text:
    Samuel Kay SHANNON, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-169-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Discretionary Review Refused Jan. 23, 1985.
    See also, Tex.App., 681 S.W.2d 142.

      John Keirnan, Houston, for appellant.
    Timothy Taft, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   SEARS, Justice.

Appellant was convicted of aggravated robbery, under TEX.PENAL CODE ANN. § 29.03 (Vernon 1974), and was sentenced to life imprisonment as a habitual offender. We affirm his conviction.

A complete recitation of the facts is unnecessary to the disposition of this appeal. Specific facts will be discussed only so far as they relate to specific grounds of error.

In ground of error one, Appellant asserts that his right to a speedy trial, as provided for in TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1984), was violated because 163 days elapsed between the date of his arrest and the date he went to trial. We find no violation of the Speedy Trial Act.

An announcement of ready for trial was prepared by the State and file stamped August 16, 1982. However, Appellant was not arrested until September 14, 1982, and was not indicted until October 8, 1982. Two agreed motions to reset were filed and Appellant’s attorney wrote “No waiver of Speedy Trial” on each document. On February 16, 1983, Appellant moved to dismiss the charges against him for failure to comply with the Speedy Trial Act. Appellant and the State both announced ready on February 21, 1983, and trial commenced the next day.

The court heard Appellant’s motions pri- or to trial. The District Attorney testified that he caused the announcement of ready to be filed on August 16, 1982, he presented the case to the Grand Jury on October 8, 1982, and Appellant was indicted the same day. He further testified that “[0]n the date of the indictment, as well as the date of the announcement of ready, the State was ready to go to trial in the case .... ” He also informed the court that the State and the defense had at all times requested the court coordinator to give them the earliest possible date for trial and that she did so. On cross-examination, Appellant queried the District Attorney only as to the written announcement of ready and not as to the court docket and the earliest possible trial setting. The court - coordinator was not available for testimony at this time. She was never called to testify in order to supplement the record although the trial judge indicated that he felt her testimony was necessary.

We note that the written announcement of ready, which was file stamped August 16, 1982, was filed before the arrest, complaint or indictment. Thus, it was filed before the action ever commenced and was prima facie invalid. However, the District Attorney’s testimony that the State was ready at the time of indictment was a valid announcement of ready and constituted a prima facie showing of conformity to the Speedy Trial Act subject to rebuttal by Appellant. Appellant failed to rebut this showing of readiness. See Barfield v. State, 586 S.W.2d 538, 542 (Tex.Crim.App.1979). The trial court properly overruled Appellant’s motion. Ground of error one is overruled.

In ground of error two, Appellant argues that the trial court erred in overruling his Motion to Suppress Evidence seized as the result of an illegal arrest. So far as we can understand Appellant’s convoluted argument, we believe he is arguing that because his arrest was illegal, his in-court identification must be suppressed. We presume this is his proposition because the only evidence seized related to another trial of Appellant; none of the evidence seized was admitted in the trial of this case.

Appellant became a suspect in a series of residential burglaries on September 12, 1982. The officers involved in the investigation checked with the Warrants Division of the City of Houston and determined that there were two outstanding traffic warrants on Appellant. At that point, the officers set up surveillance on Appellant’s house. They observed Appellant leave his house and drive away on September 14 and followed him until he parked and exited the car in the parking lot of a convenience store. He was arrested on the basis of the outstanding traffic warrants and the automobile was searched pursuant to an inventory search.

Appellant contends that his arrest was illegal because the traffic warrants had expired and were void. They were issued on December 20, 1978, and contain the language “[Y]ou are commanded to arrest Defendant instanter and bring him before this court within ninety days of this date, January 10, 1979.” Appellant, however, cites no authority holding that traffic warrants can expire and we have found no authority to that effect.

Consequently, we hold that no illegal arrest occurred and that any “evidence seized” was properly admitted. We further note that Appellant did not object to the in-court identifications at time of trial and, therefore, has waived any error on appeal. Nelson v. State, 607 S.W.2d 554, 555 (Tex.Crim.App.1980). We overrule ground of error two.

In ground of error three, Appellant specifically alleges the in-court identification “was tainted by lineup procedures which denied [him] due process.” We find no merit to this argument because both complainants testified at the hearing on the Motion to Suppress In-Court Identification that their ability to identify Appellant in court was independent of any prior identifications. Both complainants testified that the lighting conditions in the house where the robbery occurred were excellent and that they had observed him for between forty minutes and one hour. We hold that the in-court identifications of Appellant were based upon observations made at the time of the commission of the crime and had an origin independent of any prior alleged improper identification procedures. Thomas v. State, 605 S.W.2d 290, 292 (Tex.Crim.App.1980) (en banc). Ground of error three is overruled.

Appellant’s final ground of error deals with an alleged fatal variance between the pleading and the proof of the enhancement paragraph. He argues that the indictment refers to an offense committed on March 1, 1979, but that the proof offered, the Order Revoking Probation — Imposition of Sentence, showed March 7, 1977 as the date the order was signed. Appellant concludes that a fatal variance occurred, citing Zybura v. State, 420 S.W.2d 954 (Tex.Crim.App.1967), and Colvin v. State, 172 Tex.Crim. 310, 357 S.W.2d 390 (1962).

Appellant incorrectly informs this court that the order was signed on March 7, 1977, when in reality it was signed on March 7, 1979. Further, the order states “that the sentence is to commence on the 1st day of March, 1979.” Thus, it appears the pleadings and the proof did not vary. Even if we were to hold that there was a variance, we do not hold that it was a fatal variance. See Cole v. State, 611 S.W.2d 79 (Tex.Crim.App.1981). Cole reiterates the long-established rule that the degree of specificity required in charging the original offense is not required when alleging prior convictions for enhancement purposes, id. at 80, and that the purpose of the enhancement allegation is merely to provide the defendant with notice of the prior conviction upon which the State relies. Id. at 82. The court also points out that “the trend in the law regarding allegations of prior convictions has generally been toward a relaxation of the rigid rules of the past.” Id. at 81. The standard of review to be applied in cases such as this, where there is a discrepancy in dates, is whether Appellant was misled or prejudiced in the preparation of his defense. Absent such injury, no fatal variance occurs. Id. at 82. Further, Colvin, which was relied on by both Appellant and by the Zybura court, was expressly overruled in Cole. Id.

Applying this standard of review to our case, we hold no fatal variance occurred. Appellant did not argue or prove that the variance misled him or prejudiced his position. The six day “variance” was the time expired between the imposition of sentence and the signing of the order. Ground of error four is overruled.

In addition to the brief filed by counsel for Appellant, Appellant has filed a pro se brief. There is no right to hybrid representation in Texas. Rudd v. State, 616 S.W.2d 623 (Tex.Crim.App.1981). Appellant’s pro se brief presents nothing to review. We have, however, examined the contentions asserted therein and find no error.

The conviction is affirmed.


source: Caselaw Access Project

author: SEARS, Justice.

license: Public Domain

text:
    Samuel Kay SHANNON, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-559-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 14, 1984.

      John P. Keirnan, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.

      Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Appellant was convicted of aggravated robbery under TEX.PENAL CODE ANN. § 29.02(a)(1) (Vernon 1974), and was sentenced to life imprisonment as an habitual criminal. The trial judge granted the State’s motion to “stack” this sentence on his other life sentences. We affirm the conviction.

The facts will be discussed only insofar as they relate to specific grounds of error.

In ground of error one, Appellant asserts that his “right to a speedy trial” was violated. Appellant first argues that U.S. CONST, amend. VI guarantees the right to a speedy trial and that Texas has codified this right in TEX.CODE CRIM. PRO.ANN. art. 32A.02 (Vernon Supp.1984). This is an incorrect statement. The constitutional right to a speedy trial is in addition to and preceded the statutory right. See Ostoja v. State, 631 S.W.2d 165, 167 (Tex.Crim.App.1982); Fraire v. State, 588 S.W.2d 789, 791 (Tex.Crim.App.1979) (en banc); Barfield v. State, 586 S.W.2d 538, 539-40 (Tex.Crim.App.1979). Nevertheless, we have reviewed Appellant’s claim that his statutory right to a speedy trial was violated and conclude that it was not.

Appellant raised the same argument in his appeal of another conviction which we affirmed. See Shannon v. State, 681 S.W.2d 139 (Tex.App.—Houston [14th Dist.] 1984, pet. ref’d). The State prepared an announcement of ready which was file stamped August 16, 1982, Appellant was arrested on September 14, 1982, and was indicted on October 8, 1982. He agreed to two resets, although he wrote “No waiver of Speedy Trial” on each reset form. He proceeded to trial in his other case on February 21, 1983. On April 18, 1983, an off-docket reset was agreed to, and the trial was scheduled to begin on June 13, 1983. On June 13, 1983, the case was reset to July 5, 1983, because the State’s key witness was on vacation and unavailable for trial. Trial began on July 5, 1983.

The prosecutor testified that the State had been ready to proceed to trial since the date its announcement of ready was filed, and since the date Appellant was indicted, October 8, 1982, with the exception of the time its witness was on vacation. The State further testified that it had contacted and subpoenaed all witnesses before the expiration of 120 days and that it had Appellant’s pen packet in its possession before Appellant was indicted. The court coordinator testified that she was aware of Appellant’s right to a speedy trial and had given the parties the earliest available trial date. Appellant failed to rebut the announcement of ready; therefore, we find no error.

Appellant next argues that his constitutional right to a speedy trial, as provided for in the U.S. CONST, amend. VI and TEX. CONST, art. 1, § 10, was violated. The State correctly points out that this claim was presented for the first time on appeal. Thus, error, if any, was waived. Fraire, 588 S.W.2d at 791. Ground of error one is overruled.

In ground of error two, Appellant argues that the trial court erred when it failed to quash the indictment because it was duplicitous and violated TEX.CODE CRIM. PROC.ANN. art. 21.24 (Vernon Supp.1984). We find no error.

A three count indictment, charging Appellant with one count of murder and two counts of aggravated robbery, was returned by the Grand Jury. We first observe that the indictment was not duplicitous or defective because each count arose out of the same criminal transaction. See Meeks v. State, 653 S.W.2d 6, 11-12 (Tex.Crim.App.1983). Thus, art. 21.24 was not violated. Further, even if the indictment had been defective, Appellant’s ground of error is moot because the State abandoned two counts and proceeded to trial on one count of aggravated robbery. See id. at 10. Ground of error two is overruled.

Appellant contends, in ground of error three, that the trial court erred in overruling his Motion to Suppress evidence. He specifically argues that his arrest was illegal because it was made on the basis of two outstanding traffic warrants and that the inventory search of his car exceeded “the recognized purpose” of an inventory search because the police had “impure motives” and they searched inside a briefcase.

We concluded Appellant was legally arrested in his other appeal, see Shannon, 681 S.W.2d at 141, and rely on our reasoning in that opinion to reach the same holding here. However, testimony given at this trial by one of the arresting officers allows us to augment that holding.

That officer testified that Appellant was a suspect in several recent burglaries. He checked for outstanding warrants for Appellant and found two outstanding traffic warrants. He then set up surveilance on Appellant’s house for several days in an attempt to catch Appellant in his automobile. A stolen credit card had recently been used to purchase gasoline for that automobile, and the officer suspected the vehicle might contain contraband from other robberies. He therefore chose to wait several days before he executed the outstanding warrants. We find no fault with this strategy.

We hold that an outstanding warrant for the arrest of an individual may be executed by law enforcement officers at whatever time and place they choose. It does not have to be executed within any defined period of time after discovery or issuance. Law enforcement officers, using their best judgment, and keeping in mind the best interests of society in general and not the interests of the suspect in particular, may delay the execution of the warrant until such time as they feel its execution may result in the discovery of contraband or evidence of any other crime. This in no way deprives the individual of any rights of privacy, so long as the search is incident to the arrest or, as in this case, based upon some other lawful purpose. An individual has no right to expect that he will be arrested at a time and place that is convenient for him. Since Appellant was arrested pursuant to two valid outstanding traffic warrants, we hold that no illegal arrest occurred and that the evidence was lawfully seized from the vehicle.

The Texas Court of Criminal Appeals does not require police officers to have strictly pure motives in order to validate an inventory search. In fact, that court has held that “[I]t would not be realistic to require that in justifying an inventory search the police must affirm that they had absolutely no hopes or expectations of finding contraband or other incul-patory material.” Vargas v. State, 542 S.W.2d 151, 154-55 (Tex.Crim.App.1976), cert. denied, 429 U.S. 1109, 97 S.Ct. 1144, 51 L.Ed.2d 562 (1977). An inventory search is reasonable because of the facts of the situation, not because of the police officer’s motives. This holding is echoed in a case Appellant cites, United States v. Prescott, 599 F.2d 103, 106 (5th Cir.1979), which holds that the validity of an otherwise reasonable inventory search is not vitiated by a police officer’s suspicion that evidence of contraband may be revealed.

Although Appellant did not argue the point, we must determine whether the search was “otherwise reasonable” in regard to the police officer searching inside a closed, unlocked briefcase found in the passenger compartment of Appellant’s car. We conclude that it was.

The court of criminal appeals recently has addressed this issue. In Gary v. State, 647 S.W.2d 646, 648 (Tex.Crim.App.1983), the court held that a police officer acted pursuant to a valid inventory search when he opened a “zipped and closed bank bag found on the front seat of the Appellant’s car ...” Although the general attitude of the court is apparent, the facts are distinguishable because Gary did not argue that the officer had impure motives as Appellant argues. A few months later, however, that court did consider a claim that an “inventory search was a sham and a pretext for an unconstitutional exploratory search” in Backer v. State, 656 S.W.2d 463 (Tex.Crim.App.1983). In that case, the police officers found marijuana inside the unlocked glove compartment. The court rejected the defendant’s claim and upheld the inventory search, stating that such a search is based on the “caretaking responsibility a police officer has towards a lawfully impounded automobile.” Id. at 464. The concurring opinion suggested that a different result might have been reached had the defendant founded his claim on TEX. CONST, art. 1, § 9, instead of U.S. CONST, amend IV. Id. at 464-65 (Teague, J., concurring). This suggestion was quickly rejected in Ward v. State, 659 S.W.2d 648 (Tex.Crim.App.1983). Ward also involved the search of a closed container, an envelope containing a substance believed to be marijuana. Id. at 644. Ward argued that the inventory search was invalid under both the United States and Texas Constitutions, and that the officer conducted it for no reason. The court concluded that the inventory search was valid.

This trilogy of cases convinces us that the search of the briefcase did not render the inventory search unreasonable under either the Constitution of the United States or Texas. Thus, the evidence was properly seized and admitted. Ground of error three is overruled.

In ground of error four, Appellant argues that his statement should not have been introduced into evidence because it was given involuntarily. He relies on his own testimony that he gave his statement because the police implied that if he did, they would be lenient; i.e., they would not seek capital punishment; or that they impliedly threatened to seek capital punishment if he did not give a statement. At the time the statement was given, the State had not dropped the capital murder count of the indictment. He further relies on a letter he wrote to his mother, after he gave the statement but before he signed it, as evidence of his claim of coercion and to show his state of mind. In that letter, he threatened to commit suicide “before I let these white folk’s [sic] kill me allright [sic].” The detective who took Appellant’s statement, as well as several other detectives who questioned Appellant or who witnessed him sign the statement testified that he was not threatened or abused, that no promises of leniency were made and that he willingly gave, understood and signed the statement.

It is well established that the trial judge is the exclusive arbiter of the credibility of witnesses at a Jackson/Denno hearing and that his finding of voluntariness will not be disturbed on appeal so long as the record supports it. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App.1980); Vigneault v. State, 600 S.W.2d 318, 329 (Tex.Crim.App.1980). The trial judge found that Appellant

was not coerced in any way, not promised anything and not threatened in any way ... [that Appellant] and his testimony are considerably less than credible ... [that Appellant] is not new to the criminal justice system ... that he was in no way intimidated or influenced ... [and] that [his] rights were intelligently and voluntarily waived and [he] did voluntarily make such statements.

We have carefully reviewed all of the testimony at the Jackson/Denno hearing and find that it supports the trial judge’s findings. Thus, we overrule ground of error four.

Ground of error five deals with Appellant’s claim that his statement should have been suppressed because he was denied counsel. The record simply does not support this contention. Ground of error five is overruled.

In ground of error six, Appellant contends that the trial court erred when it refused to withdraw the enhancement count because the proof of the count fatally varied from the pleading. Appellant presented an identical ground of error, which we overruled, in his other appeal. See Shannon, 681 S.W.2d at 142. We rely on our reasoning and conclusions in that opinion to hold that no variance occurred. We overrule ground of error six.

Finally, Appellant argues that the trial court committed fundamental error because the jury charge failed to define the offense of which he was convicted. He points out that he was indicted for one count of murder and two counts of aggravated robbery. However, he incorrectly informs this court that the State never elected which theory it would pursue at trial. As discussed in ground of error one, the State abandoned all charges except one count of aggravated robbery under TEX. PENAL CODE ANN. § 29.02(a)(1) (Vernon 1974). Apparently Appellant believes that fundamental error occurred because the court defined aggravated robbery under TEX.PENAL CODE ANN. § 29.02(a)(2) (Vernon 1974), in the general definition of the charge. However, in the application of the law to the facts, the court correctly restricted the jury’s considerations to the allegations contained in the indictment. This discrepancy does not constitute fundamental error. Grady v. State, 614 S.W.2d 830, 831 (Tex.Crim.App.1981). We find no error and overrule ground of error seven.

The conviction is affirmed.


author: DRAUGHN, Justice.

text:
    Michael Ray DAVID, Appellant, v. STATE of Texas, Appellee.
    No. A14-83-112-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 14, 1984.
    Discretionary Review Granted Jan. 23, 1985.

      Jimmy James, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Michael Ray David was found guilty of sexual abuse of a child and sentenced to ten years’ imprisonment. The sole issue raised on appeal is whether the application of the statute permitting court reporters to destroy their notes after three years deprived appellant of his rights to due process, equal protection and the effective assistance of counsel. We find, however, that appellant waived any alleged defects in the original plea proceedings. The judgment of the trial court is affirmed.

The trial record indicates that appellant was indicted in December, 1978. The trial court held a hearing on the plea to the indictment on June 11, 1979, at which time appellant pled nolo contendere. The trial court deferred the proceedings without an adjudication of guilt and placed appellant on probation for five years. Appellant thereafter violated the terms of his probation twice, and the State filed a Motion to Adjudicate Guilt. After a hearing on that motion in February, 1983, the court found appellant guilty of sexual abuse of a child and sentenced him to ten years’ imprisonment.

In the course of preparing his appeal, appellant’s counsel requested that a transcript be prepared, including a transcription of the proceedings at the June 11,1979 plea to the indictment. He was thereafter informed that the court reporter had destroyed her notes of the hearing pursuant to article 2324 of Texas Civil Statutes, which at that time required only that reporters maintain their records for at least three years. In spite of appellant’s inability to obtain this portion of the record, the remaining record was approved by the trial court.

In two grounds of error, appellant contends that the statute permitting the court reporter to destroy her notes should not be given preference over appellant’s constitutional right to appeal. The thrust of his argument is that there may have been reversible error during the June 11, 1979 hearing in which the trial court decided to defer adjudication of guilt, but that he was necessarily deprived of his right to full appellate review since the notes were destroyed. He argues that this inability to present the transcription of those notes to the appellate court deprived him of due process, equal protection of the law, and effective assistance of counsel.

We are initially confronted with a more fundamental question: whether appellant waived his right to appeal the decision to defer adjudication of guilt. We find he did waive that right. It is well settled that the decision to proceed to adjudication of guilt is not reviewable. Wright v. State, 592 S.W.2d 604 (Tex.Crim.App.1980); Williams v. State, 592 S.W.2d 931 (Tex.Crim.App.1979). See Tex.Crim.Proc.Code Ann. art. 42.12 § 3d (Vernon 1979 & Supp.1984). The Court of Criminal Appeals extended this proposition in McDougal v. State, concluding that the “clear import” of that statute was to preclude appellate review of an order deferring adjudication as well. McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981) (en banc). The court reasoned that a defendant who is dissatisfied with the decision to defer adjudication or with the terms and conditions of the order should move for adjudication of guilt within thirty days as directed by article 42.12 § 3d.

We are here faced with a somewhat different situation than McDougal. McDougal attempted to appeal the deferred adjudication before final adjudication had been reached; here, however, there had been a final determination of guilt some three and one-half years after the original proceedings. The narrow issue then is whether an appellant may complain after a final adjudication of guilt that his rights were or may have been violated in the original hearing deferring adjudication. We conclude that implicit in the decision that a dissatisfied appellant must move for final adjudication within thirty days of the deferred adjudication, is the derivative conclusion that a failure to so do constitutes a waiver of any defects in the proceedings connected therewith. See McDougal at 509; Hardy v. State, 610 S.W.2d 511, 512 (Tex.Crim.App.1981); Pierce v. State, 636 S.W.2d 734 (Tex.App.—Corpus Christi 1982, no pet.). Accordingly, since appellant did not make such a motion within thirty days, he waived the right to complain of any alleged constitutional deprivations in those proceedings.

Independent of our waiver finding which is dispositive of this appeal, we also note that there is considerable evidence in the record before us that appellant was made aware of the consequences of his plea. The record reflects that in the original June 11, 1979 plea to the indictment, appellant entered a plea of nolo contendere and signed a judicial confession. The State recommended, and appellant agreed, to a term of five years’ probation. The court assessed a five year probationary period, but also deferred adjudication of his guilt, which would not become operative unless he violated the terms of probation. After two violations of those probationary terms, (and some three-and-one-half years later), appellant now argues that he may have been denied some constitutional rights in his original plea proceedings. Appellant’s attack seems directed at the possibility that he was not properly admonished concerning his original plea in accordance with article 26.13 of the Code of Criminal Procedure. However, the trial court’s order deferring adjudication of guilt and its docket sheet both reflect that appellant was admonished concerning the consequences of his plea. In addition, the judicial confession signed by appellant and his attorney was also signed by the trial judge. Over the trial judge’s signature appears the following:

This document was executed by the defendant, his attorney, and the attorney representing the State, and then filed with the papers of the case. The defendant then came before me and I approved the above and the defendant entered a plea of guilty. After I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney. It appears that the defendant is mentally competent and the plea is free and voluntary. I find that defendant’s attorney is competent and has effectively represented the defendant in this case. I informed the defendant that I would not exceed the agreed recommendation as to punishment. (Emphasis added).

We find these documents of record cumulatively sufficient to show proper admonishment by the court and appellant’s awareness of the significance thereof notwithstanding the absence of the court reporter’s notes.

In any event, appellant David had an adequate remedial avenue if he was discontented with the original deferred adjudication proceeding: he could have moved for an adjudication of guilt within thirty days and appealed consistent with the mandate and limitations of art. 44.02. Instead, he chose to accept the deferred adjudication and attacked those original proceedings years later, after twice violating the terms of his probation. We find that he waived any alleged defects in the original adjudication proceedings by failing to move for an adjudication of guilt within thirty days. To hold otherwise, would enable others similarly situated to accept the benefits of deferred adjudication up to periods of ten years and then, after violating that probation, launching an appeal based on alleged defects in proceedings at the original hearing. This, we feel, would not serve the purpose of the deferred adjudication law nor the criminal justice system.

Accordingly, the judgment of the trial court is affirmed.


author: ELLIS, Justice.

text:
    Charles Waverly SWEENEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-500-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 14, 1984.
    Edwin Fitzgerald, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, Charles Waverly Sweeney, Jr., appeals from a judgment of conviction of burglary of a habitation with two prior felony convictions proven for enhancement. After trial, the jury found appellant guilty and the court made a finding that appellant had been convicted of two prior felonies. Appellant was sentenced to the Texas Department of Corrections for life. We affirm.

Ground of error one contends that the trial court erred in refusing to allow appellant to impeach the credibility of his own witness. During trial, appellant called Cornelia Cox, a resident of the apartment complex in which the burglary occurred, to rebut the testimony of the state’s sole eyewitness, Laverne Witt, the apartment manager.

Ms. Witt had testified at trial that upon learning that suspicious people were on the premises between 1:00 and 2:00 p.m. that day, she went to a vacant apartment and watched them. She saw appellant and two other men around a ear. She watched for about fifteen minutes, and the men left. About 4:00 p.m. the same day, she again saw the men on the premises. She said she left her office, walked through a courtyard, and saw the men, one of whom was appellant, carrying something out of an apartment under a quilt. Upon realizing he had been discovered, appellant got into the car, drove around a maintenance vehicle blocking the driveway, and fled the scene.

Ms. Witt returned to apartment 171, where she observed a broken window pane and a partially open door. She saw the quilt-covered object that she had seen appellant and another man carrying located beneath a stairwell across from the apartment. The object that was covered by the quilt was a television set.

On direct examination, Ms. Cox testified that she had seen a quilt-covered television set under an exterior stairway at the complex and had wondered how it got there. She talked to a neighbor, Ms. Murray, but before she could contact anyone else about it, Ms. Witt and several others summoned her out of her apartment.

Following Ms. Cox’s testimony, appellant moved to be allowed to impeach her with a prior inconsistent statement recorded by his investigator, because of surprise and injury to his case. The trial court denied the motion, and appellant offered the transcript of a tape recorded conversation as a bill of exception.

The transcript of the statement given to the investigator showed that Ms. Cox had previously said that she had told Ms. Witt about the television set, and that Ms. Witt had been surprised because she did not know the apartmént had been burglarized. Appellant wanted to solicit this testimony on direct examination of Ms. Cox in order to rebut Ms. Witt’s assertion that she was an eyewitness to the burglary.

Before a party is allowed to impeach his own witness, he must establish the proper predicate by showing not only that the testimony has surprised, but also that it is injurious to his case. Puckett v. State, 640 S.W.2d 284 (Tex.Crim.App.1982). To show injury “[i]t is not sufficient that the witness merely fails to testify as expected or remember facts favorable to the calling party. If the calling party has offered no evidence to prove a relevant fact, it cannot be said that the witness, through denial of the existence of such fact, has by such denial stated facts injurious to the calling party’s cause.” [citations omitted]. Goodman v. State, 665 S.W.2d 788 (Tex.Crim.App., 1984).

The witness in our case was for rebuttal only. Appellant offered no evidence that Ms. Witt was not an eyewitness to the burglary. Ms. Cox’s failure to testify to her previous statement did not state facts injurious to appellant’s case.

The trial court did not err in refusing to allow appellant to impeach his own witness. We overrule ground of error one.

In ground of error two, appellant argues that the trial court erred by not allowing him to refresh a witness’ memory with a prior statement. Nothing in the record indicates that appellant ever requested that the trial court let him refresh Ms. Cox’s memory with her prior statement. He merely made repeated attempts to impeach her. Nothing is preserved for review. See Phillips v. State, 511 S.W.2d 22 (Tex.Crim.App.1974). We overrule ground of error two.

Accordingly, we affirm the judgment of the trial court.


author: JUNELL, Justice.

text:
    John Patrick RABB, a/k/a Danny O’Daniels, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-468-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 28, 1984.
    Rehearing Denied July 26, 1984.

      Robert Tarrant, Houston, for appellant.
    Leslie Brock, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This appeal stems from a conviction for aggravated robbery. The original indictment charged appellant with attempted capital murder and aggravated robbery. The state elected to abandon the charge of attempted capital murder and proceed only on the charge of aggravated robbery. Appellant waived a jury trial. He was convicted by the court and sentenced to fifteen years confinement in the Texas Department of Corrections. We affirm.

On December 20, 1982, appellant and a female companion, Pamela Lobo, approached the Houston Hat Company, a counter-type store in Sharpstown Mall, Houston. Appellant selected a hat and belt buckle, which his companion attempted to purchase with an American Express card. The store clerk, Lillie Luna Garcia, requested identification. When Lobo could produce only a temporary Texas driver’s license with a different name than that on the credit card, the clerk became suspicious and called American Express to verify the card. American Express informed her that the card had been reported as stolen and asked to speak with Lobo. During the conversation between American Express and Lobo, the phone went dead. The clerk went next door to call mall security. She reported a possible credit card abuse and asked for assistance. The clerk also made several phone calls, at intervals, to American Express to find out what to do and was put on hold each time while the credit card company attempted to contact the card owner.

Meanwhile, two security guards had been dispatched, Officer Vivian Lee Simmons, who came to the store counter posing as a customer, and Officer D.E. Rieks, who remained outside the store. Both were in uniform. After waiting a few minutes for the credit card approval, Lobo left the store and walked into the mall area. Officer Rieks followed her and saw appellant join her. No approval for the credit card purchase had ever been obtained. Simmons and Rieks approached appellant and Lobo, who denied they were together, but agreed to return to the store to verify the credit card. At the store Officer Rieks asked appellant for identification and was supplied with a driver’s license bearing appellant’s name but a picture not resembling appellant. Rieks asked for appellant’s wallet and was looking through it when appellant pulled a gun, pointed it at Rieks, and threatened to shoot. Rieks took cover and appellant ran away into the crowded mall. The two security guards pursued him as he ran towards an exit. As appellant reached the exit door, he turned to Officer Simmons, who had not yet pulled her gun, threatened to shoot her if she followed, and fired a shot into the ceiling. The security guards continued to chase appellant.

When they were in the parking lot of the mall Officer Simmons pulled her gun and fired four shots towards appellant. Lobo, who was running behind appellant, fell to the ground, unharmed, and Simmons remained with her while Officer Rieks continued in pursuit of appellant. Appellant dodged between cars and turned at least twice and pointed his gun towards the security guard but did not fire. Officer Rieks fired two shots, hitting appellant in the hip with the second shot, bringing the chase to an end.

The indictment charged, in pertinent part, that appellant

did then and there unlawfully while in the course of committing theft of property owned by LILLIE LUNA GARCIA and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place VIVIAN LEE SIMMONS in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a firearm.

Appellant presents three grounds of error. In his first ground appellant asserts the evidence is insufficient to sustain the conviction because there was no evidence that the attempted appropriation was without the effective consent of the owner. The Penal Code includes within its definition of “owner,” a person who has a greater right to possession of the property than the actor. TEX.PENAL CODE ANN. § 1.07(a)(24) (Vernon 1974). The court of criminal appeals has mandated that we look to the employment relationship to determine ownership under Section 1.07(a)(24). A person acting on behalf of a corporation, with managerial authority and responsibility over its goods, is the effective owner within the meaning of that section. Cross v. State, 590 S.W.2d 510, 511 (Tex.Crim.App.1979).

Appellant argues that there is no direct evidence to show lack of consent to the attempted appropriation. Turcola v. State, 643 S.W.2d 164 (Tex.App.—Dallas 1982) presented a similar issue. In Turco-la the defendant fraudulently obtained a credit card and charged over $10,000 worth of merchandise for which she never paid. Turcola argued that lack of effective consent was not established. However, the Dallas court held that Turcola had embarked on a course of conduct beginning with fraudulently obtaining the credit card, from which the jury could infer an intent to take the property by deception. Consent is not effective if it is induced by deception. TEX.PENAL CODE ANN. § 31.01(4)(A) (Vernon 1974).

In the instant case, as in Turcola, appellant attempted to procure merchandise with a credit card not lawfully in his possession. The jury in the case at bar could likewise have inferred an intent to take the merchandise by deception and thus without effective consent.

Under this same ground of error, appellant further contends that the assaultive conduct occurred after the attempted appropriation of the property had ended and therefore does not provide the assaultive conduct necessary to establish “in the course of committing theft” in accordance with TEX.PENAL CODE ANN. § 29.02(a) (Vernon 1974). We disagree. The court of criminal appeals in Lightner v. State, 535 S.W.2d 176, 177 (Tex.Crim.App.1976), and in White v. State, 671 S.W.2d 40 (Tex.Crim.App.1984) has held that under the current statute, the offense of robbery includes any violence while in immediate flight from the scene of a theft. In Lightner the injured party was also a police officer giving chase to the assailant and not the victim of the theft.

White v. State also involved a situation similar to appellant’s. There the defendant sat behind the wheel of a car stationed in front of a grocery store wheré one Carl Sherlock unsuccessfully attempted to grab a woman’s purse. The struggle attracted attention, and Sherlock, pursued by two bystanders, ran. Sherlock yelled at the defendant to “shoot him [one of the bystanders]”; defendant did so. The court of criminal appeals affirmed defendant’s conviction for aggravated robbery, stating that violence accompanying an escape immediately after an attempted theft can constitute robbery. Ground of error one is therefore overruled.

Ground of error two alleges insufficient evidence in that the state failed to prove a theft or attempted theft as distinguished from credit card abuse. The commentary to the statute on credit card abuse, Section 32.31, discusses the overlap between this statute and the theft statutes. It states that the conduct specified in Subsection 32.31(b)(1) is clearly theft under Section 31.03. Searcy and Patterson, Practice Commentary, TEX.PENAL CODE ANN. § 32.31 (Vernon 1974).

Therefore an attempt to obtain merchandise with a stolen credit card, and by inference, with no intention of ever paying the charge, can constitute theft as well as credit card abuse. Turcola v. State, supra at 166. The fact that the evidence relied on to prove aggravated robbery also develops facts constituting another independent crime (credit card abuse) does not prevent prosecution and conviction for the offense on trial. Vick v. State, 397 S.W.2d 229, 230-31 (Tex.Crim.App.1965). We overrule appellant’s second ground of error.

Appellant's third ground asserts the trial court erred in overruling a motion to suppress because the record fails to show sufficient probable cause to make a warrantless arrest. At no time did either Officer Rieks or Officer Simmons testify that appellant was placed under arrest when he was asked to return to the store to verify the credit card. Their testimony does, however, reflect an intent to detain appellant for further investigation. In determining whether police conduct is reasonable, the totality of the circumstances surrounding the incident must be examined. In light of the facts known to the officer at the time, it may be most reasonable to detain a suspicious individual briefly in order to determine his identity or to maintain the status quo while obtaining more information. In such circumstances, probable cause to arrest a suspect need not exist at the inception of the detention. Armstrong v. State, 550 S.W.2d 25, 30 (Tex.Crim.App.1976).

After examining the record we conclude that Officers Simmons and Rieks acted reasonably in detaining appellant for further investigation. We there overrule ground of error number three.

The conviction is affirmed.

      . A person commits an offense if:
      (1) with intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that:
      (A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder ...
      TEX.PENAL CODE ANN. § 32.31(b)(1) (Vernon 1974).


text:
    Edward Wayne BLACKLOCK, Appellant, v. STATE of Texas, Appellee.
    No. C14-82-827-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 5, 1984.
    Discretionary Review Granted March 27, 1985

      Laura Foster, Houston, for appellant.
    J. Sidney Crowley, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   SEARS, Justice.

Appellant was convicted of aggravated robbery, TEX.PENAL CODE ANN. § 29.-03 (Vernon 1974), and was sentenced to fifteen years confinement. We reverse the judgment and remand for new trial.

Because of the nature of the grounds of error urged on appeal, a statement of the facts is unnecessary.

In his first ground of error, Appellant claims the trial court erroneously allowed the district attorney to introduce evidence of an unadjudicated extraneous offense during the punishment phase of the trial. On cross examination, Appellant stated “I have never done anything wrong before” and then amended that statement by saying "I have never committed a felony.” The State then asked Appellant “[Ijsn’t it true that you are charged with a burglary also that occurred on April 4, 1982?” (emphasis added). Appellant’s objection was “we are going to object at this time and move for a mistrial.” The trial court overruled the objection. However, the judge later changed his ruling on the objection, instructed the jury to disregard all testimony about the extraneous offense and stated the fact that Appellant was charged with a crime was no evidence that he had done anything wrong, and that it was improper for the State to ask such a question.

The State argues that the objection to the question was too general to preserve error for review, relying on Williams v. State, 491 S.W.2d 142 (Tex.Crim.App.1973), and Dyche v. State, 478 S.W.2d 944 (Tex.Crim.App.1972). These cases state that an objection which fails to specifically set forth the grounds for the objection will not be reviewed on appeal. In those cases, there was no showing the judge knew or should have known the nature of the objection. In this case, however, Appellant previously made an oral Motion in Limine to keep testimony concerning the extraneous offense from the jury. Since the trial judge granted the Motion in Limine, he was aware of the gist of the objection and the need for Appellant to make a specific objection was obviated.

Further, when the trial judge granted Appellant’s Motion in Limine, he instructed the State, in the event such testimony subsequently became admissible, to discuss it “with the court outside of the presence of the jury” before going into it. The State’s attempt to circumvent the ruling of the court, and to wrongfully present evidence of an extraneous charge of a crime, served no purpose other than to inflame and prejudice the minds of the jurors. Such prosecutorial misconduct requires Reversal. See Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974).

We cannot accept the State’s position that Appellant opened the door to the admission of the extraneous offense. We realize that while specific acts of misconduct generally cannot be used for impeachment purposes, Hoffman v. State, 514 S.W.2d 248, 254 (Tex.Crim.App.1974), evidence of such acts is admissible when the defendant or other witness makes a blanket statement such as never having been in trouble or charged with, or convicted of, an offense. Id. See also Nelson v. State, 503 S.W.2d 543 (Tex.Crim.App.1974); Ochoa v. State, 481 S.W.2d 847 (Tex.Crim.App.1972); Stephens v. State, 417 S.W.2d 286 (Tex.Crim.App.1967). However, Appellant stated that he had never “committed a felony.” Merely being charged with an offense would not rebut that statement. It was error for the court to allow the State to attempt to impeach Appellant in that manner, and we cannot say beyond a reasonable doubt that the judge’s subsequent instruction to disregard cured any harm caused by the jury knowing of other charges pending against Appellant.

Appellant also argues in his first ground of error that the trial court erred when it allowed the State to ask him “[Ijsn’t it true” you have been charged with burglary. We agree because the State is not permitted to phrase a question as an affirmative assertion of fact. Maxwell v. State, 595 S.W.2d 126 (Tex.Crim.App.1980). We sustain ground of error one.

Our disposition of Appellant’s first ground of error makes it unnecessary to address his second ground of error.

The judgment of the trial court is reversed and the cause is remanded for a new trial.


text:
    Joseph F. DUCREE, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-461-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 5, 1984.

      Elton L. Brownshadel, Larry D. Dowell, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   SEARS, Justice.

Appellant was convicted of two counts of theft by deception under TEX.PENAL CODE ANN. § 31.03 (Vernon Supp.1984). He pled “true” to the enhancement paragraph and was sentenced to ten years confinement on each count with the terms to run concurrently. He appeals, arguing that venue was not proved, the evidence was insufficient to support his convictions, evidence of an extraneous offense was erroneously presented to the jury and that the indictment should have been quashed because it failed to specify the manner and means of deception. We find no error and affirm Appellant’s convictions.

In ground of error six, Appellant argues his indictment should have been quashed because it failed to allege the manner and means of deception. We disagree.

The indictment, in pertinent part, reads that Appellant did:

intentionally and knowingly, acquire and otherwise exercise control over property, other than real property, namely money, owned by JEANETTE PRIER," person having a greater right to possession of the property than the Defendant and hereafter styled the Complainant, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant, namely, by deception.

These allegations are repeated in the second count, with George S. Lundy named as the complainant.

We find no error in the indictment. It correctly tracks the language of the theft statute, defines the manner and means of appropriation and states the requisite culpable state. Although unnecessary, the indictment further alleges deception in regard to “effective consent.” Appellant complains because the type or manner of “deception” which the State planned to prove was not alleged. This complaint is without merit.

Although Appellant attempts to draw a distinction, we see no substantive difference between this indictment and the one at issue in Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980). In Phillips, the defendant filed a Motion to Quash because the indictment did not specify which of the seven statutory definitions of sexual abuse it would attempt to prove. That court held that the trial court correctly denied the motion because the information sought was essentially evidentiary and not necessary to give notice or for a plea in bar. Id. at 935. The decision in Ferguson v. State, 622 S.W.2d 846 (Tex.Crim.App.1981), further explained that usually when a term or element in the indictment is statutorily defined, the definition is essentially evidentiary and need not be included in the indictment. Id. at 850. Such is the case here.

The cases upon which Appellant relies are inapposite because they deal with indictments which iail to allege the manner and means of the gravamen of the offense. See e.g., Miller v. State, 647 S.W.2d 266 (Tex.Crim.App.1983) (en banc) (failure to specify manner and means by which defendant damaged and destroyed property in indictment for criminal mischief); Ferguson, 622 S.W.2d at 851 (failure to specify manner and means of delivery in indictment for delivery of heroin). Appropriation is the gravamen of a theft offense, not deception. Thus, the state was under no burden to define it. Ground of error six is overruled.

Appellant challenges the sufficiency of the evidence to prove venue and to support his conviction of theft by deception on Jeanette Prier’s complaint in ground of error one. Identical issues are raised in ground of error three, which deals with the conviction based on George Lundy’s complaint. We have reviewed the evidence and we find it sufficient to support each conviction.

Appellant’s illegal scheme revolved around financing cars for individuals with bad credit ratings. In Lundy’s case this meant obtaining financing for a new car. In Prier’s case this meant obtaining refinancing so she could recover her repossessed car. In each case the complainant filled out a credit or loan application which Appellant was to present to Commercial State Bank. However, Appellant never presented any applications to that or any other bank. He told the complainants he had made the applications but that “problems” were delaying the processing of them. Further, each complainant testified that they would not have given any money to Appellant had they known they would never get a loan, a car, or have their money returned.

The court defined “deception” for the jury under TEX.PENAL CODE ANN. § 31.01(2)(E) (Vernon 1974), which reads:

(2) “Deception” means
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not perform or knew the promise would not be performed.

We find facts sufficient to support the convictions under this section.

Appellant’s first and third grounds of error also allege that the evidence introduced at trial was insufficient to establish venue in the county where the case was tried, Harris County. This argument, however, is made for the first time on appeal. TEX.CODE CRIM.PROC.ANN. art. 44.24(a) (Vernon Supp.1984), instructs the court of appeals to presume that venue was proved in the trial court unless venue was either made an issue in the trial court or the record affirmatively appears to establish that venue was improper. Arnold v. State, 486 S.W.2d 345, 346 (Tex.Crim.App.1972); Valdez v. State, 156 Tex.Crim. 192, 193, 240 S.W.2d 320, 321 (1951); Valdez v. State, 141 Tex.Crim. 52, 53, 147 S.W.2d 246, 247 (1941). Venue can be made an issue by objecting or making a bill of exception, for each method alerts the trial court to the attack on the venue. Since Appellant did not make venue an issue or affirmatively establish that venue was incorrect, the statutory presumption contained in art. 44.24 stands. Grounds of error one and three are overruled.

Grounds of error two and four contain allegations that the trial court erred in overruling Appellant’s Motions for Instructed Verdict. In effect, Appellant argues that even if all of the State’s evidence were taken as true, he should have been acquitted as a matter of law because the evidence could not support a finding of guilty beyond a reasonable doubt. We overrule these grounds of error because of our disposition of Appellant’s insufficiency of evidence grounds of error.

In ground of error five, Appellant argues that the trial court erred in admitting evidence of an extraneous offense. We disagree.

It is well-settled that the State can introduce evidence of an extraneous offense to show, among other things, scheme, motive, design and intent. See Lasker v. State, 573 S.W.2d 539 (Tex.Crim.App.1978). In this case, Sylvia Jones gave testimony concerning the extraneous offense. Her testimony illuminated numerous similarities between her and the complainants’ dealings with and treatment by Appellant. We hold that this evidence indeed helped establish Appellant’s motive, intent, scheme and design, and was correctly admitted. Ground of error five is overruled.

The convictions are affirmed.


author: ROBERTSON, Justice.

text:
    MARITIME OVERSEAS CORPORATION, Appellant, v. Louis H. THOMAS, Appellee.
    No. B14-83-830-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 12, 1984.

      Thomas B. Greene, III, Crain, Catón, James & Womble, Houston, for appellant.
    Allen H. Kline, Jr., Houston, for appel-lee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

This is an appeal from an award for maintenance. The issue before us is the sufficiency of the evidence to sustain the jury finding of the date upon which appel-lee reached maximum medical care. We modify and affirm.

Maintenance and cure are centuries old remedies under the general maritime law, due the seaman without regard to the negligence of the employer or the seaworthiness of the ship. A seaman’s right thereto is implicit in the contractual relationship between him and his employer, and is designed to ensure the recovery of these individuals upon injury or sickness sustained in the service of the ship. Pelotto v. L & N Towing Company, 604 F.2d 396 (5th Cir.1979). Maintenance in a per diem living allowance, determined by the contract between the union and the ship owner, paid so long as the seaman is outside the hospital and has not reached the point of “maximum cure.” Cure involves the payment of therapeutic, medical and hospital expenses not otherwise furnished to the seaman until the point of “maximum cure.” Maximum cure is achieved when it appears probable that further treatment will result in no betterment of the seaman’s condition. Pelotto, supra.

Appellee, a crew messman aboard the S/T OVERSEAS ANCHORAGE, was injured on February 25,1977. Subsequently, he filed a suit for damages based upon negligence and unseaworthiness; additionally he sought maintenance and cure. The jury found no negligence and found the ship seaworthy. Upon the disputed issue of when appellee reached maximum medical cure, the jury determined that date to be June 24, 1978.

In his sole ground of error appellant challenges, upon both legal and factual grounds, the sufficiency of the evidence to sustain this finding. We first address the legal sufficiency of the evidence, applying the usual test to determine if there is any evidence to support the finding.

The tanker, on which appellee was employed, was docked at New Haven, Connecticut. While leaving the ship to do some shopping in town, appellee fell and injured his hip or lower back. The next morning he complained of pain and as a result was relieved from work duties. When the ship returned to Houston on March 4, 1977 he sought and received therapy treatment on a regular basis from the Public Health Service Hospital until July 13, 1977 when he asked to be made “fit for duty” and was given a prospective “fit for duty” certificate in two weeks. While being treated at the Public Health Hospital he was also being treated by Dr. McGehee, a private physician, to whom he had been referred by his attorney. He first saw Dr. McGehee on May 10, 1977 and received numerous physical therapy treatments until July 18, 1977 when he was given a medical discharge and permission to return to work with no restrictions. He did not receive any medical treatment between July 18, 1977 and December 8, 1978 when he returned to Dr. McGehee complaining of pain and received eighteen additional therapy treatments. He again returned to Dr. McGehee on December 27,1978 for an evaluation at the request of his attorney. He was finally discharged by Dr. McGehee again on May 4, 1979.

As far as we can discern from this record, appellee had never returned to work as a seaman at any time prior to trial. We do not know whether he sought such employment. He did testify that the shipping industry was on the decline, leaving the impression it was difficult to sign on. There was, however, evidence to the contrary. Be that as it may, appellee worked as a taxi driver, a job he previously had, and additionally operated a lounge for sometime. His testimony was that he suffered pain at times, requiring him to take rest periods.

Appellee received no medical treatment during the period from July 18, 1977 and December 8,1978. While Dr. McGehee appeared to testify that appellee continued to take muscle relaxer medication during that period of time, such testimony is without any probative value because he never saw appellee during that time. Appellee did not testify concerning the ingestion of any medication nor did he testify as to any physical therapy treatments taken at home or elsewhere after July 18, 1977. While Dr. McGehee found a 75% narrowing of the intervertebral space at the lumbosacral level, he testified such condition preexisted the injury and was possibly congenital. The purpose of all his treatments to appel-lee was to relieve pain. When he released appellee on July 18, 1977 appellee stated to him “that he was having no pain in his back at that time.” While Dr. McGehee testified at trial that it was his opinion that appellee did not reach maximum medical cure until some sixteen months following the accident, we find there was not a factual basis for such opinion. This opinion is therefore without probative value.

A few basic principles of federal maritime law need be recited. Maintenance and cure “remedies do not operate as substitutes for damages; they are not general compensation, but rather are directed toward the specific objective of providing for the subsistence and medical expenses of a seaman until he has reached the point of maximum possible cure.” Oswalt v. Williamson Towing Company, Inc., 488 F.2d 51, 54 (5th Cir.1974). A seaman is not entitled to maintenance and cure if he is not sufficiently ill or disabled to make advisable some kind of medical attention. Pyles v. American Trading & Production Corp., 872 F.2d 611 (5th Cir.1967). Where it appears that future medical treatment will merely relieve pain and suffering but not otherwise improve the seaman’s physical condition, it is proper to declare that the point of maximum cure has been achieved. Pelotto, supra. And because an award of maintenance and cure is intended to compensate the injured seaman for monies necessarily spent for ordinary support and medical expenses during the course of treatment, it is essential for such recovery that the seaman actually incur these expenses. Brown v. Aggie & Miller, Inc., 485 F.2d 1293, 1296 (5th Cir.1973). And in Brown, the court made it clear that when the seaman (1) refuses treatment, (2) is cared for through independent largesse or (3) avails himself of a public facility, the law clearly requires that no maintenance and cure be given for the days voluntarily spent without care or under public or private charity. If this is true, then it logically follows that the seaman may not receive maintenance if he is not receiving some type of medical care. Payments for maintenance and cure are to be limited to the period the seaman was actually undergoing “cure” — that is while he is undergoing medical treatment tending to improve his physical condition. Ryan v. United States Lines Company, 303 F.2d 430, 432 (2nd Cir.1962).

We think that applying these established principles of law to the evidence before us compels the conclusion that maximum medical cure was attained on July 18, 1977, because there is no evidence that appellee received medical treatment after this date which tended to improve his condition. There is no evidence to support the jury verdict that such date was June 24, 1978, and we so hold. The evidence shows that appellee was paid maintenance through June 22, 1977. Appellant agrees that he is entitled to maintenance for an additional 26 days or through July 18,1977, and we agree. There is no reason for the judgment to be reversed; we may modify it.

The judgment is modified by changing the award for maintenance from $2,920 to the amount of $208, that being the stipulated rate of $8.00 per day for 26 days. On the issue of costs of the appeal, the effect of our opinion is the same as a reversal. We therefore tax the appellate costs against appellee. As modified, the judgment is affirmed.


text:
    Ronald Keith MITCHELL, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-188-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 19, 1984.
    Rehearing Denied Sept. 13, 1984.

      James Gregory Glass, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Appellant was convicted of attempted capital murder in the course of committing aggravated rape under TEX.PENAL CODE ANN. § 19.03(a)(2) (Vernon 1974), and was sentenced to fifty years confinement. We affirm.

The complainant, Williamette Taylor, testified that on May 23, 1982, Appellant,and another man approached her in a car driven by Appellant. He offered her a ride and she accepted. Appellant drove her to a party, and after a short while she and Appellant left. Appellant then took her to his brother’s apartment and to other friends’ apartments. She asked to be taken home. Appellant ignored her request, drove her to a deserted alley and began kissing her. She tried to stop him and again pleaded to be taken home. He told her to shut up and that she knew what would happen when she accepted the ride.

Appellant then ordered her to disrobe. She refused twice. At that point he said “I’m not going to ask you again, because if you don’t, I’m going to reach for the glove compartment.” She testified that she believed that he had a weapon. Taylor tried to escape but Appellant grabbed her arm, ripped off her clothes and forced her into the back seat. Appellant put his hands around her throat, choking her so that she could not breathe, while he raped her. He told her that she had “better make it good” because the next thing he would do would bé to put her on the hood and engage in fellatio. After he raped her in the car, he pulled her out of the car, threw her onto the hood, laid on his back and ordered her to get on top of him. She obeyed because Appellant told her that he would hate to “mess up” her pretty face.

While on the, hood of the vehicle, Taylor hit Appellant in the face and attempted to escape. He caught her, grabbed her by the hair and the arm, dragged her back to the car and told her he was going to kill her. He grabbed her hair and threw her face on the hood twice. Then he turned her over and hit her in the stomach, spread her legs apart as if he were trying to break them, hit her in the face with his fist, rolled her over on to her stomach again and hit her with both fists in the back. He then got back into the car, drove the vehicle over her, turned around, drove over her a second time and then sped away. Taylor was left naked and severely injured. She testified that she could see the car approaching her before it ran over her, but could not move out of its way because of the severe beating she had sustained.

After laying on the ground for a few minutes, she climbed a fence and walked to the highway. She stated that she walked along the highway for approximately thirty minutes before a man stopped to help her. He told her to stay where she was and he would return with help. He returned with another man in a van, wrapped her in a quilt and took her to the nearest fire station. An emergency medical technician examined her and transferred her to Del Oro Hospital, where she stayed for three weeks. Her admission statement at Del Oro recorded that she had been raped and a rape kit was used to examine her.

An officer on the Sex Crimes Unit of the Houston Police Department’s Homicide Division was assigned to the case one or two days after the crime occurred. He contacted complainant May 31, however she was unable to talk well on that date because her jaw had been fractured and surgically wired shut. She did manage to describe Appellant, the car he drove, where she thought he lived and the general location where the crime occurred. Although she did not tell the officer Appellant’s name, she had told her brother two days after the event that a man named “Ron” had attacked her.

She spoke with the officer again on June 6 and described her ordeal in more detail and soon led the officer to many of the locations she had travelled with Appellant. Appellant, accompanied by his lawyer, surrendered to the police on June 16.

In grounds of error one through three, Appellant argues there was either no evidence or insufficient evidence to support his conviction. Appellant specifically argues that all of the aggravating elements occurred after the rape and, consequently, the State did not prove that Appellant was “in the course of committing” or attempting to commit aggravated rape when he attempted to kill Taylor.

A similar fact pattern and argument is found in Wooldridge v. State, 653 S.W.2d 811 (Tex.Crim.App.1983) (en banc). Wooldridge was convicted of capital murder in the course of committing aggravated rape. In that case, as in ours, the murder/attempted murder occurred after the rape was completed. That court held that “conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense” occurs “in the course of committing” an offense listed in TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1974). Id. at 816. The court concluded that such conduct was exactly what the legislature intended to proscribe by enacting § 19.03(a)(2). Id. We agree. The fact that Appellant did not actually attempt to kill Taylor until after he raped her is of no consequence. We overrule Appellant’s first three grounds of error.

In ground of error four, Appellant complains the trial judge erred by refusing his requested instruction on the “time lapse” between the incident and the outcry. Appellant claims that TEX.CODE CRIM. PROC.ANN. art. 38.07 (Vernon 1979), mandates such an instruction. Article 38.07 states

A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim.

We hold Appellant was not entitled to the instruction because there was no unexplained delay in her outcry. One of the men who rescued her testified that “all she could do was mumble” and that he could not understand her. In addition, the emergency medical technician testified that she was slipping into shock as a result of blood loss. She was unable to make immediate outcry because of the severe beating she sustained.

It is unclear when Taylor first made an outcry, although her hospital admission papers note that she had been raped and she was examined with the standard rape kit. Further, it is undisputed that as soon as she was able to talk she did announce that she had been raped. Thus, a time lapse, as contemplated by art. 38.07, i.e., unexplained delay, did not occur. Further, Appellant was convicted under Chapter 19 of the Penal Code. Article 38.07 applies only to convictions under Chapter 21. Ground of error four is overruled.

Grounds of error five through ten concern alleged errors in the abstract definitions in the charge. In ground of error eleven, Appellant argues that he should have been tried under the special aggravated rape statute instead of under the general criminal attempt statute. Each of these alleged errors is presented for the first time on appeal and none of them involves fundamental error. We overrule grounds of error five through eleven. See Lewis v. State, 656 S.W.2d 472 (Tex.Crim.App.1983) (en banc); Livingston v. State, 524 S.W.2d 655, 657 (Tex.Crim.App.1976), cert. denied, 431 U.S. 933 (1977).

We feel it necessary to mention one argument raised in ground of error seven. One of the definition paragraphs in the charge reads:

A person commits aggravated rape if he commits rape, as defined above, and he;
(1) causes serious bodily injury or attempts to cause serious bodily injury

Appellant argues that the definition of aggravated rape was erroneous and that because the application paragraph referred back to the definition, the application paragraph was also in error. In other words, Appellant argues the charge authorized a conviction for acts which do not constitute aggravated rape, i.e., an “attempt to cause serious bodily injury.”

We share Appellant’s concern over the erroneous definition and its possible consequence but do recognize that fundamental error attaches to error in the application paragraph while it does not so attach to error in the definition paragraph. However, the average juror knows no distinction between the “application” paragraph and the “definition” paragraph. The entire charge is the law by which the juror must be guided. The distinction between the paragraphs seems to have been applied by courts without considering the equal impact each paragraph of the charge has on the juror. If the application paragraph refers to a definition, and cannot be understood or applied without applying the definition, then the definition should be said to become part of the application paragraph.

Under the facts of this case, though, the jury could not have found an “attempt” to cause serious bodily injury; Appellant’s acts went far beyond a mere “attempt” to injure. Since the serious bodily injury suffered by complainant at the hands of Appellant was proven beyond a reasonable doubt, see Dixon v. State, 639 S.W.2d 9, 12 (Tex.App.—Dallas 1982, no pet.), the error, if any, was harmless.

Each ground of error is overruled and the conviction is affirmed.


text:
    Stanley A. CHIMELEWSKI, Appellant, v. STATE of Texas, Appellee.
    No. B14-83-065-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 26, 1984.

      Robert C. Hunt, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from a conviction for gambling promotion. After a not guilty plea and a bench trial, the court found appellant guilty. Then the court granted appellant’s Motion to Reduce Third Degree Felony to Misdemeanor Conviction and assessed punishment at three days confinement in the Harris County Jail and a $1000 fine. We affirm.

After obtaining a search warrant, Officer W.C. Felder and several other officers entered appellant’s apartment. Scattered about were numerous betting slips, “line” sheets, and other gambling related materials. Two males, appellant and a man named Timothy Reagan, were present. The officers arrested appellant.

During the search of the apartment, one of the officers, D.W. Smith, placed a recording device on one of the telephones there. Smith soon received and recorded a call from a person who asked for Stan, discovered Stan was out, identified himself as “Casey,” and then proceeded to ask Officer Smith numerous questions. Those questions included the following: (1) “Are you — do you have the deal there in front of you?” (2) “What do you got there — starting with the National League?” (3) “They’re (San Francisco and the Mets) already gone?” (4) “The Padres are gone?” and (5) “Do you know who on the other side Forseh is?”

Appellant presents four grounds of error. In his first ground he alleges error in the trial court’s overruling his motion to suppress evidence, betting paraphernalia, obtained as a result of the search warrant.

Appellant contends that the underlying affidavit in support of that search warrant was insufficient to establish probable cause. He argues that the recent case of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) changed the constitutional standards for search warrants such that his Motion to Suppress Evidence made prior to then should have been granted. We recognize that Illinois v. Gates changed the standard of review from the two-pronged test outlined in 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). Illinois v. Gates relaxes the requirements needed before a search warrant can be issued. Illinois v. Gates substituted the “totality of circumstances” test, acknowledging “[PJrobable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, supra, 103 S.Ct. at 2328. The Texas Court of Criminal Appeals confirmed this state’s reliance upon the new “totality of circumstances” test in Hennessy v. State, 660 S.W.2d 87 (Tex.Crim.App.1983). In examining all of the circumstances underlying the issuance of the search warrant, we conclude that there was probable cause for its issuance.

The affiant had information from two reliable confidential informants that appellant was engaged in placing bets on baseball and basketball games. The affi-ant performed surveillance at the apartment in question and recognized appellant from his driver’s license picture.

We overrule appellant’s first ground of error.

By ground of error number two appellant contends there was a fatal variance between the allegations contained in the indictment and the evidence presented during the trial. The indictment, in pertinent part, charged that appellant did

intentionally and knowingly receive and record a bet and offer to bet from a person who’s [sic] betting number is 500 and who’s [sic] true name and identity is unknown to the Grand Jury on a sporting event, namely, a baseball game played on May 6, 1982 between the Los Angeles Dodgers and the Montreal Expos. [emphasis added].

Appellant argues that the Grand Jury's failure to make any effort to ascertain the name of Number 500 proved that the Grand Jury failed to exercise reasonable diligence in such effort, requiring a reversal of the conviction. Appellant relies on Payne v. State, 487 S.W.2d 71 (Tex.Crim.App.1972). There the conviction was reversed because the evidence showed the Grand Jury had not exercised reasonable diligence in attempting to determine the name of the person from whom the defendant had received stolen property. In Payne the evidence showed that the only witness who appeared before the Grand Jury knew the name of the person from whom the defendant had received the stolen property. The court stated that “the question upon which this appeal must turn is whether the Grand Jury, by the exercise of reasonable diligence, could have ascertained the supplier’s name.” The Grand Jury’s failure to ask the one witness who appeared before it to give the name of the supplier was held to prove failure to exercise reasonable diligence to ascertain that name. Payne is distinguishable from the case at bar. Police Officer Smith testified at trial that he participated in the investigation, he did not know the name of No. 500, appellant’s apartment was searched without success for documentation that would furnish the name of No. 500, and the only two people in a position to know the name of No. 500 were the appellant and the person using the code number. In our opinion this evidence shows that the Grand Jury could not have ascertained the name of No. 500 even if it had asked for it or otherwise affirmatively sought to obtain it. On these facts we hold that ground of error two has no merit and it is overruled.

In ground of error three appellant complains that the admission of appellee’s Exhibit 16, a tape recording of two persons telephoning appellant’s apartment to obtain betting information, constituted reversible error. Appellant notes the predicate for the admission of a tape recording as set forth in Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977).

1. A showing that the recording device was capable of taking testimony;
2. A showing that the operator of the device was competent;
3. Establishment of the authenticity and correctness of the recording;
4. A showing that changes, additions, or deletions have not been made;
5. A showing of the manner of the preservation of the recording;
6. Identification of the speakers; and
7. A showing that the testimony elicited was voluntarily made without any kind of inducement.

Appellant would have us hold that admission of the tape recording did not comport with that predicate as there supposedly had been additions to the tape.

The tape recording was of a telephone conversation between Officer Smith and a person named Casey. Smith participated in the execution of the search warrant in appellant’s apartment. He was also the one who attached the recording device to one of the phones. During trial Smith testified that he had made no additions, deletions, or changes in the tape. When the tape was played, it included both the conversation between Smith and Casey and a second call between Smith and another caller asking for Stan.

Appellant argues that the presence of the second call on the tape destroys its reliability and accuracy. He equates its presence with an “addition.” However, a review of the record before us reveals that Officer Smith never testified that the tape contained only one conversation. The trial court limited its consideration to the first conversation. As appellant admits, admission of tape recordings is discretionary with the trial court. See Edwards, supra at 733; Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n.r.e.); Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174 (Tex.Crim.App.1951). We find no abuse of that discretion. Appellant’s third ground of error is overruled.

In ground of error number four appellant urges this court to hold that the evidence was insufficient to support the conviction. We have reviewed the evidence and conclude that it is sufficient to support appellant’s conviction. We refer to these items in particular:

1 — lease records admitted into evidence which prove that appellant was the sole tenant of the apartment in question;
2 — registration of the telephone and electrical service at the apartment to appellant;
3 — identification of appellant as lessee by the apartment manager;
4 — repeated observations of appellant entering and leaving said apartment;
5 — abundance of betting paraphernalia in appellant’s apartment;
6 — presence of only two persons, one of whom was appellant, in apartment when search warrant was executed;
7 — appellant’s instruction to police officers who arrested him that other person in apartment at time appellant was arrested was not involved in the operation;
8 — tape recording of “Casey” calling and asking for Stan, and asking for information one who was considering placing a bet would ask; and
9 — Officer Smith’s testimony that a written instrument found in the apartment was a betting slip showing a bet placed by a person identified as No. 500, said bet being on the May 6 baseball game between the Los Angeles Dodgers and the Montreal Expos.

It is well established in this state that a conviction on circumstantial evidence will be sustained if the circumstances exclude every other reasonable hypothesis except that of guilt. See Sullivan v. State, 564 S.W.2d 698 (Tex.Crim.App.1977). We hold that the evidence introduced at trial establishes appellant as the sole resident of the apartment, demonstrated that a gambling operation was being conducted from that apartment, and that there is no reasonable hypothesis other than that appellant was indeed the one conducting that gambling operation. He was the only resident of the apartment. He and Reagan were the only persons present in the apartment when the police officers entered. When an officer began reading Reagan his Miranda warnings, appellant interrupted to say, “The man doesn’t do it. He doesn’t know what’s going on there.” All of the foregoing evidence eliminated any hypothesis that Reagan could have been the one conducting the gambling operation.

We follow the court of criminal appeals’ rationale in Herndon v. State, 543 S.W.2d 109,121 (Tex.Crim.App.1976), where it stated, “If the evidence in the instant case is viewed in its entirety the reader is left with the inescapable conclusion that appellant was in the business of bookmaking....”

We overrule the fourth ground of error.

The conviction is affirmed.

      . The record originally furnished to the court on this appeal contains a xerox copy of State’s Exhibit 12A, the document Officer Smith identified in his testimony. That xerox copy did not show the better’s code number or the date. This court ordered that all original exhibits be furnished to the court. That was done and we have examined the original State’s Exhibit 12A. It is complete and contains the date and better’s code number as well as the other information about which Officer Smith testified. We have ordered the original exhibits returned to the District Clerk of Harris County.


text:
    Dwayne HARDY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-318-CR, A14-83-319-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 26, 1984.

      Jim Stafford, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Appellant was convicted of two offenses of aggravated rape and was assessed punishment of fifty years confinement for each offense. He appeals each conviction alleging that the jury charges were fundamentally defective, that the evidence was insufficient to convict him of one of the offenses and that the trial court erred in failing to include the lesser included charge of rape in connection with one offense. Although Appellant’s guilt in both cases is clear and convincing, we must reverse Appellant’s convictions and remand for new trial because of fundamental error in the court’s charges.

Grounds of error one and two concern Appellant’s allegation that the charge in cause number 370,212 was fundamentally defective because it authorized conviction upon a theory not alleged in the indictment. We are constrained to agree.

Appellant was indicted under TEX. PENAL CODE ANN. art. 21.03(a)(2) (repealed 1983), which stated that a defendant committed aggravated rape if he “by acts, words, or deeds places the victim in fear of death, [or] serious bodily injury ...” However, the charge given to the jury sanctioned conviction under TEX.PENAL CODE ANN. art. 21.03(a)(3) (repealed 1983), which stated that a defendant committed aggravated rape if he “by acts, words, or deeds occurring in the presence of the victim threatens to cause death, [or] serious bodily injury_” It is well-established that this constitutes fundamental error by authorizing the jury to convict Appellant upon a finding of facts which were not alleged in the indictment. See Morris v. State, 609 S.W.2d 782, 784 (Tex.Crim.App.1980); Lee v. State, 577 S.W.2d 736, 736 (Tex.Crim.App.1979).

The State argues that “the charge neither changed nor lessened the proof required by the allegations in the indictment” and, thus, fundamental error was avoided, relying on Cumbie v. State, 578 S.W.2d 732 (Tex.Crim.App.1979). We cannot accept this contention. Subdivision 3 of art. 21.-03(a) requires an objective evaluation of a defendant’s acts, words or deeds, while subdivision 2 focuses on the victim’s state of mind. The State itself illustrates the difference in the type and degree of proof required when it acknowledges that not all threats succeed in placing the victim in fear of serious bodily injury or death. The State’s reliance on Cumbie and Woods v. State, 653 S.W.2d 1 (Tex.Crim.App.1983) (on State’s Motion for Rehearing), is misplaced. Grounds of error one and two are sustained.

In grounds of error three through five, Appellant basically argues that the charge given under both indictments, cause numbers 370,212 and 369,753, are fundamentally defective because they authorized convictions for conduct not constituting a crime, citing Cumbie, 578 S.W.2d at 734. We do not address the argument with respect to cause number 370,212 because of our disposition of grounds of error one and two. We agree with Appellant’s contention with respect to cause number 369,753.

As previously stated, art. 21.03(a)(3) required a finding that defendant threatened to cause death or serious bodily injury. The abstract of the charge in that cause number also referred to the threat of serious bodily injury. However, the application paragraph authorized conviction if the jury found Appellant “intentionally or knowingly threatened] to cause bodily injury or death.” The requirement that threat be of serious bodily injury was omitted. Thus, the charge was fundamentally defective because it authorized a conviction based on conduct not a crime under art. 21.03(a)(3). See Cumbie, 578 S.W.2d at 734-35.

The State argues that we should read the charge as a whole because, when read in its entirety, it does not sanction a finding that Appellant is guilty of aggravated rape unless the jury found that he threatened death or serious bodily injury. The State relies on Jackson v. State, 591 S.W.2d 820 (Tex.Crim.App.1979), which does make that statement. However, it was made in a different context than that which the State suggests.

In Jackson, the charge contained the same error as the charge in this case. However, in that case the court also instructed the jury to acquit the defendant if it did not find that he threatened death or serious bodily injury. Id. at 823-24. The charge before this court does not contain a similar saving phrase; it merely instructs the jury to acquit Appellant if it had reasonable doubt as to his guilt (of threatening death or bodily injury). Grounds of error three through five are sustained.

In grounds of error six and seven, Appellant contends that the evidence supporting the indictment in cause number 370,212 was insufficient to show that he had either threatened the victim with serious bodily injury or death or had placed her in fear of same. Appellant argues that at no time did he

either by action, word, or deed, threaten her with the imminent infliction of serious bodily injury or death. He never exhibited a weapon. He never threatened to kill her. He never threatened or used force more than that required to secure her submission to sexual intercourse.

He relies on Rucker v. State, 599 S.W.2d 581 (Tex.Crim.App.1979), to support his argument that he did not threaten serious bodily injury or death because his words, “don’t say anything, Don’t scream, I don’t want to hurt you,” did not constitute an express verbal threat. Further, he did not have a weapon and the victim suffered no serious bodily injury. Rucker does indeed so hold. However, Appellant was tried under art. 21.03 after it was amended. The purpose of the amendment was to plug the gap created by the court of criminal appeals decision in Rucker and to allow such acts as the ones described above to support a conviction of aggravated rape. HOUSE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS, TEX.H.B. 364, 67th Leg. (1981).

A review of the testimony reveals that Appellant held a pillow over his victim’s face while he raped her. Further, she testified she had trouble breathing and believed that he would smother her if she continued to resist. This evidence is entirely sufficient to authorize a conviction under either subdivision 2 or subdivision 3 of art. 21.03(a). Grounds of error six and seven are overruled.

In Appellant’s final ground of error, he alleges that the trial court erred in refusing to submit a charge on the lesser included offense of rape. We find no error because no evidence was adduced at trial which indicated that if Appellant was guilty, he was guilty only of rape. Such a showing is necessary to entitle Appellant to the requested charge. See Parr v. State, 658 S.W.2d 620, 622 (Tex.Crim.App.1988) (en banc). Ground of error eight is overruled.

Although previously noted, we would again like to point out the extreme reluctance with which we reverse Appellant’s convictions. The evidence in both cases is sufficient to convict Appellant under either art. 21.03(a)(2) or (3). However, we are forced to reverse and remand for new trial because of error in the court’s charges to the jury. The number of cases reversed and remanded on points similar to the ones in the instant case could be reduced if more care was taken in the preparation of the charge.

Both of Appellant’s convictions are reversed and remanded for new trial.


author: CANNON, Justice.

text:
    Larry Lee HENDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-580-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 26, 1984.
    Gregg Glass, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

This is an appeal from an order revoking probation. On January 19, 1979, appellant was convicted of auto theft. The court assessed punishment at seven years confinement. Sentence was suspended and appellant was placed on probation.

On May 20,1983, the State filed a motion to revoke appellant’s probation. The State’s motion alleged that appellant committed the offense of delivery of a controlled substance. In one paragraph, the motion alleged delivery “by actual transfer.” The second paragraph alleged delivery “by constructive transfer.” After a hearing, the trial court revoked appellant’s probation and sentenced him to seven years confinement. Appellant raises two grounds of error challenging the validity of the underlying conviction and the revocation of probation. We affirm.

In his first ground of error, appellant contends that the conviction should be reversed because there was no waiver of jury trial signed by him and filed with the court when he entered his plea of guilty. Appellant’s complaint is factually incorrect. The record contains a Waiver of Trial by Jury signed by appellant on January 19, 1979, the same day he entered his guilty plea. (The State’s motion to supplement the record with the waiver in question was granted on February 2, 1984). Appellant’s first ground of error is overruled.

In his second ground of error, appellant argues that the trial court abused its discretion in revoking appellant’s probation for delivery of a controlled substance “by actual transfer and by making an offer to sell.” Appellant argues that while his conduct might be construed as a constructive delivery of a controlled substance, the court failed to make such a finding and the evidence supports neither an actual transfer nor an offer to sell.

It is true that the trial judge made the oral finding that appellant “did on May the 16th, 1983, in Harris County, Texas, deliver by actual transfer to K.G. Blair a controlled substance and that he did deliver by offering to sell to K.G. Blair a controlled substance.” (Emphasis added). However, a written order revoking probation controls over an oral pronouncement of the trial judge. Clapper v. State, 562 S.W.2d 250, 251 (Tex.Crim.App.1978). Here, the trial court’s written order states that appellant “committed the offense of delivery of a controlled substance on May 16, 1983 in Harris County, Texas.” (Emphasis added).

Under the Controlled Substances Act “delivery” includes the “constructive transfer” of a controlled substance. Tex. Rev.Civ.Stat.Ann. art. 4476-15, § 1.02(8) (Vernon 1976). A “constructive transfer” is the transfer of a controlled substance, either belonging to an individual or under his control, by some other person or agency at the instance or direction of the individual accused of such constructive transfer. Pulgarin v. State, 635 S.W.2d 195 (Tex.App.—Houston [1st Dist.] 1982, no writ). See Rasmussen v. State, 608 S.W.2d 205, 209 (Tex.Crim.App.1980).

Houston police officer K.G. Blair testified that when he asked appellant for half of a gram of cocaine, appellant responded: “you can get the half a gram.” Appellant then directed another man named “Ben” to give the cocaine to Officer Blair. Officer Blair gave $50.00 to “Ben” in exchange for the cocaine. These facts demonstrate appellant’s control over the cocaine in that he exercised authority over a third party and directed that party to conduct the transfer.

The evidence supports the State’s allegation of “constructive transfer” and the written order of the trial court that appellant was guilty of “delivery of a controlled substance.” Appellant violated the condition of his probation that he “commit no offense against the laws of this or any other state or of the United States.” We find that the trial court did not abuse its discretion in revoking appellant’s probation.

The judgment of the trial court is affirmed.