author: AKIN, Justice.

text:
    SHELDON PETROLEUM COMPANY et al., Appellants, v. Polly F. PEIRCE, Appellee.
    No. 19038.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 17, 1977.

      Royal H. Brin, Jr., Dallas, Donald M. Hunt, Lubbock, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellants.
    Wm. B. Browder, Jr., James V. Hammett, Jr., Stubbeman, McRae, Sealy, Lughlin & Browder, Austin, for appellee.
   AKIN, Justice.

This is an appeal from an order denying defendants’ pleas of privilege to be sued in Lubbock County. Mrs. Polly Peirce, plaintiff, sued defendants, Mrs. Charlotte Carter, Charles Carter, Sheldon Petroleum Company of Texas, and Sheldon Petroleum Company of Delaware. Mrs. Peirce contends ■that she furnished $25,000 to Mrs. Carter, that this money was used by Charles Carter to purchase oil properties now owned by Sheldon of Delaware, and that Sheldon of Delaware holds these properties in trust for her. Sheldon of Texas has been merged into Sheldon of Delaware. At the time suit was filed, Sheldon of Delaware’s registered agent for service was located in Dallas County, although its only place of business in Texas was in Lubbock. Since all of the other defendants are undisputedly residents of Lubbock County, plaintiff seeks to sustain venue in Dallas under Tex.Rev.Civ. Stat.Ann. art. 1995(4) (Vernon 1964), which provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. Because we hold that Sheldon of Delaware is a resident of Dallas for venue purposes, the appeal turns on whether plaintiff has pleaded and proved a prima facie cause of action against Sheldon of Delaware. Because we also hold that plaintiff has failed to establish a cause of action against Sheldon of Delaware, we reverse the order of the trial court and transfer the cause to Lubbock.

The business in which plaintiff alleges that her money was invested began in 1948 as a partnership between Charles Carter and Sam Mandel. This partnership, known as Carter & Mandel, was engaged in buying, selling, and developing oil and gas properties. Mandel contributed $15,000, and Charles Carter contributed his services as manager. Mandel was not actively involved in the operation of the partnership; in fact, he executed a power of attorney to permit Charles Carter to deal with partnership property and funds without the necessity of Mandel’s signature. In 1952, a New York investment counselor approached the partnership for the purpose of developing tax shelters for his clients. They agreed on an agency account format in which investors signed an agency agreement and a power'of attorney, giving Charles Carter authority to invest their funds in various oil and gas properties in their behalf. This agreement provided that the clients’ investments were to be repaid out of profits. When each investment was repaid, Carter & Mandel was to receive 27½% of the properties acquired as its fee, with the investor retaining the remainder. In 1963, it was decided that a corporate entity would be superior to the agency account format. Pursuant to this decision, Sheldon of Texas was created. The property owned by the agency account investors, as well as most partnership property, was transferred to the corporation, which issued shares in proportion to the ownership of properties transferred. Although Carter & Mandel received 37,422 shares, Charles Carter, individually, received none. In 1969, all remaining partnership property was likewise transferred to Sheldon of Texas. Carter & Mandel received a credit for money it owed the corporation in addition to a small sum of cash; however, no additional stock was issued to the partnership. After this transfer, Carter & Mandel’s sole asset was its stock in Sheldon of Texas, which became a publicly owned corporation in 1970. In 1973, Sheldon of Texas was merged, through an exchange of stock, into Sheldon of Delaware, also a public corporation. Thereafter, for all practical purposes, Sheldon of Texas ceased to exist as an active business entity. Throughout this time, Charles Carter occupied the primary position of power and control over Carter & Mandel, as well as both Sheldon corporations.

Prior to the formation of Carter & Man-del in 1948, Mrs. Peirce had developed a close friendship with Mrs. Carter while both were living in Maine. In 1947, when Charles Carter was attempting to break into the oil and gas business in Texas, Mrs. Carter solicited $5,000 from Mrs. Peirce, purportedly to help finance Charles’s oil business. The two ladies agreed that Mrs. Peirce would receive one-half of any property or money received by Mrs. Carter from Charles. In 1955, Mrs. Carter obtained an additional $20,000 from Mrs. Peirce, again ostensibly to assist Charles in his oil business. Mrs. Peirce’s investment, however, was not one of the usual agency accounts of Carter & Mandel. Rather, she understood that she was to share in the profits received by Charles Carter, who now denies that he ever received any of the funds advanced by Mrs. Peirce or that he was a party to any agreement concerning these funds. Mrs. Peirce is seeking to recover a portion of the property purchased by Carter & Mandel and ultimately conveyed to Sheldon of Delaware.

Residence of Foreign Corporation

Defendants contend that venue is not proper in Dallas County under article 1995(4) because no defendant resides there. It is their position that Sheldon of Delaware resides only in Lubbock County where its only place of business is located. Mrs. Peirce contends, however, that Sheldon of Delaware is a resident of Dallas County for venue purposes because at the time the suit was commenced, its registered agent for service, as required by Tex.Bus.Corp. Act Ann. art. 8.08 (Vernon 1956), was located in Dallas. In support of her contention, she cites Ward v. Fairway Operating Co., 364 S.W.2d 194, 195 (Tex.1963), which held that a domestic corporation was, for venue purposes, a resident of the county in which its registered agent was located. Defendants argue that this decision is not controlling where a foreign corporation is concerned and that the rationale given for the result in Ward does not apply here. We cannot agree. Although the supreme court was concerned with registered agents of domestic corporations under Tex.Bus.Corp. Act Ann. art. 2.09 (Vernon 1956) rather than registered agents of foreign corporations under article 8.08, there is no difference in the statutory language which would indicate that the considerations set forth in Ward should not apply. Defendants rely on language in Ward which indicates that the court was concerned with the problem of ascertaining which of several offices was the principal office and contend that this decision is not applicable because Sheldon of Delaware has only one place of business. Although Ward does mention the multiple office problem, it is not the basis of the decision. The court also states that the statute provides for a place of residence where a corporation can always be found and notes that if a corporation believes dual residence is a burden, it has the power to alleviate the burden by designating its principal place of business as its registered office. Indeed, Sheldon of Delaware has done so since this suit was instituted. Since the supreme court did not expressly limit its decision in Ward to domestic corporations with multiple outlets, we conclude that the basic rationale behind that decision likewise applies to foreign corporations. We hold, therefore, that a foreign corporation is a resident, for venue purposes, of the county in which its registered agent is located at the time suit is filed. A similar holding was reached in Zurich Insurance Company v. Wiegers, 527 S.W.2d 511, 514 (Tex.Civ.App. —Austin 1975, no writ). Since Sheldon of Delaware is a resident of Dallas County, venue against all defendants may be maintained in Dallas if Mrs. Peirce pleaded and proved that she has a cause of action against Sheldon of Delaware and that the nonresident defendants are properly joined. Tex.Rev.Civ.Stat.Ann. art. 1995(4) (Vernon 1964); Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d. 1300 (1936)

Plaintiff’s Causes of Action

Mrs. Peirce contends that Charles Carter, Carter and Mandel, Sheldon of Texas, and Sheldon of Delaware were, in succession, either constructive or resulting trustees of the $25,000 she paid to Charlotte Carter and the property into which this money mutated. Constructive and resulting trusts, although similar, have different theoretical bases. A resulting trust exists where one party (A) allows a second party (B) to take legal title to property purchased with A’s money. It requires an intent to place legal title in B, even though equitable title remains in A. On the other hand, intent is not necessary for the creation of a constructive trust. A constructive trust will be imposed in equity where the party with legal title would be unjustly enriched if permitted to retain the property. 5 A. Scott, Law of Trusts, §§ 404.2, 440.1, 462.1 (3d ed. 1967).

A. Resulting Trust

The doctrine of resulting trust is based on the concept that equitable title should rest with the party who furnishes consideration for a purchase. Tolle v. Sawtelle, 246 S.W.2d 916, 918 (Tex.Civ.App.— Eastland 1952, writ ref’d). The resulting trust must, therefore, arise when legal title passes to the one upon whom the trust is to be imposed. Solether v. Trinity Fire Ins. Co., 124 Tex. 363, 78 S.W.2d 180, 182 (1935). Due to the nature of the doctrine, it is necessary that the party seeking to impose the trust trace his interest into the consideration which is given when legal title to specific property is passed to the person against whom the trust is asserted. Landon v. Brown, 266 S.W.2d 404, 406 (Tex.Civ.App. — Amarillo 1954, writ ref’d n. r. e.). Mrs. Peirce does not know what was done with the $25,000 after it was given to Mrs. Carter. She cannot, therefore, assert a resulting trust against Sheldon of Delaware because she has not traced the $25,000 into any property or money which constituted consideration for any purchase made by Charles Carter, Carter and Mandel, Sheldon of Texas, or Sheldon of Delaware. We conclude, therefore, that she has failed, as a matter of law, to establish a resulting trust against any of the assets of Sheldon of Delaware, the resident defendant.

B. Constructive Trust

Alternatively, Mrs. Peirce contends that Sheldon of Delaware holds property as a constructive trustee for her benefit. A constructive trust will be imposed where it would constitute unjust enrichment if the party in possession of property is allowed to retain it. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 262, 264-65 (1951). Ordinarily, this requires a showing that retention of specific property would constitute unjust enrichment; that is, that the party asserting the constructive trust must be able to show what property he is entitled to have. See Meadows v. Bierschwale, 516 S.W.2d 125, 129 (Tex.1974). As noted above, Mrs. Peirce is unable to do so. The courts have recognized, however, that it would be inequitable to place the burden of tracing on the party asserting the trust where the constructive trustee has wrongfully commingled his own funds or property with funds or property against which a trust is asserted, especially where the proof necessary to separate the funds is peculiarly within the knowledge and possession of the trustee. Logan v. Logan, 138 Tex. 40, 156 S.W.2d 507, 510-11 (1941). Cf. Humble Oil & Refining Co. v. West, 508 S.W.2d 812, 818 (Tex.1974) (applying the rule in a “confusion of goods” case). If the property is commingled and the trustee does not establish which is his, the entire fund is considered to be subject to the trust. Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493, 498-99 (1943). Before this burden will be imposed, however, it is incumbent upon the party asserting the trust to show that the funds were in fact commingled and that commingled funds were used to purchase the property against which the trust is asserted. Landry v. Williamson, 335 S.W.2d 400, 405 (Tex.Civ.App. — Houston 1960, writ ref’d n. r. e.).

Since the trial court denied the pleas of privilege, but did not file findings of fact or conclusions of law, we will presume it made any findings necessary to support its order if such findings are supported by sufficient evidence. National Farmers Organization v. Ramsey, 500 S.W.2d 192, 193 (Tex.Civ.App. — Amarillo 1973, no writ). To establish a cause of action against the resident defendant, Sheldon of Delaware, Mrs. Peirce must show the property purchased with commingled funds is in the possession of Sheldon of Delaware. In order to find this, the trial court had to find first that funds acquired from Mrs. Peirce were commingled with Carter and Mandel funds. This is so because the property which was transferred to the Sheldon corporations came from Carter and Mandel (and the agency accounts), not from either of the Carters individually. There is no evidence that Charles Carter used Carter and Mandel funds to purchase specific property for the partnership in violation of an agreement to purchase this property for Mrs. Peirce. The record shows that she is unable to identify any property as that purchased with her funds. It is this fact which necessitates the use of the commingling theory if Mrs. Peirce is to establish a cause of action against Sheldon of Delaware. We are, therefore, presented with the question of whether there is sufficient evidence to support a finding that Mrs. Peirce’s funds were commingled with Carter and Mandel funds.

Mrs. Peirce produced a letter agreement, dated November 21, 1947, signed by herself and Mrs. Carter. This agreement provided that Mrs. Peirce would give Mrs. Carter $5,000 to help Charles Carter “in the promotion and financing of Texas ‘oil deals’ ..” Mrs. Peirce was to receive one-half of any money or property which Mrs. Carter received in return for the investment. Mrs. Peirce visited the Carters in Texas regularly and had frequent telephone conversations in which they discussed the oil business in a general way. In 1951, during one of her visits, Charles Carter took Mrs. Peirce to inspect a drilling site in Scurry County. Mrs. Peirce testified to a conversation she had with Charles while inspecting the site: “So I finally said, well, Charles, your mother says that I won’t get any money out of this because you have to live on it and he said that’s true and changed the subject.” In 1955, Mrs. Peirce testified, the Carters asked Mrs. Peirce to come to Texas to discuss winding up a failing antique business in which Mrs. Peirce and Mrs. Carter were partners and also “to talk about a further investment in the oil business.” On May 31, 1955, Mrs. Peirce testified that she had a lengthy discussion with the Carters concerning her investment. During this conversation, she said, the Carters requested her to make additional investments in the oil business. Pursuant to this conversation, Mrs. Peirce and Mrs. Carter signed an agreement which provided that Mrs. Peirce would invest an additional $20,000. In return, Charles was to transfer one-half of his interest in Carter and Mandel to Mrs. Carter, who would, in turn, assign half of her interest to Mrs. Peirce; in other words, Mrs. Peirce would receive one-eighth of the Carter and Man-del interest. In 1957, Charles wrote a letter to Mrs. Peirce in which he stated that “our oil business is going along very well indeed,” which she thought referred to “her” interest in the business. She further testified that this interpretation was supported by telephone conversations in 1956 in which Charles and Mrs. Peirce discussed promising developments in Oklahoma property. There was even a champagne toast, via long distance, to celebrate their good fortune. No payments were made, however, to Mrs. Peirce at any time. After another major oil strike in 1972, Mrs. Peirce again requested payment and was told by Mrs. Carter that she would be given one thousand shares of Sheldon of Delaware, which was worth six to seven dollars per share. Feeling betrayed, Mrs. Peirce instituted this litigation.

There was testimony from Charles Carter, Sam Mandel, and an independent accountant that Charles Carter never made a capital contribution to the partnership; his interest was based solely on services rendered. This testimony also revealed that no capital contribution was made by Mrs. Carter or Mrs. Peirce. The sole capital contribution was the $15,000 supplied by Mandel.

We hold that this evidence is insufficient to support a finding that Mrs. Peirce’s funds were commingled with Carter and Mandel funds. Since she is unable to trace any of her money into specific property held by Sheldon of Delaware, her failure to show a commingling negates a constructive trust against Sheldon of Delaware. Admittedly, had Charles Carter contributed capital to the partnership, even though it might not have been the precise funds furnished by Mrs. Peirce, she may have established a constructive trust, at least with respect to Carter’s share of the stock in Sheldon of Delaware held by Carter and Mandel. See 5 A. Scott, Law of Trusts, § 440.1 (3d ed. 1967). Since no funds were put into the partnership by Charles Carter, no funds upon which a trust could have been imposed were traced into Carter and Mandel. Mrs. Peirce has failed, therefore, to establish a cause of action against the only defendant that is a resident of Dallas County, Sheldon of Delaware. Accordingly, defendants’ pleas of privilege to be sued in Lubbock County should have been sustained. The order of the trial court is, therefore, reversed and this cause is ordered transferred to Lubbock County for further proceedings.


source: Caselaw Access Project

author: DAVIS, Commissioner. ODOM, Judge. DOUGLAS, Judge.

license: Public Domain

text:
    Charles William VICTORY, Appellant, v. The STATE of Texas, Appellee.
    No. 50764.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Opinion on State’s Motion for Rehearing Nov. 3, 1976.
    Dissenting Opinion on State’s Second Motion for Rehearing March 9, 1977.
    Mitchell D. Stevens, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm and Les Eubanks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for indecency with a child. Punishment was assessed by the jury at two years.

At the outset, appellant contends the court erred in overruling his motion to quash the indictment.

The pertinent portion of the indictment alleges that appellant did

“then and there knowingly and intentionally engage in sexual contact with J_V_, a child younger than 17 years and not then the spouse of the Defendant, by touching the genitals of the said J_V-”

Appellant urges that the “intent to arouse or gratify the sexual desire of any person” is an element of the offense and that the indictment is defective for failure to allege such culpable mental state.

V.T.C.A. Penal Code, Sec. 21.11(a)(1) defines the crime of indecency with a child:

“(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child.”

The term “sexual contact" for the purposes of this chapter of the Penal Code is defined by V.T.C.A. Penal Code, Sec. 21.-01(2):

“(2) ‘Sexual contact’ means any touching of the anus or any part of the genitals of another person or the breast of a female 10 years or older with intent to arouse or gratify the sexual desire of any person.”

Article 21.05, V.A.C.C.P. provides that, “Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment; . ..” See Worthington v. State, Tex.Cr.App., 469 S.W.2d 182.

The State cites Middleton v. State, Tex.Cr.App., 476 S.W.2d 14, where an indictment charging theft of mercury under Art. 1436b, V.A.P.C. was held not to be void on its face where it failed to aver that accused intended to deprive the owner of the value of the alleged stolen property. We find Middleton distinguishable from the instant case since Art. 1436b, supra, under which prosecution was had in Middleton, provided, “. . . and for the purpose of this

Act, the word ‘steal’ shall mean to take wrongfully and without just claim of authority any mercury, and the word ‘steal’ need not be defined in any indictment for the prosecution of any offense hereunder.” (Emphasis supplied)

The Legislature has not seen fit to provide that a key word shall dispense with the necessity of averring a necessary culpable state of mind under the offense charged in the instant case.

We find that the court erred in overruling appellant’s motion to quash the indictment.

The judgment is reversed and the cause dismissed.

Opinion approved by the Court.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

The State in its motion for rehearing urges that the indictment in this case was sufficient, and that the reversal should be set aside.

First, we emphasize what was said in our opinion on original submission: appellant’s contention is that the trial court erred in overruling his motion to quash the indictment.

Article 21.05, V.A.C.C.P., quoted in our opinion on original submission, provides:

“Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment, . . ”

Appellant, in his motion to quash the indictment, stated that it failed to comply with this statutory provision. The motion was nevertheless denied.

The State presents several arguments in support of its motion. They may be identified as (1) Article 21.05, supra, does not apply; (2) to require pleading of a particular intent would create chaos; (3) Earl v. State, Tex.Cr.App., 514 S.W.2d 273, and Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785, are in conflict with our holding on original submission; and (4) the legislative scheme of the new Penal Code dispensed with the need to plead the particular intent in this case.

The first argument is succinctly summed up in the following statement from the State’s brief:

“That article [21.05, supra] only requires the statement of a particular intent in the indictment when it ‘is a material fact in the description of the offense.’ The description of the offense as set forth in the statute does not state the secondary intent as a material fact in its description.”

Article 21.05 requires that a particular intent must be pleaded if it is a material fact in the description of the offense. V.T. C.A. Penal Code, Sec. 21.11(a)(1) defines indecency with a child. That statutory provision includes in its definition the term “sexual contact”, which, in turn, is given a particular legal meaning in V.T.C.A. Penal Code, Sec. 21.01(2). “Sexual contact” is, as the State characterizes it in its brief, “a word of art” with “a specialized meaning.” Part of that “specialized meaning” is the requirement that the acts therein described be committed with a particular intent. The intent is, then, a material fact and, indeed an essential part of the description of the offense.

The State appears to contend that only the section of the code commencing “A person commits an offense if” is to be examined to determine the description of the offense. Such a holding upon enactment of a statute providing “A person commits an offense if he commits burglary”, and defining burglary in a different section, would support an indictment that alleged no more than that John Doe on or about a stated date did commit burglary. It is manifest that the State’s position is based upon a mere technicality and is untenable.

Furthermore, if the State’s position that the particular intent is not a material fact were correct, not only could the matter here at issue be omitted from the indictment, but it could be dispensed with in the proof as well. It cannot be denied that the particular intent here is a material fact in the description of the offense, and must be alleged in the indictment. The State’s first argument is without merit.

The State next argues that “the effect of the construction which the Court has placed upon this Code by this decision leads us to utter chaos when it is applied to Chapter 43 of the new Penal Code.” This Court does not render advisory opinions and we will not do so on Chapter 43. The thrust of the State’s argument, however, appears to be no more than this: to require the State to plead a particular intent in addition to the general culpable mental state will require the State to plead more than one intent. The thrust is true, but we fail to see how that would create chaos in the law. Article 21.05, V.A.C.C.P., requires particular intents be pleaded. Further, the new Penal Code is not just a collection of separate statutes; it is an integrated whole. Definitions of terms with special meanings for purposes of the entire Code are collected in Sec. 1.07 thereof, and other definitions are collected at the beginning of relevant chapters. Anyone who reads the Code as a whole will be cognizant of its structure, and should have no trouble recognizing which offenses require a particular intent and which do not. So long as the statutes are consulted for guidance in drafting pleadings and for guidance in ruling upon exceptions to indictments, there will not be the chaos suggested in the State’s brief. The State’s second’ argument is without merit.

The State next asserts, “Very plainly, this decision is in conflict with Earl v. State, [Tex.Cr.App.,] 514 S.W.2d 273, where the court held that it was not necessary to plead the elements of theft in charging robbery ‘in the course of committing theft,’ ” and “It would appear by the same reasoning that this opinion is in conflict with Gonzales v. State, [Tex.Cr.App.,] 517 S.W.2d 785.” The reasoning in support of these assertions is, as worded in the State’s brief:

“In that case [Earl v. State] the definition of theft is contained in another chapter. In the instant case the definition of sexual contact is contained in a separate section from the definition of the offense.”

In Earl v. State, supra, it was contended that the indictment, which charged robbery and alleged the acts were committed “while in the course of committing theft,” was defective for failure to allege the constituent elements of theft. The Court observed:

“Thus the actual commission of the offense of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same.”

Nowhere was it even suggested in Earl that the location of the definition of theft in the Penal Code was determinative of the appeal. Neither was the indictment in that case violative of Art. 21.05, supra, as is the indictment in this case.

Gonzales v. State, supra, considered a challenge to a burglary indictment. The indictment there alleged the acts were committed “with intent to commit theft,” but did not allege the constituent elements of theft. The Court held that allegations of the constituent elements of theft were not required. It did not hold that allegations of the particular intent were dispensable. The indictment in that case, unlike the one in this case, did allege the particular intent as required by Art. 21.05, supra.

We also observe at this point that our recent opinion in Teniente v. State, Tex.Cr.App., 533 S.W.2d 805 is likewise not in conflict with our decision today. Not only was there no motion to quash in Teniente, but, even more importantly, the burglary indictment in that case did allege the particular accompanying intent required by Art. 21.05, supra, in that it alleged the acts were committed “with the intent to commit theft.” The opposite is true here. Ten-iente stands for the proposition that the allegation of the required particular intent sufficed for the more general culpable mental state as well. The instant case presents precisely the opposite issue: does an allegation of the general culpable mental state dispense with the need to allege the particular intent? Art. 21.05, supra, answers that the particular intent itself must be alleged.

The reversal of this conviction not only is not in conflict with the cases cited by the State; it does not even involve the same principles of law that controlled the dispositions of those earlier cases. The State’s third argument is without merit.

The State’s final argument is as follows:

“An overview of the entire Penal Code makes it clear that the Legislature intended, by placing definitions of terms in separate articles than within the definition of the offense itself that they were not stating specific elements of the offense in its description but merely defining subordinate terms so that the jury could be so instructed.”

No legislative history or statement of legislative intent is cited in support of this assertion. It is our opinion that definitions were grouped together in Sec. 1.07, supra, and other sections, not so that the matters therein would not be elements, but rather for simplification, accessibility and uniformity of meanings where such was intended. The definitions themselves refute the State’s position. Sec. 1.07(a), supra, provides in relevant part:

“(13) ‘Element of offense’ means:
(A) the forbidden conduct;
(B) the required culpability;
(C) any required result; and
(D) the negation of any exception to the offense.”

And also:

“(8) ‘Conduct’ means an act or omission and its accompanying mental state.”

In alleging the facts constituting the forbidden conduct, an indictment must allege both the act or omission and the accompanying mental state, if any. The accompanying mental state to the act or omission is part of the conduct, as statutorily defined (Sec. 1.07(a)(8)), and is something apart from and in addition to the required culpability (Sec. 1.07(a)(13)(A) as distinguished from Sec. 1.07(a)(13)(B)).

Furthermore, the new Penal Code was enacted primarily as a code of substantive criminal law. Changes in criminal procedure were small in number and are found in the conforming amendments. Acts 1973, 63rd Leg., Ch. 399, Sec. 2. The State, in effect, argues that the formal structure of the new Penal Code evidences a legislative intent that the pleading requirements of Art. 21.05, V.A.C.C.P., not apply here. Had the Legislature intended to repeal or amend the provision of the Code of Criminal Procedure upon which this reversal is founded, we feel such .purpose would have been effected in the same manner that numerous amendments were made to that code. Its failure to do so is significant.

The State’s fourth argument is also without merit.

The motion for rehearing is denied.

DISSENTING OPINION ON STATE’S SECOND MOTION FOR REHEARING

DOUGLAS, Judge.

The majority overrules the State’s motion for rehearing without written opinion. The indictment alleges, in substance, that appellant did “then and there knowingly and intentionally engage in the sexual contact of _, a child younger than seventeen years of age, not being the spouse of the defendant, by touching the genitals of the said_”

This alleges an offense under V.T.C.A., Penal Code, Section 21.11(a)(1), which provides:

“(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child; ...”

The definition of “sexual contact”, that it should be done with intent to arouse or gratify the sexual desire of any person, is merely a definition. The allegation that he intentionally and knowingly engaged in sexual contact with a child under seventeen years by touching the genitals connotes that it was done with the intent to gratify sexual desire. It rules out an accidental touching. It should not be required by this Court that the obvious be alleged.

The requirement that with intent to arouse or gratify the sexual desire of any person is necessary after alleging that one knowingly engaged in sexual contact with a child under seventeen years of age is requiring, in effect, to inform him of something that he is already aware of as alleged in the indictment.

There is no showing that appellant was any way misled or did not know what he was charged with.

Article 21.17, V.A.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

Article 21.12, V.A.C.C.P., provides:

“When a statute defining any offense uses special or particular terms, indictment on it may use the general term which, in common language, embraces the special term. To charge an unlawful sale, it is necessary to name the purchaser.”

See Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976), and the authorities there cited. In Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976), and in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), the majority and this writer disagree on what has to be alleged in indictments. It would serve no useful purpose to repeat the arguments. See also Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1975, motion for rehearing, January 26, 1977), including the concurring and dissenting opinions.

The State’s motion for rehearing should be granted and the judgment should be affirmed.

      . See New Texas Penal Code Forms, Sec. 21.11A, “Indecency with a Child—Sexual Contact” (W. Morrison & T. Blackwell, 1973).

      . The law does require pleading more than one mental element in some offenses. See discussion of V.T.C.A. Penal Code Sec. 1.07(a)(8) and (13) below. But see also Teniente v. State, cited and discussed below.


author: ODOM, Judge. DOUGLAS, Judge, ROBERTS, Judge,

text:
    Donald Elliot SMITH, Appellant, v. The STATE of Texas, Appellee. Louis Albert SMITH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51370, 51371.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearings Denied March 9, 1977.

      Polk Shelton, Austin, for Donald Elliot Smith.
    Laird Palmer, Austin, for Louis Albert Smith.
    Richard A. Fielder, Dist. Atty., Lockhart, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are appeals from convictions under the former Penal Code for robbery by firearms. Appellants were tried jointly. The jury assessed each appellant’s punishment at ninety-nine years’ imprisonment.

The appellants’ first ground of error asserts that their confessions were improperly admitted into evidence. Appellants contend that their confessions were shown to be involuntary and that the State failed to rebut sufficiently this showing as required by our decisions in Sherman v. State, Tex.Cr.App., 532 S.W.2d 634, and Farr v. State, Tex.Cr.App., 519 S.W.2d 876.

We agree with this contention insofar as it relates to the admission of Louis Albert Smith’s confession. We hold, however, that Donald Elliot Smith’s confession was properly admitted into evidence.

LOUIS ALBERT SMITH’S CASE

Louis Albert Smith, in the company of his attorney, surrendered to the F.B.I. in New Orleans on May 29,1973. After being charged with robbery he was placed in the New Orleans House of Detention for confinement. He signed written statements confessing to the robbery for F.B.I. agents P. M. King and B. S. Thomas on June 5 and June 6, 1973.

Louis Smith testified that prior to meeting with the F.B.I. agents and giving the first statement he was taken upstairs in the House of Detention and beaten and threatened by New Orleans police, who told him he would be returned to Texas and receive worse treatment if he did not sign a statement confessing to the Texas robbery. During the meeting on June 5, at which he signed the first statement, the F.B.I. agents presented him with the prepared statement and promised him he would receive a probated federal sentence in New Orleans if he signed it, and that he would remain in federal custody instead of being returned to Texas. Smith testified he thought the meeting with the F.B.I. and the prepared F.B.I. statement were a continuation of what he had been told by the New Orleans police during his previous beatings.

After signing the first statement he was returned to his cell, and then late that night or about 3:00 a. m. the next morning he was taken back upstairs by the local police and beaten and threatened again because, according to Smith, the first statement he had signed was the wrong statement. He met again with the F.B.I. agents on June 6 and signed the second statement confessing to the robbery and, additionally, to a rape committed during the robbery. Smith also testified that he signed the statement only because he was beaten by the New Orleans police and was threatened by them with further beatings if he would not sign.

Agent King, on being called as a witness for the State, testified that he and Thomas interviewed Louis Smith at the New Orleans House of Detention on June 5 and 6, 1973. He testified that during the June 5 interview Smith stated that he wanted to get the matter cleared up, that he signed a waiver of rights form, and that physically he appeared normal. After giving and signing the June 5 confession, according to King, Smith was told by the agents that they did not believe it in its entirety because the rape was not admitted. Smith allegedly replied, “All right, I’ll admit the rape but I’ll talk to you tomorrow and give you a statement tomorrow.” The June 5 interview was then terminated. On June 6, King testified, Smith “came voluntarily, read his [waiver of rights] form, signed it, and proceeded to give us the story.”

On cross-examination King stated that he had no knowledge of whether Louis Smith was coerced, beaten, or threatened by law enforcement officers before the interviews in an attempt to induce him to sign any statements.

Agent Thomas testified that he and King interviewed Louis Smith at the New Orleans House of Detention on June 5 and 6. He corroborated King’s testimony that on June 5 Smith signed the waiver of rights form and said he wanted to clear the record and get the matter straightened out, and that after taking the June 5 statement the agents indicated they did not believe it entirely, prompting Smith’s reply, “Well, if you don’t believe me completely, come back tomorrow and I'll give you a statement to set the record straight.” He testified the June 6 statement was taken after Smith signed another waiver of rights form, and that Smith said he was making the statement on the advice of his lawyer and because he wanted to get the matter resolved and wanted the truth to come out. On cross-examination Thomas testified that he had no knowledge of what was said to Smith or done to Smith while confined in the New Orleans House of Detention, and that he did not know whether any threats were made or any effort made to abuse or coerce Smith into giving a confession. No New Orleans officers testified.

This record demonstrates that the admission of Louis Smith’s confession falls directly within the rule that required reversal in Farr v. State, and Sherman v. State, supra, in which it was stated:

“It has long been the law of this State that whenever the testimony of the accused as to alleged coercive acts is undisputed, then as a matter of law, the confession is inadmissible. [Citations omitted.]” Farr, at 880.
“Neither of the officers who testified at the hearing denied or could deny either assertion because there was no showing that either was present when the statements were allegedly made.1 Cochran, who could have denied the assertions, inexplicably failed to testify. Therefore, under any standard of the State’s burden of proof, the trial court abused its discretion in overruling appellant’s motion to suppress because appellant’s allegations of coercion were not contradicted.2
“1 Cf. Farr v. State, Tex.Cr.App., 519 S.W.2d 876, 880 n. 4: ‘Had the police officers testified and denied any coercion or someone present at this incident denied any use of force, thus contradicting appellant’s testimony, the trial judge as trier of fact could have determined the confession to be voluntary.’ (Emphasis added)
“2 It should be understood that if the State had presented a reasonable explanation of Cochran’s failure to testify, such as his death or their inability to locate him, the trial court would have been free to disbelieve appellant’s testimony. When the State neither placed Cochran on the stand nor explained his absence, the obvious inference is that he did not testify because he could not deny appellant’s allegations. See Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). No such inference could be made, however, if there were an explanation of the absence of the witness.” Sherman, at 636.

Louis Smith’s contention must be sustained because his allegations of coercion were not rebutted by the State. His conviction must be reversed and the cause remanded for a new trial.

DONALD ELLIOT SMITH’S CASE

Donald Elliot Smith was arrested on the afternoon of May 23, 1973, near Slidell, Louisiana, in connection with a Mississippi robbery. F.B.I. agent Thomas observed appellant at the scene of the arrest. He was taken to a local jail for the night, and the next day was returned to the vicinity of his arrest to search for hidden money from the Mississippi robbery. On the afternoon of that day, the 24th, appellant approached F.B.I. agent Thomas, who was accompanying appellant and local police officers on the search, and orally confessed to the Texas robbery. The next day Thomas took a detailed oral confession to the Texas robbery from the appellant. Later that day he was driven from Slidell to Jackson, Mississippi, where on the 26th he met with a Texas Ranger and two deputy sheriffs from Caldwell County who took a written confession. It was this confession that was introduced against him at trial and is now challenged as being the result of beatings and threats.

Donald Smith testified to the following mistreatment. On May 23 after his arrest he was beaten by local Louisiana officers in the car on the way to the jail. During the night of May 23 — 24 he was beaten at the jail. At 3:00 a. m. on May 24 he was transferred to another jail and beaten. During the search for the money on May 24, according to appellant’s testimony, he was beaten some more. He also testified that no F.B.I. agent was present during this search. On May 25 he was again taken on a search for the money and again beaten, this time in the presence of the F.B.I. agent, who offered to protect him if he would answer questions. He testified, “I gave him [Agent Thomas] a statement to stop them [the Louisiana officers] from killing me.” He also testified that he refused to sign this statement. After being taken to Jackson, Mississippi, appellant gave the Texas peace officers a statement after they told him, according to the appellant, “You’ll never have to come to Texas no more. All we need this information for is to close our records out,” and “We know all of this anyway, we know what you did anyway, because you’ve already told us what you did. We just need this, something to close our records out.”

The State, in its effort to establish the voluntariness of the confession, called the three Texas officers who went to Jackson and F.B.I. agent Thomas who was present during some of the events in Louisiana. No Louisiana officers were called.

In direct conflict with appellant’s denial of his presence on May 24, agent Thomas stated he accompanied the expedition on its search for the money throughout the day. Late that afternoon, according to Thomas, appellant “called me over and indicated that he wanted to talk to me alone.” He further testified:

“I remember Donald Smith telling me that he felt that he was in a lot of trouble because of the Mississippi bank robbery and that he wanted to help himself — he couldn’t find the money, he had misplaced it — and to help himself get out of this trouble, to show that he was in good faith, that he would tell me about some other things that he had done. When he told me this I told him that he was not required to do that, and I orally advised him, you know, of his pertinent legal rights, as per the F.B.I. policy.
“Q. And what did he tell you?
“A. Donald Smith told me initially about several local armed robberies that he had committed in and around New Orleans, and then he told me that he had robbed a bank in Lockhart, Texas, along with a friend of his named Louis Smith.”

According to Thomas, appellant’s first oral confession to the Texas robbery was at appellant’s invitation and on appellant’s initiative.

After verifying that there had been a bank robbery in Lockhart, Thomas interviewed appellant again on May 25 and took a detailed statement from him about the Texas robbery. He testified that at this-interview appellant again seemed eager to talk. Contradicting appellant’s claim that he refused to sign this statement, Thomas testified that it was never presented to appellant to sign, and that it was first typed out from his notes after he returned to his office.

Thomas also testified that although he did not examine appellant for evidence of physical abuse, his physical appearance was the same on the 24th and 25th as it was at his arrest on the 23rd, except that after the first day he was dressed in jail clothes.

With respect to the meeting with the Texas officers in Jackson, Mississippi, the State produced testimony from officers Davis, Brown and Gallat. During the initial warnings to appellant in Jackson, according to Davis, “I also remembered telling him, ‘Now, have you been made any threats or promises in regards to this?’, and he stated that he had not . . . ” Brown gave the following testimony on cross-examination:

“Q. Was he eager to talk to you?
“A. Seemed to be.
“Q. Really wanted to tell you about it?
“A. Well, I’d say he talked very voluntarily.
“Q. Very voluntarily?
“A. (No reply)
“Q. You’ve testified that he was very cooperative and wanted to talk to you.
“A. Yes, sir.”

On direct examination Gallat denied that there was any evidence at all that indicated to him that the statement was not voluntary. On cross-examination he gave the following testimony:

“Q. And you have no knowledge, do you, of anything that anyone, any law enforcement officer, might have said or done to Donald Elliot Smith that might have forced or induced or coerced him into making this statement?
“A. No, sir.
“Q. If anyone did anything like that, you don’t know anything about it?
“A. I don’t know anything about it, only what happened the day we were there.
“Q. And nothing happened then?
“A. And nothing happened that day, no.
“Q. Did he seem to be co-operative with you?
“A. Yes, sir.
“Q. Did he seem to be eager to talk to you?
“A. Yes, sir.
“Q. Really wanted to talk to you, didn’t he?
“A. Yes, sir.
“Q. Matter of fact, he wanted to tell you everything about the case?
“A. Yes, sir.”

The testimony of agent Thomas sufficiently contradicts Donald Smith’s claims of coercion and mistreatment in Louisiana. The last alleged beating of the appellant outside of Thomas’ presence occurred at 3:00 a. m. on the 24th. The confession, however, was not given until the 26th.

Thomas’ testimony that he observed the appellant on May 24 contradicted the appellant’s testimony that no F.B.I. agent was present on that day. He denied appellant’s alleged beatings and other coercive acts and statements during the day on May 24 and May 25 when Thomas was present. Thomas also contradicted the appellant’s testimony that he refused to sign a statement. According to the agent, the statement was never presented to the appellant. Furthermore, Thomas stated that the appellant was eager to talk about the bank robbery and initiated the conversation in regard to this subject.

Further support for the conclusion that appellant’s confession was not involuntary can be drawn from the evidence elicited from the Texas officers. Their testimony is sufficient to contradict appellant’s allegations that promises were made to him in Jackson.

In Farr v. State, supra, we stated:

“It is well settled that the ‘totality of the circumstances’ is to be examined to determine if a confession is voluntary. E. g. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Akridge v. State, Tex.Cr.App., 493 S.W.2d 928 (1973). In the case at bar, there was ‘no break in the stream of events’ from the initial coercion to the giving of the confession. In fact, the contrary is shown. Hernandez was present to continue the coercive influence at the time the confession was taken. From these facts, we are unable to conclude that the confession was voluntarily made as a matter of law.”

The totality of the circumstances surrounding the taking of Donald Smith’s confession both shows a significant break in the stream of events and supports our conclusion that it was voluntary. His first ground of error is overruled.

We now address the remaining grounds of error in the appeal of Donald Smith.

The second ground of error asserts that the trial court erred in denying appellant’s motion for mistrial made after the introduction of an extraneous offense into evidence. Appellant is complaining of the fact that his confession contained a statement that he had smoked some “grass.”

Appellant’s brief, however, does not direct us to the portion of the record where an objection was made to the introduction of this part of the confession. He has failed to preserve error for review. See Prine v. State, Tex.Cr.App., 509 S.W.2d 617.

Appellant’s next ground of error complains of the trial court’s denial of his motion for mistrial made after the State introduced evidence of a rape which occurred during the robbery. He also urges that the prosecutor’s reference to this rape during jury argument was improper, and claims the State’s action violated the court’s order granting a motion in limine as to such matters.

This contention is without merit. Normally, evidence of an extraneous offense is not admissible unless it meets the requirements developed by this Court in Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. Such requirements were met in the case at bar. Furthermore, objection to the evidence did not assert violation of the motion in limine nor did it complain of denial of an opportunity to prepare a defense to the rape charge.

The rape occurred during the commission of the bank robbery and was perpetrated by a party to the offense charged in the indictment. See, Waffer v. State, Tex.Cr.App., 500 S.W.2d 659. It was not error to admit evidence of the rape, and, once admitted, it was not error for the prosecutor to comment on such testimony during his jury argument. The third ground of error is overruled.

The fourth ground of error alleges that the trial court erred in denying appellant’s motion for discovery of all reports and other materials relating to the alleged rape. Appellant states that this motion was denied because the court ruled prior to trial that the State would not be allowed to introduce any evidence of the rape at trial. Appellant asserts that he was denied a fair trial once evidence of the rape was admitted.

The motion for discovery requested:

“The name and address of any and all Doctors, pathologists, chemists or technicians, who took part in any examination of the body of J_W_V_ or of any particles, organs, or fluids removed therefrom.”

The prosecutor informed the court that this information could not be inspected until it arrived from Washington. He also stated that it would not arrive until the rape case was set for trial.

Initially, we observe that the appellant, in his brief, complains that he was not allowed discovery of reports and all other materials relating to the alleged rape. The motion for discovery, however, did not request this information. The pre-trial motion does not contain the same request as that urged on appeal.

The record also indicates that the State was not in possession of any reports, materials, or names of persons conducting the examination at the time the motion for discovery was made.

The appellant has failed to establish that the reports and other material relating to the rape existed at the time the motion for discovery was entered. See, Spaulding v. State, Tex.Cr.App., 505 S.W.2d 919. We overrule the fourth ground of error.

Ground of error number five contends that the trial court erred in permitting the State to introduce hearsay testimony of Joe Davis that he had been told by one Joseph Dutrey that Donald Smith had given Dutrey some of the money taken in the robbery. The portion of the record cited by the appellant to substantiate this contention, however, contains the testimony of F.B.I. agent Thomas. We have, nevertheless, examined the page of the record complained of in regard to appellant’s claim. No hearsay testimony is contained thereon. Furthermore, the objection was sustained and no further relief was requested. The fifth ground of error is overruled.

Appellant’s final argument urges that the trial court committed error by allowing the prosecutor to violate the “best evidence rule.” Two State witnesses entered testimony concerning the serial numbers on the money taken during the bank robbery. Appellant claims that the “best evidence rule” was violated because the money was not introduced by the State.

We do not agree. One State witness, an employee of the bank, stated that she personally knew the serial numbers on the currency taken during the robbery. She then stated the numbers on the stolen money. Another witness for the State then testified in regard to the serial numbers on the currency recovered by the authorities. The numbers on the recovered currency matched those on the money taken in the robbery.

Both of these witnesses had first-hand knowledge of the serial numbers on the currency. It was not necessary for the State to introduce the actual money taken during the offense.

The “best evidence rule” pertains to writings or documents. One commentator has stated:

“The specific context in which it is generally agreed that best evidence principle is applicable today should be definitely stated and its limits clearly defined. The rule is: in proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” McCormick on Evidence, Sec. 230, p. 560 (2nd Ed. 1972).

The rule requiring the “best evidence” has no applicability to the circumstances of the case at bar. The final ground of error is overruled.

The judgment in Cause No. 51,371 (Louis Albert Smith) is reversed and the cause is remanded.

The judgment in Cause No. 51,370 (Donald Elliot Smith) is affirmed.

DOUGLAS, Judge,

concurring in part and dissenting in part.

The majority reverses the conviction of Louis Albert Smith on the ground that the confessions of the two should not have been admitted into evidence because the State did not refute his testimony that officers in Louisiana had beaten him and that he later confessed because of such alleged beatings. Neither appellant testified that the FBI, who took Louis Albert Smith’s confession, or the Texas Ranger, who took Donald Elliot Smith’s confession, beat them. Louis was arrested in New Orleans after his attorney called the FBI to surrender his client. A confession was not taken that day but several days later after his attorney called the FBI and asked that they take his statement, apparently because Louis wanted to clear up his eases. The two appellants were being held for several other robberies which had been committed in Mississippi and Louisiana. When Louis was questioned by the prosecutor about his lawyer who had been hired by his family, he refused to testify several times on the basis of the Fifth Amendment. During his trial in federal court in New Orleans, he withdrew his claim of a forced confession. The officers who allegedly beat the appellants were neither described nor named.

After Donald Smith had been arrested he was with officers in the woods in Louisiana trying to find the money taken from a Mississippi robbery that he had hidden there when, without questioning, he told an FBI agent about the robbery in Lockhart. He alleged that the Louisiana officers beat him before the confession was reduced to writing. He does not contend that the FBI or Ranger Joe Davis of the Texas Department of Public Safety mistreated him in any way.

None of the officers who were available to testify were accused of mistreatment, only those who were unnamed and unde-scribed in the other state. The voluntariness of the confession was not made an issue before the jury. The FBI agents who saw both appellants after the time of the alleged beatings saw no bruises or marks on either of them.

At the only hearing which was held before the judge when the confession of Donald was offered counsel stated:

“For the limited purpose of the hearing only, without making any admission as to the truth of any matters stated on the statement, we have no objection to its admission.”

The only purpose for the hearing before the judge was to get a determination of the voluntariness of the confession. However, assuming that enough evidence was not introduced by the State (there is much more than is set out herein) to overcome the testimony of appellants, and assuming the agreement to admit the confession is not enough to foreclose the issue, there was overwhelming evidence to make the admission of the confession harmless error beyond a reasonable doubt.

The indictments alleged that the money in the robbery was taken from Helen Franks. She, at the trial, identified both the appellants as the robbers. There was no lineup or picture display before the trial. She testified that the robbers were in the bank for some 25 or 26 minutes and it was well lighted and she had many opportunities to look at them.

The record reflects that at approximately 8:15 a. m. on the day in question appellants took Eddie Rangel, a custodian at the bank, with a gun at his head into the lobby and one of them said, “This is a holdup.” Donald shot at the camera with a shotgun. Louis moved all of the bookkeepers and tellers and other bank personnel into the lobby and threatened to kill everyone there and put the shotgun to Mr. Clark’s head and asked, “Who can get me the money out of the other vault?” He got the cashier and another woman and made them open the vault. He had them load the money in bags. He made one of the women lie down on the floor in the vault while he raped the other woman just next to her. He hit the woman he had raped on the head with a gun and closed the door to the inner vault. Then both appellants locked all of the employees of the bank in the vault, shot the lock off the back door taking some $86,000 and left.

Helen Franks was vice president and cashier of the Lockhart State Bank. In addition to the above, she stated that while they were in the inner vault Louis Smith made her and the other woman who was raped attempt to open the inner vault which had a dual combination which took two to open. The other woman had the first combination and Mrs. Franks had the other combination. Both tried their combinations but the door did not open. He cursed them. They tried a second time and it did not open. He threatened to kill them. The other woman said, “Please, sir, I got to have my glasses.” He let her go outside the vault to get her glasses. When she returned, and on the third try, the door opened. He handed them a yellow canvas bag to put the money in. He held his shotgun on them and Mrs. Franks could see a pistol in his belt. The other woman held the bag and Mrs. Franks loaded it with money. He found the drive-in cash boxes in the vault and put the cash from them in the sack. He then walked over and loaded some $400 in halves and quarters. He then set the bag by the door and asked what was in the next vault. He was not interested in it when he found that it contained abstracts.

The other woman in the vault had on a pants suit. He pulled her clothes down and said, “I want to see what a white Honky looks like.” He pulled her blouse open and buttons fell all over the floor. He pulled her bra down below her breasts and said, “On the floor, bitch!” She got on the floor “and he proceeded to rape Mrs._” While he was accomplishing this, he held the pistol to her head and when he finished he hit her on the head with the gun. She heard the two robbers putting the other employees in the outer vault and she heard three or possibly four shots.

Ida Piwetz, assistant vice president of the bank, testified that there were fourteen or fifteen employees of the bank present at the time of the robbery by the appellants. She identified appellants in the courtroom and described what kind of clothes each was wearing during the robbery. Donald Smith made the employees lie down on the floor. She heard the two women having trouble opening the vault and she next saw Louis Smith come out of the vault. He ordered all the other employees into the vault. Donald Smith went back into the teller area. As Louis was rounding up the group toward the vault, he grabbed Mrs. Piwetz’s left breast and played around with it. After they were all locked in the vault, they heard shots and the back door was shot out. These witnesses had more time than they wanted to become acquainted with appellants.

FBI Agent King recovered eleven hundred and eighty-five dollars from a safe deposit box of Donald Smith’s wife in New Orleans which was sent to FBI Agent Bruce Yarbrough in San Antonio. Agent Yarbrough testified that he investigated the bank robbery in Lockhart. Without detailing all of his testimony, he testified that he received the money that had been recovered by the agent in New Orleans. He looked through the money and found a $10.00 bill with the serial number K51590179A and produced it in court. Mrs. Franks was secretary of the board of directors of the bank and she testified that she paid the directors with new money from a bundle with the bills numbered serially with the largest number on top. The last director to be paid was with bill number K51590180A and the rest of the money in that bundle of new series of bills was in the cash vault on the day of the robbery. Therefore, one of the bills later found in the safe deposit box in New Orleans was in the vault when she was robbed.

Without considering the confession of either appellant, there is more than enough evidence to convict both appellants. Even if the confessions were not admissible under the proof offered, their introduction was harmless beyond a reasonable doubt. It is hard to conceive that a jury would not convict on this evidence. In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), in an opinion by Mr. Justice Douglas, the Supreme Court of the United States held that the introduction of the confession of co-defendants who did not testify and who were not subject to cross-examination was harmless error beyond a reasonable doubt because there was strong evidence against Harrington. He wrote:

“We, of course, do not know the jurors who sat. Our judgment must be based on our own reading of the record and what seems to us to have been the probable impact of the two confessions on the minds of an average jury.”

Under Harrington the introduction of each co-defendant’s confession against the other could be harmless error.

The majority’s holding that the introduction of a confession, if it has not been shown that it was legally taken, can never be harmless error and violates due process is contrary to the decision of the Supreme Court of the United States. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), held that error, if any, in admission of a post indictment, pre-trial confession obtained by a police officer who posed as a fellow prisoner confined in the cell with Milton was harmless beyond a reasonable doubt in view of the overwhelming evidence of his guilt. Chief Justice Burger, who wrote the opinion, cited Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which is relied upon by the majority. He did not hold that this violated due process. Chapman was reversed on an argument that he failed to testify. He also cited Harrington v. California, supra, to support his holding of harmless error. To hold that it can never be harmless error to introduce a confession without fully proving testimony of a defendant about coercion would be to pass on cases before they get to the Court. That language is not necessary to the majority holding and is dictum. A defendant could claim that he was beaten by officers in another state and the State could bring in ten or more to refute his testimony. The accused could then testify that none of those present beat him but others did. Under the majority opinion, the State would have to bring in all of the officers who were on the force at the time of the alleged beatings.

Because there was no proper objection and because error, if any, was harmless beyond a reasonable doubt, both judgments should be affirmed.

ROBERTS, Judge,

concurring in part and dissenting in part.

Our holdings in Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975), and Sherman v. State, 532 S.W.2d 634 (Tex.Cr.App.1976), stand for the proposition that where an accused alleges that his confession was coerced, someone who was present when the alleged coercive acts took place must take the stand and refute the allegations of the accused; that if none who were present are called by the State, their absence must be explained; and that if neither of the above occurs, the allegedly coerced confession is inadmissible as a matter of law.

In the cases at bar, FBI agent Thomas did not testify that he was present when the Louisiana officers allegedly beat appellant Donald Elliot Smith. He was not in the car when this was alleged to have occurred, nor was he at the jail where subsequent beatings were alleged to have occurred. The Louisiana officers who allegedly beat Donald Elliot Smith were not called to refute this appellant’s allegations, nor was their absence explained. Consequently, Donald Elliot Smith’s confession was inadmissible as a matter of law.

There is no difference in the fact situation between the two appellants’ cases as far as fulfilling the requirements of Farr and Sherman. Therefore, I dissent to the affirmance of Donald Elliot Smith’s conviction and concur in the reversal of Louis Albert Smith’s conviction only because I feel both convictions should be reversed. I do not imply by my concurrence that I am part and parcel of the majority’s illogical decision today.

The appellants were tried jointly. Both appellants’ primary contention was that the trial court abused its discretion in admitting their confessions into evidence because such confessions were shown to be involuntarily given and such showing was insufficiently rebutted by the State. Farr and Sherman dictate that this ground of error be sustained in both causes and that they both be reversed.

The issue is whether the confessions should have been admitted into evidence by the trial court. A lengthy Jackson v. Den- no hearing was held, during which each appellant took the stand for the limited purpose of challenging the voluntariness of his confession. Henson v. State, 452 S.W.2d 448 (Tex.Cr.App.1970).

Appellant Louis Albert Smith testified to numerous acts of physical abuse and coercion that he was allegedly subjected to by members of the New Orleans city police from the time he was initially apprehended in New Orleans and put in the New Orleans House of Detention until he was visited by the FBI agents who ultimately took his alleged voluntary confession. He further testified that he was told by the New Orleans police officers that he would have to plead guilty and that he was going to keep getting the “same treatment” until he did.

The State called FBI agents P. M. King and B. S. Thomas. They testified that the appellant Louis Albert Smith appeared to be proceeding voluntarily in the confessions he gave them on June 5th and June 6th, 1973. However, they testified that they had no personal knowledge of what, if anything, was done to the appellant between the date of his arrest on May 29, 1973, and June 5, 1973, the date the first statement was taken from the appellant.

Appellant Louis Albert Smith also testified to alleged acts of physical coercion by the New Orleans police during the period between the statements he gave the FBI agents on June 5, 1973, and June 6, 1973, respectively.

None of the New Orleans police officers were called to refute appellant’s testimony concerning the alleged acts of physical coercion. Nor was their absence explained. No one present at the New Orleans House of Detention between May 29, 1973, and June 6, 1973, testified in rebuttal to appellant’s claim of physical coercion.

Appellant Donald Elliot Smith testified that he was arrested near Slidell, Louisiana by officers of the Saint Tammany Parrish, Louisiana, Sheriff’s Department. After his arrest, Smith was taken to the Saint Tammany Parrish jail. After spending approximately two days there, he was sent to Jackson, Mississippi, where he was interviewed by Texas Ranger Joe Davis. Appellant gave Ranger Davis a written confession at that time.

Appellant Donald Elliot Smith also testified to numerous acts of physical violence and coercion allegedly perpetrated upon him by officers of the Saint Tammany Sheriff’s Department while being held at the jail. These acts of coercion allegedly occurred from the time of his arrest until the time he was transported to Jackson, Mississippi, where he met with Ranger Davis. Specifically, appellant alleged that in the automobile on the way to the jail the officers riding in the automobile with him hit him, kicked him and bent his fingers back while telling him, “You’re going to talk; we’re going to get everything from you; we’re going to know everything you did; you’re going to tell us everything.” Agent Thomas did not testify that he was in the automobile when this occurred. No one present in the automobile at that time was called. The absence of such witnesses was not explained. Donald Elliot Smith alleged that he was also beaten at the jail. Agent Thomas did not testify that he was at the jail when this occurred. No one from the jail was called, nor was their absence explained. If we accept appellant Donald Elliot Smith’s allegations as true, and we must under Farr, supra, and Sherman, supra, it is easy to see why FBI agent Thomas was of the opinion that appellant Donald Elliot Smith’s first oral confession to him was at the appellant’s invitation and on appellant’s initiative and why he also felt that the appellant seemed eager to talk at the subsequent interview.

Ranger Davis testified that he warned appellant Donald Elliot Smith of his constitutional rights and that after doing so appellant indicated that he still wanted to make a statement. Davis further testified that appellant appeared to be proceeding voluntarily, but had no knowledge of what, if anything, was done to the appellant by other law enforcement officers connected with this case.

The State also called Ed Brown and Ernest Gallat, deputy sheriffs from Caldwell County, .Texas. They testified that they accompanied Ranger Davis to Jackson, Mississippi, to take the confession of appellant Donald Elliot Smith. They corroborated Ranger Davis’ testimony that appellant had been warned of his constitutional rights and appeared to be proceeding voluntarily. However, they also testified that they lacked personal knowledge of what, if anything, was done to the appellant by the law enforcement officers who held the appellant prior to their meeting with him in Jackson, Mississippi.

None of the officers of the Saint Tammany Sheriff’s Department who allegedly physically coerced appellant Donald Elliot Smith into ultimately giving his confession, nor anyone present at the Saint Tammany Parrish jail while appellant was being held there, were called to testify in rebuttal to appellant Donald Elliot Smith’s allegations. Nor was their absence explained.

In Farr, supra, the interrogating officer testified that he read the defendant his rights, which were willingly waived, and then proceeded to take his confession. The officer further testified that he observed the defendant’s demeanor and the defendant did not appear agitated. However, the officer admitted that he had no personal knowledge of anything which took place before the defendant was brought to the station for interrogation. This left uncon-tradicted the defendant’s prior allegations of physical coercion and threats.

We held in Farr that: “It has long been the law of this State that whenever the testimony of the accused as to alleged coercive acts is undisputed, then as a matter of law the confession is inadmissible.” Id., at 880. We further stated that: “Had the police officers testified and denied any coercion or someone present at the incident denied any use of force, thus contradicting appellant’s testimony, the trial judge as trier of fact could have determined the confession to be voluntary.” Id., n. 4. (Emphasis added).

In Sherman, supra, the defendant testified that he signed his confession only because one of the interrogating officers had told him he would receive the death penalty if he didn’t. This officer was not called to refute such allegations and his absence was wholly unexplained. Other officers who did testify could not deny the defendant’s allegations because there was no showing that they were present when the statements were allegedly made.

We followed Farr, and held that the State failed to fulfill its burden of showing that the defendant’s confession was voluntary. However, we further stated that:

“It should be understood that if the State had presented a reasonable explanation of Cochran’s (the interrogating officer) failure to testify, such as his death or their inability to locate him, the trial court would have been free to disbelieve appellant’s testimony. When the State neither placed Cochran on the stand nor explained his absence, the obvious inference is that he did not testify because he could not deny appellant’s allegations. (Citations) No such inference could be made, however, if there were an explanation of the absence of the witness.” Sherman, at 636, n. 2.

In the cases at bar, the State has not fulfilled its burden of showing that either of appellants’ confessions were voluntarily given. Consequently, the trial court abused its discretion in admitting them into evidence.

Although I would reverse both appellants’ convictions because of this, I am not unmindful of other|; evidence in the record which would support their convictions notwithstanding the erroneous admission of their confessions. However, the Supreme Court of the United States has mandated that:

“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, (citation), and even though there is ample evidence aside from the confession to support the conviction. (Citations).” Jackson, supra, 378 U.S. at 376, 84 S.Ct. at 1780.

This rule has been followed by lower federal courts and courts of our sister states on occasions too numerous for citation. I can only conclude that it must be regarded as a rule so basic to a fair trial that its infraction can never be treated as harmless error. Chapman v. California, 386 U.S. 18, 23, n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Payne v. Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).

The judgments of the trial court should both be reversed and both causes should be remanded.

      . In this regard I note that the jury was instructed not to consider the confessions unless they were found to be voluntary beyond a reasonable doubt. This instruction should not have been given, since there was insufficient evidence to support it: The only testimony on the issue of voluntariness came from the law enforcement agents who took the confessions and who were not alleged to have engaged in any of the alleged acts of coercion. See, Sher

        man v. State, supra, and Farr v. State, supra. The appellants did not testify, nor did they put before the jury any evidence to raise the issue of the voluntariness of their confessions.
      Thus, there was no evidence of probative value before the jury from which it could find that the confessions were or were not voluntary. Consequently, the case is in the same position as if no charge had been given, and this Court is “limited to the admissibility of the confession(s) as a matter of law.” Morris v. State, 488 S.W.2d 768, 772 (Tex.Cr.App.1973). Accord, Taylor v. State, 498 S.W.2d 346 (Tex. Cr.App.1973).
      However, I emphasize that this reasoning does not apply in those situations where the trial court exercises its discretion under Art.
      38.22, Vernon’s Ann.C.C.P., and admits evidence before the jury on the fact issue of volun-tariness. In such a case the accused does not waive the right to have the jury’s determination on voluntariness supported by sufficient evidence simply because he fails to take the stand and testify on the voluntariness of his confession. The failure of the accused to testify before the jury on the issue of voluntariness may be based upon wholly valid reasons other than the fact that he has no evidence to present. See, Jackson v. Denno, 378 U.S. 368, • 389, n. 16, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . This conclusion only applies, however, to the type of confession we are dealing with in the case at bar — the “coerced” confession. I note that there is a difference between the genus of unlawfully obtained confessions and the species of unlawfully “coerced” confessions. Smith v. Estelle, 527 F.2d 430, 431 (5th Cir. 1976). While the former may be subjected to the harmless error rule, Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), the latter may not. Jackson, supra; Chapman, supra; Payne, supra; Smith (and cases there cited), supra.


author: ODOM, Judge. DOUGLAS, Judge, PHILLIPS, J.,

text:
    Jimmie Lee WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 52335.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearing Denied March 9, 1977.

      Dan J. Anderson, Richardson, court appointed on appeal only, for appellant.
    Henry Wade, Dist. Atty., Gary M. Love, Stephen P. Tokoly and Braden W. Sparks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder under the former Penal Code; punishment was assessed at life.

We find unassigned error that must be considered in the interest of justice. Art. 40.09(13), V.A.C.C.P.

The charge to the jury utterly failed to apply the law to the facts of the case. In Harris v. State, Tex.Cr.App., 522 S.W.2d 199 and Perez v. State, Tex.Cr.App., 537 S.W.2d 455, we held such error to be fundamental. We reaffirm those holdings and take this opportunity to further elaborate upon the reasons why this is the law.

There was no objection to the charge for its failure to apply the law to the facts. The Code of Criminal Procedure provides that in such situations:

“. . . the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” Art. 36.19, V.A.C.C.P.

Applying this provision to the failure of the trial court to apply the law to the facts of the case in its charge to the jury, we find that this error was calculated to injure the "rights- of appellant and that he was deprived of a fair and impartial trial for the following reasons.

The law must come from the court, the facts must be decided by the jury, and the charge, to instruct the jury properly, must apply the law to the facts raised by the evidence. It is not sufficient for the jury to receive an abstract instruction on the law and then to render a verdict according to a general conclusion on whether the law has been violated. The State must prove its ease beyond a reasonable doubt and must prove each element of the offense charged. This is the very basis of the case. The prosecutor as advocate for the State’s position may emphasize some elements in his argument and defense counsel as advocate for the accused may emphasize others in his argument, but the court is the only neutral source to which the jury may look for an unbiased application of the law to the facts of the case. An abstract charge does not inform the jury of what facts, if found by it, would constitute proof of the elements of the offense.

A juror is not allowed to impeach his own verdict, and, although jury misconduct may be discovered and proven only by one in a position to know the facts, those with knowledge are properly privileged to decline to discuss the deliberations with anyone. This confidential character of the jury deliberation process, designed to insure the free exchange of viewpoints during that process, is essential to the jury system of criminal justice. However, this confidential character also requires that the members of the jury, before deliberations, receive proper instructions regarding the performance of their civic duty. To allow the jury to receive an application of the law to the facts only from the partisan advocates without a neutral and unbiased instruction on that matter in the charge is to risk the degeneration of trial by jury to a debating contest, where the persuasiveness of competing applications of the law to the facts determines guilt or innocence. There should be but one controlling application of the law to the facts, and that application should come from the court. Its absence impairs the right to trial by jury and, therefore, by definition, is “calculated to injure the rights of defendant,” (Art. 36.19, supra) to a trial by jury.

It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion. A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those fact issues. A charge that leaves application of the law to the facts solely in the hands of the partisan advocates does not guard against the confusion that such partisan claims inspire. Because a charge should affirmatively lead and dispel confusion, and because a charge that does not apply the law to the facts fails to give such guidance, error of this character should remain the subject of a per se rule. Furthermore, the per se rule of Harris and Perez, both supra, is not only fully justified, but also has its ease of understandability and application to commend itself for a permanent place in our jurisprudence.

Finding fundamental reversible error in the court’s charge to the jury, we reverse the judgment and remand the cause.

DOUGLAS, Judge,

dissenting.

The majority reverses this conviction on the ground that there was fundamental error in the court’s charge. There was no objection to the court’s charge before the trial court or before this Court. No harm is shown to the appellant. There is no showing that he was misled in any way by the court’s charge or that the jury did not know what he was charged with.

The indictment charges in substance that “Jimmie Lee Williams, hereinafter styled the Defendant, on or about the 18th day of September in the year of our Lord One Thousand Nine Hundred and seventy-two^ in the County and State aforesaid, did unlawfully, and voluntarily with malice aforethought kill, Charley D. Sellars, by shooting him with a gun. . .

Appellant was hired to kill Charley D. Sellars.

At approximately 11:30 on the morning of September 18, 1972, Sellars, the deceased, was found dead in his pickup truck less than one mile from his place of employment at the National Aerospace Company in Mesquite. Death resulted from three gunshot wounds from a .38 caliber pistol fired at close range. The evidence showed that there was an agreement between Andrew Jacobson, owner of New Delaware Leasing Company, which leased tractors and trailers to the National Aerospace Company, and appellant. Jacobson offered to pay appellant $1,000 to kill Sellars and personally furnished the murder weapon and the ammunition. After the murder appellant told his brother, James Archie Williams, and Joseph Goodson that Jacobson had offered him $1,000 to kill Sellars and that he in fact did kill him. The evidence is more than sufficient to show murder.

There is no question about it. The indictment was for murder; the evidence proved murder. There is no indication that any other crime was charged or submitted to the jury.

The court’s charge to the jury, which the majority of this Court, on its own, says harmed the appellant (even though there has been no such claim until this day), is sufficient to inform the jury that the appellant was indicted for murder, that it had to find facts showing him to be guilty of murder.

The charge, omitting some formal parts, reads as follows:

“CHARGE OF THE COURT
“MEMBERS OF THE JURY:
“In this case the defendant, Jimmie Lee Williams, stands charged by indictment with the murder of Charlie D. Sel-lars, by shooting him with a gun, alleged to have occurred in the County of Dallas and State of Texas on or about the 18th day of September, A.D., 1972. To this charge the defendant has pleaded ‘Not Guilty.’
“I give you the law applicable to this case as follows:
“I
“Whoever shall voluntarily kill any person within this State shall be guilty of murder. Murder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or which excuse or justify the killing.
“II
“ ‘Malice aforethought’ is the voluntary and intentional doing of an unlawful act by one of sound memory and discretion with the purpose, means and ability to accomplish the reasonable and probable consequences of the act. ‘Malice aforethought’ includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from the acts committed or words spoken. You are charged in connection with the definition of malice, as heretofore given you in the charge of the Court, that no definite space of time need necessarily intervene between the formed design to kill and the killing; a single moment of time being sufficient.
“Ill
“A conviction cannot be had upon the testimony of an accomplice, unless the jury first believe that the accomplice’s evidence is true and it shows the defendant is guilty of the offense charged against him; and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged. The corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.
“An ‘accomplice,’ as used herein, means any one connected with the crime charged, either as a principal, accomplice or accessory. It includes any person or persons who are connected with the crime by an unlawful act or omission on their part, transpiring either before, at the time of, or after the commission of the crime and whether or not they were present and participated in the commission of the crime.
“IV
“Now if you believe from the evidence beyond a reasonable doubt that an offense was committed as charged, and you further believe from the evidence that the witness, Joseph Goodson, was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions then you cannot convict the defendant upon the testimony of the said Joseph Goodson unless you first believe that his testimony is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the case, outside of the evidence of the said Joseph Goodson, tending to connect the defendant with the commission of the offense charged in the indictment, and such corroboration is not sufficient if it merely shows the commission of an offense.
“You are further instructed that an accomplice witness maybe corroborated by either direct or circumstantial evidence or both.”
The verdict of the jury as to guilt is:
“We, the Jury, find the Defendant guilty of the offense of murder with malice aforethought, as charged in the indictment.”
The verdict as to the punishment is as follows:
“We, the Jury, having found the Defendant guilty of murder with malice aforethought set his punishment at confinement in the Texas Department of Corrections for life.”

Even though the court could have applied the law to the facts more specifically, the failure to do so does not constitute reversible error. Article 36.19, V.A.C.C.P., concerning errors in the court’s charge provides, in part:

“. . . The judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . ”

The Legislature has provided under this statute that the error in this case would be harmless. Appellant and the jury knew that he was charged by indictment with murder. The proof showed that he was guilty of murder. The charge referred to the indictment as murder. The court required the jury to find him guilty of committing murder as charged in the indictment as defined in the court’s charge.

The majority should follow the mandate of the Legislature. There is no indication that appellant did not receive a fair trial. There is no complaint by him or his counsel that he did not receive a fair trial because of the court’s charge. There is seldom an error-free trial and it is the duty of this Court to pass upon errors to see if they are reversible, not to reverse just because there might be some immaterial error during the trial. Trial judges should be given an opportunity to make corrections in the charge if a defendant thinks that he is being harmed or that the jury might be misled by the charges submitted. See the dissenting opinion in Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976).

If the majority will indicate or even hint how the jury might have been misled or how appellant might have been harmed in any way, this opinion will be withdrawn.

No reversible error has been shown. The judgment should not be reversed.

PHILLIPS, J.,

joins in this dissent.

      . The jury charge recited the allegations of the indictment and gave abstract instructions on the law of murder, malice aforethought and accomplice witness testimony, and then charged:
      “Now if you believe from the evidence beyond a reasonable doubt that an offense was committed as charged, [note that the law is not applied to the facts of the case] and you further believe from the evidence that the witness, Joseph Goodson, was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions then you cannot convict the defendant upon the testimony of the said Joseph Goodson unless you first believe that his testimony is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the case, outside of the evidence of the said Joseph Goodson, tending to connect the defendant with the commission of the offense charged in the indictment, and such corroboration is not sufficient if it merely shows the commission of an offense.”
      The remainder of the charge consisted of instructions that the indictment is no evidence of guilt, to avoid injection of personal knowledge, on selection of a foreman, that the jury is the exclusive judge of facts to be proven and of matters of credibility and weight of the evidence, of appellant’s privilege not to testify, on the burden of proof, and on the use of verdict forms.