author: TOM G. DAVIS, Judge.

text:
    R. L. LIVINGSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 57632.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.
    Rehearing En Banc Denied Nov. 28, 1979.

      Matt Garcia, San Antonio, James S. Vec-chio, Grand Prairie, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, L. Tolly Wilson, Greg Pipes and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated perjury. V.T.C.A. Penal Code, Sec. 37.03. Punishment, enhanced by one prior conviction, was assessed at 14 years and a $5,000 fine.

The basis of appellant’s conviction was his testimony to a Tarrant County grand jury. This grand jury was investigating several allegations regarding the sexual abuse of children by the appellant. In the course of this investigation, a grand juror asked the appellant, “Have you ever, since you have been here in Port Forth, Tarrant County, engaged in homosexual conduct, indecency with a child, sexual abuse of a child?” The appellant answered that he had not. After investigating these charges, this grand jury returned no indictments against the appellant.

A later grand jury returned the indictment in the present case, alleging that the appellant had perjured himself in answering the questions set out above. Appellant moved for a change of venue, and the case was transferred to Potter County.

The record reflects that the appellant was director of the Better Influence Association (B.I.A.), a youth organization in Port Worth funded by the United Way. This organization worked to develop the potentials of children in the black community of Fort Worth. Children were sometimes referred to this organization by both the police and school authorities. Often this referral came after an arrest or some manifestation at school that the child was experiencing problems.

The B.I.A. was made up of a board of directors, the appellant as director, and other employees. The main activities of this association were counseling of children, holding classes such as arts and crafts, music, and dance, and providing a place for the children’s recreation.

Appellant was accused of homosexual conduct with two boys who were members of B.I.A. Both boys had lived with appellant. The record reveals that at different times four to six boys would live with appellant at his home. Appellant would provide lodging for boys referred to the B.I.A. if for some reason they had no place to live.

Appellant contends that the trial court erred in allowing the State to cross-examine a defense witness with “have you heard questions” during the guilt stage of the trial. It is the appellant’s contention that this witness was not a reputation witness, thus impeachment by this method was improper.

The witness was A. B. O’Connor, a high school principal. After testifying as to his educational background, the witness gave the following testimony on direct examination:

“Q. All right. And in your professional capacity, either as a principal or functioning under any of the degrees that you possess, have you had occasion to work with the Better Influence Association in Fort Worth?
“A. Yes, sir.
“Q. Have you ever referred a problem student to the BIA?
“A. Yes, sir.
“Q. Have you referred more than one?
“A. Yes, sir.
“Q. And can you tell us approximately how many you have referred?
“A. I would say that in our high school over the period of approximately the last seven years, I would say I have called for assistance on at least a hundred.
“Q. And have you received assistance, sir?
“A. I have received excellent assistance, not only in understanding of the problem itself, but the wherewithal of the other areas of studies that I had, I found that the experience from the people I was discussing the problems with, we found better solutions.
“Q. And can you tell us approximately how many times you have had occasion to discuss problem students with R. L. Livingston himself?
“A. Well, I work very closely with Mr. Livingston. I referred to him as Mr. Cool all the time. This was approximately seven years ago.
“At that time, the high school that I was principal of was integrated, and we brought in the 9th Grade, and the situation was rather tense.
“I was not familiar with all of the type of problems—
“MR. WILSON [prosecutor]: I object to this answer as not responsive.
“THE COURT: Yes. Mr. O’Con-nor, please just answer the question as it is asked.
“THE WITNESS: I didn’t understand, I’m sorry.
“Q. (By Mr. Garcia [defense attorney]): And the high school at which you are presently principal, what is the ethnic make-up of the student body?
“A. Fifty-one percent black, thirty-four percent brown and approximately fourteen point something white. “MR. GARCIA: Pass the witness.”
This is the entire testimony elicited by defense counsel on direct examination.
The jury was removed and the prosecutor was allowed to question the witness as follows:
“Q. (By Mr. Wilson) Mr. O’Connor, would you say that R. L. Livingston is of good character?
“A. Yes, sir, to me, my relationship, sir. “Q. All right. Now Mr. O’Connor, I would ask you, have you heard— “MR. GARCIA: Your Honor, of course we are objecting to this being presented before jury.
“THE COURT: Yes, I understand.”

The State then asked “have you heard questions” regarding a prior conviction in Lubbock County and six homosexual encounters with boys in Tarrant County.

The trial court ruled that the. State could ask the “have you heard questions” in front of the jury. The trial court stated:

“THE COURT: Mr. Garcia, I don’t intend to preclude you from making an argument. I will tell you, however, that it is the opinion of the Court, whether for right or wrong, that the entire defense has quite properly, I might add, been predicated upon tying together the Better Influence Association and the Defendant as virtually one entity, and the last four witnesses have all testified as to either good character traits on the part of the Defendant, or good character traits on the part of the BIA.
“Therefore, I feel that the law is clear under the Child’s Case and the cases which have come out since the Child’s Case, that the have-you-heard questions may properly be asked.
“MR. GARCIA: Your Honor, we will respectfully except to the ruling of the Court, and in order to perfect our bill, we would like to call Mr. Wilson to the stand.”

The appellant then questioned prosecutor Wilson relative to his good faith in asking the “have you heard” questions.

The State cross-examined witness O’Con-nor in the presence of the jury, asking:

“BY MR. WILSON:
“Q. Mr. O’Connor, I would ask you, sir, are you telling this jury that R. L. Livingston is of good character?
“A. Yes, sir.
“Q. Mr. O’Connor, have you heard that on the 26th day of October, 1964, in Lubbock County, Texas, this Defendant was convicted of the offense of sodomy with a 15-year-old Mexican boy named - and given five years in the State Penitentiary?
“A. No, sir.
“MR. GARCIA: Before you answer that question, just a moment. Your Honor, we are going to object to this question and we are going to object to any other further questions along these lines by Mr. O’Connor — by Mr. Wilson, and we would like to have a running objection on all inquiries by Mr. Wilson relative to this.
“THE COURT: All right. Your objection will be overruled, but you may have a running objection.
“MR. GARCIA: Thank you, sir.
“Q. (By Mr. Wilson) Have you heard, Mr. O’Connor, that in 1974, at the home of R. L. Livingston, he put the penis of_, a Negro boy, in his, R. L. Livingston’s mouth?
“A. No.”

The State asked other have you heard questions involving homosexual relations with some seven boys. At the end of its cross-examination, the State concluded by asking:

“Q. (By Mr. Wilson) If you had heard all of those things, Mr. O’Connor, would you still tell this jury that R. L. Livingston was of good character?
“A. That calls for a conclusion on my part, and I would have to check it out. But, under the information that I have, the answer would be I would not hesitate.
“MR. WILSON: We have no further questions.”

On re-direct, defense counsel asked the witness:

“BY MR. GARCIA:
“Q. Mr. O’Connor, you say that you would not hesitate to say that Mr. Livingston is of good character?
“A. That’s correct, sir.
“Q. From the information that you have on him and the work that he has done with you and your school—
“A. Yes, sir.”

The State first urges that appellant’s objections were general and did not preserve the error for our review. The record reveals that the court was on notice and understood the basis of appellant’s objections. This is evidenced by the hearing outside the presence of the jury and the court’s comments relative to the admissibility of the “have you heard” questions under the “Child’s Case.” See Daniel v. State, Tex.Cr.App., 550 S.W.2d 72; Williams v. State, Tex.Cr.App., 531 S.W.2d 606; Price v. State, Tex.Cr.App., 460 S.W.2d 420.

In its brief, the State points to the testimony of two other witnesses, in addition to O’Connor, that the State maintains were character witnesses and justified this use of “have you heard” questions. The State urges that:

“Even the trial court noted Appellant’s entire defense had been predicated upon tying together the BIA and Appellant as one entity and that several witnesses had testified as to the good character traits of Appellant or the BIA.”

The State concludes that this cross-examination was proper as the appellant had placed his character in issue by offering testimony regarding both himself and the B.I.A.

We find the following excerpts from the treatises helpful:

“At this date it should be too well understood to require comment that actual character is distinct from reputation which is merely evidence of character, but even today the term ‘character’ is often used in the sense both of actual disposition and of reputation. This tends to obscure an important distinction. The terms are not synonymous. Character refers to the inherent qualities of a person. Reputation applies to the collective opinion of the community as to those qualities. It should be kept clearly in mind that reputation is merely one of three modes of proving character, and is resorted to as evidence from which an inference may be drawn as to the nature of the actual trait.” [Footnote omitted.]

2 C. McCormick & R. Ray, Texas Practice, Sec. 1324 (2d ed. 1956).

“In criminal cases, evidence of the character of the accused must be confined to proof of his general reputation in the community at or prior to the commission of the offense charged. Consequently, a witness, when testifying as to the character of the accused, must not give his private opinions on the matter or testify merely as to isolated acts of good or bad behavior. Moreover, when evidence of good character is offered by the accused, it must be related to traits bearing on the offense charged. Hence, evidence of incidental or irrelevant traits is inadmissible.” [Footnotes omitted.]

23 Tex.Jur.2d, Evidence, Sec. 171 (1961). See, Houghton v. State, 345 S.W.2d 535; Smith v. State, Tex.Cr.App., 414 S.W.2d 659.

It is important to keep in mind that reputation is but one method to prove character. A reputation witness is a character witness insofar as his testimony inferentially proves character, but a witness whose testimony proves character by a method other than reputation is not a reputation witness. This distinction is important in determining what means of impeachment are proper to test the credibility of the witness. When specific acts of conduct that inferentially show the accused’s character are admitted into evidence, the State is not automatically entitled to impeach the character witness as if his testimony had been reputation testimony.

Evidence of reputation offered to prove the character of the accused necessarily relies on hearsay. Brown v. State, Tex.Cr.App., 477 S.W.2d 617. This is because reputation is based on what the accused is thought to be, rather than what the accused is. Brown v. State, 477 S.W.2d 620. Thus when a witness testifies as to the reputation of the accused, this must be based on what he has heard from others in the community, rather than what he has personally observed. Smith v. State, Tex.Cr.App., 414 S.W.2d at 662.

When a witness testifies to the accused’s reputation in the community, the State may ask the witness “have you heard” questions to impeach the witness’ testimony. The purpose of a “have you heard” question is not to show the specific instances of bad conduct of the accused, but rather to test the credibility of the witness. Hurd v. State, Tex.Cr.App., 513 S.W.2d 836; Brown v. State, Tex.Cr.App., 477 S.W.2d 617.

Further, the State cannot place the accused’s character into issue by its own cross-examination and then justify impeachment by “have you heard” questions based on the testimony elicited on cross-examination. Els v. State, Tex.Cr.App., 525 S.W.2d 11; cf. Hatley v. State, Tex.Cr.App., 533 S.W.2d 27, 29. Thus, in the present case, unless O’Connor’s testimony on direct justified his impeachment with “have you heard” questions, the impeachment was improper.

To determine if O’Connor’s testimony justified the State’s use of “have you heard” questions, we must review this Court’s prior decisions regarding character and reputation evidence, and impeachment of witnesses testifying to both. Although a review of the cases reveals a distinction between character witness and reputation witness, the distinction is sometimes blurred.

The interchangeable use of reputation and character is illustrated in Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282. In Mitchell, the defendant’s wife testified as follows:

“On direct examination, appellant’s wife was asked:
‘Now, Mrs. Mitchell, you say you married Sanders (Sanders Mitchell, the appellant) in 1964. I will ask you whether or not you have ever seen any evidence of Sanders using any type of narcotic drugs?
‘A No, sir.’
“We quote from the record of the cross-examination as follows:
‘And you have never seen any evidence of Sanders using any type of narcotic drugs.
‘A No, sir.
‘Q Have you ever heard of Sanders using any type of narcotic drug? ‘MR. GOODWIN (defense counsel): Well, if Your Honor please, I think she can answer the question, but it still would be hearsay and it is outside the scope of direct examination.
‘THE COURT: Overruled.
‘MR. DOYLE (prosecuting attorney): Mrs. Mitchell, have you ever heard—
‘A I have heard of it . . . ’
“On re-direct by appellant’s counsel:
‘Was that marihuana?
‘Yes, sir.’ ”

517 S.W.2d at 287. The Court made the following conclusion regarding this testimony:

“The record reflects that although the wife was not asked the ‘magic words’ concerning appellant’s general reputation, the questions asked on direct examination as well as her entire testimony on direct were geared to show his reputation as to the use of narcotics and made of her a character witness in that respect. See Childs v. State, Tex.Cr.App., 491 S.W.2d 907; Salazar v. State, Tex.Cr.App., 494 S.W.2d 548; Navajar v. State, Tex.Cr.App., 496 S.W.2d 61.
“The question asked by the State to which objection was made was pertinent and germane to her testimony on direct examination.” [Emphasis added.]

Id.

Although we find the result in Mitchell sound, the language used to support that conclusion can be misleading.

Mrs. Mitchell’s testimony was not “reputation” evidence. Her testimony did not concern her knowledge of the defendant’s reputation, but only her personal knowledge of one character trait. Her testimony was geared to show a character trait regarding the use of drugs, not reputation.

The State properly tested her credibility by asking whether she had heard of the defendant’s use of narcotic drugs. Mrs. Mitchell’s testimony inferentially proved that the defendant had a particular character trait, and good faith questions asking if she had heard of acts by defendant inconsistent with the character trait were proper.

In Mitchell, it was correctly stated that the “have you heard” questions were proper as they were pertinent and germane to her testimony. It was not because she testified to the defendant’s reputation, however, but because she testified as to a character trait.

In Childs v. State, Tex.Cr.App., 491 S.W.2d 907, and cases following this decision, this Court held that even without questions specifically inquiring into reputation, that a witness who testifies to the “good character and law abiding habits” of a defendant can be cross-examined as if a reputation witness. In Childs the testimony was:

“Ground of error number 1 relates to the testimony of appellant’s father at the hearing on punishment. He testified, on direct examination, that he joined with his son in requesting the jury to grant the appellant probation. He further stated that he would keep appellant at his home, employ him and supervise his conduct and assist him in maintaining exemplary conduct. He also testified:
‘Q. [Defense attorney] . . . And has his conduct been good since he has been there while he has been there at home?
‘A. [Witness] Really has.’
“On cross-examination the witness admitted that the effect of his answers to counsel’s questions had been to tell the jury that his son was ‘of good character’. He was then asked over appellant’s objection if ‘he had heard’ that his son, the appellant, had been indicted for robbery and for possession of marihuana and was living with a prostitute who was also a heroin addict.”

Again, this witness’ testimony was not “reputation” testimony in that it was not based on hearsay knowledge of the defendant’s reputation in the community. The father’s assertion that the defendant had been “good” was evidence of specific conduct by the defendant, thus the father was a character witness and not a reputation witness.

The statement that the defendant had been “good” would tend to show that the defendant possessed more than one character trait that was good. An inference could be drawn from this testimony regarding such character traits as being peaceful, law-abiding, and engaging in conduct conforming to the social norm. Thus, the statement that the defendant had been “good” encompassed a broad range of character traits, going so far as to infer a general good character.

The State’s use of “have you heard” questions was proper to test the witness’ knowledge of specific acts of misconduct inconsistent with the character traits implied by the father’s broad assertion. Again it should be noted that this impeachment was not proper because the witness was a reputation witness, but because he was a character witness.

A contrast of Childs and Mitchell emphasizes the different factual situations and the different specific instances of conduct that could be used to impeach. In Childs, the witness made a sweeping assertion that would infer the general good character of the accused, where in Mitchell, the witness testified to a narrow course of conduct that inferred only one specific character trait was good. In Childs the State impeached with specific instances of conduct inconsistent with the inference of general good character, while in Mitchell the State impeached with a specific instance of conduct inconsistent with the single character trait involved. In both cases the State impeached the witness with “have you heard” questions after proof of character by instances of conduct and not after any proof of reputation.

In Els v. State, 525 S.W.2d 11, this Court held that impeachment by “have you heard” questions was improper. In Els, the defendant was being tried for the murder of the witness’ daughter. The witness testified to specific acts of conduct by the defendant while in her presence and to the relationship between her daughter and the defendant. In contrast to the testimony in Childs, this testimony made no sweeping assertion inferring generally good character. Instead the testimony showed the defendant to be helpful and considerate of this witness, and involved romantically with her daughter. Here, as in Mitchell, the testimony revealed only specific character traits.

The State did not limit its impeachment to specific instances of conduct inconsistent with the character traits to which the witness testified. Instead, the State asked about defendant’s prior conduct involving indecent exposure, carrying a pistol, and burglary. Although this conduct would be inconsistent with testimony inferring that the defendant’s general character was good, it was not inconsistent with the character traits testified to by the witness. This Court reversed the conviction in Els.

From the cases above we can draw the following conclusions. When a witness testifies to conduct of the defendant that is so broad as to infer that the defendant has good general character, the witness’ credibility can be impeached with “have you heard” questions involving specific instances of misconduct inconsistent with generally good character. But when a witness testifies to instances of conduct that go no further than to imply that specific traits of character are good, the witness can be impeached with “have you heard” questions involving only those instances of misconduct inconsistent with the specific character traits placed in issue.

In the present case, the witness testified that he referred children to B.I.A., that he received assistance from B.I.A., and that he had worked closely with the appellant. This is not the broad assertion of general good character made in Childs. The appellant’s character and the effectiveness of the B.I.A. is not one and the same. The B.I.A. could have been viewed as an effective organization regardless of the appellant’s conduct.

In the present case, the testimony inferentially concerned, at best, specific, narrow character traits of appellant. Instances of conduct inconsistent with the testimony of O’Connor would have been proper impeachment. The instances of misconduct used by the State in the “have you heard” questions were not proper to test the credibility of this witness. These specific instances of misconduct were not inconsistent with any character trait introduced during direct examination. We hold that the State’s attempted impeachment of O’Connor was improper.

The questions asked the witness on cross-examination involved eight instances of homosexual conduct. Although appellant’s prior conviction involving homosexual conduct was later entered into evidence without objection, these eight other instances of prior homosexual conduct were before the jury only during this cross-examination of O’Connor. The improper asking of these questions was harmful and prejudicial to the defendant. See, Els v. State, supra, and cases cited therein.

The judgment is reversed and the cause remanded.

      . The record reflects that the appellant appeared voluntarily, was allowed to have counsel present during questioning, waived his right against self-incrimination, and answered the question under oath.


source: Caselaw Access Project

author: ROBERTS, Judge. DOUGLAS, Judge.

license: Public Domain

text:
    Charles Richard KEMNER, Appellant, v. The STATE of Texas, Appellee.
    No. 55786.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 13, 1979.
    Rehearing Denied Nov. 28, 1979.

      Jack M. McGinnis, San Antonio, Samuel H. Bayless, on appeal only, Darby Riley, on appeal only, San Antonio, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Rufus J. Adcock, Travis Young and Ronald G. Knight, Asst. Dist. Attys., C. Chris Marshall, Asst. Crim. Dist. Atty. for Tarrant County, Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana. A jury found the appellant guilty and assessed punishment at ten years’ confinement.

Appellant is before us with ten grounds of error. He contends: (1) that the court erroneously admitted testimony that the marihuana seized could be used to produce 28,000 marihuana cigarettes; (2) that the court erroneously admitted testimony concerning the value of the seized marihuana; (3) that the court erroneously allowed the prosecutor to imply that appellant had committed extraneous offenses; (4) that the marihuana was the product of an illegal search and seizure and should have been excluded from evidence; (5) that the court erroneously admitted evidence of a business record without the proper predicate required by Article 3737e, V.A.C.S. having first been laid; (6) that the court erred in denying appellant’s motion that the informant’s name be disclosed; (7) that the court erroneously denied appellant’s motion to examine a police report; (8) that the court’s charge on punishment was fundamentally defective; (9) that Article 42.12(B)(3a), Vernon’s Ann.C.C.P., providing for jury recommendations of probation, is unconstitutional, and (10) that the court erroneously denied appellant’s motion for continuance. We affirm.

Due to the nature of appellant’s contentions, we find it more suitable to set out the salient facts pertaining to each ground of error immediately preceding each discussion thereof. Suffice it to say for the present that appellant was apprehended with approximately 31 pounds of marihuana as he was attempting to leave the Dallas-Fort Worth Airport. The arrest was made as the result of an informant’s tip and without a warrant.

In his first two grounds of error, appellant complains of testimony offered by the State to the effect that the marihuana seized could be used to produce 28,000 marihuana cigarettes and had the value of approximately $125 per pound.

Jose Alvarez, a chemist for the Drug Enforcement Administration (DEA), testified that during his two years’ employment with the DEA he had the occasion to analyze marihuana and knew the quantity of that substance contained in an average marihuana cigarette. Alvarez further testified that 31.5 pounds of marihuana (the amount seized from the appellant) would produce approximately 28,000 cigarettes. Detective William Glenn of the Department of Public Safety testified that during his experience as an undercover narcotics officer he was familiar with the price of marihuana and that a pound of marihuana would sell for approximately $125 in the Dallas area. All of this testimony was admitted over appellant’s timely objection.

This Court has held that it is not reversible error for a chemist to testify on the basis of his expert knowledge as to the strength of the narcotic recovered and to translate the amount of the narcotic recovered into terms understandable by the jury. Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974); Enriquez v. State, 501 S.W.2d 117 (Tex.Cr.App.1973). We have reached a similar conclusion where testimony was admitted concerning the .value of the narcotic recovered. Castro v. State, 432 S.W.2d 948 (Tex.Cr.App.1968). We cannot say that the facts of the present case require a result different from our previous holdings. Accordingly, appellant’s first and second grounds of error are overruled.

By his third ground of error, the appellant contends that the court erroneously permitted the prosecutor to imply that he had committed extraneous offenses which had not resulted in final convictions. With respect to this ground of error, the record reflects that appellant’s wife was called as a character witness at the punishment phase of the trial and was asked on cross-examination if she knew the whereabouts of appellant on four different occasions prior to the date of the offense in question. She was also asked if she was aware of any “transactions” which occurred on those various occasions. Appellant failed to object to these questions in a timely and specific manner; therefore, nothing is presented for review. Dinn v. State, 570 S.W.2d 910 (Tex.Cr.App.1978); Rodriguez v. State, 417 S.W.2d 165 (Tex.Cr.App.1967).

By his fourth ground of error, the appellant challenges the legality of the warrant-less search of his suitcase conducted at or near the time he was arrested at the Dallas-Fort Worth Airport. He contends that the search cannot be justified under the exigent circumstances exception to the Fourth Amendment warrant requirement (and also the requirement of Article I, Section 9 of the Texas Constitution) nor as a search incident to lawful arrest.

John Powell, agent for the DEA in McAllen, testified at the appellant’s motion to suppress that on December 19,1975, at approximately 8 p. m., a reliable informant employed by Texas International Airlines whose identity he did not reveal informed him that moments earlier the appellant had checked in a large blue suitcase on Texas International Airlines flight 994 bound for Dallas. The informant told Powell that after he smelled the odor of marihuana emanating from appellant’s suitcase, he opened it and found a large quantity of marihuana. Powell then relayed this information along with appellant’s physical description to a fellow narcotics agent in Dallas who in turn contacted Detective Glenn at the Dallas-Fort Worth Airport advising him of the appellant’s flight number and scheduled time of arrival.

Glenn testified that the appellant’s flight finally arrived approximately two hours later than the scheduled time of arrival. Glenn observed the appellant’s suitcase as it was being unloaded from the plane and kept it under surveillance until the appellant picked it up and began to leave the airport. At that time, Glenn placed the appellant under arrest, seized the suitcase, and escorted the appellant to a nearby security office where a search of the suitcase conducted without a warrant revealed approximately 31 pounds of marihuana.

The appellant places primary reliance on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) in which the Supreme Court held to be unreasonable the warrantless search of the defendant’s footlocker which was seized at the time of his arrest but searched over an hour later at the police station. The Court held that the search could not be justified on the basis of exigent circumstances nor as a valid search incident to arrest because the footlocker was searched at a time and place remote from the place of arrest and after it had been reduced to the exclusive possession of government agents.

Although Chadwick lends support to the appellant’s contention that the present search cannot be justified under the “incident to lawful arrest” or “exigent circumstances” exception to the warrant requirement, we conclude nevertheless, on the authority of United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), that Chadwick should not be applied retroactively. Several federal appellate courts have arrived at the same conclusion. See United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977). In United States v. Peltier, supra, the Supreme Court held that any judicial enlargement of the exclusionary rule will be given retroactive effect only when “the law enforcement officer had knowledge or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment” at the time it was conducted. Ibid, 422 U.S. at 542, 95 S.Ct. at 2320. With this principle in mind, we are inclined to agree with the 7th Circuit Court of Appeals which held in United States v. Berry, supra, that:

“. . . [U]ntil Chadwick, there was no reason for law enforcement officials to believe that attache cases were not among those personal effects which, under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), could be seized as part of a ‘full search of the person’ incident to a lawful arrest, and which, under United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), could be searched several hours after the suspect had been taken into custody.” Ibid at 571 F.2d 3.

We hold therefore, that at the time in question the warrantless search of appellant’s suitcase was justified as a search incident to lawful arrest and that the evidence seized as a result thereof was properly admitted at trial. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Fry v. State, 493 S.W.2d 758, 770 (Tex.Cr.App.1972) (Opinion on State’s Second Motion for Rehearing); Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967); see and compare Chaires v. State, 480 S.W.2d 196 (Tex.Cr.App.1972). Accordingly, appellant’s fourth ground of error is overruled.

Appellant next contends that the court erroneously admitted over his timely objection a DEA “evidence transmittal sheet” without the proper predicate being laid as required by Tex.Rev.Civ.Stat.Ann., Article 3737e. This contention is without merit.

Alvarez testified that the “evidence transmittal sheet” was a record of the DEA; that it was made in the regular course of business; that it was the regular course of business for an employee or representative of the DEA to have personal knowledge of the act, event, or condition recorded and to make a memorandum or record of the event, and that the record was made at or near the time of the recorded event.

This Court has consistently held that the Texas Business Records Act, Article 3737e, supra, is applicable to criminal cases. Simmons v. State, 564 S.W.2d 769 (Tex.Cr.App. 1978). Also, where the proper predicate has been laid, this exception to the hearsay rule is to be liberally construed. Simmons v. State, supra. We conclude that Alvarez, by his testimony set forth above, sufficiently satisfied the requirements of Article 3737e, supra. This ground of error is overruled.

In his sixth ground of error, the appellant contends that the court erred by refusing to instruct the State to disclose the identity of the informant because the informant was present at the time the offense was committed or, in the alternative, the informant was a material witness on the issue of appellant’s culpable mental state.

In Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976), it was stated that:

“The identity of an informant need not be disclosed unless (1) the informant participated in the offense; (2) was present at the time of the offense or arrest; (3) was otherwise shown to be a material witness to the transaction or as to whether appellant knowingly committed the act charged. [Citing cases.]”

The appellant was charged and convicted with possession of more than four ounces of marihuana in Tarrant County. The record reflects that at all relevant times, the informant was in McAllen, Hidalgo County. Therefore, the informant was not present at the time the offense was committed. For the same reason, we cannot say that the informant was a material witness on the issue of appellant’s culpable mental state. The arresting officer, and not the informant, was the only one able to testify that the appellant was in possession of a suitcase containing approximately 31 pounds of marihuana in Tarrant County. We conclude that appellant was not entitled to have the identity of the informant disclosed to him. Carmouche v. State, supra; Varela v. State, 561 S.W.2d 186 (Tex.Cr.App.1978). Appellant’s contention is overruled.

By his seventh ground of error, the appellant complains that the trial court erred by refusing his request to inspect a police report which Powell used prior to trial in order to refresh his memory. The record reflects that Powell himself did not prepare the report in question and that he did not use this report while he was testifying as a witness.

Under the “use before the jury rule” a defendant is entitled to inspect, upon his timely request, any document, instrument or statement which has been used by the State before the jury in such a way that its contents become an issue. Howard v. State, 505 S.W.2d 306 (Tex.Cr.App.1974). Thus, the defendant was not entitled to the police report under this rule because it was referred to'only prior to trial. Nor was the appellant entitled to the police report under the “Gaskin Rule” which provides that a defendant, upon his timely request, is entitled to the inspection and use of a previous report or statement personally made by the witness testifying for the State. Howard v. State, supra. Since the police report in question was not made by Powell himself, the trial court properly denied appellant’s request. See Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977). Appellant’s contention is overruled.

Appellant next contends that the court’s charge on punishment was fundamentally defective because it failed to supply the jury with the “minimum guidelines” to be followed in deciding whether or not to recommend probation. In the alternative he contends that Article 42.12(B)(3a), supra, is unconstitutional for failure to require such guidelines. We find no merit in either of these contentions.

The court’s instructions to the jury on the issue of punishment were in accordance with the provisions of Article 42.12(B)(3a), supra. The jury was instructed that in fixing the punishment they could consider “all the facts shown by the evidence admitted [during] the full trial of this case and the law as submitted to you in this charge.” The jury was also instructed that it could not recommend probation unless it assessed punishment at less than ten years and it further found that the appellant had never been convicted of a felony in this or any other State. The court then enumerated the conditions of probation to be followed by the appellant in the event the jury decided to recommend probation.

Fundamental error is presented where the error in the court’s instruction to the jury goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted. Martinez v. State, 576 S.W.2d 854 (Tex.Cr.App.1979). The court’s charge in the present case, in accordance with Article 42.12(B)(3a), supra, by instructing the jury to consider all the facts of the case together with the law submitted to it in the charge as well as the enumerated conditions to be followed by the defendant in the event probation was granted, enabled the jury to intelligently exercise its discretion on the question of whether or not to recommend probation for the appellant. See O’Neal v. State, 421 S.W.2d 391 (Tex.Cr.App.1967) (Opinion on Appellant’s Motion for Rehearing). Thus, we hold that the court’s charge in the present case adequately protected the appellant’s rights and that he was not harmed thereby. Article 36.19, Vernon’s Ann.C.C.P.

Nor are we persuaded by the appellant’s argument that Article 42.-12(B)(3a), supra, is unconstitutional because it does not sufficiently guide the jury in assessing punishment. Although the court must follow a jury’s recommendation that probation be granted, Article 42.12(B)(3a), supra, it is the court, and not the jury, who must ultimately refuse a defendant’s request for probation. And the court may always grant a defendant probation in its absolute and unreviewable discretion where the punishment does not exceed ten years and “. . . when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby . . .” Article 42.12(B)(3a), supra; Zubia v. State, 543 S.W.2d 389 (Tex.Cr.App.1976); Balderas v. State, 497 S.W.2d 298 (Tex.Cr.App.1972). Thus, a defendant’s chance for probation is not foreclosed by the jury’s failure to make a favorable recommendation under Article 42.12(B)(3a), supra. Finally, in light of what we have previously said, we are constrained to disagree with the appellant’s contention that the due process requirements that apply when the jury assesses punishment in a capital case should apply with equal force to the jury’s deliberations under Article 42.-12(B)(3a). See and compare Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Accordingly, appellant’s contentions are overruled.

In his final ground of error, the appellant contends that the court erroneously denied his motion for continuance which was presented on June 1,1976, two days prior to trial. Appellant urged in his motion that his first opportunity to talk to Powell was on May 25, 1976, and that this conversation created a need for further investigation. The trial commenced on June 3, 1976, approximately eight days subsequent to appellant’s conversation with Powell.

Initially, we note that appellant’s motion for continuance was not sworn to. by the appellant as required by Article 29.08, Vernon’s Ann.C.C.P.; therefore, appellant has failed to properly preserve this assignment of error for review. See also Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974). Moreover, whether or not to grant a defendant’s motion for continuance is a matter left to the sound discretion of the trial court. Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977). We cannot say that the record in the present case clearly demonstrates an abuse of discretion by the court in denying appellant’s first motion for continuance which was presented two days prior to trial and where the appellant admittedly had eight days in which he could have conducted any further investigation necessary. See Freeman v. State, supra. Appellant’s final contention is overruled.

The judgment is affirmed.

Before the court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Kemner was convicted of possession of marihuana. Leave to file the motion for rehearing was granted to determine if Arkansas v. Sanders, - U.S. -, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), requires us to hold that United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), is to be applied retroactively. Arkansas v. Sanders, supra, did not address the issue of the retroactive effect of United States v. Chadwick, supra.

Sanders was arrested in April, 1976. After his conviction in 1976, Chadwick was decided by the Supreme Court in 1977. Based on the holding of Chadwick, the Supreme Court of Arkansas reversed Sanders’ conviction. Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977). Writ of certiorari to the Arkansas Supreme Court was granted in 1978. (439 U.S. 891, 99 S.Ct. 247, 58 L.Ed.2d 236).

The Supreme Court of the United States cited Chadwick, but the question of retroactivity was not briefed, argued or discussed by the Court. The writ of certiorari was granted “to resolve some apparent misunderstanding as to the application” of the Chadwick decision, not to determine whether Chadwick was applicable to that set of facts. We are not bound by the decision of the Arkansas Supreme Court to apply Chadwick retroactively. We decline to do so.

The decision of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was applied, without discussion, retroactively in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), and in Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). At a later date, in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), however, the Supreme Court of the United States specifically held Mapp not retroactive.

The issue of retroactivity is decided on the function of the new constitutional rule. If the purpose of the new rule is to rectify an impairment of the truth-finding function, thus raising the issue of the accuracy of the guilty verdict, the rule must be applied retroactively. United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). If the ruling, however, is in the context of the exclusionary rule, where admittedly relevant evidence is suppressed to further a constitutional goal that has nothing to do with the fact-finding process, the rule should be considered prospectively. 422 U.S. at 535, 95 S.Ct. 2313.

In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the Supreme Court set forth the purposes of the exclusionary rule as (1) upholding the “imperative of judicial integrity” and (2) deterring future acts of unconstitutional conduct by the police. If the evidence has been seized by the police in good-faith compliance with then existing constitutional standards, neither purpose will be thwarted by prospective application of the rule. United States v. Peltier, supra.

As the panel opinion in the present case noted, the police were complying with the then-prevailing constitutional standard. The purpose of the exclusionary rule would not be served by retroactive application of the Chadwick holding.

In the present case, there was no reason for Detective Glenn to believe that the suitcase was not among the personal effects of Kemner and thus subject to a “full search of the person” incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Nor was this search made unlawful because Detective Glenn learned of Kemner’s suspect status almost four hours before the arrest. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

In Michigan v. DeFillippo, - U.S. -, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), the Supreme Court of the United States upheld a search under an ordinance of Detroit even though the Michigan Supreme Court held the ordinance invalid and the search unconstitutional. The Court held that the officer had a right to rely upon the ordinance until it had been declared unconstitutional. See United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Reda, 563 F.2d 510 (2nd Cir. 1977); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977).

The panel opinion properly held that the record shows that the officer complied in good faith with the prevailing constitutional standard prior to United States v. Chadwick, supra.

The appellant’s motion for rehearing is overruled.

PHILLIPS and CLINTON, JJ., dissent.

      . We reject the State’s contention that the search of appellant’s suitcase can also be justified by the exigent circumstances which existed at the time the search was conducted because at that time the appellant was in custody and his suitcase had been reduced to the management and control of the arresting officers. See Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); compare Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

      . See Nastu v. State, - S.W.2d - (No. 58,059, October 3, 1979).


author: ODOM, Judge.

text:
    Dale Joseph BURKE, Appellant, v. The STATE of Texas, Appellee.
    No. 61016.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Gerald A. Woolf, court appointed, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, Andy M. Tobias and Tom Royce, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. After appellant entered a guilty plea the trial court assessed punishment at ten years.

At the outset we are met with fundamental error. Article 1.15, V.A.C.C.P., requires evidence be introduced to support a plea of guilty. The only evidence presented to support appellant’s guilty plea was this judicial confession:

“On September 21, 1977, in Harris County, Texas, I did while in the course of committing theft of property owned by Ricky Elbert Stevenson hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.” (Emphasis added.)

The indictment, however, alleged that appellant committed the offense not by threatening and placing the complainant in fear of imminent bodily injury and death (under V.T.C.A., Penal Code Secs. 29.-02(a)(2) and 29.03), but by causing serious bodily injury to the complainant (under V.T.C.A., Penal Code Secs. 29.02(a)(1) and 29.03). The judicial confession therefore will not support the conviction because it is not a confession to the offense alleged in the indictment. Reid v. State, Tex.Cr.App., 560 S.W.2d 99.

Because the guilty plea is not supported by evidence as required by Article 1.15, supra, the judgment is reversed and the cause remanded.


author: PHILLIPS, Judge.

text:
    Ernest SALAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 61102.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Roderick E. Wetsel, Sweetwater, for appellant.
    Frank L. Ginzel, Dist. Atty., Colorado City, and Russell Carroll, Asst. Dist. Atty., Sweetwater, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation. Appellant was initially convicted of failing to stop and render aid. See Article 6701d, Sections 38 and 40, V.A.C.S. Punishment was assessed at five years’ imprisonment, but imposition of the sentence was suspended while appellant was placed on probation. The State requested that appellant’s probation be revoked for violating the conditions of his probation by committing burglary of an automobile. Following, a hearing on the charges, appellant’s probation was revoked.

In reviewing the record before us, fundamental error has been discovered which will be reviewed in the interest of justice. See Article 40.09(13), V.A.C.C.P. The indictment by which appellant was charged with failing to stop and render aid reads, in pertinent part:

. . . ERNEST SALAZAR, on or about the 1st day of May, A.D. 1976, ., did then and there drive a vehicle, to-wit, an automobile, upon a public road, and while said automobile was being driven upon said public road by said Ernest Salazar, he, the said Ernest Salazar, did strike Raymond Caballero, Jr. with said automobile and did then and there and thereby injure the person of the said Raymond Caballero, Jr., and the said Ernest Salazar, did then and there unlawfully fail to stop and render reasonable assistance to the said Raymond Caballero, Jr., in this, the said Ernest Salazar, did then and there fail to stop and carry and fail to make arrangements for the carrying of the said Raymond Caballero, Jr., to a physician and surgeon for medical treatment, it being apparent that such treatment was necessary by reason of said injuries received as aforesaid; .

Indictments which fail to set forth the essential elements of an offense deprive the trial court of the jurisdiction necessary to render judgment. Such defects in the indictment are subject to collateral attack on applications for writ of habeas corpus. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598. This case is controlled by the decision of Goss v. State, Tex.Cr.App., 582 S.W.2d 782 (1979), and the authorities cited therein. The fact that the indictment alleged that the injuries made the necessity of treatment apparent does not satisfy the requirement that the indictment allege that the actor knew an accident involving the victim occurred. The instant indictment fails to allege a culpable mental state. See V.T.C.A., Penal Code, Sections 6.02 and 6.03.

Accordingly, the judgment of conviction is reversed and the indictment dismissed.


author: ROBERTS, Judge.

text:
    Charles RUMBAUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 59940.
    Court of Criminal Appeals of Texas, En Banc.
    June 20, 1979.
    Rehearing Denied Nov. 28, 1979.

      James D. Durham, Jr., Amarillo, court appointed on appeal, for appellant.
    Thomas A. Curtis, Dist. Atty., John Byron Reese and Steve Schiwetz, Asst. Dist. Attys., Amarillo, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

After he had been arrested on a charge of capital murder, the appellant escaped from the Potter County jail. He and two other inmates who escaped were arrested for a traffic violation in Scurry County. As they were being taken into the Scurry County Courthouse, the three arrestees assaulted the arresting officer and took his gun, but they were recaptured immediately. After they were taken before a magistrate (see Article 15.17, V.A.C.C.P.), they were confined in the Scurry County sheriff’s office. The arrestees did not know that their conversations were being recorded on tape as they talked among themselves and with other persons in the office.

At the punishment phase of the appellant’s trial for capital murder, and over the appellant’s objection, the trial court received in evidence portions of the long tape recording. These portions included the appellant’s statement to the arresting officer, “If I’d a-had a gun I sure as hell would have shot you, man”; his statement to the arresting officer explaining his plan to “jump” the officer with a knife; his statement to his companion, complaining about not being given the officer’s gun so that he could have staged a “showdown”; his statement to officers that he doubted that he would ever sit in the electric chair, and his description of the capital murder. These damaging and inculpatory statements were offered on the issues stated in Article 37.-071(b), V.A.C.C.P. After hearing these statements and other evidence, the jury answered the issues “yes,” which fixed the punishment at death.

In his twelfth ground of error, the appellant contends that the court erred in admitting into evidence one of the statements on the tape (“If I’d a-had a gun I sure as hell would have shot you, man.”), because it was not admissible under Article 38.22, V.A.C. C.P. The appellant does not explain why he mentions only that statement, for his objection applies with equal (or greater) force to the later statements on the tape. At trial the appellant objected on the same ground to all the statements. The error complained of embraces all the statements.

The trial court overruled the objection on the ground that he was bound to reject only evidence that was “in violation of” the constitutions of the United States or Texas. Similarly, the State argues on appeal that the tape, although inadmissible at the guilt stage of the trial, was admissible at the punishment stage “because no constitutional rights were violated.” The ruling and the argument are based on the two sentences of Article 37.071(a), V.A.C.C.P. that are emphasized:

“Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.”

Although the first of these emphasized sentences gives the trial court wide discretion in determining the relevance of facts sought to be proved in the proceeding, the sentences do not abolish the rules of evidence. Porter v. State, 578 S.W.2d 742, 748 (Tex.Cr.App.1979).

That the Legislature deliberately chose not to abolish the exclusionary rules of evidence is shown by considering the legislative history of Article 37.071(a). The revision of Texas’s law on capital crimes began with House Bill 200 in the 63rd Legislature. Not much of that bill (and nothing relevant to this case) survived. After the bill passed the House, the Jurisprudence Committee of the Senate recommended an amended version which substituted an entirely different bill. The procedural aspects of this bill were virtually identical to those of the Florida Capital Punishment Act, which had been enacted only a few months before. The pertinent portion of the Senate bill read:

“Article 37.071. PROCEDURE IN CAPITAL CASE.
(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury, unless waived, as soon as practicable. If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in Subsections (e) and (f) of this section. Any evidence that the court deems to have probative value may be admitted, regardless of its admissibility under the exclusionary rules of evidence, but the defendant shall be accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death. [Emphasis supplied]”

It will be noted that in this bill, between the two sentences on which the State relies, there was another sentence which would have abolished the exclusionary rules of evidence in the punishment phase of a capital trial. After the bill passed the Senate, the House refused to concur in the amendments, and the bill was referred to a conference committee. In the process of resolving the differences between the bills, the conference committee made many modifications. The conference committee’s bill was approved by overwhelming majorities of both houses and was signed into law, so the actions of the conference committee express the Legislature’s intent.

The conference committee made several changes in Article 37.071(a). First, it removed references to waiver of jury trial, because it decided that no waiver would be permitted. Second, it removed references to aggravating and mitigating circumstances, because it substantially rejected that concept. Third, and most significantly for our purposes, it deleted the sentence that would have abolished the exclusionary rules of evidence in the punishment phase of a capital trial. This can only mean that the Legislature deliberately chose not to abolish those rules. The legislative intent is clear.

Additionally, an examination of the context in which arose the two sentences on which the State relies will show that these sentences were not intended to abolish all but the constitutionally mandated rules of evidence.

The first of these sentences was the result of a disagreement in Florida over the scope of the punishment hearing. The governor of that state proposed a bill which would have limited the evidence to matters that were relevant to the enumerated aggravating and mitigating circumstances. The Florida Legislature amended the bill to expand the scope of relevance to any evidence that was relevant to sentencing, in addition to the enumerated circumstances. Thus, it may be seen that the effect of this sentence is to expand the trial court’s discretion as to relevance, but it does not alter other aspects of the law of evidence. We so held in Porter v. State, 578 S.W.2d 742, 748 (Tex.Cr.App.1979).

The other sentence on which the State relies is the one that deals with “evidence secured in violation of the Constitution.” The Florida Legislature added that sentence in an evident abundance of caution, so that no one could be misled by the preceding sentence (which abolished “the exclusionary rules of evidence”) into thinking that the exclusionary rule of the Fourth Amendment had been affected. Most (if not all) of the significance of this sentence disappeared when the Texas Legislature omitted the sentence that abolished the exclusionary rules of evidence. Thus it may be seen that this sentence was intended only as a caution, not as an abolition of all the nonconstitutional rules of evidence.

Neither of these sentences on which the State relies purports on its face to change any rule of evidence other than the scope of relevance. The history of their origins demonstrates that there was no intent that they make any additional changes in the law of evidence. When we consider the additional fact of the Legislature’s deliberate omission of the sentence that would have abolished the exclusionary rules of evidence, we are compelled to hold that the exclusionary rules of evidence do apply at the punishment phase of a capital trial.

This holding is consonant with our earlier holdings that the rule of evidence that excludes hearsay is applicable in the punishment phase of a capital trial. See Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979); Cortez v. State, 571 S.W.2d 308 (Tex.Cr.App.1978).

There is no conflict between today’s holding and our earlier holdings that evidence of unadjudicated, extraneous offenses is admissible at the punishment phase of a capital trial. See Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979); Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979); Hammett v. State, 578 S.W.2d 699, 709 (Tex.Cr.App.1979). In each opinion we have said, “Nothing in Article 37.071 requires that there be a final conviction for an extraneous offense to be admissible at the punishment phase of the [capital] trial.” The statement implies a comparison with Article 37.07, Section 3(a), V.A.C.C.P., which, in the punishment phase of a non-capital trial, does limit proof of a defendant’s prior criminal record to final convictions and other adjudicated offenses. The significance of the comparison is this: In a non-bifurcated trial, in which the issues of guilt and punishment are litigated at the same time, there is a rule of evidence that excludes proof of extraneous offenses because it confuses and prejudices the issue of guilt. J. Wigmore, Evidence, Section 55 (3rd ed. 1940). The purpose of a bifurcated procedure is to eliminate the need for this exclusionary rule of evidence. Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979); American Law Institute, Model Penal Code 74-75 (Tentative Draft No. 9, 1959). The very choice by the Legislature to establish a bifurcated procedure in capital cases, like the one in non-capital cases, evinces its intention to eliminate the rule of evidence that excludes proof of extraneous offenses. Had it wanted to limit the proof in capital trials to adjudicated offenses, it could have provided so in Article 37.071, as it has in Article 37.07. There being nothing in Article 37.071 to require such a limitation, this Court cannot impose it. The net result is that, by choosing a bifurcated procedure, the Legislature abolished the rule of evidence that excludes proof of extraneous offenses; by deliberately choosing not to abolish the other exclusionary rules of evidence, the Legislature has kept them in effect at the punishment phase of a capital trial.

The statutory rule of evidence that excludes proof of an oral confession by a person in custody has existed in Texas since 1907. The history of the rule is summarized in Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973), and is brought up to date in Bubany, “The Texas Confession Statute,” 10 Texas Tech.L.Rev. 67 (1978). Since 1965, the rule has been codified as Article 38.22, V.A.C.C.P. There were a few exceptions in the statute that was in effect when the appellant made his oral confessions, but none of the exceptions applies here.

In 1977, four years after the capital punishment statutes were enacted, the Legislature amended Article 38.22, V.A.C.C.P. to make admissible an electronic recording of an oral statement made as a result of custodial interrogation, but only for impeachment and only when (among other things) the accused is told that a recording is being made. Even if this relaxation of the rule applied to this case, the trial court’s ruling would have been an error, for the statements were used as direct evidence and the appellant was not told that a recording was being made. We should not be misunderstood as implying that the 1977 amendments apply. The point is to demonstrate the continuing strength of the Legislature’s policy against the admission into direct evidence of oral confessions made informally. We note that, with two exceptions, all types of admissible oral and written confessions require some formalities in their making: written and signed statements that show on their face that they were made after statutory warnings were given, statements made at an examining trial, and (now) electronically recorded statements that were made in the presence of two witnesses after warnings were given (including a warning that the recording was being made). Article 38.22, V.A.C.C.P. Perhaps these requirements of formalities are designed to guard against the danger that casually made oral statements are “so liable to be misunderstood.” See Pierson v. State, 145 Tex.Cr. 388, 168 S.W.2d 256, 259 (1943). Especially might this danger be great if an accused, who did not know his words were being recorded, were engaged in boasting and in making himself out to be a fearsome desperado in the eyes of his companions and in the face of peace officers. Anyone who listened to the entirety of this recording would conclude that the 18-year-old appellant was doing just that.

However this may be, the wisdom of this legislative policy is not a matter for this Court. Butler v. State, 493 S.W.2d 190, 198 (Tex.Cr.App.1973). It is for us to hold that the statutory rule of evidence that excludes oral confessions made in custody does apply to the punishment phase of a capital trial, that the trial court erred in admitting evidence of the oral confessions, and that the recording may not be used at any retrial.

The judgment is reversed and the cause is remanded.

DALLY, J., concurs in the results.

DOUGLAS, ODOM, TOM G. DAVIS and W. C. DAVIS, JJ., dissent.

      . “Q [Evidently by a deputy sheriff]: Who’d you kill?
      “A [By the appellant]: A jewelry store owner.
      “Q He pull a gun on you?
      “A Yeah. He wasn’t fast enough. He wasn’t fast enough. I shot him. Well, first I strug — you know, knocked him down a couple times, put it up to his head and shot. But somehow it miraculously missed him, man, not through no fault of my own. I think he moved. Same time as I shot him in the chest. He didn’t move any more.”

      . See “Comment, House Bill 200,” 11 Hous.L. Rev. 410 (1974).

      . “Transcript of Debate on H.B. 200, May 23, 1973,” page 7 (Remarks of Senator Ogg). The document is in the Texas Legislative Reference Library file on H.B. 200.

      . “[I]t is basically like the Florida law.” Id. at 3.

      . 1972 Florida Laws, chapter 72-724; codified as Fla.Stat.Ann., Section 921.141 (West Supp. 1979). The Florida act, in turn, is very much like Section 210.6 of the Model Penal Code (Proposed Official Draft 1962). ✓

      . See Ehrhardt & Levinson, “Florida’s Legislative Response to Furman,” 64 J.Crim.L. & C. 10 (1974).

      . The bill is in the Texas Legislative Reference Library file on H.B. 200.

      . “Comment, House Bill 200,” supra note 2, at 418 (citing House and Senate Journals).

      . Id. at 418-420 (Table 1).

      . Id. at 420.

      . Id. at 419 (Table 1, no. 7); see Article 1.14, V.A.C.C.P. (1973 Texas Acts, Chapter 426, Article 3, Section 5).

      . “Comment, House Bill 200,” supra note 2, at 419 (Table 1, no. 8); see Article 37.071(b), V.A. C.C.P.

      . “In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.” V.A.C.C.P., Article 37.071(a).

      . Ehrhardt & Levinson, supra note 6, at 16 n. 63.

        .Id. at 14-16, especially at n. 46.

      . “Regardless of the plea and whether the ■punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” Article 37.-07, Section 3(a), V.A.C.C.P.

      . The issue that divided the court in Butler (whether the rule applied to mere statements that were not “confessions”) is not present in this case, for at least two of the statements were confessions to crimes: the appellant’s explanation of his plan to jump the officer and his description of the capital murder.

      . The appellant’s statements were made on December 8, 1975. In effect at that time was 1967 Texas Acts, Chapter 659, Section 23. That earlier version of Article 38.22 provided in part:
      “1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if: “(a) it be shown to the voluntary statement of the accused taken in the presence of an examining court in accordance with law; or
      “(e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.
      “(f) Nothing contained herein shall preclude the admissibility of. any statement made by the defendant in open court at his trial or at his examining trial in compliance with Articles 16.03 and 16.04 or of any statement that is the res gestae of the arrest or of the offense.”

      . 1973 Texas Acts, Chapter 426.

      . 1977 Texas Acts, Chapter 348, Section 2.

      . “This Act applies only to statements made on or after its effective date [August 29, 1977].” 1977 Texas Acts, Chapter 348, Section 3.

      .The exceptions are res gestae statements and statements that are found to be true and to conduce to establish guilt through the finding of physical evidence. The theory is that these types of informal statements are verified by external circumstances.


text:
    Kenneth Ray JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 61019.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 20, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Ealy A. Bennett, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, and Mike T. McSpadden, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a revocation of probation. Appellant asserts that the revocation was an abuse of discretion as the cause for revocation was not established by the evidence.

On August 2, 1977, appellant pled guilty before the trial court to the offense of unauthorized use of a motor vehicle. Punishment was assessed at three years and appellant was placed on probation. Among the conditions of his probation was the requirement that he pay restitution to the injured parties in the form of $40 a month paid through the Adult Probation Department and $10 a month supervisory fee. The motion to revoke was filed on June 26, 1978, and his probation was revoked on July 18 for failure to adhere to this condition.

Until recently, it was necessary for the State to prove, when revoking probation for failure to pay fees, that the probationer had the ability to make the payments and that his failure to make them was intentional. Whitehead v. State, Tex.Cr. App., 556 S.W.2d 802. This rule was altered in 1977 when Article 42.12, V.A.C.C.P, was amended to include, doubtless inadvertently, two new subsections 8(c). The Code Construction Act, Vernon’s Ann.Civ.St., art. 5429b-2, Section 3.05(b) provides:

“. . .if amendments to the same statute are enacted at the same session of the legislature, ope amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each.”

The two amendments in question are reconcilable and combine to make inability to pay the enumerated fees an affirmative defense which the defendant must raise and prove by a preponderance of the evidence. The enumerated fees include those for which appellant had his probation revoked, and it was therefore his burden to raise his inability to pay as an affirmative defense and to prove the same by a preponderance of the evidence.

The trial court found that appellant did have the ability to pay and revoked his probation. We must view the evidence in a light most favorable to the verdict. Fernandez v. State, Tex.Cr.App., 564 S.W.2d 771; Guzman v. State, Tex.Cr.App., 521 S.W.2d 267.

Testimony of appellant’s probation officer revealed that Jones had been placed on probation on August 2,1977, and that he neither paid any money nor made any visits to the probation office until December 21, when he was arrested on a motion to revoke probation. Appellant was released from jail on March 21, 1978. He came in to report on March 29 with no money and reported he had no job. The same thing happened on April 14 and May 2. On May 2, the probation officer became certain Jones was not really looking for work and sent him to the Community Resource Department where he was placed in a job the next day at a motorcycle repair shop. The officer stated that, according to her information, appellant had been fired after a week, while appellant testified that he had worked there two weeks. On June 6, he reported he had a new job. On June 13 he brought in $25, and on June 20 he brought in $5. Thus, from August 2, 1977, to June 20,1978, appellant paid $30 total of the $50 a month that he was charged with paying as a condition of probation.

Appellant testified that he had money but that it went for living expenses, clothes, etc. During this time, he testified, he was living at home and had to pay his mother $20 every time he got paid. There was no other testimony about expenses beyond vague references. He testified that during August and September he had worked in the labor pool making under $150 a month. There was some discrepancy in his testimony at this point indicating that if he had worked the hours he claimed at the hourly wage he said he was getting, he would have received more than that. He stated that in October and November he received around $250 a month at the labor pool. He stated that he had worked two weeks at the motorcycle shop and been paid $212 for his time. He made no satisfactory answer to an inquiry on cross-examination of why he did not make some attempt to pay some restitution after receiving this paycheck.

There was ample evidence from appellant’s own testimony that he had the financial resources to have paid, or made some partial payment or at least made a good faith gesture toward paying the $50 a month that was a condition of his probation. At any rate, there was a complete failure to prove the affirmative defense of inability to pay by a preponderance of the evidence. It was not an abuse of discretion to revoke appellant’s probation.

The judgment is affirmed.

      . The two sections are as follows:
      “(c) In a probation revocation hearing at which it is alleged only that the probationer violated the conditions of probation by failing to pay probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.
      “(c) In a probation revocation hearing at which it is alleged that the probationer violated the conditions of probation by failing to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.”


author: DOUGLAS, Judge.

text:
    Hector SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 58079.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.
    Joseph S. Chagra, El Paso, for appellant.
    ' Steve W. Simmons, Dist. Atty. and Miguel J. Cervantes, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.

      Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

This appeal is from a conviction for possession of heroin. The punishment, enhanced under V.T.C.A., Penal Code, Section 12.42, was assessed by the jury at fifty years.

The sufficiency of the evidence is challenged.

On the evening of November 6, 1976, Officers Dennis Hughey and Pedro Mendoza of the El Paso Police Department were patrolling in an unmarked car in a high crime area of the city. They observed an automobile with its dome light on parked in an alley. The officers turned off their headlights and parked behind the vehicle. Appellant, a passenger in the front seat, was seen showing a syringe to two people in the back seat. The officers, in plain clothes, then walked past the car and saw appellant holding a syringe with a bottle cap. The glove compartment lid was down with several articles laying on top of it and a bottle full of water was between appellant and the driver.

The officers returned to the vehicle, opened the front doors simultaneously and arrested the occupants. During a search of the vehicle, two syringe caps, a bottle cap and a small piece of cardboard containing a brown powdery substance, later proved to be heroin, were found on the glove compartment lid which had been down in front of appellant. Two syringes and a balloon were also recovered.

Being bound to review the evidence in a light most favorable to the verdict, we hold that it is amply sufficient to support each element of the offense and the jury’s verdict. See Mendoza v. State, 583 S.W.2d 396 (Tex.Cr.App.No. 55,827, April 18, 1979); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976).

Next, appellant contends the court erred in admitting the evidence discovered in the vehicle because it was acquired as a result of an illegal search.

After the officers saw appellant display the syringe and other paraphernalia, they had probable cause to arrest him. Jones v. State, 565 S.W.2d 934 (Tex.Cr.App.1978); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1974); Parker v. State, 544 S.W.2d 149 (Tex.Cr.App.1976). The physical items were found on the open lid of the glove compartment and in plain view of the officers as they were standing on a public street pursuant to a lawful arrest and investigation. The search, therefore, was reasonable. Jones v. State, supra; Myre v. State, supra; Hunnieutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976); Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974), and cases cited therein. No error is shown.

Complaint is made of the admission of certain oral statements made by appellant while under arrest to the arresting officers. At the trial the officers were allowed to testify over objections that after his arrest appellant had stated that they were lucky that they caught him, and he inquired about how he had been caught and if someone “had squealed on him.”

In the recent case of Earnhart v. State, 582 S.W.2d 444 (Tex.Cr.App.No. 57,245, June 20, 1979), the defendant had been placed under arrest for murder when he went to a bedroom to get a shirt. He picked one up but then remarked to a policeman: “It’s got blood on it. I want to get a clean one.” This Court held that the statement was admissible because it was voluntary and was not made in response to any inquiry by the policeman nor the product of interrogation. See Article 38.22(5), V.A.C.C.P.; Larocca v. State, 479 S.W.2d 669 (Tex.Cr.App.1972); Walker v. State, 470 S.W.2d 669 (Tex.Cr.App.1971).

In the instant case the record shows that the statements of appellant were voluntary, not a product of interrogation and not made in response to an inquiry by the officers. Accordingly, the statement was admissible.

Appellant next asserts it was error to admit evidence of extraneous transactions between him and Officer Mendoza. Mendoza testified that he recognized appellant in the car because of “prior dealings with him.” This testimony was not objected to. Therefore, any error was waived. Kemner v. State, 589 S.W.2d 403 (Tex.Cr.App.No. 55,786, June 13, 1979); Dinn v. State, 570 S.W.2d 910 (Tex.Cr.App.1978); Rodriquez v. State, 417 S.W.2d 165 (Tex.Cr.App.1967).

Appellant’s next ground of error contends that it was error for the court to allow the prosecution to argue as follows:

“ . . . If for some reason you should say not guilty by your verdict, you will be saying something to this community, to this man. You will be saying something to him about how easy it is to get away with it in El Paso, County. You will be saying something to other people about how easy it is to get away with this sort of thing and ignore our laws in El Paso, County. . . . ”

The argument was a valid plea for law enforcement and appellant’s failure to object waived his right to complain on appeal.

Appellant also contends that the following arguments constituted reversible error. At the guilt stage the State- argued:

“I don’t have to tell you the problem we have here about heroin or other parts of the country.”

At the punishment stage the prosecution argued:

“Common knowledge tells us that heroin is a very expensive substance and heroin habits can be very expensive habits. Does he have to burglarize and steal to support that habit?”

There was no objection to either argument and consequently any error was waived.

Finally, appellant contends that his conviction is void because his court-appointed counsel did not render effective assistance.

The test to be applied in determining whether counsel has provided constitutionally satisfactory services is the “reasonably effective assistance” standard. Harrison v. State, 552 S.W.2d 151 (Tex.Cr.App. 1977); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974). This is to be gauged by the totality of the representation and the allegations will be sustained only if they are firmly founded. Ex parte Ewing, 570 S.W.2d 941 (Tex.Cr.App.1978); Williams v. State, 549 S.W.2d 183 (Tex.Cr.App.1977); Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976). An accused, however, is not entitled to errorless counsel whose competency or adequacy is to be judged by hindsight. Ex parte Prior, supra.

In the case at bar the court-appointed defense counsel conducted extensive voir dire and obtained a hearing on appellant’s motion to suppress. The State’s witnesses were cross-examined at length; there were objections to certain testimony and a motion for an instructed verdict was filed. The fact that another attorney might have tried the case differently does not show that there was inadequate representation. Williams v. State, supra. Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975). Based on the record before us, we conclude that appellant received effective assistance of counsel and that no legal duty owed to him was breached.

The judgment is affirmed.


text:
    David CAMPOS, Appellant, v. The STATE of Texas, Appellee.
    No. 58085.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Anthony F. Constant, court appointed on appeal only, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric Brown, Asst. Dist. Atty., Corpus Christi, 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 aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. After the jury found appellant guilty, the court assessed punishment at 25 years.

Appellant and two other parties robbed an employee of Feudo’s Foodtown in Corpus Christi at gunpoint on July 17, 1976. Two witnesses identified appellant as one of the robbers. An alibi defense was presented through appellant’s witnesses. Appellant did not testify in his own behalf.

In his first ground of error, appellant contends that the trial court erred in overruling his objection to an alleged comment during voir dire of the jury panel by the prosecutor on appellant’s failure to testify. The record reflects that prior to the incident in question, appellant’s counsel made the following statement in a question to a prospective juror:

“BY MR. HUNTER (Defense Counsel):
“Q. Certainly, I think you would agree I’m not on trial today, Mr. David Campos is, and certainly Mr. Campos will either decide to testify or not, but that decision will be mine, based on certain things that may occur in the trial, and based on that alone, it will be my decision primarily as defense counsel, and all I ask is that you don’t hold that against Mr. Campos, because he has a right not to testify under the United States Constitution and the Texas Constitution. That is a right which he has. Do you have any problems with that, sir?
“A. No, sir.”

Thereafter, the prosecutor made the following comment which gives rise to appellant’s complaint:

“BY MR. MORRIS (Prosecutor):
“Q. Mr. Burns, a moment ago, Mr. Hunter said if his client did not take the stand it would be solely Mr. Hunter’s decision and that it would be based on things that occurred solely during the trial. You understand what Mr. Hunter is saying is not necessarily what he’s actually motivated by. We may never learn why he didn’t want him to take the stand.
“MR. HUNTER: Your Honor, I’m going to object. That’s improper questioning.
“MR. MORRIS:! Your Honor, I just followed up on Defense Counsel’s opening.
“THE COURT: I feel like it was invited by your questioning.
“MR. HUNTER: Note my exception, Your Honor.”

Before an argument of the prosecution will constitute a comment on the failure of the accused to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused must be a necessary one. Pollard v. State, Tex.Cr.App., 552 S.W.2d 475. As noted above, the complained of statement was made during voir dire. Appellant’s counsel had informed the venire panel that he and his client would decide whether appellant would testify based on occurrences during the trial. Therefore, State’s counsel had no way of knowing whether appellant would testify. We have previously held that such a statement does not constitute error in voir dire and cannot be taken at that time as a comment on a subsequent failure of appellant to testify. See, McCary v. State, Tex.Cr.App., 477 S.W.2d 624; Hill v. State, Tex.Cr.App., 480 S.W.2d 670; Myers v. State, Tex.Cr.App., 527 S.W.2d 307; and Jackson v. State, Tex.Cr.App., 536 S.W.2d 371. We find no error in the complained of statement. The ground of error is overruled.

In his second ground of error, appellant contends that the prosecutor commented on appellant’s right not to testify in the form of an objection during the voir dire. The complained of objection occurred during the questioning of a prospective jur- or by defense counsel:

“Q. (Mr. Hunter, Defense Counsel) I just want you to understand that the Fifth Amendment is a guarantee against his not testifying.
“A. Yes.
“Q. And you wouldn’t hold that against him, would you?
“MR. MORRIS (Prosecutor): Objection, Your Honor. The jury is entitled to hold anything against him if they feel he is hiding something, that’s proper.
“THE COURT: Overrule the objection.
“MR. HUNTER: No further questions.”

There was no objection made by appellant to this alleged comment. Therefore, nothing is preserved for review. See, Sloan v. State, Tex.Cr.App., 515 S.W.2d 913 and Beal v. State, Tex.Cr.App., 520 S.W.2d 907.

In his third ground of error, appellant maintains that the court’s charge to the jury was fundamentally erroneous. The indictment alleges that appellant “intentionally and knowingly threaten(ed) Jimmy Tice with imminent bodily injury and death and intentionally and knowingly place(d) Jimmy Tice in fear of imminent bodily injury and death.” When the trial court abstractly defined aggravated robbery, it charged the jury to find appellant guilty if they found that appellant “intentionally or knowingly place(d) another in fear of imminent bodily injury or death.” However, when the facts were applied to the law in the court’s charge, the court followed the allegations of the indictment and charged “intentionally and knowingly.” Appellant contends that the use of the disjunctive “or” rather than the conjunctive “and” in the court’s charge rendered the charge fundamentally erroneous. Appellant did not object to the charge in the trial court.

This Court has previously decided this question adverse to appellant in Mott v. State, Tex.Cr.App., 543 S.W.2d 623 and Moreno v. State, Tex.Cr.App., 541 S.W.2d 170. Appellant’s third ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court erred in not granting his motion for mistrial when evidence of an extraneous arrest was introduced by the prosecution. The complained of testimony arose during cross-examination of appellant’s brother by the prosecutor:

“Q. (Prosecutor) Where was your brother during this same period of time? You say he was arrested on July 22nd. Where was he put in jail?
“A. He was placed here in Corpus Christi County Jail.
“Q. And when did he get out?
“A. He got out sometime in September, I’m not sure.
“Q. Would September 3rd be close? September 3, 1976?
“A. If that’s the date recorded here in ' the courthouse, correct.
“Q. Now did he get thrown back in jail after September?
“A. Correct.
“Q. When was that?
“MR. BONILLA (Defense Counsel): If the Court please, I’m going to object to this line of questioning. . . ”

There was no testimony as to why appellant was rearrested in December. The trial court sustained appellant’s objection and instructed the jury to disregard the question concerning appellant having been thrown back in jail; however, appellant’s motion for mistrial was denied.

An accused is entitled to be tried on the accusation in the State’s pleadings and he should not be tried for some collateral crime or for being a criminal generally. Jones v. State, Tex.Cr.App., 568 S.W.2d 847. This rule extends not only to extraneous offenses, but also to evidence of an extraneous arrest. Rodriguez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61.

It has been stated that an error in the admission of improper testimony is cured by the trial court’s instruction to the jury to disregard, except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Evans v. State, Tex.Cr.App., 542 S.W.2d 139. Thus, testimony referring to or implying extraneous offenses allegedly committed by the defendant may be rendered harmless by the trial court’s instruction to disregard. Beam v. State, Tex.Cr.App., 500 S.W.2d 802; Boykin v. State, Tex.Cr.App., 504 S.W.2d 855; and Evans v. State, supra.

Appellant’s reliance on Carroll v. State, Tex.Cr.App., 365 S.W.2d 786 and Powell v. State, Tex.Cr.App., 478 S.W.2d 95, is misplaced. In both cases, evidence of an extraneous offense was admitted over objection. In the instant case, the trial court promptly sustained the objection and instructed the jury to disregard any evidence concerning appellant’s extraneous arrest.

We find that the trial court’s action in sustaining the objection and instructing the jury cured the error concerning appellant’s extraneous arrest. The ground of error is overruled.

In his fifth ground of error, appellant contends that the trial court erred in admitting into evidence a prior written statement of appellant’s brother Daniel Campos. He had been called as a witness by appellant. Daniel had earlier pled guilty to this offense. He testified that the appellant had not been involved in this robbery. Appellant maintains that the statement was hearsay and inadmissible.

The statement is not included in the record before this Court. However, it appears as though the statement was a confession which had earlier been given by the witness. It appears as though the statement was introduced as a prior inconsistent statement for impeachment purposes during cross-examination of the witness. The trial court instructed the jury that the statement was only to be used for impeachment purposes and not as evidence tending to establish the guilt of appellant. See McCormick and Ray, Texas Law of Evidence, Sec. 688 (2nd Ed. 1956).

The rule of admissibility of evidence of this nature should be liberal and the trial judge should have the discretion to receive any evidence which gives promise of exposing falsehood. Smith v. State, Tex.Cr.App., 520 S.W.2d 383. Thus, when there is a conflict between the two expressions of the witness, the prior written statement is admissible for impeachment. Mitchell v. State, 156 Tex.Cr.R. 128, 239 S.W.2d 384.

On cross-examination, the witness denied having made certain assertions in his prior statement. We find that the statement was properly utilized for impeachment purposes. Appellant’s fifth ground of error is overruled.

We have examined appellant’s pro se brief and find same to be without merit.

The judgment is affirmed.

      . At a conference at the bench appellant made clear that the basis of his objection was to the admission of an extraneous offense.