author: BYERS, Judge.

text:
    Kenneth Wayne GOEDEL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 4, 1978.
    Certiorari Denied by Supreme Court June 26, 1978.

      Stanley H. Sidicane, Nashville, for appellant. ■
    Brooks McLemore, Jr., State’s Atty. Gen., William 0. Kelly, Asst. State’s Atty. Gen., Harold B. McDonough, Jr., Claudia Bonny-man, Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

BYERS, Judge.

The Appellant, along with Wanda Faye Harrison, who does not appeal, was convicted of conspiracy to commit murder and sentenced to serve not less than four (4) years nor more than ten (10) years.

The Appellant says the trial court should not have allowed a portion of ’Wanda Faye Harrison’s statement to be introduced which showed she was having an affair with a seventeen (17) year old boy, that the conduct and remarks of the trial judge during the trial of the case prejudiced the Appellant, that the jury was polled by the trial judge in a manner which interferred with an independent decision by the jury in reaching their verdict, and that the Court Reporter failed to record important conferences held by the attorneys and the trial judge at the bench.

The assignments of error are overruled and the judgment is affirmed.

During the month of January, 1975, the Appellant, who was working in Memphis, revealed to a female co-worker, Laverne Reynolds, a plan in which he was to kill William Harrison at the request of Harrison’s, wife, Wanda Faye Harrison. This co-worker refused to aid the Appellant who wanted her to support a claim that he was in Memphis on the date when the killing of Harrison was to occur.

Mrs. Reynolds informed a member of the Memphis Police Department of this conversation in an effort to prevent the murder from’taking place. The Memphis authorities placed an electronic transmitter in her purse and monitored subsequent conversations between her and the Appellant. In addition, the police recorded, with Mrs. Reynolds’ consent, a telephone conversation between her and the Appellant about this matter. By this method, the Memphis authorities learned that Wanda Faye Harrison was to furnish the Appellant with a gun to be used in killing her husband. Also, on the night in which the killing was to be carried out, she was to leave a side door to her home unlocked in order for the Appellant to enter and kill her husband as he slept.

The Appellant was to make a silencer for the gun and on the night selected for the execution, he was to travel by bus to Nashville and kill the husband. The Appellant’s wife was to meet him at the bus station in Nashville and drive him to the Harrison home. After the killing of William Harrison, she was to drive the Appellant back to Memphis.

The Memphis authorities notified the Nashville police of what they had learned and the police of these cities coordinated their activities to arrest the responsible persons and to prevent the murder of William Harrison.

On January 31, 1975, the Appellant boarded a Greyhound Bus - in Memphis, which was routed to Nashville. The Memphis police notified the Nashville police that the Appellant was en route to Nashville. The Nashville police observed this bus arrive at the Nashville depot and saw the Appellant alight therefrom. He entered a Honda automobile which was driven by his wife. They proceeded in the direction of the Harrison home. The police kept this vehicle under surveillance until it arrived in the vicinity of the Harrison home, at which time they stopped the vehicle and arrested the Appellant. When arrested, the Appellant had a .22 calibre pistol, with ammunition, in his possession. He also had a crude silencer which he had fashioned to be used on this pistol. He was wearing, among other things, white, cotton gloves with a rubber glove being worn under the cotton glove on his right hand, and a pair of boots which were two sizes smaller than his feet. In the vehicle were three bags of sand, a lead weight and a five gallon can filled with gasoline. Investigation by the police revealed that the Appellant intended to carry the sand or weight so that his footprints would make a deeper impression in the soil, which had apparently been made wet by rain, than would his normal body weight. The gasoline was to avoid a stop for fuel on the return to Memphis. The evidence showed that Wanda Faye Harrison had delivered the gun, ammunition and gloves to the Appellant’s home in Nashville.

While the Appellant was being followed, two police officers were dispatched to the Harrison home to prevent the murder of William Harrison in the event the Appellant eluded the officers who trailed him. When these officers arrived, they found a door unlocked and partially opened as the planning of the crime had envisioned. The officers entered the home and arrested Wanda Faye Harrison.

Wanda Faye Harrison and the Appellant gave statements to the police in which they confirmed essentially what the police investigation had revealed. Wanda Faye Harrison maintained in her statement to the police and in her testimony at trial that the entire episode was only a joke and was not to be carried out. She related, however, that she realized the Appellant was serious in his intentions and that she was going to intercept him when he entered her home through the unlocked door to prevent the murder of her husband. She did not, however, lock the door or warn her husband of this impending danger. Her explanation for not doing either of these things was not convincing. The Appellant offered no evidence at trial.

The Appellant says he may object to evidence introduced against Wanda Faye Harrison because in a case charging a conspiracy to commit a crime the acts of each are considered imputable to all of the conspirators. Delaney v. State, 164 Tenn. 432, 51 S.W.2d 485 (1932).

We are of the opinion that the evidence concerning Wanda Faye Harrison’s involvement with a young boy was admissible. She admitted she had. engaged in sexual intercourse with him. This evidence was relevant to show a possible motive she might have to seek the death of her husband. Evidence which tends to show a motive to commit a crime is admissible even though it might be prejudicial. Ivey v. State, 210 Tenn. 422, 360 S.W.2d 1 (1962). The Appellant further claims that it was error to show this evidence prior to Wanda .Faye Harrison testifying because it constituted an attack upon her character in the absence of her character being put in issue by her. The fallacy in this assertion is that the evidence was relevant and substantive evidence introduced to show the complicity of Wanda Faye Harrison in this crime rather than collateral evidence to show her bad character.

The Appellant says the trial judge’s conduct in ruling on objections prohibited him from obtaining a fair and impartial trial. There were some exchanges between the trial judge and counsel for the Appellant which appear to have been rather sharp. However, we are of the opinion that these did not affect the verdict of the jury or interfere with the Appellant’s right to a fair trial. The most significant of these instances occurred when the cross-examination of a State witness became confused. The question being asked could have covered conversations which the witness had on different occasions with police officers. During discussion of this among the Assistant District Attorney General, counsel for the Appellant and the court, the trial judge remarked “We are floundering around,” and directed Appellant’s counsel to be more specific. The trial judge then said “That’s just fishing.” Following another statement by the trial judge about the ability to recall conversations, the Appellant’s attorney asked if the court was commenting on the evidence.. The trial judge replied no and directed counsel to be more specific. Simultaneously with this, Appellant’s counsel stated “Well, it sounds awfully like it.” Obviously counsel was referring to his own suggestion that the trial judge was commenting on the evidence. The trial judge then had the jury taken from the courtroom and the discussion continued. After some interchange between Appellant’s counsel and the trial judge, the jury was returned and the Appellant’s attorney conducted the cross-examination of the witness without incident.

On another occasion, the trial judge overruled an objection made by the attorney. Because of the objection, the witness did not hear the question which had been asked. When the Assistant District Attorney General substantially restated the question, Appellant’s counsel again objected and was reminded by the trial judge that the objection had already been overruled and directed that counsel be seated.

All of the other complaints made by the Appellant either occurred outside of the jury or were only rulings by the trial judge without comment. These were in no way offensive.

It would have been better had some exchanges between the trial judge and Appellant’s counsel been avoided.

“A trial judge must be patient, yet firm, and not allow personal irritation to ruffle his judicial demeanor while trying a case.” Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7, 10 (1948). On the other hand, attorneys owe a corresponding duty to refrain from conduct which might create irritation in the trial of a case. At any rate, we do not find that these matters denied the Appellant a fair or impartial trial or affected the verdict of the jury. Bivens v. State, 4 Tenn.Cr.App. 580, 474 S.W.2d 431 (1971).

In conducting the poll of the jury, of which the Appellant also complains, the trial judge asked each juror to state what their verdict was. There were a variety of forms of expression, but each juror made clear that he had found the Appellant guilty and fixed the punishment at not less than four (4) years nor more than ten (10) years. The trial judge in many instances asked if the juror responding had found the Appellant guilty of conspiracy to commit murder. In each instance the question was answered affirmatively. This record shows no doubt but that each juror found the Appellant guilty of conspiracy to commit murder with a punishment of not less than four (4) years nor more than ten (10) years.

The object of polling the jury is to determine the certainty of each individual juror’s verdict. Whitwell v. State, 520 S.W.2d 338 (Tenn.1975). We think the trial judge should have, in polling the jury, announced the verdict as reported and then asked each individual juror if this was the juror’s verdict. The juror would then be able to respond yes or no. This would avoid confusion created by the individual jurors stating their verdict. See 4 Wharton’s Criminal Procedure § 586, at 148-154 (Torcia 12th Ed.1976).

Although the trial judge did not follow this procedure, this record clearly reflects that each juror had reached the verdict reported by the foreman.

The Appellant, also, cannot prevail on the error claiming that portions of the bench conferences were not included in the Bill of Exceptions.

If a party is of the opinion that a Bill of Exceptions as tendered is incorrect or incomplete, he may file a written objection to the Bill of Exceptions within ten (10) days after it has been filed. T.C.A. § 27-110. Beyond this, in order to prevail on this claim, the- Appellant must show how he is prejudiced by the absence of the portions of the Bill of Exceptions. Phipps v. State, 4 Tenn.Cr.App. 511, 474 S.W.2d 154 (1971).

The Appellant did not file any objection in the trial court as provided by T.C.A. § 27-110. Neither has he shown any prejudice because of the alleged absence of portions of the Bill of Exceptions.

GERALD L. EWELL and SAM LEWIS, Special Judges, concur.

      . There is a dispute in the evidence concerning the distance involved. The police testimony showed the distance to be from one-fourth to one-half mile from the Harrison home. The Appellant’s evidence showed it to be from one (1) to four (4) miles away.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    Gary ALMONRODE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 7, 1978.
    Certiorari Denied by Supreme Court June 19, 1978.

      Landon Colvard, Jr., Crossville, for appellant.
    Brooks McLemore, Jr., Attorney General, Robert L. Delaney, Asst. Atty. Gen., Nashville, Bobby H. Capers, Asst. Dist. Atty., Mount Juliet, John C. Knowles, Asst. Dist. Atty., Sparta, R. Laken Mitchell, Asst. Dist. Atty., Cookeville, for appellee.
   TATUM, Judge.

OPINION

The appellant, Gary Almonrode, was convicted of armed robbery, and sentenced to not less than ten years nor more than ten years in the State Penitentiary. On his appeal, he complains of the sufficiency of the evidence, the admission of evidence seized after a search, argument of the District Attorney General, and the Trial Judge’s instructions to the jury. The assignments are without merit.

Assignments One and Two challenge the sufficiency of the evidence, so we will summarize the accredited evidence. Rocky German, an employee at a Seven-Eleven Store, testified that around 10:30 or 10:45 P.M. on 1 May 1976, he was robbed by an individual wearing a ski mask and brandishing a pistol that was “silver in color with a black colored handle.” There was a “dark spot” on one side of the pistol “up around the trigger.” German was robbed of approximately $80 to $85. The appellant was a customer of the store and German knew him. German was of the opinion that appellant was the robber and so informed police immediately after the robbery. His opinion was based on the robber’s manner of walking, his height, build, and “mainly from his voice.” He saw no automobile on the premises.

On that same night, Billy Hyder, a friend of the appellant, went to the appellant’s home in his automobile, arriving there at approximately' 10:30 P.M. The appellant came home around thirty to forty-five minutes later, “breathing harder, than normal,” when he arrived. The appellant went directly to a bedroom for a short while. When he reentered the room where Hyder was waiting, he had a pistol and holster. The appellant told Hyder the pistol and holster belonged to his sister and that it was important for the pistol to be returned that night. At appellant’s request, Hyder drove the appellant to the home of his sister to deliver the pistol and holster. Hyder and the appellant then drove to the Seven-Eleven Store while investigating officers were there, and the officers arrested the appellant. Hyder told the policemen about the trip to appellant’s sister’s home to deliver the pistol. The policemen promptly procured the pistol from the appellant’s sister, and it was admitted into evidence at the trial of this case. The victim, Rocky German, positively identified the pistol, by the distinguishing mark on it, as being the same one used in the robbery.

When the appellant was arrested, he had approximately $70 to $80. After his arrest, he told the police officers he had been drinking beer that evening at Billy Hyder’s home.

The appellant testified he went for a walk that night and was sitting alone in a park at the time of the robbery. He said he saw Hyder’s car parked at his residence and ran home because Hyder was there, causing him to be short of breath. He stated he had cleaned his sister’s pistol and was anxious to return it to her that night because she wanted to take it with her on an outing the next day. The appellant had sold the pistol to his sister about two weeks previous to the robbery. He testified he and Hyder left his home for his sister’s home at about 11:15 P.M. They remained at his sister’s home five or ten minutes, then drove by the Seven-Eleven Store where the appellant was arrested. His mother and a neighbor testified that he and Hyder arrived at the home of appellant’s sister at 11:30 P.M.

We first address ourselves to the assignments attacking the sufficiency of the evidence. We find abundant evidence to support the verdict and it does not preponderate against the verdict. We must therefore overrule Assignments One and Two. State v. Grace, 493 S.W.2d 474 (Tenn.1973); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

In Assignment Three, the appellant complains of the District Attorney General using the expression, “the oldest trick in the world,” in his final argument. The District Attorney General had reference to the defense counsel using a gun, similar to the one obtained from the appellant’s sister, in cross-examining the victim, German. First, we cannot consider this assignment of error because no objection was made to the use of this language at trial. If the argument was erroneous, the error was waived. Rye v. State, 532 S.W.2d 941 (Tenn.Crim.App.1975); Canady v. State, 3 Tenn.Crim.App. 337, 461 S.W.2d 53 (1970); Wallis v. State, 1 Tenn.Crim.App. 756, 450 S.W.2d 43 (1969). Further, the Trial Judge has wide discretion in controlling the conduct of counsel with respect to argument. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969); White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962). We find no abuse of discretion. Assignment Three is overruled.

In Assignment Four, the appellant complains that the pistol allegedly used in the robbery was the fruit of an unlawful search of the home of his sister. The appellant’s sister filed a motion to suppress this evidence. At a suppression hearing, the police officers testified that the appellant’s sister voluntarily delivered the pistol to them. She testified to the contrary. The Trial Judge correctly held that the appellant had no standing to object to the evidence. The appellant had no interest in the premises searched or in the pistol seized and could make no valid objection to the evidence. See, Miller v. State, 520 S.W.2d 729 (Tenn.1975), and cases there cited.

The appellant’s sister had no standing to object to the admission of evidence in the appellant’s trial. Had the officers not procured the pistol or if it had been returned to appellant’s sister, the State could have required her by subpoena to come with the pistol to court. There is no merit in Assignment Four.

In Assignments of Error Five and Six, the appellant complains of the failure of the Trial Judge to instruct the jury on the issue of alibi. It is reversible error for the Trial Judge to fail to instruct the jury on the issue of alibi when the proof fairly raises this defense. This rule is applicable when, as here, no special request on this proposition is submitted. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963). It is also established that the failure to charge on this issue does not require a reversal when the defense has not been fairly raised by the evidence. Manning v. State, 500 S.W.2d 913 (Tenn.1973).

The victim testified that the robbery took place at about 10:30 or 10:45 P.M. He testified that the robbery lasted two to three minutes and that within two to three minutes after the robbery, he called the City Police Department. Policeman George Wyatt recalled that he was notified of the robbery around 10:30 or 11:00 o’clock P.M., but his arrest report indicated he received information of the robbery at 11:25 P.M., when the appellant was with Hyder. There is no showing that the victim telephoned this officer directly and not through a dispatcher, but we glean a positive indication from the record that this officer was notified of the robbery by means of a police broadcast. The record does not reflect how much time elapsed between the victim’s telephone call to the police station and Wyatt’s notification. Other city policemen and the sheriff also responded to this robbery alarm and the record does not show how many officers, if any, were at the scene of the robbery when Officer Wyatt arrived, how long they had been there, or the time of their notification. The appellant himself testified that at the time of the robbery, he was alone in the park.

The arrest report does not “fairly raise ” the alibi issue to the point requiring a reversal for failure of the court to give an alibi instruction. While the alibi charge should have been given, we are prohibited by T.C.A. § 27-116 from reversing this case on that ground. We are convinced of the appellant’s guilt beyond a reasonable doubt and we are also convinced beyond a reasonable doubt that the omission of the Trial Judge to instruct on the defense of alibi did not affect the result of the trial. We must therefore overrule this assignment. Manning v. State, supra.

The judgment of the Criminal Court is affirmed.

O’BRIEN and DAUGHTREY, JJ„ concur.


author: DOUGLAS, Judge.

text:
    Jose Jesus GUZMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 53169.
    Court of Criminal Appeals of Texas. Panel No. 2.
    June 21, 1978.

      Walter G. Weaver, Jr., Donna, for appellant.
    Oscar B. Mclnnis, Dist. Atty., Edinburg, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Guzman appeals from a conviction for the offense of burglary of a habitation. Punishment, enhanced by two prior convictions, was assessed by the court at life.

Appellant presents eleven grounds of error. The sufficiency of the evidence is questioned.

The home of Carmen Castro in Mission was burglarized. She testified that at approximately 8:45 of the night of the offense she was at her mother’s just across the alley from her own home. She had turned off the lights and locked the doors of her own home. When she saw the lights on in her home, she went to investigate. When she got near the back door of her house, she saw a short stocky man in a T-shirt come out of the house with her sewing machine, a radio and other items. This man was later identified to be Antonio Garcia.

Another man was in the garage or carport. He was taller and thinner and had on a blue shirt. She came within three and one-half to four feet of him. She identified appellant at the trial as being this man. When the pair saw Mrs. Castro, Garcia dropped the sewing machine, radio and other items.' They both ran in an effort to get into a car that was parked partially on a vacant lot and Mrs. Castro’s lot. Apparently they decided to leave the car because Mrs. Castro was so close in her pursuit. After the chase started they went in different directions. She related she had to pass in front of appellant before he ran. On cross-examination she was asked if she had any reason to think that they were together, and she answered, “Well, they have to be together, because they both ran.” She testified that during the chase she fell to the “floor” and then corrected herself and said that she fell to the ground. When she returned to the house, she found that the screen on the back door had been cut.

The officers looked into the car and found a photograph which Mrs. Castro recognized to be that of Garcia, the one she saw coming out of her house. The car was registered in his name.

About an hour later as Guzman and Garcia approached the car they were arrested. A kitchen knife was taken from appellant at the car. The two fit the descriptions given by Mrs. Castro to the police. She identified the two at the police station.

We hold that the evidence is sufficient to support the conviction.

First, he contends that the court erred in permitting Officer Saldana to testify that Mrs. Castro identified appellant at the police station. This testimony was brought out on cross-examination. There was no objection. No error is shown. See Montemayor v. State, 456 S.W.2d 126 (Tex.Cr.App.1970).

The contention that the court should not have admitted the knife into evidence because the chain of custody was not shown is without merit. Officer Saldana testified that the knife was taken from appellant. It was tagged and placed in the evidence room at the police station. There was sufficient evidence to show that the knife taken from appellant was the one introduced into evidence.'

In Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974), the Court wrote:

“Ordinarily, when an object is easily identifiable as being a particular item * * * chain of custody need not be shown if there is direct evidence at trial the [item] sought to be introduced into evidence is the same [item] taken from the accused . . . .”

Appellant complains of the court’s refusal to charge on reasonable doubt concerning his identification by the complaining witness. The court instructed the jury that it must believe beyond a reasonable doubt that appellant committed the offense before finding him guilty. Viewing the charge as a whole, it properly instructed the jury concerning reasonable doubt. See Perryman v. State, 507 S.W.2d 541 (Tex.Cr.App.1974), and Lopez v. State, 468 S.W.2d 365 (Tex.Cr.App.1971).

Appellant contends that the court erred in refusing to grant his requested charge: “Defendant requests the charge as to principals on circumstantial evidence.”

The State contends that since there was no objection to the charge nothing is presented for review. When a request for an instruction is made, no objection to the charge is necessary. Article 36.15, V.A.C.C.P. A charge on circumstantial evidence covers the entire case, not just an isolated part or one issue.

The court properly instructed the jury on the law of parties and that “mere presence alone will not make a person a party to an offense.” The request was for the court to single out a part of the evidence and instruct thereon. Assuming that the court should have construed the request as one for a charge for circumstantial evidence on the whole case, the question will be discussed.

The evidence shows that Mrs. Castro saw Garcia coming out of her home with a sewing machine, a radio and other items that belonged to her. Appellant was in the carport. A cut on the back screen, where Garcia came out, was found. When appellant and Garcia were arrested an hour later near Garcia’s parked car at Mrs. Castro’s home, he had a kitchen knife in his pocket. Garcia and appellant ran from the house together and returned together a short time later. The evidence was sufficient for the jury to conclude that the two were acting together as parties formerly called principals.

In Ransonnette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975), this Court held that where the evidence showed that two were acting together and where the court charged on the law of parties (formerly called principals) no reversible error was shown. We hold that no error was shown.

Texas is in the minority requiring a charge on circumstantial evidence. In most jurisdictions no charge on circumstantial evidence is required when the jury is instructed that before finding a defendant guilty it must find that he committed the offense beyond a reasonable doubt. In most jurisdictions the giving of a charge on circumstantial evidence is discretionary with the trial judge. A jury that sits through trial knows if the evidence is based upon circumstances or eyewitness testimony or a combination of both.

Where a case rests upon circumstantial evidence, a charge thereon should be given has been the rule in Texas for a long time. Following that rule, the contention is still overruled. See Gaffney, The Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine, Texas Law Review, Volume 55, No. 7, page 1255 (1977), for a well written article discussing the majority and the Texas rule.

The most serious question in the case is the contention that the in-court identification of appellant should not have been allowed because of a showup of the two men charged in the burglary. He first asserts that the pretrial identification procedure violated the Sixth Amendment to the Constitution of the United States because Mrs. Castro viewed appellant and Garcia in absence of counsel. The identification at the police station was prior to indictment or charges being filed.

The presence of counsel at a pretrial identification procedure is not required until “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Banks v. State, 530 S.W.2d 940 (Tex.Cr.App.1976).

The next question is whether the confrontation at the police station was so unnecessarily suggestive and conducive to mistaken identity as to deny appellant due process of law under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968).

Mrs. Castro was taken to the police station after the men were arrested and she saw them together. She identified them as being the ones who were at her house. She identified appellant at the trial as being in the carport while Garcia was coming out of her house. She related that there was “one of those big overhead city lights” near her home and the moon was shining and it was very clear. She was asked when she went to the police station if she did not have the idea that they had the two men who were involved in the burglary and she answered, “No. I couldn’t say that until I saw them.” She was within two and a half to four feet from appellant in the carport and facing him. She testified, “Well, I saw all of his front” and “I saw all of him.” She took a good look at him while he was there before she started chasing the pair.

On cross-examination, she was asked, “Now, you never did get a real good look at his face in the light? You just saw it in the dark of the carport?” She answered, “No, I didn’t see exactly his face but I could see his build.” She also stated that “. he was giving his front to me when I approached there.” When she saw him at the police station, she was real positive that he was one of the men involved. When asked about his complexion she stated that he was not too dark. She was asked: “You didn’t think he was a Latin American?” She answered, “I know it wasn’t a Latin American. I know it was a Mexican. I could tell that.”

The officers should not have shown Mrs. Castro the two men at the police station. A lineup should have been held. The trial judge found that no due process had been violated. The two men tried to get in Garcia’s car when they left the house. Approximately an hour later, they returned to get the car which was parked in part on Mrs. Castro’s property. Appellant had a kitchen knife on his person. Entry was made into the Castro home by the cutting of the screen door with a knife. The trial judge saw the witness and noted her demeanor and her communication problems. We hold that from this record no reversible error has been shown.

Complaint is made that the court permitted the prosecutor to ask leading questions. Some eight instances are relied upon. We have reviewed this contention and find no objection that the questions were leading was made in most instances. Where such objections were made, there were no rulings to present for review.

The complaint that Officer Saldana testified that appellant made statements while he was in custody without a warning under Article 38.22, V.A.C.C.P., is without merit because appellant brought out this testimony for the first time on cross-examination. See Shumake v. State, 502 S.W.2d 758 (Tex.Cr.App.1973).

The photographs of Garcia’s automobile parked at Mrs. Castro’s house and the sewing machine, radio and other items taken from her house were admissible. Contrary to appellant’s contention, a proper predicate was laid for their introduction. Officer Saldana testified that he had personal knowledge of the scene and the photographs were true and accurate representations of that scene. Gonzales v. State, 532 S.W.2d 343 (Tex.Cr.App.1976).

The contention that the State did not prove that the first prior conviction alleged in the indictment was final before the commission of the offense alleged in the second prior conviction for enhancement is correct. The cause is remanded for the proper assessment of punishment. See Scott v. State, 553 S.W.2d 361 (Tex.Cr.App.1977).


author: ONION, Presiding Judge.

text:
    Truman RIDER, Appellant, v. The STATE of Texas, Appellee.
    No. 54823.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 7, 1978.

      Peter A. Lesser and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Brady Sparks, Rider Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for burglary of a building, where the punishment was assessed by the court at thirteen (13) years’ confinement in the Texas Department of Corrections.

The record reflects that around 6:30 p. m. on November 13, 1975,- the manager of a White’s Auto Store in Dallas went to the service area to be sure the building was secured before closing up. An employee in the service area had earlier gone into the bathroom and the battery room of the service area, and had turned off the lights. The manager stepped into the service area, turned the main lights back on and surveyed the general area of the garage. He then closed the door between the service area and the customer area, set the silent alarm, and went home.

The burglar alarm sounded at about 11:30 p. m. and the manager immediately returned to the store where he found the police. He opened the front door of the store for them and led them to the door separating the service area and the customer area. The door had been pried up from the bottom about six inches, but remained' secure. The manager unlocked this door and went into the service area with the police. One of the windows in one of the bay doors had been partially removed. Appellant was found seated on the floor in the battery room with a flashlight in his possession. Early the following morning a pistol was found underneath a battery in the battery room by an employee who testified he swept the area about every third day and the pistol was not there previously.

Appellant testified that on November 13, 1975 he was depressed about his car being repossessed, that he drank a lot that day, and that he must have wandered into the building in a drunken stupor, fallen asleep, and been locked in the building when it was closed.

Appellant has assigned nine grounds of error; however, in view of our disposition of the case, only one of them will be discussed.

At the outset we shall consider appellant’s contention that the court erred in overruling his timely objection to the court’s charge because it failed to properly apply the law to the facts. Appellant argues the charge initially explained the entry portion of the burglary offense as alleged (remaining concealed), but when the court attempted to define the intent with which the offense was allegedly committed, it failed to properly enumerate all the elements of the intended theft. He points out the court failed to include in its instructions the requirement that the jury must find the appellant intended to exercise control over the property without the effective consent of the owner.

Omitting the formal parts, the second count of the indictment, which was submitted to the jury, alleges that the appellant “on or about the 13th day of November in the year of our Lord One Thousand Nine Hundred , and 75, in the County of Dallas and the State of Texas, did unlawfully, intentionally and knowingly remain concealed in a building, without the effective consent of Gerald Miller, the owner thereof, and with intent to commit theft . . ..”

As set forth in V.T.C.A., Penal Code, Sec. 30.02, the essential elements of burglary applicable to this case are:

(1) a person
(2) without the effective consent of the owner
(3) remained concealed in a building
(4) with intent to commit theft.

In Gonzalez v. State, 517 S.W.2d 785 (Tex.Cr.App.1975), this court stated:

“The actual commission of the offense of theft is not a prerequisite to the commission of burglary. The unlawful entry with the intent to commit theft (or a felony) is the required element which must be alleged and proved. Under the definitions of burglary and theft contained in the V.T.C.A., Penal Code effective January 1, 1974, supra, although the proof will involve the necessity of establishing the intent to commit the offense of theft (Sections 31.02 and 31.03, V.T. C.A., Penal Code), the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.”

In Faulks v. State, 528 S.W.2d 607 (Tex. Cr.App.1975), we held that an indictment for burglary which also alleged the constituent elements of theft was proper, although it was noted that the better practice was to follow the rule laid down in Gonzalez v. State, supra.

It would appear that the indictment in the instant case followed the rule in Gonzalez.

V.T.C.A., Penal Code, Sec. 31.03(a) and (b), as originally enacted in the present 1974 Code provided:

“(a) A person commits an offense if, with intent to deprive the owner of property:
“(1) he obtains the property unlawfully; or
“(2) he exercises control over the property, other than real property, unlawfully.
“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises ■ control over the property without the owner’s effective consent; or
“(2) the property is stolen and the ' actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

The term “obtain” was defined in Sec. 31.01(5), and that term and the term “exercising control” are discussed in the Practice Commentary to said Sec. 31.03.

Sec. 31.03(a) and (b), as originally enacted, has been interpreted to mean that the offense of theft was comprised of four different sets of possible elements, as follows:

“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) without the owner’s effective consent
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) which is stolen property
“(5) from another
“(6) knowing it was stolen
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property other than real property
“(4) without the owner’s effective consent
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property other than real property
“(4) which is stolen property
“(5) obtained by another
“(6) knowing it was stolen.”

See Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976).

After the proof was in, the court in its charge defined in the abstract burglary by remaining concealed therein and defined “theft” as “the unlawful exercise of control, over the property of another, without the effective consent of such other person, and with the intent to deprive such other person of said property.”

It is obvious that the court chose the third mode of theft of Sec. 30.03(a) and (b) when defining “theft” in the abstract for the jury because the evidence supported the intent to commit this mode of theft.

In the principal portion of the charge the court instructed the jury as follows:

“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant, Truman Rider, on or about the 13th day of November, 1975, in the County of Dallas, and the State of Texas, as alleged in the indictment, did remain concealed in a building not then open to the public, occupied, controlled, and in the possession of Gerald Miller, hereinafter called the owner, without the effective consent of said owner, with intent then and there to take and exercise control over the property therein being and owned and belonging to the said owner, and with intent to deprive the owner of said property, then you will find the defendant guilty, as charged in the indictment.”

Appellant timely objected to the charge on the ground that the court failed to properly enumerate the elements of the intended theft by omitting therefrom the essential element that the appellant intended to exercise control over the property without the effective consent of the owner. Appellant’s objection was overruled, although the objection clearly pointed out what was missing from the charge and should have been there.

A trial court is required to fully instruct the jury on the law applicable to the case and to apply that law to the facts presented. Article 36.14, V.A.C.C.P.; Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976); Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). It is a necessity that the court charge on all the essential elements of an offense. Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.1978), and cases cited therein.

The better practice in instructing the jury on the offense of burglary with intent to commit theft is for the court to define the term “theft” in its charge and in applying the law to the facts instruct the jury they may find the defendant guilty if they find beyond a reasonable doubt that at the time of the offense he had the intent to commit the offense of theft as defined therein. This approach is uniformly suggested in Texas Criminal Pattern Jury Charges, CPJC 30.02, pp. 228-296; 2 Branch’s Texas Annotated Penal Statutes, 3rd ed., Sec. 30.02, p. 339 (Burglary and Criminal Trespass); Morrison and Blackwell, 8 Tex.Crim.Forms, 8th ed., Sec. 100.2, p. 379; and McClung, Jury Charges for Texas Criminal Practice, Burglary, p. 22.

Here the jury was not instructed that they must find beyond a reasonable doubt that the appellant had the intent to commit theft, but was required to find if the appellant had the “intent then and there to take and exercise control over the property therein . . ” etc., without requiring that intent to include “without the owner’s consent.” This defect in the court’s charge was called to the court’s attention by written objection, but it was overruled. The court erred in overruling such objection.

What everyone has overlooked, however, even as late as the filing of the appellate briefs, is that the alleged offense occurred on November 13, 1975, after the effective date of the 1975 amendment to V.T.C.A., Sec. 31.03(a) and (b), re-defining the offense of theft (Acts 1975, 64th Leg., p. 914, ch. 342, Sec. 10, effective September 1, 1975). Said Sec. 31.03(a) and (b), as amended in 1975, reads:

“(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
“(b) Appropriation of property is unlawful if:
“(1) it is without the owner’s effective consent; or
“(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”

At the same time Sec. 31.01, Subd. 5, was amended to define “appropriate” instead of the term “obtain” as follows:

“(5) ‘Appropriate’ means:
“(A) to bring about a transfer or purported transfer of title to or other non-possessory interest in property, whether to the actor or another; or
“(B) to acquire or otherwise exercise control over property other than real property.” (Acts 1975, 64th Leg., p. 914, ch. 342, Sec. 9, effective September 1, 1975.)

It is clear that the Legislature intended to re-define theft as the unlawful appropriation of property with intent to deprive the owner of property rather than the former prohibition against the obtaining of property unlawfully or the exercising of control, other than real property, unlawfully. And in Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978), it was observed that there are now two different sets of possible elements under Sec. 31.03, supra, as recently amended rather than the four different sets of possible elements under the former version of the statute. See Reynolds v. State, supra.

It is observed that the amendment to 5(A) of Sec. 31.01 defines “appropriate” in the same words as the term “obtain” was defined in the earlier version of the statute, and 5(B) was added to pertain to acquiring or otherwise exercising control over property other than real property. Thus, one net effect of the 1975 amendments to Secs. 31.01(5) and 31.03(a) and (b) was merely to substitute the term “appropriate” for the terms “obtain” and “exercising control over.” While the trial court in the instant case defined “theft” abstractly under the third mode of the former version of the statute rather than under the 1975 amendments as it should have done, there is no error because the meaning is essentially the same and no objection was addressed thereto. Nevertheless, we are still confronted with' the contention that in applying the law to the facts the court left out “without the owner’s effective consent” in setting forth the requisite intent necessary to be found to show the offense charged. While the language was that of the former version of the statute, both that version and the 1975 amendment require as an element of theft that it be “without the owner’s effective consent.” Thus, the error of the court in failing to respond to appellant's objection remains.

Is such error harmful or can it be declared harmless? See Article 36.19, V.A.C. C.P. In Bradley v. State, supra, it was pointed out that it has always been necessary to charge on' all of the essential elements of an offense, and that the charge in Bradley was fundamentally defective in that it allowed the jury to convict without finding all of the statutory elements of the offense. See also Long v. State, 548 S.W.2d 897 (Tex.Cr.App.1977). One of the statutory elements of burglary as charged is the intent to commit theft. In submitting that element to the jury the court, over objection, did not require that all component parts of that intent be found. In light of the objection to the charge, and in light of appellant’s defense that he was locked in the building by mistake and he had no intent to steal, we conclude that the error calls for reversal.

We again emphasize and recommend that the better practice in charging the jury on the offense of burglary with intent to commit theft is to define the term “theft” abstractly in the charge, and then when applying the law to the facts to instruct they may find the defendant guilty of burglary if they find beyond a reasonable doubt that at the time of the offense he had the intent to commit the offense of “theft, as that term is herein defined.” To do so would avoid the problem encountered in this case.

The judgment is reversed and the cause remanded.

      . The trial in this cause commenced on May 26, 1976.

      . Said Sec. 31.03 was again amended in 1977, but Secs, (a) and (b) remain the same as the 1975 amendment (Acts 1977, 65th Leg., p. 937, ch. 349, Sec. 1, effective August 29, 1977).

      . The two different sets of possible elements under the present version of Sec. 31.03(a) and (b) of the Penal Code were set forth in Hughes as follows:
      “(1) a person
      “(2) with the intent to deprive the owner of property
      “(3) appropriates property
      “(4) without the owner’s effective consent;
      or
      “(1) a person
      “(2) with the intent to deprive the owner of
      property
      “(3) appropriates property
      “(4) which is stolen property
      “(5) knowing it was stolen
      “(6) by another.”


author: W. C. DAVIS, Judge.

text:
    Harvey Joseph DUFFY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 57603.
    Court of Criminal Appeals of Texas, En banc.
    June 7, 1978.

      Lonnie W. Duke and Antonio G. Cantu, San Antonio, court appointed, for appellant.
    Bill M. White, Dist. Atty., John W. Harris, Jr., Charles T. Conaway and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, for the State.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. On September 14, 1976, the jury answered affirmatively the three special issues submitted under Article 37.-071, Vernon’s Ann.C.C.P., and the punishment was accordingly assessed at death.

The sufficiency of the evidence to show that appellant committed murder in the course of robbery is not challenged. On January 14, 1976, the body of Louise Word, an eighty-year-old woman, was found in her house in a rural area of Bexar County. The evidence showed that she had been stabbed ten times with a knife. The front screen door of her house was bent and twisted, indicating a strugglé had taken place. Large bloodstains were found in the living room and trails of blood led to the bedroom where the body of the deceased was found. Drawers in the house appeared to have been opened and rifled.

On January 16, 1976, appellant was arrested in Fredericksburg, where he subsequently made a confession to the crime. The evidence reflects that appellant had been in possession of checks belonging to the deceased, and that for two and one-half days appellant had been forging and cashing the checks in three cities. Other evidence found at the scene of the crime connected appellant with the murder.

Appellant raises eight grounds of error in this appeal. In his first ground of error, raised for the first time on appeal, appellant alleges that the trial court failed to comply with V.T.C.A., Penal Code, Section 12.31(b) in that none of the prospective jurors were required to state under oath during voir dire that the mandatory penalty of life- imprisonment or death would not affect his or her delibérations on any issue of fact.

Article 35.02, Vernon’s Ann.C.C.P., provides that after the parties in the cause have announced ready for trial and the jurors are called,

“To those present the court shall cause to be administered this oath: ‘You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror, so help you God.’ ”

Thus, in the course of jury selection proceedings, the jury is to be sworn before the voir dire examination begins; therefore, any statements or answers given by prospective jurors during voir dire are given under oath.

Article 12.31(b) contemplates that when a prospective juror states whether or not his deliberations will be affected by the mandatory punishment of life imprisonment or death, his answer is to be given under oath in the same manner as all answers during the voir dire examination. Thus, the statute contemplates that a jur- or’s qualification under this statutory provision be tested during the course of the voir dire examination, along with his qualifications as to all legal matters.

The record reflects that each prospective juror was examined by the trial court as to his or her qualification under Section 12.-31(b). However, appellant contends that none of the jurors were sworn before they were qualified under Section 12.31(b) and that, therefore, their answers to the statutory question were not made under oath as the statute requires. Appellant contends that for this reason he was deprived of a panel of legally qualified jurors, which constituted a violation of due process and equal protection.

Article 44.24(a), Vernon’s Ann.C.C.P. provides that: •

“The Court of Criminal Appeals shall presume . . . that the jury was properly impaneled and sworn . . unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record.” (Emphasis added)

Appellant made no objection to the proceedings or the jurors at any time during the course of the trial. Neither does the record in this cause affirmatively reflect that the prospective jurors were not properly sworn before each was examined during the voir dire proceedings; the record is silent on this matter. Therefore, the statute mandates a presumption on appeal that the jury in the instant case was properly impaneled.

In Clay v. State, 505 S.W.2d 882 (Tex.Cr.App.1974), one ground of error before this Court was the failure of the trial court to administer the oath to the jury panel before voir dire examination, as required by Article 35.02, supra. Relying upon the language of Article 44.24, supra, we held that there was a presumption that the jury had been properly impaneled and sworn, since the defendant voiced no objection at trial and since the record did not affirmatively show that the oath was not given. Cf. McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975); Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Grant v. State, 507 S.W.2d 732 (Tex.Cr.App.1974).

Appellant seems to argue that this presumption of regularity is inapplicable in the instant case. He contends that since Article 12.31(b) states that a prospective juror “shall be disqualified” from serving unless qualified under the statute, jurors cannot render a verdict in a capital case unless there has been compliance with Sec. 12.-31(b). This position is erroneous. In Battie v. State, 551 S.W.2d 401 (Tex.Cr.App.1977), we reaffirmed our holding that See. 12.31(b) does not in itself constitute an oath to be administered in its own terms to each veni-reperson, but rather it merely provides one criteria by which each venireperson is to be qualified. Thus, we see no reason that the statutory presumption not apply in the instant case.

We hold that the statutory presumption on appeal that the jury was properly impaneled, and thus that they were under oath during the voir dire examination, applies in capital cases to jurors’ qualifications under Sec. 12.31(b). Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that he was “deprived of a fair and impartial jury trial because the verdict was the product of community pressure brought upon the jurors by the news media during the course of the trial.”

The record reflects that on September 13, 1976, after appellant had testified in his own behalf but before the defense rested, the jury was recessed for lunch. Evidence in the record reflects that as the jurors filed out of the courtroom a television cameraman from a local television station was directly outside the courtroom doors, filming the outside of the courtroom. Apparently, some of the jurors were filmed during this incident. The trial judge immediately had the cameraman brought before him out of the presence of the jury, took his camera and ordered the bailiff to take the cameraman into custody. When the trial reconvened, appellant moved for a mistrial, which was denied.

At a hearing on appellant’s motion for new trial, appellant’s trial attorney testified that the filming incident lasted fifteen to twenty seconds. The television cameraman testified that he was filming the outside door of the courtroom when the jurors walked out; that the camera was on ten to fifteen seconds; that the bailiff immediately told him to stop the filming and grabbed him and took him before the judge; and that he was grabbed in the presence of some jurors.

Juror Salazar did not recall the incident at all. He did remember seeing a television camera; however, he did not see the filming nor did he see camera lights. He did not discuss the matter with anyone, nor did he hear it mentioned during the jury deliberations. Juror Kingery saw the camera and the bright lights. She stated that while she was “pretty sure” that some jurors wondered what was happening, she did not remember any particular discussion. She thought that there was some mention of the incident by other jurors, but it was not discussed during deliberations. Juror Robb noticed the lights but did not recall ever discussing it then or during deliberations. Juror Cordes saw the camera and the cameraman being taken into custody and heard some jurors “wonder” if the cameraman was a reporter, but never heard it discussed again. Juror Bates stated that he saw the lights and heard others mention the lights, but that it was not discussed again. Juror Ward did not see any of the incident, but heard it mentioned by others. She did not recall any discussion of the incident during deliberations. Juror Langner recalled the incident because she saw the lights. She heard someone mention the cameraman but never discussed it with the others. She did hear about the cameraman’s arrest on the radio later that day, but she did not hear the incident discussed during deliberations. Juror Maxwell recalled the incident, although he did not see anything. He heard about the cameraman and the arrest, but heard no more discussion of the matter, at that time or during deliberations. Juror Ramirez saw the cameraman but never heard anything else about the incident then or during deliberations. Jur- or Schuchardt saw the lights, heard about the cameraman and later learned of the arrest, but did not recall further discussion of the matter. Juror Frerichs saw the confusion and lights outside of the courtroom, was told about the cameraman and assumed that she was being photographed. However, she never heard reference made to the incident after the recess.

Appellant contends that this one incident caused the jurors to be aware of community pressures, which deprived him of a fair and impartial jury trial. He relies upon Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), wherein convictions were reversed because of the extensive and pervasive intrusion by the news media into the trials.

In Estes v. Texas, supra, in addition to massive pre-trial publicity, pre-trial hearings were televised and recorded and the activities of the cameramen and photographers caused considerable disruptions. Trial witnesses and the original jury panel were “undoubtedly made aware of the peculiar public importance of the case by the press.and television coverage being provided, and by the fact that they themselves were televised live and their pictures rebroadcast on the evening show.” The Supreme Court held that the defendant had been deprived of due process, without the necessity of his showing actual harm and prejudice. The Court stated:

“The potential impact of television on the jurors is perhaps of the greatest significance. They are the nerve center of the fact-finding process . . From the moment the trial judge announces that a case will be televised it becomes a cause célebre . The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case . . The conscious or unconscious effect that this may have on the juror’s judgment cannot be evaluated, but experience indicates that it is not only possible but highly probable that it will have a direct bearing on his vote as to guilt or innocence. Where pretrial publicity of all kinds has created intense public feeling which is aggravated by the telecasting or picturing of the trial the televised jurors cannot help but feel the pressures of knowing that friends and neighbors have their eyes upon them. If the community be hostile to an accused, a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led ‘not to hold the balance nice, clear and true between the State and the accused.’ ” 381 U.S. at 545, 85 S.Ct. at 1634.

In Sheppard v. Maxwell, supra, the Supreme Court held that even in the absence of a showing of actual prejudice, the defendant was entitled to a new trial due to the “carnival atmosphere” of the trial, created by extensive publicity. Cameramen and photographers were constantly in and around the courtroom, photographing and filming the jury. There was also extensive daily news coverage of the trial, which saturated the community. The probability of prejudice to the defendant was so great that he was deprived of a fair trial consistent with due process.

Appellant contends that Estes and Sheppard, supra, require a reversal of any conviction where any of the jurors at trial were filmed and thereby made award of community interest in the outcome of the trial. We do not believe that this result is warranted by these decisions.

In both Estes and Sheppard, the filming and photographing of the jurors were factors which contributed to the atmospheres of prejudice which tainted the trials. In both cases, there were many more factors contributing to the climates created by the news media. The extensive pre-trial and trial publicity, coupled with the conduct of members of the news media and the sensationalism of the reporting, created presumptions of prejudice and harm to the defendants.

In the instant case, no such presumption of prejudice arises. The record reflects nothing more than an accidental filming of a few jurors for a 10 to 15 second period. Absent other facts, we hold that this one incident is not of sufficient magnitude to create a presumption of prejudice to appellant by virtue of community pressures brought upon the jurors. .

Since we hold that this incident alone is insufficient to raise a presumption of harm to appellant, we now turn to whether appellant was harmed in fact. The testimony in the hearing on the motion for new trial shows that the eleven jurors who testified were aware that the incident had occurred. However, their testimony clearly indicated that the incident was not discussed at length, and all testified that the incident was not discussed during deliberations. Appellant has made no showing of harm, and we do not infer harm from these facts .before us.

Obviously, the jury was aware that this was a capital case, and as such was newsworthy in the community. We cannot conclude from the record before us that this incident served to bring community pressure upon the jurors or was of such a nature as to likely affect their verdict. See generally, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977); Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975); Garcia v. State, 513 S.W.2d 82 (Tex.Cr.App.1974); Morris v. State, 488 S.W.2d 768 (Tex.Cr.App.1973); Johnson v. State, 467 S.W.2d 247 (Tex.Cr.App.1971). Therefore, we hold that the trial court did not err in overruling appellant’s motion for a mistrial. This second ground of error is overruled.

In his fourth ground of error, appellant contends that Art. 37.071, Vernon’s Ann.C. C.P., is “constitutionally infirm in that its language engages in a presumption in favor of the state and places a burden upon the accused to rebut the presumption.” Specifically, appellant asserts that the statute shifts the burden of proof to the defendant by requiring that in order to answer a special issue “No”, ten or more jurors must agree.

This contention was decided adversely to appellant in Brown v. State, 554 S.W.2d 677 (Tex.Cr.App.1977). Therein we stated:

“At the guilt stage of the trial, in order to he acquitted, the defendant must receive 12 favorable votes. In order to convict, the State must receive 12 favorable votes. At the punishment stage of the trial, the procedure is the same with the exception that if a defendant has ten votes he receives a favorable verdict instead of a hung jury.”

Further, Article 37.071(c) provides that the State must prove each special issue submitted beyond a reasonable doubt and in the instant case, the jury was so instructed. Therefore, the statute does not place the burden of proof upon the defendant to rebut any presumption in favor of the State. This ground of error is overruled.

In his fifth ground of error, appellant contends that “the trial court erred in receiving and making the jury’s verdict on punishment the basis for appellant’s judgment assessing the death penalty because the jury’s verdict was vague and inconclusive as to special issue No. Three.”

Article 37.071(b)(3), Vernon’s Ann.C.C.P., provides that:

“(b) On conclusion of the evidence [at the punishment phase], the court shall submit the following issues to the jury:
******
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

In its charge to the jury on punishment, the court submitted the above issue as follows:

“Do you find from the evidence beyond a reasonable doubt whether the conduct of the defendant, Harvey Joseph Duffy, Jr., in killing the deceased was unreasonable in response to the provocation, if any, by the deceased?”

The jury returned an affirmative finding to this issue, as well as to the other special issues.

Appellant contends that the wording of the special issue was unclear, vague and inconclusive, and that any affirmative answer to it is ambiguous. He argues that compliance with the statute requires that the issue be submitted as “Do you find from the evidence beyond a reasonable doubt that . . . .” rather than “Do you find from the evidence beyond a reasonable doubt whether . . . .”

The record reflects that appellant made no objection to the charge, even though the trial court specifically called this special issue to appellant’s attention. The acquiescence in and absence of an objection to the form of the charge waives all but fundamental error. Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974). See also Elkins v. State, 543 S.W.2d 648 (Tex.Cr.App. 1976); Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976); Singleton v. State, 543 S.W.2d 138 (Tex.Cr.App.1976); Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974). Therefore, nothing is presented for review.

Further, even if appellant had preserved this issue for review, there is no error in this portion of the charge. The charge submitted tracks the language of the statute, and therefore properly charges the jury on the statutory issue. Cf. Sternlight v. State, 540 S.W.2d 704 (Tex.Cr.App.1973); Bradford v. State, 477 S.W.2d 544 (Tex.Cr.App.1974); Frazier v. State, 170 Tex.Cr.R. 432, 342 S.W.2d 115 (1961); Barkley v. State, 152 Tex.Cr.R. 376, 214 S.W.2d 287 (1948). The use of the word “whether” rather than the word “that” does not make this special issue vague or ambiguous, nor does this language render the jury’s answer to the question inconclusive. This ground of error is overruled.

In his sixth ground of error, appellant contends that a sidebar remark by the prosecutor was prejudicial to appellant and that appellant was deprived thereby of a fair trial.

Upon • direct examination of a witness called by the State, the prosecutor tendered State’s Exhibits Nos. 22, 23 and 24. These exhibits were photostatic copies of three checks made to appellant, purportedly signed by the deceased, two dated the day of her death and one dated the day after her death. Appellant’s counsel stated:

“MR. CONANT: Your Honor, we will object for two reasons. One, I submit the original would be the best evidence and, two, I don’t — is there nothing on the back of the three hundred and twenty dollar check?
“MR. HARRIS (Prosecutor): No, on the copy.
“MR. CONANT: I realize there is nothing on the copy, was there anything on the original?
“MR. CONAWAY (Prosecutor): Ask your client.
“MR. CONANT: Your Honor, I ask that be stricken from the record.
“THE COURT: All right. I will warn you, don’t make any more side bar remarks. You address yourself to me if you want to make any comments. I will give you the opportunity to argue the case when we get down to it but I am not going to tolerate that stuff. Do we understand each other?
“MR. CONAWAY: Yes, sir.
“THE COURT: You address your remarks to me . . . ” (Emphasis added).

Contrary to the State’s brief, the remark did constitute a sidebar remark, which is not to be condoned. See Felder v. State, 564 S.W.2d 776 (Tex.Cr.App.1978); Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Williams v. State, 549 S.W.2d 183 (Tex.Cr.App.1977); Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977); Jones v. State, 504 S.W.2d 906 (Tex.Cr.App.1974); Barnes v. State, 502 S.W.2d 738 (Tex.Cr.App.1973). However, in his objection, counsel for appellant simply asked that the remark be stricken from the record. The trial court quickly admonished the prosecution for the remark and directed him to refrain from further sidebar remarks. Counsel for appellant did not request further relief such as an instruction to the jury to disregard. Therefore, no error is preserved and no harm is shown. Williams v. State, supra; Jones v. State, supra; Washington v. State, 484 S.W.2d 721 (Tex.Cr.App.1972). Appellant’s sixth ground of error is overruled.

In a multifarious ground of error, appellant next complains of the prosecutor’s jury argument at the punishment phase of the trial.

The record reflects that the prosecutor argued:

“Now, when I was assigned to my job as assistant chief of Capital Crimes Section, I first thought it was a great honor, of course, an opportunity to work with Mr. Charles Conaway, the opportunity to work on the important cases, the cases such as the one you have heard this week and last week. Of course, it comes with somewhat mixed emotions because in working with these type of cases we have become intimately familiar with the victim, the family of the victims such as Mrs. Riley. I don’t know if she is here today or not but she has been here the entire trial. To see the grief, to see the effect on the victims of the crime is sometimes hard to bear. But then on the other hand I get the chance to present to citizens of this community the evidence, to give it to representatives of the community and let them decide, let them do something with it. I have a chance to do something. Now you have a chance. You have the opportunity to do something about the situation that you have heard the last five days. You have gone one step toward doing something about a very brutal or very senseless, a very awful situation and I think now that you see — I have a six year old son. I have an eight year old son, too. But, primarily the six year old will watch a television program, watch a—
“MR. CONANT: Your Honor, if it please the court, I hate to object at this time but this is totally outside the record. We don’t have any idea about what his sons watch on T.V. or what he is about to say about the T.V. I would object to the argument.
“THE COURT: Overruled. Let’s proceed, counsel.
“MR. HARRIS: I was going to say that my son will watch a program of some kind showing an incident, a lot of violence. Not necessarily that, though, and he will turn to me and he will say, ‘Is that real or is that fiction?’ He doesn’t say fiction. ‘Is it real or is that just acting?’ What you have seen today, what you have seen the last several days is real . . . .”

Appellant first contends that the trial court erred in permitting the prosecutor to bolster his associate prosecutor before the jury. No objection was made to this statement; therefore, nothing is presented for review. Wilder v. State, 558 S.W.2d 883 (Tex.Cr.App.1975); Hunter v. State, 530 S.W.2d 573 (Tex.Cr.App.1975); Campbell v. State, 525 S.W.2d 4 (Tex.Cr.App.1975); Cox v. State, 523 S.W.2d 695 (Tex.Cr.App.1975).

Appellant next contends that it was error for the prosecutor to refer to the instant trial as an “important case”. Appellant did not object to this statement; therefore, nothing is presented for review. Wilder v. State, supra; Hunter v. State, supra; Campbell v. State, supra; Cox v. State, supra.

Appellant next complains of the statement concerning the prosecutor’s “personal intimate familiarity with the victim’s family.” Appellant did not object to this statement; therefore, nothing is presented for review. Wilder v. State, supra; Hunter v. State, supra; Campbell v. State, supra; Cox v. State, supra.

Appellant next contends that the trial court erred in overruling his objection to the prosecutor’s unsworn testimony concerning the effect of television on his son. Appellant’s contention is correct; the prosecutor did refer to matters not in evidence. However, in order for an improper jury argument to constitute reversible error, it must either be extreme or manifestly improper or inject new and harmful facts. Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977); Bailey v. State, 531 S.W.2d 628 (Tex.Cr.App.1976); Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975). We do not find that the instant reference to matters not in evidence meets this test. Therefore, this error does not warrant a reversal of this conviction, and appellant’s ground of error is overruled. Brown v. State, 535 S.W.2d 640 (Tex.Cr.App.1976); Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1976) (on motion for rehearing).

In his eighth ground of error, appellant contends that the trial court erred in overruling another objection to the prosecutor’s jury argument at the punishment phase of the trial.

The record reflects that the prosecutor stated to the jury:

“Now it is up to you. No one can adequately punish this individual for taking that woman’s life but you twelve people. No one can tell the community what will happen when you murder an eighty-year-old woman during the course of robbery except you twelve people.”

Appellant objected to this statement on the ground that “it would bring in whether or not the punishment that this jury might meet (sic) out would be a deterrent effect on others in the community.” He now contends that this argument injected improper references to community demands and expectations outside the record.

The trial court did not err in overruling appellant’s objection; the argument by the prosecutor was a proper plea for law enforcement. Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977); Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977); McCall v. State, 540 S.W.2d 717 (Tex.Cr.App.1976); Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974); Minafee v. State, 482 S.W.2d 273 (Tex.Cr.App.1972). Therefore, no error is shown and this ground of error is overruled.

In his third ground of error, appellant contends that the evidence is insufficient to support the jury’s affirmative answers to the issues submitted to them under Article 37.071, Vernon’s Ann.C.C.P. This ground of error is multifarious and not in compliance with Article 40.09(9), Vernon’s Ann.C.C.P. However, in the interest of justice, we will consider these grounds of error. Article 40.09(13), Vernon’s Ann.C.C.P.

Appellant contends that the evidence is insufficient to prove beyond a reasonable doubt that there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. We disagree.

The record reflects on the date of the offense appellant, then 24 years old, went to the deceased’s house in. rural Bexar County, where she lived alone. In his testimony, appellant stated that he wanted to borrow money from the deceased, although apparently he did not know her well. He stated that he needed money so he and his girlfriend could leave town. His financial situation was bad and he had previously quit his job. He stated that he could not live on his wages of $2.30 per hour, and that he had recently written a bad check. Because of his five prior convictions, he had served time in the penitentiary and was on parole at the time of the offense. He stated that he was “in trouble” with his parole officer. Appellant had learned that the deceased was an old woman who perhaps had a lot of money.

In his written confession, appellant stated that he first went up to the house and talked to the deceased about buying some turkeys. He then left her house, but returned 15 to 20 minutes later. When he then entered the house, he had the knife in his coat pocket. He stated that after he was in the house he took his knife out and stabbed the deceased in the chest. The deceased fell and began crawling and trying to run, while screaming for help. She crawled half way out of the front metal screen door, but appellant grabbed her and dragged her back in. She held onto the screen door which became twisted and bent. Inside the living room, appellant stabbed her more. He then dragged her by the back of her clothes into the bedroom and stole her checks and some coins. On his way out of the house, he dropped towels over the large puddles of blood on the living room floor.

The evidence reflects that the deceased was stabbed ten times by appellant. She was stabbed three times in the front of her chest, twice on her left side, four times in the back and once on her right side. The force of the blows fractured several of her ribs.

Appellant then drove away from the house, closing the front gate behind him. He then drove to Boerne where he forged and cashed one of the deceased’s checks. Upon returning to San Antonio that evening, he took his girlfriend to eat at an expensive restaurant and at some point made a downpayment on a car, all from the proceeds of the forged check. During the following two days, appellant forged and cashed or attempted to cash several more of the deceased’s checks, until he was apprehended.

Other evidence showed that appellant was twenty-five years old at the time of trial and had finished high school. Appellant had prior felony convictions for burglary of a habitation and forgery and three convictions for felony theft. The record reflects that all were committed within an eight day period in 1974 in three different counties. Appellant served the sentences concurrently, spent seventeen months in prison and was released on parole some six months prior to the commission of the offense. He stated that he was under the influence of drugs at the time of the offense, that he illegally possessed large amounts of the drug during the months before the offense and that he took the drugs often.

Appellant testified that when he told the deceased that he wanted to borrow money from her, she became enraged, struck him with a cane and started screaming at him. He stated that this was why he stabbed her. Although he admitted stabbing the deceased, appellant maintained that he only stabbed her three times and that he did not know how she received the other seven stab wounds.

At the punishment phase, after the State proved appellant’s prior convictions, his family physician testified that appellant had never exhibited violence that the doctor knew of. A priest of a church which appellant had attended testified on direct examination that he was surprised to learn of the charges against appellant, but that he thought that appellant was the type of individual who would continue on a course of violence. However, he stated that he personally had detected no indication of violent behavior in appellant and that he did not feel that he was competent to predict future behavior. Appellant’s parents also testified that to their knowledge appellant had not previously exhibited violent behavior.

Appellant testified that he was sorry that he killed the deceased, that he still did not believe that he did it, and that he would not do it again.

We conclude that the evidence is sufficient to support the jury’s finding that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society.

It is clear that in assessing punishment the jury may consider all of the evidence adduced at trial on guilt or innocence. Felder v. State, 564 S.W.2d 776 (1978); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976). Indeed, the circumstances of the offense and the facts surrounding it may furnish greater probative evidence than any other evidence regarding the second special issue. See Brock v. State, supra; Burns v. State, supra; Shippy v. State, supra.

In the instant case, appellant went to the deceased’s house thinking that she had money and intending to get money from her. The fact that he went armed is of probative value. See Felder v. State, supra. Cf. Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978).

The deceased was an eighty-year-old woman, five feet tall, unlikely to be a physical threat to appellant or to be physically capable of pursuing him. See Felder v. State, supra; see also Burns v. State, supra.

Appellant brutally and viciously stabbed her ten times in the chest, side and back, with sufficient force to break ribs. See Felder v. State, supra; Burns v. State, supra; Shippy v. State, supra; Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976).

When she ran from him after he first stabbed her, he followed her and dragged her screaming back inside the house as she held onto the door. He then continued stabbing her. Afterwards, he searched and found the checks and coins to steal. See Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).

After the murder, he went on a three day forgery spree, cashing check after cheek until he was apprehended.

There was no evidence that appellant was under the influence or domination of anyone else; we have previously stated that this is probative evidence on special issue number two. Hovila v. State, 562 S.W.2d 243 (Tex.Cr.App.1978); Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977); Smith v. State, supra; Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975). Although appellant testified that he was under the influence of drugs at the time of the offense, that his financial situation was bad and that he was in trouble with his parole officer, the jury could conclude that this was not sufficient mental or emotional pressure to mitigate his actions. We have previously stated that the presence or absence of such pressure is probative on special issue number two. Hovila v. State, supra; Robinson v. State, supra; Smith v. State, supra; Jurek v. State, supra.

The evidence also reflects that appellant had five prior felony convictions. Although none of his prior offenses involved violence against persons, they were nevertheless probative as to appellant’s propensity to commit criminal acts. See Felder v. State, supra; Smith v. State, supra. That the offenses were all committed within an eight-day period and that appellant had only served time in prison once was probative evidence, perhaps in mitigation of punishment. However, the jury could have concluded that appellant was inclined to “crime sprees”, especially in light of his conduct immediately after the murder. Further, at the time of the offense, the evidence indicated that appellant was lessening his attempts to rehabilitate himself and conform his conduct to the law while on parole. He had recently quit his job, written a bad check and was “in trouble” with his parole officer. Further, according to his own testimony, he had begun using drugs heavily. See generally, Brock v. State, supra; Smith v. State, supra.

Thus, on the record before this Court, it appears that appellant’s entire conduct was calculated and remorseless, and the jury was justified in finding that the aggravating factors outweighed the mitigating factors and that this appellant would constitute a continuing threat to society. See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See and compare Felder v. State, supra; Brock v. State, supra; Burns v. State, supra; Shippy v. State, supra; Granviel v. State, supra; Moore v. State, supra; Smith v. State, supra; see also Warren v. State, supra.

Appellant next contends that the evidence is insufficient to prove that his conduct which caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased would result, the first special issue submitted to the jury pursuant to Article 37.071(b)(1), Vernon’s Ann.C.C.P. This contention is without merit. There is sufficient evidence to show that when appellant entered the deceased’s house with a knife and began repeatedly stabbing her, he acted deliberately and with the reasonable expectation that he would cause her death. See Granviel v. State, supra.

Appellant also contends that the evidence is insufficient to justify an affirmative finding to special issue number three, submitted to the jury pursuant to Article 37.071(b)(3), Vernon’s Ann.C.C.P. This statute requires the jury to determine “whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” We hold that the evidence is sufficient to justify an affirmative finding on this issue. Even if the jury believed appellant’s testimony that the deceased “exploded” and began to strike him with a cane prior to the time he stabbed her, it could have easily concluded that his response in deliberately and repeatedly stabbing her ten times was unreasonable in response thereto, considering their relative sizes and probable strengths. See generally Brown v. State, 554 S.W.2d 677 (Tex.Cr.App.1977). Appellant’s third ground of error is overruled.

The judgment is affirmed.

ROBERTS, J., concurs in the result.

      . In his oral argument of this case before this Court, counsel for appellant asked that we consider as unassigned error ineffective assistance of counsel on appeal. Counsel stated, and the record reflects, that he and co-counsel were appointed to represent appellant after appellant’s trial counsel had filed his first motion for new trial. Because counsel on appeal were not familiar with the' trial record in the case, not having represented appellant therein, on November 12, 1976, the trial court entered an order extending counsel’s time for filing an amended motion for new trial until 30 days after the court reporter completed the statement of facts. Notice of completion of the record was sent to counsel on appeal on July 14, 1977. On July 28, 1977, counsel filed objections to the record, requesting that the trial court not approve the record until the agreed-upon 30 days had expired. The record does not reflect that a hearing was ever held on this objection. The record next reflects that the trial court entered an order approving the record on August 22, 1976, some nine days after counsel’s thirty-day extension had expired. In his argument before this Court, counsel represented that the trial judge had breached his agreement to extend the time for the filing of the amended motion for new trial, and argued that because of this, he was not able to effectively represent appellant in this appeal. The record, however, reflects that the trial judge honored his agreement as to the extension of time. Further, the record does not reflect that counsel ever filed or attempted to file the amended motion for new trial, which he maintained was critical in his effective representation of appellant on appeal. Thus, there is no error for this Court to consider.

      . V.T.C.A., Penal Code, Sec. 12.31(b) requires that:
      “Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

      . The twelfth juror was subpoenaed, but did not appear to testify.

      . Appellant stated that the drug was Dilaudid, a pain killer.

      . Although these non-assaultive prior convictions are probative evidence, they are not dis-positive of this issue. Upon other facts, this Court might be unable to hold that such convictions, by themselves, would constitute sufficient evidence for this special issue. See Warren v. State, supra.


author: TOM G. DAVIS, Judge.

text:
    Alfred Ray JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 57668.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 14, 1978.

      W. J. Goodwin, Beaumont, court appointed, for appellant.
    Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On June 20, 1977, appellant entered a plea of guilty before the court to the offense of theft over $200. Punishment was assessed at 7 years and a fine of $750, but the imposition of the 7 years was suspended and the appellant was placed on probation.

Among the terms and conditions of appellant’s probation was the following: “a. Commit no offense against the laws of Texas, any other State, the United States or any other governmental entity.” On August 1, 1977, a motion to revoke appellant’s probation was filed. The motion to revoke alleged that appellant had violated condition “a” of his probation:

“By committing the offense of possession of Marijuana in that on or about the 21st day of July, 1977, in Jefferson County, Texas, Alfred Ray Jones did then and there knowingly and intentionally possess a usable quantity of marijuana of two ounces or less, against the peace and dignity of the State.”

On August 31,1977, the trial court held a hearing on the motion to revoke appellant’s probation. After the hearing, the court entered an order revoking appellant’s probation.

The appellant complains of the trial court’s action in overruling his motion to suppress the marihuana which forms the basis of this revocation. Specifically, appellant complains that the marihuana was the fruit of an illegal investigation stop by the police.

The record reflects that on July 21, 1977, at about 12:10 in the afternoon, Beaumont Police Officers Robert Eastepp and J. Evans were on routine patrol when they first saw the appellant. Officer Eastepp testified as follows about how appellant was first observed:

“We were on patrol in the Pear Orchard area of town, a black neighborhood. As we proceeded down Hebert Street we observed two black males and a white male walking fast on Hebert Street. As we were approaching them the white male turned around and looked at us and then he quickly stuffed an object in his right back pocket. At this time we pulled up by them and I got out of the car to talk to him.”

Eastepp identified the white man as the appellant. Eastepp asked appellant what he had in his pocket, and appellant handed him some cigarette papers. He then asked what else appellant had in his pocket. Appellant started to reach into, his pocket, but the officer stopped him. Appellant then started running from the scene. As he ran, he pulled a plastic bag from his pocket and tried to empty its contents. Eastepp caught the appellant and seized the remaining contents of the bag, which was stipulated at the hearing to be less than two ounces of marihuana.

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Supreme Court said:

“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. * * * A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts then known.”

See also: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

This Court has frequently said that circumstances short of probable cause may justify temporary detention for the purpose of an investigation, since an investigation is considered to be a lesser intrusion upon the personal security of the individual. See Armstrong v. State, Tex.Cr.App., 550 S.W.2d 25, and cases there cited. In Armstrong, this Court set down the test for allowing brief stops without probable cause:

“There must be a reasonable suspicion by the law enforcement officer that some activity out of the ordinary is or had occurred, some suggestion to connect the detained person with the unusual activity and some indication that the activity is related to crime.”

On the facts of the instant case, we cannot say that the above test was met. At trial, Officer Eastepp gave two reasons for initially detaining appellant: 1. as the police car approached, appellant looked at it and then placed his hand in his pocket; and 2. appellant was a white man walking with two black men in an all-black neighborhood. The incident occurred near noon and there is no indication that this was a high crime area. We cannot say that either of these activities can properly be classified as “out of the ordinary.” More importantly, they certainly give no indication of in any way being connected to crime. Officer Eastepp confirmed the lack of any indication of criminal behavior when he testified as follows on cross-examination:

“Q. * * * Was there any indication of any criminal activity up until this point when you stopped and asked him what he had in his pocket?
“A. No.
“Q. None, whatsoever?
“A. No.”

Since there was absolutely no basis for Eas-tepp to believe that appellant was in any way connected with criminal activity, the original detention of appellant was illegal.

The marihuana in the instant case was seized as a result of this initial illegal detention of appellant. It was error for the trial court to refuse to suppress the evidence in question. See: Ceniceros v. State, Tex.Cr. App., 551 S.W.2d 50; Faulkner v. State, Tex.Cr.App., 549 S.W.2d 1.

The judgment is reversed and the cause remanded.


text:
    James Earl GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 54625.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 21, 1978.

      William E. Burdock, Saginaw, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Ronald G. Knight, David B. Lobingier and Scott Keeshin, Asst. Dist. Attys., Fort Worth, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

James Earl Green was charged for the offense of robbery by threats. A prior conviction for rape was alleged for enhancement. Punishment was assessed by the jury at fifteen years.

The indictment alleged that Green, while in the course of committing theft with intent to appropriate money of William Scott Clark, placed Clark in fear of imminent injury and death.

William Scott Clark testified that he was a high school senior from Orange who was in Fort Worth at the Downtowner Motel for a Key Club convention. He went to get ice on another floor of the motel. While he was waiting for an elevator on the second floor, appellant and another black man approached him. Appellant, the taller of the two, put his hand on Clark’s shoulder and said, “Man, why don’t you give me $2.00 for bus fare?” and Clark stated, “I don’t have any. All I have is money to pay for my room.” Clark further testified to the following:

“Q. Okay. What happened, then?
“A. He [appellant] said, T don’t intend to rob you or nothing, so why don’t you just give me the money?’ And I still hadn’t said anything. And he said, ‘If you don’t give me the money, I’m going to cave your head in.’ He said, ‘If you don’t give me the money, I’m gonna beat — ’ You want me to say what he said? It’s profane. ‘I’m gonna beat the -out of you.’ After he said that, the elevator door opened, the tallest guy put his hand on the door said, he said, ‘If you don’t give me the money, I’m going to shove you in here and we’re gonna wear your _out.’
“Q. Who said those words?
“A. The Defendant.”

Clark then ran down the hall to his room. His roommate opened the door and closed it behind Clark. He stayed in the room just long enough to tell about someone trying to rob him. Shortly after he left the room, he saw a policeman coming up the stairs and reported, “Somebody tried to rob me.” He gave a description of the two men to the officer. He testified that he feared for his life. He recognized appellant the next day at a lineup.

Larry A. Cox, a policeman for the City of Port Worth, testified that at approximately 9:30 p. m. on the night in question he was at the Downtowner Motor Inn and saw several people staring upon the second floor toward the balcony and he looked up. He saw two black males and one white male. The white male had his back to the railing as if both black males were holding or attempting to push him off the railing. Cox got out of his truck and started toward the stairs. The two black males observed him. Cox then ran upstairs and two of the people told him that two black males had just robbed them. One of those who said he was robbed was Randy Nation. A chase started, other officers joined in it and appellant and his companion were arrested.

At the penalty stage of the trial, appellant admitted that he was the person previously convicted of the offense of rape alleged in the indictment for enhancement and that he had been convicted in 1971 for the felony offense of breaking and entering a motor vehicle with intent to commit theft and was placed on probation. The probation was revoked when he had been convicted for rape.

He admitted that he had asked Clark for two dollars but that he did not threaten him in any way.

He also admitted that Mike Bostick was with him and that Nation gave Bostick two dollars, and when the officer came up the stairs, Bostick jumped off the roof and took off running.

Appellant contends that the evidence is insufficient to show the felony offense of robbery as denounced by V.T.C.A., Penal Code, Section 29.02, which provides:

“(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.
“(b) An offense under this section is a felony of the second degree.”

Reliance is had upon Jones v. State, 467 S.W.2d 453 (Tex.Cr.App.1971), as the test applicable. It is as follows:

“. . .to constitute the offense of robbery, there must be actual or threatened violence to the person antecedent to the robbery, or intimidation of such character that the injured party is put in fear. The fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will.”

In Lightner v. State, 535 S.W.2d 176 (Tex.Cr.App.1976), we held that the definition of robbery in the present penal code is broader than the one in Article 1408 of the 1925 Code.

The threat to cave in Clark’s head was sufficient under the statute. We hold that the evidence is sufficient to support the conviction.

We perceive no reversible error because the State offered to introduce the offense report. This should not have been done. The court sustained the objection and the contents of the report were not seen by the jury.

There being no reversible error, the judgment is affirmed.