author: KEITH, Commissioner.

text:
    Harvey EARVIN, Appellant, v. The STATE of Texas, Appellee.
    No. 59906.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 10, 1979.
    Rehearing En Banc Denied Feb. 28, 1979.

      Don W. Duran, Lufkin, for appellant.
    Gerald A. Goodwin, Dist. Atty., Lufkin, for the State.
   OPINION

KEITH, Commissioner.

This is an appeal from a conviction for the offense of capital murder wherein the punishment was assessed at death. V.T.C.A., Penal Code Sec. 19.03 (1974), and Vernon’s Ann. C.C.P. Art. 37.071 (Supp.1978-79).

Shortly before dark on December 7, 1976, appellant and his girl friend, 15-year-old Feleca Farrell, went to the rear of a filling station on Raguet Street in Lufkin for the purpose of robbing the attendant of the cash he had collected during the day. Appellant had used cosmetic makeup in painting a mustache on his face and was wearing an Afro-type wig. He was carrying a single-barrel twenty-gauge shotgun.

As he and his companion approached the filling station from the rear, they observed the deceased, Ertis Brock, going toward his car parked nearby carrying a bank bag and some papers. Appellant got very close to him and told Brock to “Hold it, mother fucker”, at which time, according to Farrell, the deceased reached into his back pocket, whereupon appellant shot him in the chest. Appellant and Farrell then ran from the scene, neither taking the money, and appellant dropped the gun some distance from the scene of the murder.

Both parties were apprehended within a few days and each confessed to the details of the crime, and appellant’s confession comes to us without challenge. The State made out its case by the testimony of Farrell and Bill Mickens with whom appellant had planned the robbery several days earlier. Mickens drove appellant and Farrell from the Congo Club to a point near the filling station where Brock was killed. Appellant did not testify nor did he offer any evidence in his own behalf upon the guilt-innocence stage of the trial.

Appellant does not challenge the sufficiency of the evidence to sustain the conviction nor does he complain of procedural errors in the charge. In his first ground of error the complaint is made that the trial court “failed to properly apply the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and erroneously allowed the exclusion for cause of veniremen who had scruples concerning capital punishment.” He then attacks the court’s action in excusing eleven veniremen who either failed or refused to qualify to serve under the terms of V.T.C.A., Penal Code Sec. 12.31(b) (1974).

After a careful and painstaking search of the record, we now state unequivocally that appellant did not object at any time when any of the eleven prospective jurors was excused. In several instances he questioned the particular venireman concerning the person’s feelings toward infliction of the death penalty — often thanking the venireman for the answers given — but never did he interpose an objection to the action of the court in excluding such person from the panel.

All of appellant’s complaints under ground one were considered and overruled by this Court in Hughes v. State, 562 S.W.2d 857, 861 (Tex.Cr.App.1978), wherein we recognized the continuing vitality of Witherspoon but followed our prior holdings that “[fjailure to object to the improper exclusion of veniremen waives that right and such exclusion cannot be considered on appeal.” Ground of error number one is overruled.

In his second ground of error, appellant contends that it was error for the trial court to admit a colored photograph of the deceased showing the bullet hole in the chest. Appellant’s reliance upon Burns v. State, 388 S.W.2d 690 (Tex.Cr.App.1965), is misplaced since Burns was specifically overruled by Martin v. State, 475 S.W.2d 265, 268 (Tex.Cr.App.1972), and we have declined several invitations to reconsider the question. See, e. g., Dugger v. State, 543 S.W.2d 374, 378 (Tex.Cr.App.1976).

In Hughes v. State, 563 S.W.2d 581, 588 (Tex.Cr.App.1978), we again considered a similar contention and used this language:

“In Alford v. State, Tex.Cr., 505 S.W.2d 813, this Court said:
.a photograph, proved to be a true representation of the person, place or thing which it purports to represent, is competent evidence of those things of which it is material and relevant for a witness to give a verbal description.’ ”

We find no merit in ground of error number two and it is overruled.

Appellant next complains of the admission into evidence of State’s Exhibits Nos. 10 and 12, being the outer jacket and sweater worn by the deceased at the time of the shooting. He contends that the clothing was admissible only if it served to illustrate some point, solve some question, or throw some light on a matter in dispute. He argues that since there was ample evidence of the nature and extent of the wound, the location of the entrance into the body, and the cause of death, the clothing could serve only to inflame and prejudice the jury against him.

Although the ground of error is couched in terms of “bloody clothing”, we are not referred to specific pages in the record wherein such claim is supported by testimony. However, since the extreme penalty was assessed, we have made an independent search of the record and do not find that the record supports a charge that the clothing was in fact bloody.

Moreover, Detective Lt. Goodwin of the Lufkin Police Department used the clothing to demonstrate to the jury the angle of the shot, the closeness of the gun to the body when the shot was fired, and was able to demonstrate the relative position of the parties at the time of the encounter. The autopsy revealed not only pellets from the shell but some plastic fragments had lodged in the body of the deceased. Goodwin was able to demonstrate that the gun was extremely close to the deceased’s body when it was discharged. We find no error in the admission of the articles of clothing, assuming it be shown that such articles were in fact bloody.

We do not find the supporting case law cited by appellant to be in point or persuasive. In Garcia v. State, 537 S.W.2d 930, 935 (Tex.Cr.App.1976), a bloody sheet used to gag a jailer and to assist in the perpetration of the offense was held admissible, the Court saying:

“It has been held that bloody clothing is admissible if it has relevance such that a verbal description thereof would be admissible. Short v. State, 511 S.W.2d 288 (Tex.Cr.App.1974); Harrison v. State, 501 S.W.2d 668 (Tex.Cr.App.1973), and cases cited therein.”

While the holes in the articles of clothing could have been described verbally, the alignment of the holes with the wound upon the body — taken along with the testimony of the physician who conducted the autopsy — rendered such articles competent and relevant evidence. As stated in Harrison v. State, 501 S.W.2d 668, 669 (Tex.Cr.App.1973):

“By the device of stipulations, the appellant could not deprive the State of the duty and the function of presenting to the jury all relevant evidence, nor avoid facing the full facts of the crime.”

Finding no merit on ground three, it is overruled.

We experience some difficulty in coming to grips with appellant’s fifth ground of error reproduced in the margin. A study of the ground of error and the argument thereunder leads to the belief that he complains of two distinct matters, (1) “A reliable prediction of the probability defined in Article 37.071(b)(2) is impossible”; and (2) that there is no evidence in the record supporting the probability that the “Appellant will commit criminal acts of violence or constitute a continuing threat to society in the future.”

The first facet of the complaint is answered adversely to appellant’s contentions in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed, 428 U.S. 262, 49 L.Ed.2d 929, 96 S.Ct. 2950 (1976). See also Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977), and authorities therein cited.

The second prong of this complaint is not susceptible of as simple an answer. Pursuant to Art. 37.071(b)(1), (2), and (3), V.A.C. C.P., the court submitted questions to the jury inquiring if they found from the evidence beyond a reasonable doubt (1) that the conduct of the appellant which caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or another would result; (2) that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) that the conduct of appellant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. The jury answered each question unanimously and in the affirmative.

Appellant challenges only the answer to the second question, his argument being that in the absence of evidence supporting an affirmative answer, the charge is arbitrary and violates his Eighth and Fourteenth Amendment rights. He cites only Smith v. Goguen, 415 U.S. 566, 576, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974).

In Robinson v. State, supra, the Court noted that the provisions of Art. 37.071(a), V.A.C.C.P., concerning the presentation of evidence which the “ ‘court deems relevant to sentence’ ” and listed several matters which the jury could consider in determining whether or not a defendant would be a continuing threat to society.

We compare such guidelines with our record noting:

(a) The defendant in our case had no prior criminal record, consequently there was no testimony as to the “severity of his prior criminal conduct.”

(b) When we look to the age of the defendant, we find that he was eighteen years old when the crime was committed and nineteen at the time of trial.

(c) There is no testimony that at the time of the commission of the offense he was acting under duress or under the domination of another.

(d)Nor is there any evidence that defendant was under any form of mental or emotional pressure or any form of insanity or inflamed emotions.

State’s counsel, pointing to language found in Burns v. State, 556 S.W.2d 270, 280 (Tex.Cr.App.1977), allowing the jury to consider the evidence adduced at the guilt/innocence stage in answering the second question as to future conduct, refers to the cold blooded shooting of the seventy-five-year-old victim, to the act of appellant in running away and later looking at television that night without even attempting to learn the fate of the shooting victim. Counsel also mentions the testimony of fourteen-year-old Anthony Farrell, the younger brother of his fifteen-year-old girl friend, that when appellant told him of the murder two days after the crime he laughed and made a joke about it.

Olee Howard, appellant’s cell mate in jail, testified that appellant went into the cell of an elderly sleeping drunk man, where he and another inmate stuffed paper up the trouser leg of the sleeping man, following which appellant set the paper on fire. Neal Cole, the man whose leg was burned, testified to needing medical attention for the burns and the scars on his leg resulting therefrom. Other, testimony related to appellant striking another old man in the jail who had cursed appellant for taking his food from his tray while asleep.

Jailor Stevenson, who “practically lived with [appellant] daily for eight months”, told of problems created in the jail by appellant; that he was boss of the cell block; and that he had a jovial attitude toward his crime.

Sheriff McBride said that he never observed any signs of sorrow or remorse. Deputy Sheriff Hight told of appellant being “cocky” and carefree and “I have never saw [sic] a remorseful minute in him.”

To our short resume of the evidence of the murder, we add that the record shows without contradiction that appellant brutally shot and killed an elderly and unarmed man; that the robbery had been planned for at least two days while he and his confederate Mickens obtained the shotgun and determined just what business establishment would be robbed.

Notwithstanding the age of appellant and his lack of a prior criminal record, we find that the record as a whole supports the jury’s affirmative answer to the second question concerning future conduct. Under Art. 37.071(a), V.A.C.C.P., the court is authorized to admit any evidence which is relevant to the punishment, and the jury is authorized to consider this relevant evidence along with that adduced at the guilt-innocence phase of the trial. Ex parte Granviel, 561 S.W.2d 503, 516 (Tex.Cr.App.1978). Prom our review of the record as a whole, we do not find error has been shown and ground five is overruled.

In his sixth ground of error, appellant contends that death by intravenous injection pursuant to Arts. 43.14 and 43.18, V.A.C.C.P. (1966-1977 Supp.) is a potentially cruel and highly unusual means of execution which is forbidden by the Eight Amendment to the Constitution of the United States and deprives appellant of due process of law and equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. No authorities are cited supporting the argument.

We considered this contention at length in Ex parte Granviel, supra, and found it to be without merit and now adhere to that ruling. See also Felder v. State, 564 S.W.2d 776, 779 (Tex.Cr.App.1978). Ground of error number six is overruled.

Finally, appellant contends that his trial counsel failed to render adequate and effective assistance at the trial, enumerating ten instances wherein counsel failed to interpose “timely and adequate objections.” This is followed by the conclusion that “[s]ueh evidence listed above is inadmissible and highly inflammatory and greatly prejudiced the jury against the Appellant.”

We note at the outset of this discussion that counsel had been retained by appellant’s foster father whom he had represented for twenty-five years; that trial counsel was an experienced lawyer having tried many criminal cases over a twenty-seven-year period. And, as we said in Curtis v. State, 500 S.W.2d 478, 481 (Tex.Cr.App.1973): “Appellant tendered his lawyer an extremely weak hand to play in his defense, but it was well played.”

Many of appellant’s contentions are answered by the authoritative opinion in Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976), wherein many cases are cited. The following quotations are particularly applicable to appellant’s present complaints:

(a) “[C]ounsel having been retained, any claim of incompetency or lack of effective assistance of counsel cannot be imputed to the State.” (531 S.W.2d at 625)

(b) “Appellant’s contention that trial counsel’s failure to actively contest the admission of his confession does not reflect ineffective assistance of counsel absent a showing that the confession was obtained involuntarily.” (Id. at 624)

(c) “Our review of the record does not reflect any willful misconduct by retained counsel without appellant’s knowledge which amounts to a breach of legal duty so as to deny the appellant of the effective assistance of counsel.” (Id. at 626)

There is no attempt at showing that appellant had any tenable objection to the identification of the shotgun (recovered with the assistance of Billy Mickens) or of the wig worn by appellant at the time of the murder. His complaint that his counsel failed to ascertain the length of the sentence of accomplice witness Mickens is refuted by the record. In cross-examination of Mickens, counsel asked:

“Q. Well, you pleaded guilty to the robbery didn’t you?
“A. Yes, sir.
“Q. How much time are you pulling? “A. Fifty.”

We have examined each of the specific complaints mentioned in the brief and find no merit to the contentions now advanced. Appellant’s guilt was established by overwhelming evidence including that of two accomplice witnesses and his own confession. We agree with this assessment by State’s counsel:

“[The] evidence of Appellant’s guilt was so overwhelming that trial strategy dictated that trial counsel assume a posture other than that of firey and righteous indignation against the State’s case.”

While the hindsight of post-trial appointed counsel may perceive instances wherein trial counsel was not perfect and his strategy was not infallible, that is not the test we apply when meeting such complaints. We have read the entire record and conclude that counsel’s defense was not such as to be a breach of a legal duty. The seventh ground of error is overruled.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

CLINTON, J., not participating.

      . Appellant attempted to enter a qualified plea of guilty whereby he admitted shooting the deceased but claiming “I didn’t have no intention of killing the man whenever I went there.” The trial court properly refused to accept such plea and interposed a plea of not guilty to the indictment.

      . “Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

      .The court sustained appellant’s objection to State’s Exhibit No. 11, the shirt worn by deceased, apparently because it had blood stains thereon.

      . “Ground of Error No. Five: Article 37.071, Vernon’s Texas Code of Criminal Procedure, is unconstitutional in that the prediction of a probability of future dangerousness required by Texas law and made in Appellant’s case as the basis for the imposition of the death penalty is so uncertain, vague, unreliable and prone to error on the side of overinclusion that it fails to channel the sentencing decision patterns of juries and is arbitrary.”

      . This language found in 415 U.S. at 576, 94 S.Ct. at 1249 may be the holding which counsel seeks to invoke: “Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.”

      . “This Court has stated that in determining the likelihood of whether or not a defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and the severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity but more than the emotions of the average man, however inflamed, could withstand.” (citations omitted)


source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Walter BELL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 57898.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 24, 1979.
    Rehearing En Banc Denied April 4, 1979.

      Jesse R. Funchess, Houston, for appellant.
    Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). The jury returned an affirmative finding to each special issue submitted under Art. 37.071(b), V.A.C.C.P., and accordingly the punishment was assessed at death.

The record reflects that the bodies of Fred and Irene Chisum were found in the bathtub of their home in Port Arthur on Friday, July 19, 1974. Irene Chisum had last been seen alive at about 6:40 p. m. the prior evening. Fred Chisum was last seen alive at about 8:45 p. m. the same evening.

The bodies of the Chisums were discovered after they failed to arrive at the business they owned and operated known as the “Appliance Service Center.” The Chisums’ service manager, Harry Creswell, sent John Brocks to their home about 11:45 a. m. on Friday, July 19,1974, to check on them. He found the front door ajar and the interior of the home in disarray. He reported back to Creswell, who immediately notified the police and instructed Brocks to return to the Chisums’ home and meet the police. Creswell’s testimony also established that it was common knowledge among the service center’s employees that the Chisums were known to keep the business’ receipts at their home overnight. The record also reflects that the appellant had been employed at the Appliance Service Center for some seven weeks when his employment was terminated on July 5, 1974.

The investigating officers testified that the interior of the home bore signs of violence and that it appeared that the Chisums had been stabbed and strangled. Numerous items of physical evidence from the home as well as photographs of the scene were introduced into evidence.

On the same day the bodies of the Chi-sums were discovered, appellant attempted to cash a check drawn on the Chisums’ account at the Sabine National Bank. The appellant first came under suspicion when the investigating officers began to check on recently fired employees from the Chisums’ business. The investigating officers were advised by the Sabine National Bank that an individual, later identified as appellant, who attempted to cash a check drawn on the Chisums’ account was wearing a green football jersey with the number “12” on it and that he was using an identification card bearing the name “Bobby Williams.”

After the appellant’s arrest, he executed a written consent to the search of his residence, where the police recovered numerous incriminating items, including the ends of an electrical extension cord, other pieces of which were found near the Chisums’ bodies, and a plastic container of coins, which were shown to have been taken from the Chi-sums’ residence. Both the football jersey and the identification card were also recovered from the appellant’s residence.

Appellant gave two written statements, both of which were admitted into evidence after a Jackson v. Denno hearing. Both of the confessions admit the murder of the Chisums. The second written confession also implicates a co-defendant, Sheppard Watson, and admits the robbery and rape of Irene Chisum. The written confessions were consistent with numerous items of physical evidence found at the scene of the crime.

On Monday, July 21, 1974, the appellant volunteered to accompany the investigating officers to the Chisums’ home and to point out the location of some checks which had been part of the day’s business receipts that the officers had been searching for without success. When they arrived at the Chi-sums, appellant pointed out the location of the checks, which were found inside a book.

Officer Calise Blanchard then related a complete oral confession given by the appellant at the scene while he reenacted the entire crime.

The record further reflects that appellant’s fingerprint was found at the scene. A pathologist testified that Irene Chisum died from asphyxiation due to strangulation. He also testified that he found evidence that Irene Chisum had engaged in sexual intercourse at some time soon before her death. A chemist from the Texas Department of Public Safety testified that human blood, type B, was found on various items of clothing and other pieces of physical evidence taken from the Chisums’ residence. Type B human blood was also present on a pair of appellant’s pants that the State contended the appellant had been wearing at the time of the crime.

The appellant offered evidence of an alibi and testimony that, although a high school graduate, he had been in a special education program in the Port Arthur Independent School District.

The sufficiency of the evidence is not challenged by the appellant. We note that the transcription of the court reporter’s notes of appellant’s trial, exclusive of the individual voir dire, comprises some 2,700 pages. We would also note that the State offered some 239 items of evidence and the defendant offered over 30 exhibits.

The appellant initially contends that the trial court erred “in refusing to submit a charge to the jury during the competency hearing in regards to the question of the defendant’s retardation . . .

The record reflects that a question of appellant’s competency to stand trial having been presented to the trial court, a separate jury was impaneled and a trial of the appellant’s present competency conducted. The jury found the appellant competent. Although appellant in his brief asserts that he objected to the court’s charge at the competency trial, the record fails to disclose that such objection or requested charge was presented to the court at the competency trial. Nothing is presented for review. Arts. 36.14 and 36.15, V.A.C.C.P.

The appellant next contends that the trial court erred “in refusing to incorporate testimony on the issue of defendant’s competency into the court records.” There is no citation to the record or discussion in appellant’s brief with respect to this contention. Our own examination of the record leads us to believe that appellant is complaining of the trial court’s failure to transcribe certain testimony elicited at appellant’s competency trial and have it read to the jury during the guilt-innocence stage of appellant’s trial.

The record reflects that during the trial on guilt or innocence a defense witness, Dr. Ruilman, who had testified at the competency trial, was not present. There was discussion between appellant’s counsel, the prosecutor, and the trial judge of whether his testimony from the competency trial could be transcribed and presented to the jury in lieu of having him return to testify. It appears that a written stipulation was entered wherein the appellant and the State stipulated that the testimony of Dr. Ruilman from the competency trial would be transcribed and presented to the jury. It does not appear, that this was ever done. The record does, however, reflect that immediately thereafter Dr. Ruilman appeared in person and testified as a defense witness. No error is shown.

Appellant next contends that the trial court erred “when a juror was stricken because he expressed some conscientious scruples against the death penalty.”

The record reflects the following from the voir dire of Josephine Asbury upon examination by the prosecutor:

“Q. Would the fact that the death penalty would become mandatory if you made the appropriate answers to these questions and made a finding of guilt of Capital Murder, would the fact that the death penalty would then become mandatory have any effect in your general deliberation as to any fact issue in the case, either at the guilt stage or the punishment stage?
“A. Yes.
“Q. You say it would, I take it from the answer that you have some conscientious belief against the death penalty as a punishment for crime?
“A. Yes, sir.
“Q. Could you—and I must ask you this question—it’s our final question, Mrs. Asbury. Can you conceive of any situation in which you as a jur- or could render answers to the questions that would cause the death penalty to be inflicted? Could you conceive of any case where you could vote for a verdict that would result in the death penalty?
“A. What do you mean?
“Q. Well, could you conceive of—for example, a fact situation, a murder bad enough or a situation horrible enough that you as a juror could make these answers knowing that the answers would result in the death penalty?
“A. No; I just don’t believe in the death penalty.”

After further examination by appellant’s counsel, the following exchange took place between the trial court and the prospective juror:

“THE COURT: ... you would be asked certain other questions and you will know that if those questions are answered one way the Court will have to impose the death penalty, and you will know that if the questions are asked [sic] another way a life sentence will have to be imposed. Now, will that have any effect on you in determining what the truth is with respect to the questions which are asked you?
“VENIREMAN ASBURY: I’m afraid it would.”

At this point the trial court sustained the prosecutor’s previously made challenge for cause.

It is clear from the examination of the prospective juror set out above that sustaining the State’s challenge for cause did not violate the teaching of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Furthermore, it is clear that Asbury was disqualified because of her testimony that her opposition to the death penalty would affect her deliberation on the issue of the facts submitted at the punishment phase of the trial. See V.T.C.A. Penal Code, Sec. 12.31(b); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.), cert. denied, 434 U.S. 935, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.), cert. denied, U.S. -, 99 S.Ct. 268, 58 L.Ed.2d 250 (1978); Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978). No error is shown.

The appellant next contends that the trial court erred in ordering a blood sample be taken from the appellant during the course of the trial in order to determine his blood type.

During the course of the trial, the State sought to prove appellant’s blood type by introduction of appellant’s medical records from the United States Marine Corps. The appellant’s objection to the admission of these records was sustained because they were not properly authenticated. The State then proposed that the court order a blood sample be taken at that time from the appellant to determine his blood type. The appellant strenuously objected on the grounds that such a test would violate his right of self-incrimination under the Fifth Amendment of the United States Constitution. The trial court overruled the objection and ordered the sample taken by a registered nurse outside the presence of the jury. The trial court ordered the court reporter to accompany the appellant, his counsel, and the nurse while the sample was taken in order to make a record of the transaction for this Court. Subsequently, testimony from a laboratory technician was admitted, again over appellant’s objection that the evidence was obtained in violation of his rights under the Fifth Amendment of the United States Constitution, that appellant’s blood type was O positive.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), a case involving a conviction for driving while intoxicated, the United States Supreme Court specifically rejected the argument that withdrawal of a sample of a defendant’s blood and receipt in evidence of a chemical analysis of the blood violated the self-incrimination clause of the Fifth Amendment. See also Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954); and compare these with Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

In Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), this Court held that compelling a handwriting sample from a defendant does not constitute compelling an accused to “give evidence against himself” in violation of the Texas Constitutional provision on self-incrimination. The Court further held that compelling a blood test, if taken under conditions which comport with due process, likewise does not violate the state privilege against self-incrimination. This Court reasoned that such tests are non-testimonial in nature and thus the self-incrimination privilege is not implicated under such circumstances. The Court in Olson further noted that many types of physical evidence are compellable from an accused consistent with both the Fifth .Amendment of the United States Constitution and Art. I, Sec. 10, of the Texas Constitution. A partial list of these types of physical evidence include fingerprints, examination of the tongue, fingernail scrapings, footprints, requiring the accused to stand in a lineup, requiring the accused to raise his hand before the jury, a paraffin test, requiring the accused to put on clothes and speak before the jury.

Recently, in Escamilla v. State) 556 S.W.2d 796 (Tex.Cr.App.1977), this Court held that the taking of a blood sample was a search and seizure within the meaning of Art. I, Sec. 9, of the Texas Constitution, and thus the State was required to comply with the provisions of Art. 1.06 and Chapter 18, V.A.C.C.P. At the time of the Escamilla decision, it would have been impossible to obtain a valid warrant since blood was not one of the items for which a search warrant could issue under Art. 18.02, V.A.C.C.P. Since that time, Art. 18.02, supra, has been amended. The holding in Escamilla, supra, was recently reaffirmed in Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977), where this Court made clear again that the holding in Escamilla was grounded on the search and seizure provisions of the Texas Constitution.

In the instant case, the only objection to the admission of the results of the blood typing test was as follows:

“MR. FUNCHESS: Your Honor, we would like to object to any testimony about the blood type or any other aspect about this particular sample being exhibited or reported in front of this jury inasmuch as I think that a prior witness has testified that any blood which might have been given to Mrs. Cutter was seized in violation — was seized without the consent of this defendant, over his objection and we have asserted that the particular sample was seized in violation of the Fifth Amendment of the Constitution and Article 1.02 of the Texas Code of Criminal Procedure and many, many other cases on that subject and we would like to object to this witness testifying as to any particular blood experimentation or report or sampling that she might have had occasion to do.”

Under the holding of Schmerber v. California, supra, this objection was properly overruled. In White v. State, 521 S.W.2d 225 (Tex.Cr.App.1975), this Court reversed a conviction on the grounds of an illegal search and seizure of the defendant’s car. The decision of this Court was “reversed” by the United States Supreme Court in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). In White v. State, 543 S.W.2d 366 (Tex.Cr.App.1976), on remand from the United States Supreme Court, it was urged that the conviction could still be held invalid under the provisions of Art. 1, Sec. 9, of the Texas Constitution. In Part III of the opinion, this Court stated:

“We do not reach this question. The appellant’s sole reliance in the trial court was on cases construing the Fourth Amendment to the United States Constitution. . . At no time during the trial of this case did the appellant urge that Article I, Sec. 9 of the Texas Constitution supported his motion to suppress. “It is fundamental that the grounds for reversal urged on appeal must comport with the objections made at trial. See e. g., Smith v. State, 513 S.W.2d 823, 830 (Tex.Cr.App.1974); Campbell v. State, 521 S.W.2d 636, 637 (Tex.Cr.App.1975). Otherwise nothing is presented for review. Smith v. State, supra; Campbell v. State, supra.
“This rule extends to allegations of constitutional error. Foreman v. State, 505 S.W.2d 564, 566 (Tex.Cr.App.1974).”

We are therefore compelled to hold that the trial court’s overruling of appellant’s objection to the introduction of evidence of the blood sample was proper under the teachings of Schmerber v. California, supra, and the question of the applicability of Art. I, Sec. 9, of the Texas Constitution, and Escamilla v. State, supra, is not before us. Appellant’s contention is overruled.

The appellant next contends that the trial court erred “in refusing to order the district attorney and/or other law enforcement agencies to identify seventeen (17) sets of fingerprints allegedly found at the scene of the crime, none of which belong to the appellant.” The appellant argues that the failure to compel the State to identify the other fingerprints amounted to a suppression of evidence, citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Brady v. Maryland, 373 U.S. 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The record reflects that Officer Herbert F. Johnson of the identification section of the Port Arthur Police Department testified regarding the fingerprints found at the Chisums’ home. Eighteen latent fingerprints were introduced into evidence. One of these, a thumbprint, was found to match the known thumbprint of the appellant. The officer testified that he was unable to identify the remaining seventeen latent prints. He testified that they had been compared against all known suspects in the case and that they could not be identified. He testified also that he attempted to obtain the fingerprints from the bodies of the two victims, but was unable to obtain sufficiently readable prints. We would also note that we have carefully reviewed the testimony of Officer Johnson and have failed to find where the appellant requested the “order” or motion for such an order referred to in appellant’s ground of error. We would further note that his brief contains no references to where such a request can be found in the record.

It is clear from Officer Johnson’s testimony that the existence of the unidentified fingerprints was fully disclosed to the jury and in fact the State offered the unidentified prints into evidence as State’s exhibits. It also appears that they had been tendered to defense counsel. Officer Johnson carefully explained why he was unable to identify the prints and fully explained the identification procedures that were used. No suppression of evidence is shown. Appellant’s contention is overruled.

Appellant next contends that the trial court erred in not allowing him “to mention the lack of fingerprint identification in the presence of the jury.” The circumstances relating to the seventeen unidentified fingerprints have been fully explained in the previous ground of error. In his brief, appellant argues “that since the State was allowed to introduce into evidence the existence of fingerprints at the scene of the crime, appellant should have been allowed to pursue the examination of Officer Johnson in order to place before the jury the fact that no conclusive fingerprints of the appellant were found.” In his brief, appellant makes no citation to where in the record he was not allowed to “pursue the examination of Officer Johnson.” We have reviewed the cross-examination of Officer Johnson by appellant’s counsel and find that appellant’s contentions in his brief on appeal are not supported by the record. The record reflects that appellant’s counsel was allowed wide latitude in cross-examining Officer Johnson and our review of the record fails to disclose any action on the part of the trial court such as appellant asserts in his brief. No error is shown.

Appellant next contends that the State failed to prove that his confessions were voluntarily made. It appears to be appellant’s precise contention that, “As a matter of law appellant lacked the mental capacity to effectively waive his rights in making confessions and/or statements.”

The record reflects that two written confessions were admitted into evidence as well as three “oral confessions” which led to “fruits of the crime.” The trial court conducted extensive hearings outside the presence of the jury in order to determine the admissibility of the written and oral confessions. Findings of fact and conclusions of law were made and are filed in the record. The trial court found that the appellant was given all required warnings and that both the written and oral confessions were freely and voluntarily made. In his brief, appellant does not challenge any of these findings on either a factual or legal basis. His sole contention appears to be that as a matter of law the confessions are inadmissible because “appellant is mentally retarded and lacked the capacity to read and understand certain statements.”

The record does not support appellant’s conclusions. The record reflects that appellant, although a participant in the special education program in the Port Arthur Independent School District, did receive a high school diploma. There was considerable disagreement among the various witnesses as to appellant’s current IQ score, although all agreed that the appellant could properly be characterized as mildly retarded.

Dr. C. J. Ruilman, a psychiatrist called by the defense, was questioned on direct examination by appellant’s counsel as to whether the appellant would “have some problem in conceptualizing things like ‘waiver’ and ‘rights’ and, you know, abstract concepts, waiver of rights and . . . The witness answered, “I should think Walter Bell would be able to get the general idea but would be somewhat deficient in conceiving of the ramifications of waivers of rights and questions of that sort. I think he would probably get the gist of it.” On cross-examination, the witness was asked whether the appellant would have the ability to relate the incidents contained in the various confessions. The witness answered, “I would believe that Walter Bell could give an account such as this, but I do not believe that Walter Bell could put it in such neat and appropriate sentence structure . . .” The witness also acknowledged that the appellant could certainly have understood the instructions that he could stop the interrogation at any time.

In Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970), this Court stated:

“It has been said that there is a general agreement among courts that a confession of crime is not inadmissible merely because the accused, who is not insane, was of less than normal intelligence, Vasquez v. State, 163 Tex.Cr.R. 16, 288 S.W.2d 100, and mere illiteracy has not been considered as a form of mental sub-normality. Berry v. State, 58 Tex.Cr.R. 291, 125 S.W. 580. In Vasquez, the confession was held to be admissible where the accused was shown to have been a ‘mentally deficient person between a moron and an imbecile’ who had a ‘mental age of four years and seven months.’ ”

The Court also stated:

“Of course, if mental subnormality is so great that an accused is incapable of understanding the meaning and effect of his confession, then it would not be admissible. Grayson v. State, 40 Tex.Cr.R. 573, 51 S.W. 246.”

In Grayson v. State, 438 S.W.2d 553 (Tex.Cr.App.1969), this Court held that whether a defendant had the mental competency or intelligence required to waive his right to remain silent and to have counsel present prior to the giving of the confession was for the court and the jury, and the testimony of a psychologist concerning the defendant’s IQ of 51 was not conclusive and did not require a finding that the State failed to demonstrate a knowing and intelligent waiver of the right of self-incrimination. In Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972), this Court, relying on Grayson v. State, supra, and Casias v. State, supra, held that a defendant with an IQ of 76 and an intelligence-emotional level of a 12-year-old was not as a matter of law incapable of waiving his rights. See also Encina v. State, 471 S.W.2d 384 (Tex.Cr.App.1971); Bizzarri v. State, 492 S.W.2d 944 (Tex.Cr.App.1973); Price v. State, 496 S.W.2d 103 (Tex.Cr.App.1973).

In this case, as in Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975), the appellant’s contention that he is mentally incapable of knowingly and intelligently waiving his right to counsel or his right to remain silent is simply not borne out by the evidence.

Appellant next contends that “the court erred in refusing to dismiss the indictment against the appellant on the basis of the death penalty’s unconstitutional and arbitrary application in violation of law.” The appellant relies on the cases of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). We find appellant’s reliance on Jurek v. Texas, supra, to be misplaced since in Jurek the United States Supreme Court found that the Texas capital sentencing procedures, like those of Georgia and Florida, were not violative of the Eighth and Fourteenth Amendments to the United States Constitution. See Gholson and Ross v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. denied, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976), cert. denied, 431 U.S. 960, 97 S.Ct. 2688, 53 L.Ed.2d 279 (1977); Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 55 L.Ed.2d 250 (1977). Appellant’s contention is overruled.

Appellant next contends that the trial court erred in failing to find jury misconduct because the jury deliberated for only one hour before finding appellant guilty of capital murder.

In Garcia v. State, 435 S.W.2d 533 (Tex.Cr.App.1968), a non-capital case, a similar contention was advanced and it appeared that the jury deliberated for approximately 20 minutes before reaching their verdict. This Court stated:

“This Court as early as Turner v. State, 74 S.W. 777 (Cr.App.1903) said:
‘The law has fixed no time in which jurors shall make up their mind as to what their verdict shall be. There is no reflection upon their conduct in any way other than the fact that they were not out considering their verdict exceeding five minutes. This is not misconduct on the part of the jury, and affords no ground setting the verdict aside.’
See also Ann. 91 A.L.R.2d 1238.”

See also 41 Tex.Jur.2d, New Trials, Sec. 76, at 193. No error is shown.

Appellant next contends that the trial court erred in denying his motion for a change of venue. The record reflects that appellant timely filed a motion for change of venue. See Art. 31.03, V.A.C.C.P. The State properly controverted the motion. See Art. 31.04, V.A.C.C.P. Compare Stapleton v. State, 565 S.W.2d 532 (Tex.Cr.App.1978); Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978). The trial judge conducted an extensive hearing on appellant’s motion for change of venue and denied the motion. Compare Henley v. State, 576 S.W.2d 66 (1978).

At the hearing on the change of venue question, appellant presented several witnesses employed by both the print and electronic news media in Jefferson County. All these witnesses testified that the news coverage of appellant’s case had been about average for a case of this nature. Each testified that the news coverage had not been excessive or inflammatory. In addition, each was of the opinion that the appellant could receive a fair trial in Jefferson County. Numerous exhibits were introduced reflecting the various articles that had appeared in local newspapers and transcriptions of television and radio news broadcasts. The appellant specifically cites exhibits which indicate that the District Attorney had indicated that he would seek the death penalty in appellant’s case, that the appellant would undergo a psychiatric examination, and that the appellant had made a confession to the murders. In addition, there are several photographs of the appellant while in custody, apparently being led to and from court. Appellant particularly complains that the photographs of him “displaying his race” and indicating that he was being defended by a lawyer formerly associated with the NAACP demonstrate prejudicial pretrial publicity.

An examination of the exhibits introduced at the hearing on the motion for change of venue indicates that all the information contained in the news reports was accurate and apparently placed there for the purpose of informing the public of current events. Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975); Morris v. State, 488 S.W.2d 768 (Tex.Cr.App.1973); Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967). There is no showing that by reason of pretrial publicity there existed in the public mind a prejudice so great as to prevent appellant from receiving a fair and impartial trial. Morris v. State, supra; Taylor v. State, supra.

We must, however, remember that the question of whether a change of venue should be granted because of prejudicial publicity is one of constitutional dimension and the test to be applied by the court is whether outside influences affecting the community’s climate of opinion as to a defendant are so inherently suspect that the resulting probability of unfairness requires suitable procedural safeguards. Adami v. State, supra. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), eight of the twelve jurors at the defendant’s state court trial thought that he was guilty before the trial began. The United States Supreme Court struck down defendant’s conviction on the ground that pretrial publicity had resulted in a denial of due process. In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), a 20-minute TV film of the defendant’s “confession” was broadcast several times on the local television stations. Again the conviction was struck down, the Supreme Court holding that under these facts prejudice must be presumed. In Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), the defendant’s trial was conducted in a “circus atmosphere” due to the intrusion of press and TV equipment in the courtroom. Again the United States Supreme Court struck down the conviction, finding that under those facts prejudice must be presumed. In Shepard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the Supreme Court found that the defendant’s trial was infected with extremely inflammatory publicity and that the courthouse had been given over to the media in order to accommodate the public’s appetite for carnival. Again the court found that prejudice must be presumed from those facts. We should, however, compare the foregoing United States Supreme Court cases with Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962), where the court found that pretrial publicity surrounding the trial of a former president of the Teamsters’ Union was not so intensive or extensive as to raise a question as to the believability of the jurors’ answers to the questions propounded to them on voir dire. Likewise, in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed. 589 (1975), the Supreme Court held that prospective jurors’ exposure to information about the defendant’s prior crimes and news accounts of the crime for which he was charged did not presumptively deprive the jurors of impartiality nor deny the defendant due process.

In the instant case, the trial court was presented with conflicting testimony with respect to the issue of whether the appellant could obtain a fair trial in the local community because of pretrial publicity. The appellant has simply failed to demonstrate that the trial court abused its discretion in declining to grant a change of venue. Ransonette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975), cert. denied, 423 U.S. 941, 96 S.Ct. 350, 46 L.Ed.2d 274 (1976); Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794 (1978).

Appellant next contends that the trial court erred in hearing the appellant’s motion to suppress his confession and the results of a lineup together outside the presence of the jury. The record reflects that appellant’s counsel affirmatively agreed to this procedure. No error is shown.

Appellant next contends that the trial court erred in failing to grant his specially requested charge on whether the appellant had the mental capacity to consent to the search of his premises.

An examination of the court’s charge reveals that the trial court instructed the jury as follows with respect to this issue:

“You are instructed that under our law as applicable to this ease any search of the premises of the accused without a search warrant, or voluntary consent of the defendant to search, written or oral, would not be lawful. Therefore, in this case should you fail to find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, that consent to the search of the premises of the defendant was voluntarily and understandingly given either orally or in writing, or any combination thereof, then such search would be unlawful and you would wholly disregard the same, and any evidence obtained as a result thereof.”

We find the instruction given by the trial court to be a correct statement of the law and no error is shown in refusing the defendant’s specially requested charge on this issue.

The appellant next contends that the trial court erred in denying his specially requested charge regarding the voluntariness of the confession because he was mentally retarded “to the extent that he was incapable of knowingly, intelligently, and voluntarily making said confession.”

An examination of the charge given reveals that the trial court fully instructed the jury on the law applicable to the admissibility of both the written and oral confessions made by the appellant. The trial court specifically charged the jury that as to each written confession:

“If you fail to find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, that the same was freely and voluntarily, considering each of said exhibits separately, that pri- or to the time the defendant gave the alleged statement or statements or confession or confessions he was warned as aforesaid or that he did not knowingly, intelligently, and voluntarily waive said right prior to and during the making of said statement, then such statement would not be voluntary and in such case, you will wholly disregard said statement or confession and not consider it for any purpose . .

The record further reflects that the court charged the jury in substantially the same manner with respect to the oral confession made by the appellant. We find the charge to the jury to be proper and that appellant’s specially requested charge singling out the issue of mental retardation would have been an improper comment on the weight of the evidence.

The appellant next contends that the trial court erred in failing to submit his specially requested charge on circumstantial evidence. The confessions of the appellant constitute direct evidence of his guilt. Where such confessions are admitted into evidence, there is no requirement to charge on circumstantial evidence. See and compare Williams v. State, 566 S.W.2d 919 (Tex.Cr.App.1978), with Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977).

Appellant next contends that the trial court erred “in refusing to compel the prosecuting attorney to disclose certain oral statements allegedly made by the appellant while under arrest and in custody.”

The appellant does not cite us to any portion of the record where the trial court ordered the discovery of appellant’s oral confessions. Further, examination of the record discloses that at the time evidence of appellant’s oral confessions came into evidence, no objections were made on this basis. Nothing is presented for review.

Appellant in his final ground of error contends that fundamental error is presented in the court’s charge by the “inflammatory wording regarding specific intent to kill.” In argument under this ground of error it appears, however, that the appellant is complaining that there was a comment on the weight of the evidence. No objection was voiced in the trial court. We have carefully examined the complained-of section of the charge and find no fundamental error.

The judgment is affirmed.

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). See Art. 3822, Sec. 6, V.A.C.C.P.

      . Appellant’s second written confession, omitting the warnings and signatures, reads in part as follows:
      “My name is . . . Walter Bell, Jr., and I am a Negro male, 20 years old. I live at 1310 E. 10th. rear, Port Arthur, Texas. I live alone at that address. At the present time I am a laborer at Local 853 on Thomas Blvd. in Port Arthur, Texas. I am also an amateur boxer. “In the morning hours of July 20, 1974, I gave a statement to Calise Blanchard of the Jefferson County District Attorney’s Office and I did not tell all of the truth in that statement and I would like to tell the truth in this statement and correct that statement that I made on July 20, 1974.
      “On July 15, 1974, I was at Gilham Circle along with Sheppard Watson whom I call ‘hobo’, and we were just talking and ‘hobo’ said that he needed some money to go to the Jazz Festival in Houston on the 19th and 20th of July. We discussed going out to the house of Mr. and Mrs. Ferd [sic] Chisum and robbing the Chisums. I told ‘hobo’ to meet me around the Soul Kitchen at 11:00 P.M. we left from the Soul Kitchen (this was Thursday night July 18, 1974) and went to my house to get my bag. I had some handcuffs that I had gotten in Fort Worth at a boxing tournament and some extension cord that was light brown. This cord is the kind that has two wires that run side by side and are more flat than round. Then I had cut the ends of the extension cords off at my house before Sheppard and I got over to my house on the night of the 18th of July. I also had my military separation papers in this bag. This bag is a small brown zipper bag with a Marine Corps emblem on the front of it. I also had a butter knife that I had sharpened and it was in the bag also.
      “Sheppard Watson, ‘hobo’, and I then walked from my house out to the Chisum house. When I was working at Appliance Service Center for Mr. Chisum, Johnny Brocks and I had taken Jerry Brocks out to Mr. Chisum’s house so that Jerry could cut the grass. That is how I knew where Mr. and Mrs. Chisum lived. We walked real fast and I guess it took us about thirty minutes to get from my house to the Chisum house.
      “I was wearing a grey T-shirt with VOTE written on the front of it and some plum colored pants (these pants are very light plum colored) and some black slip on shoes. I was also wearing a blue Levi jacket.
      “ ‘Hobd’ was wearing a blue muscle T-shirt and black pants and a pair of black shoes.
      “When we got to the Chisum house I knocked two times on the front door and Mr. Chisum came to the door and said ‘Who is it?’, and I said, ‘it’s me, Walter’, and Mr. Chisum opened the front door and he said ‘you’ll come on in' and Hobo and I then went into the house and into the living room. Mr. Chisum said, ‘What can I do for you Walter?’ I told Mr. Chisum that I was there to ask him for my job again. Mr. Chisum had fired me from my job at Appliance Service Center on July 12, 1974, because Jerry Brocks had bent the door on one of the trucks on a call when I was with him. Mr. Chisum had fired Jerry and 1 both at this same time. I told Mr. Chisum (while at the house with ‘Hobo’) that the damage to the truck was not my fault and that it was Jerry’s fault and that I wanted to go back to work if it could be possible. Mr. Chisum told me ‘I’m sorry that it happened but people have told me that you and Jerry have been racing in the truck and had been f_around on the job and taking too much time.’ I asked Mr. Chisum for some papers of mine that he had that I needed to get into school on a G.I. loan and he told me that they were at the store. He told me to come to the store Tuesday (meaning Tuesday July 23, 1974) and he would see what he could do to help me. He also asked me if 1 liked working on machines and if I liked fixing things and I told him yes I did. After we finished talking and we were ready to leave I opened my bag and pulled out the butter knife on Mr. Chisum and told him to sit down. He then sat down on the couch in the livingroom [sic] and I put the handcuffs on him. I had given Sheppard the butter knife to hold on Mr. Chisum while I put the handcuffs on him. I then called Mrs. Chisum into the livingroom since she had been in the back part of the house. Mrs. Chisum then came into the living room and sat down. I tied her legs and her hands and we told them to go into the bedroom in the front of the house where there are two twin beds. I brought Mr. Chisum into the bedroom in the front and Sheppard took Mrs. Chisum into the room where there is a couch and a typewriter and a desk. I then went and cut the telephone wire in the front bedroom. Mr. Chisum was trying to get out of the bedroom so I started wrestling with him and I beat him with my two fists and knocked him down while he was on the floor I stuck him two times with the butter knife in the chest area. At this time Mr. Chisum was handcuffed and his feet were tied together with the extension cord I had brought from my house (when I stabbed Mr. Chisum he had untied his feet). Mr. Chisum did not try to get up and run after I had stabbed him. While I was in the front bedroom with Mr. Chisum, Sheppard was in the little room with the couch, typewriter and desk f_Mrs. Chisum. He was f_her on the couch. When I had finished with Mr. Chisum, I went into the little room where Sheppard and Mrs. Chisum were and I f_ Mrs. Chisum. Mrs. Chisum was tied up with electrical cord that I had brought from my house and only her hands were tied. Mrs. Chisum did not have any panties on but did have a blue housecoat and a brassier. I made Mrs. Chi-sum get up off of the couch and take off her housecoat and brassier. After I finished f_ Mrs. Chisum I tied her back up. While I was f_Mrs. Chisum Sheppard was looking through the house and I could hear him pulling out drawers and opening doors and making noise and moving furniture. After . . . Sheppard and I had tied Mrs. Chisum back up (her feet) I choked her with a towel. During the time that Sheppard and I f_Mrs. Chisum she had a towel in her mouth as a gag and she could not talk. After I choked her I brought her into the bathroom and Sheppard and I put her body in the bathtub. After we put Mrs. Chisum’s body in the bathtub we then went into the front bedroom and dragged Mr. Chi-sum from that bedroom and down a short hall and into the bathroom and pushed his body into the bathtub.
      “Sheppard and I then started looking around the house together. We looked everywhere in the house and I took a tape player and some tapes. These tapes were reel type tapes and not cartridge type tapes. I got three watches, two mens and a womans, and $11.00 from the wallet of Mr. Chisum’s wallet and a little plastic box with some new coins that were a half dollar, a quarter, a nickel, a dime and a penney [sic]. Sheppard found some money with three checks in an envelope in the ice box in the kitchen. This was $391.00.
      “I would like to add that after we had finished f_ Mrs. Chisum, she wrote a check out to Bobby Williams at our command in the amount of $600.00 and signed the check. Sheppard and I had untied her hands at this time so that she could sign the check. Right after Mrs. Chisum had signed the check is when I choked her to death. “I then went into the dining room and used the phone and called Flash Cab Co. and the lady there said there were no cabs there. I then called Jet cab and the lady asked me the address I was at and I told her 1020 El Paso. She asked again what the address was and I told her it was something like L-a-s P-a-s-o, and the man said he could not understand so I hung the phone up and left. Before we left the house Sheppard and I split the money up and I got $190.00 and Sheppard kept the rest of the money.” "

      . See also Calley v. Callaway, 519 F.2d 184 (6th Cir. 1975) (en banc) (in the My Lai court-martial case, the Court of Appeals found the petitioner had not been deprived of a fair trial by prejudicial publicity); United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976) (en banc) (in a trial of one of the Watergate defendants, the Court of Appeals held that the trial court correctly refused requests for a change of venue or a continuance when the defendants failed to show any actual prejudice among the members of the jury); see also People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968), reversed as to death penalty only, 403 U.S. 946, 91 S.Ct. 2279, 29 L.Ed.2d 855 (1971) (the Illinois Supreme Court found that there was no showing that any of the 12 jurors who sat on the jury was prejudiced).

      . The complained-of portion of the court’s charge reads as follows:
      “Before you would be warranted in convicting the defendant of capital murder, you must find from the evidence beyond a reasonable doubt not only that on the occasion in question the defendant was engaged in the commission of the felony offense of robbery of Irene L. Chisum, as defined in this charge, but also that during the commission of the robbery the defendant beat the said Irene L. Chisum with his hands and fists, or choked and strangled her with his hands, or choked and strangled her with a piece of cloth, with the intention of thereby killing her. Unless you find from the evidence beyond a reasonable doubt that the defendant, on the occasion in question, specifically intended to kill Irene L. Chisum when he so beat, choked or strangled her, if he did so beat, choke or strangle her, you cannot convict him of the offense of capital murder.”


author: WILLIAM J. CORNELIUS, Commissioner.

text:
    Julio Cabrera SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 55657.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.
    Rehearing En Banc Denied June 6, 1979.

      Richard D. Woods, San Antonio, for appellant.
    Alger Kendall, Jr., Dist. Atty. and Barry Brown, Asst. Dist. Atty., Karnes City, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ., and WILLIAM J. CORNELIUS, Commissioner.
   OPINION

WILLIAM J. CORNELIUS, Commissioner.

In a jury trial, Julio Sanchez was convicted of the offense of possession of more than four ounces of marihuana, a third degree felony. Punishment was set at four years’ confinement.

The sufficiency of the evidence is not challenged. Sanchez’s sole ground of error is that the trial court should have granted his motion to suppress evidence of the contraband because it was obtained by an illegal search.

At about 1:30 a. m. on the day in question, United States Border Patrol Agents Melton and Weinbrenner observed a vehicle traveling on Highway 35 at a high rate of speed. Only one person was in the automobile. The officers gave chase but were unable to overtake the vehicle. A few minutes later they came upon the same car stopped on the highway. Sanchez was at the front of the automobile looking under the hood. The officers asked what was wrong and he answered that he was having carburetor trouble. The officers smelled a strong odor of alcohol and decided that Sanchez was intoxicated. They had also noticed that his automobile trunk appeared to be heavily loaded, and they asked if he would allow them to look in the trunk. He refused. The officers then detained him and called the sheriff’s department. Shortly thereafter, Sheriff Deputies Sanders and Martinez arrived. They arrested Sanchez and took him to the sheriff’s office. Agent Melton testified that, while waiting for the deputies to arrive, he allowed Sanchez to sit in the back seat of the automobile in order to keep warm, and that as he opened the door to let Sanchez in the automobile he smelled a sweet, musty odor which he could not smell in the front seat. When they arrived at the sheriff’s department headquarters, Sanchez was charged with the offense of driving while intoxicated. Agent Melton told Deputy Martinez of the smell which he had noticed, and they examined the back seat of the car with the aid of a flashlight. Through two stereo speaker holes in the back of the car, they could see something behind the seat in the trunk which looked like large burlap bags which are commonly used to transport marihuana. They forcibly opened the trunk and discovered that the bags contained approximately five kilo bricks of marihuana. The trial court overruled the motion to suppress.

Sanchez attacks the validity of the search on several grounds. First, he asserts that his detention was illegal because the United States Border Patrol agents, not being Texas peace officers, did not have the authority to arrest or detain him except for an offense against the immigration laws. We overrule this contention. The border patrolmen did not stop Sanchez. They did, however, detain him after they encountered him stopped on the highway. They testified that, based upon the smell of alcohol and the suspect’s actions, it was their opinion that he was intoxicated. Public drunkenness, to the extent that one may endanger himself or another, is an offense against the public peace. V.T.C.A., Penal Code, Sec. 42.08; Heck v. State, 507 S.W.2d 737 (Tex.Cr.App.1974); McEathron v. State, 163 Tex.Cr.R. 619, 294 S.W.2d 822 (1956). A private citizen may, without warrant, arrest a person found drunk in a public place. Art. 14.01, V.A.C.C.P.; Heck v. State, supra; McEathron v. State, supra. Sanchez’s detention by the border patrolmen until they could deliver him to the duly constituted peace officers of Frio County was proper.

Officer Melton had observed that the trunk of Sanchez’s automobile appeared to be heavily loaded. Before going to the sheriff’s office he noticed, in the vehicle’s rear, an odor of a substance which he later decided was marihuana. When the officers arrived only a few minutes later at the sheriff’s department, Patrolman Melton advised Deputy Martinez of the odor. Together they looked into the back seat and saw, through the speaker holes, burlap bags of the type commonly used to transport marihuana. Those circumstances were sufficient to constitute probable cause to search the trunk of the automobile. It was not necessary that exigent circumstances exist. The fact that the automobile was being held at the sheriff’s department and could have been held there long enough to secure a warrant before conducting the search does not make the search unlawful or unreasonable. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209, reh. den., 423 U.S. 1081, 96 S.Ct. 869, 47 L.Ed.2d 91 (1975); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh. den., 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970). For constitutional purposes, there is no difference between seizing and holding an automobile while securing a search warrant and in conducting an immediate search without a warrant. If probable cause to search exists, either course is reasonable under the Fourth Amendment. Chambers v. Maroney, supra.

Lastly, it is argued that the motion to suppress should have been granted because defense testimony proved that the speakers in the rear of the automobile were in place, both before and after the search, thus casting doubt upon the officers’ testimony that they saw the burlap bags through the speaker holes. We cannot agree. There was no conclusive proof that the speakers were in place at all times, or at the very time of the search. The conflicts in the testimony were for the resolution of the trial judge, and his findings of the facts will not be overturned if they are supported by sufficient evidence. Furthermore, it was not necessary that the officers be able to see into the trunk for the search to be justified. The smell of marihuana in the rear of the automobile, coupled with an absence of any contraband in view in the back seat, would have been sufficient probable cause, under all of the circumstances here, to justify a search of the trunk.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

      . Art. 2.12, V.A.C.C.P. The statute was amended by the 65th Legislature to provide that U. S. Border Patrolmen, although not peace officers of the State, shall have the power of arrest, search and seizure as to felony offenses only.


author: DOUGLAS, Judge. ODOM, Judge,

text:
    Edward Eldon CORLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 58703.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 21, 1979.
    Rehearing Denied April 25, 1979.

      James Knowles, Mike A. Hatched, Tyler, Kenneth H. Crow, Waco, for appellant.
    A. D. Clark, III, Dist. Atty. and William Saban, Asst. Dist. Atty., Tyler, for the State.
   OPINION

DOUGLAS, Judge.

Edward Eldon Corley appeals his conviction for capital murder. The jury returned affirmative findings to special issues concerning whether Corley acted deliberately and whether he would commit further acts of violence. The court assessed his punishment at death.

Vicki Lynn Morris was abducted from the Hebron Baptist Church in Tyler in the late afternoon as she played “The Old Rugged Cross” on the church organ. The following morning her body was found about four miles from the church. She had been shot with a 410 gauge shotgun and she had been raped. Three days after her abduction, appellant was arrested by the sheriff of Pano-la County. The murder weapon was found in appellant’s pickup truck. After he was taken to Smith County he confessed to killing Vicki Lynn Morris. Later he confessed to raping her prior to the murder.

A hearing on appellant’s competency to stand trial was held in Smith County. Then venue was changed to McLennan County.

Corley contends the trial court committed error at the pre-trial competency hearing by submitting to the jury a definition of competency to stand trial that was fundamentally erroneous and a denial of due process. Prior to trial appellant filed a motion for a hearing to determine his competency to stand trial. A jury was impaneled, heard the evidence and received a charge which contained the following standard for determining appellant’s competence:

“To establish insanity at the present time it must be established by a preponderance of the evidence that the defendant is laboring under such mental disease or defect of the mind as to be rendered incompetent to make a rational defense to the charges against him.”

Prior to the submission of the charge, appellant requested that the following language be substituted:

“To establish insanity at the present time, it must be established by a preponderance of the evidence that the defendant does not, by reason of mental disease or defect, have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and that he does not have a rational or factual understanding of the proceedings against him. In this regard, you are instructed that the term mental defect may include mental retardation.”

Corley argues that the standard submitted in the charge was constitutionally impermissible.

A review of the relevant United States Supreme Court eases is necessary. In Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), the Court held that conviction of a mentally incompetent individual violates the due process clause. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), which dealt with a federal prosecution, held that the standard which required only that a defendant be “oriented to time and place and [have] some recollection of events” was inadequate. Dusky required that the standard, in federal prosecutions, be that the defendant have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), attempts to “resolve the difficult question of state-federal relations” posed by Bishop and Dusky. The Pate court first applied the Bishop rule to the states and further held that state procedures must be adequate to insure that an incompetent individual is not tried. Finally, in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the Court held that because there was sufficient evidence raised at the state trial concerning the defendant’s incompetence due process was denied by the state’s failure to conduct a hearing into the defendant’s competency. The Supreme Court has never held that the standard set forth in Dusky was constitutionally mandated as the only standard under which a state can determine an individual’s competency.

The relationship between the federal and state courts concerning the standard for determining insanity at the time of the offense presents an interesting parallel. The federal courts have long expressed dissatisfaction with the M’Naghten Rule for determining insanity. While most American jurisdictions have rejected this outmoded test, the federal courts have not held that it is constitutionally forbidden. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); Corley v. Cardwell, 544 F.2d 349 (9th Cir.1976) cert. denied 429 U.S. 1048, 97 S.Ct. 757, 50 L.Ed.2d 763 (1977).

The Supreme Court has recognized the difficulty of constitutionally requiring a specific standard when dealing with psychiatric-legal principles. In Leland, Mr. Justice Clark wrote:

“The science of psychiatry has made tremendous strides since the test was laid down in M’Naghten’s case, but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law. * * * In these circumstances it is clear that adoption of the irresistible impulse test is not ‘implicit in the concept of ordered liberty.’ ”

Similarly, Mr. Justice Marshall, writing for the plurality in Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), stated:

“This definitional confusion reflects, of course, not merely the undeveloped state of the psychiatric art but also the conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions. * * * It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers.”

The Supreme Court has held that an incompetent individual cannot be tried and that a state’s procedures must be adequate to ensure that this does not happen. The Court has also held constitutionally adequate a standard which tests (1) whether an individual understands the charge against him and (2) whether he can communicate with his attorney.

In the instant case the court submitted the issue of appellant’s competency to the jury. He submitted a definition of present insanity under which appellant must be able “to make a rational defense to the charges against him.” If appellant could not understand the charges against him, he would not be able “to make a rational defense to the charges against him.” Similarly, if he could not communicate with his attorney, he would not be able “to make a rational defense to the charges against him.” The charge given by the court was broad enough to comply with Dusky. The charge provided adequate procedural safeguards to ensure that an incompetent individual would not be convicted. We hold that the charge given in this case did not deny appellant due process.

In Ex parte Long, 564 S.W.2d 760 (Tex.Cr.App.1978), relied upon by the dissent, the main fault with the charge was that it gave the “right and wrong” test as a basis of his competency to stand trial. The court instructed the jury as follows:

“. . . ‘inability at the time of this trial of the defendant to understand the difference between right and wrong, or inability in mind to understand and appreciate the nature of the act charged against him in the indictment and the consequence thereof, or inability of the defendant in mind to make a rational defense concerning said act or offense.’ ”

The trial court required the jury in effect to find that the defendant did not understand the difference between right and wrong and as a result thereof he could not make a rational defense to the act or offense. The right and wrong test was not in the instruction to the jury in the present case.

Corley next contends that his confessions were inadmissible for numerous reasons. After his arrest at 7:30 a. m. on September 17, 1974, in Panola County, Corley was taken before a Panola County magistrate. Corley was subsequently informed that his mother had obtained an attorney to represent him. However, Corley stated he did not want to talk to his mother or the attorney. He also declined to use the telephone on several occasions when he was offered an opportunity to use it. Appellant was taken before a second magistrate and again warned. At 4:20 p. m. on the day of his arrest he signed a confession.

The attorney hired by appellant’s mother testified that he was hired only to represent Corley at the time of the arrest. He also stated that he was never prevented from seeing Corley.

On November 1, 1974, the district attorney went to see Corley in response to a letter from Corley stating he had other things to tell him. At this time Corley added additional facts to his original confession.

Corley was indigent during the time he was held in jail. Counsel was appointed for him after he gave the second confession.

Appellant argues that the confessions were inadmissible because he did not have an attorney to explain his rights to him and he had a per se right to appointment of counsel within a reasonable time after his arrest. There is no per se right to counsel prior to taking a confession. Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976). Appellant did not request an attorney when he was taken before the magistrates and informed of his right to an attorney. He made no request to anyone in the jail for an attorney. Under these circumstances there was no error in the State’s failure to provide him with an attorney.

Appellant also contends that because he was “retarded” he did not possess sufficient mental capacity to make a knowing, intelligent and voluntary waiver of his rights. Four expert witnesses testified concerning appellant’s mental capacity. The experts disagreed over whether or not appellant was retarded although there was a consensus that his IQ was in the low 70’s. The defense experts testified that Corley was not able to understand the warnings given to him prior to his making the confessions. The prosecution experts testified that he was able to understand the warnings. The finder of facts resolved this conflict against appellant. We cannot substitute our judgment concerning the credibility of the witnesses. We hold that the trial court had sufficient evidence before it to conclude that there was a voluntary and intelligent waiver by appellant of his rights before he confessed.

Complaint is next made of the following written response made by the court to the jury’s request for the testimony of the psychologists and psychiatrists:

“With reference to your requests, you are instructed that the Law does not permit a general rereading of the testimony of any witness or witnesses, and in this connection, you are instructed that the Law in this regard provides as follows:
“ ‘In the trial of any criminal case in any District Court of this State, if the Jury disagrees as to the statement of any witness, they may, upon applying to the Court, have read to them from the Court Reporter’s notes that part of such witnesses’ testimony on the particular point in dispute, and no other.’ Unless the Jury has disagreed upon some part of the testimony under the above law, you are not entitled to have any of the testimony reread, but, if you have disagreed upon any point or points in the testimony, and you will so state to the Court in writing, and point out in writing the point or points upon which you have disagreed, then the Court will have the Court Reporter read back to you only the testimony on the point or points in dispute and no other, as best as such testimony can be selected from the recorded testimony. In the event you should state to the Court that you have disagreed as to the testimony of the witness or witnesses referred to above on any point or points and request that the testimony be read back on any point or points, you are instructed that the Court Reporter will need sufficient time to examine all of the testimony of the witness or witnesses in order to get all of the testimony on the point or points concerning your inquiry, and it will take the Court Reporter as long to read the testimony back as it did to put it on, and in the event you ask for such testimony the Court will request you to be patient and allow sufficient time for this to be done in order for you to get the matters you have requested.”

The record does not reflect any objection to this response.

Article 36.14, V.A.C.C.P., requires a written objection to a charge before this Court can review the error. There was no effort made to comply with that provision. Reviewing the charge as a whole, it is an accurate statement of the law and facts and is not improper.

Appellant’s next group of contentions concerns 218 pages of material written by him in jail. This material was in the custody of the State but was given to the defense on October 20, 1975 — two days prior to the beginning of voir dire. Appellant filed a motion for continuance so that he could examine this material. That motion was denied. At the motion for new trial hearing, appellant alleged that the prosecutor committed misconduct by suppressing this material. He introduced the 218 pages into the record.

Corley urges that the denial of the continuance and the motion for new trial was improper. The material was written by appellant while in jail. He was fully aware of it. There was no specific request for this material. It was not signed by appellant. It was not introduced into evidence. It had no relevance, except insofar as it might relate to his mental condition, on the issues in the trial.

Consideration of a motion for continuance is vested in the sound discretion of the trial judge. Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977); Chance v. State, 528 S.W.2d 605 (Tex.Cr.App.1975). There was no abuse of discretion shown. Since appellant was aware of the written material, he cannot claim that the prosecutor suppressed it. Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968). See Ogle v. State, 548 S.W.2d 360 (Tex.Cr.App.1976). No prosecutorial misconduct is shown.

Corley next contends that the court should have instructed the jury not to consider the oral testimony which laid the predicate for exhibits which ultimately were not admitted into evidence. Curtis Owen, the Smith County District Attorney, gave testimony that laid a predicate for the introduction of two letters from Corley to Owen. When the State sought to have these letters admitted, the jury was removed and appellant made several lengthy objections, all of which were overruled. The State then withdrew their offer of the exhibits. Appellant made a motion that the jury be instructed to disregard Owen’s oral testimony concerning the exhibits. The court overruled the objection because it was not made at the time the testimony was given.

There was no objection made by appellant at the time Owen was testifying. Appellant’s objection did not occur until after all of Owen’s testimony. Under these circumstances, nothing is presented for review.

Finally, appellant contends that his motion to quash the indictment should have been granted because our capital punishment procedure is constitutionally impermissible. He argues that the trial court has too much discretion in accepting evidence, that a mandatory death sentence is required, that the second special issue submitted to the jury is vague, that our law constitutes a bill of attainder and that the allegation of “committing and attempting to commit aggravated rape” is duplicitous and repugnant.

We have rejected these arguments before. Our capital punishment procedure is constitutional. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. Appellant’s contention that the indictment is duplicitous and repugnant has also been rejected. In Jurek, we upheld an indictment that alleged “in the course of committing and attempting to commit kidnapping of and forcible rape.” Corley’s objections to the indictment are overruled.

By way of post-submission brief, appellant also contends that admission of his oral confession through the testimony of Dr. Tynus NcNeel was error. He complains of the following:

“. . . However, I do think, from reading some of his writings, that he would be able to read and understand this material [the confession], certainly, for the most part. What I particularly think is important, if I might, is, that this information is essentially the information that was told me by Mr. Corley. So, I feel rather confident in having the opinion that he was aware of this information, and aware of the nature of it, because it was discussed in some detail with me. I stated a while ago, that I was familiar with the story on these papers. And I am familiar with it, from a first hand account of it with him.”

Appellant did not object to this testimony. He did not raise it in his brief filed with the trial court.

Statements made by an accused during a psychiatric examination to determine his competency to stand trial are inadmissible. Article 46.02, V.A.C.C.P. In the instant case, appellant’s confessions were before the jury. McNeel’s testimony did not add any new factual statements made by Corley. The testimony was cumulative. Appellant did not object on any grounds.

The failure to object amounts to a waiver of even constitutional grounds. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). See Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976).

There is no reversible error. The judgment is affirmed.

ODOM, Judge,

dissenting.

I dissent to the majority’s disposition of appellant’s tenth ground of error in which he contends the trial court committed error at the pre-trial competency hearing by submitting to the jury a definition of competency to stand trial that was fundamentally erroneous and a denial of due process. Error at a pre-trial competency hearing may now be raised on appeal from the subsequent conviction. Jackson v. State, Tex.Cr.App., 548 S.W.2d 685.

Before trial appellant filed a motion for a pre-trial hearing to determine his competency to stand trial. A jury was impaneled to decide the issue and after evidence was heard the trial court instructed the jury to determine the issue by this standard:

“To establish insanity at the present time it must be established by a preponderance of the evidence that the defendant is laboring under such mental disease or defect of the mind as to be rendered incompetent to make a rational defense to the charges against him.”

Before this charge was submitted to the jury appellant requested a charge with this definition:

“To establish insanity at the present time, it must be established by a preponderance of the evidence that the defendant does not, by reason of mental disease or defect, have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and that he does not have a rational or factual understanding of the proceedings against him. In this regard, you are instructed that the term mental defect may include mental retardation.”

It is well settled that the definition of competency encompasses a two-part test. That test as set out in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him.” That standard was subsequently applied by the United States Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), and in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The Dusky test has been recognized by this Court in numerous cases. Ex parte Hagans, Tex.Cr.App., 558 S.W.2d 457; Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517; Sandlin v. State, Tex.Cr.App., 477 S.W.2d 870.

The trial court’s deviation from the Dusky standard was fatal in this case. Although the charge given by the judge in the instant case did not use the M’Naghten rule, as has been held improper for determining competency, it did use an instruction similar to a part of the instruction given in Ex parte Long, 564 S.W.2d 760 (Tex.Cr.App., En Banc, 1978). There the trial judge instructed the jury that the standard to use to determine the competency of the accused was:

“Inability at the time of this trial of the defendant to understand the difference between right or wrong, or inability in mind to understand and appreciate the nature of the act charged against him in the indictment and the consequence thereof, or inability of the defendant in mind to make a rational defense concerning said act or offense.” (Emphasis added).

The third of the alternatives submitted in that charge was substantially the same as the standard submitted in this case. The last part of that charge measured competency by the ability of the accused “to make a rational defense concerning said act or offense,” while the present charge similarly instructed the jury that the standard of incompetency was whether or not the accused had the ability “to make a rational defense to the charges against him.” The jury charge on the competency issue in this case was as fully deficient with respect to the constitutional requirements of Dusky as was the one in Long. To instruct the jury that they must find whether the defendant was mentally competent to rationally prepare a defense leaves the jury to speculate as to what legal test is properly applicable. Such a test falls far short of what is required by Dusky, supra.

Since the issue of the appellant’s competency to stand trial was decided under a standard which did not afford him due process of law, the appellant is entitled to a determination of such issue under the proper standards. Furthermore, inasmuch as appellant pointed out the defect in the trial court’s charge by adequate request for a proper instruction, he is also entitled to reversal on state grounds for the trial error in overruling that request. Under state law, appellant was entitled to a more precise instruction to the jury on the standard to determine competency than the conclu-sionary “rendered incompetent to make a rational defense to the charges against him.”

It is also transparently clear that the majority have devalued the constitutional basis of the Dusky test in their effort to analogize the competency issue with the issue of insanity at the time of the offense. These two matters will not support the bridge the majority have attempted to erect between them. There is no established constitutional right to the insanity defense, whereas the right to a fair competency determination is of established constitutional magnitude. It is from this very difference that the insanity defense cases quoted by the majority carry no weight in deciding the issue in this case.

The insanity defense cases exhibit flexibility on the matter of standards, yet no such flexibility characterizes the competency issue. Inasmuch as the insanity defense springs from the inexact if not inconsistent realms of the behavioral sciences, it is to be expected that the standards experimented with on that issue should exhibit considerable difficulties whenever a rigid formulation of the issue is attempted. This is partly because that issue encompasses ethical and legal considerations that reach beyond any fact determination by behavioral scientists. See, Graham v. State, Tex.Cr.App., 566 S.W.2d 941; United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969.

The test for competency to stand trial, on the other hand, is a matter of federal constitutional right, is uniform throughout the land, is not beset with inconsistencies, and speaks to the heart of the matter: does the accused have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and does he have a rational as well as factual understanding of the proceedings against him.

In this case appellant specifically requested a charge in the language of the constitutionally mandated standard. The majority, by approving a test that asks whether the accused was rendered “incompetent to make a rational defense to the charge against him,” have deprived appellant of a fair determination of the competency issue. In this case, the jury, as the fact finder for the competency issue, was given no guidance on what standard to apply. Without any elaboration on what constitutes incompetence, they were instructed to decide whether he was incompetent. The purpose of a jury charge is to instruct the jury on the law. Without guidance on the law the jury cannot do its job. It received no guidance here, and therefore no fair determination of appellant’s competency to stand trial was made. Appellant specifically requested a proper charge on the issue. The trial court committed reversible error under state law when it denied appellant’s requested charge, and it committed reversible error under federal constitutional law when it submitted the erroneous instruction to the jury. The majority are wrong on both state and federal grounds and the judgment should be reversed.

I dissent.

ROBERTS, PHILLIPS and CLINTON, JJ., join this dissent.

      . The Court in Long held that the charge was based upon the M’Naghten standard and the application of such a standard constituted a violation of due process because it measured the competency to stand trial by a standard other than that set forth in Dusky. The majori- ' ty do not adequately distinguish the charge used in Long from the one submitted in this case. The charge in Long was in the alternative and included the terms used in this case. In fact, the charge in Long was more protective of the defendant than the one here, in that one of the alternative standards in that charge was whether the accused could understand and appreciate the nature of the act charged against him in the indictment. Yet, even that was held insufficient.