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

text:
    Charles Anthony REDD, Appellant, v. The STATE of Texas, Appellee.
    No. 49097.
    Court of Criminal Appeals of Texas.
    March 12, 1975.
    Rehearing Denied May 21, 1975.

      C. David Evans, Arthur A. Estefan and Allan Craig, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong and David K. .Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

The conviction is for robbery by assault; the punishment, life imprisonment.

The indictment alleges that on November 18, 1972 appellant robbed one Keith McCrary, manager of the Gibson’s Discount Center, by holding members of his family hostage. Appellant was positively identified by the complaining witness and three additional witnesses. Mrs. McCrary was called as a witness for the State and testified in detail about the period she was held hostage. During cross-examination, she was questioned by the defense about her misidentification of the appellant at an earlier lineup. She was uncertain as to her identification of appellant at trial.

Over strenuous objection, the State was allowed to introduce evidence of two extraneous offenses during their case in chief. The first one involved an April 29, 1972 robbery at a Handy Andy supermarket wherein the family of the manager was held hostage in order to effectuate the crime. The second extraneous offense was a robbery at an H.E.B. food store on June 6, 1972. It likewise involved the same scheme and design of holding the manager’s family hostage.

The appellant offered no evidence; rested and closed with the State.

Iii his first ground of error, appellant urges that this case should be reversed because the State was permitted to introduce evidence of two extraneous offenses. Appellant argues that since the defense rested with the State, put on no evidence, and raised no defensive theories, the admission of these extraneous offenses during the State’s direct case was error. We agree.

The State contends that the issue of identity was raised by appellant’s cross-examination of Mrs. McCrary. On cross-examination, she was asked:

“Q Of course, I guess what everybody is interested in hearing right now is whether or not this is the man that was at your house ?
“A Well, I can’t be just positively sure.
“Q Okay. You certainly weren’t positively sure on the 13th of December when you picked another man out of a line-up, were you?
“A No, I wasn’t.
“Q Did you pick another man out ?
“A Yes, I did.”

Subsequently, in her cross-examination, she testified that she did not' want to take a chance and say definitely that appellant was the man in her house because he may not have been the one. From these circumstances, the State maintains that Mrs. Mc-Crary was vigorously cross-examined and the identity of appellant was raised, thereby opening the door for the admission of collateral crimes.

The issue presented is whether the cross-examination of Mrs. McCrary raised the issue of identity such as to permit the admission of two extraneous offenses. We can only conclude that it did not. The decision of this Court in Hickombottom v. State, 486 S.W.2d 951 (Tex.Cr.App.1972) is dispositive. It involved a similar situation wherein co-defendants closed with the State and did not put on any evidence nor offer any defensive theories. Two policemen identified the defendants as they were leaving the scene of the crime with guns in their hands. The co-defendants were further identified by the store manager and three other employees of the store. The State urged that the identity of co-defendant Carter was raised by vigorous cross-examination of the store manager where he testified 'his identification was based on a very brief glance; however, the witness remained positive in his identification. As to co-defendant Hickombottom, the State contended identity was raised while during cross-examination one witness testified that the defendant “resembled” one of the persons committing the robbery. On direct, the witness had testified that Hickombot-tom was one of the robbers. This Court held that since at least two other witnesses made positive identifications of both defendants and they offered no evidence in their behalf, the issue of identity was not raised.

Clearly, the aforementioned case controls the one at bar. Here, there are at least four other positive identifications which remained unimpeached after cross-examination. See Okra v. State, 507 S.W.2d 220 (Tex.Cr.App.1974); Franklin v. State, 488 S.W.2d 826 (Tex.Cr.App.1972); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Rogers v. State, 484 S.W.2d 708 (Tex.Cr.App.1972); compare Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972). Three witnesses identified appellant as the man at the Gibson’s store and one, Mrs. Mc-Crary’s daughter, positively identified appellant as the man in her home. Mrs. Mc-Crary on direct examination testified she believed appellant was one of the robbers. As in Hickombottom v. State, supra, the effectiveness of the State’s direct evidence was not seriously affected by Mrs. McCrary’s uncertain identification. Albrecht v. State, supra. The effect of the questions propounded on cross-examination was inconsequential in relation to the strength of the State’s case.

A statement in Caldwell v. State, supra, is applicable to the instant case:

“To hold that the cross-examination of this prosecutrix would permit the introduction of an extraneous offense would be tantamount to holding that such testimony would be admissible in any case where a defendant’s counsel exercises the constitutional right of cross-examination. This is not and should not be the law.” See also Rogers v. State, supra.

The State relies on Mitchell v. State, 503 S.W.2d 562 (Tex.Cr.App.1974); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1973); Gillon v. State, 492 S.W.2d 948 (Tex.Cr.App.1973). These cases are clearly distinguishable from the case at bar. In Mitchell v. State, supra, extraneous offenses were admitted after both defendants testified on their own behalf, denied committing the crime, and relied on the defense of alibi. Although there was an extensive, searching and forceful cross-examination of each witness who identified the defendants, the issue of identity in that case was raised not only by a vigorous cross-examination but also because of the defendants’ denial of the commission of the crime and their reliance on the defense of alibi. There can be no doubt in Mitchell v. State, supra, but that the issue of identity was raised. It is particularly noteworthy that in the instant case the defense rested with the State. In Cobb v. State, supra, the defendant testified that he did not commit the crime and raised the defense of alibi. The State relied on the defense of alibi to introduce the collateral offenses.

The situation in Gillon v. State, supra, involved the successful impeachment of the complaining witness on cross-examination because of his misidentification of appellant before the grand jury. In such a case where the State’s only identifying witness is impeached as to a material detail of his identification•, extraneous offenses are properly admissible to circumstantially prove identity. See Hickombottom v. State, supra; Simmons v. State, 457 S.W.2d 570 (Tex.Cr.App.1970); Ferrell v. State, 429 S.W.2d 901 (Tex.Cr.App.1968); Olivio v. State, 422 S.W.2d 182 (Tex.Cr.App.1967); compare Lusk v. State, 511 S.W.2d 279 (Tex.Cr.App.1974). The common distinguishing feature to each of the above mentioned cases is that the effectiveness of the State’s direct evidence, i. e., sole identifying witness, is undermined by defense cross-examination; whereas, the case at bar has four unim-peached identifying witnesses and the State’s case is not seriously impaired. Albrecht v. State, supra, citing the aforementioned cases.

Another decision of this Court which relied on vigorous cross-examination as a basis for admitting extraneous offenses in order to prove identity was Parks v. State, 437 S.W.2d 554 (Tex.Cr.App.1969). In that case, there were two witnesses who made positive identifications on direct examination. The defendant did not testify but did call a policeman as a defense witness who was unable to match the defendant’s fingerprints with those taken at the scene of the crime. During cross-examination, the first identifying witness was impeached by his statement to the police immediately after the crime in which he stated he was unable to identify the murderer because he did not see the man clearly. Defendant’s counsel vigorously cross-examined the second identifying witness and attempted to impeach him with his prior statement to the police. It is apparent that identity was a sharply controverted issue and the effectiveness of the State’s direct evidence on identification was seriously jeopardized. The defendant presented a defense and the State sought to rebut this defensive theory by use of extraneous offenses to establish the hotly contested issue of identity.

We find none of the foregoing cases applicable to the instant case. The State’s case was not substantially affected when one witness could not positively identify the appellant in the face of overwhelming direct evidence to that issue. Cross-examination of Mrs. McCrary was not such as to raise the issue of identity. We conclude that it was error to admit the extraneous offenses under such circumstances. See Jones v. State, 481 S.W.2d 900 (Tex.Cr.App.1972); Hafti v. State, 416 S.W.2d 824 (Tex.Cr.App.1967).

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

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

On original submission this cause was reversed because the trial court erroneously admitted evidence of two extraneous offenses. We held the cross-examination of Mrs. McCrary, one of the State’s witnesses, did not raise the issue of identity.

In its brief supporting its Motion for Rehearing, the State contends the cross-examination of all the witnesses called on the State’s case-in-chief, taken together, was sufficient to raise the issue of identity and permit the introduction of extraneous offenses. In support of this theory the State enumerates the following “unexplained discrepancies elicited as a result of cross-examination:

“A.) Two witnesses stated the robber wore glasses. (Mrs. McCrary and Sandra McCrary).
“B.) Three witnesses said the robber was not wearing glasses ([Mr.] Mc-Crary, Officer Fulton, and Martha Boothe).
“C.) All the witnesses, except Martha Boothe, stated the robber had a mustache. Martha Boothe stated that the robber had no mustache and was clean-shaven.
“D.) Some of the witnesses stated the robber had long sideburns. No long sideburns were characteristic of Appellant as reflected by his mug shot and his presence in the line-up.
“E.) Mrs. McCrary identified another individual in the line-up as the robber and could not identify Appellant at trial as being the robber.
“F.) Tefteller’s testimony on cross-examination elicited the fact that of all the witnesses to the robbery at the lineup, three or four could not identify Appellant as the individual who committed the robbery.
“G.) Out of the three or four witnesses who could not identify Appellant at the line-up, only Mrs. McCrary was present at the trial.”

Although on first impression it appears that numerous discrepancies were developed on cross-examination, a closer examination of the record dispels that conclusion. The apparent conflict among the witnesses on whether the robber wore glasses presents the greatest initial suggestion that identity is in issue. An examination of the record, however, reveals a reasonable explanation which by no means puts identity in issue. The offense was committed as follows: Appellant and a companion entered the home of Keith McCrary, manager of a Gibson store, and held his family hostage. Appellant then took the family car and went to the store, where he met Mc-Crary and robbed the store, aided by the fact that his companion was holding Mc-Crary’s family hostage. The witnesses who said the robber was wearing glasses were those who observed him at the home. Those who said he was not wearing glasses were the ones who observed him at the store. Thus, while the “discrepancy” may have shown that the robber was a clever criminal who attempted to change his appearance in the midst of the crime, it did not undermine or jeopardize the State’s case or place identity in issue.

The other asserted discrepancies had an equally insignificant impact on the State’s proof of identity and did not authorize the introduction of extraneous offenses.

The State’s Motion for Rehearing is overruled.

DOUGLAS, Judge

(dissenting).

On original submission this cause was reversed because the trial court admitted evidence of an extraneous offense. The opinion concluded that there was no defensive theory raised. The State’s motion for rehearing has been overruled.

The record reflects that a white man wearing a mask and a black man entered the home of Keith McCrary, a manager of a Gibson’s Store in San Antonio. All of the members of the family who were present were rounded up and held hostage by the masked man. The black man [appellant] took the family car and went to the Gibson’s Store managed by McCrary. Appellant told McCrary that he needed to talk to him. They went to the office where appellant took McCrary’s gun. B. G. Fulton, working as a security officer, was called to the office. A woman employee came to the office. In a telephone conversation with the man at the McCrary home, Fulton learned that the family was being held hostage.

Appellant, who had threatened Mc-Crary’s family, took him and had him empty the cash registers in the store. After taking approximately $5,000, appellant left.

Sue McCrary, wife of Keith McCrary, testified that a masked white man and a black man came to their house. She related what occurred while they were at the house. She gave no testimony about the identification of either.

Sandra McCrary, a seventh grade student, testified that she saw appellant in her brother’s room. Appellant pulled a gun and ordered her into the hall and had her write their telephone number on a piece of paper. He took the keys of her mother’s car and left.

B. G. Fulton testified that he was a San Antonio policeman on vacation at the time working as a security officer at Gibson’s. He related that it was the appellant who held a gun on the group in the office of the store. He related the threats that appellant had made and testified about the conversation on the telephone at the Mc-Crary home.

Martha Boothe, a cashier, testified that appellant accompanied by McCrary took money from twelve of the cash registers in the store.

Detective Tefteller related how the lineup was conducted.

To see if the question of identity was raised, we will look to the cross-examination of the witnesses.

A portion of the State’s brief on motion for rehearing written by Alan E. Battaglia, Assistant District Attorney, is adopted as a part of this dissent. It is as follows:

“The first witness for the State to be cross-examined was Keith McCrary. Counsel for Appellant almost immediately began to challenge the identification of Appellant by Keith McCrary suggesting it may have been tainted. The trial court initially 'overruled defense counsel’s request for a hearing outside the presence of the jury to determine if the identification had been tainted. Later, following an objection to hearsay evidence, the jury was removed and a hearing conducted outside their presence. During this hearing, the trial court permitted Appellant’s counsel to question Keith McCrary concerning his identification of Appellant. The Court found that Keith McCrary’s identification of Appellant was not tainted.

“On cross-examination, both outside the presence of the jury and again in the jury’s presence, Keith McCrary testified that the individual who robbed him had a moustache and was not wearing glasses.

“Officer Fulton testified on cross-examination that the alleged robber had a mous-tache but did not wear glasses.

“Both Sue and Sandra McCrary stated on cross-examination that the alleged robber had a moustache but that the robber was wearing some type of glasses.

“Further cross-examination of Sue Mc-Crary elicited the fact that she had identified a man other than Appellant at the police line-up. While on cross-examination she could not positively identify Appellant as one of the alleged robbers.

“The witness, Martha Boothe, stated on cross-examination that the alleged robber was not wearing glasses and further that he had no moustache but was in fact, clean-shaven. This contradicted the testimony of every other witness who stated the alleged robber had a moustache.

“Cross-examination of Officer Fulton, Martha Boothe and Sandra McCrary brought out that the alleged robber had long sideburns. Officer Fulton admitted on cross-examination that when he viewed Appellant’s mug shot and viewed Appellant in the line-up, he saw no long sideburns on Appellant.

“The cross-examination of Detective Tefteller was also centered around identity. In response to cross-examination, it was elicited from Tefteller that of the witnesses to the robbery who viewed the line-up, three identified Appellant, two identified no one and two identified a man named William Taylor.

“The manner in which cross-examination of the State’s witnesses was conducted was penetrating and extensive. Most importantly, cross-examination centered around identity wherein every detail concerning the description of the alleged robber given by the witnesses was exhaustingly probed. Cross-examination included the use of the written statements given prior to trial by the witnesses in challenging identity.

“At the end of the State’s direct case the trial court and the jury had before them the following unexplained discrepancies elicited as a result of cross-examination :

“A.) Two witnesses stated the robber wore glasses. (Mrs. McCrary and Sandra McCrary).
“B.) Three witnesses said the robber was not wearing glasses (Mrs. McCrary, Officer Fulton and Martha Boothe).
“C.) All the witnesses, except Martha Boothe, stated the robber had a moustache. Martha Boothe stated that the robber had no moustache and was clean-shaven.
“D.) Some of the witnesses stated the robber had long sideburns. No long sideburns were characteristic of Appellant as reflected by his mug shot and his presence in the line-up.
“E.) Mrs. McCrary identified another individual in the line-up as the robber and could not identify Appellant at trial as being the robber.
“F.) Tefteller’s testimony on cross-examination elicited the fact that of all the witnesses to the robbery at the line-up, three or four could not identify Appellant as the individual who committed the robbery.
“G.) Out of the three or four witnesses who could not identify Appellant at the line-up, only Mrs. McCrary was present at the trial.

When a witness testifies to an alibi for an accused, this is testimony to the effect that the witnesses were mistaken in their identification of the defendant. This Court recognized that in Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974). See Owens v. State, 450 S.W.2d 324 (Tex.Cr.App.1970), and Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), which sets out guidelines for the introduction of extraneous offenses. No. (6) permits their introduction “to refute a defensive theory raised by the accused.”

The whole defense or issue of appellant in the present case was identification on the part of practically all of the witnesses. This raised the issue more directly than the defense of alibi.

The trial court stated that the question of identity had been raised even though alibi was not mentioned.

The court then allowed proof that at approximately 9:30 p. m., April 29, 1972, appellant and a masked white man went to the home of Talmadge Simmons, the manager of a Handy Andy Store in the Oak Park Center. They knocked on the door and stated that they had had car trouble and wanted to use the telephone. Appellant and the other man both had pistols. Appellant held the family at bay while the masked man searched the house. The two men took money and some jewelry from the people at the house.

Appellant, still armed, took Simmons and his car to the Handy Andy Store and made him take some $12,000 from the store. In the meantime the white man with the mask held the family at gun point. After getting the money appellant took Simmons home and locked him up with the rest of the family in the master bedroom. Both of the robbers then left. Many of the circumstances in both robberies were the same.

The witnesses to this transaction were cross-examined about their testimony identifying appellant. Appellant moved to strike the testimony of the witnesses to the second transaction because:

“It denies the Defendant the right to be confronted by his accusers in that the Defendant is limited in his cross-examination of the complaining witness as to identity.”

Identity being in issue, the trial court did not err in permitting proof of the facts of the robbery of Simmons at the Handy Andy Store.

The State’s motion for rehearing should be granted and the judgment affirmed.

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

      . The testimony was as follows:
      “Q Is this the black man?
      “A This was the black man.”
      It is unclear from the record whether this identification was directed at appellant; however, we will assume it was.

      . See Lee v. State, 496 S.W.2d 616 (Tex.Cr.App.1973); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972); Grayson v. State, 481 S.W.2d 859 (Tex.Cr.App.1972).

      . See Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974); Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); Jones v. State, 501 S.W.2d 308 (Tex.Cr.App.1973); Henrikson v. State, 500 S.W.2d 491 (Tex.Cr.App.1973); Roberts v. State, 495 S.W.2d 894 (Tex.Cr.App.1973): Curlin v. State, 492 S.W.2d 480 (Tex.Cr.App.1973); Fagan v. State, 489 S.W.2d 578 (Tex.Cr.App.1973); Martin v. State, 489 S.W.2d 282 (Tex.Cr.App.1973); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971); compare Johnson v. State, 509 S.W. 2d 870 (Tex.Cr.App.1974).

      .See Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Lolmaugh v. State, 514 S.W.2d 758 (Tex.Cr.App.1974); Grayson v. State, supra, note 3.

      . “That the entire objective of the cross-examination of the State’s witnesses was to raise the issue of identity finds further support in the closing remarks made by the attorneys for Appellant. Mr. Estefan stated to the jury:
      “ ‘The only issue in the case, then, is whether or not Charles Redd is the man that committed the crime .... Has the State proven to you beyond a reasonable doubt, as is outlined in the charge, that Charles Redd and no other man is the person that committed this crime? ’
      “Mr. Estefan then directed the jury’s attention to the discrepancy as to whether or not the alleged robber wore glasses. Next, he discussed the question of the sideburns. Then Mr. Estefan re-emphasized the mis-identification of Mrs. McCrary. Next he referred the jury to the fact that Mrs. Boothe stated the robber did not have a moustache and the fact that another witness to the line-up, Kaplan, also identified another individual in the line-up as the robber. After pointing to all the discrepancies raised through cross-examination Mr. Es-tefan stated:
      “ ‘ . . . And, that is what this case is all about, ladies and gentlemen.
      “ ‘This unfortunate man here happens to look more like the robber than any other picture or any other person in a line-up that was shown to the witnesses in this case and that is what we are doing here today.’
      “Appellant’s counsel, Mr. Evans told the jury that, with the discrepancies, all that existed was an ‘honest misidentification’. He concluded by stating:
      “ ‘I think there is all kinds of doubt in this case as to whether or not he is the man that committed the robbery.’ ”
      Defense counsel also argued that Officer Fulton had pressure on him to make a ease, but that he was honestly mistaken. It was also argued appellant was incapable of growing sideburns.


source: Caselaw Access Project

author: GREEN, Commissioner.

license: Public Domain

text:
    Richard MENDOZA, Appellant, v. The STATE of Texas, Appellee.
    No. 49587.
    Court of Criminal Appeals of Texas.
    May 21, 1975.
    Kerry P. FitzGerald (Court-appointed on appeal), Dallas, for appellant.
    Henry Wade, Dist. Atty., and Steve Wil-ensky, Jon Sparling and Don Driscoll, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder with malice. Punishment was assessed at thirty years.

Appellant’s sole ground of error is that the court erred in refusing to submit in its charge to the jury instructions on the law of negligent homicide.

The record reflects that in the latter part of July, 1972, Rosemary Gonzales and her six months old son, Michael Gonzales, started living with appellant. On August 18, 1972, while Rosemary was taking a bath in the bathroom across the hall from the apartment, appellant was in the bedroom with Michael. She testified as a State’s witness on its case in chief that about ten minutes after she started her bath appellant came in the bathroom and told her that the baby had been hurt. On examining the child, she noticed that both of his eyes were swollen and that he had a bruise on his forehead. She and appellant took the child to Parkland Memorial Hospital, where it died that day.

Dr. Vincent Dimaio performed an autopsy on the body of Michael Gonzales August 19th. He testified that his examination disclosed that the infant had suffered one blow in the abdomen and four blows to the head, and that death was caused by a combination of the blows. He stated that these injuries were not consistent with the child being hurt as a result of a fall from a bed.

A written confession signed by appellant on August 21, 1972, was admitted in evidence without objection. In addition to the portion containing the warnings, this confession reads as follows:

“On Friday, August 18, 1972, at about fifteen minutes to one in the afternoon Rosie was taking a bath and the baby was crying a little, the crying bothered me a little. I swung back and hit the baby in the right side of the head with the back of my fist. The baby cried loud and I got scared. I grabbed the baby and called Rosie and took him to Parkland Memorial Hospital.”

Appellant in his brief argues that “his statement that he struck the child with the back of his hand while the child was crying and that he then took the child to Parkland Memorial Hospital raises the legal issue of whether or not appellant was guilty of negligent homicide of the second degree in that he failed to exercise the proper care and caution of an ordinarily prudent person under the same or similar circumstances in hitting the child.”

Appellant admitted striking the six months old baby in the side of its head with his fist. Under the provisions of Art. 1148a, Vernon’s Ann.P.C., this intentional battery of a child under 14 years of age constituted a felony offense. See Hilliard v. State, Tex.Cr.App., 513 S.W.2d 28. Art. 1241, V.A.P.C. provides:

“When one in the execution of or in attempting to execute an act made a felony by law shall kill another, though without an apparent intention to kill, the offense does not come within the definition of negligent homicide.”

The issue of negligent homicide was not raised by the confession of appellant.

However, the record reflects that after the State had rested its case in chief appellant recalled Rosemary Gonzales to the stand and questioned her concerning a written request she had made to have the prosecution dismissed. On cross-examination by the State, she testified that when appellant first told her of the baby being hurt, he said that it had fallen off the bed. Later, after she had gone with him to the bedroom to see what had happened, he told her, in response to questioning, that while he was lying on the bed playing with deceased, tossing him into the air, he dropped him, and he hit the metal frame of the bed.

Appellant did not testify, and the hearsay testimony of Rosemary Gonzales of the self-serving statements of appellant given in answer to her inquiries is the only evidence we have in the record which could arguably raise the issue of negligent homicide. See Esparza v. State, Tex.Cr.App., 520 S.W.2d 891; Stiles v. State, Tex.Cr.App., 520 S.W.2d 894. In Esparza and Stiles, the Court held that the defendants’ testimony raised the issue of negligent homicide.

It is a well established rule of evidence that hearsay is without probative value. It constitutes no evidence, and will not be considered as such. Reynolds v. State, Tex.Cr.App., 489 S.W.2d 866; Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Salas v. State, Tex.Cr.App., 403 S.W.2d 440; Rogers v. State, Tex.Cr.App., 368 S.W.2d 772.

As to self-serving statements, see 24 Tex.Jur.2d, p. 163, § 612.

Eliminating Gonzales’ hearsay testimony of appellant’s self-serving statements, made in answer to her questioning, there is no evidence in the record raising the issue of negligent homicide. The trial court did not err in refusing to submit that issue to the jury.

The judgment is affirmed.

Opinion approved by the Court.


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

text:
    Tommy Preston MARSHBURN, Appellant, v. The STATE of Texas, Appellee (two cases).
    Nos. 49075, 49076.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1975.
    Rehearing Denied May 21, 1975.
    Tom A. Boardman and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty. and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of the offenses of attempted escape and robbery by assault. Punishment was assessed by the jury at 15 years for attempted escape and at 500 years for robbery by assault.

Because of our disposition of the case, no discussion of the facts in either cause is necessary. Appellant was tried jointly and concurrently with several co-defendants for robbery by assault and attempted escape.

Appellant complains that the prosecutor’s argument to the jury at the close of the punishment stage of the trial was manifestly improper because it invited the jury to apply the parole law in assessing punishment. We agree. The record reflects the following argument by the prosecutor:

“The Judge has told you in his charge that you have no control over the exact term of years that these men will serve; that’s to he determined by the Board of Pardons and Paroles and you will look in these judgments and you will find being sentenced from anywhere from two to five years and you say five years and two years later they are out committing another offense. Look at the records.” (Emphasis supplied.)

The objection that this argument was improperly going into how long the convicted will actually have to serve was overruled. Prior to this argument, the prosecutor made other references to the potential effect of a long term of years upon the parole authority:

“The Judge told you you can’t consider how long these people are going to serve when they are in the penitentiary. I would suggest to you the only way that you are going to do any good and help us here in Dallas County is to make examples of each and every one of the five
“ . . . You know the big verdicts you hear about are not reasonable. . you know no person has lived 2,000 years. . You know no man can live that long, but I say you have to do something to draw attention, to make these people different than the rest of the people in the jail, to make somebody, somebody who decides how long they are actually going to serve, say this is different than the rest of the life cases that we see. There is something special about this case. I can see right here by the verdict it stands out, I better look into this.” (Emphasis supplied.)

It was stated in Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230 at 231 that to be approved by this Court, “[J]ury arguments need to be within the areas of (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.” (Citations omitted from text). The arguments of the prosecutor do not come within any of the permissible areas of jury argument. On the contrary, the prosecutor’s arguments were calculated to introduce prejudice into the minds of the jurors. Cf. Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575 at 576. The prejudice introduced by the prosecutor operates by urging the jury to impose an excessive prison term to compensate for or protect against the action of the Board of Pardons and Paroles.

The prosecutor said, in relation to the term of years prisoners were required to serve by the Board of Pardons and Paroles, “and you [the jury] say five years and two years later they [the defendants] are out committing another offense.” This argument demonstrated the operation of the parole laws by inviting the jury to look at records of prior offenses which had been introduced into evidence to see how long it would take for a defendant to be released by the Board of Pardons and Paroles as compared to the length of the sentence originally assessed. The effect of this argument is to demonstrate past applications of the parole law, asking the jury to increase the punishment which would otherwise be assessed, in the ratio of five to two, so that the defendants will actually stay in prison for the length of time desired by the jury.

The State contends the prosecutor’s argument was a logical deduction from the records introduced in evidence. The records were not and could not be introduced for the purpose of making the calculation suggested by the State, and its argument that they should be put to such use was not a proper deduction from the evidence. The prosecutor was not recommending a severe punishment based on the evidence, “but urged such penalty in view of how the parole law operated.” Dorsey v. State, Tex.Cr.App., 450 S.W.2d 332 at 337 (Dissenting Opinions, Onion, J., Morrison, J.)

The judgments in both causes are reversed and remanded.

DOUGLAS, Judge

(dissenting).

The majority reverses these convictions without discussing the facts, without discussing the arguments of defense counsel, without discussing the argument cited in the majority opinion where no objection was made and without mentioning the instruction given by the court following the complained of argument. The facts and circumstances of the case and the setting in which an argument is made should be considered before reversing a case on the ground of alleged improper argument.

Appellant and four others, Bobby Joe Bridger, Christopher Lee Warren, William Howard Key and Stephen Dwight Thompson, were convicted of attempted escape and robbery by assault. Both charges rose out of the same incident — an attempted escape from the Dallas County jail.

The escape attempt started when Marsh-burn, appellant, lured Officer Pickering, a guard, into a vestibule area on the pretext of getting some papers notarized. When Pickering opened the door from the safety zone into the vestibule area, Marshburn, with a pistol at his side, stepped out and said, “Pickering, this is for real, back up against the wall.” When Pickering tried to disarm Marshburn, Marshburn shot and wounded Pickering. Pickering fell to the floor, tried to crawl away and then collapsed.

Immediately prior to the shot, Officer Smart, another guard, had entered the vestibule and walked by Marshburn and Pickering when he saw that Marshburn had a gun. Smart started toward the two and saw Marshburn shoot Pickering. Marshburn turned and then put the gun in Smart’s face. He told him three times to pull the latch and let the men out of their cells. Co-defendants Warren and Bridger immediately seized him, backed him against the wall at knife point and told him to strip his clothes off. Marshburn came over and pointed the gun at Smart and Smart proceeded to strip off his trousers and shirt. In the trousers was a billfold containing $317. After Smart removed the clothes Warren took them and left.

Officer Miller was standing in the picket position on Floor 6M when he heard shots. When he saw Pickering on the floor, he set off the alarm. He turned to shut the door to the picket area and saw Marshburn pointing the gun at him. Standing with Marshburn were eight to ten prisoners including Key and Thompson. Marshburn said, “Open up or I’ll kill you.” They entered the office and jerked the telephones and intercoms loose.

Several of the prisoners placed Miller in the elevator and tried but could not operate it. They then proceeded to take Miller down the steps of the first floor. While this was going on Marshburn held a gun on Miller. The elevator would not work and the steel door on the first floor was locked. The escape attempt was thwarted. Upon this evidence the jury found the appellant and his co-defendants guilty.

At the punishment stage of the trial the State properly introduced “pen packets” on each defendant showing their prior final convictions under Article 37.07, Vernon’s Ann.C.C.P. The information before the jury for their deliberation of punishment included the following final convictions for each defendant:

(1) Thomas Preston Marshburn
(a) Swindling Under $50; convicted — June 29, 1961; sentence —1 day in the county jail.
(b) Felony theft; convicted— June 30, 1961; sentence — 2 years, probated. Probation revoked March 30, 1962.
(c) Passing of forged instruments; convicted — February 17, 1964; sentence — 3 years.
(d) Attempted robbery; convicted —October 21, 1969; sentence — two years.
(e) Misdemeanor DWI; convicted —January 6, 1971; sentence — fine and 30 days in county jail.
(2) William Howard Key
(a) Felony theft; convicted— March 12, 1948; sentence — two years.
(b) Carrying a pistol; convicted— February 25, 1949; sentence — 90 days.
(c) Felony theft; convicted — July 13, 1953; sentence — five years.
(d) Carrying a pistol; convicted— April 3, 1964; sentence — 90 days.
(e) Burglary, five counts, and felony theft; convicted — June 10, 1964; sentence on each — eight years, concurrent.
(f) Robbery, enhanced; convicted —May 21, 1971; sentence — life.
(3) Bobby Joe Bridger
(a) Burglary; convicted — October 4, 1955; sentence — five years, probated. Probation revoked March 28, 1956.
(b) Felony theft and burglary; convicted — March 28, 1956; sentence in each case — five years, all sentences to run concurrent.
(4) Christopher Lee Warren
(a) Robbery; convicted — August 6, 1971; sentence — five years, probated. Probation revoked April 13, 1972.
(5) Stephen Dwight Thompson
(a) Burglary of a private residence at night; convicted — September 9, 1971; sentence — 49 years.
(b) Assault with intent to murder with malice, kidnapping, and felony theft; convicted — August 25, 1972; sentence in each — ten years to run concurrent.

At the guilt stage of the trial, it was before the jury that the codefendants were legally confined in the jail from which they attempted to escape.

Márshburn, appellant, had been convicted on February 4, 1971, of robbery and sentenced to 75 years. He was awaiting the results of his appeal. Key was awaiting transfer to the Texas Department of Corrections to serve his life sentence for robbery that was affirmed by this Court. Bridger had been convicted on March 21, 1972, of robbery and sentenced to life. Warren had just been convicted of robbery by assault on March 7, 1972, and his punishment was finally assessed at twenty-eight years on July 20, 1972. He withdrew his notice of appeal. Thompson was awaiting the results of his appeal upon his conviction of burglary of a private residence which was affirmed before the trial in this cause. Thus, the above information formed a basis of the State’s argument on the amount of punishment the jury should assess for each defendant.

In his initial argument at the punishment stage of the trial, the assistant district attorney requested that the jury make examples of these defendants. He said:

“Your verdict is going to mean one of two things. * * * [T]he simple thing would be to sit down and write life on each one of these cases, but that hasn’t drawn any attention to the defendant’s mind before. * * * [T]he only thing you can do that’s going to do any of these people any good is to put them away for a long time, just prevent them from getting out there and raising havoc and hell in Dallas County.
“The Judge told you you can’t consider how long these people are going to serve when they are in the penitentiary. I would suggest to you the only way that you are going to do any good and help us here in Dallas County is to make examples out of each and every one of the five. . . .
“I think you will have to search long and hard to say — you know the big verdicts you hear about are not reasonable. I mean, they are really not, but you are not to consider how long a person can live, but you know no person has lived two thousand years. I mean that’s just reasonable. You know no man can live that long, but I say you have to do something to draw attention, to make these people different than the rest of the people in the jail, to make somebody, somebody who decides how long they are actually going to serve, say this is different than the rest of the life cases that we see. There is something special about this case. I can see right hereby the verdict it stands out, I’d better look into this.” (Emphasis supplied)

There was no objection by any of the defense attorneys to these arguments.

Each defense attorney then made a closing argument to the jury. Steve Halsey, attorney for co-defendant Key, said:

“ . . . and I can kind of tell by the arguments of Mr. Zimmermann [assistant district attorney] that the district attorney’s office is kind of setting their sights on a new record here, a new record meaning number of years and when the Judge says that the maximum number was not life, I’m not quite sure what the maximum is. It’s any term of years, and I guess you could write down there infinity and that would be impressive and that would be newsworthy. You could write down a million; of course, a million wouldn’t be a maximum, or you could write down four thousand. Four thousand I think is a record here in Dallas County, so you could do that, but again, this is appealing to your emotions, . . .”
“ . . .1 think you have seen the records, that there are several cases. I think my man pled out for eight years for about five cases or so, all running concurrently for eight years during one portion of his life, but you know that the State has its pound of flesh on this man as you can see from the records before you. He was reindicted as an habitual criminal, which means they find the elements, that he has been convicted before and he’s guilty of the robbery offense in 1971, then it’s automatic life. You know they have got their pound of flesh.”

Later, Tom Boardman, appellant’s attorney, said in his argument:

“I will say right now, Ladies and Gentlemen, it’s asinine to consider anything else because really when he’s talking about a hundred years or five hundred years or a thousand years, all you are doing is bolstering the egos of these men right here; that’s what you would be doing.
“Now, if you are going to punish, punish, but don’t lose your reason.
“Now, I anticipate, because I have tried several cases in my time, the last man to talk, and I don’t get to talk any more, is going to get up here and kinda straighten himself up a little bit and say Ladies and Gentlemen, it’s the considered opinion of Mr. Henry Wade, or of the district attorney’s office, you know, like we have given this great thought and then try to impress upon you that it’s come down from on high that you ought to give these men some ridiculous figure for robbing Deputy Smart knowing full well that they are going to get their third shot one of these days.”

Finally, during the prosecution’s closing arguments, the following occurred:

“[Assistant District Attorney]: . . . The Judge has told you in his charge that you have no control over the exact time of years that these men will serve; that’s to be determined by the Board of Pardons and Paroles, and you will look in these judgments and you will find being sentenced from anywhere from two to five years and you say five years and two years later they are out committing another offense. Look at the records. (Emphasis supplied).
“MR. McLAUGHLIN [Warren’s attorney] : At this time I would object to the District Attorney’s argument. The court specifically instructed the jury that they are not to consider how long the defendant will actually have to serve. Now the district attorney is going into it.
“THE COURT: Well, the jury is not to consider how long the defendants would be serving any time they decide to assess. (Emphasis Supplied)
“MR. McLAUGHLIN: Will you rule on my objection?
“THE COURT: I overrule your objection.”

The majority apparently would leave the impression that defense counsel properly objected to all statements quoted in its opinion. This was not the case. The statements by the prosecuting attorney in his opening argument were made without objection by any of the defense counsel. An objection must be made to preserve error upon appeal. The failure to object waives error. Bryant v. State, 455 S.W.2d 235 (Tex.Cr.App.1970); see also, Vela v. State, 516 S.W.2d 176 (Tex.Cr.App.1974).

Defense counsel did, however, object to the statement made in the prosecuting attorney’s final arguments which are underlined above. If, as appellant contends, such argument is inviting the jury to apply the parole law and to take into consideration how long the defendants would actually serve, such argument is improper. Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968).

But the majority opinion fails to reveal the full story. Following the argument in question, one of the defense attorneys objected. The court then specifically instructed the jury that they were not to consider how long the defendants would actually serve. Following the instruction, the court overruled the objection.

The proper instruction to the jury following an objection to such argument is tantamount to sustaining an objection and renders the error, if any, harmless. See Hughes v. State, 493 S.W.2d 166 (Tex.Cr.App.1973), and Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1970). Normally, the defense attorney will make his objection, the court will sustain that objection and, upon motion by the defense counsel, instruct the jury to disregard the argument. Here, before actually ruling on the objection, the trial court instructed the jury not to consider how long the defendants would actually serve any time that they assessed, then he overruled the defense objection. In effect, he instructed the jury to disregard any implication by the prosecution to apply the parole law.

Even so, the argument was not reversible.

In Hoover v. State, 449 S.W.2d 60 (Tex.Cr.App.1969), we said:

“Generally, to constitute reversible error because of argument of the prosecution there must be a violation of some mandatory statute or some new fact has been injected into the case or the argument must have been manifestly improper and harmful.”

None of those criteria were violated here. The majority cites Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973), saying that proper jury arguments must be within the areas of a proper summation of the evidence, a reasonable deduction from the evidence, an answer to argument of opposing counsel, or a plea for law enforcement.

The whole thrust of the prosecution’s argument here was to make an example out of these defendants. This was a plea to deter others who might want to commit similar crimes.

The argument complained of was in answer to argument of opposing counsel. They were the ones who spoke of the district attorney’s office seeking a new maximum record. They were the ones that mentioned:

“I think you have seen the records that there are several cases. I think my man pled out for eight years on about five cases or so, all running concurrently for eight years during one portion of his life, but you know that the State has its pound of flesh on this man as you can see from the records before you.”

The subject of examining the records to see how long the defendant had actually served was first injected by the defense. See Hughes v. State, supra. The prosecution was answering defense counsel’s argument.

The jury had before it evidence of quite a number of records detailing the information set out above. It is proper for the prosecuting attorney to summarize the evidence placed before the jury. This was what he was attempting to do. The remarks did not constitute a comment about the length of the sentences that would be served but were only a summation of a portion of the evidence before the jury. See Dorsey v. State, supra.

In Dorsey, the argument complained of was as follows:

“ ‘The Judge in his charge tells you that you are not to consider, comment or anything else upon the length of the sentence you decide to impose that this Defendant will be required to serve. This is within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and I’ll say this that if you do not give him life or 99 years in the penitentiary they will not be able to hold him down there until he has rehabilitated; until they themselves decide he is rehabilitated, until they decide that he has been trained and come out into the free world and take his place in society — ’ ”. 450 S.W.2d 332, at page 335.

This Court held that such remarks did not constitute a comment upon the length of term that would be served.

The argument complained of was not improper but even if considered as improper, the judge’s instruction following the objection by defense counsel rendered any error harmless.

The judgments should be affirmed.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The State’s motion for rehearing has been overruled without written opinion. The majority still refuses to discuss the fact that the argument of the prosecutor was directly from the penitentiary records and other evidence. The majority apparently believes that regardless of the record certain arguments are always reversible.

When facts are in evidence and have a bearing on the outcome, they should be discussed in the opinion. This writer does not believe that an isolated statement should be taken out of the record and show reversible error. Prosecutors have always been able, before this case, to discuss matters in evidence. When two rules of law are applicable, both should be discussed and weighed.

Recently this Court reversed a case even though no objection was made because the trial judge in his charge did not apply the law to the facts. See Harris v. State, 522 S.W.2d 199 (1975).

Is the majority opinion in the present case failing to apply the law to the facts? Without facts the law cannot be applied. Courts do not or should not operate in a vacuum. What happened in the trial in nearly all cases is important to the decision on appeal.

The majority in holding the argument reversible is apparently doing so under the belief of the fiction that jurors do not know that convicts receive credit for good time.

The majority should be consistent in its holdings. The cases against the other defendants arising from the same trial where the same objections were made were affirmed. At least the same cases should have the same result, especially where no error has been shown.

The State’s motion for rehearing should be granted and the judgment affirmed.

      . We recognize from the dissent’s desire to set out all the facts of this case, although they are of no relevance to the disposition of this ground of error, that it is concerned with the fact that two senseless crimes were committed. • We were never unmindful of that fact. What is regrettable is that a prosecutor, who certainly must have been aware of the vice in his chosen line of argument, should pursue a path which could only lead to reversal and the waste of time, energy, and state funds by the requirement of a retrial of these cases. No useful or legitimate purpose was served by the argument pursued. See Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Lopez v. State, Tex.Cr.App., 500 S.W.2d 844. See also Renn v. State, Tex.Cr.App., 495 S.W.2d 922; Stein v. State, Tex.Cr.App., 492 S.W.2d 548.

      . Bobby Joe Bridger appealed his conviction; it was affirmed by this Court in a per curiam opinion. Stephen Dwight Thompson appealed his conviction and it was affirmed at 514 S.W.2d 275 (Tex.Cr.App.1974).

      . Affirmed 486 S.W.2d 958 (Tex.Cr.App.1972). Reported as Keys v. State, but throughout this trial the name used by himself and others was Key.

      . Affirmed 486 S.W.2d 343 (Tex.Cr.App.1972).

      . Affirmed per curiam, June 6, 1973.

      . Affirmed 491 S.W.2d 663 (Tex.Cr.App.1973).

      . Affirmed 503 S.W.2d 801 (Tex.Cr.App.1974).

      . Also, in its charge, the court instructed the jury: “In determining the punishment in this case you are instructed that you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours.”


author: DOUGLAS, Judge.

text:
    John Larry PEAK, Appellant, v. The STATE of Texas, Appellee.
    No. 49625.
    Court of Criminal Appeals of Texas.
    May 21, 1975.
    Rehearing Denied June 4, 1975.

      William M. Porter, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong, Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the sale of amphetamine. The jury assessed punishment at ten years.

The record reflects that on the 12th day of March, 1971, appellant sold ten “black mollies” or amphetamine tablets to Robert Fullerton, an undercover agent, at the Cloverleaf Lounge in San Antonio.

Appellant testified that he had never been in trouble before and had never sold any pills to anyone. Richard Floan, a detective of the Anaheim, California, Police Department, testified that in June of 1971 appellant gave him what he described as “righteous” mescaline. He also produced a straw some three inches in length and stated that the mescaline was to be “snorted.” Appellant then offered to sell him amphetamines, benzedrines and seconal in large quantities in jars of 1000 count for $40.00 a jar. The price of 10,000 would be at a discount rate of $35.00 a jar. Appellant also offered to sell ninety hits of blotter acid. When asked what that was, he replied:

“They take a piece of blotter type paper, approximately eight and a half by eleven inches in size. The paper if (sic) marked off in grids, approximately one inch square, and the LSD is then placed in each one of these squares, one drop in each square. When a sale is made the seller will tear or cut a square off that has been marked on the paper and these are termed hits or blotter acid.”

Later, appellant sold Floan ten packages or jars containing approximately 10,000 benzedrine tablets. These were identified by the witness at the trial. Floan also testified that, during the transaction for the benzedrine, appellant tried to negotiate sales of “kegs” of 50,000 and 100,000 count.

Appellant presents six grounds of error.

First he contends that he was denied a speedy trial. He contends that he was unable to locate witnesses because of not being tried earlier. The offense was alleged to have been committed March 12, 1971 in an indictment returned May 12, 1971 when appellant was in California. Appellant was arrested in December, 1972. A new indictment using the correct name of appellant was returned January 31, 1973. He was tried eleven months after his arrest.

The record does not contain a request for a speedy trial.

“When non-availability of witnesses is the basis of the alleged prejudice, an appellant must show that the witnesses were unavailable at the time he was tried; that their testimony may be relevant and material to his defense, and that due diligence was exercised in an attempt to locate such witnesses at the time he was tried.” McCarty v. State, 498 S.W.2d 212, 218 (Tex.Cr.App.1973).

No error has been shown. See Courtney v. State, 472 S.W.2d 151 (Tex.Cr.App.1971); McKinney v. State, 505 S.W.2d 536 (Tex.Cr.App.1974), and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Next, complaint is made that Article 726d, Section 15, Session Laws, Chapter 437, 61st Leg. Session, page 1474, effective June 4, 1969 (former penal code under which he was tried), was unconstitutional because sufficient notice of punishment increase for the sale of amphetamine was not given.

Amphetamines were included in the term “dangerous drugs” in both the 1959 version of Texas Penal Code Annotated, Article 726d, Section 2, and in the amended 1969 version of said Article. The 1959 version of the Texas Penal Code Annotated, Article 726d, Section 15, classified the offense of sale of a dangerous drug as a misdemeanor. The 1969 version of Section 15, Article 726d, supra, made the sale of a dangerous drug a felony. Specifically delineated in the title or caption to the 1969 Act is the statement, “providing penalties for illegal sale or delivery of certain dangerous drugs.” Vernon’s Texas Session Law Service: Texas Laws 1969, Chapter 437 at 1474. Amendments are subject to a stricter rule of conformity of title to subject matter legislated on in the body of the act, with the primary goal to be achieved being that the title or caption give fair notice within itself and a reading of the title reasonably forewarn of the subject of the statute. White v. State, 440 S.W.2d 660 (Tex.Cr.App.1969). Since amphetamines were listed as a dangerous drug under both the 1959 and 1969 Acts and since the title to the 1969 amendment states that penalties will be “provided” in five places and “increased” in one, fair warning was given that penalties were to be included in the amendatory act and that they would vary the former uniform penalty of the 1959 Act. Wright v. State, 471 S.W.2d 407, 409 (Tex.Cr.App.1971).

Appellant contends that the court erred in failing to grant a challenge for cause on a prospective juror. Only a part of the voir dire examination of the panelist is included in the record. It does not show how many peremptory challenges were exercised. Assuming that a challenge for cause should have been granted, there is no showing that the appellant used all of his peremptory challenges. Absent such a showing nothing is presented for review. Sifford v. State, 505 S.W.2d 866 (Tex.Cr.App.1974).

The contention that the court erred in admitting evidence of offers to sell and the sale of drugs in California is overruled. Appellant’s testimony that he had never sold any pills and had never been in trouble before made such evidence relevant and admissible.

Complaint is also made that the court erred in overruling his motion for continuance after Detective Floan testified about the California transactions. He stated that he was surprised by such testimony.

The record contains no proper motion for new trial based upon the absence of a witness. There is no showing what any witness might testify to. There is no sug-gestión or proffer of testimony of any proposed witness. There is nothing for us to review.

Lastly, it is contended that reversible error was committed when the trial court overruled the motion for new trial based upon jury misconduct.

Assuming that the questions presented are properly presented for review, the evidence on the motion for new trial was an attempt to show the mental processes of the jurors in arriving at the verdict. Appellant wanted to adduce testimony that a juror had considered the California transactions in assessing punishment. The court gave a limiting instruction on the California transactions. There is no evidence to support this allegation. A defendant is not entitled to develop the mental process of a juror in reaching a verdict.

No abuse of discretion has been shown.

The record contains no reversible error. The judgment is affirmed.


author: MORRISON, Judge. ODOM, Judge

text:
    Frank VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50049.
    Court of Criminal Appeals of Texas.
    May 14, 1975.
    Rehearing Denied May 28, 1975.
    Antonio G. Cantu, San Antonio (Court-appointed), Philip M. Hall, Corpus Christi (Court-appointed), for appellant.
    Ted Butler, Dist. Atty., E. Dickinson Ryman and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is delivery of heroin, a controlled substance; the punishment, 10 years.

By ground of error one, appellant contends that the indictment against him is fundamentally defective and will not support his plea of guilty under Sec. 4.03(a) of the Texas Controlled Substances Act, Vernon’s Ann.Civ.St. because it fails to contain the word “unlawfully”.

Reliance, among other authorities, is had upon our opinion in Jansson v. State, 473 S.W.2d 40, wherein we said:

“In this case the motion to revoke does not allege facts which would necessarily constitute a violation of the law. It does not allege facts to show and it does not even allege as a conclusion that the possession of narcotics was unlawful. Some narcotics may be lawfully possessed if acquired by prescription or other lawful means. The allegations of the motion are fatally defective.
Even if the pleading was sufficient, the proof does not conform to the allegation that appellant possessed narcotics. The testimony of the probation officer here is that the appellant was convicted of possession of dangerous drugs.”

In that case the probationer had been convicted of possession of dangerous drugs which constituted the basis for the revocation, but such conviction had been set aside.

The holding in Jansson, supra, must be examined in the light of our earlier decision in Veevers v. State, 172 Tex.Cr.R. 162, 354 S.W.2d 161, wherein we said:

“It is unnecessary for the State to allege that the act was ‘unlawfully’ done. The rule has been stated as follows:
‘Nor need the State aver in expressed terms that the act charged was “unlawfully” done where the facts alleged clearly show it to be unlawful.’ 23 Tex.Jur. 632, 33, Indictment and Information, Section 32.
The rule is supported in Texas Jurisprudence with the citation of cases, including the following: Tucker v. State, 65 Tex.Cr.R. 627, 145 S.W. 611; Boyd v. State, 106 Tex.Cr.R. 492, 292 S.W. 1112; Morris v. State, 102 Tex.Cr.R. 578, 279 S.W. 273; Ross v. State, 102 Tex.Cr.R. 364, 277 S.W. 667, and many others.
In Ross v. State, supra, it was said:
‘By a motion to quash appellant assailed the indictment, because it omitted to charge that appellant “unlawfully” possessed the intoxicating liquor for the purpose of sale. We think the indictment not vulnerable to the attack. It charged the existence of facts which, if sustained, show a violation of the law. The failure to insert the word “unlawfully” in the charging part of the indictment does not vitiate it.’
The Supreme Court of Missouri in the case of State v. Williams, 296 S.W. 155, held that:
‘Appellant also contends that the information is defective because it does not charge that the act complained of was prohibited or unlawful. The Constitution (article 6, Sec. 38) provides that an indictment shall conclude with the words “against the peace and dignity of the state”. This information concludes with those words. It was not necessary for the information to say that the acts of the defendant were contrary to the statute, when the facts alleged of themselves showed that they were contrary to the statute.’ ”

It will thus be seen that the motion to revoke in Jansson v. State, supra, “[did] not allege facts to show” that the possession of the narcotics (dangerous drugs) was unlawful.

In the case at bar the indictment alleged the delivery of heroin, and we find the reasoning of the Fifth Circuit Court of Appeals in United States v. Miranda, 494 F.2d 783, to be persuasive. Therein they said:

“Miranda’s ‘lawful-unlawful’ argument must be viewed in the light of his status under the present law. .
Miranda, however, does not fall within one of the registered or exempted categories of people and there is nothing in the indictment which raises this possibility. The distribution of heroin by Miranda as alleged in the indictment could not be lawful.”

We conclude that the allegation of “unlawfully” is not requisite in an indictment charging the delivery of heroin.

Ground of error two contends that the admonishments given appellant when the trial court accepted appellant’s plea of guilty were insufficient because such admonishments did not include his “right to confront witnesses and privileges against self incrimination or the right of compulsory process.” The failure to give such admonishment does not invalidate a plea of guilty otherwise freely and voluntarily made. Summerall v. State, Tex.Cr.App., 514 S.W.2d 265; Cevalles v. State, Tex.Cr.App., 513 S.W.2d 865; Franks v. State, Tex.Cr.App., 513 S.W.2d 584.

By ground of error three appellant contends that the facts show that he was entrapped as a matter of law, and therefore the evidence is not sufficient to support his plea of guilty.

We need not discuss such contention because the written waiver and consent to stipulations found in the record was sufficient to constitute a judicial confession which will alone support the conviction. Adam v. State, Tex.Cr.App., 490 S.W.2d 189.

The judgment is affirmed.

ODOM, Judge

(concurring).

I concur in this affirmance. Appellant contends the indictment, alleging delivery of heroin in violation of Sec. 4.03(a) of the Controlled Substances Act, is fundamentally defective for failure to allege the act was committed “unlawfully.”

Sec. 4.03(a), supra, provides:

“Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.”

Sec. 5.10(a) of the Controlled Substances Act provides:

“It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit.”

It was not necessary that the State negate any exemptions or exceptions provided by the Act, either explicitly and individually, or generally by alleging the delivery was “unlawful.”

I therefore concur in the affirmance.

      . Sec. 4.03(a) reads in part:
      “Except as authorized by this act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with the intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3 or 4.”


author: DAVIS, Commissioner.

text:
    Jimmy Lee WESTBROOK, Appellant, v. The STATE of Texas, Appellee.
    No. 49923.
    Court of Criminal Appeals of Texas.
    May 21, 1975.

      Willis T. Taylor, Daniel H. Benson, Lubbock, of counsel, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder with malice. Punishment was assessed by the jury at ten years.

Appellant contends that the trial court erred in refusing to allow Officer Parra-more to testify as to statements made to him by appellant after his arrest.

The record reflects that on August 6, 1973, the appellant shot and killed Freddy Lee Stephens. Immediately after the shooting, appellant called Parole Officer Childs and advised him of the homicide and the circumstances surrounding the killing. The parole officer and the appellant went to the police station, where appellant voluntarily surrendered himself. Childs gave the officers the murder weapon. Appellant was timely and properly warned of his rights, and he made an oral confession to Officer Parramore which Parramore testified resulted in the recovery of empty hulls fired from the murder weapon.

The following testimony was elicited from Parramore on direct examination by the State relative to statements made by appellant at the police station.

“Q. Okay. And what did you ascertain about that pistol?
“A. Well, after I took him upstairs, I asked him, I asked Mr. Westbrook [appellant] if that was the pistol used in the shooting.
“Q. And what was his response?
“A. He replied it was.
******
“Q. And this is the gun that the deceased [sic] stated he did shoot him with, is that correct ?
“A. Well, this is the gun that the defendant said he shot the deceased with.
******
“Q. Detective Parramore, after you interviewed the defendant Jimmy Lee Westbrook, what did you do ?
“A. ... I asked him where the hulls were that went to the gun.
******
“Q. Okay. And did you find out where the hulls were?
“A. Yes, sir, he told me they were in the Flamingo Apartments in Apartment No. 6.
“Q. Okay. Did you go to the Flamingo Apartments ?
“A. Yes, sir, I did.
“Q. And where did you go in the apartments ?
“A. At Apartment No. 6.
“Q. And did you find any bullets there ?
“A. Found some empty hulls.”

Appellant’s version of the circumstances relating to the homicide was that on the morning of August 6, 1973, he purchased a television set from the deceased. Later that day, he discovered that the TV set was stolen. He attempted to return the TV set and obtain a refund of his money. When the appellant encountered the deceased, an argument broke out. Appellant testified that during the course of that argument the deceased advanced toward him and threatened to kill him.

Appellant’s nephew, Tony Dunn, testified that “. . . me and my uncle [appellant] started around the car to call the police and Freddie [deceased] came around the front end of the car with a pocket knife in his hand, came toward him [appellant], said he was going to kill him.” Appellant further testified that at the time in question he was aware of occasions when the deceased had shot people, knew of his reputation for carrying a weapon, and did not shoot deceased until he had first fired a shot into the ground in an effort to repel deceased’s advances toward him. The record reflects a pocketknife was among the personal effects found in the deceased’s clothing at the hospital. The court instructed the jury relative to the law of self-defense.

On cross-examination of Parramore, appellant sought to elicit the remainder of appellant’s statement to him as to how the shooting occurred. The trial court sustained the State’s objection to this testimony on the ground that it was hearsay.

Appellant perfected his bill of exception out of the presence of the jury to show that Officer Parramore would have testified as follows:

“Q. All right. What did he relate to you, Officer Parramore?
“A. He related that he bought a TV for $45.00 from the deceased and he found out that the TV was hot.
“Q. And by hot, what do yo mean ?
“A. Well, it was stolen.
“Q. All right.
"A. And he tried to get his money back on the TV, and they had some words, and the shooting erupted.
“THE COURT: I didn’t understand you, Officer, that last part I didn’t understand.
“A. They had an argument over the stolen TV, and the defendant tried to get his money back from the deceased and they had an argument over getting the money back and the shooting erupted from that.
“Q. All right. Now, did he say why he wanted to get his money back ?
“A. Because he didn’t want to get in trouble with the parole officer over having a hot — stolen TV.
“Q.' All right, now in your report you also have this, and did the defendant tell you this: ‘The subj ect stated that they started arguing about the TV and he stated that the above victim’, and by that I presume he meant the deceased ?
“A. Right.
“Q. ‘ — did reach in his pocket and brought out an open pocket knife and he stated that he started toward him’, is that correct ?
“A. Yes, sir.
“Q. And is that when the defendant said that, he shot the deceased when he started toward him with an open pocket knife?
“A. Yes, sir, I believe that is correct.” Article 38.24, V.A.C.C.P., provides:
“When part of an act, declaration of conversation or writing- is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

In Williams v. State, 89 Tex.Cr.R. 334, 231 S.W. 110, the Court, in construing then Art. 811, C.C.P. (identical to Art. 38.24, V.A.C.C.P.), said:

“In bill No. 6 complaint is made of the refusal of the court to permit the appellant, upon cross-examination of the officer who arrested him and by whom the state proved certain inculpatory statements were made, to prove that in connection therewith the appellant made other statements of fact which he desired to introduce as exculpatory. As we understand the bill, this testimony was admissible under article 811, Code of Criminal Procedure, in which it is declared that when part of an act, declaration, or conversation is given in evidence by one party, the whole on the subject may be introduced by the other, and where an act or declaration, which is necessary to make fully understood or to explain the same, may also be given by the opposing party. We do not think that the construction of the statute would be correct which would permit the state to prove that the appellant made declarations which led to the finding of the pistol with which the offense was committed, and exclude other declarations made in the same connection which would tend to be exculpatory.”

In the instant case, the prosecutor elicited testimony on direct examination from Officer Parramore that appellant made an oral confession to him in which he admitted a certain gun was the one he used to shoot the deceased. He further testified that as a result of appellant’s confession he was able to recover incriminating evidence. The appellant should have been permitted to inquire of Parramore as to the remainder of the oral confession which contained exculpatory statements concerning the shooting. Art. 38,24, V.A.C.C.P.; Williams v. State, supra; King v. State, 162 Tex.Cr.R. 515, 287 S.W.2d 642; Henry v. State, 106 Tex.Cr.R. 198, 291 S.W. 542; Pharr v. State, 9 Tex.Cr.App. 129.

The circumstances as viewed from appellant’s standpoint at the time he shot the deceased were critical to his claim of self-defense. We cannot conclude that the fact he was able to present his version of the homicide through his testimony and that of his nephew at trial rendered harmless the court’s error in refusing to admit the exculpatory portion of appellant’s oral confession relating to self-defense made shortly after the shooting to Officer Parramore.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . See Art. 38.22, Vernon’s Ann.C.C.P.


text:
    Ronald Avans REED, Appellant, v. The STATE of Texas, Appellee (two cases).
    Nos. 49967, 49968.
    Court of Criminal Appeals of Texas.
    May 21, 1975.
    Tom A. Boardman and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Steve Wil-ensky, Don Briscoll and Bill Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. Me Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from two convictions for aggravated robbery tried together by agreement. Punishment was assessed by the jury at eleven years in each case.

The sufficiency of the evidence to support the convictions is not challenged, and suffice it to note that appellant was identified as the person who robbed Marvin Gales of $10.00 and Otis Boykin of $3.00 at gunpoint in Dallas on the night of January 25,1974.

At the outset, appellant contends that the court erred in admitting a pistol seized in appellant’s car under an unlawful search which deprived appellant of rights secured to him by the Fourth and Fourteenth Amendments to the Constitution of the United States.

Officer McCoy testified at the hearing to suppress that on arrival at an apartment to which he had been dispatched on complaint that a robbery had been committed he observed a man, later determined to be appellant, sitting in an automobile in the driveway. Upon knocking on the door of the apartment, one of the people in the apartment said, “That man in the car just robbed us.” At about the time McCoy knocked on the door of the apartment, appellant started the car and drove into a wall of the apartment complex. As McCoy started toward the vehicle, appellant was backing the car away from the wall and attempting to get it “straightened out so he could get out of the driveway.” McCoy ran after the car and “slapped the side of it yelling ‘Stop, stop.’ ” Appellant did not heed the officer’s demand to stop, and a chase ensued. McCoy, in a police vehicle with both siren and red lights activated, pursued appellant for six blocks before appellant was brought to a stop. McCoy stated that during the pursuit appellant “was bending over arranging stuff inside the car” and, after appellant was stopped and McCoy was beside appellant’s car, “He [appellant] bent over and reached under the front seat.” Appellant did not raise up from this position until McCoy pulled his revolver and said, “Straighten up right now.” At about this point in time, another patrol car arrived, appellant was removed from his vehicle, and McCoy asked Officer Cross, who had just arrived, to “look under the front seat and see what’s there.” Cross removed a .25 automatic pistol, which was later identified as the weapon used in the robberies. At the conclusion of the hearing, the court denied appellant’s motion to suppress. The admission of the pistol into evidence gives rise to appellant’s contention.

In order for a warrantless arrest or search to be justified, the State must show the existence of probable cause at the time the search or arrest is made and the existence of circumstances which made the procuring of a warrant impracticable. Hooper v. State, Tex.Cr.App., 516 S.W.2d 941; Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744.

Probable cause exists where the facts and circumstances within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentalities of a crime or evidence pertaining to a crime. Wood v. State, Tex.Cr.App., 515 S.W.2d 300; Fry v. State, Tex.Cr.App., 493 S.W.2d 758.

Officer McCoy was informed “that man [appellant] in the car just robbed us.” The identification of appellant as the robber was buttressed by the flight of appellant upon the command of the officer to stop and by the movements of appellant observed by the officer during pursuit and after appellant’s vehicle was stopped.

The foregoing circumstances established probable cause, and the factual situation confronting the officers established that exigent circumstances existed requiring the officers to proceed to arrest appellant and search the car for weapons and the stolen money without waiting for a warrant. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Hooper v. State, supra; Borner v. State, Tex.Cr.App., 521 S.W.2d 852.

The court did not errain admitting the evidence seized as a result of the search of appellant’s car.

Appellant contends the trial court erred in failing to grant his motion for mistrial when the State introduced evidence that appellant had committed the extraneous offense of driving a vehicle under the influence of drugs.

The record reflects the following occurred on redirect examination of McCoy:

“Q. . . . Officer McCoy, when you had an occasion to remove the Defendant Reed from his automobile out there on the bridge, I’ll ask you whether or not you had the opportunity to observe and did observe the man’s face, eyes and bodily movements ?
“MR. BOARDMAN: If Your Honor please, I would object to that as being totally irrelevant in regards to the two armed robbery cases on trial at this time.
“THE COURT: Objection overruled.
“O. Did you have an opportunity to observe them?
“A. Yes, I did.
“O. Would you please describe what you observed to the jury ?
“A. Yes, Mr. Reed, the Defendant, was in sort of a state of euphoria. He was real relaxed. His movements were very—
“MR. BOARDMAN: If Your Honor please, I would like to object to the testimony of this witness in regards it shows the possibility of the commission of an extraneous offense, to-wit, driving a car while under the influence of some sort of drug or alcohol.
“THE COURT: Your objection is overruled on those grounds.
“A. (Continuing) His speech was somewhat impaired. His pupils seemed to be dilated to some extent. His eyes were glassy. In my opinion, he was high on some sort of narcotics.
“MR. BOARDMAN: Judge, I object to that. May I take him on voir dire?
“THE COURT: I sustain the objection to the last part of the answer. The jury will not consider it for any purpose.
“MR. BOARDMAN: I respectfully ask the Court for a mistrial in that that statement was so inflammatory and prejudicial. I ask the Court for a mistrial.
“THE COURT: The jury will not consider the last portion of the answer, his opinion that he was high on something for any purpose whatsoever. Motion for mistrial denied.”

In Denny v. State, 473 S.W.2d 503, this Court held that the appearance of the three co-defendants at the time of the arrest was admissible as res gestae. See Walker v. State, Tex.Cr.App., 473 S.W.2d 508; Vavra v. State, 171 Tex.Cr.R. 24, 343 S.W.2d 709. Further, error, if any, was cured by the court’s prompt instruction to the jury not to consider the opinion of the witness that appellant was high on something. Pulido v. State, Tex.Cr.App., 503 S.W.2d 578.

The judgments are affirmed.

Opinion approved by the Court.


author: DALLY, Commissioner.

text:
    Nylie Austin VICTORIA, Appellant, v. The STATE of Texas, Appellee.
    No. 49860.
    Court of Criminal Appeals of Texas.
    May 21, 1975.

      Carver & Carver, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for robbery with a firearm; the jury assessed punishment of imprisonment for thirteen years.

In his second ground of error the appellant has presented the principal question in this appeal. It is whether a witness who has waived her constitutional privilege against self-incrimination when testifying at the trial of one co-defendant may be compelled to testify to the same matters at a later trial of another co-defendant or may she invoke the privilege against self-incrimination and refuse to testify at the second trial. The appellant and Dora Lar-tigue, jointly indicted, and Donald Ray Roberson, in a separate indictment, were charged with committing a robbery with a firearm at a liquor store. Roberson was tried first; his appeal from a conviction for this offense was affirmed. See Roberson v. State, 513 S.W.2d 572 (Tex.Cr.App.1974). In the Roberson case, without granting her immunity the state called Dora Lartigue as a witness; she waived her privilege against self-incrimination and testified. Later in the appellant’s trial he called Lartigue as a witness and attempted to obtain her testimony concerning the same matters to which she testified at Roberson’s trial. Lartigue was permitted to invoke her privilege against self-incrimination as provided by the Fifth Amendment to the Constitution of the United States, and she refused to testify. The court refused to compel her to testify, and for the purposes of his bill of exception the appellant offered a transcription of Lartigue’s testimony at Roberson’s trial.

It should also be noted that the prosecutor immediately before appellant’s trial moved for severance of the prosecutions between the appellant and Lartigue indicating that he intended to dismiss the charges against Lartigue at a later time. A notation on the docket sheet in this record shows that a year after the appellant’s trial the prosecution against Lartigue was placed on the “inactive docket” for a period of six years. Lartigue was serving a probated sentence in another case to be completed in six years.

Lartigue had testified at Roberson’s trial that the appellant had entered the liquor store prior to the robbery to purchase her some “soda water” and that he had not entered the liquor store to “case it” for Roberson and the other two men and that the appellant did not come back to the automobile and report how many people were in the liquor store. This evidence was corroborative of the appellant’s testimony, and it corroborated his denial of the truth of an officer’s testimony concerning a statement the officer said appellant made at the time of his arrest.

The state relies on Davis v. State, 501 S.W.2d 629 (Tex.Cr.App.1973) where it was said:

“Ordinarily, by testifying at a preliminary hearing, at an inquest, before a grand jury or at a previous trial one does not waive his right to claim the privilege against self-incrimination at a later trial.”

The appellant cites us to cases such as United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967), and Franco v. State, 491 S.W.2d 890 (Tex.Cr.App.1973), which hold it error for a trial court to refuse to compel a witness to testify after that witness had already been convicted of the offense about which he was to testify and was no longer subject to criminal prosecution; clearly this case is distinguishable. Here the witness had been indicted for the same robbery but not yet tried, and she was also on probation from an earlier unrelated conviction.

Although Davis v. State, supra, is the only case from this jurisdiction concerned with this question, the weight of authority from other jurisdictions also holds that voluntary testimony before a grand jury, at a prior trial or official proceeding, or other disclosure of the incriminating facts does not waive the right not to be compelled to be a witness against oneself at a later trial or other proceeding. United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971); Ottomano v. United States, 468 F.2d 269 (1st Cir. 1972); United States v. Burch, 490 F.2d 1300 (8th Cir. 1974); In re Neff, 206 F.2d 149 (3rd Cir. 1953); United States v. Miranti, 253 F.2d 135 (2nd Cir. 1958); State v. Solomon, 5 Wash.App. 412, 487 P.2d 643 (1971); Commonwealth v. Fisher, 398 Pa. 237, 157 A.2d 207 (1960); Hummell v. Superior Court, 211 A.2d 272 (R.I.1965); Salem v. State, 305 So.2d 23 (Fla.App.1974); Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377 (1971); People v. Walker, 28 Ill.2d 585, 192 N.E.2d 819 (1963); and 8 Wigmore, Evidence, § 2276.

To the contrary are cases such as Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791 (1969), and In re DeSaulnier, 276 N.E.2d 278 (Mass.1971), which have held that under certain circumstances a witness may be compelled to testify to possibly incriminating facts if at an earlier proceeding the witness knowingly and intelligently waived his privilege against self-incrimination and testified to those same facts. However, both Ellis and DeSaulnier involved prosecution witnesses who had testified before grand juries and then refused to testify at the trials on the indictments returned. Here, Lartigue was a prosecution witness at the first trial but was called by the appellant at his trial. She would have been subject to cross-examination by a different adversary with a different purpose, and factors other than those she and her counsel had considered when waiving the privilege at the first trial could have been introduced.

The facts in United States v. Wilcox supra, are similar. There the witness had testified at the first trial of the defendant but, after the conviction was reversed and remanded, refused to testify for the defendant at the second trial. The Court said there, in affirming the defendant’s re-conviction, that the trial court did not err in refusing to compel the witness to testify and that:

“Although one might conclude that there was a ‘waiver’ as to the exact words stated on the first trial, this does not eliminate the problem. For taking the stand would give the witness little control over the scope or content of examination—direct or cross. And in the circumstances of this case and the witness’ life of crime, taking the stand would expose him to perils when new or different words came out.” 450 F.2d at pp. 1141-1142.

The ground of error is overruled.

In his first ground of error appellant claims that the trial court erred in invoking the privilege against self-incrimination for Lartigue and in allowing the attorney for Lartigue to claim her privilege against self-incrimination for her. He cites Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778 (1933), Campbell v. State, 172 Tex.Cr.R. 431, 358 S.W.2d 376 (1962), and Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971) as authority for the proposion that the privilege against self-incrimination is an individual right and may not be asserted by anyone other than the witness. However, the cases cited to us involve situations .where a defendant was attempting to assert the privilege for a witness who was to testify against him. The record here clearly reflects that Lar-tigue claimed the privilege for herself and through her attorney. Since the privilege was clearly asserted by the witness herself we perceive no error. The appellant did not have the right to interrogate the witness before the jury and have her invoke the privilege when each question was asked. See Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972).

The ground of error is overruled.

In his third ground of error the appellant asserts that the trial court erred in refusing to admit in evidence before the jury the reported testimony of the witness Lartigue given at the previous trial, since Lartigue by invoking her privilege against self-incrimination was unavailable to him as a witness. The appellant offered the prior testimony for the record and it was admitted for his bill of exception. In his brief the appellant has cited the pages of the transcription of the court reporter’s notes in which he claims the request was made that the court reporter be called and be allowed to read the previous testimony. We have searched the record carefully and can find no place where a request was made to present the prior testimony to the jury. In the absence of such a request nothing was preserved for review. Furthermore, the appellant did not and it is doubtful that he could in these circumstances lay a complete predicate for the introduction of the prior reported testimony of Lartigue.

The ground of error is overruled.

The appellant, in his fourth ground of error, claims the trial court committed error by not requiring the state to dismiss the indictment and prosecution against Lar-tigue. Lartigue and the appellant were jointly indicted but the prosecutor moved for and was granted a severance because the indictment was “probably going to have to dismiss the case against her.” The appellant claims on appeal that:

“ . . . [i]f the State had proceeded with its purported claim of dismissal, which was made the basis of their severance, then Dora Lartigue would have been available as a witness for your appellant, and we would have been able to corroborate appellant’s testimony ...”

The indictment pending against Lartigue did not make her unavailable as a witness for appellant. See Articles 38.10, 38.06, and 38.11, Vernon’s Ann.C.C.P. A dismissal of an indictment does not necessarily bar further prosecution, Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973); therefore, her testimony would have been as likely to be incriminating after dismissal as before. A dismissal of Lartigue’s indictment would not have aided the appellant; if Lartigue wanted to invoke the privilege against self-incrimination, she could do so whether or not an indictment was pending.

In the fifth ground of error the appellant complains that “[t]he trial court erred in admitting into evidence Detective Amy’s testimony after a conversation with Dora Lartigue [a] warrant [was] issued for the arrest of Nylie Austin Victoria, Jr., for the reason that the said testimony was hearsay . . . and denied him the right to be confronted with the witness against him.”

In support of this ground of error the appellant directs our attention to the portion of the record which we quote as follows:

“[MR. GIST]:
“Q. And did you transport either one of those two to the police station ?
“A. I don’t recall.
“Q. With reference to Dora Lartigue, did you see her at the police station?
“A. Yes, sir.
“Q. Did you talk with her at that time ?
“A. Yes, sir.
“Q. About how long after the arrest was it that you had conversation with Dora Lartigue, to your best estimate ?
“A. Within thirty minutes.
“Q. All right. After that conversation, Detective Amy, — let me back up one step — was a magistrate called to the police station anytime around this three or three-thirty?
“A. Yes, sir.
“Q. Who was that, do you recall?
“A. I think it was Judge Doucette.
“Q. All right. And after talking with Dora Lartigue, did Judge Doucette issue warrants of arrest for anybody?
“A. Yes, sir.
“MR. CARVER: Your Honor, I object to it. It’s all based on hearsay evidence, what Dora Lartigue—
“MR. GIST: I’m not asking any hearsay questions, Your Honor.
“MR. CARVER: He’s asking what he did.
“THE COURT: Well, if he knows of a transaction of his own personal knowledge he may testify. He may not testify as to what he thinks happened or anything of that sort.
“MR. CARVER: Yes, but he’s testifying to what he based upon hearsay evidence.
“THE COURT: No — overruled.”

Officer Amy did not testify as to what Dora Lartigue told him or the magistrate that led to the issuance of the warrant. Thus, no hearsay was introduced before the jury. Probable cause for the issuance of a warrant may be established by hearsay evidence in an ex parte proceeding. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

No error is shown and this ground of error is overruled.

In his sixth ground of error the appellant complains that the state did not indict Lartigue in good faith but merely for the purpose of depriving the appellant of her testimony. He cites Everett v. State, 122 Tex.Cr.R. 626, 57 S.W.2d 140 (1933), Frazier v. State, 115 Tex.Cr.R. 149, 29 S.W.2d 749 (Tex.Cr.App.1930), and Fagan v. State, 112 Tex.Cr.R. 167, 14 S.W.2d 838 (1929), for the principle that the state may not indict a witness in bad faith to prevent his testifying for the defendant. However, as the state’s brief points out, those cases were decided under Article 711, V.A.C.C.P. (1925), which prohibited principals, accomplices, or accessories from being witnesses for one another. In 1965, Article 711 was repealed and replaced by Article 38.06, V.A.C.C.P. Principals, accomplices and accessories may now be witnesses for one another. See also Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and Article 82, V.A.P.C. (1925). The appellant could and did call Lartigue to testify; however, she claimed her personal privilege against self-incrimination. Her testimony, if incriminating, would have been so whether she was under indictment or not. See discussion, supra, under ground of error four.

The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.