text:
    Geary Wallace NORMAND, Appellant, v. STATE of Texas, Appellee.
    No. A14-84-393CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.
    Rehearing Denied Feb. 14, 1985.

      James W. Patterson, Houston, for appellant.
    J. Harvey Hudson, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Geary Wallace Normand appeals a jury-conviction of aggravated robbery. The punishment, enhanced by one prior felony conviction, was twenty years in the Texas Department of Corrections. Appellant alleges eight grounds of error. We affirm.

On September 6, 1983, two men robbed a convenience store at gunpoint. The men took several packs of Salem cigarettes, a magazine entitled “Mustang,” and cash in the form of bills and quarters. Shortly after the cashier reported the crime, the Houston Police dispatcher notified Officer M.R. Fogle that a robbery had just taken place in the neighborhood. Officer Fogle then noticed a car traveling towards him at a high rate of speed. As the officer turned to pursue the vehicle, the driver of the car pulled into a parking lot and opened the hood to look at the engine. As Officer Fogle investigated the situation, he observed appellant, seated on the passenger side of the front seat, throw something out the window before raising his hands above his head. The officer found a brown bag with twenty-two dollars in quarters on the ground near the car. He observed a “Mustang” magazine and several packs of Salem cigarettes inside the car, and he retrieved a pistol from the driver.

Appellant first of all alleges trial court error in permitting the State to comment on appellant’s failure to testify. During the State’s case-in-chief, appellant’s counsel cross-examined the convenience store cashier as to the identification of the robbers. Following this testimony, appellant’s counsel asked his client to approach the jury so they could see the color of his eyes and his tattoos. At that point, the prosecutor said, “May I ask if this is in the form of testimony on the part of the defendant?” No one answered this question, and the trial proceeded as though the question had not been asked.

We do not construe the State’s question to be a comment on appellant’s failure to testify. However, even if the question could be construed as such, the error was harmless. After considering the very strong evidence presented against the appellant, we believe beyond all reasonable probability that the question itself did not contribute to the conviction. See Ford v. State, 477 S.W.2d 27, 29 (Tex.Crim.App. 1972); Ramos v. State, 419 S.W.2d 359, 367 (Tex.Crim.App.1967); Davis v. State, 634 S.W.2d 366, 367 (Tex.App.— Waco 1982, pet. ref’d). We overrule appellant’s first ground of error.

Appellant next complains that the trial judge improperly commented on the weight of the evidence. During the State’s direct examination of the convenience store cashier, appellant’s counsel requested an interpreter, arguing that the witness demonstrated difficulty with the English language. The judge denied the request and during a bench conference also stated, “I think the witness is understanding all the questions, and his answers are intelligent.”

To constitute reversible error as a comment on the weight of the evidence in violation of TEX.CODE CRIM.PROC.ANN. art. 38.05 (Vernon 1979), a judge’s statement to the jury must be reasonably calculated to prejudice the defendant’s rights. Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim.App.1983) (en banc); Marks v. State, 617 S.W.2d 250, 252 (Tex.Crim.App.1981). We do not find that to be the case in this instance. Furthermore, appellant’s counsel failed to object to the statement, so that no error was preserved for review. Sharpe, 648 S.W.2d at 706; Downey v. State, 505 S.W.2d 907, 909 (Tex.Crim.App.1974). We overrule appellant’s second ground of error.

The third ground of error contends that appellant received ineffective assistance of counsel because his trial attorney failed to object to the alleged errors presented in grounds of error one and two above. The adequacy of an attorney’s services is judged not by isolated errors at trial, but by the totality of his representation. Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App.1981). We find after reviewing the record as a whole that the trial attorney’s services clearly met the requisite standard of performance. Appellant’s third ground of error is overruled.

Appellant next complains that the court erred in sentencing him to an indefinite term. Because the judge orally pronounced the sentence as “not less than fifteen nor more than twenty years,” appellant argues that the guilty verdict is void for an indefinite punishment. Ex parte East, 154 Tex.Crim. 123, 225 S.W.2d 833 (1950). However, the trial judge later signed a written judgment assessing punishment at the specific term of twenty years. Since written orders control over oral announcements, there is no merit in this ground of error. Eubanks v. State, 599 S.W.2d 815, 817 (Tex.Crim.App.1980).

Appellant argues in his fifth ground of error that the conviction should be reversed because the evidence was “wholly unreliable and insufficient to sustain a verdict of guilty.” Appellant bases this argument on certain inconsistencies in the testimony of the complainant, the convenience store cashier. However, “it is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit.” Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974). The complainant was not the only witness, since Officer Fogle also testified concerning his observations when he arrested appellant shortly after the robbery occurred. Although the sufficiency of the evidence was not specifically challenged in appellant’s brief, we note that there was sufficient evidence to sustain the conviction. We overrule appellant’s fifth ground of error.

The sixth ground of error involves arguments before the court at the punishment phase of the trial. Apparently, the co-defendant in this case (the second assailant) had accepted from the District Attorney a plea bargain of sixteen years’ confinement in exchange for a guilty plea. Appellant refused a plea bargain offer of eight years and elected to try the case. After appellant’s unsuccessful trial, his counsel argued that appellant should receive no more than the sixteen years offered the co-defendant since this term of years obviously represented what the District Attorney’s office considered the crime to be worth. The prosecutor objected to this reasoning, saying that the co-defendant was offered sixteen years in exchange for a guilty plea, a completely different situation from that of appellant, who rejected a plea bargain and elected to go to trial. Essentially, the State’s argument was that appellant should not reap the benefits of his co-defendant’s bargain with the State because, first of all, appellant was not a party to that particular contract. See also Ex parte Williams, 637 S.W.2d 943, 947 (Tex.Crim.App.1982) (en banc), cert. denied, — U.S. -, 103 S.Ct. 2458, 77 L.Ed.2d 1336 (1983). Secondly, the co-defendant received a lesser term of years than the crime really deserved because he pleaded guilty, saving the State the time and expense while avoiding the risk inherent in going to trial. See Bordenkircher v. Hayes, 434 U.S. 357, 363; 98 S.Ct. 663, 668; 54 L.Ed.2d 604, 611 (1978).

Appellant alleges that the State’s references to his not pleading guilty like his co-defendant were impermissible comments on his rights to remain silent and to proceed to trial by jury. He also implies that the court may not penalize him with a longer sentence because he elected to try his case. We believe the appellant’s arguments are at odds with the very nature of plea bargaining. The prosecutor was merely pointing out to the court that the sixteen-year sentence given the co-defendant was the result of his acceptance of a separate plea bargain; therefore, the sixteen-year sentence should be considered a shorter term than that appropriate for appellant’s crime. Despite appellant’s assertions to the contrary, we do not believe the prosecutor’s comments were so highly prejudicial as to require reversal. The sixth ground of error is also overruled.

Appellant’s next two grounds of error allege certain improprieties involving the prior felony conviction used to enhance his punishment. However, we do not reach these allegations in our disposition of the case before us. The prior conviction is outside this record; therefore, we have nothing properly before us to review. Tooke v. State, 642 S.W.2d 514, 517-518 (Tex.App.—Houston [14th- Dist.] 1982, no pet.). Furthermore, appellant pleaded true to the enhancement allegation. When there is no objection at trial, appellant may not attack the validity of the enhancement conviction on appeal. Ex parte Cashman, 671 S.W.2d 510, 512 (Tex.Crim.App.1983) (en banc); Hill v. State, 633 S.W.2d 520, 525 (Tex.Crim.App.1982). These two grounds of error are also overruled.

In addition to the brief filed by appellant’s counsel, appellant has also filed a pro se brief alleging one additional ground of error. There is no provision in Texas for hybrid representation whereby both the appellant and his attorney may file separate briefs. Rudd v. State, 616 S.W.2d 623, 625 (Tex.Crim.App.1981). Therefore, appellant’s pro se brief presents nothing for review. Nevertheless, in the interest of justice, we have examined the contention asserted therein and find no error.

We affirm the judgment of the trial court.


source: Caselaw Access Project

author: JUNELL, Justice.

license: Public Domain

text:
    Bruce Wayne STEPP, Appellant, v. STATE of Texas, Appellee.
    No. C14-84-497CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.

      Vincent B. Tarleton, Houston, for appellant.
    Winston Cochran, Jr., Houston, for ap-pellee.
    Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from a felony theft conviction based upon a guilty plea. Appellant was sentenced by the court for the maximum term of 10 years in the Texas Department of Corrections. The five grounds of error raise two major contentions: (1) that appellant was compelled to testify against himself after receiving inadequate warnings as to his right to avoid self-incrimination and (2) that appellant received ineffective assistance of counsel. Finding all appellant’s arguments without merit, we affirm.

Appellant signed in open court a document entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” The document contains the statement “I waive ... my right against self-incrimination.” It also stated “I am satisfied that the attorney representing me today in court has properly represented me and I have fully discussed this case with him.”

Nevertheless, the appellant contends in grounds of error one and four that his constitutional rights were violated because neither the waiver nor the trial judge explained to him (1) the fact that if he took the stand after pleading guilty, his testimony could be used in a subsequent perjury conviction and (2) the difference between an accused’s right to refuse to take the stand compared to a witness’s right not to answer particular incriminating questions.

Appellant’s only authorities for his contention are federal criminal cases in which the court failed to follow the dictates of Federal Rule 11. Fed.R.Crim.P. 11. Texas courts are not bound to follow Federal Rule 11. Joseph v. State, 614 S.W.2d 164, 165 (Tex.Crim.App.1981).

The Court of Criminal Appeals has recently held that there is no requirement that a defendant be informed of his right against self-incrimination at a trial before a jury on a plea of guilty. Williams v. State, 674 S.W.2d 315, 320 (Tex.Crim.App. 1984) (en banc). We hold that the same is true when a defendant makes his plea before a judge.

Even if the proposed warnings had been required, the appellant gives no explanation of how he was harmed. The only testimony he gave at the guilt/innocence stage was to the effect that he had read the confession and signed it voluntarily after discussing it with his attorney. The first and fourth grounds of error are overruled.

After finding appellant guilty the judge postponed sentencing so that the pre-sen-tencing report requested by appellant could be completed. Appellant fled and was not sentenced until some five years later, after he had been arrested at a road block in West Texas. A pre-sentence investigation was belatedly completed and a punishment hearing held.

In his third ground of error appellant complains that “the sentencing court erred in compelling the appellant to testify and in accepting and enlarging his compelled testimony during the trial.” Appellant does not pinpoint where in the statement of facts the error is found. At the sentencing hearing the prosecution offered into evidence the pre-sentencing report and rested. The report was received into evidence without objection. The defense offered no evidence. Before announcing the sentence the judge asked appellant, who was not sworn, “How did you happen to be arrested, Sir?” Appellant answered. The court then asked what alias he was using at the time of arrest and what other names he had used. The appellant listed a total of six aliases.

The state concedes that it would have been better procedure for the judge to announce his sentence and then ask the defendant whatever questions were necessary to clarify the record. However, we hold that no error was preserved because the defense counsel made no objection to the questioning by the judge. Also, it is clear beyond a reasonable doubt that the appellant was not harmed by the timing of the questions. The imposition of the maximum sentence was clearly justified from the information contained in the report and from the fact that the appellant fled before the originally scheduled sentencing hearing could be held. Ground of error three is overruled.

In his second and fifth grounds of error appellant claims that he was denied effective assistance of counsel at both the trial on guilt/innocence and on punishment. These grounds are also overruled. Appellant does not demonstrate in what particulars his counsel failed to protect his rights. There is absolutely no indication that but for counsel’s unprofessional errors, the outcome of the trial would have been different. See Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The conviction is affirmed.


author: BUTTS, Justice.

text:
    Joe Valdez GARCIA, Principal, Richard Rodriguez and Bruce E. Embrey, d/b/a A-Action Bail Bonds, Surety, Appellants, v. STATE of Texas, Appellee.
    No. 04-82-00511-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 30, 1985.

      Richard Langlois, San Antonio, for appellants.
    Barry P. Hitchings, Asst. Crim. Dist. Atty., San Antonio, for appellee.
    Before BUTTS, CANTU and DIAL, JJ.
   OPINION

BUTTS, Justice.

This is a bond forfeiture case. The sureties appeal the judgment which remitted to them $4,100 of a $5,000 bond on which they were the sureties and Garcia the principal.

These are the relevant dates:
February 4, 1982: Principal entered plea of guilty. Sentencing deferred for pre-sentence report.
March 11, 1982: Principal failed to appear. Forfeiture declared.
April 27, 1982: Judgment Nisi.
June 8, 1982: Principal reincarcerated as result of sureties’ efforts and money expended (this is undisputed).
July 2, 1982: Hearing on cause of failure to appear.
July 13, 1982: Final judgment entered.

From these dates and the record it is apparent that the principal was rearrested before final judgment and that the sureties before trial and in court urged entitlement to remittitur, all occurring before final judgment. The final judgment itself orders the remittitur.

The sureties contend in their first ground of error that the trial court should have entered judgment absolving sureties of liability on February 4, 1982, when the trial court found the principal guilty of theft. This is the content of TEX.REV. CIV.STAT.ANN. art. 2372p-3, § 13(c) (Vernon Supp.1984):

The surety on appearance bonds in criminal cases shall be absolved of liability upon disposition of the case, and disposition as used herein shall mean a dismissal, acquittal, or finding of guilty on the charges made the basis of the bond. [Emphasis added.]

Article 2372p-3, § 1 et seq. pertains to licensing and regulation of bail bondsmen. TEX.CODE CRIM.PROC.ANN. art. 17.01 et seq. (Vernon 1977) pertains to bail. Article 17.09 provides:

Sec. 1. Where a defendant, in the course of a criminal action, gives bail before any court or person authorized by law to take same, for his personal appearance before a court or magistrate, to answer a charge against him, the said bond shall be valid and binding upon the, defendant and his sureties, if any, thereon, for the defendant’s personal appearance before the court or any other court to which same may be transferred, and for any subsequent proceedings had relative to the charge, and each such bond shall be so conditioned except as hereinafter provided. [Emphasis added.]
Sec. 2. When a defendant has once given bail for his appearance in answer to a criminal charge, he shall not be required to give another bond in the course of the same criminal action except as herein provided.
Sec. 3. Provided that whenever, during the course of action, the judge or magistrate in whose court such action is pending finds that the bond is defective, excessive or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause, such judge or magistrate may, either in term-time or in vacation, order the accused to be rearrested, and require the accused to give another bond in such amount as the judge or magistrate may deem proper. When such bond is so given and approved, the defendant shall be released from custody.

By the terms set out in art. 17.09, § 1, the defendant and his sureties are bound by the contract guaranteeing the defendant’s personal appearance before the court for any subsequent proceedings relative to the charge. The primary purpose of an appearance bond is to secure the presence of the defendant in court for trial on the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App.1980). It is accepted in all jurisdictions and in all courts of this nation that sentencing is a crucial part of the criminal process. The facts in McConathy v. State, 545 S.W.2d 781 (Tex. Crim.App.1976) parallel those in the present case. There the defendant entered his plea of guilty and the trial court assessed punishment but did not sentence the defendant. The defendant failed to appear for sentencing. Judgment nisi was entered the following day. That defendant argued his liability was discharged on the date the principal was finally convicted (the date of the plea of guilty). Rejecting this argument, the Court of Criminal Appeals wrote that nothing in the record reflected the defendant had been sentenced. It stated that sentencing was a “subsequent proceeding had relative to the charge,” citing art. 17.09. Id, at 782-83. The principal in the present case failed to appear for sentencing.

When we view the two statutes, art. 17.-09, § 1 and 2372p-3, § 13(c), in light of TEX.REV.CIV.STAT.ANN. art. 5429b-2 (Vernon Supp.1984), the Texas Code Construction Act, we find that the specific provisions of art. 17.09, § 1 regarding “subsequent proceedings relative to the charge” must prevail. To hold otherwise would play havoc with the criminal justice process. If that were the law, all defendants committed to bail would, of necessity, be remanded to custody upon a plea of guilty, a verdict of guilty, or a court finding of guilty, because principal and his sureties would be automatically released from liability. The bonds would terminate at that juncture; unless the bonds remain in force until the criminal process is completed, there can be no guaranty of appearance.

The legislature reviewed the bond laws in 1981 and made no changes in art. 17.09, § 1. It is the manifest intention of the legislature to continue to provide for defendants the right to bail until sentence and judgment, unless otherwise ordered by the trial court. However, it is respectfully suggested to the legislature that the words, “after the defendant is sentenced” be substituted for “finding of guilty” in section 13(c). Further, it is recommended that the words, “Prior to the entry of a judgment nisi” be added as a preface to section 13(c). These modifications would harmonize the provisions discussed in the present case.

In this case the bond remained in effect after the principal’s plea of guilty to guarantee his appearance at the subsequent proceeding, which was sentencing. At that time, had the principal appeared in this case, the sureties would have been absolved of liability. Since the principal failed to appear, they remained sureties on the bond until the principal was reincarcer-ated. The bond was valid and binding upon the principal and his sureties for any and all subsequent proceedings had relative to the charge or until the court released them. When the principal was not available for the subsequent proceeding of sentencing, the appellants’ liability as sureties had not been discharged. Ground of error one is overruled.

The sureties contend that the trial court should have remitted at least ninety-five percent (95%) of the amount of the bond. As remarked by this court in Williams v. State, 670 S.W.2d 717, 720 (f.n. 1) (Tex.App.1984, pet. granted), TEX.CODE CRIM.PROC.ANN. art. 22.16 states:

If before final judgment is entered against the bail, the principal appears or is arrested and lodged in jail of the proper county, the court may, at its discretion, remit the whole or part of the sum specified in the bond if the arrest or appearance is a direct result of money spent or information furnished by the surety or is because of the principal’s initiative in submitting himself to the authority of the court, sheriff, or other peace officers.

The court further noted this statute was amended at the same time and in the same Senate Bill that enacted TEX.CODE CRIM. PROC.ANN. art. 2372p-3, § 13. In footnote 2 at 721 it was also noted that TEX. CODE CRIM.PROC.ANN. art. 22.12a is a new statute while art. 2372p-3, § 13 is an amendment of a previous version, to-wit: old article 2372p-3, § 12(a). See Acts 1973, 63rd Leg., p. 1520, ch. 550 eff. Aug. 27, 1973, discussed in Fernandez v. State, 516 S.W.2d 677 at 679-80 (Tex.Crim.App.1974).

The application of the various bail statutes to determine the surety’s liability in a bond forfeiture case was delineated in Williams v. State, supra. The record in this case shows that the sureties filed their answer to the State’s motion for summary judgment and attached the sheriff’s certificate that the principal was incarcerated in the Bexar County Jail on June 8, 1982. In this instrument the sureties specifically pled for remittitur under criminal statute 22.16, supra, and civil statute 2372p-3, § 13(a) and (b). Williams specifies that a surety’s liability during this period (after entry of judgment nisi but before trial under the criminal statute, article 22.14) can be exonerated or remittitur ordered pursuant to two criminal statutes: art. 22.13 and 22.16 and two civil statutes: art. 2372p-3, § 13(a) and art. 2372p-3, § 13(b). The sureties’ response invoked three of the possible statutes which apply under the facts of this case, that is, all except art. 22.13. We find nothing in the record, however, which shows that the sureties relied upon only one of these statutes at the trial. We find nothing showing reliance only upon art. 2372p-3, § 13(b). While we do not have a statement of facts before us, there are findings of fact and conclusions of law. There is no fact finding that the sureties requested remittitur only under art. 2372p-3, § 13(b). Conclusion of law one is that the trial court has the power of remittitur under TEX.CODE CRIM.PROC.ANN. art. 2216, and the court was not obligated to remit at least ninety-five percent (95%) in accordance with TEX.REV.CIV.STAT. ANN. art. 2372p-3, § 13(b). We agree under the facts of this case that the trial court could properly utilize the provisions of article 22.16 in its order of remittitur. Ground of error two is overruled.

We do not in this opinion reach the question of the constitutionality of art. 2372p-3, § 13(b). The judgment is affirmed.


author: COUNTISS, Justice.

text:
    Joe CAVAZOS and Alicia (Alice) Cavazos (Moreno), Relators, v. Honorable Mackey K. HANCOCK, Respondent, and Roland Simpson.
    No. 07-84-0106-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 31, 1985.

      W. Hugh Harrell, Lubbock, for relators.
    Claude C. Freeman, Freeman & Associates, Inc., Lubbock, for respondent.
    Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.
   COUNTISS, Justice.

This is an original mandamus suit. Tex. Rev.Civ.Stat.Ann. art. 1823, 1824 (Vernon 1964 & Supp.1985). Joe Cavazos and Alicia Cavazos, Relators, seek a writ of mandamus from this Court that would direct the Honorable Mackey K. Hancock, Judge of County Court at Law No. 2 of Lubbock County, Respondent, to set aside a writ of procedendo and proceed to trial on a forcible entry and detainer ease appealed to that court by Mr. and Ms. Cavazos. We deny the request for a writ.

The underlying suit that led to this mandamus action is a forcible entry and detain-er suit filed by Roland Simpson against Mr. and Ms. Cavazos on August 8, 1981, in the Justice Court in Lubbock County. The record contains no return of service on Mr. Cavazos, and a return indicating service after the appearance day, but before entry of judgment, on Ms. Cavazos. On August 31, 1981, Simpson took a default judgment against the Cavazos. Prior to granting the requested relief, the judgment stated:

DEFAULT JUDGMENT
This being the appearance day of the defendant Joe & Alicia Cavazos, and the court being regularly in session at the time and place recited in the citation in this cause, in which cause Roland Simpson is plaintiff and Joe & Alicia Cavazos is defendant, the judge in open court regularly called such cause in its order on the docket, and came the plaintiff Roland Simpson, and, though duly served with precess, the said Joe & Alicia Cavazos, as at all times heretofore, failed to appear or answer but wholly made default, wherefore, the citation with the officer’s return thereon has been duly placed on file with this court, the said Roland Simpson plaintiff, ought to have judgment against the defendant as prayed....

Subsequently, on November 23, 1981, and again on November 24, 1981, the Justice of the Peace signed judgments, in the same cause, denying any relief to Simpson. Then, on March 16, 1982, pursuant to a motion by Simpson, the Justice of the Peace rendered judgment nunc pro tunc dismissing the forcible entry and detainer suit “without prejudice to Plaintiff Roland Simpson’s right to refile in this matter.” The three subsequent judgments do not acknowledge the existence of, or otherwise refer to, the August, 1981, judgment.

Mr. and Ms. Cavazos appealed to County Court at Law No. 2 from the judgment nunc pro tunc. After a hearing on their motion for summary judgment, the judge of the County Court at Law issued a writ of procedendo, that (1) dismissed the “attempted appeal ... for lack and want of jurisdiction in this Court ...,” and (2) ordered the Justice of the Peace to “proceed with the enforcement of the judgment against the said Joe and Alicia rendered in your Court on the 31st day of August, 1981, in favor of Rolan [sic] Simpson....”

Mr. and Ms. Cavazos appealed to this Court from the writ of procedendo, but, consistent with Tex.Rev.Civ.Stat.Ann. art. 3992 (Vernon 1966) (repealed 1983) and Woolley v. Burger, 602 S.W.2d 116 (Tex. Civ.App. — Amarillo 1980, no writ), this Court dismissed the appeal. Cavazos v. Simpson, 668 S.W.2d 507 (Tex.App.— Amarillo 1984, no writ). Mr. and Ms. Cava-zos then filed this original mandamus suit.

In order to decide whether the County Court at Law should be required to try the case appealed to it by Mr. and Ms. Cavazos, we must decide which Justice Court judgment is viable. If, as Mr. and Ms. Cavazos argue, it is the March 16, 1982, nunc pro tunc judgment, then the County Court at Law had jurisdiction. If, however, as the real party in interest, Roland Simpson, argues, it is the August 31, 1981, judgment, then the lower court was without jurisdiction and correctly declined to entertain the appeal. The focal point of the controversy is the failure of the underlying record to affirmatively reflect proper service on both Mr. Cavazos and Ms. Cavazos prior to entry of the August 31, 1981, judgment.

It is clear, of course, that there can be only one final judgment in a ease. Mathes v. Kelton, 565 S.W.2d 78, 80 (Tex. Civ.App.—Amarillo 1977), aff'd on other grounds, 569 S.W.2d 876 (Tex.1978). The first judgment is controlling, and subsequent judgments that do not vacate it are a nullity, Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83, 84 (1941), unless the first judgment is void on its face. See Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961). The principles to be applied in deciding whether the judgment is void on its face were stated by this Court in Waldron v. Waldron, 614 S.W.2d 648, 650 (Tex.Civ. App.—Amarillo 1981, no writ):

If ... the defect is apparent from the face of the judgment, then the judgment is void and subject to either direct or collateral attack. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). If, as in this case, the court having potential jurisdiction renders a judgment regular on its face that contains recitations stating that potential jurisdiction has been activated, i.e., recitations of due service, then the judgment is voidable, not void, and may be set aside only by a direct attack. Akers v. Simpson, 445 S.W.2d 957 (Tex. 1969). The latter result is because a court of potential jurisdiction has the power to determine whether its jurisdiction has been activated, and the recitations making that determination are immune from attack in a collateral proceeding. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

We are satisfied that the judgment dated August 31, 1981, in the forcible entry and detainer case, is the final judgment in that case. It was the first judgment rendered, is regular on its face and contains due recitations of service. As such, it is immune from the collateral attack launched by the Cavazos in this mandamus proceeding. For the same reasons, the County Court at Law correctly dismissed the appeal filed with it in March, 1982. The Cavazos did not perfect a timely appeal from the August, 1981, judgment, Tex.R.Civ.Pro. 749, and the County Court at Law did not, as it correctly concluded, have jurisdiction. Stegall v. Cameron, 601 S.W.2d 771, 773 (Tex.Civ.App.—Dallas 1980, writ dism’d).

The County Court at Law also ordered the Justice Court to proceed with the execution of its August, 1981, judgment. That order, which is the essence of the writ of procedendo, was unauthorized. After the County Court at Law concluded that it did not have jurisdiction, it could only dismiss the appeal and assess costs. Llano Improvement & Furnace Co. v. White, 5 Tex.Civ.App. 109, 23 S.W. 594 (1893, no writ). That does not mean, however, that we should grant the writ of mandamus, because, as stated in Llano Improvement & Furnace Co., supra:

If the county court, in entering a judgment that it could lawfully render, — that is, dismissing the appeal, and awarding costs, — in addition, required the justice court to do that which the law demanded, —that is, execute its judgment, — although it had no authority to make such an order, it would not make invalid the judgment that it had the authority to render.... Upon the dismissal of the appeal by the county court, the law would require the justice court to execute its judgment, and the order of the county court to that effect is requiring no more than is exacted by the law.

Id. at 594-95. See Tex.R.Civ.Pro. 561.

The petition for writ of mandamus is denied.

      . Originally, “procedendo” was a writ to compel a judge to proceed to judgment:
      [The] refusal or neglect of justice, is remedied either by writ of procedendo, or of mandamus. A writ of procedendo ad judicium, issues out of the court of chancery, where judges of any court do delay the parties; for that they will not give judgment, either on the one side or on the other, when they ought so to do. In this case a writ of procedendo shall be awarded, commanding them in the king’s name to proceed to judgment; but without specifying any particular judgment, for that (if erroneous) may be set aside in the course of appeal....
      3. W. BLACKSTONE, COMMENTARIES *109-110. In Texas, as in some other jurisdictions, "procedendo” has come to mean an appeals court’s order to an inferior court to execute judgment. See Houston & T.C. Ry. Co. v. Bounds, 277 S.W. 401, 402 (Tex.Civ.App.—Waco 1925, no writ); 62 Am.Jur.2d Procedendo § 1 at 776 & n. 13 (1972).

      . The excerpt from the judgment is quoted verbatim.

      . Article 3992 was replaced by Tex.Prop.Code Ann. § 24.007 (Vernon 1984).


author: SEARS, Justice.

text:
    James Earl DAVIS, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-363CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.

      William Carpenter, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   SEARS, Justice.

Appellant was convicted of aggravated sexual abuse of a child pursuant to TEX. PENAL CODE ANN. § 21.05 (Vernon 1974), and was sentenced to twenty years’ confinement. He argues that his conviction should be reversed because his plea of nolo contendere was involuntary. We agree and reverse the judgment.

Appellant pled not guilty and demanded and received a trial by jury. The State presented two witnesses, the victim and her brother. After they testified, Appellant’s attorneys called him to the stand in an attempt to persuade him to plead nolo contendere so that the court would conduct a pre-sentence investigation before assessing punishment. Mr. Fry and Mr. Nahas are Appellant’s attorneys. The testimony was as follows:

QUESTIONS BY MR. FRY:
MR. FRY: Mr. Davis, has Mr. Nahas informed you that the State, in exchange for either a plea of guilty or nolo contendere, that you would have a presentence investigation run on your background?
THE DEFENDANT: Yes.
MR. FRY: And he informed you that the presentence investigation would be forwarded to the Judge and you would have a hearing on your punishment to determine what the punishment would be?
THE DEFENDANT: Yes.
MR. FRY: And you have refused to go along with that offer?
THE DEFENDANT: Yes, sir.
MR. FRY: And it is your desire to have the jury trial; is that correct?
THE DEFENDANT: Yes, sir.
MR. FRY: And you do want the Judge to sentence you after the jury trial if you are found guilty?
THE DEFENDANT: Yes, if I’m found guilty.
QUESTIONS BY MR. NAHAS:
MR. NAHAS: I have gone over the facts in the case many times with you, have I not?
THE DEFENDANT: Yes, sir.
MR. NAHAS: And I have consistently and persistently asked you to take a nolo contendere [sic] and upon which plea the Court will promptly find you guilty and then go for a presentence investigation; isn’t that right?
THE DEFENDANT: Yes, sir.
MR. NAHAS: And you have fought me and refused to do that. Now today at recess I had a conference with you and also with Mr. Fry, was that correct?
THE DEFENDANT: Yes, sir.
MR. NAHAS: And I told you, in my opinion, that the evidence adduced thus far is very controverted, did I tell you that?
THE DEFENDANT: Yes.
MR. NAHAS: And I asked you again today at noon? As a matter fact, I got back here at 1 o’clock; isn’t that right?
THE DEFENDANT: Yes, sir.
MR. NAHAS: And talked to you some more about reconsidering and taking the case away from the jury and entering a no contest [sic] to the Court, with a presentence investigation; is that right?
THE DEFENDANT: Yes, sir, it is.
MR. NAHAS: And you wanted to talk to Mr. Fry about it? Now, without any encumbrances or coaxing of myself or Mr. Fry, what is your wish and desire to do?
THE DEFENDANT: To continue it. I know I’m innocent
MR. NAHAS: Continue before the jury?
THE DEFENDANT: Yes, sir.
At this point the trial judge intervened:
THE COURT: Mr. Davis, just so you understand wverything [sic], I am not telling you what to do at all. Let’s get that straight. I am just telling you that if the jury does find you guilty, we are not presupposing anything.
THE DEFENDANT: Yes, sir.
THE COURT: If they do find you guilty, we will hold a punishment hearing immediately after that and the Court will determine at that time. Do you understand a presentence investigation may or may not be ordered by the Court? It is really up to the Court’s discretion whether one will be ordered or not. Do you understand?
THE DEFENDANT: Yes, sir. * ⅝ * * * ⅜
THE COURT: Please feel free to take five minutes, if you want to talk with whomever you want. We do not want to rush anyone into any plea or any decision. It is just that we have a jury waiting back there. I just need to know. I am going to give you five minutes to talk to whomever you want about what to do. Certainly included in that are your attorneys. You hired them for that purpose of advising you. That is all they are doing is advising you. The ultimate decision is yours. Talk with whomever you want in that time and just let the Court know whichever way you want to go. We will go on with the trial. If you want to plead nolo contendere or guilty, you may do that. The Court will follow your wishes at that time. So talk with whomever you want to during this five minutes.
(A short recess.)
THE COURT: What are we going to do?
MR. NAHAS: Plead no contest and set [sic] a PSI [pre-sentence investigation] but I want it in writing.
THE COURT: Dictate what you want to do. You can just ask some questions.

In ground of error one, Appellant alleges that his plea should not have been accepted because it was not freely, knowingly or voluntarily made. In effect, he argues that his attorneys exerted extreme pressure on him to plead nolo in order to receive a PSI. Appellant strenuously resisted their efforts and he changed his plea only after the trial judge intervened and advised him that the court would “follow your wishes” and consider a PSI on a plea, but might not consider it if the jury found him guilty.

After the foregoing testimony the court then accepted the plea and advised Appellant that it would make a determination of punishment after receiving a pre-sentence investigation report and asked Appellant if that was his understanding. Appellant replied, “Yes, sir.” The court then discussed State’s Exhibit One, which outlined the offense, and the trial judge showed Appellant that it included a requirement for a pre-sentence investigation report “to help the court in its determination.” The court asked if Appellant objected to its introduction as evidence and Appellant replied, “No, sir.” The court then set a date for a hearing on punishment at such a time as the court “will have received a pre-sentence investigation report.”

Cases which address the problem of impermissible coercion by defense attorneys are few and far between. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court addressed the issue of voluntariness in general and reiterated the applicable standard of review:

[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harrassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).

Id. at 755, 90 S.Ct. at 1472 (cite omitted). Additionally, the Court instructed that all relevant circumstances must be considered when determining the voluntariness of a plea. Id. at 749, 90 S.Ct. at 1469.

The court of criminal appeals applied this standard in Kelly v. State, 499 S.W.2d 154 (Tex.Crim.App.1978). In Kelly, as in the case at bar, the defendant affirmed that his plea was voluntary in responding to the judge’s admonishments but continued to assert his innocence. The court overruled the defendant’s contention that the plea was not voluntary and quoted Koch v. State, 110 Tex.Crim. 405, 10 S.W.2d 545 (1928), which overruled a similar contention stating that the argument was unsupported and was in conflict with his responses to the trial judge’s admonitions. Kelly v. State, 499 S.W.2d at 156. As set out in Brady, this determination was reached after reviewing the totality of the circumstances. Brown v. State, 491 S.W.2d 124 (Tex.Crim.App.1973), restated this proposition, explaining that in determining whether a plea is voluntary, the fact that all guilty pleas result from some pressure must be kept in mind. However, the court continued, the critical issue is whether, under all the facts and circumstances, the plea was voluntary. Id. at 125. See also Rodriguez v. State, 489 S.W.2d 121 (Tex. Crim.App.1972).

In view of the totality of the circumstances of this case, we cannot say that Appellant’s plea was voluntary although no action of the attorneys fit into one of the Brady categories. Appellant asserted his innocence at all stages of the proceeding, with the exception of when he pled nolo. He rejected his attorneys’ advice to plead nolo on numerous occasions. He even rejected the State’s offer of two years’ confinement in exchange for a plea, preferring to cast his lot with the jury. Appellant stood firm on his plea of “not guilty” until the trial judge implied that he would not order the pre-sentence investigation report if the jury found him guilty, gave Appellant “five more minutes” to reconsider and then allowed Appellant’s counsel one more opportunity to persuade Appellant to plead nolo contendere. The overwhelming importance that Appellant’s attorneys placed on the PSI report, and the position the court took on agreeing to a PSI report on a plea but not on a finding of guilty, convince us that Appellant did not voluntarily enter a plea.

Also of importance is the testimony given at the punishment hearing. A polygraph examiner with fourteen years of experience as an examiner for the Houston Police Department administered two polygraph examinations to Appellant. He testified that Appellant told the truth when he denied committing the crimes and in his opinion, Appellant was innocent. Further, Appellant testified that charges were filed against him solely because his wife had previously filed for divorce and wanted custody of their children. The District Attorney extracted information that Appellant’s wife had left their daughter, whom Appellant was charged with abusing, in his care on several occasions since the date he allegedly sexually abused her. Finally, he again asserted his innocence at the punishment phase of the trial. That remark prompted the trial judge to question why he pled nolo contendere if he was innocent. The court should have granted Appellant’s Motion for New Trial, and failure to do so was an abuse of discretion.

We agree with the sentiment expressed by Judge Onion in his dissent in Thomas v. State, 599 S.W.2d 823 (Tex.Crim.App.1980): “It offends my sense of justice that a guilty plea proceeding is allowed to continue despite a defendant’s protestations of innocence.”

We sustain ground of error one. In light of our disposition of ground of error one, it is unnecessary for us to rule on Appellant’s other grounds of error.

The judgment is reversed and remanded for new trial.


text:
    Edwin Gene ARNOLD, Appellant, v. STATE of Texas, Appellee.
    No. A14-83-637-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.

      Charles F. Baird, Houston, for appellant.
    Winston Cochran, Jr., Houston, for ap-pellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

SEARS, Justice.

The appellant was convicted of murder. The jury sentenced him to imprisonment for life and a $10,000 fine. Appellant seeks a reversal of his conviction on five grounds of error. We affirm.

Appellant was the night bartender at the Cue and Cushion Club on February 16, 1983. About 5:30 that morning he called the club’s general manager at home and told him that as appellant was getting ready to leave the club for the night he had found Carl Hoover, the cleaning man, outside the bar dead with a knife in his chest. The manager told the appellant to call the police, then lock up the club and leave. When the police arrived, Carl Hoover’s body was in a vacant lot near the club with pools of blood leading to the club’s door. The police saw appellant through the club’s window mopping up something and tried to get appellant to open the door. Appellant disappeared into a back room and called the club owner who told him to let the police into the club. When the appellant opened the door he and the club’s floor were covered with blood. He was arrested.

In his first ground of error the appellant asserts that the repeated comments by the prosecutor regarding appellant’s failure to testify constituted misconduct harmful enough to require reversal of his conviction.

In his final argument at the guilt/innocence stage of trial the prosecutor made three statements to which appellant did not object. Appellant now claims these statements comment on his failure to testify:

1) “Mr. Borque says: ‘What does the State lack?’ I think, really all the State lacks is the comprehension of how, why one human being could do this to another. That is lacking. That I can’t tell you.”
2) “We can only imagine what made him do it. We can only imagine some of the sequences, but there is no question that he did it.”
3) “We will never know why. We will never know exactly how. All we know is he did it.”

A prosecutor’s comment on a defendant’s failure to testify offends both our state and federal constitutions as well as TEX.CODE CRIM.PROC.ANN. art. 38.-08 (Vernon 1979). The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused’s failure to testify. See Nickens v. State, 604 S.W.2d 101 (Tex.Crim.App.1980) (en banc), and cases there cited. For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. Id. at 102. The appellant alleges that these comments raised the issue of self defense, a defense which could only be proved by the appellant himself. The comments were not such that the prosecutor was manifestly intending to comment or necessarily commenting on the appellant’s failure to testify. Nor did the comments call for the appellant to address the issue of self defense since the prosecutor could just as easily have been discussing the failure of the appellant to call any witnesses, which does not constitute reversible error. See Davis v. State, 670 S.W.2d 255 (Tex.Crim. App.1984) (en banc), and cases there cited. The first ground of error is overruled.

Appellant alleges in his second ground of error that the trial court erred in overruling his objection to the charge for its failure to instruct the jury on the law of voluntary intoxication as mitigation in punishment. When properly requested the trial court must instruct the jury on every defensive issue raised by the evidence. Williamson v. State, 672 S.W.2d 484 (Tex.Crim.App.1984) (en banc). The proper time for a request and charge on temporary insanity caused by voluntary intoxication is at the punishment phase of trial. Rodriquez v. State, 513 S.W.2d 594 (Tex.Crim.App.1974).

The appellant objected to the court’s charge at the punishment stage of trial before presentation of evidence or reading of the charge to the jury. The evidence presented as of that point consisted of the following testimony:

1) The arresting officer described the appellant as intoxicated and barely coherent.
2) The club owner, whom appellant called when the police arrived at the club and asked to be admitted, testified that the appellant mumbled incoherently on the telephone and sounded intoxicated.
3) Houston Police Department Detective Doyle testified that when he arrived on the scene about 7:00 that morning to investigate, the appellant appeared intoxicated.
4) Henrietta Burris, appellant’s former girlfriend, testified that the appellant called her about 2:00 that morning. She told him to go home because he was drunk. Appellant called her again around 4:00 a.m. and told her he needed help lifting a body because he thought he had killed someone. Again Burris told appellant to go home because he sounded drunk. Appellant called her once more about 5:30 a.m. and asked for help. Burris told him not to call again and hung up. She testified that appellant had had a severe drinking problem for the past two years and she had known him on several occasions to hallucinate while intoxicated. She testified that the hallucinations might have been connected to sniffing paint thinner, which she believed the appellant had stopped doing in October, 1982. She repeated on cross-examination that the appellant was drunk when he made all three phone calls to her.

Testimony elicited from appellant’s mother during the punishment phase might have been sufficient to support the requested charge. However, appellant objected before this testimony was elicited. We conclude the evidence at the time of the objection proved only that the appellant was intoxicated, and did not raise the issue of temporary insanity caused by intoxication. Further, appellant made no objection to the charge when it was submitted to the jury at the punishment stage. The second ground of error is overruled.

In his third ground of error the appellant alleges the trial court erred in not requiring the jury to convict on only one of two disjunctive theories of murder charged by the state. The indictment alleged that appellant intentionally and knowingly caused the death of Carl Hoover both by shooting with a firearm and stabbing with a knife. Over appellant’s objection, the jury was instructed to find appellant guilty if it believed beyond a reasonable doubt that appellant caused Hoover’s death by either method. This ground of error is without merit since the charge may submit the manner and means of committing the murder disjunctively. Zanghetti v. State, 618 S.W.2d 383 (Tex.Crim.App.1981). The third ground of error is overruled.

In his fourth ground of error the appellant asserts the evidence is insufficient to support the verdict under either theory of murder (death by stabbing or firearm) alleged in the indictment. Appellant first argues there is a fatal variance between the indictment and proof because the indictment alleges he “stabbed” Hoover to death with a knife, while the assistant medical examiner testified that the fatal knife wound was inflicted by “cutting.” The actions of appellant in killing Hoover were adequately proven to be one manner or means of death as alleged in the indictment despite the technical distinction made by the examiner. See Phifer v. State, 651 S.W.2d 774 (Tex.Crim.App.1983) (en banc).

The medical examiner testified that the fatal gunshot wounds, although sufficient by themselves to cause Hoover’s death, would not have killed Hoover instantly. Appellant argues that this evidence is insufficient to prove he killed Hoover with a firearm because death could have been prevented by medical treatment and thus there is no proof that the wounds would have been fatal if treated. This argument is without merit since a theoretical rescue does not break the causal chain leading from the appellant’s acts to Hoover’s death. The fourth ground of error is overruled.

In his fifth ground of error appellant alleges that evidence seized following the warrantless search of his truck should have been suppressed.

The appellant was arrested around 7:00 a.m. on February 16, 1983. Later that morning police officers returned to the club to continue the investigation. They were directed by club employees to the appellant’s truck, which was parked in a lot near the club. The officer retrieved Hoover’s bloody shirt from the open bed of the truck and two handguns from the seat of the unlocked cab.

The evidence was properly admitted because the record reflects that the truck was lawfully impounded subsequent to appellant’s arrest and the items would have been inevitably discovered. Miller v. State, 667 S.W.2d 773 (Tex.Crim.App.1984) (en banc). Cf. Gauldin v. State, 683 S.W.2d 411 (Tex.Crim.App.1984) (not yet reported) (en banc) (unconstitutional inventory subsequent to arrest where record was devoid of any evidence that police actually engaged in caretaking function). Further, the shirt was in the open bed of the pickup and the guns were on the seat in plain view. The fifth ground of error is overruled and the conviction is affirmed.


text:
    Sam NICKERSON, Jr., Appellant, v. STATE of Texas, Appellee.
    Nos. A14-84-255-CR, B14-84-256-CR and C14-84-257-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.

      Edward A. Mallett, Houston, for appellant.

      Karen Zellars, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

SEARS, Justice.

This is a consolidated appeal from a conviction for engaging in organized criminal activity pursuant to TEX.PENAL CODE ANN. § 71.02 (Vernon Supp.1984). Appellant was sentenced to forty years’ confinement in the Texas Department of Corrections. He also appeals an order revoking probation received in two earlier convictions. We affirm all three sentences.

On November 3, 1980, appellant waived his right to trial by jury and pled guilty to the offenses of unauthorized use of a motor vehicle (Cause No. 316,975) and burglary of a building with intent to commit theft (Cause No. 319,680). Punishment in both cases was assessed at five years’ confinement in the Texas Department of Corrections. The imposition of sentence was suspended and appellant was placed on five years’ probation. On December 10, 1982, the state filed Motions to Revoke Probation in both causes on grounds that appellant 1) committed burglary of a building with intent to commit theft, 2) committed theft, 3) failed to report as directed, 4) failed to work faithfully at suitable employment, and 5) failed to avoid injurious habits. These motions were carried by the court through appellant's trial and conviction for the offense of engaging in organized criminal activity (Cause No. 385,898). On March 27, 1984, punishment for the primary offense was assessed by the court at forty years’ confinement in the Texas Department of Corrections. On the same day appellant’s probations were revoked, and the original five years’ confinement imposed, the five and forty year sentences to run consecutively.

Appellant’s first ground of error is a four-pronged attack on the sufficiency of the evidence to support the orders revoking probation.

One of the grounds on which appellant’s probation was revoked was a finding by the trial court that appellant committed the offenses of burglary of a building with intent to commit theft, and theft, in violation of the probation condition that he commit no offense against the laws of Texas. The Motions to Revoke Probation alleged that appellant burglarized a building owned by Roy James. (This offense was also the basis for the indictment alleging appellant engaged in organized criminal activity.) Appellant argues that a fatal variance exists between the Motions to Revoke and the proof since the evidence showed the victim was James Roy. A motion to revoke probation need not meet the particularities of an indictment, information or complaint. Champion v. State, 590 S.W.2d 495 (Tex.Crim.App.1979). Where, as here, the state alleges the violation of a condition requiring the appellant to refrain from violating the law, it is not necessary that such an allegation be stated with the precision necessary in an indictment allegation. It is sufficient that a violation of the law be alleged and that fair notice be given to the appellant. Bradley v. State, 608 S.W.2d 652 (Tex.Crim.App.1980) (en banc). Appellant was alleged to have violated the law, and a description of the offense was sufficient to apprise him of the grounds for revocation. We need not address appellant’s other contentions since one sufficient ground for revocation will support the trial court’s order to revoke probation. Moore v. State, 605 S.W.2d 924 (Tex.Crim.App. 1980). The sole ground of error concerning the Motions to Revoke Probation is overruled.

Appellant’s next five grounds of error challenge his conviction for engaging in organized criminal activity.

Appellant is one of several persons arrested and prosecuted for participation in “crash burglaries" committed during 1982 in Harris County. A “crash burglary” occurs when an automobile is driven through a store window or door for purposes of committing theft. Appellant was convicted of engaging in the organized criminal activity of burglarizing a Walter Pye’s store on November 23, 1982. The evidence against him was gathered according to the following scenario.

On November 6, 1982, Herbert Lee Bris-coe was arrested on outstanding traffic warrants. Briscoe, who was on parole, agreed to keep tabs for the police on a group of young black males with whom he associated. Briscoe claimed the group, which included the appellant, committed crash burglaries on a regular basis. According to Briscoe the gang would meet at Frank’s Market and Car Wash in the Third Ward to plan their burglaries. Later in November the police learned from another suspect that the stolen goods were delivered to a “fence” on Leopold Street. On November 22, 1982, the police placed Frank’s under surveillance and obtained a search warrant for the Leopold Street residence. Around midnight the police on surveillance observed the appellant and others gather at Frank’s. Various testimony established that this group went to Greens-point Dodge, stole two cars and returned to Frank’s. From there the group went to Greenspoint Mall and committed a crash burglary at Walter Pye’s Clothing Store. One of the group, Clarence Walker, testified that the appellant participated in this burglary. Meanwhile the search warrant was executed on Leopold Street. Those police received a radio report that cars were approaching the scene, one of which was driven by appellant. Appellant was arrested on arrival at Leopold Street, and stolen articles from Walter Pye’s were discovered in the car. Appellant and others identified by Briscoe as participating in the burglary were arrested.

In his first ground of error the appellant challenges the constitutionality of the Texas organized crime statute, TEX. PENAL CODE ANN. §§ 71.01-05 (Vernon Supp.1984). In particular he complains that § 71.03(1) permits a conviction without the requisite mens rea. This section states that “It is no defense to prosecution under Section 71.02 of this code that: (1) one or more members of the combination are not criminally responsible for the object offense.” Appellant’s argument is without merit since the statute does not, as contended, negate the mens rea requirement. The mens rea required is the intent to establish, maintain, or participate in a combination or the profits of a combination which commits or conspires to commit a burglary. Thus the scienter element of the statute requires that the actor know of the criminal activity of the group. Section 71.-03(1) simply eliminates as a defense the fact that one or more of the members of the conviction are not themselves criminally responsible for the underlying offense of burglary. In addition we note that §§ 71.-01 and 71.02 have been held constitutional. Lucario v. State, 677 S.W.2d 693 (Tex.App.—Houston [1st Dist.] 1984, pet. granted); Moore v. State, 672 S.W.2d 242 (Tex.App.—Houston [14th Dist.] 1983, no pet.). Appellant’s first ground of error is overruled.

Appellant alleges in his second ground of error the trial court erred in overruling his exception to the form of the indictment because he was entitled to know specifically the manner in which the combination intended to violate the statute.

The indictment tracked the statute and alleged that the appellant “intentionally and knowingly, with the intent to establish, maintain, and participate in a combination and the profits of a combination of five or more persons who collaborate in carrying on criminal activities, to wit: Burglaries ...” Appellant complains that the term “burglaries” is not sufficient to place him on notice of the specific criminal activity the combination collaborated to commit since the term is defined several ways in the Penal Code with varying attached penalties. Appellant was convicted of the offense of engaging in organized criminal activity which involves the underlying offense of burglary. Since burglary is only the underlying offense for engaging in organized criminal activity, the elements and acts surrounding the burglary need not be alleged in the indictment. See Linville v. State, 620 S.W.2d 131 (Tex.Crim.App.1981); Lucario v. State, 677 S.W.2d at 696. Appellant’s second ground of error is overruled.

Appellant alleges in his third ground of error the trial court denied him a fair trial by preventing him from presenting an opening statement prior to the presentation of the state’s case in chief. The order of trial proceedings is set forth in TEX.CODE CRIM.PROC.ANN. art. 36.01 (Vernon 1981). The statute provides that a defendant’s opening statement shall be made after the state’s evidence. The statute also provides for the taking of special pleas from the defendant before the state’s opening statement. “Special pleas” are narrowly defined in TEX.CODE CRIM. PROC.ANN. art. 27.05 (Vernon Supp.1984), as those concerning claims of double jeopardy. There is nothing in the record to indicate appellant made a special plea. He objects to a strict application of the statute, however, on grounds that the state's witnesses were also his witnesses. Therefore he needed an opportunity to explain to the jury that he would be cross-examining the state’s witnesses to prove his defensive theory, i.e. that the state was relying on uncorroborated accomplice testimony. Appellant claims he was denied a fair trial because the jury was left with the impression that the witnesses were solely witnesses for the state. While we agree the trial court should have allowed the appellant to make an opening statement following that of the prosecution under these circumstances, we hold it was not reversible error for the court to adhere to the statute absent a showing by the appellant that he was in fact harmed by the denial. The third ground of error is overruled.

In his fourth ground of error appellant asserts the trial court erred in overruling his motion in limine, as a consequence of which the court made admissible various extraneous offenses of which appellant was not given notice in the indictment. To preserve error for review by this court, the denial of a motion in limine is not sufficient. There must be proper objection to the proferred evidence. Basham v. State, 608 S.W.2d 677 (Tex.Crim.App.1980). Moreover, the objection must be made every time the allegedly inadmissible evidence is offered. Boles v. State, 598 S.W.2d 274 (Tex.Crim.App.1980). The record indicates several points at which appellant failed to object to the introduction of extraneous offenses, thus this ground of error presents nothing for review. The fourth ground of error is overruled.

Appellant’s fifth ground of error asserts the trial court erred in overruling his objection to the court’s charge for failing to instruct the jury that Herbert Lee Briscoe was an accomplice as a matter of law. Appellant cites no authority to support his ground of error, therefore it presents nothing for review. Phillips v. State, 511 S.W.2d 22 (Tex.Crim.App.1974); TEX.CODE CRIM.PROC.ANN. art. 40.09, § 9 (Vernon Supp.1985). The fifth ground of error is overruled and the conviction is affirmed.


author: ROBERTSON, Justice. ELLIS, Justice,

text:
    Jacquelyn H. DREWETT, Appellant, v. The STATE of Texas, Appellee.
    No. B14-84-259CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.

      Hogan Stripling, David B. Dickinson, Houston, for appellant.
    John B. Holmes, Dist. Atty., J. Harvey Hudson, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

The jury rejected appellant’s plea of not guilty to driving while intoxicated and assessed punishment at sixty days confinement in the Harris County jail, probated for two years, and a fine of $300. The issue presented by this appeal concerns the effect of a failure by the police to video tape a person arrested for driving while intoxicated. We affirm.

The state’s evidence of intoxication was, without question, sufficient to sustain a conviction. While both appellant and her husband, who was in the automobile with her at the time of the arrest, denied intoxication, the sufficiency of the evidence is not challenged and a review of the evidence in that regard is unnecessary.

Appellant presents four grounds of error on appeal, the disposition of which is governed by an interpretation of Senate Bill 1, Chapter 303, Section 24, 68th Legislature— Regular Session. (So far as we can determine, this specific provision has not been codified into Vernons Texas Statutes, but is included as a “note” in both TEX.CIV. CODE ANN. art. 67011 -1 (Vernon Supp. 1984) and in the TEX. PENAL CODE ANN. § 19.05 (Vernon Supp.1984). Section 24, in its entirety, provides:

Section 24.
(a) Each county with a population of 25,-000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 6701?-1, Revised Statutes, or Subdivision (2), Subsection (a), Section 19.05, Penal Code.
(b) The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant’s appearance within a reasonable time after the arrest.
(c) The fact that an arresting officer or person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection (a) of this section is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section.

This statute had an effective date of January 1, 1984. The instant offense was committed on January 18, 1984.

The only factual basis for appellant’s grounds of error was developed on cross-examination of the arresting officer when she elicited the following:

Q. Did you offer to give her a video?
A. No, sir. We did not.
Q. Is it true that you did not have a video or the machinery for the video at that time?
A. That is correct, sir.
Q. So it was impossible to give her a video tape of her taking the field sobriety test; is that correct?
A. Yes, sir. We had no means to do it with.
Q. Because somebody had failed to provide you with the proper equipment or any equipment; is that correct?
A. I don’t know why we did not have it. We did not have it and we could not video tape it.
Q. Did you have the equipment?
A. No, sir. We did not have the equipment.
Q. And this was on January the 18th, 1984?
A. Yes, sir.
Q. So obviously someone failed to provide you with the equipment?
A. As I stated, I cannot testify as to why we did not have it because I do not know.
Q. Was there a video tape machine anywhere else in the police department at the time?
A. The only one that I know for sure that I can testify is out in the police academy.
Q. Where is the police academy located?
A. Out on Aldine-Westfield.
Q. Is that for giving lectures and so forth?
A. Yes, sir.
The trial court instructed the jury:
You are instructed that under the laws of Texas, a county with a population of 25,000 or more is required to provide electronic devices capable of visually recording a person immediately after his arrest for the offense of driving while intoxicated. Evidence has been introduced in this case that such electronic device was not available in Harris County on January 18, 1984, and that therefore the officer failed to visually record the defendant in this case. This is no evidence that the defendant was intoxicated or was not intoxicated. In your deliberations you shall not consider for any purpose, allude to, comment on or discuss the unavailability of the recording as evidence that the defendant was or was not intoxicated. This evidence has been admitted for the sole purpose of showing, if you so find, the unavailability of a required visual recording at the time of the arrest and the reason therefor.

In her first ground of error appellant contends the court erred in instructing the jury that the absence of an “electronic recording of the defendant at the time of the arrest” could not be considered “as evidence of her intoxication or lack of intoxication” as such was contrary to law and in the second ground she contends the instruction constituted a comment on the weight of the evidence. Appellant groups both grounds for discussion and we will do likewise.

While appellant’s argument is far from clear, it appears to be her position that even if the electronic devices capable of visually recording the person arrested were not available, the fact that the arresting officer did not visually record the accused would be “positive circumstantial evidence of her innocence at the trial of the matter, as allowed by that statute.” The question concerning the interpretation to be given to the statute where the arresting officer consciously and intentionally refuses to “visually record” the accused when equipment in proper working order is available for that purpose is not before us for review. While we recognize serious questions concerning the application of this extremely vague statute, we reserve a discussion of that issue for a case where properly presented.

In order to constitute proper evidence in Texas, the evidence must be material and relevant. Tex.R.Evid. 401 (Vernon 1983). In this case, the evidence that appellant was not video taped because the police did not have the equipment was probative neither of guilt nor innocence. As such, the trial court’s instruction to the jury that the failure of the police to video tape appellant was “no evidence that the defendant was intoxicated or was not intoxicated” was not a comment on the weight of the evidence.

We furthermore cannot agree with appellant’s argument that the “instruction was calculated to injure the rights of the defendant to have the absence of the video tape considered as part of the operative circumstantial evidence that she was not-in-fact intoxicated on the evening of January 18, 1984.... ” Appellant’s first two grounds are overruled.

In her two final grounds, appellant contends the court erred in failing to grant her motion for directed verdict because the arresting officer had failed to video tape her following her arrest. In view of our disposition of appellant’s first and second grounds, we need not address these issues.

The judgment is affirmed.

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the other members of the panel, I would like to record my respectful dissent.

This is an appeal from a judgment of conviction for the misdemeanor offense of driving while intoxicated. The jury found appellant, Jacquelyn H. Drewett, guilty and the court assessed her punishment at sixty (60) days confinement in the Harris County Jail, which was probated for two (2) years, and a $300 fine. I would reverse and remand for a new trial.

Appellant brings four grounds of error on appeal. In her first ground of error she asserts that the trial court erred in charging the jury that they could not consider the absence of an electronic recording of appellant at the time of her arrest as evidence of her intoxication or lack of intoxication because such instruction was contrary to Tex.Rev.Civ.Stat.Ann. art. 6701Í -1 note, p. 105 (Vernon Supp.1985), which mandates such recording devices. As a second ground of error appellant asserts that the court erred in instructing the jury regarding the electronic recording of appellant because such instruction constituted an impermissible comment on the weight of the evidence which was calculated to prejudice the rights of the defendant. In her third ground of error, she alleges that the trial court violated her rights guaranteed by the Texas Constitution by failing to direct a verdict for appellant because the State failed to make a videotape recording of appellant. Her last ground of error asserts that the trial court erroneously overruled appellant’s motion for directed verdict because the State failed to electronically record appellant at or near the time of her arrest.

On January 18, 1984, Houston Police Officer James Campbell observed an automobile swerving from side to side in its lane on a public street in Houston, Harris County, Texas. He also observed the automobile leave its lane during the swerving and almost sideswiped another vehicle. The officer pulled the swerving vehicle over after observing it pull into another lane just in front of an approaching vehicle. The driver got out of the car as Officer Campbell was approaching the vehicle. Campbell identified the driver of the swerving car as appellant.

Campbell testified that appellant wobbled, swayed, and was extremely unsure of her balance. He noticed that appellant had a strong odor of alcohol on her breath. He described her attitude as “extremely argumentative”, “cocky”, “insulting”, and “uncooperative.” Appellant was able to recite the alphabet only to the letter “S”. Officer Campbell administered an on the scene balance test in which appellant wobbled and swayed. Appellant missed placing her finger on her nose two times. When all the tests were finished, the officer determined that appellant was intoxicated. He arrested appellant for driving while intoxicated. At the police station, appellant attempted to take an intoxolizer test but could not supply a sufficient air sample. The officer testified that, in his opinion, appellant could not complete the test because she was drunk.

Appellant testified on her own behalf. She said that she had had only four (4) alcoholic mixed drinks over the course of the evening. She testified that on the night she was arrested, she did not cross lanes without leaving a safe distance between the approaching cars and her car. She claimed that she was not swaying that night nor was she unsure of her balance. She explained her inability to complete the alphabet as the result of having no children and, thus, no need to recite the alphabet. She blamed her inability to complete a breathalyzer at the police station on her nervousness.

Appellant, in her first ground of error, argues that the court erred in charging the jury that it could not consider the absence of a videotape recording of appellant at the time of her arrest as evidence of her intoxication or lack of intoxication. She claims the instruction was contrary to TEX. REV.CIV.STAT.ANN. art. 670Ü-1 note, p. 105 (Vernon Supp.1985) which mandated such videotaping equipment be made available in Harris County. In her second ground of error appellant asserts that the trial court erred in instructing the jury on the videotaping of appellant because it was an impermissible comment on the weight of the evidence. She claims it violated TEX. CODE CRIM.PRO.ANN. arts. 36.14, 38.05 (Vernon 1979 and Supp.1985). Articles 36.14 and 38.05 require, among other things, that the trial judge not express any opinion as to the weight of the evidence. We agree with both grounds of error. Appellant complains of the following jury instruction ...

You are instructed that under the laws of Texas, a county with a population of 25,000 or more is required to provide electronic devices capable of visually recording a person immediately after his arrest for the offense of Driving While Intoxicated. Evidence has been introduced in this case that such electronic [videotape] device was not available in Harris County on January 18, 1984, and that therefore the officer failed to visually record the defendant in this case. This is no evidence that the defendant was intoxicated or was not intoxicated. In your deliberations you shall not consider for any purpose, allude to, comment on or discuss the unavailability of the recording as evidence that the defendant was or was not intoxicated. This evidence has been admitted for the sole purpose of showing, if you so find, the unavailability of a required visual recording at the time of the arrest and the reason therefor.

TEX.REV.CIV.STAT.ANN. art. 670Ü-1 note, p. 105 (Vernon Supp.1985) requires that:

(a) Each county with a population of 25,000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 6701L-1, Revised Statutes, or Subdivision (2), subsection (a), Section 19.05, Penal Code.
(b) The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense in Subsection (a) of this section may visually record the defendant’s appearance within a reasonable time after the arrest.
(c) The fact that an arresting officer or other person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection (a) of this section is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section, (emphasis ours).

The statute was effective on January 1, 1984, just eighteen (18) days before appellant’s arrest. It makes possession of videotape devices by the affected counties mandatory, and Harris County falls within this statute. Officer Campbell was questioned by appellant’s counsel about the lack of a videotape recording of appellant:

Q. Did you offer to give her a video?
A. No, sir. We did not.
Q. Is it true that you did not have a video or the machinery for the video at the time?
A. That is correct, sir.
Q. So it was impossible to give her a video tape of her taking the field sobriety test; is that correct?
A. Yes, sir. We had no means to do it with.
Q. Because somebody had failed to provide you with the proper equipment or any equipment; is that correct?
A. I don’t know why we did not have it. We did not have it and we could not video tape it.
Q. Did you have the equipment?
A. No, sir. We did not have the equipment.
Q. And this was on January the 18th, 1984?
A. Yes, sir.
Q. So obviously someone failed to provide you with the equipment?
A. As I stated, I cannot testify as to why we did not have it because I do not know.
Q. Was there a video tape machine anywhere else in the police department at the time?
A. The only one that I know for sure that I can testify is out in the police academy.
Q. Where is the police academy located?
A. Out on Aldine-Westfield.
Q. Is that for giving lectures and so forth?
A. Yes, sir.

First, the court’s instruction was a misstatement of the law. The law provides that the lack of a videotape recording is admissible at trial. The legislature did not prohibit the admissibility of such evidence. However, in the instant case, the court prevented the use of the lack of the videotape recording by instructing the jury that:

In your deliberations you shall not consider for any purpose, allude to, comment on or discuss the unavailability of the recording as evidence that the defendant was or was not intoxicated. This evidence has been admitted for the sole purpose of showing, if you so find, the unavailability of a required visual recording at the time of the arrest and the reason therefor, (emphasis ours).

This clearly is not the law. The law states that the fact that an arresting officer failed to visually record a person arrested for an offense listed in Subsection (a), of Senate Bill 1, Section 24, is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section. The judge has instructed the jury contrary to what the law dictates which is clearly error.

The court’s instruction was also a comment on the weight of the evidence. The instruction stated that evidence showed that videotape equipment was not available in Harris County on the date of the arrest, January 18, 1984, and that was the reason that Officer Campbell failed to visually record appellant in this case. The record does not show that videotape equipment was not available in Harris County on January 18, 1984. The only witness who testified to the availability of the videotape devices was Officer Campbell, an officer with the Houston Police Department. He was not qualified to testify to the availability of videotape recording devices in the Houston Police Department or in Harris County, Texas. He stated that the video tape equipment was not available to him and that he did not know why. He did not say that it was not available to the Houston Police Department.

We find that both errors harmed appellant and deprived her of a fair and impartial trial. The test for harmless error is whether there is a reasonable possibility that the evidence or error complained of might have contributed to the conviction or affected the punishment assessed. Johnson v. State, 660 S.W.2d 536 (Tex.Crim. App.1983). In our case the instruction constituted a misstatement of the law and a comment on the weight of the evidence. By preventing the consideration by the jury of the lack of a videotape recording of appellant, the court eliminated the defense’s argument that the lack of such a recording was a result of the officer’s fear of being contradicted as to his opinion of appellant’s sobriety. The unavailability of a plausible explanation of the lack of a recording might have, in reasonable probability, contributed to the conviction of appellant.

By instructing the jury that it could not consider the absence of the videotape recording evidence for all purposes or without limitation, the trial court’s instruction was calculated to injure the right of appellant to have the absence of the videotape recording considered by the jury as part of the operative circumstantial evidence that she was not in fact intoxicated on January 18, 1984, some eighteen (18) days after the legislature directed Harris County to provide such devices. Tew v. State, 551 S.W.2d 375 (Tex.Crim.App.1977); O’Brien v. State, 169 Tex.Crim. 304, 334 S.W.2d 177 (Crim.App.1960). The presence of this impermissible and erroneous instruction deprived appellant of a fair and impartial trial, and she is therefore entitled to a reversal of the judgment and a new trial.

Since I would reverse on the first two grounds of error, I need not consider the other grounds of error.