author: DRAUGHN, Justice. ELLIS, Justice,

text:
    Steven White BATTLE, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-033-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 15, 1984.
    Discretionary Review Refused Oct. 31, 1984.

      Douglas O’Brien, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
   OPINION

DRAUGHN, Justice.

Appellant, Steven White Battle, appeals a judgment of conviction for the offense of murder. The jury found appellant guilty and punishment was assessed by the court at thirty-five years’ imprisonment. In his sole ground of error appellant challenges the sufficiency of the circumstantial evidence to support the conviction. We affirm the judgment.

In reviewing the sufficiency of circumstantial evidence we must determine whether the evidence excludes every reasonable hypothesis other than the guilt of the defendant. Pickering v. State, 596 S.W.2d 124, 128 (Tex.Crim.App.1980). We now review the relevant facts toward that end.

The record at trial shows that on May 21, 1982, appellant, his two sisters, his brother, Connie Johnson, Allison Newsome and her one-and-a-half year old daughter, Latoya Newsome (the deceased), were all living together in a small house in Houston, Harris County, Texas. On this particular morning, appellant, Connie Johnson, Allison Newsome and her daughter, Latoya, woke up around 11:00 a.m. Allison and Connie dressed to go to a store in the neighborhood. Allison also dressed her daughter Latoya to accompany them. Her daughter had apparently not been feeling well for the past few days, and had an increased temperature. The child had also gone to bed late the night before, around 10:30 or 11:00 p.m. However, when Allison and Connie were ready to leave the house, the child, standing up, started crying and her mother reached down to pick her up for the trip to the store, but appellant told her to leave the little girl with him. Accordingly, she placed her child in the center of the bed and left with Connie for the store.

When Allison and Connie returned five to ten minutes later, the deceased was no longer crying or making any noises, and they assumed she was asleep. Allison gave appellant the soap they purchased for him at the store, and he proceeded to take a bath. The two women then watched television for about an hour. During this time they neither saw nor heard anyone enter Latoya’s room, and observed nothing unusual.

Allison then went into the bedroom to check on her daughter. She found her daughter was no longer in the center of the bed where she had left her, but was lying back by the wall. She noticed nothing unusual about the way the child looked. She could not, however, awaken her. She tried shaking the child, but it did not respond. She noticed that Latoya was having difficulty breathing. She then tried unsuccessfully to revive her by mouth-to-mouth resuscitation.

Appellant’s sister called a neighbor and an ambulance. Allison also asked appellant to help, but he refused to interrupt his bath. The ambulance arrived shortly thereafter and rushed the child to Ben Taub Hospital. She arrived at the hospital’s “shock” room at 2:30 p.m., where procedures were immediately commenced to save her life. Dr. Jesus Avelo, a pediatric resident from Baylor College of Medicine, saw her about 4:00 p.m. Subsequent surgical procedures were performed, but to no avail, and two days later she was pronounced dead without having regained consciousness.

Dr. Avelo testified that at the time he first saw her the deceased was in a deep comatose state, almost in cardiac respiratory arrest, and had minor frontal bruises and mild occipital soft tissue swelling. He determined that the deceased had a subdural hematoma (blood clot on the brain). He found contusions on the back which he described as recent and in the shape of a hand print. He also found contusions in the abdominal area which had caused hemorrhaging around the pancreas. Dr. Avelo testified that a subdural hematoma could be caused by an accidental fall, but is also consistent with child abuse.

Dr. Avrelio Espinóla of the Harris County Medical Examiner’s office, who had performed the autopsy, testified and expressed the opinion that the deceased’s injuries were not caused accidentally, but were traumatically inflicted. The cause of death was a fracture of the skull with subdural hematoma and massive hemmo-rhaging from the abdominal cavity around the pancreas, complicated by pneumonia. Dr. Espinóla testified that the injury to the abdomen, a massive retroperitoneal hemorrhage, had occurred only a few hours before admission to Ben Taub because there was no clotting of the blood, which meant the bleeding was continuous. He stated that this injury alone was sufficient to cause the child's death. Dr. Espinóla also testified that after such a skull injury a child could be acting normally for two hours.

Albert R. Ephrain, a Houston Police Officer assigned to the juvenile division, testified that he thought the bruises on Latoya’s back resembled a handprint. He, however, did not put this description into his report. He testified, nevertheless, that the injuries were common to child abuse cases. Appellant presented no testimony in his behalf.

We are satisfied that the jury was justified in finding the appellant guilty beyond a reasonable doubt under the circumstances of this case. Circumstantial evidence will be sufficient to support a conviction on appeal only if the facts proved support a reasonable inference that the defendant committed the crime, and exclude to a moral certainty any inference consistent with his innocence. Galvan v. State, 598 S.W.2d 624 (Tex.Crim.App.1979). Appellant asserted the theories that either the mother caused the child’s death or it was accidental. As to the former, there is no credible evidence that the mother was ever alone with the child during the time frame when the injuries allegedly occurred. As to the latter, expert testimony reflected that all of the death producing injuries could not have been accidentally inflicted.

Particularly relevant is the medical evidence as to the massive nature of the subdural hematoma and the massive abdominal canal hemorrhaging around the pancreas. After such a skull injury, the testimony was that the child could be acting normally for only two hours. With regard to the abdominal hemorrhaging, which was also fatal, Dr. Espinóla testified that it could have occurred only a few hours before admission to the hospital which was at 2:30 p.m. All of this evidence places the occurrence of the fatal injuries within the time frame when only the appellant was alone with the victim. While a strong suspicion or mere probability of guilt is not enough, every fact need not point to the guilt of appellant; rather, the cumulative effect of the incriminating facts is sufficient. Carlsen v. State, 654 S.W.2d 444, 447 (Tex.Crim.App.1983).

There is no evidence of anyone other than the appellant being alone with the victim between the time her mother last saw her conscious shortly after 11:00 a.m. when she was acting normally, standing and crying, and the time she returned from the store and found her quiet, apparently asleep; but as it turns out, unconscious and in a comatose state. She was, in fact, never seen again in a conscious state after she was left alone with appellant. There is no evidence that anyone else was alone with the child other than appellant during the few critical hours before her hospital admission which, according to Dr. Espinóla, was when the death producing trauma occurred. After considering all the evidence in the light most favorable to the verdict, we find it is sufficient to support the jury’s verdict and the judgment of the trial court.

The judgment is affirmed.

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the other members of the court, I would like to record my respectful dissent. Appellant, Steven White Battle, appeals a judgment of conviction for the offense of murder. The jury found appellant guilty on a not guilty plea, and the trial court assessed punishment at thirty-five years confinement in the Texas Department of Corrections.

In appellant’s sole ground of error, he claims that the circumstantial evidence in this case is insufficient to support his conviction for the offense of murder. I would agree.

The record at trial shows that on May 21, 1982, appellant, his two sisters, his brother, Connie Johnson, Allison Newsome and her one and a half year old daughter, Latoya Newsome (the deceased), were all living together in a small house in Houston, Harris County, Texas. Allison, Connie, appellant and the deceased woke up around 11:00 a.m. Allison and Connie dressed to go to a store in the neighborhood. The deceased had not been feeling well for the past few days, and had a temperature. When Allison and Connie were ready to leave the house the deceased was crying, so Allison put her back to bed and left her with appellant.

When Connie and Allison returned five to ten minutes later, the deceased was no longer crying, and they assumed she was asleep. Allison gave appellant the soap they got at the store, and he went to take a bath. Allison and Connie watched television for about an hour. During this time they neither saw nor heard anyone enter Latoya’s room, and observed nothing unusual.

Allison then went into the bedroom to check on the deceased. Latoya was in a different place on the bed than where Allison left her, but there was nothing unusual about the way she looked. Allison, however, could not awaken her. She tried shaking the deceased to no avail. She noticed Latoya was having difficulty breathing. Allison attempted mouth-to-mouth resuscitation.

Appellant’s sister called a neighbor and an ambulance. Allison asked appellant to help, but he refused to get out of the bath tub. The ambulance took Latoya to Ben Taub Hospital, where Dr. Jesus Avelo, a pediatric resident from Baylor College of Medicine, saw her about 4:00 p.m.

Dr. Avelo testified that at that time the deceased was almost in cardiac respiratory arrest, and had minor frontal bruises and mild occipital soft tissue swelling. He determined that the deceased had a subdural hematoma (blood clot to the brain). He found contusions on the back which he described as recent and in the shape of a hand print. He also found contusions in the abdomen area which had caused hemorrhaging around the pancreas. Dr. Avelo testified that a subdural hematoma could be caused by an accidental fall, but is also consistent with child abuse.

The- autopsy on the deceased was performed on May 24, 1982 by Dr. Aurelio Espinóla, the deputy chief medical examiner for Harris County, Texas. The autopsy report listed as cause of death: a fractured skull with subdural hematoma and massive retroperitoneal hemorrhage complicated by pneumonia. The death producing injuries occurred somewhere between three to seven days prior to the autopsy (May 17 to May 21, 1982). A more exact date of the subdural hematoma could not be determined because the blood in the brain was drained during surgery. The date of a head injury and the force of the blow are determined from the amount of blood present. Dr. Espinóla could not determine a more exact date of the other injuries. At the time of the autopsy, the contusions were faint, and the one on Latoya’s back did not resemble a hand print. Dr. Espinó-la also testified that after a skull injury a child will become sleepy but could act normal for a few hours. A fever may accompany such an injury.

Albert R. Ephraim, a Houston Police Officer assigned to the juvenile division, testified that he thought the bruises on Latoya’s back resembled a handprint. He, however, did not put this description into his report. He testified, nevertheless, that the injuries were common to child abuse cases.

Appellant presented no testimony in his behalf.

Circumstantial evidence will be sufficient to support a conviction on appeal only if the facts proved support a reasonable inference that the defendant committed the crime and exclude to a moral certainty any inference consistent with his innocence. Galvan v. State, 598 S.W.2d 624 (Tex.Crim.App.1979). “A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant.” Pickering v. State, 596 S.W.2d 124, 128 (Tex.Crim.App.1980). In Pickering, the evidence essentially ruled out accidental injury. The State presented a statement of the defendant admitting to bruising and injuring the child; however, the Court held this evidence insufficient to show that the defendant caused the more serious internal injuries. The Court said:

The evidence as a whole raises a suspicion of appellant’s guilt. The law deems such level of proof to be insufficient to support a conviction upon circumstantial evidence. Despite the heinous facts in the record before us we cannot uphold a conviction upon less proof than the law requires. We hold the evidence to be insufficient to support appellant’s conviction.

Pickering, 596 S.W.2d at 129.

The State, in its brief, cites Allen v. State, 651 S.W.2d 267 (Tex.Crim.App.1983), as controlling in the present case. In Allen, the appellant was convicted of murdering his three year old step-son. The child’s death was the result of a beating that took place while the mother was at work and Allen was alone with the child. Allen suggested that it was a reasonable hypothesis that the child’s mother inflicted the fatal injuries. The Court of Criminal Appeals rejected this contention. Because the evidence showed the victim’s mother was at work when he was injured, she could not have been the guilty party. The court was satisfied that a rational trier of fact could have found Allen guilty beyond a reasonable doubt.

The evidence in our case is weaker than in either Pickering or Allen. In Pickering, the appellant admitted to hitting the child. Furthermore, the experts testified that the internal injuries (a lacerated colon) were not likely to have been caused by an accident. The Court said that the appellant’s confession to hitting the child was not sufficient to show that he had caused the more serious injuries.

In our case, the evidence is weaker for several reasons. First, none of the experts could rule out an accidental death. Second, the presence of other injuries consistent with child abuse does not rule out accidental death because the experts who testified could not tell when, in relation to the fatal injuries (subdural hematoma and hemorrhaging around the pancreas), the other injuries (contusions) occurred. These injuries could have occurred at a different time from the injuries which caused death. In fact, these injuries could be consistent with attempts to revive the child either by paramedics or others in the home. Finally, in our case the appellant was alone with the victim for only five to ten minutes. Neither expert could say when the fatal injury occurred. They could only give a range of May 17th to May 21st. In Allen the injury occurred while the appellant was alone with the child. In our case, numerous people had contact with the child during the time the fatal injuries might have occurred. In a case in which we do not know when an injury occurred we cannot assume that it took place during a brief ten minute span out of a possible four days. The evidence at trial was as a matter of law insufficient to support appellant’s murder conviction.

Accordingly, I would sustain appellant’s ground of error and reverse the judgment of the trial court. Double jeopardy law bars reprosecution of a criminal case in which the evidence at trial was insufficient as a matter of law. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).


source: Caselaw Access Project

author: ELLIS, Justice.

license: Public Domain

text:
    Michael Patrick MAXWELL, Appellant, v. STATE of Texas, Appellee.
    No. B14-83-200-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 29, 1984.
    Discretionary Review Granted Nov. 24, 1984.

      Barry O’Keefe, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, Michael Patrick Maxwell, appeals from a judgment of conviction for the offense of burglary of a habitation. At trial on August 27, 1979, the court appointed counsel for appellant pursuant to Tex. Code Crim.Proc.Ann. art. 26.04 (Vernon 1966); appellant waived the ten days which Article 26.04(b) allowed his attorney to prepare for trial; appellant waived indictment and entered a plea of guilty to the offense of burglary of a habitation. The court deferred adjudication of appellant’s guilt, placed him on probation for five years and assessed a fine of three hundred dollars.

Subsequently, on February 26, 1981, the State filed a Motion to Adjudicate Guilt, alleging that appellant failed to report to his probation officer, pay supervision fees, and to reimburse Harris County for compensation paid to his appointed attorney. On February 14, 1983, appellant appeared in court without counsel, and the judge reset the case for February 21, 1983. On February 21,1983, the trial court appointed new counsel for appellant. On February 24, 1983, after conducting a hearing, the court, for the above reasons, found that appellant had violated the terms of his probation, adjudicated his guilt, and assessed punishment at twenty years in the Texas Department of Corrections.

Appellant brings five points of error on appeal. In points of error one and two, appellant claims that the trial court erred in adjudicating appellant’s guilt and conducting a hearing on punishment without giving appellant’s attorney (1) adequate time or (2) ten days to prepare for trial. In points of error three and four, appellant alleges that the trial court erred in failing to withdraw or reject appellant’s guilty plea because it became apparent that the plea was not made (3) intelligently or (4) voluntarily. Point of error five asserts that the trial court erred in not rejecting or withdrawing appellant’s plea because the court did not carry out its bargain that it would not exceed the agreed recommended punishment. We disagree with appellant’s points of error and affirm.

Appellant urges that Tex.Code Crim.Proc.Ann. art. 26.04(b) (Vernon 1966) requires that his appointed counsel have at least ten days to prepare for the hearing on the State’s Motion to Adjudicate Guilt and assessing punishment. We disagree.

In Hill v. State, 480 S.W.2d 200 (Tex.Crim.App.1972), the Court of Criminal Appeals held that Article 26.04(b) does not apply to a hearing on a Motion to Revoke Probation. Tex.Code Crim.Proc.Ann. art. 42.12 § 3b (Vernon 1979), which governs Motions to Revoke Probation, provides that counsel shall be appointed “in accordance with Articles 26.04 and 26.05 of this Code.” The Court in Hill said that this reference applied only to the circumstances in which counsel is appointed and did not include the ten day trial preparation requirement of Article 26.04(b).

The other justices on this panel agree with the majority opinion in Hill. Although I disagree with its reasoning, we are bound by the Hill decision. If I were not so bound, I would follow the dissenting opinion of Presiding Judge Onion in the Hill case and hold that the ten day trial preparation requirement of Tex.Code Crim. Proe.Ann., art. 26.04(b) (Vernon 1966) applies to probation revocation and similarly to a hearing on a Motion to Adjudicate Guilt and assessing punishment.

However, the rule of Hill dictates that because Article 42.12, § 3d, which sets forth the procedure for deferred adjudication, does not mention Article 26.04, the ten day requirement does not apply to a hearing on a Motion to Adjudicate Guilt and assessing punishment. We overrule points of error one and two.

Next, appellant contends that the trial court committed reversible error by failing to offer appellant the opportunity to withdraw his guilty plea “when the court decided to break the promise previously made to appellant by the court that the court would not exceed the agreed recommendation as to punishment” and because this change made it clear that appellant’s plea was not given intelligently or voluntarily. We disagree.

First, the trial court did not reject a plea bargain. On August 27, 1979, the court followed the plea bargain recommendation to defer adjudication of guilt and place appellant on five years probation. The court did not assess punishment until after the hearing on the Motion to Adjudicate Guilt on February 24, 1983. At that time, appellant rejected a second plea bargain offered by the State; therefore, no plea bargain was in effect at the time of sentencing.

Second, appellant had no right to withdraw his plea when the State filed its Motion to Adjudicate Guilt. Pierce v. State, 636 S.W.2d 734 (Tex.App.-Corpus Christi 1982, no pet.). See McNew v. State, 608 S.W.2d 166 (Tex.Crim.App.1980); Walker v. State, 557 S.W.2d 785 (Tex.Crim.App.1977). Whether to allow an accused to withdraw his plea is within the discretion of the trial court. Jackson v. State, 590 S.W.2d 514 (Tex.Crim.App.1979). Appellant has shown no abuse of discretion here. We overrule points of error four, five and six.

Accordingly, we affirm the judgment of the trial court.


author: DRAUGHN, Justice.

text:
    Donald Ray THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-487-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 29, 1984.
    Discretionary Review Refused Dec. 19, 1984.

      Barbara Baruch, Houston, for appellant.
    Calvin Hartman, Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Donald Ray Thomas appeals his conviction of rape for which his enhanced punishment was set at life imprisonment. In the first of four grounds of error appellant contends that the trial court abused its discretion by denying his motion to reopen with additional testimony from a tardy witness. We agree with this contention. The judgment is reversed and the cause remanded.

The record indicates that appellant and the prosecutrix were involved in an extended street fight, which was witnessed by several people. The prosecutrix testified that appellant took her to a nearby apartment where he raped her. Several other witnesses testified, however, that they observed appellant and the prosecutrix before and after their entry into the apartment, and that the prosecutrix did not appear to have been coerced. The jury decided issue of coercion against appellant and found him guilty of rape.

During the trial, at approximately 4:50 p.m. on Tuesday, May 24, 1983, appellant called a witness, Pebbles Hudson (Pebbles) to testify in his behalf. Because of the late hour, the trial judge recessed until the next morning. He did, however, have Pebbles sworn in as a witness and instructed her to return at 9:45 the next morning. Pebbles did not appear at the prescribed time on Wednesday morning. Appellant’s counsel then requested permission to briefly leave the courtroom in order to locate the witness and requested a writ of attachment for her, but both requests were denied. The court also refused to permit appellant’s counsel to record what Pebbles’s testimony would have been. Paced with these rulings by the court, the defense rested, both sides closed, and the jury was excused so the charge could be prepared.

While the jury was recessed, two events occurred. First, appellant’s counsel made an offer of proof indicating what Pebbles Hudson would have testified to. The offer disclosed that Pebbles would testify that she was in the apartment where the rape took place when appellant and the prosecu-trix arrived. She spoke with them before they went into the bedroom and remained in the apartment for a period of time thereafter. Pebbles did not hear or observe the prosecutrix scream, “holler,” request assistance, or attempt to leave. In her opinion, the prosecutrix appeared friendly and willing to be with appellant.

After appellant’s counsel made the offer of proof, but before the jury was reconvened or the charge was read, the missing witness, Pebbles, appeared in the courtroom. Whereupon appellant’s counsel immediately requested permission to reopen the case. After questioning Pebbles about her reasons for being late and her prior record, the court denied the motion to reopen.

In his first ground of error, appellant argues that the refusal to reopen was reversible error. Article 36.02 of the Code of Criminal Procedure provides that the court shall allow testimony to be introduced any time before the argument of a case is concluded if it appears it is necessary to a due administration of justice. Although the decision to reopen is in the trial court’s discretion, this discretion is not unlimited. Rather, the court must reopen the case when the following conditions are met: (1) the witness must be present and ready to testify; (2) the request to reopen must have been made before the charge was read to the jury and final arguments were made; and (3) the judge must have had some indication of what the testimony would be, and must have been satisfied that the testimony was material and bore directly on the main issues in the case. Scott v. State, 597 S.W.2d 755, 757-58 (Tex.Crim.App.1979); Vital v. State, 523 S.W.2d 662 (Tex.Crim.App.1975); Meeks v. State, 135 Tex.Cr.R. 170, 117 S.W.2d 454 (1938). Of course, if there is a showing that the additional testimony would have resulted in an impediment to the trial or interfered with the orderly administration of justice, the judge could properly refuse to reopen even if the above conditions were met. However, absent such a showing, the court abuses its discretion by refusing to reopen to permit such relevant testimony. This is true even though the testimony may not withstand cross-examination. Potential weakness in the testimony should not preclude the jury as the fact-finder from evaluating it. The proper standard should be whether the proffered testimony is relevant to a main issue of the case and not whether it may be discredited or weakened by the opposing trial counsel.

In this case, Pebbles Hudson was present when appellant’s counsel asked permission to reopen. The motion was made before the jury reconvened for the reading of the charge and final summations. Appellant’s counsel had previously testified as to what Pebbles’s testimony would be, and such testimony suggested the defensive theory of consent. Under these circumstances, we find that appellant established a proper ease which warranted the court’s reopening for this additional testimony.

The State, however, argues that appellant’s counsel’s “offer of proof” was an improper method of bringing the evidence to the attention of the court, and they contend that this unsworn statement by defense counsel did not properly preserve error. We disagree. Article 40.09(6)(d)(l) of the Code of Criminal Procedure specifically provides for less formal and alternative “offers of proof.” One of which, provides that the court may, in its discretion, permit counsel to make a concise statement specifying what the excluded testimony would show, and this statement would be acceptable on appeal as establishing the content thereof. This is precisely what the court did here and it properly preserved the matter for our consideration.

As a final point, there is no showing in this case that reopening to allow the additional testimony would have brought about serious delay nor that it would have interfered with the administration of justice. Indeed, in our opinion, it would have promoted the ultimate administration of justice goal: to afford a full and fair hearing to the accused. We are also mindful and appreciative of the concern for efficient use of the jury’s time by the trial courts. However, we find that the additional delay which might have been experienced by the court and jury here would have been warranted in order to insure a fair trial. Inasmuch as the critical test of relevancy was met by the proffered testimony, we find that the court should have allowed the defendant to reopen with it. In view of our disposition of the case on this first ground of error, we need not discuss appellant’s remaining grounds.

The judgment is reversed and the cause remanded.


author: MURPHY, Justice.

text:
    Donald Anthony BEDDOE, Appellant, v. The STATE of Texas, Appellee.
    No. C14-82-830-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 5, 1984.
    Discretionary Review Granted Nov. 21, 1984.
    Roy L. Fuller, Daniel Prashner, Houston, for appellant.
    Calvin Hartmann, Janet Militello, Intern, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

This is an appeal from a conviction for burglary of a habitation with intent to commit theft pursuant to Tex. Penal Code Ann., § 30.02 (Vernon 1974). Trial was to a jury which assessed punishment at ten (10) years in the Texas Department of Corrections.

Appellant’s sole ground of error contends the trial court erred in overruling his motion to dismiss the indictment on the ground that he was denied his right to a speedy trial.

The evidence adduced at trial reveals that Modesto Botas’s apartment was burglarized on September 5, 1980. A felony complaint charging appellant with burglary of a habitation and theft was filed on September 27, 1980. Both parties stipulated that September 27, 1980 was the date of commencement of the criminal action under the provisions of the Speedy Trial Act, Tex. Code Crim.Pro.Ann., art. 32A.02 (Vernon Supp.1982-1983). A warrant was issued on that same day and the Houston Police Department delivered the warrant to the Harris County Sheriff’s Department. Carolyn Pollock, a records custodian employed at the Harris County Criminal Warrants Division, testified that the warrant was entered into the T.C.I.C. and N.C.I.C. Networks, but that no other attempts to serve the warrant were made by the Warrant Division. On October 6, 1980 appellant was indicted. However, appellant was not arrested until July 2, 1982 when he was picked up for a traffic violation in Pecos, Texas. At that time the Sheriff’s Department sent a telecopy of the warrant to the Department of Public Safety in Pecos to expedite appellant’s arrest. It is undisputed that the state was not ready for trial within the 120 days time frame prescribed by the Speedy Trial Act, Tex.Code Crim. Proe.Ann., art. 32A.02, Sec. 1(1) (Vernon Supp.1982-1983).

The state contends that the period from September 27, 1980 through July 2, 1982 should be excluded from the 120 day time frame because the appellant’s location was unknown and the state had been unable to determine appellant’s location by the use of due diligence. With the exclusion of that time period provided for in Section 4(4)(B), Tex.Code Crim.Proc.Ann., art. 32A.02, Sec. 4(4)(B) (Vernon Supp.1982-1983), and the appellant’s waiver of his speedy trial rights for the time subsequent to his arrest on July 2, 1982, the state clearly would have been ready for trial within 120 days after commencement of the criminal action.

A review of the record reveals that the state failed to discharge its burden of showing an exclusion under Section 4(4)(B). George Lambert, the chief prosecutor for the 185th District Court, testified that he knew of no attempt to serve the warrant on appellant. Carolyn Pollock, of the Criminal Warrants Division, testified that all the Sheriff’s Department did was to log the warrant information into the T.C.I.C. and N.C.I.C. Networks; she knew of no efforts to serve the warrant on appellant. The warrant issued on September 7, 1980 was not executed until appellant was stopped in Pecos, Texas for a traffic violation and the Department of Public Safety discovered the outstanding warrant. We conclude the state has failed to discharge its burden of proving the use of due diligence under Section 4(4)(B). Lee v. State, 641 S.W.2d 533, 536-537 (Tex.Crim.App.1982).

The state further argues that appellant’s statutory right to a speedy trial has not been abrogated because the caption of Chapter 32A, Tex.Code Crim.Proe.Ann.Ch. 32A (Vernon Supp.1982-1983), fails to provide a reasonable caption reader with fair notice that the remedy for violation of the Act is discharge, and is for that reason unconstitutional. Tex. Const, art. Ill, § 35 (1869). We disagree.

Prior to the enactment of Chapter 32A, an accused had two constitutional speedy trial rights: a federal constitutional right guaranteed by the Sixth Amendment of the United States Constitution and a state constitutional right guaranteed by Article I, § 10 of the Texas Constitution. Ostoja v. State, 631 S.W.2d 165, 167 (Tex.Crim.App.1982). The only possible remedy for a violation of these rights was the dismissal of prosecution. Turner v. State, 545 S.W.2d 133, 139 (Tex.Crim.App.1977).

On July 1, 1978, the Speedy Trial Act became effective and established a statutory right to a speedy trial. The caption of the Act reads:

An Act relating to a speedy trial of criminal cases; amending the Code of Criminal Procedure, 1965, as amended, by adding Chapter 32A, by adding Articles 17.151 and 28.061, and by amending Articles 29.02 and 29.03; providing for an effective date; and declaring an emergency. (Emphasis added.)

Article III, Sec. 35 of the Texas Constitution, provides in pertinent part:

... But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.

The critical question for determining adequate compliance with Article III, Sec. 35 is whether the caption “put any reasonable caption reader on notice that he will find new matter in the body of the bill.” Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189, 194 (1958); Beck v. State, 583 S.W.2d 338, 345 (Tex.Crim.App.1979); Buxton v. State, 646 S.W.2d 445, 446 (Tex.Crim.App.1983).

In interpreting Art. Ill, Sec. 35 the courts have consistently held that the caption of an act should be liberally construed so as to uphold its validity. White v. State, 440 S.W.2d 660 (Tex.Crim.App.1969).

Chapter 32A modified the Code of Criminal Procedure by adding Article 28.061, TEX.CODE CRIM.PROC.ANN. art. 28.061 (Vernon Supp.1982-1983), which reads as follows:

Art. 28.061 Discharge for Delay
If a motion to set aside an indictment, information or complaint for failure to provide a speedy trial as required by Article 32A.02 is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction.

The addition of Article 28.061 to the Code of Criminal Procedure established a statutory remedy identical to the remedy afforded in the case of a violation of a defendant’s constitutional speedy trial rights.

The caption set forth above cannot be construed as obscuring the purpose of Chapter 32A from legislators or citizens and is sufficient to give an average reasonable caption reader notice that he will find new matter in the body of the bill. Providing a sanction for failure of the state to provide the “speedy trial of criminal cases” has a logical relationship to the general purpose of Chapter 32A. The caption tells the reader that the Act is to amend the Code of Criminal Procedure and this word means a change in the law. See Ex parte Crisp, 661 S.W.2d 944, 950 (Tex.Crim.App.1983). We, therefore, hold the caption of Chapter 32A does not violate the provision of Article III, Sec. 35 of the Texas Constitution.

Accordingly, the court erred in refusing to grant the motion to set aside the indictment under Article 32A.02.

The judgment is reversed and remanded with instructions to dismiss prosecution.


text:
    Harley Stephen BALLENGER, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-629-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 19, 1984.
    Discretionary Review Granted Feb. 27, 1985.

      H.L. Stu Stewart, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before PAUL PRESSLER and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, Harley Stephen Ballenger, appeals from a judgment of conviction of the offense of driving while intoxicated. Appellant entered a plea of not guilty and proceeded to trial by jury. The jury found him guilty and assessed a punishment of 730 days confinement in the Harris County jail, which was probated for two years and a fine of $500.00.

In his only ground of error, appellant claims that the trial court erred in denying appellant’s motion to set aside the complaint pursuant to Tex.Code Crim.Proc. Ann. art. 32A.02 (Vernon Supp.1984) (Speedy Trial Act). We find that the trial judge abused his discretion in finding that the State complied with the requirements of the Speedy Trial Act; therefore, we reverse the judgment of the trial court.

Appellant was arrested on December 23, 1982, and charged with the offense of driving while intoxicated. The first setting, for arraignment, was December 30, 1982. On that day, appellant appeared, entered a plea of not guilty, and signed an agreed reset form to reset the case for trial on March 2, 1983. The State dismissed its case on March 2, because its only witness was unavailable. The witness was in surgery for injuries sustained when appellant struck her with his car. The prosecutor told appellant’s attorney that the case would be refiled the next day or shortly thereafter. His attorney was telephoned when the case was refiled on March 4, 1983.

Beginning on June 9, 1983, the Harris County Sheriff made four attempts to arrest appellant at his home. The last attempt was on June 14, 1983, the same day appellant came in to make bond on the second information. At his appearance on June 21,1983, appellant agreed to reset the cause to August 24, 1983.

The State filed announcements of ready for trial on June 21,1983 and July 27,1983. On August 24, 1983, the trial was continued for one day because appellant’s attorney was "in another trial. On that day, appellant’s attorney filed a Motion to Dismiss based on a violation of the Speedy Trial Act. The motion was later denied after a hearing before the court. The trial was continued daily until September 6, 1983, when it was finally tried.

Through his sole ground of error, appellant asserts that 187 days elapsed from the date of appellant’s arrest until the date the State filed a written announcement of ready and 244 days elapsed from the appellant’s arrest until the date set for trial. Appellant claims that only one day is ex-eluded from the time period. Specifically, he asserts March 3, 1983 is excluded since the charge was dismissed and the same offense was refiled one day later. Tex. Code Crim.Proc.Ann. art. 32A.02, sec. 4(7).

The State asserts that it has met its burden under the Speedy Trial Act. The State claims that there are three applicable exclusions under the Speedy Trial Act: art. 32A.02, Sec. 4(3), Sec. 4(5), and Sec. 4(7). These exclusions would apply to the agreement to reset trial, the absence of the witness, and the dismissal and refiling of the charge.

The state has 90 days after the commencement of a criminal action to announce ready for trial if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for more than .180 days. Tex.Code Crim.Proc.Ann. art. 32A.02, Sec. 1(2). A criminal action commences when an information is filed against a defendant. Tex.Code Crim.Proc. Ann. art. 32A.02, Sec. 2. The criminal action commenced against appellant on December 23, 1982, the date on which he was charged with the offense of driving while intoxicated.

After the charge, seven days elapsed until the defendant entered an agreement to reset the case for trial. Those seven days are charged to the State. However, the time between December 30, 1982 and March 2, 1983, cannot be counted against the State. Tex.Code Crim.Proc. Ann. art. 32A.02, Sec. 4(3) provides for an exclusion of a period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel. In this instance the continuance was granted with the written consent of appellant.

Both parties agree that Tex.Code Crim. Proc.Ann. art. 32A.02, Sec. 4(7) would exclude March 3, 1983 from the time running against the State. Section 4(7) excludes a period of time where:

the charge is dismissed upon motion of the state or the charge is disposed of by a final judgment and the defendant is later charged with the same offense or another offense arising out of the same transaction, the period of delay from the date of dismissal or the date of the final judgment to the date the time limitation would commence running on the subsequent charge had there been no previous charge.

The record shows that the charge was dismissed on March 2, 1983 by motion of the State and appellant was later charged with the same offense refiled on March 4, 1983. We must exclude one day from the time period. The dismissal was caused by the unavailability of the State’s witness. It is unnecessary to discuss exclusion under Sec. 4(6)(A), which applies when State witnesses are unavailable, because the time has already been excluded under Sec. 4(7).

The State has failed to show an exclusion under Tex.Code Crim.Proc.Ann. art. 32A.02, Sec. 4(5) which provides for exclusion of:

a period of delay resulting from the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resists being returned to the state for trial.

We find that due diligence on the part of the State was lacking. The information was refiled and a warrant which contained appellant’s correct address was issued for appellant’s arrest on March 4, 1983. The first attempt by the State to serve the warrant on appellant was not made until June 9, 1983, over ninety days from the refiling of the case.

The Court of Criminal Appeals considered the question of due diligence under Tex.Code Crim.Proc.Ann. art. 32A.02, Sec. 4(5) in Lyles v. State, 653 S.W.2d 775 (Tex.Crim.App.1983). In Lyles, for unknown reasons, the sheriff rejected the appellant’s surety bond. The State made no further efforts to obtain another warrant or to take any action to obtain the presence of the appellant within 90 days. The court held that the delay could have been avoided “by simple means, not requiring any strenuous exercise of due diligence by the state.” The court concluded that securing the presence of the appellant was a burden which fell upon the prosecution and that it failed to meet that burden. Lyles, 653 S.W.2d at 779.

In our case, the State failed to meet its burden under the Speedy Trial Act. The delay could have been avoided if the attempts to serve the warrant had started sooner. More than 90 days had passed before the State ever attempted to serve appellant with a warrant.

In Beddoe v. State, 681 S.W.2d 114, (Tex.App.-Houston [14th Dist.] 1984), this court held that the State failed to discharge its burden of showing an exclusion under Tex. Code Crim.Proc.Ann. art. 32A.02, Sec. 4(4), which requires due diligence if the state is requesting an exclusion of time in a situation where the defendant is absent because his location is unknown. In Beddoe, there was no attempt to serve the warrant. In fact, the Sheriff's Department merely entered the warrant information into its computer.

In our case, as in Beddoe, there was no attempt to serve the warrant during the relevant time period. Section 4(5) requires due diligence where the defendant’s location is known. We would expect a stronger showing of due diligence where the defendant’s location is known and Sec. 4(5) applies. The State has failed to show due diligence that would satisfy Sec. 4(5). Because of the failure of the State to comply with the Speedy Trial Act, we reverse the judgment of the trial court and order prosecution dismissed.

ROBERTSON, J., did not participate.


author: SEARS, Justice.

text:
    Larry Joe JACOBS, Appellant, v. STATE of Texas, Appellee.
    No. C14-81-504-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 12, 1984.
    Discretionary Review Refused Nov. 14, 1984.

      Frumencio Reyes, Houston, for appellant. !

      Ray Elvin Speece, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   SEARS, Justice.

Appellant, a juvenile, was certified to stand trial as an adult, was convicted of capital murder and was assessed the mandatory sentence of life imprisonment. We affirm the conviction.

The central issue is whether the Juvenile Division of the Houston Police Department (H.P.D.) is a juvenile detention facility designated by the Juvenile District Courts as required by TEX.FAM.CODE ANN. § 51.-09 (Vernon Supp. 1982-1983). We hold that it is.

Appellant was convicted for the capital murder of Bernard C. Bley. Bley and a companion drove to an area known as Third Ward, in Houston, to buy drugs. Appellant and another youth approached the car and one of them asked Bley and his companion if they wanted to buy some drugs. At some point a controversy developed, Appellant pulled a gun, shot Bley and grabbed his money.

Approximately one week later, two H.P.D. plainclothes officers, Officer Ze-ringue of the Juvenile Division and Officer Roscoe of the Homicide Division, received information that Appellant had participated in a similar offense. The officers then went to Appellant’s home and were invited into the house by one of his sisters. Officer Zeringue asked Appellant’s mother for permission to search for a gun in Appellant’s room. He explained that she did not have to consent to a search without a warrant and then presented the consent to search form which she signed. Appellant was present at all times during these events.

Appellant led the officers to his bedroom and was in the room while the officers conducted the search. The officers found a small quantity of marijuana and several rounds and clips of ammunition. Appellant was arrested for possession of marijuana.

Appellant was read his juvenile warnings and, after indicating he understood them, was taken directly to the Juvenile Division of H.P.D. Approximately one hour later he was taken before a Magistrate who also read his warnings to him. Appellant again indicated he understood them and was returned to the Juvenile Division of H.P.D. for questioning about Bley’s murder. Appellant and his mother consented for him to take a polygraph test, which he failed. Approximately thirty minutes later, Appellant confessed to killing Bley.

Officer Zeringue took notes as Appellant confessed and then typed the statement. Appellant read the statement and made all necessary corrections. Officer Zeringue then took Appellant before another Magistrate and presented the statement and a form entitled “Magistrate’s Determination of Juvenile’s Competency to Make Confession.” The Magistrate, alone with Appellant, read each warning to him and waited for an acknowledgment or response. After the Magistrate was satisfied that the statement was voluntarily given and that the facts contained therein were true, Appellant signed each page of the statement. The Magistrate signed the last page.

Appellant presents six grounds of error. In ground of error six, he argues the trial judge committed reversible error by not filing his findings of fact and conclusions of law as to the voluntariness of Appellant’s statement. We originally abated this appeal and directed the trial judge to file his findings and conclusions as required by TEX.CODE CRIM.PROC.ANN. art. 38.22 § 6 (Vernon 1979). See Jacobs v. State, No. C14-81-504CR (Tex.App.-Houston [14th Dist.] March 24, 1983, no pet.) (not reported). Although the trial judge was defeated in an election held in the interval between the date of judgment and the date of our original opinion, he still had the authority to file his findings and conclusions in connection with this case, see Crawford v. Crawford, 315 S.W.2d 190 (Tex.Civ.App.-Waco 1958, no writ), and did so on November 3, 1983. Those findings and conclusions were included in a Supplemental Transcript filed with this court on December 1, 1983. Consequently, we now overrule ground of error six.

In ground of error five, Appellant alleges that the search of his bedroom was illegal because it was made without a warrant and without his consent. He alleges a parent cannot waive a juvenile’s rights. Ground of error four assigns error in overruling a Motion to Suppress and in admitting the evidence found during the search. Both arguments are without merit.

There is no question that neither probable cause nor a search warrant is necessary if consent to search is given. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Kolb v. State, 532 S.W.2d 87 (Tex.Crim.App.1976). Further, contrary to Appellant’s assertion, the Texas Court of Criminal Appeals passed directly on the issue of whether a parent can consent to a search of her child’s bedroom in Sorenson v. State, 478 S.W.2d 532 (Tex.Crim.App.1972). The juvenile defendant in Sorensen was convicted of possession of marijuana. Like Appellant in our case, he lived at home. The court found that the defendant had no “reasonable expectation of privacy” in his bedroom, that his mother had a right to be in his bedroom, that she could consent to the search of his bedroom and that her consent obviated the need for a search warrant. Further, the court found her consent was binding upon everyone who had rights in the bedroom. Id. at 534-35 (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Grounds of error five and four are overruled.

In ground of error one Appellant alleges that the trial court erred when it overruled his Motion to Suppress the Confession because it was obtained as the result of an illegal arrest. Appellant argues that the arrest was illegal because the police officers did not have probable cause to arrest him for Bley’s killing. He also argues that the marijuana was used as a pretext to arrest him. Finally, he claims that the search was illegal because the police officers knew the murder weapon had already been recovered but still used the pretext of looking for it to obtain consent to search. We find no merit in any of these arguments, which we will address in reverse order.

On October 27, another officer told Officer Roscoe that a gun had been recovered on October 24 from a man arrested in the same vicinity as where Bley was murdered. Although that man knew Appellant and was holding his gun at his request at the time he was arrested, he told the arresting officers that he did not know the man who had given him the gun. Officer Roscoe checked out the gun from the Property Room on October 27 and took it to the Firearms Division in order to have tests run on the gun for ballistics comparison with the slug removed from Bley’s body. Officer Roscoe learned of the results of the tests on October 28, approximately two hours after Appellant was arrested.

The man who was arrested on October 24 was arrested again on October 28, in connection with Bley’s murder. At that time he gave a statement retracting his previous remark, that he did not know who had given him the gun, and admitting that the gun belonged to Appellant. Appellant was already in police custody when this statement was made. Thus, we find no “pretext search” occurred.

Further, no pretext arrest occurred. The police officers were justified in arresting Appellant for possession of marijuana after finding it in a box under the mattress of his bed. See Sorensen, 478 S.W.2d at 534.

Finally, the arrest was not illegal due to the lack of probable cause to arrest him for capital murder. Appellant was initially arrested for possession of marijuana, not for capital murder. We find the statement was given pursuant to a legal arrest and overrule ground of error one.

Appellant also attacks the introduction of his statement in ground of error two. He argues the trial court erred when it denied Appellant’s Motion to Quash Indictment for the court’s alleged failure to provide Appellant with his rights under TEX.PAM.CODE ANN. § 51.09 (Vernon Supp. 1982-1983). Section 51.09 provides that a child’s statement is admissible provided a Magistrate gives him certain warnings and the child knowingly, intelligently and voluntarily waives the rights contained in the warnings. Appellant contends he did not waive the statutory rights contained in the warnings which were read to him.

We first note that Appellant did not seek the appropriate relief. Even if Appellant’s statement was not admissible, that fact would not be a proper ground for quashing the indictment. Appellant should have moved to suppress the confession on the basis of a § 51.09 violation. Nevertheless, we have reviewed the record to determine if § 51.09 was violated and find it was not.

The Magistrate who examined Appellant testified that he read Appellant’s rights under the Family Code verbatim, paraphrased each right and then asked Appellant if he had any questions. After satisfying himself that Appellant understood his rights, the Magistrate specifically inquired whether Appellant was coerced into making the statement. Again, after satisfying himself that Appellant voluntarily gave the statement, and knew and understood the consequences of making the statement, he reviewed the statement sentence by sentence or phrase by phrase to make sure Appellant meant what he said and that the statement was true. Appellant indicated that the statement was true and correct. After the Magistrate told Appellant he did not have to sign the statement, he nevertheless signed each page of it. The Magistrate testified that he would not have allowed Appellant to sign it had he not believed it was voluntarily given.

After Appellant signed the statement, the Magistrate completed the form entitled “Magistrate’s Determination of Juvenile’s Competency to Make Confession.” The Determination, which was introduced into evidence, recited the Magistrate’s finding, based on his interview with Appellant, that Appellant knowingly and voluntarily signed the statement after receiving all proper warnings.

We hold that this testimony and the Determination supports the trial court’s finding that the confession was knowingly, intelligently and voluntarily given after Appellant was apprised of and affirmatively waived his rights under § 51.09. See Carter v. State, 650 S.W.2d 793 (Tex.Crim.App.1983) (en banc) (certification of knowing and voluntary waiver of rights complies with requirements that Magistrate also certify intelligent waiver of rights); Darden v. State, 629 S.W.2d 46 (Tex.Crim.App.1982).

The final ground of error, number three, concerns the trial court’s denial of the Motion to Quash Indictment for the alleged failure to provide Appellant with his rights under TEX.FAM.CODE ANN. § 52.02 (Vernon 1975). Section 52.02 provides in pertinent part:

(a) [A] person taking a child into custody, without unnecessary delay and without first taking the child elsewhere, shall do one of the following:
(3) bring the child to a detention facility designated by the juvenile court;
⅜ ⅜ * * * *

We again note that Appellant did not seek the appropriate relief. Nevertheless, we have reviewed the record and conclude that § 52.02 was not violated.

As previously explained, this appeal originally was abated in order to allow the trial judge to enter his findings of fact and conclusions of law. In finding number eight, the trial judge took

judicial notice, based on his personal experience and knowledge thereof and upon common published official designation of said facility by the District Judges of Harris County, Texas, as a juvenile detention facility as specified in § 51.12(b), Texas Family Code, that the Juvenile Division of the Houston Police Department was at that time such a designated juvenile detention facility.

This finding has not been challenged via a supplemental brief. However, it is incorrect because the trial court found that the district judge had designated the Juvenile Division of H.P.D. as a juvenile detention facility. We find that a criminal district court does not have the authority to make such a designation.

While we recognize that a juvenile court is a district court, § 52.02 requires the designation of a juvenile detention facility be made by the juvenile courts. Therefore, this court takes judicial notice that the three Harris County juvenile courts have designated the Juvenile Division of H.P.D. as ¾ juvenile detention facility. See James v. State, 546 S.W.2d 306 (Tex.Crim.App.1977); Harper v. Killion, 345 S.W.2d 309, 312 (Tex.Civ.App.-Texarkana), aff'd, 162 Tex. 481, 348 S.W.2d 521, 523 (1961). Ground of error three is overruled.

The conviction is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Phillip Michael BEIER, Appellant, v. STATE of Texas, Appellee.
    No. A14-82-720-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 12, 1984.
    Review Granted Oct. 3, 1984.

      Charles R. Young, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
   J. CURTISS BROWN, Chief Justice.

Phillip Michael Beier (Beier or appellant) was charged with selling obscene material as a party to the offense under Tex.Penal Code Ann. § 7.02 (Vernon 1974). Beier was found guilty by a jury. The court imposed punishment of fifteen days confinement and a one thousand dollar fine.

Members of the Houston Police Department had been informed by an employee of the Ball Park bookstore that the manager would arrive at a specific time to collect the day’s receipts. At the predicted time Beier arrived, carrying a ziplock style bank bag. Beier was observed, behind the counter, taking money from the register and clearing the machine. One of the police officers attempted to purchase a film while Beier was at the register, but was told to wait. As Beier left the store a second officer purchased a film titled “The Men's Room”. Both films were contained in boxes which had pictures from the respective films on the covers. Exhibits in the record reveal the walls of the store were shelved with large quantities of substantially similar products. The cover pictures all depict various sexual acts and acts of sodomy.

“The Men’s Room” was viewed in its entirety by one of the vice officers and by a member of the District Attorney’s office. The vice officer presented an affidavit to a magistrate reciting the facts above, and that he had viewed the film. The magistrate issued a warrant for appellant’s arrest. When Beier was searched upon arrest, two slips of paper were found on his person. One had names and phone numbers of employees, and the other was a memo to instruct clerks to cooperate with vice officers.

The jury was instructed on the elements of the offense, and on the requisites of intentional, knowing behavior. They were also instructed on the law of parties and circumstantial evidence. There was no instruction given on Tex.Penal Code Ann. § 43.23(e) (Vernon Supp.1982-1983), the presumption of knowledge in sale of obscene material.

Appellant has stated nine grounds of error. Beier asserts there was insufficient evidence proving the film was obscene under law or that he was a party to the offense. He further asserts that there were several procedural deficiencies: (1) that the jury panel was improperly shuffled; (2) that he was improperly denied pre-trial discovery of the state’s evidence; and (3) that the slips of paper were imper-missable hearsay. Additionally, Beier argues that the prosecutor made improper statements, that the arrest warrant was illegally obtained, and tainted evidence introduced.

It should be noted that the arrest warrant was sound. The testimony of the affidavit was based upon explicit personal knowledge of the contents of the film, and the film itself was purchased, not seized. Appellant argues extensively that the Fourth Amendment of the Constitution of the United States invalidated the arrest, and introduction of related evidence. There was neither a search nor a seizure in this case. The arrest was properly based on personal knowledge of a criminal offense.

We have viewed the film, “The Men’s Room”, and find it factually and constitutionally obscene. Taken as a whole, it lacks any serious literary, artistic, political, and scientific value. Appellant argues that since the film is homosexually oriented, and since he produced members of the gay community who did not find it offensive, that it is not obscene. Whether sexual material is sufficiently offensive to be obscene is a question of fact. The trier of fact determines whether the average person in the community, as he perceives him, would be offended by the material. Gholson v. State, 667 S.W.2d 168 (Tex.App.-Houston [14th Dist.], 1983, pet. granted). That several avowed homosexuals did not find this film obscene does not prevent a jury from deciding it would be offensive to the average member of the community. The film, “The Men’s Room”, is factually and constitutionally obscene. Appellant’s ground of error is overruled.

Whether or not Beier can be convicted as a party to the sale of this obscene material is a more difficult question. We have been instructed by the Texas Court of Criminal Appeals in Davis v. State, 658 S.W.2d 572 (Tex.Crim.App.1983), that knowledge of content cannot be presumed in the sale or distribution of obscene materials. The law of parties as applied in obscenity prosecutions must be carefully examined to ensure this presumption is not being resurrected indirectly.

A person is criminally responsible for an offense committed by another when he acts with intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission. Romo v. State, 568 S.W.2d 298, 303 (Tex.Crim.App.1977); Tex.Penal Code Ann. § 7.02(a)(2) (Vernon 1974). In prosecution for obscenity, this does not include conduct which is merely incidental to its promotion. Acevedo v. State, 633 S.W.2d 856, 859 (Tex.Crim.App.1982). To be an aider and abettor one must have knowledge of some illegal activity. To impose penal sanctions requires that the state prove one has a culpable mental state. William Sommerville & Son, Inc. v. Carter, 571 S.W.2d 953, 957 (Tex.Civ.App.-Tyler 1978), aff'd on other grounds, 584 S.W.2d 274 (Tex.1979). In prosecution of obscenity scienter, or guilty knowledge, distinguishes conduct which is incidental to its promotion from conduct which may be condemned. Davis, 658 S.W.2d at 578.

When the law of parties is applied to an obscenity prosecution, the state must still prove the accused had guilty knowledge; that is, intent to promote or assist some crime. This proof is usually a pattern of behavior from which intent to further a crime may reasonably be inferred. “Reliance may be placed on actions of the parties which show an understanding and common design to do a certain act.” Tarpley v. State, 565 S.W.2d 525, 529 (Tex.Crim.App.1978). An understanding or common design may be inferred from the circumstances and need not be shown by direct evidence. Circumstantial evidence may be used to prove one is a party to an offense. Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App.1977).

It is important to distinguish an inference based on facts from an impermissable presumption. As stated in Davis, 658 S.W.2d at 580, and n. 3,

“All this opinion holds is that law enforcement officials must rely upon sufficient inferences of guilt to obtain and sustain a conviction for promoting obscene material,3 but may not, as they did in this cause, rely upon the statutory presumption to establish guilty knowledge on the part of the accused of the content and character of the obscene material.”
“3 Generally speaking, this is how the State, where it is without direct evidence of guilty knowledge, usually establishes its case beyond a reasonable doubt against the accused. Proof of knowledge and intent are usually, because of their very nature, established inferentially from the totality of the facts of the case.”

By necessity, a trier of fact must make reasonable inferences to find that an accused knew he was doing something wrong. When prosecuting a party to distribution of obscenity, knowledge of a specific transaction need not be shown. There must be evidence which would allow a reasonable fact-finder to conclude the accused had the intent to promote or assist some common undertaking to distribute obscenity-

Whether there was sufficient evidence to convict Beier as a party to distribution of obscenity is governed by Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App.1981). The relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational fact-finder could have found the essential elements of the offense beyond a reasonable doubt. Griffin, 614 S.W.2d at 159. The essential elements are that Beier intentionally and knowingly assisted a common undertaking to promote obscenity, and that distribution, exhibition, or sale of obscenity took place as part of the common undertaking. In proving a common design it is not necessary that every fact independently prove guilt as long as the verdict is reasonable, given the cumulative force of all the incriminating evidence. Wilburn v. State, 636 S.W.2d 771, 776 (Tex.App.-Corpus Christi 1982, no pet.).

The jury in this case could have reasonably concluded that Beier was the manager of the store and in control of the enterprise. The employee tip was accurate. Beier arrived with a cash collection bank bag, went behind the counter, emptied the till, and cleared the cash register. When arrested he had employee lists and a memo with instructions to employees.

The critical question is whether the state introduced sufficient evidence to establish that Beier knew the enterprise had criminal potential. Photographs in the record show the wall of the store were, both in the public area and behind the counter, covered with boxed films for sale. They uniformly depicted sexual acts and acts of sodomy. Undisputed evidence placed Beier physically on the premises. It would be reasonable for a jury to infer from the facts that Beier could see and understand the nature of the enterprise. Furthermore, the note in Beier’s possession referring to the vice squad is evidence that he was aware that his operation was illegal.

Sufficient evidence was introduced to convict Beier as a party to sale of obscenity. No impermissable presumptions were needed for conviction, and in fact, the jury was given no instruction on presumptions. Appellant’s ground of error is overruled.

Beier asserts there were several procedural deficiencies in his trial. He first contends the trial court improperly shuffled the jury panel. Beier’s counsel asked for a shuffle before the panel was brought in, and wanted to reserve that motion until after the panel was seated. The court insisted on granting the motion before seating the panel. Beier’s counsel failed to renew the motion once the panel was seated. The trial judge is free to have a panel arranged in any way he sees fit. But a party’s right to shuffle attaches the moment the panel enters the courtroom. Stark v. State, 657 S.W.2d 115 (Tex.Crim.App.1988). Beier’s counsel did not renew his motion. There was no error preserved.

Beier next contends that a pretrial hearing on a motion to discover evidence was improperly denied. A trial court is not generally obligated to allow a defendant discovery of evidence. Discovery is required only if the evidence is material to the defense of the accused. Quinones v. State, 592 S.W.2d 933, 940-941 (Tex.Crim.App.1980). Appellant did not show, and the record does not reflect, that any evidence material to his defense was withheld by the state. Appellant’s motion was properly overruled.

Beier’s final procedural ground of error is that the two slips of paper taken from him after arrest were impermissable hearsay, and should not have been admitted. The slips were not presented to prove the truth of the statements they contained. They were introduced to show Beier’s status as store manager, and his awareness of its activities. The slips thus are not hearsay but rather are direct evidence. Denton v. State, 504 S.W.2d 475, 477 (Tex.Crim.App.1974).

Finally, appellant argues that the prosecutor, in his summation to the jury, made statements about facts not in the record. Specifically, the prosecutor made a reference to the clerk who sold the film in question, and started to explain why he had not been prosecuted as a co-defendant. In the context of the record, the statement is harmless. It was immaterial to the case, and it did not tend to prove or disprove any element of the offense charged. Sanchez v. State, 622 S.W.2d 491, 493 (Tex.App.-Corpus Christi 1981), rev’d on other grounds, 628 S.W.2d 780 (Tex.Crim.App.1982). Furthermore the statement was not prejudicial to Beier’s defense. Houston v. State, 503 S.W.2d 540, 541 (Tex.Crim.App.1974). Appellant’s ground of error is overruled.

Phillip Michael Beier was properly found guilty as a party to promotion of obscenity. Appellant’s nine grounds of error are overruled. The verdict of the jury and judgment of the trial court are affirmed.


author: CANNON, Justice.

text:
    Ricardo Fernando STEELE, Appellant, v. STATE of Texas, Appellee.
    No. A14-83-160-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 19, 1984.
    Discretionary Review Refused Oct. 31, 1984.

      Ruben Guerrero, Terrence Gaiser, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

At trial, Ms. Cynthia Glass represented the State, while Ms. Jane Wynegar and Mr. Ruben Guerrero represented appellant. Appellant was convicted, by jury, of delivery of the controlled substance cocaine. The trial court assessed punishment at twenty-five years incarceration. Appellant raises three grounds of error; one ground attacks the jury charge, and two grounds attack the sufficiency of the evidence. We sustain appellant’s second ground of error and reverse. Our disposition of this appeal necessitates discussion of only ground of error two. Therefore, grounds of error one and three will not be addressed.

In his second ground of error, appellant argues that the evidence is insufficient to show that the substance delivered was cocaine. We agree.

When examining the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict. The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given testimony. Garza v. State, 622 S.W.2d 85 (Tex.Crim.App.1980). In reviewing the record, an appellate court may consider all of the evidence whether presented by the defendant or the State. Drager v. State, 548 S.W.2d 890 (Tex.Crim.App.1977). Clearly, the State must prove every element of the offense beyond a reasonable doubt. Memet v. State, 642 S.W.2d 518 (Tex.App.-Houston [14th Dist.] 1982, pet. ref’d).

The Controlled Substances Act provides, in pertinent part, that “a person commits an offense if he knowingly or intentionally ... delivers ... a controlled substance listed in Penalty Group 1.” Tex.Rev.Civ.Stat. Ann. art. 4476-15, § 4.03(a) (Vernon Supp. 1984). Cocaine is listed in Penalty Group 1, and delivery of cocaine which is, “by aggregate weight, including any adulterants or dilutants, less than 28 grams” is “a felony of the first degree.” Id. §§ 4.02(b)(3)(D) and 4.03(b).

On November 29, 1982, appellant sold a plastic bag of white powder to Houston Police Officer, K.G. Blair, for $50.00. On direct examination by the prosecutor, officer Blair’s partner, W.T. Reeves, identified the white powder as cocaine, to wit:

Q. What happened after your vehicle was approached by the Defendant in this case?
A. He sold my partner a package of white powder substance he referred to as cocaine.

Carolyn Gamble, a drug chemist from the Houston Police laboratory, testified during the trial. However, the State never elicited testimony from Gamble to establish that the white powder sold to officer Blair had been determined to be cocaine.

Article 4476-15 requires the controlled substance to be clearly identified; the guilt of the accused as well as the punishment scheme of Article 4476-15 is dependent upon the nature of the controlled substance involved. When identification of property is necessary to support a conviction, the identification must be made by competent and sufficient evidence. 25 Tex.Jur.3d Criminal Law § 3452 (1983). See Campbell v. State, 168 Tex.Crim. 520, 329 S.W.2d 875 (1959). As in Campbell, the State should have elicited testimony from the chemist to show that the white powder in question was cocaine, if so, and to show its weight, if any. 329 S.W.2d at 876.

Officer Reeves’ testimony is the only evidence in the record which even tends to identify the white powder in question as cocaine. Even if Officer Reeves’ testimony is considered to establish an extrajudicial admission of appellant, it is insufficient to prove that the substance delivered was cocaine.

“Admissions are rarely conclusive of the facts stated.” 25 Tex.Jur.3d Criminal Law § 3438 (1983). An extrajudicial admission or confession must be corroborated by other evidence tending to establish the material elements of the offense. See Brown v. State, 576 S.W.2d 36 (Tex.Crim.App.1979); Martinez v. State, 387 S.W.2d 673 (Tex.Crim.App.1965). Absent any corroborative evidence beyond Officer Reeves’ testimony, proving the white powder to be cocaine, the conviction cannot stand.

Having found the evidence insufficient to support the conviction, no further prosecution can be lodged in this case. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Bryant v. State, 574 S.W.2d 109 (Tex.Crim.App.1978).

The judgment is reversed and remanded; it is ordered that a judgment of acquittal be entered in the trial court.


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    Loucelius KIRBY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-157-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 26, 1984.
    Discretionary Review Refused Oct. 3, 1984.

      William Hicks, Dickinson, for appellant.
    Miguel Martinez, Galveston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   J. CURTISS BROWN, Chief Justice.

Loucelius Kirby, Jr. (Kirby or appellant) was charged with burglary of a building. A jury found appellant guilty, and found enhancement allegations to be true. The trial court sentenced appellant to life imprisonment.

Kirby and an accomplice were spotted by an eyewitness who saw them peering into a garage. Police arrived in less than a minute. They found that a window in the garage had been chopped out. They recovered a toolbox, a hatchet from Kirby’s accomplice, and a pistol and knife from Kirby. Kirby’s accomplice was bleeding, having cut his hand on the garage window.

In nine grounds of error appellant asserts that the indictment was fundamentally defective; that the enhancement count was void; that a void conviction was introduced in the punishment phase of trial; and that various comments on extraneous matters prejudiced the case.

Appellant asserts the indictment was defective because it did not contain the word “enter”. This exact question was considered by the Court of Criminal Appeals, en banc, and they decided such an indictment is not defective. Smith v. State, 652 S.W.2d 410, 411 (Tex.Crim.App.1983, en banc). Appellant’s ground of error is overruled.

Appellant asserts that one of his convictions for a prior burglary was void for purposes of enhancement. Apparently, Kirby plead guilty to two burglary indictments on the same day. Either the cause numbers on the judgment, or the cause numbers on the stipulations of evidence were reversed. The judgment in the record is regular on its face. Kirby only asserts that it has the wrong cause number. Both stipulations of evidence are in the record. Thus, there is no question that either judgment was without proper foundation. Considering that the judgment used to enhance Kirby’s conviction is regular on its face, we cannot assume the stipulation of evidence is more accurate. McCloud v. State, 527 S.W.2d 885, 887 (Tex.Crim.App.1975). A defendant must show affirmatively that a conviction used in enhancement is void. Acosta v. State, 650 S.W.2d 827, 834 (Tex.Crim.App.1983, en banc). In a collateral attack on a conviction, the defendant has the burden of proving the judgment void. Ex Parte Guzman, 589 S.W.2d 461, 464 (Tex.Crim.App.1979, en banc).

Appellant further asserts that a void conviction was introduced in the punishment phase of the trial. It appears from the record that one of Kirby’s prior convictions was reversed by the Court of Criminal Appeals. It also appears from the record that Kirby was retried and convicted for the same offense. It should be noted that this offense was extraneous to the enhancement counts. The punishment was fully supported by the counts as proven. Kirby was not prejudiced by the introduction of the extraneous offense. His ground of error is overruled.

During the fact-finding stage of the trial, Kirby’s attorney objected to statements made by both the prosecutor and a witness. In each instance the objection was sustained, and the jury was instructed to disregard.

In the first instance, the arresting officer gave a nonresponsive answer in which he stated that burglaries often result in rapes. An instruction to disregard is usually sufficient to cure the effect of a nonresponsive answer. The question is whether it was likely to affect the jury’s verdict in spite of the instruction. Williams v. State, 643 S.W.2d 136, 138 (Tex.Crim.App.1982). The evidence in this case did not in any way suggest that a rape had occurred. The judge’s instruction cured any harm that may have been caused. Appellant’s ground of error is overruled.

There was one other occasion where an objection to a statement was sustained, and the jury was instructed to disregard. The prosecutor asked a witness about his prior knowledge of Kirby, but the witness was prevented from answering. Improper questions are usually cured by an instruction to disregard. It is only inadequate when the statement is clearly calculated to inflame the minds of jury, such that an instruction could not withdraw the impression created. Thompson v. State, 612 S.W.2d 925, 928 (Tex.Crim.App.1981). The unanswered question in this case did not cause any harm that was not cured by the judge’s instruction. Appellant’s ground of error is overruled.

Kirby’s attorney also objected to two statements made by the prosecutor during his arguments to the jury. The prosecutor asked the jury to remember that the punishment phase was next, and during the punishment phase itself, said, “If those pri- or juries know what you know now ...” In both cases the judge sustained the objection, and instructed the jury to disregard.

As with improper questions or testimony, improper argument to the jury must be so inflammatory that its prejudicial effect cannot be removed by an instruction. Thomas v. State, 578 S.W.2d 691, 695 (Tex.Crim.App.1979). The comments must be clearly calculated to prejudice the rights of an accused. Mathews v. State, 635 S.W.2d 532, 540 (Tex.Crim.App.1982). Neither comment was prejudicial to the degree that the effect could not be cured by the judge’s instruction. Appellant’s grounds of error are overruled.

Appellant’s nine grounds of error are overruled. The judgment of the trial court is affirmed.


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    Shirley HUGHES, Appellant, v. STATE of Texas, Appellee.
    No. A14-83-250-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 10, 1984.
    Tom Thurlow, withdrew as attorney, Vincent Musachia, substituted, Houston, for appellant.
    J. Harvey Hudson, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

After a jury trial, appellant was found guilty of involuntary manslaughter and assessed a punishment of two years’ imprisonment and a $2000.00 fine. In two grounds of error, appellant contends first, that the trial court submitted an erroneous charge on accident, and second, that the court erred in refusing to permit several witnesses to testify as to prior acts of violence by the victim, appellant’s husband, toward appellant. We affirm the judgment of the trial court.

This case arises from appellant’s unwit-nessed killing of her husband, Anthony Hughes. Appellant testified that she and Mr. Hughes were wrestling over a gun and that “it just went off.” Because of these circumstances, appellant requested and submitted a charge on the law of accident. The trial court refused that instruction, and issued instead the following instruction at the end of the charge:

It is a defense to prosecution that an offense was committed by accident. A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct. Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Shirley Hughes, on or about the 7th day of March, 1982, did intend to cause serious bodily injury and intentionally or knowingly committed an act clearly dangerous to human life that caused the death of an individual, but you further believe from the evidence, or have a reasonable doubt thereof, that the above specified act was accidental and was not the voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict not guilty.

Appellant now complains that this instruction was erroneous because it restricted the defense of accident to the offense of murder, thereby denying its application to the lesser offenses of voluntary manslaughter, involuntary manslaughter and criminally negligent homicide, with which appellant was also charged.

Although the defense of “accident” has had its place in Texas law, it has recently come into disfavor with the courts. See Schoelman v. State, 644 S.W.2d 727, 732 n. 16 (Tex.Crim.App.1983). Compare Garcia v. State, 605 S.W.2d 565 (Tex.Crim.App.1980). Indeed, the defense of “accident” does not exist in the present penal code. Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982); Schoelman at 732 n. 16. Instead, the jury may be charged that the defendant should be acquitted if there is a reasonable doubt as to the voluntariness of the conduct. Williams at 644. Consequently, the court’s failure to give a charge on “accident” regarding the three lesser offenses was not error. We further note that an instruction on voluntariness would have been proper in this case in each of the four instances; however no such instruction was requested. The court could not have been expected to deduce from the requested charge on “accident” that appellant was, in fact, requesting an instruction on voluntariness. See Tex.Crim.Proc.Code Ann. §§ 36.14, 36.-15 (Vernon Supp.1984); Garcia v. State, 605 S.W.2d 565, 566-67 (Tex.Crim.App.1980) (Douglas, J., dissenting).

We are then faced with the question of whether the court’s erroneous instruction regarding “accident” necessitates reversal of the judgment. We believe it does not. The trial court submitted a charge adequate in all other respects. The charge properly outlined the elements of each offense, murder, voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide, and delineated and defined the appropriate mental state for each. Although the judge erroneously concluded with the instruction on “accident,” such instruction could only have benefitted appellant. Since the charge was correct in all other respects, and the claimed error inured to appellant’s benefit, we find no basis in appellant’s complaint. See Torres v. State, 493 S.W.2d 874, 875 (Tex.Crim.App.1973). The first ground of error is overruled.

Appellant’s second ground of error complains of the exclusion of testimony of several witnesses regarding past physical abuse of appellant by her husband. Appellant attempted to question the witnesses regarding these acts and statements, but was cut off each time by the State’s hearsay objections, which objections were repeatedly sustained. Appellant made no bill of exceptions to show what the witnesses would have said. In order to complain of the exclusion of testimony, the record must indicate what that testimony would have been. Rumbaugh v. State, 629 S.W.2d 747, 754 (Tex.Crim.App.1982); Crawford v. State, 643 S.W.2d 178, 179 (Tex.App.-Tyler 1982, no pet.). Since no bill of exceptions was made, nothing is presented for review. Appellant’s second ground of error is overruled.

The judgment is affirmed.


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    Eric Elton TERRY, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-277-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 17, 1984.
    Discretionary Review Refused Oct. 31, 1984.

      Jimmy James, Houston, for appellant.
    Timothy Taft, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Eric Elton Terry pled guilty to a charge of second degree theft and was thereafter sentenced to fifteen years’ imprisonment. Appellant makes two contentions on appeal: (1) that the judge did not correctly admonish him prior to accepting his guilty plea; and (2) that the judge did not sign the document containing appellant’s stipulation of evidence thereby rendering it inadmissible for any purpose; and consequently, the remaining evidence was insufficient to sustain his conviction. We affirm the judgment of the trial court.

Appellant, an employee of Exxon, filled out a number of false invoices which were paid to him. He was charged with eleven paragraphs of theft, the aggregate amount of which was over ten thousand dollars. At the arraignment, the trial judge initially informed the defendant as follows:

“It is alleged that on or about October 9, 1981, you, Eric Elton Terry, here and after styled the Defendant, did then and there unlawfully appropriate property, namely money, of the value of over $200.00 dollars and under $10,000.00 dollars, owned by Exxon Company, U.S.A., hereafter styled the Complainant, a person with a greater right to possession of the property than the Defendant, with the intent to deprive the Complainant of the property and without the effective consent of the Complainant. These are in aggregate amounts that occurred on [various dates].

The court further admonished the appellant as to punishment as follows:

I must inform you under the law of this state anyone found guilty of the offense of theft of the second degree, a felony, may be punished by a term in the Texas Department of Corrections of not less than two years nor more than twenty years and a fine not to exceed $10,000.00 dollars. Do you understand that full range of punishment?

The appellant responded “yes I do.” Appellant thus argues that the trial court erroneously informed him as to the statutory definition of third degree theft, but admonished him as to the punishment for second degree theft.

Article 26.13 of the Code of Criminal Procedure requires that prior to accepting a plea of guilty the court admonish the defendant as to the range of punishment and the recommendations, if any, of the prosecutor as to punishment. Article 26.13 requires no admonition concerning the offense committed. Thus, by delineating the proper range of punishment for the offense for which appellant was charged, namely a second degree felony, the court made proper admonitions under 26.13. See generally Whitten v. State, 587 S.W.2d 156 (Tex.Crim.App.1979). Further, the appellant specifically responded that he understood the full range of punishment.

Furthermore, we find no error in the court’s description of the offense. The appellant orally waived the formal reading of the indictment which contained eleven paragraphs of theft, identical in every respect except for the date of the theft. The trial judge orally tracked the general language of the indictment, but rather than recite the same paragraph ten more times, he simply stated that the offense was committed on several other dates. Admittedly, the trial judge did not specifically state that the total amount stolen was more than $10,000.00, which factor was relied upon to raise the offense from third to second degree. See Tex.Penal Code Ann. § 31.-03(d)(5) (Vernon Supp.1982-1983). However, the judge later clearly stated that the charge was for a second degree felony. The error, if any, was simply an ambiguous statement of the offense, later clarified, and was not a fatal error in the court’s admonitions. Appellant also argues that the court’s use of the term “anyone” in the admonition as to punishment did not relate it specifically to him. However, we fail to see how the court’s admonition could be realistically regarded as a rhetorical exercise under these circumstances. Nor can we seriously regard the trial court’s asking the appellant if he understood the full range of punishment to be merely a question of criminal law to be acknowledged by the defendant.

The record in this case consists of a brief statement of facts recording appellant’s plea, the court’s admonishment relative thereto, the sentencing, appellant’s testimony, and a document entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” This latter document is referred to by appellant and the court as a stipulation of .evidence. However, in it appellant waives his right to self-incrimination and admits to committing each of the offenses alleged in the indictment which are specifically set out in this document. The following wording is contained after listing the detailed allegations of the indictment:

“I understand the above allegations and I confess that they are true and that the acts alleged above were committed on specific dates alleged in the above paragraphs.”

The document is signed by the appellant, his attorney and the state’s attorney. It was not, however, approved in writing or signed by the trial judge. Appellant contends this omission renders the document, and anything contained therein, inadmissible for any purpose under article 1.15 of the Code of Criminal Procedure. Without it, appellant asserts, there is insufficient evidence to sustain his conviction. Appellant thereby assumes that this entire document is merely a stipulation of evidence, and therefore unless signed by the judge it is inadmissible under art. 1.15 of the Code of Criminal Procedure. See Young v. State, 648 S.W.2d 6 (Tex.Crim.App.1983).

We agree with appellant that a stipulation of evidence must be signed by the judge to be admissible against a defendant in a guilty plea case. However, we disagree with appellant’s apparent assumption that the document contained herein is exclusively a stipulation of evidence. If it were, his contention might have merit. We find it to be clearly a judicial confession and as such, the judge’s signature is not required.

Appellant apparently presumes that a stipulation of evidence is an essential prerequisite to accepting a plea of guilty. That is not the case. The Code of Criminal Procedure requires only that there be “sufficient evidence” to support the plea. This evidence may be presented in any number of ways, one of which is a signed stipulation of evidence. See Tex.Code Crim.Proc. Ann. art. 1.15 (Vernon 1977). A judicial confession is an equally acceptable method of providing sufficient evidence to sustain a conviction on a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App.1979) (on motion for rehearing). It is well settled that a judicial confession standing alone is sufficient to sustain a conviction on a guilty plea. Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Crim.App.1978).

A judicial confession is generally defined as a confession made in a legal proceeding. There is no clear-cut universal definition of a judicial confession which specifically applies to all guilty plea cases. Each case must be evaluated on its own particulars. Dinnery v. State, 592 S.W.2d at 352, 357 (Clinton, J., dissenting). Both the majority and the dissenting opinion in Dinnery would embrace the judicial confession in this case. In addition to specifically admitting in writing to the enumerated allegations of the indictment, the appellant also testified under oath that he understood the document he signed was a judicial confession. He then proceeded to corroborate further facts contained in the indictment on examination by the state. We find that under the circumstances of this case, the written document signed by appellant and his partial oral confirmation thereof clearly constitutes a judicial confession and provides adequate evidence to support his guilty plea. Appellant’s second ground of error is overruled.

The judgment is affirmed.