author: ONION, Presiding Judge.

text:
    Jose Socorro FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 52981.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Rehearing Denied June 14, 1977.

      William E. Adams, San Saba, on appeal only, for appellant.
    Louis M. Crump, Dist. Atty., San Saba, Jim D. Yollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder. Punishment was assessed by the jury at life imprisonment.

This is a circumstantial evidence case, and the appellant in his sole ground of error challenges the sufficiency of the evidence to sustain the conviction.

The appellant was jointly indicted with Israel Quiles for capital murder. Omitting the formal parts, the indictment charged “that Jose Socorro Flores and Israel Quiles on or about the 24th day of December A.D. 1974, and before the presentment of this indictment in the County of San Saba and State of Texas, did then and there intentionally cause the death of Robert Kenneth Perkins by shooting him with a gun, and that the said Jose Socorro Flores and Israel Quiles were then and there in the course of committing and attempting to commit robbery . .

The record reflects the deceased, Robert Kenneth Perkins, left his daughter’s home in Tulsa, Oklahoma on the morning of December 23, 1974. He was to visit his sister in Norman, Oklahoma and his ultimate destination was the Y 0 Ranch in Texas at Mountain Home near Kerrville where he was employed.

On the morning of January 19, 1975 the partially decomposed body of the deceased was found by Marvin Weatherby off the highway about five miles north of San Saba. The body was frozen.

Sheriff Brantley Barker arrived at the scene and had the body removed to a funeral home in San Saba. An autopsy was performed in San Antonio the next day by Bexar County Medical Examiner Dr. Ruben Santos. Two bullet holes were found, one behind the right ear and one on the right side of the neck. Two bullets or fragments were removed from the deceased’s head and neck and turned over to the sheriff. Dr. Santos related the bullet wounds to the head and neck caused the death and the wounds had been caused by a small caliber gun. He was not questioned as to the time of death.

A traffic ticket was found on the body, and the arresting officer was contacted. Highway Patrolman Bob Wilcox testified that about 5:45 p. m. on December 24, 1974 he stopped the deceased in Mills County between Goldthwaite and San Saba for speeding. The deceased was driving a 1966 white Chrysler four door car bearing 1974 Missouri license plate number EX0590. The deceased had a Michigan driver’s license which conformed to his appearance. The deceased gave as his residence the Y 0 Ranch at Mountain Home. Wilcox had the deceased sit in the patrol car while he issued the traffic ticket. He observed that “there were three Latin-American subjects” in the back seat of the Chrysler and that the deceased was pulling a boat and trailer. The deceased drove off in a southerly direction on State Highway # 16 towards San Saba.

A day or two after Christmas, 1974, a boat was reported to be three or four miles south of San Saba on State Highway # 16. It was recovered by Sheriff Barker.

Highway Patrolman Bill Rowan testified he was stationed in Pearsall in Frio County, which is located 53 miles south of San Antonio on Interstate 35, and that while patrolling that highway in Frio County he stopped the appellant Flores for speeding at 5:20 p. m. on December 25, 1974. A traffic ticket was issued. One other person was with the appellant, who was driving a 1966 white Chrysler, 1974 Missouri license plate number EX0590. No description was given of the other person.

On February 6, 1975 Weslaco police officer Saul Penedas observed the appellant asleep in a white 1966 Chrysler, Texas license number KNB 851 parked in a rest area. He observed that the rear license plate was covered with bugs while the front license plate was apparently clean, and he did not consider this normal. Penedas ran a license check and discovered that KNB 851 had been issued to a 1967 Ford. The Chrysler had two inspection stickers, one for a 1967 Pontiac and one for a 1964 Buick. Appellant identified himself with a driver’s license and his companion in the driver’s seat gave the officer a Wisconsin work permit with his name, Israel Quiles. Appellant stated he was the owner of the Chrysler and had just purchased it in Laredo. Appellant stated his car papers were in the trunk and he voluntarily opened the trunk. When he did, Penedas saw a syringe, a capsule and other narcotic paraphernalia. Appellant and his companion were arrested. A check showed that the Chrysler was the one registered to the deceased in Missouri and given license plate number EX0590.

A receipt from Victor Ramirez was found on appellant and his companion. Ramirez testified he operated a tavern about 10 miles north of Weslaco and that there he saw the appellant and Israel Quiles sometime in January, 1975. He reported they asked him to keep some personal belongings in a suitcase and he agreed and placed it in the trunk of the car near the tavern. Ramirez opened the trunk for Ranger Bruce Castille, who recovered the suitcase, including clothing and other items.

Theresa Lorenzo, the deceased’s daughter, identified a shaving kit, lotion and keys in the suitcase as belonging to her father. One of the keys was to her house in Tulsa, Oklahoma. She also identified some of the clothing recovered as being those of her father.

Bobby Rhodes of the Y 0 Ranch, where the deceased had frequently worked, testified that deceased left Kerrville about December 10, 1974 to go to Missouri. Rhodes recognized some of the clothes found in the recovered suitcase as some he had given the deceased. He identified other clothing found therein as those he had seen the deceased wear on occasion. He related that the deceased owned a Thompson Center Contender pistol with a 5 mm. barrel, “a little smaller caliber than a .22, about a .20 caliber.” He testified the deceased had taken the gun with him on his trip.

Fred Reymer, firearms expert with the Department of Public Safety, testified the ballistics test on the bullets or bullet fragments submitted to him by Sheriff Barker showed they came from a .22 caliber pistol that was high powered and required a metal jacket. A Thompson Center Contender pistol was one of three types of weapons he indicated the bullets could have been fired from.

Ranger Bob Favor cut out a portion of the front seat of the Chrysler where bloodstains were found, and this item and a shirt with bloodstains which was claimed by appellant were submitted for lab analysis.

Chemist Janice Hoskins of the Department of Public Safety laboratory testified that one piece of the seat covering had human blood on it as well as appellant’s shirt, but these stains would not respond to typing procedures. She also related that the deceased’s shirt submitted by Sheriff Barker contained nitrate particles, indicating gun powder residue.

The court in its charge submitted murder (V.T.C.A., Penal Code, § 19.02) rather than capital murder (V.T.C.A., Penal Code, § 19.-03), as charged in the indictment. The court, among other things, charged on the law relating to parties to the offense and criminal responsibility and the law of circumstantial evidence.

It is well established that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt and proof amounting only to a strong suspicion is insufficient. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Higgins v. State, 515 S.W .2d 268 (Tex.Cr.App.1974); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973); Flores v. State, 489 S.W.2d 901 (Tex.Cr.App.1973); Gulmore v. State, 447 S.W .2d 915 (Tex.Cr.App.1969).

In circumstantial evidence cases it is not necessary, however, that every fact point directly and independently to the defendant’s guilt. It is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Mills v. State, 508 S.W .2d 823 (Tex.Cr.App.1974); Herndon v. State, 543 S.W.2d 109 (Tex.Cr.App.1976). The rules of circumstantial evidence do not require that the circumstances should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, but the hypothesis intended is a reasonable one consistent with the circumstances and facts proved, and the supposition that the act may have been committed by another person must not be out of harmony with the evidence. Jones v. State, 442 S.W.2d 698 (Tex.Cr.App.1969); Taylor v. State, 87 Tex.Cr.R. 330, 221 S.W. 611, 615 (1920).

In determining whether incriminating circumstances are sufficient, each case must be tested by its own facts. Moore v. State, supra; Indo v. State, supra; Baker v. State, 447 S.W.2d 172 (Tex.Cr.App.1969); Ysasaga v. State, 444 S.W .2d 305 (Tex.Cr. App.1969).

In Moore v. State, supra, it was stated:
“Ordinarily, the test on appeal is whether there was evidence from which the jurors (advised of the restrictions the law places upon them in condemning one on circumstantial evidence) might reasonably conclude that every reasonable hypothesis other than guilt was excluded. Ysasaga v. State, supra (444 S.W.2d 305). Mere presence in the vicinity of a crime, even when coupled with flight, is not alone sufficient to sustain a conviction. Ysasaga v. State, supra.”

In 24 Tex.Jur.2d, Evidence, § 742, p. 422, it is written:

“In criminal cases, 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 elements of the offense charged. . . . ” See also Culmore v. State, supra; Ysasaga v. State, supra.

The testimony shows that the deceased was alive on December 24, 1974 when officer Wilcox gave him a speeding ticket in Mills County about 5:45 p. m. At the time he was with “three Latin-American subjects,” but Wilcox did not describe them. The record does not show whether they were male or female, adults or children, or their appearance even in a general way. The deceased was pulling a boat and drove off towards San Saba.

The deceased’s body was found on January 19, 1975. Dr. Santos testified that the head and neck were partially decomposed and covered by maggots but the balance of the body was in a fairly good state of preservation “probably . . . having been frozen for some time.” The doctor was not questioned as to the time of death, and the record is otherwise silent as to that question except as otherwise inferred from the doctor’s testimony above. It is not possible to tell just when between December 24, 1974 and January 19, 1975 the death of the deceased occurred.

The deceased’s body was found north of San Saba and a day or two after Christmas a boat was reported to be three or four miles south of San Saba and was recovered by the sheriff. This evidence was apparently offered to show that whomever committed the crime charged left the body and continued in a southerly direction. The problem is that no evidence was offered to show that the recovered boat was similar to the one being pulled by the deceased nor was any evidence of ownership or registration demonstrated to connect the recovered boat with the one in the deceased’s possession on December 24th.

The evidence does place the appellant in possession of the deceased’s Chrysler in Frio County approximately 24 hours after officer Wilcox saw the deceased alive in Mills County and many miles away. At this time appellant was with another individual who was not identified in any manner.

On February 6, 1975 appellant was still found in possession of the deceased’s Chrysler in Weslaco in the Rio Grande Valley area. It bore license plates and inspection stickers issued to other cars. Clothing and other items belonging to the deceased were found in a suitcase in a car trunk where they had been left by the appellant and Israel Quiles.

The murder weapon was never found, though the State attempted to leave the inference that it could have been with the deceased’s own pistol. Bloodstains were found on the Chrysler’s front seat and on appellant’s shirt, but it was not shown when the stains could have been made. While the stains were of human blood, they did not respond to typing procedures.

This then is the evidence against the appellant, the most damaging of which is that he was in possession of the deceased’s car about twenty-four hours after the deceased was last seen alive, and that on February 6, 1975, he was still in possession of the car bearing license plates issued to another car, etc., as well as having stored a suitcase with many items belonging to the deceased.

It is true that an accused’s recent unexplained possession of a victim’s stolen property may be sufficient to sustain a conviction for robbery, Bonner v. State, 492 S.W.2d 498 (Tex.Cr.App.1973); Batiste v. State, 464 S.W.2d 149 (Tex.Cr.App.1971); Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App.1970), or a conviction for theft, Barnes v. State, 520 S.W.2d 401 (Tex.Cr.App.1975); Smith v. State, 518 S.W.2d 823 (Tex.Cr.App.1975), or a conviction for burglary, Pulido v. State, 503 S.W.2d 578 (Tex.Cr.App.1974). Further, it is well settled that evidence of a defendant’s possession of the fruits of a crime are admissible in a murder case, Skidmore v. State, 530 S.W.2d 316 (Tex.Cr.App.1975). We know of no case, however, where recent unexplained possession by an accused of a victim’s stolen property is sufficient by itself to sustain a conviction for murder.

In the instant case there is no showing that the appellant was at or near the scene of the crime and no showing as to actual time of the deceased’s death. While the appellant was placed in possession of deceased’s car on the dates mentioned as well as other items of deceased’s property, this proof when coupled with all other circumstances to be considered amounts only to proof of a strong suspicion or mere probability that the appellant acting alone or together with another committed the murder charged. It does not exclude to a moral certainty every other reasonable hypothesis except the appellant’s guilt.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Leslie ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 52843.
    Court of Criminal Appeals of Texas.
    May 11, 1977.
    Rehearing Denied June 8, 1977.
    William C. Sherk, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and James C. Butts, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for robbery; punishment was assessed at ten years.

Appellant contends the trial court erred in denying his motion for new trial. He argues the evidence presented at the hearing on his motion for new trial demonstrates violation of Art. 40.03(7), which provides in part:

“New trials, in cases of felony, shall be granted for the following causes

******

“(7) Where the jury, after having retired to deliberate upon a case, has received other testimony; . . . ” (Emphasis added.)

During the trial the appellant attempted to impeach or rebut the identification evidence presented by the State. Shortly after the robbery, the two complaining witnesses informed the police that the man who committed the offense was 5' 11" or six feet tall and he weighed approximately 160 lbs. Appellant was arrested after the two complaining witnesses identified him from a photographic display. Appellant’s evidence on identification consisted of the testimony of Lt. Johnson, the supervisor of the El Paso County Jail, who testified that the appellant was 5' 8" and weighed 133 lbs.

The record of the hearing held on the motion for new trial contains the testimony of the foreman of the jury and another juror. The foreman testified he told the other members of the jury during deliberations that, he had been in an armed robbery and that he could identify the perpetrator of that crime within three years of the offense. The other juror testified the foreman stated he had been a victim of a robbery and told them “you never forget a face in a robbery if you had been a victim of a robbery.” The fact that such statements were made during the jury deliberations on guilt is undisputed.

Article 40.03(7), supra, provides that a new trial shall be granted “Where the jury, after having retired to deliberate upon a case, has received other testimony; . .” This statute requires a new trial if the “other testimony” was adverse to the accused.

In the case at bar, identification was a central issue, and the foreman’s statement was adverse to appellant’s attack on that issue. See Embry v. State, 95 Tex.Cr.R. 488, 255 S.W. 190. It is the character of the evidence that controls the determination of this issue, and the Court will not speculate on the probable effects on the jury or the question of injury. See cases collected at note 802 to Art. 40.03 in Vernon’s annotations to the code. Unless there is a fact issue raised on whether the jury actually received the other evidence (see Honeycutt v. State, 157 Tex.Cr.R. 206, 248 S.W.2d 124), the statute requires reversal if the evidence was adverse to the defendant. The statutory provision here applied was designed by the Legislature to guarantee the integrity of the fundamental right to trial by jury by restricting the jury’s consideration of evidence to that which is properly introduced during the trial. To adequately safeguard that right from erosion, the Legislature in its wisdom created a per se rule. It is the duty of this Court to follow that mandate.

For receipt of other evidence adverse to appellant during jury deliberations, the judgment is reversed and the cause remanded.

      . “New trials, in cases of felony, shall be granted for the following causes . . . ” Art. 40.03, supra; emphasis added.


author: ONION, Presiding Judge. ODOM, Judge,

text:
    Eddie N. BARBOUR, Appellant, v. The STATE of Texas, Appellee.
    No. 53039.
    Court of Criminal Appeals of Texas.
    May 11, 1977.
    Rehearing Denied June 8, 1977.
    Ronald R. Waldie, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb and Rider Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for driving a motor vehicle on a public highway while intoxicated. Punishment was assessed at a year and six months in jail and a fine of $50.00.

The effect of appellant’s initial complaint on appeal, where he is represented by retained counsel, is that he was deprived of his constitutional right to counsel and that he represented himself without the obligatory warnings and admonishments.

The complaint and information were filed May 7, 1975. The cause was thereafter passed several times apparently at appellant’s request. On September 11, 1975, appellant’s retained counsel was allowed to withdraw on the stated ground of conflict and antagonism between attorney and client and the case was passed again to allow appellant to hire another attorney. On November 11, 1975, before the trial began, the record reflects the following:

“THE COURT: Mr. Barbour, the State has announced ready in your case, your case has been set several times before and you have indicated at this time that you want to represent yourself and that you do not intend to employ a lawyer, is that the way you feel?
“MR. BARBOUR: I was advised by an attorney to represent myself.
“THE COURT: Whatever advise you received, at this moment, do you intend to represent yourself?
“MR. BARBOUR: Yes, Your Honor. “THE COURT: What is the highest grade of education that you have attained?
“MR. BARBOUR: Bachelor of Arts, University of Southern California.
“THE COURT: How are you employed? “MR. BARBOUR: Unemployed, Your Honor.
“THE COURT: What is your major type of employment when you are employed? “MR. BARBOUR: Real estate broker, life insurance and disability insurance and casualty insurance, but all in the state of California.
“THE COURT: How old are you?
“MR. BARBOUR: Fifty-four.
“THE COURT: Were you born in the United States?
“MR. BARBOUR: Yes.
“THE COURT: Do you speak the English language and understand the English language?
“MR. BARBOUR: Yes.
“THE COURT: All right. Just have a seat. If you want to get a cup of coffee and be back in about thirty minutes, sir, we will be ready to start.”

There was no further inquiry into the matter nor any further investigation into the question of indigency. Likewise, there was no warning to appellant as to the wisdom or practical consequences of the choice of representing himself.

The record reveals that appellant was totally unacquainted with trial procedure and represents a classical example of why a layman accused, regardless of his level of education, should not attempt to represent himself. The trial court was constantly interrupting the trial attempting to explain procedure to the appellant and telling him what he could and could not do.

From the evidence, mostly from appellant’s own testimony, we glean the following facts. Appellant lived in California for 27 years where he stated he was a real estate broker and was in the insurance business prior to his return to Texas. Just when he returned to Texas was not revealed. He did state after returning his last employment was for six months in 1974 and that prior to that time he was convalescing while being supported by his wife. He related that at the time of his arrest he was on his way to a disability hearing at the Veterans Administration. At the penalty stage of the trial appellant stated he had no income and “his wife was taking care of things.”

It is well settled that the Fourteenth Amendment to the United States Constitution extends to the states as a matter of due process the Sixth Amendment provision of the same Constitution that in all criminal prosecutions the accused shall enjoy the right to the assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), and cases there cited. The constitutional right is applicable to both felony [Gideon v. Wainwright, supra] and misdemeanor cases [Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)]. Article I, § 10, of the Texas Constitution also provides for the right to counsel for an accused in a criminal prosecution. These provisions have been interpreted as requiring the appointment of counsel where the accused is indigent. Gideon v. Wainwright, supra; Argersinger v. Hamlin, supra. The appointment of counsel for indigents is also required by statute. See Article 26.04, Vernon’s Ann.C.C.P.

It is well established that an accused may waive his right to counsel. Argersinger v. Hamlin, supra; Webb v. State, supra; Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975); Smith v. State, 513 S.W.2d 586 (Tex.Cr.App.1974); King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Sanchez v. State, 454 S.W.2d 210 (Tex.Cr.App.1970). For a waiver of counsel to be valid, it must be voluntarily and knowingly made. Parker v. State, 545 S.W.2d 151, 155 (Tex.Cr.App.1977); Ex parte Ross, supra; Webb v. State, supra; Smith v. State, supra; Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973).

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

In Argersinger v. Hamlin, supra, the United States Supreme Court wrote:

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

In light of the record before us, we cannot conclude from the evidence that an affirmative waiver is reflected or that the State sustained the heavy burden which rests upon it to demonstrate such a waiver. See Parker v. State, supra.

It has, of course, been held in this State that a trial court may not force an accused to accept an attorney if he wishes to waive representation and defend himself. Webb v. State, supra, and cases there cited. And the United States Supreme Court in Faretta v. California, 422 U.S. 803, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. The court noted as it did in Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1943), that the Sixth Amendment right to assistance of counsel implicitly embodies a “correlative right to dispense with a lawyer’s help.”

In Faretta the Court wrote:

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits . . . Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”

In Webb v. State, supra, this court stated:

“When an accused makes known his desire to represent himself, the court should take care to ascertain that he fully understands the consequences of waiving his right to representation of counsel and proceeding to represent himself.”

In the instant case, not only does the record fail to reflect a voluntary and knowing waiver of the right to counsel, retained or appointed, but the record does not reflect that the appellant was made aware of the dangers and disadvantages of self-representation so as to establish that the appellant knew what he was doing and that his choice was made with his “eyes open.”

Therefore, the cause is reversed and remanded.

ODOM, Judge,

dissenting.

The majority reverse this conviction because the incomplete record before us fails to reflect a voluntary and knowing waiver by appellant of his right to counsel and because that incomplete record fails to reflect that he was made aware of the dangers and disadvantages of self-representation.

If the issue is to be addressed on the merits despite the deficiencies in the .record, the ground of error should be overruled. The record that is before us presents facts suggesting appellant has manipulated his right to counsel in such a manner as to defeat the orderly process of justice.

In Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App., 1977), the defendant was represented for five months before trial by appointed counsel. On the day of trial he complained for the first time that he did not want to be represented by that attorney. The author of the majority opinion and I agreed in his dissent to reversal of Thomas’ conviction that such manipulation of the right to counsel should not be sanctioned. In the case at bar appellant was represented by retained counsel almost four months prior to trial. Two months before trial that attorney was permitted by the court to withdraw and appellant was given the opportunity to hire another attorney. When his case came on for trial two months later, appellant still had not hired another attorney. Just as a defendant represented by appointed counsel should not be allowed to manipulate his right to counsel by waiting until the day of trial to reject his appointed counsel, so also should a defendant who is able to retain counsel and who has retained counsel not be permitted to manipulate his right to counsel by appearing on the day of trial without having hired an attorney.

The author of the majority opinion and I agreed on this general principle in Thomas v. State, supra, and I am at a loss to understand why he has apparently abandoned that recently stated position in the factual context of the instant case. If the issue is to be decided on the merits, the indications in the record of manipulation of the right to counsel should dictate denial of relief on this ground of error. For this reason, I dissent to reversal of the conviction.

Alternatively, I dissent to disposition of the issue on the merits because of the incomplete state of the record and the belated assertion of the issue by appellant.

The only transcribed reporter’s notes in the record before us show part of the proceedings on the day of trial. The docket sheet reflects five appearances prior to trial. At the first three appellant was represented by counsel. On the fourth date, September 11, 1975, counsel withdrew v/ith leave of court. On September 25 appellant again appeared without counsel. No record is before us of the proceedings on those dates.

The claim of denial of the right to counsel was first raised in the appeal brief. Consequently, the State has not been given an opportunity to rebut appellant’s claim of a violation of the right to counsel. Although appellant did file a motion for new trial, no assertion of a violation of the right to counsel was voiced therein. This Court does know from the docket sheet that the case was passed on September 11 in order to allow appellant to retain counsel, yet we do not know whether proper warnings and admonitions were given to appellant at that time. This Court also knows from the docket sheet that the case was passed for a jury trial on September 25, when appellant was not represented by counsel, yet again we do not know whether proper warnings and admonitions were given on that occasion. We also know that appellant did hire one attorney to represent him at trial, and that he is represented by retained counsel now.

I dissent to reversal of this conviction because the record before us is insufficient to determine the issue. If appellant’s right to counsel has been violated, he can pursue this claim collaterally. In that manner the State would be given an opportunity to challenge the claim and this Court would be presented with a complete record upon which to determine the issue.

In view of the majority’s disposition of this issue on the merits despite the incomplete state of the record, pro se defendants may secure “automatic” reversal by presenting an incomplete record to this Court and claiming a right to counsel violation. The State, on the other hand, would be well-advised, in view of today’s decision, to request inclusion of all proceedings in the record on any appeal from a pro se defendant’s conviction and to secure an agreed statement (Art. 40.09(14), V.A.C.C.P.), or bill of exception (Art. 40.09(6), V.A.C.C.P.), to show any admonishments, warnings or waivers occurring at proceedings where no court reporter was present in such a case. Only by such diligence may the State protect itself against being bushwhacked by a pro se defendant’s potential claim for the first time on appeal that no such admonishment, warning or waiver was made.

Appellant’s contention should be overruled on grounds of manipulation of the right to counsel or, alternatively, the issue should not be reached on the merits. For these reasons, I dissent.

DOUGLAS, J., joins in this dissent.


author: ONION, Presiding Judge. DOUGLAS, Judge,

text:
    Harold B. TEW, Appellant, v. The STATE of Texas, Appellee.
    No. 52845.
    Court of Criminal Appeals of Texas.
    May 18, 1977.
    Rehearing Denied June 14, 1977.
    Kenneth C. Lenoir, Killeen, for appellant.
    Joe Carroll, Dist. Atty., and Al W. Schorre, Jr., Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for unlawful possession of a firearm by a felon. V.T.C.A., Penal Code, § 46.05. Punishment was assessed by the court at eight (8) years in the Department of Corrections following a verdict of guilty.

At the outset we are confronted with a fundamentally defective indictment which requires review “in the interest of justice.” See Article 40.09, § 13, Vernon’s Ann.C.C.P.

V.T.C.A., Penal Code, § 46.05, provides:
“(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.
“(b) An offense under this section is a felony of the third degree.”

V.T.C.A., Penal Code, § 6.02, provides as follows:

“(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 higher degree of culpability than that charged constitutes proof of the culpability charged.”

It is clear from a reading of the definition of the offense in said § 46.05 that it does not itself prescribe a culpable mental state, but one is nevertheless required by said § 6.02, supra, unless the definition of the offense “plainly dispenses with any mental element.” 3 Branch’s Texas Anno. Penal Statutes, 3rd Ed., § 46.05, p. 598 (Explanatory Comment). The definition in said § 46.05, supra, does not plainly dispense with any mental element. See Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976). See and cf. Braxton v. State, 528 S.W.2d 844 (Tex.Cr.App.1975).

Omitting the formal parts, the indictment alleged that the appellant on or about May 27, 1975:

“did possess a firearm, namely a pistol, away from the premises where he lived, and that the said Harold B. Tew had been previously and finally convicted of the offense of Burglary, an act of violence against property, in Cause No. 18,909 in the 169th District Court of Bell County, Texas, on December 3, 1971.”

The indictment fails to allege any culpable mental state as required by said § 6.02 and is therefore fundamentally defective. See Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr.App.1976); Hazel v. State, supra; Price v. State, 523 S.W.2d 950 (Tex.Cr.App.1975); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976).

An indictment which does not allege an offense against the law is utterly insufficient and any conviction based thereon is void. Ward v. State, 520 S.W.2d 395, 397 (Tex.Cr.App.1975), and cases there cited.

The cause must be reversed and the prosecution ordered dismissed.

In the event of another trial upon another indictment, we call attention to one of appellant’s grounds of error. Appellant contends the court erred in charging the jury, over timely objection, with regard to the prior conviction alleged that “ . burglary is a felony involving an act of violence or threatened violence to a person or property.” He contends that whether the prior burglary conviction was such a felony was a fact issue for the jury, and the court charged as a matter of law that burglary is per se such a felony and fell into error in so doing.

Said § 46.05’s immediate forerunner was Article 489c, Vernon’s Ann.P.C., 1925, as amended. The former statute was directed at weapons which could be concealed on the person and concerned prior felony convictions involving an act of violence. Said § 46.05 expanded the prior law to include all firearms and all prior felony convictions involving “an act of violence or threatened violence.” (Emphasis supplied.)

The Practice Commentary to said § 46.05 expresses concern over the broad scope of the statute “in view of the imprecise statement of the kinds of felonies available to invoke this section . . . Some violent felonies require only recklessness, e. g. Section 19.04 (involuntary manslaughter); others require intent. Some felonies can be committed with or without violence or threats of violence, e. g. Sections 21.02 (rape), 30.02 (burglary).” (Emphasis supplied.)

The indictment is set out above and does not need to be repeated here. It is observed that it alleged the prior conviction of burglary was “an act of violence.”

The record reflects that appellant was arrested on Avenue D in downtown Killeen on May 27, 1975 with a pistol in his possession. Detective Tom Birchum of the Kil-leen Police Department testified he investigated a burglary of a building on September 15, 1971 and arrested appellant, who had been seen exiting a window by three witnesses. It was determined entry was made at the same window. The window frame contained no glass, but was covered by a piece of plywood nailed from the inside. The plywood had been pushed in. The officer testified that the building was not damaged and the plywood was not damaged and could be used again. It was established that the appellant did not use an axe, hammer or any instrument.

Under Article 489c, Vernon’s Ann.P.C. (1925), as amended in 1969, the precursor of said § 46.05, we held that it must be alleged and proven that the previous conviction involved an act of violence. Mendoza v. State, 460 S.W.2d 145 (Tex.Cr.App.1970); Waffer v. State, 460 S.W.2d 147 (Tex.Cr.App.1970). The indictments in both Mendoza and Waffer allege that the prior conviction was burglary, but failed to allege that the burglary offense is an act of violence. Both causes were reversed.

In footnote # 1 of Mendoza v. State, supra, it was written:

“The record shows that the indictment in the previous conviction alleges burglary with intent to commit theft. This was not shown to have involved violence. Burglary may be committed by one who enters a house in any manner and remains therein with intent to commit a felony or the crime of theft. Article 1389, V.A.P.C. Article 1394, V.A.P.C., provides, in part: ‘ * * * The slightest force, however, is sufficient to constitute breaking; it may be by lifting the latch of a door that is shut, or by raising a window, the entry at a chimney, or other unusual place, the introduction of the hand or any instrument to draw out the property through an aperture made by the offender for that purpose.”

It should be remembered that these statutes were in effect at the time of appellant’s 1971 conviction for burglary with intent to commit theft. The indictment therein alleged the appellant did “break and enter” a house, and the judgment found him guilty of “burglary by breaking with intent to commit theft.” This, however, does not convert burglary by breaking under the former Penal Code into an act of violence per se. See Mendoza v. State, supra (footnote # 1).

In the early case of State v. Robertson, 32 Tex. 159 (1869), the Texas Supreme Court, dealing with penal provisions the same as were in existence in 1971 when appellant was convicted of burglary, concluded that burglary by breaking did indeed imply some actual force, but the Court stated, “but it does not contemplate such force as would be denominated violence.”

In the recent case of Powell v. State, 538 S.W .2d 617 (Tex.Cr.App.1976), we held, in interpreting § 46.05, that “whether a felony offense is within the scope of this statute must depend on the facts and circumstances of each case.

In the instant case the State alleged as an element of the offense that the prior conviction was “an act of violence.” It was incumbent upon the State to prove up the elements of the offense alleged in the indictment. See Cathy v. State, 402 S.W.2d 743 (Tex.Cr.App.1966).

The appellant urges that evidence shows that the prior conviction was burglary by breaking but leaves a fact issue as to whether it involved an act of violence for the jury to decide and the court erred in instructing the jury that burglary was an act of violence per se.

Article 36.13, Vernon’s Ann.C.C.P., provides that the jury is the exclusive judge of the facts where impanelled unless otherwise provided.

In Marlow v. State, 537 S.W.2d 8 (Tex.Cr.App.1976), it was pointed out that it has been uniformly held it is improper for a judge, in charging the jury in a criminal case, to assume that any fact has been proved against the defendant, however strong the evidence may be. See also Kellogg v. State, 58 Tex.Cr.R. 84, 124 S.W. 958 (1910); Richardson v. State, 390 S.W.2d 773 (Tex.Cr.App.1965); Supina v. State, 115 Tex.Cr.R. 56, 27 S.W.2d 198 (1930); Jones v. State, 22 Tex.App. 680, 3 S.W. 478 (1887); Jernigan v. State, 10 Tex.App. 546 (1881); Webb v. State, 8 Tex.App. 115 (1880); Baker v. State, 6 Tex.App. 344 (1879); Hawley v. State, 158 Tex.Cr.R. 61, 252 S.W.2d 933 (1952); Stanley v. State, 142 Tex.Cr.R. 495, 154 S.W.2d 856 (1941); Hughes v. State, 99 Tex.Cr.R. 244, 268 S.W. 960 (1925); Cannon v. State, 84 Tex.Cr.R. 504, 208 S.W. 339 (1919); Young v. State, 68 Tex.Cr.R. 580, 151 S.W. 1046 (1912). Cf. Lights v. State, 21 Tex.App. 308,17 S.W. 428 (1886); Zeff v. State, 100 Tex.Cr.R. 448, 273 S.W. 563 (1925); Rhyne v. State, 142 Tex.Cr.R. 104, 151 S.W .2d 599 (1941).

The inherent danger is clear where the trial court assumes in its charge facts damaging to a defendant merely because the same were not “controverted,” not “placed in issue” or not “contested.” It is the right of all defendants to put the State to its proof. The burden of proof rests with the State, and the failure of an accused to present evidence in his own behalf cannot alone authorize the trial court to charge the jury in such a manner that every fact upon which proof was all one way is assumed to be true. Such a result comes perilously close to authorizing a directed verdict of guilty for the State. See Marlow v. State, supra.

The trial court should never assume as true a fact based wholly upon the State’s testimonial evidence. The jury is always entitled to doubt the credibility of any witness, and there are both statutory and constitutional inhibitions against any instruction of the trial court that tends to invade that province of the jury. See Marlow v. State, supra.

We conclude that the trial court erred in instructing the jury that burglary involves an act of violence or threatened violence as a matter of law. Burglary does not per se involve violence, and whether a felony offense does involve violence must depend on the facts and circumstances of each case. Powell v. State, supra. The court’s instruction, which assumed the prior conviction involved violence, was improper. We mention this so the same reversible error will not be repeated in another trial.

For the reasons stated earlier, the judgment is reversed and the prosecution under this indictment is dismissed.

DOUGLAS, Judge,

dissenting.

The majority reverses and dismisses the prosecution “in the interest of justice” because the indictment did not allege that appellant intentionally, knowingly, recklessly or negligently possessed a firearm. The indictment, in part, alleges that appellant

“did possess a firearm, namely a pistol, away from the premises where he lived, and that the said Harold B. Tew had been previously and finally convicted of Burglary, an act of violence against property, in Cause No. 18,909 in the 169th District Court of Bell County, Texas, on December 3, 1971.”

It is difficult how someone could possess a pistol away from his premises where he lived without knowingly doing so. The definition of possession in V.T.C.A., Penal Code, Section 1.07(28), “means actual care, custody, control or management.” Taking this definition, it is hard to conceive any case where one can have the actual care, custody, control or management of property without knowing it. It is not suggested how there could be a reckless or negligent possession under the definition passed by the Legislature.

Appellant knew from the indictment what he was charged with. He did not complain and has not complained as of this date. But, “in the interest of justice”, the majority finds that he could have care, custody, control and management of a firearm without knowing it.

The judgment should not be reversed.


author: DALLY, Commissioner.

text:
    Perry JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 53086.
    Court of Criminal Appeals of Texas.
    May 18, 1977.
    Rehearing Denied June 14, 1977.
    Robert T. Baskett, Court appointed, Dallas, for appellant.

      Henry Wade, Dist. Atty., Maridell J. Templeton, John D. Ovard and Robert E. Whaley, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder under the former Penal Code. The punishment is imprisonment for life.

At the time of the offense appellant was over fifteen years of age, but under seventeen years of age. The offense occurred on March 25, 1972; appellant was born on March 18, 1957. Appellant contends the juvenile court did not have jurisdiction over him; therefore, its order waiving its jurisdiction and certifying him for criminal prosecution was void. We agree and reverse the conviction.

We are initially confronted with the question of whether the records of the juvenile court were properly included in the record on appeal. Without further discussion of this point we observe that the record was supplemented by the State in the manner approved by this Court in Ellis v. State, 543 S.W.2d 135 (Tex.Cr.App.1976).

Appellant contends the record shows on its face that the juvenile court did not have jurisdiction over him; therefore, its order waiving jurisdiction and certifying him for criminal prosecution was void. Appellant argues that he was never served with process in the juvenile court, thus the court never acquired jurisdiction over him.

The record reflects that a petition was filed in the juvenile court on March 28, 1972, alleging that appellant was a delinquent child. This petition was amended the same day. On March 29, 1972, the State filed a petition for certification asking the juvenile court to waive jurisdiction and certify the appellant for criminal proceedings as an adult. See Article 2338-1, Section 6, V.A.C.S. The record does not show that a summons was ever issued on any petition filed by the State. The only indication that there was ever any service of process is a notation on a separate piece of paper found in the record following the State’s original petition which alleged that appellant was a delinquent child. There are two notations on this paper; the first reads, “Came to hand this Date 3/_, 1972 — By Placing in the _uvenile home.” The second notation reads, “Executed this date, March 28, 1972 — By placing in the Juvenile Home.” Both notations are signed by a deputy sheriff. The record does not reflect that appellant’s mother, his only living parent and guardian, was ever served with a summons or even a copy of any of the State’s petitions.

The appellant was represented by an attorney ad litem in the juvenile court. The appellant, his mother, and his attorney were all present at the hearing in the juvenile court. Although notice of appeal was given, the appellant did not appeal the order of the juvenile court to the Court of Civil Appeals. The appellant was indigent at the time of the certification proceedings. Both appellant and his mother testified that they did not waive the right to appeal the certification order. In any event, the failure to appeal to the Court of Civil Appeals would not waive a jurisdictional defect.

The certification proceedings in this case were governed by Article 2338-1, V.A.C.S. Section 8 of Article 2338-1 provided in part:

“After a petition shall have been filed, and after such further investigation as the Judge may direct, unless the parties hereinafter named shall voluntarily appear, the court shall issue a summons reciting briefly the substance of the petition, and requiring the person or persons who have the custody or control of the child to appear personally and bring the child before the court at a time and place stated. If the person so summoned shall be other than the parent or guardian of the child, then the parent or guardian, or both, shall be notified of the pendency of the case and of the time and place appointed, by personal service before the hearing, if they reside within the jurisdiction of the court, except as hereinafter provided. Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the Judge, is necessary.”

Casanova v. State, 489 S.W.2d 727 (Tex.Civ.App. — San Antonio 1972), held that in a juvenile delinquency proceeding under Article 2338-1, V.A.C.S., the juvenile must be personally served with process. In Casanova the juvenile’s mother was personally served with a summons directing her to appear and bring her son to court. The Court of Civil Appeals noted that Article 2338-1, Section 8, V.A.C.S., was silent as to personal notice to the juvenile; thus, the proceedings were governed by the Rules of Civil Procedure. Rule 124 of the Texas Rules of Civil Procedure prohibits the rendition of any judgment against any defendant “unless upon service or acceptance or waiver of process, or upon an appearance by the defendant . . . ” Although the juvenile appeared in court, the Court of Civil Appeals said, “The rule is well established in this jurisdiction that a minor, even in a civil proceedings, lacks the capacity to waive service, and that no one may waive it for him. Wright v. Jones, 52 S.W.2d 247 (Tex.Com.App.1932); 2 McDonald, Texas Civil Practice, Citation, Section 9.02, p. 364 (1970 rev.).” See also Franks v. State, 498 S.W.2d 516 (Tex.Civ.App. — Texarkana 1973, no writ).

As in the case at bar, the State in Casanova relied upon In re Gonzalez, 328 S.W.2d 475 (Tex.Civ.App. — El Paso 1959, writ ref’d n. r. e.). Gonzalez held that notice was not required where a parent and child were present at trial. The Court of Civil Appeals in Casanova distinguished Gonzalez by saying that the Court in Gonzalez focused its attention on the lack of service on the parent. In addition, the Court said:

“To hold, as, perhaps, the El Paso Court arguably held in Gonzalez, that Section 8 disposes with the requirement of personal notice to the child, serious constitutional questions arise. The Supreme Court of the United States has held that due process requires ‘that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing,’ and that due process requires ‘notice which would be deemed constitutionally adequate in a civil or criminal proceeding.’ In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967).”

The Supreme Court granted a writ of error in Casanova v. State, supra. State v. Casanova, 494 S.W.2d 812 (Tex.Sup.1973). The Supreme Court of Texas expressly agreed with the holding of the Court of Civil Appeals in regard to the necessity for service of process.

The record in the instant case shows that the appellant was never properly served with any process in the juvenile court. The sheriff’s notation does not show what instrument he allegedly served. If we assume he served a copy of the original delinquency petition that immediately preceded the sheriff’s notation in the record, this would not constitute a summons because it does not state the time and place the appellant was to appear in court. See Article 2338-1, Section 8, supra. Moreover, the sheriff’s notation does not affirmatively show that he delivered any papers to the appellant personally. In any event, the sheriff’s notation could not be construed as service of the petition for certification because it was not even filed until March 29, 1972.

When the civil courts of this State have first construed a statute, this Court follows the policy of adopting such construction. Jernigan v. State, 166 Tex.Cr.R. 302, 313 S.W.2d 309 (1958). Likewise, our Supreme Court follows the same policy and accepts the construction this Court places upon criminal statutes. Shrader v. Ritchey, 309 S.W.2d 812 (Tex.Sup.1958). Since the jurisdiction of the juvenile court in this case is controlled by the Rules of Civil Procedure, the interpretation of the rules given in Casanova v. State, supra, controls.

The record in the instant case shows on its face that the juvenile court did not have jurisdiction over the appellant. Since it did not have jurisdiction its order waiving its jurisdiction and certifying the appellant for criminal proceedings was a nullity. The appellant was under seventeen years of age at the time of trial on February 20, 1973. We hold that the district court did not have jurisdiction to try the appellant for a criminal offense in the absence of a valid waiver of jurisdiction by the juvenile court. Article 30, Section 2, V.A.P.C. (1925).

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . The deputy district cierk who identified the records from the juvenile court testified that they were a full and complete record of the juvenile proceedings.

      . Certification proceedings by the juvenile courts are now governed by V.T.C.A. Family Code, Section 54.02, which became effective on September 1, 1973.

      . V.T.C.A. Family Code, Section 53.06, now provides that the juvenile court shall direct the issuance of a summons to the child. Subsection (e) of Section 53.06 provides:
      “A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.” (Emphasis added.)
      The juvenile court can not require jurisdiction over the juvenile in the absence of personal service of the summons on the child. In re T. T. W„ 532 S.W.2d 418 (Tex.Civ.App. — Texar-kana 1976, no writ); In re M. W., 523 S.W.2d 513 (Tex.Civ.App. — El Paso 1975, no writ). Moreover, the juvenile court cannot waive its jurisdiction and transfer the child to the district court for criminal proceedings, unless the summons specifically states that the hearing is for the purpose of considering discretionary transfer to criminal court. V.T.C.A. Family Code, Section 54.02(b); In re K. W. S„ 521 S.W.2d 890 (Tex.Civ.App. — Beaumont 1975, no writ); R. K. M. v. State, 520 S.W.2d 878 (Tex.Civ.App. —San Antonio 1975, no writ); In re I. Y., 535 S.W.2d 729 (Tex.Civ.App — Eastland 1976, no writ).

      . However, the judgment of the Court of Civil Appeals was reversed and vacated, and the case was dismissed because the appellant had become seventeen years of age.


author: BROWN, Commissioner. DOUGLAS, Judge,

text:
    Larry Donnell DUNBAR, Appellant, v. The STATE of Texas, Appellee.
    No. 53253.
    Court of Criminal Appeals of Texas.
    May 18, 1977.
    Rehearing Denied June 14, 1977.

      Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Clifford, Wayne Huff and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for voluntary manslaughter. Appellant was tried before a jury which assessed punishment at ten (10) years in the Texas Department of Corrections.

In his first ground of error appellant contends that the prosecutor made an improper comment during closing argument to the jury at the guilt or innocence stage of the trial. The remark was made during the following exchange:

“Now let me talk to you about some of the things the Court charged you on. Now, understand that I know that Mr. Macaluso explained to you in Voir Dire the fact that you have things in here on self-defense and voluntary manslaughter, doesn’t mean that the Court believes that is what happened.
“MR. MITCHELL (Defense Attorney): Your Honor, I would object to any reference as to what the Court believes or does not believe. The Court does not comment on the evidence.
“THE COURT: I’ll overrule the objection.
“MR. MITCHELL: Note our exception. “MR. HUFF (Prosecutor): Now, folks, that means that you can consider what I am about to say. That doesn’t mean that the Court believes that self-defense is really what happened or that voluntary manslaughter is really what happened. “MR. MITCHELL: Your Honor, could I have a continuing objection to this argument?
“THE COURT: Yes you can have a running objection.”

Relying on Article 38.05, Vernon’s Ann.C. C.P. and McClory v. State, 510 S.W.2d 932 (Tex.Cr.App.1974), appellant contends that the prosecutor’s argument prejudiced the jury by indicating that the trial court did not believe appellant’s defense of self-defense.

Article 38.05, supra, provides as follows: “In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible, nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.”

In McClory v. State, supra, the prosecutor’s remarks occurred during the following exchange:

“MR. ETHINGTON: . . . Also in the charge, there’s some talk about self-defense. Simply because this is the charge that doesn’t mean the judge believes it; it’s in there because the defendant raised that issue—
“MR. MARTIN (Defense Counsel): Objection, Your Honor; I object to his saying what the Judge believes about anything.
“THE COURT: He didn’t say I did; he said I didn’t. Overruled.”

We reversed the conviction, stating,

“The court, instead of merely ruling upon the objection as he should have done, made a comment upon the complained of argument . . . from which the jury could logically surmise that the court did not believe appellant’s defensive issue of self-defense . . . ”

The improper comment of the trial court concerning the State’s argument, when considered along with the remarks of the prosecuting attorney made before and after the court’s ruling, constituted reversible error.

In the instant case the trial court did not, as in McClory v. State, supra, make any comment about the prosecutor’s remark; but merely overruled appellant’s objection to “any reference as to what the Court believes or does not believe.” The McClory case is instructive on the issue of whether the prosecutor’s comment alone is so prejudicial as to require reversal. Our opinion in McClory recites the rule that to be within the stamp of approval jury arguments need to be within the area of (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, or (4) a plea for law enforcement.

“A prosecutor may without referring to any belief of the trial court properly advise the jury that any relevant testimony which raises a material fact issue will cause the court to submit a charge explaining the law on that issue.” McClory v. State, supra, at p. 934. Such advice, as well as any “reasonable and proper explanation of the law of the case as contained in the court’s charge” would fall within the enumerated rules of jury argument.

The prosecutor’s remarks in the instant case go beyond the standards set out above. The statements both before and after the court’s ruling were direct references to the trial court’s beliefs about the case. Under the rules set out above, such remarks constitute reversible error.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The majority holds that the prosecutor’s comment concerning the court’s charge was improper and reverses the conviction. The prosecutor merely commented in effect that, if the evidence raises the issue of self-defense, then the court must submit an instruction on that defense. Nothing stated in McClory v. State, 510 S.W.2d 932 (Tex.Cr.App.1974), warrants this reversal.

During final argument at the guilt-innocence phase of the trial, the following occurred:

“Now, let me talk to you about some of the things the Court charged you on. Now, understand that I know that Mr. Macaluso explained to you in Voir Dire the fact that you have things in here on self defense and voluntary manslaughter, doesn’t mean that the Court believes that is what happened.
“MR. MITCHELL: Your Honor, I would object to any reference as to what the Court believes or does not believe. The Court does not comment on the evidence.
“THE COURT: I’ll overrule the objection.
“MR. MITCHELL: Note our exception. “MR. HUFF: Now, folks, that means that you can consider what I an about to say. That doesn’t mean that the Court believes that self defense is really what happened or that voluntary manslaughter is really what happened. “MR. MITCHELL: Your Honor, could I have a continuing objection to this argument?
“THE COURT: Yes, you can have a running objection.
“MR. MITCHELL: Thank you.
“MR. HUFF: Now, that means the issue was raised by someone, in this case the Defendant, and it has to go in this charge. . . .” (Emphasis added).

The majority correctly recognizes that McClory v. State, supra, is distinguishable on its facts from the instant case but concludes that the principles set forth therein are controlling. This Court in that case stated:

“We do not wish to be understood as holding that the State cannot, in plain language, explain how the jury instructions are developed. A prosecutor may without referring to any belief of the trial court properly advise the jury that any relevant testimony which raises a material fact issue will cause the court to submit a charge explaining the law on that issue. . . . ”

The Court then elaborated on this statement:

“In Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230, we held that to be within the stamp of approval jury arguments need to be within the area of (1) summation of the evidence; (2) reasonable deduction of the evidence; (3) answer to argument of opposing counsel; or (4) a plea for law enforcement. * * * However, the prosecuting attorney must be very cautious not to bring before the jury any reference to any presumed opinion of the trial judge on any fact issue covered by the court’s charge.” (Emphasis added). 510 S.W.2d at 934.

In the instant case, the prosecutor did not refer to any presumed opinion of the trial judge on either the self-defense issue or the involuntary manslaughter issue. Nor did he ask the jury to convict upon evidence outside the record. Nor did he make a misstatement of law. Nor did he tell the jury what the judge did or did not believe. He did no more than tell the jury that the judge should charge upon an issue when the evidence raises it and that the judge was not required to believe those issues so raised —here, self-defense and involuntary manslaughter.

In Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975), and numerous other cases, this Court has held that jury argument must either be extreme or manifestly improper or inject new and harmful facts to be prejudicial. The argument in the present case meets none of these criteria.

The judgment should be affirmed.


author: ROBERTS, Judge.

text:
    Aurora G. AMAYA, Appellant, v. The STATE of Texas, Appellee.
    No. 52221.
    Court of Criminal Appeals of Texas.
    May 25, 1977.

      Owen & Cooper, El Paso, for appellant. George N. Rodriquez Jr., County Atty., and James H. Luckett, Asst. County Atty., El Paso, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for welfare fraud. Art. 695c, Sec. 34, Vernon’s Ann.Civ.St. The court found appellant guilty and assessed punishment at a fine of fifty dollars and two years in jail, probated.

Appellant contends that the trial court erred in overruling her exception to the information. We sustain this contention and reverse.

Article 695c, Section 34, V.A.C.S., provides:

“Fraudulent assistance; penalty
“Sec. 34. Whoever obtains, or attempts to obtain, or aids or abets any person to obtain, by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:
“(1) Assistance, services, or treatment to which he is not entitled;
“(2) Assistance, services, or treatment greater than that to which he is justly entitled;
“(3) Or, with intent to defraud, aids or abets in buying, or in any way disposing of the property of a recipient of assistance without the consent of the State Department, or whoever violates Section 32 or Section 33 of this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined any sum not more than One Hundred Dollars ($100) or be imprisoned for not less than six (6) months, nor more than (2) years, or be both so fined and imprisoned.”

Omitting the formal parts, the information alleges that:

“on or about the 1 day of May A. D. 1974, and before the filing of this information, in said County of El Paso, State of Texas, AURORA G. AMAYA did then and there intentionally and knowingly obtain by means of a willfully false statement assistance from the State of Texas Department of Public Welfare such assistance to which she was not entitled.”

The information tracks the pertinent portion of the statute and also alleges the required culpability.

However, the information makes no attempt to set out the specific “willfully false statement” the appellant is alleged to have made. The appellant called this precise omission to the attention of the trial court prior to trial by filing a written exception to the information.

Appellant labelled this exception an exception to the substance of the information. See Art. 27.08, Vernon’s Ann.C.C.P. However, appellant’s complaint in the exception was that because of the omission of the particular false statement, the information did not allege the offense “with such particularity and certainty that the Defendant, who is presumed innocent, may ascertain fully the matters charged against her and to know the charges which she must meet.”

Thus, appellant’s complaint was that she did not have sufficient notice of the precise charge against her. In American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), we held that such a complaint constitutes a challenge to the form, rather than the substance, of an indictment or information. Art. 27.09, V.A.C.C.P.

Of course, we are not bound by the label a defendant gives to a defect in an indictment or information. See American Plant Food Corp. v. State, supra. However, we conclude that the specified omission in this information is not a defect of substance which renders the information fundamentally defective. The information as drafted alleges an offense in the language of the statute and also alleges the required culpable mental states. We think this is sufficient to charge an offense. Art. 27.08(1), V.A.C.C.P. American Plant Food Corp. v. State, supra.

Nonetheless, Art. 27.09, V.A.C.C.P., provides in part that:

“Exceptions to the form of an indictment or information may be taken for the following causes only:
******
“2. The want of any requisite prescribed by Articles 21.02 and 21.21.

Art. 21.21(7) requires that an information set forth the offense in plain and intelligible words. In American Plant Food, we held:

“If the charge is sufficient in substance under Article 27.08(1), supra, it may still be subject to an exception under Article 27.09(2), supra, for some deficiency under Article 21.21(7), as that provision is further clarified by Articles 21.03, 21.04, 21.-11 and 21.17, V.A.C.C.P. and prior decisions of this Court.” American Plant Food Corp. v. State, supra, at 603.

One of the “deficiencies” under Article 21.21(7), supra, is the failure of an indictment or information to give the defendant notice of precisely what he is charged with. American Plant Food, supra, at 603. What this means is that if a proper exception or motion to quash is filed and brought to the attention of the court before trial, the State must then respond by amending the indictment or information to include a specific allegation of what the State will rely upon to convict. American Plant Food, supra. See Arts. 28.09-28.11, V.A.C.C.P.

We believe that the deficiency complained of in the information before us was subject to the exception filed by the appellant. As appellant contends, and as the record reflects, the appellant was required to make many statements to the Department of Public Welfare; she was entitled, upon proper exception, to know which false statement or statements the State would rely upon for conviction. See Garnett v. State, 125 Tex.Cr.R. 351, 68 S.W.2d 507 (1934), relied upon by appellant, where this Court held that the State was required to allege the specific false representation relied upon for a conviction under former Art. 1551, V.A.P.C. (1925). And see Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971), cited with approval in American Plant Food Corp. v. State, supra. Cf. Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976).

Because of the trial court’s failure to sustain the appellant’s exception to the information, the judgment is reversed and the prosecution under this information is ordered dismissed.

      . The trial judge overruled this exception, also prior to trial.


author: GREEN, Commissioner. ODOM, Judge, DOUGLAS, Judge,

text:
    Ex parte Rene Zuniga GUZMAN
    No. 54253.
    Court of Criminal Appeals of Texas.
    May 25, 1977.

      Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted of the offense of assault to rob in Cause No. 8468, on his plea of guilty to the court, on June 11, 1959, at which time the court assessed a four (4) year sentence, probated. Subsequently, on June 15, 1961, petitioner's probation was revoked, and no appeal of this revocation order was perfected.

Petitioner filed an application for writ of habeas corpus with the trial court, alleging that at the time of his probation revocation hearing in 1961 he was not represented by counsel and was not advised of his right to counsel at that proceeding, therefore contending that he did not voluntarily and knowingly waive his right to counsel. The trial court originally denied the application for writ of habeas corpus, finding that the application for writ of habeas corpus was moot, since petitioner was no longer held in custody of that conviction, said conviction long since being discharged.

This Court remanded the case back to the trial court for further proceedings to determine the merits of petitioner’s contentions, noting that prior convictions that had been discharged may have serious collateral consequences to a criminal defendant, thus the mootness doctrine cannot prohibit a collateral attack. See Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973); Ex parte Jentsch, 510 S.W.2d 320 (Tex.Cr.App.1974); Ex parte Langston, 510 S.W.2d 603 (Tex.Cr.App.1974).

On remand, the trial court found that petitioner was not represented by counsel at the time of this probation revocation proceeding, was indigent, and did not waive counsel. The records before this Court corroborate the petitioner’s pleadings and the trial court’s findings. See Ex parte Stauts, 482 S.W.2d 638 (Tex.Cr.App.1972); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972). Therefore, we hold that the or der of revocation has been rendered void by petitioner’s showing that he was denied his right to counsel at that proceeding. See Ex parte Herrera, 493 S.W.2d 809 (Tex.Cr.App.1973); Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973); Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970); Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976).

Accordingly, the application for writ of habeas corpus is granted, and the order of revocation in Cause No. 8468 is hereby set aside.

Opinion approved by the Court.

ODOM, Judge,

concurring.

The dissent concedes that petitioner’s ha-beas corpus application is not moot and that “[Sufficient collateral consequences flow from the discharged conviction” to defeat the State’s claim of mootness. Yet the dissent would deny petitioner a forum to raise his viable claim by finding those very collateral consequences that defeat mootness are insufficient to support jurisdiction. This is a distinction without a difference. If the restraints of collateral consequences are sufficient to defeat mootness, they are sufficient to support the exercise of habeas corpus jurisdiction. The Code provides as much and justice and reason permit no less.

Chapter 11 of the Code of Criminal Procedure states the rules governing habeas corpus. Article 11.64 therein addresses the application of the chapter:

“This Chapter applies to all cases of habeas corpus for the enlargement of persons illegally held in custody or in any manner restrained in their personal liberty, for the admission of prisoners to bail, and for the discharge of prisoners before indictment upon a hearing of the testimony. . . .” (Emphasis added.)

Article 11.23, V.A.C.C.P., states the scope of the writ:

“The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” (Emphasis added.)

Restraint is defined in Article 11.22, V.A.C. C.P.:

“By ‘restraint’ is meant the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.’’ (Emphasis added.)

Article 11.04, V.A.C.C.P., tells us how these provisions are to be construed: remedy, and protect the rights of the person seeking relief under it.”

“Every provision relating to the writ of habeas corpus shall be most favorably construed in order to give effect to the

The dissent would restrict the remedy in violation of the mandate of Art. 11.04, supra. In disregard of the broad definition of “restraint” in Art. 11.22, supra, the dissent would hold the collateral consequences of the prior conviction, imposed under the general authority and power of the State of Texas as a direct and enduring restraint on petitioner’s liberty, may not be tested in the courts of this State. The availability of the writ of habeas corpus to challenge any manner of restraint on personal liberty, as confirmed by the terms of Arts. 11.64 and 11.23, supra, would be abolished by the restrictive innovations urged by the dissent.

In Ex parte Snodgrass, 43 Tex.Cr.R. 359, 65 S.W. 1061, the Court considered the last above-quoted provisions of the Code of Criminal Procedure and declared:

“We deem it unnecessary to enter into a long discussion of these articles, but suffice it to say that any character or kind of restraint that precludes an absolute and perfect freedom of action on the part of relator authorizes such relator to make application to this court for release from said restraint.” (Emphasis added.)

The dissent, apparently, also finds it “unnecessary to enter into a long discussion of these articles” before restricting the scope of the writ to “a remedy for severe restraints on individual liberty.” Since enactment of these statutes in 1856, the writ has never been limited to cases of “severe restraints on individual liberty,” but has been available to those who are “in any manner restrained in their personal liberty”. Art. 11.64, supra. The dissent would strike these words from the statute as though they were never written, erroneously asserting that the exercise of our jurisdiction in this case “would be an exercise in futility amounting to absolutely nothing.” The dissent urges an unauthorized restriction of habeas corpus jurisdiction that not only would abolish protections of longstanding legislative mandate, but would also erode the constitutional mandate of Section 12 of the Texas Bill of Rights (Art. 1, Sec. 12, Texas Constitution), which declares, “The writ of'habeas corpus is a writ of right, and shall never be suspended.”

I concur in the majority’s rejection of the dissent’s unwarranted and insupportable assault on the Great Writ’s protection, today and for the future, of the liberties of all Texans.

PHILLIPS, J., joins in this opinion.

DOUGLAS, Judge,

dissenting.

This case concerns the scope of the habe-as corpus statutes.

Article 11.01, V.A.C.C.P., provides:
“The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.”
Article 11.23, V.A.C.C.P., provides:
“The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.”

And Article 11.64, V.A.C.C.P., provides in pertinent part:

“This Chapter applies to all cases of habeas corpus for the enlargement of persons illegally held in custody or in any manner restrained in their personal liberty, for the admission of prisoners to bail, and for the discharge of prisoners before indictment upon a hearing of the testimony. .. . ”

Applicant contends that the statute authorizes an attack upon a probation revocation order even though applicant Guzman was unconditionally released from custody before the petition for writ of habeas corpus was filed. This contention is compelled neither by history nor statute and, if accepted, would result in an unwarranted expansion of habeas corpus jurisdiction of Texas courts.

Guzman’s release from custody was pursuant to the discharge of the conviction. His habeas claim is not moot because sufficient collateral consequences flow from the discharged conviction to foreclose that issue. See St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943); Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

However, mootness is not the real issue before us. The statute requires that the applicant must be “in custody or under restraint” when the petition for writ of habe-as corpus is filed. This is required not only by repeated references in the statute, but also by the history of the great writ. The writ’s province, “shaped to guarantee the most fundamental of all rights, is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person.” Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554, 559 (1968) (footnotes omitted). See also Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Therefore, the petition now before us, having been filed at a time when Guzman had been unconditionally released from custody, was without the jurisdiction of the trial court.

In the recent decision of Kravitz v. Pennsylvania, 546 F.2d 1100 (3rd Cir. 1977) the petitioner, after she had been released on parole, filed for habeas corpus relief in a federal court to rid herself of the collateral consequences of her 1959 conviction for murder. The court in dismissing the petition wrote:

“Federal habeas jurisdiction extends to a petitioner who claims that he is in custody in violation of the Constitution, treaties or laws of the United States; see 28 U.S.C. § 2254. The in-custody requirement has been given broad construction providing the federal writ with an expansive reach. The custody prerequisite has encompassed defendants on parole, on bail or on probation. In these instances, extension of the writ rested on the premise that inherent restraints exist in the usual conditional release on probation, parole and bail.
“However, the custody prerequisite has never been satisfied by a petitioner whose habeas claim followed his unconditional release from custody.
“The thought has been advanced that Mrs. Kravitz’ prior petition, dismissed in part on the merits and in part for lack of exhaustion of state remedies, relieves her of meeting the present custody requirement at the time of filing the petition under review. This is premised on the lack of mootness of her claim. * * * But our statutes conferring habeas jurisdiction do not confer power to entertain claims on the ground that they are not moot. They authorize jurisdiction only where the petitioner is ‘in custody.’ ” (Emphasis added).

Likewise, the Texas statute authorizes jurisdiction only where the applicant is “in custody” or “under restraint” or “is confined.”

Before today’s holding there was no authority to the contrary. Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973), and Ex parte Langston, 510 S.W.2d 603 (Tex.Cr.App.1974), appeal after remand Tex.Cr.App., 511 S.W.2d 936, held only that once habeas corpus jurisdiction has attached the applicant’s subsequent unconditional release from custody will not render the case moot if there are collateral consequences stemming from the conviction. Nothing stated in those cases alters the requirement that the applicant be in custody when the petition is filed. See Carafas v. LaVallee, supra, and the discussion contained therein. Ex parte Jentsch, 510 S.W.2d 320 (Tex.Cr.App.1974), is inapposite. The applicant in that case was confined throughout the habeas corpus proceedings.

The great writ has played a crucial role in the protection of human freedom and has been utilized by the judiciary as its fundamental instrument for lifting undue restraints upon personal liberty. As a result the “in custody” requirement of the statute is designed to preserve the writ as a remedy for severe restraints on individual liberty. See Hensley v. Municipal Court, San Jose Milpitas J.D., Cal., 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).

Constitutional revisions have been proposed and bills have been introduced in the Legislature to ease the work load of this Court. The majority in considering cases such as this is making the situation worse.

Applicant alleges that he had a burglary conviction in 1961. He does not attack that conviction. The granting of relief or setting aside the conviction complained of would be an exercise in futility amounting to absolutely nothing. Since he has another conviction, no civil or any other right would be impaired by denying the relief sought. If there is an attempt to use the 1959 conviction against him in the future, he can challenge it then. We should not assume that he will commit another offense, and further assume that it will be wrongfully used against him.

We have more to do than to take jurisdiction, especially without authority, to clear someone’s name when there is no pending threat of confinement in the case attacked.

Quite a few people think that 0. Henry (William Sydney Porter) was unlawfully convicted for embezzlement. Even though he is dead and even though he was tried in a federal court and his case was affirmed on appeal, Porter v. United States, 91 P. 494 (5th Cir. 1898), the majority after the decision today should probably review his case in an effort to see if his name might be cleared. It would do about as much good as the granting of the relief in the present case.

The relief sought should be denied.

      . Although petitioner has discharged the term assessed against him in the conviction under attack, it appears from the record before us that he is nevertheless confined in the Department of Corrections under another conviction. The dissent has not distinguished Ex parte Langston, Tex.Cr.App., 510 S.W.2d 603, and Tex.Cr.App., 511 S.W.2d 936.

      . See Articles 11.01, 11.02, 11.07, 11.08, 11.09, 11.14, 11.16, 11.17, 11.18, 11.19, 11.21, 11.22, 11.23, 11.27, 11.30, 11.31, 11.32, 11.33, 11.34, 11.35, 11.37, 11.38, 11.40, 11.42, 11.44, 11.45, 11.46, 11.56, 11.57, 11.61, 11.62, and 11.64, V.A. C.C.P.

      . See 9 W. Holdsworth, History of English Law 108-125 (1926); 4 W. Blackstone, Commentaries 131-134.

      . See Article 11.21, V.A.C.C.P.