author: TEAGUE, Judge.

text:
    John David TEAMER, Appellant, v. The STATE of Texas, Appellee.
    No. 977-83.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.

      Floyd W. Freed, III, Edward L. Lasof, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., and Timothy G. Taft and Patricia Saum, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., and Cathleen Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

This Court granted the petition for discretionary review that was filed on behalf of John Davis Teamer, appellant, in order to review the holding that the Houston [Fourteenth] Court of Appeals made in Teamer v. State, (Tex.App.-Houston [Fourteenth] 1983), that the trial court did not err in denying the motion to dismiss the indictment that appellant had filed prior to trial. Appellant asserted in his motion that because the State had failed to comply with the Speedy Trial Act, see Art. 32A.02, V.A. C.C.P., he was entitled to have the indictment dismissed. The trial court disagreed and denied his motion. On appeal, the fourteenth court of appeals overruled his contention that the trial court had erred. We affirm.

All agree that the criminal action against appellant originally commenced on December 2, 1980, the day he was arrested for possessing with intent to deliver the controlled substance cocaine. In this instance, because of the provisions of the Speedy Trial Act, the State had 120 days from December 2nd, or until April 1, 1981, to be ready for trial, unless it could bring itself within the excludable time provisions provided for in the Act. Trial did not actually occur until May 4, 1981.

The State did not file its written announcement of ready until April 8, 1981, which was more than 120 days from the date the criminal action originally commenced against appellant. The record does not reflect that the State ever made any oral announcement of readiness. The written announcement of ready also does not reflect that the State was at all times ready for trial prior to April 8th. Without more, because more than 120 days had expired from the date the criminal action against appellant had commenced, it was incumbent upon the trial court to grant appellant’s motion to dismiss the pending indictment. Furthermore, at no time, either orally or in writing, did appellant waive his right to a speedy trial as did the defendant in Rosebury v. State, 659 S.W.2d 655 (Tex. Cr.App.1983). The question we must answer now surfaces: Were there sufficient excludable times, as provided in the Speedy Trial Act, that excused the State from making an earlier announcement of ready? We answer the question in the affirmative.

The record reflects that a complaint was filed against appellant the day after his arrest. However, the complaint was signed on the same day of appellant’s arrest. No prior felony convictions were alleged in the complaint-for enhancement of punishment purposes.

The record also reflects that on December 17, 1980, appellant was indicted by a Grand Jury of Harris County for the offense for which he was arrested. Two prior felony convictions were alleged in the indictment-for enhancement of punishment purposes.

On February 11, 1981, appellant filed a motion to quash the indictment, asserting therein that both of the alleged prior felony convictions were void. Subsequently, on March 23, 1981, appellant amended the motion to quash. He additionally asserted that the primary offense allegation was ineffective to give him notice of the offense he was accused of committing.

The record of appeal reflects that on March 24, 1981, the “indictment [was] quashed” by the trial judge. On the same day, after the indictment was dismissed, an assistant district attorney filed a new complaint against appellant, which alleged that appellant was guilty of possessing with intent to deliver the controlled substance cocaine. As to the primary offense, the allegations in the complaint are in all things identical to the above indictment. However, one of the prior felony convictions that had been alleged in the above indictment was replaced with another prior felony conviction.

On April 6, 1981, a reindictment, which was in all things substantively identical to the complaint that was filed on March 24, 1981, was filed against appellant.

On April 8, 1981, appellant, through counsel, filed a written motion to dismiss the reindictment, asserting therein that he was entitled to have the reindictment dismissed because the State had failed to satisfy the provisions of the Speedy Trial Act. See Art. 32A.02, supra. On that date, the State also filed a written’announcement of ready for trial, but such motion was not retrospective. After a hearing, appellant’s motion to dismiss was denied by the trial judge.

Thereafter, trial commenced on May 4, 1981. A jury found appellant guilty as charged and assessed punishment, enhanced by the alleged two prior felony convictions, at life imprisonment. See V.T, C.A., Penal Code, Section 12.42(d), prior to recent amendment.

Appellant appealed his conviction and sentence to the Houston [Fourteenth] Court of Appeals. That court, relying upon one of its decisions, Garcia v. State, 625 S.W.2d 831 (Tex.App.—Houston [14th Dist.] 1981), pet. ref. 1982, rejected, inter alia, appellant’s contention that the trial court had erred in denying his motion to dismiss because the State had failed to comply with the Speedy Trial Act. The court of appeals held that the State’s announcement of ready, that was made on April 8, 1981, was timely because of certain “agreed resettings” that counsel for appellant had signed on behalf of appellant.

Among other things, Garcia v. State, supra, held that “agreed resettings of the case are clearly excluded from the time as ‘a period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel ... ’” (833). Also see Art. 32A.04(3), supra. In this instance, the court of appeals concluded that because of the “agreed re-settings,” the time periods from March 25, 1981 until April 8, 1981, and from April 9, 1981 until May 4, 1981, should be excluded.

The “agreed resettings,” however, do not reflect that they occurred only at the insistence of the appellant. They were neither signed by the appellant nor approved by the trial judge.

The reset form dated March 25th only reflects that it was signed by the respective attorneys for the parties and approved by the person who we assume was the court coordinator. The attorneys agreed that the cause would be reset from March 25th until April 8th, for “ARR,” which we assume is an abbreviation for “arraignment.” The April 8th form is in all things identical to the March 25th form except that the attorneys agreed that the cause would be reset from April 8th until May 4th, for “trial,” which is the date trial actually commenced.

This Court has held in the past that until the Speedy Trial Act is timely and properly invoked by the accused, the State does not have to make any declaration or announcement of present readiness, or that it had been ready for trial since the criminal action commenced. Nor, until the accused invokes the Speedy Trial Act, is the State required to show that sufficient periods of time were excludable under the Act. Smith v. State, 659 S.W.2d 828 (Tex.Cr.App.1983). However, a written or oral announcement of ready by the State creates a prima facie case that the State is ready for trial and the burden then shifts to the accused to establish, if he can, that the State was in fact not ready for trial. Santana v. State, 658 S.W.2d 612 (Tex.Cr.App.1983).

In the instance where the statutory time period has expired, and the accused has timely and properly invoked the Act, and motions the trial court to dismiss the indictment because the State has failed to comply with the Act, it is incumbent upon the trial court to grant the motion to dismiss, unless the State establishes that it was then ready for trial and had been ready for trial at all times since the criminal action commenced, or it establishes that sufficient periods of time within the prescribed period of time are excludable under the Act. Jordan v. State, 639 S.W.2d 477 (Tex.Cr.App.1982); Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980). Thus, if the statutory time period has expired, and the accused has invoked the Act, then the State must demonstrate both that it was then-ready and had been ready for trial at all times within the statutory time period, or else the State must demonstrate or establish that sufficient periods of time are ex-cludable under the Act, in order to bring its announcement of readiness within the statutory 120 days. Smith, supra, at page 830. Notwithstanding what we have stated, we pause to point out that there is no requirement that the case proceed to trial within the Speedy Trial Act time limits; the Act only requires that the State be ready to proceed to trial within the prescribed period of time as provided for in the Act. Phillips v. State, 659 S.W.2d 415 (Tex.Cr.App.1983).

In this instance, the record is devoid of any evidence, nor does the State assert to the contrary, that it had been ready within the statutory time period of 120 days, or 120 days from December 2, 1980, or on or before April 1, 1981. Its first and only announcement of ready for trial in this cause occurred on April 8, 1981.

The court of appeals held that the State’s announcement of ready was timely made because it concluded that the period of time from March 25, 1981 through May 4, 1981 should be excluded because of the “agreed resets” that the appellant’s attorney had signed on behalf of appellant. If this holding is correct, the State would be entitled to add 41 days beyond the 120th day, or April 1, 1981, thus extending the 120 days’ time requirement to May 11, 1981. We find that the court of appeals reached the right result but for the wrong reason. See, however, Paris v. State, 668 S.W.2d 411 (Tex.Cr.App.1984); Rosebury v. State, supra; Richardson v. State, 629 S.W.2d 164 (Tex.App.Dallas 1982), pet. ref’d 1982.

Art. 32A.02, Sec. 2(c), supra, of the Act expressly provides: “If an indictment, information, or complaint is dismissed on motion of the defendant, a criminal action commences for the purposes of the article when a new indictment, information, or complaint against the defendant is filed in court, unless the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is detained or released.” [Emphasis added] In this instance, appellant was originally indicted on December 17, 1980, after having been arrested on December 2, 1980. His amended motion to quash the indictment, which was filed on March 23,1981, was granted by the trial court on March 25, 1981. On April 8, 1981, appellant was reindicted for the same offense, albeit a different prior felony conviction in the reindictment replaced one of the prior felony convictions that had been alleged in the original indictment. Thus, for purposes of the Speedy Trial Act, the criminal action commenced on March 25, 1981, the day the first indictment was dismissed. We use the date of March 25th because both before and after the dismissal appellant was incarcerated. The Act expressly provides that in the instance where the indictment, information, or complaint is dismissed on motion of the accused, the criminal action shall be deemed to have commenced “when he is detained.”

We also find that the reindictment did not change the State’s burden of proof. Cf. Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975). The only significant difference between the original indictment and the reindictment is that in the reindictment another prior felony conviction replaced one of the prior felony convictions that had been alleged in the original indictment.

We also reject appellant’s contention that because there was no indictment pending on April 1st, and no waiver to be tried on an indictment had been executed by appellant, that the State could not have been ready for trial on that date, which was the 120th day from the day the criminal action originally commenced against appellant. We agree with appellant that no indictment was pending against him on April 1st. However, as assistant district attorney Timothy G. Taft of Harris County states in his brief, “[T]he only reason for the State’s lack of indictment [on April 1st] was because the appellant had [successfully] moved to quash [the first] indictment... [Thus,] this is not a case such as Pate v. State, supra, wherein the State never had an indictment prior to the expiration of the 120 days].” (pp. 3-4 of State’s Brief on Appellant’s Petition for Discretionary Review.) Also see Ward v. State, 659 S.W.2d 643 (Tex.Cr.App.1983), in which this Court overruled Kernahan v. State, 643 S.W.2d 210 (Tex.App.-El Paso 1982), which had held that “the existence of a valid charging instrument is as much an element of State preparedness as acquisition of evidence, witness availability and presence of the defendant.”

Finding that appellant’s contention is without merit, and further finding that the court of appeals reached the right result, its judgment is affirmed.

ONION, P.J., concurs in the result.


source: Caselaw Access Project

license: Public Domain

text:
    Russell Kent DICKINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 292-84.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.

      Arch C. McColl, III, S. Michael McCol-loch, David W. Coody, Dallas, for appellant.
    Henry Wade, Dist. Atty., Anne B. Weth-erholt, Janice Warder and Chris Stokes, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

We granted the petition for discretionary review that was filed on behalf of Russell Kent Dickinson, appellant, in order to make the determination whether the Dallas Court of Appeals correctly rejected appellant’s contention that the prosecuting attorney’s jury argument, that was made at the punishment stage of the trial, that appellant had failed to express in the courtroom “remorse,” “shame,” or “pity” towards or for his victim was an impermissible comment on the appellant’s failure to testify. See Dickinson v. State, 667 S.W.2d 576 (Tex.App.—Dallas 1984). Because we find that the court of appeals erroneously decided appellant’s contention, we will reverse its judgment.

Appellant was convicted on a plea of not guilty by a jury of the offense of aggravated rape of a child, who the record reflects was nine years of age at the time and had an I.Q. of only 35. Thereafter, a punishment hearing was conducted, after which the jury assessed punishment at thirty (30) years’ confinement in the Department of Corrections. Appellant did not testify at either stage of his trial. We have carefully examined the record to see whether at any time during the trial, when appellant was in the courtroom, he conducted himself in an unacceptable manner, but our reading of the record reflects that appellant during all of these times conducted himself in an acceptable manner.

Although we find that the facts of this case would easily shock the sensibilities of the average person, nevertheless, such did not permit the prosecuting attorney to make improper argument to the jury. In sum, a prosecuting attorney, though free to strike hard blows, is not at liberty to strike foul ones, either directly or indirectly. Jackson v. State, 529 S.W.2d 544, 546 (Tex.Cr.App.1975).

It is now elementary that the object and principal purpose of argument to the jury is to aid and assist it in properly analyzing the evidence and to arrive at a just and reasonable conclusion based on the evidence alone. The law provides for, and presumes a fair trial, free from improper jury argument by the prosecuting attorney. Richardson v. State, 158 Tex.Cr.R. 536, 257 S.W.2d 308 (1953). Improper argument on the part of the prosecuting attorney occurs when in his or her argument to the jury the prosecuting attorney violates a mandatory provision of a statute, makes a manifestly improper, harmful, or prejudicial argument, or the prosecuting attorney injects through his argument some new and harmful fact into the case. Vineyard v. State, 131 Tex.Cr.R. 476, 100 S.W.2d 362 (1937).

Art. 38.08, V.A.C.C.P., expressly provides that if the accused invokes his right not to testify during his trial, such shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by the prosecuting attorney. Recently, in Brown v. State, 617 S.W.2d 234 (Tex.Cr.App.1981), this Court stated that “the right of self-incrimination does not end with the jury finding the defendant guilty for, as Presiding Judge Onion said in Brumfield v. State, [445 S.W.2d 732 (Tex.Cr.App.1969) ] ‘The mere finding of guilt does not terminate the privilege against self-incrimination .... the privilege ceases only when liability to punishment no longer exists..This Court went on to hold in Brown, supra, that it was reversible error if the trial court, at the punishment stage of the trial, over objection, failed to give an instruction on the defendant’s failure to testify at that stage of the trial. In this instance, the trial judge instructed the jury at both stages of the trial that they could not consider the appellant’s failure to testify in deciding his guilt or his punishment.

This Court has often held that when a prosecuting attorney violates the provisions of Art. 38.08, supra, and the matter is brought before this court for review, this Court’s duty is clear, and the responsibility for the reversal must rest solely upon the prosecuting attorney. Lankford v. State, 156 Tex.Cr.R. 113, 239 S.W.2d 394 (1951). Such error is rarely cureable by an instruction to the jury to disregard.

In this instance, one of the prosecuting attorneys, near the end of her jury argument at the punishment stage of the trial, argued to the jury, inter alia, “And you know, another pretty important [piece of] evidence that you can consider is what you’ve observed of this man right here...” The prosecuting attorney soon thereafter, after pointing towards the appellant, argued the following: “You haven’t seen one iota of remorse, one iota of shame.” Appellant’s objection to this argument was overruled. The prosecuting attorney also, but later, after again pointing towards the appellant, argued the following to the jury: “And you didn’t see any pity for that nine-year old retarded girl that was led into this courtroom from that man over there.” Appellant’s objection to this argument was also overruled. The court of appeals held that “the comments directed the jury’s attention only to the appellant’s demeanor in court and not to the absence of his testimony.” [Our Emphasis]. We are unable to agree with this holding.

The above statements the prosecuting attorney made to the jury clearly do not fall within the permissible perimeters of proper jury summation, which are stated in Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973), and thus need not be restated here. Also see Campbell v. State, 610 S.W.2d 754 (Tex.Cr.App.1981); Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); Dunbar v. State, 551 S.W.2d 382 (Tex.Cr.App.1977).

There is not anything in the record of appeal that might tend to reflect or indicate what appellant’s “demeanor” might have been when he was in the courtroom during his trial. As noted, we have carefully read the record and have yet to find any instance where appellant misbehaved or conducted himself in other than an acceptable manner during the times he was in the courtroom.

The word “demeanor” is usually defined to mean the following: “The way in which a person behaves or conducts himself; deportment; manner.” 350 The American Heritage Dictionary of the English Language (1973 Edition). Thus, had the record reflected that appellant misbehaved or conducted himself in the jury’s presence in an unacceptable manner, then it would have been proper for the prosecuting attorney, in her jury argument, to have commented on the appellant’s “demeanor.” But as noted, we have yet to find, and the State does not refer us to any place in the record, any act on the part of the appellant that might enable us to conclude that he misbehaved or conducted himself in an improper manner during the course of his trial.

We also do not find that the statements the prosecuting attorney made concern an act or event of such common occurrence that its recognition does not require any expertise. Before it is permissible for either attorney to call to the attention of the jurors that which the jurors had an equal opportunity to observe, such must be reflected in the record or be of such common occurrence that its recognition requires no expertise. Jordan v. State, 646 S.W.2d 946, 948 (Tex.Cr.App.1983).

Furthermore, for us to put our stamp of approval on the prosecuting attorney’s statements that appellant had not shown the jury that he was remorseful or shameful for what he was accused of committing would amount to overruling what is now axiomatic in our law: that a prosecutor’s comment on a defendant’s failure to testify offends both our State and Federal Constitutions, as well as our statutory law. Owen v. State, 656 S.W.2d 458 (Tex.Cr.App.1983). In Owen, we expressly stated the following: “If the remark complained of called the jury’s attention to the absence of evidence that only the testimony from the appellant could supply, the conviction must be reversed.” (459).

It is now well settled in this State that for the argument or comment of the prosecuting attorney to offend against Art. 38.08, supra, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused’s failure to testify must be a necessary one. It is not sufficient that the language used might be construed as an implied or indirect allusion thereto. Ramos v. State, 419 S.W.2d 359, 367 (Tex.Cr.App.1967). The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused’s failure to testify. Banks v. State, 643 S.W.2d 129, 134 (Tex.Cr.App.1982). Also see Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982). Of course, in applying this test, the facts and circumstances of each case must be analyzed to determine whether the language used was of such character. McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975); Roller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Overstreet v. State, 470 S.W.2d 653 (Tex.Cr.App.1971).

The court of appeals concluded that the prosecutor’s comments regarding the appellant’s failure to show the jury that he was remorseful or shameful, or had pity for his victim, was directed only to the appellant’s “demeanor” in the courtroom and not to the absence of his testimony. In so holding, the court of appeals relied upon several of this Court’s decisions for authority.

We find that the court of appeals’ reliance upon Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), misplaced for several reasons. First and foremost is the fact that the trial judge in that cause sustained the defendant’s objections and instructed the jury to disregard the arguments that were made by the prosecuting attorney. This court held that the instructions were sufficient to cure the errors, if any. Secondly, the opinion points out that during the course of the trial, the defendant “tried to mentally escape [from the trial] many times by falling asleep.” Thus, in the context of the prosecuting attorney’s jury argument that was made in Hawkins, supra, that the jurors had not seen any showing of remorsefulness by the defendant, we find that the prosecuting attorney’s statements did not constitute either an indirect or direct comment on the defendant’s failure to testify, but, instead, amounted to directing the jurors’ attention to that which they themselves had witnessed, namely, that the defendant had slept during his trial. Although the choice of words was unfortunate, nevertheless, in context, the prosecuting attorney’s remarks amounted to little more than what had been before the jury to witness, namely, that the defendant was not interested in his trial, which was a logical inference one might draw from a defendant who slept during his trial.

The court of appeals also attempted to distinguish Thomas v. State, 638 S.W.2d 481 (Tex.Cr.App.1982), which held that argument going to the failure of the defendant to present testimony going to contriteness was improper argument. However, the decision in Thomas v. State, supra, turned on the distinction that is made between the instance where the defendant himself fails to adduce evidence of contrition and the instance where the defendant could have, but did not, present testimony from other available witnesses. This Court held that the comment that was made in that cause did not constitute either an indirect or direct comment on the defendant’s failure to testify. However, in so holding, this Court pointed out the following: “It [contriteness] is, in short, a state of mind— and a highly personal one at that. Indicia of eontriteness is necessarily generated after an offense by the one who is sorrowful for what he has done. That one is contrite about it must be communicated in order for others to know.” In a footnote, the following was also pointed out: “So long as contrition ‘is locked up and kept secret... there is no way in the world that the State can prove it.’ ” However, even when the defendant’s contrition is no longer a locked up secret, by revealing same to others, this does not permit those persons to testify because such would constitute a self-serving declaration on the part of the defendant, which is inadmissible eyidence. The argument that was made in Thomas, supra, was thus improper because the prosecutor faulted the defendant for that which he could not legally accomplish through testimony of his wife and sister in that they were not competent and material witnesses on the subject of his state of mind with respect to contrition. Also see Elkins v. State, 647 S.W.2d 663, fn. 7 (Tex.Cr.App.1983).

We find that the complained of arguments in this cause constitute, not a proper expression upon the appellant’s courtroom demeanor, but, instead, constitute indirect comments on the appellant’s failure to testify. The necessary and natural effect of the prosecutor’s comments, that went to “remorsefulness,” “lack of showing of sorrow for the victim,” and “failure to exhibit shamefulness,” amounted to directing the jury’s attention to the failure of the appellant to testify to these various mental states, which, as there is no showing that they were ever unlocked and their secrecy removed, could have only been known by the appellant, or the appellant was the only person who could have given evidence going to these mental states, which would have required him to give up his right of self-incrimination. We are compelled to agree with appellant’s counsel that the attempt by the prosecuting attorney not to comment on the appellant’s failure to testify, by using the word “demeanor,” amounted to a transparent attempt to call the jury’s attention to the appellant’s invocation of his right to remain silent. Compare how the prosecuting attorney phrased his remarks in this cause, in order to get around the prohibition, with how the prosecuting attorney phrased his remarks in Cortez v. State, 683 S.W.2d 419 (Tex.Cr.App.1984), to get around past decisions of this Court.

Furthermore, as the Florida Supreme Court has pointed out, remorse is an active emotion and its absence, therefore, can be measured or inferred only from negative evidence. Pope v. State, 441 So.2d 1073 (Fla.1983).

Thus, in this instance, for us to approve the argument that was made by one of the prosecuting attorneys would amount to permitting jurors to infer lack of remorse from the exercise by the appellant of his constitutional right to remain silent. We decline to approve the argument on the specious ground that it only went to appellant’s demeanor in the courtroom.

The judgment of the court of appeals is reversed and the cause remanded to the trial court for a new trial.

W.C. DAVIS, J. dissents.

APPENDIX A
PROSECUTOR:
And you know, another pretty important evidence that you can consider is what you’ve observed in this courtroom. The demeanor in this courtroom of this man right here. You know, when [the complainant] was led into that courtroom she hid her face. She hid her face in shame.
DEFENSE COUNSEL: Your Honor, we’d object to that because there isn’t any evidence that she hid her head in shame.
THE COURT: Sustained.
DEFENSE COUNSEL: We ask that the jury be instructed to disregard the remarks and testimony of counsel.
THE COURT: The jury will disregard the last comment of the Assistant District Attorney and not consider it for any purpose.
DEFENSE COUNSEL: We move for a mistrial.
THE COURT: Your motion for mistrial is denied.
PROSECUTOR: Well, you know that Selena hid her face. You haven’t seen one iota of remorse, one iota of shame.
DEFENSE COUNSEL: Your Honor, we object to the prosecutor’s coming over and pointing at the defendant and saying that we have never seen any remorse or shame as an indirect comment on the defendant’s failure to testify, and consequently we object to it.
THE COURT: Your objection is overruled.
DEFENSE COUNSEL: Exception.
PROSECUTOR: And you didn’t see any pity for that nine-year-old retarded girl that was led into this courtroom from that man over there.
DEFENSE COUNSEL: Your Honor, we object to that the prosecutor was pointing directly at the defendant when she said “that man over there” and that’s an indirect comment upon the defendant’s failure to testify and we so move the Court.
THE COURT: Your objection is overruled.
DEFENSE COUNSEL: Exception.

      . The entire portion of the complained of argument is attached hereto as "Appendix A".

      . The record reflects that because the complainant was found not to be competent to testify, she was not permitted to testify in this cause. However, during the course of the trial, she was brought into the courtroom for identification purposes.


author: ONION, Presiding Judge. CLINTON, Judge, TEAGUE, Judge,

text:
    Floyd Ray GEARING, Appellant, v. The STATE of Texas, Appellee.
    No. 906-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 13, 1985.
    Neal Y. Pickett, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and J. Sidney Crowley, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted in a bench trial for possession of a firearm by a felon. Punishment, enhanced by two prior convictions, was assessed at life imprisonment.

On appeal the Houston (14th) Court of Appeals affirmed the conviction, but because of error in assessment of punishment, the cause was remanded to the trial court for the reassessment of punishment. Gearing v. State, 685 S.W.2d 339 (Tex.App.—Houston [14th] 1983). Appellant’s petition for discretionary review requested we review the Court of Appeal’s ruling the trial court did not err in overruling “appellant’s motion to suppress the evidence for the reason that the arrest and subsequent search of the appellant violated this Appellant’s rights as guaranteed to him by the Fourth Amendment to the Constitution of the United States of America.” We granted the petition on this basis.

On original submission we described the question as to whether the “detention” of appellant that led to the discovery of the pistol was lawful. This was the way the Court of Appeals described the question though appellant’s third ground of error and his petition for discretionary review advanced his contention in the language quoted above. On original submission we reversed the Court of Appeals in a 5 to 4 decision. We granted the State’s motion for rehearing to reconsider the admission into evidence of the pistol in question.

Sgt. Steven A. Vaughn of the Pasadena Police Department, a nine year veteran, was on duty in uniform from 10 p.m. July 19,1981 until 6 a.m. on July 20th. He lived at the Sandstone Two Apartment Complex where he also served as Security Officer for his rent. In the parking lot of the apartment complex there had been 30 arrests in the last six months, three or four recent arrests that Vaughn described as narcotic related and one for burglary. During the graveyard shift on the date in question, Vaughn went home for “lunch.” He left his apartment about 3 a.m. and drove his patrol vehicle about 300 feet or so in the parking lot when he observed a car parked in the parking lot area with its lights off and the motor running. He observed the windows were up and a man was “slouched” over or down in the driver’s seat. The man was wearing a cowboy hat.

While Vaughn thought the man might be sleeping with the motor running, he also suspected that criminal activity might be afoot given the hour and recent arrests made in the same parking area, including one two nights before involving a suspected automobile theft. The suspected theft turned out to be a repossession of the car attempt which led to a further incident when the person arrested returned to threaten the owners of the car, Buddy and Holly Rogers, tenants of the apartment complex. Vaughn was aware of the incident and aware also of late night traffic of individuals into and out of the Rogers’ apartment. Vaughn suspected narcotic dealings.

Vaughn stopped his marked patrol vehicle and with his flashlight approached the 1978 Lincoln automobile with its motor running. As he approached the man, identified as the appellant, in the car rolled down the window. Officer Vaughn asked appellant what he was doing there. Appellant replied he was there to see a friend, Holly Rogers. The Rogers’ apartment was in another building and there were parking spaces much nearer to the apartment than where appellant was parked. Vaughn suspected appellant may have been there to harm the Rogers. Vaughn asked appellant to step out and give him some identification. As appellant got out, the dome light of the car came on, and with lighting in the parking area, and with Vaughn’s flashlight shining toward appellant, Vaughn saw a pistol in a holster on the floorboard four or five inches out from the driver’s seat. Appellant gave Vaughn his driver’s license and stepped to the rear of the car. Vaughn called for a back-up unit. Officer Espinoza responded. When he arrived, appellant was handcuffed and frisked. Espinoza recovered the pistol from appellant’s car. It was found to be loaded.

A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain his status quo momentarily while obtaining more information. An occupant of an automobile is just as subject to a brief detention as is a pedestrian. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.1978); Johnson v. State, 658 S.W.2d 623 (Tex.Cr.App.1983). Circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976); Shaffer v. State, supra. The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct may be reasonable. Shaffer v. State, supra.

In Johnson v. State, supra, this Court wrote:

“In order to justify the intrusion, the law enforcement officer must have specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Detention based on a hunch is illegal. Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981). There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity is related to a crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.1978).

The Court of Appeals wrote:

“Based upon the totality of the circumstances, we find that the officer had sufficient reason to make an investigative stop. Vaughn testified about several recent arrests made in the Sandstone complex parking lot for burglary, theft and drug possession and trafficking. At such an early hour of the morning, and under the circumstances detailed above Vaughn acted reasonably in attempting to secure more information from appellant. The circumstances would justify the officer’s suspicion that some activity out of the ordinary was occurring or had occurred. Thus, the gun was subject to seizure when Vaughn spotted it in plain view while making a lawful investigative stop. Ebarb v. State, 598 S.W.2d 842 (Tex.Crim.App.1979); Ground of error three is overruled.”

On original submission the majority of this Court wrote:

“The facts of this case do not indicate that any activity out of the ordinary was occurring or had occurred, nor that appellant was connected to any such activity, nor that any such activity was related to a crime. Indeed, the circumstances observed by the officer were as consistent with innocent activity as with criminal activity, and in fact there was no suggestion of criminal activity afoot whatsoever. It was error to overrule the motion to suppress.”

Upon the State’s motion for rehearing we have again examined the facts and the law applicable thereto.

In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), we find the United States Supreme Court wrote:

“Second, law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, 442 U.S. 200, 120 n. 12, 99 S.Ct. 2248, 2255, n. 12, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 31, 32-33, 88 S.Ct. 1868, 1885-1886, 20 L.Ed.2d 889 (1968) (Harlan, J., concurring); id. at 34, 88 S.Ct. at 1886 (White, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion by Stewart, J.). The person approached, however, need not answer any question put to him; indeed he may decline to listen to the questions at all and may go his way. Terry v. Ohio, supra, 392 U.S. at 32-33, 88 S.Ct. at 1885-1886 (Harlan, J., concurring) id. at 34, 88 S.Ct. at 1886 (White, J., concurring).
“Asking for and examining Royer’s ticket and his driver’s license were no doubt permissible in themselves....” Royer, 103 S.Ct. at p. 1326.

We do not interpret Article I, § 9, Texas Constitution, to require more than the Fourth Amendment in the above described situation.

The instant case shows that Vaughn, a nine year veteran of the Pasadena Police Department, left his apartment about 3 a.m. on the date in question to return to duty. He was in police uniform and in a marked police vehicle. He was also the Security Officer for the apartment complex, was familiar with the criminal activity in the parking lot or lots thereof, and ,of recent arrests, etc. After driving 300 feet, he observed a 1978 Lincoln automobile parked without lights with the motor running, the windows rolled up, and an individual slouched down in the front seat. He considered the individual may have fallen asleep with the motor running and was in danger, and he was further suspicious of criminal activity being afoot, given the hour and other circumstances. Officer Vaughn approached the parked car to investigate the situation. As he did, appellant rolled down the window, and when asked what he was doing there, appellant stated he was there to see a friend, Holly Rogers. Vaughn knew threats had been made against the Rogers two nights before, and further suspected narcotic trafficking at the Rogers’ apartment, and he had made recent arrests for narcotic offenses on the parking lot in question. Officer Vaughn also testified he didn’t know who else or what might be in the automobile, and for his personal safety he didn’t want to be in position where the car door could be swung against his person. At this point the officer, being where he had a right to be, asked appellant to step out and show him some identification. When appellant stepped out, the officer saw a pistol in a holster. We agree upon further study with the Court of Appeals that Vaughn acted reasonably in attempting to secure more information, and that the pistol was properly subject to seizure when Vaughn saw it in plain view under the circumstances described. The pistol was properly admitted into evidence.

Our State’s Attorney urges also that the error, if any, was not properly preserved. The appellant filed a pre-trial motion to suppress evidence. When presented, the trial judge suggested it be “carried along” with the jury case, and passed upon when the issue was raised. Appellant’s counsel agreed. No ruling was then obtained on the motion to suppress. Later trial by jury was waived. At the bench trial when the pistol was offered appellant’s counsel expressly stated, “No objection.” After the conclusion of all the ° testimony, the trial judge permitted oral argument on the motion to suppress and overruled it.

It is settled that when a pre-trial motion to suppress evidence is overruled, the accused need not subsequently object to the admission of the same evidence at trial in order to preserve error. Ebarb v. State, 598 S.W.2d 842 (Tex.Cr.App.1980); Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975); Harryman v. State, 522 S.W.2d 512 (Tex.Cr.App.1975). However, when the accused affirmatively asserts during trial he has “no objection” to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pre-trial ruling. Harris v. State, 656 S.W.2d 481 (Tex.Cr.App.1983); Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1976); McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975).

In the instant case the appellant failed to obtain a pre-trial ruling on the said motion, and stated “no objection” at trial upon offer of the pistol. It would appear he waived the error, if any, unless it can be argued that in permitting counsel to argue the pre-trial motion after trial and ruling upon the same, the court in an unorthodox manner allowed the preservation of error, if any. Be that as it may, no error in our opinion is presented upon consideration of the merits.

The State’s motion for rehearing is granted, our previous order of reversal is withdrawn, and the judgment of the Court of Appeals is affirmed.

MILLER, J., dissents.

CLINTON, Judge,

dissenting.

On any other day, having discovered that “error, if any, was not properly preserved,” this Court would simply say that the court of appeals should not have written on the question claimed to be presented, and dispose of the cause on that basis. Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984); see Laday v. State,—S.W.2d-(Tex.Cr.App. No. 399-84, delivered January 9, 1985). Today, however, the majority not only gives full treatment to the Fourth Amendment issue it believes to have been waived by appellant and finds itself in agreement with the opinion of the court of appeals, but also it gratuitously adds: “We do not interpret Article I, § 9, Texas Constitution, to require more than the Fourth Amendment in the above described situation.” Respectfully, I dissent.

Since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court usually has not made any distinction in law between a “stop and frisk” situation and one where the citizen is already at rest. Although it quotes from the opinion in just such a case, the majority does not explain why on the facts of the matter Johnson v. State, 658 S.W.2d 623 (Tex.Cr.App.1983) is not controlling here.

Also we are left to wonder by what authority Officer Vaughn “asked appellant to step out and show him some identification.” That Vaughn was “where he had a right to be” is not enough under Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). The majority would have it that quoted portions of the plurality opinion in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), permit what Vaughn did here.

There is more to the first paragraph than is excerpted, viz:

“He may not be detained even momentarily without reasonable objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation to Mendenhall omitted.] If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.”

It is clear from Brown v. Texas, supra, that Vaughn “seized” appellant.

“When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.” Id., 443 U.S. at 50, 99 S.Ct. at 2640.

The unanimous opinion in Brown v. Texas further pointed out that the Supreme Court has “required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity,” and then found that “[t]he flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct.” Id., 443 U.S. at 51, 99 S.Ct. at 2641.

The partial sentence reproduced by the majority is written in the following context:

“First it is submitted that the entire encounter was consensual and hence Royer was not being held against his will. We find this submission untenable. Asking for and examining Royer’s ticket and driver’s license were no doubt permissible in themselves, but when the officer identified themselves as narcotics officers, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for purposes of the Fourth Amendment. These circumstances surely amount to a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (Opinion of Stewart, J.).”

Therefore, even under Fourth Amendment law the majority is wrong, and that is all appellant contended for in his petition for discretionary review. His first ground for review asserts that the trial court erred “for the reason that the arrest and subsequent search ... violated [his] right as guaranteed by the Fourth Amendment to the Constitution of the United States.” He does not claim that the court of appeals based its decision on state law. The State does not advance any in the motion for rehearing. Thus, this Court is not called on to interpret Article I, § 9, and should not do so in the first instance. See Eisenhauer v. State, 678 S.W.2d 947, 948 and 955 (Tex.Cr.App.1984).

For all those reasons I dissent.

TEAGUE, Judge,

dissenting.

This Court granted the petition for discretionary review that was filed on behalf of Floyd Ray Gearing, appellant, in order to review the published opinion of the court of appeals, in which that court held that the detention of appellant by a police officer, that led to the recovery of the pistol for which appellant was prosecuted, was lawful.

On original submission, a majority of this Court reversed the judgment of the court of appeals. It held that the police officer who arrested appellant acted unlawfully. Relying upon the facts of the case, as stated in the opinion by the court of appeals, I dissented without opinion.

A majority of this Court on rehearing now informs us that the opinion of the court of appeals is factually incorrect.

It is now axiomatic that an appellate court judge should never misstate the facts of a case in an opinion he authors for his particular court. Just recently, in Laday v. State, 685 S.W.2d 651 (Tex.Cr.App.1985), this Court implicitly pointed out that if a case is assigned to a particular appellate court judge, he, and no other person, including any member of his staff, has the responsibility to read the entire record on appeal, from the first to the last page, in order that the opinion he authors for his court will be factually correct. Otherwise, if an opinion erroneously states the facts of a case, this might not only cause the author of the opinion to be embarrassed, such can also cause his fellow judges to be embarrassed. Of course, it can cause other appellate court judges who rely on the opinion to also be embarrassed. I confess. I am embarrassed, because had the opinion of the court of appeals correctly stated the facts of the case, I would not have voted to dissent to the majority opinion on original submission.

Judge Odom, the author of the majority opinion on original submission, in ordering appellant’s conviction reversed, adopted the following factual statement that is in the opinion of the Houston [14th] Court of Appeals. See Gearing v. State, 685 S.W.2d 326 (Tex.App.—Houston [14th] 1983): “Appellant was ‘slouched over’ the steering wheel ...”

However, but as Presiding Judge Onion, the author of the majority opinion on rehearing, now informs us, when confronted by the arresting police officer, appellant was not “ ‘slouched’ over the steering wheel” of the motor vehicle in which he was sitting.

It is my legal belief that there is a world of difference as to what a police officer in the field might do when he sees an individual "slouched over a steering wheel” versus if he sees an individual “slouched down in the driver’s seat [of the motor vehicle in which he is sitting] wearing a cowboy hat.”

I believe that when an officer in the field sees a civilian “ ‘slouched’ over the wheel of an automobile,” at an early morning hour, with the windows of the vehicle rolled up, the lights of the vehicle off, and the motor of the vehicle running, he should investigate to make the determination whether the individual might be suffering from anything ranging from a heart attack to being passed out because he had consumed too much intoxicating liquor or other substances, or is attempting to commit suicide. In that instance, this Court’s decision of Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976), and like decisions, control whether the investigating officer has the right to investigate. Under the above circumstances, I believe he does have the right to make a thorough investigation of the situation.

In this instance, however, other than to ascertain who appellant was and why he was where he was situated, the arresting officer had no other lawful authority to act. There is no evidence in the record on appeal that appellant was either “ ‘slouched over the steering wheel’ ” of the vehicle in which he was sitting or that his “head was bobbing and weaving” when he was sitting in his vehicle.

On original submission, a majority of this Court correctly stated the following: “The facts of this case do not indicate that any activity out of the ordinary was occurring or had occurred, nor that appellant was connected to any such activity, nor any such activity was related to a crime. Indeed, the circumstances observed by the officer were as consistent with innocent activity as with criminal activity, and in fact there was no suggestion of criminal activity afoot whatsoever.” In light of the correct version of the facts, I agree with what a majority of this Court stated on original submission. Under the facts and circumstances of this case, once the arresting officer had obtained identification and reasonable explanation from appellant, as to who he was and why he was where he was situated, without more, the officer did not have the right to order appellant from his vehicle, much less handcuff him. See Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984). Appellant’s conviction should be reversed, if the error was perfected.

But, did appellant waive his error? The record on appeal reflects that when the pistol that was seized by the arresting officer was offered into evidence by the prosecuting attorney, appellant’s counsel stated that he had “no objection” to its admission into evidence. It was after this statement and event that the trial court overruled the appellant’s motion to suppress the evidence. Because of the sequence of events, I do not believe that appellant preserved his ground of error for review. Thus, whatever the majority of this Court states in its opinion on rehearing, regarding appellant’s unlawful detention, as well as the search and seizure that thereafter occurred, is pure dictum.

Notwithstanding that I find that the majority is correct in holding that appellant failed to preserve his error, I must dissent to its holding that appellant’s detention and the ensuing search and seizure were lawful. Such is pure dictum.

      .For reasons deemed sufficient by the judge before whose court this case was tried, hearing argument and ruling on a pretrial motion to suppress fruits of the seizure at issue here were deferred until all testimony and evidence had been adduced. Obviously the trial court did not determine that appellant had waived his motion by voicing "no objection” to admitting a holster, magazine and pistol after their chain of custody had been established. We are informed by the local district attorney that the trial court "specifically overruled the appellant’s motion to suppress because the officer’s actions in checking out the appellant were justified by seeing someone slouched down in a car at 3:00 a.m. with the motor running and lights off (R. IV-24).’’ Thus, to find waiver here is to ambush the trial judge as well as appellant.

      . However, its exposition is somewhat misleading, for the material does not appear in juxtaposition. The paragraph beginning “Second" is one of several "preliminary observations” made in section II of the opinion, 103 S.Ct. at 1324, whereas the next paragraph containing a partial sentence is from section III.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . Indeed, the district attorney submits the detention may be upheld under the "public safety" exception of New York v. Quarles,-U.S.-, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).


author: PER CURIAM.

text:
    Neil Adam SCHWARTZ, Appellant, v. The STATE of Texas, Appellee.
    No. 669-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 20, 1985.
    Wendell A. Odom, Jr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., and Patricia Saum, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

Neil Adam Schwartz, appellant, was convicted in the trial court after he pled guilty to an indictment which charged him with committing the felony offense of possession of a controlled substance, namely, heroin. Pursuant to a plea bargain agreement, punishment was assessed by the trial judge at seven (7) years’ confinement in the Department of Corrections, probated, and a $3,000 fine. On appeal, the Houston [Fourteenth] Court of Appeals reversed, see Schwartz v. State (Tex.App.—Houston [14th] 1983), holding that because appellant’s arrest was based upon an informer’s tip that failed to meet the two-pronged test that was announced in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed. 2d 637 (1969), the trial court erred in overruling appellant’s pretrial motion to suppress the evidence the law enforcement officials seized.

However, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which had not been decided when the court of appeals handed down its opinion in this cause, the Supreme Court of the United States held, for Fourth Amendment purposes, that the “Aguilar two-pronged test” was to be replaced with a “totality of the circumstances” test.

Because Illinois v. Gates, supra, had not been decided when the court of appeals handed down its opinion in this cause, we will remand this cause to the court of appeals in order that it can reconsider the issue in light of Illinois v. Gates, supra.

IT IS SO ORDERED.


author: McCORMICK, Judge. TEAGUE, Judge,

text:
    Richard GOMEZ, Appellant, v. The STATE of Texas, Appellee. Johnny GONZALES, Appellant, v. The STATE of Texas, Appellee. Richard GOMEZ aka Johnny Gonzales aka Beaver, Appellant, v. The STATE of Texas, Appellee.
    Nos. 64705-64707.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 20, 1985.

      Barry J. O’Keefe, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., James C. Brough and Keno Henderson, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

Three interrelated causes are before us, appeals from two revocations of probation and the direct appeal of appellant’s conviction for the revoking offense of aggravated robbery. A jury found appellant guilty of aggravated robbery and the trial court assessed punishment at twenty-five years. After considering the evidence offered by the State in support of the motions for revocation, the trial court revoked appellant’s probations and assessed punishment at three years in Cause No. 64,706 and five years in Cause No. 64,705.

Appellant advances three grounds of error in Cause No. 64,707, the aggravated robbery case. Each ground concerns the allegations in the indictment and the State’s subsequent proof. In ground of error number one, appellant contends that the evidence is insufficient to establish each and every allegation contained within the indictment. The remaining grounds of error concern proof of the use and exhibition of a firearm. Ground of error number two urges that the evidence is insufficient as a matter of law to prove such use and ground of error number three contends fatal variance between the firearm allegation and the proof.

Appellant’s grounds of error in both revocation eases are identical. Appellant advances that the evidence is insufficient to show by a preponderance of the evidence that appellant committed aggravated robbery and likewise insufficient to show aggravated robbery by using and exhibiting a deadly weapon, namely a firearm. We will first consider appellant’s contentions in the aggravated robbery case.

The record reflects that Sampson Chow, the owner of a grocery located at 803 Harbor in Houston, was robbed the afternoon of February 28, 1979. Approximately $1,800.00 and a pistol were taken by three men. Chow identified the appellant as one of the perpetrators. Chow testified that the trio entered the store prior to the robbery and purchased two beers and a Coke. Appellant stayed at the counter with the complainant while the other two men selected the merchandise. Shortly after leaving the store, the three men returned. Appellant again stationed himself at the counter next to Chow while one accomplice manned the door, and the other went to the back of the store, ostensibly to get a six pack of beer. When appellant’s accomplice returned to the front of the store, appellant pointed a gun at the complainant and said, “This is a holdup.” At this juncture, the other two men drew their guns. Chow testified he was in fear of his life or serious bodily injury. Appellant ordered Chow and his four customers to lie on the floor, then he cleaned out one cash register and helped open the other register. Afterward, the trio fled and Chow called the police.

On March 16, 1979, appellant was arrested inside Trahan’s Grocery Store in Houston. Without objection, the arresting officer testified that the police placed a “hold” on appellant because appellant was a suspect in the robbery of Chow. The next day, Chow viewed a lineup and readily identified appellant as one of the men who had robbed him on February 28.

In addition to pleading the necessary elements of aggravated robbery under V.T.C.A., Penal Code, Sections 29.03 and 29.02 (1979), the indictment in the case at bar contains the averment that the deadly weapon was a firearm. Specifically, the indictment alleges that in Harris County, Texas, appellant:

“... on or about February 28, 1979, did then and there unlawfully while in the course of committing theft of property owned by Sampson Chow, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, namely a firearm.”

The State was not required to allege firearm in order to charge appellant with the offense of aggravated robbery. However, where the State alleges unnecessary matter which is descriptive of the essential elements of the crime, the State must prove the descriptive matter as alleged. Moore v. State, 531 S.W.2d 140 (Tex.Cr.App.1976); Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973); Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977). Proof of the use and exhibition of a deadly weapon is an essential element of the offense of aggravated robbery. As a result, the State had to prove beyond a reasonable doubt that the weapon used was a firearm to sustain appellant’s conviction.

In this cause, no weapon was identified as being the same or like the one appellant used or exhibited. Chow referred to the weapon used by the appellant as a “gun” or “revolver.” On direct examination, Chow described the weapon as follows: Testimony regarding the use of a revolver is sufficient to support a finding of use and exhibition of a deadly weapon. Wright v. State, 591 S.W.2d 458 (Tex.Cr.App.1980). In addition, if a weapon is not recovered, corroboration of the complainant’s description of the weapon in the form of expert testimony is not required. Porter v. State, 601 S.W.2d 721 (Tex.Cr.App.1980).

“Q. During the course of this robbery, did you get a look at the gun that the Defendant used, the one that he pulled on you?
“A. I only see half. He covered the other half. It’s a black colored gun.
“Q. Do you know the difference between an automatic pistol and revolver?
“A. Yes.
“Q. Could you tell what kind it was? "A. It was a revolver.”

Appellant presents the novel contention that a revolver is not a firearm as a matter of law and therefore the evidence is insufficient to sustain appellant’s conviction. A revolver is defined in Ballantine’s Law Dictionary as “[a] firearm with short barrel, to be held in firing with one hand; a deadly weapon.” Ballantine’s Law Dictionary (3d Ed.1969). Therefore, we hold that a revolver is a firearm. Since a firearm is a deadly weapon per se under V.T.C.A., Penal Code, Section 1.07(a)(ll)(A), and a revolver is a firearm, the State sustained its burden of proof as to the firearm allegation and no fatal variance is present. Likewise, the evidence is sufficient to establish each and every allegation in the indictment. Grounds of error one, two and three in Cause No. 64,707 are overruled.

Since the evidence is sufficient to support a finding of guilt beyond a reasonable doubt for the offense of aggravated robbery, the same evidence is sufficient to support the finding of a probation violation by a preponderance of the evidence. Grounds of error one and two in Cause Nos. 64,705 and 64,706 are overruled.

The judgments are affirmed.

TEAGUE, Judge,

concurring and dissenting.

I agree with the majority’s holding that appellant’s complaints about the trial court’s orders revoking his two probations are without merit. However, I must dissent to the majority’s holding that the State’s evidence that was presented in appellant’s aggravated robbery trial is sufficient to establish, beyond a reasonable doubt, that appellant “used [or] exhibited a deadly weapon, namely, a firearm,” (my emphasis), in the commission of that offense.

The majority’s sole authority for rejecting appellant’s contention that the evidence is insufficient to establish that the object he used in the commission of the aggravated robbery offense was “a firearm” is a secondary source, Ballantine’s Law Dictionary (3rd Ed.1969). However, notwithstanding what Ballantine’s Law Dictionary might state, our Legislature has seen fit to define the term “firearm.” See V.T. C.A., Penal Code, Sections 1.07(11)(A) and 46.01(3).

Although “a firearm” is per se “a deadly weapon,” see V.T.C.A., Penal Code, Section 1.07(11)(A), an object such as a gun or a revolver, though such may be characterized as “a deadly weapon,” is not necessarily “a firearm.” See V.T.C.A., Penal Code, Section 46.01(3). To hold that it is flies in the face of what the Legislature intended when it adopted several provisions of the New Penal Code. In many instances, when the Legislature enacted the New Penal Code, it saw fit, for punishment purposes, to take the focus of attention away from what the victim thought or believed when he or she was assaulted, and, instead, placed the focus of attention upon the type of weapon or instrument that was used in the commission of certain offenses, such as the offense of aggravated robbery.

In this instance, no weapon was ever recovered, nor did Chow, the complaining witness, ever identify any weapon as being like the one that appellant had used or exhibited when he robbed Chow of his money. Furthermore, there is no testimony or evidence that the “gun” or “revolver,” that Chow said appellant had used, was “a firearm,” as alleged in the indictment, and as statutorily defined. Was this sufficient to establish beyond a reasonable doubt what the State alleged, namely, that appellant used or exhibited “a firearm?” In light of the fact that the term “firearm” has been statutorily defined, and thus has a peculiar meaning, I don’t think so.

Because the word “firearm” is statutorily defined, see V.T.C.A., Penal Code, Section 46.01, also see Section 1.07(11)(A), supra, such word has a much more limited, precise, and specific meaning than does the word “gun,” “revolver,” or the like, which have not been statutorily defined, might have. See O’Briant v. State, 556 S.W.2d 333 (Tex.Cr.App.1977); Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1977). By alleging that appellant used or exhibited “a firearm,” it then became incumbent upon the State to prove that the weapon that appellant brandished was in fact “a firearm.” In light of the absence of any evidence that the object that appellant used or exhibited was “a firearm,” as statutorily defined, the State failed in its proof.

When the Legislature defined the word “firearm,” see supra, it clearly meant that all “guns,” “pistols,” “revolvers,” or the like, were not to be “firearms,” but, of course, could be “deadly weapons.” Otherwise, why was it so meticulous in defining the word “firearm,” which has a very limited, precise, and specific meaning? Compare 18 U.S.C.A. Section 921(a)(3)(16); Mars Equipment Corporation v. United States, 437 F.Supp. 97, 99-100 (D.C.N.D.Ill.1977).

I pause to point out that by the provisions of Y.T.C.A., Penal Code, Section 29.-03, the aggravated robbery statute, the State did not have to allege that appellant committed the offense of aggravated robbery-by using or exhibiting “a firearm.” It would have been sufficient for the State to have alleged in the indictment, and proved, that appellant had committed the offense with a deadly weapon, namely, a gun or a revolver. Nevertheless, when the State chose to shoulder a heavier burden than the law required of it, by alleging that appellant exhibited or used “a firearm,” when he committed the offense, it then became bound to prove what it had alleged. Compare Nelson v. State, 573 S.W.2d 9 (Tex.Cr.App.1978). By alleging more than the law required, the State became bound by its allegation that appellant had used “a firearm,” and was thus bound to prove beyond a reasonable doubt what it had alleged. Weaver v. State, 551 S.W.2d 419, 420 (Tex.Cr.App.1977); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).

The prosecution could also have had Chow identify what purportedly was an exact replica of the weapon that appellant had used, and, if this object satisfied the statutory definitional requirements of “a firearm,” then the State would have satisfied its burden of proof. See Simmons v. State, 622 S.W.2d 111 (Tex.Cr.App.1981).

However, the prosecution did none of the above, and because the word “firearm” is statutorily defined, the provisions of Art. 5429b-2, V.A.C.S., are inapplicable. See and compare Mosley v. State, supra, with Corte v. State, 630 S.W.2d 690 (Tex.App.—Houston [1st] 1982) (Appellant’s P.D.R. Refused.)

For the above reasons, the State did not establish beyond a reasonable doubt that appellant used or exhibited “a firearm.” I pause to point out that this finding would not preclude the State from retrying appellant for committing the offense of robbery of Chow. Rucker v. State, 599 S.W.2d 581 (Tex.Cr.App.1980).

Because the majority erroneously holds that the evidence is sufficient to sustain that part of the verdict of the jury, that appellant used or exhibited “a firearm,” I must respectfully dissent.

      . In Cause No. 64,706, appellant was indicted under the name of Johnny Gonzales for the offense of theft committed on July 6, 1978. Appellant pled guilty and was granted adult probation for a term of three years on October 13, 1978. In Cause No. 64,705, appellant was indicted under the name Richard Gomez aka Beaver Gonzales for the offense of burglary of a habitation with intent to commit theft committed on October 2, 1978. Appellant pled guilty and was granted adult probation for a term of five years on December 1, 1978. Both motions to revoke probation alleged failure to report to his probation officer, failure to work faithfully at suitable employment, and nonpayment of supervision fees in addition to the revoking offense of aggravated robbery.

      . The pertinent portions of Section 29.03, Aggravated Robbery, provide:
      "(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he

      “(2) uses or exhibits a deadly weapon.”

      . Under the applicable portions of Section 29.-02, Robbery:
      "(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:

      "(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”


author: McCORMICK, Judge.

text:
    Ex parte Larry Eugene THOMPSON.
    No. 69152.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.
    Will Gray, Houston (court appointed), for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

This is an original writ of habeas corpus filed in this Court after the district judge of the 209th District Court of Harris County refused to issue the writ. The applicant alleges that he is being illegally restrained of his liberty by the Sheriff of Harris County under an indictment charging him with the offenses of robbery and theft. Applicant alleges that the trial of this cause would subject him to punishment prohibited by the Double Jeopardy Clause because he was previously indicted and tried for both of these offenses.

According to his application, applicant was tried before a jury for both these offenses. After presentation of the evidence during the guilt-innocence phase of the trial, applicant alleges that both offenses were submitted to the jury with instructions that he could be found guilty of only one of the offenses. The jury found applicant guilty of robbery and after the punishment phase of the trial he was sentenced to twenty-five years’ imprisonment and fined $2,000.00. According to applicant, his robbery conviction was reversed by the Fourteenth Court of Appeals because of insufficient evidence.

Applicant argues that based on Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982), he is entitled to raise and appeal his Double Jeopardy claim before the trial of the indictment which is currently pending against him. We do not address the procedural holding this Court made in Robinson. However, under the current posture of this case, Robinson is not applicable.

The record before us contains only applicant’s original application for writ of habe-as corpus which was filed in this Court, an order from this Court ordering the judge of the 209th District Court of Harris County to file a response to applicant’s application, an order granting leave to file the application in this Court, a motion to dismiss the writ of habeas corpus filed by the judge of the 209th District Court, and a motion and an order granting bail pending final disposition of this cause. The response filed by the Judge of the 209th District Court shows that the indictment under which applicant was being held has been dismissed. Therefore, applicant’s contention is moot, and the application is dismissed.

It is so ordered.

      . The citation to the Court of Appeals’ opinion is Thompson v. State, 650 S.W.2d 156 (Tex.App.—Houston [14th] 1983). On appeal applicant did not challenge the sufficiency of the evidence to show that he took corporeal personal property from the complainant without his consent, but only challenged the sufficiency of the evidence concerning whether he intentionally or knowingly caused bodily injury to the complainant in the course of committing theft. The Court of Appeals found the evidence insufficient on this point only and found that applicant should be acquitted only on the indictment for robbery. They specifically held that the State would not be precluded from proceeding to trial on the lesser included offense of theft.

        . It appears that the applicant has been reindict-ed for the theft offense, but does not here complain of any restraint resulting therefrom. See note 1, supra.


author: JUNELL, Justice.

text:
    Floyd Ray GEARING, Appellant, v. The STATE of Texas, Appellee.
    No. A14-81-796-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 18, 1983.

      Neal Y. Pickett, Houston, for appellant.
    J. Sidney Crowley, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   JUNELL, Justice.

Floyd Ray Gearing appeals his conviction for possession of a firearm by a felon. After appellant waived trial by jury, the court found him guilty of the offense and assessed punishment, enhanced by two previous convictions, at life imprisonment.

On July 21, 1981, at approximately 3:15 a.m., Officer S.A. Vaughn of the Pasadena Police Department observed appellant sitting alone in an automobile in the parking lot of the Sandstone II apartments in Pasadena. Appellant was “slouched over” the steering wheel with the motor running; the car lights were off. Vaughn approached and asked Gearing to step out of the car. As appellant opened the door, Vaughn spotted a pistol on the floorboard on the driver’s side of the car.

By third ground of error, appellant contends that the detention which led to the discovery of the weapon was unlawful.

A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Shaffer v. State, 562 S.W.2d 853 (Tex.Crim.App.1978). In order to justify the stop, the law enforcement officer must have specific articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion. Id. at 855.

Based upon the totality of the circumstances, we find that the officer had sufficient reason to make an investigative stop. Vaughn testified about several recent arrests made in the Sandstone complex parking lot for burglary, theft, and drug possession and trafficking. At such an early hour of the morning, and under the circumstances detailed above, Vaughn acted reasonably in attempting to secure more information from appellant. The circumstances would justify the officer’s suspicion that some activity out of the ordinary was occurring or had occurred. Thus, the gun was subject to seizure when Vaughn spotted it in plain view while making a lawful investigative stop. Ebarb v. State, 598 S.W.2d 842 (Tex.Crim.App.1979). Ground of error three is overruled.

In his first ground of error, appellant contends the court erred in denying his motion for continuance. The transcript before us contains no case reset forms; however, there are several pre-trial motions which were filed in the trial court by appellant’s counsel on August 18, 1981. Appellant maintains that the case was set on September 30 for trial on October 5, 1981, on a form signed by the court coordinator. Appellant steadfastly urges he had no notice of the trial setting until September 30 and was not prepared to proceed when the case was called to trial on October 5, 1981.

On the basis of the record before us, we cannot hold that the court abused its discretion in denying appellant’s motion for continuance. Appellant alleges in his brief and in oral argument his attorney did not receive notice of the trial setting until September 30; however, this allegation is not supported by a reference to testimony offered in a bill of exceptions or motion for new trial. Additionally, appellant states that his attorney was preparing to proceed on other charges pending against appellant for unauthorized use of a motor vehicle, Cause No. 338,128, rather than this case, Cause No. 340, 303. However, the record contains many pre-trial motions bearing a type-written notation “338,128” which has been marked out and the docket number “340,303” handwritten in its place. Among these motions is a motion to suppress the pistol which was recovered from appellant’s vehicle at the time of his arrest. Apparently, appellant takes the position that he was not able to adequately research and present to the court statistics which would reflect the “general attitude” of the Pasadena Police Department and the high number of arrests made by the police at the apartment complex which did not result in the filing of criminal charges. Appellant urges that the admission of this testimony would have caused the court to exclude the pistol from evidence under his motion to suppress. Absent a showing of prejudice, we cannot agree that the court abused its discretion in overruling appellant’s motion for continuance. See Sanne v. State, 609 S.W.2d 762 (Tex.Crim.App.1980).

In a related ground of error, appellant complains of the court’s failure to consider testimony concerning “prior arrests [and] illegal searches” which were made by the Pasadena Police Department at the Sandstone II apartment complex. Appellant cites no authorities in support of his position nor does he cite this court to the portion of the record where the alleged error occurred. Nothing is presented for review. Woods v. State, 569 S.W.2d 901 (Tex.Crim.App.1978), cert denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981). Grounds of error one and two are overruled.

Appellant also contends that the court’s order that the entire indictment be read denied him the right to trial by jury. Appellant has failed to point out when this ruling occurred or how it affected his right to trial by jury. Ground of error four is overruled.

In grounds of error eight and nine, appellant complains of constitutional infirmities of various provisions of the penal code. Specifically, he contends TEX. PENAL CODE ANN. § 46.05 (Vernon 1974) is void for vagueness in that it fails to apprise appellant of the circumstances under which he could own a firearm. These contentions have been answered adversely to appellant by the court of criminal appeals in Shepperd v. State, 586 S.W.2d 500 (Tex.Crim.App.1979) and Runo v. State, 556 S.W.2d 808 (Tex.Crim.App.1977). Additionally, he urges that the habitual offender statute, TEX.PENAL CODE ANN. § 12.42(d) (Vernon 1974), deprives him of the right to trial by jury. We find no merit in this argument. A defendant is afforded the right to have the jury determine the truth of the allegations brought by the state to enhance punishment. TEX.CODE CRIM.PROC.ANN. arts. 37.07 (Vernon 1981) & 27.02 (Vernon Supp.1982-1983). Grounds of error eight and nine are overruled.

In ground of error five, appellant states that he was twice placed in jeopardy by the testimony of two witnesses for the state.

The state called an expert witness who identified appellant’s fingerprints and testified that they were identical to those on the certified copies of the penitentiary packets which contained records of appellant’s previous convictions. Herbert Laufman testified that he was the owner of Laufman’s grocery when the store was burglarized by forceful entry on July 19, 1976. Apparently, appellant’s complaint is that this testimony had already been used against him in the previous trial.

In a trial for possession of a firearm by a felon, the state must prove that the defendant was previously convicted of a felony involving violence, or threatened violence, to a person or property. Waffer v. State, 460 S.W.2d 147 (Tex.Crim.App.1970). The constitutional doctrine of double jeopardy rests upon the premise that no person should twice be placed in jeopardy for the same offense. Section 46.-05 prohibits one who has been convicted of a felony involving violence from carrying a weapon. The statute does not entail additional prosecution or punishment for the same offense. The prior conviction is an element to be proved by the state and constitutes a part of an entirely new offense. Thus the previous conviction is not an “offense” within the meaning of the double jeopardy clause. Ground of error five is overruled.

Appellant alleges in ground of error six that the evidence is insufficient to support a finding that he was twice previously convicted of felonies involving violence.

The state introduced penitentiary packets, properly authenticated, with judgments and sentences and fingerprints of Floyd Ray Gearing from 1962 and 1967 convictions of burglary. The documents contain proper certification from the record clerk of the Texas Department of Corrections. There was testimony which established that appellant’s fingerprints matched those contained in the pen packets. The evidence is sufficient to show that appellant had two previous felony convictions. Prior felony convictions used for enhancement purposes need not involve an act of violence. TEX.PENAL CODE ANN. § 12.-42(d) (Vernon 1974). The contention is overruled.

In ground of error seven, appellant urges the court erred in using a previous conviction as an element of the instant offense as well as for enhancement purposes under the habitual offender statute.

The record reflects that the conviction in cause number 127697 was alleged and proved as an element of the offense of possession of a firearm by a felon and as part of the enhancement. A prior conviction is not available to enhance punishment for an offense of which it is an essential element. Ramirez v. State, 527 S.W.2d 542 (Tex.Crim.App.1975). Ground of error seven is sustained. The offense of possession of a firearm by a felon is a felony of the third degree. However, since the conviction was properly enhanced by one previous conviction, the conviction for the instant offense calls for punishment as a second degree felony: confinement for any term of not more than twenty years nor less than two years in addition to a fine of up to $10,000.00. TEX.PENAL CODE ANN. § 12.83 (Vernon 1974). Since the punishment was assessed by the court, the punishment previously assessed is set aside, and the cause is remanded for reassessment of punishment within the range prescribed for second degree felonies. See Cooper v. State, 631 S.W.2d 508, 513 (Tex.Crim.App.1982).