author: ROBERTSON, Justice. ELLIS, Justice,

text:
    Irvin LEWIS, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-140-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.

      Ken J. McLean, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

The jury rejected appellant’s plea of not guilty, found him guilty and assessed punishment at confinement for eight years and a fine of $974.64. Issues on this appeal are (1) whether there was compliance with the Speedy Trial Act and (2) whether appellant received ineffective representation by trial counsel.

Since the sufficiency of the evidence is not challenged, there is no reason to summarize the facts of the offense.

In his second ground of error, appellant contends the trial court erred in denying his motion to dismiss “for want of a speedy trial ... when the state’s attempted post 120 day announcement of ready did not aver readiness within 120 days.” We disagree.

The record discloses that on the day appellant’s case was called for trial, February 21, 1983, he filed a short “Motion to Dismiss” alleging that the date of the commencement of the cause of action was March 26, 1982 and that “more than 120 days have passed since the commencement of this action.” Appellant’s trial counsel submitted no evidence in support of the motion, but merely stated to the court:

Mr. Smith: Your Honor, if I may attempt to state the facts as I understand them and what the court’s file would reflect, Mr. Lewis had been arrested and made bond back in March, 1982. There was an appearance date set I believe for April 12, 1982, at which time Mr. Lewis did not appear. Any calculations for my motion is based upon the time after the re-arrest as opposed to counting any time which he was not appearing before the court. He was re-arrested on October 20th, I believe.
On or about December 1st I believe the docket sheet is going to reflect an announcement of ready by the prosecution. Although that is reflected there was no one present, no witnesses present. I quite frankly would not consider that actually ready for trial, because no one was there for trial except for the defendant.
There have expired over 120 days since October 20th until today, the date that Mr. Lewis is brought to trial; and on that basis under the Speedy Trial Act I would ask the court to dismiss this action.

These statements of counsel, of course, are not evidence, but in light of Canada v. State, 660 S.W.2d 528, 530 (Tex.Crim.App.1983), it appears appellant is entitled to rely upon them since the recitation “had properly placed the event in the record.”

Considering the record as a whole, we are able to discern the following events. The charge against appellant was filed on March 24, 1982, and he was arrested. After making bond, appellant failed to appear for his arraignment on April 15, 1982. Appellant’s bond was forfeited and he was rearrested on October 20, 1982, according to appellant’s counsel. The docket sheet reflects that appellant appeared in court and was arraigned on November 1, 1982. At the arraignment hearing, the case was reset for December 1, 1982 for hearing motions. On December 1, 1982, the docket sheet reflects that appellant’s case was reset for February 21, 1983 for jury trial. Although the docket sheet does not disclose that the state announced ready for trial on December 1, 1982, appellant’s trial counsel stated that, in fact, the state did announce ready on that date. The first actual announcement of ready, as reflected by the record, is when the state responded to appellant’s Motion to Dismiss on February 21, 1983:

MR. BUCHANAN: The State would respond in that the State has been in contact with several of the witnesses including the witness who would be necessary witnesses at the original trial setting who would include Mr. Bancroft, Mr. Victor, Detectives Mueller, Mavis, Hightower, Sherrie Hale as well as Ed Perkins from the bank who would also if present at this time testify that he was ready and in fact had searched his records to determine that the checking account that the check was drawn on had indeed been closed prior to the date that the check was written.
The State would maintain it has been ready for trial at all times. Any delay has not been intentional delay by the prosecutor. My understanding is also that the defendant in this case, Irvin Lewis, also bond forfeited at one time.

Thus it appears that, without regard to what we accept as “the facts”, the trial court correctly denied the motion to dismiss. First, if the announcement of the prosecutor on February 21 that “it has been ready for trial at all times” is to be given effect, this announcement must stand absent some contrary showing by appellant. Secondly, even if it becomes necessary to actually compute the number of days during which the state had not announced ready, appellant is in no better position to assert this ground of error. The period from April 15 through October 20 (while appellant was at large on a bond forfeiture) is to be excluded. Likewise, the period between November 1 and December 1 (the resetting agreed to by both sides for appellant to file motions) is to be excluded. On December 1, the trial court set the case for a jury trial on February 21, 1983. This period, likewise, is to be excluded because it matters not whether this resetting was agreed to by the attorneys or it was the first available date the court could set the ease for trial. In the first instance, the time would be excluded because it was agreed to by appellant, .and in the second instance, the act does not apply to delays caused by congested court dockets. So, no matter how the computation is made, appellant’s rights guaranteed by the Speedy Trial Act were not violated. Appellant’s second ground is overruled.

In his first ground, appellant contends he was denied effective assistance at trial “when his counsel failed to investigate and, then, cause to be set aside a prior forgery probation, which was premised upon a fundamentally defective information, thereby causing the application for probation to be withdrawn which adversely affected the sentencing proceeding.” As a predicate for discussion of appellant’s contention, we refer to the record where the following is found.

Present counsel was appointed on March 3, 1983 to represent appellant on appeal following his conviction and notice of appeal on February 25,1983. No motion for new trial was filed and the record was approved without objection on June 14, 1983. Faced with this approved record, appellant’s present and well experienced counsel must have realized he was faced with the problem of a “totally inadequate record,” as we pointed out in Dunn v. State, 650 S.W.2d 139, 140 (Tex.App.— Houston [14th Dist.] 1983) to sustain a charge of ineffective assistance of counsel. The record only revealed that appellant filed a written election to have the jury assess punishment and a written motion for probation. After appellant testified at the punishment phase of the trial and admitted he had previously been convicted of forgery and had been granted probation, his trial counsel withdrew the motion for probation. This, obviously, would not provide any basis for sustaining a charge of ineffective assistance of counsel.

His energetic and innovative appellate attorney, however, deciding to get additional facts made a part of the appellate record, took the following steps:

1. On July 11, 1983, he filed with this court a pleading entitled “Motion to Extend Time to File Brief” in which he set out the facts as shown by the record concerning the filing and withdrawal of the application for probation. Additionally, however, the motion alleges that the “prior conviction was bottomed upon a fundamentally defective information” and, that “[a]ppellant ... has a habeas hearing set on August 2, 1982 and intends to supplement the record in this cause with testimony from same.” The prayer to the motion was “counsel herein seeks an extension until the 1st day of September, 1983, ... so that counsel may file a Motion to Supplement this record with same. Accordingly, this Court would have a record that speaks the truth”. This court denied this motion on July 21, 1983, but did extend the time for appellant to file his brief to August 1, 1983.

2.Four days later, on July 25, appellant filed with this court a pleading entitled “Motion to Abate Appeal,” which in addition to containing the allegations of the above-referenced motion, further alleged that the appeal presented “issues relating to whether appellant received effective representation of counsel concerning the withdrawal of the application for probation.” The motion further alleged:

[T]he appeal should be abated in the interest of judicial economy. If the eviden-tiary hearing is not conducted at this point, and the direct appeal is affirmed, appellant would have to file an application for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure to develop the issues. Appellant is sure that it has been noted that his counsel is court-appointed on this direct appeal and, of course, the presumption exists that one who is indigent on the appeal would be too poor to retain a habeas attorney. The procedure is available which would allow the issues to be developed at this time.

Finally, appellant’s prayer was that “this Court order the appeal abated and order the trial court to conduct an evidentiary hearing on the issues raised herein.” Again, this court denied the motion on August 4, 1983, but since a brief had not been filed by the August 1 deadline, this court, sua sponte, abated the appeal and remanded the cause to the trial court so that it could see that appellant received effective assistance of counsel on appeal.

3. Thereafter, on August 8, appellant filed a motion for rehearing, pleading, in effect, for the results previously sought. This motion was overruled on August 18, 1983.

4. Thereafter, on September 15, 1983, appellant filed in this court his “Petition for Discretionary Review to the Court of Criminal Appeals of Texas.” By such proceeding he sought an abatement of the appeal for the same reason advanced to this court, his prayer being,

[F]or the reasons herein advanced, Appellant prays that this Court accept this Petition, reverse the Court of Appeals, abate the appeal and remand the cause to the trial court for a hearing on the issues raised by Appellant’s Motion and Brief.

The court of criminal appeals refused such petition on January 11, 1984.

5. Thereafter, on February 22, 1984, appellant filed in the trial court his “Motion for Evidentiary Hearing” which was almost identical to his motion filed in this court and the court of criminal appeals and concluded with the request “that the trial court conduct an evidentiary hearing to determine whether he received effective assistance of counsel; therefore, making the Record speak the truth.” The trial court granted appellant’s request; the hearing was held on April 3, 1984. By docket sheet entry, the court ordered the court reporter to transcribe the testimony heard, and the transcript in now a part of the record before this court.

Appellant asserts that we should consider this evidence as support for his contention that he was denied effective assistance of counsel. He argues that since the information alleging the offense of forgery for which he had previously been convicted was fundamentally defective, the failure of his trial counsel “to discover an invalid prior conviction shows that counsel’s conduct was deficient and ineffective; and, that this inferior performance prejudiced appellant from receiving fair consideration from the jury on the issue of penalty.” On the other hand, the state challenges our consideration of this evidence developed at the hearing because this court had previously denied permission to supplement the record and the court of criminal appeals had refused review.

As authority for this court and the court of criminal appeals to abate the appeal and order the trial court to conduct the eviden-tiary hearing requested, appellant relied upon Guillory v. State, 638 S.W.2d 73 (Tex.App.— Houston [1st Dist.] 1982). We did not then, nor do we now, consider such case as authority for the appellate court to abate the appeal and order the trial court to conduct a hearing on an issue that was never brought to the attention of the trial court. That is a proper subject for post conviction habeas corpus.

Without so stating, appellant apparently relies upon Tex.Crim.Proc.Code Ann. art. 40.09 (Vernon 1981), for the authority of the trial court to supplement the record so that “the record [(sic) will] speak the truth.” We are not called upon by the facts before us in this case to determine when, after notice of appeal has been given, the trial court can, if ever, order a supplementation of the record. The narrow issue before us is the authority of the trial court to conduct a hearing and supplement the appellate record with a transcript of that hearing when the appellate court has already denied such a hearing.

This court has previously held that the trial court does not have the authority to do so. Smith v. State, 681 S.W.2d 71 (Tex. App.—Houston [14th Dist.], 1983, pet. granted). Nor does the fact that the hearing was held after we had ordered the appeal abated alter the rule. The appeal was abated on order of this court so that the trial court could assure appellant received effective assistance of counsel on appeal. As stated earlier, the issue of effective representation before the trial court was never raised in the trial court and it, therefore, had no authority to cause the record “to speak the truth” about a matter that was not a part of the record. We refuse to permit the record to be supplemented in the manner sought by resourceful counsel, for to do so would open Pandora’s Box. Appellant is not denied the right to properly assert his claim; he is merely required to follow established procedure and assert it in a post-conviction proceeding.

Having refused to consider the evidence heard by the trial court on appellant’s motion to supplement the record, there is no evidence to support appellant’s claim of ineffective assistance of counsel, and the ground is overruled.

The judgment is affirmed.

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the other members of the panel, I would like to record my respectful dissent.

The evidence of appellant’s guilt is overwhelming. At trial Sherry Hale, an employee of O’Brien’s Food Market, identified a picture that showed the check which she cashed and the person who represented himself as Robert Morgan, the check’s payee. This photograph was taken by Sherry Hale when she cashed the check. It was a split image picture of the check and appellant’s face. Appellant handed her the check and a Department of Public Safety identification card which contained his photograph, but listed his name as Robert Morgan. Mrs. Hale wrote the identification card number on the back of the check before cashing it. Constable John Victor, who had known appellant for thirty (30) to thirty five (35) years, testified that he was shown the picture taken at the O’Brien Market and he identified appellant as the man who was allegedly Robert Morgan. M.A. Mueller, a Baytown police detective, recalled that Constable Victor identified a picture of a man who passed the forged check at O’Brien’s and a picture from the Department of Public Safety as that of appellant. When Mueller arrested appellant, over a year later, the detective found on appellant’s person a driver’s license issued to Marc Allen Duncan of Houston with a picture of appellant. The president of Casual, Inc., the drawer of the check, testified that no one, other than himself, had authority to sign a check on the company’s account and that he did not authorize Paula J. Beasley, who signed for the company, or Robert Morgan to pass the check.

Appellant testified on his own behalf. He admitted that he had driver’s licenses in the names of Irvin Lewis, Marc Allen Duncan, and Freddie Brown. He denied signing or presenting the forged check.

Before trial, appellant filed his application for probation, swearing that he had never before been convicted of a felony. However, during the punishment hearing appellant testified that he had been granted probation for a forgery conviction in 1977. After the testimony at the punishment stage of the trial, appellant’s trial attorney asked permission of the court to withdraw appellant’s application for probation. Appellant was permitted to withdraw his application for probation.

The trial court appointed a different attorney to represent appellant on appeal. On June 14, 1983, the record was approved by the trial court and on June 21, 1983, it was received and filed with this Court. On July 11, 1983, appellant filed his “Motion to Extend Time to File Brief”. In his motion, appellant asked for an extension of 50 days in which to file his brief so that the record, in the interim, could be supplemented by testimony from a hearing scheduled in the trial court on August 2, 1983, on his application for a writ of habeas corpus. On July 21, 1983, this Court denied appellant’s motion to extend time to supplement the record and instructed appellant to file his brief by August 1, 1983.

On July 25, 1983, appellant’s counsel filed a motion to abate the appeal to allow an evidentiary hearing to be conducted on the issue of the effectiveness of appellant’s trial counsel. On August 4, 1983, this Court denied appellant’s request to abate the appeal. Instead, this Court issued a per curiam opinion in which it abated the appeal on its own motion to allow the trial court to take remedial action to assure that a brief is filed in behalf of appellant who is indigent. On August 6, 1983, appellant filed a motion for rehearing on the denial of his motion for abatement to conduct an evidentiary hearing. On August 18, 1983, this Court overruled appellant’s motion for rehearing.

On September 15, 1983, appellant filed a Petition for Discretionary Review to the Court of Criminal Appeals in which he complained that this Court had erred in denying his motion to abate the appeal for an evidentiary hearing to determine whether his trial counsel had provided effective assistance. On January 11, 1984, appellant’s petition for discretionary review was refused by the Court of Criminal Appeals. On February 22, 1984, appellant filed a Motion for an Evidentiary Hearing in the trial court in which he again requested a hearing to determine whether appellant received effective assistance of counsel at trial. The trial court granted the appellant’s request and the evidentiary hearing was conducted on April 3, 1984. Thereafter, the supplemental record was completed and finally approved by the trial court on May 18, 1984. This supplemental record was filed with this court on May 21, 1984.

Appellant’s first ground of error alleges that appellant was denied effective assistance of counsel because his trial attorney failed to have set aside a prior forgery probation conviction which caused appellant’s probation application to be withdrawn. Appellant alleges that his prior probation was premised upon a fundamentally defective information.

The State in its brief requests us to disallow the supplementation of the record. The record was supplemented, though we denied such a request, during a period of abatement due to appellant’s counsel failure to file a brief. The State argues that if we accept the supplementation, our approval of counsel’s actions would throw the entire appellate process into disorder.

I do not think it is a matter of approving counsel’s actions. Rather, it is a question of whether the trial court had power to conduct the evidentiary hearing after the appellate process had started and then abated, when we had denied a request for such a hearing. I believe that the trial court did have the power to conduct the evidentiary hearing. The trial judge may, under TEX.CODE CRIM.PRO.ANN. art. 40.09(7) (Vernon Supp.1984), conduct a hearing to make the record speak the truth where the record is incorrect as to what transpired at trial or where the record is silent as to the truth of what occurred at trial. Schroeder v. State, 543 S.W.2d 382 (Tex. Crim.App.1976). Article 40.09(7) provides in part:

... If the trial court deems that a supplemental record or any other modification of the record be necessary to make the record speak the truth, for any reason, with or without objections from the state or the defendant, and whether on the court’s own motion or the motion of either party or by order of the court of appeals or the Court of Criminal Appeals, the defendant and the state shall be notified by certified or registered mail of same and be given five days from receipt of notice for objections to such modification or supplementation.

In fact, once a case is abated, it is abated for all purposes. “After receipt of the appellate court’s mandate of abatement, the trial court still has control over the case until the supplemental record again reaches the appellate court.” Duncan v. Evans, 653 S.W.2d 38, 40 (Tex.Crim.App. 1983), quoting 26 Tex.Jur., Criminal Law, Section 4195, page 533.

In many cases, the Court of Criminal Appeals said the abatement should be treated as if no appeal had been filed in the appellate court: Williams v. State, 458 S.W.2d 932 (Tex.Crim.App.1970) (where no transcription of court reporter’s notes nor appellate brief in the record and abatement was for trial court proceedings as if appeal had not been filed, which may include providing the appellant with effective aid of counsel on appeal); Weeks v. State, 459 S.W.2d 639 (Tex.Crim.App.1970) (where there was in the record no transcription of reporter’s notes and no appellate brief had been filed on behalf of defendant, appeal abated for trial court proceedings as if appeal had not been filed to determine whether appellant was indigent and whether trial counsel should be allowed to withdraw); Akin v. State, 464 S.W.2d 652 (Tex. Crim.App.1971) (where no transcription of the court reporter’s notes and no appellate brief in the record and appeal was abated for trial court proceedings as if the appeal had not been filed). Judge Patricia Lykos was acting within her power when she held the evidentiary hearing. Appellant’s appellate attorney stated on the record that the purpose of the hearing was to “determine or make the record ... speak the truth.” I would accept the supplementation of the record.

Since I would accept the supplemented record, I will now determine if appellant was denied effective assistance of counsel. The Supreme Court in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established a two prong test to determine if counsel’s assistance was so defective as to require reversal of a conviction. The court requires that:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant maxes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

After a review of the totality of representation, I find that appellant has demonstrated that he was denied effective assistance of counsel. Appellant has met the first prong of the test by showing that his attorney’s performance was deficient. Appellant asserts that his prior conviction was based upon a fundamentally defective information. The-allegedly defective information, which appears in the supplemental transcript, reads in pertinent part:

“... and with the intent to defraud and harm, forge the writing duplicated below by passing it (knowing it was forged) to BEATRICE MORENA....”

The Court of Criminal Appeals has held that a forgery indictment which fails to allege that the writing purported to be the act of another “who did not authorize that act” rendered the indictment fundamentally defective. Minix v. State, 579 S.W.2d 466, 467 (Tex.Crim.App.1979); Ex Parte Davis, 583 S.W.2d 794, 795 (Tex.Crim.App. 1979). Under Minix and Ex Parte Davis, the information was clearly defective. Appellant’s trial attorney should have filed a post conviction application for writ of habe-as corpus to have the prior felony probation conviction set aside and declared void. Ex Parte Ormsby, 676 S.W.2d 130 (Tex. Crim.App.1984). Instead, he failed to investigate whether appellant’s prior felony conviction was a valid conviction. If he had investigated the prior conviction, he would have discovered that the conviction could be set aside and declared void because it was based on defective information.

As for the second part of the Strickland test, I find that the attorney’s deficient performance prejudiced appellant’s defense and deprived him of a fair trial, one with reliable results. If the prior probation conviction had been set aside, the jury would never have known of the previous conviction. Appellant could have maintained his application for probation and the jury could have considered his application for probation. Clearly, appellant was denied effective assistance of counsel.

I feel that this case should be reversed because the appellant was denied a fair trial.


source: Caselaw Access Project

author: MURPHY, Justice.

license: Public Domain

text:
    James Xavier MILTON, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-702CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.

      Mollie Childs, Houston, for appellant.
    Don Clemmer, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

James Milton, appellant, was found guilty of aggravated assault and punishment was assessed by the jury at seven years confinement. Appellant complains on appeal of alleged errors in the jury charge and of a prior conviction improperly being considered during the punishment phase. Additionally, appellant contends the trial court erroneously limited his cross-examination of a witness for the state. We find no error and affirm.

Appellant and the deceased, Audrey Hunt, lived together at 8305½ Corinth, in Houston, as husband and wife for a period of approximately one year, beginning June of 1982. On the morning of May 1, 1983, appellant left home to go to work. He finished work early that day and upon returning home, discovered Ms. Hunt with another man, identified only as Michael. Appellant attacked Michael and threw him out of the house. He then started a violent argument with Ms. Hunt. Appellant beat Ms. Hunt repeatedly in the face and about her body, continuing his assault even after she had collapsed on the floor.

As a result of the beating, Ms. Hunt was severely ill and unable to walk the next day. She was taken to the hospital that day, where the attending physician diagnosed an acute abdomen, which is the medical terminology used to describe severe abdominal pain or distress. An operation was immediately performed. The surgeon discovered severe damage to the intestinal organs, caused by a blunt trauma. She was never able to regain her health and died on June 15, 1983.

Expert testimony at trial established that the deceased died as a result of complications arising from injuries sustained to her abdominal area. Evidence was offered establishing numerous past illnesses suffered by her, but the expert unequivocally stated that they were unrelated to the cause of death.

In his first ground of error, appellant claims the trial court failed to submit the offense of aggravated assault in the jury charge by omitting the word “serious” from the phrase “bodily injury” in the application paragraph. Appellant failed to raise this objection at trial, therefore to warrant reversal, this omission must constitute fundamental error. Jackson v. State, 591 S.W.2d 820 (Tex.Crim.App.1979); Tisdell v. State, 626 S.W.2d 130 (Tex.App.—Houston [14th Dist.] 1981, no pet.) Additionally, we may appropriately consider the charge as a whole to determine whether it contains fundamental error calculated to deprive the appellant of a fair trial. Robinson v. State, 596 S.W.2d 130 (Tex.Crim.App.1980); Jackson, 591 S.W.2d at 825.

Citing no authority, appellant contends the charge is fundamentally defective because it authorized conviction on a finding of less than all the requisite elements of aggravated assault, specifically serious bodily injury. We disagree. A review of the entire charge reveals the trial court so worded the application paragraph that the jury was required to find death had occurred in order to find appellant guilty of aggravated assault. The court, in a previous paragraph, defined serious bodily injury as a bodily injury that created a substantial risk of death or that causes death, serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Accordingly, the jury necessarily found the element of serious bodily injury existed. Ground of error one is overruled.

Appellant next urges that the trial court erred in charging the jury on the offenses of murder and aggravated assault, because the state introduced some evidence of sudden passion. Once again, appellant fails to direct the court’s attention to any authority which supports his proposition. Additionally, appellant did not raise this objection at trial and has therefore waived any error. Parker v. State, 649 S.W.2d 46 (Tex.Crim.App.1983), cert. denied, — U.S. -, 104 S.Ct. 496, 78 L.Ed.2d 689 (1983). However, even if appellant had not waived the error, the fact that appellant’s confession, as offered by the state, raised the issue of sudden passion in no way bound the jury to find such a fact as true. The credibility of the witnesses and the weight to be given their testimony, as well as the resolution of conflicts in the testimony and other evidence, are within the exclusive province of the jury. Penagraph v. State, 623 S.W.2d 341 (Tex.Crim.App.1981). The trial court was free to charge the jury on murder and aggravated assault. See Burks v. State, 510 S.W.2d 321 (Tex.Crim.App.1974). Ground of error number two is overruled.

Appellant contends in his third ground of error that the trial court improperly submitted a copy of a judgment of a prior conviction. However, this ground does not comport with the objection raised at trial and thus presents nothing for review. Rovinsky v. State, 605 S.W.2d 578 (Tex.Crim.App.1980). Further, appellant acknowledged this conviction when he testified in his own behalf, therefore no harm has been demonstrated. Ground of error three is overruled.

In his final ground of error, appellant claims the trial court erroneously limited his cross-examination of the medical examiner. Defense counsel questioned the medical examiner concerning the deceased’s prior medical history and hospital admissions. The doctor stated that these past health problems bore none of the responsibility for complainant’s death. However, counsel continued his inquiry into this area, at which point the trial court sustained an objection by the state and refused to permit such further questioning. In light of the medical examiner’s testimony, coupled with the testimony of two other attending physicians confirming the absence of relevancy of the deceased’s prior medical history to her death, appellant has failed to demonstrate the materiality of the attempted cross-examination. See Hicks v. State, 482 S.W.2d 186 (Tex.Crim.App.1972); Stewart v. State, 640 S.W.2d 643 (Tex.App.—Houston [14th Dist.] 1982, no pet.). No harm or error is shown and ground of error number four is overruled.

The judgment of the trial court is affirmed.


author: PAUL PRESSLER, Justice.

text:
    Don L. CLARK, Appellant, v. STATE of Texas, Appellee.
    No. B14-84-286CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.

      Don Ervin, Houston, for appellant.
    Don Clemmer, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from a conviction of possession of cocaine.

Early in the morning, police officers on patrol observed appellant leave a lounge and enter a nearby abandoned, rotting building. One of the officers testified that because of the area, their past experience and numerous drug arrests made in the area, they investigated. As they entered the darkened building, they saw the silhouette of appellant who was standing on the stairway facing them. Appellant had pulled down a large clear bag from above him, and as they shined a flashlight on him, he reached to put a smaller bag into his pocket. Appellant was startled by the light and threw both bags over his head. One of the officers retrieved the bags from the ledge where he had thrown them. The large bag was filled with a number of smaller bags, each of which contained a white powdery substance. One of the officers testified that because they had made hundreds of drug arrests, they believed the bags contained cocaine, and they arrested appellant.

Appellant pled not guilty to possession of cocaine as charged in the indictment. The court found him guilty and assessed punishment at five years confinement in the Texas Department of Corrections, probated for five years, and a five hundred dollar fine. We affirm.

In his sole ground of error, appellant claims the trial court erred in denying his motion to suppress evidence, as it was a warrantless arrest made without probable cause in violation of his constitutional right to be free from unreasonable searches and seizures.

Defendants charged with crimes of possession may invoke the exclusionary rule only if their Fourth Amendment rights have been violated. United States v. Salvucci, 448 U.S. 83, 86, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980). The defendant must show that he had some legitimate expectation of privacy that was improperly intruded upon by government agents. Rakas v. Illinois, 439 U.S. 128, 144, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Manry v. State, 621 S.W.2d 619, 621 (Tex.Crim.App. 1981); Lewis v. State, 598 S.W.2d 280, 283 (Tex.Crim.App.1980). The “reasonable expectation of privacy standard” includes prosecutions for possession of narcotics. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

Appellant had no legitimate expectation of privacy in the building where he was arrested. The building was badly rundown, there was no evidence of any “No Tresspassing” signs and the property was not fenced. There was nothing to indicate the building could have been or was being used for residential or business purposes. There was not a door at the front entry. The officers did not enter the building illegally. “Hundreds” of drug arrests had been made in the area previously.

A police officer may arrest an offender without a warrant for any offense committed in his presence or within his view. TEX.CODE CRIM.PRO.ANN. art. 14.01b (Vernon 1977). The test for probable cause for an arrest without a warrant is:

Whether at that moment the facts and circumstances within the officer’s knowledge and of which (he) had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (arrested person) had committed or was committing an offense.

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Britton v. State, 578 S.W.2d 685, 689 (Tex.Crim.App. 1979), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328; Gonzales v. State, 638 S.W.2d 41, 44-45 (Tex.App.—Houston [1st Dist.] 1982, pet. ref’d).

The evidence was sufficient to provide probable cause for the arrest. The trial court did not err in admitting the bags of cocaine into evidence. Appellant’s ground of error is overruled.

The judgment is affirmed.


author: ELLIS, Justice.

text:
    Jimmy David LEE, Appellant, v. STATE of Texas, Appellee.
    Nos. B14-84-289-CR, C14-84-290-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.
    Michael Lamson, Houston, for appellant.
    Rory Flynn, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ. ,
   OPINION

ELLIS, Justice.

This is a consolidated appeal from the judgments of conviction for the offenses of driving while intoxicated and of unlawfully carrying a weapon. After his motion to suppress evidence was denied, appellant, Jimmy David Lee, plead nolo contendere. The court, following the recommendation of the State, sentenced appellant to three (3) days in jail and a two hundred dollars fine for the weapon charge and sixty (60) days confinement in the Harris County Jail, probated for two (2) years, and a fine of two hundred dollars for driving while intoxicated. We affirm.

Appellant has two grounds of error on appeal. In his first ground of error he alleges that the initial stop and detention of him was a mere pretext to search for and obtain information, and any evidence seized in the search that followed the stop must be suppressed. In his second ground of error, he asserts that the trial court abused its discretion by overruling appellant’s motion to suppress when the State failed to discharge its burden of proving the war-rantless search of appellant’s car was reasonable.

On December 16,1983, in the early morning hours, Houston Police Department Officers Tomlinson and Mercer were parked outside a topless club. As they were waiting for a suspect to come out, they saw appellant turn off Richmond Avenue and park in a service station lot. As the car turned off the street, the officers noticed that appellant’s car. did not have a front license plate. The officers pulled in behind appellant to investigate the lack of the license plate. Officer Tomlinson testified that they walked to appellant’s car, and appellant got out of the car, leaving his car door open. As appellant stepped to the rear of the car to show Officer Mercer his driver’s license, Officer Tomlinson observed a pistol in plain view beside the front seat of the car. Appellant was arrested for carrying a weapon. Appellant also gave the officers another pistol which was in his pocket. Officer Tomlinson testified that his partner and he asked appellant if he wanted one of his female passengers to drive his car home and appellant declined. The officers inventoried the car’s contents, before turning it over to the wrecker driver who towed it to a storage lot. They found a .12 gauge shot gun, a magazine clip for the pistol, and a Mandrex tablet. (Appellant also was charged with possession of a controlled substance. That charge was later dismissed as part of the plea bargain agreement).

Appellant filed a pre-trial motion to suppress. In that motion he asked the court to suppress any firearms, alleged controlled substances, the results of sobriety tests, and the testimony of the police officers who stopped appellant.

The manager of Sugar’s, the topless club across the street from where appellant parked, was called as a defense witness. He testified that the hedges were so high around the service station lot that the officers could not have seen appellant pull in.

Deborah Golding and Melaney Cole, the passengers in appellant’s car, also testified. Golding was a topless dancer at a club owned by appellant. She testified that appellant closed his door after he got out and that the officer was inside the car involved in a search when he found the gun. Cole was also a topless dancer at appellant’s club. She testified that appellant’s door was “brought to” after he got out and that the officer had to pull on the car door to get in the car. She also supported Golding’s version of the facts concerning the discovery of the gun, that is that the officer was involved in a search when he found the gun.

Appellant testified on his own behalf. He stated that his request to have the car driven by anybody with a driver’s license went ignored. He later spoke to the wrecker driver who agreed to drive the car away. He said it was not possible for the officer to have seen the gun.

We do not agree with appellant’s first ground of error which asserts that any evidence must be suppressed since the initial stop and detention of appellant was a mere pretext to obtain information. Appellant argues that since Officer Tomlinson did not notice the alleged traffic violation until the car was on private property and the offense requires the lack of a front license plate on public property, there was no traffic offense which would have justified the stop. Appellant cites several facts to support his pretext contention: that no citation was ever issued; that Officer Tom-linson admitted that he was looking for a man driving appellant’s type of car; that a passenger in appellant’s car testified that the officers discussed where the machine gun was hidden; that a narcotics stake out was interrupted in order to stop appellant. Appellant contends that all of the facts show that appellant’s stop and detention was only a mere pretext.

We find that the initial stop was not a mere pretext to obtain information. Rather, it was a bona fide stop for a traffic offense. The officer testified that he noticed that appellant lacked a front license plate before appellant left public property. Therefore, there was an actual offense according to Tex.Rev.Civ.Stat.Ann. art. 6675a-3e, Sec. 5 (Vernon 1977).

Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for physical evidence.

Taylor v. State, 421 S.W.2d 403, 407 (Tex. Crim.App.1967), cert. denied, 393 U.S. 916, 89 S.Ct. 241, 21 L.Ed.2d 201 (1968). In the instant case the police made an arrest for another offense unexpectedly discovered during the course of their investigation. In a pre-trial motion to suppress evidence the trial court is the exclusive finder of fact and may choose to believe or disbelieve any or all of a witness’ testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App. 1980); Bradley v. State, 655 S.W.2d 256, 258 (Tex.App.— Corpus Christi 1983, no pet.). The officer testified that appellant’s gun was in plain view and apparently the trial court believed him since the motion was overruled. Under Taylor, evidence of a criminal violation in open view allows the officer to arrest for that offense. Ground of error one is overruled.

In his second ground of error, with which we also disagree, appellant claims that the State failed to discharge its burden of proving the reasonableness of the war-rantless search. He argues that the testimony of Officer Tomlinson was the only evidence to support the reasonableness. The officer testified that appellant, as he exited his car, left the door open and the gun’s handle was in plain view. Appellant argues that the testimony of appellant and three other witnesses established a different set of facts, that is, that appellant closed his door behind him and that the officer was engaged in a full search of the car’s interior when he found the gun. Appellant contends that the record, taken as a whole, clearly demonstrates that the State failed to discharge its burden. However, as already stated, in a pre-trial motion to suppress evidence, the trial court is the exclusive finder of fact and may choose to believe or disbelieve any or all of the witness’ testimony. Taylor, 604 S.W.2d 175; Bradley, 655 S.W.2d 256, 258. Appellant seeks to relitigate the facts of his arrest which is impossible. Since the trial court is the exclusive finder in the pre-trial motion, we find that the trial court did not abuse its discretion by overruling appellant’s motion to suppress. Ground of error two is overruled.

Accordingly, the judgment of the trial court is affirmed.


text:
    Ex parte Harvey Marvin BAUM, Appellant, v. STATE of Texas, Appellee.
    No. B14-84-583CR to B14-84-585CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.
    Stanley Schneider, Houston, for appellant.
    Winston E. Cochran, Jr., Asst. Crim. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

PAUL PRESSLER, Justice.

In three indictments appellant was accused under TEX. PENAL CODE ANN. § 31.03(c)(3) of theft by receiving. Prior to trial he filed applications for writs of habe-as corpus in each cause. These were denied by the trial court. We affirm.

In the first ground of error, appellant contends that the pertinent section is unconstitutional in that it creates a mandatory presumption and thus violates the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 9 and 10 of Article I of the Texas Constitution. The portion of the Section to which objection is made states that a person in the business of buying or selling secondhand property is presumptively guilty of theft by receiving if he possesses stolen property valued at twenty-five dollars or more and fails to have proper records concerning it.

The constitutionality of a statute may be attacked by a pretrial application for writ of habeas corpus when it is shown that the court will rely on the statute. See Ex Parte Crisp, 661 S.W.2d 944 (Tex.Crim. App.1983) (en banc). The attack in Crisp, however, was made on a proposed amendment to a statute under which appellants were indicted.

To charge a person properly with the offense of theft by receiving stolen property, the State must allege in the charging instrument that the theft of the property has occurred, that the accused appropriated the property, and that when he appropriated it he knew it had been stolen by another. Dennis v. State, 647 S.W.2d 275, 280 (Tex.Crim.App.1983) (en banc). These elements were correctly alleged in the indictments before us. The presumption created in the statute does not have to be alleged in the indictment. Whether or not the presumption is applied and how it is applied are fact questions which can be decided only at trial. It has nothing to do with the indictments by which appellant is charged. Thus the constitutionality of the presumption is prematurely before this court. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends § 31.03(c)(3) is unconstitutionally vague and ambiguous. This contention is without merit. The last sentence of subsection (3)(iii) states: “It is the express intent of this provision that the presumption arises unless the actor complies with each of the numbered requirements.” TEX. PENAL CODE ANN. § 31.03(c)(3) (Vernon Supp.1984). This provision resolves any question of ambiguity. Appellant’s second ground of error is overruled.

We affirm.


text:
    Jack Lynn HOFFART, Appellant, v. The STATE of Texas, Appellee.
    No. B14-84-361CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 17, 1985.
    Rehearing Denied Feb. 7, 1985.

      Richard W. Schumude, Tomball, for appellant.
    John B. Holmes, Dist. Atty., Rory C. Flynn, Asst. Dist. Atty.; Houston, for ap-pellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is an appeal from the judgment of conviction of the offense of criminal trespass. Appellant, Jack Lynn Hoffart, pled not guilty. The jury found him guilty and assessed his punishment at thirty (30) days in jail, probated for six (6) months, and a fine of $500. We affirm.

Appellant is a member of Life Advocates, an anti-abortion group. For approximately a year, he had picketed outside of clinics which performed abortions. On February 4, 1984, appellant was picketing outside the West Loop Clinic, a private women’s clinic which performed abortions, among other services. Appellant had picketed outside the West Loop Clinic on several occasions. Several employees of the clinic testified that they told appellant not to protest inside the building, although appellant denies being warned.

Evicel Ortega, the clinic administrator, testified that on the day of appellant’s arrest, February 4, 1984, a patient complained to her that appellant was upsetting her. Ortega asked appellant, who was at the clinic door, not to come in the clinic. She testified that appellant left and went back to his usual pacing on the public sidewalk. Ortega stated that appellant later came into the waiting area of the clinic with a sign and began talking and motioning. Officer Piccolo, who worked an extra job at the clinic as a security officer and who previously told appellant on other occasions not to enter the building, arrested him for criminal trespass.

Appellant brings twenty-three (23) grounds of error on appeal. We will handle them within four broad categories: (1) pre-trial motions, (2) trial, (3) jury instructions, and (4) sentencing.

I. PRE-TRIAL MOTIONS

Three grounds of error complain of the way the court handled the pre-trial motions. In ground of error one appellant asserts that the trial court erred when it denied his pre-trial motion to compel the clinic to produce the names, addresses, and telephone numbers of all females who were in the clinic’s waiting room when appellant entered the clinic. He claims those witnesses were needed to support his denial and justification defenses. His second ground of error states that the trial court erred when it denied appellant’s motion to reconsider. We do not think that appellant presents any error in either ground. Originally the information read:

Jack Lynn Hoffart, hereafter styled the Defendant, heretofore on or about February 4, 1984, did then and there unlawfully and with notice that entry was forbidden, intentionally and knowingly enter and remain in a building owned by Carol Kofalt, hereafter styled the Complainant, without the effective consent of the Complainant.
It is further presented that in Harris County, Texas, Jack Lynn Hoffart, hereafter styled the Defendant, heretofore on or about, February 4, 1984, did then and there unlawfully intentionally and knowingly enter and, after receiving notice to depart, remain in a building owned by Carol Kofalt, hereafter styled the Complainant, without the effective consent of the Complainant.

The State, in mid-trial, moved to dismiss the second paragraph of the information and the judge charged the jury as follows:

... if you believe from the evidence beyond a reasonable doubt that the Defendant, JACK LYNN HOFFART, did, in Harris County, Texas, on or about the 4th day of February, 1984, with' notice that entry was forbidden, intentionally or knowingly enter or remain in a building owned by CAROL KOFALT, without the effective consent of CAROL KOFALT, you will find the defendant guilty.

Since the second paragraph of the information was dropped, appellant did not need the names of the women in the waiting room. The requirement of “receiving notice to depart” was eliminated and, therefore, the testimony of the people in the waiting room became irrelevant.

Ground of error twelve also complains of a pre-trial error. He argues that the trial court erred in denying his pre-trial motion to dismiss the information because the criminal trespass statute was unconstitutionally applied in his case. He alleges that it infringed upon his constitutional right to free speech. We disagree. The clinic was justified in excluding appellant from its property. A privately run clinic is not a public forum for First Amendment purposes. The Supreme Court noted in Central Hardware Co. v. NLRB, 407 U.S. 539, 547, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122 (1972):

Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. The First and Fourteenth Amendments are limitations on state action, not on action by the owner of private property used only for private purposes. The only fact relied upon for the argument that Central’s parking lots have acquired the characteristics of a public municipal facility is that they are “open to the public.” Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut [Amalgamated Food Employees Union Local 590 v.] Logan Valley [Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603] entirely away from its roots in Marsh [v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265]. It would also constitute an unwarranted infringement of long-settled rights of private property protected by the Fifth and Fourteenth Amendments.

The clinic has more aspects of private property than public property. Appellant’s right to free speech was not infringed on and the criminal trespass statute was not unconstitutionally applied to him. Ground of error twelve has no merit.

II. TRIAL ERROR

Appellant brings eight grounds of error asserting trial error. His thirteenth ground alleges that the trial court erred in refusing to allow appellant to introduce medical evidence at trial. The evidence concerned, among other things, the point at which human life begins, development characteristics of the unborn child, and the effects of an abortion upon the unborn child. Appellant claims that such evidence was relevant and material to his justification defenses. He also claims that the evidence would corroborate a portion of appellant’s testimony at trial. In his fourteenth point of error, appellant argues that the trial court erred in sustaining the State’s objection to a question posed to three witnesses (two witnesses at the clinic and a clinic employee) on abortion activities at the clinic. Again, appellant claims that such evidence was material to appellant’s defenses and would corroborate portions of appellant’s testimony. He also asserts that such evidence would show bias by some clinic employees who testified against appellant. The excluded material, we hold, was irrelevant to this criminal trespass ease. We will handle the matter of his defenses later.

Grounds of error sixteen and twenty allege error because the trial court excluded from evidence examples of the clinic’s advertisements (from a TV newspaper supplement and the yellow pages) and a copy of the clinic’s lease. Those issues are merely conclusory statements without elaboration or authority. Appellant has failed to cite any authority to support his position. As such, they fail to comply with TEX.CODE CRIM.PRO.ANN. art. 40.09, § 9 (Vernon Supp.1984), and preserve nothing for review. Phillips v. State, 511 S.W.2d 22, 25-26 (Tex.Crim.App.1974) and Daniel v. State, 486 S.W.2d 944, 948 (Tex. Crim.App.1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1433, 35 L.Ed.2d 692 (1973).

Appellant’s seventeenth ground of error alleges that the trial court erred in denying appellant’s motion for a directed verdict of not guilty or a judgment of acquittal because the evidence was insufficient to support a verdict of guilty. Appellant has failed to preserve this point adequately by failing to cite additional authority. Phillips, 511 S.W.2d at 25-26; Daniel, 486 S.W.2d at 948. Even if the question were properly preserved, there would be no error.

Appellant’s challenge to the sufficiency of the evidence ignores the fact that on appeal, the sufficiency of the evidence is to be viewed in the light most favorable to the verdict. “The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. A jury is entitled to accept one version of the facts and reject another or reject any of a witness’ testimony.” Pena-graph v. State, 623 S.W.2d 341, 343 (Tex. Crim.App.1981). When viewed in this light, the evidence was more than sufficient to sustain conviction.

The eighteenth ground of error claims that the trial court erred in overruling appellant’s trial objection to the State’s question, addressed to appellant, as to the goal of the Life Advocates. Appellant claims that the court’s error made it appear that the Life Advocates and appellant were attempting to take away the abortion rights of the all woman jury. Appellant’s objection to the question was, “I don’t think that’s relevant.” The objection was properly overruled. The objection was general and preserved nothing for review. Smith v. State, 513 S.W.2d 823, 829-30 (Tex.Crim.App.1974).

His fifteenth ground of error alleges that the trial court erred in sustaining the State’s objection to appellant’s question of a Houston police officer concerning the names and addresses of the witnesses in the clinic’s waiting room. He claims that such testimony would show the officer’s bias and would impeach the officer, and that the trial court erred in not allowing appellant to develop the testimony. There was no abuse of discretion. Rovinsky v. State, 605 S.W.2d 578, 580 (Tex.Crim.App.1980).

Appellant’s ground of error nineteen asserts error because the trial court sustained the State’s objection to a question concerning whether appellant felt that the sidewalk area provided adequate space to talk to the women. Appellant argues that the question was designed to elicit relevant and material evidence to appellant’s defense of free speech. We find that no error has been preserved. Before appellant could answer, the prosecutor objected and the trial court sustained that objection. Appellant made no bill of exceptions as to what appellant would have said and, therefore, error was not preserved. Toler v. State, 546 S.W.2d 290, 295 (Tex.Crim.App.1977); Stein v. State, 514 S.W.2d 927, 930 (Tex.Crim.App.1974).

III. JURY INSTRUCTIONS

Appellant complains of the jury instructions in eleven (11) grounds of error. Grounds of error number nine and twenty-two assert that the trial court erred in refusing to instruct the jury on the defense of free speech. The requested charge, which is a misstatement of the law, suggests that the jury should interpret the law. The trial court, as we have already discussed, correctly decided that the criminal trespass statute was not unconstitutionally applied to appellant. Appellant was not entitled to a second determination by the jury.

In nine other grounds of error appellant asserts that the trial court committed error in not instructing the jury on the following defenses: defense of third person, defense of protection of life or health, defense of necessity, defense of mistake of fact. Appellant also complains of rejected requests to instruct the jury on other forms of notice. We hold that all of appellant’s rejected defenses and instructions were not raised by the evidence and appellant was not entitled to any of the rejected defenses or instructions. Brooks v. State, 642 S.W.2d 791, 799 (Tex.Crim.App.1982).

IV. SENTENCING Appellant in his last ground of error complains of the court’s sentencing. The court required as a condition of probation that appellant “not enter upon the premises of any establishment that you are picketing the outside of.” He alleges that the conditions of appellant’s probation placed a prior restraint on appellant’s exercise of his United States and Texas Constitutional rights. In his reply brief appellant cites Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971) and New York Times Co. v. United States, 403 U.S. 713, 715, 91 S.Ct. 2140, 2142, 29 L.Ed.2d 822 (1971) for the proposition that prior restraints on expression carry a heavy constitutional presumption against its constitutional validity. He argues that the condition imposed by the court is an outright prohibition of the right of free speech. We disagree. The condition is not a prohibition on the right of free speech. Following the principles of modern property law, the trial court properly, within constitutional dictates, limited appellant’s right to free speech.

Accordingly, the judgment of the trial court is affirmed.


author: BOYD, Justice.

text:
    Leslie REYNOLDS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-83-0267-CR.
    Court of Appeals of Texas, Amarillo.
    Jan. 23, 1985.

      Brown, Harding, Fargason & Brown, Clifford W. Brown, Lubbock, for appellant.
    Jim Bob Darnell, Dist. Atty., Hollis M. Browning, Asst. Dist. Atty., Lubbock, for appellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   BOYD, Justice.

Appellant Leslie Reynolds brings this appeal from his conviction by a jury of the offense of driving while intoxicated and the consequent court-assessed punishment of a $350.00 fine and ten days confinement in the Lubbock County Jail. In his one ground of error, appellant contends the trial court erred during the voir dire examination of the jury panel in refusing to instruct that panel to disregard the assertedly prejudicial comments of a venireman gratuitously made, and in thereafter denying appellant’s motion for a mistrial. We disagree with appellant’s contention and affirm the conviction.

The record reveals the following colloquy as appellant’s counsel was questioning panelist French during the jury selection process:

MR. BROWN: Mr. French, would your answers, if I asked you the same questions that I asked Mr. Long there beside you, would your answers be the same?
MR. FRENCH: I am a bit prejudice [sic]. This past Saturday—
MR. BROWN: Excuse me. May I suggest this, it’s best we don’t go into any details. But are you saying that you are prejudice [sic] concerning the offense of DWI?
MR. FRENCH: I’m afraid so. Yes, sir.
MR. BROWN: Then, Your Honor, I submit the juror’s qualifications. We appreciate your candor, Mr. French, because that’s the purpose of this part of the trial. I submit the juror’s qualifications, Your Honor.
THE COURT: Do you have any questions?
MS. McELROY: Whatever happened last Saturday, do you feel like you could set that experience aside and come into the courtroom and listen to the facts as given to you?
MR. FRENCH: No, ma’am. I was almost involved in an accident evading someone who had been drinking and turned out in front of me.
MS. McELROY: I have no objections, Judge.
THE COURT: I want to thank you for your candor, sir. That’s what this is all about.
(THE JUROR WAS EXCUSED)
MR. BROWN: Your Honor, may we approach the bench, please?
THE COURT: Yes
DISCUSSION AT THE BENCH OUT OF THE HEARING OF THE JURY PANEL
MR. BROWN: May it please the Court. I would like to record my objection to the Court calling upon the State for comment because it is not permitted by statute, first, and, secondly, because it revealed specific information that the Jury was not properly entitled to receive relating to a matter that is not properly in evidence in the case. And I object because it is calculated to be very prejudicial to have something like that brought out in the trial of the case. So I object and ask the Court to instruct the Jury not to consider for any purpose the statement made by the juror on the voir dire by the State.
THE COURT: I will deny your request.
MR. BROWN: Your Honor, I move for a mistrial because I believe that the matter is prejudicial. And I must request a mistrial at this time.
THE COURT: I will deny your request for a mistrial.
MR. BROWN: Note my exception, please.

Appellant argues that once venireman French’s prejudice against the offense of driving while intoxicated and, he argues, by extension against appellant was shown, the court erred by allowing the prosecutor to interrogate French further. In this connection, we note that appellant made no objection until after French made the comment giving rise to this appeal. Therefore, appellant has preserved nothing for appellate review concerning the court’s action in permitting the State’s additional examination of French, since an objection must be made at the earliest opportunity. Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App. 1980); Evans v. State, 445 S.W.2d 180, 183 (Tex.Crim.App.1969).

Moreover, we do not believe the court erred in allowing further exploration of French’s qualifications after appellant’s challenge to him for cause. At the time of the challenge, French’s only statement was that he felt a prejudice concerning the offense of driving while intoxicated. The reasons for challenge for cause of a juror are listed in Tex.Code Crim.Pro.Ann. art. 35.16 (Vernon Pamp.Supp.1984). Among those which are included is a showing:

2. That he has been convicted of theft or any felony;
3. That he is under indictment or other legal accusation for theft or any felony;
4. That he is insane; ⅜ * ⅜ # ⅜ ⅜?
9. That he has a bias or prejudice in favor of or against the defendant.

Tex.Code Crim.Pro.Ann. art. 35.19 (Vernon Pamp.Supp.1984) provides that only the enumerated causes 2, 3 and 4 in article 35.16 operate as absolute disqualifications for jury service.

It follows that French’s statement did not reveal an absolute disqualification for jury service and the trial judge properly allowed further inquiry to determine whether or not French did have a bias which would result in his disqualification. Neel v. State, 658 S.W.2d 856, 857 (Tex. App.—Dallas 1983, pet. ref’d); Tex.Code Crim.Pro.Ann. arts. 35.16 and 35.19. In arguing that French’s answer showed he was prejudiced as a matter of law and that the court should not have permitted any further interrogation, appellant places primary reliance upon the reasoning of the court and the authorities cited by it in Anderson v. State, 633 S.W.2d 851 (Tex. Crim.App.1982). Appellant quotes the statement of that court that “[w]hen a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside and provide a fair trial.” (Emphasis in original.) Id. at 854. We note that the court immediately follows the above statement with the comment, “However, it is left to the discretion of the trial court to first determine whether or not bias exists. Where the juror states he believes that he can set aside any influences he may have, and the trial court overrules a challenge for cause, its decision will be reviewed in light of all of the answers the prospective juror gives.” (Emphasis added.) Id. We think the trial court’s action here in question was permissible in pursuance of its obligation to determine whether or not a bias, disqualifying him under the statute, actually existed. Our conclusion in this regard is strengthened by the general rule that the conduct of a voir dire examination rests within the sound discretion of the trial court and only an abuse of that discretion will call for reversal on appeal. Clark v. State, 608 S.W.2d 667, 669 (Tex.Crim.App.1980); Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim.App.1975).

Moreover, and importantly, beyond his claim of harm, appellant has not shown that any of the other members of the ve-nire were influenced to appellant’s prejudice or that any other prospective juror who may have held a similar bias was forced upon him. Under these circumstances, we cannot presume error. See Johnson v. State, 151 Tex.Cr.R. 110, 205 S.W.2d 773, 774-75 (1947). Additionally, during oral argument of this cause, appellant’s able counsel acknowledged to the court that, although not shown in the record, questions similar to those directed to French were thereafter addressed to the other prospective jurors and failed to disclose any similar prejudice.

Although caution would suggest that the trial court should have instructed the jury panel to disregard French’s statement, the court did, in its charge, instruct the trial jury that:

The defendant is presumed to be innocent and he may not be convicted of this offense unless each element of this offense is proved beyond a reasonable doubt. The fact that he has been arrested or confined, and charged by information with this offense, gives rise to no inference of guilt at his trial. The burden is upon the State of Texas to produce competent evidence sufficient to prove the defendant guilty beyond a reasonable doubt before you can find him guilty of the charge in the information, and if the State of Texas fails to prove such charge, to your satisfaction, beyond a reasonable doubt, you will acquit the defendant and say by your verdict, not guilty.

This is the functional equivalent of the requested instruction.

In arguing that the failure to give the instruction to disregard mandates reversal, appellant places primary reliance upon Pena v. State, 114 Tex.Cr.R. 29, 29 S.W.2d 785 (1930). In that case, which was a prosecution for a liquor law violation, the statements of the prospective jurors which were made in the presence of the entire panel were directly related to that appellant. One of the veniremen said he had gotten the impression that the appellant was a bootlegger, and he understood there were eight indictments pending against him. Another said that he had heard much about the appellant and had the impression that his reputation was bad, and further that he had a fixed opinion that the appellant was a bootlegger. Still another stated that he had heard that the appellant was a bootlegger and he had received this information partly from appellant’s counsel, who was district attorney at the time he (the counsel) made the statement. The question on appeal was whether the trial judge should have given an instruction in his charge to the jury to disregard “the fact that other indictments may have been returned against this defendant.” The court held that, under the facts there existent, the requested charge should have been given.

The facts in the case sub judice are quite different. Here, even apart from the want of appellant’s demonstration of harm, Gordy v. State, 159 Tex.Cr.R. 390, 264 S.W.2d 103, 105 (1953); Johnson v. State, 205 S.W.2d at 774-75, any inference which may have been derived from French’s statement of an incident foreign to appellant’s case was oblique, any effect of which was adequately dispelled by the instruction in the jury charge. Absent a contrary showing, we must presume the jury followed the trial court’s instruction. Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim.App.1975).

There being no reversible error, the judgment is affirmed.


text:
    Bill Dee STATEN, Appellant, v. STATE of Texas, Appellee.
    No. A14-82-828CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.
    See also 662 S.W.2d 672.

      Michael Maness, Houston, for appellant.
    Timothy Taft, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Bill Dee Staten appeals a jury conviction for promotion of obscenity in violation of TEX.PENAL CODE ANN. § 43.21 and § 43.23 (Vernon Supp.1985). The trial court assessed punishment at thirty days’ confinement and a five hundred dollar fine. Appellant presents six grounds of error. We affirm.

Appellant, a clerk in an adult bookstore, did not testify in his own behalf. The following information is taken from the testimony of Houston Police Department Vice Officer, G.P. Gillespie. In the course of his undercover operations, Officer Gillespie entered the bookstore, selected a magazine enclosed in a clear cellophane wrapper from the shelves, then placed it face down on the counter in front of appellant. Officer Gillespie then stated, “I hope it’s good,” whereupon appellant allegedly responded, “Yeah, it is.” Appellant accepted payment, placed the magazine in a paper sack, and handed it to the officer. The officer testified that there was an adults only sign outside the store, no magazines were present other than ones similar to the one sold, and sexual devices were also displayed for sale. Appellant appeared to be the only employee on duty.

We have reviewed the magazine in question and have made an independent determination that the material contained therein is constitutionally obscene. See Andrews v. State, 652 S.W.2d 370, 383-384 (Tex.Crim.App.1983) (en banc). The magazine, entitled “Disco Cowgirl,” contains photographs and written descriptions of patently offensive representations of ultimate sex acts. The average person, applying contemporary community standards in the state of Texas, would find that the magazine taken as a whole would appeal only to those having a prurient interest in sex. This material is hard-core pornography and lacks serious literary, artistic, political, or scientific value. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973).

Appellant contends that his conviction must be reversed because the State presented insufficient evidence to prove beyond a reasonable doubt that he knew the “content and character” of the magazine sold, as required by the statute. Appellant asserts that the record merely shows (1) that he had the opportunity to view the back cover of the magazine and, (2) that he assured the customer that the merchandise was good, as any salesman would. He argues that this evidence is insufficient to prove that he actually knew he was selling obscene material.

As authority for his position, appellant cites Shealy v. State, 675 S.W.2d 215 (Tex. Crim.App.1984) (en banc). The Shealy opinion indicates in dicta that the prosecution must prove that a defendant had knowledge of the content and character of a magazine by more than the fact that he viewed covers containing sexually explicit pictures. Appellant alleges that even if he did in reality see the cover of the magazine, this fact would still be inadequate according to Shealy to prove that he knew the magazine’s content and character.

In judging the sufficiency of the evidence, we review the record in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Skinner v. State, 652 S.W.2d 773, 776 (Tex.Crim. App.1983) (en banc). We believe the evidence was adequate to convict. The United States Supreme Court has stated, “Eyewitness testimony of a bookseller’s perusal of a book hardly need be a necessary element in proving his awareness of the contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.” Smith v. California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959). The circumstances in the present case are sufficient to allow a reasonable jury to infer that appellant was aware of the nature of the business and that he knew the content and character of the magazine. See also Beier v. State, 681 S.W.2d 124 (Tex.App. —Houston [14th Dist.] 1984, pet. granted).

Although Shealy says one may not judge a book by its cover, surely the covers of such a magazine and a defendant’s opportunity to view them are still elements of evidence which, when combined with other relevant evidence, would allow a jury to convict beyond a reasonable doubt. The covers of this magazine contain highly explicit photographs of sex acts between a man and a woman; for example, a picture of a partially clad male actually performing sodomy on a nude female and a picture of a partially clad female performing fellatio on a partially clad male. These pictures portray actual, not simulated, sex acts. The other relevant elements in this case are as follows: (1) an adults only sign outside the store; (2) no “regular” magazines such as Time or Newsweek, only ones similar to the one sold; (3) sexual devices (bullet-shaped vibrators) displayed for sale; (4) appellant’s response that the magazine was good; and (5) the fact that appellant appeared to be in sole and exclusive control of the store. While no one element is adequate to convict, the combination of all the elements listed above, along with the magazine’s covers and appellant’s opportunity to view them, are sufficient to allow the jury to find appellant guilty of promotion of obscenity.

We are aware of a similar case from the Houston First Court of Appeals that reaches the opposite conclusion: Gonzales v. State, 676 S.W.2d 437 (Tex.App.—Houston [1st Dist.] 1984, pet. filed). This case relies heavily on Shealy’s language in holding the evidence insufficient. We cannot agree with the First Court of Appeals that Shealy allows a jury to completely ignore the magazine’s cover and all the other circumstances of the sale. The cover of a magazine should be considered as one brick in the wall of circumstantial evidence needed to convict a defendant under this statute. We believe our approach is not in conflict with Shealy and is the better method of interpreting and enforcing the obscenity statute. We will adhere to this approach until the Court of Criminal Appeals instructs us further. This ground of error is overruled.

Appellant next contends in three grounds of error that the trial court improperly instructed the jury that it should evaluate the magazine in terms of the community standards of “tolerance” within the geographical region of Harris County. Appellant acknowledges that he requested these instructions. However, he contends that they allowed the jury to convict him under an improper standard, since the instructions should have been worded in terms of the community standards of “decency” within the state of Texas. He argues that this fundamental error requires reversal.

The Court of Criminal Appeals has stated that use of the term “decency” instead of “tolerance” in TEX.PENAL CODE ANN. § 43.21(a)(4) is not unconstitutional. Andrews v. State, 652 S.W.2d at 381. In upholding the statute, the Court of Criminal Appeals indicated that it makes no difference whether the term “decency” or “tolerance” is used in the statute, so long as the legislation provides sufficient guidance to the trier of fact in identifying material that is obscene according to the judgment of the average person in the community. The court expressed its satisfaction that the statute provides the necessary guidance. The Court of Criminal Appeals has further defined the geographical “community” as a state-wide region, not merely a county area. Brewer v. State, 659 S.W.2d 441, 442 (Tex.Crim.App.1983) (en banc).

With reference to the jury charge in question, we find that use of the standard of “tolerance” within the geographical area of Harris County, while not technically correct, was not fundamental error. As he states in his brief, appellant specifically requested this charge in reliance upon the decision of the Houston First Court of Appeals that use of the standard of “decency” in the obscenity statute was unconstitutional. Andrews v. State, 639 S.W.2d 4, 9 (Tex.App.— Houston [1st Dist.] 1982), aff'd in part and rev’d in part, 652 S.W.2d 370 (Tex.Crim.App.1983) (en banc). Appellant claims he should not be penalized for relying on the law as it stood at the time of trial. However, we do not feel that appellant has been penalized by the circumstances of this case.

Appellant was tried under the community standard of “tolerance.” “Tolerance” is a more lenient concept than “decency” and operates in favor of a defendant charged with promotion of obscenity. See also Andrews, 639 S.W.2d at 9. However, even with the standard of “tolerance,” the jury was still able to properly identify the material in question as being obscene. See Andrews, 652 S.W.2d at 377-382. Secondly, use of the large metropolitan area of Harris County was also more favorable to appellant than use of a statewide area that would include the generally more conservative views of citizens in the smaller cities and rural areas of Texas.

We will not reverse a case for an improper jury charge unless the error was “calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” TEX.CODE CRIM.PROC. ANN. art. 36.19 (Vernon 1981). In appellant’s case, the jury charge operated in his favor, was specifically requested by his counsel, and still allowed the jury to properly identify obscene material according to the spirit of Andrews v. State, 652 S.W.2d 370 (Tex.Crim.App.1983) (en banc). Since we do not find the error to be fundamental, appellant is in no position to complain of the wording in a charge that he requested. See Ayers v. State, 606 S.W.2d 936, 938 (Tex.Crim.App.1980). These three grounds of error are overruled.

Appellant next contends that the evidence fails to establish that the magazine depicts representations of simulated anal intercourse, sexual intercourse, and sodomy, as alleged in the criminal information. The information specifically alleged “representations of actual and simulated anal intercourse, sexual intercourse, and sodomy.” (Emphasis added). Appellant asserts that the conviction must fail because the evidence only revealed depictions of actual activities and no simulated activities. However, the State may charge in the conjunctive and prove in the disjunctive. See Zanghetti v. State, 618 S.W.2d 383, 387-388 (Tex.Crim.App.1981). We also overrule this ground of error.

Finally, appellant contends that TEX.PENAL CODE ANN. § 43.21 and § 43.23 (Vernon Supp.1985) are unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States because they define community standards in terms of “decency” rather than “tolerance.” The Texas Court of Criminal Appeals foreclosed this argument in Andrews v. State, 652 S.W.2d at 370, and appellant acknowledges that he has included this ground of error to preserve his right to Federal habeas corpus review.

Because we find no reversible error, we affirm the judgment of the trial court.


author: JUNELL, Justice.

text:
    Willie James COLLINS, Appellant, v. STATE of Texas, Appellee.
    No. C14-84-317CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.

      Bobbi Blackwell, Houston, for appellant.
    Lori B. Millberg, Houston, for appellee.
    Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

JUNELL, Justice.

Appellant was convicted by a jury of burglary of a habitation. Finding an enhancement paragraph true, the jury assessed punishment at 50 years in the Texas Department of Corrections. Appellant raises six grounds of error. Finding no reversible error, we affirm.

At about 5:00 a.m. on an October morning the 74-year-old complainant was awakened by her dog barking outside. She heard noises that sounded like someone was trying to break into her house, first from the front porch, and then from the back. She tried to call police, but her phone was dead. She rushed out the front door, ran across the street and summoned her neighbors, the Jayroes, for help. Mrs. Jayroe reached by telephone a Harris County Sheriff’s Department dispatcher. Mrs. Jayroe stayed on the phone advising the dispatcher of events as they happened until a patrol car came. Mr. Jayroe went outside and stood in his driveway looking toward the complainant’s house. He saw a man walk down the complainant’s driveway and enter a brown and white car. The car began to move slowly toward Mr. Jayroe’s house. Within a few minutes Deputies Ward and Collins arrived in a patrol car, ordered the appellant out of the brown and white car and arrested him.

Deputy Ward conducted an inventory of the car’s contents and found a cigar box containing mementos and jewelry, a transistor radio, batteries and alarm clock on the back floorboard behind the driver’s seat of appellant’s car. He took the items to the complainant who identified them as hers. There were signs of attempted break-in on the front door and window of the complainant’s house and successful entry through a rear window. The drawer that had held the cigar box was left open and items from a bedroom closet were scattered and broken.

From the above summation of the testimony, it is easy to dispense with appellant’s third and fourth grounds of error. In ground three he contends that the trial court erred in overruling his motion for an instructed verdict because the evidence was insufficient to sustain a conviction. In ground four he complains that the court should have given a “mere presence” instruction as requested. Mere presence at the scene of a crime alone is not sufficient to support a conviction on appeal. Thomas v. State, 645 S.W.2d 798, 800 (Tex.Crim. App.1983); Drager v. State, 555 S.W.2d 743, 745 (Tex.Crim.App.1977). “Mere presence,” however, is not a recognized defense, and we hold it need not be included in jury instructions. The part of the charge instructing the jury on the state’s burden to prove guilt beyond a reasonable doubt adequately protected appellant. Cf Pelham v. State, 664 S.W.2d 382, 385 (Tex. App.— Amarillo 1983, pet. ref d) (appellant not entitled to charge that impossibility is a defense); Burke v. State, 642 S.W.2d 197, 200 (Tex.App.—Houston [14th Dist.] 1982, pet. ref d) (misidentification is not a defensive issue that must be included in charge). Even if mere presence were a defensive issue, the evidence against the appellant did much more than place him in the vicinity of the crime. Mr. Jayroe watched the appellant as he left the complainant’s property until he was arrested with the stolen goods in his car. Unexplained personal possession of recently stolen property is alone sufficient to support a conviction for the burglary in which the property was stolen. Thompson v. State, 615 S.W.2d 760, 761 (Tex.Crim.App.1981); Pulido v. State, 503 S.W.2d 578 (Tex.Crim.App.1974). Grounds of error three and four are overruled.

In his first ground of error appellant contends that the court erred in overruling his objection to the in-court identification of appellant because an improperly suggestive pre-trial identification procedure tainted the in-court identification and denied him due process. It is unclear from his brief whether appellant is complaining of the identification by Mrs. Jayroe alone, or by both Mr. and Mrs. Jayroe. If his ground covers both witnesses it is multifarious and need not be considered. Wilson v. State, 581 S.W.2d 661, 666 (Tex.Crim.App. 1979). In the interest of justice, we will consider the ground as it concerns Mrs. Jayroe’s testimony.

The ground of error as to Mrs. Jayroe can be overruled for two reasons. First, Mrs. Jayroe did not participate in any pretrial identification procedure, let alone improper procedure. She merely was walking across the street with the complainant and a deputy when she saw a black male in the custody of the other deputy. She did not stop. She was not asked if she recognized the man. Second, Mrs. Jayroe did not make a positive in-court identification. She testified only that the defendant resembled the man she saw that night. Appellant’s first ground of error is overruled.

In his second ground of error appellant complains that the trial court erred in denying him a hearing on the admissibility of Mrs. Jayroe’s identification testimony. The appellant first raised his motion to suppress the testimony in a pre-trial motion that was denied as untimely filed. At trial defense counsel again raised his objection and asked for a hearing outside the jury’s presence. The hearing was not granted. We agree that the court should have granted the hearing under Martinez v. State, 437 S.W.2d 842, 848 (Tex.Crim.App.1969). Even if the pre-trial hearing was properly denied, appellant still had a right to a hearing at trial as requested. However, the error was harmless because Mrs. Jayroe made no positive identification.

In his fifth ground of error appellant complains that the cigar box and its contents should not have been allowed into evidence because the deputy returned the stolen items to the complainant the night of the crime instead of following the mandatory procedure outlined in Tex.Code Crim. Proc.Ann. art. 47.01 (Vernon 1979).

The state argues that violation of the article does not require suppression of the evidence returned. This appears to be a ease of first impression on this issue. The cases cited under annotations to article 47.01 are civil suits in which the statute is used as a defense to claims that a person was unlawfully keeping stolen items from the rightful owner. We hold that failure to follow article 47.01 does not require that the evidence be suppressed at trial. The testimony of the complainant established that the items had remained in her custody and were the same items that had been stolen. Chain of custody is not an issue where the items introduced are easily and readily identifiable. Hammett v. State, 578 S.W.2d 699 (Tex.Crim.App.1979) (en banc). The fifth ground of error is overruled.

In his sixth ground of error appellant contends that the trial court should have granted his motion to strike prejudicial statements from the pen packet introduced at the punishment stage of the trial. The pen packet contained proof of a November 12, 1980, conviction for rape of a child and September 1, 1982, conviction for kidnapping.. Appellant first complains that the judgment in the kidnapping case mentions that he was previously convicted of a felony, but that an enhancement paragraph had been abandoned by the state. He also complains of a phrase on the Texas Department of Corrections commitment records that states “Returned as Mand Super Viol Ret’d fr Harris Co. New Conviction Rmdr as 314437 is cone.” From other records in the pen packet it is apparent that the number 314437 was appellant’s prisoner identification number when he was imprisoned on the earlier conviction for rape of a child. He had a new prisoner number when he returned to the Texas Department of Corrections in 1982.

Appellant’s objection on appeal is that the two phrases are references to extraneous offenses not proven as final convictions. The state contends, and we agree, that the two references are probably to the rape of a child conviction that was proved. See Hernandez v. State, 626 S.W.2d 876, 878 (Tex.App.—San Antonio 1981, no pet.). But even if the references were to a third, unspecified felony conviction, the court was not obliged to strike the references from the pen packet. In Redd v. State, 452 S.W.2d 919, 923 (Tex.Crim.App.1970), the fact that indictments in some of the proven convictions contained enhancement paragraphs did not render them inadmissible. The references complained of here are of the same character as enhancement paragraphs in an indictment.

There is still another reason ground of error six should be overruled. Appellant’s objections at trial were that the two references were hearsay. His objection on appeal is on another ground. No error was preserved. Boyd v. State, 643 S.W.2d 700, 706 (Tex.Crim.App.1983); Carrillo v. State, 591 S.W.2d 876 (Tex.Crim. App.1979).

Finding no reversible error the judgment is affirmed.