author: REAVLEY, Justice. POPE, Justice

text:
    In the Interest of K, a baby girl.
    No. B-5242.
    Supreme Court of Texas.
    March 31, 1976.
    Rehearing Denied April 28, 1976.
    Donald A. Smyth, Brazoria, Sally Ray, Huntsville, for petitioner.
    Franklin L. Smith, County Atty., T. R. Bandy, Jr., Asst. County Atty., Corpus Christi, for respondent.
   REAVLEY, Justice.

In April of 1974 an unwed mother gave birth to a baby girl, whom we shall call K. The young mother was unable to care for the child, and she relinquished her parental rights to the Nueces County Child Welfare Unit of the Department of Public Welfare. The Child Welfare Unit took responsibility as soon as the baby was released from the hospital, providing her with foster care and locating suitable adoptive parents. The instant legal proceeding was initiated to terminate the parent-child relationship, to afford the father of the child an opportunity to be heard if he wished, and for the designation of the Child Welfare Unit as managing conservator of the child as a predicate for ultimate adoption.

S.D.A. is the child’s father — only in the sense of that relationship which is the biological consequence of erotic ecstasy on a summer night. After learning of the mother’s pregnancy, he showed no disposition to assist with her problem or expense, and within a month he was arrested for interstate transportation of a stolen vehicle and of a 14 year old girl. He has been confined in jail or penitentiary since October of 1973. After he was served with citation and the petition of the Child Welfare Unit, he filed his own petition for the voluntary legitimation of the baby girl and for the appointment of himself as her managing conservator. The trial court held a hearing on these two petitions. S.D.A. was present and testified. The State provided him with diligent counsel. Baby girl K was represented by her duly appointed guardian ad litem. The trial court found the father not to be a fit person to act as parent of the child and that the best interests of the child required the denial of his petition. Accordingly, the court granted the petition of the Child Welfare Unit and denied the petition of S.D.A. The Court of Civil Appeals affirmed. 520 S.W.2d 424. S.D.A. persists.

Our question is whether the rights of this biological father have been abused. He contends that he is entitled to the legitimation of the child and to full parental rights by virtue of the fact that he is the biological father. He further contends that those parental rights cannot be terminated except by proceeding under Sec. 15.02 of the Family Code and by proof that he has been guilty of some specific act or omission enumerated in Sec. 15.02(1). He finally argues that his contentions must be upheld by the Texas law if that law is to pass minimum requirements of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, which he says entitles him to be treated in precisely the same manner as if he had been married to the mother of K at the time of the child’s birth.

We first look to the statute in effect at the time of the hearing in 1974 to see if the trial court complied with the enactment of the Legislature. Title 2 of the Family Code at that time was in the form enacted in 1973 and effective on January 1, 1974. Acts of the 63rd Legislature, Regular Session, 1973, Ch. 543. Reference will be made below to the change in Title 2 which was made in 1975 after the hearing in this case.

Under the Family Code a “parent” is not necessarily an immediate progenitor of the child; the term applies only to those named in Sec. 11.01 of the Code who are entitled to a legal relationship with all of the rights, privileges, duties and powers over the child enumerated in Sec. 12.04. Absent a married relationship between the father and mother of the child, the father is not a “parent” unless by force of Secs. 12.02 and 13.01. A person may have formerly been a legal “parent,” but if that relationship with the child is terminated under Chapter 15 of Title 2, the person is no longer a “parent” under the Code.

The alleged father of an illegitimate child is entitled by Sec. 11.09 to service of citation upon the commencement of any suit affecting the parent-child relationship between the child and the mother or any other person. The father then may seek voluntary legitimation under See. 13.01. S.D.A. has done so under 13.01(b) which provides as follows:

If a statement of paternity is filed with the State Department of Public Welfare, the father, the mother, or the department may institute a suit for a decree establishing the child as the legitimate child of the person executing the statement. On the consent of the mother, the managing conservator, or the court, and on the filing of the statement of paternity with the petition, the court shall enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity.

Neither the mother of the baby girl K, nor the Child Welfare Unit as managing conservator, nor the trial court has consented that S.D.A. may obtain a decree establishing this child as the legitimate child of S.D.A. Such a decree would entitle S.D.A. to the legal relationship as a parent under the Code. S.D.A. argues that the only matter to be considered in the legitimation proceeding is the paternity of the child and that, since it is conceded that S.D.A. is in fact the father of this baby girl, the court has no discretion to deny him the decree of legitimation. We disagree. We fail to see why the Legislature would require the “consent” of the court if the biological fact is the only predicate for legitimation and, hence, entitlement to full parental rights. If the court must consent to the matter, discretion is thereby conferred upon the judge to see that the one who would assume parental rights and responsibilities is fit to do so and that a decree declaring this relationship is made only if it is in the best interest of the child.

S.D.A. then points to Sec. 15.02 of the Code which provides that the court may terminate the parent-child relationship if a parent has consented or has been guilty of any of the grounds of abandonment, neglect or abuse there specified and if, in addition, the termination is in the best interest of the child. S.D.A. says that the United States Constitution assures that he must be treated in precisely the same manner. Thus, once he is shown to be the biological father of the child, his rights with respect to the child may not be terminated absent a showing of the same grounds required to terminate the rights of a father to whom a child is legitimately born.

It is clear that the law as S.D.A. says it ought to be is not the law of the Texas Family Code. Sec. 15.02 expressly applies to parents and not to all fathers. Sec. 15.02(1) was drafted in 1973 without thought of a biological father who terminated his relationship with the mother and the expected offspring nine months prior to the birth of the child. It may be questioned whether the trial court was restricted to these specific grounds of 15.02(1) if the father (even if a “parent”) were totally unfit to hold any responsibility or control of the child — even though it might not be said that he has yet engaged in conduct which has endangered the child. In any event, under the circumstances of this case the Legislature provided for the exercise of discretion by the trial court prior to the legitimation of the child as to the biological father, which discretion was to be exercised according to the best interests of the child. Since S.D.A. was not entitled to the decree of legitimation, the court was not required to look to the specific grounds of Sec. 15.02 which are relevant only for termination of the relationship between the child and one who has been given the legal status of a parent.

We come now to the constitutional question. S.D.A. contends that the United States Supreme Court has in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) equated fathers of illegitimate children with fathers of legitimate children and has required the states to do likewise. In that case the State of Illinois had removed three children from the father’s custody following the death of the children’s mother. The father had over pri- or years taken part in the care and custody of his children and was then living together with them as a family unit. Illinois denied the father an opportunity to appear in court to show why his family should not be dismembered, and he was denied a hearing on his fitness to keep his children. Despite the existing family relationship, because of the lack of a legal marriage to the deceased mother of the children, the State presumed the father to be unfit as a parent. The Supreme Court held:

We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws guaranteed by the Fourteenth Amendment. 405 U.S. 649, 92 S.Ct. 1211.

Counsel for S.D.A. reads Stanley to preclude any and all distinctions between fathers of illegitimate children and other parents. We do not read the Supreme Court to have made such a holding, nor do we think that the Supreme Court has lost sight of the paramount rights of the child. The Stanley opinion emphasizes the importance of the family and the integrity of the family unit. The Court objects to the separation of children from a father who has sired and raised them until the father has been given an opportunity to show his fitness to keep that family with him.

Stanley does not decree that all unwed fathers have fundamental rights to full parental status or that every statutory discrimination against the unwed father is suspect. The overriding interest of state and courts is the welfare of the affected children. We are not nearly so far down the road to unrestrained egalitarianism as to hold that the Constitution guarantees an unwed father parental rights in violation of the best interests of the child.

The Court of Appeals of New York has upheld a New York statute which requires consent of the natural mother, without requiring consent of the natural father, for adoption of an illegitimate child. In re Adoption of Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486 (1975). That court wrote:

Of course, the primary concern of the Legislature and the courts is with the welfare of the children involved rather than with the allocation of rights between the mother and the usually uncertain and reluctant father of the children born out of wedlock. In this context, legislation and policy are governed by general conditions rather than the special circumstances of a sympathetic and idiosyncratic situation. Moreover, as noted earlier, the father in this case was given notice and an opportunity to be heard on the issue of what was in the best interest of the child. 36 N.Y.2d 579, 370 N.Y.S.2d 521, 331 N.E.2d 493.

There is a rational basis for the state, which has an interest in securing stable homes and supportive families for children, to distinguish between the father who has accepted the legal and moral commitment to the family and the father who has not done so. The biological father may be a sperm donor or a rapist or someone as S.D.A. who has simply engaged in a single hit and run sexual adventure. He may, on the other hand,, be devoted to child and family even though the legal contract has not been sealed. Texas law offers the biological father of an illegitimate child the opportunity to prove which category in which he falls and to show that he should not be treated differently from fathers legally committed to the mothers of their children. Thus S.D.A. sought and received a fair hearing. The evidence proved him to be an unfit person to act as parent of this child, and the denial of his petition for parental status was shown to be in the best interest of the child. His rights have been respected. The rights of society and baby girl K permit him nothing more.

The judgments below are affirmed.

POPE, Justice

(dissenting).

I respectfully dissent. The majority opinion unnecessarily construes the Family Code in such a way as to deal unequally between men and women and between an unwed mother and an unwed father. Among those differences are:

(1) An unwed woman is treated in law as a parent by force of her biological motherhood, whereas the undisputed fact of fatherhood does not constitute the unwed man a parent.

(2) The unwed father bears the burden of the duties which flow from parenthood upon proof of his biological fatherhood, Gomez v. Perez, 466 S.W.2d 41 (Tex.Civ.App. 1971, writ ref’d n. r. e.), rev’d, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), but the same unwed father has no parental rights by force of his fatherhood.

(3) An unwed man’s parental rights may be permanently terminated without compliance with article 15.02, Family Code, whereas an unwed woman’s parental rights are terminable only upon proof which meets those statutory requirements.

Chapter 13 of the Texas Family Code makes provision for legitimation procedures; chapter 14 provides for conservator-ship, possession and support of children; and chapter 15 provides for the permanent termination of the parent-child relationship. Each chapter imposes different tests and rules for each of those three kinds of proceedings. The majority rule, today announced, is that those statutory rules only protect the rights of women, not men.

I rather suppose that S.D.A., the father, would have had problems preserving his parental rights if he had been tried under the correct test; but we pursue a dangerous technique when this court suggests that we might be excused from following the law because, after all, one of the parties is undeserving of an equal rule.

Legitimation Proceedings

According to article 11.01(3), the word “parent” is defined:

“Parent” means the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the parent-child relationship has been terminated.

It is at once apparent that the word means one thing as to the mother and an entirely different thing as to the father. Biological motherhood means parenthood in the case of the woman. The majority holds that admitted biological fatherhood does not mean parenthood in the case of the man.

The evidence without dispute conclusively established the biological fatherhood of S.D.A. S.D.A. pleaded the fact, and he filed his statement of paternity which was sufficient under section 13.02. That was prima facie proof of paternity under section 13.03. The Welfare Unit judicially admitted the fact of paternity by its allegation that “[t]he father of the child is S.D.A.” In the course of the evidentiary hearing the Welfare Unit stipulated that “S.D.A. is the father of Baby Girl K” and the trial court found as a fact that he is the father of the child. S.D.A. conclusively established the fact of his fatherhood as a matter of law at the constitutionally mandated hearing. I would hold, therefore, that biological paternity would constitute a father a parent just as biological maternity constitutes a mother a parent. Article 11.01(3) is void in unequally defining a “parent.”

S.D.A. also contended that he is a parent within a reasonable construction of section 11.01(3) of the Family Code, which in the case of a man, is one as to whom the child is legitimate or has been adopted. He reasons that he established the child’s legitimacy by his compliance with section 13.01 of the Family Code. It provides:

Voluntary Legitimation
(a) The father of a child not the legitimate child of another man may institute a suit for a decree designating him as the father of the child unless, the parent-child relationship has been terminated under Chapter 15 of this code. With the consent of the mother or the managing conservator, if one has been appointed, and the court, and on the filing of a statement of paternity executed by the father and submitted with the petition, and after notice to the wife, if any, of the father of the child, the court shall enter a decree declaring the child to be the child of the father.
(b) If a statement of paternity is filed with the State Department of Public Welfare, the father, the mother, or the department may institute a suit for a decree establishing the child as the legitimate child of the person executing the statement. On the consent of the mother, the managing conservator, or the court, and on the filing of the statement of paternity with the petition, the court shall enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity.
(c) A suit for voluntary legitimation may be joined with a suit for termination under Chapter 15 of this code. [Emphasis added.]

Section 13.01(a), quoted above, authorizes the court to “enter a decree declaring the child to be the child of the father.” Section 13.01(b) authorizes the court to “enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity.” In my opinion the Legislature intended in a legitimation proceeding to require proof of the biological fact of paternity and, just as it is the fact of motherhood, it should be the fact of fatherhood which results in a decree of legitimation.

Section 13.01(b) requires the “consent” of the court. That consent should be given and should not be arbitrarily withheld, when all of the facts establish the fact of paternity. When the fact is disputed or ambiguous, the court should withhold its consent until the fact is settled at a trial. The withholding of consent, however, should be for the purpose of requiring proof of the fact of paternity, and not to short-circuit all of the other procedures which the Family Code authorizes.

The correct test in a legitimation proceeding is the fact, vel non, of fatherhood, and not as the majority has held, what is the best interest of the child. Chapter 14 says that the best interest of the child is the correct test for conservatorship, possession and custody and support matters. Those matters are not issues in these proceedings, but the majority has transplanted that test from chapter 14 into legitimation proceedings which involve paternity under chapter 13. Chapter 13 does not mention that test as an appropriate one. When the 63rd Legislature first enacted chapter 13 of the Family Code, it made no provision for involuntary legitimation, that is, paternity suits. It only authorized a father’s voluntary suit for legitimation. The 64th Legislature amended all of chapter 13 and for the first time in Texas authorized an involuntary paternity suit so that either the mother or father could prove paternity. Sections 13.-01-13.09. Under the paternity statutes as enacted in 1975, the issue is clearly that of one’s biological fatherhood. The effect of a decree that he is the father of the child “createfs] the parent-child relationship between the father and the child as if the child were born to the father and mother during marriage.” Section 13.09. The construction which I would give to the earlier voluntary legitimation statute is consistent with what the Texas Legislature has now actually declared to be the correct test in the case of involuntary legitimation. Legitimation proceedings should logically concern the fact of fatherhood, whether it is a voluntary or involuntary proceeding. Until the fact of fatherhood is determined, the issues about conservatorship or permanent termination of parental rights do not arise.

By way of analogy, once the fact of fatherhood is established, an unwed father has certain parental duties fixed upon him. When Gomez v. Perez, 466 S.W.2d 41 (Tex. Civ.App.1971, writ ref’d n. r. e.), came to this court in 1971, we refused the writ by reason of a long line of Texas precedents which held that a father of a child born out of wedlock was under no duty to support the child. As is true in our present case, the proof established the fact of biological fatherhood. The United States Supreme Court, even without the aid of a Texas statute, rejected our Texas rule and held that the obligation of the biological father to perforin his parental duty of support applied equally to children born in and out of wedlock. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Said the court, “We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right- to a child simply because its natural father has not married its mother.” On constitutional equal protection principles the child of an unwed father was treated like a legitimate child, and that was so without the aid of any statute. In Gomez the biological fact of fatherhood imposed the duty of support. If the rule is equally applied, we should also recognize the father’s correlative rights of parenthood which flow from the same fact.

Termination of the Parent-Child Relationship

Even more surprising, however, is the way the courts below and the majority of this court have arrived at a judgment which permanently terminates S.D.A.’s parental rights. Section 15.02 is the statute which spells out the grounds for an order permanently ending the parent-child relationship. It is in two parts. Subsection (1) requires proof of one of the specified acts numbered from (A) to (I). In addition to that required proof, subsection (2) requires proof that the termination is in the best interest of the child. The majority now holds that the statute applies to a mother but not to S.D.A., a father.

The trial court’s judgment orders the permanent termination of the father’s parental rights in these words: “It is therefore ordered, adjudged and decreed by the Court that all parental rights of G.K. and all rights which S.D.A. may have the right to assert in regards to said Baby Girl K, born April 6, 1974, be and are hereby terminated.” The court of civil appeals and this court have affirmed the judgment of termination and have done so in spite of the Welfare Department’s admission that it neither pleaded nor proved any of the facts required by article 15.02(1). The Welfare Department’s brief says, “[I]t is true that none of the grounds for termination itemized in Sec. 15.02, Texas Family Code were alleged in the petition for termination and none were proved at the hearing, however, the court found from the proof adduced that Petitioner is not a fit and proper person to be entrusted with the care of the child and the best interest of the child requires that the court withhold its consent to legitimation . . .

The majority announces the rule that the Family Code is for the protection of mothers and women, but in the case of fathers and men, it is all right if the court invents a different and special rule. The reason this lack of equality is all right, says the court, is that the father in this case was given notice of the hearing, citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Stanley has now been construed to hold that a man is equally treated if he has notice of the hearing in which the court ignores the Family Code. The rule violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Rothstein v. Lutheran Social Services of Wisconsin & Upper Michigan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786, rev’g mem. 47 Wis.2d 420, 178 N.W.2d 56 (1970); Vander-laan v. Vanderlaan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 787, rev’g mem. 126 Ill. App.2d 410, 262 N.E.2d 717 (1970).

I would reverse the judgments of the courts below and remand the cause (1) for the determination of the fact of S.D.A.’s paternity; (2) for the determination of the termination issue under article 15.02; (3) and if termination should fail, then for a determination of managing conservator-ship, possession, and support of the child.

STEAKLEY and DENTON, JJ., join in this dissent.

      . When Chapter 13 was amended by the Legislature in 1975 the Legislature specifically provided that the court may consent to a legitimation “[I]f the entry of the decree is in the best interest of the child . . Sec. 13.21(c). Acts of the 64th Legislature, Regular Session, 1975, Ch. 476.

      . § 13.02. Statement of Paternity

      The statement of paternity authorized to be used in Section 13.01 of this code must be executed by the father of the child as an affidavit and witnessed by two credible adults. The affidavit must clearly state that the father acknowledges the child as his child, that he and the mother, who is named in the affidavit, were not married to each other at the time of conception of the child or at any subsequent time, that the child is not the legitimate child of another man, and that the child is entitled to support from the father. The statement must be executed before a person authorized to administer oaths under the laws of this state.

      . § 13.03. Effect of Statement of Paternity

      (a) A statement of paternity executed as provided in Section 13.02 of this code is pri-ma facie evidence that the child is the child of the person executing the statement and that the person has an obligation to support the child.
      (b) If the father’s address is unknown or he is outside the jurisdiction of the court at the time a suit is instituted under Section 13.01 of this code, his statement of paternity, in the absence of controverting evidence, is sufficient for the court to enter a decree establishing his paternity of the child.

      . § 15.02. Termination When Parent is not Petitioner

      A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      (1) the parent has:
      (A) voluntarily left the child alone or in the possession of another not the parent and -expressed an intent not to return; or
      (B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of thé child, and remained away for a period of at least three months; or
      (C) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
      (D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
      (E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; or
      (F) abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence; or
      (G) contumaciously refused to submit to a reasonable and lawful order of a court under Section 34.05 of this code; or
      (H) been the major cause of:
      (i) the child’s repeated violations of the compulsory school attendance laws; or
      (ii) the child’s absence from his home without the consent of his parents or guardian for a substantial length of time or without the intent to return; or
      (I) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Section 15.03 of this code; and
      (2) termination is in the best interest of the child.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clyde COKER, Petitioner, v. Ray MITCHELL and Max Atkins, Respondents.
    No. B-5784.
    Supreme Court of Texas.
    March 31, 1976.
    Robert G. Carter, Marlin, for petitioner.
    John M. Hand, Marlin, Robert A. Canóni-co, Waco, for respondents.
   PER CURIAM.

The Court of Civil Appeals (531 S.W.2d 204) has properly followed the rule of Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727 (1947), and allowed a non-suit sought in the trial court by the plaintiffs prior to announcement by the judge in open court that defendant’s motion for instructed verdict would be granted. Under the rule in effect when this case was tried and when the Court of Civil Appeals opinion was written, the plaintiffs had the right to take the non-suit even though all parties had closed the presentation of evidence and the judge had informed them in chambers of his intention to grant the defendant’s motion. The application is therefore refused, no reversible error. It should be noted that Rule 164, Tex.Rules Civ.Proe., as amended January 1, 1976, now allows plaintiff the right to a non-suit only until his own case-in-chief is rested.


author: DOUGLAS, Judge.

text:
    Roger Clinton LIGHTNER, Appellant, v. The STATE of Texas, Appellee.
    No. 51184
    Court of Criminal Appeals of Texas.
    March 31, 1976.
    Douglas H. Parks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald H. Fla-nary, Jr., and Bill Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of aggravated robbery. Trial was before the court; punishment was assessed at five years.

Appellant’s sole contention is that the evidence is insufficient to sustain a conviction of robbery. The record reflects that on September 25, 1974, appellant parked in front and across the lines of a Mr. M. Store in Irving. As he approached the store the attendant yelled to her daughter who was in the rear of the store that they were about to be robbed. Appellant pushed on the door of the store as if to enter but walked around the corner of the shopping center and went into Triangle Cleaners. Ester Stevens, an employee, was in the rear of the store. She saw appellant in front of the store. She saw him put his hand in his pocket and heard the cash register slam shut. When she asked if she could help him, he answered that he was looking for his ticket. When she told him that they did not use tickets, he left. Miss Stevens then looked in the cash register and discovered that some money was missing. Miss Stevens then ran to the front door. Appellant turned and ran towards his car and she yelled for the police. Appellant got in his car and made a “horseshoe” turn to get out of the parking lot. He turned out of the lot onto Darr Street and drove down the street for about a quarter of a block and turned back into the shopping center lot behind the buildings. The exit driveway was blocked by another vehicle and appellant stopped his car within twenty feet of the back of Triangle Cleaners.

M. C. Collins, a policeman who was driving by, noticed some women waiving and shouting at him. The officer drove into the lot and one woman yelled that she had been robbed by “a colored man in a white Chevrolet.” They told him that the man had just gone around the south corner of the shopping center. The officer drove the length of the shopping center, turned to the back of the shopping center and stopped at the white Chevrolet blocked at a north exit. Officer Collins told appellant to get out, put his hands on the car and spread his legs. During the pat down, appellant turned around and struck the officer'in the chest with his elbow. Officer Collins tried to subdue him and they both fell against the car. Appellant got away from the officer and back into his car. The engine was still running. Appellant then drove it back towards the officer who was able to step out of the way. Appellant then ran into the police car. Officer Collins then pointed his gun at appellant and told him to get out of his car. Appellant did so, and the officer tried to search him again. Another struggle followed. Officer Collins was not able to control the appellant and had to ask another man for help. They were able to handcuff the appellant. Forty-four dollars was found between the driver’s seat and the door jamb of appellant’s car. The officer’s chest was bruised by the blow from appellant’s elbow.

Appellant testified that he took the money from the cash register of Triangle Cleaners but contends that the struggle with the policeman had nothing to do with the theft of the money.

V.T.C.A., Penal Code, Section 29.02, defines robbery as follows:

“(a) A person commits an offense if in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or .

V.T.C.A., Penal Code, Section 29.01, provides:

“(1) ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. . . ”

Appellant contends that the cases interpreting the former statute should apply to the new statute.

Article 1408, V.A.P.C. (1925), defined robbery as follows:

“If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished

Generally under the former statute the threats or violence had to be antecedent to the taking of the property and had to put the person from whom the property was taken in fear so that he would more readily part with his property. Crawford v. State, 509 S.W.2d 582 (Tex.Cr.App.1974).

The definition of robbery under the 1974 Penal Code is broader than the one contained in Article 1408, supra. The requirements set by cases such as Crawford, supra, do not apply to the new penal code. Under Sections 29.01 and 29.02, supra, the offense of robbery includes any violence in the course of effectuating the theft as well as any violence while in immediate flight from the scene of the theft. This new definition of robbery proscribes the use of violence not only in the taking of the property, biit also in the immediate efforts of the thief to keep the stolen property.

Appellant contends that he was not in immediate flight when apprehended by Officer Collins. Officer Collins caught appellant about 100 yards from the scene of the theft. He started to follow appellant to the back of the shopping center shortly after appellant had entered the rear of the parking lot. Appellant was handcuffed and in custody within seven to nine minutes after the theft.

We hold that there is sufficient evidence to show that appellant injured the police officer in an effort to maintain control of the stolen property while in immediate flight from the theft. This is sufficient under the 1974 Penal Code.

The judgment is affirmed.


author: BROWN, Commissioner.

text:
    Sara TRIPPELL, Appellant, v. The STATE of Texas, Appellee.
    No. 51358.
    Court of Criminal Appeals of Texas.
    April 7, 1976.
    Randy Schaffer of Haynes & Fullenweider, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and John B. Holmes, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of aggravated promotion of prostitution under Y.T.C.A. Penal Code, Sec. 43.04, a third degree felony. The trial court under the provision of V.T.C.A. Penal Code, Sec. 12.44, set aside the verdict of guilty of a felony of the third degree and entered a judgment of guilty of a Class A misdemeanor. The trial court assessed punishment at forty (40) days in the Harris County jail and a fine of four hundred ($400) dollars.

On January 7, 1974, a private citizen named James Smith accompanied by a member of the Harris County Sheriff’s Department visited Dee’s Health Spa. While the officer stayed outside, Mr. Smith entered the building.

Smith testified that the appellant answered the door and asked him to come inside. Smith indicated that he wanted a massage and the appellant informed Smith that the cost would be twenty dollars. Smith stated that there were two other girls in the room with the appellant. Smith then testified that he selected a girl named Marylin Welsh to give him a massage and that the two of them then went to a back room in the building. Smith stated that the room had no furniture except what was described as a “massage table.” Smith then testified that he paid twenty dollars to Welsh who took the money and left the room for several minutes.

Smith then testified that he undressed and that Welsh began massaging his back while they exchanged small talk. Smith testified that Welsh asked him what he wanted and that he requested a “local.” Smith stated that Welsh then proceeded to masturbate him to a climax. Smith further testified that Welsh remained fully clothed during the entire massage and that no additional money changed hands. Smith stated that after Welsh masturbated him she again began rubbing his back and that after about thirty minutes he dressed and left the premises.

Carol Dickard testified that she had been employed in January, 1974 by Dee’s Health Spa as a masseur. Dickard indicated that she was employed by the Spa when the appellant took over the Spa and that the appellant was there only a few days before she was arrested. When the appellant took over the Spa, Dickard indicated that the girls working there were told “to continue what we had been doing . . . .” Dick-ard testified that she received a fifty percent commission for each massage, with the appellant receiving the other fifty percent. Dickard also stated that she engaged in sexual intercourse during the time she worked at the Spa and would likewise divide the proceeds with the appellant. Dick-ard also identified a photograph of Marylin Welsh as being a co-employee at the Spa. Dickard also stated that the appellant had never been present with her in a room with a customer.

In light of the disposition of this case we need not reach the contentions contained in the appellant’s first three grounds of error.

Appellant in her fourth ground of error contends that the trial court erred in denying her the right to effective confrontation and cross-examination of the witness Smith. Appellant argues that the trial court refused to allow the impeachment of the witness with evidence of prior convictions, after the witness made a blanket assertion that he had never been convicted.

The witness Smith testified on direct examination that he had paid twenty dollars for a massage at the massage parlor allegedly operated by the appellant, and that during the course of that massage the masseur had masturbated him to a climax. On cross-examination, Smith testified that he was not a law enforcement officer, but was the ex-treasurer of a local civic club, and that he had gone to the Harris County Sheriff’s Office to explain what was going on in the community. He stated that he was just being a good citizen and wanted to clean up the situation.

Appellant’s counsel then asked Smith whether or not, in the last ten years, he had ever been convicted of a felony or a misdemeanor involving moral turpitude. Smith answered, “I have never been convicted.” He was then asked if he had ever been convicted of aggravated assault on a female; he again responded, “I have never been convicted.”

Appellant’s counsel then developed on a bill of exception, outside the presence of the jury, that Smith had been indicted for rape and had pleaded nolo contendere to the lesser included offense of aggravated assault on a female. He was found guilty and received one year’s probation, which he stated had been completed by the time of the instant trial. Smith further testified that in August of 1973 he paid a fine of one hundred dollars for the offense of carrying a pistol. Smith also admitted that he had been charged with murder in 1973 but that the case was not billed by the grand jury. He also admitted that he had been charged with writing hot checks but that he had paid them off. Smith stated that he could not remember if he had plead nolo conten-dere or if he had paid a fine on the check charges. Smith also admitted that his wife had filed aggravated assault charges against him and that these had been dismissed by the District Attorney’s Office at about the same time that he went to the Sheriff’s Department.

The appellant argues that the blanket assertion by Smith that he had never been convicted opened the door for the defense to prove that the witness had in fact been convicted of carrying a pistol and aggravated assault on a female.

The general rule is well settled that a witness may be impeached by prior convictions only if the conviction is for a felony or a misdemeanor involving moral turpitude, and only if a final conviction has resulted. The offense of aggravated assault on a female is a misdemeanor involving moral turpitude, but the witness had completed his probation at the time of the trial. The offense of carrying a pistol is a misdemeanor that does not involve moral turpitude. Therefore, under the provisions of Art. 38.29, V.A.C.C.P., neither of these convictions would be admissible for impeachment. See, e. g., Redman v. State, 533 S.W.2d 29, decided February 18, 1976.

However, in the instant case the witness Smith made the statement in the presence of the jury that he had never been convicted. The witness was representing himself in the presence of the jury as a law-abiding citizen who had no prior convictions. He further represented that his purpose in aiding the Sheriff’s Department investigation was simply to help clean up his community. A blanket statement that he had never been convicted opened the door to evidence regarding the prior convictions, even though one was for a misdemeanor which did not involve moral turpitude and the other conviction resulted in a probated sentence which had been completed prior to the trial.

. In Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 (1957) the defendant was asked by his counsel if he had ever been convicted of a felony or misdemeanor or paid a fine. The defendant answered in the negative. On cross-examination he was questioned about a prior fine and jail sentence. This Court held that this was proper cross-examination. In Eloms v. State, 159 Tex.Cr.R. 471, 264 S.W.2d 725 (1953) this Court said:

“Prudence favors a showing by the accused that he is eligible under the .suspended sentence law, enjoys a good reputation as a law abiding person, and no more. If he goes further and makes blanket statements about exemplary conduct, then the State may refute them.”

In Peak v. State, 522 S.W.2d 907 (Tex.Cr. App.1975) we observed that where a defendant testified that he had never sold pills and had never been in trouble before it was proper for the State to show that he had sold drugs in another state at a later date than the sale with which he was then charged. The witness’ testimony made the other offenses “relevant and admissible.”

In Reese v. State, 531 S.W.2d 638 (Tex. Cr.App.1976) we stated:

“Generally, charges of offenses are inadmissible for impeachment purposes unless the charges result in final convictions for felony offenses or final convictions involving moral turpitude, none of which are too remote. Ochoa v. State, 481 S.W.2d 847 (Tex.Cr.App.1972). An exception arises when the witness, by his direct testimony, leaves a false impression of his ‘trouble’ with the police. In this situation, it is legitimate to prove that the witness had been ‘in trouble’ on occasions other than those about which he offered direct testimony. Nelson v. State, Tex. Cr.App., 503 S.W.2d 543 [1973]; Ochoa v. State, supra."

Cf. Hoffman v. State, 514 S.W.2d 248 (Tex. Cr.App.1974).

As the above cases indicate the State may prove any conviction against a defendant when the defendant opens the door by giving an erroneous impression that he is a conscientious, law-abiding citizen.

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), a state statute prohibited the mention of a witness’ juvenile record. The United States Supreme Court held that the refusal to allow the defendant to cross-examine a key prosecution witness to show his probable bias denied the defendant his right to confrontation, notwithstanding the State’s policy of protecting the anonymity of juvenile offenders. In explaining the decision the Court said:

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. . . . [T]he cross-examiner had traditionally been allowed to impeach, i. e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Green v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).” (footnotes omitted)

Where, as in the instant case, the witness represents himself as a law-abiding citizen who was only aiding the Sheriff’s Department out of a sense of civic duty and the witness then denies that he has ever been convicted, it is reversible error to deny the appellant the right to cross-examine the witness as to prior convictions and other relevant matters that would tend to reflect on the witness’ bias, prejudice, and ulterior motives.

Although this case is reversed on appellant’s fourth ground of error only there is a serious question as to the sufficiency of the evidence. Smith testified that he paid twenty dollars for a massage and that no further money was exchanged. Smith stated that it was only after the massage had begun that Welsh asked him what he wanted. The witness testified that he asked for a local. Having already paid for the massage it is difficult to characterize Welsh’s actions as prostitution under V.T. C.A. Penal Code, Sec. 43.02. It is even more difficult to then impute Welsh’s actions if they be an offense to the appellant herein, or to rely on Smith’s testimony to show that the Spa was a “prostitution enterprise” as required by V.T.C.A. Penal Code, Sec. 43.04.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ODOM, J., concurs in results.


author: DALLY, Commissioner.

text:
    Thomas W. STANTON, Appellant, v. The STATE of Texas, Appellee.
    No. 51434.
    Court of Criminal Appeals of Texas.
    April 7, 1976.
    James E. Walker, Belton, for appellant.
    Joe Carroll, Jr., Dist. Atty. and Al W. Schorre, Jr., Asst. Dist. Atty., Belton, Jim D. Yollers, 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 delivery of Lysergic Acid Diethylamide; punishment was assessed by the jury at imprisonment for 7V2 years.

Appellant contends the trial court erred (1) in failing to declare a mistrial when one juror indicated that the verdict was reached against her will and (2) in allegedly coercing the juror to agree to the verdict against her will.

The record reflects that after deliberating two hours and fifty minutes at the punishment stage of the trial the jury returned to the courtroom and the following dialogue ensued:

“THE COURT: Ladies and gentlemen of the jury, before I read the verdict, again let me ask you to raise your hand if this is, in fact, a unanimous verdict. Is this unanimous?
“A LADY JUROR: It was, but it was against my will.
“THE COURT: Ma’am?
THE SAME JUROR: It was, but it was against my will.
“THE COURT: Ma’am, I cannot accept it unless it is unanimous.
“THE SAME JUROR: Well, then what happens, Sir?
“THE COURT: What happened?
“THE SAME JUROR: I say, what happens?
“THE COURT: Well, it would be tried over.
“THE SAME JUROR: You mean the guy will get a new trial?
“THE COURT: If you tell me it’s not unanimous, I cannot accept it.
“THE REPORTER: Who is the juror?
“THE COURT: Mrs. Herring.
“JUROR HERRING: Well, I changed my vote three times and I felt it was too stiff. My conscious didn’t tell me to do this, but it looked like we was hung and that was it.
“THE COURT: Well, Ma’am, before—
“JUROR HERRING: That’s the best I can tell you.
“THE COURT: Before we go into — I would rather not go into a discussion with you, I’m not permitted to; but would y’all rather go out and reconsider before we go any further?
“JUROR HERRING: Well, as far as I—
“THE COURT: Rather than declare a mistrial, I want to give you every opportunity to consider, and if you can reach a unanimous verdict before I receive it, otherwise, I will be bound under the law to declare a mistrial and to have a new trial and have to impanel another jury. But if you want to go out and—
“JUROR HERRING: Well, sir, my convictions—
“THE COURT: Well, Ma’am, I cannot — I would rather not discuss it, because I cannot do anything except accept or reject the verdict, because I’m bound under the law not to discuss it with you. The deliberations will have to be among you jurors and not among us. I will give you more time if you like. Y’all can stay out here and we will retire from the courtroom.”

The jury then deliberated for thirty-seven more minutes, following which the court was notified that a verdict had been reached; thereafter, the following proceedings were had:

“THE COURT: All right. Now, ladies and gentlemen, let me ask you again, is this your unanimous verdict? Raise your hands if it is.
“THE JURORS: (The jurors raised their hands unanimously.)
“THE COURT: All right. Thank you. Let the record reflect that each juror raised his hand or her hand in response to the court’s inquiry that it is a unanimous verdict of the jury.
“ ‘We, the jury, having found the defendant, Thomas W. Stanton, guilty of the unlawful sale of a controlled substance, to-wit: Lysergic Acid Diethyla-mide, assess his punishment at seven and one-half years imprisonment in the State penitentiary.’ Signed, ‘Plez Brooks,’ Foreman of the jury.
“Do any of you have anything, do you want to poll the jury or ask the jury—
“[DEFENSE ATTORNEY]: Do not, Your Honor.
“[PROSECUTOR]: The State does not, Your Honor.”

It is appellant’s contention that “the court erred in not declaring a mistrial when a juror indicated that the punishment assessed was against her will.” Appellant did not object to the proceedings and did not ask for a mistrial.

When it appeared that the jury’s verdict, reached after less than three hours of deliberation, might not have been unanimous, the court asked the jury to retire again in order to ascertain whether further deliberations would produce a unanimous verdict. It has been held that the length of time that the jury may be held for deliberation rests largely in the discretion of the trial court, and unless it is made to appear that the court abused its discretion in this regard, no reversible error is shown. See Garcia v. State, 522 S.W.2d 203 (Tex.Cr. App.1975); Williams v. State, 476 S.W.2d 300 (Tex.Cr.App.1971).

The jury did not indicate that it was deadlocked; rather, one juror stated that she had voted with the majority though she disagreed with the verdict. Henderson v. State, 12 Tex.Rep. 525 (Tex.Sup.1854), concerned similar circumstances and is applicable here; the Court there said:

“While the law respects individual judgment, and will not receive a verdict to which every juror has not yielded his voluntary consent, it cannot prevent him from yielding, if he will, his own judgment in deference to the opinions of his fellows. And it would perhaps be impossible to administer the law through the means of jury trial, if, in the numerous cases which involve complicated and difficult questions, upon which honest minds may differ in their conclusions, each juror should persist in the conclusions of his own judgment, and would pay no deference to the opinions of his fellow jurors. The law does not require this obstinacy in the maintenance of individual independence of judgment. It expects jurors to compare opinions, and yield such deference as they conscientiously can to the opinions of each other, in order to concur, if possible, in a verdict.”

The jury deliberated in all less than three and one-half hours. We perceive no abuse of discretion on the part of the trial court in ordering the jury to continue their deliberations.

The appellant did not make a motion for mistrial. If the court had granted a mistrial sua sponte, without such action being requested or at least concurred in by the appellant, a serious question of former jeopardy might have been raised in a subsequent trial. See Hunter v. State, 530 S.W.2d 573 (Tex.Cr.App.1975); Taylor v. State, 474 S.W.2d 207 (Tex.Cr.App.1971); Haywood v. State, 482 S.W.2d 855 (Tex.Cr. App.1972), footnote # 2; and see United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). This ground of error is overruled.

Appellant also contends that the trial court coerced juror Herring to agree to the verdict against her will. It is appellant’s position that the court’s action in informing juror Herring that if the jury could not reach a unanimous verdict a mistrial would have to be declared coerced her into agreeing to the verdict.

Appellant did not object to the conversation between the trial court and juror Herring; therefore, nothing is presented for review. Further, the comments of the court to juror Herring, read as a whole, were not coercive in nature such as to require a reversal. See Arrevalo v. State, 489 S.W.2d 569 (Tex.Cr.App.1973); Calicult v. State, 503 S.W.2d 574 (Tex.Cr.App.1974). The record does not reflect the effect, if any, the court’s comments had upon the jury; appellant made no showing of coercion in fact on motion for new trial or by any other means. Calicult v. State, supra. We find no abuse of discretion on the part of the court. This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Roy Cleaver JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 51748
    Court of Criminal Appeals of Texas.
    April 7, 1976.
    Don W. Rogers, Jr., Houston (Court appointed on appeal), for appellant.

      Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of robbery by assault in violation of our former Penal Code; the robbery was committed on April 24, 1973; punishment was assessed by the court at imprisonment for 25 years.

We are confronted at the outset with a fundamentally defective indictment. As in Lucero v. State, 502 S.W.2d 128 (Tex.Cr. App.1973) (case one), the indictment here fails to allege to whom the property allegedly taken belonged. For this reason, the indictment is fundamentally defective, and the conviction must be reversed. Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Arline v. State, 529 S.W.2d 73 (Tex.Cr.App. 1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975).

The judgment is reversed and the prosecution under this indictment is ordered dismissed.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    Ex parte Daniel E. IGLEHART.
    No. 51761.
    Court of Criminal Appeals of Texas.
    April 7, 1976.

      0. W. Sternberg, W. V. Dunnam, Jr., Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Lynn W. Malone, Asst. Dist. Atty., Waco, and Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

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

Petitioner’s primary contention in this application for writ of habeas corpus concerns a claim that he was denied “time credits” toward the discharge of his Texas sentence while he was incarcerated in Leavenworth Federal Penitentiary. The factual circumstances involved in petitioner’s claim are as follows:

(1) On June 27, 1968, petitioner was convicted in the U.S. District Court for the Western District of Texas in Cause No. CR-68-15-W, of the offense of forging a government check, with his punishment being assessed at eight (8) years in confinement.
(2) On July 12, 1968, appellant was convicted in the 54th District Court of McLennan County for the offense of burglary, and assessed a twelve (12) year term of confinement, such sentence to run concurrent with his federal penitentiary time.
(3) Petitioner did not appeal either of these convictions, and was immediately transferred to the U.S. Penitentiary in Leavenworth, Kansas. The McLennan County Sheriff’s Office immediately placed a detainer on petitioner in order that he be held on this burglary commitment.
(4) Apparently, even though the records are not perfectly clear, petitioner was granted a federal parole on March 2, 1971, in which he was to be released to the “Texas detainer only”. However, for some reason, the records reflect that he was returned to the federal penitentiary after “Texas refused to come after” petitioner. The records further indicate that the detainer was reinstated on March 26, 1971, but petitioner’s federal parole to the Texas detainer was apparently not reinstated.
(5) On January 4, 1972, the Bureau of Prisons notified the McLennan County Sheriff’s Office that petitioner would be paroled on his federal sentence on February 9, 1972.
(6) On January 28, 1972, the Honorable Martin D. Eichelberger, District Attorney of McLennan County, initiated a request for extradition from the Governor of the State of Texas, which request was granted, and on February 2, 1972, the Honorable Preston Smith, Governor of the State of Texas, authorized extradition and these papers were forwarded to the Governor of Kansas.
(7) The petitioner was apparently released on federal parole on February 2, 1972, and according to petitioner’s own pleadings made bond pending an extradition hearing.
The records do not reflect the disposition of the Texas request for extradition, but it is apparent that petitioner was released from custody, as the records reflect that petitioner was not again incarcerated until April 30, 1975 when he was arrested in San Antonio, Texas.

Petitioner’s application contends that he is entitled to “flat time” credit toward the discharge of his Texas sentence continuously from July 12, 1968 until the present date, including the time that he was free from incarceration (February 9, 1972 until April 30, 1975).

Petitioner apparently complains that he should be entitled to credit for time spent even while he was out of custody because of the actions of the State of Texas in withdrawing, and then reinstating, their detain-er in 1971. As we understand petitioner’s argument, the fact that Texas did not take custody of petitioner in 1971 constitutes an estoppel of the State of its right to deny him these time credits while he was free from custody. Petitioner relies on Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr.App.1976). See also Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967).

The trial court conducted an evidentiary hearing on this issue, during which he considered only documentary evidence from the files of the trial court, the District Attorney’s Office and the U.S. Board of Prisons. Petitioner stated he did not wish to testify at the evidentiary hearing. The trial court entered findings of fact and conclusions of law recommending that petitioner be granted time credit while incarcerated in the U.S. Penitentiary at Leavenworth, Kansas (from July 12, 1968 until February 9,1972), and also recommends that petitioner’s sentence recommence as of the date of his rearrest on April 30, 1975. However, the trial court specifically recommends that the petitioner not be given credit for any time while he was free from custody after his federal parole.

Initially, we are in agreement with the trial court that petitioner is entitled to “flat time” credit toward the discharge of his Texas sentence for the time spent in the federal penitentiary at Leavenworth. It is well settled that where a court does not order that two or more sentences in different prosecutions shall be cumulative, then the terms of imprisonment run concurrently, and the sentence begins to run on the same day that it is pronounced, if the petitioner is in custody. See Art. 42.09, V.A.C.C.P.; Ex parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1970); Ex part Brown, 477 S.W.2d 552 (Tex.Cr.App.1972); Ex parte Lawson, 98 Tex.Cr.R. 544, 266 S.W. 1101 (1924); Ex parte Spears, 154 Tex.Cr.R. 112, 235 S.W.2d 917 (1950). We also agree with the trial court’s finding that petitioner is entitled to further flat time credit toward the discharge of his Texas sentence beginning as of April 30, 1975, the date that petitioner was rearrested, under the capias from McLennan County.

With reference to petitioner’s claim that he is entitled to credit for the time he was free from custody after he was paroled from the federal penitentiary, we note that this Court has recently held that once a petitioner’s sentence has begun to run such sentence must be continuous and the prisoner cannot be required to serve his sentence in installments, absent an escape, a violation of parole or some fault on the part of the prisoner. See Ex parte Downey, 471 S.W.2d 576 (Tex.Cr.App.1971); Ex parte Esquivel, supra. Therefore, the question presented in this case is whether or not the petitioner can make a good faith claim that his release from federal custody on February 9, 1972, was “without his own fault.”

Petitioner’s application for writ of habeas corpus in this case affirmatively states that after his release from the federal penitentiary he did not waive extradition to the State of Texas, but rather, made bond and apparently contested his extradition. The records before this Court reflect that while the state may once have erroneously dismissed its detainer, said detainer was almost immediately reinstated and remained in effect until petitioner’s parole. The records further reflect that the state diligently sought extradition of petitioner when notified of his pending parole, and that the Governor of Texas had authorized extradition prior to petitioner’s release. Even though the records do not show why the extradition process was never completed, it is clear that the District Attorney’s Office in McLennan County made a proper and timely request to obtain custody of the petitioner. The State of Texas is not “es-topped” from asserting its right to deny petitioner the claimed time credits while he was on bond and free from custody under the facts of this case.

Under these circumstances, since petitioner thwarted the prompt and diligent request for extradition, and since petitioner acknowledged the Texas demand for his custody, we hold that petitioner has not sustained his burden of proof to show that he was blameless in receiving his eventual improper release. See Ex parte Francis, 510 S.W.2d 345 (Tex.Cr.App.1974); Ex parte Esquivel, supra; Ex parte Spears, supra.

For the above-mentioned reasons, we hold that petitioner is entitled to flat time credit from July 12, 1968 to February 9, 1972, and that he is further entitled to flat time and any good time credit that the law allows after April 30, 1975. See Ex parte Enriquez, 490 S.W.2d 546 (Tex.Cr.App. 1973); Ex parte Bennett, 508 S.W.2d 646 (Tpx.Cr.App.1974). However, petitioner is not entitled to any credits for time while out of custody after his federal parole release.

It is so ordered, and a copy of this opinion will be transmitted to the Texas Department of Corrections.

Opinion approved by the Court.

      . Petitioner has raised other contentions in this writ of habeas corpus which we have already determined are clearly without merit, and shall not be considered in this opinion.

      . Petitioner’s application for writ of habeas corpus does not make any claim that he is entitled to “good time” credit on his Texas sentence for the time spent in the federal penitentiary. See Art. 6184/, V.A.C.S.
      Had such a claim been made, it would have been without merit, since petitioner was sentenced long prior to the amendment to Art. 42.03, V.A.C.C.P., which went into effect on August 27, 1973. See Curtin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974). Compare Harrelson v. State, 511 S.W.2d 957 (Tex.Cr.App. 1974). Therefore, since no direct appeal was taken, petitioner is not entitled to good time credit for any time spent in the federal penitentiary. See Holtzinger v. Estelle, 488 F.2d 517 (5th Cir. 1974). Compare also Pruett v. Texas, 470 F.2d 1182 (5th Cir. 1973), affirmed in 414 U.S. 802, 94 S.Ct. 118, 38 L.Ed.2d 39 (1973).


author: DAVIS, Commissioner.

text:
    Ex parte Allen Edward RUNO.
    No. 52028.
    Court of Criminal Appeals of Texas.
    April 7, 1976.

      Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order entered after a hearing in a habeas corpus proceeding seeking reduction of bail.

Appellant’s application for writ of habeas corpus alleged that appellant was held in confinement by reason of an indictment:

Cause No. 11,793, exercise of control of property, other than real property of the value of more than $200.00 and less than $10,000 without the consent of the owner and with intent to deprive the owner of the property. See V.T.C.A. Penal Code, Sec. 31.03(a)(2). In addition said indictment contains additional paragraphs alleging that appellant has previously been convicted of two felony offenses. Bail $125,000.00.

At the hearing, appellant was allowed to amend his application for writ of habeas corpus to allege that he was further confined and restrained by virtue of an order entered by the Justice of the Peace of Precinct No. 1 of Walker County following an examining trial on February 18, 1976 in Cause No. 133, such order binding appellant over to the grand jury on a charge of possession of a firearm by an ex-felon and setting bond at seventy-five thousand dollars. The amendment alleged that said bail is excessive in amount.

The record reflects that a stipulation was offered in evidence reciting that appellant had been previously convicted in the 54th Judicial District Court of McLennan County, Texas in Cause No. 14,160 on March 11, 1958, for the offense of murder, and that prior to that offense appellant was convicted in Criminal District Court Number Three of Harris County, Texas in Cause No. 68,-758, on April 16, 1953, under the name of Allen Edward Runo for the offense of robbery by assault. The record contains the further stipulation that appellant received a full and unconditional pardon in 1973 for all prior felony convictions.

The record reflects the introduction of the indictment in Cause No. 11,793 and the transcription of the court reporter’s notes at the examining trial hearing in Cause No. 133 in Justice Court, Precinct No. 1 of Walker County.

After the hearing in the habeas corpus proceeding, the court denied the request to lower the bonds.

Kathy Runo, wife of appellant, testified that bail could possibly be made in the amount of twenty thousand dollars.

The ability or inability of the accused to make bail does not, alone, control the amount. Ex parte Poindexter, 511 S.W.2d 529 (Tex.Cr.App.); Ex parte Von Bierberstein, 487 S.W.2d 345 (Tex.Cr.App.); Ex parte Roberts, 468 S.W.2d 410 (Tex.Cr. App.); Ex parte Nectoux, 455 S.W.2d 249 (Tex.Cr.App.).

Ex parte Roberts, supra, cited Article 17.-15, V.A.C.C.P. and quoted the applicable rules contained therein for fixing the amount of bail. Among those rules it is stated that “the bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with,” and “the nature of the offense [as well as] the circumstances under which it was committed are to be considered.”

Taking into consideration the “nature of the offense” necessarily involves the punishment permitted under the law. Ex parte Taylor, 531 S.W.2d 335 (Tex.Cr.App.); Ex parte Cascio, 140 Tex.Cr.R. 288, 144 S.W.2d 886.

Under V.T.C.A. Penal Code, Sec. 12.42, upon conviction in Cause No. 11,793 and a finding that appellant has been previously convicted of two felony offenses, the punishment is for life.

V.T.C.A. Penal Code, Sec. 46.05, provides that, “A person who has been convicted of a felony involving an act of violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.” This offense is classified as a felony of the third degree and upon conviction carries punishment of not more than ten nor less than two years. See V.T.C.A. Penal Code, Sec. 12.34. (Subdivision (b) of Section 12.34, supra, provides that in addition to imprisonment a fine not to exceed $5,000 may be assessed.)

The testimony adduced at the examining trial, introduced into evidence at the habeas corpus hearing, reflects that when appellant was arrested pursuant to a capias issuing after return of indictment in Cause No. 11,793 appellant was alone in an automobile in which one Colt .38 super caliber automatic pistol, one “Colt 357 Python — 357 Magnum caliber pistol,” and one box of .357 Magnum shells were found.

The court is authorized to consider the nature of the offense and fix bail sufficiently ’ high to give reasonable assurance that the undertaking will be complied with.

We find that bail of one hundred twenty-five thousand dollars in Cause No. 11,793 is not excessive. On the other hand, considering the nature and circumstances of the offense in Cause No. 133, we conclude that seventy-five thousand dollars is excessive bail, and order reduction of bail in that cause to five thousand dollars.

No abuse of discretion is shown in denying reduction of amount of bail in Cause No. 11,793 and bail in Cause No. 133 is set at five thousand dollars.

It is so ordered.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Blanchard Lee SAVANT, Appellant, v. The STATE of Texas, Appellee.
    No. 52121.
    Court of Criminal Appeals of Texas.
    April 7, 1976.

      Jimmy Phillips, Jr., Angelton, for appellant.
    Thomas L. Hanna, Dist Atty., Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for assault with a prohibited weapon. The jury assessed punishment at five (5) years and recommended probation pursuant to Art. 42.12, Vernon’s Ann.C.C.P. This attempted appeal followed, but we have concluded that same must be dismissed.

Although a judgment is not entered in a misdemeanor case where probation is granted, one is required to be entered in a felony case where probation is granted, Scott v. State, 461 S.W.2d 619 (Tex.Cr.App.1971). See and compare Art. 44.08(b), Vernon’s Ann.C.C.P., and Steffen v. State, 525 S.W.2d 162 (Tex.Cr.App.1975). Such judgment must contain the requisites of Art. 42.01, Vernon’s Ann.C.C.P.; and, it is essential that such judgment appear in the record; otherwise, the appeal must be dismissed. Art. 40.09, Sec. 1, Vernon’s Ann. C.C.P.; Scott v. State, supra.

Art. 42.01, supra, provides, in part:

“A ‘judgment’ is the declaration of the court entered of record, showing:
* * * * * *
9. In the case of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; .
10. That the defendant be punished as has been determined.”

The instrument in this record styled “judgment” does not contain the ninth and tenth requisites of Art. 42.01, supra. In fact, such instrument contains language to the contrary. It states, in part:

“It is therefore CONSIDERED, ORDERED and ADJUDGED that the Verdict and finding of guilty herein shall not be final, that no Judgment be rendered thereon, . . .”

Consequently, we have concluded that such instrument does not comport with Art. 42.-01, supra, and Art. 40.09, Sec. 1, supra. Accordingly, the appeal must be dismissed.

If a correct judgment was in fact rendered, but was incorrectly entered on the minutes of the court, such judgment may now be entered nunc pro tunc pursuant to Art. 42.06, Vernon’s Ann.C.C.P., under the procedure outlined in Shaw v. State (Tex.Cr.App., No. 51,701, delivered February 11, 1976). If a correct judgment was not, in fact, rendered, the same may now be rendered and entered of record in the presence of appellant and his counsel, after notice and hearing. Appellant may then give notice of appeal pursuant to Art. 44.08 (b), supra, and the appeal proceed under the appropriate sections of Art. 40.09, Vernon’s Ann.C.C.P.

The appeal is dismissed.

      . See Art. 42.13, Sec. 4, Vernon’s Ann.C.C.P.; Ex parte Smith, 493 S.W.2d 958 (Tex.Cr.App. 1973); Coby v. State, 518 S.W.2d 829 (Tex.Cr. App.1975); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App., No. 51,574, delivered March 17, 1976).

      . See Longoria v. State, 44 S.W. 1089 (Tex.Cr. App.1898); McCuin v. State, 86 Tex.Cr.R. 497, 217 S.W. 1038 (1920).

      . Such judgment should include the terms and conditions of probation.

      . Caveat: See and compare Steffen v. State, supra; Faurie v. State, 528 S.W.2d 263 (Tex.Cr. App.1975); Woods v. State, 532 S.W.2d 608 (Tex.Cr.App. 1976); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App. No. 51,574, delivered March 17, 1976).

      . The parties may of course waive the times provided in Art. 40.09, supra, see Art. 1.14, Vernon’s Ann.C.C.P., and the appeal can be immediately returned to this Court. Such waiver should be contained in the record returned to this Court.