author: DAVIS, Commissioner.

text:
    Carla McKinney OCHS, Appellant, v. The STATE of Texas, Appellee. James Connor OCHS, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 52491 and 52492.
    Court of Criminal Appeals of Texas.
    Sept. 20, 1976.
    Certiorari Denied Jan. 17,1977.
    See 97 S.Ct. 786.

      Frank S. Wright, Ronald L. Goranson (on appeal only), Dallas, for appellant.
    Gene Knize, County Atty., Waxahachie, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for possession of more than four ounces of marihuana. Appellants were tried jointly before the court upon pleas of not guilty. Punishment was assessed at three years in each case.

Appellants contend that the court erred “in admitting into evidence State’s Exhibits 1A, IB, 1C, 2, 3 and 12 (the marijuana), all of which had been seized as the result of an unlawful search.”

Narcotics officer Green of the Department of Public Safety received a call in Dallas about 10:45 a. m. on October 17, 1974, from a confidential informant who had “three or four times” previously given him information “concerning narcotics investigations and information involving people in narcotic traffic" that “turned out to be correct.” The informant advised Green that a white male named Michael was fixing to pick up a large amount of marihuana in a green Ford pickup from a yellow house near Bristol in Ellis County. Green and officer Demick drove to Bristol, where Green again met with the informant, and “he [informant] ran this story down to me again.” As a result of the conversation, Green and Demick began surveillance of a yellow frame house on “rural or farm land” near Bristol. Shortly after the officers arrived, Green observed Carla Ochs [appellant] “leave the residence holding a large amount of marihuana stalks which appeared to me to be marihuana stalks.” Green stated that he was able to form an opinion that the stalks were marihuana from three years of experience in observing same. A white male was next observed leaving the residence with three brown paper sacks which were placed in the cab of a green and white Ford pickup. The officers approached the pickup, where “we could clearly see that it was a green plant substance in the brown paper sacks which appeared to us to be marihuana . . . The man, later identified as one Michael Hanson, entered the house and, before the officers could knock on the door of the house, Hanson opened the door and the officers observed “another shopping bag in the living room of the residence which contained what appeared to me to be marihuana.” The bag in the house, along with the bags in the pickup, were seized and the contents of same were determined to be marihuana. In addition, a small quantity of marihuana was found near the front steps of the house and a patch of marihuana plants was discovered in the yard.

While the search is warrantless, the standards applicable to determining whether the facts of a case support an officer’s probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied when receiving the decision of a magistrate. Whiteley v. Warden, Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Truitt v. State, Tex.Cr.App., 505 S.W.2d 594. Appellants concede that the second prong of the test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, that the reliability of the informer be shown by sufficient underlying circumstances, has been met.

Appellants urge that the requirement of Aguilar that there must be some underlying circumstances shown from which the informant concluded that the contraband was where he claimed it was has not been met.

The State responds by urging that the facts upon which the search and seizure are based are similar to those in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. As in Draper, sufficient details were furnished to enable the officers to verify much of the information related by the informer. The information supplied by the informer was ample in detail to allow adequate eorroboration of its trustworthiness and enable the officers to conclude that the informer spoke with personal knowledge or had gained his information in a reliable way. See Almendarez v. State, Tex.Cr.App., 460 S.W.2d 921; Buitron v. State, Tex.Cr.App., 519 S.W.2d 467.

Appellants urge that the Draper line of cases is not applicable in that the officers in the instant case obtained the informatior which corroborated the informer as the result of an intrusion upon appellants’ land. Appellants argue that appellants’ home was in a wooded area and that the action of the officers in coming upon their property was an invasion of the appellants’ reasonable expectation of privacy.

In United States v. Holmes, 521 F.2d 859 (5th Cir., 1975), cited by appellants, reversal resulted where a government agent entered upon defendant’s rural property and peered into a hole in a shed for the purpose of securing evidence which would support issuance of a search warrant. The agent’s action was not found to fall within the “open fields” exception. Appellants point to the following language in Holmes:

“Whatever precautions a homeowner in an urban area might have to take to protect his activity from the senses of a casual passerby, a dweller in a rural area whose property is surrounded by extremely dense growth need not anticipate that government agents will be crawling through the underbrush . . .

The “open fields” doctrine is discussed by the United States Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). In Hester, government agents concealed themselves “from fifty to one hundred yards” from defendant’s house, where they observed defendant take a jug out of a car. Upon discovery of the officers, the defendant dropped the jug and ran. Examination of the jug by the officers revealed that it contained “moonshine whiskey.” The Court held that even though the officers were on the defendant’s land when they made the observations which led to the seizure of evidence, the evidence was not obtained by an illegal search or seizure, the court stating:

“. . . the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226.”

Appellants reason that while the “open fields” doctrine may be applicable “if the search occurred in the West Texas plains,” but by virtue of the growth surrounding appellants’ home they had a reasonable expectation of privacy, an invasion of which is only warranted if based upon probable cause.

It is undisputed that the officers were on appellants’ property when they made the observations which led to the seizure and arrests, Green testifying, “we were approximately fifty yards from the house when we noticed her [appellant Carla Ochs] walking toward us with the pile of what appeared to me to be marihuana stalks.”

We need not decide whether the farmer whose home is on the plains of West Texas is subject to the “open fields” rule while his counterpart can remain in his house amidst the pine trees of East Texas immune from the surveillance of officers stationed in his fields.

Appellants’ Exhibit 2, identified as a photograph of the appellants’ property, in included in the record. Insofar as we are able to discern from viewing the exhibit, which appears to be an aerial photograph, there is a heavily wooded area on only one side of the house. Green testified in response to appellants’ questions that you have “trouble in some places seeing very far off.”

Even if the language in Holmes were binding on this Court and served to furnish the individual “surrounded by extremely dense growth” with a protective shield from the open fields doctrine, we cannot conclude that the evidence reflects that the home of appellants was situated in such an area.

In Atwell v. United States, 414 F.2d 136 (5th Cir., 1969), the defendant urged that evidence relative to a still found on his property 250 yards from the back of his house was not admissible as such evidence was obtained as the result of an unreasonable search and seizure. In rejecting such defense, the court stated:

“But inasmuch as the protection of the Fourth Amendment against unreasonable searches and seizures does not extend to ‘open fields,’ there was no unreasonable search. See, e. g., Hester v. United States, 1924, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Monnette v. United States, 5th Cir. 1962, 299 F.2d 847. Moreover, even if the officers were trespassing on private property, a trespass does not of itself constitute an illegal search. Monnette v. United States, supra; United States v. Young, 4th Cir. 1963, 322 F.2d 443.”

The facts surrounding the observations made approximately fifty yards from the appellants’ house are in sharp contrast to the peering into a shed on the defendant’s premises in Holmes and the intrusion by government agents by electronic devices in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. We reject appellants’ argument that the officers had made an intrusion in violation of appellants’ Fourth Amendment rights at, the point where they made the observations heretofore detailed. We conclude that the observations of the officers, coupled with the information from the reliable informer, furnished probable cause to conduct the search and seizure in question. Draper v. United States, supra; Almendarez v. State, supra; Buitron v. State, supra.

Appellants further urge, “Even if there was probable cause to search the property, the prosecution failed to show sufficient exigent circumstances to waive the requirement of a warrant.” The information furnished by the informer did not ripen into probable cause until such information was corroborated by the observations of the officers. At this point in .time, bags of what appeared to the officers to be marihuana were being placed in a pickup. It would have been impracticable to secure a search warrant since the pickup could be quickly moved out of the jurisdiction in which the warrant must be sought. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Coyne v. State, Tex.Cr.App., 485 S.W.2d 917.

Clearly, the officers had a right to enter the house and continue the search when they observed marihuana inside the house upon Hanson opening the door. Albro v. State, Tex.Cr.App., 502 S.W.2d 715.

See and cf. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Santana, _ U.S. _, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

We reject appellants’ contention that the court erred in admitting the contraband into evidence.

Appellant James Ochs contends the evidence is insufficient to support the conviction finding him guilty of possession of marihuana.

Hanson, an accomplice witness as a matter of law, was called as a witness by the State and testified that he had gone to Dallas to see James Ochs relative to obtaining a job working in his art and antique shop. On the night prior to the day in question, Hanson went with James and Carla Ochs to their farm in Ellis County. Prior to leaving Dallas, James and Carla Ochs told Hanson that he could have some marihuana to carry back to Austin with him. Hanson and both of the Ochses smoked marihuana after they arrived at the farm. Hanson stated that James Ochs told him that “. . . he had marihuana there and he was growing it.”

Appellant James Ochs points to the fact that Hanson was an accomplice witness and testimony showing that at the time when the officers entered the house on the day in question he [James Ochs] was in the bathtub and that there is no testimony from the officers relative to his handling or having any of the contraband in his possession. Appellant further calls our attention to testimony of Hanson that he was told that James and Carla Ochs were separated and that James was under a restraining order not to go on the property in question.

In Williams v. State, Tex.Cr.App., 524 S.W.2d 705, it was stated:

“Possession of narcotics need not be exclusive and evidence which shows that the accused jointly possessed the narcotic with another is sufficient. Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; Simpson v. State, Tex.Cr.App., 486 S.W.2d 807; Valdez v. State, Tex.Cr.App., 481 S.W.2d 904; Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713; Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763. Mere presence at a place where narcotics or dangerous drugs are possessed does not in itself justify a finding of joint possession. Curtis v. State, supra; Valdez v. State, supra. The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts. Curtis v. State, supra; Hineline v. State, Tex.Cr.App., 502 S.W.2d 703; Williams v. State, Tex.Cr.App., 498 S.W.2d 340.”

When we eliminate the testimony of the accomplice witness Hanson, we find the following evidence of an incriminating nature tending to connect James Ochs with the possession of the contraband. See Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Bentley v. State, Tex.Cr.App., 520 S.W.2d 390.

The testimony of officer Green reflects that a bag of marihuana was found in the Ochses’ house, marihuana was growing near the front steps of the house, and a “patch” containing marihuana plants was found in the yard. Carla Ochs was observed carrying marihuana stalks from the house and Hanson was observed carrying three bags of marihuana from the house and placing same into his pickup. The foregoing non-accomplice testimony clearly tends to connect appellant James Ochs with the offense and we conclude that such testimony, coupled with the testimony of the accomplice witness, was sufficient to sustain the conviction. See Williams v. State, supra.

The judgments are affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: ROBERTS, Judge. DOUGLAS, Judge

license: Public Domain

text:
    Jerry Alonzo GATES, Appellant, v. The STATE of Texas, Appellee.
    No. 52836.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    Dissenting Opinion on State’s Motion for Rehearing Dec. 1, 1976.
    Melvyn Carson Bruder, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum, Fred Davis, Brian Blessing, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. The jury assessed punishment at five years’ confinement in the Texas Department of Corrections.

Initially, we note that the record reveals a confusing set of circumstances. Appellant was tried jointly with two co-defendants. There is no written waiver of a jury trial pursuant to Article 1.15, V.A.C.C.P., in the record. The stipulation of evidence signed by the appellant states that he waived arraignment and the reading of the indictment. On March 27, 1975, a proceeding was had, absent a jury, during which the indictment was read to the appellant. The appellant entered a plea of guilty and was admonished of the consequences of his plea. The docket sheet entry for March 27, 1975 reflects, inter alia, “Defdt. arraigned— entered a plea of guilty.”

After this proceeding, a jury was brought in and sworn. The indictments charging appellant’s co-defendants were read to the co-defendants and they pleaded guilty. From the face of the record, it appears that the indictment charging the appellant was not read nor did he enter any plea in front of the jury, though he was once again admonished of the consequences of his plea in front of the jury.

In order to enter a plea of guilty before the judge, the right to a trial by jury should be waived under the procedure provided for in Article 1.13, V.A.C.C.P. Article 1.15, V.A.C.C.P.; Wilson v. State, 154 Tex.Cr.R. 39, 224 S.W.2d 234 (1949). Otherwise, the plea of guilty must be before a jury which is impaneled to assess the defendant’s punishment. Article 26.14, V.A.C.C.P.

In the instant case, appellant and his co-defendants were arraigned, had entered pleas of guilty and had been admonished of the consequences of their pleas. Since no waivers of a trial by jury had been filed, the jury was apparently impaneled under Article 26.14, V.A.C.C.P., to hear evidence to enable them to assess punishment. The record reflects that after they were impaneled, the indictment was read to co-defendant Leonard Davis, to which he persisted in entering his plea of guilty. The indictment charging co-defendant Harold Davis was read and he, in turn, persisted in pleading guilty. However, for some inexplicable reason, the record reflects that the indictment was once again read to Leonard Davis and once again he entered a plea of guilty. The indictment was never read to the appellant nor did he enter any plea in front of the jury. In light of the subsequent admonishments to all the defendants, with each defendant answering out in turn, we hypothesize that an error was made by the court reporter when the notes were transcribed. This is borne out by the following colloquy in front of the jury after the indictments were read:

“THE COURT: You still want to plead guilty?
“HAROLD EDWARD DAVIS: Yes, sir.
“LEONARD DAVIS: Yes, sir.
“JERRY ALONZO GATES: Yes, sir.”

We conclude that at this point appellant was proceeding under a valid plea of guilty.

By his first ground of error, the appellant contends that the evidence is insufficient to support a conviction for aggravated robbery. More specifically, he points to a complete absence of evidence that the complaining witness suffered bodily injury or was in fear of imminent bodily injury.

A plea of guilty before the jury admits all the elements of the offense. Ex Parte Taylor, 480 S.W.2d 692, 693 (Tex.Cr.App.1972); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942).

Appellant’s first ground of error is overruled.

By his second and third grounds of error, the appellant contends that his plea of guilty was not voluntary and that, in light of the evidentiary development, the trial court erred in not withdrawing his plea of guilty, sua sponte.

The record reflects that after the appellant had pleaded guilty to the indictment at the arraignment, his counsel qualified his plea by making a motion to quash the indictment because “. . .if these defendants are guilty, the facts will show that they are guilty of an attempted robbery . . ..” The court overruled this motion. It was reurged after the State rested because “. . .we haven’t all of the elements of aggravated robbery . and we have only — the evidence only deals with attempt . . ..” The court overruled this motion again.

The appellant then took the stand. During vigorous cross-examination by the State, the appellant made clear that he was not guilty of the offense charged and that he was admitting guilt only as to attempted robbery.

In Burks v. State, supra, this Court held:

“In the light of the adjudicated cases, the rule now appears to be that, where a plea of guilty is entered in a felony case, before a jury, and evidence is introduced which makes evident the innocence of the accused, or which reasonably and fairly raises an issue as to such fact, such evidence should be withdrawn or a plea of not guilty entered. At any and all events, the case should not proceed to final judgment under the plea of guilty.”

Accord, Cooper v. State, 537 S.W.2d 940, 943 (Tex.Cr.App.1976).

In Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153 (1954), the defendant pleaded guilty at arraignment but during the course of the trial took the stand and denied committing the offense charged. This Court held that the trial court properly changed the defendant’s plea to not guilty before the jury.

In Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956), this Court held that the defendant’s own testimony that he could not recall his actions made it the duty of the trial court to withdraw his plea of guilty.

From the totality of the circumstances surrounding the case at bar, we conclude that appellant was not voluntarily pleading guilty to the offense charged in the indictment. The trial court charged the jury that the appellant had pleaded guilty and instructed them to return a verdict of guilty. This was reversible error. The circumstances reasonably and fairly raised an issue as to the fact of appellant’s guilt of the offense charged. The case should not have proceeded to final judgment under the plea of guilty. Burks, supra.

In a final ground of error, the appellant complains of the trial court’s comment upon a question asked by appellant’s counsel. We feel that any error committed by the trial court with regards to this matter will not occur again upon retrial of the case.

The judgment of the trial court is reversed and remanded.

DOUGLAS, J., concurs in the results.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge

(dissenting).

The majority overrules the State’s motion for rehearing without written opinion. The motion should be granted. We should hold that appellant’s plea of guilty was voluntarily made and that the trial court did not err in failing to withdraw appellant’s plea of guilty on its own motion in light of eviden-tiary developments, as contended in appellant’s second and third grounds of error.

The following, prepared by Commissioner H. P. Green, is adopted as a part of this opinion:

“After the proceedings during arraignment and thereafter when admonishments of appellant and his co-defendants were before the jury, as stated in the opinion on original submission, the court accepted the pleas of guilty of each defendant, including appellant, and the State proceeded to offer its testimony. The written stipulation of evidence signed by appellant was admitted without objection. In this stipulation appellant waived the reading of the indictment and stated:

“ ‘Accordingly, having waived my Federal and State constitutional rights against self-incrimination and after having been sworn, upon oath, I judicially confess to the following facts and agree and stipulate that these facts are true and correct and constitute the evidence in this case.
“ ‘On November 1, 1974, in Dallas County, Texas, I did participate in the attempt to take the money of Agapito Hernandez at gunpoint as charged in the indictment.’

“In addition to the stipulation, the State’s evidence consisted of the testimony of two eyewitness members of a stake-out squad of police officers at the location of the offense. Their testimony of the events was sufficient to establish the guilt of each of the three defendants, including appellant, of the robbery.

“After the State rested, appellant again urged his motion to dismiss the indictment which he had made after arraignment, and as stated in our opinion on original submission, and the court again overruled it.

“Appellant then took the stand and on direct examination gave testimony addressed to his application for probation. On cross-examination, he admitted entering the 7-11 store in question with his companions and stated that at the time he had with him a loaded .22 caliber pistol. In answer to the question: ‘Whose idea was it to go rob the store?’ he answered, ‘Well, like I said, it’s something that sort of occurred, you know. We didn’t just sit down and plan and say we are going to do it like this right here (indicating).’ He also stated:

“ ‘Well, is it all right if I say that I am admitting I am guilty and I think it seems like that should be substantial, that should be enough. I admit that I attempted to rob a store, and I am asking for another chance for probation, but all the other questions, I don’t understand why it’s really necessary. I did attempt to rob the store.’
“In connection with what actually occurred, he testified:
“ ‘A. Well, anyway, it was kind of like, when I pulled the pistol out, I was pulling it out, and just as I brought it out, I immediately started hiding it, see, I didn’t say, “Well, I want your money”, because — Well, when I pulled it out, the police pulled up, so I just stuck it up under something, you see, I never did get a chance to say, “Here, I’m asking for your money”, when the police pulled up I took the gun out, in the process of hiding it.
“ ‘Q. If the police hadn’t pulled up, what would you have done?
“ ‘A. If the police wouldn’t have pulled up?
“‘Q. Right.
“ ‘A. Well, I mean, it was sort of like this — okay—if this is what you want to hear, I would have robbed him.’
“ ‘Q. Well, you were going to speak to him had the police not pulled up, correct?
“ ‘A. The police pulled up and stopped me from robbing him.’

He later testified that:

“ ‘It wasn’t planned, I attempted to rob a store, and it wasn’t complete. I made a mistake, and I am asking for a chance.
“ ‘Q. What if the man wouldn’t give you the money?
“ ‘A. I wouldn’t have used the gun.
“ ‘Q. If you weren’t going to use it, why did you take it? Why did you pull it out? Why did you point it at him?
“ ‘A. Why did I point it at him?
‘“Q. Yes.
“ ‘A. Well, like I said, I was attempting to rob him.’

“The indictment against appellant alleged that on or about November 1,1974, in Dallas County, Jerry Alonzo Gates

“ ‘did then and there unlawfully while in the course of committing theft and with the intent to obtain and maintain control of the property of Agapito Hernandez, hereinafter called “complainant” the said property being current money of the United States of America, without the effective consent of the said complainant and with the intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, towit, a handgun, knowingly and intentionally threaten and place the said complainant in fear of imminent bodily injury.’

“This indictment complies with the elements of aggravated robbery as set forth in V.T.C.A., Penal Code, Sections 29.02 and 29.03.

“It is well established by the decisions of this Court involving robberies committed since the effective date of the new Penal Code that the actual commission of the offense of theft is not a prerequisite to the commission of robbery. See Earl v. State, [Tex.Cr.App.] 514 S.W.2d 273; Fisher v. State, [Tex.Cr.App.] 538 S.W.2d 623; Servance v. State, [Tex.Cr.App.] 537 S.W.2d 753; Watson v. State, [Tex.Cr.App.] 532 S.W.2d 619; Reese v. State, [Tex.Cr.App.] 531 S.W.2d 638.

“In Watson v. State, supra, we said:
“ ‘. . . Only recently in Reese v. State, supra, we took note of Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974), where we said that “the actual commission of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same.” See also Watts v. State, 516 S.W.2d 414 (Tex.Cr.App.1974). This is so because the statute defining robbery (V.T.C.A. Penal Code, Sec. 29.02) used the term “in the course of committing theft.” That phrase as defined in V.T.C.A. Penal Code, Sec. 29.01, “means conduct that occurs' in an attempt to commit, during the commission or in immediate flight after the attempt or commission of theft.”
“ ‘It is clear that under the new Penal Code there is no requirement that in every robbery case there must be a fraudulent taking of property as an essential element of the case as was required under the former Code. See Article 1408, Vernon’s Ann.P.C., 1925.’ (Emphasis Supplied)
“Considering the testimony of appellant that he entered the store with his companions, pointed a loaded pistol at the clerk with the intention to rob ‘the store’1 and would have completed the robbery if police had not intervened, such testimony supports his stipulation that the offense of robbery was committed. His testimony regarding ‘attempted robbery’ was a conclusion of his, obviously referring to his failure to complete the theft, and should not be permitted to govern over his other testimony concerning the facts. As demonstrated by his own testimony, he entered the store, exhibited to the clerk a loaded pistol while in the course of committing theft (see V.T.C.A. Penal Code, Sec. 29.01), even though theft was not actually committed, and at the time he had the intent to obtain and maintain control of complainant’s property. See V.T.C.A. Penal Code, Secs. 29.01, 29.02, 29.03; Watson v. State, supra; Earl v. State, supra; Reese v. State, supra.
“1. Actually, he meant to rob the clerk of the store, who, the evidence shows, was Agapito Hernandez.
“In Lewis v. State, [Tex.Cr.App.] 529 S.W.2d 550, we cited with approval Reyna v. State, [Tex.Cr.App.] 434 S.W.2d 362, and said:
‘Reyna v. State, supra, further held that the trial court is only obligated to withdraw a defendant’s plea of guilty when testimony is introduced which “ . . . makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn.
“ ‘ “[T]hat evidence must go further than just tending to show a defensive issue, but must reasonably and fairly present such issue before the trial court would be required to withdraw the guilty plea.” 434 S.W.2d 362, 365.
“ ‘See also Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1974); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Navarro v. State, 141 Tex.Cr.R. [196], 147 S.W.2d 1081 (1941); Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915).’
“See also Davis v. State, [Tex.Cr.App.] 507 S.W.2d 740.
“In Cooper v. State, [Tex.Cr.App.] 537 S.W.2d 940, we said:
“ ‘We note also that when the evidence introduced makes evident the innocence of the accused, or if it is clear that the evidence sufficiently raises a defensive issue the court is required to withdraw the guilty or nolo plea on its own motion. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Burks v. State, 165 S.W.2d 460, 145 Tex.Cr.R. [15] 19 (Tex.Cr.App.1942).’
“In Cooper, the defendant pled nolo con-tendere, but testified to an alibi, which testimony was corroborated by another witness. This testimony if true would have been a complete defense to the charge against the defendant, and we held that the trial court reversibly erred in failing to withdraw the plea of nolo contendere. See also Rayson v. State, [160 Tex.Cr.R. 103] 267 S.W.2d 153; Fite v. State, [163 Tex.Cr.R. 279] 290 S.W.2d 897.
“In the instant case . . . the testimony of appellant was not sufficient if believed to make evident the innocence of appellant of the offense of aggravated robbery, and did not fairly raise an issue as to such fact. The trial court did not err in failing to withdraw sua sponte appellant’s plea of guilty.
“. . . [T]he record establishes that appellant’s plea of guilty was made freely and voluntarily after being fully admonished by the court of the consequences of such plea. See Art. 26.13, V.A.C.C.P.
U * * *
“Green, Commissioner”

Appellant admitted that he had a loaded pistol on this occasion and that he exhibited it in the course of committing the crime of theft. This establishes robbery as the majority correctly decided in the opinion on original submission.

Where does any of the testimony raise a fact issue? This is not pointed out by the majority because there is none. Until such a fact issue is raised, there is no duty for a trial court to withdraw a plea of guilty. See Sanchez v. State, Tex.Cr.App., 543 S.W.2d 132 (1976). Apparently the majority does not note the difference under the former Penal Code, Article 1408, which required that property had to be taken before an offense of robbery may be committed by use of a deadly weapon while in the course of committing theft. As seen from the above, in the course of committing theft includes attempts to take property.

The majority should follow the present Penal Code and not construe it according to the provisions of the former Code which has been repealed.

It is difficult, in fact impossible, to understand the majority’s two positions: (1) that the evidence is sufficient to support the conviction for robbery when there was an attempt to take the money, and (2) that the testimony of appellant that he was guilty and that he was attempting to take the money created a fact issue.

The motion for rehearing should be granted and the judgment should be affirmed.

      . While this Court has stated it before, Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1969), we take the opportunity to say it again: The proper time for a defendant to be admonished of the consequences of his plea of guilty is upon arraignment and before the jury is empaneled.

      . Such hypothesizing would be unnecessary if the parties and the trial court did not automatically assume that the record spoke the truth. The parties have an obligation to examine the record after it is completed so that they may object to the record and make it speak the truth. Art. 40.09(7), V.A.C.C.P. The trial court has a similar duty under Article 40.09(7). See also. Art. 40.09(12) and Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975).

      . The appellant testified “. . .1 attempted to rob a store, and it wasn’t complete .


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

text:
    Earl Elmer WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 47507.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.

      Jim B. Brown, Canyon, for appellant.
    Tom A. Curtis, Dist. Atty. and Gene Storrs, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

I.

This case is before us after having been remanded by the United States Supreme Court.

On original submission, this Court held that the search of appellant’s car without a warrant violated the Fourth Amendment of the Federal Constitution. White v. State, 521 S.W.2d 255 (Tex.Cr.App.1975). The Supreme Court granted certiorari and reversed this Court’s judgment, relying on Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

IL

Thus, the validity of the search under federal constitutional law has been conclusively decided. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

We do not dispute the validity or binding effect of the Supreme Court’s holding in Texas v. White, supra. However, we have concluded that the State of Texas violated the provisions of its own Constitution in pursuing the appeal of this case to that Court.

Article 5, Section 26, of the Texas Constitution provides:

“The State [of Texas] shall have no right of appeal in criminal cases.”

The cases interpreting this constitutional provision have never questioned its validity, only its applicability.

The earliest cases uniformly held that bail forfeitures are criminal cases and that the State could not appeal an adverse ruling in such a ease — despite a statute which allowed an appeal by either party. State v. Ward, 9 Tex.App. 462 (Tyler Term 1880); Hart v. State, 13 Tex.App. 555 (Galveston Term 1883); Perry v. State, 14 Tex.App. 166 (Austin Term 1883); Robertson v. State, 14 Tex.App. 211 (Austin Term 1883).

In Hart, the Court of Appeals also held that the State could not evade the mandate of the constitutional provision by taking its case to the Court by writ of error rather than by appeal. A writ of error, the Court said, “is only another mode of bringing up the cause for revision on appeal.” Hart v. State, supra, 13 Tex.App. at 557.

In State v. Wilson, 131 Tex.Cr.R. 43, 95 S.W.2d 971 (1936), the Court held that the State’s attempt to appeal the quashing of an indictment came within the proscription of Section 26.

In Dewberry v. State, 162 Tex.Cr.R. 160, 283 S.W.2d 399 (1955), the defendant, who had been given a two-year sentence, was allowed to withdraw notice of appeal. He was then, at a subsequent term of court, granted probation by the trial court. No later notice of appeal was filed. It was held that-the State could not urge in this Court that the original non-probated judgment and sentence be affirmed, since to so do “would be to grant the State the right of appeal in a criminal case.” Id., at 161, 283 S.W.2d, at 400.

Similarly, in Yordy v. State, 425 S.W.2d 352 (Tex.Cr.App.1968), the Court held that the State may not seek to reinstate an appeal, although it was clearly held in Ex Parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531 (1912) that the State does have the right to file a motion for rehearing in this Court. A majority of the Court in Wolters also held that a criminal contempt proceeding is not a “criminal case.”

In State v. Marshall, 503 S.W.2d 875 (Tex.Civ.App.-Houston [1st] 1973, no writ), the Court of Civil Appeals held that the State may not appeal from a juvenile court order of dismissal in a delinquency proceeding.

The two threshold issues involved in each of these cases are, first, whether the case is a “criminal case” and, second, whether the process involved is an “appeal.” However, despite the importance of these terms to a construction of Section 26, they have rarely been defined.

In Ex Parte Wolters, supra, the Court quoted from Taylor v. Goodrich, 25 Tex.Civ.App. 109, 40 S.W. 515, 524 (1897):

“A ‘criminal case’ is defined to be an action, suit, or cause instituted to secure a conviction and punishment for crime, or to punish an infraction of the criminal law.”

Accord: Black’s Law Dictionary 447 (Rev. 4th Ed. 1968); see also Griffin v. State, 29 S.W .2d 349 (Tex.Cr.App.1930).

Our research reveals that the word “appeal” has not been construed in Texas by an appellate court having criminal jurisdiction since 1840. In that year, in Republic v. Smith, Dallam 407, the Supreme Court of the Republic of Texas defined an appeal (quoting Blackstone) as “a complaint to a superior court of injustice done by an inferior one.” Mr. Black gives a similar definition. Black’s Law Dictionary, supra, at 124. See also Booth v. Tex. Emp. Ins. Assn., 132 Tex. 237, 123 S.W.2d 322 (1938); Commercial Standard Ins. Co. v. Cotton, 443 S.W.2d 423 (Tex.Civ.App.-Eastland 1969, writ refused).

Following these definitional guidelines, it seems clear that a petition for cer-tiorari, like a writ of error in Texas practice, is an “appeal,” albeit a discretionary one. Hart v. State, supra. Cf. 28 U.S.C. U.S.S.Ct. Rules 11, 19, 23; Durham v. United States, 401 U.S. 481, fn. at 483, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). To say that review by certiorari does not constitute an appeal is to make a distinction without substance, since such a review necessarily involves an attempt to persuade a superior court to correct the error of a lower court.

It is equally clear that the forgery case now before us is a criminal case: It is an action instituted to secure a conviction and punishment for crime. Ex Parte Wolters, supra. And, like other criminal cases, it continues to be such while it is pending on appeal in this Court, since, as we held in Cuellar v. State, 521 S.W.2d 277, 280 (Tex.Cr.App.1975):

“An action or suit is pending from its inception until the rendition of final judgment. A cause is pending until mandate is issued from this Court.”

The only remaining question is whether an action continues to be a criminal case while it is being appealed by certiorari from this Court to the Supreme Court.

A petition for certiorari in the Supreme Court is an effective bar to the finality of a judgment of this Court; this is true because, if certiorari is granted and this Court’s judgment is reversed or otherwise modified, the judgment of the Supreme Court is binding upon this Court. Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 4 L.Ed. 97 (1816); Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 5 L.Ed. 257 (1821); Ableman v. Booth, 21 How. (62 U.S.) 506, 16 L.Ed. 169 (1859); Oregon v. Hass, supra. Therefore, a criminal case which is pending in the Supreme Court is still pending as a criminal case as far as the parties and this State’s courts are concerned, since the Supreme Court can act to overrule the finality of the State judgment.

It follows that a petition for certio-rari in the Supreme Court in a case such as the one before us is an appeal of a criminal case; such appeals are expressly forbidden by Art. 5, Sec. 26 of the Texas Constitution and can no longer be allowed.

We reiterate that we do not challenge the Supreme Court’s holding in Texas v. White, supra; rather, we accord it its full binding effect. Martin v. Hunter’s Lessee, supra; Cohens v. Virginia, supra; Ableman v. Booth, supra; Oregon v. Hass, supra. However, we do hold as a matter of Texas criminal procedure that the State is, in the future, precluded from appealing a criminal case—by certiorari or otherwise—from this Court to the United States Supreme Court. Cf. Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The Supreme Court’s holding in Oregon v. Hass, supra, does not provide authority to the contrary. In that case, the Court merely held that a state may have standing in the Supreme Court to challenge a decision by its highest court in favor of a criminal defendant, provided the decision is based solely on federal constitutional law. Oregon v. Hass, supra, 420 U.S. at 720, 95 S.Ct. 1215.

We have no quarrel with this holding. Were it not for Article 5, Section 26, of our Texas Constitution, the holding in Hass would be wholly applicable to cases appealed from this Court. The fact remains that the State of Texas may not violate its own Constitution, and, since our Constitution provides that the State may not appeal a criminal case, the standing issue is, quite simply, never reached.

It is important to emphasize that we are bound by our own Constitution and by our duty to uphold its provisions. Accordingly, we hold that the State may not in any manner appeal a criminal case from this Court to the Supreme Court of the United States.

III.

Despite the Supreme Court’s binding decision in this case, it has been suggested that this Court may still hold the search invalid under applicable Texas law. See Texas v. White, supra, 423 U.S. at 72, 96 S.Ct. 304 (Marshall, J., dissenting), relying upon Oregon v. Hass, supra, 420 U.S. at 726, 95 S.Ct. 1215 (Marshall, J., dissenting). Cf. Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973); Olson v. State, 484 S.W.2d 756, 759 et seq. (Tex.Cr.App.1972) (Opinion on Appellant’s Motion for Rehearing).

We do not reach this question. The appellant’s sole reliance in the trial court was on cases construing the Fourth Amendment to the United States Constitution— specifically, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and Chambers v. Maroney, supra. At no time during the trial of this case did the appellant urge that Art. I, Sec. 9, of the Texas Constitution supported his motion to suppress.

It is fundamental that the grounds for reversal urged on appeal must comport with the objections made at trial. See, e. g., Smith v. State, 513 S.W.2d 823, 830 (Tex.Cr.App.1974); Campbell v. State, 521 S.W.2d 636, 637 (Tex.Cr.App.1975). Otherwise, nothing is presented for review. Smith v. State, supra; Campbell v. State, supra.

This rule extends to allegations of constitutional error. Foreman v. State, 505 S.W.2d 564, 566 (Tex.Cr.App.1974).

We therefore hold that appellant is precluded from asserting Art. I, Sec. 9, of the Texas Constitution as grounds for holding the search invalid. And, since the Supreme Court has held this search valid for Fourth Amendment purposes, appellant’s contention that the search was invalid must be overruled.

The judgment is affirmed.

ODOM and GUPTON, JJ., concur only in parts I & III.

ONION, Presiding Judge

(concurring).

I concur as to Parts I and II of the opinion by Judge Roberts. As to Part II, I would point out that Texas not only has a constitutional provision prohibiting the State’s right of appeal in a criminal case, Article V, § 26, Texas Constitution, but a statutory admonishment to the same effect. Article 44.01, Vernon’s Ann.C.C.P. By statute Georgia also has a similar absolute bar to the State’s right of appeal in a criminal case. Ga.Code Ann., § 6-901 (1967). Texas and Georgia are the only states with such prohibitions.

It does not appear that the District Attorney nor the appellant called the state policy embodied in the Texas Constitution and statutes to the attention of the United States Supreme Court prior to their decision in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), and I cannot construe such decision, which is silent as to such matter, as authorizing an appeal to the United States Supreme Court by the State despite the state constitutional provision and statutory admonishment, even if the decision is based solely on federal constitutional law. Thus, like Judge Roberts, I agree that Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), is not authority to the contrary in light of our Constitution and statutes.

DOUGLAS, Judge

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction but dissent to the language not necessary to the opinion that would in effect have the Constitution of Texas overrule the Constitution of the United States. At least a plurality of this Court would attempt to forbid the State of Texas from exercising a federal constitutional right in the future.

On original submission in the present case the conviction was set aside on the ground that a Fourth Amendment right of White had been violated. White v. State, 521 S.W.2d 255 (Tex.Cr.App.1975). There were two dissents. If there had been no federal question involved, the Supreme Court of the United States would not have had jurisdiction. Since the federal question had been decided, that Court heard the case and set aside the reversal because such federal question had been answered erroneously against the State.

It should not have to be explained that when a federal question is involved the Constitution of the United States controls over the Constitution of the states.

The Supremacy Clause in Article VI of the United States Constitution provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be found thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This provision is self-explanatory.

To hold that a state cannot appeal when it has been denied a federal right would be like holding that a defendant could not appeal to the Supreme Court of the United States if a state constitution prohibited such an appeal.

      . It would appear, then, that these two terms have acquired “technical or particular meanings” which are quite similar to their meanings in common usage, Art. 5429b-2, Sec. 2.01, Vernon’s Ann.Civ.St. See Webster’s New International Dictionary of the English Language (2d Ed. Unabridged 1944), pp. 129, 415, 626.

      . We are aware that in Cuellar the issue was the meaning of the term “pending.” However, it can not be doubted that an action continues to be a criminal case for as long as it is “pending,” and, conversely, that when a cause is no longer pending, it ceases to be a “criminal case.”

      . Similarly, in his brief on direct appeal, appellant’s reliance was upon federal constitutional law. Appellant has filed no brief in this Court since the Supreme Court’s opinion in Texas v. White, supra.

      . Appellant’s remaining contentions are overruled in part IV of this opinion. They add nothing to the jurisprudence of this State and will not be published. See Thompson v. State, 514 S.W.2d 275, 278, n. 2 (Tex.Cr.App.1974). These contentions are: that there was a fatal variance between the indictment and the proof; that the check made the basis of the information should have been reproduced in the court’s charge; that the appellant should have been allowed to display the check to the jury during his closing argument; and that the prosecutor commented on the appellant’s failure to testify.


author: KEITH, Commissioner.

text:
    Welton TEAL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51931.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.
    Rehearing Denied Dec. 8, 1976.
    Don W. Duran, Lufkin, for appellant.
    Gerald A. Goodwin, Dist. Atty., Lufkin, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

The appeal is from a conviction of attempted murder wherein the jury assessed the punishment at confinement for ten years.

Appellant, along with fifteen or twenty other persons including Earl Brooks, Jr., was in Curtis Henderson’s Cafe on the “front” in Lufkin on the night of November 2, 1974. According to the State’s testimony, appellant pulled his small pistol from his back pocket, pointed it between Brooks’ eyes and pulled the trigger, but the pistol did not fire. Then, according to several State witnesses, appellant shot a second time, this time hitting Brooks in the arm. The witnesses scattered with Brooks running out of the cafe with appellant in hot pursuit. After Brooks had reached the sidewalk running toward his car, appellant continued to shoot in his direction (although appellant claimed to have been shooting in the air over his head), but Brooks was shot only the one time.

Having reviewed the record as a whole, we first consider and overrule appellant’s fifth ground of error asserting that the evidence “wholly failed to show any intent on the part of” appellant to kill Brooks. The contention now advanced was examined and found to be without merit in Garcia v. State, 541 S.W.2d 428 (1976), 1 T.C.R. 642. See also, Colman v. State, 542 S.W.2d 144 (1976), 1 T.C.R. 890, 891.

Although appellant duly and timely objected because of the failure to charge on self-defense and tendered a specially requested charge thereon, the trial court refused the request. Again, we have examined the record and find no evidence which would have justified the inclusion of a charge on self-defense; thus, we overrule his first ground of error.

Having examined the record, and finding that the account in State’s brief of the evidence relating to self-defense is correct, it is copied without benefit of quotation marks: Defense witness Emmett Davis testified that there was no direct physical contact between appellant and Brooks; that there was no fighting or shoving. Davis did testify, however, that Brooks did reach into his back pocket but when he pulled his hand out there was nothing in it. Davis also said that Brooks never made any threats either orally or by gestures toward appellant.

Appellant testified that he had no quarrel or fight with Brooks but did admit that he fired his pistol three times, once inside the cafe and twice outside as Brooks was running. No witness, including appellant, contends that Brooks was armed with any weapon or that he ever threatened appellant in any way.

Appellant’s objections to the charge, his requested charge, and his argument on appeal (with supporting authorities), all invoke the law of self-defense as it existed under the 1925 Penal Code. There is no reference to the 1974 Penal Code provisions nor any decisions from this court under the new code. As pointed out in Sternlight v. State, 540 S.W.2d 704, 705 (Tex.Cr.App.1976):

“One of the most drastic changes made in the new penal code is that before deadly force may be used in self-defense the actor (defendant) is required to retreat if a reasonable person in the actor’s (defendant’s) situation would have retreated. V.T.C.A.Penal Code, Sec. 9.32(2). A brief consideration of the history of the doctrine of retreat is in order.”

See also, Young v. State, 530 S.W.2d 120 (Tex.Cr.App.1975), and Ford v. State, 538 S.W.2d 633 (Tex.Cr.App.1976), both of which refer, generally, to other changes in the law of self-defense brought about by the adoption of the 1974 Penal Code.

Although the new Penal Code has made a drastic change in the substantive law relating to self-defense, the right to a charge on self-defense remains unchanged: such a charge is required only when there is evidence in the record raising the issue. The testimony noted earlier did not require the giving of the requested charge. See and compare Dominquez v. State, 532 S.W.2d 95, 97 (Tex.Cr.App.1976).

See also, McCartney v. State, 542 S.W.2d 156 (1976), 1 T.C.R. 940, contrasting instructions on manslaughter under the 1974 Penal Code with those on murder without malice under the 1925 Code.

In his second ground of error, appellant contends that the trial court erred in submitting a charge on aggravated assault as a lesser included offense “because such a charge is a comment on the weight of the evidence.” Again, we disagree and overrule such ground of error.

Appellant’s argument follows this syllogism: (1) The two offenses covered in the charge (aggravated assault and voluntary manslaughter) have the same punishment; (2) having the same punishment fixed by the statute, each is equal to the other so that aggravated assault cannot be a lesser included offense; ergo, (3) the State is given two bites at the apple and the charge constitutes a comment upon the weight of the evidence.

The flawed syllogism discloses the fallacy of the argument, but we will meet the contention directly. In Day v. State, 532 S.W.2d 302, 315-316 (Tex.Cr.App.1976, upon rehearing), the Court considered the question carefully, saying:

“[Wjhether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case.”

The elements of murder, as defined in V.T.C.A., Penal Code, Sec. 19.02 (1974), are these: (1) a person (2) who intentionally or knowingly causes the death of an individual; or (3) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

The elements of a criminal attempt to commit murder as set out in V.T.C.A., Penal Code, Sec. 15.01 (1974), are these: (1) a person who (2) with specific intent to commit murder (3) does an act amounting to more than mere preparation that (4) tends but fails to effect the commission of the offense intended.

An aggravated assault, as defined in V.T. C.A., Penal Code, Sec. 22.02 (1974), as applicable to this cause, reads:

“(a) A person commits an offense if he commits assault as defined in Section 22.-01 of this code and he:
“(1) causes serious bodily injury to another;
or
“(3) uses a deadly weapon.
“(c) An offense under this section is a felony of the third degree.”

The elements of the offense under See. 22.02 are: (1) a person (2) intentionally, knowingly, or recklessly (3) causes serious bodily injury to another (4) by using a deadly weapon.

We conclude that aggravated assault is a lesser included offense of attempted murder under the plain provisions of Vernon’s Ann.C.C.P., art. 37.09 (Supp. 1976-1977), since we have the following common elements present: (1) a person who (2) with specific intent to commit murder (3) does an act amounting to more than mere preparation (4) which tends but fails to cause serious bodily injury (5) by committing an act clearly dangerous to human life (6) through the use of a deadly weapon.

This holding is compatible with the holdings of this Court under the 1925 and earlier codes. See P. McClung, “Jury Charges for Texas Criminal Practice” (1976 Ed.), p. 234, citing Lacoume v. State, 65 Tex.Cr.R. 146, 143 S.W. 626 (1912). See also, McDonald v. State, 462 S.W.2d 40, 41, fn. 1 (Tex.Cr.App.1970); 29 Tex.Jur.2d, Homicide, § 121, pp. 137, 139 (1961), and cases therein cited. The second ground of error is overruled.

In his third and fourth grounds of error, appellant complains of questions propounded to his witnesses by State’s counsel upon cross-examination. We have examined each of the instances mentioned and find that the complaints are wholly without merit. Each ground of error is overruled.

The judgment of the trial court is affirmed.

Approved by the Court.

      . The argument is expressed in these words, inter alia: “The Defendant would show that the Court charged the jury on aggravated assault and for voluntary manslaughter. Each of these offenses has the same punishment, so therefore aggravated assault is not a lesser included offense to voluntary manslaughter.”

      . Appellant’s counsel is mistaken as to the punishment for the two crimes. Voluntary manslaughter is a felony of the second degree, V.T. C.A., Penal Code, Sec. 19.04(d); whereas, aggravated assault is a felony of the third degree. Id., Sec. 22.02(c).

      . Under Sec. 22.01, a person commits the offense of an assault if he “(1) intentionally, knowingly, or recklessly causes bodily injury to another; . . . ”

      . Sec. 22.02(a) is in the disjunctive: the offense is complete if the assault causes serious bodily injury or is effected by the use of a deadly weapon.

      . In other cases, this Court has followed a similar rationale. See, e. g., Day v. State, 532 S.W.2d 302, 315 (Tex.Cr.App., 1976, on rehearing); Raven v. State, 533 S.W.2d 773, 775 (Tex.Cr.App.1976), and Hazel v. State, 534 S.W.2d 698, 701 (Tex.Cr.App.1976).


text:
    Robert Tillman DUGGER, Appellant, v. The STATE of Texas, Appellee.
    No. 51933.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.
    Rehearing Denied Dec. 8, 1976.

      Robert T. Baskett, Dallas, court appointed, for appellant.
    Henry Wade, Dist. Atty. and Steve Wil-ensky, G. Norman Kinne and Hugh Lucas, Jr., Asst. Dist. Attys., Dallas, Jim D. Vol-lers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

The appeal is from a conviction of murder where the jury fixed the punishment at confinement for life. A statement of the underlying fact structure is needed to place appellant’s complaints in focus.

On Sunday morning, February 3, 1974, Tommy Galbraith left home about 7:30 to serve National Guard duty, leaving his wife Vicky and infant daughter Tammy at home. He returned about 9:30 with several fellow guardsmen to get his motorcycle for use during the day. He went into his house, briefly noting that Vicky was wearing a blue bathrobe and yellow bikini panties.

About this time, Becky Clark visited appellant’s stepdaughter Teresa at appellant’s home and Becky then saw appellant in his garage next door to the Galbraith home. Around 10 a. m., ten-year-old Rodney Harris, playing at his home across the street from the Galbraith residence, saw appellant knocking on the Galbraith front door but did not see appellant enter the house.

Sometime shortly thereafter, Becky Clark and Teresa were engaged in throwing a frisbee in appellant’s backyard when it was thrown accidentally into the Galbraith backyard. Becky went to the front door intending to seek permission to go into the backyard to get the frisbee; but, when she rang the bell, no one answered although she did hear movements in the house. Becky and Teresa were playing another game in Teresa’s backyard when she noticed the closed blinds on the Galbraith house begin to shake, at which time they broke up their game.

About 11:30, appellant returned to his home appearing to be visibly shaken and upset. He left in his car about fifteen minutes later.

Around 2:30 in the afternoon, Galbraith returned home with two guardsmen, Keith Barber and Guy Senter, who began unloading the motorcycle while Galbraith went inside to greet his wife. He emerged almost immediately screaming and stumbling from the house.

Barber and Galbraith removed the infant Tammy from the house and returned to survey the scene. Vicky’s nude body was found upon the bed, her robe having been torn and her panties removed. Her hands were tied behind her back with a cord which was wrapped around her neck in such manner that if she moved her arms, she would choke herself. An ax handle which Galbraith kept around the house for protection was found near the bed. Dallas Police Officer Jerry Debenport testified that Vicky’s head was mutilated almost beyond recognition; the ax handle and bed were covered with blood and the walls and ceiling of the room were splattered with blood.

Appellant’s fingerprints were lifted from the headboard of the bed in which Vicky was found; and, we note at this point that Galbraith testified that appellant had never before been in the house.

Medical Examiner DiMaio testified that Vicky died from massive injuries to the head and neck as well as stab wounds, one piercing the liver and the other causing hemorrhaging into the lung cavity. The examiner also found live male sperm in the deceased’s vagina.

Appellant did not testify at the guilt/innocence stage of the trial but did testify upon the penalty hearing making a judicial confession that he had murdered Vicky Galbraith. He testified that she had seduced him upon two prior occasions and he had had sexual intercourse with her in her home during her husband’s absence; that on the day of the murder, she again enticed him into an attempt at sexual intercourse but, when he was unsuccessful in his attempt, she threatened to accuse him of rape. Since he had been convicted of felonies at least five times earlier, he knew that if she did so, he would be sentenced to life in prison. Incredibly, he testified that he felt no remorse for his actions. Having heard appellant’s confession of his crime, the jury quickly assessed the maximum punishment which the State sought.

Appellant was arrested the night of the murder and eight days later one of the District Judges in Dallas County appointed counsel to represent him although the indictment was not returned until February 25,1974. As early as March 6,1974, appellant wrote to the trial judge complaining of appointed counsel’s failure to confer, etc., and sought his discharge and the appointment of another named individual as his attorney. He kept making requests at frequent intervals preceding the commencement of his trial on January 13, 1975.

The primary thrust of the brief filed by his newly appointed counsel upon appeal is that the trial court erred in refusing to discharge his originally appointed counsel and refusing to permit appellant to represent himself without assistance of counsel. Counsel relies primarily upon Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (June 30, 1975), which was decided approximately six months after the completion of the appellant’s trial. Thus, initially, we note that the Supreme Court did not specifically declare that the holdings in Faretta were retroactive and counsel has not cited us to an authoritative case which so holds.

Counsel has presented us with an excellent brief which covers the right to represent one’s self in a criminal case. We have studied carefully all of the several handwritten complaints filed in the trial court which complain of counsel and are unable to determine that appellant ever at any time actually sought the entry of an order discharging his counsel and permitting him to defend himself without assistance of counsel. The closest appellant ever comes to bringing himself within the Faretta doctrine is by asking the discharge of his court-appointed counsel without requesting that another be appointed.

Although counsel bases a large portion of his argument upon the instrument which appellant entitled “Motion and Notice of Retainment [sic] of Power of Attorney”, a reading of the document leads to the belief that appellant was demanding his right to be present at any time someone was acting in his behalf, and not for the right to defend himself.

On the day of trial, the court disposed of all of the pending motions which had been filed by appellant’s counsel as well as the pro se motions appellant had filed. When he came to the one mentioned earlier, this colloquy is to be found in the record:

“[THE COURT]: You have a Motion and Notice of Retainment [sic] of Power of Attorney.
“I think I understand you don’t want anything Mr. Ballew does to have any effect on you; is that what you are saying?
“THE DEFENDANT: In other words, anything that he does, he goes through me to do it, that affects my case, such as signing any kind of statement, affidavits or any—
“THE COURT: There is nothing that your lawyer can do without your signature, Mr. Dugger, that waives any of your rights or binds you in any way in a criminal court; maybe in a civil court, but not a criminal court.”

We agree with the State’s counsel in concluding that this particular motion does not invoke the Faretta doctrine.

We have examined the record carefully in view of appellant’s severe attacks upon the competency of his appointed counsel and disagree with the contentions now advanced. On the contrary, a review of the record indicates that appellant’s trial counsel discharged his duties to his client in accordance with the traditions of our bar. It would lengthen this opinion unnecessarily to spell out each detail of appellant’s complaints against his counsel. In the very recent case of Ex parte Prior, 540 S.W.2d 723, 726-727 (Tex.Crim.App.1976), Presiding Judge Onion dealt with many of the cases on the subject.

We do not find it necessary, and consequently decline, to take up each instance of ineffectiveness alleged in appellant’s brief since the quality of representation is to be judged by the “ ‘totality of the representation.’ ” Stutes v. State, 530 S.W.2d 309, 314 (Tex.Crim.App.1975). As in Stutes, supra,- the record shows that appellant’s appointed counsel filed many pre-trial motions, cross-examined the State’s witnesses extensively, and put appellant’s stepdaughter upon the stand. After appellant elected to take the stand and testify in the punishment phase of the trial, it is apparent that appellant’s counsel had little to work with in presenting a defense.

We find, from our study of the record, that appellant was not denied effective assistance of counsel. Ex parte Gallegos, 511 S.W.2d 510, 512 (Tex.Crim.App.1974). See Note, 6 Tex.Tech L.Rev. 1155 (1975), commenting upon Gallegos.

Appellant’s judicial confession, made at the punishment phase of the trial, has mooted many of the questions so diligently presented by his counsel. When he testified that he killed Vicky Galbraith under the circumstances we have mentioned earlier, appellant removed from the case all question of the sufficiency of the evidence to sustain the conviction. Boothe v. State, 474 S.W.2d 219, 221 (Tex.Crim.App.1971). Accord: Garcia v. State, 522 S.W.2d 203, 205 (Tex.Crim.App.1975); Jones v. State, 518 S.W.2d 245, 247 (Tex.Crim.App.1975); Sims v. State, 502 S.W.2d 730, 731 (Tex.Crim.App.1973); McKenzie v. State, 487 S.W.2d 65, 66 (Tex.Crim.App.1972); Brown v. State, 487 S.W.2d 86, 87 (Tex.Crim.App.1972); Sheridan v. State, 485 S.W.2d 920, 921 (Tex.Crim.App.1972); Evans v. State, 480 S.W.2d 387, 390 (Tex.Crim.App.1972); Chaney v. State, 477 S.W.2d 580, 581 (Tex. Crim.App.1972); Palmer v. State, 475 S.W.2d 797, 798 (Tex.Crim.App.1972); Richardson v. State, 458 S.W.2d 665, 666 (Tex.Crim.App.1970).

Any complaint appellant may have had as to the adequacy of his representation by appointed counsel was waived when he made a judicial confession of the offense with which he was charged. Thus, his confession rendered the error, if any, harmless beyond a reasonable doubt. Hunnicutt v. State, 531 S.W.2d 618, 622 (Tex.Crim.App.1976).

Moreover, as stated in Rozell v. State, 502 S.W.2d 16, 18, footnote 1 (Tex.Crim.App.1973): the appellant having testified at the penalty stage of the trial that he was guilty, “[h]is testimony could be introduced in the event of another trial”, with the court citing Richardson and Boothe, supra.

All grounds of error complaining of the adequacy of the representation by appointed counsel, and ground of error number six complaining that “the admissible evidence is insufficient to support the verdict,” are overruled.

In his fourth ground of error, appellant claims that the trial court erred in admitting photographs of the body of the deceased taken at the scene of the murder because they were inflammatory and calculated to incite the emotions of the jury and would not tend to solve any relevant or material issue. Having examined the several pictures introduced showing the wounds upon the body of the deceased, we find that such simply graphically represented what they purported to depict. Appellant asks us to overrule the rule established in Martin v. State, 475 S.W.2d 265, 267 (Tex.Crim.App.1972):

“If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.”

Counsel suggests that we should abandon the rule set out in Martin, supra, and return to the rule which prevailed before Burns v. State, 388 S.W.2d 690 (Tex.Crim.App.1965), was overruled by Martin

The rule enunciated in Martin, supra, has now become firmly entrenched in our jurisprudence. See, e. g., Lopez v. State, 535 S.W.2d 643, 651 (Tex.Crim.App.1976):

“There was testimony of the condition of the deceased’s body at the scene. It is well established that since a verbal description of the body and the scene was admissible it is not error to admit into evidence photographs thereof. Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974); Winegarner v. State, 505 S.W.2d 303 (Tex.Cr.App.1974); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972).”

See also, Sternlight v. State, 540 S.W.2d 704, 707 (Tex.Crim.App.1976), where other decisions, also following the Martin Case, are cited.

We decline appellant’s invitation to overrule Martin and resurrect Burns; and, so holding, his ground of error number four is overruled.

The fifth complaint brought forward is that the court erred in refusing to declare a mistrial when the husband of the deceased volunteered the testimony that his infant daughter was at the scene of the crime “and saw everything and knows everything.” Appellant’s objection was sustained and the jury instructed to disregard the statement but his motion to declare a mistrial was overruled. No error is shown. The prompt action of the court cured the error, if any. As said in Florio v. State, 532 S.W.2d 614, 617 (Tex.Crim.App.1976), “This Court has often held that an unresponsive answer is cured by an instruction to disregard.” Ground five is overruled.

An examination of the few remaining grounds of error in the brief filed by appellant’s counsel fails to reveal error and each such ground is overruled. Likewise, we do not find error to be presented by appellant’s pro se brief.

The judgment of the trial court is affirmed.

Approved by the Court.

       This is the language used in changing the rule:
      “The former rule in this state, that gruesome photographs are not admissible unless they tend to solve a disputed fact issue as discussed
      in Burns v. State, 388 S.W.2d 690 (Tex.Cr.App.1965), is hereby overruled to the extent of any conflict with this decision.” (475 S.W.2d at 268)


text:
    Lee William WELCH, Appellant, v. The STATE of Texas, Appellee.
    No. 52602.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.
    Rehearing Denied Dec. 8, 1976.

      R. Paul Brauchle and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty. and W. T. West-moreland, Jr., Les S. Eubanks, Jr., and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for theft over $200.00. After the jury returned a verdict of guilty, punishment was assessed by the court at five years.

The indictment alleges the offense occurred on or about February 26, 1975, and the record reflects that the indictment was returned on July 21, 1975.

Appellant contends that the indictment is defective in that it insufficiently describes the property taken as “seven rifles of the total value of at least $200.00 but less than $10000.00,” and that the court erred in overruling his motion to quash the indictment.

Article 21.09, V.A.C.C.P., as amended effective June 19, 1975, reads in pertinent part:

“If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice. . . . ”

Former Article 21.09, Y.A.C.C.P., provided as follows:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known shall be sufficient. . . . ”

Since the amendment to Art. 21.09, supra, became effective June 19, 1975, and the indictment was returned June 21, 1975, the indictment was subject to the requirements of Art. 21.09, supra, as amended.

Appellant points to the fact that the guns had been in the possession of police for four months and that it was within the knowledge of the State that one of the guns was a “243 Remington bolt action rifle with a scope” and another was an “1892 Winchester.” It appears to be appellant’s position that the State should have described the property accordingly in its pleading.

While Art. 21.09, supra, prior to amendment referred to a “general description,” it specifically noted that property should be described by (1) name, (2) kind, (3) quality, (4) number, and (5) ownership. Article 21.-09, supra, as amended, while omitting the words “general description,” added no specific requirements in describing property. In fact, one of the specific requirements, “quality,” was omitted. The amended statute did add when the specific requirements of description are unknown “that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.” The State suggests that the latter provision was occasioned by the consolidation of theft offenses in the penal code so as to accommodate the allegation of theft by worthless check in certain eases. An instance cited by the State is where an individual gives a worthless check at a supermarket for a number of grocery items. A general description of the articles taken would, in most such instances, be all that could be alleged. In such cases, it would be necessary for the State to allege groceries generally and that a better description is unknown, if, indeed, no further description was known. We find merit in the State’s suggestion.

We conclude that Art. 21.09, supra, as amended, places no greater burden on the State to more specifically describe personal property alleged in an indictment than before.

In Mays v. State, Tex.Cr.App., 428 S.W.2d 325, and Kirkland v. State, Tex.Cr.App., 489 S.W.2d 298, it was held that the descriptions “one television set” and “one oxygen container and the contents thereof, to-wit: oxygen,” respectively, were sufficient where motions to quash were filed alleging that the property was not sufficiently described under former Art. 21.09, supra.

We cannot agree that it was incumbent upon the State to allege the brand name, date of manufacture, whether the rifle had a scope, or was automatic, pump or bolt action.

We find that the indictment sufficiently described the property alleged to have been taken and that the court was not in error in overruling appellant’s motion to quash.

Appellant contends the evidence is insufficient to support the conviction.

Harold Harmon testified that he lived in a house in University Park he had purchased from appellant's father in March, 1974. The garage with the house had a number of cabinets where hunting and fishing gear were stored. The doors to the garage were closed and the cabinet in question was locked the night of February 24, 1975. Upon arriving home from work the next day, Harmon noticed the garage door was open and on investigation determined that a cabinet “had the lock ripped off” and that eight guns had been taken.

Grady Newton, supervisor of criminal investigation at Southern Methodist University, testified that on March 4, 1975, he had an occasion to talk to appellant. At such time appellant was not under arrest and Newton knew nothing of the instant offense. Appellant told Newton that he had taken guns from a garage at a house in University Park where he had previously lived. Appellant took Newton to a Billy Morgan’s house in order that the guns might be recovered from a garage where they had been stored. Prior to the arrival of appellant and Newton at the Morgan home, Officer Fletcher of the University Park police had gone to the Morgan home as the result of a tip from an informant. Fletcher, after receiving consent, searched the garage and recovered six guns. Appellant was not arrested until the following day, March 5, 1975. On this date, Officer Gatlin, at Fletcher’s direction, went to an apartment on Blackwell Street and recovered a rifle from Oscar Gonzales, who testified at trial that appellant had left the gun with him. Harmon identified the guns recovered from Gonzales and the Morgan home as being those taken from his garage.

Appellant urges that the evidence shows “only bare possession” of the stolen property and argues that under our decision in Pool v. State, Tex.Cr.App., 528 S.W.2d 255, that this is insufficient to show that appellant exercised control over the stolen property. This argument overlooks Newton’s testimony that appellant admitted taking the guns. The testimony of Gonzales placed appellant in possession of one of the rifles and Newton testified that appellant took him to the place where six of the guns had been recovered earlier that day. We find the evidence sufficient to support the conviction.

Appellant contends that the court erred in admitting evidence of an extraneous offense.

Appellant complains of the court’s failure to sustain his objection to Newton’s testimony relative to appellant telling him that he had taken guns from a garage at a house where he used to live in University Park. Appellant reasons that such testimony constitutes an admission to the offense of burglary, that appellant was charged with theft in the instant case, and that the State may not offer evidence of the extraneous offense of burglary unless it is prepared to prove that the accused committed the offense.

Where the offense is one continuous transaction, or another offense is a part of the case on trial or blended or closely interwoven, proof of all the facts is proper. Tinsley v. State, Tex.Cr.App., 461 S.W.2d 605; Jones v. State, Tex.Cr.App., 472 S.W.2d 529; Love v. State, Tex.Cr.App., 533 S.W.2d 6.

No error is shown.

Appellant contends the court erred in failing to submit appellant’s charge on circumstantial evidence.

Appellant cites Hielscher v. State, Tex.Cr.App., 511 S.W.2d 305 for the proposition that where a defendant’s admission is relied on to render a charge on circumstantial evidence unnecessary, such admission must be unequivocal. It appears to be appellant’s position that the appellant admitted taking guns from an unspecified house in University Park. In the instant case there was evidence before the jury that appellant admitted that he had taken guns from a garage at a house in University Park where he had previously lived. Other evidence shows that appellant had lived at this house.

We find appellant’s admission to Newton to be an admission of the offense charged and not circumstantial evidence of the main inculpatory fact. Thus, no charge on circumstantial evidence was required. Sloan v. State, Tex.Cr.App., 515 S.W.2d 913; Swift v. State, Tex.Cr.App., 509 S.W.2d 586; Hogan v. State, Tex.Cr.App., 496 S.W.2d 594.

Lastly, appellant urges that having been acquitted for the offense of burglary of the Harmon house arising out of the same transaction in a former trial, the doctrine of collateral estoppel applies and precludes prosecution of appellant for the offense of theft.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, the United States Supreme Court noted that “collateral estop-pel” is an awkward phrase and said, “It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit.” The Supreme Court further stated that where an acquittal is based upon a general verdict a court is required to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter, and conclude whether a rational jury could have granted its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”

The transcription of the court reporter’s notes, the pleadings, charge and other relevant matter from Cause No. F-75-3749-JL in which appellant was acquitted of the offense of burglary are in the record before us. The record reflects that the testimony in the burglary trial is essentially the same as that in the instant case. The indictment in the prior trial contains the elements of burglary as set forth in V.T.C.A. Penal Code Sec. 30.02(a)(1) and the court’s charge requires proof of such elements. We find it unnecessary to detail the difference in the elements necessary to be proven in burglary and theft under V.T.C.A. Penal Code Sec. 31.03. In the court’s charge in the burglary case a factual issue was submitted to the jury on accomplice witnesses. No such charge was submitted in the instant case.

As in the instant case, Newton’s testimony in the prior trial was uncontroverted relative to appellant admitting to him that he had taken the guns.

We cannot conclude from the jury’s general verdict of acquittal in the former trial that an issue of fact was resolved against the State which was necessary to again litigate in the instant case. We find that the rule of collateral estoppel is not applicable to the instant ease.

The judgment is affirmed.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Robert Charles SCHROEDER, Appellant, v. The STATE of Texas, Appellee.
    No. 51988.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.

      Ronald H. Moody and Frank M. Fitzpatrick, Jr., Waco, Will Gray, Houston, for appellant.
    Martin D. Eichelberger, Dist. Atty., Lynn Malone, Asst. Dist. Atty., Waco, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder with malice. Punishment was assessed at life imprisonment.

Appellant, through briefs presented by both retained and appointed counsel, asserts seven grounds of error.

First, appellant argues that the trial court erred in denying his requested charge on alibi.

The record demonstrates that no evidence of alibi was offered at the trial. Schroeder asserts, however, that the defense of alibi was raised because the State only offered circumstantial evidence. We do not agree.

A jury charge on the defense of alibi is only required when there is affirmative evidence that the accused was somewhere else when the offense was committed. Burns v. State, 509 S.W.2d 366; Windham v. State, 162 Tex.Cr.R. 580, 288 S.W.2d 73. The appellant offered no affirmative proof of alibi, and it can hardly be contended that the State’s reliance on circumstantial evidence raised this defense. Cf. Nelson v. State, Tex.Cr.App., 511 S.W.2d 18. The first ground of error is overruled.

In his second ground of error appellant contends the evidence is insufficient to support his conviction. In support of this contention, appellant’s argument consists of a statement of a small portion of the circumstantial evidence presented by the State and the assertion that guilt upon those few circumstances would have required the jury to base inference upon inference in reaching its verdict. The State in reply has detailed the many circumstances shown by the evidence, with prolific citations to the record.

The deceased was shot numerous times with Federal ammunition fired from a .22 caliber weapon. A window at the gas station where the offense occurred had been broken out during the 15 minute interval during which the offense was committed. Within minutes after the offense appellant arrived at a nearby truck stop. He was seen there in possession of and offering to sell a gun similar in appearance to the established murder weapon. One hand was freshly cut and bleeding, and he gave different explanations for his cut hand to different people he talked to. He was “jumpy” and appeared nervous whenever the word “cops” was mentioned. He expressed an intent to leave town forever, but threatened one person he would return looking for him with a gun if he told the police about him. When he was arrested about two hours after the offense, a cartridge of the same brand as the shells found at the crime scene was found in his jacket pocket. Glass particles were found in his shoe, and on the seat and floor of his car. Several scientific tests on the particles showed similarities and revealed no differences between those particles and particles of glass from the broken window at the scene of the crime. Without detailing further circumstantial evidence, we find it sufficient to support the verdict.

The second ground of error is overruled.

In his third ground of error appellant contends that the trial court erred in failing to declare a mistrial after a disturbance in the courtroom. The transcript establishes that a person, later identified as the brother of appellant, stood up and screamed:

“They’re lying god damn it.”

The record indicates, however, that this outcry occurred after the jury had been removed from the courtroom. The appellant has failed to demonstrate, either by motion for new trial or otherwise, that the jury heard or was influenced by this statement. Appellant’s third ground of error is overruled.

Grounds of error four through seven concern the charge given to the jury. Appellant contends that certain fundamental instructions on the presumption of innocence, the State’s burden of proof and the purpose of the indictment were improperly omitted from the charge. The final ground of error asserts that appellant was denied effective assistance of counsel because his trial lawyer failed to object to the defective charge.

After the briefs were filed, the trial court supplemented the record in order to correct the charge in the original record. The trial court’s order supplementing the record states that the fifth page of the charge given to the jury was omitted when the original charge was copied. The omitted page contains the jury instructions Schroeder alleges were absent from the charge.

Appellant in his supplemental brief argues “This ex parte order was drafted in a belated effort to cure or eliminate fundamental errors contained in the charge to the jury. It was entered when neither the appellant nor his lawyer was present and, consequently, the appellant was denied his right to challenge the validity of these purported ‘corrections.’ ”

From what appears in this record, appellant and his counsel were not given prior notice of the supplementation of the record, nor were they provided an opportunity to object to the fully completed record as provided by Art. 40.09(7), V.A.C.C.P. Nevertheless, we have recently held that this statute affords the trial judge limited discretion to supplement the record so that it shall “speak the truth.” Guzman v. State, Tex.Cr.App., 521 S.W.2d 267, 272. Also see, Almand v. State, 536 S.W.2d 377.

The record, as supplemented, demonstrates that the instructions were, in fact, given in the charge to the jury. We overrule the final four grounds of error.

The judgment is affirmed.

      . The counsel appointed for trial purposes filed a brief. Appellant also retained counsel for appeal purposes, thus two briefs are presented for our review.

      . My disagreement with the holding in Guzman v. State, supra, is not withdrawn. See my dissent at 521 S.W.2d 273. I am, however, obligated to follow the decisions of this Court and I do so in the case at bar. Nevertheless, it is my firm belief that notice of the completion of the record should be sent to each party and that all litigants should be given an opportunity to object to the record in accordance with the procedure outlined in Art. 40.09(7), V.A.C.C.P.


text:
    Edward James WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 52173.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.
    Thomas F. Lee, Del Rio, for appellant.
    Tully Shahan, Dist. Atty., Durwood Edwards, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary. Punishment was assessed at ten years’ confinement.

Appellant asserts that the trial court erred in failing to hold a separate hearing to determine his competency to stand trial.

Appellant’s trial was scheduled to start on February 18, 1975. On that day, and prior to the commencement of the trial, he filed a motion requesting that the court grant a separate hearing on the issue of his present insanity.

The court conducted a hearing without a jury. It appears that this proceeding was held in order to determine whether the appellant’s motion requesting a separate competency hearing should be granted.

The record of this proceeding reflects that the appellant would not cooperate with his attorney, did not recognize his attorney, and was complaining of hallucinations. Specifically, he claimed that little green men were pursuing him and had burned his hair off. Dr. Manuel Martinez, a witness at the hearing, stated on cross-examination that there was a possibility the appellant was malingering.

At the conclusion of this testimony, the judge denied the motion for a separate competency hearing. A jury was impaneled and the trial was about to start when the appellant exclaimed that someone or something was after him. The judge ordered him removed from the courtroom and the prosecution commenced. Appellant was eventually allowed to return to the courtroom after he indicated he would create no more disturbances.

Appellant’s trial was conducted before the 1975 amendment of Art. 46.02, V.A.C. C.P. At this time, Sec. 1 of Art. 46.02, supra, provided:

“Section 1. The issue of present insanity shall be tried in advance of trial on the merits, upon written application on behalf of the accused. If upon trial of the issue of insanity in advance of trial on the merits, the accused is found to be presently sane, the trial judge shall dismiss the jury which decided the issue of present insanity and empanel a new jury to hear any subsequent trial on the merits.”

In Carpenter v. State, Tex.Cr.App., 507 S.W.2d 794, at 795, we stated:

“That provision (Article 46.02, Sec. 1, supra) entitles a defendant to a pre-trial hearing on the issue regardless of whether the trial court determines that such issue exists or not. It is a right which may be waived by failing to assert it.”

In the case at bar, the appellant did not waive his right to a separate trial on the issue of his present insanity. Before the amendment of Art. 46.02, supra, in 1975, the trial court was required to conduct a pre-trial hearing on the issue of incompetency to stand trial when the accused made timely application for such proceeding. The hearing conducted without a jury by the court in the case at bar did not satisfy the requirements of Art. 46.02, Sec. 1, supra. The trial court, in this case, did not have the discretion to deny the appellant’s timely motion for a separate trial on the issue of his competency to stand trial.

The judgment is reversed and the cause remanded.

      . Dr. Martinez, the Public Health Officer for Val Verde County, is not a psychiatrist. He did, however, examine the appellant. After the examination, the physician wrote the trial court and recommended that the appellant’s trial be postponed until a psychiatric analysis could be conducted.

      . Article 46.02, Sec. 2, V.A.C.C.P., now provides a different method for raising the issue of incompetency to stand trial. Section 2, supra, allows the trial court to determine whether there is any evidence to support a finding of present insanity on its own motion or on written motion by the defendant or his counsel. A proceeding to determine whether such evidence exists would be entirely proper under the current law. If any evidence exists to support a finding of incompetency, a jury must be impaneled pursuant to Art. 46.02, Sec. 4, supra, to determine the issue. If no evidence exists, however, a separate hearing need not be held. Prior to this amendment, however, a trial court did not have the authority or discretion to deny a timely filed motion requesting a separate hearing on the issue of present insanity. The court in the case at bar, therefore, erred when it denied appellant’s proper application. We also note that evidence of appellant’s present insanity was presented. A separate hearing before a jury should have been held to determine this issue. See, Perryman v. State, Tex.Cr.App., 494 S.W.2d 542; Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517.