author: O’BRIEN, Judge.

text:
    STATE of Tennessee, Appellee, v. Albert MACKEY, Jr., Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Nov. 7, 1984.
    Permission to Appeal Denied by Supreme Court March 4, 1985.

      William M. Leech, Jr., Atty. Gen. & Reporter, Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Gregory D. Shanks, Asst. Dist. Atty. Gen., Knoxville, for appellee.
    Blake Ford, Lake City, for appellant.
   OPINION

O’BRIEN, Judge.

This is an appeal from a judgment in the Knox County Criminal Court denying a post-conviction relief petition after an evi-dentiary hearing.

On March 12, 1981 the petitioner was convicted in a jury trial of the crimes of first degree burglary, armed robbery, assault and battery, aggravated kidnapping, and being an habitual criminal. His respective sentences were set at not less than eight (8) years nor more than ten (10) years on the first count; twenty (20) years on the second; eleven months and twenty-nine days on the third; thirty (30) years on the fourth. Although indicted on each of the foregoing charges as an habitual criminal, he was found guilty as such only on the armed robbery conviction which was enhanced to life imprisonment. All of the other sentences were fixed to run concurrently except the thirty year sentence for aggravated kidnapping which was set to be served consecutive to the life sentence. On appeal petitioner’s convictions were affirmed by this Court. Further appeal was denied by the Tennessee Supreme Court. See State v. Mackey, 638 S.W.2d 830 (Tenn.Cr.App.1982).

On September 7, 1982, just three months after the Supreme Court denied permission to appeal, petitioner filed a pro-se application for post-conviction relief. Counsel was appointed at the trial level and an amended post-conviction petition was filed. On July 7, 1983 an evidentiary hearing was held on the petition. Subsequently a memorandum opinion and order was entered by the trial judge denying the application for post-conviction relief. Petitioner has appealed that decision asserting that his proof at the evidentiary hearing supported a finding that he was denied effective assistance of counsel, and that the trial court did not consider the proper criteria in considering the merits of the post-conviction relief petition.

Appellant argues his trial counsel failed to adequately investigate and prepare for trial, thus depriving him of effective assistance of counsel. Specifically it is contended counsel failed to interview the victim and two police officers prior to the trial, and failed to adequately set up a defense based on intoxication at the time of the crime.

At the post-conviction hearing the evidence showed that trial counsel had interviewed numerous witnesses in an attempt to find evidence beneficial to the appellant. He had cross-examined one of the police officers at a parole revocation hearing pri- or to trial, and had spent from 125 to 150 hours in preparation for trial. His determination not to interview the other officer or the victim was based on his decision that any information obtained from them would be cumulative, and that there was sufficient evidence from other sources to make the defense. Trial counsel, anticipating a defense of mental incapacity due to drug and alcohol intoxication, made application for a psychiatric examination of appellant prior to trial. See this Court’s decision at 638 S.W.2d, p. 833, 834.

At the conclusion of the evidentiary hearing the court below found the services rendered by trial counsel on appellant’s behalf were well within the standards set forth in Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975); that counsel acted competently and effectively and appellant was not deprived of any substantial defense, or prejudiced by counsel’s representation.

In Baxter v. Rose, supra, the Tennessee Supreme Court, after a review of the decisions of the Federal secondary appellate courts, declined to establish any precise nomenclature or lay down any specific standards or guidelines, and chose to measure the range of competence demanded of attorneys in criminal cases by the criteria set forth in United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973); and the Sixth Circuit case of Beasley v. United States, 491 F.2d 687 (6th Cir.1974). The court further suggested that trial courts and defense attorneys should look to and be guided by the American Bar Association Standards relating to the administration of criminal justice in general, and specifically to those portions of the Standards which relate to the defense function.

Quite recently, in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984), the United States Supreme Court discussed DeCoster, supra, among various other federal cases, in analyzing the proper standard for attorney performance in defense cases. In doing so they held that a convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense. Specifically it must be shown that the errors made were so serious that counsel was not functioning in accordance with the guarantees of the Sixth Amendment, and that any errors made by counsel were so serious as to deprive the defendant of a fair trial which concluded in a reliable result.

We are in accord with the judgment of the trial court in this case that trial counsel was neither incompetent nor ineffective. Defendant has failed to establish that the alleged acts or omissions of his trial counsel were not the result of reasonable professional judgment. Recognizing that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, we hold that counsel’s conduct on the issues raised by defendant were within the range of professionally competent assistance. See Strickland, supra.

“... actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.” Strickland v. Washington, supra, — U.S. p. —, 104 S.Ct. p. 2067.

In regard to defendant’s contention that the trial court failed to consider the proper criteria in ruling that trial counsel was competent, this issue has also been settled in Strickland, supra. The trial court ruled that the defendant below had failed to show that he was prejudiced as a result of alleged ineffectiveness of counsel. This was a correct decision.

Defendant urges us to apply the ABA Standards in scrutinizing the decision of the court below in denying post-conviction relief. Neither the appellate courts of this State nor the United States Supreme Court has ever held that these standards present an unwavering rule in the consideration of an ineffectiveness claim. They are only guidelines. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. See Strickland v. Washington, supra, and Baxter v. Rose, supra.

The judgment of the trial court is affirmed.

TATUM, J., and WILLIAM H. WILLIAMS, Special Judge, concur.


source: Caselaw Access Project

author: DWYER, Judge.

license: Public Domain

text:
    STATE of Tennessee, Appellee, v. Terry Dale CARTER, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Dec. 19, 1984.
    Permission to Appeal Denied by Supreme Court March 4, 1985.

      Mary E. (Beth) Stricklin, Humboldt, for appellant.
    W.J. Michael Cody, Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, Clayburn L. Peeples, Dist. Atty. Gen., Trenton, for appellee.
   OPINION

DWYER, Judge.

After a jury trial, appellant' was convicted for making harassing phone calls. See T.C.A. § 39-6-1102. He was sentenced to confinement for sixty (60) days in the Gibson County Jail and fined two hundred fifty dollars ($250.00).

Appellant presents three issues in his appeal as of right from the judgment pronounced on the jury’s verdict. They are: (1) whether the sufficiency and weight of the evidence support the jury’s verdict; (2) whether the state proved venue; and (3) whether T.C.A. § 39-6-1102 is unconstitutionally vague.

The evidence in narrative form, see T.R. A.P. 24(a), reflects a housewife receiving a telephone call in her residence in Humboldt, Tennessee, 12:00 noon on June 14, 1982. The anonymous caller had previously made fifteen or more calls to her in the last several months. The caller asked if he could come over and make love to her. He also asked her to appear nude when he arrived so that he would know that it was not a setup. In a short while she and her husband observed a light colored car pass and repass their home. The housewife received another call around 1:10 p.m., and she reassured the caller that it was not a “set-up”. She and her husband then noticed appellant approach to enter the home. The husband confronted him with a pistol at the door. Appellant exclaimed, “You’ve got this all wrong.” The wife identified appellant as the caller and as the husband of a co-worker.

Appellant established an alibi defense. His wife, a guard where she worked, and friends claimed that at the time of the calls, appellant was with them and made no phone calls. He explained his appearance at the home, saying that he had stopped to request a carburetor part from the husband.

By its verdict the jury rejected appellant’s alibi defense and accredited the theory of the State that appellant was the caller. The evidence is sufficient to meet T.R.A.P. 13(e) requirements. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

Appellant also contends that the trial court erred in not ruling that the weight of the evidence preponderates against the verdict; hence, as thirteenth juror, the court erred in overruling his motion for new trial. He relies on an unreported opinion of this Court, State v. Johnson, Coffee County No. 81 — 309—III (Tenn. Cr.App., January 18, 1983) (unpublished opinion, permission to appeal granted May 2, 1983). That opinion, with permission to appeal granted by our Supreme Court, is not persuasive here. The argument is advanced that the guard’s testimony clearly outweighs the housewife’s; hence, the trial court should have granted appellant’s motion for a new trial. We are not responsive to this argument for the trial court as well as the jury saw and heard the witnesses. It was their duty to weigh the testimony which obviously the trial court did when the court overruled his motion for new trial. This issue is overruled.

The venue was clearly established when the housewife testified that she received the calls at her home in Humboldt which is in Gibson County. It is also established that appellant was in Humboldt on or about the time the calls were received. These uncontradicted circumstances are surely enough to fit the “slight evidence” required to establish venue. State v. Bennett, 549 S.W.2d 949, 951 (Tenn.1977). This issue is overruled.

The constitutionality of the statute, T.C.A. § 39-6-1102, is not vague. The State argues that since the issue was not raised in the motion for new trial, it was waived. State v. Strouth, 620 S.W.2d 467, 471 (Tenn.1981). It also may be argued that because the issue was not raised pretrial, it was waived. At any rate, the words in the statute, lewd, lascivious, and obscene, are sufficient descriptions to put ordinary men of common intelligence on notice as to what conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). This issue is overruled.

All issues overruled, the judgment of the trial court is affirmed.

O’BRIEN and SCOTT, JJ., concur.


text:
    STATE of Tennessee, Appellee, v. J.D. LINGERFELT, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Dec. 18, 1984.
    Permission to Appeal Denied by Supreme Court March 4, 1985.
    William M. Leech, Jr., Atty. Gen. & Reporter, Wayne E. Uhl, Asst. Atty. Gen., Nashville, R. Jerry Beck, Asst. Dist. Atty. Gen., Blountville, for appellee.
    J. Christopher Booth, Kingsport, for appellant.
   OPINION

O’BRIEN, Judge.

This is an appeal from a decision of the Sullivan County Court denying relief on a writ of error coram nobis filed pro-se by J.D. Lingerfelt. The writ was dismissed without an evidentiary hearing upon a finding that the petition did not allege any grounds upon which relief should be granted.

The history of this litigation is lengthy and protracted. On September 14, 1978 appellant was convicted of murder in the second degree, aggravated assault, and use of a firearm in the commission of a felony. He received an effective sentence of life imprisonment plus five (5) years in the penitentiary. The judgment on the conviction was appealed to this Court. The history of the trial proceedings is set out in detail in the opinion of this Court affirming the trial court judgment.

Defendant’s retained trial counsel was suffering from a terminal illness at the time of the trial. More than sixty (60) days before the trial this lawyer’s request was honored for the appointment of additional counsel to aid in representation of the defendant. Immediately after the trial defendant engaged the services of other counsel who represented him at a hearing on a motion for a new trial, and on appeal to this Court. Ultimately defendant was granted an application for permission to appeal to the Supreme Court of this State. This application was denied on June 21, 1982.

On August 3, 1983, the appellant filed a pro-se petition which he refers to as a “writ of error coram nobis”. In dismissing the matter the trial judge referred to the petition as a motion for discovery. Counsel was appointed for petitioner to enable him to appeal from the trial court's judgment dismissing his petition.

T.C.A. § 40-26-105 provides for availability of the writ of error coram nobis to convicted defendants. In pertinent part this statute provides:

“There is hereby made available to convicted defendants in criminal cases a proceeding in the nature of a writ of error coram nobis, to be governed by the same rules and procedure applicable to the writ of error coram nobis in civil cases, except insofar as inconsistent herewith.... The relief obtainable by this proceeding shall be confined to errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that he was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial....”

Assuming, for the purpose of analysis, that the petition filed in this cause could be considered as an application for a writ of error coram nobis, the trial court would be justified in denying the application. The petition raises nothing outside the record which would warrant relief. The issue of the competency of his trial counsel was litigated on his motion for new trial, on the appeal of his conviction proceedings, again on a post-conviction proceeding in the trial court, and once more on the appeal of that decision by this Court, with permission to appeal denied by the Supreme Court.

The petition filed actually seeks copies of defendant’s trial counsel’s hospital and medical records for a three year period preceding his death, a copy of the transcript of the preliminary hearing, and his trial, including closing arguments. The production of such records is not the office of a writ of error coram nobis, and the request substantiates the trial court’s finding that the pleading was indeed a fishing expedition for matters already litigated on direct appeal and post-conviction. Moreover, all of the requested records, if available at all, were available to petitioner and his appellate counsel at the hearing of his motion for new trial. Petitioner has presented no basis for a hearing.

The records and files in this case conclusively show the trial judge ruled correctly and we affirm the judgment.

WALKER, P.J., and DWYER, J., concur.

      . State of Tennessee v. J.D. Lingerfelt, No. 432, Sullivan " County, Tenn.Cr.App., Knoxville, 7/28/80.


author: BYERS, Judge.

text:
    STATE of Tennessee, Appellee, v. Barry MATHIAS, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Oct. 18, 1985.
    Permission to Appeal Denied by Supreme Court March 4, 1985.
    Harold R. Gunn, Humboldt, for appellant.
    W.J. Michael Cody, State Atty. Gen. and Reporter, Raymond S. Leathers, Asst. State Atty. Gen., Nashville, Clayburn Pee-ples, Dist. Atty. Gen., A.H. Schoonover, Ted Neumann, Asst. Dist. Attys. Gen., Trenton, for appellee.
   OPINION

BYERS, Judge.

The defendant was indicted on three indictments with multiple counts. He was convicted and sentenced as follows:

Case Number 4-84-1 — Persistent Offender
Count One — Possession of marijuana with the intent to deliver or sell. Sentenced to five (5) years.
Count Five — Possession of marijuana with the intent to deliver or sell. Sentenced to five (5) years.
Count Nine — Possession of methaqua-lone with the intent to deliver or sell. Sentenced to ten (10) years.
Count Thirteen — Possession of lysergic acid diethylamide (LSD) with the intent to deliver or sell. Sentenced to fifteen (15) years.
Count Seventeen — Possession of
benzphetamine with the intent to deliver or sell. Sentenced to eight (8) years.
County Twenty-One — Possession of eth-chlorvynol with the intent to deliver or sell. Sentenced to five (5) years.
Counts one, five, nine, seventeen, twenty-one sentences to run concurrently with each other but consecutively to Count Thirteen sentence.
Case Number 4853 — Persistent Offender
Count Four — Concealing stolen property of a value less than $200.00. Sentenced to five (5) years, sentence to run concurrently with case number 4841.
Case Number 4854 — Persistent Offender
Count One — Possession of marijuana with intent to manufacture, sell, deliver or distribute. Sentenced to five (5) years.
Count Three — Possession of ethchlor-vynol with the intent to manufacture, sell, deliver and distribute. Sentenced to five (5) years.
Count Five — Possession of Phentermine with the intent to manufacture, sell, deliver and distribute. Sentenced to five (5) years.
Count Seven — Possession of Benzpheta-mine with the intent to manufacture, sell, deliver and distribute. Sentenced to five (5) years.
Count Nine — Possession of Diazepam with the intent to manufacture, sell, deliver and distribute. Sentenced to five (5) years.
All sentences in case no. 4854 to run concurrently with each other but consecutively with case nos. 4841 and 4853.

The defendant says the trial judge should have suppressed evidence which was seized under a search warrant, says the trial court should have given an instruction on entrapment, and says the state, in closing argument, was allowed to argue matters not presented in the opening argument.

The judgments are affirmed.

The premises in the search warrant were described as follows:

[A] grey frame house, located approximately 1000 feet off Tn. Hy 70-79 between Humboldt and Gibson Tn. 2/io of a mile past Racetrack Rd. in the direction of Gibson, said house being located down the third driveway on the right past Racetrack Rd. and being in a cluster of three houses and two house trailers located down said driveway, said house being the last house on the right in said cluster of houses and being occupied by Barry Mathias and Tony Mathias.

The defendant contends that this search warrant is deficient because it describes a road used to locate the premises as being Racetrack Road rather than Grayball Road as shown on county maps and because it describes the house to be searched as being the last house on the right when he lived in, what he says, is the first house on the right.

The evidence shows that the official name of the road listed in the search warrant was Grayball Road as shown by county maps. The evidence shows, however, that approximately fifteen years before the search warrant was issued a racetrack was built at the end of this road. As a result of this, people began to refer to the road as Racetrack Road. This practice appears to have become so prevalent that the road, in public parlance, became commonly referred to as Racetrack Road. It appears this name became so much a part of the community that most people would not recognize the location of this road if it were described as Grayball Road but would know its location when it was called Racetrack Road. From all of this, we find the use of the name Racetrack Road did not render the description of the area uncertain.

The defendant testified that he lived in the first house on the right on the driveway which was described in the warrant rather than in the third house on the right. The defendant drew a diagram to show this location. The defendant’s diagram did not show individual driveways to the individual houses which intersect the common driveway described in the warrant.

The state’s proof showed that the common driveway ran into what appears to be a cul-de-sac with three houses clustered at the cul-de-sac. Each of these, according to the proof of the state, had driveways.

The state’s evidence showed the houses to be clustered in the area rather than being in linear alignment along the common driveway shown by the defendant’s diagram. The state’s evidence shows that when you stand facing the houses at the cul-de-sac the defendant’s house is the last house on the right in the cluster of houses.

The test of the legal sufficiency of the description of a place to be searched is whether it will enable an officer to locate the place to be searched with reasonable certainty and prevent the search of a place on the basis of a warrant directing the search of another place. State v. Stinnett, 629 S.W.2d 1 (Tenn.1982); State v. Nunley, 676 S.W.2d 197 (Tenn.Cr.App.1984).

We find from the evidence at the suppression hearing and from the description in the search warrant that this requirement is satisfied and the trial judge properly overruled the motion to suppress the evidence.

The defendant may not prevail upon his claim that the trial judge erroneously failed to instruct the jury on the defense of entrapment. There is no evidence in the record to show that entrapment had occurred in the case. In order to rely upon the defense of entrapment, the defendant must make out a prima facie case of entrapment, whereupon the burden shifts to the state to show beyond a reasonable doubt that the defendant had the predisposition to commit the crime. State v. Jones, 598 S.W.2d 209 (Tenn.1980).

The defendant, who did not testify, attempted in cross-examination to show that the undercover officers induced or enticed the defendant into committing these crimes. The effort was futile and did not raise any evidence which would make entrapment a disputable issue requiring such a charge. See Jones, supra; Henderson v. State, 576 S.W.2d 10 (Tenn.Cr.App.1978).

The complaint of the defendant about the argument of the state cannot be considered by the Court because the argument complained of is not preserved in the record before us.

WALKER, P.J., and DUNCAN, J., concur.


author: PER CURIAM.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Petitioner, v. Juan S. GARZA, Respondent.
    No. C-3458.
    Supreme Court of Texas.
    Jan. 16, 1985.
    Rehearings Denied April 17, and June 26, 1985.
    Hunt, Hermansen, McKibben & Barger, Darrell L. Barger, Corpus Christi, for petitioner.
    Baldemar Gutierrez, Alice, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Texas Employers’ Insurance Association (TEIA) appealed from an adverse judgment in favor of Juan S. Garza in a worker’s compensation case. TEIA complained that a letter written by an attorney to the Industrial Accident Board advising of his representation of Garza for an on-job injury did not satisfy the six months notice of injury requirement of the Worker’s Compensation Act. TEIA likewise complained of an abuse of discretion by the trial judge in allowing expert testimony from a witness whose identity was made known to TEIA less than fourteen days prior to the beginning of trial, in spite of TEIA’s timely interrogatories requesting the identity of all expert witnesses. The court of appeals rejected both arguments and affirmed the judgment of the trial court. 675 S.W.2d 245. TEIA raises the same points before us. We refuse its application for writ of error, no reversible error.

This case was tried under the 1981 version of TEX.R.CIV.P. 168. That rule provided that if an interrogatory requested the identity and subject matter of testimony of an expert witness, such information would be provided not less than fourteen days prior to the beginning of trial, except on leave of court, and that if the information were not provided, the testimony of the witness would not be allowed unless the trial court found that good cause sufficient to require its admission existed.

We refuse the application for writ of error, no reversible error; but, we disapprove the language of the court of appeals which stated:

If the trial court grants leave for the party to supplement his answers to the interrogatories less than 14 days prior to the beginning of the trial, as the rule gives him authority to do, then the court is not bound to find good cause to require the admission of the testimony.... We believe the language in the rule directing that the evidence not be admitted was meant to cover situations ... where there was no pre-trial notice of the existence of the prospective expert witnesses.

675 S.W.2d at 250.


author: CAMPBELL, Justice.

text:
    CITY OF ROUND ROCK, Petitioner, v. John F. SMITH et al., Respondents.
    No. C-3023.
    Supreme Court of Texas.
    March 27, 1985.

      Stephen L. Sheets, Round Rock, for petitioner.
    Dale E. Muller, Austin, for respondents.
   CAMPBELL, Justice.

John F. Smith and other home owners in Chisholm Valley Subdivision in Round Rock, Texas, sued the City of Round Rock for damages that occurred when their homes flooded. The trial court dismissed their claim against the city for failure to state a cause of action. The court of appeals in an unpublished opinion reversed the judgment of the trial court and remanded the cause for trial. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

The City of Round Rock contends the court of appeals erred in holding the homeowners’ petition stated a cause of action. On appeal a judgment of dismissal for failure to state a cause of action will be sustained only if the allegations of the pleadings taken as true and construed most favorably in behalf of the pleader do not state a cause of action. City of San Antonio v. Earnest, 144 Tex. 83, 188 S.W.2d 775 (1945); Homeright Co. v. Exchange Warehouses, Inc., 526 S.W.2d 241 (Tex.Civ.App. —Tyler 1975, writ ref’d n.r.e.).

The developer, Doyle Hickerson, Inc., filled in the natural watercourses that provided drainage for the Chisholm Valley Subdivision and platted lots over and adjacent to the former watercourses. The city approved the proposed subdivision plat. The developer sold these lots to a builder who then built homes on the lots and sold them to Smith and the other homeowners.

On the night of May 24, 1981, a severe rainstorm fell on the City of Austin, the Shoal Creek watershed, and surrounding areas. Before dawn the next day, what has since become known as the Memorial Day Flood, killed thirteen people and caused millions of dollars of property damage in the area. That same storm passed over the City of Round Rock. Within twenty-four hours 3.25 inches of rain fell on the city.

The homeowners allege their homes flooded and the flooding would not have occurred if the watercourses had not been filled. They allege two theories of liability against the city: (1) the approval of a subdivision plat is a proprietary function which the city negligently approved, and (2) in the alternative, if approval of a subdivision plat is a governmental function, the city’s approval of the plat constitutes a taking for public use without just compensation. TEX. CONST., art. 1, § 17.

The city specially excepted to the homeowners’ petition three times because it failed to allege a cause of action. The trial court sustained the exceptions and each time the homeowners amended their petition. The homeowners then filed their fourth amended petition. The city again specially excepted. The trial court sustained the exceptions, but allowed the homeowners thirty days to amend their pleadings. The homeowners did not further amend, and the trial court dismissed their claim against the city.

The first issue is whether a city’s approval of a subdivision plat is a proprietary function or a governmental function. A city is liable for torts committed by its employees when the city is performing a proprietary function. On the other hand, a city is immune from liability for torts committed by its employees when the city is performing a governmental function unless the state by statute has waived immunity. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960). Thus, if approval of a subdivision plat is a proprietary function, the homeowners’ petition states a negligence cause of action against the city. If approval of a plat is a governmental function, the petition fails to state a cause of action for negligence.

In the landmark case, City of Galveston v. Posnaisksy, 62 Tex. 118 (1884), Justice Stayton established the test for determining whether an act is governmental or proprietary:

It would seem that, in so far as municipal corporations of any class, and however incorporated, exercise powers conferred on them for purposes essentially public — purposes pertaining to the administration of general laws made to enforce the general policy of the state,— they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given; that, in reference to such matters, they should stand as does sovereignty, whose agents they are, subject to be sued only when the state, by statute, declares they may be....
In so far, however, as they exercise powers not of this character, voluntarily assumed — powers intended for the private advantage and benefit of the locality and its inhabitants, — there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable.

62 Tex. at 127.

The homeowners argue that approval of a subdivision plat is a proprietary activity because it is not a duty imposed on a city. We disagree. Under TEX.REY. CIV.STAT. art. 974(a), § 4, a city must either approve or disapprove a proposed plat. If a city does not disapprove a plat within thirty days from the date it is filed with the planning commission, the planning commission is deemed to have approved the plat. TEX.REV. CIV.STAT. art. 974, § 3.

The homeowners also contend that plat approval is a proprietary function because plat approval primarily promotes individual city interests and does not promote any significant general public interest. Plat approval, like zoning, is an exercise of the police power. The police power is a grant of authority from the people to their governmental agents “to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety.” Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 479 (1934). The purpose of plat approval is to ensure that subdivisions are safely constructed and to promote the orderly development of the community. Plat approval protects future purchasers from inadequate police and fire protection, inadequate drainage, and insures sanitary conditions. Public health, safety, and morals are general public interests.

Governmental immunity applies when a city exercises “discretionary powers of a public nature embracing judicial or legislative functions.” Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396, 398-399 (1943). Judicial power is the power conferred upon a public officer to adjudicate the rights of individual citizens by construing and applying the law. Aransas Harbor Terminal Ry. Co. v. Ta bor, 235 S.W. 841, 842-843 (Tex.Comm’n App.1921, jdgm’t adopted); See Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942) (citing Aransas with approval). A subdivision plat cannot be recorded without the approval of the planning commission. TEX.REV.CIV.STAT. art. 974a, § 3. In deciding whether to approve or disapprove a proposed plat the planning commission must interpret and construe the city plan, applicable ordinances and state statutes to determine whether the proposed plat complies with these laws. TEX.REV.CIV.STAT. art. 974a, § 4. Thus, plat approval or disapproval is a quasi-judicial exercise of the police power.

We have generally held ministerial acts which could be performed by a private subcontractor to be proprietary functions. For example, traffic regulation is a governmental function, but street maintenance is a proprietary function. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960). Traffic regulation requires public officials to exercise discretion. However, street maintenance is a ministerial function which could be performed by a private subcontractor. The purpose of this distinction is to avoid piecemeal judicial review of policy decisions made by a governmental unit.

Had the city itself negligently maintained or negligently constructed a storm sewer, the city would be liable because the acts of constructing and maintaining a storm sewer would be ministerial acts which could be performed by a private subcontractor. Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992 (1949).

In this case, plat approval is a discretionary function that only a governmental unit can perform. By definition a quasi-judicial exercise of the police power is exclusively the province of the sovereign. An individual or private corporation cannot exercise the same power. We hold that plat approval is a governmental function.

The homeowners further contend that even if plat approval is a governmental function, the petition states a cause of action for inverse condemnation. The Texas Constitution provides:

No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof, (emphasis added)

TEX. CONST, art. 1, § 17.

The petition alleges that Doyle Hicker-son, Inc., the developer, owned these tracts at the time it requested the plat approval. By filling in the watercourses and requesting the planning commission to approve the plat, Doyle Hickerson, Inc., the owner, consented to the taking. The homeowners are not entitled to compensation because they claim title through Doyle Hickerson, Inc. See, e.g., Hightower v. City of Tyler, 134 S.W.2d 404 (Tex.Civ.App. — El Paso 1939, writ ref’d); DeMary v. Jefferson County, 179 S.W.2d 584 (Tex.Civ.App. — Beaumont 1944, writ ref’d w.o.m.).

We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

      . The Texas Tort Claims Act, Tex.Rev.Civ.Stat. art. 6252-19, is inapplicable under the facts of this case.


author: W.C. DAVIS, Judge. TEAGUE, Judge CLINTON, Judge. TEAGUE, Judge,

text:
    Onnie Mack WAGNER, Appellant, v. The STATE of Texas, Appellee.
    No. 61601.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 1, 1984.
    Rehearing Denied Feb. 13, 1985.

      Charles Sexton, Orange, for appellant.
    William C. Wright, County Atty. and James O. Jenkins, Jr., Asst. County Atty., Orange, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P.J., and W.C. DAVIS and TEAGUE, JJ.
   OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of murder and assessed punishment at eighty-five years’ confinement. Appellant alleges eleven grounds of error.

Several of those grounds concern his Motion for Continuance and Notice of Possible Insanity Defense. This motion involved three issues: continuance, a competency hearing, and notice of insanity defense. The court overruled the motion for a continuance, which appellant claimed was needed in order to obtain additional psychiatric testing of appellant “as to his mental condition.”

The record shows that the docket sheets contain a notation that appellant was arraigned on February 17, 1978 and the case set for trial April 10, 1978. The case was then reset for trial on June 19, 1978 and June 26, 1978. Appellant’s motion was filed June 16, 1978. The clerk for the 260th District Court of Orange County testified that a copy of the criminal docket of the 260th District Court was mailed to appellant’s counsel May 19, 1978, and that it contained a paragraph stating that any motions for continuance must be filed by May 31, 1978. Appellant’s counsel did not dispute this testimony. The motion was untimely filed; the court did not abuse its discretion in overruling the motion for continuance. Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1982); Taylor v. State, 612 S.W.2d 566, 570 (Tex.Cr.App.1981).

The trial court granted appellant’s motion for a competency hearing and denied his motion for the insanity defense because it was untimely filed in violation of Art. 46.03, § 2, V.A.C.C.P. Appellant claims that the trial court abused its discretion in failing to allow appellant to present evidence about the issue of insanity because the notice of insanity defense was filed ten days before the case actually went to trial.

Once again we note the pertinent dates involved: the case was originally set for trial April 10, 1978 and then set for June 19, 1978 and June 26, 1978. Appellant filed his notice of insanity defense June 16,1978. Art. 46.03, § 2, V.A.C.C.P. states in pertinent part:

(a) A defendant planning to offer evidence of the insanity defense shall file a notice of his intention to offer such evidence with the court and the prosecuting attorney:
(1) at least 10 days prior to the date the case is set for trial;
(b) Unless notice is timely filed pursuant to Subsection (a) of this section, evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to give notice. [Emphasis added]

At the time appellant’s motion was heard, June 16, the case was set for trial on June 19. Because the court then held a competency hearing, the case did not go to trial on the merits until June 26. The case was set to go to trial on June 19 at the time appellant’s motion was filed on June 16. Since the June 16 filing was not ten days prior to June 19 trial setting, we find that the trial court correctly held that the notice of insanity defense was untimely filed. See Schaffer v. State, 590 S.W.2d 490 (Tex.Cr.App.1979). The trial court has the discretion to decide whether good cause is present for failure to file timely. Schaf-fer, supra. No evidence was presented by appellant explaining why he waited until June 16 to file notice. No abuse of discretion is shown. This ground of error is overruled.

In a related ground of error appellant claims that the trial court erred in overruling his motion for psychiatric examination filed the day the trial began, June 26, 1978. At a hearing on June 19 a jury found appellant competent to stand trial. Appellant’s notice of insanity defense had been rejected for being untimely filed, and no good cause was shown for the untimely filing. Then on June 26 appellant filed this motion for psychiatric examination to determine “whether defendant was sane at the time of the offense.” (Emphasis added) The court had already ruled out the insanity defense, therefore, as the State notes, any motion “pertaining to the defense of insanity was rendered moot.” The court did not abuse its discretion in overruling appellant’s motion. See Hammett v. State, 578 S.W.2d 699, 707 (Tex.Cr.App.1979); Porter v. State, 623 S.W.2d 374, 380 (Tex.Cr.App.1981).

The trial court granted appellant’s motion for a competency hearing. Appellant now claims that this hearing violated due process because the trial court failed “to allow appellant sufficient time to obtain the necessary psychiatric testimony necessary to the presentation of his case on competency.”

Appellant’s motion for continuance encompassed his motion for a competency hearing by stating that “the people doing the testing are of the opinion that further testing is needed to reach a complete well-reasoned opinion.” It states further that “there is a question” as to the competency of appellant to stand trial. The court then held a competency hearing. Appellant made no objections before, during or after the hearing to suggest that the psychiatric evaluation used for the competency hearing was incomplete. Appellant’s bill of exceptions made after the hearing simply produced testimony of a defense witness that there was a need for more treatment for appellant’s mental illness. No mention was made of any need for psychiatric testing for competency.

The objection offered on appeal was not presented to the trial court. A specific objection raised on appeal will not be considered if it varies from the specific objection made at trial. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976). Nothing is presented for review.

Appellant claims that the court erred in admitting testimony at the competency hearing concerning a statement appellant gave police because this evidence was not relevant to competency and was prejudicial to appellant.

As the State points out, the details and substance of the statement were not made known to the jury and the statement was never referred to as a confession. The testimony involved only appellant’s understanding of the proceedings and his ability to communicate with others. In addition, appellant objected specifically on the grounds of the issue of the voluntariness of the confession and not on relevance grounds. Appellant may not now assert this contention for the first time on appeal. Carillo, supra; Bouchillon, supra. This ground of error is overruled.

We will address three related grounds of error together. Appellant claims that his confession should not have been admitted at trial because appellant had not knowingly and intelligently waived his right, Art. 38.22, V.A.C.C.P., and because he was not taken before a magistrate before giving the confession, Art. 15.17, Y.A.C.C.P. Appellant also argues that the court should have charged the jury on the issue of the voluntariness of the confession.

The trial court held a hearing on appellant’s motion to suppress his confession. The testimony showed, and the trial court made written findings of fact to the effect that, the confession was voluntary, that Art. 38.22 had been followed, and that appellant intelligently and knowingly waived his rights under Art. 38.22.

The fact that appellant was not taken before a magistrate until after he had given his statement does not render the confession invalid absent a showing of a causal connection between the confession and the failure to take him before a magistrate. Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978). Appellant did not show any such connection. These grounds of error are overruled.

The last confession related error concerns the court’s denial of appellant’s requested charge to the jury on the issue of the voluntariness of the confession. If the evidence offered before the jury did not raise the issue of voluntariness appellant was not entitled to a jury charge on the matter. Brook v. State, 567 S.W.2d (Tex.Cr.App.1978). Appellant does not cite the record regarding evidence heard by the jury concerning voluntariness, nor does our review of the record reveal such evidence. The State’s evidence showed that the confession was voluntary. This evidence was not undermined or rebutted before the jury in any way. Appellant’s ground of error is overruled.

Appellant also complains of the denial of another of his requested charges. He requested a charge on the issue of common law marriage between a State’s witness and appellant. See Tex.Fam.Code Ann. § 1.91 (Vernon 1975). Again appellant does not cite us to any place in the record where the issue was raised before the jury, nor did our examination of the record reveal such evidence. This ground of error is overruled. Brook, supra.

Appellant contends that exclusion of evidence of a physical condition of appellant, during the trial on the merits, was error. The evidence consisted of testimony and x-rays to show that shotgun pellets were situated somewhere in appellant’s head and that his frontal sinuses are somewhat larger than usual. Appellant appears somewhat confused in his use of Cowles v. State, 510 S.W.2d 608 (Tex.Cr.App.1974) to assert the claim that where specific intent is involved as an element of the crime, evidence of mental weakness falling short of legal insanity is admissible at the guilt-innocence phase of the trial. While the foregoing statement is correct, appellant is mistaken in claiming that specific intent was an issue in his case. Appellant was charged with intentionally or knowingly causing the victim’s death. In Womble v. State, 618 S.W.2d 59, 64 (Tex.Cr.App.1981) a defendant was also charged with intentionally or knowingly causing a person’s death. He requested a charge stating that if the jury found that he did not specifically intend to hit the victim he should be acquitted. The Court quoted Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.1975) (opinion on Motion for Rehearing) and discussed the fact that an unintentional act can still be a criminal offense if done with knowledge, recklessness or negligence. His charge on specific intent was denied. Appellant’s situation is similar. No specific intent need be proved, knowledge will suffice.

One of appellant’s witnesses stated that appellant was not insane but that he might have problems with impulse control and that he was aware of what was happening but that his emotional contact was a bit displaced. In Cowles, supra, the court stated:

[w]hen an expert witness for the defense testifies that the accused was legally sane at the commission of the act, and the offense is not one where specific intent is an element of the crime, an offer of testimony by that witness as to the mental aberration or the emotional problems of the accused should be rejected at the guilt-innocence stage of the trial.
510 S.W.2d at 610.

The trial court correctly excluded the testimony. The ground of error is overruled.

Appellant’s last ground of error is that a state reputation witness was shown to be incompetent to testify to appellant’s reputation in the community because he based his testimony on a single specific act of appellant.

In Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975) the Court clarified the requisites for reputation witnesses. The two-prong qualification requirement consists of (1) testimony by the witness that he has discussed or heard of appellant’s reputation with other people; and (2) the discussion cannot be based on the particular offense for which appellant is on trial, although it can be based upon the offense for which the defendant is on trial and a discussion of matters other than the instant offense. Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1979) (opinion on rehearing 1980).

Officer Ray Long testified on voir dire as follows:

Q. Mr. Long, when — I presume that you are here to testify about the reputation of Onnie Mack Wagner, is that correct?
A. Yes, sir.
Q. In the community?
A. Yes, sir.
Q. What do you base that testimony on?
A. On information received from another member of the community.
A. We discussed the fact that Mr. Gans stated that he and his wife had been— their lives had been threatened by Mr. Wagner.
Q. Anything else?
A. I can’t recall.
Q. In other words, it’s in relation to this specific act, is when you interviewed Mr. Gans, is that correct?
A. It was in relation to a terroristic threat and it was in relation to a—
Q. That and that only, is that correct?
A. Yes, sir, that’s what Charles discussed with me.
Q. You didn’t discuss anything else other than that threat?
A. That’s all we discussed.

Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972) discussed the qualifications for reputation witnesses and addressed appellant’s identical contention. The court said:

Although the officers could not testify to specific acts, it is not improper for them to discuss specific acts with other persons as a basis for determining what appellant’s reputation is in the community. The appellant’s cross-examination of the officers did not show them to be unqualified to testify concerning the appellant’s bad reputation. See and compare Frison and Watts v. State, 473 S.W.2d 479 (Tex.Cr.App.1971).
480 S.W.2d at 726-27.

Appellant’s last ground of error is overruled. The judgment is affirmed.

TEAGUE, Judge

dissenting.

In his eleventh ground of error, which the majority of the panel overrules, appellant asserts that the trial court erred in permitting Ray Long, an Orange police officer, to testify at the punishment stage of the trial that in his opinion appellant had a bad reputation in the general community in which he resided for being a peaceable and law-abiding citizen.

Implicitly, the majority finds that Long was qualified to give his opinion that appellant had a bad reputation in the general community in which he lived for being a peaceable and law-abiding citizen. I totally disagree with this finding.

Long testified outside of the presence of the jury that he had formed his opinion solely from a criminal investigation he had conducted, wherein Charles Gans, the present husband of the daughter of the deceased, who was formerly appellant’s betrothed, had complained to him that he and his wife had been threatened by appellant approximately two months before trial.

It is elementary hornbook law that before a witness is entitled to give an opinion that an accused’s general reputation for having a particular character trait in the community in which he lives or resides is bad, the witness must have actually discussed the subject of the accused’s reputation with someone in the community and that person must have told the witness that the accused’s general reputation for having that particular character trait in the general community was bad. Jackson v. State, 628 S.W.2d 446, 450, n. 2 (Tex.Cr.App. 1982). In this instance, Long never testified that Gans told him appellant’s reputation for being a peaceable and law-abiding citizen in the general community in which he lived was bad. Long was not a qualified reputation witness and should not have been permitted to testify.

Contrary to the majority’s authority of Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972), in this cause appellant’s counsel did establish on voir dire that Long was unqualified to testify concerning appellant’s bad reputation.

Perhaps, however, the majority has read elementary law books on the subject but has not yet read what it has quoted from the record on page 8 of its opinion, especially the last question and answer.

McCormick, Ray, Wigmore, and all the other greats who have expounded on the subject, or their present day publishers, are implicitly warned by the majority: Tear out of your books on evidence the chapter on how a bad reputation witness is qualified.

Finding that the majority is clearly and totally in error, I respectfully dissent.

Before ONION, P.J., and McCORMICK, CAMPBELL and CLINTON, JJ.

OPINION ON APPELLANT’S MOTION FOR REHEARING

CLINTON, Judge.

We granted rehearing in order to reexamine the last two contentions raised by appellant and discussed in a panel opinion on original submission, viz: that evidence of appellant’s physical condition at the time of the offense should have been admitted on the issue of intent, and that an unqualified reputation witness was allowed to testify at the punishment hearing.

In his bill of exceptions appellant introduced an electroencephalograph report and skull x-rays of appellant dated June 20, 1978, approximately three months prior to the commission of the offense. Dr. William Bryant, a radiologist at Orange Memorial Hospital testified that the x-rays show shotgun pellets projected over a region of appellant’s head. He also noted an enlargement of the frontal sinuses. Bryant stated he could not be sure, but he did not believe the pellets had penetrated into appellant's brain. He testified that enlargement of the sinuses might signal atrophy of the brain, but that a number of things could cause such an enlargement and further study was needed. Dr. Wallace Norton, a phychiatrist who examined appellant, testified that enlargement of sinuses is sometimes associated with deterioration of the frontal lobes, which areas, if impaired, could affect impulse control. Wallace stated that based on his contact with appellant, he concluded appellant was not insane but that neurological or functional impairment of specific areas of the brain was possible. While he was aware of what was. happening around him, appellant’s emotional contact appeared to Norton to be “a little bit displaced.”

On original submission the panel concluded that appellant’s reliance on Cowles v. State, 510 S.W.2d 608 (Tex.Cr.App.1974) was misplaced. Because the trial court charged the jury that it must find appellant “intentionally or knowingly” caused the death of the victim, specific intent was not in issue, and therefore the exception to the rule announced in Cowles v. State, supra, could not be invoked. This is so because the jury was authorized to convict appellant if it found he knowingly caused the victim’s death. See Womble v. State, 618 S.W.2d 59 (Tex.Cr.App.1981).

However, appellant correctly points out in his motion for rehearing that the trial court charged conjunctively rather than disjunctively as to the culpable mental state in the paragraph applying the law to the facts. The jury was instructed that it could convict appellant if it found he “knowingly and intentionally” caused the victim’s death. Sufficient proof of both mental states was therefore required for conviction. Cf. Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983); Wagner v. State, 544 S.W.2d 143 (Tex.Cr.App.1976). While it is true that “[pjroof of a higher degree of culpability than that charged constitutes proof of the culpability charged [,]” V.A.P.C., § 6.02(e), so that “knowledge” per se did not necessarily have to be proved, we are constrained to hold that the court’s charge in fact placed the burden on the State to prove intent beyond a reasonable doubt.

Nevertheless we decline to accept appellant’s argument that because intent was an issue in the case, evidence of possible impairment of mental functions was admissible at the guilt phase of the trial.

Appellant invokes the dicta set out in Cowles v. State, supra, at 610, that “where specific intent is an element of the offense for which the accused is being tried, as in different degrees of murder and the ‘with intent’ crimes [,]” evidence of mental impairment which does not rise to the level of insanity is nevertheless admissible to negate the specific intent and so reduce the magnitude of the crime. As stated in 22 A.L.R.3d 1228, to which both appellant and the State draw our attention:

“[S]everal states have adopted the so-called theory of diminished responsibility. This theory is that since certain crimes, by definition, require the existence of a specific intent, any evidence relevant to the existence of that intent, including evidence of an abnormal mental condition not constituting legal insanity, is competent for the purpose of negativing that intent. Although the doctrine is often referred to as the doctrine of ‘diminished responsibility,’ the actual purpose of such evidence is to establish, by negating the requisite intent for a higher degree of offense, that in fact a lesser degree of the offense was committed.”

Id,., § 5, at 1238.

Many jurisdictions that recognize different degrees of murder based upon whether or not “deliberation” and “premeditation” are present will admit evidence of abnormal mental capability where it may contribute to a reduction from first to second degree murder. Id., § 7, at 1246. However, V.A.P.C., § 19.02 recognizes no such “degrees” of murder. Hence, the doctrine of diminished responsibility will not justify admission of appellant’s proffered evidence to establish a lesser “degree” of murder.

Other jurisdictions have held evidence of abnormal mental capability not amounting to insanity admissible to negate the element of malice aforethought. 22 A.L.R.3d, § 8, at 1252. Though malice aforethought is also not an express element under § 19.02, supra, we have held that when “sudden passion arising from an adequate cause,” see V.A.P.C., § 19.04, is raised as an issue in a murder prosecution, it will function “in the nature of a defense to murder that reduces the offense to voluntary manslaughter.” Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978). Were we to find that appellant’s proffered evidence contributed to a showing of “sudden passion arising from an adequate cause,” the doctrine of diminished responsibility would mandate that the evidence be admitted. However, the evidence presented in appellant’s bill of exceptions did nothing to advance this issue.

The import of appellant’s proffered evidence is that the injury to his head possibly affects his impulse control, and that he seems to lack emotional contact with his surroundings. All that can be inferred from this evidence is that appellant may be more susceptible than the normal person to acting under the influence of a suddent passion. It does not further the proposition that appellant did in fact act under the influence of such a passion on the night of the offense.

Furthermore, introduction of such evidence would only confuse the jury in seeking to apply the charge on voluntary manslaughter that was given by the trial court. The court charged:

“ ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

See § 19.04(c), supra. As previously observed, the thrust of the evidence pertaining to appellant’s head injury is that he is not a person of ordinary temper. The statutory definition of voluntary manslaughter does not contemplate what would constitute adequate cause from the perspective of an individual whose impulse control is impaired. See Hobson v. State, 644 S.W.2d 473, 478 (Tex.Cr.App.1983). Lack of normal impulse control is simply not a circumstance recognized by the Legislature to diminish the criminal responsibility of an accused or reduce his crime to a lesser included offense.

We therefore find that, the issue of appellant’s sanity having been taken out of the case, appellant’s proffered evidence was not material on the issue of his guilt, and its introduction at the guilt phase at trial would only have confused the jury— the very evil sought to be averted in Cowles v. State, supra. The trial court did not err in refusing to admit this evidence and the panel was correct in overruling appellant’s contention in this regard on original submission.

Appellant also argues that his conviction should be reversed because the trial court erroneously admitted the testimony of Officer Ray Long at the punishment phase of the trial. Long testified, in essence, that he was a Patrol Sergeant with the Orange Police Department, that he had “known of” appellant for approximately two months, and that he knew appellant’s reputation in the community for being a peaceable and lawabiding citizen to be bad. Prior to so testifying, Long was taken on voir dire by appellant, wherein it was established that the basis for his knowledge of appellant’s reputation was a discussion with Charles Gans. The voir dire is substantially set out in our opinion on original submission and will not be reproduced here.

However, we do think it necessary to place Long’s voir dire testimony in context. Appellant was found guilty of the shooting death of Laura D. Smith. The shooting occurred on the night of September 28, 1978, when appellant forced his way into the home of the deceased in an effort to see her daughter, Willie Etta Smith. Though not married to appellant, Willie Etta Smith had borne one child and miscarried another by him. There was evidence that a few days prior to the offense, Willie Etta Smith and appellant had taken a blood test preparatory to getting married, though Smith testified that her participation in this was coerced. Sometime after the offense was committed, and after Willie Etta Smith had married Charles Gans, appellant apparently threatened their lives. Long testified on voir dire that it was Gans’ communication of this particular threat which constituted the sole foundation for his knowledge of appellant’s reputation.

On original submission this ground of error was overruled in reliance on Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972), wherein it is said that “[ajlthough the officers could not testify to specific acts, it is not improper for them to discuss specific acts with other persons as a basis for determining what appellant’s reputation is in the community.” Id., at 726-727. It is clear from the context of Crawford and the case cited as authority therein, see Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971), that the testimony of the police officers in those cases was not based solely on discussions as to specific acts. It is imperative that a reputation witness has discussed the accused’s reputation with members of the community as a basis for his opinion that such reputation is bad. Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975). We read Crawford to stand for the proposition that discussion of specific acts which occurs during the course of conversation as to an accused’s reputation in the community will not serve to taint or invalidate the officer’s understanding of that reputation. This is not the same, however, as holding that reputation testimony may be grounded solely on the officer’s knowledge of specific acts.

We cannot state the matter any more clearly than did the Dallas Court of Appeals in Moore v. State, 663 S.W.2d 497, 500 (Tex.App. — Dallas 1983):

“Reputation testimony is necessarily based on hearsay, but is admitted as an exception to the hearsay rule. For reputation testimony to be an exception to the hearsay rule it must meet two basic criteria: (1) that there is some necessity for the introduction of the testimony; (2) that the testimony has some circumstantial probability of trustworthiness. 5 Wigmore, Evidence § 1580, 1611, & 1612 (Chadbourn rev. 1974); 1A R. Ray, Texas Law at Evidence Civil and Criminal § 1321 (Texas Practice 3d. ed 1980).[] The trustworthiness of reputation testimony stems from the fact that a person is observed in his day to day activities by other members of his community and that these observations are discussed. Over a period time [sic] there is a synthesis of these observations and discussions which results in a conclusion as to the individual’s reputation. When reputation is based solely on specific acts, this synthesis is lost, as well as its reliability. When reputation testimony is given by police officers who have investigated an individual’s offenses and by victims of an individual act who have spoken only with others who are also victims, it is obvious that the witnesses’ conclusions as to the appellant’s reputation will be slanted against the individual and will not have the trustworthiness implicit in the exception to the hearsay rule. The conclusion of such witnesses as to the reputation may be vastly different from those who have had the day to day contact within the community envisioned in the traditional exception to the hearsay rule for reputation testimony. What is actually occurring with testimony of this type is that a witness takes the specific acts of the individual and then infers what the reputation of the person would be. In this respect, this evidence could easily be fabricated and, thus, loses its reliability. Consequently, if this were an open question, we would likely hold that such testimony was inadmissible.”

The instant case serves as a perfect example of the reason that knowledge of specific acts alone as a basis for reputation testimony violates the rationale for admitting such testimony in the first place. Long based his knowledge of appellant’s reputation on a single “terroristic threat” which was related to him by Gans. While strictly speaking this incident was not part of the transaction for which appellant was being prosecuted, both incidents were a product of the tumultuous relationship between appellant and Willie Etta Smith. Long’s testimony could not possibly constitute the kind of synthesis of observation and discussion in the community which is the basis for deeming reputation evidence reliable. His testimony was not indicative of the climate of opinion in the community. Rather, it reflected a single unproven allegation made by an obviously biased third party. Standing alone, knowledge of such a specific act will not qualify a witness to testify that he knows the reputation of an accused to be bad, and we so hold. The testimony of Officer Long was erroneously admitted.

We conclude, however, that admission of this testimony was harmless. Though Long was the only witness to testify on behalf of the State at the punishment hearing, his testimony was concise and unem-bellished. The jury never learned of the extraneous incident which was the purported basis for this testimony. Appellant himself offered no evidence in his own behalf during this proceeding. In final argument the prosecutor did not mention Long’s testimony. Instead he emphasized the violent circumstances surrounding the offense and made a general plea to the jury to fulfill its role in the law enforcement process by giving appellant a life sentence. Prior to the argument on punishment the prosecutor stated for the record that the State would have no objection to appellant reopening the case to present evidence on his eligibility for probation, but this invitation was expressly declined by appellant. On this state of the record we conclude that admission of the testimony was harmless beyond a reasonable doubt. See Mitchell v. State, supra.

Appellant’s motion for rehearing is overruled.

TEAGUE, Judge,

dissenting.

Originally, this cause was submitted only to a panel of three members of this Court. A majority of that panel rejected appellant’s eleventh ground of error, that the trial court had erred in permitting Ray Long, a long time Orange police officer, to testify at the punishment stage of his trial as a “bad” reputation witness for the prosecution and against appellant. Appellant asserted that because the State did not establish that Long was a qualified “bad” reputation witness, Long should not have been permitted to testify for the prosecution. The majority disagreed.

I dissented with opinion, stating therein why appellant was correct and why the majority of the panel’s holding that Ray Long, the State’s sole reputation witness, was established to be qualified to testify to appellant’s “bad” reputation was legally erroneous.

Today, the majority of this Court holds that Long should not have been permitted to testify as a “bad” reputation witness for the prosecution, because the State did not establish that he was qualified to so testify. To me, in light of what damage the majority panel opinion might have in the future caused our criminal jurisprudence system, the majority’s holding that Long should not have been permitted to testify, because the State did not establish that he was qualified to testify as a “bad” reputation witness for the prosecution, is indeed a breath of fresh air. In light of the majority’s holding, it is now not necessary for members of the bench and bar to mutilate their leading works on evidence, by tearing out the chapters therein on how a State’s “bad” reputation witness may be qualified, which is what I believe that the majority of the panel’s opinion implicitly commanded.

Notwithstanding my agreement with the majority’s holding, that because the State did not establish that Long was qualified to testify as a “bad” reputation witness for the prosecution, he should not have been permitted to testify for the prosecution, but because I believe that a majority of this Court has implicitly now written a new test for harmless error, or has unintentionally or inadvertently ignored the old test, I am still compelled to dissent in this cause.

The majority opinion incorrectly holds that the error was harmless as to both guilt and punishment. In light of the record, which I have carefully read, and the test that formerly existed to make the determination whether erroneously admitted evidence or testimony is harmless, which test applies to both guilt and punishment, I cannot agree that in this instance the error was harmless beyond a reasonable doubt as to the punishment that was assessed by the jury.

The test for harmless error, which is not set out in the majority opinion, is not whether a conviction could have been had with the improper evidence or testimony, nor is it whether the punishment that was assessed would not have been assessed without the improper evidence or testimony. Instead, the test is whether there is a reasonable possibility that the erroneously admitted evidence or testimony might have contributed either to the conviction or to the punishment that was assessed. Garrett v. State, 632 S.W.2d 350, 354 (Tex.Cr. App.1982).

I agree with the majority that in this instance there is not a reasonable possibility that the error contributed to the jury’s finding appellant guilty. However, I am unable to agree with the majority that there is not a reasonable possibility that such error contributed to the jury’s decision to assess appellant’s punishment at eighty-five (85) years’ confinement in the penitentiary, which number of years comes perilously close to being the absolute maximum that the jury could have assessed appellant as his punishment. Emphasizing the negative, when the jury saw the positive, as the majority does in order to reach its conclusion that the error in this instance was harmless, although such methodology is helpful, I find in this instance that it is an unacceptable way of answering the question whether the error was harmless.

The record reflects that in the presence of the jury the prosecution established that Long was no ordinary “bad” reputation witness for the prosecution. Long testified that he had been employed by the Orange Police Department for over nine years and had been a patrol sergeant for approximately five years. Not only did Long occupy an important position in the City of Orange, he also testified that he lived in the same general community where appellant lived. Given these facts, is there not a reasonable possibility that Long’s erroneously admitted testimony contributed to the jury’s decision to assess appellant’s punishment at eighty-five (85) years’ confinement in the penitentiary? I believe so.

I find it rather interesting that Judge Clinton, the author of the majority opinion, just recently stated the following in Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980), a unanimous panel opinion he authored for the Court: “Under the facts of this case the 25 year sentence assessed by the jury in this cause is not unusual, but that is not the question presented here. The question is whether or not we can say that this evidence was harmless beyond a reasonable doubt given the number of years assessed by the jury.” (572). In that case, Judge Clinton found for a unanimous panel that the error was not harmless as to the punishment assessed.

In this instance, because of the punishment of eighty-five (85) years that was assessed, and in light of Long’s status in the community, as well as the fact that he lived in the same general community as did appellant, I cannot agree that the above question, whether the error was harmless, should be answered in the negative, and therefore must respectfully dissent to the majority’s holding that the error was harmless beyond a reasonable doubt as to the punishment that was assessed by the jury. If the error was not harmless in Clemons v. State, supra, how on earth is it harmless in this case?

      . See generally LaFave and Scott, Criminal Law § 28 (1972).

      . The electroencephalograph report notes that penetration of one or two fragments into the brain was possible.

      . This evidence was inadmissible on the issue of the defense of insanity because appellant's notice of intent to offer such evidence was untimely filed under Article 46.03, § 2, V.A.C.C.P. See Opinion on original submission.

      . The general rule announced in Cowles is that evidence falling short of establishing insanity will not be admitted on the issue of guilt.
      "An exception to this rule is where specific intent is an element of the offense for which the accused is being tried, as in the different degrees of murder and the ‘with intent' crimes. Annotation, 22 A.L.R.3d 1253, and cases there cited; People v. Taylor, 220 Cal.App.2d 212, 33 Cal.Rptr. 654. The reasoning behind the exclusion of this type of evidence is that if the accused can distinguish between right and wrong and understands the nature and consequences of his acts, and is therefore legally sane, the fact that he suffers from a weak mind or from emotional problems does not excuse his act,'and is consequently imma-ferial on the question of guilt and would only confuse the jury if admitted into evidence." (Emphasis in original.)
      510 S.W.2d at 610. At the time Cowles was decided the operative test for determining insanity as a defense in Texas was the M’Naghten Rule, which inquired whether an accused at the time of the offense could distinguish right from wrong as to the conduct with which he is charged. At the time of the instant prosecution, which commenced June 19, 1978, the operative test could be found in V.A.P.C., § 8.01(a), which read:
      "(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.”
      This different standard for determining insanity does not change the general rule that once insanity has been excluded from the case, evidence of diminished mental capacity will not be admitted. Appellant here argues that the evidence adduced in his bill of exceptions should come in under the exception to the general rule noted above.

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

      . At the hearing on appellant’s motion for new trial and in his motion for rehearing appellant alludes to V.T.C.A. Penal Code, § 19.06 as authority for the admissibility of his proffered evidence. Section 19.06 reads:
      "In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense."
      Assuming arguendo that the evidence of a possible defect of impulse control was a "relevant ... circumstance! ] going to show the condition of the mind of the accused at the time of the offensef,]” and therefore admissible under this provision, failing to admit it would have been harmless. This is so because, while it may have been relevant, nevertheless, as we have demonstrated in our rejection of such evidence under the doctrine of diminished responsibility, it was not material to the establishment of any operative issue in the guilt phase of the trial.

      . Section 1321 states:
      "The reasons for this [hearsay] exception are two: (1) The inherent difficulty of obtaining any satisfactory evidence of the desired fact other than proof of tradition and reputation creates a necessity for this evidence. (2) The fact that a prolonged observation and discussion of certain matters of general interest by a whole community will sift possible errors and bring the result down to us in a fairly trustworthy form furnishes a guarantee of correctness."

      . The court of appeals felt constrained by Romo v. State, 593 S.W.2d 690 (Tex.Cr.App.1980) to allow knowledge of specific acts alone to serve as a basis for reputation testimony. To the extent that it conflicts with our present disposition, Romo v. State, supra, is overruled.

      . This, in spite of the State’s concession at trial that the evidence as to appellant’s possible problem with impulse control, while not admissible during guilt/innocence, could surely be produced as evidence in mitigation of punishment at the punishment phase of the trial. See Cowles v. State, supra.

      . The evidence at guilt/innocence showed that after the shooting took place, appellant obtained a jack from his car and proceeded to shatter virtually everything in the house that was made of glass. He then smashed the windshields and windows of two cars parked in the driveway of the residence before getting into his own car and driving to his sister's house down the street. There he admitted to his brother-in-law that he had shot the deceased.

      . This Court has not had panels since the fall of 1981.

      . The facts in Clemons v. State, supra, from the standpoint of the defendant in that cause, are egregious. The facts reflect that the defendant and two others, one of whom was her husband, at both gun and shotgun points, robbed an employee of the Austin Municipal Auditorium of his owner’s money and robbed him of his personal property. Acting upon instructions from her husband hijacker, the defendant shot the concessionaire in the back. Thereafter, thinking the concessionaire was dead, the trior fled. The defendant and her husband were arrested in Kansas City, where they had apparently gone to commit more armed robberies. But for a miracle, one or more of the arresting police officers would have been shot to death by the defendant. Your guess is as good as mine why this "rational” jury chose to mete out a mere twenty-five (25) years.


author: W.C. DAVIS, Judge.

text:
    Ex Parte Jodie A.D. HILLIARD, III.
    No. 68963.
    Court of Criminal Appeals of Texas, En Banc.
    March 6, 1985.
    Rehearing Denied April 17, 1985.

      James Clark, Snyder, for appellant.
    Russell Carroll, Asst. Dist. Atty., Sweet-water, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

This is an application for a post conviction writ of habeas corpus. See Art. 11.07, V.A.C.C.P. Applicant pled guilty to burglary with the understanding that he could appeal the denial of his pre-trial motion to dismiss, which alleged a violation of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P. His conviction in Cause No. 63,808 was affirmed in an unpublished per curiam opinion delivered June 25, 1980. 600 S.W.2d 341. The panel opinion held that his guilty plea waived his right to appeal his speedy trial claim.

In Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983) we held that such rights claimed by an accused under the Texas Speedy Trial Act are not lost by a subsequent guilty plea. Accordingly, we deny applicant’s request for relief in the form of a plea withdrawal, but we grant his underlying request for appellate review of his speedy trial contention. We will treat the merits of his speedy trial claim on the basis of the record in his original appeal, our Cause No. 63,808.

Applicant was arrested on August 13, 1978, for the offense of burglary. He was indicted for that burglary on September 11, 1978. Subsequently, on October 13, applicant was notified that a hearing would be held concerning a violation of his parole, based in part on the aforementioned burglary.

Applicant waived his right to an on-site hearing concerning his parole violation, admitted the parole violation, and was sent to the Texas Department of Corrections in Huntsville for a hearing on the violation. The hearing was scheduled for November 1, 1978, but, for reasons not shown in the record, was not held until December 13.

At the hearing on his motion to dismiss, applicant argued that because the State announced ready for the first time on January 8, 1979, 149 days after his arrest for the burglary, the burglary case should be dismissed pursuant to Art. 32A.02, V.A. C.C.P. The trial court denied the motion, ruling that 59 days should be excluded from the calculations, thus bringing the State into compliance with the statutory limits. The court ruled that the excluded days were from October 24, the date that applicant was sent to Huntsville, to December 21, the date his motion to dismiss was received.

The State’s announcement of ready within the statutory time period establishes a prima facie case of compliance with the Texas Speedy Trial Act. The burden is then on the defendant to show that the State was not ready within the time limit. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). If the State announces ready at a time not within the applicable limits and does not say that it was ready within the statutory time limit, then the burden is on the State to prove that certain times are excludable under Section 4 of the Act, so as to bring the State within the time limit. Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980).

The latter rule applies in the instant ease. Applicant was arrested August 13, 1978, and the State announced ready January 8, 1979, 149 days after the commencement of the action. The State did not say they had been ready before January 8. Thus, the State had the burden to prove that certain time could be excluded. Pate, supra.

The State’s sole argument is that applicant’s waiver of an on-site hearing and subsequent transfer to Huntsville was a voluntary act and relieved them of the requirement to be ready for trial within 120 days of applicant’s arrest. We do not agree.

The Speedy Trial Act places the onus on the State to be ready for trial. In Newton v. State, 641 S.W.2d 530, 531 (Tex.Cr.App.1982) we said:

Because the statute specifically excludes time periods when the defendant is absent under the limited circumstances stated in Sec. 4(4), (5) and (9) quoted above, it is obvious that mere absence of the defendant is a circumstance that, except for those specific statutory exclusions, does not toll the statute and therefore prevents the State from being ready within the meaning of the statute. If the absence of the defendant was intended by the Legislature to have no effect on the readiness of the State, there would be no need for the statutory exclusions of Sec. 4(4), (5) and (9).

Also, if a defendant is absent or causes the delay by attempting to avoid apprehension, the State might well be permitted to exclude certain time under the provisions of the Act. Hamilton v. State, 621 S.W.2d 407 (Tex.Cr.App.1981), Newton, supra. We do not believe that applicant’s actions are of this nature.

We must examine the facts of the case to determine if certain times are excludable under Section 4 of the Act.

Sec. 4 states in pertinent part:

In computing the time by which the state must be ready for trial, the following periods shall be excluded:
(1) a reasonable period of delay resulting from other proceedings involving the defendant, including but not limited to proceedings for the determination of competence to stand trial, hearing on pretrial motions, appeals, and trials of other charges;
* * ⅜ ⅜ ⅜ ⅜:
(5) a period of delay resulting from the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resists being returned to the state for trial;
(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial; and
(10) any other reasonable period of delay that is justified by exceptional circumstances.

Subsections (5) and (9) do not apply because the record contains no evidence that the State exerted any effort or attempted to return applicant from Huntsville to Nolan County for trial, or that applicant resisted return. Similarly, there is no evidence that applicant’s confinement in Huntsville was an exceptional circumstance under subsection (10).

Subsection (1) presents the most likely argument for the exclusion of time in the instant case. The State is permitted to exclude “a reasonable period of delay resulting from ... trials of other charges.” (emphasis added). Subsection (1) permits exclusion of time for proceedings which must be carried out before a defendant can be tried—competency hearings, pre-trial matters, and also excludes time involving other proceedings, obviously because when a defendant is being tried on other charges, he cannot possibly be in two places at one time. Necessarily then, this section contemplates two things: reasonable delay and other proceedings which cause the de-

lay in the trial of the case at issue. See Taylor v. State, 666 S.W.2d 157 (Tex.App. —Houston (14th Dist.), 1984).

In the instant case the State did not present any evidence to show why a one day hearing regarding a parole violation prevented them from bringing the applicant back for trial within 120 days of his arrest. Applicant was arrested on August 13, and remained in Nolan County jail until October 24. The State made no attempt to be ready for trial during that time, and this time was not excluded. Applicant was then confined in Huntsville from October 24, 1978 until the day of trial January 8, 1979. The record does not show that the State made any attempt to bring applicant back to Nolan County until January 8. The crux of the issue is that there is no evidence that the parole violation hearing prevented the State from trying applicant on the burglary ease and no reasons presented to show that the time spent in Huntsville was a period of reasonable delay.

It is the State’s burden to show why all or certain portions of the time that applicant was confined in Huntsville is excluda-ble—that the delay from the other proceeding is reasonable and causes the delay in trying applicant in the burglary case. See Golden v. State, 672 S.W.2d 895 (Tex.App. —Houston, (1st Dist.) 1984); Flores v. State, 647 S.W.2d 363 (Tex.App.—Corpus Christi, 1982). Compare Parish v. State, 632 S.W.2d 200 (Tex.App.—Ft. Worth, 1982) in which the defendant was in another jurisdiction pending trial and numerous pre-trial hearings were apparently involved.

In Madrigal v. State, 634 S.W.2d 782 (Tex.App.—Austin, 1982) the defendant agreed to proceed with a probation revocation hearing prior to being tried on another offense in the same jurisdiction. The defendant then sought and agreed to several delays in the revocation hearing. The court of appeals held that the defendant could not obtain relief on speedy trial grounds in a case delayed because of proceedings in another case, the revocation, involving delays requested or agreed to by the defendant.

Subsection (4) does not state that any delay due to other proceedings is excluda-ble, it states that a reasonable delay is excludable. Subsection (4) does not mean that the State can simply point to a setting date in another action involving the defendant and conclude that any time that defendant is detained falls within excludable provisions.

In the instant case the only evidence that the State introduced was testimony from a parole supervisor and documents showing that applicant had waived his on-site hearing on October 18, that he was sent to Huntsville on October 24, that a hearing was scheduled for November 1 at the Texas Department of Corrections, that such hearing was held on December 18, and that the State announced ready on January 8, 1979. There is no evidence of any motions, depositions or other reasons that applicant had to remain in Huntsville rather then be transferred to Nolan County for trial. It also appears that the parole hearing, when it was finally held, occurred on one day. The record does not show that the parole hearing caused the delay in bringing applicant to trial. No reason was offered as to why the prosecutor did not or could not have brought applicant back for trial. Nor does it show why the specific time excluded was reasonable. The State has failed to carry its burden under Sec. 4(1) of Art. 32A.02 and show that the delay was reasonable and that the delay from the other proceeding caused the delay in the cause at issue. Applicant is entitled to relief. The judgment of the trial court is vacated and the prosecution is ordered dismissed.

McCORMICK and WHITE, JJ., dissent.

      . Davis Linn, the parole supervisor for the Abilene District, testified that when the Board of Pardons and Parole issues a warrant for a parole violator, the parolee is served with notice of the parole violation. He has the right to two hearings, an on-site hearing at the place of arrest, and another hearing at the Diagnostic Unit of the Texas Department of Corrections. The parolee can waive one or both hearings. In order to waive the on-site hearing, he must admit to one or more rule violations.

      . Art. 32A.02, Sec. 1: “A court shall grant a motion to set aside an indictment, information. or complaint if the state is not ready for trial within: (1) 120 days of the commencement of a criminal action if the defendant is accused of a felony.”

      . The filing of a motion to dismiss does not toll the time limits. Rather, the State’s announcement of ready tolls the time under the statute.