conviction:

“(1) An apartment neighbor, Irene Taylor, and co-worker of Appellant testified that she (Mrs. Taylor) bought food for both the Suff children when they first moved in (September 1973) even though the Suffs had apparently enough money to keep up two aquariums.
“(2) Appellant, who normally appeared bright and talkative to Mrs. Taylor, appeared pale, and ill the morning of September 25, 1973, the date of the offense, as Mrs. Taylor took her to work. Appellant did not invite Mrs. Taylor into the apartment as she had usually done. ■
“(3) Appellant and her husband (co-defendant) both testified and both denied knowledge of any prior serious physical injuries to the deceased child.
“(4) One week prior to the offense, Appellant’s husband brought both Suff children to the cafe where Appellant and Mrs. Taylor worked. Mrs. Taylor testified the deceased child had a face black with bruises and a hurt arm.
“(5) Mrs. Taylor asked Appellant on this occasion (4 above) if she weren’t scared to leave her children with her husband with such injuries which were ‘never taken care of’ but was told that her husband would never do it intentionally, but only in a fit of temper.
“(6) The medical evidence showed a broken arm and thirteen broken ribs in the process of healing, definitely establishing pre-existing injuries.
“(7) Appellant testified her daughter (deceased) vomited the night before.
“(8) Appellant testified her 21 month-old son has suffered injuries serious enough to put him in intensive care at age 3 months resulting from a cradle that rocked; she and her husband went swimming while the child was in intensive care.
“(9) Appellant testified she saw the deceased at 6:30-7:00 a. m. on September 25, 1973, when she fed her and changed her diaper.
“(10) The medical examiner’s testimony that deceased could have received the fatal blow to the abdomen eight hours before his examination (2:00 p. m.) demonstrated that such blow could have been struck at 6:00 a. m, a time when Appellant was at home.
“(11) The patent untruthfulness of Appellant’s testimony denying any serious previous injuries demonstrated an attempt to deceive the fact finder — a circumstance from which guilt could be inferred.”

We do not doubt that this evidence as well as the entire record establish that Te-ryl Suff was, to understate the matter, a poor mother. But we are at a loss to understand how most of these items could be probative of her criminal liability for the particular offense charged. Evidence of the deceased’s pre-existing injuries could not be evidence of Teryl Suff’s guilt of the instant offense in the face of further evidence that her husband was responsible for the injuries and that none, in any event, caused death. See Curry v. State, Tex.Cr.App., 468 S.W.2d 455, vacated in part, 408 U.S. 939, 92 S.Ct. 2872, 33 L.Ed.2d 761 (1972); Ray v. State, 160 Tex.Cr.R. 12, 266 S.W.2d 124. Nor did she deny the existence of such injuries, contrary to the State’s assertion. Other items were only evidence of the guilt of William Suff.

Only the evidence provided by Irene Taylor relating to appellant’s demeanor and conduct the morning of the murder is circumstantial evidence that she committed the offense. The relevant portion of the record is as follows:

“Q. [by the prosecutor] Now directing your attention to the morning of September the twenty-fifth, Nineteen Seventy-three, I’ll ask the jury — I’ll ask you to tell the jury what you did after you got up and after you saw the kids off to school?
“A. [by Mrs. Taylor] I always carried Terry [Teryl] to work. She went to work three days a week at nine o’clock. I would carry her to work, because she didn’t have transportation, so that morning, I went to the door and I knocked, and when she came to the door — Every morning, she had opened the door and said, ‘come in,’ but that morning, she just barely opened the door, and I said, ‘Terry, I’m going to have to carry you to work early because I have to be at Hurst to the doctor at nine o’clock,’ and she said, ‘All right, I’ll be ready in a minute.’ I said ‘Terry, are you able to go to work? You’re awful pale, you’re sick,’ and she said, ‘No, I’m all right.’ I said, ‘Well, hurry up. I have to be at Hurst,’ so on the way to work, she is always chattering, laughing and talking, but that morning, she didn’t say anything.’ ”

Although this evidence may have tended to show that appellant was ill or upset, it constitutes no evidence at all that she had • struck a death blow to her baby, nor is there even a scintilla of evidence to that effect elsewhere in the record. See Resendez v. State, Tex.Cr.App., 495 S.W.2d 934; Calloway v. State, Tex.Cr.App., 235 S.W.2d 900; cf. Wood v. State, Tex.Cr.App., 515 S.W.2d 300; Creel v. State, Tex.Cr.App., 493 S.W.2d 814; Hall v. State, Tex.Cr.App., 488 S.W.2d 94; Curry v. State, supra; McClure v. State, Tex.Cr.App., 430 S.W.2d 813; Glass v. State, Tex.Cr.App., 402 S.W.2d 173; King v. State, Tex.Cr.App., 396 S.W.2d 409; Smith v. State, 160 Tex.Cr.R. 227, 268 S.W.2d 144; Ray v. State, supra.

There remains the question whether this evidence could reasonably have been interpreted by the jury as showing participation in the event sufficient to render her guilty as a principal to the offense.

In Robinson v. State, Tex.Cr.App., 493 S.W.2d 780, 782, this Court stated:

“To be guilty of a felony offense as a principal, a defendant must be actually present at the time of its commission or if not present at the time of the commission of the offense he must at the time the act is being done, be himself actively engaged in the furtherance of the common purpose and design at some other place.”

The record is silent as to any common purpose or design. As to those situations in which one may be guilty as a principal when actually present, the very least that is required is, in addition to physical presence, encouragement by words or agreement to the commission of the offense. Such agreement must be prior to or contemporaneous with the criminal event. Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046, 1052-53; Arts. 65-69, Y.A.P.C. (cf. Y.T.C.A. Penal Code Secs. 7.01 and 7.02).

The only evidence in the record that appellant encouraged or agreed with the act of murder is that given by Irene Taylor relating to her conduct and demeanor the morning of the offense. Such evidence, however, is wholly consistent with many other sequences of events that would not constitute her a principal.

Thus, every reasonable hypothesis except the guilt of appellant has not been excluded by the evidence. Davis v. State, Tex.Cr.App., 516 S.W.2d 157; cf. Stokes v. State, Tex.Cr.App., 506 S.W.2d 860; Lombardo v. State, Tex.Cr.App., 503 S.W.2d 780. To say that she performed acts sufficient to render her guilty of the offense of murder, either as a primary actor or as a principal, would be to engage in mere speculation. To uphold the jury’s verdict under these facts would endorse such speculation. We cannot bring ourselves, in spite of the gravity of the offense and the revulsion with which it fills us, to uphold a verdict supported only by innuendo bolstered by moral outrage. The judgment of conviction as to Teryl Suff must be reversed because the evidence is insufficient to support the same.

In No. 51,152 (William Lester Suff) the judgment is affirmed.

In No. 51,153 (Teryl Rose Suff) the judgment is reversed and the cause remanded.

      . In the first four grounds of error he complains of a minor inconsistency in the testimony of two expert medical witnesses; of “derogatory and injurious” testimony by a State’s witness; that another State’s witness “bore a personal grudge” against him; and that a police officer should not have been allowed to testify that a mark on the deceased’s body was a burn. None of these complaints present reversible error. The fifth ground of error claims jury misconduct, but nothing in the record supports that claim. Finally, he complains that a police officer should not have been allowed to testify at the guilt-innocence stage of trial that appellant’s reputation for truth and veracity was bad. We note that appellant had testified and denied his guilt, rendering the officer’s testimony admissible for impeachment purposes. Moreover, he was properly qualified during voir dire examination outside the hearing of the jury.

      . In addition, some of his testimony was incredible. He testified, for example, that with reference to the deceased’s pre-existing injuries he had never noticed anything wrong with her physical condition. Suff was a trained paramedic ambulance driver whose specialty was pediatrics. Upon cross-examination, he explained the apparent contradiction as follows: “Sir, if you pick up a child right, there could be a lot of things wrong with it and it will never hurt that child.”


text:
    Johnny Nickolos FAZZINO, aka John Nick Fazzino aka Johnny Nick Fazzino, Appellant, v. The STATE of Texas, Appellee.
    No. 50796.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1976.
    Rehearing Denied Feb. 11, 1976.

      Barron & Barron, Bryan, Texas, for appellant.
    W. T. McDonald, Jr., Dist. Atty., J. Bradley Smith, Asst. Dist. Atty., Bryan, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of the murder of his wife. Punishment was assessed at twenty years.

In the first two grounds of error, appellant complains of evidence of bad character that was admitted at trial. This included testimony by several witnesses that while married to the deceased he had slept with numerous women, urged one woman to engage in prostitution, asked a woman to get a date for him, smoked marihuana, and other infractions. Objection was made in only one instance. Nothing is presented for review with respect to that testimony not objected to at trial. Johnson v. State, Tex.Cr.App., 504 S.W.2d 493; Jordan v. State, Tex.Cr.App., 500 S.W.2d 638. In any event, almost all the testimony complained of was admissible to rebut appellant’s testimony that he was a law-abiding citizen and a loyal and loving husband.

Regarding the one instance in which objection was made, the record reflects that appellant’s attorney on cross-examination of a State’s witness inquired, “Did you ever in your life hear of John Nick Fazzino violating the law in any way?” She replied, “I have heard gossip, you know, just regular gossip. I never knew it for a fact.”

Later, in redirect examination, the prosecutor asked, “What gossip have you heard about him violating the law?” After the objection was overruled, the witness responded, “I have just heard gossip about him pushing dope and that he was running a whore house. That’s just gossip; I don’t know that as a fact.”

Appellant contends that this testimony was inadmissible hearsay. In view of the myriad of other offenses properly admitted, the admission of the above hearsay, if error, was harmless beyond a reasonable doubt. The first two grounds of error are overruled.

The third ground of error alleges the trial court erred in admitting into evidence two photographs of the corpse of the deceased. Because a verbal description of the body was admissible, it was not error to admit the photographs. Martin v. State, Tex.Cr.App., 475 S.W.2d 265.

In the fourth ground of error, appellant contends the trial court erred in excluding the testimony of a witness who would have stated that the deceased some time before her death told her that she was having an affair with another man. The witness had no direct knowledge of the alleged affair. Appellant contends that the admission of the alleged statements was authorized by V.T.C.A. Penal Code Sec. 19.06.

Hearsay statements of the deceased are not admissible in a prosecution for ux-oricide. Jones v. State, Tex.Cr.App., 515 S.W.2d 126, and authorities there cited.

Section 19.06, like its predecessor, Art. 1257a, V.A.P.C., does not extend the rules of evidence to admit hearsay testimony that would otherwise be inadmissible. Jones v. State, supra, and authorities there cited. •

In the fifth ground of error, appellant contends that V.T.C.A. Penal Code Sec. 19.-06 is unconstitutional. He argues that the various exceptions to the hearsay rule sometimes allow statements of the accused to be admitted into evidence, whereas hearsay statements of the deceased are never allowed, and that these rules operate to the advantage of the State.

With that conclusion we do not agree. The purpose of the rules is to protect the integrity of the fact finding process and therefore works to the advantage of all. In Jones v. State, supra, the judgment was reversed because the State introduced hearsay statements allegedly made by the deceased that were damaging to the defendant. V.T.C.A. Penal Code Sec. 19.06 is not unconstitutional and the fifth ground of error is overruled.

In the final two grounds of error, appellant contends that the trial court erred in failing to charge the jury on the law of accident and failing to give “an unconditional charge on intent.” As we have often said, a charge on accident is required only if there is some evidence that the act resulting in death was unintentional. The focus is upon the accused’s act, not the result of his act. Brown v. State, Tex.Cr.App., 523 S.W.2d 238; McKenzie v. State, Tex.Cr.App., 521 S.W.2d 637; Stiles v. State, Tex.Cr.App., 520 S.W.2d 894. Here, appellant testified that he intentionally hit the deceased and maintained that the blow accidentally resulted in death. Therefore, he was not entitled to a charge on accident.

The trial court did charge the jury upon the law of murder, voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide. The requisite mental state was properly defined with respect to each offense. Appellant was indicted for murder under V.T.C.A. Penal Code Sec. 19.02(a)(2), not (a)(1), and an intent to kill is not an element of murder under such theory. The trial court did not err in refusing to give an “unconditional” charge on intent to kill. The sixth and seventh grounds of error are overruled.

The judgment is affirmed.


author: MORRISON, Judge. ROBERTS, Judge

text:
    Tommie C. LIVINGSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 50798.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1976.
    Charles W. Fairweather, Amarillo, for appellant.

      Andy Shuval, Dist. Atty., Hereford, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is aggravated perjury under V.T.C.A., Penal Code, Sec. 37.03; the punishment, three years.

The indictment charged appellant with having made a false material statement in Cause No. 2401 in the District Court of Deaf Smith County, “such false statement being made under oath in Court and the said defendant did then and there state that he was never arrested in Dumas for driving while intoxicated or in Houston for driving while intoxicated.”

The record in Cause No. 2401, introduced by the State in the case at bar, reflects that appellant entered a plea of guilty before the court to driving while intoxicated, second offense. He took the stand and testified in support of his motion for probation and denied that he was the same Tommie Livingston shown to have been arrested in Dumas and Houston for driving while intoxicated as shown in a “rap sheet”. Appellant admitted that he was the same person who was convicted of driving while intoxicated in Castro County in 1972, and that he drove an automobile upon a public highway in Deaf Smith County while intoxicated on February 7,1974, as alleged in the indictment in Cause No. 2401. The court found appellant guilty upon his plea of guilty and assessed punishment at two years probated and a fine of $360.

The State also offered records from law enforcement agencies in Houston and Dumas and the testimony of a fingerprint expert to show that appellant was one and the same person who was arrested for the offense of driving while intoxicated in those two cities.

At the outset, appellant complains of the court’s failure to grant his motion for mistrial when the prosecutor’s argument before the jury at the guilt stage of the trial “was of such a prejudicial nature as to deprive the appellant of a fair and impartial trial.”

While the argument of counsel was not originally transcribed by the court reporter, an informal bill of exception made in the presence of the jury contains the prosecutor’s closing argument as follows:

“[PROSECUTOR]: He was charged with driving while intoxicated in 1966 in Houston; in 1972 in Dumas and convicted, in 1972 in Castro County and convicted, and in 1974 in this County and convicted. That’s the thing.
Now, you know he has been convicted of car theft in 1949, you don’t know what else he has been convicted of or charged with in between and I am not allowed to introduce that into evidence. (Emphasis supplied)
[DEFENSE COUNSEL]: Your Honor, at this time the defense moves for a mistrial on the grounds that the District Attorney has alluded to and suggested to incriminating facts or allegations that are not in the record supported by the evidence.
[PROSECUTOR]: This is a proper answer to the untaken argument of the defense attorney when he did not request a court reporter and he develed [sic] at length as to what convictions were admitted into evidence and that those are the only ones that we could consider and lead the Jury to believe that there were no others and I don’t know whether there are others are [sic] not, but that is good answer to his comment, that that is the only ones we can consider and that there may or may not be others. (Emphasis supplied)
[DEFENSE COUNSEL]: Your Honor, I will renew my request for a mistrial.
THE COURT: I will overrule your motion.
[DEFENSE COUNSEL]: Note my exception.”

Only that portion of the argument relating to conviction for car theft in 1949 is supported by the evidence. However, the prosecutor’s statement did not inform the jury that appellant had committed other offenses. When his earlier statement is considered in context with his later statement, we cannot conclude that the remark was a plea for convicting appellant for being a criminal generally. When the argument is read as a whole, we conclude the statement was not so prejudicial as to require reversal. See Morgan v. State, Tex.Cr.App., 502 S.W.2d 695; Lamberson v. State, Tex.Cr.App., 509 S.W.2d 328; Jones v. State, Tex.Cr.App., 520 S.W.2d 755.

Appellant’s ground of error two complains of the following argument of the prosecutor which immediately preceded the argument quoted above:

“[PROSECUTOR]: May it please the Court, Ladies and Gentlemen of the Jury, you may think that I am being very silly and that this is not an important case, but this is a vitally important case because if you let this Defendant go, if you believe he is guilty, he may very well go out and kill somebody.
[DEFENSE COUNSEL]: Your Honor, he didn’t use the word qualify, he said if you turn him loose, no illusion whether he was guilty or innocent, he will kill somebody.
[PROSECUTOR]: If you turn the Defendant loose he is going to go out and kill somebody.
[DEFENSE COUNSEL]: All right, Your Honor, at this time I renew my objection for a mistrial on the grounds that the statement is not supported by the record, it’s an attempt to prejudice the Jury and totally and—inflammatory.
THE COURT: I will overrule your motion, Mr. Fairweather.
[DEFENSE COUNSEL]: All right. Then, I also ask the Court to instruct the Jury to disregard the statement by the District Attorney as unsupported by the evidence.
THE COURT: Well, I will ask the Jury to disregard the statement made by the District Attorney.”

It is apparent that the prosecutor was deducing from the prior DWI charges that appellant constituted a danger to the public, and if permitted to remain at large “may very well go out and kill somebody.” Although this argument was improper, we do not find the argument so prejudicial and harmful as to require a reversal. The instruction to the jury to disregard the statement cured the error. Elam v. State, Tex.Cr.App., 518 S.W.2d 367; Smith v. State, Tex.Cr.App., 513 S.W.2d 823; Spaulding v. State, Tex.Cr.App., 505 S.W.2d 919.

In his third ground of error appellant contends that the evidence was insufficient to prove that the false statement alleged to have been made by him was material.

The late Honorable Archie S. McDonald presided over the trial in the instant case as well as the trial in Cause No. 2401 and assessed punishment in that cause. He testified that if appellant had admitted having prior arrests for driving while intoxicated it could have affected the punishment.

A statement is material if it could have affected the course or outcome of the official proceeding. Childress v. State, Tex.Cr.App., 398 S.W.2d 754; V.T.C.A., Penal Code, Bee. 37.04. Under the factual situation in this case the statement made by appellant was material. Bee. 37.04(c), supra; Cowart v. State, Tex.Cr.App., 508 S.W.2d 613.

The record shows that appellant was indicted for aggravated perjury, a felony. The judgment and sentence recite that the offense was perjury, a misdemeanor. The court’s charge instructed the jury only on aggravated perjury, and the jury in their verdict found appellant guilty as charged in the indictment. The court assessed punishment for a felony, in this case, aggravated perjury.

The judgment is reformed to reflect that appellant was convicted of aggravated perjury. Since the court assessed punishment, this Court has the necessary data before it for reformation. Lee v. State, Tex.Cr.App., 516 S.W.2d 151. The sentence is also reformed to reflect appellant was convicted of aggravated perjury.

As reformed, the judgment is affirmed.

ROBERTS, Judge

(concurring in part and dissenting in part).

The appellant in this case was convicted of aggravated perjury. V.T.C.A. Penal Code, Sec. 37.03. The offense involves no use or threatened use of force or violence. No evidence of violence or threats was introduced at trial.

Nonetheless, the prosecutor argued outside the record as follows:

“MR. SHUVAL [Prosecutor]: If you turn the Defendant loose he is going to go out and kill somebody.
“MR. FAIRWEATHER [Defense Counsel]: All right, Your Honor, at this time I renew my objection for a mistrial on the grounds that the statement is not supported by the record, it’s an attempt to prejudice the Jury and totally and — inflammatory.
“THE COURT: I will overrule your motion, Mr. Fairweather.
“MR. FAIRWEATHER: All right. Then, I also ask the Court to instruct the Jury to disregard the statement by the District Attorney as unsupported by the evidence.
“THE COURT: Well, I will ask the Jury to disregard the statement made by the District Attorney. You may proceed, Mr. Shuval.
“MR. FAIRWEATHER: Thank you, Your Honor.
“MR. SHUVAL: He was charged with driving while intoxicated in 1966 in Houston; in 1972 in Dumas and convicted, in 1972 in Castro County and convicted, and in 1974 in this County and convicted. That’s the thing.
Now, you know he has been convicted of car theft in 1949, you don’t know what else he has been convicted of or charged with in between and I am not allowed to introduce that into evidence.
“MR. FAIRWEATHER: Your Honor, at this time the defense moves for a mistrial on the grounds that the District Attorney has alluded to and suggested to incriminating facts or allegations that are not in the record supported by the evidence.
“MR. SHUVAL: This is a proper answer to the untaken argument of the defense attorney when he did not request a court reporter and he develed [sic] at length as to what convictions were admitted into evidence and that those are the only ones that we could consider and lead the Jury to believe that there were no others and I don’t know whether there are others are [sic] not, but that is good answer to his comment, that that is the only ones we can consider and that there may or may not be others.
“MR. FAIRWEATHER: Your Honor, I will renew my request for a mistrial.
“THE COURT: I will overrule your motion.
“MR. FAIRWEATHER: Note my exception.”

Of course, as a majority of this Court said in Hodge v. State, 488 S.W.2d 779, 781-782 (Tex.Cr.App.1973):

“The question . . . whether either of the statements of counsel necessitates a reversal of the judgment is to be resolved on the basis of the probable effect on the minds of the jurors and the facts of each case must be looked to.”

I agree with the majority that the argument of the prosecutor concerning inadmissible offenses outside the knowledge of the jury does not present reversible error. I cannot agree with the majority’s reasoning, however, that the argument was not improper. In Morgan v. State, 502 S.W.2d 695 (Tex.Cr.App.1973), this Court held that an almost identical argument was improper, but was nonetheless cured by an instruction to disregard. I would hold, under the facts of this case, that such an instruction would have cured the error, and the failure to request an instruction waived the error. See Steam v. State, 487 S.W.2d 734 (Tex.Cr.App.1972).

However, I would reverse this conviction because of the prosecutor’s argument that the appellant would kill someone if the jury failed to convict him. This argument was totally outside the record, and could in no way be called a logical inference therefrom.

In Falco v. State, 115 Tex.Cr.R. 318, 29 S.W.2d 764 (1930), this Court was confronted with a similar argument. The defendant in that case was charged with possessing intoxicating liquor for purposes of sale. The prosecutor argued to the jurors that they should “stop bootleggers running up and down the road killing people.” Id., at 319, 29 S.W.2d, at 765. As in the case before us, there was no testimony in the record to support the argument. The Court held, under the facts of that case, see Hodge v. State, supra, that reversible error was reflected.

I conclude under the facts of this case that the instruction to the jury to disregard the argument was insufficient to cure the error. Compare Simpson v. State, 493 S.W.2d 793 (Tex.Cr.App.1973). My conclusion is based not only on the grossly prejudicial and inflammatory nature of the argument, which directly accused the appellant of having a predisposition to commit violent acts. It is also based on the fact that this argument was immediately followed by the prosecutor’s thinly-veiled assertion that he knew of other criminal acts committed by the appellant which could not be admitted before the jury. This was calculated to leave in the minds of the jurors the unmistakable impression that the prosecutor had personal knowledge of the appellant’s violent nature which he could not pass on to the jury. '

This argument was rendered even more grievous by the fact that it came from an attorney who had been placed under oath before the jury during the trial on the merits and had provided important testimony for the State.

We have noted before that when attorneys go outside the permissible areas of jury argument they “too often place before the jury unsworn, and most times believable, testimony.” Alejandro v. State, 493 S.W.2d 230, 232 (Tex.Cr.App.1973). (Emphasis added.) Certainly in this case the argument of the prosecutor was given an extra measure of credibility because he had previously sworn to tell the truth before the jury.

Under these facts, the appellant has been denied a fair and impartial trial. Compare Moore v. State, 530 S.W.2d 536 (Tex.Cr.App.1975), and cases there cited.

The judgment should be reversed.

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

      . In Falco, the request for such an instruction was overruled.


author: DAVIS, Commissioner.

text:
    Ronald Lynn SCOTT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50918, 50919.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1976.

      Lindsey Enderby, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Bill Booth and Don Driscoll, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from two convictions for burglary of a habitation. Both causes were tried together and punishments were assessed by the jury at thirty and forty years.

The indictments aver that both offenses occurred on or about March 8,1974, and the record reflects that trial was in June, 1974.

In his sole ground of error, appellant contends that the court erred in admitting into evidence “testimony concerning the results of a search and seizure of an automobile driven by the appellant, as the search and seizure were made without probable cause and without the necessary exigent circumstances, in violation of appellant’s constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Constitution of the State of Texas and Article 38.23, C.C.P.”

The record reflects that the homes of Vesta Johnson and Descina Byrd were entered without their permission on March 8, 1974. A television set, tape recorder, record player and various other items were taken from the Johnson home located on Cooper Street. A portable television set was taken from the Byrd home on Granite Hill Street by the burglar.

Robert Johnson, a neighbor, identified appellant as the person he had seen removing a record player and television set from the home of Johnson at about 10:30 a. m. on the date in question. He took down the license number of the vehicle driven by appellant and transmitted this information to Johnson, who in turn called the police.

At about 1:10 p. m. on the same date, Joseph White and Johnny Spence observed a man carrying a television set out of the Byrd home. The men became suspicious, followed the automobile, took the license number of the car and relayed this information to the police. Spence made an in-court identification of appellant as the man he had seen removing the television set from the Byrd home.

Charles Storey, a Dallas police officer, received a radio message in his police car at about 1:40 p. m. the same day that a “white over blue Rambler" with license number LXC-947 was involved in burglaries. In “approximately 5 minutes” Storey saw the vehicle described in the broadcast, followed it a short distance and stopped the car. Storey identified appellant as the driver and sole occupant of the vehicle. Shortly after Storey stopped appellant, an unidentified officer arrived and opened the trunk of appellant’s car with a key Storey believed to have been taken from the ignition of the car. A search of the trunk resulted in the seizure of articles later determined to have been taken in the two burglaries.

In order for a warrantless arrest or search to be justified, the State must show the existence of probable cause at the time the arrest or search was made and the existence of circumstances which made the procuring of a warrant impractical. Reed v. State, Tex.Cr.App., 522 S.W.2d 916; Hooper v. State, Tex.Cr.App., 516 S.W.2d 941; Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744.

Appellant concedes that probable cause to stop appellant existed but urges that the exigent circumstances required for a war-rantless search of the automobile were not present. Appellant points to the fact that he was under arrest and urges that there was a burden on the State to show why the obtaining of a warrant was not practical.

We find appellant’s reliance on Stoddard v. State, supra, and Coolidge v. New Hampshire, 403 U.S. 443,91 S.Ct. 2022, 29 L.Ed.2d 564, to be misplaced. In both Coolidge and Stoddard the defendants were arrested in buildings, placed in custody and taken to jail. At a subsequent time, officers searched the defendants’ automobiles, found outside the buildings where the defendants were arrested. See Coyne v. State, Tex.Cr.App., 485 S.W.2d 917. Unlike White v. State, Tex.Cr.App., 521 S.W.2d 255, cited by appellant, the search of the vehicle in the instant case was at the place of arrest.

The question becomes one of whether, under the circumstances here presented, it was incumbent upon the officers to seize the vehicle, seek out a magistrate, obtain a search warrant and carry out a search pursuant thereto. See Harris v. State, Tex.Cr. App., 486 S.W.2d 88.

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, this very point is discussed by the United States Supreme Court, wherein the Court said:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”

We conclude that the search of appellant’s automobile and the seizure of the property taken in the burglaries were authorized and that the court did not err in admitting testimony relative to the results of such search and seizure.

The judgments are affirmed.

Opinion approved by the Court.

      . In Texas v. White, - U.S. -, 96 S.Ct. 304, 46 L.Ed.2d 209, the United States Supreme Court reversed our judgment in White v. State, supra, holding that where police officers with probable cause can search an automobile on the scene when it was stopped may constitutionally do so later at the station house without first obtaining a warrant, when the probable cause factor that developed on the scene still obtains at the station house.