author: REAVLEY, Justice. DOUGHTY, Justice

text:
    GIBSON PRODUCTS COMPANY, INC., et al., Appellants, v. The STATE of Texas, Appellee.
    No. B-5782.
    Supreme Court of Texas.
    Dec. 22, 1976.
    Rehearing Denied Jan. 19, 1977.

      Leo C. Michaud, Bardwell D. Odum, Dallas, for appellants.
    Henry R. Wade, Dist. Atty., John H. Ha-gler, Asst. Dist. Atty., Dallas, John L. Hill, Atty. Gen., David M. Kendall, Jr., Asst. Atty. Gen., Austin, for appellee.
   REAVLEY, Justice.

We have here another attack upon the constitutionality of the Sunday (or Saturday) closing law. The trial court enjoined appellants from selling or offering for sale, on consecutive Saturdays and Sundays, the merchandise enumerated in the statute; a direct appeal was then taken to this Court under Art. 1738a, Vernon’s Ann.Tex.Civ. Stat.

The sole contention is that the closing law is unconstitutional. The law is now Art. 9001, Vernon’s Ann.Tex.Civ.Stat. It was formerly Art. 286a of the Penal Code; when the new Penal Code was enacted in 1973, this particular law was transferred intact to the civil statutes. It has often been upheld as constitutional against the same equal protection and due process arguments as are repeated here. State v. Spartan’s Industries, Inc., 447 S.W.2d 407 (Tex.1969), dismissed for want of a substantial federal question, 397 U.S. 590, 90 S.Ct. .1359, 25 L.Ed.2d 596; Ralph Williams Gulfgate Chrysler Plymouth, Inc. v. State, 466 S.W.2d 639 (Tex.Civ.App.1971, writ ref’d n.r.e.); Sundaco, Inc. v. State, 463 S.W.2d 528 (Tex.Civ.App.1970, writ ref’d n.r.e.); Levitz Furniture Co. v. State, 450 S.W.2d 96 (Tex.Civ.App. 1969, writ ref’d n.r.e.).

Appellants point to the 1973 repeal of the Penal Code provisions (Arts. 283-287) which broadly prohibited labor and sales on Sunday, leaving only Art. 9001 as the constraint against sales on Saturday and Sunday. They argue that this bare constraint has no rational justification for what may be sold and for who may sell and for when the sales may be made. They argue that the proscriptions now have no reasonable relation to the health, recreation or welfare of the people.

Art. 286a, which was under review by this Court in 1969, did more than add the device of a court injunction to the sanction of the Penal Code prohibition against Sunday business operations. It removed all penalties for the sale of the enumerated items on Sunday by those who did not sell any of the items on Saturday. The need to justify that different treatment for those who chose to close shop on Saturday and open on Sunday took us to the same constitutional questions facing us in the present case.

In State v. Spartan’s Industries, Inc., supra, we said that we understood the principal plan of this statute to be the provision of effective sanctions to close most mercantile establishments on Sunday — Saturday being the better day for sales than Sunday. Allowing latitude for Sabbatari-ans and for some who prefer to tend only the Sunday trade, the Legislature thereby maintains the prevailing custom of people doing their serious shopping for clothing, furniture, automobiles, household and office appliances, and hardware on weekdays. When the Legislature retained the statute in 1973, it apparently decided to continue to serve that purpose. We regard the matter as a legislative question and reaffirm the constitutionality of the present statute.

The judgment of the trial court is affirmed.

Dissenting opinion by DOUGHTY, J., in which GREENHILL, C. J., and McGEE and SAM D. JOHNSON, JJ., join.

DOUGHTY, Justice

(dissenting).

I respectfully dissent.

The question is not whether the legislature could require all merchants to close one day a week. That constitutional question has already been decided in State v. Spartan's Industries, Inc., 447 S.W.2d 407 (Tex.1969). The question before us is this: assuming, as the majority opinion does, that all merchants may remain open seven days a week, may the legislature arbitrarily prohibit the sale of certain merchandise on both Saturday and Sunday?

The majority correctly points out that Tex.Rev.Civ.Stat.Ann. art. 9001 was originally codified as article 286a of the Penal Code of 1925. As such, this court held it constitutional in Spartan’s Industries, Inc. In 1973 the Texas Legislature enacted the present Penal Code and repealed much of the Penal Code of 1925. Certain articles, however, including article 286a, were transferred to the civil statutes. Tex.Laws of 1973, ch. 399, § 5, at 995. Among provisions repealed by the legislature were articles 283-286 and article 287 of the Penal Code of 1925. Prior to their repeal these statutes had broadly prohibited any labor or sales on Sunday. The net effect of this legislative activity was to remove nearly all constraints on Sunday labor, including the sale of merchandise, prohibiting only the sale of goods specified in article 9001. Gibson’s contends that article 9001, stripped of its former framework of Sunday closing laws, is unconstitutional because it denies equal protection and due process of the law and because it constitutes an unlawful exercise of police power.

I. Equal Protection

In Spartan’s Industries, Spartan’s, as I understand the opinion, based its equal protection argument on the difference in penalties for violation of Sunday closing laws. Under article 286, violators of the general closing requirement faced a maximum penalty of $50.00. Article 286a, applicable to a small group of merchants selling enumerated items, provided for enforcement of its provisions by injunctive relief. This court rejected the contention that such a distinction was discriminatory and indicated that the legislature was at liberty to treat flagrant violations of the law in a more severe manner as long as discrimination among competitors was avoided. 447 S.W.2d at 413.

The situation which we now face differs significantly from that before us in Spartan’s Industries. The rational basis for the classification in article 286a- — to insure that these flagrant violators of article 286, who might ignore a $50.00 fine, closed on Sunday — is no longer present. In Spartan’s Industries, we pointed out that article 286a “specifically provides in Sec. 5a that the older Sunday closing laws are not repealed.” 447 S.W.2d at 410. Article 9001, on the other hand, is not part of a broader framework designed to insure that all merchants, with a few exceptions, close. Instead, it is intended to force only stores selling particular goods to close. Those who fail to comply face an injunction. All other places of business may continue doing business on Saturday and Sunday as they would on any other day of the week.

The question then becomes whether there is some other rational basis upon which to uphold this legislation. The State argues, and by relying on Spartan’s Industries the majority apparently agrees, that article 9001 is a valid solution to complex problems concerning first amendment freedom of religion. Both point out that the option of opening on either Saturday or Sunday was adopted with Sabbatarians in mind. This argument is wide of the mark. Accepting the premise that there is a constitutional problem of religious liberty involved, it is not readily apparent why the legislature has prohibited certain merchants (i. e. those dealing in the listed merchandise) from selling on both Saturday and Sunday, while allowing all other merchants to sell on both days. The question why such a classification is rational remains. The provision of article 9001 forcing a choice of Saturday or Sunday sales could perhaps be justified on religious grounds if all sales on consecutive Saturdays and Sundays were prohibited. With the repeal of article 283, however, no such prohibition exists.

The majority has not attempted to suggest a rationale for this classification. I do not think one exists. I would hold that article 9001 is a discriminatory classification, denying Gibson’s equal protection of the law.

II. Due Process

An equally compelling reason to overturn this statute lies in the constitutional requirement of due process. Although there is legislative discretion in the area of economic regulation, the measure adopted must bear a reasonable relation to the proposed end. Spartan's Industries, supra at 414. In Spartan’s Industries, we held that it was reasonable to provide for injunctive relief against certain violators of the Sunday closing law in order to obtain the objective of a one-day surcease from commerce. 447 S.W.2d at 411-12. The legislature, by repealing articles 283-286 and article 287, apparently abandoned this objective. Presumably the legislature believed that the health, recreation, and welfare of the people of the state no longer required general abstinence from commerce one day a week.

The majority opinion, however, disagrees; the legislative objective remains “to close most mercantile establishments on Sunday.” Can it be said that the legislature was reasonably entitled to expect that article 9001 would attain the admittedly valid objective of limiting Sunday operations only by Sabbatarians and perhaps an occasional small storekeeper? I think not. Prohibiting the sale of certain merchandise on either Saturday or Sunday of any given week in no way limits the ability of the citizenry in general to carry on commerce if all other business may continue.

The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive the state of the right to take private property by the exercise of such power in a proper and lawful manner, but it is essential that the power be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists, (emphasis ours)

State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 602 (1957). Article 9001 penalizes only those persons who sell the listed merchandise. There is no proscription against other merchants, tradesmen, or professional people conducting business seven days a week. There is no limitation on the use of labor on both Saturday and Sunday to manufacture the merchandise that article 9001 prohibits selling. The exceptions that we previously were willing to allow have engulfed the rule. I find no reasonable relationship between the ostensible objective of this statute and the general welfare of the people.

Although not unmindful of the argument that certain merchants who open seven days a week may act as catalysts, prompting establishments which would otherwise close on either Saturday or Sunday to continue operating through the weekend out of fear that their business will be siphoned away, I am unpersuaded. One could argue with equal force that a small store dealing exclusively in an item also carried by a large department store may actually be encouraged to open both Saturday and Sunday. If that item is not covered by article 9001, the smaller store may have an unfair trade advantage over the larger store, which is economically prohibited from opening on Sunday to sell that item alone.

The majority seeks to justify this statute as a solution to a “legislative question.” I would require that this statute, as well as any other enacted by the legislature, conform to all constitutional guarantees under accepted standards of judicial review. Although the legislature could enact a Sunday closing law that would meet constitutional requirements, article 9001 does not do so. It denies Gibson’s equal protection and due process of the law under the fourteenth amendment to the United States Constitution and article I, section 19 of the Texas Constitution. Therefore, I would reverse the judgment of the trial court and render judgment for appellant.

GREENHILL, C. J., and McGEE and SAM D. JOHNSON, JJ., join in this dissent.

      . Article 9001 provides:
      Section 1. Any person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale or shall compel, force or oblige his employees to sell any clothing; clothing accessories; wearing apparel; footwear; headwear; home, business, office or outdoor furniture; kitchenware; kitchen utensils; china; home appliances; stoves; refrigerators; air conditioners; electric fans; radios; television sets; washing machines; driers; cameras; hardware; tools, excluding non-power driven hand tools; jewelry; precious or semi-precious stones; silverwear; watches; clocks; luggage; motor vehicles; musical instruments; recordings; toys, excluding items customarily sold as novelties and souvenirs; mattresses; bed coverings; household linens; floor coverings; lamps; draperies; blinds; curtains; mirrors; lawn mowers or cloth piece goods shall be guilty of a misdemeanor. Each separate sale shall constitute a separate offense.
      Sec. 2. Nothing herein shall apply to any sale or sales for charitable purposes or to items used for funeral or burial purposes or to items sold as a part of or in conjunction with the sale of real property.
      Sec. 3. For the first offense under this Act, the punishment shall be by fine of not more than One Hundred Dollars ($100.00). If it is shown upon the trial of a case involving a violation of this Act that defendant has been once before convicted of the same offense, he shall on his second conviction and on all subsequent convictions be punished by imprisonment in jail not exceeding six (6) months or by a fine of not more than Five Hundred Dollars ($500.00), or both.
      Sec. 4. The purpose of this Act being to promote the health, recreation and welfare of the people of this state, the operation of any business whether by any individual, partnership or corporation contrary to the provisions of this Act is declared to be a public nuisance and any person may apply to any court of competent jurisdiction for and may obtain an injunction restraining such violation of this Act. Such proceedings shall be guided by the rules of other injunction proceedings.
      Sec. 5. Occasional sales of any item named herein by a person not engaged in the business of selling such item shall be exempt from this Act.

      . Prior to their repeal, these statutes provided as follows:
      Article 283. Any person who shall labor, or compel, force, or oblige his employes, workmen, or apprentices to labor on Sunday, or any person who shall hunt game of any kind whatsoever on Sunday within one-half mile of any church, school house, or private residence, shall be fined not less than ten nor more than fifty dollars.
      Article 284. The preceding article shall not apply to household duties, works of necessity or charity; nor to necessary work on farms or plantations in order to prevent the loss of any crop; nor to the running of steamboats and other water crafts, rail cars, wagon trains, common carriers, nor to the delivery of goods by them or the receiving or storing of said goods by the parties or their agents to whom said goods are delivered; nor to stages carrying the United States mail or passengers; nor to foundries, sugar mills, or herders who have a herd of stock actually gathered and under herd; nor to persons traveling; nor to ferrymen or keepers of toll bridges, keepers of hotels, boarding houses and restaurants and their servants; nor to keepers of livery stables and their servants; nor to any person who conscientiously believes that the seventh or any other day of the week ought to be observed as the Sabbath, and who actually refrains from business and labor on that day for religious reasons.
      Article 285. Any person who shall run or be engaged in running any horse race, or who shall be engaged in match shooting or any species of gaming for money or other consideration, within the limits of any city or town on Sunday, shall be fined not less than Twenty Dollars ($20) nor more than Fifty Dollars ($50).
      Article 286. Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the agent or employe of any such person, who shall sell, barter, or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term place of public amusement, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives and places of like character, with or without fees for admission.
      Article 287. The preceding Article shall not apply to markets or dealers in provisions as to sales of provisions made by them before nine o’clock A.M., nor to the sales of burial or shrouding material, newspapers, ice, ice cream, milk, nor to any sending of telegraph or telephone messages at any hour of the day or night, nor to keepers of drug stores, hotels, boarding houses, restaurants, livery stables, bath houses, or ice dealers, nor to telegraph or telephone offices, nor to sales of gasoline, or other motor fuel, nor to vehicle lubricants, nor to motion picture shows, or theatres operated in any incorporated city or town, after one o’clock P.M.

      . Although article 286a § 1 (as well as the comparable provision of article 9001) is broadly applicable to “any person,” § 5 exempts “occasional sales.” The effect of this language is to limit coverage of the statute to those who regularly make sales of the listed goods. In the vast majority of cases these will be merchants selling in the course of their business.

      . But see Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 7 L.Ed.2d 536 (1961), upholding Massachusetts’ Sunday closing law in the face of first amendment religious freedom challenges.


source: Caselaw Access Project

author: DALLY, Commissioner. DOUGLAS, Judge

license: Public Domain

text:
    Robert F. TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 51762.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    Dissenting Opinion On State’s Motion for Rehearing Jan. 26, 1977.

      Robert D. McPherson, Pampa, for appellant.
    Guy S. Hardin, Dist. Atty., Shamrock, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of felony theft under the provisions of our former penal code; the jury assessed punishment at imprisonment for 10 years.

Appellant challenges the sufficiency of the evidence and contends that he was denied the right to a speedy trial. In light of our disposition of this cause, we need only address the latter contention.

The offense is alleged to have occurred on June 30, 1972; an indictment was returned against appellant on August 14, 1972. Although the record is not clear, appellant and the State agree that at the time the indictment was returned appellant was incarcerated in a federal penitentiary, and that thereafter, on August 15, 1972, a detainer was placed on appellant by the authorities of this State. Subsequent to the placing of the detainer, appellant made several efforts to obtain a speedy trial; a chronology and summary of those efforts and the official action taken as reflected by the record follows:

August 14, 1972: Indictment returned.

August 15,1972: Detainer placed on appellant

December 29, 1972: Appellant filed a motion denominated “Petition for a Fair and Speedy Trial,” requesting that he be brought to trial or, in the alternative, that the charges against him be dismissed.

July 17, 1973: Letter from Gray County District Clerk to appellant, informing him that the above motion had been filed and that a copy of the motion had been forwarded to the District Attorney.

July 23, 1973: Appellant filed a motion to quash the indictment, requesting, in the alternative, that he be granted a speedy trial.

August 26, 1973: Letter from appellant to Gray County District Clerk inquiring whether any action had been taken on his motion filed on July 23, 1973.

_: Undated letter from Gray County District Clerk to appellant, repeating what she had stated in her letter of July 17, and indicating the District Attorney had advised her “that the other defendant in this case is trying to make restitution and this will need to be considered.”

October 24,1973: A letter bearing this date from the Attorney General of Texas to the District Attorney for the 31st Judicial District advised that action be taken on appellant’s request for a speedy trial at the “earliest opportunity.”

October 26, 1973: A letter to the District Attorney from an administrative assistant at the United States Penitentiary at Leavenworth, Kansas, inquiring on behalf of appellant whether any action had been taken on his request for a speedy trial.

September 23,1974: Counsel was appointed for appellant.

September 23,1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

September 30, 1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

October 10, 1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

October 30, 1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

October 30, 1974: Writ of habeas corpus ad prosequendum issued to the warden of the federal penitentiary in Springfield, Missouri.

November 12,1974: A letter from appellant to Gray County District Clerk contained a copy of a “Motion for Writ of Prohibition” purportedly filed in the United States District Court for the Western District of Texas. The motion requested that the federal court prohibit the effec-tuation of a writ of habeas corpus ad prosequendum to move appellant from the U. S. Medical Center for Federal Prisoners, Springfield, Missouri, to Gray County, Texas, for trial. Appellant contended that his right to speedy trial had been violated and that he could no longer be brought to trial on the pending charges.

November 18, 1974: Appellant’s pretrial motion to quash the indictment filed by his appointed counsel heard and overruled.

November 20, 1974: Trial on the merits.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution as applied through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The same right is assured by Article I, Section 10 of the Texas Constitution and Article 1.05, V.A.C.C.P.

The determination of whether an accused has been denied the right to a speedy trial is to be made by use of a “balancing test” which was set out in Barker v. Wingo, supra. In each individual case the Court requires consideration of the following factors although they are not exclusive: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant resulting from the delay. See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Wilkerson v. State, 510 S.W.2d 589 (Tex.Cr.App.1974); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973). We will consider each of these criteria as applied to the case at bar.

LENGTH OF DELAY

The length of delay, much the same as the other criteria, is to be considered on a case by case basis. There is no precise length of delay which would irrefutably constitute a violation of the right to a speedy trial in all cases. In Barker v. Wingo, supra, it was said that:

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiring into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the particular circumstances of the case.”

In determining whether the right to speedy trial has been denied, the length of delay is measured from the time the defendant is formally accused or arrested. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). In this case appellant was incarcerated in a federal penitentiary at the time he was indicted on August 14, 1972; thereafter, on August 15, 1972, a detainer was placed upon appellant by this State. The time between the return of the indictment and the trial was some two years and three months. Such a delay is not, per se, a deprivation of the appellant’s right to a speedy trial, but is certainly a fact requiring further consideration of appellant’s claim. Barker v. Wingo, supra; and see McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973); Harris v. State, 489 S.W.2d 303 (Tex.Cr.App.1973); McKinney v. State, supra.

REASON FOR THE DELAY

It has been said that in considering the reason for delay different weight should be assigned to different reasons.

“A deliberate attempt to delay the trial in order to hamper the defensive should be weighted heavily against the government [footnote omitted]. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” Barker v. Wingo, supra, 92 S.Ct. at 2192.

And see Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

The reason for the delay in this case is not well developed in this record. The appellant was incarcerated by federal authorities during the entire period of delay. The State has asserted that the delay was due in part to the fact that appellant was moved from one institution to another, that “on several occasions when the State’s Application for Writ of Habeas Corpus Ad Prose-quendum arrived at the federal institution, the defendant had been transferred to another federal institution and it was necessary for the State to file a new writ.” While this may have been the case, we note that the record reflects the State did not file its first application for a writ until two years and one month after appellant had been indicted. At the hearing on appellant’s pretrial motion to quash the indictment, the prosecutor admitted that after the appellant initially requested a speedy trial a lengthy period of time had elapsed during which the State made no effort to return appellant for trial; he did, however, assert that some delay was attributable to various motions appellant had allegedly filed in an attempt to resist a return to this jurisdiction. In the record before us, the only indication we find that appellant resisted this State’s attempts to bring him to trial is the “Motion for Writ of Prohibition” filed in a Federal District Court some two weeks prior to the trial of this case and some two years and three months after he was indicted.

The State has failed to supply a reason which would excuse the delay in bringing the appellant to trial. In Dickey v. Florida, supra, it was said the “[t]he State suggests no tenable reason for deferring the trial in the face of petitioner’s diligent and repeated efforts by motions in the state court ... to secure a prompt trial.” 90 S.Ct. 1564, at 1568. It can therefore be seen that the burden of excusing the delay rests with the State and that in light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason for delay existed.

APPELLANT’S ASSERTION OF HIS RIGHTS

“The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult to prove that he was denied a speedy trial.” Barker v. Wingo, supra, 92 S.Ct. at 2192-2193.

Appellant first moved the Gray County authorities to grant him a speedy trial in December, 1972, some four months after he had been indicted. Thereafter, appellant continued to make known his desire for a speedy trial, both through his own correspondence and through efforts of others such as the Attorney General of Texas and an administrative assistant at the institution in which appellant was confined. Suffice it to say that appellant asserted his right to a speedy trial early in the period of delay and asserted it on subsequent occasions.

PREJUDICE TO THE APPELLANT

It is generally said that there are three interests to be considered in determining prejudice to the defendant; these interests are: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker v. Wingo, supra; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627; Smith v. Hooey, supra; Klopfer v. North Carolina, supra; Harris v. State, supra; McKinney v. State, supra. Appellant has made no serious contention that his ability to present a defense was prejudiced by the delay between indictment and trial.

In McCarty v. State, supra, we stated the following:

“During almost the entire time in question, the appellant was in custody under convictions in other jurisdictions. Under these circumstances we are therefore mainly concerned with whether or not appellant’s ability to defend himself was prejudiced by the delay. Harris v. State, supra.” 498 S.W.2d 212, at 218.

Upon re-examination we conclude that when an accused is incarcerated in other jurisdictions, prejudice wholly apart from impairment of the presentation of a defense may be shown to flow from a delay in according the accused his right to a speedy trial. In Smith v. Hooey, supra, it was said that:

“At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from ‘undue and oppressive incarceration prior to trial.’ But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.
“And while it might be argued that a person already in prison would be less likely than others to be affected by ‘anxiety and concern accompanying public accusation,’ there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large.” 89 S.Ct. 575, at 577.

See also Strunk v. United States, supra; Moore v. Arizona, supra; McCarty v. Heard, 381 F.Supp. 1290 (D.C.Tex.1974).

In the case before us the sentence recites that the “judgment and sentence shall begin to run from and after the 14th day of November, 1974, the date the Defendant was placed in jail in this Cause.”

Since appellant was indicted in August, 1972, it can be seen that he was deprived of the possibility of receiving a sentence at least partially concurrent with his federal sentence while more than two years of that sentence passed by. Additionally, the de-tainer that was placed on him by the authorities of this State may well have prejudiced his opportunity for clemency, pardon, parole or to be a trusty.

None of the four factors discussed above [length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant] are regarded as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Barker v. Wingo, supra; Moore v. Arizona, supra. Rather, they are related factors to be considered together in a “difficult and sensitive balancing process.”

In the case at bar we find the following:

(1) There was a delay of more than two years between indictment and trial;

(2) Appellant asserted his right to a speedy trial early and persistently;

(3) Appellant was prejudiced as a result of the delay; and

(4) The State offered no tenable reason for the delay. We therefore conclude that appellant was deprived of his right to a speedy trial. As was stated in Strunk v. United States, supra, “In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker noted, ‘the only possible remedy.’ ” 93 S.Ct. 2260, at 2263.

The judgment is reversed anji the prosecution ordered dismissed.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The State’s motion for rehearing has been overruled without written opinion.

In the opinion on original submission the judgment was reversed on the ground that appellant was denied the right to a speedy trial. The State’s contention is that there is no showing that appellant was prejudiced by the delay. The prior opinion should be withdrawn and the judgment should be affirmed.

The original opinion concluded that appellant was deprived of the possibility of receiving a sentence at least partially concurrent with his federal sentence while more than two years of that sentence passed by. That conclusion was in error.

The original opinion in this cause should be reconsidered in light of our holding in Ex parte Jasper and Broussard, 538 S.W.2d 782 (Tex.Cr.App.1976). That case involved a post conviction habeas corpus proceeding wherein petitioners alleged that the State refused to comply with a plea bargaining agreement. Both petitioners had entered guilty pleas to three indictments charging them with robbery by firearms, as co-defendants, and were each assessed three fifteen year concurrent prison sentences on September 9, 1974. Both petitioners were promised credit for time spent in jail in Louisiana toward the discharge of their Texas sentences as a part of the plea bargaining negotiations. We held that petitioners were entitled to such credit as a matter of due process of law.

We further held that petitioners were entitled to this jail time credit under the mandatory provisions of Article 42.03, Section 2, V.A.C.C.P., effective August 27, 1973. That section reads as follows:

“Sec. 2. In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court.”

The State of Texas placed a detainer on petitioners for the robbery cases on March 19, 1970, which was prior to their convictions and commitments to the Louisiana State Penitentiary. We held that:

“Once the Texas detainer was filed against the petitioners in Louisiana, the petitioners were in ‘constructive custody’ of the State of Texas and therefore, since the petitioners were sentenced after the effective date of the amendment of Article 42.03, supra, the petitioners are entitled to flat time credit for the time spent in custody, even in the State of Louisiana, from March 19, 1970, until the present date.”

Likewise, we held in Ex parte Jasper and Broussard that petitioners were entitled to consideration for “good time” credits, as a matter of law, under the authority of Article 42.03, Section 4, Y.A.C.C.P., as amended on August 27, 1973. That section reads as follows:

“Sec. 4. When a defendant who has been sentenced to imprisonment in the Department of Corrections has spent time in jail pending trial and sentence or pending appeal, the judge of the sentencing court shall direct the sheriff to attach to the commitment papers a statement assessing the defendant’s conduct while in jail. On the basis of the statement, the Department of Corrections shall grant the defendant such credit for good behavior for the time spent in jail as he' would have earned had he been in the custody of the department.”

In the instant case, Article 42.03, supra, as amended, is applicable because appellant was tried on November 20, 1974, and sentenced on November 21. Thus, as a matter of law, his Texas sentence ran concurrently, in part, with his federal sentence. He is entitled to flat time credit toward the discharge of his Texas sentence from the time the detainer was placed on him, August 15, 1972, to the time that he was sentenced. He is also entitled to consideration for “good time” credits which may be awarded pursuant to the rules and regulations of the administration of the Texas Department of Corrections. The record before this Court does not reflect whether appellant maintained a good conduct record while in the federal penitentiaries (during the period of delay appellant was apparently transferred from one federal institution to another). The Texas Department of Corrections’ officials could ascertain from the officials of those institutions whatever is required to determine appellant’s conduct record. The Texas officials could then make the appropriate decisions in awarding appellant with good conduct credit, if any, based upon the records from the federal penitentiaries.

In view of the foregoing, there is no indication in the record that appellant was harmed in any manner by the trial delay. While the original opinion concluded that the detainer placed on him by the authorities of this State may have prejudiced his opportunity for clemency, pardon, parole, or trusteeship in federal prison, that conclusion had no support in the record and was, thus, merely speculative. There was no showing of just how many convictions in federal courts appellant had.

He did not subpoena a witness. He does not claim that he lost a witness or that his defense was hampered in any way.

On balance, then, the lack of harm suffered by appellant outweighs the trial delay.

The State’s motion for rehearing should be granted, and the judgment should be affirmed.

      . “Honorable Guy Hardin
      District Attorney Gray County Courthouse Pampa, Texas 79057
      Re: ROBERT F. TURNER
      Dear Mr. Hardin:
      This office has been advised that the above named subject has requested a speedy trial in your county.
      We would therefore, respectfully suggest that you take some action in this matter at your earliest opportunity. We would also suggest that you consider the holdings of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575 [21 L.Ed.2d 607] (1969); Kane v. Virginia, 419 F.2d 369 [1369] (4th Cir.1970), and Dickey v. Florida, 398 U.S., p. 30 [90 S.Ct. 1564, 26 L.Ed.2d 26], 1970, which make federal habeas corpus (28 U.S.C. § 2254) proceedings available to a convict in order to bar prosecution evident by detainers lodged against the convict when the proof shows (1) that the prisoner demanded a speedy trial and (2) that the State nevertheless failed to make a diligent effort to obtain him for trial. The Supreme Court of the United States in Strunk v. United States [412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56], 13 Cr.L. 3139 (June 11, 1973), held that a violation of the Sixth Amendment right to a speedy trial requires reversal of the conviction and dismissal of the indictment.
      In this connection, I am taking the liberty of sending you a copy of a memorandum from the United States Department of Justice, Bureau of Prisons, which sets forth the conditions governing the production of a United States prisoner upon a writ of habeas corpus issuing out of a state court.

        If I can be of any assistance to your office in effecting the return of this subject to Texas to stand trial, please let me know. I would appre-cíate very much your keeping me advised of whatever action you decide to take.”

      . As an example of how the circumstances of each case can play a part in the inquiry into the length of delay, the Court stated that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker v. Wingo, supra, 92 S.Ct. at 2192. In the case at bar appellant was indicted and convicted for the offense of theft.


author: DAVIS, Commissioner. DOUGLAS, Judge

text:
    Michael Wayne MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 53059.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.
    Dissenting Opinion On State’s Motion For Rehearing Jan. 26, 1977.

      Otis T. Clark, Port Worth, for appellant.
    Tim C. Curry, Dist. Atty., Paul E. Gart-ner, Jr. and Marvin Collins, Asst. Dist. At-tys., Fort Worth, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for attempting to obtain a controlled substance by fraud. Trial was before the court upon a plea of guilty, and punishment was assessed at two years.

The indictment alleged the offense occurred on or about July 25, 1975, and the record reflects that trial was on January 14, 1976.

Appellant contends in his sole ground of error that the indictment under which he was convicted is fatally defective because the offense charged does not exist under the laws of the State of Texas. The pertinent portion of the indictment recites as follows:

“. . . that appellant did then and there with the specific intent to commit the offense of obtaining a controlled substance by fraud, did then and there knowingly and intentionally attempt by forgery, to acquire and obtain possession from Kathy Baker, of a controlled substance, to-wit: amphetamine by then and there using a forged prescription said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.”

Appellant urges that the indictment is defective because there is no law against attempting to obtain a controlled substance by fraud.

Article 4476-15, V.A.C.S., Sec. 4.09(a)(3), “The Controlled Substances Act,” states that:

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

Section 4.09, supra, does not classify “attempt to obtain a controlled substance by fraud” as an offense, and no general criminal attempt provision is contained in the Controlled Substances Act.

The State argues that the Legislature intended for the criminal attempt provision of the new Penal Code, effective January 1, 1974, to apply to the Controlled Substances Act. We do not agree.

V.T.C.A., Penal Code, Sec. 15.01(a), reads as follows:

“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

However, V.T.C.A., Penal Code, Sec. 1.03(b), states that:

“The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.” (Emphasis supplied.)

The general attempt provisions of Sec. 15.01, supra, are contained in Title 4 of the Penal Code and thus Sec. 1.03(b), supra, does not apply to Sec. 15.01, supra.

The forerunners of the Controlled Substances Act, the Uniform Narcotic Act, Art. 725b, V.A.P.C., and the Dangerous Drug Act, Art. 4476-14, V.A.C.S., did not contain “attempt” provisions originally, but through subsequent amendments both were provided with such provisions.

The Uniform Narcotic Act was repealed in 1973 with the enactment of the Controlled Substances Act. The Legislature saw fit to retain the “attempt” offenses in the Dangerous Drug Act, but omitted such provisions from the Controlled Substances Act. We can only conclude that the Legislature intended to omit the “attempt” offenses from the Controlled Substances Act. Contrary to the State’s argument, we cannot agree that the Legislature in enacting the Controlled Substances Act, effective August 27, 1973, made such omission with the knowledge that the new Penal Code (effective four months after the Controlled Substances Act) would make the necessary provisions for making any attempt to violate any provisions of the Controlled Substances Act a criminal offense.

We hold that the attempt provisions set forth in the new Penal Code in Sec. 15.01, supra, do not apply to the Controlled Substances Act. The indictment in the instant case does not allege an offense and consequently the conviction based thereon is void. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Shane v. State, Tex.Cr.App., 513 S.W.2d 579.

The judgment is reversed, the cause remanded, and the prosecution ordered dismissed.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The majority overrules the State’s motion for rehearing without written opinion.

The judgment was reversed on the ground that attempting to obtain a controlled substance by fraud is not an offense under the laws of this State. I agree with the State’s contention that the attempt provisions set forth in V.T.C.A., Penal Code, Section 15.01, apply to the Controlled Substance Act. The judgment should be affirmed.

The conviction was upon a plea of guilty before the court and punishment was assessed at two years. The sole contention is that the indictment is fatally defective because the offense of attempting to obtain a controlled substance by fraud does not exist under the laws of this State.

Article 4476-15, V.A.C.S., Section 4.09(a)(3), “The Controlled Substances Act”, does not classify “attempt to obtain a controlled substance by fraud” as an offense, nor does the Act contain a general criminal attempt provision. In contrast, the Dangerous Drug Act as reenacted retained its attempt provisions (Article 4476-14, V.A. C.S., Section 14).

V.T.C.A., Penal Code, Section 15.01(a), provides that:

“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

However, Y.T.C.A., Penal Code, Section 1.03(b), provides:

“The provisions of Titles 1, 2 and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.” (Emphasis added).

The general attempt provisions of Section 15.01, supra, are contained in Title 4 of the Penal Code. In the original opinion we concluded that Title 4 does not apply to offenses defined outside the Code.

The Controlled Substances Act, the Dangerous Drug Act and the Penal Code were enacted at the same session of the Legislature. They must be considered as being in pari materia although they contain no reference to one another and were not enacted simultaneously. Thus, the statutes must be construed together in arriving at the legislative intent. See 53 Tex.Jur.2d, Statutes, Sections 186-188, pp. 280-288. See also Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); and Loper v. Beto, 440 F.2d 934 (5th Cir. 1971). See and compare Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975); Lovett v. Simmons, 29 S.W.2d 1021 (Tex.Com.App.1930); Oliphant v. Buie, 134 S.W.2d 71 (Tex.Civ.App., Waco 1939); City of Beaumont Independent School District v. Broadus, 182 S.W.2d 406 (Tex.Civ.App., Amarillo 1944).

The in pari materia rule is bottomed on the supposition that “several statutes relating to one subject are governed by one spirit and policy, and are intended to be consistent and harmonious in their several parts and provisions.” 53 Tex.Jur.2d, supra, at pp. 283-284. Thus, effect must be given to all the provisions of each act so that they stand together and have concurrent efficacy.

The purpose of the rule is to effectuate the full legislative intent. We should find that the Penal Code and the Controlled Substances Act are complementary and have no difficulty in construing the statutes together. Accordingly, we should hold that the general attempt provisions set forth in Section 15.01, supra, apply to the Controlled Substances Act.

Other well established rules of statutory construction provide further support for our holding. Newsome v. State, 372 S.W.2d 681 (Tex.Cr.App.1963), held that in construing a statute its subject matter, reason and effect must be looked to and when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.

Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975), held that it is presumed that the Legislature, in enacting a statute, intended a just and reasonable result and a result feasible of execution. There is no sound reason in policy or logic for the Legislature to intend to omit an attempt provision from the Controlled Substances Act. Such omission would lead to the absurd result that one could be prosecuted if a pharmacist gave him a prohibited substance in reliance on a forged prescription, but not if the pharmacist recognized and frustrated the criminal enterprise before it was completed. The Legislature could not have intended such a result.

When the Legislature enacted the Controlled Substances Act, it omitted the limited attempt provisions of the act’s predecessor and altered the punishment provisions to conform to the punishment scheme set forth in the new Penal Code. This underscores the foregoing reasoning.

The wording of Y.T.C.A., Penal Code, Sections 15.01(a) and 1.03(a), sheds further light on the Legislature’s intent. Section 15.01(a) is not limited to offenses defined in the code. It states that one must intend to commit “an offense” to come within the ambit of the attempt provisions. Sections 1.03(a) provides that:

“Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.”

Thus, it was the intent of the Legislature to make all attempts to commit all offenses a violation of the provisions of Title 4 on Preparatory Offenses.

It appears that the Legislature intended that an attempt to commit an offense involved in the Controlled Substances Act would not constitute an offense while attempts at all other crimes within the Penal Code would constitute offenses. Such a conclusion would contravene Section 1.05(a) of the Penal Code which provides:

“The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objective of the code.” (Emphasis added).

See also the Code Construction Act, Article 5429b — 2 (Supp.), Y.A.C.S.

Finally, Section 14 of the Dangerous Drug Act makes attempts to obtain dangerous drugs by fraudulent means a crime. That act and the Controlled Substances Act were imbued with the same policy and spirit. It would be anomalous to conclude that one act but not the other was intended to contain an attempt provision.

Since the attempt provisions set forth in the Penal Code apply to the Controlled Substances Act, the indictment in the instant case properly alleges an offense. As a result the conviction based thereon should be upheld.


author: ODOM, Judge. ONION, Presiding Judge.

text:
    Jarvis Charles MOSLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 51972.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.
    Opinion on State’s Motion for Rehearing Jan. 12, 1977.
    Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Donald H. Flanary, Jr., Kelly W. Loving and Mike E. Keasler, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of aggravated assault. His punishment, enhanced, was assessed at twenty years.

Appellant asserts that the evidence is insufficient to prove that a pistol was used during the offense as alleged in the indictment. He argues that the State’s evidence was insufficient to prove that the weapon used during the commission of the offense was a deadly weapon. See, Y.T.C.A. Penal Code Sec. 22.02(a)(3). If the weapon used is not a deadly weapon, a conviction for aggravated assault obtained under V.T.C.A. Penal Code Sec. 22.02(a)(3), cannot be upheld.

The Penal Code defines deadly weapon as:

“(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” V.T.C.A. Penal Code Sec. 1.07(a)(ll).

The record reflects that appellant accosted the victim in a parking lot, pointed an unloaded B.B. gun at her, and threatened to kill her if she did not follow his instructions. He then had a change of heart, probably because a policeman was in the vicinity, and discontinued his threats.

The evidence establishes that the B.B. gun, an air pistol, was unloaded; that it was never pointed toward the face of the victim; and that appellant never used or threatened to use it as a bludgeon. The State’s expert witness testified that the B.B. gun projectile could not penetrate skin, but that there was a good probability it could cause loss of sight if a person were shot in the eye. This witness also stated that the gun was of sufficient mass to cause serious bodily injury if used as a bludgeon.

A witness for the defense stated that the air pistol used by appellant constantly misfired and, when it did fire, the projectile had a very low velocity and rarely went over five feet. The B.B. gun was fired in front of the jury. It misfired on the first attempt. The record does not demonstrate how far or fast the projectile went when the gun did fire.

We must determine whether the air pistol, as used by appellant, is a deadly weapon as defined in V.T.C.A. Penal Code Sec. 1.07(a)(ll). Prior to enactment of the new Penal Code, we stated:

“Ordinarily, a gun is a deadly weapon, per se. It may, however, be used in such a manner as to show that it is not such, (citations omitted). A deadly weapon is one which, in the manner used, is calculated to produce death or serious bodily injury. In the instant case, the use of the gun produced neither death nor serious bodily injury. The test, then, is whether, by the manner in which it was used, it was calculated to do either.” Brown v. State, 155 Tex.Cr.R. 233, 233 S.W.2d 578, 579.

The threshold question before us is whether our past decisions have any weight now that “deadly weapon” has been defined by the Legislature. One commentary to the new Penal Code observes:

“It would appear that prior Texas law provided, as here, that an instrument may become a deadly weapon by the manner of its use or capability for use.” Branch’s Ann.Tex. Penal Statutes, 3rd Ed., Sec. 1.07(11), p. 27. (emphasis added)

Our prior opinions on the meaning of “deadly weapon” do and should have instructional significance under the new Penal Code. This approach is particularly appropriate in light of the fact that the Legislature has apparently codified our prior case law definition of the term.

In the case at bar, the air pistol does not fit the definition provided by the statute. The state’s expert testified that an air pistol is not a firearm. Further, it would be unreasonable to conclude, on the basis of the evidence, that the weapon was “designed, made or adapted for the purpose of inflicting death or serious bodily injury.” V.T.C.A. Penal Code Sec. 1.07(a)(ll)(A).

The air pistol, as used, was not calculated to produce death or serious bodily injury. Brown v. State, supra; V.T.C.A. Penal Code Sec. 1.07(a)(ll)(B). The evidence is insufficient to show that the assault was aggravated by the use of a deadly weapon.

The judgment is reversed and the cause remanded.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On rehearing the State urges that the court was erroneous in its conclusion that the evidence is insufficient to show that the assault was aggravated by the use of a deadly weapon.

The State notes that V.T.C.A., Penal Code, § 22.02(a)(3), makes an assault an aggravated assault if a “deadly weapon” is used. A deadly weapon is defined in V.T. C.A., Penal Code, § 1.07(a)(ll), as “(A) a firearm . . . .” The State argues that the only place in the Penal Code a firearm is defined is in V.T.C.A., Penal Code, § 46.-01(3), which provides that a “ ‘firearm’ means any device designed, made or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . . . ”

The State argues that the device in question was referred to in the court’s opinion as “an air pistol” and that the device obviously comes within the definition of a firearm. It appears to be the State’s concern that this court in its opinion on original submission has held that an air pistol could never be a deadly weapon.

While the BB pistol was referred to in such opinion as an “air pistol” on several occasions, a careful reading of the opinion shows reference was only to the particular device involved. In holding that the device involved did not constitute a firearm and therefore the evidence was insufficient to show the assault was aggravated by use of a deadly weapon, the opinion did not attempt to exclude all types of air guns or pistols from the definition of a firearm. We do not reach that question in this case.

It is observed that Dr. Vincent DeMaio, an associate medical examiner for Dallas County, testified the pistol involved in the instant case was a spring activated air gun. The arresting police officer, after being read the statutory definition of a firearm, stated the BB pistol was not a firearm, and stated, “. . .it does not have a powdered explosion.” A defense witness familiar with the device stated he knew how it worked. The record on direct examination then reflects:

“Q. Is a BB powered by pulling this spring back here?
“A. Right.
“Q. And you put a BB in this hole up here (indicating)?
“A. Right.
“Q. And then you put that back down (indicating)?
“A. Right.
“Q. And you pull the trigger?
“A. Right.
“Q. And it shoots a BB out?
“A. Right.”

It does not appear that the spring in this “air” pistol was any more of an explosive device than the string in Robin Hood’s bow.

Under the circumstances of the instant case, we adhere to our decision on original submission. The State’s motion for rehearing is overruled.

      . The State indicted appellant for aggravated assault on the basis that a deadly weapon was used to commit the offense. V.T.C.A. Penal Code Sec. 22.02(a)(3) provides:
      “(a) A person commits an offense if he commits assault as defined in Section 22.01 of this code and he:

      “(3) uses a deadly weapon.”

      . The pistol was not a deadly weapon as a bludgeon. A pistol is deemed a deadly weapon in this manner only if it is actually used to strike at the victim. See, e.g. Shadle v. State, 34 Tex. 572; Branch v. State, 35 Tex.Cr.R. 304, 33 S.W. 356; Hays v. State, Tex.Cr.App., 480 S.W.2d 635.

      .See our discussion of the relation of prior decisions to the new Penal Code in Day v. State, Tex.Cr.App., 534 S.W.2d 681. It should also be noted that the former Penal Code did not define “deadly weapon.”

      . See and cf. Tendler v. District of Columbia, 50 A.2d 263 (D.C.Mun.App.1946); Schmit v. Guidry, 204 So.2d 646 (La.App.1967).


author: PHILLIPS, Judge.

text:
    Mark DAVIS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51855.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.
    James F. Newth, Dallas, on appeal only, for appellant.

      Henry Wade, Dist. Atty., Steve Wilensky, Donald J. Driscoll and D. Brian Blessing, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

The offense is assault with intent to murder without malice; the punishment, three years.

In a per curiam opinion decided March 17, 1976, the appeal in this cause was dismissed because sentence was untimely pronounced. Appellant has been resentenced and the appeal is reinstated.

Although the sufficiency of the evidence is not challenged, a recitation of the facts is necessary in order to understand appellant’s contentions. Witness Brown testified that he and Bobbie Jean Wright were riding in Wright’s car on December 9, 1972. Brown offered to buy some gasoline and they proceeded to a service station. Appellant put gas in Wright’s car and Brown presented a credit card as payment. After Brown started to put the ticket in his billfold, he noticed a discrepancy in the amount of purchase. The ticket was imprinted by a machine at the top with 00750; however, the figures 172 55 were entered by hand on the bottom of the ticket next to the word Total. Brown stated he returned to the sales office to explain to appellant that a mistake had been made. Appellant said he had not made a mistake and told Brown to get out of there and pulled a pistol. Brown went across the street and called the police. He returned to the station and offered to pay cash. He said appellant refused the offer and told Brown not to tell him how to run his business. Brown called the police again. Upon returning to the service station, Brown asked another customer to look at the-ticket.- After the customer moved, appellant approached Brown and said he had told him to get' away from the station. Brown said appellant then pulled a pistol and shot him in the neck. Brown stated he did not look at the pump and did not know the number of gallons of gas that he had purchased or the amount of purchase. Brown said he did not swear or curse at appellant and did not approach him in a violent manner.

Wright testified she waited in the car after Brown purchased the gasoline. It appeared Brown and appellant were arguing, but she did not hear what was said. When she entered the sales office, she said Brown and appellant were discussing the $172.50. She stated the purchase was for $5.00 or $5.51 and that her car would not hold $7.50 worth of gas. She said Brown went to the Dairy Queen to call the police. She offered to pay appellant for the gas and he refused. Wright stated she tried to call Brown’s wife after Brown was shot, but appellant did not let her use the phone and appellant told her to get back or he would shoot her.

Witness Adger testified he was buying gasoline at the station at the time of the alleged offense. Brown asked Adger about the discrepancy on the ticket and Adger agreed that Brown would be charged with the figure at the bottom. He stated he did not hear Brown use abusive language or curse. Adger heard appellant say he didn’t want to hear any more and saw appellant shoot Brown. Adger did not see any weapons other than the pistol used by appellant. He stated appellant waved the pistol in Wright’s direction.

Appellant testified in his own behalf. He stated he had a third grade education and he could not read, but he could write his name and had been practicing figures and “I could make them out as best I could.” He said he was working at his brother’s service station the day of the offense and Brown purchased some gas from him. He stated the amount imprinted at the top of the ticket was the amount of purchase and he explained to Brown that was, the amount he would have to pay. He said Brown was abusive and kept calling him “Nigger”. Appellant called his brother, but he was not at home. Appellant said Brown threatened to kill him if appellant did not return the “money”. Appellant said he gave the ticket back to Brown because he did not want any trouble. Brown left and appellant said the girl [Wright] was cussing and telling appellant what Brown was going to do. About 45 minutes to an hour later Brown returned. Appellant testified he asked Brown why he came back and Brown said, “I come back to kill you.” Appellant stated he whirled around and shot Brown because he was afraid he would carry out the threat. Appellant said there were four more bullets in the gun and he could have shot Brown four more times. Appellant testified he gave Wright a dime to call an ambulance.

Appellant testified he had the gun because of a highjacking that occurred at the service station three weeks before the instant offense. Appellant’s brother, W. T. Davis, corroborated appellant’s testimony concerning the earlier highjacking and the amount of purchase as shown by the figure printed at the top of the ticket. Witness Davis stated the figure at the bottom indicated the amount of gas sold.

In his first ground of error appellant alleges he was improperly impeached at the guilt stage of the trial when the following occurred on cross examination:

“Q Now, Mr. Davis, on direct examination to the question your attorney was asking you, you told the man that you didn’t want any trouble, that you had been in trouble before. What did you mean by that?
A Sir, the first time I got in trouble, the warden in Arizona—
Q The who?
A The warden, he was the man over the state penitentiary, because he told me, he said, ‘You’re the onliest man that don’t have a scratch on your record. You need to be on the way to your family,’ and he got me the first job, and he’s the one that’s recommended me for the first job, and I know what it was, I don’t want to go back to the penitentiary.
[DEFENSE COUNSEL]: Just answer the questions and don’t say anything that is not responsive to the question.
THE WITNESS: Well, I thought—
Q [PROSECUTOR]: I asked you what kind of trouble had you been into, what did not mean by trouble before?
A I had been to the penitentiary for murder.
[DEFENSE COUNSEL]: Your Honor, I would like to preserve my exception on the motion. Will you let the record show that we object to this line of questioning?
THE COURT: The record shows that you objected to the question and answer. [DEFENSE COUNSEL]: Yes, sir.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Note our exception.
Q [PROSECUTOR]: You are telling about a sentence you received for not less than 13 nor more than 15 years in the Arizona State Penitentiary for second degree murder?
A Yes, sir.
Q And that’s the only trouble that you were referring to?
A What do you mean?
Q That’s the only trouble you have ever been in in the law?
A No, sir, you just told me awhile ago that I had been in trouble about my gun and things.
Q What do you mean by that.
A Well, I mean, I really don’t understand you when you say is that the onliest trouble you been into. That’s the first time I ever been to the penitentiary.
Q No further questions.”

Prior to this testimony a hearing was held outside the presence of the jury and it was shown appellant was convicted of second degree murder in Arizona in 1957. Appellant testified he was released in 1962. Appellant stated he was twice convicted in 1967 and 1971 in Dallas County for the misdemeanor offense of carrying a pistol, and in 1967 of misdemeanor driving while intoxicated. Certified copies of the judgment, sentence, affidavit, information and waiver of jury trial and plea of guilty for the three misdemeanor convictions were introduced at the hearing for the purposes of the record only.

In light of the adverse ruling at the close of the hearing outside the jury’s presence which preceded the testimony now complained of, appellant was not required to object further when the prior conviction was introduced before the jury. Harryman v. State, Tex.Cr.App., 522 S.W.2d 512.

Appellant contends the prior murder conviction was too remote to be used for impeachment since appellant was released from the Arizona Prison 12 years previous to the instant trial. We agree.

The question of remoteness of pri- or convictions is addressed largely to the discretion of the trial judge. Bustillos v. State, Tex.Cr.App., 464 S.W.2d 118. The tendency has been to uphold admission of a prior conviction if the period of time between release from prison and trial is less than 10 years. Penix v. State, Tex.Cr.App., 488 S.W.2d 86. However, the interval of time is not in itself the controlling factor and the facts of each case must determine if a prior conviction is too remote. Dillard v. State, 153 Tex.Cr. 134, 218 S.W.2d 476.

Among the factors to be considered are youthfulness of the accused at the time of the prior conviction, subsequent conduct as reflecting lack of reformation, the nature of the accusation and the facts and circumstances of the alleged offense, and the length and severity of the penalty assessed. Bustillos, supra; Dillard, supra.

Appellant was 55 at the time of the trial in October, 1974, and he was about 38 years of age at the time of the prior offense in Arizona. Appellant had not been convicted of any felonies or misdemeanors involving moral turpitude since his release from prison in 1962. The fact that appellant shot Brown was not in dispute; the issue at trial was who provoked the difficulty. Although the jury did not believe appellant’s version of the incident, they found him guilty of assault with intent to murder without malice and not with malice as charged in the indictment. The jury was also charged on the lesser included offense of aggravated assault and the failure to find appellant guilty of this offense indicates the jury found the assault was committed with the intent to kill. The court assessed the maximum punishment. In light of these circumstances, we cannot say the prior murder conviction did not affect the jury’s verdict.

The State argues the prior murder conviction is not too remote because 10 years elapsed between appellant’s release from prison and the alleged offense. We cannot agree. The date of trial is the controlling time for computation because the purpose of admitting prior convictions at the guilt stage of the trial is to allow possible impeachment. In the dissenting opinion on original submission in McClendon v. State, Tex.Cr.App., 509 S.W.2d 851, 854, it was said:

“The rule of remoteness is based upon reason. An accused should not be impeached by convictions which occurred so far in the past that they do not shed any light on his credibility at the time of trial.”

The State also argues appellant’s prior murder conviction is admissible because it involved a crime of the same nature as the instant offense and the three subsequent misdemeanor offenses evidence a lack of reformation. Driving while intoxicated and carrying a pistol are misdemeanor offenses not involving moral turpitude. Gibbs v. State, Tex.Cr.App., 385 S.W.2d 258; Dowdy v. State, Tex.Cr.App., 385 S.W.2d 678. As this Court stated in McClendon, supra, at page 855:

“A conviction of a misdemeanor which does not involve moral turpitude has not been considered as evidence of a lack of reformation. See Livingston v. State, [Tex.Cr.App.] 421 S.W.2d 108; Blessett v. State, 168 Tex.Cr.R. 517, 329 S.W.2d 434.”

In McClendon, a murder conviction was reversed for improper admission of a prior murder conviction where 12 years and 11 months had elapsed from the defendant’s release from prison and the trial. The fact that appellant was tried for a crime of the same nature cannot revitalize the remote prior conviction.

The State contends appellant’s testimony on direct examination rendered the prior conviction admissible. Appellant was recounting his version of the alleged offense as follows:

“A But after I tried to explain it to him [complainant] I couldn’t explain it to him, the white lady over across the street, at the Dairy Queen, they heard him over there cussing and screaming, and he had a big black hand knife, and they come from the Dairy Queen, they come over there to see what was the trouble. Okay, the lady that owned the wig shop over there, that’s where I was trying to find out this morning, but I didn’t have a chance to get her, she come over there, the man was raising so much sand over there, cussing and going on, so I told the gentleman, T tell you what I am going to do, Mister.’ I mean, I been in trouble, Your Honor.” (Emphasis added.)

The State contends the question which elicited testimony of the prior conviction was merely a clarification of this previous testimony. Appellant’s volunteered comment, which was not responsive, was ambiguous. It is not clear from this testimony that appellant was referring to this prior conviction, and the matter was not pursued. Cf. Rascon v. State, Tex.Cr.App., 496 S.W.2d 99. We do not agree that appellant’s reference to being in trouble opened the door to admission of the prior murder conviction.

We find as we did in McClendon that the admission of the prior murder conviction where approximately 12 years had elapsed since appellant’s release from prison was reversible error.

In the event of a retrial, we note that the court charged the jury on the law of assault with intent to murder with malice and without malice and on the law of aggravated assault. The law of aggravated assault and assault with intent to murder with malice was then applied to the facts. Although an abstract charge defining murder without malice was given, the law of assault with intent to murder without malice was not applied to the facts. Since this question may not arise in a subsequent trial, we express no opinion as to whether this is fundamental error which would require reversal. Cf. Perez v. State, Tex.Cr.App., 537 S.W.2d 455; Harris v. State, Tex.Cr. App., 522 S.W.2d 199.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge. ODOM, Judge

text:
    James Lee PARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 52537.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.

      John Paul Davis, Beaumont, on appeal only, for appellant.
    Tom Hanna, Dist. Atty., and Paul E. Ña-man, Asst. Crim. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. Appellant pled guilty before the court on August 10, 1972, to the offense of felony theft, and punishment was assessed at six (6) years. The imposition of the sentence was suspended, and appellant was placed on probation subject to certain conditions. Among the conditions appellant was to:

“(a) Commit no offense against the laws of this State or any other State or the United States.”

A motion to revoke probation was filed on October 22,1974, alleging that he violated his probation in that he unlawfully exercised control over and obtained a four-wheel trailer, which had a value of more than two hundred dollars ($200) but less than ten thousand dollars ($10,000), on June 9, 1974.

A hearing was conducted on the motion to revoke probation on March 7, 1975, and at the conclusion of the hearing the court found that appellant violated his terms of probation as set out in the motion to revoke probation.

No briefs were filed in the trial court by either the appellant or the State in accordance with Article 40.09, Vernon’s Ann.C.C.P. On the day this cause was set for oral argument, the appellant’s retained counsel filed a brief in this court urging that the trial court abused its discretion by requiring the appellant to conduct his own defense at the revocation hearing without the benefit of retained or appointed counsel in violation of his right to counsel under the Sixth Amendment, United States Constitution. See also Article I, Section 10, Texas Constitution. He requests that we consider the same “in the interest of justice.” See Article 40.09, Sec. 13, Vernon’s Ann.C.C.P. The State’s brief was filed in this court on the same date.

We shall consider appellant’s contention.

The appellate record is poorly assembled and not always in chronological order. It is with some difficulty that we decipher what has transpired.

It appears that the revocation motion was filed on October 22, 1974, and appellant posted bond on November 12, 1974. On January 6, 1975, the record reflects a colloquy between the court, the appellant and his counsel, Terry Doyle. Counsel stated he had been employed on the case alleged as the basis for the revocation, but at the time of employment didn’t know about the fact appellant was on probation; that he had not been paid “on the main case,” much less “this case.” Counsel then stated to the court he would follow the court’s instructions. Appellant stated he wanted Doyle as counsel and would satisfy his obligation to counsel. The cause was passed to February 24, 1975. On that date in the morning appellant appeared and the record reflects the following:

“DEFENDANT: I have a statement from Coca Cola. I have an attorney — Mr. Morrison.
“THE COURT: Floyd Morrison?
“DEFENDANT: Yes, sir.
“THE COURT: Where is Mr. Morrison?
“DEFENDANT: I don’t know. I just got through calling him.”

The court then passed the case to 1:30 p. m., instructing the appellant to have his counsel present at that time. That afternoon the record reflects the following:

“DEFENDANT: . . . My lawyer tried to get you.
“THE COURT: Who is coming?
“DEFENDANT: Floyd.
“THE COURT: Mr. Morrison?
“DEFENDANT: Yes, Sir.
“THE COURT: What time is he supposed to be here?
“DEFENDANT: He called his secretary and said he would be a little late.”

The court told the appellant to have a seat and not leave the courthouse without permission, and also stated, “You might tell Mr. Morrison that if he’s not here within an hour he will have to see the Sheriff, too.” The court then set the hearing for March 7, 1975.

On March 7, 1975, appellant pled “untrue” to the revocation motion. The record then reflects:

“THE COURT: Do you have a lawyer to represent you?
“MR. PARKER: Yes, sir, that is what I was doing today. It’s just taken so long. I was waiting for Mr. Morris. He still hasn’t called me back.
“MR. MOSES (Prosecutor): Who?
“MR. PARKER: Morris.
“THE COURT: Well, you can step outside, but you come right back; because we are going to start you (sic) case just as soon as I get through with these other two cases here. Do you understand that, Mr. Parker?
“MR. PARKER: Yes, sir.
“THE COURT: We are going to start whether your lawyer is here or not.
“MR. PARKER: Okay, sir.”

A short time later the case was again called and the record reflects:

“THE COURT: ... Mr. Parker, you are not represented by an attorney at this time. What is the situation about your attorney?
“MR. PARKER: I just talked to him and he said he wasn’t accepting anything.
“THE COURT: Who did you talk to?
“MR. PARKER: Morris.
“THE COURT: Well, Mr. Morris is not here. You can have a seat. The Court has found previously that the defendant is not entitled to a Court appointed attorney. And the case will proceed.”

The appellant, representing himself, did not invoke the rule, did not cross-examine two of the State’s three witnesses and asked only two questions of the complaining witness. Testifying in his own behalf, appellant stated he had a bill of sale for the trailer allegedly stolen and his lawyer had the bill of sale. Appellant called Billy Ray Thomas as a brief witness to the sale, and then stated to the court he had other witnesses who were not present, naming them, who had not been subpoenaed. The court then revoked probation.

At the time set for sentencing (March 21, 1975), the appellant appeared with counsel, Kermit Morrison, Jr. At the time appellant’s motion for new trial based on lack of counsel at the revocation hearing was overruled without the court hearing evidence. His other motions were also overruled. Sentence was imposed and notice of appeal was given and appellant was continued on bail. Counsel verified he would serve as counsel on appeal.

At the hearing the court inquired of appellant about the allegations of motion that counsel had not been paid as agreed, and the appellant replied, “We was on strike,” and stated that he didn’t have any money to “amount to anything” but that he sold his car to pay counsel, and he would like for Morrison to remain his attorney. When the court determined that counsel had “gotten off” a $3,000 bond and appellant had then made a $10,000 bond, the court permitted counsel to withdraw and instructed appellant to employ other counsel. The record was not approved by the court until March 30, 1976. On May 8, 1976, the appellant made a $25,000 bond on appeal.

As earlier noted, appellant did not retain other counsel until June 17, 1976, after the record had reached this court and was filed May 27, 1976.

On July 2, 1975, notice of completion of the record was given to the parties.

On July 17,1975, appellant’s counsel filed a motion to withdraw from the case dated June 25, 1975, alleging appellant had breached the employment contract in that he had not paid all of the fee for perfecting the appeal. Apparently without a hearing the court entered an order finding that appellant was not indigent but ordering counsel to remain as counsel of record until the appellant had employed other counsel.

On September 12, 1975, the court conducted a hearing on counsel’s motion to withdraw.

The Sixth Amendment, United States Constitution, provides that in all criminal prosecutions the accused shall have the assistance of counsel for his defense. Article I, Sec. 10, Texas Constitution, also provides that “[i]n all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both . . . .” In Crawford v. State, 435 S.W.2d 148, 151 (Tex.Cr.App.1968), the court observed, “The revocation proceedings cannot be isolated from the context of the criminal process.” Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971), held that revocation is a “criminal prosecution” within Article I, Sec. 10, Texas Constitution. Article 42.12, Vernon’s Ann.C.C.P., requires the assistance of counsel in such hearing. See Ex parte Williams, 414 S.W.2d 472 (Tex.Cr.App.1967). It appears clear that a probationer is entitled to counsel, either retained or appointed, at the time of the revocation hearing unless he had affirmatively waived the same. See Article 42.12, supra; n. 31.6, and cases there cited; Crawford v. State, supra; Eiland v. State, 437 S.W.2d 551 (Tex.Cr.App.1969); Ex parte Fletcher, 442 S.W.2d 705 (Tex.Cr.App.1969); Ex parte Fuller, 435 S.W.2d 515 (Tex.Cr.App.1969); Ex parte Buffington, 439 S.W.2d 345 (Tex.Cr.App.1969); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).

The State urges that the appellant was not indigent and therefore was not entitled to appointed counsel. If this be so, the question remains whether appellant waived his right to retained counsel. A defendant may waive his right to counsel if such waiver is made voluntarily and knowingly of the consequences thereof. See Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App. 1975); Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973); Smith v. State, 513 S.W.2d 586 (Tex.Cr.App.1974); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976).

Waiver may be defined as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver of the right to counsel will not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962); Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970); Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975); Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976). A waiver will not be “lightly inferred,” and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, supra. And a heavy burden rests upon the prosecution to demonstrate an intelligent, voluntary and knowing waiver of constitutional rights, particularly as applied to the right to retained or appointed counsel. Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court wrote:

“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”

In the recent case of Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976), the petitioners were charged with the misdemeanor offense of aggravated assault. Their retained counsel sought and obtained several continuances since he was a member of the Legislature. See Article 2168a, Vernon’s Ann.C.S., as amended in 1973. At the conclusion of the legislative session, the cases were set for trial, but on the date of trial the petitioners appeared but their attorney did not and they could not locate him. They requested “a couple of days” to secure another lawyer. This request was denied, but the court offered to appoint counsel, which offer was rejected, the petitioners stating they wanted their own retained counsel. The 18 and 21 year old petitioners were then put to trial acting as their own counsel. They did not participate in the jury voir dire, the cross-examination was minimal with their non-lawyer father sometimes asking questions. They presented no evidence.

This court in Herrin concluded that the petitioners had made no knowing, intelligent and voluntary waiver of their right to counsel merely because their trial counsel had failed to appear on the date of the trial without fault of the petitioners. See also Baker v. State, supra.

In the instant case the appellant first appears before the court with retained counsel, Terry Doyle, who had not been paid. On the subsequent setting, appellant stated his attorney was Floyd Morrison, who was not present, although appellant stated he had contacted the lawyer. On the date of the revocation hearing the appellant appeared and stated his counsel was “Mr. Morris,” who was not present. The appellant stated he called “Mr. Morris,” who stated “he wouldn’t accept anything,” the meaning of which is not clear. The record does not show that the lawyer was contacted by the court, nor was it established then or later why such lawyer refused to appear. It was not established that the failure of “Mr. Morris” to appear was the fault of the appellant.

It is true that the right of an accused to represent himself or to select his own counsel cannot be manipulated so as to obstruct orderly procedure in the courts or to interfere with the fair administration of justice. Thompson v. State, 447 S.W.2d 920 (Tex.Cr.App.1969); Estrada v. State, 406 S.W.2d 448 (Tex.Cr.App.1966). See also Webb v. State, supra. If this record clearly demonstrated that appellant was financially able to hire counsel and used his right to counsel in such a way to keep postponing his revocation hearing, a different situation would have been presented. The record is not sufficiently developed to show that appellant manipulated his right to counsel so as to obstruct orderly procedure, etc.

We cannot conclude from the record before us that the appellant made a knowing, intelligent and voluntary waiver of his right to counsel. See Ex parte Herrin, supra.

Accordingly, the order revoking probation is reversed and the cause is remanded.

ODOM, Judge

(Dissenting).

The majority are of the opinion that “The record is not sufficiently developed to show that appellant manipulated his right to counsel so as to obstruct orderly procedure, etc.” I am of the opinion that the record is sufficiently developed to show that appellant did manipulate his right to counsel in such a manner as to obstruct the orderly procedure in the trial court and to interfere with the fair administration of justice in the hearing and speedy disposition of the motion to revoke probation filed against him.

I therefore dissent.

ROBERTS, J., joins in this dissent.

      . The State also filed a brief in this court on the same date. In oral argument counsel informed this court that he was not retained until June 17, 1976, too late for the timely filing of briefs in the trial court in accordance with Article 40.09, Vernon’s Ann.C.C.P., since the record was received in this court on May 27, 1976, and the trial court had lost jurisdiction of the cause.

      . It appears that appellant had been released on bail on March 10, 1975, with his counsel (Kermit Morrison, Jr.) as one of the sureties.

      . It is not revealed by this record just why the bond was continually raised.

      .The motion stated counsel was willing to return the unearned portion of the fee paid.

      . The cases cited by the State, Clark v. State, 417 S.W.2d 402 (Tex.Cr.App.1967); McClendon v. State, 407 S.W.2d 778 (Tex.Cr.App.1966); Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App.1968), all involved misdemeanor cases and are distinguishable on the facts.

      . After the record was filed in this court and shortly before oral argument on July 14, 1976, there was filed in this court on July 9, 1976, “Findings of Facts and Conclusions of Law” by the trial court in which the trial court stated that not all hearings on the issue of indigency were recorded, and revealed there was one unrecorded hearing involving sworn testimony showing appellant was not indigent. Such “findings” point to several places in the record where the trial court stated it had determined earlier that the appellant was not indigent, but the record on such issue is meager or non-existent. It is difficult to understand why any hearing involving sworn testimony in a felony case would not be recorded. Trial courts should never forget that this court must pass upon the case on appeal upon the record presented.

      . Whether "Mr. Morris” was a different attorney from Floyd Morrison or Kermit Morrison, Jr., who subsequently represented the appellant, is not revealed by this record.