author: KEASLER, J., KELLER, P.J., COCHRAN, J.,

text:
    Lydia H. BOWEN, Appellant, v. The STATE of Texas.
    No. PD-1873-03.
    Court of Criminal Appeals of Texas.
    May 4, 2005.
    Samuel C. Bishop, Decatur, for Appellant.
    Gregory P. Lowery, County Atty., Thomas J. Aaberg, Asst. County Atty., Decatur, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court in which

MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, and HOLCOMB, JJ.,

joined.

Upon the close of evidence at her resisting arrest trial, Lydia Bowen sought a jury instruction on the defense of necessity. The trial judge refused this request. Affirming the trial judge’s refusal, the Court of Appeals held that the self-defense statute, Penal Code section 9.31, demonstrated a legislative purpose to exclude the necessity defense under section 9.22(3). We disagree. Therefore, we reverse and remand.

Factual and Procedural History

Responding to a disturbance call with an advisory of possible weapons present, Deputy Hamilton arrived at Lydia Bowen’s rural home finding Bowen outside and becoming increasingly agitated and belligerent. Hamilton testified that Bowen’s aggression became focused on him. After performing a field-sobriety test on Bowen, he informed both Bowen and her husband that he was arresting them for disorderly conduct and public intoxication. Hamilton further testified at trial that Bowen attempted to pull her arm away and head toward her house when Hamilton was placing the handcuffs on her. With the assistance of other officers, Hamilton took Bowen to the ground in order to effect the restraint and to allow Bowen to calm down. Once Bowen said that she would cooperate, Hamilton helped Bowen up from the ground and escorted her to his patrol car, where she again resisted. According to Hamilton, Bowen became belligerent, cursed, screamed, and ultimately kicked him in the shin.

Bowen’s factual account differs. Bowen testified at trial that Hamilton kicked out her legs in executing the takedown, causing her terrible pain. According to Bowen, with the help of other officers, Hamilton forced her face into the ground and pinned her with his knees. Bowen admitted to struggling because she could not breathe. She also stated she screamed for help and that she was hurt. After restraining her, Bowen further testified that the officers lifted her directly from the ground to her feet using only the handcuffs and her forearms. Bowen felt that her “arm had popped out of the socket” as a result of being raised in that manner. Although admitting to kicking the officer, Bowen contested that it occurred while she was being lifted from the ground, not when being placed in the patrol car. She also contested that the kicking was intended to prevent Hamilton from taking her into custody. She alleged that the kicking was in response to the pain of being lifted in this manner and attempting to regain her balance.

Bowen was charged with resisting arrest, search, or transportation by using force against a peace officer. At the close of evidence, Bowen sought a jury instruction on self-defense and the justification defense of necessity. The trial judge refused to submit the necessity instruction, but did submit the instruction on self-defense. After a jury found Bowen guilty as charged, she was sentenced to pay a fine of $500.

Court of Appeals

The Court of Appeals first found that Bowen had sufficiently admitted the commission of the alleged offense to entitle her to the justification defense instruction. However, the court held that a legislative purpose existed to exclude the defense under the facts of this case. The court held that Penal Code section 9.31, stating that the use of force against another is not justified “to resist an arrest or search that the actor knows is being made by a peace officer ... even though the arrest or search is unlawful,” provides legislative support to exclude the availability of a necessity defense. The court concluded that because there was no question surrounding whether Bowen was being arrested or that she knew Hamilton was a peace officer, section 9.31(b) precluded the defense of necessity as justification for the resisting arrest offense. The Court of Appeals held that the trial judge properly refused to submit Bowen’s necessity defense instruction. In light of this holding, we granted Bowen’s petition for discretionary review.

Analysis

Penal Code section 9.22 states:

Conduct is justified if:
(1) the actor reasonably believed the conduct is necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

The State argues that the Court of Appeals properly restricted the necessity defense’s application and invites this Court to restrict the availability of the necessity defense according to the circumstances presented in each case. The State suggests the proper analysis begins with the underlying charged offense of resisting arrest defined by section 38.03. The argument continues that the use of force in resisting an arrest is limited by section 9.31, which provides in part:

The use of force to resist an arrest or search is not justified:
(2) to resist an arrest or search that the actor knows is being made by a peace officer ... even though the arrest or search is unlawful, unless the resistance is lawful under Subsection (c);
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer ... uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s ... use or attempted use of greater force than necessary.

The State contends that “since § 9.31(c) restricts resisting arrest to an officer’s abuse of force then it must restrict resisting arrest, as a whole. And since the underlying offense in this case is resisting arrest then § 9.22 is restricted by § 9.31 as well.” However, precedent and proper statutory construction prevent us from taking such a restrictive view of the necessity justification. This Court has had several opportunities to interpret section 9.22(3) since its enactment in 1973. In each case, we looked to the language of the charged offense to determine whether a legislative purpose plainly excludes the necessity justification.

In Vasquez v. State, we looked to the charged offense’s statutory language. There, we referred to the offense’s statute and held that “[tjhe legislature has not excluded the justification of necessity as a defense to the offense of possession of a firearm by a felon.” Without a recitation of the facts, in Johnson v. State we held that a necessity defense is available in a prosecution for an unlawful carrying of a weapon offense under section 46.02. Overruling Roy v. State, we disavowed the notion that permitting the defense of necessity would violate the intent of an offense’s statute and was, therefore, tantamount to a legislative purpose to exclude the defense.

Most recently, in Spakes v. State, we again utilized a plain-language interpretation of section 9.22 and the statute defining the charged offense. In determining whether Spakes was entitled to a necessity instruction on his escape charge, we refused to hold that an attempt to surrender once the immediate threat justifying the escape has ceased is a predicate for a necessity instruction’s submission. After noting the statutory elements of escape defined under section 38.07, we held that there was no apparent legislative purpose to exclude the justification. We further noted that “[t]he plain language codifying the necessity defense evinces a legislative intent that the defense apply to all offenses unless the legislature has specifically excluded it from them.” While the State in Spakes raised valid arguments as to why the necessity defense should be limited, these arguments were appropriate for the legislature, not the judiciary. We now turn to the statutory language presented in this case.

We begin by noting section 9.22’s plain language indicates that the defense of necessity may be applicable in every case unless specifically excluded by the legislature. To determine whether a legislative purpose exists to exclude the defense, we focus on the statute defining the charged offense. Section 38.03 defines the offense of resisting arrest:

(a)A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
(c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.

Section 38.03 does not limit the necessity defense’s application because a legislative purpose to exclude the defense does not plainly appear in its text. On its face, we cannot glean any clear legislative purpose indicating that the necessity defense is not available.

The State’s argument that the necessity defense’s availability must be viewed in light of section 9.31 must also fail because it ignores that necessity and self-defense are separate defenses. The State attempts to link the two defense statutes together by Bowen’s use of force. However, Bowen’s conduct does not merge the two defense provisions into a single, unified defense. While Bowen’s use of force may limit her ability to invoke self-defense, it does not exclude a necessity defense to a resisting arrest offense as a matter of law. We have recognized the independence of separate defenses by holding that a defendant is entitled to the submission of every defensive issue raised by the evidence, even if the defense may be inconsistent with other defenses. We reaffirm this principle by holding self-defense’s statutorily imposed restrictions do not foreclose necessity’s availability.

The Court of Appeals and the State seize upon the issue of whether Bowen knew she was being placed under arrest as a dispositive factor in assessing necessity’s availability. But this reasoning assumes that the necessity defense is controlled by the self-defense statute’s provisions addressing the use of force. Because we have held otherwise, Bowen’s knowledge that she was being placed under arrest is irrelevant to determine whether she was entitled to a necessity instruction as a matter of law.

Conclusion

Because the Court of Appeals held that Bowen sufficiently admitted to committing the offense and raised a necessity issue at trial, Bowen has satisfied the judicially imposed prerequisite to request a necessity instruction. Therefore, the trial court erred in refusing Bowen’s requested necessity instruction. We reverse and remand this case to the Court of Appeals for proceedings consistent with this opinion.

KELLER, P.J., filed a dissenting opinion.

COCHRAN, J., filed a dissenting opinion.

KELLER, P.J.,

dissenting.

By its nature, the “necessity” defense is a catch-all provision designed to afford a defense in situations where a defense is clearly warranted but is not afforded by any other statutory provision. I would hold that a necessity defense is not raised if the evidence presented merely raises an issue under another statutory defense. Otherwise, entitlement to an instruction for certain defenses such as self-defense and defense of a third person would always also entail entitlement to an instruction on the defense of necessity. Submitting wholly redundant defenses would not aid the truth-finding function of the trial and risks confusing the jury.

A corollary of excluding the defense of necessity when it is wholly redundant of another defense is that the defense of necessity should be excluded when it is based solely upon less evidence than required for raising another defense. One of the elements of the defense of necessity is that “a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.” Each defense to criminal prosecution contains the elements it does because the Legislature deemed it appropriate to require certain circumstances to be present before a defense could be invoked. Permitting the necessity defense solely upon less evidence than needed to raise another defense amounts to circumventing these legislatively prescribed requirements. Rather, in comparing the defense of necessity to another potentially applicable defense, the evidence should raise at least one circumstance of mitigating character that cannot be given full effect within the elements of that other defense.

Turning to the present case, we see that appellant received an instruction on self-defense. In the resisting arrest context, the self-defense statute requires among other things a showing that, before the actor offered any resistance, the officer used or attempted to use “greater force than necessary to make the arrest” and the actor reasonably believed her response was immediately necessary to protect herself against that type of force. All of appellant’s evidence regarding the violent nature of the arrest and the pain caused as a result could be given full effect in the context of that self-defense requirement. The evidence did not, for example, show that appellant had some peculiar infirmity or condition, unknown to the officer, that would have made the officer’s reasonable conduct a threat to appellant’s safety. Under the circumstances, appellant’s evidence raised nothing more than the issue of self-defense to the use of unnecessary force. Consequently, the trial court did not err in declining to give an instruction on the defense of necessity.

COCHRAN, J.,

dissenting.

I agree with the majority that the statutory defenses of self-defense under Texas Penal Code, section 9.31, and necessity under section 9.22 are not mutually exclusive in the context of a resisting arrest prosecution. However, I do not think that the court of appeals said that they were. Rather, both the trial court and the court of appeals stated that given the specific evidence in this particular case, appellant’s defense was wholly encompassed by the trial court’s instructions on self-defense. I agree with that conclusion and therefore respectfully disagree with the majority’s holding.

In this case, the evidence concerning precisely how Officer Hamilton arrested appellant was hotly contested. In deciding whether the trial court erred in submitting instructions on a statutory defense, courts look to whether there is any evidence that raises all of the elements of that defense. Thus, we look only to the evidence that supports submission of instructions on self-defense and necessity.

Appellant testified that she knew Officer Hamilton was attempting to arrest her, but she also testified that

* Officer Hamilton, in doing so, “kicked out her legs” when he executed a “takedown”; then he pushed her face into the dirt;
* She had not used any force against him before he kicked her legs out from under her;
* His kicking her legs and forcing her into the dirt caused her great pain;
* She struggled because she could not breathe with her face in the dirt;
* Officer Hamilton (and another officer) then lifted her up from the ground holding only the handcuffs and her forearms;
* The officers’ use of force in lifting her up in this manner made her arm pop out of the socket;
⅜ She kicked at Officer Hamilton to make him stop lifting her up and holding her in this painful manner.

The thrust of all of appellant’s testimony was that she did not use any force against Officer Hamilton until he used unnecessary, excessive, and very painful force against her. He started it by using unreasonable physical force to effect her arrest and she reacted only to protect herself. This testimony clearly raises an issue of self-defense under subsection 9.31(c). Section 9.31(b), however, explicitly states that

The use of force against another is not justified ... to resist an arrest or search that the actor knows is being made by a police officer, ... unless the resistance is justified under Subsection (c).

Thus, the legislature has, in no uncertain terms, stated that one is not justified in using force to resist an arrest unless the “resistance” is justified under subsection (c). Subsection (c) is the section appellant invoked with her testimony and that is the section under which the able trial judge instructed the jury.

Both the trial judge and the court of appeals were very careful to limit their denial of a necessity instruction because of appellant’s specific testimony. The court of appeals noted that

the trial court stated that [it] did not feel that the facts of the case raised the defense of necessity and that self-defense was the appropriate defensive submission under the evidence involving force against a police officer.

The court of appeals upheld the trial court’s assessment of the evidence and stated that it did “not believe that this admission [that she kicked the officer without intent to resist arrest] entitles her to submission of the necessity defense under the facts of this case.”

Appellant’s position — with which the majority agrees — is that “I used force against Officer Hamilton’s use of excessive force not to resist arrest, but simply to stop the pain. Therefore, I am entitled to an instruction on necessity.” This argument proves too much. “Stopping the pain” or “preventing the injury” from the officer’s use of excessive force is the very purpose of the statutory justification of self-defense to resisting arrest. As the court of appeals aptly noted,

Accepting Appellant’s argument would allow any person to obtain submission of a necessity defense based upon a struggle involving use of force against a police officer when that person knows they are being placed under arrest, by later claiming he or she was only trying to avoid being hurt.

That is precisely the practical, though perhaps unintended, effect of the majority’s holding in this case. And it is precisely for that reason that I cannot agree with the majority. The Legislature explicitly rejected this position by enacting subsection 9.31(b) which specifically precludes any justification for the use of force in resisting arrest except that justification set out in subsection 9.31(c).

Necessity, on the other hand, is a “choice of evils” defense. The defendant intentionally or knowingly commits a criminal offense to avoid a greater evil or greater harm. To invoke such a defense, “the pressure must operate upon the mind of the defendant rather than upon his body.” The rationale behind this defense is that “the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.”

That said, when might a necessity defense apply to a prosecution for resisting arrest? When the defendant intentionally and knowingly resists arrest because he has a higher public duty to perform which cannot be performed if he is arrested: the defendant must stop the passenger-laden train ¡from crashing into the rock on the track; he must save the children from drowning on a raft that is floating down the swollen river; he must get his wife to the hospital before she has their first child in the backseat of the car; and so forth. In other words, the necessity is a harm that is separate and independent from the use of force to resist arrest and “the desirability and urgency of avoiding the harm [the train wreck, the drowning, the backseat delivery] clearly outweigh ... the harm sought to be prevented by the law [resisting arrest] proscribing the conduct.”

As Professor LaFave points out

The defenses of self-defense and defense of others are also related to the defense of necessity, justifying intentional homicide or the intentional infliction of bodily injury in cases where it is necessary to save the life of, or to prevent injury to, the defendant or another. It has been said that self-defense and defense of others constitute a part of the law of necessity which has attained relatively fixed rules.

That is, the statutory defense of self-defense is a codification of a subset of the necessity defense and permits the use of force against another under whatever specific circumstances are set out by the legislature. The Texas Legislature has specified the circumstances under which one may intentionally use force to resist arrest in subsection 9.31(c). And, in subsection 9.31(b), it has explicitly limited the intentional use of force to resist an arrest to only those circumstances set out in subsection (c).

Given these statutory provisions and the evidence in this case, I must agree with the trial court and court of appeals which both held that appellant was not entitled to a separate instruction on the defense of necessity. I, therefore, respectfully dissent.

      . Bowen v. State, 117 S.W.3d 291, 297 (Tex.App.-Fort Worth 2003).

      . Id. at 298.

      . Tex. Pen.Code Ann. § 9.22 (Vernon 2004).

      . Tex. Pen.Code Ann. § 9.31(b) — (c) (Vernon 2004).

      . 830 S.W.2d 948 (Tex.Crim.App.1992).

      . Vasquez, 830 S.W.2d at 950 (citing Texas Penal Code § 46.05).

      . Johnson v. State, 650 S.W.2d 414, 416 (Tex.Crim.App.1983), overruled on other grounds, Boget v. State, 74 S.W.3d 23 (Tex.Crim.App.2002).

      . 552 S.W.2d 827 (Tex.Crim.App.1977).

      . Johnson, 650 S.W.2d at 416.

      . Spakes v. State, 913 S.W.2d 597 (Tex.Crim.App.1996).

      . Id. at 598.

      . Id.

      . Id.

      . Tex. Pen.Code Ann. § 38.03 (Vernon 2004).

      . See Boget, 74 S.W.3d at 31; see also Johnson v. State, 650 S.W.2d 414, 416 (Tex.Crim.App.1983).

      . Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996); Thomas v. State, 678 S.W.2d 82, 84 (Tex.Crim.App.1984).

      . See Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App.1999).

      . Tex. Pen.Code § 9.22(3).

      . Tex. Pen.Code § 9.31(c):
      The use of force to resist an arrest or search is justified:
      (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
      (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

      . See Bowen v. State, 117 S.W.3d 291, 295 (Tex.App.-Fort Worth 2003).

      . Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984) (trial court erred in failing to submit requested charge on defense of necessity). In Thomas, this Court set out the general statement of the law:
      It is axiomatic that a defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unim-peached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief.

        Id. at 84.

      . Subsection 9.31(c) of the Texas Penal Code provides
      The use of force to resist an arrest or search is justified:
      (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
      (2) when and to the degree the actor reasonably believes that force is immediately necessary to protect himself against the peace officer's (or other person’s) use or attempted use of greater force than necessary.

      . 117 S.W.3d at 295.

      . Id. at 297.

      . Appellant also makes a compelling argument concerning the "eggshell” defendant who resists the use of perfectly reasonable, non-excessive force by the police officer because this reasonable force causes this particular defendant great pain although it would not cause a person of ordinary physical fitness pain. She claims that the defense of necessity exists for this situation. It does not. In that situation, the defendant is simply not guilty of a crime because she is not "intentionally” preventing a peace officer from effecting an arrest by using force against the officer. For example, appellant might have testified that Officer Hamilton was using perfectly reasonable force in pulling her arms behind her back to handcuff her. She, however, has horrible bursitis and the mere touching of her arm sent her into paroxysms of pain. She reacted instinctively against this excruciating pain by pulling away, kicking out, thrashing about, spitting, or whatever. This is not conduct that is intended to prevent her arrest, it is “pain avoidance” conduct which denies an element of the offense: the intent to prevent or obstruct the officer from effecting an arrest. For this defense, one needs no special jury instruction because it is the denial of an element of the crime, not the "confession and avoidance” of an element of the crime. Appellant did not testify that she was an "eggshell” defendant or that Officer Hamilton used only reasonable force. But to the extent that her testimony indicated that her conduct was motivated only by "pain avoidance,” not an intent to prevent her arrest, she is still simply denying one of the State's essential elements using force with the intent to prevent or obstruct her arrest.

      . Id. at 296-97.

      . See generally, Wayne R. LaFave, Substantive Criminal Law § 10.1 (2d ed.2003).

      . Id., § 10.1(a), at 117.

      . Id. at 118.

      . Professor LaFave sets out numerous examples of the appropriate invocation of the "choice of evils” necessity defense. LaFave, § 10.1(c), at 121-24.

      . Tex. Pen.Code § 9.22(2).

      . Id., § 10.1(c) at 121. Professor LaFave notes that “when the provision in the criminal code 'deals specifically and comprehensively with the use of force in defense of self, third persons, and premises,' a defendant ‘who is unable to present an effective defense under these specific provisions is precluded from justifying his use of force under the general provision for competing harms.’ ” Id. n. 24 (quoting State v. Crocker, 506 A.2d 209 (Me.1986)).


source: Caselaw Access Project

author: KELLER, P.J.,

license: Public Domain

text:
    Danny Paul BIBLE, Appellant, v. The STATE of Texas.
    No. AP-74713.
    Court of Criminal Appeals of Texas.
    May 4, 2005.

      Allen C. Isbell, Houston, for Appellant.

      Alan Curry, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KELLER, P.J.,

delivered the opinion of the Court in which

MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ.,

joined.

Appellant was convicted in June 2003 of a capital murder committed in May 1979. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.0711 §§ 3(b) and 3(e), the trial judge sentenced appellant to death. Direct appeal to this Court is automatic. Appellant raises fourteen points of error and two supplemental points of error. We shall affirm.

I. CONFESSION

A. Admissibility

1. The parties’ contentions

In points of error one through four, argued together, appellant contends that four tape-recorded statements obtained in Louisiana were admitted into evidence in violation of Article 38.22. Specifically, he contends that Louisiana law enforcement officers failed to give some of the warnings required by the statute. Appellant contends that the warnings were deficient because they specified that his statements could be used against him in “court” but did not specify that the statements could be used against him at “trial.” During oral argument, defense counsel also contended that, while the Louisiana warnings explained the accused’s right to have counsel present during questioning, they did not explain that the defendant also had a right to consult an attorney “prior to” questioning. Appellant further argues that the set of warnings given in connection with one of the recorded statements (State’s Exhibit 4) was even more deficient, omitting several other warnings required by the statute.

Relying upon Davidson v. State, appellant argues that Texas law applies to these statements taken in Louisiana and, therefore, they should have been excluded. Appellant points out that, although the Legislature amended the law to supersede Davidson, the amendment applied only to statements taken after September 1, 2001, and therefore, does not apply to the present case.

In two supplemental points of error, appellant contends that State’s Exhibit 4 was also inadmissible under Louisiana law because the recording for that statement did not contain all the warnings required by Miranda v. Arizona.

Although appellant states early in his discussion that “[t]hese tape recorded statements constituted the most incriminating evidence at the guilt phase of trial and at the punishment phase,” he presents a harm analysis with regard to only three of the four statements, omitting any discussion of harm as to the recorded confession to the primary offense. Appellant concludes the discussion of both his original and his supplemental points with a request to remand the case for a new punishment hearing.

The State argues that the warnings given in Louisiana were the “fully effective equivalent” of the warnings required by Article 38.22. The State contends in the alternative that the admissibility of the recorded statements should be governed by Louisiana law and that Davidson should not be applied to the circumstances of the present case.

2. Background

On May 27, 1979, the partially clad body of Inez Deaton was discovered in a field in Houston. She had been sexually assaulted and murdered. The case remained unsolved until December 18, 1998, when appellant confessed to a detective in Louisiana that he had committed this offense. The circumstance that led to appellant’s confession was his arrest in West Baton Rouge Parish in Louisiana for an aggravated rape. On December 16, 1998, Detective Randall Walker, of the West Baton Rouge Parish Sheriffs Office, questioned appellant about the Louisiana offense. Appellant gave a tape-recorded statement confessing to that offense (State’s Exhibit 2).

The next two tape-recorded statements were obtained on December 18, pursuant to questioning by Detective Walker and Louisiana Trooper Joe Whitmore. Both officers were present during interrogation throughout the day, but Detective Walker conducted the questioning in the morning and during the first tape-recorded session while Trooper Whitmore asked questions during the second tape-recorded session. The morning (unrecorded) session of the interview began at 9:50 a.m. The first tape-recorded session began at 1:40 p.m. and resulted in a tape-recorded confession to the present offense, the aggravated rape and murder of Deaton (State’s Exhibit 3A). The second tape-recorded session began sometime in the afternoon, probably no later than 4:10 p.m. and perhaps earlier, and resulted in a tape-recorded confession to the murders of three people in Palo Pinto County (State’s Exhibit 4). The last tape-recorded statement that is the subject of appellant’s complaints was made on January 6, 1999, and contained confessions to numerous aggravated sexual assault offenses against appellant’s five young nieces in San Jacinto County (State’s Exhibit 5).

Before each of the interviews during which the tape-recorded statements were obtained, the following form from the West Baton Rouge Parish Sheriffs office was read to appellant:

Warning:
Before you can be questioned concerning the alleged offense(s), you must understand and waive your constitutional rights. If you do not understand them, or do not waive them, you cannot be asked any questions concerning the offense(s).
1. You have the right to remain silent.
2. If you give up the right to remain silent:
A) Anything you say can and will be used against you in court.
B) You have the right to get advice from a lawyer and to have a lawyer with you during your interview.
C) If you want a lawyer and cannot afford one, the court will appoint one to assist you without charge.
D) If you decide to answer questions now, without consulting with a lawyer and without having one present, you may stop the interview at any time.
3.You have the right to face your ae-cuser(s) in court.
Consent to speak:
I have read this statement of my rights, or had it read to me, and I understand what it says. I am willing to answer questions now without talking to a lawyer first, and without having one present. No promises have been made to me, and no threats have been made against me.

Each day that appellant participated in an interview, he signed a copy of this form after it was read to him for the first time that day. Some days, he signed a separate copy for multiple interviews, but only one copy was signed on December 18.

The warnings on the form also appear verbatim on the recordings in State’s Exhibits 2, 3A, and 5. On the recordings, after each individual warning (right to remain silent, used against you, right to a lawyer, etc.), appellant was asked if he understood the particular warning, and he replied affirmatively. Appellant also was asked during each recording whether the waiver (consent to speak) paragraph was accurate, and appellant replied that it was.

State’s Exhibit 4 does not contain these warnings verbatim. Instead, the recording contains a reminder from Trooper Whitmore that appellant had been given the West Baton Rouge Parish Sheriff’s form and that this form basically advised appellant of his constitutional. rights. Trooper Whitmore then reminded appellant that he had read the form, had said that he understood it and had signed it, that Whitmore and Walker had witnessed those actions, and that “basically, what it [the form] says is that you’re voluntarily talking to us, is that correct?” Appellant replied affirmatively. Trooper Whitmore then stated that he was “not going to go through the entire form.” Instead he asked, “Do you still agree to voluntarily talk to us?” Again, appellant replied affirmatively. Trooper Whitmore then gave the following warnings in question format, to each of which appellant replied affirmatively:

And you do understand that you don’t have to talk to us?
And you do understand that in the course of talking to us if you decide to stop talking to us at any time that you have the right to do that?
You also understand that you have the right to have an attorney present here while we’re talking to you?

At the conclusion of those warning questions and appellant’s responses, Trooper Whitmore asked, “And you’ve agreed to continue to talk to us, voluntarily, of your own free will?” Again, appellant answered in the affirmative.

In its findings of fact and conclusions of law, the trial court found that appellant was in custody, that he was read Miranda warnings each and every time officers took a taped statement from him, that appellant freely and voluntarily waived his constitutional rights on each of those occasions, and that no threats or promises were made to appellant in exchange for his statements.

3. Analysis

We need not address the parties’ arguments regarding the choice-of-law issue because we find that the recorded statements are admissible under Article 38.22. Davidson itself recognized that Article 38.22 contained exceptions to its requirement of strict compliance for oral statements but simply noted that the exceptions were not applicable in that case. Under Section 3(e)(2) of the statute, it is sufficient that “the accused was given the warning in Subsection (a) of Section 2 above or its fully effective equivalent.” Therefore, if the warnings given by the Louisiana officers are the “fully effective equivalent” of the warnings outlined in Article 38.22, § 2, then Article 38.22 does not bar admission of the statements.

We addressed the “court” versus “trial” complaint under a previous version of the statute in Bennett v. State. That case involved a Louisiana “used against you” warning almost identical to the one at issue here. Concluding that use of the term “court” instead of “trial” “does not dilute the meaning or import of the warning,” we upheld the admission of the evidence. The version of the statute in effect at the time did not contain subsection (e)’s strict compliance language or subsection (e)(2)’s “fully effective equivalent” exception. Nevertheless, by saying that the use of “court” instead of “trial” did not “dilute the meaning or import of the warning,” we clearly expressed the view that the Louisiana warning was in fact the fully effective equivalent of the one contained in the statute. Although appellant contends that the equivalence of the warnings is negated by the fact that Article 38.22 contains two “used against” warnings, one specifying “court” and the other specifying “trial,” that language was also present in the statute at the time Bennett was decided. The two warnings here appear to largely overlap and, in fact, “court” is the broader term, and is reasonably understood to include the term “trial.”

Moreover, we find that the warnings contained in State’s Exhibits 2, 3A, and 5 also fairly convey the concept that the accused is entitled to consult counsel “prior to” interrogation. The warning says, “You have the right to get advice from a lawyer and to have a lawyer with you during your interview.” The wording of the warning suggests that the accused is entitled to a lawyer’s advice outside of the time during the interview. And the waiver of rights admonition that follows, by specifying that the accused is “willing to answer questions now without talking to a lawyer first, and without having one present,” makes clear that this right to an attorney can be exercised before interrogation.

That leaves State’s Exhibit 4, which, if looked at in isolation, would appear to lack some of the warnings required, not only by Article 38.22, but also by Miranda itself. State’s Exhibit 4 does not contain a “used against” warning, does not contain the language making clear that counsel can be consulted before interrogation, and does not contain the admonition that an attorney can be appointed if the accused cannot afford one. But we disagree with the proposition that State’s Exhibit 4 should be looked at in isolation.

The First Court of Appeals faced a similar situation in Franks v. State. In that case, a tape-recorded interrogation first commenced at 11:53 a.m. and continued until 12:30 p.m. Warnings were given at the beginning of this interrogation. The police officers then interrupted their interrogation and talked to other witnesses. Interrogation resumed that same day at 4:02 p.m. and continued until 4:23 p.m. This latter interrogation was also tape-recorded, but the warnings were not given. However, the defendant was reminded that he had been advised earlier of his constitutional rights, and the defendant acknowledged that he had been so warned. The court of appeals held that “the second phase of the interrogation was merely a continuation of the interrogation process, and that under the circumstances presented, there was not such a ‘break’ in the interrogation proceeding as to require the giving of new warnings.”

Although this Court has not addressed a similar situation with regard to an Article 38.22 claim, we have addressed a somewhat similar fact situation in the Miranda context. In Ex parte Baglay, the defendant was given all the required Miranda warnings before signing a written confession. The officer then returned the defendant to his jail cell and separately questioned the co-defendant. Six to eight hours later, interrogation of the defendant resumed, resulting in another confession. Although appellant was given oral warnings before this second confession, he contended on appeal that the oral warnings did not sufficiently comply with Miranda. Although we held that the oral warnings did in fact comply with Miranda, we also found that the warning given six to eight hours earlier was sufficient to satisfy Miranda’s requirements.

More recently, in Jones v. State, we addressed whether warnings given two days before the complained-of statement were sufficient to satisfy Miranda. Finding that the earlier warnings were not effective, we distinguished Bagley and some out-of-state cases on several grounds: (1) the passage of time, (2) the interrogation was conducted by a different person, (3) the interrogation related to a different offense, and (4) the officer never asked the defendant if he had received any earlier warnings, whether he remembered those warnings, and whether he wished to waive or invoke them.

In the present case, the session that produced State’s Exhibit 4 began less than three hours after the beginning of the session that produced State’s Exhibit 3A. Although different officers conducted questioning during each session and each session focused on a different set of crimes, the same officers were present during both sessions. Trooper Whitmore reminded appellant of his earlier waiver of rights; secured his acknowledgment that he had previously been given warnings; briefly reminded him of his right to silence, to terminate the interview, and to counsel; and secured his assent to continue the interview. Under these circumstances, we find that the two sessions were part of a single interview for the purpose of Article 38.22 and Miranda. But even if they were not considered part of the same interview, we would find that Trooper Whitmore’s conduct under the circumstances was sufficient to constitute the administration of a “fully effective equivalent” to the required warnings and was sufficient to satisfy Miranda. Points of error one through four and appellant’s supplemental points of error are overruled.

B. Jury Instruction

In point of error five, appellant complains about the trial court’s refusal to submit a jury instruction concerning the voluntariness of appellant’s tape-recorded confession to the primary offense given to Texas law enforcement officers (State’s Exhibit 1). Appellant contends that the following testimony from Harris County Detective Roger Wedgeworth raised the issue of whether there was an “implied promise and/or expectation” that appellant would receive only a life sentence rather than the death penalty:

[Direct Examination]
Q. At this point right now tell the jury what it was you said to Danny Bible in regards to this conversation.
A. Well, I told him that I understood what he what [sic] was trying to do. By confessing to us I understood that he was agreeing to come to Texas to confess to this murder, to plea out for a life sentence. He wanted to do his time here in Texas because that’s where his family is. His mother and dad I think is the reason that he gave, as to wanting to come back to Texas.
Q. So, you gave that explanation in the beginning to the defendant?
A. Yes, I did.
Q. Did you make any explanations or try to clear that up with the defendant before you began your interviewing, the details of this murder?
A. Yes, I did.
Q. Tell the jury what you told him?
A. Well, he was 47 years old at the time we talked and I understood that any lengthy prison sentence would be a life sentence for him. He’d spend the rest of his life in jail.
Q. Did you tell him that?
A. I did tell him that, yes.
Q. What else did you tell him?
A. Well, that I understood, you know, what he wanted to do.
Q. And as far as understanding of what it was he wanted, what did you say to him by way of explanation as to whether or not you could make that happen?
A. Oh, I see. We — I explained to him that I couldn’t make any kind of deal for him at all. That any deal that was made would have to go through the district attorney’s office.
[Cross-Examination]
Q. And what you concluded after talking to Detective Walker, and even before you talked to the defendant, was he was trying to get out of Louisiana and go to Texas to serve time and he would serve it on this case; right?
A. That’s — that’s what his goal was, yes, sir.
Q. He would plead for a life sentence on this case?
A. Yes, sir.
Q. And what you told him was, that based on his age any sentence he got would be a life sentence?
A. Yes, sir, that is correct.
Q. Now, you didn’t mean for that to sound like that you were promising him that any sentence he got would be a life sentence, you were referring to his age; right?
A. That’s correct.
Q. But what you told him was, any sentence you get will be a life sentence for you?
A. Well, that — I mean, that’s — I told him that, that is true.
Q. Did any discussion about the death penalty come up while you were questioning him?
A. No.
[Discussion with judge omitted].
Q. Did you tell him, tell the defendant, that in order for him to get to Texas and serve a sentence, he was going to have to confess for the DA to be able to take the charges in the case?
A. Well, I told him that I wasn’t the one that could make any kind of decision, period. And that it was entirely up to the DA. That’s what I told him.
Q. You didn’t tell him anything about he had to confess?
A. I never told him that he had to confess.
Q. Or give a statement? I thought you testified previously that what you told him was that he was going to have to tell you-all first whatever it was he had to tell you?
A. Well, I know exactly what I said back then and that is what I said. But the fact is, whenever we first met with him, we asked him if he would talk with us and he said he would and all that. And I told him that everything would have to go to the district attorney’s office; but, in order for us to show them anything we had to have something from him. That’s basically what I said back then.
Q. Okay. So, you knew he wanted a life sentence. You told him that whatever he got was going to amount to a life sentence for him and for him to get that he was going to have to tell you, he was going to have to talk to you.
A. Well, I told him I knew what he wanted to do. I knew he wanted to go to Texas to be with family, because it is a lot easier to do time with family around. But yes, I told him that.
Q. And the reason I am asking that is none of us can read the defendant’s mind. We don’t know how he actually interpreted what you said. We understand what you meant by what you said, but at issue is what he understood. And you admit that he was making it really clear to you that he wanted to confess because he wanted to go serve his time in Texas?
A. I understood that that’s, in fact, what he wanted to do.

(Emphasis added).

Appellant does not say whether he is relying upon federal or state law, but he cites a discussion in Mendoza v. State that refers to Article 38.21. When evidence from any source raises an issue regarding involuntariness under Article 38.21 and the defendant requests an instruction, Article 38.23 requires that an appropriately worded instruction on the issue be submitted to the jury. This Court has held that a promise can render a confession invalid under Article 38.21 if it is “positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully.” But when the accused acts as an entrepreneur in attempting to negotiate a deal, we will not find implied promises “in official responses [to the accused’s overtures] that are ambiguous at best.” And we will not find that a promise was “made or sanctioned by someone in authority” when the officer conducting the interview makes clear that he has no authority to make deals.

Here, appellant acted as an entrepreneur in attempting to secure a deal for a life sentence in Texas. Although the evidence shows that Detective Wedgeworth did indicate that, because of appellant’s age, any prison sentence would result in incarceration for the rest of appellant’s life, there is no evidence of any promise from Wedgeworth that appellant would receive a life sentence instead of the death penalty. And it is undisputed that Detective Wedgeworth clearly explained that he had no authority to make any deals. Point of error five is overruled.

II. PUNISHMENT COMPLAINTS

A. Legal Sufficiency — Future Dangerousness

In point of error fourteen, appellant contends that the evidence is legally insufficient to support the jury’s answer to the “future dangerousness” special issue. Specifically, appellant contends that, because he had previously been given a life without parole sentence in Louisiana, the only society he would ever interact with would be prison society. He further argues that the evidence shows he is not a threat to prison society because he had only two minor, nonviolent disciplinary infractions during the twelve years he was incarcerated in Texas on another conviction and the State presented no evidence of any disciplinary infractions during his incarceration in Louisiana.

Good behavior in prison does not preclude a finding of future dangerousness. All that is required is that the evidence be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The record of this case is littered with such evidence, specifically, evidence of appellant’s numerous violent offenses. After raping and killing Deaton, appellant fled to Montana and Wyoming, where he developed an abusive relationship with a woman, who finally left appellant because of the constant violence directed toward her. Appellant ground his knee into her ear, punched her in the face so hard that she was required to get stitches, poured gasoline onto her vehicle and set it on fire, and attacked her vehicle with an axe while a three-year-old child was inside.

After that relationship ended, appellant went to Weatherford, where he murdered his sister-in-law Tracy Powers, her infant son Justin Powers, and Tracy’s roommate Pam Hudgins. He then fled back to Montana, where he kidnapped a young woman and an eleven-year-old girl, and he raped the girl. On August 8, 1984, appellant pled guilty to the Pam Hudgins’s murder and was sentenced to twenty-five years in prison. He also pled guilty to two aggravated kidnappings he committed in Montana. He was later placed on parole, and he moved to Texas, where he sexually assaulted his five nieces (children of various ages) numerous times.

Finally, on November 7, 1998, while in Louisiana, appellant compelled Tera Robinson to submit to a sexual assault under threat of death. After the sexual assault, appellant tied Robinson up. She told appellant that her boyfriend was coming home soon and that appellant needed to leave. Before leaving the scene, he tried without success to stuff Robinson into a duffel bag.

Appellant has killed four people, including an infant. He has sexually assaulted numerous others and might have killed his latest victim if he had succeeded in stuffing her into a duffel bag. There was ample evidence from which a rational jury could conclude that appellant posed a future danger to society, whether inside or outside prison. Point of error fourteen is overruled.

B. Extraneous offenses

In points of error six and seven, appellant contends that the portions of his January 6th confession relating to the sexual assault of two of his nieces were improperly admitted because the State failed to present any corroborating evidence that those offenses occurred. He argues that the corpus delicti doctrine requires some evidence independent of the defendant’s confession that these two nieces were in fact sexually assaulted. To put appellant’s claim in perspective, we observe that appellant confessed to sexually molesting and assaulting five nieces. The oldest was K.B., three of the others were her sisters, and one was a cousin. K.B. testified at trial to numerous instances of appellant sexually assaulting her, one of her sisters (S.B., the next oldest), and a cousin, but she had not observed appellant sexually assaulting her two youngest sisters. The only evidence of sexual misconduct with the two youngest sisters came from appellant’s confession.

The corpus delicti doctrine requires that evidence independent of a defendant’s extrajudicial confession show that the “essential nature” of the charged crime was committed by someone. The doctrine was designed to prevent “errors in convictions based upon untrue confessions alone” and “guarded against the shocking spectacle and deleterious effect upon the criminal justice system when a murder victim suddenly reappeared, hale and hearty, after his self-confessed murderer had been tried and exécuted.” Appellant argues that the corpus delicti doctrine should be expanded beyond the charged offense to extraneous offenses offered at the punishment phase of trial. He acknowledges that there are courts of appeals decisions contrary to his position but contends that their pronouncements conflict with the history and purpose of the corpus delicti rule.

We have declined to apply corroboration requirements to extraneous offenses offered at the punishment stage of a capital case in a similar context — the accomplice witness rule. We reasoned that the ae-complice witness rule is concerned with the sufficiency of the evidence to support the conviction rather than the admissibility of evidence at the punishment stage of trial. We explained that even uncorroborated accomplice testimony about the defendant’s extraneous bad acts constitutes “relevant information about a defendant” within the scope of Article 37.071.

We agree with the Waco Court of Appeals that the corpus delicti rule is similar in purpose to the accomplice witness rule. As we have already observed, the corpus delicti doctrine is concerned with preventing a conviction from being based solely upon a false confession. When the offense at issue is extraneous, offered at the punishment stage, no concern about the defendant’s conviction arises. We are not faced with the specter of a totally innocent defendant being convicted for a crime that never occurred solely on the basis of a confession resulting from official coercion or the defendant’s own delusions. Consequently, we hold that the corpus delicti doctrine does not apply to extraneous offenses offered at the punishment phase of a capital murder trial. Points of error six and seven are overruled.

C. Jury Charge

In point of error ten, appellant complains about the trial court’s refusal to submit in the jury charge a definition of the word “deliberately.” We have previously resolved this issue adversely to appellant’s position. Point of error ten is overruled.

D. Argument

1. “Intentionally”

In point of error eleven, appellant contends that the prosecutor gave an erroneous definition of “intentionally” in closing argument at the punishment stage of trial. Appellant quotes the following portion of the record in his brief:

[PROSECUTOR]: And so, we have these issues up here for you to have to deal with. And what’s the first one? Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant that caused the death of the deceased was committed deliberately and with a reasonable expectation that the death of the deceased or another would result? Deliberately, you have heard it defined for you somewhat. You know that it doesn’t mean what you found him guilty of when you said he acted intentionally, because intentionally means (snaps finger) it happened that fast. He decided in that split second to commit that capital murder.
[DEFENSE COUNSEL]: Your Honor, I object. That is a misstatement. Intentionally doesn’t mean that it happened that fast. It means conscious objective or desire.
[THE COURT]: Overruled.
[PROSECUTOR]: So, it doesn’t mean intentionally. That’s true. It also does not mean premeditated, planning, long, drawn-out process like [defense counsel] would have you think it means. Whatever you want it to mean is completely up to you.

It is difficult to see how the prosecutor’s misdefining the term “intentionally” in the punishment phase could have any adverse effect on the defendant since that term was used only at guilt, and the jury had already found him guilty. Appellant’s real argument appears to be that the prosecutor misdefined the term “deliberately,” as revealed by the following sentence in his brief: “In the instant case, the prosecutor urged the jury to define deliberately in a way that makes a deliberate act substantially less than an intentional act.” But appellant did not object to the prosecutor’s comments regarding the term “deliberately,” nor did he complain to the trial court that the prosecutor’s comments regarding the term “intentionally” had in any manner diluted the meaning of “deliberately.” Consequently, appellant failed to preserve error. Moreover, even if error had been preserved, the comment appears to suggest that “deliberately” means more, not less, than “intentionally.” Point of error eleven is overruled.

2. “Deserved to die”

In point of error twelve, appellant contends that the prosecutor engaged in improper argument when she said that appellant “deserved to die.” He asserts that the prosecutor’s argument was a blatant appeal to emotions rather than an argument based on the special issues and violated the law that prohibits the jury from answering the special issues based upon “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” The following passage in the record is relevant to appellant’s claim:

[PROSECUTOR]: Finally, you are on this jury because you believe that there are crimes that have been committed and defendants who exist that deserve the death penalty. Because you appreciate the fact that there is [sic] some people born you just can’t do anything else with. And God only knows why they turn out the way they do or what made them the way they are. None of us are ever going to understand that. But because there are people like that, that’s why we had [sic] the death penalty. And for those kinds of people to deal with those sorts of people our law has crafted these issues to address when it is appropriate and when it is not. The questions are designed to try and make it all a process that we can all deal with. And when you answer these questions you answer them because you know in your heart that some people deserve the death penalty.
[DEFENSE COUNSEL]: Your Honor, she is appealing to them to answer the questions based on what they think is deserved, not on the basis of those questions.
[THE COURT]: Overruled.
[PROSECUTOR]: No, I am not. I am telling you to keep in mind that we have the death penalty for reasons that you-all understand. And if you ask yourself the question. Why do we have the death penalty? And you ask yourself which deserve it and which don’t, do you think anybody deserves it less—
[DEFENSE COUNSEL]: Objection, again, to the argument. They are trying to decide what he deserves rather than answering these three questions.
[THE COURT]: Overruled.
[PROSECUTOR]: — than Danny Bible? How many people do you have to murder to be a future threat to deserve the death penalty? One, two, three, four? How many children do you have to rape to deserve the death penalty, to be a threat? How many women do you have to rape to deserve the death penalty, to be a future threat? How many babies do you have to kill? Danny Bible’s done all those things. There can be no doubt in your mind that the answers to those questions are yes and yes and no, because there is only one place where he belongs. He has left you with no other choice. Sentence him to death.

Article 37.0711 expressly permits the parties to argue “for or against sentence of death.” The prosecutor here did not make an argument based solely on emotion; she related her comments specifically to the special issues. Point of error twelve is overruled.

3. Burden of proof

In point of error thirteen, appellant contends that the prosecutor made a comment in opening argument that improperly shifted the burden of proof on the future dangerousness special issue. The record shows the following:

[PROSECUTOR]: You may hear from the Defense, He was good when he was in the penitentiary. Well, let me tell you something. You don’t find anything but one year’s worth of information that he didn’t do anything wrong, that year from '83 to '84, when he was in the penitentiary. I defy you to find a shred of documents anywhere in evidence that says he is a model prisoner. You won’t find it.
[DEFENSE COUNSEL]: Objection. Your Honor, that argument shifts the burden on the Defense. It is not up to us to prove that he was a good, model prisoner and I object to it.
[THE COURT]: Overruled.

In O’Bryan v. State, we observed, “It is well-settled that the prosecutor, in argument, may comment on the defendant’s failure to call certain witnesses.” We held that this practice did not constitute a shifting of the burden of proof on the special issues. The failure to produce documentary evidence is analytically similar. And in fact, later cases addressing constitutional self-incrimination claims have held that prosecutorial comment on the absence of evidence is proper so long as “the language can reasonably be construed to refer to appellant’s failure to produce evidence other than his own testimony.” We conclude that the prosecutor’s reference to the absence of documentary evidence did not constitute a shifting of the burden of proof on the special issues. Point of error thirteen is overruled.

E. Constitutionality of Death Penalty Scheme

1. Absence of meaningful appellate review

In point of error nine, appellant contends that the current death penalty scheme is unconstitutional because there is no meaningful appellate review of the special issues. He points out that this Court refuses to conduct a factual sufficiency review of the future dangerousness special issue and refuses to conduct a legal or factual sufficiency review of the mitigation special issue. Appellant concedes that we have previously decided these claims adversely to his position. Nothing in his argument persuades us to retreat from our prior holdings. Point of error nine is overruled.

2. Substance used in executions

In point of error eight, appellant contends that pancuronium bromide, one of the substances used in Texas executions, inflicts cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The State argues that appellant failed to preserve error because he did not object at trial.

Assuming, arguendo, that appellant was not required to object at trial to preserve error on this type of claim, we nevertheless conclude that we cannot address this claim in its current posture in this appeal. This claim involves the same concerns that are involved in determining the reliability of a scientific theory or technique. This is the type of claim the resolution of which should provide a rule of law for all cases, but a rehable resolution of the merits requires a fact-intensive inquiry. Because of the absence of litigation during the trial, the record is not sufficiently developed to resolve this claim, and the novel nature of the claim counsels against resolution through judicial notice without the benefit of litigation before a fact-finder. Point of error eight is overruled.

The judgment of the trial court is affirmed.

PRICE, J., concurred in the result.

      . Tex. Penal Code § 19.03(a).

      . Art. 37.0711 § 3(g). Unless otherwise indicated all future references to Articles refer to the Texas Code of Criminal Procedure.

      . Art. 37.0711 § 3(j).

      . Appellant advanced these complaints to the trial court in a motion to suppress. A pretrial hearing was held, after which the trial court denied the motion.

      . See Art. 38.22, § 2(a)(l)("triar') and (2)("court”).

      . See Art. 38.22, § 2(a)(3).

      . 25 S.W.3d 183 (Tex.Crim.App.2000).

      . See Art. 38.22, § 8.

      . See Acts 2001, 77th Leg., ch. 990, § 2.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although appellant did not timely file these supplemental points of error, we will consider them in the interest of justice.

      . Three of the tape-recorded statements (State's Exhibits 2, 4, and 5) were admitted only at the punishment stage of trial.

      . See Art. 38.22, § 3(e)(2).

      . Appellant was arrested in Florida but was subsequently extradited to Louisiana and transported to the West Baton Rouge Parish Sheriff's office.

      . Appellant pleaded guilty to this offense on February 2, 1999.

      . Appellant later made another tape-recorded confession to this offense to Texas police detectives — introduced at trial as State’s Exhibit 1. Appellant does not contest the admissibility of this subsequently recorded confession.

      .The record does not establish the exact time in the afternoon that the second tape-recorded session began, but the record does establish that the session began before appellant was taken to a magistrate, that the session lasted for approximately fifty minutes, and that appellant was taken before a magistrate at approximately 5:00 p.m.

      . In each instance, unrecorded oral conversations between appellant and the officers took place after the warnings were given but before the tape-recorded statements. Appellant makes no complaint regarding the unrecorded portions of the interviews.

      . Appellant talked to law enforcement officials numerous other times and with the media a couple of times while he was held in Louisiana. In connection with all the interviews in which appellant participated, copies of this form were signed on December 16 (twice), 17, 18, 21, 23, 29, and 31; on January 3, 5 (twice), 6, 8, 11, 14, 16, 25, 28, and 29; on February 1, 3, 5, 9, 11, 18, 22, 23, and 26; March 1, 2, 3, 4, 10, 11, and 22; April 9, 19, and 22.

      . The entire form was read to appellant during the recording in State’s Exhibits 2 and 5. State’s Exhibit 3 included everything but the introductory paragraph.

      . During the recording in State's Exhibit 5, appellant twice stated in his own words that he waived his right to a lawyer — the first time after acknowledging his understanding of warning 2B, and the second time after acknowledging his understanding of warning 2D.

      . 25 S.W.3d at 185 n. 3.

      . Art. 38.22, § 3(e)(2).

      . 742 S.W.2d 664 (Tex.Crim.App.1987), vacated on other grounds, 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 917 (1988).

      . Id. at 676. The warning before us differs only in that it uses the phrase "can and will” in place of the word "can.” See id.

      . Id.

      . See Art. 38.22 (West 1988)(statute last revised in 1981).

      . Id.

      . 712 S.W.2d 858 (Tex.App.-Houston [1st Dist.] 1986, pet. ref’d).

      . Id. at 860.

      . Id. at 861.

      . Id. at 860.

      . Id.

      . Id.

      . Id. at 861.

      . Id.

      . 509 S.W.2d 332 (Tex.Crim.App.1974).

      . Id. at 336.

      . Id.

      . Id. at 337.

      . Id. at 334-335.

      . Id. at 337-338.

      . 119 S.W.3d 766 (Tex.Crim.App.2003), cert. denied, - U.S. -, 124 S.Ct. 2836, 159 L.Ed.2d 270 (2004).

      . See Jones, 119 S.W.3d at 795 (Keller, P.J. concurring).

      . Jones, 119 S.W.3d at 773 n. 13.

      . 88 S.W.3d 236 (Tex.Crim.App.2002).

      . Id. at 239-240.

      . Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App.2004).

      . Masterson v. State, 155 S.W.3d 167, 171 ((Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 654-655 (Tex.Crim.App.2002); Henderson v. State, 962 S.W.2d 544, 564 (Tex.Crim.App.1997), cert. denied, 525 U.S. 978, 119 S.Ct. 437, 142 L.Ed.2d 357 (1998).

      . Henderson, 962 S.W.2d at 564-565.

      . The issue asks: "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.0711, § 3(b)(2).

      . Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App.1996);

      . Blue v. State, 125 S.W.3d 491, 493 (Tex.Crim.App.2003), cert. denied, - U.S. -, 125 S.Ct. 297, 160 L.Ed.2d 87 (2004)(citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      . Salazar v. State, 86 S.W.3d 640, 644-645 (Tex.Crim.App.2002).

      . Id. at 644.

      . Padron v. State, 988 S.W.2d 344, 346 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Malpica v. State, 108 S.W.3d 374, 378 (Tex.App.Tyler 2003, no pet.). To appellant’s list we add Jackson v. State, 65 S.W.3d 317, 321 (Tex.App.-Waco 2001, no pet.)(''Arguably, the corpus delicti rule has no application in the punishment phase for the same reasons the accomplice witness rule does not apply,” but concluding that, even if the rule did apply, there was sufficient independent evidence in that case).

        . Jones v. State, 982 S.W.2d 386, 395- (Tex.Crim.App.1998), cert. denied, 528 U.S. 985, 120 S.Ct. 444, 145 L.Ed.2d 362 (1999); May
        v. State, 618 S.W.2d 333, 342-343 (Tex.Crim.App.), vacated on other grounds, 454 U.S. 959, 102 S.Ct. 497, 70 L.Ed.2d 374 (1981) and overruled on other grounds, Ex parte Elizondo, 947 S.W.2d 202, 205 (1996).

      . May, 618 S.W.2d at 342.

      . Id.

      . See Jackson, 65 S.W.3d at 321.

      . Chamberlain v. State, 998 S.W.2d 230, 237-238 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000).

      . Tex.R.App. P. 33.1(a)(1)(A).

      . See Tong v. State, 25 S.W.3d 707, 712-713 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001).

      . Art. 37.0711, § 3(a)(1).

      . We refer to the prosecution argument preceding appellant's closing argument. Opening and closing arguments were delivered by different prosecutors in this case.

      . 591 S.W.2d 464, 479 (Tex.Crim.App.1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980).

      . Id.

      . Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995); see also Fuentes v. State, 991 S.W.2d 267, (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999).

      . Allen v. State, 108 S.W.3d 281, 285 (Tex.Crim.App.2003), cert. denied, 540 U.S. 1185, 124 S.Ct. 1405, 158 L.Ed.2d 90 (2004)

      . See Hernandez v. State, 116 S.W.3d 26 (Tex.Crim.App.2003).

      . Id.

      . id,


text:
    Ex Parte Keenan Dean BYRD.
    Nos. AP-74993, AP-74994.
    Court of Criminal Appeals of Texas.
    May 4, 2005.

      Keenan Dean Byrd, pro se.
    Edward F. Shaughnessy, III, Asst. District Atty., San Antonio, Matthew Paul, State’s Atty., Austin, for State.

      . § 508.149(a).

   KELLER, P.J.,

delivered the opinion of the unanimous Court.

We filed and set this application for writ of habeas corpus to determine whether an aggravated assault on a peace officer committed in 1986 renders applicant ineligible for time credit under Texas Government Code § 508.283(c). We hold that applicant is eligible for the time credit and grant relief.

I. BACKGROUND

On January 31, 1986, applicant committed the offense of aggravated assault on a peace officer. He was later convicted of that offense and placed on probation. On December 31, 1988, applicant committed the offense of theft from a person. He was convicted, but placed on probation for that offense as well. On February 8,1990, his probations in both cases were revoked, and he was sentenced to seven years on the aggravated assault case and to eight years on the theft case, to be served consecutively. Due to the accumulation of pretrial time credits, applicant’s start date for TDCJ calculation purposes was February 20,1989.

Applicant was released to mandatory supervision on February 23, 2000. A pre-revocation warrant was issued on May 12, 2002, and applicant’s mandatory supervision was subsequently revoked. At the time the warrant issued, applicant had spent 810 days on mandatory supervision, and he had 650 days remaining on his sentence, with a discharge date of February 20, 2004. Upon revocation, applicant was not awarded credit for time spent on release. As a result, his discharge date moved to May 13, 2006.

In his application for writ of habeas corpus, applicant complains that he should have received credit under Texas Government Code § 508.283 for time spent on release. The State contends, however, that applicant is a person “described by Texas Government Code § 508.149(a)” and so the benefits of § 508.283 do not apply to him.

II. ANALYSIS

§ 508.283 grants credit for time served while on release (i.e. “street time”) if, at the time the warrant initiating the revocation process issues, a prisoner has spent more time on release than he has left to serve and he is not a person “described by § 508.149(a).” Because applicant spent more time on release than he had left to serve, the question before us is whether he is a person described by § 508.149(a).

§ 508.149(a) sets out a list of offenses that render an inmate ineligible for mandatory supervision. These offenses are described by code, section number, and the degree of the felony. Under the current version of § 508.149(a), an inmate is ineligible for mandatory supervision if he is “serving a sentence for or has been previously convicted of’ one of these offenses. But eligibility for mandatory supervision is governed by the law in effect at the time the offense was committed, and the laws applying to applicant in 1986 and 1988 when he committed the offenses permitted his release to mandatory supervision.

The § 508.283 time credit applies to revocations that occur after September 1, 2001. The State contends that when § 508.283 refers to § 508.149(a), it means the version in effect at the time of revocation rather than whatever predecessor version controls the prisoner’s mandatory supervision eligibility. As a result, the State reasons, a person who is eligible for mandatory supervision may be ineligible for the time credit, and vice-versa. Nevertheless, assuming arguendo that the State’s interpretation of § 508.283 is correct, applicant prevails because, even under that interpretation, applicant’s aggravated assault offense is not described by § 508.149(a).

Included in the list of offenses found in § 508.149(a) is “a first degree felony or a second degree felony under Section 22.02, Penal Code.” Since 1973, § 22.02 has prohibited an offense entitled “aggravated assault.” The offense of “aggravated assault on a peace officer,” for which applicant was convicted, was indeed codified at the time applicant committed the offense as an “aggravated assault” offense under § 22.02. But in 1986, aggravated assault on a peace officer was a third degree felony unless a deadly weapon was used. Applicant’s indictment did not allege the use of a deadly weapon, no reference to a deadly weapon appears in the judgment, and the sentence of seven years is consistent with a third degree felony. Consequently, although the degree of felony was not specified in the indictment or the judgment, we conclude that applicant was in fact convicted of a third degree felony. § 508.149(a), which refers only to first and second degree felony offenses committed under § 22.02, does not expressly include applicant’s offense.

But that does not end the inquiry. Recently, in Ex 'parte Ervin, the Court decided that statutory precursors of the offenses listed in § 508.149(a) are considered to be included for the purpose of determining whether an inmate is ineligible for mandatory supervision. Even if we were to assume arguendo that Ervin’s holding regarding mandatory-supervision eligibility extends, via § 508.283’s reference to § 508.149(a), to street-time eligibility, that holding has no applicability in this case because applicant’s “aggravated assault” offense is not a statutory precursor to any offense contained in § 22.02 (and therefore excluded by § 508.283) at the time of his revocation.

The subsection of § 22.02 describing applicant's offense provided that a person commits an offense if he:

... threatens with a deadly weapon or causes bodily injury to a peace officer or a jailer or guard employed at a municipal or county jail or by the Texas Department of Corrections when the person knows or has been informed the person assaulted is a peace officer, jailer, or guard:
(A) while the peace officer, jailer, or guard is lawfully discharging an official duty; or
(B) in retaliation for or on account of an exercise of official power or performance of an official duty as a peace officer, jailer, or guard.

The aggravated assault statute in effect at the time of applicant’s revocation did include a subsection referencing “public servants” — with language that is otherwise similar to divisions (A) and (B) under the 1986 version of the statute — and making an offense committed under that section a first degree felony. But the first degree felony offense found in the 2002 version of the statute contains additional elements not present in the third degree felony offense found in the 1986 version. Under the 2002 version of the statute, aggravated assault against a public servant requires a showing, along with all other aggravated assaults, of either serious bodily injury or the use or exhibition of a deadly weapon. Neither of these elements was required by the third degree felony found in the 1986 version of the statute, and in fact, the 1986 statute contained the element of “bodily injury,” a lesser element than “serious bodily injury.”

A careful reading of the Penal Code reveals that the statutory successor to the 1986 offense is actually found in the 2002 version of Texas Penal Code § 22.01, the simple assault statute. The 2002 version of § 22.01 proscribed conduct that inflicted “bodily injury” and provided for an enhanced penalty (third degree felony) when such conduct was directed against “public servants”:

An offense under Subsection (a)(1) [causing bodily injury] is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant.

§ 22.01 is not listed in the 2002 version of § 508.149(a). Since applicant's 1986 offense was a statutory precursor to the 2002 version of § 22.01 instead of § 22.02, it does not come within the'rule announced in Ervin.

Applicant’s “aggravated assault on a peace officer” offense is not an offense described by § 508.149(a). Consequently, he is eligible for the § 508.283 time credit.

Relief is granted. We order that applicant’s sentence be credited with the 810 days he spent on supervised release. A copy of this opinion will be sent to TDCJ-CID and the Board of Pardons and Parole.

      . The background facts are taken from the trial court’s findings of fact and conclusions of law.

      . Texas Department of Criminal Justice.

      . Applicant had previously filed a time-credit dispute with the appropriate division of TDCJ.

      . § 508.283(c).

      . Id.

        . Acts 1987, 70th Leg., ch. 384, § 9; Acts 1995, 74th Leg., ch. 263, § 3.

      . See Tex.Code Crim Proc., Art. 42.18, § 8(c)(1986, 1988).

      . Acts 2001, 77th Leg., ch. 856, § 11.

      . § 508.149 was last amended on June 14, 2001.

      . § 508.149(a)(7).

      . Tex. Pen.Code § 22.02(a)(2)(1986).

      . Tex. Pen.Code § 22.02(c)(1986)("An offense under this section is a felony of the third degree unless the offense is committed under Subdivision (2) of Subsection (a) of this section and the person uses a deadly weapon, in which event the offense is a felony of the second degree”).

      . The indictment alleged that applicant "did then and there knowingly and intentionally cause bodily injury to Gregory Silber, hereinafter called the complainant, who was a peace officer in the lawful discharge of official duty and the said defendant knew and had been informed that complainant was a peace officer, by then and there striking said complainant in the head and chest with defendant's fist.”

      . 2005 WL 767846, 2005 Tex.Crim.App. LEXIS 518 (April 6, 2005).

      . § 22.02(a)(2)(1986)(emphasis added).

      . § 22.02(b)(2)(2002).

      . § 22.02(a)(1), (2)(2002).

      . § 22.01(b)(l)(bracketed material inserted).

      . Ex parte Spann, 132 S.W.3d 390 (Tex.Crim.App.2004).