OPINION
This appeal is taken from a conviction for burglary of a building. After the jury found the enhancement paragraphs of the indictment alleging two prior felony convictions were true, the court assessed appellant’s punishment at life imprisonment. See V.T.C.A., Penal Code, § 12.42(d). On appeal we are confronted with a claim as to the invalidity of the enhancement portion of the indictment and a contention that jury note-taking was improperly permitted.
I.
Initially, appellant urges the trial court “erred in failing to grant defendant’s motion to quash the enhancement paragraphs of the indictment because the enhancement paragraphs were at a fatal variance with the proof.”
Appellant directs our attention to two oral motions to quash urged during the trial on the merits, but neither is based on the foregoing contention. Thus, the matter urged on appeal was never presented to the trial court. Nothing is presented for review.
Further, and more importantly, we observe that if the proof failed to support the enhancement allegations the punishment could not be legally enhanced, but this would not be grounds to quash that portion of the indictment. The office of a motion to quash an indictment is normally addressed to the sufficiency of the allegations therein, and not to whether there may be or is a variance between the allegata and the probata.
*875 II.
After reviewing and construing the argument submitted in support of the foregoing ground of error, we conclude that the stated ground of error is not the real thrust of appellant’s argument. In Article 40.09, § 9, V.A.C.C.P., it is stated in part:
“. . .If the defendant includes in his brief arguments supporting a particular ground of error, they shall be construed with it in determining what point of objection is sought to be presented by such ground of error; and if the court, upon consideration of such ground of error in the light of arguments made in support thereof in the brief, can identify and understand such point of objection, the same shall be reviewed notwithstanding any generality, vagueness or any other technical defect that may exist in the language employed to set forth such ground of error.”
The arguments advanced in appellant’s brief under this ground of error are confusing and somewhat multifarious, but the real thrust of appellant’s contention is that the allegations as to the prior convictions used for enhancement did not allege the particular courts in which said convictions occurred so as to enable him to take issue thereon, and to show, if possible, there was a mistake in identity or that there was no final formal conviction or the like. We do observe that the appellant did make an oral motion to quash the enhancement portion of the indictment on this basis late in the trial on the merits. We shall therefore consider, under the mandate of Article 40.-09, § 9, supra, appellant’s contention.
The enhancement paragraphs (so designated in indictment) alleged:
“Before the commission of the offenses alleged in Counts One and Two on July 23, 1951, in Cause Nos. 64148 and 64601, in Harris County, Texas, the Defendant was convicted of the felony offenses of Attempted Burglary and Theft, respectively.
“Before the commission of the offenses alleged in Counts One and Two, and after the convictions in Cause Nos. 64148 and 64601 were final, the Defendant committed the felony of Unlawfully Breaking and Entering a Motor Vehicle and was convicted on April 14,1959, in Cause No. 86566, in Harris County, Texas.”
Count No. 2 was waived and abandoned by the State, and the jury found the appellant guilty of burglary as charged in Count No. 1. At the beginning of the penalty stage of the trial, upon the motion to quash being made, the State asked to delete from the allegations of the prior convictions those concerning the attempted burglary conviction. Thereafter, the court submitted to the jury the question of whether the appellant had been previously convicted of theft and breaking and entering a motor vehicle.
It is well settled that it is not necessary to allege prior convictions for the purpose of the enhancement of punishment with the same particularity as must be used in charging the original offense.
Broughton v. State,
Nevertheless, it has been held that in alleging prior convictions for enhancement definiteness and certainty are required in the State’s pleadings.
Papageorge v. State,
“The accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein.”
*876
In
Childress v. State,
“. . . It is true that the appellant has the right to be advised by averments in the indictment as to the records of the former convictions, and also the right to be guarded against the hazard of the use by the state on a subsequent occasion of a conviction that has theretofore been used to enhance the penalty. Childress v. State,131 Tex.Cr.R. 487 ,100 S.W.2d 102
In
Palmer v. State,
“This averment is necessary in order to give the accused notice that a greater penalty is to be sought than for a first offense, and to enable him to take issue thereon, and if possible show there is a mistake in identity, or that there was no final former conviction or the like.”
It has been frequently held that in alleging a prior conviction for enhancement of punishment the allegations should include the court in which the conviction was obtained, the time of the conviction and the nature of the offense.
Neece v. State,
In
Arce v. State,
In the instant case there was a motion to quash the enhancement portion of the indictment since the district courts in which the prior felony convictions occurred were not named or designated.
The enhancement allegations do describe the prior convictions as being for felony offenses, giving the nature of the offense, the case numbers of the causes in Harris County in which the convictions were obtained and the dates of such convictions. *877 The allegations, in their own way, also state that each offense was committed after a final conviction in the preceding case. The allegations do not, however, mention the name or designation of any court. The State argues that since only the district court has jurisdiction of felonies, Article V, § 8, Texas Constitution, and all the prior convictions were alleged to have occurred in Harris County the appellant would have no difficulty in ascertaining the records of the prior convictions, particularly in light of the cause numbers given. The State calls attention to Article 199(11), V.A.C.S., as amended in 1963 which provides in part:
“In all suits, actions, or proceedings in said Courts, it shall be sufficient for the address or designation to be merely ‘District Court of Harris County.’ ”
It appears to be the State’s argument that while the above designation was not even alleged the same was clearly inferable from the allegations made.
The State notes that although appellant’s counsel claimed at the time of the motion to quash he had been unable to locate the records of the prior convictions, he offered no proof of the same, and that the colloquy at the bench on an earlier motion to quash on another basis clearly indicated appellant personally was familiar with the records.
The State points out that such colloquy reveals appellant, acting as co-counsel with permission of the court, argued to the court that the prior convictions alleged had been previously used for enhancement of punishment in another case, giving the date of such trial, etc. The prosecutor responded that only one of the prior convictions alleged (Cause No. 86,566 — breaking and entering a motor vehicle) had been previously used in another cause, but the conviction there obtained had to be set aside and that prior conviction thus had not been successfully used for enhancement and was available in the instant case. No proof or further argument was offered, and the court overruled the motion to quash then made. 3
We conclude, although not without difficulty, that the enhancement of punishment allegations are sufficient. The prior convictions were described as felonies, the exact nature of the offenses was given, the cause numbers in which the convictions were obtained and the dates of such convictions were set forth. Although the courts were not named, it was alleged that all convictions occurred in Harris County, and that each felony offense was committed after a final conviction in the preceding case. Since only district courts have jurisdiction of felony cases, the convictions alleged were all in the same county with the cause numbers stated, and given the particular circumstances of this case, the trial court did not err in overruling the motion to quash the enhancement portion of the indictment.
We conclude the appellant was not misled and that under the circumstances was given adequate notice by the allegations in the indictment.
Nothing in this holding, however, should be construed as the approval by this court of this type of pleading. The drafter of the enhancement allegations, although not required to use the same particularity in regards to a primary offense, should keep in mind that definiteness and certainty are required and the accused is always entitled to proper notice of any prior conviction alleged for enhancement of punishment, etc., as previously discussed.
Far too often it appears the drafter of the indictment, a member of the prosecution’s team, concerns himself with lightening the prosecution’s burden and alleges as little as possible to avoid variances between the allegations and the proof, clerical errors and other things which might affect effective prosecution. While these are legitimate concerns of the State, 4 the drafter *878 should never overlook the primary purpose of allegations relating to enhancement of punishment.
III.
Next, appellant contends the trial court erred in not granting his motion for a mistrial upon discovery of jury misconduct, to-wit: the taking of notes and the discussing of the same during deliberations.
On the third morning during the guilt stage of the trial the court informed the jury that it had come to the court’s attention that some jurors may have been taking notes. They were instructed not to take any further notes, if notes had been taken, that written notes were not to be used in the jury’s deliberations nor disclosed to other members of the jury. The appellant asked to interrogate the jurors concerning note-taking, but the court denied such interrogation until the conclusion of the trial. When the trial ended, the appellant moved for a mistrial on the basis of the note-taking and it was denied. The jurors were then interrogated. Nine jurors stated they had not taken any notes and that notes were not used in their deliberations. The foreman Dutton and jurors White and Ernst testified they had taken notes until such time as the court had instructed them not to do so. Dutton, who had read his notes from the first two days of trial on the third morning, handed his notes to the bailiff following the court’s instructions. White and Ernst testified they ceased note-taking upon the court’s instructions, put them away and did not read them at all. The three note-taking jurors testified the notes were not referred to or used in any way during jury deliberations.
In
Watkins v. State,
Nonetheless, there is a wide difference of opinion among the authorities in this country as to the propriety of jurors taking notes and their subsequent use in the jury room.
In
State
v.
Ledet,
There is substantial body of authority which holds jurors may not take notes of the trial proceedings and a trial judge may forbid them doing so. The reasons behind the prohibition have been stated in several cases. In
United States v. Davis,
. . It gives the juror taking notes an undue influence in discussing the case when he appeals to his notes to settle conflicts of memory. Without corrupt purpose, his notes may be inaccurate, or meager or careless, and loosely deficient, partial, and altogether incomplete. With a corrupt purpose, they may be false in fact, entered for the purpose of misleading or deceiving his fellows when he comes to appeal to them. There is no protection against such dangers except to forbid the practice. . . . ” 7
In
Cheek v. State,
In
Thornton v. Weaber,
The Wisconsin Supreme Court has also apparently subscribed to the view that note-taking is improper. In
Fischer v. Fischer,
For other cases which do not commend the practice of note-taking, see
Gipson v. Commonwealth,
Most authorities, however, take the view that the making and use of trial notes by the jury is not misconduct but is proper and may even be desirable where it is unattended by undue consumption of time.
9
14 A.L. R.3d 831, 834;
Goodloe v. United States,
In
Davis Die Co. v. Beltzhoover Electric Co.,
“It is urged that the notes might be taken incorrectly and thus improperly influence the jurors in their deliberations. Certainly there would be as great danger of error upon the ‘tablets of their memory’ as upon the tablets in their hands. In the days when fewer men could read or write it might have been possible for one who could do so to use these abilities improperly. Today it is hardly likely that such a state of affairs would exist. While the stability of rule and precedent is desirable, it is not so important as to require inflexibility in the presence of changed conditions, indicating the necessity, or at least reason, for adaptation to modern conveniences and practices adopted by men in the conduct of the ordinary affairs of life.”
In United States v. Campbell, supra, the Court wrote:
“In the opinions of some of the appellate courts which disapprove [of] the taking of notes by jurors, the view is expressed that where one or more of the jurors take notes they will in the event of disagreement in the jury room as to the evidence given by a certain witness or witnesses persuade the other members of the jury to accept their version of such testimony even though such version might be erroneous. In the days prior to the advent of court reporting, in the event of disagreement among the jurors as to certain testimony, there would not have been any satisfactory way of verifying what a witness or witnesses did actually testify. Since the advent of court reporting, when jurors get into a disagreement as to certain testimony, they can and do request that the testimony in question be read to them by the reporter.”
In
United States v. Chiarella,
“The notion has at times been countenanced that jurors should not be allowed to take notes, on the theory that they *881 take on an undue importance when the jury deliberates. . . . The supposed dangers appear to us far-fetched, if not imaginary; but even if we are wrong, it has never been suggested that the judge must permit the practice; the question has always been whether he must forbid it. Moreover, it is at most a matter of discretion.” 10
The American Bar Association Standards for Criminal Justice Relating to Trial by Jury approves the taking and use of notes by jurors. Standard 4.2 provides:
“Jurors may take notes regarding the evidence presented to them and keep these notes with them when they retire for their deliberations. Such notes should be treated as confidential between the juror making them and his fellow jurors.”
Under the Uniform Rules of Criminal Procedure, if note-taking by the jurors will likely assist them in their deliberations, the court may permit them to take notes under appropriate conditions and admonitions. The notes may be disclosed only to fellow jurors during deliberations. Unif.R. Crim.P., Rule 513(e).
It clearly appears that in the absence of statute the majority view in this country is that the matter of note-taking by jurors and their subsequent use during deliberations is left to the sound discretion of the trial court. Wharton’s Criminal Law and Procedure, Vol. V, § 2112, p. 295; 89 C.J.S. Trial § 456, p. 80;
State v. Jackson,
Strangely enough, it does not appear that this court has passed on the specific question of the propriety of the taking of notes by jurors in a criminal case in this state. This may be due to the fact that most criminal trial judges do not permit such note-taking. Suprisingly, the Supreme Court of Texas has not passed on the question either in civil cases. There are, however, several opinions by the various Courts of Civil Appeals, but they are not entirely harmonious and have not definitely answered the question but have found the practice harmless when the notes pertained to undisputed issues or where the notes were not held out to the other jurors as evidence.
Brooks v. Temple Lumber Co.,
In
Commercial Music Co. v. Klag,
In
Guest v. American Petrofina Co.,
“. . . It was not conclusively shown that the use of the notes affected the verdict of the jury, but we quickly announce the admonition that the taking of notes into the jury room is to be frowned upon by the courts until such time as the Supreme Court prescribes a rule that all jurors may take notes during the trial and use them during their deliberations^ As the testimony reflects in this case, only one person took notes, and it would be easy for such juror to influence the decision of other jurors if they thought his notes reflected a better recollection of the facts as they came from the witness stand than their personal memories.”
A somewhat different view was taken in
Manges v. Willoughby,
In the Manges case the court noted the trial court had found the notes taken on the item of damages were not held out as evidence and there was no showing that the notes did not correctly reflect the testimony. Under these circumstances, the court held that action of taking notes resulted at most in harmless error. See Texas Rules of Civil Procedure, 226a, 287 and 327.
In
English v. American Foreign Ins. Co.,
Nevertheless, the court concluded the record failed to show the use of notes resulted in probable injury. They were read and referred to only to determine the exact date of the plaintiff’s hospitalizations and evidence as to such was undisputed.
In
Twin City Fire Ins. Co. v. Gibson,
. The taking of notes during the trial of a cause by a juror and the subsequent use of such notes should be attacked by a motion for mistrial based upon jury misconduct. No motion and accompanying evidence was tendered in this case. Further, a litigant in order to avail himself of the benefit of such motion must show by competent proof that such conduct on the part of the jury was prejudicial and harmful. See: 3 McDonald, Texas Civil Practice, §§ 14:15 and 14:16.1.”
*883
The decision leaves the inference that jury note-taking is improper but such action was not properly attacked. For other cases holding that the lack of a timely objection waives any error resulting from jury note-taking, see
State v. Trent,
After due consideration of the facts in the instant case, we cannot conclude that this is the proper vehicle to lay down a hard and fast rule in criminal cases as to the propriety of jury note-taking and subsequent use in deliberations.
Assuming that note-taking is improper, reversible error is not here indicated. It has been held that the taking of notes by some members of a jury does not amount to such jury misconduct as to warrant a new trial where the practice is discontinued upon admonishment by the court.
Batterson v. State,
Still further, it has been consistently held that the taking of notes by a juror is not a ground for a new trial where the accused was not injured thereby. See 24 C.J.S. Crim.Law § 1449(5), p. 113;
Brooks v. Temple Lumber Co., supra; Guest v. American Petrofina Co., supra; Manges v. Willoughby, supra; English v. American Foreign Ins. Co., supra; Twin City Fire Ins. Co. v. Gibson, supra; State v. Jackson,
In the instant case the taking of notes by three jurors was discontinued upon admonishment by the court. The notes were not referred to or used in the jury’s deliberations. As soon as the trial was concluded, the trial judge permitted interrogation of the jurors concerning the note-taking, and the notes taken were made part of the record and the same have been examined by this court. We cannot conclude there has been any showing that the appellant was harmed by such note-taking. The trial court did not err in overruling the mistrial motion. Appellant’s contention is overruled.
The judgment is affirmed.
Notes
. While it is better practice to also allege the style of the case in which the prior judgment of conviction was entered, the failure to so allege does not render the pleading fatally defective.
Riley
v.
State,
“While the carelessness here involved is not to be condoned, we are unable to say that appellant has shown surprise or that he was misled to his prejudice. See Burton v. State,493 S.W.2d 837 (Tex.Civ.App.1973); Loud v. State,499 S.W.2d 295 (Tex.Cr.App.1973).”
To the extent that
Corley v. State,
158
Tex.
Cr.R. 207,
Further, it should be noted that it is not necessary to allege the dates of the commission of the prior offenses (resulting in convictions) which are used for enhancement of punishment.
Loud v. State,
supra;
Hernandez v. State,
. Arce, Prodon and Teamer, as well as the instant appeal, are all Harris County cases.
. No ground of error is advanced on this basis.
. Variance problems can present themselves during a trial where enhancement of punishment is sought. In
Goodale v. State,
146 Tex. Cr.R. 568,
. At least nine states have enacted statutes which expressly authorize jurors to take notes in criminal cases. Cal.Pen.Code, § 1137; Idaho Code Ann., § 19-2203 (1947); Iowa Code, § 784.1 (1954); Minn.Stat.Ann., § 631.10
*879
(1947); Mont.Rev.Codes Ann., § 94-7303 (1947); Nev.Rev.Stat., § 175.390 (1957); N.Y. Code Crim.Proc., § 426; N.D.Rev.Code, § 29-2204 (1943); Utah Code Ann., § 77-32-2 (1953). Louisiana has a statute that prohibits the use of juror’s notes. La.C.Cr.P., Article 793. See
State v. Ledet,
In
State v. Ledet, supra,
the court held that the statutory policy of R.S. 15:470 (prohibiting impeachment of verdict by a juror) prevails over C.C.P., Article 793 (jurors should not take notes). The decision in
State v. Fortenberry,
In Ledet juror Gros took notes, referred to them occasionally to verify his own memory and in one or two instances used the notes in deliberation to verify other jurors’ recollection of testimony. After noting that discovery of a violation of the statute after the verdict was not necessarily prejudicial and reversible error, the court wrote:
“. . . Nor are we here faced with a situation where the state encouraged an open violation, nor where the trial court refused over defense objection to prohibit compliance with this legislative direction, so that reversal is the only way to enforce this legislative mandate.”
. See
Thornton v. Weaber,
. It has been also suggested that a juror may make copious notes at the commencement of the trial as the plaintiff or State presents the case, but as the novelty of note-taking wears off decreases his note-taking activities or ceases note-taking at all, resulting in notes taken into deliberations that are top heavy in favor of one party to the lawsuit.
. For later Indiana cases holding note-taking discretionary with the trial court, see
Dudley v. State,
. In
Denson v. Stanley,
. Those who argue in favor of the taking and use of juror’s notes contend that judges and lawyers take notes so why shouldn’t jurors?
Dudley v. State,