author: DUNCAN, Judge.

text:
    STATE of Tennessee, Appellee, v. Larry Mason LEACH, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Nov. 7, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 28, 1985.

      W. Mark Ward, Memphis, for appellant.
    W.J. Michael Cody, Atty. Gen., Raymond S. Leathers, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Phillip G. Harris, John W. Overton, Asst. Dist. Attys. Gen., Memphis, for appellee.
   OPINION

DUNCAN, Judge.

The defendant, Larry Mason Leach, was convicted of aggravated rape, aggravated kidnapping, and of a felony-firearms violation. His punishment was fixed at forty (40) years for each of the first two (2) offenses, and to three (3) years for the third offense. The trial court ordered the sentences to be served consecutively to each other.

In this appeal, the defendant contests the sufficiency of the evidence, argues that the trial court erred by refusing a motion in limine regarding his prior record, says the trial court improperly refused reference to the prosecution of the defendant in Tipton County, urges that the trial court erred in overruling the defendant’s objections to certain statements made by State’s counsel during the State’s closing argument, and says that the trial court erred in imposing excessive and consecutive sentences. We find no merit to any of these complaints; however, as we will explain later in this opinion, the defendant’s felony-firearms conviction must be reversed.

The evidence that was presented to the jury in this case showed that the sixteen (16) year old victim was driven by the defendant to four (4) different secluded locations and was repeatedly raped over a period of approximately five (5) hours. This episode began in Shelby County and ended in nearby Tipton County where the victim escaped from the defendant’s truck after shooting him with his .45 automatic after he dozed off to sleep. The defendant is paralyzed as a result.

The victim testified that at about 4:20 p.m. on October 20, 1982, she was eating her dinner behind her father’s store. The defendant drove up and forced her at gunpoint to enter his truck. He continued to hold one of his two guns on her, forced her to undress, and took her to several secluded fields in Shelby County. During the five (5) hour period, the defendant forced the victim to submit to various sexual acts. He tied her to trees, forced her to participate in oral sex, placed his fingers and penis in her vagina, attempted to place his penis in her rectum, and forced her to masturbate. At one point, in an effort to “bring some sense to him,” the victim told the defendant that God loved him, but he threatened to blow her head off if he heard anymore about her God. The final incident occurred at a field in Tipton County where the defendant’s truck got stuck in a rut. The defendant fell asleep after telling the victim that they would have to spend the night there. The victim saw this as her best possible chance to escape. Believing that she would have to disable the defendant, since she had to crawl over him to get out of the truck, she shot him with one of his guns. She saw a light in the distance and ran in that direction, through a field, to get help.

Mrs. Bobbie Fayne testified that at around 9:00 p.m. that night, the victim appeared on her doorstep, frightened, crying, and covered with cockleburs. The victim told Mrs. Fayne and her husband that she had been kidnapped and raped by the defendant, and that she had shot him. Mr. Fayne contacted the victim’s family and a Tipton County constable.

The State’s evidence further established that the victim’s father approached Officer S.E. Watson of the Memphis Police Department at 5:10 p.m. on October 20. Ms. Watson went with the victim’s father to the latter’s store, and observed the victim’s purse and partially eaten dinner where they had been left. Officer J.C. Noe was called later and saw the same items at that location. After receiving the call from Mr. Fayne, Officer Noe went to the Fayne residence and then took the victim to the Rape Crisis Center. After the victim was examined at the Rape Crisis Center, she showed Officers Noe and Anderson the places she had been taken to by the defendant. Two other officers and the victim retraced the route again two days later.

A forensic serologist analyzed the results of the Rape Crisis Center examination. She testified that semenal acid phosphate was found on one of the victim’s vaginal swabs. The witness also discovered acid phosphate and spermatozoa on the defendant’s jeans and handkerchief as well as on the seat of his truck.

We also point out that the defendant was apprehended by the police when they found him in his disabled truck.

The defendant first challenges the sufficiency of the evidence. It is well established in this State that a jury verdict approved by the trial judge accredits the testimony of the State’s witnesses and resolves all conflicts in favor of the State. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978); State v. Townsend, 525 S.W.2d 842 (Tenn.1975). On appeal, the State is entitled to the strongest legitimate view of the evidence, and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 882 (Tenn.1978). A verdict against the defendant removes a presumption of innocence and raises a presumption of guilt upon appeal. State v. Grace, 493 S.W.2d 474 (Tenn.1973). Where the sufficiency of the evidence is challenged, the relevant question for the Appellate Court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. T.R. A.P. 13(e).

Under the facts of this case as we have summarized above, and after a thorough review of the record, it is clear that the evidence is overwhelming to support the jury’s verdict finding the defendant guilty of aggravated rape and aggravated kidnapping beyond a reasonable doubt. T.R.A.P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Next the defendant says that the trial court erred by refusing a motion in limine regarding his prior criminal record. At the beginning of the trial, the defendant requested the trial court to prohibit the State from introducing any evidence regarding the defendant’s past record. The trial judge stated that such matters would be taken up at trial if they arose.

The testimony to which the defendant objected was given after the victim had described what occurred at the first field. After testifying that she was forced at gunpoint to get back into the truck, the State asked her what she did after getting into the truck. She responded, “I sat as close to that door as I could, and I was, you know, asking him, you know, like, why wouldn’t he let me walk back and all, and I had asked him if he had done stuff like that before and he said yes, like there’s nothing to it.” No objection was made to this until after the victim had completed her testimony and after another witness had testified, at which point the defendant moved for and was denied a mistrial. Not only has the defendant waived consideration of the issue by failing to make contemporaneous objection, State v. Sammons, 656 S.W.2d 862, 871 (Tenn.Cr.App.1982), but he also rejected the trial court’s offer of a curative instruction.

Moreover, the defendant’s statement was made during the course of his assaults upon the victim, was inseparably linked to the facts surrounding the incident, went to the question of his intent in the commission of the present crimes, and was expressive of his mental attitude. As such, the statement was admissible as being a part of the res gestae. See Wakefield v. State, 175 Tenn. 111, 132 S.W.2d 217 (1939); Garrison v. State, 163 Tenn. 108, 40 S.W.2d 1009 (1931); see also Shelton v. State, 3 Tenn.Cr.App. 310, 460 S.W.2d 869 (1970).

The defendant next complains that he should have been allowed to introduce proof that he was also being prosecuted in Tipton County. He contends that this evidence was relevant to the issue of venue and relevant to emphasize to the jury that he was not on trial for his actions in Tipton County.

Evidence is relevant if it has any tendency to make the existence of any fact that is of any consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978).

The defendant was on trial in this case for crimes committed in Shelby County. We agree with the State that whether or not the defendant was being prosecuted in Tipton County has nothing to do with proof of venue in the present case. Also, it was readily apparent from the proof that the defendant was on trial for offenses committed in Shelby County and not Tipton County. There is no merit to this complaint.

The defendant’s fourth complaint is that the State’s closing argument was improper and highly prejudicial. While the defendant did not object contemporaneously to every comment that he considers improper, he did object on two occasions to the following remarks made by each of the two prosecuting attorneys:

You know, this offense was caused by that mind, that twisted, deviant mind, that twisted deviant mind that is still intact, completely intact.
Larry Mason Leach put it there and he put it there when he was having sexual intercourse, or his tortured, warped, stupid, ignorant version of it with a 16-year-old child. That’s what she is.

The trial court overruled the defendant’s objections, saying that logical inferences could be drawn by either side from the proof.

Trial judges have wide discretion in controlling the arguments of counsel, and their action will not be reversed absent abuse of that discretion. White v. State, 210 Tenn. 78, 90-91, 356 S.W.2d 411, 417 (1962). When argument is complained of, the general test applied is whether the improper conduct could have affected the verdict to the prejudice of the defendant. Briggs v. State, 463 S.W.2d 161, 164-165 (Tenn.Cr.App.1970). This Court has listed five (5) factors to consider in making this decision:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in the record.
5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn.Cr.App.1976).

We agree with the defendant that the prosecuting attorneys’ remarks were improper. Nevertheless, the error here is harmless, given the overwhelming proof of the defendant’s guilt. See Vermilye v. State, 584 S.W.2d 226, 230 (Tenn.Cr.App.1979). When examined within the context of the factors mentioned in Judge, supra, we find that the prosecuting attorneys’ remarks resulted in no prejudice to the defendant.

The defendant next argues that the sentences imposed by the trial court were excessive and that the trial judge did not properly weigh the defendant’s physical condition in setting the sentences. The defendant complains that his paralysis should have been considered when determining the deterrent effect. Not only is this argument without merit, but the deterrent effect is only one of the purposes of the Criminal Sentencing Reform Act. T.C.A. § 40-35-102.

After reviewing the mitigating and enhancement factors as set forth in T.C.A. §§ 40-35-110 and 40-35-111, the trial court determined that the enhancement factors far outweighed the mitigating factors. The only mitigating factor found by the trial court was the defendant’s possible intoxication that may have existed at the time these acts were committed. The trial court further considered the facts of the case, the presentence report, the deterrent effect, and the defendant’s prior record in setting the sentences. We find that the trial court properly imposed the defendant’s sentences for his convictions of aggravated rape and aggravated kidnapping, in accordance with the Criminal Sentencing Reform Act.

Further, with respect to his aggravated rape and aggravated kidnapping convictions, we find the defendant’s complaint about his consecutive sentences to be mer-itless.

The trial court found the defendant to be a persistent, multiple, and dangerous offender, as such terms are defined by Gray v. State, 538 S.W.2d 391 (Tenn.1976). The record fully supports this finding by the trial court. Obviously, since the defendant falls within three (3) of the Gray classifications, he was an eligible candidate for consecutive sentencing. The trial court properly exercised its discretion in fixing consecutive sentences in this case.

Finally, we take cognizance of the defendant’s reference in his brief to the fact that while the jury returned verdicts of guilt as to aggravated rape and aggravated kidnapping, “no verdict was returned on the carrying a pistol indictment.”

The defendant was charged in a two count indictment (No. B-90241) with aggravated rape and aggravated kidnapping. In a separate three count indictment (No. B-93008), the defendant was charged in the first two counts with the misdemeanor offense of carrying a pistol with intent to go armed, and in the third count with the felony offense of carrying a pistol after having been previously convicted of a felony. The latter felony charge is proscribed by T.C.A. § 39-6-1716.

The trial court’s minute entry of July 27, 1983, indicates that at the outset of the trial, the defendant entered a plea of not guilty to the counts in Indictment No. B-90241 and entered a plea of “Guilty to indictment # B-93008 to the offense of Carry (sic) a pistol.” However, we note that the transcript shows that when the “indictments” were read to the jury, “pleas of not guilty were entered.” See Transcript, Vol. 4, p. 355. We are unable to find in the transcript any formal change of the defendant’s not guilty plea to one of guilty regarding any of the counts in Indictment No. B-93008. The record is absent any written plea of guilty signed by the defendant regarding any of the counts in the weapons Indictment No. B-93008. Nevertheless, statements made by counsel and the trial court during the trial indicate that some plea change was made regarding the offense of carrying a pistol but these statements are ambiguous and shed little light on the question of what actually oc-cured with regard to a plea change on the weapons charge.

At trial, the defendant argued that the counts in Indictment No. B-93008 should have been submitted to the jury for its verdict, notwithstanding that he had changed his plea to one of guilty regarding the misdemeanor charge of carrying a pistol. The trial court was of the opinion that in view of the defendant’s guilty plea, it was the trial court’s duty under the Criminal Sentencing Reform Act to make a finding and to impose sentence on the felony-firearms count in that indictment.

At any rate, the record shows that the trial court did not submit the charges in Indictment No. B-93008 to the jury. Rather, at the sentencing hearing on September 7, 1983, the trial court (as reflected by its judgment order) found the defendant guilty at a “bench trial” of the offense of “convicted felon in possession of a firearm” and imposed a three (3) year sentence (emphasis added).

As stated, the defendant was indicted in the third count of Indictment No. B-93008 for carrying a pistol with intent to go armed after having been previously convicted of a felony. Assuming arguendo that the trial court’s description of the offense in its judgment order could be interpreted as a finding of guilt of the indicted charge, we find other problems with the procedure used in finding the defendant guilty of this felony-firearms offense.

We need only to discuss one of the other problems, and that is that the record fails to show that the defendant ever entered a plea of guilty to the felony-firearms offense, as such was charged in the third count of Indictment No. B-93008.

At most, and as previously indicated, the defendant’s guilty plea would have related only to the first two counts of that indictment, and these counts only charged the misdemeanor offense of carrying a pistol with intent to go armed.

Thus, without considering whether the misdemeanor counts of Indictment No. B-93008 should have been submitted to the jury, we conclude from the record that the defendant never pled guilty to the felony-firearms offense, as charged in the third count of Indictment No. B-93008, and that this charge should have been submitted, along with appropriate instructions, to the jury for its verdict as to the defendant’s guilt or innocence of that charge. Also, we point out that a bifurcated procedure would have been necessary for a proper resolution of that charge. State v. Warr, 604 S.W.2d 66 (Tenn.Cr.App.1980).

For the reasons stated, we affirm the defendant’s convictions for aggravated rape and aggravated kidnapping; however, we reverse and dismiss the defendant’s conviction for the felony-firearms offense as charged in the third count of Indictment No. B-93008.

WALKER, P.J., and BYERS, J., concur.


source: Caselaw Access Project

author: DWYER, Judge.

license: Public Domain

text:
    STATE of Tennessee, Appellee, v. Mack Joseph SHELTON, Jr., Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Nov. 16, 1984.
    Permission to Appeal Denied by Supreme Court Feb. 4, 1985.

      James W. Greenlee, Knoxville, for appellant.
    W.J. Michael Cody, Atty. Gen., David M. Himmelreich, Asst. Atty. Gen., Nashville, Robert L. Jolley, Jr., Asst. Dist. Atty. Gen., Knoxville, for appellee.
   OPINION

DWYER, Judge.

The appellant, a Range II persistent and aggravated offender, appeals from convictions of assault to commit murder in the second degree, see T.C.A. § 39-2-102, and of possessing burglary tools, see T.C.A. § 39-3-408. He received confinement for eight years on the latter and four years on the former. The two sentences were ordered to be served concurrently and the possession conviction was ordered to be served consecutively with a prior federal sentence.

There are two issues: (1) whether the trial court erred in overruling appellant’s pre-trial motion to suppress and (2) whether an alleged withholding of exculpatory evidence by the State denied him a fair trial.

An examination of the evidence at the suppression hearing and other evidence from the record reveals the following facts: On the first week in April 1983, the T.B.I. officers were given information by Donald Stout that appellant was planning a holdup of the White Store in Cedar Bluff shopping center in Knoxville. Informant Stout told the officers that appellant was going to rob the store and that he was delivering the information to get even with the appellant for having set him up in the past. For four days the officers maintained surveillance in the parking lot. On April 7, 1983, officers observed a white Cadillac drive into the area. There was a passenger in the car. They alighted and were observed walking around as though, as stated by the State, “casing” the store. On Saturday, April 9, they were observed entering the lot in the white Cadillac around 9:00 p.m. The car was observed driving in the area in which the store manager was making a night deposit. The officers moved in on the Cadillac when it accelerated onto the street after a momentary stop. A portable blue light was turned on and placed on top of the squad car.

Appellant was observed on the passenger side of the fleeing car pointing a shotgun at one of the officers. When another squad car caused the Cadillac to stop by blocking its path, Stout jumped out and fled. A blast from the Cadillac wounded an officer that had been riding in the squad car that had blocked the Cadillac. When gunfire was directed on the Cadillac by police, appellant drove away and the car was found abandoned a short time later.

An inventory at the sheriffs garage revealed a shotgun, which was not identified as the weapon pointed at the officer at the outset of the chase, behind the front seat. Live and expended shotgun shells, a dent puller, a jumpsuit, a chisel, a six-piece screwdriver set, a pair of black gloves, and a screwdriver in the back seat with a broken tip were seized by police.

Examining the route of pursuit police found a police scanner and two face masks. In a burglarized car, police found a screwdriver tip that matched the broken screwdriver found in the Cadillac.

The appellant testified at the hearing that he had leased the Cadillac; that when officers shot at him he fled and hid in a field; and that he called officers the next morning.

The first issue: It is appellant’s reasoning that the officers did not have probable cause to stop the Cadillac. He points out that informant Stout had a long police record, was out to get appellant, and no crime had been committed. They acted on suspicion alone; hence, the officers were without authority to stop the Cadillac. Under the facts and circumstances enumerated, any reasonable and prudent officer would have been derelict in his duty not to have tried to intercept the Cadillac. An officer is not to stand idly by and wait until a felony has in fact been committed before he acts. The officers were also aware that appellant had a lengthy prior record. Further, when the officers attempted to stop the Cadillac, appellant was observed pointing a deadly weapon at them. This, coupled with the wounding of an officer, is overwhelming evidence of the justification for the action they took. See State v. Foote, 631 S.W.2d 470, 472 (Tenn.Cr.App.1982). The search of the car that followed thereafter was not unreasonable. The trial court did not err in overruling the motion to suppress.

The last issue: The appellant argues that the State denied him a fair trial by withholding exculpatory evidence. His urgings: (1) that T.B.I. agent Haynes would testify that appellant denied he had shot anyone; (2) that T.B.I. agent McBee was going to testify about a second weapon in the car, and that the State’s withholding of this information harmed appellant’s impeachment of witness Stout; and (3) that after trial a T.B.I. agent told him that the car in front of which the wounded officer was allegedly standing when shot suffered no damage. Appellant’s brief on this issue is inadequate. T.R.A.P. 27(a)(7), (g).

The State responded that it was unaware of any denial made by appellant to Officer Haynes. Since Haynes testified about this before the jury, there is no harm here.

On cross-examination, Stout testified that he had a pistol and appellant had a shotgun.

Finally, as the trial court held at the hearing on the motion for new trial, the presence or absence of damage to the car in front of which the wounded officer was standing when shot was not exculpatory and could not have affected the results. In short, it is not of sufficient “materiality” in the constitutional sense to affect guilt. United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). It is not newly discovered evidence that would have changed the results. State v. Goswick, 656 S.W.2d 355 (Tenn.1983). The issue overruled, the judgment of the trial court is affirmed.

CORNELIUS and SCOTT, JJ., concur.


author: TATUM, Judge.

text:
    STATE of Tennessee, Appellee, v. Edwin Ross WILKES, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Nov. 30, 1984.

      Scott Daniel, Murfreesboro, for appellant.
    William M. Leech, Jr., Atty. Gen., David M. Himmelreich, Asst. Atty. Gen., Nashville, Joseph D. Baugh, Dist. Atty. Gen., Franklin, for appellee.
   OPINION

TATUM, Judge.

This is an attempt to appeal from judgments entered on guilty pleas to three counts of crime against nature (fellatio), and one count of employing a minor for obscene purposes. Reservations were made to appeal judgments of the trial court denying motions to suppress evidence obtained by searches pursuant to two search warrants. For the reasons hereinafter discussed, the appeal is not authorized and must be dismissed. However, the guilty pleas are vacated and the cases are remanded to the trial court for proper disposition.

The indictment contained 234 counts charging crimes against nature and using minors for obscene purposes (T.C.A. § 39-6-1137). A motion to suppress was filed and a transcript of the hearing on that motion is a part of the record. No other facts are available to us except those found in the transcript of the hearing on the guilty plea.

The defendant worked and lived in Georgia during the week and returned to his residence in Fairview where he stayed on weekends. In February, 1981, he gave a key to his house to Johnny Wayne Ownes, one of the minors with whom he had been sexually involved. Owens lost his key and the defendant then gave a key to his barn and to his house to another minor, Robert Graves. According to the defendant, the key to the barn was to enable Graves to obtain dog food to feed the defendant’s dogs and the key to the house was for use in an emergency. Graves lived on property adjacent to the defendant's property in Fairview and for a considerable period had been spending nights with the defendant on nearly every weekend.

On April 6, 1981, during defendant’s absence, Graves and his 16-year-old sister, Evelyn Oliphant, went to the defendant’s house to feed the dogs. Evelyn entered the house looking for cigarettes and found a 1978 calendar book. The calendar book was stated to be an exhibit but was not made a part of the record for our inspection. From the transcript, we glean that the book contained from three to seven photographs per page depicting about 50 males, ranging in age from 3-years-old to 17-years-old, in various poses and sexual acts.

Graves, his sister, and their father took this book to the police. The chief questioned Evelyn about the book and talked to three of the males depicted in the photographs in the book.

After receiving information from these young males, the calendar book and Ms. Oliphant, the chief of police went to the District Attorney General for help in drafting an affidavit and search warrant. After executing the affidavit, a search warrant was issued by the General Sessions Judge. Armed with the search warrant, the chief entered the defendant’s residence and found additional photographs, cancelled checks and other items. This evidence was not preserved for our review.

After this search, the chief talked with two other minor males and obtained further information. He then procured another search warrant for the defendant’s residence. On his second search, he found pill bottles believed to contain human secretions and labelled with the initials of minors involved in unnatural sex activities, and a computer believed to have the capacity to program records of unnatural sex activities.

The motion to suppress was aimed only at the validity of the two search warrants and the admissibility in evidence of the fruits of the ensuing searches. Thus, even if these searches were invalid and the evidence obtained by the police searches was suppressed, other evidence available to the State would not be affected. Evidence that was not obtained in the two searches would include the calendar book and photographs found by Ms. Oliphant, testimony of the young males, and perhaps other evidence.

Before we can reach the questions involving the validity of the two search warrants and the constitutionality of the ensuing searches, we must first determine the threshold question of whether an appeal lies from the guilty plea. The appeal purports to have been brought pursuant to Rule 37(b), T.R.Cr.P.:

“(b) When an Appeal Lies. — An appeal lies from any order or judgment in a criminal proceeding where the law provides for such appeal, and from any judgment of conviction:
(1) Upon a plea of not guilty; or
(2) Upon a plea of guilty or nolo con-tendere if:
(i) Defendant entered into a plea agreement under Rule 11(e) but explicitly reserved with the consent of the state and of the court the right to appeal a certified question of law that is dispositive of the case; or
(ii) Defendant seeks review of the sentence set and there was no plea agreement under Rule 11(e); or
(iii) The error(s) complained of were not waived as a matter of law by the plea of guilty or nolo contendere, or otherwise waived, and if such errors are apparent from the record of the proceedings already had; or
(iv) Defendant explicitly reserved with the consent of the court the right to appeal a certified question of law that is dispositive of the case.” (Emphasis supplied)

The guilty pleas were bargained. In announcing the agreement between the State and the defendant, the Attorney General said that part of the agreement was that the defendant

“be allowed to reserve the search question in this particular case, although there is no stipulation as to whether that would be outcome (sic) determinative or not, when we understand that, but that he be allowed to maintain his— the search question and appeal that search question and that question be certified on all of the issues raised at that hearing.” (Emphasis added)

From this statement of the Attorney General and other portions of the guilty plea hearing, it is obvious that neither the State, the defendant, nor the trial judge considered the search issues to be disposi-tive. We quote other excerpts from the guilty plea hearing:

“THE COURT: Do you understand that you give up all of those rights by pleading guilty; that if you plead guilty, except for your right to appeal the search question and have a retrial, if you prevail there? You are giving up your right to a confrontation of the witnesses against you in a trial, and you are giving up your right to appeal? (Emphasis added)
MR. WILKES: Yes, sir.”
⅝ ‡ ⅜: ⅝ * ajt
“THE COURT: Okay. And you do understand that in the event that you are successful in your appeal, that doesn’t mean that you are acquitted; that simply means you would come back and have a trial with the evidence put on, but excluding the evidence that is in question?
MR. WILKES: Yes, sir.”
* * * * * *
“MR. DANIEL: (defense counsel) All right. The only other thing I have, Your Honor, and Gen. Baugh, I believe, has covered everything else. I just wanted to make clear that the Supression (sic) Motion, if, in fact, the Court sustained that, the accused would be allowed to withdraw the plea here and we would go back to square one.
THE COURT: All right. I think the record is clear on that.”

The defendant, in his briefs, repeatedly acknowledged that the issues are not dis-positive. For example, he concludes his rebuttal brief by saying:

“... Clearly, this Court must abide by the law of this State and suppress the use of the evidence as being the fruits of an illegal search with the result that the defendant’s plea be withdrawn and his conviction overturned entitling him to a trial upon the merits in which the evidence in question shall not be admissible and appellant shall be entitled to the return of his property.”

Interlocutory appeals are governed by Rules 9 and 10 of Tennessee Rules of Appellate Procedure. Non-dispos-itive search questions cannot be brought to this court by an interlocutory appeal. State v. Hartsfield, 629 S.W.2d 907 (Tenn.Crim.App.1980). As noted above, Rule 37(b)(2)(i) permits an appeal on a plea bargained guilty plea only with the consent of the state and of the court on a question of law that is certified to be dispositive of the case. As may be readily seen from what we have already said, neither party nor the court considered the question of these searches to be dispositive. The final judgment does not certify the question of law appealed as being dispositive, as the rule contemplates.

During oral argument, we informed the State and the defendant of the apparent infirmity in this appeal and directed that they file briefs in support of their contention that the rules permit us to entertain this appeal. In its brief on the question, the State says that

“(I)t would appear that the State has agreed the validity of the four guilty pleas at issue must stand or fall with the admissibility of the evidence seized pursuant to the warrants.”

This statement is in direct contradiction of the record but, even if we construe it to mean that the State now considers the issues to be dispositive, we still could not accept the appeal. As previously noted, Rule 37(b)(2)(i), T.R.Cr.P. requires that the trial judge agree and certify that the question is dispositive of the case. Obviously, the trial judge did not consider the question to be dispositive and made no such certification. This appeal is not permitted by Rule 37(b)(2)(i).

In its brief, the defendant insists that this appeal is pursuant to T.R.Cr.P. Rule 37(b)(2)(iii) and not 37(b)(2)(i). This argument overlooks the fact that a valid guilty plea is an admission of all facts alleged and is a waiver of all non-jurisdictional and procedural defects and constitutional infirmities, if any, in any prior stage of the proceeding. Parker v. State, 492 S.W.2d 456 (Tenn.Crim.App.1973). Rule 37(b)(2)(iii) does not permit an appeal of matters waived as a matter of law by the guilty plea. We think that the committee comments to the rule are correct. The comments state:

“The third provision will apply in cases where guilt was not contested but the record clearly reflects an invalidating error, such as the clear denial of the right to counsel or a conviction under an invalid statute, wherein it would be judicially inefficient to require a post-conviction collateral attack when the error is apparent upon the face of the existing record.”

This court will not violate court rules to assume jurisdiction of a matter on agreement of litigants and the trial court. We will not assume jurisdiction of a question involving the admissibility of evidence when guilty pleas are entered unless the question makes final disposition of the case. An issue is dispositive when this court must either affirm the judgment or reverse and dismiss. A question is never dispositive when we might reverse and remand for trial as we would be required to do in this case if we accepted jurisdiction, decided the question on its merits and found in favor of the defendant.

The defendant, in his court-requested brief, says that if we dismiss this appeal, we should remand for a new trial. He states that his attorney, the District Attorney, and the trial judge informed him that he could appeal the validity of the search warrant and obtain a trial excluding evidence obtained as a result of the two searches in the event we sustained his contentions. We agree with the defendant in this assertion and agree that it would be unfair under the circumstances to dismiss the appeal and affirm the judgments entered on the guilty pleas.

It results that the appeals of these four cases are dismissed, the guilty pleas and plea-bargain agreements are vacated, and the cases are remanded to the trial court for trial or other appropriate proceeding.

O’BRIEN and DAUGHTREY, JJ„ concur.


author: PER CURIAM.

text:
    PETROSCIENCE CORPORATION et al., Petitioners, v. DIAMOND GEOPHYSICAL, INC., Respondent.
    No. C-2723.
    Supreme Court of Texas.
    July 11, 1984.
    Rehearing Denied Feb. 20, 1985.
    Longley & Maxwell, Joe K. Longley, Austin, for petitioners.
    George M. Bishop, Houston, for respondent.
   PER CURIAM.

This is a suit on a note with a usury counterclaim. Diamond Geophysical sued Petroscience Corporation and two individual guarantors of the note. The note provided for interest at the rate of nineteen percent until maturity, but was silent about interest after maturity. On default of installment payments, Diamond Geophysical accelerated the note and brought suit. Diamond Geophysical’s original petition asked for interest at the rate of nineteen percent after maturity. It subsequently superseded that pleading with an amended petition asking in the alternative for interest at the maximum legal rate after maturity. Pe-troscience and its guarantors counterclaimed for usury. They alleged that since the note was silent about interest after maturity, the legal rate of six percent had to be implied under article 5069-1.03, which provides that a written contract with no specified rate bears interest at six percent. They likewise alleged that filing and service of the original petition constituted a “charging” of nineteen percent interest; that the rate charged was more than double the six percent allowed under article 5069-1.03; and, that they were therefore entitled to the special penalties provided in article 5069-1.06. The trial court granted Diamond Geophysical summary judgment on the note and denied the usury counterclaim. The court of appeals affirmed on the sole basis that as a matter of law a superseded pleading is not a “charging” of interest. 663 S.W.2d 68. Petroscience and its guarantors seek a writ of error, which we refuse, no reversible error. However, we expressly reject the sole reasoning of the court of appeals in affirming the trial court.

One of the grounds Diamond Geophysical also presented to the trial court to support its motion for summary judgment was that under Texas law, when a note specifies a rate of interest before maturity but is silent about any rate after maturity, the prematurity rate is implied as the post-maturity rate. We agree with this statement of Texas law.

This court early wrote that when a note specifies a rate of interest before maturity, but is silent about any rate after maturity, the law implies that the pre-maturity rate continues after maturity. Roberts v. Smith, 64 Tex. 94 (1885); Hopkins v. Crittendon, 10 Tex. 189 (1853); see also Linz v. Eastland County, 39 S.W.2d 599 (Tex.Comm’n App.1931, holding approved). Independent reviews of Texas law have stated this to be the Texas rule. Cromwell v. County of Sac, 96 U.S. 51, 61, 24 L.Ed. 681 (1878); 45 Am.Jur.2d Interest and Usury § 69, at 63-64 & n. 20 (1969); 47 C.J.S. Interest & Usury § 40(b), at 101 n. 92 (1982). Since the implication of interest after maturity is apparently the Texas rule, it is consistent with the Texas policy of giving a reasonable construction to a note that avoids usury, to hold that the pre-ma-turity rate is implied as the post-maturity rate. Cf. Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918, 921 (Tex.1976). The present statutory scheme does not alter the acknowledged Texas rule. This court recently considered virtually the same question presented here. Fort Motor Credit Co. v. Long, 608 S.W.2d 293 (Tex.Civ.App.—Beaumont 1980, writ ref’d n.r. e.). In Long, by refusing the application for writ of error with the notation, “no reversible error,” we approved the court of appeals’ holding that the pre-maturity rate was implied after maturity, and necessarily rejected Long's construction of the statute. We find no material distinction between the present case and Long.

Since the trial court’s summary judgment may properly be upheld on an alternative ground expressly presented to the trial court, we refuse the application for writ of error, no reversible error. Tex.R.Civ.P. 483.

      . At the time, a legal rate.

      . All statutory references are to the Texas Revised Civil Statutes Annotated, including 1982 supplements.


author: McGEE, Justice. KILGARLIN, Justice,

text:
    EQUITABLE GENERAL INSURANCE COMPANY OF TEXAS, Petitioner, v. Thomas YATES, Respondent.
    No. C-3210.
    Supreme Court of Texas.
    Dec. 19, 1984.
    Rehearing Denied Feb. 20, 1985.

      Hudgins, Hudgins, Warrick & Mattingly, Jeffrey H. Marsh, Houston, for petitioner.
    James W. Patterson, Houston, for respondent.
   McGEE, Justice.

This is an appeal from a summary judgment rendered in favor of petitioner, Equitable General Insurance Company of Texas, against respondent, Thomas Yates. The issue presented is whether the trial court abused its discretion in granting Yates’ motion for new trial conditioned upon the payment of $500 by Yates to opposing counsel for their attorney’s fees. The court of appeals held that the trial court had no authority to grant a motion for new trial based on such a condition and that the subsequent final order overruling Yates’ motion for new trial, based on his failure to pay the attorney’s fees, was error. 672 S.W.2d 822. We disagree; however, for the reasons stated herein, we affirm the judgment of the court of appeals.

Thomas Yates was awarded compensation by the Industrial Accident Board for injuries sustained while employed by Schepps Dairy. Both the insurance carrier, Equitable General Insurance Company of Texas and Yates filed suit to set aside the award. Equitable General filed a motion for summary judgment on the grounds that Yates had failed to file his claim for workers’ compensation within six months from the day of injury. Yates did not file a response to the summary judgment motion until the day of the hearing; no motion for leave of court to file was tendered. The trial court refused to consider the late filed response, granted Equitable General’s motion for summary judgment and on March 29, 1983 rendered judgment setting aside the award.

Yates filed a motion for new trial alleging substantially the same grounds as were in his response to the summary judgment. On May 9, 1983 an interlocutory order was rendered which provided that the motion for new trial would be granted upon the payment of $500 by Yates to the opposing counsel as attorney’s fees for preparing and presenting a response to Yates’ motion for new trial. The order also stated that a final judgment overruling the motion for new trial would be rendered upon Yates’ failure to pay opposing counsel. Yates did not pay the $500; however, on June 8, 1983 he filed a response to the interlocutory order. In an affidavit, attached to the response, Yates claimed that he was “financially unable to raise or to pay Five Hundred Dollars.... ” No contest to this oath was filed. A final judgment was rendered denying the motion for new trial on June 9, 1983. A bill of exception perfected the next day states that the trial court, after the affidavit of inability was filed, overruled the motion for new trial.

A trial court has long been vested with great discretion in ruling upon a motion for a new trial and, absent manifest abuse of discretion, its action will not be disturbed on appeal. Neunhoffer v. State, 440 S.W.2d 395, 397 (Tex.Civ.App.—San Antonio 1969, writ ref’d n.r.e.). The latitude of the trial court’s discretion is addressed in Rule 320, which provides: “New trials may be granted and judgment set aside for good cause, on motion or on the court’s own motion on such terms as the court shall direct.” Tex.R.Civ.P. 320.

A conditional grant of a motion for new trial based on a party’s payment of costs is well within the trial court’s discretion. This is especially well established when a default judgment has been rendered and a subsequent motion for new trial is granted, conditioned upon payment of the costs in obtaining the default judgment. Town v. Guerguin, 93 Tex. 608, 610, 57 S.W. 565, 566 (1900). In particular, trial courts are permitted to grant new trials conditioned upon the payment of attorney’s fees, expenses for witnesses, travel and other costs incurred in obtaining the default judgment. United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958, 959 (Tex.1976). Conditional grants of new trial in default judgment cases are governed by the equitable consideration of not causing any injury to the party obtaining the original judgment. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939).

Our determination of the present case should be guided by the same principles. The trial court granted Yates’ motion for new trial conditioned upon his paying the opposing counsel $500 “as attorney’s fees for preparing and presenting the Response to Plaintiff’s Motion for New Trial....” We find the assessment was a proper equitable determination and the trial court was within its discretion to grant a new trial based on such a condition.

The court of appeals relied on Continental Oil Co. v. Henderson, 180 S.W.2d 998 (Tex.Civ.App.—Fort Worth 1944, writ ref'd w.o.m.) in holding that the trial court had no authority to make payment of all expenses for bringing the suit and attorney’s fees a condition in granting a motion for new trial. We agree. Continental Oil, however, determined that a new trial should have been granted as a matter of law based on newly discovered evidence. In addition, the attorney’s fees sought were for the entire trial, not just the expenses of preparing the motion for new trial. Moreover and most importantly, the parties in Continental Oil took the proper procedural steps, and the expenses incurred were not the result of a failure to file timely responses.

While we find that such conditional grants of new trial are permissible based on equitable considerations, in the present case the trial court abused its discretion in rendering final judgment and denying the new trial. Thomas Yates filed an affidavit of inability to pay and no contest was subsequently filed. An uncontested affidavit of inability to pay is conclusive as a matter of law. Pattison v. Spratlan, 539 S.W.2d 60, 61 (Tex.), cert. denied, 429 U.S. 1001, 97 S.Ct. 531, 50 L.Ed.2d 612 (1976). Although we recognize the general rule that attorney’s fees are not costs, the assessed fees in the present case will be considered in light of Rule 145 and the rule’s intended purpose to guarantee a forum to those unable to pay court costs. Pinchback v. Hockless, 139 Tex. 536, 538, 164 S.W.2d 19, 20 (1942). Accordingly, the trial court abused its discretion by imposing such a monetary condition in the face of an uncontested affidavit of inability to pay.

The judgment of the court of appeals is affirmed.

KILGARLIN, J., dissents with an opinion in which POPE, C.J., and SPEARS and GONZALEZ, JJ., join.

KILGARLIN, Justice,

dissenting.

I respectfully dissent. What an anomaly! Had the trial judge followed his initial decision and overruled the motion for new trial without expressing any desire for leniency, he would be affirmed. His refusal to consider an untimely response to the motion for summary judgment would be upheld, where, as here, no excuse was given at the time for the late filing. Rhodes v. City of Austin, 584 S.W.2d 917, 921-22 (Tex.Civ.App.—Tyler 1979, writ ref’d n.r. e.). In the absence of a response, summary judgment was proper. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). That would have been that. No appellate court in this state would have had a second thought about affirming the judgment. Here, however, because of a desire to do fairness, and give the plaintiff a second chance, the trial judge offered a condition for granting a new trial, which he was not obligated to do. So, we reward his generosity by a reversal. The only possible result of the court’s decision is that trial judges will replace compassionate justice with cold-hearted judicial edicts.

Moreover, it is a tortured reading of the Rules of Civil Procedure by which we allow this result. Regrettably, the court opinion emasculates the obvious intent of Rule 320, Tex.R.Civ.P., to confer discretion on the trial judge. That rule states in pertinent part, “New trials may be granted and judgment set aside for good cause, on motion or on the court’s own motion on such terms as the court shall direct.” (Emphasis added). In spite of this language, this court holds that the trial court in this case may not condition a new trial on payment of attorney’s fees. Does not the court opinion now require us to amend Rule 320 to delete trial court discretion in this area? Are we not professing to understand the circumstances surrounding the trial better than the judge who sat through it?

The torture extends beyond Rule 320. We now equate attorney’s fees with court costs in order to invoke the indigency provisions of Tex.R.Civ.P. 145. I readily accept the concept of indigency affidavits when an inability to pay costs exists. Otherwise, we would be guilty of violating our constitutional guarantee of open access to courts. Tex. Const, art. I, § 13. However, attorney’s fees were conditionally assessed in this case just as sanctions would be assessed for discovery violations. Costs are what clerks receive. No rule exists authorizing indigency affidavits in lieu of paying court-ordered attorney’s fees.

By this opinion, I fear that we open the door for potential violence to the trial judge’s power to assess monetary sanctions for discovery abuse. A major intent behind the adoption of Tex.R.Civ.P. 215 on April 1, 1984, was to clothe the trial judge with greater discretion to apply proper sanctions based on the degree of the abuse involved. See Tex.R.Civ.P. 215, interp. commentary (Vernon 1984).

This court recognized, in amending the rules, that administration of justice would be enhanced by empowering courts to cope with unreasonable delay tactics, meaningless responses, gamesmanship, and the other abuses which thwart the discovery process’ intended orderly search for truth. Kilgarlin & Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 St. Mary’s L.J. 767, 770 (1984). What will happen now when a trial judge imposes a monetary sanction for discovery abuse? If an indigency affidavit is filed, and not opposed, does the abuse go unpunished? If the affidavit is contested, must the trial judge expend vital court time conducting a hearing to decide if he can enforce the monetary sanction which he has determined? Are we not encouraging the trial judge, who earnestly attempts to obtain compliance with the discovery process, to levy a harsher sanction such as striking of pleadings, dismissal or default, rather than suffer through a contest of a milder ruling ordering attorney fees payment?

Finally, I note that the court approvingly cites United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958 (Tex.1976). They do not recite, however, language from the opinion which says “[w]e agree that, as a condition to the granting of his motion for new trial, a defendant should be required to reimburse plaintiff for costs of suit incurred in obtaining the judgment.” Id. at 959. With our decision today, all I can say is sic transit United Beef Producers, Inc. v. Lookingbill and Rule 320, Tex.R.Civ.P.

I would reverse the judgment of the court of appeals.

POPE, C.J., and SPEARS and GONZALEZ, JJ., join in this dissent.


author: WALLACE, Justice.

text:
    Terri L. ANDERSON, Petitioner, v. Cleo GILLILAND, Respondent.
    No. C-3475.
    Supreme Court of Texas.
    Jan. 16, 1985.
    Rehearing Denied Feb. 27, 1985.
    McCorkle & Westerburg, Tom S. McCor-kle, Dallas, for petitioner.
    Carl Luna, Garland, for respondent.
   WALLACE, Justice.

This will probate suit presents the sole issue of what constitutes the measure of reimbursement.

Terri L. Anderson is the surviving daughter and devisee under the will of Lawrence Gilliland, deceased. Cleo Gilli-land is the widow of Lawrence Gilliland and executrix of his estate.

At the date of the Gilliland’s marriage, Mrs. Gilliland owned certain real property. During the marriage the community expended $20,237.89 to build a home on the property. At the time of Mr. Gilliland’s death, this home had enhanced the separate property of Mrs. Gilliland by the sum of $54,000.00.

At trial Mrs. Anderson sought to have Mrs. Gilliland include one-half of the reimbursement due the community in the inventory of the estate of Lawrence Gilliland, because of the improvements the community made to the separate estate of Mrs. Gilliland. The trial court held that the proper measure of reimbursement was the enhanced value of Mrs. Gilliland’s separate property. It ordered Mrs. Gilliland to include in the inventory an amount equal to one-half of the enhancement resulting from the improvements.

The trial court also found that approximately one-third of the expenditures for the home was from Mrs. Gilliland’s separate funds. The court of appeals found that Mrs. Gilliland had not properly traced any separate funds into the home. 677 S.W.2d 105, appealing after remand 624 S.W.2d 243. Mrs. Gilliland did not appeal that finding.

The court of appeals further held that the proper measure of reimbursement to an estate which has expended funds to erect improvements on another estate is the enhancement of value to the receiving estate or the cost of the improvements, whichever is less. The court of appeals rendered judgment finding the amount of reimbursement due the community was one-half of the $20,237.89 expended, less one-half of the outstanding mortgage of $10,154.00. The community monies expended in building the home were proceeds from the mortgage. We affirm the judgment of the court of appeals in part and reverse and render in part.

The various courts of appeals of Texas are not in agreement on the issue presented here. The Dallas Court of Appeals in this case acknowledged that its decision was contrary to that of the Fort Worth Court of Appeals in Cook v. Cook, 665 S.W.2d 161, (Tex.App.—Fort Worth 1983, writ ref’d n.r.e.). Cook follows Harris v. Royal, 446 S.W.2d 351 (Tex.Civ.App.—Waco 1969, writ ref’d n.r.e.). Both Cook and Royal held that enhancement alone, regardless of cost, is a proper measure of reimbursement in cases such as this.

Another view held by several courts is that the proper measure of reimbursement is enhancement or cost, whichever is less. Hale v. Hale, 557 S.W.2d 614, 615 (Tex.Civ. App.—Texarkana 1977, no writ); Trevino v. Trevino, 555 S.W.2d 792 (Tex.Civ.App.—Corpus Christi 1977, no writ); Girard v. Girard, 521 S.W.2d 714 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ).

A third measure of reimbursement set forth by another court is cost, regardless of enhancement. In Re Higley, 575 S.W.2d 432, 434 (Tex.Civ.App.—Amarillo 1978, no writ).

The confusion among the courts of appeals is due in great part to imprecise language by this court commencing with the decision of Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935). In consecutive paragraphs Dakan held:

... Hence results the rule that the community estate must be reimbursed for the cost of the buildings erected by joint labors or funds upon the separate property of one of the spouses.... Furrh v. Winston, 66 Tex. 521, 524, 1 S.W. 527, 529 (1886) (emphasis added),

and

... in case of reimbursement for improvements, the amount of recovery is limited to the amount of enhancement of the property at the time of partition by virtue of the improvements placed thereon. Clift v. Clift, supra, [72 Tex. 144, 149, 10 S.W. 338 (1888).]

This court has stated in several cases that the proper measure of reimbursement is the enhanced value of the benefited estate resulting from the improvements. However, most of those statements have been dicta.

In Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777, 781 (1952), we stated:

The amount of reimbursement is not determined by the cost of improvements made, but by the enhancement in value of the estate improved by virtue of the improvements made by the other estate.

In Lindsay, no reimbursement was allowed because there were no pleadings or evidence of enhancement in value.

In Sharp v. Stacy, 535 S.W.2d 345, 351 (Tex.1976), we stated:

The principle is well established in equity that a person who in good faith makes improvements upon property owned by another is entitled to compensation therefor. The measure of compensation to the claimant is not the original cost of the improvements, but the enhancement in value of the land by reason of the improvement.

The claimant in Sharp failed to secure a finding on the enhancement in value of the property by virtue of the improvements and, therefore, was also precluded from recovery.

The right of an estate to reimbursement from another estate is an equitable right and should be determined by equitable principles. Dakan, 83 S.W.2d at 627, supra. Therefore, it is incumbent upon the courts to insure that a benefited estate is not required to pay more in reimbursement than the amount in which it was benefited by the other estate. Likewise, it is necessary to ascertain that the benefited estate pays no less than it has been benefited.

The “cost only” rule, if followed, would provide an easy-to-apply measure since it would not require proof of enhancement. However, such a rule would, in many instances, permit the owner of the benefited estate to be enriched at the expense of the contributing estate. This is true because the estate which contributes the capital necessary to construct the improvements would not share in the increase in value resulting from the investment. The “enhancement or cost, whichever is less” rule, however, would permit the benefited estate the maximum recovery at the expense of the contributing estate in all situations. This does not comport with equity.

We hold that a claim for reimbursement for funds expended by an estate for improvements to another estate is to be measured by the enhancement in value to the benefited estate. This rule is more likely to insure equitable treatment of both the contributing and benefited estates in most situations.

The judgment of the court of appeals is affirmed insofar as it holds that Mrs. Gilliland did not properly trace any separate funds to the improvements to her separate property. The judgment is reversed insofar as it holds that reimbursement is measured by the cost or enhancement, whichever is less. We render judgment for Terri L. Anderson and require Cleo Gilliland to include the sum of $21,-923.00, representing one-half of the $54,-000.00 enhancement to her separate property, less one-half of the outstanding mortgage on the property, in the inventory of the estate of Lawrence Gilliland.


text:
    W.O.S. CONSTRUCTION COMPANY, INC., Petitioner, v. Bernard HANYARD, Respondent.
    No. C-3346.
    Supreme Court of Texas.
    Jan. 30, 1985

      Elliott, Churchill, Hansen, Maxfield & Gibbs, Roger A. Hansen, Dallas, for petitioner.
    Law Offices of Mike Aranson, Edward B. Klein, Dallas, for respondent.
   PER CURIAM.

This is a breach of contract action arising out of a cost-plus construction contract. The action was initiated by a painting subcontractor against W.O.S. Construction Company, the general contractor, and Bernard Hanyard, the building owner. W.O.S. filed a cross action against Hanyard and Bernard Hanyard Enterprises, Inc. for labor and materials furnished pursuant to the contract. The trial court rendered judgment in favor of W.O.S. against Bernard Hanyard, individually. The court of appeals, in an unpublished opinion, held that Bernard Hanyard was not individually liable.

Rule 93 requires a party to file a verified pleading in order to assert “that the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.” Tex.R.Civ.P. 93(2) (Vernon 1984). Hanyard did not file a verified denial, contending that he was not liable in the capacity in which he was sued. Therefore, Hanyard could properly be held liable in either his individual or corporate capacity. There is evidence to support a judgment against Hanyard individually because he executed the contract in question before Bernard Hanyard Enterprises, Inc. was formed. Bibbee v. Root Glass Co., 128 Tex. 220, 96 S.W.2d 975 (1936); Weatherford, M. W. & N. W. Ry. Co. v. Granger, 86 Tex. 350, 24 S.W. 795 (1894). We hold that the court of appeals erred in holding that Hanyard was not individually liable.

Pursuant to Tex.R.Civ.P. 483, we grant the writ of error and, without hearing oral argument, reverse the judgment of the court of appeals and affirm the judgment of the trial court.


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

text:
    Robert L. MARSH, Appellant, v. The STATE of Texas, Appellee.
    No. 169-82.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1984.

      Don Ervin, Robert W. Tarrant, Houston, for appellant.
    William Meitzen, Dist. Atty., and Thomas R. Culver, III, Asst. Dist. Atty., Richmond, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of possession of over four ounces of marihuana and assessed punishment at ten years’ confinement and a $5000.00 fine. The Court of Appeals for the First Supreme Judicial District, 630 S.W.2d 305 affirmed the conviction. We granted appellant’s petition for discretionary review in light of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), but Robbins has since been disapproved. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We will discuss the questions raised by appellant in light of applicable law.

On the evening of March 27, 1978, Texas Ranger Ray Scholton was fishing on the 4444 ranch in Fort Bend County. Scholton was permitted to fish on the ranch in return for keeping an eye out for trespassers and cattle thieves. Shortly before midnight Scholton saw “a lot of activity” near the ranch’s grass landing strip, about x/4 of a mile away. He saw several people whom he could not identify, a Cadillac, and a camper-equipped pickup truck near the strip. He also saw flares and flashlights.

Scholton testified that he did not know whether the people he saw were trespassing or had permission to be on the land, but he suspected illegal activity.

Scholton left the ranch and drove four miles to Simonton, where he telephoned the Fort Bend County Sheriff’s Department. He drove back on Guyler Road toward the ranch. He stopped next to some cattle pens 200 yards or less from the landing strip, stayed there for 2 or 3 minutes, and saw an airplane circling low overhead.

Scholton admitted on cross-examination that he had written in his offense report that Robbie Pearson, the son of the owner, seemed to be in control of the premises. He testified that a week earlier Pearson had told him that he was waiting for a friend to fly an aircraft into the ranch at night. The record is not clear whether this particular night was supposed to be the night immediately preceding the offense or a night a week prior to the offense. However, Scholton knew that the friend had not arrived by the time of the instant events.

Scholton left and drove about four miles to Wallis, where he exchanged his pickup truck for a car with a police radio. He picked up Deputy Sheriff Larry Lee and drove back on Guyler road toward the ranch. He parked the car on the side of the road about 1½ miles from a gate entrance to the ranch.

Soon after this, Scholton and Lee saw the headlights of two vehicles coming from the ranch toward their car. When they passed Scholton’s car he identified them as a Cadillac and a pickup truck with camper. Scholton testified that he recognized the Cadillac as the same car he had seen on the ranch a week before. Pearson and another man to whom Scholton had been introduced had been standing beside the Cadillac at that time and Scholton testified he knew that the car was permitted on the ranch at that time.

Scholton and Lee followed both vehicles and continuously tried, without success, to contact a marked police car to stop them. After a few miles the Cadillac continued east and the pickup turned north; Scholton followed the truck.

Appellant was the driver of the pickup truck. He testified that he had pulled off the road and stopped because the officers flashed the lights of their car and drove up very close to his rear bumper. Scholton and Lee testified that they did not flash their lights and that appellant had pulled off the road of his own accord.

Scholton pulled in behind the truck, approached the driver’s side with a rifle, and ordered the driver out. Lee approached the passenger side of the truck with his gun in hand and ordered the passengers out. Appellant, another man, and their wives, were in the pick-up. Scholton testified that at that time none of the people were free to leave. Scholton asked appellant for identification. Appellant stated that he did not have any. Scholton said he wanted to find out if they had violated the law and “had a truck load of contraband.” Scholton also testified that he shined his flashlight into the back of the pickup and observed a tarpaulin covering some type of cargo. Appellant told Scholton that the vehicle contained feed or fertilizer. Schol-ton asked appellant to open the rear of the pickup. Appellant refused and asked if Scholton had a search warrant. Appellant asked Scholton to read him his Miranda rights and eventually the camper shell was opened.

Scholton claimed that he wanted the back opened for his own personal safety and because he felt there might be contraband. Lee testified that he smelled “what appeared to he marijuana” coming from the back of the track, although he could not see it. Lee testified that he noticed this odor of marihuana at the time the passengers were getting out of the pickup, before the camper shell had been opened. Subsequently the camper was opened and six bales of marihuana wrapped in plastic covering with lettering that said “Matamoras Fertilizing Company” were found. Schol-ton said he first smelled marihuana at the time the camper top was opened.

Appellant contests the initial stop by Scholton and Lee. The testimony that the pickup had pulled off the road and stopped and that the officers following the car just pulled in behind and approached the car with guns drawn does not alter the nature of the investigation as a “stop.” Ebarb v. State, 598 S.W.2d 842 (Tex.Cr.App.1979). When the officers ordered appellant and the others out of the truck and, as Scholton testified, they were not free to go, they had been “seized”. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officers’ actions in observing, following, and detaining appellant must meet the standard necessary to justify the intrusion of an investigative stop. That standard requires that the law enforcement officer have specific, articulable facts, which in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the citizen. Terry v. Ohio, supra; Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981); Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978). Mere suspicions do not meet this test, Hull v. State, 613 S.W.2d 735 (Tex.Cr.App.1981), but neither is absolute certainty required. Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976, opinion on rehearing 1977).

The specific and articulable facts from which Scholton drew his inference that illegal activity might be occurring and investigation was necessary, including the lateness of the hour of the plane’s arrival, the activity consistent with unloading cargo in the dark by several persons, the caravan and flares indicating planned activity by several persons, rather than a random or emergency landing, and the knowledge that clandestine rendezvous with aircraft in remote locations in the dead of night are standard practice in the drug importation trade, gave rise to a rational inference that reasonably warranted the intrusion of the investigative stop of appellant.

Appellant next contends that the trial court erroneously admitted into evidence the marihuana which was the product of an illegal arrest and search. He contends that the search of the pickup was unlawful because no probable cause existed to search and no exigent circumstances were present to permit the warrantless search and seizure.

Having determined that the initial stop was proper, we find as a consequence, given that deputy Lee detected the odor of marihuana coming from the pickup, that the search was also proper. Razo v. State, 577 S.W.2d 709 (Tex.Cr.App.1979); Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); United States v. Ross, supra.

Appellant finally contends that the evidence was insufficient to sustain the conviction because the State did not prove that appellant knowingly possessed the marihuana. To support a conviction for possession of marihuana the evidence must affirmatively link the accused to the contraband in such a manner, and to such an extent, that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts. Christopher v. State, 639 S.W.2d 932 (Tex.Cr.App.1982); Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979).

The oft-stated rule in possession cases is the following:

It has been consistently held in this State that possession means more than just being where the action is; the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband .... Therefore, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can' be concluded he had knowledge of the contraband as well as control over it.

Both prongs of the test must be met. Examples of the kind of additional facts and circumstances which can indicate knowledge and control when an accused is in a vehicle usually involve a combination of facts, e.g., Deshong v. State, 625 S.W.2d 327 (Tex.Cr.App.1981), (marihuana in open or plain view, marihuana conveniently accessible to the driver, and the driver shown to be the owner of the car); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977), (a strong odor of marihuana in the car, either recently smoked or raw, contraband found on the accused, or the accused under the influence of marihuana, and conflicting stories as to who controlled the car). See also Johnson v. State, 625 S.W.2d 330 (Tex.Cr.App.1981); Olguin v. State, 601 S.W.2d 941 (Tex.Cr.App.1980).

Reyes v. State, 575 S.W.2d 38 (Tex.Cr.App.1979) presents a fact situation similar to the instant case. In Reyes the defendant was a passenger in a four-wheel drive Plymouth Trail Duster. The sheriff smelled the odor of “bulk type raw marihuana” emanating from the vehicle. The driver was told to open the back of the vehicle. A tarpaulin covered several large plastic-wrapped bundles of marihuana, 660 pounds in all. There was no partition between the passenger compartment and the rear of the vehicle where the marihuana was found. This Court noted several factors in concluding that the evidence was insufficient to affirmatively link the defendant to the contraband: there was no evidence that appellant was under the influence of marihuana or other drug; there was no evidence he had any contraband on his person; he did not own the vehicle; the marihuana was wrapped in plastic bags and covered with a tarpaulin; and, perhaps most significantly concerning the odor, “While Deputy Perez may have acquired the skill of detecting the odor of marijuana through his narcotic investigations, it was not shown that the appellant knew the smell of marihuana and such expertise may not be presumed. Armstrong v. State, 542 S.W.2d 119 (Tex.Cr.App.1976).”

Much the same can be said of appellant in the present case. Appellant was the driver of a pickup truck which had a camper shell over the bed of the pickup. There is no evidence of whether the window was open in the partition between the interior cab of the truck where the appellant was sitting and the back where the marihuana was found. Appellant did not own the truck, and he told Scholton that the truck contained “feed or fertilizer.” The marihuana was found wrapped in sealed plastic bundles bearing the words “Matamoras Fertilizer Company.” There is no evidence that any contraband was found on appellant’s person or that appellant was under the influence of any drug.

Despite these facts, the instant case is distinguishable from Reyes because there are additional facts and circumstances not present in Reyes that suffice to link appellant to the marihuana so that a reasonable inference arises that appellant had knowledge that the contraband was marihuana.

The discovery of marihuana in Reyes came as a result of a stop for a speeding violation! There was no evidence about where the car had come from or about the passenger of the car. The finding of insufficiency rested on the lack of evidence to prove that the defendant recognized the odor as marihuana and thus knew that the contraband was marihuana.

In the instant case there are incriminating facts other than the strong odor of marijuana. Scholton saw the truck near the landing strip on the ranch, in the area where “a lot of activity” was taking place. He saw people with flares and flashlights and saw a plane circling low over the landing strip. He suspected illegal activity was occurring. Scholton saw the same truck leaving the ranch and appellant was driving when it was stopped a short time later. From these facts surrounding the stop of the vehicle it is a rational inference that appellant had been present at the landing strip when all the activity took place. This inference, together with the previously described circumstances of the activity on the ranch in the middle of the night and the circumstances of the stop, provide the necessary additional independant facts and circumstances which affirmatively link the appellant to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it. Unlike Reyes, in which odor alone was the link, the instant ease presents a stop with a context in which the stop and discovery of the marihuana must be viewed. From these additional facts a rational inference arises that appellant knew that marihuana was in the truck. Seen in that context, it can be concluded that the evidence sufficiently shows appellant’s knowledge of the marihuana. See also Christopher v. State, 639 S.W.2d 932 (Tex.Cr.App.1982).

The judgment of the court of appeals is affirmed.

CLINTON, Judge,

dissenting.

Simply stated, the majority would have it that every night a peace officer sees an airplane “circling low overhead” near a private landing strip where there are flares and flashlights and several persons in and about motor vehicles, he may later intrude into the personal security of the driver and occupants of the vehicles without violating constitutional and statutory restraints against unreasonable seizures.

Calling it “the intrusion of an investigative stop,” the majority says that it was warranted by a rational inference drawn “from specific and articulable facts” that “illegal activity might be occurring and investigation was necessary.” However, the majority does not consider “the whole picture,” and even the “facts” selected by the majority are consistent with innocent behavior of persons involved in any other midnight arrival of an airplane on a private landing strip.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is the source for the general proposition stated by the majority. Id., U.S. at 21, S.Ct. at 1879. But the Supreme Court of the United States and this Court as well have since made clear that an investigative stop must be justified by some objective manifestation that the person stopped “is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 69 L.Ed.2d 621 (1981); Hull v. State, 613 S.W.2d 735, 739 (Tex.Cr.App.1981); Armstrong v. State, 550 S.W.2d 25, 31 (Tex.Cr.App.1977). “That a generalized suspicion will not suffice” was demonstrated by this Court in Hull v. State, supra, relying large part on teachings by the unanimous Supreme Court in Cortez, supra.

First off, writing for the Supreme Court the Chief Justice noted past usage of “a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person,” including terms like “articulable reasons” and “founded suspicion;” but they are not “self-defining” and, more to the point, “they fall short of providing clear guidance dispositive of the myriad factual situations that arise.” 449 U.S. at 417, 101 S.Ct. at 695. Thus, that proposition which the majority is today applying is passe.

Continuing the Chief Justice said:

“But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Citations omitted.]” Ibid.

Turning to explicate what had just been established, the Chief Justice pointed out:

“The idea that an assessment of the whole picture must yield particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. ******
“The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said that ‘[tjhis demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence. ’ [Citations omitted.]” Id., 449 U.S. at 418, 101 S.Ct. at 695.

The opinion of the Supreme Court then demonstrates that the principles just discussed are implicated in that cause by pointing out in meticulous detail how “fact on fact and clue on clue afforded a basis for the deductions and inferences that brought the officers to focus on [a suspect].”

Since the majority does not — indeed cannot — follow the Cortez formulation, I respectfully dissent.

TEAGUE and MILLER, JJ., join.

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

      . In making that assessment a trained officer will draw inferences and make deductions from available data such as objective observations, police reports and consideration of modes or patterns of operation of kinds of lawbreakers.

      . Emphasis is by Chief Justice Burger.


author: THOMAS G. DAVIS, Judge.

text:
    Ricky TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 423-82.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.

      Ward P. Casey, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and C. Chris Marshall, Michael Jergins and Larry Moore, Asst. Dist. Attys., Fort Worth, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Trial was before the jury upon appellant’s plea of not guilty of aggravated robbery. V.T.C.A. Penal Code, Sec. 29.-03(a)(2). After finding appellant guilty, the jury assessed punishment, enhanced by a prior conviction, at twenty-eight years. The conviction was affirmed by the Court of Appeals for the Second Supreme Judicial District (Fort Worth). Taylor v. State, 632 S.W.2d 693 (Tex.App.1982—Fort Worth). We granted appellant’s petition for discretionary review in order to examine the standard used by the Court of Appeals in determining that the evidence was sufficient, and to review the court’s finding that an allegedly extraneous offense was properly admitted.

Appellant was convicted of intentionally and knowingly, while in the course of committing theft of property and with intent to obtain and maintain control of said property, threatening and placing David King in fear of imminent bodily injury and death. King was assistant manager of a Pizza Inn restaurant. The trier of fact also found that appellant used and exhibited a firearm.

Appellant does not dispute that two men wearing stocking masks entered a Pizza Inn in Richland Hills on July 8, 1979, and committed an aggravated robbery. He does dispute the State’s contention that he was one of the two men.

Only two of the many employees and customers of the Pizza Inn on the night in question testified. Assistant manager King stated that the robber using a gun wore blue jeans and a white short-sleeve shirt with little brown stripes on it. According to King, the shirt was a “western type plaid thing.” King stated that the other robber had on jeans and a red flannel shirt.

Witness Tammy Combs was held from behind by the gun-wielding robber and did not get a good look at the clothes he or the other robber was wearing.

Both King and Combs testified that seconds after the robbers left the restaurant, shots rang out. When King finally opened the front door he saw an individual in custody of the police. The individual’s clothing “appeared to match” the clothing worn by the gun-toting robber. Combs also got a quick glance at the man in police custody. She testified that she did not recognize the man as anyone she had ever seen before or recognize his clothing as clothing she had seen before.

Police Chief Richard Turner was at the police department that evening at approximately 10:00 p.m. when an alarm went off indicating that a robbery was taking place at the Pizza Inn. Turner and Officer Tis-dale immediately drove to the Pizza Inn, arriving in about a minute. Turner was not in uniform but Tisdale was. The police car was unmarked. There was conflicting testimony as to whether a working dome light was in use.

Seconds after the officers exited from the patrol car, two individuals wearing stocking masks over their faces came rapidly out of the Pizza Inn.

Turner testified that the first man was wearing a red flannel long-sleeve shirt. The second man carried a gun and wore blue jeans and a sleeveless western-style shirt. The shirt was white with a light green or turquoise print on it. Tisdale remembered the gunman’s shirt as being sleeveless and light colored with a multicolored design on it that was more red than anything else. He too, however, testified that the other individual wore a long-sleeve red flannel shirt.

After the two men exited the Pizza Inn, Turner yelled, “halt, police.” The gunman raised his pistol and pointed it at the officers. The officers began firing at the gunman. As the gunman headed toward a car, the flannel-shirted man ran in the opposite direction and the officers fired at him. This man dropped the bag he was carrying and was never apprehended. Meanwhile, the gunman had positioned himself underneath a car. He was quickly persuaded to surrender. When the officers subdued him, they found a stocking on the ground in the immediate vicinity.

Both Turner and Tisdale testified that appellant was the gunman who exited the Pizza Inn on July 8. The officers discovered a car near the spot where appellant was apprehended. It was registered to appellant. A pantyhose package was found in the front seat.

The Court of Appeals ruled that the evidence against appellant was direct and applied the test laid down in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to determine that the evidence was sufficient. Appellant contests both of these aspects of the Court of Appeals’ ruling.

Direct evidence directly demonstrates the ultimate fact to be proven, whereas circumstantial evidence is direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven. Rodriguez v. State, 617 S.W.2d 693 (Tex.Cr.App.1981); Richardson v. State, 600 S.W.2d 818 (Tex.Cr.App.1980); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973).

In the instant case there was no direct evidence that appellant committed an aggravated robbery as charged in the indictment. Neither of the Pizza Inn employees who testified identified appellant as the robber, nor could they testify that the robber and the man apprehended by the police were one and the same. Though the officers proffered direct evidence, it all concerned what transpired as the robbers fled the scene.

Under Jackson v. Virginia, supra, and Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981), the relevant question, when considering sufficiency of the evidence on appeal, is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789.

The due process standard for appellate review enunciated in Jackson v. Virginia, supra, is applicable in Texas to both direct and circumstantial evidence cases. Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983).

Thus, though the Court of Appeals incorrectly characterized the evidence of aggravated robbery as direct rather than circumstantial, the standard it ultimately employed to determine sufficiency was the proper one.

At the punishment phase, appellant pled not true to the enhancement paragraph of the indictment. The State then proved the enhancement allegation that appellant had been previously convicted of robbery in 1973 and that the conviction had become final before commission of the aggravated robbery. The State also proved that appellant had been twice convicted of delivery of heroin. Proof of these two prior felony convictions was proper under Art. 37.07, Sec. 3(c), V.A.C.C.P. The State then rested.

Appellant took the stand in his own behalf at punishment and on direct examination admitted his guilt in the 1973 robbery and in the two delivery of heroin cases. Appellant also stated that he had been addicted to heroin in 1976, while still on probation for the 1973 robbery. Until he was jailed when his probation was revoked, he “regularly [shot] heroin about every day.” Appellant claimed, however, that he had not used heroin while he was in the penitentiary, nor since his release on parole in January of 1979, six months before the commission of the aggravated robbery. Appellant said he had learned a lesson from his time in the penitentiary.

On cross-examination by the State, appellant claimed again to have been heroin-free since he entered prison. The prosecutor then asked appellant without objection the following series of questions about the mechanics of heroin use:

“Q. Now how is it that people put heroin into their bodies? How is it you put it in yourself?
“A. Insulin syringe.
“Q. A little plastic disposable syringe?
“A. Most of them are.
“Q. And you give yourself a shot with it?
“A. Yes, sir.
“Q. Is it muscular or do you put it in your vein?
“A. In the vein.
“Q. Now is heroin a liquid or a powder or what is it?
“A. Powder.
“Q. Do you put the powder in your vein?
“A. No, sir, you dilute it with water.
Q. Before you put it in the — do you just put it in water and mix it up or do you cook it?
“A. You put it in water and mix it up and some people cook it.
“Q. What do you mean by cook it?
“A. Put a match under it and let it boil.
“Q. You can’t boil it up in powder, can you? You have got to put it in some kind of container and put a match under it and boil it off?
“A. Yes, sir.
“Q. What sort of container do you put it in in order to cook it? To boil it?
“A. A spoon.
“Q. A spoon?
“A. Yes.
“Q. Just hold it in a spoon and put a match under it and cook it in liquid form and put it in a syringe and put it in your vein?
“A. Yes, sir.
“Q. How about — could you improvise a little cooker, like, maybe say the cap of a liter bottle of Coca Cola? Where you have got the twist off cap, the aluminum twist off cap, say, that looks about like that? Could you use that bottle cap maybe where you twist the metal off and leave a little string of metal there on the cap and put some heroin down in the bottom and some water in it and put a match under it and cook it in a bottle cap?
“A. I don’t know.
“Q. You have never seen anybody do that?
“A. No.
“Q. Have you ever seen a little cooker like that?
“A. No.
“Q. Have you ever had a little cooker like that?
“A. No.”

After this last response, the prosecutor showed appellant State’s Exhibit No. 15 and asked if he recognized the contents. Appellant said “I know what it is but I don’t recognize it” and denied having seen the objects before. He further denied that any of the items of the exhibit had been in his car when he parked it at the Pizza Inn on the night of the aggravated robbery.

The arresting policeman, Officer Tisdale, had testified at guilt-innocence that he searched for the car the robbers might have used. When he found the car in the Pizza Inn parking lot, he entered it and found appellant’s driver’s license and wallet. When the State called Tisdale for rebuttal at punishment, he described finding the wallet in a door pocket of the car. Appellant’s earlier testimony established that this door pocket was on the driver’s side. Tisdale said that “sticking out a little ways above the top of the pocket” was a vinyl pouch. When he inventoried the contents of the car Tisdale removed the vinyl pouch and found it contained a hypodermic syringe, a bottle cap, and some cotton. This pouch and its contents were admitted into evidence as State’s Exhibit 15.

Appellant claims the admission of this exhibit was error, because the evidence proved an extraneous unadjudicated offense in violation of the rule against such proof. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

We do not agree that the items found in appellant’s car proved an extraneous offense. While the evidence is sufficient to show appellant possessed the items, Deshong v. State, 625 S.W.2d 327 (Tex.Cr.App.1981), possession of a hypodermic syringe was no crime at the time appellant was arrested. Furthermore, the evidence altogether failed to prove possession of any controlled substance. No controlled substance was found either in the car or on appellant. The police did not test the seized items for drug traces. No tourniquet or needle was found. Tisdale said that appellant had not appeared to be under the influence of drugs. Appellant’s arms were examined and there was no indication that he had recently injected any drugs. Thus this case differs from Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972), where the Court was of the mind that a police officer’s statement “I saw needle tracks and holes, one fresh” tended to show an extraneous offense. There is no evidence in the instant case that appellant possessed or had recently used a controlled substance. The evidence does not prove an extraneous offense and no instruction to the jury limiting the use of the evidence was required. Baxter v. State, 645 S.W.2d 812 (Tex.Cr.App.1983); Lindley v. State, 635 S.W.2d 541 (Tex.Cr.App.1982); Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.1979).

The evidence was relevant to the issue of appellant’s reform. When appellant took the stand at punishment, he denied that he committed the robbery he had just been convicted of, and asked the jury to assess as little time as they might see fit because “there has been a mistake made.” Appellant claimed that his body was heroin-free, and denied even having seen the syringe and other items found in his car after the robbery. He was arguing in effect that the jury should not consider his two prior convictions for delivery of heroin in assessing punishment because he was free of the habit. He had learned a lesson from his time in the penitentiary. He had reformed, and the jury should discount the possibility of appellant’s future use of heroin and the crimes that would naturally follow.

But to the extent that appellant was prepared to use heroin if it should come his way, the impression of reform he left with the jury was questionable at best. The jury was entitled to this information, and admission of the evidence to refute appellant’s claim of reform was proper. Moreover, a substantial amount of evidence concerning appellant’s sales and use of heroin was already before the jury by the time the State offered the physical evidence appellant complains of. Against this background it is unrealistic to believe that the syringe and other items so inflamed the jury’s mind that the prejudicial nature of the evidence outweighed its relevance.

The judgment of the Court of Appeals is affirmed.