author: PER CURIAM. TEAGUE, Judge.

text:
    Robert JENKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 922-83.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 10, 1984.
    Carl E. Mallory, Arlington (court appointed on appeal only), for appellant.
    Tim Curry, Dist. Atty., C. Chris Marshall, Brent A. Carr, Michael Jergins and George Kredell, Asst. Dist. Attys., Port Worth, Robert Huttash, State’s Atty., Austin, for the State.
   PER CURIAM.

Dismissed as improvidently granted.

OPINION DISSENTING TO DISMISSAL OF APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

When a majority of this Court does something that is totally inconsistent with a prior decision or decisions of this Court, our presiding judge exclaims “Color Me Amazed”. See for example Aldrighetti v. State, 507 S.W.2d 770, 775 (Tex.Cr.App.1974); and Antunez v. State, 647 S.W.2d 649, 651 (Tex.Cr.App.1983). In light of what this Court did in Gauldin v. State, 683 S.W.2d 411 (Tex.Cr.App.1983), and what it does in this cause, I must echo the above statement.

In Gauldin v. State, supra, this Court handed down a unanimous opinion which sustained the contention of the defendant in that cause that a similar vehicular search as occurred in this cause was unlawful. Today, however, this Court does a 180 degree turnaround by implicitly approving the unpublished opinion that the Fort Worth Court of Appeals handed down in this cause, which I find, as to the law, is an almost xerox copy of the opinion that court handed down in Gauldin v. State, 632 S.W.2d 652 (Tex.App.—Ft.Worth 1982), which opinion, with one judge concurring in the result, was unanimously disapproved by this Court.

In upholding the warrantless search of appellant’s leased taxi-cab that occurred in this cause, the Fort Worth Court of Appeals, in an unpublished opinion, see Jenkins v. State, (Cause No. 2-81-308-CR, September 1, 1983), held “ ‘[ (1) ] that there were exigent circumstances which precluded the necessity of a search warrant [to search appellant’s leased taxi-cab], See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970),’ and ‘[(2)] that [t]he search [of the taxi-cab] was lawful because it was made as an incident to a lawful arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).’ ” (Pages 1 and 2 of its slip opinion). The principles of law announced in those cases are, however, inapplicable to the facts of this cause.

The facts in this cause reflect that as a result of a reported rape and robbery by a passenger of a taxi-cab, a police investigation ensued that resulted in the police learning that “the [physical] description [of the robber and rapist] fit Leon Jenkins [appellant], and that the license plate number [of the taxi-cab] was registered to a taxi-cab [belonging to Yellow Cab Company of Fort Worth].” Further investigation revealed that appellant had leased the taxicab bearing the reported license plate number from the Yellow Cab Company of Fort Worth for 24 hours and had been operating “Unit 38” at the time in question. Appellant was subsequently positively identified by the complainant as her robber and rapist.

Based upon the above information, a Lieutenant Place of the White Settlement Police Department went to a magistrate of Tarrant County and obtained a warrant for appellant’s arrest. Place, armed with the arrest warrant, the validity of which was not challenged on appeal by appellant, thereafter went to appellant’s central place of business, a Yellow Cab Company location in Fort Worth, where he went inside of a building and arrested appellant, who at that time was merely standing at a counter inside of the building. As previously observed, the record reflects that appellant had a 24-hour lease on the cab. The record also reflects that when appellant was arrested, his taxi cab was located next to a gasoline pump which was on the outside of the building, approximately 20 to 30 feet from the front door of the building, and on the inside of the company’s premises where vehicles were parked and kept.

Because the State has succinctly, but correctly, stated what happened after appellant was arrested by Place, I quote from its appellate brief: “While patting the Appellant down, Lt. Place, who was already aware that a pistol had been used to effectuate the offense, inquired [of appellant] as to whether [he, the appellant,] had a weapon. Appellant replied that there was a pistol on the front seat of the taxi-cab which he had been driving that day. After the pat-down, the Appellant was placed in handcuffs and warned of his rights. Lt. Place then proceeded to where the cab was located, at a gas pump 20 to 30 feet from the door of the building in which Appellant was arrested. He, [Place], removed a briefcase from the front seat of the taxi, opened it and found a .22 caliber pistol. Lt. Place subsequently took possession of the weapon and the Appellant’s other articles in the cab, all which were taken to the police property room.” (The above emphasized portions of the quoted material is my emphasis and not the State’s.)

The trial court overruled appellant’s motion to suppress the evidence that had been seized without a search warrant from appellant’s leased taxi-cab.

I first find that the court of appeals’ reliance upon Chambers v. Maroney, supra, as authority that there were exigent circumstances present in this cause to dispense with the warrant requirement, is misplaced.

As applied to searches of automobiles, whose drivers have been lawfully stopped, for fourth amendment purposes, the “exigent circumstances” doctrine was first recognized by the Supreme Court of the United States in its decision of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Carroll, however, essentially held that when the police have lawfully arrested the driver of a motor vehicle and have probable cause to believe that inside of the lawfully stopped vehicle there is contraband, fruits, of a crime, or instrumentalities that might have been used in the commission of a crime, then the police may conduct a search of the vehicle without a warrant. This exception to the warrant requirement was recognized because of the mobility of the vehicle, i.e., to require the police to go and obtain a warrant to search the motor vehicle might cause the police to lose forever the opportunity to search the vehicle.

Thus, the search of the interior of an automobile whose driver has been lawfully stopped, when there is probable cause to believe that there are fruits or instrumentalities of a crime therein, is not barred by constitutional protections against unreasonable searches and seizures. Chambers v. Maroney, supra.

The Supreme Court has now held, see United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), that for fourth amendment purposes, if the police lawfully stop, the driver of a motor vehicle and they then have probable cause to believe that contraband, weapons, or evidence of a crime is contained in closed containers located therein, they may search all of the containers located therein, provided the containers are large enough to be a depository for the item or items for which there was initially probable cause to search.

In this instance, however, appellant was not lawfully arrested when driving his leased taxi-cab; instead, he was arrested pursuant to an arrest warrant when he was merely standing next to a counter inside of a company building.

Thus, neither Chambers v. Maroney, supra, nor United States v. Ross, supra, are applicable to this cause.

I also find that the court of appeals’ reliance upon New York v. Belton, supra, is misplaced. In Belton, the Supreme Court considered only “the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.” Thus, Belton did not hold that an arresting officer has one free pass to search the automobile of the arrestee, regardless of the proximity of that automobile to the arrestee’s person, which is what I find the court of appeals to be holding.

The court of appeals also held that the warrantless seizure and search of the briefcase were justified as being incidental to a lawful arrest. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court held, for fourth amendment purposes, that when the police have lawfully arrested a person, they then have the right to conduct a search of the immediate area around him in order to prevent the arrestee from reaching for weapons or destructible evidence. Also see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); New York v. Belton, supra; United States v. Jones, 475 F.2d 723 (5th Cir.1973). However, in this instance, Place’s own testimony shows that the warrantless seizure and search of the brief case occurred inside of appellant’s leased taxi-cab, which was then located approximately 20 to 30 feet from the front door of the building, inside of which appellant had been arrested by Place. Thus, Place had no lawful right to seize and search the briefcase as an incident to appellant’s arrest.

I also find that the court of appeals implicitly found that the seizure and search of the closed briefcase was necessary because it was done so for the safety of the general public. However, the question Place asked appellant, about the whereabouts of a gun, was clearly investigatory and did not in any way relate to an objectively reasonable need to protect the general public from any immediate danger associated with the weapon. In short, there was no exigency requiring immediate action by Place to act without a warrant beyond the normal need to solve a serious crime.

I also find that appellant’s response to Place’s questioning does not become admissible evidence pursuant to Art. 38.22, Section 3(c), V.A.C.C.P., for the simple reason that appellant did not make an admission that the weapon that was found inside of the closed briefcase situated on the front seat of the taxi-cab was the weapon with which he committed the offenses. The record is clear that appellant never made any such admission to Place.

I also find that the decision of the court of appeals holds exactly just what this Court rejected in Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972), which was the following: “The arrest [of the defendant] was in no way connected with the automobile. To say that the police officers could have taken possession of the car and made a search, merely because the owner of the car had been arrested in his office for possession of dangerous drugs is to say that the arrest of a person, at any place, justifies the search of his home, or his car, regardless of where or why he was arrested.” Also see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Therefore, for all of the above reasons, I must respectfully dissent.


source: Caselaw Access Project

author: TEAGUE, Judge,

license: Public Domain

text:
    David BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 458-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 30, 1985.
    Charles M. Mallín, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Anthony I. Gonzales, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   TEAGUE, Judge,

dissenting.

On direct appeal to the El Paso Court of Appeals, as well as in the petition for discretionary review that has been filed in this cause, it was urged on behalf of David Brown, appellant, that the trial court erred in refusing to admit at the guilt stage of the trial the testimony of Dr. Harmon Hosch, an assistant professor of psychology at the University of Texas at El Paso. Had Dr. Hosch been permitted to testify, he would have testified, inter alia, to the subject of the unreliability of eyewitness identification under stressful situations, which subject has in recent times become a subject of much interest to persons interested in the field of criminal law. See, for example, People v. McDonald, 690 P.2d 709 (Supr.Calif.1984).

The record on appeal reflects that the State’s case against appellant was based solely upon eyewitness identification. There is no corroborating evidencg to connect or link appellant to the aggravated robbery that was committed by three unknown individuals on two employees of the Sun City Area Transit Shop, which is located in El Paso. Even after being shown photographs of suspected robbers, the two employees were unable to make positive identifications of the robbers. However, one of the employees, the only one of the two who testified in the jury’s presence, later identified appellant in a police conducted corporeal lineup as being one of his robbers. He also made an in court identification of appellant as being one of the three robbers.

The El Paso Court of Appeals, in an unpublished opinion, in affirming the trial court’s decision not to permit Dr. Hosch to testify, which decision was based solely upon the fact that Dr. Hosch had not personally interviewed the victims, gave the following reasons why Dr. Hosch’s testimony was inadmissible evidence: “Basically, this was an attempt to use an expert witness to attack credibility of two lay witnesses. That purpose is served by cross-examination of each witness and the issue of credibility is then left to the jury. The average juror should be able to decide whether a witness has made a proper identification without assistance from an expert witness. See: Holloway v. State, 613 S.W.2d 497 (Tex.Crim.App.1981).”

Because I find that the conclusions stated by the court of appeals, as well as its authority, are unacceptable, I am compelled to file a written dissenting opinion to this Court’s denying appellant leave to file his first motion for rehearing.

In Holloway, supra, this Court set forth the general rule, which states the'predicate that must be satisfied before expert witness testimony becomes admissible: “[W]hile a duly qualified expert witness may give his opinion based upon sufficient relevant facts, those facts must be either within his personal knowledge, or assumed from common or judicial knowledge, or established by evidence; [otherwise], his opinion is without value, and is inadmissible, if based upon facts and circumstances gleaned by him from ex-parte statements of third persons, and not established by legal evidence before a jury trying the ultimate issue[s] to which the opinion relates.” (Citations Omitted). (503). As easily seen, there is no requirement that before the expert witness may testify he must first personally interview a witness who testifies or is going to testify for the prosecution. Thus, Holloway, supra, does not support the reason the trial court expressly gave for excluding from the jury Dr. Hosch’s testimony.

In Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1984), one of the contentions that the defendant in that cause made was that testimony from the well known psychiatrist, Dr. Grigson, should not have been admitted because Dr. Grigson had not personally interviewed the defendant, and answered only hypothetical factual type questions. The Supreme Court rejected the contention, holding that it is permissible for the prosecution to present to the jury at a capital murder sentencing hearing testimony from a psychiatrist directed to the “probability” question, see Art. 37.071, V.A.C.C.P., even though the psychiatrist has never personally examined the defendant, and had formed conclusions based only upon hypothetical questions propounded by the prosecuting attorney. The Court, however, implicitly conditioned its holding upon the fact that the conclusion the psychiatrist states must be deduced by him from facts that are not disputed, or from facts given in evidence.

Thus, Barefoot v. Estelle, supra, comports with what this Court stated and held in Holloway v. State, supra. Also see Rule 702 of the recently enacted Texas Rules of Evidence, which are applicable only to civil proceedings. Rule 702 provides in part: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence ..., a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise.”

However, the holdings in Holloway v. State, supra, and Barefoot v. Estelle, supra, are inapplicable to this cause because the admission of Dr. Hosch’s proffered testimony would not have gone to an ultimate factual issue, as occurred in those causes, but, instead, was offered solely to assist the jurors in judging or evaluating eyewitness identification testimony.

In deference to the court of appeals’ decision to sustain the trial court’s decision not to permit Dr. Hosch to testify in the jury’s presence, I-must concede that its holding is in accord with the general rule that trial and appellate courts have been reluctant to admit testimony of experts in the field of eyewitness identification, primarily on the rationale that jurors are capable of deciding identification issues without expert assistance. See Sobel, Eyewitness Identification: Legal and Practical Problems (1984 Edition).

At one time, before it became an established scientific fact that eyewitness identification testimony may be unreliable, it was permissible to exclude such testimony as was proffered in this cause. However, but in light of what the experts, who have scientifically studied eyewitness identification testimony, have now shown and proved, is now not the time to abandon in whole or in part the above exclusionary rule?

The decisions by the courts reflect, in excluding such testimony, that they rely almost exclusively upon the conclusion that such testimony is impeachment testimony, as well as the fact that because the credibility of a witness is for the jury to decide, the expert is in no better position than the jurors. Unquestionably, if such a witness were called to testify solely to the fact that another witness is not believable, such testimony would be inadmissible. See Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972), in which this Court concluded that psychiatric testimony going solely to the impeachment of a witness should not be admitted because, “in our opinion, the benefit to be gained from such testimony is not great enough to offset the disadvantages which we have listed... In short, we do not feel that such testimony will enable the jury to better decide the issue, (whether to believe the witness).” (221). Notwithstanding this holding, this Court also held that it would continue to subscribe to the principle that “the purpose of expert witness testimony is to supply knowledge that would ordinarily not be available to the trier of the fact.” (221). This Court also held that the “invasion of the province of the jury rule,” that was formerly determinative whether an expert witness would be permitted to testify, “was due a long overdue and official burial,” (220), and buried the rule. Thus, a trial judge abuses his discretion if he prevents an expert witness from testifying solely because his testimony might “invade the province of the jury.”

But did Dr. Hosch’s proffered testimony go solely to the credibility of the identifying witness?

The record in this cause reflects that Dr. Hosch would have testified that he was an assistant professor in psychology at the University of Texas at El Paso, hereinafter called U.T.E.P., that he had been so employed since 1975, and that his specialty was personality and social psychology, with his subspeciality being the unreliability of eyewitness identification. He also would have testified to the subject of eyewitness identification as it relates to the field of psychology, to the factors which are considered in evaluating eyewitness identification, namely, stress, web and focus, and to the effects of repeated exposure to the same person or the repeated showing of photographs of the accused to the witness. He further would have testified to the factor of identification by Mexican-Americans of Anglo subjects, which in this cause was material because the appellant is an Anglo male and the identifying witness is a Mexican-American male. Dr. Hosch also would have testified to experiments which had been conducted by the psychology department at U.T.E.P., and to the results of those experiments.

From the above, as well as from the record, I find that Dr. Hosch was just as qualified to testify as Professor Elizabeth Loftus, who has been hailed as “perhaps the leading expert today on the psychology of the eyewitness,” “who has substantial credentials as an experimental psychologist specializing in human memory and perception,” 15 Trial Lawyers Quarterly 10, 11 (1983); 69 Mass.Law Review 2 (1984), and who has testified on eyewitness identification in at least thirty-four cases. Also see her outstanding work Eyewitness Testimony, in which are contained almost ten pages of reference works, which concern eyewitness identification. I also believe that Dr. Hosch was just as qualified to testify as Dr. Robert Buckhout, who has been permitted to give similar testimony in at least twenty state court trials. See State v. Warren, 635 P.2d 1236, 1243 (Kan.Supr.1981).

In this instance, the trial court expressly held that because Dr. Hosch had not interviewed the victims of the robbery, he was not qualified to give such testimony. This, of course, under either Hopkins v. State, supra, Holloway v. State, supra, or Barefoot v. Estelle, supra, was an insufficient reason to prevent Dr. Hosch from testifying.

It is apparent to me, however, that what the trial court really meant, when he held that Dr. Hosch could not testify, was that such proffered testimony would have consumed too much time, would have “invaded the province of the jury,” which, as noted, see Hopkins v. State, supra, is no longer a viable reason for excluding testimony of an expert witness, or that proper cross-examination was adequate to reveal any frailty in the identification of appellant as one of the robbers. See Sobel, supra, at Sec. 9.6(b). I cannot accept the express reason, or the implied reasons, either individually or as they might be combined, to exclude Dr. Hosch’s testimony.

For the reasons stated by the Supreme Court of Arizona, in its decision of State v. Chapple, 660 P.2d 1208 (Ariz.Supr.1983), I am unable to agree that the consumption of time that might have been involved in the direct and cross-examination of Dr. Horsch, in comparison with the importance of the issue that was before the jury, was sufficient, standing alone, to preclude Dr. Hosch from testifying.

As to the cross-examination factor, I first point out that in this instance, misidentifi-cation was the appellant’s sole defense. Although it is generally true that through cross-examination the defendant is entitled to inquire into the witness’ opportunity for observation, his capacity for observation, his attention and interest and distraction or diversion of attention, see United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973), as well as establishing the time interval which passed between the occurrence of the event and the in court identification, and the effects of stress on the witness’ ability to perceive, it is also true, as any experienced court room participant has witnessed, that “it is a matter of common experience that, once a witness has [identified] the accused at [a] lineup, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined then and there, before the trial.” United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967). Also see Wall, Eyewitness Identification in Criminal Cases. Thus, because eyewitness identification testimony is not only very believable and can wield considerable influence over the jury’s decision to acquit or convict the accused, but because it is also not always reliable, and is flawed simply because of the normal and natural memory processes that occur whenever human beings acquire, retain, or attempt to retrieve information, the jury should be entitled to receive expert testimonial evidence that might supply knowledge or information that would not ordinarily be available to the trier of fact. I believe that when the State’s case is dependent solely upon eyewitness identification testimony, and as pointed by Professor Loftus in her above titled book, expert witness testimony regarding the variables involved in eyewitness identification would be of extreme benefit and assistance to the average juror in reaching a fair and just decision. Contrary to the conclusions reached by some courts, such expert testimony is not dedicated or directed to impeaching the identifying witness. The eyewitness expert is simply presenting testimony about the factors that affect the reliability of an eyewitness’ account. He describes for the jury the studies that have been conducted on people’s ability to perceive and recall complex events under stressful situations, and reports to the jury the results of those studies. With this information, the jurors are then in a better position to evaluate the identification evidence fully and properly.

Is it not true that the basic purpose of any evidence is to facilitate the acquisition of knowledge by the trier of fact, thus enabling it to reach a just determination? As Professor Loftus pointed out in her above book, “The system of evidence used in American courts rests on two axioms: only facts having rational probative or evidential value are admissible, and all facts having such value are admissible unless some specific policy forbids.” Does an expert witness on eyewitness identification not meet these tests? He does not state that he believes a particular piece of testimony to be believable, accurate, or inaccurate. Rather, his task is to review the relevant psychological findings and enumerate the various factors affecting the reliability of eyewitness accounts. The jury decides what weight to give his testimony.

It is now a historical fact that numerous persons have been wrongfully convicted solely on the basis of mistaken eyewitness identification testimony, that the possibility of mistaken eyewitness identification testimony is always great, and that evidence of eyewitness identification has an overwhelming influence on jurors. Where the State’s case is dependent solely upon eyewitness identification, I am unable to believe that the average juror is aware of the numerous variables that go to what caused the witness to make his or her identification of the accused. In this instance, I am unable to conclude that depriving the jurors of Dr. Horsch’s testimony did not prevent the jurors from having the best possible degree of understanding eyewitness testimony. Note, “Did Your Eyes Deceive You?” Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969 (1977). Thus, considering the standard whether Dr. Hosch’s testimony might have assisted the jury in determining an issue before them, I believe that his offered testimony was a proper subject for the jury, would have been of considerable assistance to the jury in resolving the issue whether the appellant was one of the robbers, and should have been admitted.

In conclusion, from a practical standpoint, what is the real difference in meaning between permitting the jury to hear expert testimony in connection with a courtroom reconstruction of an automobile accident, when there are twelve eyewitnesses to the accident, each of whom would relate the same version of how the accident happened, and expert eyewitness testimony going to the variables involved in eyewitness identification? At the moment, I cannot think of any. And yet, week after week in this State, such experts give testimony before juries in this State. Also see Lacy and Barzelay, Scientific Automobile Accident Reconstruction (1972 Edition). But at the same time, when not money, but a person’s freedom is at stake, we refuse to permit the jury to hear expert eyewitness testimony on identification. We should admit such testimony.

For the above and foregoing reasons, I would grant appellant’s first motion for rehearing, and thereafter would hold that the trial court erred in refusing to permit Dr. Hosch to testify, and that the court of appeals erred in sustaining the trial court’s ruling. Because the majority denies appellant’s motion to file his first motion for rehearing, I respectfully dissent.

MILLER, J., joins.


author: CLINTON, Judge,

text:
    Arthur Joe McGOWAN, Appellant, v. The STATE of Texas, Appellee.
    No. 194-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 6, 1985.
    John W. Wiggins, Sr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Calvin Hartmann and Donald A. Smyth, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   CLINTON, Judge,

dissenting.

The court of appeals held that an officer who observed (and was in fact a participant in) the drug transaction for which appellant was convicted could communicate his observations to other officers who could in turn make a valid warrantless arrest of appellant on the authority of Article 14.01, V.A. C.C.P., which reaas in relevant part:

“(a) A peace officer ... may without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.” [All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.]

The only authority cited for this nou-veau construction of Article 14.01, supra, by the court of appeals is another of its own opinions, Gonzales v. State, 638 S.W.2d 41 (Tex.App.—Houston [1st Dist.] 1982, pet. ref’d). The Court in Gonzales, supra, in turn cited Law v. State, 574 S.W.2d 82 (Tex.Cr.App.1978); and Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978).

The most cursory review of Law and Tarpley, both supra, reveal them to deal with situations in which the authority for the warrantless arrests was Article 14.04, V.A.C.C.P. — not Article 14.01.

Article 14.04, supra, by its explicit terms more often than not deals with the transfer of information to the arresting officer by another or others.

Thus, appellant’s petition for review presents to us a question of first impression, which impresses me as a classic reason for exercising our discretionary review jurisdiction.

I would grant appellant’s petition for discretionary review to resolve the important question presented thereby, and dissent to the Court’s refusal to do so.

TEAGUE and MILLER, JJ., join.

      . “Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue'and arrest the accused.”

      . In Willis v. State, 669 S.W.2d 728 (Tex.Cr.App.1984), the Court recognized that Article 14.04 and Article 14.01, V.A.C.C.P., are not interchangeable, each being supported by its own policy considerations. WÜlis, supra, may be read to be in accord with the court of appeals’ opinions here, but it did not analyze the issue presented today.


text:
    Alfred Lee TANKSLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 374-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.

      Robert J. Seerden, Howard Marek, Victoria, for appellant.
    George J. Filley, III, Dist. Atty., Victoria, Robert Huttash, State’s Atty., Austin, for the State.
   TEAGUE, Judge,

dissenting.

In his appellate brief on direct appeal, Alfred Lee Tanksley, appellant, made the following assertion in his first ground of error: “The Trial Court committed reversible error in denying Appellant’s Motion for Mistrial because no valid reason existed for presenting the Appellant before the prospective jurors while wearing leg irons and handcuffs.” The State, in its reply brief, did not dispute or take issue with appellant’s assertion of what factually occurred, but in fact agreed that “The record disclosed that Appellant was transported with hands cuffed and legs shackled by two Sheriff’s Deputies from the County Jail, across the street to the Courthouse, up the elevator, and into the courtroom.” The State claimed, however, inter alia, that because of the facts of the case, such restraint of appellant was necessary. However, in its reply to appellant’s petition for discretionary review, the State has changed its tune and now asserts the following: “We find no evidence in the record that any prospective juror saw Petitioner in handcuffs and leg irons.”

The Corpus Christi Court of Appeals refused to review appellant’s ground of error, making the following finding: “The defense attorney did not make a bill of exceptions [sic] or otherwise present or preserve evidence regarding this incident. A statement by appellant’s counsel, standing alone, may not be taken as evidence. Wingate v. State, 487 S.W.2d 89 (Tex.Cr.App.1972). There is nothing for this Court to review. Wingate at 93.”

On October 31, 1984, this Court refused appellant’s petition for discretionary review without written opinion. Appellant has filed a motion for rehearing, forcefully arguing therein that the ground of error was properly preserved for review. Because I now find that I am in agreement with appellant, that the ground of error was properly preserved for review, I file this dissenting opinion to the Court’s decision to deny appellant’s motion for rehearing.

I first find that Wingate v. State, supra, is not factually in point and thus does not support the court of appeals’ decision not to review appellant’s first ground of error.

As expressly pointed out in Wingate, the attorney’s statement, that was deemed not to constitute “evidence”, was made at the hearing on the defendant’s motion for new trial. It amounted to nothing more than argument as to why the motion should have been granted. Secondly, it was the contention of the defendant Wingate that what he was arguing about constituted newly discovered evidence. In light of the provisions of Art. 40.03, V.A.C.C.P., this Court correctly held the following: “Since the statement by appellant’s counsel, standing alone, may not be taken as ‘evidence’ of [his] claim, there is nothing for this Court to review.”

Thus, the facts of Wingate', supra, are not those of this case. The record of appeal in this cause reflects that • approximately ten minutes before the jury panel was to be examined, appellant’s counsel addressed the court:

Defense Counsel: Your Honor, at this time we would like to make a motion for mistrial on behalf of the defendant. We would like to show to the Court — and I think it could be stipulated — that the Court previously granted a motion to have this defendant tried in civilian clothes, which he is wearing. But, that the representatives of the Victoria County Sheriff’s Department, and there are two of them here who have custody of this defendant, Deputy Tiny Duke and Sheriff Deputy Tommy Rakowitz, transported the defendant from the sheriff’s office here in Victoria County to — Excuse me, Dewitt County Jail in the Dewitt County Jail to this courthouse at about 20 minutes after 1:00 at a time when substantially all of the jury panel has been called to hear this case and were out in the hallway in the elevator lobby right in front of this courtroom.
They brought the defendant across the street, up in the elevator, passed him in front of this entire jury panel and in the courtroom where there were at least two prospective jurors and possibly more. They walked him in front of them with his hands cuffed and his legs shackled. If we need to have any evidence to show that, but I think the State would agree that those facts occurred and I think that most of them were in plain view of this Court. Certainly while it may not be in violation of the actual wording of the Court’s order [apparently referring to the court’s order that appellant would be tried in civilian clothes], it certainly is contrary to the granting of the order by the Court to permit him to be tried looking like any other citizen in civilian clothes.
Most civilians don’t walk around with their hands cuffed and their legs shackled. And, we think that this action has prejudiced this defendant in the part of this jury panel to such an extent that there is no action of the Court that could remove those visions in the minds of this panel.
We, therefore, ask that this panel be quashed and that a new panel be called and a mistrial be granted at this time.
THE COURT: Okay, sir. The motion for mistrial is denied.

As easily seen, neither the prosecuting attorney nor the trial judge took issue with counsel’s factual rendition of what had occurred or taken place.

The question that is before this Court does not go to the merits of appellant’s assertion. See, however, the cases collated in West’s Texas Digest, under Criminal Law Keys 637 and 1166.11. The question that is now before this Court is whether appellant properly preserved his ground of error for appellate review.

Just recently, this Court in Canada v. State, 660 S.W.2d 528 (Tex.Cr.App.1983), rejected the defendant in that cause’s contention that “the prosecutor’s statements referring to the hospitalization of the witness were not competent evidence.” Also see Art. 40.09, subdivisions 4, 6, and 6(d)(1), V.A.C.C.P.; Presiding Judge Onion’s commentary to Art. 40.09, supra; Koehler v. State, 679 S.W.2d 6 (Tex.Cr.App.1984); Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975); Quevedo v. State, 661 S.W.2d 321 (Tex.App.—Corpus Christi 1983). Cf. Rumsey v. State, 675 S.W.2d 517 (Tex.Cr.App.1984).

An attorney representing his client in the trial of a case occupies a unique position in our legal community. He is an officer of the court, see Ex parte Howell, 488 S.W.2d 123 (Tex.Cr.App.1972), and, although I have been unable to find any legal authority to support such a proposition, other than the fact that an attorney occupies such a unique position in our legal community, it is not unusual for him not to even be required to take an oath before he testifies in a court of law.

If a prosecuting attorney’s unsworn statement that a certain witness who was vital to his case was in the hospital suffering from a gunshot wound and an automobile accident is competent evidence, see Canada v. State, supra, then why are the above statements that appellant’s counsel made not competent evidence and sufficient to support an offer of proof? Is it not true that a good rule of law works for the State as well as the accused?

I believe, as the State originally agreed, that counsel’s statements to the Court were sufficient to preserve the error.

This Court should grant appellant’s motion for rehearing and then remand the cause to the court of appeals for it to review appellant’s first ground of error. To the majority’s failure to take this action, I respectfully dissent.

CLINTON, McCORMICK and WHITE, JJ., join.


author: CLINTON, Judge. ONION, Presiding Judge,

text:
    Rudolfo Martinez RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 67744, 67745.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.
    Richard E. Langlois, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Elizabeth H. Taylor and Jerry Rosson, Asst. Dist. At-tys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

After unsuccessfully litigating written motions both to suppress evidence and dismiss the indictments for failure to provide a speedy trial, appellant entered pleas of guilty to the offenses of possession of heroin and burglary of a habitation in a single proceeding. The admissible evidence incriminating appellant offered by the State on the main charges was his written judicial confessions and an exhibit with attachments.

The records reflect there was the plea bargaining agreement between appellant and the State that the former would plead guilty and the State would abandon two enhancement paragraphs of the burglary indictment, one enhancement allegation in the charge of heroin possession, and recommend that a sentence of thirty years confinement be assessed in each case. These recommendations were followed by the trial court. Accordingly, this Court has jurisdiction to consider appeals of these causes on matters which were either raised pretrial or on which the trial court gave permission to appeal. Galitz v. State, 617 S.W.2d 949 (Tex.Cr.App.1981).

In Cause No. 67,744, appellant complains, inter alia, of the trial court’s denial of his motion to suppress evidence, and in both Cause Nos. 67,744, and 67,745 he complains of denials by the trial court of his motions to dismiss the indictments for failure to comply with the provisions of Article 32A.01, et seq., the Texas Speedy Trial Act.

Until the opinion of this Court in Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983), disposition of his claim of denial of speedy trial rights would follow Wooten v. State, 612 S.W.2d 561 (Tex.Cr.App.1981), since the record clearly shows that appellant’s pleas of guilty and attendant judicial confessions were made with the understanding of all concerned that the very issues raised by his pretrial motions could be appealed. Now, however, the Court has overruled Ramirez v. State, 590 S.W.2d 509 (Tex.Cr.App.1979); Luna v. State, 602 S.W.2d 267 (Tex.Cr.App.1980); Flores v. State, 606 S.W.2d 859 (Tex.Cr.App.1980), which found that a plea of guilty waives speedy trial rights, and all other decisions following them, including the germane portion of Wooten, supra, at 562-563 (headnote 2). Accordingly, as in Martin v. State, supra, appellant is entitled to plenary consideration of his claim, and to that we now turn.

The relevant chronology of events is as follows:

May 2, 1979 Appellant arrested.
June 20, 1979 Appellant indicted in Cause Nos. 79-CR-1540 and 79-CR-1541.
June 29, 1979 Appellant waived arraignment.
June 29, 1979 State filed announcement of ready.
July 12, 1979 Pretrial hearing set.
July 16, 1979 First trial setting; State announced ready but that cases were to be reindicted.
July 27, 1979 Trial reset to September 10, 1979.
August 1, 1979 Reindictment under new Cause Nos. 79-CR-1851 and 79-CR-1852.
August 9, 1979 Appellant waived arraignment..
September 10, 1979 Trial setting; Motions to Dismiss Under Speedy Trial filed.
September 11, 1979 Hearing on Speedy Trial Motions.

The assistant district attorney in charge of prosecuting cases in the trial court also testified that the State announced ready July 27 and was in fact ready to go to trial, notwithstanding he had noticed a defective enhancement paragraph. When a plea bargain did not materialize, he obtained corrective indictments and though arraignment on them was waived August 9, a notation on the “jacket” showed that the State announced ready on that occasion; while he was not in court September 10 to hear an announcement of ready on the part of the State, he was “quite certain the State is ready, was ready, is ready.” Not only did he know most of the officers involved and that they were available, but the record shows that two of them were in the courtroom at that very moment.

The contention advanced by appellant is that the State “negated” its prior announcements of ready as of August 1 by causing the grand jury to return reindictments on that day. But his premise seems to be that in ruling on a motion to dismiss pursuant to Article 32A.02, § 1, the court is to look only to written announcements of readiness filed by the State, for he points out that here there was just the June 29 filing. Though appellant accepts that the State was ready September 10, he dismisses that circumstance since it came after expiration of the 120 day period following his arrest.

Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979) is squarely against the contention:

“Once the defendant files his motion to dismiss for failure to adhere to the provisions of the Act, the state must declare its readiness for trial then and at the times required by the Act. This declaration is a prima facie showing of conformity to the Act, but can be rebutted by evidence submitted by the defendant demonstrating that the state was not ready for trial during the Act’s time limits.” Id., at 542.

Not only was the State ready for trial when appellant’s motion to dismiss was heard, but also it had announced ready before and after the reindictments were returned, and the prosecutor testified that the State had been actually ready for trial. Merely showing that the defective enhancement allegation was replaced by a correct one in the second set of indictments does not demonstrate otherwise. The grounds of error are overruled.

The first ground of error in Cause No. 67,744 asserts that the trial court erred in overruling appellant’s motion to suppress evidence because the search that produced it was “incident to a pretext arrest.” The second ground challenges sufficiency of the evidence to support a finding of guilt. In reply the State meets the merits of the first ground headon, though with respect to the second the State points out that appellant not only executed a written waiver and consent to stipulation of evidence but also made a written judicial confession which “standing alone is sufficient to support the plea of guilty,” citing Byrom v. State, 528 S.W.2d 224, 226 (Tex.Cr.App.1975).

Recently in Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App., 1985), this Court found, “Just as the plea itself no longer waives the right to complain of pretrial rulings on appeal, so the confession or admission will not bar an appellate court from reaching the merits of the complaint.” To that extent Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), and its progeny including Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979), were overruled. Therefore, appellant has adequately preserved his claimed error on the part of the trial court in denying his motion to suppress. Accordingly, we may now address the merits of that claim, and turn to do so.

Evidence of fruits of the search of the person of appellant contemporaneously with his warrantless arrest were admitted by way of stipulation in support of his guilty plea. See note 2 ante. Putting aside his judicial confession, we are thus authorized to determine the merits of his pretrial motion to suppress evidence gained through what appellant contends is a pre-textual arrest. Galitz, supra, at 955-956.

The germane facts are not disputed, and as related by appellant in his brief the essence of what happened is as follows: The San Antonio Police Department Task Force received information from a detective at the burglary division that appellant was suspected of committing recent burglaries and that the vehicle appellant was driving had been identified at recent burglaries. Task Force Officers followed appellant and observed him drive through an area of town which is a known heroin connection and followed appellant to another area of town where officers observed him get out of his vehicle and get into a parked vehicle at a local ice house; through binoculars appellant was seen placing a package with a white substance into his pocket, walk back to his vehicle and leave the area. During this period that the officers were tailing the appellant, they received information that the actor had an active burglary warrant and based upon this information and the observation of the officers which indicated to them that appellant had made a heroin transaction, appellant was stopped in his vehicle at a red light intersection and, as they approached his vehicle, they observed appellant throw a small package from his vehicle onto the ground; it was recovered by the officers and identified as heroin. A passenger with appellant was also arrested and a balloon containing heroin was removed from his mouth.

Regardless of whether those facts show a pretext for stopping appellant, they do clearly show that the heroin was not obtained as a result of a search of the person or automobile of appellant. See Frazer v. State, 508 S.W.2d 362 (Tex.Cr.App.1974) (marihuana in a bottle retrieved by officer after accused had “flicked” it from automobile seizable under plain view doctrine). The first ground of error is overruled.

Finally, appellant contends the evidence is insufficient to support a finding of guilt in that the State did not adequately prove the substance in the bag he threw away was heroin. Not only is the stipulated evidence sufficient but also appellant judicially confessed in writing that on the occasion in question he “did then and there knowingly and intentionally possess a controlled substance, namely: heroin.” For purposes of testing evidentiary sufficiency we will not disregard his judicial confession. The last ground of error in Cause No. 67,744 is overruled.

In Cause No. 67,745, the sole ground of error in appellant’s original brief is that the trial court erred in its admonishment as to the range of punishment. Article 26.13, V.A.C.C.P. However, we find that the court did state the minimum and maximum terms applicable to a first degree felony in such a way that made the range of punishment easily understandable. Accordingly, the ground of error is overruled.

The judgments are affirmed.

WHITE, J., not participating.

ONION, Presiding Judge,

concurring.

I concur in the result reached. I do note that in passing on the sufficiency of the evidence in Cause No. 67,744 to meet the requirements of Article 1.15, V.A.C.C.P., in light of appellant’s plea of guilty the majority considered, and rightly so, the judicial confession of the appellant, freely and voluntarily given. It is interesting to observe that if the decision of the majority on the trial court’s ruling on the pre-trial motion to suppress had been otherwise, then the freely and voluntarily given judicial confession would have been ignored for all purposes. This is so because of the judicial hijinks in the majority opinion in Ex parte Morgan, 688 S.W.2d 504 (Tex.Cr.App.1985), interpreting Article 44.02, V.A.C.C.P., as amended, and overruling Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), and Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979).

Thus the consideration on appeal of a freely and voluntarily given judicial confession, where there has been a plea bargain agreement and an appeal from a ruling on a pre-trial motion, turns on the decision the appellate court makes on pre-trial ruling. Thus if the subject matter, the “tainted” evidence involved in the hearing on a pretrial motion to suppress evidence, is not used during the plea of guilty proceedings, but on appeal the appellate court determines the overruling of the motion to suppress was erroneous, the entire conviction is reversed. This is utter nonsense because on re-trial the same evidence could be introduced again and on appeal the conviction would be affirmed. This all follows from the overruling of Ferguson and Haney in Morgan which failed to set any guidelines for re-use of judicial confessions and stipulations following reversal on the erroneous ruling on a pre-trial motion. Hopefully this Court will soon end this foolishness or the Legislature will act.

I cannot agree with the majority’s statement in today's opinion

“Accordingly, this court has jurisdiction to consider appeals of these causes on matters which were either raised pretrial or on which the trial court gave permission to appeal. Galitz v. State, 617 S.W.2d 949 (Tex.Cr.App.1981).” (Emphasis supplied.)

To the extent that Galitz so holds, it should be overruled.

If a defendant falls within the provisions of the 1977 amendment to Article 44.02, he has no right of appeal at all without the permission of the trial court save and except the appeal from rulings on certain pre-trial matters. If an appeal from the plea itself is permitted within the discretion of the court, there is nothing to indicate any legislative intent that the appeal can be greater in nature or scope than an appeal permitted by law where the guilty plea is without a plea bargain. Thus if the court permits an appeal from the plea itself under the amendment to Article 44.02 where there is a plea bargain, it cannot enlarge upon the type of appeal to be accorded the defendant. A defendant who has already benefited from a plea bargain, and who normally would have no appeal at all, is not entitled to a greater right to appeal merely because he gains permission of the trial court. This is plain from the language of the statute. Article 44.02 was not intended to create an artificial distinction between the two forms of guilty pleas. The court cannot waive statutory or other requisites and permit an appeal the defendant would not be accorded. Galitz was wrong in interpreting Article 44.02 as allowing a defendant to appeal a specific matter (not the subject of a pre-trial motion) following a guilty plea and a plea bargain which a defendant on a plea of guilty without a plea bargain cannot appeal. It was the very purpose to reduce the number of appeals where there had been a plea bargain, not to increase them. Galitz should not continue to be cited.

I do, however, concur in the result reached by the majority in the instant case.

      . The possession of heroin charge also alleged appellant had been once before convicted of a felony; to this "repeater" paragraph, appellant entered a plea of "true.”

      . Contained in State’s Exhibit No. 1 in each case are a laboratory report and offense reports by investigating and arresting officers. Appellant agreed to waive his rights to confront and cross-examine these witnesses, and stipulated in effect that, if called, these law enforcement witnesses would testify to the facts contained in the reports.

      . These complaints regarding the Speedy Trial Act were raised in supplemental grounds of error, duly filed with the trial court.

      . When the State offered its evidentiary exhibits, the trial court asked if there were any objections, to which defense counsel replied that he had none, subject to the motions to suppress and dismiss the indictments under the Speedy Trial Act. In addition to the transcription of the court reporter’s notes of the plea hearing and formal sentencing, appellant’s notices of appeal and objections to the records, and the trial court’s rulings thereon make it clear appellant, defense counsel, the prosecutor and the two trial judges involved, all believed the issues were appealable on the present state of the record.

      . At the outset of a hearing on motion to dismiss the clerk of the court stated that both the State and appellant announced ready for trial, but since an earlier case was ready, trial of the instant cause was reset for July 27.

      . The clerk of the court also stated that on August 9 the State announced ready, and trial was then set for September 10.

      . Their information was false: the detective was on his way to obtain an arrest warrant.


author: PER CURIAM.

text:
    Ismael GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 952-84.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.

      Clyde F. DeWitt, III, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., & Timothy G. Taft & Tim Horan, Asst. Dist. At-tys., Houston, Robert Huttash, State’s Atty. & Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appeal is taken from a conviction for obscenity. After the jury found appellant guilty, the court assessed punishment at 5 days and a $1,000.00 fine. The Court of Appeals reversed appellant’s conviction. Gonzales v. State, 676 S.W.2d 437 (Tex.Ap.—Houston [1st] 1984). The reversal by the Court of Appeals was based on the holding that the trial court reversibly erred in submitting a charge to the jury on the presumption provided by V.T.C.A., Penal Code, Section 43.23(e). See Shealy v. State, 675 S.W.2d 215 (Tex.Cr.App.1984); Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983).

In its petition for discretionary review, the State maintains that the Court of Appeals erroneously found that the evidence was insufficient to prove that appellant had knowledge of the content and character of the alleged obscene material. Such finding by the Court of Appeals was based on language within this Court’s opinion in Shealy v. State, supra. The State appropriately notes that the question of sufficiency of the evidence was not before this Court in Shealy v. State, supra.

We agree with the Court of Appeals that appellant’s conviction must be reversed due to submission of a charge on Section 43.-23(e), supra. As is true in every case, refusal of discretionary review by this Court does not constitute an endorsement or adoption of the reasoning employed by the Court of Appeals. This is true where the petition is refused without opinion, as is the usual practice, as well as where the petition is refused with a brief opinion disavowing the reasoning employed by the Court of Appeals, as in the instant case. See Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983).

The State’s petition for discretionary review is refused.


author: LEVY, Justice. LEVY, Justice,

text:
    Robert Stephen PENHAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0271-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 31, 1985.
    Rehearing Denied March 21, 1985.
    Buddy Stevens, Angleton, for appellant.
    John B. Holmes, Jr., Timothy G. Taft, Robin F. Brown, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before SMITH, BASS and LEVY, JJ.
   OPINION

LEVY, Justice.

Appeal is taken from a conviction for the felony offense of possession of methaqual-one with intent to deliver, enhanced by a prior felony conviction for theft. A jury convicted appellant, found the enhancement paragraph to be true, and sentenced him to 12 years imprisonment and a $5,000 fine.

We find that the notice of appeal was premature and therefore the appeal must be dismissed for want of jurisdiction. The record reflects that the appellant was sentenced on April 13, 1984. Written notice of appeal was given on April 25, 1984. However, a motion for new trial was thereafter timely filed on May 11, 1984. When the motion for new trial was overruled by operation of law on June 28,1984, in accordance with Tex.Code Crim.P.Ann. art. 40.05(c) (Vernon 1981), no further notice of appeal was given as required by Tex.Code Crim.P. Ann. art. 44.08(b) (Vernon 1981) which provides:

Notice of appeal shall be filed within 15 days after overruling of the motion or amended motion for new trial and if there be no motion or amended motion for new trial, then within 15 days after sentencing.

The appellant’s notice of appeal was premature and therefore does not effectively initiate the appeal. Gordon v. State, 627 S.W.2d 708, 709 (Tex.Crim.App.1982); Wilkerson v. State, 670 S.W.2d 280, 281 (Tex.App.—Houston [1st Dist.] 1983), rev’d on other grounds, 681 S.W.2d 29 (Tex.Crim.App.1984); see also Johnson v. State, 688 S.W.2d 656 (Tex.App.—Houston [1st Dist.] 1984); Mosqueda v. State, 646 S.W.2d 589 (Tex.App.—Houston [1st Dist.] 1983, no pet.); contra Johnson v. State, 649 S.W.2d 153, 154 (Tex.App.—Austin 1983, no pet.); Mayfield v. State, 627 S.W.2d 474, 475 (Tex.App.—Corpus Christi 1981, no pet.).

Even though there no longer appears to be a satisfactory reason for requiring an appellant to file a duplicate notice of appeal after the overruling of his motion for new trial, the holdings in Gordon and Wilkerson seem to mandate that course of action. Mayfield and Johnson, 649 S.W.2d 153, both hold that a premature notice of appeal should be governed by Tex.R.Civ.P. 306c, so that it “shall be deemed to have been filed on the date of but subsequent to ... the date of the overruling of motion for new trial, if such motion is filed.” The beneficial effect is two-fold: (1) if treated as consistent with the Code of Criminal Procedure and the Texas Rules of Post-Trial and Appellate Procedure in criminal cases, it will protect a party who clearly wants to appeal from losing his appeal on a technicality of premature filing; and (2) when treated in conjunction with Tex.R.Crim.App.P. 211, it will tend to make the criminal and civil procedures as consistent as possible. Such reasoning is both sound and persuasive, but we are obliged to follow prior opinions of the Court of Criminal Appeals and our own prior opinions.

In the interest of justice, Tex.Code Crim. P.Ann. art. 44.08(e) (Vernon 1981) provides:

For good cause shown, the court of appeals may permit the giving of notice of appeal after the expiration of such 15 days.

It has been held that a showing of “good cause” must be based upon sworn testimony or other sufficient supportive evidence in the record. Abron v. State, 531 S.W.2d 643, 645 (Tex.Crim.App.1976); McCuin v. State, 504 S.W.2d 512, 513 (Tex.Crim.App.1974); Menasco v. State, 503 S.W.2d 273, 275 (Tex.Crim.App.1973). Thus, we order the dismissal of this appeal without prejudice to the appellant’s filing of a motion in this court for reinstatement, supported by sufficient evidence of good cause for the late filing of the notice of appeal.

This appeal is dismissed for want of jurisdiction.

MOTION FOR REHEARING

LEVY, Justice,

dissenting.

I respectfully dissent, and would reinstate the appeal, previously dismissed on jurisdictional grounds because of an ineffective notice of appeal. See Penhaker v. State, 689 S.W.2d 233 (Tex.App.—Houston [1st Dist.], 1985). It seems appropriate to accept less than impregnable grounds for reinstatement because the procedural error sought to be overcome is merely a filing of a notice of appeal made technically “premature” by the cautionary action of another attorney — unaware at the time that he had earlier been dismissed — who had apparently wanted only to preserve the record for an appeal by filing a motion for new trial. A prima facie showing of good cause for reinstatement should be sufficient, and we ignore it at peril of violating the meaning of art. 44.23, V.A.C.C.P., which requires that “... no affirmance or reversal of a ease shall be determined on mere technicalities or on technical errors in the preparation and filing of the record on appeal.” (emphasis added).

In Johnson v. State, 688 S.W.2d 656 (Tex.App.—Houston [1st Dist.] 1984), appellant filed a pro se motion for new trial after notice of appeal had been filed by his attorney. Appellant did not renew his notice of appeal after his motion for new trial had been overruled, as required by Tex. Code Crim.P.Ann. art. 44.08(b), (Vernon Supp.1985). A notice of appeal is premature and does not effectively initiate the appeal if filed before the disposition of a motion for new trial, either by action of the court or by operation of law. Menasco v. State, 503 S.W.2d 273 (Tex.Crim.App.1973). This court held that there was “good cause” excusing the premature filing of the notice of appeal, and allowed reinstatement in a subsequent order. In the name of constitutional.Due Process, I believe that the appellant herein is similarly entitled to nothing less than procedural fairness, achievable only through a generous treatment of this procedural snarl, and not through a mechanical and unrealistic application of the law, far beyond its supporting rationale.

In Evitts v. Lucey, — U.S. —, 105 S.Ct. 830, 838, 83 L.Ed.2d 821, the United States Supreme Court on January 21, 1985, in reinstating an appeal dismissed by the Kentucky State courts because of a failure to file a timely “Statement of Appeal,” held that the Due Process Clause of the Fourteenth Amendment prohibited Kentucky from terminating a criminal appeal because a careless attorney had violated local rules. “A State may not extinguish this right (of appeal) because another right of the appellant — the right to effective assistance of counsel — has been violated ... (W)hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution — and, in particular, in accord with the Due Process Clause.”

In short, Due Process necessitates a new — but more just — approach, requiring reinstatement.


author: SCHULTE, Justice.

text:
    Tony TUCKER, Appellant, v. The STATE of Texas, Appellee.
    No. 08-84-00286-CR.
    Court of Appeals of Texas, El Paso.
    Feb. 13, 1985.

      J.K. “Rusty” Wall, Midland, for appellant.
    Al Schorre, Dist. Atty., Midland, for ap-pellee.
    Before WARD, OSBORN and SCHULTE, JJ.
   OPINION

SCHULTE, Justice.

This is an appeal from a conviction for burglary of a habitation. The jury found true as to two enhancement counts and assessed punishment at ninety years imprisonment. We affirm.

In Ground of Error No. One, Appellant contends that the court erred in denying his motion to quash the indictment in that it simply alleged a habitation in Midland County, without greater specificity as to its locale. The contention is without merit in the context of the type of offense alleged. Denison v. State, 651 S.W.2d 754, 758 (Tex.Crim.App.1983); Lane v. State, 621 S.W.2d 172, 175 (Tex.Crim.App.1981); Green v. State, 578 S.W.2d 411 (Tex.Crim.App.1979); Howard v. State, 480 S.W.2d 191 (Tex.Crim.App.1972). Ground of Error No. One is overruled.

In Grounds of Error Nos. Three and Four, Appellant complains that the court improperly refused to charge the jury that State’s witness Hector Marichalar was an accomplice as a matter of law and refused to submit his accomplice status to the jury as a fact issue. The burglary was carried out personally by Appellant, as depicted in the testimony of State’s witness Robin Uballe. Uballe drove Appellant to the site, she circled the neighborhood while Appellant entered and removed the property and then drove him away from the scene. She did so with knowledge of his criminal intent. She assisted in locating buyers for the property and stored it in her vehicle in the interim. The jury was instructed that she was an accomplice as a matter of law and that her testimony had to be corroborated by other evidence tending to connect the Appellant to the commission of the offense. Tex.Code Crim.Pro. art. 38.14 (Vernon 1979).

The corroboration was provided by Mari-chalar, Uballe’s former husband. On the date of the burglary, September 19, 1983, Uballe, Archie Montoya and Appellant drove to Marichalar’s residence. Uballe and Montoya entered and asked Marichalar if he would like to buy a video cassette recorder and stereo. Appellant was waiting outside at the car. A possible price of $300.00 was mentioned inside, but once outside, Appellant took over the negotiations. He opened the trunk and displayed the property. He haggled over price with Mar-ichalar and eventually agreed to $250.00 When Marichalar declined to pay prior to seeing the equipment operate, Appellant took the VCR inside and connected it to Marichalar’s television. The money was passed to Uballe. During the negotiations, the three visitors told Marichalar that the merchandise was stolen. Uballe was arrested in October, still in possession of the complainant’s jewelry box. She gave a statement leading to Marichalar. When contacted by investigators, Marichalar turned over the VCR and recovered the stereo which he had already sold to another. Uballe subsequently pled guilty to burglary of a habitation.

In order to be classified as an accomplice, one must be susceptible to prosecution for the same offense with which the defendant is charged. Russell v. State, 598 S.W.2d 238, 249 (Tex.Crim.App.1980); Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979); Ferguson v. State, 573 S.W.2d 516 (Tex.Crim.App.1978). Commission of a different “downstream” offense, even with knowledge of the prior criminal act charged against the defendant, will not suffice. Carrillo, 591 S.W.2d at 882-883. Marichalar was by his own admission guilty of knowingly receiving stolen property, but there is no evidence of an affirmative act on his part to promote, encourage, assist or participate in the burglary in any manner. There was no error in refusing to instruct the jury that Maricha-lar was an accomplice as a matter of law, nor in refusing to submit such a factual issue for jury determination. Grounds of Error Nos. Three and Four are overruled.

Since there was no evidence that Marichalar was an accomplice to the burglary, it was not error to refuse to instruct the jury that two accomplices may not corroborate each other. Ground of Error No. Five is overruled.

The non-accomplice testimony of Marichalar, describing Appellant’s possession and sale of the property admittedly stolen in the burglary, was sufficient to corroborate the testimony of accomplice Uballe. Dodson v. State, 646 S.W.2d 177 (Tex.Crim.App.1980); Patton v. State, 617 S.W.2d 255 (Tex.Crim.App.1981); Davis v. State, 645 S.W.2d 855 (Tex.App.—Austin 1982, PDRR). Ground of Error No. Two is overruled.

The State properly introduced penitentiary packets (State’s Exhibits Nos. 12, 13 and 14) which demonstrated Appellant’s six prior felony convictions. In Ground of Error No. Six, Appellant complains that he was unfairly prejudiced by the physical description attached to State’s Exhibit No. 14 which stated that he had needle marks on his arm. The description does not expressly relate the marks to extraneous criminal acts on his part. Appellant now contends that this invited the jury to speculate as to his use of controlled substances. The needle mark reference can hardly compare with the proof of his prior convictions already before the jury. In addition to three convictions for burglary, the penitentiary packets depicted separate convictions for delivery of heroin, possession of heroin and possession of narcotics paraphernalia. The needle mark description was innocuous. Ground of Error No. Six is overruled.

The State alleged prior convictions in cause numbers 2794 and 5115 for enhancement purposes. Appellant contends in Ground of Error No. Seven that the State failed to prove the finality of these convictions. State’s Exhibits Nos. 12 and 13 contain certified copies of the judgments and sentences in the alleged causes which, on their faces, appear to be regular and final. The State having made a prima facie showing of final conviction, the burden was upon the Appellant to produce evidence suggesting lack of finality. Diremiggio v. State, 637 S.W.2d 926, 927 (Tex.Crim.App.1982); Williams v. State, 596 S.W.2d 862 (Tex.Crim.App.1980); Johnson v. State, 583 S.W.2d 399 (Tex.Crim.App.1979); Ashley v. State, 527 S.W.2d 302 (Tex.Crim.App.1975). This he failed to do. Ground of Error No. Seven is overruled.

In his final ground of error, Appellant contends that there was no evidence that the offense for which he was convicted in cause number 5115 was committed after final conviction in cause number 2794. State’s Exhibit No. 12 indicates that sentence was entered in cause number 2794 on September 21, 1961. The judgment in cause number 5115 recites that the underlying offense was committed on January 31, 1975. The recital of a commission date in a judgment of conviction is sufficient evidence upon which to evaluate the proper sequence of final conviction and subsequent commission of another offense. Gutierrez v. State, 555 S.W.2d 457 (Tex.Crim.App.1977); Green v. State, 542 S.W.2d 416 (Tex.Crim.App.1976); Espinosa v. State, 463 S.W.2d 8 (Tex.Crim.App.1971). The combined recitals of the two pertinent documents provided sufficient evidence to satisfy the indictment and Tex.Penal Code Ann. sec. 12.42(d) (Vernon Supp.1985). Ground of Error No. Eight is overruled.

The judgment is affirmed.


author: DODSON, Justice.

text:
    Tommy PATE, et ux., Appellants, v. TEXLINE FEED MILLS, INC., Appellee.
    No. 07-83-0098-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 15, 1985.
    Rehearing Denied March 29, 1985.

      Templeton & Garner, Robert E. Garner, John Smithee and Robert L. Templeton, Amarillo, for appellants.
    Underwood, Wilson, Berry, Stein & Johnson, John Mozola and Kelly Utsinger, Amarillo, Richards & Ferguson, Floyd H. Richards, Dalhart, for appellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   DODSON, Justice.

Tommy Pate and his wife, Jerry, appeal from a take-nothing judgment rendered by the trial court on the jury’s verdict on their personal injury action against Texline Feed Mills, Inc. By seven points of error, the appellants claim the trial court committed reversible error by refusing to render judgment for them on an alleged oral verdict, rather than the jury’s written verdict presented in open court; by accepting an ambiguous, unclear, or incomplete jury verdict; by misreading and making verbal comments on a portion of the court’s charge; and, by refusing to permit them to present evidence of acceptable standards of care in the industry which were allegedly violated by Texline. Concluding that appellants’ points of error and contentions made thereunder do not present cause for disturbing the judgment, we affirm.

As an independent welding contractor, Tommy Pate was engaged to perform certain welding work at a grain storage facility owned by Texline. At approximately 1:15 p.m. on 16 May 1979, Pate returned from lunch to begin work on a bin at the grain storage facility. At that time, Pate noticed that a piece of his equipment was missing from the immediate worksite. He went into the facility to locate the missing equipment. Shortly thereafter, a fire started in the facility. As a result of the fire, Pate received severe burns on the upper part of his body, including his chest, back, arms, hands, and face.

The record shows that the case was submitted to the jury on twenty-one special issues numbered 1, 1A, 2, 2A, 2B, 2C, 3, 3A, 4, 4A, 5, 5A, 6, 6A, 7, 7A, 8, 9, 10, 11, and 12. The jury answered all of the issues, except issues numbered 7A, 9 and 12. Those three issues were conditionally submitted and by its answers to the respective predicating issues, the jury was not required to answer those three issues. The jury’s answer to each issue was recorded in writing by the foreman in the answer space provided in the court’s charge.

By its written answers to the special issues, the jury determined: that Texline failed to render the premises in question reasonably safe for Tommy Pate; but, that such failure was not a proximate cause of the occurrence in question; that Texline failed to warn Pate of any danger on the premises; that the dangerous conditions on the premises were known by Texline; that the dangerous conditions on the premises should have been discovered by Texline; but, that none of the three preceeding matters were a proximate cause of the occurrence in question; that Texline failed to properly maintain the electrical motors, apparatuses, “and/or” wiring; and that such failure was not a proximate cause of the occurrence in question.

The jury further found that Texline failed to properly inspect the electrical motors, apparatuses “and/or” wiring; but, that such failure was not a proximate cause of the occurrence in question; that Texline failed to provide proper fire prevention equipment at the facility; but, that such failure was not a proximate cause of the occurrence in question; that the foregoing failures of Texline were a “heedless and reckless disregard of the rights of others”; but, that such action was not a proximate cause of the occurrence in question; and that Pate was not negligent on the occasion in question. To the various items of damages, the jury found a total sum of $609,000.

All of the jury’s answers to the special issues were unanimous, except its answer to special issue number 1A. That special issue, and its predicating issue with the jury’s answers thereto read:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Texline Feed Mills, Inc. failed to render the premises in question reasonably safe for Tommy Pate?
Answer “Yes” or “No”, as you may find.
ANSWER: Yes
If you have answered the above and foregoing Special Issue No. 1 “Yes”, then answer the following Special Issue; other [sic] do not answer the following Special Issue.
SPECIAL ISSUE NO. 1A
Do you find that such failure was a proximate cause of the occurrence in question?
Answer “Yes” or “No”, as you may find.
1-yes
ANSWER: 11-no

Since the jury’s verdict was not unanimous, the eleven jurors that answered “no” on special issue number 1A signed the verdict.

The written verdict signed by the assenting eleven jurors was returned in open court with all jurors present, reviewed and accepted by the court. However, the court, rather than the clerk, read the jury’s written verdict. When reading the written verdict, he misstated the jury’s answer to special issue number 1A (i.e., he stated the jury’s answer as “yes,” rather than one “yes” and eleven “no”). A few minutes after the court had discharged the jury and its members had separated and disbursed, the court realized that he had misread the written answer to special issue number 1A, and he informed Pate’s attorney.

By their first point of error, the appellants claim the trial court erred by refusing to render judgment for them on the verdict as read by the judge in open court, rather than the written jury verdict signed by eleven jurors and returned in open court. We disagree.

The record shows:

THE COURT: All right. Would the foreman please stand and state your name for the record?
JURY FOREMAN: Robert Hopson.
THE COURT: All right. Mr. Hopson, has the jury reached a verdict in the Pate versus Texline Feed Mills case?
JURY FOREMAN: Yes, we have.
THE COURT: And have you — have you, as foreman, signed in — filled in all the answers of the jury to the verdict as rendered by the — by the jury? Have you filled in all the answers that are required to be answered under the jury verdict?
JURY FOREMAN: Yes, sir.
THE COURT: And have you signed the — have you signed — is it — is it a unanimous verdict? Let me ask you that first.
JURY FOREMAN: No, sir.
THE COURT: All right. Is it — is it ten to two or eleven to one?
JURY FOREMAN: Eleven to one.
THE COURT: All right. For the eleven people who all joined in the verdict, did all of the eleven of them sign the verdict form?
JURY FOREMAN: Yes, sir.
THE COURT: And did all eleven of those say that they agreed to every answer that’s — that you filled in?
JURY FOREMAN: Yes, sir.
THE COURT: All right. Would you hand the verdict to the Sheriff and be seated?
THE COURT: All right. At this time, I’m going to read the answers only to the verdict that’s been filled in. Let me check and make sure all eleven have signed on it.
* aje * * * *
(Thereupon the Court examined the verdict form.
THE COURT: There are eleven signatures. I’m going to read the number and the answer of the jury for the attorneys to fill in. Then I’m going to ask the eleven of you who joined in this, I need to get you to listen carefully so that you can tell me, by raising your hands, whether each answer that I’ve read is your verdict. If there’s any of them that you need me to read the special issue questions to be sure, well, then, I’ll do that. But try, the best you can, to follow it by number.
Special Issue Number One. Jury verdict, “yes”.
Special Issue Number One-A. “Yes”.
Special Issue Number Two. “Yes”.
Special Issue Two-A. “Yes”.
Special Issue Two-B. “Yes”.
Special Issue Two-C. “No”.
Special Issue Three. “Yes”.
Special Issue Number Three-A. “No”.
Special Issue Number Four. “Yes”.
Special Issue Number Four-A. “No”.
Special Issue Number Five. “Yes”.
Special Issue Number Five-A. “No”.
Special Issue Number Six. “Yes”.
Special Issue Number Six-A. “No”.
Special Issue Number Seven. “No”.
And, under the instruction of the Court, then, Special Issue Number Seven-A was not answered.
Special Issue Number Eight. “No”.
Special Issue Number Nine. There’s no filling in. Was that conditioned, gentlemen?
MR. MOZOLA: Yes, your Honor.
THE COURT: It was, wasn’t it? Yes. All right. So then — that’s—under the conditions — let’s see. Yes. So you were not required to answer Special Issue Number Nine by the Court’s charge.
Special Issue Number Ten. A. “$300,000.00”.
B. “$ 25,000.00”.
C. “$100,000.00”.
D. “$ 10,000.00".
E. “$ 34,000.00”.
P. “$ 40,000.00”.
G. “$ 50,000.00”.
Number Eleven, Special Issue Number Eleven. “$50,000.00”
Special Issue Number Twelve then was not answered under the instructions of the Court.
All right. Now, the jury has heard me read these answers. If you can tell from the answers if this is your verdict, please raise your hand. Raise your hand if it is your verdict.
All right. Thank you. The record will reflect that eleven jurors did raise their hand and eleven have answered — have signed the verdict. If you — I’ll ask you to raise your hand again if you — if your signature is on the jury verdict; if you signed the jury verdict, will you raise your hand again, please?
All right. The eleven whose signatures are on the jury verdict have also certified that this is their verdict, so I will accept the verdict and order it filed. [Emphasis added.]

Even though the court misread the jury’s answer to special issue number 1A, it is obvious from the record that the court accepted and ordered filed the written verdict. Nevertheless, appellants argue that when the court misread the jury’s answer to special issue number 1A and the jurors assented to the answer as read by the court, the jury changed its verdict on that issue and that the trial court erred by not rendering judgment for them on the verdict made in open court. Again, we disagree.

At the hearing on appellants’ motion for new trial, all twelve jurors in the case testified. That record shows that the jurors did not realize the court had misread the answer to special issue number 1A. None of the jurors had memorized the issues by number. At the time the verdict was read, the jurors simply thought the court had read the issues as shown by the jury’s written verdict. The record further shows that at the time the verdict was read in open court, none of the jurors had any intent to change their vote on special issue number 1A and actually did not realize that the court had misread the answer to that issue.

In Texas, the verdict “is a written declaration by a jury of its decision, comprehending the whole or all the issues submitted to the jury.” Tex.R.Civ.P. 290. That rule makes it clear that there are no provisions in Texas for oral verdicts. Texas has substituted for the traditional oral report of the foreman the more accurate record which results from a report in writing. In that regard, the jurors testified at the hearing on appellants’ motion for new trial, that the jury’s last vote on special issue number 1A in the jury deliberation room was one “yes” and eleven “no,” that the foreman correctly recorded that vote, and that the written verdict signed by the eleven assenting jurors was the jury’s verdict returned in open court.

The trial court exercises judicial discretion in examining the verdict of a jury to determine whether or not it is in proper form and whether the answers made are responsive to the issues. Anheuser-Busch, Inc. v. Smith, 539 S.W.2d 234, 238 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). In that regard, the record shows that the jury’s written verdict was returned in open court and handed to the court. At that time, the trial court examined the written verdict, determined that it was the jury’s verdict and that it was signed by the eleven assenting jurors. When the trial court has examined the verdict and found it to be in proper order, the court’s further action in accepting and directing that the written verdict be filed are purely ministerial acts. Id.

Consequently, in this instance, the jury’s written verdict returned in open court is not destroyed by the trial court’s failure to accurately read the written verdict which was accepted and ordered filed by the court. We, therefore, conclude that the trial court did not err by refusing to render judgment for the appellants on the alleged oral jury verdict. We further conclude that any error by the trial court in misreading the jury’s written verdict in open court was not such a denial of the rights to the appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. See Tex.R.Civ.P. 434. The appellants’ first point of error is overruled.

Alternative to their first point of error, the appellants, by their third point of error, claim that the trial court’s erroneous reading of the jury’s verdict in open court deprived them of: (1) their right to have the verdict affirmed in open court; and (2) their right to have the jury polled. We disagree. The record, which is quoted above, affirmatively shows that the jury’s written verdict was affirmed in open court before the verdict was read to the jury. Thus, the appellants’ first contention under their third point of error is overruled.

We also overrule appellants’ contention that the trial court’s erroneous reading of the jury’s verdict in open court deprived them of their right to have the jury polled. Tex.R.Civ.P. 294 reads:

Either party shall have the right to have the jury polled. When a jury is polled, this is done by reading once to the jury collectively the general verdict, or the special issues and answers thereto consecutively, and then calling the name of each juror separately and asking him if it is his verdict. If any juror answers in the negative when the verdict is returned signed only by the presiding juror as a unanimous verdict, or if any juror shown by his signature to agree to the verdict should answer in the negative, the jury shall be retired for further deliberation. [Emphasis added.]

Even though either party has the right to have the jury polled, that right must be promptly exercised by a request made to the court before the jury is discharged. Chance v. Scarbrough, 303 S.W.2d 832, 837 (Tex.Civ.App.—Austin 1957, writ ref’d n.r.e.). See also Dilbeck v. Ideal Bread Co., 562 S.W.2d 563, 565 (Tex.Civ.App.—Texarkana 1978, no writ); Lewis v. Texas Employers’ Ins. Ass’n., 151 Tex. 95, 246 S.W.2d 599, 600 (1952); Great Atlantic & Pacific Tea Co. v. Garner, 170 S.W.2d 502, 505 (Tex.Civ.App.—Dallas 1943, writ ref’d w.o.m.). Once the request is promptly made before the jury is discharged, the trial court has no discretion but to poll the jury, and the requesting party’s motive is immaterial. Watchtower Mut. Life Ins. Co. v. Davis, 99 S.W.2d 693, 695 (Tex.Civ.App.—Fort Worth 1936, no writ). However, each party has the implicit duty to promptly examine the written jury verdict and promptly request a jury poll before the jury is discharged so that any clerical error in the verdict may be corrected, or the jury may be retired for further deliberation, if necessary.

In this instance, the appellants did not promptly examine the jury’s written verdict nor promptly request the court to poll the jury before the jury was discharged. In that regard, the record shows that the appellants had ample time to exercise their duty to examine the written verdict and promptly request the poll before the jury was discharged. Consequently, the appellants waived their right to have the jury polled. The appellants’ third point of error is overruled.

By their fourth, fifth and sixth points of error, the appellants maintain that the trial court erred: (1) by rendering a take-nothing judgment because the jury’s written verdict is ambiguous, unclear or incomplete; (2) by refusing to grant them a new trial because the jury’s written verdict is ambiguous, unclear or incomplete; and (3) by failing to grant their motion for mistrial. Under these points of error, the appellants contend that the jury’s written answer to special issue number 1A is ambiguous, unclear or incomplete because the answer reads:

I — yes
II — no

They claim that the answer can be interpreted that “yes” is the first answer and “no” is the second answer; or, one for “yes” and two for “no.” Thus, they argue that the verdict is ambiguous, unclear or incomplete.

There is no evidence in the record to support appellants’ strained interpretation of the jury’s written answer to special issue number 1A. Nor do the appellants point us to any such evidence. As we stated above, all of the jurors testified that the jury’s last vote on special number 1A during deliberation in the jury room was one “yes” and eleven “no.” The jury foreman testified that he recorded that vote on the issue. Other jurors testified that the foreman correctly recorded the jury’s answer to that special issue. That answer was returned in open court, and accepted and ordered filed by the court. The appellants’ fourth, fifth and sixth points of error are overruled.

By their second point of error, the appellants claim the trial court erred by improperly reading the court’s charge to the jury by failing to read the charge precisely as it was written and by making extraneous statements and comments to the jury concerning the charge. This point of error does not present reversible error.

In the record before us, there is no transcribed record of the court’s reading of the charge to the jury. The error complained of is developed from testimony by one of the appellants’ attorneys at the hearing on their motion for a new trial. Appellants’ attorney testified that in special issue number 1A the phrase, “a proximate cause” was written “approximate cause,” that the court corrected the error and verbally stated that the words have totally different meanings and “that everyone knows what the term ‘approximate’ means, but that ‘proximate cause’ has a very precise and exact meaning in law.”

Concerning the statement allegedly made by the court, the appellants’ attorney further stated, “that the statement did not appear to me to be offensive or inappropriate.” The attorney candidly admitted that he did not object to the statement at the time it was made “because I thought the Court basically stated pretty fairly what was occurring.” However, he claimed, “there were misstatements of that [i.e., the court’s statements] made in the jury room.”

One of the appellee’s attorneys testified that he recalled that the judge stated, “that ‘proximate cause’ was not the same as ‘approximate cause’ and that ‘proximate cause’ had a legal definition which was stated in the Charge.” After hearing each party’s testimony, the court, in essence, certified that he stated the words have different meanings, that everyone knows what “approximate” means, but that “a proximate cause” had a legal definition which whs stated in the charge.

Tex.R.Civ.P. 275 reads:

Before the argument is begun, the judge shall read to the jury, in the precise words in which they were written, his charge and all requested instructions, special issues, definitions, and explanatory instructions which he may give. [Emphasis added.]

That rule states a procedural, rather than substantive rule of law. Texas State Highway Department v. Reeves, 161 S.W.2d 357, 360 (Tex.Civ.App.—Beaumont 1942, writ ref'd.). The rule should be liberally construed “to expedite the disposition of business and to decrease the number of technical reversals.” Id. It is the policy of the law that the jury shall be correctly instructed. Bd. of Regents, U. of Tex. v. S & G Const. Co., 529 S.W.2d 90, 99 (Tex.Civ.App.—Austin 1975, writ ref’d n.r.e.).

We are not persuaded that Rule 275 precludes the court from correcting obvious typographical errors in the charge. In this instance, the appellants made no objection to the court’s action in correcting the charge. Therefore, any error by the court in that regard is waived. We further conclude that the court’s action in correcting the charge was not “such a denial of the rights of the appellants] as was reasonably calculated to cause and probably did cause the rendition of an improper judgment” in this case. See Tex.R.Civ.P. 434. The appellants’ second point of error is overruled.

By their seventh point of error, the appellants claim the trial court erred by refusing and failing to permit them to present evidence to the jury concerning standards of care accepted in the industry, bearing upon the duty and care required of Texline, and upon the issue of causation of the accident in question. We disagree.

The record shows that the standards of care which appellants sought to establish were standards set forth in the National Electric Safety Code. In B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 697 (Tex.1978), the court determined that a violation of the Corps of Engineers Safety Manual was not a violation of a statute for the safety of employees. In making that determination, the court cited Quinn v. United States, 312 F.Supp. 999 (E.D.Ark.1970), aff'd, 439 F.2d 335 (8th Cir.1971); Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928 (5th Cir.1934) and tacitly agreed with the majority of courts that have ruled such codes (i.e., the Corps of Engineers Safety Manual and the National Electric Safety Code) inadmissible “because they do not have the force of law and represent only the views of their compilers which are subject to conflicting views.” B-R Dredging Co. v. Rodriguez, 564 S.W.2d at 696.

In Whitescarver, the court determined that the National Electric Safety Code was inadmissible to establish a standard of care which the power company had allegedly violated when the company constructed its power line. In this instance, since the record shows that the appellants were attempting to establish that Texline was negligent on the occasion in question because it had violated the National Electric Safety Code, we conclude that the trial court did not err by refusing to permit the presentation of that evidence by the appellants. The appellants’ seventh point of error is overruled.

In summary, the appellants’ seven points of error are overruled, and the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

By their motion for rehearing, the appellants (i.e., the Pates) contend, among other things, that this Court erred by overruling their seventh point of error advanced in their original brief filed in this cause. That point of error reads: “The court erred in refusing and failing to permit Plaintiffs [i.e., the Pates] to present evidence to the jury concerning standards of care accepted in the industry and bearing upon the duty and care of the Defendant [i.e., Tex-line] and the issue of causation of the accident in question” [emphasis added]. On rehearing, the appellants claim this Court erred because “the evidence excluded by the trial court is clearly admissible under Texas law, such error was preserved in the trial court, and such error was harmful to Appellants” [emphasis added].

The “standard of care accepted in the industry” that the appellants wanted to introduce was the National Electric Safety Code. That information was developed by Texline on its cross-examination of the appellants’ expert witness on a voir dire examination. In concluding that the National Electric Safety Code was inadmissible, we relied on B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693 (Tex.1978) and Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928 (5th Cir.1934). Whitescarver presents the majority and prevailing position that the National Electric Safety Code is inadmissible to show negligence. The admissibility view is presented in City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939). The admissibility view from Hardy does not enjoy a significant following by courts from jurisdictions other than Alabama.

In Hardy, the court pointed out that “medical works and other scientific writings shown to be authority on the subject” are admissible in Alabama to show negligence. Thus, the court concluded that the National Electric Safety Code was admissible, as are any other scientific writings. The court readily acknowledged that its admissibility rule was not the prevailing view. Id. at 266. We point out that since the early case of St. Louis, A. & T. Ry. Co. v. Jones, 14 S.W. 309, 310 (Tex.1890), medical treatises and other similar scientific writings are not admissible in Texas to show negligence. Thus, the rationale for the decision in Hardy does not prevail in Texas. Consequently, we continue our reliance on Rodriguez and Whitescarver and adhere to our initial disposition of the appellants’ seventh point of error. Nevertheless, for other reasons that point of error must be overruled.

In their brief, the appellants claim the trial court erred by excluding the evidence which appears at pages 536 through 544 of the statement of facts. We have carefully reviewed the testimony. By that testimony, appellants’ witness stated that there are different classifications for different occupancies; that the facility in question falls under Class Two; that equipment is manufactured for various classifications of occupancy; that the label on a particular piece of equipment reveals the classification for which the equipment is approved; and that the equipment in the facility in question did not meet the provision for a Class Two occupancy. The witness further stated that the standards were generally accepted in the industry and that those standards were from the National Electric Safety Code.

The record shows that there was considerable testimony at the trial concerning the conditions on the premises in question and the “electrical motors, apparatuses, and/or wiring” at the facility. In response to special issues numbered one, two, two-A, two-B, three, and four, the jury found that: Texline failed to render the premises in question reasonably safe for Tommy Pate; Texline failed to warn Pate of any dangers on the premises; the dangerous conditions on the premises were known to and should have been discovered by Texline; Texline failed to properly maintain the “electrical motors, apparatuses and/or wiring” at the facility; and Texline failed to properly inspect the “electrical motors, apparatuses and/or wiring” at the facility. However, the jury failed to find that any of those matters was a proximate cause of the occurrence in question. In this Court, those determinations are not challenged by evi-dentiary points of error.

Consequently, when we consider the excluded evidence in the light of the jury’s unchallenged determinations and the other evidence in the record, we must conclude that the trial court’s refusal to admit the excluded testimony did not amount “to such a denial of the rights of the appellants] as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” See Tex.R.Civ.P. 434. The appellants’ motion for rehearing is overruled.