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    Eleanor Jackson SAUNDERS, Appellant, v. The STATE of Texas, Appellee. William R. SPENCER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55244, 55245.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 25, 1978.
    Rehearing En Banc Denied Nov. 22, 1978.

      Zbranek & Hight, Liberty, for appellants.
    Carol S. Vance, Dist. Atty., James C. Brough and John B. Holmes, Jr., Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeals are taken from convictions for criminal solicitation of capital murder. The jury assessed punishment at 30 years for each appellant.

The nature of appellants’ contentions requires a review of the evidence.

For approximately three years, appellant William Spencer had been involved in divorce litigation with his wife Helene in Chambers County. Spencer had been a rancher and rice farmer, but at the time of his arrest was working on an oil drilling rig. The other appellant, Eleanor Saunders, owned a washateria in Winnie. The record indicates a romantic involvement between the appellants.

In February, 1975, Saunders met with Lee Ashworth, an ex-convict and former resident of Winnie. At that time a later meeting was arranged between Ashworth and both appellants in Beaumont. Ash-worth testified that at this meeting Spencer sought to employ him to kill his wife Helene. Both appellants testified that it was Ashworth that suggested they hire someone to kill Helene. Ashworth, a police informer, called Mike Taylor, a Bureau of Alcohol, Tobacco and Firearms (A.T.F.) agent for the Treasury Department in Houston. Taylor got in touch with Dan Williams, an officer of the Department of Public Safety Intelligence Division, also stationed in Houston.

On February 28, 1975, Ashworth, Taylor, and Williams went to Winnie and met with Saunders at her washateria. The subjects of killing Helene and burning down a competing washateria were discussed and a later meeting suggested.

Williams again contacted Saunders and arranged for Saunders and Spencer to meet with Taylor and himself at a motel in Houston on March 6,1975. This meeting and all subsequent meetings were tape recorded by the officers. The foursome met in a restaurant parking lot on March 10, 1975, and $2,500 was paid to the officers to make Helene “disappear.”

On March 19, 1975, the last meeting was held on the same parking lot. Another $2,500 was paid and Williams and Taylor showed personal items belonging to Helene as proof that the deed had been done. These items had been obtained from Helene, who was in fact under protective guard in a Houston motel. As the appellants left the officers’ car, they were arrested and a pistol seized from Saunders’ handbag.

The appellants claimed that due to the past conduct of Helene they thought Ash-worth, Taylor, and Williams had been hired by Helene to perpetrate a blackmail scheme. The appellants testified that at no time did they believe that they were dealing with real killers for hire, but merely went along to turn the scheme to their benefit.

In the interest of clarity, a more extensive discussion of these facts will be set out in conjunction with the respective grounds of error.

Appellants were represented by the same retained counsel, both at trial and on appeal. The grounds of error in both cases are identical with one exception. Appellant Spencer alone complains of the trial court’s failure to grant his motion for severance.

Appellant Spencer maintains that Art. 36.09 V.A.C.C.P., mandated the severance of his cause from that of Saunders. Article 36.09, supra, provides that when:

“Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.” [Emphasis added.]

When a co-defendant has a prior admissible conviction and the defendant has no prior admissible conviction, this Court has held that severance is mandatory. Robinson v. State, Tex.Cr.App., 449 S.W.2d 239; Calverley v. State, Tex.Cr.App., 511 S.W.2d 60. The defendant must allege these prerequisites in a motion and offer proof, however, to bring himself within this provision. Robinson v. State, supra.

The State stipulated that Saunders had been convicted of carrying a pistol in 1972, and that Spencer had no prior admissible convictions. The State did not, however, stipulate that Saunders’ conviction would be admissible, nor did the appellant show that it was. Thus, the appellant failed to prove the prerequisites necessary to require a severance. Further, by agreement, the conviction was not used for any purpose in the trial. Even assuming that the conviction was on its face admissible, refusal to sever would not have resulted in injury to Spencer. Rivello v. State, Tex.Cr.App., 476 S.W.2d 299.

Appellants contend that they were denied their Sixth Amendment right to eonfrontation by the trial court’s refusal to require the prosecution witness Ashworth to reveal his “location” during the year between their arrest and trial. The evidence showed that this refusal was to protect Ashworth from the possible reprisals arising from his activities as an informer in unrelated cases. Counsel for the appellants argued that it was necessary to at least know the town in which the witness was hiding in order to properly cross-examine him on his conduct during the year since appellants’ arrest.

On direct examination, Ashworth admitted that he had previously been in the penitentiary in New Mexico and in a county jail in Texas. On cross-examination, the witness further admitted that he had been in the New Mexico penitentiary three times and an Army disciplinary barracks once. He related that he had been convicted of forgery twice and disciplined by the Army for refusal to obey a direct order. It was also shown that he was involved in prior dope deals and had witnessed a murder that he did not report. He stated that since his last release from the penitentiary he had received two years in county jail for robbery and a ten-year probated sentence for burglary. He was on probation at the time of the trial.

Ashworth generally admitted being a thief and that he had made a living at various times by stealing or gambling on pool games. It was shown that since the appellants’ arrest Ashworth had been paid $1,500 by the federal government for relocation. He also admitted that he had been arrested for being drunk since his relocation. Defense counsel was given a rap sheet on Ashworth and given leave to recall him to cross-examine on it.

In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed.2d 624 (1931), the Supreme Court held that the defendant’s Sixth Amendment right to confrontation was denied when, with the trial court’s approval, the prosecution refused to disclose the address of a witness. The Supreme Court stated that:

“It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. ... To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.” 282 U.S. at 692, 51 S.Ct. at 219.

This holding was made applicable to state prosecutions in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968).

This Court has held that in order to be entitled to get a witness’ address when disclosure would threaten the safety of the witness or the witness’ family, the defendant must show a particularized need. Richardson v. State, Tex.Cr.App., 508 S.W.2d 380; Satterwhite v. State, 499 S.W.2d 314; Watson v. State, Tex.Cr.App., 488 S.W.2d 816; Winkle v. State, Tex.Cr.App., 488 S.W.2d 798; Salas v. State, Tex.Cr.App., 481 S.W.2d 825; Baldwin v. State, Tex.Cr.App., 478 S.W.2d 476. In each of these cases, however, the defendant sought the residential street address, rather than the general location or town as sought in the present case.

In both Alford and Smith, supra, the Supreme Court states that refusal to disclose the witness’ address prevents the defendant from placing “. . . the witness in his proper setting and put the weight of his testimony and credibility to a test . . .” 282 U.S. at 692, 51 S.Ct. at 219, 390 U.S. at 132, 88 S.Ct. at 750. It is this right to an effective cross-examination generally, not the address of the witness specifically, to which these cases hold the defendant is entitled.

The scope of cross-examination is within the sound discretion of the trial court. Alford v. United States, supra; Smith v. Illinois, supra; Winkle v. State, supra. The trial judge may properly limit the subject of cross-examination to exclude inquiry as to the town in which the witness resides so long as the defendant is not denied a thorough and effective cross-examination.

It is clear in the present case that defense counsel destroyed any credibility that Ashworth may have exhibited on direct examination. The limitation as to asking what town Ashworth lived in in order to protect his safety did not deny the appellants “the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test.” We hold that appellants were not denied their Sixth Amendment right to confrontation.

Appellants also challenge the admission into evidence of the three tape recordings made of the appellants’ meetings with Officers Williams and Taylor. The major portion of these tapes was played to the jury either during the prosecution’s case-in-chief or on rebuttal. The summaries below do not include each detail of the lengthy conversations, but only highlight the most relevant facts.

The first tape recorded a conversation between the appellants and the officers that took place in a Houston motel room an March 6, 1975. It is apparent that the appellants did not know that Williams and Taylor were police officers at this time.

The conversation started with Williams asking what it was the appellants wanted done. Saunders was the first to reply, requesting that the officers destroy a competing washateria. The discussion included information necessary to carry out the job, such as location of the washateria, habits of the owners, and the type of building. Saunders was at first indifferent as to whether the owners would also be killed, but later stated that they should be spared. This change of heart was after she was told the price would be higher if the job included the death of the owners.

The conversation then turned to Ash-worth. The appellants stated that they did not want him involved any further. The officers assured the appellants that he would be kept out of the dealings.

Williams asked if there was anything else the appellants wanted done. Spencer replied that there were several other things he wanted done, finally, specifying the murder of his wife. The discussion then went to how he wanted his wife killed and details about her personal habits. His desire to have her killed appeared to be based on the protracted and bitter divorce proceedings. The discussion finally centered on whether to stage a car accident or to simply have her “disappear.” Details discussed included disposition of jewelry on her person when she was killed, her social life, the kind of car she drove, and her place of employment. Saunders then related two incidents of assault by Helene on her daughter and herself.

It was then agreed that the “package price” for both the destruction of the was-hateria and the murder would be $5,000. This was to be paid $2,500 in advance and $2,500 after the murder was completed.-

Spencer stated that he had paid for a “bump job” before but had gotten no results. It was never clearly established who was to be killed in that transaction. There was then a discussion of the possibility of the officers retaliating against the person hired in the prior “bump job.” Saunders drew a map depicting the competing wash-ateria and directions were given on how to get to Spencer’s wife’s house and place of employment.

The foursome also discussed how the officers were to prove that Helene had been killed, and a picture of Helene was given to them. The parking lot of a nearby restaurant was agreed upon as the next meeting place.

The second tape was made on March 10, 1975, on the parking lot of a Houston restaurant. This meeting was in the car of Williams and Taylor.

The conversation revealed that the appellants had decided that it would be better if Helene “disappeared.” Spencer felt that her apparent abandonment of their child would put him in a better position in the divorce proceedings. Another picture of Helene and a set of keys to her car were given to the officers. Details necessary to accomplish both the arson and the murder were discussed. Possible future action in the prior “bump” job was again one of the topics. The first payment of $2,500 was made to the officers. A later meeting for final payment upon proof of the murder was arranged.

The same restaurant parking lot was the scene of the final meeting on March 19, 1975. Again, the conversation was recorded while the foursome sat in the officers’ car. It was at this meeting that the officers told the appellants that Helene had been killed. Spencer’s reaction was to inquire as to what jewelry had been on Helene at the time of her death. He wanted to know in order to recover any remaining valuables from his wife’s relatives. The appellants told the officers that they had intended to allow them to keep any jewelry as a bonus. After first cautioning the officers that it was not a gun, Saunders removed an envelope from under her blouse and gave it to Spencer, who gave it to the officers. This envelope contained the final payment of $2,500.

Both the washateria job and the identity of the person paid for the prior “bump job” were also discussed. One of Saunders’ statements sums up the tenor of the conversation in this last tape. Toward the end of this conversation, after the officers had told of the supposed death of Helene, Saunders said:

“Well, I’m just really happy, myself, and proud. And well, when you get around to it, you know, we can do the other one in Winnie. No big hurry, you know, when you get the chance.”

The appellants were arrested after they left the officers’ car as they entered the restaurant to eat.

Appellants allege that these tapes were obtained in violation of their Fourth Amendment rights, relying on Katz v. United States, 389 U.S. 347, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1967), and United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1970).

In Katz v. United States, supra, the Supreme Court determined that a listening device attached to a phone booth without the consent of either party to the conversation was a violation of the defendant’s Fourth Amendment rights. United States v. White, supra, involved testimony of police officers who had listened to a conversation between the defendant and an informer sent via a radio transmitter carried by that informant. The Supreme Court in White held that this constituted no Fourth Amendment violation. Thus, neither of these cases supports the appellants’ contentions.

More in line with the issue presented is Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), and Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). In Lopez, as in the present case, a government agent recorded conversations with the defendant which were later offered into evidence. In Hoff a, the Court held that the Fourth Amendment does not protect the defendant’s “. misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” 385 U.S. 302, 87 S.Ct. 413. In both these cases, no constitutional violation was found.

This Court, in Thrush v. State, Tex.Cr.App., 515 S.W.2d 122, held that tape recordings obtained by police of conversations between the defendant and an accomplice, when made with the consent of the accomplice, did not violate the defendant’s Fourth Amendment rights. The Court interpreted the Lopez, Hoffa, Katz, and White line of cases as sanctioning the tactics employed in Thrush. 515 S.W.2d at 125.

We hold that the officers’ recording of their conversations with the appellants violated no constitutional rights.

Appellants also maintain that the use of the tapes at the trial constituted improper bolstering of the officers’ testimony because the substance of the tapes was never controverted nor contradicted. Appellants urge that in Lewis v. State, Tex.Cr.App., 529 S.W.2d 533, this Court held that such use was improper bolstering. A close inspection of Lewis requires the opposite conclusion.

In Lewis v. State, supra, this Court reversed a conspiracy conviction for improper jury argument by the prosecutor. The Court, in anticipation of a retrial of that cause, also noted that admission of tapes of conversations between the defendant and a police agent was error because of the extraneous offenses they contained. 529 S.W.2d at 534. In a footnote referring to the defendant’s apparent argument of improper bolstering, the Court stated that a written transcript of the tapes made available to the jury was improper bolstering of the police agent’s testimony. 529 S.W.2d at 535. It seems that technical imperfections had put the exact content of segments of the tape into dispute, thus the written transcript was the State’s unsworn version of the conversation. In contrast, the tapes in the present case were played to the jury, and the jury allowed to draw their own conclusions as to the content of the tapes.

More analogous to the present case than Lewis is Thrush v. State, Tex.Cr.App., 515 S.W.2d 122. In Thrush, the tape recordings were used to corroborate an accomplice witness’ testimony. In the present case, corroboration of the officers’ testimony was required under V.T.C.A. Penal Code, Sec. 15.03(b).

Our holding that the tape recordings are admissible is not dependent, however, upon such narrow grounds. “It is now almost universally held that sound recordings relative to otherwise competent evidence are admissible provided a proper foundation has been laid for their admission.” 2 C. McCormick & R. Ray, Texas Evidence, Sec. 1465.5, “Sound Recordings” (2d ed. 1956).

Appellants further allege that “the trial court erred in admitting into evidence the tape recordings of the conversations between the defendants and the police officers for the reason that this made the jurors witnesses to a portion of the transaction and as such disqualified them to act as jurors.” This contention is patently without merit and does not require discussion.

Appellants also contend that the trial court erred in admitting the portions of the tapes relating to the discussion of extraneous offenses into evidence. The trial court overruled defense counsel’s objections after reviewing the tapes and allowed the State to introduce most of the extraneous offenses during either its case-in-chief or on rebuttal.

The extraneous offenses complained of include, among others, the prior kill for hire scheme and the plot to destroy a washateria competing with Saunders’ business.

As a general rule, evidence of pri- or criminal conduct that is collateral to the charge on which the defendant is being tried is inadmissible. Lewis v. State, Tex.Cr.App., 529 S.W.2d 533; Thrush v. State, Tex.Cr.App., 515 S.W.2d 122. This Court, however, has set out the exceptions to this rule. Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97; Smith v. State, Tex.Cr.App., 547 S.W.2d 6; King v. State, Tex.Cr.App., 553 S.W.2d 105. In Albrecht, supra, the Court held that extraneous offenses could be admitted:

“(1) To show the context in which the criminal act occurred — what has been termed the ‘res gestae’ — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. . . . ”

The extraneous offenses included in the tapes revealed both the tenor and setting in which the conversations between the appellants and the officers took place. This evidence showed the context in which the criminal activity occurred. Thus, the extraneous offenses complained of were admissible under the exception contained in Albrecht, set out above. See Calverley v. State, Tex.Cr.App., 511 S.W.2d 60; Burns v. State, Tex.Cr.App., 556 S.W.2d 270.

Appellants also contend that Art. 38.24, V.A.C.C.P., entitled them to enter evidence of various incidents involving Spencer’s wife. The appellants’ theory is that this evidence would show Helene to be a vicious and mean person capable of devising a plot to blackmail her husband in order to receive all his property in the divorce. This, the appellants maintain, would tend to explain why they felt that Williams and Taylor had been hired by Helene to perpetrate such a scheme. In turn, the appellants argue, these facts would render reasonable the appellants’ decision to go along with the plot in order to make Helene believe she had the upper hand in the divorce, thus causing her to proceed in the divorce without further delay. Spencer testified that a speedy conclusion to the protracted divorce proceeding is what he wanted and why he went along with the plot.

Article 38.24, V.A.C.C.P., provides that: “When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

In Roman v. State, Tex.Cr.App., 503 S.W.2d 252, this Court stated that:

“The purpose of this provision [Art. 38.24] is to reduce the possibility of the fact finder receiving a false impression from hearing the evidence of only a part of the conversation, writing, act or declaration. The theory behind the rule is that by allowing the jury to hear the rest of the conversation on the same subject the whole picture will be filled out, removing any misleading effect which may have occurred from introduction of only a portion of the conversation. Obviously this purpose is achieved by receipt of the balance of the conversation on the same subject. But to permit under this rule the introduction of other portions of such a conversation wholly unrelated to the matter initially gone into cannot contribute to achievement of the purpose of the rule. Consequently, it is improper to rely upon this rule as authority for the introduction of such unrelated portions.”

The provisions of Art. 38.24, supra, have been held to allow further inquiry when one party introduced an isolated part of an oral confession, or of a witness’ statement. Cerda v. State, 557 S.W.2d 954; Westbrook v. State, Tex.Cr.App., 522 S.W.2d 912. This Court has also found that the use of part of a conversation, a deposition, or a person’s military record entitles the opposing counsel to enter evidence from other parts. Crain v. State, Tex.Cr.App., 394 S.W.2d 165; Johnson v. State, Tex.Cr.App., 378 S.W.2d 76; Blum v. State, 166 Tex.Cr.R. 541, 317 S.W.2d 931, cert. den. 359 U.S. 952, 79 S.Ct. 738, 3 L.Ed.2d 760. None of the cases above, however, would give the sweeping coverage to the provisions of Art. 38.24, supra, that the appellants urge.

Article 38.24, supra, guards against the possibility of distortion that could arise from use of a portion of a conversation or transaction out of its proper context. The thrust of this statute is to allow the trier of fact to understand exactly what occurred, rather than why it occurred. The requirements of the statute are met when the acts or words are put into the context in which they occurred. Collateral evidence explaining the motives or reasons for the acts or words are not part of the explanation contemplated by the statute. The testimony and documents offered were not part of the transaction as contemplated by Art. 38.24, supra.

The appellants also challenge the admission of the pistol found in Saunders’ purse at the time of her arrest. The purse had been taken from the appellants’ car at the request of Saunders. Before giving the purse to Saunders, the police had searched it and found the pistol.

In Hernandez v. State, Tex.Cr.App., 484 S.W.2d 754, this Court held that:

“This court has consistently held that the state is entitled to prove the circumstances surrounding the arrest. See Jones v. State, Tex.Cr.App., 471 S.W.2d 413, and cases cited therein. An exception to this rule is where the evidence is inherently prejudicial and has no relevance to any issue in this case. A decision as to the admissibility of such evidence lies within the discretion of the trial judge, and this court will not reverse unless a clear abuse of discretion is shown. See generally, Lanham v. State, Tex.Cr.App., 474 S.W.2d 197.” [Footnote omitted.] 484 S.W.2d at 755; accord, Schwenermann v. State, Tex.Cr.App., 501 S.W.2d 319; Cunningham v. State, Tex.Cr.App., 500 S.W.2d 820.

In Cunningham v. State, Tex.Cr.App., 500 S.W.2d 820, this Court held that the trial court abused its discretion by admitting a sawed-off shotgun found in the defendant’s trunk. This shotgun, the Court stated, had not been used during the robbery charged, and thus had no relevance to any issue in the case. 500 S.W.2d at 824. The Court affirmed the conviction, however, holding that since the evidence of guilt was overwhelming no harm resulted from the court’s abuse of discretion. See Atkins v. State, Tex.Cr.App., 515 S.W.2d 904.

In the case at bar, not only is the evidence of guilt overwhelming, but it also is in no way dependent upon the introduction of the pistol in question. Cunningham v. State, supra; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. We conclude that error, if any, in admission of the pistol was at most harmless.

Appellants further contend that the trial court’s failure to apply the law on corroboration to the facts of the case was error. The trial court’s charge to the jury contained only the abstract law on the corroboration required to convict appellants of criminal solicitation. The appellants objected to the charge and properly preserved that objection. The present case appears to be one of first impression on the question of what a jury charge on criminal solicitation must contain.

V.T.C.A. Penal Code, Sec. 15.03(a), states the general principles of what constitutes an offense under that section. Sec. 15.-03(b), supra, provides:

“(b) A person may not be convicted under this section on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.” [Emphasis added.]

Thus, an instruction on Sec. 15.03(b), supra, would go to the basis of a conviction for criminal solicitation.

Sec. 15.03(b), supra, is analogous to Art. 38.14, V.A.C.C.P., which provides:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense corn-mitted; and the corroboration is not sufficient if it merely shows the commission of the offense.”

No corroboration is required under Art. 38.14, supra, when the defendant takes the stand and admits all acts constituting the crime charged. Carr v. State, Tex.Cr.App., 495 S.W.2d 936. An example is when the defendant takes the stand and attempts to establish his defense of entrapment. Carr v. State, supra; Prudhomme v. State, Tex.Cr.App., 495 S.W.2d 941. In Prudhomme, the Court reasoned that once the defendant admits to all the acts constituting the crime the only matter in dispute is the defense of entrapment, not the commission of the offense. 495 S.W.2d at 943. The same reasoning is applicable here.

In the present case, the appellants took the stand and admitted that the acts constituting the crime occurred. By their testimony they raised defenses of entrapment and mistake of fact. Thus, when the appellants themselves corroborated the officers’ testimony, no instruction as to the corroboration of the officers’ testimony was required. The appellants’ testimony at trial that they “played along” with what they perceived as a blackmail scheme, giving rise to their defense of mistake of fact, dispenses with the requirement that their intent that the officers “act on the solicitation” be corroborated. In light of the evidence offered by appellants, we find that the court did not err in overruling the appellants’ objection to the charge.

Appellants also sought an instruction as to the effect of a showing of prior good reputation. The trial court is not required to submit such a charge to the jury. Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106; Kirkpatrick v. State, Tex.Cr.App., 515 S.W.2d 289.

Appellants allege that the trial court erred by failing to grant a new trial based on newly discovered evidence of Ash-worth’s prior police informer activities. This evidence was testimony from a prison inmate that he had been involved in a purchase and sale of guns involving Ashworth. The inmate claimed that Ashworth had sold him the guns and then arranged for him to sell the guns to Mike Taylor, one of the officers involved in the present ease. This evidence was discovered when the inmate’s wife read a newspaper account of the instant case and contacted the appellants’ counsel.

This evidence, if believed, would have served to impeach the testimony of Ash-worth and possibly Taylor.

In Hernandez v. State, Tex.Cr.App., 507 S.W.2d 209, this Court stated:

“The trial court has considerable discretion in granting or denying a new trial on newly discovered evidence. To show that the court abused its discretion by not granting a new trial, the record must reflect: (1) that the evidence was unknown to the movant before trial; (2) that his failure to discover it was not due to want of diligence; (3) that its materiality was such as would probably bring about a different result on another trial, and (4) that it was competent, not merely cumulative, corroborative, collateral, or impeaching. E. g., Powell v. State, Tex.Cr.App., 502 S.W.2d 705.”

The inmate’s testimony offered at the hearing was both cumulative and impeaching. Further, it is unlikely that a different result would have been reached at another trial. We find that the trial court did not abuse its discretion in refusing to grant a new trial.

Appellants also contend that the trial court should have granted a new trial because of the prosecutor’s failure to disclose the results of a follow-up investigation of the other “bump job” mentioned in the tapes. It was shown at the hearing on the motion for new trial that an A.T.F. agent had told an assistant district attorney that the person who had supposedly been hired to do that job presented no threat of carrying out the plot. This was learned by the State on the last day of the trial.

“The standard to be applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony may have had an effect on the outcome of the trial.” Smith v. State, Tex.Cr.App., 516 S.W.2d 415, 417; Crutcher v. State, Tex.Cr.App., 481 S.W.2d 113.

The evidence here would not have made a difference in the outcome of the trial. At best, it could have shown that Spencer had been cheated from the start of the plot concerning the other “bump job,” rather than the person he hired having contracted in good faith and then backed out. Thus, the non-disclosure could have had no effect.

Appellants generally challenge the sufficiency of the evidence. Considered in the light most favorable to the State, the evidence as outlined above is amply sufficient to support the appellants’ convictions.

The judgments are affirmed.

      . The stipulation contained in the record reflects that the word “admissible,” modifying Saunders’ conviction, had been marked through.

      . Evidence was offered that there was a price on Ashworth’s head as the result of his undercover work.

      . These cases all involved either narcotics agents or the prosecutrix in a rape case. In each case either the name of the town had been revealed or the inquiry went only to the residential street address.

      . See Art. 38.14, V.A.C.C.P.

      . Sec. 15.03(b), supra, provides that no person can be convicted of criminal solicitation “. .on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.”

      . The evidence consisted of testimony from various witnesses and various documents relating to the divorce action. The appellants wanted to show that Helene had: used one of the officers’ testimony in the divorce; fired a shotgun at Saunders’ daughter; said she would break Spencer financially; attacked Saunders’ daughter with a baseball bat; tried to run over Spencer’s car; tried to cut Spencer’s throat; had burned her will, leaving her property to Spencer; struck Spencer in the face; had Spencer committed to a mental institution; and had been unfaithful. The appellants also sought to enter copies of the divorce petition, both original and amended, copies of a proposed property agreement, and a copy of her attorneys’ contingent fee contract and settlement.

      . The appellants objected to this omission and submitted a requested charge.
      “Therefore, even if you believe from the evidence beyond a reasonable doubt that the Defendants committed the offense as alleged, you may not convict them, or either of them, unless you further believe beyond a reasonable doubt that the testimony of Lee Ashworth, Danny K. Williams, and Mike Taylor is corroborated by evidence other than that given by the said Lee Ashworth, Danny K. Williams, and Mike Taylor, and that the solicitation was made under the circumstances strongly corroborative of both the solicitation itself and the Defendant’s intent that the said Danny K. Williams act on the solicitation, but if you do not so believe, or if you have a reasonable doubt thereof, you will find the Defendants not guilty.
      “But if you believe from the evidence beyond a reasonable doubt that the testimony of the said Lee Ashworth, Mike Taylor, and Danny K. Williams is corroborated by evidence other than that given by said Lee Ashworth, Mike Taylor, and Danny K. Williams and that the alleged solicitation was made under circumstances strongly corroborative of both the alleged solicitation itself and the Defendants’ intent that the said Danny K. Williams act on such solicitation, and from all of the evidence you further believe beyond a reasonable doubt that the Defendants, or either of them, at the time and place alleged in the indictment committed the offense as alleged, you will find the Defendants, or either of them, guilty as charged.”
      This is the form suggested by Texas Criminal Pattern Jury Charges, Chapter 15.03 (1975).

      . The trial court’s only charge on the law of corroboration was:
      “A person may not be convicted for criminal solicitation on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.”
      This is the form suggested by S. Willson, Texas Criminal Forms, Sec. 91.03 (W. Morrison & T. Blackwell, ed. 1977).


source: Caselaw Access Project

author: ONION, Presiding Judge. VOLLERS, Judge,

license: Public Domain

text:
    Michael Samuel WHITAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 55885.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 1, 1978.
    Rehearing En Banc Denied Nov. 22, 1978.
    H. William Johnson, Houston, for appellant. .
    None appearing for the State.
   OPINION

ONION, Presiding Judge.

Our prior opinion is withdrawn.

The indictment in this case, omitting the formal parts, alleged that appellant on or about May 18, 1976 did “knowingly and intentionally offer to sell a controlled substance, namely: Marijuana, to R. L. FERGUSON.” On September 9, 1976 appellant waived trial by jury and entered a plea of guilty in the 185th Judicial District Court of Harris County. Appellant was convicted, and the court assessed punishment at three (3) years in the Department of Corrections.

An examination of the indictment reveals that it alleges only a misdemeanor. Consequently, we reverse the judgment of conviction and remand the cause to the trial court to be transferred to a court having jurisdiction of the misdemeanor offense. Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976).

Marihuana is a Schedule I controlled substance. Article 4476-15 (Controlled Substances Act), § 2.03(d)(10), V.A.C.S. Its knowing or intentional delivery is prohibited by § 4.05(d) of Article 4476-15, supra. The term “delivery” includes an offer to sell a controlled substance. § 1.02(8) of Article 4476-15, supra. Since an offer to sell marijuana comes within the meaning of “delivery,” a person who knowingly or intentionally offers to sell marihuana commits an offense. However, the inquiry does not end there, as it must next be determined whether a particular offer to sell is a felony or misdemeanor.

§ 4.05(d) of Article 4476-15, supra, as stated above, makes it an offense to knowingly or intentionally deliver (offer to sell) marihuana. Except as provided in § 4.05(f) of Article 4476-15, supra, a knowing or intentional delivery (offer to sell) of marihuana is a felony of the third degree. § 4.05(e) of Article 4476-15, supra. Under § 4.05(f) of Article 4476-15, supra, the knowing or intentional delivery (offer to sell) of marihuana is a Class B misdemeanor if the actor delivers (offers to sell) one-fourth ounce or less without receiving remuneration. Consequently, since the indictment in this case failed to allege the quantity of marihuana which was offered to be sold or whether the offer to sell was for remuneration, it does not allege a felony offense. Suarez v. State, supra, at 603, and cases there cited.

The judgment is reversed and the cause is remanded for proceedings consistent with this opinion.

VOLLERS, Judge,

dissenting.

The majority concludes that an examination of the indictment in this cause reveals that it only alleges a misdemeanor. I disagree.

As pointed out in the majority opinion the Controlled Substances Act prohibits the knowing or intentional delivery of marihuana (Section 4.05(d)). The term “delivery” includes an offer to sell a controlled substance (Section 1.02(8)). However, the majority wrongfully concludes that under Section 4.05(f) of the Controlled Substances Act the knowing or intentional delivery (offer to sell) of marihuana is a class B misdemeanor if the actor delivers (offers to sell) one-fourth ounce or less without receiving remuneration. Such a conclusion is self-contradictory. It is clear that the legislature intended to reduce the punishment for the act of delivery of marihuana where one person made a gift of one-quarter ounce or less of marihuana to another. This exception simply does not fit the transaction described in the instant indictment where there was an offer to sell marihuana.

An examination of the Controlled Substances Act reveals that the word “sale” is not defined as it was under the former penal code. Under Article 725b, Section 1(10) V.A.P.C., 1925, sale was defined as including “barter, exchange, or gift, or offer therefor . . .” Therefore, under the former penal code the word “sale” had a technical meaning that includes any exchange or gift. However, the Controlled Substances Act does not define sale and it therefore is used with its normal meaning. It is apparent that the legislature, in enacting the Controlled Substances Act used the comprehensive term of “delivery” to cover all transfers and attempted transfers but used the phrase “offer to sell” with its normal meaning. The normal meaning of the word “sale” is “the transfer of ownership of and title to property from one person to another for a price.” Webster’s Seventh New Collegiate Dictionary. It has also been defined as “a transfer of the property in a chattel for a consideration . a transfer of personal property at a fixed money price payable in cash or in goods.” Ballantine’s Law Dictionary (3rd Edition, 1969).

From this it should-be apparent that an essential element of sale is the money price which is either fixed by agreement or capable of being ascertained therefrom. Black’s Law Dictionary (4th Edition, 1968).

From this examination it is readily apparent that the term “delivery” is far more comprehensive than the term sale, and when used with its normal meaning the term sale, or offer to sell, means a transfer for remuneration or offer to transfer for remuneration (and excludes a gift). Since it is clear that the legislature only intended to reduce the penalty for delivery of one-quarter ounce or less of marihuana where it was a gift, it is also clear that they did not intend to make an offer to sell one-quarter ounce or less of marihuana a misdemeanor where the offer to sell necessarily included an agreement for remuneration.

It appears that the objection which the majority has to this indictment would be cured if the indictment alleged that the defendant did knowingly and intentionally offer to sell a controlled substance, namely marihuana, for remuneration to R. L. Ferguson. An allegation that an offer to sell is for remuneration is redundant and unnecessary. It would appear that all sales of marihuana are third degree felonies regardless of the amount of the controlled substance involved. For the purpose of the Controlled Substances Act there is no qualitative difference between an “offer to sell” marihuana and any completed sale of marihuana. In other words, an offer to sell is a delivery; however, the phrase “offer to sell” like “sale” reveals more information about the kind of delivery made than the mere allegation of “delivery.”

If the allegation in this indictment was merely that the appellant did “deliver” marihuana, then I would readily agree that the indictment is insufficient to charge a felony because the allegation of delivery would include a transfer of one-quarter ounce or less without remuneration. The same is true if there is an offer to deliver. However, the indictment would be sufficient if it alleged the sale of marihuana without alleging the amount because the term “sale” could not include a gratuitous delivery of one-quarter ounce of marihuana or less. Therefore the allegation in this indictment that there was an “offer to sell” marihuana includes an allegation that there was an offer to transfer for remuneration a controlled substance, and this necessarily negates the exception created by the legislature that it is only a misdemeanor to gratuitously transfer one-quarter ounce or less.

The majority equates an “offer to sell” with a “delivery” for all purposes, and holds that the former phrase therefore fails to allege “whether the offer to sell was for remuneration.” The plain meaning of the word “sell” negates any conclusion that an “offer to sell” is not for remuneration. Any other construction of Section 4.05 of the Controlled Substances Act would require either (1) a redundant allegation in an indictment that a sale of marihuana is “for remuneration” in all cases where the amount is not alleged, or (2) a finding that the intent of the legislature in enacting the statute was to make “offers to sell” one-quarter ounce of marihuana or less misdemeanors. I cannot accept either of such conclusions. The indictment before us is sufficient to allege a felony offense and I would affirm the judgment of the trial court.

I dissent.

DOUGLAS and W. C. DAVIS, JJ., join in this dissent.

      . The statutory spelling of the drug is marih uana. See § 1.02(17) and § 4.02 of Article 4476-15, V.A.C.S. (Controlled Substances Act).

      . Nothing herein precludes re-indictment consistent herewith. Suarez v. State, supra, at 602, footnote one.

      . § 1.02(8) of Article 4476-15, supra, provides:
      “ ‘Deliver’ or ‘delivery’ means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.”

      . § 4.05(d) of Article 4476-15, supra, provides:
      “Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.”

      . § 4.05(e) of Article 4476-15, supra, provides:
      “Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.”

      . § 4.05(f) of Article 4476-15, supra, provides:
      “An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”


author: ROBERTS, Judge. DALLY, Judge. ONION, Presiding Judge, ROBERTS, Judge,

text:
    Shirley James SULLIVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 56864.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 18, 1978.
    Opinion On Rehearing En Banc On Court’s Own Motion Nov. 15, 1978.
    Craig W. Uhran, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and John Holleman, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for rape. The appellant entered a plea of guilty, and after a trial before the court, the trial judge assessed the appellant’s punishment at sixteen years in the Texas Department of Corrections.

The appellant’s sole contention is that the trial judge erred by failing to withdraw sua sponte the appellant’s guilty plea. We affirm.

On March 22, 1977, the appellant waived a trial by jury and entered a plea of guilty before the court pursuant to Article 1.13, Vernon’s Ann.C.C.P. See Article 1.15, Vernon’s Ann.C.C.P. The State introduced a sworn stipulation signed by the appellant which stated, in part, that:

“On October 12, 1976, in Harris County, Texas, I did intentionally and knowingly by force and threats to [the complainant], a female not his wife, have sexual intercourse with [the complainant] and without her [the complainant’s] consent.”

The trial judge then found the appellant guilty, ordered the probation department to prepare a presentence investigation, and set the sentencing for April 19, 1977.

On April 19, 1977, the trial judge reconvened the proceeding. At that time the appellant introduced evidence which allegedly raised an issue of the appellant’s guilt. Therefore, the appellant contends that the trial judge should have sua sponte withdrawn the appellant’s guilty plea.

It is well established that the obligation of the trial judge to withdraw a plea of guilty sua sponte . . arises only where the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn.” Gonzales v. State, 480 S.W.2d 663, 664 (Tex.Cr.App.1972); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976).

During the appellant’s testimony, the following occurred:

“Q [by Defense Counsel]: How would you characterize these involvements? [The rapes] Were they consensual?
“A Yes, sir.
* * * * * *
“Q [by Prosecutor]: Well, didn’t you plead guilty to intentionally and knowingly by force and threat to Connie Sue Stalarsky, a female not his wife, have sexual intercourse with Connie Sue Stalarsky without the consent of the complainant on October the 12th, 1976, some five or six months after you first started seeing Dr. Dunbar?
“A Right. But I signed that to get this dang problem over with with the advice of my attorney even though I knew it was wrong.
“Q Okay. You’re saying that didn’t happen?
“THE COURT: Are you telling me that you lied up here when I asked you if you were pleading guilty because you were guilty and for no other reason? Is that what you’re telling me?
“THE DEFENDANT: Well, in a sense.
“THE COURT: I want a yes or no. Are you saying you lied when I asked you if you were guilty and you told me you were?
“THE DEFENDANT: I was guilty.
“THE COURT: Are you telling me you lied when you stood up in front of me?
“THE DEFENDANT: Not really. All I stated is the fact on there didn’t agree with me in what the State—
“THE COURT: I’m asking you, you told the prosecutor that that wasn’t true and you just lied about it.
“THE DEFENDANT: I said part of it wasn’t true. Maybe—
“THE COURT: I’m talking about the date.
“THE DEFENDANT: Maybe it was the wording I didn’t like.
“THE COURT: I’m talking about the date.
“MR. UHRAN: Your Honor—
“THE COURT: I’m talking about the date.
“THE DEFENDANT: The date?
“THE COURT: Yes, October of 1976?
“THE DEFENDANT: Right.
“THE COURT: Now, you’re saying it didn’t happen on that date?
“THE DEFENDANT: Not to my knowledge, sir.
“THE COURT: Well, why did you stand up here and plead guilty in front of me and say that it did?
“THE DEFENDANT: I wasn’t pleading guilty to the date, sir. I was pleading guilty to the charge, because I was guilty of that. I’m sorry. I have had relations with Connie and I pleaded guilty to that. Maybe there was a misunderstanding there somewhere. I’m sorry.
“THE COURT: You recall me reading the Stipulation of Evidence to you?
“THE DEFENDANT: Yes, sir.
“THE COURT: And I told you the date that it was alleged to have occurred on. Do you recall me asking you that?
“THE DEFENDANT: Yes, sir. I recall the reading of the stipulation.
“THE COURT: And you signed and you swore that it was true in front of the clerk.
“THE DEFENDANT: Yes, I did.
“THE COURT: And you stood up here in front of me and told me it was true.
“THE DEFENDANT: Yes, I did.
“THE COURT: Now, you’re saying it’s not true?
“THE DEFENDANT: I’m saying it didn’t happen on that date.
“THE COURT: What date did it happen on?
“THE DEFENDANT: Oh, a few months before that. In fact, it’s factual to a point, but to a point it wasn’t. I’m sorry.
“THE COURT: Go ahead.
“Q (By Mr. Holloman) Are you denying that that happened within the last year?
“A No, sir.
“Q It happened sometime during 1976?
“A Yes, sir.
“Q A couple of months, you say, before October the 12th, 1976?
“A Yes, sir.
“Q Maybe in September, maybe in August?
“A It might have.
* * * ft

The appellant’s wife testified to the following:

“Q [by Defense Counsel]: You were aware that it was going on?
“A Sometimes.
“Q The times that you were aware that it was going on, did it seem forced to you?
“A No, sir.
* * ⅜ * * *
“Q Okay. Have you ever seen him threaten any of the girls?
“A No, sir.”

We hold that the foregoing testimony reasonably and fairly raised an issue of the appellant’s guilt.

However, the State, relying on Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (1959); Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953); and Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W. 594 (1947), contends that “. . . once the judge found appellant guilty, and took the case under advisement for a pre-sentence investigation, it was too late for appellant to withdraw his guilty plea.”

In Ralls, the defendant pleaded guilty before the court. After the trial judge had heard the evidence, he stated that he was of the opinion that the defendant was guilty, but that he had not determined whether he would suspend the defendant’s sentence. Subsequent thereto, the trial judge decided that he would not suspend the defendant’s sentence. The defendant then attempted to obtain the court’s permission to plead guilty before a jury. After the trial judge denied the defendant’s request to plead guilty before a jury, the defendant then attempted to withdraw his plea of guilty. The trial judge refused to allow the defendant to do so.

On appeal, this Court stated that where a guilty plea is entered before the court,

. . the judge takes the place of the jury and when the formalities have been complied with, the evidence heard, and the judge takes the case under advisement it is very similar to the retirement of the jury to consider its verdict. In the present case, however, the judge announced that he found appellant guilty; that was his judgment on that phase of the case, and he only took under advisement whether to suspend the sentence. The judgment of the court was his announcement of what he had decided to do, the entry of same in the records of the court was evidence of the judgment.” Ralls v. State, supra at 596.

Cf. Milligan v. State, supra; Stanton v. State, supra.

In the present case, the trial judge entered a verdict of guilty. A hearing on punishment was conducted almost a month later. At that time, the appellant’s guilt had already been adjudicated. Therefore, we hold that the trial judge was under no obligation to withdraw the appellant’s guilty plea. Ralls v. State, supra. Cf. Moon v. State, 572 S.W.2d 681 (Tex.Cr.App.1977). The appellant’s contention is overruled.

The judgment is affirmed.

OPINION ON REHEARING EN BANC ON THE COURT’S OWN MOTION

DALLY, Judge.

On original submission Panel No. 3 for the First Quarter, 1978, found that the evidence fairly raised an issue of the appellant's guilt, but held that since this evidence was not offered until after an adjudication of guilt, the court did not err in failing to withdraw the appellant’s plea of guilty. We now affirm the appeal on the authority of Moon v. State, 572 S.W.2d 681 (No. 54,352, decided Oct. 4, 1978 on the State’s motion for rehearing).

The appellant waived a jury trial and entered his plea of guilty before the court. We held in Moon v. State, supra, that when a plea of guilty is before the court it need not be withdrawn and a plea of not guilty entered when evidence is introduced that might reasonably and fairly raise the issue of fact as to the guilt of the defendant. The trial judge as the trier of the facts may without withdrawing the plea decide the issue either finding the defendant not guilty or guilty as he believes the facts require. The trial court did not err in failing to withdraw the appellant’s plea of guilty.

The judgment is affirmed.

ONION, Presiding Judge,

concurring.

Appellant relies upon the rule that where a defendant has entered a guilty or nolo contendere plea in a felony case, whether before judge or jury, and the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required to sua sponte enter a not guilty plea for the defendant. See e.g., Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915); Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180 (1923); Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1973); Woodberry v. State, 547 S.W.2d 629 (Tex. Cr.App.1977). See also Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976); Alien v. State, 559 S.W.2d 656 (Tex.Cr.App.1977).

After a careful examination of the record, I cannot conclude that the evidence made evident the innocence of the appellant or reasonably and fairly raised an issue of such fact. For this reason, I concur in the result reached.

I dissent to the disposition of this case on the basis of the decision in Moon v. State, 572 S.W.2d 681 (Tex.Cr.App. # 54,352, June 29,1977 — rehearing Oct. 4,1978.) (On State’s Motion for Rehearing). There the court held that the above discussed rule no longer has application to pleas of guilty or nolo contendere in a bench trial yet was still applicable to jury trials. Thus, a well established rule is split in two, despite the fact that it has been applied consistently to both types of trials before and after the 1965 Code of Criminal Procedure. The better view is set forth in the opinion on original submission in Moon. I dissent to the disposition of this case on the basis of the opinion in Moon on State’s motion for rehearing.

ROBERTS, Judge,

concurring in part and dissenting in part on rehearing en banc upon Court’s own motion.

For the reasons stated in my opinion on original submission, I agree that the judgment should be affirmed. However, I remain convinced that the testimony at the punishment hearing reasonably and fairly brought the appellant’s guilt into question. However, because the trial judge had already found the appellant guilty, the issue was raised too late to require the judge to withdraw appellant’s plea.

VOLLERS, J., joins in this opinion.

      . Ralls, Milligan, and Stanton all involved the trial judge’s discretion to allow a defendant to withdraw a plea of guilty. Therefore, they are distinguishable from the present case since we here deal with the duty of the trial judge to withdraw a plea of guilty. However, the logic and policy of Ralls, Milligan, and Stanton are equally applicable to the present case.


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

text:
    Arthur Daniel IRVING, Appellant, v. The STATE of Texas, Appellee.
    No. 54675.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 17, 1978.
    State’s Motion for Rehearing En Banc Denied Nov. 29, 1978.
    Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton, James K. Johnson and David C. Schick, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. Punishment was assessed at twenty years.

Karen Hinton, an employee of McDonald’s restaurant on Lemmon Avenue in Dallas, identified appellant as the person who held the gun when three men robbed the manager, Steven Webb, on March 28, 1974. Webb was unable to make a positive identification of appellant. The defense of alibi was raised by evidence presented by appellant and the court instructed the jury on the law relating to such defense.

Among other grounds of error advanced, appellant contends, “The prosecutor committed reversible error in arguing to the jury that it should rely upon his expertise in setting the punishment in this case, as said argument injected harmful, unsworn testimony before the jury and the personal opinion and knowledge of the prosecutor, and was not based upon the evidence in the case.”

The record reflects the following occurred at the end of the State’s closing argument at the punishment stage of the trial:

“The proper punishment in this case, I ask you to rely upon my expertise in these matters, rely upon the Texas Department of Corrections, on what the proper thing to do with this man is— “MR. ELLIS [defense counsel]: Your Honor, we will object to that. To that argument on relying on his expertise, with respect to this matter.
“THE COURT: Overruled. Go ahead. “MR. JOHNSON [prosecutor]: The only proper punishment in a case like this, and I am not talking about strong armed— strong-arming lunch money from some kind off of a playground, is forty-five years confinement in the Texas Department of Corrections.” [Emphasis supplied.]

It is the duty of counsel to confine their arguments to the record; reference to facts that are neither in evidence nor infer-able from the evidence is therefore improper. Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230; 56 Tex.Jur.2d, Trial, Section 271, p. 613.

There was no evidence of the prosecutor’s expertise in the record. Such evidence would not have been admissible had it been offered.

In the recent ease of Hughes v. State, Tex.Cr.App., 563 S.W.2d 581, complaint was made of a similar argument. There the prosecutor argued, “I know this, that out of the thirteen of us I am the more expert at assessing punishment for crimes and for assessing penalties . . . .” There we found, “The argument was clearly improper; however, the court's prompt instruction to disregard rendered the error harmless.” As in Hughes, the argument is “clearly improper” but, unlike Hughes, the court herein overruled the objection and said, “Go ahead,” whereupon the prosecutor argued that the “only proper punishment in a case like this — is forty-five years confinement.”

Having determined that the complained-of argument was error, we next turn to the question of whether such error was so harmful as to require reversal. The State urges that since the prosecutor recommended forty-five years and the jury assessed twenty years, the argument had “no adverse effect on the minds of the jurors” and “no harm has been shown.” The punishment range for aggravated robbery is life or for any term of not more than 99 years or less than five years. Appellant made a motion for probation, testified that he had never before been convicted of a felony, and the court charged the jury relative to it being in their discretion to place appellant on probation in the event that it did not fix punishment in excess of ten years. Counsel for appellant in his argument to the jury asked that punishment be probated.

Hardly a day passes but what our newspaper contains stories of numerous robberies in every city. In light of this alarming fact, it might be argued that one who is convicted of aggravated robbery cannot be heard to complain when punishment is assessed at twenty years. To accept this argument would be to lose sight of the fact that the Legislature has fixed the minimum punishment for this offense at five years. In addition, it is provided that one has never before been convicted of a felony is eligible for probation if punishment does not exceed ten years. In light of these facts, we are not left free to speculate that the error in the prosecutor’s argument had no effect on the punishment assessed by the jury.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting opinion on State's motion for leave to file motion for rehearing.

A majority refuses to grant leave to file the State’s motion for rehearing. On original submission, the cause was reversed because the prosecutor argued at the punishment stage of the trial the proper punishment in this case, “I ask you to rely upon my expertise in these matters. Counsel objected that the argument was relying upon his expertise. The prosecutor then argued that the only proper punishment in the case was forty-five years. The jury paid little attention to the prosecutor and assessed the punishment at twenty years. The Court pointed out that if he got ten years it was possible he could have had probation.

One of the most important factors in determining whether the argument creates reversible error is in the effect it has on the jury. Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App. 1972); Brown v. State, 475 S.W.2d 761 (Tex.Cr.App. 1972); and Myer v. State, 416 S.W.2d 415 (Tex.Cr.App. 1967).

It is inconceivable that the jury would deny a defendant probation or assess ten years extra in a case because the prosecutor said he had expertise or had experience in the trial of criminal cases.

Leave to file the motion for rehearing should be granted and the judgment should be affirmed.


author: DALLY, Judge.

text:
    Jay J. ARMES, Appellant, v. The STATE of Texas, Appellee.
    No. 58902.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.
    Rehearing En Banc Denied Nov. 22, 1978.

      Marshall I. Yaker, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Paul J. Kubinski, Asst. Dist. Atty., El Paso, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an attempt to appeal from an order of the 34th District Court of El Paso County ordering the appellant to go to California to appear before a Grand Jury in San Diego County, California, and an attempt to appeal from an order denying habeas corpus relief.

The district court held a hearing on May 31, 1978, pursuant to Art. 24.28, V.A.C.C.P., in which it determined on the basis of a certificate issued by the Superior Court of California, for San Diego County, and the testimony of appellant, that an order for summons should issue. Appellant was ordered to appear before the San Diego Grand Jury on June 14, 1978. Appellant filed notice of appeal to this Court from that order, and also applied for a writ of habeas corpus from the district court. After a hearing on June 9, the district court denied appellant relief, and appellant appealed to this Court. Appellant complains that the district court erred in its findings of fact and admission of evidence at the original hearing, and also erred in refusing to suspend its judgment pending appeal.

Without expressing any opinion on the merits of the appellant’s contentions, we must first decide whether the trial court’s order that the appellant appear before the Grand Jury in California can be appealed. The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law. Art. V, Sec. 5 of the Texas Constitution. The Legislature can make such exceptions and regulations regarding appeal as it desires. Walker v. State, 537 S.W.2d 36 (Tex.Cr.App.1976); Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315 (1951); Millican v. State, 145 Tex.Cr.R. 195, 167 S.W.2d 188 (1943); Ex parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805 (1930). The Legislature has provided for the general right of appeal from convictions in Art. 44.02, V.A.C.C.P., which states that “A defendant in any criminal action has the right of appeal . . .” Appellant argues that his cause “must surely be noted and classified as a criminal action, which is subject to appeal pursuant to Art. 44.02, V.A.C.C.P.” But as the State correctly points out, Art. 44.02, supra, speaks to the rights of a “defendant” in a “criminal action.” Appellant has not been charged with or convicted of a criminal offense, and therefore is not a defendant. Moreover, neither the fact that the district court order was incident to a criminal case, nor that appellant’s conduct violated a provision of the Code of Criminal Procedure assures that this Court has jurisdiction to hear an appeal of the matter. Walker v. State, supra; Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974); Swanson v. State, 169 Tex.Cr.R. 390, 334 S.W.2d 179 (1960). Art. 24.28, supra, by its terms does not provide for a right of appeal from the district court’s order; we find no statutory authority which would support an appeal from such an order. As we stated in Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970):

“One seeking to invoke the jurisdiction of this Court must point to some constitutional or statutory provisions conferring such right and bring himself within the procedure prescribed. See Ex parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805. This the relator had not done.”

We hold that the district court’s order under Art. 24.28 is not appealable to this Court. The validity of the court order may be determined by a habeas corpus proceeding in proper circumstances.

Turning to the appeal of the district court’s denial of habeas corpus relief, we note that the appeal is properly before this Court only if appellant is under some form of restraint of liberty. Art. 11.01, V.A.C.C.P.; Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777 (1951). Appellant admits, and the record reflects that he is under no such restraint. He is not imprisoned, or on bail, nor has he been held in contempt of court for failing to comply with the court’s order. Thus, the habeas corpus question is moot. Ex parte Putnam, 456 S.W.2d 916 (Tex.Cr.App.1970); Ex parte Brown, 374 S.W.2d 895 (Tex.Cr.App.1964); Ex parte Campbell, 251 S.W.2d 540 (Tex.Cr.App.1952).

There being no right of appeal of the district court order issued pursuant to Art. 24.28, and the habeas corpus question being moot, this consolidated appeal is dismissed. It is so ordered.


author: TOM G. DAVIS, Judge.

text:
    Billy Wayne NELSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55252.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 25, 1978.
    Rehearing En Banc Denied Nov. 22, 1978.

      Dalford Todd, Dallas, for appellant.
    Henry Wade, Dist. Atty., Fred C. McDaniel, Winfield W. Scott and D. Mark Elliston, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for voluntary manslaughter. V.T.C.A. Penal Code, Sec. 19.04. Appellant was indicted for the offense of murder and after a trial before the court was found guilty of voluntary manslaughter. Punishment was assessed at eight years.

It is undisputed that the appellant shot and killed the deceased, his stepfather, on the evening of December 24, 1975. The shooting occurred in the kitchen of appellant’s home, where his mother and the deceased had been living for several months.

On the evening of the offense, the appellant had called his mother, asking her to prepare dinner for him. When he arrived at home, he found that the deceased was intoxicated. An argument arose between the appellant and the deceased over the position of a window shade in the kitchen. According to the appellant and his mother, the only eyewitnesses, the deceased cursed the appellant and an altercation ensued. The deceased pulled a pocket knife and advanced toward the appellant. The appellant left and went next door to his brother’s home, where he obtained a rifle and returned to confront the deceased. Appellant ordered the deceased out of his home, at which point, according to the appellant, the deceased lunged at him and appellant fired once, mortally wounding the deceased.

Appellant initially contends that his indictment for murder was defective because it alleged that appellant caused the death of the deceased “by shooting the said Edgar Earl Hume with a rifle. . . It is appellant’s position that the indictment must state that a “rifle” is a “gun” or it is insufficient.

Appellant filed a motion to quash, which he argues apprised the trial court specifically of his complaint.

Appellant argues that the word “rifle” may be used in a number of ways, only one of which means a firearm.

An indictment charging the offense of murder must allege the means used to commit the offense if this is known to the grand jury. The appellant in his brief concedes that an indictment that alleges murder “by shooting him with a gun” is a sufficient allegation of means. See e. g., Dickson v. State, 113 S.W.2d 528 (Tex.Cr.App.).

In O’Briant v. State, 556 S.W.2d 333 (Tex.Cr.App.1977), an aggravated robbery case, the indictment charged that the defendant committed the offense by “using and exhibiting a deadly weapon, to-wit: a firearm.” The defendant contended on appeal that the use of the word “firearm” was too general. In rejecting the defendant’s contention, this Court stated:

“We find ‘firearm’ to be far less vague and general than the word ‘gun.’ It could reasonably be urged that the word ‘gun’ is broad and general enough to include such diverse instrumentalities as a ‘BB gun,’ a ‘blow gun,’ a ‘pop gun,’ or even a ‘grease gun.’ Clearly, the word ‘firearm’ has a much more limited meaning.” O’Briant v. State, supra.

We further note that the word “gun” is defined by Black’s Law Dictionary, 4th ed., as follows:

“A firearm for throwing a projectile with gunpowder. Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249. A portable firearm such as a rifle, shotgun, carbine, etc. Henderson v. State, 75 Fla. 464, 78 So. 427, 428. A pistol or revolver. State v. Christ, 189 Iowa 474, 177 N.W. 54, 57.” [Emphasis added.]

Likewise, the term “firearm” is defined in V.T.C.A. Penal Code, Sec. 46.01(3), as:

“Any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . . . ”

V.T.C.A. Penal Code, Sec. 46.01(10), defines “short-barrel firearm” as, “A rifle with a barrel length of less than 16 inches . .” [Emphasis added.]

It is thus clear that in alleging that the offense was committed with a “rifle” instead of a “gun,” the State was pleading more specifically than it was required to do. No error is shown.

Appellant next contends that he recklessly caused the death of the deceased and is therefore only guilty of involuntary manslaughter rather than voluntary manslaughter, as found by the court.

Section 19.04, supra, “Voluntary Manslaughter,” provides:

“(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
“(b) ‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
“(c) ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
“(d) An offense under this section is a felony of the second degree. Amended by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, § 1, eff. Jan. 1, 1974.”

V.T.C.A. Penal Code, Sec. 19.05, provides that a person commits the offense of involuntary manslaughter if he “(1) recklessly causes the death of an individual . . .”

V.T.C.A. Penal Code, Sec. 6.03(c), provides:

“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Appellant’s testimony reflects that after the altercation with his stepfather he went to his brother’s home next door, obtained a rifle from the closet, loaded it, “chambered that bullet,” and returned to confront the deceased. He testified that the deceased lunged toward him “and the next thing, I guess instincts, man, I just — it just went off.”

The court as the trier of the facts could have accepted appellant’s testimony that he was at the scene of the crime with a gun in his possession and rejected any statement by appellant that the gun accidentally went off. Valore v. State, 545 S.W.2d 477 (Tex.Cr.App.). Further, when a deadly weapon is used, as in the instant case, a presumption arises that the accused intended to kill the victim. Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.); Valore v. State, supra. We find the evidence supports the conviction.

Appellant next contends that his testimony shows self-defense or defense of another. Although raised by the evidence in this case, self-defense and defense of another are to be determined by the trier of fact. The evidence is clearly sufficient to support the trial court’s finding of guilty of voluntary manslaughter and does not show self-defense as a matter of law. Appleman v. State, 531 S.W.2d 806 (Tex.Cr.App.1976); Powers v. State, 497 S.W.2d 594 (Tex.Cr. App.1973); Whitfield v. State, 492 S.W.2d 502 (Tex.Cr.App.1973).

Appellant’s final contention is that the trial court should have granted him probation. We find this contention without merit since the law is settled that the decision of whether or not to grant probation is absolutely within the discretion of the trial judge and that the decision not to grant probation is not appealable. Waddell v. State, 503 S.W.2d 570 (Tex.Cr.App.1974); Brown v. State, 478 S.W.2d 550 (Tex.Cr.App.1972); Hall v. State, 418 S.W.2d 810 (Tex.Cr.App.1967).

The judgment is affirmed.

      . V.T.C.A. Penal Code, Secs. 9.31, 9.32.

      . V.T.C.A. Penal Code, Sec. 9.33.


author: VOLLERS, Judge.

text:
    Anastacio GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 54798.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 8, 1978.

      Dick Stengel, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Thomas C. Roepke, Asst. Dist, Atty., El Paso, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

Appellant was convicted in a trial before the court of indecency with a child pursuant to V.T.C.A. Penal Code, Section 21.11(a)(2). On finding appellant guilty, the court assessed his punishment at five years confinement in the Texas Department of Corrections.

It was alleged by indictment that appellant “on or about the 29th of September, 1975 . . . did . . . intentionally and knowingly with intent to arouse and gratify the sexual desire of the said Anasta-cio Garcia expose to R- G-, a child not his spouse younger than 17 years of age, the genitals of the said Anastacio Garcia, the said Anastacio Garcia then and there knowing that the said R_ G_was present.” R_ G_, appellant’s 13 year old daughter, as well as three of appellant’s other daughters, aged 16, 12 and 11, testified to incidences of their father’s inducing them to masturbate him at various times over a period of several years. The testimony reflected that appellant had begun such course of conduct with his daughters when each was between four and six years of age. There was also testimony that appellant had forced two of the daughters to engage in other deviate sex acts with him. Each of the children testified that she had been afraid to advise older brothers and sisters, or their mother, of their father’s behavior, and had done so only recently on being questioned.

After the testimony of the children was completed, the State called Mrs. Carmen F. Garcia, the wife of appellant, who testified as to facts cumulative of the testimony of the children.

By his first ground of error, appellant contends that the competence of the children to testify was not established by the trial court pursuant to Article 38.06, V.A.C. C.P., and it was error for the court to overrule his objections thereto. As presented, such ground of error is multifarious and presents nothing for review. Kalmbach v. State, 481 S.W.2d 151 (Tex.Cr.App.1972). Even if properly before this Court, such contention does not present reversible error.

It is well settled that the competence of a child witness is a question for the trial court and will not be disturbed on appeal absent an abuse of discretion. Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977); West v. State, 511 S.W.2d 502 (Tex.Cr.App.1974); Fields v. State, 500 S.W.2d 500 (Tex.Cr.App.1973); Hill v. State, 480 S.W.2d 670 (Tex.Cr.App.1972); Williams v. State, 439 S.W.2d 846 (Tex.Cr.App.1969). The record reflects that the trial court conducted a brief examination of each child as to her age, grade in school, understanding of the proceedings, understanding of the difference between truth and deception and understanding of her duty to tell the truth, before ruling on her competence.

In addition to the answers given in each preliminary examination, a review of each of the children’s entire testimony reveals no abuse of discretion in the trial court’s determination that each was competent to testify. Clark v. State, supra; West v. State, supra; Fields v. State, supra; Jundt v. State, 164 Tex.Cr.R. 437, 300 S.W.2d 73 (1957); Hines v. State, 160 Tex.Cr.R. 284, 268 S.W.2d 459 (1954). The first ground of error is overruled.

In his second ground of error, the appellant contends that the trial court erred in overruling appellant’s objection to the testimony of his wife, as the record shows that such testimony was not voluntary within the meaning of Article 38.11, V.A.C. C.P. A review of Mrs. Garcia’s testimony reveals that she was not subpoenaed, but merely advised to appear for trial. She further stated that she testified because she wanted to and that her testimony was voluntary, of her own free will, and not the result of any threat, force or coercion. At the close of the trial, the court explained to the witness the import of Article 38.11, supra, and inquired of her whether her “testimony in this trial [had] been voluntary,” to which inquiry she replied in the affirmative. Ground of error number two is without merit and is overruled.

However, in regard to this second ground of error it is noticed that there is unassigned error which must be considered. When Mrs. Garcia was called as a witness by the State, it appears that the appellant’s counsel asserted the privilege provided by Article 38.11, supra, and objected to her testimony. This objection was overruled. The objection was not based upon the fact that she was not “a voluntary” witness, but rather upon the assertion of the privilege afforded by Article 38.11, supra. Even though there was an objection we note in passing that the past decisions of this Court have indicated very strongly that the disqualification of a spouse as an adverse witness may not be waived. Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972); see also Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977). Therefore, the question of whether or not Mrs. Garcia’s testimony was voluntary is not dispositive of the issue if she was disqualified as a witness in this ease. It appears that the question which must be resolved is whether or not this case falls into the category of the exception created by Article 38.11, supra, providing that a husband or wife may voluntarily testify against the other “in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under 16 years of age . . .” [Emphasis added.]

It appears that the question of whether an offense “involves” any grade of assault does not depend upon the allegations in the charging instrument but must be determined from the facts and circumstances in the particular case. As was noted in Tew v. State, 551 S.W.2d 375 (Tex.Cr. App.1977), an allegation that a prior felony conviction for burglary involved an act of violence was not dependent upon the allegations in the indictment, but rather upon the proof in the facts of the case. See also Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976). Since it appears that we are not bound by the allegations in the charging instrument to determining whether or not the case involves “any grade of assault or violence,” we must determine that issue from the facts presented. As was previously noted, the complainant, appellant’s 13 year old daughter, testified that the exposure involved in this ease occurred when appellant forced the complaint to masturbate him. This testimony outlines a fact situation which would constitute an assault under V.T.C.A. Penal Code, Section 22.01 which provides in part:

“(a) A person commits an offense if he: * * * * * *
(3) intentionally or knowingly causes physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative.”

Even though this conduct would only be a Class C misdemeanor under the provisions of Section 22.01, supra, it is also clear that the instant case is one “involving” a grade of assault committed by the appellant against the child of the witness who was under 16 years of age. Therefore, we conclude that the wife was a competent witness in this case.

In appellant’s third ground of error he alleges that the trial court erred in permitting the testimony by appellant’s 12 year old daughter and his 16 year old daughter “which was repetitious, immaterial, irrelevant and inflammatory in regard to the offense [with] which appellant was charged.” It appears from his brief that appellant’s complaint is directed at testimony given by these witnesses regarding extraneous offenses committed by the appellant. Their testimony reflects that appellant committed similar acts to them as described by the complainant. Though appellant’s objection at the trial to the testimony of the 12 year old daughter comports with his ground of error, the objection was not made until after the State’s direct examination of the witness was completed. Objection must be made at the first opportunity to be considered timely. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976).

Even if the objection had been timely, as it was in the case of the testimony from the 16 year old daughter, it was not specific enough to inform either the trial court or opposing counsel that the complaint went to extraneous offenses for which appellant was not then on trial, and was insufficient to preserve the question for review. Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977).

Furthermore, even if the matter were preserved for review, prior authorities of this Court authorize the introduction of such testimony as that complained of in order to put the testimony of the thirteen year old daughter in its proper perspective. The testimony of the three other daughters about which the appellant now complains was admissible for the purposes of illustrating appellant’s guilty knowledge, McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974), his unnatural attention toward the complaining child witness, as well as the probability of the act. Johnston v. State, 418 S.W.2d 522 (Tex.Cr.App.1967).

There being no reversible error presented, the judgment of the trial court is affirmed.

      . Section 21.11 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: * * * * * *
      (2) exposes his anus or any part of his genitals, knowing the child is present, with intent to gratify the sexual desire of any person.

      . Article 38.06, supra, provides in relevant part: All persons are competent to testify in criminal cases except the following:
      2. Children . . . who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.

      . Article 38.11, V.A.C.C.P. provides:
      [A] husband and wife may, in all criminal actions be witnesses for each other, but except as herein provided, they shall in no case testify against each other in a criminal prosecution. However, a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under 16 years of age, or in any case where either is charged with incest of a child of either, or in any case where either is charged with bigamy, or in any case where either is charged with interference with child custody, or in any case where either is charged with nonsupport of his or her spouse or minor child. [Emphasis supplied.]


author: ODOM, Judge.

text:
    Arthur PAIGE, III, Appellant, v. The STATE of Texas, Appellee.
    No. 55298.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 8, 1978.

      Ed Stapleton, on appeal only, Denton, for appellant.
    Gerald W. Cobb, Dist. Atty., and Freddie Dean Marsh, Asst. Dist. Atty., Denton, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for voluntary manslaughter in which punishment, enhanced by proof of one prior conviction, was assessed by the jury at life.

In his first two grounds of error appellant challenges the sufficiency of the evidence to prove voluntary manslaughter on grounds that voluntary manslaughter is not a lesser included offense of murder and the State failed to prove the element of voluntary manslaughter that appellant was acting “under the immediate influence of sudden passion arising from an adequate cause” when he caused the death. V.T. C.A., Penal Code Sec. 19.04(a).

The evidence is clearly sufficient to show murder, and it is not necessary to address the sufficiency of the evidence in that regard in order to dispose of appellant’s grounds of error. His arguments rest on the statutory definitions of murder, V.T. C.A., Penal Code Sec. 19.02, and voluntary manslaughter, Sec. 19.04, supra.

Section 19.02(a)(1) provides:
“(a) A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; . . . ”
Section 19.04(a) provides:
“A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.”

Appellant’s arguments are founded on the proposition that acting “under the immediate influence of sudden passion arising from an adequate cause” is an element of voluntary manslaughter, and from this premise he argues in his first ground of error that voluntary manslaughter cannot be a lesser included offense of murder, and in his second ground of error that the State did not prove that element beyond a reasonable doubt.

In Braudrick v. State, 572 S.W.2d 709, it was held that acting “under the immediate influence of sudden passion arising from an adequate cause” is not an element of voluntary manslaughter, but is instead in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary manslaughter. Therefore, the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter.

Since the evidence here was sufficient to prove murder, the greater offense, it was necessarily sufficient to prove voluntary manslaughter, the lesser included offense. Cf. Neely v. State, 571 S.W.2d 926. The first two grounds of error are overruled.

In his next two grounds of error appellant challenges the sufficiency of the evidence to convict him for possession of a firearm by a felon, V.T.C.A., Penal Code Sec. 46.05. Although this offense was submitted to the jury at the guilt stage of the trial, and a guilty verdict was returned, the State apparently abandoned that offense and elected to proceed only on the voluntary manslaughter conviction. We reach this conclusion because at the punishment stage the jury was instructed to assess punishment upon their finding of guilt for voluntary manslaughter, and judgment of conviction was entered for voluntary manslaughter, not for the firearms offense. Accordingly, the issues raised in the third and fourth grounds of error are moot.

Appellant next complains of omission from the record on appeal of statements sought from the prosecutor during the course of trial. The relevant portion of the record reflects:

“THE COURT: Motion for production of and inspection of evidence and information which may lead to evidence.
“MR. MARSH [Prosecutor]: All right. Your Honor, I would like the record to reflect that of the witnesses called by the State, that the Defense Attorney has been given the offense report of the police officers, that he has received or has been given a copy for the purpose of cross examination of all the witnesses that were called from whom statements were taken, specifically Thomas Jones and Fred Washington.
“THE COURT: Is that all?
“MR. MARSH: I will give the Defense attorney the statement of Linda Bran-ham, Joe Conners and Odell Lucas, witnesses not called by the State, your Hon- or, and Mae Frances Royce, who is also a witness not called by the State. There are other statements which we feel do not contain any exculpatory matters or inculpatory matters, and other than color photos, which are the same that the State has introduced as exhibits here, we have no other physical or tangible evidence. '
⅜ * * * * *
“MR. COBB [Defense counsel]: Your Honor, I would like for you to examine the other statements that they have in relationship to my request to determine, in your mind, as to whether they are exculpatory, and if you feel like they are not I would like to have them sealed and placed in the record.
“THE COURT: I will do that during the noon hour.”

The record does not contain a sealed packet of statements. Neither, however, does it contain an adequate post-trial request that the matter be included, nor is there any objection to the record. Art. 40.09(7), V.A.C.C.P. Cf. Zanders v. State, Tex.Cr.App., 480 S.W.2d 708, 711. Nothing is presented for review.

Finally, appellant complains that evidence given by an expert constituted inadmissible hearsay. The ground of error is multifarious in that it raises objections to the autopsy report and to various testimony, which objections are scattered over seven pages of the record. The evidence was offered to show the cause of death. From argument under this ground of error, it appears that appellant is basing this ground of error entirely on the admissibility of the autopsy report. Although the requisites for its admission as a business record were not developed, we note that appellant’s general objections at trial that a proper predicate was not laid were insufficient to preserve error. Cf. Harris v. State, 565 S.W.2d 66, 69-70. The ground of error is overruled.

The judgment is affirmed.