author: CAMPBELL, Justice.

text:
    Louis REDINGER, Petitioner, v. LIVING, INC., Respondent.
    No. C-2962.
    Supreme Court of Texas.
    May 8, 1985.

      Helm, Pletcher and Hogan, Stephen W. Hanks, Houston, for petitioner.
    Baker and Botts, Elaine B. Bristow, Houston, for respondent.
   CAMPBELL, Justice.

Louis Redinger sued Living, Inc., the general contractor, and Bobby Baird, an independent contractor, for damages resulting from an injury to Redinger’s finger. The trial court rendered judgment for Re-dinger based on jury findings that Baird was fifty percent negligent and that Living, Inc. was fifty percent negligent. The court of appeals reversed the trial court judgment because of jury misconduct, and remanded the cause for a new trial. 667 S.W.2d 846. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Living, Inc. was the general contractor on the building construction site. Bobby Baird was the dirt hauling subcontractor, and Redinger was an employee of a plumbing subcontractor. David Yargo, the superintendent for Living, Inc., was preparing the site for a subcontractor to pour concrete. When the concrete trucks arrived, piles of dirt placed by Baird blocked the route to the work area. Yargo ordered Baird to move the dirt. As he was moving the dirt, the box blade of his tractor crushed Redinger’s left index finger.

The jury refused to find that Redinger was negligent for failing to keep a lookout. However, the jury found that Living, Inc. was fifty percent negligent in allowing Bobby Baird to operate his tractor while Louis Redinger and others were working in the area and also for failing to warn.

Living, Inc. and Redinger bring applications for writ of error to this court. Living, Inc. contends the court of appeals erred in failing to render judgment that Redinger take nothing against it because Living, Inc., a general contractor, does not have a duty to Redinger, an employee of a subcontractor. Redinger contends the court of appeals erred in remanding the cause for a new trial because of jury misconduct.

We will first consider whether a general contractor has a duty to a subcontractor’s employee, and, if so, whether there is evidence in this case that the duty was breached. An owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950). A general contractor on a construction site, who is in control of the premises, is charged with the same duty as an owner or occupier. Id. 226 S.W.2d, at 431. This duty to keep the premises in a safe condition may subject the general contractor to direct liability for negligence in two situations: (1) those arising from a premises defect, (2) those arising from an activity or instrumentality. J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.); Moore v. Texas Company, 299 S.W.2d 401 (Tex.Civ.App.—El Paso 1956, writ ref’d n.r.e.). This is not a premises defect case. Rather, this case involves an injury caused by an activity conducted on the premises.

The general rule is that an owner or occupier does not have a duty to see that an independent contractor performs work in a safe manner. Abalos v. Oil Development Co., 544 S.W.2d 627 (Tex.1976).

... [W]here the activity is conducted by, and is under the control of, an independent contractor, and where the danger arises out of the activity staff, the responsibility or duty is that of the independent contractor, and not that of the owner of the premises. Id. at 631 (citing Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973)).

However, when the general contractor exercises some control over a subcontractor’s work he may be liable unless he exercises reasonable care in supervising the subcontractor’s activity. We adopt the rule enunciated in the Restatement (Second) of Torts:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1977).

Several other states follow the Restatement of Torts. See, e.g. Everette v. Alyeska Pipeline Service Co., 614 P.2d 1341 (Alaska 1980); Conover v. Northern States Power Co., 313 N.W.2d 397 (Minn.1981); Stepanek v. Kober Construction, 625 P.2d 51 (Mont.1981); New Mexico Electric Service Co. v. Montanez, 89 N.M. 278, 551 P.2d 634 (1976); Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982); Kelley v. Howard S. Wright Construction Co., 90 Wash.2d 323, 582 P.2d 500 (1978).

This rule applies when the employer retains some control over the manner in which the independent contractor’s work is performed, but does not retain the degree of control which would subject him to liability as a master. Restatement (Second) of Torts § 414, comment a (1965). The employer’s role must be more than a general right to order the work to start or stop, to inspect progress or receive reports. Id., comment c (1965).

He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.

Id., comment a (1965).

There is evidence that Living, Inc. retained the power to direct the order in which the work was to be done and to forbid the work being done in a dangerous manner. When the concrete trucks arrived at the site, Yargo ordered Baird to immediately move the dirt to another location. Yargo exercised supervisory control by coordinating the work performed by two subcontractors. Living, Inc. owed a duty to Redinger to exercise this supervisory control in a reasonable manner.

There is evidence that Living, Inc. negligently exercised this control. The dirt was located within one to five feet of an area where Redinger and employees of other subcontractors were working. While Baird was moving the dirt, his back-hoe operated within one to five feet of Redinger and the other workers. There is evidence to support the jury finding that Living, Inc. was negligent in allowing Bobby Baird to operate his tractor while Redinger was working in the area and in failing to warn Redinger. We agree with the court of appeals that Living, Inc. owed a duty to Redinger to exercise reasonable care.

Redinger contends that the court of appeals erred in remanding this cause for a new trial because of jury misconduct. Five jurors testified at a hearing on motion for new trial that during deliberations they discussed liability insurance, Baird’s financial ability to pay his share of the judgment, and how the attorneys would be paid.

To obtain a new trial on the basis of jury misconduct, the complaining party must show: (1) that the misconduct occurred, (2) that it was material, and (3) that, based on the record as a whole, the misconduct probably resulted in harm to them. Flores v. Dosher, 622 S.W.2d 573 (Tex.1981). Tex.R.Civ.P. 327. The complaining party has the burden to prove all three elements before a new trial can be granted. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969).

Living, Inc. has failed to discharge this burden. It is unnecessary to consider the first two elements because we conclude that even if there was material jury misconduct, there was no probable injury to Living, Inc.

To show probable injury, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he “would otherwise have done on one or more issues vital to the judgment.” Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646, 649 (1957). There is no probable injury when “the evidence is such that ... the jury would in all probability have rendered the same verdict that was rendered here, ...” Fountain, 441 S.W.2d at 508 (quoting Lumbermen’s Lloyd’s v. Loper, 153 Tex. 404, 269 S.W.2d 367 (1954)).

The jury in all probability would have rendered the same verdict regardless of whether there was material jury misconduct. The jurors testified that when they reached the damages issue a preliminary vote was taken to determine how many were in agreement as to the amount of damages. Ten jurors voted to award $125,-000 to Redinger and two jurors disagreed. A verdict could have been rendered if the same ten jurors had agreed on all previous issues. Tex.R.Civ.P. 292. However, one of the jurors who agreed with the other nine on the damages issue had disagreed on a previous issue.

After a vote was taken on the damages issue, they discussed various subjects all related to the amount of damages Redinger should be awarded. The two jurors who disagreed with the majority on the damages issue refused to change their vote and never signed the verdict.

However, the juror who agreed with the majority on the damages issue changed his vote on a previous issue not related to damages. Therefore, the same ten members of the jury agreed on answers to all the issues and a verdict was reached. Tex. R.Civ.P. 292. The discussions regarding damages did not cause probable injury because the ten jurors who voted to award Redinger $125,000 were the same jurors who signed the verdict.

Living, Inc. relies on White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947), and argues that a discussion of attorney’s fees alone mandates a reversal based on jury misconduct. However, in White Cabs, this court emphasized there was evidence of probable injury. An initial vote was taken in that case in which five jurors voted to award $20,000, five to award $15,-000 and one to award $17,500. The discussions took place after the initial vote and prior to the final official vote on the damages issue. When the final vote was taken, all the jurors agreed to an award of $16,-000. This court noted that it would be improper to ask the jurors who initially voted for $15,000 whether the discussions influenced their decisions because it would be inquiring into their mental processes. “But we believe that the reasonable conclusion from the testimony of the jurors and from the entire record is that they were probably inclined by that discussion to agree to the answer that was made.” Id. at 202. In contrast, the reasonable conclusion from the jurors’ testimony and the record in this case is that the jurors’ discussions relating to damages did not affect the verdict.

We hold that the court of appeals erred in reversing the trial court judgment and remanding the cause for a new trial because of jury misconduct. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

      . Tex.R.Civ.P. 327 was amended by order of December 5, 1983. This case was litigated prior to the 1983 amendment.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge. TEAGUE, Judge,

license: Public Domain

text:
    Jack G. NEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 63819.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1984.
    Rehearing Denied Feb. 27, 1985.
    Rehearing Denied March 27, 1985.

      Melvyn Carson Bruder, Dallas, for appellant.
    C. Stephen Hughes, Dist. Atty., Sulphur Springs, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for official misconduct under then V.T.C.A. Penal Code, Sec. 39.01(a)(5). Appellant, a lawyer, appeared pro se. After finding appellant guilty, the jury assessed punishment at five years imprisonment and a fine of $5,000.00. Appellant brings twelve grounds of error.

In two grounds of error, appellant challenges the sufficiency of the evidence. The indictment in pertinent part, alleges that appellant, on or about the 27th day of September, 1976 “did then and there, while a public servant, to-wit: District Attorney of the Eighth Judicial District of Texas, with intent to obtain a benefit for himself, intentionally and knowingly take and misapply a thing of value belonging to the State of Texas, to-wit: a Texas State Treasury Warrant Number P088795 in the amount of $7,000.00, issued September 13, 1976, by the State Comptroller of Public Accounts pursuant to Item 14, Judiciary Section — Comptroller’s Department, Senate Bill 52, 64th Legislature, 1975, which came into [appellant’s] custody and possession by virtue of his office and employment.”

The evidence shows that appellant was District Attorney of the Eighth Judicial District from January 2, 1973 until December 31, 1976. On September 13, 1976, the State Comptroller issued the warrant named in the indictment to appellant as payee. The warrant was issued to appellant to pay the salaries of investigators and secretaries for the district attorney’s office.

Appellant’s secretary testified that appellant used one bank account, entitled “Jack G. Neal, Attorney” account, for both his private law practice and the business of the district attorney’s office. The account was held in a Hopkins County bank.

Bank records showed that on September 23, 1976, the account had a balance of $0.97. On September 27th, the State warrant went through the bank. The warrant had been endorsed “Jack G. Neal.” A deposit slip in the amount of $7,000.00 dated 9-27-76 bore the notation “State” and the signature “Jack G. Neal.” Appellant’s secretary testified that she recognized the signature on the slip as appellant’s.

Accordingly, the bank credited the account with $7,000.00 on September 27th. Several checks previously drawn on the account cleared immediately.

From September 27th until December 29th, additional deposits were made. By December 30, 1976, however, the account had a balance of only $1,783.88.

Through the period September 23 to December 31, a total of $2,230.00 was paid out of the account to appellant’s secretary, who worked for him both as a private secretary and an employee of the district attorney’s office. No investigator worked for the office in this period.

The State put in evidence photocopies of a number of cancelled checks that had been drawn on the account, either by appellant or by his secretary at his direction, between September 27 and December 31. Appellant drew many of the checks for cash. The payees of the rest make up a wide variety of individuals and businesses.

Before prosecution was begun, the State sought from appellant an accounting of his use of the $7,000.00, but never received one.

Appellant argues that the only evidence to show the warrant was paid is hearsay. Because hearsay is no evidence, appellant claims there is no evidence to show the warrant was a “thing of value.” Testimony established that such a warrant is evidence of an indebtedness of the State to the payee in the amount named. Appellant obtained credit in the face amount when he endorsed and deposited the warrant in his bank. The evidence was sufficient to show that the warrant was a thing of value.

Appellant argues further that there is no evidence to show that he obtained a benefit for himself from the warrant because the act of depositing the warrant alone does not suffice to establish this element of the offense. Appellant goes on to argue that by endorsing and depositing the warrant, “he did with the warrant what he was supposed to do,” and that the evidence thus fails to show that he mis applied the warrant. Appellant relies on Dickey v. State, 65 Tex.Crim. 374, 144 S.W. 271 (1912).

In Dickey, the Court held that a city secretary had not misapplied city funds by depositing a check into a city account different from the one it was intended for, in an attempt to cover up his prior embezzlement from the account. The Court said that these facts showed no conversion of the check to the secretary’s own use, since the city still had all the money, although in the wrong account.

The instant case is altogether different. The State issued the warrant to appellant to pay the salaries of secretaries and investigators. Appellant deposited the warrant in an account bearing his name and obtained credit with it. He then drew on this credit to pay obligations other than the salaries of secretaries and investigators, and to obtain cash for himself. The evidence showed that appellant used the warrant inconsistently with its purpose so that he might obtain a benefit for himself.

The evidence is sufficient to sustain the conviction. Grounds of error number seven and eight are overruled.

In his sixth ground of error, appellant contends that the trial court erred in denying his motion to quash the indictment because the indictment “fails to state sufficient facts with sufficient clarity to charge an offense.” Appellant argues that the indictment fails to plead facts in support of the allegation that he intended to obtain a benefit for himself. The omitted factual allegation is essential because, appellant claims, “unless the State alleges facts to show a conversion of the property taken or misapplied for the accused’s benefit, no offense is charged.”

Appellant arrives at this conclusion because he believes the omitted allegation “replaces the ‘conversion’ allegations required by Article 95, the predecessor to section 39.01(a)(5).” A comparison of Art. 95 of the Old Penal Code with the new Sec. 39.01(a)(5) shows that “convert” as a form of the prohibited conduct was dropped when the new code was enacted. Under the new code, a public servant commits an offense when, with the necessary intent and culpable mental state, he takes or misapplies any thing of value, etc. We do not find that “convert” made its way back into the statute by way of the specific intent requirement. The indictment tracked the language of the statute in alleging the prohibited conduct. The allegations in the indictment were sufficient to charge the offense. The sixth ground of error is overruled.

In his ninth ground of error, appellant claims the trial court erred in denying his motion to quash the indictment based on Art. 27.03(2), Y.A.C.C.P. Appellant contends that a person not authorized by law was present when the grand jury was deliberating upon the accusation against appellant. At the hearing on the motion the testimony showed that James L. Chapman, who succeeded appellant as District Attorney, appeared before the grand jury and presented evidence of appellant’s offense. He denied that he was in the grand jury’s presence while they deliberated upon the accusation. Two grand jurors testified that Chapman was not in their presence while they deliberated upon the accusation. A third grand juror stated his belief that the grand jury had discussed with Chapman the reasons for or against returning the indictment.

Before trial, Chapman disqualified himself from representing the State any further in the prosecution. The motion to disqualify and its supporting allegations do not appear in the record.

Appellant argues that he has made the factual showing called for in Payne v. State, 502 S.W.2d 812 (Tex.Cr.App.1974), and that Payne mandates reversal of this case. We disagree. Chapman’s subsequent disqualification is irrelevant to the issue of whether a person not authorized by law was present when the grand jury was deliberating. Chapman said he was not present at deliberations, and two grand jurors agreed. If there is conflicting evidence at the pretrial hearing on the motion to set aside the indictment, the trial judge will be the sole judge of the weight and credibility of the witnesses’ testimony. Hamilton v. State, 621 S.W.2d 407 (Tex.Cr.App.1981). The evidence supports the trial court’s denial of the motion to quash based on Art. 27.03(2), V.A.C.C.P. The ninth ground of error is overruled.

In three grounds of error, appellant contends that his challenge to the array made pursuant to Art. 35.07, V.A.C.C.P., should have been sustained. He argues that the district clerk was without authority to excuse prospective jurors who had been summoned for jury service. This violation, he claims, calls for reversal because it is reversible error per se, with no need to prove harm, and because the violation denied him “the representative cross-section of the community which the jury selection statutes promote in furtherance of his constitutional rights regarding a trial by jury.”

The trial court held a hearing on the challenge, at which the district clerk testified. The court overruled the challenge, and appellant asked the judge to attach the jurors whom the clerk had excused and have them brought before the court. The court overruled this request.

The record reflects that the sheriff’s office summoned by mail 250 people for jury service in this cause. Thirty-one of these summonses were never delivered. Forty-five of the jurors summoned returned an exemption card to the clerk’s office claiming a statutory exemption, and were excused, a procedure allowed by Art. 35.04, V.A.C.C.P. Twenty-six people returned an exemption card, but claimed no exemption. The district clerk excused them from service also. Finally, the district clerk or deputy clerk excused thrity-seven people because they “called in or something.”

Only the trial court has authority to excuse prospective jurors who have not filed an exemption card. Art. 35.03, V.A.C. C.P.; Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973). While this Court does not condone the unauthorized excusing of jurors by the district clerk, Stephenson, supra, neither do we find it calls for reversal of the conviction in this case.

In his brief, appellant states that 111 people appeared for jury service. The strike lists, however, show a venire of only 73 names. What happened to the remaining 38 veniremen is unexplained. The voir dire was not recorded. The lists show that both the State and appellant used all of their peremptory strikes. The jury was selected from the first 21 veniremen on the jury list. The record does not show that appellant asked for extra strikes, or that the State be allowed fewer strikes, or that appellant was forced to accept a juror objectionable to him.

Appellant has failed to show that the trial court’s refusal to quash the venire harmed him or impaired in any way appellant’s right to trial by an impartial jury. Absent such proof, no reversible error is shown. Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); Henson v. State, 638 S.W.2d 504 (Tex.App.—Houston [1st dist.] 1981, no pet.); cf. Walker v. State, 645 S.W.2d 294 (Tex.Cr.App.1983).

The first, second and third grounds of error are overruled.

In a related ground of error, appellant contends that his challenge to the array should have been sustained because the jurors were not selected ten days before the first day of a term of court, in violation of ARt. 2096, Tex.R.Civ.Stat. This ground of error is without merit. Art. 2096 clearly provides that additional jurors may be selected as they are needed throughout the term of court. Furthermore, because appellant has again failed to show he was harmed, there is no reversible error. Stalcup v. State, 269 S.W. 1044 (Tex.Cr.App.1925). Appellant’s fourth ground of error is overruled.

Appellant claims a fifth ground of error as follows:

“THE TRIAL COURT ERRED IN ALLOWING (OR REQUIRING) THE DEFENDANT TO GO TO TRIAL WITHOUT A LAWYER OR WITHOUT A VALID WAIVER OF THE RIGHT TO COUNSEL, IN VIOLATION OF THE DEFENDANT’S RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.”

Accordingly, we must test appellant’s claim of no valid waiver against the facts of the record.

Appellant was first indicted for this offense on June 15, 1977. The case went to trial on November 14, 1977 and ended in a mistrial on November 21. Appellant was represented by his retained attorney Palmer. Thereafter the first indictment was quashed, and appellant was reindicted February 3, 1978.

The judge who had presided over the first trial was again administratively assigned to preside over the second. From his office in Denton, the trial judge wrote to appellant in Hopkins County and the specially assigned prosecutor in Dallas County. This letter appears in the record and is dated March 3, 1978. In the letter the judge sets a pretrial hearing for March 22 and trial for April 3 in Sulphur Springs, Hopkins County. He states, “It is my understanding that [appellant] is representing himself pro se and that Edward I. Palmer is no longer involved as [appellant’s] attorney on this case.” The judge states further, “I expect all parties to be present and ready to proceed to trial at that time.”

It appears that after appellant received this letter, he and the trial judge had a telephone conversation, the substance of which was reconstructed — on the first day of trial — as follows:

“THE COURT: Mr. Neal, you are a practicing attorney of the State of Texas, aren’t you?
“MR. NEAL: Oh, yes.
“THE COURT: And you had indicated to the Court previously that you did intend to try this case pro se?
“MR. NEAL: Your Honor, I talked with you on whatever date is set out in this motion and you asked me about that and I said that I knew I would be continuing without Mr. Palmer. That I would but I might — I didn’t use the word definitely I was going to hire Mr. Alexander but you remember that I discussed I probably would hire him to try this case. But, I would proceed on my motion.”

At the pretrial hearing on March 22, appellant submitted a Motion to Allow Pro Se Appearance. The motion states that appellant’s former lawyer Palmer “join[s] herein.” The second numbered paragraph states:

“That Jack G. Neal, defendant, is a duly licensed attorney of the State Bar of Texas with many years of trial experience in both civil and criminal matters; that he is well able to represent himself in this cause, being knowledgable both as to the law and the facts; and further, that he desires to appear pro se in this matter, and that he has so appeared in this cause to this time.”

and concludes:

“WHEREFORE, premises considered, defendant and his counsel of record in an earlier dismissed cause pray the Court to allow the defendant to appear in this matter pro se.”

The motion is signed by appellant as “Defendant” and Palmer as “Movant.”

The trial judge signed an order allowing appellant “to appear pro se in the case at bar” and releasing Palmer of any further responsibility to the court or appellant in the case. The order recites findings of fact in substantially the same language as the second numbered paragraph of the motion, quoted above. At the hearing itself, this exchange took place:

“THE COURT: ...
“Also, there is an order which was signed and entered this morning excusing Mr. Ed I. Palmer from any responsibility as Defense Attorney for Mr. Neal and in effect indicates that Mr. Neal is to act on his own behalf, pro se, in this matter.
“Is that your desire, Mr. Neal?
“MR. NEAL: Yes, sir. Also, I want it in the record. I think it’s already there but Mr. Palmer has not participated in this cause. Never retained in this cause. He participated only in the previous indictment in this cause. Has had absolutely no participation in this matter.”

The trial judge did not quash the indictment at the pretrial hearing. On the morning trial was set to begin, appellant filed his First Motion for Continuance. The motion asserts that “At the conclusion of [the pretrial] hearing it became quite apparent to [appellant] that in order to protect his rights that he obtain the services of an attorney.”

Thereupon, the motion continues, appellant contacted a Dallas lawyer and met with him on March 25. On March 27 the lawyer called the trial judge and asked him to continue appellant’s case beyond the April 3 trial date because he was already set for trial on April 3 in Dallas. The judge refused.

Appellant’s First Motion for Continuance concludes:

“The Defendant can not go to trial without his counsel, William F. Alexander and should the Court force the Defendant to go to trial without his counsel, William F. Alexander, the Defendant will be denied his right of counsel and therefore request this Court to continue this case until such time as William F. Alexander can appear as Defendant’s counsel.”

The trial judge overruled the motion, and appellant tried the case pro se.

On this record, we conclude that appellant made a valid waiver of his right to counsel at the time he sought and obtained the court’s permission to appear pro se. Appellant, joined by his attorney Palmer, stated to the court that he was an experienced, knowledgeable trial lawyer, well able to represent himself, in the case. Appellant does not now deny the truth of this statement. Appellant claims rather that under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and our cases that apply it, the trial court was not allowed to infer that appellant knew and appreciated the dangers of self-representation, or understood the charge against him, from the fact that appellant was an experienced criminal lawyer and a former district attorney. Appellant argues that Faretta bars the trial court from taking appellant’s professional status as a criminal lawyer into account in deciding whether appellant knew what he was doing when he asked to appear pro se, and made that choice with his eyes open.

Under Faretta and our cases, a defendant’s incompetence in the law may not stand in the way of his right to represent himself. On the other hand, competence in the law evidenced by licensure as an attorney and years of experience in criminal litigation, obviously carries with it an awareness of the dangers of self-representation. Language in Faretta itself implies as much:

“... a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, ...”

Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541.

The record supports the conclusion that appellant made a knowing and intelligent waiver of his right to counsel. Moreover, appellant, as an attorney experienced in the trial of criminal cases, obviously was aware of the dangers of self-representation. Faretta, supra; Martin v. State, 630 S.W.2d 952 (Tex.Cr.App.1982).

This ground of error also alleges that the trial court erroneously required appellant to go to trial without a lawyer.

On March 3, the trial court told the parties that trial would begin on April 3. Appellant formally waived his right to counsel in his motion to appear pro se, made and granted on March 22, twelve days before he knew he was to go to trial. Not until March 25 did appellant even contact the lawyer he contends he had told the trial court in early March he might retain. On April 3, the court called the case for trial in Sulphur Springs. Appellant moved the court to continue the trial “until such time as William F. Alexander can appear as Defendant’s counsel,” with no indication of when that time might come, if ever. An accused in a criminal case may not use his constitutional right to counsel so as to manipulate the commencement of his trial to suit his convenience and pleasure. White v. State, 496 S.W.2d 642 (Tex.Cr.App.1973). Under the circumstances of this case, the trial court’s denial of the motion for continuance was not an abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Ex parte Windham, 634 S.W.2d 718 (Tex.Cr.App.1982); see also United States v. Fowler, 605 F.2d 181 (5th Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 785 (1980); United States v. Gates, 557 F.2d 1086 (5th Cir.1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d 763 (1978).

Appellant’s fifth ground of error is overruled.

In three related grounds of error, appellant complains of the trial court’s handling of the jury’s first attempt to reach a verdict on punishment.

The trial court correctly charged the jury on their power to recommend probation. Neither party objected to the charge. Problems arose, however, with the verdict form, which read as follows:

“We, the Jury, having found the Defendant guilty of the offense of official misconduct as charged in the indictment assess his punishment at _
“FOREMAN”
“And, we the Jury, having assessed the punishment of the Defendant at not more than ten years, and having further found that he has never before been convicted of a felony in this or in any other state, we do/we do not recommend that the imposition of sentence be suspended and that he be placed on probation.
“FOREMAN”

The jury, through its foreman, sent a note to the court in this form:

“10 yr sentence — $5,000.00 fine and make restitution 5 yr of the sentence be probated
“I (sic) this the way it should be stated on the verdict form.”

In response to this note, the court simply instructed the jury to follow the instructions in the charge and continue their deliberations.

When the bailiff informed the court that the jury had reached a verdict, the trial judge understandably expected problems. He suggested to counsel that the verdict be brought in so that he might read it, and if there should be a problem with it, the court would discuss that with counsel before bringing the jury back in. The State and appellant both agreed to this plan.

Appellant complains now for the first time that the trial court erred by failing to follow the statutory procedures for' accepting a verdict. See Art. 37.01 et seq., V.A.C.C.P. Specifically, he argues that “[The trial court] should have had counsel, the defendant and the jury in the courtroom when he first read the jury’s first punishment verdict, and then asked the jury if that were their verdict, and then asked if there were any objections to the verdict or requests that the jury be polled.” Appellant waived the error, if any, by assenting to the suggestion of the trial court that the jury not be returned until the court and the parties had read and discussed the verdict.

Appellant’s twelfth ground of error is overruled.

When the trial judge read the verdict, he found that there was indeed a problem. The jury had filled in the top part of the verdict form, quoted above, with “10 years confinement and $5,000.00 fine with recommendation that 5 years of the sentence be probated.” The foreman had signed on the top signature line.

Art. 42.12, Sec. 3a, V.A.C.C.P., provides that “In no case shall probation be recommended by the jury except when the sworn motion and proof shall show, and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this or any other State.” Because the jury’s verdict failed to make the necessary finding, its recommendation of probation was without effect.

The trial court declined to accept this verdict, and instead, attempted to remedy the problem as we set out below. Appellant objected and asked the court to declare a mistrial, or to accept the verdict as “a ten year sentence with five thousand dollar fine, probated for five years.” The trial court had no authority to probate the sentence upon the jury’s recommendation, because as it stood, the verdict did not make the finding required by Art. 42.12, Sec. 3a.

The trial judge prepared a new verdict form in four paragraphs, with blank spaces allowing the jury to assess, successively, a term of years, a term of years and fine, a term of years and probation, and, finally, a term of years and fine, both to be probated. The statutory finding of no prior felony conviction was incorporated into the paragraphs granting probation. The trial judge brought the jury back in and stated that he had received a copy of their verdict, and that there was the possibility that the jury had misunderstood the charge. The judge read and gave the new verdict form to the jury and asked them to retire once more and deliberate.

It is not only within the power, but it is the duty of the trial judge, to reject an informal or insufficient verdict, call the attention of the jury to the informality or insufficiency, and either have the same corrected with their consent, or send them out again to consider of their verdict. Art. 37.10, V.A.C.C.P.; Eads v. State, 598 S.W.2d 304 (Tex.Cr.App.1980); Garrett v. State, 262 S.W.2d 414 (Tex.Cr.App.1953). While the trial judge did not call the jury’s attention to the specific problem in their verdict, neither did appellant object to this oversight, but insisted that the only choice open to the judge—if he was not to accept the verdict—was to declare a mistrial.

The trial court’s decision not to accept the jury’s first verdict was not error. Ground of error number ten is overruled.

Finally, appellant complains that the trial court’s submission of the new verdict form with the remark that “there is a possibility that the jury has misunderstood the Court’s Charge” constituted an improper comment on the issue of punishment. Appellant relies on Hay v. State, 472 S.W.2d 157 (Tex.Cr.App.1971).

In Hay, the jury returned to the courtroom with a verdict at the guilt-innocence phase. The trial court gave the verdict form back to the foreman to sign. When the foreman returned the signed form, the trial judge said “Mr. Foreman, I believe you have done this wrong.” The trial judge then sent the jury back to consider their verdict. They shortly returned with a verdict of guilty.

Reversing the conviction, this Court wrote that the trial court “had indicated its belief to the jury that a verdict of not guilty was ‘wrong.’ The only other verdict the jury could return after considering their verdict would be that of guilty.”

Thus Hay is distinguishable. In Hay the verdict was at guilt-innocence, where the jury’s only alternatives were guilty or not guilty. When the trial court expressed the belief that the one alternative was “wrong,” the inevitable inference in the jury’s mind was that the other was “right.”

In the instant case, by contrast, the verdict was at punishment, where the jury had a range of choice. The trial court did not express any judgment of the propriety of the first, faulty verdict, but remarked instead in terms of the possibility of a misunderstanding.

Hay does not support appellant’s contention. We find no error in the trial court’s action. Ground of error number eleven is overruled.

The judgment is affirmed.

CLINTON, J., concurs in result.

MILLER, J. dissents to disposition of Ground of Error 5.

McCORMICK, J., not participating.

TEAGUE, Judge,

dissenting.

Under the peculiar facts and circumstances that are presented in this case, I am unable to agree with that part of the majority opinion that holds that the State established that appellant affirmatively and knowingly waived his right to have the assistance of counsel at his trial. Therefore, I respectfully dissent.

I first point out that Jack G. Neal, appellant, was originally indicted and tried in another cause for allegedly committing the same offense as the one alleged against him in the indictment in this cause. A mistrial was declared in the first trial, during which appellant was represented by counsel of his choice. However, for reasons not reflected in the record, that attorney’s legal representation was terminated after the first trial had ended. Subsequent to the declaration of the mistrial, appellant was reindicted. I find that it is this rein-dictment that caused appellant to be in the predicament that he found himself in on the morning that he was forced to go to trial without counsel.

It is obvious from the record that one of the concerns the parties, and the trial judge, had at the first trial was whether the indictment in that cause was sufficient to sustain a conviction against the appellant. And I find that this is what caused the mistrial of the first trial, and in turn caused the State to reindict appellant. From the record, there also appears to have been a serious question whether the new indictment would also sustain a conviction against appellant. In light of this background, it is understandable why appellant challenged the validity of the rein-dictment, through a pro se motion to quash, without the assistance of counsel. In sum, as a licensed attorney who appears to have been just as competent as any other licensed attorney of this State to prepare and file a motion to quash the indictment, I find that until the trial judge overruled the motion to quash the indictment, there whs no need on appellant’s part to employ another attorney to represent him at his trial — especially when there might not be a trial if the trial judge sustained his pro se motion to quash. By implicitly holding to the contrary, I find that the majority is oblivious to the real world that exists beyond the summit where we sit.

The record reflects that appellant was not represented at trial by either retained or court appointed counsel. However, pri- or to the commencement of trial, and shortly after the trial judge denied his motion to quash the reindictment, appellant sought to secure the services of William F. Alexander, who was then a private practitioner in Dallas, to represent him for trial purposes. When appellant learned that Alexander was unable to represent him, he filed a pro se motion for continuance. The motion for continuance was in all things denied by the trial judge.

Appellant presents for review twelve grounds of error. I would sustain appellant’s fifth ground of error, namely: “The Trial Court erred in allowing (or requiring) the defendant to go to trial without a lawyer or without a valid waiver of the right to counsel, in violation of the defendant’s rights under the State and Federal Constitutions.”

In pertinent part, the reindictment alleges that appellant,

“while a public servant, to-wit: District Attorney of the Eighth Judicial District of Texas, with intent to obtain a benefit for himself, intentionally and knowingly [took] and [misapplied] a thing of value belonging to the State of Texas, to-wit: a Texas State Treasury Warrant Number P088795 in the amount of $7,000.00, issued September 13, 1976, by the State Comptroller of Public Accounts pursuant to Item 14, Judiciary Section-Comptroller’s Department, Senate Bill 52, 64th Legislature, 1975, which came into the said Jack G. Neal’s custody and possession by virtue of his office and employment.”

This indictment attempted to allege a violation of V.T.C.A., Penal Code, Section 39.-01(a)(5). A jury found appellant guilty and assessed punishment at five years’ confinement in the penitentiary. A $5,000 fine was also assessed against appellant.

What is before this Court does not implicate the factual situation of an accused who requested, but was refused by the trial judge, the right to represent himself at trial. Cf. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The question that is before this Court is whether appellant voluntarily, knowingly and intelligently waived his constitutional right to have the assistance of counsel at his trial. I find he did not, and further find that the State did not establish that he did.

The Constitutional right to counsel at trial is guaranteed by the Sixth Amendment to the Federal Constitution, which is made applicable to the States by virtue of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The following is axiomatic:

“Representation by counsel is crucial to the effectuation of all the other procedural protections which the legal system offers to the defendant. If those protections are to be meaningful and not merely a sham, it is essential, [unless affirmatively waived], that each defendant have legal assistance to realize their intended benefits.” American Bar Association Project on Minimum Standards for Criminal Justice. Providing Defense Services, p. 13 (1967).

In Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), when the Supreme Court made the following statement, it implicitly held that the Sixth Amendment right to counsel may be waived: “The Sixth Amendment withholds from federal, [and now State courts], in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” [My Emphasis].

If an accused is tried without counsel, and the prosecution claims on appeal that the accused waived counsel, it has a heavy burden to demonstrate on the record that a voluntary, intelligent, and knowing waiver of the right to counsel actually occurred. Johnson v. Zerbst, supra; Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977). Thus, before it can be stated that appellant affirmatively waived his right to assistance of counsel, the record must clearly reflect that he did so voluntarily, intentionally, and knowingly, Johnson v. Zerbst, supra; Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970), and such will not be presumed from a silent record, Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Furthermore, courts will indulge every reasonable presumption against the validity of such a waiver. Johnson v. Zerbst, supra; Ex parte Bird, supra.

I have carefully reviewed the record of appeal for evidence that appellant expressly waived his right to counsel, but find nothing therein that reflects or indicates that this ever occurred. It is necessary therefore to make the determination whether appellant, by acts, words, or deeds, made manifest an intent to waive counsel.

The State makes a two-part argument in its brief to support its contention that appellant waived his right to the assistance of counsel. It first argues that “a defendant may not manipulate his right to counsel to thwart a trial,” thus implying that appellant’s motion for a continuance was merely a tool that he used in order to prevent the trial from commencing. The State next appears to argue that because appellant was a former district attorney, “of much experience,” this was sufficient to establish waiver on his part to the right to counsel.

In making the latter argument, I believe the State not only overlooks the age old adage, that a lawyer who represents himself at trial has a fool for a client, but also overlooks the fact that when it comes to the right to have counsel at one’s trial, the Constitutional guarantee of the right to counsel does not make any kind of distinction between accused persons. Constitutionally, all accused persons are entitled to have the assistance of counsel at trial, unless such is affirmatively waived. This is true regardless of what the accused’s former status in our society might have been. I believe that both the Federal and State Constitutions protect absolutely the right of an accused to be represented at trial in the fullest measure, either by counsel of choice or by court appointed counsel, if indigent, unless there is an affirmative waiver of the right to counsel. Thus, the fact appellant in the past might have been a criminal district attorney, “with much experience,” is irrelevant and immaterial when it comes to deciding the question, whether, as an accused, he affirmatively waived his right to counsel at his trial.

A corollary to the Constitutional right to counsel is that the accused is entitled to counsel of his own choice and he should be afforded a reasonable period of time, as well as a fair opportunity, to secure such counsel. Garrett v. State, 94 Tex.Cr.R. 556, 252 S.W. 527 (Tex.Cr.App.1923); Henderson v. State, 137 Tex.Cr.R. 18, 127 S.W.2d 902, 127 S.W.2d 903 (1939). This Court has held a trial court’s refusal to afford the accused such reasonable time and fair opportunity to secure counsel of his choice may constitute reversible error. Stroebel v. State, 366 S.W.2d 575 (Tex.Cr.App.1963).

Of course, the right to have reasonable time and fair opportunity to obtain counsel of one’s choice must be exercised by using due diligence, which, if it is claimed on appeal by the State that the accused did not exercise due diligence, will be determined from the facts presented.

The State’s main argument that appellant, by his actions prior to trial, affirmatively waived counsel for trial purposes appears to rest upon the course of events that occurred in the trial court prior to the scheduled date of trial, which was April 3rd. As previously pointed out, the State also argues that appellant’s actions in seeking a continuance of his trial on April 3rd amounted to an attempt to “manipulate the right to counsel to thwart the trial.” In light of what the State contends, I find it necessary to review the events that occurred prior to and on the date of April 3, 1978, when trial commenced in this cause. Therefore, I will briefly summarize the facts that relate to or might have a bearing on appellant’s contention that he did not affirmatively waive his Constitutional right to have counsel at his trial to assist him, and the State’s response that appellant’s actions amounted to nothing more than an attempt to “manipulate the trial.”

The record reflects that on March 3, 1978, the trial judge, who was specially assigned to hear this cause, advised both the special prosecutor and appellant of the pre-trial and trial dates he had selected for the case. This was done by mail. He also stated in his letter that it was his understanding that an attorney who had previously represented appellant in the former cause, at which appellant was tried but in which a mistrial was declared, see supra, was no longer representing appellant. The trial judge also stated the following in his letter: “It is my understanding that Mr. Neal, [appellant], is representing himself pro se ...”

Pursuant to the letter of the trial judge, that was dated March 3rd, a hearing on the pre-trial motions was set for and occurred on March 22, 1978. The record reflects that on that date, but prior to the commencement of the hearing, appellant filed an instrument entitled “Motion To Allow Pro Se Appearance.” The record does not reflect or indicate just what caused appellant to file this motion. Nevertheless, the trial judge granted the motion. A reading of the motion does not reflect any express statement that appellant would represent himself at his trial, which was scheduled to commence on April 3rd. On the other hand, there is also no express statement that he would not represent himself, pro se, at his trial. The trial court’s order, granting the motion, also does not expressly refer to the scheduled trial. If nothing else was present in the record, I believe that the motion itself would encompass the trial. See, however, post.

The pre-trial motions in the record, which relate to the March 22nd hearing, consisted of a motion to quash the reindictment that was filed on February 3rd, and a motion for discovery, which were prepared and filed by appellant himself. The hearing that was held on March 22nd primarily concerned appellant’s pre-trial motion to quash the indictment, which was denied by the trial judge after the hearing.

I next move to the date of the trial, April 3rd. By the uncontradicted statements of appellant, which were made in reference to his motion for continuance, appellant appears to have made it clear to the trial judge, prior to the hearing that was held on March 22nd, that in the event the trial judge denied the motion to quash the indictment he had filed, he had no intention of thereafter representing himself pro se.

Appellant stated into the record that after he had received the trial judge’s letter of March 3rd, he spoke by telephone with the trial judge, and advised the judge that he was going to represent himself, pro se, only through the March 22nd pre-trial hearing, if his motion to quash the indictment was not granted. He also stated into the record that in the event the motion to quash was denied he would then employ William F. Alexander of Dallas to represent him for trial purposes. Appellant’s statements were neither questioned, refuted, contradicted, nor disputed by anyone, including the trial judge.

In both Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975), and Canada v. State, 660 S.W.2d 528 (Tex.Cr.App.1983), this Court held that uncontroverted factual statements of counsel, though unsworn, may be considered by this Court for purposes of the decision making process.

Appellant stated into the record that on March 25th, he contacted Alexander. He also stated that on March 27th, Alexander had a telephone conversation with the trial judge, at which time Alexander made a plea to the judge to continue appellant’s trial to a later date, because of a conflict Alexander then had in trial settings. The judge rejected the plea that Alexander had made. Appellant thereafter, pro se, prepared and filed a sworn first motion for continuance, which was denied by the trial judge on April 3rd.

I believe that on April 3rd, after appellant appeared in court without counsel, and sought a continuance to obtain counsel of his choice, the trial judge should have been particularly careful to safeguard appellant’s Constitutional right to have the assistance of counsel for trial purposes. I further believe that before rejecting appellant’s uncontradicted explanation why he did not then have counsel, and denying his motion for continuance, and putting appellant to trial without counsel, the trial judge should have at least questioned appellant if he had any doubts with respect to the truth or validity of the statements appellant had made as to why he was then present without counsel. However, the trial judge did not take issue with any of the oral statements appellant made in open court, or those contained in the sworn motion for continuance.

Of course, a motion for continuance that is made by the accused in order to obtain the services of an attorney is addressed to the discretion of the trial court. However, that discretion must be exercised in such a manner that it does not infringe upon any constitutional rights of the accused, such as the right to counsel. Where the trial court in a criminal case goes clearly beyond the proper bounds of discretion in denying an application for a continuance, such as denying a motion for continuance that is made to obtain the services of counsel, without any rational basis, and thereby prevents the accused from having the assistance of counsel at his trial, such has been held to cause the resulting conviction to be void. See Zasada v. State, 19 N.J.Super. 589, 89 A.2d 45 (Appellate Division, 1952).

Notwithstanding that an accused is entitled to counsel of his own choice, and should be afforded reasonable time and fair opportunity to secure such counsel, he must use diligence, and may not use a motion for continuance to prevent the trial from occurring or justice from being administered. Thus, the mere fact that the accused appears in court without counsel, and requests a continuance until he can obtain an attorney of his choice, is insufficient, without more, to require the motion for continuance to be automatically granted. E.g., Stanfield v. State, 212 S.W.2d 516, 520 (1948).

In this instance, however, I find that appellant established that he diligently attempted to carry into execution what he had previously informed the trial judge over the telephone what he was going to do in the event his motion to quash the indictment was denied or overruled, and that was to employ Alexander. However, he was unable to obtain Alexander’s legal services because Alexander had a previously scheduled trial commitment for April 3rd, which was the date appellant’s trial was scheduled to commence. Thus, Alexander was in no position to represent appellant. Alexander himself contacted the trial judge, to no avail. I find that appellant filed his motion for continuance at the next and most opportune time.

It has long been the law of this State that an accused should be afforded a fair opportunity and a reasonable period of time in which to employ counsel of his choice, Henderson v. State, 137 Tex.Cr.R. 18, 127 S.W.2d 902, 127 S.W.2d 903 (1939), and failure to afford the accused such opportunity and reasonable time in which to obtain counsel of his choice may constitute reversible error. Stroebel v. State, supra. Compare Ex parte Clear, 573 S.W.2d 224 (Tex.Cr.App.1978), and Ex parte Masching, 41 Cal.2d 530, 261 P.2d 251 (1953).

This, however, does not mean that an accused’s right to select his own counsel can be insisted upon so as to obstruct the orderly and fair administration of justice, because such must never occur. Brown v. State, 464 S.W.2d 134 (Tex.Cr.App.1971). Thus, if a defendant does not give the trial judge timely notice that counsel of his choice will not be able to attend the trial, the trial judge may, in the exercise of his sound discretion, do what is reasonably necessary to meet the situation, provided that whatever he does is done in accordance with the law. United States v. Bentvena, 319 F.2d 916 (2nd Cir.1963).

I quickly point out that in this instance appellant did not delay until the day of trial to inform the trial judge of the scheduling conflict Alexander, his counsel of choice, had. The uncontroverted statements of appellant reflect that within a reasonable period of time after the trial judge had denied his motion to quash the indictment, appellant did what he had earlier told the trial judge he was going to do, and that was to contact and employ Alexander for trial purposes. Unfortunately, Alexander was unable to accommodate appellant because had he undertaken to represent appellant this would have created a conflict with another trial setting that Alexander then had. Alexander himself telephoned the trial judge and related to the judge his scheduling problem, but to no avail. I find that appellant did not show a lack of diligence in attempting to secure counsel of his choice within a reasonable period of time after the pre-trial hearing was held on March 22nd, and before April 3rd.

I also observe that there is not anything in the record which reflects or indicates that had the trial judge.granted appellant’s sworn first motion for continuance, and continued the cause for a reasonable period of time in order for appellant to obtain the legal services of Alexander or some other attorney, such would have caused a disruption of the court’s business or affected the administration of justice. I further observe that the case was neither complicated, involved, or intricate; thus, effective counsel would not have needed a great deal of time to prepare for trial.

The State did not establish that appellant affirmatively waived his right to have the assistance of counsel at his trial. Appellant’s fifth ground of error should be sustained. The majority, however, disagrees.

The main thing that I find wrong with the majority opinion is that it has misplaced the burden of proof that must be met before it can be said that the appellant has voluntarily, intelligently, and knowingly waived his right to counsel at trial. As previously pointed out, the cases hold that this is a burden that the State, and not the defendant, has. The single argument that the majority uses in order to deny appellant relief is its conclusion that appellant was “manipulating the commencement of his trial to suit his convenience and pleasure,” when he filed his motion for continuance. In light of what is before this Court, I strongly disagree with this conclusion because it is simply not so; appellant did not try to “manipulate” the commencement of the trial by filing the motion for continuance; instead, he was trying to show the trial judge that he did not want to be tried without counsel.

Probably the greatest weakness of the majority opinion actually lies in the one single authority it cites in support of its conclusion; White v. State, 496 S.W.2d 642 (Tex.Cr.App.1973). However, if one will take the time to read White v. State, supra, he will easily see that it does not support the majority’s conclusion that appellant attempted to “manipulate” the trial through the filing of his motion for continuance. In White, the defendant did not claim that she was forced to trial without counsel, as here; instead, the defendant in White v. State, supra, claimed on appeal that she needed a continuance because her trial counsel had not had enough time to prepare for the trial. Under the facts of that case, this Court correctly held that the trial court did not err in denying the motion for continuance.

For all of the above reasons, the majority errs in not sustaining appellant’s fifth ground of error. I respectfully dissent.

      . At the time of the offense, the statute read as follows:
      "Section 39.01. Official Misconduct.
      "(a) A public servant commits an offense if, with intent to obtain a benefit for himself or to harm another, he intentionally or knowingly:,

      “(5) takes or misapplies any thing of value belonging to the government that may have come into his custody or possession by virtue of his employment, or secretes it with intent to take or misapply it, or pays or delivers it to any person knowing that such person is not entitled to receive it.”

      . "Art. 35.07. Challenge to the Array.
      "Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or an acquittal. All such challenges must be in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence without delay whether or not the challenge shall be sustained.”


author: ODOM, Judge. ONION, Presiding Judge.

text:
    Robert Joe CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 014-84.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1984.
    On Rehearing April 3, 1985.

      David R. Weiner (court appointed), San Antonio, for appellant.
    Bill M. White, Former Dist. Atty., and Sam D. Millsap, Jr., Dist. Atty., Charles Estee, Richard H. Fox, Monica Donahue and Miguel Martinez, Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of arson. The Court of Appeals reversed the conviction upon finding the trial court erroneously overruled appellant’s motion to quash. Castillo v. State (Court of Appeals-San Antonio). The State brought petition for review by this Court on two issues: (1) whether the Court of Appeals correctly decided the ground of error, and (2) whether the Court of Appeals had jurisdiction of the case. Review was granted on both issues.

We first address the jurisdictional issue. The State argues the Court of Appeals lacked jurisdiction because the notice of appeal was late. The record reflects that appellant was sentenced on August 20, 1981. At that time Art. 44.08, V.A.C.C.P., required notice of appeal be given within 10 days of sentencing. The record reflects that appellant was so informed in open court at the time of sentencing and that he informed the court, through counsel, that he did not want to appeal. The record before this Court does not reflect that notice of appeal was ever given. The State’s brief recites that the record reflects oral notice of appeal was given on September 4, 1981, but the record does not contain the page referred to by the State. Appellant apparently agrees that notice of appeal was late, because he argues the Court of Appeals impliedly found good cause for late notice of appeal.

We will address appellant’s argument of good cause in a moment, but we first find there was no timely notice of appeal, first because the record reflects no notice of appeal whatsoever, and alternatively, assuming arguendo that notice of appeal was given on September 4, such notice of appeal would have been 15 days after sentencing, five days after expiration of the time allowed for notice of appeal in effect at the time of sentencing and at the time of expiration of the permitted period for giving notice of appeal.

Appellant argues the Court of Appeals found good cause for late notice of appeal under Art. 44.08(e), V.A.C.C.P. That provision, however, became effective September 1,1981, which was after the time for giving notice of appeal in this case had expired. Specifically, Art. 44.08(e), provides:

“For good cause shown, the court of appeals may permit the giving of notice of appeal after the expiration of such 15 days.”

This amendment was part of the act giving criminal appellate jurisdiction to the courts of appeals. Acts 1981, 67th Leg., ch. 291. Also, as part of that amendment, the time for giving notice of appeal was extended to 15 days, measured from sentencing or overruling of motion for new trial. Art. 44.08(b) and (c), supra. The amendment did not revive a right to appeal that had already expired. To hold otherwise would mean the courts of appeals would have the authority at this date to find good cause for late notice of appeal in any final conviction no matter how long ago the conviction became final. We do not believe the legislature intended such a result. We hold the authority granted by Art. 44.08(e), supra, may be exercised only in those cases in which “the expiration of such 15 days,” as referred to in the statute, was an event occurring on or after the effective date of the act, i.e., September 1, 1981. See Barnes v. State, 644 S.W.2d 1 (Tex.Cr.App.1982); McCarty v. State, 557 S.W.2d 295 (Tex.Cr.App.1977); Ex parte Young, 517 S.W.2d 288 (Tex.Cr.App.1974). Accordingly, the Court of Appeals was without authority to act under Art. 44.08(e) in this case and we will not presume that it did so. Appellant’s argument is without merit.

Timely notice of appeal is jurisdictional. E.g., Pittman v. State, 546 S.W.2d 623 (Tex.Cr.App.1977); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Newton v. State, 482 S.W.2d 215 (Tex.Cr.App.1972). The record does not reflect timely notice of appeal. The appeal therefore must be dismissed.

The judgment of the Court of Appeals is reversed and the cause remanded with directions to dismiss the appeal.

OPINION ON REHEARING

ONION, Presiding Judge.

Appellant’s plea of guilty before the court to the second count of the indictment charging arson resulted in conviction. Punishment, in light of allegation and proof of a prior felony conviction and a plea bargain, was assessed by the court at 20 years’ imprisonment.

On appeal the appellant urged the “trial court erred in overruling appellant’s motion to quash the indictment on the failure to allege the manner and means by which the offense was committed.” The San Antonio Court of Appeals concluded it had jurisdiction of the appeal of the ruling on the pre-trial motion to quash under the 1977 amendment to Article 44.02, V.A.C.C.P. A panel of the court reversed the conviction, finding the trial court erred in overruling the motion to quash as the indictment failed to give adequate notice of charges against the appellant by not stating the manner in which the alleged fire had been set. The panel wrote:

“We also note that the term ‘starting a fire’ is nowhere defined in the Texas Penal Code. The omission from the indictment in the instant case of the facts by which the prosecution would establish arson renders the instrument subject to a timely motion to quash. We therefore reverse the trial court and order the prosecution dismissed.”

The court en banc entertained State’s motion for rehearing and overruled the same without written opinion. Associate Justice Cantu dissented with written opinion, arguing the manner and means by which the fire started was essentially evi-dentiary in nature and need not be pleaded in the indictment. Chief Justice Cadena and Justice Dial joined in the dissent. See Castillo v. State (Tex.App. [4th Dist.] 1983, No. 4-81-00261-CR).

. We granted the State’s petition for discretionary review to determine (1) whether the Court of Appeals correctly decided appellant’s sole ground of error and (2) whether the Court of Appeals had jurisdiction by virtue of a notice of appeal.

On original submission this Court found timely notice of appeal had not been given, that such timely notice was jurisdictional and the appeal had to be dismissed. The judgment of the Court of Appeals was reversed.

On the Court’s own motion for rehearing we have concluded, although not without difficulty, that belated notice of appeal for good cause was implicitly approved by the Court of Appeals. See Article 44.08(e), V.A.C.C.P. We now consider that court’s holding the trial court erred in overruling the motion to quash the indictment.

Appellant was charged under V.T.C.A., Penal Code, § 28.02, as amended in 1979 (Acts 1979, 66th Leg., p. 1216, ch. 688, § 2, eff. Sept. 1, 1979).

Said § 28.02 reads in pertinent part:

“(a) A person commits an offense if he starts a fire or causes an explosion with intent to destroy or damage any building, habitation, or vehicle:
“(1) knowing that it is within the limits of an incorporated city or town;
⅜⅛(2) * * *
“(3) * * *
“(4) knowing that it is located on property belonging to another;
«(5) * * *
“(6) * * *
“(b) It is a defense to prosecution under Subsection (a)(1) of this section that prior to starting the fire or causing the explosion, the actor obtained a permit or other written authorization granted in accordance with a city ordinance, if any, regulating fires and explosions.”

Omitting the formal parts, the indictment alleged in the first count that

“on or about the 3rd day of January, A.D., 1981, Robert Joe Castillo did then and there knowingly start a fire with intent to destroy or damage a habitation knowing that it was located on property belonging to another, namely: Alicia Mae Rodriquez; ....”

The second count alleged in part:

“that on or about the 3rd day of January ... Robert Joe Castillo did then and there knowingly start a fire with intent to destroy or damage a habitation knowing that it was within the City of San Antonio, Bexar County, Texas; ....”

The third paragraph (not a count) alleged a prior 1973 murder conviction for enhancement of punishment.

Appellant filed a pre-trial motion to quash the indictment alleging, inter alia,

“IV
“Because the same fails to set out or inform the Defendant how, in what manner and means and ways the alleged offense was committed in sufficient detail in order that he may prepare a defense or defend himself or enter a plea and hence, the same violates the due process provisions of the United States and Texas Constitution and Bill of Rights, the Texas Penal Code and Code of Criminal Procedure.
U * * *
“VII
“Because the same fails to show or allege how the allege (sic) offense was committed and hence, deprives the defendant of proper notice.”

The motion did not further elaborate on its contentions.

Over two months later the court entertained all pre-trial motions. The motion to quash was summarily overruled. The appellant offered no argument nor cited any authorities.

Thereafter a plea bargain was entered into by the parties. The State abandoned the first count of the indictment, and the appellant entered a guilty plea to the second count and a plea of “true” to the third paragraph alleging a prior felony conviction for enhancement of punishment.

During the admonishment the court inquired:

“Mr. Adams (Defense Counsel), are you satisfied that Mr. Castillo has a factual as well as a rational understanding of the charges against him?
“MR. ADAMS: Yes, Your Honor.”

On appeal different counsel for the appellant (appointed by the trial court) urged the motion to quash had been improperly overruled. He relied upon the quoted paragraphs IV and VII in the motion to quash and narrowed the contention to the fact the indictment did not allege the manner and means of starting the fire relying upon Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979); Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1983), etc.

Article I, § 10 of the Texas Constitution, states:

“[In all criminal prosecutions the accused] shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof.”

The Legislature has also sought to provide guidance as to the adequacy of notice through the enactment of Chapter 21 of the Code of Criminal Procedure. Article 21.-02(7) provides:

“7. The offense must be set forth in plain and intelligible words.”

Article 21.03, V.A.C.C.P., states:

“Everything should be stated in an indictment which is necessary to be proved.”

Article 21.04, V.A.C.C.P., states:

“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” See also Article 21.11, V.A.C.C.P.

Appellant’s contentions were timely raised by motion to quash or set aside the indictment prior to trial, and therefore the fundamental constitutional protections of adequate notice and due process are involved. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981). These protections require careful consideration from the perspective of the accused. Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Cruise v. State, 587 S.W.2d 403, 404 (Tex.Cr.App.1979); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977).

When considering a motion to quash the indictment, it is not sufficient to say the defendant knew with what offense he was charged; rather, the question presented is whether the face of the indictment or charging instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Haecker v. State, supra; McManus v. State, supra; Jeffers v. State, supra; Marrs v. State, 647 S.W.2d 286, 289 (Tex.Cr.App.1983); Lewis v. State, 659 S.W.2d 429, 431 (Tex.Cr.App.1983).

The State in the instant case alleged the offense in the second count of the indictment in the terms of the statute. Ordinarily, this is legally sufficient. Burney v. State, 347 S.W.2d 723 (Tex.Cr.App.1961); Bass v. State, 427 S.W.2d 624 (Tex.Cr.App.1968); Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973); Johnson v. State, 541 S.W.2d 619 (Tex.Cr.App.1976); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978); Few v. State, 588 S.W.2d 578 (Tex.Cr.App.1979); Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1980); Marrs v. State, supra.

In Haecker v. State, supra, where an information rather than an indictment was involved, this Court stated:

“In many cases an information will be considered sufficient if it follows the language of the statute. However, this rule applies only where the information is framed under a statute which defines the act constituting the offense in a manner that will inform the accused of the nature of the charge. In other words, if the language of the statute is itself completely descriptive of the offense, and information is sufficient if it follows the statutory language. Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973); Bush v. State, 97 Tex.Cr.R. 219, 260 S.W. 574 (1923). By the same test, if the language of the statute is not completely descriptive then merely tracking the statutory language would be insufficient.”

It has been said that facts or information not necessary to provide notice but rather essentially evidentiary need not be alleged in an indictment because the indictment need not plead the evidence relied upon by the State. Phillips v. State, 597 S.W.2d 929, 935 (Tex.Cr.App.1980).

In Thomas v. State, 621 S.W.2d 158, 161 (Tex.Cr.App.1981) (Opinion on State’s Motion for Rehearing), it was written:

“The general rule is that a motion to quash will be allow'ed if the facts sought are essential to giving notice. However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). Moreover, when a term is defined in the statutes, it need not be further alleged in the indictment. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981).”

In the instant case the term “start a fire” as used in the second count of the indictment is not statutorily defined. Thus we are not dealing with a situation as in Thomas v. State, supra, where the terms were statutorily defined and did not go to an act or omission of the accused and the court held the motion to quash was properly denied. Nor is the instant case like Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1980), where the indictment failed to allege which of the three statutory methods of delivery of heroin was relied upon and the court held the motion to quash the indictment was improperly overruled. See also Ellis v. State, 613 S.W.2d 741 (Tex.Cr.App.1981). Cf. Coleman v. State, 643 S.W.2d 124 (Tex.Cr.App.1982); McBrayer v. State, 642 S.W.2d 504 (Tex.Cr.App.1982); and Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1981), where in each theft case the court held it was error to overrule a motion to quash the indictment for failure to specify which of the statutorily defined types of appropriation to which the accused resorted. And the instant case is not like Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977), where it was held error for the trial court to have overruled the motion to quash. There the defendant was charged with driving his motor vehicle while his license was suspended under Article 687b, § 24, Y.A.C.S. Section 24 provided for five different ways in which the license could have been suspended and by motion to quash the defendant sought a specific allegation as to which subsection of § 24 the State would rely on.

In Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978), the defendant was charged with “knowingly torturpng] ... a dog.” In his motion to quash the information, the defendant contended that “torture” did not give adequate notice. Even though the term “torture” was statutorily defined in the civil statutes (Article 180, V.A.C.S.), this Court concluded that the language of the statute was not completely descriptive of the act constituting the offense so as to inform the defendant of the nature of the charge.

The instant case is more like Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979). There this Court held that the term “cause bodily injury” in a robbery indictment did not, upon a timely motion to quash, give precise notice of the offense with which Cruise was charged, noting that the term “cause bodily injury” not statutorily defined was susceptible to an almost endless list of possible meanings, and that it would have been impossible for the State to prove the element without also showing the manner in which it was done.

Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981), involved convictions for gambling promotion. V.T.C.A., Penal Code, § 47.03(a)(2). There Jeffers by pre-trial motions to quash specifically urged the indictments failed to allege facte sufficient to give him notice of the manner and means whereby he received a bet and offer to bet, and thus did not apprise him of the charges with such particularity so as to enable him to prepare a defense.

In Jeffers this Court stated:

“The essence of each of the eight offenses, as alleged in the indictments, was appellant’s act in receiving a bet and offer to bet by a named individual. The indictments fail to specify the manner by which appellant received the bets and offers to bet. Such items could have been received a number of ways including: in person, through a third party, over the telephone, at a drop or through the mail. We fail to see in what manner the State sought to prove beyond a reasonable doubt that appellant received bets and offers to bet by an individual, without adducing facts which described how the receipt took place. Appellant’s motion to quash entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. We conclude the trial court erred in overruling appellant’s motion to quash. Under such circumstances the indictments will be dismissed. Brasfield v. State, Tex.Cr.App., 600 S.W.2d 288.” (Emphasis supplied.)

It is clear that it was necessary for the prosecution to prove the manner in which the appellant did “start a fire” in order to meet its burden of proof. While allegation of manner and means of “starting a fire” under Y.T.C.A., Penal Code, § 28.02, is not a fundamental requisite of charging the offense for purposes of invoking the trial court’s jurisdiction, appellant’s motion to quash entitled him to the allegations of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. Article 27.09, V.A.C.C.P.; American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Cruise v. State, supra.

The Court of Appeals was right. The trial court erred in overruling the motion to quash the indictment. Its judgment should be affirmed.

We make these further observations. The indictment simply alleged “habitation.” It does not allege the ownership of the structure or vehicle constituting the habitation nor its address or location other than generally within the city limits of San Antonio. While the indictment tracked the statute (V.T.C.A., Penal Code, § 28.02), it is difficult to see how such allegation put the appellant on notice so that he could prepare his defense, or to plead any conviction in bar of further prosecution for the same offense. Although appellant narrowed his contention on appeal, it appears that his motion to quash was broad enough to encompass this deficiency in the indictment.

Still further, the State now candidly admits in this Court that the indictment omitted the word “incorporated” in the second count upon which conviction was had. The second count alleged “knowing that it was within the City of San Antonio, Bexar County, Texas” in attempted compliance with the statutory language “knowing that it is within the limits of an incorporated city or town.” (Emphasis supplied.) The State argues the trial court could take judicial notice of the fact San Antonio is an incorporated city. The question does not involve proof so much as necessary allegations in the indictment. In view of our disposition of this cause, we need not decide whether fundamental error is presented by this omission.

The judgment of the Court of Appeals is affirmed. The prosecution is ordered dismissed.

WHITE, J., not participating.

      . Our original opinion on State’s petition for discretionary review is hereby withdrawn.

      . In Queen v. State, 662 S.W.2d 338 (Tex.Cr.App.1983), it was held that the indictment alleging that the defendant delivered marihuana was sufficient to put the defendant on notice as to what type of delivery the State was relying upon, since it clearly alleged that the defendant delivered marihuana by utilizing both actual and constructive transfer.

      . V.T.C.A., Penal Code, § 30.01 (Definitions), provides in part:
      "In this chapter:
      "(1) ‘Habitation’ means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
      "(A) each separately secured or occupied portion of the structure or vehicle; and
      “(B) each structure appurtenant to or connected with the structure or vehicle...."