author: BROWN, Commissioner.

text:
    Joe Stanley MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 52442.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      Clyde W. Woody and Leonard M. Roth, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus, R. P. Cornelius, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for attempted voluntary manslaughter. Appellant was tried before a jury which assessed punishment at ten years in the Texas Department of Corrections and a fine of $5000.

In order to properly dispose of appellant’s two grounds of error, a brief statement of the facts will be necessary. The record reflects that the complaining witness, Lynn Snider, and his companion, Bobby Metcalf, arrived at the Sand Pit Lounge near Houston at about 7:30 p. m. on March 30, 1974. Mrs. Mozelle Stockley was the manager of the lounge that night and Metcalf testified that after he and Snider arrived they were served a beer and engaged in a conversation with Mrs. Stockley. Metcalf said that they had heard that Mrs. Stockley was going to be married and they asked her who she was going to marry. She introduced them to two other men, Joe and Bill, and indicated that she was going to marry one or the other of them. The man identified as Joe was later shown to be appellant. Metcalf stated that he and Snider played a game of pool and then ordered another beer to take with them. They left at approximately the same time as appellant and his companion. Metcalf said that as they left appellant asked them if “everything was straight” and that Snider replied affirmatively. Met-calf said he and Snider each got into his own pickup truck and saw appellant and his companion get into another car. They said that appellant’s companion, later identified as Bill Bailey, removed a shotgun from the trunk of the car, pumped it once, waved it around in the air and then put it in the back of the car. Appellant and Bailey then left and Metcalf and Snider returned to the interior of the bar to purchase a pack of cigarettes. Metcalf testified that they again spoke briefly with Mrs. Stockley and then stepped onto the front porch of the lounge to leave when they saw appellant and Bailey drive into the parking lot. Met-calf said that appellant got out of the car and came toward him and that Bailey got out of the car and pulled the shotgun out and aimed it at him and Snider. He further said that appellant then threw a beer glass or bottle at them which crashed against the front door of the lounge. Met-calf stated that Mrs. Stockley was not on the porch with them at the time but stayed inside the lounge and closed the door. Both Snider and Metcalf said that appellant then approached them and challenged them to come down into the parking lot. Metcalf said he suggested to Bailey that he put the shotgun away and that he replied, “I’m not putting the shotgun up and if you move I’m going to blow your f_legs off.” Metcalf said that appellant then pulled a knife and grabbed him by the shirt and slashed at him cutting his shirt sleeve. He said that he pulled back and appellant then turned on Snider, grabbing him by the shirt and stabbing him once in the abdomen and once in the chest inflicting serious wounds to the intestine and heart. He said appellant and Bailey then got into their car and left and he helped Snider back into the lounge where he ordered someone to summon an ambulance. •

Mrs. Stockley testified to a similar sequence of events, except she indicated that Snider was intoxicated and was shouting in the lounge and making derisive comments about her proposed marriage to “Joe.” Mrs. Stockley testified that Joe, appellant, was in fact her brother and that she told Metcalf and Snider she was going to marry him because she thought it would keep Snider from bothering her and causing “static.” She stated that at one point during the evening as they were all playing pool Snider grabbed her around the neck and placed a hand on her breast. She further stated that appellant and Bailey left and Snider and Metcalf left just behind them and then returned and Snider made the remark to her that he did not know “who that son-of-a-bitch is you are fixing to marry, but, he has got a good ass whipping coming.” She said that she asked them to leave and when they got to the front door of the lounge Snider grabbed her by the arm and pulled her onto the front porch. She stated that appellant ordered Snider to leave her alone and then the fight broke out. It was developed on cross-examination that she refused to tell the police who appellant was or what had transpired. Appellant testified in his own behalf and related a similar sequence of events. He stated that he intended to protect his sister from Snider because he thought Snider was giving her a “hard time.”

In his first ground of error appellant contends that the trial court erred in failing to charge the jury on defense of third parties as requested in appellant’s special requested charge. The court charged the jury on the law of attempted murder, attempted voluntary manslaughter, aggravated assault and self-defense. Appellant maintains that the evidence shows he was acting with the intent to protect his sister from harm and he is, therefore, entitled to a charge on defense of a third person.

V.T.C.A. Penal Code, Sec. 9.31, Self-Defense, in Subsection (a) provides:

“Except as provided in Subsection (b) of this section, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.”

V.T.C.A. Penal Code, Sec. 9.32, Deadly Force in Defense of Person, reads:

“A person is justified in using deadly force against another:
“(1) if he would be justified in using force against the other under Section 9.31 of this Code;
“(2) if a reasonable person in the actor’s situation would not have retreated; and
“(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
“(A) to protect himself against the other’s use of or attempted use of unlawful deadly force; or “(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, rape, aggravated rape, robbery, or aggravated robbery.”

V.T.C.A. Penal Code, See. 9.33, Defense of Third Person, provides that:

“A person is justified in using force or deadly force against another to protect a third person if:
“(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 of this Code in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
“(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.”

In the instant case appellant inflicted serious stab wounds on Snider which, according to the treating physician’s testimony, could have resulted in Snider’s death. Under the requirements of the penal code as set out above, such a use of deadly force would be justified only if the circumstances, as they appeared to appellant, led him to a reasonable belief that such action was im mediately necessary to protect his sister. If the evidence supports such a reasonable belief on the appellant’s part, then he would be entitled to the special requested charge on defense of a third person. See Daniels v. State, 152 Tex.Cr.R. 486, 215 S.W.2d 624 (1948).

We note that there is a conflict in the testimony concerning the fight. Met-calf and Snider both testified that Mrs. Stockley was inside the lounge and had closed the door when appellant approached them and hurled the beer bottle at them. They both testified that they were unarmed and that appellant’s companion held the shotgun on them during the attack. Both men stated that while Snider did speak with Mrs. Stockley, he never grabbed her or assaulted her in any way. Mrs. Stockley, on the other hand, stated that Snider did grab her around the neck and touched her breast and that he later grabbed her and pulled her out the front door onto the porch. She also stated that Snider had a beer bottle in his hand at the time of the fight. Most important, however, are the circumstances as perceived by the appellant. He testified that Snider had been giving his sister “static” during the evening and that he and Bailey returned to the lounge because he was afraid Snider and Metcalf had gone back to give his sister “a hard time.” He stated that he saw appellant grab his sister at the front door and that he put his arm around her neck and had a beer bottle in his hand. He said that he ordered Snider to leave her alone and then hurled the bottle at him. He further stated that he met Snider at the bottom of the steps to the porch and that Snider was still holding a bottle, so he pulled his pocket knife and stabbed him. On direct examination the following colloquy took place between appellant and his counsel:

“Q (By Mr. Robinson, defense counsel): Well, what did it appear to when you saw your sister being, shall we say, manhandled there by this man?
“A From where I was at I couldn’t tell whether he was hitting her with the bottle or what was going on.
“Q Then did you decide to take immediate action?
“A Yes, sir, I did.”

Later, on cross-examination, the appellant testified as follows:

“Q (By the State’s attorney): Now, when (Snider) started coming down the steps there, as you put it, were you in fear of your life?
“A Yes, sir, I was.
“Q What did you think (he) was going to do?
“A Hit me with the beer bottle.
“Q Now, at the time he started to walk down the steps and you started to walk to the steps, your sister was back in the club, wasn’t she? He had thrown her back in the door?
“A Right.
“Q He wasn’t even looking at her, was he?
“A When I hollered at him, no.
“Q So surely, by the time you stabbed him your sister wasn’t in any danger at all. She was back inside the club and he was at the bottom of the steps?
“A She wasn’t in danger then, no, I was.
“Q So when you stabbed him, it’s your testimony that your sister was in no danger at all?
“A She was previously, yes.
“Q But at the time that you stabbed him she wasn’t in any danger?
“A No, she wasn’t, no.
“Q And the only danger that you were in was you were afraid that he might hit you over the head with a beer bottle and it might cut you?
“A This is true.”

As set out above, the facts and circumstances must be judged from the viewpoint of the appellant. V.T.C.A. Penal Code, Sec. 9.33; see Jones v. State, 544 S.W.2d 139 (Tex.Cr.App., No. 52,079, decided December 8, 1976) and Baldridge and Baugh v. State, 543 S.W.2d 639 (Tex.Cr.App., decided December 1, 1976). While the appellant’s testimony clearly raises the issue of self-defense, we think it is also shown that any alleged danger to Mrs. Stockley had passed and that appellant could no longer have had the reasonable belief that his intervention was “immediately necessary” to protect his sister.

The situation is somewhat similar to Williams v. State, 170 Tex.Cr.R. 599, 343 S.W.2d 266 (1961), in which the accused, his brother Robert, and the deceased were in disagreement about five dollars from a dice game. Robert and the deceased were engaged in a scuffle over the money and the accused pulled a pistol and waved it in the air and told his brother to step back. When Robert moved back from the deceased, a bystander told the accused not to shoot and the accused told him to be quiet or he would be shot. The accused then shot the deceased. This Court held that the accused was not entitled to a charge on the law of justifiable homicide to prevent robbery, self-defense or defense of another, stating,

“The evidence fails to raise the issue that when he shot the deceased, appellant believed himself or anyone present to be in danger of death or serious bodily injury at the hands of the deceased . . . ”

In the earlier case of Conn v. State, 143 Tex.Cr.R. 367, 158 S.W.2d 503 (1942) it was shown that the deceased had grabbed his wife by the arm and when she tried to get away, he tore her dress. However, this Court held that the accused was not entitled to a charge on defense of a third person because there was

“no other hostile act or demonstration on the part of the deceased toward the wife . which would indicate that the deceased was making an attack upon his wife which would reasonably create in the mind of the appellant an apprehension that the deceased was about to inflict death or serious bodily injury upon her . . . ”

In the instant case, the evidence raises the issue of self-defense and the court properly instructed the jury on that issue. However, by appellant’s own testimony, there was no danger to his sister which would raise the issue of defense of a third person and the trial court did not err in failing to charge the jury on that issue.

Appellant’s first ground of error is overruled.

In his second ground of error appellant complains of several instances of allegedly improper jury argument. This ground of error is multifarious and not in compliance with Article 40.09, Vernon’s Ann.C.C.P. Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976); Rodriquez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975). We have reviewed the prosecutor’s argument in its entirety and find that in eight instances cited by the appellant as allegedly improper argument no objection was made and in one other instance the objection was sustained and appellant requested no further relief. See Smith v. State, 541 S.W.2d 841 (Tex.Cr. App.1976) and Greer v. State, 523 S.W.2d 687 (Tex.Cr.App.1975). The final instance of allegedly improper argument involved a statement that Mrs. Stockley should have called the police if Snider was creating a disturbance. Appellant objected on the basis that the evidence showed that Mrs. Stockley had called the police. Appellant’s objection was overruled. The evidence shows that Mrs. Stockley did summon the police after the stabbing and the prosecutor’s remark concerned her failure to summon them before the stabbing when Snider allegedly created a disturbance in the lounge. The trial court did not err in overruling appellant’s objection.

Appellant’s second ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: BILL J. CORNELIUS, Commissioner.

license: Public Domain

text:
    Audrey SHEPPARD, Appellant, v. The STATE of Texas, Appellee.
    No. 52481.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Rehearing Denied Feb. 9, 1977.

      Calvin W. Wesch, Kermit, Robert Trench-ard, Jr., Odessa, for appellant.
    James A. Mashburn, Dist. Atty., Jack K. (Rusty) Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BILL J. CORNELIUS, Commissioner.

Appellant was charged with first degree murder in the shooting of her husband, Delmir Sheppard. The jury found her guilty of the lesser included offense of voluntary manslaughter and assessed punishment at twenty (20) years’ confinement.

According to the State’s evidence, officers of the Midland Police Department received a call to come to a mobile home occupied by Mr. and Mrs. Sheppard. When the officers arrived they found appellant, her two small children and her husband who had died from several bullet wounds in his head. They also found a pistol which was identified as the one used to shoot the deceased. At first appellant stated that someone had entered their trailer and shot her husband, but she later admitted to the officers that she had shot him.

Appellant contended that she acted in self-defense. She produced evidence of numerous previous beatings of her by the deceased during or after his drinking sprees. She testified that on the day of the killing her husband went to town about 5:30 in the afternoon to look for a pipe trailer. About 7:15 that evening, the deceased returned with a half-pint of scotch and instructed appellant to mix him a drink. Between that time and about 9:00 in the evening, appellant and the deceased watched television while drinking the half-pint of scotch. The deceased then suggested that they go for a ride. Appellant got the two children ready and all of them got into their station wagon and drove to town. They went to a 7-11 store, picked up a six-pack of beer and drove around while drinking the beer. Later they returned to the same 7 — 11 store and bought another six-pack of beer. On the way home they stopped at two different bars where they continued to consume alcoholic beverages. By this time it was late in the evening. When they finally left to go home, an argument ensued during which the deceased threatened appellant. Upon arriving home, appellant put the two children to bed and prepared a leftover dinner for her husband. While he was eating dinner, he kicked her several times. When he finished he suggested that they go to bed and that everything would be alright. He laid down on the bed in his shorts and t-shirt but the argument commenced again. As appellant sat down on the bed, the deceased started hitting and kicking her again and threatened to “kick her head in.” He continued to threaten appellant and indicated that if “he didn’t do it now he would do it sometime in the future.” At this point, appellant got up from the bed, got the deceased’s loaded .22 caliber pistol from the top of the chest of drawers approximately six feet from where she was sitting and then walked back to the bed. As she reached the bed, the deceased started to come up out of the bed at her. Appellant testified that she then commenced shooting at the deceased. The evidence showed that as many as nine shots were fired with as many as six to eight bullets hitting the deceased in the head.

To rebut appellant’s self-defense theory, the State produced medical witnesses who testified that the deceased had an alcohol level of .74 in his blood, and that with such an amount he must have been unconscious from alcohol at the time of his death and could not have attacked or threatened the appellant.

Appellant relies upon four grounds of error for reversal. The first contends that the court erred in refusing to grant a mistrial when the prosecutor, in violation of a motion in limine, questioned appellant about a prior marriage of hers. During cross-examination the following exchange took place:

“Q (By Mr. Mashburn): All right, I’ll start back in 1967, I think on my notes is when you met Mr. Sheppard, is that correct?
“A Yes.
“Q Were you married at that time?
“A Yes, I was.
“Q Who were you married to?
“A An Indian from North Dakota.
“Q What was his name?
“A Meredith Baker.
“MR. TRENCHARD: Your Honor, I am going to object to this. We have a motion in limine as to prior marriage, and the Court has sustained that motion in limine. And I will ask the Judge to instruct the Jury not to regard the last questions and answers for any purpose whatsoever.”

Proof of prior marriages and divorces is not admissible unless such evidence tends to solve some disputed issue in the case. Boyde v. State, 513 S.W.2d 588 (Tex.Cr. App.1974); Hatke v. State, 455 S.W.2d 310 (Tex.Cr.App.1970). But an error in asking an improper question or in admitting improper testimony may generally be cured or rendered harmless by its withdrawal and an instruction to disregard the same. Except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds, such an error will not call for a reversal of the judgment. Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971); White v. State, 444 S.W.2d 921 (Tex.Cr.App. 1969). In this case appellant’s objection to the question was sustained and the court instructed the jury not to consider the question or answer for any purpose. Considering the record here, we do not find the error to be of such a prejudicial nature as to require reversal despite the instruction. Ground of error No. 1 is overruled.

Ground of error No. 2 complains of a remark by the prosecutor while he was stating an objection. During the direct examination of the witness Mrs. Shrupp, she testified that the deceased was violent at times and that she was afraid of him. At that time the prosecutor objected and made the following comment:

“MR. MASHBURN: May it please the Court — excuse me, Counsel. We have no objections to going in with the ruling of the Court pertaining to this. This witness is testifying to events that occurred five years prior to the time we are now in trial, and three years prior to this. And we object. It shows no relevancy. The State is not allowed to go into specific acts of bad conduct concerning — ”

The objection was overruled. It is contended that by the above comment the impression was given to the jury that appellant had a history of bad conduct which the State was precluded from exploring. The comment should not have been made, but in view of the fact that appellant was not on the stand at the time, the prosecutor’s comment was not completed, and considering the overall record, we conclude that appellant was not harmed.

In grounds of error 3 and 4 appellant contends that the court erred in refusing her special requested instructions relating to self-defense. She requested charges on (1) her right to strike first and (2) the right to arm herself. The charge on self-defense which was given by the court was as follows:

“Upon the law of self defense you are instructed that a person is justified in using force against another when and to the degree she reasonable (sic) believes the force is immediately necessary to protect herself against the other’s use or attempted use of unlawful force.
The use of force against another is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another:
(1) if she would be justified in using force against the other; and
(2) if a reasonable person in the defendant’s situation would not have retreated; and
(3) when and to the degree she reasonably believes the deadly force is immediately necessary:
(a) to protect herself against the other’s use or attempted use of unlawful deadly force.
Now if you find from the evidence beyond a reasonable doubt that the defendant, Audrey Sheppard, did kill the said Delmir Morris Sheppard by shooting him with a gun as alleged, but you further find from the evidence that, viewed from the standpoint of the defendant at the time, from the words or conduct, or both, of Delmir Morris Sheppard, it reasonably appeared to her that her life or person was in danger and there was created in her mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Delmir Morris Sheppard, and that acting under such apprehension and reasonable belief that the use of deadly force on her part was immediately necessary to protect herself against Del-mir Morris Sheppard’s use or attempted use of unlawful deadly force, she shot the said Delmir Morris Sheppard, and that a reasonable person in defendant’s situation would not have retreated, then you should give the defendant the benefit of that doubt and say by your verdict ‘Not Guilty.’
If you find from the evidence beyond a reasonable doubt that at the time and place in question the defendant did not reasonably believe that she was in danger of death or serious bodily injury, or that a reasonable person in defendant’s situation at the time and place in question would have retreated before using deadly force against Delmir Morris Sheppard, or that defendant, under the circumstances as viewed by her, did not reasonably believe that the degree of force actually used by her was immediately necessary to protect herself against Delmir Morris Sheppard’s use or attempted use of unlawful deadly force, then you should find against the defendant on the issue of self defense.”

The appellant requested the following special charge:

“You are instructed that if Delmir Sheppard was in the act of inflicting serious injury on the Defendant by some act on his part then done, the Defendant was not required to wait until the injury was actually inflicted, but she would have the right to strike before she received the violence, if any.”

The requested charge on the right to strike first was unnecessary because the charge as given, particularly that portion relating to appellant’s reasonable belief that deadly force was immediately necessary to protect herself, adequately preserved her rights in that regard. When the charge refused is substantially the same as or is adequately covered by the charge given, no harm is shown. Aranda v. State, 506 S.W.2d 221 (Tex.Crim.App.1974); Estrada v. State, 479 S.W.2d 316 (Tex.Crim.App.1972).

Appellant’s requested charge on the right to arm herself was as follows:

“You are instructed further in connection with the law of self-defense that if you find from the evidence that shortly prior to the killing the Defendant reasonably apprehended an attack upon her person by the deceased, then the fact that the Defendant armed herself with a gun would in no wise impair or lessen her right of self-defense because she would have a right to so arm herself if she reasonably feared such an attack.”

When an unlimited charge on self-defense is given, a charge on the right of the accused to arm himself is not required. Williams v. State, 162 Tex.Cr.R. 403, 285 S.W.2d 723 (1955); Pierson v. State, 160 Tex.Cr.R. 567, 272 S.W.2d 901 (1954); Green v. State, 155 Tex.Cr.R. 441, 236 S.W.2d 139 (1951). But as stated in many decisions of this Court, if the charge on self-defense is limited by “a charge on provoking the difficulty or otherwise’’, a charge on the accused’s right to arm himself should be given. See Young v. State, 530 S.W.2d 120 (Tex.Crim.App.1975) and cases there cited. The trial court here did not charge on provoking the difficulty, but appellant contends that because the charge contains the new Penal Code’s modifications of the right of self-defense relating to retreat and the use of deadly force, the charge was a limited one, and that the instruction on the right to arm should have been given. We do not agree. The court’s charge on self-defense was not limited in its general language. It was as full and broad a charge as is permitted by the present law of self-defense. Neither was it limited in its application of the law to the specific facts. Appellant’s theory of self-defense, so far as it was raised by the evidence, was presented without limitation. In essence the charge, both generally and as to the elements of retreat and deadly force, held appellant to a standard of reasonable conduct based upon her reasonable fear of death or serious bodily injury, viewed from her standpoint at the time. That includes her reasonable belief, under the circumstances, that it was necessary to secure the pistol and to use its deadly force to protect herself.

The rule requiring a charge on the right to arm grew out of cases where the accused sought out the victim for the purpose of correcting a wrong or demanding an explanation. In such a case, the charge on self-defense is usually limited by a charge on provoking the difficulty, because the accused is the initiator of the confrontation. In that situation, however, the accused is still entitled to that limited right of self-defense even though he brought a weapon to the confrontation, and the jury should be so instructed. But in the absence of such a factual situation, we do not believe a charge on the right to arm is required merely because the charge instructs on deadly force and the obligation to retreat. The reason for the special charge is not present in such a case. See Yancy v. State, 108 Tex.Cr.R. 39, 298 S.W. 908 (1927); Byler v. State, 106 Tex.Cr.R. 570, 294 S.W. 205 (1926); Minor v. State, 105 Tex.Cr.R. 189, 287 S.W. 256 (1926); Strickland v. State, 71 Tex.Cr.R. 582, 161 S.W. 110 (1913); Brown v. State, 65 Tex.Cr.R. 121, 144 S.W. 265 (1912); Duke v. State, 61 Tex.Cr.R. 19, 133 S.W. 432 (1911); Harrelson v. State, 60 Tex.Cr.R. 534, 132 S.W. 783 (1910). We therefore hold that, in the absence of a charge on provoking the difficulty, the inclusion in the charge of an instruction on the law of retreat and the use of deadly force is not such a limitation of the right of self-defense as requires the giving of a special charge on the right to arm. Grounds of error No. 3 and No. 4 are overruled.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

      . Dr. Martha Madsen testified the .74 grams percent of alcohol was extremely high and she had not seen a case where the blood alcohol was that high previously. She related that her later research revealed cases in New York City where alcohol levels ranged from ,7 to 1.0 where the individuals were still alive. She indicated that prior to the time of this case she thought the highest percentage of blood alcohol before a person’s death would be .35 to .40.


author: DALLY, Commissioner.

text:
    Ronald Frank MYRE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52676, 52677.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      W. John Allison, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John Tatum, Bob Hinton and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These appeals are from convictions for the offense of aggravated robbery; the punishment in each case is imprisonment for 75 years.

The appellant contends that the State willfully failed to disclose evidence favorable to him. This contention arises out of a “Gaskin rule” error. Officer R. C. Johnson had made a prosecution report; it was a summary of witnesses’ expected testimony taken from the offense reports made by other officers, and it was also a summary of the circumstances in which the appellant made written pre-trial confessions to Johnson.

Johnson testified out of the presence of the jury in a hearing to determine whether the appellant’s confessions were voluntary. Article 38.22, V.A.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). After Johnson had testified on direct examination defense counsel requested a copy of the prosecution report prepared by Johnson for use in his cross-examination. The prosecutor’s objection was sustained. The record reflects that the report was denied defense counsel because Johnson had not refreshed his memory from the report prior to testifying.

It was error not to permit counsel the use of the report even though it had not been used by Johnson to refresh his memory. Hoffman v. State, 514 S.W.2d 248 (Tex.Cr. App.1974); White v. State, 496 S.W.2d 642 (Tex.Cr.App.1973); Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972); Gaskin v. State, 353 S.W.2d 467 (Tex.Cr.App.1962). However, the record reflects that prior to the closing of the evidence the report was tendered to the defense counsel and he had an opportunity to interview Johnson after reading the report.

The appellant points out that Johnson testified before the court in the Jackson v. Denno hearing that he did not make Polaroid camera photographs of the appellant prior to taking the confessions. The report showed that Johnson did make Polaroid camera photographs of the appellant prior to taking the appellant’s confessions. It is argued that the delay in tendering the report resulted in the defense using tactics that were not as effective as if the report had been made available at the proper time. Counsel asserts that if the report had been available at the proper time Johnson could have been impeached by its use. The appellant says then he would have testified before the jury, to raise before it the issue of the voluntariness of the confessions. In view of the record presented, including the prior convictions of the appellant, which would have become admissible, and the strength of the eyewitness’ identification testimony, it is rather speculative to say that the delay in furnishing the report to defense counsel would have greatly changed the strategy and tactics used in the trial. The report was furnished before the testimony was closed. Defense counsel could have recalled Johnson for cross-examination and he could have then offered the appellant’s testimony. We do not take the argument advanced here on appeal lightly, but we are convinced in light of the whole record, reversible error is not presented.

A more serious problem would be presented if it appeared that it was the State’s intentional trial tactic to delay furnishing the report to defense counsel. The record reflects, however, that the State and the court, although wrong, were in good faith in believing that the Gaskin rule did not require that the report be made available to defense counsel when the witness had not refreshed his memory from the report. This misconception about the Gaskin rule has been explained in Hoffman v. State, supra; White v. State, supra; and Zanders v. State, supra. The State did not willfully fail to disclose evidence favorable to the appellant and the delay in furnishing defense counsel the report in these circumstances was not reversible error. See Sheldon v. State, 510 S.W.2d 936 (Tex.Cr.App. 1974).

The appellant contends that the court erred in ruling that appellant’s confession was voluntary and in failing to charge the jury on the issue of its voluntariness. In compliance with the requirements of Article 38.22, V.A.C.C.P., and Jackson v. Denno, supra, the court held a hearing outside the presence of the jury to determine whether appellant’s confession was voluntary.

We will summarize the evidence. Officer Johnson was investigating the robbery of Bonnie Bailey at Bonnie’s Drive-in grocery. He worked the 4:00 p. m. to midnight shift. On May 31, 1975, he was told that the appellant was in jail charged with the robbery of Sandra Tharp at a One Hour Mar-tinizing laundry. At about 11:30 p. m. Johnson brought appellant from the jail to question him concerning the robbery of Bonnie Bailey. Johnson told appellant he thought that appellant was involved in other robberies. When appellant started discussing the robbery at the grocery store, Johnson read appellant his constitutional rights as they are printed on the forms used to take an accused’s confession. The form contains the warnings required by Article 38.22, V.A.C.C.P. and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After he read appellant his rights, Johnson testified that he asked appellant if he understood them and appellant said that he did and wished to make a statement. Johnson took appellant’s statement down in longhand, read this back to appellant, then had it typed on the forms. Thereafter, Johnson read the statement, including the printed warning at the top, to the appellant and he signed it. The same procedure was followed in obtaining appellant’s confession to the robbery at the laundry. Johnson stated that he did not take appellant before a magistrate because he did not think one would be available at that late hour. It took approximately an hour and a half to two hours to take the statements.

Appellant testified at the hearing for the limited purpose of contesting the voluntariness of his statements. He stated that he was arrested between 2:00 p. m. to 3:00 p. m. on May 31,1975, and placed in jail about 6:00 p. m. He ate supper in the jail. At approximately 11:30 p. m. Officer Johnson took him to the interrogation room at the police department. He was photographed and told that they would show the pictures to witnesses. Appellant stated that Officer Johnson thumbed through a large book that listed robberies, told him they had filed charges against him for the robbery at the grocery store, and that they thought he had committed five or six armed robberies. He said he was asked if he wanted to make a statement or have his attorney present. When he told Johnson he wanted a lawyer, the officer told him he would be furnished one when he was transferred to County Jail. Appellant testified that when he said he didn’t want to make a statement Officer Johnson slapped him off the chair and told him to get his business straightened up or they were going to file more charges. The officer left the room and was gone about fifteen to twenty-five minutes. When he came back he had in his hands a piece of white paper with writing on it. Appellant said that when he refused to sign it Johnson hit him again, twisted his arm behind his back, and said if he didn’t sign it something a lot worse would happen. Thereafter, the appellant signed the statement, but said it was not read to him and he was not allowed to read it. He stated that he never saw the woman who signed the statement as a witness. Appellant further testified that Johnson never advised him of his rights, but that the officer who arrested him did read part of his rights. He said he was not taken before a magistrate until the next day. Appellant said that he did not sign the statement freely or voluntarily, but under harassment and abuse.

On cross-examination appellant admitted that he had previously been convicted of four cases of armed robbery and sentenced to fifteen years in prison on each case in 1966. Thereafter, Officer Johnson was recalled and denied each fact about which the appellant testified. In response to questions by the court Johnson denied each of the allegations of abuse, coercion, and threats.

The court overruled appellant’s objections to the confessions and admitted them into evidence. Thereafter, the court filed written findings of fact and conclusions of law. The court found beyond a reasonable doubt that appellant had been advised of his rights; that he understood them and knowingly, voluntarily, and intelligently waived his rights; that the statements were his voluntary statements; and that the statements were made in full compliance with Texas and Federal law and were therefore admissible.

The judge at the Jackson v. Denno hearing is the sole judge of the weight and credibility of the witnesses. He may choose to believe or disbelieve all or part of any witness’ testimony. Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974). The evidence raised an issue of fact as to the voluntary nature of appellant’s statements. There was ample evidence to support the trial judge’s findings and we sustain the trial court’s decision that the confession was voluntary and admissible in evidence. Short v. State, 511 S.W.2d 288 (Tex.Cr.App. 1974). The fact that appellant was not taken before a magistrate until'after he gave his statement does not vitiate a confession that is otherwise properly obtained. Unreasonable delay in bringing an accused before a magistrate only renders the confession inadmissible upon a showing of some causal connection between the delay and the making of the confession. There is no such showing here. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Lester v. State, 490 S.W.2d 573 (Tex.Cr.App.1973).

Appellant also contends that the court erred in refusing to charge the jury on the voluntariness of the confessions. Appellant did not testify before the jury; he did not call any witness on the issue, and there was no evidence before the jury which raised the issue of voluntariness. The court did not err in refusing the charge. Morgan v. State, 502 S.W.2d 722 (Tex.Cr.App.1973); Mosley v. State, 494 S.W.2d 557 (Tex.Cr.App.1973).

Complaint is made that the trial court erred in refusing to allow the appellant to testify before the jury for the limited purpose of controverting the voluntariness of his confession. When an accused voluntarily takes the stand before a jury he is subject to the same rules as any other witness. He may be contradicted, impeached, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of the defendant, except when some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the present case or his failure to testify on a former trial or hearing. Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969). It has been the consistent rule for many years that an accused may not take the witness stand before a jury for a limited purpose. Gonzales v. State, 160 Tex.Cr. 548, 272 S.W.2d 524 (1954); Rubens v. State, 166 Tex.Cr. 71, 311 S.W.2d 242 (1958); Brumfield v. State, supra, and cases cited therein.

The rule in Lopez v. State, 384 S.W.2d 345 (Tex.Cr.App.1964), and subsequent cases, that an accused may take the stand in a preliminary hearing to determine the voluntariness of his confession is an exception to this general rule. This exception is necessary because an accused may be deterred from testifying on the voluntariness issue before the jury because of his vulnerability to impeachment by proof of prior convictions and broad cross-examination. The fear of such impeachment may induce a defendant to remain silent, although he is perhaps the only source of testimony on the facts underlying the claim of coercion. Jackson v. Denno, supra, footnote 16. This Court noted the distinction pointed out in Jackson v. Denno between the credibility of the confession (which is for the jury) and the admissibility of the confession (which is determined by the judge alone). Lopez v. State, supra, 384 S.W.2d at 348. We hold that an accused may not take the stand before the jury for the limited purpose of contesting the voluntariness of his confession. If he testifies before the jury he is subject to cross-examination the same as all other witnesses.

Appellant contends that the court erred in admitting evidence obtained as a result of an illegal search and seizure. He complains of the admission of State’s Exhibit No. 1, a bank bag, and State’s Exhibit No. 2, a .22 caliber pistol. The arresting officer, R. L. Reid, testified that on May 31, 1975, he received information concerning an armed robbery that had taken place at the One Hour Martinizing laundry. The information included the appellant’s name, an address, and an automobile license plate number. The officer observed the automobile bearing the license plate number in question in front of a home with the address he had been given. The appellant was standing in front of the automobile with the hood up, and he appeared to be working on the automobile. When appellant identified himself as Ronald Myre and the owner of the automobile, the officer called him over to the police car. The officer explained why he was there, placed the appellant under arrest and searched his person for weapons. As a result of the search the officer found State’s Exhibit No. 2, a fully loaded .22 caliber pistol, inside appellant’s left boot. One of the investigating officers, Stanley L. McNeer, while standing on the street, looked into appellant’s automobile and saw a bank bag in plain view. At his request another officer retrieved the bag which was identified at trial as State’s Exhibit No. 1. Sandra Tharp identified the bank bag as the one appellant told her to put all of the money from the cash register into.

Police broadcasts, based on probable cause, reporting a felony and a description of the suspect satisfy the requirements for arrest under Article 14.04, V.A.C.C.P.; Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App. 1975), and cases cited therein. Sandra Tharp stated that she gave the police officers a description of the robber and the license plate number of the automobile in which the robber left. Officer Wesley Bradshaw testified that he arrived at the One Hour Martinizing laundry approximately three to four minutes after the robbery of Sandra Tharp. As a result of his investigation the license plate number of the suspect’s automobile was broadcast over the police radio.

The information known to Officer Bradshaw was sufficient probable cause, to arrest the appellant. When this information was broadcast over the police radio, Officer Reid was authorized to arrest the appellant. The search of appellant incident to the lawful arrest was clearly authorized and the gun was admissible in evidence. Guzman v. State, supra; Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974); Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.1975). The bank bag was in the automobile which appellant used to flee the scene of the robbery and in plain view of the officer as he was standing on a public street pursuant to a lawful arrest and investigation. Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App. 1976), and cases cited in footnote 4. No error is presented.

Appellant contends the court abused its discretion in denying his motion for the appointment of an investigator to locate two alibi witnesses. Article 26.05(d), V.A.C.C.P., provides compensation “for expenses incurred for purposes of investigation and expert testimony . . . ” (Emphasis added). It is within the discretion of the trial court whether or not to provide compensation for expenses incurred for purposes of investigation. Appellant’s counsel has not shown he incurred any such expenses. Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1975); Eggleston v. State, 422 S.W.2d 460 (Tex.Cr.App.1967).

Appellant filed a motion for continuance in order to locate the missing witnesses on October 28,1975, after the State had rested its case. The record reflects that a subpoena for one witness was not issued until October 27th, the day before trial. Appellant admitted that he was the only one that could find the witness and that a private investigation would not help. Appellant has not shown he was harmed by the court’s action in refusing to appoint an investigator. The court did not abuse its discretion. Chamberlain v. State, 453 S.W.2d 490 (Tex. Cr.App.1970); Shelton v. State, 462 S.W.2d 285 (Tex.Cr.App.1970).

Appellant also says that the court erred in admitting improper hearsay testimony before the jury. Sandra Tharp, the complaining witness in the robbery at the One Hour Martinizing laundry, testified that after appellant stole the money from her at gunpoint he made her lie down on the floor in the back of the laundry. When she heard the door close she ran to the front of the shop just as a customer came in who had seen the robber leave. She told the customer, who she later learned was Jerry Beacroft, “Could you follow that man? He has just robbed me and he has a gun; be careful.” The customer ran out the door and she called the police. The court permitted her to testify, over appellant’s objection that the customer told her the license plate number of the robber’s car was HDG 145.

Appellant contends this was hearsay. We agree. The out-of-court statement was offered to prove the truth of the matter asserted therein. The court ruled that the statement was res gestae of the offense. The statement may well have been an excited utterance, an exception to the hearsay rule; however, in the record before us a sufficient predicate was not laid for us to determine whether the statement was in fact an excited utterance. The State contends that the statement was a present sense impression. It was not admissible as a present sense impression because the witness did not have an equal opportunity to observe and check a possible misstatement of Beacroft. See Anderson v. State, 454 S.W.2d 740 (Tex.Cr.App.1970); McCormick, Law of Evidence, Sec. 298 (2d ed. 1972).

A judgment will not be reversed for error in the admission of evidence that did not injure the appellant. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973). The convictions are supported by positive eyewitness identification, the appellant’s written confessions, and physical evidence in the possession of the appellant when he was arrested that connected him with the offense. Therefore, the admission of the hearsay testimony was harmless error.

The judgments are affirmed.

Opinion approved by the Court.


author: PHILLIPS, Judge. DOUGLAS, Judge

text:
    Larry William IVY, Appellant, v. The STATE of Texas, Appellee.
    No. 53371.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      C. David Evans and W. Allan Craig, San Antonio, for appellant.
    John H. Flinn, Dist. Atty., Sinton, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation wherein appellant stands convicted of the offense of theft over $50.00, with the sentence being assessed at four years’ imprisonment.

On March 24, 1971, appellant entered a plea of guilty to the court and punishment was assessed at five years, probated. The order of probation contained, among others, the following terms and conditions of probation:

“5. Report in person or by letter to Sheriff of San Patricio County, at Sinton, Texas, on the first Saturday of each month;
10. Report immediately any change of address, change of job or arrest to the Sheriff of San Patricio County;
12. Pay restitution in the amount of $690.00 to the Sheriff of San Patricio County, Texas, for the benefit of Hessie Reed, Aransas Pass, Texas, at the rate of $25.00 per month, the first payment of $25.00 due and payable the 1st day of May, 1971, and a like amount due on the 1st day of each month thereafter until full restitution has been made.
13. Pay to the Sheriff of San Patricio County a statutory supervisory fee of $10.00 each month, payment being made with report on the first Saturday of each month. First payment due May 1, 1971.”

On November 5, 1975, the State filed its motion to revoke, alleging that appellant had “failed to report in person or by letter to the Sheriff of San Patricio County" since October of 1971; that appellant had failed to report any “change of address, change of job or arrest to the Sheriff of San Patricio County,” and that appellant had also failed to pay the balance of $505.00 of restitution and the balance of $480.00 of statutory supervision fees to the “Sheriff of San Patri-cio County”. The trial court, after hearing the evidence, entered findings of fact revoking on all four alleged violations.

Appellant’s first ground of error challenges the sufficiency of the evidence to support each of the alleged findings.

Appellant initially contends that the evidence is insufficient to show his ability to make the restitution and supervisory fee payments required, or that the failure to pay the balance of the restitution and supervisory fees was intentional or willful.

The record is devoid of any evidence concerning appellant’s ability to pay, or showing that the failure to make such payments was willful or intentional. Therefore, the order of revocation cannot be supported on the basis of failure to make the restitution or supervisory fee payments. See Cotton v. State, Tex.Cr.App., 472 S.W.2d 526; Gormany v. State, Tex.Cr. App., 486 S.W.2d 324; Herrington v. State, Tex.Cr.App., 534 S.W.2d 331, and cases cited therein.

We next consider the sufficiency of the evidence to support the trial court’s findings that appellant failed to report (probation report, change of address, change of job, or arrest) “in person or by letter to the Sheriff of San Patricio County” as required by the terms and conditions of probation.

The State failed to call the Sheriff of San Patricio County, the Honorable Wayne Hitt, during the revocation hearing. In lieu of the duly-elected sheriff’s testimony, the State called the chief jailer and chief deputy sheriff to testify. The jailer stated that he had worked with the sheriff’s department since 1967 and that he did not have anything to do with reporting by probationers to the sheriff’s office. Although the chief deputy sheriff indicated that appellant had never reported nor paid supervisory fees to the sheriffs department, there is no showing in this record that he had any responsibility, authority or knowledge concerning the sheriff’s probation activities, or that he was qualified as the custodian of any records of any probationer. Under these circumstances, we hold that the testimony of the sheriff’s office employees has no relevancy to the disposition of this case.

In addition to the sheriff’s employees, the State called the past and present adult probation officers of San Patricio County, both of whom testified that appellant had neither reported nor paid any restitution or supervisory fees to them. Is the testimony of the probation officer sufficient to revoke under the facts of this case? We conclude that it is not.

The record affirmatively shows that the terms and conditions of appellant’s probation required that he report in person or by letter to the Sheriff of San Patricio County, and there is no showing that these terms and conditions were ever altered or modified by the trial court to transfer appellant’s probation supervisory duties to the adult probation department rather than the sheriff. As previously mentioned, the sheriff did not testify, and it is not shown that either of his employees was qualified to testify concerning the activities of any probationers. There is no showing that the probation officers had any personal knowledge of the appellant’s failure to report directly to the sheriff, as required by the terms and conditions of probation.

Absent some notice to the appellant, or at least a showing that appellant acknowledged and accepted an improper delegation of authority, appellant’s probation cannot be revoked for failing to report to the probation officer since it was never shown that he was required to report to the probation department rather than to the sheriff. See Brown v. State, Tex.Cr.App., 508 S.W.2d 366; Stevenson v. State, Tex.Cr.App., 517 S.W.2d 280; Ross v. State, Tex.Cr.App., 523 S.W.2d 402. The testimony of the probation officers is insufficient under the facts of this case to support the order of revocation.

The record being devoid of any evidence to show that appellant had failed to report to the Sheriff of San Patricio County as required by the unmodified terms and conditions of probation, the trial court abused its discretion in revoking appellant’s probation.

The order of revocation is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

To revoke probation, the violation of only one condition has to be proved beyond a preponderance of the evidence. The allegation that the probationer did not report in person or by letter to the Sheriff of San Patricio County, at Sinton, Texas on the first Saturday of each month was proved.

The motion to revoke was filed November 5, 1975. It alleged, in part, that the probationer had “failed to report in person or by letter to the Sheriff of San Patricio County” since October of 1971.

Leroy Moody, who had been a deputy sheriff of San Patricio County since 1966 and who was chief deputy at the time of the hearing, testified that probationer was the same Larry William Ivy who was the defendant in Cause No. 3686 on the docket of the court. He related that State’s Exhibit No. 6 was the “Sheriff’s Adult Probation Docket of San Patricio County” and that it was kept in the sheriff’s office until November of 1971 when the probation department was formed in the county. He related that he had been in the office daily and to his knowledge Ivy had not reported to the sheriff’s department, and that the sheriff’s department had been looking for Ivy for more than a year.

Alonzo Rodriquez testified that he had been the Adult Probation Officer of San Patricio County since November 15, 1971, and Ivy was placed on probation prior to that date, “but I never did hear from him, we tried to trace him”, and he “[NJever did report, Your Honor.” (Emphasis supplied).

State’s Exhibit No. 6, “Sheriff’s Adult Probation Docket, San Patricio County, Texas”, was admitted as a business record. It recites, in part, as follows:

"4-7-71 To 605: Box 692 Brenham, Tex Tele 836-9492 (A.P. on weekends)
April 71 Letter -0-
5-4-71 Jailed D.W.I. Felony Portland P.D. case No. Made $1000 Bond
6-16-71 Moved to 203 Kyle St. Bryan, Tex. (Called)
June 71 By letter 44.50 Costs 60.00 rest. 10.00
July 71 " " 25.00 rest. 10.00
25.00 rest.
Aug 71 " " Box 401 La Grange wk: Margart Ivy Home Improvements 10.00
Sept 71 u " " 25.00 10.00
9-20-71 A/c Co.Ct. #9056 DWI Mailed P.O. La Grange 25.00 10.00
10-6-71 Report mailed from Eagle Lake, Texas
Oct 71 Report dated Sept 30, 1971 25.00 10.00
11-22-71 Sent to Mrs. Hessie Reed check #9 for $185.00 - restitution 4160 Dunhaven, Dallas , Tex 75220
11-29-71 Letter returned from P.O. Box 401, La Grange unclaimed (Notice to report directly to this office) No address chg.
12-1-71 Notify Sheriff's office if report comes in.
12-7-71 Alias Capias No. 9056 sent to Sheriff W. B. Hauck Fugitive Warrant Division (See Folder) San Antonio, Texas 78206
1-24-72 Bail Bond $2,500.00) Copy given by Sheriffs office (1-26-72)
3-5-73 SO reported they located Probationer in Illinois. Called Houston to return capias
11-11-74 Investigator for Texas Pest Control requested copy of Revocation Order - Subject Belived to be in Harris Co.
Subject believed to be in LaGrange, Tex. Warrant issued for subject's arrest - failure to report since 10/71, failure to pay balance of restitution ($505.00), failure to pay supervisory fees from 11/71 - 11/75 ($480.00)." 11-5-75

The evidence is sufficient to show that Ivy did not report as directed. The docket entries corroborate the testimony of the officers who testified. Testimony that one did not report to the sheriffs office was evidence properly considered by the trial court. There does not have to be a delegation of authority by the sheriff for his deputies to testify that Ivy did not report. Did the probationer report to the sheriff is the question. The evidence shows that he did not do so.

The court did not abuse its discretion in revoking probation. The judgment should be affirmed.

ODOM, J., joins in this dissent.

      . This Court has previously indicated that in light of the provisions of Sections 10 and 31 of Art. 42.12, V.A.C.C.P., a sheriff should not be called upon to act as probation officer. See Hilts v. State, Tex.Cr.App., 476 S.W.2d 283; Perkins v. State, Tex.Cr.App., 504 S.W.2d 458. However, the record shows there was no official probation department in San Patricio County at the time appellant was placed on probation, and we find that no harm has accrued to appellant.

      . As mentioned previously, the practice of appointing a county sheriff as a probation officer is not recommended. See Hilts v. State, supra. Due to the disposition of this appeal, we are not called upon to decide whether or not the sheriff has the authority to delegate any of his personal responsibilities as a “probation officer” when he is appointed as a probation officer in a county. See and compare Hartsfield v. State, Tex.Cr.App., 523 S.W.2d 683.

      . The court admitted into evidence, over appellant’s objection on the grounds of lack of official record and hearsay, State’s Exhibit # 6, the document entitled “SHERIFF’S ADULT PROBATION DOCKET SAN PATRICIO COUNTY, TEXAS,” which contained a series of chronological notations allegedly concerning appellant’s activities during the probationary period. According to the testimony, this document was transferred from the sheriffs office to the newly created probation department in November of 1971.
      We need not determine in this case whether or not State’s Exhibit # 6 qualified as a “business record” or “official record” under the appropriate statutes for the purpose of showing any of appellant’s activities while on probation. However, see and compare Coulter v. State, Tex.Cr.App., 494 S.W.2d 876; Jones v. State, Tex.Cr.App., 500 S.W.2d 661; Battee v. State, 543 S.W.2d 91 (decided January 28, 1976)


author: ROBERTS, Judge.

text:
    Henry COLEMAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52225.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.

      Terry L. Belt, Austin, for appellant.
    Joe Carroll, Dist. Atty., Troy C. Hurley, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of cocaine. The jury assessed punishment at two years’ confinement in the Texas Department of Corrections.

Appellant was alleged to have intentionally possessed an unweighable quantity of cocaine: a trace amount. The record reveals that 1/280,000 of an ounce is weigha-ble.

Other than the chemist’s testimony, and that of the witness from the Automobile Records Department of Bell County who identified appellant as being the record owner of the vehicle in which he was stopped while driving, the only evidence presented by the State was the testimony of the arresting officer. The officer testified that he stopped appellant at 12:05 a.m. to serve a misdemeanor arrest warrant for gambling. The record reveals that the gambling charge was subsequently dismissed. The officer testified that immediately upon shining the flashlight into the window of appellant’s car, a small vial on the floor popped into “plain view.” The vial was admitted under this doctrine. The unweighable trace amount of cocaine was not introduced into evidence.

Although no other contraband or weapons were found on appellant, and he was voluntarily complying with all of the arresting officer’s orders, the officer testified that he contacted several other units of the Killeen Police Department to “[back] me up.” He further testified that he and others examined the small vial and the un-weighable trace amount of substance therein had a “brilliant sparkle to it.” This led him to believe that the substance was cocaine.

The appellant claimed the unweighable trace amount of cocaine was planted on him by the arresting officer. The appellant attempted to support this defense by the testimony of himself and two other defense witnesses to the effect that members of the Killeen Police Department severely disliked him and that this dislike began before the time of his arrest and continued until the day of his trial. In depriving him of the right to show the relationship and the attitude of the Killeen Police Department toward him, the trial court fell into error for two reasons: (1) The appellant had the right to impeach the arresting officer’s credibility by showing him to be a past member of a class who has been and will continue to be severely prejudiced against appellant. (2) The appellant had the right to support his defensive theory-

The issue at trial was simply who the jury was going to believe, the appellant or the arresting officer. In excluding the defense’s proffered testimony, the trial court not only denied appellant a defensive theory, it denied him the only defense he had.

Appellant’s bill of exception on the excluded testimony shows that he would have testified that prior to his trial a Killeen police officer threw a snake in the car he was driving, and such officer later admitted doing this; that he had been charged with carrying firearms, and such charges were dropped; that he had been charged with robbery, and such charges were dropped after he was held for 18 hours; that Killeen police officers had thrown a bomb under his car at one time, which blew up with force sufficient to knock the hubcaps off the car parked next to his at that time; that by virtue of all of these facts and circumstances he was of the opinion that the Killeen Police Department did not like him, and that any member thereof, either past or present, when called to testify against him, would lie because of such bias and prejudice.

Jim Hogan would have testified that he was a friend of the appellant and that the Killeen Police Department had abused appellant’s rights previously. Specifically, he would have testified that on one occasion a detective of the Killeen Police Department threw an army simulator bomb under appellant’s car, and it exploded with such force that it blew the hubcaps off the car sitting adjacent to appellant’s; that the Killeen Police Department in general were antagonistic toward the appellant and that this antagonism would be extended to any witness from the Killeen Police Department testifying against Mr. Coleman.

Had his testimony not been excluded, Bill Williams would have testified for the appellant as follows: He would have stated that he became familiar with the Killeen Police Department when three of its officers framed him by planting “dope” in his ear; that subsequent to that incident the three officers admitted that they had planted the “dope”; that charges against him resulting from this incident had been dropped; that members of the Killeen Police Department had an'antagonistic attitude toward the appellant and that this antagonism would be reflected by biased testimony if they were called to testify against the appellant; that four or five months before the trial the members of the Killeen Police Department threw a bomb under appellant’s car; that previously, when appellant first returned to town, three members of the Police Department picked him up on a parking lot and carried him out in the country and pointed a shotgun at his head in an attempt to make him admit things of which he had no knowledge; that at some previous time they arrested appellant for gambling and the charges were subsequently dropped; that they had thrown a snake in appellant’s car; that upon arrest for the instant offense members of the Killeen Police Department came into appellant’s house, threw him down on the floor, “kneed” him in the back and stated that they had hoped they would have found him there by himself; that by virtue of all these facts, he was of the opinion that anyone from the Killeen Police Department would be biased in his testimony against the appellant.

The animus, motive, or ill-will of a prosecuting witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant may show by himself, or by others if necessary, why the witness is unfriendly toward him. Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740, 742 (1934). It is not necessary that a predicate be laid that the witness himself is biased toward the defendant before evidence which would create this bias is introduced. Smith v. State, 106 Tex. Cr.R. 202, 291 S.W. 544, 545 (1927). The reasoning behind this rule is simply that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him. The jury should be given the opportunity to judge for themselves the witness’s credibility in light of his feelings toward the defendant. Wood v. State, 486 S.W.2d 359, 362 (Tex.Cr.App.1972); Minor v. State, 476 S.W.2d 694, 695 (Tex.Cr. App.1972).

This Court allows . . legitimate exploration of those matters indicating the friendship or leaning of witnesses, and those associated with them, toward any party or issue involved.” (Emphasis added) Gunn v. State, 95 Tex.Cr.R. 276, 252 S.W. 172,178 (1922). “. . . [A]ny fact and every fact going or tending to show mental bias, interests, prejudice, or any other motive, or mental state, or status [of the witness], which, fairly considered and construed, might even remotely tend to affect his credibility, should [be] admitted.” (Emphasis added) Green v. State, 54 Tex.Cr.R. 3, 111 S.W. 933, 935 (1908). “There can be, we think, no doubt that it is always permissible, in every case where it can be shown by competent evidence, to make proof of the hostile attitude of any witness in respect to any party or any cause before the court. Such evidence is clearly admissible for the purpose of affecting the credibility of witnesses and the weight of their testimony.” (Emphasis added) Burnett v. State, 53 Tex.Cr.R. 515, 112 S.W. 74, 79 (1908).

It has been held that inquiry is proper as to whether a relative of a witness is an enemy of the accused. Wade v. State, 75 Tex.Cr.R. 531, 171 S.W. 713 (1914). Therefore, it should be proper to show that former fellow employees of the witness are enemies of the accused.

In civil cases, the rule is well established that “the jury is entitled to know any fact which would tend to influence the testimony given by a witness . . . . The rule is based upon the theory that the jury should know such facts, the better to enable them to weigh the words of the witness.” Hyde v. Marks, 138 S.W.2d 619, 623 (Tex. Civ.App. — Fort Worth, 1940, writ dism’d, judgmt. correct). This is the rule where money and property are involved. It should not differ where liberty is the concern.

The motives which operate on the mind of the witness while he testifies should never be regarded as immaterial, because they tend to affect his credibility. McDonald v. State, 77 Tex.Cr.R. 612, 179 S.W. 880, 882 (1915).

Turning to the specifics of this case, the offered but excluded testimony alleged, among other things, that numerous prior complaints had been filed against the appellant and subsequently dismissed, that prior to the instant arrest three members of the Police Department had picked appellant up on a parking lot and carried him out in the country and pointed a shotgun to his head in an attempt to make him confess to some other offense, and that there was a general conspiracy among members of the Killeen Police Department which had as its purpose getting appellant out of town. In Durfee v. State, 73 Tex.Cr.R. 165, 165 S.W. 180 (1914), this Court held that the exclusion of testimony to facts tending to show the interest and prejudice of the State’s witnesses from the fact that they had taken him out of town and sought to extort a confession from him was error. In Baughman v. State, 49 Tex.Cr.R. 33, 90 S.W. 166 (1905), this Court held that evidence of a conspiracy between the prosecuting witnesses and others to carry on a systematic prosecution of defendant and some of his friends, growing out of extraneous troubles, and that the prosecution in question was part and parcel of the conspiracy, is admissible to show, or tend to show, the animus, motive, and reasons of the prosecution. In Jones v. State, 81 Tex.Cr.R. 230, 194 S.W. 1109 (1917), this Court held that an accused should be permitted to prove a conspiracy among the prosecuting witnesses to fabricate testimony against the accused.

Where the State’s evidence conflicts with that of the defendant’s, evidence that State’s witnesses had made other charges against the defendant which had been dismissed was admissible for the purpose of showing the animus of the witnesses. Sackheim v. State, 94 Tex.Cr.R. 43, 249 S.W. 867, 868 (1923).

Our more recent decisions have reiterated the rule that a defendant should be accorded great latitude in showing any fact which would tend to establish ill feeling, bias, motive, and animus upon the part of any witness testifying against him and that he is not restricted to any one method of so showing. Fletcher v. State, 437 S.W.2d 849, 851-852 (Tex.Cr.App.1969).

The case at bar is similar to that of Hooper v. State, 494 S.W.2d 846 (Tex.Cr. App.1973), where evidence of police misconduct was erroneously excluded. In that case the defendant Hooper denied ever carrying a paper sack containing heroin, as the State alleged. In the instant case, the appellant denied ever possessing the un-weighable trace amount of cocaine, as the State alleged. In Hooper, the defense counsel summed up the critical issue when he argued to the judge, “Who is the jury going to believe.” In the case at bar, the issue is identical. In Hooper, we held that the offered evidence was erroneously excluded because “the police officer’s credibility was all important; any possible malice, bias or prejudice toward appellant would be admissible to attack their credibility, and to lay the groundwork for possible impeachment of the officers.” In Hooper, we followed the general rule that “great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him.” (Emphasis included) Id., at 848. Accord, Seal v. State, 496 S.W.2d 621, 623 (Tex.Cr. App.1973).

In Blair v. State, 511 S.W.2d 277 (Tex.Cr. App.1974), we held that similar evidence was improperly excluded. We stated that the jury’s duty in that case came down to the issue of whom they chose to believe, the appellants or the police officer. The police officer’s credibility was all important; any possible malice, bias or prejudice toward the defendant would be admissible to attack his credibility and to lay the groundwork for possible impeachment of the officer.

We note that in Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.1975), the dissent reasons that evidence of an extraneous offense committed by the accused should have been admitted into evidence as tending to show bias and hatred toward a class: police officers. Assuming arguendo that this reasoning is sound, it would follow that evidence of extraneous occurrences are admissible to show bias and hatred by a class: police officers, against a particular defendant. It has been said that, “A good rule of evidence works both ways.” Montemayor v. State, 543 S.W.2d 93 (Tex.Cr.App.1976; dissenting opinion on State’s Motion for Rehearing).

For all of the above reasons, the proffered testimony by the appellant, and his two witnesses, was competent, relevant, material, and erroneously excluded.

The judgment should be reversed for yet another reason. The chemist testified that it is possible to weigh 1/280,000 of an ounce of cocaine. The trace amount that he recovered from the small vial was unweighable because of difficulty in removing it from the vial. However, he felt that the actual amount in the vial was no more than 5/28,000 of an ounce and maybe as little as 1/28,000 of an ounce. “It would be a harsh rule, indeed, that would charge appellant with knowingly possessing that which it required a microscope to identify.” Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, 173 (1957).

We decline to now adopt such a rule.

The judgment of the trial court is reversed and the cause remanded.

DOUGLAS, J., concurs in the results.


author: DAVIS, Commissioner.

text:
    Daniel Lee DETRICH, Appellant, v. The STATE of Texas, Appellee.
    No. 52862.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.

      John W. Bryant and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

Appellant entered a plea of guilty before the court to the offense of burglary of a building on July 11, 1975. Punishment was assessed at five years, probated.

The State filed a motion to revoke appellant’s probation on July 23, 1975, alleging that appellant had violated his probation in that,

“On the 18th day of July, 1975, in Dallas County, Texas, Daniel Lee Detrich did then and there break and enter a vehicle without the effective consent of Paula Dandridge, the owner thereof, and with the intent to then and there commit the offense of theft.”

Immediately prior to the hearing on November 6, 1975 on the motion to revoke, a jury had found appellant guilty of the offense made the basis of the motion to revoke. The hearing on the motion to revoke was before the same judge who had tried appellant’s case before the jury and appellant was represented by the same court-appointed counsel. At the conclusion of the hearing on the motion, the court entered an order revoking appellant’s probation finding that he had violated that condition of his probation providing that he “(a) Commit no offense against the laws of this or any other State or the United States.”

Appellant contends that the court abused its discretion in revoking his probation “in that no plea was entered by appellant making the hearing on the motion to revoke a nullity.”

Appellant points to the fact that the record does not show that he either entered a plea to the accusation in the motion, nor did he waive the right to enter a plea or refuse to plead.

Appellant relies on Lumsden v. State, Tex.Cr.App., 384 S.W.2d 143, where reversal resulted upon an appeal from a conviction for driving while intoxicated where the record reflected that no plea was entered to the information, nor was there a waiver of the right to enter a plea. It was held in Lumsden that a plea must be entered in every criminal case and, if no plea is entered, the trial is a nullity.

Arts. 26.11, 26.12, and 36.01, V.A. C.C.P., provide for the entry of a plea by the defendant in a criminal trial and the entry of a plea of not guilty if the defendant refuses to answer. The foregoing articles set forth the required procedure in the trial of criminal cases and have no application to hearings on motions to revoke. Art. 42.12, V.A.C.C.P., “Adult Probation and Parole Law,” makes no provision for entry of a plea in a hearing on a motion to revoke. The requirements of due process which are applicable to probation revocation proceedings, Spencer v. State, Tex.Cr.App., 503 S.W.2d 557, do not require that a plea be entered in a motion to revoke hearing. While it would appear that a more orderly procedure would be had if probationer were offered an opportunity to enter a plea of “true” or “not true” to the motion to revoke, we hold that a failure to enter a plea by probationer does not render the proceeding a nullity. No error is shown.

Appellant contends that the court abused its discretion in appointing counsel for him on the same day as his hearing on the motion to revoke.

The record reflects that counsel had just concluded representing appellant in a trial before a jury for the offense which constituted the sole basis of the motion to revoke.

This Court has held that, absent a showing of harm, nothing in Art. 42.12, supra, or the United States Constitution requires a preparation period of ten days prior to a revocation hearing. See Jacobs v. State, Tex.Cr.App., 500 S.W.2d 521; Hill v. State, Tex.Cr.App., 480 S.W.2d 200.

Appellant has not shown harm, nor do we perceive how appellant could have been harmed when his counsel had just concluded representing him on the trial of the offense which was made the sole basis of the motion to revoke.

No abuse of discretion is shown in the revocation of appellant's probation.

The judgment is affirmed.

Opinion approved by the Court.

      . This conviction was affirmed in a per curiam opinion handed down this day in Detrich v. State, Cause No. 52,863.


author: KEITH, Commissioner.

text:
    Carlos LOA, Appellant, v. The STATE of Texas, Appellee.
    No. 52871.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.
    Rehearing Denied Feb. 9, 1977.

      Albert A. Pena, III, Corpus Christi, for appellant.
    Knute L. Dietze, Dist. Atty., and George A. Taylor, Asst. Dist. Atty., Victoria, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

Appellant was charged with the .possession of a controlled substance; namely, heroin, and was found guilty by a jury which assessed his punishment at confinement for ten years.

The appeal is predicated upon two closely related grounds of error: (1) the evidence was insufficient to sustain the conviction since the prosecution depended exclusively upon the testimony of two accomplice witnesses whose testimony was not corroborated; and (2) the mere presence of appellant was insufficient to corroborate the testimony of the accomplice witnesses. We agree and reverse the judgment of conviction and remand the cause for a new trial for the reasons now to be stated.

Victoria Detective Carl Beilis, accompanied by other police officers (none of whom testified), went to the residence of Manuel Gonzales and Mary Luna on E. Power Street in Victoria. Beilis testified that when he entered the house he saw appellant standing in the bedroom with his hands upon the wall in an arrest posture, that he went into the kitchen where he found Mary Luna. He noticed a glass jar, a hypodermic syringe, and a bottle cap on the kitchen table near where Luna was standing. The glass jar contained several small packages wrapped in foil. Manuel Gonzales, the common law husband of Mary Luna, was in the bedroom with appellant when Beilis entered the house.

Appellant, Gonzales and Luna were arrested and taken to the police station where a matchbox containing heroin was found in Luna’s brassiere. The State showed, without objection, that it was heroin in the jar and in the matchbox.

Gonzales testified that he and Luna resided in the house and that appellant had come there to stay only a few days earlier, that appellant had the heroin and gave him and Luna several “fixes” in payment of his rent or for the privilege of staying in the house. He also said that Luna had given appellant the glass jar in which the heroin was found, that the contraband had been secreted outside the house each night that appellant stayed with them, that early on the morning of the arrest he went outside and brought the jar and its contents into the house where he and appellant both had an injection. They then went to sleep and were awakened when the officers arrived between 8:30 and 9:00 in the morning.

Gonzales readily admitted that he had pleaded guilty to the possession of heroin on the occasion in question only the day before he gave his testimony and that while he had not been sentenced, he was hopeful “that the fact you are testifying here today will in some way make the sentence that’s meted out to you a little bit more lenient.”

Luna, although indicted for possession of heroin on the occasion in question, had not been tried; nevertheless, after being cautioned of her rights by the trial judge, testified in detail, saying that appellant came to their residence with the heroin, gave her and Gonzales several “fixes”; that Gonzales stole the heroin which she secreted in the matchbox found upon her person. Her testimony generally followed that of Gonzales.

Appellant did not testify nor did he offer any evidence on either phase of the trial.

It is readily apparent from this survey of the record that the only incriminating circumstance against appellant, other than the testimony of Gonzales and Luna, was his presence in the house where the officers found the contraband.

The trial court properly charged the jury that Gonzales and Luna were accomplices as a matter of law. Bentley v. State, 520 S.W.2d 390, 394 (Tex.Cr.App.1975). And, a person may not be convicted on the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant with the offense committed.” Vernon’s Ann.C.C.P. art. 38.14. “And it is a fundamental principle that the testimony of one accomplice witness cannot corroborate another accomplice witness’ testimony.” Chapman v. State, 470 S.W.2d 656, 660 (Tex.Cr.App.1971).

In Cherb v. State, 472 S.W.2d 273, 279 (Tex.Cr.App.1971), this Court stated the rule governing the test of the sufficiency of the corroboration of an accomplice witness’ testimony: We must eliminate the evidence of the accomplice from consideration and then examine the evidence of other witnesses to ascertain if there is inculpatory evidence or evidence of incriminating character which tends to connect the accused with the commission of the offense. “If there is such evidence, the corroboration is sufficient, otherwise it is not.” Id.

Under the undisputed record which we review, appellant was only a visitor in the house occupied by Gonzales and Luna. No contraband was found in the bedroom where appellant and Gonzales were arrested, all of it being discovered either in the kitchen in which Luna was found or it was upon her person.

The mere presence of appellant in the house of Gonzales and Luna, under the circumstances shown, without more, is insufficient to tend to connect appellant with the commission of the offense charged. Etheredge v. State, 542 S.W.2d 148, 150 (Tex.Cr. App.1976).

The judgment is reversed and the cause remanded.

Approved by the Court.


author: DOUGLAS, Judge.

text:
    Ramon PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 53375.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Louis A. Perez, Jr., San Angelo, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

The conviction is for assault with a motor vehicle. Punishment was assessed at ten days in jail and a fine of $25.00.

The complaint and information do not charge an offense. They allege that appellant did then and there unlawfully “commit the offense of assault with a motor vehicle against the peace and dignity of the State.”

In 8 Tex.Jur.2d, Section 373, page 12, the correct rule is found. It is as follows:

“The offense of assault must arise out of the collision of the vehicle with a person, or a causing of injury to a person. And the assault may consist of the vehicles striking a person’s body or its striking a vehicle in which a person is riding, or its striking a vehicle that is thereby caused to strike the victim; . . . .”

See also McCollum v. State, 171 Tex.Cr.R. 158, 346 S.W.2d 126 (1961).

Because no offense is charged, the judgment and the prosecution are ordered dismissed.


author: KEITH, Justice.

text:
    Robert A. NOEL et al., Appellants, v. The STATE of Texas ex rel. LUFKIN INDUSTRIES, INC., Appellee.
    No. 7873.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 9, 1976.
    Rehearing Denied Jan. 20, 1977.

      W. D. Perkins, Lufkin, for appellants.
    James R. Cornelius, Jr., Lufkin, for appel-lee.
   KEITH, Justice.

The defendants below appeal from a judgment entered in a quo warranto proceeding which declared that the Town of Homer, in Angelina County, was not legally incorporated and that the individual defendants were not legal officers of said town.

This suit was brought by the State of Texas, acting through the District Attorney of Angelina County, on relation of Lufkin Industries, Inc. [hereinafter “Lufkin”], challenging the legality of thé"'order incorporating said town. The several contentions advanced by Lufkin were submitted to the jury; and, upon favorable answers thereto, the judgment declared that the town was not incorporated legally, dissolved the order of incorporation, and ousted the individual defendants, officers thereof.

We first dispose of defendants’ challenge to the sufficiency of the evidence to support the answers to Special Issues Nos. 2, 3, and 4. Defendants urge that there was no evidence to support the findings that such areas had been arbitrarily excluded from the town’s boundaries; or, alternatively, that there was insufficient evidence to support such findings. It would serve no useful purpose to give a lengthy account of the evidence offered upon these issues. It is sufficient to say that after a careful review of the evidence in accordance with the usual rule, e. g., under the standards set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), we find the evidence is both legally and factually sufficient to support such findings. Points four and five, raising such contentions, are overruled.

Defendants’ primary challenge to the judgment, both in the brief and upon oral submission of the cause, is directed to claimed errors in the charge, and we now turn our attention to these complaints.

The Court submitted Special Issue No. 1 inquiring if Lufkin’s property “did not constitute a part of the ‘existing town’ of Homer” upon the date of the incorporation, and the jury answered “It did not.” The jury was instructed in connection with this issue:

“You are instructed that by the words ‘existing town’ as used in this charge is meant an assemblage of habitations having, to some degree, an urban character as distinguished from a rural character, and having, to some degree, unity and proximity between the habitations so assembled, and susceptible of receiving some municipal services.”

From an examination of the authorities cited by the parties, it is readily apparent that the definition was extracted from the opinion in Harang v. State ex rel. City of West Columbia, 466 S.W.2d 8, 11-13 (Tex.Civ.App. — Houston [14th Dist.] 1971, no writ), wherein Chief Justice Tunks made an exhaustive survey of the leading authorities on the subject. Harang has been cited and followed in Rogers v. Raines, 512 S.W.2d 725, 729-730 (Tex.Civ.App. — Tyler 1974, writ ref’d n. r. e.), and Royal Crest, Inc. v. City of San Antonio, 520 S.W.2d 858, 864 (Tex.Civ.App. — San Antonio 1975, writ ref’d n. r. e.). Following these authorities, and the cases therein cited, we find no error in the instruction and the first point is overruled.

Defendants have several points complaining of the refusal to give particular definitions or instructions to the jury as to several issues which were submitted.

In the second point, defendants claim that the trial court erred in submitting Special Issue No. 5 (see fn. 1, supra) without including an instruction or definition of the words “for strictly town purposes.” Defendants argue:

“An incorporating town must include only property that is to be used ‘for strictly town purposes’. TEX.REV.CIV. STAT.ANN., ART. 1134 (1895). Whether property is intended to be used for strictly town purposes is a question of fact. State, ex rel. Perrin v. Hoard, 94 Tex. 527, 62 S.W. 1054 (1901).”

We accept the premises postulated but deny the conclusion sought to be drawn therefrom.

Although defendants objected to the charge for the failure to include appropriate definitions and instructions, defendants did not tender any substantially correct definition or instruction of such terms as required by TEX.R.CIV.P. 279.

Assuming, arguendo, that defendants were entitled to a definition of the term, an objection did not preserve the alleged error. Under the cited rule defendants were required to tender a correct definition or waive the complaint. See and compare Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, 314 (1943); Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944); Bituminous Casualty Corp. v. Black & Decker Mfg. Co., 518 S.W.2d 868, 875 (Tex.Civ.App. — Dallas 1974, writ ref’d n. r. e.). Point two is overruled.

These authorities also control the disposition of points of error three and six. As apparent from the summary found in fn. 2, supra, while defendants complained of the failure to include an instruction in the charge, they did not tender correct instructions. Points three and six are overruled.

The judgment of the trial court is affirmed.

STEPHENSON, J., not participating

      . The jury findings áre summarized:' No. 1— Lufkin’s property included within the town “did not constitute a part of the ‘existing town’ of Homer” upon the date of the incorporation; Nos. 2, 3, and 4 — Separately described areas adjacent to the town’s boundaries were “arbitrarily excluded therefrom”; and No. 5 — There was no reasonable expectation that the area of Lufkin’s property included within the town’s boundaries “would be used for strictly town purposes.”

      . Point Two: Failure to define the term “for strictly town purposes” as used in Special Issue No. 5; Point Three: Failure to instruct, in connection with Special Issue No. 5 that “the mere fact that Appellee (Lufkin Industries) supplies its own water, sewage, fire and police services does not mean that the Appellee’s land included in the Town of Homer would not be used for strictly town purposes”; Point Six:

      Failure to include an instruction in connection with Special Issues Nos. 2, 3, and 4 that the area in the town could not exceed two square miles.