author: MITCHELL, Judge.

text:
    John D. WITHERS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 24, 1975.
    Certiorari Denied by Supreme Court April 7, 1975.

      Walker Gwinn, John C. Hough and Edward G. Draper, Asst. Public Defenders, Edward G. Thompson, Memphis, for plaintiff-in-error.
    Milton P. Rice, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Phil M. Canale, Jr., Dist. Atty. Gen., Ewell C. Richardson and Don F. Young, Asst. Dist. Attys. Gen., Memphis, for defendant-in-error.
   OPINION

MITCHELL, Judge.

The defendant John D. Withers was indigent and represented at the trial by Assistant Public Defenders Honorable John C. Hough and Honorable Edward G. Draper. On appeal the defendant was represented by the Shelby County Public Defender Honorable Walker Gwinn. The defendant was tried in two separate cases on two separate indictments, one charging rape, and the other charging robbery by the use of a deadly weapon, upon the same person on the same date. The two cases were consolidated for trial and on October 25, 1973, the defendant was convicted in the Criminal Court of Shelby County of rape with a 25 year sentence imposed, and simple robbery with a 5 year consecutive sentence imposed.

After the Trial Judge Honorable Perry H. Sellers heard and overruled the new trial motion the defendant appealed and assigned errors.

We here summarize the facts from testimony of the State’s witnesses which was accepted by the jury.

The victim of this brutal assault, rape and robbery was Miss Sheila Langston age 23. She had completed two years in college and was at the time employed in respiratory therapy at Methodist Hospital in Memphis. Her working hours were from 7:00 A.M. to 3:00 P.M. Miss Langston arose early on February 6, 1972, and about 6:30 A.M., was walking from her rooming house alone to the hospital which was about three or four blocks. As she neared the hospital she had crossed the street and was walking in the parking lot toward the dormitory of the Methodist Hospital. A car turned in front of her and shined the lights in her face but she continued walking. A man jumped out of the car and attacked her and started beating her with a hard object. She tried to defend herself and ward off the blows, but with no success. He kept beating her and forced her into the front part of the car and told her to get on the floor board. Then the man got into the car and started driving.

Miss Langston had a small cylinder of sheriff’s mace which she took from her pocket and tried to spray her abductor but it was not effective. The man took the mace from her and started beating her again. He drove the car about two blocks from the hospital and stopped.

He pulled her over on the driver’s side, showed her a pistol that looked like a .22 caliber, black with white handles, and said he ought to kill her. He then opened the back door of the car, forced her into the back seat, pulled her pants down, compelled her to lay down and put her coat over her head. He forced her to put her legs up but she resisted and he started beating her again.

From the description she gave of what took place the defendant had unlawful carnal knowledge of her forcibly and against her will. Then the defendant suggested a loathsome perverted sex act which she refused to do.

The defendant got up and got out of the car and told her to get out. The defendant then searched in her purse but found no money. He compelled her to give him $7.00 and before she could get out of the car he seized her arm and took her Timex skindivers black wrist watch. The dial of the watch was worn and there was a bad crack in the crystal. He warned her she had better not tell the police and as he drove off she got his car license number which she later gave to the police.

Two L.P.N. student nurses then drove up and took Miss Langston in their car to the hospital emergency room. Two policemen were already there to whom Miss Langston reported the rape and robbery. The nurses took her to a room where the police and a detective talked to her. She gave the police a full description of the defendant and his car and the license numbers. Then her brother came and talked to her.

The next day Miss Langston went to the police station and gave a statement. Miss Langston testified that during the attack and during this ordeal there were times when she got a good look at the man who raped and robbed her, particularly when they were fighting, then when he showed her the pistol and threatened her and when he was searching through her purse. Those instances she said the light was sufficient for her to get a good look at .him.

That on March 18, 1972 she attended a line-up conducted by the police when she recognized and identified the defendant as the man who had committed these crimes against her.

Miss Langston in the Courtroom positively identified the defendant John Withers as the man who raped and robbed her.

The proof showed that the victim Miss Sheila Langston was a pure and chaste'virgin prior to the attack made on her by the defendant.

Miss Langston identified her watch which was made an exhibit in the case. After the rape and robbery the watch was found in the possession of the defendant John Withers. The proof showed the defendant told a friend that he got the watch from a woman he had a bust with meaning sexual relations.

Dr. George William Jenkins M.D., who was on duty in the emergency room at the hospital when Miss Langston was brought in treated her for lacerations about her head and face. He also found abrasions, mud and dirt on her legs and neck. There was bleeding at the opening of the vagina with blood in the vault with live sperm. From his examination Dr. Jenkins determined the man who committed the assault was infected with gonorrhea. Dr. Jenkins gave Miss Langston medication to guard against pregnancy and gonorrhea.

It was Dr. Jenkins’ opinion that Miss Langston had never had sexual relations prior to the morning of the assault.

According to the testimony of Patrick L. Harper, 10 year veteran of the Memphis Police Department, in the early hours of February 6, 1972, he was at Methodist Hospital in Memphis. Miss Sheila Langs-ton gave him information that the license number of the vehicle used in the assault was Tennessee T-23669. Harper recognized that this was an impossible number because of the County prefix. Logical deduction produced the correct number 1-Z3669.

Harper and his partner then followed up on this deduction and found that the license number was registered to one Rena Langston (No relation to the victim), who was a patient in Methodist Hospital on the day of the assault. The automobile was found at 1912 Lamar, Rena Langston’s home address. A considerable quantity of blood was on the right front seat as reflected in the photograph exhibit 5.

Rena Langston testified that she left the automobile locked before entering the hospital, and she had in her possession the only two known sets of keys to her automobile. She had given no one permission to drive the automobile and it did not have blood on the front seat when she last saw it prior to entering the hospital. The car was a Buick ’64 or ’65 which had a white top and tan body with light tan seat covers or upholstery.

At the time of his arrest on March 17, 1972, the defendant was seen to drop or throw down a screw driver and a bunch of keys which were recovered by the officers.

It developed that among those keys there were 8 that fit the ignition of the Buick and one key fit the door lock of the Rena Langston tan Buick with a white top, with blood on the front seat, which was identified by the victim Miss Langston as the car in which the crime was committed.

The defendant John D. Withers took the witness stand and testified in his own behalf. In his testimony the defendant admitted that he first told the officers he did not have, nor drop or throw down the screw driver and the keys, but he later admitted he had the screw driver with which he was working on his car. But the defendant steadfastly denied having or dropping the bunch of car keys.

He denied assaulting or robbing Sheila Langston. That he had never seen Miss Langston, that he was at home in bed. He further said that he was 26 years old, 5 feet 11½ inches tall, and that he had never had venereal disease. He said he stole the Timex watch out of a parked car at John Gaston Hospital. He denied he said he had a bust out with a lady from whom he got the watch.

The defendant made the following assignments of error:

ASSIGNMENTS OF ERROR

1. There is no evidence to support the verdict.

2. The verdict of the jury is contrary to the law and the evidence.

3. The evidence preponderates against the verdict of the jury and in favor of the defendant.

4. The Court erred in overruling the objection of the defendant to the admission of pictures of the victim, showing how she was beaten. These were color photographs and were liable to inflame the jury and had no probative value.

5. The Court erred in overruling the defendant’s objection to the line-up, which was unfair.

6. The Court erred in allowing into evidence the line-up identification card signed by the prosecutrix, Sheila Langston, because this was in violation of the well settled rule that prior consistent statements, or “self-serving” statements are not admissible in evidence.

7. The Court erred in allowing into evidence the testimony of Sheila Langston as to the identification at the line-up and allowing as an exhibit the line-up identification card that she signed.

8. The defendant further states that the Court erred in allowing the verdict of the jury to stand when the evidence pointed to the fact that the defendant would have had to have gonorrhea at the time of the intercourse with the prosecutrix and the defendant’s subsequent proof showed that there was no possibility of him having gonorrhea at this time.

9. Defendant would show that the arrest of the defendant was illegal and the Court erred in allowing into evidence any of the products of the arrest, such as the keys, screw driver and the sock.

10. The defendant avers that the Court erred in allowing into evidence the chain of keys found at the place where the defendant was arrested, when the chain of evidence was not proven as to the said keys.

11. The defendant avers that the Court erred in allowing the conviction for robbery of five (5) years to stand when the robbery arose out of the same transaction and the same intent as the rape conviction for twenty-five (25) years, and further avers that the Court erred when it ran the robbery conviction consecutive with the rape conviction in that both were part of the same intent.

12. The Court further erred in allowing verdict to stand, when it was patently contrary to the evidence.

Assignments 1, 2, 3, 8, and 12, challenge the weight and sufficiency of the evidence and will be considered together.

The trial jurors are the judges of the weight and credibility of the testimony of the witnesses. It is their duty to reconcile conflicts in the testimony if they can do so consistent with reason and truth. But, if there are irreconcilable conflicts in the testimony the jurors are to say who and what is to be believed. In cases where the proof of the state and that of the defendant are diametrically opposed, as in the case at bar, the trial jurors are to decide which testimony they will accept and may reject that which they are unable to believe. Gann v. State, 214 Tenn. 711, 383 S.W.2d 32.

A verdict of guilty approved by the trial judge accredits the testimony of the State’s witnesses and establishes the theory of the State.

We may not set aside a verdict on the facts unless the proof preponderates against the verdict and in favor of the innocence of the defendant. The defendant is here under a presumption that he is guilty as found by the jury and approved by the trial judge and the burden is on the defendant to show that the evidence preponderates against the verdict and in favor of his innocence. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; Shadden v. State, 2 Tenn.Cr.App. 450, 455 S.W.2d 164; Gann v. State, 214 Tenn. 711, 383 S. W.2d 32; Holt v. State, 210 Tenn. 188, 357 S.W.2d 57.

Whatever apparent discrepancies there may be in the testimony of the victim concerning the description of the defendant have been reconciled and decided by the jury verdict approved by the trial judge. As said by the Advocate General in his excellent brief such possible discrepancies are not sufficient to overcome the positive identification which the victim made of the defendant.

The defendant places much emphasis on the testimony of the doctor who determined by his examination of the victim that the man who committed the rape was infected with gonorrhea.

We think this theory loses much of its support when there was testimony that gonorrhea could be cured or cleared up in five days. Evidently, the trial jury was not impressed with the testimony of the girl friend of the defendant who said she was sleeping with the defendant and they were having sexual relations about three times a week and the testimony of the defendant’s wife who also said she and the defendant were having sexual intercourse about three times a week and neither of them had contracted any venereal disease.

The defendant’s assignment 4, that it was error to allow the district attorney to introduce color photographs showing Miss Langston’s wounds on her head and face, is without merit.

We think the photographs more effectively portrayed the true condition of the victim after she had been brutally beaten by the defendant, than could the words of the doctor. There is no contention that the photographs did not show the true and actual condition of the victim. It is well settled that the admissibility of photographs is a matter to be determined by the trial judge in the exercise of sound discretion. Freshwater v. State, 2 Tenn.Cr.App. 314, 453 S.W.2d 446; Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128.

We find no abuse of discretion here.

The 5th, 6th and 7th assignments of error complain of error by the trial court by allowing into evidence the line-up identification of the defendant. This allegation is based both on the line-up identification card signed by the prosecutrix as well as her testimony. Defendant contends that Miss Langston’s testimony about her actions at the line-up and introduction of the line-up identification card amounted to an erroneous bolstering of Miss Langston’s testimony. With this we do not agree.

We are unable to find any merit in these three assignments. In Blankenship v. State, 1 Tenn.Cr.App. 178, 432 S.W.2d 679, in affirming a conviction for armed robbery, in an opinion by Presiding Judge Mark A. Walker, we said:

“ We hold that the testimony of the prosecuting witness, concerning his previous identification of the defendant, was competent.’

In Gilbert v. State of California, 388 U. S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, footnote 3, the United States Supreme Court said:

‘There is a split among the states concerning the admissibility of prior extrajudicial identifications, as independent evidence of identity, both by the witness and third parties present at the prior identification. See 71 A.L.R.2d 449. It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial. See 5 A. L.R.2d Later Case Service 1225-1228. That is the California rule. In People v. Gould, 54 Cal.2d 621, 626, 7 Cal. Rptr. 273, 275, 354 P.2d 865, 867, the Court said:
“Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial (People v. Slobodion, 31 Cal.2d 555, 560, 191 P.2d 1) but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached * * * evidence of extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind * * *. The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at trial for cross-examination.” ’ ”

The defendant waived the right to an attorney at the line-up. No improper conduct was shown in the line-up procedure.

Assignment 9, is that the arrest was illegal and the bunch of automobile keys and screw driver were inadmissible. The defendant at the time of his arrest claimed to be the owner of a car which the officers found was registered in another’s name. When the officers approached the defendant he attempted to rid himself of the automobile keys and the screw driver. The officers knew of many cases of mysterious burglary of cars in that area which could have been committed only by the use of keys. The officer said to the defendant “the car is not registered in your name, you’ve got these keys and screw driver, you’re under arrest for investigation of auto theft.” We think the detention of the defendant was justified under the circumstances.

We hold the arrest and detention was supported by probable cause and was therefore lawful. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900.

Assignment 10, is that the chain of evidence concerning the keys in question was not properly shown. There is no merit in this assignment. The proof shows the trial judge conducted a “jury out” investigation and found the chain of evidence fully established.

Moreover defense counsel at the trial then withdrew his objection.

Assignment 12, that the verdict was contrary to the evidence, was answered in our response to assignments 1, 2, 3, and 8 concerning the weight and sufficiency of the evidence.

Assignment 11 is without merit. The testimony shows that the robbery occurred subsequent to the rape. The rape had already been committed prior to the commencement of the robbery. Its elements were separate and distinct from those necessary to constitute the offense of rape. Harris v. State, 206 Tenn. 276, 332 S.W.2d 675 (1960); Hayes v. State, 4 Tenn.Cr.App. 360, 470 S.W.2d 950 (1971).

These two offenses were committed by the defendant on the same occasion against the same victim. The facts out of which the two indictments grew are interrelated and some of the facts would be necessary in both cases. Therefore it was within the discretion of the Trial Court to consolidate the two cases for trial. Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914; State ex rel. Gann v. Henderson, 221 Tenn. 209, 425 S.W.2d 616; 5 Wharton Criminal Law and Procedure Sec. 931.

The defendant contends that the robbery case arose out of the same transaction as the rape case and that the robbery sentence of five years should not be allowed to stand, that it was error to order the robbery sentence to be served consecutively to the sentence in the rape case. With this we cannot agree.

We think there were two separate and distinct convictions, rape and robbery which justified two separate sentences. We hold that the Trial Judge did not abuse his discretion in ordering the robbery sentence to be served consecutively to the rape sentence. Hayes v. State, supra, Harris v. State, supra.

The assignments of error are overruled and the judgment is affirmed.

We are grateful to zealous Court appointed counsel for representation of the defendant.

RUSSELL and DWYER, JJ., concui


source: Caselaw Access Project

author: RUSSELL, Judge.

license: Public Domain

text:
    Fred Allen BERRY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 22, 1974.
    Certiorari Denied by Supreme Court April 14, 1975.

      Arthur M. Fowler, Loudon, for plaintiff in error.
    David M. Pack, Atty. Gen., Wm. C. Koch, Jr., Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, for defendant in error.
   RUSSELL, Judge.

OPINION

Fred Allen Berry, indigent and represented by appointed counsel, appeals his conviction for voluntary manslaughter and two (2) to ten (10) year penitentiary sentence. The legal sufficiency of the factual evidence presented by the State, both as it established the identity of the victim and also the cause of death, and as it established guilt, constitutes the main question in this case.

The alleged victim of this homicide was the estranged wife of Berry, from whom he had been separated for three years. Mrs. Berry and their three children had been living with her mother, a Mrs. Irene Gentry, while Berry had apparently been living in Georgia. Mrs. Berry disappeared on February 14, 1973. On April 13, 1973, the body which the State contends was hers was found. Identification of the body and establishment of the cause of death were made out only circumstantially, but we hold that the evidence of both was legally sufficient.

The State’s proof was that Berry appeared at the Loudon County Jail at 11 p. m. on February 13, 1973, and asked Deputy Sheriff Luke Bright to help him to find out where his mother lived. Deputy Bright drove Berry to Philadelphia, Tennessee, and finally located the home. Berry told the officer that he had returned from Georgia to get his wife and take her back to Georgia with him.

The next morning two of Berry’s sisters drove him to their aunt’s home, where he made a telephone call to someone asking them to meet him at a restaurant for a talk. About an hour later he arrived at the Gentry home, where his estranged wife refused to let him see their three children so he left. About half an hour later Mrs. Berry left home on foot wearing a sweater, pants and a pair of black boots belonging to her mother. A short time thereafter a neighbor saw her walking past her home with a man with dark brown hair. Another witness saw a scuffle between a man and a woman at the Huff barn on Stickee Road at about this time. That barn is where the body which the State submits is that of Mrs. Berry was subsequently found.

Late the same day Berry went to the home of another one of his sisters and told her and her husband that he had strangled Carolyn Ann Berry and had disposed of her body somewhere on Stickee Road. He was very nervous, so after about twenty minutes they drove him back to his mother’s home. The defendant subsequently called Mrs. Gentry, mother of Mrs. Berry, and told her that he and her daughter were going to be married again.

After Mrs. Gentry reported her daughter as missing the local authorities conducted a search. There had been an anonymous telephone call that she was buried in the Huff barn, but the police didn’t search the loft so didn’t find the body until a return trip weeks later (April 13, 1973) when the badly decomposed body was found in the loft covered by bales of hay.

The defendant was subsequently arrested in Georgia. He made no confession to authorities. He offered no proof upon the trial.

The body which was found was badly decomposed. .It could not be identified by viewing it, and was too badly decomposed for the cause of death to be determined. Mrs. Berry’s mother unequivocally identified the boots found upon the body as those worn by her daughter when she disappeared, and another witness was able to identify the striped pants.

The circumstantial evidence shows that Berry was seeking and finally found his wife on the day that she was last seen alive, and that same day he told his sister and brother-in-law that he killed her. This confession is direct evidence. The hypothesis that the death was from natural causes is further negated by the fact that the body was under bales of hay in a barn, which is totally inconsistent with death by natural causes or accident.

The identity of the body as that of Mrs. Berry is made out by her disappearance at that time, the confession of Berry, and the identification of the clothing upon the body as being that worn by Mrs. Berry when last seen. While the identity of the body is an essential element of the corpus delicti in Tennessee, it may be proved by circumstantial evidence, especially where that is the best proof attainable. Bolden v. State, 140 Tenn. 118, 203 S.W. 755 (1918). Identification of a decomposed, burned, or mutilated body, or portion thereof, is frequently established by evidence showing a similarity between the physical characteristics of the remains and of the victim, coupled with evidence that the clothing, or fragments thereof, found on or near the remains was the same as, or similar to, clothing worn by the victim. 86 A.L.R.2d homicide — Identification of Victim § 10[h] p. 771, 2; Lancaster v. State, 91 Tenn. 267, 18 S.W. 777 (1892). Circumstantial evidence of the identity of a body may be found in the correspondence of peculiar physical characteristics, or in clothing, or articles found in connection with the remains. 41 C.J.S. Homicide § 313, pp. 23, 24. Cathey v. State, 191 Tenn. 617, 235 S.W.2d 601 (1950).

We are not only satisfied with the sufficiency of the evidence establishing the identity of the body, but we also hold that the cause of death is circumstantially shown by the confession and the secretion of the body, and the fact that the other circumstances shown by the evidence are consistent with the strangulation death confession. Certainly it is not the law that the cause of death must be scientifically proven in every case. In many homicides this would be impossible, where, as here, there was substantial or total decomposition of the body. See Cathey v. State, supra; Bryant v. State, Tenn.Cr.App., 503 S.W.2d 955 (1973); Franklin v. State, 180 Tenn. 41, 171 S.W. 281 (1943) ; McCord v. State, 198 Tenn. 226, 278 S.W.2d 689 (1954); Davis v. State, 1 Tenn.Cr.App. 479, 445 S.W.2d 933 (1969); Ford v. State, 184 Tenn. 443, 201 S.W.2d 539 (1945); Wilson v. State, 2 Tenn.Cr.App. 468, 455 S.W.2d 172 (1970).

The trial court did not err in refusing to direct a verdict of acquittal. See T.C.A. § 40-2529. Obviously, the trial judge was not of the opinion that the evidence was insufficient to warrant a conviction, nor are we of that opinion. This was a case for the jury to decide. State v. Grace, Tenn., 493 S.W.2d 474 (1973).

The remaining assignment of error is directed at the admission over objection of the testimony of Deputy Sheriff Bright concerning the conversation with Berry in which Berry told him that he had come to get his wife and take her to Georgia. The contention is that since a motion was made pre-trial for information regarding any confessions or statements against interest as provided for in T.C.A. § 40-2441, and nothing furnished regarding this conversation, that it should have been excluded. That the statement of Berry was not a confession is obvious, since no crime had been committed at the time of its utterance. Whether or not it was a statement against interest and embraced within the ambit of the statute need not be decided in this case, since even if it were there could be no prejudicial error in the context of this case wherein a complete confession was made by Berry to his sister and brother-in-law after the fact of the slaying.

We are satisfied that the charged crime was committed, and that Berry is guilty. The verdict of voluntary manslaughter shows that the jury took a compassionate view of the State’s charge of first degree murder. We affirm the conviction.

OLIVER and DWYER, JJ., concur.


author: GALBREATH, Judge.

text:
    William Brady TRIGG, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 13, 1975.
    Certiorari Denied by Supreme Court April 14, 1975.
    Walker Gwinn, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, for appellee.
   OPINION

GALBREATH, Judge.

We have here an appeal from the dismissal without an evidentiary hearing of the petitioner’s claim that he should be allowed credit for time spent in jail and in a federal prison prior to his 1971 conviction in the Shelby County Criminal Court for armed robbery and resulting sentence of ten years ordered served concurrently with the federal sentence then being served.

The trial judge had jurisdiction to decide the issue and correctly dismissed the pro se application because it did not set forth any grounds upon which the court could have predicated relief. T.C.A. § 40-3809, Porter v. State, 2 Tenn.Cr.App. 437, 455 S.W.2d 159.

Taken as true all of the facts detailed above relating to the petitioner’s incarceration in a federal reformatory and jail in Shelby County after Tennessee authorities instituted prosecution, no credit for such confinement would accrue to him under the provisions of T.C.A. § 40-3102 giving one detained an absolute right to credit for time in jail in “which he was committed pending his arraignment and trial” and “for the time he served in the jail, workhouse or penitentiary subsequent to any conviction arising out of the original offense for which he was tried.”

This Court dealt with this issue in State v. Mitchell, Jackson, September, 1973. In denying Mitchell credit for time spent in jail in Shelby County after being returned to Tennessee from a federal institution in another State to be tried for forgery, Judge Robert K. Dwyer said:

“The intent of the legislature in passing TCA 40-3102 was to insure that defendants in custody, who are unable to make bond prior to trial and on appeal, are to be given credit for such time served. It obviously was passed to prevent invidious discrimination between persons of means and those of none. The appel-lee should not be given dual credit for the time served when he was returned in accordance with the agreement entered into between federal and state authorities under TCA 40-3102. Indeed, his petition for credit under these circumstances is astride the clear mandate of TCA 40-3901, Article V, subsection (f) which provides that his time continues to run, as here, on the federally imposed sentence, while he is in temporary custody.”

This writer pointed out in an opinion concurring with Judge Dwyer:

“The time in controversy here was not spent in jail because of the ‘impending arraignment or trial’ or ‘any conviction arising out of the original offense for which he was tried’ as contemplated by provisions of TCA § 40-3102. He was being detained in jail because of the valid sentence he was serving at the time. He could not have been enlarged on bail. He could not have been released if ac-quited. In short, his imprisonment was not the result of the offense of the sentence on which the trial judge [could] give him credit.”

Trigg was behind bars because he had been sentenced to a period of confinement by a federal court. Nothing intervened to interrupt the serving of that federal sentence. He was deprived of his liberty for exactly the same reason while awaiting disposition of the Tennessee case as he would have been if able to make bond on the latter charge. It is only when the time spent in jail or prison is due to or, as the statute says, “arises out of” the offense for which the sentence against which the credit is claimed that such allowance becomes a matter of right.

Judge Robert K. Dwyer did not participate in this decision.

Affirmed.

O’BRIEN, J., concurs.


author: VANCE, Commissioner.

text:
    Danny Gale RACHEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 25, 1975.

      Anthony M. Wilhoit, Public Defender, J. Vincent Aprile, Asst. Public Defenders, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   VANCE, Commissioner.

The appellant, Danny Gale Rachel, was indicted jointly with George Bishop Boggs for the murder of Mack Trent, Jr. They were tried jointly. Rachel was convicted of voluntary manslaughter and sentenced to eighteen years’ imprisonment. Boggs was convicted of murder and sentenced to life imprisonment. They have prosecuted separate appeals relying principally upon the same allegations of error.

Rachel and Boggs were arrested in Cumberland, Kentucky, when an automobile driven by Boggs ran into the side of a building. Boggs was drunk at the time.

Several hours after the arrest Rachel informed the jailer that he believed that he and Boggs killed a man the night before. The jailer informed the sheriff of this fact and the sheriff examined Rachel at the county jail. The sheriff gave the following testimony concerning Rachel’s statement:

“A. Mr. Rachel, he started telling me that him and another boy from over in Perry County had went down to Lightning’s place, a beer joint at Jeff, and this boy was with him. At that time he couldn’t tell me his name. He couldn’t remember his name, and I asked him his name, but he referred to him as this boy with him. Said he went in back of the dance hall of Lightning’s place and bought some grass, which we refer to it maybe as marijuana or grass, and he referred to it as grass, came back out into the car and they smoked a cigarette or two of this grass and they they left there and went down to Hazard and bought some gas and maybe some oil. I don’t remember now where they said oil or not, but anyway, he did say some gas, and came back and above Lightning’s place there at Jeff this fellow was hitchhiking. They stopped and picked him up and he asked them to take him to Cumberland, Kentucky and he said they told him they would if he would buy them some gas. And he said, T will,’ he would buy them some gas. So he said they came down through .... Just one minute, now. Did he identify that hitchhiker that they picked up?
“A. No, he said he didn’t know his name. I asked him did he know who he was. He said he didn’t.
“24. All right, go ahead.
“A. He said they came on up through Whitesburg and along up the road somewhere along the line, why, the fellow said he had a gun under his belt, and they came on to Whitesburg, up on the mountain. And I asked him, I said, ‘Well, do you know where this Weber’s Sausage place is?’ And they said, ‘No, we don’t know, and we didn’t recognize it or pay any attention to it as we came by, but we did come up a steep part of the mountain and it leveled off, and we came out a little ways and pulled off the right side of the road and me and this boy driver got out of the car, went around to the back,’ and then the boy that was driving got back in the car before he did. And when he came back to the car this fellow they had in the back, which later we learned his name was Boggs, had a rag or something around his neck choking him, and he asked him what he was doing and he said ‘Shut up or I’ll kill you, too.’ Then he said Boggs took the Trent boy— which we later found his name — out of the car and rolled him over the bank, but while he was rolling him over the bank he jumped in the car and started it and tried to put it in gear, just started it, and Boggs came back and got in the car with him and they came on towards Cumberland, or went on towards Cumberland. On the other side of the mountain the Boggs boy told him to stop and let him drive, and the Boggs boy, he started driving at that point and drove on into Cumberland, and there in Cumberland they run into a building or backed into a building and then was picked up by the city police, deposited there and lodged in jail in Cumberland.
“25. Now, did you have some further interrogation of the defendant Rachel?
“A. Well, I asked Rachel did he have any part in killing this boy, and he said, ‘Yeah, I helped choked him.’ And when Murrell Harrison .... Well, I knew it was a . since it started in Perry County and the man was throwed out on the Whitesburg Mountain in Letcher County, then I knew that I would have to have some help, because the jurisdiction line was in Harlan, so we had Vanover to call the State Police. So Detective Harrison and Trooper Jarvis came and we went back to the building and took the statement again of Rachel. And he told it just about everything he told me excepting about the choking, and I asked Detective Harrison to ask him didn’t he tell me or did he tell me that he helped choke him and he did, he asked him that question, and Rachel said he did.”

Rachel later was interrogated by a state detective and signed the following written statement:

“A. My name is Danny Gale Rachel. I’m 19 years old and attended school through the 8th grade. I give this statement to Detective M. J. Harrison and Trooper Ronnie Jarvis, known by me to be members of the Kentucky State Police, and present also is Harlan County Sheriff Walden Holbrook. I am giving this statement free and voluntarily, without any threats or promises having been made toward me. I have had a statement of my rights read to me and I understand these rights.
“Me and Mack Trent, Jr. were down at Lightning’s at the beer joint. Mack went into the back of the place where they dance and bought some grass. We left and went riding around and smoked the grass. We went to Hazard and got some gas and two quarts of oil and came back above Lightning’s and picked up this man who was hitchhiking. I didn’t know him then but I now know his last name is Boggs. It was about 11 to 11:30 when we picked him up, and Boggs asked us to take him to Cumberland. We came through Whitesburg and across the mountain on U.S. 119. Boggs kept talking about having a gun in his belt, and Boggs told Trent to pull off at the next wide place. And he pulled off the road and I got out and Trent got out and got back in the car first. I walked around the car to the door and Boggs had a piece of cloth around Trent’s neck choking him, and when Boggs turned him loose he went limp. I said, ‘What are you doing?’ and Boggs said, ‘Shut up or I’ll kill you.’ Boggs then got Trent out of the car and rolled him over the hill. I jumped in the car and started the car up. I was trying to get the car in gear but before I could get started Boggs got back in the car. He told me to go to Cumberland and I started driving fast, and before we got off the mountain Boggs told me to pull over and let him drive. I was going to wreck the car and try to get away. Boggs drove on into Cumberland and ran the car into the back door of the hardware . store. He backed out and the police stopped us in front of the police station. Before the choking took place Trent was driving, I was sitting in the right front and Boggs was sitting in the left rear. There had been no fuss or argument prior to the choking. We were all drinking and me and Trent had smoked about five joints of pot.
“Q. Did you state previously to Sheriff Holbrook and Mr. Vanover, the turnkey, that you choked Trent also?
“A. Yes, I did.
“Q. Why did you make that statement?
“A. Because Boggs was present and I was afraid.
“Q. Why didn’t you tell the Cumberland Police about the choking this morning when you were picked up ?
“A. Because Boggs was present and I was afraid.
“I have read my statement consisting of two pages, and it is true to the best of my knowledge.
“/s/ Danny G. Rachel “7/21/73”

Boggs was interrogated by the state detective and signed a written statement acknowledging that he choked the deceased and that “Rachel held his hands”. The court directed that that portion of Boggs’ statement referring to the fact that “Rachel held his hands” be deleted. When read to the jury, Boggs’ statement was as follows :

“A. My name is George Bishop Boggs. I am 28 years old, completed the ninth grade in high school. I give the following statement to Detective M. J. Harrison and Trooper Ronnie Jarvis, known to me to be members of the Kentucky State Police, freely and voluntarily. No threats or promises have been made to me. I have had a statement of my rights read to me and understand these rights.
“I started drinking about 1 P.M. yesterday and went to Hazard with two girls. Polly is one of their names. I don’t know the other one’s name, but they work in Nancy’s Bar in Cumberland, Kentucky. I remember riding around in a Chevrolet, a red one. It was the car the City Police now hold in Cumberland. Me and Danny and this other guy, we were drinking. Me and Danny and the other guy pulled off the road on the side of the mountain on U.S. 119 toward Whitesburg. I choked the other fellow. I choked him and he quit moving, and I rolled him over the hill. We didn’t return. I was driving the car, and we drove to Cumberland. We started to turn around and hit a door and the police took us to jail. We had no intentions to break in the place. I can’t think of any reason why I choked the man.
“I have read my statement, consisting of one page, and it is true to the best of my knowledge.
“/s/ George Boggs “Date: July 21, 1973”

Both Rachel and Boggs moved for separate trials on the grounds that they would be prejudiced on a joint trial because their defenses were antagonistic. Neither Rachel nor Boggs testified. Boggs’ counsel sought to exonerate him on the grounds that he was drunk and did not have a premeditated intent to kill. Rachel’s counsel argued to the jury that the only evidence against Rachel was the testimony of the sheriff as to Rachel’s admission but that this admission was made by Rachel only because he was afraid of Boggs as he later claimed in his statement to the state detective.

Prior to the adoption of the Criminal Rules, Section 237 of the old Criminal Code provided:

“If two or more defendants be jointly indicted for a felony any defendant is entitled to a separate trial.”

This Rule was changed by the adoption of RCr 9.16 which now provides:

“If it appears that a defendant or the commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment or information or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires. * * *

Whether a separate trial should be granted is a matter within the sound discretion of the trial judge. Before a jointly indicted defendant is entitled to a separate trial, he must timely demonstrate to the trial judge that he will be prejudiced by a joint trial. Bunton v. Commonwealth, Ky., 464 S.W.2d 810 (1971); Allee v. Commonwealth, Ky., 454 S.W.2d 336 (1970).

While there is some authority for the proposition that severance should be granted when the defenses of those jointly indicted are antagonistic, see 75 Am.Jur.2d, Trials, § 21, we have never held that severance is required, as a matter of law, in such cases.

The first reference to the subject of severance after the adoption of the Criminal Rules came in Hoskins v. Commonwealth, Ky., 374 S.W.2d 839 (1964). Hoskins presented a contention that a severance should have been granted because evidence was introduced which was competent as to one defendant but incompetent as to another. We held that fact alone did not require a severance and added “ordinarily there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one tends directly to incriminate the other, e. g., one defendant’s admissions directly implicate the other.”

This language in Hoskins, supra, was used only to suggest examples of the kinds of additional factors which when coupled with the introduction of evidence competent as to one defendant but not as to another might require a separation of trials. Hoskins did not hold, or even suggest, that antagonistic defenses of persons jointly indicted, standing alone, would necessarily result in prejudice in case of a joint trial.

We next decided Underwood v. Commonwealth, Ky., 390 S.W.2d 635 (1965), in which there was an allegation of error for failure to grant separate trials because the defenses were claimed to be antagonistic in that one defendant testified while the other did not take the stand.

In Underwood we cited Hoskins with approval and stated:

“ * * * It is our view that this is not the quality of antagonistic interest as would require separate trials, even if it could be said to be antagonistic at all. * * * »

Underwood does not hold that separate trials must be granted when the defenses are antagonistic.

The next case involving separation of trials was Tinsley v. Commonwealth, Ky., 495 S.W.2d 776 (1973). In Tinsley we upheld the refusal of the trial judge to grant a separation of trials but we stated therein:

“In order to justify the granting of a severance, it must appear that the defendants have antagonistic defenses, or that the evidence of one defendant tends to incriminate the other. * * *

Underwood was cited as authority for the statement.

We have reviewed these cases to point out the fallacy in the appellant’s argument that the trial court erred as a matter of law by refusing to grant separate trials because the defenses were antagonistic.

There may be some inherent disadvantage to one defendant if he is required to be tried jointly with a codefend-ant. As pointed out, our previous Criminal Code gave any defendant in a felony case an option to demand a separate trial. When the present Criminal Rules were adopted, the matter of separation of trials was left to the discretion of the trial judge. That the defenses of jointly indicted persons may be, in some respects, antagonistic or that the testimony of one or both of them may directly implicate the other are only factors for the trial judge to consider in making his determination as to whether the defendants will be prejudiced by a joint trial. If upon the consideration of the case a trial judge orders a joint trial, we cannot reverse unless we are clearly convinced that prejudice occurred and that the likelihood of prejudice was so clearly demonstrated to the trial judge as to make his failure to grant severance an abuse of discretion.

In the present case we do not find any abuse of discretion and we are not convinced that either Rachel or Boggs was prejudiced by the joint trial.

Both Rachel and Boggs contend the statements made by each of them prior to trial incriminated the other and the admission of those statements in evidence at the trial in which neither of them testified was error. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Bruton held that the admission into evidence of a confession of a defendant who did not testify at trial denied the right of confrontation to his codefendant in a case where the confession implicated the code-fendant.

This case is distinguishable from Bruton. Boggs confessed to his part in the crime and never recanted. Rachel made a statement to the sheriff admitting his participation in the homicide but later made a statement to the state police detective in which he admitted his presence at the scene of the crime but denied any actual participation. He claimed his earlier confession was induced through fear of his codefendant.

In any event the statement of Boggs did not implicate Rachel in the crime to any greater extent than Rachel’s own statement. Rachel’s statement did not implicate Boggs to any greater extent than Boggs’ own statement. Cf. Bunton v. Commonwealth, Ky., 464 S.W.2d 810 (1971); Taylor v. Commonwealth, Ky., 461 S.W.2d 920 (1970); United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2nd Circuit, 1968).

The state detective was permitted to read to the jury the statements of Rachel and Boggs from a thermofax copy rather than the original over defense objections that the copy was not the best evidence of the statement. There was no proof that the original was lost or destroyed.

At a hearing held out of the presence of the jury concerning the admissibility of the statements, the copies were inspected by defense counsel and no objection was made on account of the absence of the original statement. The officer who testified was present when the statements were given, and he testified that the ther'mofax copy was a true and exact copy of the original and that the copy was made from the original in his presence. Counsel for Boggs and Rachel do not suggest that the document in court was not a true and exact copy of the original document nor was any proof offered to that effect.

The reasons for the best evidence rule, dictated by common sense and long experience, were summed up by Wigmore as follows :

“As between a supposed literal copy and the original, the copy is always liable to errors on the part of the copyist, whether by wilfulness or by inadvertence; this contingency wholly disappears when the original is produced. Moreover, the original may contain, and the copy will lack, such features of handwriting, paper, and the like, as may afford the opponent valuable means of learning legitimate objections to the significance of the document. (2) As between oral testimony, based on recollection, and the original, the added risk, almost the certainty, exists, of errors of recollection due to the difficulty of carrying in the memory literally the ten- or of the document.”

4 Wigmore on Evidence, § 1179, Third edition.

Where a photo copy of the original is produced, there is no chance of a mistake upon the part of the scrivener in copying it, and exact replicas of handwriting and figures are produced. In the absence of some showing that the copy was altered or otherwise not an accurate copy —or that the watermark or quality of the original paper was an important evidentia-ry factor, there does not appear to be any real reason for distinguishing between a photo copy and a duplicate original although such a distinction prevails in most jurisdictions. Richardson, Kentucky Law of Evidence, Chapter 33.7 and 4 Wigmore, Evidence, § 1234; Chadbourn Revision, 1972.

KRS 289.091(8) provides that photo copies of certain commercial records shall be regarded as originals.

The admission of the thermofax copies under the circumstances of this case was not error.

Other alleged grounds of error have been carefully examined and we find that they are either (1) without merit or (2) have not been properly preserved for review.

The judgment is affirmed.

All concur.


author: ONION, Presiding Judge.

text:
    Robert Lee ROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 49994.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Michael M. Phillips, Angleton, for appellant.
    Ogden Bass, Dist. Atty., and Thomas W. Watson, Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. Appellant pled guilty before the court on April 24, 1972, to the offense of felony theft and was assessed punishment at three (3) years’ confinement. The imposition of the sentence was suspended, and the appellant was placed on probation subject to certain conditions of probation. Among the conditions of probation, appellant was to:

“A. Commit no offens.e against the laws of this State or of any other State or of the United States;
“D. Report to the probation officer as directed on this date and the 24th day of each month hereafter;
ífí * * * ijc
“H. . . . Pay to the probation officer a fee of $10.00 on the first Monday of each month during the probation period for probation supervision;
⅜ ⅜ ifc ⅜ ⅜

The State filed a motion to revoke probation on July 18, 1973, alleging that the appellant had violated condition (D) of his probation in that he had failed to report to the probation officer as directed on the 24th of December, 1972, and January, February, March, April, May and June, 1973. It was further alleged that appellant had violated condition (H) of his conditions in that he did not pay a fee of $10.00 on the first Monday of December, 1972, and January, February, March, April, May, June and July of 1973 for probation supervision.

The record reflects that the court appointed appellant an attorney and a hearing was set for July 24, 1973, but no hearing was had on that date. An amended petition for revocation of probation was filed by the State on July 1, 1974 (nearly one year after the original petition). The State alleged in the amended motion that appellant had violated conditions (D) and (H) in the identical manner that the original motion to revoke had alleged. It was further alleged by the State that condition (A) had been violated as follows:

“In that on or about the 28th day of March, 1974, in the County of Brazoria and State of Texas, Robert Lee Ross, was duly and legally convicted in the Justice Court of Brazoria County, Texas, Precinct #6, in cause number 74 R 280 for the offense of Assault.

A hearing on the amended motion to revoke probation was conducted on August 28, 1974. At the conclusion of the hearing, the court found that appellant had violated conditions (A), (D) and (H) of his probation, and appellant’s probation was revoked.

Appellant urges the court abused its discretion in finding the appellant failed to report as directed for the months of January through June, 1973, because the probation officer changed the reporting requirements without the authority of the court. Appellant relies upon a travel permit given by Probation Officer C. B. Robertson to the appellant authorizing him to travel to Key West, Florida and remain there from December 4, 1972, to July 1, 1973, to work on a shrimp boat. The “travel permit” concluded with the requirement “. and will report to Probationer (sic) Officer not later than the day after date of return to Brazoria County.”

Robertson testified that while he did issue such “travel permit” and did not expect the appellant to report in person he did give blank report forms to be used for reporting and for compliance with condition (D) while appellant was in Florida. He further related that the appellant did not report during the months alleged in the revocation motion, and he was unable to locate the appellant during this period of time.

Appellant testified he knew he was supposed to report to his probation officer while he was in Florida and acknowledged that he had been given blank reporting forms, but such forms had been lost in a storm when a twelve foot wave hit his boat. He related that without the forms he did not know the address of the probation officer and could not report or pay his probation fees. He conceded on cross-examination that he was aware that the Bra-zoria County Courthouse was located in Angleton.

Although the travel permit did instruct the appellant to report the day after his return to Brazoria County, it did not alter appellant’s responsibility to report on the 24th day of each month under condition (D) of his probationary terms. We do not understand appellant to urge that he had relied upon such statement in the travel permit for his failure to report. His testimony was to the contrary.

It is well established that in revocation proceedings the trial judge is the sole trier of the facts, the credibility of the witnesses and the weight to be given the testimony. Diaz v. State, 516 S.W.2d 154 (Tex.Cr.App.1974); Aguilar v. State, 471 S.W.2d 58 (Tex.Cr.App.1971), and cases there cited. In the instant case the trial judge obviously chose to disbelieve appellant’s explanation as to why he failed to report when he knew he was supposed to do so.

The evidence was sufficient to support the revocation for failure to report to the probation officer as alleged in the revocation motion. Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969).

We need not discuss the other grounds upon which the trial judge based the revocation in view of the fact that the revocation order can be supported alone by the failure to report violation discussed above. In view of the fact, however, that this court has repeatedly cautioned trial judges, prosecutors and probation officers about the difficulties inherent in relying exclusively upon evidence of a conviction to support revocation based upon the probationary condition prohibiting the commission of a penal offense, Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974); Cannon v. State, 479 S.W.2d 317 (Tex.Cr. App.1972); Scott v. State, 516 S.W.2d 196 (Tex.Cr.App.1974); Mason v. State, 438 S.W.2d 556 (Tex.Cr.App.1969) ; Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App.1971); Hall v. State, 452 S.W.2d 490 (Tex.Cr.App.1970), we will note appellant’s contention regarding the use of an assault conviction to support the revocation. It is observed that the jurat on the complaint upon which the conviction was based was undated. This invalidates the conviction. See Shackelford v. State, 516 S.W.2d 180 (Tex.Cr.App.1974). Further, there was no showing as to the date of the offense so as to show that it occurred within the probationary period. Again, we caution against exclusive reliance upon the use of convictions to show the commission of a penal offense in violation of probationary conditions.

Appellant contends he was denied a speedy trial because of an agreement by the State to recommend dismissal of the motion to revoke was not fulfilled.

There can be no question that a probationer is entitled to a “speedy trial” with regard to revocation proceedings. McClure v. State, 496 S.W.2d 588 (Tex.Cr.App.1973); Hilts v. State, 476 S.W.2d 283 (Tex.Cr.App.1972). However, in the case at bar, the record does not establish that the agreement upon which appellant relies ever existed. Applying the “balance test” of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the factors there mentioned we cannot conclude that the appellant has been denied a speedy trial.

As to appellant’s claim that he was denied the opportunity to perfect his bill of exception relating to the above mentioned agreement, we find it has no merit. After the assistant district attorney denied that he was a party to any such agreement or knew of any agreement, appellant’s counsel sought to ask at one point if the fact that there had been some delay indicated some agreement might have been reached, and at another juncture sought to ask if the prosecutor had ever entered in plea bargaining on revocations of probation on other occasions. Each time the objection was sustained and there was a denial of the request to make a bill of exception at that time. There was no further effort made to perfect a bill of exception or proffer proof in accordance with Article 40.09, Sec. 6(d)(1), Vernon’s Ann.C.C.P., to show what the testimony would have been if he had been permitted to elicit an answer to the questions. Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974). See also Pegoda v. State, 470 S.W.2d 675 (Tex.Cr.App.1971). Further, we express doubt as to the materiality of the inquiry sought. See Smith v. State, 460 S.W.2d 141 (Tex.Cr.App.1970). Even if the witness had answered each question in the affirmative, it would not have established the fact of an agreement in this case.

Appellant finally argues that the State failed to prove the appellant was on probation at the time the alleged violations of his conditions of probation occurred. It is asserted by appellant that his probation was granted April 24, 1972, and he appealed to the Court of Criminal Appeals. Appellant argues that the State had the burden of showing the appeal was dismissed or a mandate was handed down by the Court of Criminal Appeals in order to prove appellant was on probation at the time of the alleged violations.

An examination of the docket sheet reveals that an order was entered dismissing appellant’s appeal on November 27, 1972. The dates alleged in the motion to revoke averring that appellant failed to report are subsequent to the dismissal date. This court has previously held that where an appeal is taken the terms of probation do not commence until the mandate of this court is issued. Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.1973). The same reasoning would be applicable in determining the terms of probation would commence at the time that an order dismissing an appeal was entered.

This situation is similarly analogous to a situation wherein an appellant contends that since it is possible he may have terminated his term of probation before the original probationary period under Article 42.12, Sec. 7, Vernon’s Ann.C.C.P., the State must prove he was still on probation when the offense is alleged to have occurred. We held under this situation in Scott v. State, 516 S.W.2d 196 (Tex.Cr.App.1974), that the defendant had the burden to show he was not on probation at the time the offense was alleged to have occurred. In the present case, with evidence as to when appellant was originally placed on probation as well as the time in which his appeal was dismissed, we hold that appellant had the burden to show he was not on probation.

The judgment of the trial court is affirmed.

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

      .We recognize that factors set forth in Barker v. Wingo, supra, are not regarded as talismanie. See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).

      . We observe that appellant’s speedy trial contention was raised for the first time on appeal. In fact, he filed two motions for continuance on the date of the revocation hear-


author: ODOM, Judge. MORRISON, Judge

text:
    John L. ABRON, Appellant, v. The STATE of Texas, Appellee.
    No. 49698.
    Court of Criminal Appeals of Texas.
    April 23, 1975.
    Rehearing Denied June 18, 1975.

      James A. Mills, Jr., Court appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hag-ler, Frank Watts, Joh Sparling and Stephen P. Tokoly, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for the offense of rape; punishment, death, commuted to life imprisonment.

In his first ground of error, appellant contends the trial court erred in refusing to permit him to ask prospective jurors certain questions regarding the existence of racial prejudice. The appellant was black and the victim was white. Appellant asserts he was injured as a consequence of such refusal because he could not intelligently exercise his peremptory challenges.

The voir dire of the jury panel is before us for review. The record shows that appellant was permitted to ask general questions of the jury panel such as whether they would be influenced by the fact that appellant was black, but he was not permitted to question the veniremen regarding possible race prejudice. Then, counsel for the appellant tendered to the court several questions that he wanted to ask each prospective juror. Among those questions were the following:

“ . . . would the fact then that this defendant is a Negro and the complaining witness a white woman, if this is the situation, cause you to have a bias or prejudice against the defendant? Would this bias or prejudice affect your fair and impartial consideration of the evidence in determining whether or not the State has proven the defendant guilty beyond a reasonable doubt? Would this bias or prejudice affect your fair and impartial consideration in determining what the proper punishment should be in this case? Can we assume that this bias or prejudice against the defendant would not be present if the evidence were that the complaining witness was another Negro, or that the defendant was a white person? . . . ”

After a discussion of what type questions would be permitted, appellant’s counsel requested the court to clarify whether he could inquire into:

“Whether or not there would be a difference in their mind in either the guilt or innocence or punishment, the fact that he’s a Negro and she’s white?”

to which the court responded:

“That’s specifically what I don’t want you to ask. . . . ”

The State argues that the general questions permitted by the trial court regarding race prejudice constituted a sufficient inquiry into the matter, fully complying with Alderidge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Both Al-deridge and Ham were reversed for failure of the trial court to ask prospective jurors questions requested by defense counsel regarding race prejudice.

The cases of Alderidge and Ham were decided in the context of a jury selection procedure in which it was the duty of the judge to ask questions of the potential jurors. The issue in both cases was whether the judge’s refusal to ask questions requested by counsel for the defendant violated the due process clause of the Fourteenth Amendment. In Texas, both counsel for the defendant and for the State are entitled to directly question the jury on voir dire. Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267. This procedural difference is the consequence of the defendant’s right to counsel guaranteed by Article 1, Section 10 of the Bill of Rights to the Texas Constitution, Vernon’s Ann. St. E. g., Burkett v. State, Tex.Cr.App., 516 S.W.2d 147; De La Rosa v. State, Tex.Cr.App., 414 S.W.2d 668; Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629. In addition, this right is afforded statutory protection under the provisions of Article 35.17, Vernon’s Ann.C.C.P., which governs the manner in which the right is to be exercised.

Questions asked of potential jurors are to enable intelligent exercise of peremptory challenges and to establish a basis for a challenge for cause. In Mathis, supra, 322 S.W.2d at page 631, this Court said:

“It has been long the holding of this court that the constitutional guarantee of the right to be represented by counsel (Bill of Rights, Art. 1, Sec. 10, Vernon’s Ann.St.Const.) carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel’s judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury.

Applying the constitutional principles discussed in Alderidge, Ham, and the decisions of this Court, when it is contended that a question was not permitted which would have enabled the intelligent exercise of peremptory challenges, both the requirements of the Due Process Clauses of the United States Constitution and the right to counsel guaranteed by the Texas Constitution must be satisfied. Therefore, even if the State’s contention is valid that the action of the trial court complied with Alder-idge and Ham, there remains the issue of whether our constitutional and statutory standards were met.

Not every restriction of the conduct of the jury voir dire infringes upon a defendant’s right to effective assistance of counsel. This Court has consistently held that the trial court has wide discretion over the course of the voir dire of the jury panel. E. g., Hernandez v. State, Tex. Cr.App., 508 S.W.2d 853; 35 Tex.Jur.2d, Jury, Sec. 117. (1) Reasonable time limits may be placed on the voir dire examination. Barrett v. State, Tex.Cr.App., 516 S.W.2d 181; De La Rosa v. State, supra; Plair v. State, supra. (2) Repetitious or vexatious questioning may be prevented. Smith v. State, Tex.Cr.App., 513 S.W 2d 823; cf. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816. See also Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). (3) Questions asked in an improper form may be disallowed. E. g., Hernandez v. State, supra; Hunter v. State, Tex.Cr.App., 481 S.W.2d 137. And (4) the court may restrict inquiry into the personal habits of jurors as opposed to inquiry into personal prejudices or moral beliefs. Densmore v. State, Tex.Cr.App., 519 S.W.2d 439. Furthermore, prejudice or injury must be shown to demonstrate reversible error when the right to propound questions on jury voir dire is restricted. Hernandez v. State, supra; Burkett v. State, supra.

An issue similar to the one before us was presented long ago in Fendrick v. State, 39 Tex.Cr.R. 147, 45 S.W. 589 (1898). There a black man had allegedly murdered a white man. The trial court allowed general questions but refused to permit the defendant’s counsel to ask members of the venire a question probing for a particular type of racial prejudice. This Court said :

“The tendency of this question was simply to probe the consciences of the respective jurors to ascertain whether or not they had any prejudice against appellant, he being a negro, and having killed a white man, under the peculiar circumstances of the case; and, in our opinion, the court should have permitted the jurors to answer the question. If the answer had not shown prejudice on the part of said jurors, or any of them, still it may have furnished appellant some basis upon which he might have exercised his right more intelligently to avail himself of his peremptory challenges.”

As in Fendrick, counsel in the instant case was permitted to ask general questions regarding race prejudice, but the court did not allow him to ask more specific questions presenting the matter of prejudice upon the very issue involved in the case. Answers to the more specific questions regarding racial prejudice would have been valuable to appellant because they could have furnished a basis for the intelligent exercise of peremptory challenges. Deprivation of this valuable right is a showing of injury sufficient to necessitate reversal. Fendrick v. State, supra. Cf. Burkett v. State, supra. The appellant was prevented from asking questions essential to the intelligent exercise of his peremptory challenges.

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

DOUGLAS, Judge, concurs in the result.

MORRISON, Judge

(concurring).

While I agree that this conviction cannot stand, I feel impelled to say a word in defense of the trial judge.

It appears to me that the situation in the case at bar arose from a failure to communicate between counsel and the trial court and that the trial court was laboring under the impression that counsel for appellant was attempting to commit the venire to a course of conduct prior to trial. To illustrate, at one point during the discussion about what questions concerning racial prejudice counsel would be permitted to ask, the trial court stated:

“Let the record reflect that the Court has instructed the defense attorney not to predicate questions with phrases such as ‘if the evidence should show’, setting up different fact situations, and asking the jurors to compare fact situations, where they would give certain punishment if certain facts were shown to be true. The Court would further indicate to the defense attorneys that they are free to ask general questions, such as whether or not the fact that the defendant is a black man would affect their verdict, etc. The Court will not permit comparison of fact situations. In regard to questions he proposes to ask in regard to the prejudice they may have against the defendant because he’s a Negro and the complaining witness is a white person, the Court’s ruling is as stated. You can ask them if they have any prejudice, but I don’t want you to ask whether or not they would give more or less punishment. You can ask general questions, if they would be prejudiced by that situation. I will permit that.”

It can further be observed that counsel for appellant was permitted to ask such questions as “Would you have any prejudice against the defendant because he is a colored male or can you assure me you will judge him on the facts of this case irregardless of the color of the complaining witness ?”

I reluctantly concur.

      . The United States Supreme Court, speaking through the first Mr. Justice Harlan, said the right to challenge is “one of the most important of the rights secured to the accused” and that “[a]ny system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned.” Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894).

      . “Art. 35.17 Voir dire examination
      “1. When the court in its discretion so directs, except as provided in Section 2, the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel.

        “2. In a capital felony case, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court.”

      . The exercise of this discretion, however, “does not embrace the right to deny the privilege of having counsel examine the veniremen.” Plair v. State, supra, 279 S.W. at 269. “The discretion is abused when a proper question about a proper area of inquiry is prohibited.” Smith v. State, Tex. Cr.App., 513 S.W.2d 823, 827.

      . Cf. also Lester v. State, 2 Tex.App. 432 (1877).


author: DALLY, Commissioner.

text:
    Rafael HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 49949.
    Court of Criminal Appeals of Texas.
    June 4, 1975.

      Gary J. Hill, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Kevin E. Shannon, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the burglary of a habitation; the punishment assessed by the court is imprisonment for five years.

The only issue presented is whether the court erroneously admitted evidence obtained by an El Paso police officer after the warrantless arrest of the appellant.

The appellant urges that his rights under the Fourth Amendment to the Constitution of the United States were violated when he was stopped and detained by Officer Marcus Valero and therefore, the court erroneously admitted in evidence a medallion found in the appellant’s possession and evidence concerning a television set which was seized. Both the medallion and the television set had been stolen in the burglary.

While on patrol with his partner at 3 :00 p. m., Valero saw an automobile parked in front of a motel; in the open trunk he saw a piece of furniture partly wrapped with a blanket. When he first saw the automobile Valero recognized the appellant, a passenger, and Jesus Chavez, the driver. The officers made a U turn and started back toward the motel. They met the automobile they had seen parked and made another U turn; as they followed the automobile Val-ero could see that the piece of furniture in the trunk was a console television set. When they overtook the automobile they signaled for the driver to stop and he did. Valero approached the automobile; he observed in plain view on the rear floorboard an adding machine that looked like the adding machine that he knew had been stolen from a lawyer’s office in a recent burglary. All five men in the automobile were then placed under arrest.

No traffic offense was committed, and Valero did not have a warrant or any information concerning the television set which had been taken in a burglary of a habitation about one hour before the officer observed it in the trunk of the automobile. We must determine whether stopping the automobile and detaining the appellant and the other four men was lawful.

Although an “inarticulate hunch” is not sufficient to permit an officer to stop and detain a person for investigation, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972), the protection of the Fourth Amendment against unreasonable searches does not prevent a police officer in appropriate circumstances from stopping and detaining a person to investigate suspected criminal behavior even though there is not probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). To determine whether an officer is justified in making such an intrusion upon the freedom of the person stopped and detained, the court must find that the officer in light of his experience and general knowledge had specific and articulable facts which taken together with rational inferences from those facts would reasonably warrant the intrusion on the freedom of the person stopped for further investigation. Terry v. Ohio, supra; see also Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Dorsey v. United States, 125 U.S.App.D.C. 355, 372 F.2d 928 (1967); United States v. Owens, 472 F.2d 780 (8th Cir.1973).

Officer Valero was assigned to the Tactical or Intelligence Unit of the Burglary Bureau of the El Paso Police Department. It was his duty to obtain names, addresses, license numbers, descriptions of vehicles, and other information about burglaries that had been committed and to obtain information about persons known to be committing or suspected of committing burglary and narcotic offenses. During the morning of the day he arrested the appellant Valero had a discussion with a fellow police officer about a recent burglary of a lawyer’s office; from this discussion Val-ero knew that an adding machine of a certain color and brand had been stolen. Val-ero had arrested the appellant on a prior occasion for shooting at a police vehicle, and Valero knew that the appellant was “a known burglar” and he also “knew for a fact that [the appellant] was a drug addict.” Valero recognized the appellant and the driver when he first saw them, and before the automobile was stopped he had recognized all five of the men in the automobile.

When the officer saw the appellant, a known burglar and narcotic addict, in the automobile parked in front of a motel with a console television set partly wrapped in a blanket in the trunk, he had specific and articulable facts which, in light of his experience and general knowledge when taken together with rational inferences to be drawn from those facts, were sufficient to permit him to stop and detain the automobile. He had a sufficiently reasonable belief that criminal activity was occurring to stop and detain the automobile to make further investigation. See United States v. Santana, 485 F.2d 365 (2nd Cir.1973); United States v. Leal, 460 F.2d 385 (9th Cir. 1972); United States v. Fallon, 457 F.2d 15 (10th Cir.1972); State v. Rankin, 477 S.W.2d 72 (Mo.Sup.Ct.1972). When the officer approached the stopped vehicle and saw in plain view in the automobile the adding machine which he believed was stolen from the lawyer’s office he had probable cause to arrest the occupants of the automobile. See Onofre v. State, 474 S.W.2d 699 (Tex.Cr.App.1972) ; Jefferson v. State, 452 S.W.2d 462 (Tex.Cr.App.1972) ; Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967). The court did not err in admitting the medallion in evidence and in admitting testimony concerning the television set seized.

So there will be no misunderstanding, we are not holding that a police officer has the right to stop for investigation any person that he knows to have once been involved in criminal activities or anyone who associates with such a person. Sibron v. New York, supra. This Court will not, nor should any court, tolerate unfounded detention or harassment of citizens. Such an encroachment on freedom as here occurred will only be allowed where the totality of the circumstances can justify a reasonable suspicion of wrongdoing. We reiterate the words of the Supreme Court of the United States:

“Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.” Terry v. Ohio, supra, at 88 S.Ct, p. 1876.

The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    Henry Lee BOOKER, Appellant, v. The STATE of Texas, Appellee.
    No. 49958.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Leon A. Smith, Rockwall, for appellant.
    W. I. (Bill) Lofland, County Atty., Rockwall, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of the felony offense of escape. See V.T.C.A. Penal Code, Sec. 38.07. Punishment was assessed at eight years.

The record reflects that on January 27, 1974, appellant was confined in the county jail of Rockwall County charged with the felony offense of burglary in four indictments. About 8:00 P.M. on that day, he and five other prisoners sawed through the bars of the jail cell in which they were confined and escaped. Appellant was rearrested the following day. Deputy sheriff and jailer B. L. Cantrell was in charge of the jail at the time of the escape, and had custody of the prisoners therein, including appellant.

In his first ground of error, appellant contends that the evidence is insufficient to prove that at the time of the alleged escape he was charged with a felony, or was in custody.

The district clerk of Rockwall County testified that the grand jury of that county, on January 10, 1974, presented into the district court four indictments charging “Henry Lee Booker” with burglary and that these indictments were pending in the district court of the county on January 27, 1974, and on the date of the trial.

W. J. Price, sheriff of Rockwall County, identified appellant as the Henry Lee Booker named as defendant in the burglary indictments. He testified that on January 27, 1974, appellant was under arrest on said charges and was confined in the county jail in the custody of deputy sheriff B. L. Cantrell, the jailer. He testified to facts showing that appellant and five other prisoners escaped from the jail about 9:00 P.M. on January 27th and that appellant was re-arrested the next day.

B. L. Cantrell testified that he was a deputy sheriff of Rockwall County and was in charge of the county jail on January 27. Appellant was at that time under arrest in his custody in jail for four felony indictments of burglary. He served supper to the prisoners, including appellant, about 7:30 that afternoon. About 9:00 P.M., when he went to the cell to pick up the supper dishes, he learned that appellant and others had cut out of their cell into the “runaround” and escaped through unlocked doors.

The evidence is sufficient to show that on January 27th, at the time of his escape, appellant was under arrest in jail in the custody of deputy sheriff and jailer Cantrell charged by indictment with the felony offense of burglary.

In his second ground, appellant states that the court erred in overruling his motion to quash the indictment, since it does not state facts sufficient to allege an offense under V.T.C.A. Penal Code, Sec. 38.07, supra, and is vague and uncertain.

The indictment alleges that appellant, in Rockwall County, Texas, on or about January 27, 1974, “did then and there intentionally and knowingly escape from confinement in the Rockwall County jail where he was in the custody of B. L. Cantrell Deputy Sheriff of Rockwall County, Texas, when he, the said defendant, had been arrested and charged with the offense of Burglary, a felony . . . ”

Checking this indictment with the requirements of V.T.C.A. Penal Code, Sec. 38.07, supra, for a third degree felony, we find that it sets forth, in plain and intelligible language, all of the elements required to constitute the offense of escape with such certainty as to enable the accused to know what he was called upon to defend against, and to enable him to plead the judgment in bar of any subsequent prosecution for the same offense. Moore v. State, Tex.Cr.App., 473 S.W.2d 523.

The second ground of error is overruled.

In his third ground, appellant contends that the punishment of eight years is in excess of the punishment authorized by statute for the offense of escape, since the evidence does not show that appellant was under arrest for, charged with or convicted of a felony or confined in a penal institution.

Sec. 38.07(c) provides that escape is a felony of the third degree where the accused is under arrest for, charged with, or convicted of a felony, or is confined in a penal institution. See footnote 1, supra. The evidence reflected that appellant was under arrest in the custody of the jailer charged with burglary, a felony. He was also confined in the county jail, which is a penal institution. See V.T.C.A. Penal Code, Sec. 1.07(a) (26).

V.T.C.A. Penal Code, Sec. 12.34 provides that the punishment for a conviction of a third degree felony shall be confinement for any term of not more than ten years or less than two years, and, in addition to imprisonment, a fine not to exceed $5,000 may be assessed. The punishment assessed by the jury is within the statutory range.

The third ground of error is overruled.

In his fourth ground, appellant states that the court erred in refusing to give his requested charge. In his fifth ground, he contends error in the court’s charge in failing to “track” the allegations in the indictment.

Appellant’s complaint under these two grounds is that since the indictment alleged that he escaped “from his confinement in the Rockwall County jail where he was in the custody of B. L. Cantrell, Deputy Sheriff of Rockwall County, Texas,” the charge permitting his conviction without requiring a finding that he had escaped from “confinement in the Rockwall County jail” was prejudicial error. Appellant’s timely filed objection and special requested charge adequately raised the contentions here made.

The court, after setting out the applicable provisions of Sec. 38.07 of the new penal code and defining the terms “custody,” “escape,” “penal institution,” “intention,” and “knowingly,” instructed the jury as follows:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, Henry Lee Booker, on or about the 27th day of January, 1974, in the County of Rockwall and State of Texas, as alleged in the indictment, did then and there after being arrested for an offense, to-wit, burglary, a felony, did intentionally or knowingly escape from custody of B. L. Cantrell, Deputy Sheriff of Rockwall County, you will find the defendant guilty of the offense of escape 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.’ ”

The indictment having expressly alleged that appellant escaped “from his confinement in the Rockwall County jail where he was in the custody of B. L. Cantrell Deputy Sheriff of Rockwall County,” the court was limited in its charge to the matters specifically alleged. Moore v. State, 140 Tex.Cr.R. 482, 145 S.W.2d 887; Gooden v. State, 140 Tex.Cr.R. 347, 145 S. W.2d 177; May v. State, 146 Tex.Cr.R. 115, 171 S.W.2d 488. See Turner v. State, Tex.Cr.App., 462 S.W.2d 9, remanded to the Court of Criminal Appeals on other grounds (death penalty) ; 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed.2d 858; aff’d after death penalty commuted, Tex.Cr.App., 485 S.W.2d 282. It 'is elemental that the charge must correspond to the allegations in the indictment supported by the evidence. The court erred in failing to submit the offense as alleged in the indictment. Turner v. State, supra; Graves v. State, 161 Tex.Cr. 16, 274 S.W.2d 555; Grooms v. State, 156 Tex.Cr.R. 504, 244 S.W.2d 229. See 31 Tex.Jur.2d, Instructions, Sec. 69, pp. 596, 597.

However, under the facts and circumstances of the case, we find that such error is not reversible. See Turner v. State, supra.

The statutes which require the court to deliver a charge to the jury setting forth the law applicable to the case are Arts. 36.-14, 36.15, 36.16, 36.17, and 36.18, Vernon’s Ann.C.C.P.

Art. 36.19, V.A.C.C.P., provides as follows :

“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.-16, 36.17, and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial . . . ”

Although the indictment alleged an escape from the Rockwall County jail, it also expressly alleged and gave appellant and his counsel ample notice of the accusation that at the time of the escape appellant was under arrest in the custody of deputy sheriff B. L. Cantrell. The statute on Escape, V.T.C.A. Penal Code, Sec. 38.07, supra, in (a) thereof, provides that a person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody. Subsection (c)(1) makes the escape a felony if the offense for which the accused is under arrest or charged with is a felony. The evidence shows without dispute or contradiction that at the time of the escape appellant was in the custody of deputy sheriff Cantrell, having been arrested and charged with the felony offense of burglary. While the court should have responded to appellant’s objection in submitting the case to the jury, we perceive no error “calculated to injure the rights of [the]” appellant or which prevented him from having “a fair and impartial trial.” Art. 36.19, V.A.C.C. P. See Miller v. State, Tex.Cr.App., 442 S.W.2d 340, 346; Turner v. State, supra; Quinn v. State, 164 Tex.Cr.R. 125, 297 S. W.2d 157.

In his sixth ground, appellant contends that the court erred in permitting Justice of the Peace Crawford to testify that after appellant was arrested following his escape he advised him of his rights in regard to giving any statement.

The record reflects that when appellant was arrested on January 28 he was immediately taken to the office of Judge Crawford, who advised him of the charge against him of escape, and explained certain legal rights involving the making of a statement. See Art. 15.17, V.A.C.C.P. At the trial, Crawford was permitted to testify concerning this warning over appellant’s objection that “it has no pertinence to this and highly prejudicial” to him.

The State was showing the arresting officer’s compliance with Art. 15.17, V.A.C. C.P., and, although the prosecution offered no evidence of any statement made by appellant, no error is shown. Even if error did occur, we fail to see how appellant was prejudiced thereby.

The sixth ground is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . As applicable here, this section reads:
      “Sec. 38.07 Escape
      “(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.
      * * * ⅜ ⅜
      “(c) An offense under this section is a felony of the third degree if the actor:
      “(1) is under arrest for, charged with, or convicted of a felony; or
      “(2) is confined in a penal institution.” Y.T.C.A. Penal Code, Sec. 38.01, Definitions, defines the terms “custody” and “escape” as follows:
      “(2) ‘Custody’ means detained or under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court.
      “(3) ‘Escape’ means unauthorized departure from custody.”

      . “ ‘Penal institution’ means a place designated by law for confinement of persons arrested for, charged with, or convicted of an offense.”


author: ROBERTS, Judge.

text:
    Henry Charles MORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 49578.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Gary E. Conrad and Kerry P. Fitzgerald, Dallas, on appeal only for appellant.
    Henry Wade, Dist. Atty., John H. Hag-ler, Kelly Loving & Norman Kinne, 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.

After our opinion in this cause was handed down on May 21, 1975, a supplemental record was filed. This supplement contained extension of time orders entered by the trial court, which were not contained in the original record, and such orders reveal that Appellant’s Brief was timely filed. Therefore, our opinion of May 21, 1975, is withdrawn and this opinion is handed down in lieu thereof.

The appellant was convicted by a jury of assault with intent to murder a police officer and the jury fixed his punishment at 40 years’ imprisonment.

The uncontroverted evidence is as follows. On the afternoon of June 14, 1973, Officer Charles Lee of the Balch Springs Police Department was leaving a training session at the Dallas County Courthouse. In the parking lot, he was confronted by the appellant who charged that Lee had dented his car. After a strained discussion during which Lee denied making any of the scratches on the door of appellant’s car but apologized in case he had, appellant demanded money for the damage to his car. At this point, Lee, in civilian clothes and in his private car, identified himself as a police officer and told appellant to stop bothering him. As Lee recorded appellant’s license number, the latter became angry and retrieved a small caliber pistol from his car. In the scuffle that followed, Lee received five bullet wounds.

Appellant first contends that the evidence that Officer Lee was engaged in the performance of official police duties was insufficient to sustain the conviction. Art. 1160a, Vernon’s Ann.P.C. (1969), under which appellant was prosecuted, provides:

“. . . Sec. 2. A person who assaults a peace officer with intent to murder while said officer is in performance of his official duty . . . .”

In the instant case, the disagreement between Lee and appellant admittedly grew out of a private dispute, unconnected with any of Lee’s official duties as a policeman. The State is compelled to contend, however, that Lee’s recording of appellant’s license number was an official police function.

Appellant has cited several cases, however, in which private altercations with police officers proved insufficient to sustain a conviction for assault on a peace officer in performance of his official duties.

In Jeanes v. State, 60 Tex.Cr.R. 440, 132 S.W. 352 (1910), this Court held that a constable who requested the accused to step aside for a private discussion of, so far as the record disclosed, a private matter which culminated in his being assaulted was not at the time of the assault in the performance of any lawful duty of his office. In Curlin v. State, 84 Tex.Cr.R. 602, 209 S.W. 666 (Tex.Cr.App.1919), the injured party was a justice of the peace who was assaulted by the defendant while walking on the sidewalk toward his office to “leave some papers.” Even though the defendant knew of the complainant’s status, this Court held that there was no evidence that the complainant “was discharging any official duty at the time, or attempting to discharge any such duty.” The conviction was reversed.

It is true that an off-duty policeman can still be engaged in the lawful discharge of his duties. In both Monroe v. State, 465 S.W.2d 757 (Tex.Cr.App.1971) and Wood v. State, 486 S.W.2d 771 (Tex.Cr.App.1972), the injured parties were police officers, in uniform, who were “moonlighting” as a nightclub bouncer and a parking lot attendant, respectively. But both were injured as they attempted to make lawful arrests of defendants on other grounds. And in Thompson v. State, 426 S.W.2d 242 (Tex.Cr.App.1968), an off-duty policeman in plainclothes who was “moonlighting” as an apartment building security guard was attempting to break up a rowdy party when he was assaulted. In all three of these cases, this Court held that the particular activity in which the peace officers were engaged when they were assaulted was in the lawful discharge of their duties as policemen. Their activities were certainly tantamount or analogous to such duties.

In fact, the on-duty/off-duty distinction is not important here. As was stated in Wood v. State, supra,

“It is the law in this state that a police officer’s ‘off-duty’ status is not a limitation upon the discharge of police authority in the presence of criminal activity,”

citing Monroe v. State, supra, and Simms v. State, 167 Tex.Cr.R. 315, 319 S.W.2d 717 (1958). Moreover, there was clearly cause for Lee to exercise his authority as a police officer at some point in his confrontation with the appellant. The record, however, is practically devoid of any mention of such performance of his official duty. It has even been said that a police officer is on duty 24 hours a day. Monroe v. State, supra. But, surely this statement does not abrogate the requirement of Art. 1160a that the officer be in the “performance of his official duty” at the time of the assault. Otherwise, all attacks on policemen would come within the statute and the quoted language would have no meaning at all.

In the instant case, Officer Lee’s conduct was more like that of the peace officers in the older cases, who were held to have been involved in private business. In both Jeanes and Curlin and in the case at bar, the peace officers were on their way to or from some official duty; and Lee’s altercation with the appellant was no more official than the victims’ activities in the older cases. Any private individual in Officer Lee’s situation might be expected to record appellant’s license number.

Nor can this deficiency in the proof be considered harmless error. Although the record would support a conviction for assault with intent to murder under Art. 1160 of the old Penal Code, the range of punishments provided therein is only two to twenty-five years. In the instant case, appellant received forty years for assault with intent to murder a peace officer under Art. 1160a, which provides penalties of from two years to life. Thus, the error was clearly prejudicial to the appellant.

For the foregoing reasons, appellant’s first ground of error is sustained and the judgment below is reversed and the cause remanded.