text:
    Gary ETHEREDGE, Appellant, v. The STATE of Texas, Appellee.
    No. 52453.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.
    Arturo C. Gonzalez, Del Rio, for appellant.
    Tully Shahan, Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

The indictment charged appellant with the unlawful delivery of a usable quantity of marihuana of more than one-quarter ounce to D. Bruce Kiser. Appellant pleaded not guilty but the jury found him to be guilty as charged and assessed his punishment at confinement for two and one-half years.

D. Bruce Kiser and Michael J. Morris, policemen employed by the City of San Angelo, were temporarily assigned to a Drug Enforcement Administration “Mobile Task Force” operating in Del Rio during the month of May, 1974. They were operating as undercover agents under the general supervision of DEA Agent Terry Bowen. Kiser and Morris had made the acquaintance of one Thomas Michael Leis and, on May 22, 1974, Kiser asked Leis for some “grass” or “weed”, meaning a usable quantity of marihuana. Leis said that he did not have any but knew where he could get some.

Leis accompanied Kiser and Morris in Kiser’s car to a house on Garfield Street in Del Rio; and, after Kiser had given Leis a twenty-dollar bill, Leis went into the house and returned shortly thereafter with two baggies of what appeared to be marihuana which he delivered to Kiser. As Leis was leaving the house, a man emerged therefrom onto the front porch and lighted a cigarette while standing there talking momentarily to Leis. Kiser and Morris both identified appellant as being the man who emerged from the house.

Leis testified that he went into the house and told appellant that he had a couple of friends who wanted to “score” and that he wanted two “lids” of marihuana. He said that appellant went to the rear of the house and returned immediately with the two baggies which he exchanged for the twenty dollars he had just gotten from Kiser. Leis said that there was no other person in the house during the transaction.

Appellant’s counsel cross-examined Kiser, Morris, and Leis vigorously upon all aspects of the transaction included discrepancies in the testimony given upon the trial and prior written statements made by Kiser and Morris. Counsel also exploited Leis’s misdemeanor conviction arising out of the same transaction.

Appellant, represented at all times by retained counsel, testified that he and his wife had gone to a restaurant upon the day in question to celebrate their wedding anniversary. He denied that he ever sold any marihuana to Leis at any time, although he claimed to have purchased some from Leis upon one or more occasions in the past. Appellant was corroborated in his alibi by his wife.

It was developed that another male lived at the house of appellant on Garfield Street, an airman by the name of McDogal; but appellant testified that he did not know where McDogal was located at the time of the trial.

The substance delivered by Leis to Kiser was properly shown to be marihuana and the usable quantity, according to the chemist, could have been made into approximately 96 cigarettes.

Appellant’s three grounds of error have a common thread: the lack of probative evidence to corroborate the accomplice testimony of Leis or, alternatively, the insufficiency of the corroboration. The first ground relates to the failure of the trial court to respond to appellant’s written objection to the charge, timely filed, that there was no evidence to corroborate the testimony of Leis and thus no competent evidence to raise the issue of appellant’s criminal responsibility for Leis’ conduct.

The Court properly charged that Leis was criminally responsible as a party to an offense either committed by his own conduct or by the conduct of appellant. Leis, having been indicted for the same offense as appellant, was an accomplice as a matter of law. Bentley v. State, 520 S.W.2d 390, 394 (Tex.Cr.App.1975). We set out the substance of the court’s charge on accomplice testimony in the margin.

Appellant’s counsel reminds us that under the statute, Vernon’s Ann.C.C.P., art. 38.14, a person may not be convicted on the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant with the offense committed.” Counsel then argues:

“The essential question in the instant case, which determines both the propriety of the trial court’s instructions and whether Appellant’s conviction may stand, is whether the State provided any, or in the alternative sufficient, evidence to corroborate the testimony of the accomplice witness Leis.”

Appellant has fairly stated the question and, having carefully reviewed the fact structure of the case as well as the applicable authorities, we agree with his conclusion.

The test of the sufficiency of the corroboration of the testimony of an accomplice witness has been set out in the authoritative case of Cherb v. State, 472 S.W.2d 273, 279 (Tex.Cr.App.1971):

“The test of sufficiency of corroboration of the testimony of an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the accused with the commission of the offense. If there is such evidence, the corroboration is sufficient, otherwise it is not.”

In passing upon the contentions now advanced, it is well to bear in mind one well-established rule governing the review of such evidence. It is clear under our prior holdings that in determining the sufficiency of the corroboration of the accomplice witness’s testimony, each case must be considered on its own facts. See O’Donald v. State, 492 S.W.2d 584, 587 (Tex.Cr.App.1973); Forbes v. State, 513 S.W.2d 72, 76 (Tex.Cr.App.1974). In applying this test to the case at bar, we are required to eliminate the testimony of the accomplice, Leis. This leaves for our consideration only the testimony of the two police officers, Bruce D. Kiser and Michael J. Morris. The testimony of these two officers, standing alone, must be sufficient to tend to connect appellant with the commission of the crime in order for his conviction to stand.

It is undisputed that the house at 414 Garfield was the residence of appellant at the time the offense was committed. Officers Kiser and Morris both identified appellant as the man they saw standing on the porch talking with the accomplice Leis on the night in question. Officer Kiser, however, also testified that he saw another person in the house besides the two men standing on the front porch. This other person may have been the McDogal who also lived in appellant’s house at the time in question. In addition, it should be emphasized that neither officer saw Leis hand anything to appellant nor did they see appellant give anything to Leis.

All we have then to corroborate Leis’s testimony is the presence of appellant- and another person at appellant’s own residence shortly before the commission of the crime. Whether one, both or neither of these men supplied Leis with the marihuana is not shown other than by the accomplice Leis’s testimony, which we must ignore for corroboration purposes.

As this court stated in Ayala v. State, 511 S.W.2d 284, 287 (Tex.Cr.App.1974):

“The mere presence of the accused in the company of the accomplice shortly before or after the time of the offense is not, in itself, sufficient corroboration of the testimony of an accomplice. Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311; Roberd v. State, 161 Tex.Cr.R. 188, 276 S.W.2d 270.”

The mere presence of appellant at the house of his residence, without more, is clearly insufficient to tend to connect appellant with the commission of the crime.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . “The witness Thomas Michael Leis is criminally responsible as a party to an offense either committed by his own conduct or by the conduct of the defendant, Gary Etheridge, if any offense was committed, and you cannot convict the defendant upon the testimony of Thomas Michael Leis unless you first believe that his testimony is true and shows that the defendant is guilty as charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said Thomas Michael Leis, tending to connect the defendant with the commission of the offense committed, if you find that an offense was committed and the corroboration is not sufficient if it merely shows the commission of any such offense, but it must tend to connect the defendant with its commission, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him in the indictment herein.”


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52665-52667.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1976.

      Stephen M. Orr, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Lago Vista, Jim D. Vollers, State’s Atty., and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from final judgments forfeiting appearance bonds.

The appellant, a surety on the bonds, asserts there is insufficient evidence to support the judgment because the judgments nisi were not admitted in evidence. A final judgment forfeiting a bail bond must be supported by the judgment nisi. Fears v. State, 500 S.W.2d 815 (Tex.Cr.App.1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973); Morgan v. State, 157 Tex.Cr.R. 117, 247 S.W.2d 94 (1952). The State did not offer in evidence the judgments nisi; the State concedes error.

The judgments are reversed and the causes are remanded.

Opinion approved by the Court.


author: DALLY, Commissioner. ROBERTS, Judge

text:
    Juan VARGAS, Appellant, v. The STATE of Texas, Appellee.
    No. 51385.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      George A. Scharmen, II, Huntsville, for appellant.
    Ted Butler, Dist. Atty., Keith W. Burris and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of possession of heroin; the punishment, which is enhanced by proof of two prior felony convictions, is imprisonment for life.

The appellant asserts the trial court erred in admitting evidence which it is alleged was unlawfully obtained; the appellant also asserts that he was unlawfully arrested.

The record reflects that on September 1, 1974, Officer Frank Garcia responded to a call regarding a “sick party” at a fire station; when he arrived, the appellant was unconscious in an ambulance. Officer Garcia looked for identification and found in appellant’s back pocket a card that appeared to be a subpoena from Municipal Court that bore appellant’s name; after finding the identification, the officer left; the Emergency Medical Service then transported appellant to the Bexar County Hospital emergency room.

In the emergency room, appellant was prepared for examination by Marlene Kue-chele, a registered nurse; she had been advised that the appellant had been tentatively identified as Juan Vargas. Appellant appeared to be conscious, but he was lethargic, sleepy, and had abscesses in his arm. Kuechele asked the appellant if he had taken an overdose of heroin and he failed to respond; the second time she asked, he admitted that he had overdosed. As.required by hospital policy, Kuechele removed appellant’s clothes to inventory and store his property; she stated the purpose of the policy was to prepare patients for examination and for protection of the hospital and the patient’s property. She felt a heavy bulge in appellant’s pocket, reached inside and found a .22 caliber pistol. Pursuant to hospital policy she called for a security officer and told the officers who responded, Tony Valdez and Rita Barriere, that she had found a gun in appellant’s trousers and that he had admitted taking an overdose of heroin. After calling the city police, Officer Barriere, a deputy sheriff with the Bex-ar County Hospital District, looked in appellant’s wallet and confirmed that his name was Juan Vargas.

Officer Garcia, the same officer who had earlier seen appellant in the ambulance, responded to the call from the hospital security officers. Upon his arrival at the hospital Officer Garcia was informed that a gun had been found in appellant’s pants. He took possession of the gun and had the nurse initial it. Officer Barriere and Officer Garcia then searched the rest of appellant’s clothes, finding therein three or five live rounds of ammunition and a yellow balloon containing a substance later identified as the heroin that was admitted in evidence.

There has been no question raised regarding the search for identification conducted in the ambulance upon the unconscious appellant by Officer Garcia. If the heroin-filled balloon had been discovered during the warrantless search of the appellant in the ambulance, the heroin would have been admissible in evidence because a search would have been justified under the “emergency” or “exigent circumstances” doctrine. A search of a person found in an unconscious condition is reasonable and necessary for the purposes of identification and possible discovery of a medical history carried on the person. See Perez v. State, 514 S.W.2d 748 (Tex.Cr.App.1974); Crawford v. State, 163 Tex.Cr.R. 358, 292 S.W.2d 123 (1956).

While the initial examination of appellant’s clothing, which produced the pistol, was conducted by the nurse, the heroin was discovered by the security guards and Officer Garcia. If, upon discovery of the gun, instead of calling the security officer, the nurse had continued her cataloging of appellant’s effects, and subsequently found the heroin-filled balloon, the heroin would have been admissible in evidence. A “search” in which the exclusionary rule may apply is one in which there is a quest for, a looking for, or a seeking out of that which offends against the law by law enforcement personnel or their agents. See Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976); Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973). Appellant was not undressed by, or at the direction of, a police officer. The purpose in the nurse’s undressing appellant and cataloging his effects was not to discover contraband or other illicit property or to obtain evidence to be used against him in criminal action. Therefore, had the nurse discovered the heroin in appellant’s clothes, her purely private action would not have constituted a “search.” See State v. Wooten, 18 N.C.App. 269, 196 S.E.2d 603 (1973); State v. Courtney, 25 N.C.App. 351, 213 S.E.2d 403 (1975).

The United States Supreme Court has approved the practice of securing and inventorying the contents of automobiles in police custody and control, holding that it is not violative of the Fourth Amendment’s prohibition of unreasonable searches and seizures. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 100 (1976). The United States Supreme Court has stated that these “inventory searches” developed in response to three distinct needs: (1) the protection of the owner’s property while it remains in police custody, (2) the protection of the police against claims or disputes over lost or stolen property, and (3) the protection of the police from potential danger. South Dakota v. Opperman, supra. We find the reasoning and policies of these cases to be fully applicable to a case such as the one before us.

The nurse removed and examined appellant’s clothing pursuant to hospital policy which provided that patients awaiting treatment in the emergency room were to be completely disrobed and given a hospital gown to wear. Further, it was the hospital’s policy to inventory and place under lock and key all of a patient’s personal effects, both to protect the patient’s property and to protect the hospital from unwarranted claims stemming from lost or stolen property. The discovery of a pistol in appellant’s pants indicated that the appellant was possibly a dangerous individual and brought into focus the need for the safety and protection of the other patients and the employees of the hospital. The nurse called the security guards who, in turn, called the police. After Officer Garcia arrived and had been given the pistol found in appellant’s pants, he and the security guards continued the inventory of appellant’s personal effects initiated by the nurse.

The appellant contends that the continued inventory of his possessions conducted by security officers Valdez and Barriere and Officer Garcia resulted solely from a suspicion on the part of the officers that the fruits of another crime would be found. Attention is directed to the following exchange:

“[DEFENSE COUNSEL]:
“Q. Then earlier you had stated that you had made a search in order to find the identification at this point?
“[OFFICER BARRIERE]:
“A. Right, at the time we weren’t sure — the nurse had told us who he was but to verify his identification, that’s when we searched the pants, the back pockets, and we found a wallet with his name.
“Q. The wallet was found earlier, was it not?
“A. Yes, it was.
“Q. It was found on the way to the Security Office. You found identification?
“A. Right.
“Q. So, the search which you conducted in front of Officer Garcia, you had stated that this was for identification?
“A. No, I didn’t.
“Q. Now you are saying—
“A. No, I didn’t. The search, the first time was for identification. We had a weapon in our possession; when we later searched again, we searched for other weapons.
“Q. All right, so you actually conducted two searches of his trousers?
“A. Technically, yes.
“Q. All right, and at this time, you had not spoken to the defendant, did you say?
“A. No, not until after we had searched his clothing the second time.
“Q. Did you at any time you were. searching — would it be correct that you suspected you would find something in his pants?
“A. Yes, I did.
“Q. You had a hunch that something would be there that you would find?
“A. I had a hunch he might have something.
“Q. I see, but, you were looking for at this time—
“A. Possibly another weapon.
“Q. Did you have any reason to believe that he might have a weapon?
“A. We had one weapon, there’s a possibility that he could have had another one.”

It would not be realistic to require that in justifying an inventory search the police must affirm that they had absolutely no hopes or expectation of finding contraband or other inculpatory material. An inventory search is reasonable under the requirements of the Fourth Amendment not for the reason that the subjective motives of the police are simplistically pure, but because the facts of the situation indicate that an inventory search is reasonable under the circumstances. See Boulet v. State, 109 Ariz. 433, 511 P.2d 168 (1973). What must be kept in mind is that the Fourth Amendment protects the right of the people to be secure against unreasonable searches and seizures. There is no constitutional protection against a reasonable search and seizure. Inventory searches under proper circumstances have been held to be reasonable. In the instant case, the inventory was initiated pursuant to hospital policy for the protection of the hospital and the appellant’s property. After the gun was discovered, the inventory was continued by the security guards and a police officer for the protection and safety of the hospital’s personnel and other patients. We conclude that the inventory search under the circumstances presented was reasonable. This ground of error is overruled.

Appellant also asserts that he was not lawfully arrested. The record reflects that appellant was not formally arrested until after the heroin-filled balloon was discovered and seized. At the time the heroin was discovered, Officer Garcia had knowledge of facts and circumstances which warranted his belief that the appellant had committed the offense of possession of heroin. Article 14.01, V.A.C.C.P., authorizes a peace officer to arrest an offender without a warrant for any offense committed in his presence or within his view; therefore, Officer Garcia was authorized to arrest the appellant. The heroin which was admitted in evidence, was not seized in a search incident to arrest; since there were no fruits of the arrest, even if the arrest had been unlawful, the heroin admitted would not have been tainted by the alleged unlawful arrest. Vasquez v. State, 532 S.W.2d 338 (Tex.Cr.App.1976); Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974); Gross v. State, 493 S.W.2d 791 (Tex.Cr.App.1973). This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge

(concurring).

I agree that the search was reasonable.

The appellant’s clothes were initially in the custody of Nurse Kuechele; she had an affirmative responsibility to conduct an inventory of this clothing for the physical and legal benefit of the appellant, the hospital staff, and the other patients in the hospital. For this reason, and because the clothes were actually in her custody, the rationale of South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), is applicable. See the dissenting opinion in Robertson v. State, 541 S.W.2d 608, 611—615 (Tex.Cr.App.1976).

This lawful inventory produced tangible evidence that the appellant had committed the offense of unlawfully carrying a handgun, in violation of V.T.C.A., Penal Code, Sec. 46.02. Accordingly, Officer Garcia came to the hospital and made a custodial arrest of the appellant. At that time, the officer had the authority to continue the inventory of appellant’s clothes, not only for the reasons stated in South Dakota v. Opperman, supra, but also because a search of his clothing was justified under the holding of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

      . It is not significant that the officer called this a “constructive” arrest at one point in his testimony. The officer was merely referring to the obvious fact that he would not be taking the appellant to the county jail until the appellant had recovered physically.


author: ONION, Presiding Judge.

text:
    Troy McCARTNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 51565.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Sheehan & Dubuque, on appeal only, Dumas, for appellant.
    Andy Shuval, Sp. Pros., Hereford, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a murder conviction, wherein the jury assessed punishment at fifty (50) years’ confinement in the Department of Corrections.

Appellant urges that the trial court erred in refusing to instruct the jury on the lesser included offense of voluntary manslaughter, and complains there was jury misconduct because of an improper discussion of the parole laws.

The State’s evidence at the guilt stage of the trial reflects that the appellant McCartney and the deceased, Ruby Mae Duck-worth, had been living together “for some time,” and two weeks before the killing the deceased moved into a hotel and separated from the appellant. There was testimony she was going with a Melvin Blair after the separation. Earlier in the afternoon of May 15,1974, the date of the shooting, between 2 and 3 p. m., the evidence reflects that the appellant purchased the .22 calibre pistol with which he subsequently shot the deceased. The owner of the shop who sold the pistol to the appellant testified he appeared to be cool and collected and did not seem nervous or disturbed.

Alfred Combs testified that he first saw the appellant about noon on May 15th, when the appellant sold him an air conditioner for $100.00. At such time appellant did not seem upset or distraught. Combs testified he saw the appellant later in the afternoon in Harry’s Bar in Dalhart. Combs was seated in booth # 2 with Ellie Fanelli when the appellant came in and sat in booth # 1. Fanelli spoke to him, and the appellant said “he was waiting on some broad,” who Combs said had reference to the deceased, Ruby Mae Duckworth. At this point, Fanelli called his attention to the fact the deceased was seated in booth # 3.

Appellant joined the deceased in her booth and Combs heard them “fussing a little.” The deceased stated, “I don’t have to listen to you, you SOB,” and them moved to a bar stool, and the appellant followed her and the “fussing” continued until the bartender told them they had to leave if it continued. The deceased tapped the appellant on the arm, then moved back to a booth. Combs related the appellant remained at the bar for about five minutes, then went to the restroom. A little later, Combs heard a shot and looked up and saw the appellant pointing a pistol at the deceased. There was a second shot, and then Combs rushed to the appellant, got him on the floor and took the pistol away from him. Combs related the deceased just fell over in the booth and appeared to be dead.

Ruby Losacco, bartender at Harry’s Bar, testified she saw the appellant go to the deceased’s booth and heard the appellant tell the deceased he was going to kill her, and the deceased replied, “No, you’re not.” The witness told the appellant to leave the deceased alone and called him aside and told him, “She (deceased) belongs to another man.” The appellant replied, “Well, she has belonged to me for a long time.” Appellant then returned to the deceased and again threatened to shoot her. The witness offered to call the police, but the deceased declined the offer stating, “He is not going to do it.” The appellant stated, “Just step outside ... I will shoot you ... I know right where to put it,” and the deceased said, “Well, I’m going to tell another thing, when I do I’m going to tell them about you forging my name to my withholding return.” The witness told the deceased to go to a booth and she would see that the appellant did not follow her. While it is not altogether clear from the record in what order the events then occurred, it appears that when the deceased went to a booth a Cecil Jobe asked her, “Would Melvin care if I spent three nights with you?” and she answered, “No, I guess not, he never has.” The witness Losacco admonished Jobe that the appellant was not Melvin and not to agitate him. At this time a Warren Jennings stated, “Well, I will sit with you, sweetheart,” and went to the booth where the deceased was. At this point the appellant said, “You might as well take the whole bar with you,” and then laughed. He then went to the restroom. Jennings sat with the deceased for a short time and then went to the restroom as the appellant was coming out of the restroom. Losacco watched him and decided nothing was going to happen and started washing glasses when she heard a shot and then a second, and then rushed to help Combs disarm the appellant.

The cause of death was shown to be a gunshot wound to the chest.

Ellie Fanelli testified for the defense that she thought the deceased was “rather a flirtatious woman,” that the deceased had told her she had been living with the appellant, but shortly before the shooting she had seen the deceased with a Melvin Blair.'

Edna Dooley testified she ran a cafe and that the appellant had worked for her as a back-up cook and as a dishwasher and he was not a man of violence.

The appellant did not testify at the guilt stage of the trial.

Appellant initially contends that the court erred in failing to charge on voluntary manslaughter even if the issue was not raised by the evidence. Appellant notes that Article 1257c, Vernon’s Ann.P.C., 1925, related to instructions on the issue of murder without malice and provided that in cases “where the facts present the issue of murder without malice” the jury was to be instructed thereon “and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.” He argues that this Article has now been repealed and that neither V.T.C.A., Penal Code, § 19.02 (murder) nor § 19.04 (Voluntary Manslaughter) make any similar provision requiring the issue of voluntary manslaughter to be submitted if raised by the evidence. He reasons that the Legislature by expressly excluding such procedural requirement in the definition of murder or voluntary manslaughter meant the issue of voluntary manslaughter must be submitted in any murder case where requested even if the issue is not raised by the evidence. We reject outright any such contention. We find nothing in appellant’s argument to support the fact that the legislative intent was what he claimed it to be.

Appellant next argues that, even if the issue must be raised by the evidence before it need be submitted to the jury, it was in fact raised by the evidence in the instant case.

V.T.C.A., Penal Code, § 19.04 (Voluntary Manslaughter), provides:

“(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
“(b) ‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
“(c) ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
“(d) An offense under this section is a felony of the second degree.”

It is noted that the term “adequate cause” was brought forward from former Article 1257c, supra, and that “sudden passion,” undefined in the former statute, is now statutorily defined following the general trend of the case law. See 2 Branch’s Ann.P.C., 3rd Ed., § 19.04 (Explanatory Comment), p. 21.

As a result of its historical background, the Practice Commentary to V.T.C.A., Penal Code, § 19.05, is pertinent since it also deals with said § 19.04.

The commentary reads in part:

“Sections 19.04 and 19.05 restore manslaughter to the Texas criminal homicide lexicon. Before 1927 Penal Code arts. 1244 to 1255 defined manslaughter substantially in terms of the common law’s voluntary manslaughter, i. e., an unlawful, willful killing on legal provocation. Common-law involuntary manslaughter, an unlawful negligent killing, was preserved in substance in arts. 1230 to 1243 (negligent homicide). The 1927 Murder Act repealed arts. 1244 to 1255, replacing voluntary manslaughter with the concept of murder without malice, art. 1257c, but the negligent homicide articles, 1230 to 1243, were expressly saved from repeal.
“Sections 19.04 and 19.05 are an interesting blend of the old and new. Section 19.04 is basically the 1856 definition of (voluntary) manslaughter, without, however, that first code’s enumeration of what was and was not adequate cause. See Penal Code arts. 594 to 597 (1856). As noted, these articles became 1244 to 1246 in the 1925 code but were repealed in 1927. The analogue to common-law involuntary manslaughter is preserved in Section 19.05, but its immediate ancestor is neither the common law nor its Texas offspring but the Model Penal Code. Section 19.05(a)(2) traces its lineage both to the common law (the misdemeanor-manslaughter doctrine) and to the modern legislative judgment that driving while intoxicated is recklessness per se.
“A killing that otherwise would be murder is reduced to voluntary manslaughter under Section 19.04 if it occurred while the actor was under the ‘immediate influence’ of a ‘sudden passion’ arising from ‘adequate cause.’ The quoted words were all lifted from art. 594 of the 1856 code (art. 1244 of the 1925 code) and all were brought forward into prior art. 1257c to define murder without malice as part of the 1927 Murder Act. ‘Immediate influence’ appears redundant with the general cause-and-effect requirement and with Subsection (b)’s requirement that the passion arise at the time of the offense; this may explain why the courts have rarely discussed it. ‘Sudden passion’ and ‘adequate cause’ have been the subject of judicial interpretation since the 1856 code took effect, however.
“It was clear that sudden passion could be produced by conduct other than the victim’s, the court in Garcia v. State [70 Tex.Cr.R. 485], 156 S.W. 939 (Cr.App.1913), for example, holding that the provocation of one acting together with the victim qualified as legal provocation. Subsection (b) incorporates this and similar holdings with the phrase ‘another acting with the person killed.’
“The time element of the sudden passion definition has produced the most appellate litigation because it purportedly limits the time span to the time of the offense. Texas courts wasted no time in modifying the definition’s literal language, however, with the statement below representing a typical example.
“We are aware that our statute says that the provocation must arise at the time of the homicide, and must not be the result of a former provocation; yet, in our opinion, the statute evidently includes such provocation as constitutes a part of the res gestae, or is so near in point of time to the homicide as to allow the mind of a person of ordinary temper, which has become excited by some previous provocation, to become cool and composed before the act of killing. What is sufficient cooling time is a matter of fact, and must be judged by the circumstances attending each particular case. The time in which the mind of an ordinary man, under like circumstances, would have cooled, is a reasonable time. But in every proper case this matter should be submitted by the court to the jury in appropriate instructions. .
Thomas v. State [42 Tex.Cr.R. 386], 56 S.W. 70, 71 (Cr.App.1900). See also Miles v. State, 18 Ct.App. 156, 170 (1885).
“Long before the enactment of Penal Code art. 1257a (now Section 19.06), the courts allowed in evidence everything relevant to the actor’s state of mind and the Court of Criminal Appeals regularly found fault with jury charges limiting consideration solely to provocation at the time of killing, see, e. g., Johnson v. State [63 Tex.Cr.R. 50], 138 S.W. 1021 (Cr.App.1911) (nearly two weeks between first and fatal provocation); Mundine v. State [37 Tex.Cr.R. 5], 38 S.W. 619 (Cr.App.1897) (overnight). On the other hand, if the ‘former provocation’ did not in fact provoke the killing, it was not charged but was nevertheless admissible in evidence, e. g., Bell v. State [85 Tex.Cr.R. 475], 213 S.W. 647 (Cr.App.1919); Rodgers v. State [85 Tex.Cr.R. 338], 212 S.W. 166 (Cr.App.1919); Willis v. State [74 Tex.Cr.R. 16], 166 S.W. 1172 (Cr.App.1914). (See also the commentary on Section 19.06 for discussion of the evidence issue.)
“As noted the former manslaughter articles partially enumerated what was and was not adequate cause as a matter of law, e. g., fighting words alone were not unless they insulted a female (arts. 1247, 1248), assault causing pain or bloodshed was (art. 1248). After the 1927 Murder Act repealed these articles, the courts held that a jury charge on adequate cause was limited to the statutory definition in prior art. 1257c, Hettich v. State [130 Tex.Cr.R. 580], 95 S.W.2d 113 (Cr.App.1936); Mosely [Mosley] v. State [149 Tex.Cr.R. 523], 196 S.W.2d 822 (Cr.App.1946) (identifying causes as adequate or inadequate in charge would constitute comment on weight of evidence).
“The definition of adequate cause in Section 19.04(c) is both objective and subjective. It is objective because it views the alleged provocation through the eyes of the ordinary man; it is subjective because the fact-finder must view from the actor’s standpoint in order to determine ‘the condition of the mind of the accused at the time of the offense,’ which is necessitated by the mens rea requirement and emphasized by Section 19.06, from which the quoted phrase is taken. The only Texas case found that alluded to the objective-subjective nature of the adequate cause definition, Zimmerman v. State [85 Tex.Cr.R. 630], 215 S.W. 101 (Cr.App.1919), affirmed that it is the ordinary man’s response to the alleged provocation that is material, not the epileptic defendant’s, but that the jury must place the ordinary man in the defendant’s situation. (Zimmerman is unsatisfactory on this issue because the main defense was insanity, defendant at trial did not request a charge on his epileptic condition as bearing on the adequate cause issue, and only on appeal did he raise the issue, apparently as an afterthought. Most jurisdictions have applied the common-law’s ordinary man test, however, thus ruling out conditions peculiar to the individual defendant that arguably made him easier to provoke. See Model Penal Code § 201.3, Comment at 47 (Tent. Draft No. 9, 1959).) . .

As the Practice Commentary notes, said § 19.04 is a blend of the old and the new, and cases decided under former Article 1257c, as enacted in 1927, and those decided earlier under the former manslaughter statute are instructive in deciding the case before us.

An instruction on manslaughter is properly refused where there is no evidence whatever of adequate cause. Hill v. State, 11 Tex.App. 456 (1882). And it was well established under former Article 1257c that it was not error to fail to instruct on the issue of murder without malice unless there was some testimony raising the issue. Garza v. State, 479 S.W.2d 294 (Tex.Cr.App.1972); David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970); Lucky v. State, 495 S.W.2d 919 (Tex.Cr.App.1973), and cases there cited; Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974); 29 Tex.Jur.2d, Homicide, § 279, p. 514.

Here, the appellant had been living with the deceased but had been separated for two weeks. On the date in question he sells an air conditioner and buys a pistol, at which time he appears cool and collected. He goes to a bar looking for the deceased. He engages her in argument and threatens to kill her. He follows her from the booth to a bar stool after she tried to discontinue the argument. He continues to argue with her and she finally goes back to a booth. After remarks by other men, he tells her to take the whole bar with her and laughs. He goes to the restroom and five minutes later returns and shoots the deceased.

It is true that there may have been provocation by Jobe and Jennings, but this cannot be considered unless they were acting together with the deceased. V.T.C.A., Penal Code, § 19.04(a).

In light of the record, we cannot conclude the evidence was sufficient to raise the issue of voluntary manslaughter, and the court did not err in failing to submit such issue to the jury.

Next appellant complains the trial court erred in failing to grant appellant’s motion for new trial as the jury received other evidence after it began its deliberations.

Anita Richardson testified on the hearing on the motion for new trial that she was one of the jurors and that the foreman was Bobby Joe McMurray and the only man on the jury. She related that in the first vote following the penalty stage of the trial some jurors had voted for as little as five years and others as high as 99 years. She stated the foreman had then stated that if the appellant was given five years he would be out in nine months and probably wouldn’t even go to the pen when given jail time credit. He also stated that if given 50 years he would be out on parole in 10 to 15 years. Richardson stated the foreman was admonished not to discuss parole in keeping with the court’s instruction, but he stated it was something to keep in mind and “it was something we had to consider because it was a fact.” Richardson admitted that the foreman did not purport to know the law regarding parole, but he was the only man on the jury and had told the jurors he had had previous jury service. In the five ballots taken, she testified she voted for five years the first two times and then for 10 years, for 25 years and finally for 50 years. She related she changed her vote from lesser punishment to 50 years after the foreman’s remarks as she was influenced by his statements on parole.

Carol Artz, also a juror, testified the foreman stated appellant would be out in nine months if given five years and might not even go to the pen, that if the appellant was given 50 years he would be out on parole in 5, 10 or 15 years. She recalled he was admonished about his discussion, but had stated, “We still have to keep that in mind.” She acknowledged that he never purported to know the law, but spoke with authority and “as if he knew what he was talking about.” She stated she thought the appellant would only serve five years if she voted for 50 years and changed her vote.

Bobby Joe McMurray testified there was a discussion of parole laws, but he couldn’t recall the figures mentioned and stated that no one purported to know the law, and he certainly didn’t. He expressly denied the statements attributed to him regarding how long the appellant would serve if given 5 years or 50 years. He stated he had voted for 50 years on each ballot and was not influenced by any discussion of parole.

His wife, Lois McMurray, also a juror, testified that she could not remember any discussion of parole at all and couldn’t recall her husband or any other juror making the statements attributed to him. She stated she voted for 50 years on each ballot.

Ruth Phillips, a juror, testified parole was mentioned, but she didn’t recall any figures. She stated release on parole was a matter of common knowledge and it didn’t influence her at all. No one mentioning parole purported to know the law according to her testimony. She related she first voted for 30 years and then later for 50 years.

Clara Kennedy testified there may have been some talk of parole, but she didn’t remember exactly what was said because it didn’t influence her. She stated she first voted for 25 years and later voted for 50 years.

Mrs. A. M. Marshall stated no one purported to know the law on parole, and while there was “quite bit of discussion about parole,” it didn’t influence her as she voted for 50 years on all ballots.

Maudie Lacy also stayed with 50 years on all ballots and stated the parole discussion did not influence her. She did recall “the five years — out in nine months” statement by the foreman, but did not remember any other statement he made on parole.

Mrs. Cliff Marshall testified there was “a little discussion” on parole but she didn’t recall the details, but no one purported to know the law; that she was not influenced thereby as she made up her own mind on the 50 years’ punishment.

Mrs. Austin McCowan testified parole was mentioned, but no one purported to know the law and she didn’t remember the details of the discussion. She testified she was not influenced thereby. She voted for 99 years the first time, later for 60 years and then for 50 years.

Mrs. James E. Smith remembered the foreman saying something about parole and his being admonished, etc., but she couldn’t remember for sure the figures mentioned and such discussion didn’t influence her; that no one purported to know the law. She related she voted for 50 years on every ballot.

Mrs. George Reeves could not recall what the foreman said about parole, but that no one purported to know the law. She related the discussion didn’t influence her. She voted first for 40 years and then later for 50 years.

It is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole. See, e. g., Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967); Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968); Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975). And not every mention of parole during jury deliberations calls for reversal. Daniel v. State, 486 S.W.2d 944, 946 (Tex.Cr.App.1972).

In the instant case eleven of the jurors admitted parole laws had been discussed, but testimony varied from “mentioned” and “a little discussion” to “quite a bit of discussion.” As to supposed misstatements as to the parole law, only jurors Richardson, Artz and Lacy testified that such misstatements were made by the foreman. The foreman McMurray created a sharp conflict by denying that he made such statements. His wife in effect helped to corroborate his testimony.

The trial judge, as the trier of the facts, was free to believe one juror’s testimony as to the absence of improper conduct in the jury room and to disbelieve and reject all or part of the testimony of the other jurors. See Daniel v. State, supra, and cases there cited. 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, and where there is conflicting evidence there is no abuse of discretion where the motion for new trial is overruled. See McMillon v. State, 505 S.W.2d 872 (Tex.Cr.App.1974); Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Walton v. State, 398 S.W.2d 555 (Tex.Cr.App.1966); Roberts v. State, 172 Tex.Cr.R. 500, 360 S.W.2d 883 (1962), cert. denied, 371 U.S. 846, 83 S.Ct. 83, 9 L.Ed.2d 83; McGee v. State, 121 Tex.Cr.R. 188, 51 S.W.2d 714 (1932).

In Trevino v. State, 409 S.W.2d 853 (Tex.Cr.App.1966), it was held that the refusal to grant a new trial sought on the ground that a juror made a statement that if the defendant received a 30 year sentence for possession of marihuana he would be out in 8 years was binding on this court where there was a conflict in the testimony as to whether the statement was made. And in Surratt v. State, 117 Tex.Cr.R. 313, 35 S.W.2d 725 (1931), it was held that where a juror testifies to misconduct and several other jurors assert the contrary the court’s decision negativing misconduct is not an abuse of discretion.

In light of the conflicting evidence as to whether the statements were made, there was no abuse of discretion in the court overruling the motion for mistrial.

The judgment is affirmed.

      . The appellant did not testify at the guilt stage of the trial. At the penalty stage he testified he was 50 years old and had never been married. He related that on September 3, 1973, the deceased knocked on his door, that he had known her as a neighbor a year previous to that and she and her husband had separated. She told him she was hungry and he let her come in. He related that after that they started living together.

      . The witness Losacco explained later she meant Duckworth, the deceased’s husband.


text:
    Billy Richard ROLLINS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51693, 51694.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Charles Mays, Jr., Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vol-lers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from convictions for the offense of aggravated assault. The punishment enhanced by prior convictions is in each case imprisonment for 14 years.

The appellant complains that the evidence is not sufficient to sustain the conviction, that the court erroneously admitted evidence of extraneous offenses, and that the court failed to submit an instruction limiting the jury’s consideration of the extraneous offenses.

The appellant hit Clarence Lee Miller on the shoulder with a handgun, and he hit and kicked Gregory Allen Rosen in the face and stomach. Miller’s shoulder was broken; it required surgery and the insertion of a pin. Rosen suffered a broken nose and internal bleeding; he was in the hospital for 8 days. We find the evidence is sufficient to support the conviction; the court did not, as the appellant insists, err in failing to instruct the jury to find the appellant not guilty.

The appellant’s complaint that the court admitted evidence of extraneous offenses is without merit. On direct examination the appellant was asked “if [he] ever — if [he] had any problems with the law in the past?” He answered that he had been granted probation for giving “hot checks” and that probation was later revoked because he could not make restitution. He also testified that as a result of an attack on some officers who had stopped him for a traffic offense he “got a probation and a $250 fine.” The appellant then testified he had no other “problems — of a serious nature with the law” until this offense. Then without objection on cross-examination he testified that he had been “A.W.O.L. in the Navy;” that he had had a problem which resulted in convictions for passing “hot checks” and aggravated assault on a police officer.

Thereafter over objection the prosecutor was permitted to ask the appellant if about two months prior to the instant offense he had been charged with the commission of an aggravated assault in Dallas. The appellant had testified that he had not had any trouble with the law except in the matters to which he had previously testified. The trial court properly permitted this cross-examination of which complaint is made to rebut the appellant’s blanket assertion that he had not had any other trouble with the law. See Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.1974), and the cases there cited.

There was no request that the evidence of the extraneous offense be limited; therefore no error is shown. See Arts. 36.14 and 36.15, V.A.C.C.P.; Turner v. State, 497 S.W.2d 593 (Tex.Cr.App.1973).

There is another matter we must review under the provisions of Art. 40.09, Sec. 13, Y.A.C.C.P., requiring that we review unassigned error which should be reviewed in the interest of justice. Both convictions here obtained were enhanced by the same prior felony conviction. It was held in Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App.1975) that the same prior felony conviction could not be used to twice enhance punishment under the provisions of V.T.C.A. Penal Code, Sec. 12.42(c). See also Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975) holding that the same prior convictions cannot be used twice to enhance punishment under the provisions of V.T.C.A. Penal Code, Sec. 12.42(d).

The judgment in Cause Number 51,693 is affirmed.

Since the punishment in Cause Number 51,693 was enhanced by the same prior conviction used for enhancement in Cause Number 51,694 and the punishment assessed by a jury was 14 years, the judgment in Cause Number 51,694 is reversed and the cause is remanded.

Opinion approved by the Court.


author: ODOM, Judge. ONION, Presiding Judge DOUGLAS, Judge

text:
    Dewitt T. BLOUNT, Appellant, v. The STATE of Texas, Appellee.
    No. 51788.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Dist. Atty., and Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed at twenty-five years.

The sole ground of error challenges the sufficiency of the evidence to show that the rape was aggravated, V.T.C.A. Penal Code Sec. 21.03. Appellant makes no contention that the evidence would have been insufficient to support a conviction for rape, V.T.C.A. Penal Code Sec. 21.02, but contends only that there was no evidence that he “eompel[led] submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone,” V.T.C.A. Penal Code Sec. 21.-03(a)(2), as alleged in the indictment and as included in the trial court’s charge.

The record reflects that on the afternoon of November 13, 1974, two unarmed men, including appellant, forced their way into the house trailer of the prosecutrix, who was alone at the time.

The prosecutrix was a deaf-mute. With the aid of an interpreter skilled in sign language, she testified that the men dragged her along the floor through the bathroom and into the bedroom. She suffered a bruise on one arm as a result.

Appellant then undressed her while his partner held her down on a bed by her neck and shoulder with a pillow on her head. Both men engaged in sexual intercourse with her and then departed.

The only testimony of the prosecutrix as to her state of mind during these events was that she was “shocked” and “couldn’t think.”

The only evidence as to force or threats other than that recited is the following:

“Q. [by the prosecutor]: At the time while this was happening did one of them get a knife that belonged to your husband?
“A. [by the prosecutrix, with the aid of an interpreter]: She said yes.
“Q. Did he threaten you with it?
“A. No. She said no.
“Q. What did he do with it?
“A. The way I understand it the man said almost and she said no.
“Q. Did one of them tell you that if you told they would come back and kill you?
“A. Yes.”

Thus, the only threatened death was conditional and at some indefinite time in the future. This threat was insufficient to satisfy the requirement of the statute that the threat be imminent. As stated in the practice commentary to Sec. 21.03:

“Note that the threatened harm of Subsection (a)(1) [sic] must be ‘imminent;’ hence a threat to harm someone at an indeterminate time in the future does not aggravate.”

See also Zamora v. State, Tex.Cr.App., 449 S.W.2d 43; Diggles v. State, 99 Tex.Cr.R. 288, 269 S.W. 88.

Hence, the conviction can stand only if there was sufficient proof of a threat of imminent infliction of serious bodily injury, which is defined in V.T.C.A. Penal Code Sec. 1.07(a)(34) as follows:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

A threat can be communicated by action or conduct as well as words. Most v. State, Tex.Cr.App., 386 S.W.2d 537; May v. State, 172 Tex.Cr.R. 490, 358 S.W.2d 379. In the instant case, however, there was no evidence of any threat by any means that rose to the level of the quoted statutory definition. No weapons were used; the prosecutrix was not mistreated to the extent that serious bodily injury might have resulted, and no verbal or written threats of such nature were communicated.

It is necessary, therefore, that the judgment be reversed. See Zamora v. State, supra; May v. State, supra; cf. Banks v. State, 530 S.W.2d 940; Twomey v. State, 520 S.W.2d 784; Lewis v. State, 503 S.W.2d 806; DeVonish v. State, 500 S.W.2d 800; Broadway v. State, 418 S.W.2d 679; Most v. State, supra.

We iterate that the evidence would have been sufficient to support a conviction for rape under Sec. 21.02, which apparently is what the dissent also finds. The dissent, however, does not contest our finding that what threats were made were not imminent threats of death or of serious bodily injury. The dissent filed makes no assertion not made by this majority nor does it find any fact proven that we have held not proven. It is a dissent without reason that would abolish the distinction between rape (Sec. 21.02) and aggravated rape (Sec. 21.03), and ignore the legislative mandate that two distinct offenses be defined in those provisions. The lesser included offense which this record shows appellant to have committed was not even submitted to the jury. Yet the dissent, on proof of guilt for simple rape, would hold appellant guilty of a different and more serious offense for which there was insufficient evidence.

The judgment is reversed and the cause remanded.

ONION, Presiding Judge

(concurring).

The dissenting opinion asserts that the appellant and his companion exhibited a knife during the incident. Since this is at odds with the majority opinion, I have carefully examined the record, page by page, line by line, and I find no place where the evidence reflects any knife was exhibited to the prosecutrix thereby causing her to submit. The only testimony as to a knife is that quoted in full in the majority opinion. The prosecutrix testified that one of the men got a knife that belonged to her husband, but she expressly testified that “he” did not threaten her with the knife. The members of this court may disagree as to the law, but we should never disagree on what facts are reflected in the appellate record before us.

In reviewing the sufficiency of the evidence to sustain a conviction, we must view the same in the light most favorable to the jury’s verdict.

The appellant was not simply charged with rape, but was charged with aggravated rape under the second mode of V.T. C.A., Penal Code, Sec. 21.03. Omitting the formal parts, the indictment charged that on or about November 13, 1974, the appellant “did then and there knowingly and intentionally by force and threats have sexual intercourse with E— B — , a female not his wife without her consent, and did intentionally and knowingly compel the said E_B_to submit to such act of sexual intercourse by threatening the imminent infliction of death or serious bodily injury to the said E_B'_"

The court’s charge to the jury submitted aggravated rape in the second mode as alleged in the indictment, defining “serious bodily injury” as meaning “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” See V.T.C.A., Penal Code, Section 1.07(a)(34).

The jury found the appellant “guilty as charged in the indictment.”

Turning to the sufficiency of the evidence to sustain the verdict, it is observed that the difficulty with the case is that the crucial testimony came from the prosecutrix, who is a deaf mute, whose testimony was received through the use of an interpreter. In view of the record, it is clear that the interpreter, in the manner of repeating the witness’ answers, etc., was not an experienced courtroom interpreter for deaf mutes. Perhaps because of this or for other reasons the prosecutors did not press for clarification when the answers as to crucial questions were unclear. In jury argument one prosecutor stated it was the first time he had been through the process of receiving testimony from a person with the prosecu-trix’s physical handicap and said, “I know it is not an easy thing for you to understand exactly what was said because I had trouble myself.” One of the defense counsel stated in his jury argument that the interpreter had his back to him and he couldn’t hear all the answers of the prosecutrix. We, of course, must be guided by the record before us, approved without objections.

The essentia] facts are stated in the majority opinion and need not be repeated here. It must be determined, of course, if the requirements of the second mode of aggravated rape as provided by V.T.C.A., Penal Code, Section 21.03, were shown. See footnote # 1. First it is observed that submission by threat of kidnapping was neither alleged nor proved, so it need not be considered. The indictment alleged that the rape became aggravated by threat of death or serious bodily injury to be imminently inflicted on the prosecutrix. Does the evidence show such a threat? I think not.

First it is observed that the record reflects that on direct examination of the prosecutrix the following occurred:

“Q. Did one of them tell you that if you told they would come back and kill you?
“A. Yes.”

Just when this threat was made in the course of events is not established by the record. Further, it is not shown how it was communicated to the prosecutrix. The record reflects that soon after the entry into the mobile home the appellant and his companion learned that the prosecutrix could not communicate except by writing, and a number of notes were exchanged and later introduced into evidence. Among them was no threat to return and kill her if she told what occurred. Thus, just how this threat was communicated to her is left unclear from the record before us. Was this a threat of death to be imminently inflicted on the prosecutrix as alleged so as to compel submission to rape? In the “Explanatory Comment” to V.T.C.A., Penal Code, Section 21.03, found in 2 Branch’s Anno. Penal Statute, 3rd ed., p. 95, it is stated: “That the threatened harm must be ‘imminent’ is new to the existing statutory definition of threats; hence a threat to do harm at an indeterminate future will not suffice for the offense of aggravated rape. Also new is the incorporation of the threat of kidnapping along with threats of death or serious bodily injury.” Also as observed in the majority opinion the Practice Commentary to said Section 21.03 notes that the threatened harm must be “imminent” and that a threat to harm someone at an indeterminate time in the future does not aggravate.

Therefore, we must eliminate the fact that appellant and his companion may have told the prosecutrix, by whatever means, that they would come back and kill her as that type of threat is not sufficient under the statute as drafted by the Legislature to justify aggravated rape.

Looking to the evidence as to the knife erroneously relied upon by the dissent, we note, as we did earlier, the prosecutrix’s testimony that though one of the men got or discovered her husband’s knife “he” did not threaten her with it. Such evidence is not sufficient to sustain a conviction under the second mode of Y.T.C.A., Penal Code, Section 21.03.

It is also observed that there was evidence that appellant’s companion placed a pillow over the prosecutrix’s head prior to the rape and she tried to get it off. Just in what manner the pillow was applied was not described nor how long it was held on her head, or whether it prevented her from breathing, etc., was not shown. While a threat can be communicated by action or conduct, as well as verbally, Most v. State, 386 S.W.2d 537 (Tex.Cr.App.1965), the evidence here as the use of the pillow was not sufficiently developed to satisfy the requirements of V.T.C.A., Penal Code, Section 21.03, under which appellant was charged and convicted.

Considering the evidence in the light most favorable to the jury’s verdict, I must conclude that the majority opinion is correct and that the dissenting opinion is not quite accurate as to what this record reflects.

I concur for the reasons stated.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction on the grounds that no proof of a threat was made. The prosecutrix was deaf. Appellant and another entered her trailer house and both of them raped her. Appellant made her commit oral sodomy upon him. During the incident the rapists exhibited a knife. She testified as follows:

“Q. [by the prosecutor]: At the time while this was happening did one of them get a knife that belonged to your husband?
“A. [by the prosecutrix, with the aid of an interpreter]: She said yes.
“Q. Did he threaten you with it?
“A. No. She said no.
“Q. What did he do with it?
“A. The way I understand it the man said almost and she said no.
“Q. Did one of them tell you that if you told they would come back and kill you?
“A. Yes.”

For a woman who could not hear, this is sufficient proof of a threat. It is the belief of the writer that the exhibition of a knife while “this was happening” is a threat. Does the majority require that a written communication be shown to a deaf woman to constitute a threat under the statute?

The judgment should be affirmed.

GUPTON, J., joins in this dissent.

      . We note that the charge also authorized the jury to find appellant guilty if it found that he had caused serious bodily injury to the prose-cutrix, see V.T.C.A. Penal Code Sec. 21.-03(a)(1). This aggravating factor was neither alleged in the indictment nor, as conceded by all, supported by a scintilla of evidence at trial. The inclusion of this portion of the charge was error. See Dowden v. State, 537 S.W.2d 5 (1976).

      . The proper subsection is (a)(2).

      . V.T.C.A., Penal Code, Section 21.03 (Aggravated Rape) provides:
      “(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code or rape of a child as defined in Section 21.09 of this code and he:
      “(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
      “(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.
      “(b) An offense under this section is a felony of the first degree.”

      . It is observed that in jury argument one prosecutor stated in opening argument: “At one point he put his hand over on a knife on the dresser.” In closing argument another prosecutor argued: “. . . and a man putting his hand on a knife and a man saying I will kill you if you tell anybody . . . These arguments were made without objection, but there is no evidence in the record to support such arguments. The prosecutors may have known this, but they did not prove this.


text:
    Ex parte Michael Ray HARRELL.
    No. 52166.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Art Keinarth, Staff Counsel for Inmates, Huntsville, for appellant.
    Henry Wade, Dist. Atty. and Jerome L. Croston, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P. Upon application to the convicting court, it was concluded that petitioner was not entitled to relief.

On July 2, 1975, the petitioner was convicted by virtue of two indictments, each charging the offense of unlawfully, knowingly and intentionally possessing a criminal instrument, namely, a forged prescription, with intent to use it in the commission of obtaining possession of a controlled substance. The offenses were alleged to have occurred on or about May 6, 1975, and on or about May 31,1975. The convictions resulted from guilty pleas, and punishment was assessed at eight (8) years in each case to run concurrently. No appeals were taken.

In his habeas corpus application petitioner contends he was convicted of third degree felonies under the provisions of V.T. C.A., Penal Code, Sec. 16.01, for possessing a criminal instrument, a forged prescription, with the intent to use it in the commission of an offense when he should have been charged in each case under V.T.C.A., Penal Code, Sec. 32.21 (Forgery), as a Class A misdemeanor. He contends that the special statute (Sec. 32.21) controls over the general statute (Sec. 16.01), and that the district court where the convictions occurred did not have jurisdiction and the convictions are void.

Y.T.C.A., Penal Code, Sec. 16.01 (Unlawful Use of a Criminal Instrument), as enacted as part of the 1973 Penal Code and in effect at the time of petitioner’s convictions reads:

“(a) A person commits an offense if:
“(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or
“(2) with knowledge of its character and with intent to use or aid or permit another to use in the commission of an offense, he manufactures, adapts, sells, installs, or set up a criminal instrument.
“(b) For purposes of this section, ‘criminal instrument’ means anything that is specially designed, made, or adapted for the commission of an offense.
“(c) An offense under this section is a felony of the third degree.”

The Practice Commentary to said Section 16.01 contains this observation:

u * * *
“As drafted, the offense covers some things the possession of which is made an offense elsewhere in the code. See, e. g., Sections 32.21 (possession of forged instrument); 47.06, 47.07 (possession of gambling equipment and paraphernalia). The 1970 proposed code would have avoided that duplication by limiting the definition of ‘criminal instrument’ to things ‘the possession, manufacture, or sale of which is not otherwise an offense.’
“The punishment under Section 16.01 is inordinately high for an offense that attaches so early in the criminal design. Indeed, it is greater than the punishment for the object offense in some instances. For example, forgery of some instruments is a Class A misdemeanor under Section 32.21(c), but possession of equipment specially designed to forge those instruments is, under this section, a third-degree felony. Rational grading of punishments, one of the principal objects of the new code, would have been better served by a misdemeanor punishment or by stepping the offense down a grade or two below the object offense as the attempt and conspiracy offenses do, see sections 15.01 and 15.02.”

V.T.C.A., Penal Code, Sec. 32.21, enacted also as a part of the 1973 Penal Code, reads:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
“(iii) to be a copy of an original when no such original existed;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
“(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.
“(2) ‘Writing’ includes:
“(A) printing or any other method of recording information;
“(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
“(C) symbols of value, right, privilege, or identification.
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.
“(c) Except as provided in Subsections (d) and (e) of this section an offense under this section is a Class A misdemeanor. “(d) An offense under this section is a felony of the third degree if the writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check or similar sight order for payment of money, contract, release, or other commercial instrument.
“(e) An offense under this section is a felony of the second degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments issued by a state or national government or by a subdivision of either, or part of an issue of stock, bonds, or other instruments representing interests in or claims against another person.”

It is evident that petitioner could have been convicted of forgery in each case under Section 32.21(a)(1)(C) — possession of a writing with intent to utter it.

Thus, we are confronted with two statutes that deal with the same subject matter insofar as the forged prescriptions are here concerned.

In 53 Tex.Jur.2d, Statutes, Sec. 186 (Statutes in pari materia), p. 280, it is written:

“It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature.
“In order to arrive at a proper construction of a statute, and determine the exact legislative intent, all acts and parts of acts in pari materia will, therefore, be taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.
“The purpose of the in pari materia rule of construction is to carry out the full legislative intent, by giving effect to all laws and provisions bearing on the same subject. The rule proceeds on the supposition that several statutes relating to one subject are governed by one spirit and policy, and are intended to be consistent and harmonious in their several parts and provisions. Thus, it applies where one statute deals with a subject in .comprehensive terms and another deals with a portion of the same subject in a more definite way. But where a general statute and a more detailed enactment are in conflict, the latter will prevail, regardless of whether it was passed prior or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling. And, the rule is not applicable to enactments that cover different situations and that were apparently not intended to be considered together.”

And the rule discussed above applies with peculiar force to acts passed at the same session of the legislature, and even with greater force to acts passed at the same time. 53 Tex.Jur.2d, Statutes, Sec. 188, p. 286. Here, we are confronted with two sections of a Penal Code enacted in one bill. It is presumed that contemporaneous statutes are actuated by the same policy and imbued with the same spirit and should be read together and harmonized and each upheld unless their provisions are absolutely repugnant. 53 Tex.Jur.2d, Statutes, Sec. 188, p. 286.

Article 5429b-2, Sec. 3.06, Vernon’s Ann. C.S. (Code of Construction Act), also provides:

“If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to .the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”

That this statute is applicable to criminal cases cannot be questioned for a number of reasons, but particularly because of the terms of V.T.C.A., Penal Code, Sec. 1.05(b), which provides:

“Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05, and 3.01 through 3.12 of the Code Construction Act (Article 5429b-2, Vernon’s Texas Civil Statutes) apply to the construction of this code.” (Emphasis Supplied)

In Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975), the motion for continuance in a criminal case was accompanied by an affidavit of the defendant’s counsel, who was an attorney-legislator who sought a legislative continuance under the terms of Article 2168, Vernon’s Ann.C.S., but it was not sworn to by the defendant as required by Article 29.08, Vernon’s Ann.C.C.P. The court held that where a special statute and general statute relate to the same subject matter the special will control as to the extent of any conflict. Thus, it was held that the failure to grant the continuance was error since the special statute (Article 2168, Vernon’s Ann.C.S.) governed over the general statute (Article 29.08, Vernon’s Ann.C.C.P.) in limited situations where an attorney-legislator applied for a continuance for his client.

In Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974), the defendant was convicted and punished under the provisions of Article 802c, Vernon’s Ann.P.C., 1925 (murder by automobile while intoxicated). On appeal he contended the jury should have been instructed as to penalty under a later enacted statute — Article 6701d, Sec. 50A(a), (b), Vernon’s Ann.C.S. This statute provided that whoever unlawfully and unintentionally (with a conscious disregard for the rights of others) shall cause the death of another person while engaged in violation of any State law or municipal ordinance applying to the operation or use of a vehicle, etc., or regulation of traffic shall be guilty of homicide when the violation is the proximate cause of death. It provided for a fine or time in the county jail or both. Its penalty provisions varied from that of Article 802c, supra.

In Hines, the court stated:

“As can be observed, Article 6701d, Sec. 50A(a), (b), supra, is a broad and general statute applicable to different factual situations, while Article 802c, supra, is a special statute directed to the situation where the death results from the automobile driven by an intoxicated driver. The statutes are in pari materia and when construed together can be harmonized and given effect with the special governing the general in the event of any conflict. See 53 Tex.Jur.2d, Statutes, Sec. 186, p. 280.”
The casé was affirmed.

Likewise in the instant case it is observed that V.T.C.A., Penal Code, Sec. 16.01, is a broad and general statute applicable to all types of possession of criminal instruments with intent to use them in the commission of an offense, etc., while possession of a forged writing with intent to utter it is forgery under V.T.C.A., Penal Code, Sec. 32.21(a)(1)(C), and is a special statute dealing with possession of forged instruments, including forged prescriptions. The statutes are in pari materia and when construed together can be harmonized and given effect with the special governing the general in the event of any conflict. See Thomas v. State, 129 Tex.Cr.R. 628, 91 S.W.2d 716 (1936).

We conclude that the petitioner was improperly convicted of unlawful possession of a criminal instrument and should have been charged with forgery under said Section 32.21(a)(1)(C), a misdemeanor, over which the convicting district court did not have jurisdiction.

The State urges “the true issue” is one of carving. We do not agree. The issue in the present case is which statute controls when both statutes cover the offense involved.

The relief requested by the habeas corpus application is granted, the convictions are set aside and the indictments ordered dismissed.

It is so ordered.

      . Said Section 16.01 has been amended to read:
      “(a) A person commits an offense if:
      “(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or
      “(2) with knowledge of its character and with intent to use or aid or permit another to use in the commission of an offense, he manufactures, adapts, sells, installs, or sets up a criminal instrument.
      “(b) For the purpose of this section, ‘criminal instrument’ means anything, the possession, manufacture, or sale of which is not otherwise an offense, that is specially designed, made, or adapted for use in the commission of an offense.
      “(c) An offense under Subsection (a)(1) of this section is one category lower than the offense intended. An offense under Subsection (a)(2) of this section is a felony of the third degree.”
      Acts 1975, 64th Leg., p. 913, ch. 342, § 7, eff. Sept. 1, 1975.

      . The State raises the question whether under Section 32.21(b) petitioner could have been charged with forging a writing “with intent to defraud or harm” since the writing was a forged prescription and asked who is harmed or defrauded when an actor presents a forged prescription to a pharmacist in an attempt to obtain drugs?
      V.T.C.A., Penal Code, Sec. 1.07, provides in part:
      “(4) ‘Another’ means a person other than the actor.
      “(27) ‘Person’ means an individual, corporation, or association.
      “(5) ‘Association’ means a government

      “(16) ‘Harm’ means anything reasonably regarded as loss, disadvantage, or injury, in-eluding harm to another person in whose welfare the person affected is interested.” The regulation of prescriptions by the State such that dangerous and habit-forming drugs are not indiscriminately dispensed to the general public authorized by the interest of the government in the health and welfare of the populace. Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 1419, 8 L.Ed.2d 758 (1962). The “harm” which occurs when an individual forges a prescription and presents it to a pharmacy is therefore to the government and to the public, whose health and welfare are being protected by drug control statutes. Therefore, the State’s argument that no one is injured other than the forger himself must be discounted. Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819 (1921).


author: BROWN, Commissioner.

text:
    Joe MUNOZ, Appellant, v. The STATE of Texas, Appellee.
    No. 52200.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Richard M. Graham, Midland, for appellant.
    John H. Green, Dist. Atty., Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for theft of property of the value of more than fifty dollars under the former penal code. Punishment, enhanced by two prior felony convictions, was assessed at life in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. In two grounds of error appellant alleges that the provisions of Article 26.04, Vernon’s Ann.C.C.P., were not complied with in that his court-appointed attorney was not allowed the mandatory ten day period for preparation prior to trial.

It appears from the record that appellant was charged in Cause Number B-7455 with selling narcotics and in Cause Number A— 7455 (the instant case) with theft. It is undisputed that counsel had been appointed in ample time to represent appellant in the narcotics case. The formal notice sent to counsel by the district clerk apparently was marked only with Cause Number B-7455, and it appears that through inadvertence no formal notice had been given counsel as to the instant case.

During a discussion among the State’s attorneys, defense counsel and the trial court, it was developed that plea negotiations had been conducted between the State’s attorney and defense counsel several weeks prior to trial. There was a dispute between the prosecutor and defense counsel over whether or not those negotiations involved only the narcotics case, or only the theft case, or both cases. Defense counsel contended that his first notice of the theft case was on the Friday immediately preceding trial, at. which time he discussed the availability of witnesses with the prosecutor.

The court noted for the record that “the practice in Ector County” was to appoint the same attorney to represent an accused when more than one case is pending against him. It was the court’s opinion that such was the situation here, that appellant’s counsel was aware of that fact and was prepared for trial, and, therefore, he overruled the appellant’s motion for continuance.

This case is much like the situation in McBride v. State, 519 S.W.2d 433 (Tex.Cr.App.1974). In that case it was also undisputed that counsel had been appointed to represent the defendant in another cause, but “through inadvertence no formal notice had been given counsel” as to the case then before the court. We affirmed that case, however, because the record contained a motion for discovery filed by counsel ten days prior to the commencement of the trial indicating that he had had sufficient time to prepare for trial.

The record in the instant case contains no motions filed prior to the commencement of the trial or any other affirmative showing that counsel was afforded the mandatory ten days to prepare for trial or even that he was appointed to represent appellant in the instant case.

For the failure of the record to show compliance with Article 26.04, supra, the judgment must be reversed and the cause remanded. Pollinzi v. State, 541 S.W.2d 445, (Tex.Cr.App.1976); Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975); Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972).

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Jessie NELSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52345, 52346.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Lindsey Enderby, Court-appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds, Norman Kinne, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted in a bench trial of burglary of a building and arson. Punishment for the burglary was assessed at six (6) years, and the punishment for arson was assessed at five (5) years.

Appellant in his sole ground of error in each cause contends that “the trial court committed reversible error in failing to grant defendant’s motion for instructed verdict in that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed in violation of Article 38.14, C.C. P.”

The State, in its brief, reflects the following facts as sufficient to supply the corroboration required by Article 38.14, Vernon’s Ann.C.C.P.:

“It is undisputed that the Medallion belonged to Officer Walker, was taken during the burglary of the building, and was discovered within hours of the burglary three to four feet from Appellant as he stood in an open, outside area with his co-indictee approximately eight to nine feet from the Medallion.”

On the morning of May 27, 1975, Officer Mayfield arrived at his duty station, a community store front recreation facility, to discover that the building had been broken into and several fires had been started in some metal lockers inside the building. W. H. Lute, a fire department investigator, was of the opinion that the fire had been set since there was no communication between the fires in the two lockers. He also stated that the paint on the walls was blistered, and a considerable area on the floor was burnt; however, the structure was not damaged. Officer Mayfield and Dave Walker examined the building and testified that certain property was missing from the building, including an overhead projector, a football trophy, two lamps, fifteen or twenty dollars out of the coke machine, a stop watch, a rod and reel, and various other recreational items belonging to the City of Dallas. In addition, Walker testified that two items of his personal property, described as an Eisenhower silver dollar medallion and a camera, were also missing from the building.

A short time after their arrival and inspection of the community service store, Mayfield and Walker were standing in front of the building when they noticed appellant and another individual by the name of Larry Leon Rizer walking south toward the building on Vandervoort Street. Walker testified that he was acquainted with Rizer and knew he should have been in school. Walker then shouted out to them, but they kept walking. Walker and May-field then got into their car and drove down to talk to the two individuals. While talking to appellant and Rizer, Walker saw an Eisenhower medallion, similar to the one he had lost, lying on the grass near appellant and Rizer. The medallion was three to five feet from appellant and seven or eight feet from Rizer. Neither officer saw the medallion on the person of the appellant, nor saw him throw the medallion down.

Rizer, the co-defendant, testified that it was appellant’s idea to break into the community center for the purpose of burglarizing it, and later decided to burn the whole building to cover up his crime. Rizer testified that while he did not actually see appellant start any fires, he was told by appellant that he had done so. Rizer also testified that all of the property was taken to his home where it was discovered by the police. No property taken from the building was found at appellant’s home.

Appellant testified in his own behalf and denied participation in the burglary and acts of arson. He stated that he had seen Rizer the night before and again on the morning of May 27, 1975, when the two of them happened to meet and began walking together. Appellant testified that Rizer had the medallion in his pocket and that he saw Rizer throw it down to the ground as the police officers approached.

The test for determining the evidence required to support a conviction in addition to the testimony of an accomplice has been stated by this Court in numerous opinions as follows:

“ ‘The test of the sufficiency of such corroboration is to eliminate the evidence of the accomplice from consideration and then to examine the evidence of other witnesses to determine if there is inculpa-tory evidence, evidence of an incriminating nature which tends to connect the accused with the commission of the offense. Merely showing an offense occurred is not sufficient.’ Odom v. State, Tex.Cr.App., 438 S.W.2d 912; Edwards v. State, Tex.Cr.App., 427 S.W.2d 629.” Anders v. State, Tex.Cr.App., 501 S.W.2d 665.
“The corroborative testimony need not supply direct evidence; it must only tend to connect appellant with the crime.” Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

In applying this test to the instant case, we first eliminate the testimony of Larry Leon Rizer, the accomplice. Walker and Mayfield testified that certain items were missing from the building and approximately $3,000.00 of property had been damaged. Lute testified that the fire had been set and was not from natural causes. However, merely showing that an offense has occurred is not sufficient to corroborate accomplice testimony. Odom v. State, supra; Anders v. State, supra. We are left with the testimony of Walker and Mayfield that appellant was in the company of the accomplice near the scene of the offense, and that Walker’s medallion was found three to five feet from appellant and seven to eight feet from Rizer. The medallion was not seen on the appellant’s person and neither witness saw appellant throw the medallion down. Appellant admitted being in the presence of the accomplice the night before the offense and was in his presence at the time of the arrest, but he denied any participation in the events.

The mere presence of the accused in the company of the accomplice shortly before or after the time of the offense is not, in itself, sufficient corroboration of the testimony of an accomplice. Cherb v. State, supra; Moore v. State, supra; Rodriquez v. State, 508 S.W.2d 80 (Tex.Cr.App.1974). However, the presence of the accused with the accomplice, when coupled with other circumstances, may be sufficient to corroborate the testimony of the accomplice. Cherb v. State, supra. The issue, then, reduces to this: is the evidence that the medallion was found three to five feet from appellant sufficient to tend to connect him with the crimes as required by Article 38.14, V.A.C.C.P.?

In the instant case, appellant was shown merely to be in the proximity of the medallion. There is no evidence that appellant had any connection with, control of, or possession of the stolen property when it was found. See McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966); cf. Cherb v. State, supra. Further, the record reflects that the items taken from the community store front facility were found in the home of the accomplice witness, not in the home of the appellant.

Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971), is similar to the instant case. This case involved a robbery in which Chapman was an alleged accomplice. The evidence showed that at the time of his arrest in a cafeteria he had a pen in his hand and that a paper napkin was recovered where the two arrestees were seated containing numerical notations, including “600 bonds” and “600 me”. In Chapman, supra, we found that evidence insufficient to corroborate the accomplice testimony.

The record is devoid of any additional evidence of an inculpatory nature tending to connect the accused with the commission of the offense of burglary of a building or the offense of arson, such as being in the company of the accomplice near the scene of the crime at the time of its commission at an unusual hour, flight or actual possession of stolen property. See Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968).

The corroborating evidence fails to connect appellant with the offenses alleged. See Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972); Chapman v. State, supra; Moore v. State, supra; Harris v. State, 524 S.W.2d 65 (Tex.Cr.App.1975).

The judgment is reversed and the cause remanded.


text:
    Johnny Ray MAHOME, Appellant, v. The STATE of Texas, Appellee.
    No. 52354.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Paul W. Leech, Grand Prairie, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of bribery of a public official; the punishment is a fine of $500. The appellant waived a jury trial and entered a plea of not guilty before the court; the court found the appellant guilty of a felony of the third degree, but pursuant to V.T. C.A. Penal Code, Article 12.44, the court entered a judgment and assessed punishment for a Class A misdemeanor.

The only question presented for review is whether the evidence is sufficient to support the conviction. The indictment alleged in substance that the appellant offered a benefit of $44 to police officer J. S. Maddox, a public servant, with the intent to influence him in his official duties not to arrest the appellant. See Y.T.C.A. Penal Code, Article 36.02(a)(1).

On January 13, 1975, at approximately 11:45 p.m., J. S. Maddox, a Dallas police officer who was in a marked patrol car with his partner officer G. W. Tucker, noticed a car, which was driven onto a street without its headlights turned on, and the car was driven partly in both of the two north bound traffic lanes. The officers used their emergency equipment and brought the car to a stop. Maddox, who was dressed in full police uniform, got out of the patrol car and walked to the front of it, where he met the appellant who had walked back from the car he had been driving. The officer asked if he could see the appellant’s operator’s license. The appellant made no verbal response, but took from his wallet a twenty dollar bill and handed it toward the officer. The officer asked the appellant what the money was for, but the appellant did not reply. Maddox called to Tucker; Tucker came over and asked the appellant what he was doing with the twenty dollar bill he was holding. The appellant said nothing, and one of the officers again asked the appellant if they could see his operator’s license. The appellant then took from his wallet another twenty dollar bill and four one dollar bills. The appellant handed all of the money to Maddox who took it. After the officers had asked repeatedly what the money was for, the appellant said, “You know, man, I’m D.W.I.” The appellant’s breath smelled as if he had been drinking an alcoholic beverage, and he told the officers that he had been drinking. Maddox testified that the appellant was “moderately” intoxicated, and that he was “thick tongued,” “mushmouthed” and talked about “things that were not relevant,” but “he wasn’t stumbling or falling down or anything.”

The appellant was charged with the offense of bribery, the offense of driving an automobile on a public road while intoxicated, and the offenses of driving an automobile without lights and without an operator’s license.

The only evidence offered was the testimony of officer Maddox which is the evidence that has been summarized. The appellant did not testify, and no other evidence was offered in his defense.

On appeal the appellant argues that it is difficult to determine whether the appellant made the statement, “You know, man, I’m D.W.I.” before or after the officers told him he was being arrested for attempting to bribe a police officer, but that, in any event, there was no testimony that the money was offered to prevent his arrest for driving while intoxicated because that offense had not even been mentioned. The appellant concludes that the State failed to prove that the attempted bribe, if there was one, was for the purpose of preventing his arrest as opposed to not being issued a ticket.

The evidence is sufficient to support the trial court’s judgment and to show that the offer of the money to Maddox by the appellant was made with the intent to prevent his arrest and to influence officer Maddox in his official duties. It is not necessary that the appellant make an explicit verbal offer to bribe officer Maddox. The appellant’s acts and statement in the circumstances of this case are sufficient to support the trial court’s finding that the appellant was guilty beyond a reasonable doubt of the offense with which he was charged. The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.