author: THOMAS G. DAVIS, Judge. CLINTON, Judge,

text:
    Gentry Lee HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 109-84.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1984.
    Bob D. Odom, court appointed, Temple, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

After a jury found appellant guilty of theft from the person of another the trial court found the allegation in an enhancement paragraph true and assessed punishment at fifteen years. The Ninth Court of Appeals (Beaumont) reversed the conviction. Harris v. State (No. 09-83-094 CR, delivered December 14, 1983). We granted the State’s petition for discretionary review to examine the Court of Appeals’ holding that the prosecutor’s argument improperly commented on the appellant’s failure to testify, in violation of Art. 38.08, V.A.C. C.P.

The evidence showed that appellant stole several dollars from the trouser pocket of a 79-year-old man. Shortly afterward, appellant was arrested. The trial court permitted the arresting officer to testify, over objection, that appellant stated at the scene of the arrest that he would give the man his money back. The officer also testified that later, at the police station, appellant stated twice more that he would give the money back.

During her opening argument to the jury at the guilt stage, the prosecutor spoke as follows:

“MRS. OTTO [Prosecutor]: ...
“Now, I have testimony of the officer who came in yesterday. Alright, and I ask you to recall what he said when he stopped the suspect and informed him of the stop. Regardless of what had happened, I ask you to remember the words which this man told the officer when the officer stopped him as a possible suspect. He was warned of his rights and on his own volition he voluntarily said, not once but twice, I’ll give the old man his money back. Why would he have said that statement unless he had done it? I ask you all to consider not once but twice he said this statement. He said, I’ll give the old man his money back, why would he have said that statement? I ask you also to recall the testimony of this man — not the testimony but the words that came out of this man’s own—
“MR. ODOM [Defense counsel]: Your Honor, I’m going to object to the comment on the failure of the witness — of the defendant to take the stand.
“THE COURT: Sustain the objection. “MR. ODOM: We’d request an instruction to disregard and move for a mistrial. “THE COURT: Ladies and gentlemen of the jury, you will disregard the prosecutor’s statement and her argument about the testimony of this man and not consider it for any purpose.
“MR. ODOM: We move for mistrial, Your Honor.
“THE COURT: Overruled.
“MRS. OTTO: I ask you to consider the testimony of the police officer who stated that the defendant told him in the booking room, voluntarily, without any question on the part of the police officer, he voluntarily again said, I’ll give the old man his money back .... ”

Appellant’s trial counsel made a bill of exceptions by testifying that when the prosecutor asked the jury “to remember the testimony of this man,” she was pointing at appellant. The prosecutor then took the stand and testified that she had “inadvertently used the word [testimony],” and had “in the same breath ... corrected [her] statement as to the word testimony.”

Art. 38.08, Y.A.C.C.P., provides as follows:

“Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

Because appellant did not testify at his trial, the statute prohibits allusion to or comment on that fact by counsel. The general test for determining whether counsel’s words violate the statute is often expressed as follows:

“The language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused’s failure to testify must be a necessary one. It is not sufficient that language might be construed as an implied or indirect allusion thereto.”

Nickens v. State, 604 S.W.2d 101 (Tex.Cr.App.1980) (opinion on State’s motion for rehearing); Lewis v. State, 155 Tex.Cr.R. 514, 236 S.W.2d 812 (1951).

The Court of Appeals in the instant case set out the test and then reasoned as follows:

“In the case at bar, the prosecutor’s action in pointing to the accused is a strong factor in determining whether the jury would naturally take the argument as a comment on the failure of [appellant] to testify. Hicks v. State, 525 S.W.2d 177, 180 (Tex.Cr.App.1975). This action by the prosecutor with her request for the jury to consider appellant’s testimony when there was none, we think, was error and violates [Article 38.08, supra].”

The court went on to find that the trial court’s instruction to the jury did not cure the error, and reversed the conviction.

The Hicks decision has no application to the instant case. In Hicks, the prosecutor stated in his argument, “But there is somebody that we haven’t heard from in this case. And I think you all know who it is.” At that point defense counsel objected, and said:

“... let the record reflect that he stood right behind the defendant, raised his voice, at that time, and ... said, ‘We haven’t heard from somebody in this court.’ At that time, [the prosecutor] looked down at the defendant in such that by his actions and inferences and comments made, was a comment on not testifying by the defendant.”

In Hicks, the prosecutor’s words were plainly a direct reference to someone’s failure to testify. The issue came down to whether this Court, in deciding whether the reference was to defendant, could take into account defense counsel’s description of the prosecutor’s physical actions. The Court found that it could take the description into account, and decided that the prosecutor’s argument and physical actions constituted a clear violation of Art. 38.08.

In the instant case, by contrast, it is plain and undisputed that the prosecutor was referring to appellant throughout the portion of the argument we have quoted above. The prosecutor’s action in pointing at appellant is not a “strong factor” in deciding the issue in this case; that is, whether the phrasing of the argument alluded to or commented on appellant’s failure to testify.

The Court of Appeals characterized the phrase at issue as a “request for the jury to consider appellant’s testimony when there was none.” Yet the context shows that the prosecutor was reminding the jury of appellant’s statements to the arresting officer to the effect that appellant would give the man his money back. When she asked the jury to recall “the testimony of this man,” the prosecutor caught herself in mid-sentence and said, “not the testimony but the words, ...” Did the use of the word “testimony” in this context constitute an allusion to or comment on appellant’s failure to testify?

Phillips v. State, 139 Tex.Cr.R. 574, 141 S.W.2d 371 (1940) was a prosecution for rape. The complaining witness testified that, after one of his acts of sexual assault upon her, “[defendant] said, I might just as well get used to that, because that’s the way he made his living, like that.” The trial court admitted the testimony under a theory of res gestae. We quote from this Court’s opinion:

“Bill of exception 13 also relates to argument of counsel for the state. It is shown in such bill that counsel employed the following language: ‘What you do (referring to the jury), that’s your responsibility. We have put the facts up to you; you are men who say that you are men of courage, say that you can do it, and I submit to you gentlemen under the facts in this case, the defendant’s testimony, “that is how I make my living, you will have to learn to like it” — under that testimony, and if you believe it is the truth, you are bound under your oath to return a verdict of guilty, and assess the maximum penalty. I submit it to you.’ [Defendant’s] counsel objected to the argument on the ground, among others, that it constituted a reference to the failure on the part of [defendant] to take the stand and testify. We are unable to perceive any reference in the remarks to the failure of the [defendant] to testify.”

Williams v. State, 169 Tex.Cr.R. 370, 333 S.W.2d 846 (1960) was a prosecution for murder. The Court wrote:

“[Defendant] urges error because the state’s attorney in his argument to the jury said: ‘that the defendant testified in his statement’ which was a direct reference to the [defendant’s] failure to testify-
“The [defendant] did not testify, but the state introduced his written statement consisting of two and one half single spaced pages in evidence which shows the details of the facts and circumstances surrounding the killing.
“The argument shows that the state’s attorney was referring to the facts and circumstances related in [defendant’s] written statement that had been introduced in evidence. No error is presented.”

Eurine v. State, 463 S.W.2d 2 (Tex.Cr.App.1971) was a prosecution for burglary. The Court reasoned as follows:

“[Defendant’s] second ground of error is that the prosecutor commented upon the defendant’s failure to testify when he made the following argument:
“ ‘Then we find that the Defendant is joined with Margie Dear and Mary Sharp and Glenn Walker in testifying as to who was the person who was there at Margie Dear’s — who broke into Margie Dear’s? The defendant Larry Eurine testifies himself in the Confession labeled * * * ’
“Upon [defendant's] objection to this argument, the prosecutor clarified his argument by stating, in the presence of the jury, ‘He testified against himself in the Statements in State’s Exhibit $ 7 [defendant’s confession] he said it was I — ’ “In light of the prosecutor’s clarification, we do not construe the above as an indirect allusion to the defendant’s failure to testify. It would appear that it is more of a reference to the evidence which had been properly admitted before the jury. [Defendant] did not testify before the jury, but his confession was introduced into evidence .... ”

In Phillips, Williams, and Eurine, the defendant’s words were before the jury as evidence. The prosecutors referred to that evidence, incorrectly, in phrases such as “defendant’s testimony” or “defendant testified.” Yet the wrong usage of the term “testimony” did not warrant reversal. The “implication that the language used had reference to the accused’s failure to testify” was not a necessary one. See Nickens, supra, and Lewis, supra. From the standpoint of the jury, the reference was explicitly to the defendant’s words in evidence. In Phillips, the prosecutor quoted the defendant’s words as the complaining witness had related them in her testimony. In Williams and Eurine, the express reference was to defendant’s written statement that had been introduced in evidence.

In the instant case, the prosecutor sought to remind the jury of appellant’s statements to a police officer at the scene of the arrest and at the police station. She stated to the jury: “I ask you also to recall the testimony of this man — not the testimony but the words that came out of this man’s own _” Thus from the standpoint of the jury the prosecutor’s reference was made expressly to the defendant’s words as the police officer had related them in his testimony.

We find that the prosecutor’s argument did not violate Art. 38.08, supra. Phillips v. State, supra; Williams v. State, supra; Eurine v. State, supra; cf. Potts v. State, 167 Tex.Cr.R. 240, 319 S.W.2d 304 (1958); see also Antwine v. State, 572 S.W.2d 541 (1978); Seibert v. State, 167 Tex.Cr.R. 182, 319 S.W.2d 335 (Tex.Cr.App.1959).

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration of appellant’s other grounds of error.

CLINTON, Judge,

dissenting.

Trial counsel for appellant heard the words and observed the movements of the prosecutor as she argued, “I ask you also to recall the testimony of this man — not the testimony but the words that came out of this man’s own — .” His immediate reaction was to object “to the comment on the failure of the ... defendant to take the stand.” The trial judge also heard and presumably observed the prosecutor; he promptly sustained the objection. Moreover, for good measure, he instructed the jury to “disregard the prosecutor’s statement and her argument about the testimony of this man ...”

Reading the transcription of notes of the court reporter and considering the same statement and argument, three judges of the court of appeals concluded:

“[T]he prosecutor’s action in pointing to the accused is a strong factor in determining whether the jury would naturally take the argument as a comment on the failure of defendant to testify. [Citation omitted]. This action by the prosecutor with her request for the jury to consider appellant’s testimony when there was none, we think, was error ...”

Harris v. State (Tex.Cr.App., No. 09-83-094, delivered December 14, 1983.)

Now members of this Court, disregarding impressions clearly felt and acted on by a trial lawyer and an experienced trial judge, as well as careful reasoning of three appellate judges, say that “from the standpoint of the jury the prosecutor’s reference was made expressly to the defendant’s words as the police officer had related them in his testimony.” Naivete aside, they simply accept that which all others implicated in evaluating the matter have rejected — excepting of course the prosecution.

Today, there is no suggestion that “with only a ‘cold’ record before us,” this Court gives “due deference” to the determination of the trial judge “who is present to hear the tone of voice and observe the demean- or” of the prosecutor as she moved and spoke. Compare Hernandez v. State, 643 S.W.2d 397, 406 (Tex.Cr.App.1981) (“interpretation of the jury voir dire”). Indeed, to the contrary, there is no deference whatsoever to his interpretation of her conduct.

Nor is any deference given to the reasoning of the court of appeals. Rather, the majority denigrates it. By glossing over the obvious interpretation of her entire conduct made by the trial judge and then by focusing only on “use of the word ‘testimony’ ” in a restated “context,” the majority manages to substitute its judgement for that of the court of appeals.

Today, a majority demonstrates once again a determination to recast this Court in its former role of deciding grounds of error on direct appeal. Adhering to my understanding of its new role as reviewing court, I respectfully dissent.

      . Art. 710 of the 1925 Code of Criminal Procedure contained the provision in identical language.

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


source: Caselaw Access Project

license: Public Domain

text:
    Leonard Charles GRAYSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 229-84, 922-84.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1984.

      Kerry P. Fitzgerald, Dallas, Bill Glaspy, Mesquite, for appellant.
    Henry Wade, Dist. Atty. and Jeffrey B. Keck, Jerry Banks and Paul Macaluso, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Appellant was charged by two indictments with the offense of attempted capital murder. Each indictment was enhanced by two prior felony convictions. The cases were joined for trial before a jury. The jury found appellant guilty of both offenses, found the enhancement allegations true, and assessed punishment at life imprisonment for each offense. The Fifth Court of Appeals (Dallas) affirmed both convictions in an unpublished opinion. Grayson v. State, Nos. 05-82-00855 and 00856-CR, 12-27-83. We granted appellant’s petition for discretionary review to examine the Court of Appeals’ holding that the trial court properly refused to allow appellant to question a defense witness in the presence of the jury because the witness had not waived her Fifth Amendment privilege against self-incrimination.

This case rose out of a drug raid on a residence in Dallas. Gunfire from the residence wounded two police officers taking part in the raid. Several people were in the residence at the time, and appellant’s defense was that some other occupant had shot the officers.

Appellant took the stand at the guilt-innocence phase and testified at length. His counsel then sought to call as a witness Janice Joiner, who had been present in the house at the time of the shooting.

The trial judge retired the jury and had Joiner, who was under indictment and in custody of the Sheriff’s Department, brought in. The judge then permitted Joiner to consult her attorney, who was also in the courtroom, about “whether or not she is willing or desires to testify in this case.”

After a brief recess, and with the jury still out of the courtroom, Joiner was sworn and took the stand. The following exchange took place:

“THE COURT: Now, let — the defense has requested to call you as a witness in the trial of the State of Texas versus Mr. Grayson.
“Let the record reflect Mr. John Read, counsel representing you, is present and has spoken with you for several minutes now. I’m sure he has properly advised you of all of your constitutional rights regarding your right to testify or to refuse to testify.
“And I understand from conversations with Mr. Read that he is recommending that you go ahead and testify. I understand your case is set for trial Monday.
“But let me ask you, if I bring the jury in and you are asked question in this case, is it your desire to testify or not to testify?
“THE WITNESS: I’d rather take the Fifth Amendment.
“THE COURT: You want to invoke the Fifth Amendment. In other words, you do not want to testify; is that correct? “THE WITNESS: No.
“THE COURT: All right. You certainly have that right, under the Constitutions, to do so.”

The court kept Joiner on the stand so that appellant’s counsel could make a bill of exceptions. The questioning went as follows:

“BY MR. GLASPY [defense counsel]:
“Q. State your name, please, ma’am.
“A. Janet—
“MR. BANKS [prosecutor]: Judge, even for purposes of the bill, are you going to allow her to testify, if she desires to invoke—
“THE COURT: No, no. She’s not— she can state her name, but beyond that, I imagine that Mr. Read is going to instruct her not to answer.
“MR. BANKS: Oh, okay.
“THE COURT: Go ahead and state your name.
“A. Janet Marie Joiner.
“Q. Janet Marie Joiner?
“A. Uh-huh.
“Q. Where did you live before you were placed in jail?
“A. 1903 Life.
“Q. Is that in Dallas, Texas?
“A. Yes.
“Q. It’s my understanding that you were arrested at 1959 Dennison; is that correct?
“A. I don’t quite understand ‘registered.’
“Q. You were arrested, were you not, December the 14th?
“A. Oh, yes.
“Q. 1959 Dennison?
“A. Yes.
“Q. When the police came in the front door, what room were you in?
“A. I—
“MR. READ: Ms. Joiner, I’m going to advise you at this time you don’t have to answer if you don’t want to. You can invoke the Fifth Amendment.
“THE WITNESS: Well, I will answer that.
“A. I was in the living room, fixing to answer the door. I was in the living room.
“MR. GLASPY: I’ll pass the witness.
“MR. BANKS: I have no further questions of this witness. At this time.”

Following another brief recess, the court addressed Joiner again:

“THE COURT: During the recess, you have had time to counsel with your attorney further, and I take it he has advised you that if we bring the jury in and you elect to answer one or more questions dealing with the facts out there, other than the biographical questions like what your name is and where you live, at that time you are giving up any right against self-incrimination that you might have under the Constitution, and would have to instruct you to answer all the questions that are asked you here in this hearing.
“Is that basically what you have been discussing with him?
“THE WITNESS: Yes, sir.
“THE COURT: All right. At the time you answered, you chose to answer the question a moment ago regarding what room of the house you were in, were you aware of the fact that if you chose to answer some of the questions, you would be ordered and required by law to answer all of them?
“THE WITNESS: No.
“THE COURT: All right. You are now aware of that fact?
“THE WITNESS: Yes.
“THE COURT: Now that you are aware of that fact, let me ask you if we bring the jury out and Mr. Glaspy proceeds to ask you other questions about what might have occurred in the house out there that day, whether or not you desire to answer them for the jury?
“THE WITNESS: No.
“THE COURT: All right. I take it by your answer of no that you are representing to me that you did not understand this a few moments ago, and that you still want to persist in exercising your rights under the Fifth Amendment not to testify in this case; is that correct?
“THE WITNESS: Yes.
“THE COURT: And you don’t want to testify in any manner, shape or form; is that right?
“THE WITNESS: That’s right.
“THE COURT: All right. Mr. Glaspy, I will allow you to go ahead and ask some more questions at this time while the jury is not present, and I will abide by the witness’s answers, whether or not she desires to exercise her Fifth Amendment right not to testify or whether she is willing to go ahead and answer the questions.
“In the event she does desire to exercise her Fifth Amendment right not to testify, I — it will be the ruling of the Court that the mere fact that she did answer the single question a few moments ago did not represent a knowing and voluntary waiver of her rights against self-incrimination, and I will hon- or her request not to testify.
“And you may have your objection and exception to that ruling ...”

Appellant’s counsel then asked Joiner five questions about events surrounding the shooting. Joiner replied by invoking the Fifth Amendment each time. Appellant’s counsel then stated to the trial judge:

“MR. GLASPY: Your Honor, the last two or three questions that we asked are after the offense occurred totally, everybody’s been arrested, and we would like to have those answers to those questions.
“THE COURT: I can appreciate that fact, Mr. Glaspy, but the ruling of the Court must be—and so that the record is clear, this witness is under indictment for a violation of the Controlled Substances Act, arising out of the same house on the same date, same transactions that have been testified to by other witnesses in this case.
“That indictment is currently pending in the 292nd Judicial District Court of Dallas County, the Honorable Michael Keasler presiding.
“And that being the case, it will be the Court’s ruling that I will not require the witness to open herself up to cross-examination as to other facts and events on the day in question which could conceivably be incriminating to her defense against that indictment.”

The Fifth Amendment privilege against self-incrimination is binding upon the states, and “the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified.” Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

The Court of Appeals applied the standard of Klein v. Harris, 667 F.2d 274, 287 (2nd Cir.1981), that a waiver of the privilege should be inferred from a witness’ prior statements only if: “(1) the witness’ prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) the witness had reason to know that his prior statements would be interpreted as a waiver of the fifth amendment’s privilege against self-incrimination.” The court reasoned that because the jury heard none of Joiner’s testimony, the finder of fact was not left with nor prone to rely on a distorted view of the truth. Under the test of Klein v. Harris, the court found no waiver.

The need to avoid distortion of the evidence is one concern of Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951). In Rogers, petitioner testified under subpoena before a federal grand jury that she had held the post of Treasurer of the Communist Party of Denver until January, 1948, and that, by virtue of her office, she had been in possession of membership lists and dues records of the Party. She denied having the records any longer, and testified that she had turned them over to another. When asked to identify the person to whom she gave the Party’s books, she refused.

The Supreme Court affirmed petitioner’s commitment for contempt. The Court noted that her claim of the privilege against self-incrimination “came only after she had voluntarily testified to her status as an officer of the Communist Party of Denver. To uphold a claim of privilege in this case would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.”

This Court, too, has long recognized the hazard:

“It is clearly inadmissible to permit a witness to give a partial account of his knowledge of the transaction, suppressing other of the circumstances, whether the evidence is to be used in favor of or against the state.”

Ex parte Park, 37 Tex.Cr.R. 590, 40 S.W. 300 (1897) (quoting with approval State v. K., 4 N.H. 562 (1829)).

In the instant case, the jury was the finder of fact. The witness Joiner gave her testimony out of the presence of the jury, and for the purpose of appellant’s bill of exceptions. The jury could not have been misled by Joiner’s partial disclosure because the jury did not hear it. The Court of Appeals correctly found no waiver of the privilege under the “distortion” criterion of Rogers, Klein, and Park.

According to one authority, understanding the Rogers decision as “merely an application of the general requirement that a demanded answer be incriminating” provides a more satisfactory rationale than the “distortion” interpretation of Klein v. Harris. C. McCormick, McCormick On Evidence, Sec. 140 at 346 (3rd ed. 1984).

The Rogers court reasoned as follows: “[W]hen petitioner was asked to furnish the name of the person to whom she turned over Party records, the court was required to determine, as it must whenever the privilege is claimed, whether the question presented a reasonable danger of further crimination in light of all the circumstances, including any previous disclosures. As to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a ‘real danger’ of further crimination.”

Rogers, 340 U.S. at 374, 71 S.Ct. at 442.

Citing the language quoted above, McCormick comments:

“Rogers’ contempt commitment was upheld because the Court found the question at issue would not increase her danger of prosecution and conviction. This, of course, provides a satisfactory rationale for the Rogers result that requires recourse to neither waiver considerations nor the danger of distortion presented by any particular facts. It further provides the basis for a criterion for applying Rogers to additional situations. Most courts appear to have relied exclusively on this rationale and have asked in such situations whether responding to the question asked would, given the witness’ prior testimony, increase the risk of incrimination. Only if the answer is negative has the witness lost the right to claim the privilege.

McCormick, supra, ibid.

In Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), the Court wrote:

“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it was asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”

The trial court cannot compel a witness to answer unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken in asserting the privilege, and that the answer cannot possibly tend to incriminate the witness. Hoffman, supra, quoting from Temple v. Commonwealth, 75 Va. 892 (1881).

Moreover, in Malloy v. Hogan, supra, the Court quoted with approval the following from United States v. Coffey, 198 F.2d 438, 440-441 (3rd Cir.1952):

“[I]n determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical; rather must he be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.”

Malloy v. Hogan, 378 U.S. at 13, 84 S.Ct. 15 1496, n. 9.

In the instant case, the trial judge voiced the proper concern when he said, “I will not require the witness to open herself up to cross-examination as to other facts and events on the day in question which could conceivably be incriminating to her defense against [the] indictment [pending against her].” The witness was to go to trial the following Monday on a charge of violating the Controlled Substances Act. The indictment against her rose out of a drug raid in which two police officers were shot, a number of suspects arrested, and weapons and drugs were confiscated (the same transaction that gave rise to the instant prosecution). In light of these circumstances, we do not find it “perfectly clear” that the answers demanded of the witness — and the consequent cross-examination — could not possibly tend to incriminate her of the indicted offense or of some other offense arising from the events of the case on trial.

Finally, the trial court’s ruling was correct under the standard of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The witness was asked and answered a question about what room she was in at a certain time. She later told the trial judge that when she answered she had not known that by answering she might be giving up her right not to incriminate herself. She then reaffirmed her desire not to incriminate herself through further testimony. The record supports the conclusion that after asserting her Fifth Amendment privilege the witness did not voluntarily and intentionally relinquish a known right or privilege. Johnson v. Zerbst, supra.

The judgments of the Court of Appeals are affirmed.

CLINTON, Judge,

dissenting.

Tension between the right of an accused to compulsory process and the right of a witness to claim the privilege, alluded to in note 2 of the majority opinion, is not a problem in the type of cases decided by the Supreme Court of the United States which the majority cites and discusses. In each the party seeking protection of the privilege had been haled to a grand jury or court of inquiry; upon declining to answer questions deemed incriminating, the inquisitor caused the party to be brought before the court for appropriate proceedings. Whether it held for or against the witness then depended on what the court found on the issue of “testimonial waiver.” Thus, the Supreme Court did not confront, and in Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 99 L.Ed.2d 344 (1951) expressly reserved, “the problems arising out of possible abuse of the privilege against self-incrimination in adversary proceedings,” id., U.S., at 373 n. 15, S.Ct., at 442 n. 15. Accordingly, the majority begs rationale in excessively relying on opinions of the Supreme Court written in what the Supreme Court itself recognizes is a quite different context.

The decision relied on by the Dallas Court of Appeals and now by this Court begins its discussion of the problem as follows:

“There is no doubt that a waiver of the fifth amendment’s privilege against self-incrimination may, in an appropriate case, be inferred from a witness’ prior statements with respect to the subject matter of the case, without any inquiry into whether the witness, when he made the statements, actually knew of the existence of the privilege and consciously chose to waive it [Citation omitted].”

Klein v. Harris, 667 F.2d 274, 287 (CA2 1981). Thus, had Janice Joiner first testified before the jury as she did before the court, the inquiry made by the trial court would have been improper and its related actions, according to the Klein Court, “indefensible.” Id., 280, 289.

Beyond that though, the Court is about to approve an intolerable infringement as well on the right of an accused to compulsory process as on the right of the State to claim “testimonial waiver” by a putative witness in similar circumstances. Since, unlike federal courts, this Court insists that a party “has no right to have a witness assert or invoke his Fifth Amendment in the presence of the jury,” Ellis v. State, 683 S.W.2d 379 (Tex.Cr.App., No. 0143-83, delivered September 19, 1984) and cases cited therein, there has developed a nearly uniform practice for a trial judge to conduct a voir dire examination outside the presence of the jury to determine whether the proffered witness does indeed intend to invoke the privilege. To adopt for a such a hearing before the court the notion the Second Circuit applied where a recalcitrant witness had earlier testified before a jury to facts such that a waiver was inferred means that “testimonial waiver” cannot be found — the prior statements made by the witness will never create “a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth,” Klein, supra, at 287.

The leading decision on the subject in this jurisdiction is Ex Parte Park, 37 Tex.Cr.R. 590, 40 S.W. 900, 66 Am.St.Rep. 835 (1897). Ex parte Adams, 76 Tex.Cr.R. 277, 174 S.W. 1044 (1915); Ray, Texas Law of Evidence (Third Edition) § 476, 1 Texas Practice 465, n. 89. Initially Park had been jointly indicted with two others, but after trial got underway the case against him was dismissed on motion by the State. The State then called Park to the witness stand and propounded a question that Park declined to answer on the ground that a truthful answer would tend to incriminate him of an offense against the law of this State. The trial judge held he was bound to answer, and upon his continued refusal found Park in contempt and remanded him to custody until he answered the question. In ordering Park discharged from custody, since the issue was not in the case, the Court dealt with “testimonial waiver” by way of explaining that “the objection of privilege — that is, that the answer to the question would tend to incriminate him— must be made at the threshold,” so that when a witness “voluntarily states a part of the testimony, he waives his right, and cannot afterwards stand on his privilege.” Ex parte Park, supra, 40 S.W. at 302.

It is axiomatic that “in refusing to answer a question on the ground that the answer would tend to incriminate him, the witness is exercising a constitutional right personal to himself,” Glasper v. State, 486 S.W.2d 350, 352 (Tex.Cr.App.1972), and “only the witness can take advantage of the right to decline to testify on [that] ground,” Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 780 (1933). Though Joiner was fully advised and indicated to the trial judge that she would “rather take the Fifth,” without any doubt she overrode the express advice from her own lawyer that “you don’t have to answer if you don’t want to. You can invoke the Fifth Amendment,” when she then voluntarily stated, “I will answer that [question],” and proceeded to do so. Just as obviously her answer “related part of the facts of the transaction,” Draper v. State, 596 S.W.2d 855, 857 (Tex.Cr.App.1980), and was an incriminating admission that she was present in the house — in the living room “fixing to answer the door” — since presence is an evi-dentiary factor in possession cases. Factually Joiner waived the privilege “by exercising [her] option of answering,” Blackmon v. State, supra, at 501, quoting approvingly Wigmore on Evidence (McNaughton Revision) § 2276(b)(1). See Ex parte Miers, supra, 64 S.W.2d at 780.

So long as this Court sanctions and upholds the practice that trial judges conduct a voir dire examination to determine whether a putative witness will claim the privilege, it should make clear to them that there is more to the inquiry than whether one would “rather take the Fifth” instead of testifying before the jury. It is simply not correct to say to such a putative witness, “You certainly have that right, under the Constitution, to do so.” The privilege is not against testifying at all. It is against testifying to one or more facts beyond the threshold of a particular “transaction” that may tend to incriminate the witness. Blackmon v. State, supra, at 502.

Accordingly, a matter of privilege is presented by some character of examination to which a response is sought. During the inquiry should a putative witness respond without claiming it, the privilege is waived in that particular, and there is nothing for the trial court to rule on; but should the privilege be claimed the trial court must decide whether to sustain it, and then the witness is left free to answer or not. Ray, op cit, §§ 473 and 476, 1 Texas Practice 460, 464-465.

However, once a putative witness answers with an incriminating fact and an answer of a further fact is sought, should the privilege then be claimed, the issue becomes whether stating the first fact waived the privilege as to the second. Blackmon and Draper, both supra. That issue was reached in the voir dire examination conducted by the trial court in this case, but the trial judge did not properly resolve it. Instead, the judge announced that “it will be the ruling of the Court that the mere fact that she did answer the single question a few moments ago did not represent a knowing and voluntary waiver of her rights against self-incrimination...” Such is not the law under the very decision relied on by the majority; the prior statement being both “testimonial” and “incriminating,” Joiner “plainly [had] reason to know... that [it] may be interpreted as a waiver of [her] fifth amendment privilege against self-incrimination [and] [s]uch a witness is not treated unfairly, then, if a court ultimately interprets the statements in this fashion.” Klein v. Harris, supra, at 288.

In my judgment, the majority grievously errs in giving its approval to the notion that a witness may successfully plead ignorance of the law “that by answering she might be giving up her right not to incriminate herself,” and then reclaim the privilege she had so affirmatively and voluntarily expressly waived in the face of contrary advice from her own counsel.

I dissent.

      . The questions were, in the order asked:
      "Q. Ms. Joiner, when the police came through the front door of that house, were you knocked down by one of the police officers?"
      "Q. Ms. Joiner, were you in the room where the witnesses — where the shooting occurred?
      “Q. After all of the transactions went down, Ms. Joiner, did you hear anybody say that Wayne Morris did the shooting?”
      "Q. Ms. Joiner, after all of the witnesses — after all of the shooting had occurred and everybody was placed under arrest, did you hear [appellant] say that Wayne Morrison did the shooting?”
      "Q. Ms. Joiner, after all of the witnesses were arrested and you were under arrest, did you hear [appellant] say that Rufus Pyburn did the shooting?"

      . Rogers, Hoffman, and Malloy v. Hogan were inquisitorial cases that lacked any conflict between the witness’ Fifth Amendment privilege and a defendant’s Sixth Amendment right to compulsory process. Nevertheless, we have stated that even in a criminal prosecution the accused’s right to compulsory process under the Sixth Amendment does not override a potential witness’ Fifth Amendment privilege against self-incrimination. Ellis v. State, 683 S.W.2d 379 (Tex.Cr.App.1984), and cases cited therein; Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973); Hall v. State, 475 S.W.2d 778 (Tex.Cr.App.1972); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972); see also Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 166-170 (1974).

      . By answering on direct examination then asserting the privilege when asked a related question on cross-examination, the witness risks a finding of waiver under the “distortion" rationale discussed above. See Malloy v. Hogan, supra.

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

      . That is not to say that the writer shares such view, but to make the point that great care must be taken in treating this sensitive matter of constitutional dimension. Klein, at 289.

      . After the defense recalled the witness to the stand, "the judge advised [him] that he had the right to remain silent, and directed [his] attorney to stand at his client’s side in order to advise him as to each question asked by [defense] counsel... [and when it was invoked] allowed [the witness] to assert the privilege. Moreover, he did not strike [his] earlier testimony on this subject."

      . "Here, the trial judge did not direct [the witness], upon being recalled to the stand, to answer the questions posed by [the defense]; nor did he threaten [him] with being held in contempt once he refused to answer those questions. Instead, the trial judge actively encouraged [the witness] not to answer the questions put to him... [and] failed to strike [his] prior testimony.”

      . It occurs to me that the rare occasion for operation of the Klein formulation will be when a naive or unsophisticated witness makes "testimonial” and "incriminating" statements before the trier of fact, and thereafter attempts to invoke the privilege against self-incrimination. To thus restrict availability of relevant testimony to witnesses who do not know or are careless about asserting the privilege surely impedes our vaunted judicial search for the truth.

      . Notwithstanding earlier praises accorded it by the Court and Professor Ray, this Court has cautioned against taking its “broad statements. .. out of the context of that case.” Blackmon v. State, 642 S.W.2d 499, 501 (Tex.Cr.App.1982).

      . In the days of Park and Adams, of course, all trials were to a jury and a witness might be called to the stand by one party or the other, only to hear him decline to testify on the ground that testimony sought would tend to incriminate him. Though the Court came to criticize that ploy consistently, see, e.g., McClure v. State, 95 Tex.Cr.R. 53, 251 S.W. 1099, 1102-1103 (1925); Rice v. State, 121 Tex.Cr.R. 68, 51 S.W.2d 364 (1932); Rice v. State, 123 Tex.Cr.R. 326, 59 S.W.2d 119 (1933), disdaining such remedial measures as an attempt to withdraw offensive questions from consideration by the jury, Washburn v. State, 299 S.W.2d 706, 709, 710 (Tex.Cr.App.1956), its own remedy was to reverse the judgment. But see Mathis v. State, 469 S.W.2d 796, 799 (Tex.Cr.App.1970). In Federal courts an appropriate instruction to the jury was seen as a prophylactic endeavor. United States v. Maloney, 262 F.2d 535, 538 (CA2 1959). Apparently conducting a voir dire examination never occurred to appellate judges or trial judges nor was one requested by an opposing party until more recent times. Thus the dearth of authority touching the instant situation.


author: THOMAS G. DAVIS, Judge. ONION, Presiding Judge, McCORMICK, Judge,

text:
    Ex parte James Lee CHANDLER, Jr.
    No. 69150.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 6, 1985.
    James Lee Chandler, Jr., pro se.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

THOMAS G. DAVIS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

On August 9, 1982, applicant was convicted following his plea of guilty to the offense of theft of property over the value of $200.00 and under $10,000.00. Punishment was assessed at eight years in the Texas Department of Corrections in accordance with a plea bargain agreement which provided that his confinement was “To run concurrent with Federal Parole Time.”

The plea bargain agreement is borne out by the trial court’s finding in its order on the 11.07 application which recites “the Court sentenced the Petitioner to Eight (8) years in the Texas Department of Corrections in accordance with the Plea Bargain Agreement which is attached hereto as Exhibit B.” Exhibit B, denominated “Plea Bargain Agreement,” signed by applicant, his attorney and the district attorney, reflects “confinement Texas Department of Corrections for 8 years ... To run concurrent with Federal Parole time.”

Applicant maintains that the agreement to give him credit on his federal parole time by running his punishment with his federal parole time is an agreement which the State is unable to perform. Where the inducement for a defendant to enter a plea of guilty is a representation by the State which it cannot keep, doubt is raised as to whether a guilty plea under such circumstances can be regarded as truly voluntary. Ex parte Burton, 623 S.W.2d 418 (Tex.Cr.App.1981); Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.1979). When a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement, the State is bound to carry out its side of the bargain. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App.1979). The trial court as well as this Court would be unable to order specific enforcement of the plea bargain since this is a matter for determination by the Federal Parole Commission. Clearly, that Commission is not bound to honor any plea bargain agreement made in a state court that punishment assessed there is to run concurrent “with Federal Parole Time.” The plea bargain agreement herein being one that is not enforceable, the applicant is entitled to withdraw the plea. Applicant is entitled to the relief sought.

The relief sought is granted, applicant is ordered remanded to the Sheriff of Johnson County to answer the indictment in Cause No. 23687 of the 249th Judicial District Court of Johnson County.

It is so ordered.

ONION, Presiding Judge,

dissenting.

Here again the majority takes the wrong turn despite the well-marked signs along the way. See Ex parte Taylor, 684 S.W.2d 113 (Tex.Cr.App.1985), and Ex parte Huerta (Tex.Cr.App.1985, No. 69,352, January 30, 1985). The majority simply fails to understand that when a Texas judge merely orders a Texas sentence (which he has the authority to impose) to run concurrent with another prior sentence it does not automatically mean that the prior sentence is to also run concurrent with the said Texas sentence. And this is particularly true where the prior sentence is from another court, including courts of sister states or federal courts and over which the Texas judge has absolutely no control.

This instant proceeding involves a post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C. C.P.

It appears that on August 9, 1982 applicant was convicted of felony theft of property over $200.00 and under $10,000.00. Applicant entered a guilty plea before the court, and after abandonment of the enhancement paragraphs of the indictment, punishment was assessed at eight years’ imprisonment as a result of a plea bargain. The plea bargain apparently included an agreement the Texas sentence was “to run concurrent with Federal Parole Time.” No appeal was permitted by the court in view of Article 44.02, V.A.C.C.P., and no matters having been raised by pre-trial motions.

On February 16, 1983, applicant filed his post-conviction habeas corpus application in the convicting court. See Article 11.07, supra. Under “Grounds for Relief” in said application it stated:

“Applicant has been denied the most rudimentary constituents of due process, reasonable assistance of counsel; equal protection of the law as conferred under the Fifth, Sixth, Fourteenth Amendments to the Constitution of the United States of America; Article I, Sections 10.19, Bills of Rights to the State of Texas Constitution, stemming from applicant’s constitutional infirm conviction without evidence, perfunctory; disloyal services of retained counsel; prosecutor’s pretense breached guilty plea-bargain agreement that eluded detection by this 249th District Court, Johnson County, Texas, on August 9, 1982, in Cause No. 23687.”

The main thrust of appellant’s argument is that he was denied the effective assistance of retained counsel. Under “Facts of the Case” in the application, it is stated, inter alia, his counsel told him if he plead guilty the prosecutor would agree to give him credit on his federal parole time “by running his state sentence concurrent with his Federal Parole Time.” Applicant then asserts the trial court caused the sentence to run concurrent with his federal parole time. This action he claims guaranteed him credit on his federal parole time, which he now knows he is not receiving because of action taken by federal authorities.

If notified, the State did not file an answer. There was no evidentiary hearing and no affidavits were filed.

On March 29, 1983, the district court denied the application, finding there were not any controverted, previously unresolved facts material to the legality of the applicant’s confinement.

The record was forwarded to this Court. The judgment and sentence are not included. There is no way to tell if any order as to concurrent sentence is reflected in the judgment or sentence. There is no .statement of facts concerning the guilty plea.

After the record reached this Court, the applicant filed a “Memorandum of Law” principally asserting an involuntary guilty plea due to a broken plea bargain by State’s counsel citing, inter alia, Ex parte Burton, 623 S.W.2d 418 (Tex.Cr.App.1981).

This is all we have before this Court.

In post-conviction habeas corpus hearings the burden of proof is on the applicant. Ex parte Bratchett, 513 S.W.2d 851 (Tex.Cr.App.1974); Ex parte Slaton, 484 S.W.2d 102 (Tex.Cr.App.1972). See also Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex.Cr.App.1982).

The allegations in the habeas corpus application are not consistent, and the assertions in briefs cannot be accorded the status of evidence. There is not a sufficient record upon which this Court may properly act. The cause should be remanded to the convicting court for an evidentiary hearing. Despite the condition of the record, the majority finds a broken plea bargain without a copy of the judgment or sentence in the record.

Article 42.08, V.A.C.C.P., gives a Texas judge the discretion either to cumulate or allow the Texas sentence to run concurrently with other prior sentences. Carney v. State, 573 S.W.2d 24, 27 (Tex.Cr.App.1978); Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977); Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976); Branson v. State, 525 S.W.2d 187 (Tex.Cr.App.1975); Banks v. State, 503 S.W.2d 582, 583 (Tex.Cr.App.1974). The Texas sentence is the only sentence the Texas judge has the right to impose and over which he has control. The Texas judge has no control over sentences from federal courts or courts of sister states or even from another Texas court. Any order entered by a Texas judge cannot affect an existing sentence imposed by another court. “This should be without dispute.” Ex parte Spears, 154 Tex.Cr.R. 112, 235 S.W.2d 917, 918 (Tex.Cr.App.1951) (opinion on rehearing); 18 A.L.R.2d 507, reh. overruled with opinion, 236 S.W.2d 968 (Tex.Cr.App.1951).

If there is a plea bargain that the Texas sentence is to run concurrently with a sentence from a federal court, it means simply that and no more. The reverse is not true. The Texas court has no authority to control or place conditions on a sentence from a foreign jurisdiction. If the Texas sentence is running concurrently with the prior sentence of a federal court or a sister state, then the plea bargain is being kept, despite what the proper federal or sister state authorities do with the sentence from their jurisdiction.

If on the other hand, a Texas court, on approving a plea bargain, goes beyond its authority and assures a defendant that not only will his Texas sentence run concurrently with an outstanding sentence from another jurisdiction, but his other sentence will run concurrently with the Texas sentence, then the basis for a broken plea bargain may well be laid. This is particularly true where the foreign jurisdiction subsequently decides to place a detainer on the defendant with Texas authorities and ceases the “running” of his sentence from that jurisdiction until he is again in their custody.

In most cases Texas courts do not exceed their authority and do not enter into improper plea bargains promising things beyond their control. What happens in most cases is that as a part of a plea bargain the court simply agrees to run the Texas sentence (over which it has control) concurrently with a prior sentence from another court or jurisdiction. After the convicted defendant remains in Texas custody, he learns that while his Texas sentence is continuing concurrently with the prior sentence (as far as Texas is concerned) the authorities with control over the prior sentence have decided to cease the “running” of that sentence while he is in Texas custody. The inmate-defendant then urges there was a broken plea bargain as both sentences were to run concurrently with each other, and the Texas court had in effect promised it would place conditions on the prior sentence from the other jurisdiction and control the same. The burden of proof is on the applicant in a habeas corpus proceeding to prove this latter situation exists.

In the instant case the applicant has not sustained his burden of proof, and yet without an order to hold an evidentiary hearing, the majority readily agrees the convicting court promised that which was beyond its control without any evidentiary support for that conclusion.

I dissent, and shall continue to dissent as long as the majority utilizes its misguided approach to the question presented by the instant proceedings. See dissenting opinions in Ex parte Taylor, supra, and Ex parte Huerta, supra.

W.C. DAVIS, McCORMICK and WHITE, JJ., join this dissent.

McCORMICK, Judge,

dissenting.

In addition to joining in the dissenting opinion of Presiding Judge Onion, I write to again point out what I noted in my dissenting opinion in Ex parte Huerta (No. 69,352, January 30, 1985):

“... To conclude from this ‘record’ that applicant was misled is to elevate pleading to the status of evidence.”

As in Huerta, this cause should be remanded for a hearing where applicant may properly assume the burden which previously had been placed on persons such as this applicant.

WHITE, J., joins in this dissent.

      . In Moody v. Doggett, 429 U.S. 78, 81, 97 S.Ct. 274, 275, 50 L.Ed.2d 236 (1976) the United States Supreme Court sets forth the courses of action that the Federal Parole Commission can take when a federal parolee is convicted of a new offense. The matter of whether the remainder of the parole violator’s original sentence would run concurrent with punishment assessed in a subsequent offense is a matter for determination solely by the Federal Parole Commission.

      . Article 42.08, V.A.C.C.P., provides:
      “When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly."

      . It is well settled that where a trial court does not order two or more sentences to be cumulative, the terms of imprisonment shall automatically run concurrently whether expressed in the formal sentence or not. Ex parte Bates, 538 S.W.2d 790 (Tex.Cr.App.1976); Ex parte Iglehart, 535 S.W.2d 185, 187 (Tex.Cr.App.1976), and cases there cited.


author: MILLER, Judge. ONION, Presiding Judge, McCORMICK, Judge,

text:
    Ex parte Lionel Craig YOUNG, Sr.
    No. 69195.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 6, 1985.
    Bruce S. Fox, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

MILLER, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, Y.A.C.C.P.

The record reflects that on January 18, 1980, following his plea of guilty, applicant was convicted of aggravated robbery, felony escape, and three counts of theft over $200. Punishment was assessed at twelve years confinement in the aggravated robbery conviction and ten years confinement in the other four convictions.

Applicant contends that his pleas of guilty were involuntary because they were induced by a plea bargain, the conditions of which were impossible to perform.

The record reflects that, as a part of the plea bargain, the applicant was told that his sentences would run concurrently with his sentence out of Colorado. The following excerpts from the trial described the agreement:

“[DEFENSE COUNSEL]: Now, you have entered into a plea bargain and this is your understanding of the plea bargain that in each case, the three theft cases you will receive ten years concurrent sentence and that that sentence will also run concurrently with the parole case that you have in Colorado?
“A: That is correct.
“Q: You are on parole from Colorado; is that correct?
“A: That is correct.
“Q: And is it your understanding that all five cases, in fact, will run concurrently with your parole situation in Colorado?
“A: That is correct.
* * * ⅜ * *
“[THE PROSECUTOR]: You also understand that part of the plea bargaining agreement in this case is that the State agreed that the case that you have out of the State of Colorado Cause Number 26028 out of Division One Register Number 044365, any case that you have up there that has been taken to final judgement and sentence is to run concurrent with the time that you are about to receive in these cases; is that correct?
“A: Yes.
“Q: And you also understand that as part of the plea bargaining agreement that the State of Colorado will be immediately notified of the disposition of these cases so that they can take any course of action that they want to with regard to bringing you back to Colorado?
“A: Yes, sir.
******
“[THE PROSECUTOR]: In the case that was quoted, the number I just read into the record where we have agreed to run the Texas time concurrent with the Colorado time, if those are not the right cause numbers or the right cases, let it be understood that the State of Texas agrees that whatever case Lionel Craig Young, Sr. has in the State of Colorado that has been reduced to final judgement and sentence, the State agrees that the Texas time can run concurrent with the Colorado time.
“[THE COURT]: All right.... All of those to run concurrent with what you got in Colorado.
“[THE DEFENDANT]: Yes, Your Hon- or.”

In each of the causes, the sentences explicitly provide that “DEFENDANT’S TIME IS TO RUN CONCURRENTLY WITH CASES IN COLORADO.”

The record reflects that applicant’s Texas sentences are not running concurrently with his Colorado sentence. The Colorado authorities withdrew the warrant and de-tainer by letter dated April 23, 1980, and have tolled the running of the Colorado sentence while applicant is incarcerated in Texas. They have requested that the Texas Department of Corrections notify them prior to applicant’s release and have specifically informed applicant that his Colorado sentence cannot be run concurrently.

Clearly, the Dallas County officials did not have the authority to bind the State of Colorado to follow the plea bargain. In Ex parte Burton, 623 S.W.2d 418 (Tex.Cr.App.1981), we granted relief in a case with facts similar to those in the instant cause. In Burton, supra at 419, it was held that since the defendant was induced to enter a plea of guilty based upon a representation that he would receive credit upon his federal sentence while in state custody, and he was not receiving that credit, the defendant’s plea of guilty was not voluntarily entered and he was entitled to withdraw the plea. See Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.1979); Joiner v. State, 578 S.W.2d 739 (Tex.Cr.App.1979).

Burton, supra, controls the disposition of the instant cause. See also Ex parte Huerta (Tex.Cr.App.1985, No. 69,352, January 30, 1985); Ex parte Chandler, 684 S.W.2d 700 (Tex.Cr.App.1985).

The relief sought is granted. The judgments are set aside and applicant is ordered remanded to the Sheriff of Dallas County to answer the indictments in these causes. A copy of this order shall be sent to the Texas Department of Corrections.

It is so ordered.

ONION, Presiding Judge,

dissenting.

Applicant filed his post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P.

The application filed in the convicting court alleged that his convictions for five felonies are void as he was induced to plead guilty in each case “by a plea bargain agreement that the trial court is either unable or unwilling to follow.”

The record reflects that on January 18, 1980, applicant entered pleas of guilty before the court to indictments charging aggravated robbery, felony escape, and three offenses of felony theft. Punishment was assessed at 12 years’ imprisonment for the aggravated robbery, and at 10 years’ imprisonment for each of the other four offenses.

The habeas corpus application alleges the said Texas sentences were to run concurrently with each other as part of the plea bargain, and further, “the agreement provided that the Applicant’s sentences were to be run concurrently with time that the Applicant owed to the State of Colorado.” It was also alleged the trial judge accepted the plea arrangement.

Applicant urges his plea bargain has been broken because he has been advised by Colorado authorities his “time has stopped on his Colorado sentence” on which he was on parole when convicted in Texas. He argues this violates his plea bargain wherein the prosecutor promised “to run the Applicant’s Texas sentences concurrently with the time the Applicant owed to the State of Colorado.”

The trial court, without an evidentiary hearing, made findings of facts and conclusions of law to the effect applicant was not entitled to relief on the day he made supplemental findings and conclusions which in part states:

“The pleas in these cases were taken simultaneously. The Statement of Facts clearly reflects that it was the understanding of the parties at the time that the Texas sentences imposed for the above-cited convictions were to run concurrently with any Colorado conviction. Obviously, the Honorable Judge Ward-low Lane did not intend to order the State of Colorado to run its conviction concurrent with the above-cited convictions. He clearly had no such power. A fair reading of the Statement of Facts allows for no other conclusion than that the Texas convictions run concurrent with the Colorado conviction. Applicant has not even alleged that this is not being done.”

Among other papers the court ordered the “Statement of Facts” forwarded to this Court.

The “Statement of Facts” from the guilty pleas reflects that the applicant testified. On direct examination by his counsel the record reflects:

“Q. Now, you have entered into a plea bargain and this is your understanding of the plea bargain that in each case, the three theft cases you will receive ten years concurrent sentence and that that sentence will also run concurrently with the parole case that you have in Colorado?
“A. That is correct.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“Q. And is it your understanding that all five cases, in fact, will run concurrently with your parole situation?
“A. That is correct.”
On cross-examination the record reflects:
“MR. WILSON (prosecutor): In the case that was quoted, the number just read into the record where we have agreed to run the Texas time concurrent with the Colorado time, if those are not the right cause numbers or the right cases, let it be understood that the State of Texas agrees that whatever case Lionel Craig Young, Sr. has in the State of Colorado that has been reduced to final judgment and sentence, the State agrees that the Texas time can run concurrent with the Colorado time.
“THE COURT: All right. In each of them ... all of those to run concurrent with what you got in Colorado.” (Emphasis supplied.)

Typed at the bottom of each sentence are the words “Defendant’s time is to be served concurrently with cases in Colorado.”

It is well settled that this Court is not bound by the findings of the district court, but such findings are entitled to weight and the district court’s findings in the instant case are clearly supported by the record.

The majority continues to labor under the misconception that when a Texas court orders a Texas sentence to run concurrently with a sentence from a sister state or federal court, etc., the court is also ordering the foreign sentence to run concurrently with the Texas sentence.

Article 42.08, V.A.C.C.P., gives a Texas judge the discretion either to cumulate or allow the Texas sentence to run concurrently with other prior sentences. Carney v. State, 573 S.W.2d 24, 27 (Tex.Cr.App.1978); Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977); Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976). The Texas sentence is the only sentence the Texas judge has the right to impose and over which he has control. The Texas judge has no control over sentences from federal courts or courts of sister states or even from another Texas court. Any order entered by a Texas judge cannot affect an existing sentence imposed by another court. See Ex parte Spears, 154 Tex.Cr.R. 112, 235 S.W.2d 917 (Tex.Cr.App.1951) (opinion on rehearing); 18 A.L.R.2d 507, reh. overruled, 236 S.W.2d 968 (Tex.Cr.App.1951).

In Spears, 235 S.W.2d at p. 918, this Court wrote:

“No order which the Federal Court made, or could have made, would have any effect on an existing sentence from a Texas court. Furthermore, we may observe that even if Baird had been tried on another charge in a state court, that court could make no order which would affect the existing sentence which he was serving. The trial judge in passing sentence on one already under sentence in another court may, by proper order, cumulate the sentence which he imposes with the existing one, or he may let his sentence run concurrently, but nothing he may do can affect the existing sentence imposed by another court. This, it seems, should be without dispute.” (Emphasis supplied.)

If there is a plea bargain that the Texas sentence is to run concurrently with a sentence from a sister state, it means simply that and no more. The reverse is not true. The Texas court has no more authority to control or place conditions on a sentence from a foreign jurisdiction any more than a foreign jurisdiction has authority to control or place conditions on an existing Texas sentence. If the Texas sentence is running concurrently with the prior sentence of a federal court or a sister state, then the plea bargain is being kept, despite what the proper federal or sister state authorities later do with the sentence from their jurisdiction. This is, or should be well known to every member of the bench and bar engaged in the practice of criminal law except, perhaps, today’s majority.

The instant case is not a situation where as a result of a plea bargain the defendant is assured that his sentence from a sister state over which the Texas court has no control will run concurrent with the Texas sentence, and believing that, the defendant enters the plea bargain which is approved by the trial court.

This case is not like Ex parte Burton, 623 S.W.2d 418 (Tex.Cr.App.1981), and is not controlled by it. In Burton it was held that where a defendant was induced to enter a plea of guilty based upon representation that he would receive credit upon his federal sentence while in custody of Texas authorities, and he was not receiving such credit his plea of guilty was not voluntarily entered.

In post-conviction habeas corpus hearings the burden of proof is on the applicant. Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex.Cr.App.1982); Ex parte Bratchett, 513 S.W.2d 851 (Tex.Cr.App.1974); Ex parte Slaton, 484 S.W.2d 102 (Tex.Cr.App.1972). In the instant case the applicant has not sustained his burden nor shown that Burton is applicable.

Once more I dissent, and urge the majority to reconsider what it is doing. See Ex parte Taylor, 684 S.W.2d 113 (Tex.Cr.App.1985); Ex parte Huerta (Tex.Cr.App.1985, No. 69,352, January 30, 1985); Ex parte Chandler, 684 S.W.2d 700 (Tex.Cr.App.1985).

W.C. DAVIS, McCORMICK and WHITE, JJ., join in this opinion.

McCORMICK, Judge,

dissenting.

I again join Presiding Judge Onion in dissenting to the action of the majority. The trial officials of this State should proceed with caution when accepting pleas of guilty, and, on the record admonish a defendant that the agreement does not, and cannot, have any effect on sentences from other jurisdictions.

      . The findings were by the duly elected judge of the convicting court. The judge who presided at the guilty pleas was a retired district judge sitting by an assignment.

      . Article 42.08, V.A.C.C.P., provides:
      "When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly.”

      . It may be doubtful that Burton was correctly decided under the facts revealed by an examination of the appellate record in that case. See footnote #1 of this writer’s dissenting opinion in Ex parte Huerta, (Tex.Cr.App.1985, No. 69,352, January 30, 1985).


author: PER CURIAM.

text:
    Ex parte Hector Daniel CARPIO.
    No. 69349.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 13, 1985.
    Jon R. “Randy” Farrar, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

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

Applicant was indicted for delivery of marihuana “fifty pounds or less but more than five pounds.” He was convicted upon his plea of guilty before the court, on March 21, 1983, and the court sentenced him to fifteen years’ confinement.

Applicant was charged and punished under the provisions contained in House Bill 730, which was declared infirm in Ex Parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983). He contends that his conviction is therefore invalid.

At the time applicant pled guilty, the offense for which he was indicted was a first degree felony punishable under H.B. 730, by confinement for life or for a term not more than 99 years nor less than 5 years, and a fine not to exceed $20,000. In Ex Parte Crisp, supra, we held that although H.B. 730 was defective, the original act stands as though H.B. 730 had never been enacted. Under the original act the offense with which applicant was charged was a third degree felony, punishable by confinement for a term of not more than 10 years or less than 2 years, and a fine not to exceed $5,000. Art. 4476-15, Sec. 4.01(b)(3) and 4.05(d), (e), V.A.C.S. Applicant was sentenced to fifteen years’ confinement.

Accordingly, applicant is entitled to have his punishment reassessed under the provisions of the original act. We remand this cause to the trial court for reassessment of punishment within the range set forth in the original act.

      . Acts of the 67th Leg., Reg.Sess, 1981, ch. 268, pg. 696-708, effective September 1, 1981.

      . Art. 4476-15, Sec. 4.05, V.A.C.S.
      From the record before us, it appears that applicant was erroneously admonished that the punishment range was not more than 20 years nor less than 2 years, and a fine not to exceed $10,000. However, absent a plea bargain, (of which there is no evidence) we fail to see how applicant was harmed by the admonishment.


author: DODSON, Justice.

text:
    Jackie Ray WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-81-0125-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 28, 1983.

      Marion J. Craig, III, Hereford, for appellant.
    Roland Saul, Dist. Atty., Hereford, for appellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   DODSON, Justice.

The appellant, Jackie Ray Williams, was indicted for the offense of burglary of a habitation. 676 S.W.2d 399 (Tex.Cr.App. 1984). Tex.Penal Code Ann. § 30.02(a)(3) (Vernon 1974). The jury found the appellant guilty of the offense. The punishment phase of the case was tried before the court with the jury. After finding the enhancement allegations to be true, the court followed the mandatory provisions of Tex. Penal Code Ann. § 12.42(d) (Vernon 1974), and assessed the appellant’s punishment at life imprisonment in the Texas Department of Corrections. By seven grounds of error, the appellant claims the judgment should be reversed. Concluding that the trial court committed reversible error in the charge to the jury, we reverse and remand.

The appellant’s second ground of error presents our initial inquiry. By that ground of error, he claims the trial court committed reversible error in its charge to the jury because that charge authorizes a conviction on theories not alleged in the indictment. We agree.

In pertinent part, the indictment reads: that JACKIE RAY WILLIAMS, who is hereinafter styled Defendant, acting together with Rebecca Jane Taylor and Pete DeLaRosa a/k/a Angel Pecero, on or about the 24th day of June, A.D., 1980, and anterior to the presentment of this indictment, in the County and State aforesaid, did then and there knowingly and intentionally enter a habitation without the effective consent of Travis McGaughey, the owner, and therein attempted to commit and committed theft, (emphasis added).

In the charge, when applying the law to the facts in the fifth paragraph, the trial court tracked the above allegations in the indictment; however, in the eighth paragraph, the court further charged:

Now, if you find from the evidence beyond a reasonable doubt that the defendant, JACKIE RAY WILLIAMS, either acting with REBECCA JANE TAYLOR or with PETE DeLaROSA a/k/a ANGEL PECERO, or with both, as a party to the offense, as that term is hereinbefore defined, did knowingly and intentionally, in Deaf Smith County, Texas, on or about the 24th day of June A.D., 1980, enter a habitation without the effective consent of Travis McGaughey, the owner, and therein attempted to commit and committed theft, then you will find the defendant guilty of Burglary of a Habitation, (emphasis added).

The indictment charges that the appellant committed the alleged offense by acting together with Rebecca Jane Taylor and Pete DeLaRosa a/k/a Angel Pecero. This theory was submitted to the jury in the fifth paragraph of the charge. However, by charging in the disjunctive in the eighth paragraph, the court submitted two different and less onerous theories for conviction (i.e. either acting with Rebecca Jane Taylor or with Pete DeLaRosa) which are not alleged in the indictment. In this regard, it is settled that the trial court commits reversible error “when the charge to the jury authorizes conviction on the theory alleged in the indictment and on one or more other theories not alleged in the indictment.” Cumbie v. State, 578 S.W.2d 732, 734 (Tex.Cr.App.1979). As the court pointed out in Cumbie, the condemned charge “permit[s] conviction on proof different from (and sometimes less than) that required to prove the allegations in the indictment.” Id.

We readily acknowledge that disjunctive charges have been approved in certain instances where the indictment conjunctively charges two or more statutorily defined methods for committing the alleged offense and the evidence at trial raises each method of commission. Cowan v. State, 562 S.W.2d 236, 240 (Tex.Cr.App.1978). However, that rule is not applicable in this instance. The indictment in the present case does not conjunctively or otherwise allege two or more statutorily defined methods of commission. As stated above, the indictment merely states that appellant committed the alleged offense by “acting together with Rebecca ... and Pete [i.e. one method of commission].” Thus, under this indictment, the court could not properly have charged in the disjunctive or otherwise on the less onerous and unalleged theories of conviction. See Kahanek v. State, 83 Tex.Cr.R. 19, 201 S.W. 994, 995 (1918). Accordingly, we sustain the appellant’s second ground of error.

Although our disposition of the second ground of error requires a reversal of the conviction, grounds one, four and five present matters which we address in view -of a retrial on remand.

By his fourth ground of error, the appellant claims that the trial court committed reversible error by overruling his motion to dismiss the indictment because the indictment fails to allege an essential element of the offense charged (i.e. that Travis McGaughey, the owner, “had a greater right to the possession of the property than did the Appellant”). We disagree.

In pertinent part, the indictment reads: that JACKIE RAY WILLIAMS, who is hereinafter styled Defendant, acting together with Rebecca Jane Taylor and Pete DeLaRosa a/k/a Angel Pecero, on or about the 24th day of June, A.D., 1980, and anterior to the presentment of this indictment, in the County and State aforesaid, did then and there knowingly and intentionally enter a habitation without the effective consent of Travis McGaughey, the owner, and therein attempted to commit and committed theft, (emphasis added).

Section 30.02(a)(3) provides that “(a) a person commits an offense if, without the effective consent of the owner, he ... (3) enters a building or habitation and commits or attempts to commit a felony or theft.” (emphasis added). In Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (on State’s Motion for Rehearing), the Court of Criminal Appeals stated that where the Legislature has established offenses and the elements constituting them, and those terms and elements are further defined in the Penal Code,

[T]he definitions of the terms and elements are essentially evidentiary and need not be alleged in the indictment. This is, in effect, the general rule that, subject to rare exceptions, an indictment which tracks the words of the penal statute in question is legally sufficient. Phillips v. State, supra; May v. State, supra; and Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978). Thus, only “owner” need be alleged with no further elaboration. Id. at 161. (emphasis added).

In the present ease, the indictment essentially tracks the statute by alleging “without the effective consent of Travis McGau-ghey, the owner,” thus no further elaboration in the indictment is essential. The fourth ground is overruled.

By his fifth ground of error, the appellant maintains that the trial court erred by overruling his motion to prevent proof of alleged void convictions and by allowing proof of such prior convictions at the punishment phase of the trial. We disagree.

In the present case, the enhancement provisions of the indictment read:

Before the commission of the offense alleged above, hereinafter styled the primary offense, on the 13th day of August, 1971, in Potter County, Texas, in Cause Number 15168A, styled the State of Texas VS Jackie Ray Williams, in the 47th District Court in and for Potter County, Texas, the Defendant was convicted of the felony of robbery by assault.
Before the commission of the primary offense, and after the conviction in Cause Number 15168A was final, the Defendant committed the felony of burglary and was convicted in Potter County, Texas, on the 17th day of November, 1975, in Cause Number 16958A, styled the State of Texas KS Jackie Ray Williams, in the 47th District Court in and for Potter County, Texas; (emphasis added).

The appellant claims the indictment in cause number 15168A for robbery by assault is fatally defective because the indictment fails to allege an essential element of the offense (i.e. that property was taken “with the intent to appropriate the same to his own use” as prescribed by the Penal Code in effect at the time of the alleged offense). The record shows that the appellant and another person were jointly indicted for robbery by assault on Jack Bell. That indictment alleges that the offense occurred on 30 July 1971. Article 1408 of Tex.Penal Code Ann. (Vernon 1925), the Penal Code in effect at that time, provided:

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

In pertinent part, the indictment in 15168A reads:

that BRACE MURPHY and JACKIE WILLIAMS hereinafter called defendants on or about the 30th day of July, A.D., 1971, and anterior to the presentment of this Indictment, in the County of Potter and State of Texas, in and upon Jack Bell did make an assault and did then and there by the said assault, and by violence to the said Jack Bell, and by putting the said Jack Bell in fear of life and bodily injury, fraudulently, and without the consent of the said Jack Bell take from the person and possession of him, the said Jack Bell a quantity of dangerous drugs, to-wit: nembutal capsules, the same being the property of the said Jack Bell, with the intent to deprive the said Jack Bell of the same, and to appropriate the same to their, the said defendants’ own use_ (emphasis added).

This indictment essentially tracks the robbery assault statute in effect at the time of the charged offense. The indictment specifically alleges that property was taken from Jack Bell with the intent: (1) to deprive the said Jack Bell of the same; and (2) to appropriate the same to their, the defendants’ own use. Thus, the appellant’s challenge to the indictment in cause no. 15168A is overruled.

The appellant further claims that the indictment for burglary in cause no. 16953A is fatally defective because “no definition is given to the term ‘owner’ as used in such indictment.” In pertinent part, the indictment in 16953A reads:

that JACKIE WILLIAMS hereinafter called defendant on or about the 5th day of August, A.D., 1975, and anterior to the presentment of this Indictment, in the County of Potter and State of Texas, did then and there knowingly and intentionally, with intent to commit theft, enter a habitation which was not open to the public, without the effective consent of David Williamson, the owner.... (emphasis added).

The indictment charged the appellant under § 30.02(a)(1) of the Texas Penal Code. The indictment essentially tracks the statute by alleging “without the effective consent of David Williamson, the owner,” thus no further elaboration is essential. See Thomas v. State, 621 S.W.2d 158, 161. The appellant’s challenge to the indictment in cause no. 16953A is overruled. Accordingly, the fifth ground is overruled.

By his first ground of error, the appellant maintains that the trial court committed reversible error by overruling his motion to suppress and by admitting evidence seized in the search of a car in which he was found. Again, we disagree.

The appellant was charged by indictment with the offense of burglary of a habitation in Deaf Smith County, Texas, allegedly committed on or about 24 June 1980. The appellant and two other individuals were arrested in Amarillo, Texas, at approximately 11:00 p.m. on 24 June 1980. The record shows that earlier in the evening hours of 24 June 1980 there was an armed robbery of Jerry’s Pharmacy in Amarillo. At approximately 9:00 p.m. on that day, Amarillo police officer Steven Jefferson was the first officer to arrive at the scene of the armed robbery. By speaking to some of the witnesses, he received an initial description of “two white males and one white female involved in the incident and a green over black or black over green older model Chevrolet was involved in it and had left Jerry’s Pharmacy south.” This description was expanded by a broadcast over the police radio. Officer Jefferson testified that he heard the later description. This description added that the license plates read MFP-987, that one male suspect wore a cowboy-type hat, that the other male suspect wore mirror-type sunglasses and that the female had an afro hairdo. At approximately 10:50 p.m., Officer Jefferson, in response to a call concerning a parked vehicle that “did not belong,” observed a green over black Chevrolet bearing license plates WFP-978 and containing the appellant, Mr. De La Rosa and Mrs. Taylor; they were “slumped over or passed out.” The appellant had on a cowboy hat, De La Rosa was wearing mirrored sunglasses and Mrs. Taylor had her hair in an “afro-type” style; all as described over the police radio. Officer Jefferson further observed some syringes and cigarettes on the back seat, thought to be among the items taken in the Jerry’s Pharmacy robbery.

After the appellant and the two other individuals were arrested, handcuffed and removed from the car, the vehicle was briefly searched by back-up officer David Lee, who then drove it to the police station. A more extensive search was conducted at the station. In this regard, the record shows that the officers were searching for the fruits of the armed robbery at Jerry’s Pharmacy. The record further shows that a pink satchel was sitting on the back seat of the vehicle within the officer’s plain view. A search of the pink satchel revealed a key to the trunk of the car. A search of the trunk disclosed items of property which were the fruits of the habitation burglary in Deaf Smith County.

Under the first ground of error, the appellant first contends that the police officers’ warrantless search of the automobile conducted at the police station after his earlier arrest violated the fourth amendment of the United States Constitution. We disagree.

It is settled that the essential inquiries in a warrantless search are: (1) if there was probable cause for the search; (2) if the failure to obtain a warrant was excusable because the search was incidental to a lawful arrest or justified by some exigent circumstances; and (3) if the scope of the search was consistent with its purpose. Maldonado v. State, 528 S.W.2d 234, 239 (Tex.Cr.App.1975). See also Wilhelm v. State, 426 S.W.2d 850 (Tex.Cr.App.1968). However, relying on Maldonado, and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, the appellant specifically argues that the search was not incidental to his arrest because the automobile was removed from the arrest scene and searched at the police station.

In Maldonado, the defendant was arrested at the Comal County Courthouse at 9:00 a.m. on 31 August 1973. The truck the defendant had been driving prior to his arrest had been removed to the police garage. At 3:00 p.m. on 31 August 1973, the police searched the truck at the police garage and found contraband property (i.e. marihuana). The court held that the search was not incidental to the arrest because it was conducted six hours after the arrest and at a place other than the arrest scene.

In the present case, the appellant’s reliance on Maldonado is misplaced. Under circumstances similar to those presented in this instance, the court determined in Wilhelm v. State, 426 S.W.2d at 852-53, that the search was incidental to a lawful arrest. In Wilhelm, the defendant was arrested on probable cause, the vehicle was briefly searched at the arrest scene, and then the defendant and the vehicle were removed to the police station where a more extensive search of the vehicle was continued.

In further support of his contention, the appellant points out that the court in Preston stated that: “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to arrest.” 376 U.S. at 367, 84 S.Ct. at 883. However, in Wilhelm, the court acknowledged the statement from Preston and stated:

“It is doubtful if Preston should be interpreted to mean a police officer must under all circumstances search or complete the search of the vehicle at the moment of arrest when an equally prudent course of action would be to move the vehicle to a more convenient or suitable location for the search.”
jfc * ⅜ ⅜: * ⅜
“We are inclined to believe that the holding in Preston turned upon the lack of continuity in purpose by the arresting officers there.” [citations omitted].

426 S.W.2d at 853, and Taylor v. State, 421 S.W.2d 403, 408 (Tex.Cr.App.1967). Thus, under the circumstances in this instance, we conclude that the police officers’ continued search of the vehicle at the police station, which began at the arrest scene, did not violate the fourth amendment of the United States Constitution. See Wilhelm v. State, 436 S.W.2d at 850; Arwine v. Bannan, 346 F.2d 458 (6th Cir.1965), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed.2d 123 (1965); United States v. Dento, 382 F.2d 361 (3rd Cir.1967).

Under the first ground of error, the appellant further maintains that the search of the pink satchel and the trunk violated the fourth amendment to the United States Constitution. The appellant’s brief was filed in the present case before the court’s decision in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Ross the court stated:

We hold that the scope of the warrant-less search authorized by that exception [i.e. the automobile exception stated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ] is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search, (emphasis added).

Thus, in the present case, we conclude that: (1) the police officers’ warrantless search of the vehicle was predicated on probable cause; (2) the appellant’s warrantless arrest was predicated on probable cause, see Edwards v. State, 344 S.W.2d 687, 689 (Tex.Cr.App.1961); Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Williams v. State, 621 S.W.2d 609, 611-12 (Tex.Cr.App.1981), and the cases cited therein; (3) the search of the vehicle was incidental to the appellant’s lawful arrest; and (4) the scope of the search was consistent with its purpose (i.e. to find contraband from the armed robbery at Jerry’s Pharmacy). Accordingly, we overrule the appellant’s first ground of error.

The appellant’s remaining grounds of error do not present matters which would require a different result in the case and, further, do not present matters which are likely to reoccur in a new trial; therefore, we do not further address those grounds of error. Accordingly, the judgment of conviction is reversed and the action is remanded for a new trial.

       Apparently, this indictment was taken from the time-tested form stated in S. Willson, Texas Criminal Forms Annotated § 1950 (6th ed. 1956).