author: TIJERINA, Justice.

text:
    Richard RUSSELL, appellant, v. STATE of Texas, appellee.
    No. 04-83-00499-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 30, 1985.

      Gerald H. Goldstein, San Antonio, for appellant.
    Sam Millsap, Jr., Dist. Atty., E. Dickinson Ryman, Linda C. Anderson, Asst. Criminal Dist. Attys., San Antonio, for appellee.
    Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

This is a probation revocation case. Appellant was charged by indictment with aggravated promotion of prostitution and, on trial before the court, pleaded nolo conten-dere. The trial court deferred adjudication of guilt and placed appellant on probation for a term of six (6) years and further assessed a Five Thousand Dollar ($5,000.00) fine.

At issue is condition of probation number sixteen (16), which requires appellant to comply completely with each of the provisions of attached “Orders and Judgment of Permanent Injunction, No. 81-CI-16876,” incorporated by reference in full. The State filed a motion to enter adjudication of guilt and revoke probation, alleging that appellant violated Condition No. 16 as follows:

VIOLATED CONDITION NO. 16: PARAGRAPH I
That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July A.D., 1983, did then and there fail to comply completely with each of the provisions of attached “Orders and Judgment of Permanent Injunction, No. 81-CI-16876,” incorporated by reference herein in full, against the peace and dignity of the State, and in violation of Condition No. 16.
VIOLATED CONDITION NO. 16: PARAGRAPH II
That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July, A.D., 1983, did then and there use the premises at 451 McCarty Road, San Antonio, Texas, for the promotion and aggravated promotion of prostitution and compelling prostitution, against the peace and dignity of the State, and in violation of Condition No. 16.
VIOLATED CONDITION NO. 16: PARAGRAPH III
That thereafter and during the term of said Probation, the defendant, Richard Russell, in the County of Bexar and the State of Texas, and on or about the 17th day of July A.D., 1983, did then and there permit, allow, maintain, operate, supervise, manage, control, finance, rent, lease, and occupy the premises at 451 McCarty Road, San Antonio, Texas, for the purposes of promoting and aggravated promotion of prostitution, against the peace and dignity of the State, and in violation of Condition No. 16.

Appellant pleaded not true and after a full evidentiary hearing the court found that appellant had violated the terms of his probation. He was thus adjudicated guilty of aggravated promotion of prostitution. The probation was revoked and sentence was imposed.

Appellant contends that the trial court erroneously revoked his probation for violation of Condition No. 16 as follows: (1) condition of probation No. 16 is not included in the conditions of probation provided by statute; the court added this condition in violation of article II, section 1 of the Texas Constitution; (2) appellant was denied due process by the court’s failure to file written findings; (3) Condition No. 16 was vague and indefinite and therefore invalid; (4) Condition No. 16 does not have a reasonable relationship to the treatment of the accused and the protection of the public; and (5) the evidence was insufficient to prove the violation by a preponderance of the evidence.

It is well settled that no appeal may be taken from the hearing in which a trial court determines to proceed with an adjudication of guilt on the original charge. Daniels v. State, 615 S.W.2d 771, 771 (Tex.Crim.App.1981); Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App.1980); Williams v. State, 592 S.W.2d 931, 932 (Tex.Crim.App.1979). Because all of appellant’s grounds of error involve the hearing from which he cannot appeal, he has presented nothing for our review. Nevertheless, appellant has raised questions of constitutional dimension. We will, therefore, address his grounds of error.

Appellant first complains that Condition No. 16 is unconstitutional because it is not one of the conditions statutorily provided by the legislature. The conditions of probation which the court may impose when probation is recommended by the jury are limited to the statutory conditions provided for in TEX.CODE CRIM.PROC.ANN. art. 42.12, § 6 (Vernon Supp.1984). Morales v. State, 541 S.W.2d 443, 445 (Tex.Crim.App.1976). In the instant case, probation was granted by the court. Therefore, the trial court is not limited to the probationary conditions set forth in § 6 of art. 42.12, supra, provided the condition is a reasonable one. Chacon v. State, 558 S.W.2d 874, 875 (Tex.Crim.App.1977). The court has wide discretion in selecting reasonable conditions of probation; however, the conditions should have a reasonable relationship to the treatment of the accused and the protection of the public. Macias v. State, 649 S.W.2d 150, 152 (Tex.App.—El Paso 1983, no pet.).

Condition No. 1 provides that appellant while on probation is not to “commit nor be convicted of any offense against the laws of the State of Texas; or any other State or of the United States.” Condition No. 16 prohibits appellant from engaging directly or indirectly in the same criminal activity that resulted in his prosecution. Therefore, Condition No. 16 could be construed as an expansion of Condition No. 1, providing the desired specificity. See Tyra v. State, 644 S.W.2d 865, 869 (Tex.App.—Amarillo 1982, no pet.), citing Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App.1974). There is nothing in this record to indicate that the trial court’s imposition of the added condition of probation constituted an infringement of legislative powers. Ground of error one is overruled.

In his second ground of error, appellant complains that the trial court erred in failing to make written findings in support of its order revoking probation. Appellant cites Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656, 664 (1973), which held that minimum requirements of due process include a written statement by the fact finder as to the evidence relied on and reasons for revoking probation. Texas courts, however, require a defendant to make a request for specific findings. In the absence of such a request, the failure of the trial court to make specific findings in the order revoking probation is not reversible error. King v. State, 649 S.W.2d 42, 46 (Tex.Crim.App.1983, en banc); Bradley v. State, 608 S.W.2d 652, 655 (Tex.Crim.App.1980); Clapper v. State, 562 S.W.2d 250, 251 (Tex.Crim.App.1978). In the instant case, appellant concedes that no request was made for specific findings. Appellant was present and represented by counsel at the hearing on the motion to revoke his probation. He presented witnesses on his behalf and contested every issue. The order revoking probation is supported by a preponderance of competent evidence introduced at the evidentiary hearing. Unlike McDonald v. State, 608 S.W.2d 192 (Tex.Crim.App.1980), there was no reliance by the trial court on “judicial notice” of the testimony in the prior proceedings. Therefore, we conclude that the finding recited in the court’s order that the evidence sustained the violations alleged in the motion to revoke probation satisfies due process requirements. The second ground of error is overruled.

Appellant next complains that Condition No. 16 is vague and indefinite and does not inform him with sufficient certainty as to the prohibited conduct because: (1) the number of persons who might disobey the injunction is indefinite; and (2) “using the premises ... in any ... manner for the promotion or aggravated promotion of prostitution or compelling prostitution” does tell him what he must do to avoid revocation. Generally, he argues that paragraphs II and III do not give him notice of the proscribed conduct. It is obvious that the language of the injunction tracks TEX. PENAL CODE ANN. § 43.-04(a) (Vernon 1974), Aggravated Promotion of Prostitution, which provides in pertinent part as follows:

A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.

A similar challenge that the statute was void for being vague and indefinite was made in Floyd v. State, 575 S.W.2d 21, 24 (Tex.Crim.App.1978), appeal dismissed, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), and the court held:

Both common logic and the rules of grammar dictate that a prostitution enterprise that uses prostitutes necessarily uses them for prostitution.... The terms complained of by appellant do not render Section 43.04 so ambiguous and vague that men of ordinary intelligence would guess at its meaning or differ as to its application.... Appellant had sufficient notice of the type of conduct proscribed by the statute and therefore he was not deprived of procedural due process.

See also Wood v. State, 573 S.W.2d 207, 219 (Tex.Crim.App.1978).

In Curtis v. State, 548 S.W.2d 57, 58 (Tex.Crim.App.1977), cited by appellant, the “condition” merely recited, “remain within a specified place.” In this case, condition No. 16 specifically prohibits appellant from directly or indirectly using the premises at 451 McCarty Road, San Antonio, Texas, for promotion and aggravated promotion of prostitution. This, without more, is sufficient notice to appellant of the conduct proscribed. “There is always value in making all conditions explicit, primarily as an aid to the offender in increasing his understanding of what is expected of him.” Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App.1974). The third ground of error is overruled.

The fourth ground of error is that Condition No. 16 does not have a reasonable relationship to the accused and the protection of the public as required by Hernandez v. State, 556 S.W.2d 337 (Tex.Crim.App.1977), and Tamez v. State, 534 S.W.2d 686 (Tex.Crim.App.1976), cited by appellant. A probationer, like a parolee, has the right to enjoy a significant degree of privacy. Basaldua v. State, 558 S.W.2d 2, 7 (Tex.Crim.App.1977). A probationer has a diminished expectation of privacy by virtue of the “conditions” but his rights may be diminished only to the extent necessary for his reformation and rehabilitation. Owens v. Kelley, 681 F.2d 1362, 1367 (11th Cir.1982). In United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975), the court held that probationary conditions which would allow any law enforcement officer to search a probationer at any time were over-broad and not reasonably related to the purpose of the act. The court further stated that the conditions which can be reasonably said to be proper are those that contribute significantly both to the rehabilitation of the convicted person and to the protection of society. See also United States v. Tonry, 605 F.2d 144 (5th Cir.1979).

In the case at bar, the condition in question sought the rehabilitation of appellant by supervising and restricting his involvement with the operation of illegal activity at 451 McCarty Road in San Antonio, Texas. According to the stipulated evidence, said location was used for the promotion and aggravated promotion of prostitution. Additionally, the condition acts to deter appellant from criminal activity, complying with the probationary purpose of protecting society. One probation violation will support the court’s order to revoke probation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980). Appellant’s fourth ground of error is overruled.

In reviewing the sufficiency of the evidence question, we are required to view the evidence in the light most favorable to the court’s judgment revoking probation. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981). The State satisfies its burden of proof when the greater weight of the credible evidence, i.e., the preponderance of the evidence, creates a reasonable belief that the probationer has violated a condition of his probation. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App.1980). In probation revocation proceedings, the trial court is the sole trier of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Story v. State, 614 S.W.2d 162, 164 (Tex.Crim.App.1981); Battle v. State, 571 S.W.2d 20, 21 (Tex.Crim.App.1978). Appellate review of a revocation of probation proceeding is limited to a determination of whether the trial court abused its discretion. McDonald v. State, supra. In this case, the State established by a preponderance of the evidence that appellant violated Condition No. 16, paragraph III, by maintaining, operating, supervising, managing, controlling, financing and occupying the Paris Modeling Studio for the purpose of prostitution and aggravated prostitution, at 451 McCarty Road, San Antonio, Texas. The State witness, Sarah Lou Brach, testified that she worked at the Paris Modeling Studio at 451 McCarty from July 13 or 14, 1983, to July 19, 1983, and that during her employment appellant, who was physically present at the studio every day, gave orders to women who worked at the studio, inspected the books, and, together with Stevie Parmeter, obtained a d/b/a permit and new bank account for continuing the operation. Brach further testified that she was arrested at the studio on July 19th and that an attorney retained by appellant posted her bond. Appellant admitted his presence at the business after July 15th, but he denied any interest in the business and claimed he was there solely to explain the payroll system to the new owner. He further testified that he believed his attorney had obtained an extension of the deadline for his sale of the business. The trial judge, as the trier of fact, chose to believe the testimony of the State’s witness. Ground of error five is overruled.

In his sixth ground of error, appellant complains that the trial court erred in not halting the revocation proceedings sua sponte and conducting a competency examination when appellant’s counsel testified that he had some reservations about appellant’s mental competence. It is well settled that a trial court is required to sua sponte hold a competency hearing only when sufficient facts or circumstances are brought to the court’s attention that create a reasonable doubt as to the competence of the appellant. See, e.g., Hackbarth v. State, 617 S.W.2d 944, 948 (Tex.Crim.App.1981); Morales v. State, 587 S.W.2d 418, 421 (Tex.Crim.App.1979); Perryman v. State, 507 S.W.2d 541, 543 (Tex.Crim.App.1974). The test of legal competence is whether the accused has sufficient present ability to consult with his lawyer and a reasonable degree of rational understanding of the proceedings against him. Morales, 587 S.W.2d at 421; Paul v. State, 544 S.W.2d 668, 670 (Tex.Crim.App.1976); TEX.CODE CRIM.PROC.ANN. art. 46.-02(1)(a) (Vernon 1979). Appellant’s testimony during the hearing was clear and lucid; he made intelligent responses to questions propounded to him. In fact, appellant’s counsel readily conceded that appellant has a factual and rational understanding of the charges against him. Appellant’s sixth ground of error is overruled.

Finally, appellant urges that the trial court erred in overruling his motion to quash because the State’s motion to enter adjudication of guilt and revoke probation was not verified by the prosecutor. Pollard v. State, 353 S.W.2d 449 (Tex.Crim.App.1962), the sole case which appellant offers as authority for this ground of error, does not require verification of a motion to revoke. Additionally, the Code of Criminal Procedure is devoid of any such requirement. Appellant’s seventh ground of error is overruled.

The judgment of the trial court is affirmed.

      . The Order and Judgment of Permanent Injunction enjoined and restrained appellant in the following respects:
      1. using the premises at 451 McCarty Road, San Antonio, Texas, or the premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, or the promotion or aggravated promotion of prostitution, or compelling prostitution, as set forth by the provisions of TEX.PENAL CODE ANN. §§ 43.01-43.05 (Vernon 1974 & Vernon Supp.1982-1983);
      2. permitting, allowing, maintaining, operating, supervising, managing, controlling, financing, renting, leasing, or occupying the premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, for the promotion or aggravated promotion of prostitution, or
      3. using, permitting, allowing, maintaining, operating, supervising, managing, controlling, renting, financing, leasing, or occupying the premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, for any commercial enterprise, identified as a massage establishment, massage parlor, spa, hot tub emporium, bath house, dance or dancing studio, nude studio, modeling studio, love parlor, or a business by any other name or commercial identity whatsoever, whose business in any manner involves the offering of a service or services intended to provide sexual stimulation or sexual gratification to any customer;
      4. using, permitting, allowing, maintaining, operating, supervising, managing, controlling, renting, financing, leasing, or occupying the premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner, for any commercial enterprise involving massage; and
      5. violating any provision, article or section of TEX.REV.CIV.STAT.ANN. arts. 2372v & 2372w (Vernon Supp.1982-1983); of the Regulations of Bexar County, Texas, for Massage Parlors in effect at any time; of the Regulations of Bexar County, Texas, for the Location of Certain Sexually Oriented Commercial Enterprises in effect at any time; of the Code of the City of San Antonio regarding massage businesses, masseurs and sexually oriented commercial enterprises, in effect at any time; and of TEX.PENAL CODE ANN. §§ 43.01-43.-05 (Vernon 1974 & Vernon Supp.1982-1983), or any other state penal law regarding prostitution in effect at any time on premises at 451 McCarty Road, San Antonio, Texas, or premises at any other location within the geographical limits of Bexar County, Texas, in any place or manner.


source: Caselaw Access Project

license: Public Domain

text:
    Pedro Villegas GARCIA, Appellant, v. STATE of Texas, Appellee.
    No. 04-84-00149-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 30, 1985.

      Lauro Benavides, Laredo, for appellant.
    Anna L. Cavazos, Asst. Dist. Atty., Laredo, for appellee.

      Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from a conviction for aggravated assault with a deadly weapon. TEX.PENAL CODE ANN. § 22.02(a)(4) (Vernon Supp.1984). The jury found appellant guilty as charged in count I of the indictment and assessed the punishment at five years’ confinement plus a fine of five thousand ($5,000) dollars.

Appellant’s first assertion of error is that there is insufficient evidence to support the conviction; this requires a brief factual background. The victim, Leo Hernandez, was struck by an automobile on February 8, 1983, at the intersection of Park Street and San Bernardo Avenue in Laredo. He identified the appellant as the driver of the vehicle that struck him. Hernandez stated that he tried to avoid the approaching vehicle but that appellant accelerated and swerved in his direction to strike him. The impact threw Hernandez onto the windshield of the vehicle; he sustained fractures of the left leg requiring surgery and severe injuries to his nose and hip.

The standard for review of a sufficiency of the evidence question requires that we determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh’g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981). The trial judge is the trier of fact at the hearing on a motion for new trial; the granting of a new trial is within his sound discretion, and his findings will not be disturbed unless there is a clear showing of abuse of discretion. Jones v. State, 596 S.W.2d 134, 138 (Tex.Crim.App.1980); Davis v. State, 649 S.W.2d 380, 382 (Tex.App.—Fort Worth 1983, pet. ref’d). In this case the testimony of the victim was sufficient to raise the issue of aggravated assault with a deadly weapon. See Grandham v. State, 528 S.W.2d 220, 222 (Tex.Crim.App.1975). Thus, we view the direct and circumstantial evidence in the light most favorable to the prosecution. The vehicle in question was owned by and registered to Sofia Gonzalez, appellant’s girlfriend. She had no personal knowledge as to who was driving the car at the time and place in question, but she testified that appellant had possession of her vehicle every day during the week. The accident occurred on a week-day. Officer Telles investigated the accident and was given a description of the fleeing vehicle, including that the left side of the windshield was broken. The windshield wiper arm and blade were recovered at the scene. Oscar Castaneda testified that appellant brought the vehicle to his place of employment, Rivera’s Auto Glass Shop, to have the windshield replaced. He stated that the left side of the windshield was broken, and he identified the windshield wiper arm as belonging to the vehicle in question. Dr. Cantu testified that the victim sustained a closed comminuted fracture on the left leg, multiple abrasions, skin loss on the left side of the nose, a possible broken nose and a possible hip concussion. The repair of the leg fracture required surgery. The victim testified and identified appellant as the driver of the vehicle that struck him. He further stated, “I tried to avoid it, but he just stepped on the gas and struck me.” We therefore conclude that there was sufficient evidence for the rational trier of fact to have found the essential elements of the offense charged beyond a reasonable doubt. Appellant has not shown abuse of discretion by the trial court in denying the motion for new trial. Ground of error one is overruled.

Appellant’s second complaint is that the trial court erroneously denied the motion for a new trial since there was no finding by the jury that the automobile was a deadly weapon. The motion for a new trial on record is predicated on two grounds: (1) insufficient evidence to support the conviction and (2) no proof beyond a reasonable doubt on the material allegations of the indictment. We must assume that appellant wants us to consider this assertion of error under TEX.CODE CRIM. PROC.ANN. art. 40.03(9) (Vernon 1979). Appellant’s brief does not argue nor does he cite any authority in support of his contention. McWherter v. State, 607 S.W.2d 531, 536 (Tex.Crim.App.1980); Zuniga v. State, 490 S.W.2d 577, 579 (Tex.Crim.App.1973). Moreover, this question is raised for the first time on appeal. The assignment of error is waived as there is nothing presented for appellate review. Martin v. State, 610 S.W.2d 491, 493 (Tex.Crim.App.1980); Craig v. State, 594 S.W.2d 91, 96 (Tex.Crim.App.1980). Nevertheless, we have reviewed the entire record and find no fundamental error. Ground of error two is overruled.

In his third ground of error, appellant alleges that the charge is fundamentally defective for failure to require the jury to find that an automobile by the manner of its use was a deadly weapon, citing as authority Windham v. State, 530 S.W.2d 111 (Tex.Crim.App.1975). The record reflects that appellant neither objected to the court’s charge or to any omission in the court’s charge nor requested a special charge. The general rule in Texas is that where a defendant fails to object to the trial court’s charge or request a special charge, any alleged error is waived. Manry v. State, 621 S.W.2d 619, 623 (Tex.Crim.App.1981); Romo v. State, 568 S.W.2d 298, 303 (Tex.Crim.App.1978); see also TEX. CODE CRIM.PROC.ANN. art. 36.14 (Vernon Supp.1984). It has been held that fundamental error exists when a charge (1) authorizes any dimunition of the State’s burden of proof; (2) authorizes conviction for conduct which does not constitute a criminal offense; or (3) authorizes conviction of an offense of which the accused has no notice. See Cumbie v. State, 578 S.W.2d 732, 733-735 (Tex.Crim.App.1979). In order to find fundamental error in the charge, there must be such injury to the rights of a defendant that he does not receive a fair and impartial trial. Grady v. State, 634 S.W.2d 316, 318 (Tex.Crim.App.1982); TEX.CODE CRIM.PROC.ANN. art. 36.19 (Vernon 1981).

In Windham, supra, there was a failure to require the jury to find that the knife used in the assault was a deadly weapon. In the instant case the charge defines a deadly weapon. The paragraph in the charge which applies the law to the facts requires the jury to find that on the day in question appellant did recklessly use a deadly weapon, to wit: a 1982 Buick motor vehicle, that in the manner of its use and intended use was capable of causing death and serious bodily injury. The charge further sets out all the acts that would constitute reckless conduct as charged by indictment. The jury was properly instructed as to the circumstances that would justify a finding of guilty or an acquittal. Our review of the whole charge does not reflect that appellant was deprived of a fair and impartial trial; thus, there is no fundamental error in the charge. The claim of error, as alleged, was waived by appellant’s failure to object to the charge or request a special charge. Ground of error three is overruled.

Lastly, appellant complains that the trial court committed reversible error in denying the motion for a new trial, based on his allegation that the indictment did not contain the essential elements of the offense. Specifically, he argues that omitted from the indictment were the culpable mental states of “intentionally and knowingly.” This contention was neither raised in the motion for a new trial nor argued during the trial; appellant also failed to file a motion to quash the indictment. This issue presented for the first time on appeal would ordinarily be waived as nothing is presented for appellate review. Martin v. State, supra.

In the case at bar the relevant part of the indictment charges that on or about the 8th day of February, A.D. 1983, appellant “did then and there recklessly use a deadly weapon, to wit: a 1982 Buick motor vehicle, that in the manner of its use and intended use was capable of causing death and serious bodily injury by recklessly driving and operating said motor vehicle upon the left side of a public road there situate when not overtaking and passing another vehicle proceeding in the same direction.” TEX.PENAL CODE ANN. § 22.-01 — Assault—provides in pertinent part, viz:

(a) A person commits an offense if the person:
(1) intentionally, knowingly or recklessly causes bodily injury to another ...

TEX.PENAL CODE ANN. § 22.02 — Aggravated Assault — provides in pertinent part, viz:

(a) A person commits an offense if the person commits assault as defined in Section 22.01 of this Code and the person:
(1) causes serious bodily injury to another
* * >jc sje * *
or
(4) uses a deadly weapon.

Therefore, the elements of an offense under section 22.02(a)(1) or (4) are: (1) a person (2) intentionally, knowingly or recklessly (3) causes serious bodily injury to another or (4) uses a deadly weapon. Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978). Section 22.02(a) is in the disjunctive: the offense is complete if the assault causes serious bodily injury or is effected by the use of a deadly weapon. Teal v. State, 543 S.W.2d 371, 373 n. 4 (Tex.Crim.App.1976), overruled on other grounds, Flanagan v. State, 675 S.W.2d 734, 742 (Tex.Crim.App.1984).

Recklessly is a culpable mental state for assault and may be alleged in lieu of knowingly and intentionally. See 2 Branch (3d Edition) TEX.PENAL CODE ANN. § 22.02 — Explanatory Comment at 186. TEX.CODE CRIM.PROC.ANN. art. 21.15 requires that when a defendant is charged with acting recklessly, the indictment must allege with reasonable certainty the act relied upon to constitute recklessness. The present indictment clearly alleges with reasonable certainty the act relied upon to constitute recklessness. TEX.PENAL CODE ANN. § 6.03(c). A similar indictment was approved in Townsley v. State, 538 S.W.2d 411, 412 (Tex.Crim.App.1976). Therefore, we have determined that this indictment sufficiently charges the elements of the offense under section 22.02, supra, and is not fundamentally defective. Ground of error four is overruled.

The judgment of the trial court is affirmed.


author: CANTU, Justice.

text:
    SVM INVESTMENTS, Appellants, v. MEXICAN EXPORTERS, INC., d/b/a ATM Gamesa, Appellees.
    No. 04-83-00279-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 30, 1985.
    Rehearing Denied Feb. 26, 1985.

      Jerry R. Houser, Benjamin F. Young-blood, III, San Antonio, for appellants.
    Stephen Parten, San Antonio, Alonzo Diaz, Laredo, for appellees.
    Before ESQUIVEL, CANTU and DIAL, JJ.
   OPINION

CANTU, Justice.

Suit was brought by Mexican Exporters, Inc. d/b/a ATM Gamesa (Gamesa) against John A. Guerrero individually and d/b/a West Coast Import Sales, West Coast Imports and Anthony’s International on a debt arising out of credit sales of wholesale foodstuffs. SVM, Investments, (SVM), a partnership consisting of Mark D. Girgus, Samuel Girgus and Victor K. Dullye, was added as a defendant because of alleged violation of the Bulk Transfers Act.

Trial was to the court which entered judgment against Guerrero for the amount of $53,476.96 and against SVM for a joint and several portion of Guerrero’s debt in the amount of $30,467.00.

SVM contended at trial that Gamesa’s suit was barred by the six month statute of limitations imposed by the Bulk Transfers Act. TEX.BUS. & COM.CODE ANN. i 6.111 (Tex.UCC) (Vernon 1968). Gamesa responded that even though suit was brought in excess of six months after the bulk transfer, its cause of action was not barred because SVM and Guerrero had concealed the transfer by their failure to give Gamesa the statutory notice required, thereby tolling the statute.

SVM admitted that Gamesa was not given written notice but took the position that it and Guerrero took no action to affirmatively conceal the transfer, but in fact gave oral notice of the transfer to one of Game-sa’s officers.

Guerrero does not appeal from the judgment entered, however, SVM raises five points of error in which it challenges the trial court’s findings of fact and conclusions of law.

The pertinent findings of fact and conclusions of law being challenged recite:

Findings of Fact
* * * ⅜ ⅜ sfc
5. That the said transfer was concealed by the failure of any of the Defendants to give Plaintiff notice thereof.
⅝ ⅝ jje ⅜ ⅜ ⅜
7. That the Plaintiff first discovered the bulk transfer to Anthony’s International, Ltd. on March 12, 1981.
* * ⅝ * ⅜ sjt
Conclusions of Law
4. Defendants did improperly conceal said transfer by its (sic) failure to give proper notices thereof.
5. That due to the concealment of the said transfer by the Defendants, the limitations period set out in Section 6.111 of the Texas Business and Commerce Act did not bar Plaintiff’s cause of action, it being brought within 6 months of Plaintiff's discovery of the transfer.
* * * * * *

SVM contends generally that the evidence is factually and legally insufficient to support a trial court finding that there was concealment by the failure of defendants to give notice of the bulk transfer and that the evidence is factually insufficient to support a finding that Gamesa did not discover the bulk transfer until March 12, 1981.

SVM further contends that the trial court erred in concluding that mere failure to give the notice required under TEX. BUS. & COM.CODE ANN. § 6.105 (Tex. UCC) (Vernon 1968) constitutes concealment as a matter of law.

Finally, SVM claims the trial court erred in not barring Gamesa’s suit since it was brought in excess of six months after the date of the bulk transfer.

Because we sustain appellant’s contention that the trial court incorrectly construed the meaning of concealment under the statute we do not address the other points raised.

The question before us then is whether mere failure to give the required statutory notice constitutes concealment as a matter of law such as to toll limitations until the discovery of the transfer and for a period of six months thereafter.

Gamesa is a Texas Corporation engaged in the importation of various Mexican foodstuffs including cookies, crackers, sauces and Jalapenos. The foodstuffs are manufactured in Mexico, imported to Texas, and distributed on a wholesale basis by several different companies and individuals. One of the distributors of Gamesa’s items was Guerrero, who at various times transacted business as an individual, through partnerships and through a corporation.

Initially Guerrero operated through a partnership with one Frank Sepulveda as West Coast Imports. The partnership was dissolved and Guerrero thereafter did business individually as West Coast Import Sales. At some point Guerrero formed a Texas Corporation known as Anthony’s International, Inc. This corporation did little business but it did manage to borrow money and execute promissory notes to the Texas Bank of San Antonio. Guerrero operated Anthony’s International, Inc. simultaneously with West Coast Import Sales but eventually the corporation’s charter was forfeited for failure to pay franchise taxes.

Guerrero, acting through his various entities, purchased goods from Gamesa and sold them to several large grocery chains including H.E. Butt, Weingartens, Kroger and Consumer’s Commissary. He was highly regarded as a salesman, especially of Gamesa’s products and his sales territory included much of South Texas and extended into Houston. Guerrero maintained warehouses in San Antonio and Corpus Christi.

When Guerrero’s partnership with Se-pulveda was dissolved, Guerrero continued to operate West Coast Imports in his individual capacity. He, however, lacked capital, facilities and management. Gamesa agreed to sell Guerrero goods on credit upon Guerrero’s execution of assignments in favor of Gamesa through the Texas Bank. The procedure set up required Gamesa to advance products to Guerrero who in turn would sell them to the various grocery chains. Guerrero routinely marked his goods thirty percent above cost.

The grocery chains received their invoices from Guerrero but made their payments directly through the Texas Bank which in accordance with the assignments, placed the monies received in an account for Gamesa. Gamesa then drew upon the account to pay for the goods sold on credit to Guerrero. The amounts received by Game-sa included Guerrero’s thirty percent markup. Pursuant to the agreement, Gamesa retained ten percent of the thirty percent markup as a “kitty” so that Guerrero could eventually possess his own inventory. The remaining twenty percent was to be paid by Gamesa to Guerrero as soon as Gamesa received copies of the invoices from the grocery chains.

Although Guerrero was an excellent salesman the arrangement did not function properly and Gamesa, realizing a mounting debt on its extended credit to Guerrero, ceased selling goods to Guerrero on credit in December of 1980. Without credit from Gamesa, Guerrero’s sales practically ceased.

In early January of 1981 SVM was approached about Guerrero’s plight. SVM possessed financial and business experience and could obtain capital to invest. Following a meeting between SVM and Guerrero a new partnership was formed known as Anthony’s International, Ltd. Under the terms of the partnership, SVM contributed capital and established a line of credit at the Texas Bank and Guerrero contributed his accounts receivable and the balance of his inventory on hand. SVM provided the management services and Guerrero his sales abilities.

SVM received a management fee and expense reimbursement while Guerrero received a weekly salary. Profits were to be divided such that Guerrero would receive sixty percent and SVM forty percent.

The partnership began operations on January 31, 1981 when Guerrero conveyed his inventory to Anthony’s International, Ltd. The conveyance, it is undisputed, constituted a bulk transfer as it was a transfer, not in the ordinary course of Guerrero’s business, which consisted of a major part of the materials, supplies, merchandise and inventory of his business. The new partnership (transferee), acting through SVM, one of the new partners, demanded and received a list of Guerrero’s creditors. An inventory of the transferred properties was prepared. However, no effort was made by the parties to the new partnership to notify any of the creditors in writing of the bulk transfer. Oral notice was, however, given to Texas Bank of the transfer and a copy of the inventory was provided the bank, the only known secured creditor.

There is some evidence that Gamesa received oral notice of the transfer through one of its officers. The president of Game-sa denied receiving either written or oral notice of the transfer.

Nonetheless, it is undisputed that an officer of Gamesa met with members of the new partnership to examine books, invoices and records of Gamesa involving Guerrero’s transactions some time in the early part of February, 1981. During this same period Mark Girgus of SVM spoke by telephone with both, the president and an executive vice president of Gamesa, about the new partnership and about proposed purchases from Gamesa by the new entity.

The new partnership commenced doing business in early February of 1981. There followed a series of purchases by the new partnership from Gamesa. These purchases were on a cash basis (cashier’s checks issued by Texas Bank) and the invoices were issued by Gamesa in the name of the new entity. During one of these transactions the invoice was incorrectly prepared in the name of West Coast Imports, Guerrero’s old business, and the new partnership insisted that a corrected invoice be prepared with the new partnership name reflected as the purchaser. A new invoice was substituted by Gamesa indicating the purchaser to be Anthony’s International, Ltd.

From the time Gamesa terminated credit to Guerrero in December 1980 until suit was filed, a dispute existed between Guerrero and Gamesa. Gamesa contended that Guerrero owed it money for goods sold on credit and for advances made. Guerrero denied owing Gamesa anything claiming instead that Gamesa owed him $50,000.00 for his profit, which was being collected by Gamesa under their agreement.

On March 12, 1981, Gamesa filed a lawsuit against Guerrero seeking to recover on the debt as a sworn account and seeking a writ of attachment on Guerrero’s non-exempt property.

A writ of attachment was obtained and was attempted to be served and executed at the Anthony’s International, Ltd. warehouse on March 12, 1981. When the writ was sought to be served, the executing officer was informed by Sam Girgus that the inventory in the warehouse belonged to Anthony’s International, Ltd.

On August 21,1981, Gamesa amended its petition to the suit against Guerrero and joined SVM as a defendant alleging a bulk transfer violation.

At the time Gamesa filed suit against SVM almost seven months had elapsed from the date of the bulk transfer.

The Bulk Transfer Act requires that the transferor in a proposed bulk transfer give the transferee a list of his existing creditors, sworn to by the transferor. TEX. BUS! & COM.CODE ANN. § 6.104 (Tex. UCC) (Vernon 1968). The same provision requires that the parties prepare a schedule of the property to be transferred, sufficient to identify it. Section 6.105 provides that a bulk transfer is ineffective against any creditor of the transferor unless notice thereof is given as provided.

Section 6.107 describes the required notice, setting out its contents and the manner in which it may be delivered to the creditors.

Section 6.111 provides that:

No action under this chapter shall be brought nor levy made more than six months after the date on which the transferee took possession of the goods unless the transfer has been concealed. If the transfer has been concealed, actions may be brought or levies made within six months after its discovery.

This section permits action to be brought within six months after discovery of the transfer if it has been concealed.

Concealment

What constitutes concealment under the section appears to be a question of first impression in this State. In Hurley v. Lano International, Inc., 569 S.W.2d 602 (Tex.Civ.App.—Texarkana 1978, writ ref’d n.r.e.) the limitations provision of section 6.111 was considered but the issue of concealment never arose. The holding of the court therein extended only as far as proclaiming a suit barred when brought more than six months from the date of transfer.

A limited number of courts from other jurisdictions have touched upon the' issue of concealment in interpreting various applications of their version of section 6.111.

In some instances it has been held that concealment embodies only affirmative efforts at concealing the transfer. See Aluminum Shapes, Inc. v. K-A Liquidating Co., 290 F.Supp. 356 (W.D.Pa.1968); Charles Adler & Son, Inc. v. Di Nunzio, 5 U.C.C. Rep.Serv. (Callaghan) 743 (Pa.Ct.C.P.1967); Cf. In re Borba, Lang v. Graham, 736 F.2d 1317 (9th Cir.1984); In re Del Norte Depot, Inc. Chartered Bank of London v. Diamant, 716 F.2d 557 (9th Cir.1983).

In other instances it has been held that complete failure to comply with notice provisions was tantamount to a concealment of a transfer within the meaning of section 6.111. See E.J. Trum, Inc. v. Blanchard Parfums, Inc., 33 A.D.2d 689, 306 N.Y.S.2d 316 (1969); see also McKissick v. Foremost McKesson, Inc., 441 F.2d 811, 8 U.C. C.Rep.Serv. (Callaghan) 301 (5th Cir.1971) (dictum); Columbian Rope Co. v. Rinek Cordage Co., 314 Pa.Super. 585, 461 A.2d 312 (1983). Some legal writers have expressed the opinion that the latter position is the preferable interpretation if any effect is to be given to the concept of “concealment.” The reason given for preferring the latter approach lies in the concern that affirmative concealment might be impossible to prove-up/where there is no notice of the transfer. Otherwise, it is said, “notice can be withheld and the transferee can wait out the six months following the actual transfer in the hope that no one will learn that it had taken place until it is too late to assert an available remedy.” 3A DUSENBERG-KING, SALES AND BULK TRANSFERS UNDER THE UNIFORM COMMERCIAL CODE § 15.07 (1984); J. WHITE & R. SUMMERS, UNIFORM COMMERCIAL CODE § 19-3 (2d ed. 1980). At least one writer advocates a finding of concealment only when there is evidence that the transfer has been actively hidden from the view of creditors in some manner other than merely failing to notify them that it was made. See W. HAWKLAND, A TRANSACTIONAL GUIDE TO THE UNIFORM COMMERCIAL CODE § 3.03, at 846 (1964).

We do not quarrel with a finding of concealment when the record discloses affirmative efforts by the transferor at suppressing knowledge. Moreover, we are impressed with the reasons given for finding concealment when there has been total nondisclosure of the transfer or complete failure to comply with the notice requirement. There is, however, the situation where the transferor fails to give the notice as required by section 6.107 but does give informal notice to his creditors so that actual knowledge of the transfer is had although there is technically noncompliance with the requisites of the statute. We believe that under this situation there has not been total nondisclosure so as to mandate a finding of concealment as a matter of law. Columbian Rope Co., 461 A.2d at 312.

In the instant case the trial court held that Guerrero and SVM concealed the transfer because they failed to comply with the written notice provisions of section 6.107. The court thus concluded that Gamesa was not barred by section 6.111 from asserting its claim.

Although all the parties agree that written notice was never given the record before us belies any evidence of affirmative action at concealing the transfer. All indications are that Gamesa knew about the transfer or should have known about it through the conduct of its officers and agents in dealing with the new partnership.

On at least three'occasions Gamesa did business with the new partnership immediately after the entity was formed. On one of those occasions Gamesa’s employees were requested to correct an erroneous invoice to reflect the correct name of the purchaser. Furthermore, Gamesa’s agent met with members of the new partnership less than a month after the transfer for the purpose of examining Guerrero’s books. Gamesa through its officers and agents acquired actual knowledge of the bulk, transfer.

We hold that the concealment as contemplated by section 6.111 occurs when the record discloses affirmative efforts at concealing the transfer and when there has been complete and total failure to comply with the notice provisions of the statute. We reject the notion that mere failure to give the written notice required by the Act amounts to concealment as a matter of law such as will toll the period set out in section 6.111.

We believe this view is more in keeping with the purpose and policy of the rule in question and with the express purposes of the legislature in adopting the Uniform Commercial Code.

Since the trial court predicated concealment solely upon a failure to comply with the required statutory notice we hold that the court erred in refusing to bar Gamesa’s suit brought in excess of the statutory period provided in section 6.111.

By cross points Gamesa seeks to increase the amount of judgment granted against Guerrero and SVM. Inasmuch as we reverse the judgment as to SVM upon a holding that Gamesa was barred from bringing suit by limitations we need not address its contention that it was entitled to a larger recovery against SVM.

Gamesa did not pursue an independent appeal as to Guerrero and Guerrero did not elect to complain about the judgment rendered against him. Guerrero is, therefore, neither an appellant nor an appellee in the proceeding before us.

Furthermore, Guerrero’s liability is severable from that of SVM’s.

It has often been said that where an appeal is taken from a judgment of a trial court, all parties whose interest in the subject matter of the proceeding could be adversely affected by a reversal or modification of the judgment are necessary parties to the appeal. Texas Employment Commission v. Gant, Inc., 604 S.W.2d 211 (Tex.Civ.App.—San Antonio 1980, no writ).

It is further recognized that an ap-pellee may also wish to complain of some ruling or other action of the trial court during the course of an appeal which has been perfected by the opposite party. In most cases, it is not necessary for the appellee to perfect an independent appeal. TEX.R.CIV.P. 420 prescribes the procedure to be adhered to when such a situation arises.

However, where a judgment is sev-erable and the appellant has limited the scope of his appeal to a severable portion of such judgment the appellee must perfect his own appeal before he will be heard to complain about another part of the judgment. Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427 (1945); Scull v. Davis, 434 S.W.2d 391 (Tex.Civ.App.—El Paso 1968, writ ref’d n.r.e.).

Since Gamesa has not appealed from the portion of the judgment against Guerrero now alleged to be adverse to it as asserted by cross point, this court is without jurisdiction to consider the cross point. Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960 (1937); Cline v. Cline, 323 S.W.2d 276 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.).

Gamesa’s cross points are overruled.

We reverse the part of the judgment appealed from entered against SVM and in favor of Gamesa for joint and several liability predicated upon a violation of the Bulk Transfers Act and render judgment that Gamesa have and recover nothing from SVM.

      . TEX.BUS. & COM.CODE ANN. §§ 6.101-.111.

      . Contra Aerolineas Argentinas v. Hansen & Yorke Co., Inc., 12 U.C.C.Rep.Serv. (Callaghan) 329 (N.Y.Civ.Ct.1973) (dictum).


author: SHANNON, Chief Justice.

text:
    Nicholas Joseph BELLEGIE, M.D., et al., Appellants, v. TEXAS BOARD OF NURSE EXAMINERS, Appellee.
    No. 13916.
    Court of Appeals of Texas, Austin.
    Jan. 30, 1985.
    Rehearing Denied Feb. 27, 1985.
    Ace Pickens, Michael G. Mullen, Brown, Maroney, Rose, Baker & Barber, C. Dean Davis, Sharon Warner, Davis & Davis, Austin, for appellants.
    Jim Mattox, Atty. Gen., Walter Davis, Asst. Atty. Gen., Austin, for appellee.
    Before SHANNON, C.J., and SMITH and CEAMMAGE, JJ.
   SHANNON, Chief Justice.

Appellants filed a declaratory judgment suit in the district court of Travis County pursuant to the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat. Ann. art. 6252-13a § 12 (Supp.1984). The objective of that suit was to obtain a declaration from the court as to the validity of certain rules promulgated by appellee Texas Board of Nurse Examiners. Appellants filed motions for summary judgment, as did appellee. The district court granted appellee’s amended motion for summary judgment and denied those of appellants. Because the judgment rendered by the district court failed to declare the rights of the parties, this Court will set aside the judgment of the district court, abate the appeal, and order the district court to render judgment declaring the rights of the parties.

The judgment of the district court simply orders that appellee’s motion for summary judgment be granted and that appellants’ motions for summary judgment be denied. The judgment, however, does recite that appellee is entitled to judgment as a matter of law on all issues set out in appellee’s amended motion for summary judgment and recites further that appellants “could not succeed on any of the issues, theories, or causes of action pled [sic] by [them].”

The administrative rule at issue is appel-lee’s rule 388.06.00, which concerns “Advanced Nurse Practitioners.” Rule 388.06.-00 is set out in the margin.

In their trial petition, appellants sought a declaration from the district court that:

(1) there is no authority, express or implied, under the statutes relating to the practice of professional nursing for the appellee Board to create or regulate specialty practice such as advanced nurse practitioners and, accordingly, the Board was without authority to promulgate rule 388.06.00;
(2) rule 388.06.00 is not reasonably related to or necessarily referable to any specific statutory provision relating to the practice of professional nursing;
(3) the Board does not have statutory authority to enlarge the scope of practice of professional nursing beyond Tex.Rev. Civ.Stat. art. 4518;
(4) rule 388.06.00 attempts to place restraints and proscriptions upon professional nurses and provide for disciplinary action for violation of such rules;
(5) rule 388.06.00 is vague and indefinite and fails to give fair notice as to what nursing conduct is permitted and what is proscribed, thereby violating appellants’ due process rights. Specifically in this context, the appellants requested a declaration by the court of the rights, duties, and responsibilities of advanced nurse practitioners and other duly licensed nurses and physicians with respect to:
(a) rule 388.06.006(d)(3).
(b) rule 388.06.006(d)(10).
(c) rule 388.06.006(a).
(d) rule 388.06.006(r)(i).
(e) rule 388.06.004(d).

The judgment of the district court did not declare any rights of the parties with respect to rule 388.06.00. Instead, the judgment simply granted appellee’s motion for summary judgment and denied that of appellants. The judgment did recite that appellee Board was entitled to judgment upon the grounds enumerated in its amended motion for summary judgment. Examination of such amended motion shows that appellee Board claimed:

II.
As a matter of law, the Texas Board of Nurse Examiners does have the statutory authority to make and issue the rules made the subject of this suit. The Nurse Practice Act establishes that it is the intent of the Texas Legislature that the Defendant should have the authority to make the rules that the Plaintiffs seek to challenge. The rules are reasonably related to and referable to the provisions of the Nurse Practice Act.
III.
The Defendant has not enlarged the scope of the practice of professional nursing beyond that set forth in TEX. REV.CIV.STAT.ANN. art. 4518. The rules made the subject of this suit only authorize acts that come within the definition of professional nursing. Also, the rules reflect the clear legislative intent to distinguish between nurses on the basis of nursing education.
IV.
If any restrictions, burdens or conditions have been placed upon the Plaintiffs, such restraints have been within the statutory authority of the Defendant and have not exceeded the intent of the Texas Legislature and are not inconsistent with statutory provisions.
V.
The rules made the subject of this suit do not violate the due process rights of the Plaintiffs. These rules do not violate the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the Texas Constitution. The Defendant’s rules are not unconstitutionally vague or indefinite.
VI.
The rules made the subject of this suit are not contrary to nor do they violate TEX.REV.CIV.STAT.ANN. art. 4518, sec. 5 and 6 and the sections of the Medical Practice Act of Texas a set forth in art. 4518, section 6.

Appellants point out in their briefs that these grounds were not sufficiently specific to provide them with adequate information for opposing the motion and to define the issues for the parties. Should this Court assume that the grounds asserted in the amended motion for summary judgment suffice, then the district court’s espousal of these genera] assertions fall short of meeting the declaratory relief requested in appellants’ petition.

The rule of law pursuant to the Declaratory Judgment Act, Tex.Rev.Civ. Stat.Ann. art. 2524-1 (1965), is that if a declaratory judgment will terminate the uncertainty or controversy giving rise to the law suit, the trial court is duty-bound to declare the rights of the parties as to those matters upon which the parties join issue. Calvert v. Employees Retirement System of Texas, 648 S.W.2d 418 (Tex.App.1983, writ ref’d n.r.e.); Calvert, Declaratory Judgments in Texas, 14 St. Mary’s L.J. 1 (1982). This Court perceives no reason why the same rule should not obtain in a declaratory judgment suit filed pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252-13a § 12 (Supp.1984).

It is the duty of the trial courts to make the Declaratory Judgment Act and § 12 of the Administrative Procedure and Texas Register Act useful tools in the solution of legal problems and controversies. Neither the Declaratory Judgment Act nor § 12 was conceived as a device for use solely by the advocate to obtain a favorable declaration; rather, it was intended for use by the courts to make a correct declaration of the matters at issue, once jurisdiction has attached, whether the particular declaration given by the court is sought by one or several or none of the parties to the litigation. Calvert, Declaratory Judgments in Texas, supra; see Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955).

In Robert T. Foley Co. v. Washington Suburban Sanitary Commission, 283 Md. 140, 389 A.2d 350 (1978), the plaintiffs sought a declaratory judgment that certain sewage charges were unconstitutional and also sought a declaration that the resolutions imposing the charges were invalid as violating contractual rights. On appeal, the plaintiffs complained of the trial court’s failure to declare their rights with respect to the latter question. In responding to that complaint, the court of appeals wrote that “the circuit court did not deal with this question,” and added that the circuit court’s. decree recited “only that the defendant’s motion for summary judgment was granted and the plaintiff’s motion was denied.” The court then quoted from a prior opinion as follows:

While a declaratory decree need not be in any particular form, it must pass upon and adjudicate the issues raised in the proceeding, to the end that the rights of the parties are clearly delineated and the controversy terminated ...” In the instant case, it is clear' that the circuit court erred by failing to set forth in its judgment a declaration of the party’s rights with regard to the issues raised.

Having so held, the appellate court vacated the circuit court’s judgment and remanded the cause for entry of a new judgment which would “include a declaration of the rights of the parties.”

The district court’s judgment in this appeal scarcely informed appellants of the matters resolved so that they could intelligibly prepare and present the issues on appeal. In the absence of a judgment declaring anything, the appellants were compelled to advance their entire argument to this Court just as they had done in district court.

Appellants were entitled to a judgment from the district court declaring the law with respect to the contentions asserted in their trial petition. The district court was not obligated to make a declaration favorable to appellants or appellee, but it was duty-bound to make declarations resolving the matters placed at issue by the declaratory judgment petition. The district court’s failure to do so was error.

Appellants pray that the judgment be reversed and “the cause remanded to the trial court.” This Court concludes that the proper disposition under this general prayer for relief is to set aside the judgment, abate the appeal, and order the district court to render judgment declaring the rights of the parties as to those matters upon which the parties joined issue.

The judgment shall then be filed with this Court by way of supplemental transcript, on or before April 3, 1985. The appellants will be allowed thirty days after the date the supplemental transcript is filed to file a brief and the appellee will be allowed twenty-five days after appellants’ brief is filed to file a reply brief. Additional oral argument will not be permitted.

      . Appellants are Nicholas Joseph Bellegie, M.D.; Ona D. Northcutt Newby, R.N.; the Texas Academy of Family Physicians; the Texas Association of Obstetricians and Gynecologists, the Texas Society of Anesthesiologists; the Texas Medical Association; Jane Ralston, R.N.; San Jacin-to Methodist Hospital; Texas Hospital Association; and the THA Health Services Corp.

      . State Board of Nurse Examiners
      Advanced Nurse Practitioners 388.06.00 A hearing was held on March 12, 1980, by the State Board of Nurse Examiners to receive testimony on the proposed adoption of Rules 388.-06.00.001-.007. The majority of the testimony, both oral and written, was in support of the rules with minor revisions.
      Under the authority of Article 4514 and Article 4518, Texas Revised Civil Statutes, the Board of Nurse Examiners has adopted Rules .001-.007 with minor changes in the proposed text.
      .001. Definitions.
      (a) “Advanced nurse practitioner” is a registered professional nurse currently licensed in Texas, who is prepared for advanced nursing practice by virtue of knowledge and skills obtained through a post-basic or advanced educational program of study acceptable to the board. The advanced nurse practitioner is prepared to practice in an expanded role to provide health care to individuals, families, and/or groups in a variety of settings including but not limited to homes, hospitals, institutions, offices, industry, schools, community agencies, public and private clinics, and private practice. The advanced nurse practitioner functions in a collegial relationship with physicians and other health professionals making independent decisions about nursing needs, interdependent decisions with physicians regarding health regimens, and assumes dependent responsibilities in carrying out delegated medical acts.
      (b) "Board" refers to the Board of Nurse Examiners for the State of Texas.
      (c) "Should” indicates a recommendation.
      (d) "Shall” and “must" indicate mandatory requirements.
      (e) "Post-basic course of study” refers to an accredited advanced nurse practitioner pro-
      .002. Education.
      (a) The registered professional nurse practicing as an advanced nurse practitioner shall have completed a post-basic program of study appropriate to the area of practice which meets the following criteria.
      (1) The program of study shall meet the requirements for advanced nurse practitioner programs according to Rules 388.05.00.001-.014.
      (2) Programs of study in the State of Texas should be accredited by the board.
      (3) Programs of study in states other than Texas must meet the requirements of Rules 388.05.00.001-.014 and should be approved by the appropriate licensing body in that state or be accredited by a national accrediting body approved by the board.
      (b) In lieu of the aforementioned educational requirements, certification of the advanced nurse practitioner in the appropriate area of practice by a national or state organization. whose certification examination has been approved by the board, will be acceptable.
      .003. Categories. Registered professional nurses holding themselves out to be advanced nurse practitioners may include but not be limited to the following:
      (1) nurse anesthetist,
      (2) nurse midwife,
      (3) nurse practitioner,
      (4) clinical nurse specialist,
      (5) other titles as approved by the' board. .004. Credentialing.
      (a) The registered nurse who practices as an advanced nurse practitioner shall submit to the board such evidence as is necessary to insure compliance with Rules .002 and .004.
      (b) Evidence to be submitted to the board may include but is not limited to the following:
      (1) current registration as a registered nurse in the State of Texas;
      (2) transcript from post-basic program of study;
      (3) evidence of certification in the area of practice by a national or state organization approved by the board;
      (4) name and address of consulting physician(s), if applicable.
      (c) After review by the board, notification of acceptability of credentials shall be sent to the advanced nurse practitioner.
      (d) Only those registered professional nurses whose credentials have been approved by the board may hold themselves out to be advanced nurse practitioners and/or use titles to imply that they are advanced nurse practitioners.
      .005. Identification. The advanced nurse practitioner should wear a name tag which identifies her or him as a registered nurse and the appropriate area of practice (i.e., family nurse practitioner, nurse midwife, pediatric nurse clinician, etc.).
      .006. Functions.
      (a) Each advanced nurse practitioner shall practice in an area appropriate to her or his post-basic educational preparation.
      (b) The advanced nurse practitioner may act independently or in collaboration with the health team in the maintenance of mental and physical health; in the prevention of illness; in management, observation, and counsel of the ill and injured; or in supervision and teaching of nursing.
      (c) Functions of the advanced nurse practitioner shall be clearly delineated by a written statement of policies which include standard and emergency procedures.
      (1) Advanced nurse practitioners who manage the medical aspects of care must have written policies jointly developed by the nurse practitioner and consulting physician(s) and signed by both the nurse and the physician(s). These policies shall be reviewed at least annually.

        (2)The scope and detail of said policies may vary in relation to the complexity of the situations covered and the area of practice and educational preparation of the individual advanced nurse practitioner.
      (d) Within the limitations of her or his educational preparation and within written statements of policy, an advanced nurse practitioner may:
      (1) assess the physical and/or mental health status of individuals through:
      (A) eliciting and recording complete health and social histories and recording the results thereof,
      (B) performing physical examinations, and
      (C) performing simply laboratory tests necessary to ascertain health status;
      (2) interpret information collected in a health assessment;
      (3) formulate and initiate a health care plan;
      (4) recommend nonprescriptive measures for relief of symptoms;
      (5) refer deviations from normal to the appropriate health care professional;
      (6) provide health education;
      (7) initiate and maintain health records;
      (8) evaluate health care provided and modify as needed;
      (9) work collegially with other health care professionals and agencies to provide and, where appropriate, coordinate services to individuals, families, and groups; and
      (10) perform medical functions delegated by and done under the control and supervision of a physician licensed by the Texas State Board of Medical Examiners.
      (e) Functions of the advanced nurse practitioner must be within the scope of the Texas Nurse Practice Act and shall not be in violation of the Medical Practice Act of Texas, the Texas pharmacy law, or any Texas drug laws.
      .007. Enforcement. Any nurse who violates these rules shall be subject to disciplinary action by the board under Article 4525, Texas Revised Civil Statutes.


author: BASS, Justice. LEVY, Justice,

text:
    Albert Level HALL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-320-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 31, 1985.

      Larry D. Dowell, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., James C. Brough, Clay Rawlings, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before JACK SMITH, LEVY and BASS, JJ.
   OPINION

BASS, Justice.

The appellant, Albert Level Hall, was found guilty of aggravated robbery and sentenced to 25 years confinement in the Department of Corrections.

We affirm.

On October 23,1983, at two o’clock in the morning, Ulysses Young, manager of a Pizza Hut, left the restaurant to make a night deposit. As he was driving down Homestead Road, he was bumped from the rear by another vehicle. After he was bumped a second time, Young stopped and got out of his car. He was approached by two men who both pulled pistols and robbed him of the night deposits, his wallet, and brief case. He was then told to start walking down the road, and the robbers then drove away. Immediately after the robbers left, Young noticed a Harris County Deputy Sheriff driving a patrol car. He flagged the officer down and reported that he had just been robbed by some people in a brown Pontiac. The deputy had seen the brown Pontiac speed away, and he gave chase. The chase was soon joined by a patrol car from the Houston Police Department. After the appellant’s vehicle blew a tire, the two men were apprehended with two pistols, the night deposits, and the Pizza Hut’s bank deposit slip. Appellant and his co-defendant were taken into custody and later indicted for aggravated robbery.

We first consider the state’s contention that we lack jurisdiction to hear the appeal.

The appellant was convicted and sentenced on May 16, 1984, and on that same day his attorney of record gave notice of appeal and filed a pauper’s oath requesting appointment of counsel, as well as a request for a free statement of facts. After the trial court appointed the trial counsel for appellant’s appeal, the appellant, without notice to his counsel, executed a pro se motion in arrest of judgment. The motion was not acted upon, and was therefore overruled by operation of law on July 30, 1984. Tex.Code Crim.P.Ann. art. 41.02 (Vernon Supp.1985). There is no notice of appeal filed after July 30, 1984.

The state contends that this court lacks jurisdiction to hear the appeal because appellant’s only notice of appeal was premature. However, we hold that the pro se motion was not duly and properly presented for the trial court’s action, because it was filed by the appellant while he was being represented by appointed counsel. An appellant is not entitled to hybrid representation in a criminal cause of action. See Landers v. State, 550 S.W.2d 272 (Tex.Crim.App.1977); Sanders v. State, 657 S.W.2d 817 (Tex.App.—Houston [1st Dist.] 1983, no pet.). We hold, therefore, that the motion was not properly before the court, and that we have jurisdiction to hear the appeal.

In appellant’s first ground of error, he complains that the trial court erred in failing to charge the jury on the lesser included offense of robbery. In determining whether a charge on a lesser included offense is required, a two-step analysis is used: first, the lesser included offense must be included within the offense charged; second, there must be some evidence in the record that, if the defendant is guilty, he is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981) (op. on reh’g). Moreover, an instruction on a lesser included offense is proper only where the greater offense requires the jury to find a disputed factual element that is not required in the lesser offense. McKinney v. State, 615 S.W.2d 223, 224 (Tex.Crim.App.1981). In determining whether evidence has been presented which raises the issue of a lesser included offense, this court must consider all the evidence presented at trial. Lugo v. State, 667 S.W.2d 144 (Tex.Crim.App.1984).

Hall contends that his testimony necessitated a charge on robbery. However, in reviewing the appellant’s testimony, we find that he does not admit to robbery, but claims that he was selling marihuana to Young, and that the money the police found on him was the proceeds from that sale. He further stated that the first time he had knowledge of the pistol found in the rear of his car or the one by his right rear tire was when the arresting officer showed them to him. It is this testimony that appellant claims negated the use or exhibition of a deadly weapon and required that a charge of robbery be submitted to the jury. This testimony does not raise a disputed factual element that would entitle Hall to a charge on the lesser included offense of robbery. Hall was not contending that he and his co-defendant robbed Young without using a gun, but that he was involved in a drug transaction. Hall’s testimony does not show that he was guilty of only robbery. Appellant’s first ground of error is overruled.

In his second, third, and fourth grounds of error, appellant contends that the trial court erred in failing to grant his motion for mistrial when the prosecutor asked him an improper question. The appellant, on direct examination by the defense counsel, had testified only concerning his selling of marihuana. Upon cross-examination, the prosecutor asked the appellant several questions.

[Second Ground]
Q. Are you and Mr. Russell in the business of dealing and selling marijuana? A. Yes, sir.
Q. That was kind of a business partnership between the two of you?
A. Yes, sir.
Q. Do you know where Mr. Russell is right now?
A. He is at TDC.
Q. Do you understand what he is convicted of.
A. Yes.
Q. What is he convicted of?
[Defense Counsel]: I object, Your Hon- or. It’s hearsay and irrelevant.
THE COURT: Sustained.
[Defense Counsel]: I move that the jury be instructed to disregard it.
THE COURT: Don’t consider that last question for any purpose.
[Defense Counsel]: I move for a mistrial.
THE COURT: Overruled.
[Third Ground]
Q. Do you understand that Randy never said anything about a sale of marijuana going on in this transaction?
[Defense Counsel]: Your Honor, I object to this last statement, the Prosecutor is testifying to facts outside the record.
[Prosecutor]: Your Honor, I am asking him if he knows.
THE COURT: That will be overruled.
THE WITNESS: I don’t know.
[Fourth Ground]
Q. Were you in court the day that Mr. Russell testified as to what happened out there?
A. No sir.
Q. Would it surprise you if he said that you were the one that pulled the gun?
[Defense Counsel]: I object again, Your Honor.
THE COURT: Sustained.
[Defense Counsel]: I ask that the jury be instructed to disregard the last statement.
THE COURT: Don’t consider for any purpose.
[Defense Counsel]: It is outside the record and it is hearsay and the Prosecutor’s testifying and we move a mistrial.
THE COURT: It’s overruled.

We disagree with appellant’s contention that the above line of questioning was improper and prejudicial and that it effectively denied him a fair trial. The prosecutor’s questions were an attempt to impeach the appellant’s testimony. The appellant had testified that a drug transaction had occurred, and that, until the police had showed him the two guns, he had no knowledge of them. Young, however, testified that he saw a gun in the hands of Hall. It was on that line of testimony that the prosecutor cross-examined.

Moreover, except in extreme cases, an instruction to disregard will generally cure error. Seaton v. State, 564 S.W.2d 721, 725 (Tex.Crim.App.1978). This is not an extreme case. The record shows that the police never lost sight of the appellant and his co-defendant and that they were apprehended after a high speed chase. The police found a Pizza Hut bank deposit slip on the floor of appellant’s car. They also found the $1,100 that Young was depositing for the restaurant. Moreover, two guns were found at the scene. From reviewing the entire record before us, we conclude that any harmful effect of the prosecutor’s statement was cured by the trial court’s instruction to the jury to disregard. See Davis v. State, 645 S.W.2d 817 (Tex.Crim.App.1983). Appellant’s second, third, and fourth grounds of error are overruled.

In appellant's last argument, he complains the prosecutor’s jury argument was improper, specifically with respect to the following language:

I want you to think about something. Why would Tony Young say anything to that deputy if it didn’t happen that way? Counsel gets up there and says, don’t you know a black man is going to get messed around at 2:30 in the morning. This is 1984. It offends me to hear that racial garbage slung around time and time again.
[Defense Counsel]: Your Honor, I object to the prosecutor striking at the Defendant over the shoulder of the Defense counsel.
[PROSECUTOR]: Your Honor, it’s final argument.
[DEFENSE COUNSEL]: I ask the jury be instructed to disregard.
THE COURT: Overruled. You won’t consider it for any purpose.
[DEFENSE COUNSEL]: Move for a mistrial, Your Honor.
THE COURT: Overruled.

In order to constitute reversible error, a jury argument must be extreme, manifestly improper, or inject new and harmful facts into evidence in light of the record as a whole. Kerns v. State, 550 S.W.2d 91, 96 (Tex.Crim.App.1977). We view the argument as the prosecutor’s attempt to answer opposing counsel’s argument, and although improper, it was not so extreme or manifestly improper as to require reversal. Appellant’s fifth ground of error is overruled.

The judgment is affirmed.

LEVY, Justice,

dissenting.

I respectfully dissent.

Where a prosecutor deliberately pollutes the factfinding process by questions which he knows are improper, seeking to elicit evidence that he knows is inadmissible, an appellate court should carefully, if not meticulously, scrutinize the record to see that the harm thereby inflicted on the accused is not of reversible dimensions.

Specific objections were timely made by defense counsel in the case at bar, and the issue of prosecutorial misconduct is squarely before this court, as disclosed by the quotations from the trial in the majority opinion. Two instances that are especially grievous — but not exclusive — are as follows:

(1) Q: Were you in court the day that Mr. Russell testified as to what happened out there?
A: No, sir.
Q: Would it surprise you if he said that you were the one that pulled the gun?
MR. DOWELL: I object again, Your Honor.
THE COURT: Sustained.
MR. DOWELL: I ask that the jury be instructed to disregard the last statement.
THE COURT: Don’t consider it for any purpose.
MR. DOWELL: It is outside the record and it is hearsay and the prosecutor is testifying and we move for a mistrial.
THE COURT: It’s overruled.
(2) Q: Do you understand that Randy never said anything about a sale of marijuana going on in this transaction?
MR. DOWELL: Your Honor, I object to this last statement. The prosecutor is testifying to facts outside the record.
MR. RAWLINGS: Your Honor, I am asking him if he knows.
THE COURT: That will be overruled.
THE WITNESS: I don’t know.

This mode of interrogation, calculated to suggest — impermissibly, if not falsely — to the jury that events about which the prosecutor inquired had actually occurred, to the discredit of the accused, has been thoroughly and consistently condemned by the Court of Criminal Appeals. See Washburn v. State, 299 S.W.2d 706, 708 (Tex.Crim.App.1956), and the cases cited therein.

It is almost a platitude to observe that the primary function of the prosecutor, as an officer of the State, is not to win a case, but to see that justice is done. See Taylor v. State, 653 S.W.2d 295, 302 (Tex.Crim.App.1983); Lackey v. State, 148 Tex.Crim. 623, 624, 190 S.W.2d 364, 365 (1945); Short v. State, 79 Tex.Crim. 426, 187 S.W. 955 (1916). All prosecutors may take comfort in the sure knowledge that the State wins its point, not necessarily when the prosecution triumphs, but when justice is done in the courts. This distinction is sometimes crucial.

I cannot safely say that the cumulative misconduct of the prosecutor was harmless to the appellant or that deterrence of such misconduct will likely result from its passive acceptance by this court.

I would sustain the appellant’s second, third, and fourth grounds of error, reverse the judgment of the trial court, and remand for a new trial.


author: PER CURIAM.

text:
    Ex parte Charles GOOSBY.
    No. 01-84-0707-CR to 01-84-0711-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 31, 1985.

      Steven Rocket Rosen, Houston, for appellant.
    William A. Meitzen, Fort Bend Dist. Atty., John F. Healey, Fort Bend Asst. Dist. Atty., Richmond, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

PER CURIAM.

This is an appeal from an order of the trial court setting bond at $250,000 each for four capital murder indictments and $25,000 for an attempted capital murder indictment for a total amount of $1,025,000 bond. At a bond reduction hearing, the trial court denied a motion for reduction of a bond on all five indictments.

We note that the Constitution and laws of Texas allow bond to be denied in a capital murder case where the State shows at a hearing that the proof is evident that the defendant is guilty and will be sentenced to death. Tex.Const.Art. I, sec. 11. The State did not seek such a hearing, however, and did not request denial of bail, nor has the State directed us to any case upholding bail as high as $250,000 in a capital murder ease.

Appellant contends that the amount of bond set is excessive, that he cannot make bond in that amount, and that bond should have been reduced in each case. Appellant further asserts that even though the death penalty may be assessed, there has been no showing that the possibility of such punishment would compel him to abscond and, therefore, a lower bond would assure his presence at trial.

The right to a reasonable bond is based on the presumption of innocence and is protected by the United States Constitution, the Texas Constitution and Texas statutes. U.S.Const. amend. VIII; Tex.Const. art. I, sec. 11; Tex.Code Crim.P.Ann. art. 1.07 (Vernon 1977). The primary purpose of a bond is to ensure the appearance of the accused at trial. Although bail should not be used as an instrument of oppression, it should be sufficiently high to give reasonable assurance that the accused will appear. Tex.Code Crim.P.Ann. art. 17.15 (Vernon 1977); Ex parte Bufkin, 553 S.W.2d 116 (Tex.Crim.App.1977). Circumstances and factors to be considered in determining the amount of bond include: the petitioner’s work record, family ties, residency, ability to make bond, prior criminal record, conformity with previous bond conditions, any outstanding bonds, and aggravating circumstances involved in the offense. Ex parte Rubac, 611 S.W.2d 848 (Tex.Crim.App.1981). The court is also allowed to consider the nature and circumstances of the offense committed. Art. 17.15.

Appellant argues that his community ties are sufficient to warrant a reduction in bond, in that he has lived in the Houston area since September 18, 1978, has been 'employed over the past six years as a maintenance man, and was employed at the time of his arrest.

It is also appellant’s contention that his lack of a prior criminal record should be considered a factor in reducing the bond. The record does not indicate that appellant has previously been convicted of a felony, but does indicate that appellant has had bond set in other states. However, there is no testimony concerning his compliance with those prior bonds.

There has been no showing that either appellant or his wife own property in Texas or have many family relations living in the state. The record reflects that appellant’s employment history consists of doing odd jobs and that he was discharged from military service for failure to adapt. Since arriving in Houston in 1978, he has lived in four different apartment complexes. Prior to moving to Texas in 1978, he resided in California, Alabama, and Mississippi over a nine-year period.

Appellant has been indicted in four counts of capital murder with each having the possibility of punishment being assessed at death or confinement in the Texas Department of Corrections for life. Tex.Code Crim.P.Ann. art. 37.071 (Vernon 1977). Appellant was also indicted for the offense of attempted capital murder for which he could be sentenced up to 99 years confinement. The length of the sentence and the nature of the offense are significant factors in determining what constitutes reasonable bond. Rubac, 611 S.W.2d 848.

The setting of bail is within the discretion of the trial court, and it is appellant’s burden to show that the bail is excessive. Art. 17.15. Eleven years ago, in Ex parte Sierra, 514 S.W.2d 760 (Tex.Crim.App.1974) bail was set at $50,000 each in two prosecutions for capital murder. Fourteen years ago, bail of $75,000 for the then capital offense of robbery by firearms was approved in Ex parte Roberts, 468 S.W.2d 410 (Tex.Crim.App.1971).

There has been a substantial decrease in the value of the dollar over these periods of time. However, we conclude that the bail in each of the four capital murder indictments ($250,000) is excessive and we reduce the amount of bail in each case to the sum of $100,000.

We find that bail of $25,000 for attempted capital murder is reasonable. Ex parte Simon, 469 S.W.2d 804 (Tex.Crim.App.1971). Therefore, the judgment of the trial court setting bail at $25,000 for the attempted capital murder indictment is affirmed.


author: DICKENSON, Justice.

text:
    Albert Wayne WARE, Appellant, v. STATE of Texas, Appellee.
    No. 11-84-029-CR.
    Court of Appeals of Texas, Eastland.
    Jan. 31, 1985.
    Rehearing Denied Feb. 21, 1985.

      Prank W. Conard II, Sweetwater, for appellant.
    Frank Ginzel, Sp. Pros. Atty., Andrew Ottaway, Colorado City, for appellee.
   DICKENSON, Justice.

The jury convicted Albert Wayne Ware for the offense of “Unlawful Possession of Firearm by Felon” and assessed his punishment at confinement for 20 years and a $10,000 fine. The district judge cumulat-ed this sentence with an earlier conviction for the same offense. We affirm this conviction.

Appellant’s court-appointed lawyer filed a brief which contains two grounds of error. There is no challenge to the sufficiency of the evidence. First, he argues that the trial court erred in admitting the handgun into evidence. This ground is overruled because the search of appellant’s car was incidental to appellant’s arrest. The United States Supreme Court, in New York v. Belton, 453 U.S. 454 at 460, 101 S.Ct. 2860 at 2864, 69 L.Ed.2d 768 at 775 (1981), held that:

(W)hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment.... Such a container may, of course, be searched whether it is open or closed.

We agree with the holding in Russell v. State, 644 S.W.2d 554 at 556 (Tex.App.—Dallas 1982, pet’n ref’d):

(W)e perceive no need for one rule under the Constitution of the United States and another under the Constitution of Texas. Accordingly, we conclude that under Article I, section 9 of the Constitution of Texas, the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants is as defined by the Supreme Court in Bel-ton.

See also Beasley v. State, 683 S.W.2d 132 (Tex.App.—Eastland 1985, pet’n pending).

The facts under review show that appellant made threats against the district judge, the district attorney, his appointed defense counsel and others in connection with his perception that he had been treated unfairly in his earlier conviction in Nolan County for unlawful possession of a handgun. Appellant had been released on bond while the petition for review was under consideration. On Thanksgiving Day, November 24, 1983, appellant began drinking, and he made numerous threats in the presence of his mother, his sister and his brother-in-law. Appellant said that he was going to cut off the district attorney’s male private parts and that he was going to torture the district attorney’s investigator. Appellant’s brother-in-law and sister also testified that appellant told them that: “He said he thought it was about time he got his .44 and come to Sweetwater and took out some people.” On the afternoon of November 25, appellant appeared at the home of one of his Sweetwater friends. He was still drinking and making threats against the people that he felt had mistreated him on the earlier trial (which resulted in a 13-year prison sentence and a $2500 fine) for having a firearm with him at the scene of an automobile accident. His friends testified that he was threatening to inflict humiliation on the district judge and the district attorney. Appellant was asking for his friends’ help in finding out where those officials lived. They declined to become involved. Two of them saw the gun which was stuck under his belt and concealed by the coat which he was wearing. The wife of one of appellant’s friends called appellant’s ex-girlfriend to warn her that appellant was in town and that he was drinking and making threats. The ex-girlfriend notified the district attorney, and he helped her prepare a complaint. The district attorney then presented the sworn complaint to the Judge of the County Court at Law who, acting as a magistrate, issued an arrest warrant. In the meantime, the ex-girlfriend called appellant on the telephone to set up a meeting. The district attorney notified the police that an arrest warrant had been issued and that in order to avoid the risk of injury to the appellant’s friends and their two children, the police should wait to arrest appellant until he left the house to go to the meeting which had been arranged by the ex-girlfriend. As appellant drove away from his friends’ house, the police arrested him. When appellant was searched by the police, they found fifty-four .44 magnum bullets in the pockets of his coat. The gun was in the car, in the console beside the driver’s seat. The .44 magnum gun was loaded with six live rounds of ammunition.

We hold that the trial court did not err in admitting the gun into evidence. It was lawfully found and seized as an incident to appellant’s arrest on a felony arrest warrant. New York v. Belton, supra.

The other ground of error urged by appellant’s lawyer concerns appellant’s complaint that the trial court overruled his motion for mistrial during the special prosecutor’s opening jury argument on the issue of guilt. The record shows the following:

SPECIAL PROSECUTOR: ... We have shown to you, through this Exhibit Number One here (the gun), which I am going to discuss in a few minutes — we have shown to you that that defendant picked a gun—
DEFENSE COUNSEL: I object to the pointing of a gun in the defendant’s face. That is done for nothing but prejudice. We object to that strenuously, and ask the prosecutor not to do that anymore.
THE COURT: All right. You will not point a gun at anybody in the courtroom, Mr. Strother.
DEFENSE COUNSEL: Your Honor, we move for a mistrial at this time.
THE COURT: Overruled.

We hold that the trial court did not err in overruling the motion for mistrial. The maximum sentence assessed by the jury in * this case was not at all likely to have been caused by the pointing of the gun, but beyond any reasonable doubt resulted from proof during the guilt stage of trial of the terrible threats which appellant had made against the district judge, the district attorney, the district attorney’s investigator and others and the proof that appellant had secured a .44 magnum pistol and 60 rounds of ammunition before coming to Sweetwa-ter to “take out some people.” Bad as those facts were, appellant’s hopes for leniency proved even more futile when the jury learned during the punishment phase of his prior conviction for armed robbery. The jury already knew that he had shot his father-in-law in the face (pleading guilty to the lesser included offense of involuntary manslaughter) and that he was out of confinement on bond while a prior felony conviction was pending review by the Court of Criminal Appeals. The second ground of error is overruled.

There is a pro se brief which contains one additional ground of error. Normally, this Court does not discuss the contentions made in pro se briefs because the law is clear that an appellant is not entitled to hybrid representation, partly pro se and partly by attorney of record. See Rudd v. State, 616 S.W.2d 623 at 625 (Tex.Cr.App.1981). However, in view of appointed counsel’s plea that we consider the matter “in the interest of justice,” it will be discussed. The pro se ground of error argues:

The trial court erred in failing to grant appellant’s motion to suppress evidence as to the State’s exhibit 2, a handgun, and in admitting same into evidence over the objection of appellant, because of an affidavit based on conclusions only, making the arrest warrant invalid.

.The arrest warrant was based upon the sworn complaint by appellant’s ex-girlfriend which, omitting the formal parts, reads in full as follows:

I, Bonnie Colleen Reisinger, being duly sworn, do state upon my oath that I have personal knowledge, and I charge that heretofore, and before the making and filing of this complaint, on or about the 25th day of November, 1983, in the County of Nolan and State of Texas, Albert Wayne Ware, Defendant did then and there knowingly and intentionally threaten to harm H.T. Fillingim, a witness, by an unlawful act, namely: causing the death of the said H.T. Fillingim in retaliation for and on account of the service of H.T. Fillingim, a witness in a criminal trial, to-wit: Cause number 5471-A in the 32nd District Court of Nolan County, Texas styled the State of Texas versus Albert Wayne Ware.

We hold that this sworn complaint is not based on “conclusions only.” It specifies the nature of the threat, “causing the death” of one of the witnesses who testified against appellant. Moreover, even if the complaint had been insufficient, the officers would have been justified in executing the arrest warrant which was issued by the magistrate. See United States v. Leon, 468 U.S.-at-, 104 S.Ct. 3405 at 3423, 82 L.Ed.2d 677 at 700 (1984), where the majority opinion states:

In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.

We hold that the trial court did not err in permitting the jury to see the gun. There was a valid arrest under Leon, and Belton authorizes a contemporaneous search of the vehicle. The pro se ground of error is overruled.

The judgment of the trial court is affirmed.

      . TEX.PENAL CODE ANN. sec. 46.05 (Vernon 1974) defines this offense and contains the following language:
      (a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.
      (b) An offense under this section is a felony of the third degree.
      The indictment in this case charged that on November 25, 1983, appellant possessed a handgun away from the premises where he lived and that prior to that time he had been finally convicted of the felony offense of involuntary manslaughter on October 31, 1980. The proof shows that the prior felony involved an act of violence to a person. Appellant had shot his stepfather two times, and after being indicted for murder, pled guilty to the lesser included offense of involuntary manslaughter.

      . The punishment was enhanced under TEX.PENAL CODE ANN. sec. 12.42(a) (Vernon 1974) by proof that appellant had been convicted on September 25, 1980, for the felony offense of aggravated robbery.

      . Pursuant to TEX.CODE CRIM.PRO.ANN. art. 42.08 (Vernon 1979) the judgment in this case provides that the punishment shall begin when the judgment and sentence in Cause No. 5471-A (our No. 11-82-281-CR) have ceased to operate.

      . See Ware v. State, 677 S.W.2d 546 (Tex.App.—Eastland 1983, pet’n granted), where this Court reversed the prior conviction because there was no evidence as to the underlying facts on appellant’s conviction for involuntary manslaughter. This Court was unable to hold that all forms of involuntary manslaughter involve violence or threats of violence “as a matter of law" when the penal code provides that the offense can be committed by reckless acts or omissions. The Court of Criminal Appeals granted discretionary review on September 28, 1983. That case was submitted on oral arguments on January 4, 1984, and is still pending decision at this time.