author: GALBREATH, Judge.

text:
    Charles Ed BROWN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 29, 1977.
    Certiorari Denied by Supreme Court Oct. 24, 1977.
    Hughie Ragan, Jackson, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, James G. Woodall, Howard F. Douglass, Asst. Dist. Attys. Gen., Jackson, for appellee.
   OPINION

GALBREATH, Judge.

This is an appeal by Charles Ed Brown, testing his conviction for selling marijuana. Sentence for this felony was set at 18 to 36 months in the penitentiary.

Six errors are assigned, the most troublesome contending that the offense committed is only a misdemeanor. The first three attack the legal sufficiency of the convicting evidence, and have no merit. The State’s proof (the defendant presented none) showed that Brown drove his automobile to a high school campus during school hours, parked adjacent to the campus, engaged in a conversation with a student named John Samuel James and offered to sell him some marijuana, got the student into the car and drove him about a quarter of a mile from the campus where a small quantity of marijuana was taken from beneath the hood of Brown’s car and sold to James for three dollars. A teacher had observed the occurrence, and the student was confronted upon Brown’s returning him to the campus, the marijuana was confiscated and Brown subsequently arrested. The student testified for the State. The argument that he was an accomplice is without merit, since a purchaser is not an accomplice of the seller, not being chargeable with the same offense. Conner v. State, 531 S.W.2d 119 (Tenn.Cr.App.1975). Further, the testimony of the observing teacher, plus the recovery of the marijuana, constituted all of the corroboration that would have been necessary even if the student had been an accomplice. The convicting evidence is certainly legally sufficient, and reflects an aggravated case of selling a small quantity (apparently .18 grams) of marijuana.

The next assignment of error complains of portions of the prosecuting attorney's jury argument. At one point this was said:

Mr. Woodall: You all know what type of drug problem we have in Madison County and throughout the — (interrupted).
Mr. Ragan: Just a minute, if Your Honor please. I object to that kind of argument. It’s outside the evidence.

The Court: I think he can argue generally his opinion about that if he doesn’t elaborate or go too far in it. Subsequently, in the State’s closing argument, this was said:

Mr. Douglas: Well, Ladies and Gentlemen, I think that you live in this country and — well, there’s been no proof, I’ll admit that, on the drug problem that exists here in Madison County, but I think all of you read the paper and you hear about drugs not only here but all across the country, and — (interrupted).
Mr. Ragan: If Your Honor please, we submit that’s improper argument.
The Court: Well, I think to continue on that line is improper. That has nothing to do with the question of guilt or innocence of this defendant in the case on trial at this time. I think it’s all right to refer to it, but to elaborate on it — the objection is sustained.

We hold that this argument was not reversible error, in view of the trial judge’s ruling.

Counsel for the appellant next attacks the validity of the rule that questions not presented upon the motion for a new trial cannot be raised for the first time on appeal. No such question is presented in this case, so the question is moot.

Finally, we reach the only assignment of error which we deem meritorious. Prior law by exclusionary language would have permitted a felony conviction for the sale of marijuana in this case regardless of the amount involved. T.C.A. § 52— 1432(a)(3), prior to its amendment by Chapter 597 of the Public Acts of 1972, provided:

“Any person who violates section (a)(1)(F) of this section [relating to the sale of marijuana and tetrahydroeannabi-nols] by distributing a small amount of marijuana, not in excess of one-half (½) ounce, for no remuneration, shall be subject upon conviction to the provisions of subsection (b) of this section.” (emphasis supplied)

The 1972 amendment removed the phrase “for no remuneration” thus bringing the sale of less than ½ ounce of marijuana under the misdemeanor provisions of T.C.A. § 52-1432(a)(3)(b).

It follows, that we must reduce the degree of the conviction from a felony to a misdemeanor and remand for re-sentencing by the trial judge.

Affirmed as modified and remanded.

DAUGHTREY, J., concurs.

RUSSELL, P. J., dissented.


source: Caselaw Access Project

author: O’BRIEN, Judge. GALBREATH, Judge,

license: Public Domain

text:
    Emmit EVANS and Marion Smith, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 26, 1977.
    Certiorari Denied by Supreme Court Nov. 7, 1977.

      Jack W. Bowers, Rufus W. Beamer, Jr., Knoxville, for Evans.
    Charles C. Burks, Jr., Knoxville, J. Anthony Brown, Knoxville, for Smith.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, John W. Gill, Jr., Memphis, and William L. Waters, Knoxville, Asst. Dist. Attys. Gen., for appellee.
   O’BRIEN, Judge.

OPINION

This is an appeal from a judgment in the Criminal Court of Knox County finding defendants guilty of murder in the first degree during perpetration of an armed robbery, and fixing their punishment at death by electrocution.

Evans has filed thirty-six assignments of error, Smith thirty-two. Most of the assignments for the separate defendants parallel in form and content. We first consider those filed individually by defendant, Evans, who complains that the trial court erred in denying a motion for severance.

A pre-trial motion for severance was overruled because no valid grounds were shown. The motion was renewed prior to trial, again found to be without merit and overruled.

We find no indication in this record of any prejudice to the defendant by failure to grant severance. Where two or more defendants are charged jointly, with a single crime, it is proper to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the defendant’s rights. See Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Cole v. State, 4 Tenn.Cr.App. 645, 475 S.W.2d 196. The assignment is overruled.

Evans says the trial court erred:
(a) In holding that he knowingly and voluntarily waived his Fifth Amendment rights in making a statement to police while he was a suspect for armed robbery.
(b) Holding that he knowingly and voluntarily waived his Sixth Amendment rights prior to a pre-indictment lineup.

There was never any confession or admission of either defendant presented to the jury. The line-up complained of by defendant occurred prior to his indictment. He was not entitled to counsel at the line-up proceedings. See Maxwell v. State, 501 S.W.2d 577, Tenn.Cr.App.1973; State v. Jefferson, 529 S.W.2d 674, Tenn.1975; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. The assignment is overruled.

Evans charges the trial court erred:

(a) By allowing, over objection, testimony of a witness to statements made by the co-defendant, Smith, tending to inculpate Evans in violation of his Sixth and Fourth Amendment rights.
(b) By not giving any precautionary or limiting instructions to the jury regarding Sixth Amendment rights or the hearsay rule.
(c) By holding that the testimony of the witness referring to the statements of Smith were admissible as substantive evidence against Evans.

Defendant’s principal objection seems to be that there was a Bruton violation (Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) in the admission of certain statements made by co-defendant Smith, through the testimony of the witness, Valerio. All three of the parties, Evans, Smith, and Valerio, were present during some of the conversations related by Valerio. The statements of Smith admitted in evidence were not in the way of a confession inculpating Evans in the crime. To the contrary, Valerio’s testimony was the report of a conversation between the other two and his observation of Evans’ reactions to Smith’s comments, insofar as Evans was involved. We find no Bruton violation here. Defense counsel argues very ably and with great force that defendant has not only been denied his Sixth Amendment right of confrontation but that the testimony was admitted in clear violation of the hearsay evidence rule. This case falls within several of the recognized exceptions to the hearsay rule. The facts of the case bring the testimony of Valerio within the scope of the exception authorizing admission of evidence of a conspiracy. The testimony was corroborative of other evidence that placed Evans at the scene of a violent, wanton, and grossly executed homicide committed in the course of a robbery. It showed his state of mind and intent immediately preceding, and, subsequent to, the actual occurrence of the crime. Everyone entering into a conspiracy is a party to every act which has before been done by the others, and to every act by the others afterwards, in furtherance of the common design, and all acts and declarations of conspirators, or of any of them, may be given in evidence against all, from the time the conspiracy had its origin until its design has been consummated, or until it is abandoned. See Solomon v. State, 168 Tenn. 180, 76 S.W.2d 331, and authorities cited there. Although the issue was not raised it is not improbable that the testimony was admissible under the res gestae exception to the rule. Canady v. State, 3 Tenn.Cr.App. 337, 461 S.W.2d 53. There is no doubt the testimony was admissible under the tacit admission exception to the rule. See O’Brien v. State, 221 Tenn. 346, 426 S.W.2d 507; Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1. The assignment is overruled.

Holding as we do that the testimony was admissible under exceptions other than the tacit admission exception to the hearsay rule, taking the testimony of Valerio in conjunction with other convincing evidence in the record, it affirmatively appearing that the defendant heard and fully understood the remarks made by Smith which were made under circumstances affording him the opportunity to register denial, there having been no request for any precautionary jury instructions, we reject the suggestion that such an instruction was called for. The jury was entitled to consider the testimony, not as evidence of the circumstances detailed in the statements, but for such inference as the admitted evidence might reasonably warrant.

Defendants jointly say that the evidence presented at trial is insufficient to sustain the verdict and preponderates against the guilt and in favor of their innocence. It is their contention that the trial judge should have directed a verdict of acquittal as to the second count of the indictment because the State’s proof failed to establish that the criminal agency of the defendants caused the death of the decedent.

The thrust of their argument is that the State failed to present sufficient evidence to provide a jury question on the cause of death of Mr. Boyd Wright. They say the testimony of Dr. Fredrick Fernando Brown, Jr., whose treatment of the victim began within fifteen or twenty minutes after he had been admitted to the emergency room at the hospital, and of Dr. Stephen Glen Wilson, Jr., who performed an autopsy on the victim’s body, was insufficient to show the actual cause of death. We disagree. Dr. Brown testified that in his opinion the injuries on Wright’s body were the ultimate cause of his death some twenty days after they were inflicted. Dr. Wilson testified that the trauma associated with Wright’s injuries resulted in a decrease in oxygen supply to the brain, triggering what he classified as an acceleration in numbers of “small strokes”. That some of these strokes involved a vital area of the victim’s brain, which regulated body temperature, resulting in a rapid increase in temperature bringing about his death. The testimony of both doctors established the cause of death to be the injuries sustained by the victim. The distinguishing feature between this case and Fine v. State, 193 Tenn. 422, 246 S.W.2d 70, cited on behalf of defendant, is the uncontroverted evidence offered by the State to show that Boyd Wright had been wantonly, maliciously beaten and strangled prior to his hospitalization, and, some twenty-one days later, causing his demise. It is true that a homicide conviction should not be sustained where proof of death rests in the disjunctive, however, our cases hold that one who unlawfully inflicts a dangerous wound upon another is held for the consequences flowing from such injury, whether the sequence be direct or through the operation of intermediate agencies dependent upon and arising out of the original cause. Odeneal v. State, 128 Tenn. 60, 157 S.W. 419; McCord v. State, 198 Tenn. 226, 278 S.W.2d 689.

A number of the assignments relating to the constitutionality of the death penalty, and collateral issues, have been preempted and rendered moot by the decision in Collins v. State, 550 S.W.2d 643 (Tenn.1977), in which our Supreme Court held that the statutes imposing the mandatory death penalty upon conviction of first degree murder are unconstitutional. In the opinion on the Petition to Rehear in Collins, (5/2/77), our Supreme Court concurred in the commutation of the death sentences of Collins and a fellow defendant, Frank Carl Morgan, to life imprisonment by executive action. The sentences of these defendants have also been commuted to life imprisonment by the Governor.

Defendants say they were denied the Sixth Amendment right to trial by jury by virtue of the statutes giving females the option to decline service when summoned to jury duty.

This case had come to trial and counsel was in the process of jury selection when the United States Supreme Court decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, was published, holding that women, as a class, may not be excluded from jury service or given automatic exemptions based solely on sex if the consequence is that criminal juries are almost always male. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790, subsequently held that the Taylor decision was to have prospective application only. Notwithstanding Taylor, supra, defendants have failed to carry the burden imposed upon them to show that women were systematically excluded from either the Grand Jury or the Petit Jury in this case. The record indicates that there were five out of twelve female petit jurors, plus one alternate on the jury venire. The assignment is overruled.

Defendants are not entitled to a reversal because of duplicity in the indictment. The indictment contains three counts, the first charging murder in the first degree in common law form, the second count charging first degree murder in commission of a felony, and the third count charging armed robbery. The face of the indictment clearly shows that these three offenses were committed at the same time on the same individual, and show a logical connection between the several counts. The indictment is not void for duplicity. Hoyt v. State, 107 Tenn. 539, 64 S.W. 473; Halquist v. State, 489 S.W.2d 88 (Tenn.Cr.App.1972).

We find no error in the rulings of the trial court on examination of the State’s counsel in which witnesses testified about conversations with the victim prior to his demise. None of the content of the conversations were admitted into evidence. The defendants protest that a mis-trial should have been granted because a police officer testified that after he had talked to the victim he obtained a warrant. The witness had already testified that both Evans and Smith had been identified from photographs. Defendants cite no authority for this assignment of error. We do not get the implication that the officer sought warrants solely as a result of the conversation. We hold that if error was committed it was harmless in view of the previous identification of defendants.

Defendant’s complaint that they were brought into the courtroom in the presence of the jury with shackles on both arms and legs, and that uniformed armed guards stood behind them throughout the trial must be overruled.

Prior to the jury selection counsel for Evans objected to the fact that two deputies were sitting behind defendants. The trial judge stated it was usual procedure to have guards in the courtroom, sometimes in uniform and sometimes not; the guards were required in this instance because of the nature of the offense, the high bond, and the fact that the court was being conducted in a hotel building without adequate security arrangements. A short time later counsel for Smith objected to the defendants being brought into the courtroom in chains in the presence of prospective jurors. The trial judge stated he had given the guards discretionary authority for security due to the circumstances. He overruled the objection and instructed the officers to avoid bringing the defendants into the courtroom in irons unless they were unruly. The record seems to show that uniformed guards were sitting behind the defendants prior to the jury selection, and did not indicate they stood behind the defendants throughout the trial. There is no indication that any of the prospective jurors who eventually sat on the case saw the defendants in shackles.

Defendants charge error because the trial court failed to instruct prospective jurors not to consider any news items publicized about the trial, and failure to sequester the jurors pretrial. We find no abuse of the trial court’s discretion in this regard and the assignment is overruled.

Defendants complaint is without merit regarding the admission, over objection, of the.testimony of one of the physicians who treated the victim prior to his demise. The doctor testified he had treated the victim for an injury to the little finger of his left hand while he was in the intensive care unit at the hospital. He described the injury and the nature of his treatment. This testimony was relevant to corroborate that a valuable diamond ring was forcibly taken from the victim’s hand. It was also relevant to show the element of malice. As a general rule, the acts and conduct of an accused and other circumstances and facts attending a homicide may be shown on a question of malice, premeditation, or deliberation. The fierceness and atrocity of the attack, the circumstances under which it was made, the nature and extent of the injury inflicted, the condition of the body and wearing apparel, the deadly nature of the weapon used, and the manner of using it, are proper subjects of inquiry. See 40 C.J.S. Homicide § 205, p. 1106.

Error is charged because defense counsel was denied the use of a medical reference book in cross-examination of a physician testifying for the State. The assignment has not been briefed and defendants have not indicated the manner in which they were prejudiced by this alleged error. The trial judge has a wide latitude and large discretion in the control of cross-examination of witnesses, and his exercise of that discretion will not be interfered with except in a case of plain abuse. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460. We find no error and overrule the assignment.

Defendants make a general assignment, charging error on failure to sustain their objections to in-court identification by two of the State’s witnesses on the theory that it was tainted by out-of-court identification procedures; further charging that the trial court erred in considering statements made by the defendant Smith against Evans at an out-of-jury hearing.

The trial court conducted an extensive jury-out hearing on the procedures employed in the pre-trial identification. The witnesses, Hugh and Stephen Newman had arrived on the scene of the homicide while the defendants were still on the premises. In the course of the police investigation they were shown hundreds of photographs in an effort to identify the culprits. Through other sources police obtained information leading them to investigate Smith. It was only then that he was identified from a photograph which was included in a group of approximately twenty others. He was later identified by both witnesses after viewing a more recent photograph under similar conditions. The procedure for photographic identification of Evans was similar. All of the evidence in the record indicates that the pre-trial line-up procedure was conducted in a manner in keeping with all legal and constitutional requirements. After considering this evidence the trial judge found that the identification of the defendants was not tainted by any police action. A finding of fact of this nature is conclusive unless it can be established the evidence preponderates against the lower court’s judgment. The burden is on appellant to make this showing on appellate review. Defendants have failed to carry that burden. Chappie v. State, 528 S.W.2d 62, Tenn.Cr.App.1975. It would be inordinately unfair to either of the defendants for the trial judge not to consider any evidence available at a hearing to determine that their constitutional rights were preserved in the course of identification procedures, including testimony of either or both of the defendants. The assignments are overruled.

We do not find any misconduct on the part of the State’s Attorney in the conduct of this trial. To the contrary, both counsel for the State as well as counsel for the defendants are to be commended for their scrupulous adherence to the law and their diligent efforts in assuring the defendants a fair and just trial. The assignment pertaining to misconduct of State’s counsel is overruled.

Defendants charge the trial judge in an abuse of discretion in reversing himself on the issue of whether or not certain photographs should have been submitted to the jury.

The State offered in evidence a series of colored slides of both the inside and outside of the Wright residence as it appeared during the course of the police investigation. Over defendants’ objection, after a jury-out hearing, the trial judge allowed certain of the slides to be admitted while denying admission of others. During the lunch break State’s counsel was allowed to procure authorities to sustain admission of photographs into evidence which had previously been denied. After further argument, in which neither side was denied the right to be heard, the admission of additional slides in the series was allowed. Sometime later in the trial proceedings a sharp issue developed relevant to the position and location of the unconscious victim when various of the witnesses arrived upon the scene. A request was made to admit an additional photograph to corroborate the testimony of witnesses regarding the physical position of the victim. Admissibility of photographs is a matter within the trial court’s sound discretion. Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128. Photographs accurately showing a homicide environment as it existed at a time near enough to the homicide to warrant an inference that such condition did exist then should not be held inadmissible because of their possible inflammatory character. Bass v. State, 191 Tenn. 259, 231 S.W.2d 707. We find no inconsistency in the ruling of the trial judge on the admissibility of the photographs and overrule the assignment.

There was an objection to closing argument of the State’s counsel which was not sustained. This has been submitted as error. We find nothing in that portion of the argument included in the record to indicate that the State’s counsel made argument outside of the evidence heard by the jury. It is not error to argue anything warranted from the facts and circumstances of the case. Briggs v. State, 3 Tenn.Cr.App. 471, 463 S.W.2d 161. We find no abuse of the trial judge’s discretion in his control of the argument of counsel. The assignment is overruled.

The defendants say the trial judge erred in instructing the jury on the Fifth Amendment right of defendants to not testify.

The trial judge instructed the jury that they were to draw no inference or place any emphasis upon the facts that defendants did not testify, which was their right. He instructed on the presumption of innocence, etc., and the fact of the State’s burden to prove guilt beyond a reasonable doubt irrespective of whether or not they testified. The instruction was proper and there was no error. See Rowan v. State, 212 Tenn. 224, 369 S.W.2d 543.

Defendants find error in denial of several special requests for jury instructions and charge that the instruction on “cause of death” was erroneous.

We have examined the record and are satisfied that the general instructions to the jury adequately covered all of the points raised in the special requests submitted for special jury instructions. Defendants are entitled to no more. The trial court’s instructions on “cause of death” was given in accord with the law in this State on the subject. Odeneal v. State, supra; McCord v. State, supra. We overrule the assignment.

Defendants charge error on the trial court’s refusal to allow introduction of the entire medical record of the deceased, Wright, through the testimony of the medical records librarian from St. Mary’s Hospital where the victim was treated as a patient prior to his death, under provisions of the Uniform Business Records as Evidence Act.

The State was willing to stipulate the records to be those maintained at St. Mary’s Hospital, and agreed to their introduction except for certain opinions and conclusions of the treating physician and the pathologist who had performed an autopsy on the body. Both of these physicians had previously testified in the case. The trial judge approved the State’s objection and allowed the introduction of the records without the objected to portions.

The trial court ruled correctly in the matter. Since the trial of this case our Supreme Court has rendered an opinion in the case of Graham v. State, 547 S.W.2d 531 (Tenn. 1/31/77), analyzing and restating the law on the admissibility of hospital records. In substance, as it applies here, the rule is that the records were admissible except for the opinions and conclusions of the doctors whose qualifications were not shown and where the opposing parties would be deprived of the right of cross-examination. It seems to make little difference in this case since both of the doctors, the admission of whose reports and conclusions brought on State objection, had already testified as State witnesses and had been available for cross-examination. The assignment is overruled.

Defendants charge that the trial court erred in instructing the jury in accordance with T.C.A. Sec. 40-2707.

The assignment must be overruled. In the opinion on Petition to Rehear in Farris v. State, 535 S.W.2d 608 (Tenn.1976), our Supreme Court specifically said:

“In order to clarify further our holding in this case we point out that the fact that a trial judge, prior to the release of our opinion, may have charged the jury on parole considerations does not necessarily mean that the error is reversible or that we will follow the Farris procedure.”

Citing from Rogers v. State, 196 Tenn. 263, 265 S.W.2d 559, the court went on to say, “ . . .. Every case must be governed by its own facts, and a decision made according to the demands of law.” As conceded in the brief for defendants, the appellate courts in this State have been consistent in holding that the indeterminate sentence law (T.C.A. Sec. 40 — 2707), is not applicable to capital offenses. See State v. Henderson, 1 Tenn.Cr.App. 47, 428 S.W.2d 800. After being properly instructed on the lesser included offenses to those charged in the indictment, the jury saw fit to find defendants guilty of murder in the perpetration of armed robbery. The suggestion that had the jury not been instructed in accordance with the pardon and parole statutes they might possibly have returned a verdict on some lesser included offense cannot be sustained. The jury was presented with evidence that defendants were guilty of a coldblooded, premeditated, malicious and heinous assault upon the victim, in the course of a robbery, which ultimately resulted in his death.

We are further constrained to overrule the assignment because the death sentences in this case have been commuted by the Governor to life imprisonment in the penitentiary. In Collins v. State, supra, our Supreme Court, in holding that this commutation by the Governor was constitutionally permissible and lawfully imposed, had this to say:

“In a criminal case it is the right of the jury to determine the law and the facts. In these cases each jury was instructed as to first degree murder, second degree murder, and all lesser included offenses. The two juries had the opportunity and the authority to impose a lesser sentence but declined to do so. Since the defendants received the maximum penalty of death at the hands of juries, there is nothing in our statutory or constitutional law or the decisions of this Court requiring that they be given a second jury trial as to punishment under the circumstances presented here.”

Error is assessed for failure to grant a hearing and set aside judgment in this case on the basis of newly discovered evidence.

Subsequent to the trial, and while the matter still reposed in the bosom of the trial court, a motion to set aside the judgment was filed alleging that new evidence had been discovered and requesting an evi-dentiary hearing into the matter. The motion was accompanied by an affidavit to the effect that the witness William T. Valerio had been “scared” and under much pressure from the police; had been separated from his mother for three nights and two days; had been provided with a statement by Knoxville police officer which was to be his testimony, and admonished to memorize the statement and to take the copy with him. The officer purportedly threatened the witness by saying that his fingerprints were on the coca cola bottle which had been used to beat the victim. The affidavit is seemingly signed by Emma J. Williams, Willim T. Valerio, III, and Laura E. Hicks. The motion was also accompanied by an affidavit of counsel to the effect that they had exercised ordinary diligence in obtaining the information, and bringing it to the attention of the court.

The affidavit accompanying the motion does not meet the requirements to establish newly discovered evidence as a basis for a new trial. As we said in Jones v. State, 2 Tenn.Cr.App. 160, 452 S.W.2d 365, citing from Ross v. State, 130 Tenn. 387, 170 S.W. 1026:

“ . . ..An accused seeking a new trial on the ground of newly discovered evidence must file an affidavit setting forth the facts showing that he and his counsel exercised reasonable diligence and were not negligent in the search for evidence in preparation for the trial of the case, that he and his counsel had no pre-trial knowledge of the allegedly newly discovered evidence, and it must be supported by the affidavit of the new witness showing materiality of the testimony and that it had not been communicated to the accused prior to trial.”

Ross v. State, supra, contains a very comprehensive analysis of the requirements for an application for new trial on newly discovered evidence, as well as pertinent comments on why such an application should be looked upon with great discernment. It is said there that applications of this kind are not looked on with favor, but on the contrary, rather with distrust. The chief reason is the great temptation to perjury and the subornation of perjury, .

In Rosenthal v. State, 200 Tenn. 178, 292 S.W.2d 1, the court reasoned as follows:

“This Court held in Gentry v. State, 184 Tenn. 299, 198 S.W.2d 643, 648, that a new trial was properly refused where the newly discovered evidence purported to show that a material witness of the State had committed perjury in his testimony at the trial, quoting from 39 Am.Jur., New Trial, Section 167, p. 173: ‘ “It is well settled that a new trial will not be granted upon the ground of newly discovered evidence where it appears that such new evidence can have no other effect than to discredit the testimony of a witness at the original trial, contradict a witness’s statements, or impeach a witness, unless the testimony of the witness who is sought to be impeached was so important to the issue, and the evidence impeaching the witness so strong and convincing, that a different result must necessarily follow. * * *” ’
The State cites to the same effect, 16 C.J., p. 1205, Section 2730, in part as follows: ‘The trial court has the right to determine the credibility of newly discovered evidence for which a new trial is asked and if the Court is satisfied that, on a new trial such testimony would not be worthy of belief by the jury, the motion should be denied. The newly discovered evidence will not be accepted as ground for a new trial unless the Court can see that its admission on a new trial will probably produce a result more favorable to defendant than the verdict on the original trial. The question is not what they jury might do, but, supposing all the evidence new and old to be before another jury, whether they ought to return a verdict more favorable to defendant than the one returned on the original trial.’ See also 23 C.J.S. Criminal Law § 1461.”

While the affidavit signed by William T. Valerio, the witness, his aunt, Emma J. Williams, sister of the defendant, Evans, and Laura E. Hicks, mother of Valerio, and also sister of Evans, says that he was threatened by a police officer, it does not say that his trial testimony was false. It does indicate that the information contained therein was known, not only to the witness, but to the other affiants, prior to the conclusion of the trial, yet the affidavit was not made until nearly a month after argument on the motion for new trial. It seems inconceivable that purportedly newly discovered evidence of such a serious nature, known to two adult affiants, sisters of the defendant, would not have been made known to him at some previous time. The trial judge reviewed the affidavit attached to the motion, heard argument of counsel and testimony of one of the lawyers representing the defendants. In overruling and denying the motion he stated his reasons to be, among other things, that there were disinterested eyewitnesses who placed the defendants at the scene of the crime and substantial evidence within the record tending to show their guilt prior to the time the witness William T. Valerio took the stand. The Court observed the witness, Valerio, and the manner in which he was examined by counsel. He was impressed with the fact that his testimony had the ring of truth about it. Having read this record with extreme care we conclude that there was no abuse of discretion on the part' of the trial judge in denying the motion to set aside the judgment. The assignment is overruled.

Defendants have made a complaint about the procurement of the witness, Val-erio, through the Uniform to Secure Attendance of Witnesses Act.

Valerio was a resident of Florida. It appears that prior to the trial his name was added to the indictment as a witness for the State. Defense counsel was properly notified of this action. Shortly thereafter the State filed a written motion to compel the attendance of this witness. The motion was granted ex parte, in accordance with the statutes, (T.C.A. Sec. 40-2435, et seq.). It is defendant’s contention that a local rule of the Knox County Criminal Court requires all motions to be filed in duplicate and directs the clerk to deliver the duplicate copy to opposing counsel. That failure to comply with this procedure in this case was a violation of due process.

The grounds stated on this assignment were not presented for determination in the lower court on the motion for new trial, and so are not subject to appellate review. Wilkerson v. State, 208 Tenn. 666, 348 S.W.2d 314; Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780. The rule of the Knox County Criminal Court referred to was not proved in the trial below, nor was it incorporated into the Bill of Exceptions. This Court cannot judicially know the rules established by the Circuit Court, and for the reason stated the Court rule is not properly before us. See Talley v. Talley, 51 Tenn. App. 622, 371 S.W.2d 152. In any event there was no denial of due process. The witness was granted no immunity except from arrest or service of process which is a guarantee, not so much for the benefit of the witness, as for the parties involved in legal proceedings to assure them the inalienable right to require the attendance of witnesses on their behalf free of the prospect of legal oppression by any government agency.

This has been a very interesting case. The record contains more than a thousand pages. The briefs of counsel are voluminous, though prepared in great detail and with expertise. We commend counsel for their fine work on behalf of these indigent defendants. Having perused the record with minute care we do not find error in the trial proceedings, and conclude that the defendants have had a fair and just trial. The judgment of the trial court is affirmed, as commuted.

GALBREATH, and RUSSELL, JJ., concur.

GALBREATH, Judge,

concurring.

I concur in the result reached in Judge O'Brien’s exhaustive opinion, although I agree with appellant, Emmit Evans, that he was denied the right to confront his co-defendant Marion Smith, concerning statements by Smith implicating Evans, as recounted by the witness Valerio. That these statements were made as part of an alleged conversation between the two defendants should not, it seems to me, take them out of the Bruton rule. Whatever Evans said, of course, would be admissible. What Smith said should not, as I see it.

However, I would hold the error harmless in view of the other independent and competent evidence of Evans’ participation in the murder. I am convinced beyond a reasonable doubt that the complained of testimony did not effect the verdict. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1964); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).


author: POPE, Justice.

text:
    Robert E. RANKIN, Petitioner, v. J. M. NAFTALIS et al., Respondents.
    No. B-6447.
    Supreme Court of Texas.
    Oct. 5, 1977.
    Rehearing Denied Nov. 16, 1977.

      Jennings, Montgomery, Dies & Turner, Frank L. Jennings, Graham, for petitioner.
    Fillmore & Camp, John P. Camp, Fort Worth, for respondents.
   POPE, Justice.

Dr. J. M. Naftalis, Dr. R. D. Martin, Gene S. Friedman, and E. F. Lisle filed suit against Robert E. Rankin seeking to impress a constructive trust upon an oil and gas lease that he took in his name. The defendant, Rankin, pleaded in defense, that plaintiffs’ claim was barred by the Statute of Frauds, the Statute of Conveyances, and the Texas Trust Act. Rankin also defended on the grounds that plaintiffs were es-topped to assert their claim in equity. After a jury trial, the court rendered judgment that the plaintiffs take nothing, but the court of civil appeals with one justice dissenting, reversed the judgment. 542 S.W.2d 893. We reverse the judgment of the court of civil appeals and affirm the trial court’s judgment that plaintiffs take nothing.

The defendant, Rankin, in March, 1973, acquired what is called the Melton oil and gas lease to a quarter section of land in Knox County. He needed funds to develop the lease, so he contacted and explained to each of the plaintiffs the prospects for a well on the lease. Naftalis and the other plaintiffs had their own attorney prepare contracts so each of the plaintiffs could separately contract with the defendant, Rankin. Each contract obligated Rankin to assign to each of the plaintiffs a fractional interest in the Melton lease and required each assignee to pay a stated sum into an escrow account at a bank in Dallas. The funds were to be paid and were paid to Rankin when he drilled the well on the Melton lease to a depth of one thousand nine hundred fifty feet. The assignments in the working interest of the Melton lease were: one-sixth to Dr. Naftalis, one-sixth to Dr. Martin, one-sixth to Gene Friedman, and one-fourth to Lisle. Rankin retained the remaining one-fourth interest.

Each contract designated Rankin as the drilling contractor and gave Rankin control of the drilling, development, operations, marketing, accounting, and the execution of division orders. The contracts provided that upon completion of a commercial well, the assignees would pay Rankin an additional pro rata part of eight thousand dollars to complete the well, and Rankin agreed to pay any additional costs. The contracts described the Melton lease and dealt with that lease only.

In May, 1974, the first well on the Melton lease was completed as a producer, though not a good one. After the first well was drilled, Rankin told one or more of the plaintiffs that he would obtain the Orsak lease for all of the same parties. A second well was also drilled on the Melton lease in May. The parties shared their proportionate costs for operating and equipping that well, but disputes arose concerning the expenses and the use of the first Melton well as early as July, 1974. Up to the early part of 1975, the parties held meetings and paid the bills arising out of the operation of the Melton lease from a bank account, called the “Melton Lease Account.” Each party had authority to write checks to pay the expenses. The income from the well was paid directly to each of the parties according to their ownership in the lease. The plaintiffs testified that Rankin told them, even after he had obtained the Orsak lease in his own name, that he had not been able to obtain it.

On August 21, 1974, defendant Rankin purchased the William Orsak lease with his own funds, and he filed the lease for record on October 4, 1974. The claim to the constructive trust is that Rankin, before the Melton lease agreements were executed, and while the Melton wells were being drilled, told one or more of the plaintiffs that he was trying to acquire the Orsak lease and that he would take the lease in the names of all the participants in the Melton lease. There was no discussion about the amount that the plaintiffs would contribute to the drilling or completion of a well on the Orsak lease. That lease would have to be drilled to a different horizon and into a different sand from the Melton lease.

On April 24, 1975, defendant Rankin began drilling operations on the Orsak lease. Naftalis and the other plaintiffs learned about the activity and consulted an attorney two days later. They did not at that time, however, assert any claim in the Or-sak lease. On May 20, 1975, Naftalis and the other plaintiffs filed a suit for the partition of the Melton lease, but they still made no claim to the Orsak lease. In their suit concerning the Melton lease, they also asked for damages, so the trial court on June 27,1975, severed the partition and the damage actions into separate causes. The District Court of Knox County appointed a receiver with orders to sell the Melton lease at a public sale, and on July 1,1975, Naftal-is and the other assignees bought the Melton lease at the public sale. The damage or accounting suit was pending at the time the present action was tried.

During the early part of May, 1975, Rankin successfully completed the Orsak well as a producer. It was after the well was completed and after Naftalis and the plaintiffs learned from investigating the records of the Railroad Commission that it was a producing well, that they filed this action on July 14, 1975, and for the first time asserted a constructive trust in three-fourths of the Orsak lease and well.

Naftalis and the other plaintiffs rely upon the jury answers to three special issues as a basis for judgment; defendants rely upon a number of other issues to support the judgment that plaintiffs take nothing. The findings which plaintiffs believe support a judgment for their claim to a constructive trust are that (1) during August, 1974, the plaintiffs and defendant were jointly engaged in the business of operating the Melton lease, sharing income and expenses according to their ownership interests; (3) between the time drilling commenced on the Melton lease and August 21, 1974, Robert Rankin represented to . the plaintiffs that he would obtain the Orsak lease for himself and the plaintiffs; and (7) the defendant Rankin failed to inform Tooker Lisle (a plaintiff) before August 21, 1974, of his intention to acquire the Orsak lease.

Defendant Rankin relies upon the jury’s refusal to find that (4) the relationship of the parties on August 21, 1974, justified plaintiffs in believing that defendant Rankin would act in the mutual interest of the plaintiffs and the defendant; (5) defendant Rankin in acquiring the Orsak lease for himself amounted to an abuse of the relationship; (6) defendant’s failure to inform the plaintiffs before August 21, 1974, of his intention to acquire the Orsak lease for himself amounted to an abuse of the relationship inquired about in (4) above. Defendant Rankin also relies upon the jury’s findings on the estoppel issues that (13) plaintiffs knew that defendant Rankin had obtained the Orsak lease for himself prior to his commencement of drilling operations on that lease; (14) the plaintiffs remained silent until after Rankin had completed a producing well on the lease; (15) Rankin relied upon plaintiffs’ silence in conducting the drilling operations; and (16) but for Rankin’s reliance upon plaintiffs’ silence, he would not have conducted the drilling operations.

We need to narrow the issues in this case. This is not a case in which the plaintiffs have charged the defendant with actual fraud. Meadows v. Bierschwale, 516 S.W.2d 125, 129 (Tex.1974). The case is not one in which the alleged trust concerned or the trustee reacquired the original property that was covered by a confidential arrangement as was the case in Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960); Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948); MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944), and Meinhard v. Salmon, 249 N.Y. 458,164 N.E. 545, 62 A.L.R. 1 (1928). It is not a case in which the original contract embraced the general business for the continued acquisition of mineral lands as was the case of Huffington v. Upchurch, 532 S.W.2d 576 (Tex.1976). The jury found that Rankin did not acquire the Orsak lease upon the basis of information he received in drilling the Melton lease. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). The parties reduced their contract to writing and limited the venture to the described Melton lease. The plaintiffs still rely upon the contracts by their independent suit, and they must show in this case that the written contracts actually extended to and reached properties that the contracts excluded.

The Texas Legislature on successive occasions from the early days of the Republic has expressed its intent that contracts concerning lands must not, as Lord Coke expressed it, “be left to slippery memory” but must be reduced to writing. The purposes served by and the reasons for the Statute of Frauds, Tex.Rev.Civ.Stat.Ann. art. 3995, and the Texas Trust Act, Tex. Rev.Civ.Stat.Ann. art. 7425b-7, are reiterated in Consolidated Gas & Equipment Co. v. Thompson, 405 S.W.2d 333 (Tex.1966), and earlier by Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 562 (1948). In 1840, the Texas Congress adopted the Statute of Frauds, and the Statute of Conveyances. Before 1943, the law allowed some margin in the enforcement of express oral trusts; but in 1943 the Texas Trust Act terminated that liberality by the enactment of article 7425b-7. In 1945, the legislature redefined a trust in such a way as to exclude resulting or constructive trusts from the prohibitions of the Trust Act. Tex.Rev.Civ.Stat.Ann. art. 7425b-2.

A constructive trust escapes the unquestioned general rule that land titles must not rest in parol, but to do so, there must be strict proof of a prior confidential relationship and unfair conduct or unjust enrichment on the part of the wrongdoer. Tyra v. Woodson, 495 S.W.2d 211 (Tex. 1973); Consolidated Gas & Equipment Co. v. Thompson, 405 S.W.2d 333 (Tex.1966). “It must be used with caution, especially where as here proof of the wrongful act rests in parol, in order that it may not defeat the purposes of the statute of wills, the statute of descent and distribution, or the statute of frauds.” Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 562 (1948). Subjective trust, cordiality and the trust which prevails between businessmen which is the foundation of ordinary contract law, affords no basis for the imposition of an oral trust that thwarts the Statute of Frauds. Thigpen v. Locke, 363 S.W.2d 247 (Tex. 1963).

The scope of a prior confidential relationship is broader when the defendant is a fiduciary such as an executor, administrator, guardian, attorney or partner. Thigpen v. Locke, supra; Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786 (1938); Bogert, Trusts & Trustees § 481 (2d ed. 1960). While we recognize that the relationship between the parties in the Melton lease was fiduciary in character, the fiduciary duties extended only to dealings within the scope of the underlying relationship of the parties: joint venturers for the development of a particular oil and gas lease. Their fiduciary duties arose from the relationship of joint ownership of the mineral rights of a particular mineral lease. Their joint enterprise extended to paying the production costs of the wells on the Melton lease and sharing the benefits derived proportionately. Had the alleged impropriety been within the scope of these activities, as by one party’s appropriating the operating expense account to purchase land in his own name, a breach of the fiduciary relationship would have occurred and the resulting or constructive trust remedy would be imposed. Such was not the case here.

In a prior case in which it was argued, as it is here, that the scope of a joint venture to produce gas from particular leases extended beyond the particular land of the leases, the court has said:

The parties did not undertake to engage generally in the production and sale of gas from the Lopena field. The extent of their enterprise or joint venture was carefully defined by the contract. It contemplated and provided for the development of certain specified and carefully described areas held under certain named and well identified leases. . . . The subject matter of the enterprise, the property employed in the joint adventure, was those leases, the land described in them, and the gas under the land. Warner v. Winn, 145 Tex. 302, 197 S.W.2d 338, 342 (1946).

It is true that in Warner the contracts expressly provided that they were the full and complete agreement of the parties. We do not regard that distinction as significant. What is significant is the underlying relationship of the parties as limited joint venturers. The scope of the fiduciary duties raised by such a relationship does not extend past the development of the particular lease and activities incident to that development. “The mere existence of a . . . joint venture of concurrent ownership does not, however, require one party to share the benefits of his own enterprise with another. It must also appear that the interest acquired was within the scope of the fiduciary duty.” Williams & Meyers, Oil and Gas Law § 442.1 (1975). As the Supreme Court of Kansas has said in an analogous situation, “The fiduciary relationship created by a joint drilling venture does not forbid further acquisition and development of leases in the general area by individual venturers so long as these leases are not embraced within the scope of the enterprise or are not a natural outgrowth therefrom." Foley v. Phillips, 211 Kan. 735, 740, 508 P.2d 975, 979 (1973). To hold otherwise would restrict the financing scheme of future oil and gas leases to the same terms as on an existing lease because one of the drilling venturers in the first lease also participated in the drilling venture of the second lease. Such a holding would discourage the financing of new oil and gas leases. To extend the writings of the parties beyond the land specified in the writing would frustrate the policies of the Statute of Frauds and the Texas Trust Act.

The same policy of respect for the limited scope of the enterprise precludes the plaintiffs from recovering on the ground that theirs was a broader partnership arrangement. Plaintiffs assert a partnership but they have proved no more than the kind of arrangement which the legislature had in mind by its enactment of Tex. Rev.Civ.Stat.Ann. art. 6132b, § 7:

Sec. 7. In determining whether a partnership exists, these rules shall apply:
* * * * * *
(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.
(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
⅜ * * » * *
(5) Operation of a mineral property under a joint operating agreement does not of itself establish a partnership.

Subdivision 5 of section 7, supra, embodies what this court had already expressed in Warner v. Winn, supra, and MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334, 337 (1944). Evidence of a joint operating arrangement to develop a particular lease will not support a finding of a broader relationship. It is common practice to conduct mineral development under a joint operating agreement, and while there are duties between the parties for the operations of the lands embraced by the written agreement, those duties do not extend to operations by one of the parties on other and different lands. The Orsak lease is outside of the operating agreement. For that reason, the conduct complained of was outside the scope of the fiduciary duties that were established.

The claim to a constructive trust in this case is similar to that asserted in Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). Unlike the present case, in Bolin there was a written partnership agreement between the parties, with Bolin named the managing partner. The partnership took leases on certain properties, including several that were known as the Howard leases. When Bolin took new leases of the partnership’s Howard leases, this court ruled that there was a fiduciary duty which Bolin owed his partners. This court held further, however, that Bolin owed his partners no fiduciary duty to include them in “farmout” agreements he made with Standard Oil and Reno Oil as to two other leases, because they were not embraced in the written contract. The court of civil appeals had held with respect to those leases which were outside the original contractual agreement: “The fiduciary duties they owed one another would be no broader than the activities encompassed by their agreements relating thereto.” Smith v. Bolin, 261 S.W.2d 352, 370 (Tex.Civ.App.1953). This court reversed the judgment which denied a constructive trust as to the mineral properties which were a part of the written contract; it affirmed the denial of a constructive trust as to the properties which were not described in the contract between the parties.

The judgment of the court of civil appeals is reversed, and the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Respondents complain of a sentence in the court’s opinion which states that the Orsak lease had to be drilled into a different sand from that of the Melton lease. There was contradictory testimony concerning that fact. In any event, the jury refused to find that the Orsak lease was acquired solely by reason of information obtained from drilling the Melton wells.

The motion for rehearing is overruled.

      . Article 3995. Writing required
      No action shall be brought in any court in any of the following cases, unless the prom-’ ise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized:
      * * * * * *
      4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year; or,

      . Article 1288. Instrument of conveyance
      No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.

      . See Fritz, The Texas Law of Conveyancing, 3 Vernon’s Texas Civil Statutes 3, 8 (1962).

      . Provided, however, that a trust in relation to or consisting of real property shall be invalid, unless created, established, or declared:
      1. By a written instrument subscribed by the trustor or by his agent thereunto duly authorized by writing;
      2. By any other instrument under which the trustee claims the estate affected. Tex. Rev.Civ.Stat.Ann. art. 7425b-7.

      . Close friendly or familial relationships have occasionally formed the evidentiary basis for jury findings that in fact a special confidential relationship existed which was abused. See Holland v. Lesesne, 350 S.W.2d 859 (Tex.Civ. App. — San Antonio 1961, writ refd n.r.e.). The abuse of this special type of confidential relationship is akin to fraud and undue influence, and we do not find the issue raised by either the plaintiffs’ pleading or evidence. At any rate, recovery on such ground is precluded by the jury’s specific refusal to find that an abuse of the relationship occurred.

      . Professor Bromberg makes this comment about subsection (5) of section 7, article 6132b:
      Paragraph (5) has been added to make it clear that a joint operating agreement does not alone create a partnership. Parties to such an agreement are normally co-owners of property designating a single agent to act for them. Ordinarily they do not intend and should not be compelled to bear each other’s liabilities. Similar results have been reached on other theories in some “mining partnership” cases, but the specific mention of joint operating agreements is more precise and understandable. The provision does not, of course, prevent partners from operating oil properties or joint operators from becoming partners if they so desire. Bromberg, Source and Comments on Section Seven, 17 Vernon’s Texas Civil Statutes 311 (1970).


author: GREENHILL, Chief Justice.

text:
    RAILROAD COMMISSION of Texas et al., Appellants, v. GRAFORD OIL CORPORATION et al., Appellees.
    No. B-6537.
    Supreme Court of Texas.
    Nov. 9, 1977.
    Rehearing Denied Dec. 7, 1977.

      John L. Hill, Atty. Gen., Linward P. Shivers, Asst. Atty. Gen., Austin, Clark, Thomas, Winters & Shapiro, Barr McClellan, John Coates and Barry Bishop, Austin, for appellants.
    Graves, Dougherty, Hearon, Moody & Garwood, Dan Moody, Jr., and Robert C. Grable, Austin, Hart & Hart, James P. Hart, Austin, for appellees.
   GREENHILL, Chief Justice.

This is a direct appeal by Mitchell Energy Corporation and the Railroad Commission from a trial court judgment declaring an order of the Railroad Commission to be invalid and permanently enjoining the Commission from putting the order into effect.

The Railroad Commission’s order consolidated nine gas fields into one field, and it promulgated spacing and production [proration] rules applicable to the consolidated field. The effect of the order was to treat the consolidated area as if it were a single, continuous reservoir. The order was opposed by Graford Oil Corporation and certain owners of unleased land.

After entertaining their actions and hearing the claims'of the parties, the district court declared this order invalid on the three grounds: (1) the order did not contain a fact finding as required by statute, that the hydrocarbons it affected constitute a common reservoir; (2) there was not substantial evidence to support such a finding had it been made; and (3) the owners of unleased land in the affected area were denied due process because they were not given an opportunity to introduce evidence or to participate in a hearing before the Commission. We affirm the judgment of the trial court on all three grounds.

I.

Mitchell Energy Corporation [Mitchell] initiated this action in December of 1975, when it applied to the Commission for the consolidation of seven gas fields in Palo Pinto County. Later, two gas fields in Jack County were included in the application, bringing the total area of the lands in question to approximately 45,000 acres. The field rules for three of the fields proposed to be consolidated provided for 320-acre proration units, and production allocation was based on one hundred percent of acreage. The spacing rules applicable to the other six fields allowed wells to be drilled on twenty-acre tracts, but limited production of these wells to twenty-five percent of the potential capacity of the well without regard to acreage.

Notice of Mitchell’s application was sent to the operators of record on the affected land, but notice was not given to persons who owned unleased land in the affected area. Approximately seventy-five such owners later intervened in the case, and they are referred to here as the McClure group.

On July 12, 1976, the Commission followed the examiners’ recommendation and ordered the consolidation of the nine gas fields. The McClure group then filed their petition in intervention; and with Graford Oil Corporation [Graford Oil], they appealed to the district court. That court set aside the consolidation order and remanded the cause to the Commission for “further proceedings” because the Commission’s order contained no findings of fact or conclusions of law as required by the Administrative Procedure and Texas Register Act Section 16(b).

On remand, Graford Oil and the McClure group filed motions before the Commission to reopen the hearing and to allow the admission of additional evidence. Instead of granting these motions and conducting further proceedings, the Commission overruled the motions and issued a new order of consolidation which incorporated by reference the hearing examiners’ findings of fact and conclusions of law. In all other material respects, the new order was identical to the previous order of consolidation.

Graford Oil and the McClure group then made a second appeal to the district court. This time the district court held the Commission order invalid on grounds that there was no finding that all of the hydrocarbon accumulations encompassed by the order constituted a “common reservoir;” that there was not substantial evidence to support such a finding had it been made; and that the Commission failed to accord the McClure group due process. The trial court ruled against the Commission, and the Commission and Mitchell then brought this direct appeal to us. They contest the trial court’s conclusions on the meaning of “common reservoir” within Article 6008, Section 2; the significance of the hearing examiner’s findings of fact; and the sufficiency of the due process given to the owners of unleased lands by the Railroad Commission.

The parties agree on the controlling questions, and they agree that the basis of the Railroad Commission’s authority to regulate the production in natural gas fields is set out in Article 6008, Section 10. That statute authorizes the Commission to prorate and to regulate, the daily gas production from “each common reservoir” in order to prevent waste or to adjust correlative rights. It does not, however, authorize the Commission simply to combine several common reservoirs into a single field for proration purposes for administrative convenience. See Railroad Commission v. Shell Oil Co., 380 S.W.2d 556, 559 (Tex. 1964); Benz-Stoddard v. Aluminum Co. of America, 368 S.W.2d 94 (Tex.1963).

Since the Commission must prorate as a separate field each common reservoir, the question here turns upon the construction given to the critical term “common reservoir.” Article 6008, Section 2 defines a common reservoir as meaning:

. any oil and/or gas field or part thereof which comprises and includes any area which is underlaid, or which from geological or other scientific data or experiments or from drilling operations or other evidence appears to be underlaid by a common pool or accumulation of oil/or gas . .

The statute can be read two ways.

The Commission and Mitchell Energy read this definition to mean that an area is a common reservoir if it “appears to be underlaid by a common pool or [by an] accumulation of oil and/or gas.” Graford Oil and the McClure group, on the other hand, read the statute as requiring that the area “be underlaid by a common pool or [by a common] accumulation of oil and/or gas.” We agree with the latter reading of the statute in which “common” modifies both “pool” and “accumulation;” i. e., when it appears that the area “appears to be underlain by a common pool or [a common] accumulation of oil and/or gas.”

Since we hold that a common reservoir consists of a common pool or a common accumulation of hydrocarbons, separate and distinct pools of oil or gas, which are not connected, and which do not communicate with one another, do not constitute a “common reservoir.” Each separate pool or accumulation is, under the statute, a separate reservoir, even though several different reservoirs may underlie a single gas-producing area and an entire gas-producing area may often be loosely referred to as a “field.” See Railroad Commission v. Rio Grande Valley Gas Co., 405 S.W.2d 304, 310 (Tex. 1966). Consequently, the consolidation or,der in this cannot stand unless the consolidated area is found to be a common pool or common accumulation of hydrocarbons.

We now turn to the facts.

II. FINDINGS OF FACT

Section 16(b) of the Administrative Procedure Act, which all parties agree applies to this case, requires that final decisions of administrative bodies include findings of fact and conclusions of law, separately stated. The findings should be such that a court, on reading them, could fairly and reasonably say that they support the ultimate findings of fact required for its decision. Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1963). Thus, when the trial court concluded that the record contained no fact finding that the consolidated area is a common reservoir, it properly held that the Commission’s order was invalid since it did not comply with the A.P.A.

The findings of fact the Commission did make regarding the area in question are as follows:

1. That the Atoka Age Conglomerate Formation is generally distributed throughout the area which was the subject of this hearing.
2. That the formation consists of interspersed sections of conglomerate and shale which form generally correlata-ble but not continuous reservoirs some of which are productive of gas.
3. That the porosity and permeability of the conglomerate formation is such that one well would adequately drain a 320 acre gas reservoir in this formation.
4. The discontinuity of the lenses within the overall reservoir is such that not every well on a 320 acre unit would drain all of the lenses underlying all portions of such unit.
5. That the drilling of a second well on a 320 acre unit might permit the development of lenses not developed by a single well on such unit.
6. That a spacing pattern requiring minimum distances of 660 feet from property lines and 1320 feet between wells subject to exceptions after notice and hearing would be a reasonable spacing pattern for the development of the reservoir.
7. That because of the apparent correlation and apparent merging of the various lenses within the Atoka Conglomerate Section, the entire section can be reasonably developed as a single reservoir.

The Commission and Mitchell argue that fact findings numbers 1, 3, and 7 support the conclusion that the Atoka formation is a common reservoir. We do not agree. The first finding merely states that the geological formation, productive or not, extends throughout the affected area; and the seventh finding merely states the Commission’s conclusion that the entire formation can be developed as if it were a common reservoir. Finding number 3 merely recognizes that a 320-acre reservoir in the formation would be drained by a single well.

The other findings show, however, that the Atoka formation is in fact composed of several different reservoirs. Finding number 2 recognizes the existence of non-continuous reservoirs throughout the formation. Finding number 4 affirmatively states that the “lenses” within the formation are non-continuous, and finding number 5 recognizes that a single 320-acre tract might be underlain by more than one reservoir. The only reasonable conclusion that we can draw from our reading of the Commission’s fact findings and the exhibits in the record is that the Atoka formation consists of several separate “common reservoirs,” as that term is defined in Article 6008 Section 2(c). The order consolidating those several reservoirs into one field for proration purposes was, consequently, in violation of Article 6008 Section 10, and was invalid.

The trial court’s second holding is that there was not substantial evidence adduced at the Railroad Commission’s hearing to support a finding of one common reservoir. The trial court concluded that even if the Commission found the Atoka formation to be a common reservoir, the record did not contain substantial evidence to support such a finding. We agree.

Our decision to uphold the trial court’s conclusion does not necessarily mean we agree completely with its view of the case. Rather, this court’s duty in reviewing decisions on the state of the evidence is not to substitute our judgment for any particular tribunal but to insure that the initial decision was based on “substantial evidence” and that this decision has been given the appropriate review. Article 6252-13a, §§ 19(e)(3)-(5). Therefore, under the new Administrative Procedure Act, we must test the substantiality of the evidence from the record upon which the Commission made its decision. Imperial American Resources Fund Inc. v. Railroad Commission, 557 5.W.2d 280, 284-285 (Tex.1977); cf. Hamilton and Jewett, “The Administrative Procedure and Texas Register Act: Contested Cases and Judicial Review,” 54 Tex.L.Rev. 285, 303-07 (1976).

In studying the Commission record, we accept the hearing examiners’ report as correctly summarizing the evidence. That report is as follows:

APPLICANT’S [MITCHELL ENERGY] EVIDENCE
The applicant submitted seven geological exhibits and ten engineering exhibits tending to support the application Exhibit No. 1 was an area plat indicating the general area covered by the application and including the traces of five cross-sections and a log section indicating the gross interval to be considered and some of the separate producing sections within that interval.
The applicant showed a substantial number of wells in that area either known to be simultaneously completed in more than one of the productive zones or suspected of being completed in more than one zone.
Test data was submitted to indicate that a well would drain a distance of at least 2,500 feet from the wellbore. This information being based on the initial tests of a well drilled 2,500 feet from the nearest well completed in the same reservoir and finding that reservoir to be partially depleted.
HENDERSON AND ERICKSON EVIDENCE
Henderson and Erickson submitted two exhibits and the testimony of consulting engineer illustrating the lenticularity of the conglomerate reservoirs within the interval proposed for consolidation and indicating that the productive lenses are randomly oriented so that wide spacing would not give an offset operator a reasonable opportunity to complete in the same lens as his adjoining operator.
The witness did not indicate that one well would fail to drain 320 acres if it was in a lens with a 320 acre extent. The witness testified that there were substantial differences in pressures in the various lenses so that the simultaneous development of the lenses might result in inter-lens migration of gas and that a prudent operator would develop the lenses individually because of the pressure differential.
THE GRAHAM GROUP EVIDENCE
The Graham Group, consisting of six operators, E.C. Johnston, Pitcock, Inc., Morris Stephens, E. Bruce Street, Trumter Petroleum Corporation, Twin Montana, Inc. and Wes-Mor Drilling, Inc., presented three witnesses and eight (8) exhibits. The evidence tended to show that the lithology of this section is a series of discontinued lenses which although apparently correlative across a substantial area are in fact completely separate and the few, if any, are as large as 350 acres in area.
The geological witness for the group estimated that there were at least 16 separate reservoirs within the area of his cross-section and that they could be developed only by closely spaced wells.
The witness testified that the wells were drilled on acreage ranging from 80 to 320 acres and stated that in his opinion a 160 acre basic unit with an 80 acre option would be a preferable development pattern for the area.

Mitchell’s exhibit number four and the testimony of its expert before the Commission clearly show that the Atoka Conglomerate is composed of five producing zones and a “stray” interval. Other evidence indicates that the only communication among the vertically-separated producing zones is through well completions in two or more of the zones; i. e., the zones are joined by the wells completed in two or more sands. It is our opinion that separate reservoirs cannot be transformed into one common reservoir as defined by the statute, by the completion of wells in them. The statute is drawn in terms of natural communication between the producing sands.

All of the producing areas in question are both vertically and horizontally separated. No natural communication occurs. Indeed, the evidence shows clearly that the Atoka formation is made up of several distinct reservoirs which are not connected with one another. We therefore conclude that the record lacks substantial evidence that these accumulations constitute a common reservoir. Since there is not substantial evidence to support a finding that the Atoka Conglomerate is a single gas-producing formation continuous throughout the consolidated area, the Commission’s order cannot stand, even if such a finding had been made.

III. DUE PROCESS: NOTICE TO OWNERS OF NON-LEASED LANDS

The Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution provide that a person cannot be deprived of life, liberty or property without due process of law. Due process clearly attaches to the type of vested property rights such as the McClure group, the owners of unleased lands, now possess in their mineral estates. Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 944 (1935). Consequently, the Commission cannot adjudicate rights in those interests without first offering them some kind of hearing. Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steddum v. Kirby Lumber Co., 110 Tex. 513, 221 S.W. 920, 921 (1920). See F. Cooper, 1 State Administrative Law 141 (1965).

The question of notice is not before us. The McClure group obviously had some sort of notice, or knowledge of the action pending before the Commission because they asked to be heard by the Commission. It is not necessary, therefore, for us to pass upon any notice requirement.

We do have before us, and we do hold, that owners of unleased lands, whose interests would be materially affected, had a right to be heard at the Commission level. On this question, the Commission and Mitchell have contended that the owners of unleased land are amply protected, as to due process, because they can go to court under the A.P.A., Section 19. That section provides that parties have a right to judicial review and have a right to present additional evidence in court.

We cannot accept the contention that Section 19 of the A.P.A. affords the owners of unleased lands sufficient due process. If they must wait until they are aggrieved by a Commission’s order before asserting their due process rights under Section 19, they will have effectively been denied an opportunity to be heard at the real decision making level; i. e., before the Commission. Attacking the Commission’s order by intervention in court, after the matter has been decided by the Commission, offers them little help because all the court can do is uphold, or vacate, the Commission’s order. It cannot substitute its judgment for that of the Commission or rewrite the order in any respect. Consequently, we hold that procedural due process requires that these owners of unleased lands, whose substantial property rights were being disposed of, or materially affected by the Commission’s order, were entitled to be heard in their own right apart from those representing the operating interests in the hearings before the Commission.

In the alternative, Mitchell and the Commission contend that even if the McClure group is entitled to certain due process procedural protections such as the right to intervene prior to the issuance of the Commission’s orders, the failure of the Commission to accord them that right has caused them no real harm in this proceeding. Supposedly their interests were adequately represented at the Commission’s hearings by the operators of record in the affected area who were given express notice and an opportunity to oppose the action. Such representation and the right to intervene on appeal, according to Mitchell and the Commission, are sufficient to comply with existing constitutional and policy requirements set by courts for commission action. We do not agree.

The testimony of J. D. McClure in the trial court bears out the need and usefulness of separate representation and participation for owners of unleased land in Commission proceedings. His testimony reflects that the Commission’s orders for the Atoka formation would hamper his efforts to lease his land, and would reduce the royalties he would receive from production once leased. Therefore, as he is threatened with loss of property rights, which are not the same as the operators’ in the area; he, and others similarly situated, are entitled to invoke the procedural protection of due process. In cases like this one, that protection means that the McClure group had a right to intervene and to participate in the Commission’s hearings whenever the determinations made at those hearings will affect their interests differently from the interests of other parties to the proceedings.

The judgment of the trial court is affirmed.

      . The gas fields in question consist of seven entire fields and portions of two others, but for convenience we shall refer to the order as consolidating nine entire fields.

      . Article 6252-13a Section 16(b). The Act will hereinafter be referred to as the Administrative Procedure Act, or the A.P.A. Statutory references are to Vernon’s Texas Civil Statutes Annotated.

      . Article 6008 Section 10 provides:
      It shall be the duty of the Commission to prorate and regulate the daily gas well production from each common reservoir in the manner and method herein set forth. The Commission shall prorate and regulate such production for the protection of public and private interest:
      (a) In the prevention of waste as “waste” is defined herein;
      (b) In the adjustment of correlative rights and opportunities of each owner of gas in a common reservoir to produce and use or sell such gas as permitted in this Article.

      . Section 16(b) of the A.P.A. provides:
      (b) A final decision must include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed find-tags of fact, the decision shall include a ruling on each proposed finding. Parties shall be notified either personally or by mail of any decision or order. On written request, a copy of the decision or order shall be delivered or mailed to any party and to his attorney of record.

      . A “lens” in oil and gas terminology has been defined as:
      A relatively porous, permeable, irregularly shaped, sedimentary deposit surrounded by impervious rock. The lens may serve as a local center of concentration of oil in the formation. A lenticular sedimentary bed that pinches out in all directions.
      And a “lenticular reservoir” has been defined as:
      A lens of porous and permeable sediments surrounded by strata of low permeability, often shale. There may be a number of such lens unconnected with each other in an area. Such reservoirs are often small, but completely saturated with oil or gas. The shoestring sands of the mid-continent region are notable examples of lenticular reservoirs.
      7 Williams & Meyers, Oil & Gas Law, Oil & Gas Terms 318 (1976).

      . The statement of facts from the Commission hearing is in proper form, but the papers in the transcript from that agency are not easily found. We suggest that the papers in agency transcripts be numbered consecutively and that the transcript include an index indicating the nature of the papers in the transcript and the page numbers where those papers may be found.


author: ODOM, Judge.

text:
    Roman Vasquez CERDA, Appellant, v. The STATE of Texas, Appellee.
    No. 53030.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    Appellant’s Motion for Rehearing Denied Dec. 7, 1977.

      James S. Bates, Edinburg, for appellant.

      Oscar B. Mclnnis, Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder; punishment was assessed by a jury at 22 years.

The facts show that appellant and several of his companions drove from the Frontier Bar in Penitas to the Colorado Bar in Sullivan City, approximately 10 miles away, to fight the deceased and his companions. Although it is less than clear just what the altercation was over, it appears that the deceased and his cohorts had had some words with appellant’s friends at the Frontier Bar. The deceased was at that time armed with a .22 caliber pistol and had fired it at least once and possibly as many as three times either in the air or at the feet of appellant’s comrades. This all transpired prior to appellant’s arrival. The deceased and his group drove away and headed for the La Colorado Bar. When the appellant arrived he was told of the incident and became quite angered. He and his friends then went looking for the deceased. The evidence indicates that when the appellant and his three car loads of friends arrived at the La Colorado Bar a fight erupted inside the tavern. Outside the bar appellant struck deceased with a pistol and deceased fell to the ground and was kicked and stomped by appellant and his friends. The evidence indicated that the appellant fired two shots at the deceased, the first one apparently missing him, the second one killing him. The deceased at this point was apparently unconscious on the ground as appellant fired the shots while others kicked and beat him. A Mr. Flores testified that although deceased had had a gun earlier when he was at the Frontier Bar he had handed it to his brother in the car and did not have it on his person when the fighting took place at the Colorado Bar.

In his first ground of error appellant contends he was denied effective assistance of counsel as a result of the trial court’s denying his motion for continuance “because counsel for the Defendant Appellant was involved in another trial in another District Court, and was not prepared to proceed to trial on this cause.” The record reflects that appellant sought a continuance because counsel was involved in an election contest case, but it does not show counsel was unprepared for trial in appellant’s case. Quite to the contrary, counsel, in presenting the motion for continuance, made these representations to the trial court:

“ . . .1 urge the court to consider our motion, not for purposes of delay, since we can go to trial at anytime,
“ I agree that this case has been set for some time. And we would be ready but for the election contest which, if not finished this week, will be moot. . . . ”
“I advised your Honor yesterday that I would become available here as soon as the other was final.” (Emphasis added throughout.)

The judge in the election contest case had apparently released counsel so he could appear in appellant’s case, and it does not appear that counsel was unprepared or that appellant was denied effective assistance of counsel. Cf. Miller v. State, Tex.Cr.App., 537 S.W.2d 725. The first ground of error is overruled.

Appellant next complains that reversible error was committed by the introduction of a written statement of state’s witness Raul Bazan. On cross-examination, defense counsel read a portion of the statement made a few days after the event in an effort to discredit the witness. The state then requested that the statement in its entirety be introduced. It is appellant’s position that the statement constituted hearsay and hence was inadmissible. The state argues that the statement was admissible, pursuant to Art. 38.24, V.A.C.C.P., which provides in part, “When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other . . .

In Roman v. State, 503 S.W.2d 252, 253, this Court held:

“The purpose of this provision is to reduce the possibility of the fact finder receiving a false impression from hearing the evidence of only a part of the conversation, writing, act or declaration. The theory behind the rule is that by allowing the jury to hear the rest of the conversation on the same subject the whole picture will be filled out, removing any misleading effect which may have occurred from introduction of only a portion of the conversation. Obviously this purpose is achieved by receipt of the balance of the conversation on the same subject.”

We find the ground of error to be without merit.

Next appellant asserts error was committed by the introduction of a pistol into evidence. It is appellant’s contention that the evidence was insufficient to connect the pistol to him.

Direct evidence showed that appellant shot deceased with a pistol. The state further offered testimony that the pistol, state’s exhibit # 9, was found in a trash barrel outside the bar where the appellant worked. Ballistics tests by the Federal Bureau of Investigation confirmed that the pistol in question fired the bullet recovered from the deceased and that it was a .38 caliber pistol. There was also evidence that the appellant was the only individual who was seen with a weapon at the site of the shooting. The pistol was properly admitted. The ground of error is overruled.

Appellant further complains that reversible error was committed by the trial court when it received into evidence a color photograph of the deceased.

In Martin v. State, Tex.Cr.App., 475 S.W.2d 265, we delineated the proper standard for admission of a photograph:

“ . . . if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.”

Certainly it would be permissible for the state to introduce a verbal description of the deceased’s body in an effort to describe the injuries inflicted upon him.

The photograph in question, although being less than pleasant, certainly could not be characterized as gruesome. It is a photograph of the deceased’s head and neck area and multiple bruises and apparent cuts are depicted. It definitely does not rival the photographs complained of in Borroum v. State, 168 Tex.Cr.R. 552, 331 S.W.2d 314 and Terry v. State, Tex.Cr.App., 491 S.W.2d 161. We find nothing “in the instant case which would inflame a reasonable person sitting as a juror.” Martin, supra, at 267.

Appellant’s next four grounds of error address the jury charge. It is his contention that the trial court erred in refusing to include in the charge instructions on:

(A) accidental discharge of the weapon;
(B) self defense;
(C) the right of defendant to arm himself and seek out the deceased;
(D) voluntary manslaughter.

(A) Accidental discharge of the weapon. It is elementary that in the absence of any evidence that would support the submission of an issue, there is no requirement for the trial court to do so. Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842. We note initially that appellant did not testify in his own behalf, nor did he offer into evidence any testimony which would support the submission of such an issue. In fact, appellant’s witnesses testified that they did not see the appellant with a gun. The state’s evidence also did not raise the issue of accident. There is no evidence in the record which would support the submission of such a charge. The only evidence cited in appellant’s brief as supportive of submission of this issue is evidence that immediately prior to the shooting there was a fight inside the bar. This in no way addresses the issue of accidental discharge of the weapon nor does it shed any light on the events occurring immediately before the shooting outside the bar and during the actual firing of the gun. In fact the evidence is uncontradicted that the shooting occurred outside the bar. There is no evidence that would support the proposition that the shooting in question was anything but intentional.

(B) Self-defense. V.T.C.A., Penal Code Sec. 9.31(a), Self-Defense, states that “a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” The evidence at bar raises no issue as to any attack or apparent attack upon the person of the appellant by the deceased nor does it raise any reasonable expectation or fear of such an attack. The evidence simply does not warrant a charge as to self-defense. Cf. Dominguez v. State, Tex.Cr.App., 506 S.W.2d 880.

(C) The right of defendant to arm himself and seek out the deceased. Where no issue of self-defense is raised, a defendant is not entitled to an instruction on the right to arm himself and seek out the deceased. Cf. Young v. State, Tex.Cr.App., 530 S.W.2d 120; Sloan v. State, Tex.Cr. App., 409 S.W.2d 412.

(D) Voluntary manslaughter. Again, the appellant fails to point this Court to any testimony which can reasonably be said to raise the issue of whether he acted under the immediate influence of sudden passion arising from an adequate cause, the distinguishing characteristic between murder and voluntary manslaughter under V.T.C.A., Penal Code Secs. 19.02 and 19.04. Apparently the event which triggered his actions emanated from the deceased’s presence at the Frontier Bar in Penitas and the firing of the .22 caliber pistol, either in the air or at the feet of several of appellant’s friends, prior to appellant’s arrival. Appellant became angered, and then assembled three car loads of friends to seek out the deceased and his companions at the bar in Sullivan City, approximately ten miles away. The facts of this case do not support any finding that the death of the deceased was caused “under the immediate influence of sudden passion arising from an adequate cause.” Sec. 19.04(a), supra. The adequate cause required by the statute is “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Sec. 19.04(c), supra. The charge on voluntary manslaughter is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause. McCartney v. State, Tex.Cr.App., 542 S.W.2d 156.

Appellant also cites Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The Supreme Court there held, “[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case,” at 1892. (Emphasis added.) It is evidently appellant’s contention that the state had the burden of disproving beyond a reasonable doubt that he acted under the immediate influence of a sudden passion arising from an adequate cause. This contention is utterly without merit. In footnote 28 of Mullaney, supra, the Supreme Court stated: “[M]any States do require the defendant to show that there is ‘some evidence’ indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt. . . . Nothing in this opinion is intended to affect that requirement,” at 1891. As has previously been stated, the defendant did not present any evidence indicating that he acted under such an immediate influence.

Appellant’s grounds of error directed to the jury charge are overruled.

Finally, in his last ground of error appellant complains of improper jury argument. The statement of facts does not contain the jury argument and the record contains no formal bill of exception as required by Art. 40.09, Sec. 6, V.A.C.C.P. It also does not appear that any request was made by the appellant of the court reporter to take the jury argument, as provided by Art. 40.09, Sec. 4, V.A.C.C.P. Although an informal bill of exception was made, this was not sufficient to preserve error, if any, for review. “It is only where the entire statement of the prosecutor is contained within the statement of facts that this Court will consider informal bills of exception brought forward thereby.” Gasery v. State, Tex.Cr.App., 465 S.W.2d 377, 378. See also Holmes v. State, Tex.Cr.App., 398 S.W.2d 121; Muro v. State, Tex.Cr.App., 387 S.W.2d 674. The ground of error is overruled.

No error having been reflected by the record, the judgment of the trial court is affirmed.


author: DAVIS, Commissioner.

text:
    George BORREGO, Appellant, v. The STATE of Texas, Appellee.
    No. 54336.
    Court of Criminal Appeals of Texas.
    April 27, 1977.
    Arnold X. Medina, on appeal only, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty., and J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

On April 22, 1976, appellant waived trial by jury and entered a plea of guilty before the court to the offense of unlawful possession of heroin. The court assessed punishment at imprisonment for five years.

The appeal is before us on a single ground of error. In it appellant contends that the trial court erred in accepting his guilty plea because appellant was admonished of the range of punishment for a first-degree felony instead of being admonished as to the range for a second-degree felony.

Possession of heroin is a felony of the second degree. Sections 4.02(b)(2)(J) and 4.04(b)(1), Controlled Substances Act (Article 4476-15, V.A.C.S.). The punishment for a second-degree felony is confinement in the Department of Corrections for a term of not more than twenty years nor less than two years. Section 4.01(b)(2), Controlled Substances Act. In addition to imprisonment, a fine not to exceed ten thousand dollars may be assessed. Section 4.01(b)(2), supra.

In the instant case, the court admonished appellant that he “could be sentenced to life or any term of years not more than ninety-nine years nor less than five years.” This was the punishment applicable upon conviction for a first-degree felony. Section 4.01(b)(1), Controlled Substances Act.

Article 26.13(a)(1), V.A.C.C.P., provides that, prior to accepting a plea of guilty or plea of nolo contendere, the trial court shall admonish the defendant of the range of punishment attached to the offense.

Although the range of punishment assessed is within the range of punishment for both a first- and second-degree felony, the penalty of five years was the lowest available under a first-degree felony. The trial court may well have thought this was the lowest penalty he could assess. Therefore, since the punishment was assessed by the court, we remand for the sole purpose of reassessment of punishment by the court.

It is so ordered.

Opinion approved by the Court.