author: ONION, Presiding Judge. ROBERTS, Judge DOUGLAS, Judge ODOM, Judge. MORRISON, Judge DOUGLAS, Judge

text:
    William DAY, Appellant, v. The STATE of Texas, Appellee.
    No. 49859.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    On Rehearing Feb. 4, 1976.

      B. Hal Miner, Amarillo, for appellant.
    Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty. and David S. MeAngus, Asst. State’s Atty., Austin, for the State.

      . Though no culpable mental state is mentioned in the language of Section 30.02, V.T. C.A., Penal Code, for this type of burglary, subsections (b) and (c) of Section 6.02, supra, clearly require proof of either intent, knowledge, or recklessness unless the definition of the offense plainly dispenses with any mental element. Since by its definition (see Section 6.03(c), supra) recklessness applies only to situations where the actor “is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur,” it would seem to be inapplicable as proof of the culpable mental state required for this type of burglary. This conclusion is reasonable since it is difficult to imagine a situation where a person would recklessly enter a building or habitation and commit or attempt to commit a felony or theft. It is much more reasonable to conclude that a person knowingly or intentionally enters a building or habitation wherein he commits or attempts to commit a felony or theft. Therefore, we hold that to constitute the offense of burglary by committing a felony or theft, the proof must show that the entry was either knowingly or intentionally done.

   OPINION

ONION, Presiding Judge.

The appellant brings this appeal from a conviction for the offense of burglary with intent to commit theft. Following the return of the jury’s verdict of guilty, the court assessed punishment at seven (7) years’ confinement in the Texas Department of Corrections.

The appellant contends that the evidence at trial raised the issue of criminal trespass and argues that such offense is a lesser included offense of burglary. He therefore urges that the trial court committed reversible error in failing to submit to the jury one of his two requested instructions concerning the issue of criminal trespass.

The evidence at trial shows that at approximately 3 a. m. on the morning of March 13,1974, two Amarillo city policemen on routine patrol noticed that a front window of the Underwood’s Bar-B-Q located in Amarillo had been broken out. After additional police units arrived, two officers broke out the remaining glass of the broken window and entered the restaurant. They found a large rock located inside the restaurant near the broken window. A cigarette machine was overturned in the dining room, its glass front broken, and its “rods” and “bars” torn out. Numerous packs of cigarettes were scattered on the floor beside the cigarette machine. Several items, including an electric razor, an adding machine, an ashtray and four screwdrivers were located in a cardboard box in the dining room in the immediate vicinity of the cigarette machine. The door to the manager’s office was open and a metal vent on the door appeared to have been kicked in or pried loose. The police apprehended the appellant near a set of swinging doors between the dining room and kitchen, and recovered from him a letter opener found during a search of his person at the police station.

The restaurant manager, Mr. Collie, testified that he had care, custody, and control of the restaurant. He stated that he closed the restaurant to the public at approximately 9 p. m. on March 12, 1974, and had not given anyone permission to break the front window and enter the store. Mr. Collie testified that the letter opener found on the appellant’s person as well as the electric razor, adding machine, ashtray, and four screwdrivers found in the cardboard box in the dining room were all located in his office when he had left work on March 12.

The appellant, testifying in his own behalf, stated that at approximately 3 a. m. on the date in question he was proceeding past Underwood’s on the way home from a girlfriend’s house. He stated that he observed a man come out of the restaurant and then noticed that a window had been broken out. The appellant testified that he entered the restaurant through the broken window intending to telephone the police to report the broken window. He stated that the cigarette machine was already overturned and the cigarette packs already scattered on the floor at the time of his entry. The appellant testified that he stepped on the letter opener and then put it in his pocket as a “reflex action.” By his testimony, he was unable to find a light switch or telephone and was apprehended by the police approximately two minutes after entry.

The trial court instructed the jury on the law of burglary, but refused to submit either one of the appellant’s two requested instructions on the law of criminal trespass.

Our initial inquiry concerns whether criminal trespass is, as the appellant contends, a lesser included offense of burglary. Article 37.09, Vernon’s Ann.C. C.P., provides:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

The offense of burglary, contained in Section 30.02, V.T.C.A., Penal Code, is as follows:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony of theft; or
“(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
“(3) enters a building or habitation and commits or attempts to commit a felony or theft.
“(b) For purposes of this section, ‘enter’ means to intrude:
“(1) any part of the body; or
“(2) any physical object connected with the body.
“(e) Except as provided in Subsection (d) of this section, an offense under this section is a felony of the second degree.
“(d) An offense under this section is a felony of the first degree if:
“(1) the premises are a habitation; or
“(2) any party to the offense is armed with explosives or a deadly weapon; or
“(3) any party to the offense injures or attempts to injure anyone in effecting entry or while in the building or in immediate flight from the building.”

From examination of the statute, it is obvious that burglary can be committed in either one of three distinct ways: (1) by entering a habitation or building not then open to the public without the effective consent of the owner with the intent to commit a felony or theft; or (2) by remaining concealed in a habitation or building without the effective consent of the owner with the intent to commit a felony or theft; or (3) by entering a habitation or building without the effective consent of the owner and committing or attempting to commit a felony or theft. The elements of the three types of burglary are set out following:

Burglary with intent to commit a felony or theft
(1) a person
(2) without the effective consent of the owner
(3) enters a habitation or building not then open to the public
(4) with the intent to commit a felony or theft.
Burglary by remaining concealed
(1) a person
(2) without the effective consent of the owner
(3) remains concealed in a habitation or building
(4) with the intent to commit a felony or theft.
Burglary by committing a felony or theft
(1) a person
(2) without the effective consent of the owner
(3) enters a habitation or building
(4) knowingly or intentionally, and
(5) commits or attempts to commit a felony or theft.

The offense of criminal trespass, contained in Section 30.05, V.T.C.A., Penal Code, is as follows:

“(a) A person commits an offense if he enters or remains on property or in a building of another without effective consent and he:
“(1) had notice that the entry was forbidden; or
“(2) received notice to depart but failed to do so.
“(b) For purposes of this section:
“(1) ‘entry’ means the intrusion of the entire body; and
“(2) ‘notice’ means:
“(A) oral or written communication by the owner or someone with apparent authority to act for the owner;
“(B) fencing or other enclosure obviously designed to exclude intruders; or
“(C) signs posted to be reasonably likely to come to the attention of intruders.
“(c) An offense under this section is a Class C misdemeanor unless it is committed in a habitation, in which event it is a Class A misdemeanor.”

The offense of criminal trespass therefore consists of the following elements:

(1) a person
(2) without effective consent
(3) enters or remains on the property or in a building of another
(4) knowingly or intentionally or recklessly
(5) when he had notice that entry was forbidden or received notice to depart but failed to do so.

As can be seen, the first three elements of each of the three types of burglary and criminal trespass are virtually identical. The fourth main element of burglary, either the specific intent to commit or the actual commission or attempted commission of a felony or theft, depending on the type of burglary involved, is absent from the offense of criminal trespass.

The State argues that criminal trespass contains an additional element, “notice,” which is not contained in the offense of burglary and therefore the requirement of Article 37.09(1), Vernon’s Ann.C.C.P., would not be satisfied since the offense of criminal trespass would not be established by proof of the same or less than all of the facts required to prove burglary. It appears, however, that the State has failed to consider the obvious intent of the Legislature in including the “notice” requirement in the criminal trespass statute. It is apparent that the requirement of “notice” was intended to prevent an innocent trespass upon the “property” of another from incurring criminal liability. For example, where one innocently trespasses upon the unfenced and unposted land of another, no criminal offense would be committed. However, in a situation such as that presented in the present case where the proof shows that the accused entered a building not then open to the public, the “notice” requirement would be satisfied by proof of entry into the building since “notice” can be established by a “fencing or other enclosure obviously designed to exclude intruders.” See Section 30.05(b)(2)(B), V.T.C.A., Penal Code. Therefore, the elements of criminal trespass, including “notice,” could be established by proof of the same facts necessary to prove the offense of burglary. The proof of additional facts would not be necessary, and the requirement of Article 37.-09(1), Vernon’s Ann.C.C.P., would be satisfied.

Therefore, we hold that the offense of criminal trespass is a lesser included offense of all three types of burglary.

Our next inquiry concerns whether there was sufficient evidence at trial to have required the court to submit to the jury the issue of criminal trespass. It is well settled that if facts adduced at trial raise an issue and a charge on such issue is properly requested, then a charge on the issue must be given. See Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975); Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975); Sargent v. State, 518 S.W.2d 807 (Tex.Cr.App.1975); Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974); Carter v. State, 515 S.W.2d 668 (Tex.Cr.App.1974). It is further well settled that a defendant’s testimony alone is sufficient to raise an issue. Sargent v. State, supra; Ray v. State, supra; Carter v. State, supra.

In the present case, the testimony of the appellant that he entered the restaurant through a broken window in order to telephone the police raised some evidence of a lack of a specific intention on his part to commit a felony or theft. As discussed previously in this opinion, the fact that the appellant entered a building not then open to the public was sufficient to establish the “notice” requirement. The testimony of the restaurant manager during cross-examination furnished further proof of “notice” that entry into the restaurant was forbidden:

“Q. All right. Now, Mr. Collie, when the doors are locked at Underwood’s, there is no other way to get in, is there?
“A. Except break through a glass.
“Q. Except illegally, right?
“A. Right.
“Q. The doors are locked and all the windows are closed and there is no other way to get in there legally?
“A. No sir.
“Q. Would you call that an enclosure obviously designed to exclude intruders?
“A. Well, sir, that’s why I lock the doors. You mean to keep them out?
“Q. Obviously it should exclude intruders, correct?
“A. Yes sir.
“Q. People should know they are not supposed to get in there, is that true?
“A. Yes sir.
“Q. A reasonable man would be on notice that he’s not to enter that building when those doors are locked?
“A. That’s my judgment.”

Therefore, the facts in the evidence at trial were sufficient to raise the issue of criminal trespass, and the failure of the court to submit to the jury a requested charge on such constitutes reversible error.

The dissent relies heavily upon McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), an opinion authored for the court by this writer. In that prosecution for assault with intent to rape, the defendant complained on appeal of the trial court’s failure to charge on aggravated assault. First, the McBrayer opinion noted that the evidence did not raise the issue of aggravated assault, and citing 4 Branch’s Ann.P.C., Sec. 1889, p. 219, held that where the case is either assault with intent to rape or that the defendant is not guilty of any offense, it is not error to fail or refuse to charge on aggravated assault. Though not necessary to the disposition of the ground of error involved, the McBrayer opinion states:

“Still further, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. See Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).”

The dissent in the instant case seizes upon this paragraph, but completely misreads and misinterprets it. The dissent reads it as holding that it is not error to fail to charge on a lesser included offense unless the evidence shows that the only offense of which the accused could be guilty is the lesser included offense. This is not the law, should not be the law, and has never been the law. Surely it cannot be contended that if there is evidence raising the issue of a lesser included offense an accused would not be entitled to a charge on the same merely because there is also other evidence which supports proof of the greater offense charged or some other offense.

In Daywood, this court in 1952, speaking through Judge Morrison, wrote:

“. . .At this juncture, it will be noted that, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged”. (Emphasis supplied)

The Daywood opinion then observed that there was no evidence in the record to raise the issue of the lesser included offense of aggravated assault. In cases which have cited Daywood regarding this proposition of law, it appears from an examination of the opinions that in each case there was no evidence raising the issue of a lesser included offense. See Hale v. State, 164 Tex.Cr. 482, 300 S.W.2d 75 (Tex.Cr.App.1957); Bush v. State, 358 S.W.2d 384 (Tex.Cr.App.1962); Lewis v. State, 479 S.W.2d 74, 75 (Tex.Cr.App.1972); McBrayer v. State, supra.

It is clear then that the dissent cites McBrayer for the wrong proposition and goes further and infers that if the proof reflects some offense other than charged in the indictment, then no jury instruction on the lesser included offense of the offense charged needs to be given regardless of the evidence raising the same. This is strange logic indeed.

The judgment is reversed and the cause is remanded.

ROBERTS, Judge

(concurring).

I agree with the Court that criminal trespass is a lesser included offense of burglary under the new Penal Code. The main element distinguishing criminal trespass from the burglary alleged and proven here (under Art. 30.02(a)(1), V.T.C.A., Penal Code) is the intent to commit theft. Since this element was not conclusively established, the issue of criminal trespass was raised.

I add this brief concurrence only for the purpose of identifying the area of my disagreement with the dissenters. It is true, as they contend, that the element of theft was conclusively established. Since theft distinguishes burglary under Art. 30.02(a)(3) from criminal trespass, no issue of criminal trespass would be raised if this were a prosecution under 30.02(a)(3).

But the commission of a theft was not pleaded. Appellant was not on notice that he would have to defend against such an allegation. His entire defense was directed at the “intent to commit theft” allegation in the indictment. Under these circumstances, it would be patently unfair to deny him the opportunity of defending against the charge of which the dissenters find him guilty.

Nor is it any answer to say that the intent to commit theft could be presumed from the proof of the theft, since “intent to commit theft” was an issue at trial. Nor is it appropriate to say that the jury resolved the issue of “intent to commit theft” against the appellant. These statements would provide good post hoc rationalizations for the result, but they would miss appellant’s primary contention: that the jury should have been given an opportunity to find appellant guilty of an offense which did not involve “intent to commit theft.”

For the foregoing reasons, I cannot agree with the dissenters’ position. I concur in the opinion of the Court.

DOUGLAS, Judge

(dissenting).

Appellant testified and admitted that he entered the building without consent and committed theft. The trial court instructed the jury on the law of burglary but refused to submit either one of the appellant’s two requested instructions on the law of criminal trespass. The offense of burglary, contained in Section 30.02, Y.T.C.A., Penal Code, provides, in part, as follows:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
“(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
“(3) enters a building or habitation and commits or attempts to commit a felony or theft.”

The offense of criminal trespass, contained in Section 30.05, V.T.C.A., Penal Code, is as follows:

“(a) A person commits an offense if he enters or remains on property or in a building of another without effective consent and he:
“(1) had notice that the entry was forbidden; or
“(2) received notice to depart but failed to do so.
“(b) For purposes of this section:
“(a) ‘entry’ means the intrusion of the entire body; and “(2) ‘notice’ means:
“(A) oral or written communication by the owner or someone with apparent authority to act for the owner;
“(B) fencing or other enclosure obviously designed to exclude intruders; or
“(C) signs posted to be reasonably likely to come to the attention of intruders.
“(c) An offense under this section is a Class C misdemeanor unless it is committed in a habitation, in which event it is a Class A misdemeanor.”

In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court held that

. .a charge on the lesser [included offense] is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense.”

The McBrayer opinion takes the statement from 4 Branch’s Ann.P.C.2d, Section 1889, page 219. It is or was a good rule.

Appellant by his own testimony shows him to be guilty of burglary under Section 30.02(a)(3), supra. He entered the building without the consent of the owner and while there committed theft by taking the letter opener, putting it in his pocket and trying to sell or give it away. His testimony did not show that he was guilty only of a lesser included offense. It is not necessary to decide if criminal trespass is a lesser included offense of the offense of burglary under the facts of this case.

The court did not err in refusing to give the requested instructions.

Assuming that the charge should have been given, if there was ever harmless error in a court’s charge, it is in this case. The Legislature no doubt had instances such as this in mind when it passed the predecessors of and Article 36.19, Y.A.C.C.P., which provides that a judgment shall not be reversed for an error in the court’s charge “unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . .”

In this ease the appellant testified to an unbelievable and fantastic story. He admitted on direct examination that he had been convicted for the offense of grand larceny in Oklahoma and had been out on parole for only three months prior to being caught in the burglarized building at approximately three o’clock in the morning. He had in his pocket a Japanese knife or letter opener that had been taken from the desk of the manager of the cafeteria. He attempted to sell the knife to one of the officers. His explanation was that he entered the building at three o’clock in the morning to call the police after he had seen a man running from the building. His testimony was that he entered the building to make the call because he was walking and was some five or six blocks from his motel and he did not want to wait that long. This testimony was from a man who was on parole for a crime involving theft.

The majority reverses because the court did not instruct the jury in effect that if appellant entered the building with no intent to steal they could find him guilty of the misdemeanor offense of criminal trespass. He admitted stealing the knife “by reflex action” and trying to sell it.

The majority should apply (or at least discuss) the mandate of the Legislature and not reverse for a harmless error in the court’s charge. Would the jury have reached a different result had the charge been given? This is the question. The explanation by appellant is unbelievable. It is submitted that no reasonable jury would have reached a different result had the requested charge been given.

Would the majority reverse if the appellant had testified that he went through the window in a landing from a space craft? Probably so, based on its opinion in this case, because there would be evidence raising the issue.

See the dissenting opinions in Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1975). The charge was assault with intent to murder a police officer. The officer testified that Thompson shot at him four times. Thompson testified that his gun accidentally discharged four times. That case was reversed because the trial court did not charge on aggravated assault.

The judgment should be affirmed.

MORRISON, J., joins in this dissent.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

On original submission appellant’s conviction was reversed for failure of the trial court to submit a charge on the lesser included offense of criminal trespass. We held that the evidence raised the issue and that under Art. 37.09(1), Y.A.C.C.P., and the facts of this case, criminal trespass was a lesser included offense to the burglary charged.

I.

On motion for rehearing the State contends that the evidence does not raise the issue. On this point we remain convinced of the soundness of our opinion on original submission. We perceive the thrust of the State’s argument to be that appellant’s testimony at best raised the issue of Public Duty (Y.T.C.A. Penal Code Sec. 9.21) or Necessity (V.T.C.A. Penal Code Seci 9.22). While it may be true that appellant, upon request, also would have been entitled to a charge on the defensive theories stated, that would not alter the fact, as found on original submission, that the lesser included offense of criminal trespass was also raised by the evidence.

II.

The State also contends in its motion for rehearing that the requested charge was properly denied because the indictment would not support a conviction for criminal trespass.

The State cites numerous authorities for the proposition that an indictment will not support conviction for what otherwise would be a lesser included offense unless the indictment, pleads all of the necessary allegations to charge such other offense. We first observe that the authorities relied upon were decided prior to the amendments of Arts. 37.08 and 37.09, V.A.C.C.P., that were conforming amendments contained in the Penal Code Act (Acts 1973, 63rd Leg., ch. 399, Sec. 2).

We are aware of no statutory provision prior to the 1973 amendments to the Code of Criminal Procedure governing lesser included offenses as that term is now defined in Art. 37.09, supra. Articles 37.08 and 37.09, supra, prior to amendment provided for offenses with different degrees. The scheme envisioned in those two articles dates from the earliest days of codified criminal procedure in this State.

From research it appears to us that upon the issue now raised by the State, the common law governed at the time Texas was annexed to the United States. In 1851 the Supreme Court of Texas appears to have been of the same opinion when it decided Givens v. State, 6 Tex. 344, in which the defendant urged, “The court erred in rendering a judgment on the verdict against the appellant for a common assault, when he was indicted for an assault with an intent to murder.” In disposing of that contention the Court wrote:

“The second ground has never before been presented to this court. It seems, however, to be the common practice in most of the States on a verdict finding a common assault or assault and battery, upon a count for an assault with intent to murder; to hold such finding good and valid. (Shart.Am.Crim.Law, 97; 5 Ohio R. 242; 7 Port.R., 495) It seems to be a well-settled rule that when an accusation of an offense includes an inferior one the jury may acquit the accused of the more atrocious and convict him of the inferior offense. (State v. Cowell, 4 Ire.R., 231.) And in the State v. Gafney (4 Rice R., 431) the Court of Appeals of South Carolina held that the indictment under the statute for the murder of a slave would sustain a verdict for the inferior offense of ‘killing in sudden heat and passion.’ This doctrine appears to be well founded on the principle that the greater offense includes the less and the less is merged in the greater. . . .”

Subsequent to the 1851 decision in Givens v. State, supra, the Legislature took what appears to be the first step to codify a rule governing prosecutions for offenses consisting of degrees.

Article 630 of the 1856 Code of Criminal Procedure (hereinafter O.C.) was the origin of Art. 37.08, V.A.C.C.P. (1965) and provided:

“Where a prosecution is for an offense consisting of different degrees, the Jury may find the defendant not guilty of the higher degree, (naming it,) but guilty of any degree inferior to that charged in the indictment.”

Article 631 (O.C.) was the origin of Article 37.09, V.A.C.C.P. (1965), and provided:

“The following offences include different degrees:
1. Murder, which includes all the lesser degrees of culpable homicide.
2. Maiming, which includes disfiguring, wounding, aggravated assaults and batteries, and simple assaults and batteries.
3. Arson, which includes every malicious burning made penal by law.
4. Burglary, which includes every species of house-breaking, and of theft from a house.
5. Theft, which includes all unlawful acquisitions of personal property, punishable by the penal code.
6. Every offence against the person, includes within it, assaults with intent to commit said offence, when such assault is a violation of the penal law.
7. Every offence includes within it an attempt to commit the offence, when such attempt is made penal by law.”

Except for changes in the enumerated offenses of Art. 631 (O.C.) and minor changes in Art. 630 (O.C.), these two articles preserved the same statutory scheme from their original enactment in the 1850’s up to the time of the fundamental changes enacted in 1973. Through that history of those articles there have arisen many occasions for the successive high courts of this State to apply and interpret those two articles. Regardless of what rules would have governed had the statutes on degrees of offenses never been enacted, two principles have emerged from the jurisprudential history of the two statutes.

First, there are two types of cases in which conviction may be had for an offense other than the primary offense charged in the indictment. This was recognized in the opinion by Judge Woodley writing for the Court in Tomlin v. State, 155 Tex.Cr.R. 207, 233 S.W.2d 303, wherein it is stated:

“Art. 694, C.C.P. [Art. 630, O.C.; Art. 37.09, V.A.C.C.P. (1965)], authorizes conviction of a lower offense where the prosecution is for an offense which includes it.
“Art. 695, C.C.P. [Art. 631, O.C.; Art. 37.09, V.A.C.C.P. (1965)], sets out certain offenses and classes of offenses which are declared to include different degrees. Robbery is not one of the offenses enumerated.
“The rule appears to be that where the offense charged is not within the provisions of said article 695, C.C.P., in order to warrant a conviction for a lesser offense than that charged in an indictment, it is necessary that every constituent element of the lesser offense be alleged in the indictment, and that there be no re-pugnancy between the constituent elements of the lesser offense and those of the offense charged.”

The rule was again stated in Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479, wherein Judge Morrison, writing for the Court, stated:

“Article 694, C.C.P., provides:
“ ‘In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense, but guilty of any lower offense included.’
“Article 695, C.C.P., enumerates offenses which include different degrees.
“We have held Article 695 not to be exclusive if every constituent element of the lesser offense be alleged in the indictment and if there is no repugnancy between the constituent elements of the lesser offense and those of the offense charged. Tomlin v. State, Tex.Cr.App., 155 Tex.Cr.R. 207, 233 S.W.2d 303.”

It may also be found stated in Van Arsdale v. State, 149 Tex.Cr.App. 639, 198 S.W.2d 270.

This principle recognizes that if the “lesser offense” considered is not by statute a degree of the primary offense charged, no conviction may be had for that lesser offense unless it is itself sufficiently pleaded in the indictment. The principle also recognizes, however, that if the “lesser offense” considered is a degree of the primary offense charged, the indictment is not required to allege all elements of the lower degree. Although Tomlin and Daywood, supra, do not state the rule for offenses with degrees (it not being there applicable), such rule has been recognized and applied in those cases coming within it. Cases standing for the proposition that an indictment charging an offense with degrees includes lesser degrees even where the elements of the lesser degrees are not alleged include Brown v. State, 376 S.W.2d 577; Meaux v. State, 160 Tex.Cr.R. 121, 267 S.W.2d 833; Wallace v. State, 145 Tex.Cr.R. 625, 170 S.W.2d 762, 766; Short v. State, 119 Tex.Cr.R. 34, 45 S.W.2d 587; Guerra v. State, 105 Tex.Cr.R. 410, 288 S.W. 1084; Hand v. State, 88 Tex.Cr.R. 422, 227 S.W. 194; Cirul v. State, 83 Tex.Cr.R. 8, 200 S.W. 1088, and Bell v. State, 70 Tex.Cr.R. 466, 156 S.W. 1194. Numerous other cases to the same effect are cited in the cases listed.

The second principle that has found expression in the court opinions considering the statutes under discussion is reflected in the recognition by the judiciary that the mere fact that the Legislature by statute provides that one offense is but another degree of the offense charged does not make it true. To dispense with the need for pleading all the constituent elements of the lesser offense, which applies in other cases (e. g., Tomlin, Daywood, both supra), the relationship between the offense charged and the other offense not only must be within the terms of the statute specifying offenses with degrees, but also that relationship between the two offenses must be such that the other offense is in fact not repugnant to the offense charged. To state that the Legislature by statute may authorize conviction for any offense so designated upon trial for some other offense regardless of the relationship between the two is to state an obvious absurdity violative of basic principles of due process.

The application of this principle is demonstrated in comparing two early cases decided by the Texas Court of Appeals. Huntsman v. State, 12 Tex.App. 619 (Austin Term, 1882); Peterson v. State, 12 Tex.App. 650 (Austin Term, 1882). These two cases, decided at the same term of court, considered- then Article 714 of the Code of Criminal Procedure (predecessor to Art. 37.-09, V.A.C.C.P. (1965)). Huntsman held unconstitutional that portion of the article purporting to designate embezzlement as an offense included in theft, the offense charged, and reversed the embezzlement conviction. Peterson, on the other hand, rejected, upon the basis of that article, the defendant’s contention that conviction for assault to murder could not stand upon an indictment charging murder. The opinion in Peterson observed that defendant’s argument “is in effect a denial of the axiom that the greater includes the lesser. In murder there is always an assault to commit murder. When an indictment charges murder, it necessarily embraces an assault to commit murder.” While most of the lengthy opinion in Huntsman is addressed to the constitutional rights of the accused and to the function of the indictment, a necessary premise of the court in addressing the issue of whether the indictment charged embezzlement was that theft, properly pleaded in the indictment, and embezzlement, for which the defendant was convicted, did not possess that relationship found in Peterson to exist between murder and assault to murder.

Later, in Brown v. State, 15 Tex.App. 581 (1884), the Court considered whether an indictment for theft would authorize conviction for receiving stolen property. The Court overruled prior decisions to the contrary, and upon application of the principles relied upon in Huntsman v. State, supra, held that an indictment for theft would not support such a conviction despite the statutory language purporting to make it a degree of the offense of theft. Even the dissent in Brown acknowledged: “As to . theft and embezzlement, the distinctions made by our statutes are so marked that the offenses cannot be reconciled or harmoniously assimilated.” 15 Tex.App. at 585.

Eventually the same principle led to the overruling of numerous decisions on appeals from convictions for driving livestock from its accustomed range. In Long v. State, 39 Tex.Cr.R. 537, 46 S.W. 821 (1898), it was held that a conviction for that offense could not be had upon an indictment charging theft. Cf. Campbell v. State, 22 Tex.App. 262, 2 S.W. 825; Foster v. State, 21 Tex.App. 80, 17 S.W. 548; Smith v. State, 17 S.W. 560; Smith v. State, supra, at 561 (dissenting opinion by Judge Hurt).

In dictum in a case involving other issues, encyclopedic authority was quoted with approval to the following effect:

“Where a particular offense, such as homicide, is divided into degrees which are defined by statute, the indictment may follow the general form without specifying the elements which fix the particular degree, and still fulfill the requirement of informing defendant of the nature and cause of the accusation. But the Legislature cannot provide that if, on the trial of an indictment for a specific offense, it is found that the offense has not been committed, but that another has, a conviction may be had for the offense proved, or that a person indicted for an offense consisting of one state of facts may be tried and convicted under that indictment of an offense consisting of a different state of facts.” Slack v. State, 61 Tex.Cr.R. 372, 136 S.W. 1073, 1075.

The principles and rules applied in the cases cited and discussed above now may be summarized. Prior to the enactment of a new statutory scheme of lesser included offenses in 1973, there were two types of “lesser offenses” subject to different rules regarding the power of the court to enter a judgment of conviction for the lesser offense upon the indictment charging the greater offense. If the greater offense by statute consisted of degrees, the elements of the lesser degree did not have to be alleged in the indictment. If the lesser offense was not made a degree of the greater by statute, the elements of the lesser had to be alleged in the indictment before a conviction for that lesser could be had thereon. Furthermore, even if by statute the lesser was made a degree of the greater alleged, the validity of that statutory designation was subject to constitutional attack and, upon such attack, to judicial examination of the relationship between the two offenses.

On original submission we held that on the facts of this case criminal trespass was a lesser included offense to the burglary charged under the terms of Art. 37.09(1), Y.A.C.C.P. With respect to the State’s challenge raised against the power of the court to enter judgment for criminal trespass upon the indictment in this case, we hold that the new statutory scheme of lesser included offenses, as contrasted with the old statutory scheme of offenses with degrees, did not create such a restriction upon the jurisdiction of the trial court once properly invoked to try the offense charged, to proceed to judgment upon the lesser included offense, and in this respect the new scheme is not at variance with the old one.

There remains to be considered, before we have thoroughly disposed of the State’s challenge to the power of the court to convict appellant for criminal trespass upon the indictment for burglary, whether Arts. 37.08 and 37.09(1), supra, are constitutional insofar as by their terms they authorize such a conviction. Article 37.08 now provides:

“In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.”

Article 37.09 now provides:

“An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

The careful reader will observe that each definition in Art. 37.09 is stated with reference to “the offense charged,” and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive or reduces culpability as compared to the offense charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged. We must add, however, that whether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the ease.

The State’s motion for rehearing is overruled.

MORRISON, Judge

(concurring in part and dissenting in part on State’s Motion for Rehearing).

I agree with and congratulate my brother ODOM on the scholarly part II of his opinion.

I do not agree, however, that the evidence in this case raises the issue of criminal trespass, and therefore must vigorously dissent to part I of the opinion.

DOUGLAS, Judge

(dissenting opinion on State’s Motion for Rehearing).

In addition to the reasons set out in the dissenting opinions on original submission, appellant’s testimony does not show a criminal trespass. According to the testimony of appellant, he went into the building rightfully in the early morning hours to call officers to report a burglary. After the entry, he committed the crime of theft. No crime of criminal trespass was alleged and no such crime was proved by appellant’s testimony.

The court did not err in refusing to submit a charge on a lesser included offense.

      . Other than the “notice” requirement, there appears to be no culpable mental state required by the language of Section 30.05, V.T.C.A., Penal Code. Since its language does not plainly dispense with the requirement of proof of a mental element, subsections (b) and (c) of Section 6.02, supra, clearly require proof of either intent, knowledge, or recklessness.

      . The Plan and Powers of the Provisional Government of Texas (See, e. g., Sayles, The Constitutions of the State of Texas, 4th Ed., 1893, pp. 139 et seq.; Hartley, Digest of the Laws of Texas, 1850, pp. 16 et seq.; Oldham & White’s Digest, Laws of Texas, 1859, pp. 683 et seq.) adopted November 13, 1835, provided in Article VI thereof, in part, “Every Judge so nominated and commissioned [under Article V], shall have jurisdiction over all crimes and misdemeanors recognized and known to the common law of England. . . . ” Article VII thereof further provided in part:
      “All trials shall be by jury, and in criminal cases the proceedings shall be regulated and conducted upon the principles of the common law of England; and the penalties prescribed by said law, in case of conviction, shall be inflicted. .
      The Constitution of the Republic of Texas, adopted in 1836, provided in The Schedule thereof:
      “Section 1. That no inconvenience may arise from the adoption of this constitution, it is declared by this convention that all laws now in force in Texas, and not inconsistent with this constitution, shall remain in full force until declared void, repealed, altered, or expire by their own limitation.”
      Section 7 of the General Provisions of that Constitution of the Republic provided in part:
      “So soon as convenience will permit, there shall be a penal code formed on principles of reformation, and not of vindictive justice; and the civil and criminal laws shall be revised, digested, and arranged under different heads, .
      Article IV, Section 13, of the Constitution of the Republic provided:
      “The congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision.”
      Thereafter the Congress of the Republic provided by Act, approved December 21, 1836, for the punishment of certain crimes and misdemeanors, and in Section 54 thereof provided:
      “All offenses known to the common law of England as now understood and practiced, which are not provided for in this act, shall be punished in the same manner as known to the said common law.” 1 Gammel, Laws of Texas 1247, 1255 (1898).
      The Congress of the Republic, by an Act approved January 20, 1840, provided:
      “Sec. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, that the Common Law of England (so far as it is not inconsistent with the Constitution or the Acts of Congress now in force) shall, together with such acts be the rule of decision in this Republic, and shall continue in full force until altered or repealed by Congress.” 2 Gammel, Laws of Texas 177 (1898).
      At the time of annexation of Texas to the United States, the first Constitution of this State was drafted at convention and adopted by the people. Article XIII, Section 3 of the Constitution of 1845 provided:
      “All laws and parts of laws now in force in the Republic of Texas, which are not repugnant to the Constitution of the United States, the joint resolutions for annexing Texas to the United States, or to the provisions of this Constitution, shall continue and remain in force as the laws of this State until they expire by their own limitation, or shall be altered or repealed by the legislature thereof.”

      . By Acts of August 26, 1856, taking effect February 1, 1857, the Legislature adopted a Penal Code and a Code of Criminal Procedure, which were published in Oldham and White’s Digest of the Laws of Texas, 1859, by authority of the Legislature under the Act of February 15, 1858. Oldham & White’s Digest also contains amendments to the Code of Criminal Procedure approved February 15, 1858, and taking effect July 1, 1858.

      . This appears to be the rule relied upon by the State.

      . Tomlin and Daywood do not state affirmatively the assertion just made because the facts in those cases did not involve offenses consisting of degrees, but instead disposed of the issues therein on the conclusion that the “lesser offense” was not encompassed within the principle of offenses with degrees, nor was it contained within the allegations of the indictment.

      .A statute within such absurd principle might authorize upon the trial of A for the murder of B a conviction for the murder of C, or the rape of D, or the possession of contraband, or any other offense. The violations of due process that would occur are manifest.

      . Parchman v. State, 2 Tex.App. 228, and McCampbell v. State, 9 Tex.App. 124.

      . Apart from the function of the indictment as the instrument by which the jurisdiction of the trial court is attached or invoked in a particular case, the indictment is also designed to protect certain interests of the defendant. It has been held with respect to assertions that an indictment was insufficient to protect certain of those interests of the defendant, that failure to make timely objection upon such grounds waived any such defect. E. g., American Plant Food Corp. v. State, 508 S.W.2d 589, 604 (assertion of lack of notice of the offense charged); Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367 (assertion of duplicity). We observe that if it be urged that the indictment was defective for failure to protect some such interest of appellant, any objection for such a defect was waived by appellant’s requested submission of a charge on criminal trespass.


source: Caselaw Access Project

author: BROWN, Commissioner. ROBERTS, Judge DOUGLAS, Judge. ROBERTS, Judge.

license: Public Domain

text:
    James McNeill BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 49983.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Rehearing Denied Feb. 4, 1976.
    Second Rehearing Denied Feb. 25, 1976.

      Emmett Colvin and Joe Max Hendley, Dallas, for appellant.
    John Lawhon, Dist. Atty., Alan L. Levy, Asst. Dist. Atty., Denton, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The conviction is for murder; the punishment, assessed by the jury, life imprisonment.

At 1:45 P.M. on February 11, 1974, Shirley Seiber, the deceased’s neighbor, arrived home for an appointment with the deceased, Imogene Apple. At that time Mrs. Seiber saw the deceased at her mailbox and they had a brief conversation. Afterwards, Mrs. Seiber went into her house and remained there for fifteen to twenty minutes. Then she went through the back yard of the deceased’s residence and knocked on the sliding glass door that leads into the den. She tried the door and found that it was locked. . At that time, she testified that she heard a “bumping racket.” Mrs. Seiber walked around the outside of the house past the side utility door and came in through the garage door leading into the den.

Upon entering this door, Mrs. Seiber heard more “bumping noises” and then heard a loud groan. She opened the utility door and saw the deceased lying on the floor, groaning.

Mrs. Seiber then closed the door, went back through the garage to the outside and called out to the appellant. She explained that she believed he was at the house because his automobile had been “setting out by the fence in the back” when she arrived. Mrs. Seiber returned to the den through the garage and began to telephone an ambulance. Approximately twenty seconds had elapsed from the time she closed the utility door, went outside and returned to the den. During her trip outside around the garage and into the house, Mrs. Seiber never saw the appellant in the back yard area.

Prior to the completion of Mrs. Seiber’s telephone conversation, Freddy Wilson walked up to the sliding glass doors in the back, where he was unable to enter because the doors were locked. As Mrs. Seiber put the telephone down, the appellant emerged from the utility room where the deceased lay. Appellant had blood on his hands, his collar, and just below his collar. The appellant urged Mrs. Seiber to leave the house to summon an ambulance. While Mrs. Seiber was in the den, she stated that no one could have entered the house either through the glass doors in the den or through the outside utility room door.

Freddy Wilson went to the deceased’s residence to do some plumbing work. Wilson went up to the sliding glass door and knocked. At that time, he saw Mrs. Seiber in the den on the telephone. Mrs. Seiber showed Wilson the utility room where the deceased lay. Wilson testified that the deceased was lying face down with her head up against the door that leads to the outside. There was a considerable amount of blood in the room and obvious injuries to the head of the deceased.

Freddy Wilson first saw the appellant kneeling over the body. He noticed blood under the appellant’s chin and on his trouser leg. Also, Wilson stated that when he left his truck and came up to the house he did not see anyone going toward the house.

An ambulance attendant arrived and found the deceased lying on the floor with her head up against an outside door. The appellant, who was standing nearby, had blood on his shirt, face, chin, hands, and arm.

Officers of the Lewisville Police Department arrived and sealed off the premises. Captain Edge testified that when he arrived the outside door to the utility room was locked from the inside. Also, the other entrances and windows into the house, with the exception of the garage door and the sliding glass door, were locked. There was no evidence of any forcible entry nor did anything appear disturbed except for a small security box containing legal papers, although there were sizeable amounts of money present in the house.

Captain Edge interviewed the appellant on the scene. The appellant stated to him at that time that he had come to the deceased’s house to discuss a land matter with her and that upon arriving he had gone out to a pasture in back of the house. He stated that as he was returning to the house, in close proximity to the barn, he heard someone yell and he ran to the house, entering the residence through the outside utility room door.

Officer Galler spoke with the appellant and appellant told him that “he had been at the barn for about fifteen minutes and had just come back up to the house.” Officer Huddleston was told by the appellant that “he had started down toward the barn area and he heard someone call his name and he went back up to the house.”

In his first ground of error, appellant contends the court erred in admitting evidence intended to demonstrate appellant’s motive. The evidence complained of is that the deceased had made an appointment for the afternoon of the murder for the express purpose of executing a will. The deceased’s will in existence prior to her death provided that twenty-one acres of land worth over $400,000 pass to the appellant. Gerald Stockard, an attorney, testified that appellant was aware of this provision, and that appellant had attempted to persuade the deceased to transfer title to the property to him. Kenneth Howard, a surveyor, testified that appellant approached him two months before the murder about preparing a topographical map of part of the deceased’s property. Wendell Wood, a bank president from Virginia, testified that appellant borrowed twenty thousand dollars from him in order to start a racket club in the Lewisville area. Mrs. W. Greer testified that appellant wanted her to convince the deceased that appellant’s country club project was a good idea. Roman Faltejsek testified that two days before the murder appellant told him he was planning a country club, but that Faltejsek should not tell the deceased. On the day of the murder, appellant met with a bank official in Sherman about a loan for building a country club in Lewisville. On his financial statement, appellant listed twenty-two acres of land valued at $400,000 in the name of Apple/Bailey.

Where a case, such as the one before us, is dependent on circumstantial evidence for its proof, the rules of evidence will not be so stringently applied so as to exclude evidence which sheds light on the occurrence. Knapp v. State, Tex.Cr.App., 504 S.W.2d 421. The deceased’s plan to alter her will was a link in the chain of proof that appellant murdered her to inherit her property. Although standing alone it might not support a verdict, when viewed in light of the surrounding circumstances, the evidence complained of is relevant and, therefore, admissible. Knapp, supra. No error is shown.

In his second ground of error, appellant contends the court improperly admitted an incriminating oral statement in violation of Art. 38.22, V.A.C.C.P.

Police officers arrived at the scene and found three suspects; appellant, a neighbor, and a plumber. After a brief investigation, appellant was permitted to leave. Captain Edge, who was participating in the investigation, left the scene of the offense at about 6:00 P.M., after officers had found a metal pipe with blood and flesh adhering to it, the deceased’s will, and a coat with a pair of blood-stained gloves in one pocket. Edge was recalled by radio to the scene by another officer who told Edge that appellant had returned and wished to talk to Edge.

When Edge arrived, appellant and Officer Perkins were seated at a table. Edge pulled up a chair and sat down facing appellant. Edge said, “I understand you wanted to talk to me.” Bailey replied, “Yes, I did not tell you the whole or the exact truth about everything.” Edge asked, “Like what?” After a pause, appellant replied, “I hid the murder weapon, a jacket, and the gloves.” Edge then placed appellant under arrest and gave him his statutory warnings.

Appellant relies heavily on Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, where we held that an incriminating statement made to a police officer while in the police car was inadmissible, the Miranda warnings not having been given. In Ancira, however, the police officer testified that he wanted to talk to the appellant about selling heroin, and asked the appellant if he “would ride around” for the purpose of interrogating him.

Here the appellant did not speak with police officers at their request, but initiated the conversation which led to the statement complained of. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 964 (1966), defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The fact that the accused and police officers are together will not render a statement inadmissible if the circumstances do not fall within the definition of custodial interrogation. The fact that appellant had been free to go and had chosen to return in order to speak with Captain Edge removes this case from the proscription of Miranda. Although decided before the applicability of Miranda, we believe that the facts of Taylor v. State, Tex.Cr.App., 420 S.W.2d 601, are salient to the issue at hand. These facts are as follows:

“The shooting occurred at 2:50 p. m., and shortly thereafter the Sheriff arrived at the scene. After a few minutes of investigation the Sheriff left to find appellant. Meanwhile appellant had voluntarily arrived at the Sheriff’s courthouse office, but found no one present. Having heard over the Sheriff’s two-way radio that the Sheriff was on his way to appellant’s residence, and not being able to operate the same, appellant walked to the Tax Collector’s office and asked a woman deputy there to contact the Sheriff and tell him that he (appellant) was not running. Appellant then returned alone to the Sheriff’s office, sat down and began reading a newspaper. When the Sheriff arrived, between 3:15 p. m. and 3:30 p. m., the appellant arose and voluntarily stated, ‘Well, I told them I was going to do it.’ The Sheriff then pointed to the .SO-SO rifle (later shown to be the weapon from which the fatal shots were fired) and appellant stated it belonged to him, but warned the Sheriff to be careful as the rifle was loaded. The record reflects that the Sheriff then told appellant he should not make any further statements as there were certain procedures to be followed before he could say anything. Shortly thereafter the appellant was taken before a magistrate.
“The Sheriff testified he had not arrested appellant prior to the complained of statements. From all the facts and circumstances in evidence, including the fact appellant was still in possession of his loaded rifle, we conclude that appellant was not under arrest when he made the inculpatory remarks described. The trial court did not err in admitting such statements.”

We find that appellant’s statement was voluntarily given to Captain Edge and was, therefore, admissible. No error is shown.

As stated in Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, the factor in determining the voluntariness of a statement which has consistently impressed us is “whether or not the focus of the investigation has finally centered on the defendant.” Ancira, p. 927. In this case, as in Ancira, the interrogating officer testified that the investigation had not yet narrowed to the appellant, but that “anybody could have done it,” and that appellant and two others were suspects at the time the statement was made. This case is distinguishable from Ancira in that the officer’s testimony is supported by other facts.

Ancira spoke with the arresting officer at the officer’s request. Here, as in Brown v. State, Tex.Cr.App., 475 S.W.2d 938, the defendant initiated the conversation which led to the statement. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The fact that the accused and police officers are together in an office, or a home, or a police car will not render a statement inadmissible if the circumstances do not fall within the definition of custodial interrogation. The fact that appellant had been free to go and had chosen to return in order to speak with Captain Edge removes this case from the proscription of Miranda. Had police officers begun to focus their investigation on the appellant after he had inaugurated the conversation, we would be faced with different problems. Here, however, appellant made the statement after only one question which could hardly be described as directed toward eliciting an incriminating response. We find that appellant’s statement was voluntarily given to Captain Edge and was, therefore, admissible. No error is shown.

In this third ground of error, appellant contends that the trial court erred in admitting photographs of the deceased taken at the time of the autopsy. The four photographs show the face of the deceased, the upper right side of the head, the right hand, and the left hand. Appellant argues that since the doctor who performed the autopsy testified that he had to dissect in order to evaluate a cerebral hemorrhage, the photographs are inadmissible because the jury could not determine if the wounds depicted were the result of the murder or the autopsy. Appellant relies on Terry v. State, Tex.Cr.App., 491 S.W.2d 161, where we held that four photographs of a child’s body taken after an autopsy had been performed were inadmissible for the reason that they depicted “massive mutilation of the subject matter caused by the surgery in performing the autopsy,” and in the absence of explanation, their probative value was outweighed by their inflammatory nature.

Dr. Lynn, the doctor who performed the autopsy, testified that each of the photographs complained of depicted wounds incurred during the murder, probably by a heavy, blunt instrument. There was no testimony to the effect that any of the photographs pictured the deceased subsequent to the autopsy. Terry cannot be construed to prevent the admission of relevant photographs merely because the deceased has been removed to clinical surroundings. Cf. Knoppa v. State, Tex.Cr.App., 505 S.W.2d 802. Only where the results of surgery have obfuscated the results of the crime will otherwise accurate depictions be inadmissible. The photographs here in question illustrated and clarified the doctor’s description of the injuries, and no error is reflected in their admission. Provost v. State, Tex.Cr.App., 514 S.W.2d 269.

In his fourth ground of error, appellant contends that the trial court erred in permitting the prosecutor to argue about evidence which had been excluded.

Dr. Lynn testified that certain wounds on the hands and arms of the deceased were probably caused as she attempted to protect herself. Appellant’s objection to this testimony, as being outside the pale of the doctor’s expertise, was sustained. Appellant argues that the prosecutor, during his argument, referred to this testimony and thereby argued matters outside the record.

The record reveals the following:

“[Prosecutor]: Now then, you heard earlier the testimony regarding Dr. Lynn, what he said. Dr. Lynn got up here before you. They asked him about the hands, about the bruises on the hands. You will recall that he — they asked him, ‘Well, how would that have been made.’ He put his hands up here like this (Attorney indicating). Do you recall how—
“MR. COLVIN: I object to that, Your Honor. That was objected to and the objection was sustained. I ask that the prosecutor be instructed to not refer to matters that are not in evidence.
“THE COURT: Well, the Jury has heard the evidence. They are the ones to determine it.”

It is not clear whether the court sustained or overruled appellant’s objection. An objection must be pressed to an adverse eonclusory ruling, or else it is waived. Nichols v. State, Tex.Cr.App., 504 S.W.2d 462; Verret v. State, Tex.Cr.App., 470 S.W.2d 883. Nothing is before us for review.

In his fifth ground of error, appellant contends the trial court erred in charging the jury as follows:

“Unless you find from the evidence beyond a reasonable doubt that the death of Imogene McNeill Apple was not caused by the independent act of a third party, if there was such a death, or if you have a reasonable doubt thereof, then you will acquit the defendant.”

This paragraph of the charge was included to present the appellant’s defense that an unknown third party committed the offense. Appellant argues that this paragraph is confusing and serves to shift the burden of proof to the defendant.

In considering a charge on appeal, we will not review isolated portions, but will consider the charge as a whole. Peterson v. State, Tex.Cr.App., 508 S.W.2d 844. In one of the final paragraphs of the charge in question, we find this instruction, “The burden of proof in all criminal cases rests upon the state throughout the trial; it never shifts to the defendant.” Viewing the paragraph of which appellant complains in light of the foregoing instruction, it charges the jury that the state must convince them beyond a reasonable doubt that no one but the defendant took part in the murder; that is, the state must exclude all others save the defendant, otherwise an acquittal is required. The phrase “not caused by the independent act of a third party” can only mean “done by the appellant himself.” This is the heart of the instruction under consideration. The charge is favorable to appellant in that the state must dispel all reasonable doubts that a third party committed the offense alone. Appellant’s defense of an unknown third party murdering the deceased was adequately covered, and no error is shown.

In his sixth ground of error, appellant contends the trial court erred in submitting all six counts of the indictment to the jury, in that there was no evidence to support three of the counts. Appellant argues that there is no evidence that appellant caused “deceased to choke and strangle on blood and food particles and bodily fluids” by beating her with a pipe (counts three and four), or that appellant caused her death by beating deceased with his fist (count five).

Where a general verdict is returned, and the evidence is sufficient to support a finding under any of the counts submitted, no error is shown. Hintz v. State, Tex.Cr.App., 396 S.W.2d 411; Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178.

Dr. Lynn testified that “the cause of death in this individual was apparent blunt trauma to the head with pontine venous hemorrhages, and aspiration of gastric contents.” He further testified that the hemorrhage could have been caused “by either a blow by the fist or an instrument such as the pipe now in evidence.” Appellant’s sixth ground of error is overruled.

In his seventh ground of error, appellant contends the court erred in admitting inflammatory and bloody photographs of the deceased after the position of her body at the scene had been altered.

The photographs complained of were taken after the deceased had been rolled over and placed on a backboard and a towel or sheet had been placed over the lower portion of her body. Appellant argues that because the photographs do not depict the deceased as she was found they were offered by the state only to inflame the jury.

Robert Cabbell, a fireman and emergency medical technician with the Lewisville Fire Department, testified that he arrived on the scene and found the deceased lying face down in a pool of blood. Cabbell testified that there was blood “all over the floor and the walls and the cabinets.” He further testified that he rolled her over to determine if she was alive or dead and that he and his assistant placed her on a backboard.

Martin v. State, Tex.Cr.App., 475 S.W.2d 265, does not limit the admission of gruesome photographs to those which depict' a scene as found by that person unfortunate enough to discover it. The rule there announced is that if “a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.” It was not error to admit the photographs.

Lastly, appellant contends that the evidence is insufficient to sustain the conviction. The jury was instructed as to the law on circumstantial evidence. In view of the fact that appellant admitted hiding the implements of the crime, his contradictory statements to the police officers, and the circumstances which indicate a motive for the commission of the act, we find that the evidence is sufficient.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge

(concurring).

I agree with the Court’s disposition of appellant’s fifth ground of error relating to the charge on independent acts of a third party. I find it necessary, however, to divorce myself from some of the language used by the Court in the treatment of the issue.

The charge complained of read as follows:

“Unless you find from the evidence beyond a reasonable doubt that the death of Imogene McNeill Apple was not caused by the independent act of a third party, if there was such a death, or if you have a reasonable doubt thereof, then you will acquit the defendant.”

At best, the charge was confusing but it did not, as the appellant contends, shift the burden of proof to the defendant. Nor was the charge contradictory as in the case of Black v. State, 137 Tex.Cr.R. 516, 132 S.W.2d 267 (1939), relied upon by the appellant.

The charge given can be paraphrased as follows:

Unless you find beyond a reasonable doubt that the death was not caused by a third party, then you will acquit the defendant.

An analysis of the issues involved produces the following:

A. The State must prove that death was not caused by a third party.
B. The State must prove “A” beyond a reasonable doubt.
C. The charge should read: Unless you find “A and B,” then you will acquit.

This charge resembles the charge actually given. It is an affirmative statement of the defensive issue. And it does not shift the State’s burden of proof to the appellant.

I take issue, however, with the majority’s reliance on another paragraph of the charge submitted by the court to the jury, “The burden of proof in all criminal cases rests upon the state throughout the trial; it never shifts to the defendant.” It is one thing to “consider the charge as a whole” on review, but quite another thing to' rely on a fortuitous catch-all phrase to cure otherwise reversible error. The majority would seemingly rely on this boiler plate paragraph to cure any and all defects shifting the burden of proof in other portions of the court’s charge. This type of solution is subject to great potential for abuse and I cannot accede to such a practice.

MORRISON, J., joins in this concurrence.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Appellant urges that the trial court erred in admitting testimony that the deceased was planning to change her will. There is no proof that appellant knew that she had planned to change her will so that he would or would not be left property over the value of $400,000 as provided for in the will that had already been signed.

Assuming that it was error to admit the testimony, does its admission amount to reversible error? Let us look to some of the testimony already mentioned in the opinion on original submission and additional evidence that appears in the record. Even though the trial judge cautiously and wisely instructed the jury that this was a circumstantial evidence case, the evidence led to the conclusion that appellant and no other committed the murder. Appellant parked his car out by the fence in the back so that it would not be seen. He usually parked it where it could be seen.

From the testimony of Shirley Seiber and Freddy Wilson, the plumber, no one but appellant was in the house with the deceased at the time of the homicide. If anyone else had been in the house, they would have seen them. Appellant had blood on his chin, his face, hands and arm as well as on his clothing. He gave several contradictory versions to those who were at the house shortly after the homicide.

After these different versions, appellant then volunteered to Captain Edge “ . I did not tell you the whole or exact truth about everything,” and “I hid the murder weapon, a jacket, and the gloves.” The officer found a metal pipe with blood and flesh on it and a coat with a pair of blood stained gloves in one pocket. The officers found a copy of a will executed by the deceased on top of a security box on a table. This was the only instrument outside the box.

Appellant had attempted to get the deceased to advance him some money for developing a club but she had refused. He knew the contents of the will in which he was the major beneficiary. On the day of, and just a short time before the murder, appellant in an attempt to obtain a loan for building a country club, listed twenty-two acres of land valued at $400,000 in the name of “Apple-Bailey.” This showed he thought that he was about to own the land that day. Appellant had made statements that he could not live on the $2,000 a month that he was making as a pilot.

The proof in this case shows that appellant and no other killed the deceased. There is no indication that anyone else was suspected of committing the crime. Appellant was the only person in the house at the time of the homicide. His statement to the officer where he had hidden the murder weapon, gloves and jacket turned out to be true and is almost, if not, direct evidence of his committing the crime. A motive to get the property because he could not live on his income and that he wanted the property and he wanted it immediately was proved.

The error, if any, in admitting the complained of testimony is not sufficient to reverse this cause. Appellant’s motion for rehearing is overruled.

DISSENTING OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

I.

The following is the opinion originally prepared and submitted to this Court on rehearing by the Honorable Carl E. F. Dally, Commissioner for the Court. I adopt it as Part I of my dissent to the majority’s disposition of this case on rehearing.

“The appellant’s motion for leave to file a motion for rehearing was granted. We now agree that appellant’s first ground of error was improperly decided. The motion for rehearing will be granted.

“The appellant knew he was the principal beneficiary of the deceased’s will. The appellant’s counsel timely objected that until it was shown the appellant had knowledge that the deceased intended to change the provisions of her will, the court should not admit the testimony of deceased’s attorney that she had an appointment to execute a new will on the afternoon of the day she was killed.

“Circumstances that show a defendant had a motive to kill the deceased are only admissible if it is first shown that the circumstances were probably known to the defendant. See McCormick and Ray, Evidence, Sec. 1534 (2d ed. 1956); Wigmore, Evidence, Sec. 389 at 329 (3d ed. 1940). If the circumstances are not known to a defendant, they could not stimulate the emotion causing the defendant to kill the deceased.

“The rule stated has been applied in many of the prior decisions in this State. Judgments have been reversed when circumstances were admitted to show a motive for murder but it was not shown that the defendant had knowledge of the circumstances. See e. g. Phillips v. State, [22 Tex.App. 139], 2 S.W. 601 (Tex.Ct.App.1886); De Leon v. State, [68 Tex.Cr.R. 625], 155 S.W. 247 (Tex.Cr.App.1913); Young v. State, [59 Tex.Cr.R. 137], 127 S.W. 1058 (Tex.Cr.App.1910); Black v. State, [82 Tex.Cr.R. 358], 198 S.W. 959 (Tex.Cr.App.1917); Kirklin v. State, [73 Tex.Cr.R. 251], 164 S.W. 1016 (Tex.Cr.App.1914); Terry v. State, [45 Tex.Cr.R. 264], 76 S.W. 928 (Tex.Cr.App.1903); Berwick v. State, [116 Tex.Cr.R. 508], 31 S.W.2d 655 (Tex.Cr.App.1930); Edmondson v. State, [109 Tex.Cr.R. 518], 6 S.W.2d 119 (Tex.Cr.App.1928).

“This rule has been recognized and found to be satisfied in many cases. See e. g. Golin v. State, [37 Tex.Cr.R. 90], 38 S.W. 794 (Tex.Cr.App.1897); Barkman v. State, [41 Tex.Cr.R. 105], 52 S.W. 73 (Tex.Cr.App.1899); Smith v. State, [44 Tex.Cr.R. 53], 68 S.W. 267 (Tex.Cr.App.1902); Harrelson v. State, [60 Tex.Cr.R. 534], 132 S.W. 783 (Tex.Cr.App.1910); Martin v. State, [91 Tex.Cr.R. 23], 236 S.W. 729 (Tex.Cr.App.1922); Arriola v. State, [108 Tex.Cr.R. 270], 1 S.W.2d 287 (Tex.Cr.App.1927); Davis v. State, [118 Tex.Cr.R. 410], 40 S.W.2d 809 (Tex.Cr.App.1931); Morgan v. State, [121 Tex.Cr.R. 424], 49 S.W.2d 788 (Tex.Cr.App.1932); Brown v. State, [172 Tex.Cr.R. 229], 355 S.W.2d 718 (Tex.Cr.App.1962). Among the cases from other jurisdictions recognizing the rule here applied are People v. Gaugas [Gougas], [410 Ill. 235], 102 N.E.2d 152 (Ill.Sup.Ct.1951); Spradlin v. State, [88 Ga.App. 230], 76 S.E.2d 435 (Ga.App.1953).

“The State does not argue that there is evidence to show the appellant had knowledge the deceased intended to change her will. The State merely argues that greater latitude in admitting evidence is permissible since this is a case based wholly on circumstantial evidence. For this general rule they cite and rely only upon Knapp v. State, 504 S.W.2d 421 (Tex.Cr.App.1973) and Ethridge v. State, [133 Tex.Cr.R. 287], 110 S.W.2d 756 (Tex.Cr.App.1937). This general rule contained in these authorities is not contrary to our holding in this case.

“The rule applied in this case governing the admission of circumstances to show motive in a murder case is equally applicable to direct and circumstantial evidence cases. See Phillips v. State, supra. The appellant’s motion for rehearing is granted.”

II.

This case should be reversed for another reason. On original submission I concurred in the affirmance of appellant’s conviction despite my reservations about the court’s instruction on the independent acts of a third party. After'careful reconsideration, I have concluded that the trial court reversibly erred in this portion of the charge because it failed to submit this defensive issue as an affirmative instruction. As this Court said in Barton v. State, 172 Tex.Cr.R. 600, 601-602, 361 S.W.2d 716, 717 (1962):

“It is well settled that an accused is entitled to an affirmative instruction on the law as to every defensive issue raised by the evidence, even though such issue be raised by his testimony alone.”

And in Carter v. State, 515 S.W.2d 668, 669 (Tex.Cr.App.1974), we held:

“When a defensive theory is raised by evidence coming from any source, and a charge thereon is properly requested, it must be submitted to the jury. See Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972).”

This is true regardless of “whether [the evidence is] produced by the State or the defendant, and whether it be strong, weak, unimpeached, or contradicted.” Thompson v. State, 521 S.W.2d 621, 624 (Tex.Cr.App.1974).

An affirmative charge is one which states in clear and positive terms the issues the jury is called upon to determine. Reynolds v. State, 8 Tex.App. 412 (Austin Term, 1880). It “should be so framed as not to give undue prominence to any fact, theory, or proposition of law,” Moore v. State, 59 Tex.Cr.R. 361, 364, 128 S.W. 1115, 1116 (1910); moreover, it should be “disconnected from the theory of the state.” Moore, supra. In short, it must not “unduly emphasize the theory of the prosecution, thereby deemphasizing proportionally the defendant’s theory.” Perez v. United States, 297 F.2d 12, 16 (5th Cir. 1961).

The rationale for the rule is best stated in the early case of Reynolds v. State, supra, a burglary prosecution where the defendant attempted to show that one Griffin had probably committed the offense:

“Repeated decisions of courts of last resort in this State, as well as the provisions of our statute, have established the principle that upon the trial of a felony case it is incumbent upon the court to instruct the jury as to the law, and all the law, applicable to the case, and to every issue legitimately deducible from the evidence. It is the fundamental policy of the law that in trials for the graver of-fences, [sic] which may result in the deprivation of life or liberty, the jury shall have presented to them in plain language the law governing the exact issues they are called upon to determine, so framed that their minds can readily comprehend and solve the question of guilt or innocence by an easy and simple application of the law to the facts they find to be true.
“A charge which submits some of these issues, especially such as are based upon evidence tending to establish the innocence of the person on trial, in an inferential or negative way, does not meet this legal requirement. The defendant is entitled to a distinct and affirmative presentation of the issues arising upon his evidence, in order that the jury may not be induced to ignore his defences [sic] upon the supposition that the court did not deem them of sufficient importance to justify consideration, and for a further reason that without such presentation the jury are in no condition to make an intelligent selection of the law which should govern them in case they should find that the defendant’s evidence was true. Heath v. The State, 7 Texas Ct.App. 464; Smith v. The State, 7 Texas Ct.App. 414; Beckham v. The State, [8 Tex.Ct.App.] 52.
“It may often happen that the testimony in defence [sic] has been fabricated, and that so inartistically as to bear upon its face an air of improbability or actual untruth; but even then the court is not relieved from the duty of considering it in framing his charge, as it is the right of the defendant to have its truth or falsity determined by the jury and not by the court in the first instance. As said by this court in the recent case of Riojas v. The State, [8 Tex.Ct.App.] 49, [50,] in discussing this identical question: ‘In view of all the evidence elicited on the trial, it is more than probable that this defence, [sic] even under a proper instruction, would have had no appreciable effect with the jury, and would have been discarded altogether by them in reaching their conclusion. But that was not a question for the determination of the court below, and cannot be with this court on appeal. The provinces of court and jury are plainly and rigidly defined by law, and it is not for the former to act upon a belief that the latter cannot be affected by any particular portion of the evidence. Possibly they (the jury) may entertain an altogether different view of the evidence, as is their undoubted prerogative under the law.’ ” Reynolds v. State, supra, at 414-415, (Emphasis added.)

The emphasized language makes it evident that the major reason for the rule is that a charge which fails to instruct affirmatively on the evidence favorable to the defendant constitutes a comment on the weight of the evidence in violation of what is now Art. 36.14, Vernon’s Ann.C.C.P. Compare Art. 38.05, V.A.C.C.P. Accord: McLaughlin v. State, 10 Tex.App. 340, 357-358 (Austin Term 1881).

What remains is the question of what form an affirmative charge should take. The recent case of Cozby v. State, 506 S.W.2d 589 (Tex.Cr.App.1974), is helpful. In Cozby, this Court reversed the conviction because of the trial court’s failure to give an affirmative charge on the issue of “good faith” purchase. There the court approved as an “affirmative charge” a requested charge which used the following language:

“You are further instructed that if you believe from the evidence that the Defendant, Charles Cozby, purchased the red ’71 Ford LTD, in good faith, alleged to have been stolen from Ted Arendale Ford, if you have so found, from the said Ray Woods and paid valuable consideration for the purchase of said automobile, then you will say by your verdict ‘Not Guiltyor if you have a reasonable doubt thereof, you will acquit the Defendant.” (Emphasis added.)

The charge which was given in Cozby —but deemed inadequate by this Court— was as follows:

“Even though you should find and believe from the evidence beyond a reasonable doubt that the Defendant received from person or persons unknown property described in the indictment of the value of over Fifty Dollars, yet you cannot convict the Defendant unless you further find and believe from the evidence, beyond a reasonable doubt, that, at the time he so received said property, if he did, the Defendant received the same fraudulently, with the intent to appropriate said property to his own use and benefit and to deprive the owner of the value thereof, and that the Defendant then knew that the same had theretofore been stolen, and if you have a reasonable doubt as to whether the Defendant received such property fraudulently, or as to whether the Defendant knew at the time he received the same, if he did, that such property had theretofore been stolen, then you will acquit the Defendant.” (Emphasis added.)

The requested charge in Cozby follows the guidelines outlined above; that is, it states the defensive theory affirmatively, using direct language: “If you believe . you will acquit the Defendant.” Similarly, the charge given in Cozby presents the defensive theory in negative terms which unduly emphasize the State’s theory of the case: “ . . you cannot convict the Defendant unless you find and believe . . . ”

In this case the State’s evidence raised the issue of whether the homicide was committed by the acts of a person other than the appellant. Accordingly, the appellant made a timely objection to the court’s charge for its failure “to instruct for acquittal if the jury finds that the death of the deceased was caused by the independent act of a third person.”

The trial court responded to this objection by giving the confusing and seemingly contradictory charge which is reproduced in the concurring .opinion on original submission. The appellant then objected to the form of this charge.

The charge given in this case strongly resembles the charge in Cozby, not only in its negative emphasis, but in its capacity for creating confusion in the minds of the jurors and implying to them that the trial judge favored the State’s view of the case. Reynolds v. State, supra; McLaughlin v. State, supra. Similarly, the charge requested here by the appellant is in the form endorsed by the Court in Cozby. It should have been given; the failure to do so was reversible error. See Burkhalter v. State, 79 Tex.Cr.R. 336, 184 S.W. 221 (1916), and Ward v. State, 71 Tex.Cr.R. 310, 158 S.W. 1126 (1913), for examples of the charge as it should have been given.

The judgment should be reversed.

ODOM, J., joins in Part I of this dissent.

      . Griffin was, providentially, absent from the trial court’s jurisdiction at the time of trial. The Court of Appeals summarized Reynolds’ defense with the following language: “In short, the defence [sic] saddled the onus on Griffin, who, all things considered, was in good plight to carry it.” Reynolds, supra, 8 Tex.App. at 414.