author: ROBERTS, Judge.

text:
    Henry Edward JAMES, Appellant, v. The STATE of Texas, Appellee.
    No. 54020.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 29, 1978.

      M. Bruce Port, Galveston, for appellant.
    Ronald L. Wilson, Dist. Atty. James F. Hury, Asst. Dist. Atty., Galveston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated rape. The jury assessed the appellant’s punishment at confinement in the Texas Department of Corrections for ninety-nine years.

The appellant contends that the trial judge abused his discretion by refusing to grant the appellant’s motion to take depositions, that the prosecutor was impermissibly allowed to continue his final argument after the appellant declined to exercise his opportunity to argue, that the prosecutor failed to disclose to the appellant evidence favorable to his defense, and that the prosecutor committed reversible error in his final argument to the jury. We affirm.

The evidence reveals that on December 22, 1974, at approximately 8:00 p. m., the prosecutrix and her four-year-old daughter were driving to apartment # 9, 718 Broadway on Galveston Island where they lived. The prosecutrix parked her car in back of the apartment building and as she was getting a package out of the car she was grabbed from behind by a man. The prose-cutrix screamed and the man stated, “Shut up, you bitch, or I will kill your kid.” He then told her that she must put her child back in the car, lock the car, and come with him. The prosecutrix complied with the man’s instructions.

The man took the prosecutrix to a small room located behind the apartment complex where she lived. He then hit her on the head with a chrome pistol, forced her to lie face down on the ground, and raped her twice. The man then left and took her purse with him. The prosecutrix testified that her high school ring was in her purse when the man took it.

On January 10, 1975, the appellant was arrested by Officers Dagg, Martinez and Mares of the Galveston Police Department. When the appellant was searched, a ring from Texas City High School with the pros-ecutrix’s initials engraved on it was found. The appellant subsequently consented to a search of his residence and a chrome pistol was located there. Blood stains on the pistol were analyzed and they were determined to be consistent with the blood type of the prosecutrix and inconsistent with the blood type of the appellant. The appellant also gave a written confession.

The defensive evidence attempted to establish that on the night of the rape the appellant was at his wife’s grandmother’s house. Four witnesses testified to the appellant’s alibi.

The appellant’s first contention is that the trial judge erred by refusing to grant his motion to take depositions. The motion and attached affidavit were filed under the authority of Article 39.02, Vernon’s Ann.C. C.P., which states:

“Depositions of witnesses may be taken by the defendant. When the defendant desires to take the deposition of a witness, he shall, by himself or counsel, file with the clerk of the court in which the case is pending an affidavit stating the facts necessary to constitute a good reason for taking the same, and an application to take the same. Provided that upon the filing of such application and, after notice to the attorney for the State, the courts shall hear the application and determine if good reason exists for taking the deposition. Such determination shall be made based on the facts made known at the hearing and the court, in its judgment, shall grant or deny the application on such facts.”

The motion and affidavit, which were filed on May 9, 1975, and heard on May 21, 1975, both stated that the appellant sought depositions from Officers Dagg and Martinez of the Galveston Police Department, former Officer Felix Mares, Michael Carna-han of the Galveston County District Attorney’s Office, and three women, including the prosecutrix, who were the complainants in three cases then pending against the appellant.

The reasons advanced in the affidavit and reiterated in the motion were as follows: (1) The appellant was indicted in four cases shortly after his arrest and no examining trial was held; (2) Mares refused to discuss any of the facts of the case with the appellant’s court-appointed private investigator; (3) Officers Dagg and Martinez refused to discuss any of the facts of the case with the appellant’s court-appointed private investigator; (4) Mr. Carnahan would only discuss “in a very general fashion” the investigation involved until after he had talked to Assistant District Attorneys James Hury or Jack Brock; (5) the complainant in one of the related cases then pending against the appellant was in Denver, Colorado, and would not return to Texas until the end of May 1975; (6) the complainant in another related case then pending against the appellant and the complainant [i. e., the prosecu-trix] in the instant case against the appellant had moved from their respective residences since the initial investigation of the cases was completed, and James Hury, Assistant District Attorney, refused to provide the appellant’s court-appointed private investigator with the address of these two women. The hearing on the motion to take depositions essentially verified the foregoing. At the close of that hearing the trial judge declined “to order the deposition of these witnesses at this time.”

It is well established that a defendant, pursuant to Article 39.02, Vernon’s Ann.C.C.P., may take a deposition upon a showing of “good reason” at a hearing before the court and the court determines “good reason” exists. James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977); McKinney v. State, 505 S.W.2d 536 (Tex.Cr.App.1974). The trial judge has wide discretion in such matters, James v. State, supra; Beard v. State, 481 S.W.2d 875 (Tex.Cr.App.1972); and merely because a defendant seeks the deposition of adverse witnesses is not sufficient, standing alone, to show an abuse of discretion where the trial judge has denied a defendant’s motion. Tucker v. State, 461 S.W.2d 630 (Tex.Cr.App.1970). Moreover, before a trial judge’s refusal to grant a motion for depositions will constitute an abuse of discretion, the defendant must show that he was injured by the trial judge’s action. James v. State, supra; Beshears v. State, 461 S.W.2d 122 (Tex.Cr.App.1970).

In the present case, the appellant expressly stated that the depositions were requested because there was no examining trial prior to the return of the indictments and he was therefore precluded from discovering the testimony of those witnesses who would have testified at the examining trial. We hold that these facts do not constitute “good reason” within the meaning of Article 39.02, Vernon’s Ann.C.C.P. Cf. Beard v. State, supra. Moreover, the appellant sought the deposition of three women who were currently unavailable to the defense. The fact that these three witnesses were not available at that time does not constitute “good reason” within the meaning of Article 39.02, Vernon’s Ann.C. C.P. Also, there was no allegation that any of these women refused to talk with the appellant or that depositions were otherwise necessary.

However, even if the appellant had set forth facts which constituted “good reason,” the appellant has not shown that the trial judge’s action was harmful to him. The appellant’s first contention is overruled.

The appellant’s second contention is that the trial judge erred by allowing the prosecutor to continue to argue after the appellant declined argument during the punishment stage of the trial.

The record reflects that after the trial judge read the charge to the jury at the punishment stage of the trial the prosecutor addressed the jury. At the end of the prosecutor’s argument, the appellant declined argument and objected to any further argument by the prosecutor. Then, outside the hearing of the jury, the prosecutor requested that he be allowed to reopen. The appellant again objected and the trial judge ultimately sustained the appellant’s position.

Then, within the hearing of the jury, the following occurred:

[PROSECUTOR]: “May it please the Court, the State would ask the ability to reopen and continue with the opening argument so that it might ask the jury for a life sentence.
[DEFENSE COUNSEL]: “We object to that and request a mistrial on the basis of misconduct.
THE COURT: Overrule the objection.
[DEFENSE COUNSEL]: “Request the jury be instructed.
THE COURT: “Overrule the objection.
“Ladies and Gentlemen, I will ask you to retire to the jury room.
[DEFENSE COUNSEL]: “Am I overruled?
THE COURT: “Overruled.”

The appellant contends, on appeal, that the trial judge erred by allowing the prosecutor to continue his argument and ask the jury to return a sentence of life imprisonment.

Article 36.07, Vernon’s Ann.C.C.P., states: “The order of argument may be regulated by the presiding judge; but the State’s counsel shall have the right to make the concluding address to the jury.”

Under Article 36.07, Vernon’s Ann.C.C.P., the trial judge is given the power and discretion to regulate the order of argument. In Walker v. State, 64 Tex.Cr.R. 70, 141 S.W. 243, 244 (1911), this Court stated:

“The question of whether, when the defendant’s counsel declines to address the jury, the court shall permit more than one argument to be made by state’s counsel, is one of discretion in the trial court . . ."

In the present case, the prosecutor did not ask for a specific sentence from the jury in his opening remarks to the jury. Although we do not approve of the prosecutor’s improper disregard of the trial judge’s ruling sustaining the appellant’s objection, the trial judge would not have abused his discretion if he had permitted the prosecutor to argue to the jury after the appellant declined to argue. Therefore, we do not find that the trial judge abused his discretion in overruling the appellant’s objection to the prosecutor’s action. Appellant’s second contention is overruled.

The appellant’s third contention is that the prosecutor suppressed exculpatory evidence of a pretrial lineup. Specifically, the appellant complains that he was not apprised that the prosecutrix was unable, on two occasions, to identify the appellant as the man who raped her.

During the State’s case in chief, the pros-ecutrix testified on direct examination that she could not identify her assailant. On cross-examination, the prosecutrix again testified that she could not identify her assailant. She then testified that during a pretrial lineup she had identified a man other than the appellant as the rapist.

On redirect examination, the prosecutrix testified that during the lineup she realized that she had identified a man she had met prior to the lineup. She then notified the officers conducting the lineup of this fact, and the officers had the men in the lineup repeat the phrase “I will kill that kid.” The prosecutrix then identified, on the basis of his voice, a second man, who was not the appellant.

On recross-examination the prosecutrix testified that she told the police that she could positively identify the second man as the man who raped her.

The appellant contends that the prosecutor suppressed the prosecutrix’s second attempt to identify the appellant as her assailant and that this suppression is reversible error.

It is well established that the standard to be applied where the prosecutor suppresses or fails to disclose evidence is whether that evidence may have had an effect on the outcome of the trial. Lowe v. State, 533 S.W.2d 6 (Tex.Cr.App.1976); Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974).

In the present case, the prosecu-trix’s second misidentification was not disclosed to the defense. However, the defense successfully elicited the evidence during cross-examination of the prosecutrix. Moreover, the prosecutrix admitted at trial that she could not identify the appellant as her assailant. We cannot perceive how the appellant could have utilized the nondisc-losed evidence in a manner that may have had an effect on the outcome of the trial. Appellant’s third contention is overruled.

The appellant’s final contention is that the prosecutor committed reversible error in final argument to the jury during the guilt or innocence stage of the trial. The argument complained of is as follows:

[PROSECUTOR]: “State’s Exhibit 13 [appellant’s confession] is before you, stating the history, what happened to this defendant, and his time with the Galveston Police Department is before you and you must answer whether or not you believe Henry Edward James was so beaten or so abused that he said these words: ‘On December 22nd I came to Galveston at 7:00 p. m. I had my chrome gun. I saw a girl in her car. She had a baby girl in her car. I told her to leave the baby in the car.’
“Ladies and Gentlemen, that one completely connects him to this crime.
“On page 3 [of the court’s charge], it contains the charge in this case concerning circumstantial evidence. I submit to you, Ladies and Gentlemen, that if you believe this document then this is not a circumstantial evidence case. I believe that this document can enable you to decide—
[DEFENSE COUNSEL]: “Object to the last argument. The charge stands for itself.
THE COURT: Okay.
[PROSECUTOR]: “Your Honor, could I get credit for the time I have been arguing?
THE COURT: “Sustain the objection.
[DEFENSE COUNSEL]: “Move for mistrial.
THE COURT: Overrule the motion for mistrial. Sustain the objection to the comment on the charge.
[PROSECUTOR]: “It states here that the circumstances must lead you to a reasonable and moral certainty that the accused, and no other person, committed the offense charged.
“Ladies and Gentlemen, if you believe this document [appellant’s confession], if you believe the presence of the ring, if you believe the pistol, it takes this particular case out of your consideration, so far as this particular charge is concerned.
[DEFENSE COUNSEL]: “Again object to his reference. The charge stands for itself. I ask the jury be so instructed.
THE COURT: “Overrule the objection.
[PROSECUTOR]: “Once again, could I have credit—
THE COURT: “Go ahead. You are wasting time.
[PROSECUTOR]: “Ladies and Gentlemen, a circumstantial evidence case is that case at which time there are no direct forms of evidence linking the person who committed it with the crime committed. I submit to you that this is not the case.
[DEFENSE COUNSEL]: “Again object to this argument.
THE COURT: “Overrule the objection.
[PROSECUTOR]: “You have the ability to deciile whether or not you are going to follow this particular item. You have the ability to decide whether or not you believe that the things contained in this particular charge, that are contained in this particular trial, were proved to you directly.
[DEFENSE COUNSEL]: “Again object.
THE COURT: “Overrule.” [Explanation added]

Specifically, the appellant contends that the prosecutor’s comments instructed the jury to disregard the trial judge’s instruction on circumstantial evidence.

It is well established that a charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1976) (Opinion on Appellant’s Motion for Rehearing). Direct evidence is that evidence which directly demonstrates the main fact to be proved. Circumstantial evidence, on the other hand, is that evidence which directly proves a secondary fact which, by logical inference, demonstrates the main fact. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973). Normally, a defendant’s confession will constitute direct evidence of the main inculpa-tory fact and thus obviate the necessity for a circumstantial evidence charge. Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App. 1974). However, a confession must unequivocally admit the commission of the act charged before the trial judge is relieved of the necessity of giving a charge on the law of circumstantial evidence. Ridyolph v. State, supra; Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974).

The appellant’s confession unequivocally admitted that he raped the prosecutrix on the night in question. The confession provided direct evidence of the main fact the State had to prove. A circumstantial evidence charge was not required, and the prosecutor’s argument, therefore, did not constitute a statement of law contrary to the court’s charge. Cf. Davis v. State, 506 S.W.2d 909 (Tex.Cr.App.1974).

The trial judge also charged the jury that if they believed from the evidence, or had a reasonable doubt, that the appellant’s statement was not voluntarily made, they must not consider that statement or any evidence obtained as a result of that statement for any purpose. Thus, if the jury found that the appellant’s confession was not voluntary, then there would have been no direct evidence of the main fact the State had to prove and the case would have been based entirely upon circumstantial evidence. In light of this possibility, we believe that the prosecutor’s argument was a proper attempt to explain the court’s charge. No error is shown and the appellant’s fourth contention is overruled.

The judgment is affirmed.

      . We note that there was no showing that any of the people whose deposition the appellant sought would have testified at the examining trial.

      . The appellant attempted to show harm by alleging that he did not know about the lineup procedure and that the prosecutrix’s high school ring was found on the appellant’s person when he was arrested. Both of these matters were within the appellant’s personal knowledge.
      Moreover, Mares, Dagg, Carnahan, and the prosecutrix testified and were cross-examined. See Greer v. State, 523 S.W.2d 687 (Tex.Cr.App.1975); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973).

      . The appellant filed a pretrial motion for discovery of exculpatory evidence. One of the items requested by the appellant was “[wjhether or not (sic) the complainant was able to identify any person as being the accused.” This specific request, cf. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), was denied by the trial judge. However,' the defense obtained a copy of a “show-up sheet” prior to trial. That show-up sheet revealed that the prosecutrix had been unable to identify the appellant as her assailant only once; it did not reflect her second mis-identification.

      . The appellant’s confession states, in pertinent part, that:
      “On Sunday, December 22, 1974, three days before Christmas, I came to Galveston in the evening. About 7:00 p. m. in the evening I was in the 700 Block of Broadway and saw a woman park her car. I had my chrome gun in my hand. She had a baby girl in the car and I told her to leave the baby in the car. I took her to my yellow and black oldsmobile Supreme. We go into my car and we had sexual intercourse. We did it both ways, that is both the normal and anal way. After we finished, I took her back to her car, she got her child out and I walked back to my car and drove off. I was driving my black and yellow Cutless Supreme 1974 PWH 406.”
      The factual disparity between the prosecutrix’s testimony and the appellant’s confession is irrelevant for purposes of this ground of error. The confession provides direct evidence of the main inculpatory fact the State had to prove.

      . Contrary to the prosecutor’s argument, neither the prosecutrix’s ring, which was found on the appellant when he was arrested, nor the chrome gun, which was found in the appellant’s residence, provided direct evidence that the appellant committed the rape. Rather, these two items constituted circumstantial evidence from which the main fact to be proved could be inferred.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Allen Louis GILBERTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 54124.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 29, 1978.
    Frank Steelman, Bryan, for appellant.
    W. T. McDonald, Jr., Dist. Atty., J. Bradley Smith, Asst. Dist. Atty., Bryan, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of burglary of a building. V.T. C.A., Penal Code, Sec. 30.02(a)(1). Punishment was assessed at five years’ imprisonment.

The evidence at trial revealed that on May 31, 1974, the Bailey Pharmacy on Villa Maria Street in Bryan was burglarized. The owner, William Bailey, testified that a typewriter, adding machine, and various drugs were taken in the burglary. On cross-examination, Bailey stated that he did not have a shotgun or a stereo component set in his pharmacy.

Officer Elvin Walker testified that in the process of investigating the burglary he took appellant’s statement on August 7, 1974. Prior to taking the statement, Officer Walker gave appellant a Miranda warning and asked appellant if he wanted an attorney. The appellant stated that he did not want an attorney and voluntarily gave a statement. After the statement was typed, the appellant read it and signed it. The following is a verbatim rendition of appellant’s statement:

“About the first of May or the latter part of April 1974 my wife, Nancy and one child and I were traveling west on 25th Street in my fathers truck (1965 Chevrolet, ½ ton, green in color) when he saw a hitchhicker. We stopped and picked the black male hitchhicker up, and he told us where he lived. We carried him to a house on S. Randolph St. The house was located on the right at the end of Randolph Street. Upon our arrival the black male who is known to me as Bardie ask us out. We got out and went inside and talked awhile. Then we got ready to go and I told Bardie that we would coming back from Huntsville next week-end and he ask us to drop by. (appellant’s initials)
“About 2 or 3 weeks later my wife and I went back by Bardie’s house on Randolph Street and we got out and went inside. We were there for about 1 hour and a half and someone knocked on Bardie’s front door. Bardie answered the door and he went outside with the person at the door. About 5 minutes later Bardie came back inside the house and ask me if I could take them some place in the truck. I told them yes. I walked outside and got into my truck, Bardie and a white male that Bardie introduced to me as Greg Lear got into the truck. I drove off and Bardie ask me if I knew where Cav-itt Street was located and I told him yes. I drove down Cavitt Street behind the Community Cablevision place and Bardie told me to stop. I stopped the truck and Greg got some tools out of the back that he had already put in there before I left. Bardie and Greg told me to wait for them and I waited. About 20 minutes Bardie and Greg returned to the truck with a laundry bag full of something and they put it in the back of the truck. They got in and we drove back to the house. Upon our arrival we got out and Greg carried the bag into the house. Once inside Greg opened the bag up and the bag contained screwdriver, crowbar, some pills, and lots of small square gold pieces, the gold pieces were in small plastic envelopes. That night Greg and Bardie divided the items up and Bardie gave me about 50 pieces of gold. I spent the night with my wife at Bardie’s house and the next morning I gave him the gold back. Greg left after they divided the merchandise up. (appellant’s initials)
“That same night about 12:00 midnight Greg Lear was kind of excited after they divided the items and he called Bardie outside. He and Bardie talked for awhile outside and they came back inside, then they ask me to give them another ride over by the hospital. Greg Lear, Bardie and I walked outside and got into my truck then we drove pass the new St. Joseph Hospital and Greg ask me to stop by the Floral Center. I stopped the truck and they got out. I drove down the road about a block and I came back and parked behind the Floral Center and another building. I waited about 3 minutes and Greg and Bardie came back to the truck and they told me to drive over there by the doctor’s office. I drove the truck to the doctors office by some weeds and they said stop. I stopped the truck and Greg and Bardie got out and loaded a large stereo component set, adding machine, typewriter and a shotgun into the back of the truck. Then we drove back to the house. Upon our arrival, we carried the stuff into the house. Then Greg left. My wife and I spent the night. The next morning Greg came back over and picked up all the items and told Bardie he was going to take the stuff to Houston, (appellant’s initials) “About a month and a half ago around 4:00 P.M. on a Sunday, Greg Lear was given me a ride over to a friends house and we were traveling on E. 29th Street by the new shopping window. Greg pulled in and parked in front a jewelry store, he got out and walked up to the jewelry store display window, then he called me over to the window and said look here ‘Man I bet I could get rid of the rings and stuff in Philadelphia in a minute.’ We both got back in the car and left. Then Greg carried me over to my friends house and left.” (appellant’s initials)

Walker stated that he had had a discussion with Marion Jones, “Bardie,” concerning the burglary and Jones had implicated the appellant and Lear. On cross-examination, it was pointed out that the statement by appellant indicates the activities described therein were, at the latest, conducted in the third week of May. The statement does not mention “Bailey’s Pharmacy.”

The appellant testified on his own behalf that during the month of May 1974 his father’s truck was in the repair shop and he had no transportation. As a result of this appellant stated that he did not go to Bryan at any time during the month of May. He further testified that the statement given to Officer Walker was not voluntary and he demanded an attorney on several occasions. Appellant’s wife, Nancy Gilbertson, corroborated appellant’s statement and testified that she and her husband were in Huntsville on May 30 and 31.

On rebuttal, the State introduced the testimony of Roland Searcy in order to establish the voluntariness of appellant’s statement. Searcy testified that on August 6, 1974, at the time of appellant’s arrest, he was taken before Judge Dewey and given a magistrate’s warning. At that time, appellant gave no indication that he desired an attorney.

In his first ground of error, appellant contends that the trial court erred in failing to grant his motion for instructed verdict based on insufficient evidence. The State relies on the appellant’s voluntary statement and the fact it reveals that pills, a typewriter, and an adding machine were some of numerous items stolen. Further, thé owner of the pharmacy testified that a number of drugs, a typewriter, and an adding machine were missing. The State argues that burglarious entry may be shown by circumstantial evidence. Morgan v. State, Tex.Cr.App., 503 S.W.2d 770; Jones v. State, Tex.Cr.App., 458 S.W.2d 89. While we agree with the State’s statement of the law, we conclude that the evidence was insufficient to show appellant’s connection with the offense alleged.

At the outset, we note that the statement made by appellant is the sole evidence used by the State to connect him with the burglary. While the statement does indicate several nefarious activities on the part of the appellant, we cannot say it is sufficient to indicate his connection with the burglary of Bailey’s Pharmacy. The statement does not mention “Bailey’s Pharmacy” nor does it indicate that Bailey’s Pharmacy was anywhere near the locations mentioned in the statement. Further, there was no testimony showing that the pharmacy was at or near the location of the activities described in the statement.

There was no witness to the burglary. The statement was the only evidence that appellant was in Bryan in May 1974. The statement is not precise about the exact dates appellant was involved in the various activities; however, it does indicate that the latest date appellant was in Bryan was the third week in May. There was positive direct and uncontroverted evidence from appellant and his wife that they were both in Huntsville on May 30 and 31, 1974.

The only evidence that even remotely implicates the appellant in the burglary is the testimony of the owner, William Bailey, who described certain items taken. Similar items were described in appellant’s statement. However, no property taken in the burglary was found in appellant’s possession, nor was there evidence that such property was found in the possession of Marion Jones, “Bardie,” or Greg Lear.

Jones and Lear did not testify at trial. There was no evidence to show either Jones, Lear or the appellant physically entered Bailey’s Pharmacy in any way. No fingerprints were taken.

In Morgan v. State, supra, relied upon by the State, the defendant was found running from the burglarized store four minutes after a burglar alarm signified entry. After being pursued and arrested by the police, several stolen articles were found along the path of the defendant’s flight and one item was found near the point where the defendant was arrested. In the instant ease, however, there was no showing appellant was in Bryan the night of the burglary and no stolen property was found near or in the possession of appellant.

In Jones v. State, supra, an adding machine was stolen and it was established that the defendant had possession of and later sold the same machine. In the present case, no stolen property was connected to the appellant.

In Greer v. State, Tex.Cr.App., 437 S.W.2d 558, we cited 24 Tex.Jur.2d, Evidence, as follows:

“In criminal cases, a conviction may properly be had on circumstantial evidence alone. Indeed, circumstantial evidence is frequently just as convincing in a criminal case as direct evidence. To sustain a conviction on circumstantial evidence, however, the basic facts from which it is sought to infer the ultimate fact of guilt must be proved beyond a reasonable doubt by direct evidence. The basic facts must also be consistent not only with each other, but also with the ultimate fact of guilt sought to be inferred from the basic facts. In short, the circumstances relied on, when considered as a whole, must be of a conclusive nature; they must lead to a satisfactory conclusion that the accused is guilty and exclude all other reasonable hypothesis except guilt. They must produce, in net effect, a reasonable and moral certainty that the accused and no other person committed the offense charged. 24 Tex. Jur.2d, Evidence, Sec. 729, p. 403.
“In criminal eases, a judgment of conviction, to be sustained on appeal must be supported by evidence that produces a moral certainty of the guilt of the accused to the exclusion of every reasonable doubt. The evidence will be insufficient to sustain the conviction where, although not leaving the accused free from suspicion of guilt, it still fails to show his guilt to a moral certainty, so as to exclude all reasonable doubt.
“In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material evidence of the offense charged. 24 Tex.Jur.2d, Evidence, Sec. 742, p. 422.” (Emphasis added)

While appellant’s statement may possibly indicate some criminal activity, we cannot conclude that the evidence is sufficient to sustain a conviction for the offense alleged. Appellant was not in possession of any property taken in the burglary. There was no showing he was in Bryan the night of the burglary. Further, even if we assume appellant’s statement refers to activities on May 30 and 31, there is no evidence those activities occurred at a location close to Bailey’s Pharmacy. We therefore hold the evidence insufficient to support the conviction. Greer v. State, supra; Donovan v. State, Tex.Cr.App., 539 S.W.2d 884; Moreland v. State, 126 Tex.Cr.R. 367, 72 S.W.2d 273.

For the reasons stated herein, the judgment is reversed and cause remanded.


author: ONION, Presiding Judge.

text:
    Edward Jay ABRAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 54302.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 29, 1978.

      James R. Mallory, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Marvin Collins, Robert J. Gieb and William S. Harris, Asst. Dist. Attys., Fort Worth, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for speeding, wherein the punishment was assessed by the jury at a fine of $175.00.

The record reflects that on November 20, 1975 the appellant entered a plea of nolo contendere in the Municipal Court of the city of Arlington to a complaint charging him with speeding. He was fined $35.00 by the court. Notice of appeal was given. Subsequently he was accorded a trial de novo in the County Criminal Court No. 3 of Tarrant County where a jury assessed his punishment at $175.00.

We are met at the outset with the question of whether appeal to this court was timely given and this court acquired jurisdiction. Judgment was entered on March 22, 1976. Sentence was imposed on the same date, but such sentence is a nullity as sentences are not required in cases where the maximum possible punishment is by fine only. Speeding carries a maximum fine of $200.00 and no jail time is provided as punishment. See Article 6701d, § 143, V.A.C.S.

Article 42.02, V.A.C.C.P., provides:

“A ‘sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.” (Emphasis added.)

We observe that also on March 22, 1976 the appellant filed a motion for new trial. This motion was overruled on April 11, 1976 by operation of law when it was not determined within 20 days of its filing. Article 40.05, V.A.C.C.P. See, e. g., Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973); Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Resendez v. State, 523 S.W.2d 700 (Tex.Cr. App.1975).

On April 21, 1976 the appellant filed an amended motion for new trial and on the same date gave written notice of appeal.

Article 40.05, supra, permits the trial court for good cause to extend the time for filing or amending the motion for new trial. An amended motion for new trial, however, should be filed “with leave of court” first obtained as required by Article 40.05, supra. The “amended” motion in the ease was not filed with leave of court and was never considered by the trial court. It was a nullity and did not affect the overruling of the original motion for new trial on April 11,1976 with regard to computation of time in which to timely give notice of appeal.

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

“It shall be necessary for defendant, as a condition of perfecting an appeal to the Court of Criminal Appeals, to give notice of appeal. . .

Thus by statute the Legislature has mandated that notice of appeal must be given in order that this court might review the merits of a criminal conviction.

The question which remains is just when such notice of appeal must be given in a misdemeanor case such as the instant one. This is so because of the wording of Article 44.08(b) and (c), V.A.C.C.P. Such sections provide:

“(b) In cases where the death penalty has been assessed or in probation cases where imposition of sentence is suspended, such notice shall be given or filed within ten days after overruling of the motion or amended motion for new trial and if there be no motion or amended motion for new trial, then within ten days after entry of judgment on the verdict.
“(c) In all other cases such notice shall be given or filed within ten days after sentence is pronounced.” (Emphasis added.)

The instant misdemeanor case does not involve the death penalty or a probation matter where there has been a suspension of the imposition of sentence, and does not naturally fall under “all other cases” because no sentence is to be pronounced in such case.

In McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976), this court stated:

“It is apparent that this statute (Article 44.08) must govern the giving of notice of appeal in a misdemeanor case since we have been unable to find any other legislative enactment which governs the perfection of appeal in such cases.”

In McIntosh we dealt with when notice of appeal must be given in a misdemeanor case where probation is granted under Article 42.13, V.A.C.C.P. In such misdemeanor probation case no judgment is to be entered. Article 42.13, § 4, V.A.C.C.P.; Ex parte Smith, 493 S.W.2d 958 (Tex.Cr.App.1973); Coby v. State, 518 S.W.2d 829 (Tex. Cr.App.1975). There, as in the instant case, the time in which to give timely notice of appeal was not covered by the literal terms of Article 44.08, supra. By reading Articles 42.13 and 44.08 together, we concluded that notice of appeal must be given in misdemeanor probation cases within ten days after the entry of the written order granting the defendant misdemeanor probation if no motion or motions for new trial are timely filed. If a motion or amended motion for new trial has been filed, then notice of appeal shall be given within ten days after the overruling of the motion or amended motion for new trial.

In Ex parte Weston, 556 S.W.2d 347 (Tex.Cr.App.1977), it was observed that the time in which to give notice of appeal in a habe-as corpus proceeding under Article 44.34, V.A.C.C.P., is not expressly stated in Article 44.08, supra. Construing Articles 44.08 and 44.34, supra, together, it was held that in order to timely perfect an appeal in a habe-as corpus proceeding notice of appeal must be given or filed within ten days after the rendition of the judgment of the trial court.

In construing Articles 44.08 and 42.02, supra, together, we conclude in the instant case that the reasoning in McIntosh and Weston is here applicable. We hold, therefore, that in misdemeanor cases where the maximum possible punishment is by fine only, the notice of appeal to the Court of Criminal Appeals must be given within ten days after the entry of the judgment if no motions for new trial are timely filed. If a motion or amended motion for new trial is timely and properly filed, then notice of appeal shall be given within ten days after the overruling of the motion or amended motion for new trial.

In the instant case we observe that the notice of appeal was given within ten days after the original motion for new trial was overruled by operation of law. Since the sentence imposed and the amended motion for new trial are nullities for the reasons given, they do not affect the timeliness of the notice of appeal. This court will accept jurisdiction and consider the appeal in the instant case.

The facts in the instant case are not in dispute. Appellant on his motorcycle was clocked by police radar at 49 miles per hour on a street in the city of Arlington on October 11,1975. The posted speed limit on that street at the point involved was 30 miles per hour. As earlier noted, appellant was convicted in the Municipal Court of Arlington on November 20, 1975, gave notice of appeal and had a trial de novo in County Criminal Court No. 3 of Tarrant County on March 22, 1976. It is from his conviction there that he prosecutes this appeal.

In his sole ground of error, appellant complains the trial court erred in denying his motion to quash the complaint because the speeding ordinance on which the complaint is based is contradictory to the state statute and is thereby invalid.

Article XI, § 5 of the Texas Constitution, provides that no city ordinance may contain any provision inconsistent with the State Constitution or of the general laws enacted by the Legislature. “Accordingly, ordinances are void where they are in conflict with provisions of the Constitution or statutes.” 40 Tex.Jur.2d, Part 1, Municipal Corporations, § 286, p. 43.

In Ex parte Devereaux, 389 S.W.2d 672 (Tex.Cr.App.1965), and Ex parte Watson, 154 Tex.Cr.R. 167, 225 S.W.2d 850 (1949), this court held that the penalty provisions of city ordinances were void where they provided a penalty different from that provided in the statute.

The Legislature has enacted speeding restrictions for the State. Article 6701d, V.A. C.S., provides in § 166(a) that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing and that any speed in excess of the limits specified in said section “or established as herein before authorized” shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful.

§ 166(a), subd. 5(c), provides that the limits set forth in said § 166 [one of which is thirty (30) miles per hour in an urban district] may be altered as authorized in §§ 167, 168 and 169 of Article 6701d, supra.

§ 167 grants authority to the State Highway Commission, upon the basis of an engineering and traffic investigation, to alter maximum speed limits at certain places.

§ 169(b) provides like authority upon the governing bodies of incorporated cities in respect to highways or streets within the corporate limits of such cities. The authority to alter the maximum speed limits set forth in § 166(a) is subject to the qualification in § 169(b): “provided that under no circumstances shall any such governing body have the authority to modify or alter the basic rule established in paragraph (a) of Section 166 * * *”

The ordinance in question provides:

“It shall be unlawful for any person to drive or operate any motorvehicle, motorcycle, motor driven cycle, bicycle or other vehicle of any kind, whether or not motor powered on along, or upon, any street or thoroughfare of the City at a rate of speed greater than thirty miles per hour, unless otherwise posted according to law.” (City of Arlington, Ordinance 71-112, October 19, 1971).

Appellant argues that the ordinance is void since it counters the very statute authorizing its existence, and contravenes the basic rule of reasonable and prudent driving. Appellant notes that the ordinance sets no prima facie speed limit, but rather sets a rigid decree of 30 miles per hour “unless otherwise posted” regardless of what might otherwise be reasonable and prudent. The State agrees in its brief that the ordinance on its face appears to be in conflict with the State statute.

In Schneiderman v. Sesanstein, 121 Ohio St. 80, 167 N.E. 158 (1929), it was held that an ordinance making speed exceeding 15 miles per hour unlawful regardless of reasonableness, conflicted with the statute making such speed prima facie unreasonable, and was invalid.

There the court wrote:

“. . . The standard of conduct prescribed by statute is that the speed shall not be greater than reasonable and proper, considering the conditions and circumstances there enumerated, and that is the test that must be applied under the statute. The conditions of traffic may be such as to require a much less speed than 15 miles an hour to meet the requirement that the speed shall not be greater than is reasonable and proper. On the other hand, a given speed may be well within the requirement of statute, though somewhat in excess of the rate arbitrarily fixed by ordinance.”

See also Eshner v. City of Lakewood, 121 Ohio St. 106, 166 N.E. 904 (1929); Winters v. Bisaillon, 152 Or. 578, 54 P.2d 1169 (1936).

In City of Baraboo v. Dwyer, 166 Wis. 372, 165 N.W. 297, 298 (1917), the court had under consideration the question of whether a city ordinance fixing a definite limit of speed at 10 miles an hour was in conflict with a Wisconsin statute providing that “no person shall operate or drive any automobile . . recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways and the general and usual rules of the road, or so as to endanger the property, life or limb of any person.” In referring to these provisions of the statute, the court remarked, “It is manifest from the foregoing that the Legislature had in mind that in certain cases the speed limit must depend upon the particular facts of the case, and that in such cases the speed limit should not be fixed by local authority, but be determined upon the facts of each case where the Legislature made no specific limitation as to speed. The object of the Legislature clearly was to establish a uniform regulation applicable to all localities, and thus avoid the confusion and uncertainty which would result to the traveling public by different speed limits in different localities.”

The court then, after citing several authorities and quoting from others, continued as follows:

“It is obvious from the foregoing, as well as other provisions before referred to, that it was the intention of the Legislature to exclude local legislation inconsistent with state legislation upon the subject. True, under the statute local authority shall not be prohibited from enacting ordinances in strict conformity with the state law, ‘imposing the same penalty for a violation of any of the provisions of said sections,’ where the violation occurs within the jurisdiction of such local authority. Ogden v. Madison, 111 Wis. 413, 87 N.W. 568, 55 L.R.A. 506.
“The ordinance in question is not in conformity with our statute regulating speed of automobiles. It attempts to fix a limit of ten miles per hour over all bridges in the city of Baraboo, regardless of particular conditions. The ordinance provides a speed regulation, and fixes a speed different from the statute; hence is not in conformity therewith.”
“. . . [u]nder a statute prohibiting local regulations contrary to its provisions, and requiring reasonable speed in view of traffic and other conditions, ordinances fixing a maximum speed without regard to the amount, character, or conditions of traffic have been held invalid . . 60 C.J.S. Motor Vehicles § 29(3)b, p. 233.

We conclude that the city of Arlington in its ordinance did not adhere to the basic rule contained in § 166(a) of reasonable and prudent speed, but rather, contrary to the statute, set a rigid speed limit of 30 miles per hour (unless otherwise posted). The ordinance being contrary to the statute, it is void.

The State argues that the complaint charged the appellant not with driving at an unlawful speed, but rather with driving at a speed greater than was reasonable and prudent under the circumstances then existing and cites the 30 mile per hour limit as being the “lawful maximum prima facie reasonable and prudent speed limit.” The State notes that these allegations were proper ones under the general rule of § 166(a). An examination of the complaint shows this to be "so. The State also observes that the court instructed the jury to determine whether the appellant was driving at a speed greater than reasonable and prudent under the circumstances then and there existing. The court also instructed the jury on the term “prima facie evidence” and instructed them it could be rebutted, etc. Thus, we must consider whether the conviction is thus sustainable under the state statute and not subject to attack as a conviction for violation of a void ordinance. See and cf. Ex parte Devereaux, supra. This is so because the offense involves a misdemeanor offense over which the Municipal Court of the city of Arlington has jurisdiction.

To allege an offense under § 166(a)(1) of Article 6701d, it is necessary to allege and prove that the offense occurred in an “urban district.”

§ 166(a)(1) reads as follows:

“Sec. 166(a). No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing. Except when a special hazard exists that requires lower speeds for compliance with paragraph (b) of this Section, the limits specified in this Section or established as hereinafter authorized shall be lawful, but any speed in excess of the limits specified in this Section or established as hereinafter authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:
“1. Thirty (30) miles per hour in any urban district.”

In § 166(a)(5)(c) the following is found:

“ ‘Urban District’ means the territory contiguous to and including any highway or street which is built up with structures devoted to business, industry or dwelling houses, situated at intervals of less than one hundred (100) feet for a distance of one-quarter (¾⅞) of a mile or more on either side.”

Since it was not alleged and proven that the offense occurred in an urban district, the conviction cannot be sustained under § 166(a)(1) with punishment authorized by § 143 of said Article 6701d. Thus, the conviction cannot be sustained under state law or under the void ordinance.

The State argues harmless error, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Under the circumstances here discussed, we cannot agree.

The judgment is reversed and the prosecution ordered dismissed.

      . There are some statutes in Chapter 45 of the Code of Criminal Procedure which refer to “judgment and sentence” in justice of the peace and corporation courts (now municipal courts). The phrase “and sentence” was added by mistake in the closing days of the 59th Legislature, 1965, to these statutes. The definition of a sentence in Article 42.02, supra, was overlooked. The mistake was repeated in some amendments to some of the statutes in Chapter 45 in 1971.

      . Article V, § 5, Texas Constitution, provides that the Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, “with such exceptions and under such regulations as may be prescribed by law.”

        Article 4.03, V.A.C.C.P., provides:
      “The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law shall not exceed one hundred dollars.”
      Thus, it is well established that where the fine imposed does not exceed $100.00, exclusive of costs, on a trial de novo on an appeal taken to a county court from a municipal or justice of the peace court, such judgment of the county court is final and no appeal lies therefrom to the Court of Criminal Appeals. See Article 4.03, supra, Annotations, n.17. See also Williams v. State, 170 Tex.Cr.R. 121, 339 S.W.2d 63 (1960).
      The above stated rule in the instant case would have no application to misdemeanor cases such as the instant one where the fine imposed by the county court following a trial de novo does not exceed $100.00.

      . See Articles 4.01 and 4.14, V.A.C.C.P. It is also noted that the name of corporation court used in the Code of Criminal Procedure was changed to “municipal court” by Acts 1969, 61st Leg., p. 1689, ch. 547. See Article 1194A, V.A.C.S. The punishment for the speeding offense under Article 670Id, § 166A, is set by § 143 at “a fine of not less than One ($1.00) Dollar nor more than Two Hundred ($200.00) Dollars.”


text:
    Ricky Dale RAMSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 57280.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 29, 1978.
    Michael L. McLeaish, Odessa, for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated rape, wherein the punishment was assessed by the jury at forty-five (45) years’ confinement in the Department of Corrections.

On appeal appellant, in a single ground of error, urges that the trial court “erred in its failure to conduct a pre-trial hearing to determine competency to stand trial after the Defendant made a timely request for a preliminary hearing on his competency to stand trial.”

The offense was shown to have occurred on April 7, 1975. The trial commenced on August 10,1976. On that date, and prior to the voir dire examination of the jury panel, appellant’s counsel stated to the court that he had filed a motion for a pre-trial determination of the appellant’s competency to stand trial as in his opinion the appellant was not capable of making rational decisions or to aid his counsel in the preparation and conduct of his defense. The court determined that the day of the trial was the first time appellant had urged the motion and overruled it. The colloquy between the court and the attorney revealed that the court had ordered a psychiatric examination of the appellant in April, 1975 and that since that time no question had been raised by the defense, until the day of the trial.

After the jury was selected, then the appellant entered a plea of guilty and was admonished by the trial court. The court in its charge instructed the jury in part that the appellant had been admonished and then added:

“. . .It plainly appearing to the Court that the Defendant is mentally competent, and that he is not influenced to make said plea by any consideration of fear, persuasion, or any delusive hope of pardon prompting him to confess his guilt, his plea is by the Court received. You are instructed to find the Defendant guilty as charged in the indictment and assess his punishment.”

There was no objection to the court’s charge.

The formal judgment entered and found in this record, without objection, reflects in part:

“. . . and the said Defendant persisted in his plea; and it plainly appearing to the Court that the Defendant is sane and that he is uninfluenced in making said plea . . . .” (Emphasis added.)

Appellant cites and relies on Vardas v. State, 488 S.W.2d 467 (Tex.Cr.App.1972); Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr. App.1973), and Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975). In Vardas the court reversed the conviction stating, “Even where no request or demand is made for a preliminary hearing but evidence as to the accused’s present incompetence becomes sufficiently manifest during the trial on the merits, then due process of law would require the trial judge to halt the trial and conduct a hearing on that issue on his own initiative before proceeding further.” In Ainsworth, the court quoted from Vardas with approval, but noted the court stopped and, after an inquiry, determined that an issue of competency to stand trial was not raised. The record supported the court’s determination. The conviction was affirmed. In Bonner it was held that even if evidence at trial sufficiently raised the issue of defendant’s competency, where the trial judge, after further inquiry and discussion, determined that a competency hearing was not necessary and defendant did not object to such determination but instead withdrew his not guilty plea and entered a guilty plea, defendant could not raise on appeal the issue of whether a separate competency hearing should have been held.

In the instant case appellant claims to have filed a written motion for a pre-trial hearing on competency, but as earlier observed, there is no written motion in the record. Shortly after the motion was overruled and the jury selected, appellant entered a plea of guilty. He does not point to any evidence in the record which raised the issue of competency during the trial. It is observed that the twenty year old appellant testified and his testimony appears lucid and rational. The issue of competency was not raised during the trial.

The only question left is whether, under the circumstances, the court erred in failing to respond to appellant’s pre-trial motion, assuming one was filed.

§ 2(a) of Article 46.02, V.A.C.C.P., in effect at the time of appellant’s trial (Acts 1975, 64th Leg., p. 1095, ch. 415, § 1, eff. June 19, 1975) reads:

“Sec. 2(a). The issue of the defendant’s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.” (Emphasis added.)

First, without any motion in the record, we cannot determine if the motion was filed prior to the date set for trial on the merits so as to make the foregoing statute applicable. Further, if applicable, no hearing is required unless the court determines there is evidence to support a finding of incompetency.

While the record is not well developed on this point, it appears there had been a previous psychiatric examination, and that thereafter neither appellant nor his counsel took any action to secure a competency hearing until the time of trial. The inference is left from colloquy at the bench that the psychiatric report was not favorable to appellant’s later claim of incompetency. Counsel stated to the court the motion urged for the first time on the day of trial was based on his personal opinion. We cannot conclude that the court erred in overruling the motion. This is particularly true since shortly after such motion was overruled the appellant entered a plea of guilty, represented by the same counsel who had “filed” the motion. See and cf. Bonner v. State, supra.

Appellant’s contention is overruled.

The judgment is affirmed.

      . We find no such motion in the appellate record before us.

      . The State has filed no brief in this cause.


author: ODOM, Judge.

text:
    Charles Merle THOM, Appellant, v. The STATE of Texas, Appellee.
    No. 57325.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 29, 1978.
    Jack Hampton, Dallas, for appellant.
    Felipe Reyna, Dist. Atty., and Lynn W. Malone, Asst. Dist. Atty., Waco, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

The conviction in this case, upon a plea of guilty, was for unlawful possession of marihuana. Punishment was assessed at five years and a $1000.00 fine.

The sole ground of error states:

“The trial court committed reversible error by denying the defendant the right to call witnesses in his own behalf at the hearing on sentencing.”

The record shows that on January 27, 1977, the plea of guilty was accepted by the trial court. After finding the appellant guilty, the court assessed the punishment and then reset the sentencing to a later date pending a probation report. After calling the case on two prior dates, the court finally called it on June 27, 1977, and sentenced the appellant.

The argument is that appellant should have been allowed to call witnesses on June 27, 1977.

First, there is no bifurcated trial at a plea of guilty trial. Second, even so, no offer of proof is shown as to what any witnesses would have testified to.

No error is shown. The judgment is affirmed.


text:
    Spencer JOLES, Appellant, v. The STATE of Texas, Appellee.
    No. 57500.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 29, 1978.

      Frank B. Murchison, Corsicana, on appeal only, for appellant.
    Pat Batchelor, Dist. Atty., W. D. Ralston, Jr., Asst. Dist. Atty., Corsicana, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to an indictment charging him with a subsequent offense of driving an automobile over and upon a public road in Navarro County while under the influence of intoxicating liquor. The punishment was assessed at imprisonment for three years.

The appeal is before us on the following four grounds of error:

“I.
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING A JUDGMENT OF CONVICTION BASED UPON THE INDICTMENT FOUND IN THE TRANSCRIPT AT PAGE 7, BECAUSE THE INDICTMENT FAILS TO ALLEGE THAT THE DEFENDANT WAS OPERATING HIS MOTOR VEHICLE UPON A ‘STREET OR ALLEY WITHIN THE LIMITS OF AN INCORPORATED CITY, TOWN OR VILLAGE’ WHEN IN FACT THE DEFENDANT WAS ARRESTED WITHIN THE CITY OF CORSICANA, TEXAS, BY CITY POLICEMEN OF THE SAID CITY.
“II.
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING A JUDGMENT OF CONVICTION AGAINST THE DEFENDANT UPON AN INDICTMENT AND EVIDENCE IN SUPPORT OF SUCH INDICTMENT WHICH ALLEGED AND PROVED A PRIOR MISDEMEANOR CONVICTION FOR D.W.I. DATED JUNE 1, 1953, BECAUSE THE SAME WAS OVER TWENTY-TWO (22) YEARS REMOTE, WAS STALE AND BARRED FROM USE AS A MATTER OF LAW.
“HI.
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SENTENCING THE DEFENDANT FOR A TERM OF ONE (1) DAY TO THREE (3) YEARS IN THE STATE PENITENTIARY BASED ON A JUDGMENT ENTERED FINDING THE DEFENDANT GUILTY OF D.W.I., WHEN THE LAWFUL RANGE OF PUNISHMENT FOR D.W.I. IS NOT LESS THAN THREE (3) DAYS NOR MORE THAN TWO (2) YEARS IN COUNTY JAIL.
“IV.
“IN THE ALTERNATIVE TO GROUND OF ERROR NO. Ill, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING A JUDGMENT OF RECORD FOR D.W.I., AFTER PRONOUNCING JUDGMENT IN OPEN COURT FOR D.W.I. SUBSEQUENT OFFENSE, THE TWO OFFENSES BEING SEPARATE AND INDEPENDENT.”

We overrule these contentions and affirm the judgment of the trial court.

Art. 6701/-2, Vernon’s Ann.Civ.St., provides: ?

“Any person who has been convicted of the misdemeanor offense of driving or operating an automobile or other motor vehicle upon any public road or highway in this state, or upon any street or alley within an incorporated city, town or’village, while intoxicated or under the influence of intoxicating liquor, and who shall thereafter drive or operate an automobile or other motor vehicle upon any public road or highway in this state, or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall for each and every subsequent such violation be guilty of a felony; and upon conviction shall be punished by a fine of not less than One Hundred ($100.00) Dollars nor more than Five Thousand ($5,000.00) Dollars or confinement in the county jail not less than ten (10) days nor more than two (2) years, or by both such fine and imprisonment, or by confinement in the state penitentiary not to exceed five (5) years.”

In his first ground of error appellant argues that, since the indictment alleged that appellant drove an automobile “over and upon a public road” in Navarro County, the conviction cannot stand, because the proof showed that appellant was arrested within the city limits of Corsicana by the Corsicana City Police. He further argues that, to properly charge appellant with the offense under the instant case, the indictment should have alleged that appellant drove his automobile upon a street or alley within the incorporated city limits of Corsi-cana.

Appellant’s first contention was decided adversely to him in the case of White v. State, 131 Tex.Cr.R. 69, 95 S.W.2d 429 (1936). There it is stated:

“Appellant contends that there is a variance between the proof and the allegation in the indictment as to the place where the automobile was operated. In short, it is his position that proof that the car was operated on a public street in the city of Wellington will not sustain the allegation that said car was operated on a public highway in the county of Collings-worth. This contention cannot be sustained. We have expressly held that a street within a city is a public road within the meaning of the statute (Vernon’s Ann.P.C., art. 802). Blackman v. State, [Tex.Cr.App., 20 S.W.2d 783], As already observed, in Blackman’s Case the indictment charged that, while intoxicated, the accused drove a motor vehicle upon a public highway situated in Randall county, Tex. The proof on the part of the state was to the effect that the car was driven upon various streets of Amarillo, an incorporated city. It was also shown that certain of the streets of Amarillo upon which the car was driven were in Randall county, Tex. We held that there was no variance.”

In his second ground of error appellant contends that it was error for the State to use a prior misdemeanor conviction for the offense of driving an automobile upon a public road while intoxicated, because the conviction occurred over 22 years prior to the instant violation and was too remote, stale, “and barred from use as matter of law.” However, a review of Art. 67017 -2, supra, reveals that it contains no time limitation as to the use of the prior misdemean- or conviction.

In the case of Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977), the defendant was convicted for unlawful possession of a firearm by a felon in violation of V.T.C.A., Penal Code, Sec. 46.05. That statute makes it a third-degree felony for a person who has been convicted of a felony involving an act of violence or threatened violence to a person or property to possess a firearm away from the premises where he lives. The evidence against Milligan showed that he possessed a pistol in violation of the statute, having a previous California conviction for robbery in 1950. On appeal Milligan argued that the 1950 conviction was too remote in time. In overruling appellant’s contention, it was stated:

“Appellant further argues that the pri- or felony involving an act of violence alleged as a basis for this prosecution, having occurred in 1950, was too remote in time. However, we construe this statute to be similar to the enhancement statute, V.T.C.A., Penal Code, Sec. 12.-42(d). In Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977), this court held that, unlike the rule that a prior conviction too remote in time cannot be used for impeachment purposes, a prior conviction may be utilized for enhancement no matter how remote. Similarly, a prior conviction may be utilized under V.T.C.A., Penal Code, Sec. 46.05, no matter how remote.”

The rationale of Milligan is equally applicable in the present case. Consequently, we hold that a prior misdemeanor conviction for driving an automobile upon a public road while under the influence of intoxicating liquor may be utilized under Art. 67017-2, supra, no matter how remote.

Appellant’s third and fourth grounds of error relate to the fact that both the judgment and sentence recite that appellant stands convicted of “D.W.I.” Where, as in the present case, this Court has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal. Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972). The indictment charged appellant with a subsequent offense of driving a motor vehicle upon a public road in Navarro County while under the influence of intoxicating liquor. The trial court found appellant “guilty as charged in the indictment.” In pronouncing sentence the trial court stated that appellant had previously been found guilty of the offense of “D.W.I. subsequent offence, . . .” Consequently, pursuant to our authority under Art. 44.24(b), Vernon’s Ann.C.C.P., the judgment and sentence are reformed and corrected to reflect that appellant stands convicted of the subsequent offense of driving an automobile upon a public road in Navarro County while under the influence of intoxicating liquor.

As reformed, the judgment is affirmed.


text:
    Annie M. TENON, Appellant, v. The STATE of Texas, Appellee.
    No. 57569.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 29, 1978.
    Alvan N. Wells, Jr., Killeen, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin, wherein the punishment was assessed by the court at four (4) years’ imprisonment after the appellant waived trial by jury and entered a guilty plea before the court.

In her sole ground of error, appellant contends that the trial court erred in failing to follow the mandatory provisions of Article 42.07, V.A.C.C.P., in that the court failed to ask her whether she had anything to say before sentence was pronounced.

Article 42.07, V.A.C.C.P., provides:

“Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced, are:
“1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged.
“2. That the defendant is incompetent to stand trial; and if evidence be shown to support a finding of incompetency to stand trial, no sentence shall be pronounced, and the court shall proceed under Article 46.02 of this code;
“3. Where there has not been a motion for a new trial or a motion in arrest of judgment made, the defendant may answer that he has good grounds for either or both of these motions and either or both motions may be immediately entered and disposed of, although more than ten days may have elapsed since the rendition of the verdict; and
“4. When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be the same has been arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury as to his identity.”

The appellate record before this court, without an objection thereto by the appellant, contains a formal sentence reflecting in part:

“. . . And thereupon the Defendant was asked by the Court whether _he had anything to say why said sentence should not be pronounced against hIM, and the Defendant answered nothing in bar thereof, . . . ”

Appellant acknowledges that the formal sentence contains such recital, but contends it is not supported by the transcription of the court reporter’s notes. An examination of such transcription reflects that at the time of sentencing the trial court inquired if there were any motions on file and was told by defense counsel that there were none, but that notice of appeal would be given after sentencing. There were no objections to the court’s failure to inquire of the appellant if she had anything to say why the sentence should not be pronounced against her. There was no contention then or now that any of the statutory reasons set out in Article 42.07, supra, to prevent the pronouncement of sentence ever existed.

In Graham v. State, 498 S.W.2d 197 (Tex.Cr.App.1973), it was held that where there was no objection in the trial court that defendant had been denied the right of allocution, no error was shown on claim that recitation in formal sentence that defendant was asked by the court whether he had anything to say why sentence should not be pronounced against him and he answered nothing in bar thereof was not supported in the transcription of the court reporter’s notes.

Appellant acknowledges the holding in Graham, but urges that such holding was dependent upon the fact that Graham waived time to file notice of appeal and accepted sentence. She contends that this distinguishes Graham from her case since she did not waive filing notice of appeal.

It is true that in Graham the court’s opinion noted the failure to object and then added, “The record does show that the appellant waived the time for filing notice of appeal and was ready to accept the sentence. No error is shown.” This, however, appears to have been an error in the opinion. An examination of the record and opinion in Graham shows that Graham waived the time in which to file a motion for new trial and accepted sentence on August 30, 1972. He filed a motion for new trial on September 6, 1972 and on September 8,1972 gave notice of appeal. Thus, the facts of the case do not support the statement Graham waived filing notice of appeal and was ready to accept sentence. Obviously the opinion should have stated that Graham waived time in which to file motion for new trial and was ready to accept sentence. Further, in most cases notice of appeal is not to be given or filed until after sentencing. See Article 44.08(c), V.A.C.C.P. As clarified, we conclude that Graham is dispositive of appellant’s contention. See also Valdez v. State, 479 S.W.2d 927 (Tex.Cr.App.1972); Johnson v. State, 14 Tex.App. 306 (1883).

Surely appellant would not have this court reverse this cause and order a new sentencing so that when the court asks her if she has anything to say why sentence should not be pronounced against her she can then answer “Nothing.”

The judgment is affirmed.


text:
    Alfonso Lerma MARQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 57659.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 29, 1978.
    Michael R. Gibson, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Judy Lynn Sanders, Asst. Dist. Atty., El Paso, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of burglary of a habitation. Punishment was assessed at 12 years’ confinement in the Department of Corrections.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by advancing a contention which counsel says might arguably support the appeal. See Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Jackson v. State, 485 S.W.2d 553 (Tex.Cr. App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). A review of the record, however, reveals matters which require an abatement of this appeal.

The judgment contained in the record reflects that appellant entered a plea of guilty on July 13, 1977, and was apparently represented by retained counsel. Appellant was sentenced on July 29, 1977, and gave notice of appeal in open court. The record reflects that on the same date the trial court appointed counsel to represent appellant on appeal.

Notice of completion of the record in this cause was sent to appellant’s court-appointed counsel on October 31,1977. On November 9, 1977, appellant’s counsel filed objections to the record because no statement of facts had been prepared for inclusion in the record. On November 21, 1977, the trial court conducted a hearing and considered appellant’s objection to the record. On November 23, 1977, the trial court entered an order sustaining the objections to the record and ordered that the statement of facts be included in the record on appeal. Furthermore, on November 21, 1977, appellant’s counsel filed a motion for extension of time to file a transcription of the court reporter’s notes in this Court; and such motion was granted and the time for filing said item was extended until November 30, 1977.

A subsequent item in the record is confusing and inconsistent. The approval of the record is signed by the trial court, but it is also dated and filed on November 21, 1977. The approval of the record states:

“The Clerk of the Court having duly notified the parties or the respective counsel that the record in the above entitled and numbered proceeding was complete, and neither party nor their counsel having filed or presented to the Court any objections to the record after due notice was given and within the time provided by the Texas Code of Criminal Procedure, and the Court having examined the record consisting of 63 pages and found by the Court to be correct, and the Court having no objections to the record, and it further appearing to the Court that the record should be approved and filed; (Emphasis added)
“It is, therefore, the ORDER of the Court and the Court does hereby approve the foregoing record of 63 pages as the record in the cause, and the Court ORDERS the same approved and filed as the record in the above cause.”

The above-quoted approval of the record further orders defendant’s brief to be filed with the clerk of the court on or about the 21st day of December, 1977. The frivolous appeal brief filed by appellant’s court-appointed counsel was filed on December 7, 1977.

In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the United States Supreme Court held that indigent defendants were denied equal protection of the laws where the merits of the one appeal they had from their convictions were decided without the benefit of counsel. See Lopez v. State, 486 S.W.2d 559 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), held that an indigent is entitled to a free transcript on appeal.

The record reflects that while appellant may have been represented by retained counsel at trial, the trial court determined that appellant was indigent for the purposes of appeal and appointed counsel to represent him. We note that while the record in this cause contains a transcription of the court reporter’s notes at the sentencing hearing, appellant’s counsel’s objections to the record were well taken because the transcription of the court reporter’s notes of the hearing at the trial on appellant’s plea of guilty is totally absent from the record. We assume that the order approving the record was inadvertently entered in this cause because on the same date that the record was approved, November 21, 1977, the trial court was conducting a hearing on appellant’s objections thereto. Two days later on November 23, 1977, the trial court granted appellant’s objections to the record for failure to include a statement of facts in the record.

We also note that the order of this Court granting an extension of time to file a transcription of the court reporter’s notes until the 30th day of November, 1977, was filed with the El Paso County District Clerk on November 28, 1977. The court reporter, however, has totally failed to comply with this order. However, due to the inconsistent orders of the trial court concerning the approval of this record, we will abate the appeal so that the court reporter can file a statement of facts in the trial court on or before 30 days after the mandate in this cause issues. Further proceedings shall then be had in the trial court in accordance with Article 40.09(7), etc., Vernon’s Ann.C. C.P.

The appeal is abated.

      . In addition to a formal order appointing Mr. Mike Gibson to represent appellant on appeal, the transcription of the court reporter’s notes of the sentencing hearing reflects that it was appellant’s intention to appeal and the court concurred that appellant was indigent and indicated to appellant that he would appoint an attorney to represent appellant on appeal.

      . While appellant’s court-appointed counsel might once again conclude that the appeal is wholly frivolous and without merit, it is difficult to perceive how counsel fulfilled his obligation delineated in Anders v. California, supra, when the complete statement of facts did not appear in the record for counsel’s review.


text:
    Vernon RICHARD, Appellant, v. The STATE of Texas, Appellee.
    No. 57981.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 29, 1978.
    Before ROBERTS, PHILLIPS and VOL-LER, JJ.
   OPINION

PHILLIPS, Judge.

Appellant waived trial by jury and entered a plea of nolo contendere before the court to the offense of theft by check, a Class A misdemeanor. The court assessed punishment at a fine of $300.00. V.T.C.A., Penal Code, Sec. 31.03(d)(3).

The record is before us without a transcription of the court reporter’s notes or bills of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09(9), Vernon’s Ann.C.C.P. There is no showing of indigency.

However, there exists a fundamental defect in the charging instrument which requires our attention in the interest of justice. Article 40.09(13), V.A.C.C.P. The information alleges, in pertinent part, that appellant “did then and there unlawfully appropriate property, to-wit: Merchandise . .” It is clear that “merchandise” is so insufficient a description as to amount to no description and it will render an indictment fundamentally defective. Willis v. State, Tex.Cr.App., 544 S.W.2d 150; Rhodes v. State, Tex.Cr.App., 560 S.W.2d 665 (1978). No distinction can be properly made when the prosecution rests on an information, as opposed to an indictment. Article 21.21(7), V.A.C.C.P.; American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598. We therefore reverse the conviction and dismiss the prosecution.