author: QUENTIN KEITH, Commissioner. ODOM, Judge.

text:
    Marvin Edward BROWN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 55060.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    On Rehearing Jan. 24, 1979.

      Cliff Preslar, El Paso, for appellant.

      Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ., and KEITH, Commissioner.
   OPINION

QUENTIN KEITH, Commissioner.

Appellant was charged by indictment with conspiracy to commit capital murder for the promise of remuneration, and the charging portion of the indictment is set out in the margin. He went to trial jointly with the co-conspirators mentioned in such indictment upon his plea of not guilty. The jury found him to be guilty as charged and the court assessed his punishment at confinement for eighteen years.

During the afternoon of August 18, 1975, Edgar Earl Williams was murdered by one or more persons whom he encountered in his home in El Paso. He was shot by two different pistols and death was caused by the bullet which entered the right temporal region and destroyed a large part of the brain.

While in his garage a few doors from the residence of the deceased on the date of the murder, Michael Ramirez heard “popping” sounds which he took to be an automobile backfiring. He said there were four such shots very close together in point of time but he observed nothing unusual.

A little later on that afternoon Lorna Landry was driving down the street in front of deceased’s residence and saw something unusual in the front yard. She turned her vehicle around and went to the scene observing the body of a black male lying in the front yard who had been shot. She had been there only a few minutes when Ruby Williams, widow of the deceased, came up screaming and repeating, “What have they done? What have they done?” In a few minutes the police arrived and she left the scene.

Debra Ducre, a long-time acquaintance of appellant and Christmas, testified that around two or two-thirty in the afternoon of August 18 she and her boy friend Herby were visiting in appellant’s apartment. While there, she saw appellant, Christmas, and Anderson talking in the bedroom of the apartment and saw Christmas’ automobile outside. Shortly thereafter, the three men and the Christmas vehicle were gone from the apartment.

Jo Jo Pickard told of a conversation a few days before the murder wherein appellant said: “On the way home he said some person, a man — look in the newspaper, a man would be dead, or something like that.”

El Paso police officer Tubbs testified that he had known the deceased for many years and had actually kept the two pistols offered in evidence while the deceased served a tour of duty with the army in Korea.

The State offered two scientific experts from the Federal Bureau of Investigation in Washington who testified as to their examination of certain items of physical evidence, including the pistols, shell fragments, etc. The results of the examinations were inconclusive and their testimony lends little support to the verdict.

Appellant did not testify or offer any evidence in his behalf but now challenges the admission of his confession, claiming that it was the result of an illegal arrest and detention. By four other grounds of error, he contends that the evidence was insufficient to sustain the conviction in that it was insufficient (a) to prove the commission of an overt act by a conspirator; (b) corroborate the statement of the alleged co-conspirator; (e) to corroborate appellant’s confession; and (d) to prove all of the allegations in the indictment.

The fifth ground of error, challenging the admission of the confession, will be addressed at the outset. If the confession was improperly admitted, the cause must be reversed as there was, admittedly, insufficient evidence absent the confession to submit the cause to the jury.

Detective Bonilla of the El Paso Police Department began the investigation of the murder on the afternoon of its occurrence. As the investigation proceeded, appellant became a suspect but Bonilla did not feel that he had probable cause for his arrest. On August 27, El Paso police arrested appellant, a soldier stationed at Fort Bliss, for being A.W.O.L. and he was questioned by Bonilla before being turned over to military authorities.

Appellant remained in military custody until shortly before midnight on September 10 the military authorities returned appellant to the custody of the city police where he and the other suspects were questioned separately. From about one until four in the morning, Bonilla and other officers discussed the murder with appellant before he began his confession. He was warned repeatedly by Bonilla of his Miranda rights, and the form upon which the confession was typed contained the warnings required by V.T.C.A., Code of Criminal Procedure, Art. 38.22 (1966), and Miranda. Several mistakes were made and each was initialed by appellant and each page bore his signature. The confession was completed after nine in the morning, but not until after the completion of the confession was appellant taken before a magistrate.

The trial court conducted an extensive Jackson v. Denno type hearing and appellant did not testify then nor did he offer any evidence at such hearing. At the conclusion of the hearing, the trial court filed elaborate findings of fact and conclusions finding that the confession was voluntary and admissible in evidence.

Appellant contends that the court erred in admitting the confession because it was the result of “an illegal arrest and illegal detention.” We disagree. As stated in Myre v. State, 545 S.W.2d 820, 824 (Tex.Cr.App.1977):

“The fact that appellant was not taken before a magistrate until after he gave his statement does not vitiate a confession that is otherwise properly obtained. Unreasonable delay in bringing an accused before a magistrate only renders the confession inadmissible upon a showing of some causal connection between the delay and the making of the confession. There is no such showing here. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Lester v. State, 490 S.W.2d 573 (Tex.Cr.App.1973).”

There is no error shown in the admission of the confession and ground five is overruled.

In the abbreviated version of appellant’s confession, we reproduce only the highlights. Appellant grew up and went to public school in El Paso where he knew the co-conspirators, Anderson and Christmas. His father’s half-sister, Ruby Williams, was married to the deceased and he was well acquainted with the Williams family. About July 21,1975, Ruby called appellant’s home, telling his wife that she needed to talk to appellant but he did not return the call. The next day Ruby called again and appellant talked to her on the telephone. We repeat his version of the conversation.

“When I talked to my aunt, Ruby Williams, on the telephone she told me, ‘Junior, I want you to do something for me. It’s very important.’ I then said, ‘Okay.’ ‘I need somebody to take care of Earl.’ I then said, ‘What do you mean?’ She then said, ‘You know what I mean.’ I then said, ‘Okay, but when,’ realizing at this time that she wanted to get my uncle Earl killed. She then said, ‘Now. As soon as possible.’ I then asked her ‘Where is he?’ She stated, ‘He’s at work now,’ and at this time told me, T mean it,’ and then at the time hung up the phone. About two or three days went by, and I did not hear from my aunt Ruby. And Andre Christmas then came to my apartment; and I at this time told Andre if he wanted to make some money, and this would be by killing Earl Williams, as requested by my aunt. And Andre Christmas, who was living with my uncle’s daughter, and they have one child, knew who I was talking about. Andre Christmas, then, asked how much he would get out of it, parenthesis, meaning money. I then told him that he would get somewhere between two hundred and fifty dollars and five hundred and fifty dollars — correction, two hundred and fifty dollars and five hundred dollars. As I told him he would get half of what I got, as I was going to be in it with him. Andre Christmas then said, ‘Okay, but get some front money.’ I told Andre that I would contact my aunt and ask her for some front money, meaning a down payment, in parenthesis. Andre was at this time sitting in the living room. He and I then went to the bedroom and called my aunt Ruby Williams, and that this was sometime around two-thirty p. m., and I called her at home. I then told my aunt that it could be done, parenthesis, meaning that I had somebody that would kill my uncle, Earl Williams, but that it was going to cost her the whole thousand dollars, in parentheses the figures one thousand, and that I needed two hundred and fifty dollars down, two hundred and fifty dollars then. I then told her it would be done if she really wanted to get it done, and she said, ‘Okay.’ ”

A few days later, Ruby Williams sent some money to appellant by her daughter Betty Jean Thomas and it was kept by appellant who, apparently, did not get in touch with Christmas. About a week later, Anderson “came into town” and appellant says, “I at this time told Vernon [Anderson] what my aunt had hired me to do . A job, and hired someone to kill her husband. . . . And then if he would go on it with me that I would split the money with him. I did not tell Vernon Anderson . that I had already made the same deal with Andre Christmas . . . [or] that my aunt Ruby Williams had already given me part of the money . . . two hundred and fifty dollars, as front money for down payment . . . .”

The confession continued with appellant telling of how Anderson agreed to “kill my uncle for the four thousand dollars.” Appellant told of setting up an alibi and named Debbie Ducre as one of his witnesses. He denied participation in the murder but says that the day after the murder Anderson came to his home and continued: “So, it took him to tell me that he had been the one that killed my uncle, Edgar Earl Williams; and told me to call aunt Ruby so that she would come up with the money. Since that time he has been pestering me to call aunt Ruby as he has not been paid for the job.”

The statute, V.T.C.A., Penal Code, Sec. 15.02 (1974), defining conspiracy, is set out in the margin and appellant does not challenge the sufficiency of the evidence to show the agreement but apparently contends that the only overt act which will meet the statutory requirements is the act of killing deceased by one or more of the co-conspirators. We disagree. As we said in Skidmore v. State, 530 S.W.2d 316, 320 (Tex.Cr.App.1975), “All the elements of a completed offense need not be proven in a conspiracy case.”

We adopt this argument from the State’s brief in answer to this contention of appellant:

“The State proved through the confession of Appellant and other circumstantial evidence that Appellant entered a conspiracy to kill his uncle Edgar Williams. The State also proved that the offense of homicide was committed in that Edgar Williams was shot and killed. The State proved that after agreeing with his aunt to kill his uncle for $1,000.00, the Appellant first recruited Andre Christmas to help him with the killing. He then asked for a down payment, or ‘front money’, and received $250.00. Thereafter he recruited another co-conspirator, Vernon Anderson, to help him with the killing. One week before the murder, the three co-conspirators went to the home of Ruby Williams and Appellant introduced Vernon Anderson to his aunt and told her ‘he could do the job for her.’ After the murder, the Appellant collected another $100.00 payment from Ruby Williams. All these acts, the State contends, are overt acts done in pursuance of the agreement to commit a felony. The conspirators, at this point, had agreed on the object of the conspiracy. The act of accepting payment to kill an individual and then recruiting killers to help with ‘job’ must certainly be considered to be overt acts in pursuance to the agreement.”

Appellant’s contention that Anderson’s statement that he had killed Williams constitutes hearsay is untenable. The object of the conspiracy had not been completed. Although Williams had been murdered, the conspirators had not received all of their compensation.

In Robins v. State, 134 Tex.Cr.R. 617, 117 S.W.2d 82, 84 (1938), this language was used:

“A conspiracy is not finally terminated until everything has been done that was contemplated to be done by the conspirators.”

And, as said in Helms v. State, 493 S.W.2d 227, 230 (Tex.Cr.App.1973), “Each statement or act of a co-conspirator up until the time the object of the conspiracy is completed is admissible.” In Adamson v. State, 113 Tex.Cr.R. 335, 21 S.W.2d 675, 677 (1929), the conspiracy was to commit arson by burning down a house so as to collect the proceeds of the insurance policy thereon. The Court held that “the conspiracy had not terminated, since the insurance had not been collected nor had the accomplice been paid”— hence declarations of co-conspirators were admissible. See also Colunga v. State, 527 S.W.2d 285, 288 (Tex.Cr.App.1975), quoting from and following Helms, supra.

Appellant argues that Vernon Anderson’s statement that he killed Williams is hearsay and lacks any probative force. We agree that, ordinarily, hearsay lacks probative force. Ex parte Martinez, 530 S.W.2d 578, 580 (Tex.Cr.App.1975). But Anderson’s statement was admissible under the co-conspirator exception to the hearsay rule. See generally Mutscher v. State, 514 S.W.2d 905, 925-926 (Tex.Cr.App.1974), and Rodriquez v. State, 552 S.W.2d 451, 454 (Tex.Cr.App.1977).

In his third ground of error, appellant contends that there was insufficient evidence to corroborate his extrajudicial confession. He points to the fact that in his confession he stopped short of admitting his role in the actual murder of Edgar Williams. From this, he argues that “[i]t is the conspiracy confession which is to be corroborated and Appellant finds no evidence to corroborate the conspiracy.” He cites only the statute in support of the contention: Y.T.C.A., Code of Criminal Procedure, Art. 38.17 (1966).

Appellant overlooks the fact that neither he nor Anderson was charged with the murder of Edgar Williams; but, instead, both were charged with conspiracy to commit murder for remuneration. He also fails to perceive in his presentation that his confession was offered as an admission against interest; and, it was his own confession which brought before the jury the statement of Anderson of which he now complains.

The authorities in this state clearly support the rule that when an accused calls a person as a witness and offers the testimony of such witness the testimony so given is not that of an accomplice which must be corroborated under the statute, V.T.C.A., Code of Criminal Procedure, Art. 38.14 (1966). See authorities collated in Cranfil v. State, 525 S.W.2d 518, 520 (Tex.Cr.App.1975). In effect, the defendant introduced the damaging testimony from Anderson and we now hold that the so-called accomplice witness rule does not apply to this type of co-conspirator hearsay exception evidence. Cf. Jenkins v. State, 484 S.W.2d 900, 902 (Tex.Cr.App.1972).

Finally, relying upon Seiffert v. State, 501 S.W.2d 124, 126-127 (Tex.Cr.App.1973), appellant complains that the State failed to prove all of the allegations of the indictment and that, consequently, the trial court erred in overruling his motion for a peremptory instruction. The argument proceeds along this syllogism: “In the case at bar, there is no evidence that either Vernon Eugene Anderson or Andre Christmas killed Edgar Earl Williams, much less that both of them did so.” The indictment gave appellant fair notice of the charge which he was required to meet. Seiffert, supra.

Moreover, the State established the corpus delicti under the rule laid down in Valore v. State, 545 S.W.2d 477, 479 (Tex.Cr.App.1977); and, as we said in Self v. State, 513 S.W.2d 832, 835 (Tex.Cr.App.1974), quoted in Valore, supra:

“Proof of the corpus delicti may not be made by an extrajudicial confession alone, but proof of the corpus delicti need not be made independent of an extrajudicial confession. If there is some evidence corroborating the confession, the confession may be used to aid in the establishment of the corpus delicti.”

The evidence was sufficient to sustain the conviction when taken with the admissions contained in his confession. See and compare Barron v. State, 566 S.W.2d 929 (Tex.Cr.App.1978). None of appellant’s challenges to the conviction present merit. The judgment is affirmed.

Opinion approved by the panel.

DOUGLAS, J., not participating.

Before the Court en banc.

OPINION ON MOTION FOR REHEARING

ODOM, Judge.

Appellant asserts in his motion for rehearing that this Court on original submission incorrectly held that his extrajudicial confession need not be corroborated. We take this as a protest against the finding that the state had established the corpus delicti of the offense charged.

This Court stated in Smith v. State, 363 S.W.2d 277, 279 that:

“It is well settled that a confession, alone, is not sufficient to support a conviction. It must be corroborated. There must be proof that the offense was committed — that is, the corpus delicti must be proved. The confession may be used to aid in proving the corpus delicti but is not alone sufficient.”

For example, the corpus delicti of murder is a death caused by criminal means. A confession supported by such a showing would be sufficient to sustain a conviction for murder and the showing need not be entirely independent on the confession. Self v. State, Tex.Cr.App., 513 S.W.2d 832.

In the instant case, however, the charge was not murder, but conspiracy to murder, and the corpus delicti is different. The conspiracy statute is aimed directly at the increased danger to society presented by criminal combinations. As the practice commentary accompanying V.T. C.A., Penal Code Sec. 15.02 states:

“[C]riminal conspiracy provides a means of striking against the special danger incident to group criminal activity and facilitates prosecution of the group by providing extraordinary evidentiary and procedural advantages.”

Section 15.02 holds that a person commits criminal conspiracy when, with felonious intent, he agrees with one or more persons to commit an offense and then one of the group does an overt act in pursuance of the agreement. Thus, the corpus delicti of conspiracy must contain a showing of agreement to commit a crime. In the instant case, there was no showing at trial beyond the confession itself that there had been an agreement to commit the murder. When there is no corpus delicti, a confession cannot stand. Smith v. State, 172 Tex.Cr.R. 407, 361 S.W.2d 390. Had there been some showing of concerted activity directed toward commission of the offense, or had someone come forward to testify as to the existence of the agreement, the confession would have been sufficient to sustain the conviction. Cf. Denny v. State, Tex.Cr.App., 558 S.W.2d 467; Delgado v. State, Tex.Cr.App., 544 S.W.2d 929; Helms v. State, Tex.Cr.App., 493 S.W.2d 227; White v. State, Tex.Cr.App., 451 S.W.2d 497. Absent any evidence of the corpus delicti of conspiracy, outside the extrajudicial confession itself, the conspiracy conviction founded on that confession cannot stand.

The motion for rehearing is granted; the judgment of affirmance is set aside; the judgment of conviction is set aside and in view of the insufficiency of the evidence to support a finding of guilt, the judgment is reformed to show an acquittal. 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).

      . “. . . did then and there unlawfully with intent that a felony, to-wit: Capital Murder for the Promise of Remuneration, be committed, agree with Vernon Eugene Anderson and Andre Christmas, to intentionally and knowingly cause the death of an individual, Edgar Earl Williams, for the promise of remuneration; and the said Vernon Eugene Anderson and Andre Christmas performed an overt act in pursuance of said agreement, to-wit: intentionally and knowingly caused the death of an individual, Edgar Earl Williams, by shooting him with a pistol . . .

      . During the course of the joint trial, Christmas withdrew his not guilty plea and pleaded guilty to the court, a matter which was not revealed to the jury until it had returned its verdict.
      A State witness having repudiated his earlier written statement, the charge against Anderson was dismissed. From the jury arguments, we learn that the grand jury did not return a true bill against Ruby Williams, the widow of the deceased; but from remarks made at the time sentence was imposed, we learn that after conviction and before sentencing appellant appeared before the grand jury and a true bill for some undisclosed offense was returned against Ruby Williams.
      Even if we were to assume from our meager record that appellant appeared before the grand jury and admitted his guilt by “cooperating” with the State in its case against Ruby Williams, we do not consider this to be such a judicial confession so as to eliminate the evi-dentiary questions presented by this appeal under the rationale of Duggar v. State, 543 S.W.2d 374, 377 (Tex.Cr.App.1976).
      Instead, from our record, his testimony given before the grand jury did not amount to an irrevocable waiver of his privilege against self-incrimination so that the testimony given before the grand jury would be admissible upon another trial. See authorities cited in the opinion on rehearing in Brumfield v. State, 445 S.W.2d 732, 737 (Tex.Cr.App.1969).

      . State’s counsel offered approximately fifty exhibits in evidence including maps, plats, diagrams, photographs, etc., and many pages of our record contained detailed testimony describing such material. None have been sent to this Court. Our views on the subject are to be found in Cranfil v. State, 525 S.W.2d 518, 520, fn. 1 (Tex.Cr.App.1975). We repeat our admonition that such material should be made a part of the appellate record.

      . Detective Bonilla admitted on the preliminary hearing on the admissibility of the confession that the first arrest of appellant for being A.W. O.L. was “a subterfuge or mere vehicle . used to get [appellant] in to talk to him.”

      . “§ 15.02. Criminal Conspiracy
      (a) A person commits criminal conspiracy if, with intent that a felony be committed:
      (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
      (2) he or one or more of them performs an overt act in pursuance of the agreement.”


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Donald VON JANUARY, Appellant, v. The STATE of Texas, Appellee.
    No. 54734.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 18, 1978.
    Rehearing En Banc Denied Feb. 7, 1979.

      Joseph Montemayor and Larry L. Tinney, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary W. Love and Robert E. Whaley, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of murder. Punishment was assessed by the jury at fifty years. The indictment alleges that appellant shot and killed George Parker, III, by shooting him with a firearm.

Appellant contends that Maurice Dunn, the jury foreman, was guilty of misconduct when he failed to answer the question posed by defense counsel on voir dire examination. Defense counsel asked whether any of the prospective jurors knew members of the George Parker family, the relatives of the deceased. Dunn did not respond even though he knew the family well. Appellant argues that the court erred in failing to grant a new trial on these grounds. We agree and reverse the conviction.

The evidence adduced at the hearing on the amended motion for new trial shows that Maurice Dunn, along with the other members of the jury panel, was asked on voir dire if he knew George Parker, Sr., George Parker, Jr., or George Parker, III (the deceased). He did not answer that he knew the Parkers.

Dorothy Morgan, a former girlfriend of Dunn’s, testified that eighteen years prior to the instant trial she and Dunn frequented the Green Parrot Restaurant owned by George Parker, Sr., and that Dunn was routinely greeted by George Parker, Sr. upon entering the restaurant. She further testified that George Parker, Jr. customarily mingled with and spoke to the patrons in the restaurant, including Maurice Dunn. He would sit at the table with them. She testified that at this time restaurants in Dallas were still segregated, that the Green Parrot was one of the only black owned establishments where the negro community could dine and that this fact promoted a congenial atmosphere in the restaurant which caused many customers to feel that they knew and were friends of the Parkers.

Maurice Dunn testified that he knew the George Parker family and that the recognized George Parker, Sr. when he entered the courtroom with the jury panel. He had known the Parkers “ever since they had been in business” which might have been thirty years or longer. He stated that the Green Parrot had been a venerable black eating establishment for many years, that it had been frequented by almost all black persons in Dallas, and that he was therefore familiar with the fact that George Parker, Sr. was its owner. He probably tried to sell Mr. Parker insurance. Dunn also testified that he Worked for a meat company owned by his brother who sold meat on one occasion to Mr. Parker. He further indicated that he had been in the restaurant many times over the past thirty years, including occasions on which his Shrine group had eaten breakfast there. Dunn, like Dorothy Morgan, acknowledged that the Green Parrot was, for many years, the only place he could go to eat prior to the integration of Dallas restaurants. Upon entering the restaurant, he always identified Mr. or Mrs. Parker. Finally, Dunn conceded that he might have been wrong in failing to answer defense counsel’s question and let him know that he knew the Parkers.

At the outset, appellant distinguished the circumstances of the present case from those presented in Babin v. State, 149 Tex. Cr.R. 339, 194 S.W.2d 563 (1946). In Babin, this Court refused to reverse the defendant’s conviction where the foreman of the jury did not fully disclose the degree of his acquaintanceship with the deceased. The foreman stated on voir dire that “he only knew him when he saw him [the deceased].” He failed to mention that he and the deceased were neighbors in a very small town. It was held that the jury foreman’s answer on voir dire was not so palpably misleading or intentionally deceptive as to require reversal.

Appellant observes that the juror in Ba-bin gave at least a partially truthful answer, albeit an incomplete one. In the present case, by contrast, he contends that Maurice Dunn failed to give any answer at all in spite of his awareness of his sworn obligation to come forward. Under such circumstances appellant argues that he was precluded from peremptorily challenging Mr. Dunn, whom he would have struck from the jury had his relationship with the deceased’s family been known.

In Norwood v. State, 123 Tex.Cr.R. 134, 58 S.W.2d 100 (1933), a prospective juror was asked whether he or his family had ever been the victim of an act of the kind with which the defendant was charged that might in any way prejudice or influence him. The prosecution was for rape. The juror gave a negative answer when in fact his sister had been the victim of a sexual offense. In reversing the conviction, this Court observed that the defendant had used due diligence, was misled by the juror’s response and was thereby deprived of his right to peremptorily challenge the juror.

In Bolt v. State, 112 Tex.Cr.R. 267, 16 S.W.2d 235 (1929), a juror had been asked by defense counsel on voir dire if he had at any time and in any capacity been interested in the prosecution of any person for a violation of the state liquor laws. The jur- or answered negatively in spite of the fact that he had in the past aided officers in raiding liquor law violators and had even taken custody of one of the arrested persons. This Court found that the defendant in Bolt was deprived of an impartial jury.

In Adams v. State, 92 Tex.Cr.R. 264, 243 S.W. 474 (1921), a juror was questioned as to whether he knew the accused or was aware of any fact that might militate against the accused. The juror answered negatively and thereby suppressed the fact that he knew the defendant had been convicted of another offense in another jurisdiction. The conviction was reversed.

In the present case, Maurice Dunn testified that although he knew and recognized the Parkers he did not answer defense counsel’s question because he did not have any close personal dealings with the family. He believed that it was only this personal type of relationship that counsel was interested in when he propounded the question. It was not Dunn’s function to second-guess defense counsel. It was for defense counsel, and not the prospective juror, to decide whether Dunn’s relationship to the Parkers made him unacceptable and subject to a peremptory challenge. Dunn’s failure to truthfully answer the question propounded to him prevented defense counsel from making this determination. When a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, who has acted in good faith upon the answers given to him on voir dire not knowing them to be inaccurate, good ground exists for a new trial. Norwood v. State, supra, and cases cited therein.

If Dunn had correctly answered the question that he knew the Parker family, appellant could have pursued the questioning further. In all probability Dunn would not have served as a juror had all the information been known to appellant. He served through no fault or lack of diligence on the part of appellant’s counsel. Not only did he serve but he was chosen by the other jurors as foreman, a position of influence, and the appellant was assessed a punishment by the jury at fifty years. He may have justly deserved such punishment, but it should not be meted out under the circumstances of his case where there is such a strong probability that a biased juror served.

The jury system and its purity should not be taken lightly. Because the motion for new trial should have been granted, the judgment is reversed and the cause is remanded.


author: W. C. DAVIS, Judge.

text:
    Michael S. EVERS, Appellant, v. The STATE of Texas, Appellee.
    No. 55190.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 15, 1978.
    Rehearing En Banc Denied Feb. 7, 1979.

      Michael S. Copeland, Law Offices of F. Ward Steinbach, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary W. Love, and Jayne Wilson, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

In a bench trial, appellant was convicted of unlawfully carrying a handgun. V.T. C.A. Penal Code, Sec. 46.02. Punishment was assessed at sixty days in jail and a fine of Five Hundred Dollars. Appellant asserts seven grounds of error, including claims of illegal search and seizure. We affirm.

On May 13, 1976, Dallas Police Officers Fambrough and Gary saw appellant operating a car on Harry Hines Boulevard in Dallas, Texas. Observing tape on the windshield covering the safety sticker area, the officers stopped appellant to investigate a “possible violation of the safety sticker.” Upon investigation, Officer Fambrough discovered that the tape concealed an expired Louisiana inspection (safety) sticker. Officer Fambrough issued a written citation for “expired inspection sticker” and, upon appellant’s written promise to appear, permitted appellant to drive away. Accelerating quickly, appellant’s vehicle threw mud and gravel on Officer Fambrough and the police car before getting back onto the roadway and “squealing the tires” on the pavement. Officer Fambrough pursued appellant, stopping him a second time. Following the second stop, Officer Fambrough made a custodial arrest of appellant for “improper start from a parked position.” An inventory of appellant’s car at the scene produced a handgun from an unlocked briefcase in the front passenger’s seat. Appellant’s motion to suppress the handgun as evidence was overruled and at trial the handgun was admitted over objection. Appellant testified and admitted possession of the handgun, but claimed the “traveler” and “business” exemptions. Y.T.C.A. Penal Code, Sec. 46.03.

Grounds of error one through four contain appellant’s challenge to the inventory of his car. They will be discussed collectively. However, prior to that discussion, we must consider the State’s contention that appellant’s testimony waived his right to challenge the search under the doctrine of curative admissibility.

Generally, the doctrine of curative admissibility prohibits a defendant from urging the admission of improper evidence as a ground for reversal where he gives testimony on direct examination which establishes the same facts as those to which he objects. Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972). Appellant took the stand and on direct examination admitted possession of the handgun, but claimed the statutory exemptions of “traveler” and “business.” The State argues that under curative admissibility the appellant’s testimony waives any challenge to the legality of the search. We cannot agree.

A long standing exception to the general application of the doctrine of curative admissibility permits testimony from the accused which meets, destroys or explains erroneously admitted evidence. Such testimony does not act as a waiver of the right to challenge the legality of the search that produced that evidence. Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973) (opinion on State’s second motion for rehearing). Under this authority, the appellant did not waive his objection to the legality of the search if he testified to meet, destroy or explain possession of the handgun.

A situation analogous to appellant’s position was presented in Craddock v. State, 553 S.W.2d 765 (Tex.Cr.App.1977) (opinion on appellant’s motion for rehearing). There, the defendant was accused of possession of marihuana. During the trial of the cause, defendant objected to the introduction of the marihuana, claiming it was discovered during an illegal search and seizure. Later, defendant took the stand and on direct examination admitted possession of the marihuana, but claimed the defense of entrapment. The State argued the question of illegal search was waived by the defendant’s testimony admitting possession of the marihuana.

In deciding Craddock, supra, we first noted that in order to take advantage of the entrapment defense, the defendant was forced to take the stand and testify. Therefore, the admission of possession of marihuana was a necessary predicate to the assertion of the entrapment defense. Blanket application of the doctrine of curative admissibility on facts such as Craddock would place a defendant in a dilemma: he could waive the search issue and assert his defense, hoping to win at trial; or sit mute, hoping for a reversal on the search issue. Such a result would be “an impermissible and unconstitutional chill upon Appellant’s right to author and draft his own defense.” Craddock, supra.

The appellant was presented with a Craddock dilemma. As an essential step in asserting his defenses of “travel” and “business”, appellant had to admit possession of the handgun. Therefore, under Craddock, supra, appellant’s testimony did not act as a waiver of his right to attack the legality of the search.

In the absence of waiver, it is necessary to determine the legality of the search of appellant’s car. We now do so.

Appellant contends that both the first and second “arrests” following alleged violations of traffic regulations were illegal, as his conduct was not prohibited by law. Therefore, according to appellant, there was no violation of the law committed in the presence of the officers and, thus, there was no probable cause to arrest. We do not agree.

By his argument, appellant admits there were two separate arrests. Therefore, once Officer Fambrough received appellant’s written promise to appear during the first arrest, that arrest was complete. Art. 6701d, Sec. 148, V.A.C.S. Had appellant committed no further violation, his second arrest would never have occurred. Our consideration of a valid arrest preceding the inventory of appellant’s car is thus limited to an examination of the second and custodial arrest.

Appellant’s custodial arrest was occasioned by the manner in which he operated his vehicle following his first arrest. After signing and receiving a copy of the citation for the first arrest, appellant accelerated quickly and, in so doing, threw gravel and dirt on Officer Fambrough and the police car. Appellant was stopped a second time and arrested for “improper start from parked position.” Officer Fambrough testified that in addition to the improper start appellant was arrested for expired registration plates and the expired safety sticker. The record also reflects that a complaint charging appellant with anti-noise violation by unlawfully “squealing tires” had been filed in municipal court. In light of this evidence, we hold there was sufficient cause to permit the custodial arrest of appellant following the second stop. Art. 6701d, Secs. 150 and 153, V.A.C.S.

Appellant contends that the search of his car was a pretext or subterfuge by the arresting officers to obtain mere evidence of another crime. As such, the search was not an inventory pursuant to the caretaking function of the police. In support of this contention, appellant argues that the inventory procedure of the Dallas Police Department was not followed. Failure to follow procedure is, according to the appellant, fatal to the State’s claim that the search was an inventory.

Appellant argues that the inventory was incomplete because the car was not placed in the regular police vehicle pound and because no written inventory was prepared. In inventory cases, the physical location of the impounded vehicle is not relevant. Robertson v. State, 541 S.E.2d 608 (Tex.Cr.App.1976). Testimony from both officers was to the effect that Dallas Police Department had a policy requiring inventory of automobiles, once the driver was arrested. Further, both officers testified that the policy was followed in making the inventory of appellant’s car. At no point does the record reflect that written inventories were part of this policy, although written forms were available at the police station. Appellant presented evidence and cross-examined both officers, yet the record does not show any deviation from police department policy.

Appellant further argues that the search of his auto was without probable cause and not justified under the plain view doctrine or by reason of officer safety. These contentions are correct; however, the existence of probable cause or the presence of one of the warrantless search justifications are not required in inventory situations. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Inventories are routine, administrative caretaking functions, as distinguished from searches pursuant to criminal investigations. Opperman, supra.

Appellant argues that the search was a criminal investigation for mere evidence of a crime and not an administrative inventory. The record clearly shows that appellant was under custodial arrest, prior to the search of his vehicle. The officer did not need to search for a reason to arrest appellant because appellant was already arrested. Once the appellant was arrested, the administrative caretaking function arose. The custodial arrest separated appellant from his car. The officers could either impound the car or leave it on the shoulder of a heavily traveled street where it would be subject to damage, vandalism or theft. Pursuant to police department policy, the officers, having observed that appellant’s vehicle contained personal property, inventoried the car, then drove it to the vehicle pound. Such a practice has been recognized as a valid caretaking function. Opperman, supra. We also decline to adopt appellant’s suggested waiver of property rights in lieu of inventory procedures.

We hold that the handgun was discovered during a valid inventory following a custodial arrest. Grounds of error one through four are overruled.

In ground of error five, appellant contends that the verdict is contrary to the law and evidence because appellant was a traveler. V.T.C.A. Penal Code, Sec. 46.03. The defense of travel is a question for the trier of fact. Hill v. State, 100 Tex.Cr.R. 212, 272 S.W. 450 (1925); Armstrong v. State, 98 Tex.Cr.R. 335, 265 S.W. 701 (1924). Clearly, the fact finder is not required to believe the appellant’s reason for carrying the pistol. Porter v. State, 388 S.W.2d 422 (Tex.Cr.App.1965). Appellant presented his traveler defense and we cannot hold that the guilty verdict was contrary to the law and evidence. The evidence showed that appellant arrived in Dallas on May 12 and secured a room that same day. Appellant’s arrest occurred a day later on May 13. In Ballard v. State, 74 Tex.Cr.R. 110, 167 S.W. 340 (1914), we held that once a traveler arrives at his destination, secures a room and remains there all night, he ceases to be a traveler. In Kiles v. State, 398 S.W.2d 568 (Tex.Cr.App.1966), the defendant was arrested the same day he returned to Texas following an out-of-state journey and we held that defendant’s journey had ended and he could no longer claim the traveler’s exemption.

Appellant attempts to distinguish Ballard, supra, based on the purpose for which the appellant was traveling. In Ballard, supra, the defendant was on a “man hunt” and carried the pistol after arriving at his destination. The appellant claims he was on legitimate business and further that temporary cessation of a journey for legitimate business does not destroy the status of traveler. Under the travel exemption, the purpose of the travel is not relevant. Also, the evidence showed that appellant had ceased his journey for a period of four days, a time too great to be considered a temporary cessation.

In ground of error six, appellant complains that the verdict is contrary to the law and evidence because he carried the handgun from his home to his place of business for a legitimate purpose and did not carry such weapon habitually. Appellant argues he had the legitimate purpose of protecting himself and the money he was to receive as manager of a band. There is no recognized exception permitting one to carry a handgun on the basis of self-protection; therefore, if appellant is to be successful, it must be on the legitimate business of protecting a large sum of money or carrying the pistol to his place of business along a practical route, such carrying being not habitual. Boyett v. State, 167 Tex.Cr.R. 195, 319 S.W.2d 106 (1958).

At the moment of his arrest, appellant had no large sums of money. Further, the record does not reveal that appellant had any right to control the premises of Dooley’s Club in Dallas, the place where appellant’s band was engaged for four days. Such control of the business premises is essential in order to justify carrying a pistol to the business premises. V.T.C.A. Penal Code, Sec. 46.03(2). The record also shows that appellant intended to carry the handgun all four days in Dallas and such evidence could be interpreted as habitual carrying of a pistol. Cortemeglia v. State, 505 S.W.2d 296 (Tex.Cr.App.1974).

The trier of fact heard both defenses of appellant, and we cannot say that the guilty verdict was contrary to the law and the evidence. See, generally, Raifsnider v. State, 67 S.W. 108 (Tex.Cr.App.1902).

Finally, the appellant argues error by the trial court in overruling his motion for a new trial, basing this argument on alleged errors in the previous grounds of error. This ground of error is not in compliance with Art. 40.09, V.A.C.C.P., therefore nothing is presented for review.

The judgment is affirmed.

      . In addition to the claimed violation of the fourth amendment to the Federal Constitution, appellant also urges a violation of Article 1, Sec. 9 of the Texas Constitution. These two provisions serve the same purpose: to safeguard the privacy and security of individuals against arbitrary invasion by governmental officials. Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976).

      . Our holding that appellant did not waive his right to challenge the legality of the search is in accord with Thomas v. State, 572 S.W.2d 507, (1978) (Opinion on State’s Motion for Rehearing), handed down subsequent to the submission of the present case. In Thomas, supra, the defendant admitted possession of narcotics found during a search of his vehicle, but testified he was returning them to a friend. Applying the rationale of a fifth amendment case, Harrison v. U. S„ 392 U.S. 219, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968) to the doctrine of curative admissibility, we held that defendant’s testimony did not waive his right to challenge the search of his vehicle. Under Harrison, supra, the question is not “whether the petitioner made a knowing decision to testify, but why." Seeking a motive for defendant’s testimony in Thomas, supra, we concluded that defendant would not have testified if the illegally obtained evidence (bottle of pills) had not been admitted, because that was the only evidence the State introduced. See also Judge Morrison’s concurring opinion in Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973) suggesting that Harrison, supra, might alter the doctrine of curative admissibility.

      . Regarding the first arrest for “safety sticker violation,” appellant argues he was an out-of-state visitor with out-of-state registration plates and out-of-state safety sticker, thus exempting him from safety sticker requirements under Art. 6701d, Sec. 140(a)(e), (f), V.A.C.S. The officers could properly detain appellant to investigate a possible violation when they observed tape on appellant’s windshield. Milton v. State, 549 S.W.2d 190 (Tex.Cr.App. 1977). Greer v. State, 544 S.W.2d 125 (Tex.Cr.App. 1976). Further, the record does not reflect that appellant was a visitor within the meaning of the statute.

      . While we find no statute phrased as “improper start from parked position,” there can be no question but that appellant’s conduct violated the law. See Art. 6701d, Sec. 51 (reckless driving) and Sec. 185(a) (exhibition of acceleration), V.A.C.S.

      . The State satisfied its burden concerning inventory through the testimony of the officers that (1) an inventory policy existed and (2) that policy was followed. If appellant wished to appeal the policy or alleged deviation from that policy, then appellant must develop the record.


author: DALLY, Judge.

text:
    Jesse VILLARREAL, Appellant, v. The STATE of Texas, Appellee.
    No. 59515.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 13, 1978.
    Rehearing En Banc Denied Feb. 7, 1979.

      Donald B. Dailey, Jr., Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, for the State.
   OPINION

DALLY, Judge.

Appellant was convicted of capital murder following a change of venue from Nuec-es County. The punishment was assessed at death.

Appellant contends that the trial court erred: (1) in refusing to instruct the jury that two witnesses were accomplice witnesses as a matter of law, (2) in finding a deaf witness was competent to testify, (3) in refusing to instruct the jury concerning evidence of threats to witnesses, (4) in failing to grant a mistrial after an officer testified that a confidential informer’s life had been threatened, (5) in admitting evidence unlawfully obtained after incorrectly holding it was obtained by consent, (6) in admitting hearsay evidence, (7) in allowing an expert witness to testify outside of the range of his expertise, (8) in excusing a prospective juror in violation of the constitutional principles and the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), (9) in excusing a prospective juror on the grounds she was not physically capable of serving, (10) in failing to grant a mistrial because of the prosecutor’s improper jury argument, (11) in failing to require the State to disclose exculpatory evidence to the defense.

Appellant was accused of murdering Norma Guevara, a clerk in a Corpus Christi convenience store, while in the course of committing robbery. The bodies of the deceased and a fellow employee were discovered by customers who entered the Maverick Market store at approximately 9:45 p. m. on March 24, 1975. Both victims were lying face down on the floor of a storeroom; both had been shot in the back. The store’s safe was found open, and a bag containing money received from the sale of money orders had been taken.

Elva Garcia testified that on March 21, 1975, she rented two apartments in the Twin Palms Motel in Corpus Christi. She and her boyfriend stayed in apartment twelve, while her daughter, Lucy Gonzales, and appellant stayed in apartment ten. Also living in apartment ten were Garcia’s son, Frederico Gonzales, and his girlfriend.

At 5:00 p. m. on March 24, Lucy and appellant left the motel in Garcia’s car. They returned at approximately 10:00 p. m. Appellant entered apartment twelve and placed an object wrapped in a red handkerchief under the bedspread. He then left the apartment after telling Lucy to stay there. A few minutes later, Lucy left the apartment. As Garcia stood in the door, she heard Lucy ask appellant, “Where gun?” Appellant pointed toward the beach and said in Spanish that he had disposed of the evidence.

Garcia, Lucy, and appellant re-entered apartment twelve, and appellant removed the bundle from under the bedspread. The bundle was a bank bag, from which appellant removed and began counting money. A few minutes later, Frederico Gonzales entered the apartment. Appellant gave him twenty dollars to buy beer. Later, Frederico, Lucy, and appellant left the apartment to go to the N.G.N. Lounge.

Lucy Gonzales testified that she and appellant went to the N.G.N. Lounge after they left the motel on the afternoon of March 24. After leaving the lounge, appellant stopped the car, opened the hood, and removed a package. This package contained a gun, which appellant loaded and put in his belt. Appellant then drove to the Maverick Market. Appellant told Lucy to wait and then entered the store. He returned carrying a bank bag wrapped in a red handkerchief. Appellant placed the bag under the seat and drove away rapidly. Lucy’s testimony with regard to the events which occurred after she and appellant returned to the Twin Palms Motel was similar to that of Elva Garcia.

Frederico Gonzales testified that he was in apartment ten when Lucy and appellant returned to the motel on the night of March 24. A few minutes after their return, he looked through a window into apartment twelve and saw appellant sitting on the bed counting money. After Frederico entered apartment twelve, appellant gave him twenty dollars and told him to buy a case of beer. Frederico, Lucy, and appellant later went to the N.G.N. Lounge where appellant bought several rounds of beer for the house.

On March 25, Lucy, Frederico, Frederico’s girlfriend, and appellant went shopping. Appellant bought several items of clothing for Lucy, Lucy’s baby, and himself, paying cash. Later that day, Frederico and appellant went to the N.G.N. Lounge. Appellant was arrested when he and Frederico returned to the motel.

Natividad Nigreta, the owner of the N.G.N. Lounge, testified that when Lucy Gonzales and appellant were in the lounge on the afternoon of March 24 she heard appellant tell a man that if he would do a job, he could make $500. The man responded by saying he wanted to leave. During this first visit to the lounge, appellant bought beer on credit, but when he returned with Lucy and Frederico Gonzales that night he bought several rounds of beer for the house. Appellant also spent a large sum of money when he and Frederico were at the lounge on March 25.

Corpus Christi police searched the area in and around the Twin Palms Motel following appellant’s arrest. They found a .38 caliber pistol under apartment seven, and a box of .38 caliber bullets under apartment ten. Lucy Gonzales identified the pistol as the one she saw appellant carrying on the night of March 24. An F.B.I. firearms expert testified that this pistol fired one of the bullets removed from the body of Norma Guevara. The other bullets recovered from the bodies of the victims were too damaged to make a comparison. The bank bag removed from the safe at the Maverick Market was found under a piece of concrete pipe in a vacant lot approximately sixty yards from the motel.

The question of whether Elva Garcia, Lucy Gonzales, and Frederico Gonzales were accomplice witnesses was submitted to the jury as a question of fact. Appellant contends that the trial court erred by refusing to instruct the jury that Elva Garcia and Lucy Gonzales were accomplice witnesses as a matter of law. He argues that Elva Garcia was an accomplice witness because she accepted money from appellant knowing that it had been taken in the robbery. He argues that Lucy Gonzales was an accomplice witness because she was present in the car during the fatal course of events on March 24, and permitted appellant to buy her and her baby clothes with money taken in the robbery.

The record reflects that before Elva Garcia accepted the money appellant told her that he had committed a robbery at a small store and that no one had been hurt. The record does not reflect when Lucy Gonzales learned of the murders. She is a deaf mute, and could not have heard the shots while she waited in the car outside the Maverick Market.

An accomplice witness is someone who has participated with another before, during, or after the commission of a crime. Jackson v. State, 552 S.W.2d 798 (Tex.Cr. App.1977); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). One is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged. Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961); Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108 (1954); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914). A witness is not deemed an accomplice witness because he knew of the crime but failed to disclose it or even concealed it. Easter v. State, supra; Gausman v. State, 478 S.W.2d 458 (Tex.Cr.App.1972).

Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1975), was a conviction for murder under the former penal code. During the course of the criminal transaction, several items of property were taken from the deceased’s home. This Court held that a witness who received an item of the stolen property, knowing it to be stolen, was not an accomplice witness to the offense of murder:

“We are not presented here with the question of whether Dempsey would be an accomplice witness in the trial of the appellant for acquiring the diamond ring by committing the offense of robbery or theft. The question is whether Dempsey was an accomplice witness in the appellant’s trial for murder. Since there is no evidence to show that Dempsey was an accomplice, principal, or accessory to the murder of Currie, he is not an accomplice witness in the trial of the appellant for the murder of Currie. See Ham v. State, 4 Tex.App. 645 (1878); Warren v. State, 60 Tex.Cr.R. 468, 132 S.W. 136 (1910); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914); Chandler v. State, 89 Tex.Cr.R. 599, 232 S.W. 337 (1921); Carnathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972); 23 C.J.S. Criminal Law § 786(2). Cf. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961).”

Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977), was also a prosecution for murder under the former code. In that case, a witness, Bell, had taken part in two thefts shortly before the murder, and had waited outside after the accused entered the house in which the murder took place. This Court held that:

“The mere fact that a witness has complicity with an accused in the commission of other offenses does not make his testimony that of an accomplice witness for the offense for which the accused is on trial if there is no showing of his complicity in that offense, [citing Easter v. State, supra]. The record in the instant case does not reflect any affirmative act on Bell’s part to assist in Knox’s murder. See Chappell v. State, Tex.Cr.App., 519 S.W.2d 453. Appellant made no showing that Bell participated in planning or promoting the offense. See and compare Cross v. State, Tex.Cr.App., 550 S.W.2d 61 (decided April 20, 1977). Even if Bell had been told of the killing later that evening when he was given a ride by appellant and Bates, a witness is not deemed an accomplice witness merely because he knew of the crime but failed to disclose it or even concealed it. Easter, supra. The fact that Bell was present outside the farm house at the time of the shooting is also not controlling; the fact that the witness was present when the crime was committed does not compel the conclusion that he was an accomplice witness. See Quintanilla v. State, Tex.Cr.App., 501 S.W.2d 329; Easter, supra; [Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975)].”

The trial court did not err in refusing to charge that Elva Garcia and Lucy Gonzales were accomplice witnesses as a matter of law, nor was it necessary that the trial court submit that issue to the jury. Caraway v. State, supra; Ballard v. State, supra; and authorities cited therein. See also Ferguson v. State, 573 S.W.2d 516 (No. 58,706, delivered 9/20/78); Jackson v. State, supra; Singletary v. State, supra; Hunt v. State, 492 S.W.2d 540 (Tex.Cr.App.1973); Silba v. State, supra. Having received a charge on accomplice witnesses more favorable than that to which he was legally entitled, appellant’s grounds of error with regard thereto are without merit.

Appellant contends that Lucy Gonzales was incompetent to testify under Art. 38.06, Sec. 2, V.A.C.C.P., and that the trial court erred in overruling his motion to disqualify her as a witness. The record discloses that Lucy Gonzales is a deaf mute, and attended the Texas School for the Deaf from 1963 through 1969. James Howze, the assistant superintendent of the school, testified that her intelligence quotient was on the borderline of dull to normal, and that her reading ability was that of a first or second grade student. Howze also testified that students at the school were taught that it was wrong to lie, and that they would be punished for lying. He stated that on the basis of his review of Lucy Gonzales’ record he believed that she would understand the nature of an oath and would know the difference between truth and falsity.

Lucy Gonzales testified, both at the pretrial hearing on her competency as a witness and at the trial itself, through an interpreter. At the pretrial hearing, she did not respond when asked by defense counsel if she knew the meaning of the word “oath.” She did testify, however, that she had been taught to tell the truth and would do so in the courtroom.

The competence of a witness to testify is a question for the trial court, and we will not disturb its ruling on appeal unless an abuse of discretion is shown by a review of the entire record, including the witness’ trial testimony. Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977); Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974); Fields v. State, 500 S.W.2d 500 (Tex.Cr.App.1973). Although Lucy Gonzales was able to testify during the trial only in simple terms, and relied heavily on photographic exhibits, she was fully able to relate her experiences. We hold that the trial court did not abuse its discretion in permitting her to testify.

During his cross-examination of Elva Garcia, defense counsel questioned her with regard to several pretrial conversations during which she allegedly admitted to him that she had lied in her statements to the police and indicated that she did not want to testify at the trial. During the course of this cross-examination, the following exchanges took place:

“Q. Did you tell me, you did not want to commit perjury and you did not want Jesse [the appellant] to go to the electric chair for something you knew someone else had done?
“A. I didn’t say, I didn’t want to commit perjury, sir. I wanted to talk to you, because I wanted to find a lawyer as I wanted to take the Fifth Amendment, and because my daughter had been shot. And I don’t want to jeopardize my daughter’s and my son’s lives, that’s the reason for it.
“Q. We will get to that, later.
“Q. —aren’t you trying to protect Freddie [Frederico Gonzales]?
“A. No, sir; I am trying to protect both of them as something might happen to them. And, right now, I don’t know anything about my son and I am afraid something might have happened to him.
“Q. If you are afraid; who are you afraid of?
“A. When this all happened, I had a lot of threatening calls; and my tire walls and windows and all were smashed in; and lots of people called me and say, something is going to happen to me or my daughter and after — after this happened, that’s when my daughter was shot.
“Q. Who are you afraid of?
“A. I don’t know.
“Q. It was not Jesse?
“A. Friends of his, probably.
“Q. What do you mean ‘probably’; do you know?
“A. I wouldn’t know, for sure; and how someone come for him and my daughter was shot, after what happened.
“Q. Mrs. Garcia, you came to me and told me, where you were. If you were afraid of Jesse, why did you tell me where you were?
“A. Because you would probably not jeopardize my life, because you’re a lawyer.
“Q. Well, let me ask you this: Are you saying that the reason why you would take the Fifth Amendment after that, the reason you wanted to take that Fifth Amendment was because you are scared?
“A. That is right.”

Following this cross-examination the State questioned Elva Garcia on redirect examination with regard to her out-of-court conversations with defense counsel and the threats and attacks against her and her children. Appellant did not object to this questioning. The State also questioned Frederico Gonzales on these matters without any objections being made. Finally, after defense counsel personally testified to these out-of-court conversations, the State cross-examined him with regard to his knowledge of the threats.

Appellant requested that the trial court charge the jury not to consider testimony concerning threats and attacks against witnesses as evidence of appellant’s guilt unless other evidence showed that he had been responsible for them. This request was refused.

A trial court may refuse to exclude from the jury’s consideration evidence elicited on cross-examination by the defendant or that was admitted without objection. Hogan v. State, 147 Tex.Cr.R. 75, 178 S.W.2d 525 (1944); Hart v. State, 130 Tex.Cr.R. 174, 93 S.W.2d 157 (1936); Gray v. State, 77 Tex.Cr.R. 221, 178 S.W. 337 (1915); Moxie v. State, 54 Tex.Cr.R. 529, 114 S.W. 375 (1908). See also 31 Tex.Jur.2d, Instructions, Sec. 117. Furthermore, evidence that a witness has been threatened or is in fear for his personal safety may be admissible to explain prior inconsistent statements by the witness. Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974); Ayres v. State, 105 Tex.Cr.R. 15, 284 S.W. 960 (1926); Thompson v. State, 35 Tex.Cr.R. 511, 34 S.W. 629 (1896). Since it was appellant who first elicited testimony with regard to the threats and attacks against the State’s witnesses, and since appellant sought to impeach these witnesses through their inconsistent out-of-court statements, the trial court did not err in refusing the requested limiting instruction.

Corpus Christi police officer Edward Garza, one of the officers who arrested appellant, testified that he had received information with regard to the case from an informer. During cross-examination, Garza refused to disclose the name of this informer. During re-direct examination, the prosecutor asked Garza:

“Q. Mr. Bradshaw was trying to ask you something about your informant on his cross examination, Sgt. Garza, and would you tell this jury, why you are reluctant to acknowledge and give out the name of an informant, on this particular case?
“A. Yes; I am reluctant to give out the name, because the life has been threatened on this informant, twice, already.
“MR. BRADSHAW: If Your Honor please, I don’t know what this has to do with any issue in this case. And I object, I object to this question. And I request to the Court instruct the jury to disregard the answer.
“THE COURT: I sustain the objection. The jury is instructed to disregard the witness’s answer.
“MR. BRADSHAW: Your Hon- or, I move for a mistrial.
“THE COURT: I deny your motion for mistrial. But I reiterate to the jury, again, not to consider the witness’s last answer.”

Appellant contends that the trial court erred in overruling his motion for a mistrial. Although the prosecutor’s question referred to “this particular case,” Garza’s answer did not expressly indicate that the threats on the informer’s life had come from appellant or had in any way been connected to this case. In light of the trial court’s prompt instruction that the jury disregard the witness’ answer, and the fact that appellant subsequently elicited extensive testimony with regard to threats against the State’s witnesses during his cross-examination of Elva Garcia, reversible error is not presented. See Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974); Bermudez v. State, 504 S.W.2d 868 (Tex.Cr.App.1974).

Officer Garza testified that following appellant’s arrest on March 25 he had a conversation with Lucy Gonzales and Elva Garcia at the Twin Palms Motel. During the course of this conversation, he requested their consent to search the two apartments. He also read aloud a consent to search form which explained the constitutional right to be free from warrantless searches, and Garcia explained the form to Lucy in sign language. Garcia testified that she told Lucy that she did not have to sign the form but that it was all right to do so. Garcia also told Lucy that she, Garcia, was going to sign such a consent form. Lucy then signed the consent, and the officers present conducted a brief search of apartment ten. The parties then went to the police station, where Lucy and Garcia were questioned.

On the following morning, Lucy and her mother met Garza and Wayne Broughton, another officer, at the police station. After Lucy was further questioned through an interpreter, the parties returned to the Twin Palms Motel and entered apartment ten. The officers asked Lucy to show them the clothes that appellant had worn on the night of March 24. Lucy then handed the officers a maroon jacket and a red handkerchief. Appellant contends that these items were unlawfully seized because Lucy’s consent to search was not knowingly and voluntarily given and that the trial court erred by admitting the items into evidence.

That Lucy Gonzales had the authority to consent to the search of apartment ten is undisputed. Although Lucy’s testimony on the motion to suppress was confusing, the question of whether her actions were voluntary may be determined from the totality of the circumstances. Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976); Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975); Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973). The evidence establishes that Lucy and her mother were cooperating with the police. On the morning in question, they voluntarily went to the police station for questioning. The police did not themselves search for the coat and handkerchief; these items were given to the police by Lucy after the parties returned to the motel. Regardless of whether or not Lucy understood the content and meaning of the consent form, the totality of the circumstances supports the conclusion of the trial court that Lucy Gonzales voluntarily gave the coat and handkerchief to the police. Stephenson v. State, supra; Sorensen v. State, 478 S.W.2d 532 (Tex.Cr.App.1972). Cf. Kolb v. State, supra.

Officer Joe Solice testified that he was in charge of the records section of the Corpus Christi Police Department. He stated that a computer card is prepared each time a citizen calls the police, and identified two such cards. These cards had been prepared when two customers at the Maverick Market called the police following the murder. Among other things, the cards show the name of the caller, the time the call was received, and which officer was dispatched to answer the call. On one of the cards, the words “murder & amd robbery” are written. Solice testified that he did not know who had made this notation on the card, but that it was his opinion that the dispatcher had done it.

Appellant contends that the words “murder & amd robbery” are hearsay, and that the trial court erred in permitting the card to be introduced without first eradicating this notation. The State argues that the notation was made in the police department’s general course of business and was properly admitted as a business record. V.A.C.S. Art. 3737e. Solice testified that these cards had been prepared in the general course of business of the Corpus Christi Police Department.

Assuming without deciding that the notation is inadmissible, we hold that the introduction of the card with the notation intact was harmless error. There is certainly no dispute that this is a ease of murder committed in the course of an armed robbery. Appellant’s name does not appear on the card, nor does the card in any way connect appellant to the offense. The record is devoid of any showing of harm to appellant due to the introduction of the computer card. See and compare Battee v. State, 543 S.W.2d 91 (Tex.Cr.App.1976); Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973).

Dr. Joseph C. Rupp, the Nueces County Medical Examiner, examined the bodies of the victims- at the Maverick Market and conducted the subsequent autopsies. He testified that Norma Guevara had been shot twice in the back at close range, and that the two bullets had been recovered from underneath the skin of her chest where they had been stopped by the floor. The second victim, Dora Garcia, had been shot three times in the back at close range; two of the bullets had been caught in her clothing, and the third was found beside the body.

Appellant contends that the trial court erroneously permitted Dr. Rupp to testify outside the range of his expertise. This contention is based on the following exchange:

“BY MR. MOBLEY [Prosecuting Attorney]:
“Q. Dr. Rupp, based on your experience and your observations of the scene out there that night and in viewing the two women, would you state if you have an opinion based on your medical and forensic background as to which of the victims was shot first?
“A. Yes; I do.
“MR. BRADSHAW [Defense Counsel]: I do not mean to have to interrupt,' Your Honor, and I don’t have any objection to that question as to whether you have an opinion; I do have an objection as to what it is.
“THE COURT: All right; and the answer was: Yes, he does have an opinion.
“MR. MOBLEY: What is your opinion as to which of the victims was shot first, based on your findings and your autopsies?
“MR. BRADSHAW: I object to that as calling for a conclusion which is not within the area of the Doctor’s expertise and requires, essentially, he know who the assailant walked over to and shot first and requires a degree of speculation that is unwarranted and is unnecessary and is, again, outside the expertise of the Doctor.
“THE COURT: Counselor, I would have sustained your objection a moment ago, except, I think we have it clear now with the witness as to how he is to answer the question and based upon the manner in which I think he is going to answer the question, I will overrule the objection.
“Go ahead, please.
“THE WITNESS: Of the two women, Norma Guevera and Dora Garcia, the younger, definitely, was shot first.
“Q. (By Mr. Mobley): Based on your observations and medical opinion and your observations at the scene and your autopsy of Norma Guev-era, Dr. Rupp, do you have an opinion as to why you feel she was shot, first?
“MR. BRADSHAW: Your Hon- or, I am going to object to that because it calls for the Doctor to speculate on the movement of an assailant and calls for a conclusion which is non-medical in the sense that it has nothing to do with the autopsy findings concerning the physical body of the deceased person.
“THE COURT: Objection overruled.
“Q. (By Mr. Mobley): You may answer, Doctor.
“A. There are numerous reasons, however, that are pertinent. One is that the subject that was shot, second, if it was not the older woman, the younger woman was not in the proper position, when she was shot as the evidence shows that the bullet that was found beside her body, and I might add, also, because of the peculiar position of her legs, the older woman’s legs, that it was the older woman who was shot second.
“Q. Would the fact that Dora Garcia was not in a proper position, be the reason for the bullet passing completely, through her body?
“A. Yes, sir; that is correct. She was not completely in a prone position, that is against the floor.
“Q. Then when the other two shots were fired in your opinion based on your original observations and past experiences as to what the position was of her body, when the final two shots were fired?
“A. That is against the floor.”

Appellant concedes that an expert witness may express an opinion as to the relative positions of the parties at the time of a homicide. Mays v. State, 563 S.W.2d 260 (Tex.Cr.App.1978). He argues, however, that an expert witness may not express an opinion as to which of several bullets was fired first. He relies on Bailey v. State, 365 S.W.2d 170 (Tex.Cr.App.1963), which we overruled in Mays to the extent it was in conflict with that opinion, but which appellant asserts is still good law as to the contention he puts forward.

In Mays, the medical testimony regarding the position of the victim when the shots were fired was crucial since the testimony conflicted with the defendant’s version of the shooting. In Bailey, the testimony of the medical examiner that the victim had been shot first in the back conflicted with the defendant’s claim that she had acted in self-defense. But in the instant case, the question of which victim was shot first' is irrelevant to any issue in the case. Appellant did not testify, nor did he in any way raise an issue as to provocation, accident, or self-defense. Both victims were shot within the space of a few seconds. The undisputed medical testimony as to the location of the bullets in the bodies of the victims leads to the inescapable conclusion that the victims were lying face down on the floor when they were shot. The error, if any, in permitting Dr. Rupp to testify that Norma Guevara was shot before Dora Garcia was harmless beyond a reasonable doubt.

Appellant contends that venire member Jane H. Parker was improperly excluded from the jury for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He argues that she did not unambiguously indicate that she would vote against the death penalty in any ease.

During voir dire examination by the prosecutor, Parker was asked:

“How strongly do you feel about the death penalty, Ms. Parker?
“A. I feel very strongly. I could never send anyone to death.
“Q. In other words, you are strongly opposed to the death penalty?
“A. I am strongly opposed to it; yes, I am.”

The prosecutor then explained the procedure followed under Art. 37.071, V.A.C.C.P., and asked Parker if she could be fair to the State in answering the issues:

“A. I am afraid I would not be very fair.
“Q. You would not be very fair?
“A. No; I would find it very difficult. “Q. I understand your position, ma’am. And do I correctly understand you, when I say, that you feel, no matter how bizarre or macabre a case may be or how vicious or how deliberate it may be, it still would be extremely difficult for you to answer the questions: ‘yes’, knowing those answers could result in the death penalty?
“A. It would be very difficult for me to pass judgment on someone else’s life and therefore it goes against God.
“Q. You don’t think you could do that?
“A. No; I don’t. You asked me to be honest. And I am telling you how I feel. I could never live with myself, again.”

In subsequent questioning, Parker seemed to equivocate, leading the trial court to ask:

“THE COURT: Ms. Parker, I have heard different answers here. And some, frankly, áre inconsistent.
“You, just now, you said, you could not vote to take another person’s life, as a juror.
“Is that correct?
“THE VENIREMAN: That is correct.
“THE COURT: Yet, a moment ago, Mr. Mobley gave you an example of the baby being chopped up and killed by a man with a machette and you said in a case like that, that might be a proper case to take someone’s life.
“And I am having trouble in understanding you, ma’am.
“THE VENIREMAN: The answer: Really, I could not do it.
“THE COURT: Even in the baby example?
“THE VENIREMAN: I am afraid, I just don’t think I could do such a thing.
“THE COURT: In other words, you could not imagine a case where you could vote the death penalty?
“THE VENIREMAN: You see, all you people, you people are pushing me so— and, yes; you could imagine such a ease, but it would have to be some case.
“THE COURT: Ms. Parker, we have to push that, I guess, as it is necessary to know, exactly, how you feel on this point.
“Therefore, let me ask you one more time: Could you conceive of a case where you, yourself, could vote to assess the death penalty?
“THE VENIREMAN: Well, this is so ridiculous, because, of course, anybody could. But I don’t really think, when I got down to it, I could do it.
“THE COURT: Let’s see if this helps: Are you saying, you could conceive of a case where you think the death penalty ought to be imposed; but if it became your duty to do it, you could not do so?
“THE VENIREMAN: That is pretty good — that’s not fair of you.
“THE COURT: Could you conceive of a case, if you read about it in the papers and read where a jury assessed the death penalty, you would say, they did the right thing?
“THE VENIREMAN: I would agree with that; yes, sir.
“THE COURT: But if you were sitting on the jury, yourself, you could not vote to assess the death penalty?
“THE VENIREMAN: That is right.”

During his examination of Parker, defense counsel posed a hypothetical case in which a defendant went to an orphanage, poured gasoline over the children, and burned forty children to death. Asked if she could vote for the death penalty in such a case, Parker answered, “No; no, I still would have to say I don’t think I could do it.”

This Court has previously noted the problem posed by the “equivocating venireman,” and we have held that Witherspoon does not require certain formal answers. White v. State, 543 S.W.2d 104 (Tex.Cr.App. 1976). Parker’s answers reflect her strong feelings against the death penalty, and at the very least cast serious doubt on her ability to serve as a fair and impartial juror. Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972). We hold that the trial court did not err in excluding Parker from the jury. See and compare White v. State, supra; Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Tezeno v. State, supra.

Appellant also contends that venire member Mildred Lewis was erroneously excluded from the jury for cause. Lewis was excluded on the basis of bodily disease rendering her unfit for jury service. Art. 35.-16(a)(4), V.A.C.C.P.

Lewis interrupted her voir dire examination and stated:

“THE VENIREMAN: I — I don’t feel good.
“THE COURT: Pardon, ma’am?
“THE VENIREMAN: I don’t — I don’t feel good. And I is physical, it’s physical.
I am sorry, and I told them, yeah, I told them I don’t feel good, over there.
“And I told them I am on medication. And I wouldn’t be able to take it. And I am feeling worse, now.
“THE COURT: Could you tell us what your physical condition is, ma’am?
“THE VENIREMAN: Yes, I have high blood pressure. I have nervousness. And I have hay fever and sinus and all messed up together.”

Lewis went on to state that she was taking medication regularly for her high blood pressure and her nerves, and that she believed her physical condition would interfere with her duties as a juror. She expressed doubt as to her ability to sit through a long trial.

The trial court has the responsibility for determining the qualifications of a prospective juror when a challenge is made. Art. 35.21, V.A.C.C.P.; McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972). We hold that the trial court did not abuse its discretion in granting the State’s challenge to venire member Lewis. See Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976).

Appellant complains of three instances of allegedly improper jury argument by the prosecutor during the punishment stage of the trial. The first statement complained of is the following:

“How many people have you ever, personally known in your entire lifetime, even one individual, that has been convicted of felonies four times, before they are 34 years of age and a one-man crime wave in Nueces County, Texas?”

Appellant’s trial objection, which he brings forward on appeal, was that this statement is outside the record. The trial court overruled the objection.

Appellant’s four felony convictions were introduced into evidence at the punishment stage. The reference to a “one-man crime wave” was a reasonable deduction from this evidence and, in the context of the punishment phase of the trial, a proper plea for law enforcement. See Pogue v. State, 474 S.W.2d 492 (Tex.Cr.App.1971).

While discussing the second punishment issue, the prosecutor argued:

“Now, you know, by past experience, that the best way to tell what a person is going to do in the future, whether he is an employee; or a child; or whether a friend is by judging what he has done in the past—
“THE COURT: Fifteen minutes, Mr. Mobley.
“MR. MOBLEY: —in deciding what he is going to do in the future.
“THE COURT: Fifteen minutes, Mr. Mobley.
“MR. MOBLEY: Thank you, Your Honor.
“In this hearing, character witnesses could have, also been presented by the State, who would testify simply to that.
“MR. BRADSHAW: Objection, Your Honor.
“THE COURT: I sustain the objection.
“You may not speculate on what character witnesses would testify to.
“MR. MOBLEY: May I say this, in that respect, the State of Texas could have brought in virtually every police officer in South Texas and—
“MR. BRADSHAW: I object to that statement, Your Honor, by counsel, and move the Court instruct the jury to disregard that statement. And I move for a mistrial.
“THE COURT: I sustain the objection, I grant your objection.
“And I deny your motion for mistrial.”

Appellant contends that this argument injected extraneous facts into the case.

Appellant’s general objection to the prosecutor’s reference to character witnesses the State could have called was sustained, and the jury was instructed to disregard the statement. No other relief was sought. See Rasberry v. State, 535 S.W.2d 871 (Tex.Cr.App.1976); Kennedy v. State, 520 S.W.2d 776 (Tex.Cr.App.1975). Appellant’s objection to the second remark, referring to “every police officer in South Texas,” was also general. The prosecutor’s statement was not completed, the objection was sustained, and the jury was instructed to disregard. The trial court did not err in denying appellant’s motion for mistrial. Rhynes v. State, 479 S.W.2d 70 (Tex.Cr.App.1972); Sanders v. State, 453 S.W.2d 162 (Tex.Cr.App.1969).

Finally, also while discussing the second punishment issue, the prosecutor stated:

“Is he more likely than not, if he ever hits the streets, again, to commit violent crimes against other citizens? If that is the definition of probability, let’s just look at the evidence in this case which without question shows that it is more than likely he will because of what he has done in the past.
“He has done it five times — he has done it five times. And what else he has done, we don’t know about. And what else he has gotten by with, we will never know.
“MR. BRADSHAW: I object to that, that is a direct citation to the jury to consider things which are not in evidence. And I request the Court to instruct the jury to disregard that statement.
“THE COURT: The objection is sustained.
“Members of the jury, you are instructed to disregard that statement.
“MR. BRADSHAW: I move for a mistrial, Your Honor.
“THE COURT: Your motion for mistrial is denied.”

Argument which invites the jury to speculate whether the defendant has committed other crimes not in evidence is improper, and the trial court properly sustained appellant’s objection. In so doing, and by instructing the jury to disregard the statement, the trial court cured the error. Morgan v. State, 502 S.W.2d 695 (Tex.Cr.App.1973); Sanders v. State, supra. See also Livingston v. State, 531 S.W.2d 821 (Tex.Cr.App.1976); Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App.1974).

Appellant filed a pretrial motion in which he requested that the trial court

“. . . order the prosecution to disclose all exculpatory evidence which the prosecution may have in its possession, and further that the prosecution reveal its entire file to the Court for review by the Court in camera for the Court’s determination as to what evidence therein is exculpatory and, finally, that the Court order that a copy of that portion of the prosecution’s file not deemed to be exculpatory be sealed for future review by the appellate court if necessary.”

In his final ground of error, appellant “respectfully requests the Court of Criminal Appeals to review the sealed file and reverse this case if any evidence favorable to the accused was not turned over to him.”

The motion in question was one of several pretrial discovery motions filed by appellant. The other motions, which requested specific information, were considered and ruled upon by the trial court, and appellant makes no complaint in this regard. During the trial, the State tendered witnesses’ statements to appellant for the purpose of cross-examination. Although the prosecutor and the trial court agreed to appellant’s request for an in camera inspection of the prosecutor’s file, they were under no constitutional obligation to do so. There is no constitutional requirement that the prosecutor deliver his entire file to defense counsel for examination, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Bell v. State, 442 S.W.2d 716 (Tex.Cr.App.1969), nor is there any constitutional requirement that the trial court peruse the prosecutor’s file for exculpatory evidence in the absence of a specific request supported by some showing that such evidence exists. Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1976); Campos v. State, 468 S.W.2d 81 (Tex.Cr.App.1971).

In the instant case, appellant requested that the prosecutor produce “all exculpatory evidence which the prosecution may have.” Such a general request is the equivalent of no request at all. United States v. Agurs, supra. On appeal in such a case, constitutional error is presented only if there is a showing that undisclosed evidence exists which creates a reasonable doubt that did not otherwise exist. United States v. Agurs, supra. Appellant has made no such showing. Indeed, appellant’s ground of error is nothing more than a request for this Court to search through the prosecutor’s file, with absolutely no showing that such a search would yield constitutional error. We refuse to engage in such a search.

Moreover, the prosecutor’s file is not contained in the record on appeal. Appellant’s written designation of material to be included in the record does not specify that the file be included, nor is there any other indication that appellant sought to remind the prosecutor or the trial court of the pretrial agreement. Appellant made no objections to the record. Thus, appellant waived any possible error by failing to secure the inclusion of the prosecutor’s file in the record.

During the punishment phase of the trial, the State introduced evidence that appellant had been convicted of felony offenses on four previous occasions: twice for burglary, and once each for possession of marihuana and assault with intent to commit robbery. Appellant was incarcerated in the Department of Corrections for each of these offenses. This evidence, when considered with the evidence adduced at the guilt phase of the trial, is sufficient to support the jury’s determination that appellant’s conduct was deliberate and that appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Felder v. State, 564 S.W.2d 776 (Tex.Cr.App.1978); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977); cf. Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978).

The record discloses that appellant’s trial was fair, that he was represented by experienced, appointed counsel, and that he was afforded all of his constitutional rights. Given the brutality of the crime for which appellant was convicted, and the circumstances of its commission, we cannot say that the severe penalty which was assessed is inappropriate.

The judgment is affirmed.