source: Caselaw Access Project

author: O’BRIEN, Judge.

license: Public Domain

text:
    STATE of Tennessee, Appellee, v. Edward Bernard RICHBOURG, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    July 17, 1984.
    Permission to Appeal Denied by Supreme Court Oct. 1, 1984.

      William M. Leech, Jr., Atty. Gen. & Reporter, Jerry L. Smith, Asst. Atty. Gen., John Zimmerman, Asst. Dist. Atty. Gen., Nashville, for appellee.
    Carlton H. Petway, Nashville, for appellant.
   OPINION

O’BRIEN, Judge.

Defendant was indicted by the Davidson County Grand Jury and convicted of accepting a bribe in violation of T.C.A. Sec. 39-5-104. He was sentenced to serve not less than four (4) years nor more than six (6) years in the penitentiary.

He raises three issues for error, asserting (1) that the trial court erred by failing to properly instruct the jury they could fix the maximum sentence at the same number of years fixed by law as the minimum sentence; (2) he was not properly convicted under the provisions of T.C.A. Sec. 39-5-104; (3) and that the trial court erred in denying him a suspended sentence.

On the first issue, in the case of the State v. Walter Thomas Kelly, 603 S.W.2d 726, (Tenn.1980), the Supreme Court concurred in the action of this Court in reversing the conviction because of the error of the trial court in failing to adequately instruct the jury that in reaching its verdict it could fix the maximum punishment at the minimum prescribed by statute. In Kelly the case was remanded for a new trial. We do not think a new trial is required in this case. Although the trial judge’s failure to follow T.P.I.-Crim. 38.01 in instructing the jury resulted in error we note the jury sentenced Richbourg to a minimum sentence of four (4) years. This is two (2) years greater than the least sentence provided by law for the conviction offense. We think the error in jury instructions should be corrected by reducing the maximum sentence to the same number of years set by the jury as the minimum sentence. We modify defendant’s sentence to be not less than four (4) years nor more than four (4) years in the penitentiary, subject to the State’s objection. If the State objects to this modification the case is remanded for a new trial.

The defendant questions whether he was subject to the provisions of T.C.A. Sec. 39-5-104 because in his capacity as a hearing officer with the Pardons and Parole Board he did not have the authority to effect the release of an inmate from custody. In Wells v. State, 129 S.W.2d 203, 204, 174 Tenn. 552 (1939), a case where the defendant was charged with offering a bribe, the court made it clear that the gravamen of the offense under Code Section 11084, now T.C.A. Sec. 39-5-104, was the corrupt acceptance of a bribe for performing some act, in his official capacity, other than required by law of the acceptor, or for failing to perform a required duty. The power to accomplish the act for which the bribe was accepted is not encompassed in the statute. The issue is without merit.

Defendant’s final complaint relates to denial of a suspended sentence. He complains of failure of the trial court to set out any basis for his denial of probation in accordance with the requirements of T.C.A. Sec. 40-21-104. It would save a great deal of trouble both for the trial court and at the appellate level if trial judges would heed the statute and recite the reasons for granting or denying probation. See State v. Vance, 626 S.W.2d 287 (Tenn.Cr.App.1981). It is apparent from a study of this record that the trial judge considered the background of the defendant, including a prior drug conviction, in making his decision. It is also plain that defendant was less than candid with the court in making his application for probation. The judge commented that the circumstances of the offense for which defendant was convicted represented a violation of a public trust which should be taken more seriously than other matters. The burden of proof is on an accused to specifically show entitlement to a probated sentence. The judgment denying a petition for probation is presumed to be correct and is not reviewable on appeal except for an arbitrary and capricious abuse of discretion. T.C.A. Sec. 40-21-104(a)(l). For an appellate court to find an abuse of discretion, the record must contain no substantial evidence to support the judge’s conclusion. State v. Grear, 568 S.W.2d 285 (Tenn.1978), cert. denied 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979). The judge considers whether granting probation will benefit the defendant and the public, and he may deny relief on the grounds of the deterrent effect upon other criminal activity. T.C.A. Sec. 40-21-104(a)(l). Denial may be based on one appropriate factor. Powers v. State, 577 S.W.2d 684 (Tenn.Cr.App.1978). The circumstances mentioned by the trial judge coupled with defendant’s past criminal record warrants the denial of probation.

We affirm the judgment of the trial court as modified.

DUNCAN and DAUGHTREY, JJ., concur.


text:
    STATE of Tennessee, Appellee, v. Paul Wayne GOURLEY and Donald Edward Thompson, Appellants.
    Court of Criminal Appeals of Tennessee, at Nashville.
    July 19, 1984.

      William M. Leech, Jr., Atty. Gen. & Reporter, David M. Himmelreich, Asst. Atty. Gen., Nashville, Joseph D. Baugh, Jr., Dist. Atty. Gen., Franklin, for appellee.
    James V. Mondelli, Nashville, for Gour-ley.
    John H. Henderson, Jr., Franklin, for Thompson.
   OPINION

O’BRIEN, Judge.

This case comes from the Criminal Court for Williamson County. Defendants entered guilty pleas to the offense of burglary of a motor vehicle. Their sentences were fixed at three (3) years in the penitentiary as Range I, standard offenders. They explicitly reserved, with the consent of the State and the court, the right to appeal a certified question of law disposi-tive of the case. Tenn.R.Crim.P. 37(b)(2)(i).

On July 30, 1982 defendants were arrested in the vicinity of Fairview, Tennessee. Thompson was driving a yellow, 1974 Ford, Maverick automobile titled to his sister, Celia D. Thompson. Gourley and another man, Calvin Horace King, were occupants. The license on the vehicle had been issued for a 1966 Ford 2-door automobile also registered to Thompson’s sister. Thompson was charged with a registration violation and for carrying a weapon for the purpose of going armed. Gourley and King were arrested for public drunkenness. The vehicle was impounded and an inventory search was made. Thompson and Gour-ley apparently made bond and were released. The fate of King is not disclosed by the record, and he is not involved in these proceedings. In the course of taking the inventory the arresting officer observed a set of welding hoses, gauges, a torch, and a hand-operated diesel pump, all in the trunk of the automobile. Two days after the arrest an unidentified female telephoned the police department and stated that the welding gauges and hand pump were stolen from Rogers and Saltsman Construction Company. The theft was verified by the police. They found that the listed items had been taken from a vehicle located inside the fenced and locked yard of the company. On August 2, 1982 Officer George D. Fields, and Officer Morgan of the Fairview Police Department went with arrest warrants to Gourley’s house which was located behind the establishment where the larceny had occurred. In a wooded area between Gourley’s house and the construction company property they found a muffler which had broken off the exhaust pipe of a vehicle. They took Gour-ley, Thompson, and the muffler they had discovered to the impoundment lot. Officer Morgan asked who owned the Maverick automobile and Gourley responded that he did. The broken end of the muffler matched the broken end of the exhaust pipe on the car. The stolen articles were found in the vehicle trunk.

The judgment order specifically sets out that the question of law certified for appeal was, “Did the Trial Court, following full evidentiary hearing, err in denying the written pre-trial motion of the defendant, Donald Edward Thompson, to suppress any and all evidence obtained or derived as a result of a search and seizure conducted by agents and representatives of the City of Fairview, Tennessee, on or about July 29, 1982, in the City of Fairview, Tennessee, in and about a certain automobile, in which the said defendant had a legal interest?” At the hearing on the motion to suppress the trial judge noted that the original arrest of the defendants occurred on the day after July 29th, and that the first search occurred on that day. He found the second search to be a valid search made by consent.

There is not one shred of competent evidence in this record in regard to the first search of Thompson’s automobile. The conviction evidence was discovered in the course of the so-called “inventory search” of the vehicle. Although the burden was upon the State to justify the im-poundment by demonstrating compliance with the rule of reasonable necessity set out in Drinkard v. State, 584 S.W.2d 650, 654 (Tenn.1979), at the suppression hearing the Assistant District Attorney did not even call the officer who had made the original arrest, impounded the vehicle, and made the inventory search. See State v. Lunsford, 655 S.W.2d 921, 924 (Tenn.1983). The motion to suppress evidence in this case dealt only with the first search. The judgment of the trial court relative to the certified question of law to be appealed likewise dealt only with the earlier search. From the record which has been furnished to us, this Court is simply unable to make an informed judgment on the legality of the impoundment of Thompson’s vehicle and the subsequent inventory search. See State v. Lunsford, supra. The case must be remanded for further evidence on the suppression hearing. The admissibility of the evidence discovered by the police in the inventory search depends upon the legality of the impoundment. The trial court will conduct a hearing on that issue. If the impoundment did not comply with the requirements of State v. Lunsford, supra, the evidence cannot be admitted, unless the prosecution can establish by a preponderance of the evidence that the challenged evidence would have been ultimately or inevitably discovered by lawful means, or its discovery came through a source independent of the search. See Nix v. Williams, — U.S. -, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); State v. Nance, 521 S.W.2d 814, 816 (Tenn.1975).

The case is remanded for further proceedings as herein directed.

DUNCAN and SCOTT, JJ„ concur.


text:
    STATE of Tennessee, Appellee, v. Donald Richard SILVA, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    July 24, 1984.

      William M. Leech, Jr., Atty. Gen. & Reporter, Jerry L. Smith, Asst. Atty. Gen., Nashville, Dee Jay, Asst. Dist. Atty. Gen., Springfield, for appellee.'
    Michael R. Jones, Walton & Jones, P.C., Springfield, for appellant.
   OPINION

O’BRIEN, Judge.

The case comes from the Criminal Court of Robertson County where defendant had been incarcerated in the County Jail as a contract prisoner from the State. On October 3, 1981 he escaped from custody. A short time thereafter he was arrested in North Carolina on separate charges. He served a sentence in that jurisdiction which was completed by January 12, 1982. From January 12,1982 until July 29, 1982 he was confined in North Carolina while resisting extradition to Tennessee to answer the escape charge. On March 8, 1983 he entered a plea of guilty to the charge of jail escape and received a sentence of one (1) year to run consecutively to sentences which he was serving at the time. He filed a petition for jail time credit from January 12, 1982 to July 29, 1982.

This Court has twice held in unreported cases that a defendant, under the circumstances existing in this case, was not entitled to jail time credit. We said:

“.... [T]he appellant, who escaped and was captured in a foreign State and who by his own act resisted extradition, should not be given credit for the time he served pending resolution of his extradition proceedings. The thrust of T.C.A. Sec. 40-3102 (Supplement 1981), was to assure that persons unable to make bond would be given credit for the time they spent in jail prior to and after appealing their conviction.”

We are of the opinion that the amendments to T.C.A. Sec. 40-3102, now encoded as T.C.A. Sec. 40-23-101, making it mandatory to allow a defendant credit on his sentence for any period of time he was held in the County Jail or Workhouse, pending his arraignment and trial, does not change the rule pronounced in State ex rel Crist v. Bomar, 365 S.W.2d 295, 211 Tenn. 420 (1963). In that case the court said:

“.... [TJhis brings us to the correct conclusion that it is really up to the prisoner who has been convicted to bring himself within the confines of the law to get the credit for the sentence that he concedes has been rightly fixed against him, and that the prisoner cannot by his acts have this sentence to begin running before he presents himself to the officers for incarceration under the sentence. Here the petitioner by his own acts tried to prevent his return to Tennessee to begin this sentence under this judgment which is eoncededly valid and fought extradition to Tennessee and it was this period of time which he now claims should be credited on this sentence. Clearly petitioner’s arguments and reasons are not in conformity with established jurisprudence.”

The judgment of the trial court is affirmed.

DUNCAN and SCOTT, JJ., concur.


author: DWYER, Judge.

text:
    STATE of Tennessee, Appellee, v. William Lee SWANSON, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Sept. 12, 1984.
    Permission to Appeal Denied by Supreme Court Nov. 13, 1984.

      Thomas M. Fleming, Chattanooga, for appellant.
    William M. Leech, Jr., Atty. Gen. & Reporter, Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Thomas J. Evans, Peter J. Strianse, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

DWYER, Judge.

On January 16, 1981, appellant was convicted by a jury of the offense of second degree murder and received a sentence of life imprisonment. Appellant appeals the trial court’s judgment rendered on January 6, 1984, which denied appellant’s petition for post-conviction relief after appointment of-counsel and an evidentiary hearing.

Appellant sets forth four issues for our review: (1) whether the trial court erred in failing to enter a written findings of fact and conclusions of law in the court’s dismissal of appellant’s petition for post-conviction relief and what result should follow such error; (2) whether the trial court erred by not making a specific finding of fact as to whether a juror slept during portions of the trial proceedings; (3) whether the trial court erred in finding appellant received effective assistance of counsel; and (4) whether the trial court erred in its denial of appellant’s motion for a delayed appeal.

In his first issue, appellant contends that the trial court’s non-compliance with the mandates of T.C.A. § 40-30-118(b) warrants a reversal of the trial court’s dismissal of appellant’s post-conviction petition. Appellant correctly asserts that a trial judge is required to set forth a final written order in which all grounds presented are set forth along with findings of fact and conclusions of law with regard to each of the grounds. T.C.A. § 40-30-118(b). Although this requirement has been determined to be mandatory, Brown v. State, 1 Tenn.Cr.App. 462, 445 S.W.2d 669 (1969), the failure of the trial judge to abide by the requirement does not always mandate a reversal of the trial court’s judgment. See George v. State, 533 S.W.2d 322 (Tenn.Cr.App.1975); Webb v. State, 4 Tenn.Cr.App. 723, 475 S.W.2d 228 (1971); Brown v. State, supra. The primary intent of the legislature underlying this requirement is to facilitate appellate review of the lower court’s proceedings, and the failure to meet the requirement neither constitutes constitutional abridgement nor renders the conviction or sentence of the appellant void or voidable. George v. State, supra. Since the record contains the reasons of the trial judge for dismissing appellant’s petition and the transcripts of both the evidentiary hearing held on appellant’s post-conviction petition and the original trial, we conclude that the record is sufficient to effectuate meaningful appellate review. Accordingly, this issue is overruled.

In the second issue, appellant contends that the trial court erred by its refusal to make a finding of fact as to whether a juror in appellant’s original trial slept through portions of the testimony and cross-examination during trial. The State asserts that the trial court properly declined to make a finding of fact as to this issue because this issue is not determinative. The State describes the true issue as whether or not counsel was ineffective in failing to bring the matter to the trial court’s attention. We conclude that the trial judge could have determined the ultimate issue of whether or not trial counsel was ineffective without determining whether or not a juror, in fact, was asleep at trial.

Assuming that a juror was asleep, the issue of fact remains as to whether trial counsel had knowledge of this fact. Although the record reflects testimony by appellant that appellant brought this matter to his counsel’s attention, counsel testified that he was unaware of such fact and had he been aware of the matter, he would have brought it to the trial court’s attention “without any hesitation whatever." Thus, the trial judge was confronted with a question of fact as to whose testimony was to be believed. The trial judge obviously resolved this issue in favor of the State. In such circumstances the factual findings of the trial court are conclusive unless the evidence preponderates against such findings. Long v. State, 510 S.W.2d 83 (Tenn. Cr.App.1974). Accordingly, the failure of the trial court to determine whether or not a juror actually slept during the trial proceedings is not error, and this issue is overruled.

We note that within his argument pertaining to this second issue, appellant also asserts that the trial judge’s failure to meet the requirements of T.C.A. § 40-30-118(b) mandates a reversal of the trial court’s judgment. We disagree for the reasons set forth in the portion of this opinion dealing with appellant’s first issue.

In the third issue, appellant contends that the lower court erred in failing to find that he was denied effective assistance of counsel. In support of this contention, appellant alleges that counsel failed to (1) adequately consult with him prior to trial; (2) call certain witnesses; (3) consistently and thoroughly pursue a meaningful theory of defense; (4) raise timely objections at trial; and (5) properly preserve and pursue certain issues for appellate review.

We note at the outset that the test for determining whether a criminal defendant received effective assistance of counsel is “whether the advice given, or the services rendered by the attorney, are within the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975). Counsel is obliged to confer with his client, advise him of his rights, protect his rights, investigate the facts, and develop all substantial defenses. United States v. Decoster, 487 F.2d 1197 (D.C.Cir.1973). How ever, the appellate court is not to second-guess the trial counsel’s strategic and tactical choices pertaining to the defense. Id. at 1201.

In a post-conviction proceeding the petitioner has the burden to prove his allegations by a preponderance of the evidence. Long v. State, supra. Moreover, factual findings of the trial court are conclusive unless the evidence preponderates against such findings. Id. at 86. Therefore, we must examine the evidence to determine whether it adequately supports the trial court’s judgment.

Although appellant testified that counsel did not adequately consult with him prior to trial, counsel testified that he consulted with appellant on at least eight occasions on which the defense strategy was discussed. Appellant also asserts that counsel should have called certain witnesses, whose testimony would have been favorable to the defense. However, counsel testified that after speaking to all of these potential witnesses, he concluded that their testimony would not be favorable but, in fact, very harmful to the defense.

Appellant contends that counsel should have cross-examined one State’s witness concerning appellant’s alleged affair with the witness’s wife. Counsel testified that his reason for not doing so was a matter of strategy. Counsel felt that the defense strategy of portraying appellant as being very much in love with the victim would have been inconsistent with the facts concerning the alleged affair. Counsel further testified that had appellant requested this cross-examination, counsel would have explained to appellant his reasons for not doing so.

Although appellant contends that counsel did not pursue a meaningful defense, he has not asserted any other defense that could have been asserted at trial. Furthermore, counsel testified that his defense strategy in asserting a reasonable doubt entailed the emphasis of the possibility that another had committed the crime.

Appellant complains that counsel failed to raise timely objections and preserve same for appellate review. Under this general allegation, appellant refers to four specific allegations.

First, appellant complains of counsel’s failure to bring to the trial court’s attention the alleged fact that a juror was sleeping during the trial. However, counsel testified that he was unaware of a sleeping juror, but had he known of this alleged fact, he would have immediately reported it to the trial court.

Second, appellant contends that counsel improperly failed to timely object and to preserve an objection to the admission of the testimony of two State’s witnesses. However, appellant put forth no proof that he was unaware of their existence or that the prosecution wrongfully withheld these witnesses’ names.

Furthermore, these witnesses’ testimony could be construed as not being prejudicial to appellant. The thrust of the testimony of Mr. Bridges, the victim’s supervisor at the Brock Candy Company, merely concerned the time that the victim left work on the night of the murder. And, as the State points out, contrary to appellant’s assertion, Cheri Ruth did not corroborate her husband’s (Eddie Ruth’s) testimony that he loaned appellant the murder weapon approximately one day before the murder. She testified that she could not remember seeing her husband give his gun to appellant and that she did not pay attention to the discussion between appellant and her husband.

Third, appellant complains of counsel’s failure to preserve for appellate review his objection to the State’s failure to supply him with the negative results of fingerprint tests.

Prosecutive suppression of evidence favorable to an accused or failure to volunteer exculpatory material to the defense violates due process where the evidence is material to guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We agree with the State that under the context of the entire record this evidence is not “material” in the constitutional sense. Appellant admitted to having been inside the victim’s truck prior to the occurrence of the offense. The fact of the absence of appellant’s fingerprints on the truck does not create a reasonable doubt about appellant’s guilt. Where there is no reasonable doubt about guilt whether or not the additional evidence is considered, a new trial is not justified. United States v. Agurs, supra. Accordingly, counsel was not ineffective for failing to preserve his objection to the State’s failure to disclose the fingerprint test.

Fourth, appellant contends that counsel was ineffective for failure to raise an issue as to the sufficiency of the evidence to support the conviction in a motion for new trial or on appeal. Although the issue of insufficiency of evidence presented at trial is not reviewable by post-conviction proceedings, Gant v. State, 507 S.W.2d 133 (Tenn.Cr.App.1973), we must determine whether the evidence supports the trial court’s judgment that counsel was not ineffective by his failure to preserve this issue for appeal.

The record reflects that the trial court recognized different strategies concerning appellate advocacy. The trial court was of the opinion that the so-called “shotgun approach,” by which the attorney sets forth all arguable issues, may not be as effective as setting forth a small number of meritorious issues designed to focus in on issues which are thought by counsel to most likely influence the appellate court. We conclude that failure to preserve and/or assert all arguable issues on appeal is not per se ineffective assistance of counsel, since the failure to do so may be a part of the counsel’s strategy of defense. Counsel is not constitutionally required to argue every issue on appeal, or to present issues chosen by his client. Shears v. State, Shelby County No. 82 (Tenn.Cr.App., Jackson, Feb. 1984). The determination of which issues to present on appeal is a matter of counsel’s discretion. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

In addition, the State correctly asserts that the appellate court implicitly determined that the evidence is sufficient to support appellant’s conviction. Appellate courts may consider plain error whether or not it is properly preserved. State v. Mackey, 553 S.W.2d 337 (Tenn.1977). Under the circumstances of this ease, counsel was not ineffective for failing to preserve the issue concerning the sufficiency of the evidence at trial.

We conclude that the evidence sufficiently supports the trial court’s judgment that counsel was not ineffective since the evidence does not preponderate against the trial court’s judgment. See Clenny v. State, 576 S.W.2d 12 (Tenn.Cr.App.1978); Long v. State, supra. Therefore, appellant’s third issue is overruled.

In his fourth and final issue, appellant contends that the trial court erred by holding appellant could not be granted a delayed appeal under T.C.A. § 40-30-120. Under this statute, the trial judge can grant a delayed appeal if the judge finds that the petitioner was unconstitutionally denied his right to an appeal from his original conviction. T.C.A. § 40-30-120(a)(l). Here, as noted by the trial court, appellant pursued an appeal from his original conviction. We have previously determined that the evidence supports the trial court’s judgment that counsel was effective; therefore, appellant was not unconstitutionally denied his right to appeal his original conviction. This issue is without merit.

All issues having been overruled, the judgment is affirmed.

DUNCAN and CORNELIUS, JJ., concur.


author: COUNTISS, Justice.

text:
    Sanford James McCullough, Appellant, v. The STATE of Texas, Appellee.
    No. 07-81-0141-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 3, 1983.
    Rehearing Denied March 18, 1983.

      Mann & McConnell, John Mann, P.C., Amarillo, for appellant.
    Randall Sherrod, Dist. Atty., Dean C. Watson, Asst. Dist. Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   COUNTISS, Justice.

Appellant was convicted of murder, § 19.02, Tex.Penal Code Ann. (Vernon 1974), and sentenced to 50 years in the penitentiary. He contends the trial court erred when it (1) refused to grant his motion for change of venue, (2) admitted bloody photographs of his victim, and (3) imposed a greater sentence on retrial than was imposed by the jury when appellant was first tried for the crime. We reform and affirm.

In September, 1980, appellant was convicted of murder and assessed 20 years in the penitentiary by a jury. Subsequently, appellant’s motion for new trial was granted and he was tried again in December, 1980. At the second trial, the question of guilt was again tried before a jury, but appellant permitted the trial judge to assess punishment. The judge, who' had also presided at the first trial, assessed 50 years in the penitentiary.

In the interim between the first and second trial, appellant moved for a change of venue under art. 31.03, Tex.Code Crim.Pro. Ann. (Vernon Supp.1981), with supporting affidavits, alleging that there was so great a prejudice against him in the county that he could not obtain a fair trial. The State controverted the motion and the trial court heard evidence from various witnesses. The State presented evidence that appellant could receive a fair trial in the county and appellant presented evidence that he could not. Appellant also introduced evidence of news media coverage of the crime and his first trial and conviction. The trial court’s denial of his motion is the basis for his first ground of error.

Where, as here, the propriety of a change of venue is contested, the trial court’s resolution of the dispute on its merits after a hearing will be reversed only if the court abused its discretion. McManus v. State, 591 S.W.2d 505, 516 (Tex.Cr.App. 1980). When conflicting evidence on the issue is presented, the court seldom abuses its discretion by denying the motion, Chappell v. State, 519 S.W.2d 453, 457 (Tex.Cr. App.1975), even if the case has been publicized by the news media. Morris v. State, 488 S.W.2d 768, 771 (Tex.Cr.App.1973).

In this case, we find no error in the denial of the motion. Credible conflicting evidence was presented and the trial court resolved the conflict against appellant. By doing so, it did not abuse its discretion. Ground of error one is overruled.

By his second ground, appellant contends the trial court erred in admitting seven photographs. The color photographs depict the victim’s cuts and wounds and the murder scene, the victim’s bedroom, in vivid and gruesome detail.

Appellant advances two arguments against the admissibility of the photographs. First, he says, they were not material because the defense stipulated that the victim was stabbed to death. Second, assuming some of the photographs were admissible, appellant argues that others were cumulative, and introduced only to inflame and prejudice the jury.

In Martin v. State, 475 S.W.2d 265, 267 (Tex.Cr.App.1972), the general rule for admission of photographs in a criminal case is stated:

We hold that if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible. (Footnotes omitted.)

Accord: Terry v. State, 491 S.W.2d 161, 163 (Tex.Cr.App.1973).

The trial court did not abuse its discretion by admitting the photographs. First, the appellant cannot, by stipulating the cause of death, deprive the State of the duty and function of presenting all relevant evidence to the jury, “nor avoid facing the full facts of the crime.” Harrison v. State, 501 S.W.2d 668, 669 (Tex.Cr.App.1973).

Likewise, we do not agree that some of the photographs were merely cumulative and used solely to inflame and prejudice the jury. The photographs are extremely unpleasant to observe, but that does not make them inadmissible. Martin v. State, supra. The first four depict the victim or the scene from different angles and perspectives and aid the fact finder in understanding what occurred at the scene. The last three show the victim after the blood had been cleaned off the body, and aid the fact finder in understanding the medical testimony. Thus, each photograph is material, competent and relevant, depicts matters verbally describable, and clarifies or aids in the understanding of other evidence. Ground of error two is overruled.

By his third ground, appellant attacks the punishment assessed on retrial. After the jury assessed twenty years imprisonment in his first trial, appellant moved for a new trial and the State, apparently unhappy because only twenty years was assessed, agreed with the appellant that a new trial should be granted. The trial court then granted the motion. Upon retrial, appellant permitted the trial judge to assess punishment and she assessed 50 years imprisonment. In this court, appellant says the increased punishment violates the constitutional principles stated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We agree.

In Pearce, the Supreme Court found no constitutional impediment per se to the imposition of greater punishment on retrial of a defendant. It was concerned, however, with the possibility that greater punishment on retrial would be assessed solely to penalize a defendant who had successfully sought a new trial. To prevent that occurrence, the Court established a new rule for state courts, in the following language:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
395 U.S. at 725, 89 S.Ct. at 2080. (Last emphasis added.)

Later, in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Supreme Court limited Pearce to cases where the judge determines punishment, by holding that a jury can impose greater .punishment upon retrial “so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness.” 412 U.S. at 35, 93 S.Ct. at 1987.

As it must, our Court of Criminal Appeals has followed Pearce and Chaffin. In Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971), it held that a judge imposed penalty of 99 years, given on retrial after the jury in the first case had assessed 40 years, was illegal when not supported by the affirmative justification required by Pearce. It applied the same rule and found unassigned error in Bingham v. State, 523 S.W.2d 948, 949 (Tex.Cr.App.1975), when the second judge, who assessed greater punishment, did not try the ease the first time but was aware of the punishment assessed by the first judge and did not affirmatively support the sentence with the required data. Finally, in Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), the judge assessed greater punishment on retrial but filed findings of fact in which he attempted to justify the longer sentence. The essence of his findings was that additional evidence at the second trial about the violent nature of the crime and the defendant’s prior record justified a longer sentence. In remanding the case for reassessment of punishment consistent with Pearce, the court commented, “None of the factors which the trial judge listed as the basis for his increased punishment occurred after the time of the original sentencing.” 523 S.W.2d at 679.

The effect of the foregoing authorities on the sentence in this case is obvious. There is no evidence in the record before us of “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” The trial judge made extensive findings in support of her action but, as in Bowman, those properly supported by the evidence relate to the original crime, not to defendant’s subsequent conduct. Thus, the increased sentence was imposed in violation of North Carolina v. Pearce. Ground of error three is sustained.

Appellant does not request a remand, asking instead that we reform the judgment to reflect a sentence of 20 years. Because that is the maximum sentence that can be imposed consistent with Pearce, the request is granted, the judgment is reformed to assess punishment of twenty years in the Texas Department of Corrections and the sentence is reformed to provide that appellant shall be confined in the Texas Department of Corrections for an indeterminate term of not less than 5 nor more than 20 years. As reformed, the judgment is affirmed.

ON MOTION FOR REHEARING

In a well-reasoned brief in support of its motion for rehearing, the State suggests we erred in applying the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), to the facts of this case. While we are satisfied that our conclusions were correct, and observe that most of' the State’s arguments were answered either directly or inferentially in our original opinion, two matters require additional discussion.

The State argues that this case materially differs from Pearce because this appellant was granted a new trial by the trial judge, not by an appellate court. Although that is a difference, it is not a distinction. The purpose of Pearce is to forbid vindictiveness against a defendant who successfully pursues post-conviction remedies. As quoted from Pearce in our original opinion, due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he received after a new trial.” 395 U.S. at 725, 89 S.Ct. at 2080 (Emphasis added.) It is immaterial whether the new trial is obtained by an order from the trial court or by a judgment of an appellate court; the principles stated in Pearce still must be observed on retrial.

The State also contends, alternatively, that the trial judge complied with Pearce because her findings pinpoint identifiable conduct of the defendant occurring after the first sentencing proceeding. Specifically, says the State, she found an absence of remorse and indications of a life style by appellant that justified a greater sentence. Assuming arguendo that those findings articulate the kind of identifiable conduct contemplated by Pearce, we are unable to discern any evidence, i.e., “objective information,” in the record affirmatively establishing the occurrence of those matters within the requisite time frame. As previously discussed, Pearce requires (1) objective information (2) of identifiable conduct (3) by the defendant (4) occurring after the time of the original sentencing proceeding. 395 U.S. at 725, 89 S.Ct. at 2080. Element (4), at least, was not proven.

We have carefully considered all matters raised by the State in its motion for rehearing, but are satisfied we have correctly applied precedents we are required to follow. The motion for rehearing is overruled.

      . Although Pearce places the burden on the trial judge to prove that greater punishment on retrial was based on post-first-trial acts by the defendant, and was not the result of vindictiveness, (and conclusively presumes vindictiveness unless the sentence is properly justified), 395 U.S. at 725, 89 S.Ct. at 2080, Chaffin places the burden on the defendant to prove that the retrial jury was vindictive. 412 U.S. at 35, 93 S.Ct. at 1987.

      . This case demonstrates the excessive scope of Pearce. The trial judge filed detailed and valid reasons for the heavier punishment and there is nothing in the record to indicate that the increased punishment resulted from vindictiveness. However, the reasons affirmatively supported by evidence are based on events occurring during or after the crime but before the first trial. Although those matters were not brought out at the first trial, they cannot be used to increase punishment because none occurred after the first trial. Thus, the Supreme Court has established a conclusive presumption that the judge is vindictive if increased punishment is not based on post-first-trial acts by the defendant.

      .Because we are reforming a sentence entered prior to repeal of the indeterminate sentence law, compare art. 42.09 § 1, Tex.Code Crim.Pro. Ann. (Vernon 1979), with art. 42.09 § 1, Tex. Code Crim.Pro.Ann. (Vernon Supp.1981), we have imposed the indeterminate sentence that should have been imposed by the trial court.


author: CANNON, Justice.

text:
    Wallace Neil HIGGS, Jr., Appellant, v. STATE of Texas, Appellee.
    No. B14-82-248CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 5, 1983.
    Terrence Gaiser, Houston, for appellant.
    Calvin Hartmann, Richard Wilkinson, Karen Zellars, of Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and CANNON.
   OPINION

CANNON, Justice.

This is an appeal from a conviction for the felony offense of possession of a controlled substance. Upon a plea of not guilty, the court found appellant guilty as charged. Simultaneously, the trial judge overruled appellant’s Motion to Suppress Evidence. After a pre-sentence investigation, the court assessed punishment at ten years in the Texas Department of Corrections. Notice of appeal was timely filed. Appellant bases his appeal on four grounds of error; we sustain appellant’s third and fourth grounds of error and reverse.

In his third and fourth grounds of error, appellant contends that he did not waive his right to a trial by jury because he did not execute a written waiver of trial by jury. This issue was just recently addressed by this court in Breazeale v. State, 655 S.W.2d 230 (Tex.App.—Houston 1983), wherein Judge Junell wrote:

Trial by jury is a fundamental right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Additionally, the right is embodied in TEX. CONST, art. I, § 15, and TEX.CODE CRIM.PRO.ANN. art. 1.12 (Vernon 1977).
The form judgment contains the recitation, “the Defendant, in person and in writing, in open court, having waived his right of trial by jury....”
The Texas Court of Criminal Appeals has declared that the waiver of right to trial by jury cannot be inferred from mere acquiesence in a non-jury proceeding. Samudio v. State [648 S.W.2d 312], No. 546-82 (Tex.Crim.App. February 9, 1983 not yet reported). However, the code of criminal procedure provides:
Art. 1.13 Waiver of trial by jury.
The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon .entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must he made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the Court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. (Emphasis added.)
TEX.CODE CRIM.PRO.ANN. art. 1.13 (Vernon 1977).
The state urges, in an argument which we find most unconvincing, that we should rely on the so-called “regularity of judgments rule” and presume that appellant in fact waived the right to trial by jury since the record is silent but for the above quoted judgment recital....
The requirements of article 1.13 are clear and mandatory in felony cases: the waiver must be in writing and signed by the defendant. See Ex parte Felton, 590 S.W.2d 471 (Tex.Crim.App.1979). We hold that the so-called “presumption of regularity of judgments” rule does not apply to fundamental, constitutionally protected rights such as the right to trial by jury. A recital in the judgment, in and of itself, is wholly insufficient to withstand constitutional or statutory muster with regard to the waiver of trial by jury in felony cases. The record before us contains no indication that appellant knowingly, voluntarily and intelligently relinquished his right to trial by
jury. See Patton v. United States, 281 U.S. 276 [50 S.Ct. 253, 74 L.Ed. 854] (1930). A waiver of jury can never be presumed from a silent record, at least on a direct appeal. Samudio [648 S.W.2d at 314], No. 546-82 at 3. Thus the state has failed to sustain its burden of demonstrating that appellant intelligently waived jury trial. Without a waiver which meets the requirements of article 1.13, a felony conviction should not have been entered. See Felton, 590 S.W.2d [471] 472; TEX.CODE CRIM. PRO.ANN. art. 1.15 (Vernon Supp.1982). Ground of error one is sustained.

Therefore, since appellant’s third and fourth grounds of error are dispositive of this ease, we will not take the liberty to address appellant’s other two grounds of error.

The judgment of the trial court is reversed and this cause is remanded to the trial court for proceedings consistent with our holding.


author: PHILLIPS, Chief Justice. GAMMAGE, Justice,

text:
    Sandra JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 3-82-355-CR(T).
    Court of Appeals of Texas, Austin.
    Nov. 16, 1983.
    Rehearing Denied Dec. 14, 1983.

      Roy E. Greenwood, Austin, for appellant.
    Jeffrey L. Van Horn, Criminal Dist. Atty., Lockhart, Roy Q. Minton, Minton, Burton, Foster & Collins, Austin, for appel-lee.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   PHILLIPS, Chief Justice.

Sandra Jones appeals the trial court’s judgment, based upon the jury’s verdict, finding appellant guilty of murder, and sentencing her to twenty-five years in the Texas Department of Corrections.

Appellant challenges the trial court’s judgment in that (1) the evidence is insufficient, and (2) the trial court erred in allowing the State to introduce evidence of a polygraph examination given to appellant. We do not reach the other grounds of error raised by appellant since we find reversible error accompanied by sufficient evidence. We thus reverse and remand.

The deceased, David Johnson, was found dead on the morning of Saturday, July 7, 1979, lying face down in a roadside ditch outside of Luling, Texas, with a fatal gunshot wound to his head. His front pockets had been turned inside out, although $31 and his wrist watch were found still on his person. Spent six-millimeter rifle shells, assorted cigarette butts, an empty cigarette package, a blue butane lighter, an empty whiskey bottle in a sack, a shot-up beer can, and a six-millimeter rifle leaning against a fence post were discovered near the body; a bloody towel smeared with the same blood type as the deceased’s was found one and one-half miles from the scene. The local authorities also discovered small holes in the roadway where it appeared the deceased’s body had been dragged. Later that same day, the deceased’s pick-up truck was discovered parked in Luling approximately 200 yards from appellant’s mother’s home. A visual inspection of the pickup truck revealed blood on the driver’s side door, the driver’s seat, and the back bed of the vehicle. The inspection also revealed a bullet crease on the front hood of the pick-up truck.

Upon further investigation, the local authorities discovered that the deceased had been in frequent company with the appellant the days preceding his death. The record shows that appellant, originally from Chicago, was in Luling visiting her mother and brother. She was seen with the deceased two nights before his murder at a local bar in Luling. On Friday, July 6, 1979, appellant, her brother, and the deceased spent the morning driving around the area drinking beer. That afternoon, appellant and her brother accompanied the deceased to a local bank where he cashed $600 in checks, which money he kept on his person. They then spent the afternoon at the Luling auction. Sometime around suppertime, the deceased and appellant dropped appellant’s brother off at appellant’s mother’s home. The deceased and appellant were then seen shortly thereafter at a grocery store in Luling and a short period later at a friend’s home. Shortly thereafter they were seen at another friend’s home where the deceased paid the friend $20 for catching a bull the deceased had recently purchased. The last time they were seen together was in the early evening of Friday, July 6, 1979.

At around 10:00 p.m. on this Friday night, the deceased was last seen alive. He had returned home to pick up his rifle so that he could “go hunting.” His father saw an unidentified person in the truck with him as the pick-up truck drove off. A few hours later, a little after midnight early Saturday morning, the deceased’s pickup truck was seen parked on private property approximately 200 yards from appellant’s mother’s home in Luling. A cursory inspection of the pick-up truck by a relative of the landowner revealed that the truck was empty and that the doors were locked. At approximately this same time, appellant returned to her mother’s home quite upset with a dark stain on the front of her blouse. She then proceeded to have a discussion with her brother. The next morning, shortly before the deceased’s body was found, the deceased’s pick-up truck was again observed parked 200 yards from appellant’s mother’s home. Later that day, appellant flew home to Chicago.

The record shows that the deceased died as a result of a gunshot wound to his head fired from a six millimeter rifle at least 15-18 inches from his head, sometime between 10:00 p.m. Friday and early Saturday morning. The State’s ballistics expert testified that he could not positively state that the six-millimeter rifle, found near the deceased’s body, was the murder weapon because the rifle slug had shattered into too small of pieces, upon entering the deceased’s skull, for an accurate examination. He did testify that it was similar to the weapon that was employed in murdering the deceased. A fingerprint expert, called by the State, testified that he found appellant’s fingerprints in the truck on the driver’s side inside door panel above the maintenance sticker, among other places within the truck’s interior.

At the close of the State’s case, appellant moved the trial court to grant an instructed verdict citing that the State had produced insufficient evidence to convict her of the charged crime. The trial court refused.

During the punishment phase of the trial, appellant testified that she was twenty-six years old, married, the mother of six children, and normally, a resident of Chicago. She stated that she had journeyed to Luling to visit her mother and that she normally stayed two weeks while she visited relatives there. She further testified that she had had sexual intercourse with the deceased at his insistence the Friday night of his murder. Appellant testified that the deceased had physically forced her to comply with his demands. She further told how she had escaped from the farm house where he had attacked her and had then run up the dirt road. The deceased then followed in his pick-up truck, apologized to appellant for struggling with her, and talked her back into the pick-up truck.

Appellant further testified that the deceased had then stopped the pick-up truck and started to shoot at a beer can which was lying in the road. He then returned to the truck and placed the rifle in the rear of the truck where appellant was seated. Appellant then picked up the rifle, pointed it at the deceased, and demanded that he take her home. She testified that the deceased then “grabbed the gun and it went off.” She denied having intentionally shot him. She got out of the truck, dragged his body across the dirt roadway to the ditch — wearing her high heel shoes — and drove home, parking the deceased’s pick-up truck approximately 200 yards from her mother’s home. Appellant further testified that when she returned home she did have blood on her blouse and that she did have a discussion with her brother.

At this punishment phase of the trial, the Sheriff testified that appellant had initially told the authorities that the deceased had been shot by two black males, his body dragged into the ditch, and his pockets gone through while they had been driving in the country. He further testified that appellant had changed her version of the events several times throughout his investigation of the murder. Appellant had during cross-examination confirmed that she told such a story, but insisted that it was a fabrication.

Appellant contends that “the trial court erred in admitting the results of a polygraph examination made of appellant ... to generally impeach the truthfulness and veracity of the appellant.”

Upon examination of the record, we find that during the punishment phase of the trial, appellant, upon being cross-examined by the special prosecutor, admitted taking a polygraph exam and having lied in response to several of the questions. Sheriff Reed was then recalled and testified as to the substance of the polygraph exam and the results of the test. Over objection, Sheriff Reed testified that the polygraph examiner had indicated to him that appellant was lying in denying her part in the murder.

Even in the absence of objections, the trial court should not have allowed the evidence regarding the polygraph exam before the jury. The results of a polygraph examination are never admissible in court to establish any matter. Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980). Despite the State’s contentions, appellant did not waive her right to complain of this reversible error by her answering of the State’s improper questions. Nor did appellant waive her right to complain of this reversible error by her admissions in the punishment stage. The State cites no authority supporting this theory of waiver. We hold that there was no waiver. This is especially true under these facts, since the polygraph issue was used to implicity impeach appellant’s accident defense.

Since appellant challenges the sufficiency of the evidence, we must resolve the issue to determine the disposition of this case. Hooker v. State, 621 S.W.2d 597 (Tex.Cr.App.1980). Appellant alleges that the trial court should have granted appellant’s motion for an instructed verdict. We overrule this ground of error.

We initially note that as of the time appellant moved for a directed verdict, the evidence was insufficient to support the judgment. The only evidence tying appellant to the murder at that point was that she had been seen in the victim’s company as of the Friday before his body was discovered on Saturday, that there was a spot on her blouse that Friday, that two cigarette butts of the type appellant smoked were found near the body, that appellant was wearing shoes (high heels) that could account for the holes in the road near the body, and that appellant’s truck was found parked about 200 yards from appellant’s mother’s house.

Appellant contends that this Court cannot consider appellant’s punishment-stage testimony in assessing the sufficiency of the evidence. However, evidence from the punishment stage is considered along with the testimony given in the guilt-innocence stage for the purpose of testing the sufficiency of the evidence. Daughtrey v. State, 544 S.W.2d 158 (Tex.Cr.App.1976). This rule is applicable to those individual elements of the offense admitted by the defendant; the defendant need not admit all elements of the offense for the rule to apply. Daughtrey v. State, supra; Cf. Smyth v. State, 634 S.W.2d 721 (Tex.Cr.App.1982); Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975).

Appellant does not contend that the evidence, when her own testimony is considered, is insufficient to support the judgment. She argues only that this Court may not consider her testimony. Here, in the punishment stage appellant testified on direct examination that she was present when the victim was shot, that she pointed the rifle at the victim, that the rifle discharged and that she pulled the body away from the truck. She did not report what had occurred; instead, she left town. There was testimony that the deceased, had $600 on his person the day he was shot, and that he was found with $31 and with his pockets pulled out. Appellant admitted giving at least one false version of what had occurred at the scene of the shooting. We note also that appellant’s version of how the gun went off was impeached by her prior inconsistent statement. Use of this statement is challenged in a separate ground of error. However, any such error was waived by appellant’s failure to object at trial. Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980.)

Having reviewed the evidence, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (opinion on State’s motion for rehearing).

Reversed and Remanded.

GAMMAGE, Justice,

concurring in part and dissenting in part.

I concur in the reversal of this conviction, but I must respectfully dissent from the decision of the majority to remand the cause for a new trial.

Appellant’s testimony at the punishment stage of her trial — that she was forcibly raped twice by an assailant who, after an attempted third rape, in response to her pleas to be taken home, explained that she would also have to “take care of” his friends, and who grabbed the barrel of the rifle held by appellant whereupon it discharged and killed him — is clearly not a judicial confession to murder, the offense for which the jury was charged and the verdict was returned.

The majority correctly notes that, at the time appellant moved for a directed verdict, the evidence was insufficient to support a conviction. However, the majority goes on to hold that any evidence from the punishment stage of the trial may be read-back and considered along with that admitted in the guilt-innocence stage for the purpose of testing the sufficiency of the evidence. I believe such an interpretation of the “read-back rule” to be incorrect. It purports to allow such evidence to include statements amounting to less than a judicial confession — an admission of the essential elements of the offense for which a verdict of guilty has been returned.

At the guilt-innocence stage, this case involved only circumstantial evidence which was clearly insufficient to support the conviction of appellant for murder or any other crime. After the trial court erroneously overruled appellant’s motion for a directed verdict, and after the jury was erroneously allowed to render its guilty verdict, appellant testified during the punishment stage to the circumstances surrounding the death of the deceased. At no time did appellant admit the act of firing the rifle or that she intentionally or knowingly caused the death of the deceased. These elements are essential to constitute a judicial confession to the offense of murder. We may not presume their presence to defeat the presumption of appellant’s innocence, nor may we infer them to convert appellant’s exculpatory statement into a judicial confession. See Harrell v. State, 659 S.W.2d 825 (Tex. Cr .App.1983).

In Daughtrey v. State, 544 S.W.2d 158 (Tex.Cr.App.1976), relied upon by the majority, the Court of Criminal Appeals declined to pass on the question of sufficiency of the evidence because it had an inadequate record before it. While the Court in dictum at one point recited the read-back rule in the language used by the majority in the instant case, in stating the rationale for the rule at another point in the same paragraph it impliedly restricted its use to situations involving only judicial confessions.

In Smyth v. State, 634 S.W.2d 721 (Tex. Cr.App.1982), also relied upon by the majority, the Court of Criminal Appeals specifically declined to allow the accused’s admission of one element of the offense at the punishment stage to be used to cure the trial court’s error of admitting objectionable testimony of another, and otherwise unproven, element of the offense during the guilt-innocence stage of the trial.

Finally, in Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975), the accused took the stand at the punishment stage of his trial, admitted he shot the deceased and asked for forgiveness. The Court of Criminal Appeals held that, because of this admission during the punishment stage, the accused could not complain that the evidence at the guilt-innocence stage did not prove he shot the deceased.

In all the cases I have examined applying the read-back rule (or related cases dealing with statements of the accused which resulted in waivers to evidentiary objections), the involved statements included admissions to necessary elements of the offense for which the accused stood convicted.

In the instant case, however, while we have clearly insufficient evidence at the guilt-innocence stage to sustain a conviction for murder, we do not have a judicial confession at the punishment stage which may be read-back to overcome this deficiency. Furthermore, even were appellant’s statement in this case sufficient to constitute a judicial confession, I believe the rationale for the read-back rule — to allow the statement’s use in testing sufficiency of the evidence in order to avoid a further trial — no longer has valid application.

This rationale was adopted prior to the decisions of the United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), wherein it was held the double jeopardy clause of the Fifth Amendment precluded a second trial where the first conviction is reversed solely on the basis of insufficient evidence to sustain the jury’s verdict.

Since retrial is no longer possible in cases reversed for insufficient evidence, and since the rationale behind the read-back rule was that such retrials should be avoided because the inculpatory testimony of an accused at the punishment stage would only be used to provide sufficient evidence to sustain a guilty verdict at retrial, the basis for the read-back rule in cases involving insufficient evidence no longer exists.

As Presiding Judge Onion stated in the dissenting portion of his opinion in Gordon v. State, 651 S.W.2d 793 (Tex.Cr.App.1983), the decisions relied upon by the majority in the instant case

dealt with the sufficiency of the evidence, where defendant had admitted guilt only at the penalty stage of the trial, and reversal for lack of sufficient evidence would mean use of his testimony at any retrial. These cases may well be questioned in light of [Burks and Greene], particularly if a motion for instructed verdict is erroneously overruled at the guilt stage of the trial. [emphasis added]

Gordon at 797.

In the case before us we have just such a situation where a motion for instructed verdict was erroneously overruled. In the majority’s view, this error was waived because appellant took the stand at the punishment stage and made a statement which was even less than an admission of guilt.

I disagree. The judgment should be reversed and an acquittal ordered.

      . Texas Pen. Code Ann. § 19.02(a)(1) (1974) states:
      (a) A person commits an offense if he:
      (1) intentionally or knowingly causes the death of an individual.

      . The State is not bound by the exculpatory portion of appellant’s statement, since the statement was offered by appellant. Smith v. State, 491 S.W.2d 924 (Tex.Cr.App.1973).

      . "Further, this court has held that where a defendant challenges the sufficiency of the evidence to sustain a conviction, evidence from the punishment stage, including a judicial confession by the defendant, is to be considered in deciding the question.... As stated in [Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971) ] at p. 221: ‘It would be an exercise in futility to reverse such a case for insufficient evidence [at the guilt stage of trial] where the testimony of the appellant
        [judicial confession at the penalty stage of trial] could be used against him on a retrial.’ ” [emphasis added; brackets in original]

      . See for example:

        Wheeler v. State, 628 S.W.2d 800 (Tex.Cr.App.1982) (Accused pleaded guilty and admitted possession of heroin "as charged,” thereby waiving question of legality of search.)

        Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981) (Accused did not testify at all, but case sets out principle that if accused does testify he may waive his rights.)

        Lasker v. State, 573 S.W.2d 539 (Tex.Cr.App.1978) (Accused "admitted all the elements of the offense," and could not then challenge sufficiency of the evidence.)

        Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978) (Not in point, but accused argued it was a denial of due process to not permit him to admit guilt without waiving claimed error. Court said it was common sense and not a denial of due process.)

        Dugger v. State, 543 S.W.2d 374 (Tex.Cr.App.1976) (Accused confessed murder, thereby waiving sufficiency of evidence.)

        Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976) (Accused took stand at punishment phase in support of motion for probation and made “judicial confession” of burglary of a building.) Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976) (Accused admitted guilt to "offense charged,” thereby waiving objection to search.) Jones v. State, 518 S.W.2d 245 (Tex.Cr.App.1975) (Accused admitted guilt “of the allegations in the indictment," thereby waiving sufficiency of the evidence.)

        Downey v. State, 505 S.W.2d 907 (Tex.Cr.App.1974) (Accused admitted possession of marihuana, thereby waiving legality of search.)

        Sims v. State, 502 S.W.2d 730 (Tex.Cr.App.1973) (Accused admitted possessing capsule containing heroin, could not then contest legality of search.)

        Rozell v. State, 502 S.W.2d 16 (Tex.Cr.App.1973) (Accused testified he was guilty at punishment stage, granting of new trial to get co-defendant's testimony would serve no purpose.)

        Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973) (Accused took stand to "explain away” items in vehicle, admitted they were there, thus waiving probable cause objection to search.)

        Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972) (Accused pleaded guilty and testified as to extraneous offense, thereby waiving objection to State’s witness testifying to same.)

        McKenzie v. State, 487 S.W.2d 65 (Tex.Cr.App.1972) (Accused made judicial confession, thereby waiving objection to tainted identification.)

        Sheridan v. State, 485 S.W.2d 920 (Tex.Cr.App.1972) (Accused admitted possessing marihuana, thereby waiving probable cause objection to search.)

        Evans v. State, 480 S.W.2d 387 (Tex.Cr.App. 1972) (Accused took stand at guilt stage and admitted shooting his wife, could not then object to admissibility of statement of a witness as to accused’s earlier admission of same at scene.)

        Chaney v. State, 477 S.W.2d 580 (Tex.Cr.App.1972) (Accused judicially confessed to possession of heroin, thereby waiving objection to legality of search.)

        Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App. 1972) (Accused admitted possessing heroin, cannot question lawfulness of search.)

        Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971) (Accused at punishment stage, admitted possession of marihuana, thereby waiving sufficiency of evidence.)

        Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970) (Accused admitted guilt and asked for mercy, thereby waiving sufficiency.)


author: COLLEY, Justice.

text:
    Stoney WHITTINGTON, Appellant, v. STATE of Texas, Appellee.
    No. 12-81-0148-CR.
    Court of Appeals of Texas, Tyler.
    Jan. 19, 1984.
    Rehearing Denied Feb. 9, 1984.
    Discretionary Review Refused Oct. 24, 1984.

      John D. Griffin, Center, for appellant.
    John Walker, Dist. Atty., Bill Warren, Center, for appellee.
   COLLEY, Justice.

On August 18, 1981, Whittington waived his right to trial by jury and pleaded guilty to the offense of Delivery of a Controlled Substance, to-wit: Phenmetrazine. His punishment was assessed by the court at five years confinement pursuant to a plea bargain agreement.

Whittington complains on appeal that the trial court erred in overruling certain pretrial motions, to-wit: (1) for a change of venue; (2) to set aside the indictment; (3) for continuance; and (4) to require rulings on pretrial motions by the trial court in open court. We affirm.

Whittington filed two motions to set aside the indictment alleging, inter alia, as grounds therefor that he was not served with a copy of the indictment immediately after the presentment of same and the filing thereof with the District Clerk as required by art. 25.01 of the Code of Criminal Procedure; that eleven grand jurors illegally met and discussed his case without the knowledge of the district judge; that Whittington did not have notice that the grand jury was being reassembled before the presentment of the indictment because the order of the court and summons issued thereto to reconvene the grand jury were not filed until the time of the filing of the indictment in the District Court; and that an unauthorized person was present during the grand jury deliberations in his case.

Whittington filed two motions to set aside the indictment, alleging the State was not ready for trial within the time limitations fixed by art. 32A.02 of the Code of Criminal Procedure, and therefore he was entitled to discharge pursuant to art. 28.-061.

The record shows that Whittington was arrested, presumably on a felony complaint, on August 13, 1980, and confined in jail until December 12, 1980, at which time he was released on bail. A certified copy of the indictment was served on Whitting-ton on October 1, 1980. He was tried on August 13, 1981. We perceive no reversible error is presented because of the delay in the service of a copy of the indictment. Whittington pleaded guilty before the court approximately ten and one-half months after he received a copy of the indictment. The record fails to demonstrate how he was harmed by the delay. Wray v. State, 89 Tex.Cr.R. 632, 232 S.W. 808 (1921). No “due process” or “equal protection” rights were violated. Jamerson v. Estelle, 666 F.2d 241 (5th Cir.1982). Ground four is overruled.

In his second ground of error Whittington contends that the indictment should have been set aside because (1) he had no opportunity to challenge the array, or any individual member of the grand jury and (2) he was deprived of his right to an examining trial. We observe that Whit-tington has not filed a motion to quash the indictment challenging the array of the grand jury or any member thereof respecting the legality of the selection of such panel, or any member thereof as he was entitled to do under the provisions of art. 27.03, Section 3 of the Code of Criminal Procedure. Indeed, even in this court Whittington does not challenge the regularity of the selection, organization, and im-panelment of the grand jury. His argument that he was deprived of such rights is without merit. Whittington claims that since he was indicted before an examining trial was afforded him, he was deprived of due process and equal protection under both the state and federal constitutions. We do not agree. It has long been the law in this state that the return of an indictment terminates any right to an examining trial with reference to an adult defendant under art. 16.01. Loss of the right to an examining trial does not offend any state or federal constitutional provision since the return of the true bill of indictment serves the identical purpose that an examining trial serves, viz., “... that there is probable cause to believe the ‘accused’ committed the crime charged.” Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971). No “due process” or “equal protection” rights are involved. Ground two is overruled.

Whittington argues under his third ground that the trial court erred in overruling his motion to set aside the indictment and discharge him because the State was not ready for trial within 120 days following his arrest on August 13, 1980, as required by the Speedy Trial Act. As already noted, Whittington filed a pretrial motion to set aside the indictment and for discharge under the Speedy Trial Act. The motion was filed on June 1, 1981, and urged in a pretrial hearing conducted on June 2, 1981. It is undisputed that the State announced ready on November 3, 1980, and again on June 2, 1981. No evidence was presented by Whittington on June 2, 1981, or at any other time to rebut the State’s prima facie showing that it was ready for trial. Under such circumstances the State has shown compliance with the time limitations of the act. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). Whittington also complains that since he was confined in jail from August 13, 1980, until December 12, 1980, his trial should have been given preference for trial earlier than other criminal actions pending in the District Court of Shelby County by virtue of the provisions of art. 32A.01. Judge Odom in Barfield v. State, supra, noted by way of dictum that the last mentioned article was addressed “... in an advisory fashion to the courts of the State....” Aside from Judge Odom’s comment, we find no other case discussing an alleged failure of a trial judge to give preference to the trial of cases of jailed defendants over the trials of cases of defendants at liberty on bail pending trial. The record discloses that the District Attorney had testified that Whittington’s case was delayed because of the “court’s case load.” We also judicially notice that the 123rd Judicial District Court of Shelby County is comprised of two counties, Panola and Shelby, and that the court only has three terms each year in Shelby County beginning on the first Monday of the months of March, July and November, and that each term continues for eight weeks. Art. 199-123, Tex.Rev.Civ.Stat. Ann. (Vernon 1969). Given these facts and circumstances we are unable to conclude that the trial judge failed to give preference to the trial of Whittington’s case. We hold that the provisions of art. 32A.01 are advisory, and that failure of a trial judge to comply therewith does not constitute reversible error. Ground three is overruled.

Whittington complains of the trial court’s action overruling his motion for change of venue. Whittington claims that pretrial publicity created such prejudice against him that he could not receive a fair and impartial trial in Shelby County. At the time the motion was urged, Whitting-ton and the State agreed that the testimony of eight witnesses whose testimony was previously given in a hearing of a motion for change of venue filed and urged by the defendant in a case styled “The State of Texas v. Billy Gene Bridges, Jr., No. 11,-504, on the docket of the 123rd Judicial District Court of Shelby County on the 17th and 18th days of November 1980 would be considered by the court respecting the motion for change of venue in this ease. We have carefully reviewed such testimony. Only three witnesses out of six produced by the defendant Bridges testified that Bridges could not receive a fair trial in Shelby County. Those three were Bailey (Bridges’ uncle), Hutchison (Bridges’ mother-in-law) and Miller Thomas, an attorney who together with his law partners represented several persons indicted by the same grand jury for drug offenses similar to the offense with which Bridges was charged. Thomas testified that because of pretrial publicity produced by the news media, newspapers, radio and T.V. concerning a mass arrest of persons on August 13, 1980, by state and local law enforcement authorities (sixty-six indictments were returned the next day by the Shelby County grand jury), Bridges could not receive a fair and impartial trial in Shelby County. The remaining witnesses produced by Bridges were McCoy, editor of a local weekly newspaper; Sanders, news director of radio station KDET, Center; and Robert Pinkston, editor of another weekly newspaper circulated in Shelby and adjoining counties. Testimony and other evidence of news stories and transcripts of radio broadcasts reveal that the mass arrests of numerous persons charged with possession and delivery of controlled substances on the one evening, August 13, 1980, generated many headlines and news stories which were circulated by newsprint to most families in Shelby County. Sanders testified that he estimated the listening audience of his radio station to consist of some 800 to 1,000 families. Pinkston testified that his paper had a circulation of some 3,800 in Shelby County, and that the arrest, indictments, and trials of the numerous defendants was the "... most publicized event concerning criminal cases in ... last few years.” The State at the venue hearing produced two witnesses, Robin Collins, an attorney from Nacogdoches, and Harland Eakin, Shelby County Tax Collector. During the testimony of the state’s witnesses an exhibit was introduced showing the 1970 population of Shelby County to be 19,672. Eakin testified that the current voters list in Shelby County showed 12,525 registered voters in the county. Eakin also testified that he thought Bridges could receive a fair trial in Shelby County as did defendant’s witnesses McCoy, Sanders and Pink-ston. An analysis of the evidence reflects that most of the pretrial publicity describing the mass arrests and the indictments of the various defendants peaked during the first week or two following August 13, 1980. Some radio and newspaper stories appeared until the middle of November 1980. The pretrial motion was tried on June 2, 1981. The record does not show that any of the pretrial news stories, broadcasts or telecasts were exaggerated or inaccurate. None of the publicity focused on Whittington’s case but in the main simply reported the facts accurately concerning the mass arrests occurring on August 13, 1980, grand jury action, docket calls, and trial results obtained through the middle of November 1980. No evidence was introduced showing any newspaper, radio broadcast or telecast concerning Whittington’s case that were printed or made after November 1980. All of the pretrial publicity treating the events of August 13, 1980, were noninflammatory, accurate, and obviously written, spoken and printed to inform the public of news-worthy events. Based on the conflicting testimony above described, the trial court, as the trier of the facts, overruled the motion for change of venue. We hold that the trial court did not abuse its discretion in overruling the motion for change of venue Demouchette v. State, 591 S.W.2d 488, 490 (Tex.Cr.App.1979), cert. den’d 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996. Ground five is overruled.

Whittington asserts by his sixth ground of error that the trial court’s rulings on some of his pretrial motions were not made in open court. The record shows that all pretrial motions were heard and urged in open court, but that the trial judge took several of the motions under advisement and later made various docket entries overruling some of said motions taken under advisement by him in open court. This ground of error is not properly briefed in that no authority is cited in support thereof. Whittington complains such action denied him due process and equal protection by virtue of the 5th and 14th Amendments to the United States Constitution and Article 1 §§ 10 and 9 of the Texas Constitution. In addition, Whittington argues that the provisions of art. 28.01 requires that rulings on pretrial motions must be made in open court. We do not agree with Whittington’s view of art. 28.01. Such article simply requires all pretrial motions to be presented in open court in the presence of the defendant and his counsel. Indeed, we are now in fact reviewing such rulings of the trial court. There is no merit to Whittington’s contention. Ground six is overruled.

Whittington urges by his seventh ground that the trial court erroneously overruled his second motion for continuance. Such motion was filed and urged on August 17, 1981, before art. 29.08 was amended by Acts 1981, 67th Leg. p. 504, ch. 210, sec. 1, effective September 1, 1981. Before the 1981 amendment art. 19.08 read: “All motions for continuance on the part of the defendant must be sworn to by himself.” Whittington’s motion for continuance was signed and sworn to by counsel only. No error is shown. Lopez v. State, 585 S.W.2d 643 (Tex.Cr.App.1976); Zan-ders v. State, 515 S.W.2d 907 (Tex.Cr.App.1974). Moreover, such motion for continu ance failed to allege and the proof offered in support thereof did not establish that the presence of the alleged material witnesses for the defendant, Adams and Armstreet, whose unavailability for trial on August 17, 1981, constituted the grounds for the motion, could be reasonably expectéd at the next term of court. Article 29.07. Indeed, from the evidence adduced at the hearing it appears that a continuance granted because of the absence of the named witnesses would delay the trial indefinitely. Under this record the trial court did not abuse its discretion in overruling the second motion for continuance made by Whittington. Salinas v. State, 542 S.W.2d 864 (Tex.Cr.App.1976). Seventh ground of error is overruled.

Under his first ground Whittington argues that eleven of the grand jurors who returned the indictment against him in this case were subjected to improper influence prior to the time that they were reassembled by the district judge.

The record shows that the grand jury was selected and impaneled at the July 1980 term of court and had been discharged the same month. The grand jury was reassembled by order of the District Judge and met on August 14, 1980, to consider charges against various defendants, including Whittington. On August 8, 1980, apparently at the suggestion of the Shelby County Sheriff, eleven members of the grand jury panel met in the directors room of a bank in Center. The sheriff and one of his deputies attended the meeting. The avowed purpose of the meeting was to discuss criminal drug activity in Shelby County. Neither the district judge nor the district attorney knew of such meeting. At this meeting, the sheriff hinted of things to come. He informed the jurors that they would be reassembled by the court to consider “drug cases.” The sheriff said that he and other law enforcement authorities had at great personal risk worked on numerous drug cases which this grand jury would have to consider shortly, and asked the grand jurors for their support to “clean up the dope problem in Shelby County.” The defendant’s identity as one of the persons being involved was not revealed, nor were the names of any other defendants or cases alluded to by the sheriff or his deputy during the course of the meeting.

Whittington contends that the indictment should have been set aside by the trial court because the private meeting of such jurors with the sheriff and his deputy on August 8 was illegal, and that such jurors acquired a bias or prejudice against him as a result of communications between the jurors and the sheriff and his deputy. We conclude such contentions are totally without merit. First, the meeting on August 8 did not constitute a meeting of the grand jury because such panel had been discharged by the trial judge in July 1980 and, as of the date of the "meeting,” had not been reassembled by order of the judge under art. 19.41. Hence the meeting was nothing more than a free assembly of private citizens wholly without any official power or authority to investigate or accuse any person or persons suspected of committing criminal offenses. However, if the sheriff and his deputy intended and sought to entreat the jurors to indict Whittington or any other person upon considerations other than those authorized by law, such conduct would be improper, if not unlawful. Section 36.04, Texas Penal Code. There is no evidence in this record showing that either the sheriff or his deputy attempted to persuade any one or more of the eleven former members of the grand jury to so act. The entire dialogue between the officers and the eleven citizens amounted to nothing more than a “do your duty” pep talk. The meeting was, as it was characterized by one of the testifying grand jurors, “useless.” It was also ill-advised and served only to cast suspicion and doubt on the integrity of the actions of the grand jury. We conclude that its occurrence did not harm Whittington. The testimony of the eleven persons present at that meeting was unanimous to the effect that no specific cases or names of any suspected person or persons was even mentioned by the sheriff or his deputy.

Another aspect of Whittington’s contention is that such alleged improper influence, bias and prejudice, deprived him of “due process” and “equal protection.” Such claims seem frivolous to us since Whittington pleaded guilty; however, since this ground as raised in the pretrial written motion to set aside the indictment arguably comports with the ground presented in Whittington’s brief, we must nevertheless consider it. Article 44.02. Since no challenges are made to the qualifications, selection or organization of the grand jury panel or any member thereof, no “equal protection” rights are involved.

Next we consider whether the “due process” clause of the 5th Amendment to the United States Constitution or the provisions of Article 1, § 19 of the Texas Constitution requires us to reverse the conviction and order dismissal of the indictment against Whittington because of the events of August 8, 1980, above discussed.

The United States Supreme Court, speaking through Justice Black, declared in Costello v. U.S., 350 U.S. 359, 361, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), "... the grand jury [convenes] as a body of layman, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.” Further, Justice Black stated in effect that grand jurors "... act on their own knowledge and ... [are] free to make their presentments or indictments on such information as they deem satisfactory.” Article 1, § 10 of the Texas Constitution provides in part, "... and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.” Article 19.34 prescribes the oath to be administered the grand jurors before they began their sessions. The oath contains the following language:

You shall present no person from envy, hatred or malice; neither shall you leave any person unpresented for love, fear, favor, affection, or hope of reward; but you shall present things truly as they come to your knowledge, according to the best of your understanding, so help you God.

This oath, in substantially the same language, has been a part of our statutory law for more than one hundred years. It has been said that the institution of the grand jury was so essential to basic liberties that it was incorporated into the 5th Amendment of the United States Constitution. U.S. v. Hogan, 712 F.2d 757, 759 (CA 2 1983); and in Texas, the requirement that persons must be prosecuted for felony offenses only on indictment by a grand jury has been included in every Texas Constitution. (See interpretive commentary to Article 1, § 10, Texas Constitution (Vernon 1955.) In consideration of the importance of the place occupied by the grand jury in our system of government, Texas courts have long described the grand jury as a separate tribunal, independent of the control of judges and prosecutors, whose proceedings are secret, vested with broad inquisitorial powers. Dockery v. State, 35 Tex.Cr.R. 487, 34 S.W. 281 (1896); Barnes v. State, 134 Tex.Cr.R. 461, 116 S.W.2d 408, 409 (1938); Rodgers v. County of Taylor, 368 S.W.2d 794, 796-797 (Tex.Civ.App.—Eastland 1963, writ ref d n.r.e.); see also Ex parte Gould, 60 Tex.Cr.R. 442, 132 S.W. 364, 365 (1910); also see art. 19.01, et seq. and art. 20.01, et seq.

In the recent decision of U.S. v. Sells Engineering, Inc., 463 U.S. 418, 103 S.Ct. 3133, 3137, 77 L.Ed.2d 743 (1983), Justice Brennan observed that the [federal] grand jury “... has always occupied a high place as an instrument of justice in our system of criminal law....,” and that “[I]t serves the ‘dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.’ ” (Quoting from Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972). Again in U.S. v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561, the Supreme Court recounted some attributes of the grand jury, saying,

Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law.. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. ‘It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.’ Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919).

Certainly no less may be said for the grand juries of this state. Each of the pronouncements by the United States Supreme Court are as true of the Texas grand juries as they are of federal grand juries. The integrity and independence of our grand jury system must be protected from unwarranted intrusion by way of prosecutorial misconduct as well as improper influences exerted upon the grand jurors which is calculated to evoke grand jury action based on prejudice and bias alone. The 5th Circuit stated in U.S. v. Cathey, 591 F.2d 268, 273-274 (1979), that if improper and inflammatory remarks made by a government agent witness before a grand jury so biased the grand jurors that their votes were based on their bias, the resulting indictment would be dismissed.

In our case, as already noted, neither the sheriff nor his deputy made any remarks concerning Whittington or the facts relating to the offense with which he was later charged. The trial judge heard all the evidence pertinent to Whittington’s contention here, and we conclude that he did not abuse his discretion in overruling Whittington’s motion to set aside the indictment based on the grounds that the grand jury’s indictment was returned by votes based solely on bias or prejudice as Whittington contends. No violation of Whittington's due process rights is shown.

Finally we address Whittington’s contention that the trial judge erred in overruling his motion to set aside the indictment because an unauthorized person was present during the deliberations of the grand jury on August 14, 1980. After a careful review of the evidence contained in the statement of facts, we conclude that the record does not factually support Whittington’s contention. He failed to discharge the burden required of him. Ray v. State, 561 S.W.2d 480 (Tex.Cr.App.1977). The trial judge impliedly found that no unauthorized person was present during the deliberations by his action in overruling the motion to set aside the indictment on such ground. We find no abuse of discretion by the trial judge. Whittington’s first ground of error is overruled.

The judgment of the trial court is affirmed.

      . All references to articles refer to the Texas Code of Criminal Procedure unless otherwise indicated.

      . The motion alleged, “it appears that at least eleven grand jurors met and discussed this case, ... prior to being reassembled by the district judge-”


author: McNICHOLAS, Justice.

text:
    Eldridge Darwin STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-137 CR.
    Court of Appeals of Texas, Beaumont.
    April 11, 1984.
    Discretionary Review Refused Oct. 31, 1984.
    G. Patrick Black, Beaumont, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

McNICHOLAS, Justice.

This is an appeal from a conviction for burglary of a building. Punishment, enhanced by a prior felony conviction, was assessed by the court at confinement for 20 years.

On January 17, 1983, appellant entered his plea of nolo contendere, made a judicial confession to the offense charged in the indictment, and answered “[t]rue” to the enhancement paragraph. The court accepted the judicial confession and appellant’s plea and asked appellant’s counsel if he would like to “put on evidence at the punishment or a PSI”, whereupon counsel replied “PSI, Your Honor. We might put on live evidence depending on events that will happen between now and then.” The court ordered a pre-sentencing report and stated to appellant “between now and the 22nd of February the Probation Department is going to prepare a report for me. Whenever you come back on February 22nd I will give you my decision at that time.”

On February 17, 1983, appellant filed his “Motion To Withdraw Plea Of Nolo Contendré [sic].” This motion was filed 31 days after the court had accepted appellant’s plea, heard the testimony and took the punishment phase of the ease under advisement. Appellant’s plea of nolo contendere has the same legal effect as a plea of guilty. Lawrence v. State, 626 S.W.2d 56 (Tex.Crim.App.1981). Where the appellant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. De-Vary v. State, 615 S.W.2d 739 (Tex.Crim.App.1981); McWherter v. State, 571 S.W.2d 312 (Tex.Crim.App.1978).

The unsworn motion to withdraw the plea of nolo contendere alleges, as grounds therefor, the following:

“Newly available evidence material to the defense has been discovered since Defendant’s plea was entered. The Affidavit of Mr. Herbert Tezeno supporting this allegation is attached hereto as Exhibit “A” and made a part hereof for all purposes. Such testimony and evidence was known to this Defendant on January 17, 1983, but said Defendant was then unable to present such evidence for the reason that Mr. Tezeno and his attorney of record ... both desired that Mr. Tez-eno be sentenced by this Honorable Court prior to Mr. Tezeno giving testimony or Affidavits....”

There was attached to the motion an affidavit of Tezeno, the effect of which Tezeno admitted his guilt and absolved appellant of any intent to commit the offense of burglary. However, Tezeno, in his affidavit, does not state that he would not have testified at appellant’s trial.

In his attempt to show that such evidence was “newly available”, appellant’s motion merely states that Tezeno and his counsel desired that Tezeno be sentenced by the court in the charge of burglary against him prior to his giving testimony in the case against appellant. There was no hearing conducted on this motion, and the record does not show any request for such hearing, or that any such hearing was denied by the court. The allegations contained in this unsworn motion does not state that Tezeno had refused or would refuse to testify at appellant’s trial.

A motion to withdraw appellant's plea containing factual allegations should be considered by the same rules applicable to a motion for new trial. Allegations in motions for new trials, even though timely filed, do not prove themselves. Rios v. State, 510 S.W.2d 326 (Tex.Crim.App.1974); Vaughn v. State, 456 S.W.2d 141 (Tex.Crim.App.1970). “An affidavit attached to the motion is but a pleading that authorizes the introduction of supporting evidence. It is not evidence in itself; and in order to constitute evidence it needs to be introduced as such at the hearing on the motion.” Stephenson v. State, 494 S.W.2d 900 (Tex.Crim.App.1973). Such was not done in the case at bar.

Under the above circumstances we find no abuse of discretion overruling appellant’s motion to withdraw his plea.

The judgment is affirmed.