text:
    LAMBDIN FUNERAL SERVICE, INC., and Wayne Lambdin, Sr., Appellants, v. Charles N. GRIFFITH, Appellee.
    Supreme Court of Tennessee.
    Jan. 3, 1978.
    Mark H. Collier, Waverly, for appellants.
    John D. Whalley, Barksdale, Whalley, Gilbert & Frank, Nashville, for appellee.
   OPINION

COOPER, Justice.

Appellants, Lambdin Funeral Service, Inc. and Wayne Lambdin, Sr., have appealed from an order of the Circuit Court of Humphreys County dismissing their action against Charles N. Griffith “for failure to state a claim upon which relief can be granted.”

In the complaint, appellants charge ap-pellee with slander, libel, conspiracy to libel and defame appellants, and invasion of appellants’ right of privacy. The charges are based on pleadings filed and statements made by appellee, in his capacity as attorney for Lee Reynolds, Alice Reynolds, Lloyd Hall, and Clara Mae Fox,

(1) in filing a tort action against appellants in the Circuit Court of Humphreys County, and

(2)in filing charges against appellants with the Tennessee Board of Funeral Directors and Embalmers, and in participating in the hearing held by the Board on the charges. Both the tort action and the proceedings before the Board were predicated on the same charges of misconduct by appellants in the occupation for which they had been licensed by the Board.

It is generally recognized that statements made in the course of a judicial proceeding that are relevant and pertinent to the issues involved are absolutely privileged and cannot be the predicate for liability in an action for libel, slander, or invasion of privacy. Jones v. Trice, 210 Tenn. 535, 360 S.W.2d 48 (1962); Froehlich v. Adair, 213 Kan. 357, 516 P.2d 993 (1973); Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P.2d 1063 (1972); Hagan v. Fairfield, 238 Cal.App.2d 197, 47 Cal.Rptr. 600 (1965); 62 Am.Jur.2d Privacy § 14; 53 C.J.S. Libel & Slander § 104. This absolute privilege holds true even in those situations where the statements are made maliciously and corruptly. Hayslip v. Wellford, 195 Tenn. 621, 263 S.W.2d 136, 42 A.L.R.2d 820 (1953). It also holds true in administrative proceedings before boards or commissions that are clothed with the authority to revoke a license “after a hearing for good cause shown,” as is the Tennessee Board of Funeral Directors and Embalmers. Independent Life Insurance Company v. Rodgers, 165 Tenn. 447, 55 S.W.2d 767 (1932). See also, Prosser, Law of Torts, 3d Ed. 1964, wherein it is noted at page 799 that:

The “judicial proceeding” to which the immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial junction, ex parte, or otherwise, and whether the hearing is public or not. It includes for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial, or “quasi-judicial.” in character. Thus the ordinary administrative proceeding to revoke a license is held to lie within the privilege, (emphasis supplied).

The underlying basis for the grant of the privilege is the public’s interest in and need for a judicial process free from the fear of a suit for damages for defamation or invasion of privacy based on statements made in the course of a judicial or quasi-judicial proceeding. Jones v. Trice, 210 Tenn. 535, 360 S.W.2d 48 (1962); Crockett v. McClanahan, 109 Tenn. 517, 530, 72 S.W. 950, 953, 61 L.R.A. 914 (1903).

In the instant case, each tort charged in the complaint is predicated upon the publication by the defendant of alleged acts of misconduct by the plaintiff. The publications relied upon were either in the circuit court action or in the proceedings before the Tennessee Board of Funeral Directors and Embalmers. There is no contention that the statements were not pertinent to issues involved. Consequently, the pleadings and statements were privileged communications, and as such cannot be the predicate for liability in the action for the torts set forth in the complaint.

The order of the trial judge dismissing the action “for failure to state a claim upon which relief can be granted” is affirmed. Costs of the appeal are adjudged against appellants and their surety.

HENRY, C. J., and FONES, BROCK, and HARBISON, JJ., concur.

      . According to the complaint, the board hearing resulted in permanent revocation of appellants’ licenses. On review of the Board’s decision, the chancellor modified the judgment to provide for suspension of the licenses for a six month period rather than permanent revocation of the licenses.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    P & L CONSTRUCTION COMPANY, INC., and the Auto-Owners Mutual Insurance Company, Appellants, v. Billy Louis LANKFORD, Appellee.
    Supreme Court of Tennessee.
    Jan. 3, 1978.
    Trabue, Sturdivant & DeWitt, Nashville, for appellants.
    Alexander, Hartzog, Harris & Silva, Franklin, for appellee.
   OPINION

COOPER, Justice.

P & L Construction Company and the Auto-Owners Insurance Company have appealed a decision by the Circuit Court of Williamson County awarding benefits under the Workmen’s Compensation Act to Billy Lankford, an employee of the construction company. The appellants raise two questions: First, they assert that there is insufficient medical evidence to establish that the employee’s injury arose out of and in the course of Lankford’s employment. Secondly, they contend that, in the event that Lankford’s claim is upheld, he should receive the minimum disability payments under T.C.A. § 50-1007, in that, during the year preceding his injury, he received no wages.

P & L Construction Company is a closely held corporation, with Billy Lankford, Gene Perdue, and their respective wives each holding a 25% interest. Lankford and Per-due are employed by the company full-time as foremen and construction workers. Pursuant to an agreement made when the company was established, neither man has taken any direct compensation for his labor, and none of the profits of the company have been distributed to the owners. On September 13, 1975, while in the course of his work for the company, Lankford suffered a ruptured disc when he sneezed. He brought this action to recover medical expenses and disability benefits under the Workmen’s Compensation Act. At trial, Lankford presented evidence that, on or about June 20, 1975, while he was working at one of the construction company’s job-sites, he had suffered a severe blow to his back when he was struck by the tailgate of a dump truck and that between that accident and the sneezing incident of September 13th he had been troubled by symptoms similar to those that resulted from the ruptured disc. Dr. Warren McPherson, the doctor who treated Lankford, testified that, in his opinion, the disc ruptured when Lank-ford sneezed. He further testified that it was possible that a sharp blow to the back, such as that suffered by Lankford in June, could have so weakened the ligaments surrounding the disc that it became susceptible to rupture by an act such as sneezing. The trial judge found that the injury to Lank-ford’s back was the result of being struck by the tailgate, and that the sneeze merely precipitated the rupture. He therefore awarded Lankford his medical expenses and disability benefits. He further held that Lankford’s average weekly wage, which is the criterion by which the amount of the disability payments payable under T.C.A. § 50-1007 is determined, should be based on one-half the net income of the corporation. If Lankford’s average weekly wage is computed in this manner, he is entitled to the maximum benefits under T.C.A. § 50-1007, and the trial judge so held.

The appellants insist that there is no material evidence to support the finding that Lankford’s injury arose out of and in the course of his employment, in that Dr. McPherson testified only that the rupture of the disc could have been caused by the June, 1975, accident.

In a workmen’s compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident “could be” the cause of the plaintiff’s injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury. American Insurance Company v. Ison, 538 S.W.2d 382 (Tenn.1976); Lynch v. LaRue, 198 Tenn. 101, 278 S.W.2d 85 (1955); 3 Larson, Workmen’s Compensation Law, § 80.32.

In the instant case, Dr. McPherson testified that Lankford’s ruptured disc could have been caused by the tailgate accident. Lankford and other witnesses testified to the circumstances surrounding that accident, and to Lankford’s subsequent symptoms. In particular, they testified that Lankford suffered from pain and weakness in his back after the tailgate accident, and that on one occasion he was stricken with intense pain in his lower back and partial paralysis in his left leg, which were the same symptoms that brought him to Dr. McPherson after the September 13th sneezing incident. In the light of this testimony, the trial judge found that the rupture of the disc, although precipitated by the sneezing incident, was the result of the tailgate accident that occurred on June 20th. As there is material evidence to support the trial judge’s determination, it is conclusive on appeal. Sadduth v. Williams, 517 S.W.2d 520 (Tenn.1974). The appellants do not question the trial judge’s implicit finding that the injury, if it was caused by the tailgate accident, arose out and was suffered in the course of Lankford’s employment. See 1 Larson, Workmen’s Compensation Law, § 13.11 at 3-283. Therefore, the trial judge’s holding that Lank-ford’s injury is compensable is affirmed.

The appellants next contend that, as the plaintiff received no wages from the company, he had no “earnings” within the meaning of T.C.A. § 50-902(c), and that it was error for the trial judge to award him benefits at the maximum rate provided by T.C.A. § 50-1007(a).

The earnings of an employee include anything received by him under the terms of his employment contract from which he realizes economic gain. 2 Larson, Workmen’s Compensation Law, § 60.12. In certain situations involving closely-held corporations, this may include the implicit increase in the stock held by an employee-shareholder that occurs when he foregoes any direct monetary compensation for his labors. Cf., Harvey Auto Supply, Inc., v. Industrial Commission, 25 Ariz.App. 274, 542 P.2d 1154 (1976), in which an employee-shareholder elected to take a portion of his wages in stock. However, contrary to the holding of the trial judge, the proportional share of the profits of a closely-held corporation creditable to such an employee-shareholder does not necessarily reflect his “earnings,” i. e. the implicit increase in the value of his holdings as the result of his labors, as opposed to that increase arising from his previous contributions of capital. See Clingan v. Fairchance Lumber Co., 166 Pa.Super. 331, 71 A.2d 839 (1950). A better measure of the employee’s earnings would be the compensation paid by the same company to another employee performing the same or similar duties. Cf., T.C.A. § 50-902(c). In the instant case, there is evidence that the company employed William Garvin as a heavy equipment operator at the wage of $4.25/hour. If this is taken as a reasonable estimate of the value of Lank-ford’s labor as a heavy equipment operator, which was his primary task, it is apparent that his weekly earnings, as defined above, were such as to entitle him to the maximum benefits payable under T.C.A. § 50-1007(a). Accordingly, we concur in the result reached by the trial judge.

The judgment of the trial judge is affirmed. The costs will be taxed to the appellants.

HENRY, C. J., BROCK, J., and DAUGH-TREY and McCANLESS, Special Judges, concur.


author: NEARN, Judge.

text:
    Sam M. ROBERTS and wife, Katie Roberts and Mitchell Pickard, Appellants, v. Glen CANTRELL et al., Appellees.
    Court of Appeals of Tennessee, Western Section.
    Sept. 15, 1977.
    Certiorari Denied by Supreme Court Dec. 5, 1977.

      William A. Largen, Dresden, for appellants.
    Allen J. Strawbridge, Jr., Martin, for ap-pellees.
   NEARN, Judge.

The original complaint by Sam M. Roberts et al. was one quia timet to remove a cloud on title. By the proof and amendments the case also took on the appearance of a boundary line dispute with charges and counter-charges of adverse possession. The Chancellor found both title and possession to be in the defendants, Cantrell. Plaintiffs have appealed.

The Assignments of Error can be narrowed to: (1) the evidence preponderates against the Chancellor’s findings and (2) the Chancellor erred in considering certain evidence.

The land in dispute consists of about 10 acres of timber land which is located at a corner where the land of plaintiffs’ and defendants’ touch.

We will first consider the evidentiary complaint of appellants.

During the course of the trial the defendants introduced into evidence a recorded deed dated January 21, 1908 executed by defendants’ predecessor in title, Pentycost, to the next predecessor in title, Burton, describing the boundary along a creek to be 140V2 poles in length and further reciting that “this being the line established by agreement between U. Pentycost & A. Roberts [plaintiffs’ predecessor in title] on December 27, 1907 . . . ” The 140½ pole call is the one now in dispute. Plaintiffs insist it is 100 poles in length and the mention of the agreement contained in the deed should not have been considered by the Chancellor because neither the agreement nor a copy of same was ever introduced into evidence. Reliance is placed upon the case of Wilcox v. Blackwell (1897) 99 Tenn. 352, 41 S.W. 1061, to support the rejection of consideration of the alleged agreement. In that case complainant filed his bill to enjoin waste and remove a cloud on title. Complainant sought to prove title by a deed which conveyed less than the full interest to complainant but recited that complainant had previously purchased the other interests through regular conveyances. The other “regular conveyances” were never adduced in proof. The Court held that the deed recital of other “regular conveyances” would not suffice as proof of title in the complainant of the outstanding interests.

We do not believe the Wilcox case, supra, is applicable. In this case we are not concerned with missing unconveyed incorporeal interests in the fee. We are concerned with basic real property that is, land and where it lies. In such matters statements of deceased persons concerning boundary locations are admissible. Particularly is it competent to establish the location of lines by declaration of former owners. Montgomery v. Lipscomb (1900) 105 Tenn. 144, 58 S.W. 306; Davis v. Jones (1859) 40 Tenn. (3 Head) 603. The deed in question was certainly admissible to show defendants’ chain of title and the declaration of the deceased former owner as to the location of a disputed boundary is admissible to show the location of the land.

The Assignment of Error is overruled.

The record reveals that since 1908 each deed in defendants’ chain of title has specifically described defendants’ land by metes and bounds and has used the now disputed 140½ pole call. It was not until 1959 that conveyances in plaintiffs’ chain of title began to use metes and bounds descriptions. Prior to that time plaintiffs’ deed contained a bounded description only, e. g., bounded on the north by the lands of A, on the south by the lands of B, on the east by the lands of C and on the west by the lands of D. The metes and bounds description used by plaintiffs in their original complaint came into existence in the year 1959 when a surveyor was hired to survey the land using plaintiffs’ old deeds and who admitted on cross-examination that he considered no other deeds of adjoining owners. The record indicates that plaintiff has had paper metes and bounds title to the disputed area only since 1959. However, paper title, absent possession is of no avail against another who has both paper title and possession. Tilghman v. Baird (1854) 34 Tenn. (2 Sneed) 196; Hebard v. Scott (1895) 95 Tenn. 467, 32 S.W. 390.

We concur with the Chancellor that the plaintiffs failed to carry the burden of showing perfect title and have failed to prove the elements of adverse possession of the ten acres sought. The remaining Assignments of Error are overruled.

The decree below is affirmed with costs adjudged against appellants and sureties.

Honorable W. E. Quick, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Presiding Judge C. S. Carney.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eighty-second year of our Statehood.

MATHERNE, J., and QUICK, Special Judge, concur.


author: STEAKLEY, Justice.

text:
    Opal Lee ALLEN, Relator, v. Joe Bailey HUMPHREYS, Judge, 44th Judicial District Court of Dallas County, Texas, Respondent.
    No. B-6672.
    Supreme Court of Texas.
    July 20, 1977.

      James C. Barber, Dallas, for relator.
    Thompson, Knight, Simmons & Bullion, David S. Kidder, and Timothy R. McCormick, Dallas, for respondent.
   STEAKLEY, Justice.

This is an original mandamus proceeding instituted by Opal Lee Allen, Relator, against Respondent, Honorable Joe Bailey Humphreys, Judge of the 44th Judicial District Court of Dallas, County, Texas. Relator seeks a writ of mandamus requiring Judge Humphreys to vacate his orders of January 3,1977, and February 8,1977. The January 3 order denied Relator’s Motion for Discovery Under Rule 167, a motion which sought the production of certain documents from Charter Oak Fire Insurance Company, the defendant in the trial court. The February 8 order overruled Relator’s Rule 215a motion to compel production, a motion necessitated by the refusal of Safeway Stores, Inc. and The Travelers Insurance Company to comply with subpoenas duces tecum issued in connection with notices of depositions upon written questions.

Mrs. Allen has filed a workmen’s compensation suit against Charter Oak Fire Insurance Company, the insurer of Safeway Stores, Inc. She alleged that she suffered from lung cancer and that the cause of her condition was her exposure, during the course and scope of her employment in the meat department of a Safeway store, to polyvinyl chloride particles released into the air when meat wrapping film was cut with a hot wire. Mrs. Allen alleged that as a result of her affliction she was totally and permanently disabled. In order to facilitate proof of her case, she sought discovery of numerous items from Safeway, from Charter Oak Fire Insurance Company, Safeway’s insurer, and from The Travelers Insurance Company, Charter Oak’s parent company. From each Mrs. Allen sought: (1) copies of any surveys or test reports, done by anyone, which reflected tests or surveys done in any grocery store to determine the amount or composition of particles released by burning of the plastic meat wrapping film used by Safeway; (2) all formal and informal complaints by private individuals or government agencies in the possession of the defendant or to which it had access claiming that persons had contracted cancer as a result of breathing fumes emitted from the cutting of plastic sheeting containing polyvinyl chloride, and all correspondence by which the defendant responded to the complaints; (3) all medical, laboratory, or other expert reports, not made in connection with the investigation or defense of the plaintiff’s claim, either directly written by the expert or summaries thereof, dealing with the possibility or probability that fumes released in the hot wire cutting of plastic sheeting containing polyvinyl chloride could or might cause cancer or any type of lung disease; (4) all correspondence, memoranda, safety bulletins, or any other communications between the defendant and any other person, not made by the defendant in connection with the investigation or defense of plaintiff’s claim, reflecting a decision by Safeway to abandon the use of hot wire cutting of plastic meat wrapping material, reflecting the possibility of a health hazard to persons breathing fumes from the hot wire cutting of such material, reflecting expert concern in the industry about such a hazard, reflecting any corrective measures that could or should have been taken by the employer or manufacturer to correct any health hazards posed by the hot wire cutting of plastic meat wrapping material, and reflecting any other relevant information concerning the hazard or potential hazard which caused Safeway to discontinue the use of the materials; (5) copies of any scientific studies, done by the defendant or in its possession and not made in connection with the investigation or defense of Mrs. Allen’s claim, reflecting any conclusions concerning the possible causal relationship between polyvinyl chloride or any chemical fumes emitted from the burning of plastic sheeting used for meat wrapping and cancer or any lung disease; and (6) copies of all reports from expert witnesses which the defendant intended to call during the trial.

Mrs. Allen sought production of the requested items from Charter Oak, the party defendant, under the relevant provisions of Rule 167. As to Safeway and The Travelers Insurance Company, Mrs. Allen filed notices to take depositions upon written questions. Pursuant to Rule 201, the notices were accompanied by subpoenas directing Safeway and Travelers to produce the identical documents requested from Charter Oak. Safeway and Travelers joined in a Motion to Quash the discovery but the motion was not acted upon. Nevertheless, Charter Oak refused to produce the requested items, and though the designated representatives of Safeway and Travelers appeared for purposes of being deposed, they refused to produce or answer questions regarding the documents sought by Mrs. Allen. Mrs. Allen then filed a motion under Rule 215a requesting the trial court to order Safeway and Travelers to produce the requested items. Additionally, she urged the trial court to rule on the original Motion for Discovery Under Rule 167. The trial court denied both motions, and it is from this action that she seeks relief by the writ of mandamus.

On behalf of Judge Humphreys, Charter Oak, Safeway, and Travelers initially argue the extraordinary writ of mandamus is not available to the Relator in this case. They assert that a writ of mandamus is improper to review an interlocutory discovery ruling of the trial court and that, furthermore, in the instant case Mrs. Allen has an adequate remedy via the normal appellate process. We have previously held that the writ of mandamus is proper in cases where a trial judge has abused his discretion in ordering the wholesale production of certain highly confidential information. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Maresca v. Marks, 362 S.W.2d 299 (Tex.1962). In a more recent case, Barker v. Dunham, 551 S.W.2d 41 (Tex.1977), we held a trial judge had abused his discretion in denying discovery of certain properly discoverable information. It was there asserted that the discovery motion in question was addressed to the discretion of the trial judge, and that his exercise of that discretion was not subject to supervision by the writ of mandamus. A unanimous court disagreed, stating “the writ of mandamus may issue in a discovery proceeding to correct a clear abuse of discretion by a trial judge.” Id. at 42. Thus, here, as in Barker, the question is whether such a clear abuse of discretion has been shown. We will first consider the trial court’s action in denying Mrs. Allen’s Motion for Discovery Under Rule 167, the motion directed at Charter Oak.

Rule 167 of the Texas Rules of Civil Procedure governs the discovery and production of documents and other tangible items. Generally, it permits the discovery from another party to the lawsuit of “any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action”. The party seeking discovery must show good cause, and the party from whom discovery is sought cannot be required to disclose privileged material. All traditional rules of testimonial privilege can be invoked to prevent discovery of items under Rule 167. Tex.R.Civ.P. 167, comment (1976); 2 R. McDonald, Texas Civil Practice § 10.03 (1970). However, the privilege most prominently asserted in the instant case is that delineated in the third paragraph of Rule 167, wherein it is provided that the right of discovery

shall not extend to other written statements of witnesses [i. e., written statements of testifying non-experts] or other written communications passing between agents or representatives or the employees of either party to the suit, or to other communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.

Simply stated, this privilege can be invoked where three factors coexist: (1) the material sought to be discovered is either (a) a written statement by a non-expert witness, (b) a written communication between agents, representatives, or employees of either party to the suit, or (c) written communications' between any party and his agents, representatives, or their employees; (2) the statement or communication is made subsequent to the occurrence or transaction upon which the suit is based; and (3) the statement or communication is made in connection with the prosecution, investigation, or defense of the particular suit or in connection with the investigation of the particular circumstances out of which it arose.

Certain other rules relating to discovery of tangible items and documents have been abstracted from the relevant Texas Rules of Civil Procedure and announced by this Court. For example, it is well-established that a party cannot require the disclosure “of the mental impressions and opinions of experts used solely for consultation and who will not be witnesses in the case”. Tex.R.Civ.P. 186a; Houdaille Industries, Inc. v. Cunningham, 502 S.W.2d 544 (Tex.1973). In the proviso of Rule 167, discussed in some detail above, the word “communications” has been construed to mean only written communications. Id. Photographs are not considered written communications unless they are part of a written report, and if they are contained in a report, they are subject to discovery only where the report itself is discoverable. Id. Most recently, in Barker v. Dunham, supra, this Court held that an officer and regular employee of a party, if he qualifies as an “expert,” is subject to the same rules regarding discovery as a specially employed expert. We also held that an expert’s reports, factual observations, and opinions are discoverable unless the party resisting discovery positively avers that the expert will be used solely for consultation and will not be called as a witness at the trial. It is with these and other governing principles in mind that we proceed to determine whether the trial court clearly abused its discretion in denying the discovery sought here.

In support of the trial court order denying discovery it is argued that the information sought to be discovered is relevant only on the issue of Safeway’s fault, and since fault is not an issue in a workmen’s compensation suit, it is asserted the items sought do not “constitute or contain” and are not “reasonably calculated to lead to the discovery of” evidence “material to any matter involved in the action.” Though undoubtedly relevant to the issue of Safeway’s fault, the items sought by Relator are also relevant to the issue of whether the conditions under which Mrs. Allen worked contributed to the cause of her affliction. Any test results, reports, surveys, and complaints by similarly affected individuals might reveal a causal relationship between the working conditions experienced by the Relator and the disease suffered by her, and if not themselves admissible, such documents reasonably might be expected to lead to the discovery of relevant and admissible evidence.

Mrs. Allen’s Motion for Discovery Under Rule 167 first requested “[C]opies of any surveys or test reports done by anyone, which reports are in the custody or possession of defendant, which reflect tests or surveys done in any grocery store to determine the amount or composition of particles released upon the decomposition by burning of plastic sheeting containing polyvinyl chloride, either presently used or formerly used by Safeway Stores, Inc. for wrapping meats in its meat departments.” It is argued that any such surveys or tests would be privileged because they were done in anticipation of or as part of the investigation of a claim or lawsuit. The results of a test or survey done after the institution of Mrs. Allen’s suit or after Safeway and Charter Oak had good cause to believe such a suit would be filed would be privileged if the defendant could show the survey or test was made “in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.” The privilege against discovery can be invoked only where the document sought to be protected was prepared in connection with the prosecution or defense of the lawsuit in which the discovery is sought, and in the instant case Charter Oak denied that any survey or test of the type requested had been performed in connection with Mrs. Allen’s claim. Thus, subject to a showing of good cause and materiality and subject to the limitation announced by this Court in Ex Parte Shepperd, 513 S.W.2d 813 (Tex.1974), the tests and surveys requested by Relator and in the custody of Charter Oak are discoverable because, by Charter Oak’s admission, they were not prepared in connection with the prosecution or defense of Mrs. Allen’s suit. In Shepperd we held that production of reports prepared by non-testifying experts in a separate pending suit should not be ordered produced except upon “an especially rigorous showing of good cause”. Finding no such showing here, we hold that Relator is not entitled to procure by discovery any tests and surveys made by experts employed “solely for consultation” in similar pending suits, if any, against any of these defendants. However, in connection with other such tests and surveys, we are persuaded that they would be material to the issue of causation and that the complexity and substantial expense of conducting similar tests suffice to show good cause. We therefore hold that, except insofar as such tests and surveys came within the rule announced in Shepperd, supra, the trial court abused its discretion in denying this aspect of Relator’s motion for discovery.

Mrs. Allen also sought production of “[A]ll complaints, either in the form of formal complaint by lawsuit, or informal complaints by letter or inquiry by private individuals, or letter of complaint or inquiry by government agencies in the possession of the defendant or to which it has access, claiming that persons either in the Dallas area or elsewhere have contracted cancer as a result of breathing fumes emitted from hot wire cutting of plastic sheeting containing polyvinyl chloride, either before or after May of 1974; and all correspondence, documents, investigative reports, or any paper by which the defendant responded to these complaints.” In support of Judge Hum-phreys’ order Charter Oak asserts that all of the above-enumerated items would be inadmissible hearsay and are irrelevant to the issues in Mrs. Allen’s suit. The argument is not well founded. Rule 167 does not require as a prerequisite to discovery that the items sought to be discovered be admissible into evidence. It is enough that the documents in question be “reasonably calculated to lead to the discovery of” evidence material to the cause of action. Furthermore, the above-described complaints and answers might well establish a pattern of disease and for that reason are relevant on the issue of causation. Thus the documents are material to the issue of causation, and, together with their unavailability from any other source, this suffices to show good cause for their production.

Additionally, Mrs. Allen sought production of “[A]ll medical reports, laboratory reports, or any reports containing the opinions of experts, not made by defendant in connection with the investigation or defense of plaintiff’s claim, either directly written by the expert or summaries thereof, including physicians, engineers, industrial hygienists, or any expert person, in any way dealing with the possibility or probability that fumes released in the hot wire cutting of plastic sheeting containing polyvinyl chloride could or might cause cancer or any type of lung disease.” Copies of scientific studies reflecting any conclusions concerning the possible causal relationship between polyvinyl chloride or other fumes emitted from the burning of the material in question and cancer or any other lung disease were also requested. Subject to the limitations announced by this Court in Shepperd, supra, these items, too, are discoverable. The reports are directed to the issue of causation and are unavailable from other sources. The request for production specifically excludes reports made by Charter Oak in connection with the investigation or defense of Mrs. Allen’s claim. However, the reports of experts who have been retained solely for consultation in the instant case are immune from discovery. Tex.R.Civ.P. 186a; Houdaille, supra. Similarly, reports of experts who have been retained in other pending suits of the same nature and whose reports would be unavailable to the opposing party in such cases are not discoverable for purposes of the instant case absent “an especially rigorous showing of good cause.” We find no such showing here.

By her motion for discovery Mrs. Allen also sought: “[A]ll correspondence, memoranda, safety bulletins, or any other communications between the defendant and any other person either before or after plaintiff’s claim arose on or about May of 1974, not made by defendant in connection with the investigation or defense of plaintiff’s claim, reflecting a decision on the part of Safeway Stores to abandon the use of hot wire cutting of plastic meat wrapping material, reflecting the possibility of a health hazard being suffered by people breathing fumes from hot wire cutting of such material; reflecting expert concern in the industry about such a hazard; reflecting any corrective measures that could or should have been taken on the part of the employer or manufacturer to correct any health hazards related to hot wire cutting of plastic sheeting or related in any way to polyvinyl chloride fumes released thereby; and reflecting any other relevant information concerning the hazard or potential hazard which has or did cause Safeway Stores, Inc., plaintiff’s employer, to discontinue the use of these materials, or which does or would cast probative light on whether or not plaintiff’s cancer is or could have been caused by polyvinyl chloride fumes breathed while in the course of her employment for her employer, Safeway Stores, Inc.” These documents, too, would be relevant on the issue of causation. They are internal documents of Safeway and unavailable from any other source. Furthermore, Mrs. Allen has sufficiently demonstrated a need for the documents. We hold the trial court abused its discretion in denying Mrs. Allen’s motion for discovery in this respect.

Finally, Relator seeks production of copies of all reports from the experts Charter Oak intends to call as witnesses in the trial of this case. Charter Oak, in brief and in oral argument, admits that such reports are properly discoverable, but it asserts that it has not yet employed its expert witnesses. Relator does not argue to the contrary, and thus there appears to be no dispute between the parties on this aspect of the case. Charter Oak is under a clear legal duty to disclose the reports of expert witnesses who will testify at the trial.

We thus conclude that in the respects and for the reasons enumerated above, the trial court abused its discretion in denying Mrs. Allen’s requested discovery from Charter Oak. The Respondent does not dispute that if the items are discoverable from Charter Oak, they are also subject to subpoena from nonparties Safeway and Travelers. See Tex.R.Civ.P. 186a. We therefore hold that for the reasons detailed above, the trial court abused its discretion in denying Relator’s Rule 215a motion to compel production of the documents in question.

We anticipate that Judge Humphreys will vacate his orders denying discovery of the information in question and will enter an order consistent with this opinion. Should he fail to do so, the Clerk of the Supreme Court will be instructed to issue the writ of mandamus.

      . All references are to Texas Rules of Civil Procedure (1976).


text:
    In re T. David VAN ORDEN. Ex parte Billy Wayne BARNETT.
    No. 55118.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1977.
   JUDGMENT

WHEREAS, on the 22nd day of August, 1977 this Court made and entered the following order, to-wit:

“IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

In re T. DAVID VAN ORDEN

Ancillary to:

Ex parte BILLY WAYNE BARNETT

NO. 55,118

ORDER

“WHEREAS, on May 27, 1977, in Ex parte Billy Wayne Barnett, Cause No. 55,118 in the Texas Court of Criminal Appeals, this Court entered an order reciting that the Honorable T. David Van Orden, court-appointed counsel for the indigent habeas corpus petitioner Billy Wayne Barnett in said cause, had not filed a brief in behalf of said Billy Wayne Barnett, and further reciting that under previous decisions of this Court it is required that court-appointed counsel shall file a brief in cases of such type, and

“WHEREAS, the said order of May 27, recited:

‘It is therefore ORDERED that appellant’s counsel, the Honorable T. David Van Orden, shall file a brief in this Court in appellant’s behalf on or before Monday, June 13, 1977.’

and

“WHEREAS, as of June 27, 1977, no brief in compliance with said order of May 27,1977, had been filed in this Court, and on June 27, 1977, the Honorable Alfred Walker in his official capacity as Executive Administrator of this Court in the discharge of his official duties under the direction of this Court talked to the said T. David Van Orden on the telephone regarding his failure to file a brief as previously ordered by the Court, and the said T. David Van Orden informed the said Alfred Walker that the brief would be in the mail the next day, and

“WHEREAS on this 22nd day of August, 1977, no brief has been filed in this Court by the said T. David Van Orden, on behalf of the said Billy Wayne Barnett, in the said Cause No. 55,118, as ordered by this Court on May 27, 1977,

“WHEREFORE, premises considered, it now appears from the records of this Court that the said T. David Van Orden has failed to comply with the said order of this Court of May 27, 1977, and is by such failure in contempt of this Court,

“NOW, THEREFORE, it is ORDERED, that the said T. David Van Or-den shall show cause why he should not be held in contempt of this Court and punished therefor, and that he shall do so by filing his sworn affidavit, and by affidavits of other witnesses thereto if any there be, on or before the 19th day of September. 1977, which affidavits shall state facts that deny or excuse the said contempt, if there be any such facts. And it is further ORDERED that the Clerk of this Court shall issue a NOTICE TO SHOW CAUSE commanding the said T. David Van Orden to show cause, in the manner and within the period above specified in this order, why he should not be held in contempt of this Court and punished therefor; and a copy of this order shall accompany said notice.

“It is so ordered on this 22nd day of August, 1977.

PER CURIAM”

and

WHEREAS, the Clerk of this Court duly issued a Notice to Show Cause as specified in said order of August 22, 1977, and said Notice to Show Cause, together with a copy of said order of August 22, 1977 was properly and personally served on the said T. David Van Orden on the 29th day August, 1977; and

WHEREAS, on this 23rd day of September. 1977, no brief has been filed in this Court by the said T. David Van Orden, on behalf of the said Billy Wayne Barnett in said Cause No. 55,118, as ordered by this Court on May 27, 1977; and

WHEREAS, on this 23rd day of September. 1977, neither the said T. David Van Orden nor anyone acting in his behalf has filed an affidavit by the said T. David Van Orden or any other witness either denying or excusing the contempt recited in said order of August 22, 1977; and

WHEREAS, on this 23rd day of September. 1977 neither the said T. David Van Orden nor anyone acting in his behalf has made any response to said order of August 22, 1977 or to said Notice to Show Cause;

NOW, THEREFORE, it is ORDERED, ADJUDGED and DECREED by the Court of Criminal Appeals of the State of Texas that:

(1) The said T. David Van Orden is in contempt of this Court, and he should be and shall be punished for such contempt.

(2) The said T. David Van Orden shall be punished for said contempt by confinement in a county jail for ten (101 days and by fine in the amount of One Hundred Dollars ('8100.001.

(3) The Clerk of this Court shall forthwith issue a capias addressed to any Sheriff within the State of Texas commanding him to arrest the said T. David Van Orden and place him in jail and there safely keep him imprisoned for a period of ten 1101 days and thereafter until said fine of One Hundred Dollars ($100.001 said capias shall recite generally the proceedings had in this case, and it shall be accompanied by a certified copy of this judgment to be served on the said T. David Van Orden as further evi-dénce of the Sheriff’s authority.

(4) The fine assessed against said T. David Van Orden as a part of his punishment herein may be discharged in any manner provided by law and in the same manner that a judgment and sentence rendered against a defendant for a fine in an ordinary criminal case can be discharged; and all money paid in discharge of said fine shall be paid to the Clerk of this Court.

(s) John F. Onion. Jr. JOHN F. ONION, JR., PRESIDING JUDGE

(s) Leon Douglas LEON DOUGLAS, JUDGE

(s) Truman Roberts TRUMAN ROBERTS, JUDGE

(s) Wendell A. Odom WENDELL A. ODOM, JUDGE

(s) W. T. Phillips W. T. PHILLIPS, JUDGE


author: ONION, Presiding Judge. ROBERTS, Judge, PHILLIPS, Judge,

text:
    Douglas Craddock DUSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52622.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.
    James M. Pape and Edward A. Mallett, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Terry G. Wilson, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is from a conviction for driving a motor vehicle upon a public highway while intoxicated. After a verdict of guilty, the court assessed punishment at thirty (30) days in jail and at a fine of $200.00. Appellant was placed on misdemeanor probation for one (1) year. See Article 42.13, Vernon’s Ann.C.C.P.

In his sole ground of error appellant urges the “trial court erred by including in its charge to the jury an instruction that ‘To render duress a defense to a criminal charge, the act must be done when the party threatening the duress is actually present.’ ”

A brief recitation of the facts is necessary. On July 24, 1974 appellant was seen driving his automobile in a reckless manner near the intersection of South Shepherd and Westheimer Streets in Houston. A little later he collided with another vehicle in the 1700 block of South Shepherd not far from the Hobbit Hole Club.

Houston police officers Foulis and Scott, who investigated the accident, were of the opinion that the appellant was intoxicated. Appellant told the officers his bleeding lip was a result of an earlier fight at a bar.

A subsequent breathalyzer test reflected appellant’s blood contained 0.20% alcohol. The question of intoxication was never disputed as appellant himself admitted he was intoxicated.

Bobby Cantu, owner of the Diablo Club, was called by the appellant. He arrived at his club about 5 p. m. on July 24, 1974 and found appellant “causing trouble.” Appellant was table hopping and would also stand at the bar preventing the waitresses from getting their drink orders. Cantu observed that appellant was “high,” and while he did not know how many drinks appellant had had, his current tab noted four. When appellant spilled a drink, Cantu ordered him to leave and escorted him out the rear door. Outside an argument ensued and when he saw appellant gesture as if to hit him, he struck appellant on the mouth and told appellant to leave before he hit him (appellant) again. Appellant ran to his automobile and departed. He did not follow or chase appellant.

The twenty-three year old appellant testified he went alone to the Diablo Club about 3 p. m. on July 24,1974 and began drinking Scotch and making a personal profile of some of the employees on the paper napkins noting character traits, etc. When he went to the bathroom, the napkins and his pen disappeared and he could not get a satisfactory answer from the waitress as to what happened to his notes so he changed tables. After he had been there awhile, he decided if he stayed until 6 p. m. he would be intoxicated so he telephoned a friend, Douglas Harrison, to pick him up at 6 p. m. so he wouldn’t have to drive.

About 5 p. m. Cantu arrived and his troubles began. Appellant stated he could not get service so he went to the bar, and later began making selections on the juke box, which he apparently was not permitted to do. Before 6 p. m. Cantu ordered him to leave, and appellant related he left by the front door, and when he got to the side of the building Cantu came out the back door. Appellant acknowledged Cantu mistook a gesture he made and struck him in the mouth and knocked him down. Cantu then threatened to kill him if he did not leave the premises. Appellant ran to his automobile and left. The accident occurred a short time later about eighteen blocks or two miles away.

Appellant stated he would not have driven his automobile in an intoxicated condition if it had not been for Cantu’s blow and threats. He was frightened and could not wait for Harrison and sought to reach his friends at the Hobbit Hole Club.

In submitting the defense of duress to the jury at the guilt stage of the trial the court charged in part as follows:

“In a prosecution for a misdemeanor offense it is an affirmative defense to prosecution that the defendant engaged in the proscribed conduct because he was compelled to do so by force or threat of force.
“Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.
“To render duress a defense to a criminal charge, the act must be done when the party threatening the duress is actually present. The party is actually present if he is in such proximity to the place where the act is done as to have control over the person threatened. The defense of duress is unavailable if the defendant intentionally, knowingly or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion. . . . ”

Appellant contends the court failed to respond to his objection that the charge was erroneous in that it instructs the jury that the party threatening the duress must be “actually present.”

Former Article 38, Vernon’s Ann.P.C., 1925, relating to duress, did provide in part:

“3. The act must be done when the person threatening is actually present.”

This was construed to mean that a threatening party is actually present if “the person shall be so near as to have the party with the means at his command under his power and control at the time he does the act.” Paris v. State, 35 Tex.Cr.R. 82, 31 S.W. 855 (1895).

V.T.C.A., Penal Code, § 8.05, has replaced former Article 38. It reads:

“(a) It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.
“(b) In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force.
“(c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.
“(d) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
“(e) It is no defense that a person acted at the command or persuasion of his spouse, unless he acted under compulsion that would establish a defense under this section.” (Emphasis added.)

It is observed that the “actually present” requirement of former Article 38 is not found in the new statute.

It appears, however, that while the court in the instant case charged in accordance with § 8.05, supra, it added the former requirement of “actually present.” This addition should not have been made to the court’s charge on duress. Nevertheless, no reversible error is presented.

The evidence did not raise the defense of duress and the trial court need not have charged on the same.

V.T.C.A., Penal Code, § 2.04(c), provides:

“The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.”

There was no evidence of “force or threat of force” to cause the appellant to become intoxicated. He admitted he voluntarily went to the Diablo Club and became intoxicated. He then began having difficulties which led to his eviction during which he was struck and threatened if he did not leave the premises. There was no evidence of “force or threat of force” to leave the premises by means of driving an automobile and only by that means despite the fact appellant was intoxicated. Cantu apparently did not know how appellant had arrived at the club. While it might not have been practical for appellant to return to the club to call his friend, Harrison, or others, or to call a taxicab, there was testimony that telephones were available at business establishments within two blocks of the Diablo Club. Cantu testified he did not pursue the appellant, and the appellant testified that after he left in his car he didn’t think anyone was chasing him and he didn’t know why he didn’t go to a telephone down the street and call a friend. He did state he did not stop prior to the accident to call a cab because he “was just so shook up and scared I just kept going and tried to get to the Hobbit Hole where I knew some people.”

It should be remembered that the offense is driving while intoxicated. That offense was shown to have occurred on a public highway some two miles or eighteen blocks from where the altercation with Cantu, who was not pursuing him, occurred. Under the circumstances, the court need not have charged on the defense of duress, and the fact that the court gave a charge on duress, even though erroneous as mentioned, does not constitute reversible error.

For the reasons stated, appellant’s contention is overruled. The judgment is affirmed.

ROBERTS, Judge,

dissenting.

Appellant’s sole contention is that the trial court reversibly erred in its instruction to the jury on the issue of duress. I would sustain this contention and reverse.

The record reflects that on July 24, 1974, appellant was observed driving recklessly on South Shepherd Street in Houston. In the 1700 block of South Shepherd, near the Hobbit Hole Club, he ran into an automobile driven by Warren Gourney.

Houston Police Officers R. F. Foulis and J. L. Scott investigated the accident. Based on their experience and their observations of appellant, both Foulis and Scott concluded that the appellant was intoxicated.

Both officers testified that the appellant had a badly split and bleeding lip at the time of their arrival at the scene of the accident. However, both also stated that appellant told them at the time that this injury was not a product of the collision but was instead the result of an earlier fight at a bar.

Houston Police Officer G. W. Anderson testified that he was a certified breathalyzer operator. On July 24, 1974, the appellant, who appeared to be intoxicated, was brought into Anderson’s office. The appellant agreed to submit to a breath test. Anderson gave him the test, which showed that appellant’s blood was 0.20% alcohol. The parties stipulated that the breath testing machine functioned properly at the time of this test.

Bobby Cantu, testifying on behalf of the appellant, stated that he was the owner of a topless “go-go club” called the Diablo Club. On July 24, 1974, he arrived at the club at 5:00 p. m. and found appellant “causing trouble.” According to Cantu, appellant was table-hopping and interfering with the waitresses. After attempting several times to persuade appellant to sit down, Cantu saw appellant spill a drink. Cantu stated that appellant had had a good deal to drink by this time, which Cantu estimated to be approximately 6:00 p. m.

Cantu then ordered appellant to leave the Diablo Club and escorted appellant out the door. Once outside, the two men began arguing. Cantu believed that appellant was about to hit him, so he punched appellant on the mouth. According to Cantu, he then told appellant to leave “before I hit him again.” Appellant ran to his car and left.

The appellant took the stand and attempted to explain away his disruptive behavior. However, he admitted that much of Cantu’s testimony was accurate and that he was intoxicated when he left the Diablo Club at approximately 5:40 p. m.

Agreeing with Cantu’s testimony, appellant stated that shortly after he walked outside the Diablo Club Cantu misinterpreted a gesture of appellant’s and hit the appellant, knocking him down. The appellant testified that at this time Cantu was “really, really irate, very angry.”

The appellant also testified that Cantu’s threats included a threat to kill appellant if appellant did not leave the area immediately. In response to these threats, appellant ran to his car and drove away.

The appellant also testified that he had previously arranged to meet Doug Harrison in the club’s parking lot at 6:00 p. m. Aware of his intoxication, appellant intended to have Harrison drive him away from the club, but his enforced departure twenty minutes before 6:00 o’clock made this meeting impossible.

The appellant also stated that if he had not been forced by Cantu’s blow and threats to leave immediately, he would not have driven in his intoxicated condition. He- also testified that if he had not been forced to leave, and if Harrison had not come to the parking lot as scheduled, he would then have gone inside the club and used the telephone there to call for a taxi. These actions were foreclosed, according to appellant, by his fear that Cantu would kill him.

The appellant testified that when he left the Diablo Club he was on his way to the Hobbit Hole Club to use that club’s telephone. It was during this trip that he had the collision with Gourney. Appellant acknowledged that the distance between the Diablo Club and the Hobbit Hole was approximately eighteen blocks; he stated, however, that he did not stop sooner to call a cab because he “was just so shook up and scared I just kept going and tried to get to the Hobbit Hole where I knew some people.”

The trial court charged the jury on the defense of duress. However, as part of this instruction the court charged the jury as follows:

“To render duress a defense to a criminal charge, the act must be done when the party threatening the duress is actually present. The party is actually present if he is in such proximity to the place where the act is done as to have control over the person threatened.”

This instruction was a proper one under our former Penal Code. Article 38, V.A. P.C.; Paris v. State, 35 Tex.Cr.R. 82, 31 S.W. 855 (1895).

The appellant objected to this portion of the court’s definition of duress and requested the following special charge:

“In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the defendant engaged in the proscribed conduct because he was compelled to do so by force or threat of force.
“Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.
“The defense provided by this section is unavailable if the defendant intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
“The burden of proof is on the defendant to prove an affirmative defense by a preponderance of the evidence. The term ‘preponderance of the evidence’ means the greater weight of credible evidence.
“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant did commit the offense of driving while intoxicated as alleged in the information, but you further find by a preponderance of the evidence that the defendant engaged in the proscribed conduct because he was compelled to do so by force or threat of force, you will acquit the defendant and say by your verdict ‘not guilty.’ ”

Article 38 has been replaced by Section 8.05 of the 1974 Penal Code, which provides as follows:

“Sec. 8.05. Duress
“(a) It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.
“(b) In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force.
“(c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.
“(d) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
“(e) It is no defense that a person acted at the command or persuasion of his spouse, unless he acted under compulsion that would establish a defense under this section.”

A reading of Section 8.05 reveals that the requirement of actual presence has been removed from our duress statute. Instead, our current statute provides that one raises the affirmative defense of duress in misdemeanor cases where the evidence suggests that the accused was compelled to commit the offense by force or the threat of force. V.T.C.A., Penal Code, Section 8.05(b). Such compulsion “exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” Y.T.C.A., Penal Code, Section 8.05(c).

In felony cases, however, the accused is put to a significantly greater burden in raising duress as an affirmative defense. He must show that his criminal act was compelled by the “threat of imminent death or serious bodily injury to himself or another.” V.T.C.A., Penal Code, Section 8.05(a).

This distinction between felonies and misdemeanors is important for two reasons. First, it reveals a Legislative intention to make the affirmative defense of duress more readily available to those charged with misdemeanors; unquestionably an accused has a lesser burden when he is attempting to show that he was coerced by force or the threat of force than he does in proving that he was compelled to act by a threat of imminent death or serious bodily injury. See V.T.C.A., Penal Code, Section 1.07(a)(34).

However, a second, and — for this case— more important, feature of this distinction between felony and misdemeanor duress is that in felony cases the compulsion must be “imminent” while in misdemeanor cases there is no requirement that the compulsion be close in time. Accord: Practice Commentary to Section 8.05, 1 V.T.C.A., Penal Code, page 234.

This distinction is important because it indicates that the Legislature was aware of time limitations when it drafted Section 8.05. Support for this view can be found by comparing Section 8.05 with the two statutes from which it was derived: Section 2.09 of the Model Penal Code and Section 8.04 of the 1970 State Bar Proposed Revision of the Texas Penal Code. Those two proposed statutes are so similar to Section 8,05 in both language and structure that one can scarcely doubt that the two earlier statutes were the models for the duress statute which the Legislature ultimately adopted.

However, there are two basic differences between Section 8.05 and its two models: its distinction between felony and misdemeanor duress, and its imposition of a time limitation on felony duress that is not imposed on misdemeanor duress.

From this I can only conclude that the Legislature was aware of time limitations when it drafted the duress statute. It follows that although an imminent threat is required to raise the defense in a felony case, the force or threat of force involved in misdemeanor duress need not be imminent or even close in time.

It also follows that a Legislature which made these careful distinctions between time limitations was equally aware of distance, or locational, limitations, and that it knew it was abolishing the requirement that the person threatening the duress be physically present. Indeed, considering the clear and explicit language of Article 38(3) of the former Code, no other conclusion can be reasonably defended.

I would therefore hold that Section 8.05 means what it says: In misdemeanor cases, the affirmative defense of duress is not expressly limited by either time or distance, and actual presence is not explicitly required. What is required is that the accused be compelled by force or the threat of force which would render a person of reasonable firmness incapable of resisting the pressure. It follows that the court’s charge in this case was erroneous.

The majority holds, however, that the error in the charge was harmless, even if it be conceded that actual presence is no longer required by the statute. The majority argues that the appellant was not entitled to a charge on duress at all, since there was no testimony that anyone forced him to drive an automobile or to become intoxicated.

The majority apparently considers the appellant’s testimony to be without value. The appellant testified that Cantu had struck him and knocked him to the ground; that Cantu was extremely angry; and that Cantu threatened to kill him if he did not leave immediately. This testimony was sufficient to raise the issue of the existence of the affirmative defense of duress. In responding to the kind of “force and threat of force” exerted here by Cantu, a person of reasonable firmness would be justified in yielding to this pressure by attempting to get away from the Diablo Club as quickly as possible, even if it meant driving while intoxicated. Compare White v. State, supra; Harris v. State, 91 Tex.Cr.R. 446, 241 S.W. 175 (1922).

In this regard, it should be remembered that the offense did not occur only at the location of the collision — that location is merely the place where the offense was first discerned by police officers. In fact, the evidence is undisputed that appellant began committing the offense as soon as he left the parking lot of the Diablo Club. See Graves v. State, 539 S.W.2d 890 (Tex.Cr. App.1976) (majority and concurring opinions).

Therefore, I would hold that the appellant in this case did raise the affirmative defense of duress.

Moreover, it is well settled that the accused in a criminal case is entitled to a charge on every defensive theory raised by the testimony “whether the evidence is produced by the State or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted or whether it is conflicting.” 31 Tex.Jur.2d, Instructions, Sec. 110, p. 660, quoted with approval in Gautheir v. State, 496 S.W.2d 584, 585 (Tex.Cr.App.1973). Accord: Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974). Cf. V.T.C.A., Penal Code, See. 2.04(c).

What this means in this case is that just as the State presented evidence which, if believed, showed that the appellant was guilty of the statutory offense charged, so had the appellant given testimony which, if believed, established the statutory affirmative defense of duress. Therefore, just as the State was entitled to have its case correctly presented to the jury unburdened by an instructed verdict of acquittal, so was the appellant entitled to a correct charge which embodied the evidence brought out by the defense. It is not important to know whether the trial judge believed the State’s evidence or that of the appellant — or neither; both were equally entitled to a proper charge.

Nor is it important whether this Court believes or disbelieves the appellant’s testimony; in either event he is entitled to have that testimony fairly considered by the jury. In Harris v. State, supra, and White v. State, supra, this Court held that the issue of duress is a fact issue for the jury. Therefore, when such a question is raised by the evidence, the jury must be charged on the law of duress. White v. State, supra.

However, where the accused does receive a charge on duress, but that charge places upon him a greater burden than the statute allows, he is entitled to a new trial. Stafford v. State, 104 Tex.Cr.R. 493, 284 S.W. 581 (1926).

In the case before us the court’s charge required the jurors to find that Cantu was actually present before they could find in favor of the appellant on the issue of duress. This was error which cannot be la-belled harmless, since it placed a burden on the appellant which he was not required to meet. Stafford v. State, supra.

Because the appellant was entitled to a charge on duress, and because he received a charge which placed an unlawful burden of proof upon him, the judgment should be reversed and the cause remanded.

PHILLIPS, Judge,

dissenting.

I respectfully dissent. The majority affirms notwithstanding the admitted fact that the court’s charge erroneously placed a greater burden upon the appellant to establish the defense of duress than is actually required by law on the theories that the defense of duress was not actually raised by the evidence and that there is no showing that the appellant distinctly pointed out said error to the trial court in a timely manner in compliance with Art. 36.14, V.A. C.C.P.

Appellant testified that Cantu struck him, knocked him to the ground, was extremely angry and threatened to kill him if he did not leave immediately. Appellant further testified that he did not stop prior to the accident because he was just so shook up and scared he just kept going and tried to get to the Hobbit Hole where he knew some people. Said evidence clearly raises the defensive theory that appellant was operating the motor vehicle under the compulsion of fear from Cantu’s threat of force. The fact that appellant did not think he was being chased does not detract from his almost certain recognition of the fact that pursuit at any moment was definitely a possibility. The majority apparently also gives great significance to appellant’s testimony that he didn’t know why he didn’t go to a telephone down the street and call a friend or stop prior to the accident and call a cab. The failure of a person acting under compulsion from fear to choose the wisest of the existing alternatives is entirely consistent with reasonably expected consequences of fear. In fact, our statutory definition of “adequate cause” under V.T. C.A., Penal Code, Sec. 19.04(c), recognizes that terror can render the mind of a person of ordinary temper incapable of cool reflection.

Appellant filed one separate one and one-half page, two paragraph instrument entitled “Defendant’s Requested Special Charge and Objection to Court’s Charge Defining Duress”. It amounted to an unusually distinct and specific instruction pointing out to the trial court that the actual presence of the threatening party was erroneously required by the court’s charge on the defense of duress and that such was not an element of said defense under the statute. V.T.C.A., Penal Code, Sec. 8.05. The trial judge wrote on the bottom of said combined objection and requested instruction:

“Order
The Defendant’s requested instruction is denied, to which the Defendant excepts,
/s/ Neil McKay Judge”

Thus, appellant’s specific and distinct objection was denied and it is immaterial what the trial judge called same when overruling it.

      . Article 38 provided:
      “A person forced by threats or actual violence to do an act is not liable to punishment for the same. Such threats, however, must be—
      “1. Loss of life or personal injury.

        “2. Such as are calculated to intimidate a person of ordinary firmness.
      “3. The act must be done when the person threatening is actually present.
      “The violence must be such actual force as restrains the person from escaping, or such ill-treatment as is calculated to render him incapable of resistance.”
      In Paris, the court held:
      “While it is true that the literal language of the article in question requires the party du-ressing another to do an unlawful act to be actually present at the time, yet we apprehend that a proper construction of this section means only that the person shall be so near as to have the party with the means at his command under his power and control at the time he does the act; and a person 20 or 30 paces from the immediate place of the killing, armed with a pistol or shotgun, might have the person doing the act as much within his power and control as if he was only a few feet distant from him when he performs the act. In one sense, W. G. Parish was actually present at the time of the killing, and the language of the court might embrace the idea of his actual presence, but yet it may have been misunderstood, and the jury might have been misled thereby, and believed that the court required them to find that he was at the immediate spot of the killing before they would allow the defense of duress . . . .”

        Paris v. State, supra at 95-96, 31 S.W. at 858.
      Thus the holding in Paris makes it clear that although Article 38 required actual presence, the issue of duress was raised under our former Code whenever the evidence suggested that the accused was in such close proximity to the person threatening him that that person had “power and control” over the accused.

      . Appellant’s objection to the charge and his special requested charge were timely filed in writing with the court. See Arts. 36.14, 36.15, V.A.C.C.P.; McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975). The court overruled the objection and denied the requested charge.

      . This greater burden for felony duress is similar to the provisions of duress statutes in those states which have refused to recognize the defense at all for the most serious crimes. See comment to Section 2.09 (Duress as a Defense), ALI, Model Penal Code, Tentative Draft No. 10, p. 2.

      . “Section 2.09. Duress.
      “(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
      “(2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.
      “(3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. [The presumption that a woman, acting in the presence of her husband, is coerced is abolished.]
      “(4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not preclude such defense.” ALI, Model Penal Code, Proposed Official Draft, p. 40.

      .“Sec. 8.04. Duress
      “(a) It is a defense to prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another, which threat or use of unlawful force a person of ordinary firmness in the actor’s situation would not have resisted.
      “(b) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
      “(c) It is no defense that a woman acted at the command or persuasion of her husband, unless she acted under compulsion that would establish a defense under this section.
      “(d) If the actor’s conduct is otherwise justifiable under Section 9.21 (necessity), this section does not preclude that justification.” Tex. Pen.Code: A Proposed Revision, p. 70 (1970).

      . This is not to say that time and distance can never be factors in determining the issue of duress; in many cases they will be factors. However, they should not be conclusive factors; they should be pertinent only to the extent that they support the statutory definition of duress.

      . It should be remembered that in Texas duress has traditionally been a defense created solely by statute. See V.T.C.A., Penal Code, Sec. 8.05 (1974); Art. 38, V.A.P.C. (1925); Art. 44, Vernon’s Tex.Cr.St. (1916); Art. 43, Tex.Pen.Code (1879); Art. 45, Tex.Pen.Code (1856); Stanley v. State, 16 Tex.App. 392 (Austin Term, 1884); Paris v. State, supra; White v. State, 150 Tex.Cr.R. 546, 203 S.W.2d 222 (1947). Compare Marks v. State, 144 Tex.Cr.R. 509, 164 S.W.2d 690 (1942).

      . Section 2.04(c) provides:
      “The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.”

      . This Court has held that the “harmless error” provisions of Art. 36.19, V.A.C.C.P., by their own terms apply only when the requirements of Articles 36.14, 36.15, 36.16, 36.17, and 36.18, V.A.C.C.P., have not been complied with. Dowden v. State, 537 S.W.2d 5, 6, n. 1 (Tex.Cr.App.1976). As noted earlier, the appellant in this case did comply with Articles 36.14 and 36.15 by timely filing, in writing, his objection to the court’s charge and his special requested charge. Article 36.19 does not apply. Dowden v. State, supra.


author: DAVIS, Commissioner.

text:
    Clifford Lincoln McILVEEN, Appellant, v. The STATE of Texas, Appellee.
    No. 53764.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.
    Appellant’s Motion for Rehearing Denied Jan. 18, 1978.

      Mac L. Bennett, Jr., Normangee, Jack B. Ellison, Buffalo, for appellant.
    Robert W. Gage, County Atty., Teague, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for voluntary manslaughter. Punishment was assessed by the jury at 15 years.

The sufficiency of the evidence is not challenged, therefore a brief statement of the facts will suffice. Ted Spurgeon, Deputy Sheriff of Freestone County, testified that on September 27, 1974, the appellant walked into the sheriff’s office with a bloody and broken .22 rifle in his hands and stated: “I need some help. I think I killed a man.” Appellant then took Spurgeon and others to a dirt road where the body of Cicero Watts was found lying next to his pickup truck with his head “smashed in.” The appellant testified that the deceased and appellant’s wife had been “messing around.” Appellant testified that on three separate occasions over the years he had told the deceased to leave his wife alone. Appellant testified that on September 27, 1974, he had followed the tracks of his wife’s car onto the secluded road where the killing occurred. Upon arrival, he found the deceased and his wife together in the deceased’s truck. Appellant took his rifle from the car and walked toward the truck and yelled: Hold it. Nobody run.” Appellant then fired the rifle two or three times in the air. Mrs. Mcllveen jumped from the truck and ran across a field. Appellant testified the deceased jumped from the truck and was reaching in for his shotgun. Appellant then opened fire, after which he “rushed in” and beat the deceased with the butt of his rifle.

The appellant first complains that the jury was allowed to separate on three occasions during its deliberations without the personal consent of the appellant.

The record reflects that on July 23, 1975, the jury began its deliberation on guilt or innocence at 4:45 p. m. At 7:30 p. m., the jury sent out a note asking if they could go to eat. The jury was brought into open court and the following took place:

“THE COURT: Ladies and gentlemen. As I recall the last note indicated you wished to recess now for some food and then you would return and work. I have brought you back into the courtroom for the reason I need at this point to again admonish you that during your absence you are not to discuss this case among yourselves nor with others nor permit anyone to discuss it with you. . Don’t discuss the case at all until all twelve are back in the jury room. I will see you back here at whatever time you all wish to finish up.
“MR. GAGE [County Attorney]: Do they all go together?
“THE COURT: Any objection to their separating, gentlemen?
“MR. BENNETT [Defense counsel]: No objection on the part of Mr. Mcllveen.
“THE COURT: They are not required to and the lawyers have indicated they have no objection.”

The appellant was never asked for and never gave his personal permission for the separation.

The jury resumed its deliberations at 8:15 p. m. and worked until 9:35 p. m., when they were recessed and allowed to separate for the night. Once again appellant’s attorney gave his consent, but the appellant said nothing.

The jury started deliberating at 9:00 a. m. the next morning, July 24,1975. At 9:45 they returned a verdict finding the appellant guilty of voluntary manslaughter.

The court finished reading the charge on punishment to the jury at 11:45 a. m., and the jury indicated they would like to eat before they started their deliberations. The court, without seeking the consent of the appellant or his attorney, permitted the jury to separate for lunch. The jury returned at 1:15 p. m. and began their deliberations on punishment.

Article 35.23, Y.A.C.C.P., provides, in pertinent part:

“When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury, after which the jury shall be kept together, and not permitted to separate . until a verdict has been rendered or the jury finally discharged, unless by permission of the court with the consent of each party.”

In Rhynes v. State, 479 S.W.2d 70, Tex.Cr.App., this Court said: “the record should show that appellant personally consented to the jury separation” after the charge of the court had been read and argument concluded at the guilt stage of the trial.

In Goodall v. State, 5.01 S.W.2d 342, 343, Tex.Cr.App., this Court said:

“We affirm the language of Rhynes, supra, and hold that when the jury is allowed to separate after the charge has been read by the court, and before it returns a verdict, the record must show the personal consent of appellant. Absent such a showing, the burden is on the State to rebut the presumption of harm.”

Appellant is complaining about the separations for dinner on the 23rd and for lunch on the 24th. On both of these occasions, the record clearly reflects that the appellant did not give his personal consent for the separation. The burden is thus shifted to the State to “rebut the presumption of harm.”

In an effort to rebut the presumption, the State elicited testimony from 11 of the 12 jurors that they had in no way violated the court’s instructions regarding not discussing the case during the two separations in question. The appellant stipulated that if the twelfth juror were called, she would have testified that she too followed all of the court’s instructions regarding separation.

The appellant argues that this is not sufficient to rebut the presumption. He urges that it is an “absurdity” to “assume that a juror would admit before the Trial Court that he had” violated the court’s instructions.

It is well established that issues of fact as to jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge. See McCartney v. State, 542 S.W.2d 156, Tex.Cr.App., and cases there cited. The court’s decision will not be reversed unless an abuse of discretion is shown. Appleman v. State, 531 S.W.2d 806, Tex.Cr.App. (opinion on motion for rehearing); Powell v. State, 502 S.W.2d 705, Tex.Cr.App.

The trial judge heard all of the witnesses and was free to believe or disbelieve any or all of them. No abuse of discretion is shown in the instant case where the court's finding is based on the unrefuted testimony of all of the jurors that they had not violated the instructions.

The appellant next contends that the trial court erred when it overruled his motion for a. new trial based on three specific instances of improper jury conduct.

The first instance of alleged improper conduct involves statements by various jurors concerning what portion of any sentence they returned the appellant would have to serve. While there is some discrepancy in the testimony of the jurors, it appears that the following assertions were made: (1) that if the jury gave appellant two years he would be out in one year; (2) that if the jury gave appellant ten years he would be free in eighteen months; and (3) that if the jury gave appellant fifteen years he would be free in seven years.

The second alleged instance of misconduct involves the statement by one or more jurors that if they could not reach a verdict at the guilt or innocence phase of the trial the appellant would walk out of the courthouse a free man.

The third alleged instance of misconduct involves the following two statements by one of the members of the jury: (1) “If we can make an example of this defendant, it will help to stop crime in the community and make a safer place in the community in which to rear our children”; and (2) “This case is like Watergate on the television, we haven’t heard all of the facts.”

The State concedes that these statements, or statements similar to them, were in fact made during the jury’s deliberation, but asserts that they are not such as will require reversal of this case.

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

“New trials, in eases of felony, shall be granted for the following causes, and for no other:
“(7) Where the jury, after having retired to deliberate upon a case, has received other testimony ....
“(8) Where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial.”

Some of our decisions have treated statements of jurors regarding the possible effects of parole laws as the receipt of other evidence, Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191, while others have regarded it as jury misconduct, Mays v. State, 167 Tex.Cr.R. 339, 320 S.W.2d 13. In Heredia v. State, 528 S.W.2d 847, 852, Tex.Cr.App., this Court said: “We hold that either principle may apply, depending upon the facts of the case.”

In Heredia v. State, supra, we stated that:

“. . . it is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole. E. g., Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. Consequently,'the mere mention of this common knowledge would not constitute the receipt of other evidence, nor would a further discussion of it constitute receiving new evidence any more than discussion of any other matter of common knowledge by the jury. On the other hand, information may be given to the jury, by a juror or someone else, which would constitute receiving other evidence. * * * [A] misstatement of the law, by being incorrect, would constitute other evidence, since by being false it certainly could not be classified as ‘common knowledge.’ See e. g., Moore v. State, 171 Tex.Cr.R. 182, 346 S.W.2d 349. The receipt of such other evidence, even if nothing further be shown such as would constitute misconduct requiring a new trial under [Art. 40.03] Section 8, on a proper set of facts could require reversal under [Art. 40.03] Section 7.”

The assertions made do not square with the provisions of Art. 42.12, Sec. 15(a), V.A. C.C.P., which makes a prisoner eligible for parole only after he has served “one-third of the maximum'sentence imposed.” Even if the parole law had been correctly stated as being one-third of the sentence, it is "palpably erroneous” to assume the defendant will be discharged at that time. See footnote # 4, Sweed v. State, 538 S.W.2d 119, Tex.Cr.App.; Art. 42.12, Section 15(c), V.A.C.C.P.

The same reasoning applies to the statement that if the jury could not reach a verdict the appellant would walk out of the courtroom a free man. This is an inaccurate statement of the law. Article 36.33, V.A.C.C.P., specifically provides that when a jury has been discharged for failure to agree on a verdict, “the cause may be again tried at the same or another term.”

The statement of the juror that, “This case is like Watergate on the television, we haven’t heard all of the facts,” also amounted to the receipt of other evidence. This statement was an invitation to the jury to consider these “facts.”

The juror's statement about making an example of the appellant to help make the community safe from crime presents no reversible error. See Henderson v. State, 163 Tex.Cr.R. 573, 295 S.W.2d 215.

There were three distinct instances where the jury received other evidence. The issue now becomes one of whether this error is such that the judgment must be reversed. The standard which this Court has established for reversal requires the other evidence to have been “detrimental to appellant” before the case must be reversed. Heredia v. State, supra; Marquez v. State, 172 Tex.Cr.R. 363, 356 S.W.2d 797; Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816.

In the instant case, the evidence is not sufficient to show that any juror relied on or was influenced by the comments in the jury room to the appellant’s detriment. The most direct testimony about the effect of the statements concerning possible parole came from juror Wanda Glazner at the hearing on the motion for a new trial:

“Q And in the deliberations on the matter of punishment it is a fact, isn’t it, that the range of punishment was anywhere from two to twenty years? One or more jurors wanted to assess punishment for two years and one wanted to assess as high as twenty years and it was strung out between that?
“A Yes, sir.
“Q That was in the preliminary discussion, wasn’t it?
“A Yes, sir.
“Q Now, then, it is a fact, is it not, that shortly before the unanimous verdict of fifteen years was assessed that in the general discussion that Dr. Shaver or someone stated if he was given fifteen years and went down and behaved himself he would probably be out in seven years? That statement was made, wasn’t it?
“A I think the question was asked.
“Q And that was answered in the affirmative, wasn’t it?
“A I think so.
“Q And after that question was answered the jury agreed on fifteen years, didn’t it?
“A. Yes.
“Q All right. And it was discussed very freely as to the number of years he would have to serve if he was given hard time as we lawyers call it, wasn’t it?
“A We talked about it.
“Q All right.
“A No one still knew the law.
“Q I know that. We are not talking about you knew the law, but, now, then, before you agreed on the fifteen years someone of the jurors — I am not saying who — I don’t know who made the statement — if he was given fifteen years and went down and behaved himself he would probably be out in seven years? That was made, wasn’t it?
“A I don’t remember if that was made or not.
“Q Ma’am?
“A I don’t remember if that was made or not.
“Q But the time he would be down there was discussed freely before the jury agreed on fifteen years?
“A Yes, we all talked about it.”

While this testimony showed that the jury assessed fifteen years, it does not reveal that the statement was the cause of the assessment. In fact, Glazner specifically testified that this was part of a discussion and that “no one still knew the law.” We have reviewed the record of the hearing on the motion for a new trial and do not find any juror who testified that his or her vote was changed as a result of the discussion.

In relation to the statement regarding a hung jury, we do not find any indication that there was any reliance on it to the detriment of the appellant. No juror indicated that they had in any way considered the statement in deciding how to vote at the guilt stage of the trial or that they had changed their vote as a result of the statement.

The record does not indicate that there was any discussion of the remark that this case was like Watergate and that the jury did not know all of the facts. No juror testified that this statement had any effect on him or her.

We are unable to say that the trial judge abused his discretion in overruling the appellant’s motion for a new trial. The instant case is distinguished from Sweed v. State, 538 S.W.2d 119, Tex.Cr.App., by the fact that in Sweed a juror specifically testified that he had increased his vote on punishment from fifteen to twenty years because of statements by another juror about juvenile parole laws. In the instant case there is no such evidence of any reliance to the detriment of the appellant. No reversible error is shown.

Appellant next complains about a series of “have you heard” questions used to impeach witnesses called by the defense to testify to the appellant’s good reputation because such questions were “not propounded in good faith.” Among the complained of questions were the following: 1. “Have you heard that Lincoln Mcllveen drew a pistol on Tim Robinson in Teague?” and 2. “Have you heard that in 1967 Lincoln Mcllveen rented a building — rented his building next door to his barber shop knowing it would be used for illegal gambling purposes?”

A witness attesting to the good reputation of the accused may be asked on cross-examination whether he has heard of acts of the accused inconsistent with that good reputation to test the witness’ knowledge, if the prosecutor asks the question in good faith believing it has some basis in fact. Sternlight v. State, 540 S.W.2d 704, Tex.Cr.App.; King v. State, 491 S.W.2d 132, Tex.Cr.App.; Gaines v. State, 481 S.W.2d 835, Tex.Cr.App.

At trial the appellant’s counsel made no objection on the ground of bad faith to any of the propounded questions. While similar allegations were made in the appellant’s motion for a new trial, he did not develop any evidence at the hearing on the motion which would show bad faith on the part of the prosecution. Without any showing of bad faith on the part of the prosecutor in asking the questions, no error is shown.

The appellant next complains that the trial court committed error when it allowed Lucy May Dickson to testify that she had seen the appellant draw a gun and threaten to kill Tim Robinson in 1948. Appellant contends that this injects an extraneous offense into the case. This is the same matter which was inquired into during cross-examination of the appellant’s reputation witnesses.

After the reputation witnesses had been cross-examined, the appellant took the stand and testified as follows on direct examination by his own counsel:

“Q . Now, then, a moment ago you heard Mr. Gage ask one or more witnesses had he heard of you pulling a gun on Tim somebody. Did you pull a gun on Tim somebody?
“A No, sir.
“Q You heard him ask someone, the County Attorney asked someone had they heard of your shooting at somebody. Did you shoot at anybody besides—have you ever shot at anybody besides Cicero Watts?
“A No, sir.”

After the defense had closed its evidence, the State called Dickson as a rebuttal witness. She testified that the appellant had, in fact, pulled a gun and threatened to shoot Tim Robinson in 1948.

The only objection that appellant made in the trial court to Dickson’s testimony was that it was “too remote.” Appellant does not challenge the remoteness of the offense on this appeal, but instead claims it to be an extraneous offense. Where the objection made in the trial court is not the same as that urged on appeal, appellant has not properly preserved the complaint for review. Williams v. State, 549 S.W.2d 183, Tex.Cr.App.; Elizaldi v. State, 519 S.W.2d 881, Tex.Cr.App.

Even if the error were before us, there was no error in the admission of Dickson’s testimony. Evidence of specific acts of misconduct by a witness is not generally admissible for impeachment purposes. Hoffman v. State, 514 S.W.2d 248, Tex.Cr.App.; Randolph v. State, 499 S.W.2d 311, Tex.Cr.App. There is an exception to this rule when a witness makes a blanket statement, such as never having been charged or convicted of an offense, or never having been in trouble. Hoffman v. State, supra; Montemayor v. State, 543 S.W.2d 93, 94, Tex.Cr.App.

In Hoffman v. State, supra, the defendant during cross-examination denied that he had had any complaints made against him while he was a park ranger. This Court held that the defendant had opened the door, and that it was not error to elicit evidence about complaints against him which had no relation to the charge in the case.

In Randolph v. State, supra, the defendant, while testifying in his own behalf, made a broad denial that he had ever sold anyone heroin. The State put on witnesses who testified to extraneous sales of heroin by the defendant. This Court held that while we did not necessarily approve of the State’s tactics, the defendant had opened the door and it was not error to admit testimony on the other sales of heroin.

In the instant case, the appellant’s own counsel elicited the denial from the appellant which opened the door for the State to put on the testimony to prove the extraneous offense. No error is shown.

The appellant next complains of the following questions by the prosecutor:

“Q Isn’t it correct Mr. Savoy Eastman came to your place of business and told you where to find your wife and Cicero Watts [the deceased]?
“A No.
“Q And you went directly to that spot?
“A No, sir.”

Specifically, appellant contends that “the State’s Attorney did not receive such information from said Eastman, and such question was not propounded in good faith.”

We first note that the appellant made no objection to the questions when they were asked, and has thus failed to preserve the error. We further note that there is absolutely nothing in the record to substantiate the appellant's claim that the prosecutor did not get the information from Eastman or that the question was asked in bad faith. On such a silent record, bad faith is not shown.

Finally, appellant argues that if none of the errors in his brief alone constitute reversible error, “then an accumulation of the same was reversible error.” Appellant thus points to various rulings of the court which we have herein found not to be reversible error. This ground of error is not in compliance with Art. 40.09, Sec. 9, V.A.C.C.P., and will not be reviewed. Love v. State, 533 S.W.2d 6, Tex.Cr.App.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

      . It is not entirely clear from his brief whether or not the appellant seeks to complain of the overnight separation of the jury in this appeal. The record reflects specifically that he did not make such separation a part of his motion for a new trial. To be a valid ground of error in this Court, the separation needs to be alleged in the motion for new trial so the State may have the opportunity to rebut the presumption' of harm. Green v. State, 510 S.W.2d 919, Tex.Cr.App. If appellant does seek to present such error here for the first time, it has not been properly preserved and will not be considered.

      . We note that in the instant case counsel for the appellant told the trial judge that he did not want the charge to the jury at the punishment stage to include any mention of the fact that the jury was not to consider the possibility of parole in reaching their verdict on punishment. Pursuant to this request, no such instruction was included in the court’s charge. This Court has said that there should always be such an instruction, Moore v. State, 535 S.W.2d 357, Tex.Cr.App.

      . In his brief the appellant quotes this question as follows: “Isn’t it a fact, Lincoln, that Savoy Eastman (or some name similar to Eastman) came to your barber shop and told you that if you wanted to catch Cicero Watts (the deceased) and your wife together to go down a certain country road?” Appellant never refers us to a page number in the record where this statement is to be found. After reviewing the appellant’s testimony we are unable to find the exact language the appellant quotes, but will assume that he is referring to the language quoted in the opinion.