author: SUMMERS, Judge.

text:
    Pearl GRISSOM, Plaintiff-Appellee, v. MODINE MANUFACTURING COMPANY, Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Aug. 8, 1978.
    Certiorari Denied by Supreme Court May 7, 1979.
    James A. Ridley, III, Hugh W. Morgan, Knoxville, for defendant-appellant.
    Jess D. Campbell, Knoxville, for plaintiff-appellee.
   SUMMERS, Judge.

Pearl Grissom, plaintiff-appellee, sued Modine Manufacturing Company and Ro-bertshaw Controls Company in the Circuit Court of Knox County for the wrongful death of her husband, Ralph Henry Gris-som. An order of nonsuit was entered as to Robertshaw Controls Company. Modine Manufacturing Company is the defendant-appellant before this court.

This case was tried before a jury which awarded the plaintiff the sum of $185,-000.00. Defendant appealed from the verdict.

The accident of October 23, 1974, in which the plaintiff’s husband suffered his fatal burns occurred at the new vocational building of the Powell Valley High School in Claiborne County, Tennessee. Mr. Gris-som was attempting to light the pilot light of the fifth in a series of six Modine heaters in the school building. Gas which had escaped into the room exploded and burned Mr. Grissom over 95 per cent of his body. He died on October 25, 1974.

The heater Mr. Grissom was attempting to light was manufactured by the defendant at its plant in Buena Vista, Virginia, in November, 1973. Later that same month it was shipped to Cureton Plumbing and Heating Company of Knoxville. Cureton installed the six Modine heaters in the new vocational building during the late spring or early summer of 1974. Two heaters were installed in each of the three shop rooms. Cureton was the employer of Mr. Grissom at the time he was sent to the school with instructions to light the pilot lights of the heaters which had been installed.

Mr. Grissom lit the pilot lights of the first four heaters but had trouble with the fifth heater. Charles Cheek, one of the teachers at the school, testified he watched Mr. Gris-som attempt to light the fifth heater; when it didn’t light, Mr. Grissom used a wrench or pair of pliers and turned a valve on a pipe which supplied gas to the heater. Again the pilot didn’t light, and Mr. Cheek left the room at this time.

Thomas Tinnell, another teacher at the vocational school, testified that he then came into the room because the students in his classroom nearby had begun to complain of the odor of gas. He testified that they had noticed the odor for about 30 to 40 minutes. When he told Mr. Grissom this, Mr. Grissom said there was plenty of ventilation in the room and he would be through shortly.

Mr. Grissom lit another piece of cardboard to light the pilot light, and the gas in the room exploded. It started around Mr. Grissom’s head and went all around him and spread throughout the room.

Plaintiff alleged in her complaint that the defendant was liable for the injuries and death of her husband in that the heater Mr. Grissom was trying to light was in a defective condition when it was sold. Plaintiff later amended her complaint to allege that “The defective condition of the heaters, which proximately cause the decedents death, was foreign materials on the downstream side of the pilot orifice of the heater which caused the difficulties the decedent experienced in lighting the heater. . . ”

The defendant answered denying that its heater was in a defective condition and averred that the decedent lit the pilot light in a manner which caused the dangerous accumulation of propane gas in the room in which the fire occurred.

Defendant listed six assignments of error, the first of which is:

1. The Trial Court erred in overruling defendant’s motion for directed verdict or to set aside the jury’s verdict, because there was no material evidence to show the gas which burned was introduced into the atmosphere from a defect in the heater.

Lowe v. Preferred Truck Leasing, Inc., 528 S.W.2d 38 (1975), was a case dealing with injuries plaintiff received due to the alleged brake failure of the truck he was driving. The Eastern Section of the Court of Appeals said in regard to its review of jury verdicts:

This Court does not sit as a jury of three to re weigh the evidence in jury cases. Once a jury, who has the opportunity of seeing and hearing the witnesses themselves, has determined the factual issues involved in a law suit and that determination has been approved by the Trial Judge, we may only review the evidence to ascertain if there is any credible evidence upon which that determination may be predicated. If there is, then even if we believe that the trier of fact has reached an erroneous decision, we must accept it. As is well known to all who practice before the appellate courts of this state, the burden of showing that there was no credible evidence to support a jury verdict is a massively heavy one to bear.
However, this does not mean that we must passively sit by and allow patently, impossible, incoherent, or perjured testimony to support a jury verdict. The rule is that there must be some credible evidence — not merely some evidence — to support a jury verdict. That is, there must be some evidence which is capable of being believed by reasonable men, although we may not choose to believe it ourselves.

McCandless v. Oak Constructors, Inc., 546 S.W.2d 592 (1976), was a ease from the Middle Section of the Court of Appeals, in which that court referred to Lowe, supra, and said that even if the findings and the verdict of the jury are not necessarily those which that court would have reached, the court is not authorized to substitute its judgment for that of the jury where the verdict is supported by material and substantial evidence.

We agree with both cases above. In the instant case, however, we find no credible evidence on which the jury could have based its verdict that the defendant’s heater was defective and that such defect was the cause of the injuries and resulting death of the plaintiff’s husband.

Gerald Cureton of Cureton Plumbing and Heating Company, the company which contracted for all of the mechanical work at the vocational school, testified that the heaters had been installed at the school four or five months prior to the accident. He testified the heaters were tested when they were hung and there were no problems with them as far as he knew.

Under cross examination Mr. Cureton said the following concerning Mr. Grissom’s qualifications as an employee:

Ralph Grissom was an exceptionally good mechanic. He was a craftsman in the trade, and known to be. He was an exceptionally good repairman, or what we call a refrigeration man. He handled HDAC type problems, which is hard to come by. They’re scarce as hen’s teeth. He was also an expert on oil and gas burners, as good as anybody, as good as there is in the industry.

James E. Geiger, a consulting engineer, testified that he supervised the moving of the heater in question to his office several days after the accident. He found nothing wrong with the electrical apparatus on the heater when he tested it. He stated he was present when Charles Kock, a chemical engineer hired by the defendant to test the heater, lit the pilot light of the heater and then the main burner. Mr. Geiger testified the heater was in his possession in his garage until it was taken away to be tested by Dr. Harvey Joe Wilkerson, the expert witness of the plaintiff.

Mr. Kock testified that he examined the building where the accident occurred and then tested the heater. This was done on November 7 and 8, 1974, several weeks after Mr. Grissom was burned. He said the heater was set up and gas was supplied to it. The lines were bled a little so that gas would be at the pilot light. The pilot light was lit and the heater was operating in a normal manner. The pilot light was extinguished and relit again. Mr. Kock found the heater to be in proper working order and found nothing wrong with the heater.

Dr. Harvey Joe Wilkerson, the plaintiffs’ expert, testified that he picked up the heater on October 16, 1976, from Mr. Geiger’s place of business. He said he ran a leak test on it and found no abnormal leakages. He attempted to light the pilot light more than fifteen times; he could light it but it would not continue to burn as the pilot light would go out. This testing was done on October 20, 1976.

On November 8, 1976, Dr. Wilkerson again checked the pilot light operation, but was unsuccessful in getting it to function properly. On November 20, 1976, with representatives of all parties present, Dr. Wilkerson again tried unsuccessfully to light the pilot light. On this date it did not light at all. After this he disconnected the pilot gas supply line, and by blowing on it was able to clear the line sufficiently so the pilot would light. The pilot would then light, but as before went out when it was switched to the “on” position. Dr. Wilkerson then disassembled the line leading from the flow control valve to the pilot light and also the pilot orifice which is located in this area. He found particles on the downstream side of the lines and it appeared that the particles were plugging the two orifice holes. Some of the particles were magnetic and some were not. Dr. Wilkerson said he found no particles on the upstream side. It was Dr. Wilkerson’s opinion that the particles were present before the gas supply came through the lines. It was also his opinion that the particles were present in the heater when the heater left the manufacturer approximately three years before he made these tests.

Mr. Ray Qualley then cleaned the orifice at the request of Dr. Wilkerson. Mr. Qual-ley wiped it and blew through it which was the main method of cleaning it. The heater was then put back together and operated satisfactorily.

After these tests were made by Dr. Wilkerson in Knoxville, he went in February, 1977, to the defendant’s plant in Virginia where the heater was manufactured and assembled. He observed that the work table at which the orifices for propane gas were assembled had numerous metal particles on the table and in the entire area. Dr. Wilkerson was asked if the particles found at defendant’s plant where the pilot orifice subassembly is done were of the same type as he had found within the heater with which we are concerned in this case. He replied: “There were similarities in the particles. I can’t say that they were exactly the same particles, but there were similarities in the particles.” It was his belief that the particles found in the orifice of the pilot light were present in the heater when it left the hands of the defendant.

Dr. Wilkerson’s opinion as to what caused the fire which ultimately killed Mr. Grissom was: “There was a ... as the witnesses that were present described it, there was a considerable amount of gas in the area around the heater. This was not a very small . . . this was not a minute quantity of gas, this was enough gas that it enveloped Mr. Grissom, and in my opinion that gas resulted from Mr. Grissom’s effort to light the pilot, and probably his bleeding of the lines to insure that the lines that were supplying the propane gas were purged of air, and that propane was being supplied.”

Under cross examination by defendant’s counsel, Dr. Wilkerson testified that he was called into the case almost two years after the accident and picked up the heater at Mr. Geiger’s garage. The garage was not completely enclosed nor was it kept locked. The heater was stored with other equipment and without a protective covering around it.

Dr. Wilkerson was asked by defendant’s counsel: “Now, do I understand your assumption would be that the quantity of gas that was present in this room got there by Mr. Grissom opening the main service line, a line that’s not a part of Modine’s heater?” Dr. Wilkerson answered: “My evaluation of the information provided me by the statements of the witnesses and the pictures, leads me to the conclusion that there was more gas available for combustion around this heater that would have been provided by bleeding it through the pilot line intact. Now, it is possible if one disconnects this line, it has this opening here, and depresses the valve sufficiently long to bleed in a quantity of gas, but in the normal gas supply line, if all lines were intact, my opinion is there was too much gas in the area to have either been ... to have come into the area by the pilot mechanism connected properly.” To the question that he really didn’t know how the gas got in the room, he replied, “No, I do not.”

In Kerley v. Stanley Works, 553 S.W.2d 80 (Tenn.App.1977), a workman was electrocuted while using an electric drill, and the widow sued, among others, the manufacturer alleging a defect in the drill. After the accident an examination of the drill revealed a ground wire in the drill cord was broken. However, the court found no proof on how it was broken or that it was broken at the time it left the manufacturer. Although it is clear that our Tennessee courts have adopted the doctrine of strict liability upon manufacturers as set out in 2 Restatement (2d) Torts, # 402A, Kerley quoted Ford Motor Company v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966), where it was said:

It should be noted that the above section requires the plaintiff to establish that the product, when it left the hands of the manufacturer or other supplier, was at that time in both a defective and an unreasonably dangerous condition.

In the case at bar the only condition even resembling a defect in the heater that was found by the plaintiff was minute metallic and nonmetallic particles in the pilot light orifice. But as there was no gas escaping from the pilot light orifice, this could not have caused the escape of gas which caused the fatal accident.

Even if the particles found in the pilot light orifice could have been proven to have caused the accident, we find no proof that the particles were placed in there when the heater was manufactured and put together at the defendant’s plant.

When the plaintiff’s expert took the heater apart and found the particles, two years had elapsed since the accident and three years since the heater had left the defendant’s plant. In the two years since the accident, the heater had been stored in a room that was not fully enclosed and with other machinery.

This court is of the opinion that there was no material credible evidence for the jury to base its verdict for the plaintiff. We find no proof that the heater was defective; that the particles in the heater, if they were there at the time of the accident, caused the explosion; that the particles found two years after the accident by plaintiff’s expert were in the pilot light orifice when the heater left the plant, three years prior to the test.

Therefore, the judgment of the lower court is reversed and dismissed. The costs in the cause are adjudged against the plaintiff.

PARROTT, P. J., and GODDARD, J., concur.


source: Caselaw Access Project

author: TODD, Judge.

license: Public Domain

text:
    FIRST AMERICAN NATIONAL BANK OF NASHVILLE, Plaintiff-Cross-Defendant-Appellee, v. Larry L. HUNTER, Defendant-Cross-Plaintiff-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 1, 1978.
    Certiorari Denied by Supreme Court May 7, 1979.

      Charles K. Wray and James Berry, Jr., Nashville, for plaintiff-cross-defendant-ap-pellee.
    Oliver B. Dickins, Jr., Atlanta, Ga., W. Henry Haile, Nashville, Wm. Wilkinson, Ashland City, for defendant-cross-plaintiff-appellant.
   OPINION

TODD, Judge.

The defendant-cross plaintiff, Larry L. Hunter, has filed a limited appeal from that part of the Chancellor’s decree which declines to certify cross-plaintiff’s counterclaim as a class action.

Plaintiff sued to collect a $6,250.79 note dated October 16, 1974, due 30 days from date. The note provided for interest of 9¾ % per annum in advance. Interest of $50.79 was deducted in advance, and the borrower received $6,200.00 proceeds of the loan. The advance interest was computed on the basis of 3%6o (V12) of the annual charge of 9¾% of $6,250.79.

The defendant filed two defenses:

(1) That the method of computing the amount of advance interest was a “breach of contract” in that the charge should have been S0/365 of the annual interest.
(2) That the transaction was usurious.

On November 15, 1976, the Chancellor entered a decree allowing defendant a credit of seventy cents (.70) reducing the principal amount to $6,250.09 for which judgment was rendered together with interest and attorneys fees. The defense of usury was disallowed.

There is no appeal from the foregoing action of the Chancellor. Thereafter, on February 14, 1978, after much pleading, responding, interrogating, deposing and motion-making by the parties, the Chancellor entered a final decree “that this case may not be maintained as a class action” and reiterating the previous judgment in favor of plaintiff.

The opening sentence of appellant’s preliminary statement of issues is:

“This is a limited appeal from the Chancellor’s refusal to certify a class action.”
The assignments of error are as follows:
“1. The Chancellor erred in holding that Hunter was not a member of the class.
2. The Chancellor erred in concluding that extrinsic evidence is admissible to modify the meaning of an unambiguous contract.”

The motion for certification reads in pertinent part as follows:

“ . . . the counterplaintiff moves the court to certify the present case as a class action, with classes defined as follows:
1. As to the claim sounding in breach of contract :
a. The class consists of all of FANB’s borrowers of commercial loans who executed promissory notes on or after January 1, 1970 and before October 1, 1975 (for secured loans) or before March 1, 1976 (for unsecured loans).
b. Notwithstanding par. l.a., there shall be excluded from the class:
A. Any borrowers who FANB show that the promissory note did not provide for interest at “_% per annum” (or some equivalent phrase); or
B. Borrowers who have been sued in separate legal proceedings (in connection with the promissory note) by FANB; or
C. Borrowers who, though they have not been sued by FANB, are in default on a note presently in the possession of FANB.
2. As to the claim sounding in usury: The class consists of all members of the class defined in par. 1 for the breach-of-contract claim who executed their promissory note on or after September 5, 1973.
Alternatively, the counterplaintiff moves the court to certify the present case as a class action, defining the classes in a manner the court deems appropriate to achieve justice.”

The memorandum of the Chancellor reads in pertinent part as follows:

“At the outset, it appears to the Court that the defendant-counter-claimant is seeking to represent the class of which he is not a member. The definition of the class excludes those who have been sued by the Bank and those who are in default on their promissory notes. The defendant-counter-claimant fits into both of those categories. For that reason, the Court is of the opinion that Hunter cannot represent the class for which certification is sought. The same reasoning applies to the claim for usury. The Court has previously found that the Bank’s custom of calculating interest on a 360-day year did not result in usurious interest being paid in this case. Therefore, the party seeking to represent the class does not fit the class description.
In addition to the above reason, and perhaps more importantly, the Court finds that the typicality requirement of Rule 23.01(3) and the requirement in 23.-02(3) that the common questions of law and fact predominate over questions affecting individual members are not supported by the proof in the record in this cause.
The Court granted relief to the defendant-counter-claimant on the basis of a breach of contract resulting from the Bank’s calculation of interest on the basis of a 360-day year. In order to determine that the members of the class are entitled to recover damages for breach of contract the circumstances surrounding the execution of the note in each individual case would have to be examined. It appears from the record that some borrowers were aware of the Bank’s custom and acquiesced in the practice of computing interest on a 360-day year. In addition knowledge of the practice and acquiescence might also be inferred from other documents which were executed as a part of the transaction. See Chern v. Bank of America, 15 Cal.3d 866 [127 Cal.Rptr. 110], 544 P.2d 1310 (1976). In the instant case a close question was presented because of the existence of documents including disclosure statements from which individual knowledge and acquiescence might be shown. The existence of such documents, or other evidence, from which knowledge and acquiescence might be shown would have to be examined in each individual case. Therefore, the Court concludes that this is not a proper case for a class certification.”

It is obvious that appellant cannot represent a class based upon a right of action or defense of usury, because his claim of usury has been disallowed, there has been no appeal from the disallowance, and same has become final.

Appellant’s right to represent a class may be based solely upon the seventy cent credit allowed him for overcharge in interest.

The Chancellor’s observation (that appellant cannot represent a class who have not been sued because he has been sued) is, perhaps, a bit narrow. If applied literally, there could be no class actions.

On the other hand, appellant was, perhaps, inexact or imprecise in designating a class which had not been sued instead of a class consisting of himself (sued) and all others who had not been sued.

By the very nature of a class action, there must be one number of the class before the court as a party seeking to obtain the join-der of others not yet before the court.

Nevertheless the portion of the Chancellor’s memorandum just mentioned does not affect the result reached by him, for his other reasoning is well founded and justifies his conclusion.

The Chancellor was correct in observing the distinction between appellant’s position (in default) and the position of the proposed class (not in default).

The record contains affidavits of borrowers from plaintiff bank that they understood and acquiesced in the practice of the bank in basing interest charges on a 360-day year instead of a 365-day year. There are also affidavits of bank officers as to the bank’s method of handling loan transactions with its customers and the execution of “disclosure statements” wherein the exact amount of interest charges was stated.

The gravamen of appellant’s argument is that the Chancellor erred in holding that it would be proper to consider evidence other than the note executed by such member. It is argued by appellant that the expression, “interest at_% per annum” in plaintiff’s note form is plain and unambiguous, hence cannot be altered or varied by other communications between the parties, whether by business practice, acquiescence, or express verbal or written understanding.

Appellant argues that the words, “per annum” can have but one meaning, that is, a time span of 365 days.

In 86 C.J.S. Time § 9, pp. 832, 833, is found the following text:

“The word “year” is broadly defined as meaning a period of time, and it is more specifically defined as the period in which the revolution of the earth around the sun, and the accompanying changes in the order of nature, are completed; a determinate and a well-known period consisting commonly of three hundred and sixty-five days; a period of three hundred and sixty-five calendar days, and in leap years three hundred and sixty-six; a period of twelve months; twelve calendar months; and, indeed, a year, twelve months, fifty-two weeks, and three hundred and sixty-five days, all denote the same total period of time.”

It is readily seen from the varied decisions supporting the above text that the meaning of the word “year” is established in broad, general terms, but is not so thoroughly established as to minute detail.

The calendar now generally accepted in Western Civilization is the Gregorian Calendar which allots 365 days to ordinary years, but 366 days to “Leap Years” which are the years whose numbers are divisible by four (4) except the centesimal years which are not leap years unless their number is divisible by 400.

For example, the years 1200 and 1600 were leap years, but the intervening centes-imal years 1300, 1400 and 1500 were not leap years because they were not divisible by 400.

Thus, according to our present calendar, in each 400 year period, there are 303 ordinary years of 365 days each and 97 leap years of 366 days each.

It is also generally recognized that a true year represents the period required for the earth to complete an orbit around the sun, and that this period does not change from year to year. That is, the occurrence of leap years is arranged in the calendar to compensate for the fact that the time of the earth’s orbit around the sun is not exactly 365 days, nor 366 days. By simple mathematical computation, it can be (and has been) determined that the Gregorian Calendar recognizes that a true year is composed of 365.2425 days.

The foregoing illustrates the fact that the words “per annum” are not necessarily unambiguous so as to preclude other evidence in explanation.

The phrase, “interest at -.% per an-num” does unequivocally indicate that _% of the principal shall constitute the interest charge for a year, but the phrase does not indicate the exact manner in which interest shall be computed for less than a year, that is, whether interest for 30 days shall be 30/360, 30/365, 30/365.2425 or 30/366 (in a leap year) or some other fraction of the annual charge. This uncertainty of detail (latent ambiguity) must be resolved by inquiry regarding the actual intent of the parties as to the meaning of the words used by them. For such purpose, any statements, acts or writings of the parties and any business custom known to them may be considered to the extent that it reflects upon the mutual intent of the parties at the time of making of the contract as to the meaning of the word or phrase used by them in their contract. Springfield Tobacco Redryers Corp. v. City of Springfield, 41 Tenn.App. 254, 293 S.W.2d 189 (1956); Frierson v. International Agriculture Corp., 24 Tenn.App. 616, 148 S.W.2d 27 (1940); McDowell v. Rambo, 21 Tenn.App. 448, 111 S.W.2d 892 (1937); 17-A C.J.S. Contracts § 597a, b, p. 1163 et seq.

Authorities cited by appellant merely state the general rule and do not contradict the principle just expressed.

Moreover, it is well settled that a collateral agreement may be enforceable as constituting part of the consideration or inducement of the principal agreement. For example, there is no reason why a borrower could not induce the bank to make his loan by agreeing that interest be computed upon a 360-day year. See authorities annotated in 9 Tenn.Dig., Evidence, ‘§=>441-444.

Appellant next insists that his claim is identical in all respects to that of the members of the proposed class.

The record contains affidavits of bank customers that they understood and assented to the practice of using a 360-day year for convenience in computation. There are also affidavits of bank officials as to course of dealings with customers and the variety of complications to be encountered in attempting to assemble and relate facts regarding all members of the class. There is also evidence that bank customers regularly executed a separate instrument acknowledging the disclosure of the exact amount of interest to be charged.

In Bennett v. Stutts, Tenn.1975, 521 S.W.2d 575, the Supreme Court stated that Rule 23 of the Rules of Civil Procedure did not create rights but regulated procedure. From this, it is dedueible that the prosecution of a class action is not a matter of right which may be demanded. It is, more accurately, a procedural privilege to be utilized within the sound discretion of the Trial Judge. It has, however, been held that the unreasonable denial of the privilege may be reversible error.

In Kansas City, Mo. v. Williams, C.A.8 1953, 205 F.2d 47, cert. den. 346 U.S. 826, 74 S.Ct. 45, 98 L.Ed. 351, it was held that the trial court has some measure of discretion as to whether a class adjudication can serve any useful purpose in a particular situation.

To the same general effect is Pacific Fire Ins. Co. v. Reiner, D.C.La.1942, 45 F.Supp. 703.

Appellant cites authorities wherein certification of class actions was upheld. However, none deal with a question similar to that involved in the present case, that is, none deals with a contract provision the practical implementation of which was a matter of mutual understanding, practice, or separate agreement as in the present case.

Appellant cites no authority wherein the trial court was reversed for refusal to certify a class.

From a consideration of all of the circumstances, this Court has concluded that the Chancellor’s refusal to certify the proposed class was within the range of his discretion and was not error.

This conclusion is reinforced by the obvious fact that the claims of all borrowers who have not yet paid their loan would represent an off-set against the claim of the bank, in which event, both the claim for payment of the loan and the claimed credit or off-set ought to be determined in the same action.

The decree of the Chancellor is affirmed. Costs of this appeal are taxed against appellant.

Affirmed.

DROWOTA and LEWIS, JJ., concur.


author:
ODOM, Judge. DALLY, Judge, TOM G. DAVIS, Judge.
      ROBERTS, Judge,
      DALLY, Judge, ODOM, Judge, CLINTON, Judge,

text:
    Darrell Wayne WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 56810.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.
    On Rehearing May 23, 1979.
    Roberts and Dally, JJ., filed concurring opinions on State’s motion for rehearing.
    Odom and Clinton, JJ., filed dissenting opinions on State’s motion for rehearing.

      Walter J. Pink, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Robert A. Moen, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for rape of a child; punishment was assessed by the jury at ten years.

In his third ground of error appellant contends the trial court committed reversible error by refusing his requested charge on the defensive issue of mistaken identification. The State argues the issue was not preserved at trial and the evidence did not raise the issue.

Although the requested charge submitted by appellant was no model, we conclude it was sufficient to call the court’s attention to the issue he sought to have submitted. It began:

“You are instructed that the State has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of his statement. However, you, the jury must be satisfied beyond a reasonable doubt of the accuracy of the identification of the Defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the Defendant is the person who committed the crime, you must find the Defendant not guilty.”

Although other portions of the lengthy requested instruction would have been improper comments on the weight of the evidence had the court included them in the charge, the part quoted here was sufficient to put the court on notice of appellant’s request, and to preserve the issue for review. See Sledge v. State, Tex.Cr.App., 507 S.W.2d 726; Art. 36.15, V.A.C.C.P.

We must therefore decide whether it was error to deny appellant a jury charge on mistaken identification. The offense was committed on December 1, 1975. Richard Bennett testified that on December 26 he, appellant, and two other persons were displayed before the complaining witness for possible identification as one of the three persons who had raped her, and that she said neither appellant nor either of the others had committed the rape. Although this testimony was contradicted by the State’s evidence, the issue before this Court is not the truth or falsity of the defensive evidence. The issue on appeal is whether that evidence raised the defensive issue of mistaken identification.

In Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166, Presiding Judge Davidson wrote for the Court:

“It has been, as before stated, the universal rule in Texas to hold that wherever a defensive matter is set up, and supported by facts, the accused is entitled to an affirmative charge on that defensive matter. The law is not satisfied with a negative presentation, and it has been held directly that where there is evidence that another, or others, may have committed the crime, and not the accused, the court must submit this issue to the jury, [citations omitted].”

This rule applies as well to the defensive issue of mistaken identity. In Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573, the Court approved the affirmative submission of an identity charge:

“On identification of the accused, the court gave the usual charge that the jury must believe beyond a reasonable doubt that on a date named the accused committed the offense of rape upon prosecu-trix. In addition, he gave a special charge asked by appellant, to the effect that the burden was on the state to prove beyond a reasonable doubt the identity of the defendant as the party who committed the crime, and that unless they so found beyond a reasonable doubt they should acquit.”

Although some cases indicate that the defensive issue of mistaken identification can be raised by evidence that someone other than the accused committed the offense, e. g. Florio v. State, Tex.Cr.App., 532 S.W .2d 614, that does not mean such evidence is the only way to raise the issue. We hold the defensive issue of mistaken identification is also raised by evidence that someone other than the accused had been identified as the perpetrator of the crime or by evidence that the identifying witness had on a prior occasion failed to identify the accused when given an opportunity to do so. In this case such evidence was presented, and the failure of the trial court to submit an affirmative jury charge on this defensive issue when requested to do so by appellant presents reversible error.

The judgment is reversed and the cause remanded.

DALLY, Judge,

dissenting.

The complainant, who was five feet four inches tall and a ninth grade student on December 1, 1975, the day the offense was committed, lived with her mother and sisters at Clayton Homes in Houston.

The appellant and two others assaulted the complainant, carried her, while she was fighting and screaming, to an area near some warehouses and box cars. All three raped the complainant, who said she had a good opportunity to see the appellant’s face while he was on top of her. She had never before seen the appellant and did not know his name.

About one week after she was raped the complainant was shown photographs of five people. She identified a photograph of the appellant as one of the three rapists. Later, police officers on two occasions had her view a lineup at the Clayton Homes office. She did not identify anyone in either lineup. She testified she had never misidentified anyone as one of the rapists and she had never told anyone that someone other than the appellant or one of his companions had raped her.

The appellant testified that he did not rape the complainant and that he spent the day on December 1 in a gymnasium playing basketball with his friend Richard Bennett. The appellant also said he had appeared in a police lineup and the complainant failed to identify him. Richard Bennett testified that he had been at the gymnasium with appellant at the time of the rape. Bennett also testified that he had been in a police lineup with the appellant and that the complainant failed to identify the appellant as one of the rapists.

It would not be proper to instruct the jurors to acquit the appellant if they found that the complainant had failed to identify appellant in the police lineup; therefore, misidentification is not an affirmative defense. In Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974), this Court, in rejecting the contention that the trial court erred in failing to grant the defendant’s instruction on misidentification, stated:

“The court’s charge affirmatively required the jury to find beyond a reasonable doubt that appellant committed the offense before he could be convicted. The jury was further instructed that if it had a reasonable doubt as to the appellant’s guilt it should acquit. The court did not err in failing to instruct the jury as requested by appellant.”

In the instant case, just as in Ward, the charge affirmatively required the jury to find beyond a reasonable doubt that the appellant committed the offense before he could be convicted and that if the jury had a reasonable doubt as to appellant’s guilt it should acquit him. Although the appellant argues that his testimony and that of his friend raised the issue of misidentification for the jury’s consideration, this evidence would not require a submission on the issue of identity. The appellant’s rights were adequately protected as to any issue raised regarding identity by the court’s charge, and the trial court did not err in failing to instruct the jury as requested by the appellant. In Laws v. State, 549 S.W.2d 738 (Tex.Cr.App.1977), a case not mentioned by the majority, we recently rejected a defendant’s contention that he was entitled to a charge on misidentification because it would improperly single out evidence for the jury’s consideration.

Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166 (1909), cited by the majority, is not apposite because there, if found to be true by the jury, the defensive matter was an affirmative defense that would require that the defendant be acquitted. That the complainant in the instant case may have failed to identify the appellant in one lineup would not require the jury to acquit the appellant; it was not an affirmative defense.

Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573 (1926), cited by the majority, is not a case in which the Court held that it was necessary to submit a charge on misidentifi-cation. The Court there merely observed that the trial court had submitted such a charge. The majority cites no case that has ever required that a charge on identity be submitted to the jury. Such a charge would be in the nature of a special issue— criminal cases are submitted on a general charge. Moreover, any such charge would constitute a comment on the weight of the evidence. The majority fails to advise the bench and bar how such a charge could be worded so as not to constitute a comment on the weight of the evidence. The most important reason why such a charge is unnecessary is because mistaken identity is not an affirmative defense.

The majority is clearly wrong; I dissent to the reversal of the judgment.

Before the Court En Banc.

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for rape of a child. V.T.C.A. Penal Code, Sec. 21.09. Punishment was assessed by the jury at 10 years.

Appellant does not challenge the sufficiency of the evidence to support his conviction. We will review the evidence only as necessary to the disposition of appellant’s grounds of error.

Appellant contends that the trial court erred in failing to charge the jury on the issue of mistaken identity. Appellant timely requested such a charge in writing.

Evidence was offered by the appellant that appellant and two other persons were displayed before the complaining witness for possible identification as one of the three persons who had raped her and that she said neither appellant nor either of the others had committed the rape. This evidence was contradicted by testimony offered by the State. The opinion by the panel in this cause held that a defensive issue of mistaken identification was raised and that the trial court erred in failing “to submit an affirmative jury charge on this defensive issue” in light of appellant’s request for such an issue.

On the same day that the opinion in this cause was handed down, another panel handed down an opinion in Waller v. State, 581 S.W.2d 483 (1979), in which the defendant’s contention that the trial court erred in refusing to give his requested instruction on misidentification was rejected. After noting that the issue of misidentification was not raised by the evidence, it was stated:

“Even assuming an issue had been raised, it would have been error for the trial court to single out the fact concerning Anderson’s identification of appellant and magnify them before the jury. This would constitute a comment on the weight of the evidence. See Laws v. State, 549 S.W.2d 738 (Tex.Cr.App.1977), Art. 36.14, V.A.C.C.P., and the cases there cited under Note 743. Moreover, mis-identification is not an affirmative defense, and the appellant was adequately protected by the requirement that the jury find beyond a reasonable doubt that appellant committed the offense.”

In the recent cases of Jones v. State, 566 S.W.2d 628, and Guzman v. State, 567 S.W.2d 188, we find holdings of this Court which appear to be contrary to the holding in the instant case. A complaint that the trial court erred in failing to charge on mistaken identity was rejected in Jones. There it was held:

“The court’s charge to the jury on the burden and standard of proof, the presumption of innocence, and the law of alibi, substantially incorporated his requested instructions. Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977). The charge, when considered as a whole, adequately protected his rights. Article 36.-19, Vernon’s Ann.C.C.P. Pittman v. State, 554 S.W.2d 190 (Tex.Cr.App.1977).”

In Guzman, a like contention was rejected, the Court finding no error in light of the court’s instruction to the jury that it must believe beyond a reasonable doubt that the defendant committed the offense before finding him guilty.

In Laws v. State, 549 S.W.2d 738, this Court, in rejecting the defendant’s complaint that the court refused to charge on mistaken identification, found that, the court had instructed the jurors that they had to believe defendant guilty beyond a reasonable doubt. In Laws, it was further noted that it would have been improper for the court to submit such an instruction “because it would have been singling out particular parts of the testimony.”

In the somewhat earlier case of Ward v. State, 505 S.W.2d 832, this Court, after finding that there was no evidence to raise the issue of mistaken identity, went on to say:

“The court’s charge affirmatively required the jury to find beyond a reasonable doubt that appellant committed the offense before he could be convicted. The jury was further instructed that if it had a reasonable doubt as to appellant’s guilt it should acquit. The court did not err in failing to instruct the jury as requested by appellant.”

In the instant case the court instructed the jury on the presumption of innocence, the requirement that the jury must find beyond a reasonable doubt that appellant committed the offense, and “Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.” In addition, the court in the instant case charged on the law of alibi. We find that the charge adequately protected appellant’s rights and the court did not err in refusing the requested charge on mistaken identity.

Further, the fact that the complaining witness failed to identify appellant on one occasion goes only to the weight to be given the identification evidence. It does not give rise to an affirmative defense which would require that the appellant be acquitted.

Appellant next contends that the trial court erred in denying his right of confrontation by admitting expert testimony based on the conclusion of another medical expert. The testimony complained of was that of Dr. Anton Broms.

Dr. Broms testified that he conducted an examination of the victim on the night of the offense. Dr. Broms was unable to recall any specifics of the examination until he refreshed his memory from medical records made at the time of the examination.

The records reflected that Dr. Broms, a specialist in gynecology, had been called in to examine the victim by another treating physician. Broms stated that he had examined the victim in conjunction with this other physician. Although the report contained information in the handwriting of other persons, the witness stated that his signature would indicate that his examination of the victim had confirmed the existence of those conditions.

Appellant has failed to show that Dr. Broms testified to any fact that he did not actually observe. The record does not lend factual support to appellant’s contention. No error is shown.

Appellant contends that the prosecutor failed to timely disclose material evidence favorable to the appellant. Under this ground of error, appellant urges error in that:

“the prosecutor failed and refused to subpoena Robert Gonzalez and gave no account as to his whereabouts. This witness would have shed light on whether or not the complainant was raped by three young Blacks and whether the defendant was the rapist. The prosecutor refused to produce that part of the offense report written by officer Coleman in which officer Martin stated that the complainant told him that M_J_ was the boy that raped her. The prosecutor further failed to subpoena officer MeCafferty, officer Martin, and officer Coleman. The prosecutor, further, failed to subpoena the [sic] Dr. Walker, who made the medical examination as to the wet mount sperm.
“The state failed to subpoena officer Martin and failed to subpoena the officer that wrote down officer Martin’s report. When Defendant subpoenaed officer Martin, the state intentionally suppressed that part of the offense report in which officer Martin held a lineup on the 26th of December, 1975, with the defendant and three other Blacks, and the complainant was unable to make any identification. In failing to produce this portion of the offense report, the prosecutor presented the false picture that when the complainant went to the lineup on December 26, 1975 the Defendant and M_J_were not there.”

A ground of error complaining of numerous alleged errors is multifarious and does not comply with Art. 40.09, Sec. 9, Y.A.C.C.P. See, Morgan v. State, Tex.Cr.App., 545 S.W.2d 811; Rodriguez v. State, Tex.Cr. App., 530 S.W.2d 944.

Moreover, we note that Martin and McCafferty testified at trial and that the State introduced evidence that it was unable to locate Robert Gonzalez despite efforts to do so. We further find that the record reflects no factual basis to support appellant’s contention that the State withheld any information favorable to him.

Appellant contends that the trial court erred in allowing the prosecutor to argue facts not in evidence and to refer to the demands of the community for a particular punishment. These arguments occurred during the punishment stage of the trial.

Although appellant objected to the prosecutor's argument that he maintains was outside the record, no ruling on that objection was secured. No error is preserved for review, Moffett v. State, Tex.Cr. App., 555 S.W.2d 437; Cain v. State, Tex. Cr.App., 549 S.W.2d 707.

The second argument complained of was as follows:

“Is that what our probation laws were meant for? That a person who would rape a child, would come down here— forcibly rape, where her vagina is lacerated—and get probation? Surely that’s not the case. I mean, it can’t be. It can’t be as long as I stand here in front of people like yourselves. It just can’t be the case. I’m sure that I don’t live in a community where people feel like that either.”

A jury argument that refers to the expectations or demands of the community for a particular result is error. Bothwell v. State, Tex.Cr.App., 500 S.W.2d 128; Crawford v. State, Tex.Cr.App., 511 S.W.2d 14. The jury argument in the present case does not set forth what result the community demands or expects in this case. See Crawford v. State, supra. No error is shown.

Appellant finally contends that the “trial court’s actions throughout the trial constituted reversible error. . . . ” Appellant points to the trial court’s rulings on four of his objections as follows:

‘Q. Now, when I saw Clayton Homes, it’s not really a subdivision; that’s an apartment project, isn’t it?
“MR. PINK [defense counsel]: I would object to the Prosecutor leading his witness, getting her to say yes.
“MR. MOEN [prosecutor]: Judge, may I have the legal objection from the man rather than making a Jury argument?
“There’s a proper time for it and now is not the time.
“THE COURT: Overruled. Go ahead. * * * * * *
‘Q. Okay, and I think I told you, did I not, yesterday to describe—
“MR. PINK: Your Honor, I would object to any testimony or anything that he told her yesterday. It’s not proper as to what he told her yesterday. It’s not a proper question.
“MR. MOEN: I don’t believe that’s a legal objection, Your Honor.
“THE COURT: Sustained — I mean, overruled. But, don’t repeat the testimony.
‘Q. (By Mr. Moen) And did I not tell you that when you started talking about the male sex organs to refer to that as the penis?
‘A. Yes, sir.
‘Q. Okay.
“MR. PINK: Your Honor, again, I would like to object to the State continuously testifying and leading the witness.
“THE COURT: All right, overruled.
“MR. PINK: Note my exception. * * * * * *
‘Q. Now, I think I told you yesterday I was going to have to ask you some foolish questions, did I not?
‘A. Yes, sir.
‘Q. Okay, listen to what I have to say. “MR. PINK: Again, I would object to this kind of leading question as to the way the D.A. is phrasing this.
It’s not proper. He’s testifying again.
“MR. MOEN: If I may, could we have Mr. Pink make a legal objection rather than a Jury argument? “THE COURT: Overruled. * * * * * *
“Q. Did anyone ever try to stuff anything in your mouth?
“A. Yes.
“MR. PINK: That’s leading. We object to leading questions.
“THE COURT: Overruled. ******
“Q. Did he stick around a little bit while the smallest one was raping you?
“A. Yes, just a little while.
“MR. PINK: Your Honor, if it please the Court, State is continuing to lead the witness, and we would ask the Court to ask the State—
“THE COURT: Just make an objection, if you will, and give a legal reason that’s sufficient. You object to the question?
“MR. PINK: Because it’s leading.
“THE COURT: Overruled.
“MR. PINK: Note my exception.”

Appellant maintains that the trial court’s actions in ruling on these objections were “prejudicial responses.”

This ground of error is multifarious and fails to comply with Art. 40.09, Sec. 9, supra. See Love v. State, Tex.Cr.App., 533 S.W.2d 6.

Further, we decline to hold that the manner of the court’s ruling on appellant’s objections constituted reversible error. The instances cited do not reflect an opinion of guilt on the part of the court. See Zima v. State, Tex.Cr.App., 553 S.W.2d 378. While an accused may complain of an erroneous ruling made as the result of prejudice, it would be the error in the ruling rather than the prejudice that would give him the right to complain. Bolding v. State, Tex.Cr.App., 493 S.W.2d 181; Vera v. State, Tex.Cr.App., 547 S.W.2d 283. No error is shown.

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

ROBERTS, Judge,

concurring.

I concur in the majority’s holding that the appellant was not entitled to an affirmative instruction on the issue of mistaken identity. However, I would so hold because the rule that an accused is entitled to an affirmative submission of every defensive issue raised by the evidence should not be applied under the facts of the present case.

A defensive issue is one that is exculpatory in nature and, if resolved in favor of the defendant, would entitle him to an acquittal. V.T.C.A., Penal Code, Section 2.03. Although mistaken identity may, in some instances, constitute a defensive issue, it is not such an issue in the present case.

In every criminal trial, there are a host of controverted issues and subissues which, if resolved in favor of the defendant, tend to create a reasonable doubt of guilt. Each element of a given offense has a potential for controversy and creation of doubt, yet we do not require a special charge on such issues as culpable mental state, consent, ownership, et cetera, when these issues are controverted by the defendant. Such issues are properly proven as part of the State’s main case. Only when evidence has been introduced which, if standing alone, would entitle him to an acquittal is it incumbent upon the court to submit an affirmative charge to the jury on such a defensive issue when it is properly requested by the defendant.

The State must always establish the identity of the accused as an element of its case in chief. The State’s evidence on this element may be rebutted by the defendant with evidence that the State’s identification witness previously failed to identify the defendant when given the opportunity to do so or that the State’s witness previously identified someone other than the defendant as the perpetrator of the offense. But rebuttal evidence of this nature affects the witness’s credibility and the weight to be given his testimony and in no wise casts upon the State an additional burden of proof to disprove this rebuttal evidence beyond a reasonable doubt.

A different situation is presented when the defendant seeks to raise the issue of mistaken identification by introducing evidence that someone else committed the offense in question. In such a case, once a defendant meets his production-of-evidence burden, the State would be obliged to disprove this issue beyond a reasonable doubt. Section 2.03, supra; Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166 (1909). By such evidence, a true defensive issue is presented by the defendant because a favorable jury finding would entitle him to an acquittal. Thus, when the issue of mistaken identity is raised in this manner, the defendant is entitled to have it affirmatively submitted by instruction to the jury. And a charge on the defense of alibi will not suffice because it does not fully cover the proposition that a person other than the defendant committed the offense. Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848 (1940) (Motion for Rehearing).

In Wheeler v. State, supra, one of the-defenses advanced by the defendant was that Powledge and not the defendant had committed the offense of murder as alleged. The court charged upon circumstantial evidence and alibi, but did not affirmatively instruct the jury pursuant to his properly requested charge that if the jury found that another party committed the homicide, or if there was a reasonable doubt of this, the jury should acquit him. This Court held that it was reversible error for the trial court to have refused the defendant’s properly requested charge on this defensive issue of mistaken identity.

In the case before us, the appellant attempted to rebut the State’s evidence on the identity issue by introducing evidence that the prosecutrix had previously failed to identify him as her assailant. In light of the foregoing observations, I cannot say that the appellant was entitled to an affirmative charge on mistaken identity because, under the facts of this case, no defensive issue on mistaken identity was presented.

For the reasons stated, I concur.

DALLY, Judge,

concurring.

I am in complete agreement with the majority Opinion on State’s Motion for Rehearing. I also rely on my dissenting opinion on original submission. However, points raised in the dissenting Opinions on State’s Motion for Rehearing deserve further comment.

First, in “distilling” the model instruction from other jurisdictions as an elixir for this jurisdiction (See Judge Clinton’s dissenting Opinion on State’s Motion for Rehearing, footnote 3), no account has been taken of the broad discretion federal and many state trial judges have in instructing the jury regarding the weight and the considerations the jury is to give portions of the evidence. See Fed.R.Crim.P. 30; Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); 2 Wright, Federal Practice and Procedure, Sec. 488 (1969); 8A Moore, Federal Practice, Sec. 30.10 (2d ed. 1978); California Constitution, Art. VI, Sec. 10; California Penal Code, Sec. 1127; South Carolina Constitution, Art. V, Sec. 17; Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797 (1896); State v. Johnson, 66 S.C. 23, 44 S.E. 58 (1903). Also, I disagree that one of the jurisdictions said to have “met the challenge” has indeed done so. See Ives v. Commonwealth, 184 Va. 877, 36 S.E.2d 904 (1946). In Texas, trial judges are bound by Art. 36.14, V.A.C.C.P., which provides, in pertinent part:

“[T]he judge shall . . . deliver to the jury ... a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the' evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury . . .”

Second, I disagree that a charge on mistaken identity is akin to the defense of alibi. In the charge on the defense of alibi, the jurors are instructed that if they believe a defendant’s alibi they are to find the defendant not guilty. Is it being suggested in the dissent that a jury be instructed to acquit a defendant because a witness failed to identify the defendant in a pretrial lineup, even though that witness had made an in-court identification of the defendant and even though the in-eourt identification by the witness may have been corroborated by other witnesses?

I also note that the dissenters in their Opinions on State’s Motion for Rehearing have not had the temerity to quote for the inspection of the bench and the bar the appellant’s specially requested charge which the trial judge correctly refused to submit to the jury.

ODOM, Judge,

dissenting.

On this dark Wednesday the majority effectively abolishes the right of the accused to a meaningful trial by jury on defensive issues raised by the evidence.

None of the cases cited by the majority are on point; nor do they conflict with the holding on original submission in this case, as asserted by the majority.

The majority admits that the evidence did not raise the issue of mistaken identification in Ward v. State, Tex.Cr.App., 505 S.W.2d 832, and Waller v. State, 581 S.W.2d 483 (1979). In Guzman v. State, Tex.Cr. App., 567 S.W.2d 188, it was not contended on appeal that the issue had been raised, but merely that the law of proof beyond a reasonable doubt was not adequately applied to identification of the accused. The Court there held, “Viewing the charge as a whole, it properly instructed the jury concerning reasonable doubt.” From the opinion in Jones v. State, Tex.Cr.App., 566 S.W.2d 628, it also appears that no evidence raised the issue of mistaken identity; the opinion merely recites, “The two State’s witnesses identified the appellant as the assailant.” Finally, the opinion in Laws v. State, Tex.Cr.App., 549 S.W.2d 738, also reflects that the defensive issue was not raised by the evidence. In that case, although one state witness had failed to identify the defendant in a line-up, two other witnesses were unimpeached in their identification testimony.

Unlike the cases cited by the majority, the evidence in this case did raise the defensive issue of mistaken identification. Evidence was presented by the defense that the state’s only identifying witness had viewed appellant and two others for possible identification and had said that appellant was not one of the rapists.

The defensive issue was clearly raised and appellant was entitled to an affirmative submission of the issue. It is well established that an accused is entitled to an affirmative submission of every defensive issue raised by the evidence. Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541; Loftin v. State, Tex.Cr.App., 366 S.W.2d 940; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716. The majority today abolish that rule by holding, in effect, that if the jury is instructed on the presumption of innocence, and on the requirement that the jury must find beyond a reasonable doubt that the accused committed the offense, then no defensive charge need be given. It is the function of a jury charge to lead the jury as to the matters for its deliberation and to prevent confusion. See, Williams v. State, Tex.Cr.App., 547 S.W.2d 18. A jury charge that only presents the law regarding the state’s case, and that ignores the defensive issues raised by the evidence, is a state-biased charge that is one-sided in its guidance to the jury. See, Fennell v. State, Tex.Cr. App., 424 S.W.2d 631, in which the conviction was reversed for failure of the charge to apply the law to the facts on the issue of self-defense, even though there was no objection.

The majority opinion today is guilty of the same misreading of the panel majority as was the dissent on original submission, in which it was protested that failure to identify the accused in a line-up should not be an affirmative defense that would require an acquittal. The majority on original submission held that appellant was entitled to an affirmative submission of the issue, not an affirmative defense and not an acquittal if the jury found the victim had previously stated appellant did not commit the crime.

The simple issue is whether appellant was entitled to have the jury fairly instructed on the issue, and thereby fairly decide it. Previous decisions of this Court have recognized that mistaken identification is a defensive issue and that the accused is entitled to an affirmative submission of the matter. See, Wheeler v. State, 56 Tex. Cr.R. 547, 121 S.W. 166; Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573; Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848, 853. Appellant was denied his right to have the jury adequately instructed on the defensive issue raised, and his constitutional right to a trial by jury was thereby impaired. The majority decision today endorses this injustice and leaves a dark cloud of uncertainty over the future of the right to a jury charge on any defensive issue.

I dissent.

CLINTON, Judge,

dissenting.

Concurring completely in the dissenting opinion eloquently presented by Judge Odom, as a member of the panel that decided Waller v. State, 581 S.W.2d 483 (1979), 1 write to remark that adjudication by adage is a practice that should be abandoned along with the old saying.

A “rule” that it is improper “for the court to single out particular facts or specific parts of the testimony and charge thereon” is so abstract that it provides no standard at all. Taken literally it results in the proposition expounded by Judge Hawkins on motion for rehearing in Dunne v. State, 96 Tex.Cr.R. 7, 263 S.W. 608, 617 (1923):

“We think it may be stated, as a sound general rule, that the trial court is not required to charge upon any specific evidence unless it be introduced by the State for a particular purpose, and is likely to be appropriated by the jury improperly against the defendant on trial, which is illustrated by a charge limiting impeaching evidence in certain instances.”

Moreover, uttering the adage to answer the ground of error asserted in this cause only serves to divert attention from the actual holding implicit in the majority opinion. That is, that the criminal law of this State does not admit mistaken identification as a defensive issue. In that the majority errs for, as pointed out by Judge Odom, this Court has recognized mistaken identification as a defensive issue in the cases he cites.

Furthermore, by what I hope is an indiscriminate use of the term “affirmative defense” the majority opinion, as well as the portion of the Waller opinion excerpted by the majority, conveys the idea that a defensive theory must reach the level of an affirmative defense — perhaps even as defined in V.T.C.A., Penal Code Section 2.04. The Court has expressly and succinctly stated otherwise in, e. g, Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972): “When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted to the jury. It is then the jurors’ duty, under the proper instructions, to determine whether the evidence is credible and supports the defense.”

The defense of mistaken identity is akin to but is something other than the defense of alibi. See Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848, 853 (Tex.Cr.App.1940). It is not labeled an affirmative defense or a defense, V.T.C.A., Penal Code Section 2.03, but that omission should not and does not disqualify mistaken identity as a defensive theory which, when properly raised and supported by evidence, must be submitted to the jury. Since the majority opinion will be wrongly interpreted as an expression by the Court that a defensive theory of mistaken identification need not be the subject of an instruction to the jury as a defensive matter, I respectfully dissent.

      . The State points out that an alibi charge was given. An alibi charge would not dispense with the necessity of an affirmative charge on identity if raised by the evidence. See Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848, 853.

      . Rodriguez v. State, 372 S.W.2d 541 (Tex.Cr. App.1963).

      . Laws is also cited for the proposition that a charge on mistaken identity would have singled out particular parts of the testimony. While such a charge in that case, where only one of three identification witnesses was impeached, and where no defensive issue of mistaken identification was raised by the evidence, would have improperly singled out particular parts of the testimony, the rule against singling out parts of the testimony cannot be applied to prevent an affirmative submission of defensive issue that is raised by the evidence. Such an overbroad application of the rule will eliminate all jury charges on defensive issues which by definition “single out” the evidence that raised the issue when the law is applied to the facts.

      . While not articulated, my special concurrence in Waller was based on the notion that since the panel found that the issue of mistaken identity was not raised by the evidence the arguendo statements that followed that finding were of little moment and resolution of the issue should await the instant cause where it is squarely presented.

      . Indeed, in this case an instruction on alibi was given that is almost identical to one suggested by McClung, Jury Charges for Criminal Practice (Rev.Ed. January 1979) 215, “Alibi.”

      . Faulted by an earlier concurrence for not rendering an advisory opinion that presents an appropriate instruction concerning a proposition the Court holds need not be submitted at all, I am content to distill from decisions of several jurisdictions which met the challenge at least fifty years ago and thereafter the following:
      You must be satisfied beyond a reasonable doubt of the accuracy of identification of defendant as perpetrator of the offense charged, and you are instructed that if from facts and circumstances in evidence you have a reasonable doubt as to whether defendant is the person who committed the offense alleged in the indictment you will find the defendant not guilty of the offense.
      See, e. g., People v. De Hoog, 100 Cal.App. 235, 279 P. 1067 (1929); Noblett v. Commonwealth of Virginia, 194 Va. 241, 72 S.E.2d 241, 244 (1952); State v. Fleming, 228 S.C. 129, 89 S.E.2d 104 (1955); Salley v. United States, 122 U.S.App.D.C. 359, 361, n. 2, 353 F.2d 897, 899, n. 2 (1965); Macklin v. United States, 133 U.S. App.D.C. 139, 409 F.2d 174 (1969); see also admonition of Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016, 1024 (1969) that a careful trial judge may avoid danger of selective comment on facts while still directing attention of the jury to “particular issues most critical to the case” such as reliability of pretrial identification.


author: W. C. DAVIS, Judge.

text:
    Homer Ray LAND, Appellant, v. The STATE of Texas, Appellee. Billy Mack ADAIR, Appellant, v. The STATE of Texas, Appellee. Phillip Ray LAND, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55172 and 57206-57208.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.
    Rehearings En Banc Denied June 20, 1979.
    Bill Pemberton, Joe Weis, Greenville, for appellant.
    Donald A. Parks, City Atty., Greenville, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Appeal follows trial de novo in county court on the offense of possession of channel catfish in excess of the legal limit. The trial court assessed punishment at a two hundred dollar ($200) fine in each cause. The four causes arise from the same fact situation and present identical issues for review. Thus the causes are consolidated for purposes of this opinion.

Surveillance by Texas Parks and Wildlife Department officers resulted in the arrest of appellants as they emerged from Lake Tawakoni. At the time of their arrests, appellants had in their possession 1,652 channel catfish. Prosecution of appellants proceeded under Proclamation A-3, issued by the Parks and Wildlife Department, which provides that each fish possessed in excess of the legal limit constitutes a separate offense. Secs. 1.07 and 7.02, Statewide Hunting, Fishing and Trapping Proclamation No. A-3, 1975-76.

Appellants contend that Proclamation A-3 is in part unconstitutional because it is an attempt by an administrative agency to formulate penal laws. Appellants argue that the Legislature is prohibited from delegating rule-making authority to administrative agencies. Tuttle v. Wood, 35 S.W.2d 1061 (Tex.Civ.App.-San Antonio, 1931).

Appellants’ argument on delegation raises fundamental issues of administrative and state constitutional law, which we proceed to review in the interest of justice.

In Tuttle, supra, the Court held that the Legislature could not delegate law-making powers which prescribed a penalty to an administrative agency. Following Tuttle, courts have steadily retreated from the “no delegation doctrine” to the point that rule-making and regulation by administrative agencies pursuant to specific delegated authority is permitted. Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex.Civ. App.-Austin, 1962).

Approval of regulatory activities by administrative bodies was a realization by the courts of the very real problems facing legislators. Very often the areas that require regulation involve highly technical fields or areas where massive accumulation of data is necessary. Faced with limitations on funds, time, and manpower, legislators find it impossible to acquire the requisite knowledge and expertise to enable them to responsibly legislate in the area. Delegation of the rule-making authority to an agency staffed by experts with access to the required data is a realistic approach to the problem. The agency supplies the expertise to regulate the area within the guidelines established by the Legislature. Such a solution has been approved by the Texas Supreme Court:

“[Tjhere are many powers which the Legislature may delegate to other bodies where the Legislature cannot itself practically or efficiently perform the functions required.”

Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939), no writ history.

In the present case, delegation of rule-making authority to the Parks and Wildlife Department is both a practical and efficient method to regulate the wildlife resources of Texas.

Delegation of rule-making authority is not an unlimited grant of power. In doling out the authority to regulate and make rules, the Legislature must establish guidelines for the agency. Attorney General Opinion, No. M-1190 (1972).

The agency must carefully frame its regulations within the narrow confines established by the Legislature. A rule made outside these guidelines may be held invalid or beyond the delegated authority. Kelly, supra.

In promulgating rules, the agency receives guidances from two main sources. First, the plain and clear language of the Legislature defines the extent of the authority delegated. This legislative mandate establishes the guidelines within which the agency may function. Also, the agency may not suspend laws enacted by the Legislature because that authority is limited exclusively to direct action by the Legislature. Vernon’s Ann.Tex.Const., Art. 1, Sec. 28. Further, in rule-making, the agency may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with statutory provisions. Kelly, supra.

Briefly stated, an administrative agency is controlled by the guidelines established by the Legislature and may not suspend legislative acts or increase the sanctions of statutes.

Appellants’ broad assertion that the delegation of rule-making authority is unconstitutional is without merit. However, we must examine further to determine if the portion of Proclamation A-3 at issue exceeds the delegation of authority given the Parks and Wildlife Department.

Appellants were prosecuted under Statewide Hunting, Fishing and Trapping Proclamation No. A-3 1975-76, which provides:

Sec. 1.07 “Each . . . fish taken or possessed in violation of any provision of this proclamation shall constitute a separate offense.”
Sec. 7.02 “The daily bag limit on channel catfish is twenty-five in the aggregate and the possession limit is fifty (50) in the aggregate.”
The complaint in each cause charges: “. . . unlawfully and willfully possess fish, namely: channel catfish, taken from the public waters of the State of Texas, to-wit: Lake Tawakoni, in excess of the possession limit of fifty (50).”

Clearly, Proclamation A-3 regulates both taking and possessing. The complaint charges a violation by possession over the limit. Therefore, in order for the judgments to be affirmed, the Legislature must have delegated the authority to regulate possession to the Parks and Wildlife Department. Brown Express Inc. v. Railroad Commission, 415 S.W.2d 394 (S.Ct.Tex. 1967); Kelly, supra.

Our review of the Parks and Wildlife Code reveals no delegation of authority to regulate possession of channel catfish. Rather, the authority delegated is in the area of taking:

“Sec. 61.052 General Regulatory Duty
“(a) The commission shall regulate the periods of time when it is lawful to take wildlife resources in the places covered by this chapter.
“(b) The commission shall regulate the means, methods, manners, and places in which it is lawful to take wildlife resources in the places covered by this chapter.”
“Sec. 61.054 Proclamation of the Commission
“(a) Regulation of the taking of wildlife resources under this chapter shall be by proclamation of the commission.
“(b) A proclamation of the commission authorizing the taking of wildlife resources must specify:
“(1) the species, quantity, age or size, and, to the extent possible, the sex of the wildlife resources authorized to be taken;
“(2) the means or method that may be used to take the wildlife resources; and
“(3) the region, county, area or portion of a county where the wildlife resources may be taken.”
“Sec. 61.901
“(a) A person who violates any provision of this chapter or any proclamation or regulation of the commission issued under the authority of this chapter is guilty of a misdemeanor and on conviction is punishable by a fine of not less than $25 nor more than $200. Each game animal . or fish taken in violation of this chapter or of a proclamation or regulation of the commission constitutes a separate offense.”

These provisions clearly and unambiguously delegate authority to regulate the taking of channel catfish, not the possession. See Tidwell v. State, 547 S.W.2d 34 (Tex.Cr.App. 1977). Since we are dealing with a regulation that is penal in nature, we must strictly construe the rule-making authority. Strict construction forces us to look at the clear language of the guidelines established by the Legislature permitting regulation of taking only. That there is a distinction between taking and possession is without question. Ex parte Blardone, 55 Tex.Cr.R. 189, 115 S.W. 838 (1909).

We hold therefore that any regulations as to possession limits of channel catfish were beyond the authority delegated to the Parks and Wildlife Department. It follows that convictions based on unauthorized portions of Proclamation A-3 cannot stand.

The judgments are reversed and the prosecutions are ordered dismissed.

      . There is some confusion as to whether Cause No. 55,172 was prosecuted under Proclamation A-3. However, the record indicates that the maximum fine in 55,172 was $200, which exceeds the $50 maximum stated in V.T.C.A., Parks & Wildlife Code, Sec. 66.106(b). The record indicates, therefore, that all causes were prosecuted under Proclamation A-3.
      Section 66.106(b) states:
      “Catfish Limits
      “(a) Except as provided in Subsections (b) and (c) of this section, no person may catch and retain in any one day, or place in or on any container or device used for holding fish while in the process of fishing, fish taken from public fresh water in excess of the following limitations: ******

        “(b) A person may possess at one time not more than 50 blue, channel, or yellow flat-head catfish, singly or in the aggregate.
      * * * * * *
      “(d) A person who violates this section is guilty of a misdemeanor and on conviction is punishable by a fine of not less than $5 nor more than $50.”

      . Therefore, the State’s argument that Sec. 66.-106(b) was suspended by Proclamation A-3 is without merit.

      . We note that the “possession” portions of Proclamation A-3 would have the effect of suspending Sec. 66.106(b) and increasing penal sanctions; therefore, even if the authority to delegate had been given in the area of possession, Proclamation A-3, Secs. 1.07 and 7.02, would be invalid under Vernon’s Ann.Tex. Const., Art. I, Sec. 28; Kelly, supra.


text:
    Moses HART, Appellant, v. The STATE of Texas, Appellee.
    No. 54864.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.
    Rehearing En Banc Denied June 13, 1979.

      Larry Finstrom and James P. Finstrom, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., John D. Ovard and David C. Schick, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. -DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Appeal follows a conviction for aggravated assault. Punishment was enhanced under V.T.C.A. Penal Code, Sec. 12.42(a) and assessed at twenty years’ confinement and a $5,000 fine. Appellant presents eleven grounds of error. We affirm.

Appellant was indicted for the offense of attempted murder. After hearing evidence, the jury returned a guilty verdict on the lesser included offense of aggravated assault. V.T.C.A. Penal Code, Sec. 22.02. In his first ground of error, appellant challenges the sufficiency of the evidence to support his conviction for aggravated assault.

The complaining witness testified that appellant attacked her with a knife, as she was leaving a tavern in Dallas at about 2:30 a. m. Complainant fled, pursued by appellant, running several blocks to an alley behind an all-night cafe (Metro Diner). There, complainant discovered a short length of “pipe” and seized it to use in defending herself against appellant. Appellant again attacked complainant and stabbed her in the stomach and shoulder before taking flight.

Controverting complainant’s testimony, appellant claims that complainant had a gun and attempted to rob him. When appellant refused to surrender his money, complainant began hitting him with her gun. Appellant ran, attempting to elude complainant, and found himself in the alley behind the Metro Diner. Complainant continued her assault on appellant, and appellant testified he used his “pocket knife” to defend himself.

Witnesses to the struggle in the alley were only able to corroborate the fact that the struggle actually occurred. No witness could testify as to which party was the aggressor; however, a witness inside the Metro Diner did corroborate complainant’s story concerning the discovery and use of the short “pipe.” This witness also testified that appellant had earlier, on the same night, caused “trouble” inside the Metro Diner, but left when police were called.

There is uncontroverted evidence, in the form of hospital records, showing that complainant was treated for stab wounds to her stomach and shoulder. Although complainant was treated and released, the wound to her stomach required twenty stitches. Further, the hospital records reflect the complainant was hysterical and was placed, for a time, in the “trauma” room. .

In challenging the sufficiency of the evidence, appellant argues that the State failed to show serious bodily injury or use of a deadly weapon required in an aggravated assault conviction. V.T.C.A. Penal Code, Sec. 22.02. We find the evidence sufficient on either theory.

Serious bodily injury is defined as:
“bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” V.T.C.A. Penal Code, Sec. 1.07(a)(34).

The record before us indicates that the wounds suffered by complainant were serious. An examination of this record, in the light most favorable to the verdict, reveals two separate struggles separated by a foot race covering several city blocks. In the latter struggle, appellant twice stabbed complainant, even though complainant was, at the time, armed with either a gun or a piece of pipe. Complainant testified that these two wounds were serious and a person who has received injuries is qualified to express an opinion on the seriousness of those injuries. Denham v. State, 574 S.W.2d 129 (1978).

As to appellant’s contention that the knife was not a deadly weapon, we cannot agree. While a knife may not be a deadly weapon per se, an examination of the record on a case-by-case basis may establish that in a particular case the knife was a deadly weapon. In making such a determination, we must examine the nature and location of the wounds inflicted. Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972). Also, to be considered is the actual use or intended use of the knife. Denham, supra; Limuel v. State, 568 S.W.2d 309 (Tex.Cr. App.1978); Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517 (Tex.Cr.App.1944).

Here, the knife was used to inflict wounds which required medical attention. An instrument that inflicts two stab wounds, one requiring twenty stitches, on a person armed with a pipe or gun has established its character as a deadly weapon. See Acosta v. State, 179 S.W. 870 (Tex.Cr. App.1915).

We note the interesting but unpersuasive position taken by appellant. The jury was charged on the lesser included offense of aggravated assault at appellant’s insistence that the lesser offense was “raised by the evidence.” The jury, properly charged, returned a verdict of guilty of aggravated assault. Now, appellant argues that the evidence was insufficient to support a conviction for aggravated assault. If there exists a distinction between the amount or degree of evidence necessary to charge the jury on a lesser included offense and the sufficiency of the evidence to support a conviction of the lesser included offense on appeal, such a distinction is a very fine one. Fortunately, we are not now required to focus on this issue; however, we do note in Stiles v. State, 520 S.W.2d 895 (Tex.Cr.App.1975), a requested charge on accidental death was given where not raised by the evidence. Holding that the error was invited by requesting the charge, we found no reversible error. The same reasoning would easily be extended to appellant’s argument.

Ground of error one is overruled.

In ground of error two, appellant claims his conviction is based on a jury charge that permitted a conviction on a theory not supported by the indictment. The indictment charged:

“ . . . knowingly and intentionally with intent to commit the offense of murder, attempt to cause the death of (complainant) by stabbing (complainant) with a knife.”

Such language, argues appellant, does not include allegations of serious bodily injury or use of a deadly weapon as required in V.T.C.A. Penal Code, Sec. 22.02 (aggravated assault). This argument is without merit.

The indictment sets forth an allegation of serious bodily injury by the language “attempt to cause death.” V.T.C.A. Penal Code, Sec. 1.07(a)(34). Further, this attempt to cause death was occasioned by “stabbing with a knife.” Alleging that a knife was the weapon used in an attempt to cause death is an allegation that the knife is a deadly weapon. V.T.C.A. Penal Code, Sec. 1.07(a)(ll). Such language included the lesser offense of aggravated assault.

In his third ground of error, appellant complains that the indictment is insufficient to charge an offense and therefore is insufficient to sustain a conviction for a lesser included offense. Appellant’s specific allegation is that the act of stabbing with a knife is not such an act that is one beyond mere preparation but failing to effect the commission of the offense intended.

The indictment is sufficient if the act of stabbing with a knife goes beyond mere preparation. See, generally, V.T.C.A. Penal Code, Secs. 19.02 (murder) and 15.01(at-tempt). To argue that the physical act of thrusting a knife blade into the complainant’s body is mere preparation does not comport with common experience or reasoning. While simple acquisition and possession of a weapon would, in most situations, be preparation, putting that weapon to use to inflict injuries clearly goes beyond preparation. By alleging that appellant attempted to cause death by stabbing, the State has alleged an act beyond mere preparation which fell short of the intended offense of murder. Williams v. State, 544 S.W.2d 428 (Tex.Cr.App.1976); Colman v. State, 542 S.W.2d 144 (Tex.Cr.App.1976).

Ground of error three is overruled.

In ground of error seven, appellant claims the trial court erred in permitting the State to argue that appellant should not be convicted of the lesser included offenses. The argument complained of informed the jury that one of the lesser included offenses was a misdemeanor. Appellant argues that such argument asked the jury to determine guilt not on the facts, but on the basis of punishment.

A determination of appellant’s claim requires an examination of the argument from the viewpoint of the jury. Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972). From that viewpoint, the argument must be such as requires the jurors to convict on one offense over another because of the difference in punishment available. McClure v. State, 544 S.W.2d 390 (Tex.Cr.App.1976).

In McClure, supra, the State, in the face of objections and warnings from the court, repeatedly argued the difference in the numbers of years the defendant could be confined if convicted of the lesser included offense. We held:

“It was a plea to the jury to consider the amount of punishment, rather than the facts, in determining the offense for which defendant should be convicted.” McClure v. State, 544 S.W.2d 390 at 393 (Tex.Cr.App.1976).

Here, the State mentioned that one of the lesser included offenses was a misdemeanor but also argued for the jury to decide guilt on the facts. The harm is not in informing the jury concerning punishment, but argument for conviction based on punishment. McClure, supra. When we consider this argument from the jury’s viewpoint, we find no error.

In his remaining grounds of error, appellant complains of jury argument by the State concerning his criminal history. The appellant objected during the State’s argument that statements about his criminal history were “outside the record.”

Appellant’s criminal history had been detailed by himself and by certified records. His criminal history was exposed to the jury long before the State’s argument. The objections that appellant’s criminal history was outside the record are unfounded and properly overruled.

The judgment is affirmed.

      . Appellant filed no motion to quash but now attacks the indictment on appeal.

      . Appellant requested and received charges on aggravated assault, assault, and self-defense.

      . The State’s argument which is the basis of this ground of error reads as follows:
      “Then he is trying to say — and this is probably Mr. Schick’s and my biggist fear, is that you will compromise the verdict. You’ll say, golly, they have raised all these things and the Judge has put in between charges in there under the evidence. We’ll compromise somewhere. We won’t find him not guilty. We’ll find him guilty of one of these lesser offenses. One of these, the misdemeanor offenses that’s included.”


author: TOM G. DAVIS, Judge.

text:
    John B. LOVE, V, Appellant, v. The STATE of Texas, Appellee.
    No. 57965.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.
    Rehearing En Banc Denied June 20, 1979.
    Anthony Nicholas and Terrence W. McDonald, Mayo J. Galindo, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Federico G. Rodriguez and Lisa M. Beck, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. V.T.C.A. Penal Code, Sec. 19.02. After the jury returned a verdict of guilty, punishment was assessed by the court at 30 years.

The record reflects that on October 18, 1974, at approximately 7:20 p. m., appellant’s estranged wife was fatally stabbed outside her San Antonio apartment. She went to a neighbor’s apartment to seek assistance. Roland Bradfute, the neighbor, admitted the deceased after she knocked on the door and shouted, “Let me in. Please help me. I am bleeding to death.”

Bradfute testified that the deceased fell to the floor of the apartment after entering. Bradfute summoned assistance on the telephone and returned to the deceased’s side. He asked the deceased several times who had stabbed her, and the deceased finally responded, “My husband.”

Other witnesses, such as police officers and the ambulance crew, testified as to other statements made by the victim while she was still in the apartment. These statements were in response to questions regarding the identity of her attacker. The tenor of these questions ranged from “who did it” to “was it your husband.”

Joe Garcia, another neighbor, testified that sometime between 7:00 and 7:30 p. m. he saw the appellant place the screen back on the window of the deceased’s apartment. He stated that he confronted the appellant and was told that the appellant had been repairing the window. As appellant walked away, Garcia saw a blade-like object in the appellant’s hip pocket. Garcia later responded to the deceased’s cries for help and saw her enter Bradfute’s apartment.

Officer Paul Hernandez of the San Antonio Police Department testified that about 7:00 p. m. on the same night he had seen the appellant walking toward the apartment complex in which the deceased lived. Officer Hernandez worked part-time as a security guard for the apartment complex.

Judi Imbriani, a niece of the deceased, testified regarding conversations with the deceased about a month prior to the attack. Her testimony included statements attributed to the deceased such as, “I am tired of running from John,” and “I know he is going to get me sooner or later.”

Nora Siedensticker, a friend of the deceased, testified as to conversations with the deceased one day before the attack. She stated that the deceased had told her that she “was tired of running and did not mind dying, but did not think John had a right to say when she had to die.” This witness also testified she offered the deceased a pistol for protection, but the deceased refused to take the gun, stating “no, if John [is] going to kill [me], then he [has] to suffer the consequences.”

Laura Long, a first cousin of the deceased, testified regarding her conversations with the deceased approximately one month before the attack. Long testified that the deceased had told her that the appellant had broken into her apartment several times, and on one of these occasions threatened her with a knife. Long also testified that the deceased told her that on this occasion the appellant said, “He would have killed her except that he loved her too much.”

Appellant presented evidence that he had been in a bar near the apartment complex where the deceased lived until about 7:30 p. m. on the night of the offense. He testified that he then drove to Fredericksburg and did not return to San Antonio until after midnight.

Appellant contends that the trial court erred in admitting the hearsay testimony of Imbriani, Siedensticker, and Long regarding their conversations with the deceased. He maintains that the statements were prejudicial and harmful. Appellant objected to the admission of each of these witnesses’ testimony regarding their conversations with the deceased.

The State responds that these statements were admissible under V.T.C.A. Penal Code, Sec. 19.06, to evaluate the relationship between the appellant and the deceased. The State further contends that the statements were introduced only to show the state of mind of the deceased, and therefore an exception to the hearsay rule. Finally the State urges that the appellant was not harmed by the admission of these statements.

The State’s reliance on Sec. 19.06, supra, does not resolve the issue presented. Section 19.06, supra, does not extend the rules of hearsay as to allow the admission of otherwise inadmissible hearsay statements. Fazzino v. State, Tex.Cr.App., 531 S.W.2d 818; Erwin v. State, Tex.Cr.App., 531 S.W.2d 337; Jones v. State, Tex.Cr. App., 515 S.W.2d 126.

The statements in the present case were statements of a spouse made outside of the presence of the appellant. Such statements have been held inadmissible in the prosecution for the murder of that spouse. Fazzino v. State, supra; Jones v. State, supra.

In Jones v. State, supra, as in the present case, the State contended that the statements were admissible to show the state of mind of the deceased. The Court, in Jones, answered this contention as follows:

“The State contends that this testimony is admissible under several doctrines which avoid the hearsay rule. It is urged the testimony was offered as evidence of the deceased’s state of mind at the time of the shooting and that it was not consistent with one against whom the appellant would have to defend herself. If indeed it was evidence of the deceased’s state of mind, the testimony is not hearsay at all because it was not offered for its truth but to show that the deceased believed it. McCormick & Ray, Texas Law of Evidence, § 862 (1956). However, for the deceased to truly have the state of mind here presented, one could only assume that the accusations were indeed true; why else the state of mind? The effect is that the state of mind cannot be imputed to deceased without believing the truth of his statements. The statement did not demonstrate intent of future action but only discussed, three years prior to the shooting, an incident that had occurred some time prior to the conversation. It could not have been offered to prove only the state of mind, but had to imply the truth of the matter asserted. This exception to the hearsay rule does not allow admission of this testimony in this case. Cf., People v. Hamilton, 55 Cal.2d 881, 13 Cal.Rptr. 649, 362 P.2d 473 (1961).”

515 S.W.2d at 129. See, Burchfield v. State, Tex.Cr.App., 475 S.W.2d 275; Buckelew v. State, Tex.Cr.App., 431 S.W.2d 13.

In the present case, the testimony could not have shown the deceased’s state of mind unless the statements were taken as true. Further, we note that the State extensively cross-examined the appellant on inconsistencies between his testimony and these statements attributed to his wife. This use is not consistent with the State’s position that the testimony showed only state of mind, but instead reveals that the statements were used as if they were true.

We find that the statements were inadmissible hearsay, and their admission into evidence was error.

We cannot say that the admission of these statements was harmless to the appellant. They revealed that the deceased was apprehensive of attacks by the appellant, and further showed a prior attack by the appellant on the deceased. The State’s use of these statements to impeach the appellant’s testimony put his credibility in issue to be weighed against the credibility of both the witness at trial and the deceased. He was obviously unable to attack the credibility of the deceased’s statements. We hold that the admission of this testimony was reversible error in this case.

We express concern about the admissibility of certain statements attributed to the deceased following the stabbing. It appears that some of these statements were made in response to leading or suggestive questioning. Further, the record is unclear as to whether the deceased was conscious of approaching death and believed that she had no hope of recovery. All these factors are important in consideration of whether these statements would be admissible as to either res gestae or dying declarations. See, Art. 38.20, V.A.C.C.P.; Silva v. State, Tex.Cr.App., 546 S.W.2d 618; Munoz v. State, Tex.Cr.App., 524 S.W.2d 710.

The judgment is reversed and the cause remanded.