author: SAM D. JOHNSON, Justice.

text:
    MCDONALD TRANSIT, INC., Petitioner, v. Patricia MOORE, Respondent.
    No. B-7250.
    Supreme Court of Texas.
    April 26, 1978.

      Cantey, Hanger, Gooch, Munn & Collins, William L. Hughes, Jr., Fort Worth, for petitioner.
    Herrick & Waltrip, Bill Waltrip, Fort Worth, for respondent.
   SAM D. JOHNSON, Justice.

This case presents the question of the proper submission of an instruction on sudden emergency. Patricia Moore brought suit against McDonald Transit, Inc. (Citran) for personal injuries sustained while she was a passenger on one of its buses. The trial court, based on jury answers to special issues, rendered a take-nothing judgment against Mrs. Moore. The court of civil appeals reversed and remanded, holding that the submission of an accompanying instruction on sudden emergency constituted a comment on the weight of the evidence in violation of Rule 277 of the Texas Rules of Civil Procedure. 559 S.W.2d 105. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Mrs. Moore boarded one of McDonald Transit’s buses and was proceeding down the aisle to take a seat while the bus began to move forward. As the bus was proceeding forward, it stopped abruptly throwing Mrs. Moore to the front of the bus where she fell in the aisle alongside the driver’s seat. The driver testified he stopped abruptly in order to avoid a collision with a passenger car which had suddenly changed lanes in front of the bus. Mrs. Moore was injured as a result of her fall and sought damages against McDonald Transit.

The trial court submitted the following instruction on sudden emergency:

“When a person is confronted by an emergency arising suddenly and unexpectedly, not proximately caused by any negligence on his part, and which to a reasonable person requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or a failure to use a high degree of care, if, after such emergency arises, he acts as a very cautious, competent, and prudent person would have acted under the same or similar circumstances.”

The court of civil appeals held that such instruction constituted a comment on the weight of the evidence. The court of civil appeals reasoned that whether or not there existed a condition of sudden emergency was a question of fact in the instant case, but the wording of the instruction prefaced by the word “when” conveyed to the jury that it was the opinion of the court that such an emergency condition existed. Accordingly, the court of civil appeals held that the form of the instruction on sudden emergency emphasized the Transit Company’s contentions in the trial court and constituted a comment on the weight of the evidence.

McDonald Transit argues that the court of civil appeals erred in holding that the instruction on sudden emergency constituted reversible error as a comment on the weight of the evidence: The Transit Company asserts that the instruction is a full and correct statement of the law of sudden emergency and that the trial court was correct in submitting such instruction to the jury. The Transit Company points out that the instruction is taken from Section 3.07 of the Texas Pattern Jury Charges, State Bar of Texas, Volume 1, except for the incorporation into the instruction of the higher standard of care applicable to a common carrier.

We do not agree with the court of civil appeals’ holding that the wording of the instruction on sudden emergency assumes the crucial question of the sudden emergency and is, therefore, a comment on the weight of the evidence. We hold that such instruction was in correct form as submitted to the jury. The theory of sudden emergency was properly submitted as an instruction, rather than an issue. Under Rule 277 inferential rebuttal issues are not to be submitted, but such theories may be submitted as explanatory instructions or definitions. In Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971), this court held that sudden emergency should be submitted to the jury as an explanatory instruction or definition, rather than in a special issue. Accordingly, a party is entitled to an instruction on sudden emergency if such instruction in proper form is submitted to the court in accordance with Rule 273. Under Rule 277 it is mandatory that an instruction not be worded so as to indicate the opinion of the trial judge as to the verity or accuracy of the facts in inquiry. Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.).

The employment of the word “when” in the instruction does not indicate a statement by the judge as to the existence of a sudden emergency. In common parlance and ordinary usage the word “when” is frequently employed as an equivalent to the word “if.” Further, Black's Law Dictionary defines the word “when” as meaning “[i]n the event that, on condition that, in virtue of the circumstances that.” Black’s Law Dictionary 1767 (4th ed. 1968). Similarly, Webster’s New International Dictionary defines the word “when” as a term that establishes a conditional relationship between various statements. Webster’s New International Dictionary 2910 (2d ed. 1952). Consequently, the word “when” in the court’s instruction does not denote a fact with certainty such as to convey the court’s opinion on sudden emergency. Rather, the word “when” is correctly, used to show that sudden emergency is a condition which may be found possibly to exist. This court specifically approves the definition of sudden emergency used in the Texas Pattern Jury Charges and the adaptation of such instruction as utilized by the trial court in the instant ease.

Accordingly, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . Special Issue No. 1A asked if the bus driver was negligent in starting the bus before Mrs. Moore was seated. Special Issue No. 2A asked if the driver was negligent in failing to warn Mrs. Moore of the impending stop. The jury answered both issues negatively. In Special Issue No. 3 the jury found that Mrs. Moore had incurred damages in the amount of $22,500 for past and future pain and mental anguish.


source: Caselaw Access Project

author: ODOM, Judge. DOUGLAS, Judge, DOUGLAS, Judge. ONION, Presiding Judge, ODOM, Judge,

license: Public Domain

text:
    Ex parte Wayne D. SIMS.
    No. 55139.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 23, 1977.
    Opinion On State’s Motion For Rehearing Feb. 15, 1978.

      Carol S. Vance, Dist. Atty. and Clyde' F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order entered in a habeas corpus proceeding.

Appellant is charged by indictment with aggravated robbery in Cause Number 252482 in the 176th District Court of Harris County. After the hearing bail was reduced from $70,000 to $40,000, and notice of appeal was given. The record is before us without a transcription of the court reporter’s notes.

The preparation of the record in a habeas corpus appeal is governed by Art. 44.34, V.A.C.C.P., which provides:

“When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge.” (Emphasis added.)

The statute is mandatory, and requires that the testimony offered at the hearing be included in the record on appeal. The record before us reflects that the hearing was held and judgment was entered on May 11, 1977. The record was certified by the clerk on May 25, but it does not include the testimony offered at the hearing. Neither does the record show any request to this Court for an extension of time as authorized by the statute set out above. As a result, we are unable to determine the appeal. See Art. 44.36, V.A.C.C.P.

Accordingly, the appeal must be abated in order for the clerk of the trial court to prepare a complete record as required by Art. 44.34, supra.

Many earlier habeas corpus appeals were affirmed when no transcription of the court reporter’s notes (or statement of facts) was in the record. Those cases, however, cited no statutory authority for placing the burden on the petitioner to submit such material for inclusion in the record, and Article 44.34, supra (or the like provision in earlier codes of criminal procedure), was not mentioned. Accordingly, those cases are not controlling authority on the proper interpretation of Article 44.34, and we expressly overrule those cases, which include: .Ex parte Kindell, Tex.Cr.App., 415 S.W.2d 922; Ex parte Moore, Tex.Cr.App., 318 S.W.2d 667; Ex parte Lewis, Tex.Cr.App., 263 S.W.2d 557; Ex parte Anderson, Tex.Cr.App., 243 S.W.2d 169; Ex parte Matthews, Tex.Cr.App., 225 S.W.2d 843; Ex parte Stone, 152 Tex.Cr.R. 351, 214 S.W.2d 127; Ex parte Canavan, 147 Tex.Cr.R. 493, 182 S.W.2d 818; Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860; Ex parte Newsom, 136 Tex.Cr.R. 239,124 S.W.2d 860; Ex parte Horn, Tex.Cr.App., 97 S.W.2d 698; Ex parte Adams, Tex.Cr.App., 13 S.W.2d 842; Ex parte Williams, 84 Tex.Cr.R. 131, 206 S.W. 195; Ex parte Teague, Tex.Cr.App., 145 S.W. 620; Ex parte Northern, 63 Tex.Cr.R. 275, 140 S.W. 95; Ex parte Naill, Tex.Cr.App., 127 S.W. 1031.

Turning from the above overruled cases, which neither state reasoning nor cite authority for affirming rather than abating a habeas corpus appeal in the absence of a statement of facts, we find an earlier case in which a related defect was held disposi-tive. In Ex parte Malone, 35 Tex.Cr.R. 297, 31 S.W. 665, 33 S.W. 360, the habeas corpus judgment was affirmed on appeal without consideration of the purported statement of facts in that record because the court found it was not prepared in compliance with the rules then in force. Although Judge Henderson dissented on rehearing, 33 S.W. at 361, regarding the proper preparation of the statement of facts, he agreed that the failure to comply with that procedure required affirmance, and he concurred in the disposition of the case. The authorities cited on original submission for disposition in the absence of a proper statement of facts were Hess v. State, 30 Tex.App. 477, 17 S.W. 1099, and Morris v. State, Tex.Cr.App., 29 S.W. 780, both of which were direct appeals from a judgment of conviction. In Hess the court stated that diligence in preparing the statement of facts was not shown to have been exercised by the defendant or his counsel. But if, as in habeas corpus appeals under Art. 44.34, supra, and Art. 881, Texas Code of Criminal Procedure (1879), then in force, the duty to prepare the record for appeal, “together with all the testimony offered,” is not on the defendant, but on the clerk or judge, then no want of diligence may be attributed to the defendant, and he may not be denied a full review on appeal for some third party’s failure to act. Thus, the rule governing direct appeals does not apply, and the decisions in Hess and Morris, applying to direct appeals, do not apply in a habeas corpus appeal.

In Ex parte Isaacs, 35 Tex.Cr.R. 80, 31 S.W. 641, the Court also affirmed a habeas corpus appeal when presented with a purported statement of facts that was not properly prepared. There, as in Malone, supra, decisions in cases on direct appeal were cited. Furthermore, in one of those direct appeals, Butler v. State, 33 Tex.Cr.R. 232, 26 S.W. 201, the Court considered the statement of facts in spite of the error in its preparation and reversed the conviction, announcing, “Hereafter such violations of the rules [for preparing the statement of facts] will simply be met by this court’s refusing to consider the statement of facts for any purpose.”

It thus appears from Butler, supra, that the bar to consideration of an improperly prepared statement of facts in a direct appeal was not considered jurisdictional, but was announced as a prospective rule, created by the Court in its discretion, to govern consideration of future appeals brought before it.

Our examination of these earlier habeas corpus appeals; i.e., Malone and Isaacs, supra, convinces us that they, taken with their authorities, do not support affirmance of the instant appeal in the absence of a transcription of the court reporter’s notes. We believe the Court in Ex parte Kramer, 19 Tex.App. 123, correctly noted the distinction between habeas corpus appeals and others upon which we base today’s decision:

“[W]e are of the opinion that the rules governing the forwarding of transcripts to this court, on appeals in other criminal actions, do not govern appeals in habeas corpus cases. Appeals in habeas corpus cases are separately and specially provided for and regulated, and no particular mode is prescribed for bringing the transcripts in such cases before this court. (Code Crim.Proc., art. 881.) [Now, Art. 44.34, supra.]”

Finally, if any doubts remain about the soundness of the distinction we draw between habeas corpus appeals and appeals brought under Art. 40.09, V.A.C.C.P., from a judgment of conviction, it should be noted that Art. 44.34, supra, was amended in 1973 by the addition of the second sentence, to-wit:

“This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals.”

This provision alone demonstrates the incompatibility of the habeas corpus appeal with the procedures set out in Art. 40.09, supra.

For the reasons set out at the beginning of this opinion, the appeal is abated and the clerk of the trial court is directed to prepare a complete record as required by Art. 44.34, supra, and to send it to this Court within fifteen days (unless an extension of time is applied for and granted under the terms of the statute and the rules of this Court) in order that we may decide the case.

It is so ordered.

DOUGLAS, Judge,

dissenting.

Overruling many cases which held that the judgment in a habeas corpus proceeding must be affirmed in the absence of a statement of facts, the majority abates this appeal because there was no compliance with Article 44.34, V.A.C.C.P. The rule of those cases was considered to be so well established that no reasoning or citation of statutory authority was required. See e.g., Ex parte Naill, 127 S.W. 1031 (Tex.Cr.App. 1910); Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860 (1939); Ex parte Moore, 318 S.W.2d 667 (Tex.Cr.App.1958); and Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). Their implicit rationale, however, was that the burden was on petitioner to submit the statement of facts for inclusion in the record on appeal and that Article 44.34(or its equivalent) was waived if he failed to discharge that burden. The majority in the instant case repudiates this rationale without adequate justification in law, reason or policy.

Article 40.09, V.A.C.C.P., governs appeals from judgments of conviction and thus does not directly control this ease. However, since that article and Article 44.34 both relate to the subject of appeals, they are governed by one spirit and policy and are intended to be consistent and harmonious in their several parts and provisions.

Article 40.09 places the burden upon defendant to obtain a transcription of the reporter’s notes for inclusion in the record. Nothing in policy or the language of Article 44.34supports the view that the Legislature intended to remove this burden from petitioner in habeas corpus appeals. Under these circumstances we should reaffirm the rule which the majority rejects today.

That the term “shall” is used in Article 44.34does not compel the conclusion that such provision is mandatory. This term is also used in Article 19.01, V.A.C.C.P., governing the appointment of jury commissioners, but we held in Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975), that that article is directory and not mandatory.

Likewise, we have consistently held that Article 20.20, V.A.C.C.P., is directory and not mandatory. Jenkins v. State, 468 S.W.2d 432 (Tex.Cr.App.1971); Cotton v. State, 500 S.W.2d 482 (Tex.Cr.App.1973). That article provides that the names of witnesses on whose testimony an indictment is founded shall be endorsed thereon.

Whether Article 44.34 is mandatory or directory, petitioner may waive compliance with the provision. Article 1.14, V.A.C. C.P., provides as follows:

“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.”

Article 1, Section 10 of the Texas Constitution, and Article 1.25, V.A.C.C.P., grant an accused the right to be confronted with the witnesses against him. But even though both provisions state that the accused “shall be confronted”, it is fundamental that the right may be waived. Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948); Hernandez v. State, 378 S.W.2d 311 (Tex.Cr.App.1964); Salas v. State, 385 S.W.2d 859 (Tex.Cr.App.1965); Rushing v. State, 476 S.W.2d 675 (Tex.Cr.App.1972); Jones v. State, 501 S.W.2d 670 (Tex.Cr.App.1973); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App.1977).

Article 26.01, V.A.C.C.P., provides that there shall be an arraignment in all felony cases, after indictment, and all misdemean- or cases punishable by imprisonment. It is well established that the right to an arraignment may be waived notwithstanding the fact that the statute is mandatory. Eckels v. State, 153 Tex.Cr.R. 402, 220 S.W.2d 175 (1949); Vanwright v. State, 454 S.W.2d 406 (Tex.Cr.App.1970); Richardson v. State, 508 S.W.2d 380 (Tex.Cr.App.1974).

Article 38.23, V.A.C.C.P., provides in part:

“No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. . (Emphasis added)

Although this rule regarding illegally obtained evidence is mandatory, complaints regarding the admission of such evidence may be waived. LeBlanc v. State, 424 S.W.2d 434 (Tex.Cr.App.1968); Ansley v. State, 468 S.W.2d 862 (Tex.Cr.App.1971); Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974); McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976).

Many other examples of waiver of mandatory provisions could be given. Even constitutional rights may be waived by failing to take certain actions or by failing to object. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976).

From the foregoing it is clear that petitioner may waive the requirement of Article 44.34 that the statement of facts be included in the record on appeal.

What the majority overlooks is that in many cases a petitioner in a habeas corpus proceeding, particularly in extradition matters, does not want a transcription of the court reporter’s notes. All he seeks is delay.

Today’s erroneous decision will add additional burdens to the trial courts, the court reporters, the clerks’ offices, and to this Court. It is difficult to understand how all of the judges who have sat on this Court since it was created have been wrong in the thousands of cases which have been decided to the contrary.

Article 1.14, supra, which provides that an accused may waive a right such as is in issue in the instant case, has not been repealed. There was a waiver in this case. The judgment should be affirmed.

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

OPINION ON STATE’S MOTION FOR REHEARING

Before the court en banc.

DOUGLAS, Judge.

On original submission, when this Court consisted of five judges, this cause was reversed and remanded by three judges because there was no transcription of the court reporter’s notes in the record even though none was requested. This writer, joined by Presiding Judge Onion, dissented. Now a majority of the Court which consists of nine agree that the judgment should be affirmed. We hold, as we have consistently done before the majority opinion on original submission was written, that in a habeas corpus proceeding the judgment will be affirmed absent a statement of facts or bills of exception where nothing has been presented for review.

The State’s motion for rehearing is granted. The judgment is now affirmed.

VOLLERS, J., not participating.

ONION, Presiding Judge,

For the reasons set forth in the concurring opinion in Ex parte Henry Henderson, Jr., 565 S.W.2d 50 (Tex.Cr.App. # 57,115, this day decided), I agree that the State’s Motion for Rehearing should be granted and the judgment be affirmed.

ODOM, Judge,

dissenting.

I adhere to the position held by the majority on original submission of this case. The language of the statute (Art. 44.34, V.A.C.C.P.) is clear and the purpose is speedy disposition of habeas corpus cases. The new majority violate the mandate of the legislature and frustrate its purpose. See Ex parte Henderson, 565 S.W.2d 50 (No. 57,115), dissenting opinion.

The majority in this case on original submission described the absence of authority for the position taken by the new majority, and pointed out when and how the jurisprudence first went astray on this matter. “A man should never be ashamed to (admit) he has been in the wrong, which is but saying, in other words, that he is wiser today than he was yesterday.” (Attributed to Alexander Pope.) The wrong rulings in the past are not adequate justification for continuing that wrong today. I dissent to the majority’s return to a wrong once righted.

ROBERTS and PHILLIPS, JJ., join this opinion.

      . See Art. 44.33, V.A.C.C.P., Rules of the Court of Criminal Appeals, Rule 13. Cf. Art. 40.-09(16), V.A.C.C.P.

      . Contrast with the rule in other appeals, Art. 40.09(1) and (5), V.A.C.C.P.

      . See Ex parte Henderson, 565 S.W.2d 50 (No. 57,115, this day decided).


author: DOUGLAS, Judge. ONION, Presiding Judge, ODOM, Judge, ODOM, Judge.

text:
    Ex parte Henry HENDERSON, Jr.
    No. 57115.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 15, 1978.
    Opinion on Appellant’s Motion for Rehearing April 26, 1978.

      Douglas H. Parks, Dallas, for appellant.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order in a habeas corpus proceeding where a reduction of bail pending appeal was sought.

The dissent would hold that Article 44.34, V.A.C.C.P., requires that a transcription of the court reporter’s notes must be made a part of the record even though it is not requested by an appellant.

Article 44.34 provides:

“When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge.”

Apparently the dissent would require the trial court to have such a transcription prepared even though a wealthy petitioner did not want or request it.

The cases under Article 44.34 and its predecessors have uniformly held that absent a transcription of the court reporter’s notes or a statement of facts a cause will be affirmed. See e. g. Ex parte Naill, 127 S.W. 1031 (Tex.Cr.App.1910); Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860 (1939); Ex parte Moore, 318 S.W.2d 667 (Tex.Cr.App.1958); and Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). There is no reason to change the rule.

The implicit rationale of those cases was that the burden was on an appellant or petitioner to request such notes to be placed in the record or the right to such transcription was waived.

Whether Article 44.34 is mandatory or directory, petitioner may waive compliance with the provision. Article 1.14, V.A. C.C.P., provides as follows:

“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.”

Even if we be wrong in the construction of Article 44.34, the rule that we follow today has been the procedure for many years. There is little chance, if any, for one to be injured or an injustice be done by the well-established rule. All one has to do to secure the transcription of the court reporter’s notes in his case is to ask for it and, if he is able to do so, pay the costs.

Many court reporters are having trouble preparing records in the time prescribed by law. We will not add to that burden when there is no good reason for it.

For the above reasons, the judgment is affirmed.

ONION, Presiding Judge,

concurring.

This appeal is from an order entered in a habeas corpus proceeding refusing to lower the bail pending appeal from four felony convictions.

Bail pending appeal was set at $10,000 in each case. On November 22,1977 appellant filed his application for writ of habeas corpus seeking a reduction of bail. On the same date the district court conducted a hearing on said application, and having heard the evidence presented, entered an order denying the reduction of bail. Notice of appeal was given. Subsequently the record, sans a transcription of the court reporter’s notes (statement of facts), was approved by the trial court noting that no objection was made to said record. Thus, the appellate record before us consists of a clerk’s transcript without a statement of facts and without briefs by either the appellant or the State. No contention on appeal has been advanced.

It has long been held by this court in appeals from habeas corpus proceedings (including the refusal to reduce bail) that in the absence of a statement of facts nothing is presented for review. In accordance with such cases, this judgment in this appeal should be affirmed.

It was not until the majority opinion on original submission in Ex parte Sims, 565 S.W.2d 45 (Tex.Cr.App. # 55,139,11/23/77) (now on rehearing), that there was any indication that any other result would be reached. There the majority, although the contention was not raised by either party, interpreted Article 44.34, V.A.C.C.P., as amended as requiring the clerk to prepare a complete record including the statement of facts, whether requested by the appellant or not, and without regard to whether the appellant was indigent or not. The majority held that an appellate record in a habeas corpus proceeding will call for the abatement of the appeal rather than an affirmance.

It is interesting to trace the history of Article 44.34, supra, and its predecessors back to at least 1879.

Article 881, V.A.C.C.P. (1879), provided:

“When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a transcript of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the court of appeals for revision. This transcript, when the proceeding takes place before a court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation the transcript may be prepared by any person under the direction of the judge and certified by such judge.”

Said Article 881 became Article 916, V.A. C.C.P., in 1895 and later said Article 916 became Article 950, V.A.C.C.P., in 1911 and said Article 950 became Article 857, V.A.C. C.P., in 1925, all without change.

In 1965 said Article 857 became Article 44.34, V.A.C.C.P., with minor changes. The word “review” was substituted for the last word “revision” in the first sentence, and the word “record” was substituted for" the word “transcript” elsewhere in the statute.

In Ex parte Watson, 455 S.W.2d 300 (Tex. Cr.App.1970), it was held that Article 44.34, supra, controls the appellate procedure in habeas corpus cases rather than Article 40.-09, V.A.C.C.P., relating to appeals from convictions in criminal cases. It became clear from Watson that there were no time limits for sending up the appellate record in such cases. Then in 1973 Article 44.34, supra, was amended to provide for such time limitation and an additional sentence was added. Such statute now reads:

“When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen da vs after the date of the judgment. except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge.” Acts 1973, 63rd Leg., p. 1270, eh. 465, § 1 (1973 amendment is underlined above.)

It is observed that this statute has undergone little change in almost one hundred years and has never prescribed with much detail the appellate procedure to be- followed in appeals from habeas corpus proceedings.

As early as 1885 it was held that the rules governing the transmission of transcripts in. other criminal cases do not govern in habe-as corpus appeals. See Ex parte Barrier, 17 Tex.App. 585 (1885); Ex parte Kramer, 19 Tex.App. 123 (1885).

Habeas corpus appeals determined when the various statutes described above were in effect clearly established on the years that in the absence of statement of facts in appeal in habeas corpus proceedings nothing is presented for review, and it is presumed that the judgment entered in the trial court is correct. See, e. g., Ex parte Carrington, 129 Tex.Cr.R. 613, 91 S.W.2d 345 (1936); Ex parte Horn, 97 S.W.2d 698 (Tex.Cr.App.1936); Ex parte Brady, 137 Tex.Cr.R. 609, 132 S.W.2d 592 (1939); Ex parte Ambrose, 145 Tex.Cr.R. 582, 170 S.W.2d 731 (1943); Ex parte Grubman, 146 Tex.Cr.R. 500, 176 S.W.2d 335 (1943); Ex parte Canavan, 147 Tex.Cr.R. 493, 182 S.W.2d 818 (1944); Ex parte Stone, 152 Tex.Cr.R. 351, 214 S.W.2d 127 (1948); Ex parte Toalson, 252 S.W.2d 161 (Tex.Cr.App.1952); Ex parte Freed, 254 S.W.2d 792 (Tex.Cr.App.1953); Ex parte Taylor, 259 S.W.2d 222 (Tex.Cr.App.1953), cert. den., Taylor v. Moore, 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861; Ex parte Lewis, 263 S.W.2d 557 (Tex.Cr.App.1954); Ex parte Chapa, 287 S.W.2d 178 (Tex.Cr.App.1956); Ex parte Lawhon, 295 S.W.2d 660 (Tex.Cr.App.1956). See also Ex parte Adams, 13 S.W.2d 842 (Tex.Cr.App.1929); Ex parte Palmer, 136 Tex.Cr.R. 245, 124 S.W.2d 860 (1939); Ex parte Combs, 132 Tex.Cr.R. 500, 105 S.W.2d 1096 (1937); Ex parte Slayden, 238 S.W.2d 706 (Tex.Cr.App.1951); Ex parte Hopkins, 368 S.W.2d 223 (Tex.Cr.App.1963); Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). And see cases cited in footnote # 1.

Implicit in these holdings is the requirement that it is the appellant’s duty and responsibility to secure the statement of facts for inclusion in the appellate record, and his failure to uphold his responsibility will be held against him. It is true that many of these decisions do not always mention the applicable statute and do not expressly spell out the responsibility of the appellant. However, each of the cases cited involved habeas corpus appeals, while the various statutes described above were in effect governing appeals in habeas corpus proceedings.

In 58 Tex.Jur.2d, Statutes, § 192, pp. 294-298, it is written:

“Where a statute that has been construed, either by a court of last resort or by executive officers, is reenacted without any substantial change of verbiage, it will continue to receive the same construction. This settled rule applies whether the old act is merely amended or is incorporated in a revision; and it applies with particular force in the construction of a statute that has been repeatedly reenacted without change. On the other hand, the rule does not apply where substantial changes are made in the new law; and it may be doubted whether it applies where the existence and meaning of the reenacted statute are dependent on another written law.
“When a statute is reenacted without material change, it is generally presumed that the legislature knew and adopted or approved the interpretation placed on the original act, and intended that the new enactment should receive the same construction as the old one. Accordingly, the construction of the old act is regarded as a part of the new, and a different interpretation will be given only for impelling and cogent reasons.”

Using this rule of statutory construction, I would interpret said Article 44.34 as it has been consistently interpreted in the past. I cannot conclude that the Legislature intended a different construction.

Further, and most importantly, attention is called to Article 2324, V.A.C.S., relating to the duties of a court reporter, which provides in part:

“. . When any party to any suit reported by such reporter shall desire a transcript of the evidence in said suit, said party may apply for same by written demand, and the reporter shall make up such transcript and shall receive as compensation therefor a reasonable amount . . . .” (Acts 1975, 64th Leg., p. 826, ch. 319, § 1.) (Emphasis added.)

There were the same or similar provisions in the forerunners of this statute. See Acts 1955, 54th Leg., p. 1033, ch. 390; Acts 1925, 39th Leg., p. 670, ch. 202 (Article 2238, V.A.C.S.); Acts 1911, 32nd Leg., p. 264, ch. 119 (Articles 1923, 1924, V.A.C.S.). One of these statutes was in effect when most of the cases cited above were decided and should be considered in interpreting the meaning of those decisions.

I am fully aware, of course, of the current provisions of Article 11.07, V.A.C.C.P., as amended 1977 (Acts 1977, 65th Leg., p. 1974, ch. 789), dealing with the specialized procedure dealing with post-conviction ha-beas corpus proceedings in felony cases. It is provided in § 2(d) that if the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant’s confinement the court may order a hearing. Said- subsection (d) then provides in part:

“. . .It shall be the duty of the reporter who is designated to transcribe a hearing held pursuant to this article to prepare a transcript within 15 days of its conclusion. After the convicting court makes findings of fact or approves the findings of the person designated to make them, the clerk of the convicting court shall immediately transmit to the Court of Criminal Appeals, under one cover, the petition, any answers filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact.”

This statute’s immediate forerunner (Acts 1973, 63rd Leg., p. 1271, ch. 465) had a similar provision as to the duty of the court reporter. However, anyone who has followed the history of former Article 119, V.A.C.C.P. 1925, until it became Article 11.-07, V.A.C.C.P. (Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722) and most importantly, the amendments that have been made to said Article 11.07 (Acts 1967, 60th Leg., p. 1734, ch. 659; Acts 1973, 63rd Leg., p. 1271, ch. 465; Acts 1977, 65th Leg., p. 1974, ch. 789), knows that the procedure set forth is an exclusive procedure (§ 3 of the Article) that is limited to post-conviction habeas corpus proceedings in felony cases where unlike other habeas corpus proceedings the writ is expressibly made returnable to the Court of Criminal Appeals.

Nothing in Article 11.07, supra, should be construed as calling for a different interpretation that has long been given Article 44.34, supra.

The construction urged by the majority in Ex parte Sims would place an almost impossible duty upon the clerk of the.court to include in the appellate record of a habeas corpus matter the statement of facts regardless of whether the same has been requested or not, or whether the appellant is indigent or not, particularly when the clerk had no control, statutorily or otherwise, over the court reporter, who is an appointee of the trial court.

Further many, many general habeas corpus appeals are taken for delay only and there is no interest in a statement of facts.

I would affirm the judgment entered in this case.

ODOM, Judge,

dissenting.

The majority now hold that the appellant in a habeas corpus appeal is responsible for securing a transcription of the court reporter’s notes for inclusion in the record on appeal. This they do despite the plain language of Art. 44.34, V.A.C.C.P., which governs habeas corpus appeals. It is not a prerogative of this Court to ignore the clear mandate of the Legislature.

I adhere to the position taken by the majority on original submission in Ex parte Sims, Tex.Cr.App., 565 S.W.2d 45 (No. 55139). The majority fall short of expressly saying that they are relying on the procedures for preparing an appeal from a conviction under the provisions of Art. 40.09, V.A.C.C.P., but it is nevertheless clear that this is precisely what is being done without acknowledging the fact. See the dissenting opinion on original submission in Ex parte Sims, supra. This is in disregard of the rule that a special statute (Art. 44.34, supra) controls over a general statute in the event of conflict. In Ex parte Watson, 455 S.W.2d 300, this Court, in a unanimous opinion authored by today’s voice for the majority, held that Article 44.34, supra, controlled over the provisions of Article 40.09, supra. The appellant in that case argued he was entitled to the time authorized by Art. 40.09 for filing the transcription of the court reporter’s notes and for filing briefs. Judge Douglas wrote:

“Article 44.34, supra, applies. This article as titled ‘Appeal in habeas corpus’ shows the intent of the Legislature that it should apply in such proceedings. No definite time has been provided for preparation for forwarding the record for review. Judge Brown did not err in ordering the record sent to this Court some six weeks after its completion.”

Of course, Article 44.34 has since been amended to require the record be sent to this Court within fifteen days of judgment, as pointed out in the majority opinion on original submission in Sims, supra. Such amendment further evidences the intent of the Legislature that habeas corpus cases be speedily heard and decided. The majority advance no reason for ignoring the clear mandate of the Legislature.

Assuming arguendo, however, that the majority are correct that the burden is on the appellant to request and secure a transcription of the court reporter’s notes and deliver it to the clerk for inclusion in the record on appeal, as is the practice under Art. 40.09, supra, this appeal should nevertheless be abated.

The trial court denied appellant’s motion to reduce bail and notice of appeal was given on November 22, 1977, and the record was approved by the trial judge fifteen days later on December 7, 1977. Appellant was not allowed sixty days to designate matters for inclusion in the record as is the practice under Art. 40.09(3), supra. How can the majority fault appellant for not putting the transcription in the record when he was not given time to do so? Appellant was not given notice of completion of the record before its approval as is also the practice under Art. 40.09(7), supra, and thus was denied the opportunity to object to the omission of the transcription from the record on appeal. How can the majority hold the absence of a transcription against appellant when he was not given an opportunity to examine the appellate record and object to this defect? If the burden is on the appellant to secure the transcription and put it in the record as concluded by the majority, then this appeal should be abated for failure to accord appellant the rights that arise under the other provisions of Art. 40.09, supra, and the opportunity to present a full appellate record to this Court under the practice set out in that article.

The majority have created a catch-22 where appellant is given an impossible task and then faulted for not doing the impossible. Habeas corpus and its appeal were designed by the legislature under the mandate of Article I, Sec. 12, Texas Constitution, to be speedy. Applying to habeas corpus appeals the practice urged by the majority and its fair consequences is contrary to the legislative scheme, frustrates the constitutionally-founded purpose of speedy disposition, and denies this appellant the opportunity to have his case heard by this Court. This plain fact was acknowledged by Judge Douglas in Watson, supra:

“If we were to hold that the provisions for appeal after a trial and a conviction in a criminal case under Article 40.09, supra, should apply in habeas corpus proceedings, the State could delay the final decision for so long a time that our constitutional right to the habeas corpus relief could be suspended and made meaningless. According to appellant’s contention and computation the minimum time for such appeal to reach this Court would be 150 days after the giving of the notice of appeal.”

Why does Judge Douglas disavow today what he acknowledged in Watson, and why do the majority overrule that case sub silen-tiol The adverse impact on the criminal justice system feared by the majority from following the legislative mandate in Art. 44.34 is inconsequential when contrasted with the impact of ignoring it, which was so well described in the words of Judge Douglas quoted above.

I respectfully dissent.

ROBERTS and PHILLIPS, JJ., join this opinion.

OPINION ON APPELLANT’S MOTION FOR REHEARING

Before the court en banc.

ODOM, Judge.

This is an appeal from an order in a habeas corpus proceeding denying a reduction of bail pending appeal.

On original submission the judgment was affirmed because the record did not include a transcription of the court reporter’s notes. By motion for rehearing it has been made to appear that appellant did secure a transcript of the court reporter’s notes and did present that material to the clerk for inclusion in the record on appeal, yet the clerk failed to enclose it when the record was sent to this Court. The complete record is now before the Court and will be considered.

The record reflects appellant was convicted by a jury of four offenses joined for trial. The indictments alleged the same date for the commission of the three robberies and one aggravated assault on the arresting police officer. Punishment was ten years in each, to run concurrently. Bail was set at $10,000 in each case.

Appellant was the only witness to testify at the hearing on the application for a reduction of bail. He testified regarding his family ties to the community, his work history and time in the service, and absence of a prior criminal record. He also testified that his family members are willing to help him make bail, and that $2500 per case, or a total of $10,000, is the amount they would be able to make.

In view of the fact that appellant was found guilty in four cases, we do not consider $40,000 bail to be excessive.

We find no abuse of discretion and deny relief.

      . See Ex parte Sims, Tex.Cr.App., 565 S.W.2d 45 (No. 55,139, decided this day on motion for rehearing which overrules the original holding and holds contrary to the contention of the dissent).

      . Upon request, an indigent defendant will be furnished a transcription of the court reporter’s notes without cost. If one is not indigent, a transcription of such notes will be furnished upon his request, but he must pay for it. Under the theory of the dissent, who would pay for such a record if a wealthy defendant did not request it?

      . Ex parte Clay, 51 S.W. 241 (Tex.Cr.App.1899); Ex parte Naill, 127 S.W. 1031 (Tex.Cr.App.1910); Ex parte Fleming, 97 Tex.Cr.R. 304, 261 S.W. 1037(1924); Ex parte Marteliano, 155 Tex.Cr.R. 221, 233 S.W.2d 504 (1950); Ex parte Mauck, 158 Tex.Cr.R. 200, 254 S.W.2d 128 (1953). See also 19 Tex. Digest, Habeas Corpus, § 113(9)(k); Ex parte Teague, 145 S.W. 620 (Tex.Cr.App.1912); Ex parte Northern, 63 Tex.Cr.R. 275, 140 S.W. 95 (1911).

      . To the same effect are Ex parte Buel, 468 S.W.2d 385 (Tex.Cr.App.1971); Ex parte Starks, 464 S.W.2d 837 (Tex.Cr.App.1971); Ex parte Schoen, 460 S.W.2d 923 (Tex.Cr.App.1970); Ex parte Bunch, 519 S.W.2d 653 (Tex.Cr.App.1975).

      . These holdings do not differ from Ex parte Watson, supra, and cases following Watson. They appear contrary to Ex parte James, 147 Tex.Cr.R. 430, 181 S.W.2d 83 (1944), holding that on appeal from refusal of discharge under writ of habeas corpus, notice of áppeal having been given to the Court of Criminal Appeals, rules governing appeals in criminal cases would control. See and cf. Ex parte Martinez, 297 S.W.2d 842 (Tex.Cr.App.1957); Ex parte Hill, 159 Tex.Cr.R. 238, 262 S.W.2d 507 (1953); Ex parte Denson, 165 Tex.Cr.R. 420, 307 S.W.2d 952 (1957).

      . These holdings are in accord with decisions in civil habeas corpus appeals, see e. g., Ex parte Gamez, 148 Tex. 562, 228 S.W.2d 133 (1950); Lazaros v. State, 228 S.W.2d 972 (Tex.Civ.App.1950—Dallas), and in the normal appellate procedure in appeals from criminal convictions. See Article 40.09, § 5, V.A.C.C.P.

      . These amendments to said Article 11.07 were also designed to encourage and facilitate evi-dentiary hearings in state courts in post-conviction habeas corpus proceedings so that state courts could retain control over such proceedings and to relieve federal district courts from having to always conduct such evidentiary hearings where state inmates brought federal habeas corpus proceedings.

      . Article I, Section 12, of the Texas Constitution provides:
      “The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual." (Emphasis added.) See also Art. 44.36, V.A.C.C.P.


author: TOM G. DAVIS, Judge.

text:
    Anderson Gregory CARRIER, Appellant, v. The STATE of Texas, Appellee.
    No. 54089.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 8, 1978.
    Rehearing En Banc Denied April 5, 1978.
    James R. Dunaway, Orange, for appellant.
    Jim Sharon Bearden, County Atty. and Patrick A. Clark, Asst. County Atty., Orange, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for delivery of heroin. The jury assessed appellant’s punishment at twenty-five years.

Appellant contends that the trial court erred in admitting into evidence over objection an evidence envelope on which the following handwritten notations appeared:

“unlawful dist of a dangerous substance
9/25/74
JW
J.W.P.”

Appellant timely objected when the envelope was marked for identification and again when the envelope was offered into evidence, stating that he objected “for the reason that it is an effort on that one particular instrument to embody and incorporate the entire offense there and is in effect a shorthand or a rendition of the entire State’s case on one piece of paper— for the reason that, I think that I made this objection before, because it makes statements on there that the officer — [At this point the court noted that he had already ruled on the objection. The objection voiced at the offer of the exhibit is essentially the same objection voiced and overruled when the exhibit had been marked].” Appellant’s objection sufficiently apprised the trial court of the basis for same and was not a general objection, as urged by the State. The trial court’s action in overruling the objection requires reversal under our holding in Coulter v. State, Tex.Cr.App., 494 S.W.2d 876; Battee v. State, Tex.Cr.App., 543 S.W.2d 91; and Sisson v. State, 561 S.W.2d 197 (decided Feb. 18,1978). We cannot agree with the State that there is a distinction between the instant case and Coulter. As we previously stated in Battee v. State, supra:

“All such arguments misapprehend the extent of the harm to a defendant that results from admission of such evidence. As the Seventh Circuit has reasoned in United States v. Ware, 247 F.2d 698, 700-701 (7th Cir. 1957):
“The jury thus had before it a neat condensation of the government’s whole case against the defendant. The government’s witnesses in effect accompanied the jury into the jury room. In these circumstances we cannot say that the error did not influence the jury, to the defendant’s detriment, or had but very slight effect.”

The State argues that any error as to the admission of the evidence envelope was waived or rendered harmless when the undercover agent testified to the same facts. We recently addressed an identical contention in Sisson v. State, supra, where we stated:

“We cannot agree with the State’s contention that the error was rendered harmless by the fact that the appellant had an opportunity to thoroughly cross-examine the narcotic agent who had filled out the information on the envelope. In Coulter, supra, we agreed with the reasoning in United States v. Brown, 451 F.2d 1231 (5th Cir. 1971) wherein the court stated:
‘[E]ven though “the persons who made the memoranda were present at the trial and were tendered for cross examination (and) that the memoranda were merely cumulative of other evidence properly in the record and that there was overwhelming evidence properly received of the defendant’s guilt”, we cannot say that the error did not influence the jury, to the defendant’s detriment, or even that it had but very slight effect.’ ”

The judgment is reversed and the cause remanded.


author: PHILLIPS, Judge.

text:
    Jahn Eric HUMPHREYS, Appellant, v. The STATE of Texas, Appellee.
    No. 54324.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 3, 1978.
    John E. Humphreys, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary W. Love, Andy Anderson, and Joe M. Revesz, Asst. Dist. Attys., Dallas, for the State.
   OPINION

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

PHILLIPS, Judge.

This is an appeal from a conviction for resisting arrest. V.T.C.A., Penal Code, Sec. 38.03. Punishment was assessed by the court at 30 days in the county jail, probated, and a $100.00 fine.

The evidence adduced at trial revealed that on September 26, 1975, at approximately 11:30 a. m., the appellant, a 17-year-old Hillcrest High School student, was arrested for failure to identify himself to a police officer and for resisting arrest.

Murphy Middleton, a parking lot attendant, testified that students at Hillcrest High School have identification cards which state the time of day the students can take their cars off the school parking lot. On September 26, at approximately 11:15, two boys drove up to the gate in a Firebird automobile and tried to leave the parking lot using an identification card Middleton knew did not belong to either of the boys. After Middleton refused to allow them to leave, he later saw the two boys talk to the appellant and hand him the identification card. The appellant then drove up to the gate in the Firebird and presented the same ID card to Middleton. Middleton refused to allow the appellant to leave. The appellant drove the car around the parking lot several times and again drove the car up to the gate in an attempt to leave. Middleton again refused and requested the appellant to remove his car from the gate so other students could leave the parking lot. When the appellant refused, Middleton waved to Officer W. A. Carter, a Dallas police officer who was patrolling nearby, in order to gain assistance.

After the appellant parked the car back on the school lot, Middleton observed Officer Carter approach the appellant, who was walking away from the car. Officer Carter asked the appellant to stop in order for Carter to talk to the appellant about the car. The appellant told Carter that he did not have to talk to Carter and kept walking. Officer Carter caught appellant by the shoulder and turned him around. The appellant swung around and pulled Officer Carter’s hand off his shoulder and began cursing and speaking in a loud voice. Officer Carter then told appellant he was under arrest. Middleton noticed the appellant throwing his hands back and forth but did not know if he was using his hands to strike Officer Carter. Carter then wrestled the appellant to the ground and handcuffed him.

Officer Carter testified that after he was signaled, Middleton related the prior events concerning the car and the attempt by appellant to leave the parking lot. Carter approached the appellant in order to determine if the car was stolen. Carter asked appellant if the vehicle was his and the appellant stated it belonged to a friend. Carter also asked the appellant for the car keys and appellant refused. Carter then asked appellant what his name was and for some type of identification. Appellant asked Carter why he wanted to know and Carter explained that he was seeking to determine whether the car was stolen, why the appellant was trying to take the car off the lot, and if the appellant had been trying to steal the car. The appellant refused to identify himself and became increasingly belligerent. After repeated requests, the appellant walked away. Carter followed him and placed his hand on appellant’s shoulder and said, “Stop.” The appellant whirled around and knocked Carter’s arm off his shoulder. After the appellant once more refused to identify himself, Officer Carter told the appellant he was under arrest for failing to identify himself to a police officer.

Officer Carter then stated that the appellant “started to move away from me, he started backing up trying to get away from me. And I reached for him to put my hands on him to keep him from running or whatever he had intentions of doing. And at this time he hit my arms again (indicating), and then when I reached for him again he pushed (indicating) — He had already pushed me down, but he pushed at me. And then I had to grab a hold of him, and then we started struggling there in the street. And again I told him that he was under arrest.” Carter finally wrestled appellant to the ground, handcuffed him, and placed him in the patrol car.

The appellant testified in his own behalf that a friend, Richie Albert, asked appellant to get his car off the parking lot. Appellant tried to leave and when Middleton refused to let appellant out of the gate he parked the car back in the school parking lot. As appellant walked away from the car, Officer Carter walked up and said, “Give me those keys, boy.” Carter did not ask the appellant’s name nor did he ask appellant to produce any identification. After demanding the keys several times, Carter shoved the appellant backwards and grabbed the appellant by the shirt. The appellant jerked back and Officer Carter threw him to the ground and handcuffed him. Carter did not tell the appellant he was under arrest until after appellant was handcuffed. The appellant denied he ever struck Officer Carter.

In appellant’s grounds of error six and seven, he complains of the trial court’s failure to admit into evidence and include in the record Defendant’s Exhibits 1, 2, and 3, which were the information, court’s docket sheet, and judgment record and court minutes from appellant’s former conviction for failure to identify as witness under V.T. C.A., Penal Code, Sec. 38.02. The statement of facts reflects that the appellant tendered these exhibits into evidence in support of his motion for directed verdict, but the exhibits were never admitted by the trial court and the appellant offered no objection at trial. Subsequently, on September 29, 1976, the appellant objected to the record on the grounds that the court reporter inadvertently failed to hear the trial court’s ruling to the effect that the exhibits were admitted into evidence and for the failure of the court reporter to include the exhibits in the statement of facts. There is no indication in the record whether appellant’s objections to the record were called to the attention of the trial court. On October 4, 1976, the trial court entered its order approving the record noting “that no unresolved objection” prevented the court from approving the statement of facts. Grundstrom v. State, Tex.Cr.App., 456 S.W.2d 92; Allaben v. State, Tex.Cr.App., 418 S.W.2d 417. Having offered no objection to the trial court’s failure to allow the exhibits into evidence, nothing is presented for review. Balli v. State, Tex.Cr.App., 530 S.W.2d 123. Concerning appellant’s contention that the trial court failed to include the exhibits in the statement of facts, an examination of the record reveals that the complained of exhibits were included in the transcript certified by the clerk, and the State in its brief agrees with appellant that these exhibits were properly before the court pursuant to Article 40.09, Sec. 1, V.A.C.C.P. Consequently, we will consider these exhibits in discussing appellant’s other grounds of error.

In his fifth ground of error, appellant contends that the evidence is insufficient to sustain the conviction. Specifically, appellant contends that there is no factual evidence that the appellant obstructed or prevented his arrest or that appellant used force against the officer as required under V.T.C.A., Penal Code, See. 38.03.

A similar contention was advanced by the defendant in Washington v. State, Tex.Cr. App., 525 S.W.2d 189. In Washington, the defendant was arrested for disorderly conduct. After the arresting officers placed one handcuff on the defendant’s wrist, the defendant dragged the two officers eight to ten feet, exerting “pretty strong” force. The officers called for assistance and the defendant continued to struggle until additional officers arrived. We held the evidence sufficient in Washington to show the use of force to prevent or obstruct a person known to be a peace officer from effecting an arrest.

Similarly, in the instant case, Officer Carter had identified himself as a police officer and had placed appellant under arrest for failure to identify as a witness. The testimony of Carter showed that the appellant began backing away and when Carter attempted to restrain him the appellant struck Carter’s arms and pushed the officer. The appellant struggled and Officer Carter was forced to wrestle the appellant to the ground before subduing him. We find this evidence sufficient to support the appellant’s conviction for resisting arrest under the provisions of V.T.C.A., Penal Code, Sec. 38.03. See and cf. Sutton v. State, Tex.Cr. App., 548 S.W.2d 697; McMorris v. State, Tex.Cr.App., 516 S.W.2d 927; Matter of Hartsfield, 531 S.W.2d 149 (Tex.Civ.App.— Tyler, 1975, no writ). Appellant’s fifth ground of error is overruled.

In his grounds of error one and two, the appellant contends that his prosecution for resisting arrest was barred by the double jeopardy clause of the United States and Texas Constitutions and that such prosecution violated the carving doctrine as applied by this Court. Specifically, appellant argues that he had been previously convicted, upon the same facts presented in the instant case, of failure to identify as witness under V.T.C.A., Penal Code, Sec. 38.02, and to allow the present prosecution would allow the State to convict the appellant for multiple offenses arising from a single, continuous transaction. We find appellant’s contention without merit.

Two offenses will be deemed “the same” under the double jeopardy clause of the federal and state constitutions unless each requires proof of an additional fact that the other does not. Jeffers v. U. S., 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Iannelli v. U. S., 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Ex parte Joseph, Tex.Cr.App., 558 S.W.2d 891. Resisting arrest requires proof of the use of force which is not required to prove failure to identify as witness. The offense of failure to identify as witness requires proof that a defendant failed to report his name and residence to a police officer when lawfully requested to do so which is not required for resisting arrest. We therefore hold the appellant was not placed in double jeopardy by virtue of his former conviction for failure to identify as witness. See and cf. Crabb v. State, Tex.Cr.App., 503 S.W.2d 260; Harvey v. State, Tex.Cr.App., 515 S.W.2d 108.

Further, as regards appellant’s contention that the present prosecution is barred by the carving doctrine, we noted in Ex parte Joseph, supra:

“Under the carving doctrine as applied in this State, a person cannot be convicted of different parts of a single transaction, though said parts are in contemplation of law distinct offenses. Wright v. State, 17 Tex.App. 152. When one offense is a necessary element in, and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other. Herera v. State, 35 Tex.Cr.R. 607, 34 S.W. 943; Ex parte Evans, 530 S.W.2d 589; Tex.Cr.App.; Price v. State, 475 S.W.2d 742, Tex.Cr.App.”

In the instant case, the prosecution for resisting arrest was not based on the same evidence used to formerly convict the appellant of failure to identify as witness. Further, the acts which formed the basis for appellant’s arrest for failure to identify as witness were complete prior to the acts which constituted resisting arrest. We hold the doctrine of carving does not bar the appellant’s present prosecution for resisting arrest. Ex parte Joseph, supra; Ex parte Caldweli, Tex.Cr.App., 537 S.W.2d 265. Appellant’s grounds of error are overruled.

In his third and fourth grounds of error, appellant contends that the trial court erred in admitting certain statements made by the appellant to Officer Carter after he had been placed under arrest. Specifically, the appellant contends that the trial court erred in allowing the prosecutor to elicit the following responses from the appellant on cross-examination:

“A And I told him, Well, I’m going to — This isn’t going to work; I’m going to nail you. And he goes, How’s that? And I said, Well, my dad’s a lawyer; and then he started being nice to me. And his attitude changed quite drastically after I told him my dad was a lawyer. Because, to me, I think he’s just taking advantage of people that can’t protect themselves. And that’s the only reason I ever said I wouldn’t give him the keys. If he’d of asked me in a decent manner I would have handed him the keys. I have respect for the law, but not law officers that don’t even know the law.
“Q Okay, so you did tell him that your dad was a lawyer and you were going to nail him.
“A Yes, sir, I did.”

Appellant contends on appeal that, while he did not make timely and proper objections thereto, such questioning constituted misconduct on the part of the prosecutor which denied appellant a fair trial. Appellant cites and relies upon Ruth v. State, Tex.Cr.App., 522 S.W.2d 517; Stein v. State, Tex.Cr.App., 492 S.W.2d 548; and Koller v. State, Tex.Cr.App., 518 S.W.2d 373. After a careful examination of these cases, we cannot conclude that the improper questioning by the prosecutor in the instant case approached the abuses which were apparent in the cases relied upon by appellant. Consequently, while such conduct is not to be commended, we conclude that reversible error is not presented. Cooper v. State, Tex.Cr.App., 500 S.W.2d 837; Randolph v. State, Tex.Cr.App., 499 S.W.2d 311; Garcia v. State, Tex.Cr.App., 495 S.W.2d 257.

The appellant further complains that the prosecutor was improperly allowed to ask appellant if he had filed a lawsuit or grievance against Officer Carter arising from the arrest. No objection was offered to this testimony. Nothing is presented for review. Rasberry v. State, Tex.Cr.App., 535 S.W.2d 871; Lopez v. State, Tex.Cr.App., 535 S.W.2d 643; Stutes v. State, Tex.Cr.App., 530 S.W.2d 309. Appellant’s contentions are overruled.

The judgment is affirmed.

      . V.T.C.A., Penal Code, Failure to Identify as Witness, Sec. 38.02(a) provides:
      “A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information.”

      . V.T.C.A., Penal Code, Sec. 38.03(a), provides: “A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or search of the actor or another by using force against the peace officer or another.”

      .We express no opinion on the legality of this arrest. V.T.C.A., Penal Code, Sec. 38.03(b), provides:
      “It is no defense to prosecution under this section that the arrest or search was unlawful.”


author: DALLY, Judge.

text:
    Bill WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 54416.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 3, 1978.

      Zbranek & Hight, Liberty, for appellant.
    James H. Keeshan, Dist. Atty. and Jerry Winfree, Asst. Dist. Atty., Conroe, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of felony theft; the punishment is imprisonment for 7 years.

The appellant was convicted under the former penal code for the offense of theft by false pretext. The prosecution is concerned with an alleged fraudulent conveyance of real property; the land was sold on a contract of sale, but the appellant was unable to furnish good title to the property after he had received full payment.

The judgment will be reversed. The judgment is not supported by any evidence since the jury was erroneously instructed that it could find the appellant guilty of an uncharged offense when evidence of that offense had been admitted for the limited purpose of showing scheme and system. Another error is the overruling of the appellant’s challenge for cause of a prospective juror who revealed on voir dire that he was biased against the appellant.

The indictment alleges that appellant committed theft on or about July 19, 1970, in connection with the sale of a parcel of land. When the prosecutor voir dired the jury, in his opening statement he declared that the State was relying on the 1970 transaction. During the course of the trial the State offered evidence of eleven similar offenses for the stated purpose of showing appellant’s intent to defraud the complainant. The complainant was also the victim of one of these transactions on February 13, 1973. Defense counsel objected when evidence of the extraneous offense was offered, and the court stated that it would be admitted for the limited purpose of showing the alleged fraudulent scheme.

Although the State asserts that the court subsequently admitted this evidence for all purposes, this contention is not borne out by the record. In fact, the court in its written charge instructed the jury that evidence of the offenses other than the one alleged in the indictment was admitted to show “system, scheme, plan, intent or knowledge and for no other purpose . you will consider it solely for the purpose for which it was admitted and no other, as proof of any other transaction is not proof of the charge contained in the indictment .” Curiously enough, however, the court in the same charge instructed the jury that the State had elected to rely on the February 13, 1973, transaction, and authorized the jury to convict the appellant for that offense which was admitted for the limited purpose.

The State contends, correctly, that it is not bound by the date on or about which the offense is alleged to have been committed, and that appellant could have been convicted upon proof that the offense was committed any time within the period of limitation and prior to the return of the indictment. Art. 21.02, Sec. 6, V.A.C.C.P.; Hill v. State, 544 S.W.2d 411 (Tex.Cr.App.1976); McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974). However, that rule does not apply to the case at bar. There is no evidence that the offense alleged in the indictment occurred on a different day than alleged.

We have been unable to find a prior case in which this Court has considered whether evidence admitted for the limited purpose of showing scheme and system could support a conviction; we hold that evidence admitted for the limited purpose of showing a fraudulent scheme will not support a judgment of conviction. An analogy may be that when evidence is admitted for impeachment purposes in a criminal ease, it may not be considered as substantive evidence which will support a judgment. Keys v. State, 492 S.W.2d 514 (Tex.Cr.App.1973); Whitfield v. State, 492 S.W.2d 502 (Tex.Cr.App.1973); Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967); Shivers v. State, 374 S.W.2d 672 (Tex.Cr.App.1964); Wells v. State, 154 Tex.Cr.R. 336, 227 S.W.2d 210 (1950).

Evidence admitted for a limited purpose may not be used for another purpose or to support a judgment in a civil case. See Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610 (1960); Hoggett v. Wright, 374 S.W.2d 690 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); Wicks v. Langford, 320 S.W.2d 707 (Tex.Civ.App.—Eastland 1959, no writ); Pinson v. Dreymala, 320 S.W.2d 152 (Tex.Civ.App.—Houston 1959, writ dism’d); Scull v. Jackson, 131 S.W.2d 280 (Tex.Civ.App.—Texarkana 1939, no writ); Turner v. Germany, 94 S.W.2d 1177 (Tex.Civ.App.—Texarkana 1936, rev’d on other grounds, 132 Tex. 491, 123 S.W.2d 874 1939); Short v. Blair & Hughes Co., 230 S.W. 427 (Tex.Civ.App.—Dallas 1921, no writ). The evidence which was admitted for the limited purpose will not support the judgment of conviction.

Also, the record reflects reversible error in the overruling of appellant’s challenge for cause of a prospective juror. Venireman Roy Tilley stated on voir dire that appellant once had drilled a well for him, and that he was dissatisfied with the' well. Tilley further stated that he was prejudiced against the appellant as a result of his dealings with appellant, and that therefore his deliberations as a juror would be affected. Tilley later stated that he could disregard his past association with appellant and base his decision on the evidence and the court’s charge.

After his challenge for cause was overruled, appellant used a peremptory challenge to strike venireman Tilley. Appellant exercised all his peremptory challenges and then was forced to accept a juror who he stated was objectionable to him, thus preserving error. Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978); Salazar v. State, 193 S.W.2d 211 (1946); Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274 (1944). Since Tilley clearly evinced bias and prejudice toward appellant, he could not be qualified as a juror, and the court erred in overruling appellant’s challenge for cause. Art. 35.16(a)(8), V.A.C. C.P. While a trial court may hold a juror • qualified who states that he can lay aside any opinion which he may have formed, no such discretion vests in the court with reference to a juror with bias or prejudice toward an accused. Gonzalez v. State, 331 S.W.2d 748 (Tex.Cr.App.1960).

When it appears that the feeling had by the proposed juror is really one of prejudice, and that it is directed toward the accused, it is not ordinarily deemed possible for such a juror to be qualified by stating that he can lay aside such prejudice. Hooper v. State, 100 Tex.Cr.R. 147, 272 S.W. 493 (1925). See also McBride v. State, 110 Tex.Cr.R. 308, 7 S.W.2d 1091 (1928); Brown v. State, 289 S.W. 392 (Tex.Cr.App.1926).

The judgment is reversed and the cause remanded.


author: ROBERTS, Judge.

text:
    Amos J. HARRIS, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 54827-54829.
    Court of Criminal Appeals of Texas, En Banc.
    May 3, 1978.
    David B. Bonham, Nederland, on appeal only, for appellant.
    Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from two convictions for delivery of marihuana [Cause No. 32031 in Jefferson County (our Cause No. 54,827) and Cause No. 32205 in Jefferson County (our Cause No. 54,829)] and one conviction for delivery of lysergic acid diethylamide [Cause No. 32035 in Jefferson County (our Cause No. 54,828)]. The appellant pleaded guilty to all three indictments and upon the appellant’s motion, the pleas of guilty were consolidated and a jury was empaneled to assess punishment in all three cases. The jury assessed the appellant’s punishment at ten years in both Cause No. 54,827 and Cause No. 54,829, and fifteen years in Cause No. 54,828.

The appellant contends that the two indictments for delivery of marihuana were fundamentally defective and that the trial judge erred by allowing the prosecutor to introduce a tape recording to impeach the appellant. We reverse the judgments in Cause Nos. 54,827 and 54,829 and affirm and reform the judgment in Cause No. 54,-828.

The evidence reveals that during 1974 the appellant worked in the Jefferson Chemical Plant in Port Neches. During October, 1974, Jerry Henderson, an acquaintance of the appellant’s, introduced the appellant to Linda Sonnier Fisher, who was also employed in the plant. When the appellant was introduced to Fisher, he apparently told her that he could get her any kind of drugs she wanted.

Fisher, who was working with the plant’s security division to locate drug traffickers in the plant, received a tablet from the appellant at the plant on November 1,1974. Fisher gave it to a Mr. Fults in the plant’s safety office. Fults had the tablet analyzed and the analysis showed that it contained lysergic acid diethylamide.

On December 14, 1974, the appellant and Fisher met at the Mohawk Bowling Lanes. Fisher was under constant surveillance by Officer Victor Gonzales of the Jefferson County Sheriff’s Office. According to Fisher, the appellant told her that he could not deliver her request for any “pills,” but he could get her marihuana. Fisher agreed that marihuana would suffice. Fisher and the appellant left the bowling alley separately, but later the same day they met there again. At that time, the appellant gave Fisher a baggie of marihuana.

Finally, on December 20, 1974, the appellant delivered a box with pills and a baggie of marihuana to Fisher at the plant. The appellant was arrested by Officer Gonzales at that time.

The defensive evidence attempted to establish that the appellant agreed to get drugs for Fisher in return for Fisher’s assistance in procuring a job at the plant for the appellant’s brother-in-law. The appellant testified that he never took drugs and that he had sold drugs only to Fisher and only at the price he had paid for them.

The appellant’s first two contentions deal with the indictments for delivery of marihuana [our Cause Nos. 54,827 and 54,-829], Although the two indictments allege that the delivery of marihuana occurred on two separate dates, both indictments state that the appellant “. . did then and there knowingly and intentionally deliver to Linda Sonnier marihuana.”

The appellant contends, and the State concedes that the indictments are fundamentally defective.

Vernon’s Ann.Civ.St., Article 4476-15, Section 4.05 — the Texas Controlled Substances Act — provides for offenses involving the possession and delivery of marihuana. Specifically, Section 4.05(d), (e) and (f) state:

“(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
“(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
“(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

In Suarez v. State, 532 S.W.2d 602, 603 (Tex.Cr.App.1976), we stated:

“The proper interpretation of these statutory provisions is that (1) delivery of more than one-fourth ounce of marihuana is a felony of the third degree regardless of whether the delivery was for remuneration; (2) the delivery of any amount of marihuana for remuneration is a felony of the third degree; and (3) the delivery of less than one-fourth ounce of marihuana without remuneration is a Class B misdemeanor.”

Neither of the instant indictments allege the quantity of marihuana delivered or whether the delivery was for remuneration. Neither indictment alleges a felony offense, but both indictments allege offenses punishable as Class B misdemeanors.

Accordingly, the judgments in Cause Nos. 54,827 and 54,829 are reversed and the causes remanded to the trial court to be transferred to a court having jurisdiction of the misdemeanor offense of delivery of marihuana. Article V, Section 17, Texas Constitution; Article 21.26, Vernon’s Ann. C.C.P. The appellant’s first and second grounds of error are granted.

The appellant’s third contention is that the trial judge committed reversible error by permitting the prosecutor to introduce into evidence a tape recording of a conversation between the appellant and Linda Sonnier Fisher.

After the State rested its case in chief, the appellant testified. During the prosecutor’s cross-examination of the appellant, the prosecutor asked the appellant: (1) if he ever asked Fisher to go to bed with him; (2) if he ever asked Fisher to “shack-up” with him; and (3) if he ever asked Fisher to “curl up” with him. The appellant responded in the negative in each instance.

After the defense rested, the State called Fisher as a rebuttal witness. The prosecutor established that on December 10, 1974, Fisher and the appellant had a telephone conversation and that Fisher had tape recorded that conversation. Fisher identified the tape cassette, but the appellant stated that:

“Your Honor, I’m going to object to the listening of the tape because the proper predicate has not been laid.”

The trial judge overruled the objection and the following was heard by the jury:

“(Male voice) ‘Hello.’
“(Female voice) ‘Rabbit?’ [the appellant’s nickname]
“(Male voice) ‘Yeah.’
“(Female voice) ‘What’re you doing?’
“(Male voice) ‘Laying down.’
“(Female voice) ‘Don’t you work evenings?’
“(Male voice) ‘Uh, huh.’
“(Female voice) ‘You better get up and get with it.’
“(Male voice) ‘Why don’t you come with me?’
“(Female voice) ‘No Thanks. I’ll pass this time. Hey, listen, can you get that stuff for me?
“(Male voice) ‘Huh?’
“(Female voice) ‘Can you get that stuff for me?’
“(Male voice) T won’t be able to get it today.’
“(Female voice) ‘When can you get it?’
“(Male voice) ‘Probably Friday, when I have some money.’
“(Female voice) ‘About how much?’
“(Male voice) ‘Costs about $2.00 a piece.’
“(Female voice) ‘$2.00 a piece? How many can you get me?’
“(Male voice) ‘How many — you know— how many you want?’
“(Female voice) ‘As many as possible.’
“(Male voice) ‘Yeah?’
“(Female voice) T want to get stored up.’
“(Male voice) ‘Yeah.’
“(Female voice) ‘Yeah, it’s pretty good stuff.’
“(Male voice) “Uhmm, Hummm.’
“(Female voice) ‘Can you get me about four?’
“(Male voice) ‘Yeah.’
“(Female voice) ‘Me and this girlfriend are going to make our trip to Houston.’
“(Male voice) ‘Y’all didn’t go the other day?’
“(Female voice) ‘No, we couldn’t. A bunch of stuff came up with my parents so I didn’t get to go anywhere, but this weekend coming I don’t have any kids, so — ’
“(Male voice) ‘Come shack up with me if you want.’
“(Female voice) ‘No, I’ll pass this time.’
“(Male voice) ‘Okay.’
“(Female voice) ‘Uh, no, we’re gonna go to a party and we want to have a little stuff with us.’
“(Male voice) ‘Okay.’
“(Female voice) T figure two of ’um would do us.’
“(Male voice) ‘Why don’t you come curl up with me one time, you know, get high, and everything?’
“(Female voice) ‘Well, we’ll see.’
“(Male voice) ‘Okay.’
“(Female voice) ‘Okay.’
“(Male voice) ‘We’ll have some stuff then.’
“(Female voice) ‘Huh?’
“(Male voice) T said, we’ll have some stuff then.’
“(Female voice) ‘See if you can’t get that stuff for me Friday.’
“(Male voice) ‘Okay.’
“(Female voice) ‘And I’ll have you some money.’
“(Male voice) ‘Okay. You want me to pass around there when I come to work?’
“(Female voice) ‘Yeah.’
“(Male voice) ‘Okay.’
“(Female voice) ‘Okay, bye, bye.’ ”

Although there was evidence that the appellant went by the name “Rabbit,” there was no testimony as to whose voices were in fact on the tape after the tape was in fact played.

The appellant challenges the admissibility of the tape recording on the basis that a proper predicate had not been laid.

In Edwards v. State, 551 S.W.2d 731 (Tex.Cr.App.1977), we dealt with what constituted a proper foundation for the admission of a sound recording. We there noted that the defendant

“relies on Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.) which sets out a seven-pronged predicate recommended in 58 A.L.R.2d 1024, ‘Admissibility of sound recordings in evidence.’ Sec. 2, pp. 1027-8, as follows:
‘ * * * The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording. They also indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.’ ”

We went on to state:

“We hold that the requirements as set out above are applicable in criminal trials as well. However, we also find that at least some of the requirements can be inferred from the testimony and need not be shown with the same particularity required for admission of other mechanically acquired evidence, such as the results of a breathalyzer test.”

Since we there held that some of the requirements can be inferred from the testimony, the issue of whether the appellant’s objection was sufficiently specific to preserve error must be considered.

In Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977), we stated:

“The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it.1 Second, a spe-1 “A collateral but important ramification of this function is to provide the trial court with an opportunity to attempt to cure any harm resulting from the action giving rise to the objection. Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App.1972) and cases cited therein.” cific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. McCormick, Handbook of the Law of Evidence, Sec. 52, p. 113, 115 (2d ed. 1972); 4 Jones, The Law of Evidence, Sec. 28:2, p. 276 (6th ed. 1972).”

In the present case, the appellant did not inform the trial judge of which of the seven requirements the prosecution had not satisfied. The prosecutor was not put on notice of which the seven requirements he had failed to satisfy. We hold that the objection was too general to preserve error. Boss v. State, 489 S.W.2d 582 (Tex.Cr.App.1973); Bennett v. State, 394 S.W.2d 804 (Tex.Cr.App.1965). Appellant’s third contention is overruled.

Our review of the record has revealed that the jury assessed the appellant’s punishment at fifteen years in Cause No. 32035 (our Cause No. 54,828). The judgment and sentence in Cause No. 32035 (our Cause No. 54,828) both reflect that the jury only assessed the appellant’s punishment at ten years. Therefore, the judgment and sentence are ordered reformed to show that the jury assessed the appellant’s punishment at fifteen years.

The judgments in Cause Nos. 32031 and 32205 (our Cause Nos. 54,827 and 54,829) are reversed and the causes remanded for proceedings consistent with this opinion. The judgment and sentence in Cause No. 32035 (our Cause No. 54,828) are ordered reformed, and as reformed, are affirmed.

      . Of course, our disposition of these cases does not preclude reindictment by the State.


author: ONION, Presiding Judge.

text:
    Calistro Cruze MARTINEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 58030.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 3, 1978.
    V. Michael Toomey, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, and Larry Thomas, Asst. Dist. At-tys., Houston, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of burglary of a building. Punishment was assessed at imprisonment for 15 years.

In his brief filed in the trial court appellant’s sole contention is that the indictment under which he was convicted is fundamentally defective because it fails to allege a culpable mental state. See V.T.C.A., Penal Code, Sec. 6.02. The indictment, omitting its formal parts, alleged that appellant, on or about May 11, 1977, did then and there unlawfully “with intent to commit theft, enter a building not then open to the public, owned by Jim Patrick, hereafter styled the Complainant, without the effective consent of the Complainant. . . .” Thus, the indictment alleged a violation of V.T.C.A., Penal Code, Sec. 30.02(a)(1). Appellant argues that, to be sufficient, the indictment should have alleged that he did then and there “unlawfully, intentionally, or knowingly entered (sic) a building, not then being open to the public and without the effective consent of the owner [and with the intent to commit theft].” (Emphasis in the brief). Among the cases cited in support of this contention are Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977), and Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977). Those cases, however, dealt with burglary prosecutions under V.T.C.A., Penal Code, Sec. 30.02(a)(3) and not Sec. 30.-02(a)(1).

Even if Winton were applicable in the instant case, it should be observed that, in that case, the indictment totally failed to allege a culpable mental state. The indictment in the present case, however, alleged that appellant entered the building with the intent to commit theft. In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976), a prosecution for burglary of a habitation under Sec. 30.02(a)(1), we stated:

“V.T.C.A. Penal Code, Sec. 6.02, provides that a person does not commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence engages in conduct as the definition of the offense requires. The conduct that is the gist of the offense of burglary in this case is the entry into the habitation [footnote omitted] with the requisite intent. The indictment alleges the culpable mental state with which the appellant entered the habitation; it alleges that he entered the habitation ‘with the intent to commit theft.’ ”

Appellant argues, however, that Teniente is distinguishable from the instant case. He states that in Teniente no motion to quash the indictment was filed, as in the instant case; and, that in Teniente the Court did not discuss Art. 21.05, Vernon’s Ann.C.C.P., which provides that where a particular intent is a material fact in the description of the offense, it must be stated in the indictment. Although appellant filed a motion to quash in the instant case, it does not appear from the record that the motion was ever brought to the attention of the trial court or that a ruling was ever secured thereon. Consequently, only fundamental defects may be considered on appeal. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). Thus, even if Teniente could be read for the proposition that the indictment in that case was not fundamentally defective, appellant’s contention must be overruled. Moreover, appellant’s reading of Teniente is too restrictive. Art. 21.05, supra, provides that where a particular intent is a material fact in the description of the offense, it must be stated in the indictment. The particular intent which is a material fact in a prosecution for burglary under Sec. 30.02(a)(1) is that the entry be made with the intent to commit a felony or theft. The indictment in the present case alleged that the entry was made with the intent to commit theft. As we stated in Victory v. State, 547 S.W.2d 1, 4 (Tex.Cr.App.1976):

“Teniente stands for the proposition that the allegation of the required particular intent sufficed for the more general culpable mental state as well.”

Therefore, we hold that the indictment was not subject to a motion to quash on the ground that it failed to allege a culpable mental state. Appellant’s contention is without merit and is overruled.

The judgment is affirmed.


author: REYNOLDS, Justice.

text:
    The STATE of Texas, Appellant, v. Mary A. Stephenson BAKER et al., Appellees.
    No. 8835.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 28, 1977.
    Rehearing Denied Dec. 27, 1977.
    Dean Arrington, Asst. Atty. Gen., Austin, for appellant.
    Templeton & Garner, Robert E. Garner, Amarillo, for appellees.
   REYNOLDS, Justice.

This appeal from a judgment rendered in a condemnation action presents no issue which is not controlled by settled authority; therefore, because the litigants are fully familiar with the record and the appellate issues, this abbreviated opinion suffices to explain why the judgment is affirmed.

The judgment from which the State of Texas appeals awards monetary compensation for the part of a tract of land taken and for damages to the remainder. The sufficiency of the evidence to sustain the amounts of the awards is not questioned.

Initially, the state complains of the evidence of the use made of an irrigation well located on a separate, but formerly owned, adjacent tract in connection with the parent tract when there was no unity of ownership. The state correctly contends that unity of ownership is required to justify a recovery of damages under the unity of use doctrine. Gossett v. State, 417 S.W.2d 730, 734-35 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.). Here, however, the evidence was specifically offered, and admitted, not as a measure or as an item of damages but as an element of information —i. e., “the use that is being made of it”— to guide the jury, if it did, in arriving at the correct measure of damages. For this purpose, the evidence was admissible. Parker County v. Jackson, 5 Tex.Civ.App. 36, 23 S.W. 924, 925-26 (1893, no writ); 22 Tex. Jur.2d Eminent Domain § 156 (1961). The first point of error is overruled.

The remaining points are interrelated. The subject of the second point is jury argument; points three through six concern side-bar remarks; and the seventh, and last, point is that the cumulative effect of the errors alleged in the first six points warrants reversal. We do not detail each impropriety alleged. We have, however, carefully examined and considered each of them in the light of the attending circumstances and have considered all of them in the light of the record as a whole.

Rule 269, Texas Rules of Civil Procedure, requires counsel to confine argument to the evidence and the opposing argument, and directs the trial court to rigidly suppress any side-bar remarks. By virtue of the rule, control of counsel during a trial must rest within the sound discretion of the trial court, and it is uniformly held that a reviewing court will not interfere unless it is apparent that the trial court abused its discretion. Associated Employers Insurance Company v. Burris, 321 S.W.2d 112, 118 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.).

We recognize that in ardent advocacy, counsel is apt to stray from the decorum prescribed by the rule; nevertheless, we, like the court in Texas Employers’ Ins. Ass’n v. Kelly, 56 S.W.2d 1108 (Tex.Civ.App.—Fort Worth 1932, writ dism’d), to which the state refers us, do not look with favor on the transgressions. Yet, before we could reverse the judgment because of argument, and similarly because of the sidebar remarks, it must appear that they were improper and we must be satisfied that they were reasonably calculated to cause and probably did cause the rendition of an improper judgment. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 599 (1953).

Appellees defend their argument, but candidly concede that the side-bar remarks were improper. Assuming arguendo that the argument also was improper, we, as the court held in Kelly, do not believe in the light of the whole record that it, and the side-bar remarks, were so grave and so fundamentally destructive to the merits of the case as to require reversal.

From our review of the offending matter in the context in which it occurred, we are not prepared to say that it is more reasonable to believe that the argument and sidebar remarks caused the jury to award greater amounts than it otherwise would have awarded. At least we can advance no valid reason for holding that it was the offensive matter, and not the unchallenged testimony of values heard by the jury, which caused the jury to reach its verdict.

Thus, we are not able to say that the trial court abused its discretion in making the rulings it did, for the argument and sidebar remarks, improper though they may be, were not, in our view, calculated to cause and probably did not cause, either singularly or collectively, the rendition of an improper judgment. Rule 434, T.R.C.P. The last six points are overruled.

The judgment is affirmed.