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

text:
    Ex parte James Earl CANNON.
    No. 51046.
    Court of Criminal Appeals of Texas.
    May 12, 1976.
    On State’s Motion for Rehearing Nov. 10, 1976.
    State’s Second Motion for Rehearing Denied Feb. 23, 1977.

      Barry P. Helft, Dallas, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

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

Petitioner was convicted of the offense of burglary of a habitation on his plea of guilty before the court, and assessed a five year term of imprisonment on June 27, 1974. No appeal was perfected in the cause.

Petitioner filed his application for writ of habeas corpus with the trial court alleging that his indictment in this case was fundamentally defective because it did not contain allegations in the state’s pleading that appellant “willfully, knowingly, and intentionally” committed said offense. In other words, petitioner’s pro se complaint charged that the indictment failed to allege a culpable mental state. See V.T.C.A. Penal Code, Sec. 6.02(d). The trial court denied the writ, finding that petitioner had waived any complaint to the indictment since no objection had been raised at trial.

In addition to petitioner’s pro se complaint that the indictment fails to allege a culpable mental state, petitioner’s attorney has filed a brief which also points out that this indictment for burglary of a habitation fails to allege that the entry onto the premises was accomplished “with the intent to commit a felony or theft.” See V.T.C.A. Penal Code, Section 30.02(a)(1).

Initially, we note that if the indictment in the case at bar is fundamentally defective, so as not to charge an offense against the laws of Texas, said indictment may be challenged in a post-conviction ha-beas corpus case. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975). The indictment in the present case reads as follows, to-wit:

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jurors, good and lawful men of the County of Dallas, duly elected, tried, empaneled, sworn and charged to inquire of offenses committed within the body of said Dallas County, upon their oaths do present in and to the 203RD JUDICIAL District Court,_of Dallas, County, at the JANUARY Term, A.D., 1974, that one,
JAMES EARL CANNON
hereinafter styled Defendant, on or about the 23 day of April in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.

It is obvious that the above-mentioned indictment fails to allege that petitioner entered the habitation “with the intent to commit a felony or theft”. The allegation in the indictment that the petitioner intended to “exercise control over the property” is not sufficient to allege the crime of theft. Under V.T.C.A. Penal Code, Section 31.03, theft is defined, for our purposes, as occurring when a person “exercises control over the property, without the owner’s effective consent.”

The indictment in the case at bar, if read in its logical order, alleges that appellant “unlawfully entered a habitation without the effective consent of Robert N. Smith, the said owner, with the intent to exercise control over the property of Robert N. Smith”. Read in this logical fashion, the indictment does not allege that the appellant intended to “exercise control over the property without Robert N. Smith’s consent” which would be necessary to allege theft under V.T.C.A. Penal Code, Section 31.03. See Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975). The intent with which entrance was made is an essential element of the offense of burglary and therefore must be pled and proved. See Lowe v. State, 163 Tex.Cr.R. 578, 294 S.W.2d 394 (1956); Marquis v. Benfer, 298 S.W.2d 601 (Tex.Civ.App. — San Antonio 1956, writ ref’d n. r. e.); Green v. State, 437 S.W.2d 558 (Tex.Cr.App.1969). See also Williams v. State, 505 S.W.2d 838 (Tex.Cr. App.1974); Worthington v. State, 469 S.W.2d 182 (Tex.Cr.App.1971).

The indictment being fundamentally defective, and not alleging an offense against the laws of Texas, same is insufficient to support a conviction, and therefore this conviction is void. See Standley v. State, supra; Ex parte Roberts, supra.

Petitioner’s pro se complaint that the indictment fails to allege a culpable mental state need not be reached at this time since the indictment is fundamentally defective for other reasons.

The petition for writ of habeas corpus is granted, and the indictment in trial court cause number C-74-5617-PK is hereby dismissed, and petitioner is ordered released from custody.

It is ordered.

ODOM, Judge

(concurring).

I concur in the majority’s disposition of this habeas corpus action filed pursuant to Article 11.07, V.A.C.C.P.

Presented for this Court’s consideration is whether the indictment is fundamentally defective. If the indictment fails to allege an offense against the laws of Texas, then it was insufficient to invoke the jurisdiction of the trial court, and the conviction was void and subject to attack at any time. On the other hand, if the indictment is merely duplicitous, fails to give sufficient notice of what acts are charged, or fails to allege sufficient facts to bar a subsequent conviction, then any complaint would be of nonju-risdictional defects, and be deemed waived by the failure to make timely objection. See American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598, 604.

Our attention should therefore be directed to the sufficiency of the indictment to allege an offense against the laws of Texas. Because such a defect, if shown, is jurisdictional in that it goes to the power of the trial court to hear the case and to enter a judgment of conviction against him, it may be asserted at any time.

It is fundamental in our system of government that sovereignty resides in the people and that the State may exercise only those powers given to it by law, and only in the manner and according to the forms authorized by law. Courts may exercise only those powers granted them, and even those powers may be exercised only when the power to act is properly invoked. These principles are stated in many decisions of the high courts of this State, some of which follow.

Chief Justice Cureton, speaking for the Supreme Court of Texas in Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, wrote:

“ ‘Judicial power’ is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S.Ct. 282, 71 L.Ed. 541; 11 Texas Jurisprudence, pp. 711, 712, Sec. 9, and cases cited in the notes.”

“Jurisdiction” refers to the exercise of this power. In Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, Chief Justice Cureton stated this truth thusly:

“Jurisdiction is power to hear and determine the matter in controversy according to established rules of law, and to carry the sentence or judgment of the court into execution. Banton v. Wilson, 4 Tex. 400, 402; Withers v. Patterson, 27 Tex. 491, 496, 86 Am.Dec. 643; Templeton v. Ferguson, 89 Tex. 47, 54, 33 S.W. 329: G. T. & W. Ry. Co. v. Lunn (Tex.Civ.App.), 141 S.W. 538, 541; Corpus Juris vol. 15, pp. 723 to 726; Swift & Co. v. Memphis Cold Storage Warehouse Co., 128 Tenn. 82, 158 S.W. 480, 485.”

The Court of Criminal Appeals, speaking through Judge Davidson in Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482, said, “. . . jurisdiction means the power of the court to hear and to determine the case.”

Necessary to the exercise of its power, a court must secure jurisdiction to do so, which jurisdiction is of three parts. This truth was expressed in Parr v. State, 108 Tex.Cr.R. 551, 1 S.W.2d 892, quoting from Taylor v. State, 81 Tex.Cr.R. 347, 197 S.W. 196, as follows:

“There are three questions, as a general proposition, of jurisdiction: First, of the person; second, of the subject-matter, and, third, the power of the court to render the particular judgment it does render. Without a concurrence of these there can be no legal authority in the court to try the case or render a judgment.”

For additional statements of the meaning of jurisdiction, see Emery v. State, 57 Tex. Cr.R. 423, 123 S.W. 133; Farmers’ Nat. Bank v. Daggett, Tex.Com.App., 2 S.W.2d 834, 839; Ex parte Armstrong, 110 Tex. Cr.R. 362, 8 S.W.2d 674; 16 Tex.Jur .2d, Criminal Law, Sec. 191; 22 C.J.S. Criminal Law § 107.

The requirement of jurisdiction before action is fundamental to our system of government. In State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250, a writ of prohibition to prevent an unlawful exercise of power by the District Court of Willacy County issued after reasoning founded upon the principle, “For a court to act, it must have jurisdiction to do so. This is fundamental. 11 Tex.Jur., Courts, Sec. 9, p. 711; 12 Tex.Jur., Criminal Law, Sec. Ill, p. 385.”

All jurisdictional requirements must be satisfied or the court’s action, other than dismissal, is void. “There are three facts that seem to be absolutely necessary to the jurisdiction of the court or as jurisdictional questions: First, the court must have jurisdiction of the person; second, of the subject-matter; and, third, to render the particular judgment rendered. Otherwise, the prosecution will be void, as also the judgment." (Emphasis added.) Emery v. State, supra. “If the court has no jurisdiction, it should proceed no further with the case other than to dismiss it for want of power to hear and determine the controversy. In such a case, any order or decree entered, other than one of dismissal, is void.” (Emphasis added.) Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex.Civ.App. — Amarillo 1931), affirmed, Tex.Civ.App., 55 S.W.2d 797. “If the trial court was without jurisdiction for any reason, the judgment rendered by it is void . .” State v. Olsen, Tex., 360 S.W.2d 398. “Since the Dallas county district court had no jurisdiction of this particular case, what was done therein was necessarily void, for judicial action without jurisdiction is void.” (Emphasis added.) Cleveland v. Ward, supra, at 1071. See also 15 Tex.Jur.2d, Courts, Sec. 50; 16 Tex.Jur.2d, Criminal Law, Sec. 181.

Because judicial action without jurisdiction is void, it cannot be waived and may be raised at any time. “Although most rights and procedural matters may be waived, jurisdictional matters may not be.” Casias v. State, Tex.Cr.App., 503 S.W.2d 262. “A judgment which is void is conclusive of nothing, and may be the subject of inquiry in a collateral proceeding.” Ex parte Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758. “It is within the power of the parties to a lawsuit to waive simple irregularities affecting their rights; but they cannot waive such matters as jurisdiction in the court to hear and determine their controversies. . .” Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex.Civ.App. — Amarillo, 1931), affirmed, Tex.Civ.App., 55 S.W.2d 797. See also, Farmers’ Nat. Bank v. Daggett, supra; Ex parte Armstrong, supra.

In recent days institutions of government have been the object of criticism for exercising powers they do not possess. It is common knowledge that the courts have not been immune from such criticism. All who exercise powers of government in the name of the people would do well to re-examine the source of such powers. The judiciary might well keep in mind the words of Chief Justice Stayton who in 1888, speaking for the Supreme Court of Texas in Stuart v. Anderson, 70 Tex. 588, 8 S.W. 295, 299, wrote, “The exercise or assumption of a power when a fact necessary to its existence is wanting, is usurpation.”

Prerequisite to the exercise of State power by a court to hear and determine a particular case is the proper invocation of the jurisdiction of that court. “Jurisdiction of a court must be legally invoked; and when not legally invoked, the power to act is as absent as if it did not exist.” State v. Olsen, 360 S.W.2d 398, 400; Ex parte Caldwell, Tex.Cr.R., 383 S.W.2d 587; Newton v. State, Tex.Cr.R., 509 S.W.2d 610, 613. To invoke that power for criminal prosecution, it is required that the State file a written pleading alleging facts that, if proven, would show the commission of an offense against the laws, which offense must be within the subject-matter jurisdiction of the court. See, e. g., Bass v. State, Tex.Cr.App., 427 S.W.2d 624, 626; Ex parte Vasquez, 122 Tex.Cr.R. 475, 56 S.W.2d 190; Bragg v. State, 109 Tex.Cr.R. 632, 6 S.W.2d 365; Parr v. State, 108 Tex.Cr.R. 551, 1 S.W.2d 892; Lott v. State, 18 Tex.App. 627. To prosecute for a felony, prior to enactment of Article 1.141, V.A.C.C.P., jurisdiction could be invoked only by the filing of an indictment. King v. State, Tex.Cr.App., 473 S.W.2d 43, 49. Even with the enactment of that article, it is still essential that the State’s pleading allege facts showing the commission of an offense within the jurisdiction of the court, for without such allegations the court is without power to proceed, and a conviction in such event is void and subject to attack at any time. See, e. g., Woodward v. State, 86 Tex.Cr.R. 632, 218 S.W. 760; Barnes v. State, 79 Tex.Cr.R. 395, 185 S.W. 2; Bass, Vasquez, Bragg, Parr, Lott, all supra.

This review of rules governing the powers of courts is made here in order that it may be clear to all that a jurisdictional defect in an indictment is something wholly different both in origin and in consequences from non-jurisdictional defects such as duplicity or want of sufficient notice. The latter may be waived while the former may not. Cf. Day v. State, Tex.Cr.App., 532 S.W.2d 302, 315, n. 7. In assessing an issue of adequate notice, it is proper to regard the State’s pleading with an eye from the defendant’s position, but in assessing the sufficiency of the State’s pleading to invoke the jurisdiction of the trial court, the allegations must be viewed objectively without regard to the defendant’s perspective, and the acts set out must be measured against the law they are supposed to violate. It is not enough to say that a defendant found the notice adequate, because notice is not at issue. It is the power of the court that is at issue.

It is obvious that the indictment in the case at bar fails to allege- that petitioner entered the habitation “with the intent to commit a felony or theft.” The allegation in the indictment that the petitioner intended to “exercise control over the property” is not sufficient to allege the crime of theft. Under V.T.C.A. Penal Code, Sec. 31.03, theft is defined, for our purposes, as occurring when a person “exercises control over the property, without the owner’s effective consent.”

The indictment being fundamentally defective, and not alleging an offense against the laws of Texas, it was insufficient to invoke the jurisdiction of the trial court and will not support a conviction; and therefore this conviction is void. See Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Ex parte Roberts, Tex.Cr.App., 522 S.W.2d 461.

I therefore concur in granting the relief.

DOUGLAS, Judge

(dissenting).

On June 27, 1974, the applicant was convicted for the offense of burglary of a habitation. He did not appeal. He filed his application for a writ of habeas corpus in the court where he was convicted alleging that the indictment was fundamentally defective because it did not allege a culpable mental state in that it was not alleged that the offense was committed willfully, knowingly or intentionally as provided for in V.T.C.A. Penal Code, Section 6.02(d). The hearing judge concluded that this was waived because no such contention was made during the trial.

Additionally, it is now contended that the indictment is fundamentally defective because there is no allegation that the entry into the building was made “with intent to commit a felony or theft.”

The indictment, omitting the formal parts, is as follows:

“. . . James Earl Cannon hereinafter styled Defendant, on or about the 23 day of April in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner. . . .”

The allegation in the indictment sufficiently alleges that Cannon entered the habitation without the effective consent of the owner. Construing the entire sentence, it also alleges that he intended to exercise control of Smith’s property without consent. This is sufficient under V.T.C.A. Penal Code, Section 31.03, which defines one form of theft as occurring when one “exercises control over the property, without the owner’s consent.” However, this construction is not essential.

The offense is substantially alleged so that an accused is apprised of such offense charged; he cannot in the absence of a motion to quash or an exception to the pleading raise the question by a collateral attack upon the pleading. See American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). In the present case, one reading the indictment can see that the offense charged is that of entering a habitation without the owner’s consent and with the intent to exercise control of the owner’s property.

The pro se contention of Cannon that the indictment is fundamentally defective because no culpable mental state is alleged should be overruled for the same reasons discussed above. The indictment substantially charges him with the offense of burglary with intent to commit theft. He has not complained to this date that he did not know what he was charged with or that he did not have sufficient notice under the indictment so that he could prepare his defense. Absent a timely exception or motion to quash the indictment, the matter should not now be considered. See American Plant Food Corporation v. State, supra, and Vaughn v. State, 530 S.W.2d 558 (Tex.Cr.App.1975).

The relief sought should be denied.

OPINION ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission we held that the burglary indictment in this case was fundamentally defective. The indictment, which is set out in the majority opinion on original submission, failed to allege that the entry was made with the intent to commit a felony or theft, a necessary element of the offense of burglary under V.T.C.A., Penal Code, Sec. 30.02(a)(1) or (a)(2). Faulks v. State, 528 S.W.2d 607 (Tex.Cr.App.1975).

We again set out the indictment, as follows:

“IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jurors, good and lawful men of the County of Dallas, duly elected, tried, empaneled sworn and charged to inquire of offenses committed within the body of said Dallas County, upon their oaths do present in and to the 203RD JUDICIAL District Court,_of Dallas, County, at the JANUARY Term, A.D., 1974, that one,
JAMES EARL CANNON
hereinafter styled Defendant, on or about the 23 day of April, in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.”

Of course, an indictment for burglary need not allege that the entry was with the intent to commit theft or a named felony, provided that it alleges instead the elements of the felony or theft in the indictment. See Williams v. State, 505 S.W.2d 838 (Tex.Cr.App.1974); Mitchell v. State, 118 Tex.Cr.R. 77, 37 S.W.2d 1018 (1931). Similarly, it is not necessary to allege the elements of the felony or theft if the indictment states simply that the entry was with the intent to commit theft or a specifically named felony. Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975); Vaughn v. State, 530 S.W.2d 558, 562 (Tex.Cr.App.1976) (majority and dissenting opinions).

Since the indictment in this case does not allege that the entry was made with the intent to commit a named felony or theft, the question then becomes whether it sets out the necessary elements of a felony or of theft.

A comparison of the indictment to our theft statute (V.T.C.A., Penal Code, Sec. 31.03) leads to the conclusion that the indictment in this case was an attempt to allege burglary with intent to commit theft, as theft is defined in V.T.C.A., Penal Code, Sec. 31.03(a)(2). Section 31.03 provides in pertinent part as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:
(1) he obtains the property unlawfully; or
(2) he exercises control over the property, other than real property, unlawfully.
(b) Obtaining or exercising control over property is unlawful if:
(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

Our new Penal Code consolidated virtually all theft offenses into a single offense. Section 31.02 of the new Code provides for this consolidation, while subsections (a) and (b) of Section 31.03 define the different ways theft may be committed. A reading of these provisions of Section 31.03 makes it dear that there are four ways to commit theft: (1) by obtaining property without the owner’s effective consent under subsections (a)(1) and (b)(1); (2) by obtaining property from another knowing it to be stolen under subsections (a)(1) and (b)(2); (3) by exercising control over property, other than real property, without the owner’s effective consent under subsections (a)(2) and (b)(1); and (4) by exercising control over property, other than real property, obtained by another, knowing it to be stolen under subsections (a)(2) and (b)(2).

Thus, the offense of theft has four different sets of possible elements:

(1) a person
(2) with intent to deprive the owner of property
\o) obtains the property
(4)without the owner’s effective consent;

or

(1) a person
(2) with intent to deprive the owner of property
(3) obtains the property
(4) which is stolen property
(5) from another
(6) knowing it was stolen;

or

(1) a person
(2) with intent to deprive the owner of property
(3) exercises control over the property, other than real property
(4) without the owner’s effective consent;

or

(1) a person
(2) with intent to deprive the owner of property
(3) exercises control over the property, other than real property
(4) which is stolen property
(5) obtained by another
(6) knowing it was stolen.

An indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective, since “Everything should be stated in an indictment which is necessary to be proved.” Art. 21.03, Vernon’s Ann.C.C.P. See also Art. 21.11, V.A.C.C.P., and the authorities cited in the majority and concurring opinions on original submission. It follows that an indictment for burglary with intent to commit theft which fails to state specifically that the entry was with such intent must allege all of the elements of one of these means of committing theft.

The indictment in this case fails to allege an element necessary to every theft allegation: That the appellant acted “with intent to deprive the owner of property.” Without this element the indictment is fundamentally defective under our new Penal Code, and the trial court was without power to proceed to trial. See the majority and concurring opinions on original submission, as well as Art. 21.05, Vernon’s Ann.C.C.P.; see also Martini v. State, 116 Tex.Cr.R. 58, 32 S.W.2d 654 (1930); Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988 (1935); McCann v. State, 168 Tex.Cr.R. 383, 328 S.W.2d 298 (1959); Worthington v. State, 469 S.W.2d 182 (Tex.Cr.App.1971).

The indictment is also fundamentally defective because it fails to allege how the intended taking was unlawful. As we held on original submission, it does not allege that the intended exercise of control was without the owner’s effective consent, V.T. C.A., Penal Code, Sec. 31.03(b)(1), and it is not enough to allege that the entry was without such consent. As this Court said in Musick v. State, 121 Tex.Cr.R. 616, 618, 51 S.W.2d 715, 716 (1932):

“It is elementary, as well as statutory, that the essential element of theft is that the property be taken not only fraudulently but without the consent of the owner, with the intent to deprive the owner of the value and appropriate the property to the benefit of the taker . In Wharton’s Crim. Law (11th Ed.) vol. 2, p. 1311, Sec. 1094, it is said that the definition of larceny which omits ‘without the consent of the owner’ is now universally conceded to be defective.” (Emphasis added).

We recently reaffirmed this rule in Martinez v. State, 494 S.W.2d 182 (Tex.Cr.App.1973), and see no reason why it should not apply to our new Penal Code. The indictment before us, plainly read, did allege that the entry was without the owner’s effective consent, see V.T.C.A., Penal Code, Sec. 30.-02(a), but failed to allege that the intended exercise of control was without the owner’s consent.

Nor did the indictment allege that the property was stolen or that the appellant knew the property was stolen. Moreover, the indictment did not allege either that the appellant obtained the property from another or that he exercised control over the property, other than real property, obtained by another. These are essential elements of theft under subsection (b)(2), see Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975), and are required to be alleged in an indictment alleging either of the methods of committing theft under this subsection. Art. 21.03, supra.

Since the indictment failed to allege either method of unlawful taking under V.T. C.A., Penal Code, Sec. 31.03(b), it is fundamentally defective. Nor can we agree that the use of the general term “unlawfully” was sufficient to overcome the deficiency. See V.T.C.A., Penal Code, Sec. 1.07(a)(36), and Ham v. State, 118 Tex.Cr.R. 271, 40 S.W.2d 152 (1931).

The State’s motion for rehearing is overruled.

DOUGLAS, Judge

(dissenting).

The majority holds the indictment to be fundamentally defective because it did not allege that the burglary was with the intent to commit a named felony or theft.

Cannon entered a plea of guilty to the offense of burglary in the present case. According to his application for habeas corpus he also entered a plea of guilty to another offense of burglary. When this cause was set for submission he did not contend that the elements of theft were not alleged. He contended that no culpable mental state was alleged. His lawyer knew what he was charged with. There was no motion to quash the indictment. No appeal was taken and, therefore, it was not mentioned in an appellate brief so that the trial judge could pass upon any errors committed and grant a new trial to prevent a useless appeal. The rule adopted by the majority gives a defendant a free ride. If the jury finds one not guilty, he no doubt would be free. If the proof shows him to be guilty, he gets a new trial if the question is raised in an application for habeas corpus or, as in the present case, even if it is not raised. The indictment alleges that Cannon “. . . did unlawfully then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.” (Emphasis Supplied)

The indictment alleges the burglary and, in substance, it was done with the intent to commit theft. V.T.C.A., Penal Code, Section 31.03, Theft, provides, in part, as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:
a * * *
“(2) he exercises control of the property." (Emphasis Supplied)

The indictment alleged that Cannon unlawfully entered the habitation with intent to exercise control of the property of Smith without the owner’s effective consent. The indictment alleged without the owner’s effective consent. When someone enters a habitation without the owner’s consent with the intent to unlawfully exercise control of the property, this alleges enough to show an intention to commit theft under the statute.

In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1975), it was contended that a burglary indictment did not allege that the act was knowingly and intentionally done. The indictment alleged in part that “. Teniente did then and there with intent to commit theft, enter a habitation without the effective consent of Carlos Reyna, the owner.” This Court noted that the gist of the offense of burglary was entry of the habitation with the requisite intent and upheld the indictment.

In Vaughn v. State, 530 S.W.Sd 558 (Tex.Cr.App.1975), this Court held that it was sufficient for an indictment to allege that entry was made with the intent to commit the felony “injury to a child.” This indictment is less specific than the one in the present case.

The opinion by the majority on original submission would make it a mandatory requirement to allege without the owner’s consent twice, that is, (1) unlawfully enter a building without the owner’s consent, and (2) without the owner’s consent exercise control of the property. The reading of just the one sentence in the indictment as a whole shows that the entry of the building as well as the intent to take the property was without the owner’s consent.

The Legislature might be interested in passing an act so that the intent of the new penal code could be carried out. A rule that where an indictment or information substantially charges an offense, or it can be ascertained what offense is charged, the pleading cannot be attacked on appeal or by habeas corpus, such an attack must be made in a motion to quash or in an exception to the pleading.

There can be no justification for the rule that, where one pleads guilty to a known offense and the proof shows him guilty and he is serving the sentence, he should be released and the prosecution dismissed on the ground that an element of the offense is not stated in an indictment or information. This is especially true where counsel knew what the defendant was charged with.

Compare this to the rule of this Court that when one who has been convicted for an offense cannot be released by habeas corpus if the evidence offered at the trial is insufficient to support the conviction provided some evidence has been introduced at the trial. See Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1973), and Ex parte Ash, 514 S.W.2d 762 (Tex.Cr.App.1974). In such an instance there is a possibility that some harm existed.

Sometime before the current holdings by the majority, a different but a better rule existed. In Merriell v. State, 163 Tex.Cr.R. 534, 294 S.W.2d 400 (1956), this Court wrote:

“There being a valid law under which a sufficient complaint and information could have been drawn for the act of obtaining property with intent to injure and defraud by the giving of the check, draft or order set out in the information, any irregular or insufficient averment of facts would not entitle appellant to relief by habeas corpus.”

In Ex parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (1961), we find:

“ ‘This court takes no note of the form of the complaint, but in habeas corpus proceedings of this character will go no further than to determine whether the arrest or conviction is supported by a law under which a valid complaint may be drawn. See Ex parte Cox, 53 Tex.Cr.R. 240, 109 S.W. 369; Ex parte Jennings, 76 Tex.Cr.R. 116, 172 S.W. 1143; Ex parte Rogers, 83 Tex.Cr.R. 152, 201 S.W. 1157; Ex parte Roquemore, 60 Tex.Cr.R. 282, 131 S.W. 1101, 32 L.R.A. (N.S.) 1101 [1186]; Ex parte McKay, 82 Tex.Cr.R. 221, 199 S.W. 637; Ex parte Garcia, 90 Tex.Cr.R. 287, 234 S.W. 892.’ ”

Judge Roberts got this Court on the right track, at least temporarily, when he wrote in a habeas corpus proceeding about an attack on an indictment which did not allege the extent of the injury in a wilful injuring personal property case as follows:

. .we are of the opinion that appellant has clearly waived his right to challenge a defective indictment. There is no claim that appellant was denied adequate notice of the charges against him, that his plea was involuntary or without sufficient understanding, or that the improper wording of the indictment violated any of petitioner’s rights to due process or equal protection of the law. We do not feel constrained to reverse the conviction on habeas corpus merely because of the improper wording of an indictment, without a showing that the petitioner therein was harmed thereby. . ” Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1973).

We would do well to follow that rule which has been overruled.

The majority misconstrues the opinion by Presiding Judge Woodley in Ex parte Miller, 172 Tex.Cr.R. 590, 360 S.W.2d 879 (1962). There, the complaint only alleged that the defendant “did then and there unlawfully and wilfully Pass — insufficient Clearance against the peace and dignity of the State.” So there will be no argument, the holding is quoted as follows:

“We hold that where, as here, no facts are alleged in the complaint which, if true, constitute an offense, and no such facts are alleged which show what offense was meant to be charged, a final conviction under such complaint is void and may be attacked by habeas corpus.” (Emphasis Supplied).

That part of the opinion would make a good rule for construction to be adopted by the Legislature. If facts are alleged to show what offense was meant, a pleading should not be set aside after a convict has started serving time and later thinks, or this Court thinks for him, that he did not know what offense was meant to be charged.

It has got to the point that the majority of the Court has added an element to the offense of robbery not required in the statute and sets aside convictions on habeas corpus when the matter has not been alleged in habeas corpus proceedings. See Ex parte Banks, Tex.Cr.App., 542 S.W.2d 183 (1976), and the dissenting opinion. Now this added element of ownership has to be alleged according to the majority even though such ownership does not have to be proved under Clark v. State, 527 S.W.2d 527 (Tex.Cr.App.1975).

Any argument that an indictment or information has to be more specific so that it can be pled for the purpose of former acquittal or conviction is without merit. One claiming former acquittal or conviction may assert and prove facts which show the identity of the offense although this may not appear on the face of the indictment or information or in the recitals of the judgment. Buchanan v. State, 506 S.W.2d 236 (Tex.Cr.App.1974); Luna v. State, 493 S.W.2d 854 (Tex.Cr.App.1973). The question of double jeopardy does not have to be raised on appeal. This Court will apply the rule even though there has been no such plea or objection during the trial. See Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970).

There is no better time than the present to stop the setting aside of convictions when the defendants have not been harmed or misled. There are other cases now pending before the Court that will have to be reversed and the prosecution ordered dismissed because of the ruling by the majority. See the dissenting opinion in Reynolds v. State, 547 S.W.2d 590 (1976). Hundreds of cases will be reversed and prosecutions ordered dismissed in the future because of these cases. A dissent will not be filed in each case even though, in my opinion, they will be incorrect.

The relief sought should be denied.

      . We again observe that the better practice is to set forth the constituent elements of the intended felony or theft. See Faulks v. State, 528 S.W.2d 607, 609, n. 1 (Tex.Cr.App.1975).

      . We observe that subsections (a) and (b) of Section 31.03 were amended by Acts 1975, 64th Leg., p. 914, ch. 342, Sec. 10, eff. Sept. 1, 1975, as follows:
      “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
      “(b) Appropriation of property is unlawful if: (1) it is without the owner’s effective consent; or
      (2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”

      . Compare Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976); delivered November 3, 1976; 2 TCR 57.

      . The dissent’s reliance upon Ex Parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1974), is misplaced. This writer wrote for a unanimous Court that although the indictment was “fatally” defective, it was not “void ab initio.” The writer concedes that use of the word “fatally” was not precisely correct; ordinarily, an indictment which is fatally defective is “fundamentally” defective, or void from the outset, and can be attacked at any time. This was not true in Roberts. However, the meaning of Roberts should be clear: An indictment which is defective but not fundamentally so cannot be attacked by means of habeas corpus. Unlike the indictment in Roberts, the indictment in this case utterly fails to allege an offense, is therefore fundamentally defective, and may be attacked on habeas corpus.
      The dissent also relies upon Ex Parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (1961), and Ex Parte Merriell, 163 Tex.Cr.R. 534, 294 S.W.2d 400 (1956). Those cases are distinguishable for the reasons stated so cogently by the late Presiding Judge Woodley in Ex Parte Miller, 172 Tex.Cr.R. 590, 360 S.W.2d 879 (1962). There the Court unanimously held that where a charging instrument is void (rather than merely voidable), it may be attacked by habeas corpus. See also American Plant Food Corp. v. State, 508 S.W.2d 598, 603 (Tex.Cr.App.1974).


source: Caselaw Access Project

author: ROBERTS, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Leon AARON, Appellant, v. The STATE of Texas, Appellee.
    No. 51044.
    Court of Criminal Appeals of Texas.
    June 16, 1976.
    Dissenting Opinion On State’s Motion for Rehearing Feb. 16, 1977.

      Ramie H. Griffin, Jr. (on appeal only), Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and Lawrence E. Thorne, III, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of burglary (habitual). Trial was before a jury and the jury, having found appellant guilty of burglary and of having been twice previously convicted of felonies less than capital, assessed his punishment at life in prison. The primary offense took place on February 17, 1973 and trial commenced on July 8, 1974.

All of appellant’s grounds of error are directed toward the Louisiana penitentiary packet introduced to prove the first enhancement count of the indictment.

Appellant first complains that the “pen packet” is not properly certified under Art. 3731a, Sec. 4, V.A.C.S., since it is attested to by the Secretary of State of Louisiana and not by a “judge of a court of record of the district or political subdivision in which the record is kept.” Section 4 of Art. 3731a makes it clear that certification of such papers by a judge is permitted, but is by no means mandatory. It also provides, “Such writings . . . may be evidenced ... by a copy . attested by the officer having the legal custody of the record . . . .” In this case, the Louisiana Secretary of State certified to the identity of the warden and the records clerk of the Louisiana State Penitentiary. The records clerk certified that he was the legal custodian of the records and that the copies admitted at trial were true and exact copies. We find that the pen packet was properly certified for admission as evidence. Cf. Morgan v. State, Tex.Cr.App., 532 S.W.2d 85 (1976).

Appellant makes a more serious attack on the admission of three letters in the pen packet which alluded to convictions other than that for which the packet was offered. One such letter, dated May 21,1961, recited that appellant had been convicted and sentenced on three separate thefts or burglaries, none of which was the conviction alleged in the indictment for enhancement. The other two letters, dated January 23, 1962, relate to the prior conviction alleged, but add that appellant’s three-year sentence thereon was to run consecutively with the remainder of the sentence from which he was paroled. This is an obvious reference to the concurrent sentences for burglary or theft that appellant had received the year before.

These extraneous convictions were not alleged for enhancement in the indictment. Yet they are proper subjects for proof at the punishment stage of the trial under Art. 37.07, V.A.C.C.P. Burton v. State, 493 S.W.2d 837 (Tex.Cr.App.1973). However, proof of such convictions cannot be satisfied by mere references thereto contained in letters in appellant’s pen packet. A conviction in Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973) was reversed because the defendant’s pen packet, which was introduced at his trial to prove his prior record under Art. 37.07, included an instrument containing the details of the Arkansas convictions for which the packet was offered, an extraneous offense, and two California offenses, only one of which appeared to have resulted in a conviction. Since Art. 37.07 limits the proof at the punishment stage to prior final convictions, admission of evidence of the details of the offenses and of other, non-final convictions was reversible error. See also Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973); Sherman v. State, 537 S.W.2d 262 (1976). Likewise, the record in the instant case does not support the conclusion that the offenses to which the letters referred were final convictions.

The pen packet also contained certified copies of the informations and the sentences for the three extraneous offenses. Although these documents were all attested to on the same date, the informations show no cause numbers to correspond to those on the sentences. Moreover, the bills of information charge three separate burglary offenses, but the minutes of the court show the three sentences to be for theft offenses. A variance such as this would render a Texas conviction void. Thomas v. State, 525 S.W.2d 172 (Tex.Cr.App.1975); Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1941); Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228 (1953); Ex parte Dies, 160 Tex.Cr.R. 468, 272 S.W.2d 373 (1954). Finally, the pen packet contains no judgments upon which sentences for the three offenses can be based. “The absence of a judgment invalidates a sentence, and without a sentence no final conviction has resulted from the trial.” Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974). A conviction that is not final cannot be used at the punishment stage of a trial under Art. 37.07, Sec. 3(a), Y.A.C.C.P. Morgan v. State, supra.

The pen packet introduced to establish the convictions used for enhancement also contained evidence of extraneous offenses not shown to be valid final convictions. The error cannot be characterized as harmless. Sherman v. State, supra. The judgment of the trial court will be reversed and the cause remanded.

In the event of a retrial, we call attention to another fatal variance. The indictment charged appellant with having previously been convicted of “attempted burglary” in Cause No. 17686 on January 22,1962 in the Tenth Judicial District Court of Natchitoches Parish, Louisiana. The sentence shown for the prior conviction was for “simple burglary.” In addition to the need for a judgment of conviction for the offense, discussed above, the allegations and proof would appear to reflect a fatal variance.

For the foregoing reasons, the judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting on Motion for Rehearing.

A majority of the Court overrules the State’s motion for rehearing without written opinion even though the proof shows that appellant was properly assessed punishment at life as an habitual criminal and no reversible error is shown. The majority does not give full faith and credit to a Louisiana conviction.

The opinion on original submission holds that a prior Louisiana conviction could not be used for enhancement because appellant was charged with “attempted burglary” and was convicted for simple burglary. This is done even though the sentence shows he was convicted for the offense as charged which was attempted burglary. It also holds that it was reversible error at the penalty stage of the trial to admit into evidence parts of the Louisiana prison records.

Two prior convictions for felonies less than capital were alleged and proved. The Texas prior conviction was admitted without objection.

The information alleging the prior Louisiana conviction in question is as follows:

“The said Leon Aaron on the 22nd day of January, A.D., 1962, was duly and legally convicted of the offense of Attempted Burglary, a felony, in the Tenth Judicial District Court of the Parish of Natchitoches, State of Louisiana, in Cause No. 17686 on the docket of said court, styled The State of Louisiana vs. Leon Aaron, and which said court had jurisdiction of said offense of Attempted Burglary, a felony.”

From the records from the Louisiana State Penitentiary, a certified copy of the sentence is as follows:

“17686 State of Louisiana -vs- Leon Aaron (CM; Age 18) (Simple Burglary). Now comes the State through the District Attorney and comes the defendant in custody of the Sheriff and accompanied by counsel, Mr. W. Peyton Cunningham, Jr. The defendant through counsel announced to the Court that he withdraws his former plea of Not Guilty and now enters a plea of Guilty as charged; whereupon the Court ordered that the plea be changed and entered. It was thereupon ordered by the Court and it is the judgment and sentence of the Court that the defendant be remanded to the custody of the Sheriff and by him safely kept until such time as he can be transported to the State Penitentiary at Angola, Louisiana and there delivered to the Warden or Superintendent of said Penitentiary and by him confined therein at hard labor for a period of Three (3) years and let this sentence run consecutively with the sentence he is now on parole from.
“Whereupon District Court adjourned until January 23rd, 1962 at 10:00 o’clock A.M.
Approved January 25, 1962
/s/ L. P. Stephens
L. P. Stephens
Judge, 10th D.C.La.”
(emphasis added)

The sentence recites that he entered a plea of guilty as charged. Apparently the statement “(Simple Burglary)” is a clerical error. See Ex parte Strey, 28 S.W. 811, (Tex.Cr.App., 1894). It is at least such an error that could be reformed on appeal in Texas under Article 44.24, V.A.C.C.P. When a judgment could have been reformed on appeal or by nunc pro tunc proceedings it cannot be attacked collaterally on a subsequent appeal if it has been used for enhancement purposes. See Hughes v. State, 493 S.W.2d 166 (Tex.Cr.App.1973).

It is presumed that the law of Louisiana is the same as Texas. Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976); Watts v. State, 430 S.W.2d 200 (Tex.Cr.App.1968); Melancon v. State, 367 S.W.2d 690 (Tex.Cr.App.1963). Absent proof that the law is otherwise, the judgment could have been reformed in Louisiana. See McCormick and Ray, Evidence, Section 99, page 131, and pocket parts therein.

The majority should follow the time honored rule and hold that the Louisiana law is presumed to be the same as Texas law concerning reformations of sentences where the record definitely shows that he was convicted as charged which was done in this case.

In Skaggs v. State, 167 Tex.Cr.R. 254, 319 S.W.2d 310 (1958), the conviction was for the subsequent offense of driving a motor vehicle upon a public road while intoxicated. The judgment in the prior misdemean- or conviction did not name the offense, but it did reflect that the defendant was found guilty as charged. This Court held that the judgment read in connection with the information sufficiently showed the offense for which the accused was convicted.

When this Court has the necessary information before it for reformation, the sentence appealed from may be reformed on appeal. Lee v. State, 516 S.W.2d 151 (Tex.Cr.App.1974); Johnson v. State, 478 S.W.2d 442 (Tex.Cr.App.1972); Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972).

As far back as 1884, in Ex parte Strey, supra, this Court refused Strey’s application for writ of habeas corpus wherein it was alleged that the indictment had charged him with the offense of “attempt at arson” but the sentence showed that he had been sentenced for the offense of “arson.” The Court held this to be either . . a mistake of the judge or the clerk in writing up the sentence, . . . ” and stated that such error could be corrected since it could readily be determined from the record the offense for which he was convicted and sent it back to the trial court for correction.

Then, in Robison v. State, 68 Tex.Cr.R. 115, 150 S.W. 912 (1912), the judgment on appeal stated that Robison had been convicted of murder in the first degree and his punishment assessed at life imprisonment. In affirming his conviction, the Court conformed the judgment to the verdict of the jury, death, holding “. . . this court will enter the proper judgment — that is, one that should have been entered in the court below — and the clerk will write up the judgment in this court conforming it to the verdict of the jury, which was the death penalty. The statute in this state authorizes this court to correct and reform judgments.” Likewise, in Ragusin v. State, 105 Tex.Cr.R. 218, 288 S.W. 209 (1926), the Court reformed the judgment wherein it was stated that the defendant had been convicted for a “violation of the liquor law”, there being no such offense known to the laws of the state, to read “selling intoxicating liquor” as charged in the indictment. The verdict of the jury found the defendant guilty as charged. See also Harris v. State, 121 Tex.Cr.R. 177, 53 S.W.2d 48 (1932), and the discussion by Judge Lattimore on motion for rehearing.

Other examples of reformation by this Court include Sanders v. State, 145 Tex.Cr.R. 534, 170 S.W.2d 477 (1943), wherein Sanders had been charged by indictment with “theft of property of more than the value of $50.00” and the jury found him guilty as charged, but the judgment and sentence referred to the offense as “burglary.” The Court reformed them to read “theft of property of more than the value of $50.00” and affirmed. In Childress v. State, 268 S.W.2d 201 (Tex.Cr.App.1954), a judgment for “unlawfully transporting of intoxicating liquor” was reformed to “unlawful possession of intoxicating liquor.” In Yeagin v. State, 400 S.W.2d 914 (Tex.Cr.App.1966), “robbery by firearms” was reformed to “robbery”, and in Rainey v. State, 401 S.W.2d 606 (Tex.Cr.App.1966), the judgment read “forgery” and based on the record before this Court was reformed to read “assault with intent to rob.” See also Castaneda v. State, 491 S.W.2d 885 (Tex.Cr.App.1973), where judgment and sentence read “burglary with intent to commit theft” was reformed to read “burglary of a private residence at nighttime with intent to commit theft.” Harris v. State, 471 S.W.2d 390 (Tex.Cr.App.1971), involved the reformation of “guilty of the offense of burglary with intent to commit theft” to “attempted burglary.” In Antwine v. State, 518 S.W.2d 830 (Tex.Cr.App.1975), the sentences stated that the convictions were for the offense of rape and we reformed them to read “burglary of a habitation” as stated in the judgments. In Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976), we held the proof insufficient to sustain a conviction for “burglary of a habitation” and based on the evidence in the record before us reformed the judgment to read “burglary of a building.”

This Court has held in many more cases that a sentence or judgment can be reformed. The majority has not answered the discussion of the presumption set out above and why it does not apply in this case.

The majority is, in effect, saying we can make our sentences speak the truth and show for what offense a defendant has been convicted and that Louisiana cannot. What is happening to our presumption of law doctrine? What is the majority doing to the doctrine that Texas should give full faith and credit to judgments of another state especially where such judgment or sentence would be good in Texas? See Bennett v. State, 476 S.W.2d 281 (Tex.Cr.App.1972), where Bennett attacked an Oklahoma judgment and this Court gave it full faith and credit in a revocation of probation proceeding.

The majority holds that the State did not show that the complained of conviction was final. When the certified copy of the sentence was introduced, there was a prima facie showing that it was final. In the present case the sentence was made part of the Louisiana prison packet and it referred to the judgment. The certificate from the clerk recited that only the sentence was included.

If the conviction had been set aside the burden was on appellant to show that fact. Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App.1975); Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974); Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973); Gardner v. State, 486 S.W.2d 805 (Tex.Cr.App.1972); Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App.1971); Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997 (1934). In this case appellant has failed to meet that burden.

The majority’s holding to the effect that a judgment must be included in the record to prove a conviction is incorrect. In Jones v. State, 449 S.W.2d 277 (Tex.Cr.App.1970), only the sentence, which referred to the judgment, was introduced. Jones contended that the judgment had to be introduced to prove the final conviction. Judge Onion wrote:

“In the absence of a showing to the contrary it is to be presumed that the sentence was based upon a judgment and the court acted in accordance with the law. . . . ”

The Court noted that it would be a better practice to obtain and introduce a certified copy of the judgment.

Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974), cited by the majority, does not hold that a judgment must be introduced to prove a prior conviction. It holds that a verdict alone is insufficient by itself to establish proof of a prior conviction. A statement is made in that case that there must be a judgment before a sentence is pronounced. It does not overrule Jones v. State, 449 S.W.2d 277 (Tex.Cr.App.1970), which holds that a judgment does not have to be introduced.

We should hold that the proof is sufficient to show a final conviction for attempted burglary.

Sherman v. State, 537 S.W.2d 262 (Tex.Cr.App.1976), and Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973), relied upon by the majority, are not in point. Sherman was not a case where prior convictions were used for enhancement. The Court held that the admission of an extraneous offense not amounting to final judgments at the punishment stage constituted reversible error.

In the present case, if an extraneous offense of parole violation is shown, no reversible error is shown because a mandatory assessment of life was required when the jury found two prior convictions alleged for enhancement. There was no mandatory punishment required in the Sherman case.

Likewise, Mullins did not involve a mandatory life penalty situation. There, the conviction was reversed because defendant’s pen packet contained the details of the Arkansas convictions for which the packet was offered, an extraneous offense, and two California offenses, only one of which appeared to have resulted in a final conviction. The error was considered prejudicial because the jury, although not required to, assessed defendant’s punishment at life.

In the present case the jury had no alternative but to find appellant was the person previously convicted as alleged in the indictment from the records and his photographs and fingerprints. The extraneous matter was harmless beyond a reasonable doubt. In Ex parte Scott, 485 S.W.2d 921 (Tex.Cr.App.1972), Judge Odom wrote:

“. . . [A]n invalid prior conviction can be disregarded as surplusage in a case where it had no effect on the decision as to the punishment to be assessed. See, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gerberding v. Swenson, 435 F.2d 368 (8th Cir. 1970).”

That reasoning applies to the present case.

No reversible error has been shown. The State’s motion for rehearing should be granted and the judgment affirmed.

      . If any member of the majority could have the mistaken belief that the presumption that laws of another state are the same as that of Texas applies only to substantive law, he only has to look to the application of such use of a presumption on procedural matter in cases set out ' below.

        Ex parte Parker, 390 S.W.2d 774 (Tex.Cr.App.1965), held that in absence of proof that law of Kansas permitted prosecution of offense of burglary and larceny by information, it would be assumed that prosecution for such offense upon information was not authorized, and therefore extradition to Kansas to answer such charge by information would not be granted. For holdings to the same effect see Ex parte Drennan, 417 S.W.2d 177 (Tex.Cr.App., Washington, 1967); Ex parte Ivy, 419 S.W.2d 862 (Tex.Cr.App., Washington, 1967), and Ex parte Krarup, 422 S.W.2d 173 (Tex.Cr.App., California, 1967).
      (The law has been changed in Texas so that most of the felony cases can be prosecuted by information. Article 1.141, V.A.C.C.P.)


author: BROWN, Commissioner. ROBERTS, Judge, PHILLIPS, Judge,

text:
    Jerry M. DUFF and Derrell M. Pendley, Appellants, v. The STATE of Texas, Appellee.
    No. 51681.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      Cameron M. Cunningham and Stephen W. Russell, Austin, for appellants.
    Robert 0. Smith, Dist. Atty., Stephen Ca-pelle, Asst. Dist. Atty., Austin, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ON APPELLANTS’ MOTION FOR REHEARING

BROWN, Commissioner.

Our prior opinion is withdrawn.

These are appeals from convictions for possession of marihuana. Appellants waived the right to a trial by jury and were tried before the court. Punishment was assessed at five years in the Texas Department of Corrections for appellant Duff and two years for appellant Pendley. Imposition of sentence was suspended and both appellants were placed on probation.

In addition to contesting the legality of the search of their automobile revealing the marihuana, appellant Pendley challenges the sufficiency of the evidence to show that he possessed the marihuana.

At the hearing on the motion to suppress, Officer Schmidt testified that he was parked in his marked patrol car at the corner of Airport Boulevard and 12th Street in Austin around noon on Sunday, January 7,1975. He stated that his car was facing south and that he saw appellants’ vehicle approach the traffic signal at Airport and 12th. The car was traveling north and Schmidt could not state whether or not it stopped for the traffic signal. Schmidt said that he turned his patrol car around and quickly accelerated to follow the car because “it seemed to be speeding.” He said that he clocked the car with his own speedometer at 51 MPH in the 1400 block of Airport Blvd. where the speed limit is 45 MPH. He followed the car to the intersection of 19th Street and Airport where it turned right and proceeded east on 19th Street. He stopped the car using his red lights in the 4400 block of East 19th Street, approximately 1 mile from the Airport Blvd. intersection.

Schmidt further testified that when he stopped the car appellant Duff, the driver, got out of the car and came back toward the patrol car. Schmidt said that he told Duff to get in the patrol ear and then told him why he had been stopped and then asked for his identification. He stated that he inquired about Duff’s passenger and that Duff responded that the passenger’s name was Pendley and that he had come to Austin from Corpus Christi with him that day. Schmidt said that he then approached the car on the driver’s side to speak with Pend-ley and to request identification. He said that Pendley told him he was a hitchhiker whom Duff had picked up about five minutes earlier just outside of Austin. Schmidt said he then went around to the passenger side of the vehicle and asked Pendley to get out of the car. He said that he did this because he detected the “very strong odor of marihuana” and because he saw “a large amount of marihuana seeds laying on the front . . . floorboard.” He said that he then put Pendley in the custody of another officer and conducted a search of the car. (It is not clear whether the other officer was a partner with Schmidt in his patrol car or if he responded to a radio request from Schmidt.) Schmidt said that he found about thirty (30) pounds of marihuana in a large box in the back seat of the car. He said that the marihuana was in a garbage bag which was partially torn and placed in the box which was sealed with tape. Duff and Pendley were transported to jail where Schmidt said that a search of Duff revealed a pipe containing marihuana residue. Schmidt said that he issued Duff a warning ticket for speeding after he had been taken to jail.

It was further developed in Schmidt’s testimony that he recognized the odor of the marihuana from his police academy training and from having smelled it “20 or 30 times.” He stated that there was no difference between the odor of unburned marihuana and marihuana smoke and that there was no evidence in the car that marihuana had recently been smoked; that is, there were no “roaches” or ashes that he could see.

Officer Rodman testified that he searched the vehicle at the police station and that he found another large quantity of marihuana packaged in burlap bags in the trunk of the car. He stated that there was a suitcase in the trunk which also contained marihuana seeds, residue and papers. However, Rodman stated that his search of the front floorboard of the ear revealed no marihuana seeds, but only a large amount of trash, such as cans, bottles and paper.

Appellant Duff testified that he saw Schmidt’s patrol car parked at the 19th Street intersection of Airport Blvd. and not at 12th Street. He stated that when the officer stopped him that he got out of his car and walked back and met Schmidt halfway and that Schmidt asked him if he had a gun and then told him to get into the patrol car. Duff recalled no mention of speeding, but said that Schmidt went immediately to his car and questioned Pendley and that he then radioed for help. Duff stated that Schmidt issued no warning ticket to him at any time. He also stated that there were no marihuana seeds on the front floorboard, but that it was covered by a mat. Pendley did not testify.

Appellant’s first four grounds of error all deal with the legality of the search of the automobile and will be discussed together. In addition to contending that the initial stop of the car was a pretext for the search, appellant maintains that even if the initial stop was justified, Officer Schmidt exceeded his authority by approaching the vehicle and, subsequently, conducting a search,

We are in accord with appellant’s recitation of the law supporting a citizen’s right to travel on the public roads without unreasonable interference and limiting the extent to which an officer can detain citizens in his efforts to curtail crime. We cannot agree, however, with appellant’s contention that Officer Schmidt could not approach his car because “the purpose for which (he) allegedly stopped appellant Duff’s vehicle . . . was completely accomplished at the time he chose to approach the passenger.” In support of this contention, appellant relies on Willett v. State, 454 S.W.2d 398 (Tex.Cr.App.1970) and Murphy v. State, 378 S.W.2d 73 (Tex.Cr.App.1964). Neither case is directly applicable to the instant case.

In Willett, the officer pulled in behind the defendant’s vehicle after it turned into a private driveway without signaling a right turn. He then placed the defendant and the other occupants of the car into his patrol car and drove off to another location where he checked their identification by telephone. We held there were no facts and circumstances which would justify detaining the defendant and requiring him tó get in the patrol car and accompany the officer to another location.

In Murphy, the accused was a passenger in a car which the officer stopped because of a traffic violation. The officer asked her a question (which was not specified) and when she did not respond he asked her to get out of the car. When she did not get out he reached in and physically removed her from the vehicle. The State argued that the officer was justified because he had formed the opinion that the defendant was drunk. However, this Court reversed the case because, under the facts and circumstances, the officer could not have formed his opinion until after he had pulled her from the car. The arrest and search were held to be unlawful.

Neither Willett nor Murphy stands for the proposition that the officer was not justified in approaching the defendant’s vehicle. In both cases the officer was where he had a right to be; however, he exceeded his authority in each case by his actions after approaching the car.

In the instant case, Officer Schmidt testified that he stopped the appellants’ vehicle because it was speeding. The traffic violation served as justification for the initial stop of the car. Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975) (speeding violation); Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974) (improper lane change); Trusley v. State, 505 S.W.2d 861 (Tex.Cr.App.1974) (improper start, no license plate light).

Appellant contends that, since there was a conflict in testimony over whether Schmidt issued the warning ticket, the State should have produced a copy of the ticket to support the justification for the initial stop. The trial court was the sole judge of the credibility of the witnesses and the facts in the hearing on the motion to suppress. Draper v. State, 539 S.W.2d 61 (Tex.Cr.App. decided July 19, 1976). He was present and observed the witnesses’ demeanor and the manner in which each witness testified. We are unwilling to conclude, upon this record, that the trial court abused its discretion in impliedly finding that Officer Schmidt told the truth. Hampton, supra.

Nor are we willing to agree that since Duff, as driver of the car, was in the patrol car with Schmidt, there was no justification for Schmidt’s approach of the car to question Pendley. Not only was he justified in approaching the car if he desired to check the license plate number or vehicle inspection sticker, but we have previously held that there is no prohibition against his questioning the passenger of the car. Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974).

In Leonard, the defendant’s car was stopped for a routine license check and the driver got out of the car and approached the officer. The officer detected “an odor from his clothing . . marihuana smell.” He then approached the vehicle to ask the passenger for his identification whereupon he detected the “real strong odor of marihuana.” The subsequent search was upheld.

In Wood, the accused was a passenger in a car driven by Glen Tores. An officer stopped the car because it had run a stop light and as he was discussing the traffic violation with the driver, Tores, he “observed by the light of (his) flashlight that the appellant appeared to be having difficulty keeping his eyes open and (he) formed the opinion that the appellant was under the influence of alcohol or drugs.” When Wood could produce no identification, Tores quickly interjected that he had lost his driver’s license the day before. Wood was asked to get out of the car and as he did the officer noticed that he was still acting as if under the influence of intoxicants and that he was watching the officer’s holstered pistol. The officer became somewhat apprehensive about his own safety due to Wood’s appearance. We upheld the officer’s subsequent pat down search of Wood and the search of the area in the car where he had been seated stating that “an occupant of an automobile is just as subject to a reasonable stop and to a reasonable frisk as is a pedestrian.” Wood, supra at 306; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See Borner v. State, supra, where the passenger in the Borner car made a movement as if trying to hide something, and compare with Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972) where the search was not upheld because the officer had no justification for the initial stop and the movement of passengers as though they were hiding something was not, by itself, sufficient to justify an investigative stop. See also Keah v. State, 508 S.W.2d 836 (Tex.Cr.App.1974).

We hold that, under the circumstances of a valid traffic stop, Officer Schmidt was authorized to approach the appellant’s car and that his detection of marihuana odor coupled with what appeared to be marihuana seeds on the floor and the conflict between the two appellants’ stories justified his search of the vehicle.

Appellants’ first four grounds of error are overruled.

We turn now to the contention that the evidence is insufficient to show possession of the marihuana by appellant Pendley. We note that the trial on guilt or innocence was before the court without a jury and that the appellants agreed to a stipulation of the evidence presented at the motion to suppress hearing. The question of sufficiency of the evidence is therefore dependent on the facts and circumstances as set out above with no additional evidence.

To establish unlawful possession of a controlled substance, such as marihuana, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974). Possession of marihuana, however, need not be exclusive and evidence which shows that the appellant jointly possessed the marihuana with another is sufficient. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976); Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975). Mere presence at a place where narcotics or dangerous drugs are possessed does not in itself justify a finding of joint possession. Long v. State, supra; Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975).

Where the accused is not in the exclusive control of the place where the contraband is found, it cannot be concluded that he had knowledge of the contraband and control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Long v. State, supra; Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App.1974). A conviction based on circumstantial evidence cannot be sustained unless the circumstances exclude every other reasonable hypothesis except that the accused is guilty. Proof which amounts only to a strong suspicion or mere probability is insufficient. Higgins v. State, supra; Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969).

Applying these general principles to the instant case, we must determine if the State has met its burden of linking appellant Pendley with the marihuana by “independent facts and circumstances” in addition to his “mere presence” in the automobile with Duff. The independent facts and circumstances are (1) Duff’s statement that Pendley had come to Austin with him from Corpus Christi; (2) Pendley’s conflicting statement that he was a hitchhiker whom Duff had picked up outside of Austin; (3) Officer Schmidt’s statement that he smelled a strong odor of marihuana emanating from the car; (4) Schmidt’s statement that there were marihuana seeds scattered all over the front floorboard, and (5) Officer Rodman’s testimony that he found no marihuana seeds on the front floorboard.

We compare these facts and circumstances with the case of Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972). In that case we reserved a conviction for possession of amphetamines because there were no facts or circumstances other than the presence of the defendant as a passenger in a car in which amphetamines were found in a matchbox on the left side of the dashboard.

The instant case differs from Payne in that the officer smelled the strong odor of marihuana and saw seeds on the floor of the car. The testimony of Duff that there was a mat and considerable trash on the floor along with the testimony of Officer Rodman that he found no seeds was before the trial court for its consideration along with the testimony of Officer Schmidt. The court, as trier of facts, is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may accept or reject all or any part of a witness’s testimony. Hernandez v. State, supra; Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1972).

In Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972) there was no odor of marihuana or marihuana smoke and no evidence of marihuana in plain view which would link the defendant, a passenger in the rear seat of the car, with the marihuana found in a matchbox hidden in a Kleenex box directly in front of the driver’s seat. We reversed the conviction for possession of marihuana even though there was evidence to link the defendant with other narcotics paraphernalia found in the ear.

In Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974) we reversed a conviction for possession of marihuana when the evidence showed that in addition to the defendant there were at least three other people in his automobile at the time of the arrest and search and all the officers could find were nine marihuana seeds on and under the carpet of the defendant's car. We held that although it was “not unreasonable to assume that marihuana had been possessed at some earlier point in time by a person or persons occupying that automobile” there were no affirmative links to “justify a conclusion that, because of this prior conduct, the appellant (was) guilty, beyond a reasonable doubt, of possessing marihuana” in a usable amount.

In Sanders v. State, 482 S.W.2d 648 (Tex.Cr.App.1972) cert. denied, 409 U.S. 884, 93 S.Ct. 176, 34 L.Ed.2d 140, we affirmed the conviction of the defendant, a passenger in a car in which three sacks full of marihuana were found. It was shown that the defendant signed a form abandoning any claim to marihuana seeds and debris found in his baggage when crossing the Mexican border. Between the time of the signing of this form and the stop of the automobile in Pleasanton the three sacks of marihuana were placed in the car. This circumstance in conjunction with the presence of a sprig of marihuana on the passenger side of the vehicle supplied the affirmative link between the defendant and the marihuana.

Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976) supplies us with an analogous fact situation. There we affirmed an order revoking probation of the defendant driver of the car where marihuana was found on the floor of the car in front of the passenger seat, occupied by the defendant’s brother who admitted ownership of the contraband.

The instant case, like Hernandez, supra, is “a close one,” but we conclude that the conflict between the appellants’ stories is a circumstance implying guilt and when it is coupled with the strong odor of marihuana and the presence of what appeared to be marihuana seeds on the floor of the vehicle, the evidence is sufficient to link appellant Pendley with the marihuana.

Appellants’ final ground of error is overruled.

Appellants’ motion for rehearing is overruled.

The judgments are affirmed.

Opinion approved by the Court.

ROBERTS, Judge,

dissenting on appellant’s motion for rehearing.

On the basis of Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1976), I cannot agree with the majority.

I would reverse the judgment of the trial court and remand the cause.

PHILLIPS, Judge,

dissenting on appellant’s motion for rehearing.

I disagree with the majority’s conclusion that the conflict between the appellants’ stories is a strong circumstance implying guilt and when it is coupled with the strong odor of marihuana in the presence of what appeared to be marihuana seeds on the floor of the vehicle, the evidence is sufficient to link the passenger-appellant Pend-ley with the marihuana.

In Hernandez v. State, Tex.Cr.App., 538 S.W.2d 127, cited by the majority, it was noted that to establish unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband and (2) that the accused knew the matter possessed was contraband. In the instant case the State has failed to meet the second prong of this test.

The majority attempts to link the passenger-appellant with the marihuana by “independent facts and circumstances” in addition to his mere presence in Duff’s automobile. I disagree with the manner in which the majority has interpreted these facts. The majority appears to attach significance to the conflicting statements given by Duff and Pendley: Officer Schmidt testified that Duff stated that Pendley had come to Austin with him from Corpus Christi, whereas Pendley told him that he was a hitchhiker whom Duff had picked up outside of Austin. However, these conflicting statements cannot be equated with the passenger’s knowledge that his driver is carrying marihuana in the back seat or trunk.

There was additional testimony from Officer Schmidt that he observed the strong smell of marihuana in the ear; however, we cannot impute a knowledge of the smell of marihuana to Pendley, who did not have the benefit of Schmidt’s police academy training. See Armstrong v. State, Tex.Cr.App., 542 S.W.2d 119. Similarly, there was a conflict in testimony about the presence of marihuana seeds on the floorboard of the car. Once again we are unable to assume Pendley would recognize the seeds as marihuana if they were, in fact, there.

The majority cites to Sanders v. State, 482 S.W.2d 649, to illustrate circumstances which show the necessary affirmative link between a passenger-defendant and the marihuana. In Sanders the passenger signed a form abandoning any claim to marihuana seeds and debris found in his baggage pursuant to a border search of both the car and his personal effects. Several hours later, the passenger was in the car when it was searched 140 miles from the border and three Mexican flour sacks filled with marihuana were found in the trunk. Sanders is distinguishable from the instant case in several respects. The fact that the passenger in Sanders had some marihuana debris in his suitcase tends to support a presumption that he had some familiarity with the substance. Therefore, it is not unreasonable to assume he may have recognized the sprig of marihuana which was later found on the right front floorboard of the car. Additionally, the circumstantial evidence in Sanders tends to show that the passenger was present when the marihuana was placed in the automobile trunk, since he had been present at the earlier search when none was found. In the instant case, there is nothing to show when the marihuana was placed in the car, even assuming Pendley had come from Corpus Christi that day.

The instant case turns on a “close” fact situation and is more in line with our decisions in Harvey v. State, Tex.Cr.App., 487 S.W.2d 75, and Taylor v. State, Tex.Cr.App., 505 S.W.2d 927, cited by the majority. Accordingly, I would reverse the judgment of the trial court as to appellant Pendley and remand the cause.

ROBERTS, J., joins in this dissent.


author: ROBERTS, Judge.

text:
    Morris Ray EDMOND, Appellant, v. The STATE of Texas, Appellee.
    No. 52489.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.
    Rehearing Denied Feb. 16, 1977.

      James P. Finstrom, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds and Paul Macaluso, Asst. Dist. Attys., 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 an order revoking probation.

On December 19, 1974, the appellant was found guilty of forgery under our new Penal Code; his punishment was assessed at three years, probated. On May 14, 1975, the State filed a motion to revoke appellant’s probation. A hearing was held on this motion on November 19, 1975. After hearing evidence the court revoked appellant’s probation and imposed sentence.

Appellant’s sole contention is that the indictment is fundamentally defective because it does not allege that the appellant passed the instrument knowing it was forged.

The indictment is identical in all material aspects to the indictment in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1976), delivered on rehearing this day. In the court’s opinion on rehearing, a majority of this Court held that the absence of this knowledge element does not render a forgery indictment fundamentally defective, although such an indictment may be attacked by a motion to quash.

There is a pertinent motion to quash the indictment in this case, but it was not filed until the date of the hearing on the motion to revoke. This was too late to preserve the error. Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968). Appellant’s contention must therefore be overruled.

The judgment is affirmed.

ONION, P. J., and ODOM, J., dissent.


author: ONION, Presiding Judge.

text:
    Willie Delores TOLER aka Willie Dee Carrier, Appellant, v. The STATE of Texas, Appellee.
    No. 52567.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.
    Rehearing Denied Feb. 16, 1977.

      Sexton, Watson & Sexton, Orange, for appellant.

      Jim Sharon Bearden, County Atty., Orange, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is from a conviction for delivery of heroin. Punishment was assessed by the jury at life imprisonment.

Three of appellant’s grounds of error relate to the court’s jury charge and three relate to the admission and exclusion of evidence.

While the sufficiency of the evidence is not challenged, a brief recitation of the facts will put the grounds of error in better perspective.

Joseph Payne, deputy sheriff of Calcasieu Parish, Louisiana, testified he was working as an undercover agent in Orange County on September 25, 1974. He related that about 8:15 p. m. he went to 306 South Farragut and purchased $50.00 worth of heroin from Andrew Carrier. Appellant was present in the house at the time. He returned to the same address at about 10 p. m. and appellant answered the door. He asked for three “papers.” Appellant let him inside the house and gave him three “papers” for $75.00. He stated appellant was alone at the time.

Deputy sheriff Jack Hebert of Calcasieu Parish was in the trunk of Payne’s car. He testified that at 10 p. m. Payne left the car and came back after a while. They drove to a Holiday Inn and met other officers, and Payne produced heroin he did not have previously.

Deputy sheriff John Wade, Jr. of Orange County, with officer Duhon, followed Payne in another automobile. Wade observed Payne enter the house in question about 10 p. m. and later leave. He met Payne and Hebert at the Holiday Inn, and Payne produced three packets of heroin he did not have before going to the house in question.

The chain of custody of the packets was established, and the chemist Blalock testified that each packet contained heroin.

Testifying in her own behalf, appellant denied the delivery of heroin to Payne. She stated Payne had come to the house where she was living with Andy Carrier on several occasions but was always with a heroin addict named Charles Morris. She admitted that she had been a heroin addict for two years and that Carrier had been giving her free heroin.

Initially appellant contends the court erred, despite objection, in refusing to strike the alias name “Willie Dee Carrier” from court’s charge to the jury even though at arraignment she had suggested her correct name of “Willie Delores Toler.” Appellant contends that the alias name implied a meretricious relationship and prejudiced her in the eyes of the jury.

The indictment returned named the appellant as “Willie Dee Tolar AKA Willie Dee Carrier.” At arraignment appellant suggested her correct name was “Willie Delores Toler” in accordance with Articles 26.-07 and 26.08, Vernon’s Ann.C.C.P. The indictment and other records were ordered corrected accordingly, but we do not find that the alias was struck from the indictment.

On cross-examination of Payne he referred to the appellant as “Willie Dee,” and inquiry was made about her last name, which Payne testified was “Toler alias Carrier.” Appellant’s counsel asked, “Why the alias?” Payne replied she was supposedly living with Carrier “or was married to him.” Hebert and Wade both testified that the appellant was known as both “Toler” and “Carrier.”

When the court submitted the charge to the jury at the guilt stage of the trial, the case was styled “The State of Texas vs. Willie Delores Toler AKA Willie Dee Carrier.” The appellant’s name with such alias was repeated twice in the body of the jury charge. The appellant timely objected to the inclusion of the alias, but the objection was overruled.

It has been held that the precursors of Article 26.07 and 26.08, supra, have no application to an alias used in the indictment and a court is not required to remove the alias from the indictment at the accused’s suggestion when there is no showing of bad faith and no prejudice to the accused. Brannon v. State, 164 Tex.Cr. 83, 296 S.W.2d 760 (1956). See also Johnson v. State, 168 Tex.Cr. 172, 324 S.W.2d 209 (1959); Hall v. State, 158 Tex.Cr. 243, 254 S.W.2d 523 (1953); Hornsby v. State, 91 Tex.Cr. 166, 237 S.W. 940 (1922).

In Fernandez v. State, 172 Tex.Cr. 68, 353 S.W.2d 434 (1962), it was held not error to have the record include both names of the defendant where the evidence reflected he went by both names even though he had suggested his true name at the arraignment.

Appellant contends that in view of the written order entered at the time of arraignment and the fact the alias was not mentioned when the indictment was read to the jury her objection to the charge should have been sustained.

In light of the fact no physical change was made on the indictment as to the alias, see Blaylock v. State, 161 Tex.Cr. 346, 276 S.W.2d 835 (1955), and there was no showing of bad faith on the part of the prosecutor, we cannot conclude that there was any prejudice to the appellant, particularly in view of the testimony, including her own. She was not deprived of a fair and impartial trial nor was the overruling of the objection to the charge calculated to injure appellant’s rights. See Article 36.19, Vernon’s Ann.C.C.P.

It is observed that the alias was used in the charge at the penalty stage of the trial but the objection was not renewed.

Next appellant contends the court erred in refusing to strike reference to “manufactures” in the court’s abstract charge on the definition of the delivery of a controlled substance since the term was not pleaded in the indictment or raised by the evidence.

The court abstractly charged the jury; “A person commits the offense of unlawful delivery of a controlled substance if he or she knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver, a controlled substance listed in Penalty Group 1, 2, 3 or 4.”

Later in the charge the court, in applying the law to the facts, charged:

“Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, WILLIE DELORES TOL-ER AKA WILLIE DEE CARRIER, on or about the 25th day of September, 1974, in the County of Orange, and State of Texas, as alleged in the indictment, did then and there knowingly or intentionally deliver to Joseph W. Payne a controlled substance listed in Penalty Group 1, to wit: Heroin, you will find the defendant guilty of the offense of unlawful delivery of a controlled substance and so say by your verdict; but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘Not Guilty.’ ”

It is clear that the court did not use the term “manufactures” in applying the law to the facts.

Article 4476-15, § 4.03(a), Vernon’s Ann. C.S., reads:

“Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.”

The abstract charge on the definition of delivery of a controlled substance tracks the statute and is strikingly similar to the forms recommended in the New Texas Penal Code Forms, p. 402, Morrison and Blackwell, 1973, and Texas Criminal Pattern Jury Charges, p. 731, 1975.

In Martinez v. State, 157 Tex.Cr. 603, 252 S.W.2d 186 (1952), involving a marihuana conviction it was stated it had long been held proper for the trial court in its jury charge to set forth the general law defining the offense charged and then make a direct and pertinent application of the law to the facts in the particular case.

In Grudzien v. State, 493 S.W.2d 827 (Tex.Cr.App.1973), involving a sale of marihuana the court abstractly charged it was unlawful to “manufacture, possess, sell, prescribe, administer, dispense, or compound” any narcotic drugs. The court later applied the law to the facts of the case restricting the jury to determining the charge in the indictment—the sale of marihuana. There we held that there was no showing of any injury by the abstract charge or general statement of law which the trial court gave. See also Rodriguez v. State, 166 Tex.Cr. 86, 311 S.W.2d 412 (1958).

In Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976), an aggravated robbery case, it was observed that the trial court’s jury charge setting forth the entirety of Y.T. C.A., Penal Code, §§ 29.01 and 29.02, including portions thereof that were not pled in the indictment nor supported by evidence, was at best useless and at worst may confuse or mislead the jury and, therefore, prejudice a defendant.

While we adhere to the admonishment in Dowden, we cannot conclude that reversible error is here presented. See also Article 36.19, Vernon’s Ann.C.C.P.

Appellant also urges that fundamental error occurred when the trial court failed to charge at the guilt stage of the bifurcated trial that the burden of proof in a criminal case was upon the State. This should have been done, but there was no objection to the charge nor any special requested charge. See Articles 36.14 and 36.-15, Vernon’s Ann.C.C.P.; Fields v. State, 544 S.W.2d 153 (Tex.Cr.App.1976); Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976); Moreno v. State, 541 S.W.2d 170 (Tex.Cr.App.1976); Jackson v. State, 536 S.W.2d 371 (Tex.Cr.App.1976). In absence of such objection or special requested charge no error is reflected.

It cannot be said that the failure of the court to so charge sua sponte as the appellant contends on appeal was calculated to injure the rights of the appellant or deprive her of a fair and impartial trial. See Article 36.19, supra; Fields v. State, supra.

While the voir dire examination of the jury panel is not before us and we do not know what was said there, we observe several places in the record where the jury was told by the attorneys that the burden of proof was upon the State. The court’s charge quoted above required the jury to find the appellant guilty beyond a reasonable doubt.

Appellant’s contention is overruled.

Turning to the grounds of error relating to the admission and exclusion of evidence, we find that appellant contends the court erred in refusing to permit her counsel to cross-examine the State’s witnesses as to the times, places and circumstances surrounding other alleged sales of controlled substances on the night in question, thus denying her the right of confrontation of witnesses.

It appears that the officers involved made four purchases of narcotics on the night in question, the first being about 7 p. m., the second from Carrier about 8:15 p. m. and the last from the appellant about 9:55 or 10 p. m. Not much appears in the record as to the third buy, although it is shown that appellant was in no way connected with the first and third sales. Appellant urges that since these purchases were made in a limited amount of time in a town that was not large a time problem is presented and her cross-examination should not have been limited because it could have affected the credibility of the witnesses. Appellant does not point out where in the record her cross-examination was limited, and it is clear from the above that some testimony about the other purchases was elicited.

We first observe that if her cross-examination was limited she did not perfect a bill of exception nor proffer of proof in accordance with Article 40.09, § 6, Vernon’s Ann. C.C.P., to show what the testimony would have been if she had been permitted to elicit such answers. Nothing is presented for review. See Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975); Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974); Pegoda v. State, 470 S.W.2d 675 (Tex.Cr.App.1971).

Further, the scope of cross-examination is within the control of the trial judge in the exercise of his sound discretion. Richardson v. State, 508 S.W.2d 380 (Tex.Cr.App.1974); Garcia v. State, 427 S.W.2d 897 (Tex.Cr.App.1968); Young v. State, 488 S.W.2d 92 (Tex.Cr.App.1972); 62 Tex. Jur.2d, Witnesses, § 861.

The record reflects that each of the State’s witnesses was cross-examined at some length. If there were any limitation of cross-examination, we cannot say under the circumstances that the trial court abused its discretion.

The ground of error is overruled.

In another ground of error appellant complains that the trial court erred in failing to require the State to divulge material evidence concerning the other buys of drugs occurring the night of the alleged offense which may have had an effect upon the outcome of the trial.

Appellant does not point out in the record where she requested discovery, and this court should not be required to examine the record page by page to determine if such a request was made or not. Appellant does make reference to an unidentified black man. The testimony showed that undercover agent Payne engaged an unidentified black man in conversation and he got in the car with Payne (with Hebert in the trunk) and drove to the Carrier house where the purchase at 8:15 p. m. was made from Carrier. The unidentified man left Payne’s car shortly thereafter, and, according to the officer’s testimony, he was not with them again and they never did learn his name. He was not shown to be present at the time of the alleged offense. There has been no showing that any evidence was suppressed by the State. See Elkins v. State, 543 S.W.2d 648 (Tex.Cr.App.1976).

Appellant also complains that she was denied the offense report of deputy Wade concerning the purchase of heroin from Andy Carrier. On cross-examination Wade’s offense report concerning the purchase of heroin from the appellant was requested and made available to the appellant for cross-examination and possible impeachment. See Gaskin v. State, 172 Tex.Cr. 7, 353 S.W.2d 467 (1962). When it was established that Wade had made a separate offense report concerning the delivery of heroin by Carrier, a request was made for that report and it was refused on the basis that it involved another defendant and another sale or delivery at a different time.

Even if it can be argued that appellant was entitled to the offense report, there was no trial or post-trial request for the excluded offense report to be included in the appellate record or for it to be sealed and forwarded to this court for its inspection. See Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972) (footnote #4); Moore v. State, 509 S.W.2d 349 (Tex.Cr.App.1974). Thus the error, if any, was not preserved since no steps were taken to have the report included in the record. Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973); Lewis v. State, 481 S.W.2d 804 (Tex.Cr.App.1972); Stevenson v. State, 456 S.W.2d 60 (Tex.Cr.App.1970).

Lastly appellant contends the court erred in permitting the chemist, Jessie Blal-ock, to testify over her objection that Blal-ock was not on the list of witnesses furnished by the State following the granting of her pre-trial “Motion to Furnish Names.”

At the beginning of the trial appellant was given the name of Blalock and was told he was the chemist. Appellant complained her earlier list showed the chemist was Ur-banousky and objected to the substitution.

Blalock was the last witness for the State, and appellant then objected to his testimony because his name was not on the earlier list and moved for a continuance, which was denied.

Blalock testified that he alone actually ran all the tests on the heroin in question, and that he assumed that Urbanousky, a supervisor in the laboratory where he worked, had been subpoenaed because the State did not know at that time who had analyzed the substances. Blalock testified he appeared as a result of a telephone call. During the midst of Blalock’s cross-examination an overnight recess occurred and the appellant had time to study the witness’ testimony and report. There is no showing that the appellant had interviewed Urba-nousky, did any special investigation or special work in preparation for cross-examination of that witness, or was prejudiced in any way by the fact that Blalock turned out to the chemist who had actually run the tests. Appellant asserts the substitution restricted her ability to cross-examine Blal-ock, but does not explain how it did. Under the circumstances, no reversible error is reflected. See Willis v. State, 518 S.W.2d 247 (Tex.Cr.App.1975); Clay v. State, 505 S.W.2d 882 (Tex.Cr.App.1974); Bradley v. State, 450 S.W.2d 847 (Tex.Cr.App.1969).

The ground of error is overruled.

The judgment is affirmed.

      . From a transcription of the court reporter’s notes it appears that when the indictment was read to the jury the prosecutor did not refer to the alias in the body of the indictment.

      . Cf. Jury Charges for Texas Criminal Practice, McClung, p. 113 (1976); Texas Ann.Penal Statutes with Forms, Branch’s Third Ed., p. 91 (1975).