author: PHILLIPS, Judge.

text:
    Bobby Ray WYATT, Appellant, v. The STATE of Texas, Appellee.
    No. 54462.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 10, 1978.
    Rehearing en banc Denied June 14, 1978.

      Jake C. Cook, Court Appointed, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. V.T.C.A., Penal Code, Sec. 29.03. Punishment was assessed by the court at 20 years’ imprisonment.

The evidence adduced at trial revealed that on January 26, 1975, at 9:30 p. m., Betty Andrews, the night manager of a Quik Sak convenience store in Fort Worth, was robbed of $150.00. Andrews testified that at the time of the robbery she was talking to a regular customer, Gregg Johan-son. The appellant, accompanied by four others, entered the store carrying a flashlight. The appellant and one other man stated in unison, “Is this y’all’s flashlight?” Johanson stated that the flashlight was his and when he reached out, one of the men who had accompanied the appellant grabbed Johanson’s arm and placed a gun to his head. Johanson was instructed to lay on the floor facing away from the activity. The man with the gun demanded the money from witness Andrews and she stated, “It’s in the register.” The appellant then took the cash drawer out of the cash register and they left.

In his first ground of error, the appellant contends that the trial court erred in failing to suppress the in-court identification and all evidence of a lineup because such lineup was held without an attorney representing the appellant. At the motion to suppress hearing it was established that the appellant was arrested January 29, 1975. On January 30, at 8:35 a. m., the appellant was given a magistrate’s warning and signed a printed form acknowledging same. The lineup was held the same day at approximately 1:40 p. m., without counsel at which time Betty Andrews identified the appellant. On January 31, at 11:09 a. m., a formal complaint was filed charging the appellant with aggravated robbery. Appellant was subsequently indicted on February 25.

The appellant contends that the lineup was held after he had been charged with aggravated robbery and he was therefore entitled to counsel pursuant to the case of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). In Kirby, the United States Supreme Court held that a lineup after arrest, but before the initiation of any adversary criminal proceedings, is not a criminal proceeding where the accused as a matter of absolute right is entitled to counsel. Lane v. State, Tex.Cr.App., 506 S.W.2d 212; Gillon v. State, Tex.Cr.App., 491 S.W.2d 893; Ellingsworth v. State, Tex.Cr.App., 487 S.W.2d 108.

In support of his contention, appellant relies upon the printed magistrate’s form, which reads, in part: “You are charged with the offense of Aggravated Robbery.” Appellant asserts that this amounted to the initiation of adversary criminal proceedings sufficient to invoke the appellant’s right to counsel under Kirby. However, the sentence immediately following the one relied upon by the appellant states: “An affidavit charging you with this offense (has not) been filed in this court.”

It is clear that the form signed and relied upon by the appellant is simply an acknowledgment that a magistrate’s warning was given pursuant to Article 15.17, V.A.C.C.P. We cannot conclude that informing a defendant of the accusation against him constitutes the initiation of adversary criminal procedures. Consequently, in the instant case, the lineup was investigatory in nature and not accusatory. It was conducted prior to any arraignment, indictment, or formal charges being brought against him, and the appellant was not entitled to counsel as a matter of absolute right. Brown v. State, Tex.Cr.App., 513 S.W.2d 35; Winn v. State, Tex.Cr.App., 503 S.W.2d 816.

Even if it could be argued that formal charges had been filed prior to the lineup, no reversible error would be presented. The record reflects that Andrews’ in-court identification of the appellant was of independent origin based on her observations of the appellant at the Quik Sak convenience store and not tainted by the lineup. Ragon v. State, Tex.Cr.App., 506 S.W.2d 214; Nichols v. State, Tex.Cr.App., 511 S.W.2d 269; Beaupre v. State, Tex.Cr.App., 526 S.W.2d 811. Appellant’s ground of error one is overruled.

In his second ground of error, appellant contends that the trial court erred in failing to suppress the identification of appellant by witness Andrews because such evidence was obtained as the result of an illegal arrest. Appellant bases his contention that the arrest was illegal on the following testimony by Officer V. T. Sommers elicited at the punishment stage of the trial:

“Q Did you have anything to do with his arrest?
“A No, sir.
“Q Did you have anything to do with the preparation of this case?
“A Yes, sir.
“Q That is the Robbery Case?
“A Yes, sir, I did.
“Q Are you familiar with the underlying facts in it?
“A Yes, to some degree.
“Q Is it true that he was picked up on suspicion of burglary first by the Police?
“A Yes, that’s right.
“Q And did you talk to him or go out to his house with them?
“A No, sir, I did not.
% ⅜ * ⅜ * *
“Q Was there a warrant out for his arrest at that time?
“A Not to my knowledge.
* * * * * *
“Q You don’t know of any reason of your own knowledge then why he was arrested, is that right?
“A That would be right, yes, sir.
“Q You had no personal knowledge of any probable cause to arrest him of your own knowledge, is that correct, for the burglary?
“A No, I don’t know.”

Contrary to appellant’s contention that this testimony reflects no probable cause for the appellant’s arrest, we view Officer Som-mers’ testimony as merely reflecting that he did not have personal knowledge of any probable cause. We cannot conclude that this testimony affirmatively demonstrates that there was no probable cause for appellant’s arrest.

Even if we assume the arrest was illegal, we still conclude no error is shown. Betty Andrews testified unequivocally that her identification was a result of having seen the appellant over a period of several minutes at the time of the offense. Witness Andrews related that the lineup did not aid her in-court identification in any way and stated, “I remember his face. I’ll never forget it.” In the case of Johnson v. State, 496 S.W.2d 72, this Court was presented with an analogous situation and held:

“Since it is appellant’s contention that the photograph was, in fact, the fruit of the poisonous tree, we conclude that identification testimony would have been obtained regardless by means sufficiently distinguishable from the underlying illegality to be purged of the primary taint. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The appellant would not have remained unidentified ‘but for’ the photograph taken. See Wong Sun v. United States, supra; Santiago v. State, 444 S.W.2d 758, 761 (Tex.Cr.App.1969). Cf. Noble v. State, 478 S.W.2d 83 (Tex.Cr.App.1972).”

Similarly, in the instant case, the identification of the appellant by Betty Andrews would have been obtained by means sufficiently distinguishable from the illegal arrest to be purged of the primary taint. Johnson v. State, supra; Lujan v. State, Tex.Cr.App., 428 S.W.2d 336; cf. Writt v. State, Tex.Cr.App., 541 S.W.2d 424. Appellant’s contention is overruled.

In his ground of error three, appellant contends that the trial court erred in allowing the State to bolster Betty Andrews’ in-court identification by showing her prior lineup identification of appellant. After witness Andrews identified appellant at trial, the State was allowed to elicit testimony that she had identified the appellant at a prior lineup, over defense objection. In Lyons v. State, Tex.Cr.App., 388 S.W.2d 950, this Court held:

“It is the rule that while a witness who has identified her assailant at the trial may testify that she also identified him while he was in custody of the police, others may not bolster her unimpeached testimony by corroborating the fact that she did identify him.”

In the instant case, Betty Andrews was the only witness to testify concerning her pretrial identification of the appellant and, as such, her testimony was admissible. See Adams v. State, Tex.Cr.App., 514 S.W.2d 262; Jackson v. State, Tex.Cr.App., 507 S.W.2d 231; Smith v. State, Tex.Cr.App., 520 S.W.2d 383. Appellant’s third ground of error is overruled.

In his ground of error four, appellant contends that the prosecution in the present case was in violation of a plea bargain agreement and that the imposition of a 20 year sentence was, in essence, a penalty for the exercise of his right to appeal in violation of due process principles as expressed in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In order to clearly understand appellant’s contention, the facts underlying his original plea bargain must be examined.

On December 4, 1974, the appellant pled guilty in Trial Cause No. 74-10-02420 to the offense of robbery and received a 10 year probated sentence. Subsequently, the appellant was indicted for forgery, Trial Cause No. 3201, and for the present aggravated robbery case. It was agreed by the State and the appellant that, in exchange for the appellant’s plea of guilty to the forgery case and his plea of true to a revocation of the robbery probation, the State would recommend a 10 year sentence in each case and hold the present aggravated robbery case in abeyance pending the appellant’s filing a frivolous appeal brief with this Court in each case. The State agreed to dismiss the present aggravated robbery case after those appeals were affirmed. Thus, a condition precedent to any contractual duty of the State to dismiss was the affirmance of the convictions.

On appeal, we take judicial notice that the appeals were abated for re-briefing in light of this Court’s decision on original submission in Jones v. State, Tex.Cr.App., 545 S.W.2d 771. See Granfil v. State, Tex.Cr.App., 525 S.W.2d 518. On original submission in Jones, we held that a forgery indictment identical to the one in Trial Cause No. 3201 was fundamentally defective. After abatement, the trial court granted new trials in both the forgery case, No. 3201, and the revocation of probation, No. 74-10-02420. Subsequently, this Court granted the State’s motion for rehearing in Jones and held that the forgery indictment was not fundamentally defective absent a motion to quash.

Appellant contends that his filing of frivolous appeal briefs performed his entire contract. This is true as to his performance of acts or omissions imposed on him personally by the agreement; but an affirmance of the cases was required as a condition precedent to any contractual duty of the State to dismiss the present aggravated robbery case. Since the condition did not occur, the State had the right to proceed on said case absent some new agreement otherwise. Since appellant has never before been tried or sentenced for the instant offense, North Carolina v. Pearce, supra, does not apply. Alvarez v. State, Tex.Cr.App., 536 S.W.2d 357; Martinez v. State, Tex.Cr.App., 471 S.W.2d 399. Appellant’s fourth ground of error is overruled.

In his ground of error five, appellant contends that the trial court erred in denying his motion for instructed verdict. Appellant argues that if we exclude the identification by Betty Andrews as alleged in his first two grounds, there would be no evidence connecting the appellant to the aggravated robbery. Initially, we note that the trial court is presumed to have had good cause in overruling a motion for instructed verdict. Thumann v. State, Tex.Cr.App., 466 S.W.2d 738; Lewis v. State, Tex.Cr.App., 481 S.W.2d 822. Further, having overruled his first two contentions, we find the evidence sufficient to support the conviction. Banks v. State, Tex.Cr.App., 503 S.W.2d 582. Appellant’s fifth contention is overruled.

In his sixth ground of error, the appellant complains that the trial court erred in overruling his objection to the prosecutor’s improper jury argument. During trial, the appellant’s only witness was Gregg Johanson, the customer at the store at the time of the robbery. Johanson testified that he could not positively identify the appellant as the man who entered the store with the flashlight. He stated that, while he did not have sufficient opportunity to observe the man, his impression was that the man was shorter than the appellant. In this regard, the appellant made the following argument:

“. . .1 knew then that I had to put on that witness [Gregg Johanson] to show this Jury that there was another witness out there some sixteen or seventeen months ago that said that the fellow that was out there with the flashlight was shorter than the man over here on trial.
* * * * * *
“. . .He said there was a flashlight out there that somebody brought in — a man shorter than this Defendant brought in the store. .
******
“. . . And the person with the flashlight was shorter than the Defendant here.”

The appellant now complains of the following argument by the prosecutor:

“And, you know, Mr. Cook says that Gregg said that the Defendant was shorter or the man was shorter that was in the store. Well, Ladies and Gentlemen, this man has on platform shoes. He has got them on right now and he had them on yesterday when Mr. Cook had him stand up. And you can use your common sense and know that platform shoes add a couple of inches. He’s pretty slick. That will add a couple of inches. He’s got them on right now, platform shoes.
“So, I think that accounts for Gregg Johanson’s testimony that the man that was in the store was shorter.
“MR. COOK: Your Honor, I object to his surmise of his testimony in this case.
“MR. BENNETT: That is a reasonable deduction, Ladies and Gentlemen.
“THE COURT: Overruled.”

The prosecutor’s argument was based on a reasonable deduction from the evidence. Pesch v. State, Tex.Cr.App., 524 S.W.2d 299; Parish v. State, Tex.Cr.App., 523 S.W.2d 665; Kennedy v. State, Tex.Cr.App., 520 S.W.2d 776; Hunt v. State, Tex.Cr.App., 511 S.W.2d 954; Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230. Further, the prosecutor’s argument was in response to that argument made by appellant’s counsel. Lapp v. State, Tex.Cr.App., 519 S.W.2d 443; Chappell v. State, Tex.Cr.App., 519 S.W.2d 453; Collins v. State, Tex.Cr.App., 548 S.W.2d 368. Appellant’s contention is overruled.

In his seventh ground of error, appellant complains of the. following jury arguments by the prosecutor:

“MR. BENNETT: [Prosecutor] So, I think — we talked to Gregg Johanson and we realized that he couldn’t add anything to the case. You know, Mr. Cook seems to think that it’s unusual, for some reason, that we didn’t bring you a whole flock of folks in here, Ladies and Gentlemen. Well, Ladies and Gentlemen, there was only two people that could testify to anything in this case and one of them is Gregg Johanson.
“MR. COOK: [Appellant’s counsel] Your Honor, we object to that. It’s outside the record and this attorney’s testifying.
“THE COURT: Overruled.
“MR. COOK: Note our exception.
“MR. BENNETT: There was a customer, Gregg Johanson, who was on the floor for most of the time and couldn’t see anything and Mrs. Andrews. .
“So, Ladies and Gentlemen, don’t be misled by the fact that there is no physical evidence. The law says that Mrs. Andrews testimony is more than sufficient under the law—
“MR. COOK: We object to that—
“MR. BENNETT: —to prove guilt beyond a reasonable doubt.
“MR. COOK: The law does not say that and there’s nothing in the Charge to that effect.
“THE COURT: Overruled.
* * * * * *
“In my experience, I think, that you can reasonably conclude from the evidence that was one of the most positive identifications that can be made.
“MR. COOK: Your Honor, I object to what his experience may be. He’s testifying again and we object to it.
“THE COURT: Sustained.
“MR. COOK: Since the Court has sustained the objection, I—
“THE COURT: I’ll instruct the Jury not to consider the remark about his experience.
“MR. COOK: Since it’s so prejudicial, we move for a mistrial.
“THE COURT: Overruled.”

With regard to appellant’s first two objections, we note that appellant’s counsel made the following argument prior to those arguments made by the prosecutor:

“If a man can be brought to trial on the testimony of one person that happened — for an offense that occurred some sixteen or seventeen months ago, and his jeopardy be put in issue and his chance at losing his freedom anywhere — as the Judge told you, the punishment in a robbery case is from five to ninety-nine years or life and can be put in that type of jeopardy on the testimony and only the evidence that you’ve heard in this case, then I’m scared of the law.
“Now, the State put on one witness and you heard them rest. They rested their case and said, ‘Ladies and Gentlemen of the Jury, here it is. We want you to convict this man on that one piece of evidence.’
“Mr. Bennett told you out here, as a Jury Panel, that — I think that he telegraphed when he told you that there probably wasn’t going to be any real or physical evidence in this case. He told you, in effect, that there was going to be just one witness, I think.”

It is apparent from this argument that appellant first injected the subject of whether the testimony of one witness was sufficient to justify a conviction and why the State only relied upon one witness. We find the complained of arguments were in response to the argument of opposing counsel. Alejandro v. State, supra; Mays v. State, 563 S.W.2d 260 (delivered March 22, 1978).

With regard to appellant’s third complained of argument, it is not proper for counsel to inject personal opinions into argument lest they convey to the jury the idea that they have bases for their conclusions in addition to the evidence before the jury. Fowler v. State, Tex.Cr.App., 500 S.W.2d 643. However, counsel may draw reasonable deductions “from the evidence” and, in the instant case, the prosecutor’s remark concerning his experience represented permissible adversary comment. Shipp v. State, Tex.Cr.App., 482 S.W.2d 870. In any event, the trial court sustained the appellant’s objection and the instruction to disregard cured the error, if any. Stiggers v. State, Tex.Cr.App., 506 S.W.2d 609; Willis v. State, Tex.Cr.App., 518 S.W.2d 247. Appellant’s seventh contention is overruled.

In his final ground of error, the appellant argues that the trial court erred in considering inadmissible evidence when ruling on the appellant’s motion to suppress. After Betty Andrews testified at the suppression hearing concerning her identification of the appellant at the line-up on January 30 at 1:40 p. m., the State introduced the complaint dated January 31, filed at 11:09 a. m. At that time, the following exchange occurred:

“MR. BENNETT: To note the Court’s attention, that Case, Formal Complaint was not filed until January the 31st, 1975, one day after the line-up was held. And at that time, and at the time the lineup was held, there was no formal charges pending against this man.
“MR. COOK: That is a conclusion on the part of the District Attorney and we object to it.
“THE COURT: Overruled.
“MR. COOK: We object to him testifying without being sworn. May I have a ruling on that last objection about him testifying?
“THE COURT: He wasn’t testifying.
“MR. COOK: We object.
“THE COURT: That’s my ruling.
“MR. COOK: We object and except.”

At the time of this complained of argument, there was evidence before the court concerning the time of the lineup and the time of the filing of the formal complaint. Consequently, the prosecutor’s argument was a reasonable deduction from the evidence before the court. Pesch v. State, supra; Parish v. State, supra. Appellant’s final ground of error is overruled.

The judgment is affirmed.

      . Article 15.17, V.A.C.C.P., provides, in part:
      “The magistrate shall inform in clear language the person arrested of the accusation against him and of any affidavit filed therewith, . . . ”

      . We wish to express our concern with the plea bargain in the instant case. The record indicates that a part of the appellant’s plea bargain was that he file frivolous appeal briefs in this Court. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gainous v. State, Tex.Cr.App., 436 S.W.2d 137. This raises the question of whether the State, as a proper subject matter of a plea bargain, can require the defense counsel to file a certain type of brief on appeal or raise only certain grounds of error in an appellate brief. While we need not decide this issue, we express grave reservations that such a matter may properly form a valid part of any plea bargain. See Title 14 App., Art. 12, Sec. 8, EC5-1, DR5-105(A), DR5-107(B), DR7-102(A)(2), V.A.C.S.; cf. Employers Casualty Company v. Tilley, 496 S.W.2d 552 (Tex.1973); People v. Blakley, 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763 (1974).

      . Any holding other than the one reached in this case would only serve to discourage plea negotiations by prosecuting authorities. Any prosecutor would hesitate to dismiss a charge as part of a plea bargain knowing that such charge could never be tried if the defendant was successful on appeal. See State v. Rhein, 117 N.J.Super. 112, 283 A.2d 759 (1971); State v. Williams, 39 N.J. 471, 189 A.2d 193 (1963); State v. Stacy, 43 Wash.2d 358, 261 P.2d 400 (1953); Martinez v. Estelle, 527 F.2d 1330 (5th Cir. 1976); Harrington v. U. S., 444 F.2d 1190 (5th Cir. 1971); U. S. v. Rines, 453 F.2d 878 (3rd Cir. 1971); U. S. v. Wells, 430 F.2d 225 (9th Cir. 1970); Munich v. U. S., 337 F.2d 356 (9th Cir. 1964); cf. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977).


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    J. D. GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 54139.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 31, 1978.

      William A. Odom, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Chris T. Hanger, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for promotion of prostitution under our present Penal Code. After a trial before the court, the trial judge assessed the appellant’s punishment at six months’ confinement in the Harris County jail.

The appellant contends that the evidence was insufficient and that the trial judge abused his discretion by overruling the appellant’s motion for new trial. We affirm.

The record reveals that on December 2, 1975, Officer W. F. Hosea of the Houston Police Department vice squad received information from a confidential informant that two males, two females and two children were living in a house at 709 W. 18th Street in Houston. The informant told Hosea that he could procure prostitution services from the people living at the residence.

Pursuant to this information, Hosea and his partner, Officer R. L. Gonzales, proceeded to the residence at 12:15 a. m., on December 8, 1975. When they arrived at the residence, they knocked on the door and were met by Barbara Jean Phillips. Hosea and Gonzales told Phillips that they had been told that they could “have some fun” at the residence and Phillips invited them in. Thereafter, Hosea and Gonzales discussed the possibility of sexual intercourse for hire with Phillips. Phillips told them that for $25 each, $50 total, she would have sexual intercourse and deviate sexual intercourse with Hosea and Gonzales. Hosea and Gonzales agreed that the price was fine, and they asked Phillips if anyone else was present at the residence. Phillips responded that her husband, subsequently identified as the appellant, was not home, but that he would shortly return.

Hosea and Gonzales told Phillips that they didn’t want to get into any trouble with the appellant and Phillips responded that “[w]ell, my husband doesn’t care.” Hosea and Gonzales responded that they would wait until he returned. The officers then left the residence.

Hosea and Gonzales maintained surveillance of the residence and at approximately 2:00 a. m. the appellant arrived. Shortly thereafter, the officers reapproached the residence and knocked on the door. Phillips let them in and told them that her husband, the appellant, was home and that he wanted to talk to Hosea and Gonzales. The appellant then entered the room, dressed only in his underwear, and asked Hosea and Gonzales what they were looking for. The officers told him that they wanted a date of prostitution and the appellant responded that they could have sexual intercourse with Phillips as long as they didn’t cause any trouble and as long as they did not mistreat her. Gonzales again asked the appellant if it was alright if Hosea and he had a “sexual date” with Phillips and assured the appellant that there would not be “any problems whatsoever.” The appellant reiterated that as long as Hosea and Gonzales did not cause any trouble, they could have all the fun that they wanted with Phillips for the $50 price that Phillips had quoted them.

Hosea then gave the appellant three marked $20 bills. The appellant left the room. The appellant immediately returned with $10, which he gave to Hosea, and told the officers that they could “knock your lights out, but don’t cause any shit.” The appellant then left the room. The officers subsequently arrested Phillips and the appellant.

The appellant testified on his own behalf. He acknowledged taking the money from Hosea and giving Hosea $10 change, but he denied that he had an agreement to split the money with Phillips. According to the appellant, the only reason he took the money from Hosea was because Phillips had told him she was afraid of Hosea and Gonzales and the appellant thought it would be safer if she didn’t keep the money with her during the services she was about to perform. The appellant also explained that he was aware that Phillips was a prostitute and that she engaged in such conduct to support an alcoholic habit, but denied any involvement in her illegal activities.

The defense also called Phillips to testify for the appellant. She related that on one occasion the appellant had beaten her because she would not go out and “prostitute.” She denied the existence of any agreement to split the money she received from being a prostitute with the appellant, and explained that she engaged in such activities to support her alcoholic habit which the appellant had refused to support.

The appellant’s first contention is that the evidence was insufficient. Specifically, the appellant contends that there was no evidence to show an agreement between Phillips and the appellant to split the proceeds of prostitution services or to show that the appellant solicited, procured, or invited Phillips to engage in sexual intercourse or solicited, procured, or invited the officers to engage in sexual intercourse with Phillips.

V.T.C.A., Penal Code, Section 43.03, states:

“43.03. Promotion of Prostitution
(a) A person commits an offense if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he knowingly receives money or other property pursuant to an agreement to participate in the proceeds of prostitution.
(b) An offense under this section is a Class A misdemeanor.”

The elements of the offense of promotion of prostitution are therefore:

(1) A person
(2) acting other than as a prostitute receiving compensation for personally rendered prostitution services,
(3) knowingly receives money or other property
(4) pursuant to an agreement to participate in the proceeds of prostitution.

It is well established that direct evidence is that evidence which directly demonstrates the main fact to be proved. Circumstantial evidence, on the other hand, is that evidence which directly proves a secondary fact which, by logical inference, demonstrates the main fact to be proved. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973).

In the present case, there was direct evidence that the appellant physically received the money from Hosea. The agreement to participate in the proceeds of Phillips’ prostitution services was not proven by direct evidence. However, Phillips testified that the appellant had beaten her on one occasion for her refusal to perform prostitution services. This fact, when coupled with the fact that the appellant physically took the money from Hosea, was circumstantial evidence of the existence of an agreement between Phillips and the appellant to share the proceeds from Phillips’ prostitution services.

We therefore hold that there was sufficient evidence for the trial judge to have found beyond a reasonable doubt that an agreement existed between Phillips and the appellant whereby the appellant would receive a portion of the money earned by Phillips for her .services as a prostitute.

The more difficult question, however, is whether V.T.C.A., Penal Code, Section 43.03 requires, as the appellant suggests, proof that a defendant solicited, procured, or invited a prostitute to engage in sexual intercourse or solicited, procured, or invited others to engage in sexual intercourse with a prostitute.

The appellant contends that Section 43.03 of our present Code is merely a codification of Articles 519 [Pandering] and 525 [Procuring] of our 1925 Penal Code and that the evidentiary requirements of old Articles 519 and 525 are applicable to Section 43.03. In Langer v. State, 489 S.W.2d 926, 927-28 (Tex.Cr.App.1973), we quoted from Guyton v. State, 365 S.W.2d 6, 8 (Tex.Cr.App.1973) as follows:

“ . . . that the offense of ‘procuring,’ in simple language, means that whoever shall procure any female for the purpose of meeting and having unlawful sexual intercourse with any male person, etc., shall be fined, etc. It is to be noted that the ‘procuring’ statute does not mention the word ‘prostitution.’ The ‘pandering’ statute penalizes those offenders who use various means to procure women to engage in prostitution or to become or remain a prostitute. Wyatt v. State, 169 Tex.Cr.App. 499, 335 S.W.2d 386, 387.
“Our construction of the above statutes is that the procurement of a female to be at a certain place for a single or isolated act of unlawful sexual intercourse constitutes the misdemeanor offense of procuring, punishable under Art. 525, Vernon’s Ann.P.C., while procurement of a female to take up the practice or profession of prostitution or to become or remain a common prostitute, without regard to where she is to ply her trade, constitutes the felony offense of pandering, under Art. 519, Vernon’s Ann.P.C.”

Thus, it is clear that both Articles 519 and 525 of the 1925 Code required proof that the defendant procured women for certain purposes.

However, both Vernon’s Ann.P.C., Articles 519 and 525 expressly required a defendant to solicit, procure, or invite a female to become an inmate of a house of prostitution or to perform unlawful sexual conduct, et cetera. See Vernon’s Ann.P.C., Articles 519 and 525. V.T.C.A., Penal Code, Section 43.03 does not expressly require any such conduct by a defendant.

We therefore hold that V.T.C.A., Penal Code, Section 43.03 does not require proof that a defendant solicited, procured, or invited a prostitute to engage in illegal sexual intercourse or solicited, procured, or invited others to engage in sexual intercourse with a prostitute. The appellant’s first contention is overruled in all respects.

The appellant’s second contention is that the trial judge committed reversible error by denying the appellant’s motion for a new trial based on newly discovered evidence. In support of his contention, the appellant has attached to his appellate brief an affidavit signed by Barbara Jean Phillips. The affidavit was not filed in the trial court and is not contained in the appellate record. It is well established that this Court will not consider affidavits or other matters attached to appellate briefs. Rasberry v. State, 535 S.W.2d 871 (Tex.Cr.App.1976); Grant v. State, 505 S.W.2d 259 (Tex.Cr.App.1974). Appellant’s second contention is overruled.

The judgment is affirmed.

      . V.T.C.A., Penal Code, Section 43.03.

      . See V.T.C.A., Penal Code, Section 21.01(1). Specifically, Phillips told Hosea and Gonzales she would perform fellatio upon them but she would not engage in sodomy with them.

      .The record reveals that the appellant and Phillips were merely living together.

      . Vernon’s Ann.P.C., Article 519 states:
      “Any person who shall procure or attempt to procure or be concerned in procuring with or without her consent a female for prostitution, or who by promises, threats, violence or by any device or scheme shall cause, induce, persuade or encourage a female to engage in prostitution; or shall by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procure any female person to become or remain a prostitute, or to come into or leave this state for the purpose of prostitution, or who shall procure any female person to engage in prostitution within this state, or to come into or leave this state for the purpose of prostitution, or who shall give or agree to receive or give any money or thing of value for procuring or attempting to procure any female person to engage in prostitution within this state, or to come into this state or leave this state, for the purpose of prostitution, shall be confined in the penitentiary for any term of years not less than two.”

      . Vernon’s Ann.P.C., Article 525 states:
      “Whoever shall invite, solicit, procure, allure or use any means in alluring or procuring any female to visit and be at any particular house, room or place for the purpose of meeting and having unlawful sexual intercourse with any male person, or to take part or in any way participate in any immoral conduct with men or women, or to use at such place any intoxicating liquor; or give to any person the name and address, or either, or photograph of any female for the purpose of enabling the person to whom the same is given to meet and have unlawful sexual intercourse or to bring about or procure such intercourse with such female shall be fined not less than fifty nor more than two hundred dollars and be confined in jail not less than one nor more than six months.”


text:
    Carlee EDMOND, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54143, 54144.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 31, 1978.
    James H. Kreimeyer, Belton, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for attempted murder [Cause No. 23,421 in the District Court of Bell County (our Cause No. 54,143)] and aggravated robbery [Cause No. 23,422 in the District Court of Bell County (our Cause No. 54,144)]. The jury assessed the appellant’s punishment at 20 years’ confinement in Cause No. 23,421 (our Cause No. 54,143) and 50 years’ confinement in Cause No. 23,422 (our Cause No. 54,144).

The appellant’s sole contention in both cases is that during the prosecutor’s final argument to the jury at the guilt or innocence stage of the trial, the prosecutor commented on the appellant’s failure to testify. We overrule this contention, but due to fundamental error in the court’s charge to the jury, the judgment in Cause No. 23,422 (our Cause No. 54,144) is reversed.

The evidence reflects that on July 10, 1975, at approximately 12:30 p. m., Libbie Jansky was walking down an alley between Main Street and Avenue A in Temple. As Jansky proceeded down the alley, she noticed a man, subsequently identified as the appellant, walking up the alley towards her. She also noticed that the appellant’s right hand was in his right hand pants pocket. As the appellant approached her, he pulled a small pistol from his right hand pants pocket. Jansky immediately began screaming. The appellant told her to “shut up,” and when she did not comply with his command, the appellant hit her with the hand in which he was grasping the pistol. Jan-sky fell to the ground, and when she got up, the appellant was running up the alley. Jansky also noticed that her purse was missing.

Oliver Trulove, who was eating lunch at Alice’s Cafe, heard Jansky’s screams. He went to the back door of Alice’s Cafe, which opened onto the alley, in time to see the appellant hit Jansky. He saw the appellant start to run down the alley, reverse his direction, and run up the alley. As the appellant neared the portion of the alley outside of Alice’s Cafe, Trulove started to yell. The appellant fired his pistol at Tru-love, striking Trulove in the side of the head.

Thereafter, the appellant was observed by a number of people as he tried to escape. During the appellant’s attempted escape, he abandoned Jansky’s purse. The appellant was subsequently apprehended by Officers Miller and Elliott of the Temple Police Department at some nearby apartments. A .22 caliber pistol was seized from the appellant’s right pants pocket when he was arrested.

The appellant’s sole contention in both cases is that the prosecutor commented on the appellant’s failure to testify. The appellant complains of the following portion of the prosecutor’s argument:

[PROSECUTOR] “Ladies of the jury, actually there is only one question or one point in this case that we are really concerned about, and that point or that question is accountability. Accountability. There has really been no contradictory testimony—
[DEFENSE ATTORNEY]: “Your Honor, I am going to object to that as being a comment on the defendant’s failure to testify.
[PROSECUTOR]: “Your Honor, it is not meant as such. He called no witnesses as to the facts of this case, and I believe I am entitled to comment on that.
“THE COURT: The objection is overruled.
. [DEFENSE ATTORNEY]: “Thank you, Your Honor.”

Immediately after the foregoing, the prosecutor stated:

[PROSECUTOR]: “You are charged in your charge that you are not to consider the fact that the defendant did not testify as to any indication of guilt, and I urge you to follow that portion of the charge as you were so instructed. I am not referring to that. What I am saying is that there has been no contradiction of the facts of this case. They are clear cut and set out to you and there can really be no doubt. We have proved that more than beyond a reasonable doubt. We talked about my burden of proof was not beyond a shadow of a doubt, but beyond a reasonable doubt. In all honesty I believe that I have proven that Carlee Edmond committed these two offenses beyond a shadow of a doubt. There were several eye witnesses. He was identified. The weapon he used was identified. There could be no doubt that he was the one who committed this crime. The only question is accountability. Is he going to be called to account for what he has done, or is he going to walk out of this courtroom a free man? If he is found not guilty by reason of insanity, that would be the effect of your verdict.”

In Nowlin v. State, 507 S.W.2d 534, 536 (Tex.Cr.App.1974), we stated:

“The rule is well established by this Court that before an argument of the prosecution will constitute a comment on the failure of the appellant to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the appellant must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion. Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974); Armstrong v. State, 502 S.W.2d 731 (Tex.Cr.App.1973); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967); Richardson v. State, 172 Tex.Cr.R. 299, 356 S.W.2d 676 (1962).”

In the present case, the appellant’s defense was insanity at the time of the commission of the offense. The appellant called only one witness, Dr. Roger Macery. Macery, who was appointed by the trial court to examine the appellant, testified that at the time of the commission of the offenses the appellant “was not capable of conforming his conduct to the requirements of the law,” the appellant did not know that his conduct was wrong, and that this was a result of schizophrenia.

In light of the defensive testimony, we construe the prosecutor’s final argument not as a comment on the appellant’s failure to testify, but as a comment on the appellant’s defensive theory and a plea for law enforcement. No error is shown. Appellant’s contention is overruled.

Our review of Cause No. 23,422 (our Cause No. 54,144) has revealed fundamental error in the charge.

V.T.C.A., Penal Code, Section 29.02(a) states:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to. obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”

V.T.C.A., Penal Code, Section 29.03(a), states:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.”

In the present case, the indictment in Cause No. 23,422 (our Cause No. 54,144) stated in pertinent part that on July 10, 1975, the appellant

“did then and there, while in the course of committing theft of good and lawful U. S. Currency, hereinafter called ‘the property,’ from Libbie Jansky, with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, a pistol, knowingly and intentionally threaten and place Libbie Jansky in fear of imminent bodily injury and death . . . .”

It is clear that the indictment alleged that the appellant committed robbery under V.T.C.A., Penal Code, Section 29.02(a)(2), by alleging that the appellant intentionally and knowingly threatened and placed Lib-bie Jansky in fear of imminent bodily injury and death, and further alleged that the offense was aggravated under V.T.C.A., Penal Code, Section 29.03(a)(2), by alleging that the appellant used and exhibited a deadly weapon.

The pertinent portion of the trial judge’s charge stated:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 10th day of July, 1975, in Bell County, Texas, the defendant, Carlee Edmond, while not insane, as hereinafter defined, did, without the effective consent of Libbie Jansky, the owner, take and exercise control over the corporeal personal property of Libbie Jansky, to-wit: money, from the possession of Lib-bie Jansky, with intent then and there to deprive Libbie Jansky of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyou nd a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Libbie Jansky or defendant used or exhibited a deadly weapon, to-wit: a gun, then you will find defendant guilty of aggravated robbery as charged in the indictment.” (Emphasis added)

It is clear that the charge properly authorized a conviction for robbery under Y.T. C.A., Penal Code,. Section 29.02(a)(2). However, as the emphasized portion of the charge reveals, the jury was authorized to convict the appellant for aggravated robbery if they found that the appellant either caused serious bodily injury to Libbie Jan-sky or if the appellant used or exhibited a deadly weapon.

In Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), the indictment alleged that the defendant had committed robbery under V.T.C.A., Penal Code, Section 29.-02(a)(2) and further alleged that the robbery was aggravated under V.T.C.A., Penal Code, Section 29.03(a)(2). The charge in Robinson, however, authorized the jury to convict the defendant under every conceivable theory under V.T.C.A., Penal Code, Sections 29.02(a) and 29.03(a). We there stated that

“[W]hile the charge authorized a conviction upon the theory alleged in the indictment, it also authorized a conviction upon every other conceivable theory under Sec. 29.02 and Sec. 29.03 which was not alleged in the indictment. We conclude that fundamental error is reflected and the conviction . . . must be reversed.”

Id. at 375.

See also Cleland v. State (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976).

In the present case, the charge in Cause No. 23,422 (our Cause No. 54,144) authorized the jury to convict the appellant on a theory not alleged in the indictment. This was fundamental error.

The judgment in Cause No. 23,422 (our Cause No. 54,144) is reversed and the cause is remanded. The judgment in Cause No. 23,421 (our Cause' No. 54,143) is affirmed.

VOLLERS, J., dissents.


text:
    Jose R. ALVAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 54149.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 31, 1978.

      Victor A. Speert, San Antonio, court appointed on appeal, for appellant.
    Ted Butler, Dist. Atty., Keith W. Burris, Donald A. Clowe and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction, enhanced by one prior felony conviction, for aggravated assault with a deadly weapon. After a jury found the appellant guilty, the appellant pleaded true to the enhancement paragraph and the trial judge assessed the appellant’s punishment at eighteen years’ confinement in the Texas Department of Corrections.

The appellant contends, among other things, that the evidence was insufficient. We reverse.

The trial testimony reveals that at approximately 2:00 a. m., on May 15, 1975, Officer Jack Weaver of the San Antonio Police Department was patrolling in a marked police car in the 1400 block of Cas-troville. When Weaver drove by Chino’s Dugout at 1410 Castroville, he saw a couple of men taking tire tools out of the trunk of a car. Weaver circled back around to a service station across the street from Chino’s Dugout and parked there. Immediately thereafter, Weaver saw a fight between five or six people begin.

Weaver drove up, got out of his police car, and shouted for the men to break up the fight and drop the weapons they were using. All of the men, except a man subsequently identified as the appellant, obeyed Weaver’s warning. The appellant, who was holding a wooden handled, hook-type linoleum knife, merely looked at Weaver.

Weaver ordered the appellant to drop the knife and when the appellant failed to comply with Weaver’s order, Weaver pulled his service revolver out of his holster. At this point the appellant was approximately five feet away from Weaver.

Weaver reiterated his warning that the appellant should drop the knife, but the appellant started to advance toward Weaver brandishing the knife. As the appellant slowly advanced toward Weaver, Weaver continued to order the appellant to drop the knife and simultaneously yielded ground to the appellant. When the appellant got within three to four feet of Weaver, the appellant made a swing at Weaver with the knife and Weaver aimed for and shot the appellant in the leg.

However, the appellant continued to slowly advance toward Weaver. Finally, Weaver brought his service revolver up and pointed it directly at the appellant and told him to drop the knife or “I’m going to have to kill you.” At this juncture, the appellant started to back away from Weaver and Weaver started to advance toward the appellant until the appellant dropped the knife and fell down. Weaver picked up the knife, closed the blade, and handcuffed the appellant.

The appellant contends that the evidence was insufficient to sustain the verdict.

The appellant was indicted for assault under V.T.C.A., Penal Code, Section 22.-01(a)(3), which states:

“(a) A person commits an offense if he:
* * * * * *
(2) intentionally or knowingly threatens another with imminent bodily injury .. . .”

The assault was aggravated pursuant to V.T.C.A., Penal Code, Section 22.02(a)(3), which states:

“(a) A person commits an offense if he commits assault as defined in Section 22.01 of this code and he:
(3) uses a deadly weapon.”

Thus, the State had to prove, among other things, that the knife used by the appellant was a deadly weapon.

V.T.C.A., Penal Code, Section 1.07(a)(ll), defines deadly weapon as:

“(11) ‘Deadly weapon’ means:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

It is well established that a knife is not a deadly weapon per se, although a knife can qualify as a deadly weapon through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972). Thus, the essential question is whether there is sufficient evidence to show that the appellant used the knife or intended to use the knife in such a way that it was “capable of causing death or serious bodily injury.” Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977); Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978).

In the present case, Weaver suffered no wounds. There was no testimony as to the size of the knife’s blade, although Weaver testified it looked sharp. Weaver did testify that he was in fear of serious bodily injury or death while the appellant brandished the knife.

We find the evidence regarding “the manner of its use or intended use” insufficient to show that the linoleum knife was “capable of causing death or serious bodily injury.” Harris v. State, supra; Danzig v. State, supra. We therefore find the evidence insufficient to show that the appellant used a deadly weapon. The State’s evidence, at best, revealed only the commission of an assault under V.T.C.A., Penal Code, Section 22.01(a)(2).

The judgment is reversed and the cause remanded.

      . V.T.C.A., Penal Code, Section 22.02(a)(3).


text:
    Virgle L. MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 54162.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 31, 1978.

      Ronald W. Aultman and Jerry J. Loftin, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Jerry D. Buckner and Marvin Collins, Asst. Dist. Attys., Fort Worth, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

Appellant was convicted of arson. V.T. C.A., Penal Code, Sec. 28.02(a)(2). He was assessed a five-year probated punishment.

In his first ground of error, appellant questions the sufficiency of the evidence. A charge on circumstantial evidence was given. The facts are given below.

Around 8:35 a. m. on the morning of the fire, February 19,1975, appellant was in the Purvis Real Estate office, across the street from his restaurant (Virgle’s La Barn), to request paper and pen. His stated purpose, according to the office secretary, was to put a “Closed Today” sign on his restaurant. Mr. Purvis also saw appellant in the office. About ten minutes after appellant left the office, Mr. Purvis heard a stationary siren from across the street and he left his office to observe the source. He told his secretary to call the Fort Worth Fire Department as he saw appellant’s restaurant on fire. The first alarm was entered at 8:51 a. m.

Appellant’s cook, part-time helper, and their driver, on the morning of the fire, observed appellant leaving the area at a fast or medium speed. Two of these witnesses saw appellant run a stop sign in his departure. This was just prior to their 8:50 a. m. arrival at the restaurant. Upon approaching the front door of the restaurant, the cook saw smoke in the interior of the restaurant, as did her companion through a side window. The cook called the fire department from a nearby shop. Approximately an hour later the appellant, having returned to the scene, asked the cook not to mention seeing him earlier that morning.

Fire investigators from the Fort Worth Fire Department arrived at the scene between 9:05 and 9:15 a. m. while the fire was in progress. After the fire was extinguished and under control, the investigators entered the structure and detected the presence of flammable liquids or vapors with a portable detection device. One investigator testified to having smelled gasoline within the burnt structure. Samples of carpet, carpet padding, liquid, wood baseboard, and attic insulation were collected as evidence by the investigators. Certain samples were released to a private investigative company and different samples to the Fort Worth Police Department Crime Lab.

A consultant to the private firm, an assistant professor of chemistry, conducted Dean-Stark extraction and gas chromatography tests on State’s Exhibits 22 and 25. Both samples were found to contain gasoline. This witness further testified that a fire would not necessarily consume all the gasoline if such were used to start a fire; some amount would remain for subsequent detection.

The Fort Worth Police Department crimi-nalist was provided State’s Exhibit 23 for testing. Through a process of steam distillation and gas chromatographic comparison analysis, the criminalist concluded that the carpet specimen in State’s Exhibit 23 contained gasoline.

Appellant purchased insurance coverage for his building in the amount of $50,000.00 and for its contents in the amount of $30,-000.00 in December, 1974. The policy was purchased after solicitation from the insurance agent and for an amount of coverage less than one proposed by the agent, but greater than that previously carried.

Both fire investigators testified that based on their experience and investigation they were of the opinion that the fire was of an incendiary origin. The senior investigator testified that he inspected the heater and found nothing therein that caused this fire.

The defense presented extensive testimony in an effort to create the inference that the fire was pyrophoric in origin, i. e., not incendiary. The defense expert testified that he was of the opinion that the fire originated in the central heating unit area of the ceiling. This expert investigated the fire scene more than three months after the fire. None of the defense witnesses conducted gas chromatography tests on the State’s exhibits or their own samples from the structure.

The appellant testified that he received an early morning call informing him that his previously comatose and terminally ill ex-wife had regained consciousness temporarily and would be able to discuss their offsprings’ welfare; he went to his restaurant to advise his employees not to admit customers until his return; he forgot his key in his haste; he went to the Purvis Real Estate office to make a sign; the office secretary made a sign for him that said “Closed Today; ” he threw the sign away because it misstated his intended message; he left to briefly check on his wife who was also hospitalized; he left his wife to confer with his ex-wife where he received a call about the fire; he returned to the scene; he did not ask his cook to conceal his previous presence that morning; he did not see the cook or the others with her when he was leaving the restaurant for the hospitals that morning; his business was good; he did not set fire to his restaurant or have anyone else do so; he had no knowledge of gasoline ever being inside his restaurant premises; and he intended to make a claim against his insurance company for the loss incurred and had in fact filed suit for such purpose.

It is undisputed that a criminal conviction can be had solely upon circumstantial evidence. 24 Tex.Jur.2d, Evidence, Sec. 729, p. 403. Every circumstantial evidence case must be tested by its own facts to ascertain whether the evidence is sufficient to sustain the conviction. Indo v. State, Tex.Cr.App., 502 S.W.2d 166; Denney v. State, Tex.Cr.App., 558 S.W.2d 467; Baker v. State, Tex.Cr.App., 447 S.W.2d 172. In making that determination, the facts must be reviewed in the light most favorable to the verdict. Brown v. State, Tex.Cr.App., 475 S.W.2d 938; Carlisle v. State, Tex.Cr.App., 549 S.W.2d 698. It must be noted, especially in this case, that the jury is the ultimate judge of the credibility and weight to be attached to the testimony of the witnesses. Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105; Wells v. State, Tex.Cr.App., 447 S.W.2d 939; Angle v. State, Tex.Cr.App., 486 S.W.2d 308; Pope v. State, Tex.Cr.App., 505 S.W.2d 556.

The elements to be proven by the State in a prosecution under V.T.C.A., Penal Code, Sec. 28.02(a)(2), are: (1) a person (2) starts a fire (3) with the intent to damage or destroy the building (4) to collect the insurance coverage thereon.

The prior Penal Code defined arson as the “wilful burning of any house . . . ” Article 1034, V.A.P.C. (1925). The culpable mental state has been changed, nominally, from wilful to intentional. As noted in the Practice Commentary to See. 28.02, the “substance” of the culpable mental state required for an arson offense is probably the same. See also Brown v. State, 167 Tex.Cr.R. 621, 322 S.W.2d 626; 30 Tex. Jur.2d, Indictments and Informations, Sec. 30, p. 587; 16 Tex.Jur.2d, Criminal Law, Sec. 23; 2 Branch’s Ann.Penal Code (3d Edition), Sec. 28.02, pp. 244-245.

V.T.C.A., Penal Code, Sec. 6.03(a) defines the applicable culpable mental state:

“(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”

In 5 Am.Jur.2d, Arson and Related Offenses, Sec. 51, p. 842, it is stated:

“It [intent] may also be inferred from the conduct of the accused, from the wilfulness, from the circumstances, [and] from the means employed . . . .”
* * * * * *
“While the intent cannot be inferred from the mere act of burning, it may be found from all the facts in the case.”

It is clear that the offense of arson still requires that the fire involved be of an incendiary origin. This is implicit in the requirement that the burning be intentional. That the fire was of an incendiary origin is supported by the testimony of the chemistry experts who found gasoline to be present in the evidence samples seized from the premises on the day of the fire. Splawn v. State, 162 Tex.Cr.R. 197, 283 S.W.2d 66. The senior fire investigator testified that his examination of the heating unit revealed no apparent cause for the fire there, thus negating the defensive theory on the origin of the fire.

Appellant relies heavily upon Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856, for the proposition that the evidence is insufficient to show appellant to have wilfully burned his restaurant. In that case a Highway Patrolman who investigated the case four or five days after the fire testified that in the front of the cafe there were “trails or sections . . . burned in the floor.” Such evidence of “trails” tends to show the use of a flammable liquid in setting an incendiary fire.

The Court in Massey was concerned with the indulgence of an inference upon an inference in establishing the fire to be of an incendiary, as opposed to natural or accidental, origin. The first inference was that the flammable liquid was poured prior to the fire. This inference was undermined by the State’s failure to show that the condition of the premises was the same when the patrolman investigated the scene at a later date as it was the day of the fire. The second inference built upon the first was that the fire was of an incendiary origin and, in turn, that Massey wilfully set the cafe ablaze. The weakness of the Massey case was accentuated by (1) the strong alibi case made out by Massey and his witnesses and (2) the uncontroverted showing that the fire originated in the rear of the cafe.

In the instant ease the appellant is shown to have been present shortly before the fire was observed and reported. He was trying to notify potential customers and/or his employees that the restaurant would be closed that day. He left the scene in a hurried manner. Flight is a circumstance tending to show guilt. Drager v. State, Tex.Cr.App., 548 S.W.2d 890; Carvajal v. State, Tex.Cr.App., 529 S.W.2d 517. He also tried to cover up his prior presence on the day of the fire according to the testimony of his cook. Scientific tests on the samples secured from the premises on the day of the fire revealed the presence of a highly volatile substance in the carpet and attic insulation.

We must conclude, therefore, on the record before us that the evidence was sufficient to sustain the jury’s verdict of guilty.

Ground of error one is overruled.

Appellant’s remaining eight grounds of error complain of various portions of the prosecutor’s closing argument at the guilt-innocence phase of the trial. The complained of arguments are set forth below according to the respective ground of error.

Ground of Error II:

“Do you think it was an accident? Now that is where Richard Tabb comes in, who was so impressed with himself and his own credentials that he wouldn’t change his opinion if there had been fifty gallons of gasoline on that floor. That is how positive he was right. And fire will not burn down unless accelerated by an accelerant, will it? Isn’t that what he said? He has only been working with fire for sixteen years. He has been so busy writing books and giving lectures that I don’t know how he had time to even look at a fire. He hasn’t been a fireman out in the field for thirty-four years, out in the field working with this stuff and doing the job himself. He’s been sitting up in an ivory tower somewhere lecturing.”

Appellant’s objection [outside the record] was sustained, the jury was instructed to disregard, but the motion for mistrial was overruled. The trial court’s instruction to disregard cured any error. Hodge v State, Tex.Cr.App., 488 S.W.2d 779. Ground of error two is overruled.

Ground of Error III:

“What about Sylvia Meek? She was the very first witness out there for the Defense, whose character and reputation in the community to be honest and fair dealing is bad.”

Appellant’s objection [outside the record and calling for conclusions] was sustained, no request for an instruction was made, and the motion for mistrial was overruled. However, the prosecutor’s argument amounts to no more than a fair deduction from the evidence. Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230. Ground of error three is overruled.

Ground of Error IV:

“Virgle Miller left in a hurry. The fire was of incendiary nature. The other possibilities—not probabilities—”

Appellant’s objection [incorrect statement of fact and a matter for the jury to determine] was sustained, the jury was instructed to disregard, but the motion for mistrial was overruled. The prosecutor’s argument complained of here arose while recapitulating the evidence adduced at trial. No error is shown. Alejandro v. State, supra. Ground of error four is overruled.

Ground of Error V:

“When you are talking about beyond a reasonable doubt and beyond a moral certainty, why, I’m glad that we’ve got a rule that says be morally certain they are guilty before you find them guilty. What more is that then being reasonable to somebody? I don’t see where there is that much difference where circumstantial evidence—”

Appellant’s objection [outside the record] was overruled. Appellant’s ground of error does not comport with his trial objection and, therefore, nothing is presented for review. Bouchillon v. State, Tex.Cr.App., 540 S.W.2d 319; Williams v. State, Tex.Cr.App., 531 S.W.2d 606; Reece v. State, Tex.Cr.App., 521 S.W.2d 633.

Ground of Error VI:

“True, you have got to decide in part on circumstantial evidence, but is it really that tough when you cut out all the ba-larney and all the hydrocarbons and hotshots? Is it really all that tough? Is the day ever going to come in this county or any other place, hopefully, that in the United States where you can get the world’s foremost experts all to — I don’t think there is any real testimony that Tabb is the world’s foremost expert— where you can buy the best witnesses in the nation to come and testify for you — ”

Appellant’s objection was general and coupled with a request to the court “to instruct the jury not to consider that terminology.” The court apparently understood the basis for the objection, which was obvious, since it instructed the jury “not [to] consider the statement for any purpose.” Appellant’s motion for mistrial at that point was overruled. The prosecutor’s argument did not inject new and harmful facts material to the issue of guilt or punishment, but constituted a mere general conclusion. Thus, the trial court’s instruction to disregard cured any potential prejudice. Clanton v. State, Tex.Cr.App., 528 S.W.2d 250; Holloway v. State, Tex.Cr.App., 525 S.W.2d 165; Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; Hunt v. State, Tex.Cr.App., 511 S.W.2d 954; Jackson v. State, Tex.Cr.App., 536 S.W.2d 371. Ground of error six is overruled.

Ground of Error VII:

“I hope the day never comes when because you have got the sharpest expert at your command, three of them; the sharpest attorneys at your command, the smoothest verbage at your command, that you walk. That because you are a white collared businessman you get treated differently than any eighteen or nineteen year old burglar.
* * * * * #
“I hope the day never comes true when it makes any difference as to how the law is enforced as to whether you’re black or white or Jewish or Catholic or Protestant or rich or poor or got a highpowered lawyer or a public defender or a chemist from Chicago — ”

Ground of Error VIII:

“Ladies and Gentlemen, you are the one last link in law enforcement because without the Jury it doesn’t make any difference how much work we do, how much work the people from the Fire Department do. It just doesn’t make any difference without the Jury to have the courage to make a stand and say what they think is right and not be flimflammed by any tricky talk.”

The arguments complained of under grounds of error seven and eight constitute a plea for equal law enforcement and justice which is not error. Alejandro v. State, supra. The argument complained of in ground of error eight merely urges the jury to be cautious in its evaluation of the jury arguments and/or testimony. No reversible error is shown. Salinas v. State, Tex.Cr.App., 458 S.W.2d 933; Hurd v. State, Tex.Cr.App., 513 S.W.2d 936. Grounds of error seven and eight are overruled.

Ground of Error IX:

“Again, like I say, I’m going to thank you for your verdict no matter what it is. I know it’s been a grueling week and a half for you and I know you are going to do your best to arrive at an appropriate verdict.
“I just ask you to find him guilty because he is guilty under the evidence.”

Appellant’s .ninth ground of error reflects nothing more than the prosecutor’s deduction of what the evidence shows. No error is shown. Alejandro v. State, supra. In addition, appellant’s general trial objection presents nothing for review. Dyche v. State, Tex.Cr.App., 478 S.W.2d 944. Ground of error nine is overruled.

No reversible error having been demonstrated, the judgment is affirmed.

      . Virgie Harris.

      . State’s Exhibit 22 was attic insulation; State’s Exhibit 25 was a piece of carpet.

      . State’s Exhibit 23 was a plastic bag containing red carpet, carpet padding, and pieces of wood.

      . An expert witness on fire and explosion investigations from Chicago, Illinois, called by the defense.

      . Appellant’s objection [completely outside the record] was overruled.

      . Appellant’s objection [outside the record] was sustained insofar as the argument referred to comparisons of rich and poor. The jury was instructed to disregard “any kind of character of argument of that type.” Appellant’s motion for mistrial was overruled.

      . Appellant’s objection [to the phrase “flimflammed by any tricky talk”] was overruled.

      . Appellant’s objection was general and was overruled.


text:
    Donnie Ray PORTER, Appellant, v. The STATE of Texas, Appellee.
    No. 56957.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 31, 1978.
    Steven G. Condos, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., T. Michael Sutton, Paul Macaluso and Rider Scott, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of heroin; the punishment, enhanced under V.T.C.A., Penal Code, Section 12.42(d) by two prior felony convictions, was assessed by the jury at life imprisonment.

Section 12.42(d) of the Penal Code provides:

“(d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

This conviction must be reversed because there is no evidence to show that appellant’s second previous conviction was for an offense committed after the first previous conviction became final.

The indictment alleged that the primary offense occurred on September 25, 1976; that prior to that date the appellant had been convicted on May 28, 1956, for the offense of robbery in Cause No. C 113 IH in the Criminal District Court of Dallas County; and that prior to the commission of these two offenses, on July 20, 1951, appellant was convicted for the offense of felony theft in Cause No. 130-AB in Criminal District Court No. 2 of Dallas County.

Section 12.42(d) requires the State to prove beyond a reasonable doubt that the second previous conviction of the accused was committed after the first became final. Wiggins v. State, 539 S.W.2d 142 (Tex.Cr.App.1976); Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977). This was also required by our former Penal Code. Article 63, V.A.P.C. (1925). See, e. g., Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976).

In this case the State introduced the judgment and sentence from each of the two prior convictions after showing by fingerprint comparisons that appellant was the person who had been the subject of those convictions. Appellant’s conviction for robbery in Cause No. C 113 IH was final on May 28, 1956; therefore, this conviction was final before the commission of the primary offense, which, as the State’s evidence showed, occurred on September 25, 1976.

Appellant’s theft conviction in Cause No. 130-AB was shown to have been final on July 20, 1951. However, the record fails to show when the offense in Cause C 113 IH was committed. Therefore, there is no evidence in the record to show that the conviction in Cause No. 130-AB was final when appellant committed the offense in Cause No. C 113 IH. The State has thus failed to meet its required burden under Section 12.-42(d). Wiggins v. State, supra; Hickman v. State, supra.

Since the jury assessed punishment, we may not reform the sentence or remand for a new trial on punishment only. See Hickman v. State, supra, 548 S.W.2d at 737, and cases there cited.

Accordingly, the judgment is reversed and the cause remanded.

      . On December 14, 1977, we abated this appi in an unpublished per curiam opinion. The appeal is now reinstated.


text:
    Ex parte Casper WALTERS.
    No. 56963.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 31, 1978.

      Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is a post conviction application for a writ of habeas corpus under Article 11.07, Vernon’s Ann.C.C.P.

The petitioner was indicted on July 23, 1976, for credit card abuse, in Cause No. F-76-6122-QH. On January 14, 1977, the petitioner pleaded guilty to the indictment and the trial judge assessed his punishment at seven years’ confinement in the Texas Department of Corrections. No appeal was taken.

On November 2, 1977, the petitioner filed his application for a writ of habeas corpus. His sole contention is that his conviction is void because the indictment was fundamentally defective. We grant the requested relief.

The indictment, omitting the formal portions, states that the petitioner:

“. . . did unlawfully, then and there present to Linda Moore, a Sears Credit Card Number 0 95742 5 6500 5, with intent to obtain property and service, without the effective consent of the cardholder William R. Opry.”

V.T.C.A., Penal Code, Section 32.31(b) states that:

“(b) A person commits an offense if:
“(1) with intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that: “(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder; or
“(B) the card has expired or has been revoked or cancelled;
“(2) with intent to obtain property or service, he uses a fictitious credit card or the pretended number or description of a fictitious credit card;
“(3) he receives property or service that he knows has been obtained in violation of this section;
“(4) he steals a credit card or, with knowledge that it has been stolen, receives a credit card with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder;
“(5) he buys a credit card from a person who he knows is not the issuer;
“(6) not being the issuer, he sells a credit card;
“(7) he uses or induces the cardholder to use the cardholder’s credit card to obtain property or service for the actor’s benefit for which the cardholder is financially unable to pay;
“(8) not being the cardholder, and without the effective consent of the cardholder, he signs or writes his name or the name of another on a credit card with intent to use it;
“(9) he possesses two or more incomplete credit cards that have not been issued to him with intent to complete them without the effective consent of the issuer. For purposes of this subdivision, a credit card is incomplete if part of the matter that an issuer requires to appear on the credit card before it can be used (other than the signature of the cardholder) has not yet been stamped, embossed, imprinted, or written on it;
“(10) being authorized by an issuer to furnish goods or services on presentation of a credit card, he, with intent to defraud the issuer or the cardholder, furnishes goods or services on presentation of a credit card obtained or retained in violation of this section or a credit card that is forged, expired, or revoked; or
“(11) being authorized by an issuer to furnish goods or services on presentation of a credit card, he, with intent to defraud the issuer or a cardholder, fails to furnish goods or services that he represents in writing to the issuer that he has furnished.”

It is clear that the indictment was drafted to satisfy Section 32.31(b)(1)(A). The elements of credit card abuse under Section 32.31(b)(1)(A) are:

(1) a person
(2) with intent to obtain property or service fraudulently
(3) presents or uses
(4) a credit card
(5) with knowledge that it has not been issued to him and
(6) with knowledge that it is not used with the effective consent of the cardholder.

According to the petitioner, the indictment failed to allege that the petitioner used the card with knowledge that it had not been issued to him and with knowledge that his use was not with the effective consent of the cardholder.

The petitioner’s contention is well founded. The indictment fails to allege that petitioner presented a credit card with knowledge that it had not been issued to him and with knowledge that he used the card without the effective consent of the cardholder. Thus, the culpable mental state was not alleged. Cf. Carpenter v. State, 551 S.W.2d 724 (Tex.Cr.App.1977). Also, the indictment fails to properly allege the requirement that the act be performed with the “intent to obtain property or service fraudulently” since it omits the word fraudulently. Cf. Bocanegra v. State, 552 S.W.2d 130 (Tex.Cr.App.1977). Thus, the indictment is fundamentally defective.

The petitioner’s application for writ of habeas corpus is granted and the prosecution under this indictment is dismissed.

It is so ordered.

VOLLERS, J., dissents.

      . V.T.C.A., Penal Code, Section 32.31.

      . It is clear that a fundamentally defective indictment may be challenged by habeas corpus under Article 11.07, Vernon’s Ann.C.C.P. Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

      .We note at the outset that the trial judge, without a hearing, has entered findings of fact and conclusions of law which support the appellant’s position.

      . See V.T.C.A., Penal Code, Sections 6.02 and 6.03.

      . See Article 21.05, Vernon’s Ann.C.C.P.

      . In Carpenter v. State, supra at 725, we held that in reference to V.T.C.A., Penal Code, Section 20.04, “[the] intent to violate and abuse another” was not a culpable mental state, but an element of the offense. There, as in the present case, the statute defining the offense specifically enumerated a culpable mental state. Thus, it appears logical to conclude that the required “intent to obtain property or service fraudulently” is only an element of the offense, not a culpable mental state. Cf. Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977) and Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976).


author: ONION, Presiding Judge.

text:
    Bobby Lee VICKERY, Appellant, v. The STATE of Texas, Appellee.
    No. 54859.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 31, 1978.

      Allan K. Butcher, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, J. R. Molina, Donald N. Turner and Howard M. Fender, Asst. Dist. Attys., Fort Worth, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for sexual abuse of a child. V.T.C.A., Penal Code, § 21.10. Punishment was assessed at four (4) years’ confinement by the court following a guilty verdict.

On appeal appellant complains the court erred in refusing to allow him to interrogate the jury panel concerning the accomplice witness rule (Article 38.14, V.A.C.C. P.), that the court erred in failing to grant his motions for instructed verdict at the close of the State’s case and again when all the evidence had been concluded on the ground that the complainant was an accomplice witness as a matter of law and his testimony was not corroborated, that the court erred in overruling his objections to the charge and his special requested charges that the court instruct the jury the complainant was an accomplice witness as a matter of law or submit to the jury the fact issue of whether the complainant was an accomplice witness. He also contends the court erred in overruling his objection and special requested instruction on the issue of whether the complainant was a child of sufficient discretion to understand the nature and illegality of the acts and if so, that he must be considered an accomplice witness whose testimony would require corroboration.

W-R_S_, fifteen years old, testified that on New Year’s Eve, 1975, his parents took him to a friend's house in Watauga for the night as he and his friends were going squirrel hunting the next morning. They arrived about midnight. After watching television for awhile, everyone retired about 12:30 a. m. on January 1, 1976. W_R_S_went to a bedroom which had a king size bed which he was to share with thirteen year old Darryl Dupree and the appellant Vickery. After Dupree had apparently gone to sleep, the appellant asked W_ R-S_if he “got hot at night,” and upon receiving an affirmative answer, the appellant masturbated W- R-S_and then placed his penis and then his finger in W- R- S-⅛ anus. The next morning the appellant again masturbated W_ R-S_After hunting for awhile, W:_ R_ S_ went home shortly after noon. The next day he told a fifteen year old neighbor about the masturbation. Later he told Ronald and Donald Johnson, next door neighbor boys, about the incident in question. On March 31, 1976, W_ R_ S_ told Tommy Smith, stepfather of the Johnson boys, and on that date Smith took W_R-S_to his father and the complainant for the first time told his father about the masturbation and act of sodomy. This was three months after the alleged offense.

On cross-examination he acknowledged that during the incident he was in pain but did not cry out, call for help or try to awaken the third person in the bed, or get up and walk away. He did testify that the appellant was taller than he was.

Appellant’s father testified that on March 31, 1976 in the presence of Smith, his son had reported to him the events which had occurred at the Dupree home. The father then went to the authorities to file a complaint. These were the only two witnesses in the case.

Article 38.14, V.A.C.C.P., 1965, provides:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

It has been said that an accomplice witness is a discredited witness because his testimony alone cannot furnish the basis for a conviction. Cast v. State, 164 Tex.Cr.R. 3, 296 S.W.2d 269 (1956). It has long been held that an accomplice witness is a person who, as a party to the offense or under the law of criminal responsibility (V.T.C.A., Penal Code, §§ 7.01 and 7.02) (formerly principal, accomplice or accessory), was connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether he was present and participated in the crime. Article 38.14, supra, Anno. Note 2.

The general rule provided by Article 38.14, supra, has long been the rule in this state. It is observed, however, that Article 38.07, V.A.C.C.P., was amended in 1975 to read:

“A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the Victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim.” (Acts 1975, 64th Leg., p. 479, ch. 203, § 6, eff. Sept. 1, 1975.)

Article 38.07 had formerly read:

“In prosecutions for seduction the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon her testimony unless the same is corroborated by other evidence tending to connect the defendant with the offense charged.”

The changes wrought by the 1975 amendment are readily apparent. Further, it clearly appears that it was the legislative intent that testimony of the victim of a sexual offense under Chapter 21 of the Penal Code need not be corroborated in order to support a conviction if the requirements of the statute are met. This would operate as an exception to the general rule set forth in Article 38.14, V.A.C.C.P., in those cases where one is the victim of a sexual offense and would otherwise be an accomplice witness.

In 53 Tex.Jur.2d, Statutes, § 186, pp. 280-284, it is written:

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

We conclude that Articles 38.07 and 38.14, supra, are in pari materia and when construed together can be harmonized. The general rule of Article 38.14, supra, applies except where the accomplice witness is a victim of a sexual offense in which the testimony of the witness need not be corroborated in order to support a conviction.

Appellant argues that “victim” and “accomplice witness” are far from being interchangeable. While not every victim of a sexual offense is an accomplice witness and vice versa, this does not mean that a person cannot be a victim of a sexual offense and also be an accomplice witness except for the provisions of Article 38.07, supra. Appellant’s brief states, “It is hard to imagine that the legislature meant to strike down this entire area of the law and wipe out a long line of cases dealing with accomplice witnesses in sex cases.” Nevertheless, Article 38.07, supra, speaks for itself.

With this background, we turn to the grounds of error advanced by the appellant. He first urges the court denied him an opportunity to interrogate the jury panel on the law relating to the accomplice witness rule. The record reflects the court based its ruling on Article 38.07, supra, and the circumstances of this case show the fifteen year old complainant was the victim of the offense of sexual abuse of a child (V.T.C.A., Penal Code, § 21.10). Thus, if it was established that the complainant was also an accomplice witness, his testimony need not be corroborated in order to support a conviction. We cannot conclude that error is reflected. Care should be taken, however, in limiting voir dire examination in this regard. There well may be witnesses other than the victim in a sexual offense case who may be accomplice witnesses. An accused would surely be entitled to state the accomplice witness rule and interrogate the panel concerning the same. However, this was not the situation in the instant case.

As to appellant’s remaining grounds of error, we conclude they are without merit in light of the holding that Article 38.07, supra, controls over Article 38.14, supra, where the witness in question is the victim of a sexual offense under Chapter 21 of the Penal Code even though it be shown that otherwise he would be an accomplice witness.

The judgment is affirmed.


author: W. C. DAVIS, Judge.

text:
    Hal W. JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 54262.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 7, 1978.
    Josh Don Curnell, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Carl W. Hobbs and Candelario Elizondo, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

After a trial by jury, the appellant was found guilty of assault, V.T.C.A., Penal Code, See. 22.01(a)(1). The court assessed punishment at thirty days confinement in the Harris County jail. We affirm.

The complainant testified that the appellant dragged her down a stairwell of the University of Houston main library. Her screams brought Mr. McDaniel, who interceded as appellant was choking her. Appellant escaped but was apprehended several weeks later, after being seen again by the complainant in the library.

The appellant raises five grounds of error.

In ground of error one, he contends that the trial court erred in failing to charge the jury on mistaken identity.

The two State’s witnesses identified the appellant as the assailant. The court’s charge to the jury on the burden and standard of proof, the presumption of innocence, and the law of alibi, substantially incorporated his requested instructions. Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977). The charge, when considered as a whole, adequately protected his rights. Article 36.19, Vernon’s Ann.C.C.P. Pittman v. State, 554 S.W.2d 190 (Tex.Cr.App.1977).

Ground of error one is overruled.

In ground of error two, the appellant urges that his conviction is void because the State failed to timely disclose exculpatory material.

The complainant said that she made a written report at the traffic and security office, and, later, a written statement at the police department. On cross-examination, the prosecuting attorney tendered the police offense report, but stated that he did not have the complainant’s written statement. Appellant’s counsel made no objection to its absence, requested no trial continuance for a subpoena duces tecum, nor later requested that it be included in the appellate record. There is no showing of harm. Error, if any, was not preserved. Moore v. State, 509 S.W.2d 349 (Tex.Cr.App.1974); Toler v. State, 546 S.W.2d 290 (Tex.Cr.App.1977).

Ground of error two is overruled.

In ground of error three, appellant argues that the trial court committed reversible error in failing to charge the jury on the issue of his good character.

In Jamison v. State, 141 Tex.Cr.R. 349, 148 S.W.2d 405 (1941), quoting Pharr v. State, 9 Tex.App. 129 (Austin Term 1880), we said:

“ ‘It was not incumbent upon the judge to give a special instruction on good character. The law permits one accused of crime to put his previous good character before the jury for their consideration. All the court is required to do is to permit the evidence to go to the jury, to be by them considered in connection with the other testimony in the case, in order to determine from the whole evidence the guilt or innocence of the accused.’ ”

See also Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106 (1954); Kirkpatrick v. State, 515 S.W.2d 289 (Tex.Cr.App.1974).

Ground of error three is overruled.

In ground of error four, the appellant next complains that the court erred in failing to charge the jury as to the credibility of the witnesses.

The court’s instructions concerning the credibility of the witnesses and the weight to be given their testimony substantially incorporated appellant’s requested charge. Sheppard, supra.

Ground of error four is overruled.

In his final ground of error, the appellant contends that the pretrial identification procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to amount to a denial of due process.

Both State’s witnesses observed the appellant committing the assault. There was no pretrial lineup or photographic spread. Their in-court identification was the result of their observation of him at the time of the alleged act. The in-court identification was of independent origin. Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972); Bermudez v. State, 533 S.W.2d 806 (Tex.Cr.App.1976).

Ground of error five is overruled.

The judgment is affirmed.