author: DOUGLAS, Judge.

text:
    AMERICAN PLANT FOOD CORPORATION, Appellant, v. The STATE of Texas, Appellee.
    No. 55602.
    Court of Criminal Appeals of Texas. En Banc.
    Sept. 26, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Thomas S. Terrell, Kerrville, David Speed Elder, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Frank A. Perrone, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of water pollution. The punishment was assessed at a $500 fine.

Appellant, American Plant Food, attacks the sufficiency of the evidence to prove both a discharge into “water in the state”, and a discharge into surface water adjacent to the north boundary of its premises as alléged in the information.

On May 30, 1975, Robertson Barrett and James Taylor, investigators for the Harris County Pollution Control Department, conducted an investigation of the Corporation’s plant at 903 Mayo-Shell Road in Galena Park. They walked around the perimeter of the plant and discovered a discharge of water and acid from a holding pond on appellant’s property which was used for catching and holding waste from appellant’s operations. The flow rate was determined to be approximately thirty-five gallons per minute. The discharge went into a large pool extending from appellant’s property, under the perimeter fence and onto a field to the north. The field was not owned by American Plant Food and was described as non-commercial property. From there the discharge entered a small drainage ditch which ran north to the northern boundary of the field in question. At that point another source of water flowed into the ditch. The ditch then ran west to Mayo-Shell Road and then south as a roadside ditch. The trial court excluded testimony that the drainage ditch eventually ran into the Houston ship channel.

Barrett testified that field tests showed that the water in the vicinity of the pool had a Ph of 3. Dr. Michael Terrasco, Director of the Harris County Pollution Control Department Laboratory, testified that samples of discharge had a Ph of 2.4 which he considered very acidic and harmful to all forms of life. The water which entered the ditch at the northwest edge of the field had a neutral Ph of 7 and after that point the Ph in the ditch was 5 and continued to be 5 as the ditch ran along Mayo-Shell Road. Although most of the field was covered with chest high vegetation, there was no vegetation or other life forms growing in the vicinity of the polluted water. In fact, Barrett stated that he had found only dead one inch long water bugs in the water. Barrett also testified the ditch always contained water and was four feet wide and two to three feet deep. There was, however, no permanent pond or lake in the field.

Y.T.C.A., Water Code, Section 21.003 [now Section 26.001] defines water and waters in the state as follows:

“(3) ‘Water’ or ‘water in the state’ means groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavi-gable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.”

Section 21.551 [now Section 26.211] further defines water as:

“(1) ‘Water’ includes both surface and subsurface water; and ‘water in the state’ means any water within the jurisdiction of the state.” (Emphasis added).

Viewing the evidence in the light most favorable to the verdict, we hold it is sufficient to prove a violation of Section 21.552, supra, as alleged in the information. The evidence shows that the pollutant escaped from American Plant Food’s premises onto the adjacent field. It formed a large pool and then flowed into a drainage ditch. This drainage ditch contained not only waste from the factory, another stream of water also flowed into it from the northeast. The water in this stream had a neutral Ph of 7 until it combined with the very acidic solution discharged by appellant. The water polluted was not merely that in the pool formed by the discharge but all the water in the ditch and that flowing into it. It is readily apparent from the above broad definitions that this drainage ditch water is one of the types of surface water the Legislature sought to protect, and we so hold., Although there was testimony to the effect that the ditch occasionally contained only stagnant water, a careful reading of Section 21.003(3) reveals that it makes no distinction between perennial and intermittent streams. Indeed, by including ponds, marshes, lakes, canals, “and all other bodies of surface water . . . including the beds and banks of all watercourses”, the Legislature sought to prevent the kind of pollution evident here.

Next, appellant contends that the court erred in overruling its motion to quash because the information does not allege “water in the state.” The information in pertinent part reads:

“Did then and there unlawfully discharge and cause and permit the discharge of, industrial waste and acid into and adjacent to waters in the State, to-wit: Surface water adjacent to the north boundary of Defendant’s premises at 903 Mayo-Shell Road, Galena Park, Harris County, Texas, and flowing then into surface water adjacent to Mayo-Shell Road in Galena Park, thereby causing the alteration. ...”

The information alleges water of this State. It would take a strained construction to hold to the contrary.

Appellant complains that the court erroneously refused to grant its requested definition of “water in the state.” The court’s charge tracked the language of Section 21.551(1) [now Section 26.211(1)] verbatim. This instruction was sufficient.

The contention mentioned for the first time in the appellate brief that the charge also constituted an unlawful comment upon the evidence was not objected to at the trial. Consequently, nothing is presented for review. Duncantell v. State, 563 S.W.2d 252 (en banc) (Tex.Cr.App.1978); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977), and cases cited therein.

Appellant urges that the State failed to prove a discharge of industrial waste.

Section 21.551 defines “industrial waste” as:

“. . . waterborne liquid, gaseous, solid, or other waste substances or a combination of these that result from any process of industry, manufacturing, trade, or business.” (Emphasis added).

American Plant Food manufactures fertilizer, uses and stores sulfuric acid in the processing of the fertilizer, and the pond in question was used to store “waste water” from the plant. The evidence was sufficient to prove a discharge of industrial waste.

Appellant attacks the constitutionality of the statute on the grounds that it is unconstitutionally vague. The thrust of its argument is that the wording in the definition of “water pollution” which states, in part, “or to public health, safety, or welfare, or impairs the usefulness or public enjoyment of the water for any lawful or reasonable purpose”, is unconstitutionally vague because it is not sufficiently explicit to inform those who are subject to it what conduct will render them liable to its penalties.

In American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), the defendant raised the same contention, and it was overruled. We adhere to that ruling.

Appellant’s next contention is that it was error to exclude evidence of the rainfall record for the period of time in question. At trial, defense counsel sought to introduce a local rainfall record accompanied by a purported certificate signed by the Director of the National Climatic Center which stated that the rainfall record was an official publication. The State objected on the ground that the proper predicate had not been laid.

Article 3731a, § 4, V.A.C.S., provides that to be admissible the writing must be attested by an officer having legal custody of the record or by his deputy and, unless the documents are from public offices of this State, the signature of a judge of a court of record authenticated by the seal of his office is also required. The alleged certificate does not state that the signer is the legal custodian of the record nor is it accompanied by the authentication of a judge of a court of record. The court did not err in sustaining the objection. We are not passing upon the admissibility of the record in this case had the proper predicate been made.

Next, appellant asserts that a mistrial should have been declared when the State’s investigator, Barrett, testified about similar investigations of appellant despite the granting of its motion in limine on this point.

On direct examination by the State the following exchange occurred:

“Q. Mr. Barrett, you have testified that you have not contacted anybody on the premises on the May—May 30, 1975, the day after that and three days after that. My question to you now is why did you not contact anyone?
“A. Uh, the reason I did not contact anyone is that on previous — uh—on previous occasions I have made investigations of this plant and in previous occasions I tried to notify the company and on all occasions I was made to wait in the waiting room for hours at a time; an — uh—I found the plant personnel always met me with hostility and he’d — uh —It was not fruitful to; and then I found that that did not help the problem because the problem continued to exist after I notified ' them.
“MR. TERRELL: Your Honor, that’s the very matter that the Court’s been ruling on all this time and I just have to object and move for a Mistrial.
“THE COURT: The objection is sustained. The Jury is instructed to disregard the unresponsive portion of the last answer and the last clause will not be considered by you for any purpose. The Motion for a Mistrial is denied.”

An unresponsive answer may be cured by an instruction to disregard. Dugger v. State, 543 S.W.2d 374 (Tex.Cr.App.1976); Florio v. State, 532 S.W.2d 614 (Tex.Cr.App.1976). In the instant case the court sustained appellant’s objection and instructed the jury to disregard. This was sufficient to cure any harm.

Appellant contends that its motion in limine and to suppress should have been granted because Barrett failed to comply with V.T.C.A., Water Code, Section 21.064 [now Section 26.014].

The testimony adduced at the trial showed that the field adjoining appellant’s plant was owned by Southern Pacific Railroad Company and leased by Billy Joe Purser, appellant’s plant manager, for his personal use. He paid the rent out of his personal funds. Purser, however, did not live on the property and the only structure on the land was a horse stall containing several animals.

Section 21.064 provided at the time of the offense:

“The members, employees, and agent of the board are entitled to enter any public or private property at any reasonable time for the purpose of inspecting and investigating conditions relating to the quality of water in the state. Members, employees, or agents acting under this authority who enter private property shall observe the establishment’s rules and regulations concerning safety, internal security, and fire protection, and if the property has management in residence, shall notify management, or the person then in charge, of his presence and shall exhibit proper credentials. If any member, employee, or agent of the board is refused the right to enter in or on public or private property under this authority, the board may invoke the remedies authorized in Section 21.253 of this code.”

The property in question did not have a manager in residence and at no time did the investigators enter appellant’s premises. Although appellant subsequently bought the property, this occurred after the incident which gave rise to the charges here. No error is shown.

In a supplemental brief appellant contends that the information is fundamentally defective for failing to allege a culpable mental state. It maintains that V.T. C.A., Penal Code, Section 6.02(b), requires that a culpable mental state be alleged “unless the definition plainly dispenses with any mental element.” No motion to quash the information was filed.

In Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975), the defendant claimed that the complaint for the offense of driving while under the influence of intoxicating liquor was defective for failing to allege a culpable mental state. The Court noted that if the Legislature had intended to require proof of a culpable mental state it could have easily done so when it amended the statute and transferred it from the penal code to the civil statutes.

The Court held that a culpable mental state was not required to support either a conviction nor DWI or involuntary manslaughter because both may be committed without any sort of mens rea and because it was obvious that the Legislature took note of the strong public policy directed at keeping intoxicated persons off the highways. See Owen v. State, 525 S.W.2d 164 (Tex.Cr. App.1976); Neill v. State, 225 S.W.2d 829 (Tex.Cr.App.1949) (sale of adulterated meat); Goodwin v. State, 63 Tex.Cr.R. 140, 138 S.W. 399 (1911) (speeding).

In City of Galveston v. State, 518 S.W.2d 413 (Tex.Civ.App.—Houston [14th Dist.] 1975), the court faced a similar contention with regard to scienter and the civil penalties of the statute. In analyzing the legislative history of both the civil and criminal aspects of the act, the court stated:

“The history of the Texas Legislature’s treatment of water pollution control statutes bears a close similarity to the legislative history of Article 6036, involved in the Harrington case. Texas’ former water pollution statute, Article 7621d, Tex.Laws 1961, ch. 42, § 10(a), at 156, made it a misdemeanor, punishable by a fine of from $100 to $1,000 a day, for one to knowingly violate its terms. On September 1,1967, Tex.Laws 1967, ch. 313, at 745, became effective and repealed Article 7621d. The later statute, at section 15(a), imposed civil penalties for its violation and omitted the requirement that the violation be knowingly committed to subject one to those penalties. Again, in 1969, the statute was amended and the civil penalties provision, carried forward as section 4.01(d), did not require that the violation be knowingly done. Tex.Laws 1969, Ch. 760, § 1, at 2229. Finally, the statute was amended again, effective September 1, 1971, by enactment of the Texas Water Code. The civil penalty part of the statute became the above quoted section 21.252, which does not, by its literal language, require knowledge on the part of the violator to impose the provided for civil penalties. Also, at Section 21.553, the misdemeanor penalty has been carried forward with the deletion of the ‘knowingly’ requirement that was a part of the statute before 1967.
“The City argues that this legislative history as to the deletion of the ‘knowingly’ element relates only to the misdemeanor penalty provision. There was no civil penalty provision in the water pollution statute before its amendment in 1967. But the statute before and since 1967 dealt with the subject matter of water pollution. The fact that the Legislature before 1967 required knowledge as an element for the imposition of misdemeanor penalties and thereafter has not required such element for the imposition of penalties, either civil or misdemeanor, is persuasive that its intent in the enacts ment of Section 21.252 was that knowledge or intent to violate not be required for the imposition thereunder of civil penalties. The case of Williams v. State, 514 S.W.2d 772 (Tex.Civ.App.—Beaumont, 1974), also supports our holding that no proof of scienter is necessary for the assessment of penalties against the City.”

We, too, are persuaded that the Legislature’s intent in no longer requiring proof of knowledge when it amended the act in 1967 was to create a strict liability standard in which no proof of scienter is necessary. If the Legislature had intended to require proof of a culpable mental state for this crime, it would have been much easier to merely include the requirement by amending the statute when it was transferred to Section 21.552 of the Water Code in 1971 and when it was retransferred to Section 26.211 in 1977. As the Court noted in Boss, “[I]t seems strange that they would implement the same in the awkward manner the petitioner suggests.” The concept of strict liability is founded on the premise that the mere doing of the act constitutes the offense and the lack of intent “will not exonerate the party nor does this make the prohibited act any less harmful to society.” State v. Arizona Mines Supply Co., 107 Ariz. 199, 484 P.2d 619 (1971). See Hindman v. E.P.A., 42 Ill.App.3d 766, 1 Ill.Dec. 481, 356 N.E.2d 669 (1976); Department of Health v. Concrete Specialties, Inc., 112 N.J.Super. 407, 271 A.2d 595 (1970). The Legislature in eliminating a mens rea element recognized the substantial risks to public health involved in even passive pollution and enacted the penal section of the Water Code in this manner to further its intent. No error is shown.

The record contains no reversible error. The judgment is affirmed.

ONION, P. J., and ROBERTS, PHILLIPS and TOM G. DAVIS, JJ., dissent.

      . V.T.C.A., Water Code, Section 21.552(a) [now Section 26.212(a)] provides:
      “No person may discharge, or cause or permit the discharge of, any waste into or adjacent to any water in the state which causes or which will cause water pollution unless the waste is discharged in compliance with a permit or other order issued by the Texas Water Quality Board, the Texas Water Development Board, or the Texas Railroad Commission.”

      . The lower the Ph below 7, the more acidic the liquid.

      . Section 21.551(2) [now Section 26.001(14)] defines “water pollution” as:
      “ ‘Water pollution’ means the alteration of the physical, chemical, or biological quality of, or the contamination of, any of the water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety, or welfare, or impairs the usefulness or public enjoyment of the water for any lawful or reasonable purpose.”

      . See also V.T.C.A., Penal Code, Section 1.03(b).


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Harvey Thomas ALES, Appellant, v. The STATE of Texas, Appellee.
    No. 57658.
    Court of Criminal Appeals of Texas.
    Oct. 17, 1979.
    Steven F. Gamble, Longview, for appellant.
    Odis R. Hill, Dist. Atty. and Nathan Holt, Asst. Dist. Atty., Longview, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION ON MOTION FOR REHEARING

ODOM, Judge.

The opinion on original submission is withdrawn.

This conviction is for the offense of murder. Punishment was assessed by the jury at fifty years.

Appellant challenges the sufficiency of the evidence and contends that the court erred in refusing to charge the jury on the law of circumstantial evidence and in refusing to allow examination of a written statement made by his wife, who testified for the State.

Appellant and his wife had several children, one of whom was Malinda. The parents engaged in severe abuse of Malinda, which included binding her hands and feet to her potty chair, hanging her by her hands from a belt, use of a wire brush on her legs and standing on her back. Appellant had bitten Malinda’s fingers and toes with sufficient force to break the skin and draw blood. He also used a wooden board to strike her. His wife had once observed him strike Malinda’s head with a board. Several days before her death, appellant had ordered his wife and other children from the room while he “punished” Malinda. The wife observed the broken board the next day.

Several days after this “punishment,” on the evening of February 11, 1975, Malinda began to have convulsions and appeared lifeless; she was taken to the hospital where she was pronounced dead. Individuals who observed appellant at the hospital testified that he was unemotional. He was subsequently arrested and made statements indicating that he had punished his children with a board and told officers where they could find the board. Officers subsequently located the broken board; it had the name “Malinda” written on it.

A pathologist who conducted an autopsy on Malinda testified concerning extensive injuries and bruises to the child. The cause of death was trauma to the head. The head injuries were caused by the “sharp, jolting action” of a blunt instrument, which could have been the broken board.

The facts show a particularly brutal and prolonged course of child abuse. Mrs. Ales testified that she had seen the appellant hit the child in the back of the head with the board. The indictment charged that the appellant did “intending to cause serious bodily injury to an individual, Malinda Ann Ales, commit an act clearly dangerous to human life, to-wit: hit, strike and beat the said Malinda Ann Ales about the body, legs and arms with a board” thereby causing her death. Considering the evidence in the light most favorable to the verdict, we find that the evidence is sufficient.

Complaint is made that the jury was not charged on the law of circumstantial evidence. Mrs. Ales testified that she had seen appellant strike the child with a board in the past, but on the occasion in question she did not see him strike the child because she was ordered to leave the room and take the other children with her. Her testimony regarding when the death-causing injuries were believed to have been inflicte.d, was as follows:

“Q. All right. And prior to him throwing it away, did he use that board on the child, Malinda Ann Ales?
“A. I don’t know.
“Q. All right. Well, tell me just what happened that night.
“A. That night I know he was angry.
“Q. Who was he angry at?
“A. Malinda.
“Q. All right. For what reason was he angry at Malinda?
“A. I can’t remember.
“Q. All right.
“A. And he even yelled at me and said for me to leave the room and take the two children in the kitchen and I did. They were crying and they were upset and I took them in the kitchen and I was at the table and that was the night that he threw it away.
“Q. Did you have an opportunity to observe the child after he had told you to leave the room with the other kids?
“A. Not until the next morning.
“Q. And what did you see when you observed the child the next morning?
“A. Her head.
“Q. What part of her head?
“A. Her forehead.
“Q. And what was wrong with the front part of her forehead?
“A. It was swollen. I saw it that morning that I put her on the potty.
“Q. And was that the night that the board broke?
“A. Yes, sir.”

In Newton v. State, Tex.Cr.App., 509 S.W.2d 610, 614, we stated:

“Though there was no direct evidence of the actual taking, the facts proved were in such close juxtaposition to the actual taking as to render a charge on circumstantial evidence unnecessary. Appellant was discovered while still in the act of the crime, before the stolen equipment had been removed from the scene. The fact that it had already been taken off the victim’s premises did not in light of the facts in this case, make a charge on circumstantial evidence necessary.”

Likewise, in the instant case, the facts were in such close relationship to the main fact to be proved as to be equivalent to direct testimony, and a charge on circumstantial evidence was not required. Newton v. State, supra; Oltiveros v. State, Tex. Cr.App., 474 S.W.2d 221; Riggins v. State, Tex.Cr.App., 468 S.W.2d 841.

Finally, appellant contends that the court erred in refusing his request for a copy of his wife’s statement for use in cross-examination. At a pre-trial hearing, the following transpired:

“MR. MOBLEY: Just a minute, Your Honor. Your Honor, at this point we would request that we be furnished with a copy of the statement Mr. Hill is now referring to.
“THE COURT: She hasn’t testified yet. I’ll give it to you when she testifies. That’s her statement.
“MR. MOBLEY: Judge, you granted me a copy of it back when he had the first pre-trial hearing. Now, again, Mr. Hill—
“MR. HILL: I didn’t have a copy of it when we had the first pre-trial hearing. She wasn’t even going to testify for me.
“THE COURT: We will follow the law with regard to witnesses who testify and if they have made any statement, for the purpose of cross examination I’ll give you the statement, Counsel, at the proper time.”

At the conclusion of Mrs. Ales’ direct testimony at the case in chief, the following occurred:

“MR. HILL: I pass the witness at this time.
“MR. MOBLEY: We’ll renew our discovery motion, Your Honor.
“THE COURT: Overruled.”

There was no further request for the statement. Five separate pre-trial discovery motions were filed.

In Haywood v. State, Tex.Cr.App., 507 S.W.2d 756, we explained the rule regarding the accused’s right to statements made by prosecution witnesses:

“Under the ‘Gaskin Rule’ when a witness for the State has made a report or has given a statement prior to testifying, the defendant, after a timely and specific motion, is entitled to inspect and use such prior and available report or statement for cross-examination and impeachment purposes.” (Emphasis added.)

In the instant ease, the judge had indicated that the statement would be given at the appropriate time. After Mrs. Ales testified, the most general possible request for her statement was made. After the request was denied, appellant did not in any way pursue it. In light of the fact that numerous pre-trial motions for discovery were made, the “request” was not specific enough for the court to understand what counsel was seeking. No error is shown.

There is no reversible error. The appellant’s motion for rehearing is denied. The judgment is affirmed.

ROBERTS, J., dissents.


author: PHILLIPS, Judge. DOUGLAS, Judge.

text:
    Leo Burbin RICE, Appellant, v. The STATE of Texas, Appellee.
    No. 56698.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.
    On Rehearing Oct. 17, 1979.
    Oren B. Hamlin, Bay City, court appointed, for appellant.
    Ogden Bass, Dist. Atty. and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. The trial court, upon the two allegations of prior final convictions being found true, assessed punishment at life imprisonment.

In a single ground of error, appellant contends that the evidence in this cause is insufficient to corroborate the testimony of the accomplice witnesses and fails to tend to connect him with the offense committed and charged. See Article 38.14, V.A.C.C.P.

The jury was instructed that witnesses Rucker, Bishop, and Caldwell were accomplice witnesses as a matter of law. The law relating to the need for corroborative evidence from non-accomplice witnesses was also provided.

These three witnesses related the events surrounding the planning, preparation, execution, and conclusion of the offense. They all identified appellant as an active participant in the planning and execution of the offense.

The non-accomplice witness testimony to be considered reflects that shortly after 1:35 p. m. on March 24, 1976, the complainant was having a cup of tea with her neighbor when a van drove into her driveway and parked. A man exited and knocked on the complainant’s front door. He entered with a drawn pistol and ordered the complainant to sit down. This individual did not wear a mask and was later identified as the accomplice witness Rucker. Another man entered wearing a blue ski mask, gloves, and blue jeans with a gun in his possession. A third man entered through the utility room on the side of the house wearing a yellow ski mask, a jacket with the word “Champion” inscribed thereon, gloves, and blue jeans. This third individual tied the complainant and her neighbor at the wrists and ankles with adhesive tape. The robbers used a walkie-talkie and were searching for a safe within the home. In the course of the robbery, these individuals took the complainant’s rings from her hands, papers belonging to her husband, money from a safe in the master bedroom, a pistol, a shotgun, and jewelry. After freeing themselves and discovering their phones were put out of commission, they called the Sheriff’s Office from a neighbor’s home. The complainant testified that she could not identify the appellant as one of the three men involved in the robbery. She did identify photographs of the white van used in the course of the robbery. The complainant’s neighbor who was also within the home during the robbery merely reiterated the testimony of the complainant.

Jack Kemp, a former investigator with the Brazoria County Sheriff’s Office who investigated this robbery, testified that he went to the scene of the robbery and then to the location where the white van was found after it had struck a tree after the robbery report was received around 2:30 p. m. Accomplice witness Bishop was arrested at the scene of the van and a .22 caliber Lawman semiautomatic pistol was found at the scene. Kemp recognized the vehicle as one on which a suspicious vehicle report was filed the day previous by the owners of the Sportsman’s Village trailer park and restaurant. After discussing the van and recent goings-on in the area with the Carters, a search warrant was obtained and executed on March 25, 1976. The property of the complainant was found within the trailer identified as having been rented to Ronnie Kutzer. Also, gloves, wigs, caps, makeup, and a pistol were discovered in the trailer. Some of the complainant’s papers were found in a brown paper sack. Kemp was also advised that there were two other cars in the vicinity of the trailer and the van at the Sportsman’s Village, one being described as a vehicle with a dark top and silver bottom. Efforts to obtain fingerprints from the trailer and its contents were unsuccessful. The witness was further advised that two of the individuals seen in the vicinity of the trailer the night before and the day of the robbery made two collect calls from the Sportsman’s Village cafe which were traced to a Camsco Furniture business and an unidentified lady in Houston.

Paul Weishman, an identification officer with the Brazoria County Sheriff’s Office and who was involved in the investigation of the instant robbery, testified that he photographed the scene of the robbery, the van, and trailer. He obtained a partial print from the rearview mirror of the van, but it was insufficient for comparison purposes. He testified that the Sportsman’s Village was approximately 15 miles from the complainant’s residence. The van was discovered between five and a half and six miles from the Sportsman’s Village.

Sammy Rousso, director of the Southern Pet Laboratories, testified that one of the vans provided to one of his employees was reported stolen on March 22,1976, and identified photographs of the van as one of the types provided his employees. He also identified the coveralls in evidence as similar to those issued to Southern Pet Laboratories employees. He further testified that the ignition switch on the van had been changed and that there appeared to be some holes drilled in the left side of the van.

Jackie Scopel, the Police Chief of Manvel at the time of this offense, testified that he heard the broadcast of the description of the van and driver used in this robbery and immediately observed a vehicle and driver matching that description. He gave chase, whereupon the driver pulled up in a private driveway, jumped out, and ran. This individual was later arrested with the assistance of Texas Department of Corrections dogs and personnel. This individual was accomplice witness Bishop.

Robert Gladney, Brazoria County Sheriff, testified that after the trial of accomplice witness Rucker he spoke to accomplice witness Bishop and was provided a vehicle description and license number. He traced this vehicle to a Ford dealership in Houston which in turn informed him that the vehicle had been leased to one Walter Traylor. He further testified that he at one time went to Arkansas with accomplice witness Gloria Caldwell, observed the appellant, returned to Brazoria County, gave testimony before the grand jury, and obtained an indictment against the appellant.

Walter Traylor of Houston testified that he rented a 1976 Ford LTD, License No. LXE-743, on March 11, 1976, and returned the vehicle on April 26, 1976. He testified that he let several people use the vehicle, including the appellant. He stated that the appellant requested his permission to use the rented vehicle because he had transmission problems with his own vehicle. The witness did not remember the precise dates on which the appellant had borrowed the car.

Eugene Carter, owner of Sportsman’s Village, testified that he arrived at his cafe sometime after 4 p. m. on March 23, 1976. He testified that he observed four men and one woman at the trailer leased to Ronnie Kutzer. He stated he observed Gloria Caldwell’s automobile, a silver-topped and gray-bottomed automobile, and a Ford van. He testified that he remembered two individuals because they were dressed differently than other customers in that they were wearing fine clothes or suits. These two individuals came into the cafe and requested permission to make long distance collect calls on his phone. The appellant made his call and said, “Everything is lovely. Made contact. Will call you tomorrow.” The other individual with the appellant also made a phone call. Since neither the owner nor his wife recognized the two individuals and they were in constant fear of being robbed, he followed the two men to the white Ford van in front of the Ronnie Kut-zer trailer while purporting to be working on his backhoe parked next to it. He observed four men working on the white Ford van as if “Putting radios or something in it.” He stated three men were inside and one outside and that it appeared as if they were installing a CB radio. He obtained the license number of the white Ford van and requested a license check from the Bra-zoria County Sheriff’s Office.

Lillian Carter, wife of Eugene Carter, testified that she also saw the two well-dressed men wearing light-colored leisure suits make their long distance collect phone calls from their cafe on the evening prior to the day of the robbery. She noticed the same cars in front of Ronnie Kutzer’s trailer as did her husband as well as an additional silver pickup truck. ■ She testified that the vehicles were there at the time they closed their cafe, but only the van was there when they opened in the morning. She saw the silver car return with two men in it, although she could not identify them at that time. She testified that the same two men who made the phone calls were “standing out there the next day” near the trailer, although she did not state at what time during the day they were there. Between 10:30 and 11 a. m. on the day of the robbery, accomplice witnesses Bishop and Rucker came into the cafe and ordered food for the trailer. Later all the vehicles left, including the white van. The vehicles returned shortly later with two men in the van, two unidentified men in a silver and gray car, and accomplice witness Gloria Caldwell in her car. The witness testified that she observed accomplice witnesses Gloria Caldwell and Bishop carry brown grocery bags into the trailer, but identified no one else. The group took off, returned shortly, and took off for the last time and never returned. All this activity occurred around 2 p. m.

In determining whether the State has satisfied the evidentiary obligation imposed on it by Article 38.14, supra, this Court excludes from consideration the accomplice witness testimony and reviews the balance of the record. Lewis v. State, 505 S.W.2d 603; Dalrymple v. State, 366 S.W.2d 576; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.

Upon reviewing the non-accomplice witness testimony, we must find incriminatory or inculpatory evidence which tends to connect the appellant to this aggravated robbery before we can conclude that the mandate of Article 38.14, V.A.C.C.P., has been satisfied. It is the combined, cumulative weight of such evidence that is to be considered and such evidence need not directly establish appellant’s guilt to be sufficient. Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Odom v. State, Tex.Cr.App., 438 S.W.2d 912; Edwards v. State, Tex.Cr.App., 427 S.W.2d 629; Anders v. State, Tex.Cr.App., 501 S.W.2d 665; and Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422.

The testimony of the complainant and her neighbor establishes commission of an offense and the use of the white van seen in Sportsman’s Village. Proof of an offense alone is insufficient corroboration under Article 38.14, supra. Odom v. State, supra; Edwards v. State, supra; Anders v. State, supra.

The testimony of the Carters places appellant in the presence of the accomplice witnesses and the white van on the evening prior to and day of the robbery. That testimony also places appellant in the vicini- . ty of the van while work was being done on it in the nature of installing a CB radio. There is no testimony as to his role, if any, in the work being done on the van. The van and trailer, wherein fruits of the offense were later found, were 15 miles from the scene of the offense.

The mere presence of the accused in the company of the accomplice shortly before or after the time of the offense is not, in itself, sufficient corroboration of the testimony of an accomplice. .
Nelson v. State, Tex.Cr.App., 542 S.W.2d 175 at 177.

See also Cherb v. State, supra; Rodriguez v. State, Tex.Cr.App., 508 S.W.2d 80; Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311; Roberd v. State, 161 Tex.Cr.R. 188, 276 S.W.2d 270. However, other suspicious circumstances, in conjunction with mere presence, can satisfy the corroboration requirement of Article 38.14, supra. Edwards v. State, supra (appellant with accomplice witness near scene of and at time of offense, unusual hour, immediate flight, possession of victim’s weapon the next day); Cherb v. State, supra (appellant left apartment with accomplice witness, returned with one of two types of bank bags victim used filled with coins, hid bag when person knocked); Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340 (appellant seen with accomplice witnesses on night of offense, escape from jail after indictment); Rodriguez v. State, supra (appellant seen across street from scene near time of offense among accomplice witnesses, matched description of one of the assailants); and Ayala v. State, Tex.Cr.App., 511 S.W.2d 284 (appellant seen with accomplice witness and deceased night of murder, flight). See also, generally, 23 C.J.S. Criminal Law § 812(4)g.

Appellant here was not identified as being present at or near the scene of the offense, but rather 15 miles distant at an undetermined time. No non-accomplice evidence indicates possession of or control over any fruits or instrumentalities of the offense. No flight to avoid apprehension or prosecution is shown. The trailer in which the fruits and instrumentalities of the offense were found was leased to another party and there is no record indication of appellant residing therein. See and cf. Deal v. State, Tex.Cr.App., 508 S.W.2d 355; Harris v. State, Tex.Cr.App., 524 S.W.2d 65. Appellant’s presence in the vicinity of the trailer and van was not suspicious or incriminatory in nature. The corroborative evidence in Johnson v. State, 129 Tex.Cr.R. 430, 88 S.W.2d 108, was far more persuasive than that adduced here, yet this Court reversed that cause.

Finally, neither does the evidence tend to connect the appellant to the charged offense as a party who was criminally responsible for the conduct of the accomplice witnesses. Likewise, the evidence demonstrates mere presence in non-incriminatory or suspicious circumstances. The conduct described cannot be said to even tend to show appellant solicited, encouraged, directed, aided, or attempted to aid the accomplice witnesses in the commission of this offense with the specific intent of promoting its commission. See V.T.G.A., Penal Code, Section 7.02(a)(2).

We must conclude that on the record before us the State failed to present sufficient, non-accomplice evidence of an incriminatory nature that tends to connect the appellant to the offense charged and thereby corroborate the accomplice witnesses as required by law. See Article 38.14, supra; Chapman v. State, Tex.Cr.App., 470 S.W.2d 656; Nelson v. State, supra; Harris v. State, supra; Deal v. State, supra; Johnson v. State, supra; Anders v. State, supra; Thomas v. State, supra; Windham v. State, Tex.Cr.App., 479 S.W.2d 319.

Under Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), a determination by an appellate court that the evidence, as a matter of law, was insufficient to sustain the fact-finder’s verdict bars any retrial of the appellant for the same offense.

The judgment of conviction is reversed and reformed to reflect an acquittal. The cause is remanded for proceedings under Article 37.12, V.A.C.C.P.

Before the Court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

On original submission this cause was reversed on the ground that the evidence was insufficient to corroborate the testimony of accomplice witnesses. Two prior convictions were alleged for enhancement. The court assessed the punishment at life.

The record reflects that Gloria Caldwell overheard some conversation in her bar in Freeport which led her to believe that a large amount of cash was being kept in a safe in the private residence of Mr. and Mrs. Eddie Dyer. She conceived a plan to steal the money and enlisted the aid of two longtime friends, Joe Rucker and Kenneth Bishop. She also sought out someone who knew something about a safe and was placed in touch with Oscar Bowen by a pool hustler. Bowen agreed to participate in the plan and brought in an associate, Leo Rice, the appellant.

On March 26, 1976, two days before the robbery, all five of the parties met in Houston where they bought a police radio scanner and Bowen volunteered to provide a van to be used in the robbery. The following day, all met in a house trailer at a fishing camp in the vicinity of the Dyer residence, went over plans for the robbery and installed the police scanner in the white van provided by appellant and Bowen.

On the day of the robbery, all five of them met again in the house trailer and all left at the same time to commit the robbery. Bishop drove the white van with appellant, Bowen and Rucker with him and Gloria Caldwell drove her car to a designated place to act as a lookout. She was in contact with the van by C.B. radio and the van was in contact with appellant, Bowen and Rucker, all of whom went into the Dyer residence, by walkie talkie.

Rucker, who had disguised himself by wearing a pair of mirrored sunglasses and a black wig and darkening his moustache, entered the Dyer residence first and held a gun on Mrs. Dyer, a visiting neighbor and two children. Appellant and Bowen, both of whom were armed with pistols, came into the house shortly thereafter wearing ski masks. They took the contents of the safe found in the master bedroom closet and Mrs. Dyer’s rings off her finger, tied up Mrs. Dyer, the neighbor, and the two children with tape and departed in the van. All five of them met back at the house trailer, argued violently over the apparent insignificant amount of money that was in the safe and left in different vehicles.

Bishop was arrested a few minutes later after he was observed driving the white van. He, Gloria Caldwell and Rucker all agreed to, and did, testify for the State against Bowen and appellant. Bishop and Gloria Caldwell each received two years’ confinement and Rucker received twenty years in return for their agreement to testify-

Appellant contends in his sole ground of error that the evidence is insufficient to corroborate the testimony of the accomplice witnesses because at best the State’s evidence shows nothing more than his presence with the accomplices before and after the time of the offense.

The trial court correctly instructed the jury that Caldwell, Rucker and Bishop were accomplice witnesses as a matter of law and that a conviction could not be had upon their testimony unless that testimony was corroborated by other evidence tending to connect appellant with the offense committed, and the corroboration was not sufficient if it merely showed the commission of the offense. See Article 38.14, V.A.C.C.P.

The well established test as to sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witnesses and then examine the other evidence to ascertain if it is of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978); Brown v. State, 561 S.W.2d 484 (Tex.Cr.App.1978); Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Etheredge v. State, 542 S.W.2d 148 (Tex.Cr.App.1976); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975).

Further, in Carrillo v. State, supra, we quoted with approval the following from Bentley v. State, supra:

“The mere showing that an offense occurred is not sufficient corroboration. Windham v. State, 479 S.W.2d 319 (Tex.Cr.App.1972); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972). The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test. Perkins v. State, 450 S.W.2d 855 (Tex.Cr.App.1970); Windham v. State, supra; Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt, Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Reynolds v. State, supra; Rainey v. State, 401 S.W.2d 606 (Tex.Cr.App.1966); it need only make the accomplice’s testimony more likely than not. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).”

The testimony and evidence other than that provided by the accomplices Caldwell, Bishop and Rucker may be briefly summarized as follows:

Mrs. Dyer testified that she was robbed by three men in the early afternoon of March 24, 1976 and that three men were in her house for about twenty to thirty minutes. She was able to identify Joe Rucker as one of them in spite of his black wig, darkened moustache and mirrored sunglasses, but she could not identify the other two because each of them wore a ski mask. She heard another male voice on the walkie talkie on two occasions. Rucker was wearing blue coveralls, the other two wore jeans, and Rucker was wearing one surgical glove.

Mr. and Mrs. Carter, who operated a restaurant at the trailer park where the camp trailer was located, testified that appellant was with the other four parties when they arrived at the camp trailer on the day before the robbery. Both testified that appellant and Bowen each made a collect long distance call on their telephone in the restaurant. Mr. Carter heard appellant’s cryptic conversation which he testified consisted only of a statement to the effect that he had made contact, everything was lovely, and he would call the following night. The telephone conversation of Bowen was basically the same. Mr. Carter was suspicious of the men because of the odd telephone conversations and because they were overly dressed for where they were, and he went outside to pretend he was working on a piece of machinery so as to obtain the license number of the van. He did obtain the number and while there observed appellant and Bowen installing a radio in the van. He called the sheriff’s office to have them check on the license number but received no immediate response to his inquiry. This van was identified as the one used in the robbery.

Mrs. Carter testified that on the day of the robbery she observed appellant and the other four parties arrive at the house trailer in the late morning, saw all of them leave together about noon and then return again about 2:00 p. m. At that time she saw them take what appeared to be three brown grocery-type bags from the vehicles into the house trailer. Appellant was not carrying one of the bags. All of them left a short time later and she saw no one at the trailer until the next day when the police officers came with a warrant to search it.

Police officers who searched the house trailer found personal papers which had been taken from the Dyers’ safe in the robbery, some blue coveralls, a black wig, black eyelash makeup, moustache wax, a moustache wax brush with black wax on it, surgical gloves and a pair of mirrored sunglasses.

The owner of the white van testified that it was stolen in Houston two days before the robbery.

While appellant argues that the non-accomplice evidence merely shows that he was present with the accomplices before and after the offense and that sufficient corroboration is thus not shown, we do not view the evidence in such a narrow manner. Appellant made a highly suspicious telephone call shortly after arriving at the trailer camp after looking over the scene, he was observed installing radio equipment in a stolen van which was used in the robbery, he left the trailer with the robbers shortly before the robbery, four men participated in the robbery, he returned with them shortly after the robbery and was present when the fruits of the robbery were brought from the vehicles into the house trailer.

We hold that the presence of appellant with the accomplices before and after the robbery, coupled with the other cited circumstances, is sufficient to corroborate the testimony of the accomplices. See Nelson v. State, 542 S.W.2d 175 (Tex.Cr.App.1976); Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976); Ayala v. State, 511 S.W.2d 284 (Tex.Cr.App.1974); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). This ground of error is overruled.

The State’s motion for rehearing is granted; the judgment is now affirmed.

PHILLIPS, J., dissents for the reasons stated in the opinion on original submission.

      . Although the Brazoria County Sheriff testified he proceeded to Arkansas in the company of accomplice witness Caldwell and observed appellant, there is no evidence as to the time or circumstances surrounding this trip. Ms. Caldwell was not arrested for this offense until after accomplice witness Rucker had stood trial and received a life sentence.

      . The conviction of Oscar Franklin Bowen in Cause No. 57,330, based on the same evidence, was affirmed September 20, 1978 in a per cu-riam opinion.


author: KEITH, Commissioner.

text:
    William Parma GASSETT, Appellant, v. The STATE of Texas, Appellee.
    No. 56825.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.
    Rehearing Denied Oct. 31, 1979.
    Dissenting Opinion Oct. 31, 1979.
    See 589 S.W.2d 699.

      Larry S. Parnass, George T. Bond and Carl R. Golden, Irving, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and Hugh Lucas, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., PHILLIPS and TOM G. DAVIS, JJ., and KEITH, Commissioner.
   OPINION

KEITH, Commissioner.

The jury convicted appellant of murder with malice and set his punishment at confinement for twenty-two years.

Under the undisputed record, appellant shot Dr. Bob Sollock once in the chest with a pistol and the wound caused death almost instantaneously. Appellant was married to the former wife of the deceased and there had been many court hearings involving the custody of a child born of the marriage of the deceased and appellant’s wife.

The last custody hearing resulted in a modification of the decree whereby the deceased regained custody of the child and appellant’s wife was directed to deliver such child to deceased at a particular time and place. Instead of complying with the order, appellant, his wife, and the child left the state on the same day the order was pronounced from the bench. The avowed purpose was to prevent the deceased from having his child with him in accordance with the new order. Appellant’s wife and her child remained outside the state at all times up to and including the date of the homicide. Appellant, however, returned to Dallas about a week before the homicide. In the meanwhile, Dr. Sollock had been endeavoring to locate appellant, his former wife, or the child and frequently had driven around the neighborhood where appellant resided.

On the night of the homicide, July 11, 1973, the deceased and his wife drove by the home of his former wife’s parents but saw no lights and they continued driving toward appellant’s home when appellant in a pickup truck began following their car. After several blocks, appellant “curbed” the deceased’s car and, with a pistol in his hand, came up to the car where deceased and his wife were still seated.

According to deceased’s wife, as appellant came up to their car, he stated: “All right, you sorry son-of-a-bitch, I’m tired of you driving by this neighborhood,” to which deceased replied that it was a public street. Thereupon, appellant challenged him to get out of the car.

Deceased did so but not before he reached under the seat and got his own .357 two-shot derringer pistol. Deceased had the pistol in his right hand as he got out of the car — his wife saying that it was behind his back, appellant saying that it was in the open and plainly visible. As deceased was in the process of moving his hand forward, appellant fired the single shot which killed Sollock.

Additionally, appellant testified: (1) he was afraid for his life; (2) this fear arose because of the child custody case and he was fearful that deceased would do him bodily harm; (3) he had formed this fear after having seen pictures of his wife disclosing injury done to her by deceased; (4) his wife told him she had been beaten by deceased; (5) he knew deceased carried a gun; (6) he had been told that deceased had been to his house upon at least two occasions and was armed each time; (7) deceased had attacked appellant’s father-in-law on at least one occasion; and (8) he knew deceased carried a gun in his car.

Appellant also testified that he approached the car seeking an explanation of Sollock’s continued surveillance of his home and that he had no intention of killing Sollock on the occasion in question. Indeed, he testified that had Sollock turned away from appellant’s home after leaving the home of the wife’s parents, appellant would not have followed Sollock’s car.

The court’s full and unlimited charge on self-defense was qualified by a charge on provoking the difficulty. Appellant tendered a requested written instruction (and filed written objections to its omission from the charge) relating to his right to carry arms to the scene of the difficulty. The tendered instruction was couched in the precise language of the instruction quoted in Young v. State, 530 S.W.2d 120, 121 (Tex.Cr.App.1975).

As noted in Young, the giving of the charge on provoking the difficulty was not erroneous since it was supported by the evidence introduced by the State. However, Young is dispositive of the contention now urged. Holding squarely that the new Penal Code did not change the rule prevailing under the old Code, this language controls the disposition of the cause:

“On the other hand, it is equally well settled that if the court’s instruction limits the accused’s right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused’s right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence.” (530 S.W.2d at 122, citations omitted)

Of course, we do not hold that appellant’s own testimony required the jury to accept his version of the facts. We simply hold that the evidence introduced was sufficient to require the additional instruction to ameliorate the limitation imposed upon his right of self-defense by the charge on provoking the difficulty.

The other grounds of error presented in appellant’s brief are not likely to recur upon another trial so they are not discussed herein. Having found reversible error, the judgment of the trial court is reversed and the cause remanded.


author: ROBERTS, Judge. DOUGLAS, Judge, ODOM, Judge.

text:
    Ex parte Lester Ray LEWIS.
    No. 60649.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 30, 1979.
    Rehearing Denied Oct. 24, 1979.

      Paul G. Ferguson, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

This is a post-conviction application for habeas corpus relief. The judge of the convicting court held a hearing and made findings of fact and conclusions of law (including a conclusion that relief should be granted).

On November 3, 1977, the district court appointed an attorney to represent the applicant. On the same day, the applicant pleaded guilty to an information charging him with murder, and he was sentenced to confinement for a term from five years to life. The applicant did not appeal. Before (and at the time of) the trial, the district attorney had a copy of a letter from a psychiatrist to an attorney in Trinity County, who was not the attorney who represented the applicant at trial. (The petition alleged that the applicant originally was arrested and charged in Trinity County, but it was later determined that that was not the proper venue. We do not regard this unproved allegation as a fact; we merely mention it for clarification.) The attorney who represented the applicant at trial was not made aware, by the State or by any other source, of the existence of the psychiatrist’s letter. We quote from the letter:

“Re: Psychiatric Examination of Lester Ray Lewis — 34 Year Old White Male Seen in Groveton Jail September 22, 1977 on Court Order of District Judge Joe Ned Dean
“This man was seen and gave a reasonably coherent history of events leading up to his arrest and the incident involving the man he is charged with killing. He was quick to say the man had called him a homosexual and this had led to a fight which had resulted in the man he is charged with having killed [sic]. He described the events of that date as being unavoidable because the man had threatened to kill him with a knife.
* * * * * *
“Patient recalled that he attended public school in Huntsville, quit school in the fourth grade. He is not able to recall his age but he had a great deal of difficulty learning and apparently never learned to read or write. He was thought to be mentally retarded and on at least two occasions was sent to school for the mentally retarded. Although he did not himself discuss this it was learned from his attorney that he had also been in the State Hospital at Rusk on several occasions. He did admit to going to Rusk at least once after he attempted suicide several years ago but he denied being seen by the psychiatrist there.
“At interview this young man is considered to be in contact with reality. He is aware of the fact that he has been placed in jail and that it has something to do with the death of a man he was ‘fighting with’. He does not appear to comprehend the seriousness of the crime that he has been charged with. * * * Patient is definitely paranoid and his paranoid ideas are exhibited in the fact that he feels that people are talking about him as being homosexual. He has hallucinatory experience a great deal of the time and his hallucinations involve people talking about him as being homosexual or threatening to harm him. * * *
“In my opinion this man has a schizophrenic reaction of the chronic undifferentiated type manifest by paranoid ideas, marked impairment to comprehend much of what is going on about him. There is some question that he may have been moderately intoxicated on the day in question but his reasoning today while sober would make his behavior quite understandable on the day in question without explaining his behavior as being intoxicated.
“There is some question that he might also have an organic brain syndrome since he does have ‘black-out spells’. It would be nice if an EEG could be arranged unless he had one on a recent admission to the Rusk Hospital. It is doubtful that this man can be held accountable for his behavior and if he is to live outside an institution he will require treatment for his schizophrenic illness. He would require treatment but it is my opinion that he needs to be hospitalized in a psychiatric hospital such as the maximum security unit at Rusk at least for the time being.”

The letter raises questions of the applicant’s sanity at the time of the alleged offense, and of his competency to stand trial.

The applicant does not claim that the prosecutor willfully suppressed the letter, nor is it necessary for him so to claim, for the withholding of evidence favorable to the accused denies due process irrespective of the good faith or the bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). “It shall be the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” V.A.C.C.P., Article 2.01. “[Tjhere are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request [from a defendant].” United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

The State argues that the non-disclosure of favorable information is important only in contested cases like Agurs. We cannot agree. The overriding concern is whether a defendant has been deprived of due process and due course of law. See Agurs, supra, at 108, 112, 96 S.Ct. 2392; Ransonette v. State, 550 S.W.2d 36, 40 (Tex.Cr.App.1977); Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968). The requirement of due process and due course of law extends to guilty pleas as well as to contested cases. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Ex parte Shuflin, 528 S.W.2d 610 (Tex.Cr.App.1975). The conviction of an accused person while he is legally incompetent violates due process and due course of law. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977). The very arraignment and plea of an incompetent person is constitutionally invalid. See Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (dictum). Such a constitutional error is not waived by a defendant’s silence. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). If anything, the denial of due process and due course of law would be greater than in a contested case if an incompetent defendant were permitted (as the applicant was) to waive such constitutional and statutory rights as an indictment, time to prepare for trial, the presumption of innocence, the compulsory production of witnesses, the confrontation and cross-examination of witnesses, trial by jury, the right not to be compelled to incriminate himself, time to move for a new trial, and an appeal. Therefore, we hold that, like exculpatory evidence, information about the incompetence of a defendant can be of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request from the defendant. Accord, Ashley v. Texas, 319 F.2d 80 (5th Cir.), certiorari denied, 375 U.S. 931, 84 S.Ct. 331, 11 L.Ed.2d 263 (1963). Further, we hold that the prosecutor’s duty to disclose favorable information (whether relating to the issue of competence, guilt, or punishment) extends to defendants who plead guilty as well as to those who plead not guilty.

The omission to disclose testimony that is favorable to a defendant must be evaluated in the context of the entire record. United States v. Agars, supra. In this case, the information in the psychiatrist’s letter contains strong indications that the applicant could have raised a defense of insanity. The letter also indicates that the issue of incompetence to stand trial should have been explored. We think that if the applicant’s counsel had been aware of this letter he would not have agreed, on the first day he was appointed and without investigation, to a plea of guilty for a life sentence. The harm is clear.

The State argues that the prosecutor’s duty to disclose extends only to favorable information unknown to the defense, and it points out that the applicant knew that he had seen a psychiatrist. It would be anomalous to hold that the (concededly) illiterate, mentally retarded, alcoholic, and (according to the psychiatrist) psychotic applicant had a duty to tell his counsel that there was available evidence of his insanity and incompetence.

The State offered evidence that the prosecutor’s policy was to open his file to defense counsel whose clients were pleading guilty, and it seems to imply that the applicant’s counsel alone was responsible for his ignorance of the psychiatrist’s letter. There was no evidence that the policy was, in fact, applied in this case. The State has not shown that it discharged its duty to disclose the evidence.

The applicant was not afforded due process and due course of law. The judgment and sentence cannot stand.

It is ordered that the applicant be released from confinement under the sentence entered by the 12th Judicial District Court in Cause 11,999 and that he be remanded to the custody of the Sheriff of Walker County to answer the information filed in that cause.

DOUGLAS, Judge,

dissenting.

A majority of the panel sets aside this conviction because the prosecutor at the time of the trial did not show the then defense counsel a copy of a letter or report of a psychiatrist to counsel who was representing Lewis before the trial. The district attorney received a copy of the letter and gave it to the first attorney for Lewis. At the trial different counsel represented Lewis.

The following is the testimony concerning the letter by the then district attorney, the Honorable Erwin Ernst:

“ . . . I am District Attorney of the County of Walker, State of Texas, and was the District Attorney when Lester Ray Lewis entered a plea of guilty in his case. It is the policy of this office when a plea of guilty is arranged and the Court appoints a lawyer to allow the lawyer complete access to the State’s file. I have talked to Lawyer Murphy in — relating to this and he advises me that he did not peruse the file and I have no reason to believe that he did, if he advises me that he did not. I do not have any independent recollection whether he did read the file or if he didn’t read the file.”

Lewis knew about the psychiatric examination and testified about it at the habeas corpus hearing.

The State’s file was available to defense counsel. The district attorney did not have any independent recollection if counsel read the file or not.

Lewis had not shown that he did not tell his counsel of the examination. Apparently there was no question in the mind of counsel for Lewis that he was not incompetent to stand trial.

The record shows that Lewis knew of the examination and he discussed it at the hearing. He testified rationally.

Darrell White, Sheriff of Walker County, testified at the hearing that he had known Lewis for fifteen years. He testified that Lewis had been convicted for robbery in 1969. He had talked to Lewis while awaiting the habeas corpus hearing and he was just about like he was fifteen years ago and he knows what you are talking about.

The Honorable James F. Warren, District Judge at the time of the hearing, testified that he knew Lewis some ten years before accepting his plea of guilty and he never thought that he was insane and he did not seem any different on the date of the trial.

Lewis testified that he was given a psychiatric examination in Trinity. He related that he was not incapable at the trial. He was not asked by his counsel if he told his trial attorney about the examination.

The evidence at the hearing does not show a suppression of the evidence. A hearing should be held to determine if petitioner was competent to stand trial.

In Brandon v. State (No. 59,348, April 25, 1979), there were errors in the hearing on the competency to stand trial. This Court remanded for another hearing to determine if Brandon was competent at the time of the trial to assist his counsel in making a rational defense. There is no need to set aside the conviction on the statement in the letter about his condition at the time of the commission of the offense.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

On original submission we held that applicant was denied due process and due course of law by the State’s failure to disclose to his trial counsel a letter from a psychiatrist that contained “strong indications that the applicant could have raised a defense of insanity,” and that indicated “the issue of competence to stand trial should have been explored.” It was further held that information about incompetence, just as exculpatory information, must be disclosed even without a specific request by the defense, and that this rule applies to defendants who plead guilty with the same force as to those who plead not guilty.

On rehearing the State argues that an intelligent and voluntary guilty plea waives all non-jurisdictional defects, including violations of due process and that applicant has not contended that the plea was involuntary or unintelligent. The State contends that applicant may be accorded relief only if he alleges and proves that he was in fact incompetent at the time of his guilty plea, or that the plea was otherwise made unintelligently or involuntarily, and urges that the cause be remanded to allow applicant to attempt to sustain his burden on that issue.

A careful examination of the original application for habeas corpus relief reveals that applicant has alleged that his plea was not knowingly and intelligently made. A denial of due process by the failure to disclose the psychiatrist’s letter was alleged as the underlying factual basis for applicant’s request for relief, and was the issue focused on by the district court. The concluding paragraph of the habeas corpus application, however, draws together that allegation with the attack on the plea and asserts:

“The conclusion that can be drawn from the above cited authority as applied to the facts [are] as follows: (1) that the prosecutor did not reveal to Mr. Murphy the existence of evidence which tended to prove that Petitioner was incompetent to stand trial and which was known to him; (2) that said evidence was so material, that it placed the State under a duty to disclose absent any request; (3) and that said failure to disclose was not only material as to competency, but also material as to whether Petitioner’s guilty plea was knowingly and intelligently made.”

Our opinion on original submission resolved the first two points of this three step argument in favor of the applicant. We further held that the rule requiring disclosure of favorable evidence applies with equal force in a guilty plea case as in one where the plea is not guilty. Although we did not explicitly state that the guilty plea was not voluntarily and intelligently made, such a conclusion is implicit in the conjunction of our holding that due process was violated by the failure to disclose the favorable information with our holding that such failure violates due process even in guilty plea cases.

In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108, the issue was “whether a defendant may enter a voluntary plea of guilty to a charge of second-degree murder without being informed that intent to cause the death of his victim was an element of the offense.” The Court held that as a matter of law such a plea could not be voluntary in the constitutional sense because the defendant had not received real notice of the charge against him, a fundamental requirement of due process.

Such a denial of due process before entry of a guilty plea cannot be waived by that plea, but to the contrary, as a matter of law renders the plea involuntary. Just as a defendant must have real notice of the charges against him before his plea may be voluntary, a defendant and his attorney cannot make an intelligent decision on whether to plead guilty when they have not received favorable information that is in the State’s file to which they are entitled. We therefore hold that a showing of the State’s failure to disclose favorable information before entry of a guilty plea leads as a matter of law to the conclusion that the plea was not knowingly and intelligently made. Appellant having made such a showing, we hold that as a matter of law his guilty plea was not knowingly and intelligently made.

The State’s motion for rehearing is overruled.


author: ODOM, Judge. CLINTON, Judge.

text:
    Ex parte Frank Roger MILLARD.
    No. 61495.
    Court of Criminal Appeals of Texas, En Banc.
    June 6, 1979.
    Rehearing Denied Oct. 10, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post conviction habeas corpus application brought pursuant to Article 11.-07, V.A.C.C.P.

On April 12, 1977, petitioner was convicted of aggravated robbery in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County. At the punishment stage of the trial, a jury found the allegations of two prior convictions alleged for enhancement under V.T.C.A., Penal Code, Sec. 12.42(d), to be true, and petitioner was sentenced to life.

In this habeas corpus application, petitioner contends the conviction must be set aside because one of the prior convictions used to enhance his punishment is void. Specifically, he contends his prior conviction in cause number C-71-9595-LH is void because the indictment in that case is fundamentally defective. That indictment alleged in relevant part that appellant did:

“. . . by force, threats and fraud attempt to break and enter a house there situate and occupied and controlled by Farrel K. Baker without the consent of the said Farrel K. Baker and with the intent then and there on the part of him, the said Frank Roger Millard fraudulently to take from said house corporeal personal property therein being, and belonging to the said Farrel K. Baker from the possession of the said Farrel K. Baker without the consent of him, the said Far-rel K. Baker and with the intent to deprive the said Farrell K. Baker the owner of said corporeal personal property of the value thereof, and with intent to appropriate the same to the use and benefit of him, the said Farrel K. Baker, and the said Farrel K. Baker then and there, in carrying out said design to break and enter said house with the intent aforesaid did punch hole in vent of said house, with the intent then and there to so enter .” (Emphasis added)

The trial court recommended that relief be denied because no objection on this ground was raised when proof of the prior conviction was presented during the 1977 trial. It is established however, that a collateral attack may be brought against enhancement of punishment that is based on a void prior conviction. See, e. g., Ex parte Swinney, Tex.Cr.App., 499 S.W.2d 101. It is also established that an indictment must allege all essential elements of the offense. Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751, and authorities cited there.

The indictment in the prior conviction, set out above, was intended to allege attempted burglary under the 1925 Penal Code. The emphasized portion, however, reveals that the name of the owner of the property was alleged where petitioner’s name should have been alleged. It alleges that the owner of the house and property committed the acts alleged, and that the intent was to appropriate property for the use and benefit of the owner. Thus, the indictment fails to allege the elements of the crime of theft, as was essential in an indictment for burglary with intent to commit theft under the former penal code. Alexander v. State, 126 Tex.Cr.R. 495, 72 S.W.2d 1073. See also, Ex parte Valdez, Tex.Cr.App., 550 S.W.2d 88; Weaver v. State, 132 Tex.Cr.R. 253, 103 S.W.2d 974; Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988. We hold that the indictment for attempted burglary in cause number G-71-9595-LH in Criminal District Court No. 5 of Dallas County is therefore void.

Because one of the prior convictions used for enhancement of punishment in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County is void, and because the punishment stage in the trial of that case was decided by a jury, the conviction must be set aside. Hickman v. State, 548 S.W.2d 736. Accordingly, the conviction in that cause is set aside and petitioner is remanded to custody to answer the indictment pending against him in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County. A copy of this opinion will be sent to the Department of Corrections.

It is so ordered.

DOUGLAS, J., dissents.

OPINION ON STATE’S MOTION FOR REHEARING

CLINTON, Judge.

On original submission, we held an indictment for attempted burglary, basing a judgment of conviction that was used for enhancement of punishment, is void because it failed to allege every essential element of the crime of theft, the offense intended to be committed after entry. Requisites of the indictment are governed by the former penal code, attempted burglary being described by Article 1402 thereof.

We granted the State leave to file its motion for rehearing in view of its vigorous contention that the indictment, conceded to be defective, is not fundamentally defective. In its motion the State argues:

“The indictment alleges all of the elements of the offense of attempted burglary. The only defects in the indictment are that the victim’s name appears in two places where the petitioner’s name should appear. This was an error in drafting the indictment. Perhaps this was a careless error, but it is not one that should result in the granting of habeas corpus relief.”

The State also urges that petitioner “should be estopped” from asserting the defect for he passed over what the State counts as five opportunities to challenge the indictment but did not do so “until this instant proceeding.

Prom our further examination of the indictment, applicable statutes and pertinent judicial construction, we have concluded that the indictment is fatally defective for yet another reason. That is, on its face it does not meet one of the essential requisites of an indictment prescribed by Article 21.02, V.A.C.C.P., to wit: “7. The offense must be set forth in plain and intelligible words.” Thus, “the inquiry must be whether the charge in writing furnished that information in plain and intelligible language,” Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975), Benoit v. State, 561 S.W.2d 810, 813 (Tex.Cr.App.1977). If in this fashion the pleading states facts which if true show a violation of the law by the accused, it is not fundamentally defective. Posey v. State, 545 S.W.2d 162, 163 (Tex.Cr. App.1977). See generally Dovalina v. State, 564 S.W.2d 378, 384-385 (Tex.Cr.App.1978) (Concurring opinion of Odom, J.).

Patently the indictment here is far from “plain and intelligible,” for it avers that someone named Parrel K. Baker “in carrying out said design to break and enter said house with the intent aforesaid did punch hole in vent of said house, with the intent then and there to so enter. . .” The indictment does not attribute such acts and conduct, or any others constituting an attempt, to petitioner, Frank Roger Millard.

But the State, without citing any supporting authority, would have us conclude that an indictment that is otherwise patently void will support a conviction if we find that the fatal defect is plainly the result of a scrivener’s error. That proposition, however, ignores settled principles that are fundamental in the jurisprudence of this State concerning an indictment. “The State is required to so plead its case by the indictment that the Court will not be required to indulge in any presumption to complete the pleading,” Sanchez v. State, 155 Tex.Cr.R. 364, 235 S.W.2d 149, 153 (1951). “The pleading must be tested, when it is claimed it is insufficient, by the pleading itself. And whatever testimony was introduced at the trial cannot be referred to as either supporting the allegations or to show their insufficiency, so far as the validity of the indictment itself is concerned,” Ritter v. State, 76 Tex.Cr.R. 594, 176 S.W. 727, 730 (1915). So it is that, even though a clerical error is the only explanation for it, an indictment is fundamentally defective if it alleges an offense to have been committed on an impossible date, McGinsey v. State, 60 Tex.Cr.R. 505, 132 S.W. 773 (1910), or an incompleted date such as “the _day of_, A.D. 1900,” Barnes v. State, 42 Tex.Cr.R. 297, 59 S.W. 882 (1900). See cases annotated under note 28, Article 21.02, V.A.C.C.P., the earliest being Robles v. State, 5 Tex.App. 346, 358-359 (1879), explaining that to hold otherwise would create a precedent and encourage carelessness. One hundred years later we decline to set a precedent and we continue to discourage carelessness. But, more importantly, discovering the defect or having it called to the attention of this Court, we will not assume the risk involved by undertaking to cure the defect through interpretation and construction of the otherwise fatal infirmity. It is quite enough that we note the repugnancy, Brown v. State, 96 Tex.Cr.R. 409, 257 S.W. 891 (1924), or the inherent contradiction, Finklea v. State, 579 S.W.2d 497 (Tex.Cr.App.1979), and send it back to the draftsman for corrective action that reflects the true intendment.

Accordingly, the State’s motion for rehearing is overruled.

      . We are not unaware of our decision in Ex parte Gill, Tex.Cr.App., 509 S.W.2d 357, which held that failure to object to admission of evidence of a prior conviction on grounds of denial of counsel at the revocation of probation in a prior conviction used for enhancement “constitutes a waiver of the claimed rights” (id., at 359) to assistance of counsel. At issue here, however, is not some right that can be waived, but the very power of the trial court to have heard the 1971 case, for the indictment, if fundamentally defective, deprives the trial court of jurisdiction over the case. See, e. g., Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266; American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598; cf. Drumm v. State, Tex.Cr.App., 560 S.W.2d 944.

      .The statement, particularly the underlined portion, is not completely correct. Dated October 21, 1978 and filed October 28, 1978, through court-appointed counsel petitioner presented a petition for writ of habeas corpus to the court below that previously had been prepared by petitioner without benefit of counsel. Therein, under the heading “enhancement paragraphs” petitioner points to the indictment by number, alleges it is “void because the entire concluding paragraph is wrong,” and then proceeds to quote substantially the same language that the original opinion did. After the application, with its accompanying papers, was received by this Court, December 7, 1978, a review of it resulted in the notation “direct appeal pending — no action necessary,” made December 20, 1978. A month or so later, the judgment of conviction of the primary offense was affirmed per curiam and mandate issued February 9, 1979. The per curiam affirmance did not address petitioner’s habeas corpus contention that was rejected because of pendency of direct appeal. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . A defect of substance provided by Article 27.08, V.A.C.C.P., is when it does not appear from the face of the indictment “that an offense against the law was committed by the defendant.”

      . In the circumstances there February 29, 1910 was an impossible date, as was the 7th day of March A.D. “19663,” in Moreno v. State, 375 S.W.2d 309 (Tex.Cr.App.1964).

      . In Bradford v. State, 62 Tex.Cr.R. 424, 138 S.W. 119 (1911) the indictment alleged “one thousand nine hundred and_, just as it did in Jackson v. State, 489 S.W.2d 565, 567 (Tex.Cr.App., on motion for rehearing, 1973): “The fact that the error or omission is a clerical one is immaterial.”

      . To implement this age old policy consideration, this Court must insist that the State correct its mistake rather than “estop” a habeas corpus petitioner from pointing it out. Otherwise a citizen remains incarcerated through carelessness of others — including as here his own counsel — despite his correct assertion that he is illegally confined because of their impermissible errors.


author: ROBERTS, Judge.

text:
    Joseph Earl THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 57333.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Allan R. Lazor, Victoria, for appellant.
    Knute Dietze, Dist. Atty. and Norman D. Jones, Asst. Dist. Atty., Victoria, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ROBERTS, Judge.

The appellant was indicted for criminal attempt to commit murder. The victim testified that she awoke to find a man kneeling beside her bed; the man put his hands around her neck and choked her. The victim’s grandson came into the room and fought with the man, whom he identified as the appellant. The man dove out a window; the appellant’s fingerprint was on the sill. A jury found that the appellant was guilty of criminal attempt to commit murder. The jury also found that the appellant had once before been convicted of a felony, and it assessed his punishment at confinement for life.

The grounds set out in this appeal comprise claims of fundamental error in the charge to the jury. The appellant has no quarrel with the parts of the charge that define the law of criminal attempt to commit murder, or with the part that applies that law to the facts. The first part of the charge with which he finds fault is the part that read, “Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of murder.” Of course, the end of the sentence should have read, “offense of criminal attempt to commit murder.” The appellant made no objection to the charge. This evidently inadvertent mistake could not so have misled the jury as to constitute fundamental error. Compare Ellis v. State, 22 S.W. 678 (Tex.Cr.App.1893).

The charge next instructed the jury, if they found the appellant had not a specific intent to kill, to acquit him of attempted murder and to consider the offense of aggravated assault. Compare Teal v. State, 543 S.W.2d 371 (Tex.Cr.App.1976). The charge then defined and applied the law of aggravated assault in an erroneous way. In two grounds of error, the appellant argues that this error was so fundamental as to call for reversal, even though he did not object to it.

The part of the court’s charge to which we normally look in determining whether the charge is fundamentally erroneous is the part that applied the law to the facts. Jones v. State, 576 S.W.2d 393 (Tex.Cr.App.1979). By this rule, we mean that we normally look to the part that applied the law of the offense for which the appellant was convicted. When the jury found that the appellant was guilty of criminal attempt to commit murder it had no occasion to deliberate whether the appellant was guilty of the lesser included offense. The errors in the charge on the lesser in-eluded offense, for which the appellant was not convicted, could not so have misled the jury as to constitute fundamental error.

Finding no fundamental error, we affirm the judgment.

The sentence must be reformed, for it does not impose a minimum term as is required by the indeterminate sentence law (V.A.C.C.P., Article 42.09, Section 1). Although criminal attempt to commit murder is a felony of the second degree (see V.T. C.A., Penal Code, Sections 15.01(d) and 19.-02(b)), the appellant’s prior felony conviction rendered him liable to punishment for a felony of the first degree. See V.T.C.A., Penal Code, Section 12.42(b). The range of punishment for a felony of the first degree is confinement for life or a term of 5 to 99 years. V.T.C.A., Penal Code, Section 12.32. When a punishment of confinement for life is assessed under such a range of punishment, the sentence must impose the minimum term as well as the maximum. See Sargent v. State, 518 S.W.2d 807, 810 (Tex.Cr.App.1975). Such a punishment for a felony of the first degree differs from the mandatory punishment of confinement for life under V.T.C.A., Penal Code, Section 12.42(d); the sentence of the defendant punished under that statute has no minimum term. See Perez v. State, 578 S.W.2d 753 (Tex.Cr.App.1979). The sentence in this case is reformed to show a term of not less than 5 years or more than life.

Sentence reformed and judgment affirmed.

       The charge actually was on simple assault, for it omitted any reference to aggravating factors.


text:
    Kenneth NIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 57700.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Randy Martin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and R. P. Cornelius, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. Punishment was assessed at twenty years.

In his third ground of error appellant complains of the exclusion of his own testimony about the conversation he had with his wife at the time she was shot.

Appellant and his wife were having marital difficulties, and he discovered she was seeing Larry Gibson. On the afternoon of the shooting appellant came home and confronted his wife with evidence of her affair with Gibson. He had testified to the beginning of their conversation on that afternoon when this point was reached in his direct examination:

“Q. And what did you tell her, then, Kenneth?
“A. Well, I — I told her that Gibson was a child molester; that I couldn’t give her more time to think; I didn’t want him at my house; I didn’t want him around my kids.
“MR. CORNELIUS: We’re going to object to that statement, Your Honor, because it’s based on hearsay.
“THE COURT: Sustained.
“MR. CORNELIUS: We ask—
“THE COURT: The jury will not consider the last statement by the defendant for any purpose whatsoever, ladies and gentlemen.
“MR. CORNELIUS: We further ask that it be stricken from the record.
“THE COURT: Very well. It will be stricken from the record.”

After appellant’s direct and cross-examination was completed before the jury, a more complete bill was made outside the hearing of the jury on this and other matters, and counsel stated his position for the court:

“Q. What did you tell her [his wife]?
“A. I told her about his [Gibson’s] record. I don’t believe she believed me or what have you. However, like I say, when I told her that I would get the children and that they _ _ _ I didn’t think that a divorce court or probation department would allow a child molester to have my child, well, that’s when she became hysterical.
U * * *
“MR. MOORE [defense counsel]: Your Honor, the additional thing — and I’m not sure if it’s in or out — we wanted to offer was this Nixon statement to Mrs.. Nixon to the effect that ‘I’m going to get a divorce and seek custody of the children, because I don’t want them around a child molester.’ Now, this would be the defendant’s — make a separate' tender only as to that statement, which we maintain precipitated her activities and anger to the effect that it’s been asked, and I’m not sure whether it’s before the jury or not. But, at any rate, we would now tender it and ask the Court to allow us to ask him that very question and elicit that response.
(t * * *
“MR. MARTIN [also defense counsel]: Further, the statements by Mr. Nixon— the phone call and the statement to Mrs. Nixon — are a fact and circumstance surrounding the killing, which is admissible under 19.06. And if the State wants to argue that these statements are not true, if they want to argue that Mr. Nixon has made all this up after the fact, that is a jury argument; that goes to the weight to be given the evidence or the testimony, but not to the question of its admissibility. And we feel that those statements are not hearsay and that they’re therefore admissible on that basis.
“THE COURT: All right; Mr. Cornelius?
“MR. CORNELIUS: We have the same objections we had at the time of the trial, Your Honor, which were sustained by the Court; that it is hearsay and improper.
“THE COURT: Well, same ruling, Mr. Martin.”

V.T.C.A., Penal Code Section 19.06, relied on by appellant at trial and on appeal, provides:

“In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.”

It is established that this statute does not change the general rules of evidence regarding hearsay. Erwin v. State, 531 S.W.2d 337; Fazzino v. State, 531 S.W.2d 818. It is also well established, however, that statements offered for the purpose of showing what was said, and not for the truth of the matter stated, do not constitute hearsay. Gholson v. State, 542 S.W.2d 395; Rich v. State, 510 S.W.2d 596; Arnott v. State, 498 S.W.2d 166. The State’s position that the evidence was hearsay is without merit.

Evidence of words spoken during the events surrounding a killing, such as the evidence excluded here, constitutes part of the “circumstances surrounding the killing” under Sec. 19.06, supra. Furthermore, apart from the express rule of Sec. 19.06, the general rule is that an offense does not occur in a vacuum and it is proper to admit evidence of the surrounding facts. Nelson v. State, 511 S.W.2d 18. We conclude that the trial court reversibly erred by excluding the offered testimony.

The judgment is reversed and the cause remanded.