author: CLINTON, Judge. DOUGLAS, Judge,

text:
    Ex parte Donald Gene MIXON.
    No. 60318.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 28, 1979.
    Rehearing Denied July 18, 1979.
    Michael Tobin, Huntsville, on rehearing, for appellant.
    Robert Huttash, State’s Atty., Austin, on rehearing, for the State.
   OPINION

CLINTON, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P. After a November 17, 1978 hearing on the application the trial court made and filed findings of fact and conclusions of law which, in pertinent part, not only provide the setting for our consideration of the application but also correctly suggest the legal decision and relief that must follow:

“FINDINGS OF FACT
1. Petitioner, Donald Gene Mixon, was convicted in January of 1972 in the 69th Judicial District Court, Deaf Smith County, Texas, in Cause No. 2190 for theft of grain over the value of $50.00, and he appealed. The Court of Criminal Appeals of Texas held that the evidence was insufficient to support the conviction, therefore reversing the judgment and remanding the cause. Mixon v. State, Tex.Cr.App., 507 S.W.2d 238, .
2. In August of 1974, petitioner was tried for a second time in said Cause No. 2190, was convicted, and received a sentence of from two to seven years in the Texas Department of Corrections. Upon petitioner’s appeal of this second conviction, the judgment was affirmed by the Court of Criminal Appeals in its Per Curiam opinion number 50,175, .... (Delivered September 17, 1975 and unpublished)
CO
As alleged by petitioner in his ‘Ground # 6’ his first conviction in said Cause No. 2190 was reversed and remanded upon a holding by the Court of Criminal Appeals of Texas that there was insufficient evidence to support the judgment of conviction. Petitioner was then re-tried in said Cause No. 2190, convicted, assessed a seven year prison sentence by the jury and sentenced to serve from two to seven years in the Texas Department of Corrections; and he was then unsuccessful in his appeal. ^

CONCLUSIONS OF LAW

In accordance with the holdings of the United States Supreme Court in Burks vs United States [437], U.S. [1], 98 S.Ct. 2141, 57 L.Ed.2d 1, and Greene v. Massey [437], U.S. [19], 98 S.Ct. 2151, 57 L.Ed.2d 15, and the Court of Criminal Appeals of Texas in Ayers vs State, Tex.Crim.App., 570 S.W.2d 926, the Double Jeopardy Clause of the United States Constitution precludes a second trial once the reviewing court has found the evidence legally insufficient. It appears that the relief sought by petitioner, to wit: his discharge from confinement in the Texas Department of Corrections under a conviction and sentence in said Cause No. 2190, should be granted.”

The habeas court is absolutely correct and the relator is entitled to relief — if the rule of Burks and Greene, supra, is to be applied retroactively. We hold that it is. Accordingly, relator is granted the relief hereinafter ordered.

It is ordered that the judgment of conviction in Cause No. 2190 in the District Court of Deaf Smith County, Texas, 222nd Judicial District is set aside and is reformed to show an acquittal and relator is discharged from confinement in the Texas Department of Corrections under the sentence in said Cause No. 2190.

OPINION ON STATE’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

I dissent for the reasons stated in the dissenting opinion in Ex parte Reynolds (No. 60,647, June 20,1979).

      . The Double Jeopardy Clause was held “fundamental to the American scheme of justice” and applicable to the states by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). This Court has recognized and followed the principle that retroactive effect is given to decisions which implement “the fundamental notions of fairness embodied within the concept of due process,” as in, e. g., Ex Parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1976). Clearly that principle is broad enough to include the “fundamental nature of the guarantee against double jeopardy,” Benton v. Maryland, supra, 395 U.S. at 795, 89 S.Ct. at 2063.
      Moreover, as explicated in Burks, supra, early failure to distinguish between reversals due to trial error and those resulting from eviden-tiary insufficiency “has contributed substantially to the present state of conceptual confusion existing in this area of the law.” Pointing out that an appellate reversal for insufficiency of evidence means that the case for the prosecution was so lacking that it should not have ever been submitted to the jury and that absolute finality is accorded a verdict of acquittal, so that “it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it [has been] decided as a matter of law that the jury could not properly have returned the verdict of guilty,” the Supreme Court thought it mattered not in this context that a defendant had sought a new trial as one of his remedies for, “It cannot be meaningfully said that a person ‘waives’ his right to a judgment of acquittal by moving for a new trial.” Given this rationale for the Burks conclusion, it “so raises serious questions about the accuracy of guilty verdicts in past trials,” Ivan V. v. New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972) that retroactive effect follows; see also Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 2344 (1977) holding retroactive the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).


source: Caselaw Access Project

author: PHILLIPS, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Ex parte Pablo Urias ALANIZ.
    No. 57859.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.
    Rehearing En Banc Denied July 11, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, W. C. DAVIS and PHILLIPS, JJ.
   OPINION

PHILLIPS, Judge.

This is a post-conviction application for a writ of habeas corpus. Article 11.07, V.A.C. C.P. Petitioner was originally convicted for the unlawful possession of marihuana on a plea of not guilty to a jury. Article 725b, V.A.P.C. (1925). The jury assessed petitioner’s punishment at 25 years’ imprisonment.

On April 21,1976, petitioner filed an original application for writ of habeas corpus in the 143rd Judicial District Court of Ward County. After conducting an evidentiary hearing, the district judge found that the same attorney represented the petitioner and his co-defendant; that an exculpatory letter as to petitioner was written by his co-defendant, delivered to the district attorney and subsequently disclosed to petitioner’s trial attorney at a pretrial conference held one week before trial; and that the trial attorney did not call or subpoena the petitioner’s co-defendant and author of the letter. The district judge concluded that, as a matter of law, the trial attorney had a conflict of interest through his dual representation so as to deny petitioner his right to due process of law.

By per curiam order of July 13,1977, this Court remanded this cause to the district court for another evidentiary hearing to develop the “conflict of interest” issue. A hearing was conducted on November 29, 1977. The petitioner’s co-defendant and author of the exculpatory letter was subpoenaed but failed to appear since he was outside this State and had no funds to make the trip. He is still under indictment for the same offense of marihuana possession. As a result, only petitioner and his original trial attorney testified at the second eviden-tiary hearing.

The district judge found again that the co-defendant was not called or subpoenaed for petitioner’s trial and, in addition, that the omission of trial counsel was a result of his dual representation. He further found that the testimony of petitioner’s co-defendant, if elicited, would have created a reasonable doubt as to petitioner’s guilt; that petitioner’s trial attorney did not discuss the concept of a conflict of interest with petitioner; and that petitioner’s co-defendant’s signature is on the exculpatory letter. The district judge concluded, as a matter of law, that there was a conflict of interest on petitioner’s trial attorney’s part which denied petitioner his right to due process of law. Both district judges recommend the granting of habeas corpus relief.

Petitioner complains of a conflict of interest on the part of his retained attorney. A conflict of interest resulting from one attorney’s dual representation of defendants charged with the same offense does not mandate reversal of a conviction unless the conflict resulted in ineffective assistance of counsel. Stutes v. State, Tex.Cr.App., 530 S.W.2d 309; Hargett v. State, Tex.Cr.App., 534 S.W.2d 909; Porter v. U. S., 298 F.2d 461 (5th Cir. 1962); Foxworth v. Wainwright, infra; Horowitz v. Hender son, 514 F.2d 740 (5th Cir. 1975); U. S. v. Foster, 469 F.2d 1 (1st Cir. 1972). The quality of assistance delivered by retained counsel is measured in terms of that counsel’s adherence to any legal duties imposed upon him vis-a-vis his client. Ex parte Raley, Tex.Cr.App., 528 S.W.2d 257. The applicable legal duties of Texas attorneys who find themselves representing co-defendants are set forth in the State Bar of Texas’ Code of Professional Responsibility.

“DR 5-105. Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
“(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
“(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
“(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.” State Bar Rules, Appendix to V.A. C.S., Title 14, Art. 12, Sec. 8.

See Pete v. State, Tex.Cr.App., 533 S.W.2d 808.

At least at the time of the March 8,1973, pretrial conference, trial counsel in this case was aware of a conflict. It was then that the exculpatory letter was provided for the trial counsel’s review. Trial counsel had no recollection of discussing any possible conflict of interest with the petitioner and the petitioner denied having been apprised of any possible conflict of interest or “possible effect[s] of such [dual] representation.” It is arguable that the conflict of interest from trial counsel’s dual representation resulted in his failure to introduce the exculpatory letter into evidence or to place his other fee-paying client on the stand to testify on behalf of petitioner. Cf. Hargett v. State, supra. It is apparent that petitioner was prejudiced by his trial counsel’s failure to even attempt the introduction of the exculpatory letter. We are foreclosed from analyzing the degree of prejudice resulting from the conflict of interest for the purposes of determining whether reversible error is shown:

“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. U. S., 315 U.S. 60 at 76, 62 S.Ct. 457 at 467, 86 L.Ed. 680 (1942).

In Porter v. U. S., supra, at 463, it was stated:

“[Effective] representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — are hobbled or fettered or restrained by commitments to others.” (Emphasis added)

The Fifth Circuit also embraces the intent of DR 5-105(C) in their holding that “full disclosure is required — not only of the dual representation, but of all the likely consequences flowing from the differing defenses.” Horowitz v. Henderson, supra, at 743.

There can be no strategic or tactical benefit in withholding exculpatory evidence from a jury which is deciding whether the attorney’s client is guilty or innocent.

Beyond the issue of whether petitioner’s counsel violated legal duties he owed petitioner in failing to disclose the likely consequences of his dual representation, the State Bar Rules set forth other obligations which petitioner’s trial counsel arguably neglected in his representation of petitioner. DR 7-101(A)(l) provides in pertinent part:

“A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B).”

DR 7 — 101(A)(3) provides as follows:

“A lawyer shall not intentionally: (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).”

DR 7-101(B) provides:

“(B) In his representation of a client, a lawyer may:
“(1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.
“(2) Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal.”

Since it has been established that the petitioner was not apprised of the likely consequences of the conflict of interest arising from trial counsel’s dual representation, it would not be possible for petitioner to knowingly waive the' introduction of the exculpatory letter under the conditions expressed in the aforementioned cases and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Neither is it arguable that the introduction of the exculpatory letter would be unlawful. Therefore, trial counsel’s conduct in this case cannot be excused under the ambit of DR 7-101(B).

Further, the ABA’s Standards Relating to The Defense Function, Secs. 1.1(b) and 1.6 provide as follows:

“1.1(b) The basic duty the lawyer for the accused owes to the administration of justice is to serve as the accused’s counselor and advocate, with courage, devotion and to the utmost of his learning and ability, and according to law.
******
“1.6 Whether privately engaged, judicially appointed or serving as part of a legal aid system, the duties of a lawyer to his client are to represent his legitimate interests, and considerations of personal and professional advantage should not influence his advice or performance.”

With respect to this addendum, the trial counsel’s testimony at the evidentiary hearing is illuminating. When asked why the letter was not introduced at the trial of petitioner, his trial counsel responded, “How could it have been?” On cross-examination the following exchange occurred:

“Q All right. At any rate, do you recall Mr. Alaniz mentioning or suggesting that you should introduce the letter and you refused to try to introduce the letter, or anything of that nature?
“A Well, the only way you are going to produce the letter, it looks to me like, is to bring the Defendant.”

It should be noted at this point that the admission of the letter into evidence does not necessarily require the physical presence and testimony of the author. The authenticity of the correspondence can be proven by circumstantial or other evidence. See generally: 2 Wharton’s Criminal Evidence (11th Edition), Sec. 807, et seq., pp. 1391 — 1394; 23 Tex.Jur.2d, Evidence, Sec. 309, et seq.; and 29 Am.Jur.2d, Evidence, Sec. 879. Further, any objections to the letter as hearsay could be overcome by virtue of the declarations against penal interest expressed therein.

We must conclude, therefore, that petitioner’s trial attorney labored under a conflict of interest which hindered his discharge of legal obligations owed to the petitioner and, as a consequence, petitioner was denied due process and course of law.

The relief sought is granted. The judgment of conviction is reversed and the cause is remanded.

DOUGLAS, Judge,

dissenting.

The majority grants relief because counsel represented Alaniz and a co-indictee and that there was a conflict of interest. This was based on a letter written by the co-in-dictee to the district attorney. This letter recited that the marihuana belonged to the co-indictee. The majority overlooks the evidence that the co-indictee had previously made a statement that the marihuana was not his and that it belonged to the petitioner.

A second evidentiary hearing was held on November 29,1977, at which time both petitioner and his original trial attorney testified. Margarito Pina, the co-indictee, was subpoenaed but he was not present.

The record reflects that on November 4, 1972, Officer Thompson stopped a car for running a red light in Monahans. Thompson determined that Pina, the driver, was intoxicated and in the course of his investigation he located a brown paper bag on the passenger’s side of the car. The bag contained marihuana. Thompson then arrested both Pina and petitioner, who was sitting on the passenger side of the car. At this time the co-indictee, Pina, stated that Alan-iz had the bag which contained marihuana when Alaniz got into the car.

Pina and petitioner both retained the same attorney to represent them. Pina has never been brought to trial. Prior to petitioner’s trial, Pina wrote a letter to the district attorney stating that the marihuana was his, that petitioner knew nothing of it and that petitioner should be released. The district attorney gave this letter to the defense attorney. Pina did not testify at petitioner’s trial and the letter was not introduced.

In the instant application, petitioner contends that his attorney’s failure to utilize Pina’s letter denied him the effective assistance of counsel. He argues that his attorney could not exploit the letter because of his dual representation which constituted a conflict of interest.

Where a trial attorney has an actual conflict between his client’s interest and some competing interest, a defendant is denied the effective assistance of counsel. Holloway v, Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). However, representation of multiple defendants by one attorney is not, per se, such an actual conflict. Glasser v. United States, supra; see Pete v. State, 533 S.W.2d 808 (Tex.Cr.App.1976).

The test to determine the adequacy of retained counsel is whether there was wilful conduct by counsel, without the defendant’s knowledge, which amounts to a breach of a legal duty. Harrison v. State, 552 S.W.2d 151 (Tex.Cr.App.1977); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976). In Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975), we applied this test to a situation where it was alleged that retained counsel had a conflict of interest. We held that, where counsel is retained, “ ‘there is no ineffectiveness on such grounds unless the attorney’s representation was fettered or restrained by his commitments to others, and such commitments were unknown to the defendant.’ ” Accord, Harrison v. State, supra. Thus, in order for petitioner to prevail, he must show both an actual conflict and his lack of knowledge of the conflict.

At the November 29, 1977, evidentiary hearing, both petitioner and his attorney testified about petitioner’s knowledge of the possible conflict. The attorney testified that petitioner knew he represented Pina. He then testified:

“Q. Well, then you don’t remember exactly when you first discussed that letter with Mr. Alaniz. Is that correct?
“A. Well, it would be at one of those pretrials.
“Q. At any rate, it was prior to the trial date of 1973.
“A. Yes, sir.
“Q. All right. At any rate, do you recall Mr. Alaniz mentioning or suggesting that you should introduce the letter and you refused to try to introduce the letter, or anything of that nature?
“A. Well, the only way you are going to produce the letter, it looks to me like, is to bring the Defendant.
“Q. So you don’t recall refusing any request he made other than the fact that he wanted to take the stand and you didn’t think he should?
“A. Well, I don’t think he insisted, the best I recall.”

Petitioner testified that he knew his attorney represented Pina, that he was aware of the letter, that he asked his attorney to introduce the letter at the trial and his attorney refused. Despite some differences, the testimony of both petitioner and his attorney indicated that petitioner knew of the dual representation and was fully aware of the letter.

Shortly after his arrest Pina told the police that the brown paper bag belonged to petitioner and that petitioner was carrying it when Pina picked him up in his car. The record also reflects that, while petitioner denied forcing Pina to write the letter, he was present at the time it was prepared. Petitioner’s testimony at the evidentiary hearing includes the following:

“MR. HOLCOMBE: You did say you saw Mr. Pina write this letter and you saw him sign the letter.
“PETITIONER: Yes, sir, and I read it, too.
“THE COURT: You read it before it was taken out of Mr. Pina’s hands?
“PETITIONER: Yeah, because he wanted me to know what he was doing in my favor, in my behalf.”

Also, petitioner’s trial attorney was asked at the evidentiary hearing if he now thought there was a conflict of interest in the case. He responded:

“A. Well, I didn’t at the time because I know a lot of . things that you don’t know and to divulge it would be a violation of the confidence of me and Mr. Alaniz.”

The court then stated that, because of the writ-, petitioner had waived the attorney-client privilege and, if petitioner wanted to pursue the question, he would order the witness to answer. Petitioner declined this invitation. In view of the prior inconsistent statement and the circumstances under which the letter was written, it may well have been the best tactical decision not to attempt to introduce the letter (which was not admissible). In addition, the evidence, left only partially developed by petitioner at the hearing, implies that there may have been other valid reasons why the letter was not offered.

The examination of the record of the original trial shows that petitioner was present in the car with a bag of marihuana next to his feet. Counsel timely filed a motion to suppress the marihuana and secured a hearing on his motion. After this issue was decided adversely, petitioner went to trial on the theory that he did not know what was in the bag. Counsel carefully questioned the jury on the voir dire examination and actively cross-examined the State’s witnesses and called one defense witness in order to develop his theory. The record reflects that petitioner was not denied the effective assistance of counsel..

The relief requested should be denied.

      . The district judge conducting the original evi-dentiary hearing on this application was the same judge who presided at petitioner’s original trial.

      . The district judge presiding at the second evidentiary hearing was administratively assigned to preside since the original prosecuting attorney was now the district judge.

      . An actual and significant conflict of interest exists when “one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing.” Foxworth v. Wainwright, 516 F.2d 1072 at 1076 (5th Cir. 1975); U. S. v. Huntley, 535 F.2d 1400 (5th Cir. 1976).
      Further, ABA Standards Relating to The Defense Function, Sec. 3.5(b) provides:
      “(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation. In some instances, as defined in the Code of Professional Responsibility, accepting or continuing employment by more than one defendant in the same criminal case will constitute unprofessional conduct.” (Approved Draft, 1971)

      . The handwritten, exculpatory letter which appears in the record is set forth here verbatim.
      “Dear Sir,
      “This is a true statement concerning the Marihuana charges against myself and Mr. Pablo Urias Alaniz. Mr. Alaniz did not have any knowledge about the Marihuana and should be released Immediately. The following lines are to explain why.
      “On Nov. 4, 1972, I was invited to a Pot ‘Marihuana’ party, by certain partys which names I will not mention, because it may endanger my life. While at the party, this guy I know was rolling paper lids and was measuring them with a tin lid, to make them the exact size, to be sold. This guy also had LSD tablets and gave each one of us one. I took mine and so did he. He finally got through, and I believe he went into a bad trip, because he told me to take him home. On the way to his house I started feeling the effects of the LSD. As it was my first time I can’t remember much of what happened, because I was on a bad trip myself. All I remember is driving, driving and driving and finally I was here in Monahons. And Mr. Alaniz was waving and hollering and was walking across the street from the Road Runner and was carring a paper bag in his hand and now that I am sober and can remember things better, he had a beer in the paper bag. I remember quiet well, because I asked him for one, and he didn’t have anymore. So he asked me to take him to the Miaget Bar, to look for a friend, because his car had broke down and he needed some tools to fix it. And thats’ when I ran the red light in town and was stopped by a City Policeman who X confiscated the Marihuana from under the passengers seat. As soon as I saw the paper bag, I thought Mr. Alaniz had put it there, because I had seen him with a paper bag, but I also forgot that I had seen him throw it out. So I told the City Policemen that I had picked Mr. Alaniz here in Monahans carring a paper bag and that I did not know what was in it. So now I am trying to clear him and trying to clear my mind as to what really happened. It could have been forgotten there by the guy whom I took home, or he could have given it to me, and then I could have stolen it from him, but then I know damn well he had more than that, anyway thats’ what L.S.D. did to me and in a way 1 am glad 1 was caught, because I could have killed someone, because all the lights looked the same to me.
      “So when you take our case before the Grand Jury I hope you take this statement into consideration and have my bond lowered, so I can make it, and get myself, self commited, or court Commited to the state Mental Hospital in Big Spring, Tex. Because I need help and want to be helped before I get introduced to other drugs, or hard drugs, and have to spent the rest of my life behind bars.
      “So any consideration on my behalf will be kindly and gratefully Appreciated.
      “Yours very truly,
      “Mr. Margarito Pina”

      . ABA Standards Relating to The Defense Function, Sec. 3.5, provides:
      “(a) At the earliest feasible opportunity defense counsel should disclose to the defendant any interest in or connection with the case or any other matter that might be relevant to the defendant’s selection of a lawyer to represent him.
      “(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation. In some instances, as defined in the Code of Professional Responsibility, accepting or continuing employment by more than one defendant in the same criminal case will constitute unprofessional conduct.
      “(c) In accepting payment of fees by one person for the defense of another, a lawyer should be careful to determine that he will not be confronted with a conflict of loyalty since his entire loyalty is due the accused. [When the fee is paid or guaranteed by a person other than the accused, there should be an explicit understanding that the lawyer’s entire loyalty is to the accused who is his client and that the person who pays his fee has no control of the case.] It is unprofessional conduct for the lawyer to accept such compensation except with the consent of the accused after full disclosure. It is unprofessional conduct for a lawyer to permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.
      “(d) It is unprofessional conduct for a lawyer to defend a criminal case in which the lawyer’s partner or other professional associate is or has been the prosecutor [or has participated in or supervised the prosecution at any stage.]”

      . The federal courts analyze the question of ineffective assistance of counsel resulting from a conflict of interest in a manner differing from the analysis invoked by this Court. Reversible error results from an attorney’s less than reasonably effective assistance (as distinguished from that degree of incompetency which results in a fundamentally unfair trial) only if the petitioner shows “some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied.” Fitzgerald v. Estelle, 505 F.2d 1334 at 1337 (5th Cir. 1974). This is the test applied to representation by retained counsel. The inquiry then focuses on whether the assistance provided by the retained attorney was adequate under the Herring v. Estelle, 491 F.2d 125 (5th Civ. 1974), standard. That standard is also followed by this State in cases involving appointed attorneys, and that is whether the attorney was reasonably likely to and did render reasonably effective assistance. Ex parte Gallegos, Tex.Cr.App., 511 S.W.2d 510; Ex parte Bratchett, Tex.Cr.App., 513 S.W.2d 851. Under this analysis, the federal courts would be forced to evaluate petitioner’s counsel’s assistance according to the Herring v. Estelle standard since the existence and contents of the exculpatory letter were known both to the trial judge and prosecutor as was the failure, of petitioner’s trial counsel to introduce this evidence on his client’s behalf. See U. S, v. Huntley, supra. The record also reflects that the trial court and prosecutor were aware of trial counsel’s dual representation status. The failure to introduce evidence favorable to one’s client can only be viewed as less than reasonably effective assistance.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Marvin Joel FENTIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57024, 57025.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 11, 1979.
    Rehearing En Banc Denied July 18, 1979.
    Robert M. Jones (court appointed on appeal only), Dallas, for appellant.
    Henry M. Wade, Dist. Atty. and Maridell Templeton, Asst. Dist. Atty., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Appellant was convicted for the offenses of assault with intent to murder a police officer under the former Penal Code, Article 1160a, V.A.P.G. The jury assessed his punishment in each case at life.

Appellant challenges the sufficiency of the evidence and contends that the court erred in refusing to submit charges on lesser included offenses. We overrule these contentions and affirm.

The State’s evidence is substantially the same as that in Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.1975), which was reversed (with one judge dissenting) because a question was asked if he was the Joel Fentis who was under indictment in Houston for killing a police officer. Shortly after midnight on March 4, 1973, Garland police officers Don M. Ashlock and James A. Bunch were patrolling in an unmarked police car when they observed appellant walking north on Robin Road at a fast pace with his hand in his pocket. Appellant continuously watched the police car over his right shoulder. The officers approached and stopped their vehicle. Appellant then turned and advanced toward the car. The officers got out of their car and Bunch yelled at appellant to take his hand out of his pocket. Appellant removed his hand, displayed a pistol and began firing at the officers. During the shooting, appellant and Officer Ashlock were wounded.

Officers Bunch and Ashlock testified that at the time of the incident they were in full uniform and within twenty-six feet of appellant. The area was lit by mercury vapor lights and several witnesses stated that there was sufficient light for an individual to readily identify police officers as such from a distance of more than twenty-six feet. The officers were outside of their car and their uniforms bore an American flag, a badge, name tag and brass buttons. Appellant did not testify or offer any witnesses.

Viewing the evidence in a light most favorable to the verdict, we hold that the evidence was sufficient to support the verdict.

Appellant contends that the trial court erred in refusing to submit a charge to the jury on the lesser included offenses assault with intent to commit murder with malice, assault with intent to commit murder without malice and aggravated assault on a police officer.

Assault with intent to murder is not a lesser included offense of assault upon a police officer with intent to murder. Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974); Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1974); Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972). In Ellard v. State, supra, we held that when an assault is made upon a police officer with a deadly weapon per se, “the intent to kill is presumed and it is not necessary to charge on aggravated assault or simple assault, even if they be considered lesser offenses.”

Even if we were to hold that the requested charges covered lesser included offenses, no error would be shown because there was no evidence that appellant committed only a lesser included offense. See McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974).

Here, the court’s charge specifically provided that the jury must find that appellant knew the individuals were police officers before they could convict him. This was sufficient.

There is no reversible error. The judgments are affirmed.

ROBERTS, Judge,

concurring.

The cases cited by the majority do not hold that assault with intent to murder without malice is not a lesser included offense of assault upon a police officer with intent to murder.

I concur in the result because there was no evidence raising the issue of the lesser included offense. See Day v. State, 532 S.W.2d 302, 306-308 (Tex.Cr.App.1975) for a discussion of the correct rule on giving instructions on lesser included offenses.


author: W. C. DAVIS, Judge.

text:
    Stanley Keith BURKS, Appellant, v. The STATE of Texas, Appellee.
    No. 60757.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.
    Rehearing Denied July 3, 1979.

      E. Brice Cunningham and Walter L. Irvin, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., Robert E. Whaley, Daniel P. Garrigan, Ron Poole and Mary K. Ludwick, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. The jury returned affirmative answers to the special issues submitted at the punishment hearing pursuant to Article 37.071, Vernon’s Ann.C.C.P. Accordingly, punishment was assessed at death.

The sufficiency of the evidence is not challenged. On August 10, 1977, the body of the deceased, an 'elderly man, was found in his bed. His face and skull had been beaten in, his throat had been slit and his abdomen had been cut open so that his intestines and bowels protruded. The house, in which he lived alone, had been ransacked and various items of property were discovered missing. A fingerprint, identified as one of appellant’s, was found at the scene. A confession was introduced into evidence, in which appellant admitted that he killed the deceased and then stole various items of property over a three-day period. Other evidence was introduced which tended to connect appellant with the murder during the course of a burglary. Suffice it to say that the evidence of appellant’s guilt of the offense is overwhelming.

Appellant did not testify in his own behalf, but presented a defense of insanity, by extensive use of both psychiatric and lay testimony. However, the jury rejected this defense.

In his first two grounds of error, appellant contends that the trial court erred in failing to quash his indictment because of the systematic exclusion of blacks, Mexican-Americans and persons between the ages of 18 to 21, from the grand juries in Dallas County. Appellant relies upon Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). In Castaneda, the Supreme Court held that the defendant had established a prima facie case of racial discrimination in the selection of grand juries, by showing a disparity between the proportion of Mexican-Americans in the total population and the proportion called to serve as grand jurors over a significant period of time. Once a defendant makes such a showing, the Court held, the burden of proof shifts to the State to dispel the inference of intentional discrimination. Defendant Partida showed that the total population of his Texas county was 79.1% Mexican-American, but that over an eleven year period, only 39% of the persons summoned for grand jury service were Mexican-American. On the list from which the grand jury which indicted Partida was selected, 50% were Spanish-surnamed. This showing, without more, was held to establish a prima facie case of discrimination on the basis of race.

A hearing on appellant’s motions to quash the indictment was held. Appellant’s evidence of the alleged selective exclusion consisted of testimony taken in a hearing on this issue in another case, which evidence was stipulated to by the State. We hold that appellant has failed to establish a pri-ma facie case of the selective exclusion of certain groups from Dallas County grand juries.

With reference to the exclusion from grand juries of persons of the ages 18 to 21, appellant has failed to establish, inter alia, that such individuals constitute a distinctive group, comparable to racial minorities or gender-based classes. See Castaneda v. Partida, supra; Curtis v. State, 573 S.W.2d 219 (Tex.Cr.App.1978); Carillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978). Further, appellant has shown no disparity between the proportional representation of these individuals in the total population and the proportion called to serve as grand jurors over a significant period of time. See Castaneda v. Partida, supra; Carillo v. State, supra. A prima facie case of the selective exclusion of these individuals from grand juries has not been established.

With reference to the exclusion from grand juries of Mexican-Americans, appellant has failed to establish, inter alia, the proportional representation of these individuals in the total population in the county. See Castaneda v. Partida, supra; Carillo v. State, supra. Without considering other facts which appellant has proven or failed to prove, we hold that he has not established a prima facie case of the exclusion of these individuals.

With reference to the exclusion from grand juries of blacks, we hold that appellant has also failed to make out a prima facie case of discrimination. Again, there is insufficient evidence to show a statistical disparity between the percentage of blacks in the total population and the percentage of blacks called to serve. The only evidence of the total population in Dallas County and the percentage of blacks residing therein consisted of the following:

“Q. [defense counsel] Are you aware that the 1970 census for Dallas County said there were one million, three hundred twenty-seven thousand, three hundred twenty-one people in the county; and out of that, there were two hundred twenty thousand, five hundred twelve Negroes, which would roughly—if you want to take my figures—be about sixteen percent of the total population?
“A. [witness] I was aware there were two hundred thousand blacks in Dallas County, but I couldn’t get down to the specifics.”

We cannot hold that this statement by the witness was sufficient proof of the total population of Dallas County, generally, or of the total number of blacks therein, specifically. Thus, appellant has failed to establish the foundation upon which to show a disparity. Given this as the basis for our holding, we need not comment upon the method or sufficiency of proof to show the total number of blacks who served or were called to serve as grand jurors over a significant period of time. Since appellant has failed to make a prima facie case of discrimination under Castaneda v. Partida, supra, these grounds of error are overruled.

In his third ground of error, appellant complains that the admission into evidence of eleven photographs constituted reversible error. He argues that the prejudicial and inflammatory effects of these photographs outweighed the probative value of such, and that the trial court abused its discretion in overruling his objections thereto.

The complained-of photographs depict the decomposing body of the deceased after he had been killed in a very brutal manner. Other photographs depict the room in which the body was found, which was spattered with blood and bits of human tissue. In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). We feel that if a photograph was competent, material and relevant to an issue at trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, or unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and scene of the crime would be admissible, a photograph depicting the same is admissible. Martin v. State, supra; Welch v. State, 576 S.W.2d 638 (Tex.Cr.App.1979); Shannon v. State, 567 S.W.2d 510 (Tex.Cr.App.1978); Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977); Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App.1977).

In the instant case, verbal descriptions of the body of the deceased and of the scene of the murder were admissible. Therefore, the trial court did not abuse its discretion in admitting the photographs. See Martin v. State, supra; Welch v. State, supra; Denney v. State, supra; Cerda v. State, supra. No error is shown, and this ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court erred in admitting into evidence a written confession signed by appellant. He contends that the confession was involuntary and that it was made only as a result of threats and coercion.

The record reflects that a hearing was held out of the presence of the jury. Officer Truly Holmes of the Dallas Police Department testified that on August 30, 1977, he took appellant from the county jail to his office, where they talked. Officer Holmes testified that he told appellant that he was a police officer investigating a murder, that appellant had the right to remain silent, that anything he said could be used against him in court, that he had the right to an attorney, appointed if necessary, during the questions, and that he could terminate the interview at any time. Officer Holmes stated that appellant said he understood his rights and wanted to waive them.

According to Officer Holmes, appellant first denied that he committed the offense. Holmes stated that he then told appellant of the fingerprint which was found at the scene of the murder. Holmes testified that appellant then became “disgusted” with himself for having left a fingerprint at the scene, and then said that he would talk about it. Appellant then gave a statement in which he admitted that he entered the deceased’s house by cutting a screen, beat the deceased in the head with a hammer some thirty times, slashed open his throat and stomach, and then stole property over a three-day period. This statement was then typed and copy given to appellant, after which Officer Holmes read it aloud to appellant, including the constitutional warnings. Holmes stated that he asked appellant if there were anything which he wanted changed, and that appellant said that the statement was absolutely the truth. Appellant then signed both pages of the statement, in the presence of a witness.

Officer Holmes denied that he ever promised anything to appellant, or coerced him, or made offers of leniency or favors to him, or used any kind of persuasion or coercion in order to induce appellant to make a statement. He denied that he ever threatened appellant in any way.

Appellant testified that Officer Holmes told him that he knew that appellant had committed the crime, and that if he did not cooperate, he would tell the jury and see that appellant “got the electric chair.” Appellant further stated that Holmes told him that if he did cooperate, then he would not get the electric chair. He testified that it was only because of this threat that he made and signed the statement.

Officer Holmes denied that he ever made such a threat. He stated that after appellant signed the confession he (appellant) inquired as to the range of punishment for the offense. Holmes stated that he told appellant that the range of punishment included death. He testified that in response to appellant’s inquiries he told appellant that death could either be by electrocution or lethal injection.

Thus, it appears that appellant’s testimony concerning the circumstances under which he made the confession was disputed by Officer Holmes. This gave rise to a question of fact which the trial court, as the trier of fact, resolved against appellant in his findings of fact and conclusions of law. At a hearing on the voluntariness of a confession, the trial judge, as the trier of fact therein, is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Williams v. State, 566 S.W.2d 919 (Tex.Cr.App.1978); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976); Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974). In the instant case, the trial judge resolved the questions of fact against appellant, and the findings are supported by evidence adduced at the hearing. Therefore, appellant’s fourth ground of error is overruled.

In his fifth ground of error, appellant complains of the trial court excusing prospective jurors who were disqualified under V.T.C.A. Penal Code, Section 12.31(b), without first determining whether they were qualified under the doctrine of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In a capital murder case, a prospective juror may be disqualified under either Witherspoon or Section 12.31(b), or both. Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976). A prospective juror who is disqualified under Wither-spoon need not be disqualified or even questioned under Section 12.31(b); conversely, a prospective juror who is disqualified under Section 12.31(b) need not be disqualified or questioned under Witherspoon. Bodde v. State, supra; Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Moore v. State, supra. Therefore, there was no error in the trial court’s excusing prospective jurors who were disqualified under Section 12.31(b), without first allowing inquiries into their qualification under the Witherspoon doctrine.

Further, appellant’s contention that Section 12.31(b) is unconstitutional in light of Witherspoon v. Illinois, supra, has been decided adversely to him. This Court has consistently held that the statutory scheme for the selection of jurors in capital cases in Texas comports with the constitutional requirements of Witherspoon. Adams v. State, 577 S.W.2d 717 (1979); Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977); Burns v. State, supra; Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976); Moore v. State, supra. This ground of error is overruled.

In his sixth ground of error, appellant contends that the trial court erred in admitting into evidence an oral statement made by appellant to Police Officer Holmes. Appellant does not direct our attention to the admission of any such oral statement in the record, and our reading of the record has revealed no such statement was admitted. The gist of appellant’s complaint appears to relate to the admission into evidence of several articles, stolen from the deceased’s house, which perhaps appellant contends are the “fruits” of such statement. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The record reflects that immediately after taking appellant’s written confession Officer Holmes took appellant to appellant’s house to recover evidence referred to in the written statement. The record does not reveal what, if any, oral statements were made to Officer Holmes of which appellant now complains. Further, the record does not reflect that these items recovered were the “fruits” of any statements other than those contained in the written confession. Since we have previously held that the written confession was properly admitted, and since it does not appear that the items recovered were other than the “fruits” of this confession, this ground of error is overruled. Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975); Gutierrez v. State, 502 S.W.2d 746 (Tex.Cr.App.1973).

There being no reversible error, the judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

We granted appellant’s leave to file motion for rehearing in order to further consider appellant’s contention that the grand jury Commissioners in Dallas County, who appoint the grand jurors, were improperly selected over a period of time. This ground of error is multifarious, and contains no citations to the record, and therefore is not in compliance with Article 40.09, Section 9, Vernon’s Ann.C.C.P. However, in the interest of justice, it shall be reviewed.

Appellant now complains that the method of selection of the grand jury Commissioners is unconstitutional, that grand jury Commissioners were not selected in compliance with Article 19.01, Vernon’s Ann.C. C.P., and that there has been discrimination in the selection of the Commissioners.

Article 19.01, supra, provides that:

“The district judge, at or during any term of court, shall appoint not less than three, nor more than five persons to perform the duties of jury commissioners, and shall cause the sheriff to notify them of their appointment, and when and where they are to appear. The district judge shall, in the order appointing such commissioner, designate whether such commissioners shall serve during the term at which selected or for the next succeeding term. Such commissioners shall receive as compensation for each day or part thereof they may serve the sum of Ten Dollars, and they shall possess the following qualifications:
1. Be intelligent citizens of the county and able to read and write the English language;
2. Be qualified jurors in the county;
3. Have no suit in said court which requires intervention of a jury;
4. Be residents of different portions of the county; and
5. The same person shall not act as jury commissioner more than once in the same year.”

In Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the Supreme Court reiterated that the Texas “key man” system for selecting grand juries is facially constitutional. See also, Carter v. Jury Comm’n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). Appellant has made no showing that the selection of the Commissioners by the district judges constituted an abuse in this system, or that the system was unconstitutionally applied. See and compare Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). This contention is overruled.

Further, appellant has failed to show non-compliance with Article 19.01, supra. The testimony of the district judges who selected grand jury Commissioners over the years indicates nothing other than that they complied with the statute in selecting Commissioners. Appellant has failed to show otherwise. This contention is overruled.

Finally, appellant contends that he has shown discrimination against blacks, Mexican-Americans and persons between 18-21 years of age in the selection of the grand jury Commissioners. Even if Castaneda v. Partida is applicable to the selection of Commissioners as well as to the selection of the grand jurors themselves, appellant has failed to establish a prima facie case of discrimination. This failure of proof is discussed in our review of appellant’s first two grounds of error in our opinion on original submission. This contention is likewise overruled.

In our opinion on original submission, we overruled appellant’s fifth ground of error wherein he complained of the trial court excusing prospective jurors under V.T.C.A. Penal Code, Section 12.31(b), without first determining whether they were qualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We now hold that appellant failed to preserve any error relating to this ground. Prospective jurors Arlie Holman, Linda Newman, Maurice Cantu, Patricia Morgan, Laverne Russell, Angela Brennan, Mary Annette Davis and Ollie Grindell were all excused without objection by appellant. Failure to object to the improper exclusion of veniremen waives that right and such exclusion cannot be considered on appeal. Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976). Error, if any, was also waived as to prospective juror Elizabeth Williams. Appellant made no attempt to show that she was qualified under Witherspoon or to show that she was excused in violation thereof. The record does not reflect that appellant, over any objection, was denied an opportunity to elicit her feelings concerning the death penalty. See Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976). Appellant cannot complain on appeal on the basis of a ground not raised in the trial court. Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Campbell v. State, 492 S.W.2d 956 (Tex.Cr.App.1973). No error is presented for review in appellant’s fifth ground of error.

Appellant’s motion for rehearing is overruled and judgment is affirmed.

      . The State maintains that appellant waived this ground of error by failing to challenge the array of the grand jury before it was impaneled. See Article 19.27, Vernon’s Ann.C.C.P.; Muniz v. State, 573 S.W.2d 792 (Tex.Cr.App.1978). We do not reach this issue, since the record reflects that, while the offense was committed before the impanelment, appellant’s attorney was not appointed until a few weeks thereafter. Thus, it appears that appellant was without the assistance of counsel at the time when the grand jury array could have been challenged under Article 19.27, supra; cf. Muniz v. State; supra.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Section 12.31(b), supra, provides:
      “Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

      . In Witherspoon, the Supreme Court of the United States stated:
      "Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.”
      The Court further stated:
      “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.”
      The Court elaborated in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969):
      “[i]t is entirely possible that a person who has ‘a fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.”
      Further, in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) the Court reaffirmed the Witherspoon doctrine and held that no death penalty can stand if a single venireman is excluded in violation of that doctrine.

      . In his motion for rehearing, appellant makes reference to some exhibits and grand jury records, which he contends supply proof of his claims. Appellant’s evidence concerning his grounds of error relating to the grand jury system consisted of testimony taken in a hearing on this issue in another case. At the hearing on appellant’s motions to quash his indictment, both appellant and the State stipulated to the introduction of the testimony taken previously. There was no mention of the inclusion of exhibits or grand jury records. Thus, the only evidence before this Court consists of the testimony of the witnesses at that previous hearing; other exhibits and grand jury records do not appear in the appellate record in the instant case.


text:
    Henry MENDOZA, Appellant, v. The STATE of Texas, Appellee.
    No. 55827.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 18, 1979.
    Rehearing En Banc Denied July 18, 1979.
    M. N. Garcia, Austin, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

Henry Mendoza appeals his conviction for possession of heroin. Punishment was assessed by the court at twenty years.

Mendoza contends that the evidence was insufficient, that his consent to search was not voluntary and that he was improperly denied the right to conduct an independent chemical analysis of the heroin. We reject these contentions and affirm.

During the evening of February 25, 1976, officers from the Lockhart Police Department conducted a search of appellant’s home after he gave his written consent. The officers entered a closet in the home and found behind a chest of drawers a plastic bag which they thought to contain heroin. On a shelf in the closet they found a can of lactose. They found some plastic baggies and small pieces of tinfoil. They found a coat with $1800 in cash in a pocket. This was some three or four feet from the lactose. Appellant stated that the money and the coat were his. He counted out the money and kept it. He claimed that the lactose was his, that he used it for food. The small pieces of tinfoil were about two inch squares. An officer testified that narcotic dealers used the tinfoil squares like those they found in the closet to wrap heroin and sell it. One square would hold one “shot” of heroin. He also testified that lactose was used to cut heroin. An officer testified that appellant had $1,000 on his person. Appellant, his wife and children were in the house. One baby was up and the rest were asleep. Appellant had a lot of names and telephone numbers on his person.

A chemist for the Department of Public Safety said he found eight milligrams of heroin in the packet submitted to him for examination. It was a small sample but enough for a dosage. He found it to be extremely pure. He also testified that lactose was milk sugar and that it is used for cutting heroin.

The evidence shows that appellant had lived in the house from October until February, the time of the arrest; that his wife and children lived with him. There is no one else shown to be in the house except his wife and his children. The heroin was found in the closet, along with his clothes. All of the circumstances, such as the finding of the tinfoil, the plastic bags, the lactose near where appellant kept his clothes, was sufficient to show that he possessed heroin. It would have to be an unbelievable hypothesis that he did not possess it.

This case is distinguishable from Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978). In Damron, where marihuana was found in the closet of a house occupied by the defendant and his wife, we reversed the conviction because the evidence was insufficient. In Damron, we stressed that the defendant was not present at the time of the search, that the closet was not shown to be in his bedroom, that no personal items belonging to him were in the closet and he did not make any incriminating statements at the time of the arrest. In the instant case, clothing and a large amount of cash belonging to appellant were found in the closet. Appellant also admitted that the lactose was his. Unlike Damron, Mendoza was directly linked to the closet.

Complaint is next made that a consent to search signed by Mendoza was not freely and voluntarily made. Officer Dean Reed of the Lockhart Police Department testified as follows concerning the events surrounding Mendoza’s consent:

“Q. Would you read it in front of the jury as you read it to Henry Mendoza.
“A. T have been requested by Dean Reed, Patrolman for the Police Department of the City of Lockhart, Texas, to permit him and other officers to search my house located at 614 S. Blanco St., Lockhart, Caldwell County, Texas. I have been informed that I do not have to consent to such a search and that I have the right to refuse to consent to such a search. I understand my rights and I freely and voluntarily consent to the search. Date: 2/25, 1976.’ Signed by Henry Mendoza.”

The written consent form was introduced. Officers Ed Braun and Mark Hinnenkamp both testified that Mendoza executed the consent. Appellant did not introduce any evidence to show coercion.

The written consent in the record indicates that Mendoza voluntarily and with knowledge that he could refuse the search signed the consent form. The record does not reflect any evidence of coercion beyond that inherent in any situation where an officer asks a citizen to consent to a search. We conclude that the consent was freely and voluntarily given with full knowledge that he could refuse permission to search.

Mendoza contends that he was denied the opportunity to have an independent chemical analysis made of the heroin. The accused is entitled to have any alleged contraband tested by his own chemist if he makes a timely request for such an opportunity. Montes v. State, 503 S.W.2d 241 (Tex.Cr.App.1974); Detmering v. State, 481 S.W.2d 863 (Tex.Cr.App.1972).

Mendoza argues that item 15 of his discovery motion, which was granted by the court, constitutes his request for the independent chemical analysis. Item 15 requested inspection of:

“Any tangible object, written statement, report, or any other type of evidence that would be favorable to this Defendant in the preparation of his defense.”

This is insufficient to constitute a request for an independent chemical analysis of the drug.

There is no error. The judgment is affirmed.

ROBERTS, Judge,

dissenting.

I dissent to the majority’s holding that the evidence in the present case affirmatively links the appellant to the minuscule amount of heroin in question.

The majority’s attempt to distinguish Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978) from the present case is tenuous at best. In Damron, we sustained an insufficiency of evidence contention on facts closely analogous to the present case for the following reasons:

“In the instant case the appellant was (1) not at the place searched at the time of the search, and (2) there were other persons present at the time of the search and shown to be living there so appellant was not in exclusive possession, (3) the marihuana was found in a closet in a bedroom without any showing it was appellant’s bedroom or the only bedroom in the house and no showing of appellant’s personal belongings in the closet or bedroom or even the observation of any men’s clothing, etc., and (4) appellant was not found in possession of any contraband at the time of arrest nor (5) was he under the influence of any narcotic and (6) he did not make any incriminating statements at the time of arrest.” Ibid, at 936.

In the present case, appellant had been living at the house in question for approximately four months with his wife and children, the number and ages of which are not reflected by the record. The house was furnished when it was rented and the utilities were connected in the name of appellant’s wife. On the night in question, appellant consented to the search and made no incriminating statements at that time. The other members of appellant’s family were also present when the search was conducted. The closet in which the heroin was found contained men’s as well as women’s clothing and a set of barbells, none of which was identified as belonging to the appellant. There was no showing that the bedroom in which the closet was located was the appellant’s bedroom or the only bedroom in the house. No contraband was found on appellant’s person at the time the search was conducted, nor was he at that time under the influence of narcotics.

The majority distinguishes the present case from Damron by saying that “In the instant case, clothing and a large amount of cash belonging to appellant were found in the closet. Appellant also admitted that the lactose was his. Unlike Damron, Mendoza was directly linked to the closet.” (Emphasis supplied.) This reasoning is not sound. The appellant must be affirmatively linked to the contraband itself rather than the immediate area in which it was found. Where an accused is not in exclusive possession of the premises where the contraband is found, it cannot be concluded that he had knowledge of the narcotic and had control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the narcotics. Damron v. State, supra. See also Williams v. State, 521 S.W.2d 275 (Tex.Cr.App.1975).

In light of the circumstances of the present case and for the reasons announced in Damron, supra, I would conclude that the evidence is insufficient to prove that appellant knowingly possessed heroin as alleged in the indictment. Guitierrez v. State, 533 S.W.2d 14 (Tex.Cr.App.1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976), and cases there cited.

Accordingly, the judgment of conviction should be set aside and reformed to show an acquittal. For the foregoing reasons, I dissent.

      . Unlike the majority, I fail to perceive the significance of this distinguishing factor under the facts of the present case.


author: DOUGLAS, Judge.

text:
    Jack JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 58915.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 25, 1979.
    Rehearing En Banc Denied July 18, 1979.

      Phillip Westergren, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

Jack Johnson appeals his conviction for aggravated rape. After finding that he had previously been convicted of a felony, the court assessed punishment at life.

Johnson contends that the court erred when it denied his request for a mental examination, admitted mug shots of Johnson, allowed a State’s witness to bolster identification testimony, refused admission of a written prior inconsistent statement, admitted the fruits of an illegal search and seizure, allowed the State to make an inaccurate statement on voir dire, admitted inaccurate pictures of the victim, told the jury that he did not want a mistrial, refused to excuse a juror and continue the case with eleven jurors, refused to allow the defense to question a juror, admitted hearsay evidence and refused admission of checks. Johnson also contends that the prosecutor deliberately denied him a fair trial and specifically contends that the State committed error by suppressing evidence, referring to the defense’s motion to suppress evidence, eliciting incompetent evidence that the victim’s wounds looked like someone was trying to kill her, improperly questioning a female witness, and making repeated improper jury arguments. Appellant also contends that the evidence to support the aggravated portion of the conviction was insufficient as was the proof of his prior conviction and that the indictment was defective. We overrule the contentions and affirm.

S. J., a 17-year-old, had helped her grandmother move to Corpus Christi and was staying with her during the early summer of 1977. She arrived at her grandmother’s apartment complex around 11:30 p. m. on June 21,1977. A man, whom she identified as appellant, approached her car, punched her in the face, told her he had a gun and ordered her to come with him. S. J.’s hands were bound and she was driven in a pickup truck. Johnson told her that he doubted she would see daylight again. S. J. was taken inside a building where Johnson had sexual and anal intercourse with her. He then bound her legs, placed the rope around her neck, and inserted a metal rod in her vagina. He subsequently beat her with the rod. She was dragged naked back into the pickup and placed under a tarp. Johnson then drove her into the countryside and hit her several more times with the metal rod. S. J. testified that she played dead. Johnson drove off. S. J. was hospitalized for three days. She had numerous wounds and several cuts on the head which required eighteen stitches to close. Two doctors gave their opinions that the blows she sustained could have caused serious bodily injury and a substantial risk of death.

The aggravated portion of the instant indictment alleges that “in the course of compelling her to submit to such intercourse he did then and there cause serious bodily injury by striking her on the head with a metal rod.” Bodily injury is defined as “physical pain, illness, or any impairment of physical condition.” V.T.C.A., Penal Code, Section 1.07(a)(7). Serious bodily injury has several definitions including “bodily injury that creates a substantial risk of death.” Y.T.C.A., Penal Code, Section 1.07(a)(34). The jury heard S. J.’s description of the blows she received, they observed the metal rod, they heard the doctors’ description of the injuries and their opinions that the blows could have created a substantial risk of death. The evidence was sufficient for the jury to find that the blows to the head caused physical pain and created a substantial risk of death.

Johnson also contends the evidence was insufficient to prove his prior rape conviction was final before the commission of the instant offense. The prior conviction was proved with certified copies of the judgment and sentence. They reflected that Johnson entered a guilty plea and was convicted and sentenced on January 16, 1974. The record is silent concerning notice of appeal. Appellant offered no evidence.

The judgment and sentence do not indicate notice of appeal was given. If this were the case, the prior conviction became final during January, 1974. Once the State introduces such prima facie evidence of a final conviction, the defense has the burden of proving that the conviction was not final. Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App.1975). No such proof was presented. Thus, the evidence shows the prior rape was final in January, 1974 and the instant offense was committed on June 21,1977. The proof was adequate to show the prior conviction was final before the commission of the present offense.

Johnson contends the indictment fails to allege that he had sexual intercourse with S. J. because it alleges only that he did “compel her to submit to sexual intercourse.” A motion to quash on this issue was overruled. Johnson argues that “[i]t is quite possible to compel one to submit to something without her actually submitting.” We disagree. Taken in context, we find that only by straining the English language beyond common sense can the questioned phrase be read not to mean that sexual intercourse was accomplished. The motion to quash was properly overruled.

Complaint is made that the court should have ordered a mental examination of appellant. Johnson never requested such an examination. He did file a motion for continuance listing several reasons including that he “may not be of sound mind.” In the absence of a request, the court was under no duty to order a mental examination.

Although he does not specifically assign it as error, in his argument concerning the mental examination, Johnson suggests that the court should have on its own motion ordered a competency hearing. He argues that the motion for continuance and a trial outburst made by Johnson in which he threatened to get the prosecutor were sufficient to create a bona fide doubt as to Johnson’s competence. The language in the motion for continuance can best be described as tentative and conclusory. The trial outburst, while unwise, was lucid and was not repeated during the trial. Standing by themselves, these facts do not raise a reasonable doubt as to Johnson’s competence.

Johnson contends that mug shots were admitted into evidence, thus implying that he had a criminal record. S. J. had identified Johnson at a pre-trial photo spread. The photos of Johnson that were in the photo spread, a front and profile, were admitted into evidence. The photo did not contain a number, date or any other writing. He contends that the photograph showed a chain around his neck which indicated that this was a mug shot. Men now often wear chains as jewelry. It does not follow that the jury concluded that this was a mug shot. We disagree with Johnson’s argument that a profile picture implies a police record. The photograph was properly admitted.

Johnson contends that Officer Olivia Escobedo, who was present at the pre-trial photo spread, should not have been allowed to bolster S. J.’s unimpeached identification testimony by testifying that S. J. had identified appellant’s picture. S. J. was vigorously cross-examined concerning her identification of Johnson. The State may bolster an identification witness’ testimony when that identification is challenged by cross-examination. Proctor v. State, 503 S.W.2d 566 (Tex.Cr.App.1974). No error is shown.

Complaint is made that S. J.’s prior, written statement, which was inconsistent with her trial testimony in that it stated her attacker had a moustache, should have ■ been admitted into evidence. On direct examination, S. J. testified that her attacker did not have a moustache. On cross-examination, defense counsel had her read a prior, written statement wherein she described her attacker as having a moustache. Since the contents of the statement were before the jury, exclusion of the actual writing could not harm appellant.

Johnson’s next contention concerns the admission of physical evidence from the building where the rape occurred. Johnson contends that this evidence, consisting of blood, hair and rope samples along with pictures of where these samples were taken, was the product of an illegal search and seizure. The place searched was a building which was leased by Johnson’s father for the purpose of conducting business. The items seized were discovered in an open, nearly empty room; they were not concealed. The business had been moved and all that remained was some equipment. Johnson and another employee had a key to the building. The court ruled that Johnson had no standing to contest the search.

Standing can be established in three ways: (1) the accused is lawfully present at the premises during the search; (2) the item seized is an essential element of the offense, or (3) the accused has either proprietary or possessory interest in the place searched. Kleasen v. State, 560 S.W.2d 938 (Tex.Cr.App.1977). In the recent case of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court stressed that Fourth Amendment rights are personal and claims of standing should be carefully scrutinized. The Rakas Court also gave careful consideration to Rakas’ expectation of privacy in the place to be searched.

Johnson argues that he had a pos-sessory interest in the property. The record reflects that he had access, as an employee, to the building which was searched. His father, another employee and the owner also had access to the building. Under the facts of this case we hold that Johnson’s access as one of several employees and others with such access does not create a pos-sessory interest. See Commons v. State, 575 S.W.2d 518 (Tex.Cr.App.1978). Similarly, the number of individuals with access negates any argument that he had an expectation of privacy in the entire building in general. The trial court correctly held that Johnson lacked standing.

Complaint is made that the prosecutor should not have been allowed to tell the jury on voir dire that aggravated rape can be accomplished by threats since the instant indictment charged only the actual causation of serious bodily injury. The statement on voir dire was a correct statement on the law. V.T.C.A., Penal Code, Section 21.03. The charge carefully and accurately authorized conviction only on proof of the actual infliction of serious bodily injury. No error is shown.

Appellant’s next contention is that pictures of S. J., with her hair partially shaved to reveal her skull injuries, should not have been admitted since they depicted things done to S. J. by someone other than Johnson. A photograph that fairly and accurately depicts its subject matter is generally admissible. Any discrepancies between the picture and the subject at its relevant time, if properly pointed out, will not render the picture inadmissible. ■ The jury was informed that S. J.’s head was shaved in the hospital. No error is shown.

The next three grounds of error all arise from the manner in which the court recessed the case for two days while a juror whose grandson died of a self-inflicted gunshot wound visited with her family. The court, in explaining the situation to the full jury, stated:

“Ladies and gentlemen, the grandson of Mrs. Paschal who sat on the end here was in an accident, and was accidentally shot yesterday evening, and is in critical condition in the hospital. In view of that I am going to recess this trial until Friday morning. We will just have to find out what the situation is. We will keep you informed if, for instance, we cannot continue the trial Friday morning, we will contact you by telephone. But let me ask you to please not read anything in the paper about this case on trial. Do not talk to anybody, do not watch television about it. I want you to continue through the trial in your impartial frame of mind that you are now, and I do not want that violated because I do not want a mistrial. We have invested considerable time in the trial and expense, and I want this trial to continue to its completion the same way . . ..”

Johnson contends the court erred in making this final statement to the jury. He also contends that the court erred in not excusing the juror and continuing with eleven jurors and in not allowing him to more^ extensively question the juror.

A trial judge necessarily has broad discretion to deal with the many unexpected situations which arise during trial. Sapata v. State, 574 S.W.2d 770 (Tex.Cr.App.1978). A judge has only his common sense to guide him in dealing with a juror whose grandson dies of a self-inflicted gunshot wound during trial. We find the court’s actions were all proper and in no way can be said to have infringed on Johnson’s right tó a fair trial. We disagree that the court’s statements regarding a mistrial were an indication of a bias toward the State. No abuse of discretion is shown.

Complaint is next made that the State was allowed to introduce hearsay evidence to establish that a pickup truck, which Johnson had sold prior to the time of the rape, could not have been the same one used the night of the rape. Officer Escobe-do testified on redirect examination as follows:

“Q. Did you determine where that truck was the early morning hours of the night of June 21st, early morning hours of June 22?
“A. Yes, sir, Mr. Surginer gave us the statement saying that the truck was parked . . .

A series of comments and objections followed which resulted in the hearsay objection being sustained. The examination then continued:

“Q. From your investigation, do you know where the red and white pick-up was the night of June 21st and the early morning hours of June 22nd?
“A. Yes, sir, I do.
“Q. From your investigation, was it any where close to the Sage West Apartments or the Spindletop Lounge?
“A. No, sir, it wasn’t.”

No further objection was made.

The record does not reflect that this ultimate answer was based on hearsay information. Appellant’s last hearsay objection was sustained. No further objection was made. Thus, the record reveals neither hearsay nor an adverse ruling. No error is shown.

Complaint is next made that checks, offered by appellant, should have been admitted into evidence. Lanie Johnson, appellant’s wife, testified that appellant was with her in Nueces County at the time of the alleged rape. The State presented evidence that Lanie Johnson was at a funeral in Louisiana at the time. In rebuttal, Lanie Johnson was recalled and testified that she negotiated two checks in Corpus Christi on June 22 and 23, 1977. She identified the checks which the court then refused to admit. Both checks are included in the record as a bill of exception. The checks, which bear the dates June 22 and 23, 1977, are drawn on the account of and signed by J. B. Terry. Lanie Johnson’s testimony does not account for this discrepancy.

Lanie Johnson was allowed to testify fully concerning the checks. The checks, in that they do not bear her name or signature, are of relatively little support to her testimony. Given these facts, we conclude the actual checks had little, if any, probative value. No harm is shown in their exclusion.

Johnson next makes several contentions which are bottomed on his argument that a similar rape occurred three weeks prior to the instant rape and was committed by someone else. He contends that the prosecutor suppressed this evidence and that his motion for new trial based on this newly discovered evidence should have been granted.

At approximately 5:45 a. m. on June 3, 1977, M. S. was attacked in her home by Billy Bierschwale, a 17-year-old boy who lived in her neighborhood. Bierschwale matched the general physical description of appellant. He forced M. S. to submit with threats of death and he beat her with a wooden stick. There also was some indication that Bierschwale inserted something into his victim’s vagina. During the course of the rape, Bierschwale made statements including the following: “Can you guess how old I am?”, “I will come back”, “I didn’t mean to hurt you”, and “Goodby, I love you.” He repeatedly brushed his victim’s hair during the attack. He eventually left, leaving his victim without significant physical injuries.

In his brief, appellant asserts, “The manner of commission of both offenses are so identical they almost certainly had to be committed by the same person.” We cannot agree. The Bierschwale rape occurred in the victim’s home, she was not seriously beaten, Bierschwale made non-hostile statements, he brushed his victim’s hair, and he left his victim in her house. All of these factors are in sharp contrast to the abduction, hostile rape, relatively brutal beating, binding of hands and feet, use of an unoccupied building and act of leaving the victim along the side of the road which characterized the instant rape. There are similarities between the rapes. However, the differences are great. Significantly, the victims made positive identification of their attackers in both cases. The proffered testimony had no probative value in the instant case. Therefore, the State was under no duty to disclose this evidence and the court did not err in denying a motion for new trial based on this evidence. See Gill v. State, 479 S.W.2d 289 (Tex.Cr.App.1972).

Complaint is next made that the prosecutor mentioned a defense motion to suppress in front of the jury. The defense was cross-examining a witness concerning testimony she gave during the motion to suppress hearing. The following then transpired:

“MR. MOBLEY: What hearing is that you referred to?
“MR. WESTERGREN: I am addressing the witness.
“MR. MOBLEY: What type of hearing?
“MR. WESTERGREN: May I proceed?
“MR. MOBLEY: Your Honor, we have had several hearings. We would like for him to indicate which hearing in order that we might be correct in looking at the same statement of facts.
“MR. WESTERGREN: He has got it right there. Mr. Botary knows very well.
“MR. MOBLEY: He is testifying not under oath. I’d like for him to state what hearing he is talking about.
“COURT: Would you compare that with that and see if it’s the same thing?
“MR. MOBLEY: We would like the record to reflect that he is going to read from a statement of facts adduced at a hearing on a motion to suppress evidence on August 29, 1977.
“MR. WESTERGREN: Can we approach the Bench?
(Bench conference among Mr. Mobley, Mr. Westergren, and the Court out of hearing of the jury.)
“MR. WESTERGREN: I object to the Prosecutor bringing out the fact that it was a motion to suppress evidence. The jury had no business knowing there was a motion to suppress evidence.
“COURT: It wasn’t necessary, and it shouldn’t have been mentioned.
“MR. WESTERGREN: I move for a mistrial.
“COURT: Yes, sir, and I will deny your motion for a mistrial.”

We agree with the trial court that the prosecutor’s comments were unnecessary. However, any harm to Johnson could have been cured by an instruction to the jury. Such instruction was not requested. No reversible error is shown.

Complaint is next made of unresponsive testimony offered by a deputy sheriff, Jerry Nash. Nash testified on direct:

“Q. Have you seen head injuries in your experience as a police officer over the years?
“A. Yes, sir.
“Q. And from your experience, what type of wound did this appear to be, if you have an opinion?
“A. Well, sir, initially it would have been one caused by someone that tried to kill someone.
“MR. WESTERGREN: Objection, that’s a conclusion. You can’t do that.
“COURT: I will sustain the objection.
“MR. WESTERGREN: May I ask that the Court instruct the jury to disregard?
“COURT: I ask the jury to disregard.
“MR. WESTERGREN: And I move for a mistrial.
“COURT: Your motion is denied.”

Nash’s answer was improper. However, the jury had before it extensive testimony concerning the actual injuries sustained by S. J. It is unlikely that Nash’s statement would influence their opinion of the nature of the injuries. The instruction was sufficient to cure the error.

Johnson next contends that a mistrial should have been granted when the prosecutor called a female witness to testify about appellant’s general attitude towards women and when the court ruled this evidence was inadmissible the witness left the stand crying. Nancy Merritt, a friend of appellant’s wife, was called as a witness by the State. On direct examination, the following occurred:

“Q. Have you had occasion to have conversations with the Defendant Jack Johnson?
“A. I don’t understand.
“Q. What I mean is concerning girls and what they are like and what they like and don’t like?
“MR. WESTERGREN: Objection, Your Honor, that’s improper. It’s not relevant either; it’s going into general habits of the Defendant. It’s not proper.
“COURT: I don’t understand the relevancy of it.
“MR. MOBLEY: Well, what was his attitude?
“MR. WESTERGREN: Objection, Your Honor, the Defendant’s attitude is not an issue.
“COURT: Sustained.
“MR. MOBLEY: Well, we feel that we can go into intent, Your Honor, as to his feeling and attitude about women in general.
“COURT: No, I will sustain the objection.
“MR. MOBLEY: Well, without saying what he says, if anything, have you had a conversation with him about his feeling toward women?
“MR. WESTERGREN: Objection, Your Honor, I think the Court has ruled on this.
“COURT: I will sustain the objection.” The record reflects that Merritt left the stand crying.

Appellant made a timely objection to the testimony which was sustained. The prosecutor then asked a similar question. The objection was sustained. No further questioning was attempted. Only in the most exceptional cases could an unsuccessful attempt to elicit inadmissible testimony require a mistrial. The instant questions did not inject harmful evidence before the jury. No reversible error is shown.

Johnson’s final three grounds of error concern jury arguments. All three occurred during the guilt-innocence phase of the trial.

Complaint is made of the following argument:

“MR. MOBLEY: So look at her [Lanie Johnson]—a domineering father-in-law, a domineering father, a domineering husband. When she broke down, she knew she was lying. She knew she was lying. You heard her.
“MR. WESTERGREN: Your Honor, I would like to object to the statement about the domineering father-in-law. I don’t think there’s any whisper about a domineering father-in-law.
“MR. MOBLEY: They saw the witnesses themselves, Your Honor. They can draw their own conclusions.
“COURT: Objection is overruled.”

There are inferences in the evidence which could be read to support the conclusion that Lanie Johnson had a domineering father-in-law.' However, even if we were to agree that the statement was not supported by the evidence we cannot conclude that it was anything more than the most trivial misstatement. The State had presented its case in chief which included physical evidence and eyewitness testimony linking appellant to the rape. The defense had presented an alibi. The State had rebutted this through testimony indicating Lanie Johnson lied about the alibi. In a lawsuit involving these fact issues, the question of whether or not an alibi witness had a domineering father-in-law is peripheral. No harm is shown.

Complaint is made of this argument:

“This matter is up to you. So may people say, you know when something happens, ‘Well, why doesn’t somebody do something about it?’ Why doesn’t somebody do something about it. Well, S. J. [prosecutrix] has done all she can do. The officers have done all they can do. And I have done all I can do. Because when I sit down, it’s going to be up to you. I just wonder in the morning when the people in this County read the paper and they find out that a man like this is on the street again, if they are going to say, ‘Why doesn’t somebody do something about it? Next time it could be my daughter or my wife.’
“MR. WESTERGREN: Objection, Your Honor. May we approach the Bench, Your Honor?
(The following conference was held out of the hearing of the jury panel.)
“MR. WESTERGREN: He’s playing on the sympathy of the jury and putting the jury in the position of the victim, and I object on the grounds that it is inflammatory.
“COURT: I sustain the objection to placing the jury in the position of the victim.
“MR. WESTERGREN: I ask the Court to instruct the jury to disregard that statement.
“COURT: (Addresses the jury.) I will ask the jury to disregard the last remark of the Prosecutor.
“MR. WESTERGREN: I move for mistrial.
“COURT: It is denied.”

While an instruction does not always cure error, it will normally cure error in jury argument where new facts are not injected into the record and no mandatory statute is violated.

The trial court properly instructed the jury to disregard the argument. We do not believe that the argument was such that the jury would not follow the instructions of the trial judge. The instruction was sufficient.

Finally, complaint is made of this argument:

“You know last Thursday afternoon, in your presence, in the presence of this Court, and in the presence of the people in this Court, this man stood up and threatened me. He said, ‘I’ll get you if it’s the last thing I’ll do.’ Up to then you had seen a man who was sitting there, laughing, joking and talking to his attorney, making little notes, whispering to him, a man totally unconcerned until he saw his alibi go down the drain, and that’s when you saw the same man that S. J. saw. You saw the violence in this man and how it can strike up just in a second because you were looking at a time bomb. And you actually saw his demeanor. You saw his .attitude, and you saw just exactly how violent he could get, because if he threatened a Prosecutor, a police officer, or anything else in a court of law, what could he do when he doesn’t have the sanctity or protection of a court of law. What would he do to this girl right here? You saw it and heard it with your own eyes and ears.
“ ‘I’ll get you if it’s the last thing I do.’ Well, let me tell you something, Mr. Johnson, you may get me. You may do it just like you said, if they walk you out of here today, but I don’t think so. I don’t think so because S. J. is only five feet two and unless a 17-year-old little girl’s back is turned to you, you’re not going to come at her.
“MR. WESTERGREN: Your Honor, I object to this. It’s inflammatory. He’s talking to my client and I don’t believe it’s proper; it’s also rather juvenile.
“MR. MOBLEY: He talked to me, Your Honor, and I have a right to reply.
“COURT: Objection overruled.
“BY MB. MOBLEY, CONT’D :
“But if you get me, Mr. Johnson, in my opinion, it’s going to be a long time from now and you’re going to be an old man by the time you get out because I’m confident with the evidence that we submitted in this case that we have proved that you’re guilty of aggravated rape beyond a reasonable doubt. And I’m confident on this evidence that this jury is going to find you guilty, and they are going to take you off the streets of this County, and you’re going to be put away. And if I’m still alive, you can get me then.”

Johnson earlier had directed the following outburst towards the prosecutor:

“DEFENDANT JACK JOHNSON: He’s lying.
“MR. WESTERGREN: Your Honor, please, may we have just a moment?
“DEFENDANT JACK JOHNSON: He’s lying ever since he started the case. He’s trying to get me sent up for something I didn’t do, and I’m going to get him if it’s the last thing I do.”

Appellant contends that it is improper for the prosecutor to personally address a non-testifying defendant. The State responds that the argument was a legitimate reply to Johnson’s threat made in the course of the trial. Neither party has found a case where the prosecutor responds to a threat, made before the jury, to his life.

Attempts by a party to suppress or fabricate evidence are admissible against the accused. Rodriguez v. State, 577 S.W.2d 491 (Tex.Cr.App.1979); Baimbridge v. State, 171 Tex.Cr.R. 395, 350 S.W.2d 923 (1961). Similarly, an attempt to intimidate the prosecution would be admissible. 31A C.J.S. Evidence § 179 (1964). Had Johnson made his threat outside the courtroom, it would have been admissible and the prosecutor would have been able to comment upon that evidence during jury arguments. Thus, the general subject of the argument was proper.

Johnson does not attack the content of the argument so much as the fact that the prosecutor directed the arguments at the non-testifying appellant personally. He relies upon Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975). In Bird, we held that a prosecutor’s asking, “Where did you get it?” while looking at Bird, who had not testified, constituted a comment on Bird’s failure to testify. Johnson seeks a broad application of Bird to prohibit any comment made by a prosecutor directed at a defendant.

We do not believe Bird can be given the broad reading urged by Johnson; it stands for the much more limited proposition that directing a question at a non-testifying defendant constitutes a comment on that defendant’s failure to testify. In any event, there was no question asked in the instant case and Johnson’s outburst before the jury puts him in a different position than a truly non-testifying defendant.

We see no reason to treat Johnson’s in-court remark any different than evidence offered at the trial. The prosecutor may properly, within reason, comment on that evidence. We hold that given the serious nature of Johnson’s threat the prosecutor’s response was not such as to constitute error.

There is no reversible error. .The judgment is affirmed.