author: ODOM, Judge.

text:
    Odis Pippen ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 037-84.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.

      Michael R. Hoffman, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gilbert P. Howard, William Edie and Catherine Stagman, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of the offense of driving with license suspended, Tex.Rev.Civ.Stat.Ann., Art. 6687b, sec. 34 (Vernon, 1977), and the jury assessed punishment at six months confinement and a fine of five hundred dollars. The judgment was affirmed by the Ft. Worth Court of Appeals in Allen v. State, 659 S.W.2d 925. We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holdings that the evidence is sufficient to sustain the conviction, and that proof of a culpable mental state is not required under Art. 6687b, sec. 34, supra.

Art. 6687b, sec. 34, supra, provides as follows:

“Any person whose operator’s, commercial operator’s, or chauffeur’s license or driving privilege as a nonresident has been cancelled, suspended, or revoked as provided in this Act, and who drives any motor vehicle upon the highways of this State while such license or privilege is cancelled, suspended, or revoked is guilty of a misdemeanor and upon conviction shall be punished by fine of not less than Twenty-five Dollars ($25) nor more than Five Hundred Dollars ($500), and, in addition, there shall be imposed a sentence of imprisonment of not less than seventy-two (72) hours nor more than six (6) months.”

By information the State alleged that appellant did unlawfully:

“knowingly and intentionally drive and operate a motor vehicle on a public street and highway there situated when his Texas operators license was then and there suspended, said suspension having been theretofore ordered and effected by the Texas Department of Public Safety, under the authority and provisions of Art 6687b, Sec 24(a)(2) Vernon’s Annotated Texas Civil Statutes ...”

Tex.Rev.Civ.Stat.Ann. Art. 6687b, sec. 24 (Vernon 1977) provides in pertinent part:

“(a) The license of any person shall be automatically suspended upon final conviction of any of the following offenses:
“2. Driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs.
“(b) The suspension above provided shall in the first instance be for a period of twelve (12) months. In event any license shall be suspended under the provision of this Section for a subsequent time, said subsequent suspension shall be for a period of eighteen (18) months.
“(c) The suspension of any license shall be automatically extended upon licensee being convicted of operating a motor vehicle while the license of such person is suspended; such extended period of suspension to be for a like period as the original suspension, and is in addition to any other penalty assessed, as provided in this Act.”

The record reflects that on August 9, 1981, Officer Melton of the Dallas police department saw appellant driving on a public street and stopped appellant after seeing him drive his pickup truck off of the roadway. Appellant’s breath had a strong odor of alcohol, and when Officer Melton asked appellant for his license, appellant replied that he didn’t have one. After obtaining appellant’s name, address, and date of birth, Officer Melton radioed the dispatcher, who informed Melton that appellant’s license was under a mandatory driving while intoxicated (DWI) suspension. Melton confronted appellant with these facts and appellant admitted that his license was under suspension. Appellant was arrested for driving while license suspended (DWLS).

The State introduced two exhibits into evidence to show appellant’s prior license suspensions. Neither exhibit was objected to on the basis of hearsay, although appellant now contends that State’s Exhibit No. 2 is hearsay and should not be considered in determining the sufficiency of the evidence.

The State’s first exhibit was a certified abstract of Texas Department of Public Safety records showing that appellant’s license was automatically suspended for DWI convictions on April 22, 1976, August 28, 1978, September 7, 1979, and December 5, 1980. On each of the above dates, appellant’s license was suspended for a period of eighteen months. This exhibit also showed that appellant’s license was suspended for 18 months on August 28, 1978, for failure to comply with the Safety Responsibility Law and was suspended for 18 months on September 26, 1980, for a DWLS conviction. Finally the exhibit showed that appellant’s license expired on January 12, 1977.

State’s Exhibit 2 was a certified copy of a letter mailed to appellant notifying him of his license suspension based on the December 5, 1980 DWI conviction. The letter informed appellant that his license was suspended for 18 months from the date of conviction. A notation at the bottom of the letter stated: “Previous conviction for DWI: 10-21-75; 9-4-75; 4-22-76; 8-28-78; 9-7-79; 9-26-80.” The instant controversy centers around the probative value of this notation purporting to set out prior DWI convictions, because the Court of Appeals relied upon such information.in affirming appellant’s conviction.

In order to obtain a conviction for driving while license suspended, the State is required to prove either that the accused had an unexpired license which was suspended at the time of the alleged offense, or that the accused’s privilege to drive was suspended at or before the time his license expired by its own terms, and that because of an unbroken chain of successive suspensions, that privilege remained suspended from the expiration date to the time of the alleged offense. Preble v. State, 402 S.W.2d 902; Cathy v. State, 402 S.W.2d 743.

In the instant case it is undisputed that appellant’s license expired by its own terms on January 12,1977, over four years before the alleged offense occurred on August 9, 1981 and was not renewed. Thus under Preble and Cathy, supra, it was incumbent upon the State to show that appellant’s license had been suspended at or before the expiration date of January 12, 1977, and that by an unbroken chain of successive suspensions, the license remained under suspension on August 9, 1981. If appellant’s license suspensions lapsed at any time after the license expiration date, but before the date of the alleged offense, then under Preble and Cathy appellant could not have been convicted of DWLS since he had no license which could have been under suspension. See Bryant v. State, 294 S.W.2d 819.

The State’s first exhibit shows on its face a gap in appellant’s license suspensions between April 22, 1976, when an 18-month suspension was imposed, expiring October 22, 1977, and August 28, 1978, when the next automatic suspension began. The Court of Appeals, however, looked to the notation- on the bottom of State’s Exhibit 2, which purported to show two DWI convictions, dated September 4, 1975, and October 21, 1975, prior to the April 22, 1976 DWI conviction. The Court stated that suspensions under Art. 6687b, sec. 24(a)(2) áre automatic upon final conviction of DWI, and that “suspensions imposed under Art. 6687b, sec. 24, run cumulatively and are thus ‘stacked’ from the date of the initial suspension.” Allen v. State, supra, 659 S.W.2d at 928.

We reverse the judgment of the Court of Appeals. Even assuming that the notation regarding appellant’s purported prior DWI convictions is not hearsay, we can find no authority for the Court of Appeals’ holding that the automatic license suspensions imposed under Art. 6687b, sec. 24(a)(2) for DWI convictions run cumulatively with any prior automatic DWI conviction license suspensions.

Indeed, the language of the statute indicates just the opposite. Art. 6687b, sec. 24(c), supra, provides that upon conviction for driving while license suspended (DWLS), the suspension of any license is automatically extended for the same period as the original suspension, and the suspension arising from such DWLS conviction is to be cumulated with the original suspension. We must assume that, by specifically creating a cumulation provision, but by limiting suspensions to subsequent DWLS convictions, the legislature did not intend to cumulate suspensions arising from other convictions that give rise to a suspension under Art. 6687b, sec. 24, such as DWI convictions.

Preble v. State, 402 S.W.2d 902, cited by the Court of Appeals for the proposition that DWI suspensions run cumulatively, does not support that holding. In Preble, the Court properly noted that a subsequent DWLS conviction would give rise to a suspension cumulated with the original suspension, as specifically provided for by statute. Preble did not hold that automatic DWI conviction suspensions run cumulatively. See also Texas Department of Safety v. Preble, 398 S.W.2d 785.

Thus since appellant’s license expired effective October 22,1977, appellant’s subsequent DWI convictions on August 28, 1978, September 7, 1979, and December 5, 1980, could not have operated as automatic license suspensions, since appellant no longer had a license to be suspended. Bryant v. State, supra.

Therefore, the judgment must be reversed and reformed to show an acquittal. Since we find the evidence insufficient to sustain the conviction, we need not discuss appellant’s other grounds for review.


source: Caselaw Access Project

license: Public Domain

text:
    Patricio E. MOYA, Appellant, v. The STATE of Texas, Appellee.
    No. 198-84.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.

      Juan Martinez Gonzales, New Braunfels, for appellant.
    Thomas L. Bridges, Dist. Atty. and John Gilmore, Asst. Dist. Atty., Sinton, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of unlawful delivery of a controlled substance. Punishment was assessed at 15 years and a fine of $10,000. The Court of Appeals affirmed the conviction. Moya v. State, 663 S.W.2d 680 (Tex.App.1983). We granted appellant’s petition for review to consider the ground of error complaining of denial of the motion to quash the indictment.

The indictment alleged delivery of a quantity of cocaine “of more than 28 grams but less than 200 grams” on June 9, 1982. This quantity would have constituted aggravated delivery under Sec. 4.031(c) of the Controlled Substances Act (Art. 4476-15, V.A.C.S.) as amended by Acts 1981, 67th Leg., p. 698, ch. 268, eff. Sept. 1, 1981. That Act, however, was held unconstitutional in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), on grounds of a defective caption to the bill. Appellant’s motion to quash asserted the caption to the bill was defective and relied, inter alia, on Crisp v. State, 643 S.W.2d 487 (Tex.App.1982), which was subsequently affirmed in Ex parte Crisp, supra. The Court of Appeals in this case overruled appellant’s ground of error for the reason that the indictment was still sufficient to allege delivery of cocaine under the law in effect prior to enactment of the 1981 amendment. Such holding is in accord with this Court’s decision in Ex parte Crisp, supra, upon which the Court of Appeals relied. Because the indictment was sufficient to allege an offense, appellant’s motion to quash was without merit and properly overruled.

The Court of Appeals in this case further held that because the punishment assessed was within the range allowed under the applicable law, i.e. the law in effect before the 1981 amendment, the erroneous jury charge on punishment submitting the greater range of punishment allowed under the unconstitutional 1981 amendment did not present reversible error. We will also undertake an examination of this issue.

Appellant was charged with and convicted of delivery of cocaine. This substance is listed in Penalty Group 1, Art. 4476-15, Sec. 4.02(b)(3)(D), V.A.C.S. The law in effect before the unconstitutional 1981 amendment classified delivery of a controlled substance in penalty group 1 as a first degree felony. Art. 4476-15, Sec. 4.03, Texas Drugs & DWI Handbook, p. 88. The punishment range for a first degree felony under the Controlled Substances Act, prior to the unconstitutional 1981 amendment, was confinement for life or any term of years not more than 99 nor less than five.. There was no provision for a fine. See Art. 4476-15, Sec. 4.01, Texas Drugs & DWI Handbook, p. 73. Accordingly, the fine assessed in this case was not authorized by law. The verdict on punishment in this case was therefore void at its inception and must be set aside. Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983).

The judgments of the trial court and the Court of Appeals are reversed and the cause is remanded.


author: CLINTON, Judge.

text:
    Bobby GEORGE v. The STATE of Texas, Appellee.
    No. 274-84.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.
    Marc May, Odessa, for appellant.
    Robert Huttash, State’s Atty., and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The offense alleged in the indictment in this cause is aggravated assault — intentionally, knowingly and recklessly causing serious bodily injury to another by shooting him with a handgun. V.C.T.A. Penal Code, §§ 22.01(a)(1) and 22.02(a)(1) and (4). In an unpublished opinion the El Paso Court of Appeals found there was evidence to support a requested instruction on what appellant calls the “defensive issue of accident,” but was transformed in the court below into a “defense of involuntary conduct;” the court held that refusal of such instruction was error and, accordingly, reversed the judgment of conviction for assault and remanded the cause. George v. State (Tex.App.—El Paso, No. 08-82-00295-CR, delivered December 28, 1988). Concluding that the analysis leading to the finding of the court of appeals is faulty, we will reverse its judgment and affirm that of the trial court.

Sufficiency of evidence to support conviction for assault is not challenged; the material facts of the matter are not substantially disputed. We set them out practically as found by the court of appeals, supplementing its account with an exposition in greater detail when deemed helpful to an understanding of our resolution of the problem presented.

On the late afternoon of a March day, thirteen year old Leonard Martin was visiting younger brothers of appellant in the home of appellant and other members of his family. Appellant was then seventeen. All present were friends. Standing in front of a seated Martin, appellant demanded a dollar from him; when the latter verbally refused to produce it appellant drew a .22 caliber revolver from a pocket, thumbed its hammer partially back and, pointing it at Martin’s face, told Martin to “give me the dollar;” the gun discharged, its bullet striking Martin in the left maxilla of his face, crossing the frenulum of the nose and traveling under the skin until it came out from the right frontal area of his face. Appellant threw the gun aside, striking a brother in the chest; he went with Martin to the home of a neighbor to seek aid, but they were denied. At another house, however, an ambulance was summoned.

In his confession and testimony at trial appellant described in greater detail that after he asked Martin a second time for a dollar he cocked the hammer back short of its locked position; that he “stuck [the gun] up in [Martin’s] face;” that Martin “turned his face away;” that then “the hammer slipped off my thumb” and the gun “went off.” Appellant further told the jury that he did not know the gun would nor did he mean for it to go off “when he cocked the hammer back;” he denied ever pulling the trigger and stated that he did not intend to shoot Martin or harm him in any way — it was an accident.

The offense of assault is committed when one intentionally, knowingly or recklessly causes bodily injury to another; the assault becomes aggravated when the conduct causes serious bodily injury or involves use of a deadly weapon. Sections 22.01(a)(1) and 22.02(a)(1) and (4). In the instant case the trial court fully charged the jury with respect to both offenses, and in a general verdict the jury found appellant guilty of assault. That is, that appellant “intentionally or knowingly or recklessly caused bodily injury to Leonard Martin by shooting him with a handgun.” While we do not presume to say what culpable mental state the jury believed had been proved, the fact is that the theory of the case presented by the State was that appellant recklessly caused serious bodily injury.

The court of appeals analyzed the situation thus presented as follows:

“In this case, the State chose to proceed on a theory of aggravated assault consisting of intentionally, knowingly or recklessly causing serious bodily injury by shooting with a gun. There is a distinction between voluntarily discharging a weapon in a reckless manner and handling a weapon in a reckless manner so that it discharges involuntarily or by accident. This is the case even where the same degree of injury results. The State alleged the former; the evidence raised the latter. Consequently, it was error to refuse the requested charge.”

In full Section 6.01(a) reads: “A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.”

In Williams v. State, 630 S.W.2d 640 (Tex.Cr.App.1982) this Court found that “[tjhere is no law and defense of accident in the present penal code,” but it further discerned that the Legislature had not jettisoned the notion.

“The function of the former defense of accident is performed now by the requirement of Y.T.C.A. Penal Code, Section 6.01(a), that, “A person commits an offense if he voluntarily engages in conduct ...” Dockery v. State, 542 S.W.2d 644, 649-650 (Tex.Cr.App.1976). If the issue is raised by the evidence, a jury may be charged that a defendant should be, acquitted if there is a reasonable doubt as to whether he voluntarily engaged in the conduct of which he is accused.” Id., at 644.

However, the Court found that overruling an objection to the charge in that respect was not error since “there was no evidence that the appellant did not voluntarily engage in the conduct which injured the complainant; he merely said he did not intend the resulting injuries.” Ibid.

By its ellipsis of the remaining underscored language of Section 6.01(a), obviously the Williams opinion focused on the meaning of “voluntarily” engaging in conduct rather than examining the meaning of “conduct” as used in the penal code. Thus, while instructive on the matter of “volun-tariness,” Williams alone will not solve our problem.

The metamorphosis of Section 6.01(a) is traced in the Practice Commentary following it, and the view of the writers is that the underscored phrase “appears to be a partial definition of ‘conduct’ ” — partial because there is a general definition of “conduct” in Section 1.07 — and, therefore, redundant. According to § 1.07(a)(8), “ ‘Conduct’ means an act or omission and its accompanying mental state.” And under § 1.07(a)(1), “ ‘Act’ means a bodily movement, whether voluntary or involuntary, and includes speech.”

While the § 6.01(a) phrase may be somewhat redundant, it also may be in conflict with §§ 1.07(a)(1) and (8) insofar as one can read parts of those two general definitions to mean that “conduct” may consist of an involuntary act and its accompanying mental state. Nonetheless, we construe the provisions to mean that one voluntarily engages in conduct when the conduct includes, inter alia, a voluntary act and its accompanying mental state, if any. That such conduct also includes an involuntary act does not necessarily render engaging in that conduct involuntary. Nor is conduct rendered involuntary merely because an accused does not intend the result of his conduct. Williams v. State, supra, at 644; Simpkins v. State, 590 S.W.2d 129, 135 (Tex.Cr.App.1979).

Under the former penal code the Court drew a distinction between accidental homicide and negligent homicide, viz.:

“The difference between accidental homicide and negligent homicide is whether the act resulting in death was intentionally or unintentionally done. The focus is on the accused’s act, not on the result of his act. Accidental homicide is the result of an unintentional act while negligent homicide may only result from an intentional act ...” (Emphasis in original.)

Stiles v. State, 520 S.W.2d 894, 896 (Tex.Cr.App.1975).

While there was disagreement on the rationale in Dockery v. State, 542 5.W.2d 644, 647-655 (Tex.Cr.App.1976) (Opinion on Appellant’s Motion for Rehearing), all agreed that the “intentional — unintentional” formulation of Stiles v. State, supra, is no longer valid. Similarly, the present penal code has changed the focus of reckless criminal assault from an act of violence with intent to injure to the result that bodily injury is recklessly inflicted. See Practice Commentary following § 22.-02. An intent to injure is not required. Williams, supra, at 644.

In Dockery there was also disagreement over whether in a homicide case the present penal code requires the State to prove “both voluntary conduct and a culpable mental state,” Dockery, supra, at 650, or just “a culpable mental state,” id,., at 654-655. However, Dockery does not address the situation where the proof shows conduct that includes a voluntary act, as well as an involuntary act — nor does Williams.

In the instant case the court of appeals found that the evidence raised what it characterized as appellant’s “handling a weapon in a reckless manner so that it discharges involuntarily or by accident.” But “handling” is surely a voluntary act and “reckless manner” is simply another way of saying one is acting “recklessly.” Thus appellant is shown to have voluntarily engaged in conduct up to that very second when appellant would have it that “the hammer slipped off my thumb,” and the handgun discharged a bullet onto the face of Martin. Under strikingly similar circumstances the Dockery court held that “[his] actions were sufficiently voluntary to establish the offense ...,” 542 S.W.2d at 650. Compare Withers v. State, 631 S.W.2d 595 (Tex.App.—El Paso 1982, affirmed on other grounds, 642 S.W.2d 486 [Tex.Cr.App.1982]).

Here the evidence shows that appellant’s actions were sufficiently voluntary until “the hammer [of the handgun he was holding] slipped off [his] thumb,” but the court of appeals then turned its focus to the handgun, finding that it discharged “involuntarily or by accident.” We cannot accept that a mechanical object is capable of volition, and if the court meant to say that appellant was not at that moment doing an “act,” we do not agree. If the hammer “slipped off [his] thumb,” it had to be that the thumb holding the hammer partially back released just enough pressure for the hammer to “slip” forward. However slight, that is “bodily movement” within the meaning of § 1.07(a)(1), and there is no evidence that it was involuntary. Accordingly, the trial court was correct in refusing the requested charge on “defense of involuntary conduct.”

Under the circumstances of this case, however, factually whether appellant’s precise bodily movement that released the hammer of his handgun was voluntary or involuntary is of little moment. Where the issue is whether an accused recklessly caused bodily injury by shooting with a gun and the evidence shows that the accused voluntarily engaged in conduct that includes, inter alia, one or more voluntary acts leading to the actual shooting, we hold as a matter of law the fact that when such conduct also includes a bodily movement of the accused sufficient for the gun to discharge a bullet, without more — such as precipitation by another individual, as in Garcia and Simpkins, both supra — a jury need not be charged on the matter of whether the accused voluntarily engaged in the conduct with which he is charged. For that reason also the court was correct in refusing appellant’s requested instruction.

The judgment of the El Paso Court of Appeals is reversed and the judgment of conviction entered by the trial court is affirmed.

ONION, P.J., and TEAGUE and MILLER, JJ., dissent.

      . The righthanded appellant drew, thumbed the hammer and held the handgun with his left hand.

      . At trial a treating emergency physician determined that wounds were “not immediately life threatening," and the ophthalmologist to whom Martin was referred for further care agreed with a characterization of wounds to an eyelid as "superficial.” They accounted for such relatively slight damage by the angle at which the bullet struck and then glanced; Martin demonstrated to the jury just how the bullet hit at an angle and “bounced” off his face, hit his nose and moved under facial skin to exit from the right frontal area.

      .In his opening argument to the jury the prosecutor emphasized that his medical testimony showed serious bodily injury, and then disclaimed any intention “to prove that Bobby George intentionally or knowingly committed this offense,” adding "I am not going to ask you to go in there and deliberate on intentionally or knowingly." Therefore, he asserted that “the argument in this case is going to boil down to serious bodily injury.” For his part counsel for appellant interpreted certain testimony of appellant to mean that he was not aware of any risk in partially cocking the pistol by thumbing back its hammer and, perforce, did not act recklessly. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . The court further opined that appellant "could have been indicted and properly convicted of reckless conduct,” proscribed by V.T.C.A. Penal Code, § 22.05, and noted that a requested instruction to that effect had been refused by the trial court.

      . The point is illustrated in the Practice Commentary with an example of an intoxicated driver charged with involuntary manslaughter — he "may not successfully defend with the argument he fell asleep before the collision ...” Note, however, that he may claim his conduct constituted criminally negligent homicide. Ormsby v. State, 600 S.W.2d 782 (Tex.Cr.App.1979).

      . It occurs to the writer of this opinion that if the burden of proving voluntary conduct rests on the State, as the three judge majority held in Dockery, then absence of voluntary conduct is not a “defense” such that when raised by the evidence must be the subject of an instruction for the jury to acquit if there is a reasonable doubt as to whether an accused voluntarily engaged in the conduct of which he is charged. But the Williams court declared that the instruction must be given. Williams v. State, supra, at 644.

      . Dockery was sleeping face down on a mattress on the floor of a bedroom with a .32 caliber pistol in his hand when the deceased and two others entered; he raised up off the floor and the pistol "accidently went off, just that fast,” Dockery then explaining to the two eyewitnesses that he "was tiying to uncock the pistol and the pistol went off.” Id., at 648.

      . In Withers, he was seated on a stool trying to repair the "hanging hammer” of a handgun when his wife came out with a puppy and sat on a stool beside him; the puppy jumped into her lap, , she pushed it off and it jumped onto Withers; he then pushed the dog away with his hand holding the gun and “the hammer slipped,” the gun firing a bullet into the head of his wife. The El Paso Court of Appeals stated the rule to be that “if the discharge of the weapon does not result from the voluntary conduct of the defendant, i.e., conduct of a third party, as in Garcia [v. State, 605 S.W.2d 565 (Tex.Cr.App.1980) ], then the issue of accidental homicide is raised and an instruction must be given,” but found under the circumstances that "there was no [evidence of] involuntary conduct which raises the issue of accidental homicide.” Id., at 597.
      In Garcia the offense charged was murder; this Court noted his testimony that as they were walking along together the deceased gave him a gun with its hammer "already pulled,” and when he told deceased that he was going to throw the gun into a canal, the deceased suddenly grabbed Garcia’s right elbow with one hand and the gun with his other hand in a move to take it away from Garcia, at which point the gun went off; such testimony was held sufficient to raise an issue of fact as to “the voluntar-iness of appellant's conduct,” id., at 566. When Garcia is contrasted with Dockery (see note 7, ante and accompanying text), the perception of the court of appeals that such a rule is developing may be correct. However, it did not apply that rule in the instant case, though "the hammer slipped” and conduct of a third party is not implicated.


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

text:
    Rose Marie MONTELONGO, Appellant, v. The STATE of Texas, Appellee.
    No. 62539.
    Court of Criminal Appeals of Texas, In Banc.
    Dec. 5, 1984.

      James R. Lawrence, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

Appellant was convicted of murder. The jury assessed punishment at 99 years’ confinement.

Appellant contends the evidence adduced at her trial was insufficient to support the verdict of guilt.

The victim was appellant’s four-year-old stepdaughter. Nueces County Medical Examiner Joseph Rupp testified about her injuries and the cause of her death:

[T]he subject had an extensive injury. Had severe bruising and contusions and was obviously a battered child, had been beaten severely.... [0]n the head area there were lacerations and contusions. There were contusions of the forehead, bridge of the nose, underneath the right eye. There was a laceration of the lip. There were abrasions of the chin and upper portion of the neck. And there was a large superficial abrasion on the left side of the jaw.
And then the other significant injury involved the buttocks area and lower chest and abdomen.... [T]he buttocks were just a mass of confluence, which simply means overlapping and superimposed mass of confluent abrasions and contusions extending all over the gluteal area or back side and the upper part of the legs.... They were recent but not all of identical age.

Q. And could you determine or do you have an opinion as to the age of the oldest wound?

A. Well, its hard to tell exactly, but I would certainly date them from a number of days....

Q. And how are contusions and abrasions normally caused, if you know, Dr. Rupp?

A. A contusion is produced by the application of blunt force. If what you use has any sort of an edge to it, then you may get a laceration overlying it. If it’s a relatively flat or blunt object like a fish (sic) or a book or a board or something like that, then you get bruising, rather than any laceration of the skin. And if you — you can then produce a laceration by scraping the superficial surface of the skin away; or if you contuse the skin to a great extent, then you actually mash the skin so that the oils seep out. This is an abrasion, parchment-like type thing, like you see in the pictures, over the buttocks.

Q. Now the parchment-like skin — I will show you now [a photograph of the victim] and ask you whether or not this is the parchment type skin which you’re referring to.

A. That’s right. This is the most severe area of hemorrhage. This is just as the result of multiple blows with a blunt object, which produce the changes in the skin. And underneath this, produced enough hemorrhage, in association with all the other hemorrhaging and all the other bruises, that the subject bled to death into her skin and muscle and subcutaneous tissue. ...

Q. [W]hat types of objects could be used?

A. Well, this was produced with a flat blunt object, a hand, a book, a paddle, a board, that sort of thing.

Then if you look at the border areas of these contusions, where they don’t overlap and one doesn’t flow into another, you can see some linear bruises and abrasions, some little linear bruises, particularly on the lower part of this picture. And this would indicate beating with a stick, possibly some round small object, like a stick or that sort of thing....

Q. [D]o you have an opinion as to the number of ... blows that that body underwent to cause [the injuries]? ...

A. That would be very difficult to estimate with any degree of accuracy, but I think we would be safe in saying it would have to be hundreds.

Q. Hundreds?

A. Yes ....

Q. I’ll show you [a photograph of the victim’s arm] and ask you whether or not, in your opinion, that exhibit reflects what could be called or determined to be a defensive wound.

A. This would be consistent with a defense-type wound, if the subject were attacked with a stick, or a small round blunt object....

Q. I’ll show you [a piece of a fishing rod] and ask you if someone used an instrument such as that exhibit on the body of a small child, as it appears in the State’s exhibit that you testified to, as to whether or not the injuries reflected in those exhibits would be consistent with having been beaten with an instrument such as [this].

A. Yes. This could have produced some of that injury.

Q. Would you state whether or not these injuries you’ve discussed or testified to, would be consistent with having been beaten with a belt.

A. With a belt? Yes, quite possibly.

Q. I’ll show you [three belts] and ask you whether or not the injuries sustained by Christine Montelongo would have been consistent with having been beaten by any or all of these exhibits.

A. These instruments could produce this type of injury, yes.

Q. Could the buckle on those exhibits— would the type of buckle be consistent with hitting a small child as reflected in those exhibits.

A. Some of this injury yes, could reflect that. These injuries here on the thigh — these curvalinear, [sic] irregular type things could be consistent with that ....

Q. Do you feel from your experience as a forensic pathologist and by virtue of your examination and your autopsy that there was any way that these wounds could have been self-inflicted by Christine Montelongo?

A. Self-inflicted? Absolutely not. This was a battered child.

Q. [Would the victim’s loss of blood] affect her physical condition to the extent that she would possibly fall down or not have as much strength to walk around as a normal child?

A. Yes, that’s correct, because the bruises indicate that they occurred over a period of time. Now as the beatings start, the subject begins to lose blood, and then loses more blood and the blood volume goes down and the subject becomes weak ... and giddy and pale

Q. [Would the victim’s wounds] cause a small child to regurgitate or vomit?

A. Absolutely.

Q. And why would that occur?

A. [B]ecause of this severe trauma. We see this occur many times as people are nearing death .... The body has lost a significant amount of blood volume, is having trouble maintaining its blood pressure .... [W]e have a child who eats a meal ... who can’t spare any extra blood going into the gastron-intestinal tract to aid her to relate to the problems of the process of digestion. So what does the stomach do? The body, in its wisdom, solves this problem by getting rid of the food.

Q. [W]ould you state whether or not it would be unusual for that child to be unable to hold liquid in its bladder, would it cause it to possibly urinate more so than a normal child?

A. This is part of the overall problem. This child had been beaten to the extent where it is dying and it does not have enough blood volume, and all of these things are likely to happen: having loss of control of its bowels; loss of control of her bladder; stagger around; fall down; acting incoherently. All these things — I would not be surprised that all or any of these things happened over this period of time that the wounds indicate the number of days that these beatings occurred.

Appellant’s confession, while not stating with what the victim was hit, comports with the medical examiner’s testimony about the duration of the beatings administered the victim; its report of the victim's behavior was in turn corroborated by the symptoms of blood-loss described by Rupp:

On Friday, 5-13-77, Vince came home from work around 4:00 PM. I told Vince about the trouble I had had with Christine not minding me. Vince took Christine into the girl’s [sic] bedroom. He first talked to her and then he spanked her. She was allowed to come out of her room, but at supper she wouldn’t eat, so she was sent to bed about 8:30 PM. On Saturday, 5-14-77, the girls were up and had eaten breakfast by the time Vince got up. That afternoon while we were having lunch, Christina had refused to eat, she and the other girls eat at a small childs’ table. Christina came up and tipped the table over and made a big mess. She then started walking around and had urinated on the carpet. At this, Vince took her into the back bedroom and spanked her. Vince yelled alot. [sic] After this spanking, Christina’s bottom started to bleed. On Sunday, 5-15-77, Vince and I had an argument. I went on to church by myself. Vince stayed at home with the kids. I returned from church at approx. 12:30 PM. Christina hadn’t slept well the night before, so when I got home, Christina was dozing on the couch. That afternoon Christina was throwing fits. She kept dropping to the floor, acting up. I spanked her several times, but I was too tired, so Vince finished spanking her. Her bottom started to bleed a little. On Monday, 5-16-77, Vince did not go to work. When Christina got up, we noticed she had wet the bed. We got her up and cleaned her off and let her run around without any clothes on. Later on that day I gave Christina a few licks for urinating on the carpet again and later she got another spanking from Vince for not eating her food. Vince was real mad, that’s when he hit her with his fist on the rear end. We gave her water and juices because she wouldn’t eat her food. On Tuesday, 5-17-77, Christina got up and had breakfast and later had a good lunch. Vince wanted all the girls to go with him to the bank but Christina didn’t want to go. She just kept falling to the floor saying she didn't want to go. Vince took Sandra and Priscilla with him and when he came back, he brought Christina an ice-cream sandwich. Christina took the ice-cream after not wanting to and started eating on the paper. Vince took the ice-cream away and I cleaned her face up. Vince took her to the bathroom and told her to use the toilet but she wouldn’t. After a while we tried to get her to use our bathroom but again she refused. When she came out she kept falling to the floor. Vince thought Christina was just playing so he spanked her again. I could see something coming out of her nose. I told Vince and he stopped spanking her. He laid her down on a sheet I had lain [sic] down on the floor in our bedroom. I didn’t know what to do. I told Vince to give her mouth to mouth but Christina just kept vomiting up something. I tried to call my paster [sic] but I couldn’t find him. Vince tried mouth to mouth again but Christina did not respond. I called my sister to come over. When she got there I just told her to take Sandra and Priscilla with her. To take some clothes for the baby and take care of them too. She asked me what was wrong, but I just told her to leave. I knew she was dead. Vince then called the police.

Other evidence further corroborated the extended and violent nature of the beatings which led to the death of the victim: several pairs of child’s panties were found which were stained with blood; flecks of discoloration which appeared to be bloodstains were found on several walls and even on the ceiling of the apartment—sample paint chips from the flecked areas proved to contain blood; extensive bloodstains were found on the toilet seat and bedding used by the victim and her sister; blood was found on at least two of the three belts seized at the apartment and human blood was found on the piece of a fishing rod found in the closet of the master bedroom.

The sister of the victim also testified, stating that she had seen appellant beat the victim with a paddle and with a belt on the day of her death.

The jury was charged both upon the theory that appellant was the actor who directly caused the victim’s death and upon the law of parties. The evidence was ample to support the verdict under either theory-

The ground of error is overruled.

Appellant also contends the court erred in overruling her motion to suppress her confession, stating that the confession was not given voluntarily, but had been coerced.

One reason appellant gives for claiming involuntariness is her testimony that she had been persuaded to sign the statement by a man claiming to be a chaplain who was in fact a police sergeant. The court, as sole judge of the credibility of the witnesses at the Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, hearing, Vigneault v. State, 600 S.W.2d 318, 329 (Tex.Cr.App.1980), was entitled to reject that contention, which was disputed by the testimony of police officers, and did so explicitly in its findings of fact.

The court also understandably rejected appellant’s twin contentions, to which she testified at the hearing, that she had not read the typewritten statement before signing it and that, having read it, she had requested that certain inculpatory statements be removed—and their removal had been agreed to by police sergeant Alvarado, who had presented the statement to appellant for her signature. Also rejected was appellant’s claim, denied by Alvarado, that he had threatened appellant by telling her she would not be transferred to the county jail unless she signed the statement.

The penultimate contention with respect to the confession is that, by refusing when first asked to sign the statement, appellant had invoked her right to silence and should not have been subjected to further questioning or requests to sign. Once again, appellant’s version was contradicted by the testimony of the police officers involved, who stated that, when appellant had been presented with a typed copy of her statement, she had replied that she was not sure if she wanted to sign it, and that she wanted to do what was right. Alvarado returned about an hour later and asked again whether appellant wanted to sign the statement, and she said she did. The police testimony shows no refusal by appellant to sign the confession and no invocation of her right to silence. It was the court’s prerogative to believe the testimony. Vigneault v. State, supra.

Finally, although appellant does not directly raise the point and does not rely upon Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as authority, we note that, in her discussion of the contentions discussed, appellant mentions that she was visited by an attorney after she had given her statement, but before she had signed the typewritten copy.

In Edwards, supra, the rule is stated that:

when an accused has invoked [the] right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that [s]he responded to further police-initiated custodial interrogation.... [A]n accused ... having expressed [the] desire to deal with the police only through counsel, is not subject to further interrogation ... until counsel has been made available ... unless the accused [her]self initiates further communication, exchanges, or conversations with the police. 451 U.S. at 484-485, 101 S.Ct. at 1884-1885.

The question suggested by appellant’s narrative is whether her discussion with the attorney amounted to an invocation of the right to counsel.

The attorney had been requested to visit appellant, and her husband, by a member of appellant’s church. Nothing in the record indicated that appellant desired or requested legal counsel.

The attorney testified that he had told appellant and the police officers that his advice was that she make no further statement, but we hold that, absent some reasonably clear indication from the accused of a wish to adopt such unsolicited advice or to seek further counsel rather than to continue interrogation, the protection against continued interrogation granted to an accused who affirmatively requests counsel pursuant to the rule of Edwards does not extend to an accused who receives unsolicited advice at an unrequested meeting with an attorney.

The ground of error is overruled.

Appellant further contends that the court erred in overruling her request that the jury be charged upon the lesser included offenses of aggravated assault and criminally negligent homicide.

Appellant's confession would seem to raise the possibility that appellant acted without knowledge or intent that her acts would lead to the victim's death. The State’s contention that there was no evidence that appellant ought to have been aware that a substantial and unjustifiable risk would result from her conduct would, if pursued to its logical conclusion, lead to the inference that no mens rea whatever had been proved, and we do not accept that contention given the evidence referred to ante. But even assuming that appellant would have been entitled to a charge upon criminally negligent homicide as an alternative to murder had murder been the only offense alleged and charged, we must take into account the other offensive theories presented to the jury in the instant case.

Appellant was indicted for murder under two different theories, encompassing violations under V.T.C.A., Penal code, Secs. 19.-02(a)(1) and 19.02(a)(2). The jury was charged upon each of these allegations, both under the theory that appellant was the person who committed the acts alleged, and under the law of parties on the theory that appellant’s husband had actually committed the acts alleged. The indictment also alleged, under two different theories, that appellant had committed the offense of injury to a child. The jury was charged upon both of these allegations, both upon the theory that appellant herself had caused the injury and upon the theory that she had been a party to her husband’s causing them.

The charge requested by appellant upon criminally negligent homicide would have authorized a verdict of guilty of that offense if the jury had found that appellant (whether directly or as a party) caused, by criminal negligence, the death of the victim alleged in the indictment. The charge given the jury authorized a finding of guilty of injury to a child if the jury found that appellant (whether directly or as a party) caused, by criminal negligence, serious bodily injury (which includes death, see V.T. C.A., Penal Code, (Sec. 1.07(a)[34]) to the victim alleged in the indictment, and that the victim was a child 14 years of age or younger. The evidence was undisputed in this cause that the victim was a child four years old at the time of her death. If appellant was guilty of criminal negligence in causing the death of the victim, she was perforce guilty of injury to a child. The jury was not left with only the choice of finding her guilty of murder or acquitting her; appellant’s interest in permitting the finding of a lesser crime based upon lesser culpability was fully protected by the charge given the jury.

Similarly, the requested charge upon aggravated assault was pre-empted by the instruction upon intentional injury to a child, which comprises the same elements with the addition of the undisputed element of the age of the victim.

We hold, then, that under the facts of this case, where a charge is requested upon a lesser included offense, and a lesser non-included offense authorized by the indictment is charged which differs from the included offense only by the addition of an uncontested element or elements the proof of which is not in dispute, then the lesser included offense need not be charged.

The grounds of error are overruled.

Appellant further contends that the court erred in permitting the introduction, over objection, of the commission by appellant of an extraneous offense.

The victim’s sister testified that appellant had placed her, the sister, in hot water, burning her buttocks. Photographs depicting the burns were admitted, as was testimony by the attending physician describing the wounds and their serious nature.

Appellant’s confession could give rise to the inference that appellant’s acts toward the children were undertaken to discipline them, and that there was no intent on appellant’s part to do serious bodily injury. The burning of the victim’s sister provided the jury with strong circumstantial evidence to rebut that inference and to show that appellant did intend to injure. See Albrecht v. State, 486 S.W.2d 97, 102-103 (Tex.Cr.App.1972).

The ground of error is overruled.

Appellant also contends the court erred in overruling her motion for mistrial when the prosecutor referred, during the punishment phase, to the fact that her husband was in prison at the time of the trial.

We note that no objection was raised until the question of how long appellant’s husband had been in prison was asked:

Q. Are you saying your husband did all of this and you didn’t have anything to do with it?

A. Yes, sir.

Q. Well, why didn’t he testify for you if you subpoenaed him?

A. I don’t know, sir.

Q. Didn’t you subpoena him in this case?

A. I don’t know, sir.

Q. Beg your pardon?

A. I don’t know.

Q. You don’t know.

A. I don’t know why he didn’t testify. I can’t answer that.

Q. Are you still afraid of him?

A. In what sense?

Q. In the sense that you said you were afraid of him, a few minutes ago.

A. How can I be?

Q. What do you mean by that?

A. He’s in prison.

Q. Didn’t you have occasion to visit with him, since you’ve been here?

A. Yes, sir.

Q. You weren’t afraid of him then.

A. No.

Q. Did you tell him that he had been subpoenaed to testify in this case?

A. No. He already knew.

Q. He already knew?

A. I guess.

Q. Then why didn’t he come in here and testify before these people and tell them that he alone beat these little children to death and you didn’t have anything to do with it. Why didn’t he do that?

A. I don’t know, sir_

Where did you say your husband was? d

Sir? <

Where did you say your husband is at this time? d*

Prison. <d

Which way — strike that. Which one? Which unit? d*

Coke Unit. <¡

Is that a unit of the Texas Department of Corrections? d

Yes, sir. <]

How long has he been in that prison? d

MR. LAWRENCE: Your Honor, I’m going to object to this testimony as being completely irrelevant and as being prejudicial. <d

THE COURT: Sustain the objection.
MR. LAWRENCE: Ask that the jury be instructed to disregard the last question.
THE COURT: As to the last question, the jury is so instructed.
MR. LAWRENCE: We ask for a mistrial.
THE COURT: Deny your motion for mistrial.
MR. LAWRENCE: Note our exception. ...

Q. (By Mr. Mobley) Will you tell us why your husband is in the penitentiary at this time, Mrs. Montelongo.

MR. LAWRENCE: Your Honor, again I’m going to object. He’s going back into an area is [sic] highly prejudicial and immaterial in this case.
THE COURT: Mr. Mobley, I’m going to sustain the objection and caution you, sir, that you might be getting us close to a mistrial. I’m going to sustain the objection and instruct the jury to disregard the question.
MR. LAWRENCE: Your Honor, at this time we would ask for a mistrial.
THE COURT: The Court will deny your Motion for Mistrial, and will once again instruct the jury to disregard the question.
MR. LAWRENCE: Note our exception.

Improper admission of evidence does not constitute reversible error if the same facts were proved by evidence not objected to. Brasfield v. State, 600 S.W.2d 288, 296 (Tex.Cr.App.1980). Further, an objection to the introduction of evidence must be urged at the earliest opportunity. We also note that the improper asking of a question can be cured by the court’s proper instruction to disregard — an instruction given here twice, and in strong terms, when the State attempted to raise the subject after it had first been broached and abandoned. See Maddox v. State, 591 S.W.2d 898, 903-904 (Tex.Cr.App.1979). Finally, we note that, far from being inherently prejudicial to appellant, the fact of her husband’s conviction fully comported with her own testimony on punishment that he, and not she, had been solely responsible for the beatings administered to the victim and her sister.

The ground of error is overruled.

Appellant also contends that “the court erred in not granting a mistrial when heresay [sic] testimony was heard by the jury.” Appellant refers to the testimony of Charles Conklin, the physician who treated the victim’s sister for second and third degree burns to her buttocks:

Q. And were you able to determine any type of a history upon your examination, from your questioning of Sandra, which would indicate how she received these injuries?

A. We felt like we found out what caused the burns.

Q. Did — are these burns or injuries — are any of those wounds consistent with being hit with a hand or a belt or any type of fishing rod?

A. No, sir.

Q. And how did she tell you she received those particular injuries?

A. She—

MR. LAWRENCE: Your Honor, I’m going to object to any hearsay testimony as to what Sandra may have said.
THE COURT: Sustain the objection.

Q. (By Mr. Mobley) From your investigation, from her history given, would you just state whether or not you were able to determine how the injuries occurred.

A. Yes, sir.

Q. And how did it occur from the history you were given?

MR. LAWRENCE: Your Honor, I’m going to object—
THE COURT: That’s the same question, Mr. Mobley. Sustain the objection. ...

Q. And will you state whether or not, Dr. Conklin, that these injuries which you’ve described are consistent with a person being placed in boiling hot water.

MR. LAWRENCE: Your Honor, I’m going to object to that. We’re getting back to —
THE COURT: Sustain the objection.
MR. LAWRENCE: We would ask that the jury be instructed to disregard it.
THE COURT: The jury is instructed to disregard.
MR. LAWRENCE: We would ask for a mistrial at this time.
THE COURT: Overrule and deny your motion for mistrial.
MR. LAWRENCE: Note our exception.
MR. MOBLEY: Before I ask any further question, Your Honor, may I have permission to approach the Bench?
THE COURT: Yes.
(The following discussion was held at the Bench out of the hearing of the jury:)
MR. MOBLEY: I’m sorry. I thought he could say that. This is a doctor. He could state what his treatment would be consistent with.
MR. LAWRENCE: The doctor testified on the other hearing — Never mind. I don’t want to open the door.

We note that the sister later testified that she had been placed in hot water. The doctor’s expert opinion that such treatment would have been consistent with the wounds would have been admissible as expert opinion. That the court, in an abundance of caution, chose not to admit such evidence — at least before it had been linked up with non-hearsay testimony that the incident had in fact occurred — does not vitiate the non-hearsay nature of the evidence called for by the prosecutor’s last question. That he had earlier twice called for hearsay testimony on the same subject is of no moment, for each time appellant was granted all the relief requested. Reese v. State, 581 S.W.2d 638 (Tex.Cr.App.1976); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972).

The ground of error is overruled.

Appellant contends finally that the court erred in admitting the fruits of the search of appellant’s residence and the consent form signed by appellant prior to the search.

Appellant’s contention is based upon the assertion that her testimony — that she neither read the consent form nor had it read to her before signing it, and that its contents were never made known to her, but she was simply told it was to be signed— was uncontradicted. It is true, as appellant asserts, that no evidence was offered to contradict that testimony at the hearing held outside the presence of the jury when appellant for the first time announced that the consent would be contested. It is also true, however, as the State asserts, that Alvarado had already testified before the jury to a version of the events which contradicted each of appellant’s assertions. Upon this issue, as upon the issue of volun-tariness of the confession, the court was the sole judge of the credibility of the witnesses. Vigneault v. State, supra. There was ample evidence to support the court’s conclusion that the permission to search was voluntarily given.

The ground of error is overruled.

The judgment is affirmed.

CLINTON, J., concurs in the result.

TEAGUE, Judge,

dissenting.

There are two main issues in this case regarding the admissibility of the written confession of Rose Marie Montelongo, appellant, namely: (1) Did appellant invoke her right to have the assistance of counsel prior to giving the written confession, and (2) did the State establish that she waived her right to counsel, after she invoked her right to counsel, if she did?

The majority holds: “[Ajbsent some reasonably clear indication from the accused of a wish to adopt such unsolicited advice or to seek further counsel rather than to continue interrogation, the protection against continued interrogation granted to the rule of Edwards does not extend to an accused who receives unsolicited advice at an unrequested meeting with an attorney.” I disagree.

Where an accused has been given the opportunity to consult with an attorney, and does so, in the face of non-rejection of the attorney, does this constitute an implicit invocation of the right to counsel? I believe it does.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court held in part that “an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Also see Phifer v. State, 651 S.W.2d 774 (Tex.Cr.App.1983); Coleman v. State, 646 S.W.2d 937 (Tex.Cr.App.1983); Wilkerson v. State, 657 S.W.2d 784 (Tex.Cr.App.1983).

To hold that appellant did not in this instance invoke her right to counsel actually ignores what happened in this cause, and exhibits a total ignorance of the real world that exists beyond the summit where this Court’s members are stationed. See, however, the paper entitled “The Midnight Phone Call — What To Do Next?,” by Pol-land and Robertson, delivered at a criminal law institute sponsored by the State Bar which was held in Dallas in September, 1982, and the paper entitled “The crucial First Steps — Initial Contact, Immediate Action, Deciding whether To Take The Case,” by Forche, delivered at another State Bar sponsored criminal law institute held in Harlingen in March, 1977.

The facts that relate to the taking of appellant’s confession reflect that on May 17, 1977, appellant and her husband, Vicente, see Montelongo v. State, 644 S.W.2d 710 (Tex.Cr.App.1983), were arrested and charged with committing the murder of Christine Montelongo, Vicente’s daughter. They were booked into the Corpus Christi police station jail.

The record reflects that Gilbert R. Lazo and U.B. Alvarado were Corpus Christi police officers assigned to work the case against appellant and her husband. After arrest, appellant gave Lazo an oral confession, who wrote the confession in long hand, and thereafter left appellant’s presence to take what he had written down to a police typist in order to have the oral confession converted into a typed confession, which occurred. However, notwithstanding that Lazo then had a typed confession, that only needed appellant’s signature on it to make it a valid confession, he never returned to where appellant was then situated in the jail. This, of course, does not make any sense until one considers what happened between the time Lazo left appellant’s presence to go to the police typist and before he could get back to appellant with the typed confession.

The transcription of a pretrial hearing reflects that on the same day, Clyde Jackson, a licensed attorney at law, went to the Corpus Christi police station to visit appellant and her husband. Jackson went there at the behest of Eugene Seaman, who appears by the record of appeal to have been a member of the same church that appellant and her husband had attended. At the police station, Jackson came into contact with both Lazo and Alvarado. For reasons not clearly reflected by the record, Jackson told them he was not then representing appellant.

Jackson met, consulted with, and counseled appellant, after which he told her “that I would have to get someone else to represent her ‘[because I had at that time a lot of other cases going, and I just didn’t feel that I could handle the case].’ But I told her that she should not sign any statement till the next day, so that I could get an attorney to represent her.” Jackson then left appellant’s presence after which he again came into contact with Lazo and Alvarado. Jackson testified that “Seems like I had asked them had she signed a statement and they said she hadn’t. I think after I got through with them, I told them that I didn’t think she ought to sign a statement that night or some words to that effect.” Jackson also testified that the reason he made these statements to Lazo and Alvarado was “to protect her rights until she could get the advice of an attorney that was [sic] representing her.”

Alvarado testified that Jackson’s statements meant nothing to him because “I would have gone up there and interviewed her anyway. I would wait for the Defendant to tell me himself or herself that she specifically did not want to have anything to do with me, or whatever. [If that occurred,] I would have terminated the interview.”

Notwithstanding Alvarado’s statement, and further notwithstanding the fact that by that time Lazo had had the oral confession reduced to writing, no efforts were made at that time, either by Lazo or Alvarado, to get appellant to sign the typed confession.

But all of this was to change the next morning. Alvarado testified that after he came to work the next morning he found appellant’s unsigned typed statement in the case file. He then took it to where appellant was situated in the jail. When Alvarado asked appellant if she wanted to sign the confession, she responded “that she wasn’t sure; that she wanted to do what was right.” Alvarado “then told her to go ahead and think about it, and I left her there for awhile.” In approximately one hour, Alvarado returned, after which appellant signed the confession.

Did appellant invoke her right to have the assistance of counsel? The majority answers the question in the negative. I disagree.

First, I do not believe that anyone could deny that appellant and Jackson established the attorney-client relationship. See Vol. 7 Tex.Jur.3rd, Sec. 49, at page 391. The record clearly reflects that Jackson’s visit with appellant occurred solely and only because he was a licensed attorney at law. Although the record does not reflect just exactly how long Jackson visited appellant, it is safe to assume that he spent a reasonable period of time with her. I believe that the majority’s characterizing Jackson’s visit with appellant as amounting to nothing more than her receiving “unsolicited advice” exhibits a lack of understanding of the role that an attorney at law plays in our present day society when he is summoned to the jail house to consult with an accused person.

I believe that at a minimum, when an accused does not reject the services of a licensed attorney, and receives from him advice and consultation, the accused has implicitly invoked his right to the assistance of counsel. This is conduct which manifests itself with an intent to deal with the police only with the assistance of counsel. My research has yet to reveal where any court has ever held that an accused person’s invocation of the right to the assistance of counsel must be expressed, as the majority implies, rather than implied, as here.

Because it was established that appellant invoked her right to the assistance of counsel, it was then incumbent upon the prosecution to demonstrate and establish, if it could, that appellant affirmatively waived her right to the assistance of counsel. In this, the prosecution failed. See Wilkerson v. State, supra. Also see Griffin v. State, 665 S.W.2d 762 (Tex.Cr.App.1983).

To the majority’s holding that appellant never invoked her right to the assistance of counsel, I respectfully dissent.

      . The trial was held in Walker County on a change of venue from Nueces County.

      . The belts and fishing rod were seized at the apartment where appellant, her husband and co-actor, and their children had resided.

      . The officers could not state with absolute certainty that no Sergeant Smith had visited with appellant, but he was not among her known visitors, and most of the time she was in the presence of other officers or visitors during the critical period.

      . The statement had been made the previous night but not reduced to typing from the longhand notes of police Sergeant Lazo until it was too late, in Lazo’s judgment, to request that appellant sign it that night. Sergeant Alvarado, who had been busy with appellant’s husband and co-defendant during the making of the statement, but who had overall charge of the investigation, presented the typed copy to appellant the next day.

      . Sec. 19.02(a) provides in pertinent part:
      A person commits an offense if he:
      (1) intentionally or knowingly causes the death of an individual;
      (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual....

      . V.T.C.A., Penal Code, Sec. 7.01(a) provides: A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
      Sec. 7.02(a)(2) provides that a person is criminally responsible for an offense committed by the conduct of another if:
      acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense....

      . At the time of the offense, V.T.C.A., Penal Code, Sec. 22.04 provided:
      (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury, serious physical or mental deficiency or impairment, or deformity to a child who is 14 years of age or younger.
      (b) An offense under this section is a felony of the second degree.
      Appellant was alleged to have committed the offense intentionally and knowingly by one count of the indictment; another count alleged commission through criminal negligence.

      . In the instant case, even the murder allegations included the (unnecessary) allegations that the victim was a child. That the injury to a child allegations were therefore included within the actual (although not the necessary) allegations of murder is not necessary to our decision, however.


author: W.C. DAVIS, Judge.

text:
    Lee Leddrew SNIDER, Appellant, v. The STATE of Texas, Appellee.
    No. 68156.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.

      Russell D. Daves, Lubbock, for appellant.
    John T. Montford, Dist. Atty., and Jim B. Darnell, Asst. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of theft, found the enhancement allegation to be true, and assessed punishment at confinement for twenty years and a fine of five thousand dollars.

Appellant raises two grounds of error. The first alleges that, because it was outside the scope of the State’s search warrant and was the fruit of an illegal search and seizure, certain evidence was admitted erroneously. The second alleges that the evidence is insufficient to establish the identity of the property seized or the fair market value of the stolen property.

Appellant does not contest the validity of the search warrant used in the instant case. Rather, he says “The issue in this ground of error rests on the extent to which evidence seized during a search conducted under an admittedly valid search warrant is admissible, if it is not described in the warrant.”

At a hearing on appellant’s motion to suppress evidence, Detective Earl Rankin of the Lubbock Police Department testified that on May 7, 1979, he had obtained a warrant to search a residence, automobiles, and outbuildings located at 6213 23rd street in Lubbock, and persons occupying them. The warrant listed certain Citizen’s Band radio (CB) equipment that had been taken in a burglary.

Rankin said that on arriving at the premises he saw a Speedaire air compressor sitting in the front yard. Because of the homemade grille and basket attached to the air compressor, Rankin recognized it as the one taken in a burglary at the Resthaven Funeral Home and Memorial Park in February, 1979. The compressor was sitting in the front yard and was visible even from the street.

Rankin knew about the Resthaven burglary and was familiar with the items that had been taken because he had done the follow-up investigation of that offense. Rankin had spoken with Sam McWhorter, an employee of the Funeral Home, and McWhorter had described the homemade guard and basket.

The search of a shed located on appellant’s premises also turned up several other items that Rankin recognized as items taken in the Resthaven burglary, including a Gillette AC generator. A dune buggy that another officer recognized as an item stolen in a yet another theft was also seized in the search of the shed. No CB equipment was found.

Rankin testified that, based on the information he knew about the Resthaven burglary — information he had known before he searched appellant’s premises, he recognized the compressor as the one taken in that burglary. He had also known that a Gillette AC generator had been taken, and he saw a Gillette AC generator in the shed, along with several other items he recognized as having been stolen from Restha-ven — including a weed-eater marked “Res-thaven Funeral Home.” The source of the items was confirmed by matching the serial and model numbers and descriptions on the offense reports from the Resthaven burglary and from other thefts and burglaries with the equipment found in the shed. Rankin also testified that the shed in which most of the stolen property was found was cluttered with all kinds of car parts, tools and junk. On cross examination, Rankin said that he had taken anything that had a serial number or a model number that he might be able to tie into a burglary.

Appellant contends that “all items included in State’s pretrial exhibit number one are fruits of an illegal search and the admission into evidence of the Gillette AC generator, State’s exhibit number three, constitutes reversible error.” Appellant was indicted for theft of the compressor and the generator. Of the State’s pretrial exhibits, only the compressor, the generator, the weed eater, and a chain hoist were identified at trial as property stolen from Resthaven and discovered on appellant’s premises. It is to these items that we address our discussion of appellant’s contention that these items were outside the scope of the search warrant and should have been suppressed.

Before the facts can be examined to determine whether a search exceeded the scope of the warrant we must determine whether the scope of the search is contested because of the location where the items were seized, or by the claim that the items seized were not described in the warrant or otherwise reasonably connected to the search. If the former contention is raised the officers must show that they were properly in the place where the item was found. That can be done on the basis of the warrant, as in the instant case, or under the authority of one of the other exceptions to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The latter contention was made in the instant case.

The items involved in the instant case, although they are not described in the warrant, need not be shown to have been related to the investigation for which the warrant issued because they were in plain view while the officers were legally upon the premises under authority of the warrant. Appellant does not contest the validity of that warrant.

In Coolidge v. New Hampshire, supra, the United States Supreme Court discussed the plain view exception to the warrant requirement and the three conditions that must be met to invoke that doctrine: The initial intrusion must be proper so that the police have a right to be where they are; the discovery of the evidence must be inadvertent; and it must be immediately apparent to the police that they have evidence before them. In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) the Supreme Court explained that what must be “immediately apparent” is probable cause, when they stated that the rule set forth in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) was applicable; “ ‘[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.’ ”

Our discussion ante makes it very clear that the police were validly upon the premises and that probable cause was immediately apparent. The very fact relied upon by appellant — that the items in the shed were found while the shed was being searched for other items, and that the instant evidence was not named in the warrant, demonstrates that their discovery was inadvertent.

Appellant contends that Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) and Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642,18 L.Ed.2d 782 (1967) control the instant case. Appellant also contends that a nexus need be shown between the criminal investigation undertaken, i.e., the search for CB equipment, and the items seized. Because the three requirements of plain view are met, no additional nexus to criminal activity need be shown. Plain view requirements are intended to supplant such a nexus. Further, as the Supreme Court noted in Warden, supra, nexus is a probable cause requirement which is met automatically when the evidence seized is the fruit or instrumentality of a crime. See Warden, 387 U.S. at 307, 87 S.Ct. at 1650.

Apparently appellant confuses the need for a nexus when evidence connected to a crime — so called “mere evidence” — rather than fruits, instrumentalities or contraband, is seized, as in Warden, supra, with the scope of a search when fruits, instru-mentalities, or items of contraband are found in plain view, as in Coolidge, supra. The crux of the distinction is the “kind” of probable cause necessary in each instance.

A case involving plain view supplies the probable cause by meeting the “immediately apparent” requirement. Texas v. Brown, supra. That probable cause is similar to the nexus requirement spoken of in Warden, supra.

The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for “mere evidence” or for fruits, instrumentalities or contraband. There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior.

387 U.S. at 306-307, 87 S.Ct. at 1649-1650. (emphasis added)

Appellant also relies upon two Texas cases as authority for his contention that a nexus need be shown. Both Chambers v. State, 508 S.W.2d 348 (Tex.Cr.App.1974) and Phenix v. State, 488 S.W.2d 759 (Tex.Cr.App.1973) involved the seizure of evidence not described in the warrant present in eaeh ease. In both cases, this Court held that a nexus had in fact been shown between the evidence seized and the criminal activity which was the subject of the warrant. However, these cases did not involve the finding of fruits of offenses unrelated to the suspected offense which was the focus of the warrant. Harris v. United States, was overruled in Chimel v. California, supra. Appellant’s reliance on Harris is misplaced. The ground of error is overruled.

In his next ground of error, appellant challenges the sufficiency of the evidence to show.that the property seized from appellant’s premises was stolen from Resthaven.

Sam McWhorter, the park superintendent for Resthaven Memorial Park, testified that in February, 1979 several items were stolen from Resthaven, including a Spee-daire air compressor and a Gillette AC generator. McWhorter testified that the compressor had a homemade guard and basket that he had installed on it. He said that the generator had no unusual identifying feature, but that it was a Gillette generator. He said he recognized the generator as the one taken from Resthaven and had no reason to believe that it was not the same one. McWhorter also identified photographs of the items seized from appellant’s premises as those items stolen from Resthaven.

Detective Earl Rankin testified about the items taken in the Resthaven burglary and said that he recognized the compressor and generator seized from appellant’s premises as those taken in the Resthaven burglary. Rankin testified that the photographs admitted into evidence were pictures of the property he had seized from appellant’s property. He also said that the compressor had an identifying model number and that the generator had an identifying serial number, although he did not state whether the numbers on the Resthaven equipment had been recorded.

The evidence is ample to establish that the identity of the property as that stolen from Resthaven. See and cf. Bibbs v. State, 658 S.W.2d 618 (Tex.Cr.App.1983); Stoner v. State, 585 S.W.2d 750 (Tex.Cr.App.1979).

Next, appellant contends that the State did not prove the fair market value of the stolen property. Appellant argues that the State was bound to prove the fair market value of each item individually and that, therefore, proof that the aggregate value was $400 was insufficient to prove value.

Appellant’s reliance on Pena v. State, 422 S.W.2d 937 (Tex.Cr.App.1967) and Pitcock v. State, 367 S.W.2d 864 (Tex.Cr.App.1963) is misplaced. Those cases hold that where an indictment alleges theft of several items and alleges an aggregate value for those items, the State must prove that each of the items alleged is stolen, assuming those items are not of uniform value. Similarly, Riggs v. State, 561 S.W.2d 196 (Tex.Cr.App.1978), also cited by appellant, states that “ ‘when the only testimony as to total value states an amount including the value of items not alleged to have been stolen, there is in effect no evidence whatsoever that the value of the items so alleged was over the amount necessary to support the conviction.’ ” 561 S.W.2d at 197.

In the instant case, the indictment charges appellant with theft of a compressor and a generator, having an aggregate value of $200 or more, but less than $10,-000. McWhorter testified that he was familiar with the value of the compressor and generator. He stated that replacement cost was $500 for the compressor and $770 for the generator. He also said that their combined value, used, .was $400.

The State proved the aggregate fair market value of the property alleged to be stolen. See V.T.C.A., Penal Code Sec. 31.08(a)(1). The State also proved that both items alleged in the indictment were in fact stolen. When the State alleges an aggregate value, proof that every item alleged was stolen and proof either of the individual value of each item or of the aggregate value of all items is sufficient to support the verdict. Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); Wiley v. State, 632 S.W.2d 746 (Tex.Cr.App.1982); Anaya v. State, 507 S.W.2d 561 (Tex.Cr.App.1974); Price v. State, 493 S.W.2d 528 (Tex.Cr.App.1973). The ground of error is overruled.

The judgment is affirmed.

CLINTON, J., dissents to the first ground of error.


text:
    The STATE of Texas ex rel. Travis B. BRYAN, III, District Attorney, Brazos County, Relator, v. W.T. McDONALD, Jr., Judge, 85th Judicial District Court of Brazos County, Respondent.
    No. 69,212.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.
    Travis B. Bryan, III, Bryan, for relator.
    William W. Vance, Bryan, for respondent.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This cause seeks invocation of the original subject matter jurisdiction of the Court provided by Art. V., § 5, Tex. Const, and Article 4.04, V.A.C.C.P., and is denominated an application for writ of mandamus by the Petitioner.

The record establishes that on March 28, 1983, the Brazos County District Attorney (Petitioner) entered into a written plea agreement in Cause No. 14,489, with the defendant therein, Frances Harris, and her attorney. Under that agreement, the State was to recommend a sentence of six years confinement in exchange for the defendant’s plea of guilty; further, the State had agreed to dismiss three other unidentified cases pending against the accused.

On August 12,1983, the cause was called for trial before our Respondent. Defense counsel immediately announced:

“We are here based on the fact that the Court has informed us that there is a new proposed assessment of punishment in which shock probation will be considered, and Ms. Harris has agreed to that, understanding the fact that her conduct in the Texas Department of Corrections will be the final say as to whether she will actually get shock probation, but the Court would promise to consider it as part of this plea.
THE COURT: That is correct. * * * ”

Respondent proceeded to admonish the accused and explain to her the effect of waiving her constitutional rights. After Respondent informed Harris of her right to trial by jury, he asked if it was her desire to waive that right. The following occurred:

“MR. VANCE [Defense Counsel]: Frances, if it is still your desire to waive a jury trial, I will ask you to sign the application.
(Witness complied.)
MS. LALK [Prosecutor]: The State does not consent to waive trial by jury.[]
THE COURT: I don’t know whether the State has a right to trial by jury. This is real nice of you to wait until this morning to do this.
MS. LALK: I didn’t know until this morning there was a shock plea.
THE COURT: This is a good test case. I don’t know whether the State has a right to a trial by jury so I am going to proceed anyway, and we can see where we go from here.
The State having refused to consent to a trial by jury [sic] and the Court being of the opinion that perhaps the State is not entitled to a trial by jury in a plea situation — the Constitution provides that the accused has a trial by jury right and not the State — the court will consent to waive the trial by jury and we will proceed.”

Respondent did continue the plea hearing, but the prosecutor declined to offer the written plea agreement; it was admitted as a “Court’s Exhibit.” Respondent accepted the defendant’s plea, assessed her punishment and pronounced sentence at six years confinement.

Respondent immediately entered written judgment and sentence and filed it with the clerk on the same day, August 12, 1983.

Some two months and two weeks later, Petitioner filed this action directly with the Clerk of this Court on October 27, 1983. He alleged Respondent was “without authority to proceed to trial without securing a waiver of jury trial in compliance with Art. 1.13, V.A.C.C.P.” The relief requested by Petitioner is that we issue the writ of mandamus directing Respondent “to vacate the judgment and sentence entered in Cause Number 14,489, and further directing Respondent ... to set Cause Number 14,489 for jury trial.”

For the reasons stated in our opinion Turner v. McDonald, 676 S.W.2d 371 (Tex.Cr.App.1984), we agree with Petitioner that the accused’s statutory right to a trial before the court, sitting without a jury, is conditioned upon and limited by the State’s consent to waiver of trial by jury. Article 1.13, supra.

However, it is clear the State’s consent is not essential to the district court’s •power to decide criminal cases; in other words, the State’s consent is not jurisdictional. E.g., Ex parte Collier, 614 S.W.2d 429 (Tex.Cr.App.1981). See generally Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980) [wherein the jurisdiction of district courts is thoroughly analyzed]. Thus, neither the plea hearing nor the judgment entered in Cause No. 14,489, can be said to be void. Cf. Garcia v. Dial, supra.

A trial court is not authorized to set aside a valid judgment of conviction and order a new trial except on timely motion of the defendant. Articles 40.02, 40.03, 40.05, 41.01, V.A.C.C.P. and Art. V., § 26, Tex. Const. See also Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982) (Opinion on State’s Motion for Rehearing).

It is axiomatic that mandamus will not issue to compel Respondent to perform an act he has no authority to do. Cf. Garcia v. Dial, supra.

The relief sought is denied.

      . The record indicates the charge was "delivery of a controlled substance,” a first degree felony. Apparently, the "controlled substance" was methamphetamine.

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


author: ROBERTSON, Justice.

text:
    Donald Louis WESTERHOLT, Appellant, v. STATE of Texas, Appellee.
    No. A14-83-055CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Apr. 5, 1984.
    Discretionary Review Refused Oct. 17, 1984.
    Michael Charlton, Houston, for appellant.
    Timothy Taft, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

The conviction is for aggravated robbery. A previous conviction was utilized to enhance punishment. Questions before us concern the punishment assessed and the sufficiency of the evidence. We reverse.

In his second and third grounds of error appellant alleges fundamental error in the jury’s assessment of a fine of $82.00 in addition to confinement for 50 years. Appellant entered a plea of true to the previous conviction and the court instructed the jury to assess punishment at “not less than 15 years nor more than 99 years, or life; and in your discretion you may assess a fine not to exceed $10,000.00.” There was no objection to the charge and the matter is raised for the first time on appeal. In Bogany v. State, 661 S.W.2d 957, 959 (Tex.Crim.App.1983), a majority of the Court of Criminal Appeals held that a fine in addition to confinement was not authorized as punishment for a first degree felony conviction enhanced by a prior felony, and that a jury verdict assessing same rendered the verdict “void at its inception.” Consequently, they held the unauthorized fine could not be deleted by a reformation of the judgment. While we disagree with this holding, we are bound by it and, accordingly, sustain appellant’s contention.

In his first ground of error, appellant attacks the sufficiency of the evidence to prove the complainant was threatened and placed in fear of death or serious bodily injury. In support of his contention he candidly sets out the following in his brief:

The complainant, Robert McNinch, testified that he was employed as a security officer for J.C. Penney in Houston. On the date of the offense, he saw the appellant and a girl steal some shoes from J.C. Penney. He testified that he followed the two to the J.C. Penney parking lot and two other security officers were screaming as if they were afraid of something. One of the other officers was screaming “He has a gun.” McNinch approached the passenger side of the car and saw the appellant with a chain in his right hand and a gun in his left hand.
Q. It appeared to be real?
A. Yes, sir.
Q. At that time, were you in fear of serious bodily injury or death?
A. Yes, sir.
Q. Did you know what would happen or did anything go through your mind, as far as what might happen if something were to go wrong?
A. I felt if I had tried to get closer to the car I didn’t know what would happen?.
Q. You think you might have been shot?
A. Very possibly.

As we understand it, appellant’s argument is that the evidence is not strong enough “to prove that the threat of imminent bodily injury and death [was] communicated to McNinch by the use of a deadly weapon.” We disagree. The weight to be given the evidence is for the jury. The evidence quoted above is sufficient in law to uphold a jury finding of a threat of serious bodily injury or death to have been made. There is sufficient evidence to support the conviction. This point of error is overruled.

The judgment is reversed and remanded for a new trial.


text:
    Mack Alex WARREN, Appellant, v. STATE of Texas, Appellee.
    No. B14-82-790-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 6, 1983.
    Review Granted Feb. 29, 1984.

      Candelerio Elizondo, Michael Charlton, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
   OPINION

ROBERTSON, Justice.

The jury rejected appellant’s not guilty plea to the offense of felony theft and found he had been twice previously convicted as alleged; his punishment was life imprisonment. In this appeal, he contests the sufficiency of the evidence to prove ownership and value of the property as alleged and contends enhancement of the punishment is unauthorized because the enhancement paragraphs were never read to the jury nor was appellant’s plea to them received. We affirm.

Viewing the evidence in the light most favorable to the verdict, it shows that at approximately 7:30 a.m. on the date alleged the witness Shipley observed two black males loading “something” into the back of a red four-wheel drive truck on the railroad siding across the street from his place of business. His attention was caught by the “loud metal clanging noises” coming from where they were loading the truck. Approximately thirty minutes later, the witness observed the truck had been driven about a hundred yards across a field, had become stuck in the mud, and two black males were outside the truck “unloading the truck very haphazardly.” Being suspicious, he called the police who arrived and summoned the railroad authorities. The witness Haley, terminal superintendent for the Southern Pacific Transportation Company, identified the steel metal plates both inside and outside the truck as the type plates the railroad was using in rebuilding a portion of their rail line in the area. The plates had been hauled in and stored at a location on the railroad siding “roughly two hundred fifty feet” from where the truck was stuck in the mud. Two hundred ninety-five of these steel plates valued at $4,206.70 and ten “rail anchors” were recovered from inside and outside the truck. Appellant and his co-defendant, Richard Lee Edwards, were arrested at the scene. Appellant did not testify or offer any evidence other than some hospital records showing an injury he had sustained. The court charged the jury on circumstantial evidence. We find the evidence sufficient to sustain the jury verdict.

In his first ground of error, however, appellant contends the evidence is insufficient to sustain the allegation that the witness Haley was the owner of the property, citing York v. State, 511 S.W.2d 517 (Tex.Crim.App.1974). He argues his guilt can be sustained only upon “the presumption or inference of guilt based upon recent possession of stolen property” and since the witness Haley could not positively identify the plates found in his possession as coming from the construction site or from Southern Pacific, the evidence is insufficient to sustain the verdict. We disagree. As shown by the evidence recited, a witness observed two black males loading metal objects into a truck; soon thereafter, a short distance away, he saw two black males unloading the truck. When Haley, the railroad employee having control of the railroad property (including the metal plates), arrived on the scene he identified the plates as the same kind being used in their rail line rebuilding. We do not view this as a case where the sufficiency of the evidence depends upon “the presumption or inference of guilt based upon recent possession of stolen property.” We find the evidence sufficient to sustain the allegation that Haley was the owner of the property found in the possession of appellant and his codefendant. His first ground of error is overruled.

In his second ground of error, appellant contends the trial court erred in admitting Haley’s testimony regarding the value of the steel plates “because of its hearsay nature.” On direct examination Haley testified without objection that the,, value of each plate was $14.26 for a total of $4,206.70. On cross-examination, it was developed that he got that price “through [the railroad company’s] cost department.” Appellant then objected. We agree with the state’s position that the matter is not reserved for our consideration because appellant’s objection came too late. Were we, however, to consider the ground of error we note that proof of value by hearsay is permissible. Esparza v. State, 367 S.W.2d 861 (Tex.Crim.App.1963). Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends the evidence is insufficient to sustain the allegation of value. Our above discussion disposes of this ground and it is overruled.

In his final ground of error, appellant contends the court erred in enhancing the punishment because the indictment’s allegations concerning his prior convictions were never read to the jury nor his plea thereto received. Following the receipt of the guilty verdict, a hearing was held before the court concerning the admissibility of some of the certified prison records. Following this hearing, the jury was returned to the courtroom and evidence was presented concerning appellant’s previous convictions after which both sides rested. The charge requiring the jury to believe beyond a reasonable doubt that appellant had been convicted as alleged was read to the jury, arguments were made, and the jury retired. The jury returned a verdict finding the allegations were true, after which the court discharged it. The appellant was sentenced and the following occurred:

Mr. Elizondo (defense counsel):
Your Honor, it’s come to my knowledge that the enhancement paragraphs were not read to the defendant prior to proceeding on the punishment phase. And for the record we would object to that and ask for a mistrial.
The Court: All right, that motion is overruled.

We doubt this matter is properly preserved for review. While the record sufficiently shows appellant’s contention to have been that the indictment was not read to the jury, there is no showing, in fact, of this non-occurrence. However, since the form judgment has stricken therefrom the recitation that the enhancement allegations were read to the jury, we will, nevertheless, address appellant’s contention.

Appellant relies upon those cases of the Court of Criminal Appeals beginning with Essary v. State, 53 Tex.Cr.R. 596, 111 S.W. 927 (1908), holding it mandatory to read the indictment to the jury and receive the accused’s plea thereto. This rule has been applied to the punishment phase in our bifurcated trial procedure. Trammell v. State, 445 S.W.2d 190 (Tex.Crim.App.1969). However, in all cases cited by appellant, the failure to read the indictment to the jury was discovered and called to the attention of the trial judge when the omission could be cured. In this case, the verdict had been received, the jury had been discharged and appellant had been sentenced before the matter was brought to the attention of the trial court. Under these circumstances we hold appellant waived the reading of the allegations of prior convictions. Even the Essary court recognized that “conduct and acts upon the part of the defendant” may “in fairness, be treated and regarded as a waiver.” Ill S.W. at 931. Appellant’s fourth ground of error is overruled.

The judgment is affirmed.