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

text:
    Larry Kenneth DOCKERY, Appellant, v. The STATE of Texas, Appellee.
    No. 49932.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Motion for Rehearing Oct. 20, 1976.

      Donald P. Maierson (On appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Tim Alexander, Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of negligent homicide in the first degree under the former Code. His punishment was assessed by the jury at confinement in jail for 180 days.

Appellant was tried in 1974. He contends that he should not have been tried because negligent homicide is not named as an offense under the present penal code.

The information alleges in substance that appellant on or about November 30, 1973, while in the performance of a lawful act, was handling a pistol without an apparent intention to kill Burnette Clyde George (the deceased); that there was an apparent danger causing the death of the deceased; that he discharged his pistol thereby killing the deceased; that the death was caused by the defendant’s acts of negligence and carelessness and failing to exercise that degree of care and caution as a person of ordinary prudence would have done under like circumstances; and that (1) he failed to use the care of an ordinary prudent person in the operation of a deadly weapon, (2) failed to aim the pistol away from the person of deceased, and (3) failed to exercise proper control over a loaded pistol. This was alleged under Article 1231 of the 1925 Penal Code.

The record reflects that appellant was sleeping on a mattress on the floor of an apartment. George entered, appellant pointed a pistol at George and was apparently attempting to uncock it when it discharged and hit George who evidently died at the hospital.

Appellant relies upon Section 6(b), V.T. C.A. Penal Code, which provides:

“Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act.

Section 6(c), V.T.C.A. Penal Code, Chapter 399, Saving Provisions, provides:

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

The specific statute under which appellant was prosecuted was repealed.

Appellant made no election to be sentenced under the present Penal Code.

The question is: Could the conduct of the appellant mentioned in Section 6(b), supra, be classified as an offense under the 1974 Penal Code?

Section 22.05, V.T.C.A. Penal Code, provides:

“(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
“(b) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.
“(c) An offense under this section is a Class B misdemeanor.”

Appellant, in oral argument, contended that an indictment or information must allege the elements' of the present Penal Code. If the elements of a crime under the present Code are different from the elements under the former Code, serious questions upon ex post facto or retroactive application of the present Code could be raised. This would be especially true in a case where an accused does not elect to be punished under the present Code.

We hold that it is not necessary for a pleading to allege all of the elements of the offense under the present Code.

Appellant did not elect to have his punishment assessed under the present Code. His conduct at the time it was committed was an offense. His conduct then, if committed after January 1, 1974, would be an offense under the present Code. If the accused elects to have the punishment assessed by the jury the trial court should instruct the jury using the range of punishment under the new Code, applying such law to the facts proved during both stages of the trial. See Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975).

Although not exactly in point, Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973), is similar. In that case the offense was for possession of marihuana charged as a felony under Article 725b, Section 2(a), V.A.C.C.P., prior to the adoption of the Texas Controlled Substances Act, Vernon’s Annotated Civil Statutes, Article 4476-15. Jones, who possessed only two ounces of marihuana, elected to be punished under the newer Act which provided that the possession of less than four ounces of marihuana was a misdemeanor. Section 6.01(c) of the Texas Controlled Substances Act provides:

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

The rest of the savings clause under that Act is like the savings clause of the new Penal Code.

Jones contended that the district court in which the indictment was returned lost jurisdiction because the offense was a misdemeanor. This Court held that the district court retained jurisdiction under the indictment which alleged the felony offense. The Court also held that Jones could not be convicted as a felon because the amount of marihuana involved was less than four ounces.

In that case the proof and not the indictment controlled the punishment to be assessed.

Likewise, in the present case the indictment alleges an offense under the former Code and the proof shows an offense under that Code and conduct that is an offense under the new Code.

To hold as appellant contends would allow those who have committed crimes such as the one in this case to escape punishment because an offense under the present Code contains a different name or different element even though slight.

We conclude that the evidence is sufficient to support the conviction.

No error is shown.

The judgment is affirmed.

ROBERTS and ODOM, JJ., concur in the result.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

This is an appeal from a conviction for negligent homicide in the first degree, as denounced by Article 1231 of our former Penal Code. After finding the appellant guilty, the jury assessed punishment at confinement in jail for 180 days. See Article 1238 of the former Code.

Omitting the formal parts, the information alleged that on or about November 30, 1973, the appellant did then and there

“while in the performance of a lawful act, was handling a pistol and while doing so the Defendant, without an apparent intention to kill Burnette Clyde George, the deceased, but there being an apparent danger of causing the death of the deceased and other persons, caused the death of the deceased by causing his pistol to discharge thereby killing the deceased, and the death of the deceased was caused by the Defendant’s acts of negligence and carelessness in failing to exercise that degree of care and caution as a person of ordinary prudence would have done under like circumstances in that he:
“1. failed to use the care of an ordinarily prudent person in the operation of a deadly weapon;
“2. failed to aim the pistol away from the person of the deceased;
“3. failed to exercise proper control over a loaded pistol.”

The appellant was tried after January 1, 1974, the effective date of our new Penal Code.

On rehearing the appellant presents the same contentions urged in his original brief: that the trial court was without jurisdiction to try him after January 1, 1974, and that the State failed to prove the elements of the corpus delicti. We overrule these contentions; it follows that appellant’s motion for rehearing must be denied and the judgment affirmed.

The record reflects that appellant was sleeping on a mattress on the floor of the bedroom in an apartment in Houston. The deceased walked into the bedroom with at least two others at approximately 1:00 p. m. on the date alleged in the information. The appellant, who was lying on his stomach, had a .32 caliber pistol in his hand. When the deceased entered the bedroom, the appellant “raised up off the floor and the pistol accidently [sic] went off, just that fast, it happened just that fast.” According to two eyewitnesses the appellant then stated that he “was trying to uncock the pistol and the pistol went off.”

The deceased was taken to a hospital, where he died. There is no evidence that the appellant intentionally or knowingly pointed the pistol at the deceased.

Appellant first contends that the acts alleged in the information do not constitute an offense under the new Texas Penal Code.

Appellant relies upon subsection 6(b) of the Savings Provisions of the new Code, which provides:

“Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a conviction existing on the effective date of this Act for conduct constituting an offense under laws repealed by this Act is valid and unaffected by this Act. For purposes of this section, ‘conviction’ means a finding of guilt in a court of competent jurisdiction, and it is of no consequence that the conviction is not final.”

Acts 1973, 63rd Leg., Ch. 399, pp. 883, 996, Sec. 6(b).

The appellant argues that since Article 1231 of our former Code was repealed by the new Code and since the conduct alleged is no longer an offense, it follows that the appellant could not be prosecuted after January 1, 1974.

Article 1231 was in fact repealed by the enactment of the new Code. Acts 1973, supra, at pp. 991, 994, Sec. 3.

Moreover, appellant is correct in his assertion that if conduct condemned by the former Code is no longer an offense under the present Code, the trial court is required to dismiss the charging instrument as soon as the evidence shows that the conduct alleged is no longer an offense. Ex parte Davila, 530 S.W.2d 543, 546 (Tex.Cr.App. 1976) (on motion for rehearing).

The issue then is whether the conduct alleged and proved is an offense under the new Code. Subsection 6(b), supra; Rockwood v. State, 524 S.W.2d 292, 293 (Tex.Cr. App.1975).

Criminally negligent homicide is an offense under our present Code. V.T.C.A., Penal Code, Sec. 19.07(a) provides:

“A person commits an offense if he causes the death of an individual by criminal negligence.”

V.T.C.A., Penal Code, Sec. 6.03(d) defines criminal negligence as follows:

“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.”

We conclude that the actions of appellant were sufficient to indicate that he ought to have been aware of the substantial and unjustifiable risk that his conduct might injure and kill the deceased, at whom the pistol was quite obviously pointed at the time it was fired. Clearly, the risk was of such a nature and degree that it constituted a gross deviation from the standard of care prescribed by Sec. 6.03(d).

Under our former Code, we would yet be faced with the question of whether the appellant’s acts were intentional or unintentional, since, as we said in Stiles v. State, 520 S.W.2d 894, 896 (Tex.Cr.App.1975):

“The difference between accidental homicide and negligent homicide is whether the act resulting in death was intentionally or unintentionally done. The focus is on the accused’s act, not on the result of his act. Accidental homicide is the result of an unintentional act while negligent homicide may only result from an intentional act. . . . (Emphasis in original.)
* * sfc ⅜ * *
“Another difference is that a jury finding of accidental homicide results in an acquittal, while a jury finding of negligent homicide results in the jury or the court assessing punishment within the range provided by law.”

After a careful consideration of Chapter Six of our new Penal Code, we have concluded that this precise distinction is no longer valid.

Section 6.03 of the new Code defines four culpable mental states. The highest of these is when “[a] person acts intentionally, or with intent.” V.T.C.A., Penal Code, Sec. 6.03(a). There are three lesser culpable mental states which are sufficient to establish criminal responsibility: when a person acts knowingly, or with knowledge; when he acts recklessly, or is reckless; and when he acts with criminal negligence, or is criminally negligent. V.T.C.A., supra, Secs. 6.03(a), (b), (c).

Thus, under this particular statutory scheme of our new Code, a person may act “unintentionally” — that is, without intent— and still commit a criminal offense, provided he acts with knowledge, recklessness, or negligence. This is in direct contrast to the holding of Stiles v. State, supra, and the cases on which it relies, which hold that a homicide which is the product of an unintentional act is no crime at all. It follows that the precise distinction drawn by Stiles —between intentional and unintentional acts — can no longer stand.

It is clear, however, that a homicide may still be accidental under our new Penal Code.

Section 6.01(a) of our new Code provides:

“A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that the conduct is an offense.” V.T.C.A., Penal Code, Sec. 6.01(a).”

By enacting this section the Legislature intended to assure that persons not be criminally punished for acts, omissions, and possessions not done voluntarily. Therefore, if a homicide is not the result of voluntary conduct, it cannot be criminally punished.

However, it is also clear that such a homicide must be accompanied by one of the four culpable mental states. See V.T. C.A., Penal Code, Secs. 19.01 — 19.07, and V.T.C.A., Sec. 6.03.

We conclude, therefore, that homicide is punishable only where the State proves both voluntary conduct and a culpable mental state. It follows that where criminal negligence has been proved — as it has in this case — the homicide may still not be subject to criminal penalties if the conduct which caused the homicide is not voluntary, and we so hold.

We also hold that the appellant’s actions were sufficiently voluntary to establish the offense of criminally negligent homicide under Section 19.07 of our new Penal Code. Appellant’s first contention is overruled.

Appellant’s remaining contention is that the State failed to prove the corpus delicti in that there is no proof that the shot fired by appellant caused the death of the deceased, or that death in fact resulted. Two of the eyewitnesses to the shooting testified that they took the deceased to the hospital immediately after the shooting, and one of them stated that he thought that it was at the hospital that the deceased died rather than in the car. This testimony was sufficient to show both causation and the fact of death. See Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974); Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973). .

This case is easily distinguishable from Jones v. State, 151 Tex.Cr.R. 114, 205 S.W.2d 603 (1947), relied upon by appellant. In Jones, the deceased walked away from the scene after being shot, and the State utterly failed to show that the shots fired caused his death. See Ware v. State, 480 S.W.2d 707 (Tex.Cr.App.1972).

This contention is overruled.

The motion for rehearing is overruled.

ODOM, Judge

(dissenting).

I dissent to the denial of appellant’s motion for rehearing and the affirmance of this conviction. The majority opinion on motion for rehearing succinctly states appellant’s second contention and its disposition as follows:

“Appellant’s remaining contention is that the State failed to prove the corpus delicti in that there is no proof that the shot fired by appellant caused the death of the deceased, or that death in fact resulted. Two of the eyewitnesses to the shooting testified that they took the deceased to the hospital immediately after the shooting, and one of them stated that he thought that it was at the hospital that the deceased died rather than in the car. This testimony was sufficient to show both causation and the fact of death.”

The relevant testimony describing the events upon which this prosecution was based includes the following excerpts: Witness Kelly testified:

“Q. After you first arrived at the apartment what happened? Excuse me, after Gregory and Burnett George first arrived at the apartment what happened?
“A. We walked in, we rushed in, and Larry said that we had frightened him when we rushed in.
“Q. Where was Larry at this time?
“A. He was laying down on the mattress.
“Q. Larry said you had frightened him when you first walked in?
“A. Yes.
“Q. Where was the pistol?
“A. He had the pistol in his hand.
“Q. Alright sir, what happened after you got in the apartment?
“A. Well, the pistol went off, Larry attempted to get up, he said he was trying to uncock the pistol and the pistol went off.
“Q. You said he was trying to get up. Was he lying on his side, his back, or what?
“A. On his stomach. He got up on one knee, he was getting up.
“Q. Alright sir, after the gun went off what happened?
“A. When he fell, and we saw that he was shot, we picked him up and took him to the hospital.
“Q. Alright, have you ever seen a dead person before?
“A. Yes sir.
“Q. Do you know whether or not he was dead in the car, or did he die after you got him to the hospital?
“A. After we got him to the hospital I think.”

Witness Graham testified as follows:

“A. We first walked in and like I said we headed for the rear of the bed. Larry raised up off the floor and the pistol accidently went off, just that fast, it happened just that fast.
“Q. It was in his hand at that time?
“A. Yes sir.
“Q. Did it appear that he was intending to shoot anyone?
“A. No sir.
“Q. Who did he shoot?
“A. He shot Clyde. He didn’t shoot anyone, the gun just went off.”

The majority find this evidence sufficient on authority of Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.), and Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.).

Regarding cause of death, Hines v. State quoted with approval from 29 Tex.Jur.2d, Homicide, Sec. 180, as follows:

“Opinion evidence is not the only mode of establishing the cause of the decedent’s death; circumstantial evidence may fully suffice for this purpose. It is not necessary to establish by the testimony of a physician the fact that the wounds inflicted by the defendant caused the death; it is sufficient if it appears from all the evidence that the wounds were sufficient to cause death, and that death occurred within a reasonable time after the wounds were inflicted. It is permissible to show the good health of the deceased prior to a shooting, his condition thereafter and his subsequent death.”

In the case at bar there is not one word describing the wound, or even whether it was to the head, chest, or foot. How can the majority on this sparse record conclude that “it appears from all the evidence that the wounds were sufficient to cause death”?

In Taylor v. State, supra, the other case relied on by the majority, it is written:

“Under the state’s testimony, it is shown that deceased was alive before being shot and that after the shooting he was dead at the scene with seven gunshot wounds on his body. Appellant admitted shooting deceased and gave the gun she used to Sheriff Reaves. The gun, which had seven empty cartridges in it, was introduced into evidence without objection. Proof of these circumstances is sufficient to establish that the cause of death of the deceased was the gunshot wounds received from the gun fired by appellant.”

In the instant case there was no such testimony of numerous gunshot wounds and death at the scene. In fact, a careful reading reveals that no witness was even asked if any wounds were inflicted or if death did in fact occur, although several questions assume death had occurred, and the only question as to time of death was answered, “After we got him to the hospital I think.”

In Williams v. State, 464 S.W.2d 114 (Tex.Cr.App.), it was stated:

“The appellant admitted shooting the deceased. Officer Rose identified the body at the hospital. Testimony revealed that she was an 18 year old girl and no evidence of bad health or other cause of death was shown.”

No witness here testified regarding the health or age of deceased or even that he was in fact dead.

The following excerpts from the record suggest the reason for this defect in the State’s case:

“MR. ALEXANDER: State calls Dr. Erickson. Your Honor, she may not have arrived yet. May I check and see if she has left yet?
“THE COURT: Was she under subpoena?
“MR. ALEXANDER: Yes sir. We talked to her just a few minutes ago Your Honor and she was on her way. * * * * * *
“THE COURT: Is there any other business we could take care of while we are waiting?
“MR. PATRICK: May I step across the hall Your Honor?
“THE COURT: Yes sir.
“MR. ALEXANDER: The State only has Dr. Erickson remaining as a witness in this case.
“THE COURT: Take the jury out Mr. Bailiff.
“THE COURT: Mr. Alexander it’s been over an hour ago.
“MR. ALEXANDER: Yes sir, I understand it’s been over an hour ago.
“THE COURT: Mr. Bailiff bring the jury in. Call your next witness.
“MR. ALEXANDER: State rests Your Honor and we will call Dr. Erickson in rebuttal.
“THE COURT: Call your first witness.
“MR. PATRICK: The Defense would rest without calling any witnesses.
“THE COURT: Alright. Here is the charge Mr. Patrick.”

Although the failure of the State to present this witness’ testimony may explain why the proof is deficient, it certainly does not excuse the State from the requirement to prove its entire- case beyond a reasonable doubt. This Court is powerless to supply the missing proof by speculation on what testimony Dr. Erickson might have given or by making evidence out of presumptions in the questions asked.

The case of Jones v. State, 151 Tex.Cr.R. 114, 205 S.W.2d 603, that the majority opinion seeks to distinguish, is more like the instant case on the issue of causation than those above distinguished. In Jones it was stated:

“Undoubtedly, the State proved that the deceased was dead by one who attended the funeral, and also proved that appellant shot the deceased twice with a pistol. However, the proof further shows that the deceased walked away after being shot. It would have been further shown that the deceased died as a result of wounds on his body created by these pistol shots. This is not shown, and under the law, the corpus delicti must appear as shown by the record. We find in the record no proof that the death of deceased was caused by the proven acts of appellant.”

In view of the total lack of evidence on the extent or nature of whatever wound was inflicted, or of any other evidence of cause of death, assuming arguendo that a death did occur, I would sustain appellant’s second ground of error, reverse the conviction, and remand the cause for a new trial.

I next dissent to the majority opinion’s discourse on the defense óf accident in homicide cases and its grounds for rejecting the test set out in Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.).

The majority, after citing V.T.C.A. Penal Code Sec. 6.03, Definitions of Culpable Mental States, reason that “intentional” is the highest culpable mental state, and that criminal offenses may be committed with lesser or “unintentional” culpable mental states, and from this conclude that “the precise distinction drawn by Stiles — between intentional and unintentional acts— can no longer stand.”

With respect to this reasoning, while I agree that the Stiles’ distinction is no longer viable (and never was a per se rule for all cases) for the reasons stated in footnote 1, I do not believe that “unintentional act” as used in Stiles may properly be equated with the less-than-intentional culpable mental states of Sec. 6.03.

In Stiles the intentional-unintentional distinction was used in describing the act resulting in death. Two of the less-than-intentional culpable mental states of Sec. 6.03, however, are defined in this language:

“(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. .
“(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. . . .” (Emphasis added.)

These two culpable mental states, then, are defined in such a way that they can properly be used to describe an actor’s mental state with respect to the circumstances surrounding the conduct or the result of the conduct, but they may not properly be used to describe the act itself. Thus, they may not be characterized as destructive of the “unintentional” category referred to in Stiles when one recalls that Stiles expressly pointed out, “The focus is on the accused’s act, not on the result of his act” (emphasis added), nor, it may be added, on the circumstances surrounding his act.

Also, I find the majority’s discussion of the role of V.T.C.A. Penal Code Sec. 6.01 and the “voluntary act” requirement something less than clear. The majority appear to hold that the absence either of a voluntary act or of a culpable mental state renders a homicide excusable as accidental. It is my opinion, for two reasons, that accidental homicide is distinguished from culpable homicide by the absence of a culpable mental state.

First, in a comparison of possible volitional or mental situations, involuntariness would rank below mere absence of a culpable mental state. That is, every instance of involuntariness is necessarily an instance lacking a culpable mental state, but not every instance ¡lacking a culpable mental state is necessarily an instance of involuntariness. If so, then the existence or not of a voluntary act is superfluous in defining the distinction between accidental homicide and culpable homicide because the line between those two is crossed before the involuntariness level is reached.

The second reason for my opinion that Section 6.01 and voluntariness issues play no role in distinguishing accidental homicide from culpable homicides is based on the relevant Practice Commentaries.

The Practice Commentary to Sec. 6.01, cited by the majority, makes no reference to accident. On the other hand, the Practice Commentary to V.T.C.A. Penal Code Sec. 19.01 observes:

“The prior law’s excusable homicide is a killing under this chapter by an actor who does not possess the requisite culpable mental state, e. g., an accidental killing.”

In this respect, the Practice Commentary’s observation on accidental killing is not unlike the statutory distinction under prior' law of Art. 1233, V.A.P.C. (1925), which provided:

“The want of proper care and caution distinguishes this offense [negligent homicide of the first degree] from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances.”

Both state that accidental killing is characterized by the absence of the lowest culpable mental state affixed to a criminal homicide. It is the absence of the requisite culpable mental state, not the absence of a voluntary act, that distinguishes excusable homicide from culpable homicide.

For the reasons stated, I dissent.

ONION, P. J., joins in this dissent.

      . Section 6.03 in its entirety is as follows:
      “§ 6.03. Definitions of Culpable Mental States
      “(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
      “(b) A person acts knowingly, or with knowledge, -with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
      “(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.”

      . To the extent that it perpetuates the former distinction between negligent and accidental homicide, Fazzino v. State, 531 S.W.2d 818, 820 (Tex.Cr.App. 1976) is overruled. However, we observe that the same result would have been reached in that case under the rationale enunciated today.

      . Although I dissent to the majority’s reasons by which the Stiles test is rejected, I concur in their conclusion that the “magic formula” of the Stiles test is not viable under the new Penal Code.
      The language of Stiles at issue reads:
      “The difference between accidental homicide and negligent homicide is whether the act resulting in death was intentionally or unintentionally done. The focus is on the accused’s act, not on the result of his act. Accidental homicide is the result of an unintentional act while negligent homicide may only result from an intentional act.”
      From the enactment of this State’s first Penal Code in 1856 until the enactment of our most recent Penal Code in 1973, the statutes governing accidental homicide and negligent homicide remained virtually unchanged. The statutory source of accidental homicide appeared in Art. 575, Texas Penal Code (1856) and later in Art. 1228, V.A.P.C. (1925), which defined excusable homicide as follows:

        “Homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the act of another who is in the prosecution of a lawful object by lawful means.”
      Negligent homicide was governed by Arts. 577-592, T.P.C. (1856), and later by Arts. 1230-1243, V.A.P.C. (1925). Regarding the distinction between excusable homicide and negligent homicide of the first degree, Art. 581, T.P.C. (1856) and Art. 1233, V.A.P.C. (1925), each provided:
      “The want of proper care and caution distinguishes this offense [negligent homicide of the first degree] from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances.”
      At least as early as 1915, in the case of Egbert v. State, 76 Tex.Cr.R. 663, 176 S.W. 560, and later in Harris v. State, 150 Tex.Cr.R. 38, 198 S.W.2d 264, it was stated, as in Stiies, that negligent homicide and accidental homicide differed according to whether the act that caused death was done intentionally or unintentionally. The basis for this distinction in the case law, however, is not to be found expressly stated in the statutes. It appears instead to have been the result of applying the law (as stated in the last above quoted article) to the facts in those cases where the issue of proper care and caution was reducible to terms of the act resulting in death being identifiable as either intentional or unintentional, as, for example, the discharge of a firearm. See, e. g., Groszoehmigen v. State, 57 Tex.Cr.R. 241, 121 S.W. 1113; Biggerstaff v. State, 59 Tex.Cr.R. 575, 129 S.W. 840; McPeak v. State, 80 Tex. Cr.R. 50, 187 S.W. 754, at 756, and at 758 (concurring opinion). Such reducibility would be present in those fact situations where intentional commission of the act would exhibit at the least a “want of proper care and caution . . . such as a man of ordinary prudence would use under like circumstances” and where the other acts done, in conjunction with the unintentional commission of the act so disputed as to intent, would not exhibit a want of such care and caution. But in cases where the issue of proper care and caution is not thusly reducible to terms of the death-causing act being intentional or unintentional, negligent homicide and excusable homicide were nevertheless distinguishable under the terms of Art. 1233, supra.
      In Bertrong v. State, 2 Tex.App. 160, the Court of Appeals approved the following charge on accidental homicide even though the firearm was intentionally discharged:

      “If the jury believe from the evidence that the defendant, by accident, shot and killed the deceased, Rogers, taking him for wild game, you will find the defendant not guilty. But, before you can acquit the defendant on this ground, you must also believe from the evidence that the defendant, before and at the time of the alleged shooting, exercised the same degree of care and caution that a man of ordinary prudence would have done under the same circumstances.”
      In Vick v. State, 71 Tex.Cr.R. 50, 159 S.W. 50, the following charge on accident given by the trial court was characterized on appeal as “a full, fair, and apt charge,” even though the fírearm was intentionally discharged. The charge read:
      “You are further charged that no act done by accident is an offense except where there has been a degree of carelessness or negligence which the law regards as criminal, and homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the acts of another who is in the prosecution of a lawful object by lawful means; and, as heretofore instructed, you are charged that the defendant at the time of the alleged killing had the legal right, with such care and caution as a man of ordinary prudence would exercise under the same or similar circumstances, to fire off his gun for the purpose of frightening the deceased or alarming him to cause him to leave his premises, if he was hunting thereon, or was on there without the defendant’s permission, and if you believe from the evidence that on the date of the killing, if the defendant, not knowing the deceased was in the thicket on his premises, shot in that direction for the purpose of alarming the witness Hors-field to make him leave said premises, or if you believe that the defendant knew the deceased was in said thicket, but fired off his gun to alarm him and make him leave said premises, using at the time such care and caution as a man of ordinary prudence would use under like circumstances, then you will acquit him.”
      See also the charges approved in Morris v. State, 35 Tex.Cr.R. 313, 33 S.W. 539, and Manley v. State, 69 Tex.Cr.R. 502, 154 S.W. 1008. Thus, on a proper set of facts, even the intentional discharge of a firearm resulting in death may be accidental and therefore excusable homicide. These cases, considered in light of the controlling statutes on excusable homicide and negligent homicide, demonstrate that the intentional act-unintentional act distinction of Egbert, Harris, and Stiles, all supra, is not a magic formula. Indeed, in Harris v. State, supra, it was implicitly recognized that no ironclad rule was being enshrined, for it was there stated:
      “So then, in a broad sense, a distinguishing element between negligent homicide and accidental killing lies in the fact that, in the first, the act which causes death must be intentionally done, while in the other, the act which causes the death was unintentional.” (Emphasis added.) 198 S.W.2d at 266.
      From the statutes and cases discussed here, I am compelled to the conclusion that the difference between negligent homicide and accidental homicide under the statutes in force prior to January 1, 1974, never has been precisely identified in all cases with the intentional-unintentional distinction. The latter distinction, instead, constituted a test applicable in certain cases only.
      In contrast to the existence of statutory provisions in the prior law that expressly addressed accidental homicide and distinguished it from negligent homicide, the new Penal Code contains no such provisions. V.T.C.A. Penal Code Sec. 19.01(a) provides:
      “A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.”
      Sections 19.02-19.05 and 19.07 define the five criminal homicide offenses enumerated in Section 19.01(b), to-wit: murder, capital murder, voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide, respectively. Excusable (including accidental) homicide under prior law is no longer expressly addressed by statute. The Practice Commentary to Sec. 19.01 observes:
      “Homicide under prior law was criminal or noncriminal. Homicide was criminal unless excusable or justifiable. .
      “This chapter defines only criminal homicide. The prior law’s excusable homicide is a killing under this chapter by an actor who does not possess the requisite culpable mental state, e. g. accidental killing.”
      It would be my opinion that accidental or excusable homicide would be distinguishable from criminally negligent homicide under the new Penal Code by the absence of the culpable mental state required to show a criminal homicide, but in view of my other ground for dissent that would require reversal of this conviction, further elaboration upon this point will be reserved for another day.


source: Caselaw Access Project

author: ONION, Presiding Judge. ROBERTS, Judge

license: Public Domain

text:
    James LIVINGSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 52139.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Bob Hillin, Dallas, on appeal only, for appellant.
    Tom O’Connell, Dist. Atty., Howard Shapiro and Barry Elliott, Asst. Dist. Attys., McKinney, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of capital murder, wherein the punishment was assessed at death. See V.T.C.A., Penal Code, Sec. 19.03, and Article 37.071, Vernon’s Ann.C.C.P.

The case was tried in Dallas County following a change of venue from Collin County. After trial and entry of judgment, the cause was transferred back to Collin County, without objection, for the purpose of appeal, it being noted that the trial judge, court reporters, attorneys for both parties, witnesses were all residents of Collin County and the grounds upon which the original change of venue had been granted had been terminated.

Initially appellant contends the court erred in overruling his motions to quash the indictment. In a single ground of error appellant lists thirteen reasons why the indictment is defective. Clearly the ground of error is multifarious and not in compliance with Article 40.09, Vernon’s Ann.C.C.P. See Rodriquez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975); Campbell v. State, 525 S.W.2d 4 (Tex.Cr.App.1975); Abercrombie v. State, 528 S.W.2d 578 (Tex. Cr.App.1975); Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974). Nevertheless, we shall consider the same. See Article 40.09, Sec. 13, Vernon’s Ann.C.C.P.

The indictment, omitting the formal parts, reads as follows:

“ . . . that one Excell White and James Livingston and Gary Dale Livingston, acting together on or about the 11th day of May in the year of our Lord One Thousand Nine Hundred and Seventy-four, and anterior to the presentment of this indictment, in the County of Collin and State of Texas, did then and there intentionally and knowingly => cause the death of Billy Glen St. John, by shooting him with a gun, and the said Excell White and James Livingston and Gary Dale Livingston, acting together, did then and there intentionally cause the death of the said Billy Glen St. John, and in the course of committing robbery, to-wit: Excell White and James Livingston and Gary Dale Livingston, acting together did then and there while in the course of committing theft and with intent to obtain property of Billy Glen St. John, to-wit: A wallet, without the effective consent of the said Billy Glen St. John and with intent to deprive the said Billy Glen St. John of said property, did then and there intentionally and knowingly cause bodily injury to the said Billy Glen St. John by shooting him with a gun. . . ”

This is the same indictment as in Excell White v. State, 543 S.W.2d 104 (Tex.Cr. App.1976), except that the name of the victim is different. The victim there was alleged as Preston Broyles. In White the court ,wrote:

“Although not grammatically correct, we hold that the indictment is sufficient. If the comma and the word ‘and’ between the words ‘cause the death of the said Preston Broyles’ and ‘in the course of committing robbery’ .were omitted, that portion of the indictment would read: ‘cause the death of the said Preston Broyles in the course of committing robbery.’ The latter phrase would be more correct, but we do not find that the appellant was misled or that he did not have fair notice of the offense with which he was charged. This ground of error is overruled.”

The same can be said of the instant indictment.

Both of appellant’s motions to dismiss the indictment were overruled, and it does not appear that appellant offered any arguments to the trial court in support of the general assertions in the written motions. On appeal, thirteen specific complaints are directed to the indictment. Most of these were never called to the trial court’s attention, and having failed to object on these grounds during trial, he is precluded from raising them for the first time on appeal, Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975), unless such contentions are cognizable under Article 27.08, Vernon’s Ann.C.C.P., to-wit: that the indictment failed to allege the constituent elements of the offense. See Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). Unless the complaints (not presented to the trial court) fall within the exception, nothing is presented for review. As to those complaints presented to the trial court, e. g., (1) indictment, vague, uncertain, misleading, not apprising the appellant of which offense he is charged; (2) does not state offense; (3) charges more than one offense, etc., we conclude that what we said in White v. State, supra, is controlling, and no error-is presented. And we do not find the other contentions fall within the announced exception calling for review.

Still further, in a separate ground of error appellant contends the failure of this capital murder indictment to allege ownership of property taken in the robbery renders the indictment fundamentally defective. Reliance is had upon Lucero v. State, 502 S.E.2d 128 (Tex.Cr.App.1973), dealing with a robbery indictment under the former Penal Code. In Watson v. State, 532 S.E.2d 619 (Tex.Cr.App.1976), it was held that failure to allege ownership of • property taken in a robbery indictment drafted under the present Penal Code does not render the indictment defective. See also Reese v. State, 531 S.W.2d 638 (Tex.Cr. App.1976); Brown v. State, 535 S.W.2d 640 (Tex.Cr.App.1976). Since it is not necessary to allege ownership in a robbery indictment, we reject the contention that such ownership of property taken must be alleged in a capital murder indictment which alleges the murder occurred during the course of a robbery. See Y.T.C.A., Penal Code, Sec. 19.03(a)(2). Further, such capital murder may occur before the complétion of the robbery and property may not even be taken. See V.T.C.A., Penal Code, Secs. 29.01 and 29.02. Still further, in Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976), we held that a capital murder indictment is not fatally defective because the elements of robbery are not set out in the indictment charging murder during the commission or attempted commission of robbery. Under the new Penal Code, an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense. See Smith v. State, supra; Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975); Watts v. State, 516 S.W.2d 414 (Tex.Cr.App.1974).

Appellant also advances the contention that the trial court erroneously excused twenty-one prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Hovila v. State, 532 S.W.2d 293 (Tex. Cr.App.1975), we held that the holding of Witherspoon was still alive and well in light of the new statutory scheme providing for the imposition of the death penalty, the adoption of which followed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

We have carefully examined the voir dire examination of the twenty-one prospective jurors listed by appellant and do not find that all were excused for their opposition to the death penalty. One woman, for example, was excused because she would require a greater burden of proof upon the State than “beyond a reasonable doubt.” Of those who were excused for death penalty opposition, we find that the test of Witherspoon was carefully met in each instance. No error is reflected.

The appellant also challenges the sufficiency of the evidence to sustain the conviction. The record reflects that the deceased, Billy Glen St. John, left his home near McKinney for work in Dallas early on May 11, 1974. His wallet contained $15.00, and, according to his wife, he was driving a red pickup truck. Gary Lyn Coker also worked in Dallas. About 6:45 a. m. on the same date, John Rogers was driving east on Hwy. 380 in Collin County and observed a light colored automobile, facing east, on the outside of the gas pumps at the Hilltop Grocery Store. He also saw a red pickup truck parked under the canopy, facing west, with an oil can on its hood. Rogers saw a man with a shoulder weapon get out of the passenger side of the light colored automobile and move to the back of the automobile where the proprietor of the store stood.

Leonard Davis and his wife left their home about 6:45 a. m. in separate automobiles for the purpose of getting gasoline at the store in question. On his way he observed an old white car travelling east on the highway. When he arrived at the store, he heard something and went into the store where he smelled gunpowder. Davis observed the proprietor, Preston Broyles, lying face down to his right. He saw another body (later shown to be Coker) lying by the meat counter. A third victim (later shown to be the deceased) raised upon his elbows and made a statement to Davis. Davis instructed his wife to make a telephone call at the nearest house and he left.

Police and ambulance attendants arrived at the store, shown to be three miles east of McKinney, and found Coker and Broyles dead. The deceased St. John was still alive and was carried to the Collin Memorial Hospital, where he died during emergency treatment for four gunshot wounds resulting in injury to the liver, kidneys, bowels, stomach and pancreas. Dr. Vincent DiMair, who performed the autopsy, expressed the opinion that St. John was shot while he was lying face down on the floor.

Chief Deputy Sheriff Gerald Kunkle testified that upon receiving a call he went to the Hilltop Grocery Store and found the cash register open. It contained only coins, no currency. He found ten .30 caliber hulls in the store. District Attorney O’Connell later found two more.

Deputy Sheriff Breakfield received a call on May 12, 1974, from a Cecil Murphy and met Murphy on the side of the road one or one and a half miles from the Hilltop Store where Murphy had found a wallet bearing the deceased’s identification. The wallet was identified by the deceased’s wife.

Deputy Kunkle related that on May 14, 1974, he received a telephone call from the sheriff’s office in Cleveland, Mississippi. In company with Texas Ranger Howard Alford he then went to Cleveland, where he met and talked to Excell White, who was in custody, and was given a .22 caliber Luger pistol by the sheriff’s office there. The officers received custody of White and returned to Waco, where they then recovered a .30 caliber rifle on the banks of the Brazos River. Appellant, who was in custody in Waco, gave Kunkle a written statement on May 16, 1974. Kunkle testified that the statement was voluntarily signed by the appellant after he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, Vernon’s Ann.C.C.P.

The State introduced before the jury the following portion of the statement which reads:

“ ‘On Saturday, May 11, 1974, about 7:00 a. m., me and Excel White and my brother, Gary Livingston, went to McKinney, Texas, in a 1966 white Pontiac, which belonged to Excel White. We went a little ways out of McKinney to a grocery store and pulled in the driveway, got out of the car, and Excel White went into the store.
“I went into the store and looked around and then hollered for White to come on. He came out with some billfolds in his hand, and we jumped in the car and left. We went toward Dallas, and then on to Waco. I went home after we split the money. I got $65.00 in U.S. currency, which came out of the store.
“When we went into the store, I had a .22 caliber pistol.’ ”

The defense then offered the following portion of the statement:

“ ‘The next thing I heard was some shooting. I went into the store and looked around, and then I hollered for White to come on. But I did not shoot anybody.’ ”

Allan Jones, firearms examiner for the Dallas County Criminal Investigation Laboratory, identified a .30 caliber bullet fragment taken from the body of the deceased as coming from a .30 caliber weapon, most likely a “Plainfield or Universal Arms,” a commercial model of a military service carbine.

Fred Rymer, Supervisor, Ballistics Section, Scientific Criminal Lab, Texas Department of Public Safety, testified the 12 spent hulls recovered at the scene of the crime were fired from a .30 caliber carbine with the same rifling characteristics as the test bullets fired from the weapon recovered on the Brazos River banks, which he described as a Plainfield M-l, a .30 caliber carbine.

Appellant contends the State proved with detail the death of the deceased and two other men, but failed to connect him with the murder charged as the written statement manifestly falls short of connecting him with the murder of the deceased.

V.T.C.A., Penal Code, Section 7.01, reads as follows:

“(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
“(b) Each party to an offense may be charged with commission of the offense. “(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

Y.T.C.A., Penal Codes, Section 7.02, reads as follows:

“(a) A person is criminally responsible for an offense committed by the conduct of another if:
“(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
“(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
“(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to maké a reasonable effort to prevent commission of the offense.
“(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

In Smith v. State, supra, a capital murder conviction under Article 1257, Vernon’s Ann.P.C. (immediate forerunner of V.T. C.A., Penal Code, Sec. 19.03), and Article 37.071, Vernon’s Ann.C.C.P., it was held that a defendant could be convicted of murder despite the fact it was the co-defendant who killed the deceased during the course of the robbery in light of the law of principals then in effect. See also Thompson v. State, 514 S.W.2d 275 (Tex.Cr.App.1974).

We do not construe the foregoing Sections 7.01 and 7.02 of the new Penal Code to call for a different result, nor do we understand appellant to so contend. It appears to be the thrust of his contention, presented without citation of authority, that all of the evidence, including his written statement, falls short of connecting him with the murder of Billy Glen St. John or anyone else. It is true that a confession which is not an unequivocal admission of the commission of the crime charged does not of itself remove the ease from the application of the law of circumstantial evidence. Hielseher v. State, 511 S.W.2d 305, 308 (Tex.Cr.App.1974). Appellant contends the confession in the instant case falls in this category since it does not directly identify the place where the incident occurred or the identity of the deceased nor establish even that anyone was shot. The confession does show that appellant was with his brother and Excell White in McKinney on May 11, 1974, about 7 a. m. in a 1966 white Pontiac and they went out of McKinney “a little ways” to a grocery store and White went in. The portion introduced by the appellant showed he heard shooting and went inside and looked around. Other parts introduced by the State showed that at the time appellant had a .22 caliber pistol and that when White came out he had billfolds and that after they got to Waco they split the money.

While no witness placed the appellant at the scene, the record shows the Hilltop Grocery was three miles east of McKinney, that the witness Rogers saw a light colored car at the store about 6:45 a. m. and a man with a shoulder weapon. The witness Davis saw an old white car going east as he approached the store near 7 a. m. on the day in question before discovering the bodies. The testimony about the arrest of White and that of the ballistics experts need not be repeated. Viewing all the evidence in the light most favorable to the jury’s verdict, we conclude it is sufficient to sustain the conviction.

Appellant also asserts the trial court erred in permitting two court-appointed psychiatrists to testify, over objection, as to matters related to them during psychiatric examinations. He contends the same was in violation of the Fifth and Sixth Amendments, United States Constitution, and Article 46.02, Sec. 2(f)(4), Vernon’s Ann.C.C.P. (now Article 46.02, Sec. 3(f), Vernon’s Ann. C.C.P.), and Article 37.071, Vernon’s Ann.C. C.P.

Article 46.02, supra, provides for the appointment of experts to examine an accused as to his competency to stand trial, etc. It provided in Section 2(f)(4), in effect at the time of appellant’s trial, that:

“No statement made by the defendant during examination into his competency shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding no matter under what circumstances such examination takes place.” (Emphasis Supplied)

In Ballard v. State, 519 S.W.2d 426 (Tex. Cr.App.1975), a psychiatrist who had examined the defendant was permitted, over objection, to testify at the guilt stage of the trial to statements made by the defendant during the examination which were inconsistent with the defendant’s testimony. It was held that such testimony by the psychiatrist was in violation of the express provisions of Article 46.02, Sec. 2(f)(4), supra. Cf. Smith v. State, 502 S.W.2d 814 (Tex.Cr. App.1973).

In the instant case the witnesses Drs. Holbrook and Grigson were appointed by court, upon request by appellant’s earlier appointed counsel, to examine the appellant as to his competency to stand trial. They did not testify at the guilt stage of the trial. They were not called until the penalty stage of the trial or the “separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment.” See Article 37.071, supra. The issue of guilt had thus been determined by this time. Nevertheless, the trial judge, upon objection, forbade them to testify as to any statements made by the appellant during the examinations.

Both doctors were permitted to testify that the appellant was a sociopathic personality, an anti-social type, who had no regard for another person’s life or property, no remorse, that his condition would not improve and he would remain a continuing threat to society. Article 37.071, supra, which provides for “a separate sentencing proceeding,” provides in part:

“In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.

Such provision gives the court wide discretion in the evidence that may be offered. Clearly the evidence presented was pertinent to the so-called second special issue under Article 37.071, supra, “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society . . . .”

We conclude that the court did not err in permitting the testimony of the doctors. There was no violation of Articles 46.02 or 37.071, supra. And this is true even though it was established by a bill of exception (out of the jury’s presence), that Dr. Grigson based his opinion in part on statements made by the appellant during the examinations.

Appellant’s contention that the absence of counsel during the examinations violated the Sixth Amendment and that his privilege against self-incrimination protected by the Fifth Amendment was breached has been answered contrary to his contention in Stultz v. State, 500 S.W.2d 853 (Tex. Cr.App.1973). See also Patterson v. State, 509 S.W.2d 857 (Tex.Cr.App.1974).

In United States v. Williams, 456 F.2d 217 (5th Cir. 1972), which was cited with approval in Stultz, the Court wrote:

“Williams was not deprived of his privilege against self incrimination when statements made by him to the psychiatrists in the absence of counsel formed part of the basis for a momentary, unfavorable characterization of Williams’s personality.” See and cf. United States v. Cohen, 530 F.2d 43 (5th Cir. 1976).

Next appellant urges that the imposition of death as punishment violates the Eighth and Fourteenth Amendments to the United States Constitution. This court has never in its history held that the death penalty constitutes cruel and unusual punishment under such constitutional provisions or under the provisions of the Texas Constitution (Article I, Sec. 13). See also Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975).

In Gregg v. Georgia,-U.S. -, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court rejected the same contention. See also Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida,-U.S.-, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

In a series of grounds of error appellant contends the death penalty is unconstitutional in this State because of the discretion given the prosecutor, grand jury, trial jury, Governor, etc.

In Jurek v. Texas, supra, the United States Supreme Court wrote:

“The petitioner first asserts that arbitrariness still pervades the entire criminal justice system of Texas—from the prosecutor’s decision whether to charge a capital offense in the first place and then whether to engage in plea bargaining, through the jury’s consideration of lesser included offenses, to the Governor’s ultimate power to commute death sentences. This contention fundamentally misinterprets the Furman decision, and we reject it for the reasons set out in our opinion today in Gregg v. Georgia, ante,- U.S. pp. -, -, 96 S.Ct. p. 2937.”

For the same reasons we reject appellant’s contentions.

We also reject that contention that Article 37.071(b)(2) is so vague and ambiguous so as to violate due process of law for the same reasons set out in our decision in Jurek v. State, supra. See also Jurek v. Texas, supra.

The judgment is affirmed.

ROBERTS, Judge

(dissenting).

I

In his original brief filed in the trial court, appellant did not directly raise the issue of the sufficiency of the evidence to support the jury’s affirmative answer to the second special issue submitted at the punishment stage of the trial. However, in a supplemental brief filed in this Court, the appellant has raised this issue through several new grounds of error which allege that because of the lack of such evidence he was denied the effective assistance of counsel.

I would consider this previously-unassigned error in the interest of justice. Art. 40.09(13), Vernon’s Ann.C.C.P.; Purcell v. State, 167 Tex.Cr.R. 565, 580-584, 322 S.W.2d 268, 276-279 (1959) (opinions of Morrison, P. J., and Davidson, J.). In doing so, I would observe that this Court has the duty in capital cases to “provid[e] prompt judicial review of the jury’s decision” in order “to promote the evenhanded, rational, and consistent imposition of death sentences under law.” Jurek v. Texas, 96 S.Ct. 2950, 2958 (1976) (opinion of Stewart, J.). See also Gregg v. Georgia, 96 S.Ct. 2909, 2939-2940 (1976) (opinion of Stewart, J.), and Proffitt v. Florida, 96 S.Ct. 2960, 2966-2967, 2969-2970 (1976) (opinion of Stewart, J.).

II

In the present case, the evidence supporting the appellant’s guilt was circumstantial. See Casey v. State, Tex.Cr.App., 523 S.W.2d 658. Moreover, the evidence conclusively showed that the appellant did not participate in the actual killings. Likewise, the evidence does not reveal any predisposition on the part of appellant to kill anyone. I would hold that this evidence is insufficient, standing alone, to support an affirmative answer to the second special issue. See Swan v. State, 322 So.2d 485 (Fla.1975); Taylor v. State, 294 So.2d 648 (Fla.1974).

Ill

The only other evidence supporting the jury’s answer to this special issue is the psychiatric testimony presented at the punishment stage of the trial. Therefore, I turn next to an examination of the probative value of this testimony.

In Hopkins v. State, 480 S.W.2d 212 (Tex. Cr.App.1972), the defendant contended that “the trial court erred in not permitting a defense witness, Dr. Yero, who is a psychiatrist, to testify as to his opinion regarding the credibility of the State’s principal witness, Marquez.” Hopkins v. State, supra, at 217. We overruled this contention and held that psychiatric testimony could not be used for impeachment since “the benefit to be gained from such testimony is not great enough to offset the disadvantages ...” Id., at 220.

We then elaborated on this holding with the following language:

“The state of psychiatry is such that it is more an art than a science. There exists a great deal of divergence of opinion among eminently qualified and learned men of the profession. Also, being of the nature that it is, psychiatric opinion is not only often divergent, but is often inexact. In view of this nature, the benefit to be gained by the jury would quite probably be slight. Often the jury would be subjected to conflicting witnesses and inexact opinions, the value of which would be minimal in enabling the jury to decide the issue of credibility. As is so often the case in those instances where psychiatric testimony is now permitted, the jury will quite likely be wit ness to a ‘battle of experts’ who are called, in reality, not for the general knowledge which they can bestow upon the court, but for the partisan benefit which the parties who called the witness hope to receive.” (Emphasis added). Id., at 221.

Pour present members of this Court joined in this language, yet now a majority of the Court is convinced that such inexact and ethereal testimony is sufficient to support a jury’s finding that the extreme penalty should be imposed. I cannot agree. I would hold that this evidence is not enough — either standing alone or in conjunction with the evidence produced earlier in the trial — to support an affirmative answer to the second special issue. Swan v. State, supra; Taylor v. State, supra.

This Court should fulfill its obligation to review the validity of death sentences imposed in this State. Jurek v. Texas, supra; Gregg v. Georgia, supra; Proffitt v. Florida, supra.

In Ex Parte Derese, 540 S.W.2d 332 (Tex. Cr.App.1976); this Court considered the sufficiency of the evidence to support an affirmative answer to the second special issue in a case denying bail to a defendant charged with capital murder. We held that the evidence was “insufficient to support such finding.” Ex Parte Derese, supra, at 334. We should do no less in this case, as is our duty under Jurek, Gregg, and Proffitt.

The judgment should be reversed.

      . This is a companion case to Excell White v. State, 543 S.W.2d 104 (Tex.Cr.App.1976).

      . In Witherspoon the Supreme Court of the United States wrote:
      “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.”
      The court further wrote:
      “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial may reveal, it simply cannot be assumed that that is his position.”

      . Article 46.02, supra, was amended and the related provision is now found in Section 3(f) as follows:
      “No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.” Acts 1975, 64th Leg., ch. 415, p. 1095, effective June 19, 1975.

      . Actually, the proceedings are the penalty or punishment stage of a capital murder trial, the formal sentencing comes later. As noted in the concurring opinion on State’s motion for rehearing in Hovila v. State, 532 S.W.2d 293, 297 (Tex.Cr.App.1976):

        “A study of Article 37.071, supra, reveals that the drafting of such statute started with out-of-state statutes where the words ‘sentence’ or ‘sentencing’ were not used in the same sense as a formal sentence defined in Article 42.02, supra, but were used as equivalent to punishment.”

      . Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . This special issue, framed in the language of Art. 37.071(b)(2), Vernon’s Ann.C.C.P., was as follows:
      “Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, James Livingston, would commit criminal acts of violence that would constitute a continuing threat to society?”

      . Although I agree that such evidence is clearly admissible under Art. 37.071(a), V.A.C.C.P., I cannot agree that its probative value is equally clear.