source: Caselaw Access Project

author: MORRISON, Judge. ODOM, Judge. ROBERTS, Judge

license: Public Domain

text:
    Ernest Benjamin SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 49809.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    On Appellant’s Motion for Rehearing July 14, 1976.

      John F. Simmons, Dallas, for appellant.
    Henry Wade, Dist. Atty., James B. Scott, Douglas D. Mulder, Stephen P. Tokoly and Winfield W. Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, under Article 1257, V.A.P.C. and Article 37.071, V.A.C.C.P., death.

The record reflects that grocery store operator William Moon was killed during the commission of a robbery at his market.

By ground of error one appellant contends that the evidence is insufficient to support the conviction, since it was the appellant’s co-defendant who killed the deceased during the robbery. Such a contention completely ignores the law of principals, and is without merit. Thompson v. State, Tex.Cr.App., 514 S.W.2d 275; Leviness v. State, 157 Tex.Cr.R. 160, 247 S.W.2d 115.

Appellant’s next contention relates to the punishment hearing. Appellant claims that the evidence is insufficient to support the jury’s answer of “yes” to Special Issue No. 2 of Article 37.071, supra.

This appellant testified that he had been unable to obtain a regular job since his conviction for possession of marihuana in 1970, and that he was unemployed on the night of the homicide when he met George Holden and Howie Ray Robinson at the Pussy Cat Lounge. He stated that Holden asked if he wanted to make some money and that from his prior knowledge of Holden that he was not a “working individual”, he knew that whatever Holden proposed would not be legal. Appellant testified that after he agreed to go with them he went to his home, changed clothes and got a pistol. He also stated he knew Holden had a pistol, which he gave to Robinson. They then went to the grocery store, where appellant and Robinson entered and Holden remained in the automobile. When appellant and Robinson found customers in the store; they left and did not re-enter until after the customers had left. At this point, appellant pointed the pistol at the attendant and told him, “This is a hold-up.” When the attendant made a motion “behind his jacket”, appellant called to Robinson, who shot and killed the attendant. We pause here to observe that it was this appellant who first pointed his weapon at deceased and attempted to shoot him. It was only after the appellant’s gun misfired that he called to his co-principal to complete the killing which he had attempted. Following this, all the money, including the change, and a pistol kept by the attendant were taken, and the parties repaired to the house of a friend, where the fruits of the robbery were divided and the parties separated. Appellant spent the night in a house nearby.

Appellant’s oral confession was also admitted into evidence.

Dr. James P. Grigson, a practicing psychiatrist appointed by the court to examine appellant, testified that his examination had led him to conclude that the appellant, though medically and legally sane, felt no remorse or sense of guilt as the result of his participation in this robbery-murder. Grig-son also expressed the opinion that appellant’s conduct in the future would not change. He further stated that his branch of medical science had found no cure for persons who were suffering from the type of personality disorder demonstrated by appellant.

Though not a serious one, this appellant had a criminal record. Of extreme importance is his apparent surrender to misfortune following his marihuana conviction. He made no effort to rehabilitate himself, and no serious effort to secure steady employment. There was no evidence that appellant was in any way under the domination of anyone, nor was he under any mental or emotional pressure. He simply went out to rob and was the first person who tried to kill his victim (according to his oral confession). After the killing, he testified, he paused long enough to secure a pistol from under the counter and when a cigar box containing coins spilled, he paused to recoup the coins. His entire conduct was calculated and remorseless, and the jury was justified in finding that this appellant will always constitute a continuing threat to society.

Appellant’s third ground of error also relates to the punishment hearing. Appellant first charges that the court erred in failing to submit his requested charges five and seven, which were intended as substitutes for Special Issues one and three of Article 37.071(b), supra, and second he claims that the evidence is insufficient to support the jury’s finding of “yes” to Special Issues Nos. 1 and 3. This is clearly a multifarious ground of error and presents nothing for review.

However, we will briefly discuss the contention. In substance, appellant contends, without citation of authority, that Special Issues 1 and 3 are not applicable to one charged as a principal. To agree with such contention would require that we ignore this Court’s interpretation of the law of principals. Earlier in the opinion we declined to do so. Further, regarding the sufficiency of the evidence, the facts set forth under ground of error two are sufficient to support the jury’s affirmative responses to Special Issues Nos. 1 and 3.

By ground of error four, appellant claims that the indictment is fatally defective because it fails to set out the elements of robbery in his indictment charging him with murder during the commission or attempted commission of robbery. Appellant contends that the indictment should allege the elements of robbery as well as murder.

Appellant’s contention was answered adversely to him in Jones v. State, 53 Tex. Cr.R. 131, 110 S.W. 741, and Oates v. State, 48 Tex.Cr.R. 131, 86 S.W. 769, which hold that an indictment need not allege the constituent elements of a felony which the defendant was committing or attempting to commit at the time of the homicide charged in the indictment. See also Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785; Watts v. State, Tex.Cr.App., 516 S.W.2d 414; Earl v. State, Tex.Cr.App., 514 S.W.2d 273, which hold that under the new code an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense.

In grounds of error five and six, appellant attacks the constitutionality of Article 1257, supra, Sec. 19.03, V.T.C.A., Penal Code, and Article 37.071, supra. His contentions have been answered adversely to him in our recent opinion in Jurek v. State, Tex.Cr.App., 522 S.W.2d 934.

Appellant also contends that the caption of the death penalty statute under which he was tried, Article 1257, supra, fails to meet the requirements of Article III, Sec. 35, of the Texas Constitution in that it “embraces more than one subject, and is therefore insufficient to apprise the Legislature and the public of the full effect of the amendment.”

Appellant’s brief contains no citation of authority, and no discussion of his contention. Without further elaboration from him, we are unable to meet appellant’s contention other than to observe that the caption covers the one subject legislated upon by the Act.

Appellant’s seventh and ninth grounds of error will be discussed together. In the seventh ground of error appellant asserts that Article 1257(d), V.A.P.C., imposes “an unrealistic, repressive oath on prospective jurors and limits inquiry into their qualifications” required by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. As we construe the statute it neither imposes a repressive oath on prospective jurors nor prohibits the inquiry which appellant claims he was denied. However, the appellant does not call to our attention any portion of the record where he was denied an opportunity to make such inquiry.

Appellant seems to be laboring under the impression that Article 1257(d), supra, in itself constitutes an oath to be administered in its own terms to each venireperson. Our interpretation of this statute is that it merely provides one criteria by which each venireperson is to be qualified. This is in agreement with that portion of Witherspoon set forth at 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, footnote 21.

In his ninth ground of error appellant says that the trial court “erroneously allowed the exclusion for cause of veniremen who had scruples concerning capital punishment.” Upon rebriefing on orders of this Court, appellant now points out certain named members of the venire who he claims were inadequately examined and excused because of their views as to the death penalty. We have now examined the voir dire to which appellant points and find that they were tested in accordance with the terms of Article 1257(d), supra, and were additionally questioned so as to substantially comply with the mandate of footnote 21 of Witherspoon. This venire qualification can be distinguished from Hovila v. State, Tex.Cr.App., 532 S.W.2d 292 (Decided April 30, 1975), where the voir dire complied neither with Witherspoon nor with the mandate of Article 1257(d), supra. The questions propounded by the court to each jury panel were leveled solely as to the answers to the issues set forth in Article 37.071(d), supra, and not to the ability of the venire-persons to pass upon the guilt or innocence of the accused or “any issue of fact.”

Ground of error eight charges the State used its peremptory challenges to strike four members of the venire who were black, thereby excluding members from the jury who were the same race as appellant.

Appellant’s contention was answered adversely to him in Hill v. State, Tex.Cr.App., 487 S.W.2d 64, in which we adhered, as we do here, to our earlier holding in Ridley v. State, Tex.Cr.App., 475 S.W.2d 769, wherein we stated:

“We hold that no systematic exclusion has been shown. To hold otherwise would in effect be abolishing our peremptory challenge practice which has always been a part of our system to help an accused as well as the State obtain an impartial jury and a fair trial.”

See also Brown v. State, Tex.Cr.App., 476 S.W.2d 699; Hardin v. State, 475 S.W.2d 255. Cf. Jaquez v. State, Tex.Cr.App., 473 S.W.2d 530. See also Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866.

Grounds 10 and 11 relate to the admission at the guilt-innocence stage of the trial of evidence of extraneous offenses both prior and subsequent to the date charged in the indictment. Both consisted of proof that appellant possessed a pistol in a public place and nothing more. Proof of the possession of a pistol by appellant prior to the robbery might be justified as in rebuttal to his testimony that he “didn’t own a pistol”, but the testimony as to the subsequent possession should not have been admitted.

It is this continued persistence in making borderline error that causes certain counties in this State to have a much worse reversible error record than others. But regardless of this, we must determine if this proof, in the light of the case as a whole, constitutes reversible error.

The proof is clear, and appellant fully admits in his testimony that he went armed into a convenience store with his companion, who was also armed, and that in the course of the ensuing robbery, the store attendant was shot and killed.

We conclude as we did in Mabry v. State, Tex.Cr.App., 492 S.W.2d 951, that the evidence of appellant’s possession of a pistol without more was not of sufficient gravity to have influenced a jury who had heard the testimony of this brutal robbery-murder. See also McNeal v. State, Tex.Cr.App., 499 S.W.2d 173, and 13B Tex.Dig., Criminal Law

Appellant next contends that the trial court erred in submitting murder with malice in his charge to the jury at the guilt-innocence phase of the trial. Citing Brazile v. State, Tex.Cr.App., 497 S.W.2d 302, appellant claims the type of murder, whether during the commission of a robbery or with malice, relates only to the question of punishment, and was therefore erroneously submitted to the jury at the trial on the merits. No error is shown. Lee v. State, Tex.Cr.App., 503 S.W.2d 244; Caraway v. State, Tex.Cr.App., 489 S.W.2d 106.

In a capital case, it was incumbent upon the court to submit the issue of murder with malice in his charge on the guilt-innocence phase of the trial in order to avoid a trifurcated trial. Any other submission would have required a finding of guilt as to murder at the guilt-innocence stage of the trial, a finding of guilt of murder with malice at a second stage of the trial, and a finding that the offense was committed under the circumstances outlined in Article 37.071, supra, at a third stage of the trial. This was not contemplated by the Legislature.

Appellant’s last ground of error relates to seven separate instances in which the trial court overruled appellant’s motion for mistrial following certain questions and remarks made during the trial. Appellant contends that the net cumulative effect of these incidences, viewed in light of the severity of the punishment, requires reversal.

The seven incidences were:

1. It is appellant’s contention, if we understand the same, that the witness Mitchell was guilty of perjury. We are not told exactly where the alleged perjury occurred, in what respect such testimony was false, or how it was called to the trial court’s attention. We are at a loss to answer this assertion. This contention does not meet the requirements of Article 40.09, Sec. 9, V.A.C.C.P., and presents nothing for review. Hurd v. State, Tex.Cr.App., 513 S.W.2d 936; Peterson v. State, Tex.Cr.App., 508 S.W.2d 844.

2. Appellant asserts that the court erred in permitting Dr. Grigson, a psychiatrist, to testify when his name had not been listed in compliance with appellant’s motion in limine to list all of the State’s witnesses to be used in its case in chief. We have concluded that since Dr. Grigson was called in rebuttal, he did not come within the purview of appellant’s motion. Since Dr. Grigson had examined appellant prior to trial, his appearance as a witness in rebuttal did not surprise appellant.

3. The appellant further asserts that the prosecution violated the court’s order on his motion in limine referring to the appellant as “Dirty Red”. The record reflects at the point indicated by the appellant’s brief that the witness’ answer which contained the name was unresponsive and upon objection the same was sustained and the court on its own motion instructed the jury to disregard the answer. A prompt instruction to disregard is usually sufficient to cure error. No reversible error is reflected. Pearson v. State, Tex.Cr.App., 500 S.W.2d 829; Terry v. State, Tex.Cr.App., 481 S.W.2d 870.

4. Appellant asserts that the prosecutor referred to an extraneous offense when he propounded to the appellant the question: “You’ve had plenty of experience with lawyers, haven’t you? ” The objection “as being an improper remark” was sustained and the jury was instructed not to consider the question. The record reflects that the prosecutor’s question came just after the appellant testified that he had pled guilty to the charge of possession of marihuana upon the advice of his counsel. In view of the prompt action of the court, no error is shown. See Pearson v. State, supra.

5. Appellant next complains of the State’s admonition, “Don’t answer until your lawyer has an opportunity to object.” The objection was that the remark was improper, which the court sustained by stating, “No comment, please”, and then instructed the jury not to consider the statement. No error is shown.

6. Appellant complains of a question by the State but does not cite the portion of the record where it was asked. Nothing is presented for review. Peterson v. State, supra.

7. The last contention is that error is reflected by a question propounded to the appellant regarding the gun he had in his possession at the time the offense occurred. The question was, “If it was somebody else’s, you know, you would have stolen it.” The objection to the question was sustained and the jury was instructed not to consider the same. Rodgers v. State, Tex.Cr.App., 486 S.W.2d 794.

We overrule appellant’s contention that the cumulative effect of the occurrences constituted reversible error.

Finding no reversible error, the judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

The opinion concurring in part and dissenting in part on original submission, by the writer, is withdrawn.

The questions that concerned the writer regarding the constitutionality of Art. 37.-071(b)(2), V.A.C.C.P., have been laid to rest by the Supreme Court of the United States in Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929, 19 Cr.L. 3282. See also Gregg v. Georgia, - U.S. -, 96 S.Ct. 2909, 49 L.Ed.2d 859, 19 Cr.L. 3250, and Proffitt v. Florida, - U.S. -, 96 S.Ct. 2960, 49 L.Ed.2d 913, 19 Cr.L. 3276.

The motion for rehearing is overruled.

ROBERTS, Judge

(concurring).

My dissenting opinion on original submission is withdrawn. The Supreme Court of the United States has resolved the questions I had about the constitutionality of Art. 37.071(b)(2), Vernon’s Ann.C.C.P., in Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 48 L.Ed.2d -, 19 Cr.L. 3282 (1976). See also Gregg v. Georgia, - U.S. -, 96 S.Ct. 2950, 48 L.Ed.2d -, 19 Cr.L. 3250 (1976), and Proffitt v. Florida, - U.S. -, 96 S.Ct. 2960, 48 L.Ed.2d -, 19 Cr.L. 3276 (1976).

I agree that the motion for rehearing should be overruled.

      . This offense was alleged to have been committed on 29th day of September 1973. This was during that period of time when Article 1257 was in operation and before Sec. 19.03 became effective.

      . Article 37.071(b)(2) states:
      “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

      . At the trial, appellant testified he shouted, “Look out, Howie”, as the deceased made the motion. However, in appellant’s oral confession, which was admitted into evidence, appellant stated that he said, “Get him”, to Robinson after his own gun misfired.

      . Appellant has attached to his brief what he denominates as a “Supplemental Transcript”. This “transcript” contains the testimony of one of the State’s witnesses at another and later trial, which appellant claims is materially different from that testimony given at his trial. The “transcript” is not properly a part of this record on appeal and cannot be considered by this Court. Booth v. State, Tex.Cr.App., 499 S.W.2d 129.

      . Article 37.071(b)(1) and (3), supra, state:
      “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
      (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

      . “We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.”

      . With the exception of venirepersons Baker and Switch, all those mentioned in appellant’s brief were tested, as we construe their examination, in accordance with the terms of Article 1257(d), supra.
      Baker, a “gospel minister”, in the course of his examination, stated:
      “Q Are you saying your religion would prevent you from personally being on a death penalty case?
      A Yeah.”
      Switch, an employee of a hospital, answered, “Death is something that I would not be able to condemn anybody to.” He stated that this was because of his profession.


author: DOUGLAS, Judge. ROBERTS and ODOM, JJ., ONION, Presiding Judge

text:
    Robert Booker CARMOUCHE, Appellant, v. The STATE of Texas, Appellee.
    No. 50354.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Rehearing Denied Sept. 15, 1976.

      Marvin 0. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Alvin Titus, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the possession of not more than two ounces of marihuana. Punishment was assessed by the court at thirty days.

Appellant contends that the evidence is insufficient to support the conviction.

On December 14, 1973, Officer J. M. Vaughn received information from an informant that he had seen a cigar box containing marihuana in appellant’s apartment. The informant gave Officer Vaughn appellant’s address in Houston and a description of his car.

Vaughn and two other officers met the informant at the apartment complex. Appellant and a female companion, a Miss Mclntire, were loading their belongings into a trailer when the officers arrived. Appellant and his companion drove away. After they had driven about three or four hundred yards on the Gulf Freeway, the officers stopped them and searched the car. During the search, Vaughn found a cigar box containing a half ounce of marihuana.

The evidence is sufficient to show that appellant possessed the marihuana found in the car.

It is contended that the proof does not show that there was a usable amount of marihuana found. The evidence shows that there was a half ounce of marihuana in the cigar box. There was no direct testimony that this was a usable amount.

The Legislature apparently recognized that one fourth ounce of marihuana was a usable amount when it adopted Section 4.05(f) of the Texas Controlled Substances Act. It provides:

“An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one fourth ounce or less without receiving remuneration.”

It would be difficult, if not impossible, to conceive that a half ounce of any leafy substance would not be sufficient to make several cigarettes.

We conclude that the evidence is sufficient to establish that appellant possessed a usable quantity of marihuana. See People v. Locke, 274 Cal.App.2d 541, 79 Cal.Rep. 367 (4th Cir., Div. 1, 1969).

Complaint is made that the trial court erred in failing to require the State to disclose the identity of the informant. Officer Vaughn testified that the informant saw a cigar box containing marihuana in the apartment. Officers met the informant at the apartment complex. The informant and Officer Vaughn watched appellant and Mclntire load their belongings into a car. The informant left before appellant was arrested.

The Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, wrote:

“. . . The purpose of the privilege (informant’s privilege) is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
“. . . The problem (of disclosure of informant’s identity) is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. . . .”

The identity of an informant need not be disclosed unless (1) the informant participated in the offense; (2) was present at the time of the offense or arrest; (3) was otherwise shown to be a material witness to the transaction or as to whether appellant knowingly committed the act charged. Barber v. State, 511 S.W.2d 937 (Tex.Cr.App.1974); Enriquez v. State, 501 S.W.2d 117 (Tex.Cr.App.1973); Bueno v. State, 501 S.W.2d 339 (Tex.Cr.App.1973); Sessions v. State, 498 S.W.2d 933 (Tex.Cr.App.1973). See also Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). In the instant case the informant was not present at the time appellant was arrested nor was the informant a participant in the offense. Appellant contends, however, that the informant was a material witness because the informant would have established whether appellant knowingly possessed the marihuana found in the cigar box. The informant told Officer Vaughn that he saw marihuana in appellant’s apartment. Marihuana was found in appellant’s car.

Even if it could be assumed that the informant could testify that appellant knowingly possessed marihuana in the apartment, this would not make him a witness to the possession of marihuana in the car.

Appellant relies upon James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973). In James, the informant brought the defendant and the undercover agent together and was present when the sale was consummated. The informant in the instant case was neither present at the time of the offense nor did he initiate or participate in the offense. The James case is not applicable.

We hold that the trial court did not err in refusing to require the State to disclose identity of the informant.

Appellant next contends that the trial court erred in allowing Officer McDonald to testify that the substance found in the cigar box was Cannabis Sativa L. McDonald testified that the cigar box contained marihuana. We recently held in Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975), that the Texas Controlled Substances Act prohibits possession of all species of marihuana. Thus, McDonald’s testimony that the cigar box contained marihuana was sufficient to establish that the substance found in the cigar box was marihuana as that term is defined in the Texas Controlled Substances Act.

In sixteen grounds of error, appellant contends that the arrest and subsequent search were not based upon probable cause.

Officer Vaughn testified that the informant, who had provided him with accurate information on prior occasions, told him that appellant possessed marihuana in the apartment that day. The informant related that he had seen it in a cigar box. He also related to the officer that appellant was then loading his car and preparing to leave town. Shortly after the officers arrived at the apartment complex, they saw the appellant and another loading a trailer and then drive away.

There was 'sufficient evidence for the trial judge to conclude that the informant was reliable and there were enough underlying facts and circumstances to establish probable cause. Rangel v. State, 444 S.W.2d 924 (Tex.Cr.App.1969).

There was sufficient evidence before the judge for him to conclude that the officers did not have time to obtain a warrant and the arrest and search of the car without a warrant were authorized. See Truitt v. State, 505 S.W.2d 594 (Tex.Cr.App.1974).

No error has been shown. The judgment is affirmed.

ROBERTS and ODOM, JJ.,

dissent for the reasons stated in the dissenting opinion in Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App., this day decided).

ONION, Presiding Judge

(concurring).

For the reasons stated in Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.), this day decided, I concur in the results.


author: DALLY, Commissioner.

text:
    Phyllis Ann STERNLIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 51402.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.

      Richard C. Milstead, Big Spring, on appeal only, for appellant.
    Tim Curry, Dist. Atty. and Marvin Collins, Asst. Dist. Atty., Port Worth, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; the punishment is imprisonment for 10 years.

The appellant complains of (1) the court’s charge on self-defense, (2) the admission in evidence of bloody photographs of the deceased’s body, (3) the prosecutor’s alleged improper interrogation of a character witness, and (4) the court’s refusal of a mistrial after the prosecutor asked a question alleged to be improper.

The appellant’s complaint about the court’s charge concerns the law of self-defense under V.T.C.A. Penal Code, sec. 9.31 and Sec. 9.32, which in pertinent part provide:

“Sec. 9.31

“(a) ... a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.”
“Sec. 9.32. A person is justified in using deadly force against another:
“(1) if he would be justified in using force, against the other under Section 9.31 of this code;
“(2) if a reasonable person in the actor’s situation would not have retreated; and
“(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
“(A) to protect himself against the other’s use or attempted use of unlawful deadly force; . . .

It is asserted that the charge on self-defense was erroneous because it failed to instruct the jury that the statutory duty to retreat was necessary only if she had the ability and opportunity to retreat. It is also asserted that the charge submitted to the jury was a comment on the weight of the evidence because it was assumed the appellant had the ability and opportunity to retreat. An objection to the charge was made at the time of trial, and the error, if any, was properly preserved.

One of the most drastic changes made in the new penal code is that before deadly force may be used in self-defense the actor (defendant) is required to retreat if a reasonable person in the actor’s (defendant’s) situation would have retreated. V.T.C.A. Penal Code, Sec. 9.32(2). A brief consideration of the history of the doctrine of retreat is in order.

Retreat was not necessary to the right of self-defense in this state prior to the new penal code which became effective January 1,1974. In fact, the statute provided it was not necessary to retreat. See Article 1225, V.A.P.C. (1925). See Cooper v. State, 49 Tex.Cr. 28, 89 S.W. 1068 (1905); Renn v. State, 64 Tex.Cr. 639, 143 S.W. 167 (1912); Prater v. State, 142 Tex.Cr. 626, 155 S.W.2d 934 (1941); Lopez v. State, 152 Tex.Cr. 562, 216 S.W.2d 183 (Tex.Cr.App.1948).

The charge in Renn v. State, supra, was:

“In this connection, you are instructed that one who is unlawfully attacked is not bound to retreat, in order to avoid the necessity of killing his assailant, but has the right to stand his ground, and even to advance on his adversary, and continue to act in self-defense until the danger or apparent danger is past, and to repel the unlawful attack of his assailant with whatever force may reasonably appear to him at the time to be necessary; but when it appears to defendant that such danger or apparent danger, if any, ceases, then such right ceases.”

The provision of the new penal code that we are considering, which departs from our former law, is a codification of the old common law. Mr. Justice Oliver Wendell Holmes in the opinion he authored in Brown v. United States, 256 U.S. 335, 41 S.Ct. 501, 65 L.Ed. 961; 18 A.L.R. 1276 (1921), said the doctrine of retreat had ossified into a specific rule without much regard for reason. In Brown v. United States, supra, a murder case which occurred in Texas and of which the federal courts had jurisdiction, it was said:

“ . . . Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not exceeded the bounds of lawful self defence. That has been the decision of this Court. Beard v. United States, 158 U.S. 550, 559, 15 Sup.Ct. 962, 39 L.Ed. 1086 [1090, 9 Am.Crim.Rep. 324]. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him. Rowe v. United States, 164 U.S. 546, 558, 17 Sup.Ct. 172, 51 L.Ed. 547 [551]. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex.Cr. 28, 38, 89 S.W. 1068. Baltrip v. State, 30 Tex.App. 545, 549, 17 S.W. 1106.”

The common law doctrine of “retreat to the wall” or “retreat to the ditch” was first recognized before the use of guns when the weapons used were fists, sticks and knives. The doctrine is discussed at length in textual material. See Anderson, Wharton’s Criminal Law and Procedure (1957), Sec. 235, et seq.; 40 C.J.S. 1010 Homicide § 127, et seq.; 40 Am.Jur.2d 449, Homicide, Sec. 162, et seq.

In this case the court charged the jury that:

“Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful force.
.“A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force, and if a reasonable person in defendant’s situation would not have retreated.”

We have decided that the instruction on the law of retreat drafted in the language of the statute is sufficient. This 'may place a heavy burden on the word “situation,” but it is á word the meaning of which is generally understood. “Situation” means a combination of circumstances at a given moment. The instruction given required the jury in deciding the issue on self-defense to determine whether the appellant had the ability and opportunity to retreat considered as a part of all of the circumstances of the moment. See and compare, State Bar of Texas, Texas Criminal Pattern Jury Charges (1975), Sec. 9.32; Morrison and Blackwell, New Texas Penal Code Forms, p. 110, Sec. C 9.32A., 1 Branch’s 3rd ed. 344, Sec. 9.32.

Next, the appellant says that gruesome, bloody photographs of the deceased’s body were erroneously admitted in evidence, because they were merely repetitious of the medical examiner’s testimony, they did not help resolve any disputed issue, and they were offered solely to inflame the jury.

If a verbal description of the body and the scene of the offense is admissible, photographs depicting the same are also admissible. See e.g., Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972); Knoppa v. State, 505 S.W.2d 802 (Tex.Cr.App.1974); Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974); Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1976). We hold the photographs depicting the body and the scene of the offense were properly admitted in evidence.

The appellant also contends that the trial court erred in permitting the prosecutor, over proper objection, to inquire of appellant’s reputation witness of a specific act of misconduct in such a manner as to imply that the alleged act was true. This is the question propounded by the prosecutor of which complaint is made:

“Mr. Cunningham, have you heard that the defendant in this case was arrested for attempted murder back in the early part of 1973?”

This question was properly framed and a witness attesting to the good reputation of the accused may be asked on cross-examination whether he has heard of acts of the accused inconsistent with that good reputation to test the witness’s knowledge, if the prosecutor asks the question in good faith believing it has some basis in fact. See King v. State, 491 S.W.2d 132 (Tex.Cr.App.1973); Gaines v. State, 481 S.W.2d 835 (Tex.Cr.App.1972).

The appellant contends finally that the prosecutor’s asking of a question, although not answered, was reversible error. After the court had sustained an objection, a question was asked that was calculated to elicit the same evidence as the earlier question to which the objection had been sustained.

A witness who had been with the appellant immediately preceding the killing testified she followed the appellant from a lounge onto the parking lot. There she heard the appellant say to the deceased, “Here, take this.” The witness then saw the appellant shoot the deceased. She testified the deceased stopped walking, said nothing, did not hit the appellant, and raised his hand one time after the appellant had started shooting at him.

At a noon recess during the trial in the presence of the prosecutor, the appellant’s trial counsel talked with the witness before she testified. She did not tell the attorney she had followed the appellant onto the lot and saw the appellant shoot the deceased. She told defense counsel she had remained inside the lounge and did not see the appellant shoot the deceased. On the witness stand the witness admitted she had not told appellant’s counsel the truth. On redirect examination the prosecutor asked the witness why she had not told the appellant’s counsel the truth. The witness said she was afraid. An objection was sustained. Thereafter, the prosecutor asked, “Well, Gladys, as a matter of fact, state whether or not you were afraid of Phyllis [appellant]?” Before an objection was made, the court instructed the jury to disregard the question. The court then removed the jury and severely admonished the prosecutor for asking the question. The error, if any, was cured by the court’s prompt action. See Fuller v. State, 501 S.W.2d 112 (Tex.Cr.App.1973); Ortiz v. State, 490 S.W.2d 594 (Tex.Cr.App.1973).

Moreover, the State may well have been entitled to have the question answered. An impeached witness is generally entitled to explain a contradictory statement. See Williams v. State, 88 Tex.Cr. 87, 225 S.W. 177 (1920); Denmark v. State, 95 Tex.Cr. 413, 254 S.W. 954 (1923); Ayres v. State, 105 Tex.Cr. 15, 284 S.W. 960 (1926); Kitchen v. State, 101 Tex.Cr. 439, 276 S.W. 252 (1925).

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Harry Kent COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 51793.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.
    Larry Watts, Houston, for appellant.
    Tom Hanna, Dist. Atty. and Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession • of heroin. After a verdict of guilty by the jury, punishment, enhanced by two prior felony convictions, was set at life.

The record reflects that on September 26, 1973, appellant and his brother, Roger Glenn Cook, entered Cliff’s 7-11 Store in Port Arthur and bought some groceries. Roger took a package of lunch meat by putting it in his pants and walking out without paying for it. Following store policy, the manager allowed the men to leave and then called the police. Officer LeBlanc responded and filed an offense report on the incident. The report shows that the manager said the automobile which the two men left in was a tan Chrysler product, model unknown.

On September 28, 1973, appellant and his brother Roger returned to the store and were recognized by the manager. The manager asked another customer to call police. The customer flagged down Officer Golden as he passed in a patrol car. The manager told the officer that the two men who had just left the store were the same ones who had stolen some ham from him a couple of nights before. Officer Golden went out to talk tq the two men who were sitting in appellant’s car, a ’66 black over white Chrysler product. Roger was in the driver’s seat, and appellant was seated on the passenger side. The officer determined by radio that there was an outstanding arrest warrant for Roger Cook, spoke to a Sergeant Fontenot, and was instructed by the sergeant to arrest the two men for shoplifting. Roger Cook obtained the manager’s permission to park the car on the side of the store and parked and locked it. In the meantime, Officer Brough arrived and was advised by Sergeant Fontenot over the radio to bring the car to the station.

Officer Brough drove the automobile to the jail garage and Officer Golden took the Cook brothers to jail. Officer Golden booked the Cooks into jail, and then went to the garage and inventoried the contents of the car. Under the front seat on the driver’s side he found a white paper sack containing cotton balls, a brown bottle full of a clear liquid, and two syringes. In the open ashtray he found an Anacin bottle containing a piece of foil rolled up and pinched on each end. The foil appeared to him to be a “paper” of heroin. The “paper” could be seen without opening the bottle. Chemical analysis determined that the foil in fact contained heroin.

Appellant’s brother Roger testified in appellant’s behalf at trial. Roger testified that it was he and he alone who possessed the heroin and that appellant knew nothing of it. Roger testified that he had already been tried for the offense, found guilty, and sentenced to seven-and-a-half years.

Appellant contends “that the argument by State’s attorney was so prejudicial and inflammatory as to pervert the jury system and it was reversible error for the Court below to deny Defendant’s motion for a mistrial.”

The State responds to this contention by urging that appellant “has failed to comply with Article 40.09, Sec. 9, Y.A.C.C.P. by advocating several different objections to the argument in the same Ground of Error” and that appellant “is ambiguous and nonspecific.”

Article 40.09, Sec. 9, further provides, “. . . if the court upon consideration of such ground of error in the light of arguments made in support thereof in the brief, can identify and understand such point of objection the same shall be reviewed notwithstanding any generality, vagueness or other technical defect that may exist in the language employed to set forth such ground of error.”

The record reflects that the prosecutor argued as follows at the guilt stage of the trial:

“There is a nineteen-seventy decision of the United States called P¡erce vs North Carolina. Pierce versus North Carolina says this: if a man is convicted in a court of law and sentenced to so many years confinement in the penitentiary and if he is granted a new trial, on his second trial he cannot get any more years—
“MR. JAMAIL [defense counsel]: Your Honor, I object to this.
“MR. DOYLE [prosecutor]: —in the penitentiary than he got on his first trial. “MR. JAMAIL: What he is trying to do is inform the jury about some matter which has nothing to do with this man’s innocence or guilt.
“THE COURT: Counsel, that is not a matter that is a subject for argument here.
“MR. JAMAIL: I want the jury instructed, Your Honor—
“MR. DOYLE: Your Honor, motive of Roger’s testifying is very much—
“THE COURT: That matter is not in evidence whatsoever and the jury will disregard the argument.
“MR. DOYLE: Your Honor, may I approach the Bench?
“THE COURT: You can approach the Bench, sure.
“(At this point there was an off-the-record discussion between the Court and counsel at the Bench, after which time proceedings were resumed as follows, to-wit):
“MR. JAMAIL: Your Honor, I have to make — for the purpose of the record — I know you have instructed the jury but I do need to make a motion for a mistrial.
“THE COURT: Denied.
“MR. JAMAIL: Note my exception. Thank you, Your Honor, for your instruction.
“MR. DOYLE: Roger Cook has not got one thing to lose—
“MR. JAMAIL: Your Honor, we have just been through that.
“THE COURT: Wait a minute. That’s overruled.
“MR. DOYLE: He can come in here and lie and tell any story he wants to. Roger Cook, under no circumstance will ever again be convicted and get more than seven and a half years in the Texas Department of Corrections.
“MR. JAMAIL: Your Honor, that’s not—
“THE COURT: Overruled. I didn’t mean to answer you before you stated your proposition but I was sure what it was. State it.
“MR. JAMAIL: I don’t know how the Judge knew what I was going to say. “THE COURT: Take it for granted that I did.
“MR. DOYLE: He is not a savior. He’s not anybody who would come in here as a ' sacrificial lamb and throw himself to the dogs to save his brother because it ain’t costing him nothing. Not a penny. Not a day.
“MR. JAMAIL: Your Honor, that’s a mistake because he could be found innocent if he is given a new trial.
“THE COURT: Overruled.”

The thrust of the prosecutor’s argument appears to be that appellant’s brother Roger could never receive more than seven- and-a-half years in the event of retrial under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and therefore there was no reason to keep him from lying about possession of the heroin. The prosecutor’s statement about Pearce is incorrect in that the Supreme Court’s holding in Pearce is not nearly so broad as represented by the prosecutor.

While the court sustained counsel’s first objection and instructed the jury to disregard the prosecutor’s first argument relative to Roger Cook never being able to receive more than seven-and-a-half years, the record reflects that the prosecutor persisted in making such argument over appellant’s objection.

A statement by counsel of what purports to be the law when same is not contained in the court’s charge is improper argument. The error here was further compounded when the prosecutor’s argument was an incorrect statement of the law and such error in the statement of the law was to the obvious detriment of the appellant. See Kincaid v. State, Tex.Cr.App., 534 S.W.2d 340.

The record reflects that in addition to the foregoing argument the prosecutor argued:

“If you don’t see what’s going on in this trial because — well, I think you probably know by now. You ought to know. But unfortunately criminal trials are not quests for truth or justice. They are methods used by persons to escape the consequences of their acts.
“MR. JAMAIL [defense counsel]: Your Honor, I object to that. That is a direct attack upon the Court.
“THE COURT: No. Members of the jury, disregard the argument.”

The court’s instruction to disregard the foregoing argument did not remove the harm done in view of the prosecutor's continued remarks characterizing what had transpired as a “rude fake” and telling the jury that in deliberating “you will see what has been attempted by this defendant and Roger to deceive you and walk a man out of this courtroom on some sort of crud, I guess you would call it.” See Anderson v. State, Tex.Cr.App., 525 S.W.2d 20. In response to appellant’s objection to the latter argument, the court admonished the jury to disregard the work “crud” and the prosecutor then inquired of the court if he could use the word “bull.”

There was nothing in the record to support the prosecutor’s prediction that in the event of retrial, “He [Roger] can sit here again, just like he did the last time, and all that he said in this courtroom will not be admitted against him.” See Cook v. State, Tex.Cr.App., 537 S.W.2d 258.

The prosecutor further argued:

“I don’t know how to argue a case like this. It turns my stomach. I hope you can see through what is going on. There is nothing in the law that says you are not required or that you can’t do that and I hope to God you can.”

The appellant’s objection to the foregoing argument was overruled.

In the same vein, the prosecutor argued that for the jury to find appellant not guilty, “. . . you have got to just about disregard every conceivable honorable thought that you could ever have. .” The appellant objected to such argument as “appealing to prejudice” and the court instructed the jury to disregard the word “honorable.”

The instant case was submitted to the jury on the law of circumstantial evidence. Appellant was seated on the passenger side of the front seat of the car and in establishing knowing care, custody and control of the contraband the State necessarily had to rely on evidence that the bottle containing the heroin was in an open ashtray on the dashboard and syringes and cotton balls were found under the front seat on the driver’s side.

The errors in the prosecutor’s argument heretofore reviewed cannot be characterized as harmless, and we conclude the prosecutor’s conduct denied the appellant a fair trial. See Anderson v. State, supra; Ruth v. State, Tex.Cr.App., 522 S.W.2d 517; Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Renn v. State, Tex.Cr.App., 495 S.W.2d 922; Stein v. State, Tex.Cr.App., 492 S.W.2d 548.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . Upon appeal, the judgment of conviction in Roger Glenn Cook’s case arising out of the facts detailed herein was reversed and the cause remanded as the result of the prosecutor’s argument. Cook v. State, Tex.Cr.App., 537 S.W.2d 258.

      . The holding in North Carolina v. Pearce does not apply to jury imposed harsher sentences on retrial so long as the jury is not informed of the prior punishment and so long as the last punishment inflicted is not shown to be the product of vindictiveness. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714; Curlin v. State, Tex.Cr.App., 505 S.W.2d 889; Fairris v. State, Tex.Cr.App., 515 S.W.2d 921. Further, a harsher punishment assessed by a judge is not violative of Pearce where the reasons for the increased punishment affirmatively appear in the record and are based upon conduct of the defendant occurring after the original sentencing.


author: GUPTON, Judge.

text:
    Arthur LYMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 51836.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.

      James J. Crook, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and William J. Ellis, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

This is an appeal from convictions for two counts of aggravated robbery under V.T. C.A., Penal Code, Sec. 29.03, joined under V.T.C.A., Penal Code, Sec. 3.02(a). The court assessed punishment at 25 years on each count, the sentences to run concurrently-

The record was approved in the trial court on August 22, 1975. On October 16, 1975, appellant filed a motion for extension of time in which to file the brief until November 1,1975. This request was granted by the trial court; however, appellant’s brief was not filed until November 6, 1975. See Coleman v. State, Tex.Cr.App., 530 S.W.2d 823; Gowans v. State, Tex.Cr.App., 522 S.W.2d 462.

A review of the record indicates the sufficiency of the evidence to corroborate the accomplice witness testimony should be discussed as unassigned error. See Art. 40.09, Sec. 13, V.A.C.C.P.

The evidence reflects on November 17, 1974, at about 6 p. m. a man and his wife were robbed and abducted from their recreational vehicle, escorted into the desert, forced to partially disrobe, and shot two or three times in the head. State’s witness Plourde admitted committing these acts of violence and implicated appellant.

Plourde testified he and appellant met in Pennsylvania and traveled together to Texas. They decided to rob and to steal a camper to sell later in New Mexico. They spotted the complaining witnesses’ Winnebago in a rest area and appellant told Plourde, “That’s our camper.” Appellant gave Plourde a loaded pistol and waited until Plourde returned with the camper. Appellant, driving his car, and Plourde, in the Winnebago, proceeded toward the Union 76 Truck Stop. After a few miles, Plourde thought the camper was running out of gas and he signaled appellant to stop. Appellant pulled off the road and walked back to the Winnebago and agreed to stop for gas. Shortly thereafter, the Winnebago stalled and appellant told Plourde not to stop again. Appellant took some money from Plourde during one of these stops. As Plourde entered the driveway of the truck stop, he was arrested.

The non-accomplice witness testimony can be summarized as follows. Appellant’s black over yellow Dodge Charger with Utah license plates was seen at the rest area by Mr. Wardrop, one of the injured parties, immediately before the alleged offense. However, Mr. Wardrop did not see anyone in or near the car. Twice during the robbery and attempted murder Plourde mentioned he had a buddy with him, but Mr. and Mrs. Wardrop neither saw nor heard another person.

Officer Lee stated that he saw appellant’s car parked on the side of the road in front of the Winnebago motor home shortly after the offense. He saw two men standing by the road talking. Officer Lee was not close enough to make an identification of the man who sped off in the Dodge Charger as he approached the scene. Officer Lee followed the Winnebago to the Union 76 Truck Stop and he arrested Plourde around 7:15 p. m. Appellant drove to the scene of the arrest and inquired as to what was going on. Appellant was then taken into custody as a material witness. Other officers with the El Paso County Sheriff’s Office conducted a thorough search of both vehicles.

A search of the trunk of appellant’s car revealed a red windbreaker with a human head hair on it. An expert witness testified the possibility that the hair came from someone other than Mrs. Wardrop was remote. Inside the windbreaker was a Pennsylvania hunting license issued to accomplice witness Plourde. In the dashboard ashtray of appellant’s car was found a partial box of .22 caliber long rifle cartridges (State’s Exhibit 55). The 16 cartridges in the box were analyzed and tested along with State’s Exhibit 22, a Harrington and Richardson .22 caliber revolver that was found in the Winnebago and identified by Plourde as the gun appellant gave him, and State’s Exhibit 56, three live rounds and three expended .22 hulls that were in the revolver at the time it was seized by police. The State also introduced, as State’s Exhibit 32, a partially mutilated .22 caliber bullet that was recovered from the white slacks Mrs. Wardrop was wearing at the time of the offense. Special Agent Asbury of the FBI testified that the rifling impressions on State’s Exhibit 32 were the same type of impressions as those on bullets that had been test fired from State’s Exhibit 22. He said that State’s Exhibit 32 was either fired from State’s Exhibit 22 or from another weapon which produces the same type rifling impressions as to number of lands and grooves and direction of twist. He stated that the three cartridge cases in State’s Exhibit 56 were fired from State’s Exhibit 22 to the exclusion of all other weapons in the world. He further testified that State’s Exhibit 32 was similar in all observable characteristics to the cartridges found in appellant’s automobile and the live rounds in the revolver.

Special Agent Riley, also of the FBI, conducted a neutron activation analysis test on a sample of lead from State’s Exhibits 55 and 56. One of the three live rounds in the revolver matched one of the 16 cartridges removed from appellant’s automobile. The mutilated bullet (State’s Exhibit 32) was of similar composition to one of the 16 cartridges (State’s Exhibit 55) and could have come from the same source of lead or from another source of lead having the same composition.

Numerous other scientific tests were conducted. Hairs found under the grips of the pistol exhibited the same microscopic characteristics as hairs taken from Mrs. War-drop. Blood samples and papers found in appellant’s automobile were analyzed, but the results of these tests were of little if any, probative value. Two latent fingerprints lifted from the Dodge Charger matched known prints of Plourde and three latent prints were identified as being appellant’s. No prints were recovered from the Winnebago.

Witness Highfield testified she and her husband were at the rest area at approximately 5:30 p. m. on the day of the alleged offense. She saw two men in a car which looked like appellant’s car as it was depicted in photographs introduced by the State. She could not identify appellant as being one of the men in the car at that time.

Officer Gomez transported appellant and Plourde from the Union 76 Truck Stop to the police station. He testified without objection that the following occurred:

“Q Did he [appellant] say anything or state anything with reference to the person that you had in custody, Mr. Plourde? A Yes, sir. En route down there he asked defendant Plourde if he knew him and said, ‘Say, buddy, why don’t you tell this man here’?
Q And what else did he say?
A He advised Mr. Plourde to — he said, ‘Say, buddy, look do I know you? Why don’t you tell this man here that I have never seen you before’? ‘Are you one of the hitchhikers I have picked up here a couple of days ago’? At this time I advised him to keep quiet and just sit there.”

Gomez further stated that he saw appellant and Plourde motioning to each other later as Gomez was taking a statement from Plourde in the sheriff’s department. Gomez demonstrated the gestures and said at the time it indicated to him the two men knew each other. Gomez later interpreted Plourde’s gesture to be asking appellant where Plourde’s wallet was and appellant’s gesture indicated he had thrown it away.

The issue is whether there is incul-patory or incriminating evidence which tends to connect appellant with the commission of the offense. Possession by the accused of fruits of the crime tends to connect him with the commission of the crime and may be sufficient corroboration of accomplice witness testimony. Edwards v. State, Tex.Cr.App., 427 S.W.2d 629. The evidence would not be sufficient corroboration if it merely showed the commission of the offense or that the accomplice and appellant were together shortly before or shortly after the commission of the offense. Art. 38.14, V.A.C.C.P.; Runkle v. State, Tex.Cr.App., 484 S.W.2d 912 (Dissenting Opinion). However, the corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

In Edwards, supra, defendant was placed in the presence of the accomplice witness near the scene of the crime at or about the time of its commission in the early morning hours without any reasonable explanation therefor. Defendant immediately thereafter traveled to Hamilton and then to San Antonio, which was considered flight. Although defendant was not in possession of any fruits of the crime, he was with the accomplice the day after the crime in a pawn shop trying to sell a gun that had belonged to the deceased. This was held sufficient evidence to corroborate the accomplice witness testimony.

In Runkle, supra, defendant was found in a box car on the only train that had stopped at the point along the tracks where a body was found. In the box car were found a receipt bearing deceased’s name, a pocketknife, a comb, a fingernail clipper, and loose change. Blood spots were found on the wall of the box car and outside the door. Bloody paper and broken wine bottle pieces were found in the box car and beside the body. In holding the circumstantial evidence sufficient to link the accused to the crime, this Court stated, “The corroborative evidence presents circumstances from which a reasonable juror could infer that appellant was at the place where the crime was committed at the time such crime was committed.” Runkle, supra, at page 915.

In Rodriquez v. State, 508 S.W.2d 80, this Court held evidence which placed defendant in the company of the accomplice witness across the street from where the murder occurred shortly before its commission and testimony as to the description of one of the assailants which was consistent with defendant’s physical appearance at the time of the offense sufficient corroboration of the accomplice witness testimony. As in Edwards, the offense occurred in the early morning hours.

We find the non-accomplice testimony in the instant case presents circumstances from which a reasonable juror could infer that appellant had been in the rest area with Plourde at or near the time of the robbery and that appellant had been in possession of the instrumentality of the crime, the .22 caliber revolver, shortly before the commission of the offense. The evidence also shows that appellant was with Plourde immediately after the commission of the offense and appellant had possession of the accomplice’s windbreaker with the injured party’s hair. Although appellant did not attempt to flee, but rather voluntarily approached the police, appellant did try to deny that he knew accomplice witness Plourde. This evidence tends to connect appellant with the commission of the offense and is sufficient corroboration of the accomplice witness testimony.

The judgment is affirmed.


author: BROWN, Commissioner.

text:
    Thomas Henry MOTON, Appellant, v. The STATE of Texas, Appellee.
    No. 52086.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.
    Floyd W. Freed, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Phyllis M. Bell and Robert Ross, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for aggravated rape. Appellant was tried before a jury which found him guilty. Punishment was assessed by the trial court at fifty (50) years in the Texas Department of Corrections.

In his first ground of error appellant asserts that the trial court erred in assessing his punishment at fifty years because the court considered testimony concerning two extraneous offenses which were not final convictions.

Appellant timely elected to have the court assess his punishment pursuant to Art. 37.07, V.A.C.C.P. During the punishment phase of the trial the defendant called a psychiatrist to testify about special work being done with sexual offenders in the Texas Department of Corrections. The doctor gave his opinion about the probability of rehabilitation under this special program and about the effects of a long sentence on possible recidivism. The court then queried the doctor about his opinion concerning the relationship between the seriousness of a crime and the length of the sentence. The court then noted the possible range of punishment for aggravated rape and commented that “the testimony has shown in this case that on several other occasions after this offense that the Defendant did the same act upon minors, on children . . .” It is this reference which appellant contends is indicative that the court was considering the extraneous offenses which were not final convictions. We cannot agree.

The comment was made to test the doctor’s opinion on the seriousness of a crime and the relative value of long sentences as opposed to short sentences in the rehabilitation of criminals. The trial court is presumed to have disregarded any inadmissible evidence. Branch v. State, 465 S.W.2d 160 (Tex.Cr.App.1971). The sentence of fifty years is within the permissible range of punishment for aggravated rape, a first degree felony. V.T.C.A. Penal Code, Sec. 12.32. Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974).

Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the trial court erred “in that the defendant was arraigned in the presence of the jury.” This ground of error is wholly without merit. We have reviewed the record and find that the court properly arraigned the appellant out of the presence of the jury in accordance with Art. 26.11, V.A.C.C.P. A jury was then impanelled and the indictment was read in their presence by the State’s prosecuting attorney in accordance with Art. 36.01, V.A.C.C.P., and appellant properly entered his plea in the presence of the jury.

Appellant’s second ground of error is overruled.

In his third ground of error appellant contends that the evidence is insufficient to show penetration. The prosecutrix testified that appellant was the man who had raped her, who had forced her to have sexual intercourse with him at gunpoint. She was asked by the State’s attorney if appellant “put his private part in your private part” and prosecutrix responded “yes.” The medical report from the hospital where the prosecutrix was examined within two hours of the rape indicated the presence of sperm in the vaginal area. We find the evidence sufficient to show penetration. Sherbert v. State, 531 S.W.2d 636 (Tex.Cr.App.1976); Clay v. State, 518 S.W.2d 550 (Tex.Cr.App.1975).

Appellant’s third ground of error is overruled.

In his fourth and final ground of error appellant contends that the medical records of Ben Taub Hospital were inadmissible because they were not properly authenticated under Art. 3737e, V.T.C.A. Mildred Srkala, custodian of medical records for Ben Taub Hospital, testified that the records were under her care, custody and control at Ben Taub Hospital; that they were prepared in the regular course of business at the hospital; that they were prepared at the time of the examination of the prosecutrix by a physician who examined her. The records were properly authenticated. Gassett v. State, 532 S.W.2d 328 (Tex.Cr.App.1976); Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975).

Appellant’s fourth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Simmie McCALL, Appellant, v. The STATE of Texas, Appellee.
    No. 52122.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.

      Milton E. Douglas, Jr., Wichita Falls, for appellant.
    Henry J. Anderson, County Atty., Wichita Falls, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for cruelty to animals under V.T.C.A. Penal Code, Section 42.11. Appellant was tried before a jury which found him guilty. Punishment was assessed by the trial court at three hundred-fifty dollars ($350) fine and ninety (90) days in the Wichita County jail. Imposition of sentence was suspended and appellant was placed on probation for a period of one year.

The record reflects that Miss Tony De-Stefano, a member of the Humane Society of Wichita Falls, went to a plot of property in that city which was under the control of appellant. Appellant was keeping approximately twelve dogs on the property and, based on her observation of the animals, Miss DeStefano filed a complaint with the Wichita County Attorney alleging that the animals .were not being property cared for. Appellant was charged by information with intentionally and knowingly failing unreasonably to provide necessary food and care for an animal in his custody, to-wit: one Harlequin Great Dane dog. Miss DeStefa-no stated that she returned to appellant’s property and with the help of other members of the Humane Society took all of the animals into custody and removed them to the Society’s animal shelter where they were fed and treated for tick infestations and various other symptoms. At the trial the State introduced testimony of two local veterinarians who participated in the treatment of the animals. Both men testified that they observed symptoms of severe malnutrition, anemia and parasitic infestation in all of the animals. They also stated that in their opinion the animals had not been properly cared for. Based on all of the evidence, the jury returned a verdict of guilty.

In his first ground of error appellant challenges the constitutionality of V.T.C.A. Penal Code, Section 42.11. Specifically, appellant contends that Section (a)(2) is unconstitutionally vague and indefinite. That portion of the statute states that:

“(a) a person commits an offense if he intentionally or knowingly:
“(2) fails unreasonably to provide necessary food, care, or shelter for an animal in his custody;”

Appellant relies on the case of Cinadr v. State, 108 Tex.Cr.R. 147, 300 S.W. 64 (1927) for the proposition that Article 1374 under the Penal Code of 1925 was unconstitutionally indefinite. That statute made it an offense to “overdrive,” “torture,” or “needlessly mutilate or kill” any animal. It also stated that a person committed an offense if “having the charge or custody of any animal” he “unnecessarily fails to provide it with proper food, drink, or cruelly abandons it.” This Court did not, as appellant contends, strike down the entire statute.

The defendant in Cinadr, supra, was charged and convicted under the clause of the statute which condemns “needlessly killing” an animal. This Court held that “the language chosen in the statute under consideration to define the offense of which the appellant is convicted is not deemed such as to meet the requirements of the statutory and constitutional provisions” requiring a penal statute to be framed so as to apprise an accused of the nature of the offense with which he is charged. However, this Court further stated that the statute named a “number of other offenses in which the language chosen is probably not subject to the criticism that it is indefinite.”

It was only that portion of the statute which referred to “needlessly killing” an animal which was held unconstitutional. Although the decisions applying Article 1374 are not numerous, this Court subsequently upheld other provisions of the statute in decisions after Cinadr, supra. Barnett v. State, 117 Tex.Cr.R. 358, 35 S.W.2d 441 (1932). The statute was subsequently repealed upon passage of the new penal code provisions which enumerate six specific offenses under the heading of “Cruelty to Animals.” Section (a)(2) quoted above is substantially the same as that portion of Article 1374 which condemned a person “having the charge or custody of any animal” who “unnecessarily fails to provide it with proper food, drink or cruelly abandons it.” We find that Section (a)(2) sufficiently informs an accused of the nature and cause of the accusation against him and that it is not unconstitutionally indefinite.

Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the “search” of his property by the Humane Society and the subsequent “seizure” of the animals violated his Fourth Amendment rights and that the admission into evidence of photographs of the animals was error because such photographs were the fruits of an illegal search and seizure.

We note that State’s exhibits one through five depicting the Harlequin Great Dane named in the information were introduced during the direct examination of Miss De-Stefano and were admitted without objection by appellant. At the end of direct examination, the court excused the jury for lunch and appellant asked that Miss DeStefano be retained on the witness stand so that appellant could develop the facts surrounding the “search and seizure” of the animals. A hearing was held out of the presence of the jury during which Miss DeStefano stated that she had received a telephone complaint about the animals and that she and another Humane Society member went to the scene on April 15 and walked about the property examining the animals. She then went to the county attorney to “see what he could do about it.” The complaint and information were filed on April 23. On that same day, the animals were seized.

Following this hearing appellant filed his motion to suppress exhibits one through five, which the trial court properly overruled. It is clear that appellant’s motion to suppress the photographs of the Great Dane was not timely and that appellant waived his complaint as to their admissibility. McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976); Sonderup v. State, 418 S.W.2d 807 (Tex.Cr.App.1967).

Appellant later took the stand and testified that the dogs belonged to him and that he cared for them and that he and his son fed them daily and sometimes two or three times daily. He stated that he used tick insecticide, ointments, and antibiotics to treat the animals he thought were ill. He said that he thought the Great Dane had distemper and that he was treating her with antibiotics and that she would not eat for this reason.

Miss DeStefano was recalled to the stand so that the State could offer into evidence exhibits six through twenty which were photographs of several other dogs. These dogs were also in an emaciated condition and were located on appellant’s property with the Great Dane. Before the offer of these exhibits appellant again requested a hearing outside the presence of the jury and, anticipating the introduction of the photographs, objected on the basis that they portrayed “uncharged misconduct” and were, therefore, inadmissible. The State responded that the photographs were admissible as extraneous offenses to show intent. The trial court overruled appellant’s objections and the photographs were admitted to show appellant’s intent. Appellant was granted a continuing objection to the photographs based on the court’s ruling. The first of these photographs was introduced and then appellant asked the court if he had a continuing objection “as made earlier today concerning the Great Dane concerning the seizure.” The court’s response was “oh, yes you may.”

Appellant now complains on appeal that the introduction into evidence of exhibits six through twenty was error because they (a) constituted extraneous offenses and (b) they were the result of an illegal search and seizure. Appellant presents no authority to support contention (a) and, indeed, the great weight of authority is contrary to appellant’s contention. Whether appellant intentionally failed to care for the animals became a contested issue by the appellant’s testimony. The rebuttal testimony and photographs of the other animals were clearly admissible. Allen v. State, 533 S.W.2d 352 (Tex.Cr.App.1976) and cases cited therein.

This brings us to the question of whether this evidence was illegally obtained. First, we note that the “search” on April 15 and the “seizure” on April 23 were both conducted by the Humane Society or persons acting in their capacity as members of the society and not by police officers. Miss DeStefano testified that the county attorney advised her that the Humane Society was authorized to seize the animals under Art. 184, V.A.C.S. The statute was repealed after the seizure of the animals in the instant case, but appellant concedes that Miss DeStefano may have had the authority to take charge of the animals. It is appellant’s contention that once the animal is properly seized by a “civil authority” for the purpose of protecting the life of the animal, any evidence concerning the animal would not be admissible in a criminal proceeding. To allow the admission, appellant contends, would place the civil authority under Article 184 in direct conflict with the constitutional rights guaranteed under the Fourth Amendment. It is the determination of this Court that the search in the instant case was not unreasonable.

We find that in the present case a police officer could have done what Miss DeStefano did. It is well recognized that the Fourth Amendment protects people and not places. What a person knowingly exposes to the public is not subject to Fourth Amendment protection. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,19 L.Ed.2d 576 (1967). A search means, of necessity, a quest for, a looking for, or a seeking out of that which offends against the law. This implies a prying into hidden places for that which is concealed. It is simply not a search to observe that which is open to view. Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973); Long, supra.

Appellant kept the dogs in an open field clearly in view of neighbors and passersby. If it was apparent that the animals were not being properly cared for in possible violation of the law, it was not unreasonable to go onto the property and seize them and the introduction into evidence of photographs of the animals was not error.

Appellant’s second ground of error is overruled.

In his third ground of error appellant contends that the trial court erred in permitting a veterinarian, the State’s expert witness, to testify that, in his opinion, the Great Dane had not been cared for properly. Appellant’s objection to the testimony is that it invades the province of the jury, an objection which we have previously held to be “long dead.” Cox v. State, 523 S.W.2d 695 (Tex.Cr.App.1975); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972). There was no other objection made at the trial, for example, that the testimony was a “conclusion of law” and, therefore, nothing more is presented for review.

Appellant’s third ground of error is overruled.

In his final ground of error, appellant complains of jury argument by the prosecutor to the effect that “the people of this community will know what your verdict is” and that he was “shoving the ball” into the hands of the jury and that “a law cannot be enforced without the action of this jury.” Appellant contends that such statements are more than a mere plea for law enforcement.

Appellant’s contention is without merit. The argument is substantially the same as that approved by this Court in Smith v. State, 418 S.W.2d 683 (Tex.Cr.App.1967). See also Luna v. State, 461 S.W.2d 600 (Tex.Cr.App.1971).

The judgment is affirmed.

Opinion approved by the Court.


text:
    Robert Woodrow FARMER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52152.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.

      Richard E. Banks, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., John Tatum and Brian Blessing, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant in a trial before the court was convicted of the felony offense of escape and his punishment was assessed at six (6) years in the Texas Department of Corrections.

Appellant was arrested and jailed in Dallas for the offense of unauthorized use of an automobile which had been stolen in Garland. W. E. Heeter, a Garland Police Officer, went to Dallas and transported appellant from the Dallas jail to the Garland jail where appellant was booked for unauthorized use of an automobile. Shortly before noon the next day Heeter went to the Garland jail which was in the basement. He removed appellant from his jail cell and took appellant to an interrogation room on the first floor of the building. Appellant was dressed in white jail coveralls. After obtaining a written statement from appellant, Heeter stepped into the next room to obtain a civilian to witness the signing of the statement by appellant. As Heeter left the interrogation room he heard a door slam, and upon looking back into the room appellant was no longer in it. Heeter ran into the hall and saw appellant going out the back door of the building. Heeter called for appellant to halt but appellant ran from the building and across the lawn and entered a drainage ditch. Heeter and an Officer Sullivan chased appellant down the ditch and finally apprehended him about 200 yards from the jail building. At his trial appellant stipulated in writing that he was arrested in Dallas for unauthorized use of a motor vehicle and remained under arrest for this offense while in the custody of Officer W. E. Heeter.

Appellant’s first ground of error asserts that “the indictment charging appellant with unlawful escape was substantially defective in that it did not allege the capacity of W. E. Heeter and thus did not provide notice to appellant of the offense alleged

V.T.C.A. Penal Code, Sec. 38.01(2), defines custody:

“ ‘Custody’ means detained or under arrest by a peace officer or under restraint by a public servant pursuant to an order of the court.”

Since the indictment alleged that appellant escaped from the custody of W. E. Heeter, by its legal definition appellant was put on notice that Heeter was either a peace officer or a public servant acting pursuant to an order of the court.

Although it would probably be better form to allege the capacity of the custodian, we decline to hold that the failure to so allege renders the indictment fatally defective. Appellant’s first challenge of the sufficiency of the indictment on appeal comes too late. American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598; Green v. State, 533 S.W.2d 769. Additionally, appellant’s contention that the indictment failed to put him on notice as to the capacity of Heeter is refuted by his stipulation that he was in the custody of Officer W. E. Heeter.

Finally, appellant contends that V.T.C.A. Penal Code, Sec. 38.01 is unconstitutionally vague. The constitutional requirement is that the language conveys a sufficient warning as to the proscribed conduct when measured by common understanding and practices. United States v. Petrillow, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. Appellant’s stipulation that he was arrested by and in the custody of Officer W. E. Heeter clearly negates his contention. The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Ex parte Lonnie D. PRIOR.
    No. 52297.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.
    Ted R. Cackowski, Austin, for appellant.
    William B. Mobley, Jr., Dist. Atty., James Folsom, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an application for a post-conviction writ of habeas corpus under the provisions of Article 11.07, Vernon’s Ann.C.C.P., wherein the convicting court denied relief and forwarded the findings of fact and conclusions of law to this court.

The record reflects that on September 2, 1971, the petitioner entered guilty pleas before the court to felony informations charging him with burglary, robbery and rape. The court assessed punishment at twelve (12) years for the burglary, and at thirty (30) years each for the rape and the robbery. No appeals were taken.

In his habeas corpus application petitioner claims that at the time of his guilty pleas in the rape and robbery cases he was denied the effective assistance of counsel required under both the federal and State constitutions and that the State suppressed material evidence of an exculpatory nature favorable to the defense.

Petitioner contends that his counsel was appointed on the same day he pled guilty to the rape and robbery charges, that counsel wholly failed to investigate the case, contact witnesses or in any meaningful way discuss with petitioner the facts and possible defenses. He urges that if counsel had done so counsel would have discovered that the “uncontroverted facts” would show petitioner was in a state of unconsciousness during the criminal episode involving the robbery and rape and was in such state until his arrest by the police. He alleges counsel led him to believe that he had no reasonable alternative other than to plead guilty. Petitioner appears to contend that he did not understand that mere presence alone would not constitute one a principal under the law in effect at the time of the offenses.

Additionally, petitioner urges that the State was in possession of statements, written or oral, and information to the effect he was in a state of unconsciousness during the criminal episode involving the robbery and rape and suppressed the same.

It appears from the record that the petitioner Prior, John Glen Houk, Michael Z. Morris and Edward Glen Justis arrived in Nueces county from Missouri shortly before the offenses. In the late night hours of August 24th or the early morning hours of August 25th the burglary offense was committed, and subsequently the offenses of robbery and rape, which grew out of the same transaction, occurred. About ten minutes after the robbery was reported and while the offense of rape was in progress the car in which the foursome and the pros-ecutrix were riding was stopped by police and the petitioner and his companions were arrested. It appears that while confined in the county jail the petitioner and his companions were approached by District Attorney’s investigators and offered twelve (12) years for the burglary and thirty (30) years each for the robbery and rape in exchange for guilty pleas. On September 2, 1971, the foursome were taken from jail into court. None had been indicted. Four attorneys, who were then in court, were appointed to represent the petitioner and his three companions. Each waived the presentment of indictments in the burglary, robbery and rape cases and agreed to be prosecuted on informations, which were then filed. Each waived arraignment and entered guilty pleas to the informations, waived trial by jury, waived the privilege against self-incrimination and the right of confrontation of witnesses. There was an agreement to stipulate testimony. While the guilty pleas were heard together, the trial court conducted separate trials on each offense. Before each trial, the trial court carefully and with great detail admonished the petitioner and his co-defendants in accordance with Article 26.13, Vernon’s Ann.C.C.P., as it then existed. In each instance the 22 year old petitioner assured the court that he was pleading guilty because he was guilty. In the burglary case, in addition to the stipulated testimony of the owner of the building in question, the State offered the written extrajudicial confession of petitioner’s co-defendants. The appellant then made a judicial confession. In the robbery case the stipulated testimony showed that Houk and Morris, armed with a knife and an ice cream scoop, entered Jeto’s store around 1:30 a. m. on August 25, 1971, and placed a knife against the neck of J_L_S_, an employee, forced her to call the manager into the room, and then took $271.00 and the employee with them when they left in an automobile. Such stipulated testimony also showed that they were stopped a short time later by police. Houk and Morris were in the rear seat with J_L_S_in a state of undress and Justis was driving and petitioner was in the front seat. Petitioner made a judicial confession and his appointed counsel in interrogation went over the waiver of petitioner’s rights and determined that petitioner was pleading guilty because he was guilty and that he was doing so voluntarily. The three co-defendants also made judicial confessions.

In the rape case the stipulated testimony of J L S— reflected that she was taken from the scene of the robbery and placed in the back seat of a car by Houk and Morris, a car also occupied by Justis and the petitioner, and that while the car was being driven away from the robbery scene she was raped by Houk and Morris. Other stipulated testimony showed that the car was stopped by police and the four men arrested. Again petitioner made a judicial confession and his counsel again interrogated him as to his understanding of his rights and the waivers thereof, mentioning the fact that he (counsel) had gone over the statements of State’s witnesses with the petitioner before the guilty plea. Petitioner testified he was voluntarily pleading guilty because he was guilty.

Following the guilty pleas, the appellant was sentenced in each case after waiving the time in which to file a motion for new trial or in arrest of judgment. As noted earlier, no appeals were taken.

At the habeas corpus hearing on February 5, 1976, the 26 year old petitioner testified that at the time of the guilty pleas he was 22 years old, had a tenth grade education and had been in a reformatory at age 20. He related that he had come from Missouri with the three co-defendants and readily admitted his part in the burglary, but stated he had been drinking heavily since about 1 p. m. on August 24, 1971, and that at the time of the robbery and rape he was passed out and unconscious in the front seat of the car; that he didn’t remember anything from the time he got into the car until he was jerked out of the car at the time of his arrest. He related that subsequently a “deputy” or “detective” came to the jail to take a statement and when he asked for a lawyer, was told “you’ll talk to a lawyer when I’m ready.” He stated for this reason he did not give a statement, but he agreed with the others to the “offer” made if he pled guilty. He related that when he was brought to court his appointed counsel told him “it looked like a hard case,” but he (counsel) would try it before a jury if desired, but counsel did not tell him about “accomplice liability,” and said “I was good for the crime because I was with the people that done it” — “just being there at the scene, that was enough” — “that being there in the car at the scene of the crime being committed was good enough to get me on a conviction.” Petitioner related that it was his understanding that his mere presence in the car was sufficient to convict him and counsel did not inform him to the contrary. He related he told counsel about drinking all day, but couldn’t recollect whether he told counsel he was unconscious during the robbery and the rape, but figured it was in the statements counsel had (apparent reference to the District Attorney’s file made available to counsel). He claimed he didn’t discuss the facts of the case with his appointed counsel.

Two of petitioner’s co-defendants testified that appellant had passed out in the front seat of the car at least forty-five minutes before the robbery and was unconscious during both offenses.

The Assistant District Attorney who prosecuted the cases testified he gave petitioner’s attorney before trial the State’s file or at least that was his practice. He knew of nothing in the file (consisting of statements and the offense reports) which reflected any indication that the petitioner was unconscious. He did not talk to any of the State’s witnesses as the offers to plead guilty came prior to indictment and he used the State’s file to formulate the stipulations entered into.

Petitioner’s appointed counsel testified he had practiced law since January, 1935, and over fifty per cent of his practice was in the field of criminal law. He recalled his representation of the petitioner, but did not recall his conversations with the petitioner except that he recalled petitioner never indicated he was unconscious. He related he had never permitted a client to plead guilty without talking to him about his participation in the crime, and that there were a number of ways a person could be a principal under the law. He could not recall whether he had talked to any of the witnesses or not.

At an additional evidentiary hearing ordered by this court after the original evi-dentiary hearing the prosecutrix testified that when she was brought to the car after the robbery the petitioner was in the back seat of the car and was told to get in the front seat, which he did; that before he laid down in the front seat he asked what was going on and was told to go back to sleep, but she did not relate this latter statement to any of the police officers. As a result of the attack upon her in the rear seat, she did not observe him until just before the police car pulled up, at which time she observed him raise up in the front seat. Three arresting officers testified that just before they stopped the car in question the person in the front passenger seat threw some objects out of the window. After stopping the car, the officers discovered a large amount of money scattered on the side of the car from which it was thrown. One officer also believed a knife had been found. This is the record we have before us.

First, we shall consider appellant’s contention that the State suppressed material favorable to the defense. This was obviously the fact that petitioner was passed out or unconscious during the robbery and rape offenses, and the same was not revealed to the petitioner or his counsel. Initially, it should be noted that the petitioner knew of his condition and could not recall whether he revealed the same to his counsel. Since petitioner knew of his condition at the time of the offenses prior to trial, he cannot attribute to the prosecution the suppression of evidence. Cf. Means v. State, 429 S.W.2d 490, 496 (Tex.Cr.App.1968). Further, the record reflects that the prosecutor turned his file over to petitioner’s counsel prior to trial and nothing in the file or in this record shows the State had any knowledge that petitioner was unconscious at the time he claims. The prosecutor testified the first he knew about petitioner’s claimed condition was when he read the habeas corpus application. Petitioner’s contention that there was suppression of evidence is without merit.

Turning to petitioner’s claim of ineffective assistance of counsel, we observe that the determination of such question must turn upon the particular circumstances of each individual case. See Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).

The constitutional right to counsel, whether counsel be appointed or retained, does not mean errorless counsel whose competency or adequacy of his representation is not to be judged by hindsight. Byrd v. State, 421 S.W.2d 915 (Tex.Cr.App.1967); Johnson v. State, 421 S.W.2d 918 (Tex.Cr.App.1967); Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965). See also Butler v. State, 499 S.W.2d 136 (Tex.Cr.App.1973); Jackson v. State, 491 S.W.2d 155 (Tex.Cr.App.1973); Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974); Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973).

The adequacy of an attorney’s services must be gauged by the totality of the representation, Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Coble v. State, 501 S.W.2d 344 (Tex.Cr.App.1973). See also Murphee v. State, 500 S.W.2d 165 (Tex.Cr.App.1973); Lewis v. State, 504 S.W.2d 900 (Tex.Cr.App.1974); Duran v. State, supra, and the allegations of ineffective representations will be sustained only if they are firmly founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973).

An attorney must appraise a case and do the best he can with the facts and the fact that other counsel might have tried the case differently does not show inadequate representation. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975); Witt v. State, 475 S.W.2d 259 (Tex.Cr.App.1971); Carter v. State, 449 S.W.2d 70 (Tex.Cr.App.1969). See also United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974).

The test to be applied in determining whether counsel has provided constitutionally effective assistance is the “reasonably effective assistance” standard. See Ex parte Gallegos, supra.

In the instant case petitioner’s appointed counsel had 36 years of experience at the time of the guilty pleas. At the time of appointment he was confronted with a client who had already indicated he wanted to plead guilty. He was given the State’s file and from the record went over it with the petitioner, who continued to plead guilty and who told the court he was guilty and then made a judicial confession. It is undisputed that appellant came to Texas with his three companions, had participated in a burglary with them, and was at the scene of the robbery and subsequently the rape. The file revealed that two men, possibly three, were seen at the robbery, and when the car was later stopped Houk and Morris were in the rear seat, Justis was driving and the petitioner was in the front passenger seat and was seen to throw money and a knife out the window. At the habeas corpus hearing appointed counsel could not recall his conversations with the petitioner over four years before other than reflected by the interrogation at the time of the guilty pleas. He did recall that petitioner gave him no indication that he was unconscious at the time of the robbery or rape. Petitioner could not recall that he told counsel of his condition, but assumed it was in the statements, etc., which it was not. Counsel clearly offered to try the case before a jury, but petitioner declined. If counsel had talked to the witnesses he would have learned from the prosecutrix that petitioner was told to go back to sleep, but would have learned also petitioner was alert enough to get from the back to the front seat under his own power when told to do so. From the officers he would have found support for the statement in the offense reports that the front seat passenger threw money and a knife from the ear when they were being stopped.

While it is true that mere presence alone will not constitute one a principal, see 2 Branch’s Anno.P.C., 2d ed., Sec. 709, p. 6; 16 Tex.Jur.2d, Sec. 58; Childress v. State, 465 S.W.2d 947 (Tex.Cr.App.1971), nevertheless it is a circumstance tending to prove that a person is a principal, and taken with other facts may be sufficient to show that he was a participant. Childress v. State, supra; Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974).

In determining whether a party was participating as a principal the courts 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); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975).

“An agreement of parties to act together in a common design can seldom be proved by words, but reliance can often be had on the actions of the parties showing an understanding and a common design to do a certain act.” 16 Tex.Jur.2d, Sec. 58, p. 171. Bush v. State, supra; Holloway v. State, supra. Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Circumstantial evidence is sufficient to show that one is a principal. Westfall v. State, 375 S.W.2d 911 (Tex.Cr.App.1964).

It should be remembered that one can be a principal when he advises or agrees to the commission of the offense and is present when the same is committed, whether he aids in the commission of the offense or not. Bush v. State, supra; Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046 (1920).

From the totality of the circumstances, we cannot conclude that appellant was denied the effective assistance of counsel.

The relief prayed for is denied.

      . The petitioner makes no attack upon the validity of his conviction for burglary, which the evidence reflects occurred a short time before the other offenses.

      . Counsel for petitioner at the habeas corpus hearing was apparently referring to the law of principals in existence at the time of the offenses and convictions.

      . This testimony was consistent with the offense report which was introduced into evidence.