author: DWYER, Judge.

text:
    Horace Eugene ROBINSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 2, 1979.
    Certiorari Denied by Supreme Court April 9, 1979.
    Randall L. Kinnard, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, Victor S. Johnson, III, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

DWYER, Judge.

From the judgment denying and dismissing the petition for Writ of Habeas Corpus, the appellant appeals with assignment of error. The appellant was and is incarcerated as a result of four guilty plea convictions which were entered in 1960.

It is the appellant’s assignment of error that the language of the minute entry pertaining to the second of two armed robbery sentences is vague and ambiguous. Hence, the appellant contends the second armed robbery sentence should be interpreted as running concurrently with the first, in the absence of clear language that the two sentences should run consecutively. The appellant further reasons that had the two armed robbery sentences run concurrently, the appellant’s release date and expiration date would have already occurred before he was convicted on June 22, 1977, while on parole of attempting to commit a felony, to wit: possession of a controlled substance, with confinement for not less than nor more than two years. The sentence for the latter offense is entered to begin after the appellant has completed the time on the 1960 sentences. If the appellant’s petition has merit, he contends that the Board of Pardons and Paroles would not have had jurisdiction to revoke his parole and, therefore, would not require him to complete the 1960 sentences since these sentences would have expired. The appellant further contends that because he has served six additional years on the 1960 sentence, this time should be credited on his present sentence and, therefore, he should be released.

The minute entries pertaining to appellant’s guilty pleas entered in 1960, in the sequence as found in the minute book by the trial court in its memorandum dismissing the appellant’s petition, are reproduced so that appellant’s argument may be brought into proper focus and, also, to clarify our reasons for disagreeing with his argument.

Case No. 12030:

“ . . . that they find the defendant guilty of assault intent to commit murder. And assess his punishment at confinement in the State Penitentiary for a period of not more than 21 years.”

Case No. 12040:

“ . . . that they find the defendant guilty of burglary 3rd. degree and assess his punishment at confinement in the State Penitentiary for a period of not more than 3 years, each.”
******
“Said sentence to run concurrent with former sentence.”

Case No. 12026:

“ . . . that they find the defendant guilty of armed robbery and assess his punishment at confinement in the State Penitentiary for a period of not more than 10 years, each.”
******
“Said sentence to begin at expiration of Case # 12030.”

Case No. 12020:

“ . . . that they find the defendant guilty of armed robbery and assess his punishment at confinement in the State Penitentiary for a period of not more than 10 years, each.”
******
“Sentence of Ransom, Waddy, and Johnson, concurrent.”
“Sentence of Robinson expiration with Case # 12026.”

The crux of the appellant’s argument involves the different language employed in the minute entry in Case No. 12026, “at expiration of Case # 12030”, and the minute entry in Case No. 12020, “expiration with Case # 12026.” It is his contention that the latter quoted phrase is ambiguous and vague which condition should result in an interpretation that the two sentences are to run concurrently.

The appellant called the clerk of the Davidson County Criminal Court with stipulation as to his expertise in interpreting the minutes of that Court. The clerk related he was not sure what the phrase “expiration with Case # 12026” meant, however, he did not think it meant concurrently with Case No. 12026. His testimony further revealed that the appellant was involved in Case No. 12026 with three other defendants, Waddy, Ransom and Johnson, who were also involved in Case No. 12020; that the minute entry of Case No. 12020 indicated the sentences for the other three defendants were concurrent, while the sentence under Case No. 12020 for the appellant stated, “expiration with Case # 12026.”; and that if the sentence was to have been concurrent the appellant’s name would have been included with the other three defendants. It was, therefore, the clerk’s interpretation, while not personally compiling the entries, that the sentence in Case No. 12026 was to run at the expiration of Case No. 12030, and that Case No. 12020 was to run at the expiration of Case No. 12026.

The appellant called a second witness, Mr. Pitts, Director of Records for the Department of Corrections, with stipulation as to his expertise in determining parole eligibility dates. He related that the phrase “at the expiration of” is used in the escape statute, T.C.A. 39-3807, and that it was also frequently used in commitment papers. If a sentence does not fall under the statutory requirement of having to begin at the expiration of a second sentence, Mr. Pitts testified, then a sentence that reads “at the expiration of” is interpreted as running consecutively to a second sentence for the purpose of computing parole dates; that is, the sentences are added together, as was done with the appellant’s two armed robbery sentences.

The appellant, testifying in his own behalf, related that when he entered his guilty plea in 1960 he thought the sentences for the armed robbery convictions were to run concurrently; and that when he got to the Penitentiary he was informed by his attorney that they were to run consecutively.

A court speaks through its minutes, Mullen v. State, 164 Tenn. 523, 151 S.W.2d 497 (1932). We think if the language of the minutes is so unclear as to require expert testimony to decipher, we would hold it is vague. However, while not controlling, we note both experts offered by appellant interpreted the language in question as indicative of consecutive sentences.

The trial court, in its memorandum opinion dismissing the appellant’s petition, held that such language, as was used in the minutes, conveyed the idea of what was done with “reasonable certainty of meaning.”: the second armed robbery sentence, Case No. 12020, was to run consecutively with the first armed robbery sentence, Case No. 12026. With this we are in accord.

A judgment should be construed, if possible, so as to give force and effect to every word thereof, and make it as a whole consistent, effective and reasonable. Batliner v. Sallee, 254 Iowa 561, 118 N.W.2d 552 (1962). A judgment must be construed in its entirety, giving effect to that which is clearly implied as well as that which is expressed. Watts v. State, 141 Ga.App. 127, 232 S.E.2d 590 (1977). An obscure judgment will be upheld if its sense can be clearly discerned from the whole record. Fleming v. Kemp, 27 Tenn.App. 150, 178 S.W.2d 397 (1944).

Applying the above cases to the language as used in the minute entries, we think construing the sentences to run consecutively is reasonable. We think consecutiveness is clearly implied as well as expressed, and its sense can clearly be discerned from the examination of the whole record. We think the findings of the trial court in dismissing the petition are in accord with the above related standards. The assignment is overruled. The judgment is affirmed.

RUSSELL, P. J., and WALKER, J., concur.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Lila Faye NORRIS, Relator, v. Honorable Bob BULLOCK, Comptroller et al., Respondents.
    No. B-7907.
    Supreme Court of Texas.
    May 2, 1979.
    Rehearing Denied May 30, 1979.
    Riddle, Murphrey, O’Quinn & Cannon, John M. O’Quinn, Houston, for relator.
    Mark White, Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., Dudley Fowler and Watson C. Arnold, Asst. Attys. Gen., Austin, for respondents.
   BARROW, Justice.

Relator Lila Faye Norris seeks a mandamus against either the Honorable Bob Bullock, Texas Comptroller of Public Accounts, or the Honorable Reagan Houston, Chairman of the State Highway and Public Transportation Commission, to issue a warrant for the payment of a final judgment against the State of Texas and the Department of Public Highways and Public Transportation. The judgment in the sum of $82,597.43 is for injuries sustained by Ms. Norris because of a malfunctioning traffic light in Bay City. The relator recovered her judgment under the Texas Tort Claims Act, Article 6252-19 ; State v. Norris, 550 S.W.2d 386 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r, e.). We conditionally grant the relief against Comptroller Bullock.

The parties concede the validity and finality of the judgment. The answer filed herein on behalf of Comptroller Bullock states that “he does not object to the Entry of a Writ of Mandamus ordering him to pay Relator the amount of the final judgment in question out of funds within his control.” Relator’s petition is supported by the affidavit of the Chief Clerk of the Comptroller of Public Accounts which avers that there are sufficient funds available to pay this judgment. By supplemental affidavit, the Chief Clerk has averred specifically that there is currently a balance of nearly 35 million dollars in the General Revenue Fund (Fund No. 001) to the credit of the State Department of Highways and Public Transportation . Comptroller Bullock repeatedly advised relator’s attorney before this action was filed that there were available funds to pay the judgment but that he could not do so without a voucher signed by a representative of the Highway Commission or a court order.

Articles 4344, 4355, 4356 and 4357 enumerate the duties of the Comptroller and, in effect, make him responsible as the State’s sole accounting officer, to determine that the fiscal concerns of the State are managed as provided by law. Included is the duty to verify the correctness of all accounts presented for settlement and to require vouchers in support of same. These duties are different from those of the State Treasurer and make him more than a mere disbursing officer.

We held in S. & G. Const. Co., Inc. v. Bullock, 545 S.W.2d 953 (Tex.1977) that a final judgment takes the place of a voucher and the Comptroller was there ordered to pay the final judgment rendered against the Board of Regents of the University of Texas for recovery of consequential damages growing out of a construction contract. In reaching this result, we relied upon the broad terms of the appropriation act as authorizing the payment of a judgment for damages. The rule established in S. & G. Const. Co., Inc. v. Bullock, supra, is applicable here and there is a clear duty upon the Comptroller to pay the final judgment without receipt of a voucher signed by Chairman Houston.

Respondent’s attorneys, although purporting to represent Comptroller Bullock as well as Chairman Houston, insist however that there are no funds available to pay this judgment. Specifically it is asserted that there are constitutional and statutory provisions which limit expenditures from the State Highway Fund (Fund No. 006). We need not reach this question in that the General Revenue Fund (Fund No. 001) has a balance to the credit of the Highway Department sufficient to pay this judgment.

The 1977 appropriations bill specifically authorizes the payment of judgments rendered against the State under the Texas Tort Claims Act, Article 6252-19 or Article 6252-26. Prior thereto, it was necessary for the successful party to secure an appropriation from the legislature, such as H.B. No. 1575 enacted by the 65th Legislature, to satisfy such judgment. In order to effectuate the purpose of the Texas Tort Claims Act, the 65th Legislature added section 70 to the appropriations bill to specifically authorize payment of this type judgment by providing:

“None of the funds appropriated by this Act may be expended for payment of any judgment obtained against the State of Texas or any state agency, except where it is specifically provided in an item or items of appropriation that the funds thereby appropriated may be used for the payment of such judgments. PROVIDED, HOWEVER, THAT NOT WITHSTANDING ANY OTHER PROVISIONS OF THIS ACT, FUNDS APPROPRIATED BY THIS ACT MAY BE EXPENDED FOR PAYMENT OF JUDGMENTS ENTERED IN CAUSES OF ACTION ARISING UNDER THE TEXAS TORT CLAIMS ACT, Article 6252-19 of Vernon’s Civil Statutes or Article 6252-26 of Vernon’s Civil Statutes, as amended by Senate Bill No. 37, Acts of the Sixty-fifth Legislature, 1977.” (Emphasis ours)

This provision fully authorizes the expenditure of such funds appropriated to the State Department of Highways and Public Transportation as are necessary to satisfy the judgment of relator.

Perhaps the 66th Legislature would enact specific legislation to pay Ms. Norris’ judgment from general funds, whereby she would be paid after September 1, 1979. However, Ms. Norris and other holders of judgments against the Highway Department under the Texas Tort Claims Act are entitled to be paid under the terms of the Act and not at the discretion of a subsequent legislature.

We conclude that there is a clear duty upon the Comptroller to pay the final judgment from funds appropriated to the Department which are identified as the General Revenue Fund (Fund No. 001). The Comptroller has stated that he will comply with this opinion and issue the warrant without the necessity of a voucher signed by the proper official of the Department. In the event he fails to do so, a writ of mandamus will issue. The petition for writ of mandamus is conditionally granted.

      . All statutory references are to Texas Revised Civil Statutes Annotated.

      .This money is appropriated to the Department by H. B. 3, 1977 Tex.Gen.Laws, Ch. 55, at 112.

      .Article VIII, section 7-a of the Texas Constitution and Articles 6674 and 6674e, Texas Revised Civil Statutes Annotated.

      .1977 Tex.Gen.Laws, ch. 644, at 1647.

      . Sec. 11 of the Texas Tort Claims Act provides for payment of judgments under the Act as follows:
      “Judgments recovered against units of government pursuant to the provisions of this Act shall be enforced in the same manner and to the same extent as judgments are now enforced against such units of government under the statutes and law of Texas; and no additional methods of collecting judgments are granted by this Act. Provided, however, if the judgment is obtained against a unit of government that has procured a contract or policy of liability or indemnity insurance protection, the holder of the judgment may use such methods of collecting said judgment as are provided by the policy or contract and statutes and laws of Texas to the extent of the limits of coverage provided therein. It is expressly provided, however, that judgments under this Act becoming final during any fiscal year need not be paid by such unit of government until the following fiscal year except to the extent that they may be payable by an insurance carrier. For the payment of any final judgment obtained under the provisions of this Act, a unit of government not fully covered by liability insurance is hereby authorized to levy an ad valorem tax, the rate of which, if found by the unit of government to be necessary, may exceed any legal limit otherwise applicable except as may be imposed by the Constitution of the State of Texas. In the event that judgments arising under the provisions of this Act become final against a unit of government in any one fiscal year in an aggregate amount, exclusive of insurance coverage, if any, in excess of one percent of the budgeted tax funds, exclusive of general obligation debt service requirements, of such unit of government for such fiscal year, then such unit of government may pay such judgments over a period of not more than five years in equal annual installments and shall pay interest on the unpaid balance at the rate provided by law.”


author: PER CURIAM.

text:
    Mary Sue CRAFT, Petitioner, v. Jerry David CRAFT, Respondent.
    No. B-8333.
    Supreme Court of Texas.
    May 2, 1979.

      Berman, Fichtner & Mitchell, Jay S. Fichtner and Beverly A. Lebowitz, Dallas, for petitioner.
    Ray, Anderson, Shields, Trotti & Hemp-hill, Charles 0. Shields, Dallas, for respondent.
   PER CURIAM.

Pursuant to Tex.Family Code, Section 11.11, the district court appointed Jerry David Craft temporary managing conservator of his children until final determination of a pending motion to modify the managing conservatorship of the children. The Court of Civil Appeals ruled that the temporary order is not appealable and dismissed the appeal. 579 S.W.2d 506. Mary Sue Craft has filed an application for writ of error to this Court which is refused. Tex.R.Civ.P. 483.

Section 11.11(a) temporary orders are governed procedurally by Section 11.11(b). There is, however, no provision in Section 11.11, or otherwise in the Family Code, for an appeal therefrom. Section 11.19 expressly governs appeals from orders entered in suits affecting the parent-child relationship but is silent with respect to Section 11.11 orders. We agree with the ruling that such orders are not appealable.

We note our refusal, no reversible error, of the application for writ of error in In the Interest of Stuart, 544 S.W.2d 821 (Tex.Civ.App.1976, writ ref’d n. r. e.). However, the ruling of the Court of Civil Appeals that a temporary order under Section 11.11 is ap-pealable was not assigned as error in the application for writ of error in that case.


author: ODOM, Judge. TOM G. DAVIS, Judge.

text:
    Larry PLUNKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 55078.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1978.
    On Rehearing May 16, 1979.

      Ronald W. Aultman and Jerry J. Loftin, Fort Worth, for appellant.
    Robert J. Glasgow, Dist. Atty. and William L. Martin, Jr., Asst. Dist. Atty., Ste-phenville, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder in which the jury assessed punishment at fifty years.

It is only necessary to discuss one of appellant’s grounds of error. In his third ground of error appellant contends the court erroneously charged the jury on the offense alleged.

The indictment in relevant part alleges that appellant did:

“. . . intentionally and knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands. . . . ”

V.T.C.A., Penal Code Sec. 19.02, which defines the offense of murder, in relevant part provides:

“(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual; [or]
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; . . . ”

Appellant was clearly charged under Sec. 19.02(a)(1), yet the trial court, in submitting the case to the jury, allowed them to find appellant guilty under either Sec. 19.-02(a)(1) or Sec. 19.02(a)(2). Although the court first correctly applied the law to the facts of the case under the theory alleged in the indictment, it then immediately thereafter included this paragraph in its instructions to the jury:

“You are instructed that to be guilty of murder, a defendant must have acted intentionally or knowingly in causing the death of the deceased. He must have intentionally or knowingly caused the death, or he must have intended to cause serious bodily injury and have committed an act clearly dangerous to human life that caused the death of the deceased. Unless defendant so acted intentionally or knowingly or with intent to cause serious bodily injury to the deceasedhe cannot be convicted of murder.
“Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, Larry Plunkett, did cause the death of April Dawn Peters by striking her with his hands, but you have a reasonable doubt that the defendant did intentionally or knowingly cause death or that he intended to cause April Dawn Peters serious bodily injury, then you will acquit the defendant of murder, and will consider whether or not he is guilty of involuntary manslaughter.”

We find the jury charge on a theory not alleged in the indictment was fundamental error requiring a new trial, and sustain appellant’s third ground of error. In Morter v. State, Tex.Cr.App., 551 S.W.2d 715, the defendant was convicted of injury to a child on an indictment that alleged he had caused serious bodily injury. On appeal the conviction was reversed because the jury instructions authorized conviction if the evidence showed the defendant had caused serious physical deficiency or impairment, or deformity, which were means not alleged in the indictment. Robbery convictions were reversed for fundamentally defective jury charges authorizing convictions on theories not alleged in the indictments in Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Jones v. State, Tex.Cr.App., 566 S.W.2d 939, and Edmond v. State, Tex.Cr.App., 566 S.W.2d 609. In Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177, a conviction for burglary with intent to commit theft was reversed for fundamental error in the jury charge because it authorized a conviction for burglary with intent to commit a felony or theft even though no intent to commit a felony had been alleged in the indictment.

In this case the indictment alleged murder by intentionally or knowingly causing the deceased’s death, but the jury charge expanded on those allegations and authorized a conviction if appellant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the deceased’s death. This was fundamental error and the conviction must be set aside.

The judgment is reversed and the cause remanded.

Before the court en banc.

OPINION ON COURT’S OWN MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. V.T.C.A. Penal Code, Sec. 19.02. Punishment was assessed by the jury at fifty years.

Appellant initially challenges the sufficiency of the evidence to support the conviction.

The record reflects that April Dawn Peters, age two, died on January 7, 1975, at her home in Mineral Wells. Appellant lived with the child’s mother at the time of the death of the deceased.

Dr. Charles Petty, Chief Medical Examiner for Dallas County, testified as to the cause of death of the child. His testimony was based on the results of an autopsy performed by Dr. Ross Zumwalt on January 8, 1975.

Dr. Petty testified that there were thirty to forty bruises on the body of the deceased. These bruises were from three-eighths of an inch to an inch at their greatest dimension. The bruises were found on the left forehead, both sides of the face, the chest, the abdomen, the back, the front surfaces of both thighs and lower legs, and the inner surface of one thigh. The bruises found on the buttocks were larger than the others and flowed together. Dr. Petty identified State’s Exhibit No. 1 as a picture of the deceased depicting the bruises to her face and chest.

The inner surface of the scalp covering the left side of the back of the head was also bruised, and under it was a corresponding fracture of the skull. The fracture was described as “Y” shaped and three inches long at its greatest length. The depth of the fracture was the entire thickness of the skull. The witness observed that the edges of the fracture were not bent inward or depressed, indicating contact with a broad flat object rather than a narrow, more pointed object. The brain was described as swollen.

The autopsy revealed other internal injuries to the trunk of the body. The heart had a tear on its back portion. The sac surrounding the heart contained a considerable amount of blood. The liver, the spleen, and the pancreas had also been torn. There were tears in the tissue that holds the intestines in place, and blood was present in both the chest and abdominal cavities. In the doctor’s opinion, each of the above injuries was caused by force either directly applied or indirectly applied, such as a blow or an impact with a fixed object.

When asked whether the internal injuries could have been the result of resuscitation or heart massage attempts, the witness stated that the injuries could have resulted from such actions. In his opinion, however, they were not caused by resuscitative measures. The doctor stated that a great or heavy force would be necessary to cause the injuries to the internal organs that the autopsy revealed. He further stated that no food material or vomitus was found anywhere in the respiratory track, as would be expected if a person had been choking on such material so as to require resuscitation.

Dr. Petty testified that the injury to the head was received approximately an hour before death. He further estimated that the head injury was “somewhat older than the injuries to the abdomen, thirty minutes, perhaps forty-five.” An examination of some of the bruises revealed that they were received sometime within 24 hours of death.

The witness concluded that either the injuries to the head or the injuries to the internal organs would have been sufficient to cause the death independently of each other. He stated that in his opinion the injuries to the head were not those normally received when a child falls from an ordinary bed onto a carpeted floor.

Larry Watson, a Mineral Wells police officer, testified in regard to his investigation of the incident. Watson identified State’s Exhibits Nos. 2-7 as pictures of the deceased taken at the hospital. These pictures depict the bruises covering the deceased’s body as described above.

Gerald Seaman, an ambulance attendant, testified that he attempted to resuscitate the deceased. He found the airway was not blocked and that he was able to get air into the child’s lungs. He also attempted to resuscitate the child’s heart by external means, but was unsuccessful. Seaman also stated that he applied a suction apparatus to the airways of the victim and that a fluid containing food particles was removed by this method.

Gayle Peters, the mother of the deceased, testified that she left the child in the appellant’s care about 6:00 p. m. on the day of the child’s death. According to her testimony, earlier that day she had bathed the girl and noticed bruises on her buttocks and stomach only. Peters stated that the bruises on the buttocks were from a spanking administered by the appellant on the previous day. She further stated that when she left the house at 6:00 p. m. the child had no other bruises and seemed to be acting normally. Peters viewed State’s Exhibit No. 1 and stated that the bruises depicted in that photo were not present when she last saw the child alive.

Cross-examination revealed that Peters had previously made a statement to police that conflicted with her testimony at trial. In that statement she recounted other injuries sustained by the child in the two weeks before her death. The extent and cause of these injuries mentioned in her statement were testified to in detail by defense witnesses and are set forth in this opinion. Letters written to the appellant by the witness were also somewhat inconsistent with her testimony at trial.

Sherrill Sogers testified that she accompanied Gayle Peters on the day of the child’s death. She stated that at 6:00 p. m. when she and Peters left the house the child seemed normal. She related that when she returned to the appellant’s home with Peters one hour later the ambulance had arrived and was about to transport the child to the hospital.

Appellant’s defense was based on showing that the bruises and head injuries were accidental and that the internal injuries were unintentionally inflicted during attempts to revive her.

Randy Fouts testified that the child was easy to bruise and very clumsy. He further testified that the bruises on her forehead were caused by a falling lamp around December 17, 1974. He stated that some four days after that incident the child tripped and injured the same part of her head. He concluded that the bruises covering her body were the result of bumping into things and accidentally hurting herself.

Appellant’s mother testified that the child was awkward and easy to bruise, and that she had observed the child fall and hit her head on a coffee table in late November. She further stated that other bruises were from the child’s mishaps while riding her tricycle.

Robin Fouts testified regarding the lamp incident and the resulting injury to the child.

Appellant’s father testified that he had observed the child fall against the coffee table. He stated that the child was somewhat awkward and that he had observed bruises on the child’s legs and on her head around Christmas, 1974.

Sherrill Rogers’ husband, Arthur, testified that he had observed bruises on the child on previous occasions. He stated that three days previous to the child’s death he had seen her fall backwards from a couch onto a concrete floor covered only by a thin carpet with no padding underneath it.

Appellant testified that he had never injured the child intentionally. According to his testimony, he was in the living room of his home when he heard a loud thump and choking sounds. He ran to the bedroom to find the child lying with her feet on the bed and her head on the floor. He stated that he attempted to resuscitate the child, and in his excitement may have used too much force on her chest and stomach. According to his testimony, he pushed on the child’s stomach and hit her on the chest to attempt to revive her. He took the child to a neighbor’s house, and help was summoned.

He admitted to have disciplined the child on previous occasions, but claimed he never injured the child. He denied any intentional injury of the child on the night of her death.

State’s rebuttal witness Ima Moreland testified as to the condition of the child on the days between Christmas and the first of January. Mrs. Moreland is the mother of the deceased’s natural father.

Moreland testified that the child was in her custody from December 18th to the 22nd, on December 26th, and again on December 29th and 30th. She stated that she had taken the child to the doctor during the first of the periods set out above for treatment of burns to her hands. She related that during this Christmas period she bathed, dressed, and cared for the child, and observed no bruises.

Moreland identified State’s Exhibits 8 through 13 as photographs taken on Christmas morning depicting the child while at Moreland’s home. She also identified State’s Exhibits Nos. 14 and 15 as pictures of the child taken on December 29th. These pictures reveal no bruises on the child’s forehead.

Moreland did state that on December 29th she noticed a bruise on her shin, a small bruise close to the corner of one eye, and small bruises on her chest and on one arm. Moreland was then shown State’s Exhibits Nos. 1 and 2, pictures of the deceased after her death. Moreland stated that the bruises depicted in those photos were more numerous, serious, and in additional locations from the ones she had observed.

Debbie Clifton, Mrs. Moreland’s daughter, testified that she observed the child on the occasions that the child was at Moreland’s home. She stated that the child had no bruise on her forehead at those times.

Appellant’s sister, Ima Plunkett, testified as a rebuttal witness for the defense. She testified that the pictures of the child, State’s Exhibit Nos. 8-15, revealed bruises on her lip, forehead, and shoulder when viewed under a magnifying glass. She further stated that the bruises on the inside of the deceased’s legs were caused by riding a rocking horse.

Appellant maintains that the evidence is insufficient to support the conviction. He specifically challenges the sufficiency of the evidence to show that he intentionally and knowingly caused the death, and to show that the death was caused by blows from his hands.

Appellant’s conviction is based on circumstantial evidence. Circumstantial evidence must exclude every other reasonable hypothesis except the guilt of the accused. Easley v. State, Tex.Cr.App., 564 S.W.2d 742; Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481. Each fact need not point directly and independently to the guilt of the accused, however, as the cumulative effect of all the incriminating facts may be sufficient to support the conviction. Easley v. State, supra; Stogsdill v. State, supra; Flores v. State, Tex.Cr.App., 551 S.W.2d 364.

The evidence reveals that the appellant was with the child when she was fatally injured. The testimony at trial regarding the severity of the injuries reflects intentional acts rather than any accident or unintentional injury. The bruises depicted in the pictures strongly indicate blows to almost every portion of the body. The locations of the bruises in many instances militate against any conclusion that they were accidental.

Piece by piece the State’s case eliminated the explanations of these injuries offered by appellant. Appellant’s testimony that he heard a thud and immediately went to the child’s aid is in direct conflict with the evidence that the blow to the head was inflicted approximately an hour before the child’s death. The evidence that the bruises and possibly the skull fracture were caused by accidents at various times previous to the date of her death is contradicted by the pictures of the child between Christmas and January 1st and the observations of the actions of the child during that time.

We find that the cumulative force of the evidence was sufficient to exclude every reasonable hypothesis but one, the appellant’s guilt.

Appellant contends that the trial court erred in its charge to the jury. The basis of this contention is that the trial court charged on a theory of murder not alleged in the indictment. Appellant made no objection to this portion of the charge at trial, thus our review is limited to fundamental error.

The indictment alleged that the appellant:

“did then and there intentionally and knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands; . . ..”

This constitutes an offense under Sec. 19.-02(a)(1), supra. The court’s charge to the jury included another mode of committing murder, however, and thus charged on a theory not alleged in the indictment.

The court’s charge defined murder abstractly to include the second possible mode of committing murder contained in Sec. 19.-02(a)(2). In the following paragraphs, the charge applied the law to the facts as follows:

“3.
“Now if you find and believe from the evidence beyond a reasonable doubt that on or about the 8th day of January, 1975, in Palo Pinto County, Texas, the defendant, Larry Plunkett, did intentionally or knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands, as set forth in the indictment, then you will find the defendant guilty of murder as charged in the indictment.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and find him not guilty of murder and consider whether he is guilty of the lesser offense of involuntary manslaughter.
“3A.
“You are instructed that to be guilty of murder, a defendant must have acted intentionally or knowingly in causing the death of the deceased. He must have intentionally or knowingly caused the death, or he must have intended to cause serious bodily injury and have committed an act clearly dangerous to human life that caused the death of deceased. Unless defendant so acted intentionally or knowingly or with intent to cause serious bodily injury to the deceased, he cannot be convicted of murder.
“Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, Larry Plunkett, did cause the death of April Dawn Peters by striking her with his hands, but you have a reasonable doubt that the defendant did intentionally or knowingly cause death or that he intended to cause April Dawn Peters serious bodily injury, then you will acquit the defendant of murder, and will consider whether or not he is guilty of involuntary manslaughter.” [Emphasis added.]

This Court has held that when a jury charge includes a theory not alleged in the indictment in its application of the law to the facts, the charge is fundamentally defective. McGee v. State, Tex.Cr.App., 575 S.W.2d 563; Cleland v. State, Tex.Cr.App., 575 S.W.2d 296. Such a charge is in error because it authorizes a conviction on a theory not alleged in the indictment, not just because surplus language has been included in the charge. See Robinson v. State, Tex.Cr.App., 553 S.W.2d 371, and compare Smith v. State, Tex.Cr.App., 541 S.W.2d 831. Thus, unless the charge in the present case authorized conviction under Sec. 19.-02(a)(2), the error in the court’s charge is not fundamental.

In the present case, the charge defined murder abstractly, and then applied this definition to the facts in Paragraph 3A. Although a theory not alleged in the indictment is included in Paragraph 3A, it is important to note that this paragraph is a converse charge, directing acquittal and consideration of the lesser included offense, not directing a finding of guilt. Thus, Paragraph 3A did not authorize a conviction under Sec. 19.02(a)(2), and provided no affirmative guidance for the jury’s finding of guilt.

Guidance for the jury is provided in Paragraph 3, which authorizes conviction if the jury finds that the appellant committed murder as defined in Sec. 19.02(a)(1), the theory charged in the indictment. Paragraph 3 directs the jury to consider the lesser included offense if it does not find that murder was committed as set out in the indictment.

Although the charge is erroneous and confusing, it does not authorize conviction on a theory not alleged in the indictment. The inclusion of the erroneous language in the charge did not enable the jury to return a guilty verdict if they found murder had been committed in any other way than that charged in the indictment. The jury was instructed to return a finding of guilt only if they found that the appellant did “intentionally or knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands.” We find no fundamental error in the jury charge. See Cumbie v. State, Tex.Cr.App., 578 S.W.2d 732.

Appellant contends that this error in the court’s charge was compounded by the prosecutor’s final arguments. He maintains that this argument regarding the erroneous charge requires reversal.

The prosecutor stated that:

“The first paragraph of the charge in this cause defines murder. And there is primarily two definitions of murder, a person commits murder if he intentionally and knowingly causes the death of an individual. That means I can plot, plan, lay and wait and shoot somebody, knowingly and intentionally shoot them, that’s murder, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that caused the death of an individual. That’s the definition that applies to this case, doing an act clearly dangerous to health that results in death, and it’s just most assuredly murder. Paragraph two, the Court sets up some definitions, intentionally, knowingly is set up there, aware of the nature of conduct, circumstances exist, bodily injury is set up for you and you can go over those definitions. Paragraph three tracks the indictment, and if that’s what you find in paragraph three, you find him guilty of murder.”

No objection was made to this argument.

Unless the arguments of the prosecutor are so prejudicial that no instruction could cure the harm, the failure to timely object waives any error. Smith v. State, Tex.Cr.App., 541 S.W.2d 831; Rodriquez v. State, Tex.Cr.App., 530 S.W.2d 944.

Appellant next contends that the trial court erred in failing to charge the jury on the law of accident. Appellant submitted a written requested charge on the law of accident. Although this charge was not a correct charge, it was sufficient to call the trial court’s attention to the omission of the charge. Stiles v. State, Tex.Cr.App., 520 S.W.2d 894; Esparza v. State, Tex.Cr.App., 520 S.W.2d 891.

A charge on accident need not be submitted unless there is some evidence that the act resulting in death was unintentional. Fazzino v. State, Tex.Cr.App., 531 S.W.2d 818; Stiles v. State, supra. The focus of our inquiry as to whether a charge on accident was required is the appellant’s acts, not the results of his acts. Fazzino v. State, supra.

In the present case, the appellant testified that his attempts to resuscitate the child were intentional, but that the results were accidental. This evidence does not support submission of a charge on accident. Nor does evidence to the effect that the injuries to the child’s head were from an accidental fall compel submission of this charge. The law of accident focuses on the appellant’s acts, not causation. No error is shown in the refusal to charge on accident.

Appellant contends “the trial court erred in refusing to include a charge on injuries received as a result of resuscitation.”

Appellant directs our attention to the following requested charges which were denied by the court:

(1) “You are instructed no acts done in attempt to resuscitate April Dawn are criminal conduct. Any injury she may sustain during resuscitation would not be the result of a criminal act, therefore if you believe from the evidence or if you have a reasonable doubt that the deceased received injury from the defendant that resulted in her death while attempting resuscitation then the defendant would not be guilty and should be acquitted.”
(2) “You are instructed that if you find that the deceased April Dawn Peters, died from injuries sustained in attempting to resuscitate her, then the defendant would not be guilty as charged in the indictment, or if you find the facts so to be, or if you have a reasonable doubt thereof you will acquit the defendant and find him not guilty.”

Appellant directs our attention to evidence that the abdominal injuries sustained by the deceased could have resulted from attempted resuscitation.

The evidence reflects that injuries were not limited to the abdominal area. Injuries were also found to the head, the face, the chest, the back, the front surfaces of both thighs, lower legs, inner surface of one thigh and the buttocks. Dr. Petty testified regarding the cause of death as follows:

“The cause of death really is the multiple injuries that were received, however, the head injuries alone would cause death, and on the other side of the coin, the abdominal injuries, that is the heart, the liver, the spleen and pancreas injuries would cause death without the head injuries, either one could cause death without the other.”

This Court has held that a trial court does not err in refusing to submit a charge that singles out limited parts of the evidence. Laws v. State, Tex.Cr.App., 549 S.W.2d 738; Hoover v. State, Tex.Cr.App., 390 S.W.2d 758; Dunne v. State, 98 Tex.Cr.R. 7, 263 S.W.2d 608. The instant case presents a classic example of the problems that arise in giving such a charge. The effect of the appellant’s requested charges is to instruct the jury to acquit if it finds that the abdominal injuries were sustained as the result of appellant’s efforts to resuscitate the deceased. Such an instruction excludes from the jury’s consideration the fact that multiple injuries were inflicted on most of the child’s body and the combined effect of all injuries could have been the cause of death. It excludes from the jury’s consideration the evidence that the deceased sustained a serious injury to the head which, according to medical testimony, would have caused the death of the deceased independently of other injuries.

By giving the requested charges the court would in effect be telling the jury that the injuries to the abdominal area caused the death of the deceased to the exclusion of all other injuries. Such a charge would clearly be a comment on the weight of the evidence. See, Hoover v. State, supra.

No error is shown in the court’s action in refusing appellant’s requested charge.

Appellant contends that the trial court erred in allowing the prosecutor to inform the jury as to the range of punishment during his argument at the guilt-innocence phase of the trial. Appellant points to three separate portions of the prosecutor’s argument in support of this contention.

Two of the three arguments complained of were not objected to on the grounds urged now. Appellant’s objection to the third argument was sustained, but no instruction to disregard was requested. Appellant did not receive an adverse ruling. Nothing is preserved for our review. Rasberry v. State, Tex.Cr.App., 535 S.W.2d 871; Stokes v. State, Tex.Cr.App., 506 S.W.2d 860.

Appellant next contends that the trial court erred in failing to grant his motion for mistrial based on the prosecutor’s jury argument. Appellant contends that the prosecutor’s argument stated a personal opinion.

The prosecutor argued:

“You know, look at the evidence. The Plunkett girl came up and testified that she’s sitting out there, she said she saw every bruise, every bruise reflected in these pictures, she said she saw four or five days prior to death. Well, that is just not true.”

The trial court sustained the appellant’s objection and instructed the jury to disregard the statement.

Normally, when an objection to jury argument is sustained and an instruction to disregard given, any error from the remark is cured. Rodriquez v. State, Tex.Cr.App., 552 S.W.2d 451; Taylor v. State, Tex.Cr.App., 550 S.W.2d 695. The argument here was not so prejudicial that an instruction could not cure any harmful effect. No error is shown.

Appellant contends that the trial court erred in allowing the prosecutor to argue outside the record. The argument complained of is:

“MR. GLASGOW [prosecutor]: And can’t you imagine he and this girl living in the relationship, sleeping in the same bed together, interfering with their sexual activities, interfering with everything they wanted to do—
“MR. LOFTIN [defense counsel]: Your Honor, again Counsel is completely outside the record, he’s completely outside the record.
“THE COURT: Overruled.”

The record reflects that the child’s mother and the appellant were living together as man and wife. The child’s mother testified that the child slept in the same bedroom as she and the appellant did.

Counsel has wide latitude in closing argument. He may draw all inferences that are reasonable and fair so long as those inferences are supported by the evidence and offered in good faith. Griffin v. State, Tex.Cr.App., 554 S.W.2d 688; Jackson v. State, Tex.Cr.App., 536 S.W.2d 371. This argument was an inference from the evidence regarding possible motives for the appellant’s alleged acts. No error is shown.

Appellant finally contends that the trial court erred in allowing the prosecutor to argue facts not in evidence. The argument complained of is:

“He said, I can’t tell you in matters of minutes, maybe thirty, maybe forty-five, not more than an hour, sixty minutes. And then he testified that when that injury was inflicted to that heart she died within five minutes. And the defense to this law suit as I think you see it is the girl fell off the bed and fractured her skull. Dr. Petty, as a scientist, said that just didn’t happen.”

The record reflects that this argument was not outside the record. No error is shown.

The motion for rehearing is granted. The judgment is affirmed.

ROBERTS, ODOM, PHILLIPS and CLINTON, JJ., dissent for reasons stated in original opinion.

      . In this case the error was compounded by the prosecutor’s jury argument at the guilt stage of the trial which emphasized this theory for conviction. In opening his argument the prosecutor said:
      “The first paragraph of the charge in this case defines murder. And there is primarily two definitions of murder, a person commits murder if he intentionally and knowingly causes the death of an individual. That means I can plot, plan, lay and wait and shoot somebody, knowingly and intentionally shoot them, that’s murder, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that caused the death of an individual. That’s the definition that applies to this case, doing an act clearly dangerous to health [sic] that results in death, and it’s just most assuredly murder.”
      Later, in concluding his jury argument at the guilt stage, the prosecutor again urged this theory of conviction:
      “When Larry Plunkett was inflicting the injuries on this photograph to April Dawn Peters, when he was beating that girl, when he caused the skull fracture to her head, did he do something that caused her death? Did he do something that caused her death? That’s murder, paragraph one, cause serious bodily injury and commit an act clearly dangerous to human life is murder just bigger than a goose. If it looks like a duck and walks like a duck and quacks like a duck, well, it’s just a duck. Thank you, ladies and gentlemen.”
      (The “paragraph one” referred to by the prosecutor is the abstract statement of the law of murder and tracks Sec. 19.02(a)(1) and (2)).

      . V.T.C.A. Penal Code, Sec. 19.02, as relevant to this discussion, provides:
      “(a) A person commits an offense if he:
      “(1) intentionally or knowingly causes the death of an individual;
      “(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; . . ..”

      . In each of the following cases the theory not alleged in the indictment was included in the affirmative application of the law to the facts. Thus, the jury’s consideration was centered on a finding of guilt if it found facts to exist to support the theory not alleged in the indictment. Smith v. State, Tex.Cr.App., 574 S.W.2d 551; Bridges v. State, Tex.Cr.App., 574 S.W.2d 143; Garcia v. State, Tex.Cr.App., 574 S.W.2d 133; Donald v. State, Tex.Cr.App., 574 S.W.2d 119; Fella v. State, Tex.Cr.App., 573 S.W.2d 548; Brewer v. State, Tex.Cr.App., 572 S.W.2d 940; Whitlow v. State, Tex.Cr.App., 567 S.W.2d 522; Jones v. State, Tex.Cr.App., 566 S.W.2d 939; Edmond v. State, Tex.Cr.App., 566 S.W.2d 609; Shaw v. State, Tex.Cr.App., 557 S.W.2d 305; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Morter v. State, Tex.Cr.App., 551 S.W.2d 715.


author: DALLY, Judge.

text:
    David Owen BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 56288.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 16, 1979.

      Elaine Brady and Jim Skelton, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Donald Lambright, Asst. Dist. Attys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for murder with malice under the former penal code. Art. 1256, V.A.P.C. (1925). Punishment was assessed at imprisonment for life.

Appellant contends that the evidence is insufficient to support the conviction, the law of principals was erroneously submitted to the jury, extraneous offenses were unlawfully admitted in evidence, the admonitory charge concerning the extraneous offenses was improper, an oral confession was admitted in violation of Art. 38.22, V.A.C. C.P., a charge on circumstantial evidence should not have been submitted to the jury, and the trial court erroneously refused appellant’s requested charge on the law of accessories.

The indictment alleges that on or about July 10, 1973, appellant

“. . . unlawfully with malice aforethought kill[ed] William Ray Lawrence by strangling him with a cord and in some manner and by some means, instruments, and weapons to the Grand Jury unknown.”

In its charge, the trial court instructed the jury on the law of principals in the following manner:

“All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present and, knowing the unlawful intent, aid by acts or encourage by words those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principals and may be prosecuted as such. Mere presence alone will not constitute one a principal.
“Therefore, if you find from the evidence beyond a reasonable doubt that Dean Corll and Elmer Wayne Henley, Jr., or either of them, in Harris County, Texas, on or about the 10th day of July A.D. 1973, did then and there unlawfully with malice aforethought kill William Ray Lawrence by strangling him with a cord and in some manner and by some means, instruments, and weapons unknown, if you do so find, and that the defendant, David Owen Brooks, was then and there present at the time and place of the killing and knew of the intent, if any, of said Dean Corll and Elmer Wayne Henley, Jr., or either of them, to kill the said William Ray Lawrence and encouraged by words or aided by acts the said Dean Corll and Elmer Wayne Henley, Jr., or either of them, in the commission of said act, then you will find the defendant, David Owen Brooks, guilty of murder with malice aforethought as charged in the indictment.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.
“You are further instructed that Defendant’s knowledge of the crime coupled with his mere presence at the scene of the killing, if any, would not constitute him a principal, and if you should find from the evidence beyond a reasonable doubt that Dean Corll and Elmer Wayne Henley, Jr., or either of them, did then and there voluntarily kill the said William Ray Lawrence, as aforesaid by strangling him with a cord and in some manner and by some means, instruments, and weapons unknown, but you further find and believe from the evidence, or have a reasonable doubt thereof, that the defendant, David Owen Brooks, did not aid by acts or encourage by words the said Dean Corll and Elmer Wayne Henley, Jr., or either of them, in the commission of said killing then you will find the defendant, David Owen Brooks, not guilty.”

William Ray Lawrence, who was fifteen years old, was last seen alive by his father, James Lawrence, on June 4, 1973. That night, William called his father and told him that he was going fishing with friends, whom he would not name, and would return later in the week. On June 11,1973, James Lawrence received a letter from his son postmarked June 8, in which William indicated that he was seeking employment in Austin and would return later that summer.

The nude body of the deceased was found buried near Lake Sam Rayburn on August 9, 1973. The body was wrapped in plastic sheeting and covered with lime. Dr. Jack Pruitt, a pathologist, testified that the cause of death was strangulation by means of the cord found tied around the neck of the body.

Detective Jim Tucker testified that he took an oral statement from appellant on the morning of August 9,1973. On August 8, Elmer Wayne Henley, Jr., had shot and killed Dean Corll in Pasadena and had subsequently led police officers to a boat house in Houston where eight bodies had been found buried. In his statement, appellant told Tucker that Corll had told him that he, Corll, had killed two boys and buried them at the boat house. Appellant also told Tucker of his discovery, during a visit to Corll’s apartment, of two nude boys tied to Corll’s bed. Finally, appellant told Tucker that he had met Corll when he was in the sixth grade (appellant was eighteen at the time he gave the statement), that Corll had engaged in homosexual activities with many boys, including appellant, that he had introduced Henley to Corll, and that he had lived with Corll intermittently. In this statement to Tucker, appellant said nothing to indicate that he had been present at any murders committed by Corll or Henley.

On August 10, 1973, appellant executed two written confessions, both of which were admitted in evidence. The first reads, in pertinent part:

“I came to the police station on August 9th in order to make a witness statement about what I know about Dean Corll. I came down of my own free will and I gave that statement to Det. Tucker. In the statement what I said was partially the truth but I left out the fact that I was present when most of the killings happened ... I was in the room when they happened and was supposed to help if something went wrong.
“The first killing that I remember happened when Dean was living at the Yorktown Townhouses. There were two boys there and I left before they were killed but Dean told me that he had killed them afterwards. I don’t know where they were buried or what their names were. The first few that Dean killed were supposed to have been sent off somewhere in California.
“The first killing that I remember being present at was on 6363 San Felipe. That boy was Ruben Haney. Dean and I were the only people involved in that one but Dean did the killing and I just was present when it happened.
“I also remember two boys who were killed at the Place One Apartments on Mangum. They were brothers and their father worked next door where they were building some more apartments. I was present when Dean killed them by strangling them but again I didn’t participate.
I believe that I was present when they were buried but I don’t remember where they were buried. The youngest of these two boys is the youngest that was killed I think.
* * * * * *
“A boy by the name of Glass was . killed at the Columbia address. I had taken him home one time but he wouldn’t get out because he wanted to go back to Dean’s. I took him back and Dean ended up killing him. Now that I think about it I’m not sure whether it was Glass that I took home or another boy, but I believe it was Glass.
“It was during the time that we were living on Columbia that Wayne Henley got involved. Wayne took part in getting the boys at first and then later he took an active part in the killings . . . Most of the killings that occurred after Wayne came into the picture involved all three of us.
* * * * * *
“There was another boy killed at the Schuller house, actually they were two at this time. A boy named Billy Balsch and one named Johnny and I think that his last name was Malone. Wayne strangled Billy and he said ‘Hey Johnny’ and when Johnny looked up Wayne shot him in the forehead with a .25 automatic. The bullet came out of his ear and he raised up and about three minutes later he said, ‘Wayne please don’t’. Then Wayne strangled him, and Dean helped.
* * * * * *
“Dean moved to the Frencesa Apartments on Wirt ... At that time I was using Dean’s car so I was in and out all of the time.
“After the Frencesa apartments Dean moved to Pasadena. I know of two that were killed there. One was from Baton Rouge and one was a small blond boy from South Houston. I saw the boy from South Houston for about 45 minutes. I took him a pizza and then I left and he wanted me to come back. I wasn’t there when either of these boys were killed. I did come in just after Dean had killed the boy from Baton Rouge, that was on a different day from the blond boy.
“In all I guess there were between 25 and thirty boys killed and they were buried in three different places. I was present and helped bury many of them but not all of them. Most of them were buried at the boat stall. There were three or four buried at Sam Rayburn, I think, I am sure that there are two up there. On the first one at Sam Rayburn I helped bury them, and then the next one we took to Sam Rayburn when he got there Dean and Wayne found that the first one had come to the surface and either a foot or a hand was above the ground. When they buried this one the second time they put some type of rock sheet on top of him to keep him down.
“The third place that they were buried was on the beach at High Island. This was right off of the Winnie Exit, where that road goes to the beach. You turn east on the beach road and go till the pavement changes, which is about a quarter or half of a mile and the bodies are on the right hand side of the highway about 15 or 20 yards off of the road. I never actually buried one here but I always drove the car. I know that one of the graves had a large rock on top of it. I think that there were 5 or more bodies buried at this location. The bodies at the beach are in a row down the beach for perhaps a half a mile or so. I am willing to show officers where this location is and will try to locate as many of the graves as possible.”

The second confession reads, in pertinent part:

“. . .1 want to give this statement about Billy Ray Lawrence.
“About July 10th, 1973, I tried to call Dean’s house, Dean Corll, and it was a long time before I could get him or anyone to answer. Finally, Wayne answered and I asked him if they had anyone there and he said yes. I asked him ‘It’s not a friend, is it?’ and he said ‘sort of’. He wouldn’t tell me who it was so I went over there just to see who it was. He was still alive when I got there but he was tied to the bed. I recognized him only as a friend of Wayne’s.
“The boy wasn’t doing anything but lying there when I got there. He didn’t have any clothes on. I don’t remember them calling him by name but I have just now been shown a picture of him which I will initial with this date and time and it is the same boy I have been talking about. In fact, I have seen this same picture before at Dean’s house.
“I was tired so I went to bed in the opposite bedroom. Before I did go to bed I took Wayne home. Then I went back to Dean’s house and went to bed. The boy was still alive but Dean was awake because I remember he let me in. The next morning I went back to get Wayne and Dean was supposed to pay me $10.00 for doing this but he never did. That is, the $10.00 was for taking Wayne home the night before.
“I’m not sure about the time but I think it was the next evening when Wayne’s mother called. She was drunk and insisting Wayne come home but he told her no, that he was going to the lake for a couple of days. The boy was still alive. We left about 6:00 p. m. to go to the lake and I know he was dead and in a box when we left so I must have been there when he was killed because I didn’t leave to go anywhere before we left for the lake. [However, I do not remember how he was killed. I don’t know if I saw it or not.] It didn’t bother me to see it. I saw it done many times. [I just wouldn’t do it myself. And I never did do it myself.] “We left for the lake about 6:00 p. m., and got there about 9:30 or quarter to ten. We then went fishing. Wayne and me. This was after we slept. We fished from about 6:30 A.M. to 10:00 A.M. Dean told us he had already picked a spot and started digging, but he actually hadn’t done very much.
“When Wayne and I got back from fishing, we ate and I went to sleep. I slept until about 5:00 p. m. and then Dean and I dug the grave. Wayne was keeping lookout in the van. The spot was by a trench near a dirt road. It was probably a few miles from Lake Sam Rayburn itself.
“We took the body out of the box, that is, Dean did, and I held the boy’s feet about half way to the grave. The body was already wrapped in plastic. I went back to the van to get the carpet and a flashlight. The carpet is to shovel extra dirt on and take it some place else so there wouldn’t be a mound showing.
“I almost took too much dirt off and Dean griped at me for it.”

The photograph referred to in the second confession was admitted in evidence. It was found by police in Corll’s bedroom and identified at the trial by James Lawrence as a photograph of his son, the deceased.

In his first confession, appellant specifically refers to eight murders with which he was familiar: Ruben Haney, two brothers killed at the Place One Apartments, a boy named Glass, Billy Balch, Johnny Malone, a boy from Baton Rouge, and a small blond boy from South Houston. Except for the last two, appellant admitted being present when each of these murders was committed. What follows is a brief summary of the further evidence concerning these murders offered by the State and admitted at the trial.

The body of Ruben Haney, nineteen, was found buried in a Houston boat house rented by Dean Corll; the cause of death was strangulation. Haney’s mother testified that her last conversation with her son was a telephone call in which he told her he was going to spend the night with appellant.

The bodies of Donald and Jerry Waldrop, thirteen and fifteen, were found buried in the boat house; the cause of death in each case was strangulation.

The body of James Glass was found buried in the boat house; the cause of death was strangulation.

The body of Billy Balch, seventeen, was found buried on the beach near High Island; the cause of death was strangulation.

The body of Johnny Delone, eighteen, was found buried at High Island; the cause of death was strangulation and a .25 caliber gunshot.

The body of Stanley Blackburn, twenty, from Baton Rouge, Louisiana, was found buried near Lake Sam Rayburn; the cause of death was strangulation. Blackburn’s Louisiana driver’s license was found in Corll’s house and identified at the trial by his mother.

The body of James Dreymala, thirteen, was found buried at the boat house; the cause of death was strangulation. A bicycle registered to Dreymala and identified at the trial by his father was also found in the boat house. Dreymala’s father testified that his son had blond hair, and at the time of his disappearance the family lived in South Houston.

In each case, the body was nude, wrapped in plastic sheeting, and covered with lime. In most cases, the cord used to strangle the victim was still tied around the neck of the body.

In addition to this testimony, several police officers described in general terms the search for and recovery of bodies at the three burial sites. Although there was no testimony concerning the identity or cause of death of any other victims, all were young males and had been buried in a similar manner.

Under the law of principals set forth in Arts. 65-69, V.A.P.C. (1925), in effect when the charged offenses were committed, there are six different fact situations in which one may be guilty as a principal to a felony offense. They are:

(1) When A. actually commits the offense, but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.
(2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.
(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.
(4) When A. actually commits the offense but B., at the time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.
(5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.
(6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.

Jones v. State, 505 S.W.2d 903 (Tex.Cr.App.1974); Robinson v. State, 493 S.W.2d 780 (Tex.Cr.App.1973); Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046 (1919). In every case, the evidence must show that at the time of the commission of the offense the parties were acting together, each doing some part of the execution of the common purpose. Robinson v. State, supra; Middleton v. State, supra.

In Harrington v. State, 547 S.W.2d 621 (Tex.Cr.App.1977), this Court stated:

“To determine whether an accused was acting as a principal, the trial court may look to events before, during and after the commission of the offense. Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974). While mere presence during the commission of an offense will not make a person a principal, it is a circumstance tending to prove that a person is a principal. Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974). ‘An agreement of partners to act together in a common design can seldom be proven by words, but reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act.’ Everett v. State, 153 Tex.Cr.R. 79, 216 S.W.2d 281 (1949).”

Appellant’s confessions and the other evidence introduced by the State clearly establish an understanding and common design on the part of Corll, Henley, and appellant involving the murder of teenaged boys. In his first confession, appellant states that he was present when most of the killings committed by Corll and Henley took place, and that he was supposed to help if something went wrong. In this confession, appellant refers to several murders at which he was present and which occurred prior to the murder of William Lawrence. The State introduced evidence showing that these murders were similar to that of Lawrence in terms of the age of the victim, the cause of death, and the manner in which the body was buried.

In his second confession, appellant admitted being present when William Lawrence was killed. From this, and from his description of his role in the burial of the body, the jury could reasonably infer that appellant, knowing the unlawful intent of Corll and Henley, had been present when William Lawrence was murdered and prepared, as he had been in the prior murders, to provide assistance to Corll and Henley if something went wrong. Such conduct falls within the first, second, fourth and sixth fact situations set forth in Jones v. State, supra. We hold that the trial court acted properly in charging the jury on the law of principals and that the circumstantial evidence is sufficient to support appellant’s conviction as a principal to the murder of the deceased.

Contrary to appellant’s contention, the statement in the second confession that “. . .1 went over there just to see who it was . . .’’is not an exculpatory statement which would prohibit a finding of guilt. Even if the statement is accepted as true, it does no more than explain why appellant went to Corll’s house. The statement is not inconsistent with a finding that appellant was a principal to the murder of the deceased. See Richards v. State, 511 S.W.2d 5 (Tex.Cr.App.1974).

Appellant contends that the trial court failed to apply the law of principals to the facts of the case. He also contends that the charge on the law of principals comments on the weight of the evidence because it instructs, without qualification, that Corll and Henley killed the deceased while appellant was present. A reading of the court’s charge on the law of principals, previously quoted, discloses that both of these contentions are factually incorrect; no further discussion is necessary.

Appellant contends that the trial court erred by permitting the introduction of evidence of his homosexual activities with Corll and of murders other than that of the deceased. He contends that this was evidence of extraneous offenses and therefore inadmissible.

The general rule against admitting evidence of other crimes by the accused is inapplicable if such evidence logically tends to show his guilt of the offense charged. In other words, relevant evidence that tends to prove that the accused committed the crime charged is not inadmissible simply because it may also reveal that he has committed other crimes. McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Johnston v. State, 418 S.W.2d 522 (Tex.Cr.App.1967). Among other things, evidence of extraneous offenses by the accused has been held admissible to prove scienter, where intent or guilty knowledge is an essential element of the State’s case and cannot be inferred from the act itself, and to show the accused’s motive, particularly where the charged offense is part of a continuing plan or scheme. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

Evidence that appellant knew of and had been present during other murders by Corll and Henley, had been prepared to help if something went wrong, and had assisted in the burial of these other victims was admissible to prove that appellant was aware of Corll’s and Henley’s intent to murder the deceased, an essential element of the State’s case. Moreover, this evidence, together with appellant’s confession that he had been present when the murder of the deceased took place and had assisted in the burial, was admissible to prove that appellant had aided and encouraged Corll and Henley in the commission of the murder, another essential element of the State’s case. Finally, evidence of the other murders and of appellant’s long-standing relationship with Corll and Henley was admissible to show that the murder of the deceased was part of a continuing scheme on the part of Corll, Henley, and appellant, and was evidence of appellant’s motive in remaining at Corll’s house on the days in question.

The trial court gave the following charge on extraneous offenses:

“You are further instructed that if there is any testimony before you in this case regarding the defendant’s having committed offenses other than the offense alleged against him in the indictment, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any were committed, and even then you may not consider the same unless you find and believe beyond a reasonable doubt that there is such a concurrence of common features between the several crimes in which the defendant was involved as a principal, as hereinbe-fore defined, as will show logically that all of them might well have resulted from a common plan or systematic course of action. If you do so believe beyond a reasonable doubt, you may only consider the same in determining the motive, or intent, if it does, in connection with the offense, if any, alleged against him in the indictment, and for no other purpose.”

Appellant contends that the trial court erred in submitting this charge over his objection because it does not apply the law to the facts of the case. Appellant cites no pertinent authority for this contention. The charge given by the trial court is similar to that regularly given by the courts of this State. See Morrison and Blackwell, Willson’s Texas Criminal Forms Annotated, Sec. 88.05 (8th ed., 1977); McClung, Jury Charges for Texas Criminal Practice, p. 248 (rev.ed., 1979). The charge applies the law to the facts of the case to the extent it is possible to do so without commenting on the weight of the evidence. This ground of error is overruled.

Appellant contends that the statement he gave to Detective Tucker on August 9, and Tucker’s trial testimony based thereon, was inadmissible under Art. 38.22, V.A.C.C.P. In order to evaluate this contention, we must examine the circumstances in which the statement was made.

The evidence establishes that appellant, his father, and his uncle went to the office of Lieutenant J. D. Belcher of the Houston police on the morning of August 9. News reports concerning the shooting of Corll by Henley, and of the subsequent discovery of bodies at the boat house, had begun during the previous day. Appellant told Belcher, who was a friend of his uncle, that he had information concerning Henley. Belcher contacted the homicide division, and Tucker was assigned the task of taking a witness statement from appellant.

It is undisputed that appellant was not advised of his rights under Arts. 15.17 and 38.22, V.A.C.C.P., prior to taking the statement. However, it is also undisputed that appellant had gone to the police voluntarily and was not under arrest at the time he made the statement. Moreover, Tucker testified that he had not been involved in the Corll-Henley case prior to his conversation with appellant on August 9, that appellant was not suspected at that time of any involvement in the case other than as a witness, and that appellant had been free to go when he completed his statement. Tucker further testified that it was not until after appellant completed his statement that the Houston police were informed of statements by Henley to the Pasadena police implicating appellant in the murders.

The evidence clearly establishes that appellant’s statement to Tucker was elicited prior to arrest and was not the result of a custodial interrogation. Appellant went to the police voluntarily. There is no evidence that the police were aware of appellant’s involvement in the murders or that appellant had become the focus of police investigation. Under the circumstances, Tucker’s testimony concerning appellant’s August 9 statement was not barred by Art. 38.22, supra. See Cunningham v. State, 488 S.W.2d 117 (Tex.Cr.App.1972); Graham v. State, 486 S.W.2d 92 (Tex.Cr.App.1972); cf. Creeks v. State, 542 S.W.2d 849 (Tex.Cr.App.1976).

In addition to charging on the law of principals, the trial court gave the following charge on circumstantial evidence:

“In this case the State relies for a conviction upon circumstantial evidence.
“In order to warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt; all the facts (that is, the facts necessary to the conclusion) must be consistent with each other and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, acting as a principal as hereinbe-fore defined, ' committed the offense charged. It is not sufficient that the circumstances coincide v/ith, account for, and therefore render probable the guilt of the defendant; they must exclude every other reasonable hypothesis except that of the defendant’s guilt, and unless they do so beyond a reasonable doubt you will find the defendant not guilty.”

Appellant contends that the circumstantial evidence charge should not have been given since there was no circumstantial evidence of his guilt. He contends that the State relied on direct evidence, appellant’s confessions, to prove his guilt. However, in his confessions appellant merely described other murders at which he had been present in case anything went wrong, and that he had been present when the deceased was killed. In order to find appellant guilty as a principal, it was necessary for the jury to infer from the evidence that he had played his usual role in the charged murder. Hence, it was not error for the trial court to give the circumstantial evidence charge. See Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1977, Opinion on Appellant’s Motion for Rehearing); Daniels v. State, 574 S.W.2d 127 (Tex.Cr.App.1978). Moreover, the circumstantial evidence charge is a defendant’s charge; in effect, it increases the State’s burden of proof. Since giving the charge was not calculated to injure appellant’s rights or otherwise deny him a fair trial, the error, if any, does not require reversal of the conviction. Art. 36.19, V.A.C.C.P.

Appellant contends, without citation of authority, that the circumstantial evidence charge given by the trial court was a comment on the weight of the evidence because the court did not apply the law of circumstantial evidence to the facts of the case. This contention is without merit. Not only was the charge as given not a comment on the weight of the evidence, but any effort to apply the law of circumstantial evidence to the facts would inevitably have constituted such a comment.

Finally, appellant contends that the trial court erred by refusing his requested charge on the law of accessories. The charge requested by appellant reads as follows:

“You are further instructed that an accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence. One who aids an offender in making or preparing his defense at law, or procures him to be bailed though he afterwards escape, is not an accessory. Therefore, if you find that the Defendant, DAVID OWEN BROOKS is an accessory, or have a reasonable doubt thereof you should acquit the Defendant and say so by your verdict ‘not guilty’.”

Appellant contends that the statements in his second confession to the effect that he never actually killed anyone, that he had gone to Corll’s house on July 10 “just to see who it was,” and that he helped bury the deceased raised the issue of his guilt as an accessory and the jury should have been instructed on the definition thereof. As authority, appellant cites Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972) and Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974), each of which holds that a charge on a lesser included offense must be given if raised by the evidence.

Under the former penal code, being an accessory is not a lesser included offense of being a principal. Each is a separate and distinct offense, and a conviction as an accessory cannot be had under an indictment, such as the one in the instant case, charging the defendant as a principal. Art. 77, V.A.P.C. (1925); Lopez v. State, 170 Tex.Cr.R. 208, 339 S.W.2d 906 (1960); Taylor v. State, 113 Tex.Cr.R. 16, 18 S.W.2d 1078 (1929).

In State v. Banks, 24 Ariz.App. 369, 539 P.2d 173 (1975), the defendant was convicted of robbery, armed robbery, and kidnapping. On appeal, he contended that the trial court had erred in refusing his requested charge on accessories. In overruling this contention, the Court of Appeals of Arizona wrote:

“. . . A.R.S. Sec. 13-141 (as amended 1969) defines accessories as follows:
‘All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person or persons charged or convicted or whom they have reason to believe committed a felony, are accessories.’
⅛ ⅜ * * * *
“Having once conceded his presence at the scene, and knowledge of the commission of the crime, appellant cannot claim that he was an accessory after the fact. While the distinction between accessories before the fact and principals has been abolished, A.R.S. Sec. 13-138, and the phrase ‘after the fact’ has been dropped from the definition of accessory, A.R.S. Sec. 13-137, it is clear that in order to be entitled to accessory status, the crime must have been completed outside the presence of the person claiming such status. We find this implicit in the wording of A.R.S. Sec. 13-141. The dropping of the phrase ‘after the fact’ did not change the substance of the crime, but merely trimmed surplusage no longer necessary.”

The holding in Banks, that a defendant who is present when the crime is committed is not entitled to accessory status, is in accord with the greater weight of authority. See Skelley v. United States, 76 F.2d 483 (10th Cir. 1935); Channell v. Coiner, 297 F.Supp. 1005 (N.D.W.Va.1969); United States v. Anthony, 145 F.Supp. 323 (M.D.Pa.1956); State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273 (1955); State v. Roberts, 50 W.Va. 422, 40 S.E. 484 (1901); 1 Anderson, Wharton’s Criminal Law and Procedure, Sec. 102 (1957); Ehrlich, Ehrlich’s Blackstone, p. 752; 22 C.J.S. Criminal Law Sec. 95. Cf. Smith v. United States, 113 U.S.App.D.C. 126, 306 F.2d 286 (1962); White v. People, 81 Ill. 333 (1876).

Although this Court has never expressly addressed itself to this point, the following statement appears in Weaver v. State, 112 Tex.Cr.R. 546, 17 S.W.2d 1066 (1929):

“Appellant was indicted as a principal, and under such an indictment he could not be convicted upon testimony showing either that he was an accomplice, an accessory, or a receiver of stolen property. Bean v. State, 17 Tex.App. 60; Silvas v. State, 71 Tex.Cr.R. 213, 159 S.W. 223; Golden v. State, 18 Tex.App. 637; Menefee v. State, 67 Tex.Cr.R. 201, 149 S.W. 138.
“The rule has been aptly stated as follows:
‘If the defendant in a felony case is indicted as a principal only and there is evidence that he was not present when the offense was committed, he is entitled to have the jury affirmatively instructed that they cannot convict him on proof that he was either an accomplice or accessory or both, or that he was a receiver of stolen property when indicted only for theft.’ Branch’s P.C. Sec. 682.” (Emphasis added.)

Since appellant confessed to being present when the deceased was murdered, the trial court did not err in refusing his requested charge on accessories.

The trial court instructed the jury to convict appellant if they found beyond a reasonable doubt that he was a principal to the murder of the deceased. The trial court also instructed the jury in the converse: if they found from the evidence, or had a reasonable doubt, that appellant did not aid or encourage the murder of the deceased, they must find the appellant not guilty. The charge as given adequately protected the rights of appellant, and for this reason, also, the failure to give the requested charge was not error. White v. State, 385 S.W.2d 397 (Tex.Cr.App.1964); Lopez v. State, supra; Jones v. State, 167 Tex.Cr.R. 72, 318 S.W.2d 444 (1958); Spradling v. State, 42 S.W. 294 (Tex.Cr.App.1897).

The judgment is affirmed.

      . The deleted passages were not offered in evidence by either the State or appellant.

      . The bracketed passages were not offered in evidence by the State, but were subsequently offered by appellant.