author: DOUGLAS, Judge. PHILLIPS, Judge, ODOM, Judge. DOUGLAS, Judge,

text:
    Roy Douglas FURRH, Appellant, v. The STATE of Texas, Appellee.
    No. 58399.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 28, 1979.
    On Rehearing July 3, 1979.
    Harold J. Laine, Jr., on appeal only, Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and William G. Ogletree, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking appellant’s probation.

On June 24, 1971, appellant pled guilty to the offense of possession of marihuana. Punishment was assessed at ten years; the imposition of sentence was suspended and appellant was granted probation. One of the conditions of probation was that he report to the probation officer as directed.

On February 24, 1977, the State filed a second amended motion to revoke probation alleging four grounds. At the hearing on May 12, 1977, the appellant pleaded “true” to the first ground. The trial judge then asked the State for its recommendation:

“MR. MOSES: (For the State) Your Honor, we recommend that he be continued on probation; however, we do . recommend six months in jail. We recommend that if his probation be revoked that the full term be imposed and no early release from probation at this time.
“THE COURT: All of those things are continued on the Second Amended Order, along with conditions M, R, T, U and V. I want to make sure you understand what’s going on here. I did have some discussion about your case with Mr. Moses and Mr. Griffin. It’s under present-day standards, not really as serious an offense as when you were found guilty.
“DEFENDANT: Yes.
“THE COURT: You are entitled to some consideration — considering reducing this term some if the probation is revoked. Apparently, what the agreement now is rather than revoke your probation continue you on probation, but if you break the terms of probation the next time it’s for the full term. Do you understand what your options are?
’DEFENDANT: Yes.”

The record shows that the trial judge then issued a Second Amended Probation Order but noted on the court’s docket sheet that, “Revocation held in abeyance. Terms amended as per order filed this date. (Serve 6 months Co. Jail.).”

On June 10, 1977, the State filed its third amended motion to revoke alleging, among other things, that appellant had committed the offense of possession of stolen mail matter and forgery. On June 17,1977, a fourth amended motion for revocation was filed.

Another hearing was held on August 8, 1977, at which time the following exchange occurred:

“THE COURT: Would you state for the Record what you told me?
“MR. GRIFFIN: (For the Defendant) Yes, Your Honor. I advised Mr. Furrh when we were in court previously back on May twelfth of this year when Mr. Furrh at that time pled true to the counts in the Motion to Revoke Probation and my file reflects the Court at that time went ahead and revoked probation, but held the disposition in abeyance.
“THE COURT: The revocation in abeyance, but the ground was found true.
“MR. GRIFFIN: The Ground was found true, yes, sir. At that time Mr. Furrh was remanded to jail and I advised Mr. Furrh that all that is necessary for the Court to do this morning is to assess punishment on the revocation and I also advised him that the District Attorney’s Office has made an offer to reduce the ten-year probation term to an eight-year term and Mr. Furrh has advised me it’s not his desire to accept any reduced term.”

The court then stated that because of the appellant’s plea of true at the May 12, 1977 hearing, “the motion is granted and the probation order is vacated, that being the Second Amended Motion to Revoke Probation, and sentence is imposed at ten years.

Appellant contends that the trial court abused its discretion because there was no evidence that he had violated a condition of the Second Amended Order of Probation.

In Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), the defendant entered a plea of “true” at a May 11, 1976 hearing on the State’s second motion to revoke probation. The trial court accepted the plea but recessed the hearing until the court reached a decision regarding revocation. The defendant was released and continued on probation pending the court’s decision. On November 16, 1976, another motion to revoke was filed charging the defendant with unlawful possession of heroin. The defendant was before the trial court again on January 11,1977. At that hearing the court ordered revocation of probation based on the defendant’s plea of “true” taken at the May 11, 1976 hearing, not on the basis of the more recent motion filed in the interim. The record in that case indicated that the trial judge was aware of and questioned the defendant about his recent arrest. We concluded that there was no abuse of discretion shown and that it was proper for the court to take the revocation decision under advisement for eight months. Moreover, in Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974), under facts similar to the instant case, we held that there was no abuse of discretion where nothing in the record indicated that the trial court knew of the defendant’s interim arrest or acted to revoke because of it. See Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973).

Appellant, however, asserts that Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976), is controlling. In Wester, the trial court, after accepting the defendant’s plea of true, stated unequivocally that probation would be continued but that it would be automatically revoked for any other violation. This was also written on the new probation order. The defendant was later involved in another offense and the court, without a hearing, noted on the docket sheet that probation was revoked because of the new allegation. A later hearing confirmed that the new offense was the basis for the revocation. We found that the trial judge had abused his discretion by automatically revoking upon learning of the new arrest.

The facts in the case at bar are distinguishable from those in Wester. In the instant case the record shows the trial court merely held the revocation in abeyance until a decision could be reached. This is also supported by the docket sheet entries. The statements of the appellant’s attorney below demonstrate that appellant was never misled into believing probation had been continued indefinitely. Moreover, there is nothing in the record to suggest that the trial court acted to revoke on the basis of the new offenses.

Finding no abuse of discretion, the judgment is affirmed.

PHILLIPS, Judge,

dissenting.

The facts as set forth in the majority opinion establish without a doubt that of the two statutory options available to the trial court upon a motion to revoke probation, this trial court chose to continue the probationer on his probation notwithstanding his plea of true to the first ground of the motion to revoke probation. Although his attorney at the subsequent hearing on August 8, 1977, and the court were under the impression that it was appropriate to merely withdraw the privileges of probation, these individual subjective impressions are not sufficient to overcome the statutory restrictions on the trial court’s discretion established by Section 8 of Article 42.12, V.A.C.C.P. That statutory provision does not authorize holding revocations in abeyance. There is no indication that the trial court needed additional time to determine whether to reduce the term of imprisonment since the trial court stated expressly that rather than revoking the probation it would be continued on the understanding that when and if eventually revoked it would be for the full term of imprisonment originally assessed.

It being clear that appellant was continued on probation after the May 12, 1977, hearing, the revocation of the continued probation on August 8, 1977, without adducing a plea or evidence on any subsequently alleged violations clearly violates the stricture of Wester v. State, Tex.Cr.App., 542 S.W.2d 403. Thus, the entry of the revocation order and imposition of sentence was clearly an abuse of the trial court’s discretion as controlled by Article 42.12, V.A.C.C.P., and Wester v. State, supra.

There is no indication in this record, as there was in Traylor v. State, Tex.Cr.App., 561 S.W.2d 492, that the trial court was “recessing” the hearing on the revocation motion. Neither are the facts in Sappington v. State, Tex.Cr.App., 508 S.W.2d 840, as compelling as the facts in this case to conclude that, indeed, the trial court continued the probationer on his probation rather than revoke it. To the extent that Sap-pington v. State, supra, and Traylor v. State, supra, hold forth the proposition that a trial court’s discretion in the area of probation revocation can exceed the scope of the statutory options provided for under Section 8, Article 42.12, V.A.C.C.P., they should be overruled.

For the foregoing reasons, I vigorously dissent to the majority’s conclusion that the trial court did not abuse its discretion. The judgment should be reversed and remanded.

Before the Court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

This is an appeal from a revocation of probation. After conviction for possession of marihuana in 1971, punishment was assessed at ten years and appellant was placed on probation.

Appellant contends the trial court abused its discretion and denied him due process of law when it revoked his probation on August 8, 1977, without any evidence of a violation of probation. The trial court revoked appellant’s probation on August 8, 1977, on the basis of appellant’s plea of true entered at a hearing on May 12, 1977, to a. motion to revoke probation that had been filed on February 12, 1977. On original submission it was held no abuse of discretion was shown. In his motion for rehearing appellant relies on Wallace v. State, Tex.Cr.App., 575 S.W.2d 512. We agree that Wallace is more closely on point than the cases relied on in our prior opinion and grant appellant’s motion for rehearing and set aside the revocation of probation.

In Wallace v. State, supra, the court, after a June 10 hearing on a motion to revoke the defendant’s probation, ordered the probation revoked but deferred sentencing, announcing, “ . . .1 will not impose sentence at this time. I will delay that action until some further date. I hope that I don’t have to take that action.” About two months later the defendant’s conditions of probation were modified. The following December the State filed a motion requesting sentencing and in January the trial court revoked the defendant’s probation on the basis of the June 10 hearing. On appeal this Court held:

“It is clear from the statute that upon a revocation hearing the discretion to either continue, modify or revoke rests in the discretion of the trial judge. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972); Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566 (1961); Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59 (1955). If, however, probation is revoked, the trial judge is to proceed as if there had been no probation.
“What did the trial judge do here? Did he continue the appellant on probation or did he revoke probation on June 10, 1977? He orally stated he was revoking probation, but he entered no written revocation at the time and did not impose sentence. In fact, he stated to the appellant that he hoped he didn’t have to take that action. The docket sheet then reflects the appellant was ordered to serve four months in county jail. .
“ . . .on August 17, 1977, the appellant’s conditions of probation were modified and he was released subject to such conditions. He was not sentenced, and appellant’s case was not disposed of as if there had been no probation. In effect what the court did was to continue the appellant on probation.”

In this case, likewise, the effect of what the trial court did after the May 12, 1977, hearing at which appellant pled true to the State’s motion to revoke, was to continue appellant on probation with modified conditions. The record shows that after the May 12 hearing the trial court issued a second amended probation order imposing additional conditions of probation on appellant. He was not sentenced and his case was not disposed of as if there had been no probation. Article 42.12, Sec. 8(a), V.A.C.C.P., provides in controlling part:

“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify or revoke the probation. The court may continue the hearing for good cause shown by either the defendant or the state. If probation is revoked, the court may proceed to dispose of the case as if there had been no probation . . .”
(Emphasis added.)

The record in this case, as in Wallace v. State, supra, clearly shows that the trial court continued appellant on modified probation and did not revoke the probation after a violation of the conditions of probation was shown at the earlier hearing. Cf. Wester v. State, Tex.Cr.App., 542 S.W.2d 403. The court having exercised its authority at that earlier hearing by modifying the terms of probation instead of revoking probation, it was clearly without authority to change that disposition at a subsequent hearing at which no further violation of probation was shown. While the court could have continued the hearing and delayed exercise of its discretion to continue, modify or revoke the probation, as was done in Traylor v. State, Tex.Cr.App., 561 S.W.2d 492, and apparently in Sappington v. State, Tex.Cr.App., 508 S.W.2d 840, that option is not what occurred in this case. The trial court’s revocation of appellant’s probation on August 8 was an abuse of discretion.

The motion for rehearing is granted, the order revoking probation is set aside, and the cause is remanded.

DOUGLAS, Judge,

dissenting.

The majority reverses this conviction on the grounds that the trial court abused its discretion in revoking probation. He had been convicted and his punishment was assessed at ten years, probated. At the hearing on the second amended motion to revoke probation appellant pled true. He admitted that he violated the terms of probation, and no other proof was necessary. The court did not revoke probation at that time. The court was lenient and gave appellant another chance. Later, the court revoked probation on the second amended motion on the grounds that appellant admitted to be true and pronounced sentence on the original punishment that was assessed. This the majority holds to be an abuse of discretion. In doing so the majority does not follow the well reasoned decisions of Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974), and Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978). These cases should be overruled or followed.

For these and other reasons stated in the opinion on original submission, the appellant’s motion for rehearing should be overruled.

      . I have serious reservations concerning the appropriateness of recessing any hearing for eight months as was done in Traylor v. State, supra.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Margaret CHVOJKA, Appellant, v. The STATE of Texas, Appellee.
    No. 56725.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 14, 1979.
    Rehearing En Banc Denied July 11, 1979.

      Jack Bundrant, Tom Webb and Max Parker, San Angelo, for appellant.
    Royal Hart, Dist. Atty. and Ken L. Greer, Jr., Asst. Dist. Atty., San Angelo, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for voluntary manslaughter; punishment is imprisonment for twelve (12) years.

Appellant complains that she twice was placed in jeopardy in violation of the Fifth Amendment of the United States Constitution, and that the court erred in refusing to sustain her plea of former jeopardy and in refusing to allow her to voir dire the jury panel or present evidence on that issue. She also asserts that the court improperly restricted her right to cross-examine a witness to show his bias or prejudice, and that the court’s remarks in the presence of the jury evinced a prejudice against the appellant and her counsel.

It was alleged that on or about July 19, 1976, appellant intentionally and knowingly killed William Sharkey by shooting him with a gun.

Evidence adduced at trial showed that appellant and the deceased were neighbors whose relationship consisted of a series of acrimonious disputes. Other residents of the neighborhood also testified that they had experienced unpleasant confrontations with the deceased. It was undisputed that the deceased was killed when a pistol carried by appellant was fired through a window of the deceased’s home. Appellant’s testimony raised the issues of accident and voluntary manslaughter.

It was shown at a hearing during the first trial that Bascom Hughes, an employee of the Tom Green County Sheriff’s Department, and Chester Derrick, a deputy sheriff, had visited the home of a member of the jury. While there, they had discussed with the juror and his wife the possibility that appellant, if convicted, would receive a probated sentence. It also was shown at this hearing that Hughes subsequently had mentioned — in the presence of several members of the sheriff’s department, including deputy Loil Balentine— that he had discussed appellant’s case with the juror.

Balentine testified as follows concerning what Hughes said in his presence:

“Q What specifically do you recall Hughes saying when he first began to talk about Rogers?
“A The only thing I recall him saying was he and Chester had seen Lester Rogers, I believe, at his residence, and they were speaking about this trial, in reference to the shooting and someone made the remark ‘she would probably get probation’, and Mr. Rogers made a reply that ‘she would not.’
“Q Is that all you recall Mr. Bascom Hughes saying about the incident?
“A That is all I recall.
“Q Did you as a consequence of Mr. Hughes saying that have any conversation with Hughes?
“A Possibly.
“Q What possibly did you say to Hughes?
“A I said something in reference that that was a possible ground for a mistrial.
“Q Say again, as carefully as you can.
“A I said possibly that was grounds for a mistrial if it were true.
“Q Is that all you said to Bascom Hughes, that possibly, if it is true, that would be grounds for a mistrial?
“A I believe that is true.
“Q Did you tell Mr. Hughes at that time not to mention it further or discuss it further?
“A I don’t recall.
“Q You don’t recall whether you told him not to talk about it or not? Sir?
“A I don’t remember whether I did not not; possibly I did.
U * * *
“Q Did you report Mr. Bascom Hughes’ remarks to anyone after he had made them?
“A No, sir, I did not.
“Q Did you discuss Mr. Bascom Hughes’ remarks with anyone after he made them?
“A No, sir.”

Appellant then moved for a mistrial, and the motion was granted.

Prior to appellant’s second trial, which commenced on June 6, 1977, appellant filed a special plea of former jeopardy. See Article 27.05(3), V.A.C.C.P. The court refused either to rule on the special plea or to submit the issue to the jury. See Article 27.07, V.A.C.C.P.

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Wilson. 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Whether there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on whether there is a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

Different considerations obtain, however, when the mistrial has been declared at the defendant’s request. Where the circumstances which occasion a mistrial are not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial ordinarily is assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. United States v. Dinitz, supra; United States v. Jorn, supra; United States v. Crouch, 566 F.2d 1311 (5th Cir.1978); United States v. Kessler, 530 F.2d 1246 (5th Cir.1976); United States v. Beasley, 479 F.2d 1124 (5th Cir.1973). Prosecutorial overreaching will be found where the government, through “gross negligence or intentional misconduct,” caused aggravated circumstances to develop which “seriously prejudicefd] a defendant,” causing him to “reasonably conclude that a continuation of the tainted proceedings would result in a conviction.” United States v. Dinitz, supra, 424 U.S. at 608, 96 S.Ct. at 1080.

There is no evidence in the record to suggest that Hughes and Derrick visited the juror’s home at the prosecutor’s instance. Derrick did not testify at the hearing on appellant’s motion for a mistrial. Hughes testified and admitted that he and Derrick visited the juror’s home to drink coffee, but stated that they were invited by the juror’s wife and had visited there on many occasions. Hughes admitted discussing appellant’s trial with the juror, but stated that nobody from the sheriff’s department or the district attorney’s office instructed him to do so.

In short, the record is devoid of evidence that the prosecutor was guilty of any conduct which could be characterized as prose-cutorial overreaching. The court would have acted properly in overruling appellant’s special plea; the court did not err in refusing to submit the issue to the jury.

Appellant urges that the court improperly restricted her right to cross-examine the witness Loil Balentine. Balentine, a deputy sheriff, arrived at appellant’s home shortly after the commission of the offense. Bal-entine testified that he heard appellant say to Melvin Gray, a friend, “I shot the God damned son of a bitch, and I am not sorry for it.” Balentine testified that there were three or four persons other than himself and Gray present; neither Gray nor any of these other persons testified. Appellant denied making the statement attributed to her by Balentine.

The court refused to allow appellant to cross-examine Balentine concerning what he heard Hughes say about his conversation with the juror in the prior trial. Appellant made a bill of exception in which Balen-tine’s testimony was substantially the same as at the prior hearing on appellant’s motion for a mistrial. Appellant argues that this testimony indicated Balentine’s bias or prejudice against appellant because it showed that he failed to report ap incident of possibly jury tampering.

Great latitude should be allowed the accused to show a witness’ bias or motive to testify falsely against him. Bates v. State (Tex.Cr.App. #58,338, decided S.W.2d 927 (Tex.Cr.App.1978); Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978). However, trial courts have considerable discretion as to how and when bias may be proved and as to what evidence is material for that purpose. Bates v. State, supra; Cloud v. State, supra. The trial judge must balance the probative value of the evidence sought to be introduced against the potential risks of undue prejudice, embarrassment or harassment of either a witness or a party, the possibility of misleading a jury, and the possibility of undue delay or waste of time. Cloud v. State, supra.

That Balentine failed to report what he heard Hughes say might indicate that he was biased or prejudiced against appellant. His failure to report Hughes’ statements to the court does not, however, show any motive for bias or prejudice against appellant. In this respect, the instant case is unlike Randle v. State, supra, and Castro v. State, supra.

In Randle, the conviction was reversed because the defendant was not allowed to show that a witness for the State was under indictment for a different offense. In Castro, the conviction was reversed because the defendant was not allowed to show that a witness had been arrested as a participant in the offense for which the defendant was on trial, that he had been formally charged with an offense arising out of the same transaction, and that none of the charges were pending against him at the time of the defendant’s trial. In the instant case, appellant sought to show conduct on Balen-tine’s behalf which could have been interpreted as showing a bias or prejudice against appellant; appellant has neither alleged, nor was she prevented from proving, the basis for any alleged bias or prejudice of Balentine toward appellant.

Appellant claims she was harmed by Bal-entine’s testimony because he was the only witness to testify that she said she was not sorry for having killed the deceased. Bal-entine’s testimony at a pretrial hearing before the mistrial did not vary from his subsequent testimony as” to what appellant said shortly after the commission of the offense. It was uncontroverted that the deceased was killed by a shot from a gun held in appellant’s hand, and there was much evidence before the jury as to the hostility which existed between appellant and the deceased.

The trial court in its discretion could have allowed appellant to cross-examine Balentine regarding Hughes’ statements. Given the facts of this case, however, the court’s restriction of appellant’s cross-examination of this witness was not an abuse of discretion.

Appellant’s final contention is that the court, by its remarks and actions in the presence of the jury, evinced a prejudice toward appellant and her counsel. The record does not support this contention. Indeed, many of the places in the record to which appellant has directed our attention in connection with this ground of error do not reflect any action on the court’s part. The trial was a bitterly contested one in which the court often found it necessary to reprimand both the prosecutor and appellant’s counsel, but this was done almost invariably outside the presence of the jury. This contention is without merit.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Ronnie E. MATTHEWS, Appellant, v. The STATE of Texas, Appellee.
    No. 57203.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 11, 1979.
    Rehearing En Banc Denied July 11, 1979.
    Roy Beene, Houston, for appellant.

      W. T. McDonald, Jr., Dist. Atty. and W. W. Torrey, Asst. Dist. Atty., Bryan, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for resisting arrest. V.T.C.A. Penal Code, Sec. 38.03. Punishment was assessed at sixty days’ imprisonment and a $1,000 fine, both probated.

Appellant was indicted for aggravated assault upon a peace officer, a third degree felony. V.T.C.A. Penal Code, Sec. 22.02. After a trial in district court he was convicted of the lesser included Class A misdemeanor.

Appellant’s sole contention is that the trial court erred in its application of the law to the facts regarding his claim of self-defense.

The record reflects that appellant made written objections to that portion of the charge. In the body of these written objections it is recited that they were made on May 17, 1977, at 3:15 p. m. The district clerk’s file mark shows that the objections were filed on May 18, 1977, at 8:40 a. m. The docket sheet reflects the following:

“5/18/77 — Charge prepared and objections made by def. Charge read to jury. Torrey argues for State. Cofer argues for def. McDonald closes for State. Jury begins deliberations at 11:15 a. m.

There is no notation on appellant’s objections regarding the trial court’s ruling, nor does the transcription of the court reporter’s notes reveal any ruling by the trial court. In light of the state of the record, we must first determine whether this ground of error has properly been preserved for our review.

Article 36.14, V.A.C.C.P., as pertinent to our discussion here, provides that:

“Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided. The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court, before the reading of the court’s charge to the jury, and are subsequently transcribed, endorsed with the court’s ruling and official signature, and filed with the clerk in time to be included in the transcript. Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defendant to except to the action of the court in over-ruling defendant’s exceptions or objections to the charge.”

We initially note that the statute specifically provides that compliance with its provisions is the only prerequisite to review of objections made to a jury charge. Although one portion of the statute directs that the objections shall be endorsed with the court’s ruling and signature, this portion deals only with objections dictated to the court reporter and later reduced to writing.

The record in the present case reflects that the objections were made in writing and presented to the trial court before the charge was read to the jury. This is sufficient to preserve the ground for our review.

Paragraph 10 of the court’s charge set out the law of self-defense as applicable in this case. Paragraph 10 reads as follows:

“The use of force against another is not justified to resist an arrest that that [sic] the Defendant knows is being made by a peace officer, even though the arrest might be unlawful, unless the resistance is justified under the following circumstances:
“The use of force to resist an arrest is justified:
“a. If, before the Defendant offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest; and
“b. when and to the degree the Defendant reasonably believes the force is immediately necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary.
“Now, therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant resisted an arrest that the Defendant knew was being made by a peace officer, even though the arrest was unlawful, you will find against the Defendant’s claim of self defense; unless you further find, or have a reasonable doubt thereof, that before the Defendant offered any resistance, the peace officer or person acting at his direction used or attempted to use greater force than necessary to make the arrest, and if you further find, or have a reasonable doubt thereof, that the Defendant reasonably believed that force when and to the degree used, if it was, was immediately necessary to protect himself against the peace officer’s use of greater force than necessary, as viewed from the Defendant’s standpoint alone at the time, then you will acquit the Defendant of the offense of resisting arrest; or, if you have a reasonable doubt as to such state of facts, then you will acquit the Defendant and say by your verdict not guilty.” [Emphasis supplied.]

The appellant objected to this charge as follows:

“The Defendant objects to Paragraph 10 of the Court’s charge because the same does not apply the facts and evidence of RONNIE AKINS’ particiation in the incident as being a person acting in a peace officer’s presence and at his direction, since it was through and by the action of the witness Akins that force was applied to the Defendant.”

The record reflects that Ronnie Akins had been summoned by the arresting officers to assist in subduing the appellant. Appellant testified that Akins had immediately started hitting him on the head with a nightstick. According to the appellant, his resistance was the result of attempting to avoid being struck in the head by Akins.

V.T.C.A. Penal Code, Sec. 9.31(c), as pertinent here, provides:

“(c) The use of force to resist an arrest or search is justified:
“(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
“(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.”

The court’s charge first instructs correctly on the law as contained in Sec. 9.31(c)(1), supra. The instruction omits, however, mention of the “other person” when charging on the law as set out in Sec. 9.31(c)(2), supra. Thus, the charge limited the appellant’s self-defense to a response to the peace officer’s use of force only.

In McCuin v. State, 505 S.W.2d 831, this Court reviewed the similar situation of a charge on self-defense in a case where the defendant claimed to have been attacked by multiple assailants. The Court found that it was error to limit the charge on self-defense to the acts of a single assailant when the evidence shows that others were involved in the alleged attack on the defendant. The Court concluded that such a charge unduly limited the jury’s consideration of self-defense, and reversed the case.

We find that the charge in the present case unduly limited the jury’s consideration of appellant’s claim of self-defense to the actions of the peace officer alone.

The judgment is reversed and the cause remanded.


author: ODOM, Judge.

text:
    Ex parte Hampton M. NEWELL.
    No. 60832.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.
    Rehearing Denied July 11, 1979.
    Carol S. Vance, Dist. Atty., and Douglas M. O’Brien, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction application for habeas corpus brought pursuant to Art. 11.-07, V.A.C.C.P.

Petitioner was convicted in November of 1969 in cause number 130562 in the 180th Judicial District Court of Harris County, and was sentenced to 30 years. On November 28, 1978, this application was filed with the convicting court alleging that in 1973 he escaped from the custody of the Texas Department of Corrections, and that a brief time later he was captured in Tennessee, where he was held for several months under a detainer from the Texas Department of Corrections until he was returned to their physical custody on July 27, 1974. He requests relief in the form of flat time and good time credit against his sentence in cause number 130562 for the time he was in constructive custody of the Texas Department of Corrections by virtue of the detain-er placed on him in Tennessee. He cites Ex parte Spates, Tex.Cr.App., 521 S.W.2d 265; Ex parte Jasper, Tex.Cr.App., 538 S.W.2d 782; and Ex parte Williams, Tex.Cr.App., 551 S.W.2d 416.

In Ex parte Williams, supra, petitioner sought good time credits against his state conviction for time spent in federal custody after the state conviction was obtained. In that case no escape was involved. Williams had been convicted in state court and then transferred to federal authorities where he was convicted and incarcerated for over five years in a federal institution before his return to state custody to serve the balance of his punishment on the state conviction. This Court wrote:

“ ‘But for’ the federal conviction, petitioner would have been transferred to the Department of Corrections when the State conviction became final. The federal incarceration precluded ‘physical custody’ but petitioner was still in ‘constructive custody’ of the Department of Corrections. As petitioner did not have his choice of custodian, it is repugnant to Article I, Section 19, of the Texas Constitution to deny him credit for good conduct while in the federal institution.”

Ex parte Spates and Ex parte Jasper, supra, likewise did not involve escape situations. At issue in Ex parte Jasper was good time credit for pretrial incarceration in Louisiana after a detainer was filed by Texas authorities, and the Court wrote:

“In the case at bar the State of Texas placed its detainer upon the petitioners on March 19, 1970; therefore, since the petitioners were in ‘constructive custody’ of the State from that day forward, they were entitled also to consideration by the Texas Department of Corrections for good time credits under Article 6184/ [V.A.C.S.].”

Spates was awarded credit against a Taylor County conviction for time in custody in Harris County and Fort Bend County from the date Taylor County authorities placed a hold on her for that cause.

Although none of these prior cases involved an escape situation, we do not consider that distinction material. The controlling fact in each case was the existence of constructive custody of the petitioner by virtue of a hold or detainer for the cause in which credit was sought. The facts alleged by petitioner here are within that common rule that runs through Spates-Jasper-Williams.

The State filed an answer admitting facts regarding petitioner’s escape, capture, and constructive custody in Tennessee, and the district court entered an order finding that petitioner was in constructive custody of the Texas Department of Corrections from when the detainer was placed on him on September 11, 1973, until he was returned to physical custody on July 27, 1974. We therefore hold appellant is entitled to credit and to consideration for good time credit for the time he was in constructive custody of the Department of Corrections. A copy of this opinion will be sent to the Texas Department of Corrections.

It is so ordered.


author: DALLY, Judge. ROBERTS, Judge, CLINTON, Judge, DOUGLAS, Judge,

text:
    Ex parte Morrell Richard CHARLES.
    No. 59772.
    Court of Criminal Appeals of Texas, En Banc.
    April 25, 1979.
    Rehearing Denied July 11, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is a post-conviction writ of habeas corpus proceeding. Art. 11.07, V.A.C.C.P.

On May 2, 1977, the petitioner was convicted of the offense of delivery of sine-quan, a dangerous drug. The punishment assessed was imprisonment for five years.

The petitioner now asserts that the indictment under which he was convicted is void. If the indictment is void the trial court did not have jurisdiction and the judgment is subject to collateral attack. See Ex parte Russell, 561 S.W.2d 844 (Tex.Cr.App.1978); Ex parte Valdez, 550 S.W.2d 88 (Tex.Cr.App.1977); Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976).

The indictment alleges:

“. . . MORRELL RICHARD CHARLES did then and there knowingly and intentionally DELIVER A DANGEROUS DRUG, NAMELY: SINE-QUAM, A DRUG PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION TO THOMAS CONNOLLY; . . ”

We hold the indictment fails to allege an offense. The indictment would not be sufficient if it merely alleged without naming the drug that the appellant knowingly and intentionally delivered to Thomas Connolly a dangerous drug which could not be dispensed without a prescription. See e. g., Baker v. State, 123 Tex.Cr.R. 212, 58 S.W.2d 535 (1933); Horton v. State, 123 Tex.Cr.R. 237, 58 S.W.2d 833 (1933). By adding the allegation that the name of the dangerous drug is sinequan does not cure the insufficiency, because si-nequan is not listed by name in the Dangerous Drug Act; therefore, it is necessary to allege facts showing why sinequan is a dangerous drug. An indictment should allege all that the State is required to prove. Art. 21.03, V.A.C.C.P., and see Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977).

Drugs which bear a legend: “Caution: federal law prohibits dispensing without a prescription" are dangerous drugs. Art. 4476-14, Sec. 2(a)(3), V.A.C.S. Assuming as the dissenting opinion states that sinequan is a dangerous drug because it bears that legend, it would be necessary for the State to prove that it was a dangerous drug because it bears that legend. Since an indictment should allege all that the State is required to prove, Art. 21.03, V.A.C.C.P., and Benoit v. State, supra, it would be essential for the State to allege that sine-quan is a dangerous drug because it bears the legend: “Caution: federal law prohibits dispensing without a prescription.” The indictment fails to allege an essential element of the offense, because it fails to allege why sinequan is a dangerous drug. The relief sought must be granted.

It is so ordered.

ROBERTS, Judge,

concurring.

I concur with the opinions of Judges Dally and Clinton. I write in response to the dissenting opinion, so that readers may not be led astray by two of its assertions.

The dissenting opinion asserts that an allegation that a drug is prohibited to be dispensed without a prescription is equivalent in meaning to an allegation that a drug bears the federal legend. This is incorrect, for some drugs which do not bear the federal legend are prohibited by our state law from being dispensed without a prescription. See Sections 2.07(b)(1) & (2) and 3.08(d) of the Texas Controlled Substances Act (V.T.R.C.S.A., Article 4476-15); 21 Code of Federal Regulations, Section 329.-20(a)(3) & (4); 21 United States Code, Section 353(b)(3).

A reader also might assume that the certification of Jerome A. Halperin, discussed in the dissenting opinion, is evidence in the record of this case. It is not. A dissenting judge procured this affidavit after the ha-beas corpus transcript had been transmitted to this Court. The State did not offer any proof that sinequan bears the federal legend, and this fact (if it is true) does not appear in the record or in the law. The responsibility for fact-finding in post-conviction habeas corpus cases is cast on the convicting court because original proceedings in this Court are virtually ineffective for providing such fact-finding proceedings. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Cr.App.1967). We permit original proceedings only in extraordinary, rare cases. Ex parte Sheppard, 548 S.W.2d 414 (Tex.Cr.App.1977); Ex parte Norvell, 528 S.W.2d 129 (Tex.Cr.App.1975). The dissent has failed to persuade the court that the need to remedy the perceived failings of the prosecution is sufficient justification for this extraordinary attempt to conduct a fact-finding proceeding in this Court. The court was correct in rejecting this tactic, and I wish to make a public record of that.

PHILLIPS, J., joins in this opinion.

CLINTON, Judge,

concurring.

I agree generally with the majority opinion and in the result it reaches. However, since my approach is somewhat different, I take this opportunity to outline it briefly.

This Court may justifiably attribute to the Legislature awareness of the State and Federal constitutional requirement that to be valid and enforceable its statute must not be so broad or vague that persons “of common intelligence must necessarily guess at its meaning and differ as to its application,” and, also, of the sound reasons that support the rule:

“Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. [Footnote omitted.] Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards to those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges,, and juries for resolution on ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972).

When it enacted the Dangerous Drug Act, Article 726d, V.A.P.C., 1925, as amended, and in revising it in 1973 and transferring the revision to the civil statutes as Article 4476-14, V.A.C.S., the Legislature expressly declared its policy and intent to be, inter alia, “to complement and supplement the Laws and Regulations of the Congress of the United States and the appropriate agencies of the Federal Government affecting such handling, sale, and distribution” of dangerous drugs. Because we all know, the Legislature knew and appreciated that applicable regulations promulgated by appropriate agencies of the federal government are so elusive and difficult to bring to hand, in complementing and supplementing the federal regulations it obviously chose to avoid the vagueness of a category of drugs that are prohibited by federal law from being dispensed without a prescription and opted instead for notice to a person of common intelligence what is manifested by federal law — the legend “Caution: federal law prohibits dispensing without prescription.”

In this fashion, I am confident, the Legislature itself adopted as the means of stating an offense relating to a drug not otherwise described in the act, that it bear the legend just quoted. Failure of the indictment to set forth that prescribed identifying element of the offense renders the indictment void because an offense denounced by state law is not alleged. Compare Loya. v. State, 571 S.W.2d 943 (Tex.Cr.App.1978).

Petitioner is, therefore, entitled to the relief he seeks and I join the Court in granting it.

PHILLIPS, J., concurs.

DOUGLAS, Judge,

dissenting.

The majority grants relief by holding that the indictment is fundamentally defective.

The pertinent part of the indictment alleges that Charles, on or about August 21, 1976, did “knowingly and intentionally DELIVER A DANGEROUS DRUG, NAMELY: SINEQUAM, A DRUG PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION TO THOMAS CONNOLLY:

. ” Appellant first contends that his conviction cannot stand because federal law does not prohibit dispensing the drug without a prescription. Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977), and Jackson v. State, 518 S.W.2d 371 (Tex.Cr.App.1975), are cited in support of this contention. Appellant’s second contention is that the indictment,while alleging that the drug is “PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION,” is defective because it failed to allege that it was a drug which bears the legend: Caution: federal law prohibits dispensing without prescription.

The drug is misspelled in the indictment as “SINEQUAM.” The correct spelling of the drug is “sinequan.” Charles does not appear to have been misled by the typographical error since the indictment is attacked for the first time by post-conviction habeas corpus. In Lute v. State, 166 Tex.Cr.R. 357, 314 S.W.2d 98 (1958), a conviction for possession of heroin was upheld even though the drug was spelled “Herion” in the indictment.

Art. 4476-14, Sec. 2(a), Vernon’s Ann.Civ. St., defines the term “dangerous drug.” One of those definitions is “[a]ny drug or device which bears the legend: Caution: federal law prohibits dispensing without prescription.”

21 U.S.C. § 353(b)(1), provides for drugs that may be dispensed only upon prescription. Moreover, 21 U.S.C., § 353(b)(4) requires prescription drugs to bear the legend “Caution: Federal law prohibits dispensing without prescription.” Thus, the allegation in an indictment that “sinequan” is “A DRUG PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION” is equivalent to alleging that “sinequan” is a drug “which bears the legend: Caution: federal law prohibits dispensing without prescription.” Appellant’s first contention should be overruled.

The Federal Food and Drug Administration (FDA) of the Department of Health, Education, and Welfare (HEW) is the agency responsible for determining what drugs may be dispensed only upon prescription under the Federal Food, Drug, and Cosmetics Act (FFDCA), 21 U.S.C. § 301, et seq. Jerome A. Halperin, Deputy Director, Bureau of Drugs, FDA, certifies that sinequan became an approved drug on September 23, 1969. The approval of that date “stipulates that the drug must be labeled as a prescription drug, bearing on the label the statement ‘Caution: Federal law prohibits dispensing without prescription," . . . ” Halperin further certifies that from September 23, 1969, until the present, sinequan has been restricted to prescription sale. Thus, sinequan was a prescription drug on the date of the offense alleged in the indictment and was required to bear the legend: “Caution: federal law prohibits dispensing without prescription.” The second contention should be overruled.

The indictment charges an offense under the statute. It charges that the dangerous drug sinequan, “A drug prohibited to be dispensed without a prescription”, was delivered to Connolly.

It is not necessary to set out every definition in a statute verbatim. For example, if an indictment alleges that an accused used a firearm in the course of committing a robbery or murder, it does not have to set out the definition of a firearm.

The indictment in the present case left out the words “federal law.” There is no dispute that the drug was prohibited. Charles did not claim lack of notice because he pled guilty to the offense and did not appeal the conviction. This is a waste of judicial time and expense to have another trial in a case like this.

The writer of the concurring opinion apparently believes that a judge should not undertake to find out what the federal law provides — in this case, the drugs which the federal law requires to bear the legend, “Caution: federal law prohibits dispensing without prescription. . . That information was not furnished by either party in the habeas corpus hearing. Would the writer of the concurring opinion hold that judges could neither ascertain nor brief the federal law upon a subject unless it was contained in the briefs of those interested in the case? If such were true, court decisions would do justice in fewer cases, and hearings and trials would be more like a game without regard to what the law provides.

In many cases this Court by authority of the Constitution has ascertained the facts by affidavits to make a decision in a habeas corpus matter.

Article 5, Section 5 of the Texas Constitution provides among other things that “[t]he Court of Criminal Appeals shall have power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.” If the Court can ascertain matters of fact by affidavit, then with stronger reason this Court can ascertain a matter of law in any way that it deems proper. Is the better practice to learn and apply the law or ignore it?

The relief sought should be denied.

W. C. DAVIS, J., joins in this dissent.

      . As indicated in footnote 2 of my dissenting opinion on State’s motion for rehearing in Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979), today I do not read and would not apply literally the admonitory language of Article 21.03, V.A.C.C.P. to test sufficiency of a charging instrument. *

      . Wisdom of the legislative choice is demonstrated by necessity for the dissenting opinion to resort to an affidavit to determine that sine-quan is regarded by the Department of Health, Education and Welfare, Public Health Service, Food and Drug Administration, as a prescription drug.

      . That statute provides:
      “The term ‘dangerous drug’ means any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:
      (1)Tranquilizers.
      (2) Procaine, its salts, derivatives, or compounds or mixtures thereof except ointments and creams for topical application containing not more than two and one-half percent (2½%) strength.
      (3) Any drug or device which bears the legend: Caution: federal law prohibits dispensing without prescription, or the legend: Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.
      (4) Phendimetrazine, its salts, derivatives, or compounds or mixtures thereof.
      (5) Pentazocine, its salts, derivatives, or compounds or mixtures thereof.” (Emphasis supplied).

      .That statute provides:
      “A drug intended for use by man which—
      (A) is a habit-forming drug to which section 352(d) of this title applies; or
      (B) because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such drug; or
      (C) is limited by an approved application under section 355 of this title to use under the professional supervision of a practitioner licensed by law to administer such drug,
      shall be dispensed only (i) upon a written prescription of a practitioner licensed by law to administer such drug, or (ii) upon an oral prescription of such practitioner which is reduced promptly to writing and filed by the pharmacist, or (iii) by refilling any such written or oral prescription if such refilling is authorized by the prescriber either in the original prescription or by oral order which is reduced promptly to writing and filed by the pharmacist. The act of dispensing a drug contrary to the provisions of this paragraph shall be deemed to be an act which results in the drug being misbranded while held for sale.”

      . That statute provides:
      “A drug which is subject to paragraph (1) of this subsection shall be deemed to be mis-branded if at any time prior to dispensing its label fails to bear the statement ‘Caution: Federal law prohibits dispensing without prescription’. A drug to which paragraph (1) of this subsection does not apply shall be deemed to be misbranded if at any time prior to dispensing its label bears the caution statement quoted in the preceding sentence.”

      . Article 21.17, V.A.C.C.P., provides:
      “Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

      . For a detailed discussion of FDA’s authority in this regard, see National Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688 (2d Cir.1975).


author: DALLY, Judge.

text:
    William L. DUBRY and James Ray Hedge, Appellants, v. The STATE of Texas, Appellee.
    No. 57475.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.

      Michael L. Pritzker, Marvin J. Glass, David M. Schneider, R. Brent Daniel and Marvin Leavitt, Chicago, Ill., Jim Vollers, Austin, for appellants.
    Harold L. Comer, Dist. Atty., Pampa, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

The appellants were convicted for possession of more than four ounces of marihuana following a joint trial. Each appellant was assessed a punishment of imprisonment for ten years and a $5,000 fine.

The appellants contend that the evidence is insufficient to sustain their convictions. We agree.

At approximately 10:30 p. m. on February 18, 1976, Kevin Wynn was passing the Lipscomb County Airport near Follett when he saw an airplane land without its landing lights. When Wynn pulled into the airport parking area, the airplane turned around and took off downwind.

Wynn then drove to the home of Gene Born, a farmer, pilot, and manager of the airport, who lived nearby. The two men returned to the airport, but saw nothing out of the ordinary. They then drove out to check some irrigation wells four miles from the airport. While at the wells, they observed an airplane approach and land at the airport.

Born and Wynn immediately returned to the airport and drove onto the runway with their lights off. At first they saw nothing, but when they turned on their lights, an airplane at the north end of the runway turned on its navigation and landing lights and started its engines. The airplane then took off, with Born and Wynn having just enough time to move out of its path.

Born and Wynn then drove to the home of Lipscomb County Deputy Sheriff Walker Freeman. On their way they passed the Terrell Motel in Follett. Born noticed a hew pickup truck leave the motel with two or three passengers and drive toward the airport, and from Freeman’s front yard Born saw a vehicle enter the airport grounds. Freeman gave Born and Wynn a walkie-talkie radio so they could communicate with him in his official vehicle, and the three men proceeded to the airport.

Freeman entered the airport grounds through the south entrance, but quickly left to investigate some lights he saw on a road adjacent to the airport. Born and Wynn drove through the north entrance of the airport, parked, and turned off their lights. After they had been there for five minutes, they saw two figures jump up approximately four hundred feet from them and run northward. Born and Wynn turned on their lights and began to drive toward the area to which these figures had run. They then saw a third figure jump up, climb over the fence, and lie down in a ditch. They radioed Freeman, meanwhile keeping this figure in sight in their headlights.

Freeman returned to the airport in response to the message from Born and Wynn and arrested the man in the ditch, who was the appellant Hedge. Born testified that he had first seen Hedge approximately two hundred feet from where the airplane had been parked. A search of Hedge following his arrest disclosed the registration papers for a 1976 Chevrolet pickup. Freeman testified that he detected the odor of marihuana as he sat in the car with Hedge, and a subsequent search of the coveralls Hedge was wearing when arrested revealed a trace of marijuana in one pocket. A walkie-talk-ie radio was found in the ditch near the spot where Hedge was arrested.

After witnessing Hedge’s arrest, Born and Wynn returned to the north end of the airport runway. There, at the spot where the airplane had been parked, they saw for the first time a large number of burlap sacks. Subsequent investigation disclosed that there were thirty-eight of these sacks, and that they held a total of 1,300 pounds of marihuana.

Following the discovery of the sacks of marihuana, Freeman left the airport to look for additional suspects. Approximately one mile from the airport, he met a 1976 Chevrolet pickup with license plates matching the registration papers found in Hedge’s possession. Freeman stopped this pickup and arrested the driver, the appellant Du-bry. No marihuana was found in Dubry’s clothing or in the pickup he was driving. Freeman did find in the pickup a flashlight with a red flasher and a ground-to-air radio.

Both appellants were from Webb City, Missouri. On the day following their arrest, a 1970 Ford pickup with Missouri license plates was found parked at a roadside park two miles from the airport. Marihuana was found in sweepings taken from the bed of the pickup, to which both appellants had a key.

To establish unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, custody, control, or management over the contraband, and (2) that the accused knew the matter possessed was contraband. Wilkes v. State, 572 S.W.2d 538 (Tex.Cr.App.1978); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976).

Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. Waldon v. State, 579 S.W.2d 499 (Tex.Cr.App.1979); Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979); Wilkes v. State, supra; Harrison v. State, supra. However, a finding of joint possession cannot be justified solely by proof of mere presence of the accused at a place where contraband is being used or possessed. Waldon v. State, supra; Wilkes v. State, supra; Harrison v. State, supra.

Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and that he exercised control over it. Waldon v. State, supra; Wilkes v. State, supra; Harrison v. State, supra. This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband. Waldon v. State, supra; Harrison v. State, supra; Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976).

The evidence establishes that two airplane landings took place at the Lipscomb County Airport on the night in question. Both landings may or may not have been by the same airplane. The marihuana was found near the spot where the second airplane was seen parked, but no one actually saw the marihuana being unloaded. At best, the evidence raises an inference that the occupants of the second airplane unloaded the marihuana at the airport.

The appellant Hedge was first seen two hundred feet from where the marihuana was discovered, running toward the airport fence. He was carrying a walkie-talkie, had the odor of marihuana about him and a trace of marihuana in his pocket, and had recently purchased a new pickup truck. Another pickup truck, to which Hedge had a key, was found two miles from the airport. Marihuana was discovered in sweepings from the bed of the latter truck.

The appellant Dubry was arrested one mile from the airport while driving the pickup recently purchased by Hedge. This pickup was similar to the one Born saw leaving the Terrell Motel and may have been the vehicle Born saw entering the airport as he stood outside Freeman’s house. A flashlight and radio which could have been used to communicate with an airplane were found in the pickup, but no marihuana was found in the pickup or on Dubry’s person. Dubry also had a key to the second pickup in which marihuana sweepings were found.

In order to sustain these convictions for possession of more than four ounces of marihuana, the evidence must establish possession by the appellants of the marihuana found on the airport runway; only a trace of marihuana was found in Hedge’s pocket, and there is no evidence as to the amount of marihuana contained in the sweepings taken from the second pickup truck. The marihuana in question was not located in a vehicle or on premises owned or controlled by either appellant. Neither appellant was ever seen loading, unloading, or otherwise handling the marihuana. There is no evidence linking either appellant to similar transactions. While the evidence strongly suggests that the appellants knew that the marihuana was at the airport, there is little, if any, evidence affirmatively linking the appellants to the marihuana to such an extent that it may be inferred that they exercised care, custody, control, or management over the marihuana. The appellants may very well have been engaged in a conspiracy or attempt to possess the marihuana, but the criminal conspiracy and attempt provisions of the Penal Code do not apply to violations of the Controlled Substances Act. Ex parte Russell, 561 S.W.2d 844 (Tex.Cr.App.1978); Baker v. State, 547 S.W.2d 627 (Tex.Cr.App.1977); Moore v. State, 545 S.W.2d 140 (Tex.Cr.App.1976).

A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting to only a strong suspicion or mere probability is insufficient. Sewell v. State, supra; Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977). While this case is a close one, particularly as to the appellant Hedge, we hold that the evidence creates only a strong suspicion of the appellants’ guilt of the offense charged, and is insufficient to sustain the convictions. See Sewell v. State, supra; Reyes v. State, 575 S.W.2d 88 (Tex.Cr.App.1979); Wilkes v. State, supra.

Given our holding that the evidence is insufficient to sustain the convictions, the constitutional guarantee against double jeopardy precludes further prosecution of this cause. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

The judgments are reversed and the causes are reformed to show acquittals as to both appellants.


author: DOUGLAS, Judge.

text:
    Thomas Berry WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 57992.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.

      Michael D. Byck, Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jayne Wilson, Robert Hinton and John Tatum, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

Thomas Berry Wright appeals his conviction for aggravated assault. Punishment, enhanced by two prior convictions, was assessed at life.

Wright contends that the prosecutor made improper jury arguments, that the court erred in denying his motion to quash the indictment and in overruling his objections to the charge. He also challenges the sufficiency of the evidence. We overrule the contentions and affirm.

Prior to midnight on the evening of May 25,1977, Dallas Police Officers Paul Fletcher and R. K. Ferguson responded to a call concerning a disturbance at an apartment complex. When they arrived at the apartments, they observed four individuals, including Wright, at the top of a flight of stairs. Fletcher approached them from around a building, turned a corner and called out, “Police Officer, freeze.” Wright pulled a pistol from his pocket, pointed it at Fletcher and pulled the trigger three times. The pistol did not discharge. Wright fled but was subsequently apprehended. The pistol was not recovered.

Wright contends the evidence is insufficient because the State failed to prove that the “firearm” was not an antique or curio manufactured prior to 1899. Wright relies on the “firearm” definition in Section 46.01 of the Penal Code which excludes “antique or curio firearms that were manufactured prior to 1899.” In Jackson v. State, 575 S.W.2d 567 (Tex.Cr.App.1979), a prosecution under Section 46.06, we held that the State was not required to prove that the firearm did not meet this antique or curio exception. The logic of Jackson applies here; we see no reason for the State to prove the exception in a prosecution for aggravated assault. Since the evidence is otherwise sufficient, this ground of error is overruled.

He also contends that the indictment and charge must embody the antique and curio exception. In O’Briant v. State, 556 S.W.2d 333 (Tex.Cr.App.1977), we held that an aggravated robbery indictment was sufficient, even in the face of a motion to quash, if it alleged “firearm” without any further definition. Because the State need not prove that the firearm is not an antique or curio, we hold the indictment and charge do not have to include that definition.

Wright contends the prosecution made the following argument based on facts outside the record:

“ . . . You know this Defense lawyer had the benefit of that offense report for cross examination. Now the Defendant may suggest to you that there’s some giant conspiracy in the Dallas Police Department against this man right here and that these two officers made all this up. If the Defendant tries to sell you that, you ask yourselves, ‘Well, I wonder why something didn’t come up about any discrepancies in the way it was put down on the offense report immediately thereafter and the way you heard it from the witness stand today.’
“MR. BYCK: I object to that, Your Hon- or. He’s arguing outside the record.”

The offense report was not introduced into evidence.

Counsel may make comments upon the evidence. This necessarily includes the right to comment upon what logically would be put into evidence. No error is shown.

Complaint is also made that the following argument constitutes a comment on Wright’s failure to testify:

“ . . . The Defense, I anticipate, will say, ‘Well, the State hasn’t proven to you it’s a pistol.’ The State has proven to you that the officers saw an automatic pistol similar to the one that he carries himself. He told you that it looked very much like Defendant’s Exhibit No. 1. Very similar to this. You know that the Defendant escaped. Ask yourselves who had exclusive control over the pistol to be able to bring it to you today.
“MR. BYCK: I object to that. That is a direct comment on the Defendant’s failure to testify. He’s attempting to shift the burden of proof.
“THE COURT: Sustained.”

The court instructed the jury to disregard the statement but denied a motion for mistrial. The prosecutor then continued:

“MR. HINTON: Members of the jury, I am not commenting on the Defendant’s failure to testify. You are instructed and I know that you will follow the law that says you are not to consider that as any evidence of his guilt. . . . ”

A prosecutor may not comment upon a defendant’s failure to testify. Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App.1977); Article 38.08, V.A.C.C.P. However, such comment must be direct; an indirect allusion which might refer to the accused’s failure to testify does not require reversal. Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975); Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App.1974).

In the instant case, there were three other individuals with Wright who could have known the whereabouts of the gun. Wright may have subsequently disposed of the weapon in a variety of ways so that someone else could produce it in court. The court’s instruction to the jury was sufficient to cure any error. Reviewing this argument as a whole, no reversible error is presented.

Wright contends the court erred in overruling his motion to quash the indictment because the indictment did not describe more specifically the “firearm” used in the commission of the offense. In O’Bri-ant v. State, supra, we held that an aggravated robbery indictment which tracked the statutory language and contained the term “firearm” without further definition was not subject to a motion to quash. The same logic applies in the instant case. The indictment charges the offense in the statutory language including the use of the term “firearm” without further specification. The motion to quash was properly overruled.

Complaint is made that the court did not charge the jury that the “firearm” must be operative. Neither the statute nor the definition of deadly weapon in Section 1.07(11) of the Penal Code suggests that a firearm must be operable. In Walker v. State, 543 S.W.2d 634, 637 (Tex.Cr.App.1976), we held that admission into evidence of a forty-five automatic pistol without a firing pin or clip, that was found after a robbery, constitutes sufficient evidence to prove aggravated robbery. The State is required to prove only the use of a deadly weapon; if its proof shows a firearm, it need not prove that it was operable. No error is shown.

Wright next contends he is entitled to instructions on the lesser included offenses of simple assault and reckless conduct. A charge on a lesser included offense is required only when there is evidence which indicates that appellant, if guilty, is guilty only of the lesser offense. Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1973); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974). The State’s case consisted of the testimony of the two police officers at the scene. The testimony of both of them establishes all of the elements of aggravated assault. Wright did not present any evidence. There was no evidence suggesting Wright was guilty only of the lesser offense. No error is shown.

Wright’s final contention is that he was entitled to a charge on circumstantial evidence. The State’s case was fully proved through eyewitness testimony. No charge on circumstantial evidence was required.

There is no reversible error. The judgment is affirmed.

DALLY, J., dissents.


author: CLINTON, Judge.

text:
    Johnny Leon MAY, Appellant, v. The STATE of Texas, Appellee.
    No. 60532.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 27, 1979.

      William A. Dyess, Brownfield, for appellant.
    E. W. Boedeker, Dist. Atty. and Warren J. New, Asst. Dist. Atty., Levelland, Robert Huttash, State’s Atty., Austin, for the State.
    Before DADLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal taken from an order revoking probation and assessing punishment by confinement for a term of five years in the Texas Department of Corrections. Regularity of original and revocation proceedings and sufficiency of the evidence are not questioned. Suffice it to say that on November 10, 1977 appellant entered a plea of guilty to the charge of theft of money over $200.00 and less than $10,-000.00, was assessed punishment at confinement for a term of five years but imposition of sentence was suspended and appellant placed on probation under the usual conditions, one of which was that he commit no offense against the laws of the State of Texas or of any other state or of the United States. April 27, 1978 a motion to revoke probation was filed alleging a violation of that condition of probation in that on or about April 16, 1978 appellant knowingly possessed a useable quantity of marihuana. Hearing on the motion was seasonably held with the consequential sentence to confinement for a term of five years. Appellant’s sole ground of error is that the trial court erred in admitting into evidence over objection of appellant fruits of a war-rantless search of his lunch box in that the search was conducted without consent and without probable cause to conduct it.

Shortly before midnight in Brownfield, Terry County, a deputy sheriff stopped a Volkswagen van matching a description of a motor vehicle communicated to him by radio transmission that was suspected of having been involved in a burglary of another motor vehicle. Appellant was driving the van; it belonged to the parents of a juvenile who was then a passenger in the van. Stopping it, the deputy sheriff had both appellant and the juvenile, the only occupants of the van, get out of it and await arrival of officers of the Brownfield Police Department. One of them, a patrol sergeant who was apparently in charge of the investigation, obtained from the deputy sheriff appellant’s driver’s license, and, in the word of the deputy, took “custody” of appellant and the juvenile. The sergeant then arranged for the juvenile to ride in the police vehicle with him and another officer and for appellant, driving alone in the van, to follow them to the Henson residence. Arriving at the Henson premises, the sergeant asked the juvenile for permission to search the van for stolen tools and the juvenile assented. The conversation with the juvenile was in the presence of and was overheard by an officer who later searched the van. He testified that after driving the van to the Henson premises, appellant remained in his position in the driver’s seat some distance away from the site of the discussion. Neither the searching officer nor anyone else undertook to claim that appellant actually heard the juvenile grant permission to search the van. Moreover, the sergeant who obtained assent from the juvenile did not ask appellant for permission to search nor, so far as he was aware, did any other officer. The searching officer did not seek consent from appellant.

In making his search of the interior of the van, the officer testified he was looking for tools that “might pos’sibly have been stolen from Mr. Henson or others.” He knew that the “stuff” belonging to Henson was marked with his name, and that about a month earlier another pickup had been burglarized of tools that were also “all marked.” But as to the particular kind or type of tools belonging to Henson is obvious from his testimony that the searching officer had not been provided with a description of them. The searching officer began his examination of the van at its rear and worked forward. In the back was a bed with a compartment under it in which he observed several things, apparently including some hand tools, but nothing that was identifiable; that is, the tools and things were not marked — again, the officer was looking for marked tools. Completing his examination of the entire area behind him without finding any tool that was marked, as he made his way toward the driver’s seat with appellant sitting in it, he observed a closed lunch box on the floor right behind that seat. He picked up the lunch box and as he opened it to look into it asked, “Who’s lunch box is this?” Appellant said it was his. Looking into the lunch box the officer saw a number of prescription type medicine bottles and upon examining them discerned that the labels bore the name of appellant, that some of the bottles contained medicine and two had what he believed to be marihuana in them. The officer further candidly admitted that he had no reason to believe that there was marihuana in the lunch box when he picked it up. Appellant was placed under arrest, removed from the van, his person was searched and he was handcuffed.

Meanwhile, Henson had checked his pickup, determined that nothing was missing and communicated that fact to the patrol sergeant. The sergeant walked to the van and relayed that information to the searching officer who, according to the sergeant, had already found the lunch box.

Contending that the juvenile whose parents owned the van could not give a valid consent to search the van when appellant was present and “in possession” of the van that he had been driving, appellant recognizes the contrary holding of this Court in Swinney v. State, 529 S.W.2d 70 (Tex.Cr.App.1975), but makes a forceful presentation that Swinney was wrongly decided. We leave that issue for another day in order to address his second contention.

Appellant also challenges the search of his lunch box on the theory that in light of the circumstances attending the seizure and search of it consent by the juvenile to search the van may not be considered consent to search his lunch box. From authoritative decisions believed to be more than persuasive, we agree.

It must be remembered that the consent given by the juvenile was to a request to “search the vehicle for tools.” It is axiomatic that the limit of the right of officers to search is only coextensive with the particular search consented to. 79 C.J.S. Searches and Seizures § 62, p. 818; Honig v. U. S., 208 F.2d 916, 919 (8 Cir.1958); Davis v. California, 341 F.2d 982, 985, n. 8 (9 Cir. 1965); U. S. v. Dichiarinte, 445 F.2d 126, 129, n. 3 (7 Cir.1971); Mason v. Pulliam, 557 F.2d 426, 428-429 (5 Cir.1977):

“When the basis for a search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects.”

That the lunch box was the property of appellant, as he claimed it was, was immediately accepted by the searching officer and clearly is undisputed. Since the lunch box did not belong to the juvenile, seizing and searching it was not a violation of his right to or expectation of privacy with respect to it. There is absolutely no showing that the juvenile even knew the lunch box was in the van or, knowing that it was, that he possessed some authority in common with appellant over it. In the absence of a demonstration by the State that the juvenile had standing to resist the seizure and search of the lunch box as an invasion of his own Fourth Amendment rights, the juvenile was powerless to consent to the seizure and search of the property of another. In any event, factually it is clear that he did not do so.

But the State argues that once valid consent to search the van was given, the officer could search the entire vehicle and its contents, including the lunch box. In the circumstances of this case, however, given the limited consent to search the van for tools, we believe the State needed to show, as in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) that the juvenile was “a joint user” of the lunch box in order to have authority to consent to a search that included it, 394 U.S. at 740, 89 S.Ct. at 1425. The Frazier principle has been recognized and applied by this Court in, e. g., Lowery v. State, 499 S.W.2d 160, 165-166 (Tex.Cr.App.1973). Thus we are constrained to hold that invasion of the privacy of appellant with respect to his lunch box could not be authorized by the juvenile, as a matter of law, and was not intended to be authorized by him, as a matter of fact.

Furthermore, the minute appellant told the searching officer that the lunch box was his, the officer knew or should have known that he had gone beyond permission to search granted by the juvenile. The fact that the officer made inquiry is indicative of wariness on his part that the consent was not unlimited. That he failed to heed the responsive assertion of right by the appellant led him into an abridgement of rights vouchsafed by the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution.

The nexus between consent of the juvenile to search the van for stolen tools and the seizure of the lunch box for that purpose was broken by the verbal exchange between the searching officer and appellant which revealed the lunch box belonged to him. At that precise point waiver of probable cause by the juvenile to search the van, Bennett v. State, 450 S.W.2d 652, 654 (Tex.Cr.App.1970), even if it initially embraced the lunch box, was rendered ineffective with respect to it. Appellant did not consent to the seizure or search of the lunch box. Thus the warrant requirement of our respective constitutions became operative. Clearly, the officers could not have truthfully articulated requisites for obtaining a search warrant for several reasons, the principal one being that since Henson did not know whether any tools were, in fact, missing there was no probable cause to believe that stolen tools belonging to him were in the lunch box — indeed, even in the van — and while “others” may have had tools stolen a month before, there-is nothing in this record to support even a suspicion they might be in or about the van. Adams v. State, 137 Tex.Cr.R. 43, 128 S.W.2d 41 (1939).

Concluding, as we must, that the war-rantless search of the lunch box was not justified by consent of the juvenile to search the van nor based on probable cause to search the lunch box for tools, we then sustain appellant’s ground of error and hold that admitting into evidence over objection the fruits of the warrantless search of the lunch box was reversible error.

The sentence is vacated, the order revoking probation is set aside and the cause remanded.

      . Reliability of the initial information and credibility of its originator were not examined during the course of the revocation hearing, for the search at issue was based on consent. The alarm was sounded by housewife Henson, reporting that someone was stealing tools from the back of the Henson pickup truck and her husband had left their place in pursuit of a van that she described. As it turned out, however, the VW van being driven by appellant did not contain tools stolen from the Henson pickup for the simple reason that an examination of the pickup by Mr. Henson revealed none were missing — her hue and cry had been sounded mistakenly.

      . Aside from one officer stating his name, the record reveals very little biographical data concerning the juvenile other than being a male.

      . We observe, with pardonable curiosity, that having apprehended persons suspected of burglary of tools reported to be in the van, the officers neither frisked or searched the van nor patted down, frisked, or searched the person of appellant or the juvenile at the scene of their apprehension.

      . For the State, the sergeant testified concerning his knowledge of ownership and possession of the van as follows:
      “Q: I see. Well, at that time did you know that Mr. Johnny Leon May was not the owner of that van?
      A: I didn’t know if he was not the owner of it then. I knew from the past that this juvenile was in possession of it or had control of it all of the time.”

        Another officer who purported to know testified that the van was registered in the names of the mother and father of the juvenile but that he had had possession of it for some length of time.
      Notwithstanding the fact that the officers had in their custody a suspected thief and the record does not indicate that before obtaining his consent to search any one of them ever advised the juvenile of his constitutional and statutory rights, the issue of proper waiver of Fourth Amendment rights by a juvenile according to V.T.C.A., Family Code § 51.09 was not raised in the trial court nor urged upon this Court. See Lovell v. State, 525 S.W.2d 511, 514-515 (Tex.Cr.App.1975) construing its provisions before they were modified by an addition of Subsection (b) and compare B. L. C. v. State, 543 S.W.2d 151, 153 (Tex.Civ.App.—Houston (14th Dist.) 1976) writ ref’d n. r. e., discussing the 1975 modification. See also E-A_ W_ v. State, 547 S.W.2d 63 (Tex.Civ.App.—Waco 1977) and D. B. v. State, 556 S.W.2d 845, 849 (Tex.Civ.App.—Houston (14th Dist.) 1977). See, generally, Benson, “Search and Seizure in Texas Juvenile Justice,” Texas Juvenile Defense Manual, Revised Edition (C.D.L.P., 1978) 19 at 22.

      . “Q: Okay. What particular tools, then, of Mr. Henson’s were you looking for?
      A: (no answer)
      Q: If he thought he was missing tools and you were looking for those tools.
      A: I would say hand tools because that is what he carries in the back of his pickup.
      * * * * * *
      Q: But you didn’t have any idea what tools? He hadn’t even checked to see whether or not he was missing tools?
      A: Yes, sir.
      Q: And you knew he hadn’t checked to see if he was missing tools?
      A: That, I couldn’t say as to what—
      Q: Well, he hadn’t named you any tools he was missing?
      A: No, sir.”

      . On cross-examination the officer only “believed” he was looking in the lunch box when he made the inquiry and received the response, admitted that upon being told the lunch box belonged to appellant he did not obtain consent to search it and, with commendable candor, admitted he was told the lunch box belonged to appellant before he found the marihuana, the possession of which is the basis of the motion to revoke and the order revoking probation.

        . In rejecting a similar contention made by Swinney with respect to a search of her automobile upon consent by his wife, the court pointed to and relied upon Sorensen v. State, 478 S.W.2d 532 (Tex.Cr.App.1972) as authority for upholding a search of his bedroom for marihuana consented to by his parents “when he was present.” A close reading of Sorensen will reveal that he was, indeed, present when a search of the closet in his bedroom was made but the prior written consent to search was executed by the mother at the Killeen Police Department and at sometime thereafter signed by the father. Be that as it may, we find it unnecessary to re-examine Swinney.

      . Indeed, his admission of ownership and its location immediately behind him constitutes the principal proof of the State on motion to revoke probation that he possessed its contents. The judgment revoking probation expressly finds that appellant did, on the occasion in question, knowingly possess a useable quantity of marihuana.

      . The searching officer was the first one to arrive at the Henson residence. Henson returned a minute or two after that; the sergeant and others in his vehicle, followed by appellant in the van, got there about five minutes later. Incredibly, there is not the slightest suggestion in the record before us of the factual basis for the report attributed to Mrs. Henson; we are left to wonder how it was that the Hensons were caused to think that tools were being stolen from the pickup. Also, we note that there is not the smallest hint that Henson was asked to or did identify the van occupied by appellant as the one he had pursued and lost. Further, during the four or five minutes while they were awaiting the arrival of the patrol sergeant and his party, the searching officer discussed with Henson tools that might be missing and learned that Henson did not know “what was missing” — another way of saying, we believe, he did not know whether anything was missing. These circumstances so debilitate the already weak initial report of Mrs. Henson as to render it too feeble to support probable cause for the ensuing search. Moreover, by the time the searching officer found himself empty-handed at the back of the driver’s seat whatever notions of probable cause he had formed were surely fading rapidly and, in fact, the objects of his quest were safely in the back of the Henson pickup.