author: BYERS, Judge. GALBREATH, Judge,

text:
    Peter Eugene SCALF, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 30, 1978.
    Certiorari Denied by Supreme Court May 1, 1978.

      James T. Bowman, Johnson City, for appellant.
    Brooks McLemore, Jr., State’s Atty. Gen., Robert Delaney, Asst. State’s Atty. Gen., Nashville, Martha Meares, Pat Widener, Asst. Dist. Attys. Gen., Johnson City, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of selling lysergic acid diethylamide (LSD) and sentenced to serve not less than five (5) years nor more than fifteen (15) years in the penitentiary.

The Appellant attacks the sufficiency of the evidence, the refusal of the trial judge to charge on the defense of entrapment both prior to the offering of proof by the Appellant and after the Appellant rested without offering any proof. He also claims that he was denied equal protection of the law because he was not afforded a bifurcated trial on the issues of guilt and punishment.

The judgment of the trial court is affirmed.

On June 30,1975, Larry Frye, an agent of the T.B.I., along with an informant named Wilson went to a trailer occupied by the Appellant. After some bargaining, the Appellant sold Agent Frye fifty-one (51) dots of LSD for one hundred and seventy-five dollars ($175.00). A dot of LSD is created by dropping liquid LSD onto blotter paper. The LSD retains its potency in this form and is readily usable by those who are so inclined. No evidence was offered by the accused in this case.

The assignment of error which questions the sufficiency of the evidence is not supported by the record. The only evidence for the jury to consider was the State’s evidence which pointed unerringly to the Appellant’s guilt. The Appellant has failed to demonstrate that the evidence preponderates against the verdict. State v. Thompson, 549 S.W.2d 943 (Tenn.1977).

At the close of the State’s proof, the Appellant asked the trial judge to rule upon his request for a charge upon the defense of entrapment as a condition precedent to a determination by him on whether he would testify in the case. The trial judge declined to rule on this request until all the evidence was introduced. The Appellant claims that this placed him in an intolerable position of having to take the stand to show entrapment, which if not recognized as a defense and not given in the charge to the jury, would require him to give evidence of his guilt without the benefit of the defense of entrapment.

Both the State and the Appellant discuss to some extent the law of entrapment in this State. Both concede that it is generally held that entrapment is not a defense in Tennessee. Hilton v. State, 503 S.W.2d 951 (Tenn.Crim.App.1973); Warden v. State, 214 Tenn. 391, 381 S.W.2d 244 (1964). However, in the cases of Williams v. State, 218 Tenn. 359, 403 S.W.2d 319 (1966) and Hagemaker v. State, 208 Tenn. 565, 347 S.W.2d 488 (1961), the Supreme Court of Tennessee has established the rule that if the actions of the officer induce a person to commit a crime which he had no intent to commit then he may not be convicted because of the absence of an essential element — intent.

The Appellant has, however, failed to show that he was entitled to the application of the Williams and Hagemaker rule. At the close of the State’s proof there was no evidence to indicate that Agent Frye enticed the Appellant to commit a crime which he had no intent to commit. All the evidence at that point showed the Appellant willing to intentionally violate the law by selling drugs, without any inducement by Frye. Of course, when the defense offered no evidence in contradiction of the State’s evidence, the same evidentiary status existed when the trial court instructed the jury.

The trial court is not required to give a requested charge unless the evidence fairly raises the proposition of law sought by the person requesting the special charge. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963). Certainly, the trial judge was not required to give a prospective ruling on a requested charge in order for an accused to trim his sails according to the prevailing winds prior to embarking on his proof. This would require the trial judge to speculate that the evidence would show the matter sought in the special request. In most cases the burden of showing entrapment or the lack of criminal intent by reason of actions by police officers would fall to the accused. The State is not required to show the absence of either. Of course, if the State’s proof brought a case within the Williams and Hagemaker rule, the trial judge would be required to give a proper charge on the issue. The accused was not intolerably or constitutionally deprived of his right to testify or not to testify.

The Appellant claims that because of a unitary trial to find guilt and fix punishment he was denied due process of law. No motion for such procedure was made in the trial court. This is not a claim of a fundamental constitutional defect which may be raised on appeal not objected to in the trial court. Hill v. State, 513 S.W.2d 142 (Tenn.Crim.App.1974); Buchanan v. State, 2 Tenn.Cr. 398, 454 S.W.2d 178 (1970). Beyond this, to allow a bifurcated trial in all capital cases in which mitigating circumstances may be shown to the jury or judge while a unitary trial is required on not guilty pleas before a jury does not show an irrational or unreasonable classification of procedures which amount to constitutional deprivation as claimed by the Appellant.

The judgment of the trial court is affirmed.

GALBREATH and DUNCAN, JJ., concur.

GALBREATH, Judge,

concurring.

I concur in the results reached by the majority.

In doing so, I point out again, as I have numerous times before, that in spite of rulings to the direct contrary our Supreme Court has, in such cases as Hagemaker v. State, supra, and Williams v. State, supra, recognized that entrapment, where proved, is a valid defense to the charge of committing a crime wherein “the criminal intent or design to commit the offense charged originates in the mind of the person who seeks to entrap accused and to lure him into commission of the crime merely for the purpose of arresting and prosecuting him . .” Hagemaker v. State, supra, citing, with approval, 22 C.J.S. Criminal Law § 45.

While I must, as charged by the Supreme Court, continue unrealistically to say that Tennessee does not, as do the courts of all other jurisdictions in this Nation, recognize the defense of entrapment, intellectually I cannot distinguish those holdings of our highest Court that do when the facts so warrant. In this case, in any event, the facts do not.


source: Caselaw Access Project

author: RUSSELL, Judge.

license: Public Domain

text:
    James Samuel TILLERY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 15, 1978.
    James L. Milligan, Glen B. Rutherford, Knoxville, for appellant.

      Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., John W. Gill, Jr., Asst. Dist. Atty. Gen., Knoxville, for appellee.
   OPINION

RUSSELL, Judge.

James Samuel Tillery has appealed his conviction for second degree murder. In the judgment below the appellant was sentenced to 45 years in the State penitentiary. For reasons hereinafter stated, that judgment is affirmed.

The appellant asserts that he was denied the right to a speedy trial. In support of this contention he invokes provisions of the Sixth Amendment to the United States Constitution; Article I, Section 9 of the Tennessee Constitution; and Tennessee Code Annotated Sections 40-2001 and 40-2102. Tillery complains about the interval between December 3, 1975, when he was bound over to the Knox County Grand Jury, and September 27, 1976, when the indictment was returned.

When a defendant in a criminal case alleges that the government has failed to afford him a speedy trial, four factors are to be weighed in considering whether his constitutional right has been violated: (1) the length of the delay, (2) the defendant’s assertion of his right to a speedy trial, (3) the reasons for the delay, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Bishop, 493 S.W.2d 81 (Tenn.1973). No single factor is determinative in all cases, but the most crucial inquiry is whether the delay has prejudiced the defendant. U. S. v. Reynolds, 489 F.2d 4 (6th Cir. 1973). Trigg v. State of Tennessee, 507 F.2d 949 (6th Cir. 1974), cert, denied 420 U.S. 938, 95 S.Ct. 1148, 43 L.Ed.2d 414.

The delay of almost 10 months from the bind over order to the return of the indictment is greatly mitigated by the lack of a showing of prejudice to the appellant. Nothing in the record indicates that Till-ery’s defense was impaired by the delay. Before the return of the indictment Tillery was not incarcerated but was out on bond.

It appears from the record that the delay was occasioned by a backlog before the Knox County Grand Jury which eventually led to the creation of a third division of the Knox County Criminal Court. While this circumstance does not relieve the State from its duty to speedily try the accused, Garrett v. State, 534 S.W.2d 325 (Tenn.Cr.App.1975), it does tend to extenuate the time that elapsed before the return of the indictment. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

The factors discussed above, along with the fact that Tillery did not assert his right to a speedy trial until April 22, 1977, seven months after the return of the indictment, lead us to the conclusion that the appellant’s right to a speedy trial has not been violated.

By his next assignment of error, the appellant maintains that the evidence is not sufficient to support the jury’s verdict that he is guilty of second degree murder. In a statement given to the police on the day of the murder and in his testimony at trial, Tillery said that he shot the deceased, Sidney Butler. Two eyewitnesses to the shooting testified. They both stated that before Tillery began shooting his .410 shotgun at Butler, he told Butler that he was going to kill him. Both witnesses indicated that the appellant shot Butler in the chest and in the buttocks. One of the witnesses, Edward Page, said that a third shot hit Butler in the head. The Knox County Coroner testified that the victim sustained gunshot wounds in the head, chest, and buttocks. We hold that the evidence is sufficient to support the jury’s finding that Tillery is guilty of second degree murder. This assignment is without merit.

Error is assigned upon the basis of the trial court’s allowing one of the eyewitnesses, Buster Chandler, to testify that several months after the murder he was threatened by the appellant. While testifying on his own behalf, Tillery denied making any threats to Chandler. Any attempt by an accused to conceal or destroy evidence, including an attempt to suppress the testimony of a witness, is relevant as a circumstance from which guilt of the accused may be inferred. Hicks v. State, 533 S.W.2d 330 (Tenn.Cr.App.1975); U. S. v. Franks, 511 F.2d 25 (6th Cir. 1975), cert, denied Mitchell v. U. S., 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 and Britton v. U. S., 422 U.S. 1048, 95 S.Ct. 2667, 45 L.Ed.2d 701. Thus, the trial court did not commit error by permitting the introduction into evidence of Chandler’s testimony.

The appellant’s next assignment of error concerns the trial court’s refusal to grant his special requests for jury instructions. The instructions given by the trial court are not in the bill of exceptions, therefore we must presume that the charge given fully and fairly stated the applicable law. Berry v. State, 4 Tenn.Cr. 592, 474 S.W.2d 668 (Tenn.Cr.App.1971). When the trial court correctly charges the applicable law, it is not error to refuse special requests. Edwards v. State, 540 S.W.2d 641 (Tenn.1976). This assignment is overruled.

In his final assignment of error, the appellant contends that the sentence is excessive. The jury’s sentence of 45 years in the State penitentiary is within the statutory limits of T.C.A. § 39-2408 and is therefore not excessive. Buckingham v. State, 540 S.W.2d 660 (Tenn.Cr.App.1976). This assignment is meritless.

The judgment of the trial court is affirmed.

O’BRIEN, J., and W. WAYNE OLIVER, Special Judge, concur.


author: POPE, Justice. McGEE, Justice,

text:
    Ruth PARKER, Petitioner, v. HIGHLAND PARK, INC., Respondent.
    No. B-6576.
    Supreme Court of Texas.
    Feb. 8, 1978.
    As Modified on Denial of Rehearing March 15, 1978.

      C. Coit Mock, Fort Worth, for petitioner.
    McBryde, Bogle & Green, John H. McBryde, Fort Worth, for respondent.
   POPE, Justice.

The question presented by this appeal is whether the no-duty doctrine is still a viable one in the trial of premises cases. This case deals with invitees and tenants and does not involve licensees or trespassers. Mrs. Ruth Parker was injured when she fell while descending a dark stairway located on the premises of Highland Park, Inc. She sued Highland Park and recovered a judgment on a jury verdict for $17,123.00. This case arose before the effective date of the comparative negligence statute. Art. 2212a. The trial court’s judgment for Mrs. Parker was upon the jury findings that (1) the stairs were not properly lighted, (2) which caused the stairs to be unusually dangerous for use, (3) Highland Park was negligent in not causing the stairs to be properly lighted, (4) which was a proximate cause of Mrs. Parker’s injuries. The jury refused to find (5) that Mrs. Parker was negligent in undertaking to descend the stairs, (6) or in the manner in which she descended the stairs, but (7) found that Mrs. Parker received a warning of the danger as she proceeded down the stairs. She had been visiting Judge and Mrs. Massey. Mrs. Massey had said to her, “Ruth, be careful.” The court of court of civil appeals with a divided court reversed the judgment and rendered judgment for Highland Park. 545 S.W.2d 275. That court placed its decision squarely upon the holding that the defendant owed the plaintiff no duty since the darkness in the stairwell was open and obvious to Mrs. Parker, citing Robert E. McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Lowe Chemical Co. v. Greenwood, 433 S.W.2d 695 (Tex.1968), and Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Mrs. Parker went to the apartment of Judge and Mrs. Frank Massey during the afternoon of October 23, 1971. The Mas-seys had been renting their apartment from Highland Park for about two years. Mrs. Parker and Mrs. Massey are sisters. After dinner and at about eight fifteen in the evening, those three persons prepared to leave the second-floor apartment to drive Mrs. Parker to her home in another part of the city. Upon opening the door they saw that the foyer outside the Massey apartment and the stairway were in total darkness. While Mrs. Parker waited, Judge Massey descended the steps by holding to the rail and feeling his way down. He expected to open the outside door at the foot of the steps and admit some light. Since it was so dark outside, this did not solve the problem. Mrs. Massey went back into her apartment to obtain a flashlight.

Mrs. Parker and Mrs. Massey then proceeded cautiously to descend the steps. The steps were so narrow that it was easier for persons to go in single file. Mrs. Massey followed Mrs. Parker so she could direct the light on the steps in front of Mrs. Parker who was about three steps in front. She was holding the light low so Mrs. Parker could see the steps. Mrs. Parker held onto the rail on the right side of the steps. After descending six steps Mrs. Parker reached a flat landing at which point the stairs made a right angle turn to the right. There was a step from that landing to a second flat landing and then six more steps to the ground floor. When Mrs. Parker made the turn at the first landing, she did not remember that there was a step which separated the first and second landings. See Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941). Mrs. Parker said that she had been on the stairs to visit her sister every six weeks to two months and a few times at night, but the stairway was always lighted before. She moved from the first landing and while still holding to the rail, she stepped off the first landing. She testified that she swung around to the right, and she tried to grab the rail with her left hand. She testified that the light from the flashlight was obscured by the right turn and the posts on the stairway.

The Massey apartment shared the common foyer and stairs with another apartment. The foyer and stairs were inside the building but outside the apartments. The Masseys controlled the lights inside their apartment, but Highland Park, Inc. exercised complete control over the area and the lights outside the apartment. The entire apartment complex consisted of 204 apartments and the lights for the halls and stairs were set to come on and go off at predetermined times. An employee of Highland Park, Inc. was responsible for setting the automatic timing device. It had to be reset periodically as the days grew shorter, and by October 23 there was a total darkness by 8:15 P.M., when the accident occurred.

Highland Park says that it is entitled to a favorable judgment because the trial court, over its objection, failed to submit as a part of the plaintiff’s issues, a special issue which inquired whether the defendant either created or maintained the dangerous condition, or whether the defendant knew or should have known of the condition. The evidence that Highland Park created the darkened and dangerous condition on the steps is undisputed. By answers to admissions, Highland Park stated that on the second floor there was a light fixture inside the front stairwell and another at the back of the stairwell. There were two similar fixtures on the first floor. There were also lights just outside and inside the back door. All six of those lights were out when the accident occurred. Highland Park admitted that those lights were controlled by a mechanism recessed in the wall inside the back door on the first floor. It admitted that it was “probably one of its employees who was responsible for setting the automatic timer,” and “the present information of the defendant is that Jerry Wilson probably had that duty.” It said that it did not know who made the last setting or when it was made. It offered no contrary evidence to dispute or explain its answers. There is no evidence that anyone other than defendant had the right to change or ever had changed the timer. The lights came on automatically after the accident but before Mrs. Parker left in the ambulance, so it was not an instance of six defective bulbs being out at the same time. The undisputed proof is that defendant set the automatic timer so the lights would come on after total darkness.

The duty that the landlord owed to the Masseys as tenants extended to their guest, Mrs. Parker, under the standard stated in Sections 360 and 361 of the Restatement (Second) of Torts:

§ 360. Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use
A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.
Comment:
a. Effect of lessee’s knowledge of dangerous condition. The rule stated in this Section applies to subject the lessor to liability to third persons entering the land, irrespective of whether the lessee knows or does not know of the dangerous condition. The lessee may, for example, know that the common entrance to the apartment or office which he has leased has become dangerous for use because of the lessor’s failure to maintain it in safe condition. His knowledge may subject him to liability even to his own licensees, if he fails to warn them of the danger. It will not, however, relieve the lessor of liability for his negligence in permitting the entrance to become dangerous. [Emphasis added.]
c. A lessor may be liable to an invitee or even to a licensee of the lessee, although neither he nor the lessee would be liable under the same circumstances to their own invitees or licensees. The privilege of the visitor is not based, as is that of the lessor’s own invitee or licensee, upon the consent given upon the occasion of the particular visit, but upon the fact that he is entitled to enter by the right of the lessee, who is entitled under his lease to use the part of the land within the control of the lessor not only for himself, but also for the purpose of receiving any persons whom he chooses to admit. This fact is to be taken into account in determining whether the lessor should anticipate harm to the visitor. It follows that the lessor’s duty is not always satisfied by warning the lessee or others of the dangerous condition, and that the knowledge of such persons of the danger will not always prevent their recovery. Where, for example, the entrance to an apartment house is dangerously defective, and there is no other available entrance, the third person may be expected to use it notwithstanding any warning, or even his own knowledge of the danger. Unless he is to be charged with contributory negligence, he may recover notwithstanding such warning, or even knowledge.
§ 361. Parts of Land Retained in Lessor’s Control but Necessary to Safe Use of Part Leased
A possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care
(a) could have discovered the condition and the risk involved, and
(b) could have made the condition safe.

Other expressions of this duty owing a guest of a tenant under these circumstances are 49 Am.Jur.2d Landlord and Tenant, § 810 (1970); Annot., Landlord’s Liability— Adequacy of Light, 66 A.L.R.3d 202, 344-51 (1975); Annot., 24 A.L.R.3d 388, 391-92 (1969).

The court of civil appeals denied judgment for Mrs. Parker without reaching the findings of the jury that the defendant was negligent and the plaintiff was not. The court of civil appeals held that the plaintiff did not prove that the defendant owed Mrs. Parker a duty, because, by looking back at her state of knowledge, the defendant owed her no duty. This complex and confusing no-duty rule was explained in Robert E. McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), and in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963). We quote from those cases:

To determine the existence and the extent of the owner’s duty we must therefore look not only to the conduct of the owner but to the conduct of the invitee as well. It may well be that when we examine the conduct of the invitee for the purpose of deciding whether there has been a breach of duty by the owner we necessarily decide, as an incident thereto, the defensive issue of voluntary exposure to risk, with the result that a decision of the first question follows a decision of the second automatically. . . . But this resulting intermingling of the two problems would not justify our rewriting the substantive law of the state to impose a duty where it is so firmly established • none exists. Even if voluntary exposure to risk be not pleaded as a defense the duty question would still be present. McKee v. Patterson, supra, 271 S.W.2d at 394.
The “no duty” doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Ge-nell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them “no duty” to warn or to protect the invitees. This is so, the cases say, because there is “no duty” to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.
So in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiffs case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., the plaintiff must negative “no duty.” This is the “no duty” referred to in the cases. Academically, it may be a rather clumsy concept, but it is still the law. . Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948). [Emphasis added.] Halepeska, supra, 371 S.W.2d at 378-79.

The court of civil appeals in this case has followed the rule of McKee which required plaintiff invitee not only to prove affirmatively that the defendant was at fault by looking at defendant’s conduct, but also to prove the absence of his own subjective knowledge and appreciation of any danger. The rule of McKee was that an invitee carried the extra burden to negate “no-duty.” It also wrote that the extra burden was “an incident to the defensive issue of voluntary exposure to risk.”

In Halepeska, a studied effort was made to separate and clarify the no-duty, voluntary assumption of risk and “open and obvious” concepts. The explanation for the long-standing confusion in the terms, of course, is that the subjective knowledge and appreciation elements of no-duty were also two of the three elements of the volenti (voluntary assumption of risk) doctrine which we discarded in Farley v.MM Cattle Company, 529 S.W.2d 751 (Tex.1975). Ha-lepeska from the quotation above explains that a plaintiff who has knowledge of a dangerous condition because it is open and obvious “will be charged with knowledge and appreciation thereof.”

The inextricable mixing of (1) the duty owed by a defendant and (2) a plaintiffs burden to negate his own knowledge and appreciation with (3) voluntary assumption of risk has been more recently recognized. In Ellis v. Moore, 401 S.W.2d 789, 793 (Tex. 1966), we explained how they are intertwined, saying: “Where the assumed risk doctrines of ‘no duty’ or volenti are invoked, the duty of the defendant is to exercise ordinary care to make reasonably safe or to warn.” [Emphasis added.] In Scott v. Liebman, 404 S.W.2d 288, 292-93 (Tex. 1966), the identification of the no-duty doctrine with voluntary assumption of risk was again stated: “To review, then, the basic concepts of assumed risk (no duty) and to place this opinion in context with others by this Court . . . .” The court then in Scott explained that the purpose of a warning is to supply the elements of knowledge and appreciation. Those are two of the three elements of voluntary assumption of risk.

No-duty, as thus explained, was said to defeat a plaintiffs action because a plaintiffs knowledge and appreciation of a danger cut off his action before reaching the issue about a defendant’s negligence. As has been noticed before, the plaintiffs knowledge and appreciation are two elements which duplicate, overlap, and are segments of the voluntary assumption of risk doctrines which we abandoned in Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.1975). Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 457-58 (Tex.1972).

We now expressly abolish the so-called no-duty concept in this case and, as expressed in Farley, “henceforth in the trial of all actions based on negligence . . .”

The reasonableness of an actor’s conduct under the circumstances will be determined under principles of contributory negligence. While this case arose prior to the adoption of the comparative negligence statute, in the trial of cases under that statute, one who is contributorily negligent is still entitled to have his negligence compared with that of the other participants in the event.

Our reasons for abolishing the no-duty concept need to be stated:

1. The appendage of “no-duty” to a plaintiff’s burden to prove that a defendant owed a duty has contributed confusion which has defied the efforts of our best scholars at explanation and application. This court acknowledged this difficulty when it wrote in McKee v. Patterson, supra, “[i]t would greatly simplify our procedural problems if we could follow the course suggested by . Camp v. J. H. Kirkpatrick . . . and let this class of cases fall into the pattern of the usual negligence case, deciding the question of negligence and breach of duty on the part of the owner by looking only to his conduct and the question of voluntary exposure to risk on the part of the invitee by looking alone to his conduct, but to do so would be to ignore the well-settled law of this state . . . .”

2. This court, based on logic, has already undermined the no-duty rule that the court in McKee felt bound by stare decisis to follow. Our decision in 1975 in Farley v. M M Cattle Company, 529 S.W.2d 751, abolished the voluntary assumption of risk doctrine in its entirety, taking an action which this court felt it should not take in 1954 at the time of the McKee decision. In our earlier decision in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972), we held that voluntary assumption of risk should not be submitted in three special issues to the jury, since one issue with an instruction about the elements of the doctrine would suffice. While Farley overruled Adam Dante by eliminating even that single special issue, our definition of voluntary assumption of risk set out in Adam Dante reveals what Farley terminated. Voluntary assumption of risk was defined:

You are instructed that in order for the plaintiff to assume the risk, she must have actually known of the condition which caused her injury and she also must have actually and fully appreciated the nature and extent of the danger involved in encountering the condition, and she must have voluntarily and of her own free will encountered the danger of the condition causing her injuries, if any. 483 S.W.2d at 458 n. 2.

The definition included three elements: (1) knowledge, (2) appreciation, (3) the voluntary encounter. Greenhill, Assumed Risk, 20 Sw. L.J. 1, 12 (1966). When Farley abolished voluntary assumption of risk, it terminated the whole doctrine, all three elements. The contention now is that the first and second elements (knowledge and appreciation by the plaintiff) in some way survived Farley and Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975), and still live under the name of “no-duty.” Voluntary assumption of risk included and is inseparable from no-duty. Our decision in Farley was that the three factors which comprise the doctrine of voluntary assumption of risk (including the plaintiff’s knowledge and appreciation) should be measured by the reasonableness of the actor’s conduct. In other words, we held that the action should be decided upon principles of negligence.

3. The legislature by its adoption in 1973 of the comparative negligence statute evidenced a clear policy purpose to apportion negligence according to the fault of the actors. See generally Tex.Rev.Civ.Stat. Ann. art. 2212a. That system replaced the harsh system of absolute victory or total defeat of an action by such doctrines as contributory negligence, voluntary assumption of risk, and also the included doctrine known as no-duty. This was a reason assigned in Farley and earlier in Rosas for the elimination of the no-duty rule in its inclusive form of voluntary assumption of risk. The survival of no-duty (plaintiff’s knowledge and appreciation) as a total bar is incompatible with the legislative purpose of the comparative negligence statute. Farley, Rosas, Adam Dante, and article 2212a have now wholly eroded any foundation for the McKee reasoning grounded upon stare decisis. See Note, 7 Tex.Tech.L.Rev. 765, 767-69, 771-72 (1976).

4. The no-duty doctrine is so elusive that precedent is non-predictive and unhelpful. This was a reason assigned for the abolition of no-duty in the form of voluntary assumption of risk. Rosas v. Buddies Food Store, supra, 518 S.W.2d at 539. Edgar, Voluntary Assumption of Risk in Texas Revisited — A Plea for its Abolition, 26 Sw. L.J. 849 (1972).

5. The no-duty rule imports a plaintiff’s subjective knowledge of a condition into an objective general duty rule. As stated in Rosas, the intrusion of subjective intent of a plaintiff on a behavioral tort runs counter to the traditional resolution of liability that is determined by objective standards of negligence. Rosas, supra, at 538. See Keeton, Annual Survey of Texas Law, Torts, 24 Sw. L.J. 1, 5-6 (1970); see also Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, at 455 and 458, and compare footnote 1 with footnote 2.

6. The no-duty doctrine has been generally condemned. It is a harsh doctrine and imports a distrust of juries. Keeton, Annual Survey of Texas Law, Torts, 23 Sw. L.J. 1, 10 (1969). “Academically, it may be a rather clumsy concept . . . Halepeska, supra, 371 S.W.2d at 379. A plaintiff’s burden to negate his own knowledge and appreciation, which was required by the rule of McKee and Halepeska, overlaps and duplicates the voluntary assumption of risk doctrine. See Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 456-57 (Tex.1972); 2 F. Harper & F. James, The Law of Torts, § 21.8, at 1191 (1956). The no-duty doctrine is so unique to Texas that we find no helpful literature in any other jurisdiction. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 377 (Tex.1963). Speaking of the proponents of the no-duty terminology, Professor Robert Keeton has written: “. . . the objective of this group is a good one, but their way of working for its accomplishment leads to confusion.” He concludes also that it is an alternative formulation of the assumption of risk doctrine. Keeton, Assumption of Products Risks, 19 Sw. L.J. 61, 67 — 69 (1965). We wrote in Coleman v. Hudson Gas & Oil Corp., 455 S.W.2d 701, 702 (Tex.1970), “In passing, we might question the usefulness of speaking as though there were some special rule in the owner, occupier, general contractor-invitee field requiring the invitee to ‘negative no duty.’ ”

7. A large body of Texas law, which has never been overruled, demonstrates that premises cases are more easily tried under ordinary negligence and contributory negligence principles. Our decision in Harvey v. Seale, 362 S.W.2d 310 (Tex.1962), abolished the no-duty requirements in a limited class of premises cases and returned them to trials upon negligence principles, that is, whether the plaintiff and defendant acted reasonably. See generally Keeton, Annual Survey of Texas Law, Torts, 29 Sw. L.J. 2, 4 (1975). A number of earlier decisions show that all premises cases are more understandably tried that way. In 1952, Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App.1952, writ ref’d n. r. e.), cited and discussed the cases that had tried premises cases as negligence cases. The next year the supreme court in Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 63-64 (1953), relied upon the same precedents as controlling over the no-duty holding of Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948). More recently this court again cited and reasserted the validity and simplicity of the same cases in Rosas v. Buddies Food Store, 518 S.W.2d 534, 539 (Tex.1975), as reasons for abolishing voluntary assumption of risk. In Farley, we adopted those reasons.

This is a partial list of premises cases that were tried on simple negligence and contributory negligence issues: Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950); Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (1948); United Gas Corporation v. Crawford, 141 Tex. 332, 172 S.W.2d 297 (1943); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941); McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941); Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698, 699 (1940); Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227 (1888); Dunlap v. Executive Inn Motor Hotel Corporation, 404 S.W.2d 842 (Tex.Civ. App.1966, writ ref’d n. r. e.); Mundy v. Stiles, 257 S.W.2d 750 (Tex.Civ.App.1953, writ ref’d n. r. e.); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App. 1949, writ ref’d n. r. e.); Texas & N. O. R. R. Co. v. Wood, 166 S.W.2d 141 (Tex.Civ.App.1942, no writ); Northcutt v. Magnolia Petroleum Co., 90 S.W.2d 632 (Tex.Civ.App. 1936, writ ref’d).

The facts in Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950), were that Mr. Blanks was a tenant on the ninth floor of the hotel. There was no elevator from the eighth to the ninth floor. He fell while ascending the steps in the dark stairs. The defendant hotel pleaded that it owed no duty because Mr. Blanks knew the stairs were dark, but the case was tried on negligence and contributory negligence issues.

This court refused to hold either that there was no duty owing the tenant or that the tenant was eontributorily negligent as a matter of law. Writing about Mr. Blanks’ knowledge of the condition, this court wrote: “He was aware, as indicated by his movements, that his predicament had become hazardous but such awareness is not conclusive that he was negligent as a matter of law in making use of the passageway.” Blanks, supra, 229 S.W.2d at 360.

There are many instances in which a person of ordinary prudence may prudently take a risk about which he knows, or has been warned about, or that is open and obvious to him. His conduct under those circumstances is a matter which bears upon his own contributory negligence. Contributory negligence is defined in the case sub judice as the “failure to use ordinary care . to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” One’s conduct after he is possessed of full knowledge, under the circumstances may be justified or deemed negligent depending upon such things as the plaintiff’s status, the nature of the structure, the urgency or lack of it for attempting to reach a destination, the availability of an alternative, one’s familiarity or lack of it with the way, the degree and seriousness of the danger, the availability of aid from others, the nature and degree of the darkness, the kind and extent of a warning, and the precautions taken under the circumstances by a plaintiff in walking down the passageway. Those are matters which bear upon “the reasonableness of an actor’s conduct in confronting a risk . under principles of contributory negligence.” Farley, supra, 529 S.W.2d at 758. See Annot., Premises Liability — Inside Hall, 24 A.L.R.3d 388, 391-92 (1969); Keeton, Assumption of Products Risks, 19 Sw. L.J. 61, 67 — 69 (1965). It was said in Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413, 417-18:

To use an “open and obvious” condition as a separate defense is misleading for
the further reason that it is not every “open and obvious” condition of danger that precludes recovery. Danger is relative, and a person of ordinary care may incur some hazards. This is the holding in McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442, 447, where a plaintiff was injured when he knowingly went into an area of escaping gas for the purpose of pointing out the condition of danger to the defendant’s agent. Though he had actual knowledge of the danger of escaping gas and had such information for two years, yet the Supreme Court said: “It is the established rule in this State that even where a person has knowledge, actual or imputed, of a defect, a question of fact as to negligence is presented unless it can be said, as a matter of law, that a person of ordinary care would not have incurred the risk.” And in Gulf, C. & S. F. R. Co. v. Gasscamp [sic], 69 Tex. 545, 7 S.W. 227, a plaintiff stopped and personally examined a defect in a bridge and knew of the presence of some danger, but still was not convicted of contributory negligence when he had no choice of routes to his destination. Knowledge of some danger is not always appreciation of the amount of danger. Temple Electric Light Co. v. Halliburton, Tex., 136 S.W. 584, affirmed 104 Tex. 493, 140 S.W. 426; Ridge v. Boulder Creek, etc., 60 Cal.App.2d 453, 460,140 P.2d 990; Andre v. Allynn, 84 Cal.App.2d 347, 190 P.2d 949; 30 Tex.Jur., Negligence, § 96. Negligence may still be a fact question when one knows or is chargeable with knowledge of danger, depending upon the measure of care exercised under those circumstances. Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585; Henwood v. Gilliam, Tex.Civ.App., 207 S.W.2d 904; Texas & N. O. R. Co. v. Blake, Tex.Civ. App., 175 S.W.2d 683; Northcutt v. Magnolia Petroleum Co., Tex.Civ.App., 90 S.W.2d 632, 633; San Angelo Water Light & Power Co. v. Anderson, Tex.Civ. App., 244 S.W. 571, 572; 65 C.J.S. Negligence § 121; 30 Tex.Jur., Negligence, § 96. These authorities dispel the idea that anything that can be seen precludes recovery because it is open and obvious. For these reasons an open and obvious condition should not be confused with the plaintiff’s initial and separate burden to prove knowledge of danger on the part of the owner. Nor should it be considered proof of contributory negligence as a matter of law in all instances. The phrase is better considered as a summation of strong facts that display contributory negligence as a matter of law. It includes a summation of the presence of danger and also that the invitee knew and appreciated that presence of danger, or should have. 38 Am.Jur., Negligence, 184. It means that the danger is so great and the condition so known and appreciated that it is clear and convincing to the point that reasonable minds can draw no other conclusion than that plaintiff was negligent. Northcutt v. Magnolia Petroleum Co., Tex.Civ.App., 90 S.W.2d 632, 633; San Angelo Water Light & Power Co. v. Anderson, Tex.Civ.App., 244 S.W. 571.

A plaintiffs knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant’s duty. A plaintiff may be contributorily negligent as a matter of law by reason of his conduct after he possesses knowledge of the condition. A condition that is open and obvious is proof of knowledge and appreciation as a matter of law, Massman-Johnson v. Gundolf, 484 S.W.2d 555 (Tex.1972), but that phrase is not “a separate concept.” Adam Dante, supra, 483 S.W.2d at 459. Knowledge and appreciation, though proved as a matter of law, do not necessarily establish contributory negligence as a matter of law. In a case that is controlled by the comparative negligence statute, a plaintiff’s contributory negligence that is established as a matter of fact or as a matter of law must then be compared with the negligence of the other parties, assuming that there is a finding of proximate cause in each instance.

Coffee v. F. W. Woolworth Co., 536 S.W.2d 539 (Tex.1976), was recently before this court. It concerned an injury to Mrs. Coffee when she ran into an empty platform inside the defendant’s store. The case was tried as a negligence case. The opinion stated the jury findings in support of the plaintiff’s negligence theory, but the opinion did not state that the jury refused to find that the plaintiff failed to keep such a lookout as a person using ordinary care would have kept. Our opinion discussed the occupier’s contention that the dangerous condition was open and obvious, and we held that the evidence did not establish that state of facts as a matter of law. We should have made clear in the opinion that an open and obvious condition relates to a plaintiff’s conduct under the contributory negligence issue.

We conclude that there is evidence which supports the jury findings that Mrs. Parker was not contributorily negligent in undertaking to descend the stairs or in the manner in which she descended the stairs. Cf. United Gas Corporation v. Crawford, 141 Tex. 332, 172 S.W.2d 297 (1943). There is evidence that she did not go down the stairs in darkness. She waited until a flashlight was obtained and Judge Massey had successfully moved downstairs ahead of her. She was descending the steps while the light was directed at the steps she was descending. She was holding to the rail and moving slowly and cautiously. See Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), Blanks v. Southland Hotel, supra; Lang v. Henderson, supra; Walgreen-Texas Co. v. Shivers, supra.

The plaintiff obtained findings that the defendant was negligent and that she was not negligent. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

McGEE, J., concurs.

McGEE, Justice,

concurring.

I agree with the opinion, but I would add that there should be no instruction to the jury concerning an open and obvious situation since that is a factual matter that bears upon a plaintiff’s conduct (his contributory negligence) after he has knowledge or is charged with knowledge. Such an instruction would amount to a comment upon the weight of the evidence. I would also add that there should be no instruction concerning knowledge or “no-duty,” since a plaintiff’s conduct after he possesses knowledge bears upon the reasonableness of his conduct under the circumstances.

      . Ultimately, the Texas Supreme Court may come to the point of deliberately wiping the slate clean and attempting to start over. It may entirely abandon the concepts of “no-duty,” volenti non fit injuria, and assumed risk, in favor of simple negligence and contributory negligence . . . . Greenhill, Assumption of Risk, 16 Baylor L.Rev. Ill, 112 (1964).

      . We therefore hold that for this trial, and henceforth in the trial of all actions based on negligence, volenti non fit injuria — he who consents cannot receive an injury — or, as generally known, voluntary assumption of risk, will no longer be treated as an issue. Rather, the reasonableness of an actor’s conduct in confronting a risk will be determined under principles of contributory negligence. Farley, supra, 529 S.W.2d at 758.

      . [W]e have two different concepts of assumed risk: (1) the no duty cases applicable to occupier-invitee situations, and (2) the volenti cases . applicable on the occupier’s premises and also to other assumed risk situations. Greenhill, Assumption of Risk, 16 Baylor L.Rev. Ill, 112 (1964).


author: ROBERTS, Judge. DOUGLAS, Judge, DOUGLAS, Judge.

text:
    Buford TELFAIR, Appellant, v. The STATE of Texas, Appellee.
    No. 53226.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    Opinion On State’s Motion For Rehearing May 10, 1978.
    Bennie C. Boles, Center, for appellant.
    Bill Warren, Dist. Atty., Center, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation. Appellant originally pleaded guilty to a charge of attempted murder; punishment was assessed at eight years, probated. Subsequently, on January 15, 1976, the court revoked appellant’s probation and imposed sentence.

An examination of the record reveals that the indictment is fundamentally defective. This is error which this Court will consider in the interest of justice. Art. 40.09(13), Vernon’s Ann.C.C.P.

Omitting the formal parts, the indictment alleges that on or about October 4, 1975, in Shelby County, Texas, the appellant:

“did then and there intentionally and knowingly attempt to cause the death of Marvin McClelland, Mattie C. Handy, Mary Louise Williams, and Jerry Preston, by shooting them with a gun.”

V.T.C.A., Penal Code, Sec. 15.01(a), reads as follows:

A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

V.T.C.A., Penal Code, Sec. 19.02(a), provides:

“A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”

In Baldwin v. State, 538 S.W.2d 615, 616 (Tex.Cr.App.1976), we held that one of the elements of the offense of criminal attempt is the specific intent to commit an offense.

In Garcia v. State, 541 S.W.2d 428, 430 (Tex.Cr.App.1976), another attempted murder case, we again emphasized that the specific intent to commit an offense is a necessary element of criminal attempt under Section 15.01. This is in accord with the language of Article 21.05 of our Code of Criminal Procedure, which provides that “[w]here a particular intent is a material fact in the description of the offense, it must be stated in the indictment.” (Emphasis added.)

We can only conclude that the “specific intent to commit an offense” is both a particular intent and a material fact in the description of the offense of criminal attempt; therefore, it must be alleged in any indictment charging criminal attempt. Since the indictment in this case failed to allege this particular intent, the judgment must be reversed.

Nor can it be argued that the State satisfied its burden of pleading by alleging in general terms that the appellant acted intentionally. In Victory v. State, 547 S.W.2d 1, 4 (Tex.Cr.App.1976) (Opinion on State’s Motion for Rehearing), we held that the allegation of the general culpable mental state “intentionally” does not dispense with the need to allege the particular intent required by Article 21.05.

For the foregoing reasons, the judgment is reversed and the prosecution under this indictment is ordered dismissed.

DOUGLAS, Judge,

dissenting.

The indictment alleges that appellant “. . did then and there intentionally and knowingly attempt to cause the death of Marvin McClelland, Mattie C. Handy, Mary Louise Williams, and Jerry Preston, by shooting them with a gun.”

The majority holds that the indictment is fundamentally defective because it fails to allege the “specific intent to commit an offense.” Such reasoning would require an indictment to allege in effect that the accused intentionally intended attempted murder, or that he intentionally attempted to murder with intent.

Today’s holding contravenes the express language of Article 21.11, V.A.C.C.P., which provides in part:

“An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; . . .” (Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1,1966).

The allegation, all in one sentence, in the instant case that appellant intentionally attempted to kill conveys the meaning that he made such an attempt to murder. It does not take a lawyer to see this.

The most recent case of this Court is contrary to the majority opinion. In Prodon v. State, Tex.Cr.App., 555 S.W.2d 451 (1977), the indictment alleged that appellant unlawfully committed “an offense hereafter styled the primary offense in that he did attempt to enter a building owned by Elizabeth Leal by removing a ventilator and cutting a hole in the roof, having intent to commit burglary.” In' that case we rejected the defendant’s contention that the indictment was fundamentally defective because it failed to allege the particular intent required by the attempt statute. Only one intent was alleged in that indictment.

In the case at bar appellant filed no exception or motion to quash the indictment. He knew that he was charged with attempted murder and was not misled or harmed in any way.

The judgment should be affirmed.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The State’s motion for rehearing is granted.

On original submission, although not raised by appellant, the majority reversed and dismissed the prosecution because a “specific intent to commit an offense” was not alleged.

In substance, the indictment alleged that appellant

“. . . did then and there intentionally and knowingly attempt to cause the death of Marvin McClelland, Mattie C. Handy, Mary Louise Williams, and Jerry Preston by shooting them with a gun.”

The case of Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973), answers the question. Even though it concerned an indictment under the former code, it construed the word “attempt” as sufficient to include the word “intent.” In the present case, “attempt” was used instead of “intent.”

Branch’s Annotated Penal Code, 2d Edition, Section 1866, cites the correct rule as follows:

“The word ‘attempt’ is a word of more comprehensive meaning than the word ‘intent’ and includes the latter; . . . ”

For further reasons, see Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978).

The ground raised on appeal from the order revoking probation that evidence to revoke is insufficient will be discussed. Appellant had been convicted for attempt to murder. His punishment was assessed at eight years and he was placed on probation.

The motion to revoke probation alleged:

“a. On or about the 15th day of December, 1975, in Shelby County, Texas, the Defendant did then and there intentionally and knowingly remain in a habitation of Emma Jean Dock without the effective consent of the said Emma Jean Dock, and the said Buford Telfair after having received notice to depart, to-wit: the owner of said premises had by oral communications told the said Buford Tel-fair to depart, the said Buford Tel-fair failed to depart;
“b. On or about the 15th day of December, 1975, in Shelby County, Texas, the Defendant did then and there intentionally and knowingly threaten Emma Jean Dock with imminent bodily injury;
“c. On or about the 15th day of December, 1975, in Shelby County, Texas, the Defendant did voluntarily and immoderately drink and consume alcoholic beverages, and did wilfully get drunk.”

The court found that all the conditions of probation had been violated.

Without determining the sufficiency of the evidence to sustain the finding of a violation of conditions a and b, we hold that the evidence is sufficient to show a violation of condition c.

On the day in question, appellant, who was drinking, went to the home of Emma Jean Dock, his former girlfriend, in Shelby-ville. He drank two beers while he was there. They had a disagreement. She testified that appellant threatened her and “he said he would make me kill him or he’d kill me before daylight. But Buford was always doing something like that”, and, “I think he really wanted to make me kill him.”

She related that she asked him to leave, but he refused to leave. She held a gun on him and called the police to remove him.

On cross-examination, she related that she had been going with appellant. When she was asked why she went to see him in jail, she answered:

“When he first went to jail, I wanted to know why he shot Mary cause she was only six years old and I knowed he cared about her,”
and
“Before Buford went to jail, I told him we had to stop seeing each other cause I was — he was scaring the kids. He stayed drunk too much, so I told him I was going to stop seeing him. I was tired of it. Except Buford didn’t understand that.

J. H. Black, Jr., testified that he was a dispatcher for the “city-county police facility” when appellant was brought in by Constable Butch Adams from Shelbyville; that appellant had an odor of alcohol on his breath, and that he was placed in jail for public intoxication. He related that he could not tell if appellant was intoxicated.

O. F. Adams testified that he had been a constable eleven years and had seen many people who were intoxicated. He testified that when he went to Emma Jean Dock’s house appellant was drinking a can of beer and that he was intoxicated. “He wasn’t down drunk, but he was under the influence enough I feel like he was drunk. . . . ”

The trial judge had before him sufficient evidence to conclude that appellant was intoxicated and that he had violated condition “c” of the order granting probation.

No reversible error has been shown. The judgment is affirmed.

ONION, P. J., and ROBERTS, PHILLIPS and DALLY, JJ., dissent for the reasons stated in the dissenting opinion in Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978).

VOLLERS, J., not participating.

REAVLEY, Special J., concurs in this opinion.

      . We also held in Baldwin that where the offense is attempted murder, the State, in proving the specific intent to commit murder, need not prove that the accused intended to kill, but must only prove that he intended to cause serious bodily injury. See V.T.C.A., Penal Code, Sec. 19.02(a)(2), supra.

      . Judge Vollers did not participate in the decision of this cause because he acted as counsel for the State prior to his becoming judge of this Court. He certified to Governor Briscoe, under Article 5, Section 11 of the Constitution of Texas, that he was disqualified to sit in this cause and that the votes by the other members of the Court were equally divided. The Honorable Dolph Briscoe, Governor of Texas, appointed the Honorable Thomas M. Reavley, a former justice of the Supreme Court of Texas, to sit in this cause.


author: DOUGLAS, Judge.

text:
    Wesley TARPLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 54343.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 10, 1978.

      Stan Brown, Jim Ahlstrand, on appeal only, Abilene, for appellant.
    Lynn Ingalsbe, Dist. Atty., and James H. Smart, Jr., Asst. Dist. Atty., Abilene, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of credit card abuse. Punishment was assessed by the jury at eight years.

Appellant contends (1) that the evidence is insufficient to support his conviction; (2) that evidence introduced was obtained as a result of an unlawful arrest and search; (3) that the prosecutor commented on his failure to testify, and (4) that he was denied an examining trial and counsel at arraignment. We overrule these contentions and affirm.

Appellant contends that the evidence is insufficient to show that he solicited, encouraged, directed or aided his co-defendant in such a way as to make him a party to the offense.

On January 27, 1976, appellant and his co-defendant, John Wayne Hudson, entered the Sun Valley Motor Lodge in Abilene. There, Hudson rented hotel room number nine from Mrs. Emmett Martin, co-proprietor of the Lodge. In payment for the room, he presented a BankAmericard credit card in the name of J. M. Gassiot. Emmett Martin testified that, although he could not be positive, appellant looked like the man who accompanied John Hudson into the Sun Valley Lodge.

The next morning Emmett Martin observed that the car license number noted on John Hudson's room registration card did not match the license number of the car parked in the space reserved for room nine. Martin called BankAmericard security in Forth Worth and was informed that the credit card used by Hudson was stolen. BankAmericard Security notified the Abilene Police Department.

Abilene Police Detective Jack Dieken testified that after receiving a call from Ban-kAmericard Security in Fort Worth he and a patrolman proceeded to room number nine at the Sun Valley Lodge. John Hudson opened the door and admitted the officer. Appellant emerged from the bathroom area and both men were placed under arrest. A search produced a brown leather wallet containing a BankAmericard and numerous other credit cards and receipts belonging to Imported Auto Parts Corporation and bearing the name of Jimmie Gassi-ot. Also found were fifty checks belonging to Imported Auto Center of Fort Worth. Among these were checks drawn to the order of Jimmie Gassiot in varying amounts. The number of the BankAmeri-card found in room number nine matched the number of the card used by John Hudson to pay for overnight lodging in the complainants’ establishment. The key to room nine had been removed from its plastic tag and was found on appellant’s key ring. Also found in room nine was a lock-box belonging to appellant which contained personal papers bearing the name of Wesley Joe Tarpley, a .32 caliber pistol and shells, and a BankAmericard in the name of Overseas Imported Auto Parts and bearing the signature of James L. Adams. Also found in appellant’s lockbox were 73 blank checks belonging to “Overseas Imported Auto Parts” and “Imported Auto Center” of Fort Worth, several credit cards marked Overseas Imported Auto Parts, a Social Security card bearing the name James L. Adams, and a Selective Service card belonging to James M. Gassiot.

Jimmie Gassiot testified that he was employed as a travelling salesman for Imported Auto Center in Fort Worth, a division of Imported Overseas Auto Parts, and that numerous credit cards had been issued to him in this capacity. He further testified that in mid-December, 1975, a burglary had been committed at Overseas Auto Parts in which numerous company checks and credit cards belonging to him and other employees were stolen. Gassiot stated that none of the signatures appearing on the receipts introduced into evidence were his and he had given no one authorization to use his credit cards or to sign his name.

The evidence was sufficient to support appellant’s conviction. A defendant is guilty as a party (principal under the former penal code) where he (1) is physically present at the commission of the offense and (2) encourages the commission of the offense either by words or other agreement. Baldridge v. State, 543 S.W.2d 639 (Tex.Cr.App.1976); Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974). In determining whether one has participated as a party, the trial court may look to events occurring before, during and after the commission of the offense and reliance may be placed on actions of the parties which show an understanding and common design to do a certain act. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Bush v. State, supra.

Appellant argues that, because he himself did not rent room number nine from the complainant and because the stolen BankAmericard used to fraudulently obtain lodging was found in the co-defendant’s luggage, there is no evidence connecting him with the instant offense. This argument is without merit. One may be guilty as a party whether he aided in the commission of the offense or not. Prior v. State, supra; Bush v. State, supra, citing Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W.2d 1046 (1920); Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974). Appellant’s presence at the commission of the offense is undisputed. Moreover, the facts and circumstances surrounding the offense were sufficient to show that (1) appellant was in possession of stolen credit cards, (2) that he knew John Hudson to be in possession of one or more stolen credit cards obtained from the same source, and (3) that an agreement existed between them to utilize a stolen credit card to fraudulently obtain lodging at the Sun Valley Motor Lodge.

Tarpley asserts that the court erred in admitting into evidence fruits of the search incident to appellant’s warrantless arrest. He'contends that sufficient time existed for the arresting officer to procure an arrest warrant. Article 14.04 of the Code of Criminal Procedure provides that a peace officer may, without a warrant, pursue and arrest an accused where a credible person represents to such officer that a felony has been committed, that the offender is about to escape, and where there is, consequently, no time to procure a warrant.

In the present case, Detective Dieken had a right to rely upon BankAmericard Security officer Joe Bellew as a credible source of information. It is well established that an officer who does not himself possess probable cause for making a warrantless arrest may act upon the basis of information relayed to him by another officer requesting that an arrest be made. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974); Muggley v. State, 473 S.W.2d 470 (Tex.Cr.App.1971); Brown v. State, 443 S.W.2d 261 (Tex.Cr.App.1969). The individual requesting arrest need not necessarily be a uniformed police officer. See Weeks v. State, 417 S.W.2d 716 (Tex.Cr.App.), cert, denied 389 U.S. 996, 88 S.Ct. 500,19 L.Ed.2d 494 (1967), and Boatright v. State, 472 S.W.2d 765 (Tex.Cr.App.1971).

The test for probable cause for a warrantless arrest made on the strength of another’s report is the information known to the person reporting. Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975); Hooper v. State, supra; Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974). If the requesting officer is in possession of sufficient knowledge to constitute probable cause, then he need not detail such knowledge to the arresting officer. Piper v. State, 484 S.W.2d 776 (Tex.Cr.App.1972); Branch v. State, 447 S.W.2d 932 (Tex.Cr. App.), cert. denied 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 864, rev’d on other grounds, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1969).

BankAmericard Security officer Bellew possessed information constituting probable cause for appellant’s warrantless arrest, whether or not every detail of such information was communicated to Detective Dieken. Bellew was informed by Emmett Martin that the license number of appellant and Hudson’s car was not the same as it was purported to be on the hotel registration card. Martin further informed Bellew of the number of the credit card used by Hudson and appellant to obtain lodging. Bellew knew this to be the number of a credit card stolen in a Fort Worth burglary.

In Harryman v. State, 522 S.W.2d 512 (Tex.Cr.App.1975), officers were informed by a motel manager that a rifle removed from the defendant’s room had been stolen in a Colorado burglary and that the license plates listed on the defendant’s guest registration card were also stolen. The officers had probable cause to make a warrantless arrest. In Skidmore v. State, 530 S.W.2d 316 (Tex.Cr.App.1975), police information that the defendants were using a stolen credit card and automobile constituted probable cause for their warrantless arrest. Officer Bellew had probable cause to believe that the felony of credit card abuse had been committed, and Detective Dieken was justified in arresting appellant upon this information.

Appellant contends that there was no basis for the belief that he and the co-defendant were preparing to escape. Officer Dieken testified at the hearing on appellant’s motion to suppress that Bellew had been informed by Emmett Martin that the two men were about to leave the motel. He further stated that the procurement of an arrest warrant would not only have required forty-five minutes to an hour, but that it would have been impossible to obtain in view of the fact that appellant and his co-defendant’s names were unknown to the police. Emmett Martin testified that appellant and Hudson did not appear for morning coffee in response to a 7:00 wake-up call, that he could not see their car from the hotel desk and that he feared that they had driven off. He communicated these fears to BankAmericard Security officer Bellew and arresting Officer Dieken.

Contrary to appellant’s contention, the fact that he and Hudson were not in the act of escaping at the time of the arrest is immaterial. The record reflects that the two men were dressing when the arrest was made. Their luggage was partially packed and clothes had been removed from the closet and placed on one of the beds. There was no information which would have indicated to Officer Dieken that appellant and Hudson were planning to stay in the room long enough for him to procure a warrant. Officer Dieken had probable cause to believe that a felony had been committed and that the offenders were about to flee. The warrantless arrest was lawful.

Appellant also urges this Court to find that the search conducted pursuant to the arrest was. unlawful as being beyond the scope of Chimel v. California, 395 U.S. 75, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We decline to so hold.

At the hearing on appellant’s motion to suppress, Detective Dieken testified that prior to his arrival at the Sun Valley Lodge he was contacted by Detective Charles Tim-mons of the Fort Worth Police Department. Detective Timmons, who had handled the burglary of Overseas Imported Auto Parts, informed Detective Dieken that a .12 gauge shotgun had been stolen in the burglary. He warned Dieken to be cautious because appellant and Hudson might be armed.

The record shows that upon his arrival at room number nine at the Sun Valley Lodge Officer Dieken exhibited his badge and identified himself to John Hudson who allowed him to enter the room. At that time, and prior to the conduct of any search, both appellant and Hudson were placed under arrest. Incident to appellant’s lawful arrest, the officer conducted a search of an open suitcase which lay on the bed within reach of both suspects. An examination of the back pouch of the suitcase revealed the brown leather wallet which contained the BankAmericard used by Hudson and appellant to fraudulently obtain lodging at complainant’s hotel. The officers’ search extended to farther than the area within the suspects’ immediate reach. All other luggage and belongings were inventoried at the police station.

The search conducted in the present case is precisely the type of search which the United States Supreme Court approved in Chimel v. California, supra. The language of the Court’s decision is now familiar:

“[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control.’ ”

Accord Wood v. State, 515 S.W.2d 300 (Tex. Cr.App.1974); Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974); Sheldon v. State, 510 S.W.2d 936 (Tex.Cr.App.1974); Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973).

Appellant argues that the arresting officer could not have been looking for a shotgun when he examined the back pouch in the top of the suitcase. Whether or not the officer was specifically searching for a shotgun is immaterial. Detective Dieken had been warned that appellant and Hudson might be armed, possibly with a shotgun. This in no way precluded the possibility that they possessed other weapons. The officer was entitled to search the entire area within appellant’s reach for weapons or evidence whether or not a specific item searched was large enough to accommodate a shotgun.

Appellant further argues that the search exceeded the permissible scope of a search incident to an arrest inasmuch as the brown leather wallet and the credit cards within it were not in plain view of the arresting officer. In support of this argument, appellant relies upon the general discussion of the plain view doctrine contained in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

This argument is without merit. Evidence and weapons which may be seized without a warrant incident to lawful arrest under Chimel need not be in plain view. Indeed, it is the gravamen of Chimel that an arresting officer must be permitted to search the area within a suspect’s immediate control not only for weapons and evidence which are in plain view but also for those which are hidden. Were the seizure of evidence or weapons incident to arrest limited to those items in plain view, the protective purpose of such a search would be completely defeated. In Coolidge, the Supreme Court of the United States pointed out that the plain view doctrine is not in conflict with the law of search incident to valid arrest expressed in Chimel, but is, rather, complementary and an adjunct to it. 403 U.S. at 465, footnote 24, 91 S.Ct. 2022.

Tarpley next contends that the court erred in admitting into evidence numerous checks and credit cards stolen from Overseas Imported Auto Parts, and credit receipts for the use of such stolen cards, on the grounds that such evidence tended to show inadmissible extraneous offenses. Such evidence was admissible to show appellant’s guilty knowledge, intent, and system for utilizing such stolen credit cards and checks to fraudulently obtain property or services. Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974); Barnes v. State, 503 S.W.2d 267 (Tex.Cr.App.1974). This evidence was admissible as a circumstance surrounding the arrest or as referred to as a part of the res gestae of the arrest.

Appellant contends the trial court erred in denying his motion for mistrial after the following remarks were made by the district attorney during argument at the penalty stage of the trial:

“The Legislature has set the punishment range from two to ten years, and said look at the individual case involved. Look at the individual case. We’re not dealing in this case with an eighteen year old first offender. We’re dealing with a forty year old ex-con who carries a gun around with him, who, whether he burglarized the place in Fort Worth or not, I don’t know, but he ended up with an awful lot of things that got stolen from it.
“He’s shown no reason to me, and I don’t think he’s shown you any reason why he shouldn’t be put away — ”

Appellant’s objection to the remark as a comment on his failure to testify was sustained and an instruction to disregard was given. If the prosecutor’s remarks may be reasonably construed from the jury’s standpoint as referring to appellant’s failure to call another witness than himself, reversal is not called for. Brown v. State, 475 S.W.2d 761 (Tex.Cr.App.1971).

We further conclude that the prosecutor’s argument could reasonably have been taken as a reference not to appellant’s failure to testify but to his failure to present witnesses or evidence of any kind in his behalf. No reversible error is shown.

Tarpley asserts that the indictment against him should have been dismissed on the grounds that he was not afforded an examining trial nor appointed counsel prior to arraignment. He asserts that upon arrest he requested counsel and an examining trial and that these were denied him. Counsel was appointed at arraignment on February 20, 1976.

The record contains no evidence in support of appellant’s claim. He did not testify at any time and there is no other evidence which shows that he either requested or was refused counsel or an examining trial. In Gooden v. State, 425 S.W.2d 645 (Tex.Cr.App.1968), this Court held that the failure to grant the defendant an examining trial was not an erroneous deprivation of effective assistance of counsel in view of the fact that (1) there was nothing in the record to indicate that the defendant had requested an examining trial, (2) the return of an indictment terminates the right to an examining trial, and (3) failure to grant an examining trial does not affect the indictment’s validity.

Tarpley finally argues that the court erred in refusing his motion to dismiss the indictment on the grounds that the grand jury did not consider all available testimony prior to the return of the indictment.

There is no evidence supporting this claim. This Court will not go behind the actions of the grand jury to determine whether sufficient evidence existed to justify the return of an indictment. Gulley v. State, 505 S.W.2d 567 (Tex.Cr.App.1974). Were we to accept appellant’s claim that evidence was presented to the grand jury by the district attorney alone, such would not constitute reversible error. Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974). An indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial of the charge on the merits. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

No error is shown. The judgment is affirmed.


text:
    J. H. Yelton STAPLETON, Appellant, v. The STATE of Texas, Appellee.
    No. 54499.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 10, 1978.

      Robert S. Williams, Port Worth, for appellant.
    Charles F. Campbell, Jr., Dist. Atty., Hillsboro, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

J. H. Stapleton appeals from his conviction for the offense of murder. Punishment was assessed by the jury at life.

Appellant, among other things, complains of the court’s denial of his uncontroverted motion for change of venue.

Briefly summarized, the record shows that on February 7, 1976, appellant was at the residence of Ira Lane in Blum. With appellant were his wife and two teenaged sons. A number of other persons were present at the Lane home, including the deceased and the deceased’s mother, brother, sisters and grandmother. An argument ensued between appellant and several others, after which appellant went out of the house and retrieved a rifle from his pickup truck. The witnesses heard a gunshot and saw the deceased, ten-year-old Susan Rene Williams, lying dead on the sidewalk outside the Lane house. Appellant stood in close proximity to her holding a “smoking” rifle in his hands.

Appellant complains of the court’s denial of his application for change of venue which the State concedes was never controverted. Appellant’s motion for change of venue was drafted in accordance with Article 31.03, V.A.C.C.P. It was supported by the affidavits of two compurgators and was filed prior to the parties’ announcing ready for trial. He relies upon Flores v. State, 493 S.W.2d 785 (Tex.Cr.App.1973), and Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967), for the proposition that under such circumstances it was error as a matter of law for the court to deny the application.

In Wall, this Court held that the defendant’s motion for change of venue was erroneously denied because it remained uncon-troverted by the State and because there was no hearing on the motion. Hence, the trial court had no basis for overruling an uncontroverted motion drafted in compliance with Article 31.03, supra.

Article 31.04, V.A.C.C.P., provides:

“The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant.”

No evidence was offered on the application by either side.

In Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72 (1921), the Court wrote:

“The presentation of an application for change of venue, properly verified, makes it incumbent upon the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion. . . . ”

In March of this year this Court reversed the conviction in Durrough v. State, 562 S.W.2d 488 because no controverting affidavits to an application for a change of venue had been filed. The Court held that Dur-rough was entitled to a change of venue as a matter of law.

For the reasons stated above, the judgment is reversed and the cause is remanded.


author: TOM G. DAVIS, Judge.

text:
    Deborah MORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 54591.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 10, 1978.
    Joe Petronis, Killeen, for appellant.
    Pat Ridley, County Atty., and Thomas S. Morgan, Asst. County Atty., Belton, J. Rush Milam, III, City Atty., Killeen, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the offense of prostitution. V.T.C.A., Penal Code, Sec. 43.02(a)(1). The trial court assessed punishment at a fine of $200.

Initially the appellant challenges the sufficiency of the evidence to support the conviction.

Frank Aaron, Jr., a reserve sergeant with the Killeen Police Department, testified that on the date of the offense he was on duty in civilian clothes in the downtown Killeen area. At approximately 10:45 p. m. on November 1, 1975, he was standing in front of the Fogle Auto Supply Store when he was approached by the appellant. She initially asked him if he were a “nare,” which he denied. She then asked, “Are you ready?” He responded, “Ready for what?” At this point, according to Aaron, the appellant was about two or three feet from him and she made “a driving motion with her body, with her shoulders, hips, and legs.” He said he could “dig it” and asked what it was going to cost since he understood her motions to mean that she was offering to have sexual intercourse with him. She then asked him how much money he had and he told her that he could spend $20. She said, “That would get it.” They then agreed to meet at a place she had nearby. The appellant left and Aaron was signaled by some officers who had him under observation to remain where he was. Aaron additionally testified without objection that the offense occurred on a military payday weekend and that there was a high incidence of prostitution activity at that time in Killeen.

On cross-examination, Aaron testified that prior to the night of the alleged offense he did not recall having seen the appellant’s picture among those of known prostitutes that were kept by the Killeen Police Department.

Officer Reed of the Killeen Police Department testified that on November 1, 1975, he observed a conversation between Prank Aaron and the appellant. Reed stated that after he received a signal from Aaron, he identified the female that he had been talking to as the appellant. He testified that he was familiar with the appellant prior to November 1, 1975, and that his organization had a file on her at that time.

The appellant testified in her own behalf and stated that on the night in question she was simply out walking around the block and had asked Aaron for a light. She said that after they got talking, Aaron propositioned her. She testified: “He then asked me if I was working, and I asked him what did he mean by working, and he said, do you walk the block? And I said, what are you talking about? And he said, I wanted to go to bed. He said I have $20 and I just looked at him, you know.” She then asked him if he were a policeman and walked off.

The jury as the exclusive judge of the facts resolved the conflict in the testimony against the appellant. See Art. 36.13, V.A. C.C.P.

V.T.C.A. Penal Code, Sec. 43.02(a)(1), at the time of the instant offense provided that a person commits an offense if he knowingly offers to engage in sexual conduct in return for a fee payable to the actor. An offense under this provision was at that time a Class C misdemeanor. See V.T.C.A. Penal Code, Sec. 12.23.

The evidence is sufficient to sustain the conviction.

The appellant next contends that the trial court erred by failing to sua sponte declare a mistrial during the State’s argument.

The record reflects the following occurred during the prosecutor’s final argument:

“The State has never mentioned the defendant’s color. He has made that a big thing. He did mention that the police officer was inexperienced. Yes, and it was obvious even to this inexperienced police officer that she had solicited him on Ave. D.
“We all went through this and annually we go through on April the 15th paying our taxes to be sure that we have admirably supported—
“MR. MORRIS [defense counsel]: Objection, Your Honor, counsel is getting outside of the record again.
“THE COURT: Sustain the objection. “MR. MILAN [prosecutor]: Be that as it may, this is illegal income she is getting. “MR. MORRIS: Objection, Your Honor. I would like to object. There has been no testimony that my client has received any money and I again feel that the counsel is bringing up matters outside of the record. “THE COURT: I will sustain the objection.”

There was no request for an instruction, nor any motion for a mistrial. The appellant received all the relief she requested. Moffett v. State, Tex.Cr.App., 555 S.W.2d 437; Salinas v. State, Tex.Cr.App., 542 S.W.2d 864; Holloway v. State, Tex.Cr. App., 525 S.W.2d 165. The argument was not such as to require the court to sua sponte grant a mistrial.

The judgment is affirmed.

      . V.T.C.A. Penal Code, Sec. 43.02, was amended by Acts 1977, 65 Leg., p. 757, ch. 286, sec. 1, effective May 27, 1977, making minor wording changes in the section and elevating this offense from a Class C misdemeanor to a Class B misdemeanor.