author: DALLY, Judge. CLINTON, Judge,

text:
    Ex parte Ronald Allan WILSON, Appellant.
    No. 59775
    Court of Criminal Appeals of Texas, En Banc,
    Oct. 17, 1979.

      Carol S. Vance, Dist. Atty. and Douglas M. O’Brien, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is a post-conviction writ of habeas corpus proceeding.

On May 15,1975, petitioner was convicted for a violation of the Controlled Substances Act, the alleged offense being possession of phentermine. The punishment assessed was imprisonment for five years. On appeal, the contention now presented was not raised and the judgment was affirmed in a per curiam opinion.

Petitioner now contends, and the State in its brief agrees, that he is unlawfully imprisoned for the reason stated in Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977) and Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977). In those cases, involving prosecutions for a misdemeanor under the Dangerous Drugs Act, Art. 4476-14, V.A.C.S., we stated that phentermine had been removed from the Dangerous Drugs Act and placed in Schedule IV of the Controlled Substances Act, Art. 4476-15, V.A. C.S., but phentermine had not been added to any of the penalty groups of the Controlled Substances Act. We said that as a consequence no penalty was provided for the possession or delivery of phentermine.

We have reexamined the opinions in Riddle and Lumberas in light of the opinion in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978). This reexamination convinces us that we were correct in holding that phentermine was not a dangerous drug and in reversing those convictions under the Dangerous Drugs Act. At the time Riddle and Lumberas were decided, Sec. 2(a) of the Dangerous Drugs Act provided, among other things, that a dangerous drug was “any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act . . . ” Phentermine was, and is, listed in Schedule IV of the Controlled Substances Act, Sec. 2.06(d)(2). Also, isomers of methamphetamine were, and are, listed in Schedule II of the Act, Sec. 2.04(d)(2). However, we erred when we went on to state, in dictum not necessary to the result reached in Riddle and Lumberas, that phentermine was not included in a penalty group of the Controlled Substances Act and there was no penalty provided for its possession or delivery.

Methamphetamine, including its salts, isomers, and salts of isomers, has always been listed in Penalty Group One of the Controlled Substances Act, Sec. 4.02(b)(6). Isomeric compounds are composed of the same elements united in the same proportions by weight, but differ in one or more properties because of a difference in structure. Webster’s New International Dictionary (2d ed. 1957). Methamphetamine and phentermine have the same chemical composition, noted as CioHjbN, and have the same molecular weight, 149.2. Merck Index, pp. 775, 944 (9th ed. 1976); Martindale, The Extra Pharmacopoeia, pp. 86, 314 (27th ed. 1977). Methamphetamine and phenter-mine are structural isomers, i. e., compounds having the same chemical composition, but differing in the arrangement of the component elements. 15 Encyclopedia Americana, p. 514 (1976). The testimony of Floyd E. McDonald, Director of the Houston Police Laboratory, which appears in the records of this Court from the previous appeal of this case, is consistent with this conclusion. He testified phentermine is an isomer of methamphetamine.

Since phentermine is an isomer of methamphetamine, we were in error when we stated in Riddle and Lumberas that there was no penalty provided for its possession or delivery. Phentermine was then and is now a controlled substance, and was then and is now subject to criminal prosecution under the Controlled Substances Act. On the other hand, we were correct in denying relief in Ashcraft, since in that case the State was prosecuting the felony offense and had alleged that phentermine is an isomer of methamphetamine.

The indictment on which petitioner was convicted alleges that on or about July 26, 1974, petitioner “knowingly and intentionally possessed] a controlled substance, namely: phentermine . . .” Unlike the indictment in Ashcraft, the indictment does not allege that phentermine is an isomer of methamphetamine. Thus, we are called upon to determine whether such an allegation is necessary in order to prevent the indictment from being fundamentally defective.

In Taylor v. State, 172 Tex.Cr.R. 461, 358 S.W.2d 124 (Tex.Cr.App.1962), a prosecution under the old Narcotic Drug Act, Art. 725b, V.A.P.C. (1925), the indictment alleged the unlawful possession of “a narcotic drug, to-wit: dolophine . . . ” Dolophine was not specifically named in Art. 725b, supra, but the proof showed that it was a narcotic drug of the same chemical formula as ami-done, which was named in the Act. We held that the indictment was sufficient to allege an offense and not fundamentally defective.

In Henley v. State, 387 S.W.2d 877 (Tex.Cr.App.1964), the indictment alleged the unlawful sale of “a narcotic drug, to-wit: Paregoric . . . ” We held that the trial court did not err in overruling the defendant’s motion to quash the indictment, stating:

“While paregoric is not included within the statutory definition of a narcotic drug, the proof shows that it is, in fact, a narcotic drug known under the official name of ‘camphorated tincture of opium’ and that it contains morphine which comes from opium, a narcotic drug enumerated in the statute.”

In McClanahan v. State, 394 S.W.2d 499 (Tex.Cr.App.1965), the defendant was charged with the unlawful sale of “a narcotic drug, to-wit: demerol . . . ” We held that while Demerol was not named in Art. 725b, supra, the trial court did not err in instructing the jury that Demerol was a narcotic drug, since the proof showed that Demerol was the trade name of isonipe-caine, which was named in the Act. On rehearing, we further held that the indictment was not unconstitutionally indefinite.

In Crockett v. State, 511 S.W.2d 519 (Tex.Cr.App.1974), the information alleged the unlawful attempt to obtain “a dangerous drug, to-wit: Talwin, by use of a forged prescription. . . .” We held that the information was fundamentally defective since Talwin was not named in the applicable statute, former Art. 726d, Sec. 2, V.A. P.C. (1925). We rejected the State’s argument that the information was sufficient to state an offense because the proof showed that Talwin was a legend drug, and hence a dangerous drug under Sec. 2(20) of Art. 726d, supra.

In Jackson v. State, 572 S.W.2d 551 (Tex.Cr.App.1978), the information alleged the unlawful possession of “a dangerous drug, namely TETRACYCLINE . . Noting that tetracycline is not specifically designated a dangerous drug under the Dangerous Drugs Act, Art. 4476-14, V.A. C.S., we held that the information was fundamentally defective based on the decision in Crockett.

Our opinions in Taylor, Henley, and McClanahan are in conflict with our more recent opinions in Crockett and Jackson. We are satisfied that the rule stated in the latter opinions is correct, and accordingly we overrule Taylor, Henley and McClana-han to the extent they conflict with Crockett, Jackson and this case.

Ex parte Charles, 582 S.W.2d 836 (Tex.Cr.App.1979), was a felony prosecution under the Dangerous Drugs Act for delivery of sinequan. Sinequan is not named in Sec. 2(a) of the Act, but is a legend drug and therefore subject to the Act. However, the indictment in Charles did not allege that sinequan is a legend drug, and we held that this omission rendered the indictment ineffective to state an offense. We stated the reason for this holding as follows:

“[Sjinequan is not listed by name in the Dangerous Drug Act; therefore, it is necessary to allege facts showing why sine-quan is a dangerous drug. An indictment should allege all that the State is required to prove. Art. 21.03, V.A.C.C.P., and see Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977).
“Drugs which bear a legend: ‘Caution: federal law prohibits dispensing without a prescription’ are dangerous drugs. Art. 4476-14, Sec. 2(a)(3), V.A.C.S. Assuming that sinequan is a dangerous drug because it bears that legend, it would be necessary for the State to prove that it was a dangerous drug because it bears that legend. Since an indictment should allege all that the State is required to prove, Art. 21.03, V.A.C.C.P., and Benoit v. State, supra, it would be essential for the State to allege that sine-quan is a dangerous drug because it bears the legend: ‘Caution: federal law prohibits dispensing without a prescription.’ The indictment fails to allege an essential element of the offense, because it fails to allege why sinequan is a dangerous drug. The relief sought must be granted.” 582 S.W.2d at 837.

The same reasoning is applicable to the instant case. Petitioner was indicted for possession of phentermine. Phentermine is not named in a penalty group of the Controlled Substances Act, but is subject to the Act because it is an isomer of methamphetamine. Since it was necessary for the State to prove that phentermine is an isomer of methamphetamine in order to convict petitioner, it was equally necessary for the State to allege this fact in the indictment.

To state the rule generally, we hold that in a prosecution under the Controlled Substances Act for the manufacture, delivery, or possession of a substance not specifically named in a penalty group but which is otherwise described in a penalty group (for example, an isomer of methamphetamine), such description is an essential element of the offense which must be alleged in the indictment in order to state an offense. The same rule applies to prosecutions under the Dangerous Drugs Act involving a drug not specifically named in Sec. 2(a) but which is otherwise described therein (for example, a legend drug).

The indictment in this case does not allege that phentermine is an isomer of methamphetamine; that is, the indictment does not allege why phentermine, a substance not listed by name in a penalty group, is a controlled substance. Therefore, the indictment fails to allege an essential element of the offense and is fundamentally defective. The relief sought is granted.

It is so ordered.

DOUGLAS, J., dissents.

CLINTON, Judge,

concurring in part and dissenting in part.

Phentermine is a rather innocuous stimulant prescribed as an appetite suppressant in treating obesity. Being unable to subscribe to the anomalism of possession of phentermine carrying a misdemeanor penalty one season, going without any penalty whatsoever during another and then being upgraded to a second degree felony offense in the present season — the latter two changes made without direct legislative enactment — I must respectfully dissent to all but the result.

From the time the Legislature of Texas first proscribed possessing “any drug that bears the legend: ‘Caution: federal law prohibits dispensing without prescription , " possession of a legend drug, including phen-termine whenever it became one until August 28, 1973, was a misdemeanor offense. Penalties were decreased or increased from time to time to the present punishment of a fine not to exceed $1,000.00 or confinement in jail for a period not to exceed 6 months, or both.

Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977) and Rumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977), hard on the heels of Riddle, decided that the action of the Commissioner in adding phentermine to Schedule IV of the Texas Controlled Substances Act resulted in there being “no penalty provided for the possession or delivery of phentermine,” Riddle, supra, at 644. This conclusion was reached on the rationale that since the dangerous drug act defines a dangerous drug as one “that is not included in Schedules I through V of the Texas Controlled Substances Act,” the action of the Commissioner of Health had the legal effect of removing phentermine from its classification as a dangerous drug, so that the penalty provisions of the dangerous drug act no longer applied to otherwise unlawful acts involving phentermine.

Thereafter, at some point not revealed by our research of opinions of this Court or other source material, at least at the time petitioner in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978) was indicted, a compensating strategy had been developed in some quarters. The notion was to allege the offense as possessing “phentermine, an isomer of methamphetamine,” prove the allegation by competent testimony and, if the evidence is otherwise sufficient, convict the offender for a second degree felony for which the penalty is confinement for any term of not more than 20 years or less than 2 years. That the strategy succeeded is demonstrated by the fate of Ashcraft, whose term of confinement is not reflected by the opinion in his case, and is further shown by the punishment meted to petitioner in this case, imprisonment for .5 years, and by the majority opinion rendered herein.

Again, these seasonal changes from the spring of misdemeanor punishment through the carefree summer of unrestrained conduct on through to the winter of discontent at felony confinement were all made without an intentional or knowing legislative modification of the calendar. Changing the metaphor, the exquisite irony of the phen-termine ball being volleyed about is that when the Commissioner served it into Schedule IV because the Federal authorities had done so, he and they could act only after making certain findings as prescribed in the Federal act and Section 2.13 of the Texas Controlled Substances Act:

“The Commissioner shall place a substance in Schedule IV if he finds that:
(1) the substance has a low potential for abuse relative to substances in Schedule III;
(2) the substance has currently accepted medical use in treatment in the United States; and
(3) abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in Schedule III.”

As originally enacted by the Legislature, and without substantial change since then, the substances placed in Schedule IV were, without readily ascertainable exception, those placed in Penalty Group 3 by the Legislature — the penalty for which being that provided for a Class A misdemeanor! On the other hand, methamphetamine is a Schedule II substance, meaning, as provided by Section 2.11 of the Controlled Substances Act, that it has “high potential for abuse,” has currently accepted medical use in treatment in the United States or currently accepted medical use “with severe restrictions” and its abuse may lead to “severe psychological or physical dependence.”

After the Attorney General of the United States, acting on findings and recommendations of the Secretary of Health, Education and Welfare, finally placed amphetamine, methamphetamine and phentermine in the respective schedule he found appropriate upon findings mandated by Congress— which are the same prescribed by our Legislature in delegating authority to the Commissioner — amphetamine and methamphetamine ended up in Schedule II, 21 CFR § 1308.12(d), while phentermine was assigned to Schedule IV, 21 CFR § 1308.-14(d). Again, along with the action of our own Commissioner, express recognition and acknowledgments that phentermine is to be regarded and treated quite differently from methamphetamine under the law.

Given this remarkable state of affairs, then, the penal consequences of possessing phentermine depended not on a legislative pronouncement of offenses and classification of penalties but on such uncertain conditions as the scholarship of a prosecuting attorney and availability of a willing expert witness. The liberty of a citizen should be and is intended under our form of government to be vouchsafed by firmer guarantees.

Profoundly distressed in these circumstances, we felt obliged to explore pertinent legislative history and, having done so, have discovered illuminating material that lights the way to our conclusion as to what the Legislature actually intended.

The Texas Controlled Substances Act was initiated in the legislative process by introduction of House Bill 447, 1973 House Journal 587. The Bill tracked a model controlled substances act that had been submitted to the several states by an agency of the Federal government; the model bill, in turn, followed the format and contained provisions similar to the Federal Controlled Substances Act. That is, for both regulatory and penal purposes all substances to be controlled were categorized into schedules. There were no penalty groups. Consistent with that concept, House Bill 447 proposed to repeal in its entirety the Texas Dangerous Drug Act, Article 726d, 1925 Penal Code.

Along the legislative way a complete substitute for the original bill was prepared and presented, 1973 House Journal 2857. For some reason not reflected in the legislative journals, the substitute, while retaining the schedule format without separate penalty groups, proposed to amend enumerated sections of Article 726d rather than repeal it entirely. Amendments to the Dangerous Drugs Act were in § 6.03 of the substitute bill under the heading “Conforming Amendments,” and for the first time appeared the language defining a dangerous drug by adding the phrase “that is not included in Schedules I through V” of the Controlled Substances Act, id. at 2886. Other amendments were made to provisions relating to marihuana and still further conforming amendments dealing with matters other than the Dangerous Drugs Act were added to § 6.03. Thus the substitute for H.B. 447 passed by the House of Representatives.

Senate consideration began with another substitute originating in its own jurisprudence committee. The Senate substitute in its § 6.15 proposed to repeal in its entirety the Dangerous Drugs Act. Also, it departed from the concept of characterizing substances into schedules for both regulatory and penal purposes, adding particularized penalty groups. In this fashion, all drugs became controlled substances to be regulated by schedules but penally proscribed by groups.

Each House, then, demonstrated clearly its desire and will that a legend drug such as phentermine be regulated and subject to criminal penalties under either the Controlled Substances Act or the Dangerous Drugs Act. The determination of which, originally to be made by the Legislature itself, was delegated to the Commissioner. Either way, though, prescribed unlawful acts were penal offenses with penalties of confinement, fine or both.

The Senate version was returned to the House where, on May 21, its members refused to concur with the Senate amendments. Conferees were appointed and the Conference Committee made its report May 28 — the eve of adjournment. As it came from conference, House Bill 447, a mix of both bills, contained provisions for penalty groups, as well as schedules. Section 6.03(a), however, remained untouched, continuing to read as it did when the Bill passed out of the House. In other words, having accepted the concept of schedules for regulatory purposes only and penalty groups for penal offenses, the Conference Committee did not modify the definition of dangerous drugs to comport with the new concept.

The primary rule of statutory construction is to ascertain and give effect to intent of the legislative body, Cousins v. Sovereign Camp, W.O.W., 120 Tex. 107, 35 S.W.2d 696. By definition, the Code Construction Act, Article 5429b-2, V.A.C.S., is not applicable to either the Controlled Substances Act or the Dangerous Drugs Act, but this Court has previously considered many of the matters enumerated in § 3.03 of the Act in construing a statute, as in Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963). We believe that resort to those construction aids is not precluded and have been guided by some of them in giving consideration to the matter, in coming to the conclusion we have. Thus we are impressed by the facts and circumstances outlined above which demonstrate conclusively that at all times before the Conference Committee report was written every legislative undertaking was clearly designed to continue penal proscriptions regarding dangerous drugs— whether included in a schedule or a penalty group or retained in remnants of the old Act. Stated another way, there is not the slightest suggestion in any of the legislative history of sentiment for abandoning criminal prohibitions regarding dangerous drugs. On that subject, we simply cannot bring ourselves to believe that members of the Conference Committee, being also legislative floor leaders in their respective Houses, would deliberately accomplish in conference something so contrary to the clear intent and purpose of each House. Indeed, their rules expressly restrict discussions and actions of conferees “solely to the matters in disagreement between the two Houses. »

We conclude, therefore, that in accepting the House approach of amending the Dangerous Drugs Act rather than repealing it outright, retention by the Conference Committee of § 6.03 phraseology of “schedules” rather than converting it to the Senate concept of “penalty groups” was purely an inadvertent oversight. Given the structure erected by the Conference Committee from the material supplied by each House, we are firm in the judgment that the true intent of both Houses and the Conference Committee is achieved by reading § 6.03(a) as it amends subsection (a), § 2, of old Article 726d, now Article 4476-14, Y.A.C.S., in terms of “penalty groups” rather than “schedules.”

Accordingly, phentermine, being a legend drug, and not then included in Penalty Groups 1 through 4 of the Controlled Substances Act, was criminally prohibited under the Dangerous Drugs Act, and its unlawful possession was a Class B misdemean- or as prescribed in § 15, Article 4476-14, V.A.C.S. The relief should be granted, the felony conviction in Cause No. 218,175 vacated and set aside and, the trial court being without jurisdiction, the indictment dismissed.

      . Effective May 2, 1979, Sec. 2(a) of the Dangerous Drugs Act was amended to read:
      “(a) The term ‘dangerous drug’ means any drug or device that is not included in Penalty Groups I through IV of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:
      “(1) Procaine, its salts, derivates, or compounds or mixtures thereof except ointments and creams for topical application containing not more than two and one-half percent (2'⅛ %) strength.
      “(2) Any drug or device which bears or is required to bear the legend: Caution: federal law prohibits dispensing without prescription, or the legend: Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.”
      This amendment does not alter our conclusion that phentermine is not a dangerous drug. Isomers of methamphetamine, of which phen-termine is one, are listed in Penalty Group One of the Controlled Substances Act, Sec. 4.02(b)(6),

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated. Further, use of the collective “we” and “our” was in a different original posture; they should now be read as “I” and “my.”

      . See Historical Note following Article 4476-14, V.A.C.S., formerly Article 726d, V.A.P.C., originally enacted by Acts 1959, 56 Leg., p. 923, ch. 425.

      . That is the date phentermine was added to Schedule IV of the Texas Controlled Substances Act by the Commissioner of Health after it had been added to Schedule IV of the Federal Drug Enforcement Administration List of Controlled Substances, published in the Federal Register on July 6, 1973. See Riddle v. State, 560 S.W.2d 642, footnote 2 at 644 (Tex.Cr.App.1977).

      . Article 4476-14, Section 15(a), V.A.C.S.

      . The ratio decidendi without which the conclusion could hardly have been reached is now unashamedly labeled by the majority as mere “dictum.” Yet in Lumberas the Court flatly states, “In Riddle we held that there is no longer any penalty provided for the possession or delivery of phentermine.”

      . A relative of methamphetamine is amphetamine which, in Schedule II, Section 2.04(d), is characterized, along with methamphetamine, as having a potential “for abuse associated with a stimulant effect on the central nervous system” but, unlike methamphetamine, is in Penalty Group 3, Section 4.02(d)(1)(A), the punishment for possession of which is as a Class A misdemeanor.

      . “(d) Stimulants. * * *

      (1) Amphetamine, its salts, optical isomers, and salts of its optical isomers
      12) Methamphetamine, its salts, isomers, and salts of its isomers . . . ”

      . “(d) Stimulants. * * *

      (1) . . .
      (2) Phentermine . .”

      . Is he under the impression that phentermine is still a dangerous drug or has he learned that it was placed in Schedule IV and stripped of penalties or is he alert to the Ashcraft ploy?

      . A witness prepared to opine that phenter-mine is an isomer of methamphetamine rather than an amphetamine-like drug.

      . Unjust, absurd or unreasonable consequences of reading and enforcing a penal statute literally are to be avoided in construing a statute, and courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which legislation was passed. Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963).

      .Our surmise is that proponents of the substitute deemed it appropriate to retain some measure of regulatory authority in the State Board of Pharmacy.

      . See, e. g., Harris County v. Suburban Utility Co., 547 S.W.2d 72, 74 (Tex.Civ.App. — Houston (1st Dist.) 1977, no writ).

      . “Section 3.03. In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the
      (1) object sought to be attained;
      (2) circumstances under which the statute was enacted;
      (3) legislative history;
      (4) common law or former statutory provisions, including laws upon the same or similar subjects;
      (5) consequences of a particular construction;
      (6) administrative construction of the statute; and
      (7) title, preamble, and emergency provision.”

      . “The rule is that in construing a statute its subject matter, reason and effect must be looked to and when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed. Baldridge v. State, 167 Tex.Cr.R. 519, 321 S.W.2d 309, and cases cited.”

      . House Rule 22, Section 8; Senate Rule 96, Texas Legislative Manual.

      . In this my view is fortified by a recent legislative expression of intent and purpose. H.B. 354, Acts 1979, 66th Leg., ch. 90, p. 163 was adopted almost unanimously April 29, 1979, thereafter approved by the Governor and became effective May 2, 1979. Its caption informs, inter alia, that it is amending “§ 2(a) . relating to the definition of dangerous drugs.” Its § 8 amends § 2(a), in part, to read as follows:
      “(a) The term ‘dangerous drug’ means any drug or device that is not included in Penalty Groups I through IV of the Texas Controlled Substances Act . . . ”
      I note use of Roman rather than Arabic numerals but attach no significance to it other than scrivener’s choice.

      . S.B. 322, Acts 1979, 66th Leg., ch. 598, p. 1278 is a comprehensive amendment of the Texas Controlled Substances Act. It finally passed the Legislature May 28, 1979, as did H.B. 1096 which appears to be exactly the same legislation. Section 4 amends Schedule IV to add in its subsection (d) as Item (2), phentermine and § 6 amends certain subsections of § 4.02, Texas Controlled Substances Act, by including in its subsection (d), Penalty Group 3(11) as Item (I), phentermine. Possession of phentermine is now under § 4.04(b)(3) a Class A misdemeanor. In tandem with H.B. 354, this legislation moots the opinions of this Court in such cases as Riddle, Lumberas, and Ashcratt, supra, and their progeny insofar as they are based on the proposition that phenter-mine was either not a dangerous drug or was a controlled substance in some penalty group of that Act.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Jessie HANEY, Appellant, v. The STATE of Texas, Appellee.
    No. 61730.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 17, 1979.
    Rehearing En Banc Denied Nov. 21,1979.

      Russell C. Busby, Amarillo, for appellant.
    Thomas A. Curtis, Dist. Atty., John Bryon Reese and Steve Schiwetz, Asst. Dist. Attys., Amarillo, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ODOM and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for possession of methamphetamine. The punishment was assessed at imprisonment for two years.

Appellant contends that the trial court erred in denying his motion to suppress the seized methamphetamine. After the trial court overruled the motion to suppress, appellant entered a plea of guilty and waived his right to a jury trial. In assessing punishment, the trial court accepted a sentencing recommendation by the prosecutor which had been personally agreed to by appellant. The issue of the legality of the search was raised by written motion filed prior to trial, however, and we therefore have jurisdiction to entertain this appeal. Art. 44.02, V.A.C.C.P.; Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978).

At the hearing on the guilty plea, appellant voluntarily took the stand and testified that every allegation in the indictment was true and correct, specifically affirming that he had knowingly and intentionally possessed a vial of methamphetamine on the date in question. A police officer also testified about the circumstances of the offense, and the vial of methamphetamine which had been the subject of the motion to suppress was introduced into evidence. After the state rested, the trial court questioned appellant further:

“THE COURT: Now that we’ve all been enlightened about how the tests were methamphetamines, you are still telling me that you had them in your pocket and that’s what it was?
“MR. HANEY: Yes, sir.
“THE COURT: All right. Mr. Haney, I’ll find you guilty as charged in the indictment. I believe the evidence is sufficient beyond a reasonable doubt to find you guilty if the offense of possession of a controlled substance, to-wit: methamphetamine.”

The record also affirmatively reflects that appellant’s plea and testimony were knowingly and voluntarily given.

In Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), the defendant entered a plea of guilty after his motion to suppress was overruled. The defendant received permission from the trial court to appeal. After his guilty plea was accepted by the trial court, the defendant took the stand and judicially confessed to the offense alleged in the indictment. The evidence seized under the challenged search warrant was not introduced. This Court held that nothing was presented for review; the seized evidence had not been introduced and the judicial confession was alone sufficient to support the conviction. Id. at 909 — 10, citing Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974).

The issue in this case then is: Where appellant has entered a valid judicial confession to the offense, can the introduction of illegally seized evidence in a guilty plea hearing be reversible error? The rationale of Ferguson, coupled with the law on the nature of harmless error and judicial confessions, compel a negative conclusion. We do not reach the issue of the validity of the search and seizure in this case and we do not imply any viewpoint on it; we posit the question hypothetically to fairly determine the materiality of the issue.

If lawfully obtained evidence of guilt is overwhelming, any constitutional error will generally be considered harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). This doctrine has been specifically applied to the introduction of wrongfully obtained evidence. E. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976). The cases have not defined what evidence of guilt should be considered “overwhelming”; but the Supreme Court has held that the introduction of a validly obtained complete confession does meet this standard and renders constitutional error harmless. See Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

This Court has repeatedly emphasized that a judicial confession to the allegations of an indictment will alone be sufficient to support a conviction on a guilty plea. Cooper v. State, 573 S.W.2d 533 (Tex.Cr.App.1978); Potts v. State, 571 S.W.2d 180 (Tex.Cr.App.1978); Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Henderson v. State, 519 S.W.2d 654 (Tex.Cr.App.1975). In this case appellant took the stand and testified that he committed the offense and he repeated this testimony when interrogated by the trial judge. It is difficult to imagine any evidence of guilt that could be more overwhelming than a voluntary admission by the accused on the stand, after full warning by the trial court, that he committed the offense as charged. In the absence of any evidence that undermines or conflicts with the credibility of such an admission, a judicial confession will nullify the prejudicial effect of the introduction of illegally obtained evidence in the guilty plea hearing.

The evidence is sufficient to support the guilty plea without reference to the contraband alleged to be improperly admitted. Art. 1.15, V.A.C.C.P. “If the guilty plea is supported by evidence (see Art. 1.15, supra) independently of the matter contested in the pretrial motion, then any erroneous ruling on that motion does not vitiate the conviction.” Ferguson v. State, 571 S.W.2d at 910. No reversible error was committed here.

The judgment is affirmed.


author: TOM G. DAVIS, Judge. DOUGLAS, Judge,

text:
    Jerry Michael SELLERS, Appellant, v. The STATE of Texas, Appellee.
    No. 57498.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 24, 1979.
    Rehearing En Banc Denied Nov. 21,1979.

      Malcolm Dade and Richard A. Anderson, Dallas, on appeal only, for appellant.
    Jerry Spencer Davis, Dist. Atty., Green-ville, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. V.T.C.A. Penal Code, Sec. 19.02. Punishment was assessed by the jury at 99 years.

Among the grounds of error advanced by appellant is the contention that the trial court erred in admitting the testimony of Deputy Merle Capwell relative to a statement he heard one Shirley Watson make in Utah.

The indictment charged that the appellant caused the death of his wife “by acute meperidine intoxication in some manner, way, or means to the Grand Jury unknown.” Her body was found on October 5, 1974, in a shallow grave near a lake in Hunt County. We would first note that appellant admitted to having buried the body, but denied having caused her death.

On August 20, 1974, the day of his wife’s death, appellant went to John Peak’s home to borrow the keys to Peak’s trailer house. Appellant stated that he wanted to use the trailer house for a weekend fishing trip.

Appellant testified that when he returned home from Peak’s house he found his wife dead, apparently from an overdose of Demerol [meperidine]. According to his testimony, he first became hysterical, and later panicked when he feared that he would be blamed for the death. He stated that he first covered the face of the deceased with a washcloth and then wrapped the body in a blanket. He then tied the blanket with telephone wire and placed it in the trunk of his car.

Appellant admitted that he told relatives of his wife a fabricated story to cover her disappearance. These relatives testified that they were told that the appellant’s wife had “run off” with a young man, and that the appellant did not know where she had gone. These relatives testified regarding the relationship between the deceased and the appellant, and threats made by the appellant to kill the deceased.

On October 5, 1974, John Peak found a shallow grave near his trailer house at the lake. This grave contained the body of the deceased, still wrapped in the blanket.

The body was taken to Dallas for an autopsy to be performed by Dr. Ross Zum-walt, a Dallas County Medical Examiner. Dr. Zumwalt testified that the body had been buried from two weeks to three months. He found the cause of death to be acute meperidine (Demerol) intoxication. Although he determined that the drug had been orally ingested, he could not determine the manner or means by which the drug had been administered.

Dr. Bill Lowery, a toxicologist, testified that the autopsy on the deceased revealed no signs of Chloroform or Chloral Hydrate. He stated that both these chemicals were hypnotics and that they could induce sleep or even cause death if sufficient quantities were inhaled, ingested, or injected.

Dr. Lowery also performed tests on the washcloth found taped to the deceased’s face. The purpose of these tests was to determine whether Chloroform or Chloral Hydrate had ever been present on the washcloth. The results of these tests were negative. In response to a hypothetical question from the State, Dr. Lowery testified that it is possible that no residue would be found even if these chemicals had been present.

The State introduced a bottle of Chloroform and a bottle of Chloral Hydrate found in the storehouse behind appellant’s residence. Appellant had mentioned these bottles of chemicals in a letter sent by the appellant to a friend. The letter was entered into evidence.

After the body of the deceased was discovered a warrant was issued for the arrest of the appellant. It was learned from friends of the appellant that he was in Utah. Utah law enforcement officials were contacted regarding the arrest of the appellant and a subsequent search for items thought to be in the appellant’s possession. Merle Capwell, a Duchane County, Utah, deputy sheriff, testified that he executed a search warrant on appellant’s trailer house in Utah on October 9, 1974. Appellant was not present at the time the search was conducted. From appellant’s residence Capwell went to a nearby trailer house belonging to Shirley Watson. The purpose of going to Watson’s home was to take custody of the appellant’s children.

Watson, appellant’s landlord in Utah, apparently looked after appellant’s children while appellant was working. The officer found appellant’s children at Watson’s trailer.

Capwell and three other officers who had executed the warrant were admitted to Watson’s home and invited to sit at the kitchen table. According to Capwell, Watson became upset when she was told that the officers had come for the children and some guns, and ordered the officers off her property.

Watson and the officers argued for about 30 minutes. During this time Watson made phone calls regarding Capwell’s request to the sheriff of the county in which Watson’s trailer house was located. Sometime during the hour that the officers were in her home Watson made a call to her attorney. Capwell could not remember whether this call was made before or after Watson made the statement that is the basis of appellant’s ground of error.

During this initial 30 minutes, Capwell repeatedly told Watson that he wanted the children and the guns. Watson repeatedly refused to allow the officers to take either. Capwell testified that during this proceeding Watson was mad, excited, upset, vehement and used “rough” language.

Carla Sellers, the appellant’s 16-year-old daughter, testified that she was in the next room of the trailer house when Capwell came to take custody of her and her brother. She stated that the officers arrived at approximately midnight. She could hear voices but could not make out the content of the conversation.

According to this witness, she heard no shouting and the tone of the conversation was hushed. Watson seemed upset, but not angry or extremely upset. She described the general demeanor of the parties to the conversation as friendly.

Capwell testified that after 30 minutes of the discussion, Watson made mention about their wanting the guns and stated, “The woman was not shot, she was suffocated.” Capwell was allowed to testify as to this statement in the presence of the jury. Appellant objected to this testimony as hearsay. Watson did not testify.

The State maintains that Watson’s statement was an exception to the hearsay rule as either a spontaneous utterance or an admission against Watson’s penal interest.

The right to cross-examination of witnesses, insofar as necessary to effectuate the right to confrontation, is guaranteed by both U.S.Const., Amend. VI and Tex.Const., Art. I, Sec. 10. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). This right to cross-examine witnesses is not absolute, however, and can be denied when the evidence bears the indicia of reliability to ensure the integrity of the fact finding process. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Coulter v. State, Tex.Cr.App., 494 S.W.2d 876; Tezeno v. State, Tex.Cr.App., 484 S.W.2d 374.

This Court has found the requisite indicia of reliability to be present when the hearsay statement is shown to be a spontaneous utterance. Tezeno v. State, supra. A spontaneous utterance is an exception to the hearsay rule if:

(1) “the statement is the product of an occurrence startling enough to produce a state of nervous excitement which would render the utterance spontaneous and unreflecting.”
(2) “the utterance is made before there is time to contrive and misrepresent, that is, the state of excitement produced by the startling event must still dominate the reflective powers of the mind.”
(3) “the utterance must relate to the circumstances of the occurrence preceding it.”

Tezeno v. State, 484 S.W.2d at 378. 1 C. McCormick and R. Ray, Texas Practice, Evidence, Secs. 913-24 (1956) (hereinafter, McCormick and Ray). Norwood v. State, Tex.Cr.App., 486 S.W.2d 776.

It is not necessary that each of these requisites be independently and clearly shown. The focus of the inquiry is whether the cumulative effect of the three requisites combined is sufficient to show the reliability of the statement. See Coulter v. State, supra; Tezeno v. State, supra.

The event which precipitated this statement was such as could have produced the requisite “nervous excitement” to render this statement spontaneous. A midnight visit from police officers to take custody of children left in a person’s charge is a startling event. Watson’s reluctance to give over custody and continued opposition support a finding that the event was one that unsettled her state of mind.

This statement was not made at the time of the officers’ arrival, however. The record reflects that the statement was made only after numerous demands for the children and guns, and after refusals by Watson. Also relevant is the fact that Watson made calls to the sheriff regarding this matter, and might have consulted with her lawyer before making this statement. Whatever startling effect the officers’ initial demand could have had is attenuated by these actions. This evidence does not support a finding that the startling event still dominated Watson’s reflective powers, nor that no time to contrive or misrepresent had passed.

Finally, the statement does not relate to the event preceding it. In the present case the startling event was the officers’ demand for the children and guns. The statement concerns the cause of death of appellant’s wife. This third requirement has been relaxed, however, in this Court’s decision in Tezeno v. State, supra.

In Tezeno, the defendant was arrested in a restaurant with a female companion. A pistol was found in the female’s purse. The arresting officer, over appellant’s objection, was permitted to testify that the woman told him the defendant had passed her the pistol when the officer entered. Thus, the startling event was either the arrest or finding the pistol, while the spontaneous utterance concerned a prior event and did not describe the startling event or state the cause of the startling event. The Court found the indicia of reliability sufficient. Tezeno v. State, 484 S.W.2d at 379.

It should be noted that the event described in Tezeno by the spontaneous utterance was within the personal knowledge of the declarant, and had occurred close in time to the statement.

In the present case, the statement involved an event that had occurred three months before. More importantly, it is clear from the record that Watson could have had no personal knowledge of the event described, the death of the appellant’s wife. The absence of these factors, coupled with the fact that the statement does not concern the startling event, weighs heavily in determining the indicia of reliability of this statement.

We find that because of the reasons set out above the statement does not qualify under the spontaneous utterance exception to the hearsay rule and further lacks the indicia of reliability necessary to supplant the absence of the historical criteria for the exception.

The State’s argument that this statement was admissible as an admission against the declarant’s penal interest is without merit. Regardless of the admissibility of such a statement as an exception to the hearsay rule, the statement does not on its face show to be against Watson’s penal interest. See, Ramirez v. State, Tex.Cr.App., 543 S.W.2d 631; Munoz v. State, Tex.Cr.App., 435 S.W.2d 500; McCormick and Ray, Secs. 1005-7. The statement is not an admission of guilt, nor does it show Watson committed any crime. The State’s argument that this statement shows that she was harboring a fugitive is at best tenuous.

We find that the statement was hearsay and was not admissible.

The State further maintains that even if admission of this statement was error, the error was harmless. We cannot agree.

The State’s case consisted of circumstantial evidence that the appellant caused the deceased’s death. The only logical conclusion the jurors could have drawn from the hearsay statement was that Watson was referring to the death of the deceased. It would follow that the jurors would conclude that Watson was alluding to the manner or means by which appellant caused her death.

We find that the appellant was harmed by the admission of the hearsay testimony.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

Appellant was convicted for the murder of his wife.

The majority reverses this conviction on the grounds that a hearsay statement was improperly admitted. The admission of that statement was harmless error.

Merle Capwell, deputy sheriff of Duchane County, Utah, testified that he executed a search warrant on appellant’s trailer home in Utah. After the search, he went to a neighboring trailer home belonging to Shirley Watson in order to pick up Sellers’ children. Capwell left and returned some time later. It was at this point that Watson stated, “The woman was not shot, she was suffocated.” It is this statement that the majority finds harmful.

The majority reasons that because of the statement the jury concluded that Shirley Watson was “alluding to the manner or means by which appellant caused her death,” and, inferentially, that the source of this knowledge was the appellant. A closer analysis of the evidence leads to a different conclusion.

First, there has been no showing by appellant that the source of that information was through him. Carla Sellers, appellant’s daughter, testified that she learned of her mother’s death on October 8, 1974, from various phone calls to Garland, while the hearsay statement was made on October 9, 1974. Four witnesses for the State testified that the deceased’s body was found with a washcloth taped over her face. The body was found on October 5, 1974. It requires no stretch of the imagination to infer from this chain of events that the authorities first suspected suffocation as the cause of death and that this information was communicated to Shirley Watson through Carla Sellers after learning of the death through her friends in Garland. The statement in no way connects appellant with the homicide.

Further, the cause of death, as testified to by Dr. Ross Zumwalt, a Dallas County medical examiner, was determined to be acute meperidine intoxication or, more simply, an overdose of Demerol. The evidence revealed that Sellers had been prescribed Demerol and that a supply of the drug was present in his house at the time of his wife’s death. The jury could easily have believed that Mrs. Sellers died at her husband’s hands through the forced ingestion of Demerol. In view of the other evidence of appellant’s guilt, the admission of the hearsay statement was not reversible error.

For these reasons, the judgment should be affirmed.

      . It is never explicitly explained who “was suffocated.” It is clear that the statement was offered to infer that the deceased was “suffocated” during the events that preceded her death.


author: DOUGLAS, Judge.

text:
    Ronnie Lee WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 58881.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 12, 1979.
    Rehearing Denied Jan. 23, 1980.

      Woody R. Denson, Houston, for appellant; Cathy Young Jones, Houston, of counsel.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann, and Terry G. Wilson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Walker was convicted of aggravated rape. The jury, after finding that appellant had previously been convicted of robbery by firearms, assessed punishment at ninety-nine years.

Appellant now contends that the evidence adduced at trial was insufficient to support the conviction.

The complainant identified appellant as the man who accosted her at gunpoint on the street as she walked home from the market, took her billfold, forced her to admit him to her apartment, forced her to remove her clothing, tied her hands behind her back, and raped her. Complainant testified to an act of penetration, that she was not married to appellant, and that she did not consent to intercourse.

Appellant now contends that complainant’s failure to report the incident to the police until some two weeks after the incident, when complainant heard a news report that a man suspected of committing rapes in her area of the city was in custody, complainant’s failure to preserve as evidence the T-shirt which she had been wearing and with which appellant had wiped himself off after the rape, and complainant’s failure to be examined by a doctor after the rape renders the complainant’s testimony insufficient to support appellant’s conviction. The contention is without merit.

The jury was able to evaluate the credibility of the complainant. The complainant’s testimony was sufficient to support their verdict.

Walker next contends that the admission of evidence relating to seven extraneous transactions was error.

In Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), we said:

“This court has consistently held that an accused is entitled to be tried on the accusation made in the state’s pleading and that he should not be tried for some collateral crime or for being a criminal generally. E. g. Rodriguez v. State, Tex.Cr.App., 1972, 486 S.W.2d 355; Ford v. State, Tex.Cr.App., 484 S.W.2d 727; Jones v. State, Tex.Cr.App., 481 S.W.2d 900; Jones v. State, 479 S.W.2d 307; Powell v. State, Tex.Cr.App., 478 S.W.2d 95; Chandler v. State, Tex.Cr.App., 417 S.W.2d 68; Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836. Evidence of other crimes committed by the accused may be admitted, however, where such evidence is shown to be both material and relevant to a contested issue in the case. E. g., Grayson v. State, Tex.Cr.App., 481 S.W.2d 859; Jones v. State, Tex.Cr.App., 481 S.W.2d 900; Howard v. State, 37 Tex.Cr.R. 494, 36 S.W. 475.”

Six of the extraneous transactions were offered as tending to show the identity of appellant as the assailant in the case at bar. Appellant contends the issue of identity was not raised; the State contends that the manner and effect of the cross-examination of the complainant raised the issue.

Cross-examination of State’s witnesses can raise the issue of identity. Ferrell v. State, 429 S.W.2d 901 (Tex.Cr.App.1968); Simmons v. State, 457 S.W.2d 570 (Tex.Cr.App.1970); Gillon v. State, 492 S.W.2d 948 (Tex.Cr.App.1973). But where cross-examination fails to impeach the witness, Rogers v. State, 484 S.W.2d 708 (Tex.Cr.App.1972), Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972), or only one of several witnesses is impeached in his identification, Redd v. State, 522 S.W.2d 890 (Tex.Cr.App.1975); Hickombottom v. State, 486 S.W.2d 951 (Tex.Cr.App.1972), cross-examination of a State’s witness will not in itself support the introduction of extraneous transactions on the issue of identity.

The complainant was not impeached in any material detail of her testimony by cross-examination by appellant’s counsel. The effect of the cross-examination was insufficient to raise the issue of identity. Rogers v. State, supra. The manner of cross-examination, however, is another story-

During the cross-examination of the complainant, the following colloquy occurred:

“Q. Let me ask you something: If the person who assaulted you — would you stand up, Mr. Walker? Would you roll your sleeves up? Would you step over here, Mr. Walker? If the man who assaulted you had tattoos all over his arm — may the record reflect on his left arm, on the left forearm, there’s a visible tattoo roughly four or five inches long that says ‘Black Rose.’ On his left hand there is a heart shaped approximately one inch by one and a half inches with an arrow going through it. Below that is a distinguishable B plus R and above that is a line that’s roughly two and a half inches. It looks like it, but it’s not a scar. It’s a tattoo on the left four fingers. There are four tattoos that have the letters L-o-v-e. Now, on the right hand there is a visible tattoo approximately two and a half, three inches, maybe longer, tattoo that says ‘Brenda.’ Now, I also want to ask you about — you didn’t mention anything visible about his face. Anything specific? You say you didn’t remember anything, yet you did give some other details. You had a lot of time to describe the scene and observe it. The defendant, for the record, has a scar on his right lower lip which is quite noticeable. It’s roughly—
“MR. WILSON: Your Honor, I object to counsel’s editorial comments.
“THE COURT: Sustained as to that.
“MR. DENSON: Well, for the record Your Honor, there is a scar on the left right cheek that counsel — is very visible.
“MR. WILSON: Please the Court, I again to (sic) object to counsel testifying. He’ll have his opportunity if he wants to.
“MR. DENSON: At this time, Your Hon- or, please the Court, I would like to have Mr. Walker stand over by the jury and let the jury see him and they can make their conclusion at a later time. Mr. Walker, if you would, put your hand out. There’s a scar on the right side of the lip. You can take your chair now.
“Q. And in your description to the police department and your description here on the stand today, you didn’t mention anything about that tooth or any visible scars on the face or anything of that nature, did you?
“A. I wasn’t looking at his hands.
“Q. I see. What were you looking at?
“A. I was looking at his face.
“Q. And you didn’t notice — did you see the scar that I spoke of?
“A. No. I didn’t.
“Q. You can’t see it from here?
“A. No.
“Q. Mr. Walker, would you stand up, please. When does it become visible to you? Can you see it at this point.
"A. No. I can’t.
“Q. Still can’t see it? Can you see it at this point?
“A. I can see it a little bit. Yes.
“Q. The person that assaulted you obviously was much closer than this?
“A. Yes.
“Q. You didn’t notice the scar then? Sit down, please.”

In Lusk v. State, 511 S.W.2d 279 (Tex.Cr.App.1974), a defense witness testified that the defendant walked with a limp. The complainant testified that she saw no limp. We held that the testimony had raised the issue of identity. The demonstration of defense counsel in the case at bar was the functional equivalent of the witness’ testimony in Lusk, and we hold that the issue of identity was raised sufficiently to allow the introduction of extraneous offenses relevant to that issue.

Walker contends that even if identity was raised as an issue, the extraneous transactions or offenses proved lacked common distinguishing characteristics.

In Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1974), we said:

“The rule is that evidence of another crime is admissible to prove identity if identity is in issue and if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. See Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972); Lancaster v. State, 82 Tex.Cr.R. 473, 200 S.W. 167 (1918). We reiterate: (1) identity must be in issue; and (2) there must be distinguishing characteristics common to both the extraneous offense and .the offense for which the accused is on trial.”

In Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974), affirming the use of extraneous offenses to prove identity, we said:

“This court has had occasion in the past to note that evidence of an extraneous offense is admissible to prove identity, when identity is an issue, only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. See Ford v. State, 484 S.W.2d 727, 729 (Tex.Cr.App.1972).
“ ‘. . . That is, if it is established that the accused committed an extraneous offense, and that there is some distinguishing characteristic common both to it and the offense for which the accused is on trial, then an inference may be drawn that the accused was the person who committed the primary offense. . . .’ (Emphasis supplied)
“In the instant case both offenses were robberies committed at gunpoint in Dallas three days apart, while appellant, identified as the perpetrator of both, was aided by a confederate. In Ford v. State, supra, it was pointed out the common distinguishing characteristic may be the proximity in time and place or the common mode of the commission of the offenses. It would appear that both are present here.”

The common characteristics in the instant case are more compelling than those in Ransom. All the transactions took place at night, in the same area, within a period of one month. In each case appellant was alone and carried a small gun. The victims were tied in a similar manner, and robbery preceded rape in the four instances in which the victim was raped. Appellant took all coins but pennies from the victims who had coins. The admission of the six extraneous transactions which amounted to offenses was not error.

The seventh extraneous transaction was offered for a different purpose. Harris County sheriff’s deputies testified that appellant attempted to escape while being detained for trial. Evidence of flight or escape is admissible as implying knowledge of guilt. Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974). The admission of evidence of appellant’s attempted escape was not error.

Walker next contends that his arrest was unlawful and that evidence seized at the time of his arrest or in the subsequent inventory search of his car, including the handgun identified by the complainant as similar to the one exhibited to her by Walker, was erroneously admitted.

At the hearing on appellant’s motion to suppress the evidence seized at his arrest, Officer M. A. Martin testified that on March 29, 1977, he and his partner were patrolling the Montrose-Westheimer area when they saw appellant walking on the street. Appellant fit the description of a suspect wanted in connection with several rapes in the patrol area, and his clothing fit the description given by some of the victims.

As they approached appellant, the officers could see that a dark ski cap was folded in one pocket of his pants, and a brown leather-type jacket that appellant was wearing was buttoned to the top although it was a warm and humid night. The description of the suspect which the officers had been given mentioned both a brown leather jacket and a dark ski cap, as well as emphasizing that the suspect was said to be armed.

Officer Martin testified that he and his partner intended to interview the appellant to determine whether he was the suspect who had been described to them, and that, because the suspect was said to be armed, his partner patted the appellant down to insure the officers’ safety.

The pat-down search produced a .38 caliber revolver and appellant was then arrested. The evidence complained of was found either upon appellant’s person or in an inventory search of his car, which had been parked on the street and which was impounded subsequent to the arrest.

Walker testified that he had not been walking but was in his car when he was stopped, and that the pistol was in the glove compartment.

It was for the trial court, as the sole finder of facts in the suppression hearing, to determine whether Officer Martin’s or Walker’s version of the arrest was true. The trial court determined that the arrest was lawful.

Officer Martin was able to point to articulable facts which led him and his partner reasonably to suspect that Walker might be armed and dangerous. The pat-down search was within the pale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Admission of the exhibits complained of was not error.

Appellant’s final contention is that it was error to admit the in-court identification of appellant because the lineup procedure at which complainant and others identified appellant was unfair and tainted their in-court identification.

Five police detectives testified to the procedures used at the three lineups where appellant was identified. Their testimony was that, although the victims were allowed to mingle and talk before the procedure began, no talking was permitted once the subjects were on view. They further testified that each victim was interviewed separately about possible identification, that none of the victims were told that their assailant was probably in the lineup, and that the five persons on view in addition to appellant were all reasonably close to appellant in appearance. Appellant was allowed to choose his own place in each lineup. No error is shown.

Walker contends, citing Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), he had a right to the presence of an attorney at the lineups. No waiver of counsel was signed. But appellant had not been charged by information or indictment, nor arraigned, prior to the lineups. The contention is without merit.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Samuel B. TROSTLE, Appellant, v. The STATE of Texas, Appellee.
    No. 58369.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 12, 1979.
    Rehearing En Banc Denied Jan. 16, 1980.

      Percy Foreman and Dick DeGuerin, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Michael Kuhn and Charles C. Cate, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. After the jury found appellant guilty, the court assessed punishment at fifty years.

In his first ground of error, appellant challenges the sufficiency of the evidence to support the conviction. The State relied on circumstantial evidence.

Peter Dzwonczyk testified that he and his wife went to the home of the deceased, Fannie Kimball, at 5:30 p. m. on October 26, 1976. He stated that the deceased ran a boarding house on Austin St. in Houston. The deceased, seventy-three years old at the time of her death, had five tenants upstairs and a garage apartment at the rear of the house. The deceased lived in the downstairs portion of the house. Appellant lived upstairs as a tenant.

Dzwonczyk related that he knocked on the door of the home and no one answered. However, he was able to hear moaning sounds from the kitchen area. Once he gained access to the house, he found the deceased lying in a pool, of blood on the floor of the kitchen. Dzwonczyk stated that blood was splattered on the walls of the kitchen and that the left side of the deceased’s head was “smashed in.” With the help of a tenant, Clifton Harris, the police and an ambulance were summoned to the scene.

The deceased was taken to Ben Taub Hospital where she eventually died on November 2, 1976, having never regained consciousness. The parties stipulated that the deceased died as a result of blunt trauma to the head. Dr. Joseph Jachimczyk, Chief Medical Examiner for Harris County, testified that the injuries inflicted on the deceased were consistent with having been beaten several times on the head with a hammer.

Anna Lorenz testified that she lived next door to the deceased. She stated that appellant and the deceased had reached an agreement whereby in exchange for repair and remodeling work, appellant was given room and board.

Lorenz stated that on the morning of the offense, she was at the deceased’s home when appellant came into the room and told the deceased that she was a “liar, thief, and hypocrite.”

Birdie Guy testified that she worked as a maid for the deceased from 10:00 a. m. until 5:00 p. m. on the day of the offense. Guy stated that while she was at work that day, she did not see any of the tenants. She stated that she did not go into appellant’s room on the day of the offense. The last time Guy saw the deceased, she was sitting in a chair shelling pecans. It was later shown that the deceased would often use a hammer whenever she shelled pecans.

Officer T. R. Cunningham, of the Houston Police Department, testified that he arrived at the deceased’s home at 6:10 p. m. He stated that approximately thirty minutes later, appellant came downstairs from his room and walked out the door without saying anything to the police officers in the house. Cunningham then told appellant that he would have to stay at the house until the investigation had been completed.

Appellant then came back into the house and sat down at the kitchen table. Cunningham noticed what he described as two fresh scratches on appellant’s face which were still bleeding. Appellant was dressed in fresh clothing and appeared to have recently shaved and showered. Appellant was wearing a wig.

Cunningham then saw a hammer in a sink located in the kitchen. Water was running from the faucet onto the hammer. Officer M. L. Williams, of the Houston Police Department, testified that small pieces of what he thought to be human flesh were in the sink. He further stated that the hammer appeared to have blood on it and that a substance resembling watered down blood was running down the drain.

Approximately one and one half hours later, Officer J. H. Binford, of the Houston Police Department, obtained appellant’s consent to search his room upstairs. Inside the room, Binford found two shirts which appeared to have blood smeared on them. He also found a pair of leather gloves, one of which was moist with a substance Bin-ford believed to be blood.

The evidence gathered at the scene of the offense was then turned over to Robert Warkentin, a chemist employed by the Houston Police Department. Warkentin testified that he performed a modified ben-zidine test on the hammer, shirts, and gloves. The test result was positive for the presence of blood on these items. He further stated that hair was found on the hammer and one of the shirts. One of the hairs taken from the shirt had characteristics identical to a hair sample taken from the deceased.

Two days later, Warkentin accompanied officers to appellant’s room. Inside the room, Warkentin found a pair of shoes which tested positive for the presence of blood. Warkentin stated that the substance on the shoes had dried and formed a crust along a crease in the shoe. He related that the fact that the crust was still intact at a flexing point for the shoe indicated that the shoes had not been worn since the substance dried on them. Evidence at trial established that appellant had been incarcerated in the Harris County Jail since the time of his arrest on October 26, 1977.

On December 1,1977, Warkentin received two bed sheets which had been found in appellant’s room by a woman who was helping with the estate of the deceased. Wark-entin testified that a large smear of dried blood was found at one end of one of the sheets.

Appellant testified that he moved into the home of the deceased in June of 1976 after the deceased agreed to provide room and board for him if he would do various repair and remodeling jobs around the house. In doing these remodeling jobs, appellant related that he would sometimes use the deceased’s tools. He stated that he had been up in his room the entire day of the offense except for a brief trip to the store to call in sick for work. Appellant worked part-time as a cab driver for the Yellow Cab Company in Houston.

Appellant stated that when he was detained by Officer Cunningham, he had just finished shaving and had cut his face. He related that the blood on the shirts was the result of wiping his face off after he cut himself. Appellant explained that the gloves found in his room had grease on them. He further stated that the shoes which Warkentin had examined were often worn in the garage of Yellow Cab while he was at work.

Lastly, appellant denied having had an argument with the deceased in the presence of Lorenz. He related that he knew nothing about the manner in which the deceased had been murdered.

Robert Weir, a chemist, was called as a witness by appellant. Weir stated that he was familiar with the benzidine test which Warkentin had performed on the various items of physical evidence. Weir stated that in his opinion, the test was not conclusive for the presence of blood on an object. He related that substances such as lead oxide found in gasoline could cause a false. reaction in the test and indicate the presence of blood.

On cross-examination, Weir stated that the modified benzidine test which Warken-tin had used is approximately 30 percent more accurate than the standard test to which he was referring on direct examination. He further stated that he had never known of gasoline to dry and form a crust or flaky substance such as found on appellant’s shoes. Appellant did not have Weir examine the physical evidence found in his room, thus, Weir could not state that Wark-entin’s opinion that the objects had blood on them was erroneous.

A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant. Schershel v. State, Tex.Cr.App., 575 S.W.2d 548; Bryant v. State, Tex.Cr.App., 574 S.W.2d 109. Thus, proof which amounts only to a strong suspicion or mere probability is insufficient. Ford v. State, Tex.Cr.App., 571 S.W.2d 924. However, every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Earnhart v. State, Tex.Cr.App., 575 S.W.2d 551.

Appellant maintains that based on the evidence, there is merely a possibility or suspicion that he committed the offense. He relies on Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481; Flores v. State, Tex.Cr.App., 551 S.W.2d 364; Easley v. State, Tex.Cr.App., 529 S.W.2d 522. In both Stogsdill and Flores, the Court found the evidence insufficient to support the convictions. In both cases, there was no showing that the defendants were at or near the scene where the crimes took place. In both cases, the defendants were never shown to have been in possession or near the murder weapons. In Flores, the State merely proved that the defendant was in possession of the deceased’s car prior to and after his death. In Stogsdill, the State attempted to connect the defendant with the offense by tire track comparisons; however, those comparisons merely showed the tracks to be similar in nature. Likewise, in Easley, the defendant was not connected with the murder weapon. Nor was the defendant in Easley shown to have been at the scene where the victim was kidnapped on the day of the offense.

In the instant case, appellant testified that he was in the house at the time the deceased was killed. It was shown that appellant had a confrontation with the deceased the morning of her death.

Although appellant had lived in the home for four months and worked for the deceased, he merely walked out of the house without saying a word when several police officers, news media, and ambulance attendants were in the house or front yard. He had recently showered following an offense which was shown to have splattered a great deal of blood during its commission. He had what were identified to be fresh scratch marks on the side of his face.

Results of a test on articles of clothing found in appellant’s room were positive for the presence of blood. Although appellant explained the blood on his shirts and the cuts on his face, he could not explain the presence of blood on the sheets found in his room. He stated that he had never seen the sheets before.

The test run on appellant’s shoes was positive for the presence of blood. Although appellant’s chemist stated that the test may have given a false reaction because of gasoline on the shoes, he could not explain the crusty or flaky quality of the substance found on top of the shoe. Lastly, the glove found in appellant’s room approximately two hours after the offense was moist with a substance which later tested positive for blood. Appellant testified that grease was on the glove.

Considering the record as a whole and viewing it in the light most favorable to the verdict, we find the circumstantial evidence sufficient to support the conviction. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in admitting hearsay evidence. He maintains that statements made by the deceased to various witnesses concerning her intention to tell appellant to move on the day of the offense and her fear of appellant were inadmissible. The trial court ruled that such statements would be admissible if made to the witnesses by the deceased on the day of her death.

Anna Lorenz testified that after appellant called the deceased a “liar, thief, and hypocrite,” the deceased said that she was going to tell appellant to move out of the house because she was dissatisfied with his work on the house. Birdie Guy, the deceased’s maid, testified that the deceased had expressed her intention of telling appellant that he had to move.

Edna Porche testified that on the morning of the offense, she talked to the deceased. At that time, the deceased told her that appellant was working part-time as a cab driver and no longer doing work around her house. She told Porche that she was scared of appellant, but was going to ask him to move out that day.

Mildred Hurst testified that the deceased had been her sister-in-law. Hurst stated that on the afternoon of her death, the deceased told her that she was going to tell appellant to either start paying rent or to move out of the house.

Appellant’s third through sixth grounds of error challenge the admissibility of the testimony given by witnesses Lorenz, Guy, Porche, and Hurst. He maintains that their testimony to the effect that the deceased intended to meet with appellant and tell him to move was hearsay. None of these statements were shown to have been made in the presence of appellant.

In Corbett v. State, Tex.Cr.App., 493 S.W.2d 940, the Court considered the admissibility of a statement made by the deceased to his wife on the day of the offense. The deceased’s wife was allowed to testify over a hearsay objection that the deceased told her on the morning of his death that he was going to see the defendant in Freeport about some checks the defendant had written on the deceased’s checking account. In finding the testimony to be admissible, the Court noted:

“In Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201, the mother of the deceased testified that deceased said at 9:00 P.M. that she was going to meet defendant at a particular location, and that defendant was going to take her to Nolanville so she could board a train for San Angelo. The deceased departed the mother’s home at about 11:00 P.M., and her body was found nine days later in a river near the point of her rendezvous with the defendant. With respect to the mother’s testimony, this Court said:
“ ‘We think that statements made by deceased to her mother while she was packing her clothes and dressing, preparatory to leaving home on the night of her disappearance, in addition to the reasons given in the original opinion, were res gestae of such acts directly explanatory thereof, and admissible in evidence.’ 215 S.W. at 213.
“In Chance v. State, 125 Tex.Cr.R. 318, 68 S.W.2d 212, this Court again cited authorities supporting the admissibility of hearsay statements made out of the presence of the accused as a part of the res gestae of the transaction between the declarant and the accused. The declarant, in Chance, was, as in Porter and the instant case, the victim of murder. This Court said:
“ ‘Deceased announced his intention of going, had a taxi called to take him . and the testimony of his statement as to who he was going to see was admissible as showing the motive of his going, and as fixing its destination and character, and same became thus a proper part of the res gestae of such going.’ 68 S.W.2d at 213.
“In the instant case, the testimony by the wife of the deceased was admissible as part of the res gestae and explanatory of her husband’s meeting with the appellant on January 26, 1970. See Marshall v. State, Tex.Cr.App., 384 S.W.2d 893; Newton v. State, 147 Tex.Cr.R. 400, 180 S.W.2d 946 (on motion for rehearing).”

Likewise, in the instant case, we find that the testimony was admissible as part of the res gestae and explanatory of the meeting which the deceased planned to have with appellant. We find that the trial court, did not err in ruling such testimony to be admissible. Appellant’s second through sixth grounds of error are without merit.

In grounds of error seven through ten, appellant maintains that the court’s charge to the jury is fundamentally defective. He contends that the charge authorizes a conviction on theories not pled in the information, that the charge is not limited to the conduct alleged in the information, that there is a fatal variance between the charge and the information, and that the charge fails to apply the law to the facts of the case. All of these contentions center around the court’s failure to require the jury to find that the death of the deceased was caused by “beating her on the head with a hammer.” These contentions are raised for the first time on appeal.

Appellant waived prosecution by indictment and was charged by information. The information alleges in part that appellant:

“. . . intentionally and knowingly caused the death of Fannie Kimball by beating her on the head with a hammer.”

The portion of the court’s charge which applies the law to the facts of the offense recites:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Samuel B. Trostle, as alleged in the information in Harris County, Texas, on or about the 2nd day of November, 1976, intentionally or knowingly cause the death of Fannie Kimball an individual, as alleged in the information, you will find the defendant guilty as charged in the information and say so by your verdict.”

With regard to his contention that the charge authorizes a conviction on theories not pled in the information and that the charge is not limited to the conduct alleged in the information, appellant relies on Robinson v. State, 553 S.W.2d 371; Morter v. State, 551 S.W.2d 715. In each of those cases, the jury charge was found to be defective due to the fact that it authorized a conviction under not only the proscribed conduct alleged in the indictment, but, also a different statutory theory from that alleged in the indictment. Appellant also relies on Ross v. State, 487 S.W.2d 744. In Ross, the charge authorized a conviction under a theory not alleged in the indictment. In the instant case, the information alleges and the charge limits a conviction to the conduct proscribed in V.T.C.A. Penal Code, Sec. 19.02(a)(1). Thus, appellant’s contentions that the charge authorizes a conviction under a theory different from that alleged in the information is not supported by the record.

With regard to appellant’s contentions that the charge contains a fatal variance and failed to apply the law to the facts of the case, he maintains that the charge allowed the jury to find that death was caused by means other than alleged in the indictment.

We have held that a jury charge which totally fails to apply the law of the offense to the facts of the case is fundamentally defective and may be raised for the first time on appeal. See, Perez v. State, 537 S.W.2d 455; Harris v. State, 522 S.W.2d 199. In the instant case, the charge set forth the statutory elements of the offense of murder and applied those elements to the facts of the case.

We cannot conclude that the failure of the charge to require the jury to find that the deceased died as a result of being beaten on the head with a hammer was an error calculated to injure the rights of appellant, or that appellant’s trial was not fair and impartial as a result of the commission. See, Art. 36.19, V.A.C.C.P. Appellant stipulated in the presence of the jury that the deceased died as a result of blunt trauma to the head. Dr. Jachimczyk testified that such injuries were consistent with the deceased having been beaten with a hammer. Appellant did not cross-examine the witness as to the cause of death nor did he offer any rebuttal evidence to refute same. Thus, the cause of death was not a disputed factual issue in the case.

Absent an objection to the charge, we find no reversible error. In Cumbie v. State, 578 S.W.2d 732 this Court set forth all of the errors in charges which have been found to constitute fundamental error. The alleged error in the charge in the instant case does not fall within any of the infirmities constituting fundamental error set forth in Cumbie. While it would have been desirable to include “beating her on the head with a hammer,” its omission under the circumstances here does not constitute fundamental error in the charge. Appellant’s seventh through tenth grounds of error are overruled.

In his eleventh ground of error, appellant contends that the trial court erred in failing to grant a mistrial following improper jury argument by the prosecutor. Specifically, appellant complains of the following argument:

(Prosecutor): “The last thing I want to talk to you about is this: The defendant has the same right to call witnesses as we do. I want you to think about this man who says he has devoted his whole life to God and worked for churches and God. You didn’t see a single witness come in here from any church or church-affiliated organizations and tell you what a good man he is.
“MR. ROGERS: I object to counsel commenting on the defendant’s character. We have not injected the defendant’s character in any manner.
“THE COURT: Sustained.
“MR. ROGERS: Would you please instruct the jury to disregard it?
“THE COURT: The jury will disregard the last comment.
“MR. ROGERS: Because of those remarks, we will move for a mistrial.
“THE COURT: That is overruled.”.

Generally, an instruction to disregard to the jury is sufficient to cure an error in argument to the jury. Jones v. State, Tex.Cr.App., 568 S.W.2d 847; Chambers v. State, 568 S.W.2d 313. It has been held that such an instruction to disregard is sufficient to render harmless any error in the type of argument to which appellant complains in this ground of error. See, Bates v. State, Tex.Cr.App., 587 S.W.2d 121; Baker v. State, Tex.Cr.App., 368 S.W.2d 627. Appellant’s eleventh ground of error is overruled.

In his twelfth ground of error, appellant contends that the trial court erred in discharging the jury after a verdict of guilty was returned. He maintains that his action in filing a motion for probation required the jury to assess punishment.

The record reflects that on February 14, 1977, appellant filed a sworn motion for probation requesting that if the punishment assessed by “the Court or Jury” does not exceed ten years, that “the Court or Jury” place the defendant on adult probation. Appellant also filed a motion requesting that if the jury returned a verdict of guilty, that punishment be assessed by the court.

In Ortegon v. State, 459 S.W.2d 646, the Court considered a contention identical to the one which appellant raises in this ground of error. In that case, it was held:

“As we view it, the written-request to have the judge assess punishment had the effect of withdrawing any request there may have been for the jury to consider the issue of probation and constituted a waiver thereof.”

Appellant’s twelfth ground of error is overruled.

The judgment is affirmed.

      . Section 19.02(a)(1), supra, provides in relevant part:
      “(a) A person commits an offense if he:
      “(1) intentionally or knowingly causes the death of an individual; . . . ”


author: W. C. DAVIS, Judge.

text:
    Willie Charles BERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 56051.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 31, 1979.

      James L. McNees, Jr., Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler, and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the trial court at fifty years in the Texas Department of Corrections. The sufficiency of the evidence to sustain the conviction is not challenged.

In his first ground of error, appellant contends that the trial court erred in admitting evidence of an extraneous offense, offered as rebuttal testimony by the State. The robbery for which appellant was convicted occurred on November 29,1974. Roy Daniel testified that on this date, he was the dealer in a Fina service station. That afternoon, a young black male, who he later learned was Tommie Berry, came into the station, stating that it was cold outside and asking if he could warm up inside. Daniel let him remain inside the station. Tommie sat by the stove for a while, and then made two telephone calls. He stated to Daniel that there was no answer. Tommie then asked how much cigarettes cost there, and then bought a pack of Kool cigarettes from Daniel, paying with a one dollar bill. Daniel had to open the cash drawer to get change. Tommie then made another telephone call from inside the store, and then sat down again and opened the cigarettes and lit one.

A minute or so later, a dark blue Cadillac drove into the station very fast and pulled up very close to the building. A black male, identified by Daniel as appellant, was driving the car. Daniel approached the car, and the driver asked him a question about the younger male inside the station. When Daniel turned to look, Tommie was holding a gun on him. Tommie then took Daniel into the storeroom, where he threatened to kill him. Meanwhile, appellant and Tommie took cash, cigarettes and a pistol from the station.

After other evidence was presented to connect appellant to the offense, appellant presented a defense of alibi. Tommie Berry, appellant’s nephew, who had previously pled guilty to the robbery, testified that appellant had not been with him in the commission of that offense. Several other witnesses, including appellant and his mother and sisters, testified to appellant’s alibi defense.

Upon rebuttal, the State offered the testimony of Timothy Chambers, who testified that on November 26,1974, he was working at a Shamrock service station. That afternoon, a tall, slender black male, later identified as Tommie Berry, came into the service station and asked if Chambers was hiring. When Chambers responded that he was not, Tommie asked to use the telephone. Chambers told him that it was only for business purposes. Tommie stood in the station for about 10 minutes, and then he asked how much cigarettes cost. He then asked for a package of Kool cigarettes, and paid for them with a one dollar bill. Chambers had to get change for him.

Then a dark blue Cadillac pulled into the station and requested a dollar’s worth of gasoline. The driver of the car was identified as appellant. Chambers saw that the driver and Tommie were exchanging glances, so he became suspicious. The Cadillac left the station and Chambers asked Tommie to leave also. At this point, a delivery truck pulled in to make a delivery. As Chambers started to make a payment, he looked up and observed Tommie holding a pistol on him. At this point, he also saw that the driver of the Cadillac had pulled back into the station and had gotten out of the car.

The two proceeded to take cash and packages of cigarettes. Just before they left, Chambers heard Tommie yell, “Hey, Willie, you need transmission fluid or oil for your car?”

In Hines v. State, 571 S.W.2d 322 (Tex.Cr.App.1978), we reiterated that it is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Halliburton v. State, 528 S.W.2d 216 (Tex.Cr.App.1975); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973). However, there are exceptions to this general prohibition against the introduction of extraneous offenses. An accused’s denial of the commission of the crime on trial and his reliance on the defense of alibi automatically causes the identity of the perpetrator of the crime to become a contested issue. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1974); Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973). When identity is an issue, evidence of other offenses committed by the accused is admissible against him, provided that the other offenses have similar distinguishing characteristics to those of the offense for which he is being tried. Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.1979); Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974). Only when such distinguishing characteristics are present is the extraneous offense relevant, because then there may be drawn an inference that the accused was the person who also committed the primary offense. Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.1979); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972).

The extraneous robbery was shown to have been committed only three days before the primary offense. Both were committed in service stations. In both cases, Tommie Berry, who had pled guilty to both offenses, entered the service station on some pretext. In both cases, he stayed inside the service station for a period of time. In the primary offense, Tommie used the telephone. In the extraneous offense, he attempted to do so. In both cases, he purchased a package of Kool cigarettes, paying for both with a dollar bill, necessitating that the complainants open the cash drawer. In both cases, while Tommie was inside, the dark blue Cadillac pulled into the station. The driver was positively identified as appellant by both complainants. In both cases, Tommie held the pistol on the victims, while appellant took the property, which, in both cases, consisted of cash and a large amount of cigarettes. In the extraneous offense, Tommie was heard calling to appellant, using appellant’s first name. Clearly, they acted as a team.

We find that sufficient distinguishing characteristics were shown to make the extraneous offense admissible. The common characteristics may be proximity in time or place, or the common mode of the commission of the act. Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.1979); Ransom v. State, supra. Both are present in this case. We hold that the trial court did not err in admitting evidence of the extraneous robbery. This ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in overruling his amended motion for a new trial, in which he contended that jury misconduct had occurred. The record reflects that during the course of trial, Tommie Berry’s confession to this robbery was admitted into evidence to impeach his testimony at trial that appellant had not been with him during the commission of the robbery. In its charge to the jury, the trial court gave a limiting instruction as to this evidence, as follows:

“You are instructed that a witness may be impeached by showing that he has made other and different statements out of court from those made before you on the trial. Such impeachment evidence may be considered by you to aid you in determining (if it does so) the weight, if any, to be given the testimony of the witness at trial and his credibility; but such impeaching evidence is not to be considered as tending to establish the alleged guilt of the defendant in this case.”

Attached to appellant’s amended motion for new trial was an affidavit of a juror in the instant case, in which the juror stated:

“My name is Manuel C. Zaky, and I reside at 5706 Llano, in Dallas, Dallas County, Texas; that I was a juror in the trial in the State of Texas versus Willie Charles Berry, case no. C-74-11589-HL, in the Criminal District Court No. 5 of Dallas County, Texas, in October of this year, 1975; that during the jury deliberation, and after we had retired to consider our verdict and prior to reaching a verdict, the jury requested that the confession of Tommie Berry, which was an exhibit in the case, be brought into the jury room. The contents of the confession was (sic) discussed and considered by the members of the jury in determining and establishing the guilt of Willie Charles Berry, the Defendant; and I personally considered the contents of said confession in determining and establishing the guilt of Defendant, Willie Charles Berry.”

This appears to be an attempt to impeach the jury’s verdict by showing the reason for the conclusion reached and the mental processes whereby the jurors reached their verdict. This jurors may not do. Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977); Peak v. State, 522 S.W.2d 907 (Tex.Cr.App.1975); Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974); Adams v. State, 481 S.W.2d 884 (Tex.Cr.App.1972). In Schaefer v. State, 190 Tex.Cr.R. 609, 5 S.W.2d 982 (1938), a similar contention was rejected. There, the claim was that testimony which was admitted for one purpose was misappropriated when the jury used it for another. We held “[w]e do not believe it permissible for a juror to attempt to impeach his verdict in this manner.”

In Gonzales v. State, 398 S.W.2d 132 (Tex.Cr.App.1976), the defendant presented evidence that a juror considered certain testimony relating to an extraneous offense, which the trial court had instructed the jury to disregard, in reaching her decision as to the defendant’s guilt. We noted that there was no evidence to indicate that this matter had been discussed in the jury room. However, the basis for our overruling the defendant’s contention was stated that,

“It has been the consistent holding of this Court that a juror will not be permitted to impeach or explain his or her verdict by showing the reason for the conclusion reached.”

More recently, in Peak v. State, 522 S.W.2d 907 (Tex.Cr.App.1975), we rejected an attempt by the defendant to show the mental processes of jurors in arriving at their verdict, when testimony was presented that a juror had considered extraneous offenses, admitted solely for impeachment purposes, in assessing punishment. The trial court there, as here, had given a limiting instruction on the evidence, which a juror attempted to show was not followed. We rejected this ground, reiterating that a defendant is not entitled to develop the mental processes of a juror in reaching a verdict. See also, Adams v. State, supra.

Further, we have previously held that it is not permissible to impeach the verdict of the jury by the testimony of jurors showing what use was made of testimony legally before them. Carpenter v. State, 124 Tex.Cr.R. 313, 61 S.W.2d 849 (1933); De Long v. State, 122 Tex.Cr.R. 290, 55 S.W.2d 107 (1932); Sims v. State, 96 Tex.Cr.R. 519, 258 S.W.2d 165 (Tex.Cr.App.1924). This ground of error presents an attempt to improperly impeach the jury’s verdict; accordingly, it is overruled.

The judgment is affirmed.