author: EWELL, Judge.

text:
    Willie H. LASSETTER, Plaintiff-Appellant, v. Eunice Inez HENSON, Executrix of the Estate of John C. Henson, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, Sitting at Knoxville.
    July 6, 1979.
    Certiorari Denied by Supreme Court Aug. 27, 1979.

      John K. Morgan, Hugh P. Garner, Morgan, Garner, Wood & Guthrie, Chattanooga, for plaintiff-appellant.

      Raymond H. Moseley, Humphreys, Hutcheson & Moseley, Chattanooga, for defendant-appellee.
   EWELL, Judge.

This is an appeal from a judgment, based on a jury’s verdict, dismissing an action for personal injuries.

Willie H. Lassetter filed suit against Eunice Inez Henson, executrix of the estate of John C. Henson, for personal injuries received in an airplane crash on January 9, 1975. Lassetter was a guest passenger in the four passenger Piper aircraft owned and flown by John C. Henson at the time of the accident in which Henson was killed. Eunice Inez Henson, widow of John C. Henson, was duly qualified as executrix of his estate. Plaintiff charged that Henson negligently operated the aircraft in several particulars specified in the complaint and also relied upon the doctrine of res ipsa loquitur.

The defendant filed an answer denying negligence on the part of Henson in the operation of the aircraft and averring that the crash was caused by the malfunctioning of one or more of the instruments in the aircraft combined with the failure of the approach control operators at the Chattanooga Airport to properly advise Henson on his altitude during final approach procedures. The defendant also denied that the doctrine of res ipsa loquitur was applicable and insisted that Lassetter assumed the risk and was guilty of contributory negligence in sleeping when he knew an instrument approach was to be made.

On trial the jury returned a verdict in favor of the defendant, and judgment was entered dismissing plaintiff’s suit.

Plaintiff has appealed assigning six errors of the Trial Court. In his first three assignments plaintiff insists that there was no evidence to support the verdict of the jury; that the verdict of the jury was contrary to the weight and preponderance of the evidence; and that the verdict was contrary to the law as charged by the Court and the evidence. We will address these three assignments jointly.

Where, as in this case, the appeal is from a judgment based on a jury’s verdict, we do not weigh evidence nor pass upon credibility of witnesses, but determine only if there is any material evidence in the record which supports the verdict. In reviewing evidence, in order to safeguard the constitutional right of trial by jury, we are required to “take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict”. D. M. Rose & Co. v. Synder, 185 Tenn. 499, 206 S.W.2d 897 (1947); Kidd v. Dunn, 499 S.W.2d 898 (Tenn.Ct.App.1973).

The proof in this case shows that John C. Henson was a volunteer associate probation officer with the Juvenile Court of Hamilton County fully licensed and qualified to fly the aircraft in question under the circumstances existing at the time of the crash. On January 9,1975, he flew three of the employees of the Hamilton County Juvenile Court from Chattanooga to Memphis to meet with other juvenile personnel. In the plane with Henson were Willie Lasset-ter, the plaintiff; James W. Hammonds; and Minnie Lee West. After the meeting they left Memphis at approximately 4:30 p. m. Eastern Standard Time. The crash occurred at 6:36 p. m. Eastern Standard Time as the aircraft was approaching Lovell Field in Chattanooga to land on runway 20. The site of the crash was approximately 4.5 miles from the airport at a point where the safe minimum altitude was 1,560 feet. At an altitude of approximately 850 feet the aircraft struck the tops of trees.

The plane had been flown from Memphis to Chattanooga at an altitude of approximately 7,000 feet and had descended to lower altitudes at the direction of the air control tower at Lovell Field as it approached Chattanooga. The temperature at ground level at Lovell Field was 47 degrees Farenheit and at 7,000 feet would have been approximately 25 degrees. Because of fog and darkness it was impossible to see outside of the aircraft. The situation was described by passenger Hammonds, witness for the plaintiff, as follows:

There was no way to see anything outside of the cabin. It was as if you were flying with the windows painted black. You had no sensation of anything outside the cabin, only the vibration of the plane and the sound of the engine. So, you were not aware of any surroundings.

Henson was attempting what is commonly referred to as an “instrument landing”. He was in radio contact with the air control tower at Lovell Field and was relying upon the instructions from Lovell Field as well as the instruments within the aircraft. Specifically, he was relying upon the altimeter in the aircraft to determine his altitude at any given point in time. Since the air control tower was not equipped to determine the altitude of the aircraft on radar and atmospheric conditions were such as to preclude visual observation, the altimeter was Henson’s sole means of determining altitude. As Henson attempted to land, both passenger Hammonds, who was seated behind Henson, and passenger West, who was seated behind Lassetter, were awake and observed that which occurred within the aircraft. Lassetter, who was seated to the right of Henson, had gone to sleep shortly after departing Memphis and did not wake up until he was in the hospital.

There is no question but that the crash occurred because the aircraft was being flown at too low an altitude. The dominant issue litigated was whether the aircraft was being so flown as a result of the negligence of Henson, as insisted by the plaintiff, or because of a malfunctioning altimeter reflecting an erroneous altitude, as insisted by the defendant.

The plaintiff in his complaint relied upon the doctrine of res ipsa loquitur but also charged Henson with specific acts of negligence including the diverting of his attention from the operation of the aircraft and misreading and/or failing to read the instruments in the aircraft. The testimony of both passenger Hammonds and passenger West was received into evidence as a part of the plaintiff’s proof, but plaintiff was unable to adduce any direct evidence of negligence on the part of Henson. One expert witness called by the plaintiff testified that in his opinion the crash occurred as a result of the negligence of Henson and not because of a malfunction of the altimeter. This evidence together with the circumstantial evidence of the crash of the aircraft while Henson was at the controls (res ipsa loquitur) constituted, in essence, plaintiff’s case.

The defendant built her defense on the theory that the altimeter had malfunctioned misleading Henson into believing that the aircraft was at a substantially higher altitude than was actually the case. It was proven that any form of restriction in the static line which feeds the altimeter with outside static air pressure will cause it to have a significant lag in following the altitude in a descent. It was further proven that this particular aircraft was equipped with aluminum pitot tubes which are conducive to the condensation of water when the aircraft is flown from below freezing temperatures into above freezing temperatures. It was theorized that, as Henson brought the aircraft from an altitude of 7,000 feet, where the temperature was below freezing, to an altitude of less than 1,000 feet, where the temperature was above freezing, there was a condensation of water within the static line creating a restriction or partial blockage causing the altimeter to lag so that Henson, relying solely upon the altimeter, thought he was flying at a substantially higher altitude than was actually the case. This theory was advanced by three expert witnesses as being the cause of the crash rather than the negligence of Henson. It was also shown that if this in fact did occur Henson would have had no warning or reason to doubt or question the reliability of the altimeter.

The defendant was unable to produce any direct evidence that the altimeter malfunctioned, but each of the expert witnesses so expressed his opinion based upon an analysis of all available information. There was direct, uncontroverted proof to the effect that upon leaving Memphis all parties in the aircraft discussed the anticipated inclement weather conditions which might prevail in Chattanooga upon their arrival and agreed that Henson would make one approach to land and, if unsuccessful, would fly to Nashville for the night. It was un-controverted that following this conversation the plaintiff went to sleep and did not awaken before the crash.

The jury returned a general verdict for the defendant, and in our opinion there was material evidence in the record which supports the verdict. Therefore, the first three assignments of error are overruled.

In his fourth assignment of error plaintiff insists that the Trial Court erroneously instructed the jury on the doctrine of res ipsa loquitur. The relevant portion of the charge is as follows:

And there is — the Plaintiff in this case has sued under two different theories. What I have just sued — or charged you— is what is known as the theory of negligence. He has also sued under the theory which is called res ipsa loquitur. The Court will define that for you.
A statement of the doctrine of res ipsa loquitur is this: Where the thing causing the harm; that is, the airplane in this case, is shown to be under the management of the Defendant in this case, Mr. Henson, and the accident is such that in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the Defendant that the accident arose from the want of care.
Now, the maxim of res ipsa loquitur means that the facts of the occurrence evidence negligence; that circumstances unexplained justify an inference of negligence.
This principal of proof applied, a case of res ipsa loquitur does not differ from an ordinary case of circumstantial evidence. Res ipsa loquitur is not an arbitrary rule, but rather a common sense appraisal of a probative finding of circumstantial evidence. A res ipsa loquitur case is a circumstantial evidence case which permits the Jury to infer negligence from the mere occurrence of the accident itself. It warrants an inference of negligence, which the Jury may draw or you may not draw as your judgment dictates.
It raises a presumption of negligence which requires the Defendant to come forward to prove, to explain, or show, or to rebut the presumption.

Plaintiff insists that the foregoing was erroneous in that the Trial Court failed to instruct the jury that “should the defendant fail in coming forward to explain or show, or rebut the presumption of negligence, then the plaintiff has carried the burden of establishing negligence by virtue of the doctrine of res ipsa loquitur”. However, he submitted no special request to this effect.

Under the circumstances of this case this assignment is theoretical only. More than a day of the trial was consumed by the defendant in the presentation of expert witnesses whose testimony was offered for the specific purpose of rebutting the presumption of negligence. It could not have been error for the Court to fail to charge the jury as to their duty in the event the defendant had failed so to do. Further, as stated hereafter in our discussion of the fifth assignment, we do not find that the Trial Court, in any event, should have charged the jury as insisted by plaintiff. Accordingly, the fourth assignment of error is overruled.

At the conclusion of the charge in chief the Trial Judge invited the respective attorneys to submit special requests. The attorney for the plaintiff presented none, and the attorney for the defendant offered two. Thereafter, further instructions were given to the jury as follows:

With regard to — this is in reference to the res ipsa loquitur doctrine. I think I explained this, but in case I didn’t — with regard to the inference that the pilot of the plane was negligent merely because the crash occurred, you’re not required to return a verdict for the Plaintiff merely because of such inference of negligence. Rather you should weigh the evidence presented by this inference and you will have to decide whether it is sufficient for you to find that the Plaintiff has proved by the preponderance of evidence that the pilot of the aircraft was guilty of negligence; that is, whether the preponderance as such has shifted the burden of (sic:to) the Defendant to come forth and explain with reasonable certainty why this aircraft accident occurred.
Under this theory of negligence in this case that the Court has charged you about, regardless of any inference of negligence — when you’re talking about a negligence action as opposed to res ipsa loquitur, you may draw from the facts. With regards to any inference of negligence drawn from the fact the airplane crashed, the burden of proof in this case is upon the Plaintiff. And I think that Mr. Garner sufficiently stated that for you at the beginning.
The burden of proof is not on the Defendant, and the Plaintiff must prove by a preponderance of the evidence that the pilot of the aircraft was guilty of negligence, in order to recover under the theory of negligence.
The theory of res ipsa loquitur, of course, is a circumstantial matter that raises the inference of negligence. Of course, you may decide that it does, or you may decide that it does not. If it does, of course, it imposes upon the Defendant the burden of explaining to you that the airplane crash was not the fault of the Defendant in this case.

Plaintiff in his fifth assignment insists that the foregoing was erroneous in that the jury was instructed to “weigh the evidence to determine if the plaintiff has proven by a preponderance of the evidence if the operator of the aircraft was guilty of negligence”.

As had been previously noted, the plaintiff not only relied upon the doctrine of res ipsa loquitur but also alleged specific acts of negligence on the part of Henson, and the Trial Judge instructed the jury on both theories. The law with reference to the burden of proof under the doctrine of res ipsa loquitur was succinctly stated by Judge Matherne of this Court in the case of Ford v. Roddy Manufacturing Company, 60 Tenn.App. 495, 448 S.W.2d 433 (1969), as follows:

Where, as here, the res ipsa loquitur doctrine is applicable the burden of proof does not shift from plaintiff to the defendant, but the defendant is required to go forward with the explanatory evidence, and from all the evidence the trier of fact may or may not accept the inference as raised by the doctrine.

The rule applicable to the jury when a case is submitted under the doctrine is stated in Sweeny v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815, as follows:

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.”

See also Kidd, supra and Scarbrough v. City of Lewisburg, 504 S.W.2d 377 (Tenn.Ct.App.1973).

Plaintiff is insisting, in effect, that under the doctrine of res ipsa loquitur the burden of proof is shifted to the defendant in this case and that the Trial Court should have so instructed the jury. We do not agree. Considering the charge as a whole we find no reversible error in the instructions given to the jury. The fifth assignment of error is overruled.

In his sixth assignment of error plaintiff contends that the Court erred by placing undue influence on the doctrine of assumption of risk by the manner in which this defense was charged. The bill of exceptions shows that the charge to the jury was concluded at 10:25 a. m. following which a fifteen minute recess was declared. Thereafter, apparently during the recess, the jury was called back to the courtroom because the Judge failed to give instructions on defendant’s theory of assumption of risk. A brief charge was given on this subject, the substance of which is not questioned by the plaintiff, and at 10:43 the jury retired to the jury room. Following some period of deliberation the jury returned to the courtroom to make inquiry of the Court concerning the defense of assumption of risk. There ensued a discourse between the Judge and the foreman of the jury, the substance of which is not questioned by the plaintiff, after which the jury returned to the jury room for further deliberation. Plaintiff insists that the untimely charge resulted in undue prominence being placed on the defense of assumption of risk and caused the jury to ignore the preponderance of the evidence.

While the preferred procedure would have been for the Court to complete the charge prior to the recess, from an examination of the entire record it does not affirmatively appear that the irregular manner in which the jury was charged affected the results of the trial. See T.C.A. § 27— 117. This assignment is also overruled.

Although the fourth and fifth assignments of error relate to the doctrine of res ipsa loquitur and the sixth assignment relates to the doctrine of assumption of risk, the issues as to whether or not this is a proper case for the application of either of these doctrines were not raised on appeal. Also, this appeal did not present an issue as to the propriety of the Trial Judge’s action in submitting the case to the jury on both the allegations of specific negligence and the doctrine of res ipsa loquitur. Since these issues are not before the Court, they have not been addressed in this opinion.

The judgment is affirmed and the costs of appeal are adjudged against the plaintiff and his sureties.

MATHERNE and NEARN, JJ., concur.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Pete ZARAGOSA, Appellant, v. The STATE of Texas, Appellee.
    No. 60434.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 23, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.
    Allan R. Manke, San Antonio, on appeal only, for appellant.
    Bill M. White, D.A., Sharon S. MacRae and H. Wayne Campbell, 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

ONION, Presiding Judge.

This appeal is taken from a conviction for carrying a handgun on licensed premises which resulted, following a guilty plea, in a bench trial. The punishment was assessed at eight (8) years’ imprisonment in light of the allegation and proof of one of two prior convictions alleged for the enhancement of punishment.

The appeal presents a case of initial impression given its unique fact situation concerning the power of the trial court to grant a motion for new trial of its own accord. The record reflects that originally the appellant entered a “not guilty” plea to the indictment in a bench trial which commenced on July 12, 1977. After the State presented its case as the primary offense, appellant’s counsel asked time to secure certain witnesses. A recess ensued. The docket sheet reflects that on July 19, 1977 the trial was reconvened, that evidence was heard, and that the trial court found the appellant was guilty and had been twice previously convicted of the felonies alleged. The statement of facts, however, does not reflect what evidence was produced at the July 19th hearing. The statement of facts jumps from the recess on July 12th until an apparent hearing on September 15, 1977 on the motion for new trial (filed on July 26th). At the commencement of such hearing, appellant’s counsel announced that the appellant was withdrawing his motion for new trial. No evidence was offered. In response to the court’s inquiry, the appellant personally acknowledged he was waiving his motion for new trial and agreeing to accept sentence. In the process of formally pronouncing sentence, the trial court stopped and asked to examine the motion for new trial (a general form motion). Mention was then made by the court that the “enhancement proof in this case . would be inadmissible under the case that we read after this trial.” The court then orally granted the motion for new trial, stating, “I think we may as well straighten it out here rather than doing it on appeal.” The State took exception to the court’s action, and appellant’s counsel simply replied, “Okay, Sir.”

Subsequently, the appellant filed a “Plea In Bar” alleging the enhancement portion of the indictment had not been properly proven and he would be placed in jeopardy if retried. The record does not show that such plea was ever presented to or acted upon by the trial court.

On March -29, 1978, the appellant waived trial by jury and entered a guilty plea before the court to the primary offense and a plea of “true” to the third paragraph of the indictment. The first prior conviction alleged for enhancement of punishment (alleged in second paragraph) was waived and abandoned by the State. The court assessed punishment at eight (8) years’ imprisonment.

On appeal from this conviction, appellant asserts that the court erred in granting a new trial after he had abandoned his motion for new trial following his first conviction, and that in being forced to trial a second time he was placed in double jeopardy in violation of the federal and state constitutions.

Generally, a motion for new trial must be determined within twenty days after it has been filed or it will be deemed overruled by operation of law. Article 40.05, V.A.C. C.P.; Trevino v. State, 565 S.W.2d 938 (Tex.Cr.App.1978); Abrams v. State, 563 S.W.2d 610 (Tex.Cr.App.1978); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975). While the provisions of Article 40.05, supra, permit the trial court to extend the time to file or amend a motion for new trial, it does not authorize an extension of time in which such a motion may be determined, and it has been held that a hearing conducted after a motion for a new trial has been overruled by operation of law will not be considered on appeal. Trevino v. State, supra; Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). See McIntosh v. State, supra; St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969).

At the time of the trial court’s action here in question on September 15,1977, appellant’s motion for new trial filed on July 26, 1977 had already been overruled by operation of law. The appellant offered no evidence on said motion, but in fact withdrew the motion prior to the court’s ruling. There was in fact at the time no motion for new trial by appellant for the court to rule upon. Therefore, the court’s action must be characterized as granting a new trial motion of its own accord.

The question then arises whether a trial court in a criminal case has the authority to grant a motion for a new trial on its own motion.

It appears to be well settled in this state that in civil cases a trial court is not restricted to the grounds set out in the motion for new trial, but may grant a new trial on its own motion and does not have to give its reasons for granting a new trial. See Napier v. Napier, 555 S.W.2d 186 (Tex.Civ.App.1977); 29 Tex. Digest, New Trial, and cases there cited. The general rule in this country is that in civil cases the trial court may grant a new trial on its own motion. See 66 C.J.S. New Trial § 115, p. 328; 58 Am.Jur.2d, New Trial, § 11, p. 196.

The rule does not appear to be as well settled in criminal cases. In a few jurisdictions the trial court has the power to order a new trial on its own motion. See Fla. Rules of Crim.Proc., Rule 3.580. This is particularly true where sufficient cause exists. Commonwealth of Pa. v. Dennison, 441 Pa. 334, 272 A.2d 180 (1971); State v. Hawkins, 72 Wash.2d 565, 434 P.2d 584 (1967); Sanders v. State, 239 Miss. 874, 125 So.2d 923 (1961); Commonwealth v. Endrukat, 231 Pa. 529, 80 A. 1049 (1911). Yet in other jurisdictions, apparently because of a risk of double jeopardy, the trial court has no power to order a new trial on its own motion in a criminal case but can act only on a motion made by the defendant. The disability often arises from the terms of statutes. See, e. g., Federal Rules of Crim. Proc., Rule 33; Colorado Rules of Crim. Proc. 33(a); Yt. Rules of Criminal Proc., Rule 33; Wyo. Rules of Crim.Proc., Rule 34; People v. Thompson, 10 Cal.App.3d 129, 88 Cal.Rptr. 753 (1970); Crymes v. State, 52 Ga.App. 195, 182 S.E. 856 (1935); State v. Whitbeck, 134 La. 812, 64 So. 759 (1914). See also 85 A.L.R.2d 486. In Arizona the rule provides that the “court on motion of the defendant or on its own initiative with the consent of the defendant may order a new trial.” Ariz. Rules of Crim.Proc., Rule 24.1(a). This appears to be a compromise approach. See and cf. State v. Harper, 353 Mo. 821, 184 S.W.2d 601 (1945).

In United States v. Green, 134 U.S.App.D.C. 278, 414 F.2d 1174 (1969), the Court wrote:

“. . . Since no such motion was made by the defendant the trial judge had no power to order a new trial, and the action taken is a nullity.”

The Court noted the Federal Rules of Criminal Procedure, Rule 33, provided that a motion for new trial may be granted “on motion of the defendant,” and that the advisory committee had stated that the purpose of the 1966.amendment to Rule 33 was to “make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant.” To the same effect is United States v. Vanterpool, 377 F.2d 32 (2nd Cir. 1967); United States v. Tinney, 340 F.Supp. 1146 (D.C.1972); United States v. Newman, 456 F.2d 668 (3rd Cir. 1972); United States v. Eaton, 501 F.2d 77 (5th Cir. 1974); United States v. Braman, 327 A.2d 530 (D.C.App.1974).

In Newman, the court wrote:

“. . . Since it is, therefore, clear that the defendant in this case could not have amended his motion for a new trial to include a new ground after the seven-day period prescribed in Rule 33 had expired, it would be entirely inconsistent with the purpose of the 1966 amendments to Rule 33 to allow the district court to grant a new trial motion four and one-half months after this seven-day period has elapsed for reasons advanced sua sponte by the court. . . . ”

In Eaton, the court wrote:

“. . . We find it unnecessary to entertain Eaton’s claim of double jeopardy because we find that Judge Brewster lacked the authority to order a new trial when one had not been requested by the defendant. * * * Roth Green and Vanterpool point out that the trial court’s lack of authority to order a new trial sua sponte makes a nullity of the second trial and the conviction emanating therefrom. However, as both decisions specifically hold, this determination does not automatically lead to the conclusion that the original conviction ought to be overturned or the original indictment dismissed.
“Eaton’s second indictment and conviction are void in all respects. This can only mean that Eaton’s first conviction remains intact. . . . ”

In Powell v. District Court, 473 P.2d 254 (Okl.Cr.1970), petitioner pled guilty to criminal charges and was assessed five years’ imprisonment in each case to run concurrently as part of a plea bargain. Five other cases were dismissed. Petitioner’s attorney withdrew from the case, and petitioner filed a pro se motion for new trial and gave notice of appeal. His motion for new trial was denied. The State then filed its motion to vacate the two judgments and sentences and it was granted over objection. The seven cases were refiled. Petitioner then brought proceedings in the appellate court to prevent the trial court from vacating the judgments and sentences. In Powell the Oklahoma Court of Criminal Appeals wrote:

“This Court held in Glassco v. State, 53 Okl.Cr. 61, 7 P.2d 172 (1932), that a new trial may be granted in a criminal case only upon motion of the defendant and upon the grounds stated in the statutes; and, that the court has no power to grant a new trial on its own motion, over the objection of the defendant. The Court also held that a new trial is granted on defendant’s motion, that defendant waived his constitutional protection against former jeopardy. Nowhere in the statutes is it provided that in a criminal case, in the absence of fraud or other matters that vitiates the verdict, that a new trial can be granted on the application of the state or by the judge on his own motion. The order entered in petitioner’s cases, vacating the judgments and sentences, was clearly based upon the state’s motion. The effect in this instance was the same as if it had resulted from a plainly stated Motion for New Trial. See: 85 A.L.R.2d 486, 491.”

The court held that the order granting the new trial should be set aside, vacated and held for naught and the judgments and sentences in the two cases should be reinstated.

Turning to our statutes, we find that Article 40.02, V.A.C.C.P., provides:

“A new trial can in no case be granted where the verdict or judgment has been rendered for the accused.”

Article 40.03, V.A.C.C.P., provides in part:

“New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other: . . . .” (Emphasis supplied.)

Castro v. State, 118 Tex.Cr.R. 53, 42 S.W.2d 779 (1931), did not involve a motion for new trial. It was a burglary case where the jury recommended a five year suspended sentence. Prior to sentence, the prosecutor learned that the defendant had a prior conviction which rendered him ineligible for the suspended sentence and the State then presented a motion to the court to disregard the verdict as to the recommendation of the jury as to the suspended sentence. Over objection, the court granted the State’s motion and entered judgment disregarding the jury’s recommendation. On appeal the action of the court was set aside and the judgment reformed to conform to the verdict rendered. In so doing, the opinion stated:

“. . . The procedure adopted impresses the writer as obnoxious to the rule that a new trial in a criminal case cannot be granted upon the motion of the state but upon that of the accused alone, and that the court is without power to enter a judgment or to annul a verdict in favor of the accused in a criminal case at the instance of the state. See Article 752, C.C.P., 1925.” (Now Article 40.02, V.A.C.C.P.)

The only Texas case which involved a new trial granted by the court on its own motion was Grisham v. State, 19 Tex.App. 504 (1885). It did not turn, however, on the authority or lack of authority of the court to grant such motion of its own accord. On appeal from a conviction for assault with intent to murder, the court held that the plea of former conviction should have been submitted to the jury under appropriate instructions. In so holding, the court observed that the defendant had been previously convicted of aggravated assault on an information filed in county court charging him with assault upon the same person at the same time and place as the indictment for assault with intent to murder. The record reflected the defendant was fined $25.00 and was remanded to the custody of the sheriff until the fine and costs were paid. A few days later the county judge on his own motion and without consent of the defendant granted the defendant a new trial. The indictment then followed. The court noted that a conviction followed by an endurance of punishment will bar a future prosecution for the same offense. As earlier noted, the case did not turn on the power of the court to grant a motion for new trial on its own motion per se.

While our statutes are not as clear-cut as those in other jurisdictions, we conclude in light of Articles 40.02 and 40.03, supra, that a motion for new trial in a criminal case may be granted only on the timely made motion of a defendant and the trial court has no authority to grant a new trial on its own motion. In the instant case we find the trial court had no power to grant the new trial as it did, even though its concern about straightening the matter out without an appeal was commendable. As in Eaton, Green and Vanterpool, we conclude that the court’s lack of authority to order a new trial sua sponte made a nullity of the second trial and conviction, and we find it unnecessary to entertain appellant’s claim of double jeopardy. It does not follow that the original conviction ought to be overturned, but the cause shall be returned to the trial court to proceed as if it had not granted the new trial on its own motion.

We are not unmindful of the provisions of Article 40.09, § 12, V.A.C.C.P., as to the authority of the trial court to grant a new trial during the appellate process, but we conclude that such authority is limited by its very provisions of the statute to the time the defendant has been sentenced, gives notice of appeal and files an appellate brief asking in effect for a new trial. The statute does not call for a different result than we have reached.

The judgment of the second conviction is set aside, and the judgment of the original conviction is reinstated, and the trial court is ordered to proceed as if it had not granted a new trial.

      . The formal written judgment reflects the trial “commenced” on July 12th. A separate page in the record shows the judgment was filed on July 12th, although the docket sheet reflects evidence was heard on July 19th and the judgment was then entered. While the judgment would normally control over the docket sheet, we do not view the two as being inconsistent. It appears that only on the separate page a clerical error was made as to the date the judgment was filed. Thus, there should be no question that the appellant’s motion for new trial filed on July 26, 1977 was timely filed within the ten day period authorized by Article 40.05, V.A.C.C.P.

      . The new trial motion simply states: (1) the judgment is contrary to the law; and (2) there was no evidence to support the finding of the court.

      . In the pleadings and in the statement of facts the second and third paragraphs of the indictment alleged for the purpose of enhancement of punishment are referred to as “counts” by all parties in this record. They are not “counts” and should not be referred to as such. Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192 (1942); Beck v. State, 420 S.W.2d 725 (Tex.Cr.App.1967); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Baker v. State, 437 S.W.2d 825, 827 (Tex.Cr.App.1969) (Concurring Opinion); Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970); Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969).

      .Article 40.05, V.A.C.C.P., provides:
      “A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed. Such motion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be determined by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal.
      “A motion for new trial may be filed after the expiration of the term at which said conviction resulted, either during a new term of court or during vacation, and a motion for new trial may be determined in vacation or at a new term of court, and need not be determined during the term at which filed.”

      .The motion for a new trial is but a pleading and the allegations therein do not prove themselves, but must be proved. Polk v. State, 172 Tex.Cr.R. 211, 355 S.W.2d 712 (1962); Mackey v. State, 480 S.W.2d 720 (Tex.Cr.App.1972); Tsamouris v. State, 472 S.W.2d 141 (Tex.Cr.App.1971); Allsup v. State, 495 S.W.2d 238 (Tex.Cr.App.1973). The burden of proof is on the movant.

      . If the court had permitted the appellant to file an amended motion for new trial and then granted the same the question before us would not have been presented. Article 40.05, V.A.C. C.P., permits the court to extend the time for filing and amending the motion for new trial by a defendant but does not permit the extension of time by the trial court for determination of the motion.

      . In People v. Williams, 65 Mich.App. 531, 237 N.W.2d 545 (1975), it was held that although the state statute authorized the trial court to grant a new trial when it appeared that justice had not been done, the trial court could not use vehicle of a new trial to “correct” a validly imposed sentence once the defendant had begun serving it.

      . See 4 Wharton’s Criminal Procedure, § 590, p. 165.

      . In State v. Hopper, 112 Ariz. 131, 539 P.2d 888 (1975), it was held that granting a new trial at the time of sentencing upon the court’s own motion and without consent of the defendant constituted reversible error.

      . Article 40.09, § 12, V.A.C.C.P., provides:
      “It shall be the duty of the trial court to decide from the briefs and oral arguments, if any, whether the defendant should be granted a new trial by the trial court. This duty shall be performed within the period of thirty days immediately after the state’s brief is filed, or, if none be filed, then within the period of thirty days immediately after the last day on which the state’s brief could be timely filed. Omission of the court to perform this duty within such period shall constitute refusal of the court to grant a new trial to defendant.”


author: DOUGLAS, Judge.

text:
    John Patrick AHEARN, Appellant, v. The STATE of Texas, Appellee. Mary Elizabeth AHEARN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57479, 57480.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 20, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Frank Maloney, Kenneth E. Houp, Jr. and David H. Reynolds, Austin, for appellants.
    Ronald Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

The convictions of John Patrick Ahearn and Mary Elizabeth Ahearn are for injury to a child under V.T.C.A., Penal Code, Section 22.04. The jury assessed punishment for each at eighteen years.

The sufficiency of the evidence is challenged and many grounds of error are urged.

The second count of the bill of indictment alleges:

“. . . that John Patrick Ahearn and Mary Elizabeth Ahearn on or about the 23rd day of October A.D., 1976, and before the presentment of this indictment, in said county and state, did then and there recklessly and with criminal negligence engage in conduct that caused serious physical deficiency to Johnny Lee Ahearn, a child younger than 15 years of age, by then and there omitting to provide support for Johnny Lee Ahearn, who was then and there the child of the defendants by providing less than the support needed by the said Johnny Lee Ahearn for food and medical care when the defendants could have provided such support and were legally obligated to provide such support, . . . ”

On October 23, 1976, at approximately 6:09 p. m., three Austin Emergency Medical Services technicians, James Loflin, James McMichael and Robert McMinn, arrived at Ahearns’ trailer house. They were responding to a call which stated that a child was choking at that location. Upon arriving they found Mary Ahearn outside crying and John Ahearn inside the trailer apparently giving mouth-to-mouth resuscitation to the deceased, Johnny Lee Ahearn, a four and a half month old baby. McMinn testified that the child was emaciated and blue, had no pulse or pupil reaction, and was not breathing; Loflin stated that Johnny’s bones were clearly visible, and McMichael related that he found dried feces on the baby’s buttocks.

The child was rushed to Brackenridge Hospital. During the ride he was given mouth-to-mouth resuscitation, oxygen via a pediatric Ambu bag mask, and cardiopulmonary resuscitation (CPR).

Doctor Milton Williams testified that he was on duty in the emergency room at Brackenridge Hospital when the ambulance with the baby arrived. He stated that the child was not breathing, had no pulse and appeared blue from a lack of oxygen. After trying unsuccessfully to revive him, Johnny Lee Ahearn was pronounced dead at 6:24 p. m.

Dr. Williams testified that the deceased was obviously malnourished and in a state of severe dehydration. A rash was evident on the baby’s cheeks and forehead. Two infections were found on Johnny’s genitals. Dr. Williams stated that infections of the type found on the prepuce of the baby’s penis are usually caused by lack of cleanliness. Johnny also had an infected scrotum which had two one-inch long yellow worms inside this wound. Testifying from photographs of the baby made shortly after his death, Dr. Williams stated that he was “very, very small, the ribs are very prominent, he has what is called a scaphoid abdomen, the abdomen is very, very lax, withdrawn.” He noted that Johnny’s skin texture was lax and seemed to be wrinkled. Slight livor mortis and rigor mortis was also observed.

Dr. Williams testified that a normal child of Johnny’s age should have weighed in the vicinity of fourteen to sixteen pounds. The deceased weighed seven pounds eight ounces at birth and six pounds eleven ounces at the time of his death. In other words, the child weighed thirteen ounces less at the age of four and a half months than he did at birth.

Based on his observations of the deceased at the time of death, Dr. Williams concluded that the baby was in a state of serious physical deficiency, had not received enough of the minimum requirements of food and had been in need of medical attention for some period of time. Post-mortem X-rays also revealed that the child had a broken collarbone. Dr. Williams and Dr. James E. Ritting, a radiologist, estimated the fracture was less than two weeks old, and Dr. Williams related that Johnny should have received medical attention. He was of the opinion that even if the dehydrated and malnourished condition could have been largely attributed to a metabolic disfunction, the baby should have been brought to medical attention for treatment between two and four weeks of age.

Dr. Coleman de Chenar performed an autopsy on the deceased and found discolorations about the baby’s face which indicated some impact by mechanical force. He determined that the penis wound could have been caused by accumulated urine and excrement while the scrotum wound appeared to have developed from stagnant urine fluid. The child was undernourished, dehydrated and from under the skin fair tissue had completely disappeared from areas like the chest and abdominal walls, giving the impression that the skin was oversized for the body. The lungs revealed that the child had inhaled small black granules while may have been caused by exposure to dust, smoke or soot for a considerable length of time. Fluid which contained some particles identical with the gastric contents and having a bile discoloration was discovered in both the lungs and the trachea. In the abdominal cavity there was extensive internal bleeding caused by a blow with a blunt object. Dr. de Chenar said it was not the type of injury found when someone falls against the corner of furniture. Besides the bleeding, the blow caused the stomach to regurgitate its contents as well as a bile colored fluid from the small intestines. This fluid was inhaled by the baby which resulted in suffocation. The blow was estimated to have occurred within hours of the baby’s death. This type of injury, he said, would be consistent with being struck by a human fist but would not be the result of cardiopulmonary resuscitation.

On cross-examination Dr. de Chenar testified that the hemorrhaging in the mesh of connective tissues was indicative of an ante-mortem injury. He stated that the bruises on the baby’s face and lips were not consistent with the application of a cardiopulmonary resuscitation device nor mouth-to-mouth resuscitation but could have been caused by forceful hand pressure. As to the genitalia, Dr. de Chenar said that the prepuce of the penis, although functional, did exhibit tissue defect and death and was the oldest injury on the child. Although the penis wound was large enough to allow the biting part of two one-inch worms, the scrotum injury was not sufficiently large enough to do so. The collarbone fracture was not evident to Dr. de Chenar during the autopsy. Finally, he testified that the cause of death was due to suffocation, not the injuries to the head, left temporal region, genitalia and knees.

Dr. Joseph Jachimczyk, chief medical examiner for Harris County, was called by the defense. He testified that the head wound as well as contusions on the left temporal region and left chin would be consistent with marks caused during the administration of cardiopulmonary resuscitation; and the lip marks were consistent with those left by mouth-to-mouth resuscitation. His examination of test slides prepared by Dr. de Chenar revealed no extensive bleeding in the stomach wall or intestinal loops. The only hemorrhaging he found occurred in the fat attached to the outer layer of the stomach. He felt that this was minor and would have healed on its own. Dr. Jachimczyk did not believe the bleeding was caused by a frontal blow but instead was more consistent with application of cardiopulmonary resuscitation. The penis wound was estimated by him to be five days old and the scrotal injury, which he saw only in photographs, was believed to be merely a rash. Although many children suffer from intestinal worms, he said, he could not tell if the deceased was so afflicted. A collarbone, he related, could be broken by poor handling of the child. While admitting that the deceased was dehydrated and malnourished, and acknowledging that a normal four and a half month old baby should weigh twice its birth weight or around fifteen pounds, Dr. Jachimczyk testified that none of his examinations suggested a “battered child.” This was because dehydration can be caused by a number of factors including fever, lack of nourishment, intestinal worms, diarrhea and malabsorption syndrome which is generally the result of a pancreas disfunction. No pancreas slides were made during the autopsy. Despite the deceased’s malnourished and weakened condition, the witness stated that a normal child would not have had a better chance of survival because death was due to suffocation, not malnourishment. He did not have an opinion as to whether the baby had a serious physical deficiency nor could he determine the cause of the child’s malnourishment.

On cross-examination, Dr. Jachimczyk admitted that his testimony was based solely on the autopsy protocol, death certificate, birth records, emergency room records, photographs, diagrams, slide examinations and a conversation with Dr. de Chenar. He did not perform the autopsy and stated that the pathologist who actually performed the autopsy was more capable than he of drawing conclusions as to the location and extent of injuries. Similarly, he acknowledged that the examining physician at death would have a more accurate opinion of the time of death than a pathologist who performed an autopsy twenty-four hours later and after embalming. He was of the opinion that the earliest signs of livor mortis occur about two hours after death with rigor mortis setting in later. The witness conceded that, if the child died of suffocation and had been dead for at least one hour, this would be consistent with the testimony of the EMS personnel that the child had no pulse or pupil reaction and was not breathing. If that were the case, he said the administration of cardiopulmonary resuscitation and mouth-to-mouth resuscitation would not have caused the facial marks, head injury or hemorrhaging.

Joe Cox, owner of the trailer occupied by the Ahearns and the deceased at the time of death stated that the interior of the trailer was in poor condition. He had found human waste on the couch and dirty diapers throughout. Dirty diapers were also found in the front yard of the trailer. The couch had to be burned by Cox after appellants had moved out because it was stained by the waste and had a putrid odor. On several occasions between June and September of 1976, Cox saw the baby and noted that he did not grow. He looked very sick and thin with his bones clearly visible. There were flies around and upon him. Cox also observed Mary change Johnny’s diapers without removing the waste and saw her feed the baby from dirty bottles. Cox reported appellants to the local welfare authorities.

Mary Beth Calhoun, a neighbor of appellants, related that Mary and the deceased came to her trailer on one occasion with an eight-ounce bottle of water. Mary stated that she brought water because the baby did not like milk. Calhoun then gave the deceased some milk and “he drank it so fast that he choked on it.” She further stated that Mary would leave the deceased and his one-year-old brother, Tommy, alone at home for several hours while visiting with the owners of a nearby gas station. These visits occurred “mostly every day.”

Willouise Glass, owner of the station, testified that Mary would frequent the station for long periods of time “almost every day”, leaving her children alone at home unattended. Sometime in late September or early October, Glass saw Mary feed the baby with an eight-ounce bottle. His chest bones were visible and Glass felt that he was taking the milk too fast. Mary replied, “Oh, well, maybe Tommy bit the end of the nipple off”, and continued to feed him. The child drank “just like an animal grasping all the food he could get at once”, and almost immediately vomited. On another day, Mary told Glass that the welfare department was planning to inspect the trailer and that she was nervous and had cleaned the trailer. Glass also saw Mary holding the baby with one of his legs twisted back under him. When this was brought to her attention, she merely replied, “That’s okay.”

On the day of Johnny’s death, Mary came to the gas station and asked to use the phone because “I think my baby is dead.” Glass immediately called EMS and then, along with her husband, accompanied Mary back to the trailer. There Glass found John kneeling beside the baby periodically giving mouth-to-mouth resuscitation. As Glass entered the trailer John looked in her direction and said, “That’s it.” He then continued his efforts. Mrs. Glass stated, however, that John did not appear to be emotionally upset but merely annoyed. As appellants prepared to follow the ambulance to the hospital, they were planning to leave their one and a half year old son, Tommy, alone and unattended because Mary’s mother was coming “in a little while.” Finally, a neighbor objected and Tommy was left with her.

Joann Ray testified that she sold a car to Mary’s mother, Mrs. Alvin Edwards, who in turn gave it to appellants. She related that on October 17, 1976, she and her husband went to appellants’ trailer to discuss delinquent car payments. Although no one answered the door, they did see a one and a half year old boy at a broken window. The fact that the boy was home alone, coupled with the size of the hole in the window and the position of the boy’s head relative to the hole, made Mrs. Ray extremely upset. Mary was eventually located at the gas station. Mrs. Ray also testified that when the car was sold originally it was in very good condition but when it was finally repossessed it had to be sold for junk because it was filthy, had beer cans all over it, food caked in it, and smelled so bad that she could not get near it.

Paul Bazemore testified that he was formerly married to Mary and had visitation privileges with regards to their son, Tommy, who lived with appellants. He related that when he visited the trailer it was very dirty and odoriferous. John was drinking on these occasions and “sometimes he was real drunk.” Bazemore saw Johnny only once during his short lifetime and found him to be discolored and unresponsive. The baby was wearing a full length gown, however, which prevented further inspection. Because of these conditions, Bazemore contacted the State Department of Public Welfare.

After receiving several reports on appellants, Charles Greathouse, a welfare caseworker, attempted to find the Ahearns at their trailer. He made two unannounced visits, saw garbage around the front of the trailer but was unable to locate them. Mary called Greathouse in response to a message he left and an appointment was arranged. At the meeting on September 30, 1976, he noted that the deceased “was very, very small. * * * He appeared to me to be very underweight, his hair was— seemed to be very dull; his stomach slightly distended; there was what appeared to be a heat rash on his stomach, and most striking of all were his legs which were very, very thin.” Mary told Greathouse that she had taken Johnny for an examination at Bergs-trom Air Force Base, where John was stationed, when he was six weeks old but had not returned. She did not notice any perceptible problem because her husband had been very small as a baby. She agreed to take the deceased to Bergstrom for another examination and Greathouse volunteered to provide transportation if she had problems.

At an October 6th visit, Mary told Great-house that she had taken Johnny to the Rosewood Clinic for immunizations and had made arrangements to take the baby to a doctor at Bergstrom on October 20, 1976. On the day of the baby’s death, October 23, Greathouse saw the Ahearns at the hospital where Mary stated that they had not been able to keep the October 20 appointment at Bergstrom.

The State adduced other evidence which showed that the Ahearns and their children were eligible for free medical care at Berg-strom Air Force Hospital. They did not apply for these privileges, however, until a month after the death of Johnny. The State introduced evidence that Johnny Lee Aheam had never been treated at either Bergstrom or the Rosewood Medical Clinic.

Mrs. Alvin Edwards, mother of Mary, testified for the defense that she bathed and diapered Johnny in late September but found diaper rash to be his only ailment. On the weekend of October 16 and 17,1976, she again cared for him and noted that the diaper rash had improved. On this occasion she commented that he was on “junior foods” and fed him macaroni and cheese along with one and a half ounces of formula which he took “real well.” Mrs. Edwards did admit to seeing Mary change the deceased’s diapers without wiping off the waste, and she conceded that she had urged Mary to seek medical help for Johnny. At the hospital on the day of the baby’s death, Mary told her mother that she did not take the baby to Bergstrom on October 20 because John could not get off work to take her. To this Mrs. Edwards replied, “Well, I would have made arrangements somehow to have gotten off it he couldn’t get off.” Previously, Charles Greathouse had also volunteered to drive her to the doctor.

Finally, pictures taken shortly after death and introduced into evidence depict an extremely emaciated male baby. His ribs were clearly visible and his face shows evidence of bruises. Dried feces were evident on his buttocks and the prepuce of his penis was purple. His skin was extremely lax and wrinkled. Small wounds could be seen on his head and back. His condition was reflected by photographs, two of which are included on following pages.

Exhibits to follow.

STATE’S EXHIBIT NO. 3

STATE’S EXHIBIT NO. 5

Appellants contend that the evidence is insufficient to show that the deceased was suffering from a serious physical deficiency. They also argue that since none of the external injuries contributed to death, there was no serious physical deficiency.

The evidence as set out above showed that the deceased was malnourished, severely dehydrated and weighed thirteen ounces less at the age of four and a half months than he did at birth. The prepuce of his penis was infected and had a two millimeter deep defect in it as well as some evidence of tissue death. His scrotum was infected and two one-inch yellow worms were found there. The skin was very lax, and his lungs contained small black granules similar to dust or soot. The baby’s face was covered with sores; the color of which indicated some impact by mechanical force. He also suffered from a broken collarbone. There was extensive hemorrhaging in his abdomen. This bleeding was caused by a blow by a blunt object and was of sufficient force to cause regurgitation of the gastric contents of both the stomach and the small intestines. The inhalation of the vomit resulted in death. Dr. Williams, the examining physician, testified that in his opinion the baby was in a state of serious physical deficiency when he was examined. Doctors de Chenar and Jachimczyk also stated that he was in need of medical attention.

It is well settled that we are bound to view the evidence in a light most favorable to the verdict. Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974).

“Serious physical deficiency” is not defined in the Penal Code. Although “serious bodily injury” is defined in Y.T.C.A., Penal Code, Section 1.07(a)(34), we have held that it is distinguishable from serious physical deficiency. Morter v. State, 551 S.W.2d 715 (Tex.Cr.App.1977).

A deficiency does not have to cause or contribute to death before a jury is warranted in finding it “serious.” We conclude that the deceased’s severely emaciated condition together with the nature, extent and variety of his injuries shows the type of serious physical deficiency as denounced in the statute. See Vaughn v. State, 530 S.W.2d 558 (Tex.Cr.App.1975). Therefore, we hold the evidence is sufficient to support the jury’s finding that there was a serious physical deficiency.

Next, appellants contend that the evidence is insufficient to show that they caused the serious physical deficiency.

V.T.C.A., Penal Code, Section 22.04(a), provided at the time of trial:

“(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury, serious physical or mental deficiency or impairment, or deformity to a child who is 14 years of age or younger.”

Appellants were indicted for recklessly and with criminal negligence engaging in conduct that caused serious physical deficiency to the deceased by providing less than the minimum requirements for food and medical care which they were legally obligated to provide.

The thrust of their argument is that the evidence did not establish that lack of food or medical care caused the deceased’s serious physical deficiency.

V.T.C.A., Family Code, Section 12.04(3), provides that parents have:

“(3) the duty to support the child, including providing the child with clothing, food, shelter, medical care, and education.”

Under this statute each parent has a duty to support his or her minor child. Harrington v. State, 547 S.W.2d 616 (Tex.Cr.App.1977); Ronk v. State, 544 S.W.2d 123 (Tex.Cr.App.1976); V.T.C.A., Family Code, Section 4.02.

In Harrington v. State, supra, the Court held that:

“The omission or neglect to perform a duty resulting in death, such as a mother’s failing to feed her child, may constitute murder where the omission was willful and there was a deliberate intent to cause death.”

Where the parents’ omission or neglect to perform a duty results in a serious physical deficiency, such as failing to provide adequate food or medical care to an obviously emaciated child, they must be guilty of injury to a child where the omission was intentional, knowing, reckless or with criminal negligence.

V.T.C.A., Penal Code, Section 6.03, provides in relevant part:

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

There is no evidence showing that appellants sought medical care for their child at any time during his short life, despite the fact that it was available to them at no cost. There was, however, an enormous amount of testimony relating to the infant’s physical deterioration over those four and a half months as well as the squalid surroundings in which he lived. Each physician testified that the deceased was in need of medical attention, and numerous lay witnesses related being sickened by the sight of him. He and his one year old brother lived in filthy conditions and were left unattended for extended periods of time.

The cause of the genital wounds was determined to be a lack of cleanliness which could only be attributed to appellants’ failure to properly care for the children. When it became obvious that the child was losing weight and was in such a physical condition and when the wounds became evident, appellants had a duty to seek medical care. The result of their failure to do so no doubt caused a continuing decline in the baby’s condition such that the jury was able to find that appellants acted at least reckless or with criminal negligence. Harrington v. State, supra, is distinguishable as to the proposition that it is necessary to exclude all other causes for the deceased’s malnourishment. Harrington involved an intentional murder by starvation by the parents of a two-year-old child. In order to convict, all other possibilities had to be excluded. Here, it was only necessary to show that appellants’ reckless or criminally negligent actions in failing to provide adequate food or medical care were the cause of the deceased’s condition, not their specific intent nor the specific physical causes of the ailments.

Appellants contend the trial court erred in failing to define “serious physical deficiency” in its charge, and that the term is unconstitutionally vague.

In King v. State, 553 S.W.2d 105, cert. denied, 434 U.S. 1088, 95 S.Ct. 1284, 55 L.Ed.2d 793 (1978), we cited Joubert v. State, 134 Tex.Cr.R. 219, 124 S.W.2d 368 (1938), for the proposition that:

“Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms, and under such circumstances such common words are not necessarily to be defined in the charge to the jury.”

V.T.C.A., Penal Code, Section 1.05(a), provides that:

“(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”

In King v. State, supra, we held that “deliberately”, “probability”, “criminal acts of violence”, and “continuing threat to society” did not have to be specially defined for the jury. In addition, “burglarious entry”, Thomas v. State, 543 S.W.2d 645 (Tex.Cr.App.1976); “sound memory and discretion”, Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973); “reasonable doubt”, Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973); “pre-meditated design”, Mitchell v. State, 365 S.W.2d 804 (Tex.Cr.App.1963); “voluntarily” as used in a murder with malice indictment, Joubert v. State, supra, all need not be defined. See also Article 3.01, V.A. C.C.P.

The question of serious physical deficiency is one of fact for the jury to determine based on all the evidence before it. The term is simple and need not be defined in the court’s charge.

As to the issue of vagueness, it is well settled that a statute is not rendered unconstitutionally vague merely because the words or terms are not specifically defined. Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976). The following terms have been held not vague or indefinite: “probability”, Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976); “an act of violence or threatened [act of] violence to a person or property”, Powell v. State, supra; “bodily injury”, in V.T.C.A., Penal Code, Section 22.02(a)(2) as defined in V.T.C.A., Penal Code, Section 1.07(a)(7), Ramirez v. State, 518 S.W.2d 546 (Tex.Cr.App.1975); “signal to stop”, Stein v. State, 515 S.W.2d 104 (Tex.Cr.App.1974); “moderate restraint or correction”, Nabors v. State, 508 S.W.2d 650 (Tex.Cr.App.1974); “edible meat”, Sanford v. State, 492 S.W.2d 581 (Tex.Cr.App.1973); “solicit”, Page v. State, 492 S.W.2d 573 (Tex.Cr.App.1972).

A statute is unconstitutionally vague only if persons of common intelligence must necessarily guess at its meaning and differ as to its application. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). We hold that the term “serious physical deficiency” is not unconstitutionally vague.

Appellants contend that the evidence is insufficient to show the criminal agency of each appellant. Specifically, they aver that the evidence is insufficient to show that any steps they could have taken would have alleviated the deceased’s condition.

“Each parent has a duty to support his or her minor children.” V.T.C.A., Family Code, Sections 4.02, 11.01 and 12.04; Harrington v. State, supra; Ronk v. State, supra. “Unless it is shown that one parent [had] sole and exclusive care, custody, and control, both may be guilty of an offense under Section 22.04, supra.” Harrington v. State, supra.

In the instant case, the evidence as to appellants’ actions was before the jury as was medical testimony on the severity and causes of the deceased’s condition. We hold that the jury as charged on parental duties and criminal responsibility was warranted in finding that each of the appellants neglected parental duties to the baby and thereby contributed to his condition.

They complain that the court erred in denying their requested charge on the lesser included offense of criminal non-support.

V.T.C.A., Penal Code, Section 25.05(a), provides:

“(a) An individual commits an offense if he intentionally or knowingly fails to provide support that he can provide and that he was legally obligated to provide for his children younger than 18 years, or for his spouse who is in needy circumstances.”

Lesser included offenses are governed by Article 37.09, V.A.C.C.P.

In Bayona v. State, 544 S.W.2d 155 (Tex.Cr.App.1976), this Court held that an assault under Y.T.C.A., Penal Code, Section 22.01(a)(1), is not a lesser included offense of criminally negligent homicide under V.T. C.A., Penal Code, Section 19.07. The Court reasoned that since a higher degree of mental culpability intentionally, knowingly or recklessly was required for an assault, it could not be a lesser included offense under Section 3 of Article 37.09, supra. As to Section 2 of Article 37.09, supra, the lesser serious injury must be the only difference between the two offenses.

In comparing Sections 22.04(a) and 25.-05(a), it can be readily seen that appellants were indicted under Section 22.04(a) for “recklessness and criminal negligence.” Section 25.05(a) requires a finding of “intentional or knowingly.” Thus, this was not a lesser included offense under Sections 1 and 3 of Article 37.09. See Bayona v. State, supra, (concurring opinion). Section 2 provides that the only difference between the offenses is a less serious injury or risk thereof. Such is not the case here. Criminal non-support is not an attempt to injure a child under Section 4 of Article 37.09, supra. No error is shown.

Complaint is made that the court erred in failing to charge the jury on the law of circumstantial evidence. In Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1976) (Opinion on Appellant’s Motion for Rehearing), this Court stated:

“A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g. Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given where the State relies only in part on circumstantial evidence, Lawler v. State, 110 Tex.Cr.R. 460, 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R. 156, 192 S.W.2d 263 (1946). See 31 Tex. Jur.2d 682-683, Instructions, Sec. 123; Morris v. State, 402 S.W.2d 161 (Tex.Cr.App.1966); Russell v. State, 396 S.W.2d 117 (Tex.Cr.App.1965).”

The direct evidence adduced at the trial consisted of eyewitness accounts of the child’s visible deteriorating health; the filthy environment appellants lived in; the failure to properly clean the baby when his diapers were changed; his malnourished and dehydrated appearance; evidence of improper feeding and holding methods; unsanitary baby bottles; repeated attempts to convince appellants that the deceased was in need of immediate medical attention; obvious sores and bruises; an unsupervised homelife; the availability of free medical care; lies as to the baby’s clinic visits; and a general lack of concern on appellants’ part for their children’s welfare. This evidence of the baby’s condition was direct. This, coupled with appellants’ statutory duty to support and failure to provide care, was sufficient to show agency and causation. The court did not err in refusing to give the requested charge.

They complain of the court’s refusal to give appellants’ requested charge on criminally negligent homicide. Although originally indicted for murder, as well as injury to a child and involuntary manslaughter, the State elected to proceed only on the charge of injury to a child. As discussed above, criminal negligent homicide is not a lesser included offense under Article 37.09, supra.

No reversible error is shown. The judgments are affirmed.

      . “Parent” is defined as “the mother, a man as to whom the child is legitimate, or an adoptive mother or father.” V.T.C.A., Family Code, Section 11.01(3).

      . Article 37.09, V.A.C.C.P., provides:
      “An offense is a lesser included offense if:
      “(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
      “(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
      “(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
      “(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

      .Other contentions appear in Part II of this opinion which is not for publication. It contains no new questions of law. See Thompson v. State, 514 S.W.2d 275, 278, footnote 2 (Tex.Cr.App.1975).
      The other contentions discussed are that the court erred in:
      1. Refusing to grant a severance;
      2. Overruling motions to quash the indictment;
      3. Failing to grant a new trial or reduce the punishment because the Legislature made the act a third degree felony after they were sentenced;
      4. Not holding that the penalty provisions of the statute constituted cruel and unusual punishment;
      5. Introducing X-ray photographs of a broken collarbone of the deceased;
      6. Admitting evidence of John Aheam’s acts of intoxication;
      7. The asking of questions by the prosecutor about who the older child of appellants was to stay with after appellants were in custody;
      8. Permitting an emergency technician to testify that the bruises on the baby’s face were not caused by attempts to revive him;
      9. The asking of an unanswered question of Dr. Williams;
      10. Admitting into evidence the emergency room records; and
      11. Failing to give a requested charge that a voluntary act was required.


author: PHILLIPS, Judge.

text:
    Shirley Thrash NORMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 56831.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Randy Taylor, Dallas, for appellant.
    Tom O’Connell, Dist. Atty., Verla Sue Holland, George E. Gasper and William L. Schultz, Asst. Dist. Attys., McKinney, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of delivery of heroin. Punishment was assessed at 50 years’ confinement in the Department of Corrections. Appellant initially challenges the sufficiency of the evidence to prove she intentionally and knowingly delivered the heroin.

The record reveals, in a light most favorable to the verdict, that Troy Braswell, a narcotics agent employed by the Texas Department of Public Safety, received a telephone call on January 28, 1976, from Dewayne Hamilton, a-confidential informant, that a meeting for a sale of heroin had been arranged for the afternoon of January 29, 1976, at Dallas North Airport in Collin County. Agent Braswell, together with other agents and law enforcement persons, proceeded to that location on that day. Upon Braswell’s arrival, he met with Domingo and Ruby Reyes, who had arrived in another vehicle. Shortly thereafter, the agent and the Reyeses moved their vehicles to another location at the airport. After a brief conversation, during which Agent Braswell showed Reyes $10,000.00 for the purchase of the heroin, Reyes motioned to the occupants of another vehicle that the agent had observed during the conversation. This vehicle was occupied by appellant and her husband, Albert Norman. After Reyes motioned, A1 Norman left their car, walked around the car to appellant, who was already out of the car, and handed to appellant a sack which she then carried to Agent Braswell and Reyes’s location. She delivered the sack to the agent. The sack contained four prophylactics containing heroin. After the arrest of appellant and the other persons, a search of the Norman vehicle revealed a cellophane package found over the sun visor of the driver’s side where Mr. Norman was observed. This package contained heroin.

Possession of the heroin need not be exclusive and evidence which shows that the appellant jointly possessed the contraband with another is sufficient. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.), and cases cited therein. However, a finding of joint possession cannot be justified solely by proof of mere presence of an accused at a place where contraband is being used or possessed. Ayers v. State 570 S.W.2d 926 (Tex.Cr.App.); Brooks v. State 529 S.W.2d 535 (Tex.Cr.App.); Harrison v. State, 555 S.W.2d 736. Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.); Curtis v. State, supra; Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.). This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.); Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.).

In this case, more than appellant’s mere presence is shown. Appellant exercised control over the sack, not stapled or shut, containing the heroin which she carried from her car to the Reyes car. Agent Braswell testified Reyes said that his runners, indicating appellant and Norman, would bring the heroin to his car upon his (Reyes’s) seeing the money. This conversation occurred at both locations.

The heroin found over the driver’s visor of the Norman car was that which appellant’s husband, a heavy heroin addict shooting approximately $600.00 a day and who “fixed” three or four times a day and who had purchased heroin from Reyes on prior occasions, had obtained from Reyes for his part in the deal. Norman had received it at Reyes’s house earlier that morning when he received the sack and a “fix” for payment. Appellant allegedly waited in the car, but the sack of heroin was placed under appellant’s car seat when they left the Reyes house.

Following the Reyes car, with the heroin in the Norman car, they proceeded from Oak Cliff to the Mobil Station at Highway 544 and Preston Road. At that location, they met Hamilton. With the appellant present, Reyes removed the sack from underneath the seat of appellant and went with Hamilton into the restroom at the Mobil Station where Reyes gave Hamilton some of the heroin from the sack for his (Hamilton’s) part in the transaction. Reyes again placed the heroin under the seat of the Norman car with the appellant present and all of the parties proceeded to Dallas North Airport. Norman testified, however, that because he and his wife were not speaking, appellant did not know the contents of the sack.

The jury, being the judge of the credibility of the witnesses, could accept or reject some or all of their testimony. Drager v. State, 548 S.W.2d 890 (Tex.Cr.App.). The language in Cockrell v. State, 135 Tex.Cr.App. 218, 117 S.W.2d 1105, is applicable. It is as follows:

we are not allowed to substitute our judgment for that of the jury, and should not disturb the verdict unless no facts are found to support it. .

Based upon these facts and circumstances, the jury could reasonably infer that the appellant knew of the heroin’s existence, thereby indicating her knowledge and control. We find the evidence sufficient to sustain the verdict. Appellant’s first ground of error is overruled.

Appellant’s second ground of error alleges that the trial court erred in failing to grant immunity from prosecution to the State’s informant, Dewayne Hamilton, when he refused to answer questions on Fifth Amendment grounds because the evidence showed that he was an agent of the State and his testimony was necessary to appellant’s defense of “vicarious entrapment,” thereby denying appellant her right to compulsory process for obtaining witnesses for her defense in violation of the Sixth and Fourteenth Amendments.

An examination of Dewayne Hamilton’s claim against self-incrimination in this case reveals that his claim was spurious and that he was an agent of the State, but the trial court allowed such claim to prevail. The questions presented are whether the trial judge’s allowance of a spurious Fifth Amendment claim asserted by the State’s informer denied appellant her Sixth Amendment right to call a witness to support her vicarious entrapment defense and if so, was this denial harmless beyond a reasonable doubt.

This is not the first time the trial judge and the State’s informant Dewayne Hamilton have come face to face in the same trial. In Ex parte Turner, 545 S.W.2d 470 (Tex.Cr.App.), the same trial judge also allowed Dewayne (Duane) Hamilton to claim his Fifth Amendment privilege based upon an undercover agent’s sworn denial that he had any relationship with Hamilton. When this Court instructed the trial court in that case to conduct another evidentiary hearing allowing the petitioner in that habeas corpus proceeding to call Hamilton as a witness, the same trial judge made a fact finding that: “This court finds that Hamilton could have been the informant in the transaction and could have played a material part in bringing the parties together for the alleged transaction . . . ” and that based upon this evidence, Hamilton’s Fifth Amendment claim was “without substance,” and had the court heard the evidence subsequently given by both the undercover agent and Hamilton at the time of the original trial, the court would not have allowed the claim. (Emphasis added)

The trial court filed these Additional Findings of Fact and Conclusions of Law on April 5, 1976.

On June 23, 1976, two and a half months after he filed the above findings, the trial judge heard evidence in the instant case from State Undercover Agent Braswell that Hamilton was the informant in the transaction involving the appellant, did play the major part in bringing Reyes and Bras-well together, and was acting in accordance with instructions from Agent Braswell. Despite this, and his prior findings concerning Hamilton two and a half months before, the trial court again allowed Hamilton to claim his Fifth Amendment privilege against self-incrimination when asked questions concerning himself and Reyes. The law is well settled that if Hamilton was actually working at the direction of and in conjunction with Agent Braswell, he was acting as a State agent and his claim of privilege under the Fifth Amendment was spurious. Ex parte Turner, supra.

The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified . . . The trial judge in appraising the claim “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Hoffman v. U. S., 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)

Moreover, assuming that informer Hamilton’s taking the Fifth Amendment was a case of first impression with the trial court, we find the procedure followed below erroneous.

At the trial, pursuant to appellant’s motion to call Dewayne Hamilton as an adverse witness, a hearing was conducted outside the presence of the jury. All questions propounded to Hamilton concerning his relationship to Reyes and Agent Braswell, his role as an agent of the State, and the heroin delivery were answered: “I refuse to answer on the grounds it may tend to incriminate me.” In fact, Hamilton was asked some twenty-four questions by defense counsel, all answered with a claim of the Fifth Amendment, before defense counsel was forced to ask for a grant of immunity. Before this time, the trial court made no inquiry into the validity of Hamilton’s self-incrimination claim.

In U. S. v. Gomez-Rojas, 507 F.2d 1213 (5th Cir. 1975), the defendant pleaded that he had been entrapped by government informer Smith. The informer resisted a defense subpoena by claiming his Fifth Amendment privilege, which the district court upheld without making any inquiry into the validity of the claim. The court there held that the trial court erred by accepting the informer’s assurances at face value without determining whether his fear of self-incrimination was well founded and what the parameters of his Fifth Amendment rights were in the context of the testimony that the defense counsel had tried to obtain from him.

United States v. Waddell, 507 F.2d 1226 (5th Cir. 1975), held that where the defendant’s sole defense to a charge of possession of cocaine with intent to distribute was that a paid government informer entrapped him into selling contraband, the district court’s decision to excuse the informer from giving testimony on the basis of a bald assertion of Fifth Amendment privilege without conducting a hearing in the absence of the jury into the facts underlying such an assertion was error.

However, given the facts of this case regarding Hamilton’s informer-agent status, it is axiomatic that the appellant has a right to call him as a defense witness and to offer his testimony to the jury.

The right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present a defense . . . This right is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); also Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972)

We hold that the trial court committed constitutional error in not granting appellant’s request for immunity for informant Hamilton. The next order of inquiry is whether the trial court’s denial of appellant’s Sixth Amendment right to compulsory process and presenting a defense, by the court’s allowing Hamilton to not answer questions propounded to him or not conducting a hearing to ascertain his reason for not doing so, was constitutional error “harmless beyond a reasonable doubt.” Chapman v. California, 368 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); United States v. Mayer, 556 F.2d 245 (5th Cir. 1977). To answer this, we must look to the materiality and relevancy of the questions asked Hamilton to find if appellant was denied presenting a defense when the questions were not answered.

The sole reason, as expressed by appellant’s counsel in having Hamilton testify, was to present an entrapment defense. However, this entrapment defense was a “vicarious” one in that the appellant was trying to prove that because Hamilton, a State agent, possibly entrapped Domingo Reyes, who then enlisted the help of the appellant’s husband, who then enlisted appellant’s help as deliverer of the heroin, appellant, although thrice removed from the government agent and never directly contacted by him, could avail herself of the entrapment defense which could possibly be asserted by Reyes. Such a “vicarious” entrapment defense is a case of first impression before this Court.

Before passing on this question, however, we must address the State’s misguided argument that the appellant must have admitted the commission of the offense to present her entrapment defense. The defense of entrapment is not available to a defendant that denies the commission of the offense. Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.); Stephens v. State, 522 S.W.2d 924 (Tex.Cr.App.). This is because a denial of the commission of the offense is inconsistent with entrapment, as this defense assumes that the offense was committed. Stephens v. State, supra. However, the defendant who pleads not guilty and who does not take the stand or offer any testimony inconsistent with her commission of the crime would still be entitled to offer a defense of entrapment. See U. S. v. Groessel, 440 F.2d 602 (5th Cir. 1971). Thus, the defendant is not required to admit the commission of the offense in each case.

In analyzing appellant’s vicarious entrapment argument which theorizes that appellant could avail herself of Reyes’s possible entrapment defense, we find no merit. Section 8.06 of the Penal Code states:

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit' an offense does not constitute entrapment. [Emphasis added]
(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Section (a) above mandates that there must be a direct link between the defendant and the law enforcement agent. The defendant must be induced by the agent, not a private citizen as was the case here. Pearson v. United States, 378 F.2d 555 (5th Cir. 1967). It was Reyes who induced appellant’s husband who induced appellant to deliver the heroin. There was no showing anywhere in the record that Hamilton ever made contact with the appellant or induced her to deliver the heroin in any way.

In Wood v. State, 516 S.W.2d 667 (Tex.Cr.App.), we held that where the defendant sold methamphetamine pills to a State agent, partly at the suggestion of an acquaintance from whom he had obtained the pills as security for a loan, and the acquaintance was not a State agent, the State was not guilty of entrapment.

To hold otherwise would not advance the policy behind this “objective” test of entrapment as adopted by the Legislature in Section 8.06, supra, which is to deter police conduct violative of law enforcement standards in a civilized society. As stated, only the individual acted upon by the unscrupulous agent enjoys the benefit of the objective test in Section 8.06, supra. The Legislature in Section 8.06, supra, has balanced the benefit of the deterrent effect upon law enforcement agents of allowing unscrupulously induced defendants to go free, with the cost to society of allowing someone other than the directly induced defendant to avail himself of the defense. We note this same cost-benefit analysis has been applied to illegal search and seizure exclusionary rule questions. The U.S. Supreme Court has balanced the benefit of the deterrent effect upon law enforcement agents who conduct illegal searches and seizures by suppressing the evidence illegally obtained therefrom with the cost to society of suppressing same. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Cf. Rakus v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The immediate and calculable “cost” of sustaining a “vicarious” entrapment defense outweighs the uncertain and therefore negligible deterrent value upon law enforcement agents.

The Legislative intent espoused in Section 8.06, supra, to make entrapment a personal defense and the cost of an unrestricted extension of the defense do not allow vicarious invocation of the entrapment defense.

The objective entrapment test mandates that the trial court, having once determined that there was an inducement, need now consider only the nature of the State agent activity involved, without reference to the predisposition of the particular defendant. See 62 A.L.R.3rd 110. The reasoning behind this “objective” test for entrapment was described by Justice Stewart in his dissenting opinion in United States v. Russell, 411 U.S. 423, at 441, 93 S.Ct. 1637, at 1647, 36 L.Ed.2d 366 (1973):

Thus, the focus of this [objective] approach is not on the propensities and predisposition of a specific defendant, but on “whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.”
In my view, this objective approach to entrapment advanced by the Roberts opinion in Sorrells and the Frankfurter opinion in Sherman is the only one truly consistent with the underlying rationale of the defense. Indeed, the very basis of the entrapment defense itself demands adherence to an approach that focuses on the conduct of the governmental agents, rather than on whether the defendant was “predisposed” or “otherwise innocent.”

The vicarious entrapment defense espoused by the appellant attenuates the “cost-benefit” policy by allowing a defendant to discredit the inducement methods of State agents when she was never a party to such inducements. Such a policy would allow entrapment defenses by all defendants involved to prevail ad infinitum from the original improper use of governmental power by the State agent, regardless of whether each defendant was ever induced by the government to commit the crime in the first place.

In denying appellant’s vicarious entrapment defense, we also find that the constitutional error in depriving appellant of her Sixth Amendment right to compulsory process to present a defense was harmless since she in fact had no defense of entrapment. Thus, any error by the trial court in not compelling the State’s informant Hamilton to give answers to entrapment questions of the defense or to inquire into the reasons behind his assertion of the Fifth Amendment was harmless beyond a reasonable doubt. Chapman v. California, supra; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Appellant’s second ground of error is overruled.

Appellant’s third and fourth grounds of error allege that the trial court abused its discretion in questioning four female jurors about the possibility of their having talked about the case to a third party in violation of the court’s instructions.

During the course of the trial, the district court judge interrupted proceedings to question four female jurors individually and out of the presence of the other jurors about alleged jury misconduct. The court stated during this questioning that it had information that a woman on the jury had communicated indirectly with the defendant. More specifically, it was the judge’s impression that one of the women on the jury had told an inmate at the jail that she would not allow the defendant to be found guilty. Each of the four women denied any such communication. Appellant claims that the questioning itself was improper and caused the jury to be biased against the defendant, denying her right to a fair and impartial trial by jury.

The trial court instructed the jury that it was not to converse with anyone about the case on trial except in the presence and by the permission of the court. The trial court did this in order that the jury would comply with Article 36.22, V.A. C.C.P. Since the court believed its own instructions had been violated, it was perfectly proper for the court itself to make inquiries into possible jury misconduct. Nielssen v. State, 456 S.W.2d 928 (Tex.Cr.App.). Determinations as to jury misbehavior are up. to the discretion of the court. Appleman v. State, 531 S.W.2d 806 (Tex.Cr.App.). We do not find the questioning prejudicial to the defendant. The very basis of the question was directed toward obtaining a fair and impartial trial.

Further, if appellant wished to show bias on the part of a juror, her proper remedy was a motion for new trial with an accompanying affidavit by a juror showing such bias. Article 40.03(8), V.A.C.C.P. No such affidavit was presented. Appellant’s third ground of error is overruled.

Appellant’s fourth ground of error alleges that the trial court erred in its investigation of the alleged juror misconduct during the trial and at the hearing for motion for new trial by not revealing the source of the information about the alleged jury misconduct.

Appellant cites no authority to support her contention that the trial court abused its discretion in not disclosing the source of its information alleging possible jury misconduct during the trial. On the contrary, we find the court’s halting the proceedings and conducting a hearing on the matter immediately was proper. Wilkes v. State, 566 S.W.2d 299 (Tex.Cr.App.). Nielssen v. State, supra. Based on the jurors’ answers to the court’s questions, no misconduct had occurred. There was no showing that the defendant was prejudiced by the questioning. (It is also noted that the alleged statement made by the juror would indicate a defense bias for the appellant.)

This Court has always held that before a new trial is warranted, there must be injury to the accused. Lowe v. State, 226 S.W.2d 674 (Tex.Cr.App.); White v. State, 82 Tex.Cr.R. 286, 199 S.W. 1117. Whether or not there was jury misconduct is an issue of fact for the trial court to decide and unless there is a showing that the court abused its discretion, the decision should not be disturbed. Appleman v. State, supra.

We find no error committed by the trial court during the hearing and no injury to the appellant.

As far as appellant’s motion for new trial is concerned, when the appellant failed to support her motion alleging jury misconduct with supporting affidavits of a juror concerning juror bias as discussed above, the court did not err in overruling that motion. Story v. State, 502 S.W.2d 764 (Tex.Cr.App.). Appellant’s fourth ground of error is overruled.

Appellant’s final ground of error alleges that the trial court erred in entering the judgment against her because of an alleged fatal variance between the wording of the judgment entered and the offense charged.

The indictment charges appellant with the offense of delivering “to Troy Braswell, a controlled substance, namely, Heroin.” The jury verdict as to guilt and innocence and as to punishment both found the defendant guilty as charged in the indictment. The judgment recites:

The Defendant having been indicted in the above entitled and numbered cause for the felony offense of Delivery of a Controlled Substance, namely: Cocaine

The judgment further recites that the jury finds the defendant guilty as charged in the indictment.

Article 44.24, V.A.C.C.P., provides that this Court may reform and correct the judgment as the law and nature of the case require. Weeks v. State, 476 S.W.2d 310 (Tex.Cr.App.); Gibson v. State, 488 S.W.2d 462 (Tex.Cr.App.). Appellant’s fifth ground of error is overruled.

The judgment is reformed to reflect the charge in the indictment and the jury’s verdict, and as reformed is affirmed.

TOM G. DAVIS, J., concurs in the result.

      . It is noted that only one question was asked of Hamilton (which was not answered) pertaining to the appellant. Hamilton was asked whether or not he saw the appellant on the day of the offense. It was uncontroverted by the State and the defense that appellant was the person who delivered the bag to Reyes and Braswell on the date in question. Importantly, nothing was asked of Hamilton pertaining to appellant’s knowledge that the bag contained heroin. Therefore, we cannot say from the record that appellant was denied such evidence, had Hamilton been able to give it.