author: ODOM, Judge. ROBERTS, Judge,

text:
    Jeffery DILLON, Appellant, v. The STATE of Texas, Appellee. Cindy DILLON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57756, 57757.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 22, 1978.
    Rehearing En Banc Denied Dec. 20,1978.

      James H. Kreimeyer, Belton, court appointed, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

These are appeals from convictions for involuntary manslaughter in which Jeffery Dillon and Cindy Dillon pled nolo conten-dere to the court and received punishment terms of five years and three years respectively.

Appellants were indicted for murder under V.T.C.A., Penal Code Sec. 19.02, by failing to provide necessary food and medical care as was their duty as parents, as a result of which their infant child starved to death. They pled nolo contendere to the lesser included offense of involuntary manslaughter under V.T.C.A., Penal Code Sec. 19.05.

In their sole ground of error appellants contend the evidence is insufficient to support their pleas to involuntary manslaughter, and that the evidence, at most, shows criminally negligent homicide. The culpable mental state for murder is to intentionally or knowingly cause the death of an individual. The culpable mental state for involuntary manslaughter is to recklessly cause the death of an individual. Criminal negligence is the culpable mental state applicable to criminally negligent homicide. V.T.C.A., Penal Code Sec. 19.07.

V.T.C.A., Penal Code Sec. 6.03 defines the culpable mental states. The definitions of the three culpable mental states referred to in the preceding paragraph are:

“(b) A person acts knowingly, or with knowledge,, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a re-suit of his conduct when he is aware that his conduct is reasonably certain to cause the result.
“(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
“(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

The distinctions among these culpable mental states, as applied to appellants’ awareness of the fatal consequences of their failure to fulfill their parental duties to provide food or medical care for their infant child (as alleged in the indictment), are distinctions among whether (1) appellants knew their conduct was reasonably certain to cause their child’s death, (2) appellants were aware of but consciously disregarded a substantial and unjustifiable risk that their child’s death would result from their conduct, or (3) appellants ought to have been aware of a substantial and unjustifiable risk that their child’s death would result.

Appellants do not contest the fact that a substantial and unjustifiable risk of their child’s death existed. They argue, instead, that certain testimony showed:

“. . . that Appellants perhaps ought to have been aware of the risk involved to their daughter and that their failure to be aware of the risk constituted a gross deviation from the standard of care of an ordinary person under the circumstances. There is no evidence, on the other hand, that Appellants actually knew of the risk involved to their daughter but consciously disregarded it.”

The question and answer by Dr. Allen upon which appellants rely for this argument are:

“Q. But apparently there were a great many people, while they were concerned about the child, were not so aware of the eminent danger to the child. That’s what my question is addressed to primarily.
“Is it possible that the parents could have been concerned without being aware of the danger and the potential result— inevitable result, I would say? Could they have been aware of the condition without being aware of the fact that death was eminent?
“A. I think that’s possible. I think that death is a hard thing to know about without experience. Maybe they could look at this child and not realize that they could be killing the child.
“I don’t think I could have, but maybe they could have.”

This testimony does not render the evidence insufficient to show appellants were aware of the risk involved.

First, the question and answer are addressed more to whether appellants knew or realized that death would result than to whether they were aware of the risk of death. As such, the question and answer go more to whether appellants possessed the requisite culpable mental state for murder than for involuntary manslaughter.

Second, proof of a culpable mental state generally relies on circumstantial evidence. Upon consideration of recklessness versus criminal negligence, whether one is aware of a requisite risk or simply should be aware of it, is a conclusion to be drawn through inference from all the circumstances by the trier of fact. The statement by a witness that it is possible that a person was not aware of a risk of which most persons similarly situated would be aware is simply a statement of the obvious. The issue is not one of theoretical possibility, but one of whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk. If such an inference is reasonable, it is for the trier of fact to determine which circumstances to accept as proven and whether to draw that inference, and it is not for this Court to overturn such an inference, drawn on the whole of the circumstances, because one witness testified to the possibility that the inference could be false even though soundly supported by the circumstances. Such an approach to the issues of proof of culpable mental states would render the evidence insufficient in all cases, as it is always possible that one’s intents are different than what all outward appearances would indicate.

The ground of error is overruled.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

Appellants contend that the evidence was insufficient to support their pleas of nolo contendere because the State failed to prove that they “recklessly” caused the death of their infant child, Rita Dillon. I would reverse the judgments of conviction.

Rita Dillon died on January 22, 1977 at the approximate age of five months; the cause of death was starvation. Although the exact date is not reflected by the record, it appears that sometime during the month of November, 1976, appellants brought Rita to the emergency room of Darnall Army Hospital at Fort Hood in order to receive treatment for ant bites. The record reflects that Rita was examined and treated by a physician’s assistant who noted on his report that “Examination was normal.”

Rose Hundley, a nurse at the hospital, testified that on January 20, 1977, she met appellants at a bowling alley on post at Fort Hood. Hundley testified that she was “shocked” at the child’s appearance. She also testified that when she was holding Rita, Jeffery Dillon commented, “Don’t you think she is skinny?” Hundley finally testified that when she returned to the hospital that evening she informally notified a few staff members about Rita’s condition.

The record further reflects that appellants were prompted to take Rita to the emergency room for the second time on January 22, 1977, after they discovered her lying in her crib face down with mucous covering her face. En route to the hospital, appellants decided to stop at a convenience drive-in grocery and call for a police escort. An emergency medical technician was called to the scene and found that Rita was already dead.

Dr. William Allen, chief of pediatrics at Darnall Army Hospital, testified that it was his opinion, based on the autopsy report, that Rita’s death was caused by marasmus, or protein calorie malnutrition starvation. Upon examination by the court, Dr. Allen further testified:

“Q We’re all familiar with the failure of children to thrive and this sudden infant death syndrome that is discussed in public media every day.
But given the three criteria that you mentioned a moment ago, the parents that tend in that direction, the social crisis the child tends to be a little bit cranky, and the rigors of Army life and the immaturity of the parents, or lack of knowledge on the part of the parents, wouldn’t each one of those tend to amplify the other and is it possible that the child could just die of benign neglect without the knowledge of the parents?
“A No, sir.
“Q It couldn’t starve to death without them knowing it?
“A No, sir.
“Q Now I’m talking about now, given all the input that we have discussed a moment ago.
“A Sir, I honestly suppose anything is possible, but I don’t see how the kid can get in this shape without—
“Q Would you categorize that as neglect, or abuse?
“A I would categorize that as one of the most horrible things I’ve ever seen in my life, neglect and abuse, and whatever else you want to call it.
“Q The thing that concerns me, if it is that horrible, why the emergency protection authority given by law has not been implemented to have that child placed in emergency protection, because, apparently, there were people who knew about it, but not people with your knowledge and training?
“A That’s correct. I think that if anyone — if any knowledgeable person — I think if any person knowledgeable of the system had seen the child for even a second, that things would have been done.
But, unfortunately, I think the system was unaware that this child existed.
“Q But apparently there were a great many people, while they were concerned about the child, were not so aware of the eminent danger to the child. That’s what my question is addressed to primarily.
Is it possible that the parents could have been concerned without being aware of the danger and the potential result — inevitable result, I would say? Could they have been aware of the condition without being aware of the fact that death was eminent?
“A I think that’s possible. I think that death is a hard thing to know about without experience. Maybe they could look at this child and not realize that they could be killing the child.
I don’t think I could have, but maybe they could have.” (Emphasis added.)

The autopsy conducted on Rita showed, inter alia, that while the child’s stomach contained no recently digested food the terminal colon contained several well-formed, normal-appearing fecal masses.

A person commits the offense of involuntary manslaughter when he recklessly causes the death of an individual. Brooks v. State, 548 S.W.2d 680 (Tex.Cr.App.1977). Reckless conduct as defined by V.T.C.A., Penal Code, Sec. 6.03(c) involves conscious risk creation; that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. See also Lewis v. State, 529 S.W.2d 550, 553 (Tex.Cr.App.1975). The reckless person does not desire that the risk occur nor is he reasonably certain that it will occur; however, he. does perceive it. Thus, where a person drives while intoxicated, speeds through a school zone when small children line the sides of the street, or shoots at beer cans floating on a lake while water skiers go by, the fact finder may infer that the actor perceived the risk — of running over a child, of shooting a skier— and that he consciously disregarded that risk. See V.T.C.A., Penal Code, Sec. 6.03, Practice Commentary.

Criminal negligence as defined by V.T. C.A., Penal Code, Sec. 6.03(d) involves inattentive risk creation; that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof. The essence of criminal negligence is the actor’s failure to perceive the risk. See also Lewis v. State, supra. Thus, where a person passes a long line of cars when his vision of on-coming traffic is obstructed, or leaves a brush fire untended in a residential neighborhood in a strong wind, or locks a young child in a car for several hours on a hot summer afternoon, the fact finder may infer that the actor ought to have perceived the risk incident to his negligent conduct. See V.T.C.A., Penal Code, See. 6.03, Practice Commentary.

As defined, criminal negligence is a lesser culpable mental state than recklessness; mere proof of criminal negligence will not suffice to support a conviction for the offense of involuntary manslaughter. V.T.C.A., Penal Code, Sec. 6.02; Lewis v. State, supra.

The evidence introduced in support of appellants’ no contest pleas shows that approximately two months before Rita Dillon died appellants were informed by a physician’s assistant that their child was “normal”; that two days prior to Rita’s death, nurse Hundley saw Rita, became concerned about the child’s health and casually informed other hospital staff members about Rita’s condition; that appellant Jeffery Dillon at the bowling alley commented to Hundley while she was holding Rita: “Don’t you think she is skinny?”, and finally, that Dr. Allen testified that it was possible for appellants, prior to Rita’s death, to look at their child and not realize it was starving to death.

I would hold that from the evidence presented the trial court was unauthorized to infer that appellants actually perceived the risk to their child’s life and consciously chose to disregard that risk. Thus, the State failed to prove beyond a reasonable doubt the requisite culpable mental state of recklessness, an essential element of the offense charged. The evidence at best shows that appellants were criminally negligent. See Sec. 6.03(d), supra.

For the reasons stated herein, I respectfully dissent.

      . Appellants, originally indicted for the offense of murder under V.T.C.A., Penal Code, Sec. 19.02, entered pleas of nolo contendere to the lesser included offense of involuntary manslaughter under V.T.C.A., Penal Code, Sec. 19.-05(a)(1) which provides that “a person commits an offense if he recklessly causes the death of an individual.”

      . “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

      . “A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”


source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Charles Roy LACKEY, Appellant, v. The STATE of Texas, Appellee.
    No. 54169.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 6, 1978.

      Tom W. Mills, Jr., Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and C. Wayne Huff, Asst. Dist. Attys., Dallas, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a habitation with intent to kidnap. Punishment was assessed by the jury at ten years.

At the outset, appellant contends, “the trial court erred in proceeding to trial without an effective waiver of indictment and therefore a void information.”

The record contains an order of the trial court declaring a mistrial at a prior trial for failure of the jury to reach a verdict where appellant was tried under the same numbered information.

At the trial which resulted in the instant conviction, the record reflects the following transpired:

“THE COURT: Mr. Mills, I assume you will waive the arraignment?
“MR. MILLS: I would rather have arraignment.
“THE COURT: All right. Mr. Macaluso, will you arraign the Defendant? Read both the Affidavit and the Information.
“(Whereupon, the Defendant, Charles Roy Lackey, was arraigned on the Affidavit and Information, in open Court, out of the presence and hearing of the Jury, by Mr. Macaluso.)
“THE COURT: How do you plead?
“MR. LACKEY: Not Guilty.
“THE COURT: Let the record show that the Defendant was arraigned outside the presence of the jury and plead Not Guilty.
“Let the record also show that both the .Affidavit and Information were read to the Defendant and he pled Not Guilty. “MR. HUFF [prosecutor]: For the record, could we have the Defendant state that he does waive Indictment in this cause?
“THE COURT: He has so stated on several occasions, Counsel.
“Let’s bring in the jury.”

The transcription of the court reporter’s notes fails to reveal anything further with reference to waiver of the right to be accused by indictment, nor do we find anything with regard to waiver of indictment in the transcript. The docket sheet reflects notations made at the first trial where a mistrial was declared, but no reference is made to waiver of indictment prior to that trial or at the trial of the instant case. The order declaring the mistrial and the judgment from which appeal is taken, both of which reflect trial was upon information, fail to show that there was a waiver of indictment.

In light of the court’s remarks, we sent for the record insofar as it might relate to appellant’s waiver of indictment where appellant had been tried under the same numbered information and a mistrial had resulted after the jury failed to reach a verdict. The transcription of the court reporter’s notes at that trial reflects the following occurred with regard to trial of appellant upon an information:

“[THE COURT]: Let the record further show that the Defendant and his Attorney agree to go to trial on the Affidavit and information filed in F-76-27-L in lieu of an indictment filed originally in P-75-13174-ML; that this is done with the full knowledge and consent of all parties because of obvious error in the choice of names appearing in the original indictment.”

The record is devoid of any response to the court’s statement by either appellant or his counsel.

Article 1.141, Y.A.C.C.P., provides:

“A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.”

In King v. State, Tex.Cr.App., 473 S.W.2d 43, after holding that waiver of an indictment is not violative of either the Texas or U. S. Constitution, this Court said:

“It is well to bear in mind that a felony information acts in lieu of or as a substitute for an indictment and its validity is therefore essential to the court’s jurisdiction. See Wells v. Sacks, 115 Ohio App. 219,184 N.E.2d 449 (1962). If an accused has not effectively waived his right to an indictment in full accordance with the statute the felony information is void. An indictment is still mandatory in absence of a valid waiver. For the waiver to be effective it must be intelligently, voluntarily and knowingly given by the accused while represented by counsel. See Cross v. United States, 117 U.S.App. D.C. 56, 58, 325 F.2d 629, 631 (1963). The statute provides that such waiver should be made in open court or by written instrument. In the instant case the waiver was entered in open court after the court had carefully advised the appellant of the nature of the charges against him and of his rights, including the right of a grand jury indictment. All of this is reflected by a transcription of the court reporter’s notes. It should be remembered, however, that untranscribed notes of a court reporter can be lost or misplaced, and such notes can be legally destroyed after a full year. Article 2324, Vernon’s Ann.Civ.Stat.
“To prevent the procedure permitted by Article 1.141, supra, from becoming a fertile breeding ground for future post-conviction habeas corpus applications, it would be better practice to have the written waiver executed in open court by the accused and his counsel [citation omitted], after the accused has been advised of his rights by the court. The written instrument should include an admission that the accused has been advised of his rights, and the nature of the charge; and the instrument should be filed among the papers of the cause. The docket sheet and the judgment should also reflect the fact of the waiver and the name of the accused’s counsel at the precise time of the waiver.” [Emphasis supplied.]

The State, in its brief, urges that no error is shown for the following reasons:

“That no detriment was received by appellant is shown by three facts. First, appellant never objected to the use of the information in either case and affirmatively voiced no objection in the first trial. Second, charges were originally brought against appellant through an indictment and the information used only to comply with appellant’s request for a speedy trial. Third, by pleading not guilty to the information it is obvious that the perils imagined by the framers of the constitution in requiring the presentment of an indictment did not arise, as the nature of appellant’s plea was going to remain the same whether occasioned by indictment or information.”

Our decisions in both King v. State, supra, and Chappie v. State, Tex.Cr.App., 521 S.W.2d 280, recognize that waiver of indictment occurs in most cases where a defendant wishes to plead guilty, but that the procedure may be utilized where a plea of not guilty is entered.

Article 1.141, supra, states that, “A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment . . . [Emphasis supplied.] The question is then presented as to whether it is necessary for an accused to personally make an affirmative waiver of the indictment. In Rhynes v. State, Tex.Cr.App., 479 S.W.2d 70, and Goodail v. State, Tex.Cr.App., 501 S.W.2d 342, this Court held that the record must reflect the personal consent of the defendant where the jury in a felony ease is allowed to separate after the charge has been read to the jury. The Court found this requirement under Art. 35.28, V.A.C.C.P., which requires “the consent of each party” for the jury to separate at such a stage of the trial. More recently, in Decker v. State, Tex.Cr.App., 570 S.W.2d 948, this Court held that in the absence of a showing that the defendant upon entering a plea of guilty personally agreed to punishment recommended by the prosecutor and agreed to by the defendant’s attorney, the defendant could not be denied an appeal pursuant to the provisions in Art. 44.02, V.A.C.C.P. Article 44.02, supra, provides that a defendant who has pled guilty may only appeal with the permission of the trial court if the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and “agreed to by the defendant and his attorney.”

We hold that a defendant must personally waive the right to be accused by indictment and, as was stated in King v. State, supra, “For the waiver to be effective it must be intelligently, voluntarily and knowingly given by the accused while represented by counsel.” Does a defendant waive the right to be accused by an indictment by remaining silent and voicing no objection to being tried by information?

In King, we held that since a felony information acts in lieu of an indictment its validity is essential to the court’s jurisdiction and that an indictment is still mandatory in the absence of a valid waiver. It follows that a personal waiver of the accused, given intelligently, voluntarily and knowingly while represented by counsel, is required before a court can obtain jurisdiction to try an accused upon an information in a felony case. Since a valid waiver is a condition precedent to the court acquiring jurisdiction, it is a matter that cannot be waived. While most rights and procedural matters may be waived, jurisdictional matters may not be. Casias v. State, Tex.Cr.App., 503 S.W.2d 262; Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266 (concurring opinion). We hold that the appellant did not waive the right to be tried by an indictment by failing to voice an objection to trial upon a felony information.

The absence of a valid waiver of trial by indictment by the appellant as required by Art. 1.141, supra, mandates reversal of this cause.

The judgment is reversed and the cause remanded.

      . In Chappie v. State, supra, it was noted:
      “The purpose of the statute is, in part, to provide the accused a speedier trial if he so desires.”


author: DOUGLAS, Judge.

text:
    L. D. PRODAN, Appellant, v. The STATE of Texas, Appellee.
    No. 55016.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 6, 1978.

      Donald W. Rogers, Jr., Houston, court appointed on appeal, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Larry P. Urquhart, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction of credit card abuse under V.T.C.A., Penal Code, Section 32.31(b)(4). Punishment, enhanced under the provisions of V.T.C.A., Penal Code, Section 12.42(d), was assessed at life.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) by advancing contentions which counsel says might arguably support the appeal. See Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). A copy of counsel’s brief has been delivered to appellant and appellant has been advised that he would be given an opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed.

Appellant urges two grounds of error which arguably support his appeal and the initial ground of error challenges the sufficiency of the evidence to support the conviction. Consequently, a brief recitation of the facts is necessary.

On May 26, 1976, Officer Shipley was directing traffic in downtown Houston when he observed appellant in the course of a traffic violation of walking against the wait light. As appellant approached him, Shipley noticed that appellant was walking with a swaying motion; and, as appellant got closer, Shipley could smell alcohol on his body and breath and formed the opinion that appellant was intoxicated in public. Shipley arrested appellant for public intoxication and took him to Shipley’s patrol car. Upon the arrival of other officers at the location, appellant was searched incident to his arrest and several credit cards belonging to John M. O’Sullivan were found in appellant’s possession. No change, coins, bills or any identification was found on appellant’s person with the exception of the credit cards.

Jeanne O’Sullivan testified that on May 25, 1976, her billfold was taken from her purse and that the billfold contained several credit cards, including the BankAmericard, made the subject of the instant indictment. Most of the credit cards were made out to her husband, John O’Sullivan. Jeanne O’Sullivan testified that she did not see anyone take her wallet but that she did not give anyone consent or permission to have her credit cards.

Herman Edwards, a service station employee, identified appellant as the person who on May 25, 1976, obtained the key and went to the restroom at the service station and immediately left the premises. Edwards’ employer, Buddy Garner, testified that he noticed water running out of the bathroom of his service station and consequently he went into the bathroom and noticed water coming out of the commode. Upon inspection of the commode, Garner found a wallet in the toilet tank. Garner found identification in the wallet and called John O’Sullivan, who retrieved his wife’s wallet the next day.

Another service station employee recalled giving the key to the restroom to appellant and that it was only around fifteen minutes after appellant had entered the restroom that the wallet was found in the commode in the restroom and that no one else had obtained the key to the restroom during the intervening fifteen minutes from the discovery of the wallet to the time when appellant entered the restroom.

Appellant argues that the evidence is insufficient to support the conviction because the State did not disprove appellant’s explanation for the recently stolen property. He is relying upon the testimony on redirect examination of Officer Shipley for the evidence of appellant’s explanation of the property since appellant did not testify and no witnesses testified in his behalf. Officer Shipley stated on redirect that appellant had told him that he was going to turn the credit cards in. Upon additional questioning, Shipley stated that appellant told him that he had found the cards.

Evidence that the defendant had the personal, unexplained possession of property recently stolen is sufficient to raise a presumption or inference of guilt and to sustain his conviction for theft of that property. See, e. g., Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Sirabella v. State, 492 S.W.2d 571 (Tex.Cr.App.1973); Smith v. State, 518 S.W.2d 823 (Tex.Cr.App.1975). However, evidence that a defendant had the personal possession of property recently stolen is not sufficient to sustain his conviction for theft of that property if when he was first directly or circumstantially called upon to explain his possession of the property he made a reasonable explanation which is not refuted, showing his honest acquisition of the property. Smith v. State, supra.

As in Smith, the appellant relies principally on the case of Huff v. State, 492 S.W.2d 532 (Tex.Cr.App.1973). In that case, although the appellant was shown to be in the possession of a recently stolen automobile, the State also proved the appellant’s explanation was made at the time he was arrested that he purchased the automobile. The State did not refute or prove the falsity of such explanation, and the appellant corroborated his explanation of the purchase of the automobile through testimony of another witness who testified that she had furnished the appellant money to purchase the automobile and had received a receipt which in the process of moving she had misplaced.

Assuming that the statement is an explanation of acquisition, it was for the jury to determine if appellant’s exonerating statement was reasonable and probably true, and the jury was not required to accept the explanation offered by the appellant. See Grant v. State, 507 S.W.2d 732 (Tex.Cr.App.1974); Bryant v. State, 397 S.W.2d 445 (Tex.Cr.App.1966).

In the instant case the State refuted the statement that he was going to turn the cards in to the owners. Both John O’Sullivan and Jeanne O’Sullivan stated that they received no calls from anyone offering to turn the cards over to them, and the State showed circumstantially that appellant was in the restroom where Jeanne O’Sullivan’s wallet was discarded. We conclude that the evidence is sufficient to sustain the conviction.

Appellant contends that the indictment in the instant case is fundamentally defective in that it fails to allege that the credit card in question was taken “without the effective consent of the owner.”

The relevant portion of the indictment alleged that L. D. Prodan “did then and there unlawfully and knowingly steal a BankAmericard credit card owned by Jeanne O’Sullivan, hereafter styled the complainant, from the possession of the complainant with the intent to deprive the complainant of the property.”

V.T.C.A., Penal Code, Section 32.31(b)(4), provides:

“A person commits an offense [credit card abuse] if . . .he steals a credit card or, with knowledge that it has been stolen, receives a credit card with intent to use it, sell it, or to transfer it to a person other than the issuer of the cardholder . . . ”

Appellant filed no motion to quash the indictment; however, the indictment charges the first mode in which the offense of credit card abuse may be committed under Section 32.31(b)(4), supra. As in the case of Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976), the indictment was sufficient to put appellant and his attorney on notice of the crime (credit card abuse) for which he was charged. As we stated in Baldwin, it is not necessary to define theft in credit card abuse just as it is not necessary to define theft or set out all of its elements in a burglary case. Consequently, following the rationale of Baldwin, the fact that the State did not allege that the credit card was stolen “without the effective consent of the owner” does not render the indictment fundamentally defective.

Appellant’s second ground of error is overruled.

The judgment is affirmed.


author: PHILLIPS, Judge.

text:
    Michael Leroy THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55444.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 6, 1978.
    Harris E. Lofthus, Amarillo, for appellant.

      Randall L. Sherrod, Dist. Atty., and Richard L. Wilcox, Asst. Dist. Atty., Canyon, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for criminal trespass. Appellant was found guilty by the jury, and his punishment was assessed by the Court at 270 days in jail and a fine of $500.00.

Appellant was tried with his co-defendants Douglas Mark West and Dewayne Timothy West. The pertinent facts of appellant’s case are identical to those of his co-defendants Douglas Mark West and Dewayne Timothy West, whose appeals were decided by this Court on June 28, 1978, in an opinion by Judge Odom, West v. State, 567 S.W.2d 515, and on November 1, 1978, in an opinion by Judge Roberts, 572 S.W.2d 712 (No. 54,962), respectively. The holding in these prior cases controls the disposition of this case.

We are confronted at the outset with fundamental error in the jury charge that requires reversal in the interest of justice. Article 40.09(13), V.A.C.C.P.

The complaint and information charged that appellant did:

“. . intentionally and knowingly enter and remain in a habitation, without the effective consent of Gail Maureen West, the owner thereof, the said MICHAEL LEROY THOMPSON having notice the entry was forbidden, . . .

In applying the law to the facts in the jury instructions the court charged:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendants, DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST and MICHAEL LEROY THOMPSON on or about the 9th day of April, 1976, in the County of Randall and State of Texas, did then and there unlawfully enter and remain in a habitation, without the effective consent of the said GAIL MAUREEN WEST, the owner, and the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST, and MICHAEL LEROY THOMPSON had received notice that the entry was forbidden, then you will find the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST and MICHAEL LEROY THOMPSON guilty as charged, but if you do not so find, or have a reasonable doubt thereof, you will find the defendant not guilty.”

The indictment here properly alleged the culpable mental element of the offense; the charge to the jury, however, omitted this element of the offense. Failure to include in the jury charge all essential elements of the offense as alleged in the indictment constitutes fundamental error. Shaw v. State, Tex.Cr.App., 557 S.W.2d 305; Peoples v. State, Tex.Cr.App., 548 S.W.2d 893; Long v. State, Tex.Cr.App., 548 S.W.2d 897.

The judgment is reversed and the cause remanded.


author: ROBERTS, Judge.

text:
    Ex parte Frank G. ABBEY, Jr.
    No. 58266.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 6, 1978.

      Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is a post-conviction habeas corpus application. See Art. 11.07, Vernon’s Ann. C.C.P. Petitioner contends that the information in this case is fundamentally defective. The trial court agrees with this contention and recommends that relief be granted on this basis. We hold that the information fails to allege a necessary element of the offense charged and is therefore fundamentally defective. Accordingly, we grant the requested relief.

Omitting the formal parts, the information reads as follows:

“. . . on or about the 11th day of September, 1977, Frank G. Abbey, Jr., hereinafter styled Defendant, did then and there in the County and State aforesaid, did then and there after committing an offense of forgery, a felony, did then and there intentionally and knowingly escape from a penal institution, to-wit: the Kerr County Jail.”

Petitioner was charged with escape as defined by V.T.C.A., Penal Code 38.07, which reads:

“(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.
“(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.
“(c) An offense under this section is a felony of the third degree if the actor:
“(1) is under arrest for, charged with, or convicted of a felony; or “(2) is confined in a penal institution.
“(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape.” (Emphasis added)

As the statute makes clear, escape is generally defined in subsection (a). Subsection (c) makes escape a third degree felony in two specific situations, while subsection (d) provides that escape is a second degree felony whenever one uses or threatens to use a deadly weapon. Subsection (b) provides that escape is a class A misdemeanor in all cases except those described in subsections (c) and (d).

Construing the statute as a whole, it is clear that escape is a misdemeanor under subsection (b) when one escapes from custody after having been arrested for, charged with, or convicted of a misdemeanor. Subsection (c) makes one guilty of a third degree felony if he (1) escapes from custody after having been arrested for, charged with, or convicted of a felony or (2) escapes from a penal institution after having been arrested for, charged with, or convicted of any offense, whether it be a felony or a misdemeanor. Finally, one is guilty of escape as a second degree felony if he escapes from custody after having been arrested for, charged with, or convicted of a felony or a misdemeanor and he uses or threatens to use a deadly weapon.

Thus, an essential element of all forms of escape is the general requirement of subsection (a) — that one have been arrested for, charged with, or convicted of an offense. Garcia v. State, 537 S.W.2d 930, 932 (Tex.Cr.App.1976); Booker v. State, 523 S.W.2d 413, 414 (Tex.Cr.App.1975). Since the information in the present case failed to allege this necessary element, it is fundamentally defective. Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976).

Accordingly, the relief requested is granted and the prosecution under this information is ordered dismissed.

      . Petitioner waived indictment. See Art. 1.141, V.A.C.C.P.

      . See Ex Parte Cannon, 546 S.W.2d 266, 272-274 (Tex.Cr.App.1976) (opinion on State’s motion for rehearing).


author: VOLLERS, Judge.

text:
    Sherman WILKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 58911.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 6, 1978.

      Rip Collins, Austin, for appellant.
    Ronald Earle, Dist. Atty. and Bill White, Asst. Dist. Atty., Austin, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

VOLLERS, Judge.

Appellant entered a plea of guilty to an indictment charging him with burglary of a habitation. In assessing the punishment at confinement in the Texas Department of Corrections for nine years, the trial judge took into consideration an unadjudicated offense occurring in McLennan County, Texas under the provisions of Section 12.45, V.A. P.C.

By four grounds of error, the appellant complains that the trial court erred in taking into account the unadjudicated offense because (1) there was no independent proof of appellant’s guilt of such offense; (2) the trial court did not elicit a sufficient judicial confession from appellant of his guilt of the unadjudicated offense; (3) that the court did not give a sufficient admonition under the provisions of Article 26.13, V.A.C.C.P.; and (4) it was the district attorney of McLennan County who requested the trial court to take such unadjudicated offense into account and not appellant.

Section 12.45, V.A.P.C. provides:
“(a) An individual may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty.
(b) Before a court may take into account an admitted offense over which exclusive venue lies in another county or district, the court must obtain permission from the prosecuting attorney with jurisdiction over the offense.
(c) If a court lawfully takes into account an admitted offense, prosecution is barred for that offense.”

The Practice Commentary to the code notes that this provision of the code is a novel provision which permits the defendant, with the trial court’s agreement, to “clean the slate” of uncharged offenses. It further points out that the appropriate application of this section will improve prison morale and encourage rehabilitative efforts by removing the threat of future prosecution and restrict the use of detainers. In addition to this, it is designed to improve law enforcement’s clearance rate by permitting the disposal of numerous offenses in single criminal action.

Primarily, it should be noted that the statute is drawn in such a manner as to give the defendant charged with the crime the sole option of “cleaning the slate” and barring further prosecution for offenses that are taken into consideration in the adjudication of punishment. Since it is for the defendant’s benefit, it would appear that the strict construction which is urged by the appellant in this case would defeat the purpose for which the legislature enacted this particular section.

In answer to appellant’s grounds of error number one and two, Section 12.45(a) only appears to require that appellant “admit during the sentencing hearing his guilt of one or more unadjudicated offenses.” The record reflects that upon direct examination by his own counsel, after appellant had been properly admonished and his guilty plea accepted, appellant testified:

“Q: And you are the same Sherman Wilkins that is presently charged in cause number 76-434-C in McLennan-Waco, McLennan County, Texas for robbery. Is this correct?
A: Yes.
Q: And your plea here this morning is based in part with an agreement that has been worked out between the District Attorney here and the District Attorney in McLennan County.
A: Yes.
Q: And is based in part on the fact that you are pleading to both of them here this morning. Is this correct?
A: Yes.” (Emphasis added.)

While not a model to show an admission by appellant, this evidence is sufficient to show that appellant was entering a plea of guilty to an unadjudicated offense as well as to the charge of burglary of a habitation. Since we have held that a plea of “true” to convictions alleged for the purpose of enhancement is sufficient to establish such convictions, Latta v. State, 507 S.W.2d 232 (Tex.Cr.App.1974); Graham v. State, 546 S.W.2d 605 (Tex.Cr.App.1977), it would therefore appear that the evidence here is sufficient to show a plea of guilty, or an admission, to the unadjudicated offense which is sufficient to allow the trial judge to take it into consideration and to bar the prosecution of this offense in McLennan County. Grounds of error number one and two are overruled.

As to ground of error number three that there was not a sufficient admonition as to the unadjudicated offenses, this Court has consistently held that Article 26.13, V.A.C.C.P. does not apply to the punishment phase of the trial. Crowder v. State, 424 S.W.2d 637 (Tex.Cr.App.1968); Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974); Von Burleson v. State, 505 S.W.2d 553 (Tex.Cr.App.1974). It is clear that the provisions of Section 12.45(a), providing for the admission of an unadjudicated offense “during the sentencing hearing” refers to the punishment phase of the trial. Therefore, we hold that there is no necessity on the part of the trial judge to admonish appellant under the terms of Article 26.13, V.A.C.C.P. before receiving his admission as to an unadjudicated offense. Ground of error number three is overruled.

By ground of error number four, appellant’s contention that the district attorney of McLennan County requested the trial court to take this unadjudicated offense into consideration is without merit also. The record reflects that the trial judge announced that he had a motion from the district attorney of McLennan County asking him to take into consideration the fact that appellant was charged with aggravated robbery in McLennan County, Texas, but this merely met the requirement of Section 12.45(b) that the court must have permission from the prosecuting attorney of McLennan County before he can take into account an admitted offense where exclusive venue lies in another county or district. Appellant’s response to questioning by his attorney that his plea was based upon an agreement worked out between the district attorney of Travis County and the district attorney of McLennan County and that he was pleading to both the primary offense and the unadjudicated offense are sufficient to show that he was requesting the trial court to consider the unadjudicated offense and therefore satisfy the provisions of Section 12.45(a). Appellant’s ground of error number four is overruled.

Judgment of the trial court is affirmed.


text:
    Cleveland BRYANT, Appellant, v. The STATE of Texas, Appellee.
    No. 55296.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 12, 1978.

      W. A. Messer, III, Belton, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for burglary of a motor vehicle. Appellant was found guilty by a jury; the court then assessed punishment at seven years’ confinement.

Appellant’s only contention is that the evidence is insufficient to show that the entry into the vehicle was without the owner’s effective consent. More specifically, he argues that, although there is evidence that the complainant did not give appellant consent to enter his truck, and there is also evidence that appellant entered a truck, there is insufficient evidence to prove that the vehicle appellant entered was the complainant’s. We agree with appellant’s contention and reverse the judgment.

Ben Selman, a Waco attorney, testified that at approximately two o’clock on the afternoon of August 19, 1976, he was driving through Temple on Interstate 35. He looked off the road toward a nearby parking lot and saw two men engaged in what he thought was a burglary of a motor vehicle. The men were in a red Pontiac automobile with a black front fender. As Sel-man watched, one of them got out of the Pontiac “and crouched down and walked around the front of his car in a crouched position up to the side of another car that was parked there in the parking lot.”

Selman left the freeway and drove up to the offices of the Chupik Corporation, which adjoined the parking lot. As he drove in, he attempted to alert the local police on his citizens’ band radio. After telling a woman in the office about what he thought was happening, Selman returned to the parking lot where the burglary was taking place. Selman stated that this was the parking lot on the south side of the Chupik building, and that it was one of two parking lots next to the building.

When he returned to the lot, Selman saw that the man who had gotten out of the Pontiac was leaning into the second vehicle, which Selman described as a pickup truck. The man’s “arms were extended into the truck and the upper half of his body, and it looked as though he were working on something inside the car.” At trial, Selman was “ninety percent sure” that this person was the appellant.

As Selman began to write down the license number of the Pontiac (DKS 785), the second man, who appeared to be working under the hood of the Pontiac, signaled to Selman and then moved rapidly to get behind the wheel of the car. The appellant walked quickly from the pickup to the Pontiac and got into the passenger side of the car. As he did so he made several movements which caused Selman to fear that appellant was reaching for a gun. As a result, Selman ducked his head and drove out of the parking lot and back to the front of the Chupik building. After determining that the police were on their way, Selman attempted to pursue the Pontiac and did observe the car twice after it left the parking lot.

Jonlene Shortridge, the receptionist and payroll clerk at Chupik Corporation, testified that appellant and another man came into the Chupik offices on August 19, 1976, to apply for a job. She stated that they left the office at approximately 1:30 p. m., which was “about ten or fifteen minutes” before Ben Selman came to the office to report that the burglary was taking place. She also testified that Duane Hahn’s car was parked that day on the company’s employees’ parking lot, which was on the northwest side of the building and which she was unable to see from her office.

Duane Hahn, an employee of the Chupik Corporation, testified that when he arrived at work in his pickup on August 19,1976, he parked in the parking lot on the west side of the Chupik building. He left his truck locked; however, a vent window was missing. During the afternoon, after Hahn “was notified,” he went to his truck and found that the citizens’ band radio in his truck had been partially pulled out of its bracket. Hahn stated he had given no one permission to enter his truck or take his radio.

Fred Gonzales, a patrolman with the Temple Police Department, testified that on August 19, 1976, he received a call on his radio that a vehicle burglary was taking place at the Chupik Corporation. He was informed that the “wanted car” was a red GTO having a black left fender and bearing the license number DKS 785. He also received information that the car was travel-ling on Interstate 35. Responding to the radio call, Gonzales drove to the Interstate, observed a car which matched the description given on his radio, and pursued it. After stopping the car, he arrested appellant and his companion. Gonzales was not able to remember which of the two men was driving and which was in the passenger seat.

The main fact to be proved was that appellant entered the complainant Hahn’s vehicle without Hahn’s consent. Since there was no direct evidence that the vehicle which appellant entered was Hahn’s, the case necessarily rested on circumstantial evidence, and the trial court instructed the jury accordingly.

Every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused and proof amounting to only a strong suspicion or mere probability is insufficient. It is not necessary, however, that every fact point directly and independently to the guilt of the accused, and the cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977); Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978).

In the case before us the only evidence which connects the actions of the accused with Hahn’s pickup is: (1) appellant was seen entering a pickup on a parking lot adjacent to the Chupik Corporation; (2) Hahn’s vehicle, also a pickup, was parked on a lot adjacent to the Chupik building; (3) the damage done inside Hahn’s vehicle occurred on the same day that appellant was seen entering a pickup.

Aside from this evidence, there is nothing to show that Hahn’s vehicle was similar to the one appellant entered: no identity of license plates; nothing as to the make, model, or color of either vehicle; no distinguishing characteristics on either vehicle save the broken vent window on Hahn’s pickup. Also, the State’s evidence as to the location of the vehicles weakens its case against appellant rather than strengthening it. Hahn testified that his pickup was on the west side of the Chupik building, while Jonlene Shortridge testified that it was parked northwest of the building. Selman, on the other hand, stated that appellant’s allegedly burglarious entry occurred in a parking lot on the south side of the Chupik building. There is no diagram in the record of the building and adjoining parking lots, nor does the statement of facts give any indication that such a diagram was used during trial.

This Court has a duty of insuring that no one is convicted of a crime except upon proof beyond a reasonable doubt and, in a circumstantial evidence case, upon proof excluding all other hypotheses except appellant’s guilt. Easley v. State, 529 S.W.2d 522, 525 (Tex.Cr.App.1975). See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We conclude that the evidence is insufficient to sustain the conviction for burglary of a motor vehicle. Compare Freeman v. State, 417 S.W.2d 412 (Tex.Cr.App.1967).

Having found that reversal must result, as the evidence is insufficient, the Supreme Court’s decisions in Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), dictate that no further prosecution be had in this case.

The judgment is reversed and it is ordered that a judgment of acquittal be entered in the trial court.


text:
    Ray Leroy MULCHAHEY, Appellant, v. The STATE of Texas, Appellee.
    No. 54123.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 13, 1978.
    Anthony C. Aguilar, El Paso, for appellant.

      Steve W. Simmons, Dist. Atty. and Thomas C. Roepke, Asst. Dist. Atty., El Paso, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   VOLLERS, Judge.

This is an appeal taken from five convictions for theft. Punishment was enhanced under the provisions of V.T.C.A. Penal Code, Section 12.42(d) and was assessed at confinement in the Texas Department of Corrections for life on each count in the indictment.

Apparently, this is a prosecution brought under the provisions of V.T.C.A. Penal Code, Chapter 3, providing for prosecution in a multiple count indictment of charges arising from the same criminal episode. The indictment alleged five separate offenses of theft in five separate counts. Each count was enhanced by the allegation of prior convictions.

The pertinent portion of each indictment alleging each primary offense recites that appellant

Did then and there unlawfully intentionally and knowingly exercise control over property other than real property, to-wit: [a vehicle] of the value of [$2,000.00 or more but less than $10,000.00] without the effective consent of . . ., the owner thereof, and with intent to deprive [the named owner] of said property, .

In grounds of error 1 through 5, appellant attacks the five counts on the basis that they are fundamentally deficient in that they fail to inform appellant whether he is charged with the actual taking of each vehicle in question or is charged with receiving and concealing stolen property. Appellant cites Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974) for the proposition that “theft” and “receiving and concealing” are separate and distinct offenses, each of which is constituted by different elements. This argument is erroneous in view of appellant’s indictments having been returned after the effective date of the present penal code. Section 31.02, V.T.C.A. Penal Code clearly provides that “theft as defined in Section 31.03 of this code constitutes a single offense superseding the separate offenses previously known as theft . and receiving or concealing stolen property.”

The instant indictment alleges offenses pursuant to the following section of V.T. C.A. Penal Code (effective January 1, 1974 and before amendment effective September 1,1975):

Section 31.03 Theft
(a) A person commits an offense if, with intent to deprive the owner of property:
(1) he obtains the property unlawfully; or
(2) he exercises control over the property, other than real property, unlawfully.
(b) Obtaining or exercising control over property is unlawful if:
(1) the actor obtains or exercises control over the property without the owner's effective consent; or
(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen. [Emphasis supplied.]

The allegations contained in each of these counts follow the suggested enumeration of elements set out in Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (opinion on State’s Motion for Rehearing), in that they allege:

(1) a person
(2) with intent to deprive the owner of property
(3) exercises control over the property, other than real property
(4) without the owner’s effective consent.

The indictments are not fundamentally defective. Grounds of error 1 through 5 are overruled.

The evidence adduced at the single trial reflects that a man who could not be positively identified as appellant left an Avis Car Sales lot in El Paso on March 15, 1974, in a 1972 Ford station wagon in order to test drive the car. The automobile was not returned. The station wagon, valued at approximately $2500, was retrieved in September of 1974 from Saul Saucedo. Sauce-do had bought the station wagon from appellant who stated “he was some kind of dealer from the government;” appellant had given Saucedo the title, license receipt and license plates to the station wagon which Saucedo duly registered with the Texas Highway Department. Saucedo stated he had no reason to believe the car did not belong to appellant until he was contacted by a law enforcement officer and told that the car was thought to be stolen.

On approximately June 17,1974, a Dodge Voyager van disappeared from the used car lot of Dick Poe Chrysler-Plymouth in El Paso. The value of the van was placed at about $5,000. The special owner, Johnny Padilla, had no knowledge as to who had taken the vehicle and testified that he had given no one permission to do so. The vehicle was recovered in the fall of 1974 from Gilbert Estorga. Estorga testified that his friend, Saul Saucedo had told him about the good deal he got in buying a station wagon from appellant. Estorga thereafter initiated contact with appellant who told him he had a van for sale. On approximately July 26, 1974 Estorga paid appellant $950 in cash as a down payment and appellant gave Estorga a receipt, a written warranty for repairs and a title to the van. All of the transaction was witnessed by a notary public. Estorga testified that the license plates were already on the van, which he assumed had been appellant’s personal vehicle. Appellant told Estorga he had obtained the van through the “Embassy Corporation,” which was in fact reflected on the face of the title. Estorga sent the paperwork “to Austin” and received a certificate of title to the van. Estorga stated that the transaction appeared perfectly legitimate, and it was only when Saucedo called to advise him of the stolen status of his station wagon that Estorga contacted the police and discovered that the van he had purchased was likewise stolen.

Johnny Padilla, the used car sales manager at Dick Poe Chrysler-Plymouth, testified that a 1974 Plymouth Custom Surbur-ban wagon disappeared from his lot the same night the Voyager van was taken. Padilla, the special owner of the vehicles, evaluated the wagon at $4900 and stated he gave his permission to no one to take the wagon. The wagon was ultimately recovered from Hector Maynes. Maynes testified that on approximately August 1, 1974 he was told by his brother-in-law, David Escobar, that appellant had a 1974 Plymouth station wagon he would sell for $2400. Escobar brought the vehicle and a car title to Maynes. Maynes met appellant for the first time when appellant and Escobar came to Maynes’ place of employment to make the sales transaction. Maynes had to borrow some of the money, so the transaction took place before a lending officer at the West Texas State Employees Credit Union. It was Maynes’ understanding that he was buying the wagon from both Escobar and appellant; appellant was to receive $2000 and Maynes gave $500 directly to Escobar. Maynes stated that he had no reason to doubt the legitimacy of the sale. On cross-examination it was brought out that Esco-bar had told Maynes that appellant “could get vehicles at a very low rate because he had some purchasing power as a federal agent.”

The latter part of August, 1974, a 1974 Ford Torino Grand Elite was discovered to be missing from the storage lot of Kemp Ford in El Paso. The auditors of Ford Motor Credit Company had been conducting an inventory check at the time of the discovery; the car had been seen last on August 15. Johnny Pattison, the general manager of Kemp Ford, estimated the value of the car at $5,000 and stated that it was a “brand new unregistered car” for which he had the manufacturer’s certificate of origin. The car was recovered by Pattison on October 3, 1974 from the El Paso Police Auto Theft Department. Joe Gutierrez testified that on August 7, 1974, he responded to an ad in the paper concerning a car for sale and ultimately got in contact with appellant. Gutierrez met with appellant and gave appellant $700, for which appellant gave him a receipt. Two days later, appellant met Gutierrez outside the latter’s bank as Gutierrez and a bank officer were looking over the car. Inside, the bank officer gave appellant a bank draft for $2600 and appellant gave Gutierrez some “papers” among which was apparently a title reflecting appellant as the vehicle’s owner. It was brought out on cross-examination that appellant “mentioned he had bought [the car] and he had paid cash through the South Corps Embassy from Viet Nam.”

Roy Blevins, the used car sales manager at Fortune Lincoln Mercury in El Paso testified that on September 17, 1974, a used 1974 Lincoln Continental Mark IV was “taken from the lot without permission.” Blevins had no knowledge of how or by whom the ear was taken. The value of the car was estimated by Blevins at $9,000. William B. McGarity testified that in October, 1974, a man who gave his name as R. A. Mulchahey came into Kumpf Motor Car Co. in Denver, Colorado with a wrecked Lincoln Continental which bore Texas license plates. McGarity stated that the car was “one just like” the Mark IV which had disappeared from Fortune Lincoln Mercury in El Paso. He could not positively identify the appellant as the man who brought the wrecked automobile in. There was no testimony as to how or by whom the car was brought back to Texas and returned to Fortune Lincoln Mercury, though Roy Blevins stated that it was returned to him in January, 1975, and he knew it had been in Denver, Colorado.

In addition to the testimony concerning the five charges against appellant, the State introduced three recent and similar transactions in which appellant had sold automobiles with apparently clear titles to other individuals who later discovered the vehicles had been stolen. Rudy Sandoval, the owner of a Dodge dealership in Las Cruces, New Mexico, testified that the appellant had discussed with him his interest in buying two four wheel drive power wagon Dodge pickup trucks in August of 1974. Appellant told Sandoval he was from the “Van Horn, Pecos [Texas] area” and was in New Mexico pursuant to his welding and pipefitting business. Sandoval stated that a couple of days later he discovered that both trucks — one white and the other “a yellow color” — had disappeared from his sales lot. The value of each truck was placed at $4500; Sandoval saw the trucks eight months later in El Paso. The white truck had been repainted white with blue trim.

David Escobar, a co-worker and neighbor of appellant, testified that in August of 1974 appellant told him he “could get ahold of” a Dodge four wheel drive power wagon pickup truck if Escobar were interested. Escobar paid appellant $1000; appellant gave Escobar “government purchasing forms” and told him to take them to the County offices for plates and registration and Escobar would receive a title. Appellant told Escobar that the wagon as well an another one he had which was yellow had come from Saigon, Viet Nam and was dropped off in Phoenix, that he was purchasing agent with the Federal General Services Administration, and the vehicles were government surplus. Because Esco-bar did not have the $100 appellant told him it would cost to process the forms, he never got the truck registered, and in early September, after an absence from his apartment, Escobar found the government form papers missing. The apartment manager told him appellant had been in his apartment to “change the locks.” Three days later, Escobar discovered that his new truck had disappeared and reported this to the police.

Howard Phelps testified that in late August he was taking merchandise appellant had purchased from his pawn shop to appellant’s car and noticed appellant was driving a white 1974 Dodge pickup with four wheel drive. He asked appellant if he were interested in selling it. Appellant told Phelps he was “a government disbursing agent and he bid on government vehicles from time to time and he needed some capital at this time to bid on more government merchandise. He needed 25% capital to bid on some more government contracts. He called this government surplus items and these trucks were supposedly to come from Saigon, Viet Nam from the Department of Agriculture.” The men negotiated a $4000 purchase price which Phelps paid in cash and appellant gave a “government disbursing form,” stating, “when you buy something from the government, you don’t get a title. You get a green form that entitles you to get a title at the tax office.” Phelps paid the vehicle registration fee, got license plates, and appellant told him they would have to go pick the truck up in Juarez because he was having it painted. On arrival across the international bridge, Phelps put Texas plates on the truck, which was repainted white with blue trim. Phelps bought another four wheel drive Dodge truck from appellant which was “a brown” almost immediately and one day while having lunch to discuss the deal, appellant told Phelps “when the fiscal year ends, the government gets rid of all trucks in inventory and starts over for the new year.” At the same luncheon, appellant showed Phelps a “registration receipt where he bought a 1974 Mark IV” the same way.

George Parker, the manager of the General Services Administration (GSA) Motor Pool in El Paso, testified that he operated a motor vehicle fleet that services the Federal Government, mainly the executive branch. He explained that when vehicles are either surplus or old they are disposed of “on a spot bid sale or letter sale to the public.” According to Parker, there are ten regions in the continental United States, the headquarters of which control all vehicle disposals; there is no regional headquarters in Phoenix nor does the GSA maintain a motor pool or sales office in Saigon, Viet Nam, and any GSA form 97 which reflected that a vehicle had been surplus out of Saigon would not be valid. Parker also testified that none of the vehicle identification numbers (VIN) of the automobiles involved in appellant’s trial matched any of those vehicles contained in the GSA’s inventory.

Albert Stephens, auto theft detail detective of the El Paso Police Department who was the main case investigator, testified that a search of the title histories of the five vehicles revealed that each one had a valid title and a title in which the vehicle identification numbers had been falsified. Stephens explained that no vehicle inspection was required for obtaining title to a new vehicle, one registered under a GSA form 97, or for transferring a title. Stephens stated the only information he had connecting appellant with the false title histories was that his name was reflected on each.

A special investigator for the Texas Department of Public Safety Motor Vehicle Service, Alvin Kilpatrick, explained that a Government form 97 was issued when the GSA sold surplus property: the form was then filled out and, on submission to the Texas Highway Department as having been auctioned as a Government vehicle, the Highway Department issued a title under the VIN number reflected by the form 97. According to Kilpatrick, a GSA form 97 should be in the possession of only specified persons.

Appellant did not take the stand and the only testimony presented went to appellant’s insanity defense.

By grounds of error 6 through 10, appellant asserts the evidence is insufficient to sustain the conviction in each count of the indictment because “no proof is present to show that appellant knew the property was stolen by another and he [appellant] knew it was stolen” and “there is no evidence to show appellant actually took the property.” Appellant argues that the evidence shows only that he had possession of the vehicles, possessed documents for the vehicles which appeared in order and had an explanation as to where he obtained the vehicles. We disagree.

The evidence illustrates clearly that appellant exercised control over each of the five vehicles. His intent to deprive the owners thereof is manifested by his disposal of the vehicles in a manner that made recovery of the vehicles by their rightful owners unlikely; V.T.C.A. Penal Code Section 31.01(3)(C). The testimony regarding recent transactions similar to those alleged was admissible, therefore, on the issue of appellants knowledge of the illegality of his acts, as well as to show a common scheme, plan or design. Etchieson v. State, 574 S.W.2d 753 (Tex.Cr.App.1978). Because this is a circumstantial evidence case, the State was entitled to introduce this testimony in its case in chief as evidence of appellant’s intent and motive to commit theft. Etchieson, supra. See also Jones v. State, 568 S.W.2d 847 (Tex.Cr.App.1978). In addition, appellant’s repeated assertion of how he had obtained the vehicles was fully rebutted by George Parker of the General Services Administration of the Federal government. It was therefore reasonable for the jury to conclude that appellant’s acquisition of the stolen property had occurred in a manner inconsistent with the facts he had claimed to the prospective buyers. We hold that the State proved circumstantially that appellant exercised control over each of the vehicles knowing that he did not have the effective consent of the owner, and with intent to deprive the owner of said property. Callahan v. State, 502 S.W.2d 3 (Tex.Cr.App.1973); Booth v. State, 130 Tex.Cr.R. 9, 91 S.W.2d 713 (1936). Cf. Smith v. State, 518 S.W.2d 823 (Tex.Cr.App.1975).

Appellant’s assertion that his possession of the vehicles was “explained” is untenable. As stated above, appellant’s “explanations” were shown to be impossible, and therefore amount to no explanation. It is well settled that a presumption of a defendant’s guilt of theft alone sufficient to sustain a conviction arises from his possession of recently stolen property, provided that such possession is personal, recent, unexplained and involves a conscious assertion of a right to the property. Rodriguez v. State, 549 S.W.2d 747 (Tex.Cr.App.1977); Barnes v. State, 520 S.W.2d 401 (Tex.Cr. App.1975); Farris v. State, 127 S.W.2d 894 (Tex.Cr.App.1939). Appellant’s possession of the vehicles in question is undisputed; the possessions were recent, see Wall v. State, 167 Tex.Cr.R. 634, 322 S.W.2d 641 (1959); appellant’s explanations of his possessions were proven false by circumstantial evidence, see Callahan, supra, and his sale of the vehicles with falsified titles to third parties was a conscious assertion of his ownership. This, standing alone, is sufficient to support the jury’s finding that appellant committed the thefts. Rodriguez, supra. Additional to this, several defense witnesses testified as to appellant’s history of stealing things, from age six or seven, “throughout his life.” From the time appellant was 15 or 16, he stole things, “mostly automobiles,” to impress people or to “take his friends for joy rides;” appellant was described as a “pathological liar” who stole vehicles and told his parents or wife he was buying them or saying the other parent had bought it for him. According to defense testimony, the 32 year old appellant had been in prison five times, apparently for auto theft, and had never been affected to the extent that he had stopped such activity.

The circumstantial evidence proved that appellant habitually dealt with stolen property; the jury had ample evidence that appellant intentionally and knowingly exercised control over the vehicles in question without the consent of the owners, with the intent to deprive the owners thereof. Hardage v. State, 552 S.W.2d 837 (Tex.Cr.App.1977). Grounds of error 6 through 10 are without merit.

By grounds of error 11 through 15, appellant asserts that the trial court erred in charging the jury on each of the five causes in that the court expressed an opinion as to the weight of the evidence concerning whether or not appellant was guilty or not by reason of insanity. Examination of the court’s charge at the guilt-innocence stage reveals that except for the dates, property descriptions and owners, all five charges were substantially identical and read:

“If you believe from the evidence beyond a reasonable doubt that on or about [date], in El Paso County, Texas, the Defendant intentionally or knowingly exercised control over property other than real property, [a vehicle] of the value of two hundred dollars or more, but less than ten thousand dollars, without the effective consent of [owner] . . ., with intent to deprive said owner of said property, you will find the defendant guilty as alleged in [count number] of the indictment . . ., unless you find him not guilty by reason of insanity, as indicated in paragraph [number], below. If you do not so believe beyond a reasonable doubt, you will find the defendant not guilty of count [number] in the indictment.”

Appellant complains that this charge placed his burden of proof on the defensive issue of insanity at “beyond a reasonable doubt.” Appellant concedes by his brief that “the court did charge immediately thereafter as to the proper law [concerning insanity].” Appellant apparently recognizes that the charge as a whole is clearly sufficient and his attack on the parts thereof is misplaced. McEIroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Mathis v. State, 504 S.W.2d 448 (Tex.Cr.App.1974). Furthermore, the record reflects that no objection was made to the charge; therefore, nothing is presented for review. Soto v. State, 513 S.W.2d 931 (Tex.Cr.App.1974). See also Article 36.14, V.A.C.C.P.

The judgments of conviction are affirmed.

      . V.T.C.A. Penal Code, Section 12.42(d) provides:
      (d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.

      . The value of the vehicles alleged in the five counts are $2,000, $4,000, $4,000, $4,000 and $8,000, respectively.

      . Numerous documentary exhibits were introduced at trial, but none appears in the record on appeal. The testimony elicited from Gutierrez concerning the “papers” appellant gave him is unclear:
      Q: [by prosecutor]: I will show you here State’s Exhibit Number 40 and ask you to look at it and see if you can identify it. It’s two separate items.
      A: Both of these ones are license tags for the State of Texas and each says the name of the person who drives the car. The other one is the state in where it came from.
      Q: All right. Now, the first two pieces of paper, where did you receive those?
      A: The first two pieces I received those at the bank from him, from the Defendant. ******
      Q: You received those at the bank?
      A: And this is the one that belongs to me right here.
      Q: The next two are actually tag license receipts that you received?
      A: Right.

      . The State sought to introduce these transactions under the provision of V.T.C.A. Penal Code Section 31.03(c)(1) which provides:
      (c) For purposes of Subsection (b)(2) of this section [see supra]:
      (1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty;
      The admission of the testimony introduced pursuant to the above was unobjected to and is not attacked as error on appeal.

      . Parker stated that a sedan with less than 60,000 miles or a four wheel drive vehcile with less than 40,000 miles would not be considered old enough to sell. He added that it generally takes three to five years to put these amounts of miles on vehicles.

      . According to the testimony, the VIN numbers on the vehicles themselves had remained unaltered except for one, the van ultimately bought by Gilbert Estorga.


author: PHILLIPS, Judge. DOUGLAS, Judge,

text:
    Lehman George DONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 54629.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 13, 1978.
    William W. Chambers, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Marvin L. Collins, Greg Pipes, Burney Walker and Can-dyce W. Howell, Asst. Dist. Attys., Fort Worth, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment, with the finding of one prior conviction, was assessed at 25 years’ imprisonment.

At the outset, we are confronted with fundamental error in the charge which dictates that we reverse the judgment.

The pertinent part of the indictment alleges that the appellant

“intentionally and knowingly while in the course of committing theft and with intent to obtain and maintain control of property of George M. Bond, the owner, to-wit: money without the effective consent of George M. Bond and with intent to deprive George M. Bond of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a firearm, intentionally and knowingly threaten and place George M. Bond in fear of imminent bodily injury and death;

It is apparent that appellant was charged with aggravated robbery pursuant to V.T. C.A., Penal Code, Sections 29.02(a)(2) and 29.03(a)(2). However, the court's charge to the jury at the guilt or innocence stage of the trial provided:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 24th day of September, 1975, in Tar-rant County, Texas, the defendant, Lehman George Donald, did, without the effective consent of George M. Bond, the owner, take and exercise control over the corporeal personal property of George M. Bond, to-wit, money, from the possession of George M. Bond, with intent then and there to deprive George M. Bond of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally. knowingly, or recklessly cause bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you find from the evidence beyond a reasonable doubt that in so doing these foregoing acts, if you do so find, the defendant caused serious bodily injury to George M, Bond, or defendant used or exhibited a deadly weapon, to-wit, a firearm, then you will find defendant guilty of aggravated robbery as charged in the indictment.”

The underlined portions of the above charge reflect two instances in which the charge authorized jury findings of actions which were not alleged in the indictment. The first underlined provision permitted the jury to convict appellant of robbery on a theory not alleged in the indictment. The second underlined provision permitted the jury to find the robbery, if found to have been committed, to have been aggravated under either theory of Article 29.03(a).

This charge suffers from the same fundamental error as found in Robinson v. State, 553 S.W.2d 371.

Fundamental error being present, the judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The judgment should be affirmed for the reasons set out in Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976), and in Brewer v. State, Tex.Civ.App., 572 S.W.2d 940 (1978) (dissenting opinion).


text:
    Curtis Evans GASTON, Appellant, v. The STATE of Texas, Appellee.
    No. 54977.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.

      Chuck Miller and Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and Bob Smith, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

Appellant was convicted of possession of controlled substances paraphernalia and punishment was assessed by the court at 365 days in the Dallas County jail. Nine grounds of error are raised by appellant on appeal, but it is only necessary for us to consider one ground since it is dispositive of this case. A brief explanation of the facts surrounding appellant’s arrest is necessary for a discussion of this issue.

Officer Richard Bridges of the Dallas Police Department testified that on May 3, 1976, he was investigating a burglary. When he interviewed two people who claimed to have witnessed the offense, one of these witnesses pointed across the street at appellant and another man leaving an apartment and said “There they are,” identifying them as the parties who had committed the burglaries. The officer then crossed the street, called out to appellant, and the two men turned and walked away hurriedly. The officer pulled his gun and arrested the appellant for burglary. A second officer was called to the scene, and a subsequent search of appellant revealed a syringe with a trace of heroin.

Appellant’s counsel objected to the above testimony concerning the burglary because it constituted an inadmissible extraneous offense. The State responds on appeal that the “evidence surrounding a defendant’s arrest is admissible as res gestae.”

The term “res gestae” is an often overused phrase that is sometimes loosely used to cover the admission of pertinent evidence surrounding a particular transaction, whether it is an arrest, the commission of an offense or some other pertinent transaction. It is often used to cover the admission of evidence pertaining to those material events and happenings immediately surrounding an event which are interwoven and pertinent to that event. The surrounding transactions which are termed as res gestae are those events which are material to the understanding of the arrest itself and explanatory of what occurred at that time.

However, it does not appear that this Court has ever authorized the admission of hearsay statements that the appellant has committed some other offense as a showing of probable cause for an arrest unless an issue as to this probable cause is made a fact issue before the jury. In a proceeding outside the presence of the jury the appellant’s attorney challenged the validity of the arrest in this case for lack of probable cause, but this question was not raised in the presence of the jury during the trial. Therefore, the validity of the arrest was not a contested issue before the jury and hearsay evidence concerning probable cause to arrest was not admissible upon this issue. See Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972).

Since the only issue in this case involves whether appellant possessed the syringe with the intent to use it for subcutaneous injection into a human being, it was not necessary to the solution of this issue for the officer to testify that another witness implicated the appellant in a burglary. This evidence simply was not a part of the res gestae and was inadmissible. If the defense had challenged the arrest as invalid as a matter of fact before the jury, the door would have been open for the State to introduce this testimony about the burglary to show probable cause for the arrest. Since such an issue was not raised, the evidence was not admissible, and it was error for the trial court to allow its introduction. There can be no question but that the proof that appellant was involved in a burglary was prejudicial to him in this cause.

For this reason the judgment of the trial court is reversed and the cause is remanded.

DALLY, J., dissents.


author: DALLY, Judge.

text:
    Del MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 55306.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.
    Russell C. Busby, Amarillo, for appellant.
    Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of involuntary manslaughter; punishment was assessed by the jury at imprisonment for ten years. Among other things, appellant complains of the trial court’s refusal to submit a charge to the jury on the offense of criminally negligent homicide.

On May 14,1976, the deceased was killed by a shotgun blast. Appellant and her neighbor Ray Purcell were standing in Purcell’s front yard when the deceased, who was driving wildly, passed by in his car. Suddenly he wheeled around and drove into Purcell’s yard, where he cursed appellant and began talking erratically. Purcell went into his house, brought out a shotgun, then walked to the deceased’s car and told him to leave. At this point Purcell decided that the deceased was drunk and was not dangerous, and stated that he would not shoot the deceased. Appellant said that she wanted the shotgun and grabbed the weapon from Purcell. She testified that she wanted to scare the deceased, because Purcell was just standing there. Seconds after appellant grabbed the shotgun, it discharged, killing the deceased. Purcell testified he was looking over the hood of the car and did not see the actual firing; appellant testified that she remembered grabbing the barrel of the shotgun, but did not remember aiming the weapon or pulling the trigger. Purcell told appellant she had killed the deceased, and appellant went to her house and called the police.

Appellant contends that the trial court erred when it refused to charge the jury on the lesser included offense of criminally negligent homicide. Appellant properly objected to the court’s failure to do so, and submitted a requested jury instruction on the issue. The court charged the jury only on the offense of murder and involuntary manslaughter.

A person commits involuntary manslaughter if he recklessly causes the death of an individual. V.T.C.A. Penal Code, Sec. 19.05(a)(1). Sec. 6.03(c) of the Penal Code defines “recklessly”:

“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

A person commits criminally negligent homicide if he causes the death of an individual by criminal negligence, V.T.C.A. Penal Code, Sec. 19.07(a). Sec. 6.03(d) of the Penal Code defines “criminal negligence”:

“A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under the circumstances as viewed from the actor’s standpoint.”

The difference between the two culpable mental states required to establish these offenses lies in whether or not the actor himself perceives the risk of harm which his conduct creates. We explained this in Lewis v. State, 529 S.W.2d 550 (Tex. Cr.App.1975):

“Reckless conduct as defined by V.T. C.A. Penal Code, Section 6.03(c) involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. Criminal negligence as defined by V.T.C.A. Penal Code, Section 6.03(d) involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the result thereof. At the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct; the key to criminal negligence is found in the failure of the actor to perceive the risk.”

Here appellant testified that when she grabbed Purcell’s shotgun by the barrel, she intended to scare the deceased, but did not intend to point it at the deceased or pull the trigger, and afterwards could not believe that it had discharged. She further testified that she had never seen the shotgun before and thought it was unloaded. According to her testimony she was unfamiliar with firearms and had fired a gun only once, twenty years previously. Purcell testified only that appellant grabbed the gun suddenly and that it discharged in an instant. Police Officer Robert Francis testified that when he arrived at the scene appellant was frantic and kept repeating that “she shot him, and she did not know the gun was loaded.”

This evidence is sufficient to raise an issue of reasonable doubt whether the appellant was aware of but consciously disregarded a substantial and unjustified risk that her conduct would result in the death of the deceased. The jury, if it believed this evidence, could have found that the appellant ought to have been, but was not, aware that her conduct would create a substantial and unjustifiable risk resulting in the death of the deceased. See London v. State, 547 S.W.2d 27 (Tex.Cr.App.1977), and Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.1976). We conclude that a fact issue was raised.

The State contends that appellant was shown to be aware of the risk of her conduct in grabbing the shotgun, because on cross-examination she testified that she was aware that guns are dangerous and that one should always treat a gun carefully. This testimony indicates that appellant was generally aware that handling guns can be dangerous, but still leaves at issue whether she was aware of the risk and acted in conscious disregard of the risk in this particular instance.

The credibility of evidence and whether it is controverted or conflicts with other evidence in the case may not be considered in determining whether a defensive charge or an instruction on a lesser included offense should be given. When evidence from any source raises a defensive issue or raises an issue that a lesser included offense may have been committed and a jury charge on the issue is properly requested, the issue must be submitted to the jury. It is then the jury’s duty, under the proper instructions, to determine whether the evidence is credible and supports the defense or the lesser included offense. See Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972); Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974); Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975).

We conclude that the jury could have found from the evidence that appellant was criminally negligent rather than reckless, and thus committed criminally negligent homicide rather than involuntary manslaughter. Therefore the trial court erred in refusing to charge the jury on the issue of criminally negligent homicide.

The judgment is reversed and the cause remanded.