*1 hearing constitut and the motion to revoke delay. Bobo v. ed undue State, 445 Cox (Tex.Cr.App.1972); compare (Tex.Cr.App.1969); (Tex. S.W.2d 252 Howard v. Cr.App.1973).
Appellant complains also of cer in the record. He has tain clerical errors Ellis, Dallas, appellant. John only ques harm shown no therefrom. The H. Wade, Atty., and tion Court is a consideration Henry Dist. before this John Dallas, his judge D. Atty., whether or not the trial abused Hagler, Dist. Asst. Jim Huttash, Vollers, conclude that no such Atty., Robert A. discretion. We State’s probation Austin, presented for the State. of Atty., abuse is here. The Asst. State’s appellant entirely ceased ficer testified that after reporting paying and his fees soon OPINION Appellant’s being placed probation. on only became was that his wife defense ROBERTS, Judge. California, and wished to move to pregnant town and an order re- became left Appellant seeks relief from so he “scared” probation. Initially, Angeles. entered voking he moved to Los his driving a charge of plea guilty to a judgment is af- find no error. We over without motor vehicle of value $200 firmed. Appellant was the consent of the owner. He year probated sentence. a two assessed trial court abused its
now that the contends pro- subsequently revoking his discretion in bation. the revo
He first contends that improper after cation was since it occurred JONES, Appellant, Norman Norris expiration probationary period. of his probation Appellant placed on was approximately six March 1969. After Appellee. Texas, The STATE months, his appellant reporting to ceased No. 45977. required probation paying the officer and July filed on fees. A motion to revoke was Appeals Texas. Court of Criminal 22, 1970; capias the same was issued March 1973. day. Appellant subsequently extradit was Rehearing Denied June 1973. hearing ed re from California and the July Rehearing Second Denied September probation voke his was held on 11, 1972. hearing conclude that the
We revocation properly was Both the motion to re- held. capias voke and the were issued before the probationary period expired. Appellant serving
was extradited after to Texas sentence in the fact California. view of left the had time, period incarcerated for a can- we period not conclude that the between the *2 Roberts, opinion in J., dissenting filed a Odom, J., joined.
Odom, dissenting J., opinion filed an a rehearing from the denial of and Rob- erts, J., concurring filed an in the rehearing.
dissent from denial Bruder, (Court- Dallas
Melvyn Carson appellant. appointed appeal only), for Wade, Atty., B. Henry Dist. James Dallas, Scott, Atty., D. Asst. Dist. Jim Vollers, Atty., Robert A. Hut- State’s Austin, tash, Atty., Asst. State’s State.
OPINION
DAVIS, Commissioner. Appeal is taken from conviction possession of heroin. After punishment guilty, turned a verdict thirty-five years. by the assessed outset, appellant complains At the as to illegal and search were so the arrest seized incident thereto render evidence inadmissible. officers, police
Dallas
armed with
warrant,
appellant’s apart-
entered
search
did
Dallas,
premises
East Robbins Street”
Street, in
as “302
ment on Junction
of “304 Robbins
search
morning
May
not authorize
early
hours of
State, supra, the
heroin,
capsules
In Combs
hypoder-
Street.”
seized nine
ad-
officers
invalid where
syringe
and three burnt
search was held
mic
and needle
erroneously
they
described
spoons.
mitted
they
premises
when
which were searched
*3
Appellant urges
testimony
that the
is in-
the
war-
prepared the affidavit for
search
conclusive that the search which revealed
rant.
In
Tex.Cr.R.
Childress
at the
incriminating
the
evidence occurred
110,
467,
if the
it was stated
294 S.W.2d
address
in the warrant.
described
not that described
residence searched was
war-
in the
then
valid search
warrant,
no
upon
The
warrant and affidavit
search
existed.
authorizing
rant
the search
place
it is based describe the
to
which
“apartment
story
searched as
two
instant case to be
We find the
complex”
apartment
multi-unit
located
foregoing cases
distinguishable from the
city
in the
of Dallas.
Street
Junction
testimony of
by appellant. The
relied on
attention to
Appellant directs our
officers,
the search war
the
the return on
report” prepared by
“prosecution
Officer
tak
property was
rant
that seized
(reflects
Green,
Department,
Police
of the Dallas
warrant),
in the
described
en from address
“Place of arrest 3213
which reflects:
report, except
that
prosecution
and the
place in
Junction, Apt.
At another
107.”
portion
the arrest
which shows
report
and how commit-
the
after “where
reflect that
place
Junction,
taken
at 3213
ted,”
as “3212
the address is listed
Junc-
apartment 107
conducted at
the search was
ap-
tion,
107,”
which
Apt.
the same address
complex at 3212
apartment
a multi-unit
pears
and search warrant.
in the affidavit
in the
the address described
Junction,
“prosecution
place
At still
the
another
that the State
find
search warrant. We
listed
appellant is
report,”
address of
the
proving that
discharged its burden
of.
Apt.
Junction,
as “3212
107.”
prem
upon the
found
the contraband was
by the
be searched
authorized to
ises
Williams,
T.
one of the officers who
J.
Childress v.
search
See
warrant.
in re-
question,
made the search in
testified
place
Further,
long as the
supra.
sponse to a
on cross-examination
described
the residence
searched was
by appellant
the address
as to whether
warrant,
arrest
appellant was
the fact that
rather
than
searched was 3213 Junction
not render
address does
ed at another
knowledge, it
my
that “to
3212 Junction
search invalid.
on the even side of
was 3212.
was
erred
street,”
place
was lo-
the court
and that the
searched
that
Appellant contends
re-
apartment com-
multiple-unit
request
his
that
refusing
cated
“a
of the voir
plex.”
notes
porter take shorthand
dire examination.
Green,
participated in the
who
Officer
re-
“prosecution
prepared
and
search
appellant, prior
reflects that
The record
listing
thought the
port,” testified that he
writing to
trial, requested
the court
as 3213
place
of arrest
record
reporter
Junction
the court
order
typographical error.
propounded
answers
questions and
during voir dire examination.
contention, appellant
his
support
40.09,
Sec.
Appellant relies on
cites Balch v.
134 Tex.Cr.R.
portion
Ann.C.C.P.,
pertinent
676;
State, 141Tex.Cr.R.
Combsv.
Vernon’s
request of ei-
“At the
provides:
of which
and
jected had voir dire been but the court noted that did not render ODOM, J., joins this dissent. propri- the court’s harmless since the ety refusing permit a defendant to particular question ask a on voir dire ex- MO- OPINION APPELLANT’S ON prospective jurors amination of often must TION FOR REHEARING upon
be based the relation of the *5 dire The entire voir examination. ONION, Presiding Judge. rule in a announced Vines enables defend- “tongue request ant to a in make cheek” original majority submission the On recorded, that the voir dire examination be held, among things, other the hoping that such deny the trial court will had failed to that some action oc claim and, thus, request open the for rever- door the during dire curred examination of voir appeal by merely claiming sal on error bring panel to jury he was unable which during dire occurred voir examination. of appellate in record because forward court order the refusal of the trial to statute makes it for the reporter the voir dire exami court to take reporter court to record the dire ex- voir Mor from nation. Cases which emanated upon amination request. The dire ex- voir State, (Tex.Cr.App. ris S.W.2d 730 v. part amination of a the veniremen is vital holding. support of the 1967), were cited in of the trial. judges dissenting in which two A A denial to request of a take same is not joined was filed. only mandatory provision a violation of the court-appointed Although appellant’s V.A.C.C.P., of Article which allege in the motion trial counsel did not may very in a the de- well result denial of appel- new trial otherwise that for right by fendant’s an review of his case of way by in the trial any lant was harmed court, appellate for but also an invitation court-appointed action, appellant’s court’s “sand-bag” the defendant the trial court finding court’s appeal, on counsel supra.1 in under holding Vines v. dire examination fusal to have voir urges record, vigorously recording proceedings all the in a in of recorded holding appellate oppor- of the rehearing trial affords the court an a reconsideration contending this tunity supra, de- fairly review the case for the v. in Morris Further, prejudicial adopt presumed fendant and the State. should a interpretation given of the ve- course voir examination of adopt spokesman more 1. This Court same writer was now have this urged recog rule, State, supra. dissent. as Court I rational Vines v. nize the in that decision and would Ann.C.C.P., porter shall take short-hand notes all 40.09 of Vernon’s § reads, trial part, proceedings. (Emphasis . .” follows: supplied.) 489 at 892. request party
“At the court of either reporter notes of all shall take shorthand Those who have failed to make the ex- proceedings, including voir dire necessary request rely upon must then for amination . .” exception, mal bills agreed of statement provoked rehearing The motion facts, permissible or other methods of opinion by dissenting another one bringing any forward claimed errors oc original dissenters, may and it be well to curring during the voir dire examination. proposition urged. re-examine the State, supra, In Morris v. there was a supra, first case Morris timely request, and a refusal the trial interpret supra, 40.09 § court, and this court was confronted with for the regard to trial court refusal question of whether such refusal con- to take the voir dire exami- per stituted reversible error se there where enacted in nation after the statute was that, showing was no as a result action, trial court’s the accused was de-
prived exception informal bills of reading the statute It is clear from during reserved voir dire examination nor play into that it does come any claim, contention, suggestion made request. Failure to absence of anything occurred the voir dire take the dire ex the court examination to the detriment of the ac- panel amination of the constitutes cused. there basis for reversal.
waiver and
is no
In holding that there
but no
was error
Taylor
(Tex.Cr.
reversible error
absence of an assertion
App.1973);
Jackson
specific ground
prejudice,
aof
(Tex.Cr.App.1973);
Garrett v.
*6
relied,
part, upon
Strauss v. United
(Tex.Cr.App.1968),
142
cert.
434 S.W.2d
States,
(1963),
We convinced of the soundness “Said [Arti- of the 40.09, Morris decision and adhere cle thereto. is not Section V.A.C.C.P.] mandatory.”
Appellant’s rehearing motion for is over- Now, ruled. the In case at bar. to addition Judge dissenting opinion origi- Roberts’ on submission, joined, nal in this writer which ROBERTS, Judge (concurring and dis- myself I will address further on the refus- senting) . al of the trial court to order re- fully agree Judge I Odom’s dissent- porter record questions and answers ing opinion and would further add that I propounded why cannot majority understand the cannot examination. simple realize fact the that the doctrine of submission, majority, original The application stare decisis has no where the State, Tex.Cr.App., relying on Miller v. clearly wrong past. court has been the that the failure to held Supreme Court of the United States mandatory requirements with the prior clearly that where demonstrated 40.09, 4, V.A.C.C.P., of Sec. is overturned, be it decisions need to is the showing error of harm reversible absent duty obligation and of highest appellate the re- case at bar such prejudice. apply court to refuse to the doctrine. See ap- quirement places an undue burden on Illinois, 478, 84 Escobeda v. 378 U.S. S.Ct. pellant’s counsel he was not because 1758, 12 (1964) L.Ed.2d 977 and Gideon same counsel trial. Wainwright, 372 U.S. 83 S.Ct. got I submit that this off track (1963). L.Ed.2d Court has an This State, Tex.Cr.App., Morris v. equal obligation. provisions Ar- when the physics science of used teach that 4, supra, not re- ticle were piece an atom smallest matter then, con- quired. Even the court showed split. and could not be Hiroshima Since noncompliance by stating: “This cern for Nagasaki, and we know better now made by is far the most serious contention ject that doctrine. Then, by appellant.” the court went
I would reverse and remand. permit noncompliance with the stat- on to by stating:
ute ODOM, (dissenting). Judge specified having no error “The of the of facts to which statement opinion majority The writer of over- relevant, examination would be voir dire rehearing ruling appellant’s motion particular circumstances given us, have ever simply stated: “If I tells case, we of the cannot conclude it, change wrong, I’ll never right said failing to or- judge And, saying: old my since “the mind.” ” the en- reporter to record der the court disease,’ is ‘The is worse than the cure is reversible voir dire examination tire jurisprudence of this part now entirely different An error. note, state, ma- interesting it appel- if the presented been would out, points only five jority specified prejudicial lant had reversed) would less the three (eight cases dire examination conduct the voir issue here dis- involved have been virtue was not recorded price pay for so vital (a cussed small unable he was and which court’s order Further, as accused). Judge right of an sit- such on review. bring forward error” Vines v. recognized “the Roberts appraise unable to uation, we would *9 State, Tex.Cr.App., I too 479 S.W.2d called error, and would be alleged State, Taylor v. recognize reverse.” upon to I 489 wherein Tex.Cr.App., S.W.2d
575 expresses its course, showing in Morris there was no “The statute Of unambiguous and lan- appeal purpose plain was different that the counsel on counsel, ob- meaning its is clear and guage the situation and than trial is Nevertheless, application brings went If its about the court vious. instant case. the one unseeming result in cases such as say: on to bar, then, this, is a matter addressed at opin- imply by mean this do not “We legislature. to the sound discretion of court’s re- any approval the trial ion this court to set It is not the function of the re- completely comply with fusal to legislature aside the clear intent of 40.09, Section quirements of opinions this statute our redraft at . . .”411 S.W.2d V.A.C.C.P., to suit members of this court.” page 735. Also, it is for this writer to un- difficult later, now, requires strict years why there are trial derstand this court And six compliance parts re comply with the with the other of this judges that refuse mandatory of this quirements spite article statute but refuses to do so such warning. E.g., part of the first sentence court’s continuous isolated Jackson “ 155; Tay State, thereunder, including . Tex.Cr.App., v. 491 to-wit: . . S.W.2d ” 890; State, Tex.Cr.App., lor 489 voir dire examinations . v. S.W.2d State, Tex.Cr.App., Young (40.09, 488 S.W.2d first sentence of the Article v. State, 92; Tex.Cr.App., v. 479 S.W. reads: Vines V.A.C.C.P.) 322; State, supra; v. 2d Miller v. McClain party “At the of either the court State, 73; Tex.Cr.App., 432 Evans S.W.2d reporter shall take shorthand notes of 502; Tex.Cr.App., State, v. S.W.2d proceedings, including the trial voir dire State, Tex.Cr.App., v. 418 S.W. Williams examination, objections to the court’s 2d 837. charge, arguments.” and final is difficult for this writer to under mandatory If same is as to trial why the enforce majority stand refuse to proceedings,1 objections court’s mandatory or, least, they statute if charge,2 why arguments,3 and final then thereof, agree application do with not voir dire examination? legislature. call it to the attention of State, Tex.Cr.App., In Moore v. 363 S. procedure has been utilized when Such 477,4 requested the defendant W.2d other statutes concerned troublesome require to take See, State, e.g., Beaty Tex. court. v. arguments the final and this court wrote: State, Cr.App., 284; Rangel v. S.W.2d 858; Elder v. Tex.Cr.App., 464 S.W.2d undisputed appellant’s requests “It is State, Tex.Cr.App., 462 6. S.W.2d timely properly made, that the were official court refused to observe court, State, supra, this In Elder v. statute, provisions Onion, through Presiding Judge speaking require her judge and that the refused to stated: it. State, Tex.Cr.App., State, Tex.Cr.App., 1. Parker v. S. 3. Cf. Moore v. 363 S.W. 853; Hartgraves W.2d App., Tex.Cr. 2d 477. 888; Pierson v. 374 S.W.2d majority’s 4. that Moore was assertion 975; Na 147 Tex.Cr.R. “clearly distinguished” Morris varro v. Tex.Cr.R. without a difference. Aren’t distinction S.W.2d 1081. right just allowing an we accused a vital denying V.A.C.C.P.; Taylor
2. it at at one end of the trial and Cf. Tex.Cr.App., 890; the other end? S.W.2d Tex.Cr.App., Jones v. 833; Tex.Cr.App., Woods *10 appellant concluded com- plied with the statute and been de-
prived expressly given of a right him
the statute under the record here presented it (Em- calls for a reversal.”
phasis supplied.)
Compliance with the statute is diffi- cult. transcription is of crucial im-
portance to an to this court meaningful review. legislature
The clear intent should not be set aside to suit members of this
court. vigorously
I dissent. Dwight Douglas and David LEONARD Appellants, Turner, Texas, Appellee. STATE Nos. Appeals of Texas. of Criminal Court July 11, 1973. Butts, Semaan, San Butts &
Fred A. Antonio, appellants. Arm- Butler, Atty., V.
Ted Dist. Gordon Woods, Dist. Asst. D. strong and Richard Vollers, Antonio, D. Attys., San Jim Huttash, Asst. Robert A. Atty., and State’s Austin, for Atty., the State. State’s OPINION DALLY, Commissioner. possession for the are The convictions ap- for each punishment marihuana; probat- imprisonment, pellant, years three ed. notes supra, held that shorthand Balch v. this Court ” examination. describing cluding dire voir and search warrant affidavit voir porter shorthand notes of the take State relies on Miller v. Tex.Cr.App., urging examination. appellant’s court’s refusal re- prior appellant, reflects record quest to order record reporter the court writing to trial, requested dire examination is reversible voir not reporter record order the court State, supra, Miller v. the de- error. propounded to questions answers request fendant’s that the court voir dire examination. jury during take the voir dire was denied. examination This Court noted that there was relies on Appellant suggestion anything on voir occurred V.A.C.C.P., pertinent portion dire to detriment of said provides: party “At the of either preju- a showing that absent of harm or shall shorthand take dice, appellant’s failure to proceedings including notes of all