author: SAM D. JOHNSON, Justice.

text:
    MID-WESTERN LIFE INSURANCE COMPANY OF TEXAS, Petitioner, v. Larry GOSS et ux., Respondents.
    No. B-6582.
    Supreme Court of Texas.
    June 8, 1977.

      0. Joseph Damiani, J. Michael Cunningham, Houston, for petitioner.
    Gordon Wellborn and Rex Houston, Blake Bailey, Henderson, for respondents.
   SAM D. JOHNSON, Justice.

Larry and Ann Goss brought this action against Mid-Western Life Insurance Company asserting that the Company had breached an insurance contract by refusing to pay their claim for hospitalization benefits. Mid-Western maintained that Ann Goss’ hospitalization for appendicitis was not covered by its policy. At trial Mid-Western’s motion for an instructed verdict in its favor was granted. The court of civil appeals reversed and remanded concluding that there was sufficient evidence to require the submission to the jury of the issue of whether the policy did indeed cover hospitalization for appendicitis. 545 S.W.2d 878. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

In November 1974 Mr. and Mrs. Goss applied for hospitalization coverage with Mid-Western. Mrs. Goss informed Mid-Western’s agent that she had had a history of stomach problems which included severe stomach pains and vomiting. The agent then added an exclusion to the policy which provided that “it [the policy] does not cover loss resulting directly or indirectly from 1) any disease or disorder of the gastro-intesti-nal tract, any complications thereof, treatment or operation therefor. . . .”

On February 1, 1975 the policy went into effect and on February 16, 1975 Mrs. Goss had surgery to remove her appendix. The couple submitted a claim to Mid-Western, but it refused to pay on the basis of the quoted exclusion contending that the appendix was part of the “gastro-intestinal tract.”

At trial the only issue was whether the exclusion in the policy precluded recovery for appendicitis. The deposition testimony of two physicians was admitted into evidence. Dr. Braswell, Mrs. Goss’ local doctor, described the “gastro-intestinal tract” as follows:

“The gastro-intestinal tract begins with the intake of food, which passes across the lips and into the oral cavity, the mouth, and is propelled down the pharynx by the tongue, the food then goes into the esophagus, and is propelled into the stomach, in which it is mixed with enzymes and acids of digestion. It is then emptied into the small bowel, where digestion is completed, and the contents of the food then empties into the colon, which is propelled into the rectum, and evacuated through the anus. This is the gastro-intestinal system, there are allied associated parts of the gastro-intestinal system, which would include the pancreas and the gall bladder and ducts, which are included in the gastro-intestinal system.”

Dr. Haygood, the surgeon who removed Mrs. Goss’ appendix, defined the “gastro-in-testinal tract” in the following manner:

“Well, gastro means stomach. Intestinal means intestine, so the word ‘gastro-in-testinal’ could strictly be limited to mean the stomach and the intestine, although when one speaks of the gastro-intestinal tract or GI tract, this generally refers to the entire alimentary canal, which starts with the mouth, the pharynx, the esophagus, the stomach, the entire small intestine, the entire large intestine, the rectum and ending at the anus. Embryolog-ically, the appendix rises with the cecum, which is the right portion of the large intestine, and it communicates with and is a part of the gastro-intestinal tract.”

No other evidence or testimony was admitted at trial from which the instant cause might be resolved.

It is clear that the burden of proof was on the plaintiffs, Ann and Larry Goss, to prove that the appendix was not part of the “gastro-intestinal tract” and that therefore an appendectomy was not excluded by the aforementioned limitation contained in Mid-Western’s policy and pleaded as a defense by the Company. Sherman v. Provident American Insurance Company, 421 S.W.2d 652 (Tex.1967).

In reviewing the correctness of this instructed verdict by the trial court, the standard to be applied is whether there is contained in the record evidence of probative force that the expenses of an appendectomy were covered by the policy. In deciding this question, the evidence is to be considered in its most favorable light in support of Ann and Larry Goss’ cause of action. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969).

A careful examination of the testimony of Dr. Braswell reveals that he neither includes nor excludes the appendix from the “gastro-intestinal tract.” There is simply no reference to the appendix. This testimony thus does not provide any basis for a jury to reasonably conclude and find that the appendix was not a part of the “gastrointestinal tract.”

Dr. Haygood’s testimony stands on a somewhat different basis. Dr. Haygood indeed stated that “gastro-intestinal” could mean merely the stomach and the intestine. However, he went on to state that “the appendix rises with the cecum, which is the right portion of the large intestine, and it communicates with and is a part of the gastro-intestinal tract.” [Emphasis added.] This testimony is contradictory of the contention made by Ann and Larry Goss and would not be such as to allow a jury to reasonably conclude that the appendix was not part of the “gastro-intestinal tract.”

Since there is no evidence of probative force in the record to justify a jury finding that the appendix is not part of the “gastrointestinal tract” and therefore conclude that an appendectomy was covered by the policy, it was proper for the trial court to direct a verdict for Mid-Western.

We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    J. B. HARDEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 52945.
    Court of Criminal Appeals of Texas.
    May 25, 1977.
    Rehearing Denied July 6, 1977.

      Melvyn Carson Bruder, James P. Neill, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr. and Fred Davis, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of concealing stolen property; the prosecution was under the former Penal Code, Article 1430, V.A.P.C. (1925); the punishment is imprisonment for 2 years.

The appellant asserts that: (1) the evidence is insufficient to sustain the conviction; (2) the indictment was unlawfully amended; (3) the evidence is insufficient to show that the grand jury used reasonable diligence to determine from whom the appellant received the stolen property; (4) evidence of extraneous offenses was erroneously admitted; (5) the prosecutor was permitted to argue matters not supported by evidence; (6) the court erroneously overruled the amended motion for new trial after it erroneously found that the State need not reveal the name of an informer and erroneously found that the State had not suppressed evidence which would have been favorable to him; and (7) the trial court erred by not following the provisions of Article 36.27, V.A.C.C.P., when it communicated with the jury. Both the appellant and the State have submitted briefs of superior quality.

It was alleged that the appellant, on or about September 25, 1971, knowing that it was stolen, received and concealed a traxa-cavator of the value of $30,000. It was also alleged that the traxacavator was the property of M. L. Gregory and the appellant received it from a person whose name was to the grand jury unknown.

We will first discuss the appellant’s assertion that there is insufficient evidence to sustain the conviction. On March 9, 1972, on ranch property belonging to the appellant, several law enforcement officers found three pieces of large machinery, a 977K traxacavator, which is the piece of machinery described in the indictment, a D8 bulldozer, which was stolen in September, 1971, from William Neal, Jr., and a 977L traxacavator, which was stolen in September, 1971, from Jim Alexander. Also, a bulldozer, which was stolen in September, 1971, from Noble Construction Company, was found at the appellant’s place of business in Justin.

The traxacavator belonging to' M. L. Gregory was stolen on the weekend of September 25-26,1971; according to the appellant’s testimony, the traxacavator appeared on his ranch near Justin the last part of September, 1971. The Gregory traxacavator and the other stolen traxacavator were found in a grove of pecan trees approximately two hundred yards from a country road. The pecan grove was in a pasture, and the pasture was bordered with a fence in which there was a locked gate. The D8 bulldozer was found behind a barn on the appellant’s ranch.

The appellant came to the scene just after the officers saw the machinery in the pasture; he told one of the officers: “Well, I knew the damned stuff was stolen because they brought it here in the middle of the night.” Identification plates and serial numbers had been removed from the machinery, fictitious numbers had been applied, the decals of the owners had been removed, and the machinery had been repainted. Although it is controverted, there is evidence that the traxacavator described in the indictment had been used to work on an earth dam on the appellant’s ranch.

The appellant testified that he had purchased the small bulldozer from one Bill Myers, and a bill of sale for that bulldozer was offered by the appellant and admitted in evidence. The appellant testified, apparently to explain the presence of the machinery on his land, that he had agreed to permit Myers to hold an auction sale of heavy machinery in the pasture.

The appellant’s statement, that he knew the property was stolen because it was brought to his property in the middle of the night, is evidence that the appellant knew the machinery was stolen. That the property was not fully hidden from view does not mean it was not concealed. Stolen property may be concealed by changing it so that its owners would not likely recognize it. Pieratt v. State, 141 Tex.Cr.R. 45, 146 S.W.2d 997 (1941). The word “conceal” is not to be given the literal meaning of hiding, but in contemplation of the statute, property may be concealed by handling the property in a manner that would throw the owner off guard in his search for it. Trammell v. State, 511 S.W.2d 951 (Tex.Cr.App.1974); Beaty v. State, 172 Tex.Cr.R. 343, 356 S.W.2d 802 (1962); Barker v. State, 109 Tex.Cr.R. 67, 2 S.W.2d 851 (1927); Cuilla v. State, 80 Tex.Cr.R. 41, 187 S.W. 210 (1916). There is evidence from which it may be inferred that the traxacavator was used on the appellant’s property for his benefit, and there was an attempt to conceal the property by repainting and changing identifying serial numbers. The appellant admitted he knew the machinery had been on his property for almost six months before it was discovered there by law enforcement officers. The evidence is sufficient to sustain the jury’s verdict finding the appellant guilty of concealing property knowing that it was stolen.

The appellant also asserts that the trial court erred by permitting the prosecution to proceed to trial on an unlawfully amended indictment. This objection is raised for the first time on appeal; no objection on this ground was made at the time of trial. The appellant argues that the date in the indictment on which it was alleged the offense was committed was changed from either 1972 or 1973 to 1971. It is said that a handwritten note, its author not being revealed by the record, was attached to the indictment with a paper clip; although it was not introduced in evidence, the trial court ordered that the note be included in the record. Even if we are authorized to consider this note, we find no support for the appellant’s contention that the indictment was amended after it was returned by the grand jury on January 22, 1974. The written note states that the file was examined 3/16/74, presumably by the judge in whose court the indictment was returned and filed; the note reads: “Date • — appears to be 1971 with the one written in ink.” Since there is no evidence to show whether the date, if it was changed, was changed before or after the indictment was returned, there is a presumption of regularity. It must then be presumed that the date was changed before the grand jury returned the indictment and that the indictment was not unlawfully amended. See Maier v. State, 90 Tex.Cr.R. 459, 235 S.W. 576 (1921).

The appellant urges the evidence is insufficient to show that the grand jury used reasonable diligence to determine from whom he received the stolen property. A premise upon which the appellant’s contention rests is that, even though his conviction was for concealing stolen property, the conviction depends on the unlawful receipt of the stolen property. He relies on and cites Thurman v. State, 37 Tex.Cr.R. 646, 40 S.W. 795 (1897). In that case the Court said:

“The receiving and concealing are two distinct offenses; that is, a person may be guilty of receiving the stolen property, though he made no concealment thereof. It would be difficult, however, for him to conceal the stolen property without having received the same.”

If this language can be construed to mean that a defendant may not be guilty of concealing property unless he is also guilty of receiving the stolen property, the statement is wrong. There is much authority supporting the proposition that although a defendant is not guilty of unlawfully receiving property, knowing it was stolen, he may be guilty of unlawfully concealing the property, after learning it was stolen. See Trammell v. State, supra; McBride v. State, 490 S.W.2d 560 (Tex.Cr.App.1973); Brown v. State, 152 Tex.Cr.R. 39, 211 S.W.2d 234 (1948); Rodriguez v. State, 134 Tex.Cr.R. 317, 115 S.W.2d 905 (1938); McLeroy v. State, 131 Tex.Cr.R. 118, 97 S.W.2d 184 (1936); Ryan v. State, 128 Tex. Cr.R. 482, 82 S.W.2d 668 (1935); Salcido v. State, 126 Tex.Cr.R. 281, 70 S.W.2d 706 (1934); Rutherford v, State, 85 Tex.Cr.R. 7, 209 S.W. 745 (1919); Falcone v. State, 84 Tex.Cr.R. 279, 206 S.W. 845 (1918); Kahanek v. State, 83 Tex.Cr.R. 19, 201 S.W. 994 (1918); Cuilla v. State, supra.

Since this conviction is for concealing stolen property and not for receiving stolen property, the State, to sustain the conviction, did not have to prove from whom the property was received. It follows that to sustain the conviction for concealing stolen property it was unnecessary to prove that the grand jury used reasonable diligence to ascertain from whom the appellant received the property.

The appellant complains of the admission of evidence of an extraneous offense since there was no evidence to connect him with the commission of that offense. Evidence was admitted to show that a truck and trailer were stolen during the night of September 25-26, 1971. There is strong circumstantial evidence that this truck and trailer were used to transport stolen machinery from the place where it was stolen to the appellant’s property, it is necessary in a prosecution for receiving and concealing stolen property to prove the theft of the property. Carpenter v. State, 156 Tex.Cr.R. 461, 243 S.W.2d 834 (1952); Poon v. State, 120 Tex.Cr.R. 522, 48 S.W.2d 307 (1932). This uncharged offense was admissible to prove the theft of the machinery and was admissible even though it was a collateral criminal offense and even though there was no evidence to show that the appellant, who was charged with receiving and concealing stolen property, was guilty of the theft of the truck and trailer. In these circumstances, Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.1975), Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.1975); and numerous other cases cited by the appellant have no application. Moreover, the owner of the truck had already testified that the truck had been stolen before an objection was made. See Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975).

The appellant next complains that the court admitted evidence of an extraneous criminal offense unrelated in time and circumstances to the offense charged in the indictment. This complaint relates to the testimony of Texas Ranger Alford. In answer to the defense attorney, on cross-examination, Alford testified he had met the appellant while investigating a case in the appellant’s office. On redirect examination Alford testified the investigation was concerned with business machines that had been reported stolen in Tennessee. The machine found in use in appellant’s office was a $1,700 calculator. This investigation took place in “early 1971.” The appellant admitted to the officers that the traxacavator found on his property was placed there in late September, 1971. The evidence concerning the business machine was admissible under the provision of V.T.C.A. Penal Code, Section 31.03(c)(1). V.T.C.A. Penal Code, Section 31.03, in pertinent part, provides:

“(a) A person commits an offense if, with intent to deprive the owner of the property;
“(1) he obtains the property unlawfully; or
“(2) he exercises control over the property, other than real property, unlawfully.
“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
“(2) the property is stolen and the actor obtains it from another or exercises control over the property, obtained by another knowing it was stolen.
“(e) for purposes of Subsection (b)(2) of this section:
“(1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty(Emphasis added.)

The offense was committed before, but the trial was after, the effective date of the new Penal Code. V.T.C.A. Penal Code, Section 31.03(c)(1), is a procedural rather than a substantive provision. Procedural provisions in effect at the time of the trial are applicable. Wilson v. State, 473 S.W.2d 532 (Tex.Cr.App.1971); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); U. S. v. Papworth, 156 F.Supp. 842, affirmed 5 Cir., 256 F.2d 125, certiorari denied 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88, rehearing denied 358 U.S. 914, 79 S.Ct. 239, 3 L.Ed.2d 235; James v. State, 72 Tex.Cr.R. 457, 163 S.W. 61 (1914); Ybarra v. State, 73 Tex.Cr.R. 70, 164 S.W. 10 (1914); Askew v. State, 59 Tex.Cr.R. 152, 127 S.W. 1037 (1910). We hold that the transaction concerning the business machine was admissible as it was sufficiently recent and similar to the transaction for which the appellant was on trial.

The appellant urges that the prosecutor, over objection, argued before the jury a matter unsupported by evidence. It is necessary to summarize and quote from the record to understand this contention. The Denton County Sheriff was a defense witness; during cross-examination, he testified that there had been an assistant district attorney in Denton County named Bob Ames. The Sheriff denied that Bob Ames had resigned as a result of pressure brought in this ease.

Defense counsel, during his argument at the guilt-innocence phase of the trial, said:

. . And remember, where is Bob Ames, the D.A. that supposedly quit? Where is the thief? And where is that rail that he mentioned, or whatever it was, that was burnt off of the cab? They never found that at all out on Harde-man’s ranch. They didn’t find that. There’s no evidence of that at all. It’s just like Ames and the thief.”

The complaint is about the following argument of the prosecutor made at the guilt-innocence phase of the trial:

“Now, where is Bob Ames. I wish we could go into that, where Bob Ames is today. I don’t know how far the law lets me go in replying to that particular comment, so I’m not going to take a chance on it, I’m not going to take a chance on it, but there is a reply and I want you, based upon the evidence that you know of in this case and your common sense, to think of the reply I would make on that particular comment.
“MR. FRIEZE: Object to his implication. It’s out of the record. There’s absolutely no proof Bob Ames ever existed now or ever. Request the jury be instructed to disregard that comment of Mr. Davis.
“THE COURT: Is that the reason you want me — if that’s your reason, overruled.
“MR. FRIEZE: Exception.”

The record contains evidence of the existence of Bob Ames; the defense counsel’s statement in his objection that there was no proof that Bob Ames ever existed now or ever and that this argument was outside the record was incorrect. The trial court’s ruling was proper in view of the objection made. In his brief on appeal the appellant asks this Court to consider the complained-of argument in connection with a later statement of the prosecutor. The later statement, which is taken out of context and to which there was no trial objection, was that: “. . .we have brought forth every bit of evidence that the law allows us to bring.” The argument was not improper, and we perceive no error.

The appellant complains of the court’s overruling his amended motion for new trial. He argues that he established the existence of an informer whose name he was entitled to know; furthermore, he argues that the State suppressed evidence of the existence and name of the informer.

The identity of the informer need not be disclosed unless the informer (1) participated in the offense; (2) was present at the time of the offense or arrest; (3) was otherwise shown to be a material witness to the transaction or as to whether the appellant knowingly committed the act charged. Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976); Barber v. State, 511 S.W.2d 937 (Tex.Cr.App.1974); James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

After the appellant’s amended motion for a new trial had been denied, and six months after he had been sentenced and had given notice of appeal, his counsel filed another “Amended Motion for New Trial;” in response to the motion, the trial court entered an order which, in part, reads:

“[T]he defendant did on July 21, 1975, present to the Court an Amended Motion for New Trial, and said Motion was marked with a filemark for record purposes only, the Court ordering that a copy of said motion be served on the State with a hearing to be conducted at a later date to determine if good cause exists for an extension of time for filing such Amended Motion for New Trial;”

An evidentiary hearing was held on the appellant’s amended motion for new trial. After hearing the evidence the trial judge expressed doubt as to whether he should, but he did, grant the appellant’s motion to extend the time for filing the “Amended Motion for New Trial.” Although the appellant was resentenced after the hearing, the appellant’s first sentence was never vacated and set aside. Our review of the record fails to show good cause for the extension of time to hear the motion for new trial. McCuin v. State, 504 S.W.2d 512 (Tex.Cr.App.1974); Menasco v. State, 503 S.W.2d 273 (Tex.Cr.App.1973); McDonald v. State, 501 S.W.2d 111 (Tex.Cr.App.1973). For this reason alone the trial court did not err in overruling the amended motion for new trial. See e. g., Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); Before v. State, 460 S.W.2d 128 (Tex.Cr.App.1970); Bennett v. State, 450 S.W.2d 652 (Tex.Cr.App.1969); Nelson v. State, 464 S.W.2d 834 (Tex.Cr.App.1971); Roberts v. State, 493 S.W.2d 849 (Tex.Cr.App.1973); Hines v. State, 495 S.W.2d 252 (Tex.Cr.App.1973). However, even if good cause had been shown to permit the late filing of the amended motion for new trial, a review of the evidence heard by the trial court does not show the trial court abused its discretion in denying a new trial.

H. H. Davis, the chief investigator of the Dallas County District Attorney’s Office, was one of the officers present when the stolen machinery was found in the appellant’s pasture. When the appellant came to the scene he signed a written consent form giving the officers permission to search his premises. H. H. Davis signed the consent form as a witness to the appellant’s signature on the form. That form was admitted into evidence on the trial. Davis was not a witness either before the grand jury or on the trial of the case. Davis was called as a witness on the hearing of the untimely filed amended motion for new trial.

Davis testified that he had been given money by two insurance companies to pay an informer who had given information leading to the recovery of the stolen machinery. Davis had promised his informer that his name would not be revealed, and Davis was concerned that if he revealed the informer’s name the informer would be harmed. At the time he testified, Davis said he did not know whether his informer was alive or dead. Davis testified that his informer said he had received the information given Davis from another person whose name the informer could not or would not tell Davis. Davis testified he was told by his informer that he did not personally participate in stealing, transporting, or concealing the stolen machinery. The informer did not tell Davis who stole or transported the machinery. Davis did not ask the informer if he knew the appellant, but Davis was of the opinion the informer did not know the appellant. The informer did not know who owned the land where the machinery was found. Davis testified that when he went to look for the stolen property he was not accompanied by the informer.

The appellant’s counsel at the hearing of the untimely motion for new trial offered in evidence a memorandum from a file of one of the insurance companies that had given the reward money to be paid to the informer. The court admitted this memorandum for a bill of exception. It purports to be a summary made by agents of the insurance company of what Davis had told them regarding the recovery of the machinery. The memorandum states that Davis was given information by an informer who was a thief incarcerated in the county jail. The informer contacted Davis, telling him he had information which could lead to the recovery of several pieces of stolen machinery. Davis received a verbal description of the location from the informer, but when he could not find the property the informer was taken from the jail and he helped find the stolen property. The informer named two men who actually stole part of the machinery. The informer said he followed the men while they transported one of the machines and picked them up after they abandoned the stolen vehicle on which they had transported the stolen machinery.

The testimony of Davis and the evidence presented at the hearing on the untimely filed motion for new trial would not require that the State disclose the name of the informer under the authority cited by the appellant. James v. State, supra, and Roviaro v. United States, supra. Since the appellant was not entitled to know the name of the informer, the State did not wrongfully suppress evidence of the existence and the name of the informer. The memorandum contained hearsay statements of which the author of the memorandum did not have first-hand knowledge, and if the memorandum was admissible at all, it would only have been admissible for the purpose of impeaching Davis. The trial court resolved any conflicts in the evidence and denied the appellant a new trial. The trial court did not abuse its discretion in denying the appellant a new trial.

The appellant’s remaining complaint is that the trial court erred in communicating with the jury without complying with the provisions of Article 36.27, V.A.C.C.P. The appellant urges that the court communicated with the jury without reading the communication in open court and without securing a waiver from the defendant as required by Article 36.27, V.A. C.C.P. There is a stipulation in the record, signed by the appellant and his counsel, which reads as follows;

“COMES NOW the Attorney for the State, the Attorney for the Defendant and the Defendant in the above styled and numbered cause, in open Court, and state that they have no objection to the Court allowing the jury to separate after the jury has begun its deliberations in either the guilt or innocence or punishment phase of the trial and further, that each has no objection and agree that if the jury should write a note requesting any information from the Court, that the Court may send its answer into the jury room for the jury, after giving all parties an opportunity to make objections, if any, to the same, without the necessity of bringing the jury into open Court and having the Court’s answer read to the jury." (Emphasis added.)

During jury deliberations the following written communication was received from the jury foreman:

“The Verdict Form states ‘receiving and concealing.’ We understood the law to be ‘receiving or concealing.’ Does the defendant have to be found guilty on just one or both counts?”

This communication was answered in writing by the trial judge as follows:

“You have been instructed in the charge now before you. You are not entitled to further instruction as to the law in connection with this question.”

At the same time that the jury’s communication was answered an additional verdict form was submitted to the jury that gave the jury the alternative of finding the appellant guilty of either receiving stolen property or concealing stolen property. The appellant’s counsel made written objections to the court furnishing the jury the additional form of the verdict. After receiving the additional verdict form, the jury had all possible forms of verdict authorized by the court’s charge, including one of “not guilty.” In view of the quoted stipulation it appears the appellant waived the procedure provided for in Article 36.27, V.A.C. C.P. We perceive no error.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    George Calvin YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 53642.
    Court of Criminal Appeals of Texas.
    June 1, 1977.
    Steven G. Condos, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Norman Kinne, John W. Booth and Brady W. Sparks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin. The punishment, enhanced by two prior felony convictions alleged and proved, was assessed by the court at life imprisonment following a guilty verdict.

On original submission the appeal was abated in order that appellant might have an opportunity to examine the appellate brief and file a pro se brief since his court-appointed counsel had concluded that the appeal was frivolous and filed a brief accordingly. The opinion abating the appeal stated that the trial court will require the parties to brief the question of whether the punishment was enhanced under Article 62, Vernon’s Ann.P.C., 1925; Article 725b, Vernon’s Ann.P.C., 1925; the Texas Controlled Substances Act or V.T.C.A., Penal Code, § 12.42(d). The question has now been briefed.

In the primary count the indictment alleged that appellant unlawfully possessed heroin on or about March 23,1973 in Dallas County. The enhancement paragraphs of the indictment alleged a 1957 conviction for possession of heroin in Dallas County and a 1942 conviction in the same county for burglary.

The indictment was returned on May 21, 1973, and appellant’s trial commenced on February 2, 1976.

Appellant, upon re-briefing, now urges the trial court erred in enhancing punishment under Article 63, Vernon’s Ann.P.C., 1925, as the prior conviction for possession of heroin was not available for use under Article 63, supra, because of the special enhancement provisions of Article 725(b), § 23(1), Vernon’s Ann.P.C., 1925. In support of his contention he cites Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971), and cases there cited.

Article 63, supra, provided:

“Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

Article 725b, supra (Uniform Narcotic Drug Act), provides in part in § 23(1) that:

“. . . upon the second or any subsequent conviction therefor shall be punished by confinement in the penitentiary for life or for any term of years not less than ten (10). . . .”

In Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976); it was written:

“. . . Likewise, in Granado v. State, 168 Tex.Cr.R. 525, 329 S.W.2d 864 (1959), it was held the Uniform Narcotic Drug Act (Article 725b, Vernon’s Ann. P.C.) was a special statute and that Article 63, Vernon’s Ann.P.C., a general statute, must yield to the special statute which provided penalties for second or subsequent offenses under the special statute. See also Willeford v. State, 454 S.W.2d 745 (Tex.Cr.App.1970); Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971); Bell v. State, 504 S.W.2d 498 (Tex.Cr.App.1974); Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Ex parte Giacona, 518 S.W.2d 832 (Tex.Cr.App.1975).”

If the punishment was assessed under Article 63, supra, appellant’s contention would have merit. However, in the record we find a motion entitled “Defendant’s Motion to Elect Punishment under Texas Controlled Substance Act,” which reads:

“To the Honorable Judge of Said Court:

“Comes now defendant and would show the Court that the offense herein alleged against defendant occurred prior to August 27, 1973. Defendant here and now files this his written election to be sentenced under the provisions of the Texas Controlled Substance Act.”

The motion was signed by the appellant and his counsel.

At the penalty hearing the court inquired of the appellant concerning such motion, and the appellant stated he elected to be punished under the Texas Controlled Substances Act rather than the “law applicable to this cause at the time it is alleged to have occurred.”

Heroin is a controlled substance found in Penalty Group 1, Texas Controlled Substances Act (Article 4476-15, Vernon’s Ann. C.S.), § 4.02(b)(2)(J). Unlawful possession of a controlled substance in Penalty Group 1 is a felony of the second degree. § 4.04(b)(1), Article 4476-15, supra. § 4.01(b)(2) of said Act provided:

“Felonies of the second degree. An individual adjudged guilty of a felony of the second degree shall be punished by confinement in the Texas Department of Corrections for a term of not more than 20 years or less than 2 years. In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.”

§ 6.01(c) of the Texas Controlled Substances Act provides:

“In a criminal action pending, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.”

V.T.C.A., Penal Code, § 1.03(b), reads:

“The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.”

Title 3 of the Penal Code applies to punishment, and thus the provisions of the Penal Code are applicable to the instant case.

V.T.C.A., Penal Code, § 12.33 of said Title 3, relates to second degree felony punishment and is exactly the same as the punishment for second degree felonies in the Texas Controlled Substances Act. Thus, the punishment in the Controlled Substances Act for a second degree felony is classified in accordance with this code.

V.T.C.A., Penal Code, § 12.42(d), provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

Inasmuch as the State proved the primary offense and then proved the two prior convictions alleged, the imposition of the life sentence under V.T.C.A., Penal Code, § 12.42(d), without benefit of the Indeterminate Sentence Law (Article 42.09, Vernon’s Ann.C.C.P.) was proper.

Appellant’s ground of error is overruled.

In his pro se brief appellant accuses the State of suppressing evidence favorable to him. He attaches to his brief copies of several newspaper articles, one dated prior to trial and the others after trial. One of the articles dealt with a Dallas police department “shakeup” and the transfer of two of the officers who testified against appellant.

Articles attached to the briefs are not properly before this court as evidence. Further, the articles do not reveal how they are material to the instant case. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), sets out the factors to be considered when the prosecution is alleged to have suppressed evidence. First, there must be suppression by the prosecution after a request by the defense. Second, the evidence’s favorable character for the defense must be shown. Third, the evidence must be material to the case. See also Smith v. State, 541 S.W.2d 831, 835 (Tex.Cr.App.1976).

There is in this record no showing that the State suppressed anything. There was no request by the defense and no showing that any evidence possessed by the State was favorable to the defense or material to the case. The contention is without merit.

Appellant’s remaining contention in his pro se brief concerning ineffective assistance of counsel has been considered and found to be without merit. The jurisprudence of this State will not be served by a discussion of this ground of error.

The judgment is affirmed.


text:
    Angel Olguin MENDOZA, Appellant, v. The STATE of Texas, Appellee,
    No. 53312.
    Court of Criminal Appeals of Texas.
    June 8, 1977.

      Jerry R. Prothro, Court appointed on appeal only, Midland, for appellant.
    James A. Mashburn, Dist. Atty., and Jack K. (Rusty) Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of sale of heroin. Article 725b, § 2(a), Vernon’s Ann.P.C., 1925. Punishment of ten (10) years was assessed by the jury.

Briefly, the facts reflect that on January 26, 1973 Officer Jim Mull, an undercover agent for the Department of Public Safety, was working in the Midland-Odessa area attempting to purchase illegal drugs. Mull testified that approximately 5:30 p. m. he spoke with one Gilbert, who directed him to a residence where he met Catarino Ybarra, also known as Trevino. As Mull was talking to Ybarra on the street, appellant drove up and inquired whether Mull wanted to buy some heroin. Mull answered that he did. Appellant then said that Mull would have to accompany him to his residence to get the heroin. Mull and Ybarra took Mull’s car and followed appellant’s car to the residence. While Mull waited in the car, appellant and Ybarra entered the residence and returned shortly. Appellant then handed Mull five papers containing a brown substance. Mull in turn gave him $25.00. Briefly thereafter, while the three were still together, Ybarra asked for and received $5.00 from Mull for leading him to appellant’s residence.

Appellant took the stand in his own defense and denied any participation in the sale. He claimed that he had been working until around 5:30 p. m. on the day of the alleged offense; that his employer had dropped him off after work at a grocery store approximately one mile from his residence; that he then walked home, where he spent the remainder of the evening.

Appellant’s first ground of error asserts that the trial court erred in refusing to dismiss the jury panel and grant a new trial following the district attorney’s opening remarks during voir dire examination. In particular, appellant complains of the following statements:

“ . . .We represent that nebulous concept called law enforcement, the right of the people in a community to be freé from crime. Whenever a crime is committed in this community against one citizen, in effect that’s a crime against all of us as members of this county . And our staff, myself being one of the members, has the responsibility of seeing that the individuals who are guilty of criminal offenses are brought to trial, and hopefully brought to justice.”

Immediately after these remarks were made, defense counsel moved that the entire panel be quashed. The motion was overruled; however, the court did admonish the district attorney to “be very careful what you say.”

• Appellant contends that the effect of the district attorney’s remarks was to advise the jury that the appellant had to be guilty in order to be tried. We disagree.

The conduct of the voir dire examination, including the opening remarks of counsel must rest largely within the sound discretion of the trial court. Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975); Article 35.-17, Vernon’s Ann.C.C.P.; 35 Tex.Jur.2d, Jury, § 117. The question thus becomes whether the court abused its discretion in refusing to quash the entire venire.

Although these remarks, if isolated, may have been somewhat misleading, the record reveals that the district attorney went on to clarify the presumption of innocence and the State’s burden of proof. In light of this clarification and the court’s prompt admonishment, it is unlikely that potential jurors would have been led to believe that the district attorney had a basis for his opinion unknown to the venire, or that appellant was necessarily guilty because he was being tried.

Since the remarks were general in nature and made at a stage of the proceedings before the jury was impaneled and evidence was adduced, dismissal of the venire was not warranted. The complete context of the district attorney’s opening remarks discloses no harmful error. Wilkerson v. State, 510 S.W.2d 589 (Tex.Cr.App.1974); Chapman v. State, 503 S.W.2d 237 (Tex.Cr.App.1974); and cf. Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973); Clayton v. State, 502 S.W.2d 755 (Tex.Cr.App.1973). We conclude, therefore, that there was no abuse of discretion. Appellant’s first ground of error is overruled.

Appellant complains in his second ground of error that the trial court erred in refusing to order the State to provide the appellant a copy of mail receipt records maintained by the Department of Public Safety laboratory in Austin.

At trial, D.P.S. chemist Harrison, a witness for the State, admitted on cross-examination that he had no independent recollection of receiving the heroin samples in the mail. Rather, the chemist testified that his only means of ascertaining whether he was present when the samples were received was by consulting records kept at the Austin laboratory specifying those persons present when the samples were submitted and placed in a vault. He did not bring these records with him when he testified, and apparently appellant made no attempt to subpoena them for use at trial.

Appellant claims that he was entitled to a copy of these receipt records under either of two alternative rationales: the “Gaskin Rule” or the “use before the jury” rule.

The “Gaskin Rule” provides that where a State’s witness has made a report or has given a statement prior to testifying, the defendant, after a timely request, is entitled to inspect and use such prior available report or statement for cross-examination and impeachment purposes, even though the witness may not have used the instrument to refresh his memory. Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1962); Lewis v. State, 481 S.W.2d 804 (Tex.Cr.App.1972); Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972). If a defendant invokes the “Gaskin Rule,” it is error for the trial judge to fail to require production of the statement. However, harmfulness of the error is determined by considering whether the accused was thereby denied effective cross-examination or possible impeachment of the witness. Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (Concurring Opinion).

This court’s decisions subsequent to Gaskin have made the application of the rule dependent on certain conditions. For example, the statement must have been made by the State’s witness himself. Gilbreath v. State, 500 S.W.2d 527 (Tex.Cr.App.1973); Artell v. State, 372 S.W.2d 944 (Tex.Cr.App.1963). Additionally, the accused must make an effort to properly incorporate in the appellate record the statement or report he claimed he was deprived of. Gilbreath v. State, supra; Lewis v. State, supra; Leal v. State, 442 S.W.2d 736 (Tex.Cr.App.1969).

The record in the instant case fails to reveal that either of these conditions was satisfied. Although it is questionable whether mail receipts are “statements” within the meaning of Gaskin, the receipts here were prepared by those persons present when the samples were received and opened. Thus, it does not appear that the “statement” was necessarily made by chemist Harrison who testified at trial. The record further fails to show that appellant took adequate steps to include the receipts in the appellate record. For these reasons, the “Gaskin Rule” does not apply.

Alternatively, appellant asserts that the “use before the jury” rule entitles him to access to the mail receipts. Under this rule, a defendant is entitled to inspect, upon timely request, any document, instrument or statement which has been used by the State before the jury in such a way that its contents become an issue. Sewell v. State, 367 S.W.2d 349 (Tex.Cr.App.1963). The trial court’s failure to permit or compel such inspection is reversible error, and a showing of harm resulting from the error is not required. White v. State, 478 S.W.2d 506 (Tex.Cr.App.1972).

Like the “Gaskin Rule,” this rule is not applicable unless certain conditions are met. First, the rule comes into play only through the State’s use of the document or statement at trial. Haywood v. State, 507 S.W.2d 756 (Tex.Cr.App.1974). Second, there must be use of the instrument or statement before the jury in such a way that its contents become an issue.

This court has held that the definition of “use before the jury” includes showing a document to a witness who is on the stand, permitting a witness to identify a document, or reading portions of a document aloud to a jury. Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464 (1933); Bailey v. State, 365 S.W.2d 170 (Tex.Cr.App.1963). But counsel for the State must in some way inform the witness that the document or statement is being referred to during the examination. Rose v. State, 427 S.W.2d 609 (Tex.Cr.App.1968).

On the other hand, we have held that there was no “use before the jury” where a State’s witness previously made notations concerning an arrest but failed to bring these notes to trial or testify from them. In such a case, the State did not direct the witness’ attention to the document, nor was any indication made to the jury that the document was being used as the basis for the examination. See Jones v. State, 493 S.W.2d 933 (Tex.Cr.App.1973), and cf. White v. State, supra.

Appellant has failed to show that there was any use of the mail receipts before the jury by the State. Chemist Harrison did not bring the receipts to trial or testify from them. The State never directed his attention to the receipts during the examination, nor is there anything to suggest that the State in any way indicated to the jury that the receipts were a basis for the examination. Accordingly, we hold that the “use before the jury” rule did not apply.

Here, the Midland narcotics agent examined the package in which he submitted the evidence to Austin. He stated that the foil packets were the same as those sent in a sealed envelope to the Austin laboratory. Chemist Harrison then testified that the envelope containing the packets was received in a sealed condition and that it remained sealed until he conducted his lab analysis. Under our holdings in Kilburn v. State, 490 S.W.2d 551 (Tex.Cr.App.1973), and Norris v. State, 507 S.W.2d 796 (Tex.Cr.App.1974), proof of the chain of custody was thus sufficient for admission of State’s Exhibits 1 through 4. Any objections appellant may have had concerning the chain of custody went to the weight to be given this evidence and not its admissibility. Norris v. State, supra; Bueno v. State, 501 S.W.2d 339 (Tex.Cr.App.1973).

Grounds of error three and four concern the trial court’s admission of evidence of the appellant’s prior felony conviction at the punishment phase of the trial. In his third ground, appellant argues that the prior conviction was too remote and therefore inadmissible. Although appellant refers to the general 10-year time limit regarding remoteness of prior convictions for impeachment purposes, e.g., McClendon v. State, 509 S.W.2d 851 (Tex.Cr.App.1974); Penix v. State, 488 S.W.2d 86 (Tex.Cr.App.1972), he fails to acknowledge this court’s established holdings that the law places no remoteness limitations on past convictions offered to show the prior criminal record of an accused under Article 37.07, Vernon’s Ann.C.C.P. Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Lott v. State, 480 S.W.2d 743 (Tex.Cr.App.1972); Rose v. State, 470 S.W.2d 198 (Tex.Cr.App.1971); Ingram v. State, 426 S.W.2d 877 (Tex.Cr.App.1968).

As to the other aspect of this ground of error, which renders it multifarious and not in accordance with Article 40.09, § 9, Vernon’s Ann.C.C.P., appellant claims the prior conviction should not have been admitted into evidence since the probation granted in the prior conviction was subsequently revoked in revocation proceedings where he was without the assistance of counsel in violation of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). See also Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968) (Opinion on Appellant’s Motion for Rehearing), and Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973), holding Mempa v. Rhay, supra, to be retroactive.

The burden of proof was on the appellant to show that he was denied the right to counsel, or that he was without counsel, was indigent and did not voluntarily waive his right to counsel. Boss v. State, 489 S.W.2d 580 (Tex.Cr.App.1972); Clark v. State, 496 S.W.2d 83 (Tex.Cr.App.1973). It is true that the order revoking probation and the sentence were silent as to whether appellant was represented by counsel. This alone is insufficient to support appellant’s contention. Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973); Mitchell v. State, 494 S.W.2d 865 (Tex.Cr.App.1973). The appellant offered no other evidence. His contention is without merit in light of the record before us.

Appellant’s fourth ground of error asserts that the trial court should not have admitted the prior conviction evidence during the punishment phase of the trial because the State allegedly failed to identify the appellant as the person previously convicted. The State offered authenticated prison records of the appellant from the Texas Department of Corrections, including certified copies of the judgment and sentence, etc. The State also offered identification testimony of the former deputy district clerk of Midland County that she was present in the courtroom in 1957 when appellant was convicted. Appellant made no objection to this testimony and did not object to the introduction of the prior conviction (pen packet) on the ground now urged on appeal. Therefore, nothing ⅛ presented for review on appeal. Vasquez v. State, 491 S.W.2d 173 (Tex.Cr.App.1973); Chaney v. State, 494 S.W.2d 813 (Tex.Cr.App.1973); Howard v. State, 453 S.W.2d 150 (Tex.Cr.App.1970).

Appellant’s principal contention in his fifth ground of error is that the trial court committed fundamental error in allowing the State to ask the following question during cross-examination of appellant’s character witness:

“Q. Sir, have you heard rumors that the Defendant at a later time had his probation revoked and went to the penitentiary?”
“A. No, sir.”

Appellant claims the previous revocation proceedings were void since he allegedly was not represented by counsel at that time, in violation of the retroactive constitutional rule enunciated by the U. S. Supreme Court in Mempa v. Rhay, supra, and by this court in such cases as Crawford v. State, supra, and Ex parte Shivers, supra.

This court has consistently held that in order to complain of denial of federally guaranteed constitutional rights, there must be an objection in the trial court. Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976); Gibson v. State, 516 S.W.2d 406 (Tex.Cr.App.1974); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974). Appellant failed to interpose an objection when the State asked the question. Nor can appellant rely solely on his motion in limine to preserve error. Poore v. State, 524 S.W.2d 294 (Tex.Cr.App.1975); Brazzell v. State, 481 S.W.2d 130 (Tex.Cr.App.1972). Therefore, no error was preserved.

Further, as earlier noted, the burden was upon the appellant to show he was without counsel at the time of the revocation hearing and he failed to sustain this burden.

In absence of an objection to the “have you heard” question, nothing is presented for review.

Appellant’s fifth ground of error is overruled.

In his sixth ground of error, appellant argues that it was error for the trial court to grant the State’s motion in limine concerning the testimony of Caterino Ybar-ra, a co-indictee and potential defense witness. The State sought exclusion of Ybar-ra’s testimony on the ground that he had asserted his Fifth Amendment privilege on two separate occasions prior to the hearing on the State’s motion and was expected to do likewise in front of the jury if called as a defense witness. Appellant claims that the effect of granting the motion in limine was a denial of his right to compulsory process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution; Article I, § 10 of the Texas Constitution, and Article 1.05, Vernon’s Ann.C.C.P. Appellant further argues that he has been denied due process of law under the rationale of Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). We disagree on both counts.

In Rodriquez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974), we reiterated the general rule that when a witness, other than the accused, declines to testify on the ground that his answers would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or to the accused. The rationale is that in refusing to answer a question the witness is exercising a personal constitutional right which should neither help nor harm any third person. Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972). In Rodriguez, we held it was not error for the trial court to refuse appellant’s motion to have witnesses invoke the Fifth Amendment in the presence of the jury-

The record in the instant case shows that defense counsel was well aware before trial of Ybarra’s intent not to testify. Therefore, appellant’s argument that the court should not have granted the State’s motion in limine is tantamount to an assertion that Ybarra should have been allowed to invoke the Fifth Amendment before the jury. Such conduct would have been improper, and the trial court did not err in sustaining the State’s motion which sought to prevent this occurrence. Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); Rodriguez v. State, supra; Glasper v. State, supra.

Appellant’s reliance on Washington v. State, supra, is misplaced. That ease held unconstitutional prior Article 82 of Vernon’s Ann.Tex.P.C., 1925, which denied an accused the right to call as defense witnesses persons charged as principals. The decision in Washington rested on the ground of an arbitrary statutory exclusion of potential witnesses. The rule of such cases as Rodriguez v. State, supra; Glasper v. State, supra; and Victoria v. State, supra, rests on a different footing: that of insuring that a third party witness’ invocation of the Fifth Amendment has a neutral effect on the accused and the State. While the expansive dicta in Washington concerning a defendant’s right to compulsory process may have been appropriate in the context of the facts of that case, it is not controlling here.

Appellant’s sixth ground of error is overruled.

Appellant’s final ground of error complains that the trial court erred in charging the jury on the law of principals. The State offered evidence to show that Catari-no Ybarra, also known as Trevino, and Mull had followed appellant in Mull’s car to appellant’s residence; that appellant and Ybarra had then entered the residence and returned to the car; that appellant handed the heroin to Mull; that Mull then handed $25.00 to appellant in exchange for the heroin; and that Ybarra then asked for and was given $5.00 by Mull for leading Mull to appellant’s residence. Appellant claims there was insufficient evidence to support the trial court’s charge on principals. We hold that the evidence was sufficient to support such a charge.

While an agreement of parties to act together in a common design can seldom be proven by words, reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act. Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975). Further, in determining whether a party was participating as a principal, the courts may look to events before, during and after the commission of the offense. Bush v. State, supra; Holloway v. State, supra.

While mere presence at the scene of the commission of the offense does not make one a principal, it is a circumstance tending to prove that person is a principal and, taken with other facts, may be sufficient to show that he was a participant. Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974); Locke v. State, 484 S.W.2d 918 (Tex.Cr.App.1972); Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976).

It is well established that when A actually commits the offense, but B is present, knowing the unlawful intent, and aids or encourages by words or acts, then B is a principal. B is also a principal when he advises or agrees to the commission of the offense and is present when the same is committed, whether he aids in commission of the offense or not. Bush v. State, supra, and cf. Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976).

The State’s evidence in the case at bar raised a genuine issue as to whether appellant and Ybarra had acted together to consummate the actual sale. Ybarra appears to have acted as a broker for the transaction, and his presence with Mull before and during the sale was thus a causal connection. Mull acquired the heroin from appellant with Ybarra standing nearby after having accompanied appellant into the house. Ybarra was then paid a commission. We conclude that these facts circumstantially show appellant and Ybarra were acting together, with Ybarra necessarily having a part in the accomplishment of the offense. There being evidence of such concerted activity, the court’s charge concerning principals was proper. Lawrence v. State, 477 S.W.2d 275 (Tex.Cr.App.1972); Stephens v. State, 522 S.W.2d 924 (Tex.Cr.App.1975).

Appellant’s ground of error is overruled. The judgment of the trial court is affirmed.

      . It would have been better practice if the appellant had first moved to have the jury instructed to disregard the statements, then move to quash the jury panel if not satisfied with the instruction. Cf. Vela v. State, 516 S.W.2d 176 (Tex.Cr.App.1974).


text:
    Vito Alecio RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53400, 53401.
    Court of Criminal Appeals of Texas.
    June 8, 1977.
    Rehearing Denied July 6, 1977.

      Daniel V. Alfaro, Albert R. Huerta and Juan P. Gonzalez, Corpus Christi, for appellant.
    Oscar Mclnnis, Dist. Atty., Tom Beery, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These appeals are from an order revoking probation and from a conviction for the possession of heroin.

On December 11, 1973, after waiving a jury trial, the appellant entered a plea of guilty to the offense of possession of marihuana; the punishment was imprisonment for 5 years and a fine of $2,000. The imposition of sentence was suspended, and the appellant was granted probation. The State’s motion to revoke probation alleged that the appellant possessed and delivered heroin to an undercover agent on August 14, 1975, in violation of the condition of probation that he would commit no offense against the laws of this state. The motion to revoke appellant’s probation was heard by the trial court, and the appellant’s trial for possessing and delivering heroin was heard by the jury, at the same time.

After hearing the evidence the court revoked the appellant’s probation and pronounced sentence. After it found the appellant guilty of possessing heroin, the jury assessed punishment of imprisonment for 13 years and a fine of $4,500. When the court sentenced the appellant, the punishment assessed for the possession of heroin was cumulated with the punishment assessed for possession of marihuana.

The appellant urges that: (1) the evidence is not sufficient to sustain either the conviction for possession of heroin or the order revoking probation; (2) hearsay evidence purportedly admitted under the co-conspirator exception to the hearsay rule was erroneously admitted; (3) the trial court erred in not granting a motion for mistrial after a prosecutor, in the presence of the jury, called defense counsel a liar; (4) a prosecutor’s improper argument required reversal of the judgment; (5) the trial court’s threat to hold the appellant’s counsel in contempt resulted in depriving the appellant of a fair trial and in depriving the appellant of effective assistance of counsel; (6) his counsel was erroneously denied the right to cross-examine co-defendants about the disposition of their cases; (7) the trial court erred in cumulat-ing the punishment for possession of heroin and the punishment for possession of marihuana; and (8) the trial court erred in not specifying its reasons for revoking the appellant’s probation.

We first discuss the sufficiency of the evidence. A Department of Public Safety undercover agent, Robert Fullerton, discussed with Jose Manuel Guerro the purchase of a quantity of heroin. Later Fullerton and fellow undercover agent Tom Jones met Guerro and Marguireto Garza Alma-guer; Almaguer showed the undercover agents a sample of heroin and quoted them a sale price for the heroin of $1,350 per ounce. The next day, with Officer Chris Trevino hidden in the trunk of their car, the undercover agents picked up Guerro and Almaguer. The undercover agents showed Almaguer $50,000 in cash, and they told him they were prepared to close the deal for thirty-six ounces of heroin. Jones then placed the money in the trunk of the agent’s car where Trevino was hidden. Fullerton stayed with Guerro and Guerro’s companion, David Davilla; Jones, in the agent’s car, accompanied by Almaguer, drove into the country to accept delivery of the heroin. After driving back and forth on the highway, Jones, directed by Alma-guer, parked the car near a vacant trailer house. Then a Mercury automobile and a Plymouth automobile stopped on the road about one hundred yards from Jones’ ear. The driver of the Plymouth, Almador Ayla, entered the Mercury, which was driven by the appellant, and they drove to and parked behind Jones’ car. The appellant asked Al-maguer if “everything was ready.” Alma-guer told the appellant everything was ready and that the money was in the trunk of Jones’ ear. The appellant took Ayla back to the Plymouth, and they returned with both automobiles which they parked near Jones’ car. Ayla got out of the Plymouth, and as he started to walk toward Jones’ car the appellant told Ayla to “get the stuff.” Ayla opened the trunk of the Plymouth, and, carrying a paper bag, he again started to walk toward Jones’ car. Jones opened the trunk of his car; Trevino sprang out of the trunk; and Jones and Trevino placed Ayla, Guerro and the appellant under arrest for possession and delivery of heroin. Ayla dropped the paper bag in which there were thirty-six smaller bags. These bags were seized by Jones and Trevino; when the contents of these bags were analyzed by a chemist they were found to contain thirty-two ounces of thirty-two percent pure heroin.

The appellant denied that he had any knowledge of the purchase and sale of the heroin; he testified that he had driven to the scene at Ayla’s request to pick up Ayla after Ayla had left his car at that place. The court, as the trier of the facts on the motion for revocation of probation, found beyond a reasonable doubt that the appellant possessed and delivered heroin; the court then revoked appellant’s probation. The jury resolved conflicts in the evidence and found the appellant guilty of possession of heroin. The evidence is sufficient to support the jury’s verdict of guilty and the court’s order revoking probation.

The appellant most strenuously argues that the trial court erred in admitting the testimony of the undercover agents concerning their negotiations for the purchase of the heroin. The appellant was not present when the officers had these conversations with Guerro and Almaguer. The appellant asserts that this hearsay evidence was not properly admitted under the co-conspirator exception to the hearsay rule, because the State failed to prove that the appellant was a co-conspirator and failed to show the appellant aided in the furtherance of the conspiracy before the hearsay testimony was admitted.

The co-conspirator exception to the hearsay rule is not limited to prosecutions for a conspiracy, but it is a rule of evidence applicable to the prosecution of any offense in which co-conspirators participate. E. g. Phelps v. State, 462 S.W.2d 310 (Tex.Cr.App.1970); United States v. Mendoza, 473 F.2d 692 (5th Cir. 1972).

Proof of a defendant’s participation in and the existence of the conspiracy need not be made before the hearsay statements of a co-conspirator are admitted. In other words, the order of proof is not material. Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974); United States v. Martinez, 481 F.2d 214 (5th Cir. 1973). Even though the appellant may not have joined the conspiracy until after the conversations about which he complains occurred, the conversations were in furtherance of the conspiracy, and they were admissible. Smith v. State, 21 Tex.App. 96, 17 S.W. 560 (1886); West v. State, 134 Tex.Cr.R. 565, 116 S.W.2d 726 (1938); Drakes v. State, 505 S.W.2d 892 (Tex.Cr.App.1974).

We need not reiterate the evidence already summarized; even though the appellant attempted to cast doubt on this evidence, the words and actions attributed to the appellant at the time of the attempt to deliver the heroin are sufficient to prove that the appellant was a co-conspirator in this criminal offense. Since the evidence is sufficient to prove the appellant was a co-conspirator the hearsay testimony concerning the conversations between the undercover agents and Guerro and Almaguer was admissible, and the trial court did not err in admitting that testimony.

The appellant next complains of the alleged misconduct of one of the prosecutors. Defense counsel, while cross-examining one of the undercover agents asked: “And, you know that Mr. Guerro has pled guilty in this case and received five years?” Immediately, the prosecutor reacted, saying: “I am going to object to that lie, Your Honor. That is not the truth. He has not pled guilty and received five years.” The statement made by the defense counsel in the form of a question brought before the jury a matter which was not admissible. The response made by the prosecutor was also improper. Following this episode, the trial court, in chambers, admonished and instructed both counsel concerning their conduct. The court then instructed the jury to disregard the question asked and the objection made. Defense counsel made no further objections at the time the court instructed the jury. This was an unfortunate incident which should not have occurred even in the heat of trial. However, the judge’s prompt action and his instructions to the jury adequately protected the interest of the appellant.

At the punishment phase of the trial it appears that it was agreed that all of the argument would not be reported. Only a part of the prosecutor’s closing argument was reported. The appellant complains that the following argument was improper:

“[PROSECUTOR]: The Texas Department of Public Safety has brought these agents before this Court. They have done their job. It now becomes the job of the Texas Department of Corrections to do its job. I hope, as an attorney for the State of Texas that I have done my job and I also hope I have not offended you in any way. I think that Agent Fullerton and Agent Jones have done an excellent job in this case. They caught him with over two pounds of heroin with a street value of over Two Hundred Thousand Dollars. I think that all the people that have been involved in this case, Chris Trevino of the Cameron County Organized Crime Task Force, Agents Fullerton and Jones, and all of the other people right up to the District Attorney’s Office has tried to do as good a job as possible and I hope that we haven’t offended you in a job that we have done. Now, you the jury in this case, are the last link of this chain of law enforcers in the County. By your verdict, you have found this man guilty of possession of heroin. The Jury can be the strongest link or the weakest link in this chain of law enforcement.
“[DEFENSE ATTORNEY]: That is improper jury argument. The Jury is not here to help law enforcement. They are here to give a man a fair trial and we object to that argument and consider it error and we request the Court to instruct the Jury to disregard it and notwithstanding that, Your Honor, we would respectfully ask this Court to declare a mistrial.
“THE COURT: Overruled.
“[DEFENSE ATTORNEY]: Note our exception.
“[PROSECUTOR]: I submit to you that you can be the strongest or weakest link in this chain and you can give this man a two year sentence in the Texas Department of Corrections but I am suggesting to you that you can knock the dope peddlers on the head by giving this man 20 years in the penitentiary and a $10,000 fine. Then, when the people out there hear this they will think twice about possessing two pounds of heroin and that is what I mean by you, ladies and gentlemen, being the strongest link in this chain of law enforcement in the State of Texas.
“[DEFENSE ATTORNEY]: Your Honor, we object to that again and ask for a mistrial.
“THE COURT: Overruled.
“[DEFENSE ATTORNEY]: Note our exception.”

On appeal the appellant has expanded his complaint beyond the objections that he made at the time of trial. He now complains:

“The argument above was improper because it brought in evidence which was not before the Jury. It brought out the following statements: First, that they had caught the Defendant with two pounds of heroin. Second, that the street value of the heroin was over $200,000.00, and third, and perhaps the most important, is the statement of the prosecutor to the Jury that they were a part of the law enforcement chain. This statement as to the Jury being part of the law enforcement section of the Government was made without any foundation or evidence and is clearly prejudicial against the Appellant.”

Even if this matter had been preserved for review by as specific an objection made at the time of trial, as is argued on appeal, we could not agree with the appellant’s contention that the prosecutor’s argument was not based on the evidence in this record.

The assertions of fact are supported by the record and it appears that the prosecutor’s argument was a proper plea for law enforcement. The trial court properly overruled the objection. See Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Chatman v. State, 509 S.W.2d 868 (Tex.Cr.App.1974); Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974).

We cannot agree with the appellant’s argument that he was deprived of a fair trial and that he was deprived of the effective assistance of counsel, by the trial judge who the appellant alleges continually threatened to hold his trial counsel in contempt. On several occasions, usually in chambers, the trial judge did remind the defense counsel that the failure to observe his rulings might result in contempt proceedings. The trial judge firmly and properly controlled both counsel for the State and counsel for the appellant during the trial. Both the appellant and the State were vigorously and well represented. During the trial defense counsel complimented the trial judge on the manner in which the trial was conducted. This complaint is without merit.

The appellant also complains that the trial court would not permit him to elicit before the jury testimony showing the disposition of the charges against the co-defendants. None of the co-defendants were called as witnesses by the State, and a co-defendant called by the defendant refused to testify after invoking his Fifth Amendment privilege. The disposition of the prosecution against co-defendants never became admissible, and the trial court properly refused to let defense counsel introduce such evidence before the jury. See Adams v. State, 531 S.W.2d 626 (Tex.Cr.App.1976); Walker v. State, 530 S.W.2d 572 (Tex.Cr.App.1975); Tucker v. State, 461 S.W.2d 630 (Tex.Cr.App.1971).

The cumulation of the punishment for the possession of heroin with the punishment for the possession of marihuana was within the discretion of the trial court. That the evidence supporting the conviction for the possession of heroin was also used as a grounds for revoking probation does not constitute double jeopardy. See Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973).

The remaining complaint is that the trial judge did not give his reasons for revoking probation. Immediately after hearing the evidence and after the jury was retired from the courtroom, the trial judge announced he would revoke probation. He stated that he found, beyond a reasonable doubt, the appellant was guilty of the offense charged. Although the appellant’s counsel protested that the court should wait until the jury had returned its verdict before he revoked probation, counsel did not request more specific findings. It appears the court had, and announced, a sufficiently specific reason for revoking probation. In any event, the appellant did not at the time of trial request more specific findings of fact. See Valdez v. State, 508 S.W.2d 842 (Tex.Cr .App.1974).

The judgment is affirmed.

Opinion approved by the Court.