author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Jose OZUNA, Appellant, v. The STATE of Texas, Appellee.
    No. 55448.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.
    Rehearing En Banc Denied Oct. 17, 1979.
    J. A. Canales, G. Rudolph Garza, Jr., Corpus Christi, on appeal only, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of marihuana. Upon his plea of not guilty, appellant was convicted by the court who assessed punishment at six years’ confinement.

Appellant contends that the court erred in overruling his motion to suppress certain evidence which he alleges was obtained as a result of an unlawful search and seizure. We agree and reverse the judgment of conviction.

On January 6, 1976, at approximately 12:45 a. m., Jourdanton police officers Bradshaw and Soward were monitoring citizen’s band radio channel 19 as they were parked in their patrol car on State Highway 16 which runs through the city. The officers heard a voice on the radio exclaim “Look out, look out, there is smoke.” They, then observed a 1974 green Pontiac approaching from the rear. Almost immediately thereafter the officers heard a voice on the radio for the second time instructing a red Ford to “Cut off at the red light.” Bradshaw signaled the green Pontiac over to the side of the road and observed that it was equipped with a citizen’s band radio. The driver of the vehicle, Garza, was permitted to proceed after the officers warned him about a vehicle equipment violation. The officers then began to patrol the immediate area in an effort to find the red Ford that was previously instructed by the unknown voice on the radio to “Cut off at the red light.”

After patrolling the area for several minutes, the officers observed near State Highway 16 a red and white 1970 Ford automobile driven by the appellant. The officers stopped the vehicle and observed that it too was equipped with a citizen’s band radio. As the officers were questioning the appellant outside his vehicle, Bradshaw detected the odor of marihuana. A search of the vehicle’s trunk yielded approximately 285 pounds of marihuana.

Bradshaw testified that the particular citizen’s band radio he was monitoring could receive radio signals within a radius of several miles and that under certain atmospheric conditions a radio signal could “skip” and thus be transmitted greater distances. Bradshaw also testified that he was unable to determine the identity and exact location of either the sender or receiver of the radio messages in question. Bradshaw further testified on cross-examination as follows:

“Q Why were you looking for the red Ford?
Because as to the fact of why he was diverted around us.
Okay. And, this curiosity was the only reason you were looking for him? o*
Yes, sir. <
And at the time that you heard that there was, you heard or your partner told you, about a transmission to turn off at the red light. <y
Yes, sir.
At that time, had you decided already that you were going to find that Ford? o*
Well, we were going to look for it. There is no definite saying, T am going to find it.’
Okay. <y
But, my partner told me, he said, ‘He told him to turn off at the red light, that he was getting stopped.’
Okay. o*
You know, I was curious as to the fact why anybody would have somebody else turn off if they had nothing to hide. <
Okay. So, at that particular time had you made up your mind to stop the vehicle, the red Ford, whenever you saw it? ,©
Yes sir. I told my partner, ‘Well, let’s see if we can find the red Ford and see why he turned off.’
You were going to stop the vehicle and question him about that? «©
Yes sir.
⅜ ‡ * ⅜ jft ‡
“Q Okay. Well, at the time that you stopped Mr. Ozuna, he showed you a valid driver’s license. At that time was Mr. Ozuna free to travel on?
“A No sir. He was going to be detained.
“Q And why was he going to be detained at that particular moment?
“A Well, just like I say, I was curious as to the fact of why he was diverted around us.
“Q But you, at that time, you were not sure whether this was the same person that Mr. Garza or who ever that transmission was related to, were you? You suspected him.
“A In my own mind?
“Q Yes sir.
“A In my own mind there was no doubt.
“Q But there was no way that you could tell that that particular transmission came from this particular car.
“A No sir, I can’t prove who was holding each radio.
* * * * * *
“Q When you asked Mr. Ozuna to step out of his vehicle, at that time he had committed no traffic violation that you know of.
“A No sir.
“Q And you were just kind of curious to find out what was going on.
“A Yes sir.”

It is well settled that a temporary detention must be based on specific, articulable facts which, taken together with the rational inferences from those facts, reasonably warrant further detention of the individual while more information is obtained; the inarticulate hunch, suspicion or good faith of a police officer will not warrant such a temporary detention. Faulk v. State, 574 S.W.2d 764 (Tex.Cr.App.1978); Cortinas v. State, 571 S.W.2d 932 (Tex.Cr.App.1978). In Faulk v. State, supra, we quoted with approval the following language of Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1977):

“. . . While a temporary investigative detention is allowed under certain circumstances, these circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officer. . . . There must be 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. [Citations omitted.] Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.”

In the present case, it was not established that the appellant was either the sending or receiving party of the radio messages which aroused the curiosity of the officers and caused them to temporarily detain the appellant for investigation. Even if we could attribute the radio messages to the appellant or Garza as appellant’s accomplice, we do not regard these utterances (“Look out, there is smoke” and “Cut off at the red light”), standing alone, as facts sufficient to make reasonable the investigative stop of the appellant. These events are as consistent with innocent activity as with criminal activity, and therefore will not justify an investigative stop. Faulk v. State, supra; Cortinas v. State, supra.

Moreover, Bradshaw himself testified that the only reason he stopped the appellant for investigation was to satisfy his curiosity as to why the appellant was instructed to “Cut off at the red light.” Thus, Bradshaw was unable to point to specific articulable facts which, taken together with the rational inferences therefrom, would reasonably warrant him in detaining the appellant for investigation. Cortinas v. State, supra. We conclude, therefore, that appellant’s initial detention was based on mere suspicion and that the court erred by failing to grant appellant’s motion to suppress the evidence seized as a result of this unlawful investigative stop.

The judgment is reversed and remanded.

Before the court en banc.

ON MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

The Court denies leave to file a motion for rehearing without written opinion.

The Honorable Robert Huttash, State Prosecuting Attorney before this Court, has filed for leave to file his motion for rehearing. The well written motion is adopted as the dissenting opinion. It is as follows: “TO THE HONORABLE COURT OF CRIMINAL APPEALS:

“Issues

“What is involved in this case is a temporary, investigative stop and the detention of the driver (appellant) because of suspicious activity based on ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1888, 20 L.Ed.2d 889 (1968). The acts of the officers in this case must be judged by this Court against an objective standard: ‘Would the facts available to the officer[s] at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate?’ Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. 1880.

“It is the State’s contention that the stopping of appellant’s car for investigative purposes was appropriate under Terry standards. Thereafter, the odor of marihuana emanating from the truck of the car gave the officers independent probable cause to search it; and, upon finding the marihuana, the officers had probable cause to made a custodial arrest of appellant.

“In holding that the seizure of the marihuana was unlawful, the panel opinion appears to state the facts most favorable to appellant, not the facts most favorable to the trial court’s ruling on the motion to suppress. Moreover, although the panel opinion states Terry standards, it fails to apply them to the facts. At one place the opinion states: ‘ . . . we do not regard these utterances (“Look out, there is smoke” and “Cut off at the red light”), standing alone, as sufficient probable cause justifying an investigative stop of appellant.’ (emphasis added) First, ‘these utterances’ do not stand alone, as there are additional facts that need to be stated. Second, as Terry makes clear, probable cause is not essential to an investigative stop. Therefore, the opinion’s conclusion that the initial detention ‘was not based on sufficient probable cause’ is incorrect.

“Evidence

“State Highway 16 runs north and south through Jourdanton (R.48). It runs from near the Mexican border north to San Antonio and is ‘one of the main routes from the north to the border of Mexico’ (R.49). At Jourdanton it intersects with State Highway 97, an east-west road (R.48-49). Both are main highways for transporting illicit drugs (R.50-51) and, perhaps, ‘wetbacks’ (R.162-163). Thus, a rational inference may be drawn from these specific and artic-ulable facts that the officers, in addition to other police duties, were not unaware of trafficking in drugs and smuggling of ‘wetbacks’ in the area.

“At around 12:45 a. m. on January 16, 1976 (R.52), Officers Bradshaw and So-ward were parked in their marked police car (R.110) ‘just south of the Wagon Wheel on Highway 16 facing north’ (R.52) and approximately 0.5 miles south of the intersection with Highway 97 (R.103). They listened not only to their police radio, but also had a Citizens’ Band radio with which they monitored transmissions on Channel 19 (R.53). This channel is usually used by the motoring public to check on police activity or what in C. B. lingo is referred to as ‘Smokey reports’ (R.53-55, 90-91), in order to avoid being caught for speeding (R.53-55, 90-91). However, as may be seen by the facts of this case, the C. B. can also be used for illicit drug traffickers in order to attempt to avoid detection.

“On the night in question the range of the officers’ C. B. was ‘around a mile or a mile and a half’ (R.135). As they sat in their car they heard someone transmit, ‘Look out, look out, there is smoke’ (R.55— 56), which Officer Bradshaw described as a ‘little off’ because ‘it was a different terminology’ (R.55), apparently because not ordinarily used in typical speeding situations (R.53-55, 99-100). The officers ‘turned around and looked behind’ and observed ‘a set of headlights coming up on us’ with a defective right front headlight (R.52). This automobile, a 1974 green Grand Prix Pontiac, passed them and the officers pursued (R.57). Both cars stopped at the intersection with Highway 97, which had a 4-way stop sign and a flashing red light four ways’ (R.57, 102). Officer Bradshaw flagged the Grand Prix down several blocks north of the intersection. At this time Officer So-ward heard the following C. B. transmission: ‘Grand Prix to red Ford, cut off at the red light, cut off at the red light. There is too much smoke, I am getting stopped’ (R.145-146).

“As Bradshaw approached the Grand Prix he observed ‘a citizens band radio mounted on the left hand side of the steering column which was turned on and on Channel 19, and he [co-defendant Garza] had a microphone laying on his left thigh and as I was talking to Mr. Garza there was a voice that came over the radio and he reached down and turned it off before it said anything that [Bradshaw] could understand’ (R.58).

“As Soward related to Bradshaw the transmission concerning the red Ford turning off at the red light, a set of headlights was observed coming up Highway 16 to the intersection of Highway 97 northbound (R.58). The headlights then turned right on Highway 97 going east (R.58). After checking Garza’s driver’s license and warning him of the defective headlight, Bradshaw released Garza (R.58-59), and he headed north (R.65).

“The officers then decided to try to find the car that had turned east at the intersection (R.59-60). Shortly, they heard more C. B. transmissions. ‘One voice was saying, “Hey, Grand Prix, hey, Grand Prix,” and this was coming in at a very close range, the needle indicating all the way into the red again. And then, in a distance, you could hear, “Hey, red Ford, hey, red Ford,” and which it was coming in very weak’ (R.60). As the officers got back to Highway 16 they observed tail lights, but this turned out to be the car of Rusty Ashby a dispatcher with the sheriff’s office (R.60— 61). The officers then observed a 1970 white over red Ford come from the east on a side street and turn to the right on Highway 16 northbound (R.61-62). This vehicle was not local, but ‘the registration on it was from down in the Valley’ (R.61). It also had a citizens’ band radio antennae mounted on the trunk (R.62). The officers stopped the Ford several blocks north of the 16-97 intersection at approximately ‘12:55’ (R.64). As Bradshaw approached the car he observed ‘a citizens’ band radio mounted on the right hand side of the steering column, which was on, and on Channel 19; and he also had the microphone laying on his right thigh’ (R.65). After conversation began between Bradshaw and appellant, appellant turned the C. B. off (R.65).

“The officers then checked appellant’s driver’s license and asked him to step to the rear of the car and asked him ‘why he was diverted around us, and the only answer we got was, he didn’t understand English’ (R.66-67). It was at this point the officers detected the smell of marihuana (R.67), opened the trunk (R.67-68), found what, in their experience, they believed to be marihuana (R.68), and made a custodial arrest of appellant (R.68).

“Argument

“The opinion emphasizes that the transmissions over the C. B. that night were ‘unknown voices’; that Bradshaw was unable to determine ‘the identity and exact location of either sender or receiver’; and he couldn’t ‘prove who was holding each radio.’ But, this is immaterial. Bradshaw was not required to have proof beyond a reasonable doubt as to who made the transmissions. All Bradshaw needed were ‘specific, articulable facts, which in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant intrusions on the freedom of the citizen stopped for further investigation.’ Brem v. State, 471 [571] S.W.2d 314 (Tex.Cr.App.1978).

“Here, Bradshaw is parked on the side of a main highway from the Mexican border. He knows that illicit drugs have been trafficked on that route. He hears ‘strong’ C. B. transmissions over Channel 19, which to his mind is not the ordinary ‘Smokey report.’ That report — ‘Look out, look out, there is smoke’ — is immediately followed by approaching northbound headlights. This car, a Grand Prix with a defective headlight, is equipped with a C. B. radio. As the car is stopped for the equipment violation, another transmission is heard — ‘Grand Prix, to red Ford, cut off at the red light. There is too much smoke, I am getting stopped.’ Bradshaw approaches the Grand Prix and observes that the C. B. radio is on and tuned in on Channel 19. Bradshaw then immediately sees headlights northbound on 16 make an eastbound turn on 97.

“Given the above facts, any reasonable person would conclude that the transmissions came from the Grand Prix which Bradshaw stopped. The traffic was light in this small town at that late hour. It is clear that the Grand Prix had warned a red Ford of police and told the driver to avoid them.

“Generally speaking, honest people do not try to avoid the police. Based on what Bradshaw knew, he could, and did, reasonably conclude that illegal activity was afoot. Surely, he was under a duty to see what was going on — find the red Ford. The only car he found which fit the description was appellant’s. He had a duty to temporarily stop that car to investigate. Upon doing so, he smelled marihuana and obtained probable cause to search the trunk; the trunk contained marihuana. This was a legal search after a temporary investigative stop as contemplated by Terry.

“The State’s motion for rehearing should be granted and the conviction affirmed. “Respectfully submitted,

/s/ Robert Huttash

“ROBERT A HUTTASH

State Prosecuting Attorney”

DALLY and W. C. DAVIS, JJ., join in this dissent.

      . The evidence does not show that this was the same voice that the officers had previously heard.

      “1. Officer Soward testified that, prior to co-defendant Garza’s arrest, he had ‘picked up some Wets that night’ (R.163).

      “2. Officer Soward was a carpenter’s helper who served as a reserve officer (R.144, 155). The Jourdanton police force only consisted of the Chief of Police, Officer Bradshaw, and four reserve officers (R.48, 87).

      “3. Their purpose was to watch the parking lot of the Wagon Wheel as there had been ‘a high ratio of thefts and vandalism there. . ’ (R.107).

      “4. The opinion, page 2, mentions that Bradshaw’s radio could receive signals within a radius of several miles and that under certain atmospheric conditions a radio signal could ‘skip’ and thus be transmitted greater distances. This statement, however, merely describes the radio’s potential. Bradshaw testified that on the night in question he had the radio ‘squelched down’ and that the range was one to one and a half miles.

      “5. Bradshaw described the transmission as ‘coming from close range because the reading needle on the radio indicated it was a strong signal, it jumped all the way in the red area whereas on a weak signal if it’s squelched down it won’t hardly move . ..’ (R.52).

      “6. Bradshaw testified that Garza ‘was very nervous, extremely nervous. Some people are nervous when they’re talked to about a traffic violation, but he was very, very nervous for just a mere headlight violation . . ..’ (R.59).

      “7. The time lapse was described as ‘5 to 7 minutes at most’ (R.64). Moreover, the traffic in Jourdanton at that time of night was extremely light (R.64). Bradshaw testified that, from the time Garza’s car was stopped until appellant’s car was stopped, the only other vehicle they saw was the green Ford belonging to Ashby (R.64). No other red Ford was seen (R.64). Only appellant’s vehicle fit the description of the red Ford mentioned in the C. B. transmissions (R.64). Moreover, Jourdanton is a small town, described as having a population of 1800 to 1900 people (R.86).

      “8. Soward testified that appellant ‘seemed like he was very nervous’ (R.147).


source: Caselaw Access Project

author: ONION, Presiding Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Ex parte Douglas E. WILLIAMS.
    No. 60707.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 9, 1979.
    Rehearing En Banc Denied Oct. 24, 1979.
    Jimmy Phillips, Jr., Angleton, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order of the 23rd District Court of Brazoria County refusing to discharge the appellant after a hearing on his application for writ of habe-as corpus.

Appellant contends the State failed to show probable cause for his continued detention. The record reflects that the appellant was arrested and charged by complaint with the offense of aggravated rape.

The State called two investigators from the sheriff’s office as witnesses. Neither had any personal knowledge of the offense. The State also introduced a copy of the complaint and the ex parte statement of the complaining witness, who did not testify though shown to be available for that purpose. These instruments were introduced over objection that they were hearsay and, with regard to the ex parte statement, that the appellant was being denied his right of cross-examination.

The rule is well established that when one is held in custody under complaint and seeks release by habeas corpus, it is incumbent upon the State to introduce against him sufficient evidence to show probable cause for holding him in custody. Ex parte Wright, 138 Tex.Cr.R. 350, 136 S.W.2d 212 (1940); Ex parte Livingston, 155 Tex.Cr.R. 218, 233 S.W.2d 503 (1950).

In Ex parte Nicely, 116 Tex.Cr.R. 143, 28 S.W.2d 147 (1930), it was held that the alleged escaped convict’s discharge on habe-as corpus was improperly refused since the only evidence was hearsay in the form of prison records, telegrams and letters from penitentiary authorities. And in Ex parte Hennington, 95 Tex.Cr.App. 495, 264 S.W. 104 (1923), it was held that in a habeas corpus proceeding an ex parte statement, purporting to have been signed by two individuals, neither of whom had testified, was inadmissible.

Ex parte Garcia, 547 S.W.2d 271 (Tex.Cr.App.1977), held that a challenge to probable cause to hold a defendant in custody cannot be defeated in habeas corpus proceeding by a mere showing of the existence of a complaint or accusation.

In the instant case, the State introduced the complaint. This, standing alone, was not sufficient to prevent appellant’s release. Ex parte Garcia, supra. The other instrument was hearsay evidence and should not have been admitted. Ex parte Nicely, supra; Ex parte Hennington, supra.

Eliminating the hearsay evidence, which was introduced over objection, the only evidence is the complaint, which is not sufficient alone to prevent appellant’s release.

The judgment remanding appellant to custody is reversed and appellant is ordered released under this particular proceeding.

It is so ordered.

Before the court en banc.

DOUGLAS, Judge,

dissenting on State’s motion for leave to file Motion for Rehearing.

The panel opinion holds that a complaint, standing alone, is insufficient to prevent appellant’s release from custody and that the affidavit of the prosecuting witness should not have been admitted because it was hearsay.

The panel appears to recognize that the State needs only to show probable cause in order to defeat the discharge of a defendant charged with a criminal offense. This is so because Article 11.46, Y.A.C.C.P., provides:

“Where, upon an examination under habeas corpus, it appears to the court or judge that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or admitted to bail.”

See also Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

The panel opinion fails to recognize that probable cause can be established by hearsay evidence both under the Federal Constitution, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and under Texas law, Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975).

The sworn complaint of Deputy Sheriff Stiles and the affidavit of the prosecutrix, although hearsay, are sufficient to show probable cause. Absent an allegation and an offer of proof of deliberate falsehood or reckless disregard for the truth as to statements made in the affidavits, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the office of habeas corpus should not be turned into a discovery device or “fishing expedition” prior to trial. See Ex parte Garcia (Garcia v. State), 547 S.W.2d 271 at 275 (Tex.Cr.App.1977), concurring opinion by Onion, P. J. Moreover, the fact that an accused is presumed to be innocent, Article 11.43 V.A.C.C.P., is no reason for not requiring bail or further pretrial detention. See Bell v. Wolfish, - U.S. -, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

Leave to file the State’s motion for rehearing should be granted and the order of the trial court should be affirmed.

W. C. DAVIS, J., joins in this dissent.

      . This record does not reflect that the appellant has been indicted.


author: ODOM, Judge. PHILLIPS, Judge,

text:
    Judith Leigh PEARSON, Appellant, v. The STATE of Texas, Appellee.
    No. 58055.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 3, 1979.
    Rehearing En Banc Denied Oct. 17, 1979.
    Stephen E. VanGaasbeck and E. D. Christensen, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Michael Kuhn, and Vic Driscoll, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder; punishment was assessed by the court at life.

The sufficiency of the evidence is not challenged. Although three grounds of error are asserted in the brief, the second was abandoned at oral argument, leaving two issues for consideration in this appeal.

In her first ground of error appellant contends the trial court erroneously admitted papers and writings seized during a search of the homicide scene. As pointed out in her supplemental brief, this search and seizure were in violation of the principle announced in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The search was conducted on April 9, 1976, and the trial in this case was in January of 1977. Thus, both the search and trial were conducted prior to the decision in Mincey v. Arizona, supra. At that time the common law “exigency rule” allowed such homicide scene investigations. Brown v. State, 475 S.W.2d 938, 948-950. We are therefore confronted with the question of the retroactive effect of Mincey.

In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the court discussed the retroactivity of exclusionary rule cases from the perspectives of both the imperative of judicial integrity and the deterrence rationale:

“Since 1965 this Court has repeatedly struggled with the question of whether rulings in criminal cases should be given retroactive effect. In those cases ‘[wjhere the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials,’ Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971), the doctrine has quite often been applied retroactively. It is indisputable, however, that in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, supra [388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199]; Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969); Williams v. United States, supra; Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).
“We think that these cases tell us a great deal about the nature of the exclusionary rule, as well as something about the nature of retroactivity analysis. Decisions of this Court applying the exclusionary rule to unconstitutionally seized evidence have referred to ‘the imperative of judicial integrity,’ Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960), although the Court has relied principally upon the deterrent purpose served by the exclusionary rule. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968); See also United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). And see also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 668-672 (1970).
“When it came time to consider whether those decisions would be applied retroactively, however, the Court recognized that the introduction of evidence which had been seized by law enforcement officials in good-faith compliance with then-prevailing constitutional norms did not make the courts ‘accomplices in the willful disobedience of a Constitution they are sworn to uphold.’ Elkins v. United States, supra, 364 U.S., at 223, 80 S.Ct. at 1447. Thus, while the ‘imperative of judicial integrity’ played a role in this Court’s decision to overrule Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), see Mapp v. Ohio, supra, 367 U.S., at 659, 81 S.Ct. at 1693, the Mapp decision was not applied retroactively: ‘Rather than being abhorrent at the time of seizure in this case, the use in state trials of illegally seized evidence had been specifically authorized by this Court in Wolf.’ Linkletter v. Walker, supra, 381 U.S., at 638, 85 S.Ct., at 1742 (footnote omitted). Similarly, in Lee v. Florida, supra, this Court overruled Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952), and held that evidence seized in violation of Sec. 605 of the Federal Communications Act of 1934, 48 Stat. 1103, 47 U.S.C. Sec. 605, by state officers could not be introduced into evidence .at state criminal trials:
“ ‘[T]he decision we reach today is not based upon language and doctrinal symmetry alone. It is buttressed as well by the “imperative of judicial integrity.” Elkins v. United States, 364 U.S. 206, 222, [80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669]. Under our Constitution no court, state or federal, may serve as an accomplice in the willful transgression of “the Laws of the United States,” laws by which “the Judges in every State [are] bound . . . ” ’ 392 U.S., at 385-386, 88 S.Ct. at 2101 (footnotes omitted).
“But when it came time to consider the retroactivity of Lee, the Court held that it would not be applied retroactively, saying:
“ ‘Retroactive application of Lee would overturn every state conviction obtained in good-faith reliance on Schwartz. Since this result is not required by the principle upon which Lee was decided, or necessary to accomplish its purpose, we hold that the exclusionary rule is to be applied only to trials in which the evidence is sought to be introduced after the date of our decision in Lee.’ Fuller v. Alaska, supra, 393 U.S., at 81, 89 S.Ct. at 62.
“The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of judicial integrity’ is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner. It would seem to follow a forti-ori from the Linkletter and Fuller holdings that the ‘imperative of judicial integrity’ is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law even if decisions subsequent to the search or seizure have held that conduct of the type engaged in by the law enforcement officials is not permitted by the Constitution. For, although the police in Linkletter and Fuller could not have been expected to foresee the application of the exclusionary rule to state criminal trials, they could reasonably have entertained no similar doubts as to the illegality of their conduct. See Wolf v. Colorado, 338 U.S., at 27, 69 S.Ct. at 1361; Sec. 605 of the Federal Communications Act of 1934; cf. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937).
“This approach to the ‘imperative of judicial integrity’ does not differ markedly from the analysis the Court has utilized in determining whether the deterrence rationale undergirding the exclusionary rule would be furthered by retroactive application of new constitutional doctrines. See Linkletter v. Walker, supra, 381 U.S., at 636-637, 85 S.Ct., at 1741-1742; Fuller v. Alaska, supra, 393 U.S., at 81, 89 S.Ct., at 62; Desist v. United States, supra, 394 U.S., at 249—251, 89 S.Ct., at 1033-1035. In Desist, the Court explicitly recognized the interrelation between retroactivity rulings and the exclusionary rule: ‘[W]e simply decline to extend the court-made exclusionary rule to cases in which its deterrent purpose would not be served.’ 394 U.S., at 254 n. 24, 89 S.Ct., at 1036.
“This focus in the retroactivity cases on the purposes served by the exclusionary rule is also quite in harmony with , the approach taken generally to the exclusionary rule. In United States v. Calandra, 414 U.S., at 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561, we said that the exclusionary rule ‘is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ It follows that ‘the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’ Ibid. We likewise observed in Michigan v. Tucker, 417 U.S., at 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182:
“ ‘The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.’ ”

We hold that because the search and trial in this case occurred before the decision in Mincey v. Arizona, supra, when Brown v. State, supra, was still good law, the disposition of appellant’s first ground of error is controlled by Brown instead of Mincey. The ground of error is overruled.

In the other ground of error presented by appellant, she contends that handwriting samples taken from her and used as evidence in the case were the product of an illegal arrest. She argues the arrest was illegal because she was not taken before a magistrate until four days after her arrest and after the handwriting samples were taken. We note that handwriting samples do not violate the privilege against self-incrimination, Olson v. State, Tex.Cr.App., 484 S.W.2d 756, and that no causal connection between the failure to take her before a magistrate and the taking of the handwriting samples was shown. Hester v. State, Tex.Cr.App., 544 S.W.2d 129, 134-135.

The ground of error is overruled.

The judgment is affirmed.

Before the Court en banc.

PHILLIPS, Judge,

dissenting on the denial of appellant’s motion for rehearing en banc.

I cannot agree that Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), is not retroactive. The Supreme Court in Mincey did nothing more than apply well-established Fourth Amendment law. The opinion in Mincey, 98 S.Ct. at 2412-2413, states:

. The Fourth Amendment proscribes all unreasoriable searches and seizures, and it is a cardinal principle that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576; see also South Dakota v. Opperman, 428 U.S. 364, 381, 96 S.Ct. 3092, 3103, 49 L.Ed.2d 1000 (POWELL, J., concurring); Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 2045, 29 L.Ed.2d 564; Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409; Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889; Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663. The Arizona Supreme Court did not hold that the search of the petitioner’s apartment fell within any of the exceptions to the warrant requirement previously recognized by this Court, but rather that the search of a homicide scene should be recognized as an additional exception.
Several reasons are advanced by the State to meet its “burden ... to show the existence of such an exceptional situation” as to justify creating a new exception to the warrant requirement. See Vale v. Louisiana, supra, 399 U.S., at 34, 90 S.Ct., at 1971; Jeffers v. United States, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59. None of these reasons, however, persuades us of the validity of the generic exception delineated by the Arizona Supreme Court. ., we hold that the “murder scene exception” created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments— that the warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.9 [Footnote omitted]

Mincey did not announce any new rule of law, or represent a “sharp break in the web of the law.” See United States v. Hart, 546 F.2d 798 (9th Cir. 1976). What Mincey did was mend a break in the law caused by a number of cases which gradually evolved into the so-called “murder scene exception” to the warrant requirement. As pointed out in Mincey, this is not and never has been a valid exception to the warrant requirement. It appears to have evolved from cases which held that a warrantless entry into a home was justified in the event the police had reason to believe that a person was dying or otherwise in need of immediate aid. See United States v. Barone, 330 F.2d 543 (2d Cir. 1964); Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963). This is a recognized exception to the warrant requirement. See Mincey, 98 S.Ct. at 2413-2414. Once inside, the officers may seize incriminating evidence that is in plain view, or inspect the premises to make sure that all danger has passed and the situation is under control, as these are also recognized exceptions. See Mincey, 98 S.Ct. at 2414. But a general search of the premises for incriminating evidence, after the emergency has subsided, is not and has never been justifiable.

The majority states that at the time of the search in this case the “common law ‘exigency rule’ allowed such homicide scene investigations,” citing Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971). To the extent that Brown and its isolated companions Tocher v. State, 501 S.W.2d 921 (Tex.Cr.App.1973), and Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973), authorized searches under the “murder scene exception,” they were not based on precedent and were clearly contrary to established Fourth Amendment law. It is reasonable to assume that a lawyer familiar with search and seizure law would have recognized these cases as a substantial departure from established law, and could have advised interested parties that these cases represented unsound authority.

I see no reason to retroactively apply such sparse case law that has been open to serious question since its inception. I would hold that since Mincey simply applied existing search and seizure law and stated nothing that we did not know already, it should be applied retroactively. Compare United States v. Hart, supra; United States v. Martinez, 526 F.2d 954 (5th Cir. 1976).

United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), does not require a different result. The 9th Circuit Court of Appeals had held in Peltier that the decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), holding a warrantless border search of an automobile unconstitutional, was to be applied retroactively because the decision overruled no prior Supreme Court decision and reaffirmed established law. In reversing the Ninth Circuit in Peltier, the Supreme Court noted that border searches of the type struck down by Almeida-Sanchez had been upheld by the courts for 20 years, and that the border patrol agents were acting under the express authority of a statute and long-standing administrative regulations. It concluded from this that the officers’ conduct in performing the searches and seizures was not “blameworthy.” The case law on the “murder scene exception” is sparse, of dubious origin, without statutory approval, and has been openly contrary to established Fourth Amendment law from the beginning. The conduct of the officers in this case cannot be labeled blameless.

Finally, although the Court in Peltier engaged in a general discussion of the retroac-tivity of exclusionary rule cases, Peltier did not establish a per se rule that cases which extend the scope of the exclusionary rule should not be applied retroactively. To accept it as such would be to adopt just the “mechanical approach” to the issue of retro-activity that the Court in Peltier repudiated.

I dissent to the denial of appellant’s motion for rehearing.


author: TOM G. DAVIS, Judge.

text:
    Billy Joe JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 61694.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 18, 1979.
    Rehearing Denied Oct. 24, 1979.
    Jimmy Phillips, Jr., Angleton, for appellant.
    Doyle W. Neighbours, Criminal Dist. Atty. and Kim R. Fallwell, Asst. Dist. Atty., Angleton, Robert Huttash, State’s Atty., Austin, for the State.
    Before TOM G. DAVIS, ROBERTS and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for delivery of marihuana. Trial was before the jury upon a plea of guilty. Punishment was assessed at two years.

Appellant contends that the trial court erred in failing to admonish him as to the range of punishment before the plea of guilty was accepted.

The record reflects that the court out of the presence of the jury made inquiry of appellant if he were pleading guilty because he felt like he was guilty, if anyone had threatened him to force a plea of guilty, if anyone had promised him a pardon in return for a plea of guilty, if he felt as though he was sane both at the time of trial and at the time of the offense, but did not admonish appellant as to the range of punishment for the offense.

Article 26.13(a)(1), V.A.C.C.P. provides in pertinent part:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of punishment attached to the offense; And . . . ”

The failure to admonish a defendant as to the range of punishment constitutes reversible error. Fuller v. State, Tex.Cr.App., 576 S.W.2d 856; and Stewart v. State, Tex.Cr.App., 580 S.W.2d 594.

The State contends that appellant was aware of the range of punishment due to the fact that it was discussed extensively during voir dire of the jury panel. We have held that it is the duty of the trial judge to admonish the defendant as to the range of punishment. Murray v. State, Tex.Cr.App., 561 S.W.2d 821. The fact that the defendant may have learned this information from some third party is not sufficient to satisfy Article 26.13, supra. Whitten v. State, 587 S.W.2d 156 (1979). Lastly, the State contends that there was substantial compliance with Article 26.13, supra, at appellant’s trial. Under these circumstances, we are not faced with a question of whether there was substantial compliance, but with a situation of no compliance under Article 26.13(a)(1), supra. See, Carrillo v. State, Tex.Cr.App., 576 S.W.2d 824.

The judgment is reversed and the cause remanded.


author: ROBERTS, Judge.

text:
    Lucille VALENTINE, Appellant, v. The STATE of Texas, Appellee.
    No. 56746.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 24, 1979.

      Malcolm R. Sanders, Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and T. Michael Sutton, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

The appellant was indicted for murder, but the jury found him guilty of the lesser included offense of voluntary manslaughter and assessed punishment at ten years’ confinement.

Appellant presents seven grounds of error, all of which complain of the court’s chargé to the jury at the guilt-innocence phase of the trial. We affirm.

. The appellant testified in her behalf that during the early morning hours of July 20, 1974, she was awakened when her estranged husband, the deceased, began knocking on her trailer door and shouting obscenities. The appellant also testified that she knew the deceased to be a violent person and that he, on past occasions, administered to her general beatings with his fists and on two occasions stabbed her with a knife without provocation. She stated that immediately prior to the shooting, she was in fear for her life because the deceased threatened to kill her and attempted to enter the trailer by prying open the door from the outside at which time the appellant drew a .22 caliber pistol and from inside the trailer fired twice into the door. One of the bullets struck the deceased in the back of the head and killed him instantly.

In her first, fourth and sixth grounds of error, the appellant complains of the court’s failure to instruct the jury that she had the right to defend against a reasonable apprehension of danger as viewed from her standpoint at the time of the offense. She cites Jones v. State, 544 S.W.2d 139 (Tex.Cr.App.1976). We find no merit in this contention.

The court’s instruction to the jury, in pertinent part, was as follows:

“Therefore, even if you believe from the evidence beyond a reasonable doubt that the defendant, Lucille Valentine, did shoot, [the deceased] with a gun, as alleged, but you further believe from the evidence, or you have a reasonable doubt thereof, that, at the time she did so, the defendant reasonably believed that [the deceased] was using or attempting to use unlawful deadly force against her and that she reasonably believed that the use of force and the degree of force used were immediately necessary to protect herself against [the deceased’s] use or attempted use of deadly force, and that a reasonable person in the defendant’s situation would not have retreated, you will find the defendant not guilty.” (Emphasis supplied.)

Prior to giving this instruction, as part of its charge on the law of self-defense, the court instructed the jury that:

“By the term ‘reasonable belief’, as herein used, is meant a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.”

In Jones v. State, supra, relied upon by the appellant, it was held that the court committed reversible error by refusing the defendant’s properly requested instruction on his right to defend against apparent danger as viewed from his standpoint when the issue was raised by the evidence. In Jones, the court instructed the jury that the defendant would be justified in killing the deceased if “ . . .at the time he did so, the [deceased] was using or attempting to use unlawful deadly force against the defendant, [etc.] . . . .” (Emphasis supplied.) This charge was held to be inadequate because it required the jury to find, or have a reasonable doubt thereof, that at the time he was shot, the deceased was actually using or attempting to use unlawful deadly force against the defendant. We held:

“This Court, under the former Penal Code (1925), has consistently held that where the evidence raises the issue of apparent danger, the court, in instructing the jury on the law of self-defense, should tell it that a person has a right to defend from apparent danger to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time.
******
“ . . . [I]n the instant case it was not necessary that the jury find that the deceased was using or attempting to use unlawful deadly force against appellant in order for appellant’s right of self-defense to exist. It would be sufficient if the jury found that the appellant reasonably believed, as viewed from his standpoint at the time, that deadly force, when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by deceased.”

V.T.C.A., Penal Code, Section 9.31(a) expressly provides that “a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary . . . .” Likewise, V.T.C.A., Penal Code, Section 9.32 provides that deadly force may be used to defend oneself if one “reasonably believes the deadly force is immediately necessary . .” Unlike the court in Jones v. State, supra, the court in the present case instructed the jury that the appellant’s conduct would be justified if the appellant reasonably believed that the deceased was using or attempting to use unlawful deadly force against her at the time of the shooting. By defining the term “reasonable belief” as it did, the court instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary. See V.T.C.A., Penal Code, Section 1.07(31). Furthermore, we observe that the court’s charge is in accordance with Sections 1.07(31), 9.31, and 9.32 of the Penal Code, all of which adequately presented the appellant’s defensive theory and protected her rights. Article 36.19 V.A.C.C.P. Appellant’s contention is overruled.

Contrary to the appellant’s next contention, the court instructed the jury that it was allowed to consider “all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the alleged offense.” This instruction comports with V.T.C.A., Penal Code, Section 19.06. The appellant further contends that in addition to this charge, the court should have instructed the jury “to consider the words, acts, and conduct, if any, of the decedent at the time of and prior to the time of the alleged killing and consider whatever threats, if any, the decedent may have made to the Appellant and consider any difficulty which the decedent had had with the Appellant in determining what belief would be held by an ordinary and prudent person in the same circumstances as the Appellant and in her circumstances alone.” We hold that this requested charge was adequately presented by the court’s instruction to the jury pursuant to Section 19.06, supra, (see footnote 1) to the effect that the jury could consider “all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased . . . .” When the charge refused is substantially the same as or is adequately covered by the charge given, no harm is shown. Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977). Appellant’s contention is overruled.

Next, the appellant contends that the trial court erred by instructing the jury, over timely objection, upon the law of “retreat.” (See quote from the charge, supra.) The appellant argues that under Texas law, a person has no duty to retreat from his own home and therefore, the jury should not have been so instructed. We disagree. In Sternlight v. State, 540 S.W.2d 704 (Tex.Cr.App.1976), we noted that one of the most drastic changes made in the new Penal Code is that before deadly force may be used in self-defense the actor is required to retreat if a reasonable person in the actor’s situation would have retreated. See also V.T.C.A., Penal Code, Section 9.32(2). We further noted in Sternlight that an instruction on the law of retreat requires the jury “in deciding the issue on self-defense to determine whether the [defendant] had the ability and opportunity to retreat considered as a part of all of the circumstances of the moment.” Ibid, at 706. We concluded our discussion on this point by holding that an instruction on the law of retreat drafted in the language of the statute is sufficient. Our holding in Sternlight is in harmony with the Practice Commentary following Section 9.32, supra, which states:

“ . . .A person ought to retreat, if he can do so safely, before taking human life; and because Texas law never imposed this duty, it is set out in Section 9.32(2). By measuring the existence and extent of the retreat obligation in terms of the ordinary person in the actor’s situation, it is contemplated that the fact-finder will make a moral judgment on whether a defendant in a specific case ought to have retreated before threatening or using deadly force.” Practice Commentary, V.T.C.A., Penal Code, Section 9.32.

The appellant sought to justify the homicide on the theory that she killed the deceased in self-defense. The fact that she was inside her trailer house at the time she shot the deceased is only a factor to be considered by the jury' in determining whether or not the appellant satisfied the retreat obligation imposed by Section 9.32(2), supra. Had the appellant sought to justify her conduct under V.T.C.A., Penal Code, Section 9.42 (Deadly force to protect property), we might be faced with a different question. However, the evidence did not raise this defense. Thus, we need not pass upon the question of whether or not a retreat obligation exists when one relies upon the justification provided for in Section 9.42, supra. We conclude that the trial court correctly submitted to the jury, as the trier of fact, the question of appellant’s duty to retreat under the circumstances of the present case. This contention is overruled.

Finally, the appellant contends that the court erred by instructing the jury pursuant to Section 9.32, supra, that before a person is entitled to use deadly force in self-defense he must reasonably believe “the deadly force is immediately necessary . to protect himself against the other’s use or attempted use of unlawful deadly force.” Appellant argues that one should not have to make a “judicial determination” of what constitutes deadly force before he is entitled to respond with deadly force.

One of the requirements which must be met before there arises a justification for the use of deadly force against another is that the actor must also be justified in using force against another under Section 9.31, supra, which provides, in part, that “[A] person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful . force.” (Emphasis supplied.) Thus, before one exerts deadly force in response to an attack upon him, he must reasonably believe it is necessary. Consequently, the actor is held to the standard of “an ordinary and prudent man in the same circumstances as the actor.” Section 1.07(31), supra. We conclude that the trial court did not err by holding the appellant to this standard under the facts of the present case. Appellant’s final contention is overruled.

The judgment is affirmed.

      . Section 19.06, supra, provides:
      “In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all the relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.”

      . Section 9.42 provides, in pertinent part, as follows:
      “A person is justified in using deadly force against another to protect land- or tangible, movable property:
      “(1) if he would be justified in using force against the other under Section 9.41 of this code . .
      Section 9.41, supra, provides, in pertinent part, as follows:

        “(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property. . . ”


author: CLINTON, Judge.

text:
    Lillion Dick CRUISE, Appellant, v. The STATE of Texas, Appellee.
    No. 57578.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 24, 1979.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler, C. Wayne Huff and Paul D. Maca-luso, Asst. Dist. Attys., Dallas, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted by a jury of the offense of robbery by causing bodily injury pursuant to V.T.C.A. Penal Code, Section 29.02(a)(1). Appellant was sentenced to life confinement as an habitual offender.

Because we must sustain appellant’s first ground of error, only the facts germane to it will be discussed coincidentally with its treatment.

Complaint is made of the trial court’s failure to quash the indictment, of which the primary offense count reads:

[Appellant] . . . did unlawfully . while in the course of committing theft and with the intent to obtain and maintain control of the property of Margaret McGee, . . . the said property being a handgun, without the effective consent of the . . . complainant and with intent to deprive the . complainant of [the] property, did then and there knowingly and intentionally cause bodily injury to the . . . complainant.

By timely written motion to quash the indictment, appellant apprised the trial court that, among other things, “it cannot be determined from the face of the indictment if the defendant is alleged to have caused bodily injury to the complainant by striking her with his fists, or kicking her with his feet, or shooting her with a gun, or stabbing her with a knife, or running into her with a motor vehicle, or by any means. With regard to how the defendant caused bodily injury to the complainant, the indictment is silent.” This complaint, having been properly asserted, calls into question the adequacy of the constitutional requisite of notice to the accused and therefore, requires our consideration of it from his perspective. Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977).

We believe it unnecessary in our inquiry to go beyond the prescription of Art. 21.03, V.A.C.C.P., that “everything should be stated in an indictment which is necessary to be proved.” We fail to see in what manner the State might hope to prove to the jury beyond a reasonable doubt that appellant caused bodily injury to the complainant, without adducing facts that described the way in which he did so. This being the case, the trial court committed reversible error in refusing to order the State to disclose such facts when confronted with appellant’s motion to quash the indictment for the reasons stated. Art. 21.03, supra; Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978). Cf. Boney v. State, 572 S.W.2d 529 (Tex.Cr.App.1978) and Pollard v. State, 567 S.W.2d 11 (Tex.Cr.App.1978). The record before us provides most persuasive support for our conclusion, as it reflects the following: The complainant, an off-duty Dallas police woman, testified that as she was getting into her car she noticed appellant approaching her rapidly. Before she could lock the door, he began pulling on it. Officer McGee began screaming and honking her car horn while she struggled to close the door. Appellant finally got the door open and according to McGee, . .he struck me to the left side of the head with his fist.” The prosecutor inquired:

Q: How many times?
A: Twice.
♦ * * * * *
Q: Was it a hard blow or soft blow?
A: Hard blow.
Q: Did it cause you physical pain?
A: Yes.

Appellant told complainant to move over to the passenger seat, which she did, and he entered the car. Appellant then demanded that McGee give him the keys, and she told him she did not know where they were. Both parties then looked at McGee’s purse which was sitting on the console and reached for it. Appellant grabbed it, struck her with it and her loaded .38 caliber revolver fell out. Appellant and McGee again struggled over the gun; appellant finally got control of it and began threatening McGee that he would kill her if she failed to produce the keys, explaining that “he had been wounded and . . . needed to get out of town. He said he was a panther and he needed the car, some money for gas and he wanted [McGee] to go with him until he got out of the county. . . . ” On being asked whether “besides the pain in your head, was there any other physical pain?,” McGee responded, “There were marks associated with the struggle [over the gun]. I had cuts on both hands.”

McGee ultimately broke away and ran to a passing police car. Appellant was immediately apprehended.

It is clear that it was necessary for the State to prove the manner in which appellant caused bodily injury to complainant, in order to meet its burden of proof. While allegation of the manner and means of causing bodily injury under Section 29.-02(a)(1) is not a fundamental requisite of charging the offense for purposes of invoking the district court’s jurisdiction, [compare Posey v. State, 545 S.W.2d 162 (Tex.Cr.App.1977)], appellant’s motion to quash entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. Article 27.09, V.A.C.C.P.; American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

For the trial court’s error in this respect, the judgment of conviction is reversed, and the cause is remanded.

      . Section 29.02(a)(1) provides:
      A person commits an offense if, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he:
      (1) intentionally, knowingly, or recklessly causes bodily injury to another; .

      . All emphasis is supplied throughout by the writer unless indicated otherwise.

      . “ ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.” V.T. C.A., Penal Code, Section 1.07(7).

      . The keys were in fact in the passenger seat with complainant sitting on them.


author: ONION, Presiding Judge.

text:
    Juan Daniel MORENO and Francisco Gonzalez Moreno, Appellants, v. The STATE of Texas, Appellee.
    Nos. 59057—59059.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 24, 1979.

      Anthony Nicholas, Roy R. Barrera and Terrence W. McDonald, San Antonio, on appeal only, for appellants.
    Oscar B. Mclnnis, Dist. Atty., Edinburg, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ONION, Presiding Judge.

These are appeals from appellants’ convictions for murder and from an order revoking the probation of appellant Francisco Moreno granted in a possession of marihuana case. The jury assessed punishment at forty (40) years’ imprisonment for each appellant in the murder cases, and following revocation, appellant Francisco Moreno was assessed a five (5) year sentence.

The sufficiency of the evidence is not challenged. Suffice it to say the record shows that on Sunday afternoon of August 8,1976, two groups of people were eating a late lunch in Wyatt’s Cafeteria in McAllen. One group consisted of the appellants and two acquaintances (a husband and wife) whom they had invited to eat with them. The other group consisted of the deceased, Octavio Tirado, Oscar Perez and Francisco Uranga, the latter two being citizens of Mexico. The Moreno group left the cafeteria first and some ten or fifteen minutes later the deceased and his companions left. As they approached their car, they were attacked by gunmen. Tirado was killed and Ozuna was wounded; Uranga escaped. At trial Uranga identified the appellants as the gunmen who shot and killed Tirado. Appellants relied on the defense of alibi and claimed a frame-up. Defense witnesses placed the appellants elsewhere at the time of the shooting and an attempt was made to show that Uranga arranged Tirado’s murder and then sought to implicate the appellants. The jury by their verdict rejected such claims.

In their first ground of error appellants contend the trial court erred in overruling their “timely presented motion to summon 147 prospective jurors excused in violation of the applicable laws of the State of Texas.”

It appears that at a previous setting of the cases the court granted appellant’s motion to quash the jury panel. While it is not clear, it appears the ruling was based on irregularities and loose practices in excusing prospective jurors. Another jury panel was summoned for October 4, 1976. On such date the appellants filed an instrument simply entitled “Motion” requesting that 310 prospective jurors who had been improperly excused be summoned. The number was later changed to 147 prospective jurors. In support of their motion, appellants called a deputy district clerk who testified as to the procedures used in excusing prospective jurors summoned for October 4, 1976. Her testimony from the earlier and successful hearing on the motion to quash the jury panel previously summoned was offered. There is nothing to show that any prospective jurors summoned for October 4th from which the jury in these cases was selected were improperly excused. Further, we do not find that the appellants obtained a ruling on their “Motion.” We further observe that Article 35.01, V.A.C.C.P., concerning attachment of absent prospective jurors, has been held to be directory, not mandatory. Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Dent v. State, 504 S.W.2d 455 (Tex.Cr.App.1974). We also observe they have failed to show any injury if in fact the court did refuse to summon the previously excused prospective jurors.

There appears to be some argument that the “Motion,” despite its simple designation and its contents, should be considered as a motion to quash the jury array. We observe, however, that Article 35.07, V.A.C. C.P., requires that a challenge to the array be supported by an affidavit. There is no affidavit attached to the “Motion” in question. Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.1974), and cases there cited. Appellants’ ground of error is overruled.

Next, appellants contend the trial court erred in failing to sustain two of their challenges for cause and subsequent request for two additional peremptory challenges or strikes.

The only part of the voir dire examination brought forward in this record is the separate examination of prospective jurors Townsend and Morin to whom challenges for cause were overruled. It does appear that prior to striking the jury lists the appellants asked for the additional peremptory challenges in light of the court’s rulings on the challenges for cause to Townsend and Morin. Such request was denied. The appellants rely upon Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274 (1944), wherein this court wrote (at page 281):

“. . . in the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him.”

Assuming, without deciding, that Townsend and Morin were disqualified and that the challenges for cause should have been sustained, we observe from the meager record of the voir dire examination before us that it does not reflect that the appellants used peremptory challenges on Townsend and Morin. While other evidence in the record reflects that neither served on the jury, the record is silent as to whether a forced peremptory challenge to each juror was the reason. Still further, and more importantly, there is no showing that the appellants exhausted all their peremptory challenges. There are no jury lists or other evidence to show what was done in this regard. We also observe there is no support for the assertion that an objectionable juror served on the jury. While Wolfe does not require that a defendant show grounds for a challenge for cause nor show why a particular juror was objectionable, a defendant must at least state that a particular juror or jurors are objectionable to him, after he has exercised peremptory challenges on other prospective jurors who were disqualified and where his challenges for cause on such jurors were overruled.

Appellants’ counsel stated to the court:

“There are other jurors left on the prospective list that are objectionable to these defendants and to their attorneys, whom they would strike as prospective jurors were they not compelled to ex-hause (sic) their twelve challenges allowed by the Court by striking the said two named jurors, John J. Townsend, Jr. and Thomas R. Morin.”

We do not conclude that such a blanket statement is sufficient to invoke the Wolfe rule. Here there is no showing that any juror who was objectionable served on the jury. The asserted fact that certain other jurors, without designation, were objectionable was certainly not sufficient in and of itself to show that any objectionable juror served on the jury that convicted the appellants.

Appellants also contend the “trial court erred in denying defendants the right of effective cross-examination by preventing defendants from introducing a pending federal indictment to establish interest, bias and motive on the part of the State’s witness, Francisco Uranga.”

The State filed a motion in limine which was granted ordering the appellants not to mention before the jury any indictment pending against Uranga until a hearing was held before the court on its admissibility. During the trial the appellants asked for such hearing which became their bill of exception. At the hearing it was shown that Uranga was under indictment in the United States District Court for the Southern District of Texas, Brownsville Division. The record is in some confusion as to the exact nature of the offense. The indictment was introduced for the purpose of the bill of exception, but is not to be found in the appellate record. The hearing did establish that Uranga was under indictment in federal court, but there was no evidence at such hearing that the federal indictment had any connection with the alleged murder and the evidence elicited was in no way shown to be relevant on the issue of bias, interest, motive, etc. The court ruled that the indictment could not be used for impeachment. In support of such ruling, the State cites Article 38.29, Y.A.C.C.P., which provides:

“The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired. In trials of defendants under Article 36.09, it may be shown that the witness is presently charged with the same offense as the defendant at whose trial he appears as a witness.”

It has frequently been held that by virtue of this statute a witness may not be generally impeached by showing that there is an unresolved charge pending against him, Hall v. State, 402 S.W.2d 752 (Tex.Cr.App.1966); Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971); Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.1975), and that the intent of the Legislature in enacting the statute was to exclude extraneous offenses for impeachment which had not resulted in a final conviction. Ridler v. State, 375 S.W.2d 447 (Tex.Cr.App.1964).

In Scarborough v. State, 171 Tex.Cr.R. 83, 344 S.W.2d 886 (1961), and Campbell v. State, 480 S.W.2d 391 (Tex.Cr.App.1972), cert. den. 409 U.S. 1008, 93 S.Ct. 442, 34 L.Ed.2d 301, the trial court’s refusal to permit the impeachment of a witness by virtue of a pending federal indictment was held not to be error under Article 38.29, V.A.C. C.P., and its forerunner.

Appellants recognize Article 38.29, supra, but call attention to the rule (an exception to Article 38.29) that great latitude should be allowed a defendant in showing any fact (including pending charges) which would tend to establish ill feelings, bias, motive and animus upon the part of any witness testifying against him. Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978); Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1976); Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977); Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974); Blair v. State, 511 S.W.2d 277 (Tex.Cr.App.1974).

The rule above is more likely to be applied where the legal accusation against the witness arises out of the same transaction for which the defendant is on trial, Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974), but it is not always so limited. See Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977). See also Garza v. State, 532 S.W.2d 624 (Tex.Cr.App.1976).

Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975), was a murder case which was reversed because of the court’s refusal to permit the impeachment of the State’s material witness. There the court initially wrote:

“The State’s objection, that only final convictions are admissible for impeachment of a witness, was sustained. See Article 38.29, Vernon’s Ann.C.C.P. However, the offer of the testimony by appellants was based on their contention that the proof of the pending indictment was offered not for general impeachment, but to show the bias, prejudice, interest and motive of the witness in testifying as he did.”

It was held that refusal to permit the defendants to show for the purpose of establishing interest, bias and motive that the State’s material witness, who gave damaging testimony against defendants, who was similar in build to one defendant and who admitted disliking such defendant, and was, at the time of trial, under felony indictment for sodomy, was prejudicial error. The claim of bias, interest and motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of the witness’ vulnerable status as an indictee as well as other possibilities that he might be a suspect in the offense. In reaching this conclusion, the court relies upon Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

None of the above means that a defendant may demonstrate that there is a pending indictment or other charges against the State’s witness and without more have the same introduced merely upon a claim of bias, etc. In Mutseher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974), this court wrote:

“The indictments themselves do not show bias, but only serve as a circumstance from which bias can be inferred. The question then becomes whether in addition to the indictments there are other surrounding circumstances from which bias can reasonably and palpably be inferred. We have concluded that there are not. . . .”

In Smith v. State, 516 S.W.2d 415 (Tex. Cr.App.1974), the court wrote:

“In the instant case, there was no legal charge or accusation filed against the witness for the events of July, 1973 (disappearance of money at his place of employment). There was no evidence that this occurrence had any connection with the alleged robbery in January, six months earlier, and the rejected evidence was in no way shown to be relevant on the issue of motive or self-interest. See Huffman v. State, Tex.Cr.App., 479 S.W.2d 62, 67. . . . ”

In Garza v. State, 532 S.W.2d 624 (Tex.Cr.App.1976), the defendant was convicted of murder. On appeal he contended that he was not permitted to discredit and show the interest, bias, motive of the only known eyewitness to the offense, Luis Hernandez, by showing his arrest record and a pending indictment.

In Garza this court wrote:

“We also observe that even if defense counsel had not abandoned his attempt to gain admission of this evidence the record in this case is more like that in Luna v. Beto, 395 F.2d 35 (5th Cir. en banc 1968) and is unlike those in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Evans v. State and Meyer v. State 519 S.W.2d 868 (Tex.Cr.App.1975). There is only proof that an indictment was pending; there was no attempt made to show that the pending indictment was being used to force the witness’ testimony or that he expected more favorable treatment in his pending case because of his testimony in this case. Luna v. Beto, supra (footnote # 5).” See also Rodriguez v. State, 399 S.W.2d 818 (Tex.Cr.App.1966).

In the instant case we do not find that appellants urged the trial court to allow them to introduce the indictment to show bias, prejudice, interest, etc., as now urged on appeal. They requested it be admitted to assist their defensive theory that the State’s witness, Uranga, had arranged for Tirado’s death and to show that after the federal indictment was served on him he had denied several times to defense counsel who talked to him at the police station that he had been so charged. Not having informed the court the introduction of the indictment was to show bias, interest, prejudice, etc., no error is shown. See and cf. Luna v. Beto, 395 F.2d 35 (5th Cir. en banc 1968).

We do find that in their argument to the court appellants’ counsel in passing did cite to the court Davis v. Alaska, supra, and Evans v. State, supra, but at no time did they explain holdings, or make it clear to the court the contention now urged on appeal. Even if it can be argued this was enough to alert the court, we conclude the appellants showed only the existence of the federal indictment, and offered no evidence to show that the indictment was being used to force the witness’ testimony or that he expected favorable treatment on the federal charge as a result of his testimony, etc., and there was no showing the indictment was connected with the alleged murder and no showing that it was relevant to the issue of bias, etc. Appellants’ contention is overruled.

Appellants urge the trial court erred in failing to sustain their timely objection to what they contend were inflammatory and prejudicial photographs. One exhibit taken at the scene of the alleged offense shows the deceased with bloody wounds on the right side of the face and a blood-soaked shirt. The other photographs taken prior to the autopsy showed various wounds on the body of the deceased which were shown to have been inflicted by pistol shots and a shotgun blast. These photographs were admitted into evidence following a verbal description of the body of the deceased. Though the photographs are gruesome, they are competent, material, relevant to the issues of identification of the deceased and the cause of death, and admissible the same as a verbal description of the body of the victim. Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972); Whitmore v. State, 570 S.W.2d 889 (Tex.Cr.App.1976). They were not taken after an autopsy. See Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.1973); Kalinec v. State, 500 S.W.2d 146 (Tex.Cr.App.1973). The ground of error is overruled.

Appellants also contend the court denied them the effective assistance of counsel by overruling their motion for continuance urged prior to the penalty stage of the trial. The record reflects that on Friday, October 29, 1976, the lead counsel for the appellants, Percy Foreman, after a discussion with the trial judge, left Edinburg to return to Houston. Later that afternoon, the jury returned its guilty verdict. Co-counsel for appellants filed a motion the next morning (Saturday) to postpone for forty-eight hours the penalty stage of the trial to give the lead defense counsel time to return. Two of the three counsel who represented appellants at the penalty stage of the trial had assisted in the guilt stage of the trial and were familiar with appellants’ cases. We cannot agree, under the circumstances, that appellants were denied effective assistance of counsel. Martin v. State, 401 S.W.2d 831 (Tex.Cr.App.1966); Taylor v. State, 507 S.W.2d 563 (Tex.Cr.App.1974); Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976), cert. den. 429 U.S. 1099, 97 S.Ct. 1120, 51 L.Ed.2d 547 (1977).

Next, appellants urge the court erred in failing to grant their motion for new trial based on allegations that the jury received other evidence prejudicial to them. Appellants contend that this evidence came from certain jurors and concerned statements the appellants were involved with drugs and narcotic trafficking. At the hearing on the motion for new trial, these allegations were supported by the testimony of some jurors called by the appellants, but were sharply contradicted and denied by the jurors called by the State and were even contradicted in part by other jurors called by the appellants. We note that drugs and narcotic trafficking were injected into the evidence at trial by appellant’s counsel. In any event, it is well established that issues of fact as to jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge, and where there is conflicting evidence, there is no abuse of discretion where the motion for new trial is overruled. McCartney v. State, 542 S.W.2d 156, 162 (Tex.Cr.App.1976), and cases there cited. See also McIlveen v. State, 559 S.W.2d 815, 818 (Tex.Cr.App.1978); Stephenson v. State, 571 S.W.2d 174, 176 (Tex.Cr.App.1978); Beck v. State, 573 S.W.2d 786, 791 (Tex.Cr.App.1978).

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

Appellants contend the court erred in communicating with the jury in their absence and the absence of their counsel and in not informing them of the receipt of a note from the jury. At the hearing on the motion for new trial, juror Idalena Gonzalez testified that while deliberating at the guilt stage of the trial the jurors voted 10 to 2 for a guilty verdict and she was one of the two who voted “not guilty.” At this point she explained that some of the jurors began shouting and making remarks to her and that she felt harassed and upset and that through the foreman she sent a note to the trial judge. The note, later filed and made a part of the record at the hearing on the new trial motion, read:

“Judge Smith
“After we, the jurors come to give the decision, I would like to see you in close chambers.
“/s/ Ida Gonzalez
“/s/ Arturo Y. Munoz
Foreman.”

A woman bailiff testified she delivered the note to the trial judge and delivered the judge’s oral reply that he would see the juror after the trial was over to Mrs. Gonzalez, who acknowledged she received such reply. At the hearing, the judge stated he had received the note while counsel was away “somewhere” and that he informed the bailiff he would see the juror when the trial had been concluded, but that he had not instructed the bailiff to communicate that to the juror.

Article 36.27, V.A.C.C.P., prescribes the procedure for communication between court and jury, and requires the same to be in writing, and the answer delivered in open court in the presence of the defendant and his counsel after it had been first presented to counsel for objections, etc. The giving of additional instructions on the law without complying with the statute constitutes reversible error. Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967). See also Alba v. State, 492 S.W.2d 555 (Tex.Cr.App.1973). It has been held that, however, communication between court and jury which does not amount to additional instructions, although not in compliance with statute, does not constitute reversible error. Allaben v. State, supra, and cases there cited.

In the instant case the court did not intend his oral statement to be communicated to the one juror, but it was so communicated by the bailiff. Though not in compliance with the statute, the communication clearly was not an additional instruction and does not present reversible error under the circumstances, although the trial judge should have made counsel aware of the receipt of the note. The ground of error is overruled.

Lastly, appellant Francisco Moreno contends that the trial court, over objection, denied him due process by consolidating his trial for murder before a jury with a hearing on the State’s motion to revoke probation (granted after conviction for possession of marihuana) before the court. After the jury had been selected in the murder case, the defendant entered a plea of “not true” to the revocation motion based on the alleged murder offense. After the evidence was heard at the murder trial at the guilt stage of the trial and before the jury returned its verdict as to guilt, the court revoked probation.

Appellant Francisco Moreno argues that there are unique characteristics that distinguish a criminal trial from a revocation of probation hearing and that the same should not have been consolidated even though the jury apparently knew nothing of the revocation motion. The State cites a number of cases where the trial court took “judicial notice” in a separate revocation hearing of testimony produced in a previous criminal trial where the judge presided and where the defendant was represented by the same counsel at both the trial and the subsequent revocation hearing. These are not in point.

In Hilton v. State, 443 S.W.2d 844 (Tex.Cr.App.1969), the penalty stage of a trial for passing a forged instrument before the court following a guilty verdict by the jury was combined with the hearing on a motion to revoke probation. The majority does not discuss the procedure utilized, although the dissent noted the procedure was not recommended but observed there was no objection to the consolidation of the hearings. In the instant case, there was an objection. Despite the objection, and while the procedure is not recommended, appellant has failed to point out how he was harmed or prejudiced by the procedure used. We cannot conclude that the appellant Francisco Moreno has been deprived of due process.

The judgments are affirmed.

ROBERTS, J., concurs.

      . The question presented as to their disqualification is close, very close.

      . The appellants assert the offense was importation of marihuana.

      . Article 38.29, V.A.C.C.P., which provides that a witness may be impeached only by proof of prior final conviction, did not change, alter or vary rule that proof of prior conviction for crime would be received for impeaching purposes only when offense was a felony one involving moral turpitude, and even then, it must not be too remote. Neill v. State, 158 Tex.Cr.R. 551, 258 S.W.2d 328 (1953); Gaines v. State, 481 S.W.2d 835 (Tex.Cr.App.1972).

      . In Smith this court observed:
      “Although the mere fact of an arrest or indictment of a witness is not normally admissible for impeachment purposes to show bias, motive, ill feelings or animus, where the evidence of an arrest or legal accusation arises out of the same transaction for which the defendant is on trial, it may be admissible as such impeachment of the witness. United States v. Musgrave, 483 F.2d 327, 338 (5th Cir. 1973).”
      See also Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978).

      . The sodomy indictment against the witness was in the same court as the indictments for murder, and interestingly enough, each time the murder cases were passed the sodomy indictment against the witness was also passed.

      . In Davis the United States Supreme Court held that refusal to allow state burglary defendant to cross-examine key prosecution witness to show his probation status following an adjudication of juvenile delinquency denied defendant his constitutional right to confront witnesses, notwithstanding state policy of protecting anonymity of juvenile offenders.

      .Uranga testified that he denied to defense counsel at an interview at the jail that he had not been charged in federal court because: (1) he was not guilty of the offense charged, and (2) he knew such defense counsel was not there in his interest.

      . The record reflects that Uranga did not learn of the existence of the federal indictment until seven or eight days after he was held by the State as a material witness. At such time he had already given a sworn statement to the police outlining his version concerning how the offense was committed which was in substantial conformity with his later testimony at trial.