author: ROBERTS, Judge.

text:
    Albert Rowe BRIGHT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51384.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    Rehearing Denied Oct. 19, 1977.

      Frank W. Sullivan, III, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of heroin. After finding appellant guilty, the jury assessed punishment at twelve years.

Appellant contends (1) that the evidence is insufficient; (2) that the State’s reputation questions at the punishment stage were improperly framed and erroneous; (3) that the trial judge should have disqualified himself; (4) that the State’s chemist was not qualified to testify concerning the physical effects of heroin on the human body; (5) that the penalty provisions of our Controlled Substances Act have been pre-empt-ed by federal statute; and (6) that the trial court should have instructed the jury on the law of circumstantial evidence. We overrule these contentions and affirm.

On February 8, 1974, Haltom City Police Officer Robert Hurley, Jr., along with Fort Worth Police Officer Bobby Percelli and several other area police officers, executed a search warrant for suspected heroin at 2712 Kinman in Haltom City. Appellant was one of the people named in the warrant as the object of the search. Appellant’s wife answered the door at 2712 Kinman. Appellant was not at the house. After searching the house, the officers were directed to the house next door.

The officers went to this adjoining house, where their knock was answered by Karen Coulson, one of the occupants of the house. Her husband Ross Coulson came to the door shortly thereafter and signed a form giving the officers permission to search the house.

Officer Percelli testified that when Karen Coulson first opened the door, and before consent to search was obtained, he saw appellant, whom he recognized as Albert Rowe Bright, Jr., sitting in a large stuffed chair just beyond the front door. As Per-celli approached appellant, he saw appellant “making some movements like he was hiding something in that chair.” Percelli approached appellant and found what he thought to be marihuana in the chair.

After Ross Coulson signed the consent form, the officers conducted a further search. Percelli found some pills under the side of the chair in which appellant was sitting. He also found several small packages under this chair and in a wastebasket just to the left of the chair; tests later showed that these packages contained heroin.

Karen and Ross Coulson both testified that none of the heroin taken in the search belonged to them, although Karen Coulson admitted, as she had to the officers on the day of the search, that she had a small amount of marihuana in the house. Ross Coulson also testified that appellant possessed heroin in his house on the day of the search.

Appellant testified that he knew nothing of the contraband found in and around the chair. He also stated that Karen Coulson was the person sitting in the chair and that she had put the packages of heroin in the wastebasket and under the chair.

Clearly, the evidence is sufficient to support the verdict. The State’s evidence showed that appellant was nearest the heroin and was making furtive gestures when the officers arrived. In addition, Ross Coulson testified that appellant was the possessor of the heroin. Appellant’s first contention is overruled.

Appellant next contends that the State asked improperly framed questions of its reputation witnesses. Specifically, the appellant points to four instances where the State’s witnesses were asked about appellant’s reputation in his community for being a peaceful and law-abiding citizen. Appellant contends that the State was required to frame its questions in terms of appellant’s general reputation, following the language of Art. 37.07, See. 3(a), Vernon’s Ann.C.C.P.

This ground of error is multifarious and in violation of Art. 40.09(9), V.A.C.C.P. Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976). However, since we are able to distinguish appellant’s contentions from each other, we will discuss them on their merits. Art. 40.09(9), supra. Cf. Houston v. State, 506 S.W.2d 907 (Tex.Cr.App.1974).

In support of this ground of error, appellant cites Edwards v. State, 91 Tex.Cr.R. 196, 198, 237 S.W. 933, 934 (1922), where this Court held:

“One seeking to show the good character of his client by proof of reputation must ask as to the general reputation in the community of residence, and a question directed merely to reputation, and omitting the general character thereof, would be objectionable. Branch’s Ann. P.C. p. 115, and collated authorities.”

We have carefully examined the “collated authorities” cited in 1 Branch’s Ann.P.C., Sec. 184, p. 115 (1st Ed. 1916). These authorities do not support the distinction drawn in the Edwards case. In addition, we are unable to find any other authority to support this distinction between “reputation” and “general reputation.”

In Hamman v. State, 166 Tex.Cr.R. 349, 356, 314 S.W.2d 301, 305 (1958), this Court stated:

“Nor do we agree that the reputation testimony should have been excluded because the predicate question did not include ‘among the people who know him best.’ ”

We see no difference between asking a witness about a defendant’s reputation, on the one hand, and about his general reputation, on the other. Certainly this difference in wording is of no greater moment than that urged by the State in Hamman, supra. Accordingly, we overrule the holding in Edwards v. State, supra, and also overrule this contention of appellant’s.

Appellant’s third contention is that the trial judge should have disqualified himself because of his personal bias against the appellant.

As grounds for his allegation of bias appellant directs us to the record, which reflects that prior to trial the trial judge admonished appellant that if appellant did in fact have other charges pending against him (as the State had advised the judge), and if the jury found appellant guilty of this charge, then “I’m going to stack the time on him.” Appellant also points out that the court forfeited his bail on the first day of trial because appellant was late for trial and, although the court set aside the forfeiture, he did so subject to the requirement that appellant serve three days in the county jail.

In overruling a similar contention in Vera v. State, 547 S.W.2d 283, 285 (Tex.Cr.App.1977), this Court held:

“It has been held that the bias or prejudice of a trial judge not based upon interest is not a legal disqualification. Aldridge v. State, 170 Tex.Cr.R. 502, 342 S.W.2d 104 (1961); Templin v. State, 167 Tex.Cr.R. 605, 321 S.W.2d 877 (1959); Williams v. State, 126 Tex.Cr.R. 42, 69 S.W.2d 759 (1934). However, when indicated or shown, any prejudice or opinion of guilt on his part calls for close scrutiny of the trial judge’s rulings. Aldridge v. State, supra; Williams v. State, supra. But bias of a trial judge, standing alone, does not constitute error. An accused could complain of an erroneous ruling made by the trial court as the result of prejudice, but it would be the error in the ruling rather than the prejudice that would give him the right to complain. Bolding v. State, 493 S.W.2d 181 (Tex.Cr.App.1973).”

Appellant complains of no error in the rulings of the trial judge which resulted from his alleged bias. We hold that the trial judge was not disqualified. See also Ortega v. State, 493 S.W.2d 828 (Tex.Cr.App.1973); Williams v. State, 492 S.W.2d 522 (Tex.Cr.App.1973). Appellant’s contention is overruled.

Appellant’s fourth contention is that the trial court erred in allowing the State’s chemist to testify as to the physical effects of heroin on the human body. The chemist testified that each of the packets of heroin was capable of having an effect on the human body. Appellant contends that the chemist was not qualified as an expert on this subject and that the chemist’s testimony inflamed the minds of the jurors.

The chemist, Ronald Clodfelter, was shown to be a criminalist for the City of Fort Worth. He had received a Bachelor of Science degree in chemistry and had been a criminalist for three years. He had done a large amount of research on and analysis of drugs, their properties, and their effects. Like the chemist in Franklin v. State, 494 S.W.2d 825, 827 (Tex.Cr.App.1973), “[h]e was shown to have knowledge far beyond that of a layman, and the trial court was justified in considering that his opinion might aid the jury in an understanding of the subject.” As in Franklin, we hold that the chemist was qualified to testify as he did. See also Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974). Appellant’s fourth contention is overruled.

Next, appellant urges that his motion in arrest of judgment should have been sustained because the penalty provisions of the Texas Controlled Substances Act, Art. 4476-15, V.A.C.S., are in positive conflict with those of the Federal Drug Abuse Prevention and Control Act, 21 U.S.C., Sec. 801, et seq., see especially 21 U.S.C., Sec. 903.

Appellant recognizes that recent authority is directly contrary to his contention. Wilson v. State, 525 S.W.2d 30 (Tex.Cr.App.1975); Reynolds v. State, 548 S.W.2d 733 (Tex.Cr.App.1977), and cases there cited. We decline to overrule these authorities; appellant’s fifth contention is therefore overruled.

Appellant’s final contention is that the trial court erred in failing to charge on the law of circumstantial evidence. Appellant filed a timely objection to the court’s charge which, the record reflects, was overruled by the court before the main charge was submitted to the jury. See Art. 36.14, V.A.C.C.P.; McCloud v. State, 527 S.W.2d 885, 887, n. 1 (Tex.Cr.App.1975).

It is clear that the mere fact of appellant’s proximity to the heroin is not direct evidence of his possession of it; were this the only proof of appellant’s possession, a circumstantial evidence charge would unquestionably be required. Scelles v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623 (1962); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973); Armstrong v. State, 542 S.W.2d 119 (Tex.Cr.App.1976).

Also present, however, is Ross Coulson’s testimony concerning appellant’s possession of the heroin:

“Q [By Mr. Leonard, Prosecutor] All right.
Now, I’ll ask you to tell the jury— did you have any heroin in your home on that day?
“MR. BLANKENSHIP [Defense Counsel]: Objection, Your Honor. That is self-serving.
“THE COURT: Overrule the objection.
“BY MR. LEONARD:
“Q Did you personally have any heroin?
“A No, sir.
“Q In that house?
“A No, sir, I didn’t.
“Q All right. Directing your attention to the Defendant, Albert Rowe Bright, I’ll ask you whether or not he had any heroin in your house? “MR. BLANKENSHIP: Objection to that as self-serving.
“THE COURT: Overruled.
“THE WITNESS: Yes, sir.
“BY MR. LEONARD:
“Q And did you know that he had heroin?
“A Yes, sir, I did.
“Q Had he shown you the heroin?
“A Yes, sir.”

The question is whether this testimony constitutes direct evidence of appellant’s possession of the heroin.

In Curtis v. State, 548 S.W.2d 57 (Tex.Cr.App.1977), this Court held that an experienced narcotics officer is not competent to testify that a powdered substance is heroin, even though he has made a Marquis reagent field test of the substance and obtained a positive reaction. A majority of the Court reasoned that a Marquis test does not positively show that a substance is heroin; it merely shows that the substance is one of several opiate derivatives. The majority also stated:

“[W]e are unwilling to say that an experienced officer can look at a white or brown powdered substance and testify that it is heroin since morphine, codeine, paregoric, other opiates, other controlled substances, and non controlled substances also appear in white or brown powdered form.” Curtis v. State, supra, at 59.

If an experienced narcotics officer may not testify in such a case that, in his opinion, the given substance is heroin, it follows that a lay witness like Ross Coulson may not present such opinion testimony either. In either case, moreover, it seems that since such testimony is neither competent nor probative, it is the equivalent of no evidence at all and hence cannot be considered as direct evidence. Compare, e. g., Lumpkin v. State, 524 S.W.2d 302, 305-306 (Tex.Cr.App.1975).

However, from the record before us, we cannot conclude that Coulson’s testimony in this case is opinion testimony. We can only view it as a statement of fact within the knowledge of the witness. Reed v. State, 112 Tex.Cr.R. 149, 15 S.W.2d 624 (1929); 23 Tex.Jur.2d, Evidence, Sec. 409, pp. 609-610.

In Reed this Court held that a witness could testify that a given substance was whisky, over the objection that such testimony was a conclusion. See also Waffer v. State, 504 S.W.2d 408 (Tex.Cr.App.1974).

Nor can it now be argued that the only way Coulson could have determined that the substance was heroin was by reaching an opinion. Coulson may very well have been told by the appellant that the substance was heroin. Had this been the case, Coulson could have so testified; his testimony would have been admissible as direct evidence. Stein v. State, 514 S.W.2d 927, 933-934 (Tex.Cr.App.1974).

We conclude that Coulson’s statements that appellant possessed heroin constituted competent testimony of a fact, not an opinion. These statements amounted to direct evidence. No circumstantial evidence charge was required. Appellant’s contention is overruled.

The judgment is affirmed.

      . We observe that in Lutz v. State, 146 Tex.Cr.R. 503, 507, 176 S.W.2d 317, 320 (1943), this Court stated: “Reputation [not general reputation] is what the people generally think and state about a person.” (Emphasis added.) Black’s Law Dictionary, p. 1468 (Rev. 4th Ed. 1968) defines reputation as the “fgjeneral opinion, good or bad, held of a person by those of the community in which he resides.” (Emphasis added.)
      We also observe that a number of the cases use the terms “reputation” and “general reputation” interchangeably. See, e. g., Lutz v. State, supra; Prater v. State, 104 Tex.Cr.R. 669, 284 S.W. 965 (1926); Stewart v. State, 148 Tex.Cr.R. 480, 188 S.W.2d 167 (1945); Smith v. State, 162 Tex.Cr.R. 237, 283 S.W.2d 936 (1955).


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Clifford S. BLANSETT, Appellant, v. The STATE of Texas, Appellee.
    No. 52872.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    Rehearing Denied Oct. 19, 1977.

      Buddie J. Hahn, Vidor, for appellant.
    Jim Sharon Bearden, County Atty., and Patrick A. Clark, Asst. County Atty., Orange, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of capital murder. Since the jury answered “No” to the special issues submitted under Article 37.071, V.A.C.C.P., the punishment is imprisonment for life.

A brief summary of the facts, which are without substantial conflict, is necessary. At about 1:00 a. m. on June 28, 1974, Charles Dowden was apprehended and arrested wearing a mask and carrying a gun. He was booked for attempted robbery and placed in the Orange city jail. At approximately 4:00 a. m. on the same morning the appellant and Billy Wayne Dowden went to the Orange city jail and by armed force attempted to release Dowden’s brother, Charles. Billy Wayne Dowden was armed with a pistol, and the appellant was armed with a shotgun. Billy Wayne Dowden, followed by the appellant, entered the building and knocked open the door of the dispatcher’s office; Billy Wayne Dowden, with the pistol in his hand, announced that he had come to get Charles. Police Captain Danny L. Gray immediately grabbed Dowden and wrestled him back through the door into the hallway outside the dispatcher’s office. Dowden freed himself from Gray and a gunshot was heard by the officers inside the dispatcher’s office. Dowden then appeared at the dispatcher’s window and shot at the officers in the dispatcher’s office. A gun battle ensued between Officer Windham, who was in the dispatcher’s office, and Dowden, who was outside in the hallway. During the gunfight Captain Gray was shot and killed. It was later determined that the shot that killed Captain Gray was fired from Officer Windham’s gun. Windham and the other officers in the dispatcher’s office did not see the appellant, although they could hear someone out in the hallway with Billy Wayne Dowden. There is no evidence that the appellant fired his shotgun. Shortly after the gun battle the appellant and Dowden fled from the jail but were later arrested.

In related grounds of error the appellant urges that: the evidence is insufficient to support the conviction for capital murder; the court erred in submitting a charge to the jury which permitted it to find the appellant guilty of capital murder; the court erred in instructing the jury on the theory of causation as it is defined in V.T.C.A. Penal Code, Section 6.04; and the court erred in instructing the jury on the theory of criminal responsibility for the acts of another as it is defined in V.T.C.A. Penal Code, Section 7.02(b). These grounds of error raise the issue of whether the appellant is guilty of capital murder when the victim, a peace officer, was shot by another peace officer who was acting in self-defense, in defense of fellow officers, and to resist the commission or attempted commission of a felony by the appellant and the co-felon, Billy Wayne Dowden. We hold that the appellant may be guilty of capital murder in these circumstances.

The appellant’s fundamental argument is that the felony-murder doctrine does not apply to capital murder in these circumstances and under the theory of the prosecution as charged in the indictment. Many courts have wrestled with the difficult problem of whether the felony-murder doctrine should be applied when the killing is not done by the felon or a co-felon, but is done by another person while resisting the commission of the felony; see the cases cited and annotations, 56 A.L.R.3d 239; but that is not the problem here. We find the appellant, by the application of our statutes to the circumstances of this case, is guilty of capital murder apart from the felony-murder doctrine, if he intentionally caused the death of Gray.

The evidence shows that the appellant along with Billy Wayne Dowden consciously went to the Orange city jail with firearms to use those firearms with a conscious disregard for life; they intentionally engaged in that conduct, as the term intentionally is defined by V.T.C.A. Penal Code, Section 6.03(a). The death of Gray would not have occurred but for the conduct of the appellant and Billy Wayne Dowden, and this conduct was the cause of Gray’s death, as causation is defined by V.T.C.A. Penal Code, Section 6.04(a). The shooting of Gray by Windham was not a concurrent cause of Gray’s death. Chief Justice Traynor, speaking for the California Supreme Court sitting in bank in People v. Gilbert, 63 Cal.2d 690, 704-705, 47 Cal.Rptr. 909, 917, 408 P.2d 365, 373 (1965), rev. on other grounds, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), clearly states the law as it applies in circumstances similar to the circumstances in this case:

“When the defendant or his accomplice, with conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life. Thus, the victim’s self-defensive killing or the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice.”

Also, in People v. Gilbert, supra, Chief Justice Traynor, with reference to his opinion in People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 (1965), said:

“ . . .we recognized, however, that entirely apart from the felony-murder rule, malice may be established when a defendant initiates a gunbattle, and that under such circumstances he may be convicted of murder for a killing committed by another . . . ”

See also Taylor v. Superior Court of Alameda County, 3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131 (In Bank 1970); People v. Peed, 270 Cal.App.2d 37, 75 Cal.Rptr. 430 (1969); People v. Bosby, 256 Cal.App.2d 209, 64 Cal.Rptr. 159 (1967); People v. Podolski, 332 Mich. 508, 52 N.W.2d 201 (1952). Under former Penal Codes the same result in similar circumstances was reached. See Taylor v. State, 41 Tex.Cr. 564, 55 S.W. 961 (Tex.Cr.App. 1900); Miers v. State, 157 Tex.Cr. 572, 251 S.W.2d 404 (Tex.Cr.App.1950).

The evidence would support a conviction either on the theory of appellant’s guilt because of his own acts or of appellant’s guilt because of his responsibility for the acts of Billy Wayne Dowden. However, the charge which was submitted to the jury, when considered as a whole, submitted only the theory of appellant’s guilt because of his responsibility for the acts of Billy Wayne Dowden. The submission of such a charge was error, the appellant argues, because V.T.C.A. Penal Code, Sec. 7.02 does not apply to capital murder cases. Such an argument was rejected in Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976) where a death penalty conviction was upheld and the appellant was guilty of murder because of his responsibility for the acts of another. V.T.C.A. Penal Code, Sec. 7.02.

The refusal to submit to the jury the appellant’s specially requested charge set out in our footnote 1 was not error because the court’s charge did require the jury to find that the appellant intentionally or knowingly caused Gray’s death.

The appellant also complains that the trial court erred in admitting in evidence hearsay statements made by Billy Wayne Dowden. A handgun was admitted in evidence. One of the officers who participated in the investigation of the murder was Edgar Martin, a special agent of the Federal Bureau of Investigation. He testified that after a conversation Dowden led officers to the hidden handgun. The appellant’s complaint is that Martin was also allowed to testify that Dowden said it was the gun which he had used and fired at the jail.

Prior to the admission of this testimony Martin had testified without objection that other officers had been led by Dowden to a road where he said “he had left the gun that he had had at the station that morning.” Independent of the hearsay testimony, there is evidence that a laboratory examination showed bullets and casings found at the jail on the morning of June 28th came from the weapon to which Dow-den led the officers. The appellant also testified that he saw Dowden fire a pistol at the jail. Moreover, Darlene Dowden, Charles Dowden’s wife, who had accompanied the appellant and Billy Wayne Dowden to the scene of the murder at the Orange city jail, testified that she saw Billy Wayne Dowden with a pistol at the city jail. Also, she was with Billy Wayne Dowden when he fled from the jail, drove to the place where he shaved off his mustache, and hid the pistol. The admission in evidence of the hearsay statements made by Dowden was in these circumstances beyond a doubt harmless error. See Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974).

The appellant asserts that the trial court erred in admitting in evidence statements he made to Agent Martin. Since he was in custody and since these statements were not reduced to writing, the appellant argues the statements were inadmissible under the provisions of Art. 38.22, V.A.C.C.P.

Martin was told by the appellant that he did not know why he was in custody because no one could place him at the scene of the murder. Martin told the appellant that he could be placed at the murder scene by Billy Wayne Dowden. The appellant then said if he could be placed at the murder scene he would think about getting his “business straight.” Martin left the room and reappeared at the door with Billy Wayne Dowden. Martin asked Dowden if he were at the police station that morning; Dowden replied that he had been. Martin then asked Dowden who was with him and Dowden pointed toward the appellant and said, “Clifford.” The appellant then said he wanted to make a statement and “get his story down.”

The appellant argues that the statements made in his conversation with Martin amounted to a confession within the holding of the majority in Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973). These statements were not used to impeach the appellant’s trial testimony, as Butler’s statements were so devastatingly used in Butler v. State, supra. The appellant’s trial testimony and his written confession were not inconsistent with any of these statements nor any reasonable inference which could be drawn from these statements. The appellant was placed at the scene of the murder by his written confession, which was admitted in evidence, by his own trial testimony, and by the trial testimony of Darlene Dow-den.

If the appellant’s statements in his conversation with Martin were a confession within the holding of the majority in Butler v. State, supra, the only authority relied on by the appellant, their admission in evidence was harmless error beyond a reasonable doubt. See Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975); Gutierrez v. State, 502 S.W.2d 746 (Tex.Cr.App.1973).

If parts of Martin’s testimony were inadmissible for other reasons, no error was preserved for review on appeal by trial objections. A trial objection that a part of Martin’s testimony was hearsay was not made a ground of error on appeal, and if it had been, it would not present reversible error.

The appellant contends the trial court erred in failing to declare a mistrial when the prosecutor told the jury during argument at the guilt-innocence phase of trial that Dowden had already been convicted of the same offense. Appellant complains of the following argument:

“MR. BEARDEN: . . . He is beyond our right of subpoena and we can’t get any testimony from Captain Gray. Why call Billy Wayne? Do you think a man that has already been convicted that the State of Texas, who will be bound by his testimony, is going to put him on the stand? We had already proved—
“MR. HAHN: Your Honor—
“MR. BEARDEN: —beyond a reasonable doubt—
“THE COURT: Excuse me just a minute.
“MR. HAHN: I want to object, Your Honor. May we approach the bench?
“THE COURT: Yes. (At this point there was an off-the-record discussion at the bench between the Court and counsel, which discussion was inaudible to the Court Reporter and the jury.)
“THE COURT: Ladies and Gentlemen of the jury, you will give no consideration to the statement of Mr. Bearden about a man already convicted, referring to Billy Wayne Dowden.”

Appellant’s motion for mistrial was overruled.

The prosecutor’s argument was clearly improper and not a legitimate response to the appellant’s comment on the absence of Dowden’s testimony. Thornton v. State, 542 S.W.2d 181 (Tex.Cr.App.1976); Bailey v. State, 531 S.W.2d 628 (Tex.Cr.App.1976). Ordinarily, any injury from improper jury argument is obviated when the court instructs the jury to disregard the argument, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonition. Whether the prosecutor’s argument necessitates a reversal is to be determined on the basis of the probable effect on the minds of the jurors under the facts of each case. Spaulding v. State, 505 S.W.2d 919 (Tex.Cr.App.1974). The evidence was overwhelming and uncontradicted that Dowden was the main actor in the murder of Captain Gray. In view of this and the prompt action of the trial court in instructing the jury to disregard the argument, we find that the argument was not so prejudicial that its harmful effect could not be removed by the court’s instruction to disregard. Cf. Spaulding v. State, supra; Marshburn v. State, 491 S.W.2d 663 (Tex.Cr.App.1973); Gibson v. State, 430 S.W.2d 507 (Tex.Cr.App.1968); Carraway v. State, 507 S.W.2d 761 (Tex.Cr.App.1974).

Appellant contends the court erred in admitting into evidence State’s Exhibit No. 17, a photograph of the deceased, for the reason that it was introduced for the sole purpose of prejudicing and inflaming the minds of the jurors and that it had no probative value. Appellant argues that since he stipulated that Captain Gray was wearing his police uniform and was in the course of his duties as a police officer at the time of his death, the photograph was introduced solely to prejudice appellant. When the photograph was offered at trial the State contended it revealed a bruise on the right jaw of the deceased which the State alleged was caused by a blow from Dowden or the appellant.

A photograph that is competent, material, and relevant to the issues on trial will not be inadmissible merely because it is gruesome, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible. Only when the probative value of the photograph is very slight and the inflammatory aspects great will it be an abuse of discretion to admit the photograph. Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972); Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Harrington v. State, 547 S.W.2d 621 (Tex.Cr.App.1977). No abuse of discretion is shown.

Appellant’s last contention is that Article 37.071(b)(2), V.A.C.C.P., is unconstitutionally vague because it gives unlimited discretion to the jury in deciding whether “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” This contention has been answered adversely to the appellant. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975).

The judgment is affirmed.

Opinion approved by the Court.

      . In ground of error No. 1 it is asserted that there is a fatal variance between the allegations of the indictment and the evidence admitted in support of these allegations, but the complaint revealed by the argument under this ground of error is that the evidence will not support a conviction for capital murder.
      In ground of error No. 6 the appellant again argues that the evidence will not support the conviction for capital murder, and also that the court erroneously instructed and permitted the jury to find the appellant guilty of capital murder when he could only be guilty of murder under the “felony-murder rule.” It is further argued that the felony-murder rule is not applicable to capital murder.
      In ground of error No. 7 the appellant complains that in view of the evidence in this case the court should not have instructed the jury on the definition of causation as found in V.T.C.A. Penal Code, Section 6.04.
      In ground of error No. 9 the appellant says the trial court erred in instructing the jury on the provisions of V.T.C.A. Penal Code, Section 7.02(b) because it is not applicable to the offense of capital murder.

        In ground of error No. 8 the appellant complains of the court’s refusal to submit to the jury the following requested charge:
      “That even though you find that a Defendant is criminally responsible under the provisions of this charge for causing a result, you can nevertheless not find a defendant guilty of capital murder unless you find beyond a reasonable doubt that the defendant intentionally or knowingly caused the death of a police officer as capital murder has been defined to you above and that unless you believe beyond a reasonable doubt from the evidence that Clifford S. Blansett intentionally and knowingly caused the death of Danny L. Gray who was then and there a police officer acting in the lawful discharge of a duty and who Clifford S. Blansett knew was a police officer, you will find him not guilty of capital murder.”

      .The indictment in pertinent part alleged that: “BILLY WAYNE DOWDEN, SR. and CLIFFORD S. BLANSETT, acting together did then and there unlawfully, intentionally, and knowingly kill Danny L. Gray by shooting him with a gun, the said Danny L. Gray being then and there a peace officer who was then and there acting in the lawful discharge of an official duty and the said Billy Wayne Dow-den, Sr. and Clifford S. Blansett, acting together, then and there knowing, and being informed that the said Danny L. Gray was then and there a police officer.”

      . V.T.C.A. Penal Code, Section 6.03(a), provides:
      “(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”

      . V.T.C.A. Penal Code, Section 6.04(a), provides:
      “(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”

      . “Now, therefore, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of June, 1974, in the County of Orange and State of Texas, as alleged in the indictment, that the defendant, Clifford S. Blan-sett, had entered into and was attempting to carry out a conspiracy with Billy Wayne Dow-den to commit the offense of implements for escape, as these terms have been defined to you, and you further find that either the defendant, Clifford S. Blansett or Billy Wayne Dowden, did then and there with a gun intentionally or knowingly shoot and thereby cause the death of Danny L. Gray, and you further find that such murder was committed, if it was, in furtherance of the original unlawful purpose of the defendant, Clifford S. Blansett and Billy Wayne Dowden, to commit the offense of implements for escape and was such an offense as should have been anticipated as a result of carrying out the conspiracy to commit the offense of implements for escape, then you will find the defendant, Clifford S. Blansett, guilty of capital murder; but if you do not so believe or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘not guilty of capital murder.’
      “You are further instructed that if you find the foregoing facts beyond a reasonable doubt from the evidence that the offense of murder was actually committed by the separate act of either Clifford S. Blansett or Billy Wayne Dow-den acting on their own separate volition and you believe or have a reasonable doubt that such offense on the part of either Dowden or Blansett was not in furtherance of the original purpose of the defendant, Blansett and Dowden and was not such an offense as should have been anticipated as a result of the carrying out of the conspiracy, then you will acquit the defendant and say by your verdict not guilty of capital murder and proceed to consider whether the defendant is guilty of the lesser included offense of murder.
      “You are instructed that before you can find Clifford S. Blansett guilty of any offense as set forth herein, you must find beyond a reasonable doubt that he was present at the time the particular offense occurred and further that while being present he committed some act in furtherance of the unlawful purpose, if any, of Billy Wayne Dowden, to-wit: that he by words or acts encouraged, aided, assisted or attempted to aid or assist Billy Wayne Dowden to commit, if he did, the offense of ‘implements for escape’. Therefore, unless you believe beyond a reasonable doubt that Clifford S. Blan-sett was present at the time the alleged occurrence took place and that while being present he encouraged, aided, assisted or attempted to aid or assist by words or acts, the said Billy Wayne Dowden to commit the offense of implements for escape, you will acquit the defendant, Clifford S. Blansett, and say by your verdict not guilty.”

      . As pointed out in the Practice Commentary following V.T.C.A. Penal Code, Sec. 19.03, the provisions of V.T.C.A. Penal Code, Sec. 19.-03(a) and Art. 37.071(b)(1), V.A.C.C.P., are inconsistent; a jury having found that a defendant intentionally committed a capital murder to be consistent would have to find that the act was deliberately done. However, the inconsistent answer to the question Art. 37.071(b)(1) reflects only that the jury did not want the death penalty assessed.


author: PHILLIPS, Judge.

text:
    SURETY INSURANCE COMPANY OF CALIFORNIA, Appellant, v. The STATE of Texas, Appellee.
    No. 53437.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.

      Joseph (Sib) Abraham, Jr., Charles Louis Roberts and Duane A. Baker, El Paso, for appellant.
    Tully Shahan, Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is a bond forfeiture proceeding wherein final judgment was entered pursuant to the granting of the State’s motion for summary judgment and appellant seeks to set aside the summary judgment and obtain a hearing on the merits. Specifically, appellant contends the trial court erred in (1) granting appellee’s motion for summary judgment because appellant was denied notice of the summary judgment proceeding and opportunity to be heard and (2) not considering appellant’s answer to the State’s motion for summary judgment and (3) not setting aside the summary judgment.

The circumstances surrounding the instant case are as follows:

1.On November 19, 1975, judgment nisi was entered against the principal, Dennis G. Dean, for failure to appear on November 14,1975, and against appellant surety, Surety Insurance Company of California;

2. Citation was issued November 19, 1975, and was served on appellant surety through its registered agent, Irwin Salman-son, in Travis County on February 13,1976;

3. On March 17, 1976, the State filed a motion to set a hearing on a motion for summary judgment, and the court ordered a hearing for April 14, 1976, at 1:30 p. m. The certificate of service reflects that a copy of this motion and order was mailed to Irwin Salmanson on March 22, 1976;

4. A general denial as an original answer to the judgment nisi was filed on April 2,1976, by Joseph (Sib) Abraham, Jr., as attorney for appellant surety;

5. The plaintiff’s motion for summary judgment was filed April 2, 1976, and a hearing on the motion was set for May 21, 1976, at 10:00 a. m. This is the only recorded copy of the motion for summary judgment which appears in the record. The certificate of service dated April 7 and file marked that day shows a copy of the motion for summary judgment which contained notice of the May 21 hearing was sent to Mr. Arturo Gonzalez in Del Rio, Texas, who was attorney for principal Dean;

6. Appellant’s answer to the motion for summary judgment was filed in Yal Verde County at 11:05 a. m. May 21;

7. On May 21, 1976, the trial court granted the State’s motion for summary judgment and the order so holding was signed and filed on June 3,1976. The order recites the trial court did not consider the appellant’s Answer to Plaintiff’s Motion for Summary Judgment because same was not filed at least one day prior to the date of the hearing.

Appellant contends the trial court abused its discretion in not considering the Answer to the Motion for Summary Judgment and the trial court erred in granting the motion for summary judgment because the State did not comply with the requirements of Rule 166-A, Texas Rules of Civil Procedure.

Rule 166-A provides in part:

“(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The right to summary judgment exists only by virtue of Rule 166-A, supra, and a movant must comply with all of the terms of the rule in order to be entitled to its benefits. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); Kain v. Neuhaus, 515 S.W.2d 45 (Tex.Civ.App.1974, no writ history). Rule 166-A(c) requires a motion for summary judgment be served at least ten days before the date of the hearing on the motion. It has been held that a party may waive the ten day notice requirement if he receives notice and appears at the summary judgment hearing and does not request additional time or a continuance and does not file an affidavit under Rule 166-A(f), Texas Rules of Civil Procedure. Carr v. Densford, 477 S.W.2d 644 (Tex.Civ.App.1972, no writ history); Bellah v. First National Bank of Hereford, 474 S.W.2d 785 (Tex.Civ.App.1971, writ ref’d n. r. e.); Chalkley v. Ashley, 392 S.W.2d 752 (Tex.Civ.App.1965, no writ history). A party with at least ten days’ notice of the hearing date on a motion for summary judgment may not be heard to complain on appeal because the motion for summary judgment and order setting the hearing are filed less than ten days before the hearing. Bowser v. Coca-Cola Company, 509 S.W.2d 688 (Tex.Civ.App.1974, writ ref’d n. r. e.). See also Swinford v. Allied Finance Company of Casa View, 424 S.W.2d 298 (Tex.Civ.App. 1968, writ dism’d, cert. denied 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 259).

Appellant contends he did not receive notice of the May 21 hearing and has never been served with a copy of the State’s motion for summary judgment, although appellant, in his brief, concedes on May 18 he received informal notice that a motion for summary judgment had been filed. There is nothing in the record to show appellant ever received notice of the summary judgment hearing on May 21. We do not agree with appellee’s contentions that notice to Irwin Salmanson of the April 14 hearing constituted notice of the May 21 hearing and that appellant’s act in mailing an answer to the motion for summary judgment on May 18 shows appellant had notice of the May 21 hearing. We cannot consider exhibits A through G attached to appellee’s brief as these papers are not part of the official record and do not constitute a supplemental transcript under Rule 428, Texas Rules of Civil Procedure. See Phillips v. Latham, 523 S.W.2d 19 (Tex.Civ.App.1975, writ ref’d n. r. e.). The record shows appel-lee did not comply with the ten day notice requirement of Rule 166-A(c) and appellant has not waived the right to complain that he did not receive notice. The issue now before us is whether such noncompliance renders the summary judgment proceeding invalid.

In view of appellant’s absence from the May 21 hearing and the trial court’s refusal to consider appellant’s answer to the motion for summary judgment, appellant has not been given an opportunity to be heard, to defend and assert his interest, and to present his objections to the summary judgment proceeding. Under these circumstances, we conclude that appellant has not been afforded due process of law. Read v. Gee, 551 S.W.2d 496 (Tex.Civ.App.1977); Ex parte Sturdivant, 551 S.W.2d 144 (Tex.Civ.App.1977). The want of due process renders the summary judgment proceeding a nullity and the order granting the motion for summary judgment invalid.

Appellee contends the error in failing to comply with Rule 166-A(c) is harmless in view of the fact that appellant filed a general denial to the judgment nisi. We are not here concerned with the validity of the final judgment except insofar as judgment was entered pursuant to a summary judgment proceeding at which appellant was not present and to which appellant was not afforded the opportunity to present his objections. The fact that a final judgment may again be entered against appellant cannot defeat appellant’s expectations of due process.

The judgment is reversed and the cause remanded.

ROBERTS and ODOM, JJ., concur in the results.


text:
    George GARNER, Appellant, v. The STATE of Texas, Appellee.
    No. 54184.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.
    Phillip D. Hardberger, San Antonio, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for a violation of Proclamation No. E-18 of the Parks and Wildlife Commission. The appellant was found guilty of the offense in a Justice of the Peace Court, and upon appeal by trial de novo to the County Court of Zavala County the trial judge found the appellant guilty and assessed a fine of $125.00.

Appellant’s sole contention is that Proclamation No. E-18 is void as unconstitutional. We need not address appellant’s contention since we hold that the complaint is fundamentally defective and reverse. See Article 40.09(13), Vernon’s Ann.C.C.P.

The appellant was arrested on November 23, 1975, for hunting on the Nueces River bed. The appellant admitted the commission of the offense, but has consistently urged the unconstitutionality of the proclamation as his defense.

Section 1.07 of Proclamation E-18 states in part:

“Open seasons are given by their opening and closing dates and include all days between such opening and closing dates. There is no open season on game animals, game birds or fur-bearing animals on State game preserves, statutory wildlife sanctuaries, United States wildlife sanctuaries, within the corporate limits of any city and on public roads and highways and rights of way while such roads are under construction, and in State-owned river beds in Uvalde, Dimmit and Zavala Counties including, but not limited to, the Nueces and Frio Rivers.”

Thus, the elements of the relevant portion of Section 1.07 are as follows:

1) No open season for
a) game animals,
b) game birds, or
c) fur-bearing animals,
2) on (or in or within)
a) State game preserves,
b) statutory wildlife sanctuaries,
c) United States wildlife sanctuaries,
d) the corporate limits of any city,
e) public roads and highways and rights-of-way of such public roads and highways while such roads are under construction, or
f) State-owned river beds in Uvalde, Dimmit and Zavala Counties, including but not limited to, the Nueces and Frio Rivers.

The complaint, omitting the formal parts, states that the appellant:

“. . . did then and there unlawfully hunting in a closed season to wit: the Nueces.”

It is obvious that the complaint totally fails to allege what the appellant was hunting. Moreover, the word Nueces is by itself insufficient to allege where the appellant was hunting. Therefore, the State’s confession of error is well founded. The absence of what and where the appellant was illegally hunting renders the complaint fatally defective. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

The conviction is reversed and the prosecution under this complaint is dismissed.

      . The South Central Texas Hunting, Fishing, and Trapping Proclamation No. E-18 was enacted under the authority of Article 978 J—1, Section 2. Cf. Section 61.054, V.T.C.A., Parks and Wildlife Code. Section 12.01 of the proclamation provided that the penalty for violation of the proclamation was a fine of not less than twenty-five nor more than two hundred dollars.

      . As stated in note 1, supra, this proclamation was enacted under Article 978 J—I, Section 2. Article 978 J-I et seq. was referred to as the Uniform Wildlife Regulatory Act. See Acts 1967, 60th Leg., p. 1959, Ch. 730. As of September 1, 1975, the Uniform Wildlife Regulatory Act was amended and is presently Ch. 61, Sections 61.001 et seq., V.T.C.A., Parks & Wildlife. Since the offense occurred after the amendment of the Act, it is not clear whether the proclamation in question was impliedly repealed as of September 1, 1975. Section 61.004 appears to address this problem. Moreover, Acts 1975, 64th Leg., p. 1805, Ch. 545, Sec. 3, states that the Act “. . .is intended as a recodification only, and no substantive change in the law is intended. . .” We shall therefore assume, without deciding, that Proclamation No. E-18 was still in force on November 23, 1975. It should be noted, however, that Proclamation No. E-18 has been superceded by the Statewide Hunting, Fishing and Trapping Proclamation No. A-5, 1977-78, adopted by the Texas Parks and Wildlife Commission on April 15, 1977. Part I, Section .008 of Proclamation No. A-5 includes an absolute prohibition on the hunting of game animals, game birds, or fur-bearing animals in State-owned river beds in Uvalde, Dimmit and Zavala Counties including but not limited to the Nueces and Frio Rivers. Pursuant to Section 61.202, public notice of this proclamation was given and the Commissioners Courts of Uvalde and Dimmit Counties have approved the proclamation. The Commissioners Court of Zavala County disapproved Section .008 of the proclamation.


author: DAVIS, Commissioner.

text:
    Thomas Ray O’BRIANT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54869 and 54870.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.

      Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty. and Gary M. Love, Dan Garrigan and Gerry Holden, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appellant was convicted, on his pleas of guilty before a jury in a joint trial, of the offenses of aggravated robbery (Cause No. 54.869) and attempted murder (Cause No. 54.870). Punishment was assessed at thirty years and twenty years, respectively.

While the sufficiency of the evidence is not challenged, a brief review of same is deemed necessary in order that appellant’s contentions can be discussed with greater clarity.

On September 26, 1976, at about 9:30 p. m., appellant entered Chili’s Restaurant in Dallas, sat down at a table, placed his order with the waitress, and asked her to have the manager come out and talk to him. Bob Gibson, assistant manager of the restaurant, went to appellant’s table, where appellant produced a pistol and pointed it at Gibson. Gibson “bolted” out the door and called police from a convenience store across the street.

In the meantime, appellant grabbed Shari Swift, a waitress, and demanded money while exhibiting the pistol. Appellant obtained a sum of money and then walked with Swift to the back door of the restaurant, where he released her.

The record further reflects that Richard Mitchell, an employee of Chili’s, was returning to the restaurant on the night in question. As he opened his door in the parking lot, he observed the window glass shatter and felt something strike his neck. He saw a man fleeing, but did not give chase. The evidence showed that appellant had shot Mitchell in the neck with a .38 caliber pistol while fleeing the scene of the robbery.

Appellant contends that the court erred in both causes in overruling his motions to quash the indictments. In the pertinent averment in the indictment charging appellant with aggravated robbery, it was alleged that appellant committed the offense by “using and exhibiting a deadly weapon, to wit: a firearm.” In the indictment charging attempted murder, appellant’s complaint is directed to that portion of the indictment charging him with having committed the offense by shooting the complainant “with a firearm.”

Appellant urges that the use of the word “firearm” is too general and vague and does not put an accused on notice of the charges against him. Appellant urges that the indictment should have specifically alleged that the firearm used was a pistol.

The pertinent portions of V.T.C.A. Penal Code, Sec. 29.03, “Aggravated Robbery,” provide:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he
(2) uses or exhibits a deadly weapon.”

The new Penal Code in Chapter 1, “General Provisions,” sets forth “Definitions” in V.T.C.A. Sec. 1.07, which provides in pertinent part:

“(a) In this code:
(1) ‘Deadly weapon’ means:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

In Walker v. State, 543 S.W.2d 634, a question was raised on appeal from a conviction for aggravated robbery case as to whether the instrument used was a “firearm.” There we noted that “while it appears that the definition of firearm [set forth in V.T.C.A. Sec. 46.01(3)] is designed for Chapter 46, ‘Weapons,’ in Title 10, ‘Offenses Against Public Health, Safety, and Morals,’ we find that the definition furnishes guidance in determining whether the weapon in the instant case is a ‘firearm.’ ” V.T.C.A. Penal Code, Sec. 46.01, provides in pertinent part:

“In this chapter:
4c ⅝ ⅜ ‡ ⅜ %
(3) ‘Firearm’ means any device designed, made or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.”

In Mosley v. State, 545 S.W.2d 144, reversal resulted in an appeal from a conviction for aggravated assault, this Court finding that a “B.B. gun” whose use was not calculated to produce death or serious bodily injury and which was not used to strike victim was not a “deadly weapon” and thus the assault by use of such a “B.B. gun” was not aggravated by use of deadly weapon. It was noted in Mosley that the gun in question was a spring activated air gun and that evidence was produced at trial that such a gun did not meet the statutory definition of a firearm.

In Dickson v. State, 113 S.W.2d 528, a 1938 opinion by the Court of Criminal Appeals, it was held that an indictment charging that accused did voluntarily and with .malice aforethought,Hill deceased by shoot..ing him, with a gun sufficiently described the weapon used, in the, comniission of the offense.

We find “firearm” to be far less vague and general than the word “gun.” It could reasonably be urged that the word “gun” is broad and general enough to include such diverse instrumentalities as a “B.B. gun,” a “blow, gun,” a “pop gun” or even a “grease .gun.” Clearly, the word “firearm” has a . much more limited, meaning.

We find .that the indictments in question charge the commission of the offenses “in ordinary, and concise language-in such a manner as . to enable a person of common understanding to know what , is meant, and ,with that degree of certainty that.will give the.defendant notice of the particular offense with -which he is charged.” Art. 22.11, V.A.C.C.P.

The court did not err in overruling appellant’s motions to quash the indictments.

Appellant. urges that, reversal of both convictions should result from the court’s failure to grant a mistrial as the result of the following argument by the prosecutor:

“I want you to think about the time you have read in the paper or you’ve seen on television about the crimes in our, community. .About people .getting shot up. About people getting, robbed. About people getting . . . .”

Appellant’s objection to the argument was sustained .and,the jury, was instructed .to disregard. Motion for mistrial was overruled.

Appellant urges that the argument was outside the record, prejudicial and. constituted a plea to the jury to assess additional .punishment based .upon its consideration of the crjme rate.

In Gholson v. State, Tex.Cr.App., 542 S.W.2d 395, complaint was made of the argument, “I don’t recall when the last person was electrocuted. I do know that .since .the last person was there has been a hundred percent increase in crime.” This .Court held that while the prosecutor exceeded the scope of proper response to defense counsel’s argument that the death ..penalty was. not a deterrent, the court’s .prompt action in sustaining the objection ■and instruction to the jury to disregard .rendered.the error harmless.

The argument complained of in the instant case clearly is not as prejudicial and harmful as the one in Gholson.

We would be avoiding reality to not recognize that jurors have read and heard of murders and robberies through the news media. In Cunningham v. State, Tex.Cr.App., 484 S.W.2d 906, and Holloway v. State, Tex.Cr.App., 525 S.W.2d 165, arguments similar to .the one complained of herein were held to be proper pleas for law enforcement. Error,, if any, was rendered .harmless by .the court’s prompt action in sustaining the objection and instructing the jury ,to disregard.

Appellant contends that.his conviction for the offense of attempted murder was barred by the “carving doctrine” since the robbery -and shooting constitute a single continuous criminal transaction.

Appellant cites Ex parte Evans, Tex.Cr.App., 530 S.W.2d 589. The Tacts in Evans were that the. defendant produced a gun at the scene of the crime, took the victim’s wallet, shot the victim in the stomach, forced the victim to run away, and then .stole the victim’s automobile. Appellant .-was first - convicted of robbery .and at a subsequent date was, tried and convicted for theft of the automobile. This Court held that-the continuous nature of the assaultive .action by the defendant would have permitted prosecution for. one.pífense, robbery, and that the prosecution for theft was barred by the carving doctrine.

In reviewing recent-cases interpreting the doctrine of carving, this Court in Hawkins v. State, 535 S.W.2d 359 said, “The common factor has been an uninterrupted and continuous sequence of events or as-saultive acts directed toward a single victim.” See Ex parte Birl, Tex.Cr.App., 545 S.W.2d 169.

The instant case is more like Harris v. State, Tex.Cr.App., 516 S.W.2d 931, where the defendant left his car, entered a service station and robbed the attendant. Upon returning to his car, defendant was approached by a police officer, who received fatal gunshot wounds in a scuffle with the defendant. This Court held that two separate and distinct transactions transpired, the robbery of the station attendant and the shooting of the officer, and that improper carving did not result in charging the defendant with murder and robbery.

In Lamberson v. State, Tex.Cr.App., 509 S.W.2d 328, and Ex parte Caldwell, Tex.Cr.App., 537 S.W.2d 265, the victim in two assaultive acts was the same but the two offenses were not committed at the same place and there was a time lapse between the two attacks. It was held under these circumstances that the State did not improperly carve two offenses from the same transaction.

In a very recent case by the United States Supreme Court in Harris v. Oklahoma, - U.S. -, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), it was held that a defendant convicted under a state law requiring proof of the underlying felony of robbery with firearms in order to establish the intent necessary for a felony murder conviction was protected by the Double Jeopardy Clause against a subsequent charge of robbery with firearms, since the Double Jeopardy Clause bars prosecution for a lesser crime following conviction of a greater crime that could not have been obtained without conviction of the lesser crime.

The distinction in Harris v. Oklahoma, supra, and the instant case is readily obvious. The conviction for attempted murder was not dependent upon proof of robbery in the case before us. As in Harris v. State, supra, there were two victims and two separate and distinct transactions. We find there was no improper carving involving double jeopardy.

The judgments are affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Saul Aguilar HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 55121.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.

      Phil Harris, Weslaco, for appellant.
    Oscar Mclnnis, Dist. Atty., and Fidencio Guerra, Jr., Asst. Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On January 14, 1975 appellant plead guilty in a bench trial to the offense of burglary of a habitation and was assessed punishment of ten (10) years. The imposition of the sentence was suspended and appellant was placed on probation subject to certain conditions, including:

“(a) Commit no offense against the laws of this State or of any other State or of the United States .
<< * * *
“(g) Remain within the limits of Hidalgo County, Texas, unless given permission to leave therefrom; Defendant shall return to the Republic of Mexico and not return to the United States illegally during the period of his probation . . . .”

On August 28, 1975 the State filed a motion to revoke probation alleging that on August 26,1975 appellant was in the city of Mercedes, Texas, in violation of condition (g) that he return to Mexico and not return illegally to the United States.

On September 15, 1975 a hearing was held on said motion. After three State’s witnesses were heard, the court recessed the hearing to allow the State to check authorities on the admissibility of certain evidence. On September 18,1975 appellant filed a motion demanding resumption of the hearing immediately. It was denied. On October 27, 1975 the hearing resumed and at its conclusion the court revoked probation because appellant had violated condition (g) as alleged in the revocation motion. Sentence was imposed and notice of appeal was given.

On appeal appellant contends the court abused its discretion in revoking probation and advances five grounds of error. He contends he was denied a speedy trial, the evidence was insufficient to support revocation, that the court erred in admitting certain oral statements, that condition (g) was contradictory and ambiguous, and that the court had no jurisdiction to impose such condition.

The right of an accused in a criminal case to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is applicable to the states by virtue of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973). There is also a corresponding guarantee independently set forth in the Texas Constitution. See Article I, § 10, State Constitution, Vernon’s Ann.St. See also Article 1.05, Vernon’s Ann.C.C.P.

Further, there can be no question that a probationer is entitled to a speedy hearing with regard to revocation proceedings. Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975); McClure v. State, 496 S.W.2d 588 (Tex.Cr.App.1973); Hilts v. State, 476 S.W.2d 283 (Tex.Cr.App.1972). See also Newcomb v. State, 547 S.W.2d 37, 38 (Tex.Cr.App.1977) (Concurring Opinion).

Article 42.12, § 8(a), Vernon’s Ann.C.C.P., provides in 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. . ” (Emphasis supplied.)

This statute requires a motion by the defendant to trigger its provisions. See Newcomb v. State, supra (Concurring Opinion). If such motion is filed and there is a failure to meet the twenty days requirement, the revocation motion must be dismissed. Ex parte Trillo, 540 S.W.2d 728 (Tex.Cr.App.1976).

In the instant case there was a revocation hearing within twenty days, so there was no need for a defense motion. After hearing three witnesses on September 15, 1975, the court recessed the hearing to permit the State to research the authorities concerning the admissibility of certain evidence. The hearing was not resumed until October 27, 1975, despite a defense motion on September 18, 1975, demanding resumption of the hearing. At the resumed hearing the State recalled one witness and called one new witness.

Appellant’s complaint is directed to the delay between September 15 and October 27.

First, we observe that Article 42.12, § 8(a), supra, provides a revocation hearing may be continued for good cause. See also Article 29.13, Vernon’s Ann.C.C.P., which provides a continuance or postponement may be granted upon motion of either party after the trial has begun. Such motion for continuance is addressed to the sound discretion of the court. Cooper v. State, 509 S.W.2d 565 (Tex.Cr.App.1974); Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972); Worton v. State, 492 S.W.2d 519 (Tex.Cr.App.1973). Besides these statutory provisions, there are constitutional considerations.

A “balancing test” for the determination of the federally protected constitutional right to a speedy trial in which the conduct of the prosecution and the defendant is weighed was set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971). This “balancing test” has also been applied to the state protected constitutional right to a speedy trial or to a speedy hearing on revocation motions. Some factors that the court should consider in applying the “balancing test” are: (1) length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. See Barker v. Wingo, supra; Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973); McKinney v. State, supra. In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), it was made clear that none of these factors have “talismanie qualities” and, in particular, that a showing of prejudice is not sine qua non to demonstrating a denial of the right of speedy trial. See also Davison v. State, 510 S.W.2d 316, 319 (Tex.Cr.App.1974); Ross v. State, supra (footnote # 1).

As to the length of delay, it is observed there was a delay of forty-two days before the hearing was resumed. As to the reason for delay, the record shows only a recess to allow the State to research authorities. The record is silent as to the reason for the continued delay and does not support any deliberate effort by the prosecution to delay the revocation hearing.

While a new State’s witness was called on October 27th, there is nothing to indicate the delay was to obtain such witness. It cannot be said that the delay was such as to demand a per se determination of a violation of the constitutional right to a speedy revocation hearing. Haas v. State, 498 S.W.2d 206, 211 (Tex.Cr.App.1973).

The appellant did demand a resumption of the hearing which was denied. As pointed out in Barker v. Wingo, supra, a defendant’s assertion of or failure to assert such right is only one of the factors to be considered in making an inquiry into whether there has been a deprivation of the right to a speedy trial.

In determining prejudice to a defendant, we must consider the interest of a defendant which the speedy trial right was designed to protect: (1) to prevent oppressive pre-trial incarceration; (2) to minimize anxiety and concern of the defendant; (3) to limit the possibility that the defense will be impaired.

The appellant asserts in his brief he was held in jail for forty-two days pending the second hearing and that he (1) was kept from gainful employment; (2) his liberty was interfered with; (3) his finances were drained; (4) his association with friends, relatives, and employers was being curtailed.

Most of these assertions are not supported by the record. We cannot conclude that appellant has made a sufficient showing he was prejudiced, if he was. Haas v. State, supra; McKinney v. State, supra.

Having considered the balancing test of Barker v. Wingo, supra, we conclude that appellant was not denied his right to a speedy revocation hearing. See George v. State, 498 S.W.2d 202 (Tex.Cr.App.1973); McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973).

Next, appellant challenges the sufficiency of the evidence to support the revocation. Alfredo Trujillo, Hidalgo County probation officer, testified he explained the conditions of probation to the appellant on January 14, 1975 and informed appellant he was not allowed to reenter the United States illegally. Delbert Guy, assistant officer in charge, United States Immigration and Naturalization Service, Harlingen, had the care and custody of appellant’s file, which showed appellant had been voluntarily deported six times and on the seventh time was formally deported to Mexico on January 30, 1975 after prosecution in United States Magistrate’s Court in Brownsville on January 22, 1975. He explained the requirement of application for admission to the United States by one who has been deported and testified that if there had been an application made by appellant it would be in appellant’s file, but there was none. The trial court also took judicial notice of the federal law relating to the legal admission of a deported alien to the United States.

George Watts, Mercedes city police officer, testified on August 26, 1975 he saw a car run a red light in Mercedes and he stopped the vehicle. Appellant was a passenger. Upon inquiry appellant stated he was from Mexico and he had no green card or other papers to show he was legally in the United States. Amoldo Rodriquez went to the scene of arrest, recognized the appellant from Rodriquez’s investigation of a burglary of a habitation. Based upon information he had previously received about deportation, he called the Border Patrol.

We conclude that the evidence is sufficient to support the order revoking probation. Cf. Aldana v. State, 523 S.W.2d 951 (Tex.Cr.App.1975). We further note the evidence reflects a violation of condition (a) as well as condition (g) although condition (a) was not alleged in the revocation motion.

Further, appellant contends the court erred in admitting into evidence statements made by appellant to Officer Watts at the time the car in which he was a passenger was stopped. Watts first inquired if appellant had any identification and he answered in the negative. When asked if he was from Mexico, he answered in the affirmative. He did not have a green card.

It appears that the statements were made within the ambit of a general on-the-scene investigatory process, Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976); Tilley v. State, 462 S.W.2d 594 (Tex.Cr.App.1971); Higgins v. State, 473 S.W.2d 493 (Tex.Cr.App.1971), that had not shifted from the investigatory to accusatory or custodial stage. Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975); Steele v. State, 496 S.W.2d 66 (Tex.Cr.App.1973). It does not appear the appellant was under arrest or in custody at the time the statements were made. The statement that appellant was from Mexico was admissible.

If there was error in the admission of such evidence, it was harmless. There was other evidence, properly admitted, that appellant was from Mexico, had been placed on probation, had his conditions of probation explained to him, had been formally deported to Mexico, and had thereafter been found in Mercedes without authorization to reenter the United States. Still further, the hearing was before the trial court, and it is presumed the court disregarded any inadmissible testimony.

Appellant also urges the court erred in revoking probation based on condition (g) that was contradictory and ambiguous on its face. He points to the condition’s requirement that appellant remain within the limits of Hidalgo County, Texas, and the latter requirement that he return to the Republic of Mexico.

The first sentence of condition (g) relating to remaining in Hidalgo County was part of the printed form while the subsequent sentence directing appellant to return to Mexico was typed in. While greater care should have been exercised under the cir-. cumstances, a fair reading of condition (g) resolves any conflict. While appellant was to remain in Hidalgo County unless given permission to leave, the second sentence directing his return to Mexico constituted that permission. Further, the probation officer explained to the appellant his probationary conditions and specifically informed appellant he must return to Mexico and not reenter the United States illegally.

While no model, condition (g) was not so contradictory and ambiguous to deprive the appellant of due process.

Lastly, appellant contends the court had no jurisdiction to impose condition (g) on him. Without citation of authority, appellant argues the federal government has jurisdiction over immigration and naturalization and that the state court has no authority to banish anyone from this country. We do observe that Article I, § 20 of the Texas State Constitution, Vernon’s Ann. St., and Article 1.18, Vernon’s Ann.C.C.P., provide:

“No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

Where the trial court grants probation, it has wide discretion in selecting conditions of probation. Tamez v. State, 534 S.W.2d 686, 691 (Tex.Cr.App.1976); Salinas v. State, 514 S.W.2d 754 (Tex.Cr.App.1974) (footnote # 1). The conditions are not limited to those suggested in the statute, see Article 42.12, § 6, Vernon’s Ann.C.C.P., but they should be “reasonable” as expressly provided by the statute. Article 42.12, § 3d(a), Vernon’s Ann.C.C.P. And in light of the provisions of the statute, it would seem that permissible conditions should have a reasonable relationship to the treatment of the accused and the protection of the public. Tamez v. State, supra.

We have not found a case which has passed directly upon the validity of the probationary condition in question.

In Aldana v. State, supra, and Williams v. State, 523 S.W.2d 953 (Tex.Cr.App.1975), similar questions to the one in the instant case were raised. In Aldana, however, there was no showing that the defendant was an alien, that he ever left El Paso, that he reentered the United States. Thus, the court did not reach the validity of the probationary condition not to reenter the United States. In Williams the condition “must not reenter without written permission from this Court” was so vague and indefinite as not to be a valid condition of probation. Here, the condition did not say that the defendant must not reenter the United States or any other country. For this reason, the validity of this condition was not considered.

We observe that in the instant case the appellant was not deported by the state as a result of the probationary condition but was formally deported by federal authorities on January 30, 1975 after conviction in the United States Magistrate’s Court on January 22,1975. Appellant’s probation was not revoked because he refused to return to Mexico, but because he reentered the United States illegally. This was a violation of condition (g). Clearly the basis of the revocation was reasonable. We need not reach the question of the validity of that part of condition (g) requiring the appellant to return to Mexico.

The contention is overruled.

The judgment is affirmed.

      . Condition (g) is set out in full at the beginning of this opinion.

      . It was also a violation of federal law, which would have likewise made it a violation of condition (a). There was no allegation in the revocation motion as to a violation of condition (a).


text:
    George Eugene COLE, Appellant, v. The STATE of Texas, Appellee.
    No. 55339.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.

      Robert J. Wilson, Burleson, for appellant.
    Daniel M. Boulware, County Atty., Cle-burne, J. L. Phinney, II, City Atty., Burle-son, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

The appellant was found guilty of the offense of “negligent collision” in the municipal court of the City of Burleson. An appeal with trial de novo was heard in the county court. This is an appeal from the conviction in the county court. The punishment assessed was a fine of $101.00.

Prior to trial the appellant moved the court to dismiss the complaint because it failed to comply with requirements of Article 21.15, V.A.C.C.P. and V.T.C.A. Penal Code, Chapter 6. The court’s failure to dismiss the complaint was error.

Article 21.15, V.A.C.C.P. provides:

“Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.”

The complaint in the instant case, in pertinent part, reads:

“ . . . that one George Eugene Cole on (or about) the 24th day of July A.D. 1975, ... did then and there unlawfully and willfully while operating a motor vehicle in said City and County, said motor vehicle being then and there under the exclusive direction and control of the said George Eugene Cole, with negligence, to-wit: did then and there fail to exercise such care and caution as a person of ordinary prudence would have used under like or similar circumstances, in that he permitted or suffered a motor vehicle under his control to collide and be in collision with another motor vehicle that was proceeding on State Highway #174, in violation of Article 4, Section 1 of Burleson City Ordinance B-17; . . ”

In construing Article 408a, V.A.C.C.P., 1925, the statute from which Article 21.15, V.A.C.C.P., 1965 was derived, it was held that pleadings which failed to allege the act of negligence relied upon rendered the pleadings fatally defective. See Scott v. State, 171 Tex.Cr.R. 53, 344 S.W.2d 457 (1961); Short v. State, 387 S.W.2d 50 (Tex.Cr.App.1965); Jones v. State, 388 S.W.2d 716 (Tex.Cr.App.1965).

The complaint is insufficient because it fails to allege the act or acts relied upon to constitute negligence.

In the event of another trial we call attention to V.T.C.A. Penal Code, Section 6.02, which provides:

“(a) Except as provided in Subsection (b) of this section, 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.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge or recklessness suffices to establish criminal responsibility.
“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”

It would now appear that not simple negligence but criminal negligence is the lowest degree of conduct for imposing criminal responsibility. See Bocanegra v. State, 552 S.W.2d 130 (Tex.Cr.App.1977).

In response to counsel’s request that we construe and determine the constitutionality of the city ordinance upon which this charge was based, we note that there is not a transcription of the court reporter’s notes (statement of facts) in the record showing that the ordinance relied upon was introduced in evidence before the trial court. It is not sufficient that a certified copy of the ordinance appears in the transcript prepared by the clerk of the court. This Court will not take judicial notice of a city ordinance; Patton v. State, 112 Tex.Cr.R. 351, 16 S.W.2d 1072 (1929); Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973).

Since the complaint does not allege a specific act of negligence, the judgment is reversed and the prosecution under this complaint is ordered dismissed.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    Robert Lee HOUSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 55375.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.

      Bob D. Odom (Court-appointed on appeal only), Killeen, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This appeal is from a conviction for rape in a trial before the court in trial court Cause No. 25,145, conducted February 11, 1977. Punishment was assessed at eight years.

In his sole ground of error, appellant argues the court erred in overruling his plea of former jeopardy.

Appellant was originally charged by indictment presented October 13, 1976, with burglary of a habitation with intent to commit rape. On December 2, 1976, in a trial before the court on this charge in Cause No. 24,944 in the District Court of Bell County evidence was heard including testimony of the owner of the habitation that appellant had raped her on this occasion. After both parties closed, the court expressed doubt that the evidence established appellant’s guilt of burglary, and found him guilty “of Rape, a lesser offense than the indictment,” and assessed punishment at twelve years. Notice of appeal was timely given.

The record also shows that on December 8,1976, subsequent to the trial of Cause No. 24,944, supra, an indictment was presented charging appellant with rape of the owner of the habitation on or about September 1, 1976, which indictment was filed as case No. 25,145 in the District Court of Bell County. On January 14, 1977, while preparations were being made to complete the appellate record in Cause No. 24,944, supra, the State’s motion to dismiss that case was granted by the trial court, and order was entered dismissing said Cause No. 24,944.

On January 27, 1977 Cause No. 25,145 was called for trial. Appellant’s motion to dismiss on the ground of double jeopardy because of his conviction for the same offense in No. 24,944 was overruled. Thereupon, appellant, subject to his plea of jeopardy, plead guilty to the charge of rape, and after hearing evidence including a judicial confession the court convicted him of rape and assessed punishment at eight years. The appellate record establishes definitely that this was the same rape for which appellant had been convicted as a lesser offense of burglary of a habitation in Cause No. 24,944, supra.

Ward v. State, Tex.Cr.App., 520 S.W.2d 395, involved the following set of circumstances. The defendant at a prior trial had been convicted of the same offense as that from which his present appeal was taken. Judgment was rendered, motion for new trial was overruled, defendant was sentenced, and notice of appeal given. Before the appellate record was completed, the trial judge discovered that the indictment was fatally defective, and entered a second order granting a new trial. He then dismissed the case. A new valid indictment was returned and in a second trial defendant’s plea of former jeopardy was overruled, and he was convicted. On appeal, this Court held that the conviction on the fatally defective indictment was a nullity, and that “Jeopardy did not attach as a result of the first trial on the fatally defective indictment.” See also Thompson v. State, Tex.Cr.App., 527 S.W.2d 888, holding that an acquittal in a case where the indictment was fatally defective is a nullity and does not bar a second prosecution on a new and valid indictment.

The issue arises whether the trial court had jurisdiction to convict appellant of rape as a lesser included offense under an indictment charging only the offense of burglary with intent to commit rape. In other words, is the offense of rape a lesser included offense under the indictment for burglary with intent to commit rape; and, if not, was the conviction for rape in the first trial a nullity preventing the bar of jeopardy from affecting the second trial on the indictment for rape.

Art. 37.09, V.A.C.C.P., provides that

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
“Amended by Acts 1973, 63rd Leg., p. 968, ch. 399, Section 2(A), eff. Jan. 1, 1974.”

This Court has thoroughly discussed the rules governing lesser included offenses, and such discussion need not be repeated here. See Sutton v. State, 548 S.W.2d 697; Day v. State, Tex.Cr.App., 532 S.W.2d 302; Raven v. State, Tex.Cr.App., 533 S.W.2d 773; Hazel v. State, Tex.Cr.App., 534 S.W.2d 698; Jones v. State, Tex.Cr.App., 532 S.W.2d 596. The offense of theft is not a lesser included offense of a charge of burglary with intent to commit theft, where the indictment does not expressly charge the commission of theft. Franks v. State, Tex.Cr.App., 516 S.W.2d 185; Hardin v. State, Tex.Cr.App., 458 S.W.2d 822. The offenses of rape and burglary with intent to commit rape are separate and distinct offenses, and a conviction of an accused for rape will not bar a subsequent conviction of the same accused for burglary with intent to commit rape involving the same transaction. Jones v. State, Tex.Cr.App., 514 S.W.2d 255. See also Pena v. State, Tex.Cr.App., 442 S.W.2d 691; Bingham v. State, Tex.Cr.App., 523 S.W.2d 948. We hold that the offense of rape is not a lesser included offense under an indictment charging only the commission of the offense of burglary with intent to commit rape.

Since rape is not a lesser included offense of burglary with intent to commit rape, there was no valid indictment before the court in Cause No. 24,944 charging rape, and the court was without jurisdiction to convict appellant for rape. See Van Arsdale v. State, 149 Tex.Cr.R. 639, 198 S.W.2d 270; Ex parte Dies, 160 Tex.Cr.R. 468, 272 S.W.2d 373; Carillo v. State, 172 Tex.Cr.R. 489, 358 S.W.2d 635. See also Tomlin v. State, 155 Tex.Cr.R. 207, 233 S.W.2d 303. In the absence of jurisdiction, the judgment of conviction was a nullity, and the trial court properly entered its order dismissing that case. See Ward v. State, supra. See also Thompson v. State, supra. Jeopardy did not attach as a result of that trial and judgment. See Jones v. State, supra (514 S.W.2d 255).

Appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . The record on appeal includes the proceedings in the trial of Cause No. 24,944, including the indictment, statement of facts, judgment, sentence and notice of appeal.


author: DOUGLAS, Judge.

text:
    Ex parte Wayne WESTON.
    No. 55654.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.

      Russell M. Aboud and Richard M. Lovelace, El Paso, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a purported appeal in a habeas corpus proceeding.

On June 27, 1977, the petitioner filed an application for a writ of habeas corpus with the trial court seeking to have bail set pending the appeal of an order revoking probation in which punishment had been assessed at five years. On June 28, 1977, the trial judge entered a judgment denying bail. On July 11, 1977, appellant filed a notice of appeal. We must determine whether the July 11 notice of appeal is sufficient to confer jurisdiction on this Court.

In Ex parte Mayes, 538 S.W.2d 637, 638 (Tex.Cr.App.1976), we find the following:

“In order to obtain review by this court from an order of the trial court in a habeas corpus proceeding in which the object is the setting or reduction of bail, the habeas corpus applicant must invoke the appellate jurisdiction of this court. This latter type proceeding is not subject to automatic review by this court under Article 11.07, (Vernon’s Ann. C.C.P.); rather, it is subject to review under Article 44.34, Vernon’s Ann. C.C.P., after notice of appeal has been timely given in accordance with Article 44.08, Vernon’s Ann. C.C.P. See Ex parte Silva, 486 S.W.2d 349 (Tex.Cr.App.1972), and cases cited under Annotation 23, Article 44.08, supra.” (Emphasis supplied).

Article 44.08(a), V.A.C.C.P., provides:

“It shall be necessary for defendant, as a condition of perfecting an appeal to the Court of Criminal Appeals, to give notice of appeal. This notice may be given orally in open court or may be in writing filed with the clerk. Such notice shall be sufficient if it shows the desire of defendant to appeal from the conviction to the Court of Criminal Appeals.”

Subdivision (b) of Article 44.08 provides that, in death penalty cases and in probation cases where imposition of sentence has been suspended, notice of appeal must be given or filed within ten days after the overruling of a motion or amended motion for a new trial, or within ten days after entry of judgment on the verdict. Subdivision (c) of Article 44.08 provides that, in all other cases, notice of appeal shall be given or filed within ten days after sentence is pronounced. Subdivision (d) of the statute provides that an appellate record will be deemed sufficient to show notice of appeal if certain requisites are met; and, subdivision (e) of that article permits the trial court, for good cause shown, to permit the giving of notice of appeal after the expiration of such ten days. Article 44.08, supra, does not expressly set a time limit for giving notice of appeal in habeas corpus cases.

Article 44.34, V.A.C.C.P., 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 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. The 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.”

In Ex parte Mayes, supra, we held that an appeal, such as the one in the instant case, is not an automatic proceeding but is one subject to review under Article 44.34, supra, after notice of appeal has been timely given in accordance with Article 44.08, supra. The time in which to give notice of appeal in a habeas corpus proceeding is not expressly stated in Article 44.08, supra. As a practical matter, notice of appeal in such cases should be given as soon as possible but within a shorter period than ten days from the judgment. This is because the statute requires that the record in the habeas corpus proceeding be sent to this Court within fifteen days after the date of the judgment, except that if good cause is shown, that time may be extended by this Court. Consequently, construing Articles 44.08 and 44.-34, supra, together, we hold that, in order to timely perfect an appeal in a habeas corpus proceeding, notice of appeal must be given or filed within ten days after the rendition of the judgment of the trial court.

In the instant case the trial court rendered judgment denying the relief prayed for on June 28, 1977. Notice of appeal was not given until July 11, 1977, which was in excess of the ten-day period of time for it to have been timely given; and, there is no showing of good cause for a belated notice of appeal under Article 44.08(c), supra.

The appeal is dismissed.

      . On June 14, 1973, new Article 37.071, V.A.C.C.P., became effective. Subdivision (f) of that article provides:
      “(f) The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals within 60 days after certification by the sentencing court of the entire record unless time is extended an additional period not to exceed 30 days by the Court of Criminal Appeals for good cause shown. Such review by the Court of Criminal Appeals shall have priority over all other cases, and shall be heard in accordance with rules promulgated by the Court of Criminal Appeals.”