text:
    Henry Martin SMITH and Dirk Vincent Terry, Appellants, v. STATE of Texas, Appellee.
    Nos. B14-82-392-CR, A14-82-397-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 17, 1983.
    Rehearing Denied Dec. 22, 1983.
    Discretionary Review Granted June 27, 1984.

      Terry Collins, Larry Urquhart, Houston, for appellants.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and CANNON, JJ.
   OPINION

ROBERTSON, Justice.

Although indicted separately, appellants were jointly tried for the offenses of securing execution of a document by deception as proscribed by the TEX.PENAL CODE ANN. § 32.46 (Vernon 1974). The jury rejected their pleas of not guilty, found each guilty on four counts alleged in their respective indictments and assessed punishment for each at confinement for a period of five years and a fine of $2,500 on each count. The appeals have been consolidated. Appellants raise twelve identical grounds of error concerning sufficiency of evidence, jury argument, charge to the jury, admissibility of evidence, sufficiency of the indictments, and a motion to suppress evidence. Appellant Terry raises four additional grounds of error attacking the sufficiency of the evidence to establish, under each count of the indictment, his criminal responsibility for the offenses. We affirm.

There being an attack upon the sufficiency of the evidence it will be set out in some detail. As background information, the evidence shows and the jury was entitled to believe, that appellant Terry owned a business called “National Home Improvement Program.” An advertisement for such business appeared in the T.V. Guide of the Houston Chronicle for some period of time. The ad, measuring some 4x5 inches and complete with a picture of Uncle Sam, the American flag and stars, carried in bold print the words “APPROVED HOME IMPROVEMENT LOANS”, “NO ONE REJECTED,” and in bolder print “BAD CREDIT NO CREDIT.” Further the ad stated “NO DOWN PAYMENT,” “NO REJECTS HERE,” “WE HAVE AN APPROVED LOW INTEREST IMPROVEMENT LOAN FOR YOU,” “EVEN IF YOU DON’T HAVE A JOB.” (Emphasis in ad). Improvements carried in the ad were siding, insulation, trim, overhang, roofing, air conditioning, carpet, aluminum replacement windows, “etc.” Finally, the ad represented the National Home Improvement Program operated in “Texas, Louisiana, Georgia, Florida Districts.” No address was given for the company and the only telephone number given was that of a telephone answering service. Over a period of several months numerous people (some fifty-five to sixty customers according to the representation of appellant Terry in a recording) answered the ad. In the beginning appellant Terry called personally upon some of the people answering the ad, but subsequently appellant Smith was hired and trained by Terry as the salesman to call upon the prospective customers. Appellant Smith did not use his own name when soliciting contracts, but instead used the name “Don Emmons,” “Dirk Terry,” “Don Edmonds” or “Don Hammonds.” The jury was authorized to believe that the only customers of National Home Improvement Program were those who either answered the T.V. Guide advertisement or another person referred by such customer. The jury was further authorized to find that telephone calls to the answering service made subsequent to some of the work contracted to be done had been completed were generally not returned.

In addition to the testimony of the four complainants named in the indictments, the state additionally called twelve other persons who testified concerning the details of other similar transactions. In each transaction the facts are almost identical; a general statement of the method of operation will suffice. A financially disadvantaged person who desired some specific work on his home would answer the ad. Of the sixteen complainants, seven identified Terry as the person who came to their home to discuss the improvements. On one of these transactions Smith accompanied Terry. The other nine identified Terry (who identified himself to them as either Edmonds, Terry, Emmons or Hammonds), as the person who called upon them. Representations were made by either Terry or Smith in nine of the transactions that their program was connected with “the government.” Without exception the sales pitch was identical. The complainant would tell the salesman the work desired; the salesman would represent that work could be done but “to qualify” it was necessary to have “additional work” done. The “additional work” to be done was usually a roof, central air conditioning or siding. It was explained to the customer that it was a “package deal” for a certain price for all of the repairs but some of the repairs (usually the air conditioning or the roof or the siding) would be written in a “contract” (for the total agreed price for all of the repairs). The majority of the work was written in a “proposal” (which was to be done at a ridiculously low price). (It was generally explained that it was necessary to follow this procedure as collateral was necessary for some of the work and the remainder of the work was being done on a “signature loan.”) It was explained to the customer that the work would be done in “phases”— the first being that covered by the contract. The other work was never done. The salesman (Terry or Smith) calling upon the customer explained the need for a notary signature to the contract and completion certificate, but received the approval for the notary to sign later. Additionally, the salesman explained to the customer that he would receive a telephone call from a financial company in Fort Worth and he should acknowledge the work had been completed and he had appeared before the notary. Subsequently, a “Mechanics and Material-men’s Lien Contract” for the total amount of the contract price would be filed in the office of the county clerk. Each of the complainants testified that had they known all of the work represented to be done would not be done, they would not have signed the contract. As a result of the deceptive practices of appellants, some of the customers bound themselves for costs of, for instance, $21,000 for a central air conditioning system, and another, $21,000 for a roof (which the complainant knew, alone, would cost about $1,500).

In their first ground of error appellants attack the sufficiency of the evidence to sustain their convictions under count three of the indictments since Walter Buhl, the person alleged to have been deceived into executing the retail installment contract did not testify. A copy of the retail installment contract signed by both Mr. & Mrs. Buhl shows the name of the buyer to be Walter T. Buhl and wife Odeal. Mrs. Buhl testified, without objection, that there was no way she or her husband would have signed the contract if they had known that the other work promised would not be provided. Appellants declined to cross-examine Mrs. Buhl so as to show her testimony was not based on her personal knowledge. Mrs. Buhl was competent to testify as to her state of mind when she signed the contract and to give her opinion as to her husband’s state of mind as she observed him sign the contract. Thus, we find there to be sufficient evidence to sustain the appellants’ convictions under count three of the indictments. Appellants first ground of error is overruled.

In grounds of error two through five, appellant Terry alleges that the evidence is insufficient to establish his criminal responsibility for the offenses with which he is charged. The state had the burden of showing that appellant Terry acted with the intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid appellant Smith in commiting the offense. TEX.PENAL CODE ANN. § 7.02(a)(2) (Vernon 1974). The court may look to events before and after the commission of an offense in order to determine whether an individual is a party to the offense and bears criminal responsibility therefor. Even circumstantial evidence may be sufficient to show one is a party to an offense. Freeman v. State, 654 S.W.2d 450, 454 (Tex.Crim.App.1983). The evidence brought out at trial established that: 1) Appellants Smith and Terry were long time friends, having gone to school together; 2) Terry trained Smith in the home improvement business; 3) Terry owned and operated the National Home Improvement Company; 4) Terry’s company was paid for work done on the Parker, Buhl, Derbigney, and Kahlin residences; 5) Terry himself signed at least one of the above customers retail installment contracts. Further, the “Mechanics and Materialmen’s Lien Contract with Power of Sale” obtained in each of the transactions with the Parkers, Buhls, Derbigneys and Kahlins was before the jury. Each was signed “Dirk Terry contractor/seller.” Each instrument shows National Home Improvement Program sold “that certain indebtedness described in the foregoing Mechanics and Ma-terialmen’s contract with Power of Sale, together with the lien securing same” to Reliable Capital Corporation. Each assignment was signed “Dirk Terry” and acknowledged before “Julie M. Terry”. (Appellant acknowledged his wife’s name was Julie). Finally, there was evidence before the jury that when Terry, in responding to an inquiry from the Consumer Fraud Division of the Harris County District Attorney’s office, went there to explain his side of the complaints the office had received from consumers, he denied that Henry Martin Smith and Don Emmons were the same person and stated that Don Emmons had been terminated “three or four weeks before” and that he didn’t know his whereabouts. In fact, Smith (Emmons) had accompanied Terry to the District Attorney’s office, had remained in the lobby area while Terry talked to the assistant district attorney, and was subsequently identified and arrested. (When the two were brought face to face, Terry refused to acknowledge Smith.) There was even evidence that when the authorities went to Terry’s home to execute an arrest warrant he refused for an extended period of time to answer their knock and calls to him and only when the officers threatened forcible entry did he open the door. When the sufficiency of the evidence is challenged, we view the evidence in the light most favorable to the verdict. We conclude that the evidence was abundantly sufficient to show that appellant Terry did, with intent to promote or assist the commission of the offense, solicit, encourage, direct, aid, or attempt to aid appellant Smith in committing the offense. Therefore, grounds of error two through five are overruled.

In grounds of error six through nine, appellants claim the evidence is insufficient in counts two through five of their indictments to establish that execution of the retail installment contracts reproduced in the indictments “affected” property owned by those named in the indictments, respectively: Parker, Buhl, Kahlin, and Derbigney.

Mr. Parker, Mrs. Buhl, Mr. Kahlin, and Mr. Derbigney each referred to the homes covered by the pertinent retail installment contracts as “my home” or “my house.” The evidence clearly shows that appellants would not do business with a customer who did not have a deed to his or her house. Each of the complainants occupied the properties in question and the presumption that one in possession is vested with title was not rebutted by appellants. Whittle v. Johnston, 392 S.W.2d 867 (Tex.Civ.App.—Texarkana 1965, writ ref’d n.r.e.). Appellants’ contentions are not well taken.

Secondly, appellants contend the state failed to prove the installment contracts affected property of the complainants. By the terms of the statute, the offense is completed when a person causes another to execute a document “with the intent to defraud or harm....” There is no requirement that the state prove the resulting harm. Each contract in question explicitly stated it was a “Home Improvement Agreement” and dealt with the installation of central air-conditioning in three instances and a roof in the fourth. Appellants’ company is called the National Home Improvement Company. It seems almost too obvious to note that a home improvement contract is a document affecting property. Finally, the contract expressly granted “to Seller a builders Mechanics, Materialmen’s and Laborer’s lien upon the herein described real property and improvements located thereon.” Grounds of error six through nine are not well taken and are overruled.

In ground of error number ten, appellants contend they were denied a fair trial because of the prosecuting attorney’s comment that:

... There are at least fifty-five to sixty former customers of National Home Improvement Program. You have heard the testimony from fourteen. You know that this trial could have been a lot longer. ..

Appellants claim that even though the objection was sustained and the jury instructed to disregard it, the error was not cured. We disagree. First, there was some evidence through Terry’s taped admission as to this number of contracts. Further, there was testimony that some “60 or 70 or 80” abstracts on work performed by National Home Improvement Program were received from the abstract company. This was some evidence that there were many more contacts than the jury had heard evidence on. However, assuming the impropriety of the comment, the instruction to disregard would be sufficient unless the remark was clearly calculated to inflame the minds of the jury and was of such a character to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Lopez v. State, 643 S.W.2d 436 (Tex.App.—Corpus Christi 1982, pet. ref’d). We do not believe the prosecutor’s breach to be this egregious. Any error was cured by the court’s instruction to disregard. Thomas v. State, 578 S.W.2d 691 (Tex.Crim.App.1979). Appellants’ tenth ground of error is overruled.

In ground of error eleven, appellants assert that the charge was fundamentally defective because it “merely required the jury to find that the appellant acted with the intent to defraud or harm, without specifying the person toward whom that intent was directed.” For example, in pertinent part, Count Two of the indictment reads: “with intent to defraud and harm, JOHN A. PARKER, hereinafter styled the Complainant cause by deception the Complainant to sign,” whereas in the corresponding charge to the jury the allegation is phrased: “did intentionally with the intent to defraud or harm, and by deception cause JOHN A. PARKER to sign_” The charge required the jury to find each essential element under the Penal Code. We think it obvious from a common sense reading that the only person appellant could have intended to defraud or harm was the complainant. See Hawkins v. State, 656 S.W.2d 70 (Tex.Crim.App.1983). However, even if error it was not calculated to injure the rights of appellants or deprive them of a fair and impartial trial. Therefore, no fundamental error is shown and ground of error number eleven is overruled.

Grounds of error twelve through fourteen present appellants’ contention that the trial court erred in permitting the prosecuting attorney to bolster the testimony of state witnesses: Parker, Buhl, and Bibbs during his cross-examination of defense witness Garza. Each of the state’s witnesses testified on cross-examination to having made a statement to a Capital Reliable Corporation representative to the effect that there was further work to be done on their respective homes. Following this statement the defense attorney made essentially the same remark to state witnesses Parker, Buhl, and Bibbs: “So, if the conversation (taped) between you and, let’s say Mr. Carlos Garza the Capital Reliable Corporation, shows that you did not say anything like that, then you’re mistaken in what you’re saying here today?”

When Mr. Garza was cross-examined by the prosecutor he was questioned as to the content of his conversation with Parker, Buhl, and Bibbs. We do not characterize this testimony as an attempt to bolster the uncontroverted statements of unimpeached witnesses. Whatever its merit, the defense attorney’s remark to each of the witnesses was an attack on the veracity of their statements. Given this impeachment attempt, the complained of testimony was permissible corroboration. It was not clearly calculated to prejudice the appellants. Whatever label is attached to the complained of questioning involving Mr. Garza, we hold that the trial court cured any possible error by its instruction to disregard the remarks. Thomas v. State, 578 S.W.2d 691 (Tex.Crim.App.1979). These grounds of error are overruled.

Appellants argue in ground of error fifteen that the trial court erred in overruling their motions to quash all counts of the indictments for failure to allege the conduct of the appellants which constituted “deception” and for failure to describe the “affected” property. Omitting the formal allegations, each count of each indictment alleged that each appellant:

did then and there unlawfully with intent to defraud and harm (the named complainant), hereafter styled the complainant cause by deception the complainant to sign and execute the document duplicated below which affected the complainants’ property and pecuniary interest (and there was then attached a photocopy of the complete “Retail Installment Contract.”)

We must first address a procedural matter. Notice of appeal for each appellant was given on May 27, 1982. Appellants never designated any material for inclusion in the appellate records pursuant to TEX.CODE. CRIM.PROC.ANN. 40.09(2) (Vernon 1981). Objections to the record were twice made because the transcript of the evidence had not been filed, but the record on appeal was finally approved without objection on December 17,1982 and the record was filed in this court on January 4,1983. On March 17, 1983, each appellant filed his brief in this court and on March 28,1983 appellants filed in this court a motion to supplement the appellate record, requesting that motions to quash the indictments be made a part of the record. The state filed written opposition to the motion and a panel of this court denied appellants’ motion to supplement. Thereafter, on June 2, 1982 appellants filed a motion with the trial court to supplement the appellate record and requested that motions to quash be forwarded to this court. Thereafter, the trial court granted appellants’ motion. (While not that material to our disposition of this matter, notice was neither given to the state nor was the matter set for hearing). The state has filed a motion in this court “To Declare Void Supplementation of the Records” and appellants have filed written opposition thereto. Basically, the state argues the trial court was without jurisdiction to supplement the appellate record after it was filed in this court. On the other hand, the appellants argue that “Article 44.11 does not prohibit supplementation of the appellate record pursuant to the trial court’s authority under Article 40.09(7), V.A.C.C.P.” In support of their argument appellants cite numerous cases where appellate records have, in fact, been supplemented by order of the trial court while the case is on appeal, and, even in some instances subsequent to the issuance of the original opinion. Appellants even cite Deaton v. State, 642 S.W.2d 247 (Tex.App.—Houston [14th Dist.] 1982, no pet.) where the appellate record was supplemented over appellants’ objection after appellant had filed his brief. However, there this court stated that “[I]f we assume the trial court’s supplementation of the record to be in error and disregard the supplementation of the record” the record as originally transmitted was sufficient to show no error.

We believe the issue before us is simple and none of the cases cited by either appellants or the state is controlling. We hold that once the appellate record is approved and filed in the appellate court and a motion to supplement that record is then made in the appellate court and the court denies the motion, the trial court does not thereafter have the authority to order the record supplemented. We believe the orderly administration of justice commands this rule. Accordingly, we grant the “State’s Motion to Declare Void appellants’ Supplementation of the Records” and order the supplemental transcript filed in this court on July 8, 1983 stricken and returned to the Office of the Harris County District Clerk. The record before this court does not contain a motion to quash. Nothing is presented for this court to review. Appellants’ fifteenth point of error is overruled.

In ground of error sixteen, error is asserted in the trial court’s overruling of appellants’ motion to suppress a video-taped interview of appellant Terry in which no Miranda warnings were given. Miranda warnings are required only in the context of a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The determinative issue in this case is whether appellant Terry was in custody at the time his interview with assistant district attorney Turbeville was video-taped.

Appellant Terry agreed to meet and discuss with Turbeville complaints received by the district attorney’s office concerning Terry’s home improvement business. Terry chose the time of the interview: approximately 11:30 a.m., August 27, 1981. The interview was held in a conference room at the District Attorney’s Office Building. When Terry elected to terminate the interview, stating “it’s attorney time,” he left freely without harrassment.

A person is deemed to be in custody when a reasonable person under the same circumstances would believe himself not free to leave or break off police interrogation. Stone v. State, 583 S.W.2d 410 (Tex.Crim.App.1979). As the facts indicate, appellant Terry was not in custody when his interview with assistant district attorney Turbeville was video-taped, thus no Miranda warnings were required. Ground of error sixteen is overruled.

We note that while the verdict of the jury is correctly recited in each judgment against each appellant assessing, in addition to confinement, “a fine of $2,500,” the judgment itself recites “the court assessed a fine of $5,000.” Each of the judgments against each appellant is reformed to correctly reflect that on each count of the indictment punishment was assessed at confinement in the Texas Department of Corrections for five years and in addition thereto a fine of $2,500.

As reformed, the judgments are affirmed.


source: Caselaw Access Project

author: DRAUGHN, Justice.

license: Public Domain

text:
    Thomas Edgar DANIELS aka Thomas Edgar Austin, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-093-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 26, 1984.
    Rehearing Denied Feb. 23, 1984.
    Discretionary Review Granted Nov. 14, 1984.

      Ronald Waska, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
   OPINION

DRAUGHN, Justice.

Thomas Edgar Daniels appeals from his conviction for possession of a controlled substance for which he was sentenced to five years’ imprisonment. In two grounds of error, appellant claims that the trial court incorrectly admitted into evidence certain items seized from him during an airport stop and search. We hold that the trial court did not err in admitting such evidence and accordingly affirm the judgment.

Officers Furstenfeld and Bernias, while on Airport Detail for the Houston Police Department’s Narcotics Division, observed appellant and his co-defendant, Stephen Bogden, arriving at Houston Intercontinental Airport from Miami. The officers were looking for people who displayed certain characteristics typical of drug couriers. They were particularly interested in this flight as it originated in Miami, a known drug source city. Furstenfeld’s attention was immediately drawn to appellant Daniels because he and Bogden deplaned separately, but obviously “locked eyes” in the lobby. Daniels scanned the lobby nervously, and then he and Bogden proceeded separately down the concourse. They nodded at each other once, and both appeared unusually nervous. They met at the baggage claim area where Bogden handed appellant his suitbag while Bogden went to the restroom. Bogden rejoined Daniels and they waited to claim a white suitcase. The officers then followed Daniels and Bogden into the elevators which took them to the airport’s covered parking area. Furstenfeld approached appellant Daniels as he left the elevator and began walking down the parking lot, while Bernias followed Bogden further down the lot. Furstenfeld greeted appellant and asked if he could speak with him. He then identified himself as a police officer and asked if Daniels would mind answering a few questions for an investigation he was conducting. Daniels replied that he did not mind. Furstenfeld asked him if he was traveling with Bogden, to which he responded that he was not. Fur-stenfeld then asked if he would mind showing his plane ticket. Appellant produced two tickets, one in the name of G. Daniels and one in Bogden’s name. Furstenfeld then returned the tickets and asked him for some identification. Daniels handed him a temporary driver’s license in the name of T. Daniels. After looking at it, Furstenfeld returned the license and identified himself as a narcotics officer. Appellant then became nervous and began shaking and perspiring.

Furstenfeld then asked for Daniels’s permission to search him and his suitcase. He informed Daniels that he did not have to consent and that he could require him to obtain a search warrant. In spite of this admonition, Daniels consented to the search, which subsequently revealed certain controlled substances. Daniels was then arrested and charged with the instant offense.

Before the case went to trial on the merits, Daniels made a motion to suppress the introduction of the narcotics. The trial judge denied the motion after a lengthy hearing. Daniels was thereafter found guilty of possession of a controlled substance. He now contends on appeal that the narcotics were obtained as the result of an illegal search and seizure, and therefore should have been excluded.

There have been a myriad cases dealing with airport stops and searches. The courts have had difficulty with these issues and have reached varying results. This diversity stems from the constitutional need to balance the intrusion on an individual’s Fourth Amendment rights against the government’s interest in ending drug smuggling. See United States v. Berry, 670 F.2d 583, 594 (5th Cir.1982) (en banc). However, two recent cases have attempted to resolve these uncertainties and establish specific guidelines for future airport stop and search cases. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Berry, supra.

We begin with the premise that not all airport stops of individuals by police invoke the protections of the Fourth Amendment. Rather, the purview of protections is governed by which one of three types of police-citizen encounter is at issue: a communication between police and citizens involving no coercion or detention, a brief, Terry-type investigatory stop, or a full scale arrest. Berry, 670 F.2d 591. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Perchitti v. State, 659 S.W.2d 75 (Tex.App.—Houston [14th Dist.] 1983, no pet.). If the events in the ease constitute a permissible police encounter in a public place or a justifiable Terry type detention, evidence obtained in a subsequent voluntary search is admissible. See Royer, 103 S.Ct. at 1326. If, however, the stop amounts to a full scale arrest, it must be supported by probable cause for the evidence gained thereby to be admissible. Thus, our initial task is to determine the proper category here involved.

Communications between police and citizens involving no coercion or detention do not violate the Fourth Amendment. Berry at 594. Police officers may approach an individual in a public place by asking him if he is willing to answer some questions, or by putting questions to him if he is willing to listen. Without more, the fact that an officer identifies himself as a police officer does not make the encounter a seizure requiring some amount of justification. Simply stated, if there is no detention — no Fourth Amendment “seizure”— then no constitutional rights have been violated. Florida v. Royer, 103 S.Ct. at 1324.

A “seizure” of a person has occurred if “in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). When a seizure takes place, it must be justified in some manner for the fruits thereof to be admissible evidence. However, not all seizures must be supported by probable cause to arrest. Rather, a reasonable suspicion of criminal activity justifies a temporary seizure for the purpose of questioning, directly limited to the purpose of the stop. Royer, 103 S.Ct. at 1324; See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

With these guidelines in mind, we now apply them to our facts. Officer Fursten-feld observed certain characteristics in Daniels which drew his attention to him. He then approached Daniels and asked him whether he would answer some questions. He identified himself as a police officer, asked for, and examined appellant’s airline tickets and driver’s license. Up until this point, Furstenfeld was engaged in a permissible encounter in a public place. See Royer, 103 S.Ct. at 1326.

After he examined the tickets, Furstenfeld learned without coercion that appellant was lying about his having trav-elled with his codefendant, Bogden. This added circumstance gave him “reasonable suspicion” and, thus, adequate grounds to detain him in order to dispel his suspicions. Id. He did so and, as stated, if the events in a particular case amount to no more than a permissible police encounter or a reasonable suspicion encounter, appellant’s voluntary consent would legalize the search of his suitcase.

Since we have determined that the stop did not exceed these limits, we must now determine whether Daniels’s consent to search his suitcase was voluntary. We find that it was. See United States v. Ramirez Cifuentes, 682 F.2d 337, 344 (2d Cir.1982). Furstenfeld asked Daniels if he could search his suitcase and informed him that he did not have to consent, but that he could require the officer to get a search warrant. Daniels permitted him to make a search, and even alluded to the fact that someone may have put some drugs inside. This presents no evidence of coercion, and is buttressed by the fact that they remained in a public place and not an enclosed detention-type setting.

Appellant urges that this court’s recent holding in Perchitti v. State, supra, requires us to find the evidence seized inadmissible. This case, however, is easily distinguishable. In Perchitti, the officers had no justification for detaining Perchitti after the initial questioning. In the instant case, appellant was caught in an obvious lie. The officers moved Perchitti to another part of the terminal, where they asked Perchitti for consent to search his suitcase. Perchitti remained silent. The officer here did not move appellant and appellant clearly consented to the ensuing search. Furthermore, Perchitti was never advised that he did not have to consent to the search as appellant Daniels was here. Indeed, these very distinctions led us to the conclusion that the evidence was admissible.

We therefore conclude that the trial court was correct in overruling appellant’s motion to suppress and in admitting the evidence at trial. Accordingly, the judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Harry Michael MARLO, Appellant, v. STATE of Texas, Appellee.
    No. A14-82-573-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 2, 1984.
    Rehearing Denied March 8, 1984.
    Discretionary Review Granted Oct. 31, 1984.
    Daniel Shindler, Houston, for appellant.
    Jim Mapel, Angleton, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   J. CURTISS BROWN, Chief Justice.

Harry Michael Mario (Mario or appellant) was charged with murder of Jamie Price. The state produced two eyewitnesses, Charles Pee and Rohnie Johnson. Before the jury was instructed on the charge, appellant filed a written request to instruct the jury that Pee and Johnson were accomplice witnesses. The request was denied, and the jury found Mario guilty. The jury assessed a punishment of sixty years confinement in the Texas Department of Corrections.

Pee testified that the three men had spent a substantial portion of Christmas day drinking and eating at various establishments. At their last stop they danced and socialized with several women. Around midnight, Pee helped Johnson return to the truck, where Johnson fell asleep. Ultimately, Mario returned to the truck with Jamie Price, one of the women with whom they had been socializing. She had been drinking heavily, and also fell asleep.

Apparently Mario had promised to drive Price home, but chose instead to drive to a remote well site in the area. Sometime during the course of the evening Johnson had expressed an interest in having sexual relations with Price. Mario and Pee discussed this while driving, and Pee asked what would happen if Price caused trouble. He thought she was a karate expert. Mario replied that he had his pistol with him in case there was any trouble.

Johnson was awake when they arrived at the well site, and he began to remove Price’s blouse. Price awoke and jumped out of the truck. She argued briefly with Mario, apparently upset that she had not been taken home. Mario suddenly pulled his gun and shot her. The shots were not immediately fatal, and Mario shot her three times while she was on the ground. Mario ordered Pee and Johnson to dispose of the body and some of Price’s jewelry. Following his directions they removed the jewelry, disposed of the body, and helped clean the truck.

Both Pee and Johnson testified they were scared of Mario, and that he had made threats against them. Regarding the killing and the events preceding, Johnson’s testimony is consistent with Pee’s in all important respects. Variances between the testimony of the two arise from differences in perspective, and disagreements about whether Johnson was conscious at various points.

In four grounds of error, appellant asserts that the jury should have been instructed that Pee and Johnson were accomplices, that there was insufficient evidence to convict Mario of murder, and that the prosecutor made improper statements in his closing argument.

An accomplice must be a participant in the commission of a crime. An accomplice is someone who could be prosecuted for the offense with which the accused is charged. Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Crim.App.1979). A witness does not become an accomplice because he knew of the crime and failed to disclose it, or even concealed it. Id. at 882. The record must show that a witness participated in the planning and promoting of the offense, or had knowledge 'of what was about to transpire. Russell v. State, 598 S.W.2d 238, 250 (Tex.Crim.App.1980).

Pee knew Mario had a pistol, but there is no evidence in the record he had knowledge a murder was planned. His testimony, and the sequence of events, indicate the killing came as a complete surprise and shock to Pee. There is less evidence that Johnson had any knowledge of a criminal plan. Without a common understanding, or proof of criminal intent, neither Pee nor Johnson can be called accomplice witnesses. Appellant’s grounds of error on this issue are overruled.

The direct and explicit eyewitness testimony of Pee and Johnson was sufficient to convict Mario of murder. Pee described the pistol in detail, and told how Mario shot Price in the head at the range of a few inches. Mario was standing several feet away. Johnson saw a muzzle flash and heard the report. Both witnesses testified that Mario shot Price after she had fallen to the ground. Appellant’s ground of error is overruled.

Finally, appellant asserts that statements made by the prosecutor in his closing argument were excessive and prejudicial. There was no objection at trial to the statements, and consequently, any error was waived. Sanchez v. State, 589 S.W.2d 422, 424 (Tex.Crim.App.1979).

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


author: PAUL PRESSLER, Justice. ELLIS, Justice,

text:
    Thomas Lloyd GREEN, Appellant, v. STATE of Texas, Appellee.
    No. B14-83-128-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 9, 1984.
    Review Granted Oct. 24, 1984.
    Clyde DeWitt, Rita Ryan, Houston, for appellant.
    Charles Houston, Dist. Atty., Bellville, for appellee.
    Before PRESSLER, CANNON and ELLIS, JJ.
   PAUL PRESSLER, Justice.

Appellant waived a jury trial and entered a guilty plea to the charge of escape. He plead not true to the charge of habitual offender. The court found the enhancement allegations true and assessed punishment at confinement for life.

In his first ground of error, appellant argues that the state failed to prove that his second prior offense was committed subsequent to January 28, 1963, the date of his conviction on his first prior offense. Included in the appellant’s pen packet, properly certified and admitted into evidence for enhancement purposes, are waivers relating to his second prior offense. The waiver signed by appellant, clearly established that he committed this second offense on November 16,1965. Appellant’s first ground of error is overruled.

In his second ground of error, appellant alleges that the trial court erred in proceeding to trial less than ten days after the appointment of his counsel as required by TEX.CODE CRIM.PROC.ANN. art. 26.-04(b) (Vernon 1981). It is true that the trial judge signed the order appointing Mr. Shepherd counsel for appellant on December 17, 1982, the day of trial. However, the December 7, 1982 docket sheet entry states: “D’s attorney unable to attend, reset for Thursday Dec. 9, 1982.” The December 9, 1982 docket sheet entry states: “D. appeared in custody—w/counsel Mr. Shepherd_” The record shows appellant had counsel on December 7th. Mr. Shepherd is designated by name as the counsel who appeared with him on December 9th. There is no suggestion in the record that his counsel on December 7th was different from his counsel on December 9th. There is no record of substitution of counsel or any request to delay trial because of a substitution of counsel between December 7th and 9th. The state has clearly sustained its burden in establishing a fact situation where even the casual observer can see easily that the requirement was properly met. The requirement of Article 26.04(b) has been followed and appellant's second ground of error is overruled.

In his third ground of error, appellant contends that the state did not prove that he was “under arrest” at the time of the escape as required by TEX.PENAL CODE ANN. § 38.07(c)(1) (Vernon 1974). The state offered a stipulation of evidence signed by appellant which stated in part that he did “knowingly and intentionally escape from the custody of T.A. Maddox, a peace officer, after I had been arrested ...” (emphasis added). Appellant contends the phrase “after I had been arrested” does not meet the requirement of showing that he was “under arrest.” We disagree. While the language of the stipulation does not track the statute, the language is sufficient to satisfy the statutory requirements. Garcia v. State, 537 S.W.2d 930, 932-933 (Tex.Crim.App.1976). Appellant’s third ground of error is overruled.

The judgment is affirmed.

ELLIS, Justice,

dissenting.

In his second ground of error, appellant asserts error in the trial court’s proceeding to trial less than ten days after the appointment of counsel. Article 26.04(b), Vernon’s Ann.C.C.P. provides:

“The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

The trial judge signed an order appointing Mr. Shepherd counsel on December 17, 1982, the day of trial. The docket sheet from the court reflects that on December 7, 1982, “D’s attorney unable to attend re-set for Thursday Dec. 9, 1982.” On December 9,1982, the following docket entry appears: “D. appeared in custody—w/counsel Mr. Shepherd....” The record contains no written waiver of the ten (10) days to prepare for trial. There is no proof that the attorney who was unable to appear on December 7, 1982, was in fact trial counsel, Mr. Shepherd. Given the state of the record I cannot say it to be affirmatively shown that court appointed counsel had at least ten days to prepare for trial. Pollin zi v. State, 541 S.W.2d 445 (Tex.Crim.App.1976). There was no motion for continuance and no objection was voiced at the time of trial nor was such contention raised on motion for a new trial. However, the Court of Criminal Appeals has held that this contention may be raised for the first time on appeal. Houston v. State, 490 S.W.2d 851, 852 (Tex.Crim.App.1973); Steward v. State, 422 S.W.2d 733 (Tex.Crim.App.1968).

The Court of Criminal Appeals has held that it is the actual preparation time, not the time of formal appointment, that determines whether the defendant has been given the mandatory ten (10) days preparation time for trial as set out in Article 26.04(b). Hamel v. State, 582 S.W.2d 424 (Tex.Crim.App.1979); Henson v. State, 530 S.W.2d 584 (Tex.Crim.App.1975); Moore v. State, 493 S.W.2d 844 (Tex.Crim.App.1973).

In the instant case the record reflects that the trial attorney, Mr. Shepherd appeared for the first time on December 9, 1982 and tried the case on December 17, 1982. Thus the record does not reflect that trial counsel had ten days to prepare for trial. The requirement of Article 26.04(b) is mandatory. Moreno v. State, 659 S.W.2d 395 (Tex.Crim.App.1983); Peters v. State, 575 S.W.2d 560 (Tex.Crim.App.1979); Crothers v. State, 480 S.W.2d 642 (Tex.Crim.App.1972).

Article 26.04(b) has not been complied with. I would sustain appellant’s second ground of error and remand the case for a new trial.

      . When entering an order appointing counsel, trial courts should recite in that order how long the attorney has represented appellant prior to the appointment.


author: COUNTISS, Justice.

text:
    Ex parte Jessie MALDONADO.
    No. 07-83-0278-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 14, 1984.
    Discretionary Review Refused July 18, 1984.

      Chuck Lanehart, Chappell, Lanehart & Aldridge, Inc., Lubbock, for appellant.
    Jim Bob Darnell, Dist. Atty., Hollis M. Browning, Asst. Dist. Atty., Lubbock, for appellee.
    Before DODSON, COUNTISS and BOYD, JJ.
   COUNTISS, Justice.

By this appeal from the trial court’s refusal to grant relief in a habeas corpus proceeding, appellant contends a pending felony indictment against him should be dismissed because prosecution under the indictment will violate constitutional double jeopardy provisions. We affirm.

While on probation for a felony offense, appellant was arrested and indicted for burglary of a habitation with intent to commit rape. Tex.Penal Code Ann. § 30.-02(a)(1) (Vernon 1974). After appellant was indicted, the State filed a motion to revoke his probation, alleging the burglary offense as a ground for revocation. The trial court heard the evidence and denied the motion, ruling that the State had not proved the elements of burglary of a habitation with intent to commit rape by a preponderance of the evidence. Contending he is being subjected to double jeopardy, appellant now seeks to prevent the State from going to trial on the indictment charging him with the offense the State was unable to prove in the revocation hearing.

Appellant presents a well-reasoned argument, grounded on Article 1, § 14 of the Texas Constitution, the Fifth Amendment of the United States Constitution, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), in support of his contention that the unsuccessful attempt by the State to obtain a revocation of his probation bars his subsequent prosecution in another proceeding based on the same facts. However, this court must follow the precedents established by the Court of Criminal Appeals, and affirm the denial of habeas corpus relief.

Settles v. State, 403 S.W.2d 417 (Tex.Crim.App.1966), is directly in point. In that case, as here, the State attempted unsuccessfully to revoke the appellant’s probation and later prosecuted him successfully on the same facts that were tendered in support of the motion to revoke probation. In rejecting a double jeopardy plea, the court said that presentation of evidence of a criminal offense in support of a motion to revoke probation does not constitute jeopardy and will not bar a subsequent prosecution for the same offense. This is especially true, the court noted, where the trial court declined to revoke probation.

The same conclusion has been reached in related fact situations. Davenport v. State, 574 S.W.2d 73, 74 (Tex.Crim.App.1978); Banks v. State, 503 S.W.2d 582, 584 (Tex.Crim.App.1974); Bass v. State, 501 S.W.2d 643, 644 (Tex.Crim.App.1973) cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 873 (1974). The rationale of the cited cases is that a probation proceeding is essentially administrative in nature; thus, the defendant is not afforded the full range of constitutional and statutory protections available at a criminal trial. Davenport, 574 S.W.2d at 75. Accordingly, the double jeopardy provisions of the Texas and the United States constitutions are not offended when evidence used in an unsuccessful, Settles, supra, or successful, Banks, supra, attempt to revoke probation is later used to prosecute the defendant in a different case. Likewise, the State may continue to use the same incident as a basis for revoking a defendant’s probation until it is successful. Davenport, 574 S.W.2d at 74-76; Bass, 501 S.W.2d at 643-44.

Appellant acknowledges the negative effect of Settles on his contention, but points out that it was decided before the United States Supreme Court decided Ashe and Breed. However, the Court of Criminal Appeals’ opinion in Davenport, written after the cited federal cases, adhered to the principles of Settles and again held that state and federal jeopardy provisions are not activated by a probation revocation hearing. Davenport, supra; also see, Shaw v. State, 622 S.W.2d 862, 864 (Tex.Crim.App.1981). Appellant’s argument fails because its initial premise, that a revocation hearing is an adjudication, is contrary to established law. Therefore, appellant’s ground of error is overruled.

The judgment is affirmed.

      . The procedural posture of the case, and our jurisdiction over it, conform with Ex parte Robinson, 641 S.W.2d 552, 553-55 & nn. 4, 7 (Tex. Crim.App.1982).

      . Settles, 403 S.W.2d at 418. The result of the revocation hearing is immaterial, however. The State need not be successful in order for jeopardy to attach. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

      . Although Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) represent expansions of federal double jeopardy protection, neither is factually similar to this case. In Ashe, the Court said a defendant acquitted on a charge of robbing a poker player could not be tried for robbing another player in the same game. In Breed, the Court said a juvenile subjected to adjudicatory proceedings could not be tried as an adult for the same events that supported the juvenile proceeding.

        Ashe reveals the res judicata aspects of double jeopardy. Because the supervision of probationers is more of an administrative function than a judicial function, a revocation hearing is not considered to be a trial. Cross v. State, 586 S.W.2d 478, 481 (Tex.Crim.App.1979). Any decision reached is an administrative determination rather than an adjudication of issues, and thus can have no preclusive effect. Davenport, 574 S.W.2d at 76.


author: JUNELL, Justice.

text:
    Jose Jesus MEJIA and Jose Refugio Mejia, Appellants, v. The STATE of Texas, Appellee.
    Nos. C14-83-498-CR, C14-83-499-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 23, 1984.
    Rehearing Denied March 22, 1984.
    Discretionary Review Refused Oct. 31, 1984.

      Bradford Yock, Houston, for appellants.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   JUNELL, Justice.

Each of the appellants was charged with the misdemeanor offense of intentionally and knowingly causing animals, namely game roosters, to fight in violation of TEX. PENAL CODE ANN. § 42.11(a)(6) (Vernon 1982).

Appellants filed identical applications for writ of habeas corpus for pre-conviction relief, claiming there is no valid statute under which they may be charged. The trial court issued each writ and then held one hearing on both applications. Following the hearing the court denied the requested relief and refused to discharge appellants from prosecution. Both appellants appeal from the trial court’s ruling, and their appeals have been consolidated for our disposition. We affirm.

Appellants present two grounds of error. The first ground contends there was error in the trial court’s refusal to discharge the appellants as there was allegedly no valid law under which they could be held.

Appellants make two arguments under ground of error one. First, they urge that neither Sections 42.11(a) nor 42.11(b) was intended or is sufficient to prohibit cockfighting or causing game roosters to fight.

Appellants argue that the inclusion of TEX.PENAL CODE art. 613 (repealed 1974) in the 1925 version of the Penal Code showed a prior distinction between animals and fowls, a distinction they believe is still continued by the legislature today. A portion of that 1925 article reads thus:

Any person who shall match or be concerned in matching any cock fight or who shall match or be concerned in matching or causing a fight between any animals or fowls, ... shall be fined not less than ten nor more than one hundred dollars.

Two years later the Texas Court of Criminal Appeals in Cinadr v. State, 108 Tex. Crim. 147, 300 S.W. 64 (1927), made this statement in a case on needlessly killing an animal: “There are statutes in this state expressly sanctioning the killing of wild animals and fowls (which are likewise animals) for sport_” (emphasis added). It would appear that, even under the former penal code, fowls were deemed animals.

Likewise, we see the recent revision of the penal code as consolidating several previous statutes protecting animals, e.g. articles 613 (matching cock fight), 1373 (maiming, wounding or disfiguring domesticated animals), 1373a (killing certain domestic animals), 1374 (cruelty to animals), 1375 (cruelty to impounded animals), 1376 (cruelty to fowls and poultry) and 1377a (killing, injuring, or molesting Antwerp Messenger or homing pigeons).

We view the new cruelty to animals statute as a concise consolidation of previous scattered statutes on cruelty to animals in general and of certain types of animals in particular. This consolidation was a part of the general scheme of revision. The new code reduced over 1700 articles to about 230 sections, slashed over 70 articles on theft to a workable 10, and simplified 57 articles on official misconduct to only 3 new sections.

Appellants also call our attention to a law recently enacted: Dog Fighting Act, ch. 305, 1983 TEX.GEN.LAWS 1610. They propose that the passage of that act, now Section 42.111 of TEX.PENAL CODE ANN., proves that the legislature has recognized the vagueness of Sec. 42.11. However, as appellee points out, the recent enactment covers many items other than just causing one dog to fight with another; it also includes, among other activities, the following: (1) participating in the earnings of a facility used for dog fighting, (2) enhancement of penalties for specified' activities connected with dog fighting, (3) compulsion of testimony from certain people, and (4) defenses peculiar to fights between dogs.

Appellants also contend there is no valid law under which they could be prosecuted as Sec. 42.11 is unconstitutionally vague and violates due process under TEX. CONST, art. I, § 19 and under U.S. CONST, amends. V and XIY. Appellants remind this court that no man should be held criminally responsible for conduct which he cannot reasonably understand to be proscribed. See Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971). Even though we agree the above concept is well established, we find ourselves unable to take the next step they suggest and hold that the term “animal” as defined in TEX.PENAL CODE ANN. § 42.-11 or the phrase “causing one animal to fight with another” contained therein is unconstitutionally vague.

We find the wording of TEX.PENAL CODE ANN: § 42.11 (Vernon 1982) to be quite clear. We quote in pertinent part:

(a) A person commits an offense if he intentionally or knowingly:
(1) tortures or seriously overworks an animal;
(2) fails unreasonably to provide necessary food, care, or shelter for an animal in his custody;
(3) abandons unreasonably an animal in his custody;
(4) transports or confines an animal in a cruel manner;
(5) kills, injures, or administers poison to an animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner’s effective consent; or
(6) causes one animal to fight with another.

The statute also includes the following definition of “animal”:

For purposes of this section, “animal” means a domesticated living creature and wild living creature previously captured. “Animal” does not include an uncaptured wild creature or a wild creature whose capture was accomplished by conduct at issue under this section.

For guidance in code construction we turn to TEX.REV.CIV.STAT.ANN. art. 5429b-2, §§ 3.01, 3.03 (Vernon 1982). Those sections point out that in enacting a statute, it is presumed a “just and reasonable result is intended” and that, in construing a statute, a court may consider such factors as the object sought to be attained, the circumstances under which it was enacted, and the legislative history. Id. The Committee Foreword to the 1970 proposed penal code pamphlet listed as the one of its major objectives consolidating, simplifying, and clarifying the substantive law of crimes. TEX.PENAL CODE ANN., XXIV, interp. commentary (Vernon 1974).

We overrule the first ground of error.

In ground of error number two, appellants argue that the trial court erred in refusing to consider the testimony of their witness, Dr. Charles McGaghy, a sociology professor who had done specific research in the area of cockfighting. During the hearing on the Writ of Habeas Corpus for pre-conviction relief regarding the constitutionality of the statute, appellants wanted to offer McGaghy’s testimony into evidence. Upon inquiry the court learned that the purpose of McGaghy’s testimony would be to show that cockfighting is not generally thought of as an illegal activity.

The trial judge denied the request to have McGaghy’s testimony entered into evidence but granted appellants’ request to perfect a bill of exceptions in order to make his testimony a part of the record.

After examining the court reporter’s notes of that testimony, we agree with the trial court’s decision that such testimony was irrelevant. Even though a bill of exceptions may be properly preserved for appellate review, it must still plainly demonstrate the error of which it complains. See Herrin v. State, 525 S.W.2d 27 (Tex.Crim.App.1975) and 5 TEX.JUR. 3rd Appellate Review § 395 (1980). In his testimony McGaghy traced the history of cockfighting from its beginning 3000 years ago in India. He stated that its illegality has been a recent phenomenon. He also stated that most of the legislative enactments in the United States on cruelty to animals in this century specify cocks.

Appellants expand this line of reasoning in their briefs by quoting statutes from twenty-eight other states which specifically use the word “cockfighting” despite the existence of general cruelty to animal prohibitions in their state statutes. While we find the results of appellants’ research edifying, we do not feel that it is material to a determination of the case at bar.

We overrule appellants’ second ground of error.

The order of the trial court denying each appellant the requested discharge from further prosecution is affirmed.


text:
    Alvaro Contreras FUENTES, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-252-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 1, 1984.
    Discretionary Review Granted Oct. 31, 1984.

      Humberto Trejo, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   JUNELL, Justice.

This is an appeal from a conviction for possession with intent to deliver a controlled substance, namely cocaine in violation of the Controlled Substances Act, Art. 4476-15, Sec. 4.03(c) (Vernon Supp.1982-1983). The original indictment charged appellant with possession with intent to deliver at least 400 grams of the substance. The state reduced that charge to read: “more than 28 grams and less than 200 grams.” Appellant pled nolo contendere to the reduced charge, and the trial court assessed punishment at seven years confinement in the Texas Department of Corrections. We affirm.

Appellant arrived at Houston Intercontinental Airport from Maracaibo, Venezuela, on September 14, 1982. He picked up his luggage and went into the “green area,” an area designated for passengers who claim they have nothing to declare. United States Customs Agent Clarence Sims, a man with three years expertise in the field, testified (1) there were two lumps on the back side base of appellant’s suitcase, a location his experience suggested might indicate contraband, (2) appellant appeared “very nervous,” and (3) appellant was sweating even though it was very cold in the passenger terminal.

Sims asked appellant to enter the “search room,” where Sims conducted a pat-down inspection. He then proceeded to drill holes into the base of the suitcase, discovered a white powder substance, and ran a test which proved the substance to be cocaine. Appellant was read his Miranda warnings and handcuffed to a chair.

Appellant was positively connected with the piece of luggage searched. He picked it up from the baggage carousel and carried it into the customs area. In addition, the tag on the luggage was identical with the tag on appellant’s airline ticket.

Appellant presents three grounds of error. He asserts, and the state concurs, that the caption of House Bill 730 (“An act relating to offenses and criminal penalties under the Texas Controlled Substances Act”) does not meet the standard prescribed by TEX. CONST, art. Ill, § 35 and is therefore unconstitutional. That section of the constitution provides that “No bill (except general appropriation bills, ...) shall contain more than one subject, which shall be expressed in the title _” We concede that House Bill 730 is unconstitutional, basing our holding on Ex Parte Crisp, 661 S.W.2d 956 (Tex.Crim.App.—1983).

However, even though the amendment to an act is declared unconstitutional and invalid, the prior act remains in full force and effect, regardless of the absence of a savings clause. Id.; See also White v. State, 440 S.W.2d 660 (Tex.Crim.App.1969). Under the prior act, possession of cocaine was an offense and the punishment received by appellant was within the prior act’s punishment range. Therefore, there was a valid law under which appellant was convicted.

Ground of error number one is overruled.

Appellant’s third ground of error asserts the trial court erred by accepting appellant’s nolo contendere plea conditioned upon the right to appeal matters raised by motion prior to the time of trial. During the acceptance of appellant’s plea, the court stated,

“If I follow this plea bargaining agreement you lose your right to appeal this case unless I give you permission to do so or unless an issue has been raised by motion prior to the time of trial?”

Before accepting the nolo contendere plea, the court obtained assurances from appellant that the plea was being offered freely and voluntarily; that no one promised, threatened, or coerced appellant to make the plea; that no one had offered an elusive hope that the governor would pardon the appellant; and that appellant had had no mental problems that would have kept him from understanding those proceedings. Compare with Thom v. State, 491 S.W.2d 425 (Tex.Crim.App.1973).

Such admonitions comply with TEX. CODE CRIM.PROC.ANN. art. 26.13 (Vernon Supp. 1982-1983), which outlines the admonishments the court shall give to a defendant before accepting a plea of guilty or nolo contendere.

Appellant signed a judicial confession which read partially as follows:

I understand the above allegations and I confess that they are true ....
In open court I consent to the oral and written stipulation of evidence in this case ....
I intend to enter a plea of no contest ....

The document in question constitutes a judicial confession. The record before this court indicates nothing to show that appellant entered his plea in reliance upon any defined agreement with the court giving him a right to appeal. Consequently we find that any right appellant might have had to appeal has been waived. One who judicially confesses in court is bound by that confession. See Harper ¶. State, 148 Tex.Crim. 354, 187 S.W.2d 570 (1945).

We find the facts in appellant’s situation to be strikingly similar to those in Allen v. State, 474 S.W.2d 480 (Tex.Crim.App.1971). In Allen the defendant filed a motion to suppress evidence allegedly obtained from an unlawful search. The motion was overruled, and the nolo contendere plea was entered and accepted. The Allen court noted that there was no agreement or stipulation nor was it even mentioned that the defendant entered his plea of nolo conten-dere subject to or in reliance upon his Motion to Suppress.

The court there also noted, as is true in appellant's case, that the defendant had not been induced to change his plea from not guilty and he had been properly admonished concerning his plea of nolo conten-dere. Id. at 482.

Appellant alleges in ground of error two that the trial court erred in overruling his Motion to Suppress the Evidence, based on an illegal search and seizure. Appellant has waived any error in the admission of the evidence due to his judicial confession and stipulation of evidence.

The conviction is affirmed.


text:
    Arthur FLORES, Appellant, v. STATE of Texas, Appellee.
    No. A14-82-570-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 15, 1984.
    Rehearing Denied April 12, 1984.
    Discretionary Review Granted Nov. 21, 1984.

      Thomas Rocha, Jr., San Antonio, for appellant.
    Jim Bob Darnell, Dist. Atty., Mary Ann Wiley, Lubbock, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

A jury found appellant, Arthur Flores, guilty of murder. The court assessed punishment at life imprisonment. He now complains on appeal that his conviction and sentence were based on improper and insufficient evidence, a defective charge and an unconstitutional statute. We affirm the judgment.

In Lubbock, Texas, appellant and three other men, Charles Bramblett, Dennis Smith and Odus Rogers, met and drove to the house of John Igo to carry out a preconceived plan to burglarize his home. Bramblett and Smith dropped appellant and Rogers off at the Igo home and drove to a nearby store to wait for them. Appellant and Rogers entered the Igo home through a sliding glass door. They were proceeding with their burglary plans when Mrs. Igo returned from the grocery store. She opened the front door and was shot three times. She attempted to run next door, but collapsed and died in front of the neighbor’s garage. Appellant and Rogers ran from the house, and then down an alley to the store where Bramblett and Smith were waiting. The four men then fled in the same car.

Two days later, Bramblett turned himself in and told police of the burglary and murder, thereby implicating the remaining participants. Smith and Rogers were then arrested and a warrant issued for appellant Flores. Later that night appellant Flores was located and arrested by Lubbock Police Officers Bournes and Smith. The latter read appellant his Miranda warnings at the scene of the arrest. Custody of appellant was then taken over by Lubbock Police detectives, Hudgens and Nevarez, who placed him in their car for transportation to the county courthouse. He was given another Miranda warning by Detective Neva-rez enroute to the courthouse. He was taken to the District Attorney’s office where he made a statement admitting to his part in the burglary. His statement was reduced to writing. He was again read his Miranda warning. He initialed the warning on the statement form, and then signed the statement.

In his initial ground of error, appellant now contends that his confession was the product of an illegal arrest and therefore should not have been admitted at trial. Appellant, however, readily admitted substantially the same facts as contained in his confession during direct examination by his attorney at trial. Under the doctrine of curative admissibility, the admission of improper evidence cannot be urged as a ground of reversal when the defendant gives testimony on direct examination which establishes the same facts as those to which he objected. Thomas v. State, 572 S.W.2d 507, 512-14 (Tex.Crim.App.1976). However, when such evidence is obtained by improper police practices, the State must prove that its illegal action did not impel the testimony. A defendant does not waive his objection to improper evidence because he is compelled to testify or otherwise seeks to refute, destroy or explain it. Thomas at 512-13. See also Nicholas v. State, 502 S.W.2d 169 (Tex.Crim.App.1973). It is clear from the record that appellant voluntarily testified at trial to the facts of the burglary in the expectation that he would not be implicated for the murder. His accomplices, Smith and Bram-blett, had already testified that appellant had participated in the burglary. Appellant thus testified not to overcome the impact of the previously obtained confession, but rather to limit his participation to the burglary alone. His testimony confirmed the facts of his confession rather than refuted them. There is no question he participated in the burglary; and under the law of parties, the jury was justified in rendering their verdict. His objection to the admissibility of the confession is thus waived and his first ground of error overruled.

Appellant contends in his second ground of error that there was insufficient evidence to sustain the guilty verdict. The general standard for reviewing the evidence is whether, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Girard v. State, 631 S.W.2d 162, 163 (Tex.Crim.App.1982). This case, however, involved a confession, circumstantial evidence, and accomplice testimony. In circumstantial evidence cases, the test is whether the evidence excludes every reasonable hypothesis other than guilt. Girard at 163. Since the appellant was charged under the law of parties, he could be held responsible for the murder if Mrs. Igo was killed in the attempt to carry out the conspiracy to commit burglary, and if such murder was in furtherance of it. See Tex.Penal Code Ann. § 7.02(b) (Vernon 1974). The uncontradicted evidence reveals that the four men conspired to burglarize the Igo home, that appellant and Rogers entered the home for that purpose, and that Mrs. Igo was shot during the furtherance thereof. Furthermore, appellant admitted that he knew Rogers had a gun, and therefore the shooting could have been anticipated. See Tex.Penal Code Ann. § 7.02(b). We find there was sufficient evidence of appellant’s guilt.

Appellant also contends the evidence was insufficient to corroborate the testimony of the accomplice witnesses. The proper test on appeal is to eliminate the accomplice testimony from consideration and determine whether there is other incriminating evidence tending to connect the accused with the commission of the offense. Meyers v. State, 626 S.W.2d 778, 780 (Tex.Crim.App.1982). Here appellant’s own testimony was that he participated in the burglary, and that he was aware that Rogers had a gun. This evidence clearly connects appellant with the commission of the crime, and his insufficiency ground of error is therefore overruled.

Appellant next contends that the felony-murder statute is unconstitutional because the State does not have to prove specific intent to cause death. See Tex.Penal Code Ann. § 19.02(a)(3) (Vernon 1974). We need not address this issue because appellant was neither charged nor convicted under the felony-murder statute; rather, his vicarious responsibility was grounded in the law of parties. Tex.Penal Code Ann. § 7.02(b). However, we do note that the Court of Criminal Appeals has addressed this issue in Rodriquez v. State, 548 S.W.2d 26, 28-29 (Tex.Crim.App.1977). The holding therein was that the culpable mental state is supplied and must be proved for the underlying felony offense which gave rise to the act. In any event, it is not relevant to this case.

Appellant complains in his fourth ground of error that the trial court improperly admitted hearsay testimony from Bramblett that Rogers said that appellant killed Mrs. Igo. The determination of whether the erroneous admission of hearsay evidence requires reversal of a conviction is done on a case-by-case basis. Vanderbilt v. State, 629 S.W.2d 709, 724 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982). We must determine from a review of the record whether the minds of an average jury would have found the State’s case significantly less persuasive had the testimony at issue been excluded. Id. Appellant testified to his presence at, and participation in, the burglary. Appellant insisted, however, that Rogers pulled the trigger and this possibility was covered in the jury charge. The jury was specifically charged on the law of parties, thus obviating the necessity for a finding that appellant actually fired the gun. Even without any accomplice testimony, there was ample testimony from appellant and other circumstantial evidence on which the jury could have relied. Appellant’s fourth ground of error is thus overruled.

Appellant next claims that the trial judge erred in submitting jury verdict forms only for murder and failed to submit verdict forms for conspiracy. Appellant contends that since the court defined conspiracy in the charge, there should have also been a jury form for the offense of conspiracy. The punishment for conspiracy is one category lower than the most serious felony that is the object of the conspiracy, which in this case would have lowered the charge to a second degree felony. Tex.Penal Code Ann. § 15.02(d) (Vernon 1974). The trial judge instructed the jury on the law of parties as contained in section 7.02 of the Penal Code, and then merely defined conspiracy as contained therein. Section 7.02(b) directs that all conspirators are guilty of the felony actually committed, and contains no provision for lowering the punishment. The trial judge properly instructed the jury and this ground of error is therefore overruled.

In the sixth ground of error, appellant contends that he was erroneously tried on charges of felony-murder and conspiracy, neither of which were contained in the indictment. Appellant points out that a trial court commits reversible error by instructing the jury that they may convict under a theory not alleged in the indictment. See Infante v. State, 612 S.W.2d 603, 604 (Tex.Crim.App.1981). However, in this case, appellant was charged in the indictment with first degree murder, not felony-murder, nor conspiracy. The judge’s instructions were therefore correct. The indictment made no reference to the offense of conspiracy; the jury was charged on the law of parties, and conspiracy was only incidentally defined therein. A trial court may charge the jury on the law of parties even though there is no allegation in the indictment. English v. State, 592 S.W.2d 949, 955 (Tex.Crim.App.1980). Appellant’s sixth ground of error is thus overruled.

In his final ground of error, appellant complains that the evidence is insufficient to sustain the court’s finding that defendant used and exhibited a handgun' during the commission of the offense. The court made no such finding. Rather, the court found in its judgment “that a deadly weapon, to wit: a handgun was used and exhibited during the commission of the offense, ...” The court does not make a finding that the defendant used and exhibited a deadly weapon during the commission of the offense. Even so, the court erred in making such finding because the jury is the exclusive judge of the facts except in rare instances where the law specifically directs otherwise, as in the case of presumptive proof. Tex.Crim.Proc.Ann. arts. 36.13, 38.04 (Vernon 1979). The Court of Criminal Appeals has specifically held that whether a firearm was used in the commission of an offense is a fact issue to be decided by the trier of facts. Ex parte Thomas, 638 S.W.2d 905, 907 (Tex.Crim.App.1982). However, here the error was harmless. The court’s finding did not activate any penalty provoking provisions against the appellant. Apparently, appellant’s ground of error here is directed at the probationary code provisions of Tex. Crim.Proc.Code Ann. art. 42.12 § 3f(a)(2) which provide that probation is not available:

(2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in Section 1.07(a)(ll), Penal Code, during the commission of a felony offense or during immediate flight therefrom. Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense or during immediate flight therefrom, the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment.

The only other effect of such a specific affirmative finding is the limitation of a defendant’s eligibility for release on parole. Tex.Code Crim.Proc.Ann. art. 42.12, § 15(b) (Vernon 1979).

Here, however, the appellant was convicted of the offense under the law of parties; and the jury by its verdict, did not find that he actually fired or exhibited the handgun as specifically required by these code provisions. There is no question that a handgun was used and, therefore, the trial court’s finding is harmless error. This court has the power to reform and correct the judgment as the law and nature of the case require when we possess the same corrective information that the trial court would have were the judgment reversed and remanded. Tex.Crim.Proc.Ann. art. 44.24(b) (Vernon Supp.1982-83). See Barecky v. State, 639 S.W.2d 943, 945 (Tex.Crim.App.1982). Accordingly, we reform and correct the judgment by deleting the following: “and the Court further finds that a deadly weapon, to wit: a handgun was used and exhibited during the commission of the offense, ...”

As reformed, the judgment is affirmed.


author: CANNON, Justice.

text:
    Jack Fenner ELLIOTT, Appellant, v. STATE of Texas, Appellee.
    No. A14-82-777-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 15, 1984.
    Rehearing Denied April 5, 1984.
    Review Granted Oct. 24, 1984.

      Frank Sheppard, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

This is an appeal from a conviction for gambling promotion in violation of Tex.Penal Code Ann. § 47.03 (Vernon 1974). Trial to a jury, punishment by the Court at seven years .and a $5,000.00 fine. Appellant raises five grounds of error attacking the search warrant, the admission of sound recordings, the concealment of the informer’s identity, and the prosecutor’s failure to make pre-trial disclosure of an analysis of appellant’s handwriting. We affirm.

Vice Officer L.E. Doreck of the Houston Police Department received information from a confidential informant that appellant was taking bets on football games. The informant told Doreck that for several months he had occasionally telephoned appellant and obtained current line information on college and professional football games, and placed bets on those games. Doreck verified the address and telephone number given to him by the. informant as that of appellant. Doreck also learned that appellant had been arrested on April 12, 1977 for promotion of gambling at the same address. Based on this information, Doreck obtained a Search and Arrest Warrant for appellant. On November 22, 1981, appellant was arrested at his home. At that time, the officers seized “line” sheets, “recap” sheets, and other “gambling paraphernalia” from appellant’s residence. While appellant was being arrested, vice officer Fred Medley placed recording devices on two of appellant’s telephones with which he taped numerous calls from “bettors.” The “bettors” inquired about the current “line” on games and placed bets.

In his first ground of error, appellant contends that his conviction was based upon “illegally seized evidence” because the affidavit supporting the search warrant “failed to state facts sufficient to constitute probable cause.” He argues that the affidavit failed to comply with the requirements of: U.S. Const. Amend. IV; Tex. Const. art. I, § 9, and; Tex.Code Crim. Proe.Ann. art. 18.01 (Vernon Supp.1982-1983). Appellant relies upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) in support of his attack on the search warrant affidavit. Appellant’s reliance is misplaced, however, because the “two-pronged” Aguilar-Spinelli test was abandoned by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In its place the court reaffirmed the “totality of the circumstances” that traditionally has informed probable cause determinations. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Texas adopted the Gates analysis for search warrant affidavits in Hennessy v. State, 660 S.W.2d 87 (Tex.Crim.App.1983).

In Hennessy, the affidavit contained “multiple hearsay”, and the informant Urquhart “had no personal knowledge of any illegal substances at [Hennessy’s] residence.” Urquhart’s knowledge was based on statements made by a man known as “Barnes.” Barnes told Urquhart that he “scored” his narcotics from Hennessy’s residence. Urquhart learned that Barnes planned to rob Hennessy for Dilaudid. Based upon the circumstances surrounding the planning of the robbery and upon statements made by Barnes at the time of his arrest, a search warrant was obtained for the Hennessy residence.

The affidavit for the search warrant included the following instances of corroboration by police efforts:

“Jerry Carpenter, a Houston Police Officer known to your affiant, placed a transmitting device on the said Urquhart.
******
“The said Carpenter monitored these conversations and overheard the individuals discuss the details of the robbery. This information was told to your affiant by the said Jerry Carpenter.
“At the time of his arrest the said Barnes told your affiant that ‘If you had waited a few more minutes, you would have gotten the Dialuaded [sic] and had me for robbery.’ Your affiant asked the said Barnes what he meant by that statement and he told your affiant that his girl friend Iwona Provenzzano had just called the Doctor Hennessy’s residence and had been told by Chris, the Doctor’s wife, that the Dialuadid [sic] would be there shortly that it would be arriving shortly.”

After finding a substantial basis for crediting each level of hearsay, the Court of Criminal Appeals found that “probable cause existed for the search based on the ‘totality of the circumstances’ presented in the affidavit.” Hennessy at 92.

Therefore, we will evaluate the validity of the search warrant in this case under the “totality of the circumstances” standard. Illinois v. Gates, 103 S.Ct. at 2332; Hennessy v. State, 660 S.W.2d 87 at 92 (Tex.Crim.App.1983).

The affidavit in the instant case provides, in pertinent part, that:

“On October 22, 1981, your affiant was contacted by a confidential informant, who has given your affiant information on several past occasions concerning criminal activities and on each and every past occasion your affiant found this information to be true and correct. [T]he informant ... stated to your affi-ant that a person, known to the informant, as Jack Elliott, was currently conducting an illegal bookmaking operation. The informant stated to your affiant that he, the informant, had been personally betting with Jack Elliott for the past several months and that he would contact Elliott by calling Telephone number 462-2019 and that Elliott would give your informant current line information on both college and professional football games as well as receive and record any bets which the informant wished to place with Elliott. The informant further gave your affiant a physical description of Elliott and said that Elliott was approximately 6‘ tall, 220 lbs with a beer belly and was in his late 20’s.
“On October 23, 1981, your affiant met with Sgt. S.D. Plaster who is the Supervising Officer of the Gambling Squad of the Houston Police Department Vice Division, and relayed the aforesaid information to Plaster. Further, your affiant requested Plaster to contact the Southwestern Bell Telephone Company in order to ascertain billing information on telephone number 462-2019. Later that same date, Plaster related to your affiant that he, Plaster, had learned from Southwestern Bell Telephone Company that telephone number 462-2019 is an unlisted number installed at 3601 Lazy Spring, Houston, Texas, and is billed to Jack F. Elliott at that address. In addition thereto, your affiant contacted Houston Lighting and Power Company and determined that the utilities at 3601 Lazy Spring, Houston, Texas, were billed to Jack F. Elliott at that address and that the records of Houston Lighting and Power Company show that Elliott’s phone number was 462-2019. Further, your affi-ant checked the records of the Houston Police Department Vice Division and learned that Jack Elliott had been arrested on April 12, 1977 for promotion of Gambling and this arrest occurred at 3601 Lazy Spring.
“On October 25, 1981, Elliott gave the informant current line information on both college and professional football games and the informant placed several bets with Elliott. On that same date, your affiant personally went to 3601 Lazy Spring, Houston, Texas, and found this to be a beige single story residence. “On October 26, 1981, your affiant again spoke with the informant who stated to your affiant that he again called telephone number 462-2019 and again, placed a bet with Jack Elliott.
“On November 1, 1981, your affiant again spoke with the confidential informant who stated to your affiant that he, the informant, again called telephone number 462-2019 and again placed a bet with Jack Elliott.
“On November 2, 1981, your affiant again spoke with the confidential informant who stated that he had again called telephone number 462-2019 and again placed bets with Jack Elliott on football games scheduled to be played.
“On November 18, 1981, your affiant again spoke with the aforesaid confidential informant who stated to your affiant that Jack Elliott is still receiving and recording bets and can still be reached at telephone number 462-2019.
“Your affiant has .related all of the aforesaid information contained in this affidavit to Sgt. S.D. Plastér. Your affiant personally knows that Plaster has been assigned to the Gambling Squad of the Houston Police Department for approximately seven years and has participated in hundreds of gambling investigations and arrests. Further, Plaster has stated to your affiant that it has been his experience that bookmaker[s] routinely keep gambling paraphernalia including, but not limited to, line sheets, recap sheets and bet slips inside of the premises where they are receiving and recording bets. Based upon the information received by your affiant and the investigation that your affiant has done in this case, coupled with Plaster’s experience with gambling investigations, it is Plaster’s opinion that Gambling paraphernalia is currently located in 3601 Lazy Spring, Houston, Harris County, Texas.” (Emphasis added).

The instant affidavit clearly sets forth a basis for the “veracity” of the informant; he had given reliable information in the past. His information was corroborated by independent police inquiries directed to the Southwestern Bell Telephone Company and the Houston Lighting and Power Company. The affiant, officer Doreck, personally verified the description and address of the Elliott residence given to him by the informant.

The affidavit sufficiently states the informant’s “basis of knowledge”. Unlike the affidavits in Aguilar and Spinelli, the underlying circumstances forming the informant’s basis of knowledge” of criminal activity were set forth in the instant affidavit. We acknowledge that “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants .... ” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). We conclude that the magistrate had a “substantial basis” for concluding that probable cause existed for the search based on a “totality of the circumstances” analysis. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the search warrant failed to meet the requirements of article 18.04 of the Texas Code of Criminal Procedure. We disagree.

One of the requirements of a valid search warrant is “that it identify, as near as may be, that which is to be seized....” Tex.Code Crim.Proc.Ann. art. 18.04(2) (Vernon 1977). The affidavit which supports the search warrant in question describes the things to be seized from appellant’s house as “... any and all gambling paraphernalia that may be located therein.” The search warrant itself contains the same language. The Fourth Amendment prohibits general warrants which fail to particularly describe the property to be seized. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). “The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927).

It is well-settled that the description required depends upon the thing being described. Gonzales v. State, 577 S.W.2d 226, 228 (Tex.Crim.App.1979). And, when “things to be seized” (i.e., books, papers, records, and documents) are subject to First Amendment concerns, “and the basis for their seizure is the ideas which they contain,” the warrant “is to be accorded the most scrupulous exactitude.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). See also Gonzales v. State, 577 S.W.2d at 228. However, the First Amendment concerns raised in Stanford are not present in the instant case. See United States v. Auterbridge, 375 F.Supp. 418 (S.D.N.Y.1974).

A warrant specifying for seizure “bookmaking paraphernalia” was held to be sufficiently particular in Spinelli v. United States, 382 F.2d 871, 886 (8th Cir.1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). “When the circumstances of the crime make an exact description of the fruits and instru-mentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.” (Emphasis added) Id. The Fifth Circuit has approved of the description “gambling paraphernalia.” James v. United States, 416 F.2d 467, 473 (5th Cir.1969), cert denied, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87 (1970).

In the case at bar, the warrant identified the items to be seized “as precisely as the nature of the activity permitted.” Id. at 473. We conclude that the warrant for “gambling paraphernalia” is not a general warrant in contravention of the Fourth Amendment to the Constitution of the United States and of Tex.Code Crim.Proc.Ann. art. 18.04(2) (Vernon 1977). Appellant’s second ground of error is overruled.

Appellant contends in his third ground of error that the trial court erroneously admitted two sound recordings into evidence. Appellant argues that the State failed to lay the proper predicate for introduction of sound recordings.

The seven requirements for admission of a sound recording are set out in Bates v. State, 587 S.W.2d 121, 131 (Tex.Crim.App.1979). See also Edwards v. State, 551 S.W.2d 731, 733 (Tex.Crim.App.1977).

Houston Police Officer Fred Medley testified that he tested the tape recorder prior to making the tapes and determined that it was in good working condition; that he was competent to operate the recorder and had done so on several previous occasions; that he played the tapes, after recording, to verify their accuracy; that the tapes were locked in an evidence locker and remained in his custody precluding any changes, additions or deletions; that the tapes remained in the locker until the day of trial; that a certain voice was his and other voices were bettors calling, and; that many calls were placed by bettors to obtain the “line” on various football games. We find that the State laid the proper foundation for introduction of the tapes; the trial court properly admitted the recordings into evidence. Appellant’s third ground of error is overruled.

In his fourth ground of error, appellant contends the trial court wrongfully denied discovery of the informer’s identity.. Appellant argues that the informer “is certainly a material witness to appellant’s case

The identity of an informant need be disclosed only when the informant (1) participated in the offense; (2) was present at the time of the offense or arrest; or (3) was otherwise shown to be a material witness to the' transaction or as to whether appellant knowingly committed the act charged. Carmouche v. State, 540 S.W.2d 701, 703 (Tex.Crim.App.1976). Those tests were not met in the instant case as the appellant failed to show that the informer either participated in the offense, or was present at the time of the offense, or was a material witness to the offense.

By his fifth ground of error, appellant contends that his conviction is void because the State failed to timely disclose requested material evidence favorable to him. Appellant argues that certain handwriting comparison information would have been favorable to him if he had known about it prior to trial. We do not agree.

It is reversible error if the prosecutor suppresses evidence which may exonerate the defendant or be material to his defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Crutcher v. State, 481 S.W.2d 113, 115 (Tex.Crim.App.1972). The suppression of such evidence is a violation of due process whether inadvertent or not. Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196; Crutcher v. State, 481 S.W.2d at 116. In such cases, the standard applied is whether the evidence may have had an effect on the outcome of the trial. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Means v. State, 429 S.W.2d 490 (Tex.Crim.App.1968).

On May 4, 1982, the trial court granted the State’s motion to obtain a handwriting sample from appellant. The trial began on June 28, 1982, almost two months after the State’s motion had been granted. Appellant has not made a showing that at the time of trial he had no knowledge of a comparison test having been performed on his handwriting sample. Absent such showing, the proof in the record is inadequate to support an allegation of improper suppression. See Palafox v. State, 484 S.W.2d 739, 745 (Tex.Crim.App.1972); Evans v. State, 444 S.W.2d 641 (Tex.Crim.App.1969); Hinkle v. State, 442 S.W.2d 728 (Tex.Crim.App.1969).

Sergeant Stan Plaster of the Houston Police Department, Vice Division, testified that he took appellant’s handwriting sample and submitted it to the document examiner of the Houston Police Department. Plaster further testified that the test results were “inconclusive.” Appellant argues that had he known of such a test, he could have called the document examiner to testify to his benefit. In view of Plaster’s testimony that the results of the handwriting comparison were “inconclusive”, appellant was not denied the benefit, if any, of the comparison. Even if appellant had proven that he had no knowledge of the results of the comparison test, we do not think additional testimony on the matter from the document examiner would have had an effect on the outcome of the trial. Appellant’s fifth ground of error is overruled.

The judgment of the trial court is affirmed.