author: ONION, Presiding Judge.

text:
    Darrell L. CAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 52217.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Rehearing Denied April 27, 1977.

      Phil Burleson and Michael P. Gibson, Dallas, for appellant.
    Henry Wade, Dist. Atty, W. T. West-moreland, Jr., Doug Mulder and Jon Spar-ling, Asst. Dist. Attys., Dallas, Robert O. Smith, Dist. Atty. and Herman C. Gotcher, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder with malice under the former Penal Code, wherein the jury assessed punishment at five (5) years’ confinement in the Department of Corrections.

The case involved the shooting of a handcuffed 12 year old boy by a Dallas city policeman. The cause was tried in Travis County following a change of venue from Dallas County.

Appellant’s grounds of error can be divided into three categories. The first category involves the exclusion of evidence, including among other things, statements by the appellant under the influence of a truth serum which presents a question of first impression in this State. The second category involves objections made to the court’s charge, and the third category relates to the jury arguments of the prosecutors. We overrule all grounds of error and affirm the conviction.

While the sufficiency of the evidence is not challenged, a brief recitation of the facts is necessary to put the discussion of the grounds of error in proper perspective.

It appears from the record that Dallas police officer Roy Arnold was on patrol about 2:30 a. m. on July 24, 1973, when he saw two individuals behind a Pina service station on Cedar Springs Road whom he recognized as the Rodriguez brothers. He broadcast a description and gave their home address, which he knew from past contact with the brothers.

Arnold arrived at the brothers’ home which was about four blocks from the station. The appellant Cain, also a Dallas police officer, arrived in a separate vehicle. The two officers then entered the house and arrested the two Rodriguez brothers.

David Rodriguez, Jr., who was 13 years old at the time, testified he arrived home after 10 p. m. on July 23, 1976, where he lived with his brother Santos and his 80 year old grandfather. He stated his grandfather was asleep in the living room and he went to bed in the bedroom, and later heard his brother come into the room and go to bed. He related that in the early morning hours they were awakened by two uniformed police officers, Arnold and the appellant, who handcuffed them behind their backs and told them they were under arrest. They were placed in a patrol car with the deceased, Santos Rodriguez, in the front with Arnold and David in the rear seat with the appellant. They were then taken to the Fina service station. Other officers were at the scene. David related Arnold asked Santos if anybody else had been with them at the station and Santos replied they had not been at the station earlier. David related the appellant Cain took out his pistol, opened the cylinder and twirled it. David could see bullets in chambers of the cylinder and saw no empty chambers. Appellant then shut the cylinder and áimed it at Santos’ head. David observed no attempt to unload the pistol. Appellant told Santos to tell them if he and his brother had burglarized the service station. When Santos denied the burglary, appellant clicked the gun, stated the pistol had a bullet in it and told Santos to tell the truth. Appellant then clicked the gun and it fired, striking the still handcuffed deceased, Santos Rodriguez, in the head. Appellant jumped out of the patrol vehicle and stated, “Oh, my God.”

Dallas Police Officer Jerry Foster stated he was patrolling on July 24, 1973 about 2:30 a. m. when in response to a police broadcast he went to a Fina service station. Upon arrival, he found a rear window broken out, a desk drawer open and a cigarette machine pried open. A little later Officer Arnold’s vehicle arrived with the appellant Cain and the two Rodriguez brothers. Foster related he yelled to Arnold that he had received information after arriving at the scene that a third person had been involved in the burglary. Foster then walked over to Arnold’s vehicle and laid his arm on the door just as a shot rang out. Foster saw the deceased’s head fall down with blood coming out the side. Appellant screamed and jumped out of the car, stating, “My God, My God, What have I done, I didn’t mean to do it.” Foster then took appellant’s pistol away from him 8 to 10 seconds after the shot was fired and 4 or 5 seconds after the appellant exited the car. Foster did not see the appellant open or reload the pistol. When the pistol was unloaded, there were five live rounds and one empty cartridge. The deceased’s pulse was checked and an ambulance was called.

Dr. Vincent Di Maio performed the autopsy on the deceased and testified a bullet penetrated the brain causing death. The bullet was removed from the brain. Firearms examiner Allan Jones testified he received the bullet from Dr. Di Maio and performed ballistics tests and expressed the opinion the fatal bullet had been fired from appellant’s pistol.

Officer Fred Jenkins testified he had dusted for fingerprints at the service station involved and none of the prints recovered were those of the Rodriguez brothers.

Appellant, testifying in his own behalf, related he went to the Rodriguez brothers’ home and assisted Officer Arnold in arresting them, and rode with Arnold to the Fina service' station. When Santos denied the burglary to Arnold, appellant stated he said, “I will make him tell the truth.” Appellant stated he then stuck his pistol down between his legs and unloaded it with the removed bullets making some noise hitting together. He placed the bullets between his legs, glanced at the cylinder and saw no bullets. He then pointed the gun at the deceased, told him to tell the truth, and pulled the trigger. The pistol just clicked. He again told the deceased to tell the truth and there was a bullet in the gun. He then pulled the trigger and the gun went off. He jumped from the car, screaming and crying. He stated, however, that he picked up the removed bullets from his lap before leaving the car and reloaded the pistol before it was taken from him. He admitted that the interrogation of a 12 year old at gunpoint was not proper police practice, and he didn’t know why he had done it, but he had no intention of killing the boy, that a bullet evidently hung when being ejected and he did not know that any bullets remained in the pistol, that it was accidental that a bullet remained in the pistol.

Initially we shall consider appellant’s contention that the trial court erred in excluding Dr. John Holbrook’s testimony as to the results of a narcoanalysis examination of the appellant.

When the exclusion occurred, the appellant perfected a bill of exception. In the jury’s absence Dr. Holbrook, who was stipulated to be a qualified psychiatrist, testified that amytal sodium is the drug most frequently used in the so-called truth serum test and is used in conjunction with either an amphetamine or adrenalin, which is a central nervous system stimulant; that this mixture of drugs is traditionally and classically used in the amytal interview, a tool and adjunct of psychiatric practice. He related its use “induces a mild state of hypnosis called narcohypnosis, and puts the individual in a completely relaxed physiological and mental condition, normally.” It “primarily makes them more amenable to questioning.”

Dr. Holbrook related that two days after the alleged offense he had administered sodium amytal to the appellant and the drug appeared to work on the appellant, who was simultaneously connected to a polygraph machine which measured respiration, blood pressure, heart rate and skin response. The doctor then stated that after the appellant appeared under the influence of the drug he was asked questions by a trained polygrapher, Ray Jones, in the doctor’s presence. Dr. Holbrook related that appellant answered that he had visually checked to see if the pistol was empty, and believed he had removed all bullets before pointing it at the deceased, that he did not intentionally shoot the deceased, that he accidentally shot the deceased, and that he had reloaded the pistol after the shooting. Dr. Holbrook testified in his opinion that these answers were truthful from the appellant’s standpoint and “I am pretty sure he answered in terms of what he believed to be the truth. . . .”

In describing the test used by psychiatrists, the doctor stated, “ . . .1 don’t know that the truth is always what one gets in an amytal interview, even more accurately you arrive at a truth that is understood to be the truth by the person who is taking the drug. Of course, as you know, truth in itself is very difficult to determine and assess.”

Appellant cites no authority which has permitted the admissibility of a “truth serum” examination. Our research reflects that the results of such test occupy much the same position as the results of lie detector or polygraph and no court has yet recognized the admissibility of the results of such truth serum tests, at least for the purpose of proving the truth of the matter asserted. 29 Am.Jur.2d, § 832, n. 9; 41 A.L.R.3rd 1369, § 4(b), Truth Test — Admissibility of Results; Scientific Evidence in Criminal Cases, Ch. 15, pp. 565-571 (Moenssens, Moses, Inbau).

The great weight of authority in this country regards results of truth serum tests as inadmissible inasmuch as they have not yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception. See State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969); State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962); Knight v. State, 97 So.2d 115 (Fla.1957); People v. Ford, 304 N.Y. 679, 107 N.E.2d 595 (1952); People v. Jones, 52 Cal.2d 636, 343 P.2d 577 (1959); People v. Johnson, 32 Cal.App.3d 988, 109 Cal.Rptr. 118 (1973); Moss v. State, 492 P.2d 1329 (Wyo.1972); Lindsey v. United States, 16 Alaska 268, 237 F.2d 893 (1956); State v. Lindemuth, 56 N.M. 257, 243 P.2d 325 (1952); State v. Levitt, 36 N.J. 266, 176 A.2d 465 (1961); Merritt v. Commonwealth, 386 S.W.2d 727 (Ky.1965); State v. Thomas, 79 Ariz. 158, 285 P.2d 612 (1955), cert. den. 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828.

In Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973), we held that the results of polygraph tests should not be received into evidence, over objection, even if there had been a prior agreement or stipulation. There we quoted with approval from Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, 23 A.L.R.2d 1292, cert. den. 342 U.S. 898, 72 S.Ct. 234, 96 L.Ed. 673 (1951), where the Oklahoma Court of Criminal Appeals, after an exhaustive review of existing authority on the reliability of lie detector and truth serum tests, concluded:

“. . . It is therefore apparent that the efficacy of neither the lie detector or the truth serum test have gained that standing and scientific recognition nor demonstrated that degree of dependability to justify the courts in approving their use in the trial of criminal cases. Therefore, the trial court was not in error in sustaining the state’s objection to the defendant’s tender of the results of such test to which he contends he consented.” 230 P.2d at 506. (Emphasis supplied.)

We remain convinced that the results of the amytal sodium or “truth serum” tests are inadmissible as evidence, inasmuch as they have not yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception. The court did not err in excluding Dr. Holbrook’s testimony.

Appellant also contends the trial court erred in admitting photographs of the body of the deceased taken at the scene of the homicide. The record reflects several witnesses testified as to the deceased being shot and his appearance thereafter at the scene. It is now well established that since a verbal description of the body at the scene was admissible it is not error to admit into evidence photographs thereof. See Dugger v. State, 543 S.W.2d 374 (Tex.Cr.App.1976); Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976); Sternlight v. State, 540 S.W.2d 704 (Tex.Cr.App.1976); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976). See also Whitmore v. State (Tex.Cr.App. # 52,324, 10/13/76); Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976).

The photographs were properly admitted. Appellant’s contention is overruled. Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972).

As to the court’s charge, appellant first contends the court submitted an erroneous charge on accident by use of the qualifying phrase, “Who is in the prosecution of a lawful object by lawful means,” thus wrongly restricting his defensive theory.

First it does not appear that appellant was entitled to a charge on accident. In Starling v. State, 522 S.W.2d 505 (Tex.Cr.App.1975), the defendant called the sheriff and said she accidentally shot her husband. The evidence reflected she intentionally pulled the trigger although' she maintained she thought the gun was not loaded. This court held that this was a mistake of fact and not accident and that the court did not err in refusing to charge on accident. Hamilton v. State, 64 Tex.Cr.R. 175, 141 S.W. 966 (1911), was overruled to the extent of any conflict. Cf. Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975); Fazzino v. State, 531 S.W.2d 818 (Tex.Cr.App.1976).

Likewise in the instant case the appellant admitted he pulled the trigger on his pistol as he held it to the head of the deceased which resulted in the death, but testified he thought he had unloaded the pistol. It is observed that the court charged on mistake of fact.

It is, of course, well established that an accused is entitled to a charge on every defensive issue raised by the evidence and an accused’s testimony alone is sufficient to raise such a defensive theory. See Sargent v. State, 518 S.W.2d 807 (Tex.Cr.App.1975); Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974); Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972).

Further, Article 39, Vernon’s Ann.P.C., 1925, provided:

“No act done by accident is an offense, except in certain cases specially provided for where there has been a degree of carelessness or negligence which the law regards as criminal.”

Normally if the issue is raised the accused is entitled to the defensive charge on accident. If it can be argued the appellant was entitled to an accident charge, it cannot, however, be said he was entitled to an unencumbered defense of accident

Article 1228, Vernon’s Ann.P.C., 1925, provided:

“Homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the act of another who is in the prosecution of a lawful object by lawful means." (Emphasis supplied.) "

In Sargent v. State, 518 S.W.2d 807, 809 (Tex.Cr.App.1975), this court wrote:

“The legislative intent is manifest; the defense of accident which will legally excuse the taking of another’s life is limited to situations where the activity engaged in by the defendant is lawful. Conversely, the inescapable implication of Art. 1228 is that the homicide will not be excusable if one is in the pursuit of an unlawful activity. . . .”

While Sargent dealt with the defense of accident in Article 42, Vernon’s Ann.P.C., 1925, we conclude that what was said there is also applicable here. Appellant was shown by the evidence and his own admission to have been engaged in acts in violation of the provisions of Article 1157, Vernon’s Ann.P.C. (violence to induce confession). Thus, if appellant was entitled to a charge on accident, the charge given was not unduly restrictive. The contention is overruled.

In two grounds of error appellant urges the court erred in failing to charge on intent to kill and aggravated assault.

Ruiz v. State, 523 S.W.2d 691 (Tex.Cr.App.1975), has been decided adversely to appellant’s contentions. There it was held that when a weapon deadly per se is used in a deadly manner and death results there is no need to give a charge on specific intent to kill or aggravated assault, even though the defendant testifies, that he did not intend to kill the victim. See Article 45, Vernon’s Ann.P.C., 1925. It has long been held under the former Penal Code that a pistol is a deadly weapon per se. See, e. g., Bell v. State, 501 S.W.2d 137 (Tex.Cr.App.1973); Stills v. State, 492 S.W.2d 478 (Tex.Cr.App.1973); Ortiz v. State, 490 S.W.2d 594 (Tex.Cr.App.1973); Walker v. State, 440 S.W.2d 653 (Tex.Cr.App.1969).

Further, it has been held that a charge on accident is inclusive of any question of intent to kill and a charge on intent to kill. See Chevallier v. State, 404 S.W.2d 36 (Tex. Cr.App.1965); Cole v. State, 157 Tex.Cr.R. 469, 250 S.W.2d 201 (1952).

Appellant also urges" that the court erred in submitting a charge concerning negligent homicide in the second degree (in performance of an unlawful act).

It appears that appellant first requested the charge then later withdrew the request, but still later excepted to the charge as a whole because the court did not charge on the issue of negligent homicide in the second degree. Since the appellant excepted to the absence of the charge the error, if any, in giving the charge was invited and could not be reversible error. See Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975); Boykin v. State, 513 S.W.2d 820 (Tex.Cr.App.1974); Hendrix v. State, 459 S.W.2d 634 (Tex.Cr.App.1970). Further, we fail to see how the giving of the charge was calculated to deprive the appellant of any right or to deprive him of a fair trial. See Article 36.19, Vernon’s Ann.C.C.P.

Appellant further contends that the court committed reversible error in failing to instruct the jury relative to Article 44, Vernon’s Ann.P.C., 1925, which provided:

“One intending to commit a misdemeanor and who in the act of preparing for or executing the same shall through mistake commit a felony shall receive the lowest punishment affixed to the felony.”

Under the foregoing statute an accused is actually guilty of the felony mistakenly committed. Crawford v. State, 511 S.W.2d 14 (Tex.Cr.App.1974); Key v. State, 71 Tex.Cr.R. 642, 161 S.W. 121 (1913). The only amelioration provided is that the accused shall receive the lowest punishment for the felony committed. Key v. State, supra.

Appellant argues that the evidence revealed that he placed a pistol against the head of the deceased to induce a confession, which was aggravated assault or some misdemeanor, and that he committed a felony by mistake from shooting what he felt was an unloaded pistol.

The record reflects that appellant requested a charge on Article 44, supra, at the guilt stage of the bifurcated trial, which was denied, but made no objection nor submitted a special requested charge at the penalty stage of the trial. The trial court charged on the murder at the guilt stage and did not submit the issue of whether it was with or without malice and the penalties involved until the punishment stage. This was in accordance with Brazile v. State, 497 S.W.2d 302 (Tex.Cr.App.1973).

In Ruiz v. State, supra, the court did not charge at the guilt stage on the definition of malice aforethought and murder without malice, though such matters were submitted at the penalty stage of the trial. There we adhered to Brazile and stated:

“All voluntary killings are murder, and the presence or absence of malice relates only to the punishment. Thus it would appear proper to submit the issue of malice only during the punishment stage.”

See also Hanks v. State, 542 S.W.2d 413 (Tex.Cr.App.1976); Armentrout v. State, 515 S.W.2d 297 (Tex.Cr.App.1974); Foster v. State, 493 S.W.2d 812 (Tex.Cr.App.1973).

The provisions of Article 44, supra, relate only to punishment, and the charge thereunder should have been submitted at the penalty stage of the bifurcated trial procedure under Article 37.07, Vernon’s Ann.C.C.P. Although appellant requested such a charge at the guilt stage, he failed to renew such request or object at the penalty stage. In Mosley v. State, 490 S.W.2d 842 (Tex.Cr.App.1973), this court held that objections to the charge at the guilt stage of the trial which are premature must be re-offered at the penalty stage in order that the court will not be “sandbagged.” See and cf. Foster v. State, supra; Daniels v. State, 527 S.W.2d 549 (Tex.Cr.App.1975). Appellant waived any complaint on appeal by failing to object or offer a special requested charge at the penalty stage of the trial.

Appellant further urges that the court erred in failing to instruct the jury that the res gestae statements admitted in evidence could be considered on the issue of intent. The appellant cites no authority for his contention. We find that the court did charge the jury, “You are further instructed as a part of the law in this case that intent may be inferred from acts done, if any, or words spoken, if any.” The charge, as given, amply protected the rights of the accused in this regard and avoided any comment on the weight of the evidence as prohibited by Article 36.14, Vernon’s Ann.C. C.P. Cf. Friga v. State, 488 S.W.2d 430 (Tex.Cr.App.1973). The contention is overruled. We further observe that in jury argument appellant’s counsel referred to the court’s charge and evidence of appellant’s res gestae at the guilt stage of the trial.

As to jury argument, appellant complains of the prosecutor’s argument at the guilt stage of the trial as being outside the record and unsupported by the evidence when the prosecutor speculated that if the deceased had not died, the confession had been coerced, and the deceased had been on trial, the appellant would have not testified that he held the pistol to the deceased’s head and that he would lie to cover up his violation. The record then reflects:

“MR. BURLESON (defense counsel): We object to that. There is no evidence whatsoever that—
“MR. MULDER (prosecutor): Reasonable to deduce.
“THE COURT: Counsel, he has a right to draw his own conclusion from the testimony.
“MR. BURLESON: He didn’t say that previously, that was my objection.
“THE COURT: Overrule the objection.”

Thereafter, the prosecutor continued the same line of argument.

An objection must be made as soon as the ground of objection becomes apparent. Ford v. State, 500 S.W.2d 827 (Tex.Cr.App.1973); Compton v. State, 500 S.W.2d 131 (Tex.Cr.App.1973); Sierra v. State, 482 S.W.2d 259 (Tex.Cr.App.1972). Objection to the argument must come at the time of argument if error is to be preserved. Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972); Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972); Ricondo v. State, 475 S.W.2d 793 (Tex.Cr.App.1971). We observe that the prosecutor argued at some length along the lines now complained of before the first objection was interposed.

The objection offered was, “He didn’t say that previously, that was my objection.” It does not appear this objection was sufficient to bring the trial court’s attention to the error now complained of on appeal. See Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976); Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976); Williams v. State, 531 S.W.2d 606 (Tex.Cr.App.1976).

Under the circumstances presented, we need not pursue the question of whether the argument was also invited by the earlier defense argument that the State’s theory was that the appellant, a career police officer, placed a loaded gun to the deceased’s head, in order to induce a confession and to learn the name of the third person involved in the burglary, when as an officer he knew that there were three or four witnesses and that he would have to go to court.

Appellant’s contention is overruled.

In another ground of error appellant again complains that the prosecutor argued outside the record and gave unsworn testimony. '

The record shows that at the guilt stage of the trial the prosecutor Mulder stated:

“And I will tell you, the only thing worse than killing a handcuffed child, a 12-year-old child who is handcuffed in a squad car, who had been involved in a burglary from a Fina station, the only thing worse than that—
“MR. BURLESON (defense counsel): We object to him telling the jury something that is not in evidence and giving un-sworn testimony to the jury. It’s his personal opinion; we object.
“THE COURT: What part of your objection—
“MR. BURLESON: Object to him stating, ‘I’m going to tell you something that’s worse.’ That’s not based upon any evidence, it’s his opinion. It’s outside the record.
“MR. MULDER: He hasn’t heard what I was going to say.
“THE COURT: He hasn’t said anything objectionable that I know of yet, counsel.
“MR. MULDER: The only thing worse than killing a child who is handcuffed, who is involved in a burglary, is killing a child who was handcuffed who was totally blameless, and totally innocent.”

No other objection was offered after the prosecutor had completed his statement.

First, we observe that appellant did not press the court to an adverse conclusory ruling and therefore waived error, if any. Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1976); Braxton v. State, 528 S.W.2d 844 (Tex.Cr.App.1975); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975).

Further, when the prosecutor’s statement was completed, no objection was made. Nothing is presented for review. Joines v. State, supra; Olson v. State, supra; Ricondo v. State, supra.

Regardless of the above, the argument appears to be a reasonable deduction from the evidence. There was testimony the deceased denied any complicity in the burglary before being shot. David Rodriguez also denied being involved and testified he and the deceased were home asleep at the time of the offense. Officer Jenkins testified that the service station was dusted for fingerprints and neither the fingerprints of the deceased nor those of David Rodriguez were found. If the argument is a reasonable deduction from the evidence, no error is shown. Hoagland v. State, 494 S.W.2d 186 (Tex.Cr.App.1973); Lopez v. State, 490 S.W.2d 565 (Tex.Cr.App.1973).

In another ground of error appellant complains that the court erred in overruling the objection to the prosecutor’s use before the jury of a policeman’s badge which was never identified or offered into evidence.

In his closing argument at the guilt stage of the trial, the prosecutor referred to the Roman legions and the shield which they erected when they seized new territories which bore Latin words which when translated mean, “In this sign we conquer.” He then argued that from this ancient shield of Rome “evolved the badge or shield of law enforcement, a badge or shield that has been worn proudly by many, many brave men.” The record then reflects:

“MR. BURLESON (defense counsel): We object to counsel demonstrating, showing something to the jury that has not been offered in evidence.
“MR. MULDER: You have all seen a policeman’s badge.
“THE COURT: Overrule the objection.”

The prosecutor then continued his argument that the badge or shield had come to mean, “In this sign we protect,” and that many men had laid down their lives because they believed in the principle. He then argued:

“. . . Darrell Cain has tarnished that badge or shield, he has cast aspersion upon it, he has tarnished that shield with the blood of Santos Rodriguez, for to Darrell Cain this symbolizes ‘In this sign I murder’.”

There were no objections to this line of argument.

After the jury retired to deliberate at the guilt stage of the trial, appellant’s counsel tendered an offer of proof reiterating his objection and its overruling and further stating that the prosecutor displayed a police badge to the jury on four separate occasions during the argument in such proximity that they could see the badge. See Article 40.09, § 6(d)(1), Vernon’s Ann.C. C.P.

The State urges that if the proffer of proof is taken as true, then the police badge was displayed three times without objection for the record only reflects one objection. The State then argues that if the badge were improperly before the jury its earlier or subsequent display without objection would render harmless the display to which objection was made, citing Wood v. State, 511 S.W.2d 37, 47 (Tex.Cr.App.1974); Vela v. State, 516 S.W.2d 176 (Tex.Cr.App.1974). It is well established that improper admission of evidence does not constitute reversible error if the same facts were shown by other facts to which there was no objection. Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976); Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974). It would appear that the error, if any, was waived by failure to object to the other three displays of the badge. Further, while the display of the badge which was not introduced into evidence should not have been made, it is difficult to see how the display would be reversible in light of the fact that evidence showed appellant wore a police uniform and badge on the night of the homicide and it is common knowledge that uniformed officers wear a badge as indicated by counsel’s statement to the prosecutor at the time of his objection. Undoubtedly the badge would have been admissible in evidence had it been offered, Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958), cert. den. 359 U.S. 965, 79 S.Ct. 876, 3 L.Ed.2d 834, and we cannot conclude under the circumstances described above that the improper display presents reversible error.

Appellant also advances as error the prosecutor’s argument at the penalty stage of the trial in which he contends the prosecutor attempted to bring community pressure to bear on the jury in assessing punishment.

In seeking probation from the jury, appellant’s counsel argued that appellant had never been convicted of any offense, that he would never be a police officer again, and that events such as in the instant case would never recur.

The prosecutor, opposing probation, made the following argument of which appellant complains:

“. . . But something else, too; there are some things in this world that are totally inexcusable, totally without excuse, and what Darrell Cain did to Santos Rodriguez is without justification and it’s totally without excuse.
“Now, what would you have us do, really? I mean, what are we to do, are we to look at the defendant over here and focus on him and his look of designed innocence and blind ourselves to the corpse of the boy he killed? If so, who is to answer for the death of Santos Rodriguez? Who? Are we to hear his cries and close our ears to the sobbing, mourning tears of those people that mourn Santos Rodriguez? If so, who is to answer for the death of Santos Rodriguez? Are we to do what Phil Burleson says, are we to wring our hands and shrug our shoulders and nod our heads, say oh, it’s a pity, but let’s give him probation. If so, then who is to answer for the death of Santos Rodriguez? You? Me? The community at large? I refuse—
“MR. BURLESON: We object to that, calling the community pressures upon this jury; we object and ask to instruct them not to consider it.
“MR. SPARLING: Your Honor, I have a right to argue law enforcement.
“THE COURT: Overrule the objection.”

An examination of the argument in the context in which it was made shows there was no appeal to community conscience, demand, desire or expectation unlike the cases cited by appellant. The prosecutor simply argued that the appellant bore the sole responsibility for the death of the deceased. The argument was for law enforcement and was proper. “Counsel for the State has the right, if not the duty, to make a proper argument for law enforcement. The argument made did not refer to the wishes of the community nor did it constitute unsworn testimony.” Phillips v. State, 450 S.W.2d 650 (Tex.Cr.App.1970). See also Crawford v. State, 511 S.W.2d 14 (Tex.Cr.App.1974); Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Bothwell v. State, 500 S.W.2d 128 (Tex.Cr.App.1973); Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App.1968).

Finding no reversible error, the judgment is affirmed.

      . The court submitted the issue of accident as follows:
      “You are instructed that homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the act of another, who is in the prosecution of a lawful object by lawful means.
      “Therefore, if you find and believe from the evidence that the defendant, Darrell L. Cain, in the County of Dallas, State of Texas, on or about the 24th day of July, 1973, did then and there kill Santos Rodriguez by shooting him with a gun, if he did, and you further find and believe from the evidence that the act of the defendant in shooting Santos Rodriguez was accidental while he, the said defendant, was in the prosecution of a lawful object by lawful means or if you have a reasonable doubt thereof then you will acquit the defendant and say by your verict, ‘Not Guilty.’ ”


source: Caselaw Access Project

author: ONION, Presiding Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Jimmy Don BATTEN, Appellant, v. The STATE of Texas, Appellee.
    No. 52240.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Rehearing Denied May 11, 1977.

      Jimmy Phillips, Jr., Angelton, for appellant.
    Ogden L. Bass, Dist. Atty., and A. B. Crowther, Jr., Asst. Dist. Atty., Angelton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the Class A misdemeanor of intentionally obstructing a peace officer from effecting an arrest. See V.T.C.A., Penal Code, § 38.-03. The jury assessed punishment at $100 fine, and appellant was placed on probation for six months. See Article 42.13, Vernon’s Ann.C.C.P.

At the outset we shall consider appellant’s contention that the trial court erred in discharging the jury when there was a conflict in the verdict returned.

The record reflects that at the penalty stage of the trial the jury was charged on the penalty for a Class A misdemeanor, which includes the possibility of both jail time and a fine, as well as on the law relating to misdemeanor probation. Verdict forms were also submitted. The forms were as follows:

The first form was as follows;

“We, the Jury, having heretofore found the Defendant guilty of resisting arrest, as charged in the information, now assess his punishment for said offense at-
Foreman of the Jury”
The second form read:
“We, the Jury, further find that the Defendant has never before been convicted in this or another jurisdiction of a felony or of a misdemeanor for which the maximum permissible punishment is by confinement in jail or exceeds a $200.00 fine, and he has not been under probation in the preceding five (5) years, and we recommend to the Court that $-of the fine, if any assessed and the confinement in jail, if any assessed against the Defendant in this case be probated.
Foreman of the Jury”

After the jury retired to deliberate, the jury sent the court a note inquiring: “Do we fill out both forms?” The State and appellant agreed that the court should answer:

“In order to grant probation it will be necessary to fill out both forms.”

This the court did. Later another note was submitted to the court, asking:

“Do we have to give him a jail sentence and then have it probated to put him on probation?”

The jury was brought to the courtroom where the judge stated:

“I refer you again to the Court’s Charge, which I have already given you. The punishment may be either by jail time or fine or both. You may probate any part of the fine or all of a fine. In order to probate jail time, all must be probated. Now, this is about as fully as I can answer your question. The matter of punishment is entirely up to you, and you may assess either jail time or a fine or both, or neither. It’s solely in your discretion. Do you understand?”

Subsequently the jury returned a verdict assessing appellant’s punishment at a $100 fine “and 0 days in jail,” using the first verdict form submitted. In filling out the second form, the jury found the appellant had not been so previously convicted so as to disqualify him for probation and that he had not been on probation in the preceding five years. The form then provided: “. and we recommend to the Court that $0000 of the fine, if any assessed and the confinement in jail, if any be assessed against the Defendant in this case be probated.”

Appellant’s counsel requested that the jury be polled. See Article 87.05, Vernon’s Ann.C.C.P. The polling of the jurors went as follows:

“Q. Debra King . . . Was it your verdict that the Defendant not be granted probation in this case?
“A. No, we want him to have probation. That’s why we signed the second page.
“Q. Mr. Bruce, was it your verdict that the Defendant not be granted probation in this case?
“A. Wanted him on probation.
“Q. Mr. Terrell, was it your verdict that the Defendant not be granted probation in this case?
“A. It was my intention to put him on probation.
“Q. Mr. Adams, was it your intention the Defendant not be granted probation in this case .
“A. For the Record, to grant him probation.
“Q. Mrs. Gwosdz, was your intention to grant the Defendant probation or not to grant the Defendant probation by your verdict?
“A. Granting of probation.
“Q. Mr. Bass, was your intention to grant the Defendant probation or not grant the Defendant probation by your verdict?
“A. Grant him probation of the jail sentence.”

Thereafter appellant’s counsel urged the court that the answers reflected the intention of the jury to grant probation and the jurors should be retired for further deliberations with appropriate instructions, or in the alternative a mistrial should be declared. The record then reflects:

“THE COURT: Mr. Bass, as Foreman of the Jury, as I read your verdict, it says that the punishment assessed is $100.00 and no days in jail?
“A. Yes, sir.
“THE COURT: Is that correct?
“A. Yes, sir.
“THE COURT: And you further recommend probation?
“A. Yes, sir, just the $100.00 fine.
“THE COURT: None of the time be probated?
“A. Yes, sir.”

Thereupon the court accepted the verdict and discharged the jury. He ordered that the appellant pay the $100 fine immediately and in addition be placed on probation for six months under certain probationary conditions.

The notes sent to the court by the jury indicated some confusion on their part as to the proceedings. The first note inquired if both verdict forms attached to the charge had to be utilized. The second note inquired if jail time was essential to the granting of probation, indicating that the issue of probation was being considered. The jury returned both verdict forms filled out. The first form assessed punishment at $100. The second form made findings necessary under Article 42.13, supra, for misdemeanor probation, but provided that “$0000 of the fine” be probated. If the jury had determined to deny probation, the second form of verdict need not have been utilized. The legal effect of the verdict forms on their face as returned would be to deny appellant probation. When polled, however, all of the jurors indicated they intended to place the appellant on probation.

At this point the court should have retired the jury for further deliberations under appropriate instructions, Article 37.-05, supra; Jones v. State, 511 S.W.2d 514 (Tex.Cr.App.1974), or altered the second verdict form with consent of the jury. Article 37.10, Vernon’s Ann.C.C.P.

The court instead interpreted the verdict and the jurors’ answers to mean that the jury intended that the fine was to be paid and in addition the appellant was to be placed on probation. If this was the jurors’ intention, it was beyond the jury’s authority. This is so because if the fine is to be paid there remains no penalty to be probated.

We do not interpret Article 42.13, supra, to authorize a jury to impose a penalty for the crime charged and have that penalty exacted from the accused and then in addition require that he serve a probationary supervisory period when there is neither a fine nor jail time to be probated. If it were otherwise, a defendant could have exacted from him the fine, the only punishment assessed, and yet be subject to probationary conditions, a more severe penalty than authorized by law. If such misdemeanor probation is revoked, no further punishment could be imposed. Only a judgment and sentence requiring payment of the fine, already paid, could be entered.

We hold that where the only punishment assessed by the jury is to be exacted from the defendant the jury under Article 42.13, supra, may not in addition thereto cause the defendant to be subjected to probation.

In refusing to retire the jury for further deliberations and in accepting the verdict forms and requiring the fine to be paid and appellant to be placed on probation for six months, the court fell into error. Cf. Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972). The punishment imposed was excessive and not authorized by law. The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The verdict returned by the jury is sufficient to show that a fine of $100 was assessed and none of it was to be probated. Apparently some of the jurors thought that he should have probation of a jail term, but no jail term was assessed. All that the jurors should have been asked under Article 37.05, V.A.C.C.P., was if the verdict returned was theirs.

The verdict is not ambiguous and the intention of the jury can be ascertained from it. The mental processes shown by the questioning of the jurors does not take away from the verdict. The reasoning and authority in Footnote 7 of the majority opinion are sufficient to show that the judgment based upon the $100 fine in the verdict should be affirmed.

ODOM, J., joins in this dissent.

      . V.T.C.A., Penal Code, § 12.21, provides:
      “An individual adjudged guilty of a Class A misdemeanor shall be punished by:
      “(1) a fine not to exceed $2,000;
      “(2) confinement in jail for a term not to exceed one year; or
      “(3) both such fine and imprisonment.”

      . We find no authority in Article 42.13, Vernon’s Ann.C.C.P., to support the jury instruction given in this case with which the second verdict form above is in accord that the jury may recommend that only a portion of the fine, if any assessed, be probated. It may be that the trial court has drawn inferences from some recent cases.
      Under Article 42.13, § 5(b)(8), supra, the trial court has the authority to require payment of any part of the fine assessed as a condition of probation. No question as to this authority would normally arise where the case is tried before the court or where the jury has not recommended probation. In Johnson v. State, 473 S.W.2d 939 (Tex.Cr.App.1971), involving a misdemeanor driving while intoxicated case, it was held that the jury should not be instructed that they can grant probation as to any fine assessed when that part of their verdict will not be followed by the court exercising its authority to require the payment of all or a part of the fine as a condition of probation. See also Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972); Oliva v. State, 500 S.W.2d 144 (Tex.Cr.App.1973).
      In Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1974), which involved a felony probation case (Article 42.12, Vernon’s Ann.C.C.P.), the court wrote:
      “The issue is well settled in this Court that when the jury has recommended probation on a fine the court may not require that it be paid. Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972). Also, where the jury has recommended probation and the punishment assessed was imprisonment and a fine, the court must probate both. Johnson v. State, 473 S.W.2d 939 (Tex.Cr.App.1971).”
      The Shappley decision quoted Castro v. State, 118 Tex.Cr.R. 53, 42 S.W.2d 779 (1931), with approval. There the trial court disregarded the recommendation of the jury that the sentence be suspended. On appeal this court held the action of the trial court violated the “. . fundamental principle that the judge presiding over a trial has no right and no power to change a verdict rendered by the jury unless with their consent and before their discharge.”
      The concurring opinion in Faugh observed that the majority opinion and the opinion in Johnson had left the inference, without so holding, that if the jury knew what action the court contemplated as to requirement of the payment of all or part of the fíne as a condition of probation no error would be presented.
      Apparently the trial judge in the instant case took the position that if the jury, under appropriate instructions, recommended that only a portion of the fine be probated that the balance of the fine could be required to be paid as a probationary condition under Article 42.13, supra, without violating the holdings of Johnson and Faugh.

      . See footnote # 2.

      . See Lee v. State, 516 S.W.2d 151 (Tex.Cr.App.1974), where it was held that where misdemeanor probation is granted the authority of the court insofar as confinement in jail is concerned is limited to the suspension of the entire term and not merely a part of it. See also Coby v. State, 518 S.W.2d 829 (Tex.Cr.App.1975).

      . Article 37.05, Vernon’s Ann.C.C.P., provides:
      “The State or the defendant shall have the right to have the jury polled, which is done by calling separately the name of each juror and asking him if the verdict is his. If all, when asked, answer in the affirmative, the verdict shall be entered upon the minutes; but if any juror answer in the negative, the jury shall retire again to consider its verdict.”
      In the early case of Bean v. State, 17 Tex.App. 60 (1884), it was held that in polling a jury it was not intended that the jurors shall be interrogated further than to ask each of them the direct question: “Is that your verdict?” If the juror answers in the affirmative, his answer is conclusive, and further inquiry is not permissible. See also Shelburne v. State, 111 Tex.Cr.R. 182, 11 S.W.2d 519 (1928). Cf. Jones v. State, 511 S.W.2d 514 (Tex.Cr.App.1974).

      . The foreman’s answers were somewhat confusing as he once stated there was to be probation of the “jail sentence” which had not been assessed and later stated he recommended probation for “just the $100.00.”

      . The State argues that there is sufficient evidence to “reform the verdict” and provide for the assessment of the $100 alone. The appellant, in the alternative to his request for reversal, argues that the $100 fine should be probated. Verdicts must be certain and their meaning and construction must not be left in doubt nor to speculation. Allen v. State, 138 Tex.Cr.R. 303, 136 S.W.2d 232 (1940). Where the punishment assessed is neither definite nor certain, the same is void. Rose v. State, 499 S.W.2d 12 (Tex.Cr.App.1973); Ex parte Frazier, 164 Tex.Cr.R. 572, 301 S.W.2d 655 (1957), and cases there cited. It is true that if the intention of the jury can be reasonably ascertained then the verdict should be upheld. Ainsworth v. State, 517 S.W.2d 274 (Tex.Cr.App.1975); Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974); Salas v. State, 474 S.W.2d 228 (Tex.Cr.App. 1971); Stewart v. State, 422 S.W.2d 928 (Tex.Cr.App.1968); Dotson v. State, 171 Tex.Cr.R. 62, 344 S.W.2d 879 (1961). In the instant case it is not possible from the record before us to reasonably ascertain the true intention of the jury. The State and the appellant are even in complete disagreement on the true intention of the jury.


text:
    Joseph Henry TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 53910.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Rehearing Denied May 10, 1977.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for driving a motor vehicle on a public highway while intoxicated. The jury assessed punishment at confinement in jail for one (1) year and at a fine of $500.00. The jury found appellant eligible for probation under the terms of Article 42.13, Vernon’s Ann. C.C.P., and recommended that the fine only be probated. The court ordered the fine be probated for a period of eighteen months. Judgment was then entered and sentence pronounced reflecting the jury’s verdict and the court’s action thereon.

The record is before us without a transcription of the court reporter’s notes. No brief was filed in the trial court in appellant’s behalf as is required by Article 40.09, § 9, Vernon’s Ann.C.C.P. No question of indigency is raised. Nevertheless, in light of the punishment assessed, we shall review whether that penalty and the probation granted were properly handled under Article 42.13, supra, “in the interest of justice.” Article 40.09, § 13, Vernon’s Ann.C. C.P.

At the penalty stage of the trial the court instructed the jury on the penalty applicable to driving while intoxicated and on the law of misdemeanor probation. Two verdict forms were submitted along with these instructions as follows:

“Verdict Forms
“We, the Jury, having found the Defendant, Joseph H. Taylor, Guilty of the offense of Driving While Intoxicated, now assess his punishment at confinement in the County Jail for a period of _ and a fine of $_•
“Foreman of the Jury
“Or
“We, the Jury, having found the Defendant, Joseph H. Taylor, Guilty of the offense of Driving While Intoxicated, now assess his punishment at confinement in the County Jail for a period of _, and a fine of $_, and we further find the Defendant has not been granted probation nor been under probation under the Misdemeanor Probation Act of this State, or any other Act, in the preceding five years, and we further find and believe that the ends of justice, and the best interest of society and of the Defendant will be subserved by granting Defendant probation under the Misdemeanor Probation Act of this State. We therefore recommend to the Court that the
(‘jail time’ or ‘fine’ or ‘jail time & fine’) assessed against the Defendant in this case, be probated.
“Foreman of the Jury”
During deliberations at the penalty stage of the trial the jury sent the following note to the court:
“Does the jail time and the fine run concurrent. If we asses (sic) jail time but probate the fine, when does the probation on the fine expire?”

The court answered:

“The length of the period of probation is not for consideration by the Jury.”

The jury then utilized the second verdict form set out above by assessing punishment at one year in the county jail and at a fine of $500.00. The jury further recommended the “fine” be probated.

Article 42.13, § 3(b), Vernon’s Ann.C.C.P., provides:

“(b) If a defendant satisfies all the requirements of Section 3(a)(1), (2), (3) and (4) of this Article, and the jury hearing his case recommends probation in its verdict, the court must grant the defendant probation. The court may grant the defendant probation regardless of the recommendation of the jury or the prior conviction of the defendant, except for a like offense within the last five years. The court may, however, extend the term of the probationary period to any length of time not exceeding the maximum time of confinement allowed by law. In the event probation is revoked in accordance with Section 6, the judgment of the court shall not prescribe any penalty in excess of that imposed by the jury.”

§ 4 of the statute provides:

“(a) When a defendant is granted probation under the terms of this Act, the finding of guilt does not become final, nor may the court render judgment thereon, except as provided in Section 6 of this Article. (Emphasis added.)
“(b) The court shall record the fact and date that probation was granted on the docket sheet or in the minutes of the court. The court shall also note the period and terms of the probation, and the details of the judgment. The court’s records may not reflect a final conviction, however, unless probation is later revoked in accordance with Section 6 of this Article.”

§ 6 of the Act deals with revocation of misdemeanor probation and provides in part:

“(b) On the date the probation is revoked, the finding of guilty becomes final and the court shall render judgment thereon against the defendant. The judgment shall be enforced as in other cases and the time served on probation may not be credited or otherwise considered for any purpose.”
§ 7 of the statute provides as follows:
“(a) When the period and terms of a probation have been satisfactorily completed, the court shall, upon its own motion, discharge him from probation and enter an order in the minutes of the court setting aside the finding of guilty and dismissing the accusation or complaint and the information or indictment against the probationer.
“(b) After the case against the probationer is dismissed by the court, his finding of guilty may not be considered for any purpose except to determine his entitlement to a future probation under this Act, or any other probation Act.”

§ 4 clearly provides that when misdemeanor probation is granted the finding of guilt does not become final and the court is prohibited from rendering judgment thereon except in the subsequent event of revocation. This court has repeatedly held that no judgment should be entered where probation is granted in a misdemeanor case. See Ex parte Smith, 493 S.W.2d 958 (Tex.Cr.App.1973); Lee v. State, 516 S.W.2d 151 (Tex.Cr.App.1974); Coby v. State, 518 S.W.2d 829 (Tex.Cr.App.1975); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976) (footnote # 1).

All of this is reinforced by the provisions of § 6 of Article 42.13, supra, that judgment is not to be entered until the revocation of probation.

In Lee v. State, supra, it was written:

“. . . The record also contains what purports to be a sentence. This ‘sentence’ is a nullity, since where probation is granted in a misdemeanor conviction the- court does not render either a judgment or sentence except in the event of a revocation of probation.” See also Coby v. State, supra.

In Lee the jury found the defendant guilty of selling an obscene magazine (Article 527, Vernon’s Ann.P.C., 1925), and subsequently the court assessed punishment at a fine of $1,000.00 and confinement in jail for six months, the last four months of which were to be probated. There this court held that where probation is granted in a misdemeanor conviction authority of the court insofar as confinement in jail is concerned is limited to suspension of the entire term and not merely part of it. The “order of trial court assessing the penalty” was reformed to show the entire six months in jail was to be probated and requiring the payment of the $1,000.00 fine. The payment of the fine was upheld under Article 42.13, § 5(b)(8), Vernon’s Ann.C.C.P., which authorizes the court where it assesses punishment to direct payment of all or any portion of a fine as a condition of probation. Lee v. State, supra (footnote # l).

In Coby v. State, supra, the defendant was convicted of aggravated assault. His punishment, assessed by the jury, was a $1,000.00 fine, probated, and twenty-four (24) months in jail, thirty days to be served and the balance probated. Lee was cited with approval as to the limitation on the authority of the court to suspend the entire jail term and not merely part of it. In Lee the punishment was assessed by the court and could be reformed by this court, but in Goby the punishment was assessed by the jury and the verdict could not be reformed. The cause was reversed and remanded.

Unlike the Lee and Goby cases, there was no attempt to probate part of the jail time in the instant case. The trial court instructed the jury at the penalty stage of the bifurcated trial that they must assess both a fine and jail time. It also instructed the jury on the law of misdemeanor probation. By the verdict forms attached to the court’s charge, the court authorized the jury to assess jail time and probate the fine, assess a fine and probate the jail time or probate both the fine and jail time. The jury assessed jail time and recommended probation as to the fine assessed. The court accepted such verdict and entered judgment and sentence as to the jail time.

In authorizing the jury to probate either the fine or the jail time and to exact from the appellant that portion of the penalty not probated, the court fell into error. Article 42.13, supra, does not contemplate such procedure. The jury may recommend probation or not, but if it recommends probation then the penalty assessed, whether fine, jail time or both a fine and jail time, must be probated. The statute expressly provides that where misdemeanor probation is granted no judgment is to be entered and the finding of guilt is not to become final except upon revocation. And this court has held that judgments and sentences entered in misdemeanor cases prior to revocation are nullities. Lee v. State, supra; Coby v. State, supra. The statute did not intend that a judgment and sentence disposing of a part of the penalty assessed be entered and the remaining penalty be probated. If this was not so then upon successful completion of probation the accusation, complaint, information or indictment would be dismissed and the finding of guilty may not be considered for any purpose except to determine his future eligibility for probation, see § 7 of Article 42.13, supra, yet there would still be outstanding judgment and sentence as to part of the penalty assessed which was exacted from the defendant. This is not what Article 42.13, supra, intended.

The court having misled the jury as to their authority regarding probation and the verdict not now being reformable, Coby v. State, supra, the judgment is reversed and the cause remanded.

DOUGLAS and ODOM, JJ., dissent.

      . No question of the court’s authority to direct payment of all or any portion of the fine assessed as a condition of probation would arise where the case is tried before the court or where the jury does not recommend probation and the court grants probation. However, in Johnson v. State, 473 S.W.2d 939 (Tex.Cr.App.1971), involving a misdemeanor driving while intoxicated case, it was held that the jury should not be instructed that they can grant probation as to any fine assessed when that part of their verdict will not be followed by the court exercising its authority to require the payment of all or a part of the fine as a condition of probation. See also Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972); Oliva v. State, 500 S.W.2d 144 (Tex.Cr.App.1973). Cf. Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1975).

      . See Article 6701/-1, Vernon’s Ann.C.S. (formerly Article 802, Vernon’s Ann.P.C.), which provides that any person convicted of driving while intoxicated shall be punished by confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine of not less than fifty dollars nor more than five hundred ($500.00) dollars.

      . If the jury in the instant case had recommended probation as to both the fine and jail time, and the court had followed § 4 of the Article 42.13, supra, no question would have been presented.


author: DALLY, Commissioner.

text:
    Billy Ray ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 53076.
    Court of Criminal Appeals of Texas.
    April 20, 1977.
    Rehearing Denied May 10, 1977.
    Dan J. Anderson, Richardson, for appellant.
    Henry Wade, Dist. Atty., and John Tatum, Asst. Dist. Atty., Dallas, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated robbery; the punishment is imprisonment for 16 years.

In view of our disposition of this appeal we will only discuss appellant’s contention that the court erred in not responding to his timely written objection complaining that the court’s charge did not include an instruction on the law pertaining to the vol-untariness of his written confession. Appellant argues that the evidence before the jury was sufficient to raise a fact issue of whether he had the mental capacity to understand his constitutional rights and thus make a knowing and intelligent waiver of those rights when he made and signed the confession. We agree and reverse the conviction.

The appellant was eighteen years of age at the time of the offense; his confession was taken on the same day as the offense. Appellant did not complete the first grade of elementary school and had only attended special aid classes. He could not read, and he could not write, except that he could write his name. Police Officer K. W. Bangs did not know that the appellant could not read or write when he took the appellant’s statement. Officer Bangs said that if he had known the appellant was illiterate he would not have taken the appellant’s statement in the manner that he did because he would not have been convinced that the appellant understood what was in the statement.

Dr. John Price, a clinical psychologist, had administered I.Q. tests to the appellant when he was fourteen years old. Appellant had an I.Q. of 61 and was suffering from mild mental retardation. In laymen’s terms, appellant would formerly have been classified as a moron. While the tests were administered four years prior to the offense, Dr. Price’s opinion was that appellant would not score significantly higher at the time of the trial. Dr. Price stated that appellant was an impulsive type individual and could easily be led by other persons.

When Dr. Price administered the tests to appellant at age fourteen, appellant was illiterate and could not solve any printed arithmetic problems. He could only spell his name and “cat.” Appellant could not pronounce words, could only pronounce some and mispronounced many of the letters of the alphabet. Dr. Price stated that at the time he saw the appellant he doubted whether appellant could understand the warning printed at the top of the confession form. Dr. Price’s opinion was that appellant would not understand the words “terminate,” “coercion,” “proper judicial authority,” or “knowing and intelligent waiver.” However, Dr. Price said that there was a good chance appellant would understand these words if they were explained to him and repeated.

Dr. John Holbrook, a psychiatrist, examined the appellant approximately six months after the offense. He also found the appellant to be suffering from mild mental retardation. He was also of the opinion that appellant would not understand the words “coercion” or “proper judicial authority.” Dr. Holbrook’s opinion was that appellant had the ability to assimilate the general idea or concept of the constitutional rights printed at the top of the confession form; however, he felt appellant would have difficulty with certain parts of the terminology contained in the form.

Police Officer K. W. Bangs explained to appellant his rights on the way to the police station and again before he took appellant’s statement. He said he explained the rights step by step to be sure appellant understood each individual right. A clerk, Mary Bel-ford, typed the confession from Officer Bangs’ notes and witnessed appellant sign the confession. Before appellant signed the statement, Officer Bangs gave appellant and Mrs. Belford a copy to read while he read the statement to appellant, including the printed warning at the top. Neither Bangs nor Mrs. Belford was aware that appellant could not read. They said the appellant appeared to be reading along as Bangs read the statement. The appellant indicated that the statement was his and signed it in front of Mrs. Belford. Both Bangs and Mrs. Belford said the appellant appeared to understand what was happening and that he appeared normal.

In Washington v. State, 388 S.W .2d 200 (Tex.Cr.App.1965), expert witnesses testified that the defendant suffered from mild mental retardation. He had a very small amount of general information, and his ability to comprehend information and put it together was quite limited. Washington’s I.Q. “would place him at the very extreme lower limits of normal in his functioning.” The defendant had been confined in jail approximately fifty hours after arrest and before he gave his confession. This Court held that the trial court did not err in admitting the confession in evidence, but it was held to be reversible error for the court not to charge the jury on the issue of the voluntariness of the confession in response to a timely objection.

In Moreno v. State, 511 S.W.2d 273 (Tex.Cr.App.1974), the decision in Washington v. State, supra, was explained. In Moreno it was said that there was no evidence of a coercive environment surrounding the taking of Moreno’s confession and the court held that Moreno’s youthful age alone would not create a fact issue for the jury as to the voluntariness of the confession. In the case at bar, while there is no evidence of a coercive atmosphere as was the situation in Washington, there is evidence that appellant did not have the mental capacity to understand the warnings he was given prior to giving his statement to the police.

In Bizzarri v. State, 492 S.W.2d 944 (Tex.Cr.App.1973), testimony was offered before the jury that the defendant was of low mentality and had only spent six years in special education classes. The jury was instructed not to consider the statement if it believed or had a reasonable doubt that the defendant made the statement while she was in such a mental condition that she did not know or understand what she was doing. This Court said:

“. . . although testimony of her low mentality would not be without weight on the question of admissibility of a confession of a crime, the fact that it was made by one whose mentality was at a lower level is to be taken into consideration and viewed as a fact or indicating, although not establishing, that the confession was lacking in voluntariness.
“Whether appellant had the mental competency or intelligence required to waive her rights was for the Court and jury. The issue was fairly presented and resolved against appellant.” (Emphasis added.)

The defendant in Encina v. State, 471 S.W.2d 384 (Tex.Cr.App.1971), offered the testimony of his counselor in elementary school. The counselor’s school records, made some five years prior to the time the confession was made, indicated that defendant had done poorly in school and was frequently absent. Encina had an I.Q. of 64, “the highest of what is considered mentally moron.” Encina did not request that the jury be charged concerning the voluntariness of his confession, but argued that the evidence conclusively established his lack of mental capacity. In rejecting this contention it was said:

“While it is true that the testimony of the school counselor raises an issue of fact as to whether or not appellant had the mental capacity to make a voluntary waiver of his rights, it does not clearly show that appellant was incapable of waiving his rights.” (Emphasis added.)

In Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970), it was stated:

“Of course, if the mental subnormality is so great that an accused is incapable of understanding the meaning and effect of his confession, then it would not be admissible. Grayson v. State, 40 Tex.Cr.R. 573, 51 S.W. 246.
“In Hanus v. State, 104 Tex.Cr.R. 543, 286 S.W. 218, it was pointed out that there is considerable authority for the proposition that in determining the admissibility of a confession of a crime, the fact that it was made by one whose mentality was at a lower than normal level is to be taken into consideration and viewed as a factor indicating, although not estab lishing, that the confession was lacking in voluntariness.” (Emphasis added.)

In Casias v. State, supra, the trial court instructed the jury generally on the volun-tariness of the confession, but refused the defendant’s special instruction to the jury to disregard his confession if they found from the evidence or had a reasonable doubt that he did not have the mental ability to understand the contents thereof and the warnings allegedly given. This Court stated:

“While the trial court might have been well advised to have responded to appellant’s objection to the charge, we cannot conclude, in light of the evidence offered, the charge on voluntariness and counsel’s jury argument on intelligence and mental ability as a factor to be considered in determining voluntariness, that the court’s failure to charge as desired was calculated to injure appellant’s rights or deprive him of a fair and impartial trial.”

In the case at bar the trial court did not give the jury an opportunity to consider whether or not appellant knowingly, intelligently and voluntarily waived his rights prior to making his confession. The absence of even a general charge on this issue would prevent appellant’s counsel from arguing appellant’s mental incapacity as a factor in determining the voluntariness of the confession as was done in Casias v. State, supra.

We recognize that appellant’s objection to the court’s charge for its failure to include instructions on the voluntariness of the confession did not point out to the trial court exactly what evidence he believed raised the issue of voluntariness. However, in view of the decision in Casias v. State, supra, that a general charge on the issue of the voluntariness was sufficient for the jury to pass upon the issue of Casias’ mental capacity as a factor to be considered in determining whether the confession was voluntary, we hold that appellant’s objection to the absence of even a general charge on voluntariness of the confession was sufficient to preserve his complaint for review.

Objections very similar to those in the case at bar were made to the admission of confessions in the cases of Hatke v. State, 455 S.W.2d 310 (Tex.Cr.App.197Q); Casias v. State, supra; Price v. State, 496 S.W.2d 103 (Tex.Cr.App.1973); Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972); and Born v. State, 411 S.W.2d 739 (Tex.Cr.App.1967). This Court held that each of the confessions was admissible in the circumstance of each case; however, in each case the jury was charged on the issue of the voluntariness of the confession.

The State argues, relying on the case of Jones v. State, 156 Tex.Cr.R. 475, 243 S.W.2d 848 (1951), that the charge on insanity adequately protected the appellant’s rights because the confession was given the same day as the offense. The State says that since the jury found the appellant was sane at the time of the offense this is equivalent to a finding that appellant was not suffering from a mental defect or incapacity at the time the confession was given. A person can be sane, that is, he may know that his conduct is wrong and he may be capable of conforming his conduct to the requirements of the law, yet at the same time be mentally incapable of understanding his constitutional rights concerning the making of a confession. The issue of insanity as a defense and the issue of a person’s mental capacity to understand his constitutional rights are entirely distinct. In Jones v. State, supra, the opinion indicates that the appellant’s complaint concerned the “failure of the court to give a special charge on the question of insanity of appellant at the time of the making of the confession.” We have pointed out in the instant case that insanity at the time the confession was given is not the issue, as it apparently was in Jones v. State, supra.

Article 38.22, V.A.C.C.P., provides that when the issue of the voluntariness is raised by the evidence before the jury the jurors shall be instructed that unless they believe beyond a reasonable doubt that the statement was voluntarily made, they shall not consider such statement for any purpose. Even though the State offered evidence that appellant understood his rights and voluntarily waived these rights prior to giving his statement, the evidence that appellant lacked the mental capacity to understand his rights was before the jury and raised an issue of fact. The trial court was correct in admitting the confession, but erred in failing to charge the jury on the issue of voluntariness of the confession as required by Article 38.22, V.A.C.C.P., when there is an issue of fact.

In another ground of error the appellant complains of the trial court’s failure to make findings of fact on the voluntariness of the confession concerning whether the appellant had sufficient mental ability to understand the statutory warnings. In the event the appellant’s confession is offered in evidence upon another trial of this cause, the trial court should make findings of fact as to the appellant’s mental ability to understand his constitutional rights.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: BROWN, Commissioner. DOUGLAS, Judge,

text:
    Noah Edmond DUNCAN, Appellant, v. The STATE of Texas, Appellee.
    No. 52496.
    Court of Criminal Appeals of Texas.
    April 27, 1977.
    Gerald A. Woolf, Houston, for appellant.
    Ogden Bass, Dist. Atty., and Thomas W. Watson, Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for possession of heroin. Appellant waived his right to a jury and was tried before the court which assessed punishment at four (4) years in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Appellant’s sole ground of error is that the trial court erred in admitting into evidence the heroin seized from appellant’s person because it was obtained as the result of an unreasonable search and seizure.

Officer William Purcell of the Freeport Police Department testified that he was on patrol on the night of November 13, 1974 and went to the Cozy Lounge in Freeport at about 10:00 p. m. Purcell said that he and his partner were “checking bars in the 200 Block of South A” and they “observed a subject go into the Cozy Lounge” so they followed him in and asked for some identification. There was no reason given for “checking” the bars, nor did Purcell state why the “subject” attracted his attention. Purcell said that they stepped outside and the subject, later identified as appellant, produced a valid Texas driver’s license. Purcell testified that appellant told them he lived in Alvin and was in Freeport visiting friends. Purcell said appellant was not under arrest at that time and was free to go. He said appellant got into his car, a hardtop bearing Tennessee license plates, and backed out of the parking area. Purcell said that appellant backed out of the lot improperly and that he made an improper start, spinning his tires and throwing gravel, and that he left at an excessive rate of speed. Purcell said that he got in his patrol car to follow appellant in an effort to warn him that backing out across the street and speeding off would be dangerous to pedestrians. He also stated that he was curious to find out why a person with a Texas driver’s license who lived in Alvin would be driving a car with Tennessee license plates. Purcell said that he stopped appellant within a few blocks. He said he got out of his car and appellant got out of his car and approached him and he saw appellant putting something in his back pocket. He said that when he got closer to appellant he determined that the object in his back pocket was a plastic bag. Purcell said that he could see by the light of nearby street lights and businesses that the object was a plastic bag, but he could not see what was inside the bag. He stated that he asked appellant what it was and at the same time grabbed the bag and pulled it out of appellant’s pocket and appellant pushed him back and ran away. The officer said he chased appellant down an alleyway and saw him throw down another bag and he then grabbed appellant by the hair and wrestled him to the ground. After subduing appellant, the officer reached down to pick up the second plastic bag and appellant kicked the bag in what the officer described as an attempt to scatter its contents. The officer described the contents of the bag as a green leafy substance which he believed to be marihuana. He further stated that the first bag contained the same substance as well as a piece of folded tinfoil which contained a brown powder. Purcell stated that at this time he placed appellant under arrest.

The powder in the tinfoil packet found in the first plastic baggie which the officer grabbed from appellant’s pocket was later shown to be heroin. This evidence was admitted over appellant’s timely objection. The issue before us is whether the evidence was legally seized from appellant’s person.

The State contends that the heroin was seized incident to a valid arrest. The officer’s testimony does not support this theory. Purcell testified that it was not his intention to arrest appellant or to issue him a traffic citation. He stated that he followed him and stopped him only to warn him that the manner of his departure from the parking area could be dangerous to pedestrians.

The protection of the officer is the justification for the rule permitting search incident to arrest as it was established by the Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). See Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972); Merriweather v. State, 501 S.W.2d 887 (Tex.Cr.App.1973) and Parker v. State, 544 S.W.2d 149 (Tex.Cr.App., decided December 8, 1976).

Purcell gave no testimony which indicated that he was in fear of his life or that he thought appellant might be armed. When he approached appellant to warn him about his manner of driving, he saw him put something in his back pocket and saw that the object was a plastic bag which the officer immediately grabbed.

Since appellant was not under arrest at the time the officer grabbed for the plastic baggie, we must look to see if there are other “circumstances falling short of probable cause for an arrest” which may justify temporary detention for purposes of investigation, since an investigation is considered to be a lesser intrusion upon the personal security of an individual than is an arrest. Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976) and cases cited therein; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In such an investigative “stop and frisk” situation, like a search incident to arrest, it is the officer’s safety which provides the primary justification for the limited pat down search of the accused. Terry v. Ohio, supra. See Ablon, supra, and Crawford v. State, 544 S.W.2d 163 (Tex.Cr.App., decided December 15, 1976).

Purcell’s testimony established none of the “specific and articulable facts and circumstances” which would warrant the reasonable belief that his safety was in danger or that appellant was armed. See Tardiff v. State, 548 S.W.2d 380 (Tex.Cr.App., decided January 5, 1977) in which the officer observed a bulge in the accused’s pants which he thought to be a weapon. In the instant case Purcell testified that he grabbed the plastic baggie to “see what was in it.” The facts and circumstances do not support an investigative stop and frisk.

Nor does the theory of “plain view” justify the search. Even though an officer is justified in seizing contraband which falls within view, the officer must be legitimately in the position to view the object and it must be immediately apparent to him that the object is contraband. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973).

In Nicholas we held illegal the seizure of photographic negatives which depicted the accused in an act of intercourse with a child because, even though the officers could see the negatives in plain view during their arrest of the accused, they could not know that they depicted an illegal act until they examined them closely.

In the instant case, the officer was legitimately in position to view any contraband; however, by his own testimony, he did not know what the plastic baggie contained and he expressed no suspicion as to what it might contain. Even though we are aware of the popular use of plastic bags as containers for controlled substances, we cannot hold that the bag itself is contraband in the absence of some showing that the officer saw what appeared to be a contraband substance in the bag.

We think that the Supreme Court case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967) is controlling. In that case the officers had Sibron under surveillance for a period of eight hours during which they observed him in conversation with known narcotics addicts. They later followed him into a restaurant where they saw him speak with three more known addicts. An officer approached Sibron and requested him to step outside the restaurant where the officer told him, “you know what I am after.” Sibron mumbled something and reached into his pocket and the officer simultaneously thrust his hand into the same pocket and discovered several glassine envelopes containing heroin. The Supreme Court held the heroin inadmissible, stating,

“Nothing resembling probable cause existed until after the search had turned up the envelopes of heroin. It is axiomatic that an incident search may not precede an arrest and serve as part of its justification . . . [Nor could it be classified as a Terry v. Ohio type of stop and frisk for the safety and protection of the officer . . .] Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous . . . ” (Emphasis added).

The officer’s actions in the instant case do not fall within any of the recognized exceptions to the prohibitions against unreasonable searches and seizures. The trial court therefore erred in admitting the heroin into evidence.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The majority reverses this conviction holding that the evidence obtained was the result of an unreasonable search and seizure. The evidence shows that the officer had a right to stop appellant.

On the night of November 13, 1974, at approximately 10:00 p. m., Officer William Purcell of the Freeport Police Department and Officer Broadus began checking bars in the 200 block of South A Street in Freeport. Their attention was drawn to appellant as he entered the Cozy Lounge. The officers went inside and asked him for identification. Appellant and the two officers walked outside where he showed them a valid Texas driver’s license. Appellant told the officers that he lived in Alvin and was picking up some beer for friends he was visiting in Freeport. Purcell testified that appellant never was under arrest and was free to leave at any time. He stated that while appellant appeared nervous during their conversation he had no reason to suspect him of any wrongdoing in that his explanation of his presence there sounded reasonable. Appellant then got in his car which was parked just down from Purcell’s patrol car. He backed out of the parking area across another lane of traffic and then used excessive acceleration in taking off, “his tires were spinning and throwing gravel.” The officer testified that he got in his patrol ear so that he could stop appellant and issue him a warning for improper backing and excessive acceleration. Purcell testified that appellant was in violation of the city ordinance relating to backing of a vehicle. He stated that he did not intend to give appellant a ticket but only a warning and that he was also curious to find out why appellant was driving a vehicle with Tennessee license plates. Purcell stopped appellant within a few blocks. When he got out of his patrol car, appellant got out of his car and approached him. He saw appellant putting something in his back pocket. When he got closer to him he noticed that the object in appellant’s back pocket was a plastic bag. While he could not see the contents of the plastic bag, the light of nearby street lights and businesses enabled him to see that the object was a plastic bag. Purcell stated that simultaneous with asking appellant about the bag he grabbed the bag and pulled it from appellant’s pocket. Appellant pushed Purcell and ran. Purcell gave chase down an alley and saw him throw down another bag. Finally he caught appellant by the hair and wrestled him to the ground and handcuffed him. As Purcell reached down to pick up the second bag, appellant started kicking at it in an attempt to scatter the contents. Purcell said that the bag contained a green leafy substance which he believed to be marihuana. The first bag contained the same substance as well as a piece of folded tinfoil which contained a brown powder. He then arrested appellant for possession of a controlled substance.

Article 14.01, Section b, V.A.C.C.P., provides that an officer may arrest for any offense committed in his presence. At the hearing on appellant’s motion for new trial, appellant introduced a copy of the section of the Freeport Code of Ordinances dealing with traffic. Section 36-166 of that Code states:

“No vehicle shall be driven backward unless such movement can be made with reasonable safety and without interfering with other traffic.”

Purcell testified that appellant had violated the ordinance and that his manner of backing was a threat to the safety of pedestrians walking in and out between parked cars in that area. It is of no consequence that he only intended to give appellant a warning rather than a citation. Officer Purcell had the right to stop the vehicle. See Benny v. State, 473 S.W.2d 503 (Tex.Cr.App.1971); Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973); Article 670ld, Section 153, V.A.C.S.

Since the officer had a right to stop appellant pursuant to the traffic violation the seizure of objects in plain view was proper. Holman v. State, 474 S.W.2d 247 (Tex.Cr.App.1971); Musgrove v. Eyman, 435 F.2d 1235 (9th Cir.1971). The situation here is like that found in Lewis v. State, supra. Here, as in Lewis, there are no fruits of a traffic offense. Here, as in Lewis, there is more than a mere arrest for a traffic offense. In Lewis, the defendant’s companions were observed making movements as if to place something under the seat. After three blocks of pursuit one of Lewis’ companions left the car in an apparent attempt to keep officers from getting near the front seat. One of the officers shined a flashlight into the car and observed a brown sack extending out from under the front seat. The search of the vehicle at the time was limited to an examination of the sack which was found to contain marihuana. Similarly, in the instant case appellant was observed putting something in his pocket as he approached Officer Purcell and when he was in the light the officer saw that it was a plastic baggie. When he attempted to obtain the baggie and question appellant about it, appellant fled. The finding of the contraband incident to the stop for the traffic violation is lawful under the facts of this case. The facts are sufficient to give the officer probable cause to further investigate as plastic baggies are commonly used to carry narcotics.

The judgment should be affirmed.